[Federal Register Volume 59, Number 242 (Monday, December 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31063]
[[Page Unknown]]
[Federal Register: December 19, 1994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB66
Endangered and Threatened Wildlife and Plants; Critical Habitat
Determination for the Delta Smelt
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The Fish and Wildlife Service (Service) designates critical
habitat for the threatened delta smelt (Hypomesus transpacificus)
pursuant to the Endangered Species Act of 1973, as amended (Act) (16
U.S.C. 1531 et seq.). This final rule designates critical habitat for
the delta smelt in the following geographic areas--areas of all water
and all submerged lands below ordinary high water and the entire water
column bounded by and contained in Suisun Bay (including the contiguous
Grizzly and Honker Bays); the length of Goodyear, Suisun, Cutoff, First
Mallard (Spring Branch), and Montezuma sloughs; and the existing
contiguous waters contained within the Delta, as defined in section
12220 of the California Water Code. Critical habitat designation for
the delta smelt will provide additional protection under section 7 of
the Act with regard to activities that require Federal agency action.
EFFECTIVE DATE: January 18, 1995.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at U.S. Fish and Wildlife
Service, Sacramento Field Office, 2800 Cottage Way, Room E-1803,
Sacramento, California 95825-1846.
FOR FURTHER INFORMATION CONTACT: Joel A. Medlin, Sacramento Field
Office (see ADDRESSES section) at (916) 978-4613.
SUPPLEMENTARY INFORMATION:
Background
Historically, the delta smelt is thought to have occurred from
Suisun Bay upstream to the City of Sacramento on the Sacramento River
and the City of Mossdale on the San Joaquin River (Moyle et al. 1992).
The delta smelt is a euryhaline species (tolerant of a wide salinity
range) that spawns in fresh water and has been collected from estuarine
waters up to 14 grams per liter (equivalent to ppt) salinity (Moyle et
al. 1992). For a large part of its annual life span, this species is
associated with the freshwater edge of the mixing zone (zone of mixing
or entrapment at the saltwater-freshwater interface), where the
salinity is approximately 2 ppt (Ganssle 1966, Moyle et al. 1992,
Sweetnam and Stevens 1993).
Shortly before spawning, adult delta smelt migrate upstream from
the highly productive brackish-water habitat associated with the mixing
zone to disperse widely into river channels and tidally-influenced
backwater sloughs (Radtke 1966, Moyle 1976, Wang 1991).
Delta smelt spawn in shallow, fresh or slightly brackish water
upstream of the mixing zone (Wang 1991), mostly in tidally-influenced
backwater sloughs and channel edgewaters (Moyle 1976; Wang 1986, 1991;
Moyle et al. 1992). Although delta smelt spawning behavior has not been
observed in the wild (Moyle et al. 1992), the adhesive eggs are thought
to attach to substrates such as cattails and tules, tree roots, and
submerged branches (Moyle 1976, Wang 1991). In the Delta, spawning is
known to occur in the Sacramento River and in Barker, Lindsey, Cache,
Georgiana, Prospect, Beaver, Hog, and Sycamore sloughs (Wang 1991; Dale
Sweetnam, pers. comm., 1993). Delta smelt also spawn north of Suisun
Bay in Montezuma and Suisun sloughs and their tributaries (Lesa Meng,
pers. comm., 1993; Dale Sweetnam, pers. comm., 1993).
The spawning season varies from year to year and may occur from
late winter (December) to early summer (July and August). Moyle (1976)
collected gravid adults from December to April, although ripe delta
smelt were most common in February and March. In 1989 and 1990, Wang
(1991) estimated that spawning had taken place from mid-February to
late June or early July, with the peak spawning period occurring in
late April and early May. In 1993, a wet year, spawning may have
occurred as early as January and extended into June (Dale Sweetnam,
pers. comm., 1994). Peak spawning occurred in April of that year. In
1994, a critically dry year, peak spawning occurred at the end of
April, and may have begun as early as late February or early March
(Dale Sweetnam, pers. comm., 1994).
In the laboratory, delta smelt eggs hatch in 10 to 14 days (Randy
Mager, University of California, pers. comm., 1993). Laboratory
observations indicate that delta smelt are broadcast spawners that
spawn in a current, usually at night, distributing their eggs over a
local area (Lindberg 1992, Mager 1993). Eggs attach singly to the
substrate, and few eggs were found on vertical plants (Lindberg 1993).
Lindberg (1993) found that yolk-sac fry were positively phototactic and
negatively buoyant. After hatching, larvae are transported downstream
toward the mixing zone where they are retained by the vertical
circulation of fresh and salt waters (Stevens et al. 1990). The pelagic
larvae feed on phytoplankton until day 4, begin to feed on rotifers on
day 6 and Artemis nauplii on day 14 (Mager 1992). Juveniles feed
exclusively on zooplankton. When the mixing zone is located in a broad
geographic area with extensive shallow-water habitat within the
euphotic zone (depths less than 4 meters), high densities of
phytoplankton and zooplankton are produced (Arthur and Ball 1978, 1979,
1980), and larval and juvenile fish, including delta smelt, grow
rapidly (Moyle et al. 1992, Sweetnam and Stevens 1993). When given the
opportunity, delta smelt remain in Suisun Bay even after the 2 ppt
isohaline has retreated upstream (Herbold 1994). In general, estuaries
are among the most productive ecosystems in the world (Goldman and
Horne 1983). Estuarine environments produce an abundance of fish as a
result of plentiful food and shallow, protective habitat for young.
When the mixing zone is contained within Suisun Bay, young delta
smelt are dispersed widely throughout a large expanse of shallow-water
and marsh habitat. Dispersal in areas downstream from the State and
Federal water pumps and in-Delta agricultural diversions protects young
delta smelt from entrainment and distributes them among the extensive,
protective, and highly productive shoal regions of Suisun Bay. In
contrast, when located upstream, the mixing zone becomes confined in
the deep river channels, which are smaller in total surface area,
contain fewer shoal areas, have swifter, more turbulent water currents,
and lack high zooplankton productivity. Vulnerability to entrainment in
the State and Federal pumping facilities and in-Delta diversions
increases.
Erkkila et al. (1950) collected young delta smelt near Sherman
Island, at the confluence of the Sacramento and San Joaquin Rivers, in
July and August of 1948. In studies by the California Department of
Fish and Game, California Department of Water Resources (DWR), and the
Bureau, larval and juvenile delta smelt were collected from Roe Island
in Suisun Bay north to the confluence of the Sacramento and Feather
Rivers and east to Medford Island on the San Joaquin River (Wang 1991).
These studies were conducted during the months of April through mid-
July in 1989 and 1990. Through these distribution surveys, Wang (1991)
was able to document the movement of juvenile delta smelt from the
Delta to Suisun Bay in late June and early July. In 1990, young delta
smelt were taken at the Tracy Pumping Plant at the end of February
(Wang 1991).
The delta smelt is adapted to living in the highly productive
Sacramento-San Joaquin River Estuary (Estuary) where salinity varies
spatially and temporally according to tidal cycles and the amount of
freshwater inflow. Despite this tremendously variable environment, the
historical Estuary probably offered relatively constant suitable
habitat conditions to delta smelt, which could move upstream or
downstream with the mixing zone (Peter Moyle, University of California,
pers. comm., 1993). Since the 1850's, however, the amount and extent of
suitable habitat for the delta smelt has declined dramatically. The
advent in 1853 of hydraulic mining in the Sacramento and San Joaquin
Rivers led to increased siltation and alteration of the circulation
patterns of the Estuary (Nichols et al. 1986, Monroe and Kelly 1992).
The reclamation of Merritt Island for agricultural purposes in the same
year marked the beginning of the present-day cumulative loss of 94
percent of the Estuary's tidal marshes (Nichols et al. 1986, Monroe and
Kelly 1992).
In addition to this degradation and loss of estuarine habitat, the
delta smelt has been increasingly subject to entrainment, upstream or
reverse flows of waters in the Delta and San Joaquin River, and
constriction of habitat in the less productive, deep-water river
channels of the Delta (Moyle et al. 1992). These adverse conditions are
primarily a result of the steadily increasing proportion of water
diverted from the Delta by the Federal and State water projects (Monroe
and Kelly 1992). Water delivery through the Federal Central Valley
Project (CVP) began in water year 1940. The State Water Project (SWP)
began delivering water in 1968. However, the proportion of fresh water
being diverted has increased since 1983 and has remained at high levels
(Moyle et al. 1992). A relationship has been found between the number
of juvenile delta smelt salvaged at the State and Federal pumps and
both the percent of inflow diverted and total Delta outflow (California
Department of Water Resources and Bureau of Reclamation 1994). The high
proportion of fresh water exported has exacerbated the already harsh
environmental conditions experienced by the delta smelt during the
recent 6-year drought (1987-1992). The March 5, 1993 (58 FR 12854),
final rule listing the delta smelt as a threatened species describes in
detail the factors that have led to this species' decline.
Previous Service Action
In the January 6, 1989 (54 FR 554), Animal Notice of Review, the
Service included the delta smelt as a category 1 candidate species.
Category 1 includes species for which data in the Service's possession
are sufficient to support proposals for listing. On June 29, 1990, the
Service received a petition dated June 26, 1990, from Dr. Don C. Erman,
President-Elect of the California-Nevada Chapter of the American
Fisheries Society, to list the delta smelt as an endangered species and
designate its critical habitat. The Service made a 90-day finding that
substantial information had been presented indicating that the
petitioned action may be warranted and announced this decision in the
Federal Register on December 24, 1990 (55 FR 52852). On October 3, 1991
(56 FR 50075), the Service published a proposal to list the delta smelt
as a threatened species and to designate critical habitat. This
proposed rule constituted the 12-month petition finding in accordance
with section 4(b)(3)(B) of the Act.
Critical habitat was proposed for areas of all water and all
submerged lands below ordinary high water and the entire water column
bounded by and contained within Suisun Bay (including the contiguous
Grizzly and Honker Bays), the length of Montezuma Slough, portions of
the Sacramento River, portions of the Sacramento-San Joaquin Delta,
portions of the San Joaquin River, and the contiguous water bodies in
between (a complex of bays, dead-end sloughs, channels typically less
than four meters deep, marshlands, etc.), contained in the State of
California. The public comment period opened on the date of publication
of the proposed rule (October 3, 1991) and closed on January 31, 1992.
On December 19, 1991 (56 FR 65877), the Service published a notice
of public hearing on the proposed rule to be held in three locations in
California. Public hearings were conducted on January 9, 1992, in
Sacramento; on January 14, 1992, in Santa Monica; and on January 16,
1992, in Visalia.
The final rule listing the delta smelt as a threatened species was
published on March 5, 1993 (58 FR 12854). In the final rule, the
Service postponed the decision on critical habitat designation. At that
time, the economic analysis necessary to determine critical habitat was
still in progress. On March 16, 1993 (58 FR 14199), the Service
reopened the public comment period until April 30, 1993, to allow the
Service to consider any economic or biological information that
previously had not been submitted.
Revisions to the October 3, 1991, Critical Habitat Proposal
The Service published a revision to the October 3, 1991, proposed
rule to designate critical habitat for the delta smelt on January 6,
1994 (59 FR 852). The revision was based primarily on information
gathered by the California Department of Fish and Game (Dale Sweetnam,
California Department of Fish and Game, pers. comm., 1993) and the
University of California, Davis (Lesa Meng, U.S. Fish and Wildlife
Service pers. comm., 1993). This information showed that in 1993, delta
smelt spawned in the Sacramento River, at least as far upstream as the
City of Sacramento and in tidally-influenced shallow freshwater sloughs
(Dale Sweetnam, pers. comm., 1993). In 1991, when delta smelt had all
but disappeared from Suisun Marsh, relatively large numbers of delta
smelt were caught in Suisun Slough, as far upstream as Suisun City
(Lesa Meng, pers. comm., 1993). The revised rule proposed to expand the
geographic extent of critical habitat to include additional areas now
known to constitute important spawning habitat.
In addition, in an April 23, 1993, letter received during the
public comment period, the Environmental Protection Agency (EPA)
requested that new scientific information presented in its draft
proposed Bay/Delta water quality standards be considered in the
Service's designation of critical habitat. The water quality standards
were to apply to the surface waters of the Sacramento River, San
Joaquin River, and San Francisco Bay and Delta of the State of
California (Bay/Delta) pursuant to section 303 of the Clean Water Act
(CWA). As a result of EPA's analysis respecting the number of days that
low-salinity water was historically located at three locations in the
Estuary, the Service refined the description of the constituent
elements for the delta smelt. The proposed critical habitat was revised
therefore to encompass upstream spawning habitats and to better define
constituent elements necessary to protect those areas essential to the
recovery of the species. Comment on the revised proposal and its draft
economic analysis was solicited.
On the same date that the Service published its revised critical
habitat rule, the Service proposed the Sacramento splittail
(Pogonichthys macrolepidotus) as a threatened species and EPA published
its proposed rule to establish water quality standards for surface
waters of the Sacramento River, San Joaquin River, and San Francisco
Bay and Delta pursuant to section 303 of the CWA. Those water quality
standards are meant to protect the estuary as a whole, and therefore
contain more than the salinity criterion. EPA's water quality proposal
also includes salmon smolt survival criteria to protect fish migration
and cold freshwater habitat designated uses in the estuary in its
January 6, 1994, rule, along with proposed striped bass spawning
criteria.
Designation of critical habitat at this time is part of a
coordinated effort between the Service, EPA, National Marine Fisheries
Service (NMFS), and the Bureau of Reclamation (Bureau) (collectively,
``Club Fed'') to protect and recover the delta smelt and the Estuary
ecosystem.
Relationship Between Fish and Wildlife Service and EPA Actions
The Service and EPA recognized that their proposed regulatory
actions (e.g., delta smelt critical habitat and EPA's water quality
standards) overlapped biologically and economically. As such, both
agencies worked closely to provide a comprehensive, ecosystem-based
approach for the protection of the fish and wildlife resources of the
Estuary. This coordination has resulted in regulatory actions that are
integrated in both substance and timing.
Biologically, the critical habitat designation for the delta smelt
and the salinity criteria within EPA's water quality standards are
directly related. Specifically, salinities of 2 ppt in Suisun Bay were
identified as a primary constituent element in the October 3, 1991,
critical habitat proposal. Subsequent scientific publications indicate
that salinities associated with the distribution of delta smelt may
provide the best basis for setting standards for many species that are
affected by freshwater discharge from the Estuary (Moyle et al. 1992;
San Francisco Estuary Project 1993). Favorable conditions from February
through June are important to the abundance and reproductive success of
almost all species that live in or migrate through the upper Estuary.
Because EPA's water quality standards address the location of 2 ppt
salinities from February to June, its standards will address certain
critical habitat (water quality) requirements for delta smelt.
In the text of the January, 6, 1994, proposed rule to designate
critical habitat for the delta smelt, the Service identified specific
salinity criteria required to maintain habitat for delta smelt through
its entire life cycle. These criteria had been determined in
coordination with EPA in preparation of its proposed water quality
standards. Subsequent to publication of the critical habitat proposed
rule, the Service received many comments objecting to the specificity
of the salinity criteria. During numerous discussions with interested
parties (and in the following response to comments), Service staff have
explained that the detailed discussion within the text of the proposed
rule was meant to clearly describe the need for including a water
quality criterion specific to salinity as one primary constituent
element. The actual regulation that was proposed for publication in the
Code of Federal Regulations, however, was much less specific as to
allow broad flexibility in implementation of the provisions of the Act.
Therefore, to clarify the Service's intent to preserve the flexibility
inherent in implementation of the section 7 regulations, the following
discussion of the primary constituent elements necessary to define
delta smelt critical habitat, is general in scope. However, the Service
has coordinated carefully and extensively with EPA to ensure that EPA's
final rule promulgating Water Quality Standards for Surface Waters of
the Sacramento River, San Joaquin River, and San Francisco Bay and
Delta of the State of California affords sufficient protection to
further the recovery of the delta smelt. EPA's final rule is published
in this same Federal Register, in a separate part. In its proposed
rule, EPA requested that specific comments be submitted on several
issues, including the possibility of modifying the Sacramento River
Index for the purposes of developing the salinity criteria, alternative
approaches to the averaging period used in its proposed salinity
criteria, and evaluation of the merits of the use of different forms of
confidence intervals with the proposed criteria. In developing this
final rule, the Service has considered all such comments. These issues
also were discussed with EPA in regard to the development of its water
quality standards and the Service's section 7 consultation with EPA on
promulgation of these standards.
Section 7 of the Act requires that all Federal agencies ensure that
their actions do not jeopardize the continued existence of listed
species or adversely modify designated critical habitat. EPA's action
in promulgating water quality standards must comply with the section 7
consultation requirement.
Definition of Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as ``(i)
the specific areas within the geographical area occupied by the species
at the time it is listed * * * on which are found those physical or
biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protection; and (ii) specific areas outside the geographical area
occupied by the species at the time it is listed * * * upon a
determination * * * that such areas are essential for the conservation
of the species.'' The term ``conservation'', as defined in section 3(3)
of the Act, means ``* * * to use and the use of all methods and
procedures which are necessary to bring an endangered species or
threatened species to the point at which the measures provided pursuant
to this Act are no longer necessary.'' With recovery, no protection
from the Act is necessary. Therefore, areas designated as critical
habitat must contain those physical or biological features essential to
recover a species to the point that it no longer requires protection
under the Act and can be removed from the list of endangered and
threatened species. Section 3(c) further states that in most cases the
entire range of a species should not be encompassed within critical
habitat. Areas outside the present geographic range may be included as
critical habitat if a species' present range would be inadequate to
ensure conservation of the species.
Role in Species Conservation
Use of the term ``conservation'' in the definition of critical
habitat indicates that its designation should identify areas that may
be needed for a species' recovery and delisting.
The designation of critical habitat will not, in itself, lead to
recovery, but is one of several measures available to contribute to a
species' recovery. Critical habitat helps focus conservation activities
by identifying areas that contain essential habitat features (primary
constituent elements) regardless of whether or not they are currently
occupied by the listed species, thus alerting the public to the
importance of an area in the conservation of a listed species. Critical
habitat also identifies areas that may require special management or
protection. Critical habitat receives protection under section 7 of the
Act with regard to actions carried out, funded, or authorized by
Federal agencies. Section 7 requires that Federal agencies consult on
actions that may affect critical habitat to ensure that their actions
are not likely to destroy or adversely modify critical habitat. This
additional protection to a species' habitat may actually shorten the
time needed to achieve recovery. Aside from this added protection
provided by section 7, the Act does not provide other direct forms of
protection to lands designated as critical habitat.
Designating critical habitat does not create a management plan,
establish numerical population goals, prescribe specific management
actions (inside or out of critical habitat), nor does it have a direct
effect on areas not designated as critical habitat. Specific management
recommendations for critical habitat are more appropriately addressed
in recovery plans, management plans, and section 7 consultations.
Critical habitat identifies specific areas essential to the
conservation of a species. Areas with one or more essential features
but not currently containing all of the features and areas having the
capability to provide essential features in the future, may be required
for the long-term recovery of the species. This may be so particularly
in certain portions of its range. However, not all areas containing all
features of a listed species' habitat are necessarily essential to the
species' recovery. Areas not included in critical habitat that contain
one or more of the essential elements are still important to a species'
conservation and may be addressed under other facets of the Act and
other conservation laws and regulations. All designated areas also may
be of considerable value in maintaining ecosystem integrity and
supporting other species.
Designation of critical habitat may be reevaluated and revised, at
any time, when new information indicates that changes are warranted.
The Service may revise critical habitat if management plans, recovery
plans, or other conservation strategies are developed and fully
implemented, reducing the need for the additional protection provided
by critical habitat designation. For example, after the draft Delta
Native Fishes Recovery Plan (Recovery Plan) is finalized or the State
promulgates more protective water quality standards for the Estuary
than are currently in place, land and water management agencies may
provide increased protection for the delta smelt. If these protection
measures are implemented, the Service may revise its critical habitat
designation.
Primary Constituent Elements
In determining which areas to designate as critical habitat, the
Service considers those physical and biological features that are
essential to a species' conservation (50 CFR 424.12(b)). The Service is
required to list the known primary constituent elements together with a
description of any critical habitat that is proposed. Such physical and
biological features (i.e., primary constituent elements) include, but
are not limited to, the following:
(1) Space for individual and population growth, and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing of offspring,
germination, or seed dispersal; and
(5) Generally, habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
The primary constituent elements essential to the conservation of
the delta smelt are physical habitat, water, river flow, and salinity
concentrations required to maintain delta smelt habitat for spawning,
larval and juvenile transport, rearing, and adult migration.
The primary constituent elements are organized by habitat
conditions required for each life stage. The specific geographic areas
and seasons identified for each habitat condition represent the maximum
possible range of each of these conditions. Depending on the water-year
type (i.e., wet, above normal, normal, below normal, dry, critically
dry), each of the habitat conditions specified below requires
fluctuation (within-year and between-year) in the placement of the 2
ppt isohaline (a line drawn to connect all points of equal salinity)
around three historical reference points. These three historical
reference points are the Sacramento-San Joaquin River confluence, the
upstream limit of Suisun Bay at Chipps Island, and in the middle of
Suisun Bay at Roe Island. The actual number of days that the 2 ppt
isohaline is maintained at the three points varies according to water-
year type.
In addition, to maintain habitat conditions necessary to achieve
recovery of the delta smelt, the number of days at each reference point
must simulate a level of water project development equivalent to that
which historically existed in 1968. A 1968 level of development
represents a period of time before Delta outflow was affected by the
SWP and the delta smelt was abundant. This year (1968) falls within the
time period identified by the Delta Native Fishes Recovery Team as
having had appropriate hydrologic conditions that would allow recovery
of the delta smelt. Additionally, on June 15, 1994, the Regional
Director signed an Interagency Statement of Principles among the
Service, NMFS, and EPA (Plenert, Fullerton, and Seraydarian, in litt.
1994) stating, in part, despite the effects of the water projects that
were operating at that time, the Estuary ecosystem and its anadromous
and resident fisheries were relatively healthy during the years between
1960 and 1970.
Further, to maintain suitable habitat conditions for recovery of
the delta smelt, the naturally-occurring variability found in healthy
estuarine ecosystems must be preserved for the following reasons--(1)
temporal and spatial variability of the 2 ppt isohaline will be the
most effective deterrent to further invasion of newly introduced
species and continued competition by those that are already
established, (2) placement of the 2 ppt isohaline in Suisun Bay will
produce the high phytoplankton and zooplankton densities that
characterize most healthy estuarine ecosystems, and (3) variability is
needed to simulate natural processes and historical conditions.
The primary constituent elements for the delta smelt are:
Spawning Habitat--Delta smelt adults seek shallow, fresh or
slightly brackish backwater sloughs and edgewaters for spawning. To
ensure egg hatching and larval viability, spawning areas also must
provide suitable water quality (i.e., low concentrations of pollutants)
and substrates for egg attachment (e.g., submerged tree roots and
branches and emergent vegetation). Specific areas that have been
identified as important delta smelt spawning habitat include Barker,
Lindsey, Cache, Prospect, Georgiana, Beaver, Hog, and Sycamore sloughs
and the Sacramento River in the Delta, and tributaries of northern
Suisun Bay. The spawning season varies from year to year and may start
as early as December and extend until July.
Larval and Juvenile Transport--To ensure that delta smelt larvae
are transported from the area where they are hatched to shallow,
productive rearing or nursery habitat, the Sacramento and San Joaquin
Rivers and their tributary channels must be protected from physical
disturbance (e.g., sand and gravel mining, diking, dredging, and levee
or bank protection and maintenance) and flow disruption (e.g., water
diversions that result in entrainment and in-channel barriers or tidal
gates). Adequate river flow is necessary to transport larvae from
upstream spawning areas to rearing habitat in Suisun Bay. Additionally,
river flow must be adequate to prevent interception of larval transport
by the State and Federal water projects and smaller agricultural
diversions in the Delta. To ensure that suitable rearing habitat is
available in Suisun Bay, the 2 ppt isohaline must be located westward
of the Sacramento-San Joaquin River confluence during the period when
larvae or juveniles are being transported, according to the historical
salinity conditions which vary according to water-year type. Reverse
flows that maintain larvae upstream in deep-channel regions of low
productivity and expose them to entrainment interfere with these
transport requirements. Suitable water quality must be provided so that
maturation is not impaired by pollutant concentrations. The specific
geographic area important for larval transport is confined to waters
contained within the legal boundary of the Delta, Suisun Bay, and
Montezuma Slough and its tributaries. The specific season when habitat
conditions identified above are important for successful larval
transport varies from year to year, depending on when peak spawning
occurs and on the water-year type. The Service identified situations in
the biological opinion for the delta smelt (1994) where additional
flows might be required in the July-August period to protect delta
smelt that were present in the south and central Delta from being
entrained in the State and Federal project pumps, and to avoid jeopardy
to the species. The long-term biological opinion on CVP-SWP operations
will identify situations where additional flows may be required after
the February through June period identified by EPA for its water
quality standards to protect delta smelt in the south and central
Delta.
Rearing Habitat--Maintenance of the 2 ppt isohaline according to
the historical salinity conditions described above and suitable water
quality (low concentrations of pollutants) within the Estuary is
necessary to provide delta smelt larvae and juveniles a shallow,
protective, food-rich environment in which to mature to adulthood. This
placement of the 2 ppt isohaline also serves to protect larval,
juvenile, and adult delta smelt from entrainment in the State and
Federal water projects. An area extending eastward from Carquinez
Strait, including Suisun Bay, Grizzly Bay, Honker Bay, Montezuma Slough
and its tributary sloughs, up the Sacramento River to its confluence
with Three Mile Slough, and south along the San Joaquin River including
Big Break, defines the specific geographic area critical to the
maintenance of suitable rearing habitat. Three Mile Slough represents
the approximate location of the most upstream extent of tidal excursion
when the historical salinity conditions described above are
implemented. Protection of rearing habitat conditions may be required
from the beginning of February through the summer.
Adult Migration--Adult delta smelt must be provided unrestricted
access to suitable spawning habitat in a period that may extend from
December to July. Adequate flow and suitable water quality may need to
be maintained to attract migrating adults in the Sacramento and San
Joaquin River channels and their associated tributaries, including
Cache and Montezuma sloughs and their tributaries. These areas also
should be protected from physical disturbance and flow disruption
during migratory periods.
To conserve the delta smelt, this final rule designates critical
habitat in an area encompassing the specific habitat conditions
required by each life stage identified above. Accordingly, critical
habitat is designated in the following geographic area--areas of all
water and all submerged lands below ordinary high water and the entire
water column bounded by and contained in Suisun Bay (including the
contiguous Grizzly and Honker Bays); the length of Goodyear, Suisun,
Cutoff, First Mallard (Spring Branch), and Montezuma sloughs; and the
existing contiguous waters contained within the Delta. Thus, critical
habitat for the delta smelt is contained within Contra Costa,
Sacramento, San Joaquin, Solano, and Yolo Counties, California. The
``Regulation Promulgation'' section provides a precise metes and bounds
description of critical habitat designated for the delta smelt.
Effects of Critical Habitat Designation
Section 4(b)(8) of the Act requires for any proposed or final
regulation that designates critical habitat a brief description and
evaluation of those activities (public or private) that may adversely
modify such habitat or may be affected by such designation. At the time
of preparation of the revised proposed rule, the Service identified the
following list of proposed or ongoing actions whose effects likely
would jeopardize the delta smelt and adversely modify or destroy its
critical habitat--Central Valley Project operations, State Water
Project operations, deep water navigation channel dredging, reoperation
of Folsom Dam, Oroville Dam, and Auburn Dam, Central Valley and State
Water Project Wheeling Purchase Agreement, San Joaquin Valley Drainage
Program, Central Valley Project water contract renewals, petition by
the Bureau for a change in diversion point, South Delta Water
Management, South Delta Temporary Barriers Project, Stanislaus-
Calaveras River Basin Water Use Program, Phases 3 and 4 of the Suisun
Marsh Project, North Delta Water Management Project, West Delta Water
Management Project, Delta Wetlands Water Storage Project, Los Banos
Grandes Reservoir, Los Vaqueros Reservoir, Kern Water Bank, full
operation of four State Water Project pumps, entrainment of fish and
thermal pollution by industry (e.g., power generation facilities),
urban or agricultural nonpoint contaminant discharges, in-Delta and
Suisun Marsh water diversion, Phase 2 of the Coastal Aqueduct, and the
Delta Levee Subvention Program. Since publication of the revised
proposed rule, the Service has determined through section 7
consultations that the South Delta Temporary Barriers Project, deep
water navigation channel dredging, Los Vaqueros Reservoir Project, and
Phase 2 of the Coastal Aqueduct Project will not jeopardize the delta
smelt.
The proposed rule to revise the critical habitat designation did
not identify any proposed actions that might jeopardize the delta smelt
without adversely affecting critical habitat. In the revised proposed
rule, the Service did identify (based on section 7 consultation
experiences) five activities that, depending on the season of
construction and scale of the project, might result in the destruction
or adverse modification of critical habitat without necessarily
jeopardizing the continued existence of the delta smelt. These
activities were:
(1) Sand and gravel extraction in river channels or marshes;
(2) Diking wetlands for conversion to farmland and dredging to
maintain these dikes;
(3) Levee maintenance and bank-protection activities, such as
riprapping, removal of vegetation, and placement of dredged materials
on levees of banks;
(4) Operation of the Montezuma Slough Control Structure; and
(5) Bridge and marina construction.
Construction and implementation of each of these five actions
requires authorization by the Army Corps of Engineers (Corps) pursuant
to section 10 of the Rivers and Harbors Act of 1899 and section 404 of
the CWA and therefore are considered Federal actions. In a section 7
consultation with the Bureau and the California Department of Fish and
Game, California Department of Water Resources (DWR), the Service
reviewed the operation of the Montezuma Slough Control Structure for
effects on delta smelt. As a result, DWR and the Bureau sponsored an
investigation of the effects of the operation of the Structure on delta
smelt, and DWR committed to operate the gates only as required to meet
existing Suisun Marsh salinity standards. When not operating, the gates
on the Structure will remain in the raised position. The effect of gate
operation on delta smelt is currently being studied, and the Service
will make a determination on the Structure's operations in the near
future. As to the other actions, the Service will consult with the
Corps as these actions arise.
On February 4, 1994, subsequent to the publication of the January
6, 1994, revised proposed rule to designate critical habitat, the
Service transmitted to the Bureau a jeopardy biological opinion on the
combined operation of the Federal and State Water Projects on the delta
smelt through February 1995. In the 1994 biological opinion, the
Service determined that the proposed operation of the Federal and State
Water Projects likely would jeopardize the continued existence of the
delta smelt and would destroy or adversely modify proposed critical
habitat. This one-year opinion did not recommend a reasonable and
prudent alternative that distinguished between the number of days of
compliance with the 2 ppt criteria to avoid jeopardy and the number of
days of compliance that would have been required to avoid destruction
or adverse modification of proposed critical habitat. The Service
acknowledges that such a distinction may be appropriate in future
biological opinions.
Any possible revisions to the biological opinion will recognize
three major initiatives that will shape the dynamics of future
estuarine conditions for delta smelt. First, in accordance with a
Framework Agreement (1994) between the Governor's Water Policy Council
of the State of California (Council) and Club Fed, the State Board will
seek agreement with DWR and the U.S. Department of the Interior to
operate the SWP and CVP to make an equitable contribution to meeting
the revised water quality standards beginning calendar year 1995. The
Board will seek this agreement while they are working on a water rights
decision to allocate responsibility among water rights holders in the
Bay-Delta watershed. Second, section 7(a)(1) of the Act imposes an
affirmative obligation on Federal agencies to carry out programs for
the conservation (recovery) of listed species. With the forthcoming
issuance of a Delta Native Fishes Recovery Plan, currently in
preparation, the Service expects that local, State, and Federal
agencies will fulfill their responsibilities by assisting in the
completion of tasks and objectives in the plan. Third, and related to
number two, the scheduled renewal of water contracts (i.e., reopened or
expired Federal Energy Regulatory Commission (FERC) licenses, expired
CVP water contracts) will provide an additional opportunity under
sections 7(a)(1) and 7(a)(2) of the Act to implement Recovery Plan
objectives and meet EPA's water quality standards. Collectively, these
initiatives likely will result in a phased improvement to water quality
based habitat requirements for the delta smelt. Accordingly, the
Service anticipates that adverse modification or destruction of
critical habitat will be avoided by operation of the CVP, SWP, and
other water management facilities with implementation of the above
described initiatives.
Consideration of Economic and Other Factors
Section 4(b)(2) of the Act requires the Service to consider
economic and other relevant impacts of specifying any particular area
to be included within the critical habitat boundary. EPA, in
coordination with the Service, included an analysis of the effects of
designation of critical habitat for the delta smelt in its draft
Regulatory Impact Assessment (RIA) for its proposed water quality
standards. A summary of that analysis was provided in the revised
proposed rule designating critical habitat for the delta smelt (59 FR
852).
The Service stated in the revised proposed rule that if the final
economic analysis substantially differed from the draft analysis
summarized in the revised proposed rule, a revised analysis would be
made available for public comment. No opportunity for public comment
was afforded because the results of the final economic analysis do not
substantially differ from the results of the draft analysis.
EPA's economic analysis assumes that the economic impact of
restricting activities associated with construction and implementation
of major water projects would be attributable to the jeopardy standard
imposed by listing the delta smelt as a threatened species, as opposed
to designation of critical habitat. Specifically, the impacts of
designating critical habitat are in addition to the economic and other
impacts attributable to (1) listing of the species, (2) economic
effects resulting from conservation actions taken by other Federal
agencies under section 7(a)(1) of the Act, and (3) regulatory actions
required by other laws.
Section 9 of the Act and Service regulations prohibit the taking of
delta smelt without express authorization from the Service. Under
Service regulations, ``take'' may include significant habitat
modification or degradation that actually kills or injures protected
species. In addition, Federal agencies must consult with the Service to
ensure that their actions are not likely to jeopardize the continued
existence of the listed species. An action could jeopardize the
existence of a listed species if it destroys or modifies its habitat.
This is so regardless of whether that habitat has been designated as
critical habitat. Therefore, the direct economic and other impacts
resulting from designation of critical habitat are relatively small
because the Act provides substantial protection to habitat through
listing of the species itself. In general, designation of critical
habitat supplements the protection afforded a listed species.
The RIA concluded that economic costs attributable to the
designation of critical habitat for the delta smelt would be relatively
small. In the revised proposed rule, the Service determined that
economic costs would be attributable to five actions (i.e., sand and
gravel extraction, diking wetlands, levee maintenance and bank
protection activities, operation of the Montezuma Slough Control
Structure, and bridge and marine construction). In the final RIA
prepared by EPA (EPA 1994), the economic costs attributable to
designation were from the same five actions.
Economic Impacts Attributable Directly to Critical Habitat Designation
A synopsis of the economic impacts associated with the five
activities identified by the Service includes:
Sand and Gravel Operations--Four aggregate operators in the delta
may be affected by the designation of critical habitat. Two of the
aggregate operations in the Delta are located in San Joaquin County,
which has a total of eleven aggregate sites. The estimated value of
aggregate production for San Joaquin County in 1986 was $13 million.
The four aggregate operations in the Delta that could be affected by
the regulation produced a small percentage of California's aggregate in
1992, which had a total value of $473 million. The economic impacts on
the aggregate production industry resulting from the designation of
critical habitat likely will be minor, given the relatively small
amount of sand and gravel production occurring in the Delta.
In many cases, minor changes to the timing of extraction to avoid
sensitive biological periods will minimize the economic effects on
mining activities. Mitigation in the form of habitat replacement might
be required for operations that may result in the destruction or
adverse modification of critical habitat. Costs to restore 1 acre of
wetlands range between $10,000 to $50,000. Mitigation costs could be
reduced if low-cost lands were acquired, and levees were breached to
flood areas. For some tracts of land, the costs associated with
restoring wetlands may exceed the value derived from the agricultural
activity, in which case the cost attributable to critical habitat would
be the loss in agricultural income.
Diking and Dredging for Agricultural Operations--Though designation
of critical habitat for the delta smelt may require implementation of
best management practices and a 3:1 ratio of permanently destroyed
habitat in proposed project areas, the economic impacts of restricting
diking and dredging operations are expected to be minimal. For example,
the regulatory costs (i.e., with critical habitat designated)
associated with converting the Little Holland Tract in the Delta to
agricultural uses with critical habitat designated would be the cost to
replace 440 acres of habitat at a 3:1 ratio (EPA 1994). The expense of
replacing habitat would likely exceed the economic returns from
agricultural production on this tract, which was historically planted
for corn. Foregone income from future agricultural production on the
1,300 arable acre tract would amount to $65,000 per year.
Levee Maintenance--Between 1981-1991, local agencies maintained
536.6 miles of levee in the Delta, spending an average of $1.24 million
per mile (EPA 1994). Approximately 41% of the costs were financed
through State subventions. The costs of levee maintenance are not
expected to increase significantly due to this critical habitat
designation because Federal regulatory agencies currently have timing
and construction restrictions that generally avoid adverse effects to
the delta smelt.
Montezuma Slough Control Structure Operations--The economic impacts
associated with the operation of the Montezuma Slough Control Structure
could not be estimated by the time this final rule was published. In
response to a biological opinion issued by the USFWS to DWR and the
Bureau on the Structure's operation, an investigation of the effects of
the Structure on delta smelt is being conducted, and will be completed
in the near future. The Structure's operations may be modified once the
study is completed. The gates at this structure are currently operated
from November to March in accordance with current State salinity
standards to maintain low-salinity water in Suisun Marsh, but remain
open the remainder of the year.
Bridge and Marina Construction--The use of best management
practices, time restrictions, and other construction restrictions
similar to those for levee maintenance and sand and gravel operations
should preclude any substantial impact from designation of delta smelt
critical habitat on bridge and marina construction.
Water Costs Attributed to EPA's Salinity Standards
EPA's economic analysis evaluated the costs associated with
implementing its water quality standards for the Bay/Delta. Since the
Service identifies water quality (salinity) as a primary constituent
element essential to conserve the delta smelt, an analysis of the water
costs associated with implementing the salinity standards is included
in this final rule. Though the water costs associated with the water
quality standards are attributable to EPA, the Service includes this
discussion to make clear the approximate cost of implementing the
salinity standards alone.
The water costs associated with the salinity standards and fish
migration standards are reported in EPA's final RIA (EPA 1994). EPA
reports the water costs as the sum of costs associated with the
salinity standards and fish migration standards. However, depending on
hydrologic conditions, approximately 35% to 73% of the water costs in
the EPA economic analysis can be attributed to the salinity criteria
alone, apart from the fish migration criteria (EPA 1994).
The overall estimated water supply impacts of both the salinity and
fish migration water quality standards (change in total exports) over
those associated with existing D-1485 State salinity standards and
water quality requirements for winter-run chinook salmon under a NMFS
biological opinion are 376 thousand acre-feet (taf) per year on
average, and 577 taf during critically dry periods. However, the
State's implementation plan for EPA's water quality standards will
substantially affect the magnitude and distribution of the costs
associated with implementing the water quality standards. A more
detailed discussion of the water costs associated with different
implementation scenarios appears in the final RIA (EPA 1994).
National Economic Costs
Actions taken to preserve and recover threatened and endangered
species may result in the re-allocation of resources within the
regional and national economy. National economic costs, best described
as efficiency costs, include changes in the consumer and producer
surplus, and related employment impacts. These measures capture the net
social gains and losses resulting from the resource allocation.
The national economic cost of the five activities evaluated above
(sand and gravel extraction, diking wetlands, levee maintenance and
bank protection activities, operation of the Montezuma Slough Control
Structure, and bridge and marina construction) is minimal since the
overall economic cost of those activities in the region is minimal.
EPA's economic analysis used the above described measures to
estimate the costs and benefits of the water quality standards.
Therefore, the results of EPA's economic analysis is identical to an
analysis done for national economic costs.
Benefits of Critical Habitat Designation
Conservation of the delta smelt with designation of its critical
habitat will result in a wide range of benefits. Section 2(a)(3) of the
Act recognizes that fish, wildlife, and plants are of aesthetic,
ecological, educational, historical, recreational, and scientific value
to the Nation and its people. EPA (1994) categorizes the benefits of
promulgating water quality standards and designating critical habitat
as use, nonuse, and other benefits. A more detailed description of
these uses are contained in the final RIA (EPA 1994).
Several use and nonuse benefits can be attributed to designating
critical habitat for the delta smelt, apart from benefits attributable
to EPA's water quality standards. Generally, the designation of
critical habitat will prevent the further decline of estuarine health.
Benefits include:
(1) Reduced need in the future to list fish and wildlife species
currently in decline;
(2) Increased biological production of commercially important
species, such as waterfowl and salmon;
(3) Increased protection to a wide variety of estuarine species,
several of which are unique to the Estuary (e.g., winter-run chinook
salmon, Estuary population of longfin smelt, and Sacramento splittail);
(4) Curtailed establishment of newly introduced exotic species and
deterred explosion of the current population of already established
exotic species;
(5) Increased recreational fishing and hunting opportunities;
(6) Increased opportunities for wildlife observation resulting from
restoration of riparian and tidal marsh habitat and ecosystem health;
and
(7) Improved commercial fishery harvest as a result of increased
populations of fish.
EPA (1994) assigned a monetary value to several of the use
benefits. The economic benefits of EPA's standards are broader than
protection of the delta smelt, since EPA's standards are expected to
positively affect all components of the food web. The total economic
benefit of EPA's water quality standards and the designation of
critical habitat for the delta smelt are reported as follows. The
ecological benefits of improved estuarine conditions are expected to
generate at least $2.1 million or more in net economic benefits to
commercial and recreational fisheries (particular salmon fisheries),
and will have an associated employment gain of approximately 145 full-
time equivalent jobs (EPA 1994). Benefits to the ocean sport fishery
for salmon is estimated at about $708,000 annually (EPA 1994). This
increase would result in positive employment effects on sport fishing-
related industry, adding approximately 70 jobs in this area. Annual
benefits to the striped bass sport fishing industry is estimated to be
$57,500 annually (EPA 1994).
An important avoided cost is associated with further declines in
the recreational and commercial fisheries industry of the Bay/Delta,
which is valued at $200 million annually (EPA 1994). Other avoided
costs include government costs associated with crop deficiency
payments, agricultural drainage costs, and costs associated with the
potential reduction in property value.
Summary of the Exclusion Process
In order to determine the specific extent of designation of
critical habitat pursuant to section 4(b)(2) of the Act, the Service
must analyze:
(1) The benefits of excluding an area as critical habitat,
(2) The benefits of including an area, and
(3) The effects of exclusions on the probability of species
extinction.
This process consists of (1) estimating the benefits of retaining
or excluding land and water areas contained within Suisun Bay or river
reaches within the Delta and Montezuma, Goodyear, Suisun, Cutoff, and
First Mallard (Spring Branch) sloughs; (2) weighing those benefits; and
(3) determining if exclusion of an area or areas from critical habitat
will lead to the extinction of the species. If the exclusion of an area
or areas from critical habitat will result in eventual species
extinction, then the exclusion would be prohibited under the Act.
Extinction
Critical habitat consists of areas with habitat characteristics
that are essential to the conservation of a listed species. However,
the exclusion process focuses upon a threshold for species extinction.
Conservation (recovery) and extinction are separate standards. Recovery
and extinction are at opposite ends of a continuum, with the likelihood
of a species' continued survival increasing the closer the species is
to the recovery end of the continuum. It may be more difficult to
predict the point at which extinction would be inevitable than to
determine where recovery may occur.
The analysis to determine whether extinction will occur will be
different for each species, depending on many variables, including a
species' geographic range. The exclusion analysis also may be related
to a number of factors, such as the number of individuals, amount of
habitat, condition of the habitat, and reproductive success. Extinction
of an annual species, like the delta smelt, most likely would occur
when rearing habitat conditions are poor enough for two consecutive
years that some minimum number of fish fail to survive to reproduce.
Habitat conditions could become poor enough if pumping at Federal and
State water project facilities and private diversions significantly
reduce outflow from the Delta. If a sufficient number of delta smelt
were entrained in Federal and State water project facilities and
private diversions so that a minimal number survived to reproduce, the
population could decline. Extinction could result. The focus of the
exclusionary analysis was on those factors that pertain to these issues
and included consideration of habitat condition, functioning of the
Estuary ecosystem, and proximity of the delta smelt population to the
Federal and State pumps during various life stages.
Criteria and Decision
In evaluating the designation of critical habitat to determine
whether or not to exclude areas because of concerns over economic
effects, the Service used the following process:
(1) Based upon the criteria described in this document, the
geographical area essential to the conservation of the species was
identified; and
(2) An economic analysis was conducted to ascertain the anticipated
economic consequences of designating areas as critical habitat, using
agricultural and urban sectors as the primary level of economic
analysis.
(3) The Service balanced the costs and other impacts of designation
with the benefits of designation.
Exclusion
Using the above described process, the Service has determined that
no exclusions to critical habitat are appropriate. The entire
geographic area designated as critical habitat is essential to conserve
the delta smelt. Delta smelt are restricted to a limited geographic
area, and retaining land and water areas contained within Suisun Bay
and river reaches within the Delta and Montezuma, Goodyear, Suisun,
Cutoff, and First Mallard (Spring Branch) sloughs is necessary to
recover this annual species. These areas provide habitat necessary for
each life stage of the species.
The economic consequences of designating the entire area as
critical habitat are relatively small. Most economic costs can be
avoided by project proponents by using timing and construction
restrictions, and by using best management practices. Designation of
critical habitat will reduce the need in the future to list fish and
wildlife species currently in decline, and will improve the overall
health of the Estuary. The benefits of designating the entire area
outweigh the benefits of excluding any of the area from the
designation.
Available Conservation Measures
The purpose of the Act, as stated in section 2(b), is to provide a
means to conserve the ecosystems upon which endangered and threatened
species depend and to provide a program for the conservation of listed
species. Section 2(c)(1) of the Act declares that ''* * * all Federal
departments and agencies shall seek to conserve endangered and
threatened species and shall utilize their authorities in furtherance
of the purposes of this Act.
The Act mandates the conservation of listed species through
different mechanisms, such as: Section 7 (requiring Federal agencies to
further the purposes of the Act by carrying out conservation programs
and insuring that Federal actions will not likely jeopardize the
continued existence of the listed species or result in the destruction
or adverse modification of critical habitat); section 9 (wildlife
research permits and habitat conservation planning on non-Federal
lands); section 6 (cooperative State and Federal grants), land
acquisition, and research. Other Federal laws also require conservation
of endangered and threatened species, such as the National Forest
Management Act and the National Environmental Policy Act, and various
other State and Federal laws and regulations.
Critical habitat is not intended as a management or conservation
plan. Critical habitat is primarily intended to identify the habitat
that meets the criteria for the primary constituent elements. However,
there are benefits that result from the designation. Designation will
help retain recovery options and reduce the near-term risk until a
long-term conservation plan is implemented.
Designation of critical habitat does not offer specific direction
for managing delta smelt habitat. That type of direction, as well as
any change in direction, will come through the administration of other
facets of the Act (e.g., section 7, section 10 HCP process, and
recovery planning).
Recovery Planning
Recovery planning under section 4(f) of the Act is the
``umbrella''that eventually guides all the Act's activities and
promotes a species' conservation and eventual delisting. Recovery plans
provide guidance, which may include population goals and identification
of areas in need of protection or special management. Recovery plans
usually include management recommendations for areas proposed or
designated as critical habitat.
The delta smelt and six other fish species that depend on the
Estuary for a significant segment of their life history are included in
the Sacramento-San Joaquin Delta Native Fishes Recovery Plan. The
recovery plan is currently in draft form. The recovery plan will
include recovery criteria based on population abundance and geographic
distribution. Designation of critical habitat, along with the
biological opinion evaluating the effects of the Federal and State
water projects on the delta smelt, is consistent with the plan's
objective to recover these fish species.
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to destroy
or adversely modify critical habitat. This Federal responsibility
accompanies, and is in addition to, the requirement in section 7(a)(2)
of the Act that Federal agencies ensure that their actions do not
jeopardize the continued existence of any listed species.
Jeopardy is defined at 50 CFR 402.02 as any action that would be
expected to appreciably reduce the likelihood of both the survival and
recovery of a species. Destruction or adverse modification of critical
habitat defined at 50 CFR 402.02 as a direct or indirect alteration
that appreciably diminishes the value of critical habitat for both the
survival and recovery of a listed species. The regulations also clearly
state that such alterations include, but are not limited to,
alterations adversely modifying any of those physical or biological
features that were the basis for determining the habitat to be
critical.
Survival and recovery, mentioned in both the definition of adverse
modification and jeopardy, are directly related. Survival may be viewed
as a linear continuum between recovery and extinction of the species.
The closer one is to recovery, the greater the certainty in the species
continued survival. The terms ``survival and recovery'' are, thus,
related by the degree of certainty that the species will persist over a
given period of time. Survival relates to viability. Factors that
influence a species' viability include population numbers, distribution
throughout the range, stochasticity, expected duration, and
reproductive success. A species may be considered recovered when there
is a high degree of certainty for the species' continued viability.
The Act's definition of critical habitat indicates that the purpose
of critical habitat is to contribute to a species' conservation, which
by definition equates to recovery. Section 7 prohibitions against the
destruction or adverse modification of critical habitat apply to
actions that would impair survival and recovery of a listed species,
thus providing a regulatory means of ensuring that Federal actions
within critical habitat are considered in relation to the goals and
recommendations of a recovery plan. As a result of the link between
critical habitat and recovery, the prohibition against destruction or
adverse modification of the critical habitat should provide for the
protection of the critical habitat's ability to contribute to a
species' recovery.
Federal actions that may affect the delta smelt or its critical
habitat include those authorized, carried out, or funded by the Corps,
Department of the Navy, the Bureau, NMFS, FERC, the Service, and EPA.
The Corps funds projects and issues permits for water pumping and
diversion facilities, levee construction or repair, bank protection
activities, deep-water navigation channel dredging and dredge spoil
disposal projects, sand and gravel extraction, marina and bridge
construction, diking of wetlands for conversion to farmland, and tidal
gate or barrier installation. The Corps also develops permits pursuant
to section 404 of the CWA to the Department of the Navy so the Navy may
dredge deep-water ship channels and dispose of dredge materials in
Suisun Bay, San Pablo Bay, and San Francisco Bay. The Corps also
conducts such activities for the Navy.
The Bureau and DWR construct, operate, and manage water export
facilities. EPA reviews State water quality standards and promulgates
replacement standards, pursuant to the CWA, if the State standards are
found to be inadequate. FERC licenses water storage facilities on
tributaries to the Sacramento-San Joaquin Delta. In 1991, EPA
disapproved portions of the State Board's Water Quality Control Plan
for Salinity for the Estuary. Accordingly, EPA has prepared proposed
and finalized replacement standards for those portions of the State's
salinity standards that were disapproved. Measures to protect the
federally listed winter-run chinook salmon, for which NMFS has
jurisdiction under the Act, also may affect the delta smelt and may
require consultation with the Service.
The Service and the Bureau are jointly responsible for implementing
the Central Valley Project Improvement Act (CVPIA). Activities under
the CVPIA include, but are not limited to, management of a portion of
the CVP water supply dedicated for fish and wildlife protection,
restoration, and enhancement, acquisition of additional water supplies
for the same purposes, and screening unscreened diversions in the
Sacramento-San Joaquin watershed. Both the Bureau and Service
activities under the CVPIA may affect delta smelt or its critical
habitat, requiring consultation with the Service.
Under section 4 of the Act, listing of the delta smelt provided a
requirement for the development of a recovery plan. The Service
convened the Delta Native Fishes Recovery Team to prepare a Recovery
Plan for declining native fishes in the Estuary. The Recovery Plan,
currently in draft form, will develop a framework for Federal, State,
and private entities to coordinate activities and cooperate with each
other in conservation efforts. The plan will set recovery priorities
and estimate the costs of various tasks necessary to accomplish
recovery goals. Site-specific management actions necessary to achieve
survival and recovery of the delta smelt and other fishes native to the
Estuary ecosystem also will be described in this plan.
Summary of Comments and Recommendations
Designation of critical habitat for the delta smelt was first
proposed on October 3, 1991 (56 FR 50075), as part of the proposed rule
to list the species. During the 4-month comment period following
publication of the proposal, the Service received 360 written and oral
comments from 348 individuals. Of the forty-four people who commented
specifically on critical habitat, thirty-four opposed and ten supported
the designation.
On March 16, 1993 (58 FR 14199), the Service published a notice
that the public comment period on the original proposed critical
habitat designation for the delta smelt was reopened until April 30,
1993, to allow the Service to consider any information that previously
had not been submitted. In response, the Service received seven
letters--two in support of critical habitat designation as proposed,
four in opposition, and a letter from EPA requesting that the Service
consider the biological and hydrological information described in EPA's
draft proposed rule to promulgate Bay/Delta water quality standards.
On January 6, 1994 (59 FR 852), the Service revised the
geographical area and refined the primary constituent elements
described in the original critical habitat proposal. The public comment
period for the revised proposed critical habitat designation was open
from January 6, 1994, to March 7, 1994, and later extended to March 11,
1994 (59 FR 3829). During the 65-day comment period, the Service
received written comments from forty-three parties on both the critical
habitat designation and EPA's proposed water quality standards for the
Bay/Delta. Thirty-two commenters were opposed to critical habitat
designation, nine supported the decision, and two expressed no
preference. Several commenters either referenced or supported the
comments of the California Urban Water Agencies (CUWA).
Four joint public hearings were held to solicit comments on the
revised proposed critical habitat designation, the proposed threatened
status for the Sacramento splittail, and the proposed water quality
standards developed by EPA. A total of 125 people presented oral
testimony and submitted written comments at the hearings, primarily on
delta smelt critical habitat and Bay/Delta water quality standard
issues. The Service received comments from elected officials,
interested persons, municipal and agricultural water districts and
associations, environmental organizations, business and industry owners
and managers, fishing enthusiasts, farmers, agricultural commissions
and dairy interests, biologists, county and municipal officials, power
agency representatives, hospital and school district representatives,
and building industry spokespeople.
At the February 23, 1994, hearing in Fresno, thirty-eight people
presented oral testimony--thirty-six people opposed and two supported
critical habitat designation. Nineteen people testified at the February
24, 1994, Sacramento meeting--fifteen people were opposed to the
designation, three were in support, and one person was neutral.
Twelve people testified at the February 25, 1994, hearing in San
Francisco--nine people supported and three opposed the critical habitat
designation. At the February 28, 1994, hearing in Irvine, fifty-six
people presented oral and written comments (fifty-one people testified
and five submitted only written comments)--fifty of the fifty-six
commenters opposed critical habitat, five were neutral, and one
supported the designation.
Comments addressing the issue of available scientific information
used to revise the proposed rule were addressed in the revised proposed
rule of January 6, 1994 (59 FR 852). The Service addressed EPA's
comments, as well as comments provided by the State. All other comments
are addressed below in this final rule. Because EPA can better respond
to comments regarding the economic analysis and the assumptions used to
develop its Bay/Delta water quality standards, the Service refers to
EPA's ``Response to Comments'' document for responses to comments
specific to those issues. However, the Service will respond to any
comments regarding the relationship between EPA's water quality
standards and the biological requirements of the delta smelt in this
section, and to comments regarding the economic analysis as it is
associated with the critical habitat designation.
Comments are part of the administrative record and are available
for public review. Written comments and oral statements presented at
the public hearings and received during the comment periods are covered
in the following summary. Comments of a similar nature or point are
grouped into a number of general issues. These issues, and the
Service's response to each, are discussed below.
Estuarine Standard Issues
Comment 1: One commenter thought the Service should not adopt EPA's
Bay/Delta water quality standards as part of the designation of
critical habitat for the delta smelt. The commenter asserted that
because the Service had not described the biological relevance of the
standards, adopting the standards would be ``throwing water at the
problem''. Another commenter thought EPA's criteria were developed to
serve non-habitat purposes, reasoning that their purpose was to remove
organisms from risk of mortality at the pumps. Another commenter
thought flow, rather than salinity or the location of the entrapment
zone, was a more appropriate parameter to protect the western Delta and
Suisun Marsh. A commenter at the public hearings believed the Service
should not have selected such a strict standard of salinity (2 ppt) for
the delta smelt's critical habitat.
Service Response: The Service does not adopt EPA's water quality
standards in the designation of critical habitat for the delta smelt.
The Service identifies water quality (salinity) as a primary
constituent element to protect and recover the delta smelt. This point
is described in detail in comment 27, below, and is clarified in the
section entitled ``Primary Constituent Elements'' in this final rule.
The Service has considered and discussed the biological relevance
of EPA's water quality standards. The biological relevance of providing
ample estuarine habitat for the delta smelt was first discussed in the
original proposed designation of critical habitat for the delta smelt
in 1991. The biological significance of salinity in the Estuary was
again discussed in the sections entitled ``Revisions to the October 3,
1991, Critical Habitat Proposal'', ``Habitat Requirements'', and
``Primary Constituent Elements'' in the January 6, 1994, revised
proposed designation of critical habitat. These sections discuss the
habitat requirements of the delta smelt, the need for temporal and
spatial variability of low-salinity waters in the Estuary, and the
identification of primary constituent elements essential for the
recovery of the smelt.
As the above cited discussions illustrate, EPA's water quality
standards were developed to mimic historical habitat conditions and
were not developed to simply serve non-habitat purposes. The standards
may incidentally serve ``non-habitat'' purposes by removing organisms
from risk of mortality at the pumps. This topic is discussed in this
final rule in the ``Primary Constituent Element'' section for larval
and juvenile transport.
Requiring flows to maintain salinity at critical locations in the
Delta will not be ``throwing water at the problem.'' The Service has
used the best scientific data available to prescribe conditions that
will facilitate the recovery of the delta smelt, relying on scientific
evidence and testimony presented during the State Board's 1992 hearing
process, as well as information from the Service and the panel of
scientists who participated in the San Francisco Estuary Project
(SFEP).
In accordance with the Act and its regulations, the Service may
refer to either flow or salinity as water quality criteria when
critical habitat is designated for the delta smelt. Because the Act is
flexible, the Service may accomplish recovery in a variety of ways, so
long as listed species are recovered. With critical habitat defined,
the Service must identify the physical and biological features
essential to the conservation of the species, and which may require
special management considerations or protection. A primary constituent
element may include either water quality or water quantity. Special
management considerations include ``any methods or procedures useful in
protecting physical and biological features of the environment for the
conservation of a listed species.'' (50 CFR 424.12(b); 424.02(j)).
Based on the best available information, the Service concludes that
the criteria are necessary to protect and recover the delta smelt.
Delta smelt are associated with the freshwater edge of the mixing zone,
where the salinity is approximately 2 ppt (Ganssle 1966, Moyle et al.
1992, Sweetnam and Stevens 1993). In most years, the majority of the
delta smelt population lives at salinities of less than 2 ppt for most
of the year (Moyle 1976, Ganssle 1966).
Comment 2: Although several water purveyors agreed with EPA that
there is a relationship between the average position of the 2 ppt
isohaline and the health of the Estuary, they believed that the Roe
Island criterion was too protective and should be abolished. However,
another commenter thought the water quality standards as proposed by
EPA were not protective enough of the delta smelt (addressed in comment
7). Several commenters thought that requiring compliance at Roe Island
may (1) reduce the within-year variability in hydrology in Suisun Bay,
thus having an adverse impact on the biology of the Estuary; (2) place
the entrapment zone too far downstream of Suisun Bay, thereby pushing
phytoplankton and delta smelt out past Carquinez Strait into San Pablo
Bay; and (3) either greatly benefit or adversely affect native and
introduced estuarine species by enhancing or adversely affecting
habitat quantity and quality.
Service Response: To the extent feasible, maintenance of near-
historical water quality conditions at Roe Island is essential to
recovery of the delta smelt. Not only is it important to maintain low-
salinity conditions at critical locations in the Estuary depending on
the life-stage of the delta smelt, but also to simulate year-to-year
natural spring storm cycles so that natural processes and historical
conditions can be mimicked in the Estuary. The water quality standards
developed by EPA, including criteria at Roe Island, Chipps Island, and
the Sacramento-San Joaquin River confluence, were developed to provide
both within-year and between-year variability in salinity levels,
characteristic of the Estuary in the late 1960's and early 1970's. This
variability does not currently occur frequently enough in the Estuary
to maintain estuarine processes, because the construction of water
conveyance facilities in the Central Valley and Delta, as well as the
operation of diversions and upstream dams, have reduced and dampened
annual fluctuations in Delta outflow.
A low-salinity reference point at Roe Island will provide within-
year and year-to-year variability essential to maintenance of a healthy
Estuary. Requiring salinity be maintained intermittently at Roe Island
also will provide flows to carry juvenile fish from the Delta
downstream to Suisun Bay, and will maximize nutrient inputs from Suisun
Marsh and the shallows of Suisun Bay into the mixing zone. Providing
periodic low-salinity water at Roe Island will significantly increase
the total area of medium to low-salinity nursery habitat available for
delta smelt. Spring storm events are also beneficial to aquatic
resources of the Estuary, providing areas of flooded vegetation for the
spawning of some estuarine species.
Moreover, the 2 ppt isohaline is needed sporadically at Roe Island
to mimic seasonal variability of Delta flow to deter the invasion of
introduced species. The lack of seasonal and yearly variability of
Delta outflows has contributed to the invasions of introduced species.
Because variable salinity is one of the dominant features of an
estuary, ensuring natural variability in the Estuary can only benefit
native estuarine species.
Providing low-salinity water at the Roe Island historical reference
point will not put the mixing zone too far downstream into the
Carquinez Strait. Conversely, completely abolishing the Roe Island
reference point and relying exclusively on the Chipps Island and
Sacramento-San Joaquin River confluence locations may leave an
important area in the western-most portion of Suisun Bay (which is
included in critical habitat) outside the mixing zone (CCCWA/EDF 1987).
The western portion of Suisun Bay is important habitat for the delta
smelt. Delta smelt were most abundant at the Western Suisun Bay and
Carquinez Strait sampling sites in the San Francisco Bay-Outflow Study
in the years 1980-1988 (Stevens et al. 1990). Apart from the ship
channel, the southwestern portion of Suisun Bay contains expansive
shoal areas that are less than 2 meters deep (Mortensen 1987). The best
survival and growth of delta smelt larvae occur when optimum conditions
in the mixing zone occupy a large area that includes extensive shoal
regions containing suitable rearing substrates within the euphotic zone
(depths less than 4 meters).
Moreover, because the Roe Island historic reference point was
developed to mimic historical conditions in the Estuary, requiring
periodic low-saline waters at that location will not be an abnormal
occurrence. Historically, delta smelt have been flushed out into the
Carquinez Strait and into Suisun Bay in high flow years, similar to
what occurred in 1983 and 1993. The delta smelt is adapted to living in
the Estuary, where salinity varies spatially and temporally according
to tidal cycles and the amount of freshwater inflow. Nonetheless, the
historical Estuary probably offered relatively constant suitable
habitat conditions to delta smelt, which could move upstream or
downstream with the entrapment zone (Peter Moyle, University of
California, pers. comm., 1993).
The Service does not believe EPA's Roe Island salinity criteria
would be detrimental to native estuarine species. A qualitative and
graphic analysis of habitat preferences for Estuary species (including
eggs and larvae, juveniles, adults and spawning adults life stages)
presented by a commenter which predicted that EPA's salinity criteria
at Roe Island would put some species at risk or greatly benefit others
was overly broad and too simplistic. The commenter included introduced
species (e.g., inland silverside Menidia beryllina, threadfin shad
Dorosoma petenese) and marine species (e.g., several surfperches,
English sole Parophrys vetulis) in the analysis. Its analysis did not
give any preference to species having protected status, or to species
that rely solely on estuarine habitat. Freshwater, marine and
estuarine-dependent species were treated equally. The analysis
described habitat in terms of salinity alone, when other measures of
habitat, such as temperature, turbidity, and depth, are important for
some estuarine-dependent species. Since the quantity of habitat
available for a species was described only by river kilometer, complex
bathymetry was ignored in the investigation. The Service does not
intend to benefit or recover species outside the Estuary, nor does it
intend to protect introduced estuarine species. To comply with the Act,
the Service must promote the recovery of the delta smelt. Impeding the
establishment and success of introduced species, and providing suitable
habitat for delta smelt, are significant and complementary components
to recovering the species. The Service does not foresee a significant
decline in other native estuarine species due to critical habitat
designation for the delta smelt. The Service expects the opposite to
occur and has evaluated the impacts of EPA's water quality standards
through section 7 consultations.
Comment 3: One commenter thought the Roe Island criteria would not
benefit the delta smelt because the relationship between the 2 ppt
isohaline location and the abundance indices of delta smelt become
uncertain as the entrapment zone moves downstream from Chipps Island.
Service Response: The Service need not show statistical
significance between the location of the mixing zone and fishery
abundance to include variable, low-salinity habitat as a primary
constituent element. Under the Act, the Service must base a critical
habitat designation on the best scientific information available. A
statistical correlation between a primary constituent element and its
effect on species recovery is not required. The complexity of the Delta
ecosystem and the numerous factors contributing in time and space to
the species' decline make it highly unlikely that any one factor would
show a direct correlation with its potential recovery.
Comment 4: One commenter thought the Roe Island salinity criteria
would have significant impacts on carryover storage in the Sacramento
River Basin since meeting those criteria would account for a large
portion of carryover storage, and consequently, affect winter-run
salmon temperature requirements.
Service Response: The Service is addressing, in recovery planning
efforts and in section 7 consultations, the concern that compliance
with Roe Island criteria will cause reductions in carryover storage in
upstream reservoirs. Recovery planning recommendations for winter-run
chinook salmon will be included in the delta smelt recovery plan
process through coordination of the respective recovery teams for these
species. Section 7 consultations will address any competing needs for
winter-run storage in Shasta Reservoir.
Comment 5: One commenter thought that the State Water Project and
the Central Valley Project reservoirs located upstream of the Delta
lacked the capacity to release enough controlled outflow to regulate
salinity at Roe Island on a continuous basis, when recreational safety,
flooding, travel time and upstream riparian right constraints are taken
into account.
Service Response: The Service notes the isohaline need not be
located at Roe Island on a continuous basis, since EPA's Roe Island
standard is triggered only when uncontrolled runoff has placed the 2
ppt isohaline seaward of Roe Island. The SWP and CVP reservoirs have
the capacity to release outflow to meet the Roe Island criteria once
the criteria are triggered.
Comment 6: One commenter believed sampling biases and temporal and
spatial variability in the data can be factors that distort or confound
the abundance indices used to support the EPA's water quality
standards.
Service Response: The Service addressed the concerns regarding data
bias in the final rule to list the delta smelt as a threatened species
(58 FR 12856), noting that the Service is obliged under the Act to use
the best available scientific and commercial information in making a
listing determination. The Service also must use the best available
information in designating critical habitat, and must take into
consideration the economic impact, and any other relevant impact, of
specifying any particular area as critical habitat (section 4(b)(2)).
Comment 7: One commenter thought the salinity standards as proposed
by the EPA were not protective enough of the delta smelt, and
recommended that--(1) additional days be added to the Roe Island
standard in below normal to critically dry years to buffer against
years when storm flows or reservoir releases place the 2 ppt isohaline
at Roe Island for the first time late in the year, (2) a stipulation be
added for an eleventh-hour invocation'' of the 2 ppt standard if it
appears that the 2 ppt requirement will fail to be invoked at all, and
(3) the Service include a Middle Ground standard in addition to the Roe
Island standard, having the Middle Ground standard implemented
independently of any type of trigger or stipulation. The commenter
thought water quality criteria at Middle Ground were necessary not only
to provide rearing habitat immediately west of Chipps Island (since
habitat in that area is positively correlated with delta smelt
abundance), but also would allow delta smelt to access the expansive
shoals of Grizzly Bay through Honker Bay. Another commenter worried
that simply reproducing historic habitat conditions would not be
sufficient to recover the delta smelt.
Service Response: The Service believes that EPA's water quality
standards, as proposed, will afford protection and promote recovery of
the delta smelt. Adding additional independent (i.e., no trigger)
criteria at Middle Ground location (between Roe Island and Chipps
Island) would defeat the purpose of the Roe Island standard by
dampening any variability in the yearly pattern of outflow as discussed
in the preceding response.
Use of the term ``conservation'' in the definition of critical
habitat indicates that its designation should identify areas that may
be needed for a species' recovery and delisting. However, when critical
habitat is designated at the time a species is listed, the Service
frequently does not know exactly what may be needed for recovery. In
this regard, critical habitat serves to preserve options for a species'
eventual recovery. The Service will address the cause(s) and remedies
for delta smelt decline in the recovery planning process and in future
section 7 consultations as new information develops.
Comment 8: One commenter suggested a mechanism for phased
compliance be developed for EPA's water quality standards. Another
commenter suggested that the standards be set aside in critically dry
years until their exact utility in recovering the delta smelt and the
estuary is quantified.
Service Response: One of the purposes of designating critical
habitat is to identify areas that may be needed for a species' recovery
and delisting so that options can be retained for the realization of
this goal. The Service recognizes that the degradation of delta smelt
critical habitat has occurred over more than a century and that, as a
result, it is unreasonable to expect that recovery will be achieved in
a relatively short timeframe. Please refer to ``The Effects of Critical
Habitat'' section above for a detailed discussion on how the Framework
Agreement (1994), the section 7(a)(1) mandate, and CVP water contract
renewals will, in essence, allow compliance with EPA's water quality
standards to be phased in.
However, the Act does not permit the protections provided by
critical habitat to be delayed in ways that may result in the
destruction or adverse modification of critical habitat, such as what
may occur in drier water years. Having threatened status under the Act
means that the delta smelt is likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range. Designating critical habitat will facilitate the recovery (i.e.,
delisting) of the delta smelt, rather than allowing the species to
continue declining into endangered status.
Water quality (salinity) in the Estuary has been identified by the
Service as a primary constituent element essential to the conservation
of the delta smelt. A significant modification to EPA's water quality
standards, or a substantial delay or break in designating critical
habitat for the delta smelt, would not only postpone recovery of the
species but could adversely impact the species. The delta smelt's
pelagic life history, dependence on pelagic microzooplankton, 1-year
life span, limited geographic range, and low fecundity make it
susceptible to decimation if its reproductive or larval nursery areas
are disturbed for more than two years.
In formulating the basis for the economic impact analysis, the
Service assumed that destruction or adverse modification of critical
habitat would not occur in any given water year, provided that Federal
and State agencies and other parties comply with flows required in
biological opinions interim to the State Board's implementation of
water quality standards, and that Federal and State agencies are making
satisfactory progress towards implementing recovery plan objectives.
Comment 9: Agricultural interests and municipal representatives
making comments in the public hearings felt the designation of critical
habitat for the delta smelt and EPA's estuarine standards would cause
water allocation in California to be inflexible, especially in light of
expanding municipal water needs for population growth, natural
disasters (e.g., earthquakes and fires) and expanding industry. One
commenter was concerned that by designating critical habitat for the
delta smelt, construction of new Delta water conveyance facilities
would be prevented.
Service Response: Designating critical habitat for the delta smelt
will not cause water allocation in California to be inflexible. Section
7 of the Act requires Federal agencies to consult on actions that may
affect delta smelt to ensure that their actions are not likely to
destroy or adversely modify critical habitat. The Service provides
advisory recommendations under section 7 by consulting with other
Federal agencies to identify and help resolve conflicts between listed
species, their critical habitat, and proposed actions. Management
actions designed to provide protection for delta smelt through formal
consultation or the section 10 incidental take permit process can be
achieved in a variety of ways by considering a range of project
alternatives or measures. The consultation and permitting processes are
flexible, designed to identify solutions on either a project-by-project
or regional basis.
A critical habitat designation will not necessarily preclude the
construction of new Delta water conveyance facilities. The Service's
economic analysis for designating critical habitat assumed that
construction of water facilities for future economic growth is more
affected by application of the jeopardy standard, rather than critical
habitat designation. Nonetheless, these economic assumptions do not
constrain the Service's review of future water project proposals. The
construction of a new Delta water conveyance facility may or may not
jeopardize the continued existence of the delta smelt, and may or may
not result in the destruction or adverse modification of its critical
habitat, depending on numerous elements, including the facilities'
design, location and operations criteria.
Comment 10: Several commenters believed that implementation of
EPA's water quality standards will only remedy one factor contributing
to the delta smelt's decline. Commenters suggested that over-fishing,
habitat modification, and the introduction of toxics and heavy metals
to the Estuary have contributed to the decline of the delta smelt.
Numerous respondents stated that introduced species in the Delta, such
as the yellowfin goby (Acanthogobius flavimanus), striped bass and
inland silversides are the real cause of the delta smelt's decline.
Special concern was expressed over the effects that two species of
exotic zooplankton and a species of the exotic Asian clam,
(Potamocorbula amurensis) had on the Estuary ecosystem.
Service Response: Regardless of other related effects, the best
available information indicates that diminished water quality and
quantity are major factors contributing to the decline of the delta
smelt. EPA's water quality (salinity) standards will contribute to the
recovery of the delta smelt.
Under the Act, the Service may list species and designate critical
habitat even though the interaction of many causes of the species'
decline masks the relative contribution of any single factor. Critical
habitat preserves options for a species' recovery. As such, designation
of critical habitat preserves habitat conditions within which
implementation of recovery actions can occur. As stated in the final
rule to list the delta smelt, continuing studies may shed light on the
causes of decline, and lead to recovery or management actions that may
be of benefit to the species.
Comment 11: One commenter was concerned that water users could
comply with EPA's water quality standards early in the February-June
compliance period, hence adequate salinity would not be provided in
later months if the delta smelt were to spawn late in June or early
July. The same commenter suggested that a year-round standard might be
a better and more reasonable approach.
Service Response: The Service generally agrees with this comment
and recognized in the revised proposed rule that delta smelt may spawn
as late as July. Providing water quality (salinity) to conserve the
delta smelt and its critical habitat is not limited to a defined time
period as EPA's standards are to the February through June period. As
the ``Primary Constituent Elements'' section outlines, critical habitat
for the delta smelt will be focused on the habitat needs of a
particular life stage that may be affected by a project. Additional
flows may be required after the February through June period to protect
delta smelt present in the south and central Delta from being entrained
in the State and Federal projects, and to avoid jeopardy to the
species.
Biological Issues
Comment 12: One commenter suggested that the importance of habitat
in Grizzly Bay and lower Suisun Bay should be weighted since the bays
are a relatively large area of high quality habitat upon which some
species rely heavily.
Service Response: Though Grizzly Bay and lower Suisun Bay are
important areas of delta smelt habitat, habitat conditions elsewhere in
Suisun Bay and upstream in the Estuary are just as important for
spawning, larval and juvenile transport, rearing and adult migration.
Habitat for each life stage is essential for the recovery of the
species and is contained in this designation.
Comment 13: One commenter thought additional flow requirements
would not be needed in July or August to protect larval and juvenile
delta smelt from being entrained in the State and Federal water
projects since delta smelt remain in particular locations despite flow
conditions.
Service Response: The Service recognizes that juvenile and adult
delta smelt, when given the opportunity, may remain in especially
productive areas such as Suisun Bay, after the mixing zone has moved
upstream. However, flows may be required in the July-August period to
protect delta smelt present in the south and central Delta from being
entrained in the State and Federal projects, and to avoid jeopardy to
the species.
Comment 14: One respondent noted that the distribution of delta
smelt is not determined by flow alone. The commenter cited 1993 tow-net
and fall midwater trawl collections that found delta smelt upstream of
the mixing zone near Decker Island, and found delta smelt considerably
downstream of the mixing zone in Suisun Bay.
Service Response: The Service agrees that the distribution of delta
smelt is not based exclusively on flow. When delta smelt are located in
suitable, productive habitat, they may not travel with the mixing zone
as it moves upstream, or downstream. After being transported to
productive rearing habitat, delta smelt may remain and take advantage
of safe and productive nursery areas.
Delta smelt do not become ``trapped'' in the mixing zone, but may
remain in particular areas. In the text of the final rule, the Service
clarifies this point by referring to the salt and freshwater mixing
area as the ``mixing zone,'' rather than the ``entrapment zone,'' to
clear any misconception that delta smelt and other estuarine species
are associated exclusively or somehow become trapped within the
vertical circulation currents created by the saltwater-freshwater
interface. This type of circulation pattern is important because it
mixes nutrients from the ocean and inland areas, resulting in a
productive estuarine ecosystem.
The pattern of delta smelt distribution described by the commenter
is consistent with distribution patterns in earlier years when
dispersal of delta smelt was greater following wetter springs (Sweetnam
and Stevens 1993). In 1993, about half the delta smelt population
remained in Suisun Bay throughout the summer, even though the 2 ppt
isohaline retreated upstream (Herbold 1994).
Comment 15: One commenter objected to the Service's use of EPA's
proposed water quality standards as the factual and scientific basis
for the delta smelt's critical habitat.
Service Response: The Service has not based critical habitat for
the delta smelt on EPA's water quality standards. Space requirements
for delta smelt population growth, cover, and shelter, as well as
salinity, were described in detail and were included as primary
constituent elements in the proposed rule to designate critical habitat
for the delta smelt in 1991, well before EPA promulgated its proposed
standards. Since 1991, the EPA and the Service have been working
together to coordinate each agencies' actions.
Comment 16: Another commenter thought the Service simply identified
the delta smelt's entire geographic range as critical habitat without
considering whether the designation was essential to the conservation
of the species. Other respondents believed the Service did not
distinguish between areas of critical habitat that are essential and
nonessential for the conservation of the delta smelt, thereby including
marginal areas not necessary for delta smelt recovery.
Service Response: The Service agrees that critical habitat is
limited to the specific areas within the geographic area that contain
the physical and biological features needed by the species. As
discussed in more detail at comment 37, below, the Service has
described river, channel, slough and bay water habitats essential for
the recovery of the smelt. Without these areas of habitat, the delta
smelt cannot survive or reproduce, rear, or be transported between
other suitable habitat areas.
Neither the Act or its regulations requires the Service to rank or
identify areas of habitat that are more ``essential'' than others when
critical habitat is designated. In the ``Primary Constituent
Elements''section of this rule, the Service has specifically described
the importance of habitat for each life stage of this annual species.
Without adequate habitat for each of these life stages, the delta smelt
would not survive or recover. The Service may highlight and propose
specific management actions to protect and rehabilitate certain areas
in the recovery planning process, such as areas in Cache Slough and the
lower Sacramento River complex identified by one commenter.
Finally, the Service did not simply designate critical habitat
based on the entire geographic range of the delta smelt. At the time
the Service expanded the critical habitat boundary in 1994, larval
delta smelt had been located as far north as the confluence of the
Sacramento River with the Feather River. This area was not included in
the revised proposed critical habitat boundary. Based on recent
unpublished data (and brought to our attention in a comment), delta
smelt in these most upstream observations may have been misidentified
as pond smelt (Hypomesus nipponensis, or wakasagi). Portions of San
Pablo Bay, the Napa River, and western Suisun Marsh known to support
the species are not included in the critical habitat designation.
In addition, California Department of Fish and Game biologists
contacted the Service with new information that in 1993, delta smelt
were found spawning as far upstream as Sacramento. Based on this new
information and the importance of this spawning habitat in some years,
the Service expanded critical habitat in the 1994 proposal to extend to
these important areas.
Comment 17: One commenter thought the Service did not identify
areas currently occupied by the smelt.
Service Response: Delta smelt presently occur throughout the range
designated as critical habitat. Delta smelt also occur outside the
legal boundary of the Delta, in the Sacramento, San Joaquin, and
Mokelumne rivers.
Comment 18: One respondent questioned the need for critical
habitat, since delta smelt populations had increased seven-fold in
1993.
Service Response: Designation of critical habitat for the delta
smelt is justified even though the 1992 and 1993 summer tow-net and
fall midwater trawl abundance indices show increased abundance levels.
Based on the best available information, the delta smelt has not
recovered, and remains vulnerable to a variety of threats. Delta smelt
were listed as threatened because the species was likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. A species has recovered if the status
of the species, based on the best scientific and commercial data
available, indicates listing is no longer appropriate under the
criteria of the Act (50 CFR 402.02, 424.11(d)(2)). Listing remains
appropriate under the Act until long-term population abundance indices
remain at high levels and the population is widespread throughout the
Estuary for a number of years. One or two years of high abundance
levels is not sufficient to ensure recovery of an annual species such
as the delta smelt. Specific recovery criteria are being developed in
the recovery planning process.
Comment 19: Several commenters were concerned with the Service's
``single species approach'', whereas other individuals were worried
that EPA's water quality standards, having been based on eight
estuarine indicator species, were too broad because species other than
the delta smelt would benefit from the standards. There was concern how
delta smelt recovery would be coordinated with the recovery of other
threatened and endangered estuarine fish species (e.g., winter-run
chinook and Sacramento splittail), the salt marsh harvest mouse
(Reithrodontomys raviventris), California clapper rail (Rallus
longirostris obsoletus), Suisun Marsh management in general, and with
other species outside the Estuary area.
Service Response: Designation of critical habitat and identifying
water quality (salinity) as a primary constituent element for
protection of the delta smelt may incidentally benefit other native
estuarine species. Providing variable salinity regimes will facilitate
the recovery of the Estuary to its natural state. The Service does not
foresee a significant decline in other native estuarine species due to
this critical habitat designation, or due to the implementation of
EPA's water quality standards.
Delta smelt recovery will be coordinated with the habitat and water
quality needs of other fish and other marsh and wetland species in the
Estuary. The Delta Native Fishes Recovery Team was formed in 1993 to
address the Estuary native fishes in general. The recovery team will
consider the population decline of delta smelt and other native Estuary
fishes that ultimately may require active management to restore
sustainable populations. The recovery team has developed a draft
Recovery Plan that has analyzed the needs and recommended management
actions for the delta smelt, longfin smelt, Sacramento splittail, green
sturgeon, spring-run chinook salmon, late fall-run chinook salmon and
San Joaquin fall-run chinook salmon. Winter-run chinook salmon also was
included in recovery planning for the delta smelt, using
recommendations developed by the Winter-run Recovery Team.
Federal agencies that propose projects that may affect the salt
marsh harvest mouse and the California clapper rail, both listed as
endangered under the State and Federal Endangered Species Acts, must
consult with the Service under section 7 of the Federal Act. All listed
species have equal protection under the State and Federal Acts and the
Service cannot develop solutions for one species that may jeopardize
other listed species.
Comment 20: One commenter claimed that the Service misrepresented
Moyle et al. (1992) by stating that delta smelt grow faster in the
mixing zone.
Service Response: The Service is puzzled by the assertion that
Moyle et al. (1992) was misrepresented in the revised proposed rule for
delta smelt critical habitat. The Service stated: ``[w]hen the
entrapment zone is located in a broad geographic area with extensive
shallow-water habitat within the euphotic zone (depths less than 4
meters), high densities of phytoplankton and zooplankton are produced
(Arthur and Ball 1978, 1979, 1980), and larval and juvenile fish,
including delta smelt, grow rapidly.'' (Moyle et al. 1992, Sweetnam and
Stevens 1993).
Moyle et al. (1992) stated ``[T]he mixing currents keep the larvae
circulating with the abundant zooplankton also found here [in the
mixing zone] (Orsi and Knutson 1979; Siegfried et al. 1979; Stevens et
al. 1985). Growth is rapid, and the juvenile fish are 40-50 mm fork
length (FL) by early August [citations omitted].''
Sweetnam and Stevens (1993) stated ``[D]elta smelt are fast growing
and short lived (Moyle 1976) * * * The majority of growth is within the
first 7 to 9 months of life * * *.''
The purpose of the paragraph written by the Service and pointed out
by the commenter was to illustrate estuarine productivity, while
explaining the dynamics of the Estuary's mixing zone and the delta
smelt's association with the mixing zone. The Service has not knowingly
misrepresented information, and does not believe any misrepresentation
occurred in this instance.
Comment 21: One respondent commented that delta smelt spawn north
of Suisun Bay in Montezuma Slough, Suisun Slough and their tributaries,
and believed this fact contradicted the Service's assertion that delta
smelt spawn upstream of the mixing zone.
Service Response: Montezuma Slough, Suisun Slough, and their
tributaries are upstream of the area where mixing between freshwater
and salt water occurs in wetter water years. In dryer water years, the
entrapment zone may move upstream as far upstream as the City of
Sacramento in late summer, and these sloughs may become saline. If
delta smelt were to spawn late (i.e., July or August), they would
probably seek areas other than the sloughs to spawn in freshwater.
Comment 22: Several commenters at the public hearings suggested
that the Service use hatcheries to produce enough delta smelt to make
the population stable.
Service Response: The Service believes using hatcheries to
propagate fish, including delta smelt, should not be a substitute for
habitat protection and restoration. Dr. Moyle presented testimony in
1992 (Natural Heritage Institute 1992) summarizing the work of Hilborn
(1992), which explained several reasons why hatcheries are not
beneficial to the long-term maintenance of fisheries. His points
included (1) though initially successful, hatchery effectiveness
decreases after a few years; (2) hatchery fish often do poorly in the
wild; (3) artificial production poses a threat to the maintenance of
wild fish; (4) hatchery fish dilute the naturally adapted genes of wild
fish; and (5) hatcheries provide an excuse for habitat loss. Assuming
hatcheries could be used to stabilize delta smelt populations,
propagated fish would require an environment that provides ample food,
low levels of toxic compounds, and low entrainment losses (Moyle and
Herbold 1989). Reliance on hatcheries would not adhere to one of the
primary purposes of the Act, which is to conserve the ecosystem(s) upon
which listed species depend (16 USC 1531(b)).
Comment 23: One commenter asked why the Service stated that delta
smelt are more likely to be entrained in river channels than when
downstream of the Sacramento-San Joaquin River confluence, when there
is no relationship between salvage and subsequent delta smelt
abundance. The commenter noted that entrainment also occurs in Pacific
Gas and Electric (PG & E) cooling water diversions downstream from the
confluence of the two rivers.
Service Response: DWR (1994) states that Federal and State pumps
entrain delta smelt. A relationship has been found between the number
of juvenile delta smelt salvaged at the State and Federal pumps and
both the percent of inflow diverted and total Delta outflow (DWR 1994).
Whether or not there is a statistical relationship between the number
of delta smelt entrained at the State and Federal water project pumps
and subsequent delta smelt abundance, water quality (salinity) is
essential to the conservation of the delta smelt. Adequate salinity and
flow provide the delta smelt with suitable habitat for all life stages,
and will transport delta smelt away from major points of entrainment.
The Service recognizes and has stated in previous rules that delta
smelt are taken downstream of the Sacramento-San Joaquin River
confluence in numerous agricultural, municipal and industrial
diversions. Delta smelt are also taken upstream from the confluence in
numerous (over one-thousand) agricultural diversions.
Comment 24: One commenter thought the Montezuma Slough Control
Structure might aid, rather than interfere, with the distribution of
delta smelt within Suisun Marsh.
Service Response: Based on the best available evidence, the Service
maintains that operation of the Montezuma Slough Control Structure may
result in the destruction or adverse modification of critical habitat.
The Service is required by section 4(b)(8) of the Act to identify
public or private activities that may result in destruction or adverse
modification of critical habitat, and does so in the context of this
rulemaking. Even though optimal operation of the Montezuma Slough
Control Structure may provide valuable habitat to delta smelt, its
operation for other purposes may interfere with the distribution of
delta smelt to spawning and rearing habitat within Suisun Marsh. The
effects of the salinity control structure on delta smelt are currently
being investigated by the DWR, in coordination with the Bureau.
Social Issues
Comment 25: Some respondents believe humans are the real endangered
species, and that neither delta smelt nor any other animal species
should be considered more important than humans. Similarly, one
commenter thought humans could survive just fine without delta smelt,
but could not survive without farmers.
Service Response: The Act recognizes that species of fish,
wildlife, and plants are of aesthetic, ecological, educational,
historical, recreational, and scientific value to the Nation and its
people (section 2(a)(3)). Delta smelt possess these attributes. The
delta smelt is the only smelt endemic to California and one of only two
native estuarine smelt species (the other being longfin smelt) found in
the Estuary.
The purpose of the Act is to protect species in danger of becoming
extinct in the immediate or foreseeable future. Humans are not in such
danger. The number of humans has increased in the last century at a
rapid rate. As pointed out in a report submitted by one commenter,
total farm-related employment (agricultural services, food
manufacturers, and agricultural chemicals) increased between 1977 and
1989 (Carter and Goldman 1992). Agricultural services provided 89,908
jobs in California in 1989, adding some 45,000 jobs and more than 4,000
agricultural firms in 12 years.
Comment 26: Congressman Gary Condit and several other commenters
thought the critical habitat proposal failed to account for the human
element involved, especially the ``[E]ffect and toil of thousands of
human hands and hearts to provide healthy and wholesome food for the
United States and throughout the world''.
Service Response: As required by the Act, the Service has
adequately accounted for the ``human element'' by analyzing the
economic impacts of designating critical habitat for the delta smelt.
The draft economic analysis has been revised in response to public
comments, in response to discussions held at five workshops sponsored
by the EPA, and in light of additional research to better portray the
economic reality of the critical habitat designation.
Procedural and Legal Issues
Comment 27: One commenter was concerned that efforts by the Federal
agencies to manage the Bay/Delta were uncoordinated. On the other hand,
one commenter presumed that the Service adopted EPA's water quality
standards wholesale, and thought the Service had no authority to do so
because the Service designates critical habitat under the narrow
purposes of the Act, while the EPA promulgates water quality standards
under the framework of the Clean Water Act. Similarly, another
commenter thought the Service would, in effect, be interposing or
substituting EPA's regulatory judgment for its own if the Service
incorporated EPA's water quality standards in its designation of
critical habitat.
Service Response: This final rule does not incorporate EPA's water
quality standards per se, although implementation of these standards
may be a means to promote recovery of the delta smelt. The January 6,
1994, revised critical habitat proposal for the delta smelt included a
list of habitat conditions and a description of water quality primary
constituent elements. These elements were developed in accordance with
the requirements of the Act and its regulations. The Service's proposal
also reflects the coordinated approach provided by the Club Fed
process. The Service participated with the Bureau, NMFS, and EPA in
guaranteeing that the January 6, 1994, critical habitat and water
quality proposals were based on the best available scientific and
technical information. Another priority was for the proposals to take
into account the goals and concerns of the agencies and public and
private interests affected by the agencies' programs and activities.
The preservation of rare and endangered species is a substantive
link between the proposals of the Service and the EPA. The EPA
promulgated the Bay/Delta standards because they disapproved provisions
of the 1991 Bay/Delta plan developed by the State Board. The EPA
determined that the State had not adopted criteria sufficient to
protect designated uses of the Estuary, including the ``Preserv[ing]
Rare and Endangered Species'' designated use. Similarly, in discussing
the ``Relationship Between Fish and Wildlife Service and EPA Actions,''
the Service wrote--``* * * [T]he Clean Water Act requires protection of
the most sensitive use within each category of designated uses.
`Protection of Endangered and Threatened Species' is considered a
designated use within the meaning of the Clean Water Act; therefore, a
species listing under the Endangered Species Act provides one method to
identify the most sensitive use within the designated uses of a water
body.'' (59 FR 854).
Biologically, the proposed critical habitat for the delta smelt and
the salinity criteria that constituted EPA's proposed water quality
standards are directly related. ``* * * EPA's proposed water quality
standards address the location of 2 ppt salinities from February to
June and, therefore, address both critical habitat requirements for
delta smelt and a range of interrelated parameters that affect other
species that rely on estuarine habitat.'' (59 FR 854) Based on the
common legal and biological underpinnings of the critical habitat
designation and the proposed water quality standards, the Service's
treatment of salinity as a primary constituent element and the textual
references to the proposed salinity standards were appropriate and
fully consistent with the goal of assuring substantive consistency
between the two proposals.
Because the designation of critical habitat and EPA's proposed Bay/
Delta standards have common elements, the critical habitat designation
must address the standards, and, at a minimum, must not be inconsistent
with them, and vice versa. The January 6, 1994, critical habitat
proposal did not incorporate specific salinity standards into the
regulatory designation of habitat, as was the case with the initial
critical habitat proposal published in 1991. Rather, the 1994 proposal
designated water quality as a primary constituent element, stating--
``salinity concentrations [as] required to maintain delta smelt habitat
for spawning, larval and juvenile transport, rearing, and adult
migration.''
The coordinated Federal effort and the substantive consistency of
the EPA and Service proposals are a direct reflection of the agencies'
intent to address Bay/Delta issues in an effective and responsible
manner. The coordinated Club Fed process is intended to address
concerns expressed by the State of California of a perceived lack of
coordination among the Federal agencies.
Comment 28: One commenter thought designation of critical habitat
was not prudent at this time, since critical habitat would not provide
the delta smelt any more protection than the listing of the species had
already provided. Another commenter thought designating critical
habitat at the present time would interfere with the delta smelt
recovery planning process.
Service Response: Designation of critical habitat is prudent at
this time because the designation will provide substantive benefits to
the delta smelt beyond those already resulting from its status as a
threatened species. Critical habitat serves to preserve options for a
species' eventual recovery. A critical habitat designation contributes
to species conservation primarily by identifying important geographic
areas, and by describing the features within the areas that are
essential to the species. The designation puts public and private
entities on notice that the area is important habitat. Section 7 of the
Act requires Federal agencies to ensure that any action they authorize,
fund, or carry out is not likely to destroy or adversely modify
designated critical habitat. This section requires parties to consult
with the Service to avoid jeopardy and destruction or adverse
modification to important habitat areas.
A designation of critical habitat provides a clearer indication to
Federal agencies as to when consultation under section 7 is required,
particularly in cases where the action would not result in direct
mortality or injury to individuals of the listed species (e.g., an
action occurring within the critical area when a migratory species is
not present). The critical habitat designation, describing the
essential physical or biological features of the habitat, also assists
parties in determining which activities conducted outside the
designated area are subject to section 7 consultation (i.e., activities
that may affect primary constituent elements of the designated area).
Designating critical habitat also assists private, State, and
Federal agencies in planning future actions, since the designation
establishes, in advance, those habitats that will be given special
consideration in section 7 consultations and section 10 incidental take
activities. With the designation of critical habitat, potential
conflicts between projects and endangered or threatened species can be
identified and possibly avoided early in the agency's planning process.
Designating critical habitat will not interfere with recovery
planning efforts now in progress. A recovery plan would be prepared for
the delta smelt pursuant to the Act whether or not critical habitat was
designated for the species.
Comment 29: One commenter thought Club Fed could not restore
natural resources to levels existing during times of significantly
fewer people under current California law. Another respondent believed
the Service may not refer to EPA's water quality standards because the
estuarine standards are based on historical conditions, rather than on
``existing conditions'' now occurring in the Estuary. The respondent
claims there is a temporal element in the definition of critical
habitat, stating that critical habitat is defined in the Act in terms
of existing conditions, and the Service must look to specific areas
which contain physical and biological features essential to the
conservation of the species at the time it is listed. The commenter
went on to say that critical habitat may only consist of those areas
that currently contain essential physical and biological features.
Service Response: The definition of critical habitat does not
require that all primary constituent elements necessarily be conditions
existing at the time critical habitat is designated. Conditions
existing historically in the Estuary are required to recover the delta
smelt. Conditions now occurring in the Estuary have resulted in the
decline of the delta smelt population, because the Estuary currently
does not contain all of the physical and biological features (e.g.,
habitat requirements and salinity) necessary for each of the species'
life stages. Critical habitat for the delta smelt identifies areas
needed to conserve the species, so it may recover and, ultimately, be
delisted. In order to accomplish recovery, it is necessary that
critical habitat encompass conditions that are superior to existing
conditions, so that all of the physical and biological features
necessary for the delta smelt are present in the Estuary. The Delta
Native Fishes Recovery Team has identified 1968 as a time when the
Estuary had appropriate hydrologic conditions that would allow recovery
of the delta smelt. An interagency Statement of Principles (Plenert,
Fullerton, and Seraydarian, in litt. 1992) among the Service, NMFS and
EPA have found that the Estuary ecosystem and its anadromous and
resident fisheries were relatively healthy during the years between
1960-1970. The Service recognizes no significant conflict with managing
toward historic conditions for all primary constituent elements as a
conservation strategy for the delta smelt.
The Service notes that the 1994 revised proposed critical habitat
for the delta smelt contains the physical and biological features
essential for the conservation of the delta smelt. Using equations
developed by Kimmerer and Monismith (1992) to calculate salinity, DWR
(1993) determined that the isohaline was located downstream of the Roe
Island historic reference point 124 days, and was between Roe Island
and Chipps Island habitat 14 days between February 1 and June 31 in
1993 (DWR 1993). Therefore, conditions for spawning, larval and
juvenile transport, rearing and adult migration was, in fact, available
for all life stages as recently as 1993. However, these physical and
biological features do not occur frequently enough, and are not
protected during critical periods in February through June, especially
in drier water years. The mixing zone was pushed out beyond Roe Island
during this period because 1993 was a wet year. Water quality criteria
are necessary to ensure habitat suitable for the delta smelt are
available at critical times in all water-year types.
Comment 30: The Service did not identify a plan, any directives, or
a goal to ensure that delta smelt are protected, or to indicate when
the species is recovered.
Service Response: A critical habitat designation need not, and
should not, include specific management plans or recovery goals.
Designating critical habitat for a species does not result in a
management or recovery plan. Critical habitat simply identifies areas
where conservation efforts should be concentrated. Designating critical
habitat alone will not dictate how the delta smelt should be protected,
nor will it require identification of goals to measure the success of
the designation. Plans, goals, and directives will be identified and
set in motion during the recovery planning process. Section 4(f)(1) of
the Act specifies what should be included in a recovery plan. Criteria
for downlisting or delisting are contained in recovery plans, which
function as goals to achieve species conservation. The Delta Native
Fishes Recovery Team has developed a draft Recovery Plan for the delta
smelt and other estuarine fish species, and will include recovery and
delisting criteria for the delta smelt. The public will have the
opportunity to comment on a draft delta smelt Recovery Plan before it
is approved as a final plan as required by section 4(f)(4) of the Act.
Comment 31: Senator Phil Wyman and The California Farm Bureau were
disappointed with the quality of the public hearings held in Fresno
because only the Service and the EPA attended the meeting to hear
testimony and answer questions. The Senator and the Farm Bureau
believed the Bureau and NMFS should have been at the hearing, since the
issues involved ``Club Fed''. Moreover, several of the participants in
Fresno felt the hearings were simply a ``going-through-the-motions''
exercise.
Service Response: Section 4(b)(5)(E) of the Act requires the
Service to hold a public hearing if one is requested within 45 days of
the publication of a proposed rule. The Service received such a
request, and held hearings in Fresno, Irvine, Sacramento, and San
Francisco to accept public comment on two proposals by the Service and
on one proposal by EPA--the proposed critical habitat designation for
the delta smelt, listing of the Sacramento splittail, and Bay/Delta
water quality standards.
The hearings are not a ``going-through-the-motions'' event. Service
staff review all oral comments presented at the public hearings from
the hearing transcripts. Oral comments are given the same weight and
consideration as are comments submitted in written form.
Comment 32: Many commenters thought the Service should prepare an
Environmental Impact Statement (EIS) required by NEPA, to comply with
the holding in Douglas County v. Lujan. These commenters thought the
Service should assess the environmental and social impacts that may
occur in or near the Estuary, and outside the Estuary area as a result
of designating critical habitat for the delta smelt. Commenters
identified potential environmental impacts, including groundwater
overdraft and subsequent land subsidence, sagging canals and leaking
rivers, fugitive dust, warming of reservoir water, impacts on regional
water quality control plans, increased energy use, impacts on listed
and candidate species, loss of water for wetlands, loss of open-space
habitat provided by farms, and impacts on regional recreational use at
reservoirs.
Service Response: The decision in Pacific Legal Foundation v.
Andrus (657 F.2d 829) held that an EIS is not required for listings
under the Act. The decision noted that preparing an EIS on listing
actions does not further the goals of NEPA or the Act. The Service
believes that, under the reasoning of this decision, preparing an EIS
for the delta smelt critical habitat designation would not further the
goals of NEPA, or the Act, and is not legally required.
The United States District Court for the District of Oregon in
Douglas County v. Lujan held that critical habitat designations should
be analyzed under NEPA. However, the decision is stayed pending appeal
to the Ninth Circuit.
In addition, see the discussion in this rule respecting NEPA
compliance.
Comment 33: One commenter thinks the Service violated the Federal
Advisory Committee Act (FACA) because it relied on scientific
information developed by the San Francisco Estuary Project (SFEP) in
developing the revised critical habitat designation.
Service Response: Section 4(b)(2) of the Act specifies that ``The
Secretary shall designate critical habitat * * * on the basis of the
best scientific data available * * *.'' When the Service identifies
critical habitat, it relies on scientific data in published literature,
data gathered as a result of status reviews, data received during the
public comment periods, and information communicated in conversations
with biologists, economists and other specialists. A summary of the
findings of the SFEP (1993) was included in the body of information
that the Service used to revise the proposed rule to designate critical
habitat.
Critical habitat for the smelt was first proposed in October, 1991.
The Service revised the critical habitat boundaries in 1994, relying on
the best scientific information available from California Department of
Fish and Game biologists, Service biologists, and new scientific
information received during the public comment period from the EPA and
other commenters. Included in this information were the findings and
recommendations of the SFEP.
Had the Service not used SFEP information, the Service would not
have complied with section 4(b)(2) of the Act, which requires use of
the best scientific evidence available. SFEP was created in 1988 as
part of EPA's National Estuary Program. The SFEP is an Environmental
Management Program of EPA, the State of California and the Association
of Bay Area Governments. The Service has participated in the SFEP
extensively over the past several years. The SFEP developed
recommendations for estuarine standards, and complied with FACA when
they conducted workshops and meetings, and when they chose participants
to work on the standards.
Comment 34: One commenter thought the critical habitat designation
is defective since the data supporting the expansion of critical
habitat for the delta smelt was based on personal communications not
available for the public review.
Service Response: The Service relied on information that has been
available to the public by contacting the California Department of Fish
and Game, EPA or the Service. The administrative record for the
critical habitat designation is and has been available for public
inspection since publication of the initial proposed rule in 1991.
Comment 35: One commenter urged the Service and the EPA to exhaust
all possible remedies to recover the delta smelt (e.g., by using the
Delta Protection Act) before more burdens were placed on California's
water users with the designation of critical habitat.
Service Response: Pursuant to 50 CFR 424.12, the Service must
designate critical habitat unless it is not prudent to do so. The
Service has not concluded that it is not prudent to designate critical
habitat. Further, critical habitat is determinable. Therefore, the
requirement at section 4(b)(6)(c)(ii) to publish a final designation by
not more that one year after listing applies.
Comment 36: One commenter felt the proposed critical habitat
designation should be withdrawn since the Service did not comply with
the statutory time period for designating critical habitat for the
delta smelt. The commenter cited Idaho Farm Bureau Federation v.
Babbitt, 839 F.Supp. 739 (D. Idaho 1993) to support its contention.
Service Response: In this rulemaking, the Service first proposed
critical habitat for the delta smelt in 1991. It revised its proposal
in 1994 after public comment indicated that the Service had not
included important spawning habitat for the species. These facts are
significantly different from those of the case cited by the commenter.
As such, the Service does not apply the holding in that case to this
rulemaking effort.
Comment 37: One commenter thought measures implemented in the past
to protect delta smelt habitat be given a ``credit'' in any future
section 7 consultation or section 10 determination with the Service.
Service Response: Under sections 7 and 10 of the Act, the Service
assesses the merits of project proposals on a case-by-case basis. In a
formal section 7 consultation, the Service evaluates the effects of an
action, creating an environmental baseline (50 CFR 402.14(g)(3)). This
baseline includes the past and present impacts of all Federal, State,
or private actions and other human activities in the action area, the
anticipated impacts of all proposed Federal projects in the action area
that have already undergone formal or early section 7 consultation, and
the impact of State or private actions which are contemporaneous with
the consultation in process (50 CFR 402.02). Conservation actions
proposed by project proponents can be considered as suitable measures
to reduce the impact of incidental take, or otherwise reduce, mitigate,
and compensate for project effects.
Economic Issues
Comment 38: Many commenters thought the economic analysis prepared
for the Service by the EPA was inadequate.
Service Response: The economic analysis is described and its
results are summarized in this final rule. The Service believes the
economic analysis is sufficient in that it adequately and appropriately
identifies costs of designating critical habitat. As such, it enables
the Secretary to exclude areas from critical habitat designation if the
benefits of an exclusion are found to outweigh the benefits of
including an area as critical habitat.
Comment 39: Several commenters accused the Service of incorrectly
minimizing the economic impacts in the delta smelt critical habitat
designation since the impacts associated with the critical habitat
designation were separated from the economic impacts attributable to
the listing of the species.
Service Response: Section 4(b)(2) of the Act requires the Service
to consider the economic and other relevant impacts of designating
critical habitat. It does not direct the Service to assess the economic
impacts of both listing the species and designating its critical
habitat. Section 4(b)(1)(A) of the Act explicitly precludes the Service
from considering the economic impacts of listing a species as
threatened or endangered. The congressional intent behind inclusion of
this statutory provision was to ensure that only relevant biological
criteria are used to assess the ecological status of a species.
The 1994 revised proposed critical habitat designation for the
delta smelt explained the economic impacts attributable to listing and
to critical habitat designation. Subsequent to listing and prior to
this final critical habitat designation, protective measures for the
delta smelt (e.g., as provided through section 7 consultation with the
Bureau) have been in place and created economic impacts not associated
with critical habitat designation. In a comprehensive economic analysis
prepared by the EPA and other economists for the Service, the economic
impacts attributed to designating critical habitat have been evaluated.
The Service has not limited the examination of economic impacts so as
to minimize the economic effects of designating critical habitat.
Comment 40: One commenter thought that the Service could not begin
to define critical habitat until it fully considered the economic
impacts of the designation. The commenter thought a proposed rule for
critical habitat could not be drafted until an economic analysis was
conducted, and an opportunity to comment on the analysis was provided
to interested parties. Another commenter thought the public should be
able to comment on a revised critical habitat designation in the event
the Secretary excludes portions of habitat which were included in the
revised proposed rule.
Service Response: The Service has not defined critical habitat
prematurely for the delta smelt because the Act does not require
completion of an economic analysis before the Service can propose
critical habitat areas. In a critical habitat rulemaking conducted in
accordance with the Act and the Administrative Procedure Act (APA), the
Service defines and proposes critical habitat boundaries, conducts an
economic impact analysis, takes public comment on the proposed critical
habitat designation and the economic analysis, makes exclusions, if
any, to critical habitat boundaries, and promulgates a final rule. The
Secretary, through the Service, has the discretion to exclude critical
habitat areas based on economics, in accordance with the section
4(b)(2) standard. The section allows the Secretary to exclude any area
from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of
critical habitat, provided that exclusion will not result in extinction
of a species. The Service has properly conducted critical habitat
rulemaking for the delta smelt.
Neither the Act, nor its regulations, require the Service to allow
public comment on revised critical habitat designations where the
Secretary has excluded areas of proposed critical habitat. The standard
rulemaking process requires preparation of a proposed rule followed by
a final rule. Publishing a draft final rule is not required. The
Service acknowledges that the public was allowed to comment in the
above described manner in the critical habitat designation for the
Northern Spotted Owl, however, the opportunity for public comment was a
policy decision made specifically for that rulemaking and is not
required by law.
The Service has provided ample opportunity for the public to
comment on the delta smelt critical habitat designation proposals and
on the economic analysis during prescribed comment periods from October
3 to February 3, 1992; March 16 to April 30, 1993, and again from
January 27 to March 11, 1994. Four public hearings also were held to
solicit comments on the revised proposed critical habitat designation.
Comment 41: One commenter thought the critical habitat designation
was flawed since the economic analysis could not properly analyze
economic impacts likely to arise from the proposed designation, because
the Service failed to present any focused or concrete indication of
what specific management measures would be pursued. The commenter
thought the public was not able to effectively comment on the critical
habitat designation due to this inadequacy.
Service Response: Designating critical habitat does not result in a
management plan. Specific management measures are identified in a draft
Recovery Plan that currently is being prepared by the Service, and need
not be identified in a proposed critical habitat designation.
As described in the above comment, the Service believes the public
was given an opportunity to effectively comment on the critical habitat
designation and the draft economic analysis. The draft RIA was
available for review and provided sufficient detail so that the public
could provide meaningful comments.
Comment 42: One commenter believes the critical habitat designation
is deficient because the Service failed to analyze the potential
economic impacts of any particular portion of the Delta.
Service Response: Section 4 of the Act requires the Secretary to
take into consideration ``The economic impact * * * of specifying any
particular area as critical habitat.'' The Service may exclude any area
from critical habitat if it is determined that the benefits of such
exclusion outweigh the benefits of specifying such areas as part of
critical habitat, unless failure to designate such area will result in
the extinction of the species.
The Service believes it has adequately analyzed the potential
economic impacts of the Estuary ``area.'' The Act does not require an
agency to analyze potential economic impacts for any specific or
particular ``area.'' An ``area'' is not limited to particular reaches
of a river, or particular areas of a species' habitat.
Comment 43: The Department of the Army thought the Service did not
sufficiently analyze the economic impacts of designating critical
habitat, and did not include adequate economic data. They thought the
Service should have included channel dredging activities and the
maintenance of flood control levees in the economic analysis, including
the economic impacts of potential failure and flooding since
maintenance might be limited due to critical habitat designation.
Service Response: The Service believes the economic impacts of
designating critical habitat have been sufficiently addressed, and
include discussion of dredging and levee maintenance. As discussed in
the final rule to list the delta smelt, and in the revised proposed
rule to designate critical habitat for the species, the Service
determined that the economic impact of restricting activities
associated with deep water navigation channel dredging were
attributable to the jeopardy standard imposed by the listing of the
delta smelt as a threatened species. Hence, the economic impacts of
these activities can not be associated with designating critical
habitat.
The Service did determine that levee maintenance may adversely
modify critical habitat without necessarily jeopardizing the delta
smelt. The economic impacts of restrictions associated with the
construction and implementation of these projects have been analyzed to
determine the economic cost or benefit of critical habitat designation.
Properly scheduling maintenance and construction activities to avoid
periods critical to a species can allow projects to go forward without
incurring large economic impacts.
National Environmental Policy Act
The Service has determined that an Environmental Assessment and/or
an Environmental Impact Statement, as defined under the authority of
the National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Act. A notice outlining the Service's reasons for this determination
was published in the Federal Register on October 25, 1983 (48 FR
49244).
Regulatory Flexibility Act and Executive Order 12866
This proposed rule has been reviewed under Executive Order 12866.
The Department of the Interior has determined that the proposed rule
will not have a significant economic effect on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Based on the information discussed in this rule, significant
economic impacts will not result from the critical habitat designation.
Also, no direct costs, enforcement costs, information collection, or
recordkeeping requirements are imposed on small entities by this
designation. Further, the rule contains no recordkeeping requirements
as defined by the Paperwork Reduction Act of 1980.
Takings Implications Assessment
The Service has analyzed the potential takings implications of
designating critical habitat for the delta smelt in a Takings
Implications Assessment prepared pursuant to requirements of Executive
Order 12630, ``Governmental Actions and Interference with
Constitutionally Protected Property Rights.'' The Takings Implications
Assessment concludes that the designation does not pose significant
takings implications.
References Cited
Arthur, J.F., and M.D. Ball. 1978. Entrapment of suspended materials
in the San Francisco Bay-Delta Estuary. U.S. Dept. Interior, Bureau
of Reclamation, Sacramento, California.
Arthur, J.F., and M.D. Ball. 1979. Factors influencing the
entrapment of suspended material in the San Francisco Bay-Delta
Estuary. Pages 143-174 in T.J. Conomos, editor. Pacific Division,
Amer. Assoc. Advance. Sci., San Francisco, California.
Arthur, J.F., and M.D. Ball. 1980. The significance of the
entrapment zone location to the phytoplankton standing crop in the
San Francisco Bay-Delta Estuary. U.S. Dept. Interior, Water and
Power Resources Service.
California Department of Water Resources 1993. Operations and
Maintenance Compliance Monitoring Preliminary Data on the
Positioning of the 2 ppt Isohaline (X2) for the Period January 1,
1993 to November 30, 1993.
California Department of Water Resources and the Bureau of
Reclamation. 1994. Effects of the Central Valley Project and State
Water Project on Delta Smelt. Draft Biological Assessment prepared
for the U.S. Fish and Wildlife Service.
Carter, H., and G. Goldman. 1992. The Measure of California
Agriculture: Its Impact on the State Economy. University of
California, Division of Agriculture and Natural Resources.
Contra Costa County Water Association and The Environmental Defense
Fund. 1987. A salinity standard to maximize phytoplankton abundance
by positioning the entrapment zone in Suisun Bay. Prepared for the
SWRCB 1987 Water Quality/Water Rights Proceeding on the San
Francisco Bay/Sacramento-San Joaquin Delta. CCCWA/EDF Exhibit 1.
Erkkila, L.F., J.W. Moffet, O.B. Cope, B.R. Smith, and R.S. Smith.
1950. Sacramento-San Joaquin Delta fishery resources: Effects of
Tracy Pumping Plant and the Delta Cross Channel. U.S. Fish and
Wildlife Service Special Scientific Rept. 56:1-109.
Ganssle, D. 1966. Fishes and decapods of San Pablo and Suisun Bays.
Pages 64-94 in D.W. Kelley, editor. Ecological studies of the
Sacramento-San Joaquin estuary, Part 1. Calif. Dept. Fish and Game,
Fish Bulletin 133.
Goldman, C.R., and A.J. Horne. 1983. Limnology. McGraw-Hill Book
Company, New York, New York.
Governor's Water Policy Council of the State of California and the
Federal Ecosystem Directorate. 1994. Framework Agreement with
respect to environmental protection and water supply dependability
in the San Francisco Bay, Sacramento-San Joaquin Delta Estuary and
its watershed (Bay-Delta Estuary).
Herbold, B. 1994. Habitat requirements of the delta smelt. Pages 1-3
in R. Brown, editor. Interagency Ecological Studies Program for the
Sacramento-San Joaquin Estuary Newsletter. Winter 1994. California
Department of Water Resources, Sacramento, California.
Hilborn, R. 1992. Hatcheries and the Future of Salmon in the
Northwest. Fisheries 17:5-8. WRINT-NHI-20. Article submitted by the
Natural Heritage Institute for State Water Resources Control Board
Water Rights Phase of the Bay/Delta Proceedings, July 27, 1992.
Kimmerer, W. and Monismith, S. 1992. Revised estimates of position
of 2 ppt salinity. Memo prepared by Biosystems Analysis, Inc. for
the San Francisco Estuary Project. WRINT-SFEP-7. Submitted by the
San Francisco Estuary Project for State Water Resources Control
Board Water Rights Phase of the Bay/Delta Proceedings.
Lindberg, J.C. 1992. Development of delta smelt culture techniques.
Report prepared by Biosystems Analysis, Inc. for the Department of
Water Resources. 22 pp.
Lindberg, J.C. and Marzuola, C. 1993. Delta smelt in a newly-
created, flooded island in the Sacramento-San Joaquin Estuary,
Spring 1993. Report prepared by Biosystems Analysis, Inc. for the
California Department of Water Resources.
Mager, R. 1993. Delta smelt culturing. Pages 2-3 in W. Kimmerer
Minutes of the March 1993 Food Chain Group Meeting. Department of
Water Resources. April 22, 1993, memo. 8 pp.
Monroe, M.W., and J. Kelly. 1992. State of the estuary: A report on
conditions and problems in the San Francisco Bay/Sacramento-San
Joaquin Delta Estuary. San Francisco Estuary Project, Oakland,
California.
Mortensen, W.E. 1987. Investigation of estuarine circulation in
Suisun Bay. Prepared for the Bay Institute of San Francisco for the
SWRCB 1987 Water Quality/Water Rights Proceeding on the San
Francisco Bay/Sacramento-San Joaquin River Delta. Bay Institute
Exhibit 49.
Moyle, P.B. 1976. Inland Fishes of California. University of
California Press, Berkeley, California.
Moyle, P.B. and B. Herbold. 1989. Status of the delta smelt,
Hypomesus transpacificus. Unpublished report prepared for U.S. Fish
and Wildlife Service, Sacramento Field Office, Habitat Conservation.
Moyle, P.B., B. Herbold, D.E. Stevens, and L.W. Miller. 1992. Life
history and status of delta smelt in the Sacramento-San Joaquin
Estuary, California. Trans. Amer. Fish. Soc. 121:67-77.
Natural Heritage Institute 1992. Artificial propagation of declining
fish species in the estuary does not substitute for the habitat
restoration measures required for natural production. WRINT-NHI-19.
Expert testimony of Dr. Peter B. Moyle on artificial propagation for
Delta fish species for State Water Rights Phase of the Bay/Delta
Proceedings, July 27, 1992.
Nichols, F.H., J.E. Cloern, S.N. Luoma, and D.H. Peterson. 1986. The
modification of an estuary. Science 231:567-573.
Radtke, L.D. 1966. Distribution of smelt, juvenile sturgeon, and
starry flounder in the Sacramento-San Joaquin Delta with
observations on food of sturgeon. Pages 115-129 in J.L. Turner and
D.W. Kelley, editors. Ecological studies of the Sacramento-San
Joaquin delta, Part 2. Calif. Dept. Fish and Game, Fish Bulletin
136.
San Francisco Estuary Project, 1993. Managing Freshwater Discharge
to the San Francisco Bay/Sacramento-San Joaquin Delta Estuary: The
Scientific Basis for an Estuarine Standard. 17 pp. + appendices.
Stevens, D.E., L.W. Miller, and B.C. Bolster. 1990. Report to the
Fish and Game Commission: A status review of the delta smelt
(Hypomesus transpacificus) in California. Calif. Dept. Fish and Game
Candidate Species Status Report 90-2.
Sweetnam, D.A., and D.E. Stevens. 1993. Report to the Fish and Game
Commission: A status review of the delta smelt (Hypomesus
transpacificus) in California. Calif. Dept. Fish and Game Candidate
Species Status Report 93-DS.
U.S. Environmental Protection Agency. 1994. Regulatory impact
assessment of the proposed water quality standards for the San
Francisco Bay/Delta and critical habitat requirements for the delta
smelt. San Francisco, CA. With technical assistance from Jones &
Stokes Associates, Inc. Sacramento, CA.
U.S. Fish and Wildlife Service. 1994. Formal Consultation on the
1994 Operation of the Central Valley Project and State Water
Project: Effects on Delta Smelt. February 4, 1994, Sacramento,
California.
Wang, J.C.S. 1986. Fishes of the Sacramento-San Joaquin estuary and
adjacent waters, California: A guide to the early life histories.
Interagency Ecological Study Program for the Sacramento-San Joaquin
Estuary. Tech. Rept. 9.
Wang, J.C.S. 1991. Early life stages and early life history of the
delta smelt, Hypomesus transpacificus, in the Sacramento-San Joaquin
estuary, with comparison of early life stages of the longfin smelt,
Spirinchus thaleichthys. Interagency Ecological Studies Program for
the Sacramento-San Joaquin Estuary. Tech. Rept. 28.
Authors
The primary authors of this proposed rule are Nadine R. Kanim and
Dana Jacobsen, Sacramento Field Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulation Promulgation
Accordingly, the Service hereby amends part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
Sec. 17.11 [Amended]
2. Amend Sec. 17.11(h), in the entry in the table under FISHES for
``Smelt, delta,'' in the column under ``Critical habitat'' by revising
``NA'' to read ``17.95(e).''
3. Amend Sec. 17.95(e) by adding critical habitat of the delta
smelt in the same alphabetical order as the species occurs in
Sec. 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
(e) * * *
* * * * *
DELTA SMELT (Hypomesus transpacificus)
California--Areas of all water and all submerged lands below
ordinary high water and the entire water column bounded by and
contained in Suisun Bay (including the contiguous Grizzly and Honker
Bays); the length of Montezuma Slough; and the existing contiguous
waters contained within the Delta, as defined by section 12220, of
the State of California's Water Code of 1969 (a complex of bays,
dead-end sloughs, channels typically less than 4 meters deep,
marshlands, etc.) as follows:
Bounded by a line beginning at the Carquinez Bridge which
crosses the Carquinez Strait; thence, northeasterly along the
western and northern shoreline of Suisun Bay, including Goodyear,
Suisun, Cutoff, First Mallard (Spring Branch), and Montezuma
Sloughs; thence, upstream to the intersection of Montezuma Slough
with the western boundary of the Delta as delineated in section
12220 of the State of California's Water Code of 1969; thence,
following the boundary and including all contiguous water bodies
contained within the statutory definition of the Delta, to its
intersection with the San Joaquin River at its confluence with
Suisun Bay; thence, westerly along the south shore of Suisun Bay to
the Carquinez Bridge.
BILLING CODE 4310-55-P
TR19DE94.000
BILLING CODE 4310-55-C
Primary Constituent Elements--physical habitat, water, river
flow, and salinity concentrations required to maintain delta smelt
habitat for spawning, larval and juvenile transport, rearing, and
adult migration.
Dated: December 8, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-31063 Filed 12-16-94; 8:45 am]
BILLING CODE 4310-55-P