[Federal Register Volume 78, Number 11 (Wednesday, January 16, 2013)]
[Proposed Rules]
[Pages 3381-3389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00809]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 121210693-2693-01]
RIN 0648-BC68
Endangered and Threatened Species: Designation of a Nonessential
Experimental Population of Central Valley Spring-Run Chinook Salmon
Below Friant Dam in the San Joaquin River, CA
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; notice of availability.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose a
rule to designate a nonessential experimental population of Central
Valley spring-run Chinook salmon (Oncorhynchus tshawytscha) under
section 10(j) of the Endangered Species Act (ESA) in portions of the
San Joaquin River, and to establish take exemptions for the proposed
nonessential experimental population for particular activities inside
the experimental population's geographic range and outside of the
current evolutionarily significant unit (ESU) designated boundary of
the species in the San Joaquin River tributaries and in the Delta.
A draft environmental assessment (EA) has been prepared on this
proposed action and is available for comment (see ADDRESSES and
INSTRUCTIONS section below).
DATES: To allow us adequate time to consider your comments on this
proposed rule, they must be received no later than March 4, 2013.
Comments on the EA must be received by March 4, 2013. Three public
meetings will be held at which the public can make comments on the
draft EA and proposed rule. The first meeting will be in Chico, CA on
February 5, 2013, at the Chico Masonic Family Center, 1110 West East
Avenue from 5:30 p.m. to 7:30 p.m. The second meeting will be in
Fresno, CA on January 24, 2013, at the Fresno Metropolitan Flood
Control District, Board Meeting Room, 5469 E. Olive Avenue from 5:30
p.m. to 7:30 p.m. (The public should park in the front parking area
(rear parking area closes at 5:30 p.m. with no exit after that time)
and enter the door located on the west side of the front building). The
third meeting
[[Page 3382]]
will be in Los Banos, CA on January 25, 2013 at the Los Banos Community
Center, 645 7th Street from 2 p.m. to 4 p.m.
ADDRESSES: You may submit comments on this proposed rule, identified by
NOAA-NMFS-2012-0221 by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0221, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Elif Fehm-Sullivan,
Fisheries Biologist, Protected Resources Division, Southwest Region,
National Marine Fisheries Service, 650 Capitol Mall, Suite 5-100,
Sacramento, California 95814.
Fax: (916) 930-3629.
Email: [email protected].
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are part of the
public record and will generally be posted to http://www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
You may access a copy of the draft EA by one of the following:
Visit NMFS' Reintroduction Web site at http://swr.nmfs.noaa.gov/sjrrestorationprogram/salmonreintroduction.htm.
Call (916) 930-3723 and request to have a CD or hard copy
mailed to you.
Obtain a CD or hard copy by visiting NMFS' Central Valley
office at 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814.
Please see the draft EA for additional information regarding
commenting on that document.
FOR FURTHER INFORMATION CONTACT: Elif Fehm-Sullivan, National Marine
Fisheries Service, 650 Capitol Mall, Suite 5-100, Sacramento,
California 95814 (916-930-3723) or Dwayne Meadows, NMFS, 1315 East-West
Highway, Silver Spring, MD 20910 (301-427-8403).
SUPPLEMENTARY INFORMATION:
Background Information Relevant to Experimental Population Designation
In 1988, a coalition of environmental groups, led by the Natural
Resources Defense Council (NRDC), filed a lawsuit challenging renewal
of long-term water service contracts between the United States and the
Central Valley Project (CVP) Friant Division contractors. After more
than 18 years of litigation of this lawsuit, known as NRCD, et al., v.
Kirk Rodgers, et al., a Settlement was reached (Settlement). On
September 13, 2006, the Settling Parties, including NRDC, Friant Water
Users Authority (now the Friant Water Authority (FWA)), and the U.S.
Departments of the Interior and Commerce, agreed on the terms and
conditions of the Settlement, which was subsequently approved by the
U.S. Eastern District Court of California on October 23, 2006. The
Settlement establishes two primary goals: (1) Restoration Goal--To
restore and maintain fish populations in ``good condition'' in the
mainstem San Joaquin River below Friant Dam to its confluence with the
Merced River, including naturally reproducing and self-sustaining
populations of salmon and other fish, and (2) Water Management Goal--To
reduce or avoid adverse water supply impacts on all of the Friant
Division long-term contractors that may result from the interim and
restoration flows provided for in the Settlement. Paragraph 14 of the
Settlement indicates that the Restoration Goal shall include the
reintroduction of Central Valley spring-run Chinook salmon (hereafter,
CV spring-run Chinook salmon) to the San Joaquin River between Friant
Dam and its confluence with the Merced River.
In 2009, as part of the Omnibus Public Land Management Act,
Congress enacted the San Joaquin River Restoration Settlement Act
(Public Law No. 111-11, 123 Stat. 1349) (SJRRSA), which ratified the
terms of the litigation Settlement and provided additional authorities
to the Department of the Interior to facilitate successful
implementation of the Settlement. The SJRRSA provides that if the
Secretary of Commerce (Secretary) concludes that a program to
reintroduce CV spring-run Chinook salmon into the San Joaquin River can
be implemented consistent with other requirements of the ESA, the
reintroduction ``shall be [conducted] pursuant to Sec. 10(j)'' of the
ESA.
The proposed experimental population will occur in the San Joaquin
River from its confluence with the Merced River upstream to Friant Dam
and will include all sloughs, channels, and water ways that allow for
CV spring-run Chinook salmon passage along the San Joaquin River and
will also include portions of the Kings River, when high water years
connect the Kings River with the San Joaquin River. While this
experimental area is part of the species historical range, it is
outside the current range of the CV spring-run Chinook salmon ESU.
The CV spring-run Chinook salmon ESU (70 FR 37160; June 28, 2005)
is listed as threatened under the ESA, and its threatened status was
recently confirmed following completion of a 5-year review (NMFS,
2011). The CV spring-run Chinook salmon ESU includes all naturally
spawned populations of spring-run Chinook salmon in the Sacramento
River and its tributaries, as well as the Feather River Fish Hatchery
(FRFH) spring-run Chinook salmon program. We have issued protective
regulations under section 4(d) of the ESA for CV spring-run Chinook
salmon that prohibit their ``take'' unless otherwise authorized (50 CFR
223.203).
Statutory and Regulatory Framework for Experimental Population
Designation
Section 10(j) of the ESA (16 U.S.C. 1539(j)) defines an
experimental population as a population that has been authorized for
release by the Secretary but only when, and at such times as, the
population is wholly separate geographically from nonexperimental
populations of the same species. The ESA allows the Secretary to
authorize the release of ``experimental'' populations of listed species
outside their current range if the release would ``further the
conservation'' of the listed species. Section 10(j) also requires that
before authorizing the release of an experimental population, the
Secretary identify the experimental population by regulation and
determine, based on the best available information, whether or not the
experimental population is ``essential to the continued existence'' of
the listed species (see section 10(j)(2)(B)).
The U.S. Fish and Wildlife Service (USFWS) promulgated regulations
to guide its implementation of section 10(j) (see 50 CFR 17.80 through
17.84). While we do not have regulations governing the designation of
experimental populations, we considered their regulations where
appropriate in making the required determinations under section 10(j)
and in formulating this proposed rule to designate and release an
experimental population of CV spring-run Chinook salmon into the
[[Page 3383]]
San Joaquin River upstream of the Merced River confluence. Although the
USFWS regulations do not govern our proposal, the record demonstrates
that our proposal would be consistent with the criteria of those
regulations. We analyzed three key elements required by Section 10(j)
in formulating this proposed rule.
Element 1: In determining whether release of an experimental
population of spring-run Chinook salmon into the San Joaquin River
would further the conservation of the Central Valley spring-run Chinook
ESU, we considered the effects of gathering broodstock on the extant
populations of the ESU; the potential for the released population to
survive in the foreseeable future; and the potential contribution of an
experimental population to the recovery of the Central Valley spring-
run Chinook ESU.
Element 2: An appropriate means to identify the experimental
population, and
Element 3: Whether the experimental population is essential to the
continued existence of the species in the wild or not;
In order to comply with Section 10011(c) of the San Joaquin River
Restoration Settlement Act, we also considered any additional measures,
appropriate to address management concerns under local conditions, and
we considered a process for data collection and periodic review of the
status of the experimental population.
In applying the above considerations to the proposed designation
and release of the experimental population of CV spring-run Chinook
salmon into the San Joaquin River, we used the best available
information as required by section 10(j). We discuss in more detail
below how we considered each of these three elements.
Section 10(j) of the ESA requires that an experimental population
be treated as a threatened species under the ESA, with two exceptions
that apply if an experimental population is not determined to be
essential to the listed species' continued existence (i.e.,
nonessential): 1) section 7 of the ESA applies in a different manner as
described below in this paragraph, and 2) critical habitat shall not be
designated for that experimental population. If the experimental
population is determined to be nonessential, then section 10(j)
requires that we apply the section 7 consultation provisions as if the
population is a species proposed for listing. This means that the
section 7(a)(2) consultation requirement does not apply to any
experimental population of CV spring-run Chinook salmon that we
determine is nonessential. The only provisions of section 7 that apply
to a nonessential experimental population (NEP) are sections 7(a)(1)
and 7(a)(4). Section 7(a)(1) requires that Federal agencies use their
authorities in furtherance of the purposes of the ESA by carrying out
programs for the conservation of threatened and endangered species.
Section 7(a)(4) requires Federal agencies to confer, rather than
consult, with us on actions that are likely to jeopardize the continued
existence of a species proposed to be listed. The results of a
conference are advisory in nature.
Section 7 of the ESA does not apply to activities undertaken on
private land unless they are authorized, funded, or carried out by a
Federal agency. The associated take exemptions proposed below
associated with the experimental population will provide sufficient
protections to reduce effects of existing or anticipated Federal or
State actions, or private activities within or adjacent to the
experimental population area.
Will an experimental population designation further the conservation of
the species?
The ESA defines ``conservation'' as ``the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provide pursuant
to this [Act] are no longer necessary.'' We discuss in more detail
below each of the factors we considered in determining if release of an
experimental population would ``further the conservation'' of CV
spring-run Chinook: We first considered the most appropriate source of
fish to establish an experimental population. Reintroduction efforts
have the best chance for success when the donor population has life
history characteristics compatible with the anticipated environmental
conditions of the habitat into which fish will be reintroduced.
Populations found in watersheds closest to the reintroduction area are
most likely to have adaptive traits that will lead to a successful
reintroduction, and therefore, only spring-run Chinook salmon
populations found in the Central Valley will be used in establishing
the experimental population in the San Joaquin River.
Functionally independent populations of CV spring-run Chinook
salmon occur in Deer, Mill, and Butte creeks. The Feather River CV
spring-run Chinook salmon population is also supplemented by operation
of the FRFH. The Deer and Mill creek population levels are at a high
risk of extinction and special care and consideration will be used when
considering these fish as a donor source for reintroduction into the
San Joaquin River. The Butte Creek CV spring-run Chinook salmon
population is considered to be at a low risk of extinction and has the
largest run size of the three major CV spring-run Chinook salmon
populations in the Central Valley, thus it may be possible to remove
fish from this population in years with high adult returns (NMFS,
2011).
Fish produced from the FRFH specifically for the reintroduction are
proposed to be the initial source of individuals to establish an
experimental population of CV spring-run Chinook salmon in the San
Joaquin River. We would later consider diversifying the donor stock
with fish from the naturally spawning population in other streams like
Butte Creek if and when those populations can sustain the removal of
fish. Such diversification would be subject to ESA review.
In determining whether release of the proposed experimental
population would further the conservation of CV spring-run Chinook, we
also considered the potential for the released population to survive in
the foreseeable future. The Central Valley drainage as a whole is
estimated to have supported spring-run Chinook salmon returns as large
as 600,000 fish between the late 1880s and 1940s (CDFG, 1998). However,
the CV spring-run Chinook salmon runs in the San Joaquin River were
extirpated as a direct result of the completion of Friant Dam and the
associated operation of the Friant-Kern and Madera irrigation canals
which caused the river to run dry in many locations. As a result of
these impacts, the last substantial CV spring-run Chinook salmon
spawning cohort (numbering >1,900) returned in 1948 (Yoshiyama et al.,
1996). Central Valley spring-run Chinook salmon were originally most
abundant in the San Joaquin River basin where the run ascended to high-
elevation streams fed by snow-melt where they over-summered until the
fall spawning season (Yoshiyama et al., 1996). Construction of other
low elevation dams in the foothills of the Sierra Nevada on the
American, Mokelumne, Stanislaus, Tuolumne, and Merced rivers extirpated
CV spring-run Chinook salmon in these watersheds as well (CDFG, 1998).
NMFS' Public Draft Recovery Plan for Central Valley salmonids
characterizes the San Joaquin River basin below Friant Dam as having a
high potential to support a spawning population of reintroduced CV
spring[hyphen]run Chinook salmon with implementation of the San
[[Page 3384]]
Joaquin River Restoration Program (SJRRP). The Settlement establishes a
framework for accomplishing the Restoration Goal which includes channel
and structural modifications along the San Joaquin River below Friant
Dam and releases of water from Friant Dam downstream to the river's
confluence with the Merced River. Based on the available information,
we believe that implementation of these actions will create habitat
conditions in the San Joaquin River from Friant Dam to its confluence
with the Merced River sufficient to support the establishment of CV
spring[hyphen]run Chinook salmon populations.
In addition to actions undertaken by the SJRRP, there are many
Federal and State laws and regulations that will also help ensure the
establishment and survival of the experimental population by protecting
aquatic and riparian habitat. Section 404 of the Clean Water Act (CWA)
(40 CFR parts 100 through 149) requires avoidance, minimization, and
mitigation for the potential adverse effects of dredge and fill
activities within the nation's waterways. Section 404(b) of the CWA
requires that section 404 permits are granted only in the absence of
practicable alternatives to the proposed project, which would have a
less adverse impact on the aquatic ecosystem. CWA section 401 provides
protection against adverse water quality conditions. In addition,
construction and operational storm water runoff is subject to
restrictions under CWA Section 402 and state water quality laws. Also
the Magnuson-Stevens Fishery Conservation and Management Act, as
amended (16 U.S.C. 1801 et seq.), requires that Essential Fish Habitat
(EFH) be identified and Federal action agencies must consult with NMFS
on any activity which they fund, permit, or carry out that may
adversely affect EFH. Freshwater EFH for Pacific salmon in the
California Central Valley includes waters currently or historically
accessible to salmon within the Central Valley ecosystem as described
in Myers et al. (1998), which includes the area where this NEP is being
proposed.
At the state level, the California Fish and Game Code section 1600,
et seq. and the California Environmental Quality Act (Pub. Resources
Code sections 21000 et seq.) (CEQA) set forth criteria for the
incorporation of avoidance, minimization, and feasible mitigation
measures for on-going activities as well as for individual projects.
Section 1600 et seq. was enacted to provide conservation for the
state's fish and wildlife resources and includes requirements to
protect riparian habitat resources on the bed, channel, or bank of
streams and other waterways. Section 1600 et seq. requires a person to
notify the California Department of Fish and Wildlife (CDFW)
(previously called California Department of Fish and Game until Dec 31,
2012) before substantially diverting or obstructing the natural flow of
a river or stream. The CDFW then has the opportunity to determine
whether the activity may substantially adversely affect an existing
fish or wildlife resource and issue a final agreement that includes
reasonable measures necessary to protect the resource (California Fish
and Game Code Section 1602). Under CEQA, no public agency shall approve
or carry out a project without identifying all feasible mitigation
measures necessary to reduce impacts to a less than significant level,
and shall incorporate such measures absent overriding considerations.
In addition, protective measures, including programs for strategic
screening and participation in habitat conservation programs, will be
implemented in conjunction with SJRRP activities and are intended to
provide a net benefit to the reintroduction.
The SJRRP restoration actions, in combination with the protective
measures proposed in this rule, as well as compliance with existing
Federal, State and local laws, statutes, and regulations, including
those mentioned above, are expected to ensure the survivability of the
experimental population in the San Joaquin River into the foreseeable
future.
In addition, we considered the potential contribution of an
experimental population toward recovery of the CV spring-run Chinook
ESU. NMFS' draft recovery plan for Central Valley salmon and steelhead
contains specific management strategies for recovering CV spring-run
Chinook salmon that include securing existing populations and
reintroducing populations into historically occupied habitats,
including the San Joaquin River. Establishing an experimental
population of CV spring-run Chinook salmon in the San Joaquin River
that persist into the foreseeable future is expected to reduce the
species' overall extinction risk from natural and anthropogenic factors
by increasing its abundance, productivity, spatial structure, and
diversity within the Central Valley. These expected improvements in the
overall viability of CV spring-run Chinook salmon, in addition to other
actions being implemented throughout the Central Valley, will
contribute to the species recovery.
In light of the foregoing, we conclude that release of the proposed
experimental population would further the conservation of CV spring-run
Chinook salmon.
Identification of the Experimental Population
Section 10(j) requires that the experimental population be
designated only when, and at such times, as it is geographically
separate from nonexperimental populations of the same species. We are
proposing to designate the experimental population area for
experimental CV spring-run Chinook salmon population as the San Joaquin
River from its confluence with the Merced River upstream to Friant Dam,
including all sloughs, channels, and water ways that connect the San
Joaquin River and provide passage for the species. In addition, the
experimental area includes portions of the Kings River in high water
years that provide connectivity between the Kings River with the San
Joaquin River. The proposed experimental population area is within the
species historical range, but it is presently unoccupied by CV spring-
run Chinook salmon and is outside the currently defined freshwater and
estuarine boundary of the CV spring-run Chinook salmon ESU.
False pathways (water ways that salmon follow that do not lead to
spawning habitat) that fish may use as a result of restored flows have
not yet been identified; however, the SJRRP includes actions to prevent
or reduce straying to false pathways, and this proposed experimental
population designation assumes that the SJRRP will take appropriate
action to reduce losses of the experimental population caused by
undesirable straying. In addition, we will be using other means of
identifying fish that are part of the experimental population such as
marking fish with specific fin clips or other methods (e.g., coded wire
tags, genetic testing).
Is the experimental population essential to the continued existence of
the species?
Since we do not have regulations implementing section 10(j), we
considered the USFWS regulations (50 CFR 17.80(b)), which define an
essential experimental population as ``an experimental population whose
loss would be likely to appreciably reduce the likelihood of the
survival of the species in the wild.'' All other experimental
populations are classified as nonessential. While we are not bound by
the definition of ``essential'' in the USFWS regulations, we have
[[Page 3385]]
determined it is appropriate for use in this proposed rule.
In making the determination whether the proposed experimental
population of CV spring-run Chinook salmon is essential, we used the
the best available information as required by ESA section 10(j)(2)(B).
Furthermore, we considered the geographic location of the proposed
experimental population in relation to other populations of CV spring-
run Chinook salmon, the source of fish that will be used to establish
the experimental population (e.g., naturally spawning populations or
FRFH stocks), and whether the removal of individuals from any donor
population would appreciably reduce the likelihood of the existing
listed species survival and recovery in the wild.
Through our section 10 permitting authority and the section 7
consultation process, we will also ensure that the use of CV spring-run
Chinook salmon from any donor populations for release into the San
Joaquin River is not likely to jeopardize the continued existence of
the species in the wild. Currently NMFS has issued a 10(a)(1)(A) permit
along with a section 7 Biological Opinion (2012) that reached a non-
jeopardy conclusion on the first five years of broodstock collection
from FRFH.
As noted above, there are several choices for source populations
for this experimental population. Initially we will be using FRFH fish
in excess to what is needed for Feather River operations. If we
consider using CV spring-run Chinook salmon from naturally spawning
populations, we will remove only small numbers of fish from natural
populations that we consider to be viable and at a low risk of
extinction. In addition, a captive broodstock program is being
established as part of the SJRRP to augment and supplement the
establishment of experimental populations in the San Joaquin River.
Over time, we expect the captive broodstock at the San Joaquin River
conservation hatchery will produce sufficient numbers of eggs and
juveniles to support reintroduction actions, and will reduce the need
for fish to be taken from existing hatchery or natural populations in
the Sacramento River basin.
The San Joaquin River is substantially geographically separated
from the watersheds that support extant populations of CV spring-run
Chinook salmon in the Sacramento River basin. We expect that any CV
spring-run Chinook salmon reintroduced to the San Joaquin River will
imprint on this river and would therefore be unlikely to stray into the
Sacramento River basin and interact with extant populations found in
that watershed. Thus it is expected that the proposed experimental
population will exist as a population independent from those in the
Sacramento River basin and will not contribute to their survival.
Based on these considerations, we conclude that the loss of the
proposed experimental San Joaquin River population of CV spring-run
Chinook salmon is not likely to appreciably reduce the likelihood of
the survival of the species in the wild. Accordingly, this population
will be considered nonessential under this designation.
Additional Management Restrictions, Protective Measures, and Other
Special Management Considerations
The ESA defines ``take'' to mean: harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or attempt to engage in
any such conduct. For threatened species such as the proposed NEP of CV
spring-run Chinook salmon, the ESA does not specifically prohibit take,
but ESA section 4(d) (16 U.S.C. 1533(d)) provides that the Secretary
shall issue protective regulations he or she deems necessary and
advisable for species conservation. Such protective regulations may, if
appropriate, include the take prohibitions of section 9 of the ESA.
Therefore, in conjunction with our proposal to designate and
authorize the release of a CV spring-run Chinook salmon NEP in the San
Joaquin River, we also propose to promulgate protective regulations
under section 4(d) of the ESA that would apply to the NEP. To ensure
that the NEP has protections from activities that are not lawful under
Federal, State or local laws and regulations, we propose to apply all
take prohibitions listed under ESA sections 9(a)(1)(A) through
9(a)(1)(G), except for section 9(a)(1)(C) which involves the irrelevant
issue of take upon the high seas, to the experimental population when
it is within the experimental population area. Such activities include
those resulting in direct intentional take or harm or illegal
activities that result in incidental take or harm. These prohibitions
would apply to all CV spring-run Chinook salmon in the experimental
population area that have intact adipose fins as well as those that are
adipose fin-clipped.
In addition, we are proposing that the unintentional take of CV
spring-run Chinook salmon in the experimental population area that is
caused by otherwise lawful activities will be exempted from the take
prohibitions under section 9. Similarly, this proposed rule proposes to
exempt handling of fish in the experimental population for salvage/
rescue and scientific research subject to specific requirements. We are
proposing to provide an exemption from the section 9 take prohibitions
for specified scientific research activities conducted by the State of
California that is consistent with the existing state 4(d) research
programs established for listed salmon, making use of the system
already in place. Federal, State, and private-sponsored research
activities for scientific research or enhancement purposes that are not
covered under the exceptions, criteria for exceptions, and reporting
requirements or exemptions provided by NMFS-approved 4(d) programs
above, may take CV spring-run Chinook salmon in the NEP pursuant to the
specifications of an ESA section 10 permit. Section 9(a)(1)(B) take
prohibitions would not apply to ongoing research activities if an
application for an ESA section 10(a)(1)(A) permit is received by NMFS,
preferably through the NMFS online application Web site.
Questions regarding whether specific activities will constitute a
violation of the section 9 take prohibition, and general inquiries
regarding prohibitions and permits, should be directed to NMFS (see
ADDRESSES).
As noted above, we propose to prohibit the intentional take of CV
spring-run Chinook salmon in the experimental population area by
angling. We intend to work with CDFW to review fishing regulations in
the geographic area in order to minimize the impact of this prohibition
on current angling on other species. In the future, if the experimental
population becomes established, we may consider allowing limited
harvest of CV spring-run Chinook salmon in the experimental population
through a Fishery Management and Evaluation Plan developed by CDFW and
approved by NMFS.
Special Take Exemptions Outside of the Experimental Population Area
Under the SJRRSA, the reintroduction of an experimental CV spring-
run Chinook salmon population to the San Joaquin River must not impose
more than de minimis water supply reductions, additional storage
releases, or bypass flows on unwilling third parties. The SJRRSA
defines ``third party'' to mean persons or entities diverting or
receiving water pursuant to applicable State and Federal laws which
includes CVP contractors outside of the Friant Division of the CVP and
the State Water Project (SWP) contractors. Because the proposed
reintroduction under the SJRRSA cannot impose any more than de minimis
effects onto third
[[Page 3386]]
parties and some of these third parties operate outside of the proposed
experimental population area, this proposed rule also extends special
take exemptions to third parties outside of the experimental population
area geographic location. These proposed special take exemptions will
apply to fish that originate from the San Joaquin River, including the
experimental area above the confluence with the Merced River. Spring-
run Chinook salmon that are part of the threatened CV spring-run
Chinook salmon ESU (50 CFR 223.102), and are known to occur in the
area, will be exempt from take prohibitions for activities related to
diverting or receiving water pursuant to applicable State and Federal
laws, but otherwise would continue to be covered by the take
prohibitions applicable to the non-experimental part of the ESU. The
proposed special take exemptions for CV spring-run Chinook salmon that
originate from the San Joaquin River would address areas downstream
from the confluence of the Merced and San Joaquin rivers, including all
tributaries to the San Joaquin River and in the south Delta.
For take at the CVP and SWP facilities in the Delta, NMFS will
annually calculate and document the proportionate contribution of CV
spring-run Chinook salmon originating from the reintroduction to the
San Joaquin River. NMFS will document this calculation by January 15
each year and will describe the method for calculating and deducting
this share of CV spring-run Chinook salmon take from the operational
triggers and incidental take statements associated with the June 2009
Biological Opinion on the Long-term Operations of the CVP and SWP or
subsequent future Biological Opinions. The intent of this proposed
exemption is to ensure that the proposed experimental reintroduction
will not impose more than a de minimis impact on water supply, storage
releases and bypass flows for unwilling third parties due to the
reintroduction.
Process for Periodic Review
Monitoring and analysis is necessary to gauge the progress of the
proposed reintroduction program and to provide information for
decision-making and adaptive management. Fish passage, fish biology,
aquatic habitat, and conservation hatchery facility operations will be
the primary focus of the monitoring (FMP, 2009).
Fish passage monitoring will focus on addressing a variety of
issues important to successful reintroduction. These issues consist of
measuring fish passage efficiency, smolt injury and mortality rates,
and adult river passage to spawning areas. Passive integrated
transponder tags and radio tags will be used to evaluate and monitor
fish passage effectiveness. Biological evaluation and monitoring will
concentrate on adult escapement and spawning success, competition with
resident species, predation, disease transfer, smolt production,
harvest, and sustainability of natural runs. Habitat monitoring will
focus on long-term trends in the productive capacity of the
reintroduction area (i.e., habitat availability, habitat effectiveness,
riparian condition) and natural production (the number, size,
productivity, and life history diversity) of CV spring-run Chinook
salmon in the experimental population area.
Monitoring at the conservation hatchery facility will focus on
multiple issues important to the quality of fish collected and produced
for use in the reintroduction program. CDFW will be primarily
responsible for monitoring conservation hatchery facility operations.
Monitoring activities will consist mainly of tracking broodstock
sources; disease history and treatment; pre-release performance such as
survival, growth, and fish health by life stage; the numerical
production advantage provided by the conservation hatchery facility
program relative to natural production; and success of the conservation
hatchery facility program in meeting the programs objectives.
While this monitoring is being conducted for purposes of making the
reintroduction effort successful, we will use the information to also
determine if the experimental population designation is causing any
harm to CV spring-run Chinook salmon that are part of the threatened
ESU and their habitat, and then, based on this and other available
information, determine if any changes to the experimental population
designation may be warranted. Any contribution that an experimental
population might make to the overall viability of CV spring-run Chinook
salmon would be considered in future status assessments required under
the ESA.
Experimental Population Findings
Based on the best available scientific information, we have
determined that the designation and release of a NEP of CV spring-run
Chinook salmon in the San Joaquin River basin below Friant Dam will
further the conservation of CV spring-run Chinook salmon. Fish used for
the reintroduction will rely on FRFH hatchery production or fish
produced from a conservation hatchery facility from limited collection
of wild fish, and loss of some fish will not reduce the survival and
recovery of CV spring-run Chinook salmon. The collection of wild fish
will be permitted only after issuance of permits under section
10(a)(1)(A) of the ESA that ensure that any such collections will not
jeopardize the survival and recovery of the species. We have determined
that this experimental population is nonessential because it is not
necessary for the continued survival of the CV spring-run Chinook
salmon; however, the population is expected to contribute to the
recovery of CV spring-run Chinook salmon if the reintroduction is
successful. This experimental population designation and release is
being implemented in association with the reintroduction efforts called
for in the SJRRP and the Stipulation of Settlement. Actions of the
SJRRP are intended to provide habitat conditions that will be
sufficient to establish a CV spring-run Chinook salmon population in
the San Joaquin River while at the same time ensuring that no further
protections will be needed and that the reintroduction will not impact
landowners and third parties as defined by the SJRRSA.
The success of the reintroduction of CV spring-run Chinook salmon
in the experimental population area will be monitored as part of the
SJRRP. We will assess the contribution of the NEP to the status of the
species during the required five year status review of the CV spring-
run Chinook salmon ESU. This information will be used by NMFS to
determine if changes to the NEP designation may be warranted.
As previously noted, we considered the Fish and Wildlife Service's
regulations and applied them only where appropriate in this proposed
rule. We believe that our identification of the proposed experimental
population, our finding that release of the proposed experimental
population would further the conservation of CV spring-run Chinook, and
our finding that the proposed experimental population is not essential
to the continued existence of the listed species would be identical had
we strictly applied all of the Fish and Wildlife Service's 10(j)
regulations.
Public Comment
We want the final rule to be as effective and accurate as possible,
and the final EA to evaluate the potential issues and reasonable range
of alternatives. Therefore, we invite the public, State, Tribal, and
government agencies, the scientific community, environmental groups,
industry, local landowners, and all interested parties to provide
comments on the proposed rule
[[Page 3387]]
and EA. We request that submitted comments be relevant to the
reintroduction and experimental population designation and not include
comments on the SJRRP as a whole, which is beyond the scope of the
action described in this proposed rule. Comments should be as specific
as possible, provide relevant information or suggested changes, the
basis for the suggested changes, and any additional supporting
information where appropriate. For example, you should tell us the
numbers of the sections or paragraphs that are unclearly written, which
sections or sentences are too long, the sections where you feel lists
or tables would be useful, etc.
Prior to issuing a final rule, we will take into consideration the
comments and supporting materials received. The final rule may differ
from the proposed rule based on this information and other
considerations. We are interested in all public comments, but are
specifically interested in obtaining feedback on:
(1) The geographical boundary of the designated experimental
population.
(2) The extent to which the experimental population would be
affected by current or future Federal, State, or private actions within
or adjacent to the experimental population area.
(3) Any necessary management restrictions, protective measures, or
other management measures that we may have not considered.
(4) The extent to which we have has provided protections for third
parties as required by the SJRRSA.
(5) Whether we should propose the experimental population as
nonessential.
(6) Whether the proposed designation furthers the conservation of
the species and we have used the best available science in making this
determination.
Information Quality Act and Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review pursuant to the
Information Quality Act (Section 515 of Pub. L. 106-554) in the Federal
Register on January 14, 2005 (70 FR 2664). The Bulletin established
minimum peer review standards, a transparent process for public
disclosure of peer review planning, and opportunities for public
participation with regard to certain types of information disseminated
by the Federal Government. The peer review requirements of the OMB
Bulletin apply to influential or highly influential scientific
information disseminated on or after June 16, 2005. There are no
documents supporting this proposed rule that meet this criteria.
Classification
Executive Order 12866
This rule has been determined to be not significant under E.O.
12866.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.):
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities.
We are certifying that this rule would not have a significant
economic effect on a substantial number of small entities. The
following discussion explains our rationale. The effect of the proposal
would be to avoid the need for affected entities, including small
entities, to obtain ESA permits or authorization to conduct otherwise
lawful activities as a result of reintroduction of CV spring-run
Chinook salmon to the San Joaquin River. We do not collect the data to
be able to quantify the number or type of small entities within the
area affected by this proposed rule. If this proposal is adopted, the
area affected by this rule includes the San Joaquin River from Friant
Dam to Mossdale County Park, San Joaquin County, California and
associated water ways accessible to anadromous fish. The NEP area would
include the San Joaquin River from Friant Dam downstream to the
confluence with the Merced River. Private land ownership is significant
in the NEP area. Land uses are primarily agriculture, recreation, and
tourism.
This proposed rule authorizes incidental take of CV spring-run
Chinook salmon within the NEP area. The regulations implementing the
ESA define ``incidental take'' as take that is incidental to, and not
the purpose of, the carrying out of an otherwise lawful activity.
Intentional take for negligent, or as a result of unlawful, activities
would not be permitted. Intentional take other than for conservation
purposes as described in the special rule are not authorized unless for
research or educational purposes, which would require a section 10
permit under the ESA. Because of the substantial regulatory relief
provided by NEP designations, we do not expect this rule to have any
significant effect on recreational, agricultural, or development
activities within the NEP area.
Additionally, the proposal would provide specific regulatory relief
to persons or entities diverting or receiving water pursuant to
applicable State and Federal laws, such that the reintroduction of CV
spring-run Chinook salmon would not impose more than de minimus: Water
supply reductions, additional storage releases, or bypass flows on
these persons or entities, if unwilling. These exemptions include
Central Valley Project contractors outside of the Friant Division of
the Central Valley Project and the State Water Project. Because this
proposal would require no additional regulatory requirements on small
entities and would provide regulatory relief for activities within the
affected area, the Chief Council for Regulation certified that this
proposed rule would not have a significant economic effect on a
substantial number of small entities.
Executive Order 12630
In accordance with E.O. 12630, the proposed rule does not have
significant takings implications. A takings implication assessment is
not required because this proposed rule: (1) Would not effectively
compel a property owner to have the government physically invade their
property, and (2) would not deny all economically beneficial or
productive use of the land or aquatic resources. This proposed rule
would substantially advance a legitimate government interest
(conservation and recovery of a listed fish species) and would not
present a barrier to all reasonable and expected beneficial use of
private property.
Executive Order 13132
In accordance with E.O. 13132, we have determined that this
proposed rule does not have federalism implications as that termed is
defined in E.O. 31312.
[[Page 3388]]
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
OMB regulations at 5 CFR 1320, which implement provisions of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal
agencies obtain approval from OMB before collecting information from
the public. A Federal agency may not conduct or sponsor, and a person
is not required to respond to, a collection of information unless it
displays a currently valid OMB control number. This proposed rule does
not include any new collections of information that require approval by
OMB under the Paperwork Reduction Act.
National Environmental Policy Act
In compliance with all provisions of the National Environmental
Policy Act of 1969 (NEPA), we have analyzed the impact on the human
environment and considered a reasonable range of alternatives for this
proposed rule. We have prepared a draft EA on this proposed action and
have made it available for public inspection (see ADDRESSES section).
All appropriate NEPA documents will be finalized before this rule is
finalized.
Government-to-Government Relationship With Tribes (E.O. 13175)
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, outlines the responsibilities of the Federal Government in
matters affecting tribal interests. If we issue a regulation with
tribal implications (defined as having a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes) we
must consult with those governments or the Federal Government must
provide funds necessary to pay direct compliance costs incurred by
tribal governments.
There are no tribally owned or managed lands included in the
experimental population area. We have invited all possibly impacted
tribes (letter dated November, 15, 2010, from Maria Rea, Central Valley
Office Supervisor, NMFS) to discuss the proposed rule at their
convenience should they choose to have a government-to-government
consultation.
References Cited
A complete list of all references cited in this proposed rule is
available upon request from National Marine Fisheries Service office
(see FOR FURTHER INFORMATION CONTACT).
Dated: January 9, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports.
For the reasons set out in the preamble, we propose to amend part
223, subpart B of chapter 1, title 50 of the Code of Federal
Regulations, as set forth below.
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. Add Sec. 223.301 paragraph (b) to read as follows:
Sec. 223.301 Special rules--marine and anadromous fishes.
* * * * *
(b) San Joaquin River CV spring-run Chinook Salmon Experimental
Population (Oncorhynchus tshawytscha).
(1) The San Joaquin River CV spring-run Chinook salmon population
identified in paragraph (b)(5) of this section is designated as a
nonessential experimental population under section 10(j) of the ESA.
(2) Prohibitions. The prohibitions of section 9(a)(1) of the ESA
(16 U.S.C. 1538 (a)(1)) relating to endangered species apply to fish
that are part of the threatened, nonessential experimental population
of CV spring-run Chinook salmon identified in paragraph (a)(4) of this
section.
(3) Allowable take of CV spring-run Chinook salmon in the
Experimental Population Area:
(i) Any taking of CV spring-run Chinook salmon provided that it is
unintentional, not due to negligent conduct, and incidental to, and not
the purpose of, the carrying out of an otherwise lawful activity.
Examples of otherwise lawful activities include recreation,
agriculture, municipal usage, and other similar activities, which are
carried out in accordance with Federal, State, and local laws and
regulations.
(ii) Any taking of CV spring-run Chinook salmon by an employee or
designee of NMFS, the USFWS, other Federal land management agencies,
the California Department of Fish and Wildlife, or any other
governmental entity if in the course of their duties it is necessary
to: aid a sick, injured or stranded fish; dispose of a dead fish; or
salvage a dead fish which may be useful for scientific study. Any
agency acting under this provision must report to NMFS (see ADDRESSES
section) the numbers of fish handled and their status on an annual
basis.
(iii) Any taking of CV spring-run Chinook salmon for scientific
research or enhancement purposes by a person or entity with a valid
section 10(a)(1)(A) permit issued by NMFS and a valid permit issued by
the CDFW.
(iv) Any taking of CV spring-run Chinook salmon for scientific
research purposes by the CDFW provided that:
(A) Scientific research activities involving purposeful take are
conducted by employees or contractors of CDFW or as a part of a
monitoring and research program overseen by or coordinated with CDFW.
(B) CDFW provides for NMFS' review and approval a list of all
scientific research activities involving direct take planned for the
coming year, including an estimate of the total direct take that is
anticipated, a description of the study design, including a
justification for taking the species and a description of the
techniques to be used, and a point of contact.
(C) CDFW annually provides to NMFS the results of scientific
research activities directed at fish in the experimental population,
including a report of the direct take resulting from the studies and a
summary of the results of such studies.
(D) Scientific research activities that may incidentally take fish
in the experimental population are either conducted by CDFW personnel,
or are in accord with a permit issued by the CDFW.
(E) CDFW provides NMFS annually, for its review and approval, a
report listing all scientific research activities it conducts or
permits that may incidentally take fish in the experimental population
during the coming year. Such reports shall also contain the amount of
incidental take occurring in the previous year's scientific research
activities and a summary of the results of such research.
(F) Electro fishing in any body of water known or suspected to
contain fish in the experimental population is conducted in accordance
with NMFS ``Guidelines for Electrofishing Waters Containing Salmonids
Listed Under the Endangered Species Act'' (NMFS, 2000a).
[[Page 3389]]
(G) NMFS' approval of a research program shall be a written
approval by NMFS Northwest or Southwest Regional Administrator.
(4) Take of CV spring-run Chinook salmon in Experimental Population
Area that is not allowed:
(i) Except as expressly allowed in paragraph (3) of this section,
the taking of CV spring-run Chinook salmon is prohibited within the
experimental population area. This includes the taking of CV spring-run
Chinook salmon by all activities that are illegal or not allowed under
Federal, State or local laws and regulations.
(ii) No person shall possess, sell, deliver, carry, transport,
ship, import, or export, by any means whatsoever, CV spring-run Chinook
salmon from the nonessential, experimental population area in violation
of this paragraph and paragraph (2) of this section.
(5) San Joaquin River CV Spring-run Chinook Salmon Experimental
Population Area.
The geographic boundary defining the experimental population of CV
spring-run Chinook salmon includes the San Joaquin River from Friant
Dam downstream to its confluence with the Merced River as well as all
sloughs, channels, and waterways connected with the San Joaquin River
that allow for CV spring-run Chinook salmon passage. Those portions of
the Kings River that connect with the San Joaquin River during high
water years are also part of the experimental population area. The
experimental population area is within the historic range of the
species, but is outside of its current range. All CV spring-run Chinook
salmon in this defined experimental population area are considered part
of the San Joaquin River experimental population.
(6) Special Take Exemption Outside of the Experimental Population
Area:
(i) Any taking of CV spring-run Chinook salmon in those portions of
the lower San Joaquin River and its tributaries downstream from its
confluence with the Merced River to Mossdale County Park in San Joaquin
County, by otherwise lawful activities related to diverting or
receiving water pursuant to applicable State and Federal laws.
(ii) Any taking of CV spring-run Chinook salmon at the CVP and SWP
projects in the Delta that originates from reintroduction to the San
Joaquin River. NMFS will annually determine by January 15 the share of
take at the CVP and SWP facilities that originates from the
reintroduction to the San Joaquin River. This determination will
provide a methodology for deducting San Joaquin River origin spring-run
Chinook salmon from the operational triggers and incidental statements
associated with any biological opinion that is in effect at the time
for operations of the CVP and SWP facilities.
[FR Doc. 2013-00809 Filed 1-15-13; 8:45 am]
BILLING CODE 3510-22-P