Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Delaware River Atlantic Sturgeon (Acipenser oxyrinchus oxyrinchus) Population as an Endangered Distinct Population Segment Under the Endangered Species Act

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Parts 223 and 224</CFR> <DEPDOC>[Docket No. 240522-0144; RTID 0648-XR132]</DEPDOC> <SUBJECT>Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List the Delaware River Atlantic Sturgeon (Acipenser oxyrinchus oxyrinchus) Population as an Endangered Distinct Population Segment Under the Endangered Species Act</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Notification of 90-day finding. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, NMFS, announce our 90-day finding on a petition to list the Delaware River population of Atlantic sturgeon as an endangered distinct population segment (DPS) of Atlantic sturgeon under the Endangered Species Act (ESA) and to designate critical habitat for the DPS. We find that the petition does not present substantial scientific or commercial information indicating that the petitioned actions may be warranted. Therefore, we are denying this petition. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This finding was made on May 31, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Copies of the petition and related materials are available from the NMFS website at <E T="03">https://www.fisheries.noaa.gov/national/endangered-species-conservation/negative-90-day-findings.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Lynn Lankshear, NMFS Greater Atlantic Regional Fisheries Office, Protected Resources Division, (978) 282-8473, <E T="03">lynn.lankshear@noaa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> A “species” is defined in section 3 of the ESA to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (16 U.S.C. 1532(16)). On July 19, 2023, we received a petition from the Delaware Riverkeeper Network (DRN) to list the Delaware River Atlantic sturgeon ( <E T="03">Acipenser oxyrinchus oxyrinchus</E> ) population as a DPS, to list that DPS as endangered under the ESA, and to designate critical habitat for that DPS concurrent with the listing. The Delaware River Atlantic sturgeon population is currently protected under the ESA as part of the New York Bight DPS of Atlantic sturgeon, and 137 kilometers (85 miles) of the lower Delaware River are included as part of the designated critical habitat for the DPS. We listed the New York Bight DPS as endangered after two separate status reviews. The first status review, which was completed in 1998, was conducted by NMFS and the U.S. Fish and Wildlife Service (collectively the “Services”) in response to a petition to list Atlantic sturgeon in the United States under the ESA. We concluded that listing Atlantic sturgeon as a subspecies  <SU>1</SU> <FTREF/> was not warranted (63 FR 50187, September 21, 1998). The second status review was completed in 2007. It concluded that there was new information to support listing Atlantic sturgeon in the United States as five DPSs (Atlantic Sturgeon Status Review Team (ASSRT), 2007). <FTNT> <SU>1</SU>  Our finding considered whether listing Atlantic sturgeon in its North American range, including Atlantic Canada, was warranted. 63 FR 50187. </FTNT> On October 6, 2009, NMFS received a petition to list Atlantic sturgeon throughout its range as endangered or, alternatively, to list the five DPSs described in the 2007 status review. We reviewed the available information, including the 2007 Atlantic sturgeon status review report, and determined, in accordance with the Services' joint DPS Policy (61 FR 4722, February 7, 1996), that the U.S. populations of Atlantic sturgeon comprised five DPSs because they met both criteria of the policy— <E T="03">i.e.,</E> that the populations are both “discrete” and “significant” (77 FR 5880, February 6, 2012; 77 FR 5914, February 6, 2012). Evidence to support the existence of discrete Atlantic sturgeon populations included temporal and spatial separation during spawning and the results from genetic analyses. The significance criterion was met because each identified DPS persists in an ecological setting that is unique relative to the taxon as a whole, and the loss of any of the five DPSs would result in a significant gap in the range of the taxon. After reviewing the best available information regarding each DPSs' current status and extinction risk, we listed four DPSs as endangered (including the New York Bight DPS) and one as threatened (77 FR 5880, February 6, 2012; 77 FR 5914, February 6, 2012). The New York Bight DPS is defined in the regulations as all Atlantic sturgeon spawned in the watersheds that drain into coastal waters from Chatham, Massachusetts, to the Delaware-Maryland border on Fenwick Island (50 CFR 224.101). The Delaware River and the Hudson River populations of Atlantic sturgeon were the only known extant populations for the DPS when it was listed. We subsequently identified the areas of the Delaware River and the Hudson River where the physical and biological features essential for successful reproduction and recruitment of the respective Atlantic sturgeon populations are found. We designated these areas as critical habitat for the New York Bight DPS on August 17, 2017 (82 FR 39160). We completed a 5-year review of the New York Bight DPS on February 17, 2022. In that review, we described new information available since the listing, including information that further supports our understanding of when spawning occurs in the Delaware River, the genetic assignment of Delaware River Atlantic sturgeon to the New York Bight DPS and the river-of-origin, and where the Delaware River Atlantic sturgeon occur in the marine environment (NMFS, 2022). We also described new information suggesting a possible spawning population in the Connecticut River for which research is on-going. As summarized in the 5-year review, the information available since the listing continues to support our determination in the 2012 listing rule that the New York Bight DPS is both discrete and significant relative to the taxon as a whole. We found no new information that would change our determinations regarding the application of the DPS Policy, the status of the DPS, or its designated critical habitat (NMFS, 2022). <HD SOURCE="HD1">ESA Statutory, Regulatory, and Policy Provisions and Evaluation Framework</HD> Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 <E T="03">et seq.</E> ), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce shall make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and promptly publish such finding in the <E T="04">Federal Register</E> (16 U.S.C. 1533(b)(3)(A)). If NMFS finds that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned, during which we will conduct a comprehensive review of the best available scientific and commercial data. In such cases, within 12 months of receipt of the petition, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted. Because the finding at the 12-month stage is based on a more thorough review of the best available information, as compared to the narrow scope of review at the 90-day stage, a “positive 90-day finding” does not prejudge the outcome of the status review. Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any DPS that interbreeds when mature (16 U.S.C. 1532(16)). The Services joint DPS Policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (61 FR 4722, February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following section 4(a)(1) factors: (1) The present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms to address identified threats; (5) or any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)). ESA-implementing regulations issued jointly by the Services (50 CFR 424.14(h)(1)(i)) define “substantial scientific or commercial information” in the context of reviewing a petition to list, delist, or reclassify a species as credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered substantial information. In reaching the initial (90-day) finding on the petition, ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 45k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━