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. 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, 1 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 [INSERT DATE OF FEDERAL REGISTER PUBLICATION]. 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. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339. 2 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 3 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. 4 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 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 5 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, 6 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.