[Federal Register: January 30, 2004 (Volume 69, Number 20)]
[Notices]
[Page 4491-4494]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ja04-27]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 040114019-4019-01; I.D. 121903C]
Endangered and Threatened Wildlife and Plants; 90-Day Finding for
a Petition to List Winter Flounder and Cunner as Threatened or
Endangered
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Notice of petition finding.
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SUMMARY: NMFS has received a petition to add winter flounder
(Pseudopleuronectes americanus) and cunner (Tautogolabrus adspersus)
from western Long Island Sound to the list of threatened and endangered
wildlife under the Endangered Species Act (ESA) of 1973, as amended.
NMFS has determined that the petition does not present substantial
scientific or commercial information indicating that the petitioned
action may be warranted at this time.
DATES: This finding becomes effective on March 1, 2004.
ADDRESSES: Comments or questions concerning this petition finding
should be sent to Mary Colligan, NMFS, Protected Resources Division,
One Blackburn Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Kim Damon-Randall, NMFS Northeast
Region, 978-281-9328 ext. 6535, or Marta Nammack, NMFS Office of
Protected Resources, 301-713-1401, ext. 180.
SUPPLEMENTARY INFORMATION:
Background and Analysis of Petition
Under Section 4(b)(3)(A) of the ESA, to the maximum extent
practicable, within 90 days after receiving a petition to list a
species under the ESA, the Secretary of Commerce (Secretary) must make
a finding whether the petition presents substantial scientific or
commercial information indicating that the petitioned action may be
warranted. This finding must be promptly published in the Federal
Register. In determining whether a petition contains substantial
information, NMFS takes into account information submitted with and
referenced in the petition and all other information readily available
in NMFS' files. NMFS' ESA implementing regulations at 50 CFR
424.14(b)(1) define ``substantial information'' as the amount of
information that would lead a reasonable person to believe that the
measure proposed in the petition may be warranted. If the petition is
found to present such information, the Secretary must conduct a status
review of the involved species and make a determination whether the
petitioned action is warranted within 12 months of receipt of the
petition. In making a finding on a petition to list a species, the
Secretary must consider whether such a petition (i) clearly indicates
the administrative measure recommended and gives the scientific and any
common name of the species involved; (ii) contains detailed narrative
justification for the recommended measure, describing, based on
available information, past and present numbers and distribution of the
species involved and any threats faced by the species;
[[Page 4492]]
(iii) provides information regarding the status of the species over all
or a significant portion of its range; and (iv) is accompanied by the
appropriate supporting documentation in the form of bibliographic
references, reprints of pertinent publications, copies of reports or
letters from authorities, and maps (50 CFR 424.14(b)(2)).
On May 27, 2003, the Assistant Administrator received a petition
dated May 15, 2003, from Arthur Glowka to list the western Long Island
Sound populations of winter flounder and cunner as endangered or
threatened under the ESA. The information contained in the petition
focuses on the results of the Environmental Protection Agency's (EPA)
efforts to restore water quality in the Sound. It is the petitioner's
contention that EPA's efforts to reduce nutrient loading through the
implementation of Total Maximum Daily Loads (TMDL) for various
pollutants has starved the plankton in the Sound, thereby affecting the
entire food web and resulting in declines in the number, size, and
robustness of many sport fish.
Under the ESA, a listing determination can address a species,
subspecies, or distinct population segment (DPS) of a species (16
U.S.C. 1532(15)). A DPS is, in short, a vertebrate population that is
discrete in relation to the remainder of the species to which it
belongs and significant to the species to which it belongs (61 FR 4722;
February 7, 1996). The petitioner requested listing both winter
flounder and cunner from western Long Island Sound only. The petitioner
states, ``we feel that the population of winter flounder and cunner in
western Long Island Sound have decreased to such low numbers that they
may never recover and are good candidates for endangered/threatened
status.'' The information contained in the petition focuses on impacts
to these species that occur in the western portion of the Sound. As
such, NMFS first attempted to identify the boundary or boundaries of
the population that includes the fish from western Long Island Sound
and assess whether available information indicated that the population
may warrant listing under the ESA.
NMFS evaluated whether the information provided or cited in the
petition met the ESA's standard for ``substantial information.'' We
reviewed information that is readily available to NMFS scientists and
consulted fisheries experts from the state of Connecticut to determine
whether the petitioned action may be warranted and if available
information supports the identification of DPSs for these species in
western Long Island Sound.
Cunner
Cunner are widespread along the Atlantic coast and offshore banks
of North America, from the eastern coast of Northern Newfoundland,
southward in abundance to New Jersey, and as far south as the mouth of
the Chesapeake Bay (Collette and Klein-MacPhee 2002). While the
petitioner presents some anecdotal evidence which suggests that there
may have been a decline in the number of cunner in Long Island Sound,
there is not sufficient scientific or commercial information available
to support the petition. There is little to no information available
about the population structure and genetics of the species. As such,
NMFS finds that the petition does not present substantial scientific or
commercial information indicating that listing of cunner in western
Long Island Sound may be warranted.
Winter Flounder
Winter flounder are managed federally as three separate stocks the
Gulf of Maine, southern New England/Middle Atlantic, and Georges Bank.
The petitioner defines western Long Island Sound as ``a line drawn
north to south from Norwalk, CT to Eaton's Neck, Long Island, NY and
the waters which lie to the west to the Throgs Neck Bridge in New York
City.'' Winter flounder from this area are currently included in the
southern New England/Middle Atlantic stock.
Genetic, morphometric, and life history information support these
broad-scale divisions. Dr. Isaac Wirgin from the Nelson Institute of
Environmental Medicine, New York University School of Medicine, used
microsatellite analysis of nuclear DNA in an attempt to verify that
these stock divisions were appropriate (Wirgin 2003). According to
Wirgin (2003), the overall results showed that stocks south of Cape Cod
were usually genetically distinct from the stock at Georges Bank. Two
of the three areas sampled north of Cape Cod exhibited significant
genetic differences from fish sampled from Georges Bank. Therefore,
preliminary evidence suggests genetic discreteness for fish from the
Gulf of Maine, Georges Bank, and Southern New England/Middle Atlantic
regions. Also, according to Collette and Klein-MacPhee (2002), winter
flounder may be separated into different local races based on varying
characteristics such as fin ray counts and maximum size. Fish from
Georges Bank have been documented to have a greater number of dorsal
and anal fin rays, larger maximum sizes, different coloration, and
different spawning seasons as fish from other parts of this species'
range. The best available information supports the broad scale stock
divisions currently employed by Federal fishery managers.
Available data also indicate the possibility of smaller divisions
within the New England/Middle Atlantic stock. Most, but not all,
collections that were taken south of Cape Cod were genetically distinct
from those sampled in nearby areas to the south and north (Wirgin
2003). According to Dr. Wirgin (2003), collections from Peconic Bay, NY
were significantly different from samples taken in Mt. Hope Bay, RI,
and Jamaica Bay, NY. Highly significant genetic differences were also
found among many, but not all, estuaries south of Cape Cod. In many
cases, significant differences were found between geographically
adjacent collections.
However, no significant differences were found among the three
estuaries sampled in Long Island Sound the Connecticut River, New Haven
Harbor, and Manhasset Bay. Samples from the collection from Mt. Hope
Bay, Rhode Island (the nearest sampling site to the north) were
significantly different from those samples from the Connecticut River.
According to Dr. Wirgin, ``this suggests that reproductive isolation
among estuaries in western Long Island Sound (west of the Connecticut)
may be weak and that young life stages may mix or that homing fidelity
in the area is not great.'' This information is preliminary and,
according to Dr. Wirgin, more areas should be sampled and larger sample
sizes should be taken before a definitive conclusion regarding the
genetic distinctness of fish from western Long Island Sound can be
proven. Also, in order to determine if most individual estuaries are
genetically distinct or if fish in estuaries in different geographic
regions are separate genetic units, it is necessary to sample more
immediately contiguous estuaries (Wirgin 2003).
The petition asserts that the winter flounder populations in
western Long Island Sound should be listed as either threatened or
endangered. By specifying the populations in western Long Island Sound,
the petitioner attempts to distinguish between fish from the western
portion of the Sound and the remainder of Long Island Sound, which is
all part of the southern New England/Middle Atlantic stock. However,
current scientific data do not suggest that fish from the western
portion of the Sound are discrete from fish from the remainder of the
Sound because, as discussed above, the samples taken near the
Connecticut River were genetically
[[Page 4493]]
similar to those from areas farther west in the Sound. Also, current
information is insufficient to conclude whether fish from Long Island
Sound as a whole represent a discrete population and, therefore, should
be considered separate from fish from the remainder of the Southern New
England/Middle Atlantic stock. As such, we will consider the Southern
New England/Middle Atlantic stock to be a separate stock for the
purposes of this petition. Information on the status of the Southern
New England/Middle Atlantic stock will be considered to determine
whether it should be listed as threatened or endangered under the ESA.
If the available information were to indicate that the status of this
stock may be threatened or endangered, NOAA Fisheries would need to do
a thorough analysis in the status review to show that this stock meets
the criteria for a DPS because under the ESA, only species, subspecies,
and DPSs of vertebrate species can be listed.
Southern New England/Middle Atlantic Population
To assess whether there is sufficient information to indicate that
listing this stock may be warranted, NMFS will consider available
information on threats and status of winter flounder from the New
England/Middle Atlantic region.
The petitioner asserts that EPA's program to reduce nutrient
loading to the Sound has resulted in significant reductions in primary
production resulting in declines in abundance and size of once numerous
sport fish, including winter flounder and cunner. Available information
does not indicate that the New England/Middle Atlantic stock of cunner
and winter flounder are limited by primary production. In fact the
EPA's program has most likely benefited the species. According to the
EPA, total nitrogen loads from point sources to the waters of the Sound
have decreased significantly over the last ten years as sewage
treatment plants (STPs) have implemented more stringent controls. In
the summer, hypoxia has had a significant adverse impact on the aquatic
habitat and residents of the Sound. Hypoxia is generally most severe in
bottom waters. Winter flounder are demersal and as such, they may
encounter areas with depleted oxygen concentrations. A reduction in
hypoxia would result in an increase in the amount of habitat available
for this and other demersal species.
EPA has indicated that although there has been a reduction in the
areal extent and duration of hypoxic events since the late 1980s in
Long Island Sound, summer hypoxia still represents a significant
impairment to the water quality of the Sound and still continues to
adversely affect the living marine resources present (EPA 2002). As
such, the states of Connecticut and New York have completed and the EPA
has approved a TMDL plan for nitrogen. It is assumed that this program
will result in a reduction in anthropogenic inputs of nitrogen to the
Sound (EPA 2002).
The Magnuson-Stevens Fishery Conservation and Management Act
(MSFCMA), as amended by the Sustainable Fisheries Act in 1996, requires
that the regional fishery management councils describe and identify
essential fish habitat (EFH), identify actions to conserve and enhance
that EFH, and minimize the adverse effects of fishing on EFH to the
extent practicable. EFH has been defined by Congress as ``those waters
and substrate necessary to fish for spawning, breeding, feeding or
growth to maturity.'' EFH has been identified for all life stages of
winter flounder in Long Island Sound and many other bays and estuaries
located in the Southern New England/Middle Atlantic region. As such,
actions that affect the habitat in these areas are subject to EFH
consultation. The available information suggests that the regulatory
mechanisms to conserve existing habitat and restore areas within this
region are sufficient to protect this species.
The petitioner asserts that predation has not had a significant
role in the decline in winter flounder in western Long Island Sound.
Available information and that contained in the petition is not
sufficient to conclude that an increase in predation has resulted in
the decline in winter flounder abundance.
According to the Connecticut Department of Environmental Protection
(CT DEP), the new winter flounder index for the spring obtained from
the 2003 Long Island Sound Trawl Survey is 21.12 fish/tow which is down
from 25.5 fish/tow in 2002. However, the geometric mean increased from
6.31 kg/ tow in 2002 to 6.56 kg/tow in 2003 (Pers. Comm. Kurt
Gottschall, CT DEP 2003). This indicates that the average size of
winter flounder in Long Island may be increasing.
According to the information in the petition, winter flounder
historically were the basis of a significant spring and fall
recreational fishery. However, currently, there are no spring or fall
winter flounder fishing tournaments due to the decline in abundance and
size of fish caught. The 2002 stock assessment for winter flounder
states that the Southern New England/Mid-Atlantic winter flounder stock
complex is overfished and overfishing is occurring. According to the
2002 stock assessment for winter flounder, ``spawning stock biomass
declined substantially from 13,000-14,000 metric tons (mt) during the
early 1980s to only 2,700 mt during 1994-1996, but has increased since
the mid 1990s to about 7,600 mt in 2001 due to reduced fishing
mortality rates since 1997. The arithmetic average recruitment from
1981 to 2001 is 23.9 million age-1 fish, with a median of 18.9 million
fish. Recent recruitment to the stock has been below average since
1989. The 2001 year class, at only 5.6 million fish, is the smallest in
the 22-year time series.'' Therefore, while recruitment may be
decreasing, the spawning stock biomass of the New England/Middle
Atlantic stock of winter flounder seems to be increasing.
Petition Finding
After reviewing the information contained in the petition, as well
as information readily available to NMFS' scientists, NMFS has
determined that the petition does not present substantial scientific or
commercial information indicating that the petitioned action may be
warranted. For cunner, sufficient scientific or commercial information
to support conducting a status review of cunner in western Long Island
Sound is not currently available. For winter flounder, recent studies
on nuclear DNA are not sufficient to support the contention that winter
flounder from western Long Island Sound are a DPS, or that winter
flounder from Long Island Sound are a DPS. While the petition states
that winter flounder catches have declined in western Long Island Sound
to such an extent that the population will not recover, NMFS does not
believe that the information presented is substantial enough to warrant
a status review at this time. This finding is supported by information
contained within the 2002 stock assessment for winter flounder, which
has shown an increase in spawning stock biomass of the Southern New
England/Mid-Atlantic stock as a result of reduced fishing mortality
rates. If new information becomes available to suggest that cunner and
winter flounder may in fact warrant listing under the ESA, NMFS will
reconsider conducting species status reviews.
References
Atlantic States Marine Fisheries Commission. 2003. Public
information document for Amendment I to the Interstate Fishery
Management Plan for Inshore Stocks of Winter Flounder.
[[Page 4494]]
Prepared by Lydia Munger, Fishery Managment Plan Coordinator. 1444 Eye
Street, NW, 6th Floor, Washington, DC 20005.
Collette, B. B. and G. Klein-MacPhee, editors. 2002. Bigelow and
Schroeder's Fishes of the Gulf of Maine. Smithsonian Institution Press,
Washington DC.
Connecticut Department of Environmental Protection. 2002. A study
of marine recreational fisheries in Connecticut. Federal Aid in Sport
Fish Restoration. F-54-R-21 Annual Performance Report. March 1, 2001-
February 28, 2002.
Connecticut Department of Environmental Protection. 2003. Marine
Finfish Survey. Draft report in prep.
Environmental Protection Agency. 2002. The 2001 CCMP Implementation
Tracking Report for January - December 2001. The Comprehensive
Conservation and Management Plan - Long Island Sound Study.
Gottschall, K. 2003. Personal Communication. Connecticut Department
of Environmental Protection, Marine Fisheries Division. Old Lyme, CT
06371.
Meise, C., J.S. Collie, J. Widman, P. Howell. 1999. Growth and
mortality of juvenile winter flounder in two New England estuaries.
Estuaries 22(2A):297-303.
Northeast Fisheries Science Center. 2003. Report of the 36th
Northeast Regional Stock Assessment Workshop (36th SAW): Stock
Assessment Review Committee (SARC)
Consensus Summary of Assessments. National Marine Fisheries Serv.,
Woods Hole Lab., 166 Water St., Woods Hole, MA 02543. Pp. 139-163.
Pereira, J.J., R. Goldberg, J.J. Ziskowski, P.L. Berrien, W.W.
Morse, and D.L. Johnson. Essential fish habitat source document: winter
flounder, Pseudopleuronectes americanus, life history and habitat
characteristics. NOAA Technical Memorandum NMFS-NE-138. September 1999.
Wirgin, I. 2003. Stock identification and mixed stock analyses of
winter flounder (Pleuronectes americanus). NYSG Completion Report.
Submitted March 17, 2003.
Authority: 16 U.S.C. 1531 et seq..
Dated: January 22, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 04-1978 Filed 1-29-04; 8:45 am]
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