[Federal Register Volume 59, Number 242 (Monday, December 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31063]


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[Federal Register: December 19, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB66

 

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) designates critical 
habitat for the threatened delta smelt (Hypomesus transpacificus) 
pursuant to the Endangered Species Act of 1973, as amended (Act) (16 
U.S.C. 1531 et seq.). This final rule designates critical habitat for 
the delta smelt in the following geographic areas--areas of all water 
and all submerged lands below ordinary high water and the entire water 
column bounded by and contained in Suisun Bay (including the contiguous 
Grizzly and Honker Bays); the length of Goodyear, Suisun, Cutoff, First 
Mallard (Spring Branch), and Montezuma sloughs; and the existing 
contiguous waters contained within the Delta, as defined in section 
12220 of the California Water Code. Critical habitat designation for 
the delta smelt will provide additional protection under section 7 of 
the Act with regard to activities that require Federal agency action.

EFFECTIVE DATE: January 18, 1995.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at U.S. Fish and Wildlife 
Service, Sacramento Field Office, 2800 Cottage Way, Room E-1803, 
Sacramento, California 95825-1846.

FOR FURTHER INFORMATION CONTACT: Joel A. Medlin, Sacramento Field 
Office (see ADDRESSES section) at (916) 978-4613.

SUPPLEMENTARY INFORMATION:

Background

    Historically, the delta smelt is thought to have occurred from 
Suisun Bay upstream to the City of Sacramento on the Sacramento River 
and the City of Mossdale on the San Joaquin River (Moyle et al. 1992). 
The delta smelt is a euryhaline species (tolerant of a wide salinity 
range) that spawns in fresh water and has been collected from estuarine 
waters up to 14 grams per liter (equivalent to ppt) salinity (Moyle et 
al. 1992). For a large part of its annual life span, this species is 
associated with the freshwater edge of the mixing zone (zone of mixing 
or entrapment at the saltwater-freshwater interface), where the 
salinity is approximately 2 ppt (Ganssle 1966, Moyle et al. 1992, 
Sweetnam and Stevens 1993).
    Shortly before spawning, adult delta smelt migrate upstream from 
the highly productive brackish-water habitat associated with the mixing 
zone to disperse widely into river channels and tidally-influenced 
backwater sloughs (Radtke 1966, Moyle 1976, Wang 1991).
    Delta smelt spawn in shallow, fresh or slightly brackish water 
upstream of the mixing zone (Wang 1991), mostly in tidally-influenced 
backwater sloughs and channel edgewaters (Moyle 1976; Wang 1986, 1991; 
Moyle et al. 1992). Although delta smelt spawning behavior has not been 
observed in the wild (Moyle et al. 1992), the adhesive eggs are thought 
to attach to substrates such as cattails and tules, tree roots, and 
submerged branches (Moyle 1976, Wang 1991). In the Delta, spawning is 
known to occur in the Sacramento River and in Barker, Lindsey, Cache, 
Georgiana, Prospect, Beaver, Hog, and Sycamore sloughs (Wang 1991; Dale 
Sweetnam, pers. comm., 1993). Delta smelt also spawn north of Suisun 
Bay in Montezuma and Suisun sloughs and their tributaries (Lesa Meng, 
pers. comm., 1993; Dale Sweetnam, pers. comm., 1993).
    The spawning season varies from year to year and may occur from 
late winter (December) to early summer (July and August). Moyle (1976) 
collected gravid adults from December to April, although ripe delta 
smelt were most common in February and March. In 1989 and 1990, Wang 
(1991) estimated that spawning had taken place from mid-February to 
late June or early July, with the peak spawning period occurring in 
late April and early May. In 1993, a wet year, spawning may have 
occurred as early as January and extended into June (Dale Sweetnam, 
pers. comm., 1994). Peak spawning occurred in April of that year. In 
1994, a critically dry year, peak spawning occurred at the end of 
April, and may have begun as early as late February or early March 
(Dale Sweetnam, pers. comm., 1994).
    In the laboratory, delta smelt eggs hatch in 10 to 14 days (Randy 
Mager, University of California, pers. comm., 1993). Laboratory 
observations indicate that delta smelt are broadcast spawners that 
spawn in a current, usually at night, distributing their eggs over a 
local area (Lindberg 1992, Mager 1993). Eggs attach singly to the 
substrate, and few eggs were found on vertical plants (Lindberg 1993). 
Lindberg (1993) found that yolk-sac fry were positively phototactic and 
negatively buoyant. After hatching, larvae are transported downstream 
toward the mixing zone where they are retained by the vertical 
circulation of fresh and salt waters (Stevens et al. 1990). The pelagic 
larvae feed on phytoplankton until day 4, begin to feed on rotifers on 
day 6 and Artemis nauplii on day 14 (Mager 1992). Juveniles feed 
exclusively on zooplankton. When the mixing zone is located in a broad 
geographic area with extensive shallow-water habitat within the 
euphotic zone (depths less than 4 meters), high densities of 
phytoplankton and zooplankton are produced (Arthur and Ball 1978, 1979, 
1980), and larval and juvenile fish, including delta smelt, grow 
rapidly (Moyle et al. 1992, Sweetnam and Stevens 1993). When given the 
opportunity, delta smelt remain in Suisun Bay even after the 2 ppt 
isohaline has retreated upstream (Herbold 1994). In general, estuaries 
are among the most productive ecosystems in the world (Goldman and 
Horne 1983). Estuarine environments produce an abundance of fish as a 
result of plentiful food and shallow, protective habitat for young.
    When the mixing zone is contained within Suisun Bay, young delta 
smelt are dispersed widely throughout a large expanse of shallow-water 
and marsh habitat. Dispersal in areas downstream from the State and 
Federal water pumps and in-Delta agricultural diversions protects young 
delta smelt from entrainment and distributes them among the extensive, 
protective, and highly productive shoal regions of Suisun Bay. In 
contrast, when located upstream, the mixing zone becomes confined in 
the deep river channels, which are smaller in total surface area, 
contain fewer shoal areas, have swifter, more turbulent water currents, 
and lack high zooplankton productivity. Vulnerability to entrainment in 
the State and Federal pumping facilities and in-Delta diversions 
increases.
    Erkkila et al. (1950) collected young delta smelt near Sherman 
Island, at the confluence of the Sacramento and San Joaquin Rivers, in 
July and August of 1948. In studies by the California Department of 
Fish and Game, California Department of Water Resources (DWR), and the 
Bureau, larval and juvenile delta smelt were collected from Roe Island 
in Suisun Bay north to the confluence of the Sacramento and Feather 
Rivers and east to Medford Island on the San Joaquin River (Wang 1991). 
These studies were conducted during the months of April through mid-
July in 1989 and 1990. Through these distribution surveys, Wang (1991) 
was able to document the movement of juvenile delta smelt from the 
Delta to Suisun Bay in late June and early July. In 1990, young delta 
smelt were taken at the Tracy Pumping Plant at the end of February 
(Wang 1991).
    The delta smelt is adapted to living in the highly productive 
Sacramento-San Joaquin River Estuary (Estuary) where salinity varies 
spatially and temporally according to tidal cycles and the amount of 
freshwater inflow. Despite this tremendously variable environment, the 
historical Estuary probably offered relatively constant suitable 
habitat conditions to delta smelt, which could move upstream or 
downstream with the mixing zone (Peter Moyle, University of California, 
pers. comm., 1993). Since the 1850's, however, the amount and extent of 
suitable habitat for the delta smelt has declined dramatically. The 
advent in 1853 of hydraulic mining in the Sacramento and San Joaquin 
Rivers led to increased siltation and alteration of the circulation 
patterns of the Estuary (Nichols et al. 1986, Monroe and Kelly 1992). 
The reclamation of Merritt Island for agricultural purposes in the same 
year marked the beginning of the present-day cumulative loss of 94 
percent of the Estuary's tidal marshes (Nichols et al. 1986, Monroe and 
Kelly 1992).
    In addition to this degradation and loss of estuarine habitat, the 
delta smelt has been increasingly subject to entrainment, upstream or 
reverse flows of waters in the Delta and San Joaquin River, and 
constriction of habitat in the less productive, deep-water river 
channels of the Delta (Moyle et al. 1992). These adverse conditions are 
primarily a result of the steadily increasing proportion of water 
diverted from the Delta by the Federal and State water projects (Monroe 
and Kelly 1992). Water delivery through the Federal Central Valley 
Project (CVP) began in water year 1940. The State Water Project (SWP) 
began delivering water in 1968. However, the proportion of fresh water 
being diverted has increased since 1983 and has remained at high levels 
(Moyle et al. 1992). A relationship has been found between the number 
of juvenile delta smelt salvaged at the State and Federal pumps and 
both the percent of inflow diverted and total Delta outflow (California 
Department of Water Resources and Bureau of Reclamation 1994). The high 
proportion of fresh water exported has exacerbated the already harsh 
environmental conditions experienced by the delta smelt during the 
recent 6-year drought (1987-1992). The March 5, 1993 (58 FR 12854), 
final rule listing the delta smelt as a threatened species describes in 
detail the factors that have led to this species' decline.

Previous Service Action

    In the January 6, 1989 (54 FR 554), Animal Notice of Review, the 
Service included the delta smelt as a category 1 candidate species. 
Category 1 includes species for which data in the Service's possession 
are sufficient to support proposals for listing. On June 29, 1990, the 
Service received a petition dated June 26, 1990, from Dr. Don C. Erman, 
President-Elect of the California-Nevada Chapter of the American 
Fisheries Society, to list the delta smelt as an endangered species and 
designate its critical habitat. The Service made a 90-day finding that 
substantial information had been presented indicating that the 
petitioned action may be warranted and announced this decision in the 
Federal Register on December 24, 1990 (55 FR 52852). On October 3, 1991 
(56 FR 50075), the Service published a proposal to list the delta smelt 
as a threatened species and to designate critical habitat. This 
proposed rule constituted the 12-month petition finding in accordance 
with section 4(b)(3)(B) of the Act.
    Critical habitat was proposed for areas of all water and all 
submerged lands below ordinary high water and the entire water column 
bounded by and contained within Suisun Bay (including the contiguous 
Grizzly and Honker Bays), the length of Montezuma Slough, portions of 
the Sacramento River, portions of the Sacramento-San Joaquin Delta, 
portions of the San Joaquin River, and the contiguous water bodies in 
between (a complex of bays, dead-end sloughs, channels typically less 
than four meters deep, marshlands, etc.), contained in the State of 
California. The public comment period opened on the date of publication 
of the proposed rule (October 3, 1991) and closed on January 31, 1992.
    On December 19, 1991 (56 FR 65877), the Service published a notice 
of public hearing on the proposed rule to be held in three locations in 
California. Public hearings were conducted on January 9, 1992, in 
Sacramento; on January 14, 1992, in Santa Monica; and on January 16, 
1992, in Visalia.
    The final rule listing the delta smelt as a threatened species was 
published on March 5, 1993 (58 FR 12854). In the final rule, the 
Service postponed the decision on critical habitat designation. At that 
time, the economic analysis necessary to determine critical habitat was 
still in progress. On March 16, 1993 (58 FR 14199), the Service 
reopened the public comment period until April 30, 1993, to allow the 
Service to consider any economic or biological information that 
previously had not been submitted.

Revisions to the October 3, 1991, Critical Habitat Proposal

    The Service published a revision to the October 3, 1991, proposed 
rule to designate critical habitat for the delta smelt on January 6, 
1994 (59 FR 852). The revision was based primarily on information 
gathered by the California Department of Fish and Game (Dale Sweetnam, 
California Department of Fish and Game, pers. comm., 1993) and the 
University of California, Davis (Lesa Meng, U.S. Fish and Wildlife 
Service pers. comm., 1993). This information showed that in 1993, delta 
smelt spawned in the Sacramento River, at least as far upstream as the 
City of Sacramento and in tidally-influenced shallow freshwater sloughs 
(Dale Sweetnam, pers. comm., 1993). In 1991, when delta smelt had all 
but disappeared from Suisun Marsh, relatively large numbers of delta 
smelt were caught in Suisun Slough, as far upstream as Suisun City 
(Lesa Meng, pers. comm., 1993). The revised rule proposed to expand the 
geographic extent of critical habitat to include additional areas now 
known to constitute important spawning habitat.
    In addition, in an April 23, 1993, letter received during the 
public comment period, the Environmental Protection Agency (EPA) 
requested that new scientific information presented in its draft 
proposed Bay/Delta water quality standards be considered in the 
Service's designation of critical habitat. The water quality standards 
were to apply to the surface waters of the Sacramento River, San 
Joaquin River, and San Francisco Bay and Delta of the State of 
California (Bay/Delta) pursuant to section 303 of the Clean Water Act 
(CWA). As a result of EPA's analysis respecting the number of days that 
low-salinity water was historically located at three locations in the 
Estuary, the Service refined the description of the constituent 
elements for the delta smelt. The proposed critical habitat was revised 
therefore to encompass upstream spawning habitats and to better define 
constituent elements necessary to protect those areas essential to the 
recovery of the species. Comment on the revised proposal and its draft 
economic analysis was solicited.
    On the same date that the Service published its revised critical 
habitat rule, the Service proposed the Sacramento splittail 
(Pogonichthys macrolepidotus) as a threatened species and EPA published 
its proposed rule to establish water quality standards for surface 
waters of the Sacramento River, San Joaquin River, and San Francisco 
Bay and Delta pursuant to section 303 of the CWA. Those water quality 
standards are meant to protect the estuary as a whole, and therefore 
contain more than the salinity criterion. EPA's water quality proposal 
also includes salmon smolt survival criteria to protect fish migration 
and cold freshwater habitat designated uses in the estuary in its 
January 6, 1994, rule, along with proposed striped bass spawning 
criteria.
    Designation of critical habitat at this time is part of a 
coordinated effort between the Service, EPA, National Marine Fisheries 
Service (NMFS), and the Bureau of Reclamation (Bureau) (collectively, 
``Club Fed'') to protect and recover the delta smelt and the Estuary 
ecosystem.

Relationship Between Fish and Wildlife Service and EPA Actions

    The Service and EPA recognized that their proposed regulatory 
actions (e.g., delta smelt critical habitat and EPA's water quality 
standards) overlapped biologically and economically. As such, both 
agencies worked closely to provide a comprehensive, ecosystem-based 
approach for the protection of the fish and wildlife resources of the 
Estuary. This coordination has resulted in regulatory actions that are 
integrated in both substance and timing.
    Biologically, the critical habitat designation for the delta smelt 
and the salinity criteria within EPA's water quality standards are 
directly related. Specifically, salinities of 2 ppt in Suisun Bay were 
identified as a primary constituent element in the October 3, 1991, 
critical habitat proposal. Subsequent scientific publications indicate 
that salinities associated with the distribution of delta smelt may 
provide the best basis for setting standards for many species that are 
affected by freshwater discharge from the Estuary (Moyle et al. 1992; 
San Francisco Estuary Project 1993). Favorable conditions from February 
through June are important to the abundance and reproductive success of 
almost all species that live in or migrate through the upper Estuary. 
Because EPA's water quality standards address the location of 2 ppt 
salinities from February to June, its standards will address certain 
critical habitat (water quality) requirements for delta smelt.
    In the text of the January, 6, 1994, proposed rule to designate 
critical habitat for the delta smelt, the Service identified specific 
salinity criteria required to maintain habitat for delta smelt through 
its entire life cycle. These criteria had been determined in 
coordination with EPA in preparation of its proposed water quality 
standards. Subsequent to publication of the critical habitat proposed 
rule, the Service received many comments objecting to the specificity 
of the salinity criteria. During numerous discussions with interested 
parties (and in the following response to comments), Service staff have 
explained that the detailed discussion within the text of the proposed 
rule was meant to clearly describe the need for including a water 
quality criterion specific to salinity as one primary constituent 
element. The actual regulation that was proposed for publication in the 
Code of Federal Regulations, however, was much less specific as to 
allow broad flexibility in implementation of the provisions of the Act. 
Therefore, to clarify the Service's intent to preserve the flexibility 
inherent in implementation of the section 7 regulations, the following 
discussion of the primary constituent elements necessary to define 
delta smelt critical habitat, is general in scope. However, the Service 
has coordinated carefully and extensively with EPA to ensure that EPA's 
final rule promulgating Water Quality Standards for Surface Waters of 
the Sacramento River, San Joaquin River, and San Francisco Bay and 
Delta of the State of California affords sufficient protection to 
further the recovery of the delta smelt. EPA's final rule is published 
in this same Federal Register, in a separate part. In its proposed 
rule, EPA requested that specific comments be submitted on several 
issues, including the possibility of modifying the Sacramento River 
Index for the purposes of developing the salinity criteria, alternative 
approaches to the averaging period used in its proposed salinity 
criteria, and evaluation of the merits of the use of different forms of 
confidence intervals with the proposed criteria. In developing this 
final rule, the Service has considered all such comments. These issues 
also were discussed with EPA in regard to the development of its water 
quality standards and the Service's section 7 consultation with EPA on 
promulgation of these standards.
    Section 7 of the Act requires that all Federal agencies ensure that 
their actions do not jeopardize the continued existence of listed 
species or adversely modify designated critical habitat. EPA's action 
in promulgating water quality standards must comply with the section 7 
consultation requirement.

Definition of Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as ``(i) 
the specific areas within the geographical area occupied by the species 
at the time it is listed * * * on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protection; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed * * * upon a 
determination * * * that such areas are essential for the conservation 
of the species.'' The term ``conservation'', as defined in section 3(3) 
of the Act, means ``* * * to use and the use of all methods and 
procedures which are necessary to bring an endangered species or 
threatened species to the point at which the measures provided pursuant 
to this Act are no longer necessary.'' With recovery, no protection 
from the Act is necessary. Therefore, areas designated as critical 
habitat must contain those physical or biological features essential to 
recover a species to the point that it no longer requires protection 
under the Act and can be removed from the list of endangered and 
threatened species. Section 3(c) further states that in most cases the 
entire range of a species should not be encompassed within critical 
habitat. Areas outside the present geographic range may be included as 
critical habitat if a species' present range would be inadequate to 
ensure conservation of the species.

Role in Species Conservation

    Use of the term ``conservation'' in the definition of critical 
habitat indicates that its designation should identify areas that may 
be needed for a species' recovery and delisting.
    The designation of critical habitat will not, in itself, lead to 
recovery, but is one of several measures available to contribute to a 
species' recovery. Critical habitat helps focus conservation activities 
by identifying areas that contain essential habitat features (primary 
constituent elements) regardless of whether or not they are currently 
occupied by the listed species, thus alerting the public to the 
importance of an area in the conservation of a listed species. Critical 
habitat also identifies areas that may require special management or 
protection. Critical habitat receives protection under section 7 of the 
Act with regard to actions carried out, funded, or authorized by 
Federal agencies. Section 7 requires that Federal agencies consult on 
actions that may affect critical habitat to ensure that their actions 
are not likely to destroy or adversely modify critical habitat. This 
additional protection to a species' habitat may actually shorten the 
time needed to achieve recovery. Aside from this added protection 
provided by section 7, the Act does not provide other direct forms of 
protection to lands designated as critical habitat.
    Designating critical habitat does not create a management plan, 
establish numerical population goals, prescribe specific management 
actions (inside or out of critical habitat), nor does it have a direct 
effect on areas not designated as critical habitat. Specific management 
recommendations for critical habitat are more appropriately addressed 
in recovery plans, management plans, and section 7 consultations.
    Critical habitat identifies specific areas essential to the 
conservation of a species. Areas with one or more essential features 
but not currently containing all of the features and areas having the 
capability to provide essential features in the future, may be required 
for the long-term recovery of the species. This may be so particularly 
in certain portions of its range. However, not all areas containing all 
features of a listed species' habitat are necessarily essential to the 
species' recovery. Areas not included in critical habitat that contain 
one or more of the essential elements are still important to a species' 
conservation and may be addressed under other facets of the Act and 
other conservation laws and regulations. All designated areas also may 
be of considerable value in maintaining ecosystem integrity and 
supporting other species.
    Designation of critical habitat may be reevaluated and revised, at 
any time, when new information indicates that changes are warranted. 
The Service may revise critical habitat if management plans, recovery 
plans, or other conservation strategies are developed and fully 
implemented, reducing the need for the additional protection provided 
by critical habitat designation. For example, after the draft Delta 
Native Fishes Recovery Plan (Recovery Plan) is finalized or the State 
promulgates more protective water quality standards for the Estuary 
than are currently in place, land and water management agencies may 
provide increased protection for the delta smelt. If these protection 
measures are implemented, the Service may revise its critical habitat 
designation.

Primary Constituent Elements

    In determining which areas to designate as critical habitat, the 
Service considers those physical and biological features that are 
essential to a species' conservation (50 CFR 424.12(b)). The Service is 
required to list the known primary constituent elements together with a 
description of any critical habitat that is proposed. Such physical and 
biological features (i.e., primary constituent elements) include, but 
are not limited to, the following:
    (1) Space for individual and population growth, and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, rearing of offspring, 
germination, or seed dispersal; and
    (5) Generally, habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The primary constituent elements essential to the conservation of 
the delta smelt are physical habitat, water, river flow, and salinity 
concentrations required to maintain delta smelt habitat for spawning, 
larval and juvenile transport, rearing, and adult migration.
    The primary constituent elements are organized by habitat 
conditions required for each life stage. The specific geographic areas 
and seasons identified for each habitat condition represent the maximum 
possible range of each of these conditions. Depending on the water-year 
type (i.e., wet, above normal, normal, below normal, dry, critically 
dry), each of the habitat conditions specified below requires 
fluctuation (within-year and between-year) in the placement of the 2 
ppt isohaline (a line drawn to connect all points of equal salinity) 
around three historical reference points. These three historical 
reference points are the Sacramento-San Joaquin River confluence, the 
upstream limit of Suisun Bay at Chipps Island, and in the middle of 
Suisun Bay at Roe Island. The actual number of days that the 2 ppt 
isohaline is maintained at the three points varies according to water-
year type.
    In addition, to maintain habitat conditions necessary to achieve 
recovery of the delta smelt, the number of days at each reference point 
must simulate a level of water project development equivalent to that 
which historically existed in 1968. A 1968 level of development 
represents a period of time before Delta outflow was affected by the 
SWP and the delta smelt was abundant. This year (1968) falls within the 
time period identified by the Delta Native Fishes Recovery Team as 
having had appropriate hydrologic conditions that would allow recovery 
of the delta smelt. Additionally, on June 15, 1994, the Regional 
Director signed an Interagency Statement of Principles among the 
Service, NMFS, and EPA (Plenert, Fullerton, and Seraydarian, in litt. 
1994) stating, in part, despite the effects of the water projects that 
were operating at that time, the Estuary ecosystem and its anadromous 
and resident fisheries were relatively healthy during the years between 
1960 and 1970.
    Further, to maintain suitable habitat conditions for recovery of 
the delta smelt, the naturally-occurring variability found in healthy 
estuarine ecosystems must be preserved for the following reasons--(1) 
temporal and spatial variability of the 2 ppt isohaline will be the 
most effective deterrent to further invasion of newly introduced 
species and continued competition by those that are already 
established, (2) placement of the 2 ppt isohaline in Suisun Bay will 
produce the high phytoplankton and zooplankton densities that 
characterize most healthy estuarine ecosystems, and (3) variability is 
needed to simulate natural processes and historical conditions.
    The primary constituent elements for the delta smelt are:
    Spawning Habitat--Delta smelt adults seek shallow, fresh or 
slightly brackish backwater sloughs and edgewaters for spawning. To 
ensure egg hatching and larval viability, spawning areas also must 
provide suitable water quality (i.e., low concentrations of pollutants) 
and substrates for egg attachment (e.g., submerged tree roots and 
branches and emergent vegetation). Specific areas that have been 
identified as important delta smelt spawning habitat include Barker, 
Lindsey, Cache, Prospect, Georgiana, Beaver, Hog, and Sycamore sloughs 
and the Sacramento River in the Delta, and tributaries of northern 
Suisun Bay. The spawning season varies from year to year and may start 
as early as December and extend until July.
    Larval and Juvenile Transport--To ensure that delta smelt larvae 
are transported from the area where they are hatched to shallow, 
productive rearing or nursery habitat, the Sacramento and San Joaquin 
Rivers and their tributary channels must be protected from physical 
disturbance (e.g., sand and gravel mining, diking, dredging, and levee 
or bank protection and maintenance) and flow disruption (e.g., water 
diversions that result in entrainment and in-channel barriers or tidal 
gates). Adequate river flow is necessary to transport larvae from 
upstream spawning areas to rearing habitat in Suisun Bay. Additionally, 
river flow must be adequate to prevent interception of larval transport 
by the State and Federal water projects and smaller agricultural 
diversions in the Delta. To ensure that suitable rearing habitat is 
available in Suisun Bay, the 2 ppt isohaline must be located westward 
of the Sacramento-San Joaquin River confluence during the period when 
larvae or juveniles are being transported, according to the historical 
salinity conditions which vary according to water-year type. Reverse 
flows that maintain larvae upstream in deep-channel regions of low 
productivity and expose them to entrainment interfere with these 
transport requirements. Suitable water quality must be provided so that 
maturation is not impaired by pollutant concentrations. The specific 
geographic area important for larval transport is confined to waters 
contained within the legal boundary of the Delta, Suisun Bay, and 
Montezuma Slough and its tributaries. The specific season when habitat 
conditions identified above are important for successful larval 
transport varies from year to year, depending on when peak spawning 
occurs and on the water-year type. The Service identified situations in 
the biological opinion for the delta smelt (1994) where additional 
flows might be required in the July-August period to protect delta 
smelt that were present in the south and central Delta from being 
entrained in the State and Federal project pumps, and to avoid jeopardy 
to the species. The long-term biological opinion on CVP-SWP operations 
will identify situations where additional flows may be required after 
the February through June period identified by EPA for its water 
quality standards to protect delta smelt in the south and central 
Delta.
    Rearing Habitat--Maintenance of the 2 ppt isohaline according to 
the historical salinity conditions described above and suitable water 
quality (low concentrations of pollutants) within the Estuary is 
necessary to provide delta smelt larvae and juveniles a shallow, 
protective, food-rich environment in which to mature to adulthood. This 
placement of the 2 ppt isohaline also serves to protect larval, 
juvenile, and adult delta smelt from entrainment in the State and 
Federal water projects. An area extending eastward from Carquinez 
Strait, including Suisun Bay, Grizzly Bay, Honker Bay, Montezuma Slough 
and its tributary sloughs, up the Sacramento River to its confluence 
with Three Mile Slough, and south along the San Joaquin River including 
Big Break, defines the specific geographic area critical to the 
maintenance of suitable rearing habitat. Three Mile Slough represents 
the approximate location of the most upstream extent of tidal excursion 
when the historical salinity conditions described above are 
implemented. Protection of rearing habitat conditions may be required 
from the beginning of February through the summer.
    Adult Migration--Adult delta smelt must be provided unrestricted 
access to suitable spawning habitat in a period that may extend from 
December to July. Adequate flow and suitable water quality may need to 
be maintained to attract migrating adults in the Sacramento and San 
Joaquin River channels and their associated tributaries, including 
Cache and Montezuma sloughs and their tributaries. These areas also 
should be protected from physical disturbance and flow disruption 
during migratory periods.
    To conserve the delta smelt, this final rule designates critical 
habitat in an area encompassing the specific habitat conditions 
required by each life stage identified above. Accordingly, critical 
habitat is designated in the following geographic area--areas of all 
water and all submerged lands below ordinary high water and the entire 
water column bounded by and contained in Suisun Bay (including the 
contiguous Grizzly and Honker Bays); the length of Goodyear, Suisun, 
Cutoff, First Mallard (Spring Branch), and Montezuma sloughs; and the 
existing contiguous waters contained within the Delta. Thus, critical 
habitat for the delta smelt is contained within Contra Costa, 
Sacramento, San Joaquin, Solano, and Yolo Counties, California. The 
``Regulation Promulgation'' section provides a precise metes and bounds 
description of critical habitat designated for the delta smelt.

Effects of Critical Habitat Designation

    Section 4(b)(8) of the Act requires for any proposed or final 
regulation that designates critical habitat a brief description and 
evaluation of those activities (public or private) that may adversely 
modify such habitat or may be affected by such designation. At the time 
of preparation of the revised proposed rule, the Service identified the 
following list of proposed or ongoing actions whose effects likely 
would jeopardize the delta smelt and adversely modify or destroy its 
critical habitat--Central Valley Project operations, State Water 
Project operations, deep water navigation channel dredging, reoperation 
of Folsom Dam, Oroville Dam, and Auburn Dam, Central Valley and State 
Water Project Wheeling Purchase Agreement, San Joaquin Valley Drainage 
Program, Central Valley Project water contract renewals, petition by 
the Bureau for a change in diversion point, South Delta Water 
Management, South Delta Temporary Barriers Project, Stanislaus-
Calaveras River Basin Water Use Program, Phases 3 and 4 of the Suisun 
Marsh Project, North Delta Water Management Project, West Delta Water 
Management Project, Delta Wetlands Water Storage Project, Los Banos 
Grandes Reservoir, Los Vaqueros Reservoir, Kern Water Bank, full 
operation of four State Water Project pumps, entrainment of fish and 
thermal pollution by industry (e.g., power generation facilities), 
urban or agricultural nonpoint contaminant discharges, in-Delta and 
Suisun Marsh water diversion, Phase 2 of the Coastal Aqueduct, and the 
Delta Levee Subvention Program. Since publication of the revised 
proposed rule, the Service has determined through section 7 
consultations that the South Delta Temporary Barriers Project, deep 
water navigation channel dredging, Los Vaqueros Reservoir Project, and 
Phase 2 of the Coastal Aqueduct Project will not jeopardize the delta 
smelt.
    The proposed rule to revise the critical habitat designation did 
not identify any proposed actions that might jeopardize the delta smelt 
without adversely affecting critical habitat. In the revised proposed 
rule, the Service did identify (based on section 7 consultation 
experiences) five activities that, depending on the season of 
construction and scale of the project, might result in the destruction 
or adverse modification of critical habitat without necessarily 
jeopardizing the continued existence of the delta smelt. These 
activities were:
    (1) Sand and gravel extraction in river channels or marshes;
    (2) Diking wetlands for conversion to farmland and dredging to 
maintain these dikes;
    (3) Levee maintenance and bank-protection activities, such as 
riprapping, removal of vegetation, and placement of dredged materials 
on levees of banks;
    (4) Operation of the Montezuma Slough Control Structure; and
    (5) Bridge and marina construction.
    Construction and implementation of each of these five actions 
requires authorization by the Army Corps of Engineers (Corps) pursuant 
to section 10 of the Rivers and Harbors Act of 1899 and section 404 of 
the CWA and therefore are considered Federal actions. In a section 7 
consultation with the Bureau and the California Department of Fish and 
Game, California Department of Water Resources (DWR), the Service 
reviewed the operation of the Montezuma Slough Control Structure for 
effects on delta smelt. As a result, DWR and the Bureau sponsored an 
investigation of the effects of the operation of the Structure on delta 
smelt, and DWR committed to operate the gates only as required to meet 
existing Suisun Marsh salinity standards. When not operating, the gates 
on the Structure will remain in the raised position. The effect of gate 
operation on delta smelt is currently being studied, and the Service 
will make a determination on the Structure's operations in the near 
future. As to the other actions, the Service will consult with the 
Corps as these actions arise.
    On February 4, 1994, subsequent to the publication of the January 
6, 1994, revised proposed rule to designate critical habitat, the 
Service transmitted to the Bureau a jeopardy biological opinion on the 
combined operation of the Federal and State Water Projects on the delta 
smelt through February 1995. In the 1994 biological opinion, the 
Service determined that the proposed operation of the Federal and State 
Water Projects likely would jeopardize the continued existence of the 
delta smelt and would destroy or adversely modify proposed critical 
habitat. This one-year opinion did not recommend a reasonable and 
prudent alternative that distinguished between the number of days of 
compliance with the 2 ppt criteria to avoid jeopardy and the number of 
days of compliance that would have been required to avoid destruction 
or adverse modification of proposed critical habitat. The Service 
acknowledges that such a distinction may be appropriate in future 
biological opinions.
    Any possible revisions to the biological opinion will recognize 
three major initiatives that will shape the dynamics of future 
estuarine conditions for delta smelt. First, in accordance with a 
Framework Agreement (1994) between the Governor's Water Policy Council 
of the State of California (Council) and Club Fed, the State Board will 
seek agreement with DWR and the U.S. Department of the Interior to 
operate the SWP and CVP to make an equitable contribution to meeting 
the revised water quality standards beginning calendar year 1995. The 
Board will seek this agreement while they are working on a water rights 
decision to allocate responsibility among water rights holders in the 
Bay-Delta watershed. Second, section 7(a)(1) of the Act imposes an 
affirmative obligation on Federal agencies to carry out programs for 
the conservation (recovery) of listed species. With the forthcoming 
issuance of a Delta Native Fishes Recovery Plan, currently in 
preparation, the Service expects that local, State, and Federal 
agencies will fulfill their responsibilities by assisting in the 
completion of tasks and objectives in the plan. Third, and related to 
number two, the scheduled renewal of water contracts (i.e., reopened or 
expired Federal Energy Regulatory Commission (FERC) licenses, expired 
CVP water contracts) will provide an additional opportunity under 
sections 7(a)(1) and 7(a)(2) of the Act to implement Recovery Plan 
objectives and meet EPA's water quality standards. Collectively, these 
initiatives likely will result in a phased improvement to water quality 
based habitat requirements for the delta smelt. Accordingly, the 
Service anticipates that adverse modification or destruction of 
critical habitat will be avoided by operation of the CVP, SWP, and 
other water management facilities with implementation of the above 
described initiatives.

Consideration of Economic and Other Factors

    Section 4(b)(2) of the Act requires the Service to consider 
economic and other relevant impacts of specifying any particular area 
to be included within the critical habitat boundary. EPA, in 
coordination with the Service, included an analysis of the effects of 
designation of critical habitat for the delta smelt in its draft 
Regulatory Impact Assessment (RIA) for its proposed water quality 
standards. A summary of that analysis was provided in the revised 
proposed rule designating critical habitat for the delta smelt (59 FR 
852).
    The Service stated in the revised proposed rule that if the final 
economic analysis substantially differed from the draft analysis 
summarized in the revised proposed rule, a revised analysis would be 
made available for public comment. No opportunity for public comment 
was afforded because the results of the final economic analysis do not 
substantially differ from the results of the draft analysis.
    EPA's economic analysis assumes that the economic impact of 
restricting activities associated with construction and implementation 
of major water projects would be attributable to the jeopardy standard 
imposed by listing the delta smelt as a threatened species, as opposed 
to designation of critical habitat. Specifically, the impacts of 
designating critical habitat are in addition to the economic and other 
impacts attributable to (1) listing of the species, (2) economic 
effects resulting from conservation actions taken by other Federal 
agencies under section 7(a)(1) of the Act, and (3) regulatory actions 
required by other laws.
    Section 9 of the Act and Service regulations prohibit the taking of 
delta smelt without express authorization from the Service. Under 
Service regulations, ``take'' may include significant habitat 
modification or degradation that actually kills or injures protected 
species. In addition, Federal agencies must consult with the Service to 
ensure that their actions are not likely to jeopardize the continued 
existence of the listed species. An action could jeopardize the 
existence of a listed species if it destroys or modifies its habitat. 
This is so regardless of whether that habitat has been designated as 
critical habitat. Therefore, the direct economic and other impacts 
resulting from designation of critical habitat are relatively small 
because the Act provides substantial protection to habitat through 
listing of the species itself. In general, designation of critical 
habitat supplements the protection afforded a listed species.
    The RIA concluded that economic costs attributable to the 
designation of critical habitat for the delta smelt would be relatively 
small. In the revised proposed rule, the Service determined that 
economic costs would be attributable to five actions (i.e., sand and 
gravel extraction, diking wetlands, levee maintenance and bank 
protection activities, operation of the Montezuma Slough Control 
Structure, and bridge and marine construction). In the final RIA 
prepared by EPA (EPA 1994), the economic costs attributable to 
designation were from the same five actions.

Economic Impacts Attributable Directly to Critical Habitat Designation

    A synopsis of the economic impacts associated with the five 
activities identified by the Service includes:
    Sand and Gravel Operations--Four aggregate operators in the delta 
may be affected by the designation of critical habitat. Two of the 
aggregate operations in the Delta are located in San Joaquin County, 
which has a total of eleven aggregate sites. The estimated value of 
aggregate production for San Joaquin County in 1986 was $13 million. 
The four aggregate operations in the Delta that could be affected by 
the regulation produced a small percentage of California's aggregate in 
1992, which had a total value of $473 million. The economic impacts on 
the aggregate production industry resulting from the designation of 
critical habitat likely will be minor, given the relatively small 
amount of sand and gravel production occurring in the Delta.
    In many cases, minor changes to the timing of extraction to avoid 
sensitive biological periods will minimize the economic effects on 
mining activities. Mitigation in the form of habitat replacement might 
be required for operations that may result in the destruction or 
adverse modification of critical habitat. Costs to restore 1 acre of 
wetlands range between $10,000 to $50,000. Mitigation costs could be 
reduced if low-cost lands were acquired, and levees were breached to 
flood areas. For some tracts of land, the costs associated with 
restoring wetlands may exceed the value derived from the agricultural 
activity, in which case the cost attributable to critical habitat would 
be the loss in agricultural income.
    Diking and Dredging for Agricultural Operations--Though designation 
of critical habitat for the delta smelt may require implementation of 
best management practices and a 3:1 ratio of permanently destroyed 
habitat in proposed project areas, the economic impacts of restricting 
diking and dredging operations are expected to be minimal. For example, 
the regulatory costs (i.e., with critical habitat designated) 
associated with converting the Little Holland Tract in the Delta to 
agricultural uses with critical habitat designated would be the cost to 
replace 440 acres of habitat at a 3:1 ratio (EPA 1994). The expense of 
replacing habitat would likely exceed the economic returns from 
agricultural production on this tract, which was historically planted 
for corn. Foregone income from future agricultural production on the 
1,300 arable acre tract would amount to $65,000 per year.
    Levee Maintenance--Between 1981-1991, local agencies maintained 
536.6 miles of levee in the Delta, spending an average of $1.24 million 
per mile (EPA 1994). Approximately 41% of the costs were financed 
through State subventions. The costs of levee maintenance are not 
expected to increase significantly due to this critical habitat 
designation because Federal regulatory agencies currently have timing 
and construction restrictions that generally avoid adverse effects to 
the delta smelt.
    Montezuma Slough Control Structure Operations--The economic impacts 
associated with the operation of the Montezuma Slough Control Structure 
could not be estimated by the time this final rule was published. In 
response to a biological opinion issued by the USFWS to DWR and the 
Bureau on the Structure's operation, an investigation of the effects of 
the Structure on delta smelt is being conducted, and will be completed 
in the near future. The Structure's operations may be modified once the 
study is completed. The gates at this structure are currently operated 
from November to March in accordance with current State salinity 
standards to maintain low-salinity water in Suisun Marsh, but remain 
open the remainder of the year.
    Bridge and Marina Construction--The use of best management 
practices, time restrictions, and other construction restrictions 
similar to those for levee maintenance and sand and gravel operations 
should preclude any substantial impact from designation of delta smelt 
critical habitat on bridge and marina construction.

Water Costs Attributed to EPA's Salinity Standards

    EPA's economic analysis evaluated the costs associated with 
implementing its water quality standards for the Bay/Delta. Since the 
Service identifies water quality (salinity) as a primary constituent 
element essential to conserve the delta smelt, an analysis of the water 
costs associated with implementing the salinity standards is included 
in this final rule. Though the water costs associated with the water 
quality standards are attributable to EPA, the Service includes this 
discussion to make clear the approximate cost of implementing the 
salinity standards alone.
    The water costs associated with the salinity standards and fish 
migration standards are reported in EPA's final RIA (EPA 1994). EPA 
reports the water costs as the sum of costs associated with the 
salinity standards and fish migration standards. However, depending on 
hydrologic conditions, approximately 35% to 73% of the water costs in 
the EPA economic analysis can be attributed to the salinity criteria 
alone, apart from the fish migration criteria (EPA 1994).
    The overall estimated water supply impacts of both the salinity and 
fish migration water quality standards (change in total exports) over 
those associated with existing D-1485 State salinity standards and 
water quality requirements for winter-run chinook salmon under a NMFS 
biological opinion are 376 thousand acre-feet (taf) per year on 
average, and 577 taf during critically dry periods. However, the 
State's implementation plan for EPA's water quality standards will 
substantially affect the magnitude and distribution of the costs 
associated with implementing the water quality standards. A more 
detailed discussion of the water costs associated with different 
implementation scenarios appears in the final RIA (EPA 1994).

National Economic Costs

    Actions taken to preserve and recover threatened and endangered 
species may result in the re-allocation of resources within the 
regional and national economy. National economic costs, best described 
as efficiency costs, include changes in the consumer and producer 
surplus, and related employment impacts. These measures capture the net 
social gains and losses resulting from the resource allocation.
    The national economic cost of the five activities evaluated above 
(sand and gravel extraction, diking wetlands, levee maintenance and 
bank protection activities, operation of the Montezuma Slough Control 
Structure, and bridge and marina construction) is minimal since the 
overall economic cost of those activities in the region is minimal.
    EPA's economic analysis used the above described measures to 
estimate the costs and benefits of the water quality standards. 
Therefore, the results of EPA's economic analysis is identical to an 
analysis done for national economic costs.

Benefits of Critical Habitat Designation

    Conservation of the delta smelt with designation of its critical 
habitat will result in a wide range of benefits. Section 2(a)(3) of the 
Act recognizes that fish, wildlife, and plants are of aesthetic, 
ecological, educational, historical, recreational, and scientific value 
to the Nation and its people. EPA (1994) categorizes the benefits of 
promulgating water quality standards and designating critical habitat 
as use, nonuse, and other benefits. A more detailed description of 
these uses are contained in the final RIA (EPA 1994).
    Several use and nonuse benefits can be attributed to designating 
critical habitat for the delta smelt, apart from benefits attributable 
to EPA's water quality standards. Generally, the designation of 
critical habitat will prevent the further decline of estuarine health. 
Benefits include:
    (1) Reduced need in the future to list fish and wildlife species 
currently in decline;
    (2) Increased biological production of commercially important 
species, such as waterfowl and salmon;
    (3) Increased protection to a wide variety of estuarine species, 
several of which are unique to the Estuary (e.g., winter-run chinook 
salmon, Estuary population of longfin smelt, and Sacramento splittail);
    (4) Curtailed establishment of newly introduced exotic species and 
deterred explosion of the current population of already established 
exotic species;
    (5) Increased recreational fishing and hunting opportunities;
    (6) Increased opportunities for wildlife observation resulting from 
restoration of riparian and tidal marsh habitat and ecosystem health; 
and
    (7) Improved commercial fishery harvest as a result of increased 
populations of fish.
    EPA (1994) assigned a monetary value to several of the use 
benefits. The economic benefits of EPA's standards are broader than 
protection of the delta smelt, since EPA's standards are expected to 
positively affect all components of the food web. The total economic 
benefit of EPA's water quality standards and the designation of 
critical habitat for the delta smelt are reported as follows. The 
ecological benefits of improved estuarine conditions are expected to 
generate at least $2.1 million or more in net economic benefits to 
commercial and recreational fisheries (particular salmon fisheries), 
and will have an associated employment gain of approximately 145 full-
time equivalent jobs (EPA 1994). Benefits to the ocean sport fishery 
for salmon is estimated at about $708,000 annually (EPA 1994). This 
increase would result in positive employment effects on sport fishing-
related industry, adding approximately 70 jobs in this area. Annual 
benefits to the striped bass sport fishing industry is estimated to be 
$57,500 annually (EPA 1994).
    An important avoided cost is associated with further declines in 
the recreational and commercial fisheries industry of the Bay/Delta, 
which is valued at $200 million annually (EPA 1994). Other avoided 
costs include government costs associated with crop deficiency 
payments, agricultural drainage costs, and costs associated with the 
potential reduction in property value.

Summary of the Exclusion Process

    In order to determine the specific extent of designation of 
critical habitat pursuant to section 4(b)(2) of the Act, the Service 
must analyze:
    (1) The benefits of excluding an area as critical habitat,
    (2) The benefits of including an area, and
    (3) The effects of exclusions on the probability of species 
extinction.
    This process consists of (1) estimating the benefits of retaining 
or excluding land and water areas contained within Suisun Bay or river 
reaches within the Delta and Montezuma, Goodyear, Suisun, Cutoff, and 
First Mallard (Spring Branch) sloughs; (2) weighing those benefits; and 
(3) determining if exclusion of an area or areas from critical habitat 
will lead to the extinction of the species. If the exclusion of an area 
or areas from critical habitat will result in eventual species 
extinction, then the exclusion would be prohibited under the Act.

Extinction

    Critical habitat consists of areas with habitat characteristics 
that are essential to the conservation of a listed species. However, 
the exclusion process focuses upon a threshold for species extinction. 
Conservation (recovery) and extinction are separate standards. Recovery 
and extinction are at opposite ends of a continuum, with the likelihood 
of a species' continued survival increasing the closer the species is 
to the recovery end of the continuum. It may be more difficult to 
predict the point at which extinction would be inevitable than to 
determine where recovery may occur.
    The analysis to determine whether extinction will occur will be 
different for each species, depending on many variables, including a 
species' geographic range. The exclusion analysis also may be related 
to a number of factors, such as the number of individuals, amount of 
habitat, condition of the habitat, and reproductive success. Extinction 
of an annual species, like the delta smelt, most likely would occur 
when rearing habitat conditions are poor enough for two consecutive 
years that some minimum number of fish fail to survive to reproduce. 
Habitat conditions could become poor enough if pumping at Federal and 
State water project facilities and private diversions significantly 
reduce outflow from the Delta. If a sufficient number of delta smelt 
were entrained in Federal and State water project facilities and 
private diversions so that a minimal number survived to reproduce, the 
population could decline. Extinction could result. The focus of the 
exclusionary analysis was on those factors that pertain to these issues 
and included consideration of habitat condition, functioning of the 
Estuary ecosystem, and proximity of the delta smelt population to the 
Federal and State pumps during various life stages.

Criteria and Decision

    In evaluating the designation of critical habitat to determine 
whether or not to exclude areas because of concerns over economic 
effects, the Service used the following process:
    (1) Based upon the criteria described in this document, the 
geographical area essential to the conservation of the species was 
identified; and
    (2) An economic analysis was conducted to ascertain the anticipated 
economic consequences of designating areas as critical habitat, using 
agricultural and urban sectors as the primary level of economic 
analysis.
    (3) The Service balanced the costs and other impacts of designation 
with the benefits of designation.

Exclusion

    Using the above described process, the Service has determined that 
no exclusions to critical habitat are appropriate. The entire 
geographic area designated as critical habitat is essential to conserve 
the delta smelt. Delta smelt are restricted to a limited geographic 
area, and retaining land and water areas contained within Suisun Bay 
and river reaches within the Delta and Montezuma, Goodyear, Suisun, 
Cutoff, and First Mallard (Spring Branch) sloughs is necessary to 
recover this annual species. These areas provide habitat necessary for 
each life stage of the species.
    The economic consequences of designating the entire area as 
critical habitat are relatively small. Most economic costs can be 
avoided by project proponents by using timing and construction 
restrictions, and by using best management practices. Designation of 
critical habitat will reduce the need in the future to list fish and 
wildlife species currently in decline, and will improve the overall 
health of the Estuary. The benefits of designating the entire area 
outweigh the benefits of excluding any of the area from the 
designation.

Available Conservation Measures

    The purpose of the Act, as stated in section 2(b), is to provide a 
means to conserve the ecosystems upon which endangered and threatened 
species depend and to provide a program for the conservation of listed 
species. Section 2(c)(1) of the Act declares that ''* * * all Federal 
departments and agencies shall seek to conserve endangered and 
threatened species and shall utilize their authorities in furtherance 
of the purposes of this Act.
    The Act mandates the conservation of listed species through 
different mechanisms, such as: Section 7 (requiring Federal agencies to 
further the purposes of the Act by carrying out conservation programs 
and insuring that Federal actions will not likely jeopardize the 
continued existence of the listed species or result in the destruction 
or adverse modification of critical habitat); section 9 (wildlife 
research permits and habitat conservation planning on non-Federal 
lands); section 6 (cooperative State and Federal grants), land 
acquisition, and research. Other Federal laws also require conservation 
of endangered and threatened species, such as the National Forest 
Management Act and the National Environmental Policy Act, and various 
other State and Federal laws and regulations.
    Critical habitat is not intended as a management or conservation 
plan. Critical habitat is primarily intended to identify the habitat 
that meets the criteria for the primary constituent elements. However, 
there are benefits that result from the designation. Designation will 
help retain recovery options and reduce the near-term risk until a 
long-term conservation plan is implemented.
    Designation of critical habitat does not offer specific direction 
for managing delta smelt habitat. That type of direction, as well as 
any change in direction, will come through the administration of other 
facets of the Act (e.g., section 7, section 10 HCP process, and 
recovery planning).

Recovery Planning

    Recovery planning under section 4(f) of the Act is the 
``umbrella''that eventually guides all the Act's activities and 
promotes a species' conservation and eventual delisting. Recovery plans 
provide guidance, which may include population goals and identification 
of areas in need of protection or special management. Recovery plans 
usually include management recommendations for areas proposed or 
designated as critical habitat.
    The delta smelt and six other fish species that depend on the 
Estuary for a significant segment of their life history are included in 
the Sacramento-San Joaquin Delta Native Fishes Recovery Plan. The 
recovery plan is currently in draft form. The recovery plan will 
include recovery criteria based on population abundance and geographic 
distribution. Designation of critical habitat, along with the 
biological opinion evaluating the effects of the Federal and State 
water projects on the delta smelt, is consistent with the plan's 
objective to recover these fish species.

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to destroy 
or adversely modify critical habitat. This Federal responsibility 
accompanies, and is in addition to, the requirement in section 7(a)(2) 
of the Act that Federal agencies ensure that their actions do not 
jeopardize the continued existence of any listed species.
    Jeopardy is defined at 50 CFR 402.02 as any action that would be 
expected to appreciably reduce the likelihood of both the survival and 
recovery of a species. Destruction or adverse modification of critical 
habitat defined at 50 CFR 402.02 as a direct or indirect alteration 
that appreciably diminishes the value of critical habitat for both the 
survival and recovery of a listed species. The regulations also clearly 
state that such alterations include, but are not limited to, 
alterations adversely modifying any of those physical or biological 
features that were the basis for determining the habitat to be 
critical.
    Survival and recovery, mentioned in both the definition of adverse 
modification and jeopardy, are directly related. Survival may be viewed 
as a linear continuum between recovery and extinction of the species. 
The closer one is to recovery, the greater the certainty in the species 
continued survival. The terms ``survival and recovery'' are, thus, 
related by the degree of certainty that the species will persist over a 
given period of time. Survival relates to viability. Factors that 
influence a species' viability include population numbers, distribution 
throughout the range, stochasticity, expected duration, and 
reproductive success. A species may be considered recovered when there 
is a high degree of certainty for the species' continued viability.
    The Act's definition of critical habitat indicates that the purpose 
of critical habitat is to contribute to a species' conservation, which 
by definition equates to recovery. Section 7 prohibitions against the 
destruction or adverse modification of critical habitat apply to 
actions that would impair survival and recovery of a listed species, 
thus providing a regulatory means of ensuring that Federal actions 
within critical habitat are considered in relation to the goals and 
recommendations of a recovery plan. As a result of the link between 
critical habitat and recovery, the prohibition against destruction or 
adverse modification of the critical habitat should provide for the 
protection of the critical habitat's ability to contribute to a 
species' recovery.
    Federal actions that may affect the delta smelt or its critical 
habitat include those authorized, carried out, or funded by the Corps, 
Department of the Navy, the Bureau, NMFS, FERC, the Service, and EPA. 
The Corps funds projects and issues permits for water pumping and 
diversion facilities, levee construction or repair, bank protection 
activities, deep-water navigation channel dredging and dredge spoil 
disposal projects, sand and gravel extraction, marina and bridge 
construction, diking of wetlands for conversion to farmland, and tidal 
gate or barrier installation. The Corps also develops permits pursuant 
to section 404 of the CWA to the Department of the Navy so the Navy may 
dredge deep-water ship channels and dispose of dredge materials in 
Suisun Bay, San Pablo Bay, and San Francisco Bay. The Corps also 
conducts such activities for the Navy.
    The Bureau and DWR construct, operate, and manage water export 
facilities. EPA reviews State water quality standards and promulgates 
replacement standards, pursuant to the CWA, if the State standards are 
found to be inadequate. FERC licenses water storage facilities on 
tributaries to the Sacramento-San Joaquin Delta. In 1991, EPA 
disapproved portions of the State Board's Water Quality Control Plan 
for Salinity for the Estuary. Accordingly, EPA has prepared proposed 
and finalized replacement standards for those portions of the State's 
salinity standards that were disapproved. Measures to protect the 
federally listed winter-run chinook salmon, for which NMFS has 
jurisdiction under the Act, also may affect the delta smelt and may 
require consultation with the Service.
    The Service and the Bureau are jointly responsible for implementing 
the Central Valley Project Improvement Act (CVPIA). Activities under 
the CVPIA include, but are not limited to, management of a portion of 
the CVP water supply dedicated for fish and wildlife protection, 
restoration, and enhancement, acquisition of additional water supplies 
for the same purposes, and screening unscreened diversions in the 
Sacramento-San Joaquin watershed. Both the Bureau and Service 
activities under the CVPIA may affect delta smelt or its critical 
habitat, requiring consultation with the Service.
    Under section 4 of the Act, listing of the delta smelt provided a 
requirement for the development of a recovery plan. The Service 
convened the Delta Native Fishes Recovery Team to prepare a Recovery 
Plan for declining native fishes in the Estuary. The Recovery Plan, 
currently in draft form, will develop a framework for Federal, State, 
and private entities to coordinate activities and cooperate with each 
other in conservation efforts. The plan will set recovery priorities 
and estimate the costs of various tasks necessary to accomplish 
recovery goals. Site-specific management actions necessary to achieve 
survival and recovery of the delta smelt and other fishes native to the 
Estuary ecosystem also will be described in this plan.

Summary of Comments and Recommendations

    Designation of critical habitat for the delta smelt was first 
proposed on October 3, 1991 (56 FR 50075), as part of the proposed rule 
to list the species. During the 4-month comment period following 
publication of the proposal, the Service received 360 written and oral 
comments from 348 individuals. Of the forty-four people who commented 
specifically on critical habitat, thirty-four opposed and ten supported 
the designation.
    On March 16, 1993 (58 FR 14199), the Service published a notice 
that the public comment period on the original proposed critical 
habitat designation for the delta smelt was reopened until April 30, 
1993, to allow the Service to consider any information that previously 
had not been submitted. In response, the Service received seven 
letters--two in support of critical habitat designation as proposed, 
four in opposition, and a letter from EPA requesting that the Service 
consider the biological and hydrological information described in EPA's 
draft proposed rule to promulgate Bay/Delta water quality standards.
    On January 6, 1994 (59 FR 852), the Service revised the 
geographical area and refined the primary constituent elements 
described in the original critical habitat proposal. The public comment 
period for the revised proposed critical habitat designation was open 
from January 6, 1994, to March 7, 1994, and later extended to March 11, 
1994 (59 FR 3829). During the 65-day comment period, the Service 
received written comments from forty-three parties on both the critical 
habitat designation and EPA's proposed water quality standards for the 
Bay/Delta. Thirty-two commenters were opposed to critical habitat 
designation, nine supported the decision, and two expressed no 
preference. Several commenters either referenced or supported the 
comments of the California Urban Water Agencies (CUWA).
    Four joint public hearings were held to solicit comments on the 
revised proposed critical habitat designation, the proposed threatened 
status for the Sacramento splittail, and the proposed water quality 
standards developed by EPA. A total of 125 people presented oral 
testimony and submitted written comments at the hearings, primarily on 
delta smelt critical habitat and Bay/Delta water quality standard 
issues. The Service received comments from elected officials, 
interested persons, municipal and agricultural water districts and 
associations, environmental organizations, business and industry owners 
and managers, fishing enthusiasts, farmers, agricultural commissions 
and dairy interests, biologists, county and municipal officials, power 
agency representatives, hospital and school district representatives, 
and building industry spokespeople.
    At the February 23, 1994, hearing in Fresno, thirty-eight people 
presented oral testimony--thirty-six people opposed and two supported 
critical habitat designation. Nineteen people testified at the February 
24, 1994, Sacramento meeting--fifteen people were opposed to the 
designation, three were in support, and one person was neutral.
    Twelve people testified at the February 25, 1994, hearing in San 
Francisco--nine people supported and three opposed the critical habitat 
designation. At the February 28, 1994, hearing in Irvine, fifty-six 
people presented oral and written comments (fifty-one people testified 
and five submitted only written comments)--fifty of the fifty-six 
commenters opposed critical habitat, five were neutral, and one 
supported the designation.
    Comments addressing the issue of available scientific information 
used to revise the proposed rule were addressed in the revised proposed 
rule of January 6, 1994 (59 FR 852). The Service addressed EPA's 
comments, as well as comments provided by the State. All other comments 
are addressed below in this final rule. Because EPA can better respond 
to comments regarding the economic analysis and the assumptions used to 
develop its Bay/Delta water quality standards, the Service refers to 
EPA's ``Response to Comments'' document for responses to comments 
specific to those issues. However, the Service will respond to any 
comments regarding the relationship between EPA's water quality 
standards and the biological requirements of the delta smelt in this 
section, and to comments regarding the economic analysis as it is 
associated with the critical habitat designation.
    Comments are part of the administrative record and are available 
for public review. Written comments and oral statements presented at 
the public hearings and received during the comment periods are covered 
in the following summary. Comments of a similar nature or point are 
grouped into a number of general issues. These issues, and the 
Service's response to each, are discussed below.

Estuarine Standard Issues

    Comment 1: One commenter thought the Service should not adopt EPA's 
Bay/Delta water quality standards as part of the designation of 
critical habitat for the delta smelt. The commenter asserted that 
because the Service had not described the biological relevance of the 
standards, adopting the standards would be ``throwing water at the 
problem''. Another commenter thought EPA's criteria were developed to 
serve non-habitat purposes, reasoning that their purpose was to remove 
organisms from risk of mortality at the pumps. Another commenter 
thought flow, rather than salinity or the location of the entrapment 
zone, was a more appropriate parameter to protect the western Delta and 
Suisun Marsh. A commenter at the public hearings believed the Service 
should not have selected such a strict standard of salinity (2 ppt) for 
the delta smelt's critical habitat.
    Service Response: The Service does not adopt EPA's water quality 
standards in the designation of critical habitat for the delta smelt. 
The Service identifies water quality (salinity) as a primary 
constituent element to protect and recover the delta smelt. This point 
is described in detail in comment 27, below, and is clarified in the 
section entitled ``Primary Constituent Elements'' in this final rule.
    The Service has considered and discussed the biological relevance 
of EPA's water quality standards. The biological relevance of providing 
ample estuarine habitat for the delta smelt was first discussed in the 
original proposed designation of critical habitat for the delta smelt 
in 1991. The biological significance of salinity in the Estuary was 
again discussed in the sections entitled ``Revisions to the October 3, 
1991, Critical Habitat Proposal'', ``Habitat Requirements'', and 
``Primary Constituent Elements'' in the January 6, 1994, revised 
proposed designation of critical habitat. These sections discuss the 
habitat requirements of the delta smelt, the need for temporal and 
spatial variability of low-salinity waters in the Estuary, and the 
identification of primary constituent elements essential for the 
recovery of the smelt.
    As the above cited discussions illustrate, EPA's water quality 
standards were developed to mimic historical habitat conditions and 
were not developed to simply serve non-habitat purposes. The standards 
may incidentally serve ``non-habitat'' purposes by removing organisms 
from risk of mortality at the pumps. This topic is discussed in this 
final rule in the ``Primary Constituent Element'' section for larval 
and juvenile transport.
    Requiring flows to maintain salinity at critical locations in the 
Delta will not be ``throwing water at the problem.'' The Service has 
used the best scientific data available to prescribe conditions that 
will facilitate the recovery of the delta smelt, relying on scientific 
evidence and testimony presented during the State Board's 1992 hearing 
process, as well as information from the Service and the panel of 
scientists who participated in the San Francisco Estuary Project 
(SFEP).
    In accordance with the Act and its regulations, the Service may 
refer to either flow or salinity as water quality criteria when 
critical habitat is designated for the delta smelt. Because the Act is 
flexible, the Service may accomplish recovery in a variety of ways, so 
long as listed species are recovered. With critical habitat defined, 
the Service must identify the physical and biological features 
essential to the conservation of the species, and which may require 
special management considerations or protection. A primary constituent 
element may include either water quality or water quantity. Special 
management considerations include ``any methods or procedures useful in 
protecting physical and biological features of the environment for the 
conservation of a listed species.'' (50 CFR 424.12(b); 424.02(j)).
    Based on the best available information, the Service concludes that 
the criteria are necessary to protect and recover the delta smelt. 
Delta smelt are associated with the freshwater edge of the mixing zone, 
where the salinity is approximately 2 ppt (Ganssle 1966, Moyle et al. 
1992, Sweetnam and Stevens 1993). In most years, the majority of the 
delta smelt population lives at salinities of less than 2 ppt for most 
of the year (Moyle 1976, Ganssle 1966).
    Comment 2: Although several water purveyors agreed with EPA that 
there is a relationship between the average position of the 2 ppt 
isohaline and the health of the Estuary, they believed that the Roe 
Island criterion was too protective and should be abolished. However, 
another commenter thought the water quality standards as proposed by 
EPA were not protective enough of the delta smelt (addressed in comment 
7). Several commenters thought that requiring compliance at Roe Island 
may (1) reduce the within-year variability in hydrology in Suisun Bay, 
thus having an adverse impact on the biology of the Estuary; (2) place 
the entrapment zone too far downstream of Suisun Bay, thereby pushing 
phytoplankton and delta smelt out past Carquinez Strait into San Pablo 
Bay; and (3) either greatly benefit or adversely affect native and 
introduced estuarine species by enhancing or adversely affecting 
habitat quantity and quality.
    Service Response: To the extent feasible, maintenance of near-
historical water quality conditions at Roe Island is essential to 
recovery of the delta smelt. Not only is it important to maintain low-
salinity conditions at critical locations in the Estuary depending on 
the life-stage of the delta smelt, but also to simulate year-to-year 
natural spring storm cycles so that natural processes and historical 
conditions can be mimicked in the Estuary. The water quality standards 
developed by EPA, including criteria at Roe Island, Chipps Island, and 
the Sacramento-San Joaquin River confluence, were developed to provide 
both within-year and between-year variability in salinity levels, 
characteristic of the Estuary in the late 1960's and early 1970's. This 
variability does not currently occur frequently enough in the Estuary 
to maintain estuarine processes, because the construction of water 
conveyance facilities in the Central Valley and Delta, as well as the 
operation of diversions and upstream dams, have reduced and dampened 
annual fluctuations in Delta outflow.
    A low-salinity reference point at Roe Island will provide within-
year and year-to-year variability essential to maintenance of a healthy 
Estuary. Requiring salinity be maintained intermittently at Roe Island 
also will provide flows to carry juvenile fish from the Delta 
downstream to Suisun Bay, and will maximize nutrient inputs from Suisun 
Marsh and the shallows of Suisun Bay into the mixing zone. Providing 
periodic low-salinity water at Roe Island will significantly increase 
the total area of medium to low-salinity nursery habitat available for 
delta smelt. Spring storm events are also beneficial to aquatic 
resources of the Estuary, providing areas of flooded vegetation for the 
spawning of some estuarine species.
    Moreover, the 2 ppt isohaline is needed sporadically at Roe Island 
to mimic seasonal variability of Delta flow to deter the invasion of 
introduced species. The lack of seasonal and yearly variability of 
Delta outflows has contributed to the invasions of introduced species. 
Because variable salinity is one of the dominant features of an 
estuary, ensuring natural variability in the Estuary can only benefit 
native estuarine species.
    Providing low-salinity water at the Roe Island historical reference 
point will not put the mixing zone too far downstream into the 
Carquinez Strait. Conversely, completely abolishing the Roe Island 
reference point and relying exclusively on the Chipps Island and 
Sacramento-San Joaquin River confluence locations may leave an 
important area in the western-most portion of Suisun Bay (which is 
included in critical habitat) outside the mixing zone (CCCWA/EDF 1987). 
The western portion of Suisun Bay is important habitat for the delta 
smelt. Delta smelt were most abundant at the Western Suisun Bay and 
Carquinez Strait sampling sites in the San Francisco Bay-Outflow Study 
in the years 1980-1988 (Stevens et al. 1990). Apart from the ship 
channel, the southwestern portion of Suisun Bay contains expansive 
shoal areas that are less than 2 meters deep (Mortensen 1987). The best 
survival and growth of delta smelt larvae occur when optimum conditions 
in the mixing zone occupy a large area that includes extensive shoal 
regions containing suitable rearing substrates within the euphotic zone 
(depths less than 4 meters).
    Moreover, because the Roe Island historic reference point was 
developed to mimic historical conditions in the Estuary, requiring 
periodic low-saline waters at that location will not be an abnormal 
occurrence. Historically, delta smelt have been flushed out into the 
Carquinez Strait and into Suisun Bay in high flow years, similar to 
what occurred in 1983 and 1993. The delta smelt is adapted to living in 
the Estuary, where salinity varies spatially and temporally according 
to tidal cycles and the amount of freshwater inflow. Nonetheless, the 
historical Estuary probably offered relatively constant suitable 
habitat conditions to delta smelt, which could move upstream or 
downstream with the entrapment zone (Peter Moyle, University of 
California, pers. comm., 1993).
    The Service does not believe EPA's Roe Island salinity criteria 
would be detrimental to native estuarine species. A qualitative and 
graphic analysis of habitat preferences for Estuary species (including 
eggs and larvae, juveniles, adults and spawning adults life stages) 
presented by a commenter which predicted that EPA's salinity criteria 
at Roe Island would put some species at risk or greatly benefit others 
was overly broad and too simplistic. The commenter included introduced 
species (e.g., inland silverside Menidia beryllina, threadfin shad 
Dorosoma petenese) and marine species (e.g., several surfperches, 
English sole Parophrys vetulis) in the analysis. Its analysis did not 
give any preference to species having protected status, or to species 
that rely solely on estuarine habitat. Freshwater, marine and 
estuarine-dependent species were treated equally. The analysis 
described habitat in terms of salinity alone, when other measures of 
habitat, such as temperature, turbidity, and depth, are important for 
some estuarine-dependent species. Since the quantity of habitat 
available for a species was described only by river kilometer, complex 
bathymetry was ignored in the investigation. The Service does not 
intend to benefit or recover species outside the Estuary, nor does it 
intend to protect introduced estuarine species. To comply with the Act, 
the Service must promote the recovery of the delta smelt. Impeding the 
establishment and success of introduced species, and providing suitable 
habitat for delta smelt, are significant and complementary components 
to recovering the species. The Service does not foresee a significant 
decline in other native estuarine species due to critical habitat 
designation for the delta smelt. The Service expects the opposite to 
occur and has evaluated the impacts of EPA's water quality standards 
through section 7 consultations.
    Comment 3: One commenter thought the Roe Island criteria would not 
benefit the delta smelt because the relationship between the 2 ppt 
isohaline location and the abundance indices of delta smelt become 
uncertain as the entrapment zone moves downstream from Chipps Island.
    Service Response: The Service need not show statistical 
significance between the location of the mixing zone and fishery 
abundance to include variable, low-salinity habitat as a primary 
constituent element. Under the Act, the Service must base a critical 
habitat designation on the best scientific information available. A 
statistical correlation between a primary constituent element and its 
effect on species recovery is not required. The complexity of the Delta 
ecosystem and the numerous factors contributing in time and space to 
the species' decline make it highly unlikely that any one factor would 
show a direct correlation with its potential recovery.
    Comment 4: One commenter thought the Roe Island salinity criteria 
would have significant impacts on carryover storage in the Sacramento 
River Basin since meeting those criteria would account for a large 
portion of carryover storage, and consequently, affect winter-run 
salmon temperature requirements.
    Service Response: The Service is addressing, in recovery planning 
efforts and in section 7 consultations, the concern that compliance 
with Roe Island criteria will cause reductions in carryover storage in 
upstream reservoirs. Recovery planning recommendations for winter-run 
chinook salmon will be included in the delta smelt recovery plan 
process through coordination of the respective recovery teams for these 
species. Section 7 consultations will address any competing needs for 
winter-run storage in Shasta Reservoir.
    Comment 5: One commenter thought that the State Water Project and 
the Central Valley Project reservoirs located upstream of the Delta 
lacked the capacity to release enough controlled outflow to regulate 
salinity at Roe Island on a continuous basis, when recreational safety, 
flooding, travel time and upstream riparian right constraints are taken 
into account.
    Service Response: The Service notes the isohaline need not be 
located at Roe Island on a continuous basis, since EPA's Roe Island 
standard is triggered only when uncontrolled runoff has placed the 2 
ppt isohaline seaward of Roe Island. The SWP and CVP reservoirs have 
the capacity to release outflow to meet the Roe Island criteria once 
the criteria are triggered.
    Comment 6: One commenter believed sampling biases and temporal and 
spatial variability in the data can be factors that distort or confound 
the abundance indices used to support the EPA's water quality 
standards.
    Service Response: The Service addressed the concerns regarding data 
bias in the final rule to list the delta smelt as a threatened species 
(58 FR 12856), noting that the Service is obliged under the Act to use 
the best available scientific and commercial information in making a 
listing determination. The Service also must use the best available 
information in designating critical habitat, and must take into 
consideration the economic impact, and any other relevant impact, of 
specifying any particular area as critical habitat (section 4(b)(2)).
    Comment 7: One commenter thought the salinity standards as proposed 
by the EPA were not protective enough of the delta smelt, and 
recommended that--(1) additional days be added to the Roe Island 
standard in below normal to critically dry years to buffer against 
years when storm flows or reservoir releases place the 2 ppt isohaline 
at Roe Island for the first time late in the year, (2) a stipulation be 
added for an eleventh-hour invocation'' of the 2 ppt standard if it 
appears that the 2 ppt requirement will fail to be invoked at all, and 
(3) the Service include a Middle Ground standard in addition to the Roe 
Island standard, having the Middle Ground standard implemented 
independently of any type of trigger or stipulation. The commenter 
thought water quality criteria at Middle Ground were necessary not only 
to provide rearing habitat immediately west of Chipps Island (since 
habitat in that area is positively correlated with delta smelt 
abundance), but also would allow delta smelt to access the expansive 
shoals of Grizzly Bay through Honker Bay. Another commenter worried 
that simply reproducing historic habitat conditions would not be 
sufficient to recover the delta smelt.
    Service Response: The Service believes that EPA's water quality 
standards, as proposed, will afford protection and promote recovery of 
the delta smelt. Adding additional independent (i.e., no trigger) 
criteria at Middle Ground location (between Roe Island and Chipps 
Island) would defeat the purpose of the Roe Island standard by 
dampening any variability in the yearly pattern of outflow as discussed 
in the preceding response.
    Use of the term ``conservation'' in the definition of critical 
habitat indicates that its designation should identify areas that may 
be needed for a species' recovery and delisting. However, when critical 
habitat is designated at the time a species is listed, the Service 
frequently does not know exactly what may be needed for recovery. In 
this regard, critical habitat serves to preserve options for a species' 
eventual recovery. The Service will address the cause(s) and remedies 
for delta smelt decline in the recovery planning process and in future 
section 7 consultations as new information develops.
    Comment 8: One commenter suggested a mechanism for phased 
compliance be developed for EPA's water quality standards. Another 
commenter suggested that the standards be set aside in critically dry 
years until their exact utility in recovering the delta smelt and the 
estuary is quantified.
    Service Response: One of the purposes of designating critical 
habitat is to identify areas that may be needed for a species' recovery 
and delisting so that options can be retained for the realization of 
this goal. The Service recognizes that the degradation of delta smelt 
critical habitat has occurred over more than a century and that, as a 
result, it is unreasonable to expect that recovery will be achieved in 
a relatively short timeframe. Please refer to ``The Effects of Critical 
Habitat'' section above for a detailed discussion on how the Framework 
Agreement (1994), the section 7(a)(1) mandate, and CVP water contract 
renewals will, in essence, allow compliance with EPA's water quality 
standards to be phased in.
    However, the Act does not permit the protections provided by 
critical habitat to be delayed in ways that may result in the 
destruction or adverse modification of critical habitat, such as what 
may occur in drier water years. Having threatened status under the Act 
means that the delta smelt is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range. Designating critical habitat will facilitate the recovery (i.e., 
delisting) of the delta smelt, rather than allowing the species to 
continue declining into endangered status.
    Water quality (salinity) in the Estuary has been identified by the 
Service as a primary constituent element essential to the conservation 
of the delta smelt. A significant modification to EPA's water quality 
standards, or a substantial delay or break in designating critical 
habitat for the delta smelt, would not only postpone recovery of the 
species but could adversely impact the species. The delta smelt's 
pelagic life history, dependence on pelagic microzooplankton, 1-year 
life span, limited geographic range, and low fecundity make it 
susceptible to decimation if its reproductive or larval nursery areas 
are disturbed for more than two years.
    In formulating the basis for the economic impact analysis, the 
Service assumed that destruction or adverse modification of critical 
habitat would not occur in any given water year, provided that Federal 
and State agencies and other parties comply with flows required in 
biological opinions interim to the State Board's implementation of 
water quality standards, and that Federal and State agencies are making 
satisfactory progress towards implementing recovery plan objectives.
    Comment 9: Agricultural interests and municipal representatives 
making comments in the public hearings felt the designation of critical 
habitat for the delta smelt and EPA's estuarine standards would cause 
water allocation in California to be inflexible, especially in light of 
expanding municipal water needs for population growth, natural 
disasters (e.g., earthquakes and fires) and expanding industry. One 
commenter was concerned that by designating critical habitat for the 
delta smelt, construction of new Delta water conveyance facilities 
would be prevented.
    Service Response: Designating critical habitat for the delta smelt 
will not cause water allocation in California to be inflexible. Section 
7 of the Act requires Federal agencies to consult on actions that may 
affect delta smelt to ensure that their actions are not likely to 
destroy or adversely modify critical habitat. The Service provides 
advisory recommendations under section 7 by consulting with other 
Federal agencies to identify and help resolve conflicts between listed 
species, their critical habitat, and proposed actions. Management 
actions designed to provide protection for delta smelt through formal 
consultation or the section 10 incidental take permit process can be 
achieved in a variety of ways by considering a range of project 
alternatives or measures. The consultation and permitting processes are 
flexible, designed to identify solutions on either a project-by-project 
or regional basis.
    A critical habitat designation will not necessarily preclude the 
construction of new Delta water conveyance facilities. The Service's 
economic analysis for designating critical habitat assumed that 
construction of water facilities for future economic growth is more 
affected by application of the jeopardy standard, rather than critical 
habitat designation. Nonetheless, these economic assumptions do not 
constrain the Service's review of future water project proposals. The 
construction of a new Delta water conveyance facility may or may not 
jeopardize the continued existence of the delta smelt, and may or may 
not result in the destruction or adverse modification of its critical 
habitat, depending on numerous elements, including the facilities' 
design, location and operations criteria.
    Comment 10: Several commenters believed that implementation of 
EPA's water quality standards will only remedy one factor contributing 
to the delta smelt's decline. Commenters suggested that over-fishing, 
habitat modification, and the introduction of toxics and heavy metals 
to the Estuary have contributed to the decline of the delta smelt. 
Numerous respondents stated that introduced species in the Delta, such 
as the yellowfin goby (Acanthogobius flavimanus), striped bass and 
inland silversides are the real cause of the delta smelt's decline. 
Special concern was expressed over the effects that two species of 
exotic zooplankton and a species of the exotic Asian clam, 
(Potamocorbula amurensis) had on the Estuary ecosystem.
    Service Response: Regardless of other related effects, the best 
available information indicates that diminished water quality and 
quantity are major factors contributing to the decline of the delta 
smelt. EPA's water quality (salinity) standards will contribute to the 
recovery of the delta smelt.
    Under the Act, the Service may list species and designate critical 
habitat even though the interaction of many causes of the species' 
decline masks the relative contribution of any single factor. Critical 
habitat preserves options for a species' recovery. As such, designation 
of critical habitat preserves habitat conditions within which 
implementation of recovery actions can occur. As stated in the final 
rule to list the delta smelt, continuing studies may shed light on the 
causes of decline, and lead to recovery or management actions that may 
be of benefit to the species.
    Comment 11: One commenter was concerned that water users could 
comply with EPA's water quality standards early in the February-June 
compliance period, hence adequate salinity would not be provided in 
later months if the delta smelt were to spawn late in June or early 
July. The same commenter suggested that a year-round standard might be 
a better and more reasonable approach.
    Service Response: The Service generally agrees with this comment 
and recognized in the revised proposed rule that delta smelt may spawn 
as late as July. Providing water quality (salinity) to conserve the 
delta smelt and its critical habitat is not limited to a defined time 
period as EPA's standards are to the February through June period. As 
the ``Primary Constituent Elements'' section outlines, critical habitat 
for the delta smelt will be focused on the habitat needs of a 
particular life stage that may be affected by a project. Additional 
flows may be required after the February through June period to protect 
delta smelt present in the south and central Delta from being entrained 
in the State and Federal projects, and to avoid jeopardy to the 
species.

Biological Issues

    Comment 12: One commenter suggested that the importance of habitat 
in Grizzly Bay and lower Suisun Bay should be weighted since the bays 
are a relatively large area of high quality habitat upon which some 
species rely heavily.
    Service Response: Though Grizzly Bay and lower Suisun Bay are 
important areas of delta smelt habitat, habitat conditions elsewhere in 
Suisun Bay and upstream in the Estuary are just as important for 
spawning, larval and juvenile transport, rearing and adult migration. 
Habitat for each life stage is essential for the recovery of the 
species and is contained in this designation.
    Comment 13: One commenter thought additional flow requirements 
would not be needed in July or August to protect larval and juvenile 
delta smelt from being entrained in the State and Federal water 
projects since delta smelt remain in particular locations despite flow 
conditions.
    Service Response: The Service recognizes that juvenile and adult 
delta smelt, when given the opportunity, may remain in especially 
productive areas such as Suisun Bay, after the mixing zone has moved 
upstream. However, flows may be required in the July-August period to 
protect delta smelt present in the south and central Delta from being 
entrained in the State and Federal projects, and to avoid jeopardy to 
the species.
    Comment 14: One respondent noted that the distribution of delta 
smelt is not determined by flow alone. The commenter cited 1993 tow-net 
and fall midwater trawl collections that found delta smelt upstream of 
the mixing zone near Decker Island, and found delta smelt considerably 
downstream of the mixing zone in Suisun Bay.
    Service Response: The Service agrees that the distribution of delta 
smelt is not based exclusively on flow. When delta smelt are located in 
suitable, productive habitat, they may not travel with the mixing zone 
as it moves upstream, or downstream. After being transported to 
productive rearing habitat, delta smelt may remain and take advantage 
of safe and productive nursery areas.
    Delta smelt do not become ``trapped'' in the mixing zone, but may 
remain in particular areas. In the text of the final rule, the Service 
clarifies this point by referring to the salt and freshwater mixing 
area as the ``mixing zone,'' rather than the ``entrapment zone,'' to 
clear any misconception that delta smelt and other estuarine species 
are associated exclusively or somehow become trapped within the 
vertical circulation currents created by the saltwater-freshwater 
interface. This type of circulation pattern is important because it 
mixes nutrients from the ocean and inland areas, resulting in a 
productive estuarine ecosystem.
    The pattern of delta smelt distribution described by the commenter 
is consistent with distribution patterns in earlier years when 
dispersal of delta smelt was greater following wetter springs (Sweetnam 
and Stevens 1993). In 1993, about half the delta smelt population 
remained in Suisun Bay throughout the summer, even though the 2 ppt 
isohaline retreated upstream (Herbold 1994).
    Comment 15: One commenter objected to the Service's use of EPA's 
proposed water quality standards as the factual and scientific basis 
for the delta smelt's critical habitat.
    Service Response: The Service has not based critical habitat for 
the delta smelt on EPA's water quality standards. Space requirements 
for delta smelt population growth, cover, and shelter, as well as 
salinity, were described in detail and were included as primary 
constituent elements in the proposed rule to designate critical habitat 
for the delta smelt in 1991, well before EPA promulgated its proposed 
standards. Since 1991, the EPA and the Service have been working 
together to coordinate each agencies' actions.
    Comment 16: Another commenter thought the Service simply identified 
the delta smelt's entire geographic range as critical habitat without 
considering whether the designation was essential to the conservation 
of the species. Other respondents believed the Service did not 
distinguish between areas of critical habitat that are essential and 
nonessential for the conservation of the delta smelt, thereby including 
marginal areas not necessary for delta smelt recovery.
    Service Response: The Service agrees that critical habitat is 
limited to the specific areas within the geographic area that contain 
the physical and biological features needed by the species. As 
discussed in more detail at comment 37, below, the Service has 
described river, channel, slough and bay water habitats essential for 
the recovery of the smelt. Without these areas of habitat, the delta 
smelt cannot survive or reproduce, rear, or be transported between 
other suitable habitat areas.
    Neither the Act or its regulations requires the Service to rank or 
identify areas of habitat that are more ``essential'' than others when 
critical habitat is designated. In the ``Primary Constituent 
Elements''section of this rule, the Service has specifically described 
the importance of habitat for each life stage of this annual species. 
Without adequate habitat for each of these life stages, the delta smelt 
would not survive or recover. The Service may highlight and propose 
specific management actions to protect and rehabilitate certain areas 
in the recovery planning process, such as areas in Cache Slough and the 
lower Sacramento River complex identified by one commenter.
    Finally, the Service did not simply designate critical habitat 
based on the entire geographic range of the delta smelt. At the time 
the Service expanded the critical habitat boundary in 1994, larval 
delta smelt had been located as far north as the confluence of the 
Sacramento River with the Feather River. This area was not included in 
the revised proposed critical habitat boundary. Based on recent 
unpublished data (and brought to our attention in a comment), delta 
smelt in these most upstream observations may have been misidentified 
as pond smelt (Hypomesus nipponensis, or wakasagi). Portions of San 
Pablo Bay, the Napa River, and western Suisun Marsh known to support 
the species are not included in the critical habitat designation.
    In addition, California Department of Fish and Game biologists 
contacted the Service with new information that in 1993, delta smelt 
were found spawning as far upstream as Sacramento. Based on this new 
information and the importance of this spawning habitat in some years, 
the Service expanded critical habitat in the 1994 proposal to extend to 
these important areas.
    Comment 17: One commenter thought the Service did not identify 
areas currently occupied by the smelt.
    Service Response: Delta smelt presently occur throughout the range 
designated as critical habitat. Delta smelt also occur outside the 
legal boundary of the Delta, in the Sacramento, San Joaquin, and 
Mokelumne rivers.
    Comment 18: One respondent questioned the need for critical 
habitat, since delta smelt populations had increased seven-fold in 
1993.
    Service Response: Designation of critical habitat for the delta 
smelt is justified even though the 1992 and 1993 summer tow-net and 
fall midwater trawl abundance indices show increased abundance levels. 
Based on the best available information, the delta smelt has not 
recovered, and remains vulnerable to a variety of threats. Delta smelt 
were listed as threatened because the species was likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. A species has recovered if the status 
of the species, based on the best scientific and commercial data 
available, indicates listing is no longer appropriate under the 
criteria of the Act (50 CFR 402.02, 424.11(d)(2)). Listing remains 
appropriate under the Act until long-term population abundance indices 
remain at high levels and the population is widespread throughout the 
Estuary for a number of years. One or two years of high abundance 
levels is not sufficient to ensure recovery of an annual species such 
as the delta smelt. Specific recovery criteria are being developed in 
the recovery planning process.
    Comment 19: Several commenters were concerned with the Service's 
``single species approach'', whereas other individuals were worried 
that EPA's water quality standards, having been based on eight 
estuarine indicator species, were too broad because species other than 
the delta smelt would benefit from the standards. There was concern how 
delta smelt recovery would be coordinated with the recovery of other 
threatened and endangered estuarine fish species (e.g., winter-run 
chinook and Sacramento splittail), the salt marsh harvest mouse 
(Reithrodontomys raviventris), California clapper rail (Rallus 
longirostris obsoletus), Suisun Marsh management in general, and with 
other species outside the Estuary area.
    Service Response: Designation of critical habitat and identifying 
water quality (salinity) as a primary constituent element for 
protection of the delta smelt may incidentally benefit other native 
estuarine species. Providing variable salinity regimes will facilitate 
the recovery of the Estuary to its natural state. The Service does not 
foresee a significant decline in other native estuarine species due to 
this critical habitat designation, or due to the implementation of 
EPA's water quality standards.
    Delta smelt recovery will be coordinated with the habitat and water 
quality needs of other fish and other marsh and wetland species in the 
Estuary. The Delta Native Fishes Recovery Team was formed in 1993 to 
address the Estuary native fishes in general. The recovery team will 
consider the population decline of delta smelt and other native Estuary 
fishes that ultimately may require active management to restore 
sustainable populations. The recovery team has developed a draft 
Recovery Plan that has analyzed the needs and recommended management 
actions for the delta smelt, longfin smelt, Sacramento splittail, green 
sturgeon, spring-run chinook salmon, late fall-run chinook salmon and 
San Joaquin fall-run chinook salmon. Winter-run chinook salmon also was 
included in recovery planning for the delta smelt, using 
recommendations developed by the Winter-run Recovery Team.
    Federal agencies that propose projects that may affect the salt 
marsh harvest mouse and the California clapper rail, both listed as 
endangered under the State and Federal Endangered Species Acts, must 
consult with the Service under section 7 of the Federal Act. All listed 
species have equal protection under the State and Federal Acts and the 
Service cannot develop solutions for one species that may jeopardize 
other listed species.
    Comment 20: One commenter claimed that the Service misrepresented 
Moyle et al. (1992) by stating that delta smelt grow faster in the 
mixing zone.
    Service Response: The Service is puzzled by the assertion that 
Moyle et al. (1992) was misrepresented in the revised proposed rule for 
delta smelt critical habitat. The Service stated: ``[w]hen the 
entrapment zone is located in a broad geographic area with extensive 
shallow-water habitat within the euphotic zone (depths less than 4 
meters), high densities of phytoplankton and zooplankton are produced 
(Arthur and Ball 1978, 1979, 1980), and larval and juvenile fish, 
including delta smelt, grow rapidly.'' (Moyle et al. 1992, Sweetnam and 
Stevens 1993).
    Moyle et al. (1992) stated ``[T]he mixing currents keep the larvae 
circulating with the abundant zooplankton also found here [in the 
mixing zone] (Orsi and Knutson 1979; Siegfried et al. 1979; Stevens et 
al. 1985). Growth is rapid, and the juvenile fish are 40-50 mm fork 
length (FL) by early August [citations omitted].''
    Sweetnam and Stevens (1993) stated ``[D]elta smelt are fast growing 
and short lived (Moyle 1976) * * * The majority of growth is within the 
first 7 to 9 months of life * * *.''
    The purpose of the paragraph written by the Service and pointed out 
by the commenter was to illustrate estuarine productivity, while 
explaining the dynamics of the Estuary's mixing zone and the delta 
smelt's association with the mixing zone. The Service has not knowingly 
misrepresented information, and does not believe any misrepresentation 
occurred in this instance.
    Comment 21: One respondent commented that delta smelt spawn north 
of Suisun Bay in Montezuma Slough, Suisun Slough and their tributaries, 
and believed this fact contradicted the Service's assertion that delta 
smelt spawn upstream of the mixing zone.
    Service Response: Montezuma Slough, Suisun Slough, and their 
tributaries are upstream of the area where mixing between freshwater 
and salt water occurs in wetter water years. In dryer water years, the 
entrapment zone may move upstream as far upstream as the City of 
Sacramento in late summer, and these sloughs may become saline. If 
delta smelt were to spawn late (i.e., July or August), they would 
probably seek areas other than the sloughs to spawn in freshwater.
    Comment 22: Several commenters at the public hearings suggested 
that the Service use hatcheries to produce enough delta smelt to make 
the population stable.
    Service Response: The Service believes using hatcheries to 
propagate fish, including delta smelt, should not be a substitute for 
habitat protection and restoration. Dr. Moyle presented testimony in 
1992 (Natural Heritage Institute 1992) summarizing the work of Hilborn 
(1992), which explained several reasons why hatcheries are not 
beneficial to the long-term maintenance of fisheries. His points 
included (1) though initially successful, hatchery effectiveness 
decreases after a few years; (2) hatchery fish often do poorly in the 
wild; (3) artificial production poses a threat to the maintenance of 
wild fish; (4) hatchery fish dilute the naturally adapted genes of wild 
fish; and (5) hatcheries provide an excuse for habitat loss. Assuming 
hatcheries could be used to stabilize delta smelt populations, 
propagated fish would require an environment that provides ample food, 
low levels of toxic compounds, and low entrainment losses (Moyle and 
Herbold 1989). Reliance on hatcheries would not adhere to one of the 
primary purposes of the Act, which is to conserve the ecosystem(s) upon 
which listed species depend (16 USC 1531(b)).
    Comment 23: One commenter asked why the Service stated that delta 
smelt are more likely to be entrained in river channels than when 
downstream of the Sacramento-San Joaquin River confluence, when there 
is no relationship between salvage and subsequent delta smelt 
abundance. The commenter noted that entrainment also occurs in Pacific 
Gas and Electric (PG & E) cooling water diversions downstream from the 
confluence of the two rivers.
    Service Response: DWR (1994) states that Federal and State pumps 
entrain delta smelt. A relationship has been found between the number 
of juvenile delta smelt salvaged at the State and Federal pumps and 
both the percent of inflow diverted and total Delta outflow (DWR 1994). 
Whether or not there is a statistical relationship between the number 
of delta smelt entrained at the State and Federal water project pumps 
and subsequent delta smelt abundance, water quality (salinity) is 
essential to the conservation of the delta smelt. Adequate salinity and 
flow provide the delta smelt with suitable habitat for all life stages, 
and will transport delta smelt away from major points of entrainment. 
The Service recognizes and has stated in previous rules that delta 
smelt are taken downstream of the Sacramento-San Joaquin River 
confluence in numerous agricultural, municipal and industrial 
diversions. Delta smelt are also taken upstream from the confluence in 
numerous (over one-thousand) agricultural diversions.
    Comment 24: One commenter thought the Montezuma Slough Control 
Structure might aid, rather than interfere, with the distribution of 
delta smelt within Suisun Marsh.
    Service Response: Based on the best available evidence, the Service 
maintains that operation of the Montezuma Slough Control Structure may 
result in the destruction or adverse modification of critical habitat. 
The Service is required by section 4(b)(8) of the Act to identify 
public or private activities that may result in destruction or adverse 
modification of critical habitat, and does so in the context of this 
rulemaking. Even though optimal operation of the Montezuma Slough 
Control Structure may provide valuable habitat to delta smelt, its 
operation for other purposes may interfere with the distribution of 
delta smelt to spawning and rearing habitat within Suisun Marsh. The 
effects of the salinity control structure on delta smelt are currently 
being investigated by the DWR, in coordination with the Bureau.

Social Issues

    Comment 25: Some respondents believe humans are the real endangered 
species, and that neither delta smelt nor any other animal species 
should be considered more important than humans. Similarly, one 
commenter thought humans could survive just fine without delta smelt, 
but could not survive without farmers.
    Service Response: The Act recognizes that species of fish, 
wildlife, and plants are of aesthetic, ecological, educational, 
historical, recreational, and scientific value to the Nation and its 
people (section 2(a)(3)). Delta smelt possess these attributes. The 
delta smelt is the only smelt endemic to California and one of only two 
native estuarine smelt species (the other being longfin smelt) found in 
the Estuary.
    The purpose of the Act is to protect species in danger of becoming 
extinct in the immediate or foreseeable future. Humans are not in such 
danger. The number of humans has increased in the last century at a 
rapid rate. As pointed out in a report submitted by one commenter, 
total farm-related employment (agricultural services, food 
manufacturers, and agricultural chemicals) increased between 1977 and 
1989 (Carter and Goldman 1992). Agricultural services provided 89,908 
jobs in California in 1989, adding some 45,000 jobs and more than 4,000 
agricultural firms in 12 years.
    Comment 26: Congressman Gary Condit and several other commenters 
thought the critical habitat proposal failed to account for the human 
element involved, especially the ``[E]ffect and toil of thousands of 
human hands and hearts to provide healthy and wholesome food for the 
United States and throughout the world''.
    Service Response: As required by the Act, the Service has 
adequately accounted for the ``human element'' by analyzing the 
economic impacts of designating critical habitat for the delta smelt. 
The draft economic analysis has been revised in response to public 
comments, in response to discussions held at five workshops sponsored 
by the EPA, and in light of additional research to better portray the 
economic reality of the critical habitat designation.

Procedural and Legal Issues

    Comment 27: One commenter was concerned that efforts by the Federal 
agencies to manage the Bay/Delta were uncoordinated. On the other hand, 
one commenter presumed that the Service adopted EPA's water quality 
standards wholesale, and thought the Service had no authority to do so 
because the Service designates critical habitat under the narrow 
purposes of the Act, while the EPA promulgates water quality standards 
under the framework of the Clean Water Act. Similarly, another 
commenter thought the Service would, in effect, be interposing or 
substituting EPA's regulatory judgment for its own if the Service 
incorporated EPA's water quality standards in its designation of 
critical habitat.
    Service Response: This final rule does not incorporate EPA's water 
quality standards per se, although implementation of these standards 
may be a means to promote recovery of the delta smelt. The January 6, 
1994, revised critical habitat proposal for the delta smelt included a 
list of habitat conditions and a description of water quality primary 
constituent elements. These elements were developed in accordance with 
the requirements of the Act and its regulations. The Service's proposal 
also reflects the coordinated approach provided by the Club Fed 
process. The Service participated with the Bureau, NMFS, and EPA in 
guaranteeing that the January 6, 1994, critical habitat and water 
quality proposals were based on the best available scientific and 
technical information. Another priority was for the proposals to take 
into account the goals and concerns of the agencies and public and 
private interests affected by the agencies' programs and activities.
    The preservation of rare and endangered species is a substantive 
link between the proposals of the Service and the EPA. The EPA 
promulgated the Bay/Delta standards because they disapproved provisions 
of the 1991 Bay/Delta plan developed by the State Board. The EPA 
determined that the State had not adopted criteria sufficient to 
protect designated uses of the Estuary, including the ``Preserv[ing] 
Rare and Endangered Species'' designated use. Similarly, in discussing 
the ``Relationship Between Fish and Wildlife Service and EPA Actions,'' 
the Service wrote--``* * * [T]he Clean Water Act requires protection of 
the most sensitive use within each category of designated uses. 
`Protection of Endangered and Threatened Species' is considered a 
designated use within the meaning of the Clean Water Act; therefore, a 
species listing under the Endangered Species Act provides one method to 
identify the most sensitive use within the designated uses of a water 
body.'' (59 FR 854).
    Biologically, the proposed critical habitat for the delta smelt and 
the salinity criteria that constituted EPA's proposed water quality 
standards are directly related. ``* * * EPA's proposed water quality 
standards address the location of 2 ppt salinities from February to 
June and, therefore, address both critical habitat requirements for 
delta smelt and a range of interrelated parameters that affect other 
species that rely on estuarine habitat.'' (59 FR 854) Based on the 
common legal and biological underpinnings of the critical habitat 
designation and the proposed water quality standards, the Service's 
treatment of salinity as a primary constituent element and the textual 
references to the proposed salinity standards were appropriate and 
fully consistent with the goal of assuring substantive consistency 
between the two proposals.
    Because the designation of critical habitat and EPA's proposed Bay/
Delta standards have common elements, the critical habitat designation 
must address the standards, and, at a minimum, must not be inconsistent 
with them, and vice versa. The January 6, 1994, critical habitat 
proposal did not incorporate specific salinity standards into the 
regulatory designation of habitat, as was the case with the initial 
critical habitat proposal published in 1991. Rather, the 1994 proposal 
designated water quality as a primary constituent element, stating--
``salinity concentrations [as] required to maintain delta smelt habitat 
for spawning, larval and juvenile transport, rearing, and adult 
migration.''
    The coordinated Federal effort and the substantive consistency of 
the EPA and Service proposals are a direct reflection of the agencies' 
intent to address Bay/Delta issues in an effective and responsible 
manner. The coordinated Club Fed process is intended to address 
concerns expressed by the State of California of a perceived lack of 
coordination among the Federal agencies.
    Comment 28: One commenter thought designation of critical habitat 
was not prudent at this time, since critical habitat would not provide 
the delta smelt any more protection than the listing of the species had 
already provided. Another commenter thought designating critical 
habitat at the present time would interfere with the delta smelt 
recovery planning process.
    Service Response: Designation of critical habitat is prudent at 
this time because the designation will provide substantive benefits to 
the delta smelt beyond those already resulting from its status as a 
threatened species. Critical habitat serves to preserve options for a 
species' eventual recovery. A critical habitat designation contributes 
to species conservation primarily by identifying important geographic 
areas, and by describing the features within the areas that are 
essential to the species. The designation puts public and private 
entities on notice that the area is important habitat. Section 7 of the 
Act requires Federal agencies to ensure that any action they authorize, 
fund, or carry out is not likely to destroy or adversely modify 
designated critical habitat. This section requires parties to consult 
with the Service to avoid jeopardy and destruction or adverse 
modification to important habitat areas.
    A designation of critical habitat provides a clearer indication to 
Federal agencies as to when consultation under section 7 is required, 
particularly in cases where the action would not result in direct 
mortality or injury to individuals of the listed species (e.g., an 
action occurring within the critical area when a migratory species is 
not present). The critical habitat designation, describing the 
essential physical or biological features of the habitat, also assists 
parties in determining which activities conducted outside the 
designated area are subject to section 7 consultation (i.e., activities 
that may affect primary constituent elements of the designated area).
    Designating critical habitat also assists private, State, and 
Federal agencies in planning future actions, since the designation 
establishes, in advance, those habitats that will be given special 
consideration in section 7 consultations and section 10 incidental take 
activities. With the designation of critical habitat, potential 
conflicts between projects and endangered or threatened species can be 
identified and possibly avoided early in the agency's planning process.
    Designating critical habitat will not interfere with recovery 
planning efforts now in progress. A recovery plan would be prepared for 
the delta smelt pursuant to the Act whether or not critical habitat was 
designated for the species.
    Comment 29: One commenter thought Club Fed could not restore 
natural resources to levels existing during times of significantly 
fewer people under current California law. Another respondent believed 
the Service may not refer to EPA's water quality standards because the 
estuarine standards are based on historical conditions, rather than on 
``existing conditions'' now occurring in the Estuary. The respondent 
claims there is a temporal element in the definition of critical 
habitat, stating that critical habitat is defined in the Act in terms 
of existing conditions, and the Service must look to specific areas 
which contain physical and biological features essential to the 
conservation of the species at the time it is listed. The commenter 
went on to say that critical habitat may only consist of those areas 
that currently contain essential physical and biological features.
    Service Response: The definition of critical habitat does not 
require that all primary constituent elements necessarily be conditions 
existing at the time critical habitat is designated. Conditions 
existing historically in the Estuary are required to recover the delta 
smelt. Conditions now occurring in the Estuary have resulted in the 
decline of the delta smelt population, because the Estuary currently 
does not contain all of the physical and biological features (e.g., 
habitat requirements and salinity) necessary for each of the species' 
life stages. Critical habitat for the delta smelt identifies areas 
needed to conserve the species, so it may recover and, ultimately, be 
delisted. In order to accomplish recovery, it is necessary that 
critical habitat encompass conditions that are superior to existing 
conditions, so that all of the physical and biological features 
necessary for the delta smelt are present in the Estuary. The Delta 
Native Fishes Recovery Team has identified 1968 as a time when the 
Estuary had appropriate hydrologic conditions that would allow recovery 
of the delta smelt. An interagency Statement of Principles (Plenert, 
Fullerton, and Seraydarian, in litt. 1992) among the Service, NMFS and 
EPA have found that the Estuary ecosystem and its anadromous and 
resident fisheries were relatively healthy during the years between 
1960-1970. The Service recognizes no significant conflict with managing 
toward historic conditions for all primary constituent elements as a 
conservation strategy for the delta smelt.
    The Service notes that the 1994 revised proposed critical habitat 
for the delta smelt contains the physical and biological features 
essential for the conservation of the delta smelt. Using equations 
developed by Kimmerer and Monismith (1992) to calculate salinity, DWR 
(1993) determined that the isohaline was located downstream of the Roe 
Island historic reference point 124 days, and was between Roe Island 
and Chipps Island habitat 14 days between February 1 and June 31 in 
1993 (DWR 1993). Therefore, conditions for spawning, larval and 
juvenile transport, rearing and adult migration was, in fact, available 
for all life stages as recently as 1993. However, these physical and 
biological features do not occur frequently enough, and are not 
protected during critical periods in February through June, especially 
in drier water years. The mixing zone was pushed out beyond Roe Island 
during this period because 1993 was a wet year. Water quality criteria 
are necessary to ensure habitat suitable for the delta smelt are 
available at critical times in all water-year types.
    Comment 30: The Service did not identify a plan, any directives, or 
a goal to ensure that delta smelt are protected, or to indicate when 
the species is recovered.
    Service Response: A critical habitat designation need not, and 
should not, include specific management plans or recovery goals. 
Designating critical habitat for a species does not result in a 
management or recovery plan. Critical habitat simply identifies areas 
where conservation efforts should be concentrated. Designating critical 
habitat alone will not dictate how the delta smelt should be protected, 
nor will it require identification of goals to measure the success of 
the designation. Plans, goals, and directives will be identified and 
set in motion during the recovery planning process. Section 4(f)(1) of 
the Act specifies what should be included in a recovery plan. Criteria 
for downlisting or delisting are contained in recovery plans, which 
function as goals to achieve species conservation. The Delta Native 
Fishes Recovery Team has developed a draft Recovery Plan for the delta 
smelt and other estuarine fish species, and will include recovery and 
delisting criteria for the delta smelt. The public will have the 
opportunity to comment on a draft delta smelt Recovery Plan before it 
is approved as a final plan as required by section 4(f)(4) of the Act.
    Comment 31: Senator Phil Wyman and The California Farm Bureau were 
disappointed with the quality of the public hearings held in Fresno 
because only the Service and the EPA attended the meeting to hear 
testimony and answer questions. The Senator and the Farm Bureau 
believed the Bureau and NMFS should have been at the hearing, since the 
issues involved ``Club Fed''. Moreover, several of the participants in 
Fresno felt the hearings were simply a ``going-through-the-motions'' 
exercise.
    Service Response: Section 4(b)(5)(E) of the Act requires the 
Service to hold a public hearing if one is requested within 45 days of 
the publication of a proposed rule. The Service received such a 
request, and held hearings in Fresno, Irvine, Sacramento, and San 
Francisco to accept public comment on two proposals by the Service and 
on one proposal by EPA--the proposed critical habitat designation for 
the delta smelt, listing of the Sacramento splittail, and Bay/Delta 
water quality standards.
    The hearings are not a ``going-through-the-motions'' event. Service 
staff review all oral comments presented at the public hearings from 
the hearing transcripts. Oral comments are given the same weight and 
consideration as are comments submitted in written form.
    Comment 32: Many commenters thought the Service should prepare an 
Environmental Impact Statement (EIS) required by NEPA, to comply with 
the holding in Douglas County v. Lujan. These commenters thought the 
Service should assess the environmental and social impacts that may 
occur in or near the Estuary, and outside the Estuary area as a result 
of designating critical habitat for the delta smelt. Commenters 
identified potential environmental impacts, including groundwater 
overdraft and subsequent land subsidence, sagging canals and leaking 
rivers, fugitive dust, warming of reservoir water, impacts on regional 
water quality control plans, increased energy use, impacts on listed 
and candidate species, loss of water for wetlands, loss of open-space 
habitat provided by farms, and impacts on regional recreational use at 
reservoirs.
    Service Response: The decision in Pacific Legal Foundation v. 
Andrus (657 F.2d 829) held that an EIS is not required for listings 
under the Act. The decision noted that preparing an EIS on listing 
actions does not further the goals of NEPA or the Act. The Service 
believes that, under the reasoning of this decision, preparing an EIS 
for the delta smelt critical habitat designation would not further the 
goals of NEPA, or the Act, and is not legally required.
    The United States District Court for the District of Oregon in 
Douglas County v. Lujan held that critical habitat designations should 
be analyzed under NEPA. However, the decision is stayed pending appeal 
to the Ninth Circuit.
    In addition, see the discussion in this rule respecting NEPA 
compliance.
    Comment 33: One commenter thinks the Service violated the Federal 
Advisory Committee Act (FACA) because it relied on scientific 
information developed by the San Francisco Estuary Project (SFEP) in 
developing the revised critical habitat designation.
    Service Response: Section 4(b)(2) of the Act specifies that ``The 
Secretary shall designate critical habitat * * * on the basis of the 
best scientific data available * * *.'' When the Service identifies 
critical habitat, it relies on scientific data in published literature, 
data gathered as a result of status reviews, data received during the 
public comment periods, and information communicated in conversations 
with biologists, economists and other specialists. A summary of the 
findings of the SFEP (1993) was included in the body of information 
that the Service used to revise the proposed rule to designate critical 
habitat.
    Critical habitat for the smelt was first proposed in October, 1991. 
The Service revised the critical habitat boundaries in 1994, relying on 
the best scientific information available from California Department of 
Fish and Game biologists, Service biologists, and new scientific 
information received during the public comment period from the EPA and 
other commenters. Included in this information were the findings and 
recommendations of the SFEP.
    Had the Service not used SFEP information, the Service would not 
have complied with section 4(b)(2) of the Act, which requires use of 
the best scientific evidence available. SFEP was created in 1988 as 
part of EPA's National Estuary Program. The SFEP is an Environmental 
Management Program of EPA, the State of California and the Association 
of Bay Area Governments. The Service has participated in the SFEP 
extensively over the past several years. The SFEP developed 
recommendations for estuarine standards, and complied with FACA when 
they conducted workshops and meetings, and when they chose participants 
to work on the standards.
    Comment 34: One commenter thought the critical habitat designation 
is defective since the data supporting the expansion of critical 
habitat for the delta smelt was based on personal communications not 
available for the public review.
    Service Response: The Service relied on information that has been 
available to the public by contacting the California Department of Fish 
and Game, EPA or the Service. The administrative record for the 
critical habitat designation is and has been available for public 
inspection since publication of the initial proposed rule in 1991.
    Comment 35: One commenter urged the Service and the EPA to exhaust 
all possible remedies to recover the delta smelt (e.g., by using the 
Delta Protection Act) before more burdens were placed on California's 
water users with the designation of critical habitat.
    Service Response: Pursuant to 50 CFR 424.12, the Service must 
designate critical habitat unless it is not prudent to do so. The 
Service has not concluded that it is not prudent to designate critical 
habitat. Further, critical habitat is determinable. Therefore, the 
requirement at section 4(b)(6)(c)(ii) to publish a final designation by 
not more that one year after listing applies.
    Comment 36: One commenter felt the proposed critical habitat 
designation should be withdrawn since the Service did not comply with 
the statutory time period for designating critical habitat for the 
delta smelt. The commenter cited Idaho Farm Bureau Federation v. 
Babbitt, 839 F.Supp. 739 (D. Idaho 1993) to support its contention.
    Service Response: In this rulemaking, the Service first proposed 
critical habitat for the delta smelt in 1991. It revised its proposal 
in 1994 after public comment indicated that the Service had not 
included important spawning habitat for the species. These facts are 
significantly different from those of the case cited by the commenter. 
As such, the Service does not apply the holding in that case to this 
rulemaking effort.
    Comment 37: One commenter thought measures implemented in the past 
to protect delta smelt habitat be given a ``credit'' in any future 
section 7 consultation or section 10 determination with the Service.
    Service Response: Under sections 7 and 10 of the Act, the Service 
assesses the merits of project proposals on a case-by-case basis. In a 
formal section 7 consultation, the Service evaluates the effects of an 
action, creating an environmental baseline (50 CFR 402.14(g)(3)). This 
baseline includes the past and present impacts of all Federal, State, 
or private actions and other human activities in the action area, the 
anticipated impacts of all proposed Federal projects in the action area 
that have already undergone formal or early section 7 consultation, and 
the impact of State or private actions which are contemporaneous with 
the consultation in process (50 CFR 402.02). Conservation actions 
proposed by project proponents can be considered as suitable measures 
to reduce the impact of incidental take, or otherwise reduce, mitigate, 
and compensate for project effects.

Economic Issues

    Comment 38: Many commenters thought the economic analysis prepared 
for the Service by the EPA was inadequate.
    Service Response: The economic analysis is described and its 
results are summarized in this final rule. The Service believes the 
economic analysis is sufficient in that it adequately and appropriately 
identifies costs of designating critical habitat. As such, it enables 
the Secretary to exclude areas from critical habitat designation if the 
benefits of an exclusion are found to outweigh the benefits of 
including an area as critical habitat.
    Comment 39: Several commenters accused the Service of incorrectly 
minimizing the economic impacts in the delta smelt critical habitat 
designation since the impacts associated with the critical habitat 
designation were separated from the economic impacts attributable to 
the listing of the species.
    Service Response: Section 4(b)(2) of the Act requires the Service 
to consider the economic and other relevant impacts of designating 
critical habitat. It does not direct the Service to assess the economic 
impacts of both listing the species and designating its critical 
habitat. Section 4(b)(1)(A) of the Act explicitly precludes the Service 
from considering the economic impacts of listing a species as 
threatened or endangered. The congressional intent behind inclusion of 
this statutory provision was to ensure that only relevant biological 
criteria are used to assess the ecological status of a species.
    The 1994 revised proposed critical habitat designation for the 
delta smelt explained the economic impacts attributable to listing and 
to critical habitat designation. Subsequent to listing and prior to 
this final critical habitat designation, protective measures for the 
delta smelt (e.g., as provided through section 7 consultation with the 
Bureau) have been in place and created economic impacts not associated 
with critical habitat designation. In a comprehensive economic analysis 
prepared by the EPA and other economists for the Service, the economic 
impacts attributed to designating critical habitat have been evaluated. 
The Service has not limited the examination of economic impacts so as 
to minimize the economic effects of designating critical habitat.
    Comment 40: One commenter thought that the Service could not begin 
to define critical habitat until it fully considered the economic 
impacts of the designation. The commenter thought a proposed rule for 
critical habitat could not be drafted until an economic analysis was 
conducted, and an opportunity to comment on the analysis was provided 
to interested parties. Another commenter thought the public should be 
able to comment on a revised critical habitat designation in the event 
the Secretary excludes portions of habitat which were included in the 
revised proposed rule.
    Service Response: The Service has not defined critical habitat 
prematurely for the delta smelt because the Act does not require 
completion of an economic analysis before the Service can propose 
critical habitat areas. In a critical habitat rulemaking conducted in 
accordance with the Act and the Administrative Procedure Act (APA), the 
Service defines and proposes critical habitat boundaries, conducts an 
economic impact analysis, takes public comment on the proposed critical 
habitat designation and the economic analysis, makes exclusions, if 
any, to critical habitat boundaries, and promulgates a final rule. The 
Secretary, through the Service, has the discretion to exclude critical 
habitat areas based on economics, in accordance with the section 
4(b)(2) standard. The section allows the Secretary to exclude any area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of 
critical habitat, provided that exclusion will not result in extinction 
of a species. The Service has properly conducted critical habitat 
rulemaking for the delta smelt.
    Neither the Act, nor its regulations, require the Service to allow 
public comment on revised critical habitat designations where the 
Secretary has excluded areas of proposed critical habitat. The standard 
rulemaking process requires preparation of a proposed rule followed by 
a final rule. Publishing a draft final rule is not required. The 
Service acknowledges that the public was allowed to comment in the 
above described manner in the critical habitat designation for the 
Northern Spotted Owl, however, the opportunity for public comment was a 
policy decision made specifically for that rulemaking and is not 
required by law.
    The Service has provided ample opportunity for the public to 
comment on the delta smelt critical habitat designation proposals and 
on the economic analysis during prescribed comment periods from October 
3 to February 3, 1992; March 16 to April 30, 1993, and again from 
January 27 to March 11, 1994. Four public hearings also were held to 
solicit comments on the revised proposed critical habitat designation.
    Comment 41: One commenter thought the critical habitat designation 
was flawed since the economic analysis could not properly analyze 
economic impacts likely to arise from the proposed designation, because 
the Service failed to present any focused or concrete indication of 
what specific management measures would be pursued. The commenter 
thought the public was not able to effectively comment on the critical 
habitat designation due to this inadequacy.
    Service Response: Designating critical habitat does not result in a 
management plan. Specific management measures are identified in a draft 
Recovery Plan that currently is being prepared by the Service, and need 
not be identified in a proposed critical habitat designation.
    As described in the above comment, the Service believes the public 
was given an opportunity to effectively comment on the critical habitat 
designation and the draft economic analysis. The draft RIA was 
available for review and provided sufficient detail so that the public 
could provide meaningful comments.
    Comment 42: One commenter believes the critical habitat designation 
is deficient because the Service failed to analyze the potential 
economic impacts of any particular portion of the Delta.
    Service Response: Section 4 of the Act requires the Secretary to 
take into consideration ``The economic impact * * * of specifying any 
particular area as critical habitat.'' The Service may exclude any area 
from critical habitat if it is determined that the benefits of such 
exclusion outweigh the benefits of specifying such areas as part of 
critical habitat, unless failure to designate such area will result in 
the extinction of the species.
    The Service believes it has adequately analyzed the potential 
economic impacts of the Estuary ``area.'' The Act does not require an 
agency to analyze potential economic impacts for any specific or 
particular ``area.'' An ``area'' is not limited to particular reaches 
of a river, or particular areas of a species' habitat.
    Comment 43: The Department of the Army thought the Service did not 
sufficiently analyze the economic impacts of designating critical 
habitat, and did not include adequate economic data. They thought the 
Service should have included channel dredging activities and the 
maintenance of flood control levees in the economic analysis, including 
the economic impacts of potential failure and flooding since 
maintenance might be limited due to critical habitat designation.
    Service Response: The Service believes the economic impacts of 
designating critical habitat have been sufficiently addressed, and 
include discussion of dredging and levee maintenance. As discussed in 
the final rule to list the delta smelt, and in the revised proposed 
rule to designate critical habitat for the species, the Service 
determined that the economic impact of restricting activities 
associated with deep water navigation channel dredging were 
attributable to the jeopardy standard imposed by the listing of the 
delta smelt as a threatened species. Hence, the economic impacts of 
these activities can not be associated with designating critical 
habitat.
    The Service did determine that levee maintenance may adversely 
modify critical habitat without necessarily jeopardizing the delta 
smelt. The economic impacts of restrictions associated with the 
construction and implementation of these projects have been analyzed to 
determine the economic cost or benefit of critical habitat designation. 
Properly scheduling maintenance and construction activities to avoid 
periods critical to a species can allow projects to go forward without 
incurring large economic impacts.

National Environmental Policy Act

    The Service has determined that an Environmental Assessment and/or 
an Environmental Impact Statement, as defined under the authority of 
the National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. A notice outlining the Service's reasons for this determination 
was published in the Federal Register on October 25, 1983 (48 FR 
49244).

Regulatory Flexibility Act and Executive Order 12866

    This proposed rule has been reviewed under Executive Order 12866. 
The Department of the Interior has determined that the proposed rule 
will not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). Based on the information discussed in this rule, significant 
economic impacts will not result from the critical habitat designation. 
Also, no direct costs, enforcement costs, information collection, or 
recordkeeping requirements are imposed on small entities by this 
designation. Further, the rule contains no recordkeeping requirements 
as defined by the Paperwork Reduction Act of 1980.

Takings Implications Assessment

    The Service has analyzed the potential takings implications of 
designating critical habitat for the delta smelt in a Takings 
Implications Assessment prepared pursuant to requirements of Executive 
Order 12630, ``Governmental Actions and Interference with 
Constitutionally Protected Property Rights.'' The Takings Implications 
Assessment concludes that the designation does not pose significant 
takings implications.

References Cited

Arthur, J.F., and M.D. Ball. 1978. Entrapment of suspended materials 
in the San Francisco Bay-Delta Estuary. U.S. Dept. Interior, Bureau 
of Reclamation, Sacramento, California.
Arthur, J.F., and M.D. Ball. 1979. Factors influencing the 
entrapment of suspended material in the San Francisco Bay-Delta 
Estuary. Pages 143-174 in T.J. Conomos, editor. Pacific Division, 
Amer. Assoc. Advance. Sci., San Francisco, California.
Arthur, J.F., and M.D. Ball. 1980. The significance of the 
entrapment zone location to the phytoplankton standing crop in the 
San Francisco Bay-Delta Estuary. U.S. Dept. Interior, Water and 
Power Resources Service.
California Department of Water Resources 1993. Operations and 
Maintenance Compliance Monitoring Preliminary Data on the 
Positioning of the 2 ppt Isohaline (X2) for the Period January 1, 
1993 to November 30, 1993.
California Department of Water Resources and the Bureau of 
Reclamation. 1994. Effects of the Central Valley Project and State 
Water Project on Delta Smelt. Draft Biological Assessment prepared 
for the U.S. Fish and Wildlife Service.
Carter, H., and G. Goldman. 1992. The Measure of California 
Agriculture: Its Impact on the State Economy. University of 
California, Division of Agriculture and Natural Resources.
Contra Costa County Water Association and The Environmental Defense 
Fund. 1987. A salinity standard to maximize phytoplankton abundance 
by positioning the entrapment zone in Suisun Bay. Prepared for the 
SWRCB 1987 Water Quality/Water Rights Proceeding on the San 
Francisco Bay/Sacramento-San Joaquin Delta. CCCWA/EDF Exhibit 1.
Erkkila, L.F., J.W. Moffet, O.B. Cope, B.R. Smith, and R.S. Smith. 
1950. Sacramento-San Joaquin Delta fishery resources: Effects of 
Tracy Pumping Plant and the Delta Cross Channel. U.S. Fish and 
Wildlife Service Special Scientific Rept. 56:1-109.
Ganssle, D. 1966. Fishes and decapods of San Pablo and Suisun Bays. 
Pages 64-94 in D.W. Kelley, editor. Ecological studies of the 
Sacramento-San Joaquin estuary, Part 1. Calif. Dept. Fish and Game, 
Fish Bulletin 133.
Goldman, C.R., and A.J. Horne. 1983. Limnology. McGraw-Hill Book 
Company, New York, New York.
Governor's Water Policy Council of the State of California and the 
Federal Ecosystem Directorate. 1994. Framework Agreement with 
respect to environmental protection and water supply dependability 
in the San Francisco Bay, Sacramento-San Joaquin Delta Estuary and 
its watershed (Bay-Delta Estuary).
Herbold, B. 1994. Habitat requirements of the delta smelt. Pages 1-3 
in R. Brown, editor. Interagency Ecological Studies Program for the 
Sacramento-San Joaquin Estuary Newsletter. Winter 1994. California 
Department of Water Resources, Sacramento, California.
Hilborn, R. 1992. Hatcheries and the Future of Salmon in the 
Northwest. Fisheries 17:5-8. WRINT-NHI-20. Article submitted by the 
Natural Heritage Institute for State Water Resources Control Board 
Water Rights Phase of the Bay/Delta Proceedings, July 27, 1992.
Kimmerer, W. and Monismith, S. 1992. Revised estimates of position 
of 2 ppt salinity. Memo prepared by Biosystems Analysis, Inc. for 
the San Francisco Estuary Project. WRINT-SFEP-7. Submitted by the 
San Francisco Estuary Project for State Water Resources Control 
Board Water Rights Phase of the Bay/Delta Proceedings.
Lindberg, J.C. 1992. Development of delta smelt culture techniques. 
Report prepared by Biosystems Analysis, Inc. for the Department of 
Water Resources. 22 pp.
Lindberg, J.C. and Marzuola, C. 1993. Delta smelt in a newly-
created, flooded island in the Sacramento-San Joaquin Estuary, 
Spring 1993. Report prepared by Biosystems Analysis, Inc. for the 
California Department of Water Resources.
Mager, R. 1993. Delta smelt culturing. Pages 2-3 in W. Kimmerer 
Minutes of the March 1993 Food Chain Group Meeting. Department of 
Water Resources. April 22, 1993, memo. 8 pp.
Monroe, M.W., and J. Kelly. 1992. State of the estuary: A report on 
conditions and problems in the San Francisco Bay/Sacramento-San 
Joaquin Delta Estuary. San Francisco Estuary Project, Oakland, 
California.
Mortensen, W.E. 1987. Investigation of estuarine circulation in 
Suisun Bay. Prepared for the Bay Institute of San Francisco for the 
SWRCB 1987 Water Quality/Water Rights Proceeding on the San 
Francisco Bay/Sacramento-San Joaquin River Delta. Bay Institute 
Exhibit 49.
Moyle, P.B. 1976. Inland Fishes of California. University of 
California Press, Berkeley, California.
Moyle, P.B. and B. Herbold. 1989. Status of the delta smelt, 
Hypomesus transpacificus. Unpublished report prepared for U.S. Fish 
and Wildlife Service, Sacramento Field Office, Habitat Conservation.
Moyle, P.B., B. Herbold, D.E. Stevens, and L.W. Miller. 1992. Life 
history and status of delta smelt in the Sacramento-San Joaquin 
Estuary, California. Trans. Amer. Fish. Soc. 121:67-77.
Natural Heritage Institute 1992. Artificial propagation of declining 
fish species in the estuary does not substitute for the habitat 
restoration measures required for natural production. WRINT-NHI-19. 
Expert testimony of Dr. Peter B. Moyle on artificial propagation for 
Delta fish species for State Water Rights Phase of the Bay/Delta 
Proceedings, July 27, 1992.
Nichols, F.H., J.E. Cloern, S.N. Luoma, and D.H. Peterson. 1986. The 
modification of an estuary. Science 231:567-573.
Radtke, L.D. 1966. Distribution of smelt, juvenile sturgeon, and 
starry flounder in the Sacramento-San Joaquin Delta with 
observations on food of sturgeon. Pages 115-129 in J.L. Turner and 
D.W. Kelley, editors. Ecological studies of the Sacramento-San 
Joaquin delta, Part 2. Calif. Dept. Fish and Game, Fish Bulletin 
136.
San Francisco Estuary Project, 1993. Managing Freshwater Discharge 
to the San Francisco Bay/Sacramento-San Joaquin Delta Estuary: The 
Scientific Basis for an Estuarine Standard. 17 pp. + appendices.
Stevens, D.E., L.W. Miller, and B.C. Bolster. 1990. Report to the 
Fish and Game Commission: A status review of the delta smelt 
(Hypomesus transpacificus) in California. Calif. Dept. Fish and Game 
Candidate Species Status Report 90-2.
Sweetnam, D.A., and D.E. Stevens. 1993. Report to the Fish and Game 
Commission: A status review of the delta smelt (Hypomesus 
transpacificus) in California. Calif. Dept. Fish and Game Candidate 
Species Status Report 93-DS.
U.S. Environmental Protection Agency. 1994. Regulatory impact 
assessment of the proposed water quality standards for the San 
Francisco Bay/Delta and critical habitat requirements for the delta 
smelt. San Francisco, CA. With technical assistance from Jones & 
Stokes Associates, Inc. Sacramento, CA.
U.S. Fish and Wildlife Service. 1994. Formal Consultation on the 
1994 Operation of the Central Valley Project and State Water 
Project: Effects on Delta Smelt. February 4, 1994, Sacramento, 
California.
Wang, J.C.S. 1986. Fishes of the Sacramento-San Joaquin estuary and 
adjacent waters, California: A guide to the early life histories. 
Interagency Ecological Study Program for the Sacramento-San Joaquin 
Estuary. Tech. Rept. 9.
Wang, J.C.S. 1991. Early life stages and early life history of the 
delta smelt, Hypomesus transpacificus, in the Sacramento-San Joaquin 
estuary, with comparison of early life stages of the longfin smelt, 
Spirinchus thaleichthys. Interagency Ecological Studies Program for 
the Sacramento-San Joaquin Estuary. Tech. Rept. 28.

Authors

    The primary authors of this proposed rule are Nadine R. Kanim and 
Dana Jacobsen, Sacramento Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Regulation Promulgation

    Accordingly, the Service hereby amends part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.


Sec. 17.11  [Amended]

    2. Amend Sec. 17.11(h), in the entry in the table under FISHES for 
``Smelt, delta,'' in the column under ``Critical habitat'' by revising 
``NA'' to read ``17.95(e).''
    3. Amend Sec. 17.95(e) by adding critical habitat of the delta 
smelt in the same alphabetical order as the species occurs in 
Sec. 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

    (e) * * *
* * * * *

DELTA SMELT (Hypomesus transpacificus)

    California--Areas of all water and all submerged lands below 
ordinary high water and the entire water column bounded by and 
contained in Suisun Bay (including the contiguous Grizzly and Honker 
Bays); the length of Montezuma Slough; and the existing contiguous 
waters contained within the Delta, as defined by section 12220, of 
the State of California's Water Code of 1969 (a complex of bays, 
dead-end sloughs, channels typically less than 4 meters deep, 
marshlands, etc.) as follows:
    Bounded by a line beginning at the Carquinez Bridge which 
crosses the Carquinez Strait; thence, northeasterly along the 
western and northern shoreline of Suisun Bay, including Goodyear, 
Suisun, Cutoff, First Mallard (Spring Branch), and Montezuma 
Sloughs; thence, upstream to the intersection of Montezuma Slough 
with the western boundary of the Delta as delineated in section 
12220 of the State of California's Water Code of 1969; thence, 
following the boundary and including all contiguous water bodies 
contained within the statutory definition of the Delta, to its 
intersection with the San Joaquin River at its confluence with 
Suisun Bay; thence, westerly along the south shore of Suisun Bay to 
the Carquinez Bridge.

BILLING CODE 4310-55-P

TR19DE94.000

BILLING CODE 4310-55-C
    Primary Constituent Elements--physical habitat, water, river 
flow, and salinity concentrations required to maintain delta smelt 
habitat for spawning, larval and juvenile transport, rearing, and 
adult migration.

    Dated: December 8, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 94-31063 Filed 12-16-94; 8:45 am]
BILLING CODE 4310-55-P