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biphenyls (PCBs), Reporting and SUPPLEMENTARY INFORMATION: in the November 26, 1996, Recovery recordkeeping requirements. Plan for the Sacramento–San Joaquin Background Dated: March 31, 2010. Delta Native Fishes (Service 1996, pp. 1- Section 4(b)(3)(A) of the Endangered Lisa P. Jackson, 195). We completed a 5–year status Act of 1973, as amended (Act) review of the delta smelt on March 31, Administrator. (16 U.S.C. 1531 et seq.) requires that, for 2004 (Service 2004, pp. 1-50). [FR Doc. 2010–7751 Filed 4–6–10; 8:45 am] any petition to add a species to, remove On March 9, 2006, we received a BILLING CODE 6560–50–S a species from, or reclassify a species on petition to reclassify the listing status of one of the Lists of Endangered and the delta smelt, a threatened species, to Threatened Wildlife and Plants, we first endangered on an emergency basis. We DEPARTMENT OF THE INTERIOR make a determination whether the sent a letter to the petitioners dated June petition presents substantial scientific 20, 2006, stating that we would not be Fish and Wildlife Service or commercial information indicating able to address their petition at that time that the petitioned action may be because further action on the petition 50 CFR Part 17 warranted. To the maximum extent was precluded by court orders and practicable, we make this determination [Docket No. FWS-R8-ES-2008-0067] settlement agreements for other listing within 90 days of receipt of the petition, [MO 92210-0-0008-B2] actions that required us to use nearly all and publish the finding promptly in the of our listing funds for fiscal year 2006. Endangered and Threatened Wildlife Federal Register. We also stated in our June 20, 2006, If we find the petition presents and Plants; 12-Month Finding on a letter that we had evaluated the substantial information, section Petition to Reclassify the Delta Smelt immediacy of possible threats to the 4(b)(3)(A) of the Act requires us to From Threatened to Endangered delta smelt, and had determined that an commence a status review of the Throughout Its Range emergency reclassification was not species, and section 4(b)(3)(B) of the Act warranted at that time. AGENCY: Fish and Wildlife Service, requires us to make a second finding, On July 10, 2008, we published a 90– Interior. this one within 12 months of the date day finding that the petition presented ACTION: Notice of 12–month petition of receipt of the petition, on whether the substantial scientific information to finding. petitioned action is: (a) Not warranted, indicate that reclassifying the delta (b) warranted, or (c) warranted, but the smelt may be warranted (73 FR 39639). SUMMARY: We, the U.S. Fish and immediate proposal of a regulation We announced the initiation of a status Wildlife Service (Service), announce a implementing the petitioned action is review at that time, and requested 12–month finding on a petition to precluded by other pending proposals to comments and information from the reclassify the delta smelt (Hypomesus determine whether any species is public on or before September 8, 2008. transpacificus) under the Endangered threatened or endangered, and We reopened the comment period on Species Act of 1973, as amended. After expeditious progress is being made to December 9, 2008, and that comment review of all available scientific and add or remove qualified species from period closed February 9, 2009 (73 FR commercial information, we find that the Lists of Endangered and Threatened 74674). reclassifying the delta smelt from a Wildlife and Plants. We must publish threatened to an is these 12–month findings in the Federal Species Information warranted, but precluded by other Register. Description and higher priority listing actions. We will Species for which listing is warranted develop a proposed rule to reclassify but precluded are considered to be Delta smelt are slender-bodied fish, this species as our priorities allow. ‘‘candidates’’ for listing. Section generally about 60 to 70 millimeters (mm) (2 to 3 inches (in)) long, although DATES: 4(b)(3)(C) of the Act requires that a The finding announced in this they may reach lengths of up to 120 mm document was made on April 7, 2010. petition for which the requested action is found to be warranted but precluded (4.7 in) (Moyle 2002, p. 227). Delta ADDRESSES: This finding is available on be treated as though resubmitted on the smelt are in the Osmeridae family the Internet at http:// date of such finding, i.e., requiring a (smelts) (Stanley et al. 1995, p. 390). www.regulations.gov at Docket Number subsequent finding to be made within Live fish are nearly translucent and FWS–R8–ES–2008–0067. Supporting 12 months. Each subsequent 12–month have a steely blue sheen to their sides documentation we used in preparing finding is also to be published in the (Moyle 2002, p. 227). Delta smelt feed this finding is available for public Federal Register. We typically publish primarily on small planktonic (free- inspection, by appointment, during these findings in our Candidate Notice floating) crustaceans, and occasionally normal business hours at the U.S. Fish of Review (CNOR). Our most recent on insect larvae (Moyle 2002, p. 228). and Wildlife Service, Sacramento Fish CNOR was published on November 9, Delta smelt usually aggregate into loose and Wildlife Office, 2800 Cottage Way, 2009 (74 FR 57804). schools, but their discontinuous stroke- W-2605, Sacramento, CA 95825. Please and-glide swimming behavior likely submit any new information, materials, Previous Federal Action makes schooling difficult (Moyle 2002, comments, or questions concerning this We were originally petitioned to list p. 228). finding to the above address. the delta smelt as endangered on June The delta smelt is one of six species FOR FURTHER INFORMATION CONTACT: 26, 1990. We proposed the species as currently recognized in the Hypomesus Mary Grim, San Francisco Bay-Delta threatened and proposed the genus (Bennett 2005, p. 8). Within the Fish and Wildlife Office, 650 Capitol designation of critical on genus, delta smelt is most closely Mall, 5th Floor, Sacramento, CA 95814; October 3, 1991 (56 FR 50075). We related to surf smelt (H. pretiosis), a by telephone at 916-930-5634; or by listed the species as threatened on species common along the western coast facsimile at 916-414-6462. If you use a March 5, 1993 (58 FR 12854), and we of North America. In contrast, delta telecommunications device for the deaf designated critical habitat on December smelt is a comparatively distant relation (TDD), call the Federal Information 19, 1994 (59 FR 65256). The delta smelt to the wakasagi (H. nipponensis), which Relay Service (FIRS) at 800-877-8339. was one of eight fish species addressed was introduced into Central Valley

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reservoirs in 1959, and may be measured-roughly one and a half freshwater areas where spawning is seasonally sympatric with delta smelt in percent of the 1980 index level (CDFG thought to occur. Most delta smelt die the estuary (Trenham et al. 1998, p. 2008, p. 2). after spawning, but a small contingent 417). Allozyme studies have of adults survives and can spawn in Habitat and Life History demonstrated that wakasagi and delta their second year (Moyle 2002, p. 228). smelt are genetically distinct and Studies indicate that delta smelt Foraging Ecology presumably derived from different require specific environmental marine ancestors (Stanley et al. 1995). conditions (freshwater flow, water Delta smelt feed primarily on small Genetic characterization of delta smelt, quality) and habitat types (shallow open planktonic (free-floating) crustaceans, longfin smelt, and wakasagi is presently waters) within the estuary for migration, and occasionally on insect larvae under investigation, using contemporary spawning, egg incubation, rearing, and (Moyle 2002, p. 228). Historically, the methodologies. larval and juvenile transport from main prey of delta smelt was the spawning to rearing (Moyle copepod Eurytemora affinis and the Distribution and Abundance 2002, pp. 228-229). Delta smelt are a mysid shrimp Neomysis mercedis. The Delta smelt are endemic to (native and euryhaline (tolerate a wide range of slightly larger copepod restricted to) the San Francisco Bay and salinities) species; however, they rarely Pseudodiaptomus forbesi has replaced Sacramento–San Joaquin Delta Estuary occur in water with more than 10-12 E. affinis as a major prey source of delta (Delta) in California, found only from parts per thousand salinity (about one- smelt since its introduction into the San the San Pablo Bay upstream through the third seawater). Delta smelt tolerate Francisco Bay–Delta. Two other Delta in Contra Costa, Sacramento, San temperatures ranging from 7.5 0C to 25.4 copepod species, Limnoithona Joaquin, Solano, and Yolo Counties 0C (45 to 78 0F) in the laboratory tetraspina and Acartiella sinenisi, have (Moyle 2002, p. 227). Their historical (Swanson et al. 2000, p. 386, Table 1), become abundant since their range is thought to have extended from but may be found in warmer waters in introduction to the San Francisco Bay– San Pablo Bay upstream to at least the the Delta. Feyrer at al. (2007, p. 728) Delta in the mid 1990s. Delta smelt eat city of Sacramento on the Sacramento found that relative abundance of delta these introduced copepods, but P. River and the city of Mossdale on the smelt was related to fall salinity and forbesi remains a dominant prey item San Joaquin River. They were once one turbidity (water clarity). Delta smelt (Baxter et al. 2008, p. 22). The diets of of the most common pelagic (living in probably evolved within the naturally larval delta smelt are limited to larval open water away from the bottom) fish turbid (silt and particulate-laden) copepods (Nobriga 2002, p. 156). As in the upper Sacramento–San Joaquin environment of the Delta and likely rely mentioned previously, delta smelt are Estuary (Moyle 2002, p. 230). on certain levels of background thought to require a turbid environment Population estimates are not possible turbidity at different life stages and for for efficient, successful foraging. to obtain for this species (Herbold 1996, certain behaviors. Laboratory studies Summary of Factors Affecting the p. 1). A relative abundance index has found that delta smelt larval feeding Species been developed using various net increased with increased turbidity surveys as well as counts of individuals (Baskerville-Bridges et al. 2004, p. 222). Section 4 of the Act (16 U.S.C. 1533), entrained by (drawn into) Federal and Although spawning has not been and implementing regulations (50 CFR State water export facilities (Bennett observed in the wild, spawning location part 424), set forth the procedures for 2005, p. 5), and population assessments and timing has been inferred from the adding species to the Federal Lists of have been based on abundance index collection of larvae in sloughs and Endangered and Threatened Wildlife trends. Based on those indices, shallow edge-waters of channels in the and Plants. Under section 4(a)(1) of the significant changes in delta smelt upper Delta and in Montezuma Slough Act , a species may be determined to be abundance occurred in 1975-76, 1980- near Suisin Bay (Wang 1991, pp. 11-12). endangered or threatened based on any 81, and 1998-99 (Manly and Chotkowski Spawning is believed to occur from late of the following five factors: (1) The 2006, p. 602). The 1980-1981 abundance January through late June or early July present or threatened destruction, index decline was one of the factors that at water temperatures ranging from 7 to modification, or curtailment of its resulted in listing delta smelt as a 15 0C (45 to 59 0F) (Moyle 2002, p. 229). habitat or range; (2) overutilization for threatened species in 1993 (58 FR In the laboratory, spawning has been commercial, recreational, scientific, or 12854; Moyle 2002, p. 230; CDFG 2008, observed to occur between 12 and 22 0C educational purposes; (3) disease or p. 1). From 1991 to 2001, abundance (54 and 72 0F ) (Bennett 2005, p. 13). In predation; (4) the inadequacy of existing index trends fluctuated wildly. In 2002, laboratory conditions, eggs typically regulatory mechanisms; or (5) other delta smelt and three other pelagic Delta hatch after 9 to 14 days and larvae begin natural or manmade factors affecting its fishes seemed to decline significantly, feeding 5 to 6 days later (Mager et al. continued existence. In making this with delta smelt abundance indices 2004, p. 172, Table 1). Larvae are finding, information pertaining to the trending to record lows from 2002 generally most abundant in the Delta delta smelt, in relation to the five factors through 2008 (Armor et al. 2005, p. 3; from mid-April through May (Bennett provided in section 4(a)(1) of the Act, is CDFG 2008, p. 2). In March of 2004, we 2005, p. 13). After several weeks of discussed below. completed a 5 year review of the species development, larval surveys indicate Numerous threats to delta smelt could that recommended against changing the that larvae move downstream until they be addressed either as habitat listing status of the delta smelt. At that reach nursery habitat in the ‘‘low modifications or as falling under time there was no indication that the salinity zone’’ (LSZ) where the salinity another of the five listing factors. We decreasing trend of 2002 was outside of ranges from approximately 2 to 7 parts will consider habitat modifications the range of expected variability, similar per thousand (ppt) (Moyle 2002, p. 228). (Factor A) to include alterations of to those in 1992, 1994, and 1996 Juvenile smelt rear and grow in the LSZ salinity and turbidity (water clarity). We (Service 2004, unpaginated App. B for several months, preferring relatively address issues of direct entrainment, Midwater Trawl Abundance Index shallow open water (Dege and Brown contaminants, invasive species, and table). However, the delta smelt index 2004, pp. 56-58). In September or effects of small populations under continues a decreasing trend and is now October, delta smelt reach adulthood Factor E, Other Natural or Manmade estimated at the lowest level ever and begin a gradual migration back into Factors.

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A. The Present or Threatened Egeria densa have also reduced pelagic areas of the San Francisco Bay– Destruction, Modification, or turbidity levels in rearing habitat, which Delta, and thus have wide areas of Curtailment of Its Habitat or Range may reduce foraging efficiency. overlap with delta smelt juveniles and adults. They also tend to aggregate in From late spring through fall and B. Overutilization for Commercial, the vicinity of water diversion early winter, delta smelt are located at Recreational, Scientific, or Educational structures, where delta smelt are the LSZ, which moves depending upon Purposes San Francisco Bay–Delta water outflow frequently entrained (Nobriga and Delta smelt monitoring surveys are (Dege and Brown 2004, pp. 56-58; Feyrer 2007, p. 9). Thus, striped bass are conducted throughout the year, Service 2008, pp. 147, 150). Reduced likely to be the most significant predator including the Fall Mid-Winter Trawl Delta water outflow causes the LSZ to of delta smelt (Nobriga and Feyrer 2007, (FMWT), Summer Townet Survey move upstream, which seems to p. 9), although the rarity of delta smelt (TNS), 20-mm Survey, and Spring concentrate delta smelt in a smaller area would presumably make them a Kodiak Trawl Survey (SKT). Overall along with other competing relatively unusual prey item. Delta take by survey collection is believed to planktivorous fishes (Bennett 2005, pp. smelt are not commonly found as prey be low compared to estimated relative 11, 20). Causes of such reduced for striped bass (Bennett 2005, p. 49; abundances (Bennett 2005, p. 7); outflows include smaller upstream Nobriga and Feyrer 2007, p. 9); however, considering the concern for releases from dams, increased water however, smelt may be taken reduced abundance based on trend exports from the State and Federal opportunistically since both striped and assessment, questions arise as to facilities, and upstream water diversions largemouth bass have highly diverse whether these and other surveys pose a for flooding rice fields (Feyrer 2007, p. diets (Nobriga and Feyrer 2007, p. 6). concern to the delta smelt. Because of 731; Service 2008, p. 153). Low Largemouth bass are freshwater fish low abundance and a high level of freshwater outflows in the fall have that prefer shoreline (littoral) habitat sampling mortality, survey methods been correlated with a reduced with relatively dense water plants have been modified to minimize abundance index for young delta smelt (Nobriga and Feyrer 2007, pp. 4, 8; potential impacts to delta smelt (K. the following summer (Feyrer et al. Baxter et al. 2008, p. 17). Increases in Souza 2009, pers. comm.). Based on the 2007, pp. 727, 728). the Delta’s largemouth bass population Delta smelt are also believed to low number of delta smelt collected in since the early 1990s is believed to have require relatively turbid (not clear) sampling surveys and the modified been facilitated by the spread of the waters to capture prey and avoid methods employed to further reduce invasive plant Egeria densa, which predators (Feyrer 2007, p. 731). these collections, we find that the provides bass habitat (Baxter 2008, p. Increased water clarity during the amount of take expected to occur from 17). Despite increases in largemouth summer and fall has been shown to be sampling surveys does not reach a level bass populations and habitat, Nobriga negatively correlated with subsequent substantial enough to be considered a and Feyrer (2007, p 6) did not find delta summer delta smelt abundance indices threat. There is no evidence of use of the smelt as largemouth bass prey. (Feyrer 2007, p. 728; Nobriga et al. 2008, species for other commercial, Inland silversides may be predators p. 8). Since 1978, delta smelt have recreational, scientific, or educational and competitors with delta smelt become increasingly rare in summer and purposes. (Bennett 2005, pp. 49, 50). Inland fall surveys of the San Joaquin region of Based on a review of the best silversides were first introduced to the the San Francisco Bay–Delta (Nobriga et scientific information available, we find San Francisco Bay–Delta in the mid al. 2008, p. 9). The primary reason that overutilization for commercial, 1970s, and have increased dramatically appears to be the comparatively high recreational, or educational purposes is in numbers since the mid-1980s. They water clarity in the region, although not likely to be a significant threat to the forage in schools around the shoreline high water temperatures are also likely delta smelt in any portion of its range. habitats of the San Francisco Bay–Delta, a contributing factor (Nobriga et al. Overutilization for scientific purposes where delta smelt larvae and eggs occur. 2008, pp. 8, 9). The increased water may pose an increased concern to delta They readily consume delta smelt larvae clarity in delta smelt rearing habitat is smelt, but survey protocols have been in aquarium tests. Bennett (2005, p. 50) attributed to the interruption of modified to minimize that concern. concluded that ‘‘delta smelt are at high sediment transport by upstream dams C. Disease or Predation risk if eggs or larvae co-occur with (Arthur and Ball 1979, p. 157; Wright schools of foraging silversides.’’ We have and Schoellhamer 2004, pp. 7, 10) and Disease no information regarding the extent to the spread of the exotic invasive water Studies have not found evidence of which this is likely to occur in the wild. plant Egeria densa (Brazilian significant disease infestations in wild Based on a review of the best waterweed), which traps suspended delta smelt (Teh 2007, p. 8; Baxter et al. available scientific and commercial sediments (Feyrer et al. 2007, p. 731). 2008, p. 14). Based on the best scientific information, we find that predation and commercial information available, likely constitutes a low-to-moderate Summary for Factor A we conclude that disease does not threat. Although we have no empirical Based on a review of the best threaten the delta smelt in any portion evidence to indicate predation has scientific and commercial information of its range. significantly increased since the time of available, we find that destruction, listing, other factors, such increasing modification, or curtailment of habitat Predation water clarity, could increase the risk of poses a current and future threat to delta At least three species of nonnative predation. smelt. Operation of upstream reservoirs, fish with the potential to prey on delta Summary for Factor C increased water exports, and upstream smelt occur within the Delta: striped water diversions have altered the bass (Morone saxatilis), largemouth bass Based on a review of the best location and extent of the low salinity (Micropterus salmoides), and inland available scientific and commercial zone, concentrating smelt in an area silversides (Menidia beryllina) (Bennett information available, we conclude that with competing fish species. Upstream 2005, p. 49; Baxter et al. 2008, p. 17). disease is not likely to be a significant reservoirs and the increased presence of Striped bass are widely distributed in threat, and that predation is likely a

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low-to-moderate threat, to the species at major Federal actions and management operations could proceed without this time. decisions significantly affecting the jeopardizing the continued existence of human environment. NEPA D. The Inadequacy of Existing the species or destroying or adversely documentation is provided in an Regulatory Mechanisms modifying its designated critical habitat. environmental impact statement, an It also includes an incidental take State Laws environmental assessment, or a statement (ITS) specifying reasonable California Endangered Species Act: categorical exclusion, and may be and prudent measures necessary to The delta smelt was listed as threatened subject to administrative or judicial minimize the incidental take of the under the California Endangered appeal. However, the Federal agency is species resulting from CVP and SWP not required to select an alternative Species Act (CESA) in 1993 (CDFG operations. Reclamation has accepted having the least significant 2008, p. 5), and was reclassified as the RPA provisionally, but may decide environmental impacts, and may select endangered under the CESA in 2010 (14 an action that will adversely affect to reinitiate consultation (Reclamation CCR 670.5). The CESA prohibits sensitive species provided that these 2008, p. 1). The ITS and BO replace a unpermitted possession, purchase, sale, effects are known and identified in a previous ITS and BO issued in 2005 or take of listed species. However, the NEPA document. Therefore, we do not (Service 2005, p. 1), and also replace CESA definition of take does not consider the NEPA process in itself is to flow restrictions instituted by the include harm, which under the Act can be a regulatory mechanism that is District Court in the case of NRDC v. include destruction of habitat that certain to provide significant protection Kempthorne (Wanger 2007, pp. 1-11), actually kills or injures wildlife by for the delta smelt. which found the 2005 BO inadequate to significantly impairing essential Endangered Species Act: The delta conserve the species. behavioral patterns (50 CFR 17.3). The smelt is currently listed as a threatened CESA does require consultation Central Valley Project Improvement species under the Endangered Species Act: The Central Valley Project between the California Department of Act of 1973, as amended (Act). By Improvement Act (Pub. L. 102- Fish and Game (CDFG) and other State general regulation under sections 4(d) 575)(CVPIA) amends the previous agencies to ensure that activities of State and 7(a) of the Act, threatened fish or agencies will not jeopardize the wildlife species are afforded all the Central Valley Project (CVP) continued existence of State-listed regulatory protections that endangered authorizations to include fish and species (CERES 2009, p. 1). fish or wildlife species have. However, wildlife protection, restoration, and Porter Cologne Water Quality Control in order to provide those measures mitigation as project purposes having Act: The Porter Cologne Water Quality necessary and advisable for the equal priority with irrigation and Control Act establishes the State Water conservation of a species listed as domestic uses, and fish and wildlife Resources Control Board (SWRCB) and threatened, we can issue a special rule enhancement as having an equal nine Regional Water Quality Control under section 4(d) of the Act to allow priority with power generation (Public Boards that are responsible for the different restrictions on ‘‘take’’ as Law 102-575, October 30, 1992; regulation of activities and factors that defined in section 3(19) of the Act and Reclamation 2009). Included in CVPIA could degrade California water quality regulated under section 9 of the Act. No was a provision to dedicate 800,000 and for the allocation of surface water special rules for delta smelt currently acre-feet of CVP yield annually for fish, rights (California Water Code Division exist. The Act defines a ‘‘threatened wildlife, and habitat restoration, 7). In 1995, the SWRCB developed the species’’ as ‘‘any species which is likely referred to as (b)(2) water. Since 1993, Bay-Delta Water Quality Control Plan to to become an endangered species within (b)(2) water has been used, establish water quality objectives for the the foreseeable future throughout all or supplemented with acquired Delta. This plan is implemented by a significant portion of its range’’ Water Rights Decision 1641, which environmental water (Environmental (section 3(20) of the Act). An Water Account and CVPIA (b)(3) water), imposes flow and water quality ‘‘endangered species’’ is ‘‘any species to protect delta smelt and their habitat standards on State and Federal water which is in danger of extinction by increasing stream flows and reducing export facilities to assure protection of throughout all or a significant portion of beneficial uses in the Delta (Service its range’’ (section 3(6) of the Act). CVP export pumping in the Delta 2008, pp. 21-27). The various flow Section 6 of the Act authorizes us to (Guinee 2009, pers. comm.). objectives and export restraints are enter into conservation agreements with Summary for Factor D designed, in part, to protect fisheries. States, and to allocate funds for These objectives include specific conservation programs to benefit In summary, although regulatory outflow requirements throughout the threatened or endangered species. mechanisms are in place to address year, specific water export restraints in Neither section 6 of the Act nor Service direct and indirect adverse effects to the spring, and water export limits policy gives higher priority to delta smelt and conserve smelt habitat, based on a percentage of estuary inflow endangered vs. threatened species for not all activities impacting delta smelt throughout the year. The water quality conservation funding. are subject to regulatory review and objectives are designed to protect The Central Valley Project (CVP), comment. The continued decline in agricultural, municipal, industrial, and operated by the Bureau of Reclamation delta smelt trend indicators suggest that fishery uses; they vary throughout the (Reclamation), and State Water Project existing regulatory mechanisms, as (SWP), operated by the California year and by the wetness of the year. currently implemented, are not Resources Agency Department of Water adequate to reduce threats to the Federal Laws Resources (DWR), are currently National Environmental Policy Act: operating under a Biological Opinion species. Therefore, based on a review of The National Environmental Policy Act (BO) issued December 15, 2008, under the best scientific information available, (NEPA) (42 U.S.C. 4321 et seq.) requires section 7 of the Act (Service 2008, pp. we find existing regulatory mechanisms all Federal agencies to formally 1-396). The BO includes a reasonable are either not sufficient or may not be document, consider, and publicly and prudent alternative (RPA), addressing the most significant threat to disclose the environmental impacts of according to which water export facility the species.

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E. Other Natural or Manmade Factors of the two plants. Entrainment of delta and Federal export facilities during the Affecting the Species’ Continued smelt by these two major power plants early 2000s coincide with declines in Existence has been a significant threat in the past delta smelt abundance estimates during Other factors affecting the continued and could impact delta smelt in the the same time period (Baxter 2008, existence of the species include direct future. These plants are of particular p.18). The total annual pumping from entrainment into water diversions, concern because they are located near, the State and Federal export facilities introduced species, contaminants, and and draw cooling water from, an area increased significantly in 2000, and has increased vulnerabilities of small where sensitive fish species are known remained above 1990’s levels through populations. to occur. Additional study is needed to 2007 (Service 2008, p. 125). The delta determine the overall environmental smelt Fall Midwater Trawl (FMWT) Direct Entrainment impact of these power plants. abundance index decreased in the year Agricultural Diversions for Irrigation: Water Export Facilities: Four major 2000, and experienced severe declines 2 water diversion facilities exported years later (CDFG 2008, p. 2). While There are 2,209 known agricultural 3 diversions in the San Francisco Bay– between 4.85 and 8.7 km (3.93 and 7.05 there are many factors contributing to Delta and an additional 366 diversions million acre-feet) per year from the the declining trend in delta smelt in Suisun Marsh used to enhance Delta during the years 1995 through abundance estimates, we consider 2005 (Kimmerer and Nobriga 2008, p 2). waterfowl habitat (Service 2008, p. 172). entrainment by State and Federal water Of these, the State and Federal facilities Most of these diversions do not have export facilities to be a significant and exported between 4.7 and 8.4 km3 (3.81 fish screens to protect fish from ongoing threat to the delta smelt. and 6.81 million acre-feet) per year. In summary, we do not consider entrainment (trapping). The amount of Operation of water export facilities entrainment by agricultural diversions entrainment that may occur at these directly affects fish by entrainment into to be a significant threat due to their diversions is not well-known, and the diversion facility. The risk of nearshore location. Entrainment into efforts to determine the effect of this entrainment varies with the power plants at Pittsburgh and Contra entrainment have been limited because environmental and manmade effects on Costa has had a significant impact on previous studies either (1) did not Delta hydrology and the location of delta smelt in the past; however, their quantify the volumes of water diverted, delta smelt in the Delta (Culberson et al. operations have been modified, and or (2) did not sample at times when, or 2004, pp. 260-262; Kimmerer and further study is needed to determine the locations where, delta smelt were Nobriga 2008, pp. 19-20). present level of threat to delta smelt. abundant. Delta smelt may not be Entrainment of delta smelt varies The operation of State and Federal vulnerable to agricultural diversions for among seasons and among years. Most export facilities constitute a significant several reasons. First, adult delta smelt adults are entrained from late December and ongoing threat to delta smelt move into the Delta to spawn during through March, while most larvae and through direct mortality by entrainment. winter to early spring when agricultural juveniles are entrained from April diversion operations are at a minimum. through the end of June to early July. Introduced Species Second, larval delta smelt avoid the Studies of entrainment at the State and Introduced species have altered the South Delta during summer when Federal export facilities found that Delta food web and may have played a diversion demand peaks. Third, delta entrainment rates increased with reverse role in the decline of delta smelt smelt are often distributed offshore, flows in the Delta, which are related to (Nobriga 1998, p. 20). The overbite clam away from agricultural diversions export rates (Kimmer 2008, p. 20-22). (Corbula amurensis) is a nonnative (Nobriga et al. 2004, p. 293). Therefore, Kimmerer (2008, p. 20, 22) estimated species that became abundant in the we do not consider entrainment by that from 0 to 62 percent of the larval Delta in the late 1980s. Starting in about agricultural or waterfowl habitat population and 3 to 50 percent of the 1987 to 1988, declines were observed in diversions to be a significant threat to adult population is entrained annually the abundance of phytoplankton delta smelt. by the State and Federal export (Alpine and Cloern 1992, p. 951) and Power Plant Diversions: Two power facilities. Although an effort is made to the copepod Eurytemora affinis. These plants located near the confluence of the salvage fish entrained by the pumping declines have been attributed to grazing Sacramento and San Joaquin Rivers facilities, delta smelt are too fragile to by the overbite clam (Kimmerer et al. pose an entrainment risk to delta smelt: do so effectively, and essentially all 1994, p. 86). Because the overbite clam the Contra Costa Power Plant and the delta smelt entrained by the pumping also consumes copepod larvae as it Pittsburg Power Plant (Service 2008, pp. facilities, including all delta smelt that feeds (Kimmerer et al. 1994, p. 87), it 173-174). The maximum combined non- enter the SWP’s Clifton Court Forebay, not only reduces phytoplankton consumptive intake of cooling water for do not survive (Bennett 2005, p. 37). biomass but also competes directly with the two facilities is 3,240 cubic feet per Entrainment may also affect the delta smelt for food. It is believed that second (cfs), which can exceed 10 distribution of the successfully spawned these changes in the estuarine food web percent of the total net outflow of the population. Export of water by the CVP negatively influence pelagic fish Sacramento and San Joaquin rivers. In and SWP likely limits the reproductive abundance, including delta smelt 1979, average annual entrainment at the success of delta smelt in the San Joaquin abundance. two power plants was estimated to be 86 River by entraining most larvae during Copepods (E. affinis, million smelt (delta and longfin smelt downstream transport from spawning Psuedodiaptomus forbesi), a major prey combined). Power plant operations have sites to rearing areas (Kimmerer and item for delta smelt, have declined in been substantially reduced since that Nobriga et al. 2008, p. 11). Winter abundance in the Delta since the 1970s time, and are now either kept offline, or entrainment of delta smelt represents a (Kimmerer and Orsi 1996, p. 409). operating at very low levels, except as loss of pre-spawning adults and their Limnoithona tetraspina (no common necessary to meet peak power needs. reproductive potential (Sommer et al. name) is a nonnative copepod that The owner of the power plants, Mirant, 2007). began increasing in numbers in the delta is monitoring entrainment at the two The population-level effects of such in the mid 1990s – about the same time power plants to determine how many losses are unknown. However, increases that the delta smelt’s preferred prey delta smelt may be affected by operation in winter salvage of adults at the State copepod, P. forbesi, began declining

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(Bennett 2005, p. 18). L. tetraspina is azteca had low (less than 5 percent) female sexes) delta smelt, with now the most abundant copepod species frequency of occurrence of toxicity. immature oocytes in their testes (Teh in the low salinity zone (Bouley and However, preliminary results from 2007, 2007, p. 14). This can result from Kimmerer 2006, p. 219), and is likely an a dry year, suggest the incidence of toxic exposure to endocrine-disrupting inferior prey species for delta smelt events was higher than in the previous chemicals, but it can also occur because of its smaller size and superior (wetter) years. Testing indicated that spontaneously. Teh (2007) concluded predator avoidance abilities when both organophosphate and pyrethroid that additional laboratory evaluation compared to P. forbesi (Bennett 2005, p. pesticides may have contributed to the was necessary to identify the cause. 18; Baxter et al. 2008, p. 22). pulses of toxicity. Pyrethroids are of Large blooms of toxic blue-green Delta smelt may also be adversely particular interest because use of these algae, Microcystis aeruginosa, were first affected by competition from introduced insecticides has increased within the detected in the San Francisco Bay–Delta fish species that use overlapping San Francisco Bay–Delta watershed, as during the summer of 1999 (Lehman et habitats, such as inland silversides use of some organophosphate al. 2005, p. 87). Since then, M. (Bennett 2005, pp. 49, 50). Laboratory insecticides has declined. aeruginosa has bloomed each year, studies show that delta smelt growth is In conjunction with the above forming large colonies throughout most inhibited when reared with inland investigation, larval delta smelt of the Delta and increasingly down into silversides (Bennett 2005, p. 50). Delta bioassays were conducted eastern Suisun Bay (Lehman et al. 2005, smelt and inland silversides have simultaneously with a subset of the p. 92). Blooms typically occur between similar morphology, diet, and lifespan, invertebrate bioassays (Service 2008, pp. late spring and early fall and peak in the but silversides have a broader diet, and 187-188). The water samples for these summer when temperatures are above a generally wider ecological niche, a tests were collected from six sites 20 0C (68 0F). Microcystis aeruginosa pattern that could give it a competitive within the San Francisco Bay–Delta can produce natural toxins that pose advantage over delta smelt (Bennett during May-August of 2006 and 2007. and human health risks if 2005, p. 50). Results from 2006 indicate that delta contacted or ingested directly. In summary, we find that introduced smelt are highly sensitive to high levels Preliminary evidence indicates that the species have altered the Delta food web of ammonia, low turbidity, and low toxins produced by local blooms are not and constitute a significant threat to salinity. No significant mortality of toxic to fishes at current concentrations delta smelt. It is likely that this threat larval delta smelt was found in the 2006 (Baxter et al. 2008, p. 14). However, the will increase in the future with the bioassays, but there were two instances copepods that delta smelt eat are ongoing risk of new species being of significant mortality in June and July particularly susceptible to those toxins introduced to the Delta. of 2007. In both cases, the water (Ger 2008, pp. 12, 13). Studies are Contaminants samples were collected from sites along underway to determine if zooplankton the Sacramento River, where delta smelt production is compromised during M. There is a potential for exposure of larvae and juveniles are frequently aerguinosa blooms to an extent that is Delta organisms to various collected in routine survey sampling. likely to adversely affect delta smelt contaminants. Toxicity to invertebrates Both sets of water samples had (Service 2008, p. 186). Microcystis has been noted in water and sediments relatively low turbidity and salinity blooms may also decrease dissolved from the Delta and associated levels and moderate levels of ammonia. oxygen to lethal levels for fish; however, watersheds (e.g., Werner et al. 2000, pp. It is also important to note that no the distribution of delta smelt generally 218, 223). Fish exposed to water from significant Hyalella azteca mortality does not significantly overlap the agricultural drains in the San Joaquin was detected in these water samples. densest M. aeruginosa concentrations, River watershed can exhibit body While the H. azteca tests are useful for so low levels of dissolved oxygen are burdens of selenium exceeding the level detecting biologically relevant levels of not likely a threat to delta smelt. One at which reproductive failure and water column toxicity for zooplankton, possible exception to non-overlapping increased juvenile mortality occur (Saiki interpretation of the H. azteca test distribution may have occurred during et al. 2001, p. 629). Kuivila and Moon results may not be applicable to fish, September 2007, when delta smelt were (2004, p. 239) found that peak densities and delta smelt in particular. captured at higher salinity levels than of larval and juvenile delta smelt A histopathological examination of normal. One possible explanation for sometimes coincided in time and space adult delta smelt collected during the this was that a substantial Microcystis with elevated concentrations of winter of 2005 found comparatively bloom may have pushed delta smelt dissolved pesticides in the spring. These high levels of liver lesions in delta smelt farther towards the ocean than they periods of co-occurrence lasted for up to taken from Suisun Bay, Suisun Marsh, would normally have gone (Baxter et al. 2 to 3 weeks. Concentrations of and the South Delta, indicating that 2008, pp. 12, 28). individual pesticides were low and delta smelt in those areas had been Although negative impacts to much less than would be expected to subjected to higher levels of stress from individual delta smelt for contaminants cause acute mortality; however, the contaminants than delta smelt in other have been shown, the overall extent of effects of exposure to the complex areas (Teh 2007, pp. 12, 13). Although such cases, and impacts to the mixtures of pesticides are unknown. the study did not suggest such lesions population as a whole, remain largely Several studies were initiated in 2005 would prevent survival or reproduction undocumented. However, because to address the possible role of directly, it did note that such stress can substantial uncertainties exist and the contaminants and disease in the leave afflicted individuals more co-occurrence of delta smelt with declines of San Francisco Bay–Delta fish susceptible to mortality from other contaminants has been documented, we and other aquatic species. The primary causes, such as predation and disease. conclude that contaminants may study consists of twice-monthly The study concluded that contaminants constitute a significant threat to delta monitoring of ambient water toxicity at are unlikely to directly affect the smelt. 15 sites in the San Francisco Bay–Delta survival of delta smelt in the Central and Suisun Bay (Baxter et al. 2008, pp. Delta (Teh 2007, p. 2). The study also Vulnerability of Small Populations 13, 14). In 2005 and 2006, standard found a small number of intersex Delta smelt are relatively concentrated bioassays using the amphipod Hyalella (having characteristics of both male and in their rearing habitat during the fall,

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making them vulnerable to normal, but threatened to endangered was not system places greatest importance on damaging, environmental conditions recommended. While none of the the immediacy and magnitude of such as droughts, contaminant spills, threats discussed above, other than threats, but also factors in the level of and predation. Small, isolated apparent abundance, show significant taxonomic distinctiveness by assigning populations are more likely to lose differences from 2004, we now have priority in descending order to genetic variability due to genetic drift strong evidence, not available at the monotypic genera, full species, and (random genetic changes over time), and time of our 5–year review, that at least subspecies (or equivalently, distinct to suffer inbreeding depression due to some of those factors are endangering population segments of vertebrates). As the fixation of deleterious alleles (gene the species. The primary evidence is the a result of our analysis of the best variants) (Lande 1999, pp. 11-17). continuing downward trend in delta available scientific and commercial Populations at low densities are often smelt abundance indices since the information, we have assigned the delta subject to Allee effects, which involve significant decline that occurred in 2002 smelt a Listing Priority Number of 2, decreases in the ratio of offspring to (CDFG 2008, p. 2). The 2002 decline based on high magnitude and adults as the population density was cited as a serious concern in 2004, immediacy of threats. The magnitude of decreases (Dennis 2002, p. 389). It is but the delta smelt abundance indices the threats is considered to be high, unknown if small population size may had experienced significant downward because they occur rangewide and result have contributed to delta smelt’s most trends in 1992, 1994, and 1996 (Service in mortality or significantly reduce the apparent decline. 2004, unpaginated App. B Midwater reproductive capacity of the species. Trawl Abundance Index table). They are imminent because these Summary for Factor E However, after each of those previous threats are ongoing and, in some cases Based on a review of the best declines, the abundance indices (e.g., nonnative species), considered scientific and commercial information seemingly rebounded. The 2003 irreversible. While we conclude that available, we find that the following abundance index, the most current reclassifying the species as endangered additional natural or manmade factors information available for the 5–year is warranted, an immediate proposal to pose significant ongoing threats to the review, showed a slight increase from reclassify this species is precluded by delta smelt: entrainment by the State the 2002 index. Therefore, we had no other higher priority actions, which we and Federal water export facilities and evidence to suggest a cycle different address below. introduced species. Additional threats from what had been previously Preclusion and Expeditious Progress that are potentially significant are observed, and we expected that the entrainment into power plant delta smelt would improve from the Preclusion is a function of the listing diversions, contaminants, and small 2002 decline. In the 5 years since our 5– priority of a species in relation to the population effects. year review, however, delta smelt resources that are available and competing demands for those resources. Finding abundance indices have continued to decrease. The most recent fall midwater Thus, in any given fiscal year (FY), As required by the Act, we considered trawl abundance index is the lowest multiple factors dictate whether it will the five factors in assessing whether the ever recorded – about one-tenth the be possible to undertake work on a delta smelt is threatened or endangered level it was in 2003. In addition, a 2005 proposed listing regulation or whether throughout all or a significant portion of population viability analysis calculated promulgation of such a proposal is its range. We carefully assessed the best a 50 percent likelihood that the species warranted but precluded by higher- scientific and commercial information could reach effective extinction (8,000 priority listing actions. available regarding whether individuals) within 20 years (Bennett The resources available for listing reclassifying delta smelt from 2005, pp. 53-54). actions are determined through the threatened to endangered may be We are still unable to determine with annual Congressional appropriations warranted. We reviewed the information certainty which threats or combinations process. The appropriation for the in our files, and information submitted of threats are directly responsible for the Listing Program is available to support to us after the publication of our 90–day decrease in delta smelt abundance. work involving the following listing finding (73 FR 39639) and during the However, the apparent low abundance actions: proposed and final listing rules; reopened information collection period of delta smelt in concert with ongoing 90–day and 12–month findings on (73 FR 74674). threats throughout its range indicates petitions to add species to the Lists of We believe there are many primary that the delta smelt is now in danger of Endangered and Threatened Wildlife threats to the species: direct extinction throughout its range. and Plants (Lists) or to change the status entrainments by State and Federal water Therefore, based on a review of the best of a species from threatened to export facilities (Factor E); summer and scientific and commercial information endangered; annual determinations on fall increases in salinity and water available, we find that the delta smelt prior ‘‘warranted but precluded’’ petition clarity (Factor A), and effects from meets the definition of an endangered findings as required under section introduced species (Factor E). species under the Act, and that it 4(b)(3)(C)(i) of the Act; critical habitat Additional threats are predation by warrants reclassification from petition findings; proposed and final striped and largemouth bass and inland threatened to endangered. However, at rules designating critical habitat; and silversides (Factor C), entrainment into this time, the promulgation of a formal litigation-related, administrative, and power plants (Factor E), contaminants rulemaking to reclassify delta smelt is program-management functions (Factor E) and small population size precluded by higher priority actions. (including preparing and allocating (Factor E). Existing regulatory We adopted guidelines on September budgets, responding to Congressional mechanisms (Factor D) have not proven 21, 1983 (48 FR 43098) to establish a and public inquiries, and conducting adequate to halt the decline of delta rational system for utilizing available public outreach regarding listing and smelt since the time of listing as a resources for the highest priority species critical habitat). The work involved in threatened species. when adding species to the Lists of preparing various listing documents can In March 2004, we completed a 5– Endangered or Threatened Wildlife and be extensive and may include, but is not year review for delta smelt in which we Plants or reclassifying species listed as limited to: gathering and assessing the determined a change in status from threatened to endangered status. The best scientific and commercial data

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available and conducting analyses used the critical habitat portion of some Program to the Endangered Species as the basis for our decisions; writing proposed listing determinations, so that Program. Our process is to make our and publishing documents; and the proposed listing determination and determinations of preclusion on a obtaining, reviewing, and evaluating proposed critical habitat designation nationwide basis to ensure that the public comments and peer review could be combined into one rule, species most in need of listing will be comments on proposed rules and thereby being more efficient in our addressed first and also because we incorporating relevant information into work. In FY 2010, we are using some of allocate our listing budget on a final rules. The number of listing the critical habitat subcap funds to fund nationwide basis. The $11,585,417 is actions that we can undertake in a given actions with statutory deadlines. being used to fund work in the year also is influenced by the Thus, through the listing cap, the following categories: compliance with complexity of those listing actions; that critical habitat subcap, and the amount court orders and court-approved is, more complex actions generally are of funds needed to address court- settlement agreements requiring that more costly. For example, during the mandated critical habitat designations, petition findings or listing past several years, the cost (excluding Congress and the courts have in effect determinations be completed by a publication costs) for preparing a 12– determined the amount of money specific date; section 4 (of the Act) month finding, without a proposed rule, available for other listing activities. listing actions with absolute statutory has ranged from approximately $11,000 Therefore, the funds in the listing cap, deadlines; essential litigation-related, for one species with a restricted range other than those needed to address administrative, and listing program- and involving a relatively court-mandated critical habitat for management functions; and high- uncomplicated analysis to $305,000 for already listed species, set the limits on priority listing actions for some of our another species that is wide-ranging and our determinations of preclusion and candidate species. The allocations for involving a complex analysis. expeditious progress. each specific listing action are identified We cannot spend more than is Congress also recognized that the in the Service’s FY 2010 Allocation appropriated for the Listing Program availability of resources was the key Table (part of our administrative without violating the Anti-Deficiency element in deciding, when making a 12– record). Act (see 31 U.S.C. § 1341(a)(1)(A)). In month petition finding, whether we In FY 2007, we had more than 120 addition, in FY 1998 and for each fiscal would prepare and issue a listing species with an LPN of 2, based on our year since then, Congress has placed a proposal or instead make a ‘‘warranted September 21, 1983, guidance for statutory cap on funds which may be but precluded’’ finding for a given expended for the Listing Program, equal species. The Conference Report assigning an LPN for each candidate to the amount expressly appropriated accompanying Public Law 97-304, species (48 FR 43098). Using this for that purpose in that fiscal year. This which established the current statutory guidance, we assign each candidate an cap was designed to prevent funds deadlines and the warranted-but- LPN of 1 to 12, depending on the appropriated for other functions under precluded finding, states (in a magnitude of threats (high vs. moderate the Act (for example, recovery funds for discussion on 90–day petition findings to low), immediacy of threats (imminent removing species from the Lists), or for that by its own terms also covers 12– or nonimminent), and taxonomic status other Service programs, from being used month findings) that the deadlines were of the species (in order of priority: for Listing Program actions (see House ‘‘not intended to allow the Secretary to monotypic genus (a species that is the Report 105-163, 105th Congress, 1st delay commencing the rulemaking sole member of a genus); species; or part Session, July 1, 1997). process for any reason other than that of a species (subspecies, distinct Recognizing that designation of the existence of pending or imminent population segment, or significant critical habitat for species already listed proposals to list species subject to a portion of the range)). The lower the would consume most of the overall greater degree of threat would make listing priority number, the higher the Listing Program appropriation, Congress allocation of resources to such a petition listing priority (that is, a species with an also put a critical habitat subcap in [that is, for a lower-ranking species] LPN of 1 would have the highest listing place in FY 2002 and has retained it unwise.’’ priority). Because of the large number of each subsequent year to ensure that In FY 2010, expeditious progress is high-priority species, we further ranked some funds are available for other work that amount of work that can be the candidate species with an LPN of 2 in the Listing Program: ‘‘The critical achieved with $10,471,000, which is the by using the following extinction-risk habitat designation subcap will ensure amount of money that Congress type criteria: International Union for the that some funding is available to appropriated for the Listing Program Conservation of Nature and Natural address other listing activities’’ (House (that is, the portion of the Listing Resources (IUCN) Red list status/rank, Report No. 107 - 103, 107th Congress, 1st Program funding not related to critical Heritage rank (provided by Session, June 19, 2001). In FY 2002 and habitat designations for species that are NatureServe), Heritage threat rank each year until FY 2006, the Service has already listed). However these funds are (provided by NatureServe), and species had to use virtually the entire critical not enough to fully fund all our court- currently with fewer than 50 habitat subcap to address court- ordered and statutory listing actions in individuals, or 4 or fewer populations. mandated designations of critical FY 2010, so we are using $1,114,417 of Those species with the highest IUCN habitat, and consequently none of the our critical habitat subcap funds in rank (critically endangered), the highest critical habitat subcap funds have been order to work on all of our required Heritage rank (G1), the highest Heritage available for other listing activities. In petition findings and listing threat rank (substantial, imminent FY 2007, we were able to use some of determinations. This brings the total threats), and currently with fewer than the critical habitat subcap funds to fund amount of funds we have for listing 50 individuals, or fewer than 4 proposed listing determinations for action in FY 2010 to $11,585,417. populations, comprised a group of high-priority candidate species. In FY Starting in FY 2010, we are also using approximately 40 candidate species 2009, while we were unable to use any our funds to work on listing actions for (‘‘Top 40’’). These 40 candidate species of the critical habitat subcap funds to foreign species since that work was have had the highest priority to receive fund proposed listing determinations, transferred from the Division of funding to work on a proposed listing we did use some of this money to fund Scientific Authority, International Affair determination. As we work on proposed

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and final listing rules for these 40 status. Because the delta smelt is a court-approved deadlines, and final candidates, we are applying the ranking species, but not a monotypic genus, we listing determinations for those species criteria to the next group of candidates assigned it an LPN of 2. We find that that have been proposed for listing; and with LPN of 2 and 3 to determine the reclassification to endangered status for (2) candidate species and next set of highest priority candidate the delta smelt is currently warranted reclassifications of other higher priority species. but precluded by higher priority listing threatened species (i.e., species with To be more efficient in our listing actions. One of the primary reasons that LPN of 1). This work includes all the process, as we work on proposed rules the reclassification of delta smelt is actions listed in the tables below under for these species in the next several considered a lower priority is that the expeditious progress. years, we are preparing multi-species species is currently listed as threatened, proposals when appropriate, and these As explained above, a determination and therefore already receives certain that reclassification is warranted but may include species with lower priority protections under the Act. The Service if they overlap geographically or have precluded must also demonstrate that promulgated regulations extending take expeditious progress is being made to the same threats as a species with an prohibitions for endangered species LPN of 2. In addition, available staff add or remove qualified species to and under section 9 to threatened species from the Lists of Endangered and resources are also a factor in (50 CFR 17.31). Prohibited actions determining high-priority species Threatened Wildlife and Plants. under section 9 include, but are not (Although we do not discuss it in detail provided with funding. Finally, limited to, take (i.e., to harass, harm, proposed rules for reclassification of here, we are also making expeditious pursue, hunt, shoot, wound, kill, trap, progress in removing species from the threatened species to endangered are capture, or collect, or attempt to engage lower priority, since as listed species, list under the Recovery program, which in such activity). Other protections is funded by a separate line item in the they are already afforded the protection include those under section 7(a)(2) of of the Act and implementing budget of the Endangered Species the Act whereby Federal agencies must Program. As explained above in our regulations. insure that any action they authorize, We assigned the delta smelt an LPN description of the statutory cap on fund, or carry out is not likely to of 2, based on our finding that the Listing Program funds, the Recovery jeopardize the continued existence of species faces immediate and high Program funds and actions supported by any endangered or threatened species. magnitude threats from the present or them cannot be considered in threatened destruction, modification, or Given the above-mentioned funding determining expeditious progress made curtailment of its habitat; the constraints, the Service’s priority is to in the Listing Program.) As with our inadequacy of existing regulatory list as threatened or endangered all ‘‘precluded’’ finding, expeditious mechanisms; and other natural or candidate species (and thus provides progress in adding qualified species to manmade Factors. One or more of the protections under the Act) before the Lists is a function of the resources threats discussed above are occurring in reclassifying threatened species that available and the competing demands each known population. These threats already receive protection under the for those funds. Given that limitation, are ongoing and, in some cases (e.g., Act. Therefore, work on a proposed we find that we have made progress in nonnative species), considered reclassification from threatened to FY 2009 in the Listing Program and will irreversible. Under the 1983 Guidelines, endangered for the delta smelt is continue to make progress in FY 2010. a ‘‘species’’ facing imminent high- precluded by work on: (1) listing This progress included preparing and magnitude threats is assigned an LPN of determinations for listing actions with publishing the following 1, 2, or 3 depending on its taxonomic absolute statutory, court-ordered, or determinations:

FY 2010 COMPLETED LISTING ACTIONS

Publication Date Title Actions FR Pages

10/08/2009 Listing Lepidium papilliferum (Slickspot Final Listing 74 FR 52013-52064 Peppergrass) as a Threatened Species Threatened ...... Throughout Its Range

10/27/2009 90-day Finding on a Petition To List the American Notice of 90–day Petition Finding, 74 FR 55177-55180 Dipper in the Black Hills of South Dakota as Not substantial ...... Threatened or Endangered

10/28/2009 Status Review of Arctic Grayling (Thymallus Notice of Intent to 74 FR 55524-55525 arcticus) in the Upper Missouri River System Conduct Status Review ......

11/03/2009 Listing the British Columbia Distinct Population Proposed Listing 74 FR 56757-56770 Segment of the Queen Charlotte Goshawk Threatened ...... Under the Endangered Species Act: Proposed rule.

11/03/2009 Listing the Salmon-Crested Cockatoo as Threat- Proposed Listing 74 FR 56770-56791 ened Throughout Its Range with Special Rule Threatened ......

11/23/2009 Status Review of Gunnison sage-grouse Notice of Intent to 74 FR 61100-61102 (Centrocercus minimus) Conduct Status Review ......

12/03/2009 12-Month Finding on a Petition to List the Black- Notice of 12 month petition finding, 74 FR 63343-63366 tailed Prairie Dog as Threatened or Endangered Not warranted ......

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FY 2010 COMPLETED LISTING ACTIONS—Continued

Publication Date Title Actions FR Pages

12/03/2009 90-Day Finding on a Petition to List Sprague’s Notice of 90–day Petition Finding, 74 FR 63337-63343 Pipit as Threatened or Endangered Substantial ......

12/15/2009 90-Day Finding on Petitions To List Nine Species Notice of 90–day Petition Finding, 74 FR 66260-66271 of Mussels From Texas as Threatened or En- Substantial ...... dangered With Critical Habitat

12/16/2009 Partial 90-Day Finding on a Petition to List 475 Notice of 90–day Petition Finding, 74 FR 66865-66905 Species in the Southwestern as Not substantial and Subtantial ...... Threatened or Endangered With Critical Habitat; Proposed Rule

12/17/2009 12–month Finding on a Petition To Change the Notice of 12 month petition finding, 74 FR 66937-66950 Final Listing of the Distinct Population Segment Warranted but precluded ...... of the Canada Lynx To Include New Mexico

1/05/2010 Listing Foreign Bird Species in Peru and Bolivia Proposed Listing 75 FR 605-649 as Endangered Throughout Their Range Endangered ......

1/05/2010 Listing Six Foreign Birds as Endangered Through- Proposed Listing 75 FR 286-310 out Their Range Endangered ......

1/05/2010 Withdrawal of Proposed Rule to List Cook’s Petrel Proposed rule, 75 FR 310-316 withdrawal ......

1/05/2010 Final Rule to List the Galapagos Petrel and Final Listing 75 FR 235-250 Heinroth’s Shearwater as Threatened Through- Threatened ...... out Their Ranges

1/20/2010 Initiation of Status Review for Agave eggersiana Notice of Intent to 75 FR 3190-3191 and Solanum conocarpum Conduct Status Review ......

2/09/2010 12–month Finding on a Petition to List the Amer- Notice of 12–month petition finding, 75 FR 6437-6471 ican Pika as Threatened or Endangered; Pro- Not warranted ...... posed Rule

2/25/2010 12-Month Finding on a Petition To List the Notice of 12–month petition finding, 75 FR 8601-8621 Sonoran Desert Population of the Bald Eagle as Not warranted ...... a Threatened or Endangered Distinct Population Segment

2/25/2010 Withdrawal of Proposed Rule To List the South- Withdrawal of Proposed 75 FR 8621-8644 western /Columbia River Distinct Rule to List ...... Population Segment of Coastal Cutthroat Trout (Oncorhynchus clarki clarki) as Threatened

3/18/2010 90-Day Finding on a Petition to List the Berry Notice of 90–day Petition Finding, 75 FR 13068-13071 Cave salamander as Endangered Substantial ......

3/23 /2010 90-Day Finding on a Petition to List the Southern Notice of 90–day Petition Finding, 75 FR 13717-13720 Hickorynut Mussel (Obovaria jacksoniana) as Not substantial ...... Endangered or Threatened

3/23 /2010 90-Day Finding on a Petition to List the Striped Notice of 90–day Petition Finding, 75 FR 13720-13726 Newt as Threatened Substantial ......

3/23/2010 12-Month Findings for Petitions to List the Greater Notice of 12–month petition finding, 75 FR 13910-14014 Sage-Grouse (Centrocercus urophasianus)as Warranted but precluded ...... Threatened or Endangered

3/31/2010 12-Month Finding on a Petition to List the Tucson Notice of 12–month petition finding 75 FR 16050-16065 Shovel-Nosed Snake (Chionactis occipitalis Warranted but precluded ...... klauberi) as Threatened or Endangered with Critical Habitat

Our expeditious progress also section of the table are being conducted under the Act. Actions in the bottom includes work on listing actions that we under a deadline set by a court. Actions section of the table are high-priority funded in FY 2010 but have not yet in the middle section of the table are listing actions. These actions include been completed to date. These actions being conducted to meet statutory work primarily on species with an LPN are listed below. Actions in the top timelines, that is, timelines required of 2, and selection of these species is

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partially based on available staff same threats as the species with the and funding, as compared to preparing resources, and when appropriate, high priority. Including these species separate proposed rules for each of them include species with a lower priority if together in the same proposed rule in the future. they overlap geographically or have the results in considerable savings in time

ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED

Species Action

Actions Subject to Court Order/Settlement Agreement

6 Birds from Eurasia Final listing determination

Flat-tailed horned lizard Final listing determination

6 Birds from Peru Proposed listing determination

Sacramento splittail Proposed listing determination

Big Lost River whitefish 12–month petition finding

White-tailed prairie dog 12–month petition finding

Gunnison sage-grouse 12–month petition finding

Wolverine 12–month petition finding

Arctic grayling 12–month petition finding

Agave eggergsiana 12–month petition finding

Solanum conocarpum 12–month petition finding

Mountain plover 12–month petition finding

Hermes copper butterfly 90–day petition finding

Thorne’s hairstreak butterfly 90–day petition finding

Actions with Statutory Deadlines

Casey’s june beetle Final listing determination

Georgia pigtoe, interrupted rocksnail, and rough hornsnail Final listing determination

2 Hawaiian damselflies Final listing determination

African penguin Final listing determination

3 Foreign bird species (Andean flamingo, Chilean woodstar, St. Lucia forest thrush) Final listing determination

5 Penguin species Final listing determination

Southern rockhopper penguin – Campbell Plateau population Final listing determination

5 Bird species from Colombia and Ecuador Final listing determination

7 Bird species from Brazil Final listing determination

Queen Charlotte goshawk Final listing determination

Salmon crested cockatoo Proposed listing determination

Black-footed albatross 12–month petition finding

Mount Charleston blue butterfly 12–month petition finding

Least chub1 12–month petition finding

Mojave fringe-toed lizard1 12–month petition finding

Pygmy rabbit (rangewide)1 12–month petition finding

Kokanee – Lake Sammamish population1 12–month petition finding

Cactus ferruginous pygmy-owl1 12–month petition finding

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ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED—Continued

Species Action

Northern leopard frog 12–month petition finding

Tehachapi slender salamander 12–month petition finding

Coqui Llanero 12–month petition finding

Susan’s purse-making caddisfly 12–month petition finding

White-sided jackrabbit 12–month petition finding

Jemez Mountains salamander 12–month petition finding

Dusky tree vole 12–month petition finding

Eagle Lake trout1 12–month petition finding

29 of 206 species 12–month petition finding

Desert tortoise – Sonoran population 12–month petition finding

Gopher tortoise – eastern population 12–month petition finding

Amargosa toad 12–month petition finding

Wyoming pocket gopher 12–month petition finding

Pacific walrus 12–month petition finding

Wrights marsh thistle 12–month petition finding

67 of 475 southwest species 12–month petition finding

9 Southwest mussel species 12–month petition finding

14 parrots (foreign species) 12–month petition finding

Southeastern pop snowy plover & wintering pop. of piping plover1 90–day petition finding

Eagle Lake trout1 90–day petition finding

Ozark chinquapin1 90–day petition finding

Smooth-billed ani1 90–day petition finding

Bay Springs salamander1 90–day petition finding

Mojave ground squirrel1 90–day petition finding

32 species of snails and slugs1 90–day petition finding

Calopogon oklahomensis1 90–day petition finding

42 snail species 90–day petition finding

White-bark pine 90–day petition finding

Puerto Rico harlequin 90–day petition finding

Fisher – Northern Rocky Mtns. population 90–day petition finding

Puerto Rico harlequin butterfly1 90–day petition finding

42 snail species (Nevada & Utah) 90–day petition finding

HI yellow-faced bees 90–day petition finding

Red knot roselaari subspecies 90–day petition finding

Honduran emerald 90–day petition finding

Peary caribou 90–day petition finding

Western gull-billed tern 90–day petition finding

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ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED—Continued

Species Action

Plain bison 90–day petition finding

Giant 90–day petition finding

Mexican gray wolf 90–day petition finding

Spring Mountains checkerspot butterfly 90–day petition finding

Spring 90–day petition finding

San Francisco manzanita 90–day petition finding

Bay skipper 90–day petition finding

Unsilvered fritillary 90–day petition finding

Texas kangaroo rat 90–day petition finding

Spot-tailed earless lizard 90–day petition finding

Eastern small-footed bat 90–day petition finding

Northern long-eared bat 90–day petition finding

Prairie chub 90–day petition finding

10 species of Great Basin butterfly 90–day petition finding

High Priority Listing Actions3

19 Oahu candidate species3 (16 plants, 3 damselflies) (15 with LPN = 2, 3 with LPN = 3, 1 with LPN =9) Proposed listing

17 Maui-Nui candidate species3 (14 plants, 3 tree snails) (12 with LPN = 2, 2 with LPN = 3, 3 with LPN = Proposed listing 8)

Sand dune lizard3 (LPN = 2) Proposed listing

2 Arizona springsnails3 (Pyrgulopsis bernadina (LPN = 2), Pyrgulopsis trivialis (LPN = 2)) Proposed listing

2 New Mexico springsnails3 (Pyrgulopsis chupaderae (LPN = 2), Pyrgulopsis thermalis (LPN = 11)) Proposed listing

2 mussels3 (rayed bean (LPN = 2), snuffbox No LPN) Proposed listing

2 mussels3 (sheepnose (LPN = 2), spectaclecase (LPN = 4),) Proposed listing

Ozark hellbender2 (LPN = 3) Proposed listing

Altamaha spinymussel3 (LPN = 2) Proposed listing

5 southeast fish3 (rush darter (LPN = 2), chucky madtom (LPN = 2), yellowcheek darter (LPN = 2), Proposed listing Cumberland darter (LPN = 5), laurel dace (LPN = 5))

8 southeast mussels (southern kidneyshell (LPN = 2), round ebonyshell (LPN = 2), pearlshell Proposed listing (LPN = 2), southern sandshell (LPN = 5), fuzzy pigtoe (LPN = 5), Choctaw bean (LPN = 5), narrow pigtoe (LPN = 5), and tapered pigtoe (LPN = 11))

3 Colorado plants3 (Pagosa skyrocket (Ipomopsis polyantha) (LPN = 2), Parchute beardtongue Proposed listing (Penstemon debilis) (LPN = 2), Debeque phacelia (Phacelia submutica) (LPN = 8)) 1 Funds for listing actions for these species were provided in previous FYs. 2 We funded a proposed rule for this subspecies with an LPN of 3 ahead of other species with LPN of 2, because the threats to the species were so imminent and of a high magnitude that we considered emergency listing if we were unable to fund work on a proposed listing rule in FY 2008. 3 Funds for these high-priority listing actions were provided in FY 2008 or 2009.

We have endeavored to make our processes or achieve economies of scale, We intend that any proposed listing actions as efficient and timely as such as by batching related actions reclassification of the delta smelt will be possible, given the requirements of the together. Given our limited budget for as accurate as possible. Therefore, we relevant law and regulations, and implementing section 4 of the Act, these will continue to accept additional constraints relating to workload and actions described above collectively information and comments from all personnel. We are continually constitute expeditious progress. concerned governmental agencies, the considering ways to streamline scientific community, industry, or any

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other interested party concerning this Author 1973, as amended (16 U.S.C. 1531 et finding. The primary authors of this notice are seq.). References Cited the staff members of the Bay-Delta Fish Dated: March 26, 2010 and Wildlife Office (see ADDRESSES Jeffrey L. Underwood, A complete list of references cited is section). available on the Internet at http:// Acting Director, Fish and Wildlife Service. www.regulations.gov and upon request Authority [FR Doc. 2010–7904 Filed 4–6–10; 8:45 am] from the Sacramento Fish and Wildlife The authority for this action is section BILLING CODE 4310–55–S Office (see ADDRESSES section). 4 of the Endangered Species Act of

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