[Federal Register Volume 77, Number 63 (Monday, April 2, 2012)]
[Proposed Rules]
[Pages 19755-19797]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7198]



[[Page 19755]]

Vol. 77

Monday,

No. 63

April 2, 2012

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; 12-Month Finding on a 
Petition to List the San Francisco Bay-Delta Population of the Longfin 
Smelt as Endangered or Threatened; Proposed Rule

Federal Register / Vol. 77 , No. 63 / Monday, April 2, 2012 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2008-0045: 4500030113]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition to List the San Francisco Bay-Delta Population of the 
Longfin Smelt as Endangered or Threatened

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 list the San Francisco Bay-Delta 
distinct population segment (Bay Delta DPS) of longfin smelt as 
endangered or threatened and to designate critical habitat under the 
Endangered Species Act of 1973, as amended (Act). After review of the 
best available scientific and commercial information, we find that 
listing the longfin smelt rangewide is not warranted at this time, but 
that listing the Bay-Delta DPS of longfin smelt is warranted. 
Currently, however, listing the Bay-Delta DPS of longfin smelt is 
precluded by higher priority actions to amend the Lists of Endangered 
and Threatened Wildlife and Plants. Upon publication of this 12-month 
finding, we will add the Bay-Delta DPS of longfin smelt to our 
candidate species list. We will develop a proposed rule to list the 
Bay-Delta DPS of longfin smelt as our priorities allow. We will make 
any determinations on critical habitat during the development of the 
proposed listing rule. During any interim period, we will address the 
status of the candidate taxon through our annual Candidate Notice of 
Review (CNOR).

DATES: The finding announced in this document was made on April 2, 
2012.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number [FWS-R8-ES-2008-0045]. 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, San Francisco Bay-Delta Fish and Wildlife 
Office, 650 Capitol Mall, Sacramento, CA 95814. Please submit any new 
information, materials, comments, or questions concerning this finding 
to the above street address.

FOR FURTHER INFORMATION CONTACT: Mike Chotkowski, Field Supervisor, San 
Francisco Bay-Delta Fish and Wildlife Office (see ADDRESSES); by 
telephone at 916-930-5603; or by facsimile at 916-930-5654 mailto:. If 
you use a telecommunications device for the deaf (TDD), please call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(B) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that, for any petition 
to revise the Federal Lists of Endangered and Threatened Wildlife and 
Plants that contains substantial scientific or commercial information 
that listing the species may be warranted, we make a finding within 12 
months of the date of receipt of the petition. In this finding, we will 
determine that the petitioned action is: (1) Not warranted, (2) 
warranted, or (3) warranted, but the immediate proposal of a regulation 
implementing the petitioned action is precluded by other pending 
proposals to determine whether species are endangered or threatened, 
and expeditious progress is being made to add or remove qualified 
species from the Federal Lists of Endangered and Threatened Wildlife 
and Plants. Section 4(b)(3)(C) of the Act requires that we treat a 
petition for which the requested action is found to be warranted but 
precluded as though resubmitted on the date of such finding, that is, 
requiring a subsequent finding to be made within 12 months. We must 
publish these 12-month findings in the Federal Register.

Previous Federal Actions

    On November 5, 1992, we received a petition from Mr. Gregory A. 
Thomas of the Natural Heritage Institute and eight co-petitioners to 
add the longfin smelt (Spirinchus thaleichthys) to the List of 
Endangered and Threatened Wildlife and designate critical habitat in 
the Sacramento and San Joaquin Rivers and estuary. On July 6, 1993, we 
published a 90-day finding (58 FR 36184) in the Federal Register that 
the petition contained substantial information indicating the requested 
action may be warranted, and that we would proceed with a status review 
of the longfin smelt. On January 6, 1994, we published a notice of a 
12-month finding (59 FR 869) on the petition to list the longfin smelt. 
We determined that the petitioned action was not warranted, based on 
the lack of population trend data for estuaries in Oregon and 
Washington, although the southernmost populations were found to be 
declining. Furthermore, we found the Sacramento-San Joaquin River 
estuary population of longfin smelt was not a distinct population 
segment (DPS) because we determined that the population was not 
biologically significant to the species as a whole, and did not appear 
to be sufficiently reproductively isolated.
    On August 8, 2007, we received a petition from the Bay Institute, 
the Center for Biological Diversity, and the Natural Resources Defense 
Council to list the San Francisco Bay-Delta (hereafter referred to as 
the Bay-Delta) population of the longfin smelt as a DPS and designate 
critical habitat for the DPS concurrent with the listing. On May 6, 
2008, we published a 90-day finding (73 FR 24911) in which we concluded 
that the petition provided substantial information indicating that 
listing the Bay-Delta population of the longfin smelt as a DPS may be 
warranted, and we initiated a status review. On April 9, 2009, we 
published a notice of a 12-month finding (74 FR 16169) on the August 8, 
2007, petition. We determined that the Bay-Delta population of the 
longfin smelt did not meet the discreteness element of our DPS policy 
and, therefore, was not a valid DPS. We therefore determined that the 
Bay-Delta population of the longfin smelt was not a listable entity 
under the Act.
    On November 13, 2009, the Center for Biological Diversity filed a 
complaint in U.S. District Court for the Northern District of 
California, challenging the Service on the merits of the 2009 
determination. On February 2, 2011, the Service entered into a 
settlement agreement with the Center for Biological Diversity and 
agreed to conduct a rangewide status review and prepare a 12-month 
finding to be published by September 30, 2011. In the event that the 
Service determined in the course of the status review that the longfin 
smelt does not warrant listing as endangered or threatened over its 
entire range, the Service agreed to consider whether any population of 
longfin smelt qualifies as a DPS. In considering whether any population 
of longfin smelt qualifies as a DPS, the Service agreed to reconsider 
whether the Bay-Delta population of the longfin smelt constitutes a 
DPS. At the request of the Service, Department of Justice requested an 
extension from the Court to allow for a more comprehensive review of 
new information pertaining to the longfin smelt and to seek the 
assistance of two expert panels to assist us with that review. The 
plaintiffs filed a motion of non-opposition, and on October 3, 2011, 
the court granted an extension to March

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23, 2012 for the publication of a new 12-month finding.

Species Information

Species Description and Taxonomy
    Longfin smelt measure 9-11 centimeters (cm) (3.5-4.3 inches (in)) 
standard length, although third-year females may grow up to 15 cm (5.9 
in). The sides and lining of the gut cavity appear translucent silver, 
the back has an olive to iridescent pinkish hue, and mature males are 
usually darker in color than females. Longfin smelt can be 
distinguished from other smelts by their long pectoral fins, weak or 
absent striations on their opercular (covering the gills) bones, 
incomplete lateral line, low numbers of scales in the lateral series 
(54 to 65), long maxillary bones (in adults, these bones extend past 
mid-eye, just short of the posterior margin of the eye), and lower jaw 
extending anterior of the upper jaw (Mcallister 1963, p. 10; Miller and 
Lea 1972, pp. 158-160; Moyle 2002, pp. 234-236).
    The longfin smelt belongs to the true smelt family Osmeridae and is 
one of three species in the Spirinchus genus; the night smelt 
(Spirinchus starksi) also occurs in California, and the shishamo 
(Spirinchus lanceolatus) occurs in northern Japan (McAllister 1963, pp. 
10, 15). Because of its distinctive physical characteristics, the Bay-
Delta population of longfin smelt was once described as a species 
separate from more northern populations (Moyle 2002, p. 235). 
McAllister (1963, p. 12) merged the two species S. thaleichthys and S. 
dilatus because the difference in morphological characters represented 
a gradual change along the north-south distribution rather than a 
discrete set. Stanley et al. (1995, p. 395) found that individuals from 
the Bay-Delta population and Lake Washington population differed 
significantly in allele (proteins used as genetic markers) frequencies 
at several loci (gene locations), although the authors also stated that 
the overall genetic dissimilarity was within the range of other 
conspecific fish species. They concluded that longfin smelt from Lake 
Washington and the Bay-Delta are conspecific (of the same species) 
despite the large geographic separation.
    Delta smelt and longfin smelt hybrids have been observed in the 
Bay-Delta estuary, although these offspring are not thought to be 
fertile because delta smelt and longfin smelt are not closely related 
taxonomically or genetically (California Department of Fish and Game 
(CDFG) 2001, p. 473).
Biology
    Nearly all information available on longfin smelt biology comes 
from either the Bay-Delta population or the Lake Washington population. 
Longfin smelt generally spawn in freshwater and then move downstream to 
brackish water to rear. The life cycle of most longfin smelt generally 
requires estuarine conditions (CDFG 2009, p. 1).

Bay-Delta Population

    Longfin smelt are considered pelagic and anadromous (Moyle 2002, p. 
236), although anadromy in longfin smelt is poorly understood, and 
certain populations are not anadromous and complete their entire life 
cycle in freshwater lakes and streams (see Lake Washington Population 
section below). Within the Bay-Delta, the term pelagic refers to 
organisms that occur in open water away from the bottom of the water 
column and away from the shore. Juvenile and adult longfin smelt have 
been found throughout the year in salinities ranging from pure 
freshwater to pure seawater, although once past the juvenile stage, 
they are typically collected in waters with salinities ranging from 14 
to 28 parts per thousand (ppt) (Baxter 1999, pp. 189-192). Longfin 
smelt are thought to be restricted by high water temperatures, 
generally greater than 22 degrees Celsius ([deg]C) (71 degrees 
Fahrenheit ([deg]F)) (Baxter et. al. 2010, p. 68), and will move down 
the estuary (seaward) and into deeper water during the summer months, 
when water temperatures in the Bay-Delta are higher. Within the Bay-
Delta, adult longfin smelt occupy water at temperatures from 16 to 20 
[deg]C (61 to 68 [deg]F), with spawning occurring in water with 
temperatures from 5.6 to 14.5 [deg]C (41 to 58 [deg]F) (Wang 1986, pp. 
6-9).
    Longfin smelt usually live for 2 years, spawn, and then die, 
although some individuals may spawn as 1- or 3-year-old fish before 
dying (Moyle 2002, p. 36). In the Bay-Delta, longfin smelt are believed 
to spawn primarily in freshwater in the lower reaches of the Sacramento 
River and San Joaquin River. Longfin smelt congregate in deep waters in 
the vicinity of the low salinity zone (LSZ) near X2 (see definition 
below) during the spawning period, and it is thought that they make 
short runs upstream, possibly at night, to spawn from these locations 
(CDFG 2009, p. 12; Rosenfield 2010, p. 8). The LSZ is the area where 
salinities range from 0.5 to 6 practical salinity units (psu) within 
the Bay-Delta (Kimmerer 1998, p. 1). Salinity in psu is determined by 
electrical conductivity of a solution, whereas salinity in parts per 
thousand (ppt) is determined as the weight of salts in a solution. For 
use in this document, the two measurements are essentially equivalent. 
X2 is defined as the distance in kilometers up the axis of the estuary 
(to the east) from the Golden Gate Bridge to the location where the 
daily average near-bottom salinity is 2 psu (Jassby et al. 1995, p. 
274; Dege and Brown 2004, p. 51).
    Longfin smelt in the Bay-Delta may spawn as early as November and 
as late as June, although spawning typically occurs from January to 
April (CDFG 2009, p. 10; Moyle 2002, p. 36). Longfin smelt have been 
observed in their winter and spring spawning period as far upstream as 
Isleton in the Sacramento River, Santa Clara shoal in the San Joaquin 
system, Hog Slough off the South-Fork Mokelumne River, and in Old River 
south of Indian Slough (CDFG 2009a, p. 7; Radtke 1966, pp. 115-119).
    Exact spawning locations in the Delta are unknown and may vary from 
year to year in location, depending on environmental conditions. 
However, it seems likely that spawning locations consist of the overlap 
of appropriate conditions of flow, temperature, and salinity with 
appropriate substrate (Rosenfield 2010, p. 8). Longfin smelt are known 
to spawn over sandy substrates in Lake Washington and likely prefer 
similar substrates for spawning in the Delta (Baxter et. al. 2010, p. 
62; Sibley and Brocksmith 1995, pp. 32-74). Baxter found that female 
longfin smelt produced between 1,900 and 18,000 eggs, with fecundity 
greater in fish with greater lengths (CDFG 2009, p. 11). At 7 [deg]C 
(44.6 [deg]F), embryos hatch in 40 days (Dryfoos 1965, p. 42); however, 
incubation time decreases with increased water temperature. At 8-9.5 
[deg]C (46.4-49.1 [deg]F), embryos hatch at 29 days (Sibley and 
Brocksmith 1995, pp. 32-74).
    Larval longfin smelt less than 12 millimeters (mm) (0.5 in) in 
length are buoyant because they have not yet developed an air bladder; 
as a result, they occupy the upper one-third of the water column. After 
hatching, they quickly make their way to the LSZ via river currents 
(CDFG 2009, p. 8; Baxter 2011a, pers comm.). Longfin smelt develop an 
air bladder at approximately 12-15 mm (0.5-0.6 in.) in length and are 
able to migrate vertically in the water column. At this time, they 
shift habitat and begin living in the bottom two-thirds of the water 
column (CDFG 2009, p. 8; Baxter 2008, p. 1).
    Longfin smelt larvae can tolerate salinities of 2-6 psu within days 
of hatching, and can tolerate salinities up to 8 psu within weeks of 
hatching

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(Baxter 2011a, pers. comm.). However, very few larvae (individuals less 
than 20 mm in length) are found in salinities greater than 8 psu, and 
it takes almost 3 months for longfin smelt to reach juvenile stage. A 
fraction of juvenile longfin smelt individuals are believed to tolerate 
full marine salinities (greater than 8 psu) (Baxter 2011a, pers. 
comm.).
    Longfin smelt are dispersed broadly in the Bay-Delta by high flows 
and currents, which facilitate transport of larvae and juveniles long 
distances. Longfin smelt larvae are dispersed farther downstream during 
high freshwater flows (Dege and Brown 2004, p. 59). They spend 
approximately 21 months of their 24-month life cycle in brackish or 
marine waters (Baxter 1999, pp. 2-14; Dege and Brown 2004, pp. 58-60).
    In the Bay-Delta, most longfin smelt spend their first year in 
Suisun Bay and Marsh, although surveys conducted by the City of San 
Francisco collected some first-year longfin in coastal waters (Baxter 
2011c, pers. comm.; City of San Francisco 1995, no pagination). The 
remainder of their life is spent in the San Francisco Bay or the Gulf 
of Farallones (Moyle 2008, p. 366; City of San Francisco 1995, no 
pagination). Rosenfield and Baxter (2007, pp. 1587, 1590) inferred 
based on monthly survey results that the majority of longfin smelt from 
the Bay-Delta were migrating out of the estuary after the first winter 
of their life cycle and returning during late fall to winter of their 
second year. They noted that migration out of the estuary into nearby 
coastal waters is consistent with captures of longfin smelt in the 
coastal waters of the Gulf of Farallones. It is possible that some 
longfin smelt may stay in the ocean and not re-enter freshwater to 
spawn until the end of their third year of life (Baxter 2011d, pers. 
comm.). Moyle (2010, p. 8) states that longfin smelt that migrate out 
of and back into the Bay-Delta estuary may primarily be feeding on the 
rich planktonic food supply in the Gulf of Farallones. Rosenfield and 
Baxter (2007, p. 1290) hypothesize that the movement of longfin smelt 
into the ocean or deeper water habitat in summer months is at least 
partly a behavioral response to warm water temperatures found during 
summer and early fall in the shallows of south San Francisco Bay and 
San Pablo Bay (Rosenfield and Baxter 2007, p. 1590).
    In the Bay-Delta, calanoid copepods such as Pseudodiatomus forbesi 
and Eurytemora sp., as well as the cyclopoid copepod Acanthocyclops 
vernali (no common names), are the primary prey of longfin smelt during 
the first few months of their lives (approximately January through May) 
(Slater 2009b, slide 45). Copepods are a type of zooplankton (organisms 
drifting in the water column of oceans, seas, and bodies of fresh 
water). The longfin smelt's diet shifts to include mysids such as 
opossum shrimp (Neomysis mercedis) and other small crustaceans 
(Acanthomysis sp.) as soon as they are large enough (20-30 mm (0.78-
1.18 in)) to consume these larger prey items, sometime during the 
summer months of the first year of their lives (CDFG 2009, p. 12). 
Upstream of San Pablo Bay, mysids and amphipods form 80-95 percent or 
more of the juvenile longfin smelt diet by weight from July through 
September (Slater 2009, unpublished data). Longfin smelt occurrence is 
likely associated with the occurrence of their prey, and both of these 
invertebrate groups occur near the bottom of the water column during 
the day under clear water marine conditions.

Lake Washington Population

    The Lake Washington population near Seattle, Washington is 
considered a landlocked population of longfin smelt, as are the 
populations of longfin smelt in Harrison and Pitt Lakes in British 
Columbia east of Vancouver (Chigbu and Sibley 1994, p. 1). These 
populations are not anadromous and complete their entire life cycle in 
freshwater. Young longfin smelt feed primarily on the copepods 
Diaptomus, Diaphanosoma, and Epischura, with older fish switching over 
to mysids (Wydoski and Whitney 2003, p. 105). Chigbu and Sibley (1994, 
pp. 11-14) found that mysids dominate the diets of longfin smelt in 
their second year of life (age-1), while amphipods, copepods, and 
daphnia also contributed substantially to the longfin smelt's diet. A 
strong spawning run of longfin smelt occurs on even years in Lake 
Washington, with weak runs on odd years. They spawn at night in the 
lower reaches of at least five streams that flow into Lake Washington. 
Water temperatures during spawning were 4.4 [deg]C (40 [deg]F) to 7.2 
[deg]C (45 [deg]F) (Wydoski and Whitney 2003, p. 105). Chigbu and 
Sibley (1994, p. 9) found that female longfin smelt produced between 
6,000 and 24,000 eggs, while Wydoski and Whitney (2003, p. 105) found 
that longfin smelt produced between 1,455 and 1,655 eggs. The reason 
for the large difference between the observations of these two studies 
is not known.
Habitat
    Longfin smelt have been collected in estuaries from the Bay-Delta 
(33[deg] N latitude) to Prince William Sound (62[deg] N latitude), a 
distance of approximately 1,745 nautical miles (Figure 1). Mean annual 
water temperatures range from 2.4 [deg]C (36.3 [deg]F) in Anchorage to 
14.1 [deg]C (57.3 [deg]F) in San Francisco (NOAA 2011a). The different 
estuary types that the longfin smelt is found in and the range of 
variability of environments where the species has been observed will be 
discussed below.
BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TP02AP12.000

    The origin and geomorphology of West Coast estuaries result from 
geologic forces driven by plate tectonics and have been modified by 
glaciations and sea level rise (Emmett et al. 2000, pp. 766-767). Major 
classifications of estuaries include fjord, drowned-river valley, 
lagoon, and bar-built. Fjords typically are long, narrow, steep-sided 
valleys created by glaciation, with moderately high freshwater inflow 
but little mixing with seawater due to the formation of a sill at the 
mouth (NOAA 2011b). Fjords generally have one large tributary river and 
numerous small streams (Emmett et al. 2000, p. 768). Drowned-river 
valleys, also termed coastal plain estuaries, are found primarily in 
British Columbia, Washington, and Oregon, and are the dominant type 
along the west coast, occurring as a result of rising sea levels 
following the last ice age. Lagoons, primarily found in California, 
occur where coastal river systems that are closed to the sea by sand 
spits for much of the year are breached during the winter (Emmett et 
al. 2000, p. 768). The rarest type of estuary is the bar-built, which 
is formed by a bar and semi-enclosed body of water (Emmett et al. 2000, 
p. 768). Estuaries have also been classified by physical or 
environmental

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variables into Northern Riverine, Southern California, Northern 
Estuarine, Central Marine, Fjord, and Coastal Northwest Groups (Monaco 
et al. 1992, p. 253). Longfin smelt have been collected from estuaries 
of all types and classifications.
    The Bay-Delta is the largest estuary on the West Coast of the 
United States (Sommer et al. 2007, p. 271). The modern Bay-Delta bears 
only a superficial resemblance to the historical Bay-Delta. The Bay-
Delta supports an estuary covering approximately 1,235 square 
kilometers (km\2\) (477 square miles (mi\2\)) (Rosenfield and Baxter 
2007, p. 1577), which receives almost half of California's runoff 
(Lehman 2004, p. 313). The historical island marshes surrounded by low 
natural levees are now intensively farmed and protected by large, 
manmade structures (Moyle 2002, p. 32). The watershed, which drains 
approximately 40 percent of the land area of California, has been 
heavily altered by dams and diversions, and nonnative species now 
dominate, both in terms of numbers of species and numbers of 
individuals (Kimmerer 2004, pp. 7-9). The Bay Institute has estimated 
that intertidal wetlands in the Delta have been diked and leveed so 
extensively that approximately 95 percent of the 141,640 hectares (ha) 
(350,000 acres (ac)) of tidal wetlands that existed in 1850 are gone 
(The Bay Institute 1998, p. 17).
    The physical and biological characteristics of the estuary define 
longfin smelt habitat. The Bay-Delta is unique in that it contains 
significant amounts of tidal freshwater (34 km\2\ (13 mi\2\)) and 
mixing zone (194 km\2\ (75 mi\2\)) habitat (Monaco et al. 1992, pp. 
254-255, 258). San Francisco Bay is relatively shallow and consists of 
a northern bay that receives freshwater inflow from the Sacramento-San 
Joaquin system and a southern bay that receives little freshwater input 
(Largier 1996, p. 69). Dominant fish species are highly salt-tolerant 
and include the commercially important Pacific sardine (Sardinops 
sagax) and rockfish (Sebastes spp.). Major habitat types include 
riverine and tidal wetlands, mud flat, and salt marsh, with substantial 
areas of diked wetland managed for hunting. The sandy substrates that 
longfin smelt are presumed to use for spawning are abundant in the 
Delta.
    The Russian River collects water from a drainage area of 
approximately 3,846 km\2\ (1,485 mi\2\), has an average annual 
discharge of 1.6 million acre-feet, and is approximately 129 km (80 mi) 
in length (Langridge et al. 2006, p. 4). Little information is 
available on potential spawning and rearing habitat for longfin smelt, 
but it is likely to be both small and ephemeral because spawning and 
rearing habitat is highly dependent upon freshwater inflow, and there 
may be insufficient freshwater flows for spawning and rearing in some 
years (Moyle 2010, p. 5). A berm encloses the mouth of the Russian 
River during certain times of the year, essentially cutting it off from 
the coastal ocean. This results in a lack of connectivity with the 
ocean that could be important during dry years. However, in most years 
the berm is breached by freshwater flows, which allows longfin smelt to 
enter the Russian River and spawn.
    The Eel River drains an area of 3,684 mi\2\ (9,542 km\2\) and is 
the third largest river in California. Wetlands and tidal areas have 
been reduced 60 to 90 percent since the 1800s (Cannata and Hassler 
1995, p. 1), resulting in changes in tidal influence and a reduction in 
channel connectivity (Downie 2010, p. 15). The estuary is characterized 
by a small area where freshwater and saltwater mix (Monaco et al. 1992, 
p. 258) and thus provides only limited potential longfin rearing 
habitat.
    Humboldt Bay is located only 26 km (16 mi) north of the Eel River 
and is approximately 260 mi (418 km) north of the Bay-Delta. Humboldt 
Bay is the second largest coastal estuary in California after the Bay-
Delta. However, true estuarine conditions rarely occur in Humboldt Bay 
because it receives limited freshwater input and experiences little 
mixing of freshwater and saltwater (Pequegnat and Butler 1982, p. 39).
    The Klamath Basin has been extensively modified by levees, dikes, 
dams, and the draining of natural water bodies since the U.S. Bureau of 
Reclamation's Klamath Project, designed to improve the region's ability 
to support agriculture, began in 1905. These changes to the system have 
altered the biota of the basin (NRC 2008, p. 16). Over the years, loss 
of thousands of acres of connected wetlands and open water in the 
Klamath River Basin has greatly reduced habitat value, likely depleting 
the ability of this area to cycle nutrients and affecting water quality 
(USFWS 2008, p. 55). The river drains a vast area of 10 million ac (4 
million ha). Although a large river, the Klamath River estuary is 
characterized by small tidal freshwater and mixing zones (Monaco et al. 
1992, p. 258) and thus provides limited potential longfin smelt rearing 
habitat.
    Yaquina Bay is located on the mid-coastal region of Oregon, 201 km 
(125 mi) south of the Columbia River and 348 km (216 mi) north of the 
California border. Wetlands encompass 548 ha (1,353 ac), including 216 
ha (534 ac) of mud flats and 331 ha (819 ac) of tidal marshes (Yaquina 
Bay Geographic Response Plan 2005, p. 2.1). Forty-eight percent of the 
estuary is intertidal (Brown et al. 2007, p. 6). The estuary has been 
modified greatly, being alternately dredged and filled at different 
locations as a result of development. Dredging, industrial, and 
residential uses have reduced fish habitat and water quality in the 
bay. Dredging disturbs sediment, resulting in increased turbidity and 
reduced sunlight penetration, which can impact native eelgrasses and 
the benthic species dependent eelgrass beds for breeding, spawning, and 
shelter (Oberrecht 2011, pp. 1-8).
    On the Columbia River, dams, dikes, maintenance dredging, and 
urbanization have all contributed to habitat loss and alterations that 
have negatively affected fish and wildlife populations (Lower Columbia 
River Estuary Partnership 2011, p. 1). It is estimated that as much as 
43 percent of estuarine tidal marshes and 77 percent of tidal swamps in 
the river estuary available for fish species have been lost since 1870 
(Columbia River Estuary Study Taskforce 2006, pp. 1-30). Sixty square 
miles of peripheral tidal habitat have been lost to diking, filling, 
and conversion to upland habitat for industrial and agricultural use 
since 1870 (Columbia River Estuary Study Taskforce 2006, p. 1). Prior 
to construction of dams, estuary islands and much of the floodplain 
were inundated throughout the year, beginning in December and again in 
May or June. Dam operations on the Columbia River's main stem and major 
tributaries have substantially reduced peak river flows. Dikes and 
levees have all but eliminated flooding in many low-lying areas. 
Dredging of shipping channels has caused loss of wetlands and altered 
shoreline configuration. Dredging has resulted in large sediment 
reductions upstream, and the dredged sediments have created islands 
downstream. This has likely reduced spawning habitat and sheltering 
sites for fish (OWJP 1991, pp. 1-24; Lower Columbia Fish Recovery Board 
2004a, pp. 1-192).
    Puget Sound is a large saltwater estuary of interconnected flooded 
glacial valleys located at the northwest corner of the State of 
Washington. Puget Sound is about 161 km (100 mi) long, covers about 
264,179 ha (652,800 ac), and has over 2,092 km (1,300 mi) of shoreline. 
Fed by streams and rivers from the Olympic and Cascade Mountains, 
waters flow out to the

[[Page 19761]]

Pacific Ocean through the Strait of Juan de Fuca (Lincoln 2000, p. 1). 
The basin consists of eight major habitat types, the largest of which 
is kelp and eelgrass, but also includes wetlands, mudflats, and 
sandflats. Puget Sound consists of five regions, each with its own 
physical and biological characteristics. Urban and industrial 
development borders the main basin, which is bounded by Port Townsend 
on the north and the Narrows (Tacoma) on the south. Approximately 30 
percent of freshwater inflow to the main basin is from the Skagit 
River, which drains an area of approximately 8,011 km\2\ (3,093 mi\2\). 
Sills at Admiralty Inlet and the Narrows influence circulation. Puget 
Sound is highly productive. The fish community includes many 
commercially important species, such as Pacific herring, Pacific 
salmon, and several species of rockfish (NOAA 2011c, p. 11). There are 
10 major dams and thousands of small water diversions in the Puget 
Sound system (Puget Sound Partnership 2008b, p. 21). Human activities 
in the region have resulted in the loss of 75 percent of the saltwater 
marsh habitat and 90 percent of the estuarine and riverine wetlands 
(Puget Sound Partnership 2008b, p. 21).
    The coastline of British Columbia has been shaped by plate 
tectonics and extensive glaciations. Particularly in summer, prevailing 
winds drive coastal upwelling, which results in a highly productive 
food chain. The tidal amplitude is 3-5 meters (m) (9.8-16.4 ft) in most 
areas, and numerous large and small rivers provide freshwater inflow. 
Biological communities are diverse and highly variable, including 
coastal wetlands, kelp beds, and seaweed beds that support a diverse 
marine fauna (Dale 1997, pp. 13-15). Nearshore areas of British 
Columbia are characterized by steep to moderately sloping fjords, 20-50 
m (65-164 ft) in depth, with salinities ranging from 18 to 28 ppt (AXYS 
Environmental Consulting 2001, pp. 5, 11, 20). Bar-built estuaries that 
are semi-enclosed by an ocean-built bar occur on the west coast of 
Vancouver Island and the Queen Charlotte Islands (Emmett et al. 2000, 
pp. 769-770). Oxygen depletion is common in fjords (Emmett et al. 2000, 
p. 776), but because they are anadromous, longfin smelt would 
presumably be able to avoid those conditions. However, if depletion 
were to occur during spawning or rearing, recruitment could be 
affected.
    The Fraser River, at approximately 1,375 miles (2,213 km), is the 
longest river in British Columbia and the tenth longest river in 
Canada. The Fraser River drains an area of 220,000 km\2\ and flows to 
the Strait of Georgia at the City of Vancouver before it drains into 
the Pacific Ocean. Diking and drainage in the lower basin area have 
reduced the extent of estuarine wetlands that are important to the 
longfin smelt and other fishes that utilize these areas (Blomquist 
2005, p. 8).
    Habitat types common in Alaskan estuaries include eel grass beds, 
understory kelp, sand and gravel beds, and bedrock outcrops (NOAA 
2011d). Shallow nearshore areas provide a mosaic of habitat types that 
support a variety of fishes (NOAA 2005, p. 59). In southwestern Alaska, 
the related osmerid species capelin (Mallotus villosus) was found to 
occur in sand-and-gravel habitats, and the surf smelt (Hypomesus 
pretiosus) was found to occur in bedrock habitats (NOAA 2005, pp. 27, 
29). As in British Columbia, if oxygen depletion occurs in fjord 
habitats during spawning or rearing, longfin smelt recruitment could be 
affected.
    Cook Inlet is a large mainland Alaskan estuary located in the 
northern Gulf of Alaska. Cook Inlet is approximately 290 km (180 miles) 
long. The watershed covers about 100,000 km\2\ of southern Alaska 
(USACE 2011, p. 1).
Distribution
    Longfin smelt are widely distributed along 3,541 km (2,200 mi) of 
Pacific coastline from the Bay-Delta to Cook Inlet, Alaska (Table 1). 
We found no evidence of range contraction; the current distribution of 
longfin smelt appears to be similar to its historical distribution.

               Table 1--Known Occurrences of Longfin Smelt
------------------------------------------------------------------------
            State                   Location              Reference
------------------------------------------------------------------------
California..................  Monterey Bay........  Eschmeyer 1983, p.
                                                     82; Wang 1986, pp.
                                                     6-10).
                              Bay-Delta...........  Eschmeyer 1983, p.
                                                     82; Wang 1986, pp.
                                                     6-10.
                              Offshore Bay-Delta..  City of San
                                                     Francisco 1993, p.
                                                     5-8.
                              Russian River         Cook 2010, pers.
                               Estuary.              comm.
                              Van Duzen River.....  Moyle 2002, p. 235.
                              McNulty Slough of     CDFG 2010,
                               Eel River.            unpublished data.
                              Offshore Humboldt     Quirollo 1994, pers.
                               Bay.                  comm.
                              Humboldt Bay and      CDFG 2010,
                               tributaries.          unpublished data.
                              Mad River...........  Moyle 2002, p. 235.
                              Klamath River.......  Kisanuki et al.
                                                     1991, p. 72, CDFG
                                                     2009, p. 5.
                              Lake Earl...........  D. McLeod field note
                                                     1989
                                                    (Cannata and Downie
                                                     2009).
Oregon......................  Coos Bay............  Veroujean 1994, p.
                                                     1.
                              Yaquina Bay.........  ODFW 2011, pp. 1-3,
                                                     ANHP 2006, p. 3.
                              Tillamook Bay.......  Ellis 2002, p. 17.
                              Columbia River        ODFW 2011, pp. 1-3.
                               Estuary.
Washington..................  Willapa Bay.........  WDFW 2011, pp. 1-3.
                              Grays Harbor........  U.S. Army Corps of
                                                     Engineers 2000, p.
                                                     2.
                              Puget Sound Basin...  Miller and Borton
                                                     1980, p. 17.4.
                              Lake Washington.....  Chigbu and Sibley
                                                     1994, p. 1.
British Columbia............  Fraser River........  Fishbase 2011a, p.
                                                     1; Fishbase 2011b,
                                                     p. 1.
                              Pitt Lake...........  Taylor 2011, pers.
                                                     comm.
                              Harrison Lake.......  Page and Burr 1991,
                                                     p. 57.
                              Vancouver...........  Hart 1973, p. 147.
                              Prince Rupert.......  Hart 1973, p. 147.
                              Skeena Estuary......  Kelson 2011, pers.
                                                     comm.
Alaska......................  Dixon Entrance......  Alaska Natural
                                                     Heritage Program
                                                     2006, p. 3.
                              Sitka National        NPS 2011, p. 1.
                               Historical Park.
                              Glacier Bay.........  Arimitsu 2003, pp.
                                                     35, 41.
                              Klondike Gold Rush    NPS 2011, p. 1.
                               National Historical
                               Park.

[[Page 19762]]

 
                              Yakutat Bay.........  Alaska Natural
                                                     Heritage Program
                                                     2006, p. 3.
                              Wrangell-St. Elias    Arimitsu 2003, pp.
                               National Park.        35, 41, NPS 2011,
                                                     p. 1.
                              Cook Inlet..........  NOAA 2010b, p. 4,
                                                     NOAA 2010a, p. 8.
                              Kachemak Bay........  Abookire et al.
                                                     2000, NPS 2011, p.
                                                     1.
                              Hinchinbrook Island.  Alaska Natural
                                                     Heritage Program
                                                     2006, p. 3.
                              Lake Clark National   NPS 2011, p. 1.
                               Park and Preserve.
                              Prince William Sound  Alaska Natural
                                                     Heritage Program
                                                     2006, p. 3.
------------------------------------------------------------------------

California

    The southernmost known population of longfin smelt is the Bay-Delta 
estuary, and longfin smelt occupy different habitats of the estuary at 
various stages in their life cycle (See Habitat section above). 
Eschmeyer (1983, p. 82) reported the southern extent of the range as 
Monterey Bay, and Wang (1986, pp. 6-10) reported that an individual 
longfin smelt had been captured at Moss Landing in Monterey Bay in 
1980. Most sources, however, identify the Bay-Delta as the southern 
extent of the species' range (Moyle 2002, p. 235).
    Small numbers of longfin were collected within the Russian River 
estuary each year between 1997 and 2000 (SCWA 2001, p. 18). No surveys 
were conducted in 2001 or 2002 (Cook 2011, pers. comm.). Recent surveys 
(since 2003) in the Russian River estuary conducted by Sonoma County 
Water Agency have not collected longfin smelt; however, in 2003, 
trawling surveys were replaced by beach seining, a type of survey less 
likely to capture a pelagic fish species such as the longfin smelt. 
Longfin smelt breeding has not been documented at the Russian River 
(Baxter 2011b, pers. comm.), and because of its limited size, the 
Russian River estuary is not believed to be capable of supporting a 
self-sustaining longfin smelt population (The Bay Institute et al. 
2007, p. ii; Moyle 2010, p. 5).
    Longfin smelt were observed spawning in the Eel River estuary in 
1974 (Puckett 1977, p. 19). Although longfin were observed in the Eel 
River in 2008 and 2009 (Cannata and Downie 2009), it is unknown whether 
or not they currently spawn there. Humboldt Bay is located 420 km (260 
mi) north of the Bay-Delta. Longfin smelt were collected in Humboldt 
Bay or its tributaries every year from 2003 to 2009, with the exception 
of 2004 (CDFG 2010, unpublished data). Longfin smelt also have been 
observed in coastal waters adjacent to Humboldt Bay (Quirollo 1994, 
pers. comm.). The Humboldt Bay population is thought to be the nearest 
known breeding population to the Bay-Delta (Baxter 2011b, pers. comm.). 
Longfin smelt were collected consistently in the Klamath River estuary 
between 1979 and 1989 (Kisanuki et al. 1991, p. 72), and one longfin 
smelt was collected in the Klamath River in 2001 (CDFG 2009, p. 5).

Oregon

    In Oregon, there are historical records of longfin smelt in 
Tillamook Bay, Columbia River, Coos Bay, and Yaquina Bay (ANHP 2006, p. 
3). One individual was detected in Tillamook Bay in 2000 (Ellis 2002, 
p. 17). Williams et al. (2004, p. 30) collected 308 longfin in the 
Columbia River estuary in 2004. Longfin smelt were reported in the 
Columbia River estuary, the coastal waters adjacent to the Columbia 
River, and in Yaquina Bay in 2009 (Nesbit 2011, pers. comm.). In Coos 
Bay, longfin smelt were detected in low numbers in the early 1980s. 
However, longfin smelt do not appear to be common in Coos Bay and were 
not detected during sampling that occurred in the 1970s and the late 
1980s (Veroujean 1994, no pagination).

Washington

    In Washington, within the Puget Sound Basin, longfin smelt are 
known to occur in the Nooksack River, Bellingham Bay, Snohomish River, 
Duwamish River, Skagit Bay, Strait of San Juan de Fuca, Twin River, and 
Pysht River (Table 1). Longfin smelt are known to occur in nearby 
Bellingham Bay (Penttila 2007, p. 4). Longfin smelt were collected in 
the Snohomish River estuary during extensive beach seine and fyke 
trapping in 2009 (Rice 2010, pers. comm.). Longfin smelt were captured 
(reported as non-target) in high-rise otter trawls in the lower 
Duwamish River (Anchor and King County 2007, p. 11). Longfin smelt are 
common in the Strait of San Juan de Fuca (Penttila 2007, p. 4). Miller 
et al. (1980, p. 28) found longfin smelt to be the second most common 
species in tow-net surveys conducted in the Strait of San Juan de Fuca. 
Most fish caught in these surveys were young of the year and were found 
near the Twin and Pysht Rivers, both of which may have suitable 
spawning grounds (Miller et al. 1980, p. 28). Occurrences of longfin 
smelt within northern Puget Sound and the Strait of Georgia may reflect 
the abundance and distribution of the anadromous populations from the 
Fraser River in British Columbia (Washington Department of Fish and 
Wildlife 2011, pp. 1-3). Currently, the National Park Service states 
that longfin smelt are probably present within Olympic National Park 
(NPS 2011, p. 1). Longfin smelt appear to be common in Grays Harbor 
(U.S. Army Corps of Engineers 2000, p. 2). Longfin smelt have been 
infrequently documented in the upper Chehalis estuary at Cosmopolis; 
however, when they do occur, they have been reported as abundant 
(Anderson 2011). Ocean trawls off Willapa Bay have collected longfin 
smelt, although no spawning population has been identified in the basin 
(Anderson 2011).
    A resident, freshwater population of longfin smelt occurs in Lake 
Washington (Chigbu and Sibley 1994, p. 1). First caught in 1959, it is 
believed that the longfin smelt either were introduced to the lake or 
became trapped during canal construction (Chigbu et al. 1998, p. 180). 
In the 1960s, the abundance of longfin smelt in Lake Washington was low 
but increased to higher levels in the 1980s (Chigbu and Sibley 1994, p. 
4).

British Columbia

    Longfin smelt populations occur in Pitt Lake and Harrison Lake in 
British Columbia (Page and Burr 1991, p. 57; Taylor 2011, pers. comm.); 
these populations are believed to be resident fish that are not 
anadromous (that is, they are thought to complete their entire life 
cycle in freshwater). Pitt Lake is located approximately 64 river km 
(40 mi) up the Fraser and Pitt Rivers, and Harrison Lake is located 
approximately 121 river km (75 mi) up the Fraser and Harrison Rivers. 
Longfin smelt are known to occur within the Fraser River near Vancouver 
(Hart 1973, p. 147; Fishbase 2011a, p. 1; Fishbase 2011b, p. 1). 
Longfin smelt are also known to occur in the Skeena River estuary near

[[Page 19763]]

Prince Rupert (Hart 1973, p. 147; Kelson 2011, pers. comm.; Gottesfeld 
2002, p. 54).
Alaska
    In Alaska, longfin smelt are known from Hinchinbrook Island, Prince 
William Sound, Dixon Entrance, Yakutat Bay, and Cook Inlet (Alaska 
Natural Heritage Program 2006, p. 3). In nearly 1,000 recent beach 
seine surveys in Alaska, longfin smelt have only been caught off Fire 
Island in upper Cook Inlet in 2009 and 2010 (NOAA 2010b, p. 4; Johnson 
2010, pers. comm.; Wing 2010, pers. comm.). However, as stated earlier, 
longfin smelt are unlikely to be caught in beach seine surveys because 
they are a pelagic species and do not typically occur near shore where 
beach seine surveys take place. Surveys in Prince William Sound did not 
collect longfin smelt in 2006 or 2007 (NOAA 2011, p. 1). Longfin smelt 
were collected in Wrangell-St. Elias National Park and Glacier Bay in 
2001 and 2002 (Arimitsu 2003, pp. 35, 41). Longfin were collected in 
Kachemak Bay in 1996-1998 seine and trawling surveys (Abookire et al. 
2000). The NPS was not able to confirm presence or absence in Lake 
Clark National Park and Preserve. The NPS concludes that presence is 
probable in Glacier Bay National Park and Preserve, Klondike Gold Rush 
National Historical Park, Sitka National Historical Park, and Wrangell-
St. Elias National Park and Preserve (NPS 2011, p. 1).
Abundance
    In most locations throughout their range, longfin smelt populations 
have not been monitored. Within the Bay-Delta, longfin smelt are 
consistently collected in the monitoring surveys that have been 
conducted by CDFG as far back as the late 1960s. We know of no similar 
monitoring data for other longfin smelt populations. CDFG did report 
catches of longfin smelt in Humboldt Bay from surveys conducted between 
2003 and 2009; small numbers of longfin were collected each of the 
years except 2004 (CDFG 2010, unpublished data). Moyle (2002, p. 237; 
2010, p. 4) noted that the longfin smelt population in Humboldt Bay 
appeared to have declined between the 1970s and 2002, but survey data 
are not available from that time.
    Longfin smelt numbers in the Bay-Delta have declined significantly 
since the 1980s (Moyle 2002, p. 237; Rosenfield and Baxter 2007, p. 
1590; Baxter et. al. 2010, pp. 61-64). Rosenfield and Baxter (2007, pp. 
1577-1592) examined abundance trends in longfin smelt using three long-
term data sets (1980-2004) and detected a significant decline in the 
Bay-Delta longfin smelt population. They confirmed the positive 
correlation between longfin smelt abundance and freshwater flow that 
had been previously documented by others (Stevens and Miller 1983, p. 
432; Baxter et al. 1999, p. 185; Kimmerer 2002b, p. 47), noting that 
abundances of both adults and juveniles were significantly lower during 
the 1987-1994 drought than during either the pre- or post-drought 
periods (Rosenfield and Baxter 2007, pp. 1583-1584).
    Despite the correlation between drought and low population in the 
1980s and 90s, the declines in the first decade of this century appear 
to be caused in part by additional factors. Abundance of longfin smelt 
has remained very low since 2000, even though freshwater flows 
increased during several of these years (Baxter et al. 2010, p. 62). 
Abundance indices derived from the Fall Midwater Trawl (FMWT), Bay 
Study Midwater Trawl (BSMT), and Bay Study Otter Trawl (BSOT) all show 
marked declines in Bay-Delta longfin smelt populations from 2002 to 
2009 (Messineo et al. 2010, p. 57). Longfin smelt abundance over the 
last decade is the lowest recorded in the 40-year history of CDFG's 
FMWT monitoring surveys. Scientists became concerned over the 
simultaneous population declines since the early 2000s of longfin smelt 
and three other Bay-Delta pelagic fish species--delta smelt (Hypomesus 
transpacificus), striped bass (Morone saxatilis), and threadfin shad 
(Dorosoma petenense) (Sommer et al. 2007, p. 273). The declines of 
longfin smelt and these other pelagic fish species in the Bay-Delta 
since the early 2000s has come to be known as the Pelagic Organism 
Decline, and considerable research efforts have been initiated since 
2005, to better understand causal mechanisms underlying the declines 
(Sommer et al. 2007, pp. 270-277; MacNally et al. 2010, pp. 1417-1430; 
Thomson et al. 2010, pp. 1431-1448). The population did increase in the 
2011 FMWT index to 477 (Contreras 2011, p. 2), probably a response to 
an exceptionally wet year.
    The FMWT index of abundance in the Bay-Delta shows great annual 
variation in abundance but a severe decline over the past 40 years 
(Figure 2). The establishment of the overbite clam (Corbula amurensis) 
in the Bay-Delta in 1987 is believed to have contributed to the 
population decline of longfin smelt (See Factor E: Introduced Species, 
below), as well as to the declining abundance of other pelagic fish 
species in the Bay-Delta (Sommer et al. 2007, p. 274). Figure 2 shows 
low values of the abundance index for longfin smelt during drought 
years (1976-1977 and 1986-1992) and low values overall since the time 
that the overbite clam became established in the estuary.

[[Page 19764]]

[GRAPHIC] [TIFF OMITTED] TP02AP12.001

    Using data from 1975-2004 from the FMWT survey, Rosenfield and 
Baxter 2007 (p. 1589) found that longfin smelt exhibit a significant 
stock-recruitment relationship--abundance of juvenile (age-0) fish is 
directly related to the abundance of adult (age-1) fish from the 
previous year. They found that the abundance of juvenile fish declined 
by 90 percent during the time period analyzed. Rosenfield and Baxter 
(2007, p. 1589) also found a decline in age-1 individuals that was 
significant even after accounting for the decline in the age-0 
population. If unfavorable environmental conditions persist for one or 
more years, recruitment into the population could be suppressed, 
affecting the species' ability to recover to their previous abundance. 
The current low abundance of adult longfin smelt within the Bay-Delta 
could reduce the ability of the species to persist in the presence of 
various threats.
Conservation Actions

Bay-Delta

    The CALFED program existed as a multi-purpose (water supply, flood 
protection, and conservation) program with significant ecosystem 
restoration and enhancement elements. Implemented by the California 
Bay-Delta Authority, the program brought together more than 20 State 
and Federal agencies to develop a long-term comprehensive plan to 
restore ecological health and improve water management for all 
beneficial uses in the Bay-Delta system. The program specifically 
addressed ecosystem quality, water quality, water supply, and levee 
system integrity. The California Bay-Delta Authority was replaced in 
2009 by the Delta Stewardship Council, but many of its programs 
continue to be implemented and are now housed within the CALFED 
program's former member agencies.
    The CALFED Ecosystem Restoration Program (ERP) developed a 
strategic plan for implementing an ecosystem-based approach for 
achieving conservation targets (CALFED 2000a, pp. 1-3). The CDFG is the 
primary implementing agency for the ERP. The goal of ERP in improving 
conditions for longfin smelt will carry forward, irrespective of the 
species Federal listing status. CALFED had an explicit goal to balance 
the water supply program elements with the restoration of the Bay-Delta 
and tributary ecosystems and recovery of the longfin smelt and other 
species. Because achieving the diverse goals of the program is 
iterative and subject to annual funding by diverse agencies, the CALFED 
agencies have committed to maintaining balanced implementation of the 
program within an adaptive management framework. The intention of this 
framework is that the storage,

[[Page 19765]]

conveyance, and levee program elements would be implemented in such a 
way that the longfin smelt's status would be maintained and eventually 
improved.
    CALFED identified 54 species enhancement conservation measures for 
longfin smelt, more than half of which have been completed (CALFED 
Ecosystem Restoration Project 2011, entire). One such restoration 
action at Liberty Island at the southern end of the Yolo Bypass (a 
flood control project) has likely benefitted longfin smelt. After years 
of active agricultural production on Liberty Island, the levees were 
breached in 1997, and the island was allowed to return to a more 
natural state (Wilder 2010, slide 4). Wildlands Corporation has 
recently completed a restoration project removing several levees 
surrounding Liberty Island and creating 186 acres of various habitats 
for fish (Wildlands 2011, p. 1). Longfin smelt are utilizing the 
flooded island, and were collected in a number of surveys between 2003 
and 2005 (Liberty Island Monitoring Program 2005, pp. 42-44; Marshall 
et al. 2006, p. 1).
    The Bay-Delta Conservation Plan (BDCP), an effort to help provide 
restoration of the Bay-Delta ecosystem and reliable water supplies, is 
currently in preparation by a collaborative of water agencies, resource 
agencies, and environmental groups. The BDCP is intended to provide a 
basis for permitting take of listed species under sections 7 and 10 of 
the Act and the California Natural Communities Conservation Planning 
Act, and would provide a comprehensive habitat conservation and 
restoration plan for the Bay-Delta, as well as a new funding source. 
The BDCP shares many of the same goals outlined in the 2000 CALFED 
Record of Decision (CALFED 2000) but would not specifically address all 
listed-species issues. The BDCP would, however, target many of the 
threats to current and future listed species and could contribute to 
species recovery. However, the BDCP, if completed, would not be 
initiated until at least 2013 or later. The plan's implementation is 
anticipated to extend through 2060.

Humboldt Bay

    The Humboldt Bay Watershed Advisory Committee has completed the 
Humboldt Bay Salmon and Steelhead Conservation Plan with funding from 
CDFG, National Oceanographic Atmospheric Administration (NOAA), and the 
California State Coastal Conservancy with the purpose of protecting and 
restoring salmon habitat in Humboldt Bay through cooperative planning 
(Humboldt Bay Watershed Advisory Committee 2005, pp. 1-2). Many of the 
habitat restoration activities proposed may benefit longfin smelt, 
including restoration in freshwater streams and brackish sloughs. The 
Natural Resource Services has designed an enhancement program that is 
based on the Humboldt Bay Salmon and Steelhead Conservation Plan. 
Natural Resource Services has completed a tidal marsh enhancement 
project on Freshwater Creek and has other projects in the design stage 
(Don Allen 2011, pers. comm.). The Natural Resource Services is a 
division of the Redwood Community Action Agency dedicated to improving 
the health of northern California communities and the watersheds that 
they depend on (NRS 2011, p. 1). These types of restoration efforts are 
current and ongoing and may benefit longfin smelt by increasing access 
to intertidal areas within Humboldt Bay.

Puget Sound

    The Puget Sound Partnership is a Washington State Agency created in 
2007, to oversee the restoration and protection of Puget Sound. The 
Puget Sound Partnership created an Action Agenda that identifies and 
prioritizes work needed to protect and restore Puget Sound (Puget Sound 
Partnership 2008b, p. 2). Protection actions including local watershed 
planning, shoreline management planning, and citizen involvement 
through groups such as beach watchers and shore stewards are among the 
current restoration efforts in Puget Sound watershed (Puget Sound 
Partnership 2008a, pp. 1-2). These measures are expected to benefit 
longfin smelt by protecting and restoring habitat through legislative 
approval and funding for land acquisition for protection and 
restoration of ecologically important lands and habitats and by adding 
lands to State Aquatic Reserves program (Puget Sound Partnership 2008a, 
pp. 1-2).

Alaska

    State and Federal land ownership affords protection for vast 
distances of shoreline within Glacier Bay and Wrangell-St. Elias 
National Parks, Tongass National Forest, and State landholdings. 
Kachemak Bay, located near the mouth of lower Cook Inlet, is a National 
Estuarine Research Reserve regarded as extremely important for marine 
biodiversity conservation (ADFG 2006, pp. 133-134). Alaska's only State 
wilderness park, Kachemak Bay State Park, is also located in Kachemak 
Bay (ADNR 2011, p. 1). Yakutat Bay lies between peninsular and mainland 
Alaska and is bordered by Wrangell-St. Elias National Park to the 
northwest and Tongass National Forest. The Federal lands surrounding 
Yakutat Bay protect it from the effects of development. The Tongass 
National Forest management plan requires that logging activities be 
distanced from estuarine and riparian edges (ADFG 2006, p. 107). As a 
species group, the osmerids are identified in Alaska's Comprehensive 
Wildlife Conservation Strategy as Species of Greatest Conservation Need 
(ADFG 2006, pp. 140-143). The Conservation Action Plan for anadromous 
smelts identifies objectives, issues, and conservation actions to 
address information gaps. Determining life history, trophic ecology, 
instream flow and habitat needs, and monitoring protocols are included 
as measures that need to be undertaken as part of Alaska's Conservation 
Strategy to identify conservation status and needs of anadromous smelt 
including longfin.

Summary of Information Pertaining to the Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and implementing regulations 
(50 CFR part 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on 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:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In making these findings, information pertaining to each species in 
relation to the five factors provided in section 4(a)(1) of the Act is 
discussed below. In considering what factors might constitute threats 
to a species, we must look beyond the exposure of the species to a 
particular factor to evaluate whether the species may respond to the 
factor in a way that causes actual impacts to the species. If there is 
exposure to a factor and the species responds negatively, the factor 
may be a threat, and during the status review, we attempt to determine 
how significant a threat it is. The threat is significant if it drives 
or contributes to the risk of extinction of the species such that the 
species warrants listing as

[[Page 19766]]

endangered or threatened as those terms are defined by the Act. 
However, the identification of factors that could impact a species 
negatively may not be sufficient to compel a finding that the species 
warrants listing. The information must include evidence sufficient to 
suggest that the potential threat has the capacity (i.e., it should be 
of sufficient magnitude and extent) to affect the species' status such 
that it meets the definition of endangered or threatened under the Act.
    In making our 12-month finding on the petition, we considered and 
evaluated the best available scientific and commercial information. 
Much of the scientific and commercial information available on 
potential threats to longfin smelt comes from information on the Bay-
Delta, and therefore the threats analysis is largely focused on the 
Bay-Delta longfin smelt population.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Potential threats to longfin smelt habitat include the effects of 
reduced freshwater flow, climate change, and channel disturbance. 
Nearly all information available on Factor A threats to longfin smelt 
come from the Bay-Delta estuary. Therefore, our analysis below focuses 
on habitat impacts to the Bay-Delta population.
Reduced Freshwater Flow
    Most longfin smelt populations, other than those in a few 
freshwater lakes in Washington and British Columbia, are known from 
estuaries. Estuaries are complex ecosystems with boundaries between 
freshwater, brackish water, and saltwater that vary in time and space. 
Drought and water diversions affect these boundaries by altering the 
amounts and timing of freshwater flow into and within the estuary. 
These altered freshwater flows affect the physical and biological 
characteristics of the estuary, and the physical and biological 
characteristics of the estuary define longfin smelt habitat.
    Many environmental attributes respond to variance in freshwater 
flow into the estuary, including patterns of flooding and drought, 
nutrient loading, sediment loading (turbidity), concentration of 
organic matter and planktonic biota, physical changes in the movement 
and compression of the salt field, and changes in the hydrodynamic 
environment (Kimmerer 2002a, p. 40). The San Francisco Estuary exhibits 
one of the strongest and most consistent responses of biota to flow 
among large estuaries (Kimmerer 2004, p. 14).
    Reduced freshwater flows into estuaries may affect fish and other 
estuarine biota in multiple ways. Effects may include: (1) Decreased 
nutrient loading, resulting in decreased primary productivity; (2) 
decreased stratification of the salinity field, resulting in decreased 
primary productivity; (3) decreased organic matter loading and 
deposition into the estuary; (4) reduced migration cues; (5) decreased 
sediment loading and turbidity, which may affect both feeding 
efficiency and predation rates; (6) reduced dilution of contaminants; 
(7) impaired transport to rearing areas (e.g., low-salinity zones); and 
(8) reduction in physical area of, or access to, suitable spawning or 
rearing habitat (Kimmerer 2002b, p. 1280).

Bay-Delta Population

    Freshwater flow is strongly related to the natural hydrologic 
cycles of drought and flood. In the Bay-Delta estuary, increased Delta 
outflow during the winter and spring is the largest factor positively 
affecting longfin smelt abundance (Stevens and Miller 1983, pp. 431-
432; Jassby et al. 1995; Sommer et al. 2007, p. 274; Thomson et al. 
2010, pp. 1439-1440). During high outflow periods, larvae presumably 
benefit from increased transport and dispersal downstream, increased 
food production, reduced predation through increased turbidity, and 
reduced loss to entrainment due to a westward shift in the boundary of 
spawning habitat and strong downstream transport of larvae (CFDG 1992; 
Hieb and Baxter 1993; CDFG 2009a). Conversely, during low outflow 
periods, negative effects of reduced transport and dispersal, reduced 
turbidity, and potentially increased loss of larvae to predation and 
increased loss at the export facilities result in lower young-of-the-
year recruitment. Despite numerous studies of longfin smelt abundance 
and flow in the Bay-Delta, the underlying causal mechanisms are still 
not fully understood (Baxter et al. 2010, p. 69; Rosenfield 2010, p. 
9).
    As California's population has grown, demands for reliable water 
supplies and flood protection have grown. In response, State and 
Federal agencies built dams and canals, and captured water in 
reservoirs, to increase capacity for water storage and conveyance 
resulting in one of the largest manmade water systems in the world 
(Nichols et al. 1986, p. 569). Operation of this system has altered the 
seasonal pattern of freshwater flows in the watershed. Storage in the 
upper watershed of peak runoff and release of the captured water for 
irrigation and urban needs during subsequent low flow periods result in 
a broader, flatter hydrograph with less seasonal variability in 
freshwater flows into the estuary (Kimmerer 2004, p. 15).
    In addition to the system of dams and canals built throughout the 
Sacramento River-San Joaquin River basin, the Bay-Delta is unique in 
having a large water diversion system located within the estuary 
(Kimmerer 2002b, p. 1279). The State Water Project (SWP) and Central 
Valley Project (CVP) operate two water export facilities in the Delta 
(Sommer et al. 2007, p. 272). Project operation and management is 
dependent upon upstream water supply and export area demands. Despite 
the size of the water storage and diversion projects, much of the 
interannual variability in Delta hydrology is due to variability in 
precipitation from year to year. Annual inflow from the watershed to 
the Delta is strongly correlated to unimpaired flow (runoff that would 
hypothetically occur if upstream dams and diversions were not in 
existence), mainly due to the effects of high-flow events (Kimmerer 
2004, p. 15). Water operations are regulated in part by the California 
State Water Resources Control Board (SWRCB) according to the Water 
Quality Control Plan (WQCP) (SWRCB 2000, entire). The WQCP limits Delta 
water exports in relation to Delta inflow (the Export/Inflow, or E/I 
ratio).
    It is important to note that in the case of the Bay-Delta, 
freshwater flow is expressed as both Delta inflow (from the rivers into 
the Delta) and as Delta outflow (from the Delta into the lower 
estuary), which are closely correlated, but not equivalent. Freshwater 
flow into the Delta affects the location of the low salinity zone and 
X2 within the estuary. Because longfin smelt spawn in freshwater, they 
must migrate farther upstream to spawn as flow reductions alter the 
position of X2 and the low-salinity zone moves upstream (CDFG 2009, p. 
17). Longer migration distances into the Bay-Delta make longfin smelt 
more susceptible to entrainment in the State and Federal water pumps 
(see Factor E: Entrainment Losses). In periods with greater freshwater 
flow into the Delta, X2 is pushed farther downstream (seaward); in 
periods with low flows, X2 is positioned farther landward (upstream) in 
the estuary and into the Delta. Not only is longfin smelt abundance in 
the Bay-Delta strongly correlated with Delta inflow and X2, but the 
spatial distribution of longfin smelt larvae is also strongly 
associated with X2 (Dege and Brown 2004, pp. 58-60; Baxter et al. 2010, 
p. 61). As longfin hatch into larvae, they move from the areas where 
they are spawned and

[[Page 19767]]

orient themselves just downstream of X2 (Dege and Brown 2004, pp. 58-
60). Larval (winter-spring) habitat varies with outflow and with the 
location of X2 (CDFG 2009, p. 12), and has been reduced since the 1990s 
due to a general upstream shift in the location of X2 (Hilts 2012, 
unpublished data). The amount of rearing habitat (salinity between 0.1 
and 18 ppt) is also presumed to vary with the location of X2 (Baxter et 
al. 2010, p. 64). However, as previously stated, the location of X2 is 
of particular importance to the distribution of newly-hatched larvae 
and spawning adults. The influence of water project operations from 
November through April, when spawning adults and newly-hatched larvae 
are oriented to X2, is greater in drier years than in wetter years 
(Knowles 2002, p. 7).
    Research on declines of longfin smelt and other pelagic fish 
species in the Bay-Delta since 2002 (referred to as Pelagic Organism 
Decline--see Abundance section, above) have most recently been 
summarized in the Interagency Ecological Program's 2010 Pelagic 
Organism Decline Work Plan and Synthesis of Results (Baxter et al. 
2010, pp. 61-69). While Baxter et al. (2010, pp. 17-19) acknowledge 
significant uncertainties about the causal mechanisms underlying the 
Pelagic Organism Decline, they have identified reduced Delta freshwater 
flows as one of several key factors that they believe contribute to 
recent declines in the abundance of longfin smelt (Baxter et al. 2010, 
pp. 61-69, Figure 5).

Other Populations

    Information on effects of reduced freshwater flows on longfin smelt 
populations other than the Bay-Delta population are lacking. Dams and 
reservoirs are located in the inland water basins of most of the 
estuaries where longfin smelt occur. Some of these systems are large 
and consist of multiple dams and diversions (e.g., Klamath River basin, 
Columbia River basin). Water diversion systems with dams, canals, and 
water pipelines located upstream of the estuary may affect longfin 
smelt aquatic habitat by reducing freshwater flows into the estuary--
especially if water is diverted out of the drainage basin--and altering 
the timing of freshwater flows into the estuary.
Climate Change
    ``Climate'' refers to an area's long-term average weather 
statistics (typically for at least 20- or 30-year periods), including 
the mean and variation of surface variables such as temperature, 
precipitation, and wind, whereas ``climate change'' refers to a change 
in the mean and/or variability of climate properties that persists for 
an extended period (typically decades or longer), whether due to 
natural processes or human activity (Intergovernmental Panel on Climate 
Change (IPCC) 2007a, p. 78). Although changes in climate occur 
continuously over geological time, changes are now occurring at an 
accelerated rate. For example, at continental, regional, and ocean 
basin scales, recent observed changes in long-term trends include: a 
substantial increase in precipitation in eastern parts of North 
American and South America, northern Europe, and northern and central 
Asia, and an increase in intense tropical cyclone activity in the North 
Atlantic since about 1970 (IPCC 2007a, p. 30); and an increase in 
annual average temperature of more than 2 [deg]F (1.1 [deg]C) across 
the United States since 1960 (Global Climate Change Impacts in the 
United States (GCCIUS) 2009, p. 27). Examples of observed changes in 
the physical environment include: an increase in global average sea 
level, and declines in mountain glaciers and average snow cover in both 
the northern and southern hemispheres (IPCC 2007a, p. 30); substantial 
and accelerating reductions in arctic sea-ice (e.g., Comiso et al. 
2008, p. 1); and a variety of changes in ecosystem processes, the 
distribution of species, and the timing of seasonal events (e.g., 
GCCIUS 2009, pp. 79-88).
    The IPCC used Atmosphere-Ocean General Circulation Models and 
various greenhouse gas emissions scenarios to make projections of 
climate change globally and for broad regions through the 21st century 
(Meehl et al. 2007, p. 753; Randall et al. 2007, pp. 596-599), and 
reported these projections using a framework for characterizing 
certainty (Solomon et al. 2007, pp. 22-23). Examples include: (1) It is 
virtually certain there will be warmer and more frequent hot days and 
nights over most of the earth's land areas; (2) it is very likely there 
will be increased frequency of warm spells and heat waves over most 
land areas, and the frequency of heavy precipitation events will 
increase over most areas; and (3) it is likely that increases will 
occur in the incidence of extreme high sea level (excludes tsunamis), 
intense tropical cyclone activity, and the area affected by droughts 
(IPCC 2007b, p. 8, Table SPM.2). More recent analyses using a different 
global model and comparing other emissions scenarios resulted in 
similar projections of global temperature change across the different 
approaches (Prinn et al. 2011, pp. 527, 529).
    All models (not just those involving climate change) have some 
uncertainty associated with projections due to assumptions used, data 
available, and features of the models; with regard to climate change 
this includes factors such as assumptions related to emissions 
scenarios, internal climate variability, and differences among models. 
Despite this, however, under all global models and emissions scenarios, 
the overall projected trajectory of surface air temperature is one of 
increased warming compared to current conditions (Meehl et al. 2007, p. 
762; Prinn et al. 2011, p. 527). Climate models, emissions scenarios, 
and associated assumptions, data, and analytical techniques will 
continue to be refined, as will interpretations of projections, as more 
information becomes available. For instance, some changes in conditions 
are occurring more rapidly than initially projected, such as melting of 
arctic sea ice (Comiso et al. 2008, p. 1; Polyak et al. 2010, p. 1797), 
and since 2000 the observed emissions of greenhouse gases, which are a 
key influence on climate change, have been occurring at the mid- to 
higher levels of the various emissions scenarios developed in the late 
1990s and used by the IPPC for making projections (e.g., Raupach et al. 
2007, Figure 1, p. 10289; Manning et al. 2010, Figure 1, p. 377; Pielke 
et al. 2008, entire). Also, the best scientific and commercial data 
available indicate that average global surface air temperature is 
increasing and that several climate-related changes are occurring and 
will continue for many decades even if emissions are stabilized soon 
(e.g. Meehl et al. 2007, pp. 822-829; Church et al. 2010, pp. 411-412; 
Gillett et al. 2011, entire).
    Changes in climate can have a variety of direct and indirect 
impacts on species, and can exacerbate the effects of other threats. 
Rather than assessing ``climate change'' as a single threat in and of 
itself, we examine the potential consequences to species and their 
habitats that arise from changes in environmental conditions associated 
with various aspects of climate change. For example, climate-related 
changes to habitats, predator-prey relationships, disease and disease 
vectors, or conditions that exceed the physiological tolerances of a 
species, occurring individually or in combination, may affect the 
status of a species. Vulnerability to climate change impacts is a 
function of sensitivity to those changes, exposure to those changes, 
and adaptive capacity (IPCC 2007, p. 89;

[[Page 19768]]

Glick et al. 2011, pp. 19-22). As described above, in evaluating the 
status of a species, the Service uses the best scientific and 
commercial data available, and this includes consideration of direct 
and indirect effects of climate change. As is the case with all 
potential threats, if a species is currently affected or is expected to 
be affected by one or more climate-related impacts, this does not 
necessarily mean the species is an endangered or threatened species as 
defined under the Act. If a species is listed as endangered or 
threatened, this knowledge regarding its vulnerability to, and impacts 
from, climate-associated changes in environmental conditions can be 
used to help devise appropriate strategies for its recovery.
    The effects of climate change do not act in isolation, but act in 
combination with existing threats to species and systems. We considered 
the potential effects of climate change on the longfin smelt based on 
projections derived from various modeling scenarios. Temperature 
increases are likely to lead to a continued rise in sea level, further 
increasing salinity within longfin smelt estuarine rearing habitat and 
likely shifting spawning and early rearing upstream as the boundary of 
fresh and brackish water moves upstream (Baxter 2011, pers. comm.). 
Reduced snowpack, earlier melting of the snowpack, and increased water 
temperatures will likely alter freshwater flows, possibly shifting and 
condensing the timing of longfin smelt spawning (Baxter 2011, pers. 
comm.).
    Effects of climate change could be particularly profound for 
aquatic ecosystems and include increased water temperatures and altered 
hydrology, along with changes in the extent, frequency, and magnitude 
of extreme events such as droughts, floods, and wildfires (Reiman and 
Isaak 2010, p. 1). Numerous climate models predict changes in 
precipitation frequency and pattern in the western United States (IPCC 
2007b, p. 8). Projections indicate that temperature and precipitation 
changes will diminish snowpack, changing the availability of natural 
water supplies (USBR 2011, p. 143). Warming may result in more 
precipitation falling as rain and less storage as snow. This would 
result in increased rain-on-snow events and increase winter runoff as 
spring runoff decreases (USBR 2011, p. 147). Earlier seasonal warming 
increases the likelihood of rain-on-snow events, which are associated 
with mid-winter floods. Smaller snowpacks that melt earlier in the year 
result in increased drought frequency and severity (Rieman and Isaak 
2010, p. 6). These changes may lead to increased flood and drought risk 
during the 21st century (USBR 2011, p. 149).
    It is uncertain how a change in the timing and duration of 
freshwater flows will affect longfin smelt. The melting of the snowpack 
earlier in the year could result in higher flows in January and 
February, which are peak spawning and hatching months for longfin 
smelt. This would reduce adult migration distance and increase areas of 
freshwater spawning habitat during these months, potentially creating 
better spawning and larval rearing conditions. Associated higher 
turbidity may reduce predation on longfin smelt adults and larvae 
(Baxter 2011, pers. comm.). However, if high flows last only a short 
period, benefits may be negated by poorer conditions before and after 
the high flows. As the freshwater boundary moves farther inland into 
the Delta with increasing sea level (see below) and reduced flows, 
adults will need to migrate farther into the Delta to spawn, increasing 
the risk of predation and the potential for entrainment into water 
export facilities and diversions for both themselves and their progeny.
    Global sea level rose at an average rate of 1.8 mm (0.07 in) per 
year from 1961 to 2003, and at an average rate of 3.1 mm (0.12 in) per 
year from 1993 to 2003 (IPCC 2007a, p. 49). The IPCC (2007b, p. 13) 
report estimates that sea levels could rise by 0.18 to 0.58 m (0.6 to 
1.9 ft) by 2100; however, Rahmstorf (2007, p. 369) indicated that 
global sea level rise could increase by over 1.2 m (4 ft) in that time 
period (CEC 2009, p. 49). Even if emissions could be halted today, the 
oceans would continue to rise and expand for centuries due to their 
capacity to store heat (CEC 2009, pp. 49-50). In the Bay-Delta, higher 
tides combined with more severe drought and flooding events are likely 
to increase the likelihood of levee failure, possibly resulting in 
major alterations of the environmental conditions (Moyle 2008, pp. 362-
363). It is reasonable to conclude that more severe drought and 
flooding events will also occur in other estuaries where the longfin 
smelt occurs. Sea level rise is likely to increase the frequency and 
range of saltwater intrusion. Salinity within the northern San 
Francisco Bay is projected to rise 4.5 psu by the end of the century 
(Cloern et al. 2011, p. 7). Elevated salinity levels could push the 
position of X2 farther up the estuary and could result in increased 
distances that longfin smelt must migrate to reach spawning habitats. 
Elevated sea levels could result in greater sedimentation, erosion, 
coastal flooding, and permanent inundation of low-lying natural 
ecosystems (CDFG 2009, p. 30).
    Typically, longfin smelt spawning in the Bay-Delta occurs at water 
temperatures between 7.0 and 14.5 [deg]C (44.6-58.2 [deg]F), although 
spawning has been observed at lower temperatures in other areas, such 
as Lake Washington (Moyle 2002, p. 236). Mean annual water temperatures 
within the upper Sacramento River portion of the Bay-Delta estuary are 
expected to approach or exceed 14 [deg]C during the second half of this 
century (Cloern et al. 2011, p. 7). Increased water temperatures could 
compress the late-fall to early-spring spawning period and could result 
in shorter egg incubation time. Longfin smelt are adapted to hatching 
in cold, relatively unproductive waters where they grow slowly until 
ample food resources are available in spring. Warmer water during 
winter would likely result in increased metabolism of larvae, which may 
result in increased food needs for maintenance and growth and create a 
mismatch between food needs and availability (Baxter 2011, pers. 
comm.). If increased water temperatures compress the spawning period 
and lead to more synchronized hatching during winter, then prevailing 
low sunlight and low food resources could result in greater intra-
specific (within species) competition (Baxter 2011, pers. comm.). 
Moreover, increasing water temperatures might also lead to earlier 
spawning and hatching of other fishes, and to greater inter-specific 
(between species) competition.
    Although climate change and sea level rise are projected to result 
in continued increases in water temperature and salinity, longfin smelt 
is considered euryhaline (tolerant of a wide range of salinities) 
(Moyle 2002, p. 236; Rosenfield and Baxter 2007 p. 1578) and is known 
to move between different parts of the estuary that vary greatly in 
temperature and salinity. Being able to move between aquatic habitats 
that vary greatly in water temperature and salinity may reduce the 
potential impacts of climate change and sea level rise to some degree.
Channel Disturbances
    Dredging and other channel disturbances potentially degrade 
spawning habitat and cause entrainment loss of individual fish and 
eggs; disposal of dredge spoils also can create large sediment plumes 
that expose fish to gill-clogging sediments and possibly to decreased 
oxygen availability (Levine-Fricke 2004, p. 56). Longfin smelt is a 
pelagic species (living away from the bottom of the water column and

[[Page 19769]]

shoreline), and thus less likely to be directly affected by dredging, 
sand and gravel mining, and other disturbances to the channel bed 
compared to bottom-dwelling fish species. Longfin smelt are likely most 
vulnerable to entrainment by dredging during spawning and egg 
incubation because eggs are deposited and develop on channel bottom 
substrates (CDFG 2009, p. 27). Egg development takes approximately 40 
days (Moyle 2002, p. 236).
    We have found no information documenting population impacts of 
dredging or sand and gravel mining on longfin smelt. Channel 
maintenance dredging occurs regularly within the Bay-Delta and other 
estuaries that serve as shipping channels (e.g., Humboldt Bay, Coos 
Bay, Yaquina Bay, Columbia River). In their 2009 status review on 
longfin smelt, CDFG concluded that effects of regular maintenance 
dredging and sand mining within the Bay-Delta estuary on longfin smelt 
were expected to be small and localized (CDFG 2009, p. 26). They 
reviewed two studies on entrainment effects of channel dredging, and 
each study found that no longfin smelt were entrained during dredging 
(fish that were entrained were primarily bottom-dwelling species).
    There is currently a proposal to deepen and selectively widen the 
Sacramento Deep Water Ship Channel and the lower portion of the 
Sacramento River in the Bay-Delta. This dredging project would remove 
between 6.1-7.6 million cubic meters (8 and 10 million cubic yards) of 
material from the channel and Sacramento River and extend for 74 km 
(45.8 mi) (USACE 2011a, entire). Potential effects of this new project 
to longfin smelt include mortality through loss of spawning substrate, 
habitat modification, and a shift in spawning and rearing habitat. The 
project also has potential to alter breeding and foraging behavior of 
the Bay-Delta longfin smelt population. However, this project is only a 
proposal at this time and is not certain to occur. Potential effects of 
the proposed project are currently under evaluation.
Summary of Factor A
    Although we find that reduced freshwater flows are currently a 
threat to the Bay-Delta longfin smelt population, it is difficult to 
make inferences on the effects of reduced freshwater flows to longfin 
smelt populations throughout the species range. Because the Bay-Delta 
system includes one of the largest man made water system in the world, 
it would be impractical to compare diversions and alterations in other 
estuaries to diversions and alterations in the Bay-Delta. The effects 
of water development in the Bay-Delta are unique to the physical, 
geologic, and hydrologic environment of the estuary. Reduced flow from 
diversions and dams in other estuaries is not expected to be as 
significant as the reduced flows that have been shown in the Bay-Delta 
because less water is exported from other estuaries. We have no 
information to show that reduced freshwater flow is a threat to longfin 
smelt in other estuaries. Therefore, we conclude that while reduced 
flow is a threat to the Bay-Delta population of longfin smelt, the best 
available science does not indicate that the lack of freshwater flow is 
a threat to the species in other parts of its range.
    Climate change will likely affect longfin smelt in multiple ways, 
but longfin smelt are able to move between a wide range of aquatic 
environments that vary greatly in water temperature and salinity. These 
behavioral and physiological characteristics of the species may help it 
adapt to effects of climate change. We conclude at this time that the 
best available information does not indicate that climate change 
threatens the continued existence of longfin smelt across its range.
    Channel disturbances may have localized impacts to longfin smelt 
habitat suitability, but the best available information does not 
indicate that they pose significant threats to the species throughout 
its range.
    Based on the best available scientific information, we conclude 
that reduced freshwater flows, climate change, and channel disturbances 
are not significant current or future threats to longfin smelt across 
its range except in the Bay-Delta, where reduced freshwater flow is a 
threat.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

Recreational and Commercial Fishing
    In California, longfin smelt was listed as a threatened species 
under the State's Endangered Species Act in 2009. This status makes 
take of longfin smelt illegal, unless authorized by an incidental take 
permit or other take authorization. However, longfin smelt are caught 
as bycatch in small bay shrimp trawl fishery and bait fishing 
(anchovies and sardines) operations in South San Francisco Bay, San 
Pablo Bay, and Carquinez Strait (CDFG 2009a, p. 1). CDFG (2009d, pp. 6, 
9) estimated the total longfin smelt bycatch from shrimping in 1989 and 
1990 at 15,539 fish, and in 2004 at 18,815-30,574 fish. CDFG noted in 
2009 that the bay shrimp trawl fishery industry had declined since 2004 
(CDFG 2009d, p. 3). No shrimp fishery currently takes place in Humboldt 
Bay (Mello 2011, pers. comm.).
    In Oregon, smelt species may not be targeted in commercial 
fisheries, and if taken incidentally, smelt catch cannot exceed 1 
percent of the total weight landed (ODFW 2011, p. 17). Rules limit in 
which estuaries bait fishing for herring, sardines, anchovies, and shad 
may occur. In Oregon, there is currently no known shrimping taking 
place within the estuaries where the longfin smelt might be found. 
Although a limited entry roe herring fishery is allowed in Yaquina Bay, 
no landings have occurred there since 2003, because biomass estimates 
have generally been too low to make the fishery economically viable 
(Krutzikowsky 2011, pers. comm.). Anchovy fishing is allowed in 
Tillamook Bay, Yaquina Bay, and Coos Bay, but because there is 
currently no anchovy fishing occurring in these areas (Krutzikowsky 
2011, pers. comm.), longfin smelt are not taken as bycatch. Records for 
commercial landings in Oregon show a total of 9.1 kilograms (kg) (20 
pounds (lb)) landed from 2005 to 2010 for smelt species other than 
eulachon. Recreational fishing for smelt species is allowed only in 
marine waters (Oregon Sport Fishing Regulations, p. 11).
    The State of Washington includes longfin smelt in a class of fish 
referred to as forage fish (small schooling fish that are major food 
items for many species of fish, birds, and marine mammals) (Bargmann 
1998, p. 1). Both recreational and commercial fisheries exist for 
forage fish in Washington, but the recreational fishery is much smaller 
than the commercial fishery. A sport fishing license is not needed to 
catch smelt. Smelt can be harvested recreationally using a dip net or 
jig. Dip net fishing for longfin smelt is allowed in the Nooksack River 
and there are approximately two hundred trips a year made to fish for 
longfin smelt in this area (O'Toole 2011, pers. comm.). It is unlawful 
to use a herring or smelt rake. Sport and tribal commercial fisheries 
have been reported to occur on the Nooksack River longfin smelt stock 
(Bargmann 1998, p. 37). Longfin smelt may be caught incidentally in a 
medium-sized shore or pier-based recreational fishery for surf smelt in 
Puget Sound.
    There is currently no commercial fishing regulation specific to 
longfin smelt in Washington (Paulson 2011, pers. comm.). The daily 
limit for smelt is 4.5 kg (10 lb) and, like Oregon, is counted as an 
aggregate, which can include herring, sardines, sandlance,

[[Page 19770]]

and anchovies (WDFW 2011, p. 27). There is a robust commercial herring 
fishery in Washington that takes approximately 450 metric tons (500 
tons) of fish per year (for sport bait) and a commercial surf smelt 
fishery that takes approximately 450,000 kg (100,000 lb) of fish per 
year (for human consumption). Longfin smelt bycatch in both of these 
fisheries is low. Anchovy fishing in Washington primarily takes place 
in Grays Harbor and the mouth of the Columbia River (O'Toole 2011, 
pers. comm.).
    In British Columbia, take of smelt from recreational fishing is 
limited to 20 kilograms (kg) (44 lb) per day and 40 kg (88 lb) of total 
catch in possession. The fishing season takes place from April 1 to 
June 14 (Department of Fisheries and Oceans Canada 2011a, p. 47). A 
commercial fishing industry targeting surf smelt may incidentally take 
longfin smelt (Department of Fisheries and Oceans Canada 2011b, p. 1). 
British Columbia supports a year-round shrimp fishery in Prince Rupert 
and Chatham Sound. Sardine and shrimp fishing occurs near Vancouver.
    In Alaska, a commercial fishery for smelt, which includes eulachon, 
was reopened in 2005. This fishery is restricted to the brackish waters 
of Cook Inlet, from May 1 to June 30. The total annual harvest of 
eulachon and longfin smelt may not exceed 90 metric tons (100 tons) of 
smelt. However, longfin smelt are unlikely to be specifically targeted 
in this fishery due to their small numbers in relation to eulachon in 
the region (Shields 2005, p. 4). Sport fishing is limited to salt 
water, where herring and smelt may be taken (Alaska Department of Fish 
and Game (ADFG) 2010, p. 1). In Prince William Sound, the herring 
fishery has closed due to low abundance of herring.
Monitoring Surveys
    Fisheries monitoring surveys are conducted by NOAA's National 
Marine Fisheries Service, the Service and by State and local agencies 
in water bodies inhabited by longfin smelt throughout their range. Most 
of these surveys target other species, primarily salmonids, and rarely 
collect longfin smelt outside of the Bay-Delta area.
    Within the Bay-Delta, longfin smelt are regularly captured in 
monitoring surveys. The Interagency Ecological Program (IEP) implements 
scientific research in the Bay-Delta. Although the focus of its studies 
and the level of effort have changed over time, in general, their 
surveys have been directed at researching the Pelagic Organism Decline 
in the Bay-Delta. Between the years of 1987 to 2011, combined take of 
longfin smelt less than 20 mm (0.8 in) in length ranged from 2,405 to 
158,588 annually. All of these fish were preserved for research or 
assumed to die in processing. During the same time period, combined 
take for juveniles and adults (fish greater than or equal to 20 mm (0.8 
in)) ranged from 461 to 68,974 annually (IEP 2011, no pagination). 
Although mortality is unknown, the majority of these fish likely do not 
survive. The Chipps Island survey, which is conducted by the Service, 
has captured an average of 2,697 longfin smelt per year during the past 
10 years. Biologists attempt to release these fish unharmed, but at 
least 5,154 longfin smelt were known to have died during the Chipps 
Island survey between 2001 and 2008 (Service 2010, entire).
    Survey methods have been modified recently to minimize potential 
impacts to delta smelt, a related species that also occurs in the Bay-
Delta (75 FR 17669; April 7, 2010). These modifications are likely to 
result in reduced impacts to longfin smelt also. The Service conducts 
other surveys in the Bay-Delta to monitor salmon populations (Mossdale 
trawl, Sacramento trawl, beach seine surveys), but few longfin smelt 
are captured during these surveys. Mortality due to monitoring surveys 
was not identified by the Interagency Ecological Program in its most 
recent synthesis of results as a factor in the decline of longfin smelt 
and other pelagic fish species in the Bay-Delta since the early 2000s 
(Baxter et al. 2010, pp. 19-53, 61-69).
Summary of Factor B
    The species is incidentally caught in commercial shrimp and bait 
fishing operations throughout much of its range, but the bycatch 
numbers are usually low. In California, take of longfin smelt is 
illegal without authorization because the species is listed as 
threatened under the California Endangered Species Act. Because of its 
small size, it is not targeted by recreational angling, although it is 
certainly caught and used as bait for other larger recreational fish 
species. Monitoring surveys have resulted in high numbers of longfin 
smelt mortality in the Bay-Delta in the past, but efforts being made to 
reduce survey mortality for delta smelt, such as reductions in tow 
times, likely have also benefitted longfin smelt. The scientific 
collection surveys being conducted in the Bay-Delta are limited to 
research designed to benefit the species, and mortality from monitoring 
surveys has not been identified as a factor in the longfin smelt's 
recent population decline. We have no information indicating that 
mortality from monitoring surveys threatens any populations within the 
species' range. We conclude that overutilization due to commercial, 
recreational, or scientific take is not a significant current or future 
threat to the longfin smelt throughout its range.

Factor C. Disease or Predation

Disease
    All the information we found on disease in longfin populations 
originated from studies in the Bay-Delta. Two investigations published 
in 2006 and 2008 by the California-Nevada Fish Health Center detected 
no significant health problems in juvenile longfin smelt in the Bay-
Delta (Foott and Stone 2008, pp. 15-16). The low observed rate of 
parasitic infection did not appear to affect the health of the fish, as 
indicated by the lack of associated tissue damage or inflammation 
(Foott and Stone 2008, p. 15). The only additional documentation of 
relevant wild fish disease in the Bay-Delta was a severe intestinal 
infection by a new species of myxozoan observed in nonnative juvenile 
yellowfin goby (Acanthogobius flavimanus) from Suisun Marsh (Baxa et 
al. in prep cited in Baxter et al. 2008, p. 16). The nonnative gobies 
could act as potential vectors of the parasite to other susceptible 
species in the Bay-Delta. It is unknown whether this or similar 
infections are affecting the health of longfin smelt.
    The south Delta is fed by water from the San Joaquin River, where 
pesticides (e.g., chlorpyrifos, carbofuran, and diazinon), salts (e.g., 
sodium sulfates), trace elements (boron and selenium), and high levels 
of total dissolved solids are prevalent due to agricultural runoff (64 
FR 5963; February 8, 1999). Pesticides and other toxic chemicals may 
adversely affect the immune system of longfin smelt and other fish in 
the Bay-Delta and other estuaries, but we found no information 
documenting such effects (see Factor E: Contaminants, below).
Predation
    As a forage species, longfin smelt are preyed upon by a variety of 
fishes, birds, and mammals (Barnhart et al. 1992, p. 44). However, we 
found little information on predation of longfin smelt other than 
information for the Bay-Delta population and Lake Washington 
population. The striped bass (Morone saxatilis) is a potential predator 
of longfin smelt in the Bay-Delta. Striped bass were introduced into 
the Bay-Delta in 1879 and quickly became abundant throughout the 
estuary. However, their numbers have

[[Page 19771]]

declined substantially over the last 40 years (Thomson et al. 2010, p. 
1440), and they are one of the four species studied under Pelagic 
Organism Decline investigations (Baxter et al. 2010, p. 16). Numbers of 
largemouth bass (Micropterus dolomieui), another introduced species in 
the Bay-Delta, have increased in the Delta over the past few decades 
(Brown and Michniuk 2007, p. 196). Largemouth bass, however, occur in 
shallow freshwater habitats, closer to shore than the pelagic longfin 
smelt, and do not typically co-occur with longfin smelt. Baxter et al. 
(2010, p. 40) reported that no longfin smelt have been found in 
largemouth bass stomachs sampled in a recent study of largemouth bass 
diet. Moyle (2002, p. 238) believed that inland silverside (Menidia 
beryllina), another nonnative predatory fish, may be an important 
predator on longfin smelt eggs, larvae, juveniles, and adults. 
Rosenfield (2010, p. 18) acknowledged that they are likely major 
predators of longfin smelt eggs and larvae but thought it unlikely that 
they were an important predator on juveniles and subadults because 
inland silversides prefer shallow water habitats whereas juvenile and 
subadult longfin smelt do not.
    In the Bay-Delta, predation of longfin smelt may be high in the 
Clifton Court Forebay, where the SWP water export pumping plant is 
located (Moyle 2002, p. 238; Baxter et al. 2010, p. 42). However, once 
they are entrained in the Clifton Court Forebay, longfin smelt 
mortality would be high anyway due to high water temperatures in the 
forebay (CDFG 2009b, p. 4) and entrainment into the SWP water export 
pumping plant. In addition to elevated predation levels in the Clifton 
Court Forebay, predation also is concentrated at sites where fish 
salvaged from the SWP and CVP export facilities are released (Moyle 
2002, p. 238). However, few longfin smelt survive the salvage and 
transport process (see Factor E: Entrainment Losses, below) and 
therefore predation is not expected to be an important factor at drop-
off sites. Reduced freshwater flows may result in lower turbidity and 
increased water clarity (see Factor A, above), which may contribute to 
increased risk of predation (Baxter et al. 2010, p. 64).
    In Lake Washington, longfin are preyed upon by prickly sculpin 
(Cottus asper) (Tabor et al. 2007, p. 1085) and cutthroat trout 
(Oncorhynchus clarki) (Norwak et al. 2004, p. 632; Beauchamp et al. 
1992, p. 156). Cutthroat trout have displaced the northern pikeminnow 
as the most important predator in Lake Washington and may be having an 
effect on other components of the ecosystem, including longfin smelt 
populations (Norwak et al. 2004, pp. 633-634).
Summary of Factor C
    Similar to other threats, very little information is available 
about disease or predation threats to longfin smelt populations outside 
of the Bay-Delta. We found no information that disease is a threat to 
the longfin smelt throughout its range. Longfin smelt is a small fish 
that is preyed upon by a wide variety of fish, birds, and mammals, but 
we found no information documenting predation as a threat to the 
species rangewide. Predation, along with mortality from entrainment 
(see Factor E: Entrainment Losses, below), has been identified as a 
top-down effect that may be contributing to recent declines of longfin 
smelt and other pelagic fish species in the Bay-Delta estuary (Pelagic 
Organism Decline) (Sommer et al. 2007, p. 275). However, factors 
contributing to the Pelagic Organism Decline are numerous and complex, 
and the combination of underlying causal mechanisms remains uncertain 
(Baxter et al. 2010, pp. 61-69). Therefore, based on our review of the 
best available scientific and commercial information, we conclude that 
disease or predation are not significant current or future threats to 
the longfin smelt throughout its range.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

Federal Laws
    A number of federal environmental laws and regulations exist that 
may provide some protection for longfin smelt: the National 
Environmental Policy Act, the Central Valley Project Improvement Act, 
and the Clean Water Act.

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 longfin smelt.

Central Valley Project Improvement Act

    The Central Valley Project Improvement Act (Pub. L. 102-575) 
(CVPIA) amends the previous Central Valley Project 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 (Pub. L. 102-575, October 30, 1992; Bureau of 
Reclamation 2009). Included in CVPIA section 3406 (b)(2) was a 
provision to dedicate 800,000 acre-feet of Central Valley Project yield 
annually (referred to as ``(b)(2) water'') for fish, wildlife, and 
habitat restoration. Since 1993, (b)(2) water has been used and 
supplemented with acquired environmental water (Environmental Water 
Account and CVPIA section 3406 (b)(3) water) to increase stream flows 
and reduce Central Valley Project export pumping in the Delta. These 
management actions were taken to contribute to the CVPIA salmonid 
population doubling goals and to protect Delta smelt and their habitat 
(Guinee 2011, pers. comm.). As discussed above, (see Biology and Factor 
A discussions), increased freshwater flows have been shown to be 
positively correlated with longfin smelt abundance; therefore, these 
management actions, although targeted towards other species, should 
also benefit longfin smelt.

Clean Water Act

    Established in 1977, the Clean Water Act (33 U.S.C. 1251 et seq.) 
is the primary Federal law in the United States regulating water 
pollution. It employs a variety of regulatory and non-regulatory means 
to reduce direct water quality impacts and manage polluted runoff. The 
Clean Water Act provides the basis for the National Pollutant Discharge 
Elimination System (NPDES) and gives the Environmental Protection 
Agency (EPA) the authority to set effluent limits and require any 
entity discharging pollutants to obtain a NPDES permit. The EPA is 
authorized through the Clean Water Act to delegate the authority to 
issue NPDES permits to State governments and has done so in California. 
In States that have been authorized to implement Clean Water Act 
programs, EPA retains oversight responsibilities. Water bodies that do 
not meet applicable water quality

[[Page 19772]]

standards are placed on the section 303(d) list of impaired water 
bodies, and the State is required to develop appropriate total maximum 
daily loads (TMDL) for the water body. A TMDL is a calculation of the 
maximum amount of a pollutant that a water body can receive and still 
meet water quality standards. At present, TMDLs are not in place in all 
impaired watersheds in which longfin smelt are known to occur. The 
Clean Water Act has not effectively limited ammonia input into the 
system, and ammonia has been shown to negatively affect the longfin 
smelt's food supply.
State Laws
    The State of California has a number of environmental laws and 
regulations which may provide some protection for longfin smelt: 
California Endangered Species Act, California Environmental Quality 
Act, California Marine Invasive Species Act, Porter-Cologne Water 
Quality Control Act, and regulatory prohibitions on streambed 
alterations.

California Endangered Species Act

    Longfin smelt was listed as threatened under the California 
Endangered Species Act (CESA) (California Fish and Game Code 2050 et 
seq.) in 2009. 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's implementing regulations 
includes significant modification or degradation of habitat that 
actually kills or injures wildlife by significantly impairing essential 
behavioral patterns (50 CFR 17.3). CESA allows take of species for 
otherwise lawful projects through use of an incidental take permit. An 
incidental take permit requires that impacts be minimized and fully 
mitigated (CESA sections 2081 (b) and (c)). Furthermore, CESA requires 
that the issuance of the permit will not jeopardize the continued 
existence of a State-listed species. The CESA does require consultation 
between 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). Longfin Smelt Incidental Take Permit 
No. 2081-2009-001-03 specifies that the Smelt Working Group, which was 
created under the Service's 2008 delta smelt biological opinion 
(Service 2008, p. 30), provide recommendations for export pumping 
reduction to CDFG if any of several criteria is reached. One of the 
criteria is that total salvage of adult longfin smelt (fish greater 
than or equal to 80 mm in length) at the State Water Project and 
Central Valley Project export pumps between December and February may 
not exceed five times the Fall Midwater Trawl longfin smelt annual 
abundance index. Also, if longfin abundance is low and surveys indicate 
that adults are distributed close to the export pumps, the Smelt 
Working Group may consider making recommendations for Old and Middle 
River Flows that would reduce pumping (CDFG 2009c, pp. 1-34; Smelt 
Working Group 2011, p. 4).

California Environmental Quality Act

    The California Environmental Quality Act ((CEQA) (Public Resources 
Code section 21000 et seq.)) requires review of any project that is 
undertaken, funded, or permitted by the State of California or a local 
government agency. If significant effects are identified, the lead 
agency has the option of requiring mitigation through changes in the 
project or to decide that overriding considerations make mitigation 
infeasible (CEQA sec. 21002). In the latter case, projects may be 
approved that cause significant environmental damage, such as 
destruction of listed endangered species or their habitat. Protection 
of listed species through CEQA is, therefore, dependent on the 
discretion of the lead agency. The CEQA review process ensures that a 
full environmental review is undertaken prior to the permitting of any 
project within longfin smelt habitat.

California Marine Invasive Species Act

    The California Marine Invasive Species Act (AB 433) was passed in 
2003. This 2003 act requires ballast water management for all vessels 
that intend to discharge ballast water in California waters. All 
qualifying vessels coming from ports within the Pacific Coast region 
must conduct an exchange in waters at least 50 nautical mi offshore and 
200 m (656 ft) deep or retain all ballast water and associated 
sediments. To determine the effectiveness of the management provisions 
of this 2003 act, the legislation also requires State agencies to 
conduct a series of biological surveys to monitor new introductions to 
coastal and estuarine waters. These measures should further minimize 
the introduction of new invasive species into California's coastal 
waters that could be a threat to the longfin smelt. The Coastal 
Ecosystems Protection Act of 2006 deleted a sunset provision of the 
Marine Invasive Species Act, making the program permanent.

Porter-Cologne Water Quality Control Act

    The Porter-Cologne Water Quality Control Act (California Water Code 
13000 et seq.) is a California State law that 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 
that established water quality objectives for the Delta. This plan is 
currently 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 (USFWS 
2008, pp. 21-27). The various flow objectives and export restraints 
were designed, in part, to protect fisheries. These objectives include 
specific freshwater flow 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 were designed to protect agricultural, municipal, 
industrial, and fishery uses; they vary throughout the year and by the 
wetness of the year.
    In December 2010, the California Central Valley Regional Water 
Quality Control Board (Regional Board) adopted a new National Pollutant 
Discharge and Elimination System (NPDES) permit for the Sacramento 
Regional Wastewater Treatment Plant to address ammonia loading to the 
Sacramento River and the Delta. In January 2011, the Sacramento 
Regional County Sanitation District petitioned the Regional Board for a 
review of the permit, which may require a year or more. There is 
currently no TMDL in place for ammonia discharge into the Sacramento 
watershed. The EPA is currently updating freshwater ammonia criteria 
that will include new discharge limits on ammonia (EPA 2009, pp. 1-46). 
Ammonia has been shown to have negative effects on prey items that 
longfin smelt rely upon (see Factor E: Contaminants, below). This 
regulation does not adequately mitigate potential negative effects to 
longfin smelt from ammonia in the Bay-Delta.

Streambed Alteration

    In California, section 1600 et seq. of the California Fish and Game 
Code authorizes CDFG to regulate streambed alteration. The CDFG must be 
notified of and approve any work that substantially diverts, alters, or 
obstructs the natural flow or that substantially changes the bed, 
channel, or banks of any river, stream, or lake. If an existing fish or 
wildlife resource, including longfin smelt, may be substantially 
adversely

[[Page 19773]]

affected by a project, the project proponent must submit proposals to 
protect the species to the CDFG at least 90 days before the start of 
the project. However, these proposals are subject to agreement by the 
project proponent. If CDFG deems proposed measures to be inadequate, a 
third party arbitration may be initiated. However, projects that cause 
significant environmental damage such as destruction of species and 
their habitat including longfin smelt may be approved because the CDFG 
has no authority to deny requests for streambed alteration.

Oregon Environmental Regulations

    Oregon classifies longfin smelt as a native migratory fish under 
Oregon Administrative Rule (Division 412, 635-412-0005). Operators of 
artificial obstructions located in waters in which any native migratory 
fish are currently or were historically present must provide for fish 
passage requirements during installation, replacement, or abandonment 
of artificial obstructions (ODFW 2011, p. 1). This State law helps 
ensure passage of migratory longfin smelt between rearing and spawning 
habitat.

Washington Environmental Regulations

    Washington's State Environmental Policy Act (RCW 43.21C) provides a 
process similar to CEQA and is applicable to every State and local 
agency in Washington State. This law requires State and local 
governments to consider impacts to the environment and include public 
participation in project planning and decision making (Washington 
Division of Wildlife 2011, p. 1). Project proponents must submit a 
proposal for their project to the appropriate city, county, or State 
lead agency where the project is taking place. The lead agency then 
makes a determination of whether or not the project will have 
significantly adverse environmental impacts. The lead agency then may 
require the applicant to change the proposal to minimize environmental 
impacts or in rare cases may deny the application (Washington State 
Department of Ecology (WSDE) 2002, pp. 1-2).

Alaska Environmental Regulations

    The Anadromous Fish Act (AS 16.05.871-.901) requires that anyone 
desiring to alter a streambed or waterbody first obtain a permit from 
the Alaska Department of Fish and Game (ADFG). Regulated activities 
include construction, road crossings, gravel mining, water withdrawal, 
stream realignment, and bank stabilization. Although there are no 
minimization or mitigation components to this law, the ADFG 
commissioner has the ability to deny a permit if he or she finds the 
plans and specifications are insufficient for the proper protection of 
anadromous fish. The Fishway or Fish Passage Act (AS 15.05.841) 
requires that activities within or crossing a stream obtain permission 
from ADFG if they will impede the passage of resident or anadromous 
fish. This provides some degree of protection for longfin smelt, which 
is categorized as an anadromous fish in the State of Alaska.
Canadian Environmental Regulations
    The Canadian Environmental Assessment Act (S.C. 1992, c. 37) was 
passed by the Canadian Parliament in 1992. The Act requires Federal 
departments to conduct environmental assessments for proposals where 
the government is the proposer or the project involves Federal funding 
or permitting. The Canadian Environmental Protection Act of 1999 is 
intended to prevent pollution, protect the environment and human 
health, and contribute to promoting sustainable development. Canada has 
the Canadian Environmental Protection Act (CEPA), which is equivalent 
to the United States' NEPA. It was enacted to protect Canada's natural 
resources through pollution prevention and sustainable development. 
This provides some level of protection for longfin smelt from pollution 
and habitat degradation. The longfin smelt is not currently a protected 
species under the Species at Risk Act (SARA) of 2002 (S.C. 2002 c. 29; 
SARA). SARA is similar to the United States' Endangered Species Act. If 
the longfin smelt were determined by the Canadian government to need 
protection in the future, it could be listed under SARA.
Summary of Factor D
    We evaluate existing regulatory mechanisms that have an effect on 
threats that we have identified elsewhere in the threats analysis. We 
do not evaluate the lack of a regulatory mechanism that may address a 
particular threat if that regulatory mechanism does not exist. We find 
that the threats to the longfin smelt and its habitat on Federal, 
State, and private lands on a range-wide basis are minimal (Factors A, 
B, C and E). Existing federal regulatory mechanisms provide a degree of 
protection for longfin smelt from these threats. Therefore, we find 
that regulatory mechanisms provide adequate protections to longfin 
smelt and its habitat throughout its range.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    Other natural or manmade factors potentially affecting the 
continued existence of longfin smelt include entrainment losses from 
water diversions, introduced species, and contaminants.
Entrainment Losses
    The only information we found on entrainment losses of longfin 
smelt comes from the Bay-Delta population. Entrainment occurs when fish 
are drawn toward water diversions, where they are typically trapped or 
killed. In the Bay-Delta, water is diverted and fish potentially 
entrained at four major water export facilities within the Delta, two 
power plants, and numerous small water diversions throughout the Delta 
for agriculture and in Suisun Marsh for waterfowl habitat. In their 
2009 status review of longfin smelt, CDFG (2009, pp. 19-26) summarized 
entrainment losses at these water diversions.

Water Export Facilities

    The four State and Federal water export facilities (pumping 
stations) in the Delta are the State Water Project (SWP) facility in 
the south Delta, the Central Valley Project (CVP) in the south Delta, 
the Contra Costa facility in the south Delta, and the North Bay 
Aqueduct facility in the north Delta. The SWP and CVP facilities pump 
the majority of the water exported from the Delta. Average annual 
volumes of water exported from these facilities between 1995 and 2005 
were 3.60 km\3\ at the SWP facility, 3.10 km\3\ at the CVP facility, 
0.15 km\3\ at the Contra Costa facility, and 0.05 km\3\ at the North 
Bay Aqueduct facility (Sommer et al. 2007, p. 272). Depending on 
upstream flow through the Delta, operation of the SWP and CVP 
facilities often causes reverse flows in the river channels leading to 
them; longfin smelt that occupy these channels during certain times of 
the year may be entrained by these reverse flows. The SWP and CVP water 
export facilities are equipped with their own fish collection 
facilities that divert entrained fish into holding pens using louver-
bypass systems to protect them from being killed in the pumps. The fish 
collected at the facilities are referred to as ``salvaged,'' and are 
loaded onto tanker trucks and returned to the western Delta downstream 
(Aasen 2009, p. 36). The movement of fish can result in mortality due 
to overcrowding in the tanks, stress, moving procedures, or predation 
at locations where the fish are released. Salvage is an index of

[[Page 19774]]

entrainment, not an estimate, and is much smaller than total 
entrainment (Castillo et al. in review). Of spawning age fish (age-1 
and age-2), which contribute most to longfin smelt population dynamics 
in the Bay-Delta, the total number of longfin smelt salvaged at both 
pumps between 1993 and 2007 was 1,133 (CDFG 2009, Attachment 3, p. 2).
    Fish entering the intake channel of the CVP or the radial gates of 
the 31,000-acre Clifton Court Forebay reservoir (SWP) are considered 
entrained (Fujimura 2009, p. 5; CDFG 2009b, p. 2). Most longfin smelt 
that become entrained in Clifton Court Forebay are unable to escape 
(CDFG 2009b, p. 4). The number of fish entrained at the SWP and CVP 
facilities has never been determined directly, but entrainment losses 
have been estimated indirectly using data from research and monitoring 
efforts. The magnitude of entrainment of larval longfin smelt is 
unknown because only fish greater than 20 mm in length are salvaged at 
the two facilities (Baxter et al. 2008, p. 21). In years with low 
freshwater flows, approximately half of the longfin smelt larvae and 
early juveniles may remain for weeks within the Sacramento-San Joaquin 
Delta (Dege and Brown 2004), where model simulations indicate they are 
vulnerable to entrainment into State Water Project, Central Valley 
Project, and other diversions (Kimmerer and Nobriga 2008, CDFG 2009a, 
p. 8).
    Entrainment is no longer considered a major threat to longfin smelt 
in the Bay-Delta because of current regulations. Efforts to reduce 
delta smelt entrainment loss through the implementation of the 2008 
delta smelt biological opinion and the listing of longfin smelt under 
the CESA have likely reduced longfin smelt entrainment losses. The high 
rate of entrainment that occurred in 2002 that threatened the Bay Delta 
longfin smelt population is unlikely to recur, and would no longer be 
allowed under today's regulations because limits on longfin smelt take 
due to CESA regulations (see Factor D discussion, below) would trigger 
reductions in the magnitude of reverse flows.

Power Plants

    Two power plants located near the confluence of the Sacramento and 
San Joaquin Rivers, the Contra Costa Generating Station and the 
Pittsburg Generating Station, pose an entrainment risk to longfin 
smelt. Past entrainment losses of delta smelt at these two facilities 
were significant and considered a threat to delta smelt (75 FR 17671; 
April 7, 2010). Power plant operations have been substantially reduced 
since the late 1970s, when high entrainment and impingement were 
documented (CDFG 2009, p. 24); the power plants are now either kept 
offline or operating at very low levels, except as necessary to meet 
peak power needs. From 2007-2010, capacity utilization of these units 
averaged only 2.3 percent of maximum capacity. No longfin smelt were 
detected during impingement sampling conducted between May of 2010 and 
April of 2011 to monitor entrainment losses at the two power plants 
(Tenera Environmental 2011, entire). The company that owns the two 
power plants has committed to retiring one of the two power stations in 
2013 (Contra Costa Generating Station) and has made this commitment 
enforceable through amendments to its Clean Air Act Title V permit 
(Raifsnider 2011, pers. comm.).

Agricultural Diversions

    Water is diverted at numerous sites throughout the Bay-Delta for 
agricultural irrigation. Herren and Kawasaki (2001) reported over 2,200 
such water diversions within the Delta, but CDFG (2009, p. 25) notes 
that number may be high because Herren and Kawasaki (2001) did not 
accurately distinguish intake siphons and pumps from discharge pipes. 
CALFED's Ecosystem Restoration Program (ERP) includes a program to 
screen remaining unscreened small agricultural diversions in the Delta 
and the Sacramento and San Joaquin Rivers. The purpose of screening 
fish diversions is to prevent entrainment losses; however, very little 
information is available on the efficacy of screening these diversions 
(Moyle and Israel 2005, p. 20). Agricultural operations begin to divert 
water in March and April, and many longfin smelt have begun leaving the 
Delta by this time. Water diversions are primarily located on the edge 
of channels and along river banks. Longfin smelt are a pelagic fish 
species and tend to occupy the middle of the channel and the middle of 
the water column, where they are unlikely to be vulnerable to 
entrainment into these diversions.

Suisun Marsh Diversions

    There are 366 diversions in Suisun Marsh used to enhance waterfowl 
habitat (USFWS 2008, p. 172). Water is pumped at these diversions 
between October and May. Longfin larvae are abundant in the Marsh from 
February through April, while adults are abundant from October to 
February (Meng and Mattern 2001, p. 756; Rosenfield and Baxter 2007, p. 
1588). During a 2-year study sampling 2.3 million m\3\ (81.2 million 
ft\3\) of water entering intakes, entrainment was found to be low, 
capturing only 124 adult longfin and 160 larvae (Enos et al. 2007, p. 
16). Restrictions on pumping have been put in place to protect delta 
smelt and salmon. These restrictions likely also benefit longfin smelt.
Introduced Species
    Nonnative introduced species (both plants and animals) are common 
in many of the estuaries within the range of the longfin smelt. 
Introduced species can significantly alter food webs in aquatic 
ecosystems. Introduced animal species can adversely affect longfin 
smelt through predation (see Factor C discussion, above) or 
competition. Although introduced species are common within many of the 
estuaries occupied by longfin smelt, most of the information we found 
on effects of introduced species on longfin smelt was for the Bay-Delta 
population.

Bay-Delta Population

    The Bay-Delta is considered one of the most highly invaded 
estuaries in the world (Sommer et al. 2007, p. 272). Longfin smelt 
abundance in the Bay-Delta has remained low since the mid-1980s (see 
Abundance section, above). This long-term decline has been at least 
partially attributed to effects of the introduced overbite clam 
(Kimmerer 2002a, p. 47; Sommer et al. 2007, p. 274; Rosenfield and 
Baxter 2007, p. 1589; Baxter et al. 2010, pp. 61-62). The overbite clam 
has impacted zooplankton abundance and species composition by grazing 
on the phytoplankton that comprise part of the zooplankton's food base 
(Orsi and Mecum 1996, pp. 384-386) and by grazing on larval stages of 
certain zooplankton like Eurytemora affinis (no common name) (Kimmerer 
2002, p. 51; Sommer et al. 2007, pp. 274-276). Longfin smelt 
recruitment (replacement of individuals by the next generation) has 
steadily declined since 1987, even after adjusting for Delta freshwater 
flows (Nobriga 2010, slide 5). These data suggest that changes in the 
estuary's food web following introduction of the overbite clam may have 
had substantial and long-term impacts on longfin smelt population 
dynamics in the Bay-Delta.
    Numerous other invasive plant and animal species have been 
introduced into the Bay-Delta, and ecosystem disruptions will 
undoubtedly continue as new species are introduced. Sommer et al. 
(2007, p. 272) note that the quagga mussel (Dreissna bugensis) was 
discovered in southern California in late 2006, and that it could 
become

[[Page 19775]]

established in the Bay-Delta and cause substantial ecosystem 
disruption.

Other Populations

    The Eel River is undergoing a shift from native anadromous to 
resident introduced fish species. Of particular importance are the 
California roach (Hesperoleucus symmetricus) and the Sacramento 
pikeminnow (Ptychocheilus grandis) (Brown and Moyle 1997, p. 274). The 
Sacramento pikeminnow is known to cause shifts in spatial distribution 
of native species (Brown & Moyle 1991, p. 856). The Sacramento 
pikeminnow preys on native fishes, particularly emigrating juvenile 
salmonids (Moyle 2002, p. 156) and likely preys upon the longfin smelt 
when present.
    In Humboldt Bay, one study recorded 73 nonnative species, with 
another 13 species of uncertain status (Boyd 2002, pp. 89-91). Many of 
the nonnative species, most of which are invertebrates, have been 
present in the Bay for over 100 years, although some introductions have 
also occurred more recently (Boyd 2002, pp. 89-91). It is possible that 
the presence of some of these introduced species have resulted in 
changes to the food web resulting in changes to longfin smelt food 
availability in Humboldt Bay, as has occurred in the Bay-Delta. 
However, there are no data with which to evaluate this hypothesis. 
Commercial oyster culturing in Humboldt Bay began in 1955 (Barrett 
1963, p. 38). Oyster culture beds within the bay are located in areas 
that are favorable to eelgrass (Zostera marina), and the harvesting of 
oysters in these beds has resulted in a reduction of and damage to 
native eelgrass in Humboldt Bay (Trianni 1996, p. 4; Rummrill and 
Poulton 2004, p. 2). Longfin smelt are known to feed on fauna found on 
native eelgrass, and therefore loss of eelgrass communities could 
result in lower levels of longfin smelt prey, possibly resulting in 
decreased longfin smelt survival.
    Over 100 species of nonnative, invasive aquatic plants and animals 
have been documented in the Yaquina Bay estuary in Oregon (Oregon State 
University 2011, p. 1). One of the plants that has become established 
is Zostera japonica, a seagrass that was introduced to Yaquina Bay as 
live packing material for Japanese oysters. It poses a competitive 
threat to the native eelgrass (Brown et al. 2007, p. 9), and longfin 
smelt are known to feed on fauna found on native eelgrass (Phillips 
1984, pp. 1-85). Invasive fish species in Yaquina Bay include American 
shad (Alosa sapidissima), common carp (Cyprinus carpio), bass 
(Micropterus spp.), and walleye (Sander vitreum).
    Numerous nonnative, invasive plant and animal species have 
established populations within the Columbia River estuary. Nonnative, 
invasive plants and fish are the largest taxa to inhabit the estuary, 
followed by mollusks and crustaceans (Sanderson et al. 2009, pp. 245-
256). American shad was introduced in the Columbia River soon after 
1871 (Petersen et al. 2011, pp. 1-42). The spawning adult shad 
population in the Columbia River is more than 5,000,000 individuals, 
the largest anywhere (Petersen et al. 2011, pp. 1-42). Shad may have 
large, negative effects on Columbia River ecosystems, as adult and 
juvenile shad prey on zooplankton, thereby reducing the availability of 
prey for other fish species (Sanderson et al. 2009, pp. 245-256). Also 
present in the lower Columbia River are channel catfish (Ictalurus 
punctatus), striped bass, smallmouth bass (Microperterus dolomieui), 
largemouth bass (Micropterus salmoides), and walleye (Sander vitreus). 
These nonnative fishes are aggressive predators and have likely 
substantially altered food webs in the Columbia River estuary 
(Sanderson et al. 2009, pp. 245-256). The Eurasian water milfoil 
(Myriophyllum spicatum) may have been introduced into the lower 
Columbia River by ballast water from European ships in the 1800s (Aiken 
et al. 1979, pp. 201-215). It forms dense mats of vegetation and 
results in reduced dissolved oxygen concentrations as the plants 
decompose, altering aquatic ecosystem chemistry and function (Cronin et 
al. 2006, pp. 37-43; Unmuth et al. 2000, pp. 497-503), which could 
potentially restrict longfin smelt distribution in the region.
    Hundreds of invasive plants and animals have found their way into 
Puget Sound through importation of soils, plants, fruits, and seeds; 
through boat hulls and ship ballast water discharge; and through 
intentional human releases. Invasive tunicate species that reproduce 
quickly and cover docks and boat hulls are also present in the sound 
(Puget Sound Partnership 2008b, p. 26).
Contaminants

Bay-Delta

    Similar to other potential threats to longfin smelt, most of the 
information available is for the Bay-Delta. In 2009, over 15 million 
pounds of pesticides were applied within the five-county Bay-Delta area 
(California Department of Pesticide Regulation 2011, p. 1). 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 agricultural drainage water from 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). Toxicity studies specific to longfin smelt 
are not available, but data do exist for other fish species such as the 
delta smelt, a related species. Longfin smelt could be similarly 
affected by contaminants as some life stages utilize similar habitat 
and prey resources, and longfin smelt have a physiology similar to 
delta smelt. 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.
    Bay-Delta waters are listed as impaired for several legacy and 
currently used pesticides under the Clean Water Act section 303(d) 
(California Department of Pesticide Regulation 2011, p. 1). 
Concentrations of dissolved pesticides vary in the Delta both 
temporally and spatially (Kuivila 2000, p. 1). Several areas of the 
Delta, particularly the San Joaquin River and its tributaries, are 
impaired due to elevated levels of diazinon and chlorpyrifos, which are 
toxic at low concentrations to some aquatic organisms (MacCoy et al. 
1995, pp. 21-30). Several studies have demonstrated the acute and 
chronic toxicity of two common dormant-spray insecticides, diazinon and 
esfenvalerate, in fish species (Barry et al. 1995, p. 273; Goodman et 
al. 1979, p. 479; Holdway et al.; 1994, p. 169; Scholz et al. 2000, p. 
1911; Tanner and Knuth 1996, p. 244).
    Pyrethroid pesticides are of particular concern because of their 
widespread use, and their tendency to be genotoxic (DNA damaging) to 
fishes at low doses (in the range of micrograms per liter) (Campana et 
al. 1999, p. 159). The pyrethroid esfenvalerate is associated with 
delayed spawning and reduced larval survival of bluegill sunfish 
(Lepomis macrochirus) (Tanner and Knuth 1996, pp. 246-250) and 
increased susceptibility of juvenile Chinook salmon (Oncorhynchus 
tshawytscha) to disease (Clifford et al. 2005, pp. 1770-1771). In 
addition, synthetic pyrethroids may interfere with nerve cell function, 
which could eventually result in paralysis (Bradbury and Coats 1989, 
pp.

[[Page 19776]]

377-378; Shafer and Meyer 2004, pp. 304-305).
    Weston and Lydy (2010, p. 1835) found the largest source of 
pyrethroids flowing into the Delta to be coming from the Sacramento 
Regional Water Treatment Plant (SRWTP), where only secondary treatment 
occurs. Their data not only indicate the presence of these 
contaminants, but the concentrations found exceeded acute toxicity 
thresholds for the amphipod Hyalella azteca. This is of substantial 
concern because the use of insecticides in the urban environment had 
not before been considered the primary source of insecticides flowing 
into the Delta. Furthermore, this was not the case for the Stockton 
Waste Water Treatment facility, where tertiary treatment occurs, 
suggesting that the tertiary treatment that occurs at the Stockton 
facility could minimize or eliminate toxic effluent being dispersed 
from wastewater facilities (Baxter et.al. 2010, p. 33).
    Several studies were initiated in 2005 to address the possible role 
of contaminants and disease in the declines of Bay-Delta fish and other 
aquatic species. The primary study consists of twice-monthly monitoring 
of ambient water toxicity at 15 sites in the Bay-Delta and Suisun Bay 
(Baxter et al. 2010, pp. 16, 17, 30). Significant mortality of 
amphipods was observed in 5.6 percent of samples collected in 2006-2007 
and 0.5 percent of samples collected in 2008-2009. Werner et al. 
(2010b, p. 3) found that larval delta smelt were between 1.8 and 11 
times more sensitive than fathead minnows (Pimephales promelas) to 
copper, ammonia, and all insecticides except permethrin. Aquatic 
insects in which the longfin smelt relies upon for food have been shown 
to be sensitive to ammonia. H. azteca was the most sensitive to all 
pyrethroids tested, while E. affinis and C. Dubia were the most 
sensitive to ammonia (Werner et al. 2010b, pp. 18, 23). Pyrethroids are 
of particular interest because use of these insecticides has increased 
within the Bay-Delta watershed as use of organophosphate insecticides 
has declined. Longfin smelt are probably most vulnerable to the effects 
of toxic substances during the winter and spring, when their early life 
stages occur in the Delta and Suisun and San Pablo Bays, where they are 
closer to point and non-point inputs of contaminants from runoff.
    The largest source of ammonia entering the Delta ecosystem is the 
Sacramento Regional Wastewater Treatment Plant (SRWTP), which accounts 
for 90 percent of the total ammonia load released into the Delta. 
Ammonia is un-ionized and has the chemical formula NH3. 
Ammonium is ionized and has the formula NH4\+\. The major 
factors determining the proportion of ammonia or ammonium in water are 
water pH and temperature. This is important, as NH3 ammonia 
is the form that can be directly toxic to aquatic organisms, and 
NH4\+\ ammonium is the form documented to interfere with 
uptake of nitrates by phytoplankton (Dugdale et al. 2007, p. 17; Jassby 
2008, p. 3).
    Effects of elevated ammonia levels on fish range from irritation of 
skin, gills, and eyes to reduced swimming ability and mortality (Wicks 
et al. 2002, p. 67). Delta smelt have been shown to be directly 
sensitive to ammonia at the larval and juvenile stages (Werner et al. 
2008, pp. 85-88). Longfin smelt could similarly be affected by ammonia 
as they utilize similar habitat and prey resources and have a 
physiology similar to delta smelt. Ammonia also can be toxic to several 
species of copepods important to larval and juvenile fishes (Werner et 
al. 2010, pp. 78-79; Teh et al. 2011, pp. 25-27).
    In addition to direct effects on fish, ammonia in the form of 
ammonium has been shown to alter the food web by adversely impacting 
phytoplankton and zooplankton dynamics in the estuary ecosystem. 
Historical data show that decreases in Suisun Bay phytoplankton biomass 
coincide with increased ammonia discharge by the SRWTP (Parker et al. 
2004, p. 7; Dugdale et al. 2011, p. 1). Phytoplankton preferentially 
take up ammonium over nitrate when it is present in the water. Ammonium 
is insufficient to provide for growth in phytoplankton, and uptake of 
ammonium to the exclusion of nitrate results in decreases in 
phytoplankton biomass (Dugdale et al. 2007, p. 23). Therefore, ammonium 
impairs primary productivity by reducing nitrate uptake in 
phytoplankton. Ammonium's negative effect on the food web has been 
documented in the longfin smelt rearing areas of San Francisco Bay and 
Suisun Bay (Dugdale et al. 2007, pp. 26-28). Decreased primary 
productivity results in less food available to longfin smelt and other 
fish in these bays.
    Several streams that flow into the Bay-Delta are listed as impaired 
because of high concentrations of metals such as cadmium, copper, lead, 
and zinc. Metal concentrations have been found to be toxic to fish in 
the upper Sacramento River near and downstream from Redding (Alpers et 
al. 2000a, p. 4; 2000b, p. 5). Elevated levels of metals such as copper 
in streambed sediment continue to occur in the upper Sacramento River 
Basin downstream from Redding (MacCoy and Domagalski 1999, p. 35). 
Copper and other metals may affect aquatic organisms in upper portions 
of contributing watersheds of the Delta. Mercury and its bioavailable 
form (methylmercury) are distributed throughout the estuary, although 
unevenly. Mercury has been known to bioaccumulate and cause 
neurological effects in some fish species, but it has not been 
associated with the Pelagic Organism Decline (Baxter et al. 2010, p. 
28). No specific information is available on the effects of mercury 
exposures to longfin smelt. Selenium, introduced into the estuary 
primarily from agricultural irrigation runoff via the San Joaquin River 
drainage and oil refineries, has been implicated in toxic and 
reproductive effects in fish and wildlife (Baxter 2010 et al., p. 28; 
Linville et al. 2002, p. 52). Selenium exposure has been shown to have 
effects on some benthic foraging species; however there is no evidence 
that selenium exposure is contributing to the decline of longfin smelt 
or other pelagic species in the Bay-Delta (Baxter et al. 2010, p. 28).
    Large blooms of toxic Microcystis aeruginosa (blue-green algae) 
were first documented in the Bay-Delta during the summer of 1999 
(Lehman et al. 2005, p. 87). M. aeruginosa forms large colonies 
throughout most of the Delta and increasingly down into eastern Suisun 
Bay (Lehman et al. 2005, p. 92). Blooms typically occur when water 
temperatures are above 20 [deg]C (68[emsp14][deg]F) (Lehman et al. 
2005, p. 87). Preliminary evidence indicates that the toxins produced 
by local blooms are not directly toxic to fishes at current 
concentrations (Baxter et al. 2010, p. 10). However, the copepods that 
the related delta smelt eat are particularly susceptible to those 
toxins (Ger 2008, pp. 12, 13). Microcystis blooms may also decrease 
dissolved oxygen to lethal levels for fish (Lehman et al. 2005, p. 97). 
Blooms typically occur between late spring and early fall when the 
majority of longfin smelt occur farther downstream, so effects are 
expected to be minimal.

Other Populations

    As in the Bay-Delta, pesticide and metals contamination occurs in 
Yaquina Bay, the Columbia River, and the Fraser River (Johnson et al. 
2007, p. 1; Lower Columbia River Estuary Partnership (LCREP) 2011, p. 
1; Blomquist, 2005, p. 8). Ammonia contamination occurs in the Klamath 
River (Oregon Department of Environmental Quality (ODEQ) 2011, p. 1) 
and Cook Inlet (ADEC 2011a, p. 1), and toxic algal blooms occur in the 
Klamath River (California State Water

[[Page 19777]]

Resources Control Board (CSWRCB) 2010, p. 1) and Yaquina Bay (ODEQ 
Water Quality Assessment Online Database 2011).
    Industrial contaminants such as dioxins, polychlorinated biphenyls 
(PCBs), and polyaromatic hydrocarbons (PAHs) occur in Humboldt Bay 
(NCRWQCB 2010 pp. 3-4), Yaquina Bay (Johnson et al. 2007, p. 1), the 
Columbia River (LCREP 2011, p. 1), Puget Sound (Puget Sound Partnership 
2008b, p. 21), and the Fraser River (British Columbia Ministry of 
Environment 2001, pp. 5-6; Blomquist, 2005, p. 8). Suspended sediment 
is a contaminant in the Eel River (Downie 2010, p. 10), Humboldt Bay 
(NCRWQCB 2010 pp. 3-4), Yaquina Bay (ODEQ Water Quality Assessment 
Online Database 2011), and Puget Sound (WA Department Ecology 2008, p. 
1). Nutrient enrichment and low levels of dissolved oxygen occur in the 
Klamath River (CSWRCB 2010, p.1), Yaquina Bay (Bricker et al. 1999, pp. 
1-71), and Fraser River (British Columbia Ministry of Environment 2001, 
pp. 5-6). Fecal coliform and other forms of bacteria contaminate 
Yaquina Bay, Puget Sound, the Fraser River, and Cook Inlet (Brown et al 
2007, pp. 16-17, WA Department Ecology 2008, p. 1, Blomquist, 2005, p. 
8, ADEC 2011a, p. 1).
    Oregon and Washington States have listed multiple reaches of the 
Lower Columbia River on their Federal Clean Water Act 303(d) lists, due 
to total dissolved gas levels exceeding State water quality standards. 
This occurs at several dams on these rivers where water flowing over 
the spillway of a dam creates air bubbles. When these are carried to 
depth in the dam's stilling basin, the higher hydrostatic pressure 
forces air from the bubbles into solution. The result is water 
supersaturated with dissolved nitrogen, oxygen, and the other 
constituents of air (ODEQ 2002, p. ix). High total dissolved gas levels 
can cause gas bubble trauma in fish, which can result in injury or 
mortality to fish species (ODEQ 2002, pp. 1-150).

Summary of Contaminants

    Most fish including longfin smelt can be sensitive to adverse 
effects from contaminants in their larval or juvenile stages. Adverse 
effects to longfin smelt would be more likely to occur where sources of 
contaminants occur in close proximity to spawning and rearing habitats 
(brackish or fresh waters). Laboratory studies have shown certain 
contaminants to potentially have adverse effects on individual delta 
smelt, a related species. Field studies have shown that the 
contaminants of concern are elevated in some of the estuaries 
throughout the species' range, including the Bay-Delta.
Summary of Factor E
    We evaluated whether entrainment losses, introduced species, and 
contaminants threaten the longfin smelt throughout its range. Longfin 
smelt is broadly distributed across a wide variety of estuaries from 
central California to Alaska, and there is no monitoring data 
documenting a population decline other than the population decline in 
the Bay-Delta.
    Because the Bay-Delta system is one of the largest man made water 
systems in the world, it would be impractical to compare diversions and 
alterations in other estuaries to diversions and alterations in the 
Bay-Delta. The effects of entrainment in the Bay-Delta are unique to 
the estuary because of the large water diversions. Because diversions 
in other estuaries are much smaller, we expect that the effects from 
these diversions would be minimal in relation to the effects in the 
Bay-Delta. We have no information to show that entrainment is a threat 
to longfin smelt throughout its range.
    Introduced species and contaminants are threats to the Bay-Delta 
long smelt population, but there is no information indicating that they 
are threats to the species in other parts of its range. Although 
invasive species are present in other estuaries, none have been 
documented to be having an effect on the longfin smelt food supply like 
the overbite clam has had. Similarly, although contaminants are present 
in other estuaries where the longfin smelt resides, none have been 
shown to have effects on the longfin smelt food supply like ammonia in 
the Bay-Delta has been shown to have.

Finding

    As required by the Act, we considered the five factors in assessing 
whether the longfin smelt is endangered or threatened throughout all of 
its range. We have carefully examined the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by the longfin smelt. We reviewed the petition, 
information available in our files, other available published and 
unpublished information, and we consulted with recognized longfin 
experts and other Federal and State agencies.
    Little information is available on longfin smelt populations other 
than the Bay-Delta and Lake Washington populations. Smelt caught along 
the Pacific Coast are rarely identified to species. Therefore, 
information on longfin smelt distribution and abundance outside the 
Bay-Delta is limited. Although monitoring data indicate a significant 
decline in the abundance of longfin smelt in the Bay-Delta, population 
monitoring for other populations is not available. Estuaries are 
complex ecosystems, and different estuaries within the longfin smelt's 
range vary greatly in their environmental characteristics and in how 
they are managed. For example, in no estuary within the range of the 
longfin smelt, other than the Bay-Delta, are large volumes (up to 35 
percent of freshwater inflow between February and June, and up to 65 
percent of inflow between July and January) of freshwater pumped 
directly out of the estuary.
    Under Factor A, channel disturbances may have localized impacts to 
longfin smelt habitat suitability. However, we conclude that these 
activities are not significant threats to longfin smelt throughout its 
range. Climate change will likely affect longfin smelt in multiple 
ways, but longfin smelt are able to move between a wide range of 
aquatic environments that vary greatly in water temperature and 
salinity, and these behavioral and physiological characteristics of the 
species may help it adapt to the effects of climate change. We conclude 
that the best available information does not indicate that climate 
change threatens the continued existence of longfin smelt across its 
range. We conclude that reduced freshwater flows are a threat to the 
Bay-Delta longfin smelt population, but not to the species in the rest 
of its range. The Bay-Delta is unique among estuaries occupied by 
longfin smelt because large volumes of freshwater are exported away 
from the estuary on an annual basis. In addition, it is difficult to 
extrapolate from the Bay-Delta to other estuaries because the effects 
of water management in the Bay-Delta are likely unique to the physical, 
geologic, and hydrologic environment of that estuary. We conclude that 
the best scientific information available indicates that continued 
existence of the longfin smelt is not threatened in any part of its 
range outside of the Bay-Delta by the present or threatened 
destruction, modification, or curtailment of its habitat or range now 
or in the foreseeable future
    Under Factor B, we evaluated potential threats from recreational 
and commercial fishing and from monitoring surveys on longfin smelt. 
Longfin smelt are protected from intentional take in California because 
the species is listed as threatened under CESA. Efforts have been made 
to reduce mortality of longfin smelt as bycatch in a bay shrimp trawl 
commercial fishery and in

[[Page 19778]]

monitoring surveys in the Bay-Delta. Longfin smelt is caught as part of 
recreational or commercial fisheries in Oregon, Washington, British 
Columbia, and Alaska, but numbers of fish caught are considered low, 
and we found no evidence that fisheries harvest was causing population 
declines of longfin smelt. We conclude that overutilization is not a 
significant current or future threat to longfin smelt across its range.
    Under Factor C, we evaluated potential threats from disease and 
predation. We found no evidence of rangewide threats to the continued 
existence of the species due to disease or predation, now or in the 
foreseeable future.
    Under Factor D, we conclude that several Federal and State laws and 
regulations provide varying levels of protection for the longfin smelt 
throughout its range. Several of these regulatory mechanisms promote 
protection of longfin smelt habitat and provide tools to implement 
these habitat protections. We conclude that longfin smelt is not 
threatened throughout its range by inadequate regulatory mechanisms, 
now or in the foreseeable future.
    Under Factor E, we evaluated potential threats due to entrainment 
losses from water diversions, introduced species, and contaminants. 
Information indicates that introduced species are a threat to the Bay-
Delta longfin smelt population and that ammonium may constitute a 
threat to the Bay-Delta longfin smelt population, but information does 
not indicate that entrainment losses, introduced species, or 
contaminants are threatening longfin smelt populations in other parts 
of its range, now or in the foreseeable future.
    Based upon our review of the best available scientific and 
commercial information pertaining to the five factors, we find that the 
threats are not of sufficient imminence, intensity, or magnitude to 
indicate that the longfin smelt is in danger of extinction 
(endangered), or likely to become endangered within the foreseeable 
future (threatened), throughout all of its range. Therefore, we find 
that listing the longfin smelt as an endangered or threatened species 
throughout all of its range is not warranted at this time.

Distinct Vertebrate Population Segment

    Having found that the best available information does not indicate 
that the longfin smelt warrants listing rangewide, we now assess 
whether any distinct population segments of longfin smelt meet the 
definition of endangered or are likely to become endangered in the 
foreseeable future (threatened). Under the Services' (joint policy of 
the Fish and Wildlife Service and National Marine Fisheries Service) 
DPS policy (61 FR 4722; February 7, 1996), three elements are 
considered in the decision concerning the establishment and 
classification of a possible DPS. These are applied similarly for 
additions to or removal from the Federal List of Endangered and 
Threatened Wildlife. These elements include: (1) The discreteness of a 
population in relation to the remainder of the species to which it 
belongs; (2) the significance of the population segment to the species 
to which it belongs; and (3) the population segment's conservation 
status in relation to the Act's standards for listing, delisting, or 
reclassification (i.e., is the population segment endangered or 
threatened). We have identified one population that potentially meets 
all three elements of the 1996 DPS policy--the population that occurs 
in the Bay-Delta estuary. During the rangewide five-factor analysis, 
significant threats were identified only for the Bay-Delta population. 
Therefore, we determined that only the Bay-Delta population potentially 
meets the third element of the DPS.

Discreteness

    Under the DPS policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either one of the following 
conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
Marked Separation From Other Populations as a Consequence of Physical, 
Physiological, Ecological, or Behavioral Factors
    The limited swimming capabilities of the longfin smelt, existing 
ocean current patterns, and the great distances between the Bay-Delta 
and other known breeding populations make it unlikely that regular 
interchange occurs between the Bay-Delta and other longfin smelt 
breeding populations. Longfin smelt is a relatively short-lived species 
that completes its 2- to 3-year life cycle moving between freshwater 
spawning habitat in the Delta and brackish water rearing habitat 
downstream (seaward) in the estuary within Suisun Bay, San Pablo Bay, 
and central San Francisco Bay. At least a portion of the population 
also migrates into the near-coastal waters of the Gulf of Farallones 
(Rosenfield and Baxter 2007, p. 1590). Although its swimming 
capabilities have not been studied, it is a small fish believed to have 
a limited swimming capacity (Moyle 2010, pp. 5-6). How longfin smelt 
return to the Bay-Delta from the Gulf of Farallones is not known 
(Rosenfield and Baxter 2007, p.1590).
    The Bay-Delta population is the southernmost population of longfin 
smelt and is separated from other longfin smelt breeding populations by 
56 km (35 mi). The nearest location to the Bay-Delta where longfin 
smelt have been caught is the Russian River, located north of the Bay-
Delta; however, little information is available for this population 
(see Distribution section, above). Due to limited freshwater flow into 
the estuary and interannual variation in freshwater flow, it is 
unlikely that the estuary provides sufficient potential spawning and 
rearing habitat to support a regularly breeding longfin smelt 
population (Moyle 2010, p. 4).
    The Eel River and Humboldt Bay are the next nearest locations where 
longfin smelt are known to occur, and they are located much farther to 
the north--Eel River is located 394 km (245 mi) north of the Bay-Delta, 
and Humboldt Bay is located 420 km (260 mi) north of the Bay-Delta. 
Moyle (2010, p. 4) considered Humboldt Bay to be the only other estuary 
in California potentially capable of supporting longfin smelt in most 
years.
    In our April 9, 2009, longfin smelt 12-month finding (74 FR 16169), 
we concluded that the Bay-Delta population was not markedly separated 
from other populations and, therefore, did not meet the discreteness 
element of the 1996 DPS policy. This conclusion was based in part on 
the assumption that ocean currents likely facilitated dispersal of 
anadromous longfin smelt to and from the Bay-Delta to other estuaries 
in numbers that could readily sustain the Bay-Delta population group if 
it was to be extirpated. Since 2009, we have obtained information 
relevant to assumptions that we made in the 2009 12-month finding. 
Additional clarifying information comes in part from a declaration 
submitted to the U.S. District Court for the Northern District of 
California on June 29, 2010, by Dr. Peter Moyle, Professor of Fisheries 
Biology at the University of California at Davis (Moyle 2010, pp. 1-8). 
Moyle (2010, pp. 5-6) notes that he believes that we overestimated the 
swimming

[[Page 19779]]

capacity of longfin smelt in our 2009 12-month finding. Moyle (2010, p. 
8) states that longfin smelt that migrate out of and back into the Bay-
Delta estuary may primarily be feeding on the rich planktonic food 
supply in the Gulf of Farallones, and that this migration between the 
Bay-Delta and near coastal waters of the Gulf of Farallones does not 
indicate that longfin smelt are necessarily dispersing long distances 
to other estuaries to the north.
    At the time of our last finding, we did not have information 
available assessing the ability of longfin smelt to disperse northward 
from the Bay-Delta or southward to the Bay-Delta using currents in the 
Pacific Ocean. Since the time of our previous finding (74 FR 16169; 
April 9, 2009), we have reviewed additional information on ocean 
currents in nearshore waters and over the continental shelf from 
approximately the Gulf of Farallones north to Coos Bay. We have 
evaluated the potential for longfin smelt to disperse northward from 
the Bay-Delta or southward to the Bay-Delta. On October 28, 2011, we 
convened a panel of experts to evaluate the potential of longfin smelt 
dispersal via ocean currents. Oceanographers on the panel were tasked 
with answering a series of questions on how ocean currents would affect 
longfin smelt potentially dispersing into or out of the Bay-Delta. Much 
of the following analysis was derived from that panel discussion. Our 
analysis relies upon ocean current information as it relates to what is 
known of longfin smelt biology and life history from the Bay-Delta 
population.
    Table 2 overlays longfin smelt life history with general ocean 
current patterns in central and northern California. However, the 
California Current System exhibits a high degree of seasonality as well 
as weekly variability. Currents are highly variable in fall and winter 
but tend to be predominately northward. Surface currents are northward 
during the storm season from December to March and transition to 
southward in March or April. Offshore of central California the surface 
currents remain generally southward during summer. However, despite the 
predominant southward surface current, northward currents are common at 
depths around 60 to 200 m along the continental slope at all times of 
the year. This deeper current is known as the California Undercurrent 
(Paduan 2011, pers. comm.)
[GRAPHIC] [TIFF OMITTED] TP02AP12.002

    Eddies (clockwise water circulation areas) exist at various points 
between the Bay-Delta and Humboldt Bay at landmarks such as Point Arena 
and Cape Mendocino. These eddies vary in their distance from shore 
between 10 to 100 km (6 to 62 mi) (Padaun 2011, pers. comm.). During 
the summer upwelling season, northerly winds drive a southward offshore 
flow of near-surface waters (Dever et al. 2006, p. 2109) and also set 
up a strong current over the continental shelf that is deflected 
offshore at capes such as Cape Mendocino, Point Arena, and Point Reyes 
(Magnell et al. 1990, p. 7; Largier 2004, p. 107; Halle and Largier 
2011, pp. 1-24). Several studies have used drifters (flotation devices 
tracked by satellites) and pseudo-drifters (computer-simulated 
satellite-tracked flotation devices) to evaluate currents in the 
California region of the Pacific Ocean. These studies indicate that the

[[Page 19780]]

circulation patterns located off Point Arena and Cape Mendocino limit 
dispersal (particularly southward) of flotation devices in the region 
(Sotka et al. 2004, p. 2150; Drake et al. 2011, pp. 1-51; Halle and 
Largier 2011, posters). This limitation is important because Cape 
Mendocino and Point Arena are between the Bay-Delta and the nearest 
likely self-sustaining population of longfin smelt in Humboldt Bay.
    Longfin smelt are an euryhaline species, of which an unknown 
fraction of the population exhibits anadromy (Moyle 2002, p. 236; 
Rosenfield and Baxter 2007 p. 1578). Based on their small size and 
limited swimming ability, we expect that longfin smelt would be largely 
dependent on ocean currents to travel the large distance between the 
Bay-Delta and the Humboldt Bay. During wet years, newly spawned longfin 
smelt larvae may be flushed out to the ocean between December and 
March. It is unlikely that longfin smelt larvae can survive ocean 
transport because larvae are not known to tolerate salinities greater 
than 8 ppt (Baxter 2011b, pers. comm.), and surface salinities less 
than 8 ppt do not exist consistently in the ocean (Bograd and Paduan 
2011, pers. comm.).
    A portion of the longfin smelt that spawn in the Bay-Delta make 
their way to the ocean once they are able to tolerate full marine 
salinities, sometime during the late spring or summer of their first 
year of life (age-0) (City of San Francisco and CH2MHill 1984 and 1985, 
entire), and may remain there for 18 months or longer before returning 
to the Bay-Delta to spawn (Baxter 2011c, pers. comm.). A larger portion 
of longfin smelt enter the coastal ocean during their second year of 
life (age-1) (City of San Francisco and CH2MHill 1984 and 1985, entire) 
and remain there for 3 to 7 months until they re-enter the Bay-Delta to 
spawn in early winter (Rosenfield and Baxter 2007, p 1590; Baxter 
2011c, pers. comm.). Most of these age-1 longfin smelt move to coastal 
waters in July and August, possibly to escape warm water temperatures 
or to obtain food (Moyle 2010, p. 8; Rosenfield and Baxter 2007, p. 
1290). Some longfin smelt may live to 3 years of age and may remain in 
the coastal ocean until they are 3 years old. However, no 3-year old 
longfin smelt have been observed in the coastal ocean (Baxter 2011d, 
pers. comm.; Service 2011, unpublished data).
    It is possible that some of these juvenile or adult longfin smelt 
could make their way into the Russian River, Eel River, or Humboldt Bay 
and supplement or sustain those populations by utilizing northward 
ocean currents (Padaun 2011, pers. comm.; Service 2011b, pp. 1-4), but 
there is no documentation of such long-distance coastal movements. The 
northward ocean currents are strongest and most reliable in winter, 
when satellite-tracked particles move between the Bay-Delta and 
Humboldt Bay in as little as 2 months (Service 2011, p. 3).
    Opportunities for longfin smelt dispersal utilizing ocean currents 
from northern estuaries to the Bay-Delta are more limited. Studies have 
revealed that currents near Cape Mendocino and Point arena would carry 
small objects to the west away from the coast (Padaun 2011b, pers. 
comm.; Bograd 2011, pers. comm.). It is possible that longfin smelt in 
nearshore waters could travel south past these eddies if they stay 
close enough to shore. It is even possible that some longfin smelt may 
be moved closer to shore by the eddies (Bograd 2011, pers. comm.; 
Paduan 2011, pers. comm.). However, any longfin smelt that do travel 
south past the Cape Mendocino and Point Arena escarpments would be 
unlikely to re-enter the Bay-Delta. These offshore ocean currents could 
displace any longfin smelt potentially moving south more than 100 km 
(62 mi) offshore of the Bay-Delta (Paduan 2011a, pers. comm.). Pathways 
that transport objects close to shore would be expected to be rare, if 
they exist at all (Padaun 2011b, pers. comm.; Bograd 2011, pers. 
comm.). So while we considered whether ocean currents may transport or 
facilitate movement of longfin smelt from northern estuaries to the 
Bay-Delta estuary, there is no information showing that such dispersal 
movement occurs.
    Using the best scientific data available, we compared longfin smelt 
biology and life history with the latest available ocean current data 
provided by oceanographers. We conclude that longfin smelt in the Bay-
Delta population do not regularly breed or interact with longfin smelt 
in other breeding populations to the north and are therefore markedly 
separated from other longfin smelt populations.
    Under the 1996 DPS policy, the discreteness standard does not 
require absolute separation of a DPS from other members of its species, 
nor does the standard require absolute reproductive isolation (61 FR 
4722). Because of the great distances between the Bay-Delta and known 
breeding populations to the north, the small size of the longfin smelt, 
and the low likelihood that ocean currents could facilitate longfin 
smelt movements between widely separated populations, we conclude that 
the Bay-Delta population is markedly separated from other longfin smelt 
populations and therefore discreet.
Quantitative Measures of Genetic or Morphological Discontinuity
    The 1996 DPS policy states that quantitative measures of genetic or 
morphological discontinuity may provide evidence of marked separation 
and discreteness. Stanley et al. (1995, p. 395) compared allozyme 
variation between longfin smelt from the Bay-Delta population and the 
Lake Washington population using electrophoresis. They found that 
individuals from the populations differed significantly in allele 
(portions of a chromosome that code for the same trait) frequencies at 
several loci (gene locations). However, the authors also stated that 
the overall genetic dissimilarity was within the range of other 
conspecific (of the same species) fish species, and concluded that 
longfin smelt from Lake Washington and the Bay-Delta are conspecific, 
despite the large geographic separation (Stanley et al. 1995, p. 395). 
This study provided evidence that the Bay-Delta population of longfin 
smelt differed in genetic characteristics from the Lake Washington 
population, but did not compare other populations rangewide to the Bay-
Delta population. More recently, Israel et al. (2011, pp. 1-10) 
presented preliminary results from an ongoing study, but these results 
were inconclusive in providing evidence of whether the Bay-Delta 
population is markedly separated from other longfin smelt populations 
(Cope 2011, pers. comm.; Service 2011a, pp. 1-3).
    We conclude that the limited quantitative genetic and morphological 
information available does not provide additional evidence of marked 
separation of the Bay-Delta longfin smelt population beyond the 
evidence presented above under Marked Separation from Other Populations 
as a Consequence of Physical, Physiological, Ecological, or Behavioral 
Factors.
Delimited by International Governmental Boundaries Within Which 
Differences in Control of Exploitation, Management of Habitat, 
Conservation Status, or Regulatory Mechanisms Exist That Are 
Significant in Light of Section 4(a)(1)(D) of the Act
    The Bay-Delta population of longfin smelt is not delimited by an 
international boundary. Therefore, we conclude that it does not meet 
the international governmental boundaries criterion for discreteness.

[[Page 19781]]

Conclusion for Discreteness
    Because of its limited swimming capabilities and because of the 
great distances between the Bay-Delta and known breeding populations to 
the north, we conclude that the Bay-Delta population is markedly 
separated from other longfin smelt populations, and thus meets the 
discreteness element of the 1996 DPS policy. The best available 
information indicates that longfin smelt from the Bay-Delta population 
complete their life cycle moving between freshwater, brackish water, 
and saltwater portions of the estuary and nearby coastal ocean waters 
in the Gulf of Farallones. The nearest known breeding population of 
longfin smelt is Humboldt Bay, 420 km (260 mi) north of the Bay-Delta. 
As a result, potential interchange between the Bay-Delta population and 
other longfin smelt breeding populations is limited. Although the best 
scientific information suggests that potential movement of longfin 
smelt northward from the Bay-Delta would be facilitated by ocean 
currents, potential movement from more northern estuaries south to the 
Bay-Delta would be more difficult and unlikely because of ocean 
currents. Based on our review of the best available scientific and 
commercial information available, we conclude that the Bay-Delta 
population of longfin smelt is markedly separated from other longfin 
smelt populations as a consequence of physical, physiological, 
ecological, or behavioral factors.

Significance

    Since we have found that the Bay-Delta longfin smelt population 
meets the discreteness element of the 1996 DPS policy, we now consider 
its biological and ecological significance in light of Congressional 
guidance that the authority to list DPSes be used ``sparingly'' while 
encouraging the conservation of genetic diversity. In making this 
determination, we consider available scientific evidence of the 
discrete population segment's importance to the taxon to which it 
belongs. As precise circumstances are likely to vary considerably from 
case to case, the DPS policy does not describe all the classes of 
information that might be used in determining the biological and 
ecological importance of a discrete population. However, the DPS policy 
describes four possible classes of information that provide evidence of 
a population segment's biological and ecological importance to the 
taxon to which it belongs. As specified in the DPS policy, this 
consideration of the population segment's significance may include, but 
is not limited to, the following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique to the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    A population segment needs to satisfy only one of these conditions 
to be considered significant. Furthermore, other information may be 
used as appropriate to provide evidence for significance.
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique to the taxon.
    The Bay-Delta population is the southernmost breeding population in 
the range of the species. Populations at the edge of a species' range 
may be important in species conservation because environmental 
conditions at the periphery of a species' range can be different from 
environmental conditions nearer the center of a species' range. Thus, 
populations at the edge of the taxon's range may experience different 
natural selection pressures that promote divergent evolutionary 
adaptations (Scudder 1989, entire; Fraser 2000, entire). Lomolino and 
Channell (1998, p. 482) hypothesized that because peripheral 
populations should be adapted to a greater variety of environmental 
conditions, they may be better suited to deal with anthropogenic 
(human-caused) disturbances than populations in the central part of a 
species' range; however, this hypothesis remains unproven. This could 
be especially important because of changing natural selection pressures 
associated with climate change.
    For example, increasing ocean temperatures is an environmental 
change to which the Bay-Delta population of longfin smelt may be 
uniquely adapted. Because it is the southern-most estuary within the 
species' range, the Bay-Delta has warmer average water temperatures 
than estuaries in central and northern parts of the species' range. As 
a result, the Bay-Delta longfin smelt population may have behavioral or 
physiological adaptations for coping with higher water temperatures 
that may come as a result of climate change (see discussion under 
Factor A: Climate Change). Baxter et al. (2010, p. 68) conclude that 
high water temperatures in the Bay-Delta influence spatial distribution 
of longfin smelt in the estuary. Rosenfield and Baxter (2007, p. 1290) 
hypothesize that the partial anadromy exhibited by the population (part 
of the population is believed to migrate out into the cooler, nearby 
coastal ocean waters in the Gulf of Farallones) and concentrations of 
longfin smelt in deeper water habitat in summer months is at least 
partly a behavioral response to warm water temperatures found during 
summer and early fall in the shallows of south San Francisco Bay and 
San Pablo Bay (Rosenfield and Baxter 2007, p. 1590).
    The Bay-Delta estuary, although greatly degraded, is the largest 
estuary on the Pacific Coast of the United States (Sommer et al. 2007, 
p. 271). Because of its large size and diverse habitat, it is capable 
of supporting a large longfin smelt population. Large populations are 
valuable in the conservation of species because of their lower 
extinction risks compared to small populations. Historically, longfin 
smelt is believed to have been one of the more abundant pelagic fishes 
in the Bay-Delta. The areal extent of tidal freshwater habitat in the 
Bay-Delta estuary exceeds that of other California estuaries by an 
order of magnitude (NOAA 2007, p. 1), providing not only more available 
spawning habitat but also important habitat diversity should conditions 
at any one location become unsuitable. The Bay-Delta contains 
significant amounts of tidal freshwater and mixing zone habitat (Monaco 
et al. 1992, p. 255), which is crucial for spawning and rearing of 
juvenile longfin smelt. Other Pacific Coast estuaries where longfin 
smelt occur are predominately river-dominated estuaries (e.g., Russian 
River, Eel River, Klamath River, Columbia River), which have much 
smaller areas of low-salinity brackish water for longfin smelt rearing 
habitat.
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon.
    Loss of the Bay-Delta population of longfin smelt would result in a 
significant gap in the range of the taxon because the nearest 
persistent longfin smelt breeding population to the Bay-Delta 
population is in Humboldt Bay, which is located approximately 420 km 
(260 mi) away. Loss of the Bay-Delta population would truncate the 
range of the species by hundreds of miles.
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as

[[Page 19782]]

an introduced population outside its historic range.
    This factor does not apply to the Bay-Delta longfin smelt 
population because other naturally occurring populations are found 
within the species' range.
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    As discussed above under Quantitative Measures of Genetic or 
Morphological Discontinuity, two studies have evaluated genetic 
characteristics of the Bay-Delta longfin smelt population. One study 
concluded that genetic characteristics of the Bay-Delta population 
differed from the Lake Washington population but did not compare any 
other populations (Stanley et al. 1995, pp. 390-396). Israel et al. 
(2011, pp. 1-10) presented preliminary results from an ongoing study, 
but these results are inconclusive in determining whether the Bay-Delta 
population differs markedly from other longfin smelt populations in its 
genetic characteristics. Therefore, although information indicates that 
the genetic characteristics of the Bay-Delta population differs from at 
least one other longfin smelt population (Lake Washington), there is no 
other information currently available indicating that the genetic 
characteristics of the Bay-Delta population differ markedly from other 
longfin smelt populations.
Conclusion for Significance
    We conclude that the Bay-Delta population is biologically 
significant to the longfin smelt species because the population occurs 
in an ecological setting unusual or unique for the species and its loss 
would result in a significant truncation of the range of the species. 
The Bay-Delta longfin smelt population occurs at the southern edge of 
the species' range and has likely experienced different natural 
selection pressures than those experienced by populations in middle 
portions of the species' range. The population may therefore possess 
unique evolutionary adaptations important to the conservation of the 
species. The Bay-Delta also is unique because it is the largest estuary 
on the Pacific Coast of the United States. Because of its large size 
and diverse aquatic habitats, the Bay-Delta has the potential to 
support a large longfin smelt population and is thus potentially 
important in the conservation of the species. The Bay-Delta population 
also is significant to the taxon because the nearest known breeding 
population of longfin smelt is hundreds of miles away, so loss of the 
Bay-Delta population would significantly truncate the range of the 
species and result in a significant gap in the species' range. Based on 
our review of the best available scientific and commercial information, 
we conclude that the Bay-Delta population meets the significance 
element of the 1996 DPS policy.

Determination of Distinct Population Segment

    Because we have determined that the Bay-Delta population meets both 
the discreteness and significance elements of the 1996 DPS policy, we 
find that the Bay-Delta longfin smelt population is a valid DPS and 
thus is a listable entity under the Act. Therefore, we next evaluate 
its conservation status in relation to the Act's standards for listing 
(i.e., is the population segment, when treated as if it were a species, 
endangered or threatened?).

Distinct Population Segment Five-Factor Analysis

    Because the Bay-Delta population of longfin smelt meets the 
criteria for a DPS, we will now evaluate its status with regard to its 
potential for listing as endangered or threatened under the five 
factors enumerated in section 4(a) of the Act. Our evaluation of the 
Bay-Delta DPS of longfin smelt follows.
    Under Summary of Information Pertaining to the Five Factors, we 
evaluated threats to longfin smelt throughout its range. Much of this 
rangewide analysis focused on threats to the Bay-Delta population 
because so little information exists for other parts of the species' 
range. Although the threats of lack of freshwater flow, contaminants, 
and invasive species do not rise to the level of being significant 
threats rangewide, the best available scientific and commercial data 
indicates that these threats are significant to the species within the 
Bay-Delta. We utilized the vast amounts of research that have been 
conducted within the Bay-Delta by the Interagency Ecological Program 
and University of California at Davis to make our determinations of 
threats in the Bay-Delta.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

Reduced Freshwater Flow
    As we discussed above in the rangewide analysis, a primary threat 
to the Bay-Delta longfin smelt is reduced freshwater flows. In the Bay-
Delta, freshwater flow is strongly related to the natural hydrologic 
cycles of drought and flood. Studies of Bay-Delta longfin smelt have 
found that increased Delta outflow during the winter and spring is the 
largest factor positively affecting longfin smelt abundance (Stevens 
and Miller 1983, pp. 431-432; Jassby et al. 1995, p. 285; Sommer et al. 
2007, p. 274; Thomson et al. 2010, pp. 1439-1440). During high outflow 
periods larvae are believed to benefit from increased transport and 
dispersal downstream, increased food production, reduced predation 
through increased turbidity, and reduced loss to entrainment due to a 
westward shift in the boundary of spawning habitat and strong 
downstream transport of larvae (CFDG 1992, pp. 45-61; Hieb and Baxter 
1993, pp. 106-107; CDFG 2009a, p. 18). Conversely, during low outflow 
periods, the negative effects of reduced transport and dispersal, 
reduced turbidity, and potentially increased loss of larvae to 
predation and increased loss at the export facilities result in lower 
young-of-the-year recruitment. Despite numerous studies of longfin 
smelt abundance and flow in the Bay-Delta, the underlying causal 
mechanisms are still not fully understood (Baxter et al. 2010, p. 69; 
Rosenfield 2010, p. 9).
    As California's population has grown, demands for reliable water 
supplies and flood protection have grown. In response, State and 
Federal agencies built dams and canals, and captured water in 
reservoirs, to increase capacity for water storage and conveyance 
resulting in one of the largest manmade water systems in the world 
(Nichols et al. 1986, p. 569). Operation of this system has altered the 
seasonal pattern of freshwater flows in the watershed. Storage in the 
upper watershed of peak runoff and release of the captured water for 
irrigation and urban needs during subsequent low flow periods result in 
a broader, flatter hydrograph with less seasonal variability in 
freshwater flows into the estuary (Kimmerer 2004, p. 15).
    In addition to the system of dams and canals built throughout the 
Sacramento River-San Joaquin River basin, the Bay-Delta is unique in 
having a large water diversion system located within the estuary 
(Kimmerer 2002b, p. 1279). The State Water Project (SWP) and Central 
Valley Project (CVP) operate two water export facilities in the Delta 
(Sommer et al. 2007, p. 272). Project operation and management is 
dependent upon upstream water supply and export area demands. Despite 
the size of the water storage and diversion projects, much of the 
interannual variability in Delta hydrology is due to variability in 
precipitation from year to year. Annual inflow from the watershed to 
the Delta is strongly correlated to unimpaired flow (runoff that would 
hypothetically

[[Page 19783]]

occur if upstream dams and diversions were not in existence), mainly 
due to the effects of high-flow events (Kimmerer 2004, p. 15). Water 
operations are regulated in part by the California State Water 
Resources Control Board (SWRCB) according to the Water Quality Control 
Plan (WQCP) (SWRCB 2000, entire). The WQCP limits Delta water exports 
in relation to Delta inflow (the Export/Inflow, or E/I ratio).
    It is important to note that in the case of the Bay-Delta, 
freshwater flow is expressed as both Delta inflow (from the rivers into 
the Delta) and as Delta outflow (from the Delta into the lower 
estuary), which are closely correlated, but not equivalent. Freshwater 
flow into the Delta affects the location of the low salinity zone and 
X2 within the estuary. As longfin smelt spawn in freshwater, they must 
migrate farther upstream to spawn as flow reductions alter the position 
of X2 and the low-salinity zone moves upstream (CDFG 2009, p. 17). 
Longer migration distances into the Bay-Delta make longfin smelt more 
susceptible to entrainment in the State and Federal water pumps (see 
Factor E: Entrainment Losses, below). In periods with greater 
freshwater flow into the Delta, X2 is pushed farther downstream 
(seaward); in periods with low flows, X2 is positioned farther landward 
(upstream) in the estuary and into the Delta. Not only is longfin smelt 
abundance in the Bay-Delta strongly correlated with Delta inflow and 
X2, but the spatial distribution of longfin smelt larvae is also 
strongly associated with X2 (Dege and Brown 2004, pp. 58-60; Baxter et 
al. 2010, p. 61). As longfin hatch into larvae, they move from the 
areas where they are spawned and orient themselves just downstream of 
X2 (Dege and Brown 2004, pp. 58-60). Larval (winter-spring) habitat 
varies with outflow and with the location of X2 (CDFG 2009, p. 12), and 
has been reduced since the 1990s due to a general upstream shift in the 
location of X2 (Hilts 2012, unpublished data). The amount of rearing 
habitat (salinity between 0.1 and 18 ppt) is also presumed to vary with 
the location of X2 (Baxter et al. 2010, p. 64). However, as previously 
stated, the location of X2 is of particular importance to the 
distribution of newly-hatched larvae and spawning adults. The influence 
of water project operations from November through April, when spawning 
adults and newly-hatched larvae are oriented to X2, is greater in drier 
years than in wetter years (Knowles 2002, p. 7).
    In addition to the effects of reduced freshwater flow on habitat 
suitability for longfin smelt and other organisms in the Bay-Delta, one 
of the principal concerns over the biological impacts of these water 
export facilities has been entrainment of fish and other aquatic 
organisms. For a detailed discussion, see Factor E: Entrainment Losses, 
below.
    Given the observed negative association between the reduction of 
freshwater outflow and longfin smelt abundance, we consider the current 
reductions in freshwater outflow to pose a significant threat to the 
Bay-Delta DPS of longfin smelt. Based on the observed associations in 
the Bay-Delta between freshwater outflow and longfin abundance, the 
lack of effective control mechanisms, and projections of freshwater 
outflow fluctuations, we expect the degree of this threat to continue 
and likely increase within the foreseeable future. We conclude that 
lack of freshwater flow is a significant current and future threat to 
the Bay-Delta DPS of longfin smelt.
Climate Change
    Climate change may affect the Bay-Delta DPS of longfin smelt 
habitat as a result of (1) Changes in the timing and availability of 
freshwater flow into the estuary due to reduced snowpack and earlier 
melting of the snowpack; (2) sea level rise and saltwater intrusion 
into the estuary; (3) effects associated with increased water 
temperatures; and (4) effects related to changes in frequency and 
intensity of storms, floods, and droughts. It is difficult to evaluate 
effects related to changes in the timing and availability of freshwater 
flow into the estuary due to reduced snowpack and earlier melting of 
the snowpack because these potential effects will likely be impacted to 
some extent through decisions on water management in the intensively 
managed Sacramento River-San Joaquin River water basin. Continued sea 
level rise will result in saltwater intrusion and landward displacement 
of the low-salinity zone, which would likely negatively affect longfin 
smelt habitat suitability. Increasing water temperatures would likely 
affect distribution and movement patterns of longfin smelt in the 
estuary; longfin smelt may be displaced to locations with deeper and 
cooler water temperatures. This displacement may result in decreased 
survival and productivity. Increased frequency and severity of storms, 
floods, and droughts could result in reduced longfin smelt habitat 
suitability, but it is difficult to estimate these effects because of 
uncertainty about the frequency and severity of these events. However, 
warming may result in more precipitation falling as rain and less 
storage as snow, increasing winter runoff as spring runoff decreases 
(USBR 2011, p. 147).
    It is uncertain how a change in the timing and duration of 
freshwater flows will affect longfin smelt. Higher flows in January and 
February (peak spawning and hatching months) resulting from snow packs 
that melt sooner and rain-on-snow events could potentially create 
better spawning and larval rearing conditions. This would reduce adult 
migration distance and increase areas of freshwater spawning habitat 
during these months. In addition, the higher turbidity associated with 
these flows may reduce predation on longfin smelt adults and larvae 
(Baxter 2011, pers. comm.). However, if high flows last only a short 
period, benefits may be negated by poorer conditions before and after 
the high flows. As the freshwater boundary moves farther inland into 
the Delta with increasing sea level (see below) and reduced flows, 
adults will need to migrate farther into the Delta to spawn, increasing 
the risk of predation and the potential for entrainment into water 
export facilities and diversions for both themselves and their progeny. 
Because of the uncertainties surrounding climate change and the 
potential for increased winter runoff that could benefit longfin smelt, 
we determined that there is not sufficient information to conclude that 
climate change threatens the continued existence of the Bay-Delta DPS 
of longfin smelt.
Channel Disturbances
    Channel dredging in the Bay-Delta is an ongoing periodic 
disturbance of longfin smelt habitat, but most activity occurs in areas 
where longfin smelt are not likely to be present. We conclude that the 
effects of ongoing channel maintenance dredging are small and localized 
and do not rise to a level that would significantly affect the 
population as a whole.
    There is currently a proposal to deepen and selectively widen the 
Sacramento Deep Water Ship Channel and the lower portion of the 
Sacramento River in the Bay-Delta. This dredging project would remove 
between 6.1-7.6 million cubic meters (8 and 10 million cubic yards) of 
material from the channel and Sacramento River and extend for 74 km 
(45.8 mi) (USACE 2011a, entire). Potential effects of this new project 
to longfin smelt include mortality through loss of spawning substrate, 
habitat modification, and a shift in spawning and rearing habitat. The 
project also has potential to alter breeding and foraging behavior of 
the Bay-Delta longfin smelt population. However, this project is only a 
proposal

[[Page 19784]]

at this time and is not certain to occur. Potential effects of the 
proposed project are currently under evaluation.
Summary of Factor A
    In summary, we conclude that the best available scientific and 
commercial information available indicates that the effects of reduced 
freshwater flows constitute a current and future threat to the Bay-
Delta DPS of longfin smelt. We find that the Bay-Delta DPS of longfin 
smelt is currently threatened in part due to the present or threatened 
destruction, modification, or curtailment of its habitat or range due 
to reduced freshwater flow.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

Commercial and Recreational Take
    Because of its status as a threatened species under the California 
Endangered Species Act, take of longfin smelt in the Bay-Delta is 
illegal, unless authorized by an incidental take permit or other take 
authorization. However, longfin smelt are caught as bycatch in a small 
bay shrimp trawl commercial fishery that operates in South San 
Francisco Bay, San Pablo Bay, and Carquinez Strait (Hieb 2009, p. 1). 
CDFG (Hieb 2009, pp. 6, 9) estimated the total longfin smelt bycatch 
from this fishery from 1989-1990 at 15,539 fish, and in 2004 at 18,815-
30,574 fish. CDFG noted in 2009 that they thought the bay shrimp trawl 
fishery had declined since 2004 (Hieb, p. 3) and just recently reported 
the number of active shrimp permits at less than 10 (Hieb 2011, pers. 
comm.).
Scientific Take
    Within the Bay-Delta, longfin smelt are regularly captured in 
monitoring surveys. The Interagency Ecological Program (IEP) implements 
scientific research in the Bay-Delta. Although the focus of its studies 
and the level of effort have changed over time, in general, their 
surveys have been directed at researching the Pelagic Organism Decline 
in the Bay-Delta. Between the years of 1987 to 2011, combined take of 
longfin smelt less than 20 mm (0.8 in) in length ranged from 2,405 to 
158,588 annually. All of these fish were preserved for research or 
assumed to die in processing. During the same time period, combined 
take for juveniles and adults (fish greater than or equal to 20 mm (0.8 
in)) ranged from 461 to 68,974 annually (IEP 2011). Although mortality 
is unknown, the majority of these fish likely do not survive. The 
Chipps Island survey, which is conducted by the Service, has captured 
an average of 2,697 longfin smelt per year during the past 10 years. 
Biologists attempt to release these fish unharmed, but at least 5,154 
longfin smelt were known to have died during the Chipps Island survey 
between 2001 and 2008 (Service 2010, entire).
    Incidental take from bycatch and monitoring surveys has not been 
identified as a possible factor related to recent longfin smelt 
population declines in the Bay-Delta (Baxter et al. 2010, pp. 61-69). 
CDFG (2009, p. 32) recommended adaptively managing scientific 
collection of longfin smelt to avoid adverse population effects, and 
survey methods have been modified recently to minimize potential 
impacts to delta smelt (75 FR 17669; April 7, 2010). These 
modifications likely have resulted in reduced impacts to longfin smelt. 
Based on the best scientific and commercial information, we conclude 
that the Bay-Delta DPS of longfin smelt is not currently threatened by 
overutilization for commercial, recreational, scientific, or 
educational purposes, nor do we anticipate overutilization posing a 
significant threat in the future.

Factor C. Disease or Predation

Disease
    Little information is available on incidence of disease in the Bay-
Delta longfin smelt DPS. Larval and juvenile longfin smelt were 
collected from the Bay-Delta in 2006 and 2007 and analyzed for signs of 
disease and parasites (Foott and Stone 2006, entire; Foott and Stone 
2007, entire). No significant health problem was detected in either 
year (Foott and Stone 2007, p. 15). The south Delta is fed by water 
from the San Joaquin River, where pesticides (e.g., chlorpyrifos, 
carbofuran, and diazinon), salts (e.g., sodium sulfates), trace 
elements (boron and selenium), and high levels of total dissolved 
solids are prevalent due to agricultural runoff (64 FR 5963; February 
8, 1999). Pesticides and other toxic chemicals may adversely affect the 
immune system of longfin smelt and other fish in the Bay-Delta and 
other estuaries, but we found no information documenting such effects.
Predation
    Striped bass were introduced into the Bay-Delta in 1879 and quickly 
became abundant throughout the estuary. However, their numbers have 
declined substantially over the last 40 years (Thomson et al. 2010, p. 
1440), and they are themselves one of the four species studied under 
Pelagic Organism Decline investigations (Baxter et al. 2010, p. 16). 
Numbers of largemouth bass, another introduced species in the Bay-
Delta, have increased in the Delta over the past few decades (Brown and 
Michniuk 2007, p. 195). Largemouth bass, however, occur in shallow 
freshwater habitats, closer to shore than the pelagic longfin smelt, 
and so do not tend to co-occur with longfin for much of their life 
history. Baxter et al. (2010, p. 40) reported that no longfin smelt 
have been found in largemouth bass stomachs sampled in a recent study 
of largemouth bass diet. Moyle (2002, p. 238) believed that inland 
silverside, another nonnative predatory fish, may be an important 
predator on longfin eggs and larvae, but Rosenfield et al. (2010, p. 
18) believed that to be unlikely because inland silversides prefer 
shallow water habitats where juvenile and subadult longfin smelt are 
rare.
    In the Bay-Delta, predation of longfin smelt may be high in the 
Clifton Court Forebay, where the SWP water export pumping plant is 
located (Moyle 2002, p. 238; Baxter et al. 2010, p. 42). However, once 
they are entrained in the Clifton Court Forebay, longfin smelt 
mortality would be high anyway due to high water temperatures in the 
Forebay (CDFG 2009b, p. 4) and entrainment into the SWP water export 
pumping plant. In addition to elevated predation levels in the Clifton 
Court Forebay, predation also is concentrated at sites where fish 
salvaged from the SWP and CVP export facilities are released (Moyle 
2002, p. 238). However, few longfin smelt survive the salvage and 
transport process (see Factor E: Entrainment Losses, below), and 
therefore predation is not expected to be an important factor at drop 
off sites. As discussed above, reduced freshwater flows may result in 
lower turbidity and increased water clarity (see discussion under DPS' 
Factor A), which may contribute to increased risk of predation (Baxter 
et al. 2010, p. 64).
    Based on a review of the best available scientific and commercial 
information, we conclude that disease does not constitute a threat to 
the Bay-Delta longfin smelt DPS. Available information indicates that 
Bay-Delta longfin smelt experience elevated levels of predation near 
the water diversions at the SWP and CVP water export facilities in the 
south Delta and at the salvage release sites. Reduced freshwater flows 
resulting from water diversions result in increased water clarity, and 
increased water clarity may result in increased predation risks to 
longfin smelt.
    In summary, striped bass predation is in decline and largemouth 
bass predation is unlikely a threat because of

[[Page 19785]]

the minimal overlap in time and space of largemouth bass and longfin 
smelt. Therefore, the current rates of predation on longfin smelt are 
not expected to be having a substantial effect on the overall 
population level. Based on the best available scientific and commercial 
information, we conclude that neither disease nor predation are 
significant current or future threats to the Bay-Delta longfin smelt 
DPS.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Existing Federal and State regulatory mechanisms discussed under 
Factor D of the rangewide analysis that provide protections or reduce 
threats to the Bay-Delta DPS of longfin smelt include: California 
Endangered Species Act, Porter-Cologne Water Quality Control Act, 
California Marine Invasive Species Act, Central Valley Project 
Improvement Act, and Clean Water Act (including the National Pollutant 
Discharge Elimination System). Several of these regulatory mechanisms 
provide important protections for the Bay-Delta DPS of longfin smelt 
and act to reduce threats, such as reduction of freshwater outflow, the 
invasion of the overbite clam and ammonia discharges (See Factors A, 
above, and E, below).
    The longfin smelt was listed under the California Endangered 
Species Act as threatened throughout its range in California on March 
5, 2009 (CDFG 2009, p. V). CESA does allow take of species for 
otherwise lawful projects through use of an incidental take permit. A 
take permit requires that impacts be minimized and fully mitigated 
(CESA sections 2081 (b) and (c)). Furthermore, the CESA ensures through 
the issuance of a permit for a project that may affect longfin smelt or 
its habitat, that the project will not jeopardize the continued 
existence of a State-listed species.
    The Porter-Cologne Water Quality Control Act is the California 
State law that 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. The State Water Resources Control Board Water Rights 
Decision 1641 (D-1641) imposes flow and water quality standards on the 
State and Federal water export facilities to assure protection of 
beneficial uses in the Delta (FWS 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. These 
protections have had limited effectiveness in providing adequate 
freshwater flows within the Delta. Lack of freshwater outflow continues 
to be the primary contributing factor to the decline of the longfin 
smelt in the Bay-Delta (see Factor A, above, for further discussion).
    The California Marine Invasive Species Act requires ballast water 
management for all vessels that intend to discharge ballast water in 
California waters. All qualifying vessels coming from ports within the 
Pacific Coast region must conduct an exchange in waters at least 50 
nautical mi offshore and 200 m (656 ft) deep or retain all ballast 
water and associated sediments. To determine the effectiveness of the 
management provisions of the this State act, the legislation also 
requires State agencies to conduct a series of biological surveys to 
monitor new introductions to coastal and estuarine waters. These 
measures should further minimize the introduction of new invasive 
species into California's coastal waters that could be a threat to the 
longfin smelt.
    The Central Valley Project Improvement Act amends the previous 
Central Valley Project 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. Included 
in CVPIA section 3406 (b)(2) was a provision to dedicate 800,000 acre-
feet of Central Valley Project yield annually (referred to as ``(b)(2) 
water'') for fish, wildlife, and habitat restoration. Since 1993, 
(b)(2) water has been used and supplemented with acquired environmental 
water (Environmental Water Account and CVPIA section 3406 (b)(3) water) 
to increase stream flows and reduce Central Valley Project export 
pumping in the Delta. These management actions were taken to contribute 
to the CVPIA salmonid population doubling goals and to protect Delta 
smelt and their habitat (Guinee 2011, pers. comm.). As discussed above 
(under Biology and Factor A), increased freshwater flows have been 
shown to be positively correlated with longfin smelt abundance; 
therefore, these management actions, although targeted towards other 
species, should also benefit longfin smelt.
    The Clean Water Act (CWA) provides the basis for the National 
Pollutant Discharge Elimination System (NPDES). The CWA gives the EPA 
the authority to set effluent limits and requires any entity 
discharging pollutants to obtain a NPDES permit. The EPA is authorized 
through the CWA to delegate the authority to issue NPDES Permits to 
State governments. In States that have been authorized to implement CWA 
programs, the EPA still retains oversight responsibilities (EPA 2011, 
p. 1). California is one of these States to which the EPA has delegated 
CWA authority. The Porter-Cologne Water Quality Control Act established 
the California State Water Resources Control Board (SWRCB) and nine 
Regional Water Quality Control Boards that are now responsible for 
issuing these NPDES permits, including permits for the discharge of 
effluents such as ammonia. The SWRCB is responsible for regulating 
activities and factors that could degrade California water quality 
(California Water Code Division 7, section 13370-13389).
    The release of ammonia into the estuary is having detrimental 
effects on the Delta ecosystem and food chain (see Factor E, below). 
The release of ammonia is controlled primarily by the CWA (Federal law) 
and secondarily through the Porter-Cologne Water Quality Control Act 
(State law). EPA is currently updating freshwater discharge criteria 
that will include new limits on ammonia (EPA 2009, pp. 1-46). An NPDES 
permit for the Sacramento Regional Wastewater Treatment Plant, a major 
discharger, was prepared by the California Central Valley Regional 
Water Quality Control Board in the fall of 2010, with new ammonia 
limitations intended to reduce loadings to the Delta. The permit is 
currently undergoing appeal, but it is likely that the new ammonia 
limits will take effect in 2020. Until that time, CWA protections for 
longfin smelt are limited, and do not reduce the current threat to 
longfin smelt.
Summary of Factor D
    A number of Federal and State regulatory mechanisms exist that can 
provide some protections for the Bay-Delta DPS of longfin smelt. 
However, the continued decline in longfin smelt trend indicators 
suggests 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 conclude that

[[Page 19786]]

existing regulatory mechanisms are not sufficient to protect the 
species.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    Other factors affecting the continued existence of the Bay-Delta 
DPS of longfin smelt are entrainment losses due to water diversions, 
introduced species, and contaminants (see Factor E of the Summary of 
Information Pertaining to the Five Factors section, above).
Entrainment Losses Due to Water Diversions
    Entrainment losses at the SWP and CVP water export facilities are a 
known source of mortality of longfin smelt and other pelagic fish 
species in the Bay Delta, although the full magnitude of entrainment 
losses and population-level implications of these losses is still not 
fully understood. High entrainment losses of longfin smelt and other 
Bay-Delta pelagic fish between 2000 and 2005 correspond with high 
volumes of water exports during winter (Baxter et al. 2010, p. 63). 
Baxter et al. (2010, p. 62) hypothesize that entrainment is having an 
important effect on the longfin smelt population during winter, 
particularly during years with low freshwater flows when a higher 
proportion of the population may spawn farther upstream in the Delta. 
However, Baxter et al. (2010, p. 63) conclude that these losses have 
yet to be placed in a population context, and no conclusions can be 
drawn regarding their effects on recent longfin smelt abundance. CDFG 
(2009, p. 22) believes that efforts to reduce past delta smelt 
entrainment loss through the implementation of the 2008 delta smelt 
biological opinion for SWP and CVP operations may have reduced longfin 
smelt entrainment losses, incidentally providing a benefit to the 
longfin smelt. These efforts to manage entrainment losses in drier 
years, when entrainment risk is greater, substantially reduce the 
threat of entrainment for longfin smelt.
    Estimates of entrainment have shown that it may have been a threat 
to the Bay-Delta longfin smelt DPS in the past. Fujimura (2009) 
estimated cumulative longfin smelt entrainment at the SWP facility 
between 1993 and 2008 at 1,376,432 juveniles and 11,054 adults, and 
estimated that 97.6 percent of juveniles and 95 percent of adults 
entrained were lost. Fujimura (2009) estimated cumulative longfin 
entrainment at the CVP facility between 1993 and 2008 at 224,606 
juveniles and 1,325 adults, and estimated that 85.2 percent of the 
juveniles and 82.1 percent of the adults entrained were lost. These 
estimated losses are 4 times higher than observed salvage at the CVP 
and 21 times higher than the actual salvage numbers at the SWP 
(Fujimura 2009, p. 2). The estimated entrainment numbers were much 
higher than the actual salvage numbers at the SWP, due in large part to 
the high pre-screen losses in the Clifton Court Forebay (CDFG 2009a, p. 
21). It should be noted that these estimates were calculated using 
equations and parameters devised for other species and may not 
accurately estimate longfin smelt losses. Further, estimates may be 
misleading because the majority of estimated losses occurred during the 
dry year of 2002 (1.1 million juveniles estimated at the SWP) while 
during all other years estimated entrainment was below 70,000 
individuals.
    Entrainment is no longer considered a threat to longfin in the Bay-
Delta because of current regulations. Efforts to reduce delta smelt 
entrainment loss through the implementation of the 2008 delta smelt 
biological opinion and the listing of longfin smelt under the CESA have 
likely reduced longfin smelt entrainment losses. The high rate of 
entrainment that occurred in 2002 that threatened the Bay Delta longfin 
smelt DPS is very unlikely to recur, and would no longer be allowed 
under today's regulations because limits on longfin smelt take due to 
CESA regulations (see DPS' Factor D discussion, above) would trigger 
reductions in the magnitude of reverse flows.
    Although larval and adult longfin smelt are lost as a result of 
entrainment in the water export facilities in the Delta, we conclude 
that the risk of entrainment is generally greatest when X2 is upstream 
and export volumes from the CVP and SWP pumps are high. Therefore, we 
have determined that longfin smelt are not currently threatened by 
entrainment, nor do we anticipate longfin smelt will be threatened by 
entrainment in the future.
Introduced Species
    In Suisun Bay, a key longfin smelt rearing area, phytoplankton 
biomass is influenced by the overbite or Amur River clam. A sharp 
decline in phytoplankton biomass occurred following the invasion of the 
estuary by this species, even though nutrients were not found to be 
limiting (Alpine and Cloern 1992, pp. 950-951). Abundance of 
zooplankton decreased across several taxa, and peaks that formerly 
occurred in time and space were absent, reduced or relocated after 1987 
(Kimmerer and Orsi 1996, p. 412). The general decline in phytoplankton 
and zooplankton is likely affecting longfin smelt by decreasing food 
supply for their prey species, such as N. mercedis (Kimmerer and Orsi 
1996, pp. 418-419). Models indicate that the longfin smelt abundance 
index has been on a steady linear decline since about the time of the 
invasion of the non-native overbite (or Amur) clam in 1987 (Rosenfield 
and Swanson 2010, p. 14).
    Given the observed negative association between the introduction of 
the overbite clam and longfin smelt abundance in the Bay-Delta and the 
documented decline of key longfin smelt prey items, we consider the 
current overbite clam population to pose a significant threat to the 
Bay-Delta DPS of longfin smelt. Based on the observed associations in 
the Bay-Delta between overbite clam invasion and longfin abundance and 
the lack of effective control mechanisms, we expect the degree of this 
threat will continue into the foreseeable future. The Bay-Delta has 
numerous other invasive species that have disrupted ecosystem dynamics; 
however, only the overbite clam has been shown to have an impact on the 
longfin smelt population. We consider the overbite clam to be a 
significant ongoing threat to the Bay-Delta longfin smelt population.
Contaminants
    Extensive research on the role of contaminants in the Pelagic 
Organism Decline is currently being conducted (Baxter et al. 2010, pp. 
28-36). Of potential concern are effects of high levels of mercury and 
other metals; high ammonium concentrations from municipal wastewater; 
potentially harmful cyanobacteria algal blooms; and pesticides, 
especially pyrethroid pesticides, which are heavily used in San Joaquin 
Valley agriculture. Contaminants may have direct toxic effects to 
longfin smelt and other pelagic fish and indirect effects as a result 
of impacts to prey abundance and composition. Ammonium has been shown 
to impact longfin smelt habitat by affecting primary production and 
prey abundance within the Bay-Delta (Dugdale et al. 2007, p. 26). While 
contaminants are suspected of playing a role in declines of pelagic 
fish species in the Bay-Delta (Baxter et al. 2010, p. 28), contaminant 
effects remain unresolved.
    The largest source of ammonia entering the Delta ecosystem is the 
Sacramento Regional Wastewater Treatment Plant (SRWTP), which accounts 
for 90 percent of the total ammonia load released into the Delta. 
Ammonia is un-ionized and has the chemical formula NH3. 
Ammonium is

[[Page 19787]]

ionized and has the formula NH4\+\. The major factors 
determining the proportion of ammonia or ammonium in water are water pH 
and temperature. This is important, as NH3 ammonia is the 
form that can be directly toxic to aquatic organisms, and 
NH4+ ammonium is the form documented to interfere with 
uptake of nitrates by phytoplankton (Dugdale et al. 2007, p. 17; Jassby 
2008, p. 3).
    In addition to potential direct effects on fish, ammonia in the 
form of ammonium has been shown to alter the food web by adversely 
impacting phytoplankton and zooplankton dynamics in the estuary 
ecosystem. Historical data suggest that decreases in Suisun Bay 
phytoplankton biomass coincide with increased ammonia discharge by the 
SRWTP (Parker et al. 2004, p. 7; Dugdale et al. 2011, p. 1). 
Phytoplankton preferentially take up ammonium over nitrate when it is 
present in the water. Ammonium is insufficient to provide for growth in 
phytoplankton, and uptake of ammonium to the exclusion of nitrate 
results in decreases in phytoplankton biomass (Dugdale et al. 2007, p. 
23). Therefore, ammonium impairs primary productivity by reducing 
nitrate uptake in phytoplankton. Ammonium's negative effect on the food 
web has been documented in the longfin smelt rearing areas of San 
Francisco Bay and Suisun Bay (Dugdale et al. 2007, pp. 27-28). 
Decreased primary productivity results in less food available to 
longfin smelt and other fish in these bays.
    In summary, although no direct link has been made between 
contaminants and longfin smelt (Baxter et al. 2010, p. 68), ammonium 
has been shown to have a direct effect on the food supply that the Bay-
Delta longfin smelt DPS relies upon. Therefore, we conclude that high 
ammonium concentrations may be a significant current and future threat 
to the Bay-Delta DPS of longfin smelt.
Summary of Factor E
    The best available information indicates that introduced species 
constitute a threat to the Bay-Delta DPS of longfin smelt and that and 
contaminants (high ammonium concentrations) may constitute a threat to 
the Bay-Delta DPS of longfin smelt. Entrainment is a potential threat 
to the DPS, but information currently available does not indicate that 
entrainment threatens the continued existence of the Bay-Delta longfin 
smelt population. Although entrainment results in mortality of longfin 
smelt, Baxter et al. (2010, p. 63) concluded that these losses have yet 
to be placed in a population context, and no conclusions can be drawn 
regarding their effects on recent longfin smelt abundance. Therefore, 
based on the best scientific evidence available, we conclude that the 
Bay-Delta longfin smelt DPS is threatened in part due to other natural 
or manmade factors including the nonnative overbite clam and high 
ammonium concentrations.

Finding

    This status review identified threats to the Bay-Delta DPS of 
longfin smelt attributable to Factors A, D, and E, as well as 
interactions between these threats. The primary threat to the DPS is 
from reduced freshwater flows. Upstream dams and water storage 
exacerbated by water diversions, especially from the SWP and CVP water 
export facilities, result in reduced freshwater flows within the 
estuary, and these reductions in freshwater flows result in reduced 
habitat suitability for longfin smelt (Factor A). Freshwater flows, 
especially winter-spring flows, are significantly correlated with 
longfin smelt abundance--longfin smelt abundance is lower when winter-
spring flows are lower. While freshwater flows have been shown to be 
significantly correlated with longfin smelt abundance, causal 
mechanisms underlying this correlation are still not fully understood 
and are the subject of ongoing research on the Pelagic Organism 
Decline.
    In addition to the threat caused by reduced freshwater flow into 
the Bay-Delta, and alteration of natural flow regimes resulting from 
water storage and diversion, there appear to be other factors 
contributing to the Pelagic Organism Decline (Baxter 2010 et al., p. 
69). Models indicate a steady linear decline in abundance of longfin 
smelt since about the time of the invasion of the nonnative overbite 
clam in 1987 (Rosenfield and Swanson 2010, pp. 13-14; see Factor E: 
Introduced Species) in the Bay-Delta. However, not all aspects of the 
longfin smelt decline can be attributed to the overbite clam invasion, 
as a decline in abundance of pre-spawning adults in Suisun Marsh 
occurred before the invasion of the clam, and a partial rebound in 
longfin smelt abundance occurred in the early 2000s (Rosenfield and 
Baxter 2007, p. 1589).
    The long-term decline in abundance of longfin smelt in the Bay-
Delta has been partially attributed to reductions in food availability 
and disruptions of the Bay-Delta food web caused by establishment of 
the nonnative overbite clam in 1987 (Factor E) and ammonium 
concentrations (Factor E). Impacts of the overbite clam and ammonium on 
the Bay-Delta food web have been long-lasting and are ongoing. We 
conclude that ongoing disruptions of the food web caused by the 
overbite clam are a threat to the continued existence of the Bay-Delta 
DPS of longfin smelt. We also conclude that high ammonium 
concentrations in the Bay-Delta may constitute a threat to the 
continued existence of the overbite clam.
    Multiple existing Federal and State regulatory mechanisms provide 
important protections for the Bay-Delta DPS of longfin smelt and act to 
reduce threats to the DPS. However, the continued decline in the 
abundance of the Bay-Delta longfin smelt DPS indicates that existing 
regulatory mechanisms, as currently implemented, are not adequate to 
sufficiently reduce threats identified in this finding. Therefore, we 
find that inadequate existing regulatory mechanisms contribute to 
threats faced by the Bay-Delta longfin smelt DPS.
    The threats identified are likely acting together to contribute to 
the decline of the population (Baxter et al. 2010, p. 69). Reduced 
freshwater flows result in effects to longfin smelt habitat 
suitability, at the same time that the food web has been altered by 
introduced species and ammonium concentrations. It is possible that 
climate change could exacerbate these threats; however, due to 
uncertainties of how longfin smelt will respond to climate change 
effects, we cannot conclude that climate change will threaten the 
continued existence of the Bay-Delta longfin smelt DPS. The combined 
effects of reduced freshwater flows, the invasive overbite clam 
(reduced levels of phytoplankton and zooplankton that are important to 
the Bay-Delta food web), and high ammonium concentrations act to 
significantly reduce habitat suitability for longfin smelt.
    The best scientific and commercial information available indicates 
that the threats facing the Bay-Delta DPS of longfin smelt are of 
sufficient imminence, intensity and magnitude to threaten the continued 
existence of the species now or in the foreseeable future. Therefore, 
we find that listing the Bay-Delta longfin smelt DPS is warranted. We 
will make a determination on the status of the DPS as endangered or 
threatened when we prepare a proposed listing determination. However, 
as explained in more detail below, an immediate proposal of a 
regulation implementing this action is precluded by higher priority 
listing actions, and progress is being made to add or remove qualified 
species from the Lists of Endangered and Threatened Wildlife and 
Plants.

[[Page 19788]]

    We reviewed the available information to determine if the existing 
and foreseeable threats render the species at risk of extinction now 
such that issuing an emergency regulation temporarily listing the 
species under section 4(b)(7) of the Act is warranted. We determined 
that issuing an emergency regulation temporarily listing the DPS is not 
warranted at this time because the threats are not of sufficient 
magnitude and imminence to pose an immediate threat to the continued 
existence of the DPS. However, if at any time we determine that issuing 
an emergency regulation temporarily listing the Bay-Delta DPS of 
longfin smelt is warranted, we will initiate this action at that time.

Significant Portion of Its Range

    The Act defines ``endangered species'' as any species which is ``in 
danger of extinction throughout all or a significant portion of its 
range,'' and ``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.'' The definition of 
``species'' is also relevant to this discussion. The Act defines 
``species'' as ``any subspecies of fish or wildlife or plants, and any 
distinct population segment [DPS] of any species of vertebrate fish or 
wildlife which interbreeds when mature'' (16 U.S.C. 1532(16)). The 
phrase ``significant portion of its range'' (SPR) is not defined by the 
statute, and we have never addressed in our regulations: (1) The 
consequences of a determination that a species is either endangered or 
likely to become so throughout a significant portion of its range, but 
not throughout all of its range; or (2) what qualifies a portion of a 
range as ``significant.''
    Two recent district court decisions have addressed whether the SPR 
language allows the Service to list or protect less than all members of 
a defined ``species'': Defenders of Wildlife v. Salazar, 729 F. Supp. 
2d 1207 (D. Mont. 2010), concerning the Service's delisting of the 
Northern Rocky Mountain gray wolf (74 FR 15123, April 2, 2009); and 
WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. 
September 30, 2010), concerning the Service's 2008 finding on a 
petition to list the Gunnison's prairie dog (73 FR 6660, February 5, 
2008). The Service had asserted in both of these determinations that it 
had authority, in effect, to protect only some members of a 
``species,'' as defined by the Act (i.e., species, subspecies, or DPS), 
under the Act. Both courts ruled that the determinations were arbitrary 
and capricious on the grounds that this approach violated the plain and 
unambiguous language of the Act. The courts concluded that reading the 
SPR language to allow protecting only a portion of a species' range is 
inconsistent with the Act's definition of ``species.'' The courts 
concluded that once a determination is made that a species (i.e., 
species, subspecies, or DPS) meets the definition of ``endangered 
species'' or ``threatened species,'' it must be placed on the list in 
its entirety and the Act's protections applied consistently to all 
members of that species (subject to modification of protections through 
special rules under sections 4(d) and 10(j) of the Act).
    Consistent with that interpretation, and for the purposes of this 
finding, we interpret the phrase ``significant portion of its range'' 
in the Act's definitions of ``endangered species'' and ``threatened 
species'' to provide an independent basis for listing; thus there are 
two situations (or factual bases) under which a species would qualify 
for listing: a species may be endangered or threatened throughout all 
of its range; or a species may be endangered or threatened in only a 
significant portion of its range. If a species is in danger of 
extinction throughout an SPR, it, the species, is an ``endangered 
species.'' The same analysis applies to ``threatened species.'' Based 
on this interpretation and supported by existing case law, the 
consequence of finding that a species is endangered or threatened in 
only a significant portion of its range is that the entire species will 
be listed as endangered or threatened, respectively, and the Act's 
protections will be applied across the species' entire range.
    We conclude, for the purposes of this finding, that interpreting 
the SPR phrase as providing an independent basis for listing is the 
best interpretation of the Act because it is consistent with the 
purposes and the plain meaning of the key definitions of the Act; it 
does not conflict with established past agency practice (i.e., prior to 
the 2007 Solicitor's Opinion), as no consistent, long-term agency 
practice has been established; and it is consistent with the judicial 
opinions that have most closely examined this issue. Having concluded 
that the phrase ``significant portion of its range'' provides an 
independent basis for listing and protecting the entire species, we 
next turn to the meaning of ``significant'' to determine the threshold 
for when such an independent basis for listing exists.
    Although there are potentially many ways to determine whether a 
portion of a species' range is ``significant,'' we conclude, for the 
purposes of this finding, that the significance of the portion of the 
range should be determined based on its biological contribution to the 
conservation of the species. For this reason, we describe the threshold 
for ``significant'' in terms of an increase in the risk of extinction 
for the species. We conclude that a biologically based definition of 
``significant'' best conforms to the purposes of the Act, is consistent 
with judicial interpretations, and best ensures species' conservation. 
Thus, for the purposes of this finding, and as explained further below, 
a portion of the range of a species is ``significant'' if its 
contribution to the viability of the species is so important that 
without that portion, the species would be in danger of extinction.
    We evaluate biological significance based on the principles of 
conservation biology using the concepts of redundancy, resiliency, and 
representation. Resiliency describes the characteristics of a species 
and its habitat that allow it to recover from periodic disturbance. 
Redundancy (having multiple populations distributed across the 
landscape) may be needed to provide a margin of safety for the species 
to withstand catastrophic events. Representation (the range of 
variation found in a species) ensures that the species' adaptive 
capabilities are conserved. Redundancy, resiliency, and representation 
are not independent of each other, and some characteristic of a species 
or area may contribute to all three. For example, distribution across a 
wide variety of habitat types is an indicator of representation, but it 
may also indicate a broad geographic distribution contributing to 
redundancy (decreasing the chance that any one event affects the entire 
species), and the likelihood that some habitat types are less 
susceptible to certain threats, contributing to resiliency (the ability 
of the species to recover from disturbance). None of these concepts is 
intended to be mutually exclusive, and a portion of a species' range 
may be determined to be ``significant'' due to its contributions under 
any one or more of these concepts.
    For the purposes of this finding, we determine if a portion's 
biological contribution is so important that the portion qualifies as 
``significant'' by asking whether without that portion, the 
representation, redundancy, or resiliency of the species would be so 
impaired that the species would have an increased vulnerability to 
threats to the point that the overall species would be in danger of 
extinction (i.e., would be ``endangered''). Conversely, we would

[[Page 19789]]

not consider the portion of the range at issue to be ``significant'' if 
there is sufficient resiliency, redundancy, and representation 
elsewhere in the species' range that the species would not be in danger 
of extinction throughout its range if the population in that portion of 
the range in question became extirpated (extinct locally).
    We recognize that this definition of ``significant'' (a portion of 
the range of a species is ``significant'' if its contribution to the 
viability of the species is so important that without that portion, the 
species would be in danger of extinction) establishes a threshold that 
is relatively high. On the one hand, given that the consequences of 
finding a species to be endangered or threatened in an SPR would be 
listing the species throughout its entire range, it is important to use 
a threshold for ``significant'' that is robust. It would not be 
meaningful or appropriate to establish a very low threshold whereby a 
portion of the range can be considered ``significant'' even if only a 
negligible increase in extinction risk would result from its loss. 
Because nearly any portion of a species' range can be said to 
contribute some increment to a species' viability, use of such a low 
threshold would require us to impose restrictions and expend 
conservation resources disproportionately to conservation benefit: 
listing would be rangewide, even if only a portion of the range of 
minor conservation importance to the species is imperiled. On the other 
hand, it would be inappropriate to establish a threshold for 
``significant'' that is too high. This would be the case if the 
standard were, for example, that a portion of the range can be 
considered ``significant'' only if threats in that portion result in 
the entire species' being currently endangered or threatened. Such a 
high bar would not give the SPR phrase independent meaning, as the 
Ninth Circuit held in Defenders of Wildlife v. Norton, 258 F.3d 1136 
(9th Cir. 2001).
    The definition of ``significant'' used in this finding carefully 
balances these concerns. By setting a relatively high threshold, we 
minimize the degree to which restrictions will be imposed or resources 
expended that do not contribute substantially to species conservation. 
But we have not set the threshold so high that the phrase ``in a 
significant portion of its range'' loses independent meaning. 
Specifically, we have not set the threshold as high as it was under the 
interpretation presented by the Service in the Defenders litigation. 
Under that interpretation, the portion of the range would have to be so 
important that current imperilment there would mean that the species 
would be currently imperiled everywhere. Under the definition of 
``significant'' used in this finding, the portion of the range need not 
rise to such an exceptionally high level of biological significance. 
(We recognize that if the species is imperiled in a portion that rises 
to that level of biological significance, then we should conclude that 
the species is in fact imperiled throughout all of its range, and that 
we would not need to rely on the SPR language for such a listing.) 
Rather, under this interpretation we ask whether the species would be 
endangered everywhere without that portion, i.e., if that portion were 
completely extirpated. In other words, the portion of the range need 
not be so important that even the species being in danger of extinction 
in that portion would be sufficient to cause the species in the 
remainder of the range to be endangered; rather, the complete 
extirpation (in a hypothetical future) of the species in that portion 
would be required to cause the species in the remainder of the range to 
be endangered.
    The range of a species can theoretically be divided into portions 
in an infinite number of ways. However, there is no purpose to 
analyzing portions of the range that have no reasonable potential to be 
significant or to analyzing portions of the range in which there is no 
reasonable potential for the species to be endangered or threatened. To 
identify only those portions that warrant further consideration, we 
determine whether there is substantial information indicating that: (1) 
The portions may be ``significant,'' and (2) the species may be in 
danger of extinction there or likely to become so within the 
foreseeable future. Depending on the biology of the species, its range, 
and the threats it faces, it might be more efficient for us to address 
the significance question first or the status question first. Thus, if 
we determine that a portion of the range is not ``significant,'' we do 
not need to determine whether the species is endangered or threatened 
there; if we determine that the species is not endangered or threatened 
in a portion of its range, we do not need to determine if that portion 
is ``significant.'' In practice, a key part of the determination that a 
species is in danger of extinction in a significant portion of its 
range is whether the threats are geographically concentrated in some 
way. If the threats to the species are essentially uniform throughout 
its range, no portion is likely to warrant further consideration. 
Moreover, if any concentration of threats to the species occurs only in 
portions of the species' range that clearly would not meet the 
biologically based definition of ``significant,'' such portions will 
not warrant further consideration.
    We have determined that the longfin smelt does not face elevated 
threats in most portions of its range, and we have determined that the 
portion of the range that has concentrated threats (the Bay-Delta 
portion of the range) is a DPS. The rangewide five factor analysis for 
longfin smelt does not identify any portions of the species' range 
outside of Bay-Delta where threats are concentrated. Potential threats 
to the species are by and large uniform throughout its range with the 
exception of the Bay-Delta. Therefore, we will not further consider the 
Bay-Delta DPS as an SPR.

Listing Priority Number

    The Service 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 (genus with one species), full 
species, and subspecies (or equivalently, distinct population segments 
of vertebrates (DPS)). As a result of our analysis of the best 
available scientific and commercial information, we assign the Bay-
Delta DPS of longfin smelt a listing priority number of 3, based on the 
high magnitude and immediacy of threats. A number three listing 
priority is the highest listing allowed for a DPS under the current 
listing priority guidance. One or more of the threats discussed above 
are occurring (or we anticipate they will occur in the near future) 
within the range of the Bay-Delta DPS of the longfin smelt. These 
threats are ongoing and, in some cases (such as nonnative species), are 
considered irreversible. While we conclude that listing the Bay-Delta 
DPS of longfin smelt is warranted, an immediate proposal to list this 
species is precluded by other higher priority listings, 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 the cost

[[Page 19790]]

and relative priority of 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 listing proposal regulation or 
whether promulgation of such a proposal is 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 
``resubmitted'' petition findings 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 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. The median cost for preparing and publishing a 90-day finding 
is $39,276; for a 12-month finding, $100,690; for a proposed rule with 
critical habitat, $345,000; and for a final listing rule with critical 
habitat, $305,000.
    We cannot spend more than is appropriated for the Listing Program 
without violating the Anti-Deficiency Act (see 31 U.S.C. 
1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since 
then, Congress has placed a statutory cap on funds that 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, 105th Congress, 1st Session, July 1, 1997).
    Since FY 2002, the Service's budget has included a critical habitat 
subcap 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, 107th 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 some FYs since 2006, we have been able to use some of 
the critical habitat subcap funds to fund proposed listing 
determinations for high-priority candidate species. In other FYs, 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. At this time, for FY 2012, we plan to use some 
of the critical habitat subcap funds to fund proposed listing 
determinations.
    We 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. 
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 nationwide. 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 identified the availability of resources as the only basis 
for deferring the initiation of a rulemaking that is warranted. The 
Conference Report accompanying Public Law 97-304 (Endangered Species 
Act Amendments of 1982), which established the current statutory 
deadlines and the warranted-but-precluded finding, states that the 
amendments 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.'' Although that 
statement appeared to refer specifically to the ``to the maximum extent 
practicable'' limitation on the 90-day deadline for making a 
``substantial information'' finding, that finding is made at the point 
when the Service is deciding whether or not to commence a status review 
that will determine the degree of threats facing the species, and 
therefore the analysis underlying the statement is more relevant to the 
use of the warranted-but-precluded finding, which is made when the 
Service has already determined the degree of threats facing the species 
and is deciding whether or not to commence a rulemaking.
    In FY 2011, on April 15, 2011, Congress passed the Full-Year 
Continuing Appropriations Act (Pub. L. 112-10), which provided funding 
through September 30, 2011. The Service had $20,902,000 for the listing 
program. Of that, $9,472,000 was used for determinations of critical 
habitat for already listed species. Also $500,000 was appropriated for 
foreign species listings under the Act. The Service thus had 
$10,930,000 available 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. In FY 2010, 
the Service received many new petitions and a single petition to list 
404 species. The receipt of petitions for a large number of species is 
consuming the Service's listing funding that is not dedicated to 
meeting court-ordered commitments. Absent some ability to balance 
effort among listing duties under existing funding levels, the Service 
was only able to initiate a few new listing determinations for 
candidate species in FY 2011. For FY 2012, on December 17, 2011, 
Congress passed a continuing resolution which provides funding at the 
FY 2011 enacted level with a 1.5 percent rescission through December 
23, 2011 (Pub. L. 112-68). Until Congress appropriates funds for FY 
2012, we will fund listing work

[[Page 19791]]

based on the FY 2011 amount minus the 1.5 percent.
    In 2009, the responsibility for listing foreign species under the 
Act was transferred from the Division of Scientific Authority, 
International Affairs Program, to the Endangered Species Program. 
Therefore, starting in FY 2010, we used a portion of our funding to 
work on the actions described above for listing actions related to 
foreign species. In FY 2011, we anticipated using $1,500,000 for work 
on listing actions for foreign species, which reduces funding available 
for domestic listing actions; however, only $500,000 was allocated for 
this function. Although there are no foreign species issues included in 
our high-priority listing actions at this time, many actions have 
statutory or court-approved settlement deadlines, thus increasing their 
priority. The budget allocations for each specific listing action are 
identified in the Service's FY 2011 and FY 2012 Allocation Tables (part 
of our record).
    For the above reasons, funding a proposed listing determination for 
the Bay-Delta DPS of longfin smelt is precluded by court-ordered and 
court-approved settlement agreements, listing actions with absolute 
statutory deadlines, and work on proposed listing determinations for 
those candidate species with a higher listing priority (i.e., candidate 
species with LPNs of 1 or 2).
    Based on our September 21, 1983, guidelines for assigning an LPN 
for each candidate species (48 FR 43098), we have a significant number 
of species with a LPN of 2. Using these guidelines, we assign each 
candidate an LPN of 1 to 12, depending on the magnitude of threats 
(high or 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, or distinct 
population segment)). 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 have 
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, 
originally 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 and final listing rules for those 40 candidates, we 
apply the ranking criteria to the next group of candidates with LPNs of 
2 and 3 to determine the next set of highest priority candidate 
species. Finally, proposed rules for reclassification of threatened 
species to endangered species are lower priority, because as listed 
species, they are already afforded the protections of the Act and 
implementing regulations. However, for efficiency reasons, we may 
choose to work on a proposed rule to reclassify a species to endangered 
if we can combine this with work that is subject to a court-determined 
deadline.
    With our workload so much bigger than the amount of funds we have 
to accomplish it, it is important that we be as efficient as possible 
in our listing process. Therefore, as we work on proposed rules for the 
highest priority 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, we take into 
consideration the availability of staff resources when we determine 
which high-priority species will receive funding to minimize the amount 
of time and resources required to complete each listing action.
    As explained above, a determination that listing is warranted but 
precluded must also demonstrate that expeditious progress is being made 
to add and remove qualified species to and from the Lists of Endangered 
and Threatened Wildlife and Plants. As with our ``precluded'' finding, 
the evaluation of whether progress in adding qualified species to the 
Lists has been expeditious is a function of the resources available for 
listing and the competing demands for those funds. (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 in light of 
the resource available for delisting, which is funded by a separate 
line item in the budget of the Endangered Species Program. During FY 
2011, we completed delisting rules for three species.) Given the 
limited resources available for listing, we find that we made 
expeditious progress in FY 2011 and are making expeditious progress in 
FY 2012 in the Listing Program. This progress included preparing and 
publishing the following determinations:

                                  FY 2011 and FY 2012 Completed Listing Actions
----------------------------------------------------------------------------------------------------------------
         Publication date                    Title                 Actions                   FR Pages
----------------------------------------------------------------------------------------------------------------
10/6/2010........................  Endangered Status for     Proposed Listing     75 FR 61664-61690
                                    the Altamaha              Endangered.
                                    Spinymussel and
                                    Designation of Critical
                                    Habitat.
10/7/2010........................  12-month Finding on a     Notice of 12-month   75 FR 62070-62095
                                    Petition to list the      petition finding,
                                    Sacramento Splittail as   Not warranted.
                                    Endangered or
                                    Threatened.
10/28/2010.......................  Endangered Status and     Proposed Listing     75 FR 66481-66552
                                    Designation of Critical   Endangered
                                    Habitat for Spikedace     (uplisting).
                                    and Loach Minnow.
11/2/2010........................  90-Day Finding on a       Notice of 90-day     75 FR 67341-67343
                                    Petition to List the      Petition Finding,
                                    Bay Springs Salamander    Not substantial.
                                    as Endangered.
11/2/2010........................  Determination of          Final Listing        75 FR 67511-67550
                                    Endangered Status for     Endangered.
                                    the Georgia Pigtoe
                                    Mussel, Interrupted
                                    Rocksnail, and Rough
                                    Hornsnail and
                                    Designation of Critical
                                    Habitat.
11/2/2010........................  Listing the Rayed Bean    Proposed Listing     75 FR 67551-67583
                                    and Snuffbox as           Endangered.
                                    Endangered.
11/4/2010........................  12-Month Finding on a     Notice of 12-month   75 FR 67925-67944
                                    Petition to List          petition finding,
                                    Cirsium wrightii          Warranted but
                                    (Wright's Marsh           precluded.
                                    Thistle) as Endangered
                                    or Threatened.

[[Page 19792]]

 
12/14/2010.......................  Endangered Status for     Proposed Listing     75 FR 77801-77817
                                    Dunes Sagebrush Lizard.   Endangered.
12/14/2010.......................  12-month Finding on a     Notice of 12-month   75 FR 78029-78061
                                    Petition to List the      petition finding,
                                    North American            Warranted but
                                    Wolverine as Endangered   precluded.
                                    or Threatened.
12/14/2010.......................  12-Month Finding on a     Notice of 12-month   75 FR 78093-78146
                                    Petition to List the      petition finding,
                                    Sonoran Population of     Warranted but
                                    the Desert Tortoise as    precluded.
                                    Endangered or
                                    Threatened.
12/15/2010.......................  12-Month Finding on a     Notice of 12-month   75 FR 78513-78556
                                    Petition to List          petition finding,
                                    Astragalus microcymbus    Warranted but
                                    and Astragalus            precluded.
                                    schmolliae as
                                    Endangered or
                                    Threatened.
12/28/2010.......................  Listing Seven Brazilian   Final Listing        75 FR 81793-81815
                                    Bird Species as           Endangered.
                                    Endangered Throughout
                                    Their Range.
1/4/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 304-311
                                    Petition to List the      Petition Finding,
                                    Red Knot subspecies       Not substantial.
                                    Calidris canutus
                                    roselaari as Endangered.
1/19/2011........................  Endangered Status for     Proposed Listing     76 FR 3392-3420
                                    the Sheepnose and         Endangered.
                                    Spectaclecase Mussels.
2/10/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 7634-7679
                                    Petition to List the      petition finding,
                                    Pacific Walrus as         Warranted but
                                    Endangered or             precluded.
                                    Threatened.
2/17/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 9309-9318
                                    Petition To List the      Petition Finding,
                                    Sand Verbena Moth as      Substantial.
                                    Endangered or
                                    Threatened.
2/22/2011........................  Determination of          Final Listing        76 FR 9681-9692
                                    Threatened Status for     Threatened.
                                    the New Zealand-
                                    Australia Distinct
                                    Population Segment of
                                    the Southern Rockhopper
                                    Penguin.
2/22/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 9722-9733
                                    Petition to List          petition finding,
                                    Solanum conocarpum        Warranted but
                                    (marron bacora) as        precluded.
                                    Endangered.
2/23/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 9991-10003
                                    Petition to List          petition finding,
                                    Thorne's Hairstreak       Not warranted.
                                    Butterfly as Endangered.
2/23/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 10166-10203
                                    Petition to List          petition finding,
                                    Astragalus hamiltonii,    Warranted but
                                    Penstemon flowersii,      precluded & Not
                                    Eriogonum soredium,       Warranted.
                                    Lepidium ostleri, and
                                    Trifolium friscanum as
                                    Endangered or
                                    Threatened.
2/24/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 10299-10310
                                    Petition to List the      Petition Finding,
                                    Wild Plains Bison or      Not substantial.
                                    Each of Four Distinct
                                    Population Segments as
                                    Threatened.
2/24/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 10310-10319
                                    Petition to List the      Petition Finding,
                                    Unsilvered Fritillary     Not substantial.
                                    Butterfly as Threatened
                                    or Endangered.
3/8/2011.........................  12-Month Finding on a     Notice of 12-month   76 FR 12667-12683
                                    Petition to List the      petition finding,
                                    Mt. Charleston Blue       Warranted but
                                    Butterfly as Endangered   precluded.
                                    or Threatened.
3/8/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 12683-12690
                                    Petition to List the      Petition Finding,
                                    Texas Kangaroo Rat as     Substantial.
                                    Endangered or
                                    Threatened.
3/10/2011........................  Initiation of Status      Notice of Status     76 FR 13121-13122
                                    Review for Longfin        Review.
                                    Smelt.
3/15/2011........................  Withdrawal of Proposed    Proposed rule        76 FR 14210-14268
                                    Rule to List the Flat-    withdrawal.
                                    tailed Horned Lizard as
                                    Threatened.
3/15/2011........................  Proposed Threatened       Proposed Listing     76 FR 14126-14207
                                    Status for the            Threatened;
                                    Chiricahua Leopard Frog   Proposed
                                    and Proposed              Designation of
                                    Designation of Critical   Critical Habitat.
                                    Habitat.
3/22/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 15919-15932
                                    Petition to List the      petition finding,
                                    Berry Cave Salamander     Warranted but
                                    as Endangered.            precluded.
4/1/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 18138-18143
                                    Petition to List the      Petition Finding,
                                    Spring Pygmy Sunfish as   Substantial.
                                    Endangered.
4/5/2011.........................  12-Month Finding on a     Notice of 12-month   76 FR 18684-18701
                                    Petition to List the      petition finding,
                                    Bearmouth                 Not Warranted and
                                    Mountainsnail, Byrne      Warranted but
                                    Resort Mountainsnail,     precluded.
                                    and Meltwater Lednian
                                    Stonefly as Endangered
                                    or Threatened.
4/5/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 18701-18706
                                    Petition To List the      Petition Finding,
                                    Peary Caribou and         Substantial.
                                    Dolphin and Union
                                    population of the
                                    Barren-ground Caribou
                                    as Endangered or
                                    Threatened.
4/12/2011........................  Proposed Endangered       Proposed Listing     76 FR 20464-20488
                                    Status for the Three      Endangered;
                                    Forks Springsnail and     Proposed
                                    San Bernardino            Designation of
                                    Springsnail, and          Critical Habitat.
                                    Proposed Designation of
                                    Critical Habitat.
4/13/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 20613-20622
                                    Petition To List Spring   Petition Finding,
                                    Mountains Acastus         Substantial.
                                    Checkerspot Butterfly
                                    as Endangered.
4/14/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 20911-20918
                                    Petition to List the      Petition Finding,
                                    Prairie Chub as           Substantial.
                                    Threatened or
                                    Endangered.
4/14/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 20918-20939
                                    Petition to List Hermes   petition finding,
                                    Copper Butterfly as       Warranted but
                                    Endangered or             precluded.
                                    Threatened.
4/26/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 23256-23265
                                    Petition to List the      Petition Finding,
                                    Arapahoe Snowfly as       Substantial.
                                    Endangered or
                                    Threatened.

[[Page 19793]]

 
4/26/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 23265-23271
                                    Petition to List the      Petition Finding,
                                    Smooth-Billed Ani as      Not substantial.
                                    Threatened or
                                    Endangered.
5/12/2011........................  Withdrawal of the         Proposed Rule,       76 FR 27756-27799
                                    Proposed Rule to List     Withdrawal.
                                    the Mountain Plover as
                                    Threatened.
5/25/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 30082-30087
                                    Petition To List the      Petition Finding,
                                    Spot-tailed Earless       Substantial.
                                    Lizard as Endangered or
                                    Threatened.
5/26/2011........................  Listing the Salmon-       Final Listing        76 FR 30758-30780
                                    Crested Cockatoo as       Threatened.
                                    Threatened Throughout
                                    its Range with Special
                                    Rule.
5/31/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 31282-31294
                                    Petition to List Puerto   petition finding,
                                    Rican Harlequin           Warranted but
                                    Butterfly as Endangered.  precluded.
6/2/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 31903-31906
                                    Petition to Reclassify    Petition Finding,
                                    the Straight-Horned       Substantial.
                                    Markhor (Capra
                                    falconeri jerdoni) of
                                    Torghar Hills as
                                    Threatened.
6/2/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 31920-31926
                                    Petition to List the      Petition Finding,
                                    Golden-winged Warbler     Substantial.
                                    as Endangered or
                                    Threatened.
6/7/2011.........................  12-Month Finding on a     Notice of 12-month   76 FR 32911-32929
                                    Petition to List the      petition finding,
                                    Striped Newt as           Warranted but
                                    Threatened.               precluded.
6/9/2011.........................  12-Month Finding on a     Notice of 12-month   76 FR 33924-33965
                                    Petition to List          petition finding,
                                    Abronia ammophila,        Not Warranted and
                                    Agrostis rossiae,         Warranted but
                                    Astragalus proimanthus,   precluded.
                                    Boechera (Arabis)
                                    pusilla, and Penstemon
                                    gibbensii as Threatened
                                    or Endangered.
6/21/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 36049-36053
                                    Petition to List the      Petition Finding,
                                    Utah Population of the    Not substantial.
                                    Gila Monster as an
                                    Endangered or a
                                    Threatened Distinct
                                    Population Segment.
6/21/2011........................  Revised 90-Day Finding    Notice of 90-day     76 FR 36053-36068
                                    on a Petition To          Petition Finding,
                                    Reclassify the Utah       Not substantial.
                                    Prairie Dog From
                                    Threatened to
                                    Endangered.
6/28/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 37706-37716
                                    Petition to List          petition finding,
                                    Castanea pumila var.      Not warranted.
                                    ozarkensis as
                                    Threatened or
                                    Endangered.
6/29/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 38095-38106
                                    Petition to List the      Petition Finding,
                                    Eastern Small-Footed      Substantial.
                                    Bat and the Northern
                                    Long-Eared Bat as
                                    Threatened or
                                    Endangered.
6/30/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 38504-38532
                                    Petition to List a        petition finding,
                                    Distinct Population       Not warranted.
                                    Segment of the Fisher
                                    in Its United States
                                    Northern Rocky Mountain
                                    Range as Endangered or
                                    Threatened with
                                    Critical Habitat.
7/12/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 40868-40871
                                    Petition to List the      Petition Finding,
                                    Bay Skipper as            Substantial.
                                    Threatened or
                                    Endangered.
7/19/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 42631-42654
                                    Petition to List Pinus    petition finding,
                                    albicaulis as             Warranted but
                                    Endangered or             precluded.
                                    Threatened with
                                    Critical Habitat.
7/19/2011........................  Petition To List Grand    Notice of 12-month   76 FR 42654-42658
                                    Canyon Cave               petition finding,
                                    Pseudoscorpion.           Not warranted.
7/26/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 44547-44564
                                    Petition to List the      petition finding,
                                    Giant Palouse Earthworm   Not warranted.
                                    (Drilolerius
                                    americanus) as
                                    Threatened or
                                    Endangered.
7/26/2011........................  12-month Finding on a     Notice of 12-month   76 FR 44566-44569
                                    Petition to List the      petition finding,
                                    Frigid Ambersnail as      Not warranted.
                                    Endangered.
7/27/2011........................  Determination of          Final Listing        76 FR 45054-45075
                                    Endangered Status for     Endangered,
                                    Ipomopsis polyantha       Threatened.
                                    (Pagosa Skyrocket) and
                                    Threatened Status for
                                    Penstemon debilis
                                    (Parachute Beardtongue)
                                    and Phacelia submutica
                                    (DeBeque Phacelia).
7/27/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 45130-45162
                                    Petition to List the      petition finding,
                                    Gopher Tortoise as        Warranted but
                                    Threatened in the         precluded.
                                    Eastern Portion of its
                                    Range.
8/2/2011.........................  Proposed Endangered       Proposed Listing     76 FR 46218-46234
                                    Status for the            Endangered.
                                    Chupadera Springsnail
                                    (Pyrgulopsis
                                    chupaderae) and
                                    Proposed Designation of
                                    Critical Habitat.
8/2/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 46238-46251
                                    Petition to List the      Petition Finding,
                                    Straight Snowfly and      Not substantial.
                                    Idaho Snowfly as
                                    Endangered.
8/2/2011.........................  12-Month Finding on a     Notice of 12-month   76 FR 46251-46266
                                    Petition to List the      petition finding,
                                    Redrock Stonefly as       Not warranted.
                                    Endangered or
                                    Threatened.
8/2/2011.........................  Listing 23 Species on     Proposed Listing     76 FR 46362-46594
                                    Oahu as Endangered and    Endangered.
                                    Designating Critical
                                    Habitat for 124 Species.
8/4/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 47123-47133
                                    Petition To List Six      Petition Finding,
                                    Sand Dune Beetles as      Not substantial
                                    Endangered or             and substantial.
                                    Threatened.
8/9/2011.........................  Endangered Status for     Final Listing        76 FR 48722-48741
                                    the Cumberland Darter,    Endangered.
                                    Rush Darter,
                                    Yellowcheek Darter,
                                    Chucky Madtom, and
                                    Laurel Dace.

[[Page 19794]]

 
8/9/2011.........................  12-Month Finding on a     Notice of 12-month   76 FR 48777-48788
                                    Petition to List the      petition finding,
                                    Nueces River and          Not warranted.
                                    Plateau Shiners as
                                    Threatened or
                                    Endangered.
8/9/2011.........................  Four Foreign Parrot       Proposed Listing     76 FR 49202-49236
                                    Species [crimson          Endangered and
                                    shining parrot, white     Threatened; Notice
                                    cockatoo, Philippine      of 12-month
                                    cockatoo, yellow-         petition finding,
                                    crested cockatoo].        Not warranted.
8/10/2011........................  Proposed Listing of the   Proposed Listing     76 FR 49408-49412
                                    Miami Blue Butterfly as   Endangered
                                    Endangered, and           Similarity of
                                    Proposed Listing of the   Appearance.
                                    Cassius Blue, Ceraunus
                                    Blue, and Nickerbean
                                    Blue Butterflies as
                                    Threatened Due to
                                    Similarity of
                                    Appearance to the Miami
                                    Blue Butterfly.
8/10/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 49412-49417
                                    Petition To List the      Petition Finding,
                                    Saltmarsh Topminnow as    Substantial.
                                    Threatened or
                                    Endangered Under the
                                    Endangered Species Act.
8/10/2011........................  Emergency Listing of the  Emergency Listing    76 FR 49542-49567
                                    Miami Blue Butterfly as   Endangered and
                                    Endangered, and           Similarity of
                                    Emergency Listing of      Appearance.
                                    the Cassius Blue,
                                    Ceraunus Blue, and
                                    Nickerbean Blue
                                    Butterflies as
                                    Threatened Due to
                                    Similarity of
                                    Appearance to the Miami
                                    Blue Butterfly.
8/11/2011........................  Listing Six Foreign       Final Listing        76 FR 50052-50080
                                    Birds as Endangered       Endangered.
                                    Throughout Their Range.
8/17/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 50971-50979
                                    Petition to List the      Petition Finding,
                                    Leona's Little Blue       Substantial.
                                    Butterfly as Endangered
                                    or Threatened.
9/01/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 54423-54425
                                    Petition to List All      Petition Finding,
                                    Chimpanzees (Pan          Substantial.
                                    troglodytes) as
                                    Endangered.
9/6/2011.........................  12-Month Finding on Five  Notice of 12-month   76 FR 55170-55203
                                    Petitions to List Seven   petition finding,
                                    Species of Hawaiian       Warranted but
                                    Yellow-faced Bees as      precluded.
                                    Endangered.
9/8/2011.........................  12-Month Petition         Notice of 12-month   76 FR 55623-55638
                                    Finding and Proposed      petition finding,
                                    Listing of                Warranted;
                                    Arctostaphylos            Proposed Listing
                                    franciscana as            Endangered.
                                    Endangered.
9/8/2011.........................  90-Day Finding on a       Notice of 90-day     76 FR 55638-55641
                                    Petition To List the      Petition Finding,
                                    Snowy Plover and          Not substantial.
                                    Reclassify the
                                    Wintering Population of
                                    Piping Plover.
9/13/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 56381-56391
                                    Petition To List the      Petition Finding,
                                    Franklin's Bumble Bee     Substantial.
                                    as Endangered.
9/13/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 56608-56630
                                    Petition to List 42       Petition Finding,
                                    Great Basin and Mojave    Substantial and
                                    Desert Springsnails as    Not substantial.
                                    Threatened or
                                    Endangered with
                                    Critical Habitat.
9/21/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 58650-58680
                                    Petition to List Van      petition finding,
                                    Rossem's Gull-billed      Not warranted.
                                    Tern as Endangered or
                                    Threatened.
9/22/2011........................  Determination of          Final Listing        76 FR 58954-58998
                                    Endangered Status for     Endangered.
                                    Casey's June Beetle and
                                    Designation of Critical
                                    Habitat.
9/27/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 59623-59634
                                    Petition to List the      petition finding,
                                    Tamaulipan Agapema,       Not warranted.
                                    Sphingicampa blanchardi
                                    (no common name), and
                                    Ursia furtiva (no
                                    common name) as
                                    Endangered or
                                    Threatened.
9/27/2011........................  Partial 90-Day Finding    Notice of 90-day     76 FR 59836-59862
                                    on a Petition to List     Petition Finding,
                                    404 Species in the        Substantial.
                                    Southeastern United
                                    States as Endangered or
                                    Threatened With
                                    Critical Habitat.
9/29/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 60431-60444
                                    Petition to List the      Petition Finding,
                                    American Eel as           Substantial.
                                    Threatened.
10/4/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 61298-61307
                                    Petition to List the      petition finding,
                                    Lake Sammamish Kokanee    Not warranted.
                                    Population of
                                    Oncorhynchus nerka as
                                    an Endangered or
                                    Threatened Distinct
                                    Population Segment.
10/4/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 61307-61321
                                    Petition to List          petition finding,
                                    Calopogon oklahomensis    Not warranted.
                                    as Threatened or
                                    Endangered.
10/4/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 61321-61330
                                    Petition To List the      petition finding,
                                    Amargosa River            Not warranted.
                                    Population of the
                                    Mojave Fringe-toed
                                    Lizard as an Endangered
                                    or Threatened Distinct
                                    Population Segment.
10/4/2011........................  Endangered Status for     Proposed Listing     76 FR 61482-61529
                                    the Alabama Pearlshell,   Endangered.
                                    Round Ebonyshell,
                                    Southern Sandshell,
                                    Southern Kidneyshell,
                                    and Choctaw Bean, and
                                    Threatened Status for
                                    the Tapered Pigtoe,
                                    Narrow Pigtoe, and
                                    Fuzzy Pigtoe; with
                                    Critical Habitat.
10/4/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 61532-61554
                                    Petition To List 10       Petition Finding,
                                    Subspecies of Great       Substantial and
                                    Basin Butterflies as      Not substantial.
                                    Threatened or
                                    Endangered with
                                    Critical Habitat.

[[Page 19795]]

 
10/5/2011........................  90-Day Finding on a       Notice of 90-day     76 FR 61826-61853
                                    Petition to List 29       Petition Finding,
                                    Mollusk Species as        Substantial and
                                    Threatened or             Not substantial.
                                    Endangered With
                                    Critical Habitat.
10/5/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 61856-61894
                                    Petition to List the      petition finding,
                                    Cactus Ferruginous        Not warranted.
                                    Pygmy-Owl as Threatened
                                    or Endangered with
                                    Critical Habitat.
10/5/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 61896-61931
                                    Petition to List the      petition finding,
                                    Northern Leopard Frog     Not warranted.
                                    in the Western United
                                    States as Threatened.
10/6/2011........................  Endangered Status for     Final Listing        76 FR 61956-61978
                                    the Ozark Hellbender      Endangered.
                                    Salamander.
10/6/2011........................  Red-Crowned Parrot......  Notice of 12-month   76 FR 62016-62034
                                                              petition finding,
                                                              Warranted but
                                                              precluded.
10/6/2011........................  12-Month Finding on a     Notice of 12-month   76FR 62166-62212
                                    Petition to List Texas    petition finding,
                                    Fatmucket, Golden Orb,    Warranted but
                                    Smooth Pimpleback,        precluded.
                                    Texas Pimpleback, and
                                    Texas Fawnsfoot as
                                    Threatened or
                                    Endangered.
10/6/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 62214-62258
                                    Petition to List the      petition finding,
                                    Mohave Ground Squirrel    Not warranted.
                                    as Endangered or
                                    Threatened.
10/6/2011........................  Partial 90-Day Finding    Notice of 90-day     76 FR 62260-62280
                                    on a Petition to List     Petition Finding,
                                    404 Species in the        Not substantial.
                                    Southeastern United
                                    States as Threatened or
                                    Endangered With
                                    Critical Habitat.
10/7/2011........................  12-Month Finding on a     Notice of 12-month   76 FR 62504-62565
                                    Petition to List the      petition finding,
                                    Black-footed Albatross    Not warranted.
                                    as Endangered or
                                    Threatened.
10/11/2011.......................  12-Month Finding on a     Notice of 12-month   76 FR 62722-62740
                                    Petition to List          petition finding,
                                    Amoreuxia gonzalezii,     Not warranted.
                                    Astragalus hypoxylus,
                                    and Erigeron piscaticus
                                    as Endangered or
                                    Threatened.
10/11/2011.......................  12-Month Finding on a     Notice of 12-month   76 FR 62740-62754
                                    Petition and Proposed     petition finding,
                                    Rule to List the Yellow-  Warranted Propose
                                    Billed Parrot.            Listing,
                                                              threatened.
10/11/2011.......................  12-Month Finding on a     Notice of 12-month   76 FR 62900-62926
                                    Petition to List the      petition finding,
                                    Tehachapi Slender         Not warranted.
                                    Salamander as
                                    Endangered or
                                    Threatened.
10/11/2011.......................  Endangered Status for     Final Listing        76 FR 62928-62960
                                    the Altamaha              Endangered.
                                    Spinymussel and
                                    Designation of Critical
                                    Habitat.
10/11/2011.......................  12-Month Finding for a    Notice of 12-month   76 FR 63094-63115
                                    Petition to List the      petition finding,
                                    California Golden Trout   Not warranted.
                                    as Endangered.
10/12/2011.......................  12-Month Petition         Notice of 12-month   76 FR 63420-63442
                                    Finding, Proposed         petition finding,
                                    Listing of Coqu[iacute]   Warranted;
                                    Llanero as Endangered,    Proposed Listing
                                    and Designation of        Endangered.
                                    Critical Habitat for
                                    Coqu[iacute] Llanero.
10/12/2011.......................  12-Month Finding on a     Notice of 12-month   76 FR 63444-63478
                                    Petition to List          petition finding,
                                    Northern Leatherside      Not warranted.
                                    Chub as Endangered or
                                    Threatened.
10/12/2011.......................  12-Month Finding on a     Notice of 12-month   76 FR 63480-63508
                                    Petition to List Two      petition finding,
                                    South American Parrot     Not warranted.
                                    Species.
10/13/2011.......................  12-Month Finding on a     Notice of 12-month   76 FR 63720-63762
                                    Petition to List a        petition finding,
                                    Distinct Population       Warranted but
                                    Segment of the Red Tree   precluded.
                                    Vole as Endangered or
                                    Threatened.
12/19/2011.......................  90-Day Finding on a       Notice of 90-day     76 FR 78601-78609
                                    Petition To List the      Petition Finding,
                                    Western Glacier           Substantial.
                                    Stonefly as Endangered
                                    With Critical Habitat.
1/3/2012.........................  90-Day Finding on a       Notice of 90-day     77 FR 45-52
                                    Petition to List Sierra   Petition Finding,
                                    Nevada Red Fox as         Substantial.
                                    Endangered or
                                    Threatened.
1/5/2012.........................  Listing Two Distinct      Proposed             77 FR 666-697
                                    Population Segments of    Reclassification.
                                    Broad-Snouted Caiman as
                                    Endangered or
                                    Threatened and a
                                    Special Rule.
1/12/2012........................  90-Day Finding on a       Notice of 90-day     77 FR 1900-1908
                                    Petition To List the      Petition Finding,
                                    Humboldt Marten as        Substantial.
                                    Endangered or
                                    Threatened.
1/24/2012........................  90-Day Finding on a       Notice of 90-day     77 FR 3423-3432
                                    Petition to List the      Petition Finding,
                                    `I'iwi as Endangered or   Substantial.
                                    Threatened.
2/1/2012.........................  90-Day Finding on a       Notice of 90-day     77 FR 4973-4980
                                    Petition to List the      Petition Finding,
                                    San Bernardino Flying     Substantial.
                                    Squirrel as Endangered
                                    or Threatened With
                                    Critical Habitat.
2/14/2012........................  Determination of          Final Listing        77 FR 8632-8665
                                    Endangered Status for     Endangered.
                                    the Rayed Bean and
                                    Snuffbox Mussels
                                    Throughout Their Ranges.
----------------------------------------------------------------------------------------------------------------

    Our expeditious progress also includes work on listing actions that 
we funded in previous fiscal years and in FY 2012 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. We are implementing a work plan that

[[Page 19796]]

establishes a framework and schedule for resolving by September 30, 
2016, the status of all of the species that the Service had determined 
to be qualified as of the 2010 Candidate Notice of Review. The Service 
submitted such a work plan to the U.S. District Court for the District 
of Columbia in In re Endangered Species Act Section 4 Deadline 
Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D. D.C. May 10, 
2011), and obtained the court's approval. The Service had already begun 
to implement that work plan last FY and many of these initial actions 
in our work plan include work on proposed rules for candidate species 
with an LPN of 2 or 3. As discussed above, selection of these species 
is 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, when compared to preparing 
separate proposed rules for each of them in the future. Actions in the 
lower section of the table are being conducted to meet statutory 
timelines, that is, timelines required under the Act.

   Actions Funded in Previous FYs and in FY 2012 But Not Yet Completed
------------------------------------------------------------------------
             Species                               Action
------------------------------------------------------------------------
           Actions Subject to Court Order/Settlement Agreement
------------------------------------------------------------------------
4 parrot species (military macaw,  12-month petition finding.
 yellow-billed parrot, scarlet
 macaw).\5\
Longfin smelt....................  12-month petition finding.
20 Maui-Nui candidate species \2\  Proposed listing.
 (17 plants, 3 tree snails) (14
 with LPN = 2, 2 with LPN = 3, 3
 with LPN = 8).
Umtanum buckwheat (LPN = 2) and    Proposed listing.
 white bluffs bladderpod (LPN =
 9).\4\
Grotto sculpin (LPN = 2) \4\.....  Proposed listing.
2 Arkansas mussels (Neosho mucket  Proposed listing.
 (LPN = 2) & Rabbitsfoot (LPN =
 9)).\4\
Diamond darter (LPN = 2) \4\.....  Proposed listing.
Gunnison sage-grouse (LPN = 2)     Proposed listing.
 \4\.
Coral Pink Sand Dunes Tiger        Proposed listing.
 Beetle (LPN = 2) \5\.
Lesser prairie chicken (LPN = 2).  Proposed listing.
4 Texas salamanders (Austin blind  Proposed listing.
 salamander (LPN = 2), Salado
 salamander (LPN = 2), Georgetown
 salamander (LPN = 8), Jollyville
 Plateau (LPN = 8)).\3\
West Texas aquatics (Gonzales      Proposed listing.
 Spring Snail (LPN = 2), Diamond
 Y springsnail (LPN = 2), Phantom
 springsnail (LPN = 2), Phantom
 Cave snail (LPN = 2), Diminutive
 amphipod (LPN = 2)).\3\
2 Texas plants (Texas golden       Proposed listing.
 gladecress (Leavenworthia
 texana) (LPN = 2), Neches River
 rose-mallow (Hibiscus dasycalyx)
 (LPN = 2)).\3\
4 AZ plants (Acuna cactus          Proposed listing.
 (Echinomastus erectocentrus var.
 acunensis) (LPN = 3), Fickeisen
 plains cactus (Pediocactus
 peeblesianus fickeiseniae) (LPN
 = 3), Lemmon fleabane (Erigeron
 lemmonii) (LPN = 8), Gierisch
 mallow (Sphaeralcea gierischii)
 (LPN = 2)).\5\
FL bonneted bat (LPN = 2).\3\      Proposed listing.
3 Southern FL plants (Florida      Proposed listing.
 semaphore cactus (Consolea
 corallicola) (LPN = 2),
 shellmound applecactus (Harrisia
 (= Cereus) aboriginum
 (=gracilis)) (LPN = 2), Cape
 Sable thoroughwort (Chromolaena
 frustrata) (LPN = 2)).\5\
21 Big Island (HI) species \5\     Proposed listing.
 (includes 8 candidate species--6
 plants & 2 animals; 4 with LPN =
 2, 1 with LPN = 3, 1 with LPN =
 4, 2 with LPN = 8)
12 Puget Sound prairie species (9  Proposed listing.
 subspecies of pocket gopher
 (Thomomys mazama ssp.) (LPN =
 3), streaked horned lark (LPN =
 3), Taylor's checkerspot (LPN =
 3), Mardon skipper (LPN =
 8)).\3\
2 TN River mussels (fluted         Proposed listing.
 kidneyshell (LPN = 2), slabside
 pearlymussel (LPN = 2)).\5\
Jemez Mountain salamander (LPN =   Proposed listing.
 2) \5\.
------------------------------------------------------------------------
                    Actions with Statutory Deadlines
------------------------------------------------------------------------
5 Bird species from Colombia and   Final listing determination.
 Ecuador.
Queen Charlotte goshawk..........  Final listing determination.
6 Birds from Peru & Bolivia......  Final listing determination.
Loggerhead sea turtle (assist      Final listing determination.
 National Marine Fisheries
 Service) \5\.
Platte River caddisfly (from 206   12-month petition finding.
 species petition) \5\.
Ashy storm-petrel \5\............  12-month petition finding.
Honduran emerald.................  12-month petition finding.
Eagle Lake trout \1\.............  90-day petition finding.
Spring Mountains checkerspot       90-day petition finding.
 butterfly.
Aztec gilia \5\..................  90-day petition finding.
White-tailed ptarmigan \5\.......  90-day petition finding.
Bicknell's thrush \5\............  90-day petition finding.
Sonoran talussnail \5\...........  90-day petition finding.
2 AZ Sky Island plants             90-day petition finding.
 (Graptopetalum bartrami & Pectis
 imberbis) \5\.
Desert massasauga................  90-day petition finding.
Boreal toad (eastern or southern   90-day petition finding.
 Rocky Mtn population) \5\.
Alexander Archipelago wolf \5\...  90-day petition finding.
Eastern diamondback rattlesnake..  90-day petition finding.
------------------------------------------------------------------------
\1\ Funds for listing actions for these species were provided in
  previous FYs.
\2\ Although funds for these high-priority listing actions were provided
  in FY 2008 or 2009, due to the complexity of these actions and
  competing priorities, these actions are still being developed.
\3\ Partially funded with FY 2010 funds and FY 2011 funds.
\4\ Funded with FY 2010 funds.
\5\ Funded with FY 2011 funds.


[[Page 19797]]

    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.
    The Bay-Delta DPS of longfin smelt will be added to the list of 
candidate species upon publication of this 12-month finding. We will 
continue to evaluate this DPS as new information becomes available. 
Continuing review will determine if a change in status is warranted, 
including the need to make prompt use of emergency listing procedures.
    We intend that any proposed listing determination for the Bay-Delta 
DPS of longfin 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 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 San Francisco Bay-
Delta Fish and Wildlife Office (see ADDRESSES section).

Authors

    The primary authors of this notice are the staff members of the San 
Francisco Bay-Delta Fish and Wildlife Office.

Authority

    The authority for this section is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 13, 2012.
Gary D. Frazer,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2012-7198 Filed 3-30-12; 8:45 am]
BILLING CODE 4310-55-P