Feds Re-open Comment Period for Uplisting Delta Smelt

Federal Agency Re-opens Comment Period for Uplisting Delta Smelt from "Threatened" to "Endangered"

by Dan Bacher

If you want to comment on the uplisting of Delta smelt under the federal Endangered Species Act (ESA) from "threatened" to "endangered," you have 3 more months to do so, due to a glitch on the agency's website.

Due to a technical error, the U.S. Fish and Wildlife Service (Service) on December 9 announced the opening of an additional 60 days for submittal of "relevant information" about the Delta smelt, as part of a process to consider changing its listing category from “threatened” to “endangered."

The Delta smelt, a small translucent fish that lives only in the California Delta Estuary, has declined to record population levels in recent years. It is one of four pelagic (open water) species populations, including longfin smelt, threadfin shad, and juvenile striped bass, that have crashed due to increases in Delta water exports, increases in toxic chemicals in the water and the spread of invasive species.

The Delta smelt is considered by scientists to be an indicator of the health of the Sacramento-San Joaquin River Delta, the largest and most significant estuary on the West Coast of the Americas. The fish is the proverbial "canary in the coal mine" of the estuary.

"The additional comment period, which closes Feb. 9, 2009, is due to an unintentional error by the federal website that receives comments," according to a statement from Al Donner and Steve Martarano of the Service. "The Service opened a public comment period on July 10, 2008, asking for information to be submitted on the http://www.regulations.gov website. But the website was unable to receive electronic information during that comment period. To assure that all interested parties have had an opportunity to submit comments, the Service now has re-opened the comment period."

Parties who submitted comments can visit the website http://www.regulations.gov to verify that their comments were received.

The activity was triggered by a 90-day finding that a petition to upgrade the smelt’s status contains substantial information that current threats may be greater than in 1993 when the smelt received protection as a threatened species under the federal Endangered Species Act (ESA). The 90-day finding is the first step in the process of providing or changing protection for a species under ESA, according to the Service.

"In its July 10, 2008 90-day review, the Service concluded that threats may be of higher magnitude or imminence than was thought at the time of listing," said Donner and Martarano. "The Service cited substantial information about habitat loss and water diversions, inadequate regulatory mechanisms and low population size as factors in the decision to proceed with the next step. Delta surveys show a substantial decline in smelt abundance from 2002 through 2007, indicating that the threats may be of higher magnitude or imminence than was thought at the time of listing."

“Endangered” is the term in the ESA for a species which is in danger of extinction, while “threatened” means a species that is likely to become endangered within the foreseeable future.

"A change in listing category for the delta smelt would not by itself trigger any immediate actions on behalf of the species," Donner and Martarano noted. "While both categories protect species from unauthorized destruction (take), endangered status also prohibits issuing permits for incidental take that can be allowed for threatened species in some situations."

The public is encouraged to submit any scientific or commercial information that will help it conduct a complete evaluation and determine the correct classification of the species. Information may be submitted in two ways, either through http://www.regulations.gov or by mail to: Public Comments Processing, Attn: FWS-R8-2008-0067; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, suite 222; Arlington, VA 22203.

In an entirely separate process, under a federal court order the Service also is developing a new biological opinion (BO), in effect a permit, for "protective actions to help reduce the destruction of delta smelt at two major water export pumps in the South Delta," the Service noted. The BO must be completed by Dec. 15.

Environmental, fishing and tribal groups sued the Bush administration for issuing a controversial "no jeopardy" biological opinion resulting from political manipulation by federal officials. Agency officials ordered the re-write of the opinion issued by federal fishery biologists, who concluded that the fish deserved a "jeopardy" ruling because the fish was in imminent threat of extinction.