[Federal Register Volume 66, Number 9 (Friday, January 12, 2001)]
[Rules and Regulations]
[Pages 2828-2837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-970]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH73


Endangered and Threatened Wildlife and Plants; Notice of 
Reopening of Comment Period on the Threatened Status of the Sacramento 
splittail (Pogonichthys macrolepidotus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; reopening of comment period.

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

SUMMARY: The Fish and Wildlife Service (Service), in response to the 
order of the District Court, Eastern District of California, in the 
cases San Luis & Delta-Mendota Water Authority v. Anne Badgley, et al. 
(Case No. CIV-F-99-5658 OWW) and State Water Contractors, et al. v. 
Michael Spear, et al. (Case No. CIV-R-99-5667 OWW) and pursuant to the 
Endangered Species Act of 1973, as amended (Act), provides notice of 
the opening of a comment period regarding the threatened status for the 
Sacramento splittail (Pogonichthys macrolepidotus). This comment period 
has been opened to acquire information regarding issues identified by 
the court in the above cases and additional information on the status, 
abundance and distribution of the Sacramento splittail in the Central 
Valley of California. Upon the close of the comment period, the Service 
will make its determination whether the splittail warrants the 
continued protection of the Act.

DATES: The comment period for this rule closes on February 12, 2001. 
Any comments received by the closing date will be considered in the 
final decision on this rule.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Sacramento Fish and Wildlife Office, U.S. 
Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, 
California 95825. Comments and materials received will be available for 
public inspection, by appointment, during normal business hours at the 
above address.

FOR FURTHER INFORMATION CONTACT: Michael Thabault or Stephanie Brady, 
at the above address, phone 916-414-6600, facsimile 916-414-6710.

SUPPLEMENTARY INFORMATION:

Background

    The Sacramento splittail (Pogonichthys macrolepidotus), is the only 
large cyprinid that is endemic 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, as far 
south as the present-day site of Friant Dam on the San Joaquin River, 
and as far upstream as the current Oroville Dam site on the Feather 
River and Folsom Dam site on the American River (Rutter 1908).
    In recent times, dams and diversions have increasingly prevented 
upstream access to large rivers, and the species is now apparently 
restricted to a small portion of its former range (Moyle and Yoshiyama 
1992). Splittail enter the lower reaches of the Feather (Jones and 
Stokes 1993) and American rivers (Charles Hanson, State Water 
Contractors, in litt., 1993) on occasion; however, the species now is 
largely confined to the delta, Suisun Bay, Suisun Marsh, and Napa 
Marsh. The ``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 of 1969. 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.
    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). California Department 
of Fish and Game survey

[[Page 2829]]

data indicate that the highest catches occurred in shallow areas 
subject to flooding. Historically, 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 into flood control structures (bypasses). Although primarily a 
freshwater species, splittail can tolerate salinities as high as 10 to 
18 parts per thousand (Moyle and Yoshiyama 1992).
    On January 6, 1994, the Service published a proposed rule to list 
the splittail as a threatened species and requested public comment for 
60 days (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. The data in the proposed rule were based on a 
status report prepared for the Service by Meng in 1993. This status 
review used the same methodology as the peer-reviewed article published 
in the Journal of the American Fisheries Society.
    On January 10, 1995, a second comment period was opened for 45 
days, and a 6-month extension added to the final rulemaking time frame, 
in accordance with section 4(b)(6)(B)(I) of the Act. A moratorium on 
listing actions, imposed on April 10, 1995 (Pub. L. 104-6), was lifted 
on April 26, 1996. Severe funding constraints imposed by a number of 
continuing resolutions between November 1995 and April 1996 were 
followed by passage of the Omnibus Budget Reconciliation Act on April 
26, 1996, allowing work to continue on various listing actions in 
accordance with fiscal year guidance that assigned priorities in a 
multi-tiered approach in accordance with section 4 of the Act (61 FR 
64479). The guidance stated that handling emergency situations was the 
highest priority (Tier 1), and resolving the listing status of 
outstanding proposed rules was second highest priority (Tier 2). 
Processing of this proposed rule fell under Tier 2.
    On May 18, 1998, a third comment period was opened for 60 days. 
This comment period was opened in response to requests by the 
California Department of Water Resources and the State Water 
Contractors. The basis of the requests concerned the collection of 
substantial data in the intervening period since 1995, regarding the 
abundance and distribution of the splittail. During this third comment 
period, the California Department of Fish and Game (CDFG) and the 
Department of Water Resources (DWR) objected to the proposed 
designation of the splittail as threatened, stating that the geographic 
distribution of the splittail was broader than previously believed and 
was being shown to expand as data continued to be gathered.
    On May 29, 1998, Southwest Center for Biological Diversity filed a 
citizen suit alleging that the Service had failed to timely make a 
final determination on the listing and critical habitat designation of 
the splittail, consistent with the timeframes set forth in section 4 of 
the Endangered Species Act 4. By Order dated December 23, 1998, the 
court (Judge Gonzalez of the Southern District of California) ordered 
the Service to comply with section 4 listing requirements by February 
1, 1999, after determining that the Service violated the Act's time 
limits for making a final listing determination (Order Granting 
Plaintiffs' Motion for Summary Judgment; Denying Defendants' Request 
for Stay, Southwest Center for Biological Diversity etc. v. Babbitt).
    On Monday, February 8, 1999, the Service published a final rule, 
listing the splittail as threatened under the Act. At that time, the 
Service determined that the splittail had declined by 50 percent; and 
was primarily threatened by changes in water flow 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.
    Subsequent to the publication of the final rule, plaintiffs in the 
cases San Luis & Delta-Mendota Water Authority v. Anne Badgley, et al. 
and State Water Contractors, et al. v. Michael Spear, et al. commenced 
action in federal district court, challenging the listing of the 
splittail as threatened, alleging various violations of the Act and of 
the Administrative Procedure Act (5 U.S.C 551 et seq.), specifically 
that the Service failed to use the best scientific and commercial data 
available; that the Service ignored all pre-1980 and post-1992 data 
available and that it used only selected data from the 1980-1992 
period; that the Service did not publish a summary of the available 
data, which data the Service considered, and the relationship between 
the data and the Service's decision on the final rule; and that the 
final rule was promulgated by the Service in a manner that was 
arbitrary, capricious, and not in accordance with law, in that the 
splittail did not meet the definition of a threatened species as set 
forth in the Act.
    On June 23, 2000, the court rendered summary judgment in the two 
cases in favor of the plaintiffs, finding that the Service's 
promulgation of the final rule listing the splittail as threatened was 
unlawful. On September 22, 2000, the court remanded the determination 
of whether or not the splittail is a threatened or endangered species 
to the Service. The court ordered the determination be completed within 
six months of the date of the remand order, and kept the rule in effect 
during that period.
    By this notice, the Service is seeking information regarding the 
splittail's status, abundance and distribution, as well as information 
regarding issues identified by the court in its June 23, 2000, 
judgment.

Abundance Analysis

    The following text discusses the analysis the Service completed in 
the final rule, with additional analysis using 1998 and 1999 data, an 
updated threats analysis and how these threats may impact the 
splittail.
    At the time of the final rule, the Service considered data made 
available to it up to and through the third commenting period. This 
included all the information that the Service received from the various 
agencies during the open comment periods and the additional data that 
were collected between 1993 to 1997. The Service based its analysis for 
the final rule on the 1995 Meng and Moyle paper entitled ``Status of 
Splittail in the Sacramento-San Joaquin Estuary'', published in the 
Transactions of the American Fisheries Society, a peer reviewed 
journal. When an author submits a paper to a professional scientific 
journal, there are experts in the scientific community that anonymously 
review the submittals. Therefore, to be accepted in a professional 
journal, the paper is subjected to several reviews by an anonymous 
panel and the reviewers do not know who authored the paper. This, 
therefore, eliminates any bias or subjectivity that may occur in review 
and ensures papers submitted to professional journals are unbiased and 
scientifically sound.
    The Meng and Moyle paper clearly explains the methodology which the 
Service used to determine splittail declines in abundance. They state:

    We determined percent declines in splittail for the fall 
midwater trawl, bay survey, Suisun Marsh and Chipps Island studies 
by comparing point estimates with the Mann-Whitney U-test. We used a 
common core data set of 1980-1992 yearly abundances from each survey 
and divided them into pre- and post decline periods. We chose 1985 
as the beginning of the decline because evidence from plots of 
splittail abundance against

[[Page 2830]]

years and because environmental and water management changes 
occurred in the estuary at about that time. The years preceding 1985 
had highly variable water regimes that included drought and 
flooding. After 1984, winter and spring flows were diverted at 
higher rates, resulting in reverse flows in the San Joaquin River 
for about 50% of the spring spawning season (Moyle et al. 1992). Pre 
and post decline periods are approximate because the splittail 
probably declined over a multiyear period and surveys used in this 
study took place in different habitats in different parts of the 
estuary, where different rates and timing of the decline would be 
expected.

    At the time the final rule was written, this was the best 
scientific method available to the Service. No other methodology had 
nor has been presented before or since the publication of the final 
rule. The Meng and Moyle paper had been peer reviewed and accepted for 
publication in the Transactions of the American Fisheries Society, 
after rigorous scientific review by fisheries experts. Based on 
available information to date, the Service continues to believe that 
this methodology is the best scientific method to determine decline in 
abundance.
    When determining whether splittail abundance indices had decreased 
over time, the Service considered data from (1) the fall mid-water 
trawl (FMWT), (2) Bay Study, (3) Suisun Marsh survey, and (4) Chipps 
Island survey. The FMWT survey is conducted in the upper Estuary by 
CDFG. It is one of the most comprehensive surveys for surveying fish in 
the Delta. The data have been collected from 1967 to the current time; 
with the exception of two years of data (1974 and 1979). The monthly 
midwater and otter trawl in the lower Estuary is conducted by CDFG (Bay 
study). Data for this survey have been collected from 1980 to the 
current time. The Service combined the midwater and otter trawl for the 
Bay study because the mid-water trawl samples juveniles and the otter 
trawl targets adults. By combining the data generated from the two 
sampling methods, any bias inherent in this sampling method for each 
life stage is evened out. The monthly otter trawl survey of Suisun 
Marsh is conducted by the University of California at Davis (Suisun 
Marsh survey). Data have been collected from 1979. The midwater trawl 
survey is conducted by the Service at Chipps Island in Suisun Bay 
(Chipps Island). This survey has been ongoing since 1976.
    The summer townet and beach seine data were also available to the 
Service. However, neither of these surveys were used in the abundance 
decline analysis because the Service believes that the summer townet is 
inefficient in sampling splittail. It is inefficient because it is 
selective for a certain age class of splittail. The beach seine data 
were not used because several years of data are missing and the sample 
sites have changed over time; therefore this survey represents an 
inconsistent data set to be used to analyze abundance. However, both of 
these aforementioned data sets were used in the distribution analysis 
for this species.
    The fish salvage data collected by CDFG and by the Bureau of 
Reclamation at the State and Federal pumping facilities located in the 
South Delta (fish salvage data) were used on an individual basis to 
determine if there were trends, and the directions of those trends, 
within these data collected. However, these salvage data were not used 
for overall decline analysis because collection of fish salvage data is 
not a survey method. It is not a survey method because take of this 
species is based on the location of the fish. In addition, it is highly 
selective to juveniles. Therefore, this method does not represent the 
population as a whole. There is also high variability of the number of 
fish taken based on project operations. For instance, if most of the 
population of splittail is temporarily in or centered around the San 
Joaquin River, then more is susceptible to take at the export 
facilities. However, splittail are not always found at the export 
facilities. When splittail are more evenly distributed, the export 
facilities do not give a good indication of the population as a whole.
    In addition, the Service conducted an abundance analysis for each 
survey set which fit within the Services' abundance data criteria for 
splittail. These abundance criteria serve to ensure that data from 
specific surveys were scientifically and statistically reliable. To fit 
within these abundance data criteria, (1) data had to be collected for 
at least ten consecutive years, and (2) had to be relatively constant 
or (3) a core data set had to be available to extract for analysis. 
These criteria were identified in published literature and adopted by 
the Service in it rulemaking. In addition, data sets were chosen based 
on consistency in sampling method. For instance, the FMWT data prior to 
1980 were excluded because this survey is missing data for two years 
prior to 1980 (1974, and 1979). The summer townet was not used for the 
abundance analysis due to the inefficiency in sampling splittail and 
because the sampling sites changed over time. The beach seine data were 
not used for the abundance analysis because several years of data are 
missing and the sample sites changed over time, rendering it an 
inconsistent data base.
    Based on this methodology, the 1995 Meng and Moyle article 
calculated population trends for the splittail over 13 years, from 1980 
to 1992. The Service then updated this analysis using the same 
methodology as Meng and Moyle, but including the data sets from 1993 
through 1997. The 1998 data were not used in the final rule because at 
the time the final rule was prepared for surname, and even until the 
time of publication in February 1999, not all data for the four surveys 
(FMWT, Chipps Island, Suisun Marsh, and Bay study) had been compiled 
and/or submitted to the Service. Likewise for this notice, not all 2000 
data have yet been compiled and/or submitted to the Service, hence the 
data that have been received are not incorporated into Table 1 (see 
below). Since the publication of the final rule in February 1999, the 
Service has analyzed and incorporated the 1998 and 1999 data in its 
abundance analysis (Table 1). The following is a breakdown of the 
abundance analysis, for all life stages, by survey method, as completed 
by Meng and Moyle, the Service in the final listing determination, and 
the Service with the addition of 1998 and 1999 data (Table 1).

  Table 1.--Abundance Analysis\1\ Conducted by the Service for All Life Stages of Sacramento Splittail, on Four
                                                 Survey Methods
----------------------------------------------------------------------------------------------------------------
                                                   Service's        Service's        Service's
                                Meng and Moyle      updated          updated          updated
            Survey               (1980-1992)    analysis  (1980- analysis  (1980- analysis  (1980-
                                                     1997)            1998)            1999)
-------------------------------------------------------------------------------------------------
FMWT.........................  70% decline....  60% decline....  40% decline....  40% decline.
Bay study....................  20% decline....  6% decline.....  27% increase...  33% increase.
Chipps Isl...................  80% decline....  43% decline....  42% decline....  44% decline.
Suisun Marsh.................  73% decline....  74% decline....  72% decline....  83% decline.

[[Page 2831]]

 
OVERALL......................  62% decline....  48% decline....  32% decline....  33% decline.
----------------------------------------------------------------------------------------------------------------
\1\ To obtain the data in the preceding table, the Service used the following formula: (1) pre-decline (a)--post-
  decline (b) = decline (x); (2) decline (x)/pre-decline (a) = percent decline. This calculation was used for
  each survey by summarizing the data per year, starting in 1980. This formula of calculation is the same method
  presented by Meng and Moyle in its peer-review article published in 1995.

    The results of this abundance analysis are revealing. Between 1980 
and 1992, splittail had experienced an overall decline of 62 percent. 
Based upon the updated data sets that include data through 1997, the 
splittail had experienced a significant overall decline in abundance by 
48 percent. The results using the 1998 and 1999 data still demonstrate 
an overall decline of 32 percent and 33 percent, respectively. Based 
upon historical data, over the most lengthy study period (1980-1999), 
and based upon methodology critiqued by experts, the splittail still 
face an overall abundance decline of 33 percent.
    To date, the Service has only received 2000 data on the fall mid-
water trawl and these data are preliminary. However, the FMWT indices 
for splittail are as follows: September is zero and October is four. 
Based on historic fall midwater trawl data, these numbers appear to be 
at the low-end of the spectrum. However, all of the FMWT data are not 
available yet. The Service is not incorporating these data at this time 
into any analysis nor is the Service speculating on what these low 
numbers may mean for splittail abundance indices because these data are 
incomplete.
    In addition to the abundance analysis, the Service conducted an 
analysis using CVP and SWP export facility data, commonly known as 
salvage data, depicted below (Table 2). As noted, there was an increase 
of splittail taken at the CVP and SWP export facilities using 1995 and 
1998 data. It is the opinion of the Service that this increase in take 
was due to the exceptionally wet water years that occurred in 1995 and 
1998, which resulted in a higher number of splittail. Take at the 
export facilities was exceptionally high during both years because in 
general, there are more fish in an aquatic system in wet years. The 
Service believes the high take for 1995 was related to the following 
factors: (1) It was the first extremely wet water year in several 
years; (2) the spawning distribution of splittail was located primarily 
in the San Joaquin River, exposing more fish to the export facilities; 
and (3) CVP and SWP exports were unusually high to take advantage of 
the high water flows. For 1998, the Service believes that take was high 
due to the location of splittail again in the San Joaquin River and the 
increased export operations of the export facilities associated with 
wet year hydrologies. Salvage data are not used in overall abundance 
analysis because salvaging is not a survey method.

                                     Table 2.--CVP and SWP Salvage Analysis
----------------------------------------------------------------------------------------------------------------
                                    Meng and Moyle    Service's analysis  Service's analysis  Service's analysis
           Life stage                 (1980-1992)         (1980-1997)         (1980-1998)         (1980-1999)
----------------------------------------------------------------------------------------------------------------
YOY \1\.........................  64% decline.......  92% increase \2\..  167% increase.....  150% increase.
All life stages.................  N/A \3\...........  80% increase......  150% increase.....  134% increase.
----------------------------------------------------------------------------------------------------------------
\1\ YOY is young-of-the-year.
\2\ In the final rule, the Meng and Moyle data reflect young-of-the-year data whereas updated data reflect all
  life stages for salvage data calculations. Therefore, we present both YOY data as well as all life stage data.
  Discrepancies in numbers between the final rule and the table above are due to a re-calculation of the raw
  numbers by the Department of Water Resources.
\3\ Meng and Moyle did not publish a salvage data calculation for all life stages.

    It is erroneous to conclude that because more splittail were taken 
at the projects as reflected by the above later year analysis, that 
more splittial are present in the system. To reach such a conclusion 
discounts results of the studies conducted to determine actual 
abundance and the analysis which results from them (see Table 1). In 
addition to abundance decline, the Service conducted a ``wet year'' 
analysis using the Chipps Island survey data from 1980 to 1999. The 
Chipps Island survey was chosen because it surveys the area at the 
center of the historic distribution of the splittail. The Service 
believes that this survey is the most representative of splittail 
abundance. A decline in splittail in this area of historic distribution 
was evident through the wet years of 1993. In 1995, an extreme wet 
water year, the decline in wet water year abundance evident in those 
years through 1993, was no longer evident. However, since 1995, the wet 
water year indices for this survey are again low. Wet water years (such 
as 1995) are assumed to provide essential habitat for splittail by 
inundating the floodplain and allowing populations to rebound from dry 
water years, when there is less or no suitable spawning habitat. 
Successful reproduction in splittail is often highly correlated with 
wet water years. Large pulses of young fish were observed in wet water 
years 1982, 1983, 1986, and 1995. In 1995, one of the wettest years in 
recent history, an increase in the Chipps Island index, indeed in all 
indices was recorded, as in 1986, another wet water year following a 
dry water year. However, young of the year taken per unit effort (for 
example, either the number of fish per net that is towed or the number 
of fish per volume of water sampled) has actually declined steadily in 
wet water years, from a high of 12.3 in 1978 to 0.3 in 1993. The 
updated data (1998 and 1999) from CDFG demonstrate a similar decline in 
wet years, from 37.3 in 1978 to 0.6 in 1993. The abundance index of 
splittail calculated using Chipps Island survey data during the years 
of 1995, 1996, 1997, 1998, and 1999 were 44.5, 2.1, 2.6, 6.5, and 2.05 
respectively. 1995 was an extreme wet year and splittail abundances 
were high (44.5). However, 1998 was another extreme wet year and

[[Page 2832]]

the Chipps Island survey data indicate only a slight increase (from 2.6 
to 6.5) as a result. For the wet water years 1996, 1997, and 1999, the 
abundance indices remained low (2.1 to 2.05). The Service agrees that 
in certain wet water years, splittail may have higher reproduction. 
However, outside of 1995, the indices in wet water years remain low.
    In summary, the Service used an analytical method, indeed the only 
method presented to it, to determine splittail abundance. This method 
incorporated the four indices previously discussed and an overall 
analysis, the Chipps Island wet year analysis and salvage data. This 
method was peer-reviewed and published after rigorous scientific 
scrutiny by fishery biologists, in the Journal of the American 
Fisheries Society. The analysis utilizing this method demonstrates a 
decline in the overall abundance of splittail as well as a decline in 
three of the four surveys analyzed. In addition to the overall 
abundance analysis based upon the four independent surveys that 
demonstrate decline, the Chipps Island survey also demonstrates 
decline, even in wet water years. Since the decline continues, the 
Service is of the opinion that splittail are continuing a downward 
trend. This conclusion is reached using the same methodology and data 
(now updated through 1999), that were used and explained in the rule 
making process.

Threats Analysis

    In addition to the abundance analysis, the Service conducted a 
threats analysis for the splittail. In the final rule we determined 
that the splittail was a threatened species due to a combination of the 
five factors that are described in the ``Summary of Factors Affecting 
the Species'' of the final rule (64 FR 5963) pursuant to section 
4(a)(1) of the Act. An endangered species is a species which is in 
danger of extinction throughout all or a significant portion of its 
range. A threatened species is a species which is likely to become 
endangered within the foreseeable future throughout all or a 
significant portion of its range. Pursuant to section 4(a)(1) of the 
Act, the Secretary is required to list a species that he determines to 
be threatened or endangered because of one or more of the following 
five factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    At the time of the final rule, splittail were determined to be 
under threat by actions listed under all factors, except Factor B, and 
that the scope and magnitude of these threats were sufficient to 
warrant listing of the species as threatened. The final rule's analysis 
of the five threat factors is summarized below.
    Threats to splittail were identified under Factor A, which refers 
to the present or threatened destruction, modification, or curtailment 
of a species habitat or range. Specifically, the Service determined 
that, at that time, the present operation of Federal, State, and 
private water development projects--entailing water storage, diversions 
and re-diversions, releases, export and agricultural return flows--
destroyed splittail habitat.
    Regarding Factor B, the Service determined that overutilization 
(i.e., recreational and commercial harvest) was not known to be a 
factor affecting the splittail. Factor B was thus not considered in the 
final rule's determination of threatened status for the splittail.
    The final rule identified the threats under Factor C, which refers 
to the risk presented by disease or predation, as significant. Disease 
was considered significant because of high incidences of adult 
splittail in poor health being captured in the State and Federal water 
project facilities in the south Delta. The south Delta is dominated by 
water from the San Joaquin River, where pesticides (e.g., chlorpyrifos, 
carbofuran, and diazinon), salts (e.g., sodium sulfates), trace 
elements (boron and selenium), and total dissolved solids are prevalent 
in agricultural runoff. In the final rule, threats of predation were 
considered minor because striped bass (Morone saxatilis) had coexisted 
with splittail for decades and because CDFG had forgone hatchery 
rearing and release of striped bass.
    Factor D refers to the inadequacy of existing regulatory 
mechanisms. In the final rule, the suite of regulatory mechanisms were 
not considered to be adequate to protect the splittail. Implementation 
of ecosystem restoration-based programs (e.g., Central Valley Project 
Improvement Act (CVPIA), CALFED Bay-Delta Program), while having 
beneficial elements, would not solely be sufficient to prevent the 
decline of the species. The splittail was without protection under the 
California Fish and Game Code.
    Other natural or manmade factors affecting a species' continued 
existence were evaluated under Factor E. In the final rule, the Service 
evaluated the risk of drought, the lack of screened water diversions, 
poor water quality (contaminants), detrimental flood bypass operations, 
and invasive species and found that these factors were contributing to 
the decline of the splittail.
    Based on the analysis of all five listing factors, threats to 
habitat and destruction of habitat, disease, the lack of protection, 
drought, water diversions, contaminants, project operations in concert 
with a clearly declining abundance, the Service determined that the 
splittail was likely to become endangered in the foreseeable future if 
those threats and current population trends continued. The species was 
thus listed as threatened.
    Numerous threats under Factor A were discussed in the final rule 
and continue to remain. In addition, there have been numerous recent 
projects which have resulted in habitat loss due to construction of 
bank protection involving rock revetment, or riprap. Riprapping 
typically removes riparian and natural bank habitat features of a 
naturally functioning stream channel. Riparian and natural bank 
habitats are features that historically provided natural function to 
the stream banks and flood plains for splittail by providing spawning 
substrate, organic material, food supply, and cover from predators. 
Before the splittail was listed as a threatened species, vast stretches 
of the Sacramento and San Joaquin Rivers, their tributaries, and 
distributary sloughs in the Delta had been channelized and covered with 
rock revetment. This historic channelization and rock revetment 
precluded access to the historic flood plain that the splittail could 
otherwise utilize during periods of higher flow as spawning and rearing 
habitat.
    Environmental restoration as a component of the CALFED Program 
would benefit the splittail, though some protection would not 
necessarily be ensured were the species not listed. For example, some 
protections provided by the Environmental Water Account would not be 
available for unlisted species. The Sacramento-San Joaquin 
Comprehensive Study, under joint development by DWR and the U.S. Army 
Corps of Engineers (USACE), may address restoration efforts but is also 
projected to include a substantial bank protection component. Further, 
the Comprehensive Study is only now engaged in early planning efforts 
and no specific projects have been identified as feasible.
    Prior to the final rule and in the time since the final rule, USACE 
has placed

[[Page 2833]]

or is proposing to place, rock revetment on a total of 130.6 acres of 
splittail habitat, and an additional 70.8 miles of suitable splittail 
habitat. To offset these negative effects, the USACE has restored, or 
is proposing to restore, up to 61.5 acres and 13.1 miles of suitable 
splittail habitat. These activities will result in a net loss of 69.1 
acres and 57.7 miles of suitable splittail habitat. It is not known to 
what extent this will affect splittail abundance.
    Projections of the current and future degree of riprapping within 
the range of the splittail do not include estimates of non-Federal 
riprap projects. The effect of this non-federally applied bank 
protection is addressed under Factor D, as it is related to the 
inadequacy of existing regulatory mechanisms.
    A present threat may exist under Factor B. The Service is concerned 
that the recreational splittail fishery may be targeting gravid female 
splittail from within spawning areas and that the continued lack of 
protection in the State's Fish and Game Code will allow this fishery to 
expand such that it becomes significant. At this writing, however, 
recreational fishing is not considered by the Service to be a 
significant factor in the decline of the species.
    Regarding Factor C, the Service has determined that predation 
remains a minor factor in the decline of the splittail. In the June 16, 
2000, biological opinion on the issuance of a section 10(a)(1)(B) 
permit for the CDFG Striped Bass Management Program, the Service 
concluded that this activity would not jeopardize splittail if the 
conditions in the Habitat Conservation Plan were adhered to. The permit 
expires in 10 years, at which time the effects to listed species will 
be reexamined. Should other factors in the decline of the splittail, 
such as prolonged drought, occur during the permit period, the species 
could suffer predation beyond the level anticipated in the biological 
opinion. This could also require a reexamination of the permit.
    Disease, considered under Factor C, is likely a more significant 
factor in the decline of the splittail than was known at the time of 
the final rule. The reason for the increased scope and magnitude of the 
threat posed by disease is the current understanding regarding the 
prevalence and effects of environmental contaminants on the splittail. 
The presence of environmental contaminants can weaken splittail to the 
point that they suffer from reduced disease resistance. Of specific 
concern are the threats posed by metals, mercury, selenium, and 
pesticides. The current status of information regarding the threat 
posed by environmental contaminants is addressed in detail under Factor 
E.
    Threats to splittail described under Factor D, beyond those 
analyzed in the final rule remain. Since the publication of the final 
rule, regulatory mechanisms continue to remain inadequate to protect 
the species or its habitat. Splittail remain unprotected by the State 
of California under the Fish and Game Code.
    The Service has determined that the CVPIA may benefit the 
splittail, but may not adequately protect the species. The Service also 
has determined that because of the multiple purposes of the CVPIA, 
flows provided by the CVPIA may occur at times of the year that might 
not benefit splittail, such as flows in the fall for salmon. Further, 
CVPIA implementation may involve retention of some water within 
reservoirs during the spring/early summer for cold water pool 
conservation and its subsequent release for meeting salmonid water 
temperature criteria. The retention of flows during the spring 
negatively affects splittail by reducing the frequency and duration of 
floodplain inundation, which is key for spawning and rearing success. 
Delta smelt protection offers little benefit because smelt occur in low 
frequencies or are absent in part of the splittail's range (i.e., 
outside of the legally-defined Delta).
    Though the CALFED Ecosystem Restoration Program Plan (ERPP) will 
have beneficial effects to splittail, provided the ERPP secures long-
term funding, as currently described, it cannot be relied upon to 
ameliorate all threats to the splittail. The CALFED Program, though 
containing broad standards for covered activities, is also not a 
regulatory mechanism and does not necessarily preclude the 
implementation of non-CALFED Program actions harmful to splittail. The 
Environmental Water Account (EWA) does provide a mechanism for 
providing for improved Delta conditions for splittail. However, EWA 
benefits to splittail would be reduced should the species lose the 
protection afforded by the Endangered Species Act because Tier 3 
protections apply only to listed species.
    In addition, numerous, small scale bank protection projects have 
been implemented without section 404 permits throughout the range of 
the Sacramento splittail. Implementation of these unpermitted projects 
has effects similar to those described under Factor A, but given the 
inadequate enforcement of the Clean Water Act, they typically include 
no mitigative features. The result, when unauthorized activities 
including unpermitted bank protection projects, and sand and gravel 
extraction projects occur in streams within the splittail's range, is 
lost and/or degraded habitat for the species.
    There also exists a risk to the splittail from the continued 
issuance of a number of Nationwide General Permits (NWPs), authorized 
under Section 404(e) of the CWA, by the USACE. Certain NWPs allow 
implementation of their permitted activities with the only regulatory 
oversight being provided through notification by the regulated entity 
to the USACE. The Service is especially concerned that NWP General 
Condition 11, which addresses take of listed species and identifies 
requirements for consultation with the Service, is not being 
implemented by applicants and that USACE enforcement of the condition 
is lacking.
    Under Factor E, environmental contaminants (addressed briefly under 
Factor C, above) are a threat to the continued survival of splittail. 
Metals such as copper, zinc, and cadmium can be directly toxic to 
splittail, especially in their sensitive larval stages. These metals 
damage gills and alter liver and nervous system functions causing 
death, behavioral changes, and reduced growth and reproduction. These 
metals can have the same effects on food items of the splittail, 
reducing their prey base and placing additional stress on the 
splittail.
    Literature exists which documents the existence of methylated 
mercury (primarily monomethyl mercury) in the Sacramento River and the 
estuary. Research by the USGS indicates that elevated levels of mercury 
in water, sediment, and biota are found throughout the Sacramento 
River, its tributaries, the Delta, and San Francisco Bay. The primary 
source of this contamination is from mercury mines in the Coast Range 
and from gold mines in the Sierra Nevada range.
    Human health advisories have been issued for mercury in certain 
waterfowl and fish species from the Delta and San Francisco Bay. The 
levels at which human health advisories are issued are also levels at 
which deleterious effects on fish and wildlife can be expected. 
Splittail are relatively long-lived fish, five to seven years, making 
them more susceptible to mercury bioaccumulation than shorter-lived 
fish. Mercury accumulated in a female fish is transferred to the embryo 
where it causes reduced hatching, developmental abnormalities, reduced 
growth, and behavioral changes. Suchanek et al. (2000) investigated the 
role of wetland

[[Page 2834]]

restoration involving re-flooding of mercury-contaminated soils.
    There is concern that reestablished wetlands could become effective 
pathways for the introduction of toxic methyl mercury in the Delta. 
Ecosystem restorations at Clear Lake, a watershed which includes runoff 
from the Sulphur Bank Mercury Mine, threaten to introduce methyl 
mercury to Cache Creek and thus, to the Sacramento River. The Clear 
Lake splittail (Pogonichthys ciscoides), endemic to Clear Lake, is now 
extinct (64 FR 5963), though the role of mercury contamination in its 
decline is not known.
    The Yuba River, a tributary to the Sacramento River via the Feather 
River, is the site of extensive deposition of historic hydraulic mining 
debris. Historic mining often involved the use of elemental mercury to 
amalgamate gold, and much was lost downstream. Current operations 
within the goldfields, whereby the sediments are dredged for gold, can 
liberate waste mercury back into the river system.
    Continued operation of sand and gravel mines and dredging 
operations in these and other mercury-contaminated tributary streams 
threatens to liberate mercury presently stored in the alluvium and 
release it to the ecosystem, where it adversely affects the splittail.
    Also regarding Factor E, and not previously analyzed, is the threat 
to the splittail posed by the synergistic interaction between 
introduced species and other environmental contaminants. Selenium 
concentrations in water from the lower San Joaquin River system are at 
levels that can cause bio-accumulation in fish species, which result in 
reproductive impacts. In 1998, in a rare occurrence, splittail were 
found in Mud Slough and Salt Slough (tributaries to the lower San 
Joaquin River). Composite samples of these fish from four sites were 
analyzed for selenium. At Mud Slough upstream of the San Luis Drain 
discharge, a composite sample of four splittail had a selenium 
concentration of 4.95 parts per million (ppm). At Mud Slough below the 
discharge, selenium in a composite of seven fish was 7.08 ppm while at 
a third Mud Slough site further downstream a two fish composite had 5.2 
ppm. At Salt Slough, ten splittail were composited and had selenium at 
3.19 ppm. The Service has determined, based on studies of its effects 
on salmonids, that negative effects of selenium on splittail begin to 
be seen at a level ranging from 3 to 9 ppm.
    Selenium is readily bioaccumulated in the introduced Asiatic clam 
(Potamocorbula amurensis), the most common bivalve in the Delta. These 
clams have selenium concentrations ranging from 6 to 20 ppm, dietary 
concentrations known to cause severe reproductive problems in fish. 
These clams are, in turn, consumed by Sacramento splittail (Stewart et 
al. 2000). When splittail are exposed to this level of selenium a 
reduction in reproductive performance occurs, which results in poor 
post-hatch survivorship. This means that less splittail young are able 
to recruit to adulthood. The 1998 splittail data confirm that these 
fish are being exposed to harmful levels of selenium in their range 
along the San Joaquin River. Data presented by the U.S. Geological 
Survey and Stewart et al. (2000) at the CALFED Science Conference in 
October 2000 indicated selenium concentrations in the composite liver 
samples of splittail in Suisun Marsh at or nearing levels associated 
with adverse reproductive effects in fish.
    The relationship between the bio-accumulation of selenium in the 
clam and its predation by splittail is synergistically worsened because 
the clam, via its predation on typical splittail prey items such as 
estuarine copepods (Eurytemora affinis, and Acartia sp.) (Wimmerer and 
Pealva 2000), is emerging as an alternate food source for Delta fishes 
(Feyrer and Matern 2000).
    The Chinese mitten crab (Eriocheir sinensis), initially addressed 
in the final rule, remains present within the Delta. Although the 
interaction between this species and the splittail remain largely 
unknown, it is still considered a threat. Crabs will continue to 
interfere with salvage operations at the Central Valley Project (CVP) 
and State Water Project (SWP). Further, the burrowing activities of the 
crab can weaken levees. Splittail habitat would be lost if the weakened 
levees were repaired and armored with traditional riprap. Nonnative, 
invasive, and harmful species likely will continue to be introduced to 
the splittail's range and may have adverse effects as described above.
    Pesticides are also prevalent within the Delta and its tributaries 
due to runoff from agricultural lands and remain a threat. As with 
mercury and selenium, the long-lived, predatory splittail is highly 
susceptible to bioaccumulation of contaminants within the aquatic 
ecosystem. Over time, the splittail will exhibit reduced reproductive 
success, developmental abnormalities, reduced growth, and behavioral 
changes associated with the long-term exposure of the species to toxic 
chemical elements in the various streams throughout its range in the 
Central Valley.
    The Service believes that the splittail may remain vulnerable to 
natural events such as drought, because of the consistent, overall 
decline in population indices and severely constricted range and 
distribution. Since the publication of the final rule, several large 
water diversions have been screened to prevent entrainment of 
splittail. Still, numerous, smaller diversions remain unscreened and/or 
operated in a manner that does not minimize the threat to splittail. 
Though the CALFED Program has identified screening as a priority, 
funding has not been secured, nor has any definitive implementation 
schedule or plan been formulated.
    The variability of California's Mediterranean climate exacerbates 
the threats discussed above. Since the proposal to list the splittail, 
California has had relatively wet hydrologic conditions that benefit 
fish species. Because the splittail is a floodplain adapted species, a 
dramatic decline in abundance was demonstrated during the 1987-92 
drought. When another drought occurs splittail indices will again 
invariably drop.
    As the Service stated in the final rule, in the wet water year of 
1993, splittail should have been able to exploit flood plain habitat 
for spawning and rearing. However, since the reservoirs were relatively 
empty in that year, the rainfall filled the reservoirs instead of 
inundating habitat for splittail. As a result, the improvements in 
splittail abundance typical of wet water years were not evident in any 
of the splittail indices for 1993. This reservoir operation scenario 
could be repeated and may be exacerbated by reservoir operations 
intended to retain cold water pools for salmonids.
    Flood bypasses continue to be operated in a manner that harms 
splittail and their habitat. It has been documented that splittail use 
the Yolo and Sutter bypasses for spawning under certain hydrologic 
conditions. As recognized in the final rule, however, the bypasses are 
flood control facilities and are operated as such. The flood bypasses 
are only flooded when flows in the Sacramento River (Yolo Bypass) and 
Feather River (Sutter Bypass) reach a certain level. This inundation of 
the flood bypasses can occur at the wrong time of the year for 
splittail to take advantage of the spawning habitat. In addition, 
flooding of the bypasses may not occur for a long enough period of time 
to ensure successful splittail spawning. This constitutes a threat in 
that adult fish, having migrated to suitable spawning habitats in the

[[Page 2835]]

bypass, could be denied the opportunity to spawn. In those cases where 
adult splittail have successfully spawned, the resulting progeny could 
become trapped and killed. There also exists an unquantified threat to 
developing splittail from agricultural pesticides applied to crops 
within the bypass.
    In addition, the flood bypasses are not sufficiently contoured to 
ensure that fish can, as the water recedes, escape to the natural 
riverine and estuarine environment. As an example, in May 2000, up to 
1,000 juvenile splittail were trapped in a less than 2-acre borrow pit 
pond within the bypass. This artificial, temporary pond, with egress 
originally intended to be constructed, serves as evidence that the 
various existing borrow pits, agricultural facilities, and other 
natural sinks are and can be expected to continue to be a source of 
splittail mortality.
    In order for the bypasses to be considered a beneficial splittail 
spawning habitat, their threats to the species would need to be reduced 
substantially. Flood bypasses would need to be inundated for at least 
30 continuous days between March and April, pesticide use would have to 
be assessed and possibly, regulated, and entrainment hazards would need 
to be reduced.
    Also in regard to Factor E, and not addressed in the past, is the 
potential that interspecific competition is a threat to the splittail. 
Nonnative cyprinids and centrarchids, introduced into the splittail's 
range as bait and game fish, respectively, may occupy similar 
ecological niches, thus increasing competition for finite food 
resources. This threat is apart from the predatory pressure addressed 
under Factor C.
    The splittail is on a downward trend as shown by the abundance 
analysis. The species is facing threats to its habitat including loss 
of spawning habitat due to rock revetment, loss of habitat due to poor 
water quality and water diversions, as well as other threats mentioned 
above. The Service is seeking comment on the relationship between the 
data available and the listing of the species as threatened. We are 
also taking comments on the threats and/or measures which reduce those 
threats to determine whether continued listing is warranted. Finally, 
we seek comment regarding abundance of the splittail.

Comments from the Resources Agency

    The court requested that the Service provide a more thorough 
response to the California Resources Agency comments, specifically 
comments submitted by CDFG and DWR. The court also requested that the 
Service address other factors including the species population, range, 
abundance, and distribution. In addition, the court requested that the 
Service formally respond to the California Resources Agencies (CDFG and 
DWR) before making a final decision regarding the status of the 
splittail per section 4(I) of the Endangered Species Act. Section 4(I) 
states that when a state agency opposes a listing of a species by the 
Act, then the Federal agency shall write a letter to that state agency 
stating its decision. The Service shall respond to the state agencies 
if the Service determines that continued listing is warranted.
    (1) The CDFG comments submitted in July 1998 discussed a long-term 
and medium-term abundance trend. The long-term trend was based on 
summer townet and fall mid-water trawl survey data. CDFG states that 
these long-term trend data are consistent in showing no long-term trend 
in splittail abundance. The medium-term trend was based on surveys that 
started in the mid-1970s or later. CDFG divided the data sets into 
``small'' geographic areas and ``broad'' geographic areas. The data 
sets that were considered ``small'' were the CVP and SWP salvage data, 
Chipps Island Trawl, and the Suisun Marsh Survey data. The data sets 
that were considered ``broad'' were the Beach Seine, the Bay Study 
Otter and Midwater Trawl, and the FMWT.
    The Service cannot determine what method the CDFG used to calculate 
its results, nor define its terminology. For instance, the Service 
cannot determine from the comment if there was an overall trend with 
the medium-term data. The Service cannot determine if the methods used 
in the paper submitted by the CDFG were peer-reviewed or if the method 
used by CDFG has been subjected to a statistical test. The Service 
seeks further information from CDFG explaining and defining its trend 
theory, and its calculations and methodology.
    (2) The CDFG and DWR discuss the increased range of the splittail 
in the past years and speculate that splittail may remain upstream in 
the Sacramento River over the summer. These data are based on the 
capture of two (2) splittail in August of 1997, one at the Red Bluff 
Division Dam and one at the Glenn-Colusa Irrigation District. In 
addition, the CDFG cite sporadic and small numbers of splittail 
captured on the Sacramento River. CDFG states that this information 
constitutes an expansion of range. CDFG discusses splittial in the 
lower San Joaquin, Petaluma River, Napa Marsh, and Coyote Creek.
    The Service acknowledges the presence of splittail in these areas 
during wet years and concurs that the splittail may use these areas 
during wet years. However, a few fish captured in these extreme areas 
does not constitute a viable population. These are questions relating 
to distribution for which the Service is seeking comments.
    (3) DWR stated its belief that the 1998 data would prove to be an 
exceptional year for the splittail, without providing or referring to 
complete 1998 data (i.e., through December 1998). It then speculated on 
how 1998 would be a good year for splittail, based on numbers of take 
at the export facilities.
    The Service determined that it would be unwise to speculate on data 
that were not complete at the time of the listing. However, now that we 
have the complete data sets for 1998, we re-analyzed the data and there 
is still an overall decline (using the four surveys) in abundance of 
splittail. In addition, the Resources Agency stated that the Service 
should withdraw the proposal to list the splittail, based on the 
preliminary results from 1998.
    (4) DWR also commented on the resiliency of the splittail. The 
Service addressed the resiliency issue in the final rule. The term 
resilience is 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 water years, high Delta outflow, and the presence of 
flooded vegetation. If these parameters are not present, then the 
splittail may not successfully spawn and exhibit low recruitment to the 
population during later years.
    (5) DWR and the State Water Contractors submitted additional 
comments by the CDFG in January 1999, six months after the close of the 
third comment period (July 1998), and after the final rule had been 
sent to Washington, D.C. for surname by the Directorate of the Service. 
A final rule is sent to Washington, D.C. only after it has been 
reviewed and revised as necessary by the Solicitor's Office and the 
California-Nevada Operations Manager. In any regard, the CDFG paper 
stated that 1998 resulted in record or near record age-0 splittail 
abundance for the summer townet, the FMWT, and the Bay study. These 
data could not be used for the Service's analysis because we used four 
data sets to complete the overall abundance decline and in July 1998 
only two were available. We have

[[Page 2836]]

subsequently used the complete 1998 data sets to perform an additional 
analysis, and our analysis shows a decline still present in the overall 
abundance of splittail. In addition, the CDFG re-iterated the expansion 
of the range of splittail, as it did in its July 1998 submittal. We 
responded to this comment in the final rule and previously in this 
document.

Other Court Requests

    The court has also requested that we provide an estimate of the 
current population size of splittail; determine whether or why the 
current population size is inadequate to prevent extinction in the near 
future; determine the rate of population decline of splittail; and to 
identify the minimum viable population size.
    The Service appropriately did not ``calculate the risk of 
extinction'' because there is no methodology of which we are aware for 
making such a calculation suitable for the splittail. Instead, the 
Service determined that the splittail was likely to become in danger of 
extinction within the foreseeable future. After evaluation of 
population status (abundance), the Service made the determination that 
the species would likely become endangered within the foreseeable 
future based upon an analysis of threats to the species. As the 
abundance information indicates, the species is in decline. There is no 
scientific formula for determining extinction. However, the threats 
analysis, which consists of an evaluation of the five listing factors, 
coupled with abundance decline led the Service to reach its 
professional conclusion that although not endangered, because 
extinction is not imminent, the species was threatened. The species 
habitat and health is continuously being and has been permanently 
impacted as a result of the threats identified herein.

Hanson Declaration

    On behalf of plaintiffs, Dr. Charles Hanson submitted a declaration 
to the court (Hanson Declaration) making several assertions regarding 
methods for estimating population size, population viability, minimum 
habitat requirements, and calculated rates of extinction for the 
splittail. The Service is familiar with each of these methods in 
general and would agree that these types of analyses may be appropriate 
for certain species. However, it is the Services's opinion that none of 
these methods are scientifically supportable for evaluating splittail, 
and therefore, would not provide useful indicators of splittail 
population health. The Hanson Declaration discusses the need for 
utilizing several analytical methodologies to evaluate the risk of 
extinction. Models such as those to which the Hanson Declaration may be 
referring are developed over time and, if using recognized modeling 
protocols, need validation and verification, and in addition, are 
species specific. Also, a critical assumption that must be developed to 
utilize analytical methods such as those to which the Hanson 
declaration may be referring is an absolute value of population size. 
Best available information indicates there is no absolute value of 
population size for this species. The Service is not aware of a model 
that now exists for this species, nor was such a model identified 
during the comment periods. No specific alternative methodology was 
described or presented during the comment period nor did the Hanson 
Declaration identify any model or methodology that could be used or 
modified to conduct such an analysis. As such, it is our opinion, the 
use of such a methodology is not scientifically justified for this 
species. The Service requests comment on the methods and models 
suggested by the Hanson Declaration.
    Contrary to the Hanson Declaration, we do not believe that an 
analysis regarding population estimates would be appropriate for 
splittail. To develop a population estimate, one must be able to count 
individuals of the species and have confidence in the methodology, one 
must know how many are born; and how many may recruit to the population 
the next year. We are not aware of any scientifically supportable 
methods developed to date to count all individuals of splittail.
    Additionally, the sampling methods utilized to capture splittail 
have not been refined enough to take a subset of individuals and 
extrapolate that number to the entire population range wide. As noted 
in both the Hanson Declaration and the Service's analysis, the 
population of splittail is represented in the form of an index. By 
definition an index is a representation of population levels, not an 
absolute number. This is the state of the science for splittail at this 
time.
    Splittail do not effectively use the fish ladders that are in place 
for salmon, and whereas adult salmon can be counted during their 
upstream migration, adult splittail cannot be counted in this manner. 
The species has a low stock recruitment because of the environmental 
variation found throughout the Central Valley of California, and one 
cannot predict with any statistical significance, what will be a good 
year for splittail. In addition, splittail have a very poor stock 
recruitment relationship. That is to say one can not predict with any 
scientific certainty what the population of a species is by the number 
of juveniles produced in a given year. Nor can one predict with any 
certainty what the juvenile population in a given year would be, even 
if the adult spawning population was known. As such it is pure 
speculation to conduct a population viability analysis for this 
species.
    There have been attempts to calculate a given population size 
during a specific snapshot in time. This kind of analysis is generally 
based on monitoring data that are very near term and thereby more 
reliable for developing a general indication of population size at that 
given time. Such an analysis can not be carried further as a predictor 
of overall population size or viability at some unknown time in the 
future because one can not predict the environmental variables which 
appear to control the reproductive success of this species.
    The Hanson Declaration refers to the need to quantify the minimum 
habitat area required to avoid extinction. The Service prepared and 
finalized the Recovery Plan for the Sacramento/San Joaquin Delta Native 
Fishes in 1996, which specifically included splittail that was a 
proposed species at the time. There was substantial discussion of 
habitat requirements for splittail and, although the plan does not 
specifically quantify the minimum habitat area necessary, in part 
because it can not be scientifically determined, it does specifically 
quantify abundance criteria that would be necessary to consider 
delisting the species. In developing the recovery plan for the Delta 
native fishes the Service convened a recovery team. If sufficient 
scientific support were available to quantify the minimum habitat needs 
for the species, that information would have almost certainly been 
provided by the recovery team, of which Dr. Hanson was a member. The 
splittail is dependant on a highly variable ecosystem, both temporally 
and spatially. Habitat is but one component of that very complex 
ecological system that would lead the species to abundance levels 
necessary for such a consideration. An additional component to be 
considered to delist the splittail would be if the threats that lead to 
listing in the first place were no longer evident.
    In the court order dated June 2000, it states that the Service has 
not shown a relationship between the data and the listing of the 
splittail, because we did not estimate a minimum viable population nor 
estimate a population

[[Page 2837]]

size for the splittail. As previously indicated, the methods stated in 
the Hanson Declaration are not applicable to this species. There is no 
stock-recruitment relationship identified for this species. Therefore, 
such a biological measure cannot be used for splittail.
    The Service is soliciting comment on the current population size of 
splittail, and how one could calculate that with statistical rigor; how 
the Service could determine whether the current population size is 
adequate or inadequate to prevent extinction in the near future; how it 
can determine the rate of population decline of splittail; and how it 
can identify the minimum viable population of the splittail.

CALFED and Other Environmental Processes

    The Service is also seeking comment on the relevance of a final 
CALFED decision in the context of how the implementation of the CALFED 
program will address, and the extent to which it will address, the 
threats to splittail. In addition, we are also seeking comment on any 
other environmental program, such as CVPIA, and how it may address the 
threats to the splittail.
    The threats to the splittail could be affected by implementation of 
the CALFED Bay-Delta Program (CALFED Program). The Record of Decision 
(ROD) for the CALFED Program was signed in August 2000. The CALFED 
Program is a long-term comprehensive plan to restore ecosystems and 
improve water management for beneficial uses of the San Francisco Bay 
and Sacramento-San Joaquin River Delta (Bay-Delta). The CALFED Program 
was developed by 14 Federal and State agencies with management 
responsibilities in the San Francisco Bay and Sacramento-San Joaquin 
River Delta (Bay-Delta). These agencies seek to address issues in four 
problem areas--ecosystem quality, water quality, water supply, and 
levee system integrity.
    Several components of the CALFED Program will influence the status 
of the splittail, including the Ecosystem Restoration Program Plan 
(ERPP), the Multi-Species Conservation Strategy (MSCS), the Water 
Quality Program Plan, and an Environmental Water Account. The ERPP and 
MSCS identify recovery goals for 44 species in the Bay-Delta region, 
including a goal to ``Recover'' the splittail. In the context of the 
CALFED Program the term ``recover'' means the program will implement 
all necessary measures, within its discretion, to recover the 
splittail, including implementation of Service recovery plans. The 
current agreements to provide assets for the EWA and $150 million 
annually for the ERPP extend only 4 years from the date the ROD was 
signed. Therefore, the programs and agreements embodied in the ROD for 
the CALFED Program have great potential to aid the recovery of the 
splittail.
    The likelihood the CALFED Program will achieve its recovery 
objectives is influenced by available funding and the continuing 
agreement among the parties involved to fully implement the program. 
Agreements to fund the ERPP and provide assets for the EWA extend only 
four years from the date the ROD was signed, after which the CALFED 
program will need to be reevaluated. Full implementation of the 30-year 
program will require both State and Federal funding and is expected to 
require both annual appropriations by Congress and continued funding by 
the State of California. To date, Congress has not appropriated funding 
for Federal responsibilities under the CALFED Program for fiscal year 
2001. Therefore, the program will be funded solely by State funding 
sources (including, but not limited to propositions 204, 12, and 13).
    In addition, the Service it seeking comment on Implementation of 
the Central Valley Project Improvement Act (CVPIA). CVPIA provisions 
potentially can affect threats to the splittail. The CVPIA amends 
previous authorizations of the California Central Valley Project (CVP) 
to include fish and wildlife protection, restoration, and mitigation as 
project purposes having equal priority with irrigation and domestic 
water supply, and fish and wildlife enhancement having equal priority 
with power generation. Provisions of the CVPIA to benefit fish and 
wildlife habitat include protection and restoration of natural channel, 
riparian, and wetland habitats [sections 3406(b)(1) and 3406(d)], 
dedication and management of 800,000 acre-feet of CVP yield [section 
3406(b)(2)], acquisition of additional water supplies to supplement the 
amount dedicated [section 3406(b)(3)], modification of CVP operations 
[sections 3406(b)(1) and 3406 (b)(19)], removal of fish migration 
barriers [sections 3406(b)(10) and 3406(b)(17)], screening of water 
diversions [section 3406(b)(21)], and acquisition of land and 
associated water rights [section 3408(h)], among others.
    None of the CVPIA provisions specifically target splittail and, to 
date, no actions have been implemented under the CVPIA specifically to 
benefit this species. Because major portions of the CVPIA target 
anadromous fish, most of the benefits to splittail would be incidental 
to actions taken to benefit anadromous fish. Splittail can benefit from 
shaded streamside habitat and wetlands resulting from stream channel, 
riparian, and wetland habitat improvements within the splittail's 
spawning range. Management of dedicated, supplemental, and reoperated 
CVP yield can benefit splittail if water releases are made at times and 
locations that coincide with splittail spawning and rearing, and if the 
releases are adequate to flood vegetated areas adjacent to stream 
channels. Removal of migration barriers can provide additional 
splittail habitat where potential habitat is blocked, and entrainment 
of splittail at diversions can be reduced if fish screens are installed 
in splittail habitat areas.
    All CVPIA mitigation and restoration actions are contingent on 
available funding. Funding sources include the CVPIA Restoration Fund, 
state funds provided to meet CVPIA cost share requirements, and 
additional Federal funds appropriated by Congress. The total annual 
funding projected for the CVPIA's preferred alternative was about $90 
million, but these funds are not guaranteed and will require 
appropriation by pertinent state and Federal governments.
    The Service is taking comments on the CALFED, CVPIA, and any other 
environmental process and how they may or may not alleviate some of the 
threats that are facing the species.
    Written comments on all of the above issues may be submitted until 
February 12, 2001 to the Service office in the ADDRESSES section.

    Author: The primary authors of this notice are Stephanie Brady and 
Jason Douglas (see ADDRESSES section).

References

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

Authority

    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C.1531 et seq.)

    Dated: January 2, 2001.
Rowan W. Gould,
Manager--California/Nevada Operations Office.
[FR Doc. 01-970 Filed 1-11-01; 8:45 am]
BILLING CODE 4310-55-P