American Eel and Atlantic Sturgeon: Will They Become Listed Species?

American Eel

In 2007, the U.S. Fish and Wildlife Service (the Service) made a formal finding that listing the American eel as a threatened or endangered species was not scientifically warranted.  The Service has decided again to evaluate whether to list the American eel and is seeking public comment until November 28, 2011 as part of a new status review.

The latest review was prompted by an April 2010 petition filed by the Council for Endangered Species Act Reliability (CESAR).  After being inhibited by funding limitations and delayed as it waited for CESAR to provide materials referenced in its petition, the Service recently found that CESAR’s petition presents substantial scientific or commercial information indicating that listing the American eel as a threatened or endangered species may be warranted.  This finding triggers a more thorough “status review” that is supposed to be completed within the next year.  To assist in this review, the Service is soliciting public comment – specifically, scientific information not previously available or not considered as part of the 2007 review – that addresses the factors considered by the Service when deciding whether to list a species.  The categories of information sought are listed in the Federal Register notice of finding and initiation of status review.

The Federal Register notice also contains the Service’s reasoning for conducting a new status review only four years after finding that scientific evidence did not support listing the American eel.  Notably, the Service concluded that CESAR presented no new evidence justifying modification of the Service’s 2007 conclusion that hydropower and contaminants do not pose a significant threat to the American eel population.  The Service found, however, that new information about the effects of climate change on the species may warrant listing the American eel as threatened throughout its entire range.  Although hydropower project owners and dischargers are not identified as significant threats to American eels, if the species is listed there is potential for these and other users of rivers and water bodies where American eels are present to need to modify their activities to avoid potential harm to the eels.  Where adverse impacts are unavoidable, incidental take permitting also may be required.

Atlantic Sturgeon

In October 2010, the National Marine Fisheries Service (NMFS) proposed listing the Gulf of Maine (GOM) distinct population segment (DPS) of Atlantic sturgeon as a threatened species.  (We discussed this proposed listing in a prior alert.)  The October 6, 2011 deadline for making a final listing decision has passed.  While we are unsure when NMFS will make its determination, we anticipate a decision either later this year or early in 2012.

*    *    *

Should you be interested in providing comments as part of the American eel status review, please let us know.  Also, if you would like to learn more about the efforts to list either the American eel or Atlantic sturgeon as a threatened species or the potential impact such a listing may have on you, please contact Matt Manahan at mmanahan@pierceatwood.com or (207) 791-1189 or Nick Livesay at nlivesay@pierceatwood.com or (207) 791-1281.