[Federal Register Volume 78, Number 11 (Wednesday, January 16, 2013)]
[Proposed Rules]
[Pages 3381-3389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00809]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 121210693-2693-01]
RIN 0648-BC68


Endangered and Threatened Species: Designation of a Nonessential 
Experimental Population of Central Valley Spring-Run Chinook Salmon 
Below Friant Dam in the San Joaquin River, CA

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; notice of availability.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose a 
rule to designate a nonessential experimental population of Central 
Valley spring-run Chinook salmon (Oncorhynchus tshawytscha) under 
section 10(j) of the Endangered Species Act (ESA) in portions of the 
San Joaquin River, and to establish take exemptions for the proposed 
nonessential experimental population for particular activities inside 
the experimental population's geographic range and outside of the 
current evolutionarily significant unit (ESU) designated boundary of 
the species in the San Joaquin River tributaries and in the Delta.
    A draft environmental assessment (EA) has been prepared on this 
proposed action and is available for comment (see ADDRESSES and 
INSTRUCTIONS section below).

DATES: To allow us adequate time to consider your comments on this 
proposed rule, they must be received no later than March 4, 2013. 
Comments on the EA must be received by March 4, 2013. Three public 
meetings will be held at which the public can make comments on the 
draft EA and proposed rule. The first meeting will be in Chico, CA on 
February 5, 2013, at the Chico Masonic Family Center, 1110 West East 
Avenue from 5:30 p.m. to 7:30 p.m. The second meeting will be in 
Fresno, CA on January 24, 2013, at the Fresno Metropolitan Flood 
Control District, Board Meeting Room, 5469 E. Olive Avenue from 5:30 
p.m. to 7:30 p.m. (The public should park in the front parking area 
(rear parking area closes at 5:30 p.m. with no exit after that time) 
and enter the door located on the west side of the front building). The 
third meeting

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will be in Los Banos, CA on January 25, 2013 at the Los Banos Community 
Center, 645 7th Street from 2 p.m. to 4 p.m.

ADDRESSES: You may submit comments on this proposed rule, identified by 
NOAA-NMFS-2012-0221 by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0221, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Elif Fehm-Sullivan, 
Fisheries Biologist, Protected Resources Division, Southwest Region, 
National Marine Fisheries Service, 650 Capitol Mall, Suite 5-100, 
Sacramento, California 95814.
     Fax: (916) 930-3629.
     Email: [email protected].
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are part of the 
public record and will generally be posted to http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    You may access a copy of the draft EA by one of the following:
     Visit NMFS' Reintroduction Web site at http://swr.nmfs.noaa.gov/sjrrestorationprogram/salmonreintroduction.htm.
     Call (916) 930-3723 and request to have a CD or hard copy 
mailed to you.
     Obtain a CD or hard copy by visiting NMFS' Central Valley 
office at 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814.
    Please see the draft EA for additional information regarding 
commenting on that document.

FOR FURTHER INFORMATION CONTACT: Elif Fehm-Sullivan, National Marine 
Fisheries Service, 650 Capitol Mall, Suite 5-100, Sacramento, 
California 95814 (916-930-3723) or Dwayne Meadows, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910 (301-427-8403).

SUPPLEMENTARY INFORMATION: 

Background Information Relevant to Experimental Population Designation

    In 1988, a coalition of environmental groups, led by the Natural 
Resources Defense Council (NRDC), filed a lawsuit challenging renewal 
of long-term water service contracts between the United States and the 
Central Valley Project (CVP) Friant Division contractors. After more 
than 18 years of litigation of this lawsuit, known as NRCD, et al., v. 
Kirk Rodgers, et al., a Settlement was reached (Settlement). On 
September 13, 2006, the Settling Parties, including NRDC, Friant Water 
Users Authority (now the Friant Water Authority (FWA)), and the U.S. 
Departments of the Interior and Commerce, agreed on the terms and 
conditions of the Settlement, which was subsequently approved by the 
U.S. Eastern District Court of California on October 23, 2006. The 
Settlement establishes two primary goals: (1) Restoration Goal--To 
restore and maintain fish populations in ``good condition'' in the 
mainstem San Joaquin River below Friant Dam to its confluence with the 
Merced River, including naturally reproducing and self-sustaining 
populations of salmon and other fish, and (2) Water Management Goal--To 
reduce or avoid adverse water supply impacts on all of the Friant 
Division long-term contractors that may result from the interim and 
restoration flows provided for in the Settlement. Paragraph 14 of the 
Settlement indicates that the Restoration Goal shall include the 
reintroduction of Central Valley spring-run Chinook salmon (hereafter, 
CV spring-run Chinook salmon) to the San Joaquin River between Friant 
Dam and its confluence with the Merced River.
    In 2009, as part of the Omnibus Public Land Management Act, 
Congress enacted the San Joaquin River Restoration Settlement Act 
(Public Law No. 111-11, 123 Stat. 1349) (SJRRSA), which ratified the 
terms of the litigation Settlement and provided additional authorities 
to the Department of the Interior to facilitate successful 
implementation of the Settlement. The SJRRSA provides that if the 
Secretary of Commerce (Secretary) concludes that a program to 
reintroduce CV spring-run Chinook salmon into the San Joaquin River can 
be implemented consistent with other requirements of the ESA, the 
reintroduction ``shall be [conducted] pursuant to Sec.  10(j)'' of the 
ESA.
    The proposed experimental population will occur in the San Joaquin 
River from its confluence with the Merced River upstream to Friant Dam 
and will include all sloughs, channels, and water ways that allow for 
CV spring-run Chinook salmon passage along the San Joaquin River and 
will also include portions of the Kings River, when high water years 
connect the Kings River with the San Joaquin River. While this 
experimental area is part of the species historical range, it is 
outside the current range of the CV spring-run Chinook salmon ESU.
    The CV spring-run Chinook salmon ESU (70 FR 37160; June 28, 2005) 
is listed as threatened under the ESA, and its threatened status was 
recently confirmed following completion of a 5-year review (NMFS, 
2011). The CV spring-run Chinook salmon ESU includes all naturally 
spawned populations of spring-run Chinook salmon in the Sacramento 
River and its tributaries, as well as the Feather River Fish Hatchery 
(FRFH) spring-run Chinook salmon program. We have issued protective 
regulations under section 4(d) of the ESA for CV spring-run Chinook 
salmon that prohibit their ``take'' unless otherwise authorized (50 CFR 
223.203).

Statutory and Regulatory Framework for Experimental Population 
Designation

    Section 10(j) of the ESA (16 U.S.C. 1539(j)) defines an 
experimental population as a population that has been authorized for 
release by the Secretary but only when, and at such times as, the 
population is wholly separate geographically from nonexperimental 
populations of the same species. The ESA allows the Secretary to 
authorize the release of ``experimental'' populations of listed species 
outside their current range if the release would ``further the 
conservation'' of the listed species. Section 10(j) also requires that 
before authorizing the release of an experimental population, the 
Secretary identify the experimental population by regulation and 
determine, based on the best available information, whether or not the 
experimental population is ``essential to the continued existence'' of 
the listed species (see section 10(j)(2)(B)).
    The U.S. Fish and Wildlife Service (USFWS) promulgated regulations 
to guide its implementation of section 10(j) (see 50 CFR 17.80 through 
17.84). While we do not have regulations governing the designation of 
experimental populations, we considered their regulations where 
appropriate in making the required determinations under section 10(j) 
and in formulating this proposed rule to designate and release an 
experimental population of CV spring-run Chinook salmon into the

[[Page 3383]]

San Joaquin River upstream of the Merced River confluence. Although the 
USFWS regulations do not govern our proposal, the record demonstrates 
that our proposal would be consistent with the criteria of those 
regulations. We analyzed three key elements required by Section 10(j) 
in formulating this proposed rule.
    Element 1: In determining whether release of an experimental 
population of spring-run Chinook salmon into the San Joaquin River 
would further the conservation of the Central Valley spring-run Chinook 
ESU, we considered the effects of gathering broodstock on the extant 
populations of the ESU; the potential for the released population to 
survive in the foreseeable future; and the potential contribution of an 
experimental population to the recovery of the Central Valley spring-
run Chinook ESU.
    Element 2: An appropriate means to identify the experimental 
population, and
    Element 3: Whether the experimental population is essential to the 
continued existence of the species in the wild or not;
    In order to comply with Section 10011(c) of the San Joaquin River 
Restoration Settlement Act, we also considered any additional measures, 
appropriate to address management concerns under local conditions, and 
we considered a process for data collection and periodic review of the 
status of the experimental population.
    In applying the above considerations to the proposed designation 
and release of the experimental population of CV spring-run Chinook 
salmon into the San Joaquin River, we used the best available 
information as required by section 10(j). We discuss in more detail 
below how we considered each of these three elements.
    Section 10(j) of the ESA requires that an experimental population 
be treated as a threatened species under the ESA, with two exceptions 
that apply if an experimental population is not determined to be 
essential to the listed species' continued existence (i.e., 
nonessential): 1) section 7 of the ESA applies in a different manner as 
described below in this paragraph, and 2) critical habitat shall not be 
designated for that experimental population. If the experimental 
population is determined to be nonessential, then section 10(j) 
requires that we apply the section 7 consultation provisions as if the 
population is a species proposed for listing. This means that the 
section 7(a)(2) consultation requirement does not apply to any 
experimental population of CV spring-run Chinook salmon that we 
determine is nonessential. The only provisions of section 7 that apply 
to a nonessential experimental population (NEP) are sections 7(a)(1) 
and 7(a)(4). Section 7(a)(1) requires that Federal agencies use their 
authorities in furtherance of the purposes of the ESA by carrying out 
programs for the conservation of threatened and endangered species. 
Section 7(a)(4) requires Federal agencies to confer, rather than 
consult, with us on actions that are likely to jeopardize the continued 
existence of a species proposed to be listed. The results of a 
conference are advisory in nature.
    Section 7 of the ESA does not apply to activities undertaken on 
private land unless they are authorized, funded, or carried out by a 
Federal agency. The associated take exemptions proposed below 
associated with the experimental population will provide sufficient 
protections to reduce effects of existing or anticipated Federal or 
State actions, or private activities within or adjacent to the 
experimental population area.

Will an experimental population designation further the conservation of 
the species?

    The ESA defines ``conservation'' as ``the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provide pursuant 
to this [Act] are no longer necessary.'' We discuss in more detail 
below each of the factors we considered in determining if release of an 
experimental population would ``further the conservation'' of CV 
spring-run Chinook: We first considered the most appropriate source of 
fish to establish an experimental population. Reintroduction efforts 
have the best chance for success when the donor population has life 
history characteristics compatible with the anticipated environmental 
conditions of the habitat into which fish will be reintroduced. 
Populations found in watersheds closest to the reintroduction area are 
most likely to have adaptive traits that will lead to a successful 
reintroduction, and therefore, only spring-run Chinook salmon 
populations found in the Central Valley will be used in establishing 
the experimental population in the San Joaquin River.
    Functionally independent populations of CV spring-run Chinook 
salmon occur in Deer, Mill, and Butte creeks. The Feather River CV 
spring-run Chinook salmon population is also supplemented by operation 
of the FRFH. The Deer and Mill creek population levels are at a high 
risk of extinction and special care and consideration will be used when 
considering these fish as a donor source for reintroduction into the 
San Joaquin River. The Butte Creek CV spring-run Chinook salmon 
population is considered to be at a low risk of extinction and has the 
largest run size of the three major CV spring-run Chinook salmon 
populations in the Central Valley, thus it may be possible to remove 
fish from this population in years with high adult returns (NMFS, 
2011).
    Fish produced from the FRFH specifically for the reintroduction are 
proposed to be the initial source of individuals to establish an 
experimental population of CV spring-run Chinook salmon in the San 
Joaquin River. We would later consider diversifying the donor stock 
with fish from the naturally spawning population in other streams like 
Butte Creek if and when those populations can sustain the removal of 
fish. Such diversification would be subject to ESA review.
    In determining whether release of the proposed experimental 
population would further the conservation of CV spring-run Chinook, we 
also considered the potential for the released population to survive in 
the foreseeable future. The Central Valley drainage as a whole is 
estimated to have supported spring-run Chinook salmon returns as large 
as 600,000 fish between the late 1880s and 1940s (CDFG, 1998). However, 
the CV spring-run Chinook salmon runs in the San Joaquin River were 
extirpated as a direct result of the completion of Friant Dam and the 
associated operation of the Friant-Kern and Madera irrigation canals 
which caused the river to run dry in many locations. As a result of 
these impacts, the last substantial CV spring-run Chinook salmon 
spawning cohort (numbering >1,900) returned in 1948 (Yoshiyama et al., 
1996). Central Valley spring-run Chinook salmon were originally most 
abundant in the San Joaquin River basin where the run ascended to high-
elevation streams fed by snow-melt where they over-summered until the 
fall spawning season (Yoshiyama et al., 1996). Construction of other 
low elevation dams in the foothills of the Sierra Nevada on the 
American, Mokelumne, Stanislaus, Tuolumne, and Merced rivers extirpated 
CV spring-run Chinook salmon in these watersheds as well (CDFG, 1998).
    NMFS' Public Draft Recovery Plan for Central Valley salmonids 
characterizes the San Joaquin River basin below Friant Dam as having a 
high potential to support a spawning population of reintroduced CV 
spring[hyphen]run Chinook salmon with implementation of the San

[[Page 3384]]

Joaquin River Restoration Program (SJRRP). The Settlement establishes a 
framework for accomplishing the Restoration Goal which includes channel 
and structural modifications along the San Joaquin River below Friant 
Dam and releases of water from Friant Dam downstream to the river's 
confluence with the Merced River. Based on the available information, 
we believe that implementation of these actions will create habitat 
conditions in the San Joaquin River from Friant Dam to its confluence 
with the Merced River sufficient to support the establishment of CV 
spring[hyphen]run Chinook salmon populations.
    In addition to actions undertaken by the SJRRP, there are many 
Federal and State laws and regulations that will also help ensure the 
establishment and survival of the experimental population by protecting 
aquatic and riparian habitat. Section 404 of the Clean Water Act (CWA) 
(40 CFR parts 100 through 149) requires avoidance, minimization, and 
mitigation for the potential adverse effects of dredge and fill 
activities within the nation's waterways. Section 404(b) of the CWA 
requires that section 404 permits are granted only in the absence of 
practicable alternatives to the proposed project, which would have a 
less adverse impact on the aquatic ecosystem. CWA section 401 provides 
protection against adverse water quality conditions. In addition, 
construction and operational storm water runoff is subject to 
restrictions under CWA Section 402 and state water quality laws. Also 
the Magnuson-Stevens Fishery Conservation and Management Act, as 
amended (16 U.S.C. 1801 et seq.), requires that Essential Fish Habitat 
(EFH) be identified and Federal action agencies must consult with NMFS 
on any activity which they fund, permit, or carry out that may 
adversely affect EFH. Freshwater EFH for Pacific salmon in the 
California Central Valley includes waters currently or historically 
accessible to salmon within the Central Valley ecosystem as described 
in Myers et al. (1998), which includes the area where this NEP is being 
proposed.
    At the state level, the California Fish and Game Code section 1600, 
et seq. and the California Environmental Quality Act (Pub. Resources 
Code sections 21000 et seq.) (CEQA) set forth criteria for the 
incorporation of avoidance, minimization, and feasible mitigation 
measures for on-going activities as well as for individual projects. 
Section 1600 et seq. was enacted to provide conservation for the 
state's fish and wildlife resources and includes requirements to 
protect riparian habitat resources on the bed, channel, or bank of 
streams and other waterways. Section 1600 et seq. requires a person to 
notify the California Department of Fish and Wildlife (CDFW) 
(previously called California Department of Fish and Game until Dec 31, 
2012) before substantially diverting or obstructing the natural flow of 
a river or stream. The CDFW then has the opportunity to determine 
whether the activity may substantially adversely affect an existing 
fish or wildlife resource and issue a final agreement that includes 
reasonable measures necessary to protect the resource (California Fish 
and Game Code Section 1602). Under CEQA, no public agency shall approve 
or carry out a project without identifying all feasible mitigation 
measures necessary to reduce impacts to a less than significant level, 
and shall incorporate such measures absent overriding considerations. 
In addition, protective measures, including programs for strategic 
screening and participation in habitat conservation programs, will be 
implemented in conjunction with SJRRP activities and are intended to 
provide a net benefit to the reintroduction.
    The SJRRP restoration actions, in combination with the protective 
measures proposed in this rule, as well as compliance with existing 
Federal, State and local laws, statutes, and regulations, including 
those mentioned above, are expected to ensure the survivability of the 
experimental population in the San Joaquin River into the foreseeable 
future.
    In addition, we considered the potential contribution of an 
experimental population toward recovery of the CV spring-run Chinook 
ESU. NMFS' draft recovery plan for Central Valley salmon and steelhead 
contains specific management strategies for recovering CV spring-run 
Chinook salmon that include securing existing populations and 
reintroducing populations into historically occupied habitats, 
including the San Joaquin River. Establishing an experimental 
population of CV spring-run Chinook salmon in the San Joaquin River 
that persist into the foreseeable future is expected to reduce the 
species' overall extinction risk from natural and anthropogenic factors 
by increasing its abundance, productivity, spatial structure, and 
diversity within the Central Valley. These expected improvements in the 
overall viability of CV spring-run Chinook salmon, in addition to other 
actions being implemented throughout the Central Valley, will 
contribute to the species recovery.
    In light of the foregoing, we conclude that release of the proposed 
experimental population would further the conservation of CV spring-run 
Chinook salmon.

Identification of the Experimental Population

    Section 10(j) requires that the experimental population be 
designated only when, and at such times, as it is geographically 
separate from nonexperimental populations of the same species. We are 
proposing to designate the experimental population area for 
experimental CV spring-run Chinook salmon population as the San Joaquin 
River from its confluence with the Merced River upstream to Friant Dam, 
including all sloughs, channels, and water ways that connect the San 
Joaquin River and provide passage for the species. In addition, the 
experimental area includes portions of the Kings River in high water 
years that provide connectivity between the Kings River with the San 
Joaquin River. The proposed experimental population area is within the 
species historical range, but it is presently unoccupied by CV spring-
run Chinook salmon and is outside the currently defined freshwater and 
estuarine boundary of the CV spring-run Chinook salmon ESU.
    False pathways (water ways that salmon follow that do not lead to 
spawning habitat) that fish may use as a result of restored flows have 
not yet been identified; however, the SJRRP includes actions to prevent 
or reduce straying to false pathways, and this proposed experimental 
population designation assumes that the SJRRP will take appropriate 
action to reduce losses of the experimental population caused by 
undesirable straying. In addition, we will be using other means of 
identifying fish that are part of the experimental population such as 
marking fish with specific fin clips or other methods (e.g., coded wire 
tags, genetic testing).

Is the experimental population essential to the continued existence of 
the species?

    Since we do not have regulations implementing section 10(j), we 
considered the USFWS regulations (50 CFR 17.80(b)), which define an 
essential experimental population as ``an experimental population whose 
loss would be likely to appreciably reduce the likelihood of the 
survival of the species in the wild.'' All other experimental 
populations are classified as nonessential. While we are not bound by 
the definition of ``essential'' in the USFWS regulations, we have

[[Page 3385]]

determined it is appropriate for use in this proposed rule.
    In making the determination whether the proposed experimental 
population of CV spring-run Chinook salmon is essential, we used the 
the best available information as required by ESA section 10(j)(2)(B). 
Furthermore, we considered the geographic location of the proposed 
experimental population in relation to other populations of CV spring-
run Chinook salmon, the source of fish that will be used to establish 
the experimental population (e.g., naturally spawning populations or 
FRFH stocks), and whether the removal of individuals from any donor 
population would appreciably reduce the likelihood of the existing 
listed species survival and recovery in the wild.
    Through our section 10 permitting authority and the section 7 
consultation process, we will also ensure that the use of CV spring-run 
Chinook salmon from any donor populations for release into the San 
Joaquin River is not likely to jeopardize the continued existence of 
the species in the wild. Currently NMFS has issued a 10(a)(1)(A) permit 
along with a section 7 Biological Opinion (2012) that reached a non-
jeopardy conclusion on the first five years of broodstock collection 
from FRFH.
    As noted above, there are several choices for source populations 
for this experimental population. Initially we will be using FRFH fish 
in excess to what is needed for Feather River operations. If we 
consider using CV spring-run Chinook salmon from naturally spawning 
populations, we will remove only small numbers of fish from natural 
populations that we consider to be viable and at a low risk of 
extinction. In addition, a captive broodstock program is being 
established as part of the SJRRP to augment and supplement the 
establishment of experimental populations in the San Joaquin River. 
Over time, we expect the captive broodstock at the San Joaquin River 
conservation hatchery will produce sufficient numbers of eggs and 
juveniles to support reintroduction actions, and will reduce the need 
for fish to be taken from existing hatchery or natural populations in 
the Sacramento River basin.
    The San Joaquin River is substantially geographically separated 
from the watersheds that support extant populations of CV spring-run 
Chinook salmon in the Sacramento River basin. We expect that any CV 
spring-run Chinook salmon reintroduced to the San Joaquin River will 
imprint on this river and would therefore be unlikely to stray into the 
Sacramento River basin and interact with extant populations found in 
that watershed. Thus it is expected that the proposed experimental 
population will exist as a population independent from those in the 
Sacramento River basin and will not contribute to their survival.
    Based on these considerations, we conclude that the loss of the 
proposed experimental San Joaquin River population of CV spring-run 
Chinook salmon is not likely to appreciably reduce the likelihood of 
the survival of the species in the wild. Accordingly, this population 
will be considered nonessential under this designation.

Additional Management Restrictions, Protective Measures, and Other 
Special Management Considerations

    The ESA defines ``take'' to mean: harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or attempt to engage in 
any such conduct. For threatened species such as the proposed NEP of CV 
spring-run Chinook salmon, the ESA does not specifically prohibit take, 
but ESA section 4(d) (16 U.S.C. 1533(d)) provides that the Secretary 
shall issue protective regulations he or she deems necessary and 
advisable for species conservation. Such protective regulations may, if 
appropriate, include the take prohibitions of section 9 of the ESA.
    Therefore, in conjunction with our proposal to designate and 
authorize the release of a CV spring-run Chinook salmon NEP in the San 
Joaquin River, we also propose to promulgate protective regulations 
under section 4(d) of the ESA that would apply to the NEP. To ensure 
that the NEP has protections from activities that are not lawful under 
Federal, State or local laws and regulations, we propose to apply all 
take prohibitions listed under ESA sections 9(a)(1)(A) through 
9(a)(1)(G), except for section 9(a)(1)(C) which involves the irrelevant 
issue of take upon the high seas, to the experimental population when 
it is within the experimental population area. Such activities include 
those resulting in direct intentional take or harm or illegal 
activities that result in incidental take or harm. These prohibitions 
would apply to all CV spring-run Chinook salmon in the experimental 
population area that have intact adipose fins as well as those that are 
adipose fin-clipped.
    In addition, we are proposing that the unintentional take of CV 
spring-run Chinook salmon in the experimental population area that is 
caused by otherwise lawful activities will be exempted from the take 
prohibitions under section 9. Similarly, this proposed rule proposes to 
exempt handling of fish in the experimental population for salvage/
rescue and scientific research subject to specific requirements. We are 
proposing to provide an exemption from the section 9 take prohibitions 
for specified scientific research activities conducted by the State of 
California that is consistent with the existing state 4(d) research 
programs established for listed salmon, making use of the system 
already in place. Federal, State, and private-sponsored research 
activities for scientific research or enhancement purposes that are not 
covered under the exceptions, criteria for exceptions, and reporting 
requirements or exemptions provided by NMFS-approved 4(d) programs 
above, may take CV spring-run Chinook salmon in the NEP pursuant to the 
specifications of an ESA section 10 permit. Section 9(a)(1)(B) take 
prohibitions would not apply to ongoing research activities if an 
application for an ESA section 10(a)(1)(A) permit is received by NMFS, 
preferably through the NMFS online application Web site.
    Questions regarding whether specific activities will constitute a 
violation of the section 9 take prohibition, and general inquiries 
regarding prohibitions and permits, should be directed to NMFS (see 
ADDRESSES).
    As noted above, we propose to prohibit the intentional take of CV 
spring-run Chinook salmon in the experimental population area by 
angling. We intend to work with CDFW to review fishing regulations in 
the geographic area in order to minimize the impact of this prohibition 
on current angling on other species. In the future, if the experimental 
population becomes established, we may consider allowing limited 
harvest of CV spring-run Chinook salmon in the experimental population 
through a Fishery Management and Evaluation Plan developed by CDFW and 
approved by NMFS.

Special Take Exemptions Outside of the Experimental Population Area

    Under the SJRRSA, the reintroduction of an experimental CV spring-
run Chinook salmon population to the San Joaquin River must not impose 
more than de minimis water supply reductions, additional storage 
releases, or bypass flows on unwilling third parties. The SJRRSA 
defines ``third party'' to mean persons or entities diverting or 
receiving water pursuant to applicable State and Federal laws which 
includes CVP contractors outside of the Friant Division of the CVP and 
the State Water Project (SWP) contractors. Because the proposed 
reintroduction under the SJRRSA cannot impose any more than de minimis 
effects onto third

[[Page 3386]]

parties and some of these third parties operate outside of the proposed 
experimental population area, this proposed rule also extends special 
take exemptions to third parties outside of the experimental population 
area geographic location. These proposed special take exemptions will 
apply to fish that originate from the San Joaquin River, including the 
experimental area above the confluence with the Merced River. Spring-
run Chinook salmon that are part of the threatened CV spring-run 
Chinook salmon ESU (50 CFR 223.102), and are known to occur in the 
area, will be exempt from take prohibitions for activities related to 
diverting or receiving water pursuant to applicable State and Federal 
laws, but otherwise would continue to be covered by the take 
prohibitions applicable to the non-experimental part of the ESU. The 
proposed special take exemptions for CV spring-run Chinook salmon that 
originate from the San Joaquin River would address areas downstream 
from the confluence of the Merced and San Joaquin rivers, including all 
tributaries to the San Joaquin River and in the south Delta.
    For take at the CVP and SWP facilities in the Delta, NMFS will 
annually calculate and document the proportionate contribution of CV 
spring-run Chinook salmon originating from the reintroduction to the 
San Joaquin River. NMFS will document this calculation by January 15 
each year and will describe the method for calculating and deducting 
this share of CV spring-run Chinook salmon take from the operational 
triggers and incidental take statements associated with the June 2009 
Biological Opinion on the Long-term Operations of the CVP and SWP or 
subsequent future Biological Opinions. The intent of this proposed 
exemption is to ensure that the proposed experimental reintroduction 
will not impose more than a de minimis impact on water supply, storage 
releases and bypass flows for unwilling third parties due to the 
reintroduction.

Process for Periodic Review

    Monitoring and analysis is necessary to gauge the progress of the 
proposed reintroduction program and to provide information for 
decision-making and adaptive management. Fish passage, fish biology, 
aquatic habitat, and conservation hatchery facility operations will be 
the primary focus of the monitoring (FMP, 2009).
    Fish passage monitoring will focus on addressing a variety of 
issues important to successful reintroduction. These issues consist of 
measuring fish passage efficiency, smolt injury and mortality rates, 
and adult river passage to spawning areas. Passive integrated 
transponder tags and radio tags will be used to evaluate and monitor 
fish passage effectiveness. Biological evaluation and monitoring will 
concentrate on adult escapement and spawning success, competition with 
resident species, predation, disease transfer, smolt production, 
harvest, and sustainability of natural runs. Habitat monitoring will 
focus on long-term trends in the productive capacity of the 
reintroduction area (i.e., habitat availability, habitat effectiveness, 
riparian condition) and natural production (the number, size, 
productivity, and life history diversity) of CV spring-run Chinook 
salmon in the experimental population area.
    Monitoring at the conservation hatchery facility will focus on 
multiple issues important to the quality of fish collected and produced 
for use in the reintroduction program. CDFW will be primarily 
responsible for monitoring conservation hatchery facility operations. 
Monitoring activities will consist mainly of tracking broodstock 
sources; disease history and treatment; pre-release performance such as 
survival, growth, and fish health by life stage; the numerical 
production advantage provided by the conservation hatchery facility 
program relative to natural production; and success of the conservation 
hatchery facility program in meeting the programs objectives.
    While this monitoring is being conducted for purposes of making the 
reintroduction effort successful, we will use the information to also 
determine if the experimental population designation is causing any 
harm to CV spring-run Chinook salmon that are part of the threatened 
ESU and their habitat, and then, based on this and other available 
information, determine if any changes to the experimental population 
designation may be warranted. Any contribution that an experimental 
population might make to the overall viability of CV spring-run Chinook 
salmon would be considered in future status assessments required under 
the ESA.

Experimental Population Findings

    Based on the best available scientific information, we have 
determined that the designation and release of a NEP of CV spring-run 
Chinook salmon in the San Joaquin River basin below Friant Dam will 
further the conservation of CV spring-run Chinook salmon. Fish used for 
the reintroduction will rely on FRFH hatchery production or fish 
produced from a conservation hatchery facility from limited collection 
of wild fish, and loss of some fish will not reduce the survival and 
recovery of CV spring-run Chinook salmon. The collection of wild fish 
will be permitted only after issuance of permits under section 
10(a)(1)(A) of the ESA that ensure that any such collections will not 
jeopardize the survival and recovery of the species. We have determined 
that this experimental population is nonessential because it is not 
necessary for the continued survival of the CV spring-run Chinook 
salmon; however, the population is expected to contribute to the 
recovery of CV spring-run Chinook salmon if the reintroduction is 
successful. This experimental population designation and release is 
being implemented in association with the reintroduction efforts called 
for in the SJRRP and the Stipulation of Settlement. Actions of the 
SJRRP are intended to provide habitat conditions that will be 
sufficient to establish a CV spring-run Chinook salmon population in 
the San Joaquin River while at the same time ensuring that no further 
protections will be needed and that the reintroduction will not impact 
landowners and third parties as defined by the SJRRSA.
    The success of the reintroduction of CV spring-run Chinook salmon 
in the experimental population area will be monitored as part of the 
SJRRP. We will assess the contribution of the NEP to the status of the 
species during the required five year status review of the CV spring-
run Chinook salmon ESU. This information will be used by NMFS to 
determine if changes to the NEP designation may be warranted.
    As previously noted, we considered the Fish and Wildlife Service's 
regulations and applied them only where appropriate in this proposed 
rule. We believe that our identification of the proposed experimental 
population, our finding that release of the proposed experimental 
population would further the conservation of CV spring-run Chinook, and 
our finding that the proposed experimental population is not essential 
to the continued existence of the listed species would be identical had 
we strictly applied all of the Fish and Wildlife Service's 10(j) 
regulations.

Public Comment

    We want the final rule to be as effective and accurate as possible, 
and the final EA to evaluate the potential issues and reasonable range 
of alternatives. Therefore, we invite the public, State, Tribal, and 
government agencies, the scientific community, environmental groups, 
industry, local landowners, and all interested parties to provide 
comments on the proposed rule

[[Page 3387]]

and EA. We request that submitted comments be relevant to the 
reintroduction and experimental population designation and not include 
comments on the SJRRP as a whole, which is beyond the scope of the 
action described in this proposed rule. Comments should be as specific 
as possible, provide relevant information or suggested changes, the 
basis for the suggested changes, and any additional supporting 
information where appropriate. For example, you should tell us the 
numbers of the sections or paragraphs that are unclearly written, which 
sections or sentences are too long, the sections where you feel lists 
or tables would be useful, etc.
    Prior to issuing a final rule, we will take into consideration the 
comments and supporting materials received. The final rule may differ 
from the proposed rule based on this information and other 
considerations. We are interested in all public comments, but are 
specifically interested in obtaining feedback on:
    (1) The geographical boundary of the designated experimental 
population.
    (2) The extent to which the experimental population would be 
affected by current or future Federal, State, or private actions within 
or adjacent to the experimental population area.
    (3) Any necessary management restrictions, protective measures, or 
other management measures that we may have not considered.
    (4) The extent to which we have has provided protections for third 
parties as required by the SJRRSA.
    (5) Whether we should propose the experimental population as 
nonessential.
    (6) Whether the proposed designation furthers the conservation of 
the species and we have used the best available science in making this 
determination.

Information Quality Act and Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review pursuant to the 
Information Quality Act (Section 515 of Pub. L. 106-554) in the Federal 
Register on January 14, 2005 (70 FR 2664). The Bulletin established 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation with regard to certain types of information disseminated 
by the Federal Government. The peer review requirements of the OMB 
Bulletin apply to influential or highly influential scientific 
information disseminated on or after June 16, 2005. There are no 
documents supporting this proposed rule that meet this criteria.

Classification

Executive Order 12866

    This rule has been determined to be not significant under E.O. 
12866.
    Regulatory Flexibility Act (5 U.S.C. 601 et seq.):
    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
801 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities.
    We are certifying that this rule would not have a significant 
economic effect on a substantial number of small entities. The 
following discussion explains our rationale. The effect of the proposal 
would be to avoid the need for affected entities, including small 
entities, to obtain ESA permits or authorization to conduct otherwise 
lawful activities as a result of reintroduction of CV spring-run 
Chinook salmon to the San Joaquin River. We do not collect the data to 
be able to quantify the number or type of small entities within the 
area affected by this proposed rule. If this proposal is adopted, the 
area affected by this rule includes the San Joaquin River from Friant 
Dam to Mossdale County Park, San Joaquin County, California and 
associated water ways accessible to anadromous fish. The NEP area would 
include the San Joaquin River from Friant Dam downstream to the 
confluence with the Merced River. Private land ownership is significant 
in the NEP area. Land uses are primarily agriculture, recreation, and 
tourism.
    This proposed rule authorizes incidental take of CV spring-run 
Chinook salmon within the NEP area. The regulations implementing the 
ESA define ``incidental take'' as take that is incidental to, and not 
the purpose of, the carrying out of an otherwise lawful activity. 
Intentional take for negligent, or as a result of unlawful, activities 
would not be permitted. Intentional take other than for conservation 
purposes as described in the special rule are not authorized unless for 
research or educational purposes, which would require a section 10 
permit under the ESA. Because of the substantial regulatory relief 
provided by NEP designations, we do not expect this rule to have any 
significant effect on recreational, agricultural, or development 
activities within the NEP area.
    Additionally, the proposal would provide specific regulatory relief 
to persons or entities diverting or receiving water pursuant to 
applicable State and Federal laws, such that the reintroduction of CV 
spring-run Chinook salmon would not impose more than de minimus: Water 
supply reductions, additional storage releases, or bypass flows on 
these persons or entities, if unwilling. These exemptions include 
Central Valley Project contractors outside of the Friant Division of 
the Central Valley Project and the State Water Project. Because this 
proposal would require no additional regulatory requirements on small 
entities and would provide regulatory relief for activities within the 
affected area, the Chief Council for Regulation certified that this 
proposed rule would not have a significant economic effect on a 
substantial number of small entities.

Executive Order 12630

    In accordance with E.O. 12630, the proposed rule does not have 
significant takings implications. A takings implication assessment is 
not required because this proposed rule: (1) Would not effectively 
compel a property owner to have the government physically invade their 
property, and (2) would not deny all economically beneficial or 
productive use of the land or aquatic resources. This proposed rule 
would substantially advance a legitimate government interest 
(conservation and recovery of a listed fish species) and would not 
present a barrier to all reasonable and expected beneficial use of 
private property.

Executive Order 13132

    In accordance with E.O. 13132, we have determined that this 
proposed rule does not have federalism implications as that termed is 
defined in E.O. 31312.

[[Page 3388]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    OMB regulations at 5 CFR 1320, which implement provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal 
agencies obtain approval from OMB before collecting information from 
the public. A Federal 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 OMB control number. This proposed rule does 
not include any new collections of information that require approval by 
OMB under the Paperwork Reduction Act.

National Environmental Policy Act

    In compliance with all provisions of the National Environmental 
Policy Act of 1969 (NEPA), we have analyzed the impact on the human 
environment and considered a reasonable range of alternatives for this 
proposed rule. We have prepared a draft EA on this proposed action and 
have made it available for public inspection (see ADDRESSES section). 
All appropriate NEPA documents will be finalized before this rule is 
finalized.

Government-to-Government Relationship With Tribes (E.O. 13175)

    E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments, outlines the responsibilities of the Federal Government in 
matters affecting tribal interests. If we issue a regulation with 
tribal implications (defined as having a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes) we 
must consult with those governments or the Federal Government must 
provide funds necessary to pay direct compliance costs incurred by 
tribal governments.
    There are no tribally owned or managed lands included in the 
experimental population area. We have invited all possibly impacted 
tribes (letter dated November, 15, 2010, from Maria Rea, Central Valley 
Office Supervisor, NMFS) to discuss the proposed rule at their 
convenience should they choose to have a government-to-government 
consultation.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from National Marine Fisheries Service office 
(see FOR FURTHER INFORMATION CONTACT).

    Dated: January 9, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports.

    For the reasons set out in the preamble, we propose to amend part 
223, subpart B of chapter 1, title 50 of the Code of Federal 
Regulations, as set forth below.

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

0
2. Add Sec.  223.301 paragraph (b) to read as follows:


Sec.  223.301  Special rules--marine and anadromous fishes.

* * * * *
    (b) San Joaquin River CV spring-run Chinook Salmon Experimental 
Population (Oncorhynchus tshawytscha).
    (1) The San Joaquin River CV spring-run Chinook salmon population 
identified in paragraph (b)(5) of this section is designated as a 
nonessential experimental population under section 10(j) of the ESA.
    (2) Prohibitions. The prohibitions of section 9(a)(1) of the ESA 
(16 U.S.C. 1538 (a)(1)) relating to endangered species apply to fish 
that are part of the threatened, nonessential experimental population 
of CV spring-run Chinook salmon identified in paragraph (a)(4) of this 
section.
    (3) Allowable take of CV spring-run Chinook salmon in the 
Experimental Population Area:
    (i) Any taking of CV spring-run Chinook salmon provided that it is 
unintentional, not due to negligent conduct, and incidental to, and not 
the purpose of, the carrying out of an otherwise lawful activity. 
Examples of otherwise lawful activities include recreation, 
agriculture, municipal usage, and other similar activities, which are 
carried out in accordance with Federal, State, and local laws and 
regulations.
    (ii) Any taking of CV spring-run Chinook salmon by an employee or 
designee of NMFS, the USFWS, other Federal land management agencies, 
the California Department of Fish and Wildlife, or any other 
governmental entity if in the course of their duties it is necessary 
to: aid a sick, injured or stranded fish; dispose of a dead fish; or 
salvage a dead fish which may be useful for scientific study. Any 
agency acting under this provision must report to NMFS (see ADDRESSES 
section) the numbers of fish handled and their status on an annual 
basis.
    (iii) Any taking of CV spring-run Chinook salmon for scientific 
research or enhancement purposes by a person or entity with a valid 
section 10(a)(1)(A) permit issued by NMFS and a valid permit issued by 
the CDFW.
    (iv) Any taking of CV spring-run Chinook salmon for scientific 
research purposes by the CDFW provided that:
    (A) Scientific research activities involving purposeful take are 
conducted by employees or contractors of CDFW or as a part of a 
monitoring and research program overseen by or coordinated with CDFW.
    (B) CDFW provides for NMFS' review and approval a list of all 
scientific research activities involving direct take planned for the 
coming year, including an estimate of the total direct take that is 
anticipated, a description of the study design, including a 
justification for taking the species and a description of the 
techniques to be used, and a point of contact.
    (C) CDFW annually provides to NMFS the results of scientific 
research activities directed at fish in the experimental population, 
including a report of the direct take resulting from the studies and a 
summary of the results of such studies.
    (D) Scientific research activities that may incidentally take fish 
in the experimental population are either conducted by CDFW personnel, 
or are in accord with a permit issued by the CDFW.
    (E) CDFW provides NMFS annually, for its review and approval, a 
report listing all scientific research activities it conducts or 
permits that may incidentally take fish in the experimental population 
during the coming year. Such reports shall also contain the amount of 
incidental take occurring in the previous year's scientific research 
activities and a summary of the results of such research.
    (F) Electro fishing in any body of water known or suspected to 
contain fish in the experimental population is conducted in accordance 
with NMFS ``Guidelines for Electrofishing Waters Containing Salmonids 
Listed Under the Endangered Species Act'' (NMFS, 2000a).

[[Page 3389]]

    (G) NMFS' approval of a research program shall be a written 
approval by NMFS Northwest or Southwest Regional Administrator.
    (4) Take of CV spring-run Chinook salmon in Experimental Population 
Area that is not allowed:
    (i) Except as expressly allowed in paragraph (3) of this section, 
the taking of CV spring-run Chinook salmon is prohibited within the 
experimental population area. This includes the taking of CV spring-run 
Chinook salmon by all activities that are illegal or not allowed under 
Federal, State or local laws and regulations.
    (ii) No person shall possess, sell, deliver, carry, transport, 
ship, import, or export, by any means whatsoever, CV spring-run Chinook 
salmon from the nonessential, experimental population area in violation 
of this paragraph and paragraph (2) of this section.
    (5) San Joaquin River CV Spring-run Chinook Salmon Experimental 
Population Area.
    The geographic boundary defining the experimental population of CV 
spring-run Chinook salmon includes the San Joaquin River from Friant 
Dam downstream to its confluence with the Merced River as well as all 
sloughs, channels, and waterways connected with the San Joaquin River 
that allow for CV spring-run Chinook salmon passage. Those portions of 
the Kings River that connect with the San Joaquin River during high 
water years are also part of the experimental population area. The 
experimental population area is within the historic range of the 
species, but is outside of its current range. All CV spring-run Chinook 
salmon in this defined experimental population area are considered part 
of the San Joaquin River experimental population.
    (6) Special Take Exemption Outside of the Experimental Population 
Area:
    (i) Any taking of CV spring-run Chinook salmon in those portions of 
the lower San Joaquin River and its tributaries downstream from its 
confluence with the Merced River to Mossdale County Park in San Joaquin 
County, by otherwise lawful activities related to diverting or 
receiving water pursuant to applicable State and Federal laws.
    (ii) Any taking of CV spring-run Chinook salmon at the CVP and SWP 
projects in the Delta that originates from reintroduction to the San 
Joaquin River. NMFS will annually determine by January 15 the share of 
take at the CVP and SWP facilities that originates from the 
reintroduction to the San Joaquin River. This determination will 
provide a methodology for deducting San Joaquin River origin spring-run 
Chinook salmon from the operational triggers and incidental statements 
associated with any biological opinion that is in effect at the time 
for operations of the CVP and SWP facilities.

[FR Doc. 2013-00809 Filed 1-15-13; 8:45 am]
BILLING CODE 3510-22-P