[Federal Register Volume 64, Number 25 (Monday, February 8, 1999)]
[Rules and Regulations]
[Pages 5963-5981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2867]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC26


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened status for the Sacramento splittail (Pogonichthys 
macrolepidotus) pursuant to the Endangered Species Act of 1973, as 
amended (Act). Sacramento splittail occur in Suisun Bay and the San 
Francisco Bay-Sacramento-San Joaquin River Estuary (Estuary) in 
California. The Sacramento splittail has declined by 62 percent over 
the last 15 years. This species is primarily threatened by changes in 
water flows and water quality resulting from the export of water from 
the Sacramento and San Joaquin rivers, periodic prolonged drought, loss 
of shallow-water habitat, introduced aquatic species, and agricultural 
and industrial pollutants. Designation of critical habitat is not 
prudent at this time. This rule implements the protection and recovery 
provisions afforded by the Act for Sacramento splittail.

EFFECTIVE DATE: March 10, 1999.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the 
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
3310 El Camino Avenue, Suite 130, Sacramento, CA 95821-6340.

FOR FURTHER INFORMATION CONTACT: Michael Thabault, Deputy Assistant 
Field Supervisor, U.S. Fish and Wildlife Service (see ADDRESSES 
section) (telephone 916-979-2710).

SUPPLEMENTARY INFORMATION:

Background

    As used in this rule, the term ``Delta'' refers to all tidal waters 
contained within the legal definition of the San Francisco Bay-
Sacramento-San Joaquin River Delta, as delineated by section 12220 of 
the State of California's Water Code. Generally, the Delta is contained 
within a triangular area that extends south from the City of Sacramento 
to the confluence of the Stanislaus and San Joaquin rivers at the 
southeast corner and Chipps Island in Suisun Bay. The term ``Estuary,'' 
as used in this rule, refers to tidal waters contained in the 
Sacramento and San Joaquin rivers, the Delta, and San Pablo and San 
Francisco bays. ``Export facilities,'' as used in this rule, refer to 
the Central Valley Project and State Water Project water export 
facilities in the South Delta.
    Sacramento splittail were first described in 1854 by W.O. Ayres as 
Leuciscus macrolepidotus and by S.F. Baird and C. Girard as 
Pogonichthys inaeqilobus. Although Ayres' species description is 
accepted, the species was assigned to the genus Pogonichthys in 
recognition of the distinctive characteristics exhibited by the two 
California splittail species P. ciscoides and P. macrolepidotus 
(Hopkirk 1973). Pogonichthys ciscoides, endemic to Clear Lake, Lake 
County, California, has been extinct since the early 1970s. The 
Sacramento splittail (hereafter splittail) represents the only existing 
species in its genus in California.
    The name splittail refers to the distinctive tail of the fish. 
Pogon-ichthys means bearded fish, referring to the small barbels 
(whisker-like sensory organs) on the mouth of the fish, unusual in 
North American cyprinids. Macro-lepidotus means large-scaled. The 
splittail is a large cyprinid fish that can exceed 40 centimeters (cm) 
(16 inches (in)) in length (Moyle 1976). Adults are characterized by an 
elongated body, distinct nuchal hump (on the back of the neck), and 
small, blunt head, usually with barbels at the corners of the slightly 
subterminal mouth. The enlarged dorsal lobe of the caudal fin 
distinguishes the splittail from other minnows in the Central Valley of 
California. Splittail are dull, silvery-gold on the sides and olive-
gray dorsally. During spawning season, pectoral, pelvic, and caudal 
(tail) fins are tinged with an orange-red color. Males develop small 
white nuptial tubercles on the head. Breeding tubercles (nodules) also 
appear on the base of the fins (Moyle in prep).
    Splittail are native to California's Central Valley, where they 
were once widely distributed (Moyle 1976). Historically, splittail were 
found as far north as Redding on the Sacramento River (at the Battle 
Creek Fish Hatchery in Shasta County), as far south as the present-day 
site of Friant Dam on the San Joaquin River, and up the tributaries of 
the Sacramento River as far as the current Oroville Dam site on the 
Feather River and Folsom Dam site on the American River (Rutter 1908). 
Recreational anglers in Sacramento reported catches of 50 or more 
splittail per day prior to the damming of these rivers (Caywood 1974). 
Splittail were captured in the past in southern San Francisco Bay and 
at the mouth of Coyote Creek in Santa Clara County, but they are no 
longer present there (Moyle in prep). The species was part of the 
Central Valley Native American diet (Caywood 1974).
    In recent times, dams and diversions have increasingly prevented 
splittail from upstream access to the large rivers, and the species is 
now restricted to a small portion of its former range (Moyle and 
Yoshiyama 1992). However, during wet years, they migrate up the 
Sacramento River as far as the Red Bluff diversion dam in Tehama 
County, and into the lowermost reaches of the Feather and American 
rivers (Moyle in prep, Jones and Stokes 1993, Charles Hanson, State 
Water Contractors, in litt. 1993). Small numbers of splittail have 
recently been found in the upper Sacramento and San Joaquin rivers and 
their tributaries (Baxter 1995). Recent surveys of San Joaquin Valley 
streams found splittail in the San Joaquin River below its confluence 
with the Merced River, mainly following wet winters (Moyle in prep). 
Splittail have also been recorded using the Sutter and Yolo bypasses 
for spawning areas during wet winters (Sommer et al. 1997). Successful 
spawning has been recorded in the lower Tuolumne River during wet years 
in the 1980s, as well as in 1995. Both adults and juveniles were 
observed at Modesto, 11 kilometers (km) (6.6 miles (mi)) upriver from 
the mouth of the river (Moyle in prep). However, all of the sightings 
reported above were during wet years when splittail were able to 
exploit more spawning habitat. Except for very wet years, the species 
is for the most part now confined to the Delta, Suisun Bay, Suisun 
Marsh, and Napa Marsh. In the Delta, they are most abundant in the 
north and west portions when populations are low, but are more evenly 
distributed throughout the Delta following years of successful 
reproduction (Sommer et al. 1997).
    Splittail are relatively long-lived, frequently reaching 5 to 7 
years of age. An analysis of hard parts of the splittail indicate that 
larger fish may be 8 to 10

[[Page 5964]]

years old (Moyle in prep). Females are highly fecund, with the largest 
females producing over 250,000 eggs (Daniels and Moyle 1983). 
Populations fluctuate annually depending on spawning success, which is 
highly correlated with freshwater outflow and the availability of 
shallow-water habitat with submerged vegetation (Daniels and Moyle 
1983). Fish usually reach sexual maturity by the end of their second 
year. The onset of spawning is associated with rising water levels, 
increasing water temperatures, and increasing day length. Peak spawning 
occurs from the months of March through May, although records of 
spawning exist for late January to early July (Wang 1986). In some 
years, most spawning may take place within a limited period of time. 
For instance, in 1995, a year of extraordinarily successful spawning, 
most splittail spawned over a short period in April, even though larval 
splittail were captured from February through early July (Moyle in 
prep). Within each spawning season older fish reproduce first, followed 
by younger individuals (Caywood 1974). Spawning occurs over flooded 
vegetation in tidal freshwater and euryhaline habitats of estuarine 
marshes and sloughs and slow-moving reaches of large rivers. Larvae 
remain in shallow, weedy areas close to spawning sites for 10 to 14 
days and move into deeper water as they mature and swimming ability 
increases (Wang 1986 and Sommer et al. 1997).
    Splittail are benthic (bottom) foragers. In Suisun Marsh, they feed 
primarily on opossum shrimp (Neomysis mercedis, and presumably, the 
exotic Acanthomysis spp. as well), benthic amphipods (Corophium), and 
harpactacoid copepods, although detrital (non-living and detached 
organic) material makes up a large percentage of their stomach contents 
(Daniels and Moyle 1983). In the Delta, clams, crustaceans, insect 
larvae, and other invertebrates also are found in the diet. Predators 
include striped bass (Morone saxatilis) and other piscivores (Moyle 
1976).
    In recent years, splittail have been found most often in slow 
moving sections of rivers and sloughs and dead-end sloughs (Moyle et 
al. 1982, Daniels and Moyle 1983). Reports from the 1950s, however, 
mention Sacramento River spawning migrations and catches of splittail 
during fast tides in Suisun Bay (Caywood 1974). Because they require 
flooded vegetation for spawning and rearing, splittail are frequently 
found in areas subject to flooding. Historically, the major flood 
basins distributed throughout the Sacramento and San Joaquin valleys 
provided spawning and rearing habitat. These flood basins have all been 
reclaimed or modified for flood control purposes (e.g., Yolo and Sutter 
bypasses). Although primarily a freshwater species, splittail can 
tolerate salinities as high as 10 to 18 parts per thousand (ppt) (Moyle 
1976, Moyle and Yoshiyama 1992). California Department of Fish and Game 
(CDFG) survey data from 1979 through 1994 indicate that the highest 
abundances occurred in shallow areas of Suisun and Grizzly bays.
    Recent research indicates that splittail will use the Yolo and 
Sutter bypasses during the winter and spring months for foraging and 
spawning (Sommer et al. 1997). However, the Yolo Bypass may only be 
used by splittail during wet winters, when water from the Sacramento 
River over-tops the Fremont Weir and spills over the Sacramento Weir 
into the Bypass. In 1998, the Yolo and Sutter bypasses provided good 
habitat for fish, particularly splittail, when they were flooded for 
several weeks in March and April. In order to provide spawning habitat 
for splittail, water must remain on the bypasses until fish have 
completed spawning, and larvae are able to swim out on their own, 
during the draining process.
    The decline in splittail abundance has taken place during a period 
of increased human-induced changes to the seasonal hydrology of the 
Delta, especially the increased exports of freshwater. These changes 
include alterations in the temporal, spatial, and relative ratios of 
water diverted from the system. These hydrological effects, coupled 
with severe drought years, introduced aquatic species, the loss of 
shallow-water habitat to reclamation activities, and other human-caused 
actions, have reduced the species' capacity to recover from natural 
seasonal fluctuations in hydrology for which it was adapted.
    Analyses of survey data collected from 1967 to 1993 (Meng 1993, 
Meng and Moyle 1995) and data from 1967 to 1997 by Service, CDFG, and 
University of California at Davis biologists from several different 
studies indicate the following results--(1) Overall, splittail 
abundance indices have declined. Meng and Moyle (1995) demonstrated 
that on average, splittail have declined in abundance by 60 percent 
through 1993. The CDFG updated these data to include the most current 
data available and provided to the Service. The CDFG calculated the 
data using the updated information. The results were similar. These 
updated data demonstrate that on average, splittail have declined 
significantly in abundance by 50 percent since 1984. The greatest 
declines (over 80 percent) were found from studies that sampled the 
shallow Suisun Bay area, the center of the range of the species (Meng 
and Moyle 1995). The updated information also show a significant 
decline (43 percent) for the studies that sampled the shallow Suisun 
Bay area. A study that began in 1980 in the lower Estuary, at the 
outermost edge of splittail range, found the lowest percent decline (20 
percent) (CDFG unpublished data) through 1993. The analysis completed 
on the updated data also showed the smallest decline for this study (6 
percent). The number of splittail young taken at State and Federal 
pumping facilities (measured as number of individuals per acre-foot of 
water pumped), as of 1993, had declined 64 percent since 1984. With the 
updated data, the number of splittail young taken at State and Federal 
pumping facilities demonstrated a 97 percent increase. This percent 
increase is due to the unusually high salvage that occurred during 
1995.
    We estimate splittail populations to be 35 to 60 percent of what 
they were in the 1940s, and these estimates may be conservative (Moyle 
in prep). CDFG midwater trawl data indicate a decline from the mid-
1960s to the late 1970s, followed by a resurgence, with yearly 
fluctuations, through the mid-1980s. From the mid-1980s through 1994, 
splittail numbers have declined in the Delta, with some small increases 
in various years. This decline is also demonstrated in the updated CDFG 
data.
    (2) Overall splittail abundances vary widely among years. Sommer et 
al. 1997 also found that splittail recruitment success fluctuates 
widely from year to year and over long periods of time. During dry 
years abundance is typically low. During the dry years of 1980, 1984, 
1987, and 1988 through 1992, splittail abundance indices for young-of-
the-year were low, indicating poor spawning success. Additionally, all 
year class abundances were low during these years. In 1994, the fourth 
driest year on record, all splittail indices were extremely low.
    We believe wet years provide essential habitat for splittail and 
allow populations to rebound from dry years. Successful reproduction in 
splittail is often highly correlated with wet years. Large pulses of 
young fish were observed in wet years 1982, 1983, 1986, and 1995. In 
1995, one of the wettest years in recent history, an increase in all 
indices was recorded, as in 1986, which was another wet year following 
a dry year. However, young of the year taken per unit effort (for 
example, either the number of fish per net that is towed or

[[Page 5965]]

the number of fish per volume of water sampled) has actually declined 
in wet years, steadily from a high of 12.3 in 1978 to 0.3 in 1993. The 
updated data from CDFG demonstrate this same decline in wet years, from 
37.3 in 1978 to 0.6 in 1993. The abundance indices of splittail during 
the years of 1995, 1996, and 1997 were 44.5, 2.1, and 2.6, 
respectively. Year 1995 was a very wet year and splittail abundances 
were high. Years 1996 and 1997 were wet years, yet abundance indices 
were low. However, overall splittail declines remain high (82 percent/
43 percent with updated data) in the shallow-water Suisun Bay area, the 
center of its distribution.
    We believe high abundance indices in 1995 are an artifact of the 
highly unusual hydrological conditions that occurred. Therefore, we 
also calculated all of the percent declines, as stated above, without 
the 1995 abundance indices in the analysis. The overall decline is 67 
percent. The decline from the studies in the shallow Suisun Bay area 
without 1995 is 80 percent. For the study in the lower Estuary, the 
decline is 39 percent. The salvage data collected at both the State and 
Federal pumping facilities demonstrate a 22 percent decline. Other than 
1995, the salvage data include 1996 and 1997.
    (3) A strong relationship exists between young-of-the-year 
abundance and outflow (i.e., river outflow into San Francisco Bay after 
water exports are removed). As outflow increases, annual abundance of 
young-of-the-year splittail increases. Changes in outflow explain 55 to 
72 percent of the changes seen in young-of-the-year splittail 
abundance, depending on which survey data are analyzed.
    (4) Splittail are most abundant in shallow areas of Suisun and 
Grizzly bays where they generally prefer low-salinity habitats. 
Salinities in Suisun and Grizzly bays increase when, as a result of 
water exports or drought conditions, the mixing zone (the freshwater-
saltwater interface) shifts upstream.
    (5) Concentration of splittail in shallow areas suggests that they 
are particularly vulnerable to reclamation activities, such as 
dredging, diking, and filling of wetlands.
    The above data indicate that splittail abundances vary widely in 
response to environmental conditions, but the general population 
numbers are declining. The following are some reasons why the species 
is in decline. The splittail is primarily threatened by the altered 
hydraulics and reduced Delta outflow caused by the export of freshwater 
from the Sacramento and San Joaquin rivers through operation of the 
State and Federal water projects. These operations include not only the 
export of water from the Delta but also diversion of water to storage 
during periods of high run-off, which reduce instream flows and 
available submerged aquatic habitat for spawning and rearing. 
Additional threats to this species include--
    (1) Direct and indirect mortality at power plants and in-Delta 
water diversion sites;
    (2) Reduced river flows and changes in the seasonal patterns of 
flows in the Sacramento and San Joaquin rivers and their tributaries;
    (3) The loss of spawning and nursery habitat as a consequence of 
draining and diking for agriculture;
    (4) The loss of shallow-water habitat due to levee slope 
protection, marina construction, and other bank oriented construction 
activities;
    (5) The reduction in the availability of highly productive 
brackish-water habitat;
    (6) The presence of toxic substances, especially agricultural and 
industrial chemicals and heavy metals in their aquatic habitat;
    (7) Human and natural disturbance of the food web through altered 
hydrology and introduction of exotic species;
    (8) Flood control operations that strand eggs, larvae, juveniles, 
and adults;
    (9) The increase in severity of these effects by six years of 
drought; and
    (10) Entrainment (pulling) of fish through unscreened or 
inadequately screened municipal and agricultural diversions.

Previous Federal Action

    We included the Sacramento splittail as a category 2 candidate 
species for possible future listing as endangered or threatened in the 
January 6, 1989, Animal Notice of Review (54 FR 554). Category 2 
candidates were defined as those species for which information in our 
possession indicated that proposing to list as endangered or threatened 
was possibly appropriate, but for which conclusive data on biological 
vulnerability and threats were not currently available to support 
proposed rules. We discontinued the use of multiple candidate 
categories on February 28, 1996 (61 FR 7596), and species meeting the 
definition of the former category 2 are no longer considered 
candidates.
    On November 5, 1992, we received a petition from Mr. Gregory A. 
Thomas of the Natural Heritage Institute to add the Sacramento 
splittail to the List of Endangered and Threatened Wildlife and to 
designate critical habitat for this species in the Sacramento and San 
Joaquin rivers and associated estuary. Mr. Thomas identified eight 
organizations as co-petitioners, including the American Fisheries 
Society, the Bay Institute of San Francisco, the Natural Heritage 
Institute, the Planning and Conservation League, Save San Francisco Bay 
Association, Friends of the River, the San Francisco Baykeeper, and the 
Sierra Club. We published a 90-day finding on July 6, 1993 (58 FR 
36184), that the petition presented substantial information indicating 
that the requested action may be warranted. We initiated a status 
review and analyzed available data on this species (Meng 1993).
    On January 6, 1994, we published a proposed rule to list the 
splittail as a threatened species and requested public comment (59 FR 
862). The proposed rule constituted a 12-month finding that the 
petitioned action was warranted, in accordance with section 4(b)(3)(B) 
of the Act.
    On January 10, 1995, we published in the Federal Register (60 FR 
2638) a notice of a 6-month extension to make a final listing 
determination and reopened a 45-day public comment period on the 
proposed rule to list the splittail. The basis for this extension was 
to address differences of scientific opinion concerning the status of 
splittail upstream of the Delta, especially the existence of a resident 
population upstream of the Delta. In April 1995, subsequent to the 
close of the extension period, a moratorium on the processing of all 
final listing proposals was established by Congress in Public Law 104-
6. The moratorium was lifted on April 26, 1996. As mandated by the 
moratorium, we conducted no actions to finalize the proposed rule 
during the period April 1995 to April 1996.
    As described in detail below, we reopened the comment period on May 
18, 1998. We solicited the latest information regarding the abundance 
and distribution of the species. Additionally, we requested comments 
concerning the publication, ``Resilience of Splittail in the 
Sacramento-San Joaquin Estuary'' (Sommer et al. 1997).
    The processing of this final rule follows our final listing 
priority guidance for fiscal years 1998 and 1999 published in the 
Federal Register on May 8, 1998 (63 FR 25502). The guidance clarifies 
the order in which we will process rulemakings giving highest priority 
(Tier 1) to processing emergency rules to add species to the Lists of 
Endangered and Threatened Wildlife and Plants; second priority (Tier 2) 
to processing final determinations on proposals to add

[[Page 5966]]

species to the lists, processing new listing proposals, processing 
administrative findings on petitions (to add species to the lists, 
delist species, or reclassify listed species), and processing a limited 
number of proposed and final rules to delist or reclassify species; and 
third priority (Tier 3) to processing proposed and final rules 
designating critical habitat. Processing of this final rule is a Tier 2 
action.

Summary of Comments and Recommendations

    In the January 6, 1994, proposed rule (59 FR 862), we requested all 
interested parties to submit factual reports or information, that might 
contribute to the development of a final rule. We contacted State 
agencies, county governments, Federal agencies, scientific 
organizations, and other interested parties and requested comments. We 
held public hearings on the proposed splittail listing in conjunction 
with hearings on two other proposed Federal actions, the designation of 
critical habitat for delta smelt (Hypomesus transpacificus) (59 FR 
852), and the United States Environmental Protection Agency's (USEPA's) 
water quality standards for the Estuary (59 FR 810). We published 
newspaper notices of the public hearings on February 4, 1994, in the 
Sacramento Bee, Fresno Bee, Los Angeles Times, and San Francisco 
Chronicle, all of which invited general public comment. We held public 
hearings on February 23, 1994, in Fresno; on February 24, 1994, in 
Sacramento; on February 25, 1994, in San Francisco; and on February 28, 
1994, in Irvine. At each meeting, we took testimony from 1 p.m. to 4 
p.m. and 6 p.m. to 8 p.m.
    During the 3-month comment period from January 6 to March 7, 1994, 
we received comments (i.e., letters and oral testimony) from 133 
individuals, organizations, or government agencies. Many of these 
comments were given at joint public hearings for the combined Federal 
rulemaking package for the Sacramento-San Joaquin Delta (including the 
proposal to list the Sacramento splittail, the proposal to designate 
critical habitat for the delta smelt, and final water quality standards 
for the Delta being proposed by the USEPA). Only 13 of the 133 
commenters addressed the proposed rule to list the Sacramento 
splittail. Four of the 13 commenters that specifically addressed the 
proposed rule to list the Sacramento splittail provided oral testimony 
at the public hearings. Of the 13 commenters mentioned above, nine 
supported the listing of the splittail, two opposed the listing, and 
others provided comments considered as neutral. Five conservation 
organizations (or branches thereof), one sport fishing organization, 
two interested parties, and a Federal agency (the Bureau of Reclamation 
(BOR)) supported the proposed listing. The California Department of 
Water Resources (DWR) and the State Water Contractors opposed the 
proposed listing. We received no additional expert opinions from 
independent specialists concerning pertinent scientific or commercial 
data about the splittail.
    On August 4, 1994, we received a letter dated August 3, 1994, from 
the State Water Contractors requesting a 6-month extension on the 
listing determination. The reasons provided in the request for 
extension were the same as those submitted during the public comment 
period, addressed below.
    We granted a 6-month extension to address the status of splittail 
upstream of the Delta, and the importance of any such splittail to the 
population as a whole. Therefore, we reopened the public comment period 
for 45 days, beginning January 10, 1995, and ending February 24, 1995. 
During this second comment period we received one additional comment 
letter that opposed the listing of the splittail. The comment letter 
addressed this issue in part.
    On March 19 and March 20, 1998, the DWR and the State Water 
Contractors, respectively, requested the comment period be reopened. 
The basis of this request was that substantial data had been collected 
since 1995 regarding the abundance and distribution of the splittail. 
We believe that consideration of this and any new information is 
significant to the final determination of the status of the Sacramento 
splittail. For this reason, we sought information concerning abundance 
and distribution data for this species from 1995-1997. Specifically, we 
sought comments regarding information presented in the publication, 
``Resilience of Splittail in the Sacramento-San Joaquin Estuary'' 
(Sommer et al. 1997), and how the results affect our recommendation for 
listing the Sacramento splittail as a threatened species. The comment 
period was opened on May 18, 1998, and closed on July 17, 1998. We 
received comments from eight respondents, whose comments are summarized 
below.
    The written comments and oral statements, questioning or opposing 
the listing of the splittail, or otherwise providing information, 
obtained during the public hearings and comment periods are combined 
into general issues that are summarized, discussed and responded to 
below. Most of the comments supporting the listing did not provide any 
additional information, so we have not prepared a discussion or 
response to these comments.
    Issue 1: A respondent commented that our statement about splittail 
decline was based on data regarding splittail juveniles. The respondent 
argued that adult splittail are abundant and that our reliance on a 
limited portion of the year classes for a listing determination is 
inappropriate.
    Service Response: We have reviewed the seven data sets used in the 
status review (Meng 1993). These data sets include--(1) a fall midwater 
trawl survey in the upper Estuary by CDFG; (2) a monthly midwater and 
otter trawl in the lower Estuary by CDFG (San Francisco Bay-Outflow 
Study, hereafter Bay Study); (3) a monthly otter trawl survey of Suisun 
Marsh (a tidal marsh next to Suisun Bay) by the University of 
California; (4) a midwater trawl survey that we conducted at Chipps 
Island in Suisun Bay; (5) a midwater trawl survey that we conducted in 
the Sacramento River; (6) a beach seine survey that we conducted in the 
Delta and Sacramento River; and (7) fish salvage data collected by CDFG 
and the BOR at the State and Federal pumping facilities located in the 
south Delta. The beach seine survey and Sacramento River midwater trawl 
were not used in the analysis of abundance trends because several years 
of data were missing. (See next comment for criteria used to identify 
data sets suitable for inclusion in abundance trend analysis.) Of the 
surveys that were used to establish abundance trends, ratios of young-
of-the-year to adults were approximately equal for three out of five 
surveys (fall midwater trawl, Bay Study, and Suisun Marsh). Of the 
remaining surveys, the Chipps Island trawl was dominated by young-of-
the-year, and fish salvage sampled five times as many young as adults. 
We calculated percent declines independently for each survey. When the 
two surveys dominated by young-of-the-year are removed from the 
analysis, overall average percent decline remains the same. Therefore, 
the contention that splittail adults are abundant, and that our 
analysis relied on a particular age-class of the species, is unfounded.
    Issue 2: One respondent maintained that the studies we relied on 
were limited geographically (i.e., to the Estuary) and that splittail 
may occupy a wider range. Conversely, another respondent commented that 
the Estuary is the principal habitat of splittail and virtually all 
splittail are found in the Estuary for the first 2 years of their 
lives.

[[Page 5967]]

There was also disagreement about the gear types used for sampling. One 
respondent held that they were not appropriate, whereas another 
respondent stated that gear used by the studies, (i.e., bottom and 
midwater trawls) captured all sizes of splittail. The respondent that 
questioned gear suitability also commented that studies used in the 
listing determination were designed to capture striped bass, were 
limited in their ability to sample shallow and inshore habitats, and 
that the use of the CDFG abundance index was inappropriate.
    Service Response: We used several criteria to determine if a data 
set could be incorporated into the analysis of trends in splittail 
abundance and distribution. Data had to be collected for at least 10 
consecutive years and effort had to be relatively constant or a core 
data set had to be available to extract for analysis. A core data set 
of at least 10 consecutive years provides the necessary information to 
conduct an analysis of long term trends in abundance. One respondent 
referred to the use of two data sets that sampled upstream of the 
Estuary. These data sets were not included in the analysis of abundance 
trends because time of year of sampling varied, sampling sites varied, 
and some years of sampling were missing. These data sets were examined 
however, for trends in distribution, and showed that capture of 
splittail decreased as sampling was conducted further upstream from the 
Estuary. One of the surveys referred to by the respondent consists of 
samples taken upstream of the Delta and catches young-of-the-year 
almost exclusively. Because splittail migrate upriver to spawn in the 
spring (Meng and Moyle 1995), it is likely that these catches are the 
offspring of splittail that reside further downstream for the remainder 
of the year.
    Regarding gear suitability, a respondent suggested that certain 
gear used, especially tow nets and trawls, were not appropriate for 
sampling splittail because of their benthic habits and preference for 
shallow water. The respondent also referred to gillnetting as an 
effective method for capturing splittail.
    We agree that the summer townet survey is inefficient in sampling 
splittail and therefore, was not included in the analysis of abundance. 
However, several trawling methods were included. Meng (1993) compared 
the effectiveness of three types of gear from one survey--bottom 
(otter) trawls, midwater trawls, and beach seines. Bottom and midwater 
trawls sampled equal proportions of all splittail year classes (i.e., 
young-of-the-year, fish 1 year or older, and fish 2 years or older). 
The beach seine was selective for young-of-the-year. High catches of 
young-of-the-year in midwater trawls are thought to reflect movement of 
young out of near shore areas when water recedes. They are frequently 
captured in channels, presumably as they move downstream (Meng and 
Moyle 1995). The information outlined above suggests that regularly 
repeated bottom and midwater trawls are reasonably effective for 
sampling splittail and examining trends through time.
    There are no long-term gillnetting data sets that meet the criteria 
above for inclusion in the analysis of abundance. Furthermore, 
gillnetting results in high fish mortality, and long-term sampling by 
gillnet is not feasible in waters with sensitive species. Almost all 
sampling techniques have biases. For the data used in the abundance 
analysis, the sampling remained constant. Therefore, the biases 
remained constant through time, and there was a consistent downward 
trend in splittail abundance.
    Most of the sampling programs in the Estuary were initiated to 
track changes in striped bass or salmon (Oncorhynchus tshawytscha) 
populations. These long term data sets can be used to assess changes in 
abundance of other species as long as assumptions of sampling design 
are considered. Limitations of surveys designed for striped bass or 
salmon have been consistent through time. Problems with sampling 
shallow and inshore habitats have not changed and should not affect 
relative abundance trends. Therefore, trends or changes in splittail 
abundance reflected by these surveys should be unaffected by the 
various weaknesses identified by the respondent. The high correlation 
between the CDFG abundance index and numbers of fish (83 percent of the 
variability is explained) suggests that the index is a reasonable 
estimator of population trends.
    Issue 3: One respondent commented that three separate data sets, 
including a gillnet survey, suggest that splittail are abundant 
throughout the Delta. Another respondent countered that gillnetting 
surveys cited as evidence of abundance were based on a single night of 
sampling in the American River when splittail were presumably 
concentrated for spawning. This respondent added that the 60 percent 
decline cited in the proposed rule is remarkable because one strong 
year class (such as occurred in 1983) can mask an overall decline in 
this long-lived species.
    Service Response: The Act requires us to base listing 
determinations upon best available scientific and commercial data. The 
three data sets referred to by the respondent are limited temporally 
and geographically. One of the data sets referred to by the respondent 
covers one night of gillnet sampling in one location. The other two 
data sets refer to 2 years of sampling, separated by more than 10 
years, at the Pacific Gas and Electric plant in Antioch. We considered 
all available data but determined that incorporation of sporadic or 
isolated sampling events was not appropriate because of problems 
associated with drawing conclusions from limited or sporadic data.
    Issue 4: A respondent commented that no data were provided to 
support the conclusion that successful reproduction is highly 
correlated with wet years.
    Service Response: Regression analyses of splittail young abundance 
versus spring outflow (February-May) show strong relationships. As 
spring outflow increases, abundance of splittail young increases. 
Changes in spring outflow explained varying percentages of changes in 
abundance of splittail young and ranged from 55 to 72 percent, 
depending on which survey data were analyzed (Meng and Moyle 1995). All 
of the regression analyses were significant (probability values ranged 
from less than 0.0001 to 0.0025) (Meng and Moyle 1995). This is a 
strong correlation between successful reproduction and wet years. The 
low and high abundance indices of juvenile abundance from 1994 and 
1995, respectively, is consistent with this analysis.
    Issue 5: One respondent commented that the data we used to 
determine the decline of splittail was biased by the fact that the time 
period used to determine pre-decline and post-decline was heavily 
weighted with wet years in the pre-decline period, thereby biasing the 
analysis.
    Service Response: We analyzed only wet years to determine if there 
had been a decline within that year type. That analysis indicated that 
even in wet years, when one would anticipate substantially higher 
recruitment, there had been an overall decline in splittail abundance. 
Young-of-the-year abundance declined steadily in the annual Chipps 
Island trawl in wet years from 1978 to 1993. Abundance in 1993 was less 
than 3 percent of what it was in 1978. Abundance per unit effort was 
approximately 12.3 in 1978, 8.1 in 1982, 2.0 in 1983, 1.3 in 1986 and 
less than 0.3 in 1993. This first analysis was done using a catch-per-
tow analysis. The second analysis of splittail abundance using a 
different analytical method that was based on a catch-per-volume of

[[Page 5968]]

water sampled yields a similar result. The volumetric methodology 
yields a catch per unit effort (CPUE) at the Chipps Island trawl site 
of 2.6 in 1978, 0.97 in 1982, 0.77 in 1983, 0.73 in 1986, and 0.21 in 
1993. These two analyses show that there is an overall reduction in 
abundance that is not solely a result of drought conditions. Using the 
second analytical method yields a CPUE for 1995 and 1996 of 2.1 and 
0.63 respectively, which were both wet years. If there were a stable 
number of sexually mature fish throughout the period of decline, one 
would expect similar reproduction in both years. However, there was a 
substantial decline from 1995 to 1996, which may indicate that there 
were not as many adult fish, reflected by the lower CPUE in 1996.
    Issue 6: One respondent commented that there is no evidence to 
support the statement that lower numbers of splittail young-of-the-year 
during the drought may affect the stock's ability to recover.
    Service Response: Our status report (Meng 1993) and the proposed 
rule (59 FR 862) indicated that wet years are required for splittail 
recruitment. However, as previously discussed in the analysis of only 
wet years, young-of-the-year abundance has declined during these years. 
Because splittail live 5 to 7 years and rely on wet years for strong 
year classes, a prolonged drought, such as the recent 6-year drought, 
may provide little recruitment opportunities. The steady decline in 
young-of-the-year abundance in the Chipps Island trawl, combined with a 
5 to 7 year life span and reliance on wet years for strong year 
classes, suggests that lower numbers of splittail young during the 
drought will reduce the number of adult fish in subsequent wet years. 
This overall decline in splittail abundance, even during wet years, may 
affect the ability of the species to recover.
    Issue 7: A respondent commented that the drought, not exports, was 
responsible for the recent decline in splittail abundance indices.
    Service Response: Water exports at the State and Federal pumping 
facilities are not the only threat to the species related to the State 
Water Project and the Central Valley Project. The State and Federal 
water projects are interbasin water delivery systems that include 34 
reservoirs, thousands of miles of aqueducts and canals, and large 
pumping facilities in the south Delta. Storage in reservoirs and 
conveyance components of the projects also have substantial effects on 
the splittail. Outflow conditions that inundate large vegetated areas 
are affected by pumping because increases in pumping must be supported, 
at some point, by increases in diversions to State and Federal 
reservoirs. Most rainfall occurs during winter and spring in 
California, and high spring flows are augmented by snow melt. 
Historically, high spring flows provided flooded areas and shallows for 
fish spawning and rearing. Construction of upstream reservoirs allowed 
large amounts of these high spring flows to be diverted to storage for 
later release. Diversion of water to storage dampens peak spring flows 
beneficial to splittail spawning success and provides water for pumping 
when flows to the Estuary decrease.
    Since 1983, the proportion of water exported from the Delta during 
October through March has been higher than in earlier years (Moyle et 
al. 1992). Changes in timing and amounts of exports, as well as 
operations of upstream water storage facilities, affect fish migration 
and spawning habits. Dampening of peak spring flows by springtime 
diversions to storage to replenish depleted reservoirs has deleterious 
effects on estuarine species such as splittail, which evolved in a 
system with periodic spring flooding.
    As previously discussed, in wet years when fish production is 
generally high, large segments of the juvenile population are 
vulnerable to export facilities both directly and indirectly through 
entrainment and altered Delta hydrology. This vulnerability is 
reflected in wet year abundance indices. The adverse effects of the 
pumps in wet years combined with poor recruitment during dry years 
exacerbates the population demographic outlook for the splittail.
    Issue 8: A respondent commented that calculations in the status 
report were incorrect. This comment targeted a reference in the 
proposed rule regarding the abundance of splittail in the Suisun Bay 
area.
    Service Response: This comment was apparently based on a 
misinterpretation of data included in the status report. The respondent 
incorrectly assumed that the top half of Figure 13 in the status report 
supported statements in the text regarding abundance of splittail in 
Suisun Bay. However, this portion of Figure 13 was intended to indicate 
the approximate locations and effort of the different surveys used for 
the status report. The bottom half of Figure 13 was intended to support 
statements about abundance of splittail in the Suisun Bay area. The 
respondent acknowledged the high catches in Suisun and Grizzly bays 
represented in the bottom of Figure 13. Furthermore, two CDFG surveys 
indicate that abundance of splittail captured by each survey, 
comprising 72 and 56 percent of the catch, respectively, was taken in 
those areas (Meng and Moyle 1995).
    The respondent also stated that values used to construct the top 
half of Figure 13 were incorrect. The respondent recalculated the 
values, but used incomplete data sets (Chipps Island trawl) or 
incorrect data sets (Suisun Marsh). Furthermore, the respondent 
referred to Bay Study beach seine data that were not included in the 
analysis and constructed a table of values without using the 
appropriate scale included on the original figure. The respondent 
stated that adding ratios, as in Figure 13, violates basic laws of 
algebra. However, the figure was not intended to show the sums of 
catches in different areas. The figure was intended to illustrate the 
relative contributions of different surveys in different areas. The top 
half of Figure 13 has been removed from the status report because it 
was confusing and did not contribute to the analysis.
    Issue 9: Two respondents commented that outflow conditions that 
inundate large vegetated areas and result in favorable spawning 
conditions are largely unaffected by diversion and export capabilities 
of the State and Federal water projects.
    Service Response: Evidence offered to support this comment is a 
correlation analysis performed by DWR indicating that there is a 
positive relationship between the number of days that the Yolo and 
Sutter bypasses are flooded and splittail young abundance. The Yolo and 
Sutter bypasses are flood control structures that bypass flows 96 and 
128 km (60 and 79 mi) upstream of the confluence of the Sacramento and 
San Joaquin rivers respectively. Because high outflows and number of 
days the bypasses are flooded are strongly correlated, it is difficult 
to isolate flooding of these specific areas as the most important 
factor influencing splittail abundance. Although flooding of the 
bypasses may result in favorable spawning conditions, young located in 
the bypasses are likely to experience high mortality because they 
become trapped in depressions and agricultural drainage canals when 
water recedes (Jones and Stokes 1993).
    Issue 10: One respondent commented that the effects of entrainment 
on splittail are questionable. The respondent questioned statements in 
the proposed rule that splittail may be more vulnerable to the effects 
of entrainment in water project facilities in dry years. The respondent 
based the argument on strong relationships between splittail abundance 
and losses to project operations.

[[Page 5969]]

    Service Response: An entrainment index was developed (a ratio of 
indices from two surveys, i.e., salvage of entrained fish at water 
project facilities divided by the fall midwater trawl index) that 
demonstrated entrainment of splittail young was higher in wet years. We 
acknowledge that based on the two surveys comprising the entrainment 
index, entrainment of splittail appears to occur in proportion to 
abundance, that is, entrainment is higher in wet years. Because 
splittail abundance relies on high levels of recruitment in wet years, 
taking more splittail in wet years does not remove the threat of 
entrainment in water project facilities from the population. In the 
early 1980s, hundreds of thousands of splittail young were salvaged 
monthly by the State export facility alone (this number has decreased 
as abundance has decreased). Since splittail abundance relies on strong 
year classes in wet years to support the population during poor 
environmental conditions, entrainment of large numbers of young, even 
in proportion to abundance, remains a threat.
    With the exception of the Bay Study, all 1995 indices were less 
than historic wet year indices or, in the case of the Fall-midwater 
Trawl survey, not as high as pre-decline wet-year indices. However, the 
combined CVP/SWP salvage was more than double any previous year's 
salvage index, wet or dry (approximately 8 million young-of-the-year 
fish for the entire year versus less than 4 million young-of-the-year 
fish in 1986, which was the next highest entrainment index on record). 
This suggests that during 1995, the CVP/SWP export facilities in the 
Delta may have actually entrained fish in greater proportion to 
abundance than in past years.
    Issue 11: One respondent questioned the mechanism by which shallow 
water habitat has been lost in recent years. The respondent stated that 
a significant amount of marsh habitat was diked and drained in the 
first part of this century, but relatively little reclamation of 
wetlands occurred within the last decade.
    Service Response: We acknowledge that most wetland losses in the 
Estuary occurred in the first part of this century. The recent loss of 
shallow water habitat in the Estuary is due to increasing salinities in 
Suisun Bay, a shallow area. Suisun Bay was historically fresh to 
brackish much of the year and important for the rearing of Delta 
fishes. Increasing salinities in the Suisun Bay area due to decreases 
in outflow have reduced available shallow water habitat for splittail, 
primarily a freshwater species. Increasing salinities in this area have 
also decreased Neomysis mercedis production, a primary splittail food 
and a factor cited by the respondent as being a possible cause of 
decline.
    Issue 12: One respondent commented that the possible effects of 
predators and competitors deserves greater consideration. The 
respondent referred to three introduced species that have experienced 
population explosions during the same period that splittail declined, 
two gobies and one atherinid, the inland silverside (Menidia 
beryllina).
    Service Response: We acknowledge that the three introduced species 
and the splittail may occupy similar habitats. However, these 
introduced species rarely exceed 8 cm (3.4 in) in length as adults, 
one-fifth the size of splittail. Thus, direct predation by the 
introduced species on splittail is unlikely. It is also unlikely that 
adults of the introduced species consume splittail young because of 
differences in spawning sites, that is, many splittail spawn upstream 
of and in the upper portions of the Estuary. Furthermore, competition 
for food or resources (such as spawning sites) is unlikely and would be 
difficult to extract from the wide array of factors that may affect 
splittail. The introduced species most likely to affect splittail is 
striped bass, which is known to favor splittail for food (see Factor C 
in the ``Summary of Factors Affecting the Species'' section). Splittail 
and striped bass, however, have coexisted for decades in the Estuary. 
Recent declines in splittail have occurred in concert with striped bass 
declines.
    Issue 13: A respondent stated that the reason for our decision not 
to designate critical habitat is not entirely clear from the proposed 
rule. Further, the respondent expressed concern that we provide 
splittail with a level of protection afforded by listing the species as 
threatened pursuant to the Act rather than addressing threats to the 
species in recovery work that is already being undertaken for Delta 
fisheries in general.
    Service Response: We clarify the decision not to designate critical 
habitat in the ``Critical Habitat'' section of this rule. Based on our 
analysis of threats, including the lack of recovery efforts implemented 
and regulatory controls, we determined threatened status for the 
splittail in this rule. The Sacramento San-Joaquin Delta Native Fishes 
Recovery Plan (U.S. Fish and Wildlife Service 1996) discusses threats 
and needed restoration actions in detail.
    Issue 14: One respondent questioned the need to list splittail with 
current protections in place for delta smelt and proposed USEPA water 
quality standards for the Estuary (59 FR 810). The respondent stated 
that increases in water demand for splittail would affect the 
predictability of water supplies for other users.
    Service Response: In determining to list the splittail, we 
considered the effects of the listing of delta smelt and designation of 
critical habitat for the delta smelt (60 FR 4664) as well as 
implementation of the State's Water Quality Control Plan (WQCP). We 
believe that the life history and habitat requirements of splittail 
will not be satisfied by these actions.
    The life history characteristics and habitat usage of splittail 
differ from those of delta smelt. Splittail migrate farther upstream to 
spawn in the Sacramento and San Joaquin rivers and their tributaries 
than do delta smelt. Consequently, protections for this species will 
not overlap completely with those needed for splittail. Splittail also 
differ from the already listed species in their habitat usage. Because 
splittail prefer shallow water, with emergent vegetation, they are 
particularly threatened by reclamation, dredging, and development 
activities in those habitat types. Finally, because splittail are long-
lived and spend much of their lives in the Estuary, contaminants pose a 
greater threat to this species than to delta smelt.
    As described in detail under Factor D of the ``Summary of Factors 
Affecting the Species'' section, water quality objectives developed by 
the SWRCB could benefit splittail. In 1995, the SWRCB adopted a WQCP 
for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (95-1WR, 
May 1995) to protect water quality and to control water resources that 
affect the beneficial uses of the Bay-Delta Estuary. As an interim 
implementation measure, the SWRCB adopted Water Rights Order 95-6, 
which relies on the CVP and SWP to comply with the new standards. The 
flows identified in the water rights decision 95-6 that were 
implemented through section 7 of the Act with the BOR and USEPA were 
intended to benefit splittail as well as delta smelt. These flows would 
provide spawning flows in tributaries as well as habitat and transport 
flows in and through the Delta if the WQCP is fully implemented. 
However, this WQCP has not proven entirely adequate to protect against 
the effects of entrainment both at the CVP/SWP export facilities and 
other agricultural and municipal water diversions. For example, 
operations of the CVP and SWP facilities were altered only slightly for 
a 3-day period of time

[[Page 5970]]

in June of 1995 to reduce the effects of salvage on out-migrating 
juvenile splittail. This action was taken after almost 6 million 
juvenile splittail were entrained and salvaged at the State and Federal 
export facilities in the spring of 1995. Between the middle of April 
and the end of June, over 6.3 million juvenile fish were salvaged at 
these facilities. Based on data that we received from ongoing 
monitoring programs during 1995, the vast majority of the fish were 
probably of San Joaquin River origin, where substantial spawning has 
not occurred in over a decade. The monitoring programs showed little 
juvenile production and out migration from the Sacramento River. Even 
if a population exists upstream of the Delta, State and Federal project 
operations have done little, even in this new regulatory environment, 
to protect against entrainment of those fish. Additionally, exports 
during the out migration period change the behavioral cues and 
hydrology that may affect the ability of juveniles to move out of the 
Delta.
    Moreover, the SWRCB has not completed the development of a long 
term implementation plan for the 1995 WQCP. The SWRCB has prepared a 
draft Environmental Impact Statement that evaluates a range of 
potential alternative actions so that responsibility to meet the water 
quality objectives in the 1995 WQCP can be allocated. The SWRCB is 
currently holding hearings to obtain all necessary information so that 
an implementation plan can be developed. An experimental proposal has 
been developed by stakeholders on the San Joaquin River along with the 
Service and other State and Federal agencies. The proposal, known as 
the Vernalis Adaptive Management Plan (VAMP), would evaluate the 
effects of flow and exports on salmon, along with a barrier at the head 
of Old River, for the next 12 years. It may be accepted by the SWRCB 
and may provide some benefit to splittail, but full evaluation of the 
benefits and impacts to the species will not occur until the experiment 
is complete. We will participate in the implementation of VAMP.
    Issue 15: Several respondents questioned our reliance on the 
entrapment zone (the area of the Estuary where saltwater and freshwater 
meet) and its importance to splittail. Another respondent questioned 
our reliance on changes in salinity and shifts in the distribution of 
splittail upstream concurrent with shifts in the salinity.
    Service Response: We agree that there is little if any correlation 
between splittail abundance and the entrapment zone. However, the 
entrapment zone is an important ecological indicator. It provides an 
area in the estuary that is highly productive. However, when located 
upstream, the mixing zone is not as productive because it is confined 
to deep river channels where the total surface area is smaller, fewer 
shoal areas exist, water currents are swifter and more turbulent, and 
zooplankton productivity is low.
    Issue 16: One respondent commented that we could not support the 
conclusion that all size classes of splittail suffer near total loss at 
the export facilities due to entrainment.
    Service Response: According to salvage facility personnel, juvenile 
splittail may suffer up to 50 percent mortality due to salvage at the 
facilities (Scott Barrow, CDFG, pers. comm. 1995). Other forms of 
mortality exist due to screen efficiency, predation, and impingement 
that are not quantifiable at this time. We have modified the rule 
accordingly.
    Issue 17: Several commenters raised the issue of peer review of the 
data and conclusions. One commenter also stated that there was no 
public access to the data.
    Service Response: The proposed rule to list the splittail was 
published on January 6, 1994, prior to the time that the interagency 
policy on peer review (59 FR 126) was made effective on July 1, 1994. 
Despite this, we sent data used in the proposed rule to Dr. Bruce 
Herbold, USEPA; Dr. Peter Moyle, University of California at Davis; and 
Dr. Larry Brown, U.S. Geological Survey (USGS) for their review. None 
of these reviewers provided written comments concerning the data. 
Additionally, several meetings were held between the Service and CDFG's 
Bay-Delta Division during the comment period to discuss the data and 
methodologies used to establish trends in abundance. The CDFG did not 
disagree with the data used or the methodology used in the analysis.
    As described above, we reopened the comment period twice, once in 
1995 and again in 1998. During the reopened comment period beginning in 
January 1995, we considered a substantive issue that CDFG and others 
raised during the original comment period. The subject of the 
significant scientific disagreement, that resulted in reopening the 
comment period, was whether a resident population of Sacramento 
splittail existed in the upper rivers that was not being detected by 
the current sampling methodologies. The CDFG conducted a study in the 
Fall of 1994 to address this question. The results of the study were 
available in February of 1995 and largely supported our listing. This 
study was conducted by the CDFG under the review of an interagency 
science committee (the Interagency Ecological Program). The re-opening 
of the comment period in 1998 was based, in part, on information in the 
peer-reviewed publication ``Resilience of Splittail in the Sacramento-
San Joaquin Estuary'' (Sommer et al. 1997).
    Moreover, the status report that Meng prepared was peer reviewed 
for its scientific basis. That status report was the basis of an 
article in the Transactions of the American Fisheries Society, which 
was again peer reviewed (Meng L. and P. Moyle, 1995). Additionally, the 
final Sacramento-San Joaquin Delta Native Fishes Recovery Plan (U.S. 
Fish and Wildlife Service 1996) that discussed the status of the 
splittail was subject to public comment and review.
    Although obtaining raw data from various agencies may have been 
delayed due to quality assurance and quality control, all data was 
available between the closing of the first comment period, and during 
both of the reopened comment periods. Although there may be minor 
differences in the final analysis contained in this final rule, these 
differences do not change our conclusion regarding the status of the 
species and the threats to the species.
    Issue 18: The one comment received during the second comment period 
suggests that there may be a resident splittail population upstream of 
the Delta in the upper reaches of the mainstem rivers or their 
tributaries.
    Service Response: We agree that splittail do occur in the upper 
reaches of the Sacramento and San Joaquin rivers in some years. While 
we excluded the beach seine data sets from the analysis of abundance 
(for the reasons stated in our response to Issue 2), we never 
eliminated these, or other data sets, from our analysis of 
distribution. The beach seine sampling collects relatively fewer fish, 
on a catch-per-unit-effort basis, than do the surveys further down the 
Estuary, such as the Chipps Island trawl. This sampling indicates that 
the splittail, although utilizing these upstream areas, are not 
utilizing them in substantial numbers, and certainly not in sufficient 
numbers to constitute a population. The CDFG sponsored a special study 
to try and determine if there were substantial resident populations 
upstream of the Delta in 1994 (Baxter 1994). The results of this study 
indicated that in 1994, the bulk of the population resided in and 
around Suisun Bay, Big Break, and Grizzly Bay, which correlates to the 
distribution of shallow water wetlands throughout this region.

[[Page 5971]]

    Issue 19: Below we summarize comments from several respondents 
concerning the Sommer et al. (1997) paper. The respondents state the 
following reasons for not listing the splittail--(1) The splittail is 
more widely distributed and abundant than previously thought; (2) The 
splittail is a highly fecund, resilient, and long-lived species with 
more than one year class spawning at one time; therefore, it can 
rebound because of its high reproductive capacity; (3) The splittail's 
range has not decreased dramatically; (4) The splittail is able to 
endure drought conditions and rebound in wet years; (5) Splittail are 
robust and can handle stress at the export facilities; and (6) 
Splittail are not at risk from pumping; they are taken in relative 
proportion to their abundance.
    Service Response: Item 1--We disagree with the statement that the 
splittail is more widely distributed and abundant than previously 
thought. However, we have always asserted that in some years splittail 
are found in the upper Sacramento and San Joaquin rivers. During wet 
years, splittail are more widely distributed and may be abundant, due 
to more available spawning habitat. For instance, the wet year of 1995 
enabled splittail to use habitats that are normally unavailable to them 
during normal to dry years. During 1995, the Yolo Bypass provided good 
habitat for spawning splittail and splittail abundance increased. The 
Bypass provided suitable spawning habitat only because it was a wet 
year and the Bypass held water later in the year and for a longer 
duration than is typical. Therefore, when sampling was conducted during 
1995, splittail seemed to be abundant and were found in areas, like the 
Yolo Bypass, that they may not normally be able to use. These managed 
habitats cannot be relied upon during normal or dry years to provide 
spawning habitat unless they are consistently managed for the spawning 
and rearing needs of splittail. During dry years, splittail abundance 
is restricted by the availability of spawning habitat.
    Item 2--We agree that the data demonstrate that splittail are a 
fecund (fertile) species. However, even fecund species can become low 
in abundance due to poor habitat conditions for spawning, which may 
occur during normal or dry years. Young-of-the-year and juvenile 
survivability recruitment is important to the splittail's recovery. 
Even though splittail spawn several thousand eggs, not all will reach 
adulthood. Splittail need good habitat for survivability to spawning 
age.
    Long-lived is a relative term. Compared to an annual species such 
as the delta smelt, splittail, which live for an average of 5 to 10 
years, are long-lived. However, if compared to the green sturgeon, 
which lives to 20 to 40 years of age, the splittail has a short life 
span.
    The term resilience is also a relative term. Due to the larger body 
size, splittail may be more resilient than delta smelt to entrainment 
or impingement, for example, but they are less resilient than larger 
fish such as salmon. We agree with the statement that more than one 
year class of splittail may spawn at one time. However, spawning is not 
always successful. Spawning success is correlated with several factors, 
including wet years, high Delta outflow, and the presence of flooded 
vegetation. If these parameters are not present, then the splittail may 
have low recruitment to the population during that year or years.
    Item 3--We disagree with the statement that the splittail range has 
not decreased dramatically. Historically, splittail were found as far 
north as Redding on the Sacramento River (at the Battle Creek Fish 
Hatchery in Shasta County), as far south as the present-day site of 
Friant Dam on the San Joaquin River, and up the tributaries of the 
Sacramento River as far as the current Oroville Dam site on the Feather 
River and Folsom Dam site on the American River. Splittail were 
captured in southern San Francisco Bay and at the mouth of Coyote Creek 
in Santa Clara County, but they are no longer present there. The 
species is, for the most part, now confined to the Delta, Suisun Bay, 
Suisun Marsh, and the Napa River, reflecting a significant decrease in 
their historical range. Splittail are able to use the Sutter and Yolo 
bypasses only in wet years. In addition, these bypasses are managed 
artificially.
    Item 4--We disagree with the statement that splittail are able to 
endure drought conditions and rebound in wet years. The years 1987 
through 1992 were consecutive dry years and demonstrated low abundance 
indices for splittail. During dry years, splittail abundance is 
restricted by the availability of spawning habitat. However, 1993 was 
an above normal water year and splittail abundance indices remained 
low. During 1993, after the end of the dry and critically dry years of 
1987 through 1992, water was diverted to fill up the reservoirs that 
had been depleted during the drought. Therefore, even though 1993 was 
an above normal year, the additional water was unavailable for the fish 
to use.
    During the wet years of 1982, 1983, 1986, and 1995, splittail 
abundance indices were high for all age classes, as sampled in the fall 
mid-water trawl. During the wet years of 1984, 1996, and 1997, 
splittail indices were low. Therefore, if wet or above normal year 
types were the controlling factor, essential habitat for splittail 
would have been provided and splittail numbers should have been higher 
in 1984, 1996, and 1997. These data show that splittail do not 
necessarily have high abundance indices during all wet years. Even 
though 1984, 1996, and 1997 were wet years, they may not have had the 
appropriate hydrology, water quality, etc., to support a large spawning 
class. The timing and magnitude of flow events are likely significant 
parameters affecting splittail spawning success. Spring flows also have 
to be of adequate duration and timing to provide the fish with flooded 
vegetation for escape cover, foraging areas, etc. Weather patterns are 
too unpredictable to rely on wet years for the recovery of splittail; 
extended periods of drought would result in low reproduction and 
population declines. (Also see the response to Issue 6).
    Item 5--We agree that splittail are a robust fish. They can obtain 
a size of over 40 cm total length. However, even though they are a 
relatively large fish, they are still subject to stress at the water 
export facilities. Eggs and larvae are still subject to entrainment and 
impingement at the facilities. The largest losses at the pumping plants 
occur in wet years when up to millions of splittail young are lost 
during the spring months. Although splittail salvage better than the 
delta smelt, which cannot be salvaged at all, recent problems at the 
export facilities have reduced the salvage of all fish. New species 
such as the exotic mitten crab have recently posed problems at the 
export facilities. Salvage of fish was requested to be stopped until 
the crab problem can be resolved.
    Item 6--We disagree with the comment that splittail are not at risk 
from pumping and that they are taken in proportion to their relative 
abundance. Although it may appear that splittail are able to handle the 
stress of salvage at the export facilities, they may not necessarily 
survive after release. Better studies are needed to determine the 
extent of latent mortality.
    Splittail are more likely to be at risk during pumping, depending 
on the water year and where the fish are distributed during spawning. 
During dry years, splittail are concentrated in the few areas that have 
flooded vegetation that can support spawning. Therefore,

[[Page 5972]]

most of the population may be concentrated in one part of the Delta, 
potentially resulting in more take at the pumps in proportion to the 
amount of fish in the system. Conversely, more splittail are taken at 
the pumps during wet years because there is more habitat available for 
spawning, which may result in more recruitment to that year class. 
Depending on the distribution of spawning, fish may be taken in 
disproportion to their overall abundance.
    Issue 20: Several respondents stated that programs and agreements 
like the Bay/Delta Accord, CALFED (a consortium of State and Federal 
agencies convened to address water issues in California), and VAMP will 
result in recovery of splittail. Therefore, there is no need to list 
the species.
    Service Response: We agree that the threats associated with the 
degradation of the Delta may be lessened by the successful 
implementation of the Bay/Delta Accord, CALFED, Central valley Project 
Improvement Act (CVPIA), and VAMP. However, to date, the results of 
these agreements and programs have not been quantified due to 
subsequent wet years that did not require regulatory intervention for 
delivery of water for fish species. At this time, it cannot be 
determined whether these actions have been implemented to an extent 
that will prevent the splittail from becoming endangered within the 
foreseeable future.
    Issue 21: A respondent stated that we failed to comply with the 
Regulatory Flexibility Act and Executive Order 12630.
    Service Response: The Endangered Species Act requires that listing 
decisions be made solely on the basis of biological information. The 
legislative history to the Endangered Species Act amendments of 1982 
states:
    ``The Committee of Conference * * * adopted the House language 
which requires the Secretary to base determinations regarding the 
listing or delisting of species `solely' on the basis of the best 
scientific and commercial data available to him. As noted in the House 
Report, economic considerations have no relevance to determinations 
regarding the status of species and the economic analysis requirements 
of Executive Order 12291, and such statutes as the Regulatory 
Flexibility Act and the Paperwork Reduction Act, will not apply to any 
phase of the listing process.'' (H.R. Conf. Rep. No. 567, 97th Cong., 
2d Sess. 12, 19-20 (1982); S. Rep. No. 418, 97th Cong., 2d Sess. 4 
(1982)).
    In consultation with our Solicitor's Office, we have concluded that 
the analyses required by the Regulatory Flexibility Act are not 
applicable to listing determinations.
    Regarding Executive Order 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights, the 
Attorney General has issued guidelines to the Department of Interior 
(DOI) on implementation of this Executive Order. Under these 
guidelines, a special rule applies when an agency within the DOI is 
required by law to act without exercising its usual discretion--that 
is, to act solely upon specified criteria that leave the agency no 
discretion.
    In this rulemaking context, we might be subject to legal challenge 
if we considered or acted upon economic data. In these cases, the 
Attorney General's guidelines state that Takings Implications 
Assessments (TIAs) shall be prepared after, rather than before, the 
agency makes the decision upon which its discretion is restricted. The 
purpose of TIAs in these special circumstances is to inform policy 
makers of areas where unavoidable fifth amendment taking exposures 
might exist. Such TIAs shall not be considered in the making of 
administrative decisions that must, by law, be made without regard to 
their economic impact.
    As described above, Congress required us to list species based 
solely upon scientific and commercial data indicating whether or not 
they are in danger of extinction. The Act does not allow us to withhold 
a listing based on concerns regarding economic impact. The provisions 
of the guidelines relating to nondiscretionary actions clearly are 
applicable to the determination of threatened status for the Sacramento 
splittail.

Summary of Factors Affecting the Species

    After thorough review and consideration of all the best scientific 
and commercial information available, we have determined that the 
Sacramento splittail should be classified as a threatened species. 
Procedures found at section 4 of the Act and regulations implementing 
the listing provisions of the Act (50 CFR part 424) were followed. A 
species may be determined to be endangered or threatened because of one 
or more of the five factors described in section 4(a)(1). These factors 
and their application to the Sacramento splittail (Pogonichthys 
macrolepidotus) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The Sacramento splittail, once 
widely distributed in the Central Valley of California from Redding to 
the modern-day site of Friant Dam near Fresno, is now primarily 
restricted to the Estuary due to dams, diversions, dredging, and the 
diking and filling of historic flood basins. Within this constricted 
range, splittail have declined by about 62 percent since 1984. However, 
overall percentage decline over its historical range is much greater. 
Populations have fluctuated somewhat in the past, with most recruitment 
taking place in wet years. In wet years since 1978, however, splittail 
recruitment has declined consistently with catch-per-unit-effort of 
12.3, 8.1, 2.0, 1.3, and 0.3 for 1978, 1982, 1983, 1986, and 1993, 
respectively. The updated data from CDFG demonstrate the same decline 
by wet years, with 37.3, 15.5, 8.9, 7.3, and 0.6 in 1993. Other wet 
year data include 1995, 1996, and 1997. These indices are 44.5, 2.1, 
and 2.6, respectively. However, as stated before, 1995 was a very wet 
year and there was suitable spawning habitat for splittail in the 
Estuary. The 1995 data point does not represent a reversal in the 
decline of the species. Splittail declines are highest (82 percent/83 
percent with updated data) in the shallow water Suisun Bay area, the 
center of its distribution. Therefore, as stated above, wet years are 
not always indicative of high abundance indices. However, the current 
data do not indicate a change in this trend.
    Delta water diversions and exports currently total about 9 million 
acre-feet per year, but plans now being prepared could increase exports 
and diversions in the future. The Federal and State water projects 
presently export about 6 million acre-feet per year from the Delta when 
sufficient water is available, and in-Delta agricultural uses result in 
diversion of about 3 million additional acre-feet per year. We know of 
21 major Central Valley Project, State Water Project, or private 
organization proposals that would result in increased water exports 
from the Delta, reduced water inflow to the Delta, changes in timing 
and volume of Delta inflow, or increases in heavy metal contamination 
of the Delta. These proposed projects or actions include but are not 
limited to revisions to the Central Valley Project Operations Criteria 
and Plan, Los Banos Grandes Reservoir, Los Vaqueros Reservoir, South 
Delta Water Management Program, North Delta Water Management Project, 
West Delta Water Management Project, Delta Wetlands Corporation Water 
Storage Project, Folsom Dam Reoperation, Oroville Dam Reoperation, 
Auburn Dam, Central Valley Project contract renewals and amendments 
such as those on the American River that include the

[[Page 5973]]

Sacramento County water contracts, East Bay Municipal Utilities 
District water contract, as well as other increases in diversions 
resulting from the American River Water Forum process. Other water 
contracts renewals include the Solano County Water District. Contra 
Costa Water District is currently proposing to increase their 
diversions for future water supply. The Central Valley Project and 
State Water Project wheeling purchase agreement, reactivation of the 
San Luis Drain, Stanislaus-Calaveras River Basin Water Use Program, 
Suisun Marsh Project Phase Three and Four, Federal Water Project change 
in diversion point, and State Water Project Pump additions. All of 
these projects would impact the habitat of the splittail.
    Changes in water diversions are most likely at the State Water 
Project. For the most part, the Federal pumping plant has operated at 
capacity for many years (pumping at rates up to 4,600 cubic feet per 
second (cfs)), so increased exports at this plant are unlikely. 
However, the State Water Project pumping plant and capacity of the 
State Aqueduct have considerable unused capacity. The State Water 
Project currently pumps at rates up to 6,400 cfs and plans to increase 
pumping rates by more than 50 percent. Local private diverters are 
relatively stable and export up to 5,000 cfs from about 1,800 
diversions scattered throughout the Delta. The DWR (1992) reported past 
and projected State Water Project deliveries from Delta sources during 
the years of 1962 to 2035. In the 1980s, deliveries ranged from 1.5 
million acre-feet to 2.8 million acre-feet. By 2010, deliveries of up 
to 4.2 million acre-feet are planned.
    Since 1983, the proportion of water exported from the Delta during 
October through March has been higher than in earlier years (Moyle et 
al. 1992). Changes in timing and amounts of exports affect fish 
migration and spawning habits, as well as operations of upstream water 
storage facilities. Dampening of peak spring flows by springtime 
diversions to storage facilities to replenish depleted reservoirs has 
deleterious effects on estuarine species such as the splittail, which 
have evolved in a system with periodic spring flooding.
    Federal and State water diversion projects in the southern Delta 
export, by absolute volume, mostly Sacramento River water with some San 
Joaquin River water. During periods of high export pumping and low to 
moderate river flows, reaches of the San Joaquin River reverse 
direction and flow upstream to the pumping plants located in the 
southern Delta. When total diversion rates are high relative to Delta 
outflow, the lower San Joaquin River and other channels have a net 
upstream (i.e., reverse or negative) flow. Out-migrating larval and 
juvenile fish of many species become disoriented due to reverse flows. 
Fish, including Sacramento splittail, delta smelt, longfin smelt 
(Spirinchus thaleichthys), and all runs of salmon and steelhead are 
lost at pumps and to predation at various water facilities and other 
diversion sites. Because data from State and Federal pumping facilities 
indicate that splittail migrate upstream to spawn, positive outflows 
are also important to transport splittail young downstream (Meng 1993).
    In recent years, the number of days of reversed San Joaquin River 
flow have increased (Moyle et al. 1992), particularly during the 
February-June spawning months for splittail. Reverse flows in the San 
Joaquin River may transport more splittail young towards pumping 
facilities in the south Delta where the splittail are entrained by 
pumps and diversions. The survival rate of splittail salvaged from 
entrainment is unknown. However, salvage operations have been shown to 
result in 50 percent losses of salvaged fish (Scott Barrow, DFG, pers. 
comm. 1995) (see factors C and E of this section for more discussion 
about entrainment and salvage).
    With full implementation of the WQCP for the Sacramento-San Joaquin 
Estuary (described below) we anticipate an overall reduction of the 
number of days of reverse flow in the lower San Joaquin River during 
the spring period. Pumping will shift from the spring period to later 
in the year. This pumping will likely have to be supported by reservoir 
withdrawals. Reservoir releases in the spring may not be as frequent 
depending on how much space is available in the reservoirs carried over 
from the previous year. Increasing demand will also require more 
support from reservoirs for export, which will alter the flow patterns. 
Changes in reservoir operations and ramping rates for flood control may 
affect shallow water spawning habitat along river corridors and 
exacerbate stranding of splittail.
    Estuaries are ecosystems where the mixing zone and salinity levels 
are determined by interaction of river outflow and tidal action. 
Splittail are most abundant in the shallow water of Suisun Bay, which 
is historically associated with the entrapment zone. The young of this 
species require high zooplankton densities, which are common in the 
entrapment zone. Production of zooplankton increases when the 
entrapment zone occupies a large geographic area with extensive shoal 
regions within the euphotic zone (depths less than 4 meters), such as 
Suisun and Grizzly bays. Fall mid-water trawl survey data collected by 
CDFG indicate that 72 percent of the splittail captured from 1967 to 
1992 in the Estuary were taken in the shallow water areas of Suisun and 
Grizzly bays (Meng 1993).
    During periods of drought and increased water diversions, the 
entrapment zone and associated fish populations are shifted farther 
upstream in the Estuary. During years prior to 1984, the entrapment 
zone was located in Suisun Bay from October through March (except in 
months with exceptionally high outflows or during years of extreme 
drought). From April through September, the entrapment zone usually was 
located upstream in the river channels. Since 1984, with the exception 
of the record 1986 flood outflows, the entrapment zone has been located 
primarily in the river channels during the entire year because of 
drought and increased water exports and diversions. When located 
upstream, the entrapment zone is confined to deep river channels where 
the total surface area is smaller, fewer shoal areas exist, water 
currents are swifter and more turbulent, and zooplankton productivity 
is low. In all respects, the upstream river channels are much less 
favorable for rearing of splittail. Splittail declines since 1984 have 
been concurrent with an increasing amount and proportion of freshwater 
diversions that confine the mixing zone to narrow, deep, and less 
productive channels in the lower rivers.
    Recent research indicates that splittail will use the Yolo and 
Sutter bypasses during the winter and spring months for foraging and 
spawning (Sommer et al. 1997). The bypasses are two extensive 
floodplain areas used for flood control, agriculture, and wildlife 
habitat. The bypasses serve as a control outlet for the Sacramento 
River, which historically flooded large areas of the adjacent valley 
during high water events in the winter and spring. The water from the 
Sacramento River is diverted to the bypasses through a passive system 
of weirs. Water enters the Yolo Bypass from the Sacramento River via 
the Fremont and Sacramento Weirs. The Sutter Bypass is inundated 
through the Tisdale Weir.
    In 1995, the bypasses provided good habitat for fish, particularly 
splittail because it was an extremely wet year and the bypasses were 
flooded for several weeks in March and April. However, the bypasses do 
not get flooded at all in dry and critically dry years. Therefore, 
during those years,

[[Page 5974]]

when splittail would need the habitat the most, it is not provided by 
the bypasses.
    The Yolo Bypass is inundated whenever the Sacramento River stage at 
Fremont Weir exceeds 33.5 feet. About 3/4 of the years going back to 
the mid-1930s have had overflows into the Yolo Bypass. Even though the 
water was high enough to overtop the Fremont Weir, the water may not 
have stayed on the Bypass consistently nor long enough to benefit 
splittail.
    Under current water management practices, the bypasses cannot be 
relied upon throughout any given spawning season to provide habitat for 
splittail. As mentioned above, water is placed onto the bypasses by 
overtopping of weirs along the Sacramento River. The flooding of the 
bypasses is sporadic at best. The volume of water varies from year to 
year as well as does the time of year when the bypasses are inundated. 
The water may be placed intermittently on the bypasses, depending on 
how much rainfall occurs at any given time. For instance, water has 
been placed onto the Yolo Bypass as early as December and has remained 
on the Bypass as late as May. Water has also been placed on the Bypass 
for a short time and drained off. The water could be drained off at 
some point during the season and then with more heavy rainfall, the 
bypasses could become flooded again. Therefore, these systems would not 
provide suitable spawning habitat consistently for splittail. Also, the 
bypasses do not drain at consistent levels. There are pockets and holes 
that form which may trap and strand fish as the water drains. During 
some years, the bypasses do not have enough water or retain water long 
enough to allow fish to enter the bypasses, spawn, and then grow to a 
size that will allow them to out-migrate. The artificial systems of the 
Yolo and Sutter bypasses, as currently managed, cannot be relied upon 
to recover the splittail. The bypasses provide accessible and suitable 
splittail spawning habitat only during wet years where the water 
consistently remains on the bypasses for an extended period of time, as 
in 1995.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization is not known to be a factor 
affecting this species. Some scientific collecting is conducted for 
splittail but these activities do not adversely affect this species. 
Striped bass anglers report occasional use of splittail as bait, but 
this usage is thought to have little effect on the species. A small 
fishery for splittail used to exist in the Sacramento River (Daniels 
and Moyle 1983, Caywood 1974). However, no recent records of splittail 
harvest exist, probably because little or no harvest now occurs due to 
its declines. Records of splittail harvest are also sketchy because 
identification of this species is often confused with other nongame 
species. No other recreational or educational uses of this species 
exist that may affect its abundance.
    C. Disease or predation. Predation is thought to be a relatively 
minor factor affecting the Sacramento splittail, especially compared to 
the other factors discussed in this final rule. Striped bass and other 
predatory fish are attracted to concentrated prey at fish salvage 
release sites, such as occur at Clifton Court Forebay. The salvaged 
fish, including splittail, are collected from holding wells of the 
salvage facilities, placed in the salvage trucks, transported to the 
release sites, and deposited in bulk from a pipe running from the truck 
to a near-shore area, thus resulting in predator attraction. Fifty 
percent of the released fish are lost (Scott Barrow, CDFG, pers. comm. 
1995). These losses are largely due to attraction of predatory fish to 
the release site of the salvage operations. Splittail and striped bass, 
however, coexisted for decades in the Estuary and recent declines in 
splittail have occurred in conjunction with striped bass population 
declines. Increases in striped bass populations could threaten reduced 
numbers of splittail. Recently, the CDFG has foregone striped bass 
stocking or modified their striped bass management because of potential 
harm to federally listed Sacramento River winter-run chinook salmon and 
delta smelt.
    Susceptibility to disease, due to poor water quality, may be a 
factor in the decline of splittail. Workers at State and Federal water 
project facilities in the south Delta have reported high incidences of 
adult splittail in poor health. The south Delta is dominated by San 
Joaquin River flow, a large part of which is made up of agricultural 
drainage. Pesticides (e.g., chlorpyrifos, carbofuran, and diazinon), 
salts (e.g., sulfates, selenium), and total dissolved solids from this 
drainage are concentrated by reverse San Joaquin River flows and result 
in poor water quality (Dennis Westcot, Central Valley Regional Water 
Quality Control Board, pers. comm.).
    D. The inadequacy of existing regulatory mechanisms. Regulatory 
mechanisms currently in effect do not adequately protect the splittail 
or its habitat. This species is not listed by the State of California.
    We are analyzing the potential effects on splittail and other fish 
and wildlife resources in California as a result of enactment of the 
CVPIA (Pub. L. 102-575) under the National Environmental Policy Act 
(NEPA) and the Programmatic Environmental Impact Statement currently 
under development. The CVPIA may benefit the splittail, but does not 
adequately protect the species at this time. Two of the stated purposes 
of the CVPIA are to ``protect, restore, and enhance fish, wildlife, and 
associated habitats in the Central Valley and Trinity River basins of 
California'' and ``to contribute to the State of California's interim 
and long term efforts to protect the San Francisco Bay-Sacramento-San 
Joaquin Delta Estuary.'' Section 3406(b)(2) dedicates 800,000 acre-feet 
of Central Valley Project yield annually to implement fish, wildlife, 
and habitat restoration, and to help federally listed species. The 
800,000 acre-feet identified in the CVPIA may be used to meet the DOI's 
obligations under the Bay-Delta Accord (discussed below). The rest of 
the water can be used for instream flows, additional Delta outflow, and 
the other purposes of the CVPIA. Because of the multiple purposes of 
the CVPIA, flows may be provided at times of the year that may not 
benefit splittail, such as spawning flows in the fall for salmon. 
Additionally, because of the need to balance these flows for all uses 
under the CVPIA, certain spring flows may be less than what is fully 
needed for spring spawning of splittail. We anticipate that splittail 
will benefit from implementation of the CVPIA, although the magnitude 
and timeliness of these protections may be inadequate to prevent 
further decline of splittail. On November 20, 1997, the DOI announced 
its decision regarding use of the 800,000 acre-feet of water identified 
in the CVPIA. The decision is to be implemented for the next 5 years 
and involves not only upstream actions but also actions in the Delta 
which may benefit splittail. However, since the Central Valley Project 
represents only a portion of the water development projects in the 
Central Valley, the CVPIA is likely insufficient to fully protect 
splittail at this time.
    Protective measures currently being implemented to benefit the 
delta smelt may benefit the splittail, such as restrictions on pumping 
under certain conditions. However, the ecological requirements of these 
species differ, especially with respect to timing of important 
development stages and habitat uses. Unlike delta smelt, splittail 
require flooded lowland habitat for spawning and are particularly 
vulnerable to disturbance or destruction of marshy habitat.

[[Page 5975]]

    The Suisun Bay area, including Suisun Marsh, is the best known 
habitat for splittail, but this habitat has been adversely altered by 
higher salinities in the spring. These higher salinities are caused by 
operations of reservoirs that divert water to storage as well as 
exports from the Delta that allow seawater to intrude farther upstream 
in Suisun Marsh. Prior to the Bay-Delta Accord/WQCP, there were 
relatively few periods when freshwater outflows of any significance 
were mandated to be released through the Delta and Suisun Bay for 
wildlife or fisheries. State and Federal agencies had planned to 
increase 1991 and 1992 water supplies for out-of-stream uses at the 
expense of environmental protection of estuarine fish and wildlife 
resources in the fifth and potentially sixth years of drought (Morat 
1991). Because of significantly higher than normal precipitation and 
subsequent higher instream flows after March 1991, a State agency 
request for relaxation of Delta water quality standards was withdrawn.
    Subsequently, on December 15, 1994, the Federal government, the 
State of California, and urban, agricultural and environmental 
interests agreed to the Principles for Agreement on a comprehensive, 
coordinated package of actions designed to provide interim protection 
to the San Francisco Bay and Sacramento-San Joaquin River Delta 
Estuary. That agreement is referred to as the 1994 Bay-Delta Accord 
(Accord). The Accord was recently extended to December 15, 1999. The 
Accord established parameters to protect the beneficial uses of the 
Bay-Delta Estuary. Among these beneficial uses are objectives to ensure 
adequate Delta outflow for the maintenance of suitable habitat for 
various life stages of aquatic organisms and objectives for export 
limits to protect the habitat of estuarine-dependent species and reduce 
their entrainment at the major export pumps in the southern Delta.
    The X2 standard provides outflows to maintain low salinity (2 parts 
per thousand) habitat at three distinct areas in the Bay-Delta: 1) the 
confluence of the Sacramento and San Joaquin rivers, 2) Chipps Island, 
and 3) Roe Island. Compliance of this standard will provide variability 
for aquatic organisms and aid in their recovery. The E/I ratio 
establishes a combined export rate (Clifton Court Forebay inflow plus 
export at the Tracy Pumping Plant) based on the best available estimate 
of the Eight River Index. When the estimate of the Eight River Index is 
ultimately made, the export facilities may then pump a set percentage 
of Delta inflow. Although these parameters will likely protect fish and 
wildlife, they have not been adequately tested over the past 4 years 
due to the extreme wet conditions.
    Present regulatory processes do not ensure that water inflows to 
Suisun Bay and the western Estuary will be adequate to maintain the 
mixing zone near or in Suisun Bay to benefit splittail. The SWRCB has 
the authority to condition or require changes in the amount of water 
inflow and the amount of water exported or diverted from the Delta. In 
testimony given before the SWRCB's Water Quality/Water Rights Hearings 
in 1987, one of our biologists expressed concern for several Delta 
species, including splittail (Lorentzen 1987). The SWRCB did not take 
regulatory or legal action to protect this fish or its habitat during 
the following 4 years. On May 1, 1991, the SWRCB adopted the WQCP for 
Salinity for the San Francisco Bay-Sacramento-San Joaquin Delta Estuary 
(1991 Bay/Delta Plan). On September 3, 1991, under provisions of the 
Clean Water Act, the USEPA disapproved certain water quality standards 
due to the SWRCB's failure to adopt criteria to protect estuarine 
habitat. In April 1992, the Governor of California announced a new 
water policy that included a directive to the SWRCB to establish 
``interim measures'' to reverse the decline of fishes in the Bay and 
Delta. Accordingly, the SWRCB released an interim water quality plan 
(Draft Decision 1630) in December 1992 that immediately was suspended 
by the Governor. In 1993, the USEPA began the process of forming 
replacement standards for those portions of the 1991 Bay/Delta Plan 
that were disapproved.
    Before USEPA's final rule on Water Quality Standards for Surface 
Waters of the Sacramento River, San Joaquin River, and San Francisco 
Bay and Delta became effective on December 14, 1994, and as a result of 
Bay-Delta Accord that was signed on December 15, 1994, the SWRCB issued 
and adopted Water Rights Order 95-6. The protections contained in this 
Water Rights Order were determined to be roughly equivalent to the 
protections in USEPA's final rule on water quality standards, and 
USEPA's rule was withdrawn. Although the SWRCB has issued a draft 
Environmental Impact Report (EIR), no long term implementation plan has 
been developed or actually implemented for the new water quality plan. 
Substantial opposition exists to certain implementation measures 
identified in EIR. Institutional guarantees of compliance have been 
lacking in the past and are needed in the future before existing 
mechanisms can contribute to protection of this species. Records show 
that the previous salinity standards contained in the SWRCB's Water 
Rights Decision 1485 were inconsistently implemented and frequently 
violated.
    Among other things, the Bay-Delta Accord was intended to provide 
for increased flexibility in the water project operations to respond to 
ecological needs. Appropriate use of this increased flexibility may 
have demonstrated that the established regulatory mechanisms were 
sufficient to protect splittail. However, even though splittail were 
proposed for listing before the Bay-Delta Accord was signed, water 
project operations have rarely been changed to provide protection for 
splittail. In 1995, for example, a wet year that afforded opportunities 
to significantly reverse the decline of splittail while maintaining 
water supply, more than 6.3 million juvenile splittail were entrained 
at the CVP and SWP facilities in 2 months from late April to late June. 
Of these fish, at least 50 percent were lost due to transport and 
release. Predation in Clifton Court Forebay, inefficiency in screening 
fish from diversion facilities, and handling most likely increased this 
percentage. Despite the availability of the mechanism for increased 
flexibility in project operations provided by the Bay-Delta Accord, 
operations of the CVP and SWP were changed for only one 3-day period in 
late June of 1995 to minimize entrainment of splittail. Thus, an 
opportunity to significantly increase abundance and distribution of 
splittail, and the opportunity to reverse the decline of the species 
was lost.
    As a direct result of a Framework Agreement, the Federal and State 
governments established the CALFED Bay-Delta Program (Program). This 
Program is a cooperative effort of the DOI, the U.S. Department of 
Commerce, the USEPA, the California Environmental Protection Agency, 
and the California Resources Agency, with the involved public formally 
participating through the Bay-Delta Advisory Council. The mission of 
the Program is to develop a long term comprehensive plan that will 
restore ecological health and improve water management for all 
beneficial uses of the Bay-Delta system. The plan will specifically 
address fish and wildlife protection, water supply reliability, levee 
stability, and water quality issues in the Delta. We are an active 
participant in the Program and we believe that the eventual 
implementation of the plan will contribute to the protection and 
recovery of the Sacramento splittail. However, the plan is not yet 
developed;

[[Page 5976]]

we cannot evaluate specific conservation measures until they have been 
identified, described, and committed to in an approved final plan.
    As a result of the Bay-Delta Accord, a program was established to 
implement non-flow related actions to benefit fish and wildlife 
resources. This program is known as Category III. The Category III 
program is funded by Federal, State, and non-governmental organizations 
and was funded with $60 million annually for the first 3 years of the 
Bay-Delta Accord. There was approximately $10 million dollars funded in 
the first year by the Metropolitan Water District (MWD). The MWD 
contributed the same amount in the second year, with approximately $2-4 
million contributed by other water districts and agencies. In November 
1996, California voters passed Proposition 204, which provided State 
funds for the Category III activities as well as other CALFED 
activities. In 1997 the Federal government passed an $85 million 
appropriation for Category III activities and CALFED functions. In the 
Fall of 1997, CALFED awarded $60.6 million dollars toward proposals 
under the Category III program. Some of these proposals will benefit 
splittail through habitat enhancement or restoration. Some of these 
projects have been implemented. However, due to the time frame required 
to see if the project has met its objective, that is, to provide 
suitable spawning habitat for splittail, we cannot determine if these 
projects will be successful. However, because Category III projects are 
not intended to enhance flow conditions in the Delta or its 
tributaries, it cannot provide needed flows.
    E. Other natural or manmade factors affecting its continued 
existence. Splittail are vulnerable to natural events, such as drought, 
because of the consistent decline in population indices and severely 
constricted range and distribution. Drought will reduce the available 
spawning area for the splittail because of reduced instream flows. 
Because the range is already restricted and the population has 
declined, a prolonged natural event such as drought (compounded by 
exports and diversions described in Factor A) could endanger the 
splittail.
    Unscreened or inefficiently screened municipal, agricultural, and 
industrial water diversions and other water facilities are a 
significant problem for the splittail. It is estimated that there are 
currently over 1800 unscreened diversions in the Delta. Screens are 
currently designed for striped bass and salmonids. Approach velocities 
and mesh sizes are therefore not appropriate for splittail. Behavioral 
barriers (louver screens) at the State and Federal salvage facilities 
that were designed using striped bass and salmonid criteria, also are 
not appropriate for splittail. Release sites for salvaged fish attract 
predators, likely resulting in low survivorship overall (Lloyd Hess, 
BOR, pers. comm. 1995). Also, it is likely that few young survive 
salvaging at the Federal and State pumping plants because juveniles of 
most fish species are more delicate than adults.
    Poor water quality also may adversely affect splittail, through 
direct exposure to toxins, which increases vulnerability to disease as 
described above in Factor C, and depletion of zooplankton and 
invertebrate food sources. All major rivers that are tributary to the 
Estuary are exposed to large volumes of agricultural and industrial 
chemicals that are applied in the Central Valley watershed (Nichols et 
al. 1986). Agricultural chemicals and their residues, as well as 
chemicals originating in urban runoff, find their way into the rivers 
and Estuary. Approximately 10 percent of the total pesticide use in the 
United States occurs in the Sacramento and San Joaquin River watersheds 
(Kuivila and Foe 1995). Recently, high concentrations of 
organophosphate and carbamate pesticides from agricultural uses have 
been documented entering the Estuary. These pesticides are acutely and 
chronically toxic to zooplankton and fishes as far west as Martinez in 
Suisun Bay and as far south as Vernalis on the San Joaquin River (Foe 
1995, Bailey et al. unknown date). The periods of pesticide use 
coincide with the timing of migration, spawning, and early development 
of splittail. During rainfall runoff events, acutely toxic pulses of 
pesticides move down the rivers and through the Estuary with remarkable 
persistence and relatively little dilution (Kuivila and Foe 1995).
    Toxicology studies of rice field irrigation drain water of the 
Colusa Basin Drainage Canal have documented significant toxicity of 
drain water to striped bass embryos and larvae, Oryzias latipes larvae 
(in the Cyprinodontidae family), and opossum shrimp, which is the major 
food organism of striped bass larvae and juveniles (Bailey et al. 
1991), as well as all age classes of splittail. This drainage canal 
flows into the Sacramento River just north of the City of Sacramento. 
The majority of drain water samples collected during April and May 1990 
were acutely toxic to striped bass larvae (96-hour exposures); this was 
the third consecutive year rice irrigation drain water from the Colusa 
Basin was acutely toxic (Bailey et al. 1991). Splittail may be 
similarly affected by agricultural and industrial chemical runoff, 
particularly because, like striped bass, adults migrate upriver to 
spawn and young rear upriver until waters recede in late spring.
    Some heavy metal contaminants have been released into the Estuary 
from industrial, urban, and mining enterprises. While the effects of 
these contaminating compounds on splittail larvae and their zooplankton 
food resources are not well known, the compounds could adversely affect 
survival. In addition, increases in urban development in the Sacramento 
Valley will continue to result in concurrent increases in urban runoff. 
Selenium has been found in aquatic organisms (Saiki and Lowe 1987, 
Henderson et al. 1995) and fish species in the San Joaquin River 
watershed (Nakamoto and Hassler 1992). Selenium has been shown to cause 
reproductive failure, developmental defects, and mortality of fish 
species (Hermanutz 1992, Skorupa et al. 1996).
    In recent years, untreated discharges of ship ballast water has 
introduced exotic aquatic species to the Estuary ecosystem (Carlton et 
al. 1990). Several exotic species may adversely affect the splittail. 
An Asian clam (Potamocorbula amurensis), introduced as veliger larvae 
in 1986, was first discovered in Suisun Bay during October 1986. By 
June 1987, the Asian clam was widespread in Suisun, San Pablo, and San 
Francisco bays irrespective of salinity, water depth, and sediment type 
at densities greater than 10,000 individuals per square meter. Asian 
clam densities declined to 4,000 individuals per square meter as the 
population aged during the year (Carlton et al. 1990). Persistently low 
river outflow and concomitant elevated salinity levels may have 
contributed to this species' population explosion (Carlton et al. 
1990). The Asian clam could potentially play an important role in 
affecting the phytoplankton dynamics in the Estuary. The clam may have 
an effect on higher trophic levels by decreasing phytoplankton biomass.
    The Chinese mitten crab (Eriocheir sinensis), has also been 
recently introduced to the Delta, either by deliberate release to 
establish a fishery or through accidental release via ballast water. 
The Chinese mitten crab has interfered with the ability to effectively 
salvage fish at the export facilities by clogging the internal piping.
    Historically, Eurytemora affinis, the native euryhaline copepod, 
has been the most important food for larval fishes in the Estuary. 
Three non-native species of euryhaline copepods (Sinocalanus

[[Page 5977]]

doerrii, Pseudodiaptomus forbesi, and P. marinus) became established in 
the Delta between 1978 and 1987 (Carlton et al. 1990), while E. affinis 
populations have declined since 1980. It is not known if the exotic 
species have displaced E. affinis or whether changes in the estuarine 
ecosystem now favor S. doerrii and the two Pseudodiaptomus species 
(Moyle et al. 1989). Sinocalanus doerrii is difficult for larval fishes 
to catch because of its fast swimming and effective escape response 
(Meng and Orsi 1991). Reduced feeding efficiency and ingestion rates 
weaken and slow the growth of splittail young and make them more 
vulnerable to starvation or predation.
    We have carefully assessed the best scientific and commercial 
information available regarding past, present, and future threats faced 
by this species in this listing determination. Sacramento splittail 
have declined by 62 percent over the last 15 years. This species has 
been effectively extirpated from the majority of its range and is now 
vulnerable to numerous threats in the Estuary as discussed above. 
Because Sacramento splittail are long-lived, their decline has been 
gradual, and extinction is not imminent, listing the splittail as 
endangered would not be appropriate. Although this species is not in 
imminent danger of extinction, it is likely to become endangered in the 
foreseeable future if present threats and current population trends 
continue. Therefore, based on the evaluation of all available 
information on abundance, present distribution, and threats to this 
species, we have determined that listing the Sacramento splittail as 
threatened is appropriate at this time. Critical habitat is not 
designated for reasons discussed in the ``Critical Habitat'' section of 
this rule.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with section 4 of the Act, on which 
are found those physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection and; (ii) specific areas 
outside the geographical area occupied by a species at the time it is 
listed, upon determination that such areas are essential for the 
conservation of the species. ``Conservation'' as defined in section 
3(3) of the Act means the use of all methods and procedures needed to 
bring the species to the point at which listing under the Act is no 
longer necessary.
    Section 4(a)(3) of the Act, and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
the Secretary designate critical habitat at the time the species is 
listed. The regulations (50 CFR 424.12(a)(1)) state that designation of 
critical habitat is not prudent when one or both of the following 
situations exist--(1) the species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species. 
We have determined that designation of critical habitat for the 
Sacramento splittail is not prudent.
    Critical habitat receives consideration under section 7 of the Act. 
Section 7(a)(2) requires Federal agencies to consult with the Service 
to ensure that any action they carry out, authorize, or fund does not 
jeopardize the continued existence of a federally listed species or 
destroy or adversely modify designated critical habitat. The Service's 
implementing regulations (50 CFR part 402) define ``jeopardize the 
continuing existence of'' and ``destruction or adverse modification 
of'' in very similar terms. To jeopardize the continuing existence of a 
species means to engage in an action ``that reasonably would be 
expected, directly or indirectly, to reduce appreciably the likelihood 
of both the survival and recovery of a listed species by reducing the 
reproduction, numbers, or distribution of that species.'' Destruction 
or adverse modification of habitat means a ``direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species in the wild.'' 
Common to both definitions is an appreciable detrimental effect to both 
the survival and recovery of a listed species.
    For any listed species, an analysis to determine jeopardy under 
section 7(a)(2) would consider impacts to the species resulting from 
impacts to habitat. Therefore, an analysis to determine jeopardy would 
include an analysis closely parallel to or, for the splittail, 
equivalent to an analysis to determine adverse modification of critical 
habitat. For the Sacramento splittail, any modification to suitable 
habitat within the species' range has the potential to affect the 
species. Actions that may affect the habitat of the splittail include, 
but are not limited to--(1) reduction of fresh water flows, (2) 
degradation of water quality, (3) reduction in the quality or quantity 
of flooded vegetation, (4) alteration of shallow water areas containing 
submergent (under water) and/or emergent (above the water surface) 
vegetation, and (5) construction of structures that interfere with 
migration patterns or block free access to spawning or rearing areas. 
Although the splittail is a wide ranging species, actions affecting 
habitat can have relatively large impacts to the population. For 
example, an activity that destroys or degrades, or blocks access to, an 
important spawning site could result in reproductive failure of a 
significant portion of the population affecting population size and age 
structure in following years. For the Sacramento splittail, we have 
determined that, were critical habitat designated, it would include no 
areas that would not be subject to consultation under the jeopardy 
standard. Moreover, we have determined that the level of habitat impact 
necessary to result in a determination of destruction or adverse 
modification of critical habitat (were we to designate critical habitat 
for the splittail) would also result in a determination of jeopardy to 
the species. Therefore, were critical habitat to be designated for the 
splittail, no additional section 7 consultations beyond those caused by 
the listing itself would take place, nor would the practical result of 
any such consultations differ.
    To date, we have prepared 284 conference reports for the Sacramento 
splittail for projects involving changes in hydrology, availability of 
spawning habitat, migratory cues, and other behavioral patterns as well 
as potential increase in entrainment. Three of these conferences 
resulted in initial draft jeopardy determinations. These draft jeopardy 
determinations provide evidence that, by their very nature, impacts to 
splittail habitat that would result in a determination of adverse 
modification would result in a determination of jeopardy to the 
species. For these projects, the habitat impacts were the primary basis 
for the jeopardy determinations.
    The three projects that resulted in initial draft jeopardy 
conference reports included the proposed Delta Wetlands Project (March 
1996) (this project has since been modified to avoid jeopardy), 
proposed modifications to the south Delta Temporary Barrier Program 
(January 1997), and the proposed Interim South Delta Program (April 
1998). The consultations and conferences for these projects addressed 
the adverse effects on the delta smelt, its critical habitat, and the 
Sacramento

[[Page 5978]]

splittail. With respect to each project, we concluded that it was 
likely to jeopardize the continued existence of both species, and to 
cause the destruction or adverse modification of the delta smelt's 
critical habitat. In each of these examples, we expressly found that an 
activity that would destroy or adversely modify critical habitat for 
the delta smelt would also jeopardize its continued existence. In each 
case, the project's primary impacts to the splittail, and the primary 
bases for our conclusion that the splittail would be jeopardized by the 
project, were habitat impacts. Moreover, had critical habitat been 
proposed for the splittail, neither these conferences nor any of the 
others regarding the splittail would have resulted in a finding of 
adverse modification without a complementary finding of jeopardy.
    Apart from section 7, the Act provides no additional protection to 
lands designated as critical habitat. Designating critical habitat does 
not create a management plan for the areas where the species occurs; 
does not establish numerical population goals or prescribe specific 
management actions (inside or outside of critical habitat); and does 
not have a direct effect on areas not designated as critical habitat.
    A designation of critical habitat that includes private lands would 
only affect actions where a Federal nexus is present and would not 
confer any additional benefit beyond that already provided through 
section 7 consultation under the jeopardy standard. Designation of 
critical habitat on private lands could, however, result in a detriment 
to the species. The regulatory effect of critical habitat designation 
is often misunderstood by private landowners, particularly those whose 
property boundaries are included within a general description of 
critical habitat for a species. In the past, landowners have mistakenly 
believed that critical habitat designation will be an obstacle to 
development and impose restrictions on the use of their property. In 
some cases, landowners have believed that critical habitat designation 
is an attempt by the government to confiscate their private property. 
As a result of this misunderstanding, critical habitat designation has 
sometimes reduced private landowner cooperation in efforts to conserve 
species listed in California. Because the splittail is found in some 
rivers and tributaries flowing through private lands, the cooperation 
of private landowners is imperative to conserve the splittail. 
Controversy resulting from critical habitat designation has been known 
to reduce private landowner cooperation in the management of other 
listed species (e.g., the northern spotted owl (Strix occidentalis 
caurina) in Oregon, Washington, and California).
    We are concerned that designating critical habitat increases the 
likelihood of intentional acts of vandalism and habitat destruction due 
to widespread public misunderstanding of critical habitat. Within the 
general area where splittail occur, we have documented a number of 
cases where habitat for listed species was deliberately vandalized or 
destroyed to avoid dealing with endangered species regulatory issues. 
Vernal pools, which provide habitat for several listed and candidate 
species, including the giant garter snake (Thamnophis gigas), have been 
affected negatively by landowners rerouting stream courses in order to 
eliminate potential endangered species regulatory effects (F. Muth, 
Fish and Wildlife Service, pers. comm.). We have documented the 
deliberate destruction of habitat for giant garter snakes (K. Hornaday, 
Fish and Wildlife Service, pers. comm.) and valley elderberry longhorn 
beetles (Desmocerus californicus dimorphus) (B. Cordone, Fish and 
Wildlife Service, pers. comm.; S. Pearson, Fish and Wildlife Service, 
pers. comm.; D. Weinrich, Fish and Wildlife Service, pers. comm.; B. 
Twedt, Fish and Wildlife Service, pers. comm.) along irrigation canals 
within the same general areas where the splittail occurs. We are 
concerned that designation of critical habitat for the splittail may 
precipitate further habitat destruction affecting splittail and the 
other species in these habitats.
    We acknowledge that in some situations critical habitat designation 
may provide some value to the species by notifying the public about 
areas important for the species' conservation and calling attention to 
those areas in special need of protection. However, in the case of the 
splittail, we have already spent enormous effort on public outreach and 
education and believe that critical habitat designation for the 
splittail would not provide any further notification or education 
benefit. Subsequent to the publication of the proposed rule to list the 
splittail, we initiated an extensive public outreach strategy to inform 
and educate the general public and interested parties within the range 
of the species. We sent out press releases to local newspapers, 
contacted elected officials, Federal, State, and county agencies, and 
interested parties, including private landowners. We also provided the 
Recovery Plan for the Sacramento/San Joaquin Delta Native Fishes that 
addresses eight fish species including the splittail to these same 
interested parties. We will continue to inform and educate the public 
and private landowners within the range of the species through the 
dissemination of additional information including copies of the final 
rule, fact sheets, and question and answer sheets explaining relevant 
parts of the Act to the parties listed above.
    In addition, up-to-date information about the splittail and its 
habitat, as well as detailed information about the Bay-Delta ecosystem 
and other areas critical to conserving species that utilize the Bay-
Delta, is already widely disseminated to private landowners and to 
entities or individuals that may propose projects that could affect 
splittail. As discussed above in Factor E in the ``Summary of Factors 
Affecting the Species'' section, the CALFED Program is a cooperative 
effort to develop a long term comprehensive plan to restore ecological 
health and improve water management for all beneficial uses of the Bay-
Delta system. In the process of developing a long term plan, CALFED has 
held numerous public meetings, workshops, and hearings throughout the 
State to receive information from the public, as well as to inform the 
public about the program's goals and ecological needs of the species, 
including splittail. CALFED maintains an extensive mailing list in 
order to keep landowners, local, State, and Federal entities, as well 
as the interested public, apprised of CALFED's actions and the 
ecological needs of the species that utilize the Bay-Delta ecosystem 
and other areas necessary for the conservation of species, including 
splittail.
    Regarding any potential benefit provided by informing other Federal 
and State agencies about the splittail, the knowledge of the range and 
habitat requirements for this species is well known by Federal 
agencies, as is evidenced by the 284 conference reports we have 
prepared addressing the splittail. The Service's Sacramento Field 
Office stores information about the ranges of listed and other 
sensitive species by USGS 7\1/2\ quad maps in a database. When a 
Federal agency notifies the Service about a potential project they may 
authorize, fund, or carry out, the Service does a database search and 
provides a list of species that may be affected by the proposed action. 
The plants and animals that are included on the species list are those 
that may be affected, either directly or indirectly, by the proposed 
project. Fish and other aquatic species including the splittail appear 
on the species list if they are in the same watershed as the proposed 
action. In other words,

[[Page 5979]]

splittail appear on a species list if the action occurs anywhere in the 
Central Valley of California, including all rivers and the tributaries 
that drain to these rivers. This database is updated if new information 
about a species is made available. Use of this database provides a 
superior means of providing information about a species' location to a 
Federal agency.
    Because of the sensitivity of the water community in California, 
State, Federal, and private water users are also very aware of the 
species range and habitat requirements. This knowledge extends to local 
reclamation boards, county boards of supervisors, individual water 
districts as well as a large number of private individuals. Private 
consultants, who provide the biological expertise for all of the above 
mentioned publics, have developed extensive knowledge of the current 
range, habitat requirements, and potential effects of project proposals 
on the splittail. Designation of critical habitat would not cause us to 
provide different or additional information to these entities for the 
purposes of preserving and/or recovering the species.
    We have evaluated the potential notification and education benefit 
offered by critical habitat designation and find that, for the 
splittail, there would be no additional benefit over the current 
outreach and interagency coordination process currently in place. 
Notification and education can be conducted more effectively by working 
directly with landowners and communities through the recovery 
implementation process and, where a Federal nexus exists, through 
section 7 consultation and coordination. Critical habitat designation 
for the splittail would provide no further notification or education 
benefit. In addition, these existing processes preclude problems and 
potential risks associated with confusion and misunderstanding that may 
accompany a critical habitat designation.
    Critical habitat designation can also aid in the development of a 
species' recovery plan by identifying the areas needing protection or 
requiring special management considerations. However, we have already 
developed the Recovery Plan for the Sacramento/San Joaquin Delta Native 
Fishes that addresses eight fish species, including the Sacramento 
splittail. The Recovery Plan identifies the important habitat areas for 
the splittail.
    In summary, we have determined that the designation of critical 
habitat for the splittail would not be beneficial to the species. For 
the splittail, the section 7 consultation process will produce a 
jeopardy analysis that has results equivalent to a critical habitat 
adverse modification analysis. We already provide private landowners 
and agencies with up-to-date information on important areas for the 
splittail. Federal agencies are already engaged in splittail 
conservation efforts, and we will continue to provide them with up-to-
date information on areas important for splittail conservation. We have 
completed recovery planning for the species, and we will review the 
information in the recovery plan periodically to determine if updates 
and revisions are needed. Finally, even if designation of critical 
habitat for the splittail would provide some small, incremental benefit 
to the species, that benefit is outweighed by the increased risk of (1) 
controversy that would hamper recovery efforts or (2) vandalism. Based 
on this analysis, we conclude that designation of critical habitat for 
the Sacramento splittail is not prudent.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. We initiate such actions following 
listing. The protection required of Federal agencies and the 
prohibitions against taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer informally with us on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. If a species is 
subsequently listed, section 7(a)(2) requires Federal agencies to 
insure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with us.
    Federal actions that may affect the splittail include, but may not 
be limited to, those actions authorized, carried out, or funded by the 
Corps, BOR, National Marine Fisheries Service (NMFS), FERC, and USEPA. 
The Corps funds projects and issues permits for water pumping and 
diversion facilities, levee construction or repair, bank protection 
activities, deep-water navigation channel dredging and dredge spoil 
disposal projects, sand and gravel extraction, marina and bridge 
construction, diking of wetlands for conversion to farmland, and tidal 
gate or barrier installation. The BOR and DWR construct, operate, and 
manage water storage and delivery facilities. The FERC licenses and re-
licenses hydroelectric power facilities, that manipulate instream 
flows, in the tributaries to the Sacramento and San Joaquin rivers. The 
USEPA reviews State water quality standards and promulgates replacement 
standards pursuant to the Clean Water Act if State standards are found 
to be inadequate. In 1991, USEPA disapproved portions of the SWRCB's 
WQCP for salinity in the Estuary. Subsequent to that decision, the 
USEPA developed new water quality standards to replace those that were 
disapproved. The USEPA published a proposed rule in December of 1993 
requesting comments. Prior to finalizing the final rule, the State 
developed new water quality standards and proposed a new WQCP, 95-1WR, 
which was implemented, in-part, through Water Rights Order 95-6. The 
USEPA determined that the State's standards provided equivalent or 
better protection and has withdrawn the Federal proposal. The State is 
in the process of developing an implementation plan to fully achieve 
the goals of the WQCP, and is hearing testimony on many issues.
    The Sacramento splittail proposed rule was published January 6, 
1994. During the last 4 years, 284 conference opinions have been 
developed for projects proposed by various Federal agencies. We are 
prepared to adopt all conference opinions as final biological opinions 
for the Sacramento splittail, provided that the respective agencies 
request the adoption in writing and the reinitiation criteria listed 
under 50 CFR 402.16 do not apply. If there have been no significant 
changes in an action as planned or in the information used during the 
conference, we will confirm the conference opinion as the biological 
opinion on the project, and no further section 7 consultation will be 
necessary.

[[Page 5980]]

    However, reinitiation of formal consultation is required where 
discretionary Federal agency involvement or control over the action has 
been maintained (or is authorized by law) and if--(1) the amount or 
extent of incidental take is exceeded; (2) new information reveals that 
the agency action may affect listed species or critical habitat in a 
manner or to an extent not considered in this opinion; (3) the agency 
action is subsequently modified in a manner that causes an effect to 
the listed species or critical habitat that was not considered in this 
opinion; or (4) a new species is listed or critical habitat designated 
that may be affected by the action. In instances where the amount or 
extent of incidental take is exceeded, any operations causing such take 
must cease pending reinitiation.
    Under section 4 of the Act, listing the splittail provides 
additional impetus for development and implementation of a recovery 
plan to bring together Federal, State, and private efforts to develop 
conservation strategies for this species. We convened the Delta Native 
Fishes Recovery Team to prepare a recovery plan for declining native 
fishes in the Estuary. The draft recovery plan developed a framework 
for agencies to coordinate activities and cooperate with each other in 
conservation efforts. It also set recovery priorities and estimated 
costs of various tasks necessary to accomplish recovery goals. Site-
specific management actions necessary to achieve survival and recovery 
of splittail and other fishes native to the Estuary ecosystem were also 
described in this draft plan. The draft recovery plan was released for 
public review and comment on January 8, 1995 (60 FR 2155). Notice of 
availability of the final plan was published in the Federal Register on 
November 26, 1996 (U.S. Fish and Wildlife Service 1996).
    The Act and implementing regulations set forth a series of general 
prohibitions and exceptions that apply to all threatened wildlife. The 
prohibitions, codified at 50 CFR 17.21 and 17.31, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (including harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, collect, or attempt any such conduct), import or export, 
transport in interstate or foreign commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species. It also is illegal to possess, sell, deliver, 
carry, transport, or ship any such wildlife that has been taken 
illegally. Certain exceptions apply to agents of the Service and State 
conservation agencies.
    Our policy, as published in the Federal Register on July 1, 1994 
(59 FR 34272), is to identify to the maximum extent practicable at the 
time a species is listed those activities that would or would not 
constitute a violation of section 9 of the Act if a species is listed. 
Section 9 of the Act prohibits certain activities that directly or 
indirectly affect listed species. The intent of this policy is to 
increase public awareness of the effect of a proposed listing on 
proposed and ongoing activities within a species' range. We believe 
that, based on the best available information, the following actions 
will not result in a violation of section 9, provided these actions are 
carried out in accordance with any existing regulations and permit 
requirements:
    (1) Routine levee road maintenance;
    (2) Weed and brush control on levees above the mean higher high 
water mark or the ordinary high water mark;
    (3) Aquatic recreational activities;
    (4) Actions that may affect splittail that are authorized, funded 
or carried out by a Federal agency, when the action is conducted in 
accordance with an incidental take statement issued by the Service 
pursuant to section 7 of the Act, and;
    (5) Actions that may affect splittail that are not authorized, 
funded or carried out by a Federal agency, when the action is conducted 
in accordance with an incidental take permit issued by the Service 
pursuant to section 10(a)(1)(B) of the Act.
    Activities that we believe could potentially harm the Sacramento 
splittail and result in ``take'' include, but are not limited to:
    (1) Diversion of water from any river or stream or other water 
course that results in the entrainment, injury or death of splittail, 
including stranding of eggs, larvae, juveniles or adults; or diversions 
that result in the degradation of waters containing splittail;
    (2) Levee slope and bank protection that occurs below the mean 
higher high water mark or the ordinary high water mark of a water body 
that results in the loss of shallow water habitat used by splittail for 
spawning and rearing;
    (3) Dredging in any river or stream or other water body that 
contains Sacramento splittail including dredging in flooded areas where 
splittail may be spawning, or dredging that results in the degradation 
of waters containing splittail;
    (4) Discharge of fill material into a water body supporting 
splittail that results in the destruction or degradation of spawning 
and rearing habitat, substrate composition, water salinity, water 
quality, channel stability, or migratory corridors;
    (5) Discharge or dumping of toxic chemicals, pesticides, organic 
wastes or other pollutants into a water body supporting splittail, or 
discharge or dumping of pollutants that results in the degradation of a 
water body containing splittail; and
    (6) Unauthorized collection of splittail.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Service's Sacramento Office (see ADDRESSES section).
    Permits may be issued to carry out otherwise prohibited activities 
involving threatened wildlife species under certain circumstances. 
Regulations governing permits for threatened species are codified at 50 
CFR 17.32. Permits for threatened species are available for scientific 
purposes, to enhance the propagation or survival of the species, and/or 
for incidental take in connection with otherwise lawful activities. For 
threatened species, permits are available for zoological exhibition, 
educational purposes, or special functions consistent with the purposes 
of the Act. Requests for copies of the regulations on listed species 
and inquiries regarding permits may be addressed to the U.S. Fish and 
Wildlife Service, Ecological Services, Endangered Species Permits, 911 
NE 11th Avenue, Portland, Oregon 97232-4181 (telephone 503-231-6241; 
facsimilie 503-231-6243).

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined in the National Environmental Policy Act 
of 1969, need not be prepared in connection with regulations adopted 
pursuant to section 4(a) of the Endangered Species Act of 1973, as 
amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid control number. For additional 
information concerning

[[Page 5981]]

permit and associated requirements for threatened species, see 50 CFR 
17.32.

References Cited

    A complete list of all references cited in this rule are available 
upon request from the Sacramento Fish and Wildlife Office (see 
ADDRESSES section).

Authors

    The primary author of this rule is Michael G. Thabault, U.S. Fish 
and Wildlife Service, Sacramento Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec. 17.11(h) add the following to the List of Endangered and 
Threatened Wildlife in alphabetical order under ``FISHES:'


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Fishes
 
                *                   *                   *                   *                   *                   *                   *
Splittail, Sacramento............  Pogonichthys          U.S.A. (CA)........  Entire.............  T                       656           NA           NA
                                    macrolepidotus.
 
                *                   *                   *                   *                   *                   *                   *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: February 1, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 99-2867 Filed 2-5-99; 8:45 am]
BILLING CODE 4310-55-P