Endangered and Threatened Wildlife and Plants; Critical Habitat Determination for the Delta Smelt

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