Rule2023-18474
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(d)
Primary source
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Published
August 28, 2023
Effective
September 27, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
We, NMFS, 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 will contribute to viability and further conservation of these species. The issuance of limited protective regulations for the conservation of these species will provide assurances regarding the regulatory provisions of the ESA as they apply to SR winter-run and CV spring-run Chinook salmon to the people in the Upper Sacramento River and McCloud River watersheds. This final rule 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 88 Issue 165 (Monday, August 28, 2023)</title>
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[Federal Register Volume 88, Number 165 (Monday, August 28, 2023)]
[Rules and Regulations]
[Pages 58511-58521]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18474]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 230822-0202]
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(d)
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 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 will contribute to viability and
further conservation of these species. The issuance of limited
protective regulations for the conservation of these species will
provide assurances regarding the regulatory provisions of the ESA as
they apply to SR winter-run and CV spring-run Chinook salmon to the
people in the Upper Sacramento River and McCloud River watersheds. This
final rule also announces the availability of a final environmental
assessment (EA) that analyzed the environmental impacts of promulgating
the experimental population rule and associated take exceptions.
DATES: The final rule is effective September 27, 2023.
ADDRESSES: The final Environmental Assessment and other reference
materials can be obtained at NMFS' 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 Edmondson,
<a href="/cdn-cgi/l/email-protection#9be8effeedfeb5fefff6f4f5ffe8f4f5dbf5f4fafab5fcf4ed"><span class="__cf_email__" data-cfemail="3142455447541f54555c5e5f55425e5f715f5e50501f565e47">[email protected]</span></a> 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) 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 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). 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.
[[Page 58512]]
This rule designates 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 establishes take prohibitions for the NEPs and exceptions for
particular activities.
This is a final rule stemming from a proposed rule published on May
11, 2023 (88 FR 30690). 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.
Figure 1--The NEP Area above Shasta Dam for SR winter-run and CV
spring-run Chinook salmon
[GRAPHIC] [TIFF OMITTED] TR28AU23.376
[[Page 58513]]
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 ``will further the
conservation'' of that species. 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.
The experimental populations of SR winter-run and CV spring-run Chinook
salmon we are designating must generally be treated as threatened
species. Therefore, we issue tailored protective regulations under ESA
section 4(d) for the 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 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 402.14(i)(1)(iv)).
NMFS has previously 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 appreciably
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:
<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 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):
<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
non-experimental 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 trends of SR winter-run
and CV spring-run Chinook salmon are summarized by Healy (1991), U.S.
Fish
[[Page 58514]]
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 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 (Southwest Fisheries
Science Center (SWFSC) 2022). Updated information indicates an
increased extinction risk due to the larger influence of the hatchery
broodstock and low numbers of natural-origin returns in two consecutive
years (SWFSC 2022). NMFS determined 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 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 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 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 the 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
[[Page 58515]]
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 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 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 ongoing 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 (California Department of Water Resources
(DWR) 2011) will improve juvenile rearing conditions during
outmigration by creating and improving access to high quality
floodplain habitats.
[[Page 58516]]
Action items identified in NMFS 2022 5-year review 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. Implementation of these action items will
advance the conservation of the species.
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.
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. The NEP Area extends
upstream from Shasta Dam in the McCloud and Upper Sacramento Rivers as
described above. Under this rule, experimental populations are
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 are only
part of the experimental populations when they are present in the NEP
Area, and are not 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 re-enter the NEP Area.
The 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 likely 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 will 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
[[Page 58517]]
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 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 designates 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 have
exercised that authority to issue protective regulations under ESA
section 4(d) for the 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 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 ESA section
10(j) experimental population designation, we are adopting 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' 5-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.
Summary of Comments and Responses
The draft EA and proposed rule were made available for a 30-day
public comment period. NMFS received comments on the proposed rule and
draft EA, which are addressed in Appendix A of the final EA and as
changes to the final EA as appropriate. The purpose of the comment
period is to help us better understand the concerns of the public on
the experimental population designations, take and take exceptions, and
associated draft EA. During the comment period, NMFS received 6 comment
letters germane to the proposed rulemaking, from entities representing
various agencies, nongovernmental organizations, tribes, and
individuals. Five comment letters were supportive of the proposed rule.
One letter, from Pacific Gas and Electric Company (PG&E), although
supportive of designating SR winter-run and CV spring-run Chinook
salmon as nonessential experimental populations contained several
criticisms and objections. EA Appendix A contains the public comment
letters received and our responses. A summary of PG&E's comments and
our responses to those comments are presented here.
Comment 1. The proposed exemption from section 9 take prohibitions
requires additional detail in which PG&E requested specific language
detailing activities associated with its McCloud-
[[Page 58518]]
Pit Hydroelectric Project (Project, FERC Project No. 2106).
Response. The examples in the Federal Register notice represent a
broad, but non-comprehensive subset of the types of otherwise legal
activities that may occur in the NEP area that are exempted from
section 9 take prohibitions. The list is intended to be illustrative
rather than all-inclusive. Regardless of the types of activities listed
as examples in the 4(d) rule, if a legal activity results in incidental
take and the take is not due to negligence, then the activity is
exempted from take prohibitions, even if not included in the list of
examples.
Comment 2. PG&E stated that the level of consultation with
stakeholders was inadequate.
Response. NMFS disagrees. Over the past 12 years (starting in 2010)
NMFS' public outreach and engagement strategy for both reintroduction
and this 10(j) rule has been extensive, comprehensive and sustained.
This includes public meetings, landowner and stakeholder meetings,
briefings and updates with tribes, local, State, and Federal government
representatives and government groups, webinars, podcasts and
electronically posting web stories, fact sheets, videos and Frequently
Asked Questions (FAQ) documents on NMFS' website. Further, in response
to concerns raised by stakeholders as a result of the above outreach
efforts, NMFS worked with the California Board of Forestry to amend the
California Forest Practice Rules to better align with the 10(j) rule;
worked with the CDFW to address concerns over their freshwater fishing
regulations and the California Endangered Species Act; and entered into
a formal co-stewardship agreement with CDFW and the Winnemem Wintu
Tribe to jointly pursue reintroduction. This also includes partnering
and participation in several multi-agency and multi-stakeholder
technical committees.
Comment 3. PG&E requested ``unambiguous exclusion of hydropower''
to be consistent with NMFS' 2013 Middle Columbia River Steelhead rule.
Response. See response to Comment #1. As stated in PG&E's letter,
``the proposed rule would exclude all lawful activities from the take
prohibition . . . including the operation and maintenance of
hydroelectric facilities.'' PG&E also noted that its request would be
consistent with the Middle Columbia River Steelhead 10(j) and 4(d) rule
(see 78 FR 2893--2907 (January 15, 2013)). However, in the case of the
Middle Columbia River Steelhead rule, the inclusion of hydropower was
explicitly related to a requirement of the new hydropower license for
the Pelton Round Butte Project stipulating reintroduction. There is no
similar license requirement or final plan to reintroduce SR winter-run
Chinook salmon or CV spring-run Chinook salmon upstream of Shasta Dam.
Comment 4. Regarding the congressional history and intent, PG&E
claimed that subsequent to the 1982 amendments of the Endangered
Species Act (ESA), the Secretary is not authorized to reintroduce eggs,
propagules, or individuals outside of the current range of the species
without first making the determinations required under section 10(j).
Response. PG&E's interpretation of section 10(j) of the ESA is
inconsistent with the statute, congressional history and intent.
Section 10(j) does not limit or restrict any previously held authority
on the part of the Secretary to authorize or reintroduce species
outside their current range. On the contrary, section 10(j) expands the
Secretaries' authorities, in this case, 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 ESA,
establish a limited set of take exceptions for the experimental
populations.
Comment 5. Regarding the congressional history and intent, PG&E
claimed that the key mechanism in section 10(j) to afford landowner
cooperation is the provision providing that endangered experimental
populations can be treated as threatened species, which consequently
authorizes NMFS to relax incidental take prohibitions for endangered
experimental populations. Further, they asserted that this reflects the
congressional intent that species reintroductions should be
accomplished with the support of affected stakeholders.
Response. See response to Comment #2; and section 1.2.4.1. of the
EA. Further, Congress viewed ESA section 10(j) as an opportunity ``to
encourage the recovery of species through population re-establishment
with the cooperation of, not despite, state and local groups'' (Wolok
1996). Congress intended that regulations promulgated by the Services
to designate experimental populations ``should be viewed as an
agreement among the Federal agencies, the state fish and wildlife
agencies and any landowners involved'' (Wolok 1996 quoting H.R. Rep.
No. 567, 97th Cong., 2d Sess. 34 (1982)). We note that designation and
release of NEPs of Sacramento River (SR) winter-run and Central Valley
(CV) spring-run Chinook salmon in the McCloud and Upper Sacramento
Rivers above Shasta Dam under section 10(j) of the ESA was formally
requested by the U.S. Forest Service (primary landowner in the NEP
area) and generally supported by other landowners.
Findings
Based on the best available scientific information, we have
determined that the designations and 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 final 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
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.
[[Page 58519]]
We further determine, based on the best scientific and commercial
data available, that the 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
designate the released populations as nonessential experimental
populations.
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 rule that meet these criteria.
Classification
Executive Order 12866
This final 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 during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a final regulatory
flexibility analysis was not required and none was 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 is
defined in Executive Order 13132.
Paperwork Reduction Act of 1995
OMB regulations at 5 CFR part 1320, which implement provisions of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that
Federal agencies obtain approval from OMB before collecting information
from the public. A Federal agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number. This 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 and rule available for comments,
received comments, and responded to those comments. 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 above).
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 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.
References Cited
A complete list of all references cited in this final 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: August 22, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 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) by adding entries
for ``Salmon, Chinook (Central Valley spring-run ESU-XN Shasta)'' and
``Salmon, Chinook (Sacramento winter-run ESU-XN Shasta)'' under
``Fishes'' in alphabetical order by common name to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
[[Page 58520]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
---------------------------------------------------------------------------------------------- Citation(s) for listing Critical ESA rules
Common name Scientific name Description of listed entity determinations(s) habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * * * *
FISHES
* * * * * * * * *
Salmon, Chinook (Central Valley Oncorhynchus tshawytscha Central Valley spring-run [INSERT FEDERAL REGISTER NA ..............
spring-run ESU-XN Shasta). Chinook salmon only when, CITATION], 8/28/2023.
and at such times as, they
are found in the NEP Area
(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 tshawytscha Sacramento winter-run [INSERT FEDERAL REGISTER NA ..............
run ESU-XN Shasta). Chinook salmon only when, CITATION], 8/28/2023.
and at such times as, they
are found in the NEP Area
(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).
* * * * *
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 (the NEP Area), as defined in
this paragraph (e)(2), 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
[[Page 58521]]
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 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 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. 2023-18474 Filed 8-25-23; 8:45 am]
BILLING CODE 3510-22-P
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