Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 16169 

2. Does Executive Order 13175 Apply to 

This Proposed Rule? 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). Proposing a site to the NPL does 

not impose any costs on a tribe or 

require a tribe to take remedial action. 

Thus, Executive Order 13175 does not 

apply to this proposed rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

1. What Is Executive Order 13045? 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

2. Does Executive Order 13045 Apply to 

This Proposed Rule? 

This proposed rule is not subject to 

Executive Order 13045 because it is not 

an economically significant rule as 

defined by Executive Order 12866, and 

because the Agency does not have 

reason to believe the environmental 

health or safety risks addressed by this 

proposed rule present a 

disproportionate risk to children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Usage 

Is This Rule Subject to Executive Order 

13211? 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

Further, we have concluded that this 

rule is not likely to have any adverse 

energy impacts because proposing a site 

to the NPL does not require an entity to 

conduct any action that would require 

energy use, let alone that which would 

significantly affect energy supply, 

distribution, or usage. Thus, Executive 

Order 13175 does not apply to this 

action. 

I. National Technology Transfer and 

Advancement Act 

1. What Is the National Technology 

Transfer and Advancement Act? 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, section 12(d) (15 U.S.C. 272 note), 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

2. Does the National Technology 

Transfer and Advancement Act Apply 

to This Proposed Rule? 

No. This proposed rulemaking does 

not involve technical standards. 

Therefore, EPA did not consider the use 

of any voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

1. What Is Executive Order 12898? 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

2. Does Executive Order 12898 Apply to 

This Rule? 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. As this rule does not 

impose any enforceable duty upon 

State, tribal or local governments, this 

rule will neither increase nor decrease 

environmental protection. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Oil pollution, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 

3 CFR, 1987 Comp., p. 193. 

Dated: April 1, 2009. 

Barry N. Breen, 

Acting Assistant Administrator, Office of 

Solid Waste and Emergency Response. 

[FR Doc. E9–7824 Filed 4–7–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS-R8-ES-2008-0045; MO 922105 0083- 

B2] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding on a 

Petition to List the San Francisco BayDelta Population of the Longfin Smelt 

(Spirinchus thaleichthys) as 

Endangered 

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 population 

of the longfin smelt (Spirinchus 

thaleichthys) as endangered with 

critical habitat under the Endangered 

Species Act of 1973, as amended (Act). 

After a thorough review of all available 

scientific and commercial information, 

we find that the San Francisco BayDelta population of the longfin smelt 

does not meet our definition of a 

distinct population segment (DPS), as 

identified in our DPS policy (61 FR 

4721, February 7, 1996). As a result, 

listing the species as a DPS is not 

warranted. However, we are initiating a 

status assessment of the longfin smelt, 

and we solicit information on the status 

of the species range wide. 

DATES: The finding announced in the 

document was made on April 9, 2009. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.regulations.gov and http:// 


dwashington3 on PROD1PC60 with PROPOSALS
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www.fws.gov/sacramento. Supporting 

documentation we used in preparing 

this finding are available for public 

inspection, by appointment, during 

normal business hours at the U.S. Fish 

and Wildlife Service, Sacramento Fish 

and Wildlife Office, 2800 Cottage Way, 

Room W-2605, Sacramento, CA 95825; 

telephone 916-414-6600; or facsimile 

916-414-6712. Please submit any new 

information, materials, comments, or 

questions concerning this finding to the 

above street address or fax. 

FOR FURTHER INFORMATION CONTACT: For 

information on this finding, contact 

Susan Moore, Field Supervisor, or 

Arnold Roessler, Listing Program 

Coordinator, of the Sacramento Fish and 

Wildlife Office (see ADDRESSES). If you 

use a telecommunications device for the 

deaf (TDD), call the Federal Information 

Relay Service (FIRS) at 1-800-877-8339. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 4(b)(3)(B) of the Act (16 

U.S.C. 1531 et seq.) requires that, for 

any petition containing substantial 

scientific and commercial information 

indicating that listing may be warranted, 

we make a finding within 12 months of 

the date of our receipt of the petition on 

whether the petitioned action is: (a) not 

warranted, (b) warranted, or (c) 

warranted, but the immediate proposal 

of a regulation implementing the 

petitioned action is precluded by other 

pending proposals to determine whether 

any species is threatened or endangered, 

and expeditious progress is being made 

to add or remove qualified species from 

the Lists of Endangered and Threatened 

Wildlife and Plants. Such 12–month 

findings are to be published promptly in 

the Federal Register. This finding is 

based on our determination, based on 

the limited evidence available, that the 

San Francisco Bay-Delta population of 

longfin smelt is not a valid distinct 

population segment (DPS) under our 

Distinct Population Segment Policy (61 

FR 4721, February 7, 1996), and, 

therefore, cannot be considered a 

listable entity under section 3(16) of the 

Act. 

Previous Federal Actions 

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 

population of the longfin smelt as a 

distinct population segment (DPS) and 

designate critical habitat for the species 

concurrent with the listing. The petition 

was clearly identified as a petition for 

a listing rule and contained the names, 

signatures, and addresses of the 

requesting parties. 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 San 

Francisco Bay-Delta Population of the 

longfin smelt as a DPS may be 

warranted, and we initiated a status 

review. However, in that notice, we did 

not make a final determination that the 

San Francisco Bay-Delta Population of 

the longfin smelt was a DPS; we only 

stated that the petition presented 

substantial information indicating that 

listing as a DPS may be warranted and 

that we would finalize our 

determination in our status review. This 

notice constitutes the 12–month finding 

on the August 8, 2007, petition to list 

the San Francisco Bay-Delta population 

of the longfin smelt as a DPS and 

designate critical habitat for the species 

concurrent with the listing. 

Species Description 

The following species description is 

taken from U.S. Fish and Wildlife 

Service 1995, p. 47, except where cited 

otherwise. Longfin smelt is a pelagic 

(lives in open water), estuarine fish that 

typically measures 3.5 to 4.3 inches (in) 

(90-110 millimeters (mm)) standard 

length, although third-year females may 

grow up to 5.9 in (150 mm) (Moyle 

2002, p. 236). 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 in California by their long 

pectoral fins, incomplete lateral line, 

weak or absent striations on their 

opercular (covering the gills) bones, low 

numbers of scales in the lateral series 

(54 to 65), and long maxillary bones (in 

adults, these bones extend just short of 

the posterior margin of the eye). 

Taxonomy 

The longfin smelt belongs to the true 

smelt family Osmeridae, and is one of 

three species in its genus; the night 

smelt (Spirinchus starksi) co-occurs in 

California and the shishamo (S. 

lanceolatus) occurs in northern Japan 

(McAllister 1963, pp. 10 and 15). 

Because of its distinctive characteristics, 

the San Francisco 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 north-south 

cline rather than a discrete set; a 

subsequent study using electrophoresis 

of allozymes (proteins used as genetic 

markers because DNA contains 

information that is used by cells to build 

proteins) showed that populations from 

Lake Washington near Seattle, 

Washington, and the Sacramento-San 

Joaquin Delta in California are similar 

genetically (Stanley et al. 1995, p. 390). 

The study did, however, find that the 

Sacramento-San Joaquin Delta 

population of longfin smelt differs in 

allele (alternative form of a gene) 

frequencies from the population in Lake 

Washington (Stanley et al. 1995, p. 390). 

Delta smelt and longfin smelt hybrids 

have been observed in the San Francisco 

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 

The longfin smelt is a euryhaline 

(tolerant of variable salinities) pelagic 

fish that inhabits various depths of the 

water column depending on the 

individual’s life stage. Longfin smelt 

have been found throughout the year in 

fresh and brackish waters with salinities 

ranging from 14 to 28 parts per 

thousand (ppt) (CDFG 2001, p. 477). 

Adults can typically be found in the 

middle or lower part of the water 

column (Moyle 2002, p. 236), while 

larvae maintain position in the upper 

part of the water column, where they are 

usually found. Longfin smelt reportedly 

cannot tolerate water temperatures 

greater than 68 degrees Fahrenheit (°F) 

(20 degrees Celsius (°C)) (Moyle 2002, p. 

236), and will move farther downstream 

(west) during the summer months when 

water temperatures in the Delta are 

higher. Adult longfin smelt occupy 

water at temperatures from 61 to 68 °F 

(16 to 20 °C), with spawning probably 

occurring in water with temperatures 

between 44.5 to 58 °F (7.0 to 14.5 °C) 

(Wang 1986, pp. 6-9). 

Longfin smelt prey primarily on 

opossum shrimp (Neomysis mercedis) 

and other small crustaceans 

(Acanthomysis sp.), although copepods 

such as the calanoid copepod 

(Pseudodiatomus forbesi) and cyclopoid 

copepod (Acanthocyclops vernalis) 

(Hobbs et al. 2006, p. 907) and other 

crustaceans are also preyed upon, 

especially by smaller fish (Moyle 2002, 

p. 236). Longfin smelt are preyed upon 

by fishes, birds, and mammals (Barnhart 

et al. 1992, p. 44) and are a major prey 

item of harbor seals (Phoca vitulina) in 

the Columbia River (Service 1995, p. 

51). Predation of longfin smelt in the 

San Francisco Bay Estuary is known to 

occur by both striped bass (Morone 


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saxatilis) and inland silversides 

(Menidia beryllina), but the effects of 

predation on the population are not well 

understood (Moyle 2002, p. 238). In the 

ocean, longfin smelt feed primarily on 

small crustaceans, but may also feed on 

jellyfish and larval fish (Barnhart et al. 

1992, p. 44). 

Reproduction 

Longfin smelt may spawn as early as 

November and as late as June, although 

typically spawning occurs from 

February to April (Moyle 2002, p. 236). 

However, longfin smelt at various life 

stages are detected in the San Francisco 

Bay estuary trawl surveys in numerous 

months of the year (Rosenfield and 

Baxter 2007, p. 1578), suggesting that 

the spawning period may not be 

restricted to November to June or that 

growth and development between 

individuals varies. Spawning occurs in 

areas of relatively low salinity, which 

are considered essential nursery habitat 

for estuarine organisms (Jassby et al. 

1995, p. 284). Spawning usually occurs 

over rocky or gravelly substrates and 

aquatic plants (Moyle 2002, p. 236). 

Female longfin smelt produce between 

5,000 to 24,000 eggs which stick to the 

substrate, and hatch within 40 days 

depending on the water temperature 

(CDFG 2001, p. 477). Newly hatched 

embryos are transported in the upper 

portion of the water column 

downstream (west) into more brackish 

parts of the San Francisco Bay-Delta 

system (Moyle 2002, p. 236). Longfin 

smelt usually live for 2 years, although 

some individuals may spawn as 1- or 3– 

year-old fish (Moyle 2002, p. 236), and 

die soon after spawning. 

Range and Extant Distribution 

The historical and current range of the 

longfin smelt is from Alaska southward 

to the San Francisco Bay-Delta in 

California, which includes the Delta, 

Suisun Marsh, San Pablo Bay, and the 

San Francisco Bay to the Golden Gate. 

One fish was found in the Monterey Bay 

(south of the San Francisco Bay-Delta) 

in California (Eschmeyer 1983, p. 82; 

Wang 1986, pp. 6-10). In Alaska, longfin 

smelt are known from Hinchinbrook 

Island, Prince William Sound, Dixon 

Entrance, Yakutat Bay, and Cook Inlet 

(Alaska Natural Heritage Program 

(ANHP) 2006, p. 3). In Washington, the 

range includes Willapa Bay, Skagit Bay, 

Columbia River, Grays Harbor, and 

Puget Sound; in Oregon, the range 

includes Coos Bay and Yaquina Bay 

(ANHP 2006, p. 3). Relative to longfin 

smelt in the San Francisco Bay-Delta, 

the nearest confirmed breeding 

population of longfin smelt occurs in 

the Columbia River, approximately 640 

miles (mi) (1,029 kilometers (km)) north 

of the San Francisco Bay-Delta (Randall 

Baxter, CDFG, pers. comm. 2008). In 

California, longfin smelt are known 

from (north to south) the Klamath River, 

Humboldt Bay and its tributaries, the 

Eel River, the Van Duzen River, the 

Russian River, and the San Francisco 

Bay-Delta (Moyle 2002, p. 235). The 

species was previously described as 

‘‘weakly anadromous’’ (Fry 1973, p. 88); 

however, new research has found that at 

least part of the San Francisco Bay-Delta 

population is anadromous (living 

mostly in the ocean and spawning in 

fresh water) (Rosenfield and Baxter 

2007, p. 1590). Non-anadromous landlocked populations occur in Lakes 

Harrison and Pit in British Columbia, 

and Lakes Washington and Union in 

Washington (Page and Burr 1991, p. 57). 

Longfin smelt are dispersed broadly 

in the San Francisco Bay-Delta estuary 

by high outflows and currents, which 

could transport larvae or small juveniles 

long distances before they mature and 

become demersal (living near the 

bottom of the water column) (Baxter 

2008, p. 1). Unverified reports exist of 

longfin smelt being captured 3 to 4 mi 

(5 to 6 km) offshore in northern 

California (Service 1994, p. 3), but the 

ecology and behavior of longfin smelt in 

the open ocean remains largely 

unstudied. We are unaware of any 

studies assessing the swimming abilities 

of longfin smelt, but they may be 

comparable to juvenile salmon with the 

capability of swimming back into 

estuaries from the ocean (Moyle 2008, p. 

1). We believe it is likely that 

individuals from the San Francisco BayDelta estuary population could be 

transported via ocean currents, north to 

the Russian River, Eel River/Humboldt 

Bay, and Klamath River estuaries, 

particularly during high outflow years, 

which are associated with northward 

ocean currents in the winter. It is also 

likely that individuals from northern 

estuaries may be transported to the San 

Francisco Bay-Delta estuary via 

southward (summer) currents, although 

the main southern current (the 

California current) is farther offshore 

than the northern current (the Davidson 

current). Humboldt Bay and the 

Klamath River are more than 260 mi 

(418 km) and 320 mi (515 km) away by 

sea, respectively, from the San 

Francisco Bay. It is impossible to 

reliably approximate how many 

individuals as a proportion of the 

population may be transported by 

currents or swim between the San 

Francisco Bay-Delta and the other 

estuaries. 

Distinct Population Segment 

We consider a species for listing 

under the Act if available information 

indicates such an action might be 

warranted. ‘‘Species’’ is defined in 

section 3 of the Act to include any 

subspecies of fish or wildlife or plants, 

and any distinct vertebrate population 

segment of fish or wildlife that 

interbreeds when mature (16 U.S.C. 

1532(16)). We, along with the National 

Marine Fisheries Service (now the 

National Oceanic and Atmospheric 

Administration–Fisheries (NOAA – 

Fisheries)), developed the Policy 

Regarding the Recognition of Distinct 

Vertebrate Population Segments (DPS 

Policy) (February 7, 1996; 61 FR 4721) 

to help us in determining what 

constitutes a DPS. Under our DPS 

policy, we consider three elements in a 

decision regarding the status of a 

possible DPS as endangered or 

threatened under the Act. These 

elements include: (1) The discreteness 

of the population segment 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. If we 

determine that a population segment 

meets the discreteness and significance 

standards, then the level of threat to that 

population segment is evaluated based 

on the five listing factors established by 

the Act to determine whether listing the 

DPS as either threatened or endangered 

is warranted. 

Discreteness 

The DPS policy states that a 

population 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); or 

(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. 

Significance 

Under our DPS Policy, once we have 

determined that a population segment is 

discrete, we consider its biological and 

ecological significance to the larger 

taxon to which it belongs. This 

consideration may include, but is not 

limited to: (1) Persistence of the discrete 


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population segment in an ecological 

setting that is unusual or unique for the 

taxon; (2) evidence that loss of the 

discrete population segment would 

result in a significant gap in the range 

of the 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. 

If a population is considered both 

discrete and significant (i.e., it is a 

distinct population segment) its 

evaluation for endangered or threatened 

status will be based on the Act’s 

definitions of those terms and a fivefactor analysis will be completed. 

Distinct Population Segment Analysis 

Discreteness 

The petitioners claim the San 

Francisco Bay-Delta population of 

longfin smelt is discrete because there is 

no evidence that large numbers of 

longfin smelt migrate between 

populations within their range in the 

eastern Pacific or along the California 

coast. Additionally, they cite survey 

data indicating longfin smelt 

populations within several hundred 

miles of the San Francisco Bay-Delta are 

small and possibly declining, which 

leads the petitioners to conclude that it 

is unlikely that longfin smelt in the San 

Francisco Bay-Delta are supplemented 

by immigration from other areas. 

Additionally, the petitioners cite Moyle 

(2002, p. 235) who concluded the 

longfin smelt in the San Francisco BayDelta are reproductively isolated from 

other population units. 

The range of the longfin smelt extends 

from Prince William Sound in Alaska, 

south to the San Francisco Bay-Delta. In 

California, longfin smelt have been 

found in the lower reaches and estuaries 

of the Klamath, Eel, Van Duzen (a 

tributary to the Eel River), and Russian 

Rivers, but populations in these areas 

are currently considered relatively 

small. We are unaware of historical 

numbers in these areas. Longfin smelt 

were historically abundant in Humboldt 

Bay, but this population is in decline 

(The Bay Institute et al. 2007, p. 1). The 

San Francisco Bay-Delta population is 

the southernmost self-sustaining 

population of longfin smelt (The Bay 

Institute et al. 2007, p. ii). One 

individual was found in Monterey Bay 

(Moyle 2002, p. 236), but a selfsustaining population is not considered 

present there. See Range and Extant 

Distribution for more information. 

Geographical Isolation 

The petitioners assert that the San 

Francisco Bay-Delta population is 

geographically isolated from all other 

populations, that there is no evidence of 

large numbers of longfin smelt migrating 

between populations, and that it is 

highly unlikely that the San Francisco 

Bay-Delta population is supplemented 

by populations from other areas. The 

petitioners requested the Service list the 

San Francisco Bay-Delta population of 

the longfin smelt as a DPS. We note that 

standard set forth in the DPS policy is 

that a DPS be ‘‘markedly separated’’ 

from other populations—thus, while 

absolute separation is not required, 

neither are ‘‘large numbers’’ of 

individuals migrating between 

populations. 

Although the range of longfin smelt 

extends into Canada, the San Francisco 

Bay-Delta population is not separated 

from all other populations by an 

international border. Therefore, the San 

Francisco Bay-Delta population cannot 

be discrete due to be delimiting by an 

international border. 

We are unaware of any targeted 

sampling efforts for longfin smelt, so the 

information we have about their 

distribution and numbers and our 

conclusions outlined below have been 

gleaned from past and ongoing sampling 

efforts that target other aquatic 

organisms. The following outlines the 

survey efforts and detections of longfin 

smelt in California north of San 

Francisco Bay as a result of these nontarget sampling efforts. 

In the Klamath River, longfin smelt 

were found in low numbers in the early 

1990s using electrofishing techniques 

from river mile 2 to river mile 4 (river 

km 3.2 to 6.4). The Klamath River is 

located approximately 320 mi (515 km) 

by sea north of the San Francisco BayDelta. Additional sampling by the Yurok 

Tribe in the Klamath River in recent 

years did not identify any longfin smelt; 

however, this sampling targeted 

salmonids and, as a result, any osmerids 

that may have been inadvertently 

captured were not documented (Gale 

2008, p. 1). Also, because standard 

sampling methods for salmonids are 

likely highly inefficient for collecting 

longfin smelt, their presence or absence 

in the Klamath River cannot be 

determined based on the Yurok Tribe 

sampling data. 

In Humboldt Bay in Humboldt 

County, California, longfin smelt 

population numbers have likely always 

been small (Moyle 2002, p. 237). 

Humboldt Bay is located approximately 

260 mi (418 km) by sea north of the San 

Francisco Bay-Delta. A total of 12 

longfin smelt were caught in north 

Humboldt Bay during surveys using a 

variety of gear types from 2003 to 2005 

(Pinnix et al. 2005, p. 11), and one adult 

was netted in Freshwater Creek (a 

tributary to Humboldt Bay) in February 

2008 (Justin Garwood 2008, p. 1). 

Eleven longfin smelt were found at a 

total of four sites in Humboldt Bay 

between 2000 to 2001 (Cole 2004, p. 20). 

Survey efforts conducted by California 

State University at Humboldt caught 

only about half a dozen longfin smelt in 

Humboldt Bay in the past 10 years of 

non-target sampling using both trawls 

and beach seines (Mulligan 2008, p. 1). 

In addition, non-target sampling around 

a dredge disposal site about 2 mi (3.2 

km) offshore from Humboldt Bay yields 

an average of a few dozen longfin smelt 

every year (Mulligan 2008, p. 1). 

The Humboldt Bay tributaries of 

Hookton Slough, Salmon Creek, and Elk 

River Slough were sampled from 2005 

to 2006, and Freshwater/Eureka Slough 

and its tributaries were sampled from 

2003 to 2006. Longfin smelt were found 

in very low numbers during these years 

in all of these tributaries (Mike Wallace, 

2008, p. 1). Spawning longfin smelt 

have been recorded in the Van Duzen 

River and in the Eel River drainage in 

Humboldt County (Moyle 2002, p. 235), 

but the current status of longfin smelt 

and sampling efforts in these rivers is 

unknown. Humboldt Bay and the 

Klamath River estuaries may also 

support small but self-sustaining 

populations of longfin smelt. Pre-spawn 

and spent (post-spawn) adults have 

been detected in the Klamath River 

estuary as recently as 2001, and adult 

and juvenile longfin smelt have been 

detected in recent years in Humboldt 

Bay, suggesting spawning and 

recruitment may be occurring in these 

estuaries (Baxter 2008, p. 1). 

In the Russian River in Sonoma 

County, California (from the river mouth 

to approximately 10 mi (16 km) 

upriver), low numbers of longfin smelt 

were caught using otter trawls from 

1997 to 2000 (Sonoma County Water 

Agency (SCWA) 1999, Appendices B-4 

and B-8; SCWA 2000, Appendices B-8, 

B-10, B-11, and B-12; SCWA 2001, pp. 

18-19). The Russian River estuary is 

approximately 75 mi (120 km) by sea 

north of the San Francisco Bay-Delta. 

No longfin smelt were caught in the 

Russian River using beach seines 

between 2003 and 2007 (SCWA 2004, p. 

7; SCWA 2005, pp. 7-8; SCWA 2006, pp. 

10-11; Cook 2008, p. 1). However, it is 

likely that beach seining is an 

ineffective method for determining 

presence or absence of longfin smelt, 


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Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 16173 

because it does not sample the depths 

(typically 15 to 22 feet (ft) (4 to 7 meters 

(m)) or the middle of the river channel 

where longfin smelt were previously 

found in the Russian River using otter 

trawls. 

One individual longfin smelt was 

found in Abbotts Lagoon at Point Reyes 

National Seashore in 1999 (Saiki and 

Martin 2001, p. 128), and near-shore 

midwater trawl surveys conducted by 

the NOAA – Fisheries in the spring for 

juvenile rockfish also detected longfin 

smelt and other smelt not identified to 

species at several locations from Cyprus 

Point near Monterey Bay to Point Reyes 

near Bodega Bay in 1984, 1994, and 

2001 (Baltz, 2008, pp. 1-32). Although 

sampling continues, smelts caught have 

not been identified to species since 

2001, and many of the stations where 

longfin smelt were identified in the 

1980s and 1990s near the Gulf of the 

Farallones have not been sampled since 

1996 (Sakuma, 2008, p. 1). 

The City of San Francisco detected 

longfin smelt a few miles offshore in the 

Pacific Ocean in 1983 and 1984, 

suggesting that individuals from the San 

Francisco estuary disperse beyond the 

Golden Gate Bridge (City of San 

Francisco 1985, pp. 5-8; Rosenfield and 

Baxter 2007, p. 1590). Additional 

surveys conducted between 1987 and 

2007 were not examined for pelagic fish 

species, so it is possible that longfin 

smelt were captured but not identified 

during these surveys (Kellogg 2008, p. 

1). 

Summary of Geographic Isolation 

Although no physical barriers exist 

between the San Francisco Bay-Delta 

and estuarine habitat to the north, the 

distance that longfin smelt are able to 

travel out into the open ocean or 

northward along the coast to reach these 

areas is unknown. The 1995 

Sacramento/San Joaquin Delta Native 

Fishes Recovery Plan (Service 1995, pp. 

47-65) states that the San Francisco 

estuary population ‘‘is isolated from 

other populations.’’ However, as 

described above in the Range and Extant 

Distribution section, it is likely that 

longfin smelt are moving or being 

transported via currents between the 

San Francisco Bay-Delta estuary and 

other estuaries to the north. A recent 

review of the abundance and 

distribution of longfin smelt within the 

San Francisco Bay-Delta concluded that 

at least a portion of the longfin smelt 

population within the San Francisco 

Bay-Delta is anadromous and routinely 

disperses outside the San Francisco 

Bay-Delta estuary and into the Pacific 

Ocean (Rosenfield and Baxter 2007, p. 

1590). Although we know of no studies 

assessing swimming ability of longfin 

smelt, it may be comparable to juvenile 

salmon, which have the capability to 

swim back into estuaries from the ocean 

(Moyle 2008, p. 1). Based on the recent 

information that a portion of the San 

Francisco Bay-Delta population of 

longfin smelt are anadromous and able 

to swim into and out of the San 

Francisco Bay-Delta, it is likely that 

individuals have the ability to swim 

into and out of ocean currents and into 

and between estuaries, including 

estuaries outside of the San Francisco 

Bay-Delta estuary. In addition, other 

individuals may be transported by other 

mechanisms, such as high outflows and 

ocean currents (see Range and Extant 

Distribution section). The distance that 

longfin smelt could swim or be 

transported from the San Francisco BayDelta is unknown. It is possible that the 

San Francisco Bay-Delta population is 

supplementing smaller nearby estuaries 

(such as the Russian River); therefore, 

Moyle’s (2002, p. 235) conclusion that 

longfin smelt in the San Francisco BayDelta being reproductively isolated is 

questionable. Additionally, it is possible 

that other self-sustaining estuaries (such 

as Humboldt Bay, Coos Bay, Columbia 

River) may be supplementing smaller 

estuaries in their vicinities. Therefore, 

we have determined the San Francisco 

Bay-Delta population of longfin smelt is 

not geographically isolated from other 

longfin smelt populations. 

Genetic Separation 

The petitioner states that the San 

Francisco Bay-Delta population of 

longfin smelt differs genetically from a 

population in Lake Washington in 

Washington State (Stanley et al. 1995, 

pp. 390-396). The petitioners conclude 

from the single study that the San 

Francisco Bay-Delta population differs 

markedly from other populations 

genetically and that additional genetic 

analysis will confirm that the San 

Francisco Bay-Delta population 

represents an evolutionarily 

independent lineage of this species and 

qualifies as a DPS. 

Only one genetic study has addressed 

longfin smelt. Stanley et al. (1995, pp. 

390-396) used electrophoresis of 

allozymes to examine genetic variation 

within and between two populations of 

longfin smelt. Allozymes are proteins 

used as genetic markers and have been 

used to assess genetic variation for 

many years. Allozyme studies have the 

advantage of being relatively 

inexpensive and straightforward, once 

the basic technique is developed for a 

group. However, drawbacks of using 

electrophoretic allozyme studies 

include the limited number of proteins 

that can be screened (Parker et al. 1998, 

pp. 362-363) and the fact that they often 

detect little variability (Haig 1998, p. 

419). It is not uncommon for population 

biologists to encounter species for 

which allozymes cannot be used as 

genetic markers because they lack 

variation (Parker et al. 1998, pp. 362- 

363). 

Stanley et al. (1995, p. 395) found the 

San Francisco Bay-Delta population and 

Lake Washington populations of longfin 

smelt were significantly different in 

allele frequencies at several loci (gene 

locations). However, the authors also 

stated the overall genetic dissimilarity 

was within the range of other 

conspecific fish species (Stanley et al. 

1995, p. 395) and concluded their 

research indicates longfin smelt from 

Lake Washington and the San Francisco 

Bay-Delta are conspecific (of the same 

species) despite the large geographic 

separation. We believe that this study is 

not well suited to address whether the 

San Francisco Bay-Delta longfin smelt 

population is markedly separated from 

other populations of longfin smelt (the 

criterion of the DPS policy) because 

only two locations were sampled. These 

two locations are ecologically different 

from one another and widely separated 

geographically. The life history and 

ecology of the landlocked Lake 

Washington longfin smelt population is 

different than other estuary populations, 

and may have been geographically 

separated for many years from other 

populations with access to the open 

ocean. A more appropriate comparison 

would have been to analyze longfin 

smelt from a series of locations with 

access to the open ocean (e.g., Columbia 

River to Humboldt Bay) to assess the 

potential of genetic relatedness of 

longfin smelt from the San Francisco 

Bay-Delta and other populations. While 

the study indicates that Lake 

Washington and San Francisco BayDelta longfin smelt differ significantly at 

some allozyme loci, it does not evaluate 

the genetic relationship between these 

populations and intervening 

populations along the Pacific coast. 

Furthermore, at the time of their 

study, the authors believed the longfin 

smelt in Humboldt Bay to be rare or 

extinct but did acknowledge the 

existence of longfin smelt from the 

Klamath River, approximately 124 mi 

(200 km) north of Humboldt Bay. 

Stanley et al. (1995, p. 395) surmised 

that if the Humboldt Bay population 

was extinct, then genetic exchange 

between the Delta and Klamath River 

would be extremely unlikely. This line 

of reasoning appears to imply 

geographic isolation. However, based on 

more recent occurrence information, as 


dwashington3 on PROD1PC60 with PROPOSALS
16174 Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 

we have outlined above, longfin smelt 

are found in estuaries north of the San 

Francisco Bay-Delta, including the 

Russian River, Humboldt Bay, and the 

Klamath River. Also taking into account 

recent confirmation that a portion of the 

San Francisco Bay-Delta population of 

longfin smelt is fully anadromous and 

able to swim into and out of the San 

Francisco Bay-Delta, and that it is likely 

that individuals have the ability to swim 

into and out of ocean currents and into 

and between estuaries, including 

estuaries outside of the San Francisco 

Bay-Delta estuary, we believe the 

potential for genetic interchange exists. 

As mentioned above, research to 

evaluate any genetic differences 

between the San Francisco Bay-Delta 

longfin smelt and other coastal longfin 

smelt populations has not yet been 

completed. There is also no indication 

that longfin smelt differ 

morphologically between the San 

Francisco Bay-Delta population and 

other populations. Researchers from 

University of California at Davis have 

undertaken a study using more modern 

molecular techniques, which examines 

DNA directly rather than looking at the 

product derived from DNA (i.e., 

proteins) to determine genetic 

variability within and among 

populations in Northern California, 

Oregon, and Washington (May 2008, p. 

1). Additional study should provide 

more information on the distribution of 

genetic variation within the species and 

determine if longfin smelt from different 

locations are intermixing. We believe 

that while this additional study is 

needed, at this time we can not 

conclude that San Francisco Bay-Delta 

longfin smelt differ markedly from other 

populations in its genetic 

characteristics. Therefore, we have 

determined that, based on the best 

scientific and commercial information 

available, the San Francisco Bay-Delta 

population is not genetically distinct 

from other populations of longfin smelt. 

Determination of Discreteness 

Our DPS policy requires that when 

determining whether a population 

meets the definition of being a DPS, we 

must first consider discreteness of the 

population segment in relation to the 

remainder of the species to which it 

belongs. The population must be 

markedly separated from other 

population of the taxon as a 

consequence of physical, physiological, 

ecological, behavioral, genetic or 

morphological factors or as a result of 

international boundaries where 

significant differences in exploitation, 

management, conservation status, or 

regulatory mechanisms exist. If a 

population is considered discrete then 

we would consider the biological and 

ecological significance of the 

population. To be considered a DPS 

under our policy, the population must 

meet both the discreteness and 

significance aspects of the policy. 

We have determined that, based on 

the best scientific and commercial 

information available, the San Francisco 

Bay-Delta population of the longfin 

smelt is not markedly separated from 

the other populations of longfin smelt. 

The only available data to address the 

markedly separate standard for longfin 

smelt relate to geographic isolation and 

genetic uniqueness, and we do not find 

that these data indicate longfin smelt 

from the San Francisco Bay-Delta are 

markedly separated from other longfin 

smelt found elsewhere. Recent studies 

indicate that at least part of the San 

Francisco Bay-Delta population is 

anadromous and able to swim into and 

out of estuaries. Individuals may also be 

carried by currents from the San 

Francisco Bay-Delta to other estuaries 

outside the San Francisco Bay-Delta 

which leads us to the conclusion that 

longfin smelt may be able to disperse 

between populations. Although it is 

impossible without further study to 

reliably approximate how many 

individuals are being transported or 

swimming between the San Francisco 

Bay-Delta and the other estuaries, ‘‘large 

numbers’’ of migrating individuals are 

not required to rule out populations 

being markedly separated. Nor is 

absolute isolation required for 

populations to be markedly separated. 

On balance, the limited data available 

do not suggest that the San Francisco 

Bay-Delta population of the longfin 

smelt is markedly separate from 

populations outside the San Francisco 

Bay-Delta. In addition, the only genetic 

study conducted to date examined only 

Lake Washington and San Francisco 

Bay-Delta longfin smelt, a sampling 

scheme too limited to reasonably 

address whether longfin smelt in the 

San Francisco Bay-Delta differ 

genetically from other locations along 

the Pacific coast. Therefore, we have 

determined that the San Francisco BayDelta population of longfin smelt is not 

discrete as defined under our DPS 

policy. 

Significance 

Since the San Francisco Bay-Delta 

population of longfin smelt is not 

discrete as defined under our DPS 

policy, we do not need to evaluate the 

significance of the population to the 

species as a whole. 

Finding 

We have carefully assessed the best 

scientific and commercial information 

available regarding whether the San 

Francisco Bay-Delta population of the 

longfin smelt is a distinct population 

segment. We have reviewed the petition, 

information available in our files, and 

all information submitted to us 

following our 90–day petition finding 

(73 FR 24911, May 6, 2008). We also 

consulted with recognized smelt 

experts, including State and Federal 

agency biologists, academics, and 

individuals involved in sampling and 

surveying efforts for the longfin smelt. 

We find the San Francisco Bay-Delta 

population of the longfin smelt does not 

meet the discreteness criterion of our 

DPS policy (and therefore we did not 

undertake a significance review) and 

therefore is not a valid DPS. As a result, 

the San Francisco Bay-Delta population 

of the longfin smelt is not a listable 

entity under the Act and we will not 

complete a 5-factor analysis of the San 

Francisco Bay-Delta population of the 

longfin smelt in response to the August 

8, 2007, petition. This finding is based 

on information obtained on the 

potential for dispersal via ocean 

currents, and on information that a 

portion of the longfin smelt within the 

San Francisco Bay-Delta regularly 

disperse out to the Pacific Ocean and 

are fully anadromous. Once individuals 

emigrate from the San Francisco Bay 

Estuary they are likely transported by 

ocean currents and able to occupy 

estuaries outside of the San Francisco 

Bay-Delta for an undetermined amount 

of time. 

However, given the demonstrated 

anadromy of the San Francisco Bay 

Estuary population of longfin smelt and 

its potential for dispersal, we are 

initiating a range wide status assessment 

of the longfin smelt and are seeking 

information regarding: taxonomy, 

genetics, distribution, habitat selection, 

population density and trends, habitat 

trends, effects of management, dispersal 

and migratory capabilities or patterns of 

dispersal, and potential threats to the 

longfin smelt throughout its range in 

Alaska, Canada, Washington, Oregon, 

and California. Upon completion of this 

review, we will also evaluate whether 

the best available scientific information 

suggests that the San Francisco BayDelta population of the longfin smelt 

may be considered to occupy a 

significant portion of the range (SPR), 

and institute appropriate action. We 

encourage interested parties to continue 

to gather data that will assist in 

determining the status of the longfin 

smelt. New information should be 


dwashington3 on PROD1PC60 with PROPOSALS
Federal Register / Vol. 74, No. 67 / Thursday, April 9, 2009 / Proposed Rules 16175 

submitted to the Field Supervisor, 

Sacramento Fish and Wildlife Office 

(see ADDRESSES). 

References Cited 

A complete list of all references cited 

in this proposal is available upon 

request. You may request a list of all 

references cited in this document from 

the Supervisor, Sacramento Fish and 

Wildlife Office (see ADDRESSES). 

Author 

The primary authors of this notice are 

staff members of the Sacramento Fish 

and Wildlife Office, U.S. Fish and 

Wildlife Service, 2800 Cottage Way, 

Sacramento, CA 95825. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: March 31, 2009. 

Rowan W. Gould, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. E9–8087 Filed 4–8–09; 8:45 am] 

BILLING CODE 4310-55-S 


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