[Federal Register Volume 74, Number 206 (Tuesday, October 27, 2009)]
[Proposed Rules]
[Pages 55177-55180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25524]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2009-0064]
[MO 922105 0083-B2]


Endangered and Threatened Wildlife and Plants; 90-day Finding on 
a Petition To List the American Dipper in the Black Hills of South 
Dakota as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the distinct population segment 
(DPS) of American dipper (Cinclus mexicanus unicolor) in the Black 
Hills of South Dakota as threatened or endangered and designate 
critical habitat under the Endangered Species Act of 1973, as amended 
(Act). For the purposes of this finding, we evaluated whether the 
petition presents substantial information to indicate whether the 
petitioned entity (the American dipper in the Black Hills of South 
Dakota) is a listable entity. Based on our review of the best available 
scientific and commercial information, we conclude that the American 
dipper in the Black Hills of South Dakota is not a listable entity 
under the Act. Because the petition did not present substantial 
information that the American dipper in the Black Hills of South Dakota 
is a DPS, we did not evaluate whether the information contained in the 
petition regarding threats was substantial. Therefore, we will not 
initiate a status review to determine if listing this subspecies is 
warranted in response to this petition. However, the public may submit 
to us new information concerning the subspecies, its status, or threats 
to it at any time.

DATES: You may submit new information concerning this subspecies for 
our consideration at any time.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov. Supporting documentation we used in preparing this 
finding is available for public inspection, by appointment, during 
normal business hours at the South Dakota Ecological Services Office, 
U.S. Fish and Wildlife Service, 420 South Garfield Avenue, Suite 400, 
Pierre, SD 57501. Please submit any new information, materials, 
comments, or questions concerning this finding to the above address.

FOR FURTHER INFORMATION CONTACT: Pete Gober, Field Supervisor, South 
Dakota Ecological Services Office (see ADDRESSES section) (telephone 
605-224-8693). If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. We 
are to base this finding on information provided in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files at the time we make the determination. 
To the

[[Page 55178]]

maximum extent practicable, we are to make this finding within 90 days 
of our receipt of the petition and publish our notice of this finding 
promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly review the status of the species (status review).
    We base this 90-day finding on information provided by the 
petitioners and our evaluation of that information in relation to 
information available in our files at the time of the petition review. 
This finding summarizes the information included in the petition and 
information available to us at the time of the petition review. Under 
section 4(b)(3)(A) of the Act and our regulations at 50 CFR 424.14(b), 
our review of a 90-day finding is limited to a determination of whether 
the information in the petition meets the ``substantial [scientific or 
commercial] information'' threshold.

Previous Federal Actions

    On March 28, 2003, the Biodiversity Conservation Alliance, Center 
for Native Ecosystems, and Jeremy Nichols petitioned the Service to 
list the Black Hills American dipper distinct population segment (DPS) 
as an endangered or threatened species. We received a Notice of Intent 
to sue from the petitioners on July 21, 2003, who subsequently filed a 
complaint with the U.S. District Court for the District of Columbia on 
August 20, 2004. On January 24, 2005, we reached a settlement agreement 
to publish a 90-day finding in the Federal Register by January 20, 
2006. On January 26, 2006, we determined in a 90-day finding that the 
Black Hills American dipper did not meet the elements for being a DPS 
and, therefore, was not a listable entity under the Act (71 FR 4341).

Petition

    On October 2, 2008, we received a petition dated September 29, 
2008, requesting that we list the DPS of American dipper in the Black 
Hills of South Dakota as threatened or endangered under the Act and 
designate critical habitat for that DPS. In addition, the petition 
requested emergency listing of the DPS. The petition, submitted by the 
Biodiversity Conservation Alliance, Center for Native Ecosystems, 
Native Ecosystems Council, and Prairie Hills Audubon Society, was 
clearly identified as a petition for a listing rule, and it contained 
the names, signatures, and addresses of the requesting parties. 
Included in the petition was supporting information regarding the 
subspecies' taxonomy and ecology, historical and current distribution, 
present status, and potential causes of decline. We acknowledged the 
receipt of the petition and addressed the request for emergency listing 
in a letter to Mr. Duane Short, dated December 5, 2008. The letter 
stated that we determined that the Black Hills population would need to 
meet our policy criteria as a DPS or a significant portion of the range 
of the subspecies before we can determine if emergency listing is 
necessary.

Species Information

    The American dipper is a small, gray passerine bird that inhabits 
western Canada, Mexico, and the western United States, including the 
Black Hills (Pettingill and Whitney 1965, p. 74; Anderson 2002, p. 2) 
of South Dakota. The American dipper utilizes permanent, clean, cold, 
and swift mountain streams (Price and Bock 1983, p. 2; Tyler and 
Ormerod 1994, p. 3; Kingery 1996, p. 4; Feck 2002, p. 2) with abundant 
and healthy populations of benthic macroinvertebrates, the dipper's 
prey (Ealey 1977, p. 104; Price and Bock 1983, p. 2; Tyler and Ormerod 
1994, p. 38; Kingery 1996, p. 6). Dippers are usually found in streams 
with rock, sand, and rubble substrates, which also are associated with 
the highest abundance of aquatic invertebrates. American dippers 
establish linear territories along a river in early spring (Kingery 
1996, p. 11). They remain in or near their territories most of the 
year, depending upon the availability of open water. Dipper nest sites 
can be found on streamside rock cliffs, waterfalls, large rocks in 
midstream, or under bridges (Kingery 1996, p. 14).

Distribution and Abundance

    The Black Hills are the eastern edge of the American dipper's 
range. The dipper is a permanent year-round resident of the Black Hills 
and has historically been known to inhabit nearly all permanent, fast-
flowing streams in the area (Pettingill and Whitney 1965, p. 74). There 
are few records of American dippers making long-distance flights, and 
these records do not substantiate that these movements contribute to 
the establishment of new populations (Kingery 1996, p. 4; Muelhausen 
1970, p. 136). No instances of long-distance dispersal of dippers 
between the Black Hills and the next nearest populations of American 
dipper to the west in the Big Horn Mountains of north-central Wyoming 
and the Laramie Range of east-central Wyoming have been documented. In 
addition to the apparent lack of long distance movements, the dipper 
population in the Black Hills is isolated from other populations by 
geographical barriers to dispersal in the form of extensive grasslands, 
poor-quality stream habitat, and the lack of water connections to 
dipper populations existing west of the Black Hills (Backlund 2001, p. 
1).
    Verified historical American dipper reports have been recorded on 
six streams or their tributaries in the Black Hills: French Creek, 
Rapid Creek, Box Elder Creek, Elk Creek, Whitewood Creek, and Spearfish 
Creek (Backlund 2001, pp. 2-4). Other streams are unable to support 
self-sustaining populations of dipper due to habitat degradation, 
erratic water flows, loss of water flow, poor water quality, and other 
impacts (Backlund 2001, p. 4). Currently, nesting dippers can be found 
on only two streams in the Black Hills--Spearfish Creek and Whitewood 
Creek (Lovett 2008, p. 2).
    Dipper nest surveys in the Black Hills were started in 1993 by 
South Dakota Game, Fish and Parks, and became more extensive from 2003 
to 2008. The lowest number of dippers reported on Spearfish Creek was 
10 in 1997, with only two nests found (Backlund 2001, p. 4). In 2008, 
the number of dippers reported on Spearfish Creek was approximately 54 
adults, with 38 nest attempts (Lovett 2008, p. 12). This is the second 
highest number of adults compared to 56 adults in both 2005 and 2006; 
there were 42 nest attempts in 2005 and 36 nest attempts in 2006. In 
2008, Whitewood Creek had six adults observed and four known nest 
attempts (Lovett 2008, p. 12). Select areas of French Creek, Rapid 
Creek, and Boxelder Creek were checked for dippers but neither dippers 
nor active nests were found (Lovett 2008, p. 37).

Distinct Vertebrate Population Segment

    The petitioners have asked us to consider listing a DPS of the 
American dipper in the Black Hills of South Dakota. Under the Act, we 
can consider for listing any species, subspecies, or DPS of any species 
of vertebrate fish or wildlife that interbreeds when mature. To 
implement the measures prescribed by the Act and its congressional 
guidance, we developed a joint policy with the National Oceanic and 
Atmospheric Administration entitled Policy Regarding the Recognition of 
Distinct Vertebrate Population Segments

[[Page 55179]]

under the Act (61 FR 4722; February 7, 1996) (DPS Policy). Under the 
DPS policy, we must consider three elements in making our decision 
whether an entity qualifies as a DPS that warrants listing as 
endangered or threatened under the Act. The three elements are: (1) The 
population segment's discreteness in relation to the remainder of the 
species to which it belongs; (2) the population segment's significance 
to the species to which it belongs; and (3) the population segment's 
conservation status in relation to the Act's standards for listing--
that is, when treated as if it were a species, is the population 
segment endangered or threatened? For the purposes of this finding, we 
evaluated whether the petition presented substantial information to 
indicate whether the petitioned entity (the American dipper in the 
Black Hills of South Dakota) is a listable entity.
Discreteness
    The DPS policy states that a population segment of a vertebrate 
species may be considered discrete if it satisfies either one of the 
following two conditions: (1) It must be markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors, or (2) it must be 
delimited by international governmental boundaries within which 
significant 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.
    Substantial information is presented in the petition to indicate 
that the Black Hills population may be markedly separated from other 
populations of the American dipper as a consequence of physical 
factors. The Black Hills is an isolated mountain range located within 
the plains of western South Dakota and northeastern Wyoming (Raventon 
1994, p. 15). The Great Plains, which entirely surround the Black 
Hills, create a major physical barrier separating the Black Hills 
American dipper populations from other Rocky Mountain populations to 
the west (Hall et al. 2002, p. 3). The Big Horn Mountains, 
approximately 241 to 322 kilometers (km) (150 to 200 miles (mi)) to the 
west, is the closest mountain range to the Black Hills (Froiland 1990, 
p. 11). The expanse of grassland separating the Black Hills from other 
mountain ranges is incapable of supporting American dippers and 
represents a significant barrier to dispersal (Backlund 2001, p. 1; 
Voelker 2002, p. 582). The streams and rivers of the Great Plains are 
described as typically silt-laden, turbid, alkaline, and subject to 
erratic flows which precludes their use by dippers (Smith and Hubert 
1989, p. 27).
    Information in the petition, as supported by information readily 
available in our files, suggests that there is a substantial physical 
isolation of the Black Hills population of the American dipper. 
Therefore, the petition presents substantial information indicating 
that the Black Hills population of the American dipper meets the 
condition for discreteness under our DPS policy that the population is 
markedly separated from other populations of the same taxon. The Black 
Hills population of the American dipper is located entirely within the 
United States, therefore the international governmental boundaries 
provision for discreteness does not apply.
Significance
    Under our DPS policy, if we determine that a population segment is 
discrete, we further consider that population's biological and 
ecological significance to the taxon to which it belongs, within the 
context that the DPS policy be used ``sparingly'' while encouraging the 
conservation of genetic diversity (61 FR 4722; February 7, 1996). This 
consideration may include, but is not limited to: (1) Persistence of 
the discrete population segment in an ecological setting unusual or 
unique for the taxon; (2) evidence that loss of the 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 historical range; and 
(4) evidence that the discrete population segment differs markedly from 
other populations of the subspecies in its genetic characteristics. 
These four considerations are addressed here:
    (1) Persistence of the population segment in an ecological setting 
that is unusual or unique for the taxon.
    The American dipper occupies permanent, clean, cold, and swift 
mountain streams throughout the western half of North America, 
including the Black Hills (Kingery 1996, p. 2). The petition contends 
that the streams in the Black Hills inhabited by dippers may be a 
unique ecological setting because the Black Hills themselves are a 
unique ecosystem. We recognize that the Black Hills have many unique 
ecological features, but information readily available in our files 
(Kingery 1996) indicates that the Black Hills are not unusual. These 
mountain ecosystems share commonalities, such as clean, cold, swift 
mountain streams with suitable substrate that provide the habitats for 
invertebrate species used by dippers. In that respect, the Black Hills 
are similar to other western mountain ecosystems that also support 
American dippers.
    In addition, the petition claims that Black Hills streams have 
features that make them ecologically unique. Streams throughout the 
Rocky Mountains vary in many features, including elevation, gradient, 
substrate, parent geological material, and riparian vegetation, such 
that virtually every stream could be considered ``unique.'' Information 
readily available in our files (Kingery 1996) indicates that the key 
features of Black Hills streams used by dippers--cold temperatures, 
good water quality, suitable substrate, and swift flow--are the same 
key features of dipper-utilized streams elsewhere throughout the Rocky 
Mountains. Accordingly, we do not believe the petition presents 
substantial information that the clean, cold, swift streams of the 
Black Hills occupied by dippers are an ecological setting that is 
unusual or unique for this subspecies.
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of taxon.
    The petition claims that the Black Hills dipper population is at 
the eastern edge of its global distribution and its loss would result 
in a significant gap in the range of the dipper. Information readily 
available in our files (Kingery 1996, NatureServe.org 2007) states that 
the American dipper's breeding range extends from western Alaska 
eastward across north-central Alaska; southward along the Pacific 
Coast, and throughout the Rocky Mountains into New Mexico. The 
subspecies is absent from the Great Basin area except for scattered 
populations. The subspecies' range includes mountain streams in an area 
that is approximately 5,000 km (3,107 mi) from north to south and 
approximately 1,800 km (1,118 mi) from west to east at its widest 
point. Within that range, there are thousands of suitable streams and 
tens of thousands of kilometers of occupied streams. The Black Hills 
dipper population, which occupies two streams that represent less than 
80 km (50 mi) of occupied stream habitat, is a small population 
relative to the entire range. Populations of dippers exist throughout 
suitable streams in the Rocky Mountains. The Black Hills dipper 
population is small, and there is no information in the petition or 
readily available in our files to suggest that it makes a significant 
contribution to the taxa. The dipper-occupied streams in the Black 
Hills are on the eastern edge of the dipper's overall range in the

[[Page 55180]]

United States; however, mountain streams in the southern parts of the 
subspecies' range (the i.e. front ranges of Colorado and, Mexico) are 
as far or farther east than the Black Hills.
    We find that the petition does not present substantial information 
that loss of the population segment would result in a significant gap 
in the range of the taxon because it did not provide substantial 
information that the population in the Black Hills is significant to 
the taxa as a whole.
    (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 historical range.
    The petition does not address this consideration. As stated above 
under ``Distribution and Abundance,'' the American dipper survives 
naturally throughout much of western North America. As such, this 
consideration is not applicable to the Black Hills population of the 
American dipper.
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the subspecies in its genetic 
characteristics.
    The petition does not address this consideration. We are aware that 
a genetic analysis was conducted to determine whether the Black Hills 
population of the American dipper is genetically distinct from other 
American dipper populations in North America (Anderson et al. 2007). 
The research analyzed samples from six populations (Black Hills, South 
Dakota; Big Horn Mountains, Wyoming; and four locations in west-central 
Montana and east-central Idaho). Information from this research 
suggests that genetic differences could exist among the dipper 
populations studied. However, the study did not address the 
significance of the Black Hills population of American dipper to the 
taxon as a whole. The results of the study do not lead us to believe 
there are significant genetic differences to meet the criteria in our 
DPS policy for significance based on genetics.
    The information as provided in the petition does not meet the four 
considerations for significance. Only the first two considerations are 
actually addressed in the petition and do not present substantial 
information in favor of significance. Little information is available 
in our files to support the third and fourth considerations, and no 
information was presented in the petition with respect to those 
criteria.
Conservation Status
    We did not need to evaluate whether the information contained in 
the petition regarding the conservation status in relation to the Act's 
standards for listing was substantial, because the petition does not 
present substantial information that the American dipper in the Black 
Hills of South Dakota is a DPS and, therefore, a listable entity under 
the Act.

Finding

    We have reviewed the information presented in the petition and have 
evaluated that information in relation to information readily available 
in our files. On the basis of our review, we find that the petition 
does not present substantial scientific or commercial information to 
indicate that listing the American dipper in the Black Hills of South 
Dakota may be warranted. This finding is based on the lack of 
substantial scientific evidence to indicate that the American dipper in 
the Black Hills of South Dakota may meet the elements of being a valid 
DPS and, therefore, a listable entity under the Act. Although the 
population appears to meet the criteria for being discrete, neither the 
information in the petition nor the information readily available in 
our files suggests that the Black Hills dipper population may be 
significant in relation to the remainder of the taxon. Therefore, we 
conclude that the American dipper in the Black Hills of South Dakota 
does not satisfy the elements of being a DPS under our 1996 policy and, 
therefore, is not a listable entity under section 3(16) of the Act. 
Because the petition does not present substantial information that the 
American dipper in the Black Hills of South Dakota is a DPS, we did not 
evaluate whether the information contained in the petition regarding 
the conservation status was substantial.
    Although we will not commence a status review in response to this 
petition, we will continue to monitor the American dipper's population 
status and trends, potential threats, and ongoing management actions 
that might be important with regard to the conservation of the species 
in the Black Hills of South Dakota. We encourage interested parties to 
continue to gather data that will assist with these conservation 
efforts. New information should be submitted to the Field Supervisor, 
South Dakota Ecological Services Office (see ADDRESSES).
    The petitioners also request that critical habitat be designated 
for the American dipper in the Black Hills of South Dakota. Because the 
petition does not present substantial information that the American 
dipper in the Black Hills of South Dakota may be a DPS, we are not 
required to address the designation of critical habitat, and therefore, 
will not be doing so.
    If you wish to provide information regarding the American dipper in 
the Black Hills, you may submit your information or materials to the 
Field Supervisor of the South Dakota Ecological Services Office (see 
ADDRESSES) at any time.

References Cited

    A complete list of all references is available upon request from 
the Field Supervisor (see ADDRESSES).

Author

    The primary authors of this document are staff members at the South 
Dakota Ecological Services Office (see ADDRESSES).

Authority

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

    Dated: October 9, 2009
Daniel M. Ashe
Acting Director, U.S. Fish and Wildlife Service
[FR Doc. E9-25524 Filed 10-26-09; 8:45 am]
BILLING CODE 4310-55-S