Rule2022-27953
Endangered and Threatened Species: Designation of a Nonessential Experimental Population of Central Valley Spring-Run Chinook Salmon in the Upper Yuba River Upstream of Englebright Dam, Authorization for Release, and Adoption of Limited Protective Regulations Under the Endangered Species Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 28, 2022
Effective
January 27, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
We, NMFS, designate and authorize the release of a nonessential experimental population (NEP or experimental population) of Central Valley (CV) spring-run Chinook salmon (Oncorhynchus tshawytscha) in the upper Yuba River and its tributaries upstream of Englebright Dam, California, and under the Endangered Species Act (ESA), establish a limited set of take exceptions for the experimental population. Successful reintroduction of a population within the species' historical range would contribute to its viability and further its conservation. The issuance of limited protective regulations for the conservation of the species would provide assurances to the people of the upper Yuba River watershed. 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.
Full Text
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<title>Federal Register, Volume 87 Issue 248 (Wednesday, December 28, 2022)</title>
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[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Rules and Regulations]
[Pages 79808-79818]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27953]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 221219-0278]
RIN 0648-BK00
Endangered and Threatened Species: Designation of a Nonessential
Experimental Population of Central Valley Spring-Run Chinook Salmon in
the Upper Yuba River Upstream of Englebright Dam, Authorization for
Release, and Adoption of Limited Protective Regulations Under the
Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of availability of a final
environmental assessment.
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SUMMARY: We, NMFS, designate and authorize the release of a
nonessential experimental population (NEP or experimental population)
of Central Valley (CV) spring-run Chinook salmon (Oncorhynchus
tshawytscha) in the upper Yuba River and its tributaries upstream of
Englebright Dam, California, and under the Endangered Species Act
(ESA), establish a limited set of take exceptions for the experimental
population. Successful reintroduction of a population within the
species' historical range would contribute to its viability and further
its conservation. The issuance of limited protective regulations for
the conservation of the species would provide assurances to the people
of the upper Yuba River watershed. 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.
[[Page 79809]]
DATES: The final rule is effective January 27, 2023.
ADDRESSES: The Final EA and other reference materials regarding this
final rule can be obtained at NMFS's National Environmental Policy Act
(NEPA) website at: <a href="https://www.westcoast.fisheries.noaa.gov/publications/nepa/nepa_documents.html">https://www.westcoast.fisheries.noaa.gov/publications/nepa/nepa_documents.html</a>. or by submitting a request to
the Assistant Regional Administrator, California Central Valley Office,
West Coast Region, NMFS, 650 Capitol Mall, Suite 5-100, Sacramento, CA
95814.
FOR FURTHER INFORMATION CONTACT: Steve Edmonson, NMFS, 650 Capitol
Mall, Suite 5-100, Sacramento, CA 95814, 916-930-3600, or Adrienne
Lohe, NMFS Office of Protected Resources, 301-427-8442.
SUPPLEMENTARY INFORMATION:
Background Information Relevant to Experimental Population Designation
On December 11, 2020, NMFS published a proposed rule in the Federal
Register (85 FR 79980) for the designation of a NEP and authorization
for release under ESA section 10(j) and the adoption of limited
protective regulations under ESA section 4(d). The proposed rule also
announced the availability of a final EA for the proposed rule.
NMFS listed the CV spring-run Chinook salmon Evolutionarily
Significant Unit (ESU) \1\ as threatened under the ESA, 16 U.S.C. 1531
et seq., 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 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 the California Endangered
Species Act (CESA), California Fish and Game Code, Division 3, Chapter
1.5.
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\1\ The ESA defines ``species'' to include ``any distinct
population segment of any species of vertebrate fish or wildlife
which interbreeds when mature'' (16 U.S.C. 1532(16); see also 50 CFR
424.02). For Pacific salmon, NMFS determined that an ESU will be
considered a distinct population segment and thus a species (56 FR
58612, November 20, 1991). A group of Pacific salmon is considered
an ESU if it is substantially reproductively isolated from other
nonspecific population units, and represents an important component
in the evolutionary legacy of the species.
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In 2014, we adopted a final recovery plan for the CV spring-run
Chinook salmon ESU (79 FR 42504, July 22, 2014). The Central Valley
recovery plan identifies re-establishing populations of 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 Englebright
Dam on the Yuba River (Yuba and Nevada Counties, California), would aid
in recovery of the ESU by increasing abundance, spatial structure and
diversity and by reducing the risk of extinction to the ESU as a whole.
NMFS is issuing a rule to (a) designate and authorize the release
of an experimental population of CV spring-run Chinook salmon pursuant
to ESA section 10(j) in the upper Yuba River watershed upstream of
Englebright Dam, and (b) establish take prohibitions for the
experimental population and exceptions for particular activities.
Supplemental Information
This is a final rule stemming from a proposed rule that was
published December 11, 2020 (85 FR 79980). The nonessential
experimental population (NEP) Area includes the entire upper Yuba River
watershed, which extends from the crest of the Sierra-Nevada Mountains
down to Englebright Dam. It is located north of the cities of Grass
Valley and Nevada City, and east of the cities of Marysville and Yuba
City, California. The NEP Area is part of the species' historical
range. The upper Yuba River experimental population is all CV spring-
run Chinook salmon, including fish released or propagated, naturally or
artificially, within the NEP Area.
Statutory and Regulatory Framework for Experimental Population
Designation
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) that it deems
necessary and advisable for species conservation, including prohibiting
take. The experimental population of CV spring-run Chinook salmon must
generally be treated as a threatened species. Therefore, we issue
tailored protective regulations under ESA section 4(d) for the
experimental population of CV spring-run Chinook salmon to identify
take prohibitions necessary and advisable 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
[[Page 79810]]
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 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 three experimental populations (78 FR 2893,
January 15, 2013; 78 FR 79622, December 31, 2013; 79 FR 40004, July 11,
2014) 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, 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:
<bullet> Any possible adverse effects on extant populations of a
species as a result of removal of individuals, eggs, or propagules for
introduction elsewhere;
<bullet> The likelihood that any such experimental population will
become established and survive in the foreseeable future;
<bullet> The effects that establishment of an experimental
population will have on the recovery of the species; and
<bullet> 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 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):
<bullet> 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);
<bullet> 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;
<bullet> 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
<bullet> 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 trend of CV spring-run
Chinook salmon are summarized by Healy (1991), United States Fish and
Wildlife Service (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 (O. mykiss) 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., wildfire, volcanic eruption, et cetera)
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 the ESA
section
[[Page 79811]]
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). An
analysis conducted by NMFS' Southwest Fisheries Science Center (Johnson
and Lindley, 2016) indicated that the extant independent populations of
the CV spring-run Chinook salmon ESU remained at a moderate to low
extinction risk since the last status review (Williams et al., 2011).
The analysis noted some improvements in the viability of the ESU,
particularly with respect to the increased spatial diversity of the
dependent Battle Creek and Clear Creek populations. The analysis
identified as key threats the recent catastrophic declines of many of
the extant populations, high pre-spawn mortality during the 2012-2015
drought in California, uncertain juvenile survival due to drought and
ocean conditions, as well as straying of CV spring-run Chinook salmon
from the Feather River Hatchery (FRH) (Johnson and Lindley, 2016).
Analysis of the Statutory Requirements
1. Will authorizing release of an experimental population further the
conservation of the species?
Section 3(3) of the ESA, 16 U.S.C. 1532(3), defines
``conservation'' as the use of all methods and procedures that 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
considered in determining if authorizing release of an experimental
population in the NEP Area would further the conservation of 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 CV spring-run
Chinook salmon populations found in the Central Valley will be used in
establishing the experimental populations in the NEP Area.
We have preliminarily identified a donor source for reintroduction
into the upper Yuba River as CV spring-run Chinook salmon produced from
the FRH. The Yuba River is a tributary to the Feather River and CV
spring-run Chinook salmon from the FRH are the geographically closest
donor source that could be used with minimal impact to the wild
population for reintroduction into the upper Yuba River. The donor
stock raised at the FRH may include CV spring-run Chinook salmon from
either the Feather or Yuba River. NMFS, in consultation with the
California Department of Fish and Wildlife (CDFW), may later consider
diversifying the donor stock with CV spring-run Chinook salmon from
other nearby streams if those populations can sustain removal of fish
without adverse population level effects.
Use of donor stock from the FRH for the initial phases of a
reintroduction program will minimize the number of individuals needed
from existing wild populations. Donor stock supplementation, if
necessary, would be dependent upon genetic diversity needs and the
extent of adverse effects to other populations. Although donor stocks
have not been determined, fish produced from the FRH are expected to be
the initial source of individuals to establish an experimental
population of CV spring-run Chinook salmon in the NEP Area. Any
collection of CV spring-run Chinook salmon would be subject to NMFS's
approval of a permit under ESA section 10(a)(1)(A), which potentially
includes a Hatchery Genetic Management Plan (HGMP) in relation to a
hatchery stock and will include additional analysis under NEPA and ESA
section 7. Once a self-sustaining population is established, it is
anticipated that the FRH contribution (and contributions from other
locations) of CV spring-run Chinook salmon would be phased out.
We also consider the suitability of habitat available to the
experimental population. NMFS initiated a habitat assessment of the
upper Yuba River and determined conditions were suitable for Chinook
salmon spawning, adult holding, and juvenile rearing (Stillwater
Sciences 2013). The relative abundance of habitat types, habitat
quality and environmental conditions vary between the North, Middle,
and South Yuba Rivers. Under current conditions when compared to one
another, habitat conditions are most suitable in the North Yuba River.
The Middle Yuba River maintains significant quantities of suitable
habitat and habitat conditions are currently less suitable in the South
Yuba River. Habitat conditions in the Middle and South Yuba Rivers will
likely improve with additional instream flow releases from dams in the
upper watersheds as part of the Federal Energy Regulatory Commission's
(FERC) relicensing process pursuant to the Federal Power Act (FPA).
In addition, there are Federal and state laws and regulations that
will help ensure the establishment and survival of the experimental
population 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 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.
FERC, pursuant to the 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
[[Page 79812]]
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 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, and Chinook salmon EFH was identified for the
upper Yuba River upstream of Englebright Dam (50 CFR 660.412(a) and
part 660, subpart H, table 1). 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)).
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. 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 the experimental
population 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 a viable population 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 CV spring-
run Chinook salmon that include securing existing populations and
reintroducing this species into historically occupied habitats upstream
of rim dams in the Central Valley of California (NMFS 2014). The
Central Valley recovery plan concludes, and we continue to agree, that
establishing an experimental population in the NEP Area that persists
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
CV spring-run Chinook salmon, in addition to other actions being
implemented throughout the Central Valley, which are described next,
will contribute to this species' near-term viability and recovery.
Across the Central Valley, a number of actions are being undertaken
to improve habitat quality and quantity for CV spring-run Chinook
salmon. Collectively, implementation of the San Joaquin River
Restoration Program (<a href="https://www.restoresjr.net/">https://www.restoresjr.net/</a>), Battle Creek Salmon
and Steelhead Restoration Project (<a href="https://www.usbr.gov/mp/battlecreek/">https://www.usbr.gov/mp/battlecreek/</a>
), and the Central Valley Flood Protection Plan (Department of Water
Resources--DWR 2011) 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.
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 CV spring-run Chinook salmon
into the NEP Area 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 population. The NEP Area is sparsely populated and ongoing
state, Federal and local activities include forest management, limited
mining, road maintenance, limited residential development, grazing, and
tourism and recreation. These activities will likely continue into the
future and are anticipated to have minor impacts to 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 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, 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 population in the upper Yuba River in the foreseeable
future. Although the donor source for this reintroduction effort is
anticipated to include hatchery-origin individuals from the FRH, based
on the factors discussed above, we conclude it is probable that a self-
sustaining experimental population of CV spring-run Chinook salmon will
become established and survive in the upper Yuba River. Furthermore, we
conclude that such a self-sustaining experimental population of
genetically compatible individuals is likely to further the
conservation of the species, as discussed above.
2. Identification of the Experimental Population and Geographic
Separation From the Nonexperimental Populations of the Same Species
Section 10(j)(2)(B) of the ESA requires 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. The NEP Area would
extend upstream from Englebright Dam and include the North, Middle, and
South Yuba Rivers and their tributaries up to the ridgeline. The
experimental
[[Page 79813]]
population will be geographically separated from the extant ESU of CV
spring-run Chinook salmon while in the NEP Area, but will intermingle
with other Chinook salmon populations as they migrate downstream of the
NEP Area, while in the ocean, and on part of their upstream spawning
migration. The ``experimental'' population designation is
geographically based and does not travel with the fish outside the NEP
Area.
The NEP Area provides the requisite level of geographic separation
because the extant population of CV spring-run Chinook salmon are
currently extirpated from this area due to the presence of Englebright
Dam, which blocks their upstream migration. Straying of fish from other
spring-run Chinook populations into the NEP Area is currently not
possible due to the presence of this dam. As a result, the geographic
description of the extant CV spring-run Chinook ESU does not include
the NEP Area.
NMFS anticipates that 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 broodstock collection of returning adults
that originated from the experimental population. Any marking of
individuals of the experimental population, 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 broodstock collection
of returning adults. As discussed above, the experimental population is
identified based on the geographic location of the fish. Indeed, if the
reintroduction is 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 Englebright Dam in the lower Yuba, lower Feather and
Sacramento Rivers, or in the ocean, any such unmarked fish (juveniles
and adults alike) would not be considered members of an experimental
population. They would be considered part of the CV spring-run Chinook
salmon ESU currently listed under the ESA. Likewise, any fish that were
marked for release into the NEP Area would not be considered part of
the experimental population once they left the NEP Area; rather, they
would be considered part of the ESU 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 provides
an experimental population that if lost, the survival of the species in
the wild would likely be substantially reduced.
In determining 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 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 population will exist as a separate
population from those in the Sacramento River basin and will not be
essential to the survival of those populations. Based on these
considerations, we conclude the loss of the experimental population of
CV spring-run Chinook in the NEP Area is not likely to appreciably
reduce the likelihood of the survival of the species in the wild.
Accordingly, NMFS is designating this experimental population as
nonessential. Under section 10(j)(2)(C)(ii) of the ESA we cannot
designate critical habitat for a nonessential experimental population.
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, 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 are
exercising the authority to issue protective regulations under ESA
section 4(d) for the experimental population of CV spring-run Chinook
salmon to identify take prohibitions necessary to provide for the
conservation of the species and otherwise provide assurances to people
in the NEP Area.
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 ESA section
10(j) experimental population designation, we adopt protective
regulations under ESA section 4(d) for the experimental population that
would prohibit take of CV spring-run Chinook salmon that are part of
the experimental population, except in the following circumstances in
the NEP Area:
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 \2\ 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
---------------------------------------------------------------------------
\2\ 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
[[Page 79814]]
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 an experimental population release
will require new monitoring programs developed specifically for this
purpose. NMFS anticipates monitoring in the NEP Area, including fish
passage efficiency, spawning success, adult and smolt injury and
mortality rates, juvenile salmon collection efficiencies, competition
with resident species, predation, disease and other types of monitoring
will be necessary to gauge the success of the program. We anticipate
the status of a reintroduced population of CV spring run Chinook salmon
in the NEP Area would be evaluated during NMFS' five-year status review
process under ESA 4(c)(2). During the 5-year status review, NMFS may
evaluate whether the current designation under ESA section 10(j) as a
nonessential experimental population is still warranted.
Summary of Comments and Responses
The public comment period for the proposed rule and draft EA was
open from December 11, 2020, until March 12, 2021. Public scoping
meetings were held February 3 and 11, 2021, to provide background on
the project, answer questions and provide details on how to submit
written comments. The purpose of the comment period is to help us
better understand the concerns of the public on the experimental
population designation, take and take exceptions, and associated draft
EA. During the comment period, NMFS received 54 written letters with
comments, germane to the rulemaking, from entities representing various
agencies, nongovernmental organizations, and individuals.
In addition, NMFS engaged in prior public outreach since 2009
including numerous meetings, forums, and discussions regarding
reintroduction in the upper Yuba River watershed. Outreach included
multi-stakeholder forums, both federally recognized and non-recognized
tribes, the Yuba Salmon Forum, the North Yuba Reintroduction
Initiative, the Yuba Salmon Partnership and the Yuba Salmon
Reintroduction Working Group. These various groups included a diverse
array of stakeholders familiar with the Yuba River watershed, including
water agencies, tribes, county officials, landowners and managers, and
non-governmental organizations.
EA Appendix C contains the public comment letters received and EA
Appendix D contains detailed responses. A summary of the comments and
our responses to those comments is presented here. Please review EA
Appendix D for additional comments and responses to comments not
included herein.
Comment. Several commenters stated that we needed to be more
specific regarding what actions would be exempted from ESA Section 9
liability by the 4(d) rule, that we should have included more specific
examples of the types activities to be exempted, that we needed to
consult with affected parties before promulgating a 4(d) rule, and that
we should extend the 4(d) rule to include downstream areas.
Response. The limited protective regulations would prohibit take of
the experimental population of CV spring-run Chinook salmon located
within the NEP Area, except in certain circumstances as described in
the EA and proposed rule, which includes any take that is incidental to
an otherwise lawful activity and is unintentional, and not due to
negligent conduct. We did not adopt the approach of listing all take
excepted activities, but we did include some examples of common
activities likely to occur in the NEP Area.
Expanding the 4(d) rule to include areas downstream of the NEP Area
to the current listed range of the CV spring-run Chinook salmon ESU is
not necessary because an existing 4(d) rule is in place for downstream
areas. When CV spring-run Chinook salmon that originated from within
the NEP Area are downstream of Englebright Dam, they will be covered
under the existing 4(d) rule and will have the same protections as
individuals in the extant ESU.
Comment. Commenters stated that the EA was not clear or not
consistent with the proposed rule with respect to authorization of the
release of fish into the NEP Area.
Response. The EA preferred alternative and the proposed rule both
describe the proposed action as the designation of a nonessential
experimental population under ESA section 10(j) for any CV spring-run
Chinook salmon released into the upper Yuba River watershed by a
permittee, authorization of the release of a nonessential experimental
population of CV spring-run Chinook salmon into the NEP Area, and
establishing take prohibitions for CV spring-run Chinook salmon in the
NEP Area and exceptions under ESA section 4(d).
NMFS anticipates a reintroduction effort will occur in the upper
Yuba River with the goal of furthering the conservation and recovery of
CV Chinook salmon. NMFS' rulemaking designates and authorizes release
of a nonessential experimental population of CV spring-run Chinook
salmon, pursuant to ESA section 10(j), in the upper Yuba River and its
tributaries upstream of Englebright Dam, and establishes take
prohibitions for the nonessential experimental population and
exceptions for particular activities under ESA section 4(d). Release of
fish would not occur until after the completion of additional future
actions as part of either a pilot reintroduction program and/or a long-
term project-specific reintroduction effort. NMFS' rulemaking is an
administrative step regarding the NEP designation and authorization for
release of CV spring-run Chinook salmon. The rulemaking does not
include or authorize specific actions regarding the capture, transport
of CV spring-run Chinook salmon individuals or identification of
precise release locations. These steps are necessary to implement a
future reintroduction effort. NMFS intends to develop a reintroduction
plan in cooperation with CDFW and other stakeholders prior to the
release of CV spring-run Chinook salmon into the NEP Area. The
reintroduction plan will include details regarding the source
population, numbers and life stages of fish to be released, methods of
fish transport, how fish will be marked and release locations within
the NEP Area. Additionally, threatened CV spring-run Chinook salmon
individuals from outside the NEP Area will not be captured, transported
or released into the NEP Area until the necessary State of California
and Federal permits are acquired by the permittee(s) for either a pilot
program or long-term project-specific reintroduction effort. For
example, future permitting under section 10(a)(1)(A) will be required
once a reintroduction plan is submitted for regulatory review. Any
collection of CV spring-run Chinook salmon as part of a pilot program
or a project-specific reintroduction plan would be subject to NMFS's
approval of a permit under ESA section 10(a)(1)(A), which will require
additional analyses of the specific plan for capture, transport, and
release of individuals under the National Environmental Policy Act
(NEPA) and ESA section 7.
Comment. Some commenters thought NMFS has not worked cooperatively
with stakeholders.
Response. NMFS engaged in numerous meetings, forums, and
discussions regarding reintroduction in the upper Yuba River watershed
since at least 2009 including multi-stakeholder forums, federally
recognized and non-federally recognized tribes, the Yuba Salmon Forum,
the North Yuba
[[Page 79815]]
Reintroduction Initiative, the Yuba Salmon Partnership, the Sierra
County Fish and Game Commission, and the Yuba Salmon Reintroduction
Working Group. These various groups included a diverse array of
stakeholders familiar with the Yuba River watershed, including water
agencies, tribes, county officials, landowners and managers, and non-
governmental organizations.
Comment. We received several comments regarding instream flows that
expressed concerns related to changes to instream flows and potential
effects to foothill yellow-legged frogs, FERC licenses, water supply
and whether baseline flows in the NEP Area would support a reintroduced
population of CV spring-run Chinook salmon.
Response. The proposed action does not include changes to instream
flows including changes to yellow-legged frog habitat or water supply.
NMFS reviewed the best available scientific and commercial information
regarding the suitability of habitat in the NEP Area to support key
life stages of CV spring-run Chinook salmon including a review by the
Yuba Salmon Forum (2013) and Stillwater (2013). Both reports indicate
that riverine flows necessary to support the aforementioned life stages
present in the upper watershed. NMFS recognizes that other agencies
with authorities under the FPA may request FERC implement flow
recommendations if anadromous fish are present below FERC regulated
facilities. NMFS assumes that other agencies will implement laws,
plans, and policies under their regulatory jurisdiction. NMFS cannot
predict how other agencies will implement their regulatory framework if
a nonessential population of CV spring-run Chinook salmon is
reintroduced into the NEP Area.
Comment. A few commenters stated that we ignored key components of
NMFS' recovery plan that provides a framework for reintroduction.
Response. The NEP Area (the upper Yuba River watershed) was
identified as a high priority for reintroduction in the NMFS' Central
Valley recovery plan (NMFS 2014). The recovery plan (Action ID YUR-1.1)
recommends developing and implementing ``a program to reintroduce
spring-run Chinook salmon and steelhead to historic(al) habitats
upstream of Englebright Dam. The 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.'' NMFS rulemaking is an initial regulatory step
towards implementing reintroduction into the upper Yuba River as
recommended in the recovery plan, by authorizing release of a
nonessential experimental population into the NEP Area and providing
substantial regulatory relief through a 4(d) rule.
Comment. Several commenters stated that we did not comply with 50
CFR 222.502(b), which requires us to consider four factors: (1) the
adverse effects on extant populations as a result of removal of
individuals, eggs, or propagules for introduction elsewhere; (2) the
likelihood that any such experimental population will become
established and survive in the foreseeable future; (3) the effects that
establishment of an experimental population will have on the recovery
of the species; and (4) 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.
Response. NMFS evaluated all of the factors in the EA: (1) The EA
describes that donor stock will likely come from the FRH. Other
potential donor stocks would only be used if those populations could
sustain the removal of fish without adverse population level effects.
Any collection of CV spring-run Chinook salmon would be subject to
NMFS' approval of a permit under ESA section 10(a)(l)(A), which
includes an HGMP and an analysis under NEPA and ESA section 7. Thus,
NMFS anticipates that there will be a need for future authorization for
the collection of CV spring-run Chinook salmon, an HGMP, subsequent
issuance of a 10(a)(1)(A) permit, and a future analysis under the ESA
and NEPA when NMFS receives a permit application.
(2) Re-establishing populations of CV spring-run Chinook salmon
upstream of California's Central Valley rim dams, including the upper
Yuba River, would aid in the conservation and recovery of the CV
spring-run Chinook salmon ESU by increasing abundance and productivity,
improving spatial structure and diversity, and reducing the risk of
extinction (see EA section 1.2.5). NMFS' 2014 Central Valley recovery
plan emphasizes that reintroduction of all ESA listed Central Valley
salmonids into some of their currently blocked but historically
accessible habitats is necessary for their conservation and recovery.
Reintroduction into the upper Yuba River clearly follows recovery plan
recommendations and is anticipated to directly contribute to the
conservation of the ESU. In contrast, not moving forward with a
reintroduction will ensure that the CV spring-run Chinook salmon remain
at high risk of extinction.
(3) Included in NMFS 10(j) regulations is the requirement that NMFS
have 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. The ESA requires that NMFS
conduct a status review every five years for all listed species under
its regulatory jurisdiction. These requirements would ensure NMFS
tracks the status of the experimental population and would develop
information to assess the effectiveness of the rule, and if necessary,
would trigger revision to the regulation through the rulemaking
process. This would ensure that the reintroduction of CV spring-run
Chinook to the NEP Area is providing for the conservation of the
species as expected. Also, it would ensure the nonessential designation
is reviewed periodically, and updated by regulation, if necessary. The
best available information on habitat in the NEP Area indicates
suitable habitat exists for CV spring-run Chinook salmon.
(4) EA Section 7.4 describes the effects of past, present, and
reasonably foreseeable future actions. EA section 7.5 describes
incremental impacts when added to other past, present, and reasonably
foreseeable future actions. Release locations will occur in reaches
with suitable habitat for the experimental population within the NEP
Area.
Comment. Several commenters questioned whether the non-essential
designation could be changed to an essential designation.
Response. We concluded that it is appropriate to designate the
reintroduced population as non-essential after determining that the
loss of the reintroduced population would be unlikely to appreciably
reduce the likelihood of the survival of the species in the wild.
Climate change will likely worsen the status of the extant CV spring-
run Chinook salmon ESU absent significant restoration and enhancement
actions in both currently accessible and historical but inaccessible
habitats. The limited, impaired, and stressed conditions of currently
accessible habitat are anticipated to deteriorate further due to
climate change, rendering many currently accessible riverine reaches
unsuitable for migration, holding, spawning, and rearing. Providing
access to high quality, cold water, historical habitat that is blocked
by dams will help address and partially offset these impacts. NMFS will
review the status of CV spring-run Chinook salmon in the NEP Area as
part of our 5-year review process. During the 5-year
[[Page 79816]]
review NMFS may evaluate whether the current designation under ESA
section 10(j) as a nonessential experimental population is still
warranted. To date, none of the NMFS nonessential experimental
population designations have been changed to an essential experimental
population status. Furthermore, to our knowledge, none of the USFWS'
more than 60 nonessential experimental population designations have
been changed to an essential experimental population status. Congress
envisioned that in most cases, experimental populations would be
nonessential.
Comment. Some commenters requested that we use marks or genetic
tags to identify the experimental population and to help distinguish
them from other fish when outside of the NEP Area.
Response. If and when a permit application for a reintroduction is
received by NMFS and tagging is determined necessary, methods to mark
experimental population fish will be identified.
Comment. Some commenters stated that the NEP Area described in the
proposed rule and draft EA was too broad. A few commenters wanted the
NEP Area to be limited to the North Yuba River. Some commenters stated
that there were inconsistencies between the proposed rule and the draft
EA relative to where fish would be released in the NEP Area.
Response. We determined that limiting the release to the North Yuba
River could unduly constrain future opportunities and limit
participation from key potential partners with interest in the upper
Yuba River. Nonetheless, NMFS also acknowledges the high quality and
quantity of available habitat in the North Yuba River relative to the
Middle and South Yuba Rivers. A future reintroduction effort in the
upper watershed, regardless of location, would need to occur in
locations that provide suitable habitat, in sufficient quantity, for
establishment of an independent population(s) of CV spring-run Chinook
salmon into the foreseeable future.
The NEP Area, as described in the EA and rule, includes the entire
upper Yuba River watershed, which extends from the crest of the Sierra-
Nevada Mountains down to Englebright Dam. As described in the draft EA
and proposed rule, the amount of potentially suitable habitat for
anadromous salmonids in the upper Yuba River varies as a function of
flow and related environmental conditions such as water temperature.
Dams and water diversions in the NEP Area currently limit suitable
habitat in some areas. NMFS anticipates a future reintroduction effort
would target stream reaches with suitable habitat. The NEP Area
includes more than the actual riverine areas where habitat could
support reintroduced fish. The size of the NEP Area was specifically
designed to account for possible volitional straying of CV spring-run
Chinook salmon from areas targeted for release as part of a future
reintroduction effort. The NEP Area also expands beyond riverine areas
in order to provide ESA section 4(d) coverage for otherwise legal
activities.
After review of the comments and further consideration, we have
decided to adopt the proposed rule that was published in the Federal
Register (85 FR 79980) on December 11, 2020, with only non-substantive
editorial changes. Minor modifications were made to remove unnecessary
regulatory language and provide clarity. The modifications make no
change to the substance of the rule.
Findings
Based on the best available information, we determine that the
designation of and release of a nonessential experimental population of
CV spring-run Chinook salmon in the upper Yuba River NEP Area will
further the conservation of CV spring-run Chinook salmon. CV spring-run
Chinook salmon used to initiate the reintroduction are anticipated to
come from the FRH using either donor stock from the Feather or Yuba
Rivers, which is part of the CV spring-run Chinook salmon ESU. The
collection of donor stock from the FRH will require issuance of a
permit 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 the extant CV spring-
run Chinook salmon ESU during the life stages in which they remain in,
or are returned to, the NEP Area. At all times when members of the
experimental population are downstream of Englebright Dam, the
experimental population designation will not apply. Establishing an
experimental population of CV spring-run Chinook salmon in the NEP Area
would likely contribute to the viability of the ESU. Authorization for
the experimental population release is consistent with the 2014 Central
Valley recovery plan, while at the same time ensuring that a
reintroduction will not impose undue regulatory restrictions on
landowners and third parties.
We further determine, based on the best available scientific
information, that the experimental population would not be essential to
the continued existence of the CV spring-run Chinook salmon ESU,
because absence of the experimental population would not be likely to
appreciably reduce the likelihood of the survival of the ESU in the
wild. However, as described above, the experimental population is
expected to contribute to the recovery of the CV spring-run Chinook
salmon ESU if reintroduction is successful. We therefore designate the
population to be released as a nonessential experimental population.
Information Quality Act and Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review pursuant to the
Information Quality Act (section 515 of Pub. L. 106-554) in the Federal
Register on January 14, 2005 (70 FR 2664). The Bulletin established
minimum peer review standards, a transparent process for public
disclosure of peer review planning, and opportunities for public
participation with regard to certain types of information disseminated
by the Federal Government. The peer review requirements of the OMB
Bulletin apply to influential or highly influential scientific
information disseminated on or after June 16, 2005. There are no
documents supporting this rule that meet this criteria.
Classification
Executive Order 12866
This final rule has been determined by the Office of Management and
Budget to be not significant under Executive Order 12866.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule
[[Page 79817]]
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 proposed rule stage that this
rule will not have a significant effect on external entities, including
small businesses, small organizations, or small governments. No
comments were received regarding the economic impact of this final rule
on small entities. The factual basis for this certification was
published with the proposed rule and is not repeated here. Because this
rule requires no additional regulatory requirements for activities
within the affected area, a final regulatory flexibility analysis is
not required and one was not prepared.
Executive Order 12630
In accordance with Executive Order 12630, the final rule does not
have significant takings implications. A takings implication assessment
is not required because this final 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 final 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 final rule does not have federalism implications as that term as
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 final 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
final rule. We made the draft EA available for public comment along
with the rule, received 54 letters with comments germane to the rule,
and responded to those comments in an Appendix to the EA. We have
prepared a final EA and Finding of No Significant Impact (FONSI) on
this action and have made these documents available for public
inspection (see ADDRESSES section).
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 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 rule and solicit information on cultural resources eligible
for listing on the National Register of Historic Places (letters dated
May 23, 2017, from Maria Rea, Central Valley Office Supervisor, NMFS,
and letters dated May 26, 2020, from Cathy Marcinkevage, Central Valley
Office Supervisor, NMFS). To date responses have been limited and no
concerns over the proposed rule have been raised. 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 the affected tribes.
References Cited
A complete list of all references cited in this final 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,
Transportation.
Dated: December 20, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 223 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. In Sec. 223.102, amend the table in paragraph (e) by adding an
entry for ``Salmon, Chinook (Central Valley spring-run ESU-XN Yuba)''
under ``Fishes'' in alphabetical order by common name to read as
follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------------------------------------- Citation(s) for listing Critical
Description of listed determinations(s) habitat ESA rules
Common name Scientific name entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
[[Page 79818]]
* * * * * * *
Salmon, Chinook (Central Valley spring- Oncorhynchus tshawytscha. Central Valley spring-run [Insert Federal Register NA 223.301
run ESU-XN Yuba). Chinook salmon only Citation], December 28,
when, and at such times 2022.
as, they are found in
the upper Yuba River
watershed, upstream of
Englebright Dam.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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. In Sec. 223.301, add paragraph (d) to read as follows:
Sec. 223.301 Special rules--marine and anadromous fishes.
* * * * *
(d) Upper Yuba River Central Valley spring-run Chinook salmon
experimental population (Oncorhynchus tshawytscha)--(1) Status of Upper
Yuba River Central Valley spring-run Chinook salmon under the
Endangered Species Act. The Upper Yuba River Central Valley spring-run
Chinook salmon population identified in paragraph (d)(2) of this
section is designated as a nonessential experimental population under
section 10(j) of the Endangered Species Act (ESA) and shall be treated
as a ``threatened species'' pursuant to 16 U.S.C. 1539(j)(2)(C).
(2) Upper Yuba River Central Valley spring-run Chinook salmon
nonessential experimental population. All Central Valley spring-run
Chinook salmon within the NEP area in the upper Yuba River watershed
upstream of Englebright Dam, as defined in this paragraph (d)(2), are
considered part of the Upper Yuba River Central Valley spring-run
Chinook salmon nonessential experimental population. The boundaries of
the NEP area include Englebright Dam and all tributaries draining into
Englebright Reservoir up to the ridgeline.
(3) Prohibitions. Except as expressly allowed in paragraph (d)(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 Upper Yuba River
Central Valley spring-run Chinook salmon nonessential experimental
population identified in paragraph (d)(2) of this section.
(4) Exceptions to the application of section 9 take prohibitions in
the NEP area. The following forms of take in the NEP area identified in
paragraph (d)(2) of this section are not prohibited by this section:
(i) Any taking of Central Valley spring-run Chinook salmon by
authorized governmental entity personnel acting in compliance with
Sec. 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 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; and
(iii) Any taking of Central Valley spring-run Chinook salmon
pursuant to a permit issued by the National Marine Fisheries Service
(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. 2022-27953 Filed 12-27-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on December 28, 2022.
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