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Proposed Rule

Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Yellow-Billed Loon as Threatened or Endangered

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Information about this document as published in the Federal Register.

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AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of 90-day petition finding and initiation of status review.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the yellow-billed loon (Gavia adamsii) as threatened or endangered, under the Endangered Species Act of 1973, as amended. We find that the petition presents substantial scientific information indicating that the petitioned action may be warranted. As a result of this action, the Service also announces the commencement of a thorough status review to determine if listing the yellow-billed loon may be warranted. We ask the public to submit to us any pertinent information concerning the status of or threats to this species. We will also be working with other agencies to gain additional data where gaps in our current information on this species exist. In addition, together with the Bureau of Land Management, the Alaska Departments of Fish and Game and Natural Resources, the U.S. Geological Survey, and the National Park Service, we have developed a Conservation Agreement for the yellow-billed loon, which addresses a subset of threats to the loon in a subset of the species' range. We invite comments on management strategies and research needs that should be considered in annual reviews of the Conservation Agreement.

DATES:

The finding announced in this document was made on June 6, 2007. To be considered in the 12-month finding for this petition comments and information must be submitted to us by August 6, 2007.

ADDRESSES:

Data, information, and comments concerning this finding may be submitted by any one of the following methods:

1. You may mail or hand-deliver written comments and information to: Yellow-billed Loon Comments, Endangered Species Branch, Fairbanks Fish and Wildlife Field Office, U.S. Fish and Wildlife Service, 101-12th Ave., Room 110, Fairbanks, AK 99701.

2. You may fax your comments to (907) 456-0208. Please clearly indicate that you are submitting comments for the Yellow-billed Loon finding on the cover sheet.

3. You may send your comments by electronic mail (e-mail) to YBLoon@fws.gov. Please see the Public Information Solicited section of this document for information on submitting e-mail comments.

4. You may submit comments via the Internet at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

The petition, findings, and supporting information are available for public inspection, by appointment, during normal business hours, at the Fairbanks Fish and Wildlife Field Office at the address listed above. The Yellow-billed Loon Conservation Agreement, which addresses a subset of threats to the loon in a subset of the species' range, is available at or can be requested from the address listed above.

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FOR FURTHER INFORMATION CONTACT:

Mr. Ted Swem, Fairbanks Fish and Wildlife Field Office (see ADDRESSES) (telephone 907-456-0441; facsimile 907-456-0208).

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SUPPLEMENTARY INFORMATION:

Public Information Solicited

When we make a finding that substantial information is presented to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are particularly seeking the following information on the yellow-billed loon:

(1) Additional information on the life history, ecology, and distribution of the species;

(2) The status of the species and any trend information from the United States, Canada, Europe, and Asia;

(3) Potential threats to the species on its nesting grounds, wintering areas, or migration corridors;

(4) Ongoing management measures that may be important with regard to the conservation of the yellow-billed loon throughout its range;

(5) The extent and nature of the use of the species for subsistence purposes;

(6) The species' tolerance for human interaction and studies documenting flushing distances;

(7) The incidence of mortality as a result of bycatch from fishing on lakes and at sea;

(8) Conservation and management strategies that should be considered for inclusion in annual reviews of the Yellow-billed Loon Conservation Agreement; and

(9) Whether the U.S. breeding population constitutes a distinct population segment.

If you wish to comment, you may submit your comments and materials concerning this finding to the Endangered Species Branch Chief (see ADDRESSES). If you wish to comment by e-mail, please include “Attn: Yellow-billed Loon” in the beginning of your message. Please include your name and return address in your e-mail message (anonymous comments will not be considered). If you do not receive a confirmation from the system that we have received your e-mail message, or in the event that our Internet connection is not functional, please submit your comments in writing using one of the alternate methods described above.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Background

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (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 to indicate 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 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. Start Printed Page 31257

Our standard for substantial 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 information was presented, we are required to promptly commence a review of the status of the species.

In making this finding, we relied on information provided by the petitioners and evaluated that information in accordance with 50 CFR 424.14(b). Our process of coming to a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. A substantial finding should be made when the Service deems that adequate and reliable information has been presented that would lead a reasonable person to believe that the petitioned action may be warranted.

On April 5, 2004, we received a petition from the Center for Biological Diversity (CBD) (Sitka, AK), Natural Resources Defense Council (Washington, DC), Pacific Environment (San Francisco, CA), Trustees for Alaska (Anchorage, AK), Kaira Club (Chukotka, Anadyr, Russia), Kronotsky Nature Preserve (Kamchatka Region, Russia), Taiga Rangers (Khabarovsk Region, Russia), Yuzhno-Sakhalinsk Local Public Fund (Sakhalin Region, Russia), Interregional Public Charitable Organization of Far Eastern Resource Centers (Vladivostok, Russia), Kamchatka Branch of Pacific Institute of Geography (Petropavlovsk-Kamchatsky, Russia), and Kamchatka League of Independent Experts (Petropavlovsk-Kamchatsky, Russia) to list the yellow-billed loon (Gavia adamsii) as endangered or threatened throughout its range, or as a Distinct Population Segment, and to designate critical habitat once listed. The petition summarizes threats to the species based on CBD's review of Fair's (2002) report, prepared for the Natural Resources Defense Council and Trustees for Alaska, on the status and significance of the species in Alaska as well as CBD's review of the scientific literature. The 63-plus page petition describes multiple threats to the yellow-billed loon, including destruction or modification of habitats due to development and pollution, lack of regulatory protection, and other factors such as mortality from hunting and drowning in gill nets. The petition also emphasizes that additional factors, including limited and specific breeding habitats, a small global population, and low reproductive rate, make yellow-billed loon populations more susceptible to the above-mentioned threats and less likely to recover after population declines.

Development of a Conservation Agreement

Yellow-billed loons may benefit greatly from a Conservation Agreement among agencies (the Bureau of Land Management (BLM), the National Park Service, and the Service) with management and conservation responsibilities on public lands that include much of the loon's breeding range in the United States. At present, the Service and the Alaska Department of Fish and Game cooperatively promulgate migratory bird hunting and subsistence regulations, and the U.S. Geological Survey has ongoing yellow-billed loon studies. The BLM and the Service, with other agencies, have developed a Conservation Agreement (Agreement) dated September 30, 2006, for the yellow-billed loon that addresses a subset of threats (including fisheries bycatch, habitat loss from industrial development, and disturbance) for yellow-billed loons breeding in northern and western Alaska. We will be conducting annual review of the Agreement and as such, we welcome suggestions for conservation and management strategies that should be considered. The strategies for conservation in the Agreement include: (1) Implement specific actions to protect yellow-billed loons and their breeding habitats in Alaska from potential impacts of land uses and management activities, including oil and gas exploration and development; (2) inventory and monitor yellow-billed loon breeding populations in Alaska; (3) determine and reduce, if significant, the impact of subsistence activities on yellow-billed loons (including subsistence fisheries and hunting) in Alaska; and (4) conduct biological research on yellow-billed loons, including response to management actions.

Biology and Distribution

The following information regarding the description and natural history of the yellow-billed loon (American Ornithologist's Union (AOU) 2003) has been condensed from these sources: Earnst et al. (2006, 2005), Evers (2004), Mallek et al. (2004), Johnson et al. (1999, 1998, 1997, 1996), Larned et al. (2003), Fair (2002), North (1994), Smith et al. (1994, 1993), Field et al. (1993), and North and Ryan (1989). These and other references are cited for data of particular relevance to this finding.

The yellow-billed loon (Order Gaviiformes, Family Gaviidae) is one of the largest of the five loon species and similar in appearance to the common loon (Gavia immer). Yellow-billed loons are distinguished from common loons by their larger yellow or ivory bill. Adults weigh 4,000 to 6,000 grams (8.8 to 13.2 pounds) and are 774 to 920 millimeters (30 to 37 inches) in length. Presumably, as with common loons, average male body mass and size is greater than female mass and size. Breeding (alternate) plumage of adults of both sexes is black above with white spots on the wings and underside, and white stripes on the neck. Non-breeding (basic) plumage is gray-brown with fewer and less distinct white spots than breeding plumage, with paler undersides and head, and a blue-gray bill. Hatchlings have dark brown and gray down, and juveniles are gray with a paler head. There are no recognized subspecies or geographic variations. Yellow-billed loons are specialized for aquatic foraging and are unable to fly from land, with a streamlined shape and legs near the rear of the body.

Yellow-billed loons nest exclusively in coastal and inland low-lying tundra from 62 to 74° N latitude, in association with permanent, fish-bearing lakes. Populations are thought to be limited primarily by breeding habitat, specifically nesting and brood-rearing lakes (North 1994, p. 16). Lakes that support breeding loons have abundant fish populations; depths greater than 2 meters (m) or 6.5 feet (ft) and water under the ice during winter; large areas (at least 13.4 hectares [ha] or 33 acres [ac]) (North & Ryan 1989, p. 302); often connections to streams that may supply fish; highly convoluted, vegetated, and low-lying shorelines; clear water; and dependable water levels (Earnst et al. 2006, p. 227; North 1994, p. 6). Breeding lakes may be near major rivers, but are usually not connected to them, possibly because fluctuating water levels can flood nests or cause turbidity that compromises foraging success.

Breeding territories (areas defended against conspecifics and other loon species, particularly Pacific loons [Gavia pacifica]), may include one or more lakes or parts of lakes. Territory size, dependent upon lake size and quality, ranged from 13.8 to greater than 100 ha (34 to greater than 247 ac) on the Colville River Delta, AK (North 1986, as cited in North 1994, p. 10). It is thought that loons occupy the same breeding territory throughout their reproductive life; certainly, breeding lakes are “known to be reoccupied over long time Start Printed Page 31258spans” (North 1994, p. 10), most likely by the same monogamous pair (North 1994, p. 10), similar to common loons (Evers 2004, p. 13).

Yellow-billed loons feed on fish and aquatic invertebrates. Marine prey species include sculpins (Leptocottus armatus, Myoxocephalus sp.); tomcod (Microgadus proximus) and rock cod (Sebastodes sp.); invertebrates such as amphipods, isopods, shrimps, hermit crabs (Pagarus sp.), and marine worms (Nereus sp.); and Pacific sand dabs (Citharichthys sordidus). During the breeding season, freshwater prey may include ninespine sticklebacks (Pungitius pungitius), Alaska blackfish (Dallia pectoralis), fourhorn sculpins (M. quadricornus), least cisco (Coregonus sardinella), and freshwater amphipods, isopods, insects, and spiders. Freshwater foraging habitats include lakes, rivers, and the nearshore marine environment for non-breeders; young are fed almost entirely from the brood-rearing lake (North 1994, p. 14).

Nest sites are usually located on islands, hummocks, or peninsulas, along low shorelines, within 1 m (3 ft) of water. The nest location, which may be used in multiple years, usually provides a better view of the surrounding land and water than other available lakeshore locations. Nests are constructed of mud or peat, and are often lined with vegetation. One or two large, smooth, mottled brown eggs are laid in mid-to late June; hatching occurs after 27 to 28 days of incubation by both sexes. Although the actual age at which young are capable of flight is unknown, it is probably similar to common loons (8 to 9, possibly 11, weeks). The young leave the nest soon after hatching, and the family may move between natal and brood-rearing lakes. Both males and females participate in feeding and caring for young. In spite of the occasional replacement of eggs after nest predation, the short Arctic summer makes it impossible to raise more than one brood.

There is no reliable scientific information on lifespan and survivorship, but as large-bodied birds with low clutch size, yellow-billed loons are probably K-selected (long-lived and dependent upon high annual adult survival to maintain populations). Assuming demography similar to common loons (Evers 2004, p. 17-18), individuals on average reach sexual maturity at three years of age, but competition for breeding territories may delay successful reproduction until six or seven years of age.

Reproductive success, although studied rarely and with differing methodologies, is low and highly variable. For example, on the Colville River Delta, the percent of territorial pairs that nested were 76, 79, 42, and 71 in 1983, 1984, 1989, and 1993 respectively (Smith et al. 1994, p. 18; Field et al. 1993, p. 329). Aerial surveys on the Colville River Delta from 1993 to 2003 documented annual variation in number of nests (16 to 26), number of broods (3 to 14), and total number of chicks (3 to 17) from 1993 to 2003 (Johnson 2004; Wildman 2004a; Johnson et al. 1999, p. 48). Specifically, in 2000 and 2001, there were only 3 young among 16 observed nests and 4 young among 20 observed nests, respectively, which is relatively low compared to other years, possibly due to late summer storms, severe spring flooding, or both (Wildman 2004b). In 1995 to 2000 on the Colville River Delta, Earnst (2004a, p. 1) also documented high annual variability in several reproductive parameters, including number of territorial pairs nesting, clutch size, hatch date, proportion of eggs hatching, and proportion of chicks surviving to six weeks of age.

Yellow-billed loons breed in the freshwater treeless tundra of Alaska (sparsely in western Alaska and the foothills of the Brooks Range, more abundantly on the North Slope), in Canada east of the Mackenzie Delta and west of Hudson's Bay, in arctic Russia in the relatively narrow strip of coastal tundra from the Chukchi Peninsula in the east to the Taymyr Peninsula and the areas of the Novaya Zemlya and Pechora Rivers in the west, and rarely in far northern Norway and Finland. Because preferred breeding habitats are patchy and sparsely distributed across the yellow-billed loon's range, breeding birds are found in clumped and concentrated distributions. Based on aerial survey data (1998 to 2001 U.S. Fish and Wildlife Service Alaska Coastal Plain (ACP) and North Slope Eider (NSE) surveys), most of the population in Alaska occurred within 6 concentrations, which together covered only 15 percent of the surveyed area yet contained 84 percent of yellow-billed loon sightings. The largest concentration area was between the Meade and Ikpikpuk Rivers. It covered only 5 percent of the survey area, but had 30 percent of yellow-billed loon sightings. Other notable concentration areas were on the Colville River Delta and west, southwest, and east of Teshukpuk Lake. In Canada, concentration areas include Banks Island; western Victoria Island; the mainland south of the Kent Peninsula, east of Bathhurst Inlet and west of Ellice River; the west side of Boothia Peninsula, and the lake district between Great Slave Lake and Baker Lake, including the Thelon Game Sanctuary (North 1994, p. 3). In Russia, breeding concentrations have been identified east of Chaun Bay on the Chukchi Peninsula (Fair 2002, pp. 17 and 19), and along the Kolyma River Delta (Earnst 2004a, p. 1).

The wintering range of the yellow-billed loon includes nearshore coastal waters from southcentral Alaska south to Puget Sound; from the Pacific coast of Siberia south to the Yellow Sea; and occasionally in northern Europe from Great Britain to Norway. Wintering habitats have less specific characteristics than breeding habitats but are primarily in protected nearshore marine waters. A small proportion of yellow-billed loons breeding in interior North America may winter on large inland freshwater lakes (North 1994, p. 3).

Yellow-billed loon migration routes are thought to be primarily marine, sometimes far offshore. Migration route and timing is possibly influenced by ocean ice conditions, although inland breeders may migrate along chains of inland lakes. In 2002 and 2003, 11 yellow-billed loons along the North Slope of Alaska were outfitted with satellite transmitters. All 11 of these loons migrated to Asia, predominantly along the Russian coastline, and wintered in the Yellow Sea off China, North Korea, Russia, and Japan (near Hokkaido) (Schmutz 2004, p. 1). Most of these yellow-billed loons departed breeding areas in late September, arrived in wintering locations in mid-November, started spring migration in April, and arrived on breeding grounds in the first half of June; these are similar to breeding ground arrival dates reported by North (1994, p. 5). Non-breeders or failed nesters may start fall migration in July; non-breeders and juveniles may forego spring migration altogether and spend the summer in wintering areas. Yellow-billed loons are thought to migrate singly or in pairs, although large groups are occasionally seen at staging (temporary resting or loafing) areas.

The only known comprehensive population estimates of yellow-billed loons are derived from the two Arctic coastal plain waterfowl surveys conducted in Alaska annually in early June (NSE survey) and late June (ACP survey) by the Service's Migratory Bird Management program. The long-term (1986 to 2003) mean estimate of yellow-billed loons on the Arctic coastal plain is 2,919 (95 percent confidence interval = 2,450 to 3,387) (ACP estimate; Mallek et al. 2004, p. 10); a 12-year mean (1992 to 2003) based on both surveys and a Start Printed Page 31259visibility correction factor results in a similar estimate (Earnst et al. 2005, p. 289). A 1-year (1993) estimate of breeding yellow-billed loons on the Seward Peninsula was 680. There is anecdotal information of 50 yellow-billed loons on St. Lawrence Island and approximately the same number in the Selawik wetlands. When these are added to the coastal plain estimates, the estimated total number of yellow-billed loons on Alaska breeding grounds is approximately 3,500 to 4,000. (Not all are breeders; the ACP and NSE surveys include, but do not distinguish between, breeding and non-breeding yellow-billed loons. The 3- to 5-year-old reproductively mature individuals are capable of breeding, yet due to limited availability of suitable breeding territories, only a portion of these individuals may be present and, therefore, visible on the breeding grounds. The 1- to 2-year-old juveniles likely stay at sea and are not counted.) The total Alaska yellow-billed loon population, including those birds not occupying breeding areas during summer, may be between 3,700 to 4,900, assuming yellow-billed loon demography (age-specific survival, productivity, and average age of first breeding) is similar to that of common loons (Evers 2004, p. 16-20).

The Service is unaware of scientifically valid population estimates for other areas. Yellow-billed loons are not summarized in the North American Spring Waterfowl Surveys (U.S. Fish and Wildlife Service 2003, p. 1-53), and Canadian population estimates do not exist (http://www.bsc-eoc.org/​clls-bw1.html, accessed January 17, 2006). However, Fair (2002, p. 29) speculated, based on anecdotal local density and habitat information, that 8,000 yellow-billed loons breed in Canada and 5,000 breed in Russia. Combining these estimates, the worldwide breeding-ground yellow-billed loon population is estimated at 16,500.

Given the lack of comprehensive scientific information relative to population estimates, there are few ways to assess population trends. In Alaska, the total number of yellow-billed loons counted in surveys is small (resulting in wide confidence intervals around annual estimates), but estimates over the last two decades do not suggest a change in the number of adults on Alaskan breeding grounds. Additional analysis of ACP and NSE survey data, using a multivariate model to account for the confounding factors of spring timing and observer experience, also indicates no discernible trend in population numbers. However, the statistical power (or ability to detect a significant change) is relatively low; a minimum of 10.4 years is required to detect a 50 percent decline in the surveyed population (based on NSE data; Larned et al. 2003, Fig. 8). Thus, in Alaska, the breeding ground population could decline to less than 2,000 individuals before current survey methods would detect a significant declining trend. The total Alaska population could decline by a larger percentage because breeding ground surveys do not include population components that remain at sea during the breeding season (pre-breeding and reproductively mature but non-breeding individuals). Thus, a significant decline in these population components in Alaska could not be readily detected with current surveys. Further, any decline in yellow-billed loons in Russia and Canada could not be detected because these are not currently surveyed. Finally, a decline in the breeding component may be masked by movement of previously uncounted individuals to vacated territories (resulting in sinks rather than productive breeding habitats); this decline would not be detected with current surveys.

Conservation Status

Pursuant to section 4(a) of the Act, we may list a species or subspecies of fish or wildlife or plants, or distinct population segment (DPS) of a vertebrate taxa, on the basis of any of the following five factors: (A) present or threatened destruction, modification, or curtailment of a species' habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. The petition asserts that yellow-billed loons are subject to threats primarily under Factors A, C, D, and E, above. We used information provided by the petitioners and available in our files to address the relationship of these factors to the yellow-billed loon and its habitats.

Certain intrinsic aspects of yellow-billed loon ecology and demography, including low and variable productivity, adult survival, and low population numbers, are important to consider when evaluating the species' status and its threats. Healthy populations of K-selected species, such as the yellow-billed loon, are characterized by low annual productivity rates balanced with high annual survival rates, meaning that individuals must live many years to replace themselves with offspring that survive to recruit into the breeding population. Low productivity means that depleted K-selected species have lower recovery potential and slower recovery rates following population declines than r-selected species, which are characterized by high annual productivity. Factors that reduce productivity, including loss of productive breeding habitats, reduction in prey populations, or increases in nest predators, may further constrain a K-selected species' recovery. Further, most arctic species are characterized by variable annual productivity, given the vagaries and severity of arctic weather, fluctuations in predator-prey relationships (e.g., reproductive success of many predators fluctuates with large annual variation in lemming abundance), and other aspects of arctic ecology. The population impact of threats that reduce productivity could be magnified if coincident with a rare year of otherwise high productivity.

Although factors that compromise productivity can cause populations to decline, adult survival may be the most important determinant of a K-selected species' population size and persistence (Smith and Smith 2001, p. 235). If adults are removed from the population prior to replacing themselves (i.e., adult survival is decreased), the population will decline. Perhaps most pertinent to a discussion of extinction, rare species—those with low numbers—are intrinsically closer to a threshold below which recovery is not possible (i.e., minimum viable population) (Hunter 1996, p. 137). Species can be rare because of restriction to a rare type of habitat, limitation to a small geographic range, or occurrence at low densities (Hunter 1996, p. 129), all of which are true for yellow-billed loons. Because rare species are closer to extinction to begin with, potential threats become more urgent and imminent, even if we have not studied and therefore not documented their occurrence or effects.

A. Present or Threatened Destruction, Modification, or Curtailment of a Species' Habitat or Range

The petitioners assert that yellow-billed loon freshwater breeding habitats are threatened by oil, gas, and mineral development, and that marine wintering and migrating habitats are threatened by degradation of the marine environment. Disturbance from human presence and noise from construction and aerial traffic, changes in freshwater chemistry or pollutant loads, and changes in freshwater hydrology associated with oil and gas development are addressed by the petitioners under Factor E, but warrant discussion under Factor A because they are potential mechanisms Start Printed Page 31260for rendering breeding habitats unsuitable. (Additional impacts associated with development on the breeding grounds, such as increased predation, are discussed under Factors C and E.)

Discussion of disturbance, pollution, hydrologic alterations, and other impacts from development that may reduce the suitability of breeding habitats is relevant because much of the yellow-billed loon's limited, specific, and concentrated breeding habitat in Alaska is available for oil and gas leasing and development. Approximately three-quarters of the yellow-billed loons that nest in Alaska, and over 90 percent of those that nest on Alaska's North Slope, occur within the 9.5-million-ha (23.5-million-ac) National Petroleum Reserve-Alaska Plan (NPR-A), and information available in our files indicates that some of the highest-density yellow-billed loon breeding areas overlap with areas of high economic oil potential. The petitioners cite National Environmental Policy Act (NEPA) planning documents for oil and gas leasing and exploration in NPR-A to support their assertion that oil and gas exploration and development will occur. The BLM has conducted four lease sales in the NPR-A since 1999. In the Northeast Planning Area, sales held in May 1999 and June 2002 resulted in leases covering 404,685 ha (1.45 million ac) (http://www.blm.gov/​ak/​ak940/​fluids/​boe_​npra_​index.html, accessed March 30, 2007), on which 21 exploration wells were drilled from 2000 to 2007 (http://www.blm.gov/​ak/​ak940/​fluids/​boe_​explrtn_​actvty.html, accessed March 30, 2007). In the Northwest Planning Area, sales held in June 2004 and September 2006 resulted in leases covering 809,371 ha (2.34 million ac), on which 3 exploration wells were drilled in 2006 and 2007 (http://www.blm.gov/​ak/​ak940/​fluids/​boe_​explrtn_​actvty.html, accessed March 30, 2007). If exploration drilling results in discovery of a commercially viable field, “* * * it typically takes an additional 4 to 10 years for further study, design, and installation of facilities before production can begin.” (USDOI-BLM 2006, p. 2-6). Because most of yellow-billed loon breeding habitats are in NPR-A, and because approximately half of the high-density breeding areas overlap with leased areas that have high potential for economically recoverable oil, the likelihood of threats from oil and gas development to the species occurring within the next ten years is high.

The petitioners assert that loons as a genus are extremely susceptible to disturbance, and information in our files suggests that yellow-billed loons may be very sensitive to human presence (North 1994, p. 16). Disturbance can cause yellow-billed loons to abandon reproductive efforts or leave eggs or chicks unattended and exposed to predators or bad weather. A yellow-billed loon's normal behavior can be interrupted at a distance of up to 1.6 kilometers (1 mile) from humans, although these behavioral changes can vary by individual and circumstance (Earnst 2004b, p. 1). When undisturbed, yellow-billed loons rarely leave eggs or chicks, and they effectively defend both from aerial predators (Earnst 2004b, p. 1). Further, although information available in our files suggests displaced common loons may successfully breed in alternative sites (e.g., common loons not accustomed to human activity have relocated breeding activities in response to human presence) (numerous studies cited in Evers 2004, p. 35), alternative suitable breeding sites are likely not available for yellow-billed loons, as evidenced by inter- and intra-specific competition for nesting and brood-rearing lakes of suitable size and depth, and the species' philopatric behavior (North 1994, p. 16).

The petitioners assert that oil spills and other chemical contamination that would occur with oil and gas development will also impact loons, citing information on oil toxicity and prevalence of oil spills on Alaska's North Slope. Information in our files suggests that changes in freshwater chemistry or pollutant loads, including oil spills, associated with oil and gas development may render breeding habitats unsuitable, and both have been documented on Alaska's North Slope (NRC 2003, p. 6-7, 73-74). Yellow-billed loons, like other aquatic-dependent birds, are susceptible to oiling in the event of a spill. Severe effects are expected to result for birds contacted by oil spills in NPR-A (USDOI-BLM 2005, p. 4-105). Further, oil spills may have long-term effects on tundra waters by killing prey and vegetation (USDOI-BLM 2005, p. 4-78, 4-88), thereby reducing food availability and cover. Oil spills in arctic marine habitats may also affect juvenile and non-breeding yellow-billed loons (USDOI-BLM 2005, p. 4-105). The majority of spills that have occurred in association with oil and gas development on Alaska's North Slope are relatively small and cause minimal impacts to surrounding habitats or wildlife. The risks from larger and potentially more frequent spills need to be examined however.

The petitioners assert that water depletion or drawdown may affect connectedness, depth, or melt date of yellow-billed loon nesting or brood-rearing lakes and may render such areas unsuitable as breeding habitats. Information in our files indicates that industrial development on the North Slope has affected freshwater flow and drainage as a result of water withdrawals to build ice roads or drilling pads, and through permafrost decay consequent to infrastructure placement, vegetation damage, or fluid extraction and injection (NRC 2003, p. 1-11). North (1994, p. 16) and North and Ryan (1989, p. 303) suggested that permafrost decay consequent to infrastructure placement and disturbance of vegetation may cause breaching of rivers into yellow-billed loon breeding lakes, rendering them unsuitable due to fluctuating water levels (causing drowned nests) or increased turbidity (negatively affecting foraging success). Additionally, the petitioners assert and we concur that ice roads on breeding lakes may compact lake ice and delay melting (USDOI-BLM 1998, p. IV-3-b-1-b), thus delaying or discouraging yellow-billed loon breeding.

Water withdrawals used for ice roads and pads could have additional effects on habitat suitability by affecting fish populations that breeding yellow-billed loons depend upon to feed themselves and young. Although water withdrawal stipulations in oil and gas planning documents are designed to protect and monitor fish-bearing lakes, their adequacy for protecting fish that serve as yellow-billed loon prey is not currently known. The Service is working with the BLM and others to evaluate these and other accommodations that are either in place or are proposed for the protection of this species.

Areas within the yellow-billed loon's arctic breeding range in Russia and Canada may face similar developmental pressures. The petitioners assert that mineral and oil development in Russia is either unregulated or regulations are not enforced, resulting in long-term environmental impacts. In Canada, oil and gas developments within the yellow-billed loon's breeding and staging areas have been proposed. If it occurs, overlap of development (particularly unregulated development) with the specific and limited breeding areas required by yellow-billed loons will result in destruction, modification, or curtailment of habitats or range in Russia and Canada. Further, the Service and the petitioners are unaware of assessment or monitoring data to Start Printed Page 31261evaluate these effects on yellow-billed loons in Eurasia (including Russia).

There is little documentation of the degradation of marine habitats resulting in destruction or modification of yellow-billed loon habitat. However, the marine environment is clearly important for yellow-billed loons, as that is where they spend their first three years, and subsequently at least eight months per year. Particular examples of marine degradation listed by the petitioners include pollution (although oil and chemical spills are discussed under Factor E), and the effects of fishing practices such as drowning in fishing nets and depletion of the prey base through overfishing or other destructive fishing practices. The negative effects of these examples are likely to be on individual condition or survival; high survival rates, especially of breeding adults, are required for yellow-billed loon population maintenance.

Information available in our files indicates that the Yellow Sea, where all 11 Alaska-breeding yellow-billed loons with satellite transmitters wintered (Schmutz 2004, p. 1), is being degraded. There are approximately six million humans in surrounding watersheds, and the Yellow Sea is impacted by loss of wetland habitat, depleted fisheries, and industrial, agricultural, and domestic pollution (http://www.gefonline.org/​projectDetails.cfm?​projID=​790), accessed January 17, 2006). The Australian Government, in a summary of the Yellow Sea's importance to shorebirds, noted that declining river flows, pollution, and unsustainable harvesting of benthic fauna are leading to reduced benthic productivity and food declines for shorebirds (http://www.deh.gov.au/​biodiversity/​migratory/​waterbirds/​yellow-sea/​, accessed January 17, 2006). These impacts on the aquatic system would also affect wintering loon food availability, potentially reducing individual fitness prior to spring migration and breeding.

We find the petition provided substantial information to support its assertions that the threat of past, current and probable future destruction, modification, or curtailment of yellow-billed loon habitat is sufficient to warrant additional review of the species' status. In freshwater breeding areas, factors associated with oil and gas exploration and development (i.e., disturbance, pollution, and hydrologic changes) can make breeding habitats unsuitable. Marine habitats, where yellow-billed loons spend much of the year, are being degraded through overfishing and pollution.

B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

The petitioners assert that overutilization for commercial, recreational, or educational purposes is unlikely. Although the petitioners list research-related nest disturbance under this Factor, they also state that it is likely to be a minor Factor affecting the species and that the benefits of such research outweigh any adverse effects.

C. Disease or Predation

The petitioners assert that yellow-billed loons may be subjected to increased nest predation if infrastructure associated with resource development occurs in their breeding areas. Increasing numbers of ravens, gulls, and arctic foxes, some of which are documented predators of yellow-billed loon nests or young (North 1994, p. 11), have been associated with oil field infrastructure development and human-generated food sources on the North Slope of Alaska (NRC 2003, p. 6). When combined with increased predation opportunities resulting from disturbance (discussed under Factor A), the effect of increased predator numbers could be amplified. The petitioners assert that disease does not appear to be a risk to yellow-billed loons. However, since receiving the petition the highly pathogenic avian influenza has been documented in Asia where yellow-billed loons winter.

We find the petition provided substantial information to support its assertions that the threat of increased predation associated with resource development infrastructure is sufficient to warrant additional review of the species' status. Additionally, the potential impacts of avian influenza on the loon are not know at this time and may warrant further investigation.

D. Inadequacy of Existing Regulatory Mechanisms

The petitioners assert that the yellow-billed loon is not protected or is inadequately protected by existing regulations, including international conventions or agreements against threats such as development and hunting. The yellow-billed loon is not currently listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The species is listed under the United Nations Environment Program Convention on the Conservation of Migratory Species of Wild Animals (UNEP-CMS), yet the United States, Russia, Canada, and most Asian nations are not signatories (http://www.cms.int/​, accessed January 17, 2006). Although it is listed in the Russian Red Data book, and the species and its habitat are nominally protected under the U.S. Migratory Bird Treaty with the former Soviet Union (P.L. 95-616), the petitioners assert that current economic and social conditions in Russia limit the implementation and enforcement of these regulations. In Canada, the yellow-billed loon is protected under the Migratory Birds Convention Act, but subsistence hunting is allowed and is not regulated or tracked. In Canada, the yellow-billed loon is not listed on Schedule 1 (i.e., specified as “at risk”) of the Species at Risk Act of 2002, legislation similar to the Act. Currently, the species is not covered under Canadian Provincial laws or regulations and, thus, receives no protections or conservation considerations in Canada.

Within the United States, the yellow-billed loon has protection under several laws and regulations, but the petitioners assert that these are inadequate given the vulnerabilities of, and the specific threats facing, the species and its habitat. The Migratory Bird Treaty Act (MBTA) makes it unlawful to kill or take eggs or nests of yellow-billed loons, but does not provide protection for habitats, a primary concern in relation to development in breeding areas. Yellow-billed loons are not open for subsistence hunting in Alaska under migratory bird spring subsistence harvest regulations (69 FR 17318-17329). The Service and State of Alaska have recognized the yellow-billed loon as a potentially vulnerable species under the Birds of Conservation Concern (68 FR 6179) and State Comprehensive Wildlife Conservation Strategy (http://www.sf.adfg.state.ak.us/​statewide/​ngplan/​, accessed January 17, 2006), respectively. These designations provide management and research funding prioritization.

The BLM has adopted stipulations and required operating procedures for the NW and NE NPR-A (USDOI-BLM 2004, p. 2-22-23; USDOI-BLM 2005, p. 2-2-45) in order to minimize potential impacts to yellow-billed loons, such as disturbance of nesting birds and broods. These include water withdrawal standards for deep fish-bearing lakes (discussed under Factor A) and setbacks for exploratory drilling and permanent facilities near fish-bearing and deep lakes (greater than 3.9 m (13 ft) deep). While exceptions may be authorized for all stipulations and required operating procedures, the stipulations and required operating procedures were proposed to minimize impacts, including disturbance, to yellow-billed loons within BLM-managed areas. At Start Printed Page 31262this time, however, data are not available to determine how effective the stipulations and required operating procedures will be in minimizing or eliminating adverse impacts to the species. Further, the petitioners assert that some information is not provided or is erroneous and leads to unsupported conclusions about probability or magnitude of potential impacts. They note, for example, in the 1998 NE NPR-A Environmental Impact Statement (EIS), that vehicle travel was encouraged to occur more than 30 m (100 ft) from streams or lakes bearing overwintering fish, a stipulation not included in the 2005 NE NPR-A Final Amended EIS (USDOI-BLM 2005) or in the NW NPR-A Record of Decision (ROD)(USDOI-BLM 2004). While the rationale for removal of the stipulation was that travel on lakes is limited to specified areas (water pumping stations and ice roads), thus reducing ice and snow compaction, there are other reasons for restricting travel near fish-bearing water bodies, including reducing contamination from spills or ice-road maintenance activities. The petitioners also claim that the Final EIS for the Minerals Management Service's (MMS) 1996 Beaufort Sea Planning Area Oil and Gas Lease Sale 144 fails to acknowledge documented use of marine foraging areas on the North Slope (USDOI-MMS 1996, p. IV-B-21). The Service is working with BLM and others to thoroughly review the biological needs of the yellow-billed loon, evaluate the conservation measures proposed by BLM to conserve this species, and identify any other measures that would help to avoid and minimize impacts to the species in its range within NPR-A.

We find the petition provided substantial information to support its assertions that the yellow-billed loon's habitat is not currently protected by existing regulatory mechanisms in the U.S. and Canada.

E. Other Natural or Manmade Factors Affecting the Species' Continued Existence

The petitioners assert that other natural or manmade factors may threaten yellow-billed loons. These factors include small population size and low productivity; vulnerability to oil spills and other contaminants; water depletion associated with oil and gas development; incidental bycatch in commercial or subsistence fishing nets; and hunting. Increased predation, disturbance, and water withdrawals associated with oil and gas development, and marine pollution, were discussed under Factors A and C.

As previously discussed, small population size, low and variable productivity, and dependence upon high adult survival are all ecological characteristics of yellow-billed loons, a K-selected species. These characteristics mean that the yellow-billed loon is inherently more vulnerable to perturbations that impact their survival and reproductive success because their population would take longer to recover from declines than a more common or fecund species. Additionally, many of the factors discussed under Factor E may affect adult survival, which may be more important to population maintenance in these long-lived birds than annual productivity (Smith and Smith 2001, p. 235). K-selected species like the yellow-billed loon also tend to be specialists, efficiently using particular environments, but they are often at or near carrying capacity, resource-limited, poor colonizers, and generally do not do well in disturbed environments (Smith and Smith 2001, p. 235). They are also highly vulnerable to random environmental or anthropogenic events, such as the threats described below.

Yellow-billed loons, like other loons, are potentially vulnerable to oil and chemical spills throughout their range. Of the 30,000 bird carcasses recovered after the Exxon Valdez oil spill, approximately 1.5 percent (450) were loons (with an unknown percentage of yellow-billed loons; Piatt et al. 1990, p. 391). As recovered carcasses represent only a fraction of actual oil spill mortality (Wiens 1996, p. 596), yellow-billed loon loss may have been high relative to population size (Piatt et al. 1990, p. 395). Habitat alterations associated with oil, gas, and mineral development were addressed in Factor A, and although an oil spill may make habitats unsuitable, perhaps the effect of most concern is mortality. Because loons in general are so dependent upon the aquatic environment and spend so little time on land, they are particularly at risk for exposure during an oil spill. Oiled birds die primarily from hypothermia because oil coats their normally insulating and buoyant feathers, preventing efficient thermoregulation. They can also die from oil ingested during preening. Egg viability can be diminished through contact with even small amounts of oil on feathers of incubating adults (e.g., Harfenist et al. 1990, p. 902). Oil spills may also alter foraging habitats, acutely by killing large numbers of prey, or chronically by altering community structure via long-term exposure to oil or its components (e.g., Peterson et al. 1996, p. 2637). In migrating and wintering areas of the Pacific, current and future oil and gas development will only increase, such as in the Yellow Sea (http://www.china.org.cn/​english/​7352.htm), accessed January 17, 2006), or on Sakhalin Island, Russia.

Anecdotal data indicate that loons, including yellow-billed loons, may die as incidental bycatch in commercial and subsistence gill nets, although more data are needed to accurately quantify this threat. Service law enforcement agents have been told that yellow-billed loons are routinely and unavoidably caught in subsistence fishing nets on the Ikpikpuk River (Roberts 2004), and this presumably occurs on other North Slope rivers with gillnetting. Additionally, intensive commercial fishing, a likely source of bycatch mortality, occurs in yellow-billed loon wintering areas in Asia, particularly the Yellow Sea (Elvidge et al. 2001, Fig. 2).

Yellow-billed loons have also been hunted for subsistence purposes, especially for their feathers for use in traditional dance regalia. Hunting is not allowed under current spring subsistence hunting regulations in Alaska (i.e., they are not on the list of “open” species). Annual subsistence harvest surveys conducted in Alaska from 1990 to 1999 indicate a total estimated harvest of 98 yellow-billed loons (Wentworth and Wong 2001, p. 107). In Russia and Canada, traditional or subsistence use of yellow-billed loons is not regulated. Specifically, many subsistence species may be taken at higher rates in Russia than in Alaska, because of the relative lack of paying jobs, and yellow-billed loons are included as customary and traditional subsistence-use species on the 1996 protocol amending the 1916 Convention for the Protection of Migratory Birds between the United States and Canada (Letter of Submittal dated May 20, 1996, as cited in 70 FR 55691-55699).

We find the petition provided substantial information to support its assertions that the threats of other natural and manmade factors, including small population size, low productivity, vulnerability to spilled oil and other contaminants, water depletion associated with resource development, incidental bycatch, and hunting , are sufficient to warrant additional review of the species' status.

Finding

We have reviewed the petition and supporting information. We have found:

(1) On April 5, 2004, we received a petition from the Center for Biological Diversity and others to list the yellow-billed loon as endangered or threatened Start Printed Page 31263throughout its range or as a Distinct Population Segment and to designate critical habitat. The petition describes multiple threats to the yellow-billed loon, including destruction or modification of habitats due to development and pollution, lack of regulatory protection, and other factors such as mortality from drowning in fishing nets and hunting. The petition emphasized that certain other factors, including limited and specific breeding habitats, a small global population, and low reproductive rate, make yellow-billed loons more susceptible to the threats identified in the petition and less likely to recover after declines. The petitioners assert that yellow-billed loon freshwater breeding habitats are threatened by oil, gas, and mineral development, and that marine wintering and migrating habitats are threatened by degradation of the marine environment.

(2) Yellow-billed loons breed in remote circumpolar areas, generally above the Arctic Circle, with harsh climates and low human population densities. Yellow-billed loons nest exclusively in coastal and inland low-lying tundra from 62 to 74° N latitude, in association with permanent, fish-bearing lakes in Alaska, Canada, Russia, and rarely in far northern Norway and Finland. Populations are thought to be limited primarily by availability of breeding habitat, specifically nesting and brood-rearing lakes.

(3) Our knowledge of the status of the yellow-billed loon is far from complete, but the worldwide population is believed to be relatively small. The only known comprehensive yellow-billed loon population estimates are from Alaska. The total Alaska yellow-billed loon population may be 3,700 to 4,900. The Service is unaware of scientifically valid population estimates for other areas. However, anecdotal density and habitat information have caused at least one scientist to speculate that 8,000 yellow-billed loons breed in Canada and 5,000 breed in Russia. Combining these estimates, the worldwide breeding-ground yellow-billed loon population may be roughly 16,500.

(4) Given the lack of comprehensive scientific information relative to yellow-billed loon population estimates, there are few means with which to assess population trends. In Alaska, the number of yellow-billed loons counted in surveys is small (resulting in wide confidence intervals around annual estimates). Although estimates over the last two decades do not show a change in the number of adults on the breeding grounds, the ability to statistically detect a significant change is relatively low. Thus, the Alaska breeding ground population could decline significantly before current survey methods would detect a declining trend. Other breeding areas are not surveyed at all.

(5) Yellow-billed loons have relatively low annual recruitment but relatively high annual adult survival, meaning that individuals must live many years to replace themselves with offspring that survive to recruit into the breeding population. Biologists identify species such as the yellow-billed loon as K-selected species, which are especially vulnerable to threats and are less likely to recover after declines.

(6) While comprehensive information on the biology of the yellow-billed loon is not complete, available scientific information and the professional judgment of knowledgeable biologists suggests that loons in general are relatively sensitive to human activity, and development and infrastructure located close to breeding lakes will affect the species and may cause reduced breeding success and declining populations. Flushing or other changes in normal nesting behavior can cause eggs or young to be vulnerable to cold and predation. Increased predation of eggs and chicks due to human disturbance has been documented in loons.

(7) Approximately 75 percent of the yellow-billed loons that nest in Alaska are found within the NPR-A (25 percent in NE NPR-A and 50 percent in NW NPR-A), which is managed by BLM. Of the 1.9 million ha (4.6 million ac) in NE NPR-A, a 1998 Record of Decision (ROD) made 87 percent available for oil and gas leasing. In June 2004, the BLM released a draft amended EIS that may allow an increase in the area available for leasing to 95 percent of the unit. In the 3.6 million ha (8.8 million ac) of NW NPR-A, a January 2004 ROD made all BLM-administered lands available for leasing. The EIS process for the 4.1 million-ha (10.1 million-ac) S NPR-A has begun. In summary, much of the higher density loon breeding area lies within the area identified as having high potential for oil development and exploration and development has begun in certain areas and will likely begin in others soon (i.e., within the next ten years).

(8) As exploration and development occurs in the NPR-A, the potential for disturbance, pollution, hydrologic alterations, and other impacts on the yellow-billed loon and its limited, specific, and concentrated breeding habitat will need to be addressed. Additionally, increased predator numbers are often associated with industrial development in Arctic areas and could adversely impact nesting success without careful planning and management.

(9) Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (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 to indicate that the petitioned action may be warranted. Our standard for substantial scientific information 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)). When a substantial finding is made, we are required to promptly begin a thorough review of the status of the species, if one has not already been initiated.

We have determined that the information in the petition would lead a reasonable person to believe that the measure proposed by the petition may be warranted. Therefore, we find that the petition presents substantial information indicating that listing the yellow-billed loon may be warranted. While we note the lack of documented scientific information on the effects of threats to yellow-billed loons, the yellow-billed loon is restricted in its breeding habitat and, in Alaska, it breeds primarily within a geographic area that has significant development potential. Therefore, the responsible course of action is to review in detail the threats and vulnerabilities listed in the petition and to thoroughly review the scientific literature and other information to determine if listing the species is warranted. To do otherwise could subject the species to significant risks from which it may have difficulty recovering. We have also developed, together with the BLM and other agencies, a Conservation Agreement that addresses a subset of threats to the loon in a portion of the species' range. The strategies for conservation in the Agreement include: Implement specific actions to protect yellow-billed loons and their breeding habitats in Alaska from potential impacts of land uses and management activities, including oil and gas exploration and development; inventory and monitor yellow-billed loons breeding populations in Alaska; determine and reduce, if significant, the impact of subsistence activities on yellow-billed loons (including subsistence fisheries and hunting) in Alaska; and conduct biological research on yellow-billed loons, including response to management actions. We invite comments on management strategies and research needs that Start Printed Page 31264should be considered during scheduled annual reviews of the Conservation Agreement.

Following completion of the status review, we will evaluate whether the species or a Distinct Population Segment warrant listing as endangered or threatened. The petitioners also requested that critical habitat be designated for this species. We always consider the need for critical habitat designation when listing species. If we determine in our 12-month finding that listing the yellow-billed loon is warranted, we will address the designation of critical habitat at the time of the proposed rulemaking.

References Cited

A complete list of all references cited herein is available upon request from the Fairbanks Fish and Wildlife Field Office, U.S. Fish and Wildlife Service (see ADDRESSES).

Author

The primary author of this document is Dr. Angela Matz, Fairbanks Fish and Wildlife Field Office, U.S. Fish and Wildlife Service, Fairbanks, Alaska.

Start Authority

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

End Authority Start Signature

Dated: May 11, 2007.

Kenneth Stansell,

Acting Director, U.S. Fish and Wildlife Service.

End Signature End Supplemental Information

[FR Doc. E7-10823 Filed 6-5-07; 8:45 am]

BILLING CODE 4310-55-P