[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 852-862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-90]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB66
Endangered and Threatened Wildlife and Plants; Revised Proposed
Critical Habitat Determination for the Delta Smelt
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Fish and Wildlife Service (Service) revises its proposed
designation of critical habitat for the delta smelt (Hypomesus
transpacificus) originally published on October 3, 1991, concurrently
with the proposal to list the species, pursuant to the Endangered
Species Act of 1973, as amended (Act). The final rule listing the delta
smelt as a threatened species was published on March 5, 1993. In the
final rule, the Service postponed the decision on critical habitat
determination for up to 1 year beyond the date that the final rule was
due (October 3, 1993) in accordance with section 4(b)(6)(C)(ii) of the
Act. The Service has refined the primary constituent elements described
in the original critical habitat proposal. This revised proposed rule
supersedes all aspects of the Service's previous proposal. Critical
habitat designation for the delta smelt would provide additional
protection under section 7 of the Act with regard to activities that
require Federal agency action. As required by section 4 of the Act, the
Service will consider economic and other relevant impacts prior to
making a final decision on the size and configuration of critical
habitat. The Service solicits data and comments from the public on all
aspects of this revised proposal.
DATES: Comments from all interested parties must be received by March
7, 1994. Public hearing requests must be received by February 22, 1994.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Acting Field Supervisor, Fish and Wildlife Service,
Sacramento Field Office, 2800 Cottage Way, room E-1803, Sacramento,
California 95825-1846. Comments and materials received will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Dale Pierce, Sacramento Field Office
(see ADDRESSES section) at (916) 978-4866.
SUPPLEMENTARY INFORMATION:
Background
Previous Service Action
In the January 6, 1989 (50 FR 554), Animal Notice of Review, the
Service included the delta smelt as a category 1 candidate species.
Category 1 includes species for which data in the Service's possession
are sufficient to support proposals for listing. On June 29, 1990, the
Service received a petition dated June 26, 1990, from Dr. Don C. Erman,
President-Elect of the California-Nevada Chapter of the American
Fisheries Society, to list the delta smelt as an endangered species
with critical habitat. The Service made a 90-day finding that
substantial information had been presented indicating that the
petitioned action may be warranted and announced this decision in the
Federal Register on December 24, 1990 (55 FR 52852). On October 3, 1991
(56 FR 50075), the Service published a proposal to list the delta smelt
as a threatened species and to designate critical habitat. This
proposed rule constituted the 12-month petition finding in accordance
with section 4(b)(3)(B) of the Act.
Critical habitat was proposed for areas of all water and all
submerged lands below ordinary high water and the entire water column
bounded by and contained within Suisun Bay (including the contiguous
Grizzly and Honker Bays), the length of Montezuma Slough, portions of
the Sacramento River, portions of the Sacramento-San Joaquin Delta,
portions of the San Joaquin River, and the contiguous water bodies in
between (a complex of bays, dead-end sloughs, channels typically less
than four meters deep, marshlands, etc.), California. The public
comment period opened on the date of publication of the proposed rule
(October 3, 1991) and closed on January 31, 1992.
The Service published a notice of public hearing on the proposed
rule on December 19, 1991 (56 FR 65877). Public hearings were conducted
in California on January 9, 1992, in Sacramento; on January 14, 1992,
in Santa Monica; and on January 16, 1992, in Visalia. At each meeting,
testimony was taken from 1 p.m. to 4 p.m. and from 6 p.m. to 9 p.m.
The final rule listing the delta smelt as a threatened species was
published on March 5, 1993 (58 FR 12854). In the final rule, the
Service postponed the decision on critical habitat designation for up
to 1 year beyond the date that the final rule was due (October 3, 1993)
in accordance with section 4(b)(6)(C)(ii) of the Act. The economic
analysis necessary to determine critical habitat was still in progress
at that time. On March 16, 1993 (58 FR 14199), the Service published a
notice that the public comment period on the proposed designation of
critical habitat for the delta smelt was reopened until April 30, 1993,
to allow the Service to consider any information that previously had
not been submitted.
Revisions to the October 3, 1991, Critical Habitat Proposal
The Service is required to base critical habitat designations on
the best scientific and commercial data available (50 CFR 424.12).
Subsequent to publication of the October 3, 1991, proposed rule, the
Service received new information on the current distribution of the
delta smelt, primarily from other State and Federal agencies.
Based primarily on information gathered by the California
Department of Fish and Game (Dale Sweetnam, California Department of
Fish and Game, pers. comm., 1993) and University of California, Davis
(Lesa Meng, University of California, pers. comm., 1993), the Service
proposes to expand the geographic extent of critical habitat to include
additional areas now known to constitute important spawning habitat. In
1993, delta smelt spawned in the Sacramento River, at least as far
upstream as Sacramento and Barker, Lindsey, Cache, Georgiana, Prospect,
Beaver, Hog, and Sycamore Sloughs (Dale Sweetnam, pers. comm., 1993).
In 1991, when delta smelt had all but disappeared from Suisun Marsh,
relatively large numbers of delta smelt were caught in Suisun Slough,
as far upstream as Suisun City (Lesa Meng, pers. comm., 1993). For
these reasons, the proposed critical habitat has been revised to
encompass these upstream habitats. Protection of these upstream
spawning habitats is essential to ensure recovery of the species.
Hence, this rule proposes critical habitat for the following geographic
area: Areas of all water and all submerged lands below ordinary high
water and the entire water column bounded by and contained in Suisun
Bay (including the contiguous Grizzly and Honker Bays); the length of
Goodyear, Suisun, Cutoff, First Mallard (Spring Branch), and Montezuma
Sloughs; and the existing contiguous waters contained within the Delta.
As used in this rule, the term ``Delta'' refers to all tidal waters
contained within the legal definition of the Sacramento-San Joaquin
Delta, as delineated by section 12220 of the State of California's
Water Code of 1969.
In an April 23, 1993, letter, received during the public comment
period, the Environmental Protection Agency (EPA) requested that new
scientific information presented in its draft proposed Bay/Delta water
quality standards be considered in the Service's designation of
critical habitat. The Service has used this information to refine the
primary constituent elements described in the original critical habitat
proposal. (The term ``primary constituent element'' is defined in the
``Primary Constituent Elements'' section of this rule.) The Service's
original proposal listed the following constituent elements: Space for
population growth, cover or shelter, maintenance of appropriate
littoral zone reproduction habitat to sustain embryos and to rear
larvae and juveniles, and 0-2 parts per thousand (ppt) salinities
during the January to June delta smelt reproductive season. As part of
the background for formulation of its proposed water quality standards,
EPA analyzed the number of days that low salinity (2 ppt) water
historically was located at three positions in Suisun Bay. The revised
primary constituent elements incorporate this new information. As
described in the ``Primary Constituent Elements'' section of this rule,
the Service has revised the primary constituent elements to include
those features that provide temporal and spatial variability of low
salinity waters that will deter further invasion of exotic species,
produce high zooplankton densities for food, and simulate natural
processes and historical conditions. The primary constituent elements
also describe in detail the months that each delta smelt life stage
requires protective habitat conditions.
After considering the information presented by EPA, the Service has
determined that, if implemented, EPA's proposed water quality standards
would likely significantly affect critical habitat as proposed in the
October 3, 1991, rule. Consequently, the Service is proposing this
revised rule to reduce the potential for inconsistencies between EPA's
standards and the Service's proposed critical habitat. Resolving the
inconsistencies will afford the smelt the same or better protection as
would have been achieved through the earlier proposal.
Relationship Between Fish and Wildlife Service and EPA Actions
The Clean Water Act and Endangered Species Act as written do not
specify how government actions should be coordinated or agency
conflicts should be resolved. However, because the Service and EPA
recognize that their proposed regulatory actions overlap both
biologically and economically, both agencies are working closely to
provide a comprehensive, ecosystem-based approach to the protection of
the fish and wildlife resources of the San Francisco Bay/Sacramento-San
Joaquin Delta Estuary. This coordination should also provide a set of
regulatory actions that are integrated in both substance and timing.
Section 7 of the Endangered Species Act requires that all Federal
agencies ensure that their actions do not jeopardize the continued
existence of listed species or adversely modify listed species'
critical habitat. EPA's proposed action to designate water quality
standards must comply with the section 7 requirement. EPA has initiated
a formal consultation process under section 7. Additionally, the Clean
Water Act requires protection of the most sensitive use within each
category of designated uses. Protection of endangered and threatened
species is considered a designated use within the meaning of the Clean
Water Act; therefore, a species listing under the Endangered Species
Act provides one method to identify the most sensitive use within the
designated uses of a water body.
Biologically, the proposed critical habitat for the delta smelt and
the salinity criteria that constitute EPA's proposed water quality
standards are directly related. Specifically, the occurrence of
salinities of 2 parts per thousand (ppt) in Suisun Bay was identified
as a critical habitat primary constituent element in the October 3,
1991, critical habitat proposal. Subsequent scientific publications
indicate that salinities associated with the distribution of delta
smelt may provide the best basis for setting standards for many species
that are affected by freshwater discharge from the Bay/Delta Estuary.
Favorable conditions from February through June are extremely important
to the abundance and reproductive success of almost all species that
live in or migrate through the upper Bay/Delta Estuary. EPA's proposed
water quality standards address the location of 2 ppt salinities from
February to June and, therefore, address both critical habitat
requirements for delta smelt and a range of interrelated parameters
that affect other species that rely on estuarine habitat.
Habitat Requirements
Historically, the delta smelt is thought to have occurred from
Suisun Bay upstream to the city of Sacramento on the Sacramento River
and Mossdale on the San Joaquin River (Moyle et al. 1992). Recently,
however, Wang (1991) recorded larval delta smelt from the Sacramento
River as far north as its confluence with the Feather River. The delta
smelt is an euryhaline species (tolerant of a wide salinity range) that
spawns in fresh water and has been collected from estuarine waters up
to 14 grams per liter (ppt) salinity (Moyle et al. 1992). For a large
part of its annual life span, this species is associated with the
freshwater edge of the entrapment zone (mixing zone at the saltwater-
freshwater interface), where the salinity is approximately 2 ppt
(Ganssle 1966, Moyle et al. 1992, Sweetnam and Stevens 1993).
The delta smelt is adapted to living in the highly productive
Sacramento-San Joaquin River Estuary (Estuary) where salinity varies
spatially and temporally according to tidal cycles and the amount of
freshwater inflow. (The term estuary refers to a partially enclosed
water body of variable salinity with freshwater and seawater inflow.)
Despite this tremendously variable environment, the historical Estuary
probably offered relatively constant suitable habitat conditions to
delta smelt, which could move upstream or downstream with the
entrapment zone (Peter Moyle, University of California, pers. comm.,
1993). Since the 1850s, however, the amount and extent of suitable
habitat for the delta smelt has declined dramatically. The advent in
1853 of hydraulic mining in the Sacramento and San Joaquin Rivers led
to increased siltation and alteration of the circulation patterns of
the Estuary (Nichols et al. 1986, Monroe and Kelly 1992). The
reclamation of Merritt Island for agricultural purposes in the same
year marked the beginning of the present-day cumulative loss of 94
percent of the Estuary's tidal marshes (Nichols et al. 1986, Monroe and
Kelly 1992).
In addition to this degradation and loss of estuarine habitat, the
delta smelt has been increasingly subject to entrainment, upstream or
reverse flows of waters in the Delta and San Joaquin River, and
constriction of habitat in the less productive, deep-water river
channels of the Delta (Moyle et al. 1992). These adverse conditions are
primarily a result of the steadily increasing proportion of water
diverted from the Delta by the Federal and State water projects (Monroe
and Kelly 1992). Water delivery through the Federal Central Valley
Project began in water year 1940. The State Water Project began
delivering water in 1968. However, the proportion of fresh water being
diverted has increased since 1983 and has remained at high levels
(Moyle et al. 1992). The high proportion of fresh water exported has
exacerbated the already harsh environmental conditions experienced by
the delta smelt during the recent 6-year drought. The March 5, 1993 (58
FR 12854), final rule listing the delta smelt as a threatened species
describes in detail the factors that have led to this species' decline.
This revised proposed rule to designate critical habitat for the
delta smelt focuses on habitat conditions required during specific life
stages (spawning, larval and juvenile transport, rearing, and adult
migration) of this annual species to ensure its eventual recovery.
Shortly before spawning, adult delta smelt migrate upstream from the
highly productive brackish-water habitat associated with the entrapment
zone to disperse widely into river channels and tidally-influenced
backwater sloughs (Radtke 1966, Moyle 1976, Wang 1991). Migrating
adults with nearly mature eggs have been taken at the Central Valley
Project's Tracy Pumping Plant from late December 1990 to April 1991
(Wang 1991).
Delta smelt spawn in shallow, fresh or slightly brackish water
upstream of the entrapment zone (Wang 1991). Most spawning occurs in
tidally-influenced backwater sloughs and channel edgewaters (Moyle
1976; Wang 1986, 1991; Moyle et al. 1992). Although delta smelt
spawning behavior has not been observed (Moyle et al. 1992), the
adhesive, demersal eggs are thought to attach to substrates such as
cattails and tules, tree roots, and submerged branches (Moyle 1976,
Wang 1991). In the Delta, spawning is known to occur in the Sacramento
River and in Barker, Lindsey, Cache, Georgiana, Prospect, Beaver, Hog,
and Sycamore Sloughs (Wang 1991; Dale Sweetnam, pers. comm., 1993).
Delta smelt also spawn north of Suisun Bay in Montezuma and Suisun
Sloughs and their tributaries (Dale Sweetnam, pers. comm., 1993; Lesa
Meng, pers. comm., 1993).
The spawning season varies from year to year and may occur from
late winter (December) to early summer (July). Moyle (1976) collected
gravid adults from December to April, although ripe delta smelt were
most common in February and March. In 1989 and 1990, Wang (1991)
estimated that spawning had taken place from mid-February to late June
or early July, with the peak spawning period occurring in late April
and early May.
Based on data for a closely related species, delta smelt eggs
probably hatch in 12 to 14 days (Moyle et al. 1992). After hatching,
larvae are transported downstream toward the entrapment zone where they
are retained by the vertical circulation of fresh and salt waters
(Stevens et al. 1990). The pelagic larvae and juveniles feed on
zooplankton. When the entrapment zone is located in a broad geographic
area with extensive shallow-water habitat within the euphotic zone
(depths less than 4 meters), high densities of phytoplankton and
zooplankton are produced (Arthur and Ball 1978, 1979, 1980), and larval
and juvenile fish, including delta smelt, grow rapidly (Moyle et al.
1992, Sweetnam and Stevens 1993). In general, estuaries are among the
most productive ecosystems in the world (Goldman and Horne 1983).
Estuarine environments produce an abundance of fish as a result of
plentiful food and shallow, protective habitat for young.
When the entrapment zone is contained within Suisun Bay, young
delta smelt are dispersed widely throughout a large expanse of shallow-
water and marsh habitat. Dispersion in areas downstream from the State
and Federal water pumps and in-Delta agricultural diversions protects
young smelt from entrainment and distributes them among the extensive,
protective, and highly productive shoal regions of Suisun Bay. In
contrast, when located upstream, the entrapment zone becomes confined
in the deep river channels, which are smaller in total surface area,
contain fewer shoal areas, have swifter, more turbulent water currents,
and lack high zooplankton productivity.
Erkkila et al. (1950) collected young delta smelt near Sherman
Island, at the confluence of the Sacramento and San Joaquin Rivers, in
July and August of 1948. In studies by the California Department of
Fish and Game, California Department of Water Resources, and Bureau of
Reclamation, larval and juvenile delta smelt were collected from Roe
Island in Suisun Bay north to the confluence of the Sacramento and
Feather Rivers and east to Medford Island on the San Joaquin River
(Wang 1991). These studies were conducted during the months of April
through mid-July in 1989 and 1990. Through these distribution surveys,
Wang (1991) was able to document the movement of juvenile delta smelt
from the Delta to Suisun Bay in late June and early July. In 1990,
young delta smelt were taken at the Tracy Pumping Plant at the end of
February (Wang 1991).
Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as ``(i)
the specific areas within the geographic area occupied by the species *
* * on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and (ii) specific
areas outside the geographical area occupied by the species at the time
it is listed * * * upon a determination * * * that such areas are
essential for the conservation of the species.'' The term
``conservation,'' as defined in section 3(3) of the Act, means ``* * *
to use and the use of all methods and procedures which are necessary to
bring an endangered species or threatened species to the point at which
the measures provided pursuant to this Act are no longer necessary.''
Therefore, areas designated as critical habitat must contain those
physical or biological features essential to recover a species to the
point that it no longer requires protection under the Act. Hence,
critical habitat designation affords species additional protection
above and beyond those of listing in that it preserves options for the
species' eventual recovery. Section 3 further states that in most cases
the entire range of a species should not be encompassed within critical
habitat.
Critical habitat designations alert Federal and State agencies,
other organizations, and the public about the importance of an area in
the conservation of a listed species. Critical habitat also identifies
areas that may require special management or protection. Critical
habitat receives protection under section 7 of the Act with regard to
actions carried out, funded, or authorized by Federal agencies. Section
7 requires that Federal agencies consult on actions that may affect
critical habitat to ensure that their actions are not likely to destroy
or adversely modify critical habitat. Section 7 also requires Federal
agencies to confer on Federal actions that are likely to result in
adverse modification or destruction of proposed critical habitat. Aside
from the added protection provided under section 7, the Act does not
provide other direct forms of protection to lands designated as
critical habitat.
In addition to considering biological information in designating
critical habitat, the Service also considers economic and other
relevant impacts of designating critical habitat. The Secretary may
exclude areas from critical habitat when the benefits of such exclusion
outweigh the benefits of including the areas within critical habitat,
provided that the exclusion will not result in the extinction of a
species.
Primary Constituent Elements
In determining which areas to designate as critical habitat, the
Service considers those physical and biological features that are
essential to a species' conservation (50 CFR 424.12). The Service is
required to list the known primary constituent elements together with a
description of any critical habitat that is proposed. Such physical and
biological features (i.e., primary constituent elements) include, but
are not limited to, the following:
(1) Space for individual and population growth, and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing of offspring,
germination, or seed dispersal; and
(5) Generally, habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
Following are the primary constituent elements necessary to
conserve the delta smelt. These elements were determined in
coordination with EPA in preparation of its proposed water quality
standards. EPA's proposed rule to promulgate Water Quality Standards
for Surface Waters of the Sacramento River, San Joaquin River, and San
Francisco Bay and Delta of the State of California is published in this
same Federal Register separate part. In its proposed rule, EPA has
requested specific comments on several issues, including the
possibility of modifying the Sacramento River Index for the purposes of
developing the salinity criteria, alternative approaches to the
averaging period used in its proposed salinity criteria, and evaluation
of the merits of the use of difference forms of confidence intervals
with the proposed criteria. The Fish and Wildlife Service will consider
these comments also in developing its final rule.
The primary constituent elements are organized by habitat
conditions required for each life stage. The specific geographic areas
and seasons identified for each habitat condition specified below
represent the maximum possible range of each of these variables.
Each of the habitat conditions specified below requires as its
basis placement of the 2 ppt isohaline at or downstream of the
Sacramento-San Joaquin River confluence from February through June. (An
isohaline is a line that can be drawn to connect all points of equal
salinity.) Furthermore, the location of the 2 ppt isohaline must vary
according to water years because:
(1) Temporal and spatial variability of the 2 ppt isohaline will be
the most effective deterrent to further invasion of new introduced
species and continued competition by those that are already
established,
(2) Placement of the 2 ppt isohaline in an area will also produce
the high phytoplankton and zooplankton densities that characterize most
healthy estuarine ecosystems, and
(3) Variability is needed to simulate natural processes and
historical conditions.
Table 1 lists the number of days (based on a 14-day running
average) that the 2 ppt isohaline must be located at Roe Island, Chipps
Island, or the Sacramento-San Joaquin River confluence during wet,
above normal, below normal, dry, and critically dry years to achieve
the life-stage habitat conditions described below. These required
salinity criteria are based on historical records of the water years
between October 1939 (subsequent to the operation of the Federal and
State water projects) and September 1975 (prior to the decline of the
delta smelt) (Harry Seraydarian, EPA, in litt., 1993; Bruce Herbold,
EPA, pers. comm., 1993). However, because no critically dry years
occurred during this period, the salinity criteria (required number of
days) for these years are based on an extrapolation of the data.
Table 1.--Required Salinity Criteria for Suisun Bay to Reflect
Historical Habitat Conditions
[Values represent the number of days that the 2 ppt isohaline must be
placed at three locations within the Sacramento-San Joaquin River
Estuary]
------------------------------------------------------------------------
Roe Island [km Chipps Island Confluence [km
Year type 64] [km 74] 81]
------------------------------------------------------------------------
Wet..................... 133 148 150
Above normal............ 105 144 150
Below normal............ 78 119 150
Dry..................... 33 116 150
Critically dry.......... 0 90 150
------------------------------------------------------------------------
The Roe Island salinity criteria are meant to replicate natural
spring storm cycles and are invoked only after uncontrolled runoff has
placed the 2 ppt isohaline seaward of Roe Island. Therefore, the
criteria for Roe Island represent the maximum number of days that the 2
ppt isohaline must be located there.
Spawning Habitat--Delta smelt adults seek shallow, tidally-
influenced, freshwater (i.e., less than 2 ppt salinity) backwater
sloughs and edgewaters for spawning. To ensure egg hatching and larval
viability, spawning areas also must provide suitable water quality
(i.e., low concentrations of pollutants) and substrates for egg
attachment (e.g., submerged tree roots and branches and emergent
vegetation). Specific areas that have been identified as important
delta smelt spawning habitat include Barker, Lindsey, Cache, Prospect,
Georgiana, Beaver, Hog, and Sycamore Sloughs and the Sacramento River
in the Delta, and tributaries of northern Suisun Bay. The spawning
season varies from year to year and may start as early as December and
extend until July.
Larval and Juvenile Transport--To ensure that delta smelt larvae
are transported from the area where they are hatched to shallow,
productive rearing or nursery habitat, the Sacramento and San Joaquin
Rivers and their tributary channels must be protected from physical
disturbance (e.g., sand and gravel mining, diking, dredging, and levee
or bank protection and maintenance) and flow disruption (e.g., water
diversions that result in entrainment and in-channel barriers or tidal
gates). Adequate river flow is necessary to transport larvae to rearing
habitat in Suisun Bay. To ensure that suitable rearing habitat is
available in Suisun Bay, the salinity criteria described above in Table
1 are required. Reverse flows that maintain larvae upstream in deep-
channel regions of low productivity and expose them to entrainment
interfere with these transport requirements. Suitable water quality
must be provided so that maturation is not impaired by pollutant
concentrations. The specific geographic area important for larval
transport is confined to waters contained within the legal boundary of
the Delta, Suisun Bay, and Montezuma Slough and its tributaries. The
specific season when habitat conditions identified above are important
for successful larval transport varies from year to year depending on
when peak spawning occurs. Therefore, habitat conditions suitable for
transport of larvae and juveniles may be required as early as February
1 and as late as August 31.
Rearing Habitat--Maintenance of the 2 ppt isohaline (according to
the salinity criteria described in Table 1) and suitable water quality
(low concentrations of pollutants) within the Estuary is necessary to
provide delta smelt larvae and juveniles a shallow, protective, food-
rich environment in which to mature to adulthood. This placement of the
2 ppt isohaline also serves to protect larval, juvenile, and adult
delta smelt from entrainment in the State and Federal water projects.
However, additional flows above those required to implement the
February through June salinity criteria listed in Table 1 may be
required occasionally to protect larval and juvenile delta smelt from
being entrained in the State and Federal water projects during the
months of July and August. These additional flows will be required when
the previous year's abundance indices show that the adult population
already is at low levels and late spawning conditions have led to
distribution of larval and juvenile delta smelt upstream of the
confluence of the Sacramento and San Joaquin Rivers in July and August.
An area extending eastward from Carquinez Straits, including Suisun
Bay, Grizzly Bay, Honker Bay, Montezuma Slough and its tributary
sloughs, up the Sacramento River to its confluence with Three Mile
Slough, and south along the San Joaquin River including Big Break,
defines the specific geographic area critical to the maintenance of
suitable rearing habitat. Three Mile Slough represents the approximate
location of the most upstream extent of tidal excursion when the
salinity criteria described in Table 1 are implemented. Protection of
rearing habitat conditions may be required from the beginning of
February to the end of August.
Adult Migration--Adult delta smelt must be provided unrestrained
access to suitable spawning habitat in a period that may extend from
December to July. Therefore, adequate flow and suitable water quality
must be maintained to attract migrating adults in the Sacramento and
San Joaquin River channels and their associated tributaries, including
Cache and Montezuma Sloughs and their tributaries. These areas also
must be protected from physical disturbance and flow disruption during
migratory periods.
To conserve the delta smelt, critical habitat is proposed for an
area encompassing the specific habitat conditions required by each life
stage identified above. Accordingly, critical habitat is proposed for
the following geographic area: Areas of all water and all submerged
lands below ordinary high water and the entire water column bounded by
and contained in Suisun Bay (including the contiguous Grizzly and
Honker Bays); the length of Goodyear, Suisun, Cutoff, First Mallard
(Spring Branch), and Montezuma Sloughs; and the existing contiguous
waters contained within the Delta. The proposed critical habitat is
contained within Contra Costa, Sacramento, San Joaquin, Solano, and
Yolo Counties, California. The ``Proposed Regulations Promulgation''
section provides a precise metes and bounds description of the revised
proposed critical habitat.
Effects of Critical Habitat Designation
Section 7(a)(2) of the Act requires Federal agencies to ensure that
the activities they authorize, fund, or carry out are not likely to
destroy or adversely modify critical habitat. This Federal
responsibility is in addition to the requirement in the same section of
the Act that Federal agencies ensure their actions do not jeopardize
the continued existence of any listed species.
Jeopardy is defined at 50 CFR 402.02 as any action that would be
expected to reduce appreciably the likelihood of both the survival and
recovery of a listed species. Destruction or adverse modification of
critical habitat is defined at 50 CFR 404.02 as a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for both the survival and recovery of a listed species. The regulations
also clearly state that such alterations include, but are not limited
to, alterations adversely modifying any of those physical or biological
features that were the basis for determining the habitat to be
critical. The requirement to consider potential adverse modification of
critical habitat is an incremental consideration above and beyond the
review necessary to evaluate the likelihood of jeopardy and incidental
take in section 7 consultations. In section 7 consultations, the
Service considers the potential for adverse modification of the primary
constituent elements identified in the critical habitat designation.
Section 4(b)(8) of the Act requires for any proposed or final
regulation that designates critical habitat a brief description and
evaluation of those activities (public or private) that may adversely
modify such habitat or may be affected by such designation. The Service
has identified the following list of activities that, depending on the
season of construction and scale of the project, may result in the
destruction or adverse modification of critical habitat without
necessarily jeopardizing the continued existence of the delta smelt:
(1) Sand and gravel extraction in river channels or marshes;
(2) Diking wetlands for conversion to farmland and dredging to
maintain these dikes;
(3) Levee maintenance and bank-protection activities, such as
riprapping, removal of vegetation, and placement of dredged materials
on levees of banks;
(4) Operation of the Montezuma Slough Control Structure; and
(5) Bridge and marina construction.
Construction and implementation of each of these actions requires
authorization by the Army Corps of Engineers pursuant to section 10 of
the Rivers and Harbors Act of 1899 and section 404 of the Clean Water
Act. Based on the Service's review of all existing or proposed projects
that may affect the delta smelt, the great majority that would likely
result in destruction or adverse modification of critical habitat also
would be likely to jeopardize the continued existence of the species.
The Service has not identified any proposed actions that might
jeopardize the delta smelt without adversely affecting its critical
habitat.
Considerations of Economic and Other Factors
Section 4(b)(2) of the Act requires the Service to consider
economic and other relevant impacts of specifying any particular area
to be included within the critical habitat boundary. The Secretary may
exclude any area from critical habitat should it be determined that the
benefits of such exclusion outweigh the benefits of specifying such an
area as part of the critical habitat unless it is determined, based on
the best scientific and commercial data available, that the failure to
designate such an area as critical habitat will result in the
extinction of the species concerned.
The impacts of designating critical habitat are in addition to the
economic and other impacts attributable to listing of the species.
Impacts attributable to listing include those resulting from the taking
prohibitions under section 9 of the Act and associated regulations.
``Take,'' as defined in section 3(18) of the Act, includes harm to a
listed species. ``Harm'' means an act that actually kills or injures
wildlife. Such an act may include significant habitat modification or
degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including
feeding, breeding, or sheltering (50 CFR 17.3).
Impacts attributable to listing also include those resulting from
the responsibility of Federal agencies under section 7 to ensure that
their actions are not likely to jeopardize the continued existence of
endangered or threatened species. An action could be likely to
jeopardize the continued existence of a listed species through the
destruction or modification of its habitat regardless of whether that
habitat has been formally designated as critical. The Act provides
significant protection to species, including protection to their
habitats, as a result of listing. Therefore, the direct economic and
other impacts resulting from additional habitat protection through
critical habitat designation may be incrementally small. In general,
the designation of critical habitat supplements the substantive
protection resulting from listing.
EPA has prepared a draft Regulatory Impact Analysis on its proposed
water quality standards. EPA's draft Regulatory Impact Analysis
includes an economic analysis of the effects of the designation of
critical habitat for the delta smelt. This economic analysis concludes
that economic costs attributable to the designation of critical habitat
for the delta smelt are relatively small and due primarily to the
effects designation of critical habitat would have upon the five types
of actions listed above under the section entitled ``Effects of
Critical Habitat Designation.'' An underlying assumption of the draft
economic analysis is that the costs associated with implementing EPA's
proposed water quality standards for the Bay/Delta are due primarily to
listing the delta smelt as threatened. As the Service refines its
economic analysis, it may determine that this assumption is to some
degree inappropriate and that some of the costs associated with
implementing the water quality standards may be attributable to the
designation of critical habitat.
The costs associated with sand and gravel operations (approximately
two aggregate operators are located in the Delta), diking or dredging
for agricultural activities, and marina or bridge construction are
expected to be similar. Project proponents or operators would incur
costs associated with wetlands restoration, using a replacement ratio
of 3 acres restored for 1 acre destroyed. The cost to restore 1 acre of
wetlands ranges between $10,000 and $50,000. However, for some tracts
of land, the costs associated with restoring wetlands may exceed the
value derived from the agricultural activity, in which case the cost
attributable to critical habitat would be the loss in agricultural
income. The costs attributable to a designation of critical habitat are
not expected to substantially affect levee maintenance operations
because Federal regulatory agencies currently have restrictions that
generally avoid adverse effects to the delta smelt. However, the
designation of critical habitat may result in leaving the Montezuma
Slough Control Structure's gates open from December to August rather
than November to March.
The Service will prepare a final economic analysis prior to making
its final determination on critical habitat. If that analysis
substantially differs from the draft summarized here, the Service will
make a revised economic analysis available to the public for comment
prior to a final determination on critical habitat.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species 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 Endangered Species Act provides
for possible land acquisition and cooperation with the States and
requires that recovery actions be carried out for all listed species.
Such actions are initiated by the Service 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 the Service 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 and its critical habitat is designated,
section 7(a)(2) requires Federal agencies to ensure 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 the Service.
Survival and recovery, mentioned in both the definition of adverse
modification and jeopardy (see ``Effects of Critical Habitat
Designation'' section), are directly related. Survival may be viewed as
a linear continuum between recovery and extinction of the species. The
closer a species is to recovery, the greater the certainty of the
species' continued survival. Thus, the terms survival and recovery are
related by the degree of certainty that the species will persist over a
given period of time. Survival relates to viability. Factors that
influence a species' viability include population numbers, distribution
throughout the range, stochasticity, expected duration, and
reproductive success. A species may be considered recovered when there
is a high degree of certainty for the species' continued viability.
The Act's definition of critical habitat indicates that the purpose
of critical habitat is to contribute to a species' conservation, which,
by definition, means recovery. Section 7 prohibitions against the
destruction or adverse modification of critical habitat apply to
actions that would impair survival and recovery of the listed species,
thus providing a regulatory means of ensuring that Federal actions
within critical habitat are considered in relation to the goals and
recommendations of a recovery plan. As a result of the link between
critical habitat and recovery, the prohibition against destruction or
adverse modification of critical habitat should protect the critical
habitat's ability to contribute fully to a species' recovery. Thus, the
adverse modification standard may be reached closer to the recovery end
of the survival continuum, whereas the jeopardy standard traditionally
has been applied nearer to the extinction end of the continuum.
Federal actions that may affect the delta smelt or its critical
habitat, should any be designated, include those authorized, carried
out, or funded by the Army Corps of Engineers, Bureau of Reclamation,
National Marine Fisheries Service, and EPA. The Army Corps of Engineers
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 Bureau of Reclamation and California
Department of Water Resources construct, operate, and/or manage water
export facilities. EPA reviews State water quality standards and
promulgates replacement standards, pursuant to the Clean Water Act, if
the State standards are found to be inadequate. In 1991, EPA
disapproved portions of the California State Water Resources Control
Board's Water Quality Control Plan for Salinity for the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary. Accordingly, EPA has prepared
proposed replacement standards for those portions of the State's
salinity standards that were disapproved. Measures to protect the
federally listed winter-run chinook salmon, for which the National
Marine Fisheries Service has jurisdiction under the Act, also may
affect the delta smelt and may require consultation with the Service.
Under section 4 of the Act, listing of the delta smelt provided a
requirement for the development of a recovery plan. The Service
convened the Delta Native Fishes Recovery Team to prepare a recovery
plan for declining native fishes in the Sacramento-San Joaquin Estuary.
The recovery plan will develop a framework for Federal, State, and
private entities to coordinate activities and cooperate with each other
in conservation efforts. The plan will set recovery priorities and
estimate the costs of various tasks necessary to accomplish recovery
goals. Site-specific management actions necessary to achieve survival
and recovery of the delta smelt and other fishes native to the Estuary
ecosystem also will be described in this plan.
Summary of Comments and Recommendations
During the 4-month comment period following publication of the
October 3, 1991 (56 FR 50075), proposed rule to list the delta smelt as
threatened and designate its critical habitat, the Service received 360
comments (i.e., letters and oral testimony) from 348 individuals. The
Service received several letters supporting designation of delta smelt
critical habitat as proposed. Many local government agencies, water
districts, business and trade associations, and other private interests
submitted comments regarding the presumed economic effects of the
proposed critical habitat designation on industries, planned
activities, and development in specific municipalities or geographic
regions of California.
On March 16, 1993 (58 FR 14199), the Service published a notice
that the public comment period on the proposed designation of critical
habitat for the delta smelt was reopened until April 30, 1993, to allow
the Service to consider any information that previously had not been
submitted. In response, the Service received seven letters: two in
support of critical habitat designation as proposed, four in
opposition, and a letter from EPA requesting that the Service consider
the biological and hydrological information described in EPA's draft
proposed rule to promulgate Bay/Delta water quality standards.
The proposed rule to designate critical habitat for the delta smelt
has been revised to reflect the best scientific information currently
available and to ensure that the Service coordinates its final actions
with other interested Federal agencies. For this reason, the Service
will address all comments previously received on the economic impacts,
legal requirements, and interpretation of various provisions of the Act
during preparation of a final rule. Additionally, comments received
during the 60-day comment period following publication of this revised
proposed rule will be used in preparing a final rule. Only comments
addressing the issue of available scientific information used to revise
this proposed rule are responded to in this document. In its final
determination on the designation of critical habitat, the Service will
provide a thorough discussion of all comments received in response to
the original proposed rule and to this revised proposed rule.
Comment: EPA requested that in its designation of critical habitat
the Service consider the scientific information described in EPA's
draft proposed rule to promulgate water quality standards for the Bay/
Delta.
Service Response: The Service has substantially revised the primary
constituent elements in this proposed rule to reflect more closely the
historical placement of low salinity estuarine habitat in Suisun Bay.
As part of the background for formulation of its proposed water quality
standards, EPA analyzed the number of days that low salinity (2 ppt)
water historically was located at the confluence of the Sacramento and
San Joaquin Rivers, Chipps Island, and Roe Island in Suisun Bay. The
Service has revised the primary constituent elements to include those
features that provide temporal and spatial variability of low salinity
waters that will deter further invasion of exotic species, produce high
zooplankton densities for food, and simulate natural processes and
historical conditions. The ``Primary Constituent Elements'' section of
this revised proposed rule describes in detail the months that each
delta smelt life stage requires protective habitat conditions. This
revised proposal refines the primary constituent elements to more
accurately replicate historical conditions that are needed to recover
the delta smelt.
Comment: One commenter stated that the Service does not have enough
scientific data to substantiate the conclusions that the location of
low salinity habitat in Suisun Bay is important to the recovery of the
delta smelt, that delta smelt are associated with the saltwater-
freshwater mixing zone, or that water exports could adversely affect
delta smelt critical habitat as currently proposed.
Service Response: Section 4(b)(B)(2) of the Act requires that
critical habitat designations be based on the best scientific data
available. As discussed in the ``Habitat Requirements'' and ``Primary
Constituent Elements'' sections of this rule, the best available
scientific evidence shows that when the entrapment zone is located in a
broad geographic area with extensive shallow-water habitat within the
euphotic zone, high densities of phytoplankton and zooplankton are
produced (Arthur and Ball 1978, 1979, 1980) and larval and juvenile
fish, including delta smelt, grow rapidly (Moyle et al. 1992, Sweetnam
and Stevens 1993). When the entrapment zone is contained within Suisun
Bay, young delta smelt are dispersed widely throughout a large expanse
of shallow-water and marsh habitat (Harry Seraydarian, EPA, in litt.,
1993). Dispersion in areas downstream from the State and Federal water
pumps and in-Delta agricultural diversions protects young smelt from
entrainment (diverted into man-made structures or impinged on screens)
and distributes them among the extensive, protective, and highly
productive shoal regions of Suisun Bay. In contrast, high exports cause
the entrapment zone to be pulled upstream into the deep river channels
(Moyle et al. 1992). The large river channels are smaller in total
surface area, contain fewer shoal areas, have swifter, more turbulent
water currents, and lack high zooplankton densities.
Because the Service seeks to coordinate its final actions with
other interested Federal agencies and because the Service also has
received new distributional information since the October 3, 1991,
proposal to designate critical habitat for the delta smelt, the Service
hereby revises the proposal to designate critical habitat. This
proposed rule revision is based on materials received during the public
comment period and information received during numerous meetings and
discussions with State and Federal agency biologists, ichthyologists,
engineers, and hydrologists. This new proposal supersedes the October
3, 1991, proposal.
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments are
particularly sought concerning:
(1) The reasons why any habitat (either existing or additional
areas) should or should not be determined to be critical habitat as
provided by section 4 of the Act;
(2) Current or planned activities and their possible impacts on
proposed critical habitat areas;
(3) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat;
(4) Economic values associated with benefits of designating
critical habitat for the delta smelt; and
(5) The methodology the Service might use, under section 4(b)(2) of
the Act, in determining whether the benefits of excluding an area from
critical habitat outweigh the benefits of specifying the area as
critical habitat. Because the primary constituent elements used in
determining which areas to propose as critical habitat for the delta
smelt were determined in coordination with EPA in preparation of its
proposed water quality standards, the Service also encourages the
public, other concerned governmental agencies, the scientific
community, industry, or any other interested party to provide comments
or suggestions to EPA on its proposed rule to promulgate Water Quality
Standards for Surface Waters of the Sacramento River, San Joaquin
River, and San Francisco Bay and Delta of the State of California. The
Fish and Wildlife Service will consider these comments also in
developing its final rule. EPA's proposed rule is published in this
same Federal Register separate part.
The Endangered Species Act provides for a public hearing on this
proposal, if requested. Requests must be received within 45 days of the
date of publication of this revised proposal in the Federal Register.
Such requests must be made in writing and should be sent to the Acting
Field Supervisor, Sacramento Field Office (see ADDRESSES section).
As stated previously, all comments that have been received during
the preceding public comment periods on the economic impacts, legal
requirements, and biological or ecological requirements or effects of
critical habitat designation will be considered during preparation of a
final rule. Additionally, comments received during the 60-day comment
period following publication of this revised proposed rule will be used
in preparing a final rule. The final decision on the designation of
critical habitat will take into consideration the comments and any
additional information received by the Service and will include any
exclusion determinations.
National Environmental Policy Act
The Service has determined that an Environmental Assessment and/or
an Environmental Impact Statement, as defined under the authority of
the National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Act. A notice outlining the Service's reasons for this determination
was published in the Federal Register on October 25, 1983 (48 FR
49244).
Regulatory Flexibility Act and Executive Order 12866
This proposed rule has been reviewed under Executive Order 12866.
The Department of the Interior has determined that the proposed rule
will not have a significant economic effect on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Based on the information discussed in this rule concerning
public projects and private activities within critical habitat areas,
significant economic impacts will not result from the critical habitat
designation. Also, no direct costs, enforcement costs, information
collection, or recordkeeping requirements are imposed on small entities
by this designation. Further, the rule contains no recordkeeping
requirements as defined by the Paperwork Reduction Act of 1980.
Takings Implications Assessment
The Service has analyzed the potential takings implications of
designating critical habitat for the delta smelt in a Takings
Implications Assessment prepared pursuant to requirements of Executive
Order 12630, ``Governmental Actions and Interference with
Constitutionally Protected Property Rights.'' The Takings Implications
Assessment concludes that the designation does not pose significant
takings implications.
References Cited
Arthur, J.F., and M.D. Ball. 1978. Entrapment of suspended materials
in the San Francisco Bay-Delta Estuary. U.S. Dept. Interior, Bureau
of Reclamation, Sacramento, California.
Arthur, J.F., and M.D. Ball. 1979. Factors influencing the
entrapment of suspended material in the San Francisco Bay-Delta
Estuary. Pages 143-174 in T.J. Conomos, editor. Pacific Division,
Amer. Assoc. Advance. Sci., San Francisco, California.
Arthur, J.F., and M.D. Ball. 1980. The significance of the
entrapment zone location to the phytoplankton standing crop in the
San Francisco Bay-Delta Estuary. U.S. Dept. Interior, Water and
Power Resources Service.
Erkkila, L.F., J.W. Moffet, O.B. Cope, B.R. Smith, and R.S. Smith.
1950. Sacramento-San Joaquin Delta fishery resources: Effects of
Tracy Pumping Plant and the Delta Cross Channel. U.S. Fish and
Wildlife Service Special Scientific Rept. 56:1-109.
Ganssle, D. 1966. Fishes and decapods of San Pablo and Suisun Bays.
Pages 64-94 in D.W. Kelley, editor. Ecological studies of the
Sacramento-San Joaquin estuary, Part 1. Calif. Dept. Fish and Game,
Fish Bulletin 133.
Goldman, C.R., and A.J. Horne. 1983. Limnology. McGraw-Hill Book
Company, New York, New York.
Monroe, M.W., and J. Kelly. 1992. State of the estuary: A report on
conditions and problems in the San Francisco Bay/Sacramento-San
Joaquin Delta Estuary. San Francisco Estuary Project, Oakland,
California.
Moyle, P.B. 1976. Inland Fishes of California. University of
California Press, Berkeley, California.
Moyle, P.B., B. Herbold, D.E. Stevens, and L.W. Miller. 1992. Life
history and status of delta smelt in the Sacramento-San Joaquin
Estuary, California. Trans. Amer. Fish. Soc. 121:67-77.
Nichols, F.H., J.E. Cloern, S.N. Luoma, and D.H. Peterson. 1986. The
modification of an estuary. Science 231:567-573.
Radtke, L.D. 1966. Distribution of smelt, juvenile sturgeon, and
starry flounder in the Sacramento-San Joaquin Delta with
observations on food of sturgeon. Pages 115-129 in J.L. Turner and
D.W. Kelley, editors. Ecological studies of the Sacramento-San
Joaquin Delta, Part 2. Calif. Dept. Fish and Game, Fish Bulletin
136.
Stevens, D.E., L.W. Miller, and B.C. Bolster. 1990. Report to the
Fish and Game Commission: A status review of the delta smelt
(Hypomesus transpacificus) in California. Calif. Dept. Fish and Game
Candidate Species Status Report 90-2.
Sweetnam, D.A., and D.E. Stevens. 1993. Report to the Fish and Game
Commission: A status review of the delta smelt (Hypomesus
transpacificus) in California. Calif. Dept. Fish and Game Candidate
Species Status Report 93-DS.
Wang, J.C.S. 1986. Fishes of the Sacramento-San Joaquin estuary and
adjacent waters, California: A guide to the early life histories.
Interagency Ecological Study Program for the Sacramento-San Joaquin
Estuary. Tech. Rept. 9.
Wang, J.C.S. 1991. Early life stages and early life history of the
delta smelt, Hypomesus transpacificus, in the Sacramento-San Joaquin
estuary, with comparison of early life stages of the longfin smelt,
Spirinchus thaleichthys. Interagency Ecological Studies Program for
the Sacramento-San Joaquin Estuary. Tech. Rept. 28.
Author
The primary author of this proposed rule is Nadine R. Kanim,
Sacramento Field Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulations Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
Sec. 17.11 [Amended]
2. Amend Sec. 17.11(h), in the entry in the table under FISHES for
``Smelt, delta,'' in the column under ``Critical habitat'' by revising
``NA'' to read ``17.95(e).''
3. Amend Sec. 17.95(e) by adding critical habitat of the delta
smelt in the same alphabetical order as the species occurs in
Sec. 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
(e) * * *
* * * * *
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Delta Smelt (Hypomesus transpacificus)
California: Areas of all water and all submerged lands below
ordinary high water and the entire water column bounded by and
contained in Suisun Bay (including the contiguous Grizzly and Honker
Bays); the length of Montezuma Slough; and the existing contiguous
waters contained within the Delta, as defined by section 12220, of
the State of California's Water Code of 1969 (a complex of bays,
dead-end sloughs, channels typically less than 4 meters deep,
marshlands, etc.) as follows:
Bounded by a line beginning at the Carquinez Bridge which
crosses the Carquinez Strait, thence northeasterly along the western
and northern shoreline of Suisun Bay, including Goodyear, Suisun,
Cutoff, First Mallard (Spring Branch), and Montezuma Sloughs; thence
upstream to the intersection of Montezuma Slough with the western
boundary of the Delta as delineated in section 12220 of the State of
California's Water Code of 1969; thence following the boundary and
including all contiguous water bodies contained within the statutory
definition of the Delta, to its intersection with the San Joaquin
River at its confluence with Suisun Bay; thence westerly along the
south shore of Suisun Bay to the Carquinez Bridge.
BILLING CODE 4310-55-P
TP06JA94.010
BILLING CODE 4310-55-C
Primary Constituent Elements: Physical habitat, water, river
flow, and salinity concentrations required to maintain delta smelt
habitat for spawning, larval and juvenile transport, rearing, and
adult migration.
Dated: December 10, 1993.
Richard N. Smith,
Acting Director, Fish and Wildlife Service.
[FR Doc. 94-90 Filed 1-5-94; 8:45 am]
BILLING CODE 4310-55-P
