[Federal Register Volume 78, Number 251 (Tuesday, December 31, 2013)]
[Rules and Regulations]
[Pages 79622-79633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31296]



[[Page 79622]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 121210693-3985-01]
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, Commerce.

ACTION: Final rule and notice of availability of a final environmental 
assessment.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), designate a 
nonessential experimental population of Central Valley spring-run 
Chinook salmon (Oncorhynchus tshawytscha) under the Endangered Species 
Act (ESA) in portions of the San Joaquin River, California, and 
establish take exceptions for the nonessential experimental population 
for particular activities inside the experimental population's 
geographic range and limited take exceptions outside the experimental 
population geographic range. This document also announces the 
availability of a final environmental assessment (EA) that analyzed the 
environmental impacts of promulgating the experimental population rule 
and associated take exceptions.

DATES: The final rule is effective January 30, 2014.

ADDRESSES: The Final Environmental Assessment and other reference 
materials regarding this final rule can be obtained via the Internet at 
http://www.westcoast.fisheries.noaa.gov/central_valley/san_joaquin/san_joaquin_reint.html or by submitting a request to the Assistant 
Regional Administrator, California Central Valley Area Office, West 
Coast Region, NMFS, 650 Capitol Mall, Suite 5-100, Sacramento, CA 
95814.

FOR FURTHER INFORMATION CONTACT: Elif Fehm-Sullivan, National Marine 
Fisheries Service, 650 Capitol Mall, Suite 5-100, Sacramento, CA 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 (NRDC, et al., 
v. Kirk Rodgers, et al.). After more than 18 years of litigation, 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. The settlement is implemented through the San Joaquin 
River Restoration Program (SJRRP).
    In 2009, as part of the Omnibus Public Land Management Act, 
Congress enacted the San Joaquin River Restoration Settlement Act (Pub. 
L. 111-11, 123 Stat. 1349) (SJRRSA), which ratified the terms of the 
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.

Supplemental Information

    This is a final rule stemming from a proposed rule that was 
published January 16, 2013 (78 FR 3381). This final rule implements the 
experimental population area to include the San Joaquin River just 
upstream from its confluence with, but not including, the Merced River 
upstream to Friant Dam; all sloughs, channels, floodways, and waterways 
that allow for CV spring-run Chinook salmon access along the San 
Joaquin River; and portions of the Kings River, when high water years 
connect the Kings River with the San Joaquin River. This experimental 
area is part of the species' historical range. The San Joaquin River 
experimental population is all CV spring-run Chinook salmon, including 
fish that have been released or propagated, naturally or artificially, 
within the defined experimental population area.
    The CV spring-run Chinook salmon Evolutionarily Significant Unit 
(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 Secretary may authorize the 
release of ``experimental'' populations of listed species outside of 
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 the experimental population 
is ``essential to the continued existence'' of the listed species (16 
U.S.C. 1539(j)(2)(B)).

[[Page 79623]]

    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 rule to designate and release an experimental 
population of CV spring-run Chinook salmon into the San Joaquin River 
upstream of the Merced River confluence. Although the USFWS regulations 
do not govern our regulatory action, the record demonstrates that this 
rule would be consistent with the criteria of those regulations.
    Using the best available information, the following three key 
elements of ESA section 10(j) were analyzed in formulating this rule:
    Element 1: Whether release of an experimental population of CV 
spring-run Chinook salmon into the San Joaquin River would further the 
conservation of the species;
    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.
    We discuss in more detail below how we considered each of these 
three elements.
    In addition to the requirements of ESA section 10(j), we considered 
whether any additional measures were necessary to address management 
concerns under local conditions and to comply with Section 10011 and 
10004 of the SJRRSA. Also, we considered a process for data collection 
and periodic review of the status of the experimental population. These 
additional considerations are not required under ESA section 10(j), but 
they provide information as to how our determination was reached, as 
well as explaining how we intend to assess the effect of the 
reintroduction on the conservation of the species.
    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) outside of a National 
Park or Wildlife Refuge 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 take exceptions outlined 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.
    Element 1: Whether release of an experimental population of CV 
spring-run Chinook salmon into the San Joaquin River would 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 provided pursuant 
to this [Act] are no longer necessary.'' In making the determination 
whether release of an experimental population would ``further the 
conservation'' of CV spring-run Chinook we considered the following 
factors: (1) the effects of gathering broodstock on the extant 
populations of the ESU; (2) the potential for the released population 
to survive in the foreseeable future; and (3) the potential 
contribution of an experimental population to the recovery of the 
Central Valley spring-run Chinook salmon ESU.
    We first considered the most appropriate source of fish within the 
CV spring-run Chinook salmon ESU to be used to establish an 
experimental population. Reintroduction efforts have the best chance 
for success when the donor population has life history characteristics 
and genetic diversity 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 California Central Valley will be used in 
establishing the experimental population in the San Joaquin River. The 
selection of which source population(s) will be utilized for the SJRRP 
reintroduction effort will be dependent upon the genetic diversity 
needs of the broodstock, the specific conditions of the proposed donor 
population(s) at the time, and whether the collection will jeopardize 
the continued existence of the species.
    Functionally independent populations of CV spring-run Chinook 
salmon occur in Deer, Mill, and Butte creeks and on the Feather River. 
The Feather River CV spring-run Chinook salmon population is also 
supplemented by operation of the FRFH. All of these populations are 
genetically unique from one another. Additional dependent or 
establishing populations occur in the Sacramento River Basin, but these 
are not known to be genetically unique. The Deer and Mill creek 
populations have been 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 (NMFS, 
2011). Thus it may be possible to remove fish from this population in 
years with high adult returns.
    Through our ESA 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. Recently NMFS issued a permit under section 
10(a)(1)(A) of the ESA along with a section 7 Biological Opinion (2012) 
that reached a non-jeopardy conclusion on the first 5 years of 
broodstock collection from FRFH.
    As noted above, there are several choices for source populations 
for this experimental population. A captive broodstock program is being 
established as part of the SJRRP to augment and supplement the 
establishment of an experimental population in the San Joaquin River. 
Initially we will be using FRFH fish for captive broodstock and

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direct release to the river. We would later consider diversifying the 
donor stock with fish from naturally spawning populations in other 
streams if and when those populations can sustain the removal of fish. 
Any collection of CV spring-run Chinook salmon would be subject to 
approval of a permit under ESA section 10(a)(1)(A), which includes 
analysis under the National Environmental Policy Act (NEPA) and ESA 
Section 7.
    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 or 
eliminate the need for fish to be taken from existing hatchery or 
natural populations in the Sacramento River basin. If we consider using 
CV spring-run Chinook salmon from naturally spawning populations, we 
will remove only small numbers when such collections would not 
jeopardize the continued existence of the species and will contribute 
to the enhancement or propagation of the species. FRFH fish used for 
the reintroduction will be genetically screened to avoid hybrids. The 
FRFH is planning to produce sufficient fish to allow for eggs or 
juveniles to be collected for the reintroduction, in addition to the 
hatchery production needed for the Feather River. The consistent 
availability of hatchery produced fish, combined with existing 
protections for wild populations, can allow collection of fish for 
reintroduction of CV spring-run Chinook salmon to the San Joaquin River 
with no adverse impact on the ESU.
    In determining whether release of the experimental population would 
further the conservation of CV spring-run Chinook salmon, we also 
considered the potential for the released population to survive in the 
foreseeable future. The California 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 largely 
extirpated CV spring-run Chinook salmon in these watersheds as well.
    NMFS' 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 SJRRP. The 
Settlement establishes a framework for accomplishing the Restoration 
Goal including 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 aid in the 
establishment and survival of the experimental population through the 
protection of aquatic and riparian habitat. Section 404 of the Clean 
Water Act (CWA) (33 U.S.C. 1344) requires a permit before dredged or 
fill material may be discharged into waters of the United States, 
unless the activity is exempt. This permit program provides avoidance, 
minimization, and mitigation measures for the potential adverse effects 
of dredge and fill activities within the nation's waterways. CWA 
section 401 (33. U.S.C. 1341) requires an application for a Federal 
license or permit to provide a certification for the relevant state(s) 
that any discharges from the facility will comply with applicable state 
water quality standards. In addition, CWA Section 402 (33 U.S.C. 1342) 
establishes the National Pollutant Discharge Elimination System permit 
program to regulate point source discharges of pollutants into waters 
of the United States. 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 located.
    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. prohibits an entity from: (1) substantially 
diverting or obstructing the natural flow of any river, stream, or 
lake: (2) substantially changing or using any material from the bed, 
channel, or bank of, any river, stream, or lake: or (3) depositing or 
disposing of debris, waste, or other material containing crumbled, 
flaked, or ground pavement where it may pass into any river, stream, or 
lake, without first notifying the California Department of Fish and 
Wildlife (CDFW) of the activity. CDFW (previously called California 
Department of Fish and Game until December 31, 2012) then has the 
opportunity to determine whether the activity may substantially 
adversely affect an existing fish or wildlife resource and, if the 
activity may have such an effect, to 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.
    This rule incorporates all reasonably feasible management 
restrictions, protective measures, prohibitions, and exceptions to the 
prohibitions to avoid and minimize the impacts of any taking allowed by 
this regulation. The

[[Page 79625]]

combination of SJRRP actions, implemented to achieve the Restoration 
Goal, the protective measures in this rule, as well as compliance with 
existing laws, statutes, and regulations, including in particular those 
that provide specific protections for aquatic and riparian habitats, 
provides these measures, and is expected to result in the survival of 
the experimental population in the San Joaquin River into the 
foreseeable future.
    The third consideration in determining whether release of the 
experimental population would further the conservation of the CV 
spring-run Chinook salmon ESU is the potential contribution of the 
experimental population toward recovery of the ESU. NMFS' Draft 
Recovery Plan for Central Valley salmonids 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 persists 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 experimental population 
would further the conservation of CV spring-run Chinook salmon.
    Element 2. Identification of the experimental population.
    Section 10(j) of the ESA 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 
designating the experimental population area for the experimental 
population of CV spring-run Chinook salmon as the San Joaquin River 
from its confluence upstream of the Merced River to Friant Dam, 
including all sloughs, channels, and waterways 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 and the San 
Joaquin River. The experimental population area is within the species' 
historical range, but it is presently unoccupied by CV spring-run 
Chinook salmon.
    False pathways (waterways 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 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 reintroduced, such as marking fish with specific fin clips 
(e.g., coded-wire tags, genetic testing) or other methods and field 
sampling.
    Element 3. Whether the experimental population is essential to the 
continued existence of the species.
    Because we do not have regulations implementing ESA section 10(j), 
we considered the USFWS regulations (50 CFR 17.80(b)), which define an 
essential experimental population as one ``whose loss would be likely 
to appreciably reduce the likelihood of the survival of the species in 
the wild.'' While we are not bound by the definition of ``essential'' 
in the USFWS regulations, we have determined it is appropriate for use 
in this rule.
    In making the determination whether the experimental population of 
CV spring-run Chinook salmon is essential, we used the best available 
information as required by ESA section 10(j)(2)(B). Furthermore, we 
considered the geographic location of the experimental population in 
relation to other populations of CV spring-run Chinook salmon, and the 
likelihood of survival of these populations without the existence of 
the experimental population. The San Joaquin River is geographically 
separated from the watersheds that support extant populations of CV 
spring-run Chinook salmon in the Sacramento River basin.
    We expect that CV spring-run Chinook salmon reintroduced to the San 
Joaquin River will imprint on this river and would therefore be 
unlikely to stray, beyond natural levels, into the Sacramento River 
basin and interact with extant populations found in that watershed. 
Natural straying rates would be expected to be low such that existing 
populations would not depend on supplementation of individuals from the 
experimental population to persist. The ESU includes four independent 
populations, one of which is supplemented by a hatchery, and several 
dependent or establishing populations. Given current protections and 
restoration efforts, these populations are persisting or expanding, 
without the presence of a population in the NEP area. Thus it is 
expected that the experimental population will exist as a population 
independent from those in the Sacramento River basin and will not 
contribute to the survival of those populations.
    Based on these considerations, we conclude that the loss of the 
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 NEP of CV spring-
run Chinook salmon, the ESA does not automatically prohibit take, but 
ESA section 4(d) (16 U.S.C. 1533(d)) provides that the Secretary of 
Commerce shall issue protective regulations he or she deems necessary 
and advisable for the species' conservation. Such protective 
regulations may, if appropriate, include the take prohibitions of 
section 9 of the ESA and exceptions to those take prohibitions.
    In addition to take prohibitions in regulations promulgated under 
ESA section 4(d), section 7 and section 10 of the ESA provide for 
exceptions or authorizations of take of listed species under certain 
circumstances. The consultation process under section 7 of the ESA 
provides an exception for incidental take of listed species under 
certain circumstances. Section 7(a)(2) of the ESA provides that each 
Federal agency shall, through consultation with and with the assistance 
of the Secretary of Commerce, insure that any action authorized, 
funded, or carried out by such agency is not likely to jeopardize the 
continued existence of any endangered species or threatened species or 
result in the destruction or adverse modification of critical habitat 
designated for such species. The formal consultation process results in 
NMFS issuing a biological opinion with an incidental take statement. 
The incidental take statement, among other things, specifies the amount 
or extent of incidental taking of listed species as a result of the 
proposed action, reasonable and prudent measures that NMFS considers 
necessary and appropriate to minimize the impact of such incidental

[[Page 79626]]

taking, and terms and conditions that the Federal agency or applicant 
must comply with in order to implement the reasonable and prudent 
measures. Under the terms of section 7(b)(4) and section 7(o)(2) of the 
ESA, any such incidental taking is not considered to be prohibited 
taking under the ESA, provided that such taking is in compliance with 
the terms and conditions of the incidental take statement. Section 10 
of the ESA provides NMFS with authority to issue permits under certain 
circumstances for any otherwise prohibited act or taking. NMFS may 
issue permits for scientific purposes or to enhance the propagation or 
survival of the affected species, including, but not limited to, acts 
necessary for the establishment and maintenance of experimental 
populations pursuant to ESA section 10(j); or taking that is incidental 
to, and not the purpose of, the carrying out of an otherwise lawful 
activity (i.e., incidental take permits).

Prohibited Take and Exceptions to Prohibited Take Within the 
Experimental Population Area

    In conjunction with our designation and authorization of the 
release of a CV spring-run Chinook salmon NEP in the San Joaquin River, 
we are also promulgating protective regulations under section 4(d) of 
the ESA that 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 are applying 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, including angling. These prohibitions 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, the unintentional take of CV spring-run Chinook salmon 
in the experimental population area that is caused by otherwise lawful 
activities is excepted from the take prohibitions under section 9. 
Examples of otherwise lawful activities include, but are not limited 
to, recreation, agriculture, municipal usage, flood control, water 
management, and other similar activities which are carried out in 
accordance with Federal, State, and local laws and regulations. Take 
that is intentional, or incidental to unlawful activities or negligent 
conduct is not excepted. The intent of the action that results in take 
is a consideration in this exception. Negligent conduct includes the 
failure to exercise the degree of care that a reasonably prudent person 
would exercise in like circumstances. Negligence denotes a lack of 
diligence, a disregard of the consequences likely to result from one's 
actions, or carelessness. Similarly, this rule excepts handling of fish 
in the experimental population for salvage/rescue and scientific 
research subject to specific requirements. We are providing an 
exception from the section 9 take prohibitions for specified scientific 
research activities conducted by the State of California that is 
consistent with the existing state research programs excepted under the 
current ESA section 4(d) rule established for threatened salmonids 
(codified at 50 CFR 223.203), 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 exception described 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 will 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. Because the cycle for the existing State research program, 
described above, may not coincide with the effective date of this rule, 
an exception for take resulting from the research activities proposed 
in the Monitoring and Assessment Plan developed by the SJRRP and 
approved by NMFS, has been included.
    As described above, there is an exception to the take prohibitions 
under this rule applicable to take that is unintentional and incidental 
to carrying out an otherwise lawful activity. Within the experimental 
population area, persons or entities diverting or receiving water 
pursuant to applicable State and Federal laws would be carrying out an 
otherwise lawful activity. Therefore, this exception would apply to 
incidental take of CV spring-run Chinook salmon by those persons or 
entities, and this rule would not impose any water supply reductions, 
additional storage releases or bypass flows unwillingly on them. 
Questions regarding whether specific activities will constitute a 
violation of the section 9 take prohibition, and general inquiries 
regarding prohibitions, exceptions, and permits, should be directed to 
NMFS (see ADDRESSES).
    As noted above, we 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 
area through a Fishery Management and Evaluation Plan developed by CDFW 
and approved by NMFS.

Limited Take Exceptions Outside of the Experimental Population Area

    The SJRSSA established two twin objectives relating to the impacts 
associated with the CV spring-run Chinook salmon reintroduction. First 
the SJRRSA established that the reintroduction of CV spring-run Chinook 
salmon to the San Joaquin River must not impose more than de minimus 
water supply reductions, additional storage releases, or bypass flows 
on unwilling third parties. Second, the SJRRSA provides that nothing in 
the SJRRSA diminishes ESA protections for listed species other than the 
reintroduced population of CV spring-run Chinook salmon. This final 
rule is therefore framed to achieve these twin objectives by specifying 
how the take prohibitions and exceptions apply to activities in the NEP 
area and activities downstream of the NEP area, as described further 
below. Further, nothing in this rule precludes imposing protections 
under the ESA for other listed species when those protections provide 
incidental benefits to such reintroduced CV spring-run Chinook salmon.
    The SJRRSA defines ``third party'' to mean persons or entities 
diverting or receiving water pursuant to applicable State and Federal 
laws. This includes CVP contractors outside of the Friant Division of 
the CVP and the State Water Project (SWP) contractors. Because some of 
these third parties operate outside of the experimental population 
area, this rule also includes limited take exceptions outside of the 
experimental population area when avoidance of take of CV spring-run 
Chinook salmon reintroduced by the SJRRP would result in more than de 
minimus impact to water supply reductions, additional storage releases, 
or bypass flows on unwilling third parties. These limited take 
exceptions apply to fish that have

[[Page 79627]]

been released or propagated, naturally or artificially, within the 
experimental population area in the San Joaquin River above the 
confluence with the Merced River. Outside of the experimental 
population area, CV spring-run Chinook salmon will continue to be 
covered by the take prohibitions and exceptions applicable to the non-
experimental part of the ESU (50 CFR 223.203), but additional limited 
take exceptions will now apply to meet the de minimus conditions of the 
SJRRSA. In the lower San Joaquin River and its tributaries, including 
the Merced River, downstream from its confluence with the Merced River 
to Mossdale County Park in San Joaquin County, take of CV spring-run 
Chinook salmon is excepted if the avoidance of such take would impose 
more than de minimus impact on water supply reductions, additional 
storage releases, or bypass flows on unwilling third parties. This 
exception applies to CV spring-run Chinook salmon that may occur in the 
lower San Joaquin River and its tributaries, and is not specifically 
limited to reintroduced CV spring-run Chinook salmon.
    This exception does not diminish current protections for CV spring-
run Chinook salmon downstream of the NEP area for the following 
reasons. First, past and recent status reviews have concluded that CV 
spring-run Chinook salmon have been largely extirpated in this area. 
Therefore, NMFS generally has not consulted under ESA section 7 on the 
effects on this species of proposed actions in the lower San Joaquin 
River and its tributaries. However, connectivity with the south Delta 
does not prohibit potential individual CV spring-run Chinook salmon 
from straying to these waterways. After reintroduction of CV spring-run 
Chinook salmon into the experimental population area, CV spring-run 
Chinook salmon that originate from the experimental population area 
will migrate through the lower San Joaquin River. In the lower San 
Joaquin River and its tributaries it will be difficult to differentiate 
whether any individual CV spring-run Chinook salmon originated from the 
experimental population area or strayed from the area outside the San 
Joaquin River. These fish will more likely have originated from the 
experimental population area because of the numbers of fish to be 
released for the reintroduction and the close proximity of the Lower 
San Joaquin River and its tributaries to the experimental population 
area.
    Second, California Central Valley (CCV) steelhead, a threatened 
species, does occur in the lower San Joaquin River and its tributaries. 
Owing to similarities in habitat requirements, actions that could 
adversely affect CV spring-run Chinook salmon would also similarly 
affect CCV steelhead. Therefore, ESA consultation and take avoidance 
requirements for CCV steelhead would apply whether or not CV spring-run 
Chinook salmon were present. Should NMFS decide to consult on CV 
spring-run Chinook salmon and avoidance measures were required over and 
above those required for CCV steelhead, then NMFS would not require or 
implement these measures, if such measures would result in more than a 
de minimus impact on water supply reductions, additional storage 
releases, or bypass flows, on unwilling third parties. This 
determination would be made on a case by case basis as part of the ESA 
section 7 or section 10 processes. Take avoidance or minimization 
measures that would have a de minimus or no effect on water supply 
reductions, additional storage releases, or bypass flows associated 
with the aforementioned third parties, could still be required through 
the ESA section 7 or section 10 processes. Such measures might include 
best management practices such as sediment containment, in-water work 
windows, or bank revegetation associated with stream construction 
activities.
    As stated above, the definition of ``third parties'' in the SJRRSA 
section 10011(c) includes CVP contractors outside of the Friant 
Division of the CVP and the SWP contractors. This rule prescribes the 
process by which the de minimus requirement in the SJRRSA will be 
implemented through the NMFS June 2009 Biological Opinion on the Long-
term Operations of the CVP and SWP (NMFS 2009 Biological Opinion) or 
future and successive biological opinions on these operations. The 
aforementioned NMFS 2009 Biological Opinion identifies operational 
triggers intended to avoid or minimize take of listed anadromous fish, 
including CV spring-run Chinook salmon. The successful reintroduction 
of CV spring-run Chinook salmon to the San Joaquin River potentially 
could result in application of operational triggers more frequently or 
could result in reaching allowed take thresholds, and thereby impact 
water supply.
    NMFS will develop a technical memorandum (tech memo) annually 
containing a share of take calculation in coordination with and with 
opportunity for comment by interested parties. The purpose of this tech 
memo is to ensure that avoidance of take of CV spring-run Chinook 
salmon originating from reintroduction to the San Joaquin River does 
not cause more than a de minimus impact on water supply, additional 
storage releases, and bypass flows associated with the operations of 
the CVP and SWP. NMFS will annually calculate and document the 
proportionate contribution of CV spring-run Chinook salmon originating 
from the reintroduction to the San Joaquin River and deduct or 
otherwise adjust for this share of CV spring-run Chinook salmon take 
when applying the operational triggers and incidental take statements 
associated with the NMFS 2009 Biological Opinion or subsequent future 
biological opinions, or section 10 permits. Section 11.2.1 (Decision 
Making Procedures) of the aforementioned NMFS 2009 Biological Opinion 
(with 2011 amendments) provides for an annual adjustment process. In 
preparing the tech memo, NMFS will consider whether the presence of 
such fish will modify the application of operational triggers more 
frequently, reach allowed take thresholds that otherwise would not have 
been reached, or cause changes to project operations by other factors. 
These adjustments will ensure that the reintroduction will not impose 
more than de minimus water supply reductions, additional storage 
releases, or bypass flows on unwilling third party water users. NMFS 
will use best available commercial or scientific information to inform 
these calculations. Depending on available information and relevance to 
operational triggers, these calculations may include incidental take of 
CV spring-run Chinook salmon that originate from the reintroduction to 
the San Joaquin river that may occur due to: (1) elevated water 
temperatures and poor water quality, (2) entrainment at unscreened 
diversions, (3) predation associated with diversion waterways and 
facilities, (4) reverse flow conditions in the Delta as a result of 
CVP/SWP pumping, and (5) direct loss at the CVP/SWP South Delta pumping 
and salvage facilities. This exception does not diminish ESA 
protections for existing listed species because it is limited to 
spring-run Chinook salmon that originate from the reintroduction to the 
San Joaquin River.

Process for Periodic Review

    The ESA requires that NMFS conduct a status review every 5 years 
for all listed species under its responsibility. This requirement will 
ensure that NMFS is tracking the status of the reintroduced spring-run 
Chinook population and the ESU, and will develop information to assess 
the effectiveness of this rule, and if necessary, will trigger revision 
to the

[[Page 79628]]

regulation through the rulemaking process. This will ensure that the 
reintroduction of spring-run Chinook to the San Joaquin River is 
providing for the conservation of the species as expected, and that the 
experimental population is not essential to the continued survival of 
the species.
    Monitoring and analysis is necessary to gauge the progress of the 
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 include 
measuring fish passage success, 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. 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 program's objectives.
    While this monitoring is being conducted for adaptive management 
purposes to make the reintroduction effort successful, we will also use 
the information to determine if the experimental population designation 
is causing any harm or benefit 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.

Summary of Comments and Responses

    The public comment period for the proposed rule and draft 
Environmental Assessment (EA) was open from January 16 until March 4, 
2013. Public scoping meetings were held January 24, January 25, and 
February 5, 2013 to obtain public comment and to help us better 
understand their concerns with the proposed experimental population 
designation, take and take exceptions, and associated Draft EA. During 
the comment period, NMFS received written comments on the rule and 
draft EA from 29 different entities representing various agencies, non-
governmental organizations, and individuals. A summary of the comments 
and our responses to those comments are presented here. The summary 
begins with the comments we received in response to the specific 
questions that we posed with the proposed rule.

Comments and Responses:

The geographic boundary of the designated experimental population
    Comment 1: Two commenters thought that the location should be 
larger to include the lower San Joaquin River, its tributaries, and the 
entire Delta to include water users in these areas to be excepted from 
take of CV spring-run Chinook salmon. One commenter, based on incorrect 
interpretation, wanted the location to be smaller to exclude all back 
water, sloughs, and flood control channels that salmon may be able to 
swim into, so that less regulatory burden would be placed on flood 
management and maintenance activities. Clarification was requested as 
to whether the Merced River was included in the NEP area. Four comments 
were received in favor of keeping the experimental population area as 
defined in the proposed rule.
    Response: The comments were noted; but the proposed NEP area was 
not changed for the reasons discussed below. Including the tributaries 
and the delta within the experimental population area was not an 
option, as the ESA is very clear that the experimental population must 
be wholly geographically isolated from other populations of the 
species. There is some current evidence, as seen in the discussions in 
section 3 in the EA associated with this rule, that there are spring-
running fish within the tributaries of the San Joaquin River, and 
therefore those areas cannot be included in the designation. The NEP 
description has been modified to delineate that the Merced River is not 
included in the NEP. The experimental population area does include all 
backwater, sloughs and flood control channels that salmon may be able 
to access upstream of the confluence of the Merced River. By including 
all of the possible locations that salmon may be able to access we are 
protecting water users and land owners from having undue regulatory 
burden placed upon them if there were no experimental population 
designation.
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
    Comment 2: Two responses indicated agreement that other existing 
laws and regulations will provide protection for the reintroduced fish. 
Other responses to this question did not address how the experimental 
population might be affected, rather two commenters raised concerns 
that they would be affected by the reintroduction if the implementation 
of the SJRRP is delayed or only partially implemented.
    Response: Most of the concerns expressed were related to impacts 
associated with implementation of the SJRRP as a whole. These impacts 
have been analyzed in the SJRRP Program Environmental Impact Statement/
Report and are beyond the scope of this regulation. The EA was revised 
to include analysis of the impact of the proposed rule in the event 
that the SJRRP was only partially implemented and no significant 
impacts were identified.
Any necessary management restrictions, protective measures, or other 
management measures that we may have not considered
    Comment 3: A comment was raised that management restrictions, and 
protective measures, should be considered and/or be extended to basic 
flood control problems and to management and maintenance of facilities 
of the State Plan of Flood Control in the project area. The comment 
stated that these flood control facilities could be impacted by the 
restrictions of the ESA. We received two comment letters suggesting 
that the rule should include a list of all activities for which take 
exceptions would apply. In addition, one comment letter advocated

[[Page 79629]]

reintroduction of CV spring-run Chinook salmon using only volitional 
straying of fish.
    Response: We did not adopt the approach of listing all take 
excepted activities, as it would be virtually impossible to list all 
the activities that are intended to be covered by the rule language. We 
have included some examples of common activities that would be covered 
in the Supplemental Information of this rule. Incidental take that may 
result from the lawful operation and maintenance of flood control 
facilities, which are located within the experimental population area, 
is excepted. Hence, such activities will not be restricted by the 
reintroduction of spring-run Chinook salmon. The definition of ``third 
parties'' in the SJRRSA as it pertains to the 4(d) rule is not written 
to include flood management activities outside of the NEP area.
    In response to advocating volitional reintroduction of CV spring-
run Chinook salmon, this approach to reintroduction was analyzed in the 
No Action Alternative of the EA and rejected because, while restoration 
of flows to the San Joaquin River make it possible that spring-run 
Chinook could potentially recolonize the San Joaquin River naturally, 
there is no evidence that such a volunteer population could meet either 
the terms of the Settlement or spring-run Chinook recovery objectives.
The extent to which we have provided protections for third parties as 
required by the SJRRSA
    Comment 4: We received seven comment letters regarding the ESA 4(d) 
rule required by the SJRRSA. Some stated that the regulations needed to 
be more explicitly related to the purpose of the 4(d) rule outlined in 
section 10011(c)(3) of the SJRRSA including; (1) the rule should 
include authorization for all take NMFS attributed to CVP and SWP 
operations, such as indirect take, not only take ``at'' the export 
pumps, and (2) the final rule should be as definite as possible about 
how NMFS will ensure no more than de minimus water supply reductions 
from reintroduction. There was concern by two commenters over the 
contents of the annual technical memo that the annual schedule for 
revision was too frequent, and there was little involvement of 
stakeholders in its development. This commenter wanted to have a larger 
involvement in the development and execution of the technical memo. One 
comment stated that the take exception for CVP and SWP operations 
should apply to all progeny of the reintroduced fish, especially when 
they stray to the Sacramento River, and to any CV spring-run Chinook 
salmon that are spawned in the San Joaquin river or its tributaries.
    Response: The paragraphs of the regulation that describe take 
exceptions to achieve the de minimus requirement (now (b)(5)(i) and 
(b)(5)(ii) of 50 CFR 223.301) have been modified to connect, more 
explicitly, the purpose of these take exceptions to the language of 
section 10011(c)(3) of the SJRRSA. Section 10011(c)(3) of the SJRRSA 
requires that the rule issued pursuant to ESA section 4(d) shall 
provide that the reintroduction of CV spring-run Chinook salmon to the 
San Joaquin River will not impose more than de minimus water supply 
reductions, additional storage releases, or bypass flows on unwilling 
third parties [as specifically defined] due to such reintroduction. It 
does not require that all take be excepted. The regulation has been 
modified in paragraph (b)(5)(ii) of 50 CFR 223.301 to define the 
purpose of the annual technical memo, and NMFS' commitment to 
coordinate with parties outside the agency in the development of this 
document. The schedule for this document was not changed, because we 
believe that an annual assessment of the effectiveness of the 
methodology to achieve the de minimus impact requirement is warranted. 
We acknowledge that over some periods there may be no need to revise 
this document, but in other years, conditions may change or the 
progress of the reintroduction may require a change in the methodology. 
The regulation has been edited to more clearly relate to the population 
of CV spring-run Chinook salmon reintroduced to the San Joaquin River. 
This would not include progeny of adult CV spring-run Chinook salmon 
that were spawned in the San Joaquin River, but then strayed as adults 
to Sacramento River basin streams to spawn. Some straying occurs 
naturally in all salmonid populations, but at naturally low levels, to 
the degree that it is our determination that this would not exceed the 
de minimus impact requirement of SJRRSA section 10011(c)(3). Imprinting 
procedures for CV spring-run Chinook salmon released to the San Joaquin 
River will further assure more natural, low levels of straying of 
adults. However, should this calculation be proven to be incorrect in 
the future, the annual methodology produced by NMFS to account for the 
proportionate share of the take by the CVP and SWP can be adjusted to 
ensure the de minimus standard is met.
Whether we should propose the experimental population as nonessential
    Comment 5: All but one of the four responses to this question 
supported the nonessential designation. The dissenting view was based 
on an objection based on an incorrect interpretation that this 
designation would change the status of individual wild fish that were 
collected for the reintroduction.
    Response: The nonessential designation was not changed as all but 
one response supported this designation. The designation of an 
experimental population area does not change the status of individual 
fish found in locations outside of the designated area.
Whether the proposed designation furthers the conservation of the 
species and whether we have used the best available science in making 
this determination
    Comment 6: Five commenters expressed concerns over the impacts of 
collection of CV spring-run Chinook salmon on the donor/source 
populations, especially that Mill Creek should not be considered for 
collection of donor stock. These same 5 commenters questioned the basis 
for expecting that CV spring-run Chinook salmon could survive in the 
San Joaquin River, both under present and future restored conditions.
    Response: Mill Creek fish are included in the collection 
possibilities because we concluded, based on the best available 
scientific information, that genetic input from the most diverse range 
of CV spring-run Chinook salmon populations will give the best chance 
of survival to founding stock released to the San Joaquin River. 
Collection of CV spring-run Chinook salmon from Mill Creek, or any 
other population, will be subject to approval of a permit under ESA 
section 10(a)(1)(A) which includes analysis under NEPA and ESA section 
7. No collection would occur on Mill Creek if such collection would 
jeopardize the continued existence of CV spring-run Chinook salmon. 
This process will utilize the best information available at the time, 
including the 5-year status reviews for the species, the latest of 
which occurred in 2011 and is cited in the EA.
    Additional information was included in the EA to provide a better 
explanation of available habitat under current conditions of the San 
Joaquin River, and links were provided to the background reports and 
literature that led to the Settlement requirement that both spring-run 
and fall-run Chinook

[[Page 79630]]

salmon be reintroduced to the San Joaquin River.

Summary of Additional Comments Received

Habitat restoration and construction of site specific work within the 
restoration area
    Comment 7: Eight comments noted that the habitat restoration and 
construction of site specific work required under the Settlement has 
not begun and is delayed. Some postulated that the river is currently 
not ready for the reintroduction of CV spring-run Chinook salmon. The 
question was raised as to what is the validity of placing threatened CV 
spring-run Chinook salmon in the river prior to habitat construction 
being complete.
    Response: For the purposes of the EA, we assumed that all channel 
and structural modifications, habitat improvements, and water release, 
will be implemented as required by the Settlement. Implementing only 
some of these measures would not achieve the Restoration Goal, and 
thereby would not fulfill the terms and conditions of the Settlement.
    The SJRRP is currently in the process of developing and 
implementing activities associated with the restoration of Chinook 
salmon habitat between Friant Dam and the Merced River confluence. 
These projects are large and complex and will take several years to 
complete. Timeframes associated with these actions are identified 
through the SJRRP. Surveys for gravel suitability, temperatures, egg 
survival, and other fisheries elements have been occurring and are 
available by referencing the SJRRP Monitoring and Analysis Plan, http://restoresjr.net/flows/ATR/index.html. Specific actions, such as 
riparian habitat restoration, are part of the site-specific channel 
improvement projects identified in the Settlement and are not part of 
the EA for an experimental population designation. Any collection and 
release activities would be subject to approval of a permit under ESA 
section 10(a)(1)(A), which includes analysis under NEPA and ESA section 
7. No collection or release will occur if such collection or release 
would jeopardize the continued existence of CV spring-run Chinook 
salmon. In addition, there is currently an interim Salmon Conservation 
and Research Facility and plans for a permanent facility which will 
house the broodstock. Those fish collected from donor streams will be 
collected and used as broodstock, and their offspring will then be 
either used for the next generation of broodstock, or be placed into 
the river. Suitable habitat for CV spring-run Chinook salmon is present 
below Friant Dam, but lack of flow and other past channel modifications 
have prevented salmon from accessing these areas. Until full channel 
and flow restoration is completed, Chinook salmon will need assistance 
by the agencies to access available habitat.
Hybridization
    Comment 8: We received two comments concerned that fall-run Chinook 
salmon would hybridize with reintroduced spring-run Chinook salmon or 
cause fall-run superimposition on spring-run redds in the limited 
spawning areas below Friant Dam.
    Response: The SJRRP is evaluating the risk of hybridization and 
spawning interference between CV fall-run and spring-run Chinook salmon 
to determine what measures may be necessary to address these concerns. 
The SJRRP is determining where CV fall-run and spring-run Chinook 
salmon will spawn, determining the timing of spawning in the 
Restoration Area for each run, and evaluating exclusion methods (e.g., 
fall-run exclusion weir). The results of these evaluations will help 
the program determine if a physical separation weir is necessary to 
protect spawning CV spring-run Chinook salmon and their eggs. 
Currently, Hills Ferry Barrier is maintained near the confluence of the 
Merced River to prevent fall-run Chinook salmon from entering the 
Restoration Area.
Expiration Date of Final Rule
    Comment 9: There were five comments on the duration or expiration 
of the experimental population designation.
    Response: The final rule has no specified expiration date as all 
feedback on this matter indicated support for no expiration date, as 
was proposed, or an expiration date that was much later than 2025.

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 as described in this 
final rule will further the conservation of CV spring-run Chinook 
salmon. Fish used for the reintroduction will be obtained from hatchery 
fish produced for the reintroduction, or fish produced from a 
conservation hatchery facility from limited collection of wild and 
hatchery fish. The collection of wild fish will be permitted only after 
issuance of permits under section 10(a)(1)(A) of the ESA, which 
includes analysis under ESA section 7, that ensures that any such 
collections will not be likely to jeopardize the continued existence of 
listed species. We have determined that this experimental population is 
nonessential because it is not essential to the continued existence of 
CV spring-run Chinook salmon. However, the experimental 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 Settlement. 
Actions of the SJRRP are intended to provide habitat conditions that 
will be sufficient to establish a naturally self-sustaining 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 meet the applicable requirements of 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 5 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.

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 Public Law No. 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 rule that meet this criteria.

Classification

Executive Order 12866

    This final rule has been determined to be not significant under 
E.O. 12866.

[[Page 79631]]

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 
notification 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.
    The Chief Counsel for Regulation, Department of Commerce, certified 
to the Chief Counsel for Advocacy at the Small Business Administration, 
that this rule will not have a significant economic effect on a 
substantial number of small entities. The factual basis for this 
certification was published with the proposed rule and is not repeated 
here. No comments were received regarding the economic impact of this 
final rule. As a result, a final regulatory flexibility analysis is not 
required and one was not prepared.

Executive Order 12630

    In accordance with E.O. 12630, the rule does not have significant 
takings implications. A takings implication assessment is not required 
because this 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 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 rule 
does not have federalism implications as that term is defined in E.O. 
13132.

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

    The Office of Management and Budget (OMB) regulations at 5 CFR part 
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 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, we have analyzed the impact on the human 
environment and considered a reasonable range of alternatives for this 
rule. We made the draft EA available for public comment along with the 
proposed rule, received 36 written comment documents, and responded to 
those comments in an Appendix to the EA. We have prepared a final EA on 
this action and have made it available for public inspection (see 
ADDRESSES section).

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 rule at their convenience 
should they choose to have a government-to-government consultation.

Energy Supply, Distribution, or Use (E.O. 13211)

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking any action that promulgates or is expected to lead to the 
promulgation of final rule or regulation that (1) is a significant 
regulatory action under E.O. 12866 and (2) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy.
    This final rule is not expected to significantly affect energy 
supplies, distribution, and use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required. We did not receive any comments regarding energy supplies, 
distribution, and use.

References Cited

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

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports.

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.
    For the reasons set out in the preamble, part 223 of chapter II, 
title 50 of the Code of Federal Regulations, is amended as follows.

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.  223.102(c)(30) to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *

[[Page 79632]]



----------------------------------------------------------------------------------------------------------------
                     Species \1\                                             Citation(s) for    Citation(s) for
------------------------------------------------------    Where listed           listing        critical habitat
           Common name              Scientific name                           determination      designation(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
(c) * * *
(30) Central Valley spring-run    Oncorhynchus         U.S.A.-CA, only     [Insert Federal     N/A
 Chinook salmon (non-essential     tshawytscha.         when, and at such   Register
 experimental population).                              times, as they      citation] 12/31/
                                                        are found in the    13.
                                                        San Joaquin River
                                                        from Friant Dam
                                                        downstream to its
                                                        confluence with
                                                        the Merced River,
                                                        delineated by a
                                                        line between
                                                        decimal latitude
                                                        and longitude
                                                        coordinates:
                                                        37.348930[deg] N,
                                                        120.975174[deg] W
                                                        and
                                                        37.349099[deg] N,
                                                        120.974749[deg]
                                                        W, as well as all
                                                        sloughs,
                                                        channels,
                                                        floodways, and
                                                        waterways
                                                        connected with
                                                        the San Joaquin
                                                        River that allow
                                                        for CV spring-run
                                                        Chinook salmon
                                                        access, but
                                                        excluding the
                                                        Merced River.
                                                        Those portions of
                                                        the Kings River
                                                        that connect with
                                                        the San Joaquin
                                                        River during high
                                                        water years.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

* * * * *


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


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

* * * * *
    (b) San Joaquin River Central Valley (CV) spring-run Chinook Salmon 
Experimental Population (Oncorhynchus tshawytscha). (1) The San Joaquin 
River CV spring-run Chinook salmon population identified in paragraph 
(b)(2) of this section is designated as a nonessential experimental 
population under section 10(j) of the ESA.
    (2) San Joaquin River CV Spring-run Chinook Salmon Experimental 
Population. All CV spring-run Chinook salmon, including those that have 
been released or propagated, naturally or artificially, within the 
experimental population area in the San Joaquin River as defined here 
are considered part of the San Joaquin River experimental population. 
The boundaries of this experimental population area include the San 
Joaquin River from Friant Dam downstream to its confluence with the 
Merced River, delineated by a line between decimal latitude and 
longitude coordinates: 37.348930[deg] N, 120.975174[deg] W and 
37.349099[deg] N, 120.974749[deg] W, as well as all sloughs, channels, 
floodways, and waterways connected with the San Joaquin River that 
allow for CV spring-run Chinook salmon access, but excluding the Merced 
River. 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.
    (3) Prohibitions. Except as expressly allowed in paragraph (b)(4) 
of this section, all prohibitions of section 9(a)(1) of the ESA (16 
U.S.C. 1538(a)(1)), except 9(a)(1)(C), apply to fish that are part of 
the threatened, nonessential experimental population of CV spring-run 
Chinook salmon identified in paragraph (b)(2) of this section.
    (4) Exceptions to the Application of Section 9 Take Prohibitions in 
the Experimental Population Area. The following forms of take in the 
experimental population area identified in paragraph (b)(2) of this 
section are not prohibited by this section:
    (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.
    (ii) Any taking of CV spring-run Chinook salmon by an employee or 
designee of NMFS, the USFWS, other Federal resource 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 ESA 10(a)(1)(A) permit issued by NMFS and a valid incidental 
take permit, consistency determination, or other take authorization 
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

[[Page 79633]]

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).
    (G) CDFW provides NMFS, for its review and approval, the Monitoring 
and Analysis Plan produced by the San Joaquin River Restoration 
Program, including an estimate of the direct and indirect take that may 
result from all scientific research activities in that plan for the 
period from January 30, 2014 until January 30, 2015.
    (H) NMFS' approval of a research program shall be a written 
approval by the NMFS West Coast Regional Administrator.
    (5) Limited Exception to the Application of Section 9(a)(1) Take 
Prohibitions Outside of the Experimental Population Area. The following 
forms of take are not prohibited:
    (i) Any taking of CV spring-run Chinook salmon in those portions of 
the lower San Joaquin River and its tributaries, including the Merced 
River, downstream from its confluence with the Merced River to Mossdale 
County Park in San Joaquin County, that the avoidance of which would 
impose more than de minimus water supply reductions, additional storage 
releases, or bypass flows on unwilling persons or entities diverting or 
receiving water pursuant to applicable State and Federal laws.
    (ii)(A) Any taking of CV spring-run Chinook salmon by the Central 
Valley Project (CVP) and State Water Project (SWP) that originates from 
reintroduction to the San Joaquin River that the avoidance of which 
would impose more than de minimus water supply reductions, additional 
storage releases, or bypass flows on unwilling persons or entities 
diverting or receiving water pursuant to applicable State and Federal 
laws.
    (B) NMFS will prepare a technical memorandum that describes the 
methodology to ensure that CV spring-run Chinook salmon originating 
from reintroduction to the San Joaquin River do not cause more than de 
minimus water supply reductions, additional storage releases, or bypass 
flows associated with the operations of the CVP and SWP under any ESA 
section 7 biological opinion or section 10 permit that is in effect at 
the time for operations of the CVP and SWP. To the maximum extent 
feasible, NMFS will develop this technical memorandum in coordination 
with and with opportunity for comment by interested parties. The first 
technical memorandum will be completed before CV spring-run Chinook 
salmon will be released in the San Joaquin River. Prior to January 15 
of each succeeding year, NMFS will update the technical memorandum and, 
if required by the methodology, determine the share of take at the CVP 
and SWP facilities that originates from the reintroduction to the San 
Joaquin River. This share of take of CV spring-run Chinook salmon 
reintroduced to the San Joaquin River will be deducted from or 
otherwise used to adjust the operational triggers and incidental take 
statements associated with any biological opinion that is in effect at 
the time for operations of the CVP and SWP facilities. NMFS will use 
best available commercial or scientific information to inform these 
calculations. The technical memorandum and annual determination will 
ensure that the reintroduction of CV spring-run Chinook salmon will not 
result in more than de minimus water supply reductions, additional 
storage releases or bypass flows of the CVP and SWP operations under 
any biological opinion or ESA section 10 permit that is in effect at 
the time for operations of the CVP and SWP on unwilling persons or 
entities diverting or receiving water pursuant to applicable State and 
Federal laws.
[FR Doc. 2013-31296 Filed 12-30-13; 8:45 am]
BILLING CODE 3510-22-P