Endangered and Threatened Wildlife and Plants; Endangered Species Status for the San Francisco Bay-Delta Distinct Population Segment of the Longfin Smelt

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 17</CFR> <DEPDOC>[Docket No. FWS-R8-ES-2022-0082; FXES1111090FEDR-245-FF09E21000]</DEPDOC> <RIN>RIN 1018-BG07</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Endangered Species Status for the San Francisco Bay-Delta Distinct Population Segment of the Longfin Smelt</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Fish and Wildlife Service, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973, as amended (Act), for the San Francisco Bay-Delta distinct population segment (DPS) of longfin smelt ( <E T="03">Spirinchus thaleichthys</E> ), a fish species of the Pacific Coast. This rule extends the protections of the Act to this DPS and adds it to the List of Endangered and Threatened Wildlife. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective August 29, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> This final rule is available on the internet at <E T="03">https://www.regulations.gov.</E> Comments and materials we received on the proposed rule are available for public inspection at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-R8-ES-2022-0082. <E T="03">Availability of supporting materials:</E> Supporting materials we used in preparing this rule, such as the species status assessment report, are available at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-R8-ES-2022-0082. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Donald Ratcliff, Field Supervisor, U.S. Fish and Wildlife Service, San Francisco Bay-Delta Fish and Wildlife Office, 650 Capitol Mall, Suite 8-300, Sacramento, CA 95814; telephone 916-930-5603. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Executive Summary</HD> <E T="03">Why we need to publish a rule.</E> Under the Act, a species (including a distinct population segment of a species) warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the entity promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the San Francisco Bay-Delta distinct population segment (DPS) of longfin smelt (hereafter Bay-Delta longfin smelt) meets the definition of an endangered species; therefore, we are listing it as such. Listing a species as an endangered species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 <E T="03">et seq.</E> ). <E T="03">What this document does.</E> This rule lists the Bay-Delta longfin smelt as an endangered species under the Endangered Species Act and adds the Bay-Delta longfin smelt to the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations at 50 CFR 17.11(h). <E T="03">The basis for our action.</E> Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Bay-Delta longfin smelt is endangered due to the following threats: altered hydrology (Factor A; largely attributable to water management, including water diversions and channel modifications), nonnative species (Factors C and E), and the effects of climate change (Factor E; by exacerbating drought, decreasing river and stream flows, and increasing air and water temperatures). Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary), to the maximum extent prudent and determinable, to designate critical habitat concurrent with listing. We will publish a proposed critical habitat rule in a future edition of the <E T="04">Federal Register</E> . <HD SOURCE="HD1">Previous Federal Actions</HD> On October 7, 2022, the proposed rule to list the Bay-Delta longfin smelt published in the <E T="04">Federal Register</E> (87 FR 60957). On February 27, 2023, we published a document in the <E T="04">Federal Register</E> (88 FR 12304) that announced a public hearing and reopened the comment period for the proposed rule. Please see the proposed listing rule for a detailed description of previous Federal actions concerning this species. On December 22, 2023, San Francisco Baykeeper (Baykeeper), a nonprofit corporation, filed a complaint in the U.S. District Court for the Northern District of California ( <E T="03">San Francisco Baykeeper</E> v. <E T="03">United States Fish and Wildlife Service, et al.</E> (Case 4:23-cv-06601-LB)) challenging the Service's failure to complete its statutory obligations to make a final listing determination for the Bay-Delta longfin smelt. On April 5, 2024, the court issued an order requiring us to submit the final listing determination to the Office of the Federal Register by July 22, 2024. This document satisfies our requirement for completion of our final listing rule. <HD SOURCE="HD1">Peer Review</HD> A species status assessment (SSA) team prepared an SSA report for the Bay-Delta longfin smelt. The SSA team was composed of Service biologists, in consultation with other species experts including those from the California Department of Fish and Wildlife. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the Bay-Delta longfin smelt, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the <E T="04">Federal Register</E> on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the draft Bay-Delta longfin smelt SSA report (Service 2021, entire). As discussed in the proposed rule, we sent the 2021 SSA report to five independent peer reviewers and received three responses. The peer reviews can be found at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-R8-ES-2022-0082 under supporting documents. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into a revised draft SSA report (Service 2022, entire) and made this 2022 version available to the public on <E T="03">https://www.regulations.gov</E> at Docket No. FWS-R8-ES-2022-0082 during the open comment periods. We have since incorporated any additional edits as appropriate based on public comments received during the public comment periods into the current SSA report, which is the foundation for this final rule (Service 2024, entire). A summary of the peer review comments and our responses can be found in the Summary of Comments and Recommendations, below. <HD SOURCE="HD1">Summary of Changes From the Proposed Rule</HD> Since the October 7, 2022, proposed rule and February 27, 2023, document reopening the comment period and announcing a public hearing were published, we received comments from the public on the proposed listing rule and 2022 SSA report. After the second comment period closed on March 29, 2023, we also received additional comments on August 16, October 23, and December 12, 2023, from representatives of the Coalition for a Sustainable Delta. The Coalition also provided comments during the open comment periods for the proposed rule to <E T="03">https://www.regulations.gov</E> at Docket No. FWS-R8-ES-2022-0082 (see documents FWS-R8-ES-2022-0082-0009 and -0024). After reviewing all the information we received, we updated and revised the 2022 SSA report to incorporate any grammatical edits, clarifications, and formatting changes. We also revised the count-based population viability analysis (see Service 2024, appendix B) based on information received from comments on the proposed rule and peer review of the information associated with publication of the analysis (Tobias et al. 2023, entire) in a scientific journal. The revisions to the analysis were associated with our methodology of estimating population growth rates and assisted in accounting for observation error in our estimates. Additionally, we also compared density-dependent model formulations to confirm sufficiency of our density-independent model. The changes made to the SSA report and appendix B did not significantly change our determination of status of the Bay-Delta longfin smelt in this final rule. Additionally, in the October 7, 2022, proposed listing rule, we determined the designation of critical habitat for the DPS to be not determinable due to a lack of necessary information to complete our analysis. We are currently in the review process of determining critical habitat for the DPS, and a proposed rule will be forthcoming (see Critical Hab ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 136k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━