[Federal Register Volume 88, Number 92 (Friday, May 12, 2023)]
[Proposed Rules]
[Pages 30690-30699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09967]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 230504-0120]
RIN 0648-BH85
Endangered and Threatened Species: Designation of Nonessential
Experimental Populations of Chinook Salmon Upstream of Shasta Dam,
Authorization for Release, and Adoption of Limited Protective
Regulations Under the Endangered Species Act Sections 10(j) and 4(s)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; notification of availability of a draft
environmental assessment; request for comments.
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SUMMARY: We, NMFS, propose a rule to designate and authorize the
release of nonessential experimental populations (NEPs or experimental
populations) of Sacramento River (SR) winter-run Chinook salmon
(Oncorhynchus tshawytscha) and Central Valley (CV) spring-run Chinook
salmon (O. tshawytscha) in the McCloud and Upper Sacramento Rivers
upstream of Shasta Dam (the NEP Area), California, and, under the
Endangered Species Act (ESA), establish a limited set of take
exceptions for the experimental populations. Successful reintroduction
of populations within the species' historical ranges would contribute
to viability and further conservation of these species. The issuance of
limited protective regulations for the conservation of these species
would provide regulatory assurances to the people in the Upper
Sacramento River and McCloud River watersheds. This proposed rule also
announces the availability for comment of a draft environmental
assessment (EA) analyzing the environmental impacts of this proposed
experimental population designation and the associated take exceptions.
DATES: Comments on this proposed rule and EA, must be received no later
than June 12, 2023.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2018-0052, by the following method:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2018-0052 in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
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 the following:
Visit NMFS' National Environmental Policy Act (NEPA)
website at: https://www.westcoast.fisheries.noaa.gov/publications/nepa/nepa_documents.html.
FOR FURTHER INFORMATION CONTACT: Steve Edmondson,
[email protected] or by phone at (916) 930-3600, or by mail at
National Marine Fisheries Service, 650 Capitol Mall, Suite 5-100,
Sacramento, CA 95814.
SUPPLEMENTARY INFORMATION:
Background Information Relevant to Experimental Population Designation
NMFS listed the SR winter-run Chinook salmon Evolutionarily
Significant Unit (ESU) \1\ as endangered under the ESA, 16 U.S.C. 1531
et seq., on January 4, 1994 (59 FR 440) and reaffirmed this status on
June 28, 2005 (70 FR 37159), and 5-year reviews announced on August 15,
2011 (76 FR 50448), April 14, 2014 (79 FR 20802), and May 26, 2016 (81
FR 33468). Section 9 of the ESA prohibits take of the endangered SR
winter-run Chinook
[[Page 30691]]
salmon. The State of California listed SR winter-run Chinook salmon as
endangered in 1989 under the California Endangered Species Act (CESA).
The federally listed ESU is composed of a single population that
includes all naturally spawned SR winter-run Chinook salmon in the
Sacramento River and its tributaries (70 FR 37160, June 28, 2005, as
well as SR winter-run Chinook salmon that are part of the conservation
hatchery program at the Livingston Stone National Fish Hatchery (NFH)
(R. Jones, NMFS, letter to Chris Yates, NMFS, September 28, 2015,
regarding inclusion of Livingston Stone NFH fish in the ESU; 81 FR
33468, May 26, 2016). Designated critical habitat of SR winter-run
Chinook salmon (58 FR 33212, June 16, 1993) includes: (1) the
Sacramento River from Keswick Dam, Shasta County (River Mile (RM) 302)
to Chipps Island (RM 0) at the westward margin of the delta; (2) all
waters from Chipps Island westward to Carquinez Bridge, including
Honker Bay, Grizzly Bay, Suisun Bay, and Carquinez Strait; (3) all
waters of San Pablo Bay westward of the Carquinez Bridge; and (4) those
waters north of San Francisco-Oakland Bay Bridge.
NMFS listed the CV spring-run Chinook salmon ESU as threatened
under the ESA on September 16, 1999 (64 FR 50394), and reaffirmed this
status in a final rule on June 28, 2005 (70 FR 37160), and 5-year
reviews announced on August 15, 2011 (76 FR 50447) and May 26, 2016 (81
FR 33468). The listed ESU of CV spring-run Chinook salmon currently
includes all naturally spawned populations of spring-run Chinook salmon
in the Sacramento River and its tributaries, as well as the spring-run
Chinook salmon from the Feather River Hatchery (FRH) spring-run Chinook
salmon program. On January 9, 2002 (67 FR 1116), NMFS issued protective
regulations under section 4(d) of the ESA for CV spring-run Chinook
salmon that apply the take prohibitions of section 9(a)(1) of the ESA
except for listed exceptions (see 50 CFR 223.203). Critical habitat has
been designated for CV spring-run Chinook salmon (70 FR 52488,
September 2, 2005), and includes most of the occupied riverine habitat
within their extant range. CV spring-run Chinook salmon are also listed
as a threatened species by the State of California under CESA,
California Fish and Game Code, Division 3, Chapter 1.5.
In 2014, we adopted a final recovery plan for the SR winter-run and
CV spring-run Chinook salmon ESUs (79 FR 42504, July 22, 2014). The
Central Valley Recovery Plan identifies re-establishing populations of
SR winter-run and CV spring-run Chinook salmon above impassable
barriers to unoccupied historical habitats as an important recovery
action (NMFS 2014). More specifically, the Central Valley Recovery Plan
explains that re-establishing populations above impassable barriers,
such as Shasta Dam, would aid in recovery of the ESUs by increasing
abundance, spatial structure and diversity and by reducing the risk of
extinction to the ESUs.
NMFS is proposing this rule to (a) designate and authorize the
release of NEPs of SR winter-run and CV spring-run Chinook salmon
pursuant to ESA section 10(j) in the McCloud and Upper Sacramento
Rivers upstream of Shasta Dam, and (b) establish take prohibitions for
the NEPs and exceptions for particular activities.
The NEP Area extends from Shasta Dam up to Pit 7 Dam on the Pit
River, McCloud Dam on the McCloud River, and Box Canyon Dam on the
upper Sacramento River. All other tributaries flowing into Shasta
Reservoir up to the ridge line, including tributaries below Pit 7 Dam,
McCloud Dam, and Box Canyon Dam, up to the ridge line would be included
in the NEP Area. All other areas above Pit 7 Dam on the Pit River,
McCloud Dam on the McCloud River, and Box Canyon Dam on the upper
Sacramento River would not be part of the NEP Area. The NEP Area
extends up to the ridgelines to account for watershed processes and
ends at the aforementioned dams because these dams lack fish passage
facilities. The NEP Area is part of the species' historical range. The
NEPs are all SR winter-run and CV spring-run Chinook salmon, including
fish released or propagated, naturally or artificially, within the NEP
Area.
Statutory and Regulatory Framework for Experimental Population
Designations
Section 10(j) of the ESA (16 U.S.C. 1539(j)) allows the Secretary
of Commerce to authorize the release of any population of a listed
species outside their current range if the release ``furthers their
conservation.'' An experimental population is a population that is
geographically separate from nonexperimental populations of the same
species.
Before authorizing the release of an experimental population,
section 10(j)(2)(B) requires that the Secretary must ``by regulation
identify the population and determine, on the basis of the best
available information, whether or not the population is essential to
the continued existence of the listed species.
An experimental population is treated as a threatened species,
except that non-essential populations do not receive the benefit of
certain protections normally applicable to threatened species (ESA
section 10(j)(2)(C)). Below we discuss the impact of treating
experimental populations as threatened species and of exceptions that
apply to experimental populations.
For endangered species, section 9 of the ESA prohibits take of
those species. For a threatened species, ESA section 9 does not
specifically prohibit take of those species, but the ESA instead
authorizes NMFS to adopt regulations under section 4(d) to prohibit
take or that it deems necessary and advisable for species conservation.
If designated, the proposed experimental populations of SR winter-run
and CV spring-run Chinook salmon must generally be treated as
threatened species. Therefore, we propose to issue tailored protective
regulations under ESA section 4(d) for the proposed experimental
populations of SR winter-run and CV spring-run Chinook salmon to
identify take prohibitions necessary to provide for the conservation of
the species with exceptions for particular activities.
Section 7 of the ESA provides for Federal interagency cooperation
and consultation on Federal agency actions. Section 7(a)(1) directs all
Federal agencies, in consultation with NMFS as applicable depending on
the species, to use their authorities to further the purposes of the
ESA by carrying out programs for the conservation of listed species.
Section 7(a)(2) requires all Federal agencies, in consultation with
NMFS as applicable depending on the species, to ensure any action they
authorize, fund or carry out is not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. Section 7 applies equally
to endangered and threatened species.
Although ESA section 10(j) provides that an experimental population
must generally be treated as a threatened species, for the purposes of
ESA section 7, if the experimental population is determined to be a
NEP, section 10(j)(C)(i) requires that we treat the experimental
population as a species proposed to be listed, rather than a species
that is listed (except when it occurs within a National Wildlife Refuge
or National Park, in which case it is treated as listed). Section
7(a)(4) of the ESA requires Federal agencies to confer (rather than
consult under ESA section 7(a)(2)) with NMFS on actions likely to
jeopardize the continued existence of a species proposed to be
[[Page 30692]]
listed. The results of a conference are advisory recommendations, if
any, on ways to minimize or avoid adverse effects rather than mandatory
terms and conditions under ESA section 7(a)(2) consultations (compare
50 CFR 402.10(c) with 50 CFR 402.14(i)(1)(iv)).
NMFS has designated four experimental populations (78 FR 2893,
January 15, 2013; 78 FR 79622, December 31, 2013; 79 FR 40004, July 11,
2014; 87 FR 79808, December 28, 2022) and promulgated regulations,
codified at 50 CFR part 222, subpart E, to implement section 10(j) of
the ESA (81 FR 33416, May 26, 2016). NMFS' implementing regulations
include the following provisions:
The provision at 50 CFR 222.501(b) defines an ``essential
experimental population'' as an experimental population that, if lost,
the survival of the species in the wild would likely be substantially
reduced. All other experimental populations are classified as
nonessential.
The provision at 50 CFR 222.502(b) provides that, before
authorizing the release of an experimental population, the Secretary
must find by regulation that such release will further the conservation
of the species. In addition, 50 CFR 222.502(b) provides that, in making
such a finding, the Secretary shall utilize the best scientific and
commercial data available to consider:
Any possible adverse effects on extant populations of a
species as a result of removal of individuals, eggs, or propagules for
introduction elsewhere;
The likelihood that any such experimental population will
become established and survive in the foreseeable future;
The effects that establishment of an experimental
population will have on the recovery of the species; and
The extent to which the introduced population may be
affected by existing or anticipated Federal or state actions or private
activities within or adjacent to the experimental population area.
The provision at 50 CFR 222.502(c) describes 4 components that must
be provided in any NMFS regulations designating an experimental
population under ESA section 10(j):
Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location; actual
or anticipated migration; number of specimens released or to be
released; and other criteria appropriate to identify the experimental
population(s);
A finding, based solely on the best scientific and
commercial data available, and the supporting factual basis, on whether
the experimental population is, or is not, essential to the continued
existence of the species in the wild;
Management restrictions, protective measures, or other
special management concerns of that population, as appropriate, which
may include, but are not limited to, measures to isolate and/or to
contain the experimental population designated in the regulation from
nonexperimental populations and protective regulations established
pursuant to section 4(d) of the ESA; and
A process for periodic review and evaluation of the
success or failure of the release and the effect of the release on the
conservation and recovery of the species.
In addition, as described above, ESA section 10(j)(1) defines an
``experimental population'' as any population authorized for release
but only when, and at such times as, the population is wholly separate
geographically from the non-experimental populations of the same
species. Accordingly, we must establish that there are such times and
places when the experimental population is wholly geographically
separate. Similarly, the statute requires that we identify the
experimental population; the legislative history indicates that the
purpose of this requirement is to provide notice as to which
populations of listed species are experimental (see Joint Explanatory
Statement of the Committee of Conference, H.R. Conf. Rep No. 97-835, at
34 (1982)).
We discuss in more detail below how we considered each of these
elements.
Status of the Species
Life history and the historical population trends of SR winter-run
and CV spring-run Chinook salmon are summarized by Healy (1991), USFWS
(1995), Yoshiyama et al., (1998), Yoshiyama et al., (2001), and Moyle
(2002). Section 4(f) of the ESA requires the Secretary of Commerce to
develop recovery plans for all listed species unless the Secretary
determines that such a plan will not promote the conservation of a
listed species. Prior to developing the Central Valley Recovery Plan
(NMFS 2014), we assembled a team of scientists from Federal and State
agencies, consulting firms, non-profit organizations and academia. This
group, known as the Central Valley Technical Recovery Team (CVTRT), was
tasked with identifying population structure and recommending recovery
criteria (also known as delisting criteria) for ESA-listed salmon and
steelhead in the Sacramento River and San Joaquin Rivers and their
tributaries. The CVTRT recommended biological viability criteria at the
ESU level and population level (Lindley et al., 2007) for recovery
planning consideration. The CVTRT identified the current risk level of
each population based on the gap between recent abundance and
productivity and the desired recovery goals. The CVTRT concluded that
the greatest risk facing the ESUs resulted from the loss of historical
diversity following the construction of major dams that blocked access
to historical spawning and rearing habitat (Lindley et al., 2007).
The CVTRT also recommended spatial structure and diversity metrics
for each population (Lindley et al., 2004). Spatial structure refers to
the geographic distribution of a population and the processes that
affect the distribution. Populations with restricted distribution and
few spawning areas are at a higher risk of extinction from catastrophic
environmental events (e.g., a volcanic eruption) than are populations
with more widespread and complex spatial structure. A population with
complex spatial structure typically has multiple spawning areas which
allows the expression of diverse life history characteristics.
Diversity is the combination of genetic and phenotypic characteristics
within and between populations (McElhany et al., 2000). Phenotypic
diversity allows more diverse populations to use a wider array of
environments and protects populations against short-term temporal and
spatial environmental changes. Genotypic diversity, on the other hand,
provides populations with the ability to survive long-term changes in
the environment by providing genetic variations that may prove
successful under different situations. The combination of phenotypic
and genotypic diversity, expressed in a natural setting, provides
populations with the ability to utilize the full range of habitat and
environmental conditions and to have the resiliency to survive and
adapt to long-term changes in the environment.
In 2016, NMFS completed a periodic review as required by ESA
section 4(c)(2)(A) and on May 26, 2016 (81 FR 33468) announced the SR
winter-run Chinook salmon ESU would remain listed as endangered. In
2023, NMFS completed the 2022 review of SR winter-run Chinook salmon
that indicates the biological status of the SR winter-run Chinook
salmon ESU has declined since the 2016 viability assessment (Williams
et al. 2016), with the single spawning population on the mainstem
Sacramento River now at a high risk of extinction (SWFSC 2022). Updated
information indicates an increased extinction risk due to the
[[Page 30693]]
larger influence of the hatchery broodstock and low numbers of natural-
origin returns in two consecutive years (SWFSC 2022). Analysis
identified that the viability of the ESU would be improved by re-
establishing this species in their historical spawning and rearing
habitats through reintroduction efforts in Battle Creek and upstream
from Shasta Reservoir.
In 2016, NMFS completed a periodic review as required by the ESA
section 4(c)(2)(A), and concluded that the CV spring-run Chinook salmon
ESU should remain listed as threatened (81 FR 33468, May 26, 2016). As
part of the periodic review, NMFS' Southwest Fisheries Science Center
conducted an analysis (Johnson and Lindley 2016) that indicated the
extant independent populations of the CV spring-run Chinook salmon ESU
remained at a moderate to low extinction risk. The NMFS Southwest
Fisheries Science Center's recent viability analysis (2022) noted some
improvements in the viability of the ESU, particularly with the
increased spatial diversity of the dependent Battle Creek and Clear
Creek populations. However, the analysis also identified as key threats
recent catastrophic declines of many of the extant populations, high
pre-spawn mortality during the 2012-2015 drought in California,
uncertain juvenile survival as a result of drought and ocean
conditions, as well as straying of CV spring-run Chinook salmon from
the Feather River Fish Hatchery.
Analysis of the Statutory Requirements
1. Will authorizing release of experimental populations further the
conservation of these species?
Section 3(3) of the ESA, 16 U.S.C. 1532(3), 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.'' We discuss in more detail below each of the factors
we considered in determining whether authorizing release of
experimental populations in the NEP Area would further the conservation
of SR winter-run and CV spring-run Chinook salmon.
Under 50 CFR 222.502(b), NMFS must consider several factors in
finding whether authorizing release of an experimental population will
further the conservation of the species, including any possible adverse
effects on extant populations of the species as a result of removal of
individuals for introduction elsewhere; the likelihood that the
experimental population will become established and survive in the
foreseeable future; the effects that establishment of the experimental
population will have on the recovery of the species; and the extent to
which the experimental populations may be affected by existing or
anticipated Federal or state actions or private activities within or
adjacent to the experimental population area.
Regarding the likelihood that reintroduction efforts will be
successful in the foreseeable future, an important question is: what
are the most appropriate sources of broodstock to establish the
experimental population, and are the sources available? 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 (Araki et al., 2008). Populations found in watersheds
closest to the NEP Area are most likely to have adaptive traits that
will lead to a successful reintroduction. Therefore, only SR winter-run
and CV spring-run Chinook salmon populations found in Central Valley
would be used in establishing the experimental populations in the NEP
Area.
We have preliminarily identified donor sources for reintroduction
into the NEP Area as SR winter-run from Livingston Stone NFH and CV
spring-run Chinook salmon produced from the FRH. These fish are the
geographically closest donor sources that could be used with minimal
impact to the wild populations for reintroduction into the NEP Area.
NMFS, in consultation with the California Department of Fish and
Wildlife (CDFW), may later consider diversifying the donor stocks from
other nearby streams if those populations can sustain removal of fish.
Any collection of Chinook salmon would be subject to a Hatchery and
Genetic Management Plan (HGMP) in relation to a hatchery source and
approval of a permit under ESA section 10(a)(l)(A), which includes
analysis under NEPA and ESA section 7.
Use of donor stocks from Livingston Stone NFH and the FRH for the
initial phases of a reintroduction program will minimize the number of
individuals needed from existing populations. Supplementation to the
donor stock, if necessary, would be dependent upon genetic diversity
needs and the extent of adverse effects to other populations. It is
anticipated that over time, the Livingston Stone NFH and FRH would
produce juveniles and adults in sufficient numbers to enable the return
of a sufficient number of adults to establish a self-sustaining
population in the NEP Area. Once self-sustaining populations are
established, it is anticipated that contributions of SR winter-run
Chinook salmon from Livingston Stone NFH and CV spring-run Chinook
salmon from FRH would be phased out.
We also consider the suitability of habitat available to the
experimental populations. In 2014, the U.S. Bureau of Reclamation
initiated a habitat assessment of the NEP Area and found conditions
were suitable for Chinook salmon spawning, adult holding, and juvenile
rearing. Habitat conditions in the Upper Sacramento and McCloud Rivers
are described in the draft EA.
In addition, there are Federal and state laws and regulations that
will help ensure the establishment and survival of the experimental
populations by protecting aquatic and riparian habitat in the NEP Area.
Section 404 of the Clean Water Act (CWA), 33 U.S.C. 1344, establishes a
program to regulate the discharge of dredged or fill material into
waters of the United States, which generally requires avoidance,
minimization, and mitigation for potential adverse effects of dredge
and fill activities within the nation's waterways. Under CWA section
401, 33 U.S.C. 1341, a Federal agency may not issue a permit or license
to conduct any activity that may result in any discharge into waters of
the United States unless a state or authorized tribe where the
discharge would originate issues a section 401 water quality
certification verifying compliance with existing water quality
requirements or waives the certification requirement. In addition,
construction and operational storm water runoff is subject to
restrictions under CWA section 402, 33 U.S.C. 1342, which establishes
the National Pollutant Discharge Elimination System permit program, and
state water quality laws.
The Federal Energy Regulatory Commission (FERC), pursuant to the
Federal Power Act (FPA) and the U.S. Department of Energy Organization
Act, is authorized to issue licenses for up to 50 years for the
construction and operation of non-Federal hydroelectric developments
subject to its jurisdiction. The FPA authorizes NMFS to issue mandatory
prescriptions for fish passage and recommend other measures to protect
salmon, steelhead, and other anadromous fish.
The Magnuson-Stevens Fishery Conservation and Management Act (MSA)
(16 U.S.C. 1801 et seq.) is the principal law governing marine
fisheries conservation and management in the
[[Page 30694]]
United States. Chinook salmon Essential Fish Habitat (EFH) is
identified and described to include all water bodies currently or
historically occupied by Chinook salmon in California. Under the MSA,
Federal agencies are required to determine whether a Federal action
they authorize, fund, or undertake may adversely affect EFH (16 U.S.C.
1855(b)). Chinook salmon EFH does not occur in the NEP Area.
At the state level, the California Fish and Game Code (CFGC) Fish
and Wildlife Protection and Conservation provisions (CFGC section 1600,
et seq.), the CESA (CFGC section 2050, et seq.), and the California
Environmental Quality Act (CEQA) (Public Resources Code section 21000,
et seq.) set forth criteria for the incorporation of avoidance,
minimization, and feasible mitigation measures for on-going activities
as well as for individual projects. The CFGC Fish and Wildlife
Protection and Conservation provisions were enacted to provide
conservation for the state's fish and wildlife resources and include
requirements to protect riparian habitat resources on the bed, channel,
or bank of streams and other waterways. The CESA prohibits the taking
of listed species except as otherwise provided in State law. Under the
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 public agencies shall
incorporate such measures absent overriding consideration.
Regarding the effects that establishment of experimental
populations will have on the recovery of the species, the Central
Valley Recovery Plan (NMFS 2014) characterizes the NEP Area as having
the potential to support viable populations of Chinook salmon. The
Central Valley Recovery Plan establishes a framework for reintroduction
of Chinook salmon and steelhead to historical habitats upstream of
dams. The framework recommends that a reintroduction program should
include feasibility studies, habitat evaluations, fish passage design
studies, and a pilot reintroduction phase prior to implementation of
the long-term reintroduction program. In addition, the Central Valley
Recovery Plan contains specific management strategies for recovering SR
winter-run and CV spring-run Chinook salmon that include securing
existing populations and reintroducing these species into historically
occupied habitats above rim dams in the Central Valley of California
(NMFS 2014). The Central Valley Recovery Plan concludes, and we
continue to agree, that establishing experimental populations in the
NEP Area that persist into the foreseeable future is expected to reduce
extinction risk from natural and anthropogenic factors by increasing
abundance, productivity, spatial structure, and diversity within
California's Central Valley. These expected improvements in the overall
viability of SR winter-run and CV spring-run Chinook salmon, in
addition to other actions being implemented throughout the Central
Valley, which are described next, will contribute to SR winter-run and
CV spring-run Chinook salmon near-term viability and recovery.
Across the Central Valley, a number of actions are being undertaken
to improve habitat quality and quantity for SR winter-run and CV
spring-run Chinook salmon. Collectively, implementation of these will
result in many projects that will improve habitat conditions. The San
Joaquin River Restoration Program will improve passage survival and
spatial distribution for CV spring-run Chinook salmon in the San
Joaquin River corridor. The Battle Creek Salmon and Steelhead
Restoration Project will improve passage and rearing survival, spawning
opportunities and spatial distribution in Battle Creek. The Central
Valley Flood Protection Plan (DWR 2011) will improve juvenile rearing
conditions during outmigration by creating and improving access to high
quality floodplain habitats.
Implementation of the action items identified in NMFS current 2022
5-year review of the listing factors and in the Species in the
Spotlight 2021-2025 Priority Action Plan for SR winter-run Chinook
salmon (NMFS 2021) include improving management of Shasta Reservoir
cold-water storage to reduce water temperatures and provide flows to
improve SR winter-run Chinook salmon productivity; restoring Battle
Creek habitats and reintroducing SR winter-run Chinook salmon to
historical spawning areas; reintroducing SR winter-run Chinook salmon
into historical habitats above Shasta Dam; improving Yolo Bypass fish
habitat and passage to increase juvenile survival and rearing
opportunities; improving management of winter and early spring Delta
conditions to improve juvenile survival; and continuing collaboration
on science and fostering partnerships to build greater capacity to
address recovery challenges.
Climate change is expected to exacerbate existing habitat stressors
in California's Central Valley and increase threats to Chinook salmon
and steelhead by reducing the quantity and quality of freshwater
habitat (Lindley et al., 2007). Significant contraction of thermally
suitable habitat is predicted, and as cold-water sources contract,
access to cooler headwater streams is expected to become increasingly
important for CV spring-run Chinook salmon in the Central Valley
(Crozier et al., 2018). For this reason and other reasons described
above, we anticipate reintroduction of SR winter-run and CV spring-run
Chinook salmon into headwater streams upstream of Shasta Dam will
contribute to their conservation and recovery.
Existing or anticipated Federal or state actions or private
activities within or adjacent to the NEP Area may affect the
experimental populations. The NEP Area is sparsely populated and
ongoing state, Federal and local activities include forest management,
limited mining, highways and road maintenance, residential and
municipal development, grazing, tourism and recreation. These
activities will likely continue into the future and are anticipated to
have minor impacts to SR winter-run and CV spring-run Chinook salmon in
the NEP Area and adjacent areas. Potential impacts from these and other
activities are further minimized through application of the
aforementioned state and Federal regulations. Dams and water diversions
in the NEP Area currently limit fish populations in some parts of the
NEP Area. NMFS anticipates releases of SR winter-run and CV spring-run
Chinook salmon will be specifically targeted into riverine reaches with
abundant high-quality habitats that are not blocked by barriers to fish
passage, or impaired by high water temperatures or inadequate flows.
The habitat improvement actions called for in the Central Valley
Recovery Plan, as well as compliance with existing Federal, state, and
local laws, statutes, and regulations, including those mentioned above,
are expected to contribute to the establishment and survival of the
experimental populations in the NEP Area in the foreseeable future.
Although the donor sources for reintroduction are anticipated to
include hatchery-origin individuals from the Livingston Stone NFH and
FRH, based on the factors discussed above, we conclude it is probable
that self-sustaining experimental populations of SR winter-run and CV
spring-run Chinook salmon will become established and survive in the
NEP Area. Furthermore, we conclude that self-sustaining experimental
populations of genetically compatible individuals will likely further
the conservation of these species, as discussed above.
[[Page 30695]]
2. Identification of the Experimental Populations and Geographic
Separation From Nonexperimental Populations of the Same Species
ESA section 10(j)(2)(B) requires that we identify experimental
populations by regulation. ESA section 10(j)(1) also provides that a
population is considered an experimental population only when, and at
such times as, it is wholly separate geographically from the
nonexperimental population of the same species. NMFS proposes that the
NEP Area would extend upstream from Shasta Dam in the McCloud and Upper
Sacramento Rivers as described above. Under this proposed rule,
experimental populations would be identified as SR winter-run and CV
spring-run Chinook salmon populations when geographically located
anywhere in the NEP Area. Reintroduced SR winter-run and CV spring-run
Chinook salmon would only be part of the experimental populations when
they are present in the NEP Area, and would not be part of the
experimental populations when they are outside the NEP Area, even if
they originated within the NEP Area. When reintroduced juvenile SR
winter-run and CV spring-run Chinook salmon pass downstream of Shasta
and Keswick Dams into the Sacramento River, and when they migrate
further downstream to the Sacramento River Delta and the Pacific Ocean,
they would no longer be geographically separated from other extant SR
winter-run and CV spring-run Chinook salmon populations, and thus the
``experimental population'' designations would not apply, unless and
until they return as adults and re-enter the NEP Area.
The proposed NEP Area provides the requisite level of geographic
separation because SR winter-run and CV spring-run Chinook salmon are
currently extirpated from this area due to the presence of Shasta and
Keswick Dams, which block their upstream migration. Straying of fish
from other Chinook populations into the NEP Area is not possible due to
the presence of these dams. As a result, the geographic description of
the extant SR winter-run and CV spring-run Chinook salmon ESUs does not
include the NEP Area.
NMFS anticipates that SR winter-run and CV spring-run Chinook
salmon used for the initial stages of a reintroduction program would be
marked, for example, with specific fin clips and/or coded-wire tags to
evaluate stray rates and allow for brood stock collection of returning
adults that originated from the experimental populations. Any marking
of individuals of the experimental populations, such as clips or tags,
would be for the purpose of evaluating the effectiveness of a near-term
and long-term fish passage program, and would not be for the purpose of
identifying fish from the NEP Area other than for brood stock
collection of returning adults. As discussed above, the experimental
populations are identified based on the geographic location of the
fish. Indeed, if the reintroductions are successful as expected, and
fish begin reproducing naturally, their offspring would not be
distinguishable from fish from other Chinook salmon populations.
Outside of the NEP Area, e.g., downstream of Shasta and Keswick Dams in
the Sacramento River, or in the ocean, any such unmarked fish
(juveniles and adults alike) would not be considered members of the
experimental populations. They would be considered part of the SR
winter-run Chinook salmon ESU or the CV spring-run Chinook salmon ESU
currently listed under the ESA. Likewise, any fish that were marked for
reintroduction in the NEP Area would not be considered part of the
experimental populations once they left the NEP Area; rather, they
would be considered part of the ESUs currently listed under the ESA.
3. Is the experimental population essential to the continued existence
of the species?
As discussed above, ESA section 10(j)(2)(B) requires the Secretary
to determine whether experimental populations would be ``essential to
the continued existence'' of the listed species. The statute does not
elaborate on how this determination is to be made. However, as noted
above, Congress gave some further attention to the term when it
described an essential experimental population as one whose loss
``would be likely to appreciably reduce the likelihood of survival of
that species in the wild.'' (Joint Explanatory Statement, supra, at
34). NMFS regulations incorporated this concept into its definition of
an essential experimental population at 50 CFR 222.501(b), which is an
experimental population that, if lost, the survival of the species in
the wild would likely be substantially reduced.
In determining whether the experimental populations of SR winter-
run and CV spring-run Chinook salmon are 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
populations in relation to other populations of SR winter-run and CV
spring-run Chinook salmon, and the likelihood of survival of these
populations without the existence of the experimental populations.
The SR winter-run Chinook salmon ESU consists of a single extant
population in the Sacramento River downstream of Shasta and Keswick
Dams. The CV spring-run Chinook salmon ESU includes four independent
populations and several dependent or establishing populations. Given
current protections and restoration efforts, these populations are
persisting without the presence of a population in the NEP Area. It is
expected that the experimental populations will exist as separate
populations from those in the Sacramento River basin and will not be
essential to the survival of those populations. Based on these
considerations, we conclude that the loss of experimental populations
of SR winter-run or CV spring-run Chinook salmon in the NEP Area is not
likely to appreciably reduce the likelihood of the survival of these
species in the wild. Accordingly, NMFS is proposing to designate the
experimental populations as nonessential. Under section 10(j)(2)(C)(ii)
of the ESA we cannot designate critical habitat for nonessential
experimental populations.
Additional Management Restrictions, Protective Measures, and Other
Special Management Considerations
As indicated above, ESA section 10(j)(2)(C) requires that
experimental populations be treated as threatened species, except that,
for nonessential experimental populations, certain portions of ESA
section 7 do not apply and critical habitat cannot be designated.
Congress intended that the Secretary would issue regulations deemed
necessary and advisable to provide for the conservation of experimental
populations just as he or she does under ESA section 4(d) for any
threatened species (Joint Explanatory Statement, supra, at 34). In
addition, when amending the ESA to add section 10(j), Congress
specifically intended to provide broad discretion and flexibility to
the Secretary in managing experimental populations so as to reduce
opposition to releasing listed species outside their current range
(H.R. Rep. No. 567, 97th Cong. 2d Sess. 34 (1982)). Therefore, we
propose to exercise the authority to issue protective regulations under
ESA section 4(d) for the proposed experimental populations of SR
winter-run and CV spring-run Chinook salmon to identify take
prohibitions necessary to provide for the conservation of these species
and otherwise provide assurances to the
[[Page 30696]]
people of the Upper Sacramento and McCloud River watersheds.
The ESA defines ``take'' to mean harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct (16 U.S.C. 1532(19)). Concurrent with the proposed ESA
section 10(j) experimental population designation, we propose
protective regulations under ESA section 4(d) for the experimental
populations that would prohibit take of SR winter-run and CV spring-run
Chinook salmon in the NEP Area that are part of the experimental
populations, except in the following circumstances:
1. Any take by authorized governmental entity personnel acting in
compliance with 50 CFR 223.203(b)(3) 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;
2. Any take that is incidental \1\ to an otherwise lawful activity
and is unintentional, not due to negligent conduct. Otherwise lawful
activities include, but are not limited to, recreation, forestry, water
management, agriculture, power production, mining, transportation
management, rural development, or livestock grazing, when such
activities are in full compliance with all applicable laws and
regulations; and
---------------------------------------------------------------------------
\1\ Incidental take refers to takings that result from, but are
not the purpose of, carrying out an otherwise lawful activity
conducted by the Federal agency or applicant. 50 CFR 402.02.
---------------------------------------------------------------------------
3. Any take that is pursuant to a permit issued by NMFS under
section 10 of the ESA (16 U.S.C. 1539) and regulations in 50 CFR part
222 applicable to such a permit.
Process for Periodic Review
Evaluation of the success of experimental populations will require
new monitoring programs developed specifically for this purpose. To
gauge the success of the program, NMFS anticipates that it will be
necessary to monitor in the NEP Area for fish passage efficiency,
spawning success, adult and smolt injury and mortality rates, juvenile
salmon collection efficiencies, competition with resident species,
predation, and disease among other things. We anticipate the status of
reintroduced populations of SR winter-run and CV spring run Chinook
salmon in the NEP Area would be evaluated during NMFS' five-year review
process under ESA 4(c)(2). During the 5-year review, NMFS may evaluate
whether the current designation under ESA section 10(j) as nonessential
experimental populations is still warranted.
Proposed Experimental Population Findings
Based on the best available scientific information, we have
determined that the designations and authorization for the release of
NEPs of SR winter-run and CV spring-run Chinook salmon in the NEP Area
upstream of Shasta Dam will further the conservation of SR winter-run
and CV spring-run Chinook salmon. SR winter-run Chinook salmon used to
initiate the reintroduction are anticipated to come from Livingston
Stone NFH. CV spring-run Chinook salmon used to initiate the
reintroduction are anticipated to come from the FRH. The collection of
donor stock will be permitted only after issuance of permits under
section 10(a)(1)(A) of the ESA, which includes analysis under NEPA and
ESA section 7. The experimental population fish are expected to remain
geographically separate from fish in other populations of the SR
winter-run and CV spring-run Chinook salmon ESUs during the life stages
in which they remain in, or are returned to, the NEP Area. At all times
when members of the experimental populations are downstream of Shasta
and Keswick Dams, the experimental population designations will not
apply. Establishing experimental populations of SR winter-run and CV
spring-run Chinook salmon in the NEP Area would likely contribute to
the viability of the ESUs. Reintroduction is a recommended recovery
action in the Central Valley Recovery Plan (NMFS 2014). Designation of
SR winter-run and CV spring-run Chinook salmon in the NEP Area as
nonessential experimental populations would ensure that their
reintroduction does not impose undue regulatory restrictions on
landowners and others because this proposed rule would apply only
limited take prohibitions as compared to the prohibitions that
typically apply to SR winter-run and CV spring-run Chinook salmon. In
particular, this proposed rule expressly provides an exception for take
of NEP fish in the NEP Area provided that the take is incidental to
otherwise lawful activities and is unintentional, rather than due to
negligent conduct.
We further determine, based on the best available scientific
information, that the proposed experimental populations would not be
essential to the continued existence of the SR winter-run Chinook
salmon ESU or the CV spring-run Chinook salmon ESU, because absence of
the experimental populations would not be likely to appreciably reduce
the likelihood of the survival of the ESUs in the wild. However, as
described above, the experimental populations are expected to
contribute to the recovery of the SR winter-run and CV spring-run
Chinook salmon ESUs if reintroduction is successful. We therefore
propose that the experimental populations would be nonessential
experimental populations.
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 and draft EA (see ADDRESSES section
above). We request that submitted comments be relevant to the proposed
designation of the experimental populations in the NEP Area. 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,
comments should tell us the numbers or titles of the sections or
paragraphs that are unclearly written, which sections or sentences are
too long, the sections in which 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 more recent data
that becomes available. We are interested in all public comments, but
are specifically interested in obtaining feedback on:
(1) The best source of ESA-listed fish for establishing
experimental populations of SR winter-run and CV spring-run Chinook
salmon in the NEP Area and the scientific basis for such comments.
(2) The proposed NEP Area (geographical scope) for the experimental
population.
(3) The extent to which the experimental populations would be
affected by current or future Federal, State, Tribal, or private
actions within or adjacent to the experimental population area.
(4) Any necessary management restrictions, protective measures, or
other management measures that we may not have considered.
(5) The likelihood that the experimental populations will become
established in the NEP Area.
[[Page 30697]]
(6) Whether the proposed experimental populations are essential or
nonessential.
(7) Whether the proposed experimental population designations and
release will further the conservation of the species and whether we
have used the best available scientific information in making this
determination.
Information Quality Act and Peer Review
Pursuant to the Information Quality Act (Section 515 of Pub. L.
106-554), the Office of Management and Budget (OMB) issued a Final
Information Quality Bulletin for Peer Review, which was published 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 these criteria.
Classification
Executive Order 12866
This proposed rule has been determined to be not significant under
Executive Order 12866.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
This proposal would designate and authorize the release of
nonessential experimental populations of SR winter-run and CV spring-
run salmon in the NEP Area. While in the NEP Area, the experimental
populations would be protected from some types of take, but this
proposed action would impose no prohibitions on the take of the
experimental population fish that is incidental to otherwise lawful
activity and unintentional and not due to negligent conduct. The effect
of this proposed action would not increase the regulatory burdens
associated with the ESA on affected entities, including small entities,
to conduct otherwise lawful activities as a result of reintroduction of
SR winter-run and CV spring-run Chinook salmon to the NEP Area. If this
proposed action is adopted, the area affected by this rule includes the
entire NEP Area. Land ownership includes Federal lands and private
lands with the primary uses being recreation, forestry, water
management, power production, mining, transportation management, rural
and residential development, tourism and recreational fishing, and
livestock grazing. A substantial portion of both Shasta and Siskiyou
Counties are under the management of Federal or state resource
management agencies. Small entities make up a portion of owners using
the land for these uses and this proposed rule, if implemented, may
impact those uses for all entities, including small entities.
However, this proposed rule would apply only limited take
prohibitions as compared with the prohibitions that typically currently
apply to listed SR winter-run and CV spring-run Chinook salmon; in
particular, this proposed rule expressly provides an exception for the
take of experimental population fish in the NEP Area provided that the
take is incidental to otherwise lawful activity and unintentional and
not due to negligent conduct. Based on the nonessential experimental
population designations under this proposed rule, there would only be
the requirement under ESA section 7 (other than section (a)(1)
requiring Federal agencies, in consultation with NMFS as applicable
depending on the species, to use their authorities to further the
purposes of the ESA by carrying out programs for the conservation of
listed species) for Federal agencies to confer with NMFS with respect
to effects of agency actions on the experimental populations. This
requirement to confer with NMFS is not as burdensome on Federal
agencies as the requirement to consult, and no critical habitat could
be designated for the experimental populations. Due to the minimal
regulatory overlay provided by the nonessential experimental population
designations, we do not expect this rule to have any significant effect
on recreation, forestry, water management, power production, mining,
transportation management, rural development, tourism and recreational
fishing, livestock grazing or other lawful activities within the NEP
Area. As such, we do not expect this rule to have any significant
effect on any entities, including small entities that engage in these
activities in the NEP area.
For the reasons described above, this proposed rule would not have
a significant economic effect on a substantial number of small
entities. Accordingly, no initial regulatory flexibility analysis is
required, and none has been prepared.
Executive Order 12630
In accordance with Executive Order 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 Executive Order 13132, we have determined that
this proposed rule does not have federalism implications as that term
is defined in Executive Order 13132.
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
above). All appropriate NEPA documents will be finalized before this
rule is finalized.
Government-to-Government Relationship With Tribes (Executive Order
13175)
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, outlines the responsibilities of the Federal
Government in matters affecting tribal
[[Page 30698]]
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 in the NEP Area. As
part of NMFS's obligations under the National Historic Preservation
Act, NMFS inquired with federally recognized and non-federally
recognized tribes with potential interest in the NEP Area to inform
them of the proposed rule and solicit information on cultural resources
eligible for listing on the National Register of Historic Places
(letters dated Feb. 5, July 14, and July 27, 2016, from Maria Rea,
Central Valley Office Supervisor, NMFS). NMFS invites tribes to meet
with us to have detailed discussions that could lead to government-to-
government consultation meetings with tribal governments. We will
continue to coordinate with potentially affected tribes as we gather
public comment on this proposed rule and consider next steps.
References Cited
A complete list of all references cited in this proposed rule is
available upon request from the National Marine Fisheries Service
office (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 223
Endangered and threatened species.
Dated: May 5, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 223 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. In Sec. 223.102, amend the table in paragraph (e) under the heading
for ``Fishes'' by adding the entries for ``Salmon, Chinook (Central
Valley spring-run ESU-XN Shasta)'' and ``Salmon, Chinook (Sacramento
River winter-run ESU-XN Shasta)'' after the entry for ``Salmon, Chinook
((Central Valley spring-run ESU-XN Yuba)'' and before the entry for
``Salmon, Chinook (Lower Columbia River ESU)'' to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
----------------------------------------------------------------------------------------- Citation(s) for listing
Description of listed determinations(s) Critical habitat ESA rules
Common name Scientific name entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
FISHES
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Salmon, Chinook (Central Valley Oncorhynchus Central Valley spring-run [Federal Register NA...................
spring-run ESU-XNShasta). tshawytscha. Chinook salmon only when, citation and date when
and at such times as, they published as a final
are found in the NEP Area rule].
(from Shasta Dam up to Pit
7 Dam on the Pit River,
McCloud Dam on the McCloud
River, and Box Canyon Dam
on the upper Sacramento
River. All other
tributaries flowing into
Shasta Reservoir up to the
ridge line, including
tributaries below Pit 7
Dam, McCloud Dam, and Box
Canyon Dam, up to the
ridge line would be
included in the NEP Area).
Salmon, Chinook (Sacramento winter- Oncorhynchus Sacramento winter-run [Federal Register NA...................
run ESU-XNShasta). tshawytscha. Chinook salmon only when, citation and date when
and at such times as, they published as a final
are found in the NEP Area rule].
(from Shasta Dam up to Pit
7 Dam on the Pit River,
McCloud Dam on the McCloud
River, and Box Canyon Dam
on the upper Sacramento
River. All other
tributaries flowing into
Shasta Reservoir up to the
ridge line, including
tributaries below Pit 7
Dam, McCloud Dam, and Box
Canyon Dam, up to the
ridge line would be
included in the NEP Area).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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).
[[Page 30699]]
* * * * *
0
3. In Sec. 223.301, add paragraph (e) to read as follows:
Sec. 223.301 Special rules--marine and anadromous fishes.
* * * * *
(e) McCloud and Upper Sacramento Rivers Sacramento River winter-run
and Central Valley spring-run Chinook Salmon Experimental Populations
(Oncorhynchus tshawytscha). (1) Status of McCloud and Upper Sacramento
Rivers Sacramento River winter-run and Central Valley spring-run
Chinook salmon under the ESA. The McCloud and Upper Sacramento Rivers
Sacramento River winter-run and Central Valley spring-run Chinook
salmon populations identified in paragraph (e)(2) of this section are
designated as nonessential experimental populations under section 10(j)
of the ESA and shall be treated as a ``threatened species'' pursuant to
16 U.S.C. 1539(j)(2)(C).
(2) McCloud and Upper Sacramento Rivers Sacramento River winter-run
and Central Valley spring-run Chinook Salmon Experimental Populations.
All Sacramento River winter-run and Central Valley spring-run Chinook
salmon within the experimental population area in the McCloud and Upper
Sacramento Rivers upstream of Shasta Dam, as defined here, are
considered part of the McCloud and Upper Sacramento Rivers Sacramento
River winter-run and Central Valley spring-run Chinook salmon
experimental populations. The NEP Area extends from Shasta Dam up to
Pit 7 Dam on the Pit River, McCloud Dam on the McCloud River, and Box
Canyon Dam on the upper Sacramento River. All other tributaries flowing
into Shasta Reservoir up to the ridge line, including tributaries below
Pit 7 Dam, McCloud Dam, and Box Canyon Dam, up to the ridge line are
included in the NEP Area. All other areas above Pit 7 Dam on the Pit
River, McCloud Dam on the McCloud River, and Box Canyon Dam on the
upper Sacramento River are not part of the NEP Area. The NEP Area
extends up to the ridgelines to account for watershed processes and
ends at the aforementioned dams because these dams lack fish passage
facilities. The NEP Area is part of the species' historical range. The
NEPs are all SR winter-run and CV spring-run Chinook salmon, including
fish released or propagated, naturally or artificially, within the NEP
Area.
(3) Prohibitions. Except as expressly allowed in paragraph (e)(4)
of this section, all prohibitions of section 9(a)(1) of the ESA (16
U.S.C. 1538 (a)(1)) apply to fish that are part of the McCloud and
Upper Sacramento Rivers Sacramento River winter-run and Central Valley
spring-run Chinook salmon nonessential experimental populations
identified in paragraph (e)(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 (e)(2) of this
section are not prohibited by this section:
(i) Any taking of experimental populations of Sacramento River
winter-run or Central Valley spring-run Chinook salmon by authorized
governmental entity personnel acting in compliance with 50 CFR
223.203(b)(3) 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.
(ii) Any taking of experimental populations of Sacramento River
winter-run or Central Valley spring-run Chinook salmon that is
unintentional, not due to negligent conduct, and incidental to, and not
the purpose of, the carrying out of an otherwise lawful activity.
(iii) Any taking of experimental populations of Sacramento River
winter-run or Central Valley spring-run Chinook salmon pursuant to a
permit issued by NMFS under section 10 of the ESA (16 U.S.C. 1539) and
regulations in part 222 of this chapter applicable to such a permit.
* * * * *
[FR Doc. 2023-09967 Filed 5-11-23; 8:45 am]
BILLING CODE 3510-22-P