Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Sacramento Splittail

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC26

Endangered and Threatened Wildlife and Plants; Determination of

Threatened Status for the Sacramento Splittail

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine

threatened status for the Sacramento splittail (Pogonichthys

macrolepidotus) pursuant to the Endangered Species Act of 1973, as

amended (Act). Sacramento splittail occur in Suisun Bay and the San

Francisco Bay-Sacramento-San Joaquin River Estuary (Estuary) in

California. The Sacramento splittail has declined by 62 percent over

the last 15 years. This species is primarily threatened by changes in

water flows and water quality resulting from the export of water from

the Sacramento and San Joaquin rivers, periodic prolonged drought, loss

of shallow-water habitat, introduced aquatic species, and agricultural

and industrial pollutants. Designation of critical habitat is not

prudent at this time. This rule implements the protection and recovery

provisions afforded by the Act for Sacramento splittail.

EFFECTIVE DATE: March 10, 1999.

ADDRESSES: The complete file for this rule is available for public

inspection, by appointment, during normal business hours at the

Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service,

3310 El Camino Avenue, Suite 130, Sacramento, CA 95821-6340.

FOR FURTHER INFORMATION CONTACT: Michael Thabault, Deputy Assistant

Field Supervisor, U.S. Fish and Wildlife Service (see ADDRESSES

section) (telephone 916-979-2710).

SUPPLEMENTARY INFORMATION:

Background

As used in this rule, the term ``Delta'' refers to all tidal waters

contained within the legal definition of the San Francisco Bay-

Sacramento-San Joaquin River Delta, as delineated by section 12220 of

the State of California's Water Code. Generally, the Delta is contained

within a triangular area that extends south from the City of Sacramento

to the confluence of the Stanislaus and San Joaquin rivers at the

southeast corner and Chipps Island in Suisun Bay. The term ``Estuary,''

as used in this rule, refers to tidal waters contained in the

Sacramento and San Joaquin rivers, the Delta, and San Pablo and San

Francisco bays. ``Export facilities,'' as used in this rule, refer to

the Central Valley Project and State Water Project water export

facilities in the South Delta.

Sacramento splittail were first described in 1854 by W.O. Ayres as

Leuciscus macrolepidotus and by S.F. Baird and C. Girard as

Pogonichthys inaeqilobus. Although Ayres' species description is

accepted, the species was assigned to the genus Pogonichthys in

recognition of the distinctive characteristics exhibited by the two

California splittail species P. ciscoides and P. macrolepidotus

(Hopkirk 1973). Pogonichthys ciscoides, endemic to Clear Lake, Lake

County, California, has been extinct since the early 1970s. The

Sacramento splittail (hereafter splittail) represents the only existing

species in its genus in California.

The name splittail refers to the distinctive tail of the fish.

Pogon-ichthys means bearded fish, referring to the small barbels

(whisker-like sensory organs) on the mouth of the fish, unusual in

North American cyprinids. Macro-lepidotus means large-scaled. The

splittail is a large cyprinid fish that can exceed 40 centimeters (cm)

(16 inches (in)) in length (Moyle 1976). Adults are characterized by an

elongated body, distinct nuchal hump (on the back of the neck), and

small, blunt head, usually with barbels at the corners of the slightly

subterminal mouth. The enlarged dorsal lobe of the caudal fin

distinguishes the splittail from other minnows in the Central Valley of

California. Splittail are dull, silvery-gold on the sides and olive-

gray dorsally. During spawning season, pectoral, pelvic, and caudal

(tail) fins are tinged with an orange-red color. Males develop small

white nuptial tubercles on the head. Breeding tubercles (nodules) also

appear on the base of the fins (Moyle in prep).

Splittail are native to California's Central Valley, where they

were once widely distributed (Moyle 1976). Historically, splittail were

found as far north as Redding on the Sacramento River (at the Battle

Creek Fish Hatchery in Shasta County), as far south as the present-day

site of Friant Dam on the San Joaquin River, and up the tributaries of

the Sacramento River as far as the current Oroville Dam site on the

Feather River and Folsom Dam site on the American River (Rutter 1908).

Recreational anglers in Sacramento reported catches of 50 or more

splittail per day prior to the damming of these rivers (Caywood 1974).

Splittail were captured in the past in southern San Francisco Bay and

at the mouth of Coyote Creek in Santa Clara County, but they are no

longer present there (Moyle in prep). The species was part of the

Central Valley Native American diet (Caywood 1974).

In recent times, dams and diversions have increasingly prevented

splittail from upstream access to the large rivers, and the species is

now restricted to a small portion of its former range (Moyle and

Yoshiyama 1992). However, during wet years, they migrate up the

Sacramento River as far as the Red Bluff diversion dam in Tehama

County, and into the lowermost reaches of the Feather and American

rivers (Moyle in prep, Jones and Stokes 1993, Charles Hanson, State

Water Contractors, in litt. 1993). Small numbers of splittail have

recently been found in the upper Sacramento and San Joaquin rivers and

their tributaries (Baxter 1995). Recent surveys of San Joaquin Valley

streams found splittail in the San Joaquin River below its confluence

with the Merced River, mainly following wet winters (Moyle in prep).

Splittail have also been recorded using the Sutter and Yolo bypasses

for spawning areas during wet winters (Sommer et al. 1997). Successful

spawning has been recorded in the lower Tuolumne River during wet years

in the 1980s, as well as in 1995. Both adults and juveniles were

observed at Modesto, 11 kilometers (km) (6.6 miles (mi)) upriver from

the mouth of the river (Moyle in prep). However, all of the sightings

reported above were during wet years when splittail were able to

exploit more spawning habitat. Except for very wet years, the species

is for the most part now confined to the Delta, Suisun Bay, Suisun

Marsh, and Napa Marsh. In the Delta, they are most abundant in the

north and west portions when populations are low, but are more evenly

distributed throughout the Delta following years of successful

reproduction (Sommer et al. 1997).

Splittail are relatively long-lived, frequently reaching 5 to 7

years of age. An analysis of hard parts of the splittail indicate that

larger fish may be 8 to 10

[[Page 5964]]

years old (Moyle in prep). Females are highly fecund, with the largest

females producing over 250,000 eggs (Daniels and Moyle 1983).

Populations fluctuate annually depending on spawning success, which is

highly correlated with freshwater outflow and the availability of

shallow-water habitat with submerged vegetation (Daniels and Moyle

1983). Fish usually reach sexual maturity by the end of their second

year. The onset of spawning is associated with rising water levels,

increasing water temperatures, and increasing day length. Peak spawning

occurs from the months of March through May, although records of

spawning exist for late January to early July (Wang 1986). In some

years, most spawning may take place within a limited period of time.

For instance, in 1995, a year of extraordinarily successful spawning,

most splittail spawned over a short period in April, even though larval

splittail were captured from February through early July (Moyle in

prep). Within each spawning season older fish reproduce first, followed

by younger individuals (Caywood 1974). Spawning occurs over flooded

vegetation in tidal freshwater and euryhaline habitats of estuarine

marshes and sloughs and slow-moving reaches of large rivers. Larvae

remain in shallow, weedy areas close to spawning sites for 10 to 14

days and move into deeper water as they mature and swimming ability

increases (Wang 1986 and Sommer et al. 1997).

Splittail are benthic (bottom) foragers. In Suisun Marsh, they feed

primarily on opossum shrimp (Neomysis mercedis, and presumably, the

exotic Acanthomysis spp. as well), benthic amphipods (Corophium), and

harpactacoid copepods, although detrital (non-living and detached

organic) material makes up a large percentage of their stomach contents

(Daniels and Moyle 1983). In the Delta, clams, crustaceans, insect

larvae, and other invertebrates also are found in the diet. Predators

include striped bass (Morone saxatilis) and other piscivores (Moyle

1976).

In recent years, splittail have been found most often in slow

moving sections of rivers and sloughs and dead-end sloughs (Moyle et

al. 1982, Daniels and Moyle 1983). Reports from the 1950s, however,

mention Sacramento River spawning migrations and catches of splittail

during fast tides in Suisun Bay (Caywood 1974). Because they require

flooded vegetation for spawning and rearing, splittail are frequently

found in areas subject to flooding. Historically, the major flood

basins distributed throughout the Sacramento and San Joaquin valleys

provided spawning and rearing habitat. These flood basins have all been

reclaimed or modified for flood control purposes (e.g., Yolo and Sutter

bypasses). Although primarily a freshwater species, splittail can

tolerate salinities as high as 10 to 18 parts per thousand (ppt) (Moyle

1976, Moyle and Yoshiyama 1992). California Department of Fish and Game

(CDFG) survey data from 1979 through 1994 indicate that the highest

abundances occurred in shallow areas of Suisun and Grizzly bays.

Recent research indicates that splittail will use the Yolo and

Sutter bypasses during the winter and spring months for foraging and

spawning (Sommer et al. 1997). However, the Yolo Bypass may only be

used by splittail during wet winters, when water from the Sacramento

River over-tops the Fremont Weir and spills over the Sacramento Weir

into the Bypass. In 1998, the Yolo and Sutter bypasses provided good

habitat for fish, particularly splittail, when they were flooded for

several weeks in March and April. In order to provide spawning habitat

for splittail, water must remain on the bypasses until fish have

completed spawning, and larvae are able to swim out on their own,

during the draining process.

The decline in splittail abundance has taken place during a period

of increased human-induced changes to the seasonal hydrology of the

Delta, especially the increased exports of freshwater. These changes

include alterations in the temporal, spatial, and relative ratios of

water diverted from the system. These hydrological effects, coupled

with severe drought years, introduced aquatic species, the loss of

shallow-water habitat to reclamation activities, and other human-caused

actions, have reduced the species' capacity to recover from natural

seasonal fluctuations in hydrology for which it was adapted.

Analyses of survey data collected from 1967 to 1993 (Meng 1993,

Meng and Moyle 1995) and data from 1967 to 1997 by Service, CDFG, and

University of California at Davis biologists from several different

studies indicate the following results--(1) Overall, splittail

abundance indices have declined. Meng and Moyle (1995) demonstrated

that on average, splittail have declined in abundance by 60 percent

through 1993. The CDFG updated these data to include the most current

data available and provided to the Service. The CDFG calculated the

data using the updated information. The results were similar. These

updated data demonstrate that on average, splittail have declined

significantly in abundance by 50 percent since 1984. The greatest

declines (over 80 percent) were found from studies that sampled the

shallow Suisun Bay area, the center of the range of the species (Meng

and Moyle 1995). The updated information also show a significant

decline (43 percent) for the studies that sampled the shallow Suisun

Bay area. A study that began in 1980 in the lower Estuary, at the

outermost edge of splittail range, found the lowest percent decline (20

percent) (CDFG unpublished data) through 1993. The analysis completed

on the updated data also showed the smallest decline for this study (6

percent). The number of splittail young taken at State and Federal

pumping facilities (measured as number of individuals per acre-foot of

water pumped), as of 1993, had declined 64 percent since 1984. With the

updated data, the number of splittail young taken at State and Federal

pumping facilities demonstrated a 97 percent increase. This percent

increase is due to the unusually high salvage that occurred during

1995.

We estimate splittail populations to be 35 to 60 percent of what

they were in the 1940s, and these estimates may be conservative (Moyle

in prep). CDFG midwater trawl data indicate a decline from the mid-

1960s to the late 1970s, followed by a resurgence, with yearly

fluctuations, through the mid-1980s. From the mid-1980s through 1994,

splittail numbers have declined in the Delta, with some small increases

in various years. This decline is also demonstrated in the updated CDFG

data.

(2) Overall splittail abundances vary widely among years. Sommer et

al. 1997 also found that splittail recruitment success fluctuates

widely from year to year and over long periods of time. During dry

years abundance is typically low. During the dry years of 1980, 1984,

1987, and 1988 through 1992, splittail abundance indices for young-of-

the-year were low, indicating poor spawning success. Additionally, all

year class abundances were low during these years. In 1994, the fourth

driest year on record, all splittail indices were extremely low.

We believe wet years provide essential habitat for splittail and

allow populations to rebound from dry years. Successful reproduction in

splittail is often highly correlated with wet years. Large pulses of

young fish were observed in wet years 1982, 1983, 1986, and 1995. In

1995, one of the wettest years in recent history, an increase in all

indices was recorded, as in 1986, which was another wet year following

a dry year. However, young of the year taken per unit effort (for

example, either the number of fish per net that is towed or

[[Page 5965]]

the number of fish per volume of water sampled) has actually declined

in wet years, steadily from a high of 12.3 in 1978 to 0.3 in 1993. The

updated data from CDFG demonstrate this same decline in wet years, from

37.3 in 1978 to 0.6 in 1993. The abundance indices of splittail during

the years of 1995, 1996, and 1997 were 44.5, 2.1, and 2.6,

respectively. Year 1995 was a very wet year and splittail abundances

were high. Years 1996 and 1997 were wet years, yet abundance indices

were low. However, overall splittail declines remain high (82 percent/

43 percent with updated data) in the shallow-water Suisun Bay area, the

center of its distribution.

We believe high abundance indices in 1995 are an artifact of the

highly unusual hydrological conditions that occurred. Therefore, we

also calculated all of the percent declines, as stated above, without

the 1995 abundance indices in the analysis. The overall decline is 67

percent. The decline from the studies in the shallow Suisun Bay area

without 1995 is 80 percent. For the study in the lower Estuary, the

decline is 39 percent. The salvage data collected at both the State and

Federal pumping facilities demonstrate a 22 percent decline. Other than

1995, the salvage data include 1996 and 1997.

(3) A strong relationship exists between young-of-the-year

abundance and outflow (i.e., river outflow into San Francisco Bay after

water exports are removed). As outflow increases, annual abundance of

young-of-the-year splittail increases. Changes in outflow explain 55 to

72 percent of the changes seen in young-of-the-year splittail

abundance, depending on which survey data are analyzed.

(4) Splittail are most abundant in shallow areas of Suisun and

Grizzly bays where they generally prefer low-salinity habitats.

Salinities in Suisun and Grizzly bays increase when, as a result of

water exports or drought conditions, the mixing zone (the freshwater-

saltwater interface) shifts upstream.

(5) Concentration of splittail in shallow areas suggests that they

are particularly vulnerable to reclamation activities, such as

dredging, diking, and filling of wetlands.

The above data indicate that splittail abundances vary widely in

response to environmental conditions, but the general population

numbers are declining. The following are some reasons why the species

is in decline. The splittail is primarily threatened by the altered

hydraulics and reduced Delta outflow caused by the export of freshwater

from the Sacramento and San Joaquin rivers through operation of the

State and Federal water projects. These operations include not only the

export of water from the Delta but also diversion of water to storage

during periods of high run-off, which reduce instream flows and

available submerged aquatic habitat for spawning and rearing.

Additional threats to this species include--

(1) Direct and indirect mortality at power plants and in-Delta

water diversion sites;

(2) Reduced river flows and changes in the seasonal patterns of

flows in the Sacramento and San Joaquin rivers and their tributaries;

(3) The loss of spawning and nursery habitat as a consequence of

draining and diking for agriculture;

(4) The loss of shallow-water habitat due to levee slope

protection, marina construction, and other bank oriented construction

activities;

(5) The reduction in the availability of highly productive

brackish-water habitat;

(6) The presence of toxic substances, especially agricultural and

industrial chemicals and heavy metals in their aquatic habitat;

(7) Human and natural disturbance of the food web through altered

hydrology and introduction of exotic species;

(8) Flood control operations that strand eggs, larvae, juveniles,

and adults;

(9) The increase in severity of these effects by six years of

drought; and

(10) Entrainment (pulling) of fish through unscreened or

inadequately screened municipal and agricultural diversions.

Previous Federal Action

We included the Sacramento splittail as a category 2 candidate

species for possible future listing as endangered or threatened in the

January 6, 1989, Animal Notice of Review (54 FR 554). Category 2

candidates were defined as those species for which information in our

possession indicated that proposing to list as endangered or threatened

was possibly appropriate, but for which conclusive data on biological

vulnerability and threats were not currently available to support

proposed rules. We discontinued the use of multiple candidate

categories on February 28, 1996 (61 FR 7596), and species meeting the

definition of the former category 2 are no longer considered

candidates.

On November 5, 1992, we received a petition from Mr. Gregory A.

Thomas of the Natural Heritage Institute to add the Sacramento

splittail to the List of Endangered and Threatened Wildlife and to

designate critical habitat for this species in the Sacramento and San

Joaquin rivers and associated estuary. Mr. Thomas identified eight

organizations as co-petitioners, including the American Fisheries

Society, the Bay Institute of San Francisco, the Natural Heritage

Institute, the Planning and Conservation League, Save San Francisco Bay

Association, Friends of the River, the San Francisco Baykeeper, and the

Sierra Club. We published a 90-day finding on July 6, 1993 (58 FR

36184), that the petition presented substantial information indicating

that the requested action may be warranted. We initiated a status

review and analyzed available data on this species (Meng 1993).

On January 6, 1994, we published a proposed rule to list the

splittail as a threatened species and requested public comment (59 FR

862). The proposed rule constituted a 12-month finding that the

petitioned action was warranted, in accordance with section 4(b)(3)(B)

of the Act.

On January 10, 1995, we published in the Federal Register (60 FR

2638) a notice of a 6-month extension to make a final listing

determination and reopened a 45-day public comment period on the

proposed rule to list the splittail. The basis for this extension was

to address differences of scientific opinion concerning the status of

splittail upstream of the Delta, especially the existence of a resident

population upstream of the Delta. In April 1995, subsequent to the

close of the extension period, a moratorium on the processing of all

final listing proposals was established by Congress in Public Law 104-

6. The moratorium was lifted on April 26, 1996. As mandated by the

moratorium, we conducted no actions to finalize the proposed rule

during the period April 1995 to April 1996.

As described in detail below, we reopened the comment period on May

18, 1998. We solicited the latest information regarding the abundance

and distribution of the species. Additionally, we requested comments

concerning the publication, ``Resilience of Splittail in the

Sacramento-San Joaquin Estuary'' (Sommer et al. 1997).

The processing of this final rule follows our final listing

priority guidance for fiscal years 1998 and 1999 published in the

Federal Register on May 8, 1998 (63 FR 25502). The guidance clarifies

the order in which we will process rulemakings giving highest priority

(Tier 1) to processing emergency rules to add species to the Lists of

Endangered and Threatened Wildlife and Plants; second priority (Tier 2)

to processing final determinations on proposals to add

[[Page 5966]]

species to the lists, processing new listing proposals, processing

administrative findings on petitions (to add species to the lists,

delist species, or reclassify listed species), and processing a limited

number of proposed and final rules to delist or reclassify species; and

third priority (Tier 3) to processing proposed and final rules

designating critical habitat. Processing of this final rule is a Tier 2

action.

Summary of Comments and Recommendations

In the January 6, 1994, proposed rule (59 FR 862), we requested all

interested parties to submit factual reports or information, that might

contribute to the development of a final rule. We contacted State

agencies, county governments, Federal agencies, scientific

organizations, and other interested parties and requested comments. We

held public hearings on the proposed splittail listing in conjunction

with hearings on two other proposed Federal actions, the designation of

critical habitat for delta smelt (Hypomesus transpacificus) (59 FR

852), and the United States Environmental Protection Agency's (USEPA's)

water quality standards for the Estuary (59 FR 810). We published

newspaper notices of the public hearings on February 4, 1994, in the

Sacramento Bee, Fresno Bee, Los Angeles Times, and San Francisco

Chronicle, all of which invited general public comment. We held public

hearings on February 23, 1994, in Fresno; on February 24, 1994, in

Sacramento; on February 25, 1994, in San Francisco; and on February 28,

1994, in Irvine. At each meeting, we took testimony from 1 p.m. to 4

p.m. and 6 p.m. to 8 p.m.

During the 3-month comment period from January 6 to March 7, 1994,

we received comments (i.e., letters and oral testimony) from 133

individuals, organizations, or government agencies. Many of these

comments were given at joint public hearings for the combined Federal

rulemaking package for the Sacramento-San Joaquin Delta (including the

proposal to list the Sacramento splittail, the proposal to designate

critical habitat for the delta smelt, and final water quality standards

for the Delta being proposed by the USEPA). Only 13 of the 133

commenters addressed the proposed rule to list the Sacramento

splittail. Four of the 13 commenters that specifically addressed the

proposed rule to list the Sacramento splittail provided oral testimony

at the public hearings. Of the 13 commenters mentioned above, nine

supported the listing of the splittail, two opposed the listing, and

others provided comments considered as neutral. Five conservation

organizations (or branches thereof), one sport fishing organization,

two interested parties, and a Federal agency (the Bureau of Reclamation

(BOR)) supported the proposed listing. The California Department of

Water Resources (DWR) and the State Water Contractors opposed the

proposed listing. We received no additional expert opinions from

independent specialists concerning pertinent scientific or commercial

data about the splittail.

On August 4, 1994, we received a letter dated August 3, 1994, from

the State Water Contractors requesting a 6-month extension on the

listing determination. The reasons provided in the request for

extension were the same as those submitted during the public comment

period, addressed below.

We granted a 6-month extension to address the status of splittail

upstream of the Delta, and the importance of any such splittail to the

population as a whole. Therefore, we reopened the public comment period

for 45 days, beginning January 10, 1995, and ending February 24, 1995.

During this second comment period we received one additional comment

letter that opposed the listing of the splittail. The comment letter

addressed this issue in part.

On March 19 and March 20, 1998, the DWR and the State Water

Contractors, respectively, requested the comment period be reopened.

The basis of this request was that substantial data had been collected

since 1995 regarding the abundance and distribution of the splittail.

We believe that consideration of this and any new information is

significant to the final determination of the status of the Sacramento

splittail. For this reason, we sought information concerning abundance

and distribution data for this species from 1995-1997. Specifically, we

sought comments regarding information presented in the publication,

``Resilience of Splittail in the Sacramento-San Joaquin Estuary''

(Sommer et al. 1997), and how the results affect our recommendation for

listing the Sacramento splittail as a threatened species. The comment

period was opened on May 18, 1998, and closed on July 17, 1998. We

received comments from eight respondents, whose comments are summarized

below.

The written comments and oral statements, questioning or opposing

the listing of the splittail, or otherwise providing information,

obtained during the public hearings and comment periods are combined

into general issues that are summarized, discussed and responded to

below. Most of the comments supporting the listing did not provide any

additional information, so we have not prepared a discussion or

response to these comments.

Issue 1: A respondent commented that our statement about splittail

decline was based on data regarding splittail juveniles. The respondent

argued that adult splittail are abundant and that our reliance on a

limited portion of the year classes for a listing determination is

inappropriate.

Service Response: We have reviewed the seven data sets used in the

status review (Meng 1993). These data sets include--(1) a fall midwater

trawl survey in the upper Estuary by CDFG; (2) a monthly midwater and

otter trawl in the lower Estuary by CDFG (San Francisco Bay-Outflow

Study, hereafter Bay Study); (3) a monthly otter trawl survey of Suisun

Marsh (a tidal marsh next to Suisun Bay) by the University of

California; (4) a midwater trawl survey that we conducted at Chipps

Island in Suisun Bay; (5) a midwater trawl survey that we conducted in

the Sacramento River; (6) a beach seine survey that we conducted in the

Delta and Sacramento River; and (7) fish salvage data collected by CDFG

and the BOR at the State and Federal pumping facilities located in the

south Delta. The beach seine survey and Sacramento River midwater trawl

were not used in the analysis of abundance trends because several years

of data were missing. (See next comment for criteria used to identify

data sets suitable for inclusion in abundance trend analysis.) Of the

surveys that were used to establish abundance trends, ratios of young-

of-the-year to adults were approximately equal for three out of five

surveys (fall midwater trawl, Bay Study, and Suisun Marsh). Of the

remaining surveys, the Chipps Island trawl was dominated by young-of-

the-year, and fish salvage sampled five times as many young as adults.

We calculated percent declines independently for each survey. When the

two surveys dominated by young-of-the-year are removed from the

analysis, overall average percent decline remains the same. Therefore,

the contention that splittail adults are abundant, and that our

analysis relied on a particular age-class of the species, is unfounded.

Issue 2: One respondent maintained that the studies we relied on

were limited geographically (i.e., to the Estuary) and that splittail

may occupy a wider range. Conversely, another respondent commented that

the Estuary is the principal habitat of splittail and virtually all

splittail are found in the Estuary for the first 2 years of their

lives.

[[Page 5967]]

There was also disagreement about the gear types used for sampling. One

respondent held that they were not appropriate, whereas another

respondent stated that gear used by the studies, (i.e., bottom and

midwater trawls) captured all sizes of splittail. The respondent that

questioned gear suitability also commented that studies used in the

listing determination were designed to capture striped bass, were

limited in their ability to sample shallow and inshore habitats, and

that the use of the CDFG abundance index was inappropriate.

Service Response: We used several criteria to determine if a data

set could be incorporated into the analysis of trends in splittail

abundance and distribution. Data had to be collected for at least 10

consecutive years and effort had to be relatively constant or a core

data set had to be available to extract for analysis. A core data set

of at least 10 consecutive years provides the necessary information to

conduct an analysis of long term trends in abundance. One respondent

referred to the use of two data sets that sampled upstream of the

Estuary. These data sets were not included in the analysis of abundance

trends because time of year of sampling varied, sampling sites varied,

and some years of sampling were missing. These data sets were examined

however, for trends in distribution, and showed that capture of

splittail decreased as sampling was conducted further upstream from the

Estuary. One of the surveys referred to by the respondent consists of

samples taken upstream of the Delta and catches young-of-the-year

almost exclusively. Because splittail migrate upriver to spawn in the

spring (Meng and Moyle 1995), it is likely that these catches are the

offspring of splittail that reside further downstream for the remainder

of the year.

Regarding gear suitability, a respondent suggested that certain

gear used, especially tow nets and trawls, were not appropriate for

sampling splittail because of their benthic habits and preference for

shallow water. The respondent also referred to gillnetting as an

effective method for capturing splittail.

We agree that the summer townet survey is inefficient in sampling

splittail and therefore, was not included in the analysis of abundance.

However, several trawling methods were included. Meng (1993) compared

the effectiveness of three types of gear from one survey--bottom

(otter) trawls, midwater trawls, and beach seines. Bottom and midwater

trawls sampled equal proportions of all splittail year classes (i.e.,

young-of-the-year, fish 1 year or older, and fish 2 years or older).

The beach seine was selective for young-of-the-year. High catches of

young-of-the-year in midwater trawls are thought to reflect movement of

young out of near shore areas when water recedes. They are frequently

captured in channels, presumably as they move downstream (Meng and

Moyle 1995). The information outlined above suggests that regularly

repeated bottom and midwater trawls are reasonably effective for

sampling splittail and examining trends through time.

There are no long-term gillnetting data sets that meet the criteria

above for inclusion in the analysis of abundance. Furthermore,

gillnetting results in high fish mortality, and long-term sampling by

gillnet is not feasible in waters with sensitive species. Almost all

sampling techniques have biases. For the data used in the abundance

analysis, the sampling remained constant. Therefore, the biases

remained constant through time, and there was a consistent downward

trend in splittail abundance.

Most of the sampling programs in the Estuary were initiated to

track changes in striped bass or salmon (Oncorhynchus tshawytscha)

populations. These long term data sets can be used to assess changes in

abundance of other species as long as assumptions of sampling design

are considered. Limitations of surveys designed for striped bass or

salmon have been consistent through time. Problems with sampling

shallow and inshore habitats have not changed and should not affect

relative abundance trends. Therefore, trends or changes in splittail

abundance reflected by these surveys should be unaffected by the

various weaknesses identified by the respondent. The high correlation

between the CDFG abundance index and numbers of fish (83 percent of the

variability is explained) suggests that the index is a reasonable

estimator of population trends.

Issue 3: One respondent commented that three separate data sets,

including a gillnet survey, suggest that splittail are abundant

throughout the Delta. Another respondent countered that gillnetting

surveys cited as evidence of abundance were based on a single night of

sampling in the American River when splittail were presumably

concentrated for spawning. This respondent added that the 60 percent

decline cited in the proposed rule is remarkable because one strong

year class (such as occurred in 1983) can mask an overall decline in

this long-lived species.

Service Response: The Act requires us to base listing

determinations upon best available scientific and commercial data. The

three data sets referred to by the respondent are limited temporally

and geographically. One of the data sets referred to by the respondent

covers one night of gillnet sampling in one location. The other two

data sets refer to 2 years of sampling, separated by more than 10

years, at the Pacific Gas and Electric plant in Antioch. We considered

all available data but determined that incorporation of sporadic or

isolated sampling events was not appropriate because of problems

associated with drawing conclusions from limited or sporadic data.

Issue 4: A respondent commented that no data were provided to

support the conclusion that successful reproduction is highly

correlated with wet years.

Service Response: Regression analyses of splittail young abundance

versus spring outflow (February-May) show strong relationships. As

spring outflow increases, abundance of splittail young increases.

Changes in spring outflow explained varying percentages of changes in

abundance of splittail young and ranged from 55 to 72 percent,

depending on which survey data were analyzed (Meng and Moyle 1995). All

of the regression analyses were significant (probability values ranged

from less than 0.0001 to 0.0025) (Meng and Moyle 1995). This is a

strong correlation between successful reproduction and wet years. The

low and high abundance indices of juvenile abundance from 1994 and

1995, respectively, is consistent with this analysis.

Issue 5: One respondent commented that the data we used to

determine the decline of splittail was biased by the fact that the time

period used to determine pre-decline and post-decline was heavily

weighted with wet years in the pre-decline period, thereby biasing the

analysis.

Service Response: We analyzed only wet years to determine if there

had been a decline within that year type. That analysis indicated that

even in wet years, when one would anticipate substantially higher

recruitment, there had been an overall decline in splittail abundance.

Young-of-the-year abundance declined steadily in the annual Chipps

Island trawl in wet years from 1978 to 1993. Abundance in 1993 was less

than 3 percent of what it was in 1978. Abundance per unit effort was

approximately 12.3 in 1978, 8.1 in 1982, 2.0 in 1983, 1.3 in 1986 and

less than 0.3 in 1993. This first analysis was done using a catch-per-

tow analysis. The second analysis of splittail abundance using a

different analytical method that was based on a catch-per-volume of

[[Page 5968]]

water sampled yields a similar result. The volumetric methodology

yields a catch per unit effort (CPUE) at the Chipps Island trawl site

of 2.6 in 1978, 0.97 in 1982, 0.77 in 1983, 0.73 in 1986, and 0.21 in

1993. These two analyses show that there is an overall reduction in

abundance that is not solely a result of drought conditions. Using the

second analytical method yields a CPUE for 1995 and 1996 of 2.1 and

0.63 respectively, which were both wet years. If there were a stable

number of sexually mature fish throughout the period of decline, one

would expect similar reproduction in both years. However, there was a

substantial decline from 1995 to 1996, which may indicate that there

were not as many adult fish, reflected by the lower CPUE in 1996.

Issue 6: One respondent commented that there is no evidence to

support the statement that lower numbers of splittail young-of-the-year

during the drought may affect the stock's ability to recover.

Service Response: Our status report (Meng 1993) and the proposed

rule (59 FR 862) indicated that wet years are required for splittail

recruitment. However, as previously discussed in the analysis of only

wet years, young-of-the-year abundance has declined during these years.

Because splittail live 5 to 7 years and rely on wet years for strong

year classes, a prolonged drought, such as the recent 6-year drought,

may provide little recruitment opportunities. The steady decline in

young-of-the-year abundance in the Chipps Island trawl, combined with a

5 to 7 year life span and reliance on wet years for strong year

classes, suggests that lower numbers of splittail young during the

drought will reduce the number of adult fish in subsequent wet years.

This overall decline in splittail abundance, even during wet years, may

affect the ability of the species to recover.

Issue 7: A respondent commented that the drought, not exports, was

responsible for the recent decline in splittail abundance indices.

Service Response: Water exports at the State and Federal pumping

facilities are not the only threat to the species related to the State

Water Project and the Central Valley Project. The State and Federal

water projects are interbasin water delivery systems that include 34

reservoirs, thousands of miles of aqueducts and canals, and large

pumping facilities in the south Delta. Storage in reservoirs and

conveyance components of the projects also have substantial effects on

the splittail. Outflow conditions that inundate large vegetated areas

are affected by pumping because increases in pumping must be supported,

at some point, by increases in diversions to State and Federal

reservoirs. Most rainfall occurs during winter and spring in

California, and high spring flows are augmented by snow melt.

Historically, high spring flows provided flooded areas and shallows for

fish spawning and rearing. Construction of upstream reservoirs allowed

large amounts of these high spring flows to be diverted to storage for

later release. Diversion of water to storage dampens peak spring flows

beneficial to splittail spawning success and provides water for pumping

when flows to the Estuary decrease.

Since 1983, the proportion of water exported from the Delta during

October through March has been higher than in earlier years (Moyle et

al. 1992). Changes in timing and amounts of exports, as well as

operations of upstream water storage facilities, affect fish migration

and spawning habits. Dampening of peak spring flows by springtime

diversions to storage to replenish depleted reservoirs has deleterious

effects on estuarine species such as splittail, which evolved in a

system with periodic spring flooding.

As previously discussed, in wet years when fish production is

generally high, large segments of the juvenile population are

vulnerable to export facilities both directly and indirectly through

entrainment and altered Delta hydrology. This vulnerability is

reflected in wet year abundance indices. The adverse effects of the

pumps in wet years combined with poor recruitment during dry years

exacerbates the population demographic outlook for the splittail.

Issue 8: A respondent commented that calculations in the status

report were incorrect. This comment targeted a reference in the

proposed rule regarding the abundance of splittail in the Suisun Bay

area.

Service Response: This comment was apparently based on a

misinterpretation of data included in the status report. The respondent

incorrectly assumed that the top half of Figure 13 in the status report

supported statements in the text regarding abundance of splittail in

Suisun Bay. However, this portion of Figure 13 was intended to indicate

the approximate locations and effort of the different surveys used for

the status report. The bottom half of Figure 13 was intended to support

statements about abundance of splittail in the Suisun Bay area. The

respondent acknowledged the high catches in Suisun and Grizzly bays

represented in the bottom of Figure 13. Furthermore, two CDFG surveys

indicate that abundance of splittail captured by each survey,

comprising 72 and 56 percent of the catch, respectively, was taken in

those areas (Meng and Moyle 1995).

The respondent also stated that values used to construct the top

half of Figure 13 were incorrect. The respondent recalculated the

values, but used incomplete data sets (Chipps Island trawl) or

incorrect data sets (Suisun Marsh). Furthermore, the respondent

referred to Bay Study beach seine data that were not included in the

analysis and constructed a table of values without using the

appropriate scale included on the original figure. The respondent

stated that adding ratios, as in Figure 13, violates basic laws of

algebra. However, the figure was not intended to show the sums of

catches in different areas. The figure was intended to illustrate the

relative contributions of different surveys in different areas. The top

half of Figure 13 has been removed from the status report because it

was confusing and did not contribute to the analysis.

Issue 9: Two respondents commented that outflow conditions that

inundate large vegetated areas and result in favorable spawning

conditions are largely unaffected by diversion and export capabilities

of the State and Federal water projects.

Service Response: Evidence offered to support this comment is a

correlation analysis performed by DWR indicating that there is a

positive relationship between the number of days that the Yolo and

Sutter bypasses are flooded and splittail young abundance. The Yolo and

Sutter bypasses are flood control structures that bypass flows 96 and

128 km (60 and 79 mi) upstream of the confluence of the Sacramento and

San Joaquin rivers respectively. Because high outflows and number of

days the bypasses are flooded are strongly correlated, it is difficult

to isolate flooding of these specific areas as the most important

factor influencing splittail abundance. Although flooding of the

bypasses may result in favorable spawning conditions, young located in

the bypasses are likely to experience high mortality because they

become trapped in depressions and agricultural drainage canals when

water recedes (Jones and Stokes 1993).

Issue 10: One respondent commented that the effects of entrainment

on splittail are questionable. The respondent questioned statements in

the proposed rule that splittail may be more vulnerable to the effects

of entrainment in water project facilities in dry years. The respondent

based the argument on strong relationships between splittail abundance

and losses to project operations.

[[Page 5969]]

Service Response: An entrainment index was developed (a ratio of

indices from two surveys, i.e., salvage of entrained fish at water

project facilities divided by the fall midwater trawl index) that

demonstrated entrainment of splittail young was higher in wet years. We

acknowledge that based on the two surveys comprising the entrainment

index, entrainment of splittail appears to occur in proportion to

abundance, that is, entrainment is higher in wet years. Because

splittail abundance relies on high levels of recruitment in wet years,

taking more splittail in wet years does not remove the threat of

entrainment in water project facilities from the population. In the

early 1980s, hundreds of thousands of splittail young were salvaged

monthly by the State export facility alone (this number has decreased

as abundance has decreased). Since splittail abundance relies on strong

year classes in wet years to support the population during poor

environmental conditions, entrainment of large numbers of young, even

in proportion to abundance, remains a threat.

With the exception of the Bay Study, all 1995 indices were less

than historic wet year indices or, in the case of the Fall-midwater

Trawl survey, not as high as pre-decline wet-year indices. However, the

combined CVP/SWP salvage was more than double any previous year's

salvage index, wet or dry (approximately 8 million young-of-the-year

fish for the entire year versus less than 4 million young-of-the-year

fish in 1986, which was the next highest entrainment index on record).

This suggests that during 1995, the CVP/SWP export facilities in the

Delta may have actually entrained fish in greater proportion to

abundance than in past years.

Issue 11: One respondent questioned the mechanism by which shallow

water habitat has been lost in recent years. The respondent stated that

a significant amount of marsh habitat was diked and drained in the

first part of this century, but relatively little reclamation of

wetlands occurred within the last decade.

Service Response: We acknowledge that most wetland losses in the

Estuary occurred in the first part of this century. The recent loss of

shallow water habitat in the Estuary is due to increasing salinities in

Suisun Bay, a shallow area. Suisun Bay was historically fresh to

brackish much of the year and important for the rearing of Delta

fishes. Increasing salinities in the Suisun Bay area due to decreases

in outflow have reduced available shallow water habitat for splittail,

primarily a freshwater species. Increasing salinities in this area have

also decreased Neomysis mercedis production, a primary splittail food

and a factor cited by the respondent as being a possible cause of

decline.

Issue 12: One respondent commented that the possible effects of

predators and competitors deserves greater consideration. The

respondent referred to three introduced species that have experienced

population explosions during the same period that splittail declined,

two gobies and one atherinid, the inland silverside (Menidia

beryllina).

Service Response: We acknowledge that the three introduced species

and the splittail may occupy similar habitats. However, these

introduced species rarely exceed 8 cm (3.4 in) in length as adults,

one-fifth the size of splittail. Thus, direct predation by the

introduced species on splittail is unlikely. It is also unlikely that

adults of the introduced species consume splittail young because of

differences in spawning sites, that is, many splittail spawn upstream

of and in the upper portions of the Estuary. Furthermore, competition

for food or resources (such as spawning sites) is unlikely and would be

difficult to extract from the wide array of factors that may affect

splittail. The introduced species most likely to affect splittail is

striped bass, which is known to favor splittail for food (see Factor C

in the ``Summary of Factors Affecting the Species'' section). Splittail

and striped bass, however, have coexisted for decades in the Estuary.

Recent declines in splittail have occurred in concert with striped bass

declines.

Issue 13: A respondent stated that the reason for our decision not

to designate critical habitat is not entirely clear from the proposed

rule. Further, the respondent expressed concern that we provide

splittail with a level of protection afforded by listing the species as

threatened pursuant to the Act rather than addressing threats to the

species in recovery work that is already being undertaken for Delta

fisheries in general.

Service Response: We clarify the decision not to designate critical

habitat in the ``Critical Habitat'' section of this rule. Based on our

analysis of threats, including the lack of recovery efforts implemented

and regulatory controls, we determined threatened status for the

splittail in this rule. The Sacramento San-Joaquin Delta Native Fishes

Recovery Plan (U.S. Fish and Wildlife Service 1996) discusses threats

and needed restoration actions in detail.

Issue 14: One respondent questioned the need to list splittail with

current protections in place for delta smelt and proposed USEPA water

quality standards for the Estuary (59 FR 810). The respondent stated

that increases in water demand for splittail would affect the

predictability of water supplies for other users.

Service Response: In determining to list the splittail, we

considered the effects of the listing of delta smelt and designation of

critical habitat for the delta smelt (60 FR 4664) as well as

implementation of the State's Water Quality Control Plan (WQCP). We

believe that the life history and habitat requirements of splittail

will not be satisfied by these actions.

The life history characteristics and habitat usage of splittail

differ from those of delta smelt. Splittail migrate farther upstream to

spawn in the Sacramento and San Joaquin rivers and their tributaries

than do delta smelt. Consequently, protections for this species will

not overlap completely with those needed for splittail. Splittail also

differ from the already listed species in their habitat usage. Because

splittail prefer shallow water, with emergent vegetation, they are

particularly threatened by reclamation, dredging, and development

activities in those habitat types. Finally, because splittail are long-

lived and spend much of their lives in the Estuary, contaminants pose a

greater threat to this species than to delta smelt.

As described in detail under Factor D of the ``Summary of Factors

Affecting the Species'' section, water quality objectives developed by

the SWRCB could benefit splittail. In 1995, the SWRCB adopted a WQCP

for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (95-1WR,

May 1995) to protect water quality and to control water resources that

affect the beneficial uses of the Bay-Delta Estuary. As an interim

implementation measure, the SWRCB adopted Water Rights Order 95-6,

which relies on the CVP and SWP to comply with the new standards. The

flows identified in the water rights decision 95-6 that were

implemented through section 7 of the Act with the BOR and USEPA were

intended to benefit splittail as well as delta smelt. These flows would

provide spawning flows in tributaries as well as habitat and transport

flows in and through the Delta if the WQCP is fully implemented.

However, this WQCP has not proven entirely adequate to protect against

the effects of entrainment both at the CVP/SWP export facilities and

other agricultural and municipal water diversions. For example,

operations of the CVP and SWP facilities were altered only slightly for

a 3-day period of time

[[Page 5970]]

in June of 1995 to reduce the effects of salvage on out-migrating

juvenile splittail. This action was taken after almost 6 million

juvenile splittail were entrained and salvaged at the State and Federal

export facilities in the spring of 1995. Between the middle of April

and the end of June, over 6.3 million juvenile fish were salvaged at

these facilities. Based on data that we received from ongoing

monitoring programs during 1995, the vast majority of the fish were

probably of San Joaquin River origin, where substantial spawning has

not occurred in over a decade. The monitoring programs showed little

juvenile production and out migration from the Sacramento River. Even

if a population exists upstream of the Delta, State and Federal project

operations have done little, even in this new regulatory environment,

to protect against entrainment of those fish. Additionally, exports

during the out migration period change the behavioral cues and

hydrology that may affect the ability of juveniles to move out of the

Delta.

Moreover, the SWRCB has not completed the development of a long

term implementation plan for the 1995 WQCP. The SWRCB has prepared a

draft Environmental Impact Statement that evaluates a range of

potential alternative actions so that responsibility to meet the water

quality objectives in the 1995 WQCP can be allocated. The SWRCB is

currently holding hearings to obtain all necessary information so that

an implementation plan can be developed. An experimental proposal has

been developed by stakeholders on the San Joaquin River along with the

Service and other State and Federal agencies. The proposal, known as

the Vernalis Adaptive Management Plan (VAMP), would evaluate the

effects of flow and exports on salmon, along with a barrier at the head

of Old River, for the next 12 years. It may be accepted by the SWRCB

and may provide some benefit to splittail, but full evaluation of the

benefits and impacts to the species will not occur until the experiment

is complete. We will participate in the implementation of VAMP.

Issue 15: Several respondents questioned our reliance on the

entrapment zone (the area of the Estuary where saltwater and freshwater

meet) and its importance to splittail. Another respondent questioned

our reliance on changes in salinity and shifts in the distribution of

splittail upstream concurrent with shifts in the salinity.

Service Response: We agree that there is little if any correlation

between splittail abundance and the entrapment zone. However, the

entrapment zone is an important ecological indicator. It provides an

area in the estuary that is highly productive. However, when located

upstream, the mixing zone is not as productive because it is confined

to deep river channels where the total surface area is smaller, fewer

shoal areas exist, water currents are swifter and more turbulent, and

zooplankton productivity is low.

Issue 16: One respondent commented that we could not support the

conclusion that all size classes of splittail suffer near total loss at

the export facilities due to entrainment.

Service Response: According to salvage facility personnel, juvenile

splittail may suffer up to 50 percent mortality due to salvage at the

facilities (Scott Barrow, CDFG, pers. comm. 1995). Other forms of

mortality exist due to screen efficiency, predation, and impingement

that are not quantifiable at this time. We have modified the rule

accordingly.

Issue 17: Several commenters raised the issue of peer review of the

data and conclusions. One commenter also stated that there was no

public access to the data.

Service Response: The proposed rule to list the splittail was

published on January 6, 1994, prior to the time that the interagency

policy on peer review (59 FR 126) was made effective on July 1, 1994.

Despite this, we sent data used in the proposed rule to Dr. Bruce

Herbold, USEPA; Dr. Peter Moyle, University of California at Davis; and

Dr. Larry Brown, U.S. Geological Survey (USGS) for their review. None

of these reviewers provided written comments concerning the data.

Additionally, several meetings were held between the Service and CDFG's

Bay-Delta Division during the comment period to discuss the data and

methodologies used to establish trends in abundance. The CDFG did not

disagree with the data used or the methodology used in the analysis.

As described above, we reopened the comment period twice, once in

1995 and again in 1998. During the reopened comment period beginning in

January 1995, we considered a substantive issue that CDFG and others

raised during the original comment period. The subject of the

significant scientific disagreement, that resulted in reopening the

comment period, was whether a resident population of Sacramento

splittail existed in the upper rivers that was not being detected by

the current sampling methodologies. The CDFG conducted a study in the

Fall of 1994 to address this question. The results of the study were

available in February of 1995 and largely supported our listing. This

study was conducted by the CDFG under the review of an interagency

science committee (the Interagency Ecological Program). The re-opening

of the comment period in 1998 was based, in part, on information in the

peer-reviewed publication ``Resilience of Splittail in the Sacramento-

San Joaquin Estuary'' (Sommer et al. 1997).

Moreover, the status report that Meng prepared was peer reviewed

for its scientific basis. That status report was the basis of an

article in the Transactions of the American Fisheries Society, which

was again peer reviewed (Meng L. and P. Moyle, 1995). Additionally, the

final Sacramento-San Joaquin Delta Native Fishes Recovery Plan (U.S.

Fish and Wildlife Service 1996) that discussed the status of the

splittail was subject to public comment and review.

Although obtaining raw data from various agencies may have been

delayed due to quality assurance and quality control, all data was

available between the closing of the first comment period, and during

both of the reopened comment periods. Although there may be minor

differences in the final analysis contained in this final rule, these

differences do not change our conclusion regarding the status of the

species and the threats to the species.

Issue 18: The one comment received during the second comment period

suggests that there may be a resident splittail population upstream of

the Delta in the upper reaches of the mainstem rivers or their

tributaries.

Service Response: We agree that splittail do occur in the upper

reaches of the Sacramento and San Joaquin rivers in some years. While

we excluded the beach seine data sets from the analysis of abundance

(for the reasons stated in our response to Issue 2), we never

eliminated these, or other data sets, from our analysis of

distribution. The beach seine sampling collects relatively fewer fish,

on a catch-per-unit-effort basis, than do the surveys further down the

Estuary, such as the Chipps Island trawl. This sampling indicates that

the splittail, although utilizing these upstream areas, are not

utilizing them in substantial numbers, and certainly not in sufficient

numbers to constitute a population. The CDFG sponsored a special study

to try and determine if there were substantial resident populations

upstream of the Delta in 1994 (Baxter 1994). The results of this study

indicated that in 1994, the bulk of the population resided in and

around Suisun Bay, Big Break, and Grizzly Bay, which correlates to the

distribution of shallow water wetlands throughout this region.

[[Page 5971]]

Issue 19: Below we summarize comments from several respondents

concerning the Sommer et al. (1997) paper. The respondents state the

following reasons for not listing the splittail--(1) The splittail is

more widely distributed and abundant than previously thought; (2) The

splittail is a highly fecund, resilient, and long-lived species with

more than one year class spawning at one time; therefore, it can

rebound because of its high reproductive capacity; (3) The splittail's

range has not decreased dramatically; (4) The splittail is able to

endure drought conditions and rebound in wet years; (5) Splittail are

robust and can handle stress at the export facilities; and (6)

Splittail are not at risk from pumping; they are taken in relative

proportion to their abundance.

Service Response: Item 1--We disagree with the statement that the

splittail is more widely distributed and abundant than previously

thought. However, we have always asserted that in some years splittail

are found in the upper Sacramento and San Joaquin rivers. During wet

years, splittail are more widely distributed and may be abundant, due

to more available spawning habitat. For instance, the wet year of 1995

enabled splittail to use habitats that are normally unavailable to them

during normal to dry years. During 1995, the Yolo Bypass provided good

habitat for spawning splittail and splittail abundance increased. The

Bypass provided suitable spawning habitat only because it was a wet

year and the Bypass held water later in the year and for a longer

duration than is typical. Therefore, when sampling was conducted during

1995, splittail seemed to be abundant and were found in areas, like the

Yolo Bypass, that they may not normally be able to use. These managed

habitats cannot be relied upon during normal or dry years to provide

spawning habitat unless they are consistently managed for the spawning

and rearing needs of splittail. During dry years, splittail abundance

is restricted by the availability of spawning habitat.

Item 2--We agree that the data demonstrate that splittail are a

fecund (fertile) species. However, even fecund species can become low

in abundance due to poor habitat conditions for spawning, which may

occur during normal or dry years. Young-of-the-year and juvenile

survivability recruitment is important to the splittail's recovery.

Even though splittail spawn several thousand eggs, not all will reach

adulthood. Splittail need good habitat for survivability to spawning

age.

Long-lived is a relative term. Compared to an annual species such

as the delta smelt, splittail, which live for an average of 5 to 10

years, are long-lived. However, if compared to the green sturgeon,

which lives to 20 to 40 years of age, the splittail has a short life

span.

The term resilience is also a relative term. Due to the larger body

size, splittail may be more resilient than delta smelt to entrainment

or impingement, for example, but they are less resilient than larger

fish such as salmon. We agree with the statement that more than one

year class of splittail may spawn at one time. However, spawning is not

always successful. Spawning success is correlated with several factors,

including wet years, high Delta outflow, and the presence of flooded

vegetation. If these parameters are not present, then the splittail may

have low recruitment to the population during that year or years.

Item 3--We disagree with the statement that the splittail range has

not decreased dramatically. Historically, splittail were found as far

north as Redding on the Sacramento River (at the Battle Creek Fish

Hatchery in Shasta County), as far south as the present-day site of

Friant Dam on the San Joaquin River, and up the tributaries of the

Sacramento River as far as the current Oroville Dam site on the Feather

River and Folsom Dam site on the American River. Splittail were

captured in southern San Francisco Bay and at the mouth of Coyote Creek

in Santa Clara County, but they are no longer present there. The

species is, for the most part, now confined to the Delta, Suisun Bay,

Suisun Marsh, and the Napa River, reflecting a significant decrease in

their historical range. Splittail are able to use the Sutter and Yolo

bypasses only in wet years. In addition, these bypasses are managed

artificially.

Item 4--We disagree with the statement that splittail are able to

endure drought conditions and rebound in wet years. The years 1987

through 1992 were consecutive dry years and demonstrated low abundance

indices for splittail. During dry years, splittail abundance is

restricted by the availability of spawning habitat. However, 1993 was

an above normal water year and splittail abundance indices remained

low. During 1993, after the end of the dry and critically dry years of

1987 through 1992, water was diverted to fill up the reservoirs that

had been depleted during the drought. Therefore, even though 1993 was

an above normal year, the additional water was unavailable for the fish

to use.

During the wet years of 1982, 1983, 1986, and 1995, splittail

abundance indices were high for all age classes, as sampled in the fall

mid-water trawl. During the wet years of 1984, 1996, and 1997,

splittail indices were low. Therefore, if wet or above normal year

types were the controlling factor, essential habitat for splittail

would have been provided and splittail numbers should have been higher

in 1984, 1996, and 1997. These data show that splittail do not

necessarily have high abundance indices during all wet years. Even

though 1984, 1996, and 1997 were wet years, they may not have had the

appropriate hydrology, water quality, etc., to support a large spawning

class. The timing and magnitude of flow events are likely significant

parameters affecting splittail spawning success. Spring flows also have

to be of adequate duration and timing to provide the fish with flooded

vegetation for escape cover, foraging areas, etc. Weather patterns are

too unpredictable to rely on wet years for the recovery of splittail;

extended periods of drought would result in low reproduction and

population declines. (Also see the response to Issue 6).

Item 5--We agree that splittail are a robust fish. They can obtain

a size of over 40 cm total length. However, even though they are a

relatively large fish, they are still subject to stress at the water

export facilities. Eggs and larvae are still subject to entrainment and

impingement at the facilities. The largest losses at the pumping plants

occur in wet years when up to millions of splittail young are lost

during the spring months. Although splittail salvage better than the

delta smelt, which cannot be salvaged at all, recent problems at the

export facilities have reduced the salvage of all fish. New species

such as the exotic mitten crab have recently posed problems at the

export facilities. Salvage of fish was requested to be stopped until

the crab problem can be resolved.

Item 6--We disagree with the comment that splittail are not at risk

from pumping and that they are taken in proportion to their relative

abundance. Although it may appear that splittail are able to handle the

stress of salvage at the export facilities, they may not necessarily

survive after release. Better studies are needed to determine the

extent of latent mortality.

Splittail are more likely to be at risk during pumping, depending

on the water year and where the fish are distributed during spawning.

During dry years, splittail are concentrated in the few areas that have

flooded vegetation that can support spawning. Therefore,

[[Page 5972]]

most of the population may be concentrated in one part of the Delta,

potentially resulting in more take at the pumps in proportion to the

amount of fish in the system. Conversely, more splittail are taken at

the pumps during wet years because there is more habitat available for

spawning, which may result in more recruitment to that year class.

Depending on the distribution of spawning, fish may be taken in

disproportion to their overall abundance.

Issue 20: Several respondents stated that programs and agreements

like the Bay/Delta Accord, CALFED (a consortium of State and Federal

agencies convened to address water issues in California), and VAMP will

result in recovery of splittail. Therefore, there is no need to list

the species.

Service Response: We agree that the threats associated with the

degradation of the Delta may be lessened by the successful

implementation of the Bay/Delta Accord, CALFED, Central valley Project

Improvement Act (CVPIA), and VAMP. However, to date, the results of

these agreements and programs have not been quantified due to

subsequent wet years that did not require regulatory intervention for

delivery of water for fish species. At this time, it cannot be

determined whether these actions have been implemented to an extent

that will prevent the splittail from becoming endangered within the

foreseeable future.

Issue 21: A respondent stated that we failed to comply with the

Regulatory Flexibility Act and Executive Order 12630.

Service Response: The Endangered Species Act requires that listing

decisions be made solely on the basis of biological information. The

legislative history to the Endangered Species Act amendments of 1982

states:

``The Committee of Conference * * * adopted the House language

which requires the Secretary to base determinations regarding the

listing or delisting of species `solely' on the basis of the best

scientific and commercial data available to him. As noted in the House

Report, economic considerations have no relevance to determinations

regarding the status of species and the economic analysis requirements

of Executive Order 12291, and such statutes as the Regulatory

Flexibility Act and the Paperwork Reduction Act, will not apply to any

phase of the listing process.'' (H.R. Conf. Rep. No. 567, 97th Cong.,

2d Sess. 12, 19-20 (1982); S. Rep. No. 418, 97th Cong., 2d Sess. 4

(1982)).

In consultation with our Solicitor's Office, we have concluded that

the analyses required by the Regulatory Flexibility Act are not

applicable to listing determinations.

Regarding Executive Order 12630, Governmental Actions and

Interference with Constitutionally Protected Property Rights, the

Attorney General has issued guidelines to the Department of Interior

(DOI) on implementation of this Executive Order. Under these

guidelines, a special rule applies when an agency within the DOI is

required by law to act without exercising its usual discretion--that

is, to act solely upon specified criteria that leave the agency no

discretion.

In this rulemaking context, we might be subject to legal challenge

if we considered or acted upon economic data. In these cases, the

Attorney General's guidelines state that Takings Implications

Assessments (TIAs) shall be prepared after, rather than before, the

agency makes the decision upon which its discretion is restricted. The

purpose of TIAs in these special circumstances is to inform policy

makers of areas where unavoidable fifth amendment taking exposures

might exist. Such TIAs shall not be considered in the making of

administrative decisions that must, by law, be made without regard to

their economic impact.

As described above, Congress required us to list species based

solely upon scientific and commercial data indicating whether or not

they are in danger of extinction. The Act does not allow us to withhold

a listing based on concerns regarding economic impact. The provisions

of the guidelines relating to nondiscretionary actions clearly are

applicable to the determination of threatened status for the Sacramento

splittail.

Summary of Factors Affecting the Species

After thorough review and consideration of all the best scientific

and commercial information available, we have determined that the

Sacramento splittail should be classified as a threatened species.

Procedures found at section 4 of the Act and regulations implementing

the listing provisions of the Act (50 CFR part 424) were followed. A

species may be determined to be endangered or threatened because of one

or more of the five factors described in section 4(a)(1). These factors

and their application to the Sacramento splittail (Pogonichthys

macrolepidotus) are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. The Sacramento splittail, once

widely distributed in the Central Valley of California from Redding to

the modern-day site of Friant Dam near Fresno, is now primarily

restricted to the Estuary due to dams, diversions, dredging, and the

diking and filling of historic flood basins. Within this constricted

range, splittail have declined by about 62 percent since 1984. However,

overall percentage decline over its historical range is much greater.

Populations have fluctuated somewhat in the past, with most recruitment

taking place in wet years. In wet years since 1978, however, splittail

recruitment has declined consistently with catch-per-unit-effort of

12.3, 8.1, 2.0, 1.3, and 0.3 for 1978, 1982, 1983, 1986, and 1993,

respectively. The updated data from CDFG demonstrate the same decline

by wet years, with 37.3, 15.5, 8.9, 7.3, and 0.6 in 1993. Other wet

year data include 1995, 1996, and 1997. These indices are 44.5, 2.1,

and 2.6, respectively. However, as stated before, 1995 was a very wet

year and there was suitable spawning habitat for splittail in the

Estuary. The 1995 data point does not represent a reversal in the

decline of the species. Splittail declines are highest (82 percent/83

percent with updated data) in the shallow water Suisun Bay area, the

center of its distribution. Therefore, as stated above, wet years are

not always indicative of high abundance indices. However, the current

data do not indicate a change in this trend.

Delta water diversions and exports currently total about 9 million

acre-feet per year, but plans now being prepared could increase exports

and diversions in the future. The Federal and State water projects

presently export about 6 million acre-feet per year from the Delta when

sufficient water is available, and in-Delta agricultural uses result in

diversion of about 3 million additional acre-feet per year. We know of

21 major Central Valley Project, State Water Project, or private

organization proposals that would result in increased water exports

from the Delta, reduced water inflow to the Delta, changes in timing

and volume of Delta inflow, or increases in heavy metal contamination

of the Delta. These proposed projects or actions include but are not

limited to revisions to the Central Valley Project Operations Criteria

and Plan, Los Banos Grandes Reservoir, Los Vaqueros Reservoir, South

Delta Water Management Program, North Delta Water Management Project,

West Delta Water Management Project, Delta Wetlands Corporation Water

Storage Project, Folsom Dam Reoperation, Oroville Dam Reoperation,

Auburn Dam, Central Valley Project contract renewals and amendments

such as those on the American River that include the

[[Page 5973]]

Sacramento County water contracts, East Bay Municipal Utilities

District water contract, as well as other increases in diversions

resulting from the American River Water Forum process. Other water

contracts renewals include the Solano County Water District. Contra

Costa Water District is currently proposing to increase their

diversions for future water supply. The Central Valley Project and

State Water Project wheeling purchase agreement, reactivation of the

San Luis Drain, Stanislaus-Calaveras River Basin Water Use Program,

Suisun Marsh Project Phase Three and Four, Federal Water Project change

in diversion point, and State Water Project Pump additions. All of

these projects would impact the habitat of the splittail.

Changes in water diversions are most likely at the State Water

Project. For the most part, the Federal pumping plant has operated at

capacity for many years (pumping at rates up to 4,600 cubic feet per

second (cfs)), so increased exports at this plant are unlikely.

However, the State Water Project pumping plant and capacity of the

State Aqueduct have considerable unused capacity. The State Water

Project currently pumps at rates up to 6,400 cfs and plans to increase

pumping rates by more than 50 percent. Local private diverters are

relatively stable and export up to 5,000 cfs from about 1,800

diversions scattered throughout the Delta. The DWR (1992) reported past

and projected State Water Project deliveries from Delta sources during

the years of 1962 to 2035. In the 1980s, deliveries ranged from 1.5

million acre-feet to 2.8 million acre-feet. By 2010, deliveries of up

to 4.2 million acre-feet are planned.

Since 1983, the proportion of water exported from the Delta during

October through March has been higher than in earlier years (Moyle et

al. 1992). Changes in timing and amounts of exports affect fish

migration and spawning habits, as well as operations of upstream water

storage facilities. Dampening of peak spring flows by springtime

diversions to storage facilities to replenish depleted reservoirs has

deleterious effects on estuarine species such as the splittail, which

have evolved in a system with periodic spring flooding.

Federal and State water diversion projects in the southern Delta

export, by absolute volume, mostly Sacramento River water with some San

Joaquin River water. During periods of high export pumping and low to

moderate river flows, reaches of the San Joaquin River reverse

direction and flow upstream to the pumping plants located in the

southern Delta. When total diversion rates are high relative to Delta

outflow, the lower San Joaquin River and other channels have a net

upstream (i.e., reverse or negative) flow. Out-migrating larval and

juvenile fish of many species become disoriented due to reverse flows.

Fish, including Sacramento splittail, delta smelt, longfin smelt

(Spirinchus thaleichthys), and all runs of salmon and steelhead are

lost at pumps and to predation at various water facilities and other

diversion sites. Because data from State and Federal pumping facilities

indicate that splittail migrate upstream to spawn, positive outflows

are also important to transport splittail young downstream (Meng 1993).

In recent years, the number of days of reversed San Joaquin River

flow have increased (Moyle et al. 1992), particularly during the

February-June spawning months for splittail. Reverse flows in the San

Joaquin River may transport more splittail young towards pumping

facilities in the south Delta where the splittail are entrained by

pumps and diversions. The survival rate of splittail salvaged from

entrainment is unknown. However, salvage operations have been shown to

result in 50 percent losses of salvaged fish (Scott Barrow, DFG, pers.

comm. 1995) (see factors C and E of this section for more discussion

about entrainment and salvage).

With full implementation of the WQCP for the Sacramento-San Joaquin

Estuary (described below) we anticipate an overall reduction of the

number of days of reverse flow in the lower San Joaquin River during

the spring period. Pumping will shift from the spring period to later

in the year. This pumping will likely have to be supported by reservoir

withdrawals. Reservoir releases in the spring may not be as frequent

depending on how much space is available in the reservoirs carried over

from the previous year. Increasing demand will also require more

support from reservoirs for export, which will alter the flow patterns.

Changes in reservoir operations and ramping rates for flood control may

affect shallow water spawning habitat along river corridors and

exacerbate stranding of splittail.

Estuaries are ecosystems where the mixing zone and salinity levels

are determined by interaction of river outflow and tidal action.

Splittail are most abundant in the shallow water of Suisun Bay, which

is historically associated with the entrapment zone. The young of this

species require high zooplankton densities, which are common in the

entrapment zone. Production of zooplankton increases when the

entrapment zone occupies a large geographic area with extensive shoal

regions within the euphotic zone (depths less than 4 meters), such as

Suisun and Grizzly bays. Fall mid-water trawl survey data collected by

CDFG indicate that 72 percent of the splittail captured from 1967 to

1992 in the Estuary were taken in the shallow water areas of Suisun and

Grizzly bays (Meng 1993).

During periods of drought and increased water diversions, the

entrapment zone and associated fish populations are shifted farther

upstream in the Estuary. During years prior to 1984, the entrapment

zone was located in Suisun Bay from October through March (except in

months with exceptionally high outflows or during years of extreme

drought). From April through September, the entrapment zone usually was

located upstream in the river channels. Since 1984, with the exception

of the record 1986 flood outflows, the entrapment zone has been located

primarily in the river channels during the entire year because of

drought and increased water exports and diversions. When located

upstream, the entrapment zone is confined to deep river channels where

the total surface area is smaller, fewer shoal areas exist, water

currents are swifter and more turbulent, and zooplankton productivity

is low. In all respects, the upstream river channels are much less

favorable for rearing of splittail. Splittail declines since 1984 have

been concurrent with an increasing amount and proportion of freshwater

diversions that confine the mixing zone to narrow, deep, and less

productive channels in the lower rivers.

Recent research indicates that splittail will use the Yolo and

Sutter bypasses during the winter and spring months for foraging and

spawning (Sommer et al. 1997). The bypasses are two extensive

floodplain areas used for flood control, agriculture, and wildlife

habitat. The bypasses serve as a control outlet for the Sacramento

River, which historically flooded large areas of the adjacent valley

during high water events in the winter and spring. The water from the

Sacramento River is diverted to the bypasses through a passive system

of weirs. Water enters the Yolo Bypass from the Sacramento River via

the Fremont and Sacramento Weirs. The Sutter Bypass is inundated

through the Tisdale Weir.

In 1995, the bypasses provided good habitat for fish, particularly

splittail because it was an extremely wet year and the bypasses were

flooded for several weeks in March and April. However, the bypasses do

not get flooded at all in dry and critically dry years. Therefore,

during those years,

[[Page 5974]]

when splittail would need the habitat the most, it is not provided by

the bypasses.

The Yolo Bypass is inundated whenever the Sacramento River stage at

Fremont Weir exceeds 33.5 feet. About 3/4 of the years going back to

the mid-1930s have had overflows into the Yolo Bypass. Even though the

water was high enough to overtop the Fremont Weir, the water may not

have stayed on the Bypass consistently nor long enough to benefit

splittail.

Under current water management practices, the bypasses cannot be

relied upon throughout any given spawning season to provide habitat for

splittail. As mentioned above, water is placed onto the bypasses by

overtopping of weirs along the Sacramento River. The flooding of the

bypasses is sporadic at best. The volume of water varies from year to

year as well as does the time of year when the bypasses are inundated.

The water may be placed intermittently on the bypasses, depending on

how much rainfall occurs at any given time. For instance, water has

been placed onto the Yolo Bypass as early as December and has remained

on the Bypass as late as May. Water has also been placed on the Bypass

for a short time and drained off. The water could be drained off at

some point during the season and then with more heavy rainfall, the

bypasses could become flooded again. Therefore, these systems would not

provide suitable spawning habitat consistently for splittail. Also, the

bypasses do not drain at consistent levels. There are pockets and holes

that form which may trap and strand fish as the water drains. During

some years, the bypasses do not have enough water or retain water long

enough to allow fish to enter the bypasses, spawn, and then grow to a

size that will allow them to out-migrate. The artificial systems of the

Yolo and Sutter bypasses, as currently managed, cannot be relied upon

to recover the splittail. The bypasses provide accessible and suitable

splittail spawning habitat only during wet years where the water

consistently remains on the bypasses for an extended period of time, as

in 1995.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. Overutilization is not known to be a factor

affecting this species. Some scientific collecting is conducted for

splittail but these activities do not adversely affect this species.

Striped bass anglers report occasional use of splittail as bait, but

this usage is thought to have little effect on the species. A small

fishery for splittail used to exist in the Sacramento River (Daniels

and Moyle 1983, Caywood 1974). However, no recent records of splittail

harvest exist, probably because little or no harvest now occurs due to

its declines. Records of splittail harvest are also sketchy because

identification of this species is often confused with other nongame

species. No other recreational or educational uses of this species

exist that may affect its abundance.

C. Disease or predation. Predation is thought to be a relatively

minor factor affecting the Sacramento splittail, especially compared to

the other factors discussed in this final rule. Striped bass and other

predatory fish are attracted to concentrated prey at fish salvage

release sites, such as occur at Clifton Court Forebay. The salvaged

fish, including splittail, are collected from holding wells of the

salvage facilities, placed in the salvage trucks, transported to the

release sites, and deposited in bulk from a pipe running from the truck

to a near-shore area, thus resulting in predator attraction. Fifty

percent of the released fish are lost (Scott Barrow, CDFG, pers. comm.

1995). These losses are largely due to attraction of predatory fish to

the release site of the salvage operations. Splittail and striped bass,

however, coexisted for decades in the Estuary and recent declines in

splittail have occurred in conjunction with striped bass population

declines. Increases in striped bass populations could threaten reduced

numbers of splittail. Recently, the CDFG has foregone striped bass

stocking or modified their striped bass management because of potential

harm to federally listed Sacramento River winter-run chinook salmon and

delta smelt.

Susceptibility to disease, due to poor water quality, may be a

factor in the decline of splittail. Workers at State and Federal water

project facilities in the south Delta have reported high incidences of

adult splittail in poor health. The south Delta is dominated by San

Joaquin River flow, a large part of which is made up of agricultural

drainage. Pesticides (e.g., chlorpyrifos, carbofuran, and diazinon),

salts (e.g., sulfates, selenium), and total dissolved solids from this

drainage are concentrated by reverse San Joaquin River flows and result

in poor water quality (Dennis Westcot, Central Valley Regional Water

Quality Control Board, pers. comm.).

D. The inadequacy of existing regulatory mechanisms. Regulatory

mechanisms currently in effect do not adequately protect the splittail

or its habitat. This species is not listed by the State of California.

We are analyzing the potential effects on splittail and other fish

and wildlife resources in California as a result of enactment of the

CVPIA (Pub. L. 102-575) under the National Environmental Policy Act

(NEPA) and the Programmatic Environmental Impact Statement currently

under development. The CVPIA may benefit the splittail, but does not

adequately protect the species at this time. Two of the stated purposes

of the CVPIA are to ``protect, restore, and enhance fish, wildlife, and

associated habitats in the Central Valley and Trinity River basins of

California'' and ``to contribute to the State of California's interim

and long term efforts to protect the San Francisco Bay-Sacramento-San

Joaquin Delta Estuary.'' Section 3406(b)(2) dedicates 800,000 acre-feet

of Central Valley Project yield annually to implement fish, wildlife,

and habitat restoration, and to help federally listed species. The

800,000 acre-feet identified in the CVPIA may be used to meet the DOI's

obligations under the Bay-Delta Accord (discussed below). The rest of

the water can be used for instream flows, additional Delta outflow, and

the other purposes of the CVPIA. Because of the multiple purposes of

the CVPIA, flows may be provided at times of the year that may not

benefit splittail, such as spawning flows in the fall for salmon.

Additionally, because of the need to balance these flows for all uses

under the CVPIA, certain spring flows may be less than what is fully

needed for spring spawning of splittail. We anticipate that splittail

will benefit from implementation of the CVPIA, although the magnitude

and timeliness of these protections may be inadequate to prevent

further decline of splittail. On November 20, 1997, the DOI announced

its decision regarding use of the 800,000 acre-feet of water identified

in the CVPIA. The decision is to be implemented for the next 5 years

and involves not only upstream actions but also actions in the Delta

which may benefit splittail. However, since the Central Valley Project

represents only a portion of the water development projects in the

Central Valley, the CVPIA is likely insufficient to fully protect

splittail at this time.

Protective measures currently being implemented to benefit the

delta smelt may benefit the splittail, such as restrictions on pumping

under certain conditions. However, the ecological requirements of these

species differ, especially with respect to timing of important

development stages and habitat uses. Unlike delta smelt, splittail

require flooded lowland habitat for spawning and are particularly

vulnerable to disturbance or destruction of marshy habitat.

[[Page 5975]]

The Suisun Bay area, including Suisun Marsh, is the best known

habitat for splittail, but this habitat has been adversely altered by

higher salinities in the spring. These higher salinities are caused by

operations of reservoirs that divert water to storage as well as

exports from the Delta that allow seawater to intrude farther upstream

in Suisun Marsh. Prior to the Bay-Delta Accord/WQCP, there were

relatively few periods when freshwater outflows of any significance

were mandated to be released through the Delta and Suisun Bay for

wildlife or fisheries. State and Federal agencies had planned to

increase 1991 and 1992 water supplies for out-of-stream uses at the

expense of environmental protection of estuarine fish and wildlife

resources in the fifth and potentially sixth years of drought (Morat

1991). Because of significantly higher than normal precipitation and

subsequent higher instream flows after March 1991, a State agency

request for relaxation of Delta water quality standards was withdrawn.

Subsequently, on December 15, 1994, the Federal government, the

State of California, and urban, agricultural and environmental

interests agreed to the Principles for Agreement on a comprehensive,

coordinated package of actions designed to provide interim protection

to the San Francisco Bay and Sacramento-San Joaquin River Delta

Estuary. That agreement is referred to as the 1994 Bay-Delta Accord

(Accord). The Accord was recently extended to December 15, 1999. The

Accord established parameters to protect the beneficial uses of the

Bay-Delta Estuary. Among these beneficial uses are objectives to ensure

adequate Delta outflow for the maintenance of suitable habitat for

various life stages of aquatic organisms and objectives for export

limits to protect the habitat of estuarine-dependent species and reduce

their entrainment at the major export pumps in the southern Delta.

The X2 standard provides outflows to maintain low salinity (2 parts

per thousand) habitat at three distinct areas in the Bay-Delta: 1) the

confluence of the Sacramento and San Joaquin rivers, 2) Chipps Island,

and 3) Roe Island. Compliance of this standard will provide variability

for aquatic organisms and aid in their recovery. The E/I ratio

establishes a combined export rate (Clifton Court Forebay inflow plus

export at the Tracy Pumping Plant) based on the best available estimate

of the Eight River Index. When the estimate of the Eight River Index is

ultimately made, the export facilities may then pump a set percentage

of Delta inflow. Although these parameters will likely protect fish and

wildlife, they have not been adequately tested over the past 4 years

due to the extreme wet conditions.

Present regulatory processes do not ensure that water inflows to

Suisun Bay and the western Estuary will be adequate to maintain the

mixing zone near or in Suisun Bay to benefit splittail. The SWRCB has

the authority to condition or require changes in the amount of water

inflow and the amount of water exported or diverted from the Delta. In

testimony given before the SWRCB's Water Quality/Water Rights Hearings

in 1987, one of our biologists expressed concern for several Delta

species, including splittail (Lorentzen 1987). The SWRCB did not take

regulatory or legal action to protect this fish or its habitat during

the following 4 years. On May 1, 1991, the SWRCB adopted the WQCP for

Salinity for the San Francisco Bay-Sacramento-San Joaquin Delta Estuary

(1991 Bay/Delta Plan). On September 3, 1991, under provisions of the

Clean Water Act, the USEPA disapproved certain water quality standards

due to the SWRCB's failure to adopt criteria to protect estuarine

habitat. In April 1992, the Governor of California announced a new

water policy that included a directive to the SWRCB to establish

``interim measures'' to reverse the decline of fishes in the Bay and

Delta. Accordingly, the SWRCB released an interim water quality plan

(Draft Decision 1630) in December 1992 that immediately was suspended

by the Governor. In 1993, the USEPA began the process of forming

replacement standards for those portions of the 1991 Bay/Delta Plan

that were disapproved.

Before USEPA's final rule on Water Quality Standards for Surface

Waters of the Sacramento River, San Joaquin River, and San Francisco

Bay and Delta became effective on December 14, 1994, and as a result of

Bay-Delta Accord that was signed on December 15, 1994, the SWRCB issued

and adopted Water Rights Order 95-6. The protections contained in this

Water Rights Order were determined to be roughly equivalent to the

protections in USEPA's final rule on water quality standards, and

USEPA's rule was withdrawn. Although the SWRCB has issued a draft

Environmental Impact Report (EIR), no long term implementation plan has

been developed or actually implemented for the new water quality plan.

Substantial opposition exists to certain implementation measures

identified in EIR. Institutional guarantees of compliance have been

lacking in the past and are needed in the future before existing

mechanisms can contribute to protection of this species. Records show

that the previous salinity standards contained in the SWRCB's Water

Rights Decision 1485 were inconsistently implemented and frequently

violated.

Among other things, the Bay-Delta Accord was intended to provide

for increased flexibility in the water project operations to respond to

ecological needs. Appropriate use of this increased flexibility may

have demonstrated that the established regulatory mechanisms were

sufficient to protect splittail. However, even though splittail were

proposed for listing before the Bay-Delta Accord was signed, water

project operations have rarely been changed to provide protection for

splittail. In 1995, for example, a wet year that afforded opportunities

to significantly reverse the decline of splittail while maintaining

water supply, more than 6.3 million juvenile splittail were entrained

at the CVP and SWP facilities in 2 months from late April to late June.

Of these fish, at least 50 percent were lost due to transport and

release. Predation in Clifton Court Forebay, inefficiency in screening

fish from diversion facilities, and handling most likely increased this

percentage. Despite the availability of the mechanism for increased

flexibility in project operations provided by the Bay-Delta Accord,

operations of the CVP and SWP were changed for only one 3-day period in

late June of 1995 to minimize entrainment of splittail. Thus, an

opportunity to significantly increase abundance and distribution of

splittail, and the opportunity to reverse the decline of the species

was lost.

As a direct result of a Framework Agreement, the Federal and State

governments established the CALFED Bay-Delta Program (Program). This

Program is a cooperative effort of the DOI, the U.S. Department of

Commerce, the USEPA, the California Environmental Protection Agency,

and the California Resources Agency, with the involved public formally

participating through the Bay-Delta Advisory Council. The mission of

the Program is to develop a long term comprehensive plan that will

restore ecological health and improve water management for all

beneficial uses of the Bay-Delta system. The plan will specifically

address fish and wildlife protection, water supply reliability, levee

stability, and water quality issues in the Delta. We are an active

participant in the Program and we believe that the eventual

implementation of the plan will contribute to the protection and

recovery of the Sacramento splittail. However, the plan is not yet

developed;

[[Page 5976]]

we cannot evaluate specific conservation measures until they have been

identified, described, and committed to in an approved final plan.

As a result of the Bay-Delta Accord, a program was established to

implement non-flow related actions to benefit fish and wildlife

resources. This program is known as Category III. The Category III

program is funded by Federal, State, and non-governmental organizations

and was funded with $60 million annually for the first 3 years of the

Bay-Delta Accord. There was approximately $10 million dollars funded in

the first year by the Metropolitan Water District (MWD). The MWD

contributed the same amount in the second year, with approximately $2-4

million contributed by other water districts and agencies. In November

1996, California voters passed Proposition 204, which provided State

funds for the Category III activities as well as other CALFED

activities. In 1997 the Federal government passed an $85 million

appropriation for Category III activities and CALFED functions. In the

Fall of 1997, CALFED awarded $60.6 million dollars toward proposals

under the Category III program. Some of these proposals will benefit

splittail through habitat enhancement or restoration. Some of these

projects have been implemented. However, due to the time frame required

to see if the project has met its objective, that is, to provide

suitable spawning habitat for splittail, we cannot determine if these

projects will be successful. However, because Category III projects are

not intended to enhance flow conditions in the Delta or its

tributaries, it cannot provide needed flows.

E. Other natural or manmade factors affecting its continued

existence. Splittail are vulnerable to natural events, such as drought,

because of the consistent decline in population indices and severely

constricted range and distribution. Drought will reduce the available

spawning area for the splittail because of reduced instream flows.

Because the range is already restricted and the population has

declined, a prolonged natural event such as drought (compounded by

exports and diversions described in Factor A) could endanger the

splittail.

Unscreened or inefficiently screened municipal, agricultural, and

industrial water diversions and other water facilities are a

significant problem for the splittail. It is estimated that there are

currently over 1800 unscreened diversions in the Delta. Screens are

currently designed for striped bass and salmonids. Approach velocities

and mesh sizes are therefore not appropriate for splittail. Behavioral

barriers (louver screens) at the State and Federal salvage facilities

that were designed using striped bass and salmonid criteria, also are

not appropriate for splittail. Release sites for salvaged fish attract

predators, likely resulting in low survivorship overall (Lloyd Hess,

BOR, pers. comm. 1995). Also, it is likely that few young survive

salvaging at the Federal and State pumping plants because juveniles of

most fish species are more delicate than adults.

Poor water quality also may adversely affect splittail, through

direct exposure to toxins, which increases vulnerability to disease as

described above in Factor C, and depletion of zooplankton and

invertebrate food sources. All major rivers that are tributary to the

Estuary are exposed to large volumes of agricultural and industrial

chemicals that are applied in the Central Valley watershed (Nichols et

al. 1986). Agricultural chemicals and their residues, as well as

chemicals originating in urban runoff, find their way into the rivers

and Estuary. Approximately 10 percent of the total pesticide use in the

United States occurs in the Sacramento and San Joaquin River watersheds

(Kuivila and Foe 1995). Recently, high concentrations of

organophosphate and carbamate pesticides from agricultural uses have

been documented entering the Estuary. These pesticides are acutely and

chronically toxic to zooplankton and fishes as far west as Martinez in

Suisun Bay and as far south as Vernalis on the San Joaquin River (Foe

1995, Bailey et al. unknown date). The periods of pesticide use

coincide with the timing of migration, spawning, and early development

of splittail. During rainfall runoff events, acutely toxic pulses of

pesticides move down the rivers and through the Estuary with remarkable

persistence and relatively little dilution (Kuivila and Foe 1995).

Toxicology studies of rice field irrigation drain water of the

Colusa Basin Drainage Canal have documented significant toxicity of

drain water to striped bass embryos and larvae, Oryzias latipes larvae

(in the Cyprinodontidae family), and opossum shrimp, which is the major

food organism of striped bass larvae and juveniles (Bailey et al.

1991), as well as all age classes of splittail. This drainage canal

flows into the Sacramento River just north of the City of Sacramento.

The majority of drain water samples collected during April and May 1990

were acutely toxic to striped bass larvae (96-hour exposures); this was

the third consecutive year rice irrigation drain water from the Colusa

Basin was acutely toxic (Bailey et al. 1991). Splittail may be

similarly affected by agricultural and industrial chemical runoff,

particularly because, like striped bass, adults migrate upriver to

spawn and young rear upriver until waters recede in late spring.

Some heavy metal contaminants have been released into the Estuary

from industrial, urban, and mining enterprises. While the effects of

these contaminating compounds on splittail larvae and their zooplankton

food resources are not well known, the compounds could adversely affect

survival. In addition, increases in urban development in the Sacramento

Valley will continue to result in concurrent increases in urban runoff.

Selenium has been found in aquatic organisms (Saiki and Lowe 1987,

Henderson et al. 1995) and fish species in the San Joaquin River

watershed (Nakamoto and Hassler 1992). Selenium has been shown to cause

reproductive failure, developmental defects, and mortality of fish

species (Hermanutz 1992, Skorupa et al. 1996).

In recent years, untreated discharges of ship ballast water has

introduced exotic aquatic species to the Estuary ecosystem (Carlton et

al. 1990). Several exotic species may adversely affect the splittail.

An Asian clam (Potamocorbula amurensis), introduced as veliger larvae

in 1986, was first discovered in Suisun Bay during October 1986. By

June 1987, the Asian clam was widespread in Suisun, San Pablo, and San

Francisco bays irrespective of salinity, water depth, and sediment type

at densities greater than 10,000 individuals per square meter. Asian

clam densities declined to 4,000 individuals per square meter as the

population aged during the year (Carlton et al. 1990). Persistently low

river outflow and concomitant elevated salinity levels may have

contributed to this species' population explosion (Carlton et al.

1990). The Asian clam could potentially play an important role in

affecting the phytoplankton dynamics in the Estuary. The clam may have

an effect on higher trophic levels by decreasing phytoplankton biomass.

The Chinese mitten crab (Eriocheir sinensis), has also been

recently introduced to the Delta, either by deliberate release to

establish a fishery or through accidental release via ballast water.

The Chinese mitten crab has interfered with the ability to effectively

salvage fish at the export facilities by clogging the internal piping.

Historically, Eurytemora affinis, the native euryhaline copepod,

has been the most important food for larval fishes in the Estuary.

Three non-native species of euryhaline copepods (Sinocalanus

[[Page 5977]]

doerrii, Pseudodiaptomus forbesi, and P. marinus) became established in

the Delta between 1978 and 1987 (Carlton et al. 1990), while E. affinis

populations have declined since 1980. It is not known if the exotic

species have displaced E. affinis or whether changes in the estuarine

ecosystem now favor S. doerrii and the two Pseudodiaptomus species

(Moyle et al. 1989). Sinocalanus doerrii is difficult for larval fishes

to catch because of its fast swimming and effective escape response

(Meng and Orsi 1991). Reduced feeding efficiency and ingestion rates

weaken and slow the growth of splittail young and make them more

vulnerable to starvation or predation.

We have carefully assessed the best scientific and commercial

information available regarding past, present, and future threats faced

by this species in this listing determination. Sacramento splittail

have declined by 62 percent over the last 15 years. This species has

been effectively extirpated from the majority of its range and is now

vulnerable to numerous threats in the Estuary as discussed above.

Because Sacramento splittail are long-lived, their decline has been

gradual, and extinction is not imminent, listing the splittail as

endangered would not be appropriate. Although this species is not in

imminent danger of extinction, it is likely to become endangered in the

foreseeable future if present threats and current population trends

continue. Therefore, based on the evaluation of all available

information on abundance, present distribution, and threats to this

species, we have determined that listing the Sacramento splittail as

threatened is appropriate at this time. Critical habitat is not

designated for reasons discussed in the ``Critical Habitat'' section of

this rule.

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) the

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with section 4 of the Act, 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 a species at the time it is

listed, upon determination that such areas are essential for the

conservation of the species. ``Conservation'' as defined in section

3(3) of the Act means the use of all methods and procedures needed to

bring the species to the point at which listing under the Act is no

longer necessary.

Section 4(a)(3) of the Act, and implementing regulations (50 CFR

424.12) require that, to the maximum extent prudent and determinable,

the Secretary designate critical habitat at the time the species is

listed. The regulations (50 CFR 424.12(a)(1)) state that designation of

critical habitat is not prudent when one or both of the following

situations exist--(1) the species is threatened by taking or other

human activity, and identification of critical habitat can be expected

to increase the degree of threat to the species, or (2) such

designation of critical habitat would not be beneficial to the species.

We have determined that designation of critical habitat for the

Sacramento splittail is not prudent.

Critical habitat receives consideration under section 7 of the Act.

Section 7(a)(2) requires Federal agencies to consult with the Service

to ensure that any action they carry out, authorize, or fund does not

jeopardize the continued existence of a federally listed species or

destroy or adversely modify designated critical habitat. The Service's

implementing regulations (50 CFR part 402) define ``jeopardize the

continuing existence of'' and ``destruction or adverse modification

of'' in very similar terms. To jeopardize the continuing existence of a

species means to engage in an action ``that reasonably would be

expected, directly or indirectly, to reduce appreciably the likelihood

of both the survival and recovery of a listed species by reducing the

reproduction, numbers, or distribution of that species.'' Destruction

or adverse modification of habitat means a ``direct or indirect

alteration that appreciably diminishes the value of critical habitat

for both the survival and recovery of a listed species in the wild.''

Common to both definitions is an appreciable detrimental effect to both

the survival and recovery of a listed species.

For any listed species, an analysis to determine jeopardy under

section 7(a)(2) would consider impacts to the species resulting from

impacts to habitat. Therefore, an analysis to determine jeopardy would

include an analysis closely parallel to or, for the splittail,

equivalent to an analysis to determine adverse modification of critical

habitat. For the Sacramento splittail, any modification to suitable

habitat within the species' range has the potential to affect the

species. Actions that may affect the habitat of the splittail include,

but are not limited to--(1) reduction of fresh water flows, (2)

degradation of water quality, (3) reduction in the quality or quantity

of flooded vegetation, (4) alteration of shallow water areas containing

submergent (under water) and/or emergent (above the water surface)

vegetation, and (5) construction of structures that interfere with

migration patterns or block free access to spawning or rearing areas.

Although the splittail is a wide ranging species, actions affecting

habitat can have relatively large impacts to the population. For

example, an activity that destroys or degrades, or blocks access to, an

important spawning site could result in reproductive failure of a

significant portion of the population affecting population size and age

structure in following years. For the Sacramento splittail, we have

determined that, were critical habitat designated, it would include no

areas that would not be subject to consultation under the jeopardy

standard. Moreover, we have determined that the level of habitat impact

necessary to result in a determination of destruction or adverse

modification of critical habitat (were we to designate critical habitat

for the splittail) would also result in a determination of jeopardy to

the species. Therefore, were critical habitat to be designated for the

splittail, no additional section 7 consultations beyond those caused by

the listing itself would take place, nor would the practical result of

any such consultations differ.

To date, we have prepared 284 conference reports for the Sacramento

splittail for projects involving changes in hydrology, availability of

spawning habitat, migratory cues, and other behavioral patterns as well

as potential increase in entrainment. Three of these conferences

resulted in initial draft jeopardy determinations. These draft jeopardy

determinations provide evidence that, by their very nature, impacts to

splittail habitat that would result in a determination of adverse

modification would result in a determination of jeopardy to the

species. For these projects, the habitat impacts were the primary basis

for the jeopardy determinations.

The three projects that resulted in initial draft jeopardy

conference reports included the proposed Delta Wetlands Project (March

1996) (this project has since been modified to avoid jeopardy),

proposed modifications to the south Delta Temporary Barrier Program

(January 1997), and the proposed Interim South Delta Program (April

1998). The consultations and conferences for these projects addressed

the adverse effects on the delta smelt, its critical habitat, and the

Sacramento

[[Page 5978]]

splittail. With respect to each project, we concluded that it was

likely to jeopardize the continued existence of both species, and to

cause the destruction or adverse modification of the delta smelt's

critical habitat. In each of these examples, we expressly found that an

activity that would destroy or adversely modify critical habitat for

the delta smelt would also jeopardize its continued existence. In each

case, the project's primary impacts to the splittail, and the primary

bases for our conclusion that the splittail would be jeopardized by the

project, were habitat impacts. Moreover, had critical habitat been

proposed for the splittail, neither these conferences nor any of the

others regarding the splittail would have resulted in a finding of

adverse modification without a complementary finding of jeopardy.

Apart from section 7, the Act provides no additional protection to

lands designated as critical habitat. Designating critical habitat does

not create a management plan for the areas where the species occurs;

does not establish numerical population goals or prescribe specific

management actions (inside or outside of critical habitat); and does

not have a direct effect on areas not designated as critical habitat.

A designation of critical habitat that includes private lands would

only affect actions where a Federal nexus is present and would not

confer any additional benefit beyond that already provided through

section 7 consultation under the jeopardy standard. Designation of

critical habitat on private lands could, however, result in a detriment

to the species. The regulatory effect of critical habitat designation

is often misunderstood by private landowners, particularly those whose

property boundaries are included within a general description of

critical habitat for a species. In the past, landowners have mistakenly

believed that critical habitat designation will be an obstacle to

development and impose restrictions on the use of their property. In

some cases, landowners have believed that critical habitat designation

is an attempt by the government to confiscate their private property.

As a result of this misunderstanding, critical habitat designation has

sometimes reduced private landowner cooperation in efforts to conserve

species listed in California. Because the splittail is found in some

rivers and tributaries flowing through private lands, the cooperation

of private landowners is imperative to conserve the splittail.

Controversy resulting from critical habitat designation has been known

to reduce private landowner cooperation in the management of other

listed species (e.g., the northern spotted owl (Strix occidentalis

caurina) in Oregon, Washington, and California).

We are concerned that designating critical habitat increases the

likelihood of intentional acts of vandalism and habitat destruction due

to widespread public misunderstanding of critical habitat. Within the

general area where splittail occur, we have documented a number of

cases where habitat for listed species was deliberately vandalized or

destroyed to avoid dealing with endangered species regulatory issues.

Vernal pools, which provide habitat for several listed and candidate

species, including the giant garter snake (Thamnophis gigas), have been

affected negatively by landowners rerouting stream courses in order to

eliminate potential endangered species regulatory effects (F. Muth,

Fish and Wildlife Service, pers. comm.). We have documented the

deliberate destruction of habitat for giant garter snakes (K. Hornaday,

Fish and Wildlife Service, pers. comm.) and valley elderberry longhorn

beetles (Desmocerus californicus dimorphus) (B. Cordone, Fish and

Wildlife Service, pers. comm.; S. Pearson, Fish and Wildlife Service,

pers. comm.; D. Weinrich, Fish and Wildlife Service, pers. comm.; B.

Twedt, Fish and Wildlife Service, pers. comm.) along irrigation canals

within the same general areas where the splittail occurs. We are

concerned that designation of critical habitat for the splittail may

precipitate further habitat destruction affecting splittail and the

other species in these habitats.

We acknowledge that in some situations critical habitat designation

may provide some value to the species by notifying the public about

areas important for the species' conservation and calling attention to

those areas in special need of protection. However, in the case of the

splittail, we have already spent enormous effort on public outreach and

education and believe that critical habitat designation for the

splittail would not provide any further notification or education

benefit. Subsequent to the publication of the proposed rule to list the

splittail, we initiated an extensive public outreach strategy to inform

and educate the general public and interested parties within the range

of the species. We sent out press releases to local newspapers,

contacted elected officials, Federal, State, and county agencies, and

interested parties, including private landowners. We also provided the

Recovery Plan for the Sacramento/San Joaquin Delta Native Fishes that

addresses eight fish species including the splittail to these same

interested parties. We will continue to inform and educate the public

and private landowners within the range of the species through the

dissemination of additional information including copies of the final

rule, fact sheets, and question and answer sheets explaining relevant

parts of the Act to the parties listed above.

In addition, up-to-date information about the splittail and its

habitat, as well as detailed information about the Bay-Delta ecosystem

and other areas critical to conserving species that utilize the Bay-

Delta, is already widely disseminated to private landowners and to

entities or individuals that may propose projects that could affect

splittail. As discussed above in Factor E in the ``Summary of Factors

Affecting the Species'' section, the CALFED Program is a cooperative

effort to develop a long term comprehensive plan to restore ecological

health and improve water management for all beneficial uses of the Bay-

Delta system. In the process of developing a long term plan, CALFED has

held numerous public meetings, workshops, and hearings throughout the

State to receive information from the public, as well as to inform the

public about the program's goals and ecological needs of the species,

including splittail. CALFED maintains an extensive mailing list in

order to keep landowners, local, State, and Federal entities, as well

as the interested public, apprised of CALFED's actions and the

ecological needs of the species that utilize the Bay-Delta ecosystem

and other areas necessary for the conservation of species, including

splittail.

Regarding any potential benefit provided by informing other Federal

and State agencies about the splittail, the knowledge of the range and

habitat requirements for this species is well known by Federal

agencies, as is evidenced by the 284 conference reports we have

prepared addressing the splittail. The Service's Sacramento Field

Office stores information about the ranges of listed and other

sensitive species by USGS 7\1/2\ quad maps in a database. When a

Federal agency notifies the Service about a potential project they may

authorize, fund, or carry out, the Service does a database search and

provides a list of species that may be affected by the proposed action.

The plants and animals that are included on the species list are those

that may be affected, either directly or indirectly, by the proposed

project. Fish and other aquatic species including the splittail appear

on the species list if they are in the same watershed as the proposed

action. In other words,

[[Page 5979]]

splittail appear on a species list if the action occurs anywhere in the

Central Valley of California, including all rivers and the tributaries

that drain to these rivers. This database is updated if new information

about a species is made available. Use of this database provides a

superior means of providing information about a species' location to a

Federal agency.

Because of the sensitivity of the water community in California,

State, Federal, and private water users are also very aware of the

species range and habitat requirements. This knowledge extends to local

reclamation boards, county boards of supervisors, individual water

districts as well as a large number of private individuals. Private

consultants, who provide the biological expertise for all of the above

mentioned publics, have developed extensive knowledge of the current

range, habitat requirements, and potential effects of project proposals

on the splittail. Designation of critical habitat would not cause us to

provide different or additional information to these entities for the

purposes of preserving and/or recovering the species.

We have evaluated the potential notification and education benefit

offered by critical habitat designation and find that, for the

splittail, there would be no additional benefit over the current

outreach and interagency coordination process currently in place.

Notification and education can be conducted more effectively by working

directly with landowners and communities through the recovery

implementation process and, where a Federal nexus exists, through

section 7 consultation and coordination. Critical habitat designation

for the splittail would provide no further notification or education

benefit. In addition, these existing processes preclude problems and

potential risks associated with confusion and misunderstanding that may

accompany a critical habitat designation.

Critical habitat designation can also aid in the development of a

species' recovery plan by identifying the areas needing protection or

requiring special management considerations. However, we have already

developed the Recovery Plan for the Sacramento/San Joaquin Delta Native

Fishes that addresses eight fish species, including the Sacramento

splittail. The Recovery Plan identifies the important habitat areas for

the splittail.

In summary, we have determined that the designation of critical

habitat for the splittail would not be beneficial to the species. For

the splittail, the section 7 consultation process will produce a

jeopardy analysis that has results equivalent to a critical habitat

adverse modification analysis. We already provide private landowners

and agencies with up-to-date information on important areas for the

splittail. Federal agencies are already engaged in splittail

conservation efforts, and we will continue to provide them with up-to-

date information on areas important for splittail conservation. We have

completed recovery planning for the species, and we will review the

information in the recovery plan periodically to determine if updates

and revisions are needed. Finally, even if designation of critical

habitat for the splittail would provide some small, incremental benefit

to the species, that benefit is outweighed by the increased risk of (1)

controversy that would hamper recovery efforts or (2) vandalism. Based

on this analysis, we conclude that designation of critical habitat for

the Sacramento splittail is not prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

activities. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the States and requires that recovery actions be

carried out for all listed species. We initiate such actions following

listing. The protection required of Federal agencies and the

prohibitions against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(4) of the Act requires Federal agencies to

confer informally with us on any action that is likely to jeopardize

the continued existence of a proposed species or result in destruction

or adverse modification of proposed critical habitat. If a species is

subsequently listed, section 7(a)(2) requires Federal agencies to

insure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of such a species or to

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into consultation with us.

Federal actions that may affect the splittail include, but may not

be limited to, those actions authorized, carried out, or funded by the

Corps, BOR, National Marine Fisheries Service (NMFS), FERC, and USEPA.

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 BOR and DWR construct, operate, and

manage water storage and delivery facilities. The FERC licenses and re-

licenses hydroelectric power facilities, that manipulate instream

flows, in the tributaries to the Sacramento and San Joaquin rivers. The

USEPA reviews State water quality standards and promulgates replacement

standards pursuant to the Clean Water Act if State standards are found

to be inadequate. In 1991, USEPA disapproved portions of the SWRCB's

WQCP for salinity in the Estuary. Subsequent to that decision, the

USEPA developed new water quality standards to replace those that were

disapproved. The USEPA published a proposed rule in December of 1993

requesting comments. Prior to finalizing the final rule, the State

developed new water quality standards and proposed a new WQCP, 95-1WR,

which was implemented, in-part, through Water Rights Order 95-6. The

USEPA determined that the State's standards provided equivalent or

better protection and has withdrawn the Federal proposal. The State is

in the process of developing an implementation plan to fully achieve

the goals of the WQCP, and is hearing testimony on many issues.

The Sacramento splittail proposed rule was published January 6,

1994. During the last 4 years, 284 conference opinions have been

developed for projects proposed by various Federal agencies. We are

prepared to adopt all conference opinions as final biological opinions

for the Sacramento splittail, provided that the respective agencies

request the adoption in writing and the reinitiation criteria listed

under 50 CFR 402.16 do not apply. If there have been no significant

changes in an action as planned or in the information used during the

conference, we will confirm the conference opinion as the biological

opinion on the project, and no further section 7 consultation will be

necessary.

[[Page 5980]]

However, reinitiation of formal consultation is required where

discretionary Federal agency involvement or control over the action has

been maintained (or is authorized by law) and if--(1) the amount or

extent of incidental take is exceeded; (2) new information reveals that

the agency action may affect listed species or critical habitat in a

manner or to an extent not considered in this opinion; (3) the agency

action is subsequently modified in a manner that causes an effect to

the listed species or critical habitat that was not considered in this

opinion; or (4) a new species is listed or critical habitat designated

that may be affected by the action. In instances where the amount or

extent of incidental take is exceeded, any operations causing such take

must cease pending reinitiation.

Under section 4 of the Act, listing the splittail provides

additional impetus for development and implementation of a recovery

plan to bring together Federal, State, and private efforts to develop

conservation strategies for this species. We convened the Delta Native

Fishes Recovery Team to prepare a recovery plan for declining native

fishes in the Estuary. The draft recovery plan developed a framework

for agencies to coordinate activities and cooperate with each other in

conservation efforts. It also set recovery priorities and estimated

costs of various tasks necessary to accomplish recovery goals. Site-

specific management actions necessary to achieve survival and recovery

of splittail and other fishes native to the Estuary ecosystem were also

described in this draft plan. The draft recovery plan was released for

public review and comment on January 8, 1995 (60 FR 2155). Notice of

availability of the final plan was published in the Federal Register on

November 26, 1996 (U.S. Fish and Wildlife Service 1996).

The Act and implementing regulations set forth a series of general

prohibitions and exceptions that apply to all threatened wildlife. The

prohibitions, codified at 50 CFR 17.21 and 17.31, in part, make it

illegal for any person subject to the jurisdiction of the United States

to take (including harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, collect, or attempt any such conduct), import or export,

transport in interstate or foreign commerce in the course of commercial

activity, or sell or offer for sale in interstate or foreign commerce

any listed species. It also is illegal to possess, sell, deliver,

carry, transport, or ship any such wildlife that has been taken

illegally. Certain exceptions apply to agents of the Service and State

conservation agencies.

Our policy, as published in the Federal Register on July 1, 1994

(59 FR 34272), is to identify to the maximum extent practicable at the

time a species is listed those activities that would or would not

constitute a violation of section 9 of the Act if a species is listed.

Section 9 of the Act prohibits certain activities that directly or

indirectly affect listed species. The intent of this policy is to

increase public awareness of the effect of a proposed listing on

proposed and ongoing activities within a species' range. We believe

that, based on the best available information, the following actions

will not result in a violation of section 9, provided these actions are

carried out in accordance with any existing regulations and permit

requirements:

(1) Routine levee road maintenance;

(2) Weed and brush control on levees above the mean higher high

water mark or the ordinary high water mark;

(3) Aquatic recreational activities;

(4) Actions that may affect splittail that are authorized, funded

or carried out by a Federal agency, when the action is conducted in

accordance with an incidental take statement issued by the Service

pursuant to section 7 of the Act, and;

(5) Actions that may affect splittail that are not authorized,

funded or carried out by a Federal agency, when the action is conducted

in accordance with an incidental take permit issued by the Service

pursuant to section 10(a)(1)(B) of the Act.

Activities that we believe could potentially harm the Sacramento

splittail and result in ``take'' include, but are not limited to:

(1) Diversion of water from any river or stream or other water

course that results in the entrainment, injury or death of splittail,

including stranding of eggs, larvae, juveniles or adults; or diversions

that result in the degradation of waters containing splittail;

(2) Levee slope and bank protection that occurs below the mean

higher high water mark or the ordinary high water mark of a water body

that results in the loss of shallow water habitat used by splittail for

spawning and rearing;

(3) Dredging in any river or stream or other water body that

contains Sacramento splittail including dredging in flooded areas where

splittail may be spawning, or dredging that results in the degradation

of waters containing splittail;

(4) Discharge of fill material into a water body supporting

splittail that results in the destruction or degradation of spawning

and rearing habitat, substrate composition, water salinity, water

quality, channel stability, or migratory corridors;

(5) Discharge or dumping of toxic chemicals, pesticides, organic

wastes or other pollutants into a water body supporting splittail, or

discharge or dumping of pollutants that results in the degradation of a

water body containing splittail; and

(6) Unauthorized collection of splittail.

Questions regarding whether specific activities will constitute a

violation of section 9 should be directed to the Field Supervisor of

the Service's Sacramento Office (see ADDRESSES section).

Permits may be issued to carry out otherwise prohibited activities

involving threatened wildlife species under certain circumstances.

Regulations governing permits for threatened species are codified at 50

CFR 17.32. Permits for threatened species are available for scientific

purposes, to enhance the propagation or survival of the species, and/or

for incidental take in connection with otherwise lawful activities. For

threatened species, permits are available for zoological exhibition,

educational purposes, or special functions consistent with the purposes

of the Act. Requests for copies of the regulations on listed species

and inquiries regarding permits may be addressed to the U.S. Fish and

Wildlife Service, Ecological Services, Endangered Species Permits, 911

NE 11th Avenue, Portland, Oregon 97232-4181 (telephone 503-231-6241;

facsimilie 503-231-6243).

National Environmental Policy Act

We have determined that Environmental Assessments and Environmental

Impact Statements, as defined in the National Environmental Policy Act

of 1969, need not be prepared in connection with regulations adopted

pursuant to section 4(a) of the Endangered Species Act of 1973, as

amended. We published a notice outlining our reasons for this

determination in the Federal Register on October 25, 1983 (48 FR

49244).

Paperwork Reduction Act

This rule does not contain any new collections of information other

than those already approved under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and assigned Office of Management and Budget

clearance number 1018-0094. An agency may not conduct or sponsor, and a

person is not required to respond to, a collection of information

unless it displays a currently valid control number. For additional

information concerning

[[Page 5981]]

permit and associated requirements for threatened species, see 50 CFR

17.32.

References Cited

A complete list of all references cited in this rule are available

upon request from the Sacramento Fish and Wildlife Office (see

ADDRESSES section).

Authors

The primary author of this rule is Michael G. Thabault, U.S. Fish

and Wildlife Service, Sacramento Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended 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.

2. In Sec. 17.11(h) add the following to the List of Endangered and

Threatened Wildlife in alphabetical order under ``FISHES:'

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

-------------------------------------------------------- population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

Fishes

* * * * * * *

Splittail, Sacramento............ Pogonichthys U.S.A. (CA)........ Entire............. T 656 NA NA

macrolepidotus.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: February 1, 1999.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 99-2867 Filed 2-5-99; 8:45 am]

BILLING CODE 4310-55-P