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issue-1994-01-06Federal Register proposed rules — 1994-01-06Proposed Regulation
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FR Doc. 94-92 Endangered and Threatened Wildlife and Plants; Notice of 1-Year Finding on a Petition to List the Longfin Smelt
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 869-871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-92]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF THE INTERIOR
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Notice of 1-Year
Finding on a Petition to List the Longfin Smelt
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of petition finding.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces a 1-
year finding on a petition to list the longfin smelt (Spirinchus
thaleichthys) under the Endangered Species Act of 1973, as amended
(Act). The Service determines that the petitioned action is not
warranted at this time. The longfin smelt occurs from the San Francisco
Bay-Sacramento-San Joaquin River Estuary in California to Prince
William Sound in Alaska. Although the southernmost populations are
declining, little or no population trend data are available for
estuaries in Oregon and Washington. The species may be surviving and
reproducing in Puget Sound, Skagit Bay, Grays Harbor, Willapa Bay, the
Columbia River, Yaquina Bay, and Coos Bay. Large numbers are found in
the Gulf of Alaska 5 to 6 miles off shore. The listing of a Sacramento-
San Joaquin River estuary vertebrate population segment is also not
warranted at this time because that population does not seem to be
biologically significant to the species as a whole, and may not be
sufficiently reproductively isolated.
DATES: Comments from all interested parties will be accepted until
further notice.
ADDRESSES: Comments and materials concerning this document should be
submitted to the Acting Field Supervisor, Sacramento Field Office, U.S.
Fish and Wildlife Service, 2800 Cottage Way, E-1803, Sacramento,
California 95825-1846.
FOR FURTHER INFORMATION CONTACT: H. Dale Hall, Assistant Regional
Director, Ecological Services, U.S. Fish and Wildlife Service, 911 NE.
11th Avenue, Portland, Oregon 97232-4181 (503/231-6150).
SUPPLEMENTARY INFORMATION: On November 5, 1992, the Service received a
petition from Mr. Gregory A. Thomas of the Natural Heritage Institute
to add the longfin smelt to the List of Endangered and Threatened
Wildlife and to designate critical habitat in the Sacramento and San
Joaquin Rivers and estuary. In his letter, Mr. Thomas identified the
following eight organizations as co-petitioners: American Fisheries
Society, Bay Institute of San Francisco, Natural Heritage Institute,
Planning and Conservation League, Save San Francisco Bay Association,
Friends of the River, San Francisco Baykeeper, and the Sierra Club. On
June 24, 1993, the Service issued a 90-day finding, a notice of which
was published in the Federal Register on July 6, 1993 (58 FR 36184),
that the petition presented substantial information indicating that the
requested action may be warranted. The Service initiated a status
review and analyzed available data on this species (Meng 1993).
Additional sources of information describing the human factors and
projects that may affect this species include expert testimonies
presented to the California State Water Resources Control Board's 1987
Water Quality/Water Rights Proceeding on the San Francisco Bay and
Sacramento-San Joaquin River Delta and 1992 Water Rights Phase of the
Bay-Delta Estuary Proceedings.
Section 4(b)(3)(B) of the Act requires that the Service issue a
finding within 1 year of the receipt of the petition on whether the
petitioned action is (a) not warranted, (b) warranted, or (c) warranted
but precluded from immediate proposal by other pending proposals of
higher priority.
In casual conversations, the petitioner indicated that he intended
the petition to be a request to list the Sacramento-San Joaquin River
estuary population. However, the Service did not receive this request
in writing and, in any case, was required to review the status of the
species on a rangewide basis prior to considering the appropriateness
of listing individual population segments. The Service determines that
listing of the Sacramento-San Joaquin estuary population segment of the
longfin smelt is not warranted.
Longfin smelt is an euryhaline species with a 2-year life cycle
(Moyle 1976, Moyle and Yoshiyama 1992). Spawning occurs in fresh water
over sandy-gravel substrates, rocks, or aquatic plants. Spawning may
take place as early as November and extend into June, although the peak
spawning period is from February to April (Wang 1986). After hatching,
larvae move up into surface waters and are transported downstream into
brackish-water nursery areas. Sacramento-San Joaquin River outflow into
Suisun and San Pablo Bays has been positively correlated with longfin
smelt recruitment (Stevens and Miller 1983) because higher outflow
increases larval dispersal and the area available for rearing (Wang
1986). The main food of longfin smelt is opossum shrimp, although
copepods and other crustaceans also are eaten (Moyle 1976). Longfin
smelt are preyed upon by fishes, birds, and marine mammals (Monaco et
al. 1991). Longfin smelt play a role in maintaining the structure and
function of estuarine ecosystems because they are important as food for
birds and piscivorous fishes.
As presently described, longfin smelt range from the San Joaquin-
Sacramento River estuary and South San Francisco Bay, California, to
Prince William Sound, Alaska (Miller and Lea 1972). The present-day
distribution of longfin smelt is probably due to lower sea levels in
the Pleistocene, which would have enlarged estuaries up and down the
Pacific coast and shortened the distances between estuaries, as well as
provide more habitat (Peter Moyle, University of California, Davis,
pers. comm., 1993). Unverified reports of off-shore collection of
longfin smelt exist, approximately 5 to 6 miles off shore in Alaska
(Bruce Wing, National Marine Fisheries Service, Auke Bay, Alaska, pers.
comm., 1993) and 3 to 4 miles off shore in northern California (Larry
Quirollo, California Department of Fish and Game, pers. comm., 1993).
Based on inferred abundance, longfin smelt may be common in Willapa
Bay, Skagit Bay, and Puget Sound in Washington and Coos Bay and Yaquina
Bay in Oregon (Monaco et al. 1990). Largely using sampling data, Monaco
et al. (1990) also reported that longfin smelt were common to highly
abundant in the Columbia River and Grays Harbor, Washington. Few data
exist on the recent status of the Oregon and Washington longfin smelt;
however, indications are that this species may be reproducing and
surviving in the Oregon and Washington estuaries (Bob Emmett, National
Marine Fisheries Service, Hammond, Oregon, pers. comm., 1993). A land-
locked population exists in Harrison Lake in British Columbia. British
Columbia longfin smelt have also been recorded at the Fraser River
estuary and near Prince Rupert and Vancouver (Hart 1973). Alaska
longfin smelt are found at the Dixon Entrance, Yakutat Bay, Prince
William Sound, and Cook Inlet (Wing, pers. comm., 1993). In California,
the longfin smelt occurs (or did occur) in the Klamath River mouth,
Humboldt Bay, Eel River mouth, Van Duzen River mouth, and the San
Francisco Bay-Sacramento-San Joaquin Estuary (Moyle 1976; Moyle and
Yoshiyama 1992; Ron Fritzsche, Humboldt State University, pers. comm.,
1993). The Estuary supports the largest and most southerly longfin
smelt population in California (Lee et al. 1980).
The strongest information on the decline of longfin smelt comes
from the Sacramento-San Joaquin River Estuary of California. Longfin
smelt were once one of the most abundant fish caught by trawl surveys
in the Sacramento-San Joaquin (Herbold et al. 1992) and Humboldt Bay
estuaries (Barnhart, pers. comm., 1993). Longfin smelt numbers in the
Estuary fluctuated widely in the past, but since 1983 abundance has
dropped dramatically and remained at record lows. In Humboldt Bay,
longfin smelt were the fourth most abundant fish captured in trawls in
the late 1960s and early 1970s (Roger Barnhart, National Biological
Survey, pers. comm., 1993). However, since 1988, no longfin smelt have
been captured in Humboldt Bay using similar sampling methods (Tim
Mulligan, Humboldt State University, pers. comm., 1993). Historical
records of longfin smelt from the mouth of the Van Duzen River exist;
however, in recent years, no evidence of the fish exists for this
location (Fritzsche, pers. comm., 1993). The Eel River, which is about
3.2 kilometers (2 miles) from Humboldt Bay, is relatively small and
probably contains little habitat appropriate for longfin smelt. Longfin
smelt likely occurred in the Eel River only when high river outflows
introduced fish from Humboldt Bay. Longfin smelt numbers probably
declined in the Eel River at the same time declines occurred in
Humboldt Bay. Recent surveys have not found the longfin in the Eel
estuary (Moyle, pers. comm., 1993). In Oregon and Washington, no
population trend data exist for any of the estuaries, although the
indications are that the species is surviving and reproducing in
several estuaries (Emmett, pers. comm., 1993). In Alaska, large numbers
of longfin smelt are found in the Gulf of Alaska (Bruce Wing, National
Marine Fisheries Service, pers. comm., 1993).
In the Sacramento-San Joaquin River Estuary the decline in longfin
smelt abundance is associated with fresh water diversions from the
Delta to support California's agricultural industry in the Central
Valley and the vast urban areas of southern California. Strong
relationships between outflow and longfin smelt abundance indicate that
outflows less than 3,400 cubic feet per second (cfs) result in
reproductive failure for longfin smelt (Moyle and Yoshiyama 1992).
Because of its 2-year life span, such flows for more than 2 or 3
consecutive years could push this species toward extinction. From 1986
to 1991, outflows hovered close to that number, partly due to high
proportions of inflow diverted. Movement of the entrapment zone (mixing
zone at the freshwater-saltwater interface) up-river due to low
outflows has constricted the range of the longfin smelt and made it
increasingly vulnerable to diversion into man-made structures. Low
outflows have failed to disperse larvae downstream to the productive
nursery areas in Suisun Bay away from the pumps. The water exports from
the Delta by far exceed those from any other estuary on the west coast
of North America.
Sediment production as a result of human activities and
developments in the Humboldt, Eel, Van Duzen, and Klamath watersheds
may be a cause of the decline of longfin smelt in those estuaries. Soil
washed into the streams can deposit in estuaries downstream.
Sedimentation in the spawning habitat could have reduced the spawning
success of this species due to physical scouring or suffocation of eggs
(Barnhart, pers. comm., 1993). Although human activities upstream of
estuaries in Oregon, Washington, Canada, and Alaska would likely result
in similar impacts, the Service does not have population trend data for
these portions of the species' range.
Longfin smelt disappeared from the Humboldt Bay estuary in the
1980s (Barnhart, pers. comm., 1993), perhaps as a result of a dramatic
loss of intertidal marsh habitat, which may have reduced productivity
levels to a point at which they could no longer support the species. In
addition, the loss of freshwater flows from the Mad River, as a result
of water diversions and land reclamation, may have contributed to the
loss of this species from the Humboldt Bay.
Longfin smelt may be particularly sensitive to adverse habitat
alterations or to stochastic events because their 2-year life cycle
increases the likelihood of extinction after consecutive periods of
reproductive failure due to drought or other factors. Relatively brief
periods of reproductive failure could lead to extirpations.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this species in this determination. This
species does not appear to be threatened throughout all or a
significant portion of its range or likely to become so in the
foreseeable future. However, given the declines in the southern portion
of the species' range and the general lack of population trend data for
the remainder of its range, the Service will include the longfin smelt
in category 2 of the next notice of review for animals.
Though the petition was not limited to a portion of the species'
range, the petitioner focused on the resident longfin smelt in the
Sacramento-San Joaquin River estuary population. In telephone
conversations, the petitioner indicated that he was most interested in
a population listing. Longfin smelt numbers in this estuary have
declined by 90 percent since 1984 and by 50 percent annually since
1987.
The Service has listed vertebrate population segments where the
entity being listed represented the entire coterminous United States
population (e.g., marbled murrelet, grizzly bear). Some reproductively
isolated (or nearly so) vertebrate population segments that are clearly
important to the conservation of an entire species have also been
listed under the Act (e.g., Mojave population of the desert tortoise,
coastal population of the western snowy plover).
Although the longfin smelt reportedly is unable to swim between
estuaries (Moyle, pers. comm., 1993), unverified reports of offshore
collections exist (Quirollo, pers. comm., 1993; Wing, pers. comm.,
1993). Furthermore, the current distribution is thought to be the
result of movements between estuaries that took place during the
Pleistocene when lower sea levels reportedly would have enlarged
estuaries along the Pacific coast and shortened the inter-estuarian
distances (Moyle, pers. comm., 1993). Though geographically removed
from the closest known extirpated or declining population (300 miles
from the Eel River in California), this isolation does not necessarily
indicate that the Sacramento-San Joaquin River estuary population is
significant to a species that has a range of more than 1,900 miles. In
addition, electrophoretic analysis revealed that the accumulated number
of codon substitutions per locus (i.e., Nei's genetic distance) since
the time of separation of the Sacramento-San Joaquin River estuary
population and the longfin population in Lake Washington, Washington,
connected to Puget Sound via a system of locks, has been small (0.005
according to Stanley et al., submitted to Copeia). Thus, these
populations, separated by approximately 1,000 miles, have genetically
diverged only slightly since their separation.
The Sacramento-San Joaquin River estuary is clearly an important
and significant wetland ecosystem. The longfin smelt formerly was the
fourth most abundant fish in the Sacramento-San Joaquin River estuary;
however, the role of this declining species in the estuary today is
unknown.
Based on this evaluation the Service has determined that the
listing of the longfin smelt under the Act is not warranted at this
time. The listing of the Sacramento-San Joaquin River estuary
population of the longfin smelt is also not warranted at this time.
References
A complete list of references used in the preparation of this
finding is available from the Associate Manager--Endangered Species,
U.S. Fish and Wildlife Service, Portland, Oregon (see ADDRESSES
section).
Authority
The authority for this action is the Endangered Species Act (16
U.S.C. 1531 et seq.).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Dated: December 22, 1993.
Richard N. Smith,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 94-92 Filed 1-5-94; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 94-91 Endangered and Threatened Wildlife and Plants; Proposed Determination of Threatened Status for the Sacramento Splittail
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 862-869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-91]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AC26
Endangered and Threatened Wildlife and Plants; Proposed
Determination of Threatened Status for the Sacramento Splittail
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes
threatened status for the Sacramento splittail (Pogonichthys
macrolepidotus) pursuant to the Endangered Species Act of 1973, as
amended (Act). Sacramento splittail occur in Suisun Bay and the San
Francisco Bay-Sacramento-San Joaquin River Estuary in California. The
Sacramento splittail has declined by 62 percent over the last 15 years.
This species is primarily threatened by large freshwater exports from
Sacramento and San Joaquin River diversions, prolonged drought, loss of
shallow-water habitat, introduced aquatic species, and agricultural and
industrial chemicals. This proposal, if made final, would implement the
protection and recovery provisions afforded by the Act for Sacramento
splittail. The Service seeks all available data and comments from the
public regarding this proposal.
DATES: Comments from all interested parties must be received by March
7, 1994. Public hearing requests must be received by February 22, 1994.
ADDRESSES: Comments and materials concerning this proposal should be
submitted to the Acting Field Supervisor, Sacramento Field Office, U.S.
Fish and Wildlife Service, 2800 Cottage Way, E-1803, Sacramento,
California 95825-1846. Comments and materials received will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Dale Pierce, Acting Field Supervisor,
Sacramento Field Office (see ADDRESSES section) at 916/978-4866.
SUPPLEMENTARY INFORMATION:
Background
As used in this rule, the term ``Delta'' refers to all tidal waters
contained within the legal definition of the San Francisco Bay-
Sacramento-San Joaquin River Delta, as delineated by section 12220 of
the State of California's Water Code of 1969. Generally, the Delta is
contained within a triangular area that extends south from the city of
Sacramento to the confluence of the Stanislaus and San Joaquin Rivers
on the southeast corner and Chipps Island in Suisun Bay at the
southwest corner. The term ``Estuary,'' as used in this rule, refers to
tidal waters contained in the Sacramento River and San Joaquin Rivers,
the Delta, and the San Pablo and San Francisco Bays.
Sacramento splittail were first described in 1854 by W.O. Ayres as
Leuciscus macrolepidotus and by S.F. Baird and C. Girard as
Pogonichthys inaeqilobus. Although Ayres' species description is
accepted, the species was assigned to the genus Pogonichthys in
recognition of the distinctive characteristics exhibited by the two
splittail species P. ciscoides and P. macrolepidotus (Hopkirk 1973). P.
ciscoides, endemic to Clear Lake, Lake County, California, has been
extinct since the early 1970s. The Sacramento splittail (hereafter
splittail) represents the only extant species in its genus.
The splittail is a large cyprinid that can exceed 40 centimeters
(16 inches) in length (Moyle 1976). Adults are characterized by an
elongated body, distinct nuchal hump, and small, blunt head, usually
with barbels at the corners of the slightly subterminal mouth. The
enlarged dorsal lobe of the caudal fin distinguishes the splittail from
other minnows in the Central Valley of California. Splittail are dull,
silvery-gold on the sides and olive-gray dorsally. During spawning
season, the pectoral, pelvic, and caudal fins are tinged with an
orange-red color. Males develop small white nuptial tubercles on the
head.
Splittail are endemic to California's Central Valley, where they
were once widely distributed (Moyle 1976). Historically, splittail were
found as far north as Redding on the Sacramento River, as far south as
the present-day site of Friant Dam on the San Joaquin River, and as far
upstream as the current Oroville Dam site on the Feather River and
Folsom Dam site on the American River (Rutter 1908). Recreational
anglers in Sacramento reported catches of 50 or more splittail per day
prior to damming of these rivers (Caywood 1974). The species was used
as part of the Central Valley Native American diet (Caywood 1974).
In recent times, dams and diversions have increasingly prevented
upstream access to large rivers, and the species is now restricted to a
small portion of its former range (Moyle and Yoshiyama 1992). Splittail
enter the lower reaches of the Feather (Jones and Stokes 1993) and
American Rivers (Charles Hanson, State Water Contractors Association,
in litt., 1993) on occasion; however, the species now largely is
confined to the Delta, Suisun Bay, Suisun Marsh, and Napa Marsh.
Splittail are relatively long-lived, frequently reaching 5 to 7
years of age. Females are highly fecund and produce over 100,000 eggs
each year. Populations fluctuate annually depending on spawning
success, which is highly correlated with freshwater outflow and the
availability of shallow-water habitat with submerged vegetation
(Daniels and Moyle 1983). Fish usually reach sexual maturity by the end
of their second year. Some variability in the period of reproduction
exists because older individuals reproduce first, followed by younger
individuals (Caywood 1974). The onset of spawning is associated with
rising temperature, and peak spawning occurs from the months of March
through May, although records of spawning exist for late January to
early July (Wang 1986). Spawning occurs over flooded vegetation in
tidal freshwater and euryhaline habitats of estuarine marshes and
sloughs and slow-moving reaches of large rivers. Larvae remain in
shallow, weedy areas close to spawning sites and move into deeper water
as they mature (Wang 1986).
Splittail are benthic foragers that feed on opossum shrimp
(Neomysis mercedis), although detrital material makes up a large
percentage of their stomach content (Daniels and Moyle 1983).
Earthworms, clams, insect larvae, and other invertebrates also are
found in the diet. Predators include striped bass and other piscivores.
Although primarily a freshwater species, the splittail can tolerate
salinities as high as 10 to 18 parts per thousand (ppt) (Moyle 1976,
Moyle and Yoshiyama 1992). In recent years, this fish has been found
most often in slow-moving sections of rivers and sloughs and dead-end
sloughs (Moyle et al. 1982, Daniels and Moyle 1983). Reports from the
1950s, however, mention Sacramento River spawning migrations and
catches of splittail during fast tides in Suisun Bay (Caywood 1974).
Because they require flooded vegetation for spawning and rearing,
splittail are frequently found in areas subject to flooding, such as
the major flood basins distributed throughout the Sacramento and San
Joaquin Valleys. California Department of Fish and Game (CDFG) survey
data from the last 15 years indicate that the highest catches occurred
in shallow areas of Suisun and Grizzly Bays.
The decline in splittail abundance has taken place during increased
human-induced changes to seasonal estuary hydrology and freshwater
exports and the accompanying changes in the temporal, spatial, and
relative ratios of water diversions. These deleterious hydrological
effects, coupled with severe drought years, introduced aquatic species,
and loss of shallow-water habitat to reclamation, seem to have reduced
the species' capacity to recover from natural seasonal fluctuations in
hydrology for which it was adapted.
Analyses of survey data collected since 1967 (Meng 1993) by
Service, CDFG, and University of California, Davis, biologists from
several different studies indicate the following:
(1) On average, splittail have declined in abundance by 62 percent
since 1984. Percent decline varied among studies, dependent upon
location of sampling effort. The greatest declines (over 80 percent)
were found from studies that sampled the shallow Suisun Bay area, the
center of the species' range. A study that began in 1980 at the lower
Estuary, the outermost edge of splittail range, found the lowest
percent decline (34 percent). The number of splittail young taken at
State and Federal pumping facilities (per acre-foot of water pumped)
has declined 64 percent since 1984;
(2) Successful reproduction in splittail is highly correlated with
wet years, but within these wet years, young-of-the-year taken per unit
effort has declined steadily from a high of 12.3 in 1978 to 0.3 in
1993;
(3) A strong relationship exists between young-of-the-year
abundance and outflow (i.e., river outflow into San Francisco Bay after
water exports are removed). As outflow increases, annual abundance of
splittail young increases. Changes in outflow explain 73 percent of the
changes seen in splittail young abundance;
(4) When young-of-the-year abundance is predicted using unimpaired
outflow (i.e., river outflow without water exports removed), abundance
is higher than expected in dry years, indicating that water exports
affect young-of-the-year abundance in dry years. In dry years when
river outflow is reduced, high proportions of outflow are diverted,
resulting in lower than expected splittail young numbers;
(5) Lower than expected numbers of splittail young persisted
throughout the recent 6-year drought in California. This prolonged
period of poor reproductive success may affect the stock's ability to
recover;
(6) Splittail are most abundant in shallow areas of Suisun and
Grizzly Bays and are vulnerable to increased salinities. Salinities
increase when, as a result of water exports and drought conditions, the
entrapment zone (mixing zone at the freshwater-saltwater interface) is
moved upstream. Concentration of splittail in shallow areas suggests
that they are particularly vulnerable to reclamation activities, such
as dredging and the diking and filling of wetlands; and
(7) Splittail distribution has shifted upstream into the lower
Sacramento River and South Delta since 1983. Ninety-one percent of the
splittail captured in San Pablo and lower Suisun Bays from 1967 to 1993
were taken before 1983, and 77 percent of the splittail captured in the
lower Sacramento River and South Delta were taken after 1983. Because
State and Federal water project pumps are located near the lower
Sacramento River and South Delta, this upstream shift in splittail
distribution increases splittail mortality at the pumps. In 1993, the
number of splittail young taken at the Federal pumping facility was
four times higher than in previous years.
A variety of factors affects the estuarine ecosystems and has led
to the decline of Sacramento splittail. Principal among these factors
specific to the Estuary are the altered hydraulics and reduced outflow
of the Delta caused by export of freshwater from the Sacramento and San
Joaquin Rivers through State and Federal water diversion projects.
Additional threats to this species include:
(1) Loss at pumping plants and in-Delta diversion sites,
(2) Loss of spawning and nursery habitat as a consequence of
draining and diking for agriculture,
(3) Reduction in the availability of highly productive brackish-
water habitat,
(4) Urban and agricultural pollution,
(5) Introduction of exotic species, and
(6) Exacerbation of the effects of these factors as a result of 6
years of drought.
The causes of splittail decline in the Estuary are multiple and
synergistically threaten this species. The individual threats include:
(1) Reduced river outflows, primarily in the Sacramento and San
Joaquin Rivers and their tributaries;
(2) Loss of shallow-water habitat;
(3) Mortality caused by diversion into State and Federal water
projects and privately-operated agricultural in-Delta water diversions;
(4) Human and natural perturbations of the food web;
(5) Presence of toxic substances in the aquatic habitat (e.g.,
agricultural and industrial chemicals and heavy metals); and
(6) Introduction of non-native species.
Previous Service Action
The Service included the Sacramento splittail as a category 2
candidate species for possible future listing as endangered or
threatened in the January 6, 1989 (54 FR 554), Animal Notice of Review.
Category 2 includes species for which information contained in Service
files indicates that proposing to list is possibly appropriate but
additional data is needed to support a listing proposal.
On November 5, 1992, the Service received a petition from Mr.
Gregory A. Thomas of the Natural Heritage Institute to add the
splittail to the List of Endangered and Threatened Wildlife and to
designate critical habitat for this species in the Sacramento and San
Joaquin Rivers and those estuaries. In his letter, Mr. Thomas
identified the following eight organizations as co-petitioners:
American Fisheries Society, Bay Institute of San Francisco, Natural
Heritage Institute, Planning and Conservation League, Save San
Francisco Bay Association, Friends of the River, San Francisco
Baykeeper, and the Sierra Club. On June 24, 1993, the Service issued a
90-day finding, notice of which was published in the Federal Register
on July 6, 1993 (58 FR 36184), that the petition presented substantial
information indicating that the requested action may be warranted. The
Service initiated a status review and analyzed available data on this
species (Meng 1993). Additional sources of information describing the
human factors and projects that may affect this species include expert
testimonies presented to the California State Water Resources Control
Board's 1987 Water Quality/Water Rights Proceeding on the San Francisco
Bay and Sacramento-San Joaquin River Delta and 1992 Water Rights Phase
of the Bay-Delta Estuary Proceedings. This proposal constitutes the
final finding on the petition to list the Sacramento splittail.
Summary of Factors Affecting the Species
Section 4 of the Endangered Species Act (16 U.S.C. 1531 et seq.)
and regulations (50 CFR part 424) promulgated to implement the listing
provisions of the Act set forth the procedures for adding species to
the Federal Lists. A species may be determined to be endangered or
threatened because of one or more of the five factors described in
section 4(a)(1). These factors and their application to the Sacramento
splittail (Pogonichthys macrolepidotus) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
The Sacramento splittail was once widely distributed in the Central
Valley of California from Redding to the modern-day site of Friant Dam
near the City of Fresno. It is now restricted to western, northern, and
southern portions of the Delta due to dams, diversions, dredging, and
the diking and filling of historic flood basins. Within the species'
constricted range, splittail have declined by 62 percent since 1984.
However, the overall percentage decline over its historical range is
much greater. Populations have fluctuated somewhat in the past, with
most recruitment taking place in wet years. In wet years since 1976,
however, splittail recruitment has declined consistently with catches
per unit effort of 12.3, 8.1, 2.0, 1.3, and 0.3 for 1978, 1982, 1983,
1986, and 1993, respectively. Splittail declines are highest (82
percent) in the shallow-water Suisun Bay area, which is the center of
its distribution. This may reflect the loss of productive brackish-
water habitat in Suisun and Grizzly Bays due to increased salinities
caused by low outflows.
Currently, Delta water diversions and exports total to about 9
million acre-feet per year. Federal and State projects presently export
about 6 million acre-feet per year when sufficient water is available,
and in-Delta agricultural uses result in diversion of about 3 million
additional acre-feet per year. Plans currently being prepared could
potentially induce increased exports and diversions in the future. The
Service knows of 22 major Central Valley Project, State Water Project,
or private organization proposals that would result in increased water
exports from the Delta, reduced water inflow to the Delta, changes in
the timing and volume of Delta inflow, or increases in heavy metal
contamination of the Delta. These proposed projects or actions include
but are not limited to Central Valley Project Operations Criteria and
Plan (including Friant Contract Renewals), Los Banos Grandes Reservoir,
Los Vaqueros Reservoir, South Delta Water Management Program, South
Delta Water Barriers Project, North Delta Water Management Project,
West Delta Water Management Project, Coastal Aqueduct proposal, Delta
Wetlands Corporation Water Storage Project, Folsom Dam Reoperation,
Oroville Dam Reoperation, Auburn Dam, Central Valley Project contract
renewals, the Central Valley Project and State Water Project wheeling
purchase agreement, reactivation of the San Luis Drain, Stanislaus-
Calaveras River Basin Water Use Program, Suisun Marsh Project Phase
Three and Four, Kern Water Bank, Arvin Edison water storage and
exchange proposal, Federal Water Project change in diversion point, and
State Water Project Pump additions. These projects would modify or
destroy the habitat of this species.
Because the Federal pumping plant has been operated at capacity for
many years except for a few drought years, increased exports at this
plant appear unlikely. However, the State Water Project pumping plant
and the capacity of the State Aqueduct have considerable unused
capacity. The California Department of Water Resources (1992) reported
the past and projected State Water Project deliveries from Delta
sources during the years of 1962 to 2035. In the 1980s, deliveries
ranged from 1.5 million acre-feet to 2.8 million acre-feet. By 2010,
deliveries of up to 4.2 million acre-feet are planned.
Since 1983, the proportion of water exported from the Delta during
October through March has been higher than in earlier years (Moyle et
al. 1992). The timing of these proportionally higher exports have
coincided with the spawning season of the splittail. Federal and State
water diversion projects in the southern Delta export, by absolute
volume, mostly Sacramento River water with some San Joaquin River
water. Moreover, during periods of high export pumping and low to
moderate river outflows, reaches of the San Joaquin River reverse
direction and flow upstream to the pumping plants located in the
southern Delta. The State-operated pumping plant presently exports
water at rates up to 6,400 cubic feet per second (cfs). The State is
considering proposals to export an additional 3,900 cfs. The Federal
pumping plant can export water at rates up to 4,600 cfs. In addition,
local private diverters export up to 5,000 cfs from about 1,800
diversions scattered throughout the Delta.
When total diversion rates are high relative to Delta outflow, and
the lower San Joaquin River and other channels have a net upstream
(i.e., reverse or negative) flow, out-migrating larval and juvenile
fish of many species become disoriented. Large mortalities occur as a
result of loss to pumps and predation by striped bass at the various
water facilities and other diversion sites. Because data from State and
Federal pumping facilities indicate that splittail migrate upstream to
spawn, positive outflows are also important to transport splittail
young downstream (Meng 1993).
In recent years, the number of days of reversed San Joaquin River
flow have increased (Moyle et al. 1992), particularly during the
February-June spawning months for splittail. All size classes of
splittail young suffer near total loss when they are entrained by the
pumping plants and diversions in the south Delta. Few young are
effectively salvaged at the Federal and State pumping plant screens.
This species' embryonic, larval, and postlarval mortality rates also
are higher when reduced outflows cause increases in salinity and
relocation of the entrapment zone (Moyle and Yoshiyama 1992).
Splittail are adapted for life in the entrapment zone. Estuaries
are ecosystems where the entrapment zone and salinity levels are
determined by the interaction of river outflow and tidal action.
Splittail are most abundant in the shallow waters of Suisun Bay, which
is historically associated with the entrapment zone. The young of this
species require high zooplankton densities produced by the entrapment
zone environment. The best survival and growth of splittail occurs when
the entrapment zone occupies a large geographic area with extensive
shoal regions within the euphotic zone (depths less than 4 meters).
Fall mid-water trawl survey data collected by CDFG indicate that 76
percent of the splittail captured from 1967 to 1992 in the Delta were
taken in the shallow areas of Suisun and Grizzly Bays (Meng 1993).
During periods of drought and increased water diversions, the
entrapment zone and associated fish populations are shifted farther
upstream in the Estuary. During years prior to 1984, the entrapment
zone was located in Suisun Bay from October through March (except in
months with exceptionally high outflows or during years of extreme
drought). From April through September, the entrapment zone usually was
found upstream in the river channels. Since 1984, with the exception of
the record 1986 flood outflows, the entrapment zone has been located
primarily in the river channels during the entire year because of
drought and increased water exports and diversions. When located
upstream, the entrapment zone is confined to deep river channels where
the total surface area is smaller, fewer shoal areas of suitable
spawning substrate exist, water currents are swifter and more
turbulent, and zooplankton productivity is low. In all respects, the
upstream river channels are much less favorable for spawning and
rearing of splittail. Splittail declines since 1984 have been
concurrent with an increasing amount and proportion of freshwater
diversions that confine the entrapment zone to the narrow, deep, and
less productive channels in the lower rivers.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
This factor is not known to be applicable. Some scientific
collecting is conducted for splittail, but these activities do not
adversely affect this species. Little or no recreational harvest of
splittail is likely occurring because the population has dramatically
declined, and it is not a desirable game species. No recent records of
splittail harvest exist, probably because little or no harvest occurs,
and the identification of this species is often confused with other
nongame species. No other recreational or educational uses of this
species exist that may affect its abundance.
C. Disease or Predation
This factor is not known to be applicable. However, if the non-
native striped bass populations increase, all size classes of splittail
could be under greater threat of predation. An effort by CDFG is under
way to compensate for striped bass population mortalities caused by
water export projects. The 1991 striped bass stock was low relative to
the population in the 1960s. Previously, the striped bass compensation
program annually released 1 to 2 million juvenile, hatchery-reared
striped bass in the Estuary in an effort to rebuild the population.
However, for the last 2 years, the Director of CDFG has foregone
release of striped bass because of the potential harm they would cause
to the federally-threatened Sacramento River winter-run chinook salmon
and delta smelt.
D. The Inadequacy of Existing Regulatory Mechanisms
Regulatory mechanisms currently in effect do not provide adequate
protection for the splittail or its habitat. This species is not listed
by the State of California.
Suisun Bay is the best known nursery habitat for reproduction and
larval survival of splittail, but the habitat has been deleteriously
altered by higher salinities in the spring. These higher salinities are
caused by a large number of freshwater diversions that allow seawater
to intrude farther upstream. At present, there are relatively few
periods when freshwater outflow volumes through the Delta and Suisun
Bay of any significance are mandated for wildlife or fisheries. State
and Federal agencies had planned to increase 1991 and 1992 water
supplies for out-of-stream uses at the expense of environmental
protection of estuarine fish and wildlife resources in the fifth and
potentially sixth years of drought (Morat 1991). Because of
significantly higher than normal precipitation and subsequent higher
instream flows after March 1991, a State agency request for relaxation
of Delta water quality standards was withdrawn. Should a California
drought return, water quality relaxation action likely will be
requested again to favor out-of-stream water use over the need to
protect aquatic habitats for fish and wildlife.
Present regulatory processes do not ensure that water inflows to
Suisun Bay and the western Estuary will be adequate to maintain the
entrapment zone near or in Suisun Bay to benefit splittail. The
California State Water Resources Control Board (Board) has the
authority to condition or require changes in the amount of water inflow
and the amount of water exported or diverted from the Delta. In
testimony given before the Board's Water Quality/Water Rights Hearings
in 1987, a Service biologist expressed concern for several Delta
species including splittail (Lorentzen 1987). The Board did not take
regulatory or legal action to protect this fish or its habitat during
the four following years. On May 1, 1991, the Board adopted the Water
Quality Control Plan for Salinity for the San Francisco Bay-Sacramento-
San Joaquin Delta Estuary (1991 Bay/Delta Plan). On September 3, 1991,
under provisions of the Clean Water Act, the Environmental Protection
Agency (EPA) disapproved certain water quality standards for the
Board's failure to adopt criteria to protect estuarine habitat. In
1993, EPA began the process of formulating replacement standards for
those portions of the 1991 Bay/Delta Plan that were disapproved. In
January 1992, the Governor of California announced a new water policy
that included a directive to the Board to establish ``interim
measures'' to reverse the decline of fishes in the Bay and Delta.
Accordingly, the Board released an interim water quality plan (Draft
Decision 1630) in December 1992 that immediately was suspended by the
Governor.
EPA's proposed rule to promulgate Water Quality Standards for
Surface Waters of the Sacramento River, San Joaquin River, and San
Francisco Bay and Delta is published in this same Federal Register
separate part; however, enforcement of these standards may be
difficult. The Service is aware that the salinity standards currently
in effect (Water Right Decision 1485) are inconsistently implemented
and frequently violated. Institutional guarantees of compliance have
been lacking in the past and are needed in the future before existing
mechanisms can contribute to the protection of this species.
The Service currently is analyzing the potential effects on the
splittail and other fish and wildlife resources in California as a
result of recent enactment of the Central Valley Project Improvement
Act (Pub. L. 102-575). Two of the stated purposes of this act are to:
``Protect, restore, and enhance fish, wildlife, and associated habitats
in the Central Valley and Trinity River basins of California'' and ``to
contribute to the State of California's interim and long-term efforts
to protect the San Francisco Bay-Sacramento-San Joaquin Delta
Estuary.'' Section 3406(b)(2) dedicates 800,000 acre-feet of Central
Valley Project water annually for various purposes, including the
benefit of federally listed species. Although the Service is reasonably
certain that the splittail will realize some benefit from
implementation of the Central Valley Project Improvement Act, the
magnitude and timeliness of these protections may be inadequate to
prevent further decline of splittail.
Protective measures currently being implemented to benefit the
delta smelt will beneficially affect the splittail by restricting
pumping under certain conditions. However, the ecological requirements
of each species differ, especially with respect to timing of important
developmental stages and habitat use. Splittail need flooded lowland
habitat for spawning and are particularly vulnerable to disturbance or
destruction of marshy habitat. Therefore, the protections afforded the
delta smelt, listed as threatened in 1993 under the Endangered Species
Act, will not be sufficient to prevent further decline of the
splittail. For the reasons stated above, the Service considers the
existing regulatory mechanisms inadequate to ensure the long-term
existence of the Sacramento splittail.
E. Other natural or manmade factors affecting its continued existence
Splittail are vulnerable to extinction from stochastic events
because of the consistent decline in population indices and severely
constricted ranges and distribution.
Poor water quality also may adversely affect splittail, either
through direct exposure to toxins or depletion of zooplankton or
invertebrate food sources. All major rivers that are tributary to the
Estuary are exposed to large volumes of agricultural and industrial
chemicals that are applied in the Central Valley watershed (Nichols et
al. 1986). Agricultural chemicals and their residues, as well as
chemicals originating in urban runoff, find their way into the rivers
and Estuary. Approximately 10 percent of the total pesticide use in the
United States occurs in the Sacramento and San Joaquin River
watersheds, primarily on orchards, alfalfa, and rice during the months
of January to June of each year (Jewel Bennett, U.S. Fish and Wildlife
Service, in litt., 1993). Recently, high concentrations of
organophosphate and carbamate pesticides from agricultural uses have
been documented entering the Estuary. These pesticides are acutely
toxic to zooplankton and fishes as far west as Martinez in Suisun Bay
and as far south as Vernalis on the San Joaquin River (Bennett, in
litt., 1993). The periods of pesticide use coincide with the timing of
migration, spawning, and early development of splittail. During
rainfall runoff events, acutely toxic pulses of pesticides move down
the rivers and through the Estuary with remarkable persistence and
relatively little dilution.
Toxicology studies of rice field irrigation drain water of the
Colusa Basin Drainage Canal have documented significant toxicity of
drain water to striped bass embryos and larvae, Oryzias latipes larvae
(in the Cyprinodontidae family), and the opossum shrimp, which is the
major food organism of striped bass larvae and juveniles (Bailey et al.
1991). This drainage canal flows into the Sacramento River just north
of the City of Sacramento. The majority of drain water samples
collected during April and May 1990 were acutely toxic to striped bass
larvae (96 hour exposures); this was the third consecutive year that
the Colusa Basin rice irrigation drain water was acutely toxic (Bailey
et al. 1991). Splittail may be similarly affected by agricultural and
industrial chemical run-off.
Some heavy metal contaminants have been released into the Estuary
from industrial and mining enterprises. While the effects of these
contaminating compounds on splittail larvae and their zooplankton food
resources are not well known, the compounds could adversely affect
survival. In addition, increases in urban development in the Sacramento
Valley will continue to result in concurrent increases in urban runoff.
Selenium has been found in aquatic organisms (Saiki and Lowe 1987) and
fish species in the San Joaquin River watershed (Nakamoto and Hassler
1992). Selenium has been shown to cause developmental defects in and
mortality of fish species (Hermanutz 1992).
In recent years, untreated discharges of ship ballast water has
introduced exotic aquatic species to the Estuary ecosystem (Carlton et
al. 1990). Several exotic species may adversely affect the splittail.
An asian clam (Potamocorbula amurensis), introduced as veliger larvae
in 1986, was first discovered in Suisun Bay during October 1986. By
June 1987, the Asian clam was widespread in Suisun, San Pablo, and San
Francisco Bays irrespective of salinity, water depth, and sediment type
at densities greater than 10,000 individuals per square meter. Asian
clam densities declined to 4,000 individuals per square meter as the
population aged during the year (Carlton et al. 1990). Persistently low
river outflow and concomitant elevated salinity levels may have
contributed to this species' population explosion (Carlton et al.
1990). The Asian clam could potentially play an important role in
affecting the phytoplankton dynamics in the Estuary. The clam may have
an effect on higher trophic levels by decreasing phytoplankton biomass.
Historically, Eurytemora affinis, the native euryhaline copepod,
has been the most important food for larval fishes in the Estuary.
Three non-native species of euryhaline copepods (Sinocalanus doerrii,
Pseudodiaptomus forbesi, and Pseudodiaptomus marinus) became
established in the Delta between 1978 and 1987 (Carlton et al. 1990),
while E. affinis populations have declined since 1980. It is not known
if the exotic species have displaced E. affinis or whether changes in
the estuarine ecosystem now favor S. doerrii and the two
Pseudodiaptomus species (Moyle et al. 1989). S. doerrii is difficult
for larval fishes to catch because of its fast swimming and effective
escape response (Meng and Orsi 1991). Reduced feeding efficiency and
ingestion rates weaken and slow the growth of splittail young and make
them more vulnerable to starvation or predation.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this species in determining to propose this
rule. Sacramento splittail have declined by 62 percent over the last 15
years. This species has been extirpated from portions of its range. In
the Estuary during the past 2 decades, the entrapment zone, associated
with the important nurseries for splittail, has been more frequently
shifted upstream to a confined area of greater depth as a result of
drought conditions, water management schedules, and the continual and
increasing demand for water exports and diversions. These factors will
continue to adversely affect all life stages of splittail.
Threatened status is proposed for the Sacramento splittail because
of several factors. The population has declined by 62 percent within 15
years. The historical and current range of the species is constricted.
Changes in water salinity and the reverse flow of water has shifted the
distribution of individuals upstream and has caused the fish to be
vulnerable to State and Federal pumping plants. The death of these fish
due to pumping continues at present and is likely to continue in the
future. Water exports also threaten the quality and quantity of habitat
at present and for the future. Because Sacramento splittail are long-
lived, their decline has been gradual, and extinction is not imminent,
listing the splittail as endangered would not be appropriate. Although
this species is not in imminent danger of extinction at this time, it
is likely to become endangered in the foreseeable future.
Therefore, based on the evaluation of all available information on
abundance, present distribution, and threats to this species, the
Service has determined that proposing to list the Sacramento splittail
as threatened is appropriate at this time. Critical habitat is not
determinable for reasons discussed in the ``Critical Habitat'' section
of this rule.
Critical Habitat
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, the Secretary propose critical habitat
concurrently with proposing a species to be endangered or threatened.
The Service finds that designation of critical habitat for the
Sacramento splittail is not determinable at this time. Regulations at
50 CFR 424.12(a)(2) state that critical habitat is not determinable if
information sufficient to perform required analyses of the impacts of
the designation is lacking or if the biological needs of the species
are not sufficiently known to permit identification of an area of
critical habitat. The Service's efforts to gather information on the
potential benefits of designating critical habitat for splittail may
lead to the conclusion that designation of critical habitat is not
prudent. Regulations at 50 CFR 424.12(a)(1) state that a designation of
critical habitat is not prudent when the species is threatened by
taking or other human activity, and identification of critical habitat
can be expected to increase the degree of such threat to the species,
or when such designation would not be beneficial to the species.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain activities. Recognition through listing encourages and
results in conservation actions by Federal, State, and private
agencies, groups, and individuals. The Endangered Species Act provides
for possible land acquisition and cooperation with the States and
requires that recovery actions be carried out for all listed species.
Such actions are initiated by the Service following listing. The
protection required of Federal agencies and the prohibitions against
taking and harm are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer informally with the Service on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat. If a
species is subsequently listed and its critical habitat is designated,
section 7(a)(2) requires Federal agencies to insure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal actions that may affect the splittail or its critical
habitat, should any be designated, include those authorized, carried
out, or funded by the Army Corps of Engineers, Bureau of Reclamation,
National Marine Fisheries Service, and EPA. The Army Corps of Engineers
funds projects and issues permits for water pumping and diversion
facilities, levee construction or repair, bank protection activities,
deep-water navigation channel dredging and dredge spoil disposal
projects, sand and gravel extraction, marina and bridge construction,
diking of wetlands for conversion to farmland, and tidal gate or
barrier installation. The Bureau of Reclamation and California
Department of Water Resources construct, operate, and/or manage water
export facilities. EPA reviews State water quality standards and
promulgates replacement standards, pursuant to the Clean Water Act, if
State standards are found to be inadequate. In 1991, EPA disapproved
portions of the California State Water Resources Control Board's Water
Quality Control Plan for Salinity for the San Francisco Bay-Sacramento-
San Joaquin Delta Estuary. Accordingly, EPA has published in this same
Federal Register separate part proposed replacement standards for those
portions of the State's salinity standards that were disapproved.
Under section 4 of the Act, listing the splittail will provide
additional impetus for the development of a recovery plan to bring
together Federal, State, and private efforts to develop conservation
strategies for this species. The Service has convened the Delta Native
Fishes Recovery Team to prepare a recovery plan for declining native
fishes in the Estuary. The recovery plan will develop a framework for
agencies to coordinate activities and cooperate with each other in
conservation efforts. The plan will set recovery priorities and
estimate the costs of various tasks necessary to accomplish recovery
goals. Site-specific management actions necessary to achieve survival
and recovery of the splittail and other fishes native to the Estuary
ecosystem also will be described in this plan.
The Act and its implementing regulations found at 50 CFR 17.31 set
forth a series of general prohibitions and exceptions that apply to all
threatened wildlife not covered by a special rule. These prohibitions,
in part, would make it illegal for any person subject to the
jurisdiction of the United States to take (including harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt
any such conduct), import or export, transport in interstate or foreign
commerce in the course of commercial activity, or sell or offer for
sale in interstate or foreign commerce any such species. It also is
illegal to possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally. Certain exceptions apply to
agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered or threatened wildlife species under certain
circumstances. Regulations governing permits are at 50 CFR 17.22 and
17.23. Permits for threatened species are available for scientific
purposes, to enhance the propagation or survival of the species, and
for incidental take in connection with otherwise lawful activities. In
some instances, permits may be issued during a specified period of time
to relieve undue economic hardship that would be suffered if such
relief were not available. For threatened species, permits are lawful
for zoological exhibition, educational purposes, or special functions
consistent with the purposes of the Act. Further information regarding
regulations and requirements for permits may be obtained from the U.S.
Fish and Wildlife Service, Ecological Services, Permits Branch, 911 NE.
11th Avenue, Portland, Oregon 97232-4181 (503/231-6241; FAX 503/231-
6243).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to this species;
(2) The location and status of any additional populations of this
species and the reasons why any habitat should or should not be
determined to be critical habitat as provided by section 4 of the Act.
Biological information that would be useful in determining whether to
designate critical habitat includes descriptions and locations of
spawning habitat and life history information on behavior and
ecological needs;
(3) Additional information concerning the range, distribution, and
population size of this species; and
(4) Current or planned activities in the subject area and their
possible impacts on this species.
Any final decision on this proposal will take into consideration
the comments and any additional information received by the Service,
and such communications may lead to final regulations that differ from
this proposal.
The Act provides for a public hearing on this proposal, if
requested. Requests must be received within 45 days of the date of
publication of the proposal. Such requests must be made in writing and
addressed to the Acting Field Supervisor, Sacramento Field Office (see
ADDRESSES section).
National Environmental Policy Act
The Service has determined that an Environmental Assessment, as
defined under the authority of the National Environmental Policy Act of
1969, need not be prepared in connection with regulations adopted
pursuant to section 4(a) of the Endangered Species Act of 1973, as
amended. A notice outlining the Service's reasons for this
determination was published in the Federal Register on October 25, 1983
(48 FR 49244).
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Wang, J.C.S. 1986. Fishes of the Sacramento-San Joaquin estuary and
adjacent waters, California: A guide to the early life histories.
Interagency Ecological Study Program for the Sacramento-San Joaquin
Estuary, Tech. Rept. 9.
Authors
The authors of this rule are Dr. Lesa Meng and Nadine R. Kanim,
Sacramento Field Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulations Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Section 17.11(h) is amended by adding the following, in
alphabetical order under FISHES, to the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
----------------------------------------------- Historic range where endangered or Status When listed Critical Special rules
Common name Scientific name threatened habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes:
* * * * * * *
Splittail, Pogonichthys U.S.A. (CA).......... Entire............... T .............. NA NA
Sacramento. macrolepidotus.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: December 21, 1993.
Richard N. Smith,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 94-91 Filed 1-5-94; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 94-90 Endangered and Threatened Wildlife and Plants; Revised Proposed Critical Habitat Determination for the Delta Smelt
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 852-862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-90]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB66
Endangered and Threatened Wildlife and Plants; Revised Proposed
Critical Habitat Determination for the Delta Smelt
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Fish and Wildlife Service (Service) revises its proposed
designation of critical habitat for the delta smelt (Hypomesus
transpacificus) originally published on October 3, 1991, concurrently
with the proposal to list the species, pursuant to the Endangered
Species Act of 1973, as amended (Act). The final rule listing the delta
smelt as a threatened species was published on March 5, 1993. In the
final rule, the Service postponed the decision on critical habitat
determination for up to 1 year beyond the date that the final rule was
due (October 3, 1993) in accordance with section 4(b)(6)(C)(ii) of the
Act. The Service has refined the primary constituent elements described
in the original critical habitat proposal. This revised proposed rule
supersedes all aspects of the Service's previous proposal. Critical
habitat designation for the delta smelt would provide additional
protection under section 7 of the Act with regard to activities that
require Federal agency action. As required by section 4 of the Act, the
Service will consider economic and other relevant impacts prior to
making a final decision on the size and configuration of critical
habitat. The Service solicits data and comments from the public on all
aspects of this revised proposal.
DATES: Comments from all interested parties must be received by March
7, 1994. Public hearing requests must be received by February 22, 1994.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Acting Field Supervisor, Fish and Wildlife Service,
Sacramento Field Office, 2800 Cottage Way, room E-1803, Sacramento,
California 95825-1846. Comments and materials received will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Dale Pierce, Sacramento Field Office
(see ADDRESSES section) at (916) 978-4866.
SUPPLEMENTARY INFORMATION:
Background
Previous Service Action
In the January 6, 1989 (50 FR 554), Animal Notice of Review, the
Service included the delta smelt as a category 1 candidate species.
Category 1 includes species for which data in the Service's possession
are sufficient to support proposals for listing. On June 29, 1990, the
Service received a petition dated June 26, 1990, from Dr. Don C. Erman,
President-Elect of the California-Nevada Chapter of the American
Fisheries Society, to list the delta smelt as an endangered species
with critical habitat. The Service made a 90-day finding that
substantial information had been presented indicating that the
petitioned action may be warranted and announced this decision in the
Federal Register on December 24, 1990 (55 FR 52852). On October 3, 1991
(56 FR 50075), the Service published a proposal to list the delta smelt
as a threatened species and to designate critical habitat. This
proposed rule constituted the 12-month petition finding in accordance
with section 4(b)(3)(B) of the Act.
Critical habitat was proposed for areas of all water and all
submerged lands below ordinary high water and the entire water column
bounded by and contained within Suisun Bay (including the contiguous
Grizzly and Honker Bays), the length of Montezuma Slough, portions of
the Sacramento River, portions of the Sacramento-San Joaquin Delta,
portions of the San Joaquin River, and the contiguous water bodies in
between (a complex of bays, dead-end sloughs, channels typically less
than four meters deep, marshlands, etc.), California. The public
comment period opened on the date of publication of the proposed rule
(October 3, 1991) and closed on January 31, 1992.
The Service published a notice of public hearing on the proposed
rule on December 19, 1991 (56 FR 65877). Public hearings were conducted
in California on January 9, 1992, in Sacramento; on January 14, 1992,
in Santa Monica; and on January 16, 1992, in Visalia. At each meeting,
testimony was taken from 1 p.m. to 4 p.m. and from 6 p.m. to 9 p.m.
The final rule listing the delta smelt as a threatened species was
published on March 5, 1993 (58 FR 12854). In the final rule, the
Service postponed the decision on critical habitat designation for up
to 1 year beyond the date that the final rule was due (October 3, 1993)
in accordance with section 4(b)(6)(C)(ii) of the Act. The economic
analysis necessary to determine critical habitat was still in progress
at that time. On March 16, 1993 (58 FR 14199), the Service published a
notice that the public comment period on the proposed designation of
critical habitat for the delta smelt was reopened until April 30, 1993,
to allow the Service to consider any information that previously had
not been submitted.
Revisions to the October 3, 1991, Critical Habitat Proposal
The Service is required to base critical habitat designations on
the best scientific and commercial data available (50 CFR 424.12).
Subsequent to publication of the October 3, 1991, proposed rule, the
Service received new information on the current distribution of the
delta smelt, primarily from other State and Federal agencies.
Based primarily on information gathered by the California
Department of Fish and Game (Dale Sweetnam, California Department of
Fish and Game, pers. comm., 1993) and University of California, Davis
(Lesa Meng, University of California, pers. comm., 1993), the Service
proposes to expand the geographic extent of critical habitat to include
additional areas now known to constitute important spawning habitat. In
1993, delta smelt spawned in the Sacramento River, at least as far
upstream as Sacramento and Barker, Lindsey, Cache, Georgiana, Prospect,
Beaver, Hog, and Sycamore Sloughs (Dale Sweetnam, pers. comm., 1993).
In 1991, when delta smelt had all but disappeared from Suisun Marsh,
relatively large numbers of delta smelt were caught in Suisun Slough,
as far upstream as Suisun City (Lesa Meng, pers. comm., 1993). For
these reasons, the proposed critical habitat has been revised to
encompass these upstream habitats. Protection of these upstream
spawning habitats is essential to ensure recovery of the species.
Hence, this rule proposes critical habitat for the following geographic
area: Areas of all water and all submerged lands below ordinary high
water and the entire water column bounded by and contained in Suisun
Bay (including the contiguous Grizzly and Honker Bays); the length of
Goodyear, Suisun, Cutoff, First Mallard (Spring Branch), and Montezuma
Sloughs; and the existing contiguous waters contained within the Delta.
As used in this rule, the term ``Delta'' refers to all tidal waters
contained within the legal definition of the Sacramento-San Joaquin
Delta, as delineated by section 12220 of the State of California's
Water Code of 1969.
In an April 23, 1993, letter, received during the public comment
period, the Environmental Protection Agency (EPA) requested that new
scientific information presented in its draft proposed Bay/Delta water
quality standards be considered in the Service's designation of
critical habitat. The Service has used this information to refine the
primary constituent elements described in the original critical habitat
proposal. (The term ``primary constituent element'' is defined in the
``Primary Constituent Elements'' section of this rule.) The Service's
original proposal listed the following constituent elements: Space for
population growth, cover or shelter, maintenance of appropriate
littoral zone reproduction habitat to sustain embryos and to rear
larvae and juveniles, and 0-2 parts per thousand (ppt) salinities
during the January to June delta smelt reproductive season. As part of
the background for formulation of its proposed water quality standards,
EPA analyzed the number of days that low salinity (2 ppt) water
historically was located at three positions in Suisun Bay. The revised
primary constituent elements incorporate this new information. As
described in the ``Primary Constituent Elements'' section of this rule,
the Service has revised the primary constituent elements to include
those features that provide temporal and spatial variability of low
salinity waters that will deter further invasion of exotic species,
produce high zooplankton densities for food, and simulate natural
processes and historical conditions. The primary constituent elements
also describe in detail the months that each delta smelt life stage
requires protective habitat conditions.
After considering the information presented by EPA, the Service has
determined that, if implemented, EPA's proposed water quality standards
would likely significantly affect critical habitat as proposed in the
October 3, 1991, rule. Consequently, the Service is proposing this
revised rule to reduce the potential for inconsistencies between EPA's
standards and the Service's proposed critical habitat. Resolving the
inconsistencies will afford the smelt the same or better protection as
would have been achieved through the earlier proposal.
Relationship Between Fish and Wildlife Service and EPA Actions
The Clean Water Act and Endangered Species Act as written do not
specify how government actions should be coordinated or agency
conflicts should be resolved. However, because the Service and EPA
recognize that their proposed regulatory actions overlap both
biologically and economically, both agencies are working closely to
provide a comprehensive, ecosystem-based approach to the protection of
the fish and wildlife resources of the San Francisco Bay/Sacramento-San
Joaquin Delta Estuary. This coordination should also provide a set of
regulatory actions that are integrated in both substance and timing.
Section 7 of the Endangered Species Act requires that all Federal
agencies ensure that their actions do not jeopardize the continued
existence of listed species or adversely modify listed species'
critical habitat. EPA's proposed action to designate water quality
standards must comply with the section 7 requirement. EPA has initiated
a formal consultation process under section 7. Additionally, the Clean
Water Act requires protection of the most sensitive use within each
category of designated uses. Protection of endangered and threatened
species is considered a designated use within the meaning of the Clean
Water Act; therefore, a species listing under the Endangered Species
Act provides one method to identify the most sensitive use within the
designated uses of a water body.
Biologically, the proposed critical habitat for the delta smelt and
the salinity criteria that constitute EPA's proposed water quality
standards are directly related. Specifically, the occurrence of
salinities of 2 parts per thousand (ppt) in Suisun Bay was identified
as a critical habitat primary constituent element in the October 3,
1991, critical habitat proposal. Subsequent scientific publications
indicate that salinities associated with the distribution of delta
smelt may provide the best basis for setting standards for many species
that are affected by freshwater discharge from the Bay/Delta Estuary.
Favorable conditions from February through June are extremely important
to the abundance and reproductive success of almost all species that
live in or migrate through the upper Bay/Delta Estuary. EPA's proposed
water quality standards address the location of 2 ppt salinities from
February to June and, therefore, address both critical habitat
requirements for delta smelt and a range of interrelated parameters
that affect other species that rely on estuarine habitat.
Habitat Requirements
Historically, the delta smelt is thought to have occurred from
Suisun Bay upstream to the city of Sacramento on the Sacramento River
and Mossdale on the San Joaquin River (Moyle et al. 1992). Recently,
however, Wang (1991) recorded larval delta smelt from the Sacramento
River as far north as its confluence with the Feather River. The delta
smelt is an euryhaline species (tolerant of a wide salinity range) that
spawns in fresh water and has been collected from estuarine waters up
to 14 grams per liter (ppt) salinity (Moyle et al. 1992). For a large
part of its annual life span, this species is associated with the
freshwater edge of the entrapment zone (mixing zone at the saltwater-
freshwater interface), where the salinity is approximately 2 ppt
(Ganssle 1966, Moyle et al. 1992, Sweetnam and Stevens 1993).
The delta smelt is adapted to living in the highly productive
Sacramento-San Joaquin River Estuary (Estuary) where salinity varies
spatially and temporally according to tidal cycles and the amount of
freshwater inflow. (The term estuary refers to a partially enclosed
water body of variable salinity with freshwater and seawater inflow.)
Despite this tremendously variable environment, the historical Estuary
probably offered relatively constant suitable habitat conditions to
delta smelt, which could move upstream or downstream with the
entrapment zone (Peter Moyle, University of California, pers. comm.,
1993). Since the 1850s, however, the amount and extent of suitable
habitat for the delta smelt has declined dramatically. The advent in
1853 of hydraulic mining in the Sacramento and San Joaquin Rivers led
to increased siltation and alteration of the circulation patterns of
the Estuary (Nichols et al. 1986, Monroe and Kelly 1992). The
reclamation of Merritt Island for agricultural purposes in the same
year marked the beginning of the present-day cumulative loss of 94
percent of the Estuary's tidal marshes (Nichols et al. 1986, Monroe and
Kelly 1992).
In addition to this degradation and loss of estuarine habitat, the
delta smelt has been increasingly subject to entrainment, upstream or
reverse flows of waters in the Delta and San Joaquin River, and
constriction of habitat in the less productive, deep-water river
channels of the Delta (Moyle et al. 1992). These adverse conditions are
primarily a result of the steadily increasing proportion of water
diverted from the Delta by the Federal and State water projects (Monroe
and Kelly 1992). Water delivery through the Federal Central Valley
Project began in water year 1940. The State Water Project began
delivering water in 1968. However, the proportion of fresh water being
diverted has increased since 1983 and has remained at high levels
(Moyle et al. 1992). The high proportion of fresh water exported has
exacerbated the already harsh environmental conditions experienced by
the delta smelt during the recent 6-year drought. The March 5, 1993 (58
FR 12854), final rule listing the delta smelt as a threatened species
describes in detail the factors that have led to this species' decline.
This revised proposed rule to designate critical habitat for the
delta smelt focuses on habitat conditions required during specific life
stages (spawning, larval and juvenile transport, rearing, and adult
migration) of this annual species to ensure its eventual recovery.
Shortly before spawning, adult delta smelt migrate upstream from the
highly productive brackish-water habitat associated with the entrapment
zone to disperse widely into river channels and tidally-influenced
backwater sloughs (Radtke 1966, Moyle 1976, Wang 1991). Migrating
adults with nearly mature eggs have been taken at the Central Valley
Project's Tracy Pumping Plant from late December 1990 to April 1991
(Wang 1991).
Delta smelt spawn in shallow, fresh or slightly brackish water
upstream of the entrapment zone (Wang 1991). Most spawning occurs in
tidally-influenced backwater sloughs and channel edgewaters (Moyle
1976; Wang 1986, 1991; Moyle et al. 1992). Although delta smelt
spawning behavior has not been observed (Moyle et al. 1992), the
adhesive, demersal eggs are thought to attach to substrates such as
cattails and tules, tree roots, and submerged branches (Moyle 1976,
Wang 1991). In the Delta, spawning is known to occur in the Sacramento
River and in Barker, Lindsey, Cache, Georgiana, Prospect, Beaver, Hog,
and Sycamore Sloughs (Wang 1991; Dale Sweetnam, pers. comm., 1993).
Delta smelt also spawn north of Suisun Bay in Montezuma and Suisun
Sloughs and their tributaries (Dale Sweetnam, pers. comm., 1993; Lesa
Meng, pers. comm., 1993).
The spawning season varies from year to year and may occur from
late winter (December) to early summer (July). Moyle (1976) collected
gravid adults from December to April, although ripe delta smelt were
most common in February and March. In 1989 and 1990, Wang (1991)
estimated that spawning had taken place from mid-February to late June
or early July, with the peak spawning period occurring in late April
and early May.
Based on data for a closely related species, delta smelt eggs
probably hatch in 12 to 14 days (Moyle et al. 1992). After hatching,
larvae are transported downstream toward the entrapment zone where they
are retained by the vertical circulation of fresh and salt waters
(Stevens et al. 1990). The pelagic larvae and juveniles feed on
zooplankton. When the entrapment zone is located in a broad geographic
area with extensive shallow-water habitat within the euphotic zone
(depths less than 4 meters), high densities of phytoplankton and
zooplankton are produced (Arthur and Ball 1978, 1979, 1980), and larval
and juvenile fish, including delta smelt, grow rapidly (Moyle et al.
1992, Sweetnam and Stevens 1993). In general, estuaries are among the
most productive ecosystems in the world (Goldman and Horne 1983).
Estuarine environments produce an abundance of fish as a result of
plentiful food and shallow, protective habitat for young.
When the entrapment zone is contained within Suisun Bay, young
delta smelt are dispersed widely throughout a large expanse of shallow-
water and marsh habitat. Dispersion in areas downstream from the State
and Federal water pumps and in-Delta agricultural diversions protects
young smelt from entrainment and distributes them among the extensive,
protective, and highly productive shoal regions of Suisun Bay. In
contrast, when located upstream, the entrapment zone becomes confined
in the deep river channels, which are smaller in total surface area,
contain fewer shoal areas, have swifter, more turbulent water currents,
and lack high zooplankton productivity.
Erkkila et al. (1950) collected young delta smelt near Sherman
Island, at the confluence of the Sacramento and San Joaquin Rivers, in
July and August of 1948. In studies by the California Department of
Fish and Game, California Department of Water Resources, and Bureau of
Reclamation, larval and juvenile delta smelt were collected from Roe
Island in Suisun Bay north to the confluence of the Sacramento and
Feather Rivers and east to Medford Island on the San Joaquin River
(Wang 1991). These studies were conducted during the months of April
through mid-July in 1989 and 1990. Through these distribution surveys,
Wang (1991) was able to document the movement of juvenile delta smelt
from the Delta to Suisun Bay in late June and early July. In 1990,
young delta smelt were taken at the Tracy Pumping Plant at the end of
February (Wang 1991).
Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as ``(i)
the specific areas within the geographic area occupied by the species *
* * on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and (ii) specific
areas outside the geographical area occupied by the species at the time
it is listed * * * upon a determination * * * that such areas are
essential for the conservation of the species.'' The term
``conservation,'' as defined in section 3(3) of the Act, means ``* * *
to use and the use of all methods and procedures which are necessary to
bring an endangered species or threatened species to the point at which
the measures provided pursuant to this Act are no longer necessary.''
Therefore, areas designated as critical habitat must contain those
physical or biological features essential to recover a species to the
point that it no longer requires protection under the Act. Hence,
critical habitat designation affords species additional protection
above and beyond those of listing in that it preserves options for the
species' eventual recovery. Section 3 further states that in most cases
the entire range of a species should not be encompassed within critical
habitat.
Critical habitat designations alert Federal and State agencies,
other organizations, and the public about the importance of an area in
the conservation of a listed species. Critical habitat also identifies
areas that may require special management or protection. Critical
habitat receives protection under section 7 of the Act with regard to
actions carried out, funded, or authorized by Federal agencies. Section
7 requires that Federal agencies consult on actions that may affect
critical habitat to ensure that their actions are not likely to destroy
or adversely modify critical habitat. Section 7 also requires Federal
agencies to confer on Federal actions that are likely to result in
adverse modification or destruction of proposed critical habitat. Aside
from the added protection provided under section 7, the Act does not
provide other direct forms of protection to lands designated as
critical habitat.
In addition to considering biological information in designating
critical habitat, the Service also considers economic and other
relevant impacts of designating critical habitat. The Secretary may
exclude areas from critical habitat when the benefits of such exclusion
outweigh the benefits of including the areas within critical habitat,
provided that the exclusion will not result in the extinction of a
species.
Primary Constituent Elements
In determining which areas to designate as critical habitat, the
Service considers those physical and biological features that are
essential to a species' conservation (50 CFR 424.12). The Service is
required to list the known primary constituent elements together with a
description of any critical habitat that is proposed. Such physical and
biological features (i.e., primary constituent elements) include, but
are not limited to, the following:
(1) Space for individual and population growth, and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing of offspring,
germination, or seed dispersal; and
(5) Generally, habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
Following are the primary constituent elements necessary to
conserve the delta smelt. These elements were determined in
coordination with EPA in preparation of its proposed water quality
standards. EPA's proposed rule to promulgate Water Quality Standards
for Surface Waters of the Sacramento River, San Joaquin River, and San
Francisco Bay and Delta of the State of California is published in this
same Federal Register separate part. In its proposed rule, EPA has
requested specific comments on several issues, including the
possibility of modifying the Sacramento River Index for the purposes of
developing the salinity criteria, alternative approaches to the
averaging period used in its proposed salinity criteria, and evaluation
of the merits of the use of difference forms of confidence intervals
with the proposed criteria. The Fish and Wildlife Service will consider
these comments also in developing its final rule.
The primary constituent elements are organized by habitat
conditions required for each life stage. The specific geographic areas
and seasons identified for each habitat condition specified below
represent the maximum possible range of each of these variables.
Each of the habitat conditions specified below requires as its
basis placement of the 2 ppt isohaline at or downstream of the
Sacramento-San Joaquin River confluence from February through June. (An
isohaline is a line that can be drawn to connect all points of equal
salinity.) Furthermore, the location of the 2 ppt isohaline must vary
according to water years because:
(1) Temporal and spatial variability of the 2 ppt isohaline will be
the most effective deterrent to further invasion of new introduced
species and continued competition by those that are already
established,
(2) Placement of the 2 ppt isohaline in an area will also produce
the high phytoplankton and zooplankton densities that characterize most
healthy estuarine ecosystems, and
(3) Variability is needed to simulate natural processes and
historical conditions.
Table 1 lists the number of days (based on a 14-day running
average) that the 2 ppt isohaline must be located at Roe Island, Chipps
Island, or the Sacramento-San Joaquin River confluence during wet,
above normal, below normal, dry, and critically dry years to achieve
the life-stage habitat conditions described below. These required
salinity criteria are based on historical records of the water years
between October 1939 (subsequent to the operation of the Federal and
State water projects) and September 1975 (prior to the decline of the
delta smelt) (Harry Seraydarian, EPA, in litt., 1993; Bruce Herbold,
EPA, pers. comm., 1993). However, because no critically dry years
occurred during this period, the salinity criteria (required number of
days) for these years are based on an extrapolation of the data.
Table 1.--Required Salinity Criteria for Suisun Bay to Reflect
Historical Habitat Conditions
[Values represent the number of days that the 2 ppt isohaline must be
placed at three locations within the Sacramento-San Joaquin River
Estuary]
------------------------------------------------------------------------
Roe Island [km Chipps Island Confluence [km
Year type 64] [km 74] 81]
------------------------------------------------------------------------
Wet..................... 133 148 150
Above normal............ 105 144 150
Below normal............ 78 119 150
Dry..................... 33 116 150
Critically dry.......... 0 90 150
------------------------------------------------------------------------
The Roe Island salinity criteria are meant to replicate natural
spring storm cycles and are invoked only after uncontrolled runoff has
placed the 2 ppt isohaline seaward of Roe Island. Therefore, the
criteria for Roe Island represent the maximum number of days that the 2
ppt isohaline must be located there.
Spawning Habitat--Delta smelt adults seek shallow, tidally-
influenced, freshwater (i.e., less than 2 ppt salinity) backwater
sloughs and edgewaters for spawning. To ensure egg hatching and larval
viability, spawning areas also must provide suitable water quality
(i.e., low concentrations of pollutants) and substrates for egg
attachment (e.g., submerged tree roots and branches and emergent
vegetation). Specific areas that have been identified as important
delta smelt spawning habitat include Barker, Lindsey, Cache, Prospect,
Georgiana, Beaver, Hog, and Sycamore Sloughs and the Sacramento River
in the Delta, and tributaries of northern Suisun Bay. The spawning
season varies from year to year and may start as early as December and
extend until July.
Larval and Juvenile Transport--To ensure that delta smelt larvae
are transported from the area where they are hatched to shallow,
productive rearing or nursery habitat, the Sacramento and San Joaquin
Rivers and their tributary channels must be protected from physical
disturbance (e.g., sand and gravel mining, diking, dredging, and levee
or bank protection and maintenance) and flow disruption (e.g., water
diversions that result in entrainment and in-channel barriers or tidal
gates). Adequate river flow is necessary to transport larvae to rearing
habitat in Suisun Bay. To ensure that suitable rearing habitat is
available in Suisun Bay, the salinity criteria described above in Table
1 are required. Reverse flows that maintain larvae upstream in deep-
channel regions of low productivity and expose them to entrainment
interfere with these transport requirements. Suitable water quality
must be provided so that maturation is not impaired by pollutant
concentrations. The specific geographic area important for larval
transport is confined to waters contained within the legal boundary of
the Delta, Suisun Bay, and Montezuma Slough and its tributaries. The
specific season when habitat conditions identified above are important
for successful larval transport varies from year to year depending on
when peak spawning occurs. Therefore, habitat conditions suitable for
transport of larvae and juveniles may be required as early as February
1 and as late as August 31.
Rearing Habitat--Maintenance of the 2 ppt isohaline (according to
the salinity criteria described in Table 1) and suitable water quality
(low concentrations of pollutants) within the Estuary is necessary to
provide delta smelt larvae and juveniles a shallow, protective, food-
rich environment in which to mature to adulthood. This placement of the
2 ppt isohaline also serves to protect larval, juvenile, and adult
delta smelt from entrainment in the State and Federal water projects.
However, additional flows above those required to implement the
February through June salinity criteria listed in Table 1 may be
required occasionally to protect larval and juvenile delta smelt from
being entrained in the State and Federal water projects during the
months of July and August. These additional flows will be required when
the previous year's abundance indices show that the adult population
already is at low levels and late spawning conditions have led to
distribution of larval and juvenile delta smelt upstream of the
confluence of the Sacramento and San Joaquin Rivers in July and August.
An area extending eastward from Carquinez Straits, including Suisun
Bay, Grizzly Bay, Honker Bay, Montezuma Slough and its tributary
sloughs, up the Sacramento River to its confluence with Three Mile
Slough, and south along the San Joaquin River including Big Break,
defines the specific geographic area critical to the maintenance of
suitable rearing habitat. Three Mile Slough represents the approximate
location of the most upstream extent of tidal excursion when the
salinity criteria described in Table 1 are implemented. Protection of
rearing habitat conditions may be required from the beginning of
February to the end of August.
Adult Migration--Adult delta smelt must be provided unrestrained
access to suitable spawning habitat in a period that may extend from
December to July. Therefore, adequate flow and suitable water quality
must be maintained to attract migrating adults in the Sacramento and
San Joaquin River channels and their associated tributaries, including
Cache and Montezuma Sloughs and their tributaries. These areas also
must be protected from physical disturbance and flow disruption during
migratory periods.
To conserve the delta smelt, critical habitat is proposed for an
area encompassing the specific habitat conditions required by each life
stage identified above. Accordingly, critical habitat is proposed for
the following geographic area: Areas of all water and all submerged
lands below ordinary high water and the entire water column bounded by
and contained in Suisun Bay (including the contiguous Grizzly and
Honker Bays); the length of Goodyear, Suisun, Cutoff, First Mallard
(Spring Branch), and Montezuma Sloughs; and the existing contiguous
waters contained within the Delta. The proposed critical habitat is
contained within Contra Costa, Sacramento, San Joaquin, Solano, and
Yolo Counties, California. The ``Proposed Regulations Promulgation''
section provides a precise metes and bounds description of the revised
proposed critical habitat.
Effects of Critical Habitat Designation
Section 7(a)(2) of the Act requires Federal agencies to ensure that
the activities they authorize, fund, or carry out are not likely to
destroy or adversely modify critical habitat. This Federal
responsibility is in addition to the requirement in the same section of
the Act that Federal agencies ensure their actions do not jeopardize
the continued existence of any listed species.
Jeopardy is defined at 50 CFR 402.02 as any action that would be
expected to reduce appreciably the likelihood of both the survival and
recovery of a listed species. Destruction or adverse modification of
critical habitat is defined at 50 CFR 404.02 as a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for both the survival and recovery of a listed species. The regulations
also clearly state that such alterations include, but are not limited
to, alterations adversely modifying any of those physical or biological
features that were the basis for determining the habitat to be
critical. The requirement to consider potential adverse modification of
critical habitat is an incremental consideration above and beyond the
review necessary to evaluate the likelihood of jeopardy and incidental
take in section 7 consultations. In section 7 consultations, the
Service considers the potential for adverse modification of the primary
constituent elements identified in the critical habitat designation.
Section 4(b)(8) of the Act requires for any proposed or final
regulation that designates critical habitat a brief description and
evaluation of those activities (public or private) that may adversely
modify such habitat or may be affected by such designation. The Service
has identified the following list of activities that, depending on the
season of construction and scale of the project, may result in the
destruction or adverse modification of critical habitat without
necessarily jeopardizing the continued existence of the delta smelt:
(1) Sand and gravel extraction in river channels or marshes;
(2) Diking wetlands for conversion to farmland and dredging to
maintain these dikes;
(3) Levee maintenance and bank-protection activities, such as
riprapping, removal of vegetation, and placement of dredged materials
on levees of banks;
(4) Operation of the Montezuma Slough Control Structure; and
(5) Bridge and marina construction.
Construction and implementation of each of these actions requires
authorization by the Army Corps of Engineers pursuant to section 10 of
the Rivers and Harbors Act of 1899 and section 404 of the Clean Water
Act. Based on the Service's review of all existing or proposed projects
that may affect the delta smelt, the great majority that would likely
result in destruction or adverse modification of critical habitat also
would be likely to jeopardize the continued existence of the species.
The Service has not identified any proposed actions that might
jeopardize the delta smelt without adversely affecting its critical
habitat.
Considerations of Economic and Other Factors
Section 4(b)(2) of the Act requires the Service to consider
economic and other relevant impacts of specifying any particular area
to be included within the critical habitat boundary. The Secretary may
exclude any area from critical habitat should it be determined that the
benefits of such exclusion outweigh the benefits of specifying such an
area as part of the critical habitat unless it is determined, based on
the best scientific and commercial data available, that the failure to
designate such an area as critical habitat will result in the
extinction of the species concerned.
The impacts of designating critical habitat are in addition to the
economic and other impacts attributable to listing of the species.
Impacts attributable to listing include those resulting from the taking
prohibitions under section 9 of the Act and associated regulations.
``Take,'' as defined in section 3(18) of the Act, includes harm to a
listed species. ``Harm'' means an act that actually kills or injures
wildlife. Such an act may include significant habitat modification or
degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including
feeding, breeding, or sheltering (50 CFR 17.3).
Impacts attributable to listing also include those resulting from
the responsibility of Federal agencies under section 7 to ensure that
their actions are not likely to jeopardize the continued existence of
endangered or threatened species. An action could be likely to
jeopardize the continued existence of a listed species through the
destruction or modification of its habitat regardless of whether that
habitat has been formally designated as critical. The Act provides
significant protection to species, including protection to their
habitats, as a result of listing. Therefore, the direct economic and
other impacts resulting from additional habitat protection through
critical habitat designation may be incrementally small. In general,
the designation of critical habitat supplements the substantive
protection resulting from listing.
EPA has prepared a draft Regulatory Impact Analysis on its proposed
water quality standards. EPA's draft Regulatory Impact Analysis
includes an economic analysis of the effects of the designation of
critical habitat for the delta smelt. This economic analysis concludes
that economic costs attributable to the designation of critical habitat
for the delta smelt are relatively small and due primarily to the
effects designation of critical habitat would have upon the five types
of actions listed above under the section entitled ``Effects of
Critical Habitat Designation.'' An underlying assumption of the draft
economic analysis is that the costs associated with implementing EPA's
proposed water quality standards for the Bay/Delta are due primarily to
listing the delta smelt as threatened. As the Service refines its
economic analysis, it may determine that this assumption is to some
degree inappropriate and that some of the costs associated with
implementing the water quality standards may be attributable to the
designation of critical habitat.
The costs associated with sand and gravel operations (approximately
two aggregate operators are located in the Delta), diking or dredging
for agricultural activities, and marina or bridge construction are
expected to be similar. Project proponents or operators would incur
costs associated with wetlands restoration, using a replacement ratio
of 3 acres restored for 1 acre destroyed. The cost to restore 1 acre of
wetlands ranges between $10,000 and $50,000. However, for some tracts
of land, the costs associated with restoring wetlands may exceed the
value derived from the agricultural activity, in which case the cost
attributable to critical habitat would be the loss in agricultural
income. The costs attributable to a designation of critical habitat are
not expected to substantially affect levee maintenance operations
because Federal regulatory agencies currently have restrictions that
generally avoid adverse effects to the delta smelt. However, the
designation of critical habitat may result in leaving the Montezuma
Slough Control Structure's gates open from December to August rather
than November to March.
The Service will prepare a final economic analysis prior to making
its final determination on critical habitat. If that analysis
substantially differs from the draft summarized here, the Service will
make a revised economic analysis available to the public for comment
prior to a final determination on critical habitat.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain activities. Recognition through listing encourages and
results in conservation actions by Federal, State, and private
agencies, groups, and individuals. The Endangered Species Act provides
for possible land acquisition and cooperation with the States and
requires that recovery actions be carried out for all listed species.
Such actions are initiated by the Service following listing. The
protection required of Federal agencies and the prohibitions against
taking and harm are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer informally with the Service on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat. If a
species is subsequently listed and its critical habitat is designated,
section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Survival and recovery, mentioned in both the definition of adverse
modification and jeopardy (see ``Effects of Critical Habitat
Designation'' section), are directly related. Survival may be viewed as
a linear continuum between recovery and extinction of the species. The
closer a species is to recovery, the greater the certainty of the
species' continued survival. Thus, the terms survival and recovery are
related by the degree of certainty that the species will persist over a
given period of time. Survival relates to viability. Factors that
influence a species' viability include population numbers, distribution
throughout the range, stochasticity, expected duration, and
reproductive success. A species may be considered recovered when there
is a high degree of certainty for the species' continued viability.
The Act's definition of critical habitat indicates that the purpose
of critical habitat is to contribute to a species' conservation, which,
by definition, means recovery. Section 7 prohibitions against the
destruction or adverse modification of critical habitat apply to
actions that would impair survival and recovery of the listed species,
thus providing a regulatory means of ensuring that Federal actions
within critical habitat are considered in relation to the goals and
recommendations of a recovery plan. As a result of the link between
critical habitat and recovery, the prohibition against destruction or
adverse modification of critical habitat should protect the critical
habitat's ability to contribute fully to a species' recovery. Thus, the
adverse modification standard may be reached closer to the recovery end
of the survival continuum, whereas the jeopardy standard traditionally
has been applied nearer to the extinction end of the continuum.
Federal actions that may affect the delta smelt or its critical
habitat, should any be designated, include those authorized, carried
out, or funded by the Army Corps of Engineers, Bureau of Reclamation,
National Marine Fisheries Service, and EPA. The Army Corps of Engineers
funds projects and issues permits for water pumping and diversion
facilities, levee construction or repair, bank protection activities,
deep-water navigation channel dredging and dredge spoil disposal
projects, sand and gravel extraction, marina and bridge construction,
diking of wetlands for conversion to farmland, and tidal gate or
barrier installation. The Bureau of Reclamation and California
Department of Water Resources construct, operate, and/or manage water
export facilities. EPA reviews State water quality standards and
promulgates replacement standards, pursuant to the Clean Water Act, if
the State standards are found to be inadequate. In 1991, EPA
disapproved portions of the California State Water Resources Control
Board's Water Quality Control Plan for Salinity for the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary. Accordingly, EPA has prepared
proposed replacement standards for those portions of the State's
salinity standards that were disapproved. Measures to protect the
federally listed winter-run chinook salmon, for which the National
Marine Fisheries Service has jurisdiction under the Act, also may
affect the delta smelt and may require consultation with the Service.
Under section 4 of the Act, listing of the delta smelt provided a
requirement for the development of a recovery plan. The Service
convened the Delta Native Fishes Recovery Team to prepare a recovery
plan for declining native fishes in the Sacramento-San Joaquin Estuary.
The recovery plan will develop a framework for Federal, State, and
private entities to coordinate activities and cooperate with each other
in conservation efforts. The plan will set recovery priorities and
estimate the costs of various tasks necessary to accomplish recovery
goals. Site-specific management actions necessary to achieve survival
and recovery of the delta smelt and other fishes native to the Estuary
ecosystem also will be described in this plan.
Summary of Comments and Recommendations
During the 4-month comment period following publication of the
October 3, 1991 (56 FR 50075), proposed rule to list the delta smelt as
threatened and designate its critical habitat, the Service received 360
comments (i.e., letters and oral testimony) from 348 individuals. The
Service received several letters supporting designation of delta smelt
critical habitat as proposed. Many local government agencies, water
districts, business and trade associations, and other private interests
submitted comments regarding the presumed economic effects of the
proposed critical habitat designation on industries, planned
activities, and development in specific municipalities or geographic
regions of California.
On March 16, 1993 (58 FR 14199), the Service published a notice
that the public comment period on the proposed designation of critical
habitat for the delta smelt was reopened until April 30, 1993, to allow
the Service to consider any information that previously had not been
submitted. In response, the Service received seven letters: two in
support of critical habitat designation as proposed, four in
opposition, and a letter from EPA requesting that the Service consider
the biological and hydrological information described in EPA's draft
proposed rule to promulgate Bay/Delta water quality standards.
The proposed rule to designate critical habitat for the delta smelt
has been revised to reflect the best scientific information currently
available and to ensure that the Service coordinates its final actions
with other interested Federal agencies. For this reason, the Service
will address all comments previously received on the economic impacts,
legal requirements, and interpretation of various provisions of the Act
during preparation of a final rule. Additionally, comments received
during the 60-day comment period following publication of this revised
proposed rule will be used in preparing a final rule. Only comments
addressing the issue of available scientific information used to revise
this proposed rule are responded to in this document. In its final
determination on the designation of critical habitat, the Service will
provide a thorough discussion of all comments received in response to
the original proposed rule and to this revised proposed rule.
Comment: EPA requested that in its designation of critical habitat
the Service consider the scientific information described in EPA's
draft proposed rule to promulgate water quality standards for the Bay/
Delta.
Service Response: The Service has substantially revised the primary
constituent elements in this proposed rule to reflect more closely the
historical placement of low salinity estuarine habitat in Suisun Bay.
As part of the background for formulation of its proposed water quality
standards, EPA analyzed the number of days that low salinity (2 ppt)
water historically was located at the confluence of the Sacramento and
San Joaquin Rivers, Chipps Island, and Roe Island in Suisun Bay. The
Service has revised the primary constituent elements to include those
features that provide temporal and spatial variability of low salinity
waters that will deter further invasion of exotic species, produce high
zooplankton densities for food, and simulate natural processes and
historical conditions. The ``Primary Constituent Elements'' section of
this revised proposed rule describes in detail the months that each
delta smelt life stage requires protective habitat conditions. This
revised proposal refines the primary constituent elements to more
accurately replicate historical conditions that are needed to recover
the delta smelt.
Comment: One commenter stated that the Service does not have enough
scientific data to substantiate the conclusions that the location of
low salinity habitat in Suisun Bay is important to the recovery of the
delta smelt, that delta smelt are associated with the saltwater-
freshwater mixing zone, or that water exports could adversely affect
delta smelt critical habitat as currently proposed.
Service Response: Section 4(b)(B)(2) of the Act requires that
critical habitat designations be based on the best scientific data
available. As discussed in the ``Habitat Requirements'' and ``Primary
Constituent Elements'' sections of this rule, the best available
scientific evidence shows that when the entrapment zone is located in a
broad geographic area with extensive shallow-water habitat within the
euphotic zone, high densities of phytoplankton and zooplankton are
produced (Arthur and Ball 1978, 1979, 1980) and larval and juvenile
fish, including delta smelt, grow rapidly (Moyle et al. 1992, Sweetnam
and Stevens 1993). When the entrapment zone is contained within Suisun
Bay, young delta smelt are dispersed widely throughout a large expanse
of shallow-water and marsh habitat (Harry Seraydarian, EPA, in litt.,
1993). Dispersion in areas downstream from the State and Federal water
pumps and in-Delta agricultural diversions protects young smelt from
entrainment (diverted into man-made structures or impinged on screens)
and distributes them among the extensive, protective, and highly
productive shoal regions of Suisun Bay. In contrast, high exports cause
the entrapment zone to be pulled upstream into the deep river channels
(Moyle et al. 1992). The large river channels are smaller in total
surface area, contain fewer shoal areas, have swifter, more turbulent
water currents, and lack high zooplankton densities.
Because the Service seeks to coordinate its final actions with
other interested Federal agencies and because the Service also has
received new distributional information since the October 3, 1991,
proposal to designate critical habitat for the delta smelt, the Service
hereby revises the proposal to designate critical habitat. This
proposed rule revision is based on materials received during the public
comment period and information received during numerous meetings and
discussions with State and Federal agency biologists, ichthyologists,
engineers, and hydrologists. This new proposal supersedes the October
3, 1991, proposal.
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments are
particularly sought concerning:
(1) The reasons why any habitat (either existing or additional
areas) should or should not be determined to be critical habitat as
provided by section 4 of the Act;
(2) Current or planned activities and their possible impacts on
proposed critical habitat areas;
(3) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat;
(4) Economic values associated with benefits of designating
critical habitat for the delta smelt; and
(5) The methodology the Service might use, under section 4(b)(2) of
the Act, in determining whether the benefits of excluding an area from
critical habitat outweigh the benefits of specifying the area as
critical habitat. Because the primary constituent elements used in
determining which areas to propose as critical habitat for the delta
smelt were determined in coordination with EPA in preparation of its
proposed water quality standards, the Service also encourages the
public, other concerned governmental agencies, the scientific
community, industry, or any other interested party to provide comments
or suggestions to EPA on its proposed rule to promulgate Water Quality
Standards for Surface Waters of the Sacramento River, San Joaquin
River, and San Francisco Bay and Delta of the State of California. The
Fish and Wildlife Service will consider these comments also in
developing its final rule. EPA's proposed rule is published in this
same Federal Register separate part.
The Endangered Species Act provides for a public hearing on this
proposal, if requested. Requests must be received within 45 days of the
date of publication of this revised proposal in the Federal Register.
Such requests must be made in writing and should be sent to the Acting
Field Supervisor, Sacramento Field Office (see ADDRESSES section).
As stated previously, all comments that have been received during
the preceding public comment periods on the economic impacts, legal
requirements, and biological or ecological requirements or effects of
critical habitat designation will be considered during preparation of a
final rule. Additionally, comments received during the 60-day comment
period following publication of this revised proposed rule will be used
in preparing a final rule. The final decision on the designation of
critical habitat will take into consideration the comments and any
additional information received by the Service and will include any
exclusion determinations.
National Environmental Policy Act
The Service has determined that an Environmental Assessment and/or
an Environmental Impact Statement, as defined under the authority of
the National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Act. A notice outlining the Service's reasons for this determination
was published in the Federal Register on October 25, 1983 (48 FR
49244).
Regulatory Flexibility Act and Executive Order 12866
This proposed rule has been reviewed under Executive Order 12866.
The Department of the Interior has determined that the proposed rule
will not have a significant economic effect on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Based on the information discussed in this rule concerning
public projects and private activities within critical habitat areas,
significant economic impacts will not result from the critical habitat
designation. Also, no direct costs, enforcement costs, information
collection, or recordkeeping requirements are imposed on small entities
by this designation. Further, the rule contains no recordkeeping
requirements as defined by the Paperwork Reduction Act of 1980.
Takings Implications Assessment
The Service has analyzed the potential takings implications of
designating critical habitat for the delta smelt in a Takings
Implications Assessment prepared pursuant to requirements of Executive
Order 12630, ``Governmental Actions and Interference with
Constitutionally Protected Property Rights.'' The Takings Implications
Assessment concludes that the designation does not pose significant
takings implications.
References Cited
Arthur, J.F., and M.D. Ball. 1978. Entrapment of suspended materials
in the San Francisco Bay-Delta Estuary. U.S. Dept. Interior, Bureau
of Reclamation, Sacramento, California.
Arthur, J.F., and M.D. Ball. 1979. Factors influencing the
entrapment of suspended material in the San Francisco Bay-Delta
Estuary. Pages 143-174 in T.J. Conomos, editor. Pacific Division,
Amer. Assoc. Advance. Sci., San Francisco, California.
Arthur, J.F., and M.D. Ball. 1980. The significance of the
entrapment zone location to the phytoplankton standing crop in the
San Francisco Bay-Delta Estuary. U.S. Dept. Interior, Water and
Power Resources Service.
Erkkila, L.F., J.W. Moffet, O.B. Cope, B.R. Smith, and R.S. Smith.
1950. Sacramento-San Joaquin Delta fishery resources: Effects of
Tracy Pumping Plant and the Delta Cross Channel. U.S. Fish and
Wildlife Service Special Scientific Rept. 56:1-109.
Ganssle, D. 1966. Fishes and decapods of San Pablo and Suisun Bays.
Pages 64-94 in D.W. Kelley, editor. Ecological studies of the
Sacramento-San Joaquin estuary, Part 1. Calif. Dept. Fish and Game,
Fish Bulletin 133.
Goldman, C.R., and A.J. Horne. 1983. Limnology. McGraw-Hill Book
Company, New York, New York.
Monroe, M.W., and J. Kelly. 1992. State of the estuary: A report on
conditions and problems in the San Francisco Bay/Sacramento-San
Joaquin Delta Estuary. San Francisco Estuary Project, Oakland,
California.
Moyle, P.B. 1976. Inland Fishes of California. University of
California Press, Berkeley, California.
Moyle, P.B., B. Herbold, D.E. Stevens, and L.W. Miller. 1992. Life
history and status of delta smelt in the Sacramento-San Joaquin
Estuary, California. Trans. Amer. Fish. Soc. 121:67-77.
Nichols, F.H., J.E. Cloern, S.N. Luoma, and D.H. Peterson. 1986. The
modification of an estuary. Science 231:567-573.
Radtke, L.D. 1966. Distribution of smelt, juvenile sturgeon, and
starry flounder in the Sacramento-San Joaquin Delta with
observations on food of sturgeon. Pages 115-129 in J.L. Turner and
D.W. Kelley, editors. Ecological studies of the Sacramento-San
Joaquin Delta, Part 2. Calif. Dept. Fish and Game, Fish Bulletin
136.
Stevens, D.E., L.W. Miller, and B.C. Bolster. 1990. Report to the
Fish and Game Commission: A status review of the delta smelt
(Hypomesus transpacificus) in California. Calif. Dept. Fish and Game
Candidate Species Status Report 90-2.
Sweetnam, D.A., and D.E. Stevens. 1993. Report to the Fish and Game
Commission: A status review of the delta smelt (Hypomesus
transpacificus) in California. Calif. Dept. Fish and Game Candidate
Species Status Report 93-DS.
Wang, J.C.S. 1986. Fishes of the Sacramento-San Joaquin estuary and
adjacent waters, California: A guide to the early life histories.
Interagency Ecological Study Program for the Sacramento-San Joaquin
Estuary. Tech. Rept. 9.
Wang, J.C.S. 1991. Early life stages and early life history of the
delta smelt, Hypomesus transpacificus, in the Sacramento-San Joaquin
estuary, with comparison of early life stages of the longfin smelt,
Spirinchus thaleichthys. Interagency Ecological Studies Program for
the Sacramento-San Joaquin Estuary. Tech. Rept. 28.
Author
The primary author of this proposed rule is Nadine R. Kanim,
Sacramento Field Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulations Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
Sec. 17.11 [Amended]
2. Amend Sec. 17.11(h), in the entry in the table under FISHES for
``Smelt, delta,'' in the column under ``Critical habitat'' by revising
``NA'' to read ``17.95(e).''
3. Amend Sec. 17.95(e) by adding critical habitat of the delta
smelt in the same alphabetical order as the species occurs in
Sec. 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
(e) * * *
* * * * *
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Delta Smelt (Hypomesus transpacificus)
California: Areas of all water and all submerged lands below
ordinary high water and the entire water column bounded by and
contained in Suisun Bay (including the contiguous Grizzly and Honker
Bays); the length of Montezuma Slough; and the existing contiguous
waters contained within the Delta, as defined by section 12220, of
the State of California's Water Code of 1969 (a complex of bays,
dead-end sloughs, channels typically less than 4 meters deep,
marshlands, etc.) as follows:
Bounded by a line beginning at the Carquinez Bridge which
crosses the Carquinez Strait, thence northeasterly along the western
and northern shoreline of Suisun Bay, including Goodyear, Suisun,
Cutoff, First Mallard (Spring Branch), and Montezuma Sloughs; thence
upstream to the intersection of Montezuma Slough with the western
boundary of the Delta as delineated in section 12220 of the State of
California's Water Code of 1969; thence following the boundary and
including all contiguous water bodies contained within the statutory
definition of the Delta, to its intersection with the San Joaquin
River at its confluence with Suisun Bay; thence westerly along the
south shore of Suisun Bay to the Carquinez Bridge.
BILLING CODE 4310-55-P
TP06JA94.010
BILLING CODE 4310-55-C
Primary Constituent Elements: Physical habitat, water, river
flow, and salinity concentrations required to maintain delta smelt
habitat for spawning, larval and juvenile transport, rearing, and
adult migration.
Dated: December 10, 1993.
Richard N. Smith,
Acting Director, Fish and Wildlife Service.
[FR Doc. 94-90 Filed 1-5-94; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 94-65 Medicare Program; Revisions to the Definition of End-Stage Renal Disease and Resumption of Entitlement
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 714-717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-65]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Part 406
[BPD-738-P]
RIN: 0938-AG19
Medicare Program; Revisions to the Definition of End-Stage Renal
Disease and Resumption of Entitlement
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Proposed rule.
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SUMMARY: We propose to revise the definition of end-stage renal disease
to reflect that more than one dialysis treatment is required for there
to be a ``regular course of dialysis'' and to require that generally
accepted diagnostic criteria and laboratory findings must form the
basis of the physician's certification of end-stage renal disease. The
purpose of this proposed revision is to eliminate any misinterpretation
of the definition of end-stage renal disease. We propose to do so by
clarifying that only those individuals whose kidneys have failed and
for whom the disease is expected to be a lifelong affliction are
eligible for Medicare end-stage renal disease benefits.
We also propose to amend the regulations to specify that Medicare
entitlement is resumed for individuals who again begin a regular course
of renal dialysis treatments after a previous course is terminated
(with or without a transplant), and to add the same considerations for
those who have a second transplant. Therefore, the purpose of these
proposed revisions is to conform the regulations more closely to the
intent of sections 226A (c)(2) and (c)(3) of the Social Security Act
regarding resumption of entitlement to Medicare.
DATES: Comments will be considered if we receive them at the
appropriate address, as provided below, no later than 5 p.m. on March
7, 1994.
ADDRESSES: Mail comments to the following address:
Health Care Financing Administration, Department of Health and Human
Services, Attention: BPD-738-P, P.O. Box 26676, Baltimore, MD 21207.
If you prefer, you may deliver your written comments to one of the
following addresses:
Room 309-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW.,
Washington, DC. 20201, or
Room 132, East High Rise Building, 6325 Security Boulevard, Baltimore,
Maryland 21207.
Due to staffing and resource limitations, we cannot accept
facsimile (FAX) copies of comments. In commenting, please refer to file
code BPD-738-P. Comments received timely will be available for public
inspection as they are received, generally beginning approximately 3
weeks after publication of a document, in room 309-G of the
Department's offices at 200 Independence Avenue, SW., Washington, DC,
on Monday through Friday of each week from 8:30 a.m. to 5 p.m. (phone:
(202) 690-7890).
FOR FURTHER INFORMATION CONTACT: Denis Garrison, (410) 966-5643.
SUPPLEMENTARY INFORMATION:
I. Background
End-stage renal disease (ESRD) is a disease which occurs from the
destruction of normal kidney tissues over a long period of time. The
individual often does not experience any symptoms until the kidney has
lost more than half of its function. The loss of kidney function in
ESRD is usually irreversible and permanent.
A. Related Law and Regulations for Medicare Coverage of ESRD and the
Definition of ESRD
Section 226A(a)(2) of the Social Security Act (the Act) provides
for Medicare coverage for certain individuals who are medically
determined to have end-stage renal disease. Once an individual is
medically determined to have ESRD, section 226A(b) of the Act specifies
that one of two conditions must be met before entitlement begins. That
is, a regular course of dialysis must begin or a kidney transplant must
be performed. Section 226A(b)(1)(A) of the Act provides that
entitlement begins with the third month after the month in which a
regular course of renal dialysis is initiated.
The statute does not give a definition of ESRD; however, the
Medicare regulations in title 42 of the Code of Federal Regulations do
define the term. The definition of ESRD is given in two sections of the
regulations. For purposes of Medicare eligibility and entitlement, ESRD
is currently defined in Sec. 406.13(b) as that stage of kidney
impairment that appears irreversible and permanent and requires a
regular course of dialysis or kidney transplantation to maintain life.
A parallel definition of ESRD also appears in Sec. 405.2102 which
defines ESRD as it relates to the conditions for coverage that must be
met by suppliers furnishing ESRD care to Medicare beneficiaries.
B. Potential Misinterpretation of the Current ESRD Definition
In calendar year 1989, 21,200 individuals were certified by their
physicians as having an irreversible, permanent kidney impairment and
obtained Medicare entitlement solely because of this certification.
That is, they could not qualify for Medicare on any other basis, such
as age or disability status. In calendar year 1990, the number of
similar new beneficiaries was 22,800. Soon after obtaining Medicare
eligibility, nearly 1 percent of these individuals terminated their
course of dialysis with a return of kidney function. We are concerned
that the diagnosis and certification of ESRD for these individuals was
incorrect. The regulations in Secs. 405.2102 and 406.13(b) define ESRD
as a condition that appears irreversible and permanent; Medicare
entitlement on the basis of the patient's need for dialysis is usually
terminated only if the individual dies or receives a kidney transplant.
Any severe kidney condition (particularly acute kidney failure) may
appear to be irreversible and permanent if the diagnosis is based on
only limited tests and criteria. We believe that certifications for the
patients who terminated dialysis may have arisen from a
misunderstanding of the extent of the kidney failure which constitutes
ESRD for which the law grants Medicare entitlement. We believe that
specifying that the diagnosis must be based on generally accepted
diagnostic criteria and laboratory findings may result in not enrolling
in Medicare those patients whose renal disease is not ``end-stage''.
However, we do not wish to eliminate the word, ``appears,'' from the
regulation since the law recognizes that dialysis treatments may end in
some ESRD cases.
C. Related Laws and Regulations for Termination of Medicare Entitlement
and Resumption of Entitlement to ESRD Benefits
Section 226A(b)(2) of the Act specifies that Medicare entitlement
for individuals on the basis of ESRD terminates with the end of the
36th month after the month of transplant or with the end of the 12th
month after the last month of renal dialysis treatments. Section
226A(c)(2) and (c)(3) of the Act specifically provides for beginning a
new period of entitlement when a kidney transplant fails or a course of
renal dialysis begins again, whether during or after the 36 or 12
months, as applicable. Current regulations in Sec. 406.13(f) address
these situations by specifying that entitlement does not end as
scheduled if the treatment begins again during the applicable periods.
The regulations in Sec. 406.13(g) deal with resumption of entitlement
after termination of entitlement has occurred and require the
submission of a new application.
In addition, the provisions in section 226A(c)(2) and (c)(3) of the
Act ensure that resumption of entitlement to Medicare will begin
without the 3-month waiting period that usually applies in cases when
Medicare entitlement is sought on the basis of dialysis (except for
certain cases involving self-care training).
II. Provisions of the Proposed Regulations
A. Proposed Revision to ESRD Definition
We analyzed the payment records of patients who terminated dialysis
shortly after becoming eligible for Medicare based on a diagnosis of
ESRD. Our records indicate an annual mean cost per patient of
approximately $8,000, which is significantly below the average annual
cost of $40,000 for a patient who remains on dialysis. Because these
individuals were able to discontinue dialysis shortly after beginning a
course of treatment and incurred only limited medical costs, we believe
that many of these patients may have been incorrectly certified as
having ESRD as a result of physicians misinterpreting the ESRD
definition as it appears in Sec. 406.13(b). We also find the current
ESRD definition (Sec. 406.13(b)) inadequate for Medicare Part A
(hospital insurance) eligibility and entitlement purposes because
entitlement to Medicare based on ESRD depends on the existence of ESRD,
not on the sole fact that dialysis treatments are being given.
Therefore, in order to eliminate any possible misinterpretation, we
propose to revise the definition of ESRD in Sec. 406.13(b). After the
phrase ``* * * a regular course of dialysis'', we propose to add the
word ``treatments''. This revision would clarify that more than one
dialysis treatment is required for there to be a regular course of
dialysis.
We also propose to add to the end of the definition of ESRD, the
phrase ``as evidenced by generally accepted diagnostic criteria and
laboratory findings''. We believe that requiring generally accepted
diagnostic criteria and laboratory findings as the basis for diagnosis
of ESRD serves as a reminder to physicians that they must have medical
evidence to substantiate their certification of ESRD. We do not believe
this addition to the definition would have a substantial effect on most
physicians since they already depend on such medical information.
We do not believe it is necessary to add the word ``treatments'' or
the phrase ``as evidenced by generally accepted diagnostic criteria and
laboratory findings'' to the definition of ESRD in Sec. 405.2102, which
defines ESRD as it relates to the conditions for coverage of suppliers
of ESRD services. This is because that section does not establish who
is eligible or entitled to Medicare ESRD benefits, which is the purpose
of this proposed rule.
B. Proposed Revisions to the Termination of Entitlement and to the
Resumption of Entitlement
Section 226A(c)(2) and (c)(3) of the Act specifies the conditions
for beginning a new period of entitlement when a kidney transplant
fails or a regular course of dialysis begins again. However, this
section refers to those instances when entitlement has not yet ended
and specifies that Part A entitlement ``begins'' (although it may not
yet have ended) with the month when regular dialysis treatments begin
again. The importance of ``beginning'' Part A entitlement is that it
offers the opportunity for those who do not have Part B (Supplementary
Medical Insurance) entitlement to enroll in Part B without waiting for
the annual general enrollment period (January through March).
Supplementary Medical Insurance is a voluntary program available to
most individuals age 65 or over and to disabled individuals who are
under age 65 and entitled to Medicare Part A. In addition, since Part A
entitlement has not ended, we believe that the intention is to re-
enroll the individual in Part A with that month, without a new
application.
Therefore, we propose to treat the situation where dialysis or
transplant recurs during the 12-month or 36-month periods as a
resumption of entitlement. Accordingly, we delete from Sec. 406.13(f)
the reference to continuation of entitlement, and instead revise
Sec. 406.13(g), which specifies the conditions for resumption of
entitlement, to include this situation where coverage resumes despite a
previous course of treatment.
We propose to revise Sec. 406.13(g) to state that entitlement would
be resumed under any one of three conditions. Using the language we
propose to remove from paragraph (f), a new period of entitlement would
begin if an individual initiates a regular course of renal dialysis
during the 12-month period after the previous course of dialysis ended,
and he or she would be entitled to resume Part A benefits and eligible
to enroll in Part B benefits effective with the month the regular
course of dialysis is resumed.
The statute does not mention the beginning of a new period of
entitlement when a second kidney transplant occurs during the 36-month
period following the initial transplant, since there is never a waiting
period for entitlement based on a transplant. However, we believe that,
by analogy, the provisions for beginning a new period of entitlement in
cases where a regular course of dialysis begins or recurs during the 36
months indicate that we should construe the law as requiring resumption
of entitlement and a new period of Part B enrollment in cases of re-
transplantation that occur without the beneficiary's resuming (or
initiating) dialysis treatments. We, therefore, propose to revise
Sec. 406.13(g) to state that entitlement would begin when an individual
initiates a new, regular course of renal dialysis, or has a kidney
transplant, during the 36-month period after an earlier kidney
transplant, and that he or she would be entitled to resume Part A
benefits and eligible to enroll in Part B benefits effective with the
month the regular course of dialysis begins or with the month the
subsequent kidney transplant occurs.
We also propose to make technical revisions to Sec. 406.13(g) to
clarify the other condition for resumption of entitlement. That is,
entitlement is resumed if an individual initiates a regular course of
renal dialysis more than 12 months after the previous regular course of
dialysis ended or more than 36 months after the month of a kidney
transplant, and the individual is eligible to enroll in Part A and Part
B benefits effective with the month in which the regular course of
dialysis treatment is resumed. If he or she is otherwise entitled to
Part A benefits under the conditions specified in Sec. 406.13(c), and
files an application, entitlement would begin with the month in which
dialysis treatments are initiated or resumed, without a waiting period,
subject to the basic limitations of entitlement in Sec. 406.13(e)(1).
C. Proposed Revisions' Effect on Medicare Part B
The revised definition of ESRD in Sec. 406.13(b) and revisions to
resumption of entitlement in Sec. 406.13(g) would also be used as the
basis for eligibility for Medicare Part B. This is because, in
accordance with Sec. 407.10(a)(1), an individual who qualifies for
Medicare Part A on the basis of ESRD is also eligible for Medicare Part
B.
D. Manuals Affected
When we publish these proposed requirements as a final rule, the
Social Security Program Operations Manual System, Part 6, ``HI''; the
Medicare Part A Intermediary Manual, Part 3, ``Claims Processing''; the
Medicare Part B Carriers Manual, Part 3, ``Claims Processing''; and the
Medicare Renal Dialysis Facilities Manual, would be revised to reflect
the changes made to the definition of ESRD and the resumption of
entitlement.
III. Collection of Information Requirements
This rule contains no information collection requirements.
Consequently, this rule need not be reviewed by the Office of
Management and Budget under the authority of the Paperwork Reduction
Act of 1980 (44 U.S.C. 3501 et seq.).
IV. Response to Comments
Because of the large number of items of correspondence we normally
receive on a proposed rule, we are not able to acknowledge or respond
to them individually. However, we will consider all comments that we
receive by the date and time specified in the ``Dates'' section of this
preamble, and if we proceed with the final rule, we will respond to the
comments in the preamble to the final rule.
V. Regulatory Impact Statement
In calendar year 1989, over 21,200 individuals were certified by
their physicians as having an irreversible, permanent kidney
impairment, and obtained Medicare entitlement solely on the basis of
this certification. In 1990, that number was 22,800. As reported in the
National Institute of Diabetes and Digestive and Kidney Disease's U.S.
Renal Data System Annual Data Report, approximately 1 percent of
individuals receiving dialysis treatments during these years were able
to terminate their course of dialysis treatment because kidney function
returned. This figure is consistent with data that we maintain on the
number of individuals whose Medicare eligibility terminated.
We analyzed the Medicare payment records of beneficiaries whose
sole reason for Medicare entitlement was ESRD, and who discontinued
dialysis (and thus, Medicare eligibility) within 2 years after
enrollment. Our records indicate that 70 percent of the individuals
incurred annual costs of less than $10,000, with an annual mean cost
per beneficiary to the Medicare program of approximately $8,000. This
is significantly below the average annual cost to the Medicare program
of $40,000 for a patient receiving regular dialysis treatments. Because
these beneficiaries were able to discontinue dialysis after incurring
only limited medical costs, we believe that most of these patients may
have been incorrectly certified as having ESRD, which requires long-
term maintenance dialysis or a kidney transplant. Although the number
of individuals who may have been incorrectly certified was less than
250 per year, they accounted for nearly $2 million in annual Medicare
program expenditures. These expenditures were unintended because the
disease did not reach ``end-stage'' in these individuals. As a result
of this proposed revision, we estimate the projected savings to the
Medicare program for the next 5 calendar years to be as follows:
[Millions of Dollars]
------------------------------------------------------------------------
1994 1995 1996 1997 1998
------------------------------------------------------------------------
2.8.......... 3.1 3.4 3.8 4.2
------------------------------------------------------------------------
With regard to the portion of this proposed rule concerning
resumption or continuation of entitlement after a terminating event, we
have no reason to believe, based on 13 years' experience, that more
than one or two people would have had their entitlement resumed earlier
under the proposed revised regulation relating to that issue.
We generally prepare a regulatory flexibility analysis that is
consistent with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
through 612) unless the Secretary certifies that a proposed rule would
not have a significant economic impact on a substantial number of small
entities. For purposes of the RFA, we consider all physicians and
dialysis facilities to be small entities.
Also, section 1102(b) of the Act requires the Secretary to prepare
a regulatory impact analysis if a proposed rule may have a significant
impact on the operations of a substantial number of small rural
hospitals. This analysis must conform to the provisions of section 603
of the RFA. For purposes of section 1102(b) of the Act, we define a
small rural hospital as a hospital that is located outside of a
Metropolitan Statistical Area and has fewer than 50 beds.
No additional time burden or monetary requirements would be placed
on physicians or dialysis facilities in order to comply with the
provisions of this proposed rule since physicians should already have
appropriate laboratory findings and generally accepted diagnostic
criteria to confirm a diagnosis of ESRD.
In addition, changes in the resumption of entitlement regulations
would have no effect on physicians or on dialysis facilities.
For the reasons stated above, we have determined, and the Secretary
certifies, that this proposed rule would not result in a significant
economic impact on a substantial number of small entities or on the
operations of a substantial number of small rural hospitals. We are,
therefore, not preparing analyses for either the RFA or section 1102(b)
of the Act.
List of Subjects in 42 CFR Part 406
Health facilities, Kidney diseases, Medicare.
42 CFR chapter IV, part 406 is amended as follows:
PART 406--HOSPITAL INSURANCE ELIGIBILITY AND ENTITLEMENT
1. The authority citation for part 406 continues to read as
follows:
Authority: Secs. 202(t), 202(u), 226, 226A, 1102, 1818, and 1871
of the Social Security Act (42 U.S.C. 402(t), 402(u), 426, 426-1,
1302, 1395i-2, and 1395hh), and 3103 of Public Law 89-97 (42 U.S.C.
426a) unless otherwise noted.
2. In Sec. 406.13, the heading and introductory language in
paragraph (b) is republished, the definition of ``End-stage renal
disease'' in paragraph (b) is revised, and paragraphs (f) and (g) are
revised to read as follows:
Sec. 406.13 Individual who has end-stage renal disease.
* * * * *
(b) Definitions. As used in this section:
End-stage renal disease (ESRD) means that stage of kidney
impairment that appears irreversible and permanent and requires a
regular course of dialysis treatments or kidney transplantation to
maintain life, as evidenced by generally accepted diagnostic criteria
and laboratory findings.
* * * * *
(f) End of entitlement. Entitlement ends with--
(1) The end of the 12th month after the month in which a regular
course of dialysis ends; or
(2) The end of the 36th month after the month in which the
individual has received a kidney transplant.
(g) Resumption of entitlement. Entitlement is resumed under the
following conditions:
(1) An individual who initiates a regular course of renal dialysis
during the 12-month period after the previous course of dialysis ended
is entitled to Part A benefits and eligible to enroll in Part B with
the month the regular course of dialysis is resumed.
(2) An individual who initiates a regular course of renal dialysis,
or has a kidney transplant, during the 36-month period after an earlier
kidney transplant is entitled to Part A benefits and eligible to enroll
in Part B with the month the regular course of dialysis begins or with
the month the subsequent kidney transplant occurs.
(3) An individual who initiates a regular course of renal dialysis
more than 12 months after the previous course of regular dialysis ended
or more than 36 months after the month of a kidney transplant is
eligible to enroll in Part A and Part B with the month in which the
regular course of dialysis is resumed. If he or she is otherwise
entitled under the conditions specified in paragraph (c) of this
section, including the filing of an application, entitlement begins
with the month in which dialysis is initiated or resumed, without a
waiting period, subject to the limitations of paragraph (e)(1) of this
section.
(Catalog of Federal Domestic Assistance Program No. 93.773,
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
Dated: June 4, 1993.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
Approved: October 4, 1993.
Donna E. Shalala,
Secretary.
[FR Doc. 94-65 Filed 1-5-94; 8:45 am]
BILLING CODE 4120-01-P
Complete official Federal Register PDF
FR Doc. 94-265 Vessel Rebuild Standards
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 725-726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-265]
[[Page Unknown]]
[Federal Register: January 6, 1994]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Part 67
[CGD 93-063]
Vessel Rebuild Standards
AGENCY: Coast Guard, DOT.
ACTION: Notice of meeting.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is considering whether to undertake rulemaking
to develop standards for vessel rebuild determinations. In order to
help it determine whether rulemaking is needed and the scope of the
issues involved, the Coast Guard conducted a public meeting on November
16, 1993. At the meeting, attendees discussed problems encountered
under existing procedures and possible solutions, and whether use of a
negotiated rulemaking would be appropriate. The meeting attendees
requested that the Coast Guard conduct a second meeting to further
discuss the issues. This notice announces the date, time, and place of
the second meeting.
DATES: 1. The meeting will be held on February 15, 1994, beginning at 9
a.m. and concluding at 3 p.m. or earlier if discussion is concluded.
2. All comments should be received by the Coast Guard on or before
January 31, 1994.
ADDRESSES: 1. The meeting will be held in room 4400, DOT Headquarters
(Nassif Building), 400 Seventh Street, SW., Washington, DC 20590.
2. All written material should be submitted to the Coast Guard at:
Vessel Documentation and Tonnage Survey Branch, room 1312, 2100 Second
Street, SW., Washington, DC 20593-0001.
FOR FURTHER INFORMATION CONTACT:
Ms. Laura Burley, Vessel Documentation and Tonnage Survey Branch at
(202) 267-1492.
SUPPLEMENTARY INFORMATION: Under section 27 of the Merchant Marine Act,
1920 (46 U.S.C. app. 883), a vessel entitled to engage in the coastwise
trade by virtue of having been built in the United States which is
later rebuilt outside the United States, loses its eligibility to
engage in the coastwise trade. Under 46 U.S.C. 12106, a vessel not
eligible for the coastwise trade cannot receive a Great Lakes
endorsement on its Certificate of Documentation. In addition, under 46
U.S.C. 12108, a fishing vessel which has been rebuilt outside the
United States and which does not qualify for the rebuild savings
provision of the Commercial Fishing Industry Vessel Anti-Reflagging Act
of 1987, is not eligible for a fishery endorsement on its Certificate
of Documentation.
Effective January 1, 1994, the Coast Guard's regulatory standard
for rebuild determinations will be found in 46 CFR Sec. 67.177. (See
final rule published in the Federal Register issue of Monday, November
15, 1993, page 60256.) In accordance with that standard, a vessel is
rebuilt when ``any considerable part of its hull or superstructure is
built upon or is substantially altered.'' A determination that a vessel
has been rebuilt, if the rebuilding was done outside the U.S., results
in a permanent loss of the eligibility of the vessel to engage in the
restricted trades, with a commensurate loss in value. At the present
time none of the problematic terms contained in the regulatory standard
are defined. As a result, the Coast Guard frequently receives requests
for advisory opinions that certain work to be performed on a vessel
does not constitute a rebuilding. In support of a request for a rebuild
determination, the submitter will generally enclose extensive
documentation addressing the character and scope of the work to be
performed including plans, drawings, contracts, work orders, and
materials lists. Then the submitter will attempt to show that the work
will not build upon or ``substantially'' alter ``any considerable
part'' of the vessel's hull or superstructure. Often, the submitter
will make comparisons between the before and after area of the hull and
superstructure; the weight and area of steel plate to be replaced or
added; or the comparative cost of the planned work to the value of the
vessel. Unfortunately, the vessel representative sometimes does not
submit any documentation until after the work is performed only to have
the Coast Guard determine that the vessel has been rebuilt, with the
disastrous consequence of loss of trading entitlements. In other cases,
the work actually done on the vessel differs from or exceeds the
planned work, with possible adverse effects on the final determination.
The Coast Guard is considering initiating rulemaking to develop
standards for determining when work on a vessel constitutes a
rebuilding and to define the terms involved in rebuild determinations.
However, to assist it to determine the scope of the issues involved in
the project and to receive suggested definitions and standards for
consideration, the Coast Guard conducted a public meeting before
proceeding with the rulemaking process. At the meeting held on November
16, 1993, the attendees requested time to consider the information and
ideas shared at the meeting and the opportunity to submit written
materials to the Coast Guard. In addition, the attendees requested that
the Coast Guard schedule a second meeting to further discuss the issues
involved, including whether the use of negotiated rulemaking would be
appropriate. The Coast Guard agreed.
In order to have sufficient time to review written submissions
prior to the meeting, all materials should be received by the Coast
Guard on or before January 31, 1994. Attendees are encouraged to share
written submissions with other attendees. An attendance list with
addresses for this purpose may be obtained by contacting the person
identified in FOR FURTHER INFORMATION CONTACT in this notice.
The meeting is open to the public and will begin at 9 a.m. on
February 15, 1994, at: DOT Headquarters (Nassif Building), room 4400,
400 Seventh Street, SW., Washington, DC 20590.
Dated: December 29, 1993.
R.C. North,
Captain, U.S. Coast Guard, Acting Chief, Office of Marine Safety,
Security and Environmental Protection.
[FR Doc. 94-265 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 94-253 Iowa Electric Light and Power Co.; Issuance of Environmental Assessment and Finding of No Significant Impact
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 786-787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-253]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 50-331]
Iowa Electric Light and Power Co.; Issuance of Environmental
Assessment and Finding of No Significant Impact
The U.S. Nuclear Regulatory Commission (the Commission) is
considering issuance of an amendment to Facility Operating License No.
DPR-49, issued to Iowa Electric Light and Power Company (the licensee),
for operation of the Duane Arnold Energy Center (DAEC), located in Linn
County, Iowa.
Identification of Proposed Action
The amendment would consist of a change to the Operating License
that would increase the storage capacity of the spent fuel pool to 3152
fuel assemblies, including a rack which can be used for temporary
storage of 323 fuel assemblies.
The amendment to the TS is responsive to the licensee's application
dated March 26, 1993, and supplemented by additional correspondence
dated September 15 and November 23, 1993. The NRC staff has prepared an
Environmental Assessment of the proposed action.
Summary of Environmental Assessment
The ``Final Generic Environmental Impact Statement (FGEIS) on
Handling and Storage of Spent Light Water Power Reactor Fuel'' (NUREG-
0575), Volumes 1-3 (1979), concluded that the environmental impact of
interim storage of spent fuel was negligible and the cost of the
various alternatives reflects the advantage of continued generation of
nuclear power with the accompanying spent fuel storage. Because of the
differences in design, the FGEIS recommended evaluating spent fuel pool
expansions on a case-by-case basis. For DAEC, the expansion of the
storage capacity of the spent fuel pool will not create any significant
additional radiological effects or nonradiological environmental
impacts beyond those assessed in the Commission's Final Environmental
Statement (FES) issued in March 1973 related to the operation of DAEC,
and in the Safety Evaluation Report issued July 7, 1978, in support of
a previous license amendment concerning storage capacity.
The occupational radiation dose for the proposed operation of the
expanded spent fuel pool is estimated to be less than 2 percent of the
total annual occupational radiation exposure for this facility.
Finding of No Significant Impact
The staff has reviewed the proposed spent fuel pool expansion to
the facility relative to the requirements set forth in 10 CFR part 51.
Based on this assessment, the staff concludes that there are no
significant radiological or nonradiological impacts associated with the
proposed action and that the issuance of the proposed amendment to the
license will have no significant impact on the quality of the human
environment. Therefore, pursuant to 10 CFR 51.31, no environmental
impact statement needs to be prepared for this action.
For further details with respect to this action see
(1) The application for amendment dated March 26, 1993, and
supplemental correspondence dated September 15 and November 23, 1993,
(2) The FGEIS on Handling and Storage of Spent Light Water Power
Reactor Fuel (NUREG-0575),
(3) The FES for DAEC dated March 1973 and
(4) The Environmental Assessment dated December 29, 1993.
These documents are available for public inspection at the
Commission's Public Document Room, 2120 L Street, NW., Washington, DC
20555 and at the Cedar Rapids Public Library, 500 First Street, SE.,
Cedar Rapids, Iowa 52401.
Dated at Rockville, Maryland, this 29th day of December 1993.
Robert M. Pulsifer,
Project Manager, Project Directorate III-3, Division of Reactor
Projects III/IV/V, Office of Nuclear Reactor Regulation.
[FR Doc. 94-253 Filed 1-5-94; 8:45 am]
BILLING CODE 7590-01-M
Complete official Federal Register PDF
FR Doc. 94-249 Special Conditions; Rolls-Royce Model(s) RB211-Trent-875-17/-877- 17/-884-17 Turbofan Engines
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 706-707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-249]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 33
[Docket No. 93-ANE-67; Notice No. 33-ANE-06]
Special Conditions; Rolls-Royce Model(s) RB211-Trent-875-17/-877-
17/-884-17 Turbofan Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed special conditions.
-----------------------------------------------------------------------
SUMMARY: This notice proposes special conditions for the Rolls-Royce
Aircraft Engines Model(s) RB211-Trent-875-17/-877-17/-884-17 Turbofan
Engines. The applicable regulations do not contain adequate or
appropriate safety standards for the protection of these systems from
water and hail ingestion. This notice proposes the additional safety
standards which the Administrator considers necessary to establish a
level of safety equivalent to that established by the airworthiness
standards of part 33 of the Federal Aviation Regulations (FAR).
DATES: Comments must be submitted on or before February 22, 1994.
ADDRESSES: Comments on this proposal may be submitted in triplicate to:
Federal Aviation Administration (FAA), New England Region, Office of
the Assistant Chief Counsel, Attn: Rules Docket No. 93-ANE-67, 12 New
England Executive Park, Burlington, Massachusetts 01803-5299. Comments
must be marked: Docket No. 93-ANE-67. Comments may be inspected at this
location between 8 a.m. and 4:30 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Thomas Boudreau, Engine and Propeller Standards Staff, ANE-110, Engine
and Propeller Directorate, Aircraft Certification Service, FAA, New
England Region, 12 New England Executive Park, Burlington,
Massachusetts 01803-5229; telephone (617) 238-7117; fax (617) 238-7199.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed special conditions by submitting such written data, views, or
arguments as they may desire. Communications should identify the Rules
Docket number and be submitted in triplicate to the address specified
under ADDRESSES. All communications received on or before the closing
date for comments, specified under DATES, will be considered by the
Administrator before taking action on the proposal. The proposal
contained in this notice may be changed in light of the comments
received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed special
conditions. All comments submitted will be available in the Rules
Docket for examination by interested persons, both before and after the
closing date for comments. A report summarizing each substantive public
contact with FAA personnel concerning this proposal will be filed in
the docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit with those comments a
self-addressed, stamped postcard on which the following statement is
made: ``Comments to Docket No. 93-ANE-67.'' The postcard will be date
stamped and returned to the commenter.
Background
On August 4, 1992, Rolls-Royce applied for type certification of
Model(s) RB211-Trent-870-17/-877-17/-884-17 turbofan engines. The
application for type certification of the Model RB211-Trent-870-17
turbofan engine was withdrawn and a new application for type
certification of the Model RB211-Trent-875-17 was made on April 6,
1993. The FAA has determined that the current water and hail ingestion
requirements of Sec. 33.77(c) of the FAR do not represent the inclement
weather threat encountered in service.
A study of in-service inclement weather events has indicated a need
to modify the water and hail ingestion requirements of this section to
ensure design integrity and demonstrate an adequate level of safety.
This study indicated that a potential flight safety threat existed for
engines when operating in severe weather environments. Although current
requirements provide adequate validation of the engine's resistance to
mechanical damage due to hail impact and case contractions from water
ingestion, the study showed that the current standards did not
adequately address engine power loss anomalies, such as rollback and
flameout at lower than take off rated power settings.
The FAA has concluded that additional safety standards must be
applied to Rolls-Royce Model(s) RB211-Trent-875-17/-877-17/-884-17
turbofan engines to demonstrate that they are capable of acceptable
operation in severe weather environments.
Type Certification Basis
Under the provisions of Sec. 21.101 of the FAR, Rolls-Royce must
show that Model(s) RB211-Trent-875-17/-877-17/-884-17 turbofan engines
meet the requirements of the applicable regulations in effect on the
date of the application. Those Federal Aviation Regulations are
Sec. 21.21 and Part 33, effective February 1, 1965, as amended through
August 10, 1990, Amendment 33-14.
The Administrator finds that the applicable airworthiness
regulations in part 33, as amended, do not contain adequate or
appropriate safety standards for Rolls-Royce Model(s) RB211-Trent-875-
17/-877-17/-884-17 turbofan engines because of unique design criteria.
Therefore, the Administrator proposes these special conditions under
the provisions of Sec. 21.16 to establish a level of safety equivalent
to that established in the regulations.
Special conditions, as appropriate, are issued in accordance with
Sec. 11.49 of the FAR after public notice and opportunity for comment,
as required by Sec. Sec. 11.28 and 11.29(b), and become part of the
type certification basis in accordance with Sec. 21.101(b)(2).
Conclusion
This action affects only Rolls-Royce Model(s) RB211-Trent-875-17/-
877-17/-884-17 turbofan engines. It is not a rule of general
applicability and affects only the manufacturer who applied to the FAA
for approval of these new design criteria on the engine.
List of Subjects in 14 CFR Part 33
Air transportation, Aircraft, Aviation safety, Safety.
The authority citation for these special conditions continues to
read as follows:
Authority: 49 U.S.C. App. 1354(a), 1421, 1423; and 49 U.S.C.
106(g).
The Proposed Special Conditions
Accordingly, the Federal Aviation Administration (FAA) proposes the
following special conditions as part of the type certification basis
for the Rolls-Royce Model(s) RB211-Trent-875-17/-877-17/-884-17
turbofan engines.
In addition to the requirements of FAR Sec. 33.77, the following
tests and analyses must be conducted, unless compliance can be shown by
alternate methods acceptable to the Administrator.
(a) The most critical operating point(s) for water and hail
ingestion must be determined by test, analysis, or other acceptable
methods, and must be based on the threat levels defined in Table 1 and
Table 2 of this proposal. The critical point(s) determination must
address the entire operating envelope of the engine. The critical
operating point(s) is defined as those operating conditions within the
engine flight envelope at which an engine operability margin is reduced
to a minimum level.
Table 1.--Rain Threat
------------------------------------------------------------------------
Liqud
water
content
(LWC)
Altitude (feet) (grams
water per
cubic
water
air)
------------------------------------------------------------------------
0............................................................ 20.0
20,000....................................................... 20.0
26,300....................................................... 15.2
32,700....................................................... 10.8
39,300....................................................... 7.7
46,000....................................................... 5.2
------------------------------------------------------------------------
Note: LWC and HWC values at other altitudes may be determined by linear
interpolation.
Table 2.--Hail Threat
------------------------------------------------------------------------
Hail
Water
Content
(HWC)
Altitude (feet) (grams
water per
cubic
meter
air)
------------------------------------------------------------------------
0............................................................ 8.9
7,300........................................................ 8.9
8,500........................................................ 9.4
10,000....................................................... 9.8
11,000....................................................... 9.9
12,000....................................................... 10.0
15,000....................................................... 10.0
16,000....................................................... 8.9
17,700....................................................... 7.8
19,300....................................................... 6.6
21,500....................................................... 5.6
24,300....................................................... 4.4
29,000....................................................... 3.3
46,000....................................................... 3.3
------------------------------------------------------------------------
Note: LWC and HWC values at other altitudes may be determined by linear
interpolation.
(b) The engine will be shown to operate at an acceptable level for
a minimum of three minutes when subjected to the critical point
conditions for water ingestion. The percentage of water to airflow by
weight, at the critical point, is to be reproduced during the engine
test. The test method should adequately model the inflight water
concentration effect at the primary flow (core) inlet. Water droplet
size and velocity distributions must be representative of the critical
water ingestion point. All variable systems, whose position could
effect engine operation during water ingestion, must be scheduled for
the most critical positions.
(c) The engine will be shown to operate at an acceptable level for
a minimum of 30 seconds when subjected to the critical point conditions
for hail ingestion. The percentage of hail to airflow by weight, at the
critical point, is to be reproduced during the engine test. The test
should adequately model the inflight hail concentration effect at the
primary flow (core) inlet. Hailstone size and velocity distributions
must be representative of the critical hail ingestion point. All
variable systems whose position could effect engine operation during
hail ingestion, must be scheduled for the most critical positions.
(d) Acceptable engine operation, as noted in paragraphs (b) and (c)
of this special condition, must preclude rundown, flameout, surge, loss
of acceleration capability, limit exceedance, or any other engine
anomaly which would negatively affect the operability of the engine.
(e) The engine, as operated under the conditions defined in
paragraphs (b) and (c) of this special condition, must show that it
will operate acceptably if exposed to other probable factors associated
with normal operations. These other probable factors include, but are
not limited to, performance losses, installation effects, inlet
distortion, and throttle transients.
Issued in Burlington, Massachusetts, on December 29, 1993.
Jay J. Pardee,
Acting Manager, Engine and propeller Directorate, Aircraft
Certification Service.
[FR Doc. 94-249 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 94-245 Proposed Establishment of Class E Airspace; Oconto, WI
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 706-707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-245]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 93-AGL-26]
Proposed Establishment of Class E Airspace; Oconto, WI
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This notice proposes to establish Class E airspace (Class E
airspace areas extending upward from 700 feet or more above the surface
of the earth) at Oconto Municipal Airport, Oconto, WI, to accommodate
Nondirectional Beacon (NDB) Runway 29 Standard Instrument Approach
Procedure (SIAP). Controlled airspace extending upward from 700 to 1200
feet above ground level (AGL) is needed to contain aircraft executing
the approach. The intended effect of this proposal is to provide
segregation of aircraft using instrument approach procedures in
instrument conditions from other aircraft operating in visual weather
conditions.
DATES: Comments must be received on or before February 8, 1994.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Office of the Assistant Chief Counsel, AGL-7,
Rules Docket No. 93-AGL-26, 2300 East Devon Avenue, Des Plaines,
Illinois 60018.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Federal Aviation Administration, 2300 East Devon Avenue,
Des Plaines, Illinois. An informal docket may also be examined during
normal business hours at the Air Traffic Division, System Management
Branch, Federal Aviation Administration, 2300 East Devon Avenue, Des
Plaines, Illinois.
FOR FURTHER INFORMATION CONTACT: Robert Frink, Air Traffic Division,
System Management Branch, AGL-530, Federal Aviation Administration,
2300 East Devon Avenue, Des Plaines, Illinois 60018, telephone (708)
294-7568.
SUPPLEMENTARY INFORMATION
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed below. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 93-
AGL-26.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket, FAA, Great Lakes Region, Office of
the Assistant Chief Counsel, 2300 East Devon Avenue, Des Plaines,
Illinois, both before and after the closing date for comments. A report
summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of the Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-220,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-3485. Communications must identify the notice number of this NPRM.
Persons interested in being placed on a mailing list for future NPRM's
should also request a copy of Advisory Counsel No. 11-2A, which
describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to establish Class E airspace to
Oconto Municipal Airport, Oconto, WI, to accommodate NDB Runway 29
SIAP. Controlled airspace extending from 700 to 1200 feet AGL is needed
to contain aircraft executing the approach. The intended effect of this
action is to provide segregation of aircraft using instrument approach
procedures in instrument conditions from other aircraft operating in
visual weather conditions. Aeronautical maps and charts would reflect
the defined area which would enable pilots to circumnavigate the area
in order to comply with applicable visual flight rules requirements.
The coordinates for this airspace docket are based on North
American Datum 83. Class E airspace designations are published in
Paragraph 6005 of FAA Order 7400.9A dated June 17, 1993, and effective
September 16, 1993, which is incorporated by reference in 14 CFR 71.1
(58 FR 36298; July 6, 1993). The Class E airspace designation listed in
this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. app. 1348(a), 1354(a), 1510; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g); 14 CFR
11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9A, Airspace Designations and
Reporting Points, dated June 17, 1993, and effective September 16,
1993, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
AGL WI E5 Oconto, WI [New]
Oconto Municipal Airport, WI
(lat. 44 deg.52'24.897''N, long. 87 deg.54'32.589''W)
That airspace extending upward from 700 feet above the surface
within a 6.3-mile radius of the Oconto Municipal Airport and within
2.475 miles each side of the 118-degree bearing from the NDB
extending from the 6.3-mile radius to 7 miles southeast of the
airport.
* * * * *
Issued in Des Plaines, Illinois, on December 20, 1993.
John P. Cuprisin,
Manager, Air Traffic Division.
[FR Doc. 94-245 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 94-211 Radio Broadcast Services; Limitations on Commercial Time on Television Broadcast Stations
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Page 726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-211]
[[Page Unknown]]
[Federal Register: January 6, 1994]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-254, DA 93-1576]
Radio Broadcast Services; Limitations on Commercial Time on
Television Broadcast Stations
AGENCY: Federal Communications Commission.
ACTION: Proposed rule; extension of reply comment period.
-----------------------------------------------------------------------
SUMMARY: This action, in response to a request indicating good cause to
extend the reply comment period filed by the Center for the Study of
Commercialism, the Center for Media Education, the Consumer Federation
of America, and the Office of Communication of the United Church for
Christ, extends the deadline for filing reply comments in the Notice of
Inquiry in the above-cited docket. The Notice solicited comments on
whether the public interest would be served by establishing limits on
the amount of commercial matter broadcast by television stations. The
Commission adopted the Notice on its own motion. Comments were due by
December 20, 1993. The deadline for reply comments was originally
January 5, 1994, and is extended until February 4, 1994.
DATES: Reply comments are now due by February 4, 1994.
ADDRESSES: Federal Communications Commission, 1919 M Street NW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
Paul R. Gordon, Mass Media Bureau, Video Services Division, (202) 632-
6357.
SUPPLEMENTARY INFORMATION:
Order
Adopted: December 29, 1993
Released: December 29, 1993
Reply Comment Date: February 4, 1994
By the Chief, Mass Media Bureau
1. This action extends the deadline for filing reply comments in
response to the Notice of Inquiry in MM Docket No. 93-254, 8 FCC Rcd
7277 (1993), in which the Commission seeks comment on whether the
public interest would be served by establishing limits on the amount of
commercial matter broadcast by television stations. The Commission
adopted the Notice on its own motion. Comments were due by December 20,
1993, and the deadline for reply comments was January 5, 1994.\1\
---------------------------------------------------------------------------
\1\The Bureau altered these comments dates from the original
dates set forth in the Notice of Inquiry. Order in MM Docket No. 93-
254, DA No. 93-1425 (released November 22, 1993).
---------------------------------------------------------------------------
2. The Center for the Study of Commercialism, the Center for Media
Education, the Consumer Federation of America, and the Office of
Communication of the United Church for Christ (the parties) request a
30-day extension of the reply comment period in order to address
adequately the matters asserted in the comments. The parties state that
the reply comment period extends over the seasonal holidays, providing
insufficient time in which to prepare an adequate reply. In addition,
they state that their co-counsel, a clinical legal education program at
a local law school, lacks the staff to prepare reply comments during
the school holiday.\2\
---------------------------------------------------------------------------
\2\The parties also state that an extension will allow the
Commission to supplement the Notice. Specifically, they request that
two pending petitions for rulemaking, both of which concern the
Commission's rules on commercial sponsorship identification, be
incorporated into this proceeding. However, we believe that the
issues raised in the petitions for rulemaking are best addressed
separately by the Commission. Accordingly, we decline to extend the
range of issues addressed in this proceeding.
---------------------------------------------------------------------------
3. In light of the foregoing, the Bureau finds that good cause
exists for an extension. Grant of the request will provide the
Commission a more substantial record upon which to base its findings.
Therefore, pursuant to 47 CFR 0.283, the deadline for filing reply
comments is extended until February 4, 1994.
Federal Communications Commission.
Roy J. Stewart,
Chief, Mass Media Bureau.
[FR Doc. 94-211 Filed 1-5-94; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 94-186 Approval and Promulgation of Implementation Plan Texas State II Program
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 707-709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-186]
[[Page Unknown]]
[Federal Register: January 6, 1994]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[TX-22-1-5738; FRL-4821-9]
Approval and Promulgation of Implementation Plan Texas State II
Program
AGENCY: United States Environmental Protection Agency (EPA).
ACTION: Proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The EPA is taking action to approve the Texas Natural Resource
Conservation Commission State II State Implementation Plan (SIP), which
includes a SIP Supplement dated September 30, 1992, and Regulation V
(31 TAC Section 115 Subchapter C: Volatile Organic Compound Marketing
Operations), as a revision to the Texas SIP for ozone. On November 13,
1992, Texas submitted a SIP revision request to the EPA to satisfy the
Clean Air Act, as amended (1990). This SIP revision requires owners and
operators of gasoline dispensing facilities to install and operate
Stage II vapor recovery equipment in the four Texas ozone nonattainment
areas classified as moderate or worse. This revision applies to the
Texas counties of Brazoria, Chambers, Collin, Dallas, Denton, El Paso,
Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery,
Orange, Tarrant, and Waller.
DATES: Comments must be received by February 7, 1994.
ADDRESSES: Comments should be sent to James F. Davis at U.S. EPA Region
6, (6T-AP), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The
State submittal and the technical support document (TSD) are available
for public review at the above address and at the Texas Natural
Resource Conservation Commission, Stage II Program, 12124 Park 35
Circle, Austin, Texas 78753. Interested persons wanting to examine
these documents should make an appointment with the appropriate office
at least 24 hours before the visiting day.
FOR FURTHER INFORMATION CONTACT:
James F. Davis at (214) 655-7584.
SUPPLEMENTARY INFORMATION:
Under section 182(b)(3) of the Clean Air Act (CAA), the EPA was
required to issue guidance as to the effectiveness of Stage II systems.
The EPA issued technical guidance in November 1991, and enforcement
guidance in December 1991, to meet this requirement.\1\ In addition, on
April 16, 1992, the EPA published the ``General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of 1990''
(General Preamble) (57 FR 13498). The guidance documents and the
General Preamble interpret the Stage II statutory requirement and
indicate what the EPA believes a State submittal needs to include to
meet that requirement.
---------------------------------------------------------------------------
\1\These two documents are entitled ``Technical Guidance--Stage
II Vapor Recovery Systems for Control of Vehicle Refueling Emissions
at Gasoline Dispensing Facilities'' (EPA-450/3-91-022) and
``Enforcement Guidance for Stage II Vehicle Refueling Control
Programs.''
---------------------------------------------------------------------------
The EPA has designated four areas as ozone nonattainment in the
State of Texas. The Houston/Galveston/Brazoria ozone nonattainment area
is classified as severe and contains the following eight counties:
Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery,
and Waller. The Beaumont/Port Arthur ozone nonattainment area is
classified as serious and contains the following three counties:
Hardin, Jefferson, and Orange. The El Paso ozone nonattainment area is
classified as serious and contains the county of El Paso. The Dallas/
Fort Worth ozone nonattainment area is classified as moderate and
contains the following four counties: Collin, Dallas, Denton, and
Tarrant. The designations for ozone were published in the Federal
Register (FR) on November 6, 1991, and November 30, 1992, and have been
codified in the Code of Federal Regulations (CFR). See 56 FR 56694
(November 6, 1991) and 57 FR 56762 (November 30, 1992), codified at 40
CFR sections 81.300-81.437. Under section 182(b)(3) of the amended CAA,
Texas was required to submit Stage II vapor recovery rules for these
areas by November 15, 1992. On November 13, 1992, Governor Ann W.
Richards submitted to the EPA Stage II vapor recovery rules and a SIP
Supplement dated September 30, 1992, which were adopted by the State on
October 16, 1992. By today's action, the EPA is proposing to approve
this submittal. The EPA has reviewed the State submittal against the
statutory requirements and for consistency with the EPA guidance. A
summary of the EPA's analysis is provided below. In addition, a more
detailed analysis of the State submittal is contained in a TSD, dated
June 25, 1993, which is available from the Region 6 Office, listed
above.
I. Applicability
Under section 182(b)(3) of the CAA, States were required by
November 15, 1992, to adopt regulations requiring owners or operators
of gasoline dispensing systems to install and operate vapor recovery
equipment at their facilities. The amended CAA specifies that these
State rules must apply to any facility that dispenses more than 10,000
gallons of gasoline per month or, in the case of an independent small
business marketer, any facility that dispenses more than 50,000 gallons
of gasoline per month. Section 324 of the CAA defines an independent
small business marketer. The State has adopted a general applicability
requirement of 10,000 gallons per month and has not included a lower
applicability for independent small business marketers. However,
independent small business marketer which dispense less than 50,000
gallons have a provision for an extended compliance deadline.
As more fully discussed in the EPA's Enforcement Guidance and the
General Preamble (57 FR at 13514), the State has provided that the
gallons of gasoline dispensed per month will be based on the gasoline
throughput for each calendar month beginning January 1, 1991. The State
is interpreting this requirement to mean that if a facility exceeds the
throughput limits for any one month, the facility will be required to
install Stage II. While the State is not calculating the average volume
of gasoline dispensed per month for the two year period preceding the
adoption date, the EPA believes that the State's method will require
more gasoline dispensing facilities to comply with Stage II
requirements. In addition, the State has specified that the State II
requirements apply to all gasoline dispensing facilities, including
retail outlets and fleet fueling facilities, with throughput rates as
defined above. However, the State has exempted gasoline dispensing
equipment used exclusively for the fueling of aircraft, marine vessels,
or implements of agriculture. The EPA has determined that these limited
exemptions are acceptable in the Texas Stage II program for the
following reasons. Historically, the Stage II program was intended to
reduce refueling emissions for ``on-road'' motor vehicles. These
limited exemptions would not be considered to be on-road motor
vehicles. Also, refueling systems of gasoline powered vehicles such as
aircraft, marine vessels, and implements of agriculture are normally
designed with nonstandardized equipment for which Stage II systems
designed for on-road vehicle refueling facilities may not be
compatible. The acceptability of these limited exemptions does not
preclude the State from requiring refueling vapor recovery systems at
such facilities at a later date.
Section 324 establishes a statutory definition of an independent
small business marketer, which is fully set forth in the TSD. The State
has adopted the statutory definition of independent small business
marketer in its regulations.
The EPA finds the applicability requirements in the Texas Stage II
rule to be acceptable.
II. Implementation of Stage II
The CAA specifies the time by which certain facilities must comply
with the State regulation. For facilities that are not owned or
operated by an independent small business marketer, these times,
calculated from the time of State adoption of the regulation, are: (1)
Six months for facilities for which construction began after November
15, 1990, (2) one year for facilities that dispense greater than
100,000 gallons of gasoline per month, and (3) two years for all other
facilities. The Texas Stage II rule time schedule sets compliance dates
of May 15, 1993, November 15, 1993, and November 15, 1994, respectively
for the above three deadlines. Although Texas adopted its Stage II
regulations on October 16, 1992, the EPA believes it is appropriate to
accept the adoption date to be November 15, 1992.
The EPA is proposing to approve the submitted time table for the
following reasons. First, the CAA states that the adoption date must be
used to calculate the compliance schedule for Stage II implementation
at facilities. In this case, the EPA defines the adoption date to be
the date when the regulation and the rest of the SIP was required to be
submitted to the EPA on November 15, 1992. The compliance deadlines
triggered by this date begin within the time schedule specified by the
CAA. Secondly, remedying this deficiency by amending the compliance
schedule would cause further delay in the implementation of Stage II in
Texas. Lastly, the Texas rule otherwise fulfills the Stage II
requirements and the EPA believes it will provide substantial air
quality benefits to the regulated areas. Therefore, the EPA believes it
is in the public interest to approve and make enforceable this
requirement at the earliest time feasible.
In the Texas program, independent small business marketers of
gasoline, for which the monthly gasoline throughput is less than 50,000
gallons per month, may petition, no later than November 15, 1993, the
State's Executive Director for an extension of the compliance deadline
to December 22, 1998, or until on or more of the facility's gasoline
storage tanks are replaced and/or equipped with corrosive protection,
which is required by the Texas Natural Resource Conservation
Commission. This extension provision for independent small business
marketers of gasoline, for which the monthly gasoline throughput is
less than 50,000 gallons per month, is acceptable because the CAA does
not require Stage II systems to be installed on such facilities.
III. Additional Program Requirements
Consistent with the EPA's guidance, the State requires that Stage
II systems be tested and certified to meet a 95 percent emission
reduction efficiency. The EPA has indicated three acceptable methods of
demonstrating a 95 percent emission reduction efficiency: (1) A method
tested and approved by the California Air Resources Board (CARB); (2) a
testing program that is equivalent to the CARB program, that will be
conducted by the Program Oversight Agency or by a third party
recognized by the Program Oversight Agency, and submitted and approved
by the EPA for incorporation into the SIP; or (3) a system approved by
CARB. The State has chosen to use option three, a system approved by
CARB. The State requires sources to verify proper installation and
function of Stage II equipment through use of a liquid blockage test
and a leak test prior to system operation and at least every five years
or upon major modification of a facility (i.e., 75 percent or more
equipment change).
With respect to recordkeeping, the State has adopted those items
recommended in the EPA's guidance and specifies that sources subject to
Stage II must make these documents available upon request: (1) A copy
of the California Air Resources Board (CARB) Executive Order for the
specific Stage II vapor recovery system installed at the facility, (2)
results of verification tests, (3) equipment maintenance and compliance
file logs indicating compliance with manufacturer's specifications and
requirements, (4) training certification files, and (5) inspection and
compliance records. In addition, the State has committed in their SIP
supplement to maintain a general compliance file, including information
such as facility name, address, phone number, owner/operator names, a
State assigned reference number, date of initial compliance with the
regulations, number of pumps and monthly gasoline throughput. The State
has also established an inspection function consistent with that
described in the EPA's guidance. The State commits to conducting
inspections of facilities including a visual inspection of the Stage II
equipment and of the required records and a functional test of the
Stage II equipment. According to the Supplement, the State shall
inspect each facility at least one time per year with follow-up
inspections at noncomplying facilities. Finally, the State has
established procedures for enforcing violations of the Stage II
requirements, and has committed to establish a penalty schedule in the
SIP. A detailed draft penalty schedule has already been developed by
the State. Administrative penalties may be assessed of up to $10,000
per day per violation and civil penalties of up to $25,000 per day per
violation. The EPA finds the State's program for implementation and
enforcement of the Stage II program to be consistent with the EPA
guidelines.
Rulemaking Action
Since the EPA finds that the State has adopted a Stage II SIP in
accordance with section 182(b)(3) of the CAA, as interpreted in EPA's
guidance, the EPA is proposing to approve the submittal as meeting the
requirements of section 182(b)(3).
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered in light of specific technical, economical, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et.
seq., the EPA must prepare a regulatory flexibility analysis assessing
the impact of any proposed or final rule on small entities (5 U.S.C.
sections 603 and 604). Alternatively, the EPA may certify that the rule
will not have a significant impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
CAA forbids the EPA to base its actions concerning SIPs on such grounds
(Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. section 7410(a)(2).
This action has been classified as a Table Two action by the
Regional Administrator under the procedures published in the FR on
January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the Office of
Management and Budget (OMB) waived Table Two and Table Three SIP
revisions from the requirements of section three of Executive Order
12291 for a period of two years (54 FR 2222). The EPA has submitted a
request for a permanent waiver for Table Two and Table Three SIP
revisions. The OMB has agreed to continue the temporary waiver until
such time as it rules on the EPA's request. This request is still
applicable under Executive Order 12866.
List of Subjects
40 CFR Part 52
Air pollution control; Hydrocarbons; Environmental protection;
Incorporation by reference; Intergovernmental relations; Ozone;
Reporting and recordkeeping requirements; Volatile organic compounds.
40 CFR Part 81
Air, pollution, control.
Authority: 42 U.S.C. 7401-7671q.
Dated: November 24, 1993.
W.B. Hathaway,
Acting Regional Administrator.
[FR Doc. 94-186 Filed 1-5-94; 8:45 am]
BILLING CODE 6560-50-M
Complete official Federal Register PDF
FR Doc. 94-184 National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Page 714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-184]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-4822-5]
National Oil and Hazardous Substances Pollution Contingency Plan
(NCP)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Reopening of comment period on proposed rule; notice of public
meeting.
-----------------------------------------------------------------------
SUMMARY: On October 22, 1993 (58 FR 54702), EPA published in the
Federal Register a Notice of Proposed Rulemaking (NPRM) that would
revise the National Contingency Plan (NCP) consistent with the Oil
Pollution Act of 1990 (OPA). The public comment period for the NPRM
ended December 20, 1993. EPA received several letters requesting a
comment period extension. To accommodate these requests and obtain
additional input concerning the NPRM, EPA will hold a public meeting at
which interested parties may present their concerns for EPA's
consideration in finalizing the NCP. EPA is today reopening the comment
period until the day of that meeting.
DATES: EPA must receive all comments on or before January 14, 1994. The
public meeting will be held on January 14, 1994, from 9 a.m. until 4
p.m.
ADDRESSES: Comments should be submitted in triplicate to Emergency
Response Division, Attn: Superfund Docket Clerk, Docket Number NCP-R2/
A, Superfund Docket, room M2427, U.S. Environmental Protection Agency,
401 M Street SW., Washington, DC 20460.
The meeting will be held in EPA's Region 10 office, located at 1200
Sixth Avenue, Seattle, WA 98101.
FOR FURTHER INFORMATION CONTACT: Richard Morris, Emergency Response
Division (5202G), U.S. Environmental Protection Agency, 401 M Street
SW., Washington, DC 20460, (703) 603-9053.
SUPPLEMENTARY INFORMATION:
Public Meeting
Meeting attendees should send a letter by telephone facsimile by
Monday, January 10, 1994, stating attendees' names, addresses,
affiliation, and telephone numbers, to Richard Norris, EPA Emergency
Response Division, at (703) 603-9116. Those who do not have a facsimile
machine may telephone (703) 603-9074 and leave a message containing the
information requested above.
Attendees should submit in writing any additional comments they
wish to add to the public record in the event that time does not allow
for all comments to be presented orally. Additional written comments
may also be submitted to the EPA docket, if commenters do not wish to
attend the public meeting. Written comments should be submitted in
triplicate either at the public meeting or to: Emergency Response
Division, Attn: Superfund Docket Clerk, Docket Number NCP-R2/A,
Superfund Docket, room M2427, U.S. Environmental Protection Agency, 401
M Street SW., Washington, DC 20460.
Summary of Proposed Rule
The proposed revisions (58 FR 54702) include the creation of Area
Committees and Area Contingency Plans; a National Response Unit to
assist in coordinating spill removal resources, personnel, and
equipment; and U.S. Coast Guard District Response Groups to assist On-
Scene Coordinators and maintain Coast Guard response equipment. In
addition, the NPRM includes criteria and procedures for responding to
discharges that result in substantial threats to public health or
welfare; procedures and standards for preventing, mitigating, and
removing worst case discharges; and a new provision addressing spills
of national significance. EPA also proposed to revise subpart J of the
NCP, which provides for a Product Schedule that lists dispersants,
bioremediation agents, and other miscellaneous oil spill control
substances. The subpart J revisions would reflect new dispersant
effectiveness testing and acceptability criteria.
Dated: December 29, 1993.
Elliott P. Laws,
Assistant Administrator.
[FR Doc. 94-184 Filed 1-5-94; 8:45 am]
BILLING CODE 6560-50-M
Complete official Federal Register PDF
FR Doc. 94-182 Availability of Report to Congress on Cement Kiln Dust; Request for Comments and Announcement of Public Hearing
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 709-714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-182]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-4822-9]
Availability of Report to Congress on Cement Kiln Dust; Request
for Comments and Announcement of Public Hearing
AGENCY: Environmental Protection Agency.
ACTION: Notice of availability.
-----------------------------------------------------------------------
SUMMARY: This notice announces the availability of the Agency's Report
to Congress on Cement Kiln Dust, that is required by section 8002(o) of
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6982(o).
The Report to Congress contains a detailed study of cement kiln dust
(CKD), which is within the scope of the exemption from hazardous waste
regulations provided by section 3001(b)(3)(A)(iii) of RCRA as codified
at 40 CFR 261.4(b)(8); this exemption is often referred to as the
Bevill Exemption. The report also presents the Agency's decision making
rationale and a series of options being considered regarding regulatory
options for cement kiln dust waste. Information submitted in public
comments and at a public hearing will be used in conjunction with the
Report to Congress to make a final determination on the regulatory
status of these wastes.
DATES: EPA will accept public comments on the Report to Congress on
Cement Kiln Dust until February 22, 1994. The Agency will hold a public
hearing on the Report to Congress on February 15, 1994.
ADDRESSES: Requests to speak at the public hearing should be submitted
in writing to the Public Hearing Officer--Cement Kiln Dust, Office of
Solid Waste, Special Waste Branch, U.S. Environmental Protection
Agency, 401 M Street (5302W), SW., Washington, DC 20460. The February
15, 1994 public hearing will be held at the Renaissance Hotel in
Washington, DC, located at 999 9th Street, NW. The hearing will begin
at 9 a.m. with registration beginning at 8:30 a.m. The hearing will end
at 5 p.m. unless concluded earlier. Oral and written statements may be
submitted at the public hearing. Persons who wish to make oral
presentations must restrict them to 15 minutes, and are requested to
provide written comments for inclusion in the record.
Copies of the full report are available for inspection and copying
at the EPA Headquarters library, at the RCRA Docket in Washington, DC,
and at all EPA Regional Office libraries. Copies of the full report can
be purchased from the National Technical Information Service (call
(703) 487-4660 or (800) 553-NTIS). Copies of the Executive Summary
(Volume I) can be obtained by calling the RCRA/Superfund Hotline at
(800) 424-9346 or (703) 412-9810.
Those wishing to submit public comments for the record must send an
original and two copies of their comments to the following address:
RCRA Docket Information Center (5305), U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC, 20460. Please place the
docket number F-93-RCKA-FFFFF on your comments.
The RCRA docket is located in room M2616 at EPA Headquarters in
Washington, DC. The docket is open from 9 to 4 p.m., Monday through
Friday, except Federal holidays. In order to view the docket, please
call (202) 260-9327 to make an appointment. Copies are free up to 100
pages and thereafter cost $0.15/page.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA/Superfund Hotline at (800) 424-9346 or (703) 412-9810; for
technical information contact Bill Schoenborn, U.S. Environmental
Protection Agency (5302W), 401 M Street, SW., Washington, DC 20460, at
(703) 308-8483.
SUPPLEMENTAL INFORMATION:
A. Background Information
RCRA section 3001(b)(3) (hereafter referred to as the Bevill
Exemption) exempts, among other things, cement kiln dust waste from
regulation under RCRA subtitle C, pending completion of a Report to
Congress and a subsequent determination of whether such regulation is
warranted. In RCRA section 8002(o), Congress directed EPA to conduct a
detailed and comprehensive study based on eight study factors
(discussed below) and submit a Report to Congress on ``the adverse
effects on human health and the environment, if any, of the disposal
and utilization of cement kiln dust waste''. RCRA section 3001(b)(3)(C)
then requires that EPA determine, within six months of the date of
submission of the Report to Congress, either to promulgate regulations
for CKD under subtitle C or determine that subtitle C regulation is
unwarranted.
The Bevill Exemption was added to RCRA on October 12, 1980, as part
of the 1980 Solid Waste Disposal Act Amendment. In response to the 1980
RCRA amendments, EPA published an interim final amendment to its
hazardous waste regulations to reflect the provisions of the Bevill
Exemption (40 CFR 261.4(b)(8)). Since that time, cement kiln dust has
remained exempt from subtitle C of RCRA, meaning that this material has
never been subject to hazardous waste regulations under Federal law.
On March 8, 1989, the Environmental Defense Fund (EDF) filed suit
against EPA for failing to complete the RTC as required by RCRA. On
June 19, 1991, EPA entered into a proposed consent decree with EDF. In
the proposed consent decree, EPA agreed to complete the Report to
Congress on Cement Kiln Dust by April 30, 1993. The proposed consent
decree was later modified to extend the deadline for issuance of the
Report to Congress to December 31, 1993.
B. Report to Congress
EPA has completed its study of CKD waste and prepared the Report to
Congress on Cement Kiln Dust. In keeping with the statutory
requirements, the report addresses the following factors (hereafter
``study factors'') required under section 8002(o) of RCRA:
(1) The source and volumes of such materials generated per year;
(2) Present disposal practices;
(3) Potential danger, if any, to human health and the environment
from the disposal of such materials;
(4) Documented cases in which danger to human health or the
environment has been proved;
(5) Alternatives to current disposal methods;
(6) The costs of such alternatives;
(7) The impact of those alternatives on the use of natural
resources; and
(8) The current and potential utilization of such materials.
In addition, section 8002(o) directs the Agency review other Federal
and state studies and actions (e.g., regulations) to avoid duplication
of effort.
The Agency's approach in preparing the Report to Congress was to
combine certain study factors for purposes of analysis and to evaluate
these study factors in a step-wise fashion. This evaluation process,
hereafter referred to as EPA's decision rationale, is a three-step
methodology that was used in making the regulatory determinations for
Mineral Processing Special Wastes (56 FR 27305, June 13, 1991) and the
four large-volume Wastes from the Combustion of Coal by Electric
Utilities (58 FR 42466, August 9, 1993). The decision rationale
contributed to the development of the proposed options for managing CKD
waste. EPA is soliciting comment on how the decision rationale can be
used in the Agency's decision-making process.
The resulting review and discussion of EPA's analysis is organized
into ten chapters in Volume II of the Report to Congress: Methods and
Findings. (Volume I is an Executive Summary.) The first chapter of
Volume II briefly summarizes the purpose and scope of the report,
general methods and information sources used, and EPA's decision making
methodology. The second chapter provides a brief overview of the cement
industry, including a description of CKD waste, the industry structure
and characteristics, the cement manufacturing process, the types of
production processes used, and significant process inputs (RCRA Study
Factor 1). The third chapter discusses the generation and chemical and
physical characteristics of CKD (Study Factors 1 and 3). The fourth
chapter outlines the range of CKD management methods employed at
domestic cement plants (Study Factor 2). The fifth chapter identifies
and summarizes cases of potential and documented damages to human
health and the environment (Study Factor 4). The sixth chapter includes
a discussion of EPA's risk assessment in which the Agency examined
inherent hazards posed by CKD, evaluated site-specific risk factors,
and performed quantitative transport, fate and exposure modeling (Study
Factor 3). The seventh chapter summarizes applicable federal and state
regulatory controls. The eighth chapter investigates alternative waste
management practices and potential utilization of the wastes (Study
Factors 5, 6, and 7). The ninth chapter discusses costs and impacts
under each of several regulatory and operational scenarios (Study
Factor 8). The tenth and final chapter of Volume II of the Report to
Congress summarizes and analyzes the findings of EPA's evaluation of
the above study factors and presents a series of options the Agency is
considering, based on these findings, concerning the management of
cement kiln dust.
C. Decision Rationale
After studying cement kiln dust, the Agency used the decision
rationale to evaluate the findings of the study factors, and to
formulate a series of options being considered regarding the level of
control needed for CKD. In Step 1 of the decision rationale, the Agency
first determined whether the management of CKD poses human health/
environmental problems and the potential for current practices to cause
problems in the future. In Step 2, the Agency looked at waste
management practices and existing regulations to examine the potential
for releases and exposure under current practices. In Step 3, the
Agency evaluated the costs and impacts associated with regulating this
waste under Subtitle C and, possibly, other regulatory scenarios.
The rationale for the order of questions is that cement kiln dust
should first be considered to present risk to human health or the
environment or a potential risk under plausible mismanagement scenarios
before the Agency considers it for regulation under RCRA subtitle C.
Second, before it considers regulating the waste under subtitle C, the
Agency should determine that current management practices and existing
state and Federal regulatory controls are inadequate to limit the risks
posed by a waste. Then it should consider whether subtitle C regulation
would be effective and appropriate. Finally, the special statutory
status of the waste requires that the Agency consider the impacts to
the industry that regulation under subtitle C would create in making a
decision to regulate the waste as hazardous. Therefore, the decision
rationale allows EPA to systematically narrow its focus as to whether
the waste may present significant risk of harm and whether additional
regulatory controls are necessary and desirable.
The tentative answers to the questions posed in its three-step
decision rationale are discussed below:
Step 1: Does management of CKD pose human health and environmental
problems? Might current practices cause problems in the future?
After reviewing evidence of damage to human health and the
environment, performing a risk assessment, and reviewing the results of
laboratory analyses of waste samples, EPA has concluded that risks
associated with CKD management are generally low, however, there is a
potential under certain circumstances for CKD to pose a danger to human
health and environment, and may do so in the future.
Data collected from state files and EPA site visits identify common
CKD waste management practices, including management in exposed,
unlined piles, abandoned quarries, and landfills, that have caused, and
may continue to cause, contamination of air and nearby surface water
and ground water. Management practices such as disposal in a water-
filled quarry and management in piles adjacent to grazing and
agricultural fields or surface water bodies also pose a potential
danger to human health and the environment. In addition, risk modeling
results supports the conclusion that CKD can potentially pose risks to
human health and the environment under certain hypothetical, yet
plausible scenarios.
Step 2: Is more stringent regulation necessary or desirable?
EPA has reached no conclusions with respect to the need for more
stringent regulation. EPA's preliminary analysis of the effectiveness
of State and Federal regulations and controls suggests that additional
controls should be evaluated; for example, controls for CKD management
scenarios which potentially present high risks, if those scenarios
exist. While CKD is regulated under State and local laws, the specific
requirements for CKD vary from state to state. In many instances,
minimal controls are applied to these wastes. Also, recycling
technologies could be used as a means to improve waste management
practices.
Step 3: What would be the operational and economic consequences of
a decision to regulate CKD under subtitle C?
Operational costs of CKD regulation are largely dependent on the
management alternative selected. If CKD is managed as a hazardous waste
under RCRA subtitle C, facilities that manage their CKD through on-site
land disposal are estimated to incur significant compliance costs.
However, the financial burden of compliance, even for waste dust
generated in kilns that burn RCRA hazardous waste, may be reduced, if
facilities are able to adopt pollution prevention technologies which
recycle CKD.
The possible economic outcomes of a decision to regulate CKD under
RCRA subtitle C cover a broad spectrum. An economic analysis of
innovative pollution prevention technologies (including alkali
leaching, flue gas desulfurization, and fluid-bed dust recovery),
suggests that the potentially high compliance costs of CKD land
disposal may drive the industry toward more recycling of their CKD.
However, at this early stage of their development, it is uncertain that
these recycling technologies can be widely adopted by the industry.
Moreover, even if CKD is recycled, some facilities may incur
substantial disposal costs.
D. Regulatory Options
This section presents a series of options the Agency is considering
concerning the management of cement kiln dust waste based on the
findings of this Report. In accordance with RCRA section 3001(b)(3)(C),
EPA will make a regulatory determination for cement kiln dust waste
after submitting this Report to Congress, and after holding a public
hearing, and accepting and reviewing public comments.
As stated previously, cement kiln dust waste generally presents a
low inherent toxicity, is only rarely characteristically hazardous,
and, in most cases based on risk modeling, does not present a risk to
human health and the environment. However, cement kiln dust waste may
pose a potential threat to human health and the environment considering
plausible worst case conditions under certain hypothetical management
scenarios (see Chapters 5 and 6). Major factors increasing the
potential for human health and environmental damages include proximity
to potential exposure points such as agricultural fields and surface
water bodies, as well as the concentrations of key constituents of
concern.
Based on the findings, and an initial evaluation of regulatory
options, the Agency has not decided whether to retain or remove the CKD
exemption. The Agency considered a number of options which represent a
wide range of scenarios that would subject CKD to different management
requirements and enforcement oversight. From these, the Agency has
chosen to highlight five, including three in which CKD would be managed
under subtitle C, with the intent to focus public comment from
environmental groups, industry, and other interested parties regarding
the most appropriate approach to manage CKD.
EPA notes that regulations for the management of CKD waste under
subtitle C may not be warranted or appropriate if other Agency-
administered programs are better suited to address the concerns
identified in this Report. Among the statutes that may have authority
to address the indirect foodchain risks associated with CKD are the
Clean Water Act (stormwater management regulations), the Clean Air Act
(the program defining the National Emissions Standards for Hazardous
Air Pollutants), and the Toxic Substances Control Act (which gives the
Agency authority to issue appropriate regulations to address the risks
from hazardous chemical substances or mixtures). These alternative
authorities are being explored and a decision to pursue regulation of
CKD under one or more of these statutes may form the basis for a
decision that subtitle C regulation of CKD may be limited or even
unwarranted.
Whether or not the Agency lifts the exemption, dust suppression and
storm water management at facilities that burn hazardous waste, as well
as on-site CKD management practices at all other facilities would be
subject to current and potential future regulation under the Federal
Clean Air and Clean Water Acts, and where such provisions exist, all
applicable state laws and regulations. Damages at existing CKD disposal
sites also could be addressed by RCRA section 7003 and CERCLA section
104 and 106, if the site posed an imminent and substantial danger to
human health and the environment.
Option 1: Retain the CKD Exemption.
Since CKD exhibits low inherent toxicity and poses minimal risk
when evaluating the various exposure pathways using average or best
case conditions, it may be appropriate to retain the exemption for
cement kiln dust waste, that is, maintain the status quo. Under this
option, CKD management would continue to be regulated by the States, if
at all.
Option 2: Retain the CKD Exemption, but enter into discussions with
the industry, in which they voluntarily implement dust recycling
technologies, reduce waste, and monitor and control certain off-site
uses.
Since certain management scenarios may present risks when assuming
plausible worst case conditions and pollution prevention alternatives
may be promising in certain instances, the Agency could enter into
discussions with the cement manufacturing industry to urge it to
implement selected waste minimization/pollution prevention technologies
or implement, more environmentally protective management practices,
including controlling certain off-site uses.
For example, some of the potential higher risk situations that have
been identified in the hypothetical scenarios relate to on-site CKD
management and derive from CKD releases from waste piles or other
points via wind-blown dust or storm water runoff or a combination of
the two. These contaminant release situations may be controllable (and
at some facilities are currently being controlled) at relatively low
cost by careful location of the waste pile and active use of
conventional dust suppression and storm water management practices. The
Agency would hold discussions with the industry to encourage them to
voluntarily agree to implement these practices.
An exception to the above conclusion would appear to be the 15
percent or so of cement plants where CKD waste is managed in areas of
karst topography or other areas characterized by flow in fractured or
cavernous bedrock, where leachate may directly percolate to groundwater
with little or no attenuation. For some of these facilities, the
groundwater pathway may become of increased concern, depending on other
site specific considerations. Again, EPA would discuss with the
industry opportunities to either use appropriate liners or relocate the
CKD management unit.
About 20 percent of current net CKD generation is used off-site for
a wide variety of purposes, most of which according to the Agency's
risk assessment do not pose human health or other risks. However, the
use of raw CKD containing higher measured levels of certain metals and/
or dioxins as a direct substitute for lime on agricultural fields and
gardens can concentrate toxic constituents in crops and animal products
at levels of concern for human health. This use of CKD, though not
widely practiced at present, is otherwise not currently controlled, and
may warrant further consideration by the Agency.
The Agency, under this option, could also develop guidance for
States regarding site management, off-site uses, and pollution
prevention and waste minimization technologies. This guidance would
assist States in reducing the potential risks posed by mismanagement of
CKD and recommend implementation of technologies that would promote
recycling of CKD.
Under this option, CKD management would not be controlled by the
provisions of RCRA subtitle C. However, since the exemption for CKD
remains in place, CKD generated in kilns that burn hazardous waste
would still be subject to the two-part test for residuals under 40 CFR
266.112. If CKD does not pass the two-part test, it would be treated to
standards for land disposal (40 CFR 268.43) and disposed in a subtitle
C facility. Damages at existing CKD disposal sites would still be
addressed by RCRA section 7003 and CERCLA sections 104 and 106, if the
site posed an imminent and substantial danger to human health and the
environment.
Option 3: Remove the CKD Exemption but delay implementation for
some period of time (e.g., two years), that would allow industry time
to employ pollution prevention options.
While CKD may not present risks when evaluating the various
exposure pathways using average or best case conditions, CKD may pose a
potential danger to human health and the environment if managed in
certain ways under a limited set of exposure pathways assuming
plausible worst case conditions. Also, damages to the environment
resulting from poor CKD management practices have been recorded and are
continuing to occur at some facilities. For these reasons, removing the
Bevill exemption (codified at 40 CFR 261.4(b)(8)) may be appropriate.
Accordingly, provisions of the Boiler and Industrial Furnace rule (40
CFR 266.112) would no longer apply to hazardous waste-derived CKD.
Under this option, on-site CKD management practices at those
facilities with dust that exhibited any of the RCRA hazardous waste
characteristics, or CKD derived from the burning of listed hazardous
wastes (see 40 CFR 261.3(c)(2)(i)) would be affected by the provisions
of RCRA subtitle C. CKD disposal piles which are inactive on or before
the effective date of the Final Rule would be unaffected by the
provisions of subtitle C, unless subsequently managed.
By delaying lifting the exemption for some period of time (e.g.,
two years after the Regulatory Determination), industry would be
provided an opportunity to implement pollution prevention alternatives
and thus, manage the hazardous waste management costs they would incur.
During this interim period between submittal of the Report to Congress
and the effective date of the Final Rule, the CKD exemption would still
be in effect. The Agency believes that many of the affected facilities
would utilize the time to adopt pollution prevention technologies which
would reduce, if not eliminate the amount of hazardous CKD they
generate or stop burning hazardous waste.
Once the exemption is removed, CKD generated from cement
manufacturing facilities that burn RCRA hazardous wastes would be RCRA
hazardous waste under the derived-from rule (40 CFR 261.3(c)(2)(i)).
The goal of avoiding subtitle C compliance costs would provide an
incentive for each facility to look for pollution prevention
alternatives to recycle their CKD and reduce the amount of hazardous
waste generated. The Agency is requesting additional information on the
viability of the CKD recycling options discussed in the RTC and any
other available pollution prevention or recycling option not considered
in the Report.
Those facilities that do not burn hazardous waste would not
generally be affected by removing the exemption unless they generated
characteristic RCRA hazardous waste. The Agency expects the number of
non-hazardous waste burning facilities affected by this option would be
small, since CKD rarely exhibits a characteristic of hazardous waste.
These facilities would have an incentive to control their cement
manufacturing process to avoid generating characteristic CKD.
Option 4: Remove the CKD Exemption, and rely on existing hazardous
waste rules to control cement kiln dust.
This option is similar to Option 3, except the exemption would be
removed in accordance with RCRA section 3010(b). (Under subtitle C of
RCRA, wastes brought under regulatory control have up to six months
from the Regulatory Determination before they become subject to
hazardous waste control.) Thus, CKD that is hazardous waste-derived or
exhibits a RCRA hazardous characteristic would be made subject to the
provisions of RCRA subtitle C. Otherwise, this option is the same as
Option 3.
Option 5: Promulgate Regulatory Standards for the Management of CKD
Waste.
As previously stated, the Agency's analysis of the risks associated
with cement kiln dust suggest that by merely lifting the exemption at
40 CFR 264.1(b)(8), certain pathways of potential concern under the
hypothetical scenarios may not be adequately addressed under Options 3
and 4, should EPA decide that subtitle C regulation is warranted for
CKD in the first instance. Specifically, EPA's risk assessment
indicates indirect foodchain risks are of potential concern from
releases of CKD from disposal piles to nearby surface waters and crop
lands and from the direct application of CKD to croplands as a soil
amendment assuming reasonable worst-case conditions. The Agency
acknowledges, as discussed in detail in Chapter 6, that these modelled
risks, while plausible, are of probably minimal incidence.
As described above, the likely regulatory result under Options 3
and 4 would be to make CKD generated by a kiln that burns listed
hazardous wastes itself a hazardous waste under the derived-from rule
(40 CFR 261.3(c)(2)(i)). The indirect foodchain risks potentially
identified in this Report, however, are not associated only with CKD
generated by hazardous waste burning kilns. As a result, EPA is also
considering regulatory mechanisms that would specifically address these
risks, including promulgating regulatory standards under subtitle C for
the management of CKD waste that would provide adequate protection
against these risks.
RCRA section 3001(b)(3)(C) provides that EPA shall within six
months of the RTC ``determine to promulgate regulations under this
subchapter * * * or determine that such regulations are unwarranted.''
The statute does not describe the type of regulation that EPA should
consider promulgating (if any), other than that such regulation be
under subtitle C of RCRA. For example, RCRA does not expressly direct
EPA to determine whether to list CKD as hazardous, as required for
other wastes under the mandates in RCRA section 3001(c). Furthermore,
RCRA section 2002(a) gives the Administrator the broad authority to
``prescribe * * * such regulations as are necessary to carry out his
functions under this chapter.'' The Agency believes it has the
authority where appropriate to promulgate Federally-enforceable
regulatory standards under subtitle C for the management of CKD. EPA
could explore mechanisms for imposing regulatory standards for CKD,
e.g., under grant of rulemaking authority under section 3001(b)(3)(C).
Alternatively, EPA could consider conditioning the CKD exemption from
the definition of hazardous waste (40 CFR 261.4(b)(8)) on compliance
with appropriate management standards.
EPA could promulgate minimally burdensome management standards for
cement kiln dust that would adequately control the indirect foodchain
risks, such as: (1) Requiring that dust piles be kept covered to
control fugitive emissions and institute surface water runoff and
erosion controls; (2) maintaining groundwater protection, perhaps by
requiring that CKD piles be maintained on a non-earthen base or by
requiring a liner; and (3) establishing risk-based concentration
thresholds for all constituents of concern (including 2,3,7,8-TCDD,
arsenic, cadmium, and lead) for CKD used as a direct soil amendment.
Additional or alternative standards may be appropriate, and EPA
welcomes comments and suggestions on this aspect of its options.
Of the five options being considered by the Agency, Options 3, 4
and 5 would provide more control through implementation of the
provisions of subtitle C. The principal difference between Options 3
and 4 is the timing of the implementation of the regulatory controls.
Option 3 provides industry additional time to implement waste
minimization/pollution prevention options and more protective CKD
management standards. Option 4 would bring CKD under subtitle C
regulatory control more quickly. Removing the exemption also would
impose regulatory equity between CKD generated from kilns that burn
RCRA hazardous waste and residues from other incinerators that burn
RCRA hazardous waste that do not have such an exemption. Option 5 would
provide management standards to control all CKD, and would be targeted
to specifically address only those risks of potential concern.
The Agency did not evaluate the risk from the land application of
agricultural lime, so it cannot determine whether there is an increase
in incremental risk when CKD is substituted. In any event, CKD-sewage
sludge derived fertilizers and soil amendments are considered safe for
such uses as fertilizer and pose minimal risk because these final
products are required to be tested to assure they comply with all
provisions of 40 CFR part 503, which are fully protective of human
health and the environment. It should be noted that if the exemption is
removed, fertilizer that is derived from CKD generated from a kiln that
burns listed hazardous waste is itself a hazardous waste under the
derived-from rule (40 CFR 261.3(c)(2)(i)); the extent of regulation,
however, is limited (see 40 CFR 266.20(b)).
In addition, it should also be noted that under current rules, if
CKD is recycled, the resulting clinker is not automatically subject to
the provisions of subtitle C. By removing the exemption, however,
clinker may be affected by the derived-from rule (40 CFR
261.3(c)(2)(i)) if the kiln burns listed hazardous waste, thereby
becoming a hazardous waste. The Agency has not yet fully analyzed
available data on trace constituents in clinker. Based on our
understanding of current data, however, the Agency does not believe
that clinker produced from kilns that burn listed hazardous waste
generally poses a hazard to human health and the environment. The
Agency is, therefore, considering crafting appropriate regulatory
language for clinker. The Agency, however, is interested in receiving
comment on this issue.
E. Public Comment
The Agency encourages all interested parties to obtain a copy of
the Report to Congress and provide comments or further information that
might be necessary to the Agency on the data, analysis, and findings
contained in the Report to Congress, and on the types of specific
requirements that might be necessary under RCRA subtitle C or D for
this waste. In addition to receiving input from the various
stakeholders regarding the appropriateness of each of the five
regulatory options presented for the management of CKD, the Agency is
interested in receiving additional information and/or comment on the
following:
CKD sampling data (analytical results, including
conditions of sampling, fuels burned at time of sampling, types of
samples collected and analytical methods used).
Documented cases of damage to human health and the
environment traceable to CKD disposal, including notices of violation,
administrative orders, and scientific studies.
How the burning of RCRA hazardous wastes, non-hazardous
wastes (such as tires and non-hazardous used oils), and fossil fuels
affect the quantity and chemistry of generated CKD, as well as the
partitioning of toxic metals, chlorides, and alkalis between stack
gases, CKD, and clinker.
The Agency's consideration of drafting appropriate
regulatory language for clinker acknowledging that, based on the
Agency's preliminary assessment, clinker produced from kilns that burn
hazardous waste generally poses no hazard to human health or the
environment.
The extent to which activities such as farming (including
the recreational gardening of vegetables) and fishing occur around
these facilities.
Any concerns related to the location of cement
manufacturing facilities with respect to environmental justice matters
(i.e., the fair treatment of people of all cultures, incomes, and
educational levels with respect to protection from environmental
hazards).
The viability of implementing the CKD recycling options
discussed in the RTC and any other available pollution prevention or
recycling option not considered in the Report.
How pollution prevention technologies, including flue gas
desulfurization, fluid-bed dust recovery, and alkali leaching affect
the quantity and chemistry of air emissions, as well as the
partitioning of toxic metals, chlorides, and alkalis between CKD and
clinker.
Additional or alternative management standards from those
presented in the Report (e.g., covers for dust piles, runoff controls,
groundwater protection, and the establishment of risk-based thresholds
for all constituents of concern), that might be appropriate for control
of indirect foodchain risks.
Public comments and other documents related to the Report to
Congress will be available for inspection at the docket, together with
information obtained at the public hearing.
Following publication of this report, the Agency will consider
public comments received during a 45-day public comment period in
accordance with RCRA section 3001(b)(3)(c). After evaluating and
responding to public comments, the Agency will make a regulatory
determination on the status of this waste.
Dated: December 30, 1993.
Carol Browner,
Administrator.
[FR Doc. 94-182 Filed 1-5-94; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 94-149 Onshore Oil and Gas Operations, Federal and Indian Oil and Gas Leases; Onshore Oil and Gas Order No. 5, Measurement of Gas
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 718-725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-149]
[[Page Unknown]]
[Federal Register: January 6, 1994]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 3160
[WO-610-4111-02-24 1A]
RIN 1004-AB22
Onshore Oil and Gas Operations, Federal and Indian Oil and Gas
Leases; Onshore Oil and Gas Order No. 5, Measurement of Gas
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would revise Onshore Oil and Gas Order No.
5 under 43 CFR 3164.1, originally issued February 24, 1989 (54 FR
8100), and made effective March 27, 1989, for new facilities, August
23, 1989, for existing facilities measuring 200 thousand cubic feet
(Mcf) or more per day of gas, and February 26, 1990, for existing
facilities producing less than 200 Mcf per day of gas. This proposed
revision would reorganize the Order to make it more logical in
sequence, remove unnecessary provisions, resolve internal
inconsistencies discovered in the Order, and clarify certain
provisions. These changes are based on several years of experience
implementing the Order, and on suggestions from the public.
DATES: Comments should be submitted by March 7, 1994. Comments received
or postmarked after the above date may not be considered in the
decisionmaking process on the final rule.
ADDRESSES: Comments should be sent to: Director (140), Bureau of Land
Management, Room 5555, Main Interior Building, 1849 C Street, N.W.,
Washington, D.C. 20240. Comments will be available for public review at
the above address during regular business hours (7:45 a.m. to 4:15
p.m.), Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Lonny R. Bagley, (406) 255-2847.
SUPPLEMENTARY INFORMATION: Order No. 5, Measurement of Gas, implements
and supplements requirements found in 43 CFR Part 3160 relating to the
measurement of gas produced under the terms of Federal and Indian
(except Osage) oil and gas leases, as well as gas produced from State
or privately owned lands when Federal and/or Indian leases receive a
share of such production under the terms of an approved agreement. The
Order addresses gas measurement by orifice meter and gas measurement by
other methods acceptable to the authorized officer of the Bureau of
Land Management (BLM). Gas measurement by electronic flow computers,
utilizing an orifice, which calculate volume using the equations
specified by the American Gas Association (AGA) Committee Report No. 3,
may be implemented without prior approval if the minimum standards
outlined in the Order are adhered to.
Several years of experience implementing the Order have revealed
some areas where the organization of the Order can be improved, and
certain provisions that require amendment or clarification or both.
The statement of the purpose of the Order in section I.B. is
proposed to be amended to remove the reference to the assessments and
penalties imposed as a result of noncompliance or the failure to
correct noncompliance, because the Order does not set forth such
assessments and penalties. The purpose statement also is proposed to be
amended to include the purpose that measurements be accurate.
There are no amendments proposed in the definitions included in the
existing Order. However, one new definition (meter uncertainty) would
be added in this proposed rule.
Section III.A. on Required Recordkeeping is proposed to be amended
by adding requirements for the retention of data generated by
electronic flow computers. The revised Order would set forth
specifically the kinds of data required to be retained, without
prescribing an exhaustive list.
Article III. would be reorganized in the proposed Order. Two new
sections would be added to cover minimum standards specific to the
secondary element of the orifice meter and to allow the use of other
types of secondary elements, and to cover other requirements not
specific to orifice meters or the secondary element. Requirements
included in section C. on orifice meters are proposed to be moved, and
in some cases amended, as part of the new section D. on secondary
elements or section E. on other requirements, and several new
requirements have been added as part of section C. and new section D.
These changes are stated in table form below.
------------------------------------------------------------------------
Existing order citations Proposed order citations
------------------------------------------------------------------------
III.C. Gas Measurement by Orifice III.C Primary Element--Orifice
Meter. Meters.
C.1................................ C.1.
C.2................................ C.2.
C.3................................ C.3.
C.4................................ D.10.a.
C.5................................ D.10.b.
C.6................................ C.4.
C.7................................ D.1.
C.8................................ C.5.
C.6. (new).
C.9................................ C.7.
C.10............................... C.8.
C.11............................... C.9.
C.12............................... C.10.
C.13............................... (removed).
D. Secondary Element (new).
D.2. (new).
C.14............................... D.10.c.
C.15............................... D.3.
D.4. (new).
D5. (new).
C.16............................... D.10.d.
C.17............................... D.6.
C.18............................... D.7.
C.19............................... D.8.
D.11.a., b., and c. (new).
E. Other Requirements (new).
C.20............................... E.1.
C.21............................... C.11.
C.22............................... Removed.
C.23............................... E.2.
C.24............................... D.9.
C.25............................... E.3.
C.26............................... E.4.
D. Gas Measurmeent by Other Methods F. Gas Measurement by Other
Methods.
D.1................................ F.1.
D.2................................ F.2.
------------------------------------------------------------------------
The automatic exemption from some requirements for meters measuring
100 Mcf per day or less on a monthly basis would be expanded to include
3 additional standards. These added exemptions would include the
existing requirement that the static element be sized to make the pen
that records the static pressure operate in the outer \2/3\ of the
chart range for the majority of the flowing period, the new requirement
that electronic flow computers be installed, operated, and maintained
to achieve an overall meter uncertainty of plus or minus 3 percent, and
the new requirement for inspecting meter tubes every 5 years. Language
has been added to the Order identifying the applicable standards for
the exemption.
The following requirements proposed to be amended in revised Order
No. 5 are discussed below in the order they appear in this proposed
rule.
III.C.5. (formerly C.8.) is proposed to be amended purely for
clarification. It is the difference between the internal diameters of
the meter tube pipe and the orifice fittings that is to be within AGA
tolerance limits, not the diameters themselves, as the existing Order
seems to provide.
III.C.6. (new) is added to ensure that the meter tubes conform with
AGA Committee Report No. 3. Proper meter tube condition is essential
for accurate measurement. It is intended that all meter tube
inspections would be conducted within the first 5 years after the
effective date of the final rule, and every 5 years thereafter. Meters
measuring 100 Mcf per day or less on a monthly basis would be exempt
from this new requirement.
III.C.8. (formerly C.10.) is proposed to be amended for precision
in stating the requirement. As stated in this rule, orifice plates
would be required to be inspected during calibration of the secondary
element.
III.C.10. (formerly C.12.) is proposed to be amended by removing
the requirement that, when leaks are detected, the meter setting shall
be determined and recorded ``as found,'' and ``as left'' after the
meter is calibrated. This part of the existing requirement is
duplicated by the linearity test in requirement III.D.3. of the
proposed Order.
III.C.13. in the existing Order would be removed in the proposed
Order because it is duplicated by the linearity test in requirement
III.D.3. of the proposed Order.
III.C.11. (formerly C.21.) would be amended by revising the
corrective action to provide for the submittal of a report to BLM. The
form called for in existing requirement C.21. is now submitted to the
Minerals Management Service, not to the BLM. Under the proposed rule,
the operator would be required to submit a report to the BLM showing
what corrections were made.
III.D.1. (formerly C.7.) would be amended by removing the provision
allowing consideration of a variance for sales or allocation meters
measuring between 200 and 500 Mcf per day. This provision duplicates
the general provision for a variance under Article IV. of the Order.
The requirement for the use of an indicating thermometer would be
removed because when using an indicating thermometer the temperature is
not a true average flowing temperature. All meters measuring more than
100 Mcf per day are required to have a temperature recorder. Meters
measuring 100 Mcf per day or less are required to use either a
temperature recorder or an average flowing temperature.
III.D.2. (new) would ensure that the accuracy of the temperature
recording device is maintained.
III.D.3. (formerly C.15.) would be amended for clarification and to
require the recording of readings before and after adjustments are
made. The words ``of the element range'' would be added to make it
clear what the 0 and 100 percent refer to.
III.D.4. (new) would be added to require calibration equipment to
be more accurate than the equipment being calibrated. If the testing
equipment is not more accurate than the equipment being calibrated, the
inherent uncertainty in the metering equipment increases.
III.D.5. (new) would be added to require documentation of the
certification or recertification of calibration equipment to be
available to the authorized officer at the time of calibration.
III.D.6. (formerly C.17.) would be amended to allow meters that
measure 100 Mcf or less per day to be inspected and calibrated
semiannually rather than quarterly. Experience has shown that quarterly
inspections and calibrations of meters measuring such low volumes are
neither cost effective nor necessary to assure an acceptable degree of
accuracy.
III.D.7. (formerly C.18.) would be amended to require operators to
notify the authorized officer of the BLM well in advance of
calibrations to enable the planning of inspections.
III.D.8. (formerly C.19.) would be amended by changing the
reference to ``measuring equipment'' to ``recording device'' to conform
with changes in other requirements. The current Order requires that an
adjustment be made whenever a volume error of 2 percent or greater
occurs. It is proposed to change this standard to ``more than 1
percent'' because volume errors of less than 2 percent on higher volume
wells are very significant. However, in most instances, it will be the
policy of the BLM not to pursue volume errors of less than 200 Mcf per
month, because the cost of doing so would exceed the value of any
additional royalty that might result. The requirement that the meter be
adjusted to zero error would be removed because this is part of the
linearity test requirement in Section III.D.3. For the sake of
simplicity, the abatement period would be stated as 60 days only rather
than also stating the alternative ``prior to completion of
calibration.''
III.D.10. would be added combining several requirements from the
existing Order, as explained below.
III.D.10.a. (formerly C.4.) would be revised to clarify what is
meant by the outer \2/3\ of the chart range. Also, the reference to
sizing the orifice would be removed because doing so is not the only
alternative available to the operator to maintain the differential pen
in the outer \2/3\ of the chart.
III.D.10.b. (formerly C.5.) would be revised to clarify what is
meant by the outer \2/3\ of the chart range.
III.D.10.c. (formerly C.14.) would be amended by revising the
corrective action. It would no longer require recordation of the ``as
found'' and ``as left'' readings, which are meaningless.
III.D.11.a., b., and c. (new) would be added as requirements for
Electronic Flow Computers (EFCs). The requirements for EFCs would be no
more stringent than those for chart recorders. The current static
pressure, differential pressure, and temperature would have to be
displayed on a continuous basis, and the EFC would be required to have
a back-up power source capable of retaining data collected for a
minimum of 35 days.
III.E.3. and 4. (formerly C.25. and 26.) would be amended to make
them read as requirements rather than as descriptions or definitions,
as they appear to do in the existing Order.
Other editorial changes have been proposed to correct errors in the
existing Order and cross-references that must be changed as a result of
the proposed reorganization of the Order.
The principal authors of this proposed rule are Lonny R. Bagley,
Inspection and Enforcement Specialist, Montana State Office, Richard
Estabrook, Petroleum Engineer, Ukiah District Office, California,
Michael Kolling, Petroleum Engineering Technician, Dickinson District
Office, North Dakota, Will Lambert, Petroleum Engineer, Grand Junction
District Office, Colorado, and Larry Bray, Petroleum Engineering
Technician, Roswell Resource Area Office, New Mexico, assisted by the
staff of the Division of Legislation and Regulatory Management, all of
the BLM.
It is hereby determined that this proposed rule does not constitute
a major Federal action significantly affecting the quality of the human
environment, and that no detailed statement pursuant to Section
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)) is required. The Bureau of Land Management has determined
that this proposed rule is categorically excluded from further
environmental review pursuant to 516 Departmental Manual (DM), Chapter
2, Appendix 1, Item 1.10, and that the proposal would not significantly
affect the 10 criteria for exceptions listed in 516 DM 2, Appendix 2.
Pursuant to the Council on Environmental Quality regulations (40 CFR
1508.4) and environmental policies and procedures of the Department of
the Interior, ``categorical exclusions'' means a category of actions
that do not individually or cumulatively have a significant effect on
the human environment and that have been found to have no such effect
in procedures adopted by a Federal agency and for which neither an
environmental assessment nor an environmental impact statement is
required.
This rule has been reviewed under Executive Order 12866.
The Department has determined under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.) that it will not have a significant economic
impact on a substantial number of small entities for the same reasons.
The rule codifies industry standards that apply to all entities in the
industry, regardless of size. The Order would not require a substantial
amount of additional information or monitoring. Some additional
equipment may be required in certain cases, but the total cost of these
changes would not approach the threshold specified in the Executive
Order. Costs to the public should not increase at all as a result of
the Order.
The Department certifies that this proposed rule does not represent
a governmental action capable of interference with constitutionally
protected property rights. There would be no taking of private property
without due process. Failure to abate violations could result in
assessments under the Mineral Leasing Act and/or penalties under the
Federal Oil and Gas Royalty Management Act, and possibly lease
cancellation if the failure continues, but not without due process.
Therefore, as required by Executive Order 12630, the Department of the
Interior has determined that the proposed rule would not cause a taking
of private property.
The Department has certified to the Office of Management and Budget
that this proposed rule meets the applicable standards provided in
section 1(a) and 2(b)(2) of Executive Order 12788.
The information collection requirement(s) contained in Part 3160
that relate to this Order have been approved by the Office of
Management and Budget under 44 U.S.C. 3501 et seq. and assigned
clearance number 1004-0134.
List of Subjects in 43 CFR Part 3160
Government contracts; Mineral royalties; Oil and gas exploration;
Oil and gas production; Public lands--Mineral resources; Indian lands--
Mineral resources; Reporting requirements.
For the reasons stated above, under the authority of the Mineral
Leasing Act of 1920, as amended and supplemented (30 U.S.C. 181 et
seq.), the Department proposes to amend part 3160, Group 3100,
subchapter C, chapter II of title 43 of the Code of Federal Regulations
as set forth below:
PART 3160--ONSHORE OIL AND GAS OPERATIONS
1. The authority citation for part 3160 continues to read as
follows:
Authority: 43 U.S.C. 1733; 30 U.S.C. 181 et seq.; 30 U.S.C. 351-
359; 30 U.S.C. 301-306; 25 U.S.C. 396; 25 U.S.C. 396a-396q, 397,
398, 398a-398e, 399; 43 U.S.C. 1457; see also 40 Op.Atty.Gen. 41; 40
U.S.C. 471 et seq.; 42 U.S.C. 4321 et seq.; 43 U.S.C. 6508; 30
U.S.C. 1701 et seq.; and 25 U.S.C. 2101 et seq.
Subpart 3164--Special Provisions
2. Section 3164.1(b) is amended by revising the fifth entry of the
table to read as follows:
Sec. 3164.1 Onshore Oil and Gas Orders.
* * * * *
(b) * * *
----------------------------------------------------------------------------------------------------------------
Order No. & Subject Effective date Federal Register reference Supersedes
----------------------------------------------------------------------------------------------------------------
* * * * * * *
5. Measurement of Gas.......... [30 days after date of [FR reference for final rule].. None.
publication of final rule].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Dated: September 27, 1993.
Bob Armstrong,
Assistant Secretary of the Interior.
Appendix--Text of Oil and Gas Order No. 5
Note.--This appendix will not appear in the Code of Federal
Regulations.
Onshore Oil and Gas Order No. 5
Measurement of Gas
I. Introduction
A. Authority
B. Purpose
C. Scope
II. Definitions
III. Requirements
A. Required Recordkeeping
B. General
C. Primary Element--Orifice Meters
D. Secondary Element
E. Other Requirements
F. Gas Measurement by Other Methods or at Other Locations
Acceptable to the Authorized Officer
IV. Variances from Minimum Standards
Attachment
I. Sections from 43 CFR Subparts 3163 and 3165
Onshore Oil and Gas Order No. 5
Measurement of Gas on Federal and Indian Oil and Gas Leases
I. Introduction
A. Authority
This Order is established pursuant to the authority granted to the
Secretary of the Interior under various Federal and Indian mineral
leasing statutes and the Federal Oil and Gas Royalty Management Act of
1982. This authority has been delegated to the Bureau of Land
Management and is implemented by the onshore oil and gas operating
regulations contained in 43 CFR part 3160. Section 3164.1 thereof
specifically authorizes the Director to issue Onshore Oil and Gas
Orders when necessary to implement or supplement the operating
regulations and provides that all such Orders shall be binding on the
lessees and operators of Federal and restricted Indian oil and gas
leases which have been, or may hereafter, be issued.
Specific authority for the provisions contained in this Order is
found at: section 3162.4-1, Well records and reports; section 3162.4-2,
Samples, tests, and surveys; section 3162.7-1, Disposition of
production; section 3162.7-3, Measurement of gas; and subpart 3163,
Noncompliance, Assessments, and Penalties.
B. Purpose
One purpose of this Order is to establish requirements and minimum
standards for the accurate measurement of gas by the methods authorized
in 43 CFR 3162.7-3, i.e., measurement by orifice meter or other methods
acceptable to the authorized officer. Accurate gas measurement ensures
that the Federal Government, the general public, State Governments that
share in the proceeds, and Indian mineral owners receive the royalties
due, as specified in the governing oil and gas leases.
Another purpose of this Order is to establish abatement periods for
corrective action when noncompliance with the minimum standards is
detected.
This Order also serves as notice to any party cited for
noncompliance that it may request from the authorized officer an
extension of the abatement period for any violation, provided that the
request for extension is applied for and granted prior to the
expiration of the abatement period previously allowed.
C. Scope
This Order is applicable to all Federal and Indian (except Osage)
oil and gas leases. In addition, this Order is also applicable to all
wells and facilities on State or privately owned mineral lands
committed to a unit or communitization agreement that affects Federal
or Indian interests, notwithstanding any provision of a unit or
communitization agreement to the contrary.
II. Definitions
A. ``Authorized officer'' means any employee of the Bureau of Land
Management authorized to perform the duties described in 43 CFR Groups
3000 and 3100 (see 43 CFR 3000.0-5).
B. ``Business day'' means any day Monday through Friday excluding
Federal holidays.
C. ``Gas'' means any fluid, either combustible or noncombustible,
that is produced in a natural state from the earth and that maintains a
gaseous or rarefied state at standard temperature and pressure
conditions (see 43 CFR 3000.0-5(a)).
D. ``INC'' means incident of noncompliance, which serves as a
Notice of Violation under CFR subpart 3163.
E. ``Lessee'' means a person or entity holding record title in a
lease issued by the United States (see 43 CFR 3160.0-5).
F. ``Major violation'' means noncompliance that causes or threatens
immediate, substantial, and adverse impacts on public health and
safety, the environment, production accountability, or royalty income
(see 43 CFR 3160.0-5).
G. ``Meter uncertainty'' means the overall inaccuracy of a flow
meter caused by the inherent errors of the flow measurement equipment.
H. ``Minor violation'' means noncompliance that does not rise to
the level of a major violation (see 43 CFR 3160.0-5).
I. ``Operating rights owner'' means a person or entity holding
operating rights in a lease issued by the United States. A lessee also
may be an operating rights owner if the operating rights in a lease or
portion thereof have not been severed from record title.
J. ``Operator'' means any person or entity, including but not
limited to the lessee or operating rights owner, who has stated in
writing to the authorized officer that it is responsible under the
terms and conditions of the lease for the operations conducted on the
leased lands or portion thereof.
K. ``Production unit'' means, for purposes of reporting gas
production, a measurement unit of 1000 standard cubic feet (Mcf).
L. ``Standard cubic foot'' means the volume of gas contained in one
cubic foot at a base pressure of 14.73 pounds per square inch absolute,
and at a base temperature of 60 deg. F or 519.67 deg. Rankine (see 43
CFR 3162.7-3).
III. Requirements
A. Required Recordkeeping
The operator shall keep all test data, meter reports, charts/
recordings, or other similar records for 6 years from the date they
were generated, unless the operator is notified that an audit or
investigation involving such records has been initiated. If the
operator is notified that an audit or investigation involving the
records has been initiated, the operator shall maintain the records
until released in writing from the obligation to maintain them. The
authorized officer may request, and the operator shall produce, such
records any time within this period. For electronic flow computers
(EFCs), this includes but is not limited to:
1. Field edits or volume adjustments.
2. Hourly average static and differential pressures, hourly flow
temperatures, hourly sums of extensions calculated at each data point,
hourly volumes, and the method used to obtain the summation of
extensions, averages, and volumes. For the purposes of this Order,
extensions are the square root of the product of the differential
pressure and static pressure.
3. Subsequent edits or adjustments. If several changes are made,
only the original and the final readings shall be retained.
Along with any records submitted at the request of the authorized
officer, the operator shall provide all additional information used to
compute volumes so that computations may be verified.
B. General
All gas production shall be measured in accordance with an
authorized method of measurement. As set out in 43 CFR 3162.7-3, gas
measurement authorized for gas produced from leases, unit areas, and
communitization agreements subject to the jurisdiction of the Bureau of
Land Management, as such jurisdiction is defined in 43 CFR 3161.1, may
be by orifice meter or other methods acceptable to the authorized
officer. The requirements and minimum standards for gas measurement are
set out below. If these requirements for the primary element and chart
recorder are met, a meter accuracy of plus or minus 3 percent will be
attained. However, given the complex components and sophistication of
electronic flow computers (EFCs), no ``cook book'' method can be
established. Therefore, an uncertainty standard of plus or minus 3
percent would be included for EFCs.
The requirements of this Order are based on the standards and
specifications published by the American Gas Association (AGA) and
officially designated as ANSI/API 2530 and AGA Committee Report No. 3,
second edition, 1985, hereafter referred to as AGA Committee Report No.
3. The AGA-published standards and specifications are considered to be
appropriate for proper gas measurement by both the Department of the
Interior and the oil and gas industry. The requirements set minimum
standards necessary to promote conservation of natural resources and to
ensure proper measurement of gas production for sales and allocation
purposes, so that the Federal Government and Indian mineral owners will
receive the royalties due under governing oil and gas leases.
All future sales and allocation facilities and sales or allocation
facilities in existence on the effective date of this Order, unless
covered by a valid variance, shall meet the minimum standards
prescribed in this Order; provided, however, that all gas produced from
or allocated to Federal and Indian (except Osage) oil and gas leases
wherein the gas is measured through sales or allocation meters handling
100 thousand cubic feet (Mcf) per day or less on a monthly basis are
exempt from the standards in section III. C.1., C.2., D.10.a., D.10.b.,
and D.11.c. of this Order. The authorized officer may, where
appropriate and necessary for proper measurement, work with the
operators in designating consolidated gas sales and/or allocation meter
stations.
Meter installations constructed in accordance with the AGA
Committee Report No. 3 standards in effect at that time shall not
automatically be required to retrofit if the standards are revised. The
Bureau will review any revised standards and, when necessary, will
amend the Order through the rulemaking process.
The intent of these minimum standards is to ensure that when
equipment malfunctions occur that could result in inaccurate
measurement, proper corrective actions are taken, the authorized
officer is notified, and a report is submitted.
Failure to comply with these minimum standards will be considered
noncompliance and an incident of noncompliance (INC) will be issued.
Operators who discover noncompliance with these minimum standards and
take immediate corrective action will not be issued an INC. If the
authorized officer or his representative is present when an operator
discovers a malfunction or uses incorrect procedures as specified in
this Order, an INC will be issued unless immediate corrective action is
taken. Failure of equipment will not be considered a violation.
However, the incidents of noncompliance which may result from equipment
failure are considered violations. A partial list of such incidents
follows:
Failure to install equipment properly.
Failure to repair or correct equipment malfunction properly or in a
timely manner.
Failure to submit report of alternate method of sales.
Failure to submit required reports in a timely manner.
Failure to adhere to the minimum standard procedures specified in
this Order.
The use of improper equipment, when discovered, will be considered
a violation and a formal INC will be issued.
The use of improper procedures will be considered a violation and
when witnessed by the authorized officer or his representative,
immediate corrective action will be required. In the event that proper
procedures are then used as required by this Order, and prior to
completing the operation, calibration, or proving, the violation will
be considered as properly corrected. In this case, although the
violation will be documented in the agency files, no INC will be
issued.
The failure to take timely corrective action as required to meet
any standard in this article will be considered either a major or minor
violation in accordance with the classification set out below for each
standard, unless an applicable variance has been granted or the
standards have been otherwise modified in accordance with Article IV.
A major violation, as defined in this Order, will generally require
an immediate shut-in of the metering device. However, where the non-
recoupable loss is not significant or where damage to the resource is
likely to occur if a shut-in is required, an abatement period of 24
hours may be granted by the authorized officer or his representative.
Where abatement is required ``prior to sales or removal,'' action
is required to be taken so that no gas can be removed beyond the
measurement point until properly measured.
C. Primary Element--Orifice Meters
The following are minimum standards for the measurement of natural
gas using orifice meters.
1. For meters measuring more than 100 Mcf per day on a monthly
basis, the orifice to pipe diameter ratio (d/D), or the beta ratio,
with meters using ``flange taps,'' shall be between 0.15 and 0.70.
Violation: Major.
Corrective Action: Install an orifice of such size that subsequent
measurements will be within the appropriate beta ratio range. If
changing the orifice causes the differential pressure to be recorded in
the lower one-third of the chart, then either the meter tube or the
differential element shall be changed, sizing the straight pipe
sections in a manner that will provide subsequent measurement within
the appropriate beta ratio range.
Abatement Period: Prior to sales or removal.
2. For meters measuring more than 100 Mcf per day on a monthly
basis, the orifice to pipe diameter ratio (d/D), or the beta ratio,
with meters using ``pipe taps,'' shall be between 0.20 and 0.67.
Violation: Major.
Corrective Action: Same as C.1. above.
Abatement Period: Prior to sales or removal.
3. To obtain flow conditions as near optimum as possible and
minimize the effects of turbulence in gas flow, the minimum length of
straight pipe preceding and following an orifice, and the use of
straightening vanes, shall conform to the specifications shown in
Figures 4 through 9 of AGA Committee Report No. 3.
Violation: Major.
Corrective Action: Install proper length of pipe where appropriate
or install straightening vanes in accordance with appropriate AGA
Committee Report No. 3 specifications.
Abatement Period: Prior to sales or removal.
4. There shall be no pipe connections between the orifice and the
nearest pipe fitting other than the pressure taps and/or thermometer
wells as specified in AGA Committee Report No. 3.
Violation: Major.
Corrective Action: Replace entire length of pipe ahead of the
orifice meter with pipe of appropriate length and inside smoothness in
accordance with AGA Committee Report No. 3.
Abatement Period: Prior to sales or removal.
5. The difference between the internal diameters of the meter tube
pipe and the orifice fittings shall be within the tolerance limits set
by AGA.
Violation: Major.
Corrective Action: Install properly sized meter tube.
Abatement Period: Prior to sales or removal.
6. For meters measuring more than 100 Mcf per day on a monthly
basis, meter tubes shall be inspected at least every 5 years to ensure
continuing conformance with the meter tube specifications in AGA
Committee Report No. 3. Record results of inspections and take any
necessary corrective actions to bring the meter tube into conformance
with AGA Committee Report No. 3.
Violation: Minor.
Corrective Action: Inspect meter tube for conformance with AGA
Committee Report No. 3, record results of inspection, and take
necessary corrective actions.
Abatement Period: 60 days.
7. Meter tubes using flange taps or pipe taps shall have the
pressure tap holes located as specified in AGA Committee Report No. 3.
Violation: Major.
Corrective Action: Install pressure tap as specified.
Abatement Period: Prior to sales or removal.
8. Orifice plates shall be removed from the flange or plate holder,
and visually inspected for conformance with AGA standards and
specifications, at least semi-annually, during calibration of the
secondary element.
Violation: Minor.
Corrective Action: Remove and visually inspect orifice plate for
conformance with AGA standards and specifications.
Abatement Period: No later than the next meter calibration.
9. Any plate or orifice that is determined not to be in conformance
with AGA standards shall be replaced with one that is in conformance.
Violation: Major.
Corrective Action: Replace orifice plate.
Abatement Period: Prior to sales or removal.
10. All connections and fittings of the secondary element
(including meter pots and meter manifolds) shall be leak tested prior
to conducting tests of the meter's accuracy.
Violation: Minor.
Corrective Action: Stop meter calibration and conduct leak test.
Abatement Period: Prior to completion of calibration.
11. Volumes of gas delivered shall be determined according to the
flow equations specified in AGA Committee Report No. 3.
Violation: Minor.
Corrective Action: Recalculate all gas volumes not determined in
accordance with flow equations specified in AGA Committee Report No. 3.
Submit a report adjusting the volume of gas measured, and showing or
discussing all calculations made in correcting the volumes.
Abatement Period: 60 days.
D. Secondary Element
The following are minimum standards for the secondary element of
the orifice meter.
1. Continuous temperature recorders to measure the flowing gas
temperature are required on all sales and allocation meters measuring
more than 100 Mcf per day on a monthly basis. Meters measuring 100 Mcf
or less per day on a monthly basis shall determine the flowing
temperature of the gas by one of the following:
a. Continuous temperature recorder, or
b. Average flowing temperature, as determined by a method approved
by the authorized officer.
Violation: Major.
Corrective Action: Install temperature measuring device as
required.
Abatement Period: Prior to sales or removal.
2. The temperature recording device shall be tested for accuracy
utilizing one of the following:
a. ``Test well'' in the meter run; or
b. Water bath.
Record ``as found'' readings, make any necessary adjustments, and
record ``as left'' readings.
Violation: Minor.
Corrective Action: Test temperature recording device as specified,
record ``as found'' readings, make necessary adjustments, and record
``as left'' readings.
Abatement Period: Prior to completion of calibration.
3. Differential and static pen accuracy shall be tested for
linearity at zero, at 100 percent of the element range, and at 1 point
within the normal operating range of the differential and static
recordings. Record ``as found'' readings, make any necessary
adjustments, and record ``as left'' readings.
Violation: Minor.
Corrective Action: Test linearity at the required points, record
``as found'' readings, make necessary adjustments, and record ``as
left'' readings.
Abatement Period: Prior to completion of calibration.
4. All calibrating equipment shall be more accurate than the
required accuracy of the equipment being calibrated, as shown in the
documentation required in paragraph 5. Calibration equipment shall be
recertified at least annually.
Violation: Minor.
Corrective Action: Stop calibration, substitute proper calibrating
equipment, and restart calibration.
Abatement Period: Prior to completion of calibration.
5. Documentation of the certification/recertification of the
calibrating equipment shall be available to the authorized officer at
the time of calibration.
Violation: Minor.
Corrective Action: Provide documentation.
Abatement Period: 20 days.
6. The accuracy of the recording device(s) shall be tested
following initial meter installation and following repairs. Meters
measuring more than 100 Mcf per day on a monthly basis shall be tested
at least quarterly. Meters measuring 100 Mcf per day or less on a
monthly basis shall be tested at least semi-annually.
Violation: Minor.
Corrective Action: Test meter for accuracy.
Abatement Period: a. 24 hours for initial meter installation or
following repairs.
b. 30 days to conduct the quarterly or semi-annual meter test, as
applicable.
7. The authorized officer shall be notified in writing of all meter
calibrations. Calibration schedules covering monthly, quarterly,
semiannual, or annual periods shall be submitted at least 10 days prior
to the date of the first calibration on the schedule.
Violation: Minor.
Corrective Action: Submit the calibration schedule, as required.
Abatement Period: Prior to next calibration.
8. If the inaccuracy in the recording device(s) results in a volume
calculation more than 1 percent in error, the volume measured since the
last calibration shall be corrected. However, if the magnitude of the
volume error is less than 200 Mcf per month, it will not be pursued
unless it occurs on a continuing basis. In that case, the meter shall
be adjusted in accordance with Sections III.D.2. and III.D.3. Also, the
operator shall submit a report adjusting the volumes of gas measured,
and showing or discussing all calculations made in correcting the
volumes. The volumes shall be corrected back to the time the inaccuracy
occurred, if known. If this time is unknown, volumes shall be corrected
for the last half of the period elapsed since the date of last
calibration.
Violation: Minor.
Corrective Action: Submit report with adjusted volumes.
Abatement Period: 60 days.
9. All meter calibration report forms shall include the following
information, if applicable, and shall be submitted to the authorized
officer upon request.
a. Name of producer or seller;
b. Name of purchaser;
c. Federal or Indian lease number, communitization agreement
number, or unit name or number and participating area identification;
d. Station or meter number;
e. Meter data (make, differential, and static and temperature
range, recording period);
f. Type of connections (flange or pipe, upstream or downstream
static connections);
g. Orifice data (plate size and ID of meter tube);
h. Time and date of test;
i. Instrument error(s) found and certification of corrections, and
``as found'' and ``as left'' data for all instruments;
j. Signature and affiliation of tester and witness;
k. Remarks.
Violation: Minor.
Corrective Action: Submit amended meter calibration report(s) to
authorized officer, including all required information.
Abatement Period: 15 days.
10. Chart Recorder: The following are minimum standards that only
apply to chart recorders.
a. For meters measuring more than 100 Mcf per day on a monthly
basis, the pen that records differential pressure shall operate in the
outer \2/3\ of the chart range (the physical distance on the chart
measured from zero) for the majority of the flowing period.
Violation: Minor.
Corrective Action: Size the metering equipment so that the
differential pen will record in the outer \2/3\ of the chart range.
Abatement Period: 20 days.
b. For meters measuring more than 100 Mcf per day on a monthly
basis, the static element shall be sized to make the pen that records
the static pressure operate in the outer \2/3\ of the chart range (the
physical distance on the chart measured from zero) for the majority of
the flowing period.
Violation: Minor.
Corrective Action: Size static element so as to cause static pen to
record in the outer \2/3\ of the chart range.
Abatement Period: 20 days.
c. The meter's differential pen arc, the ability of the
differential pen to duplicate the test chart's time arc over the full
range of the test chart, shall be checked during each testing of the
meter's accuracy and adjustments made if necessary.
Violation: Minor.
Corrective Action: Stop meter calibration, check differential pen
arc, make necessary adjustments, and restart calibration.
Abatement Period: Prior to completion of calibration.
d. During testing of the meter accuracy, the static pen time lag
shall be adjusted to ensure independent movement of the static pen in
relation to the differential pen.
Violation: Minor.
Corrective Action: Make appropriate adjustments.
Abatement Period: Prior to completion of calibration.
11. Electronic Flow Computers: The following are minimum standards
that only apply to electronic flow computers (EFCs).
a. The current static pressure, differential pressure, and
temperature shall be displayed on a continuous basis.
Violation: Minor.
Corrective Action: Display required data.
Abatement Period: 30 days.
b. The EFC shall be equipped with a back-up power source capable of
retaining data collected for a minimum of 35 days.
Violation: Minor.
Corrective Action: Install back-up power source capable of
retaining data collected for a minimum of 35 days.
Abatement Period: 30 days.
c. For meters measuring more than 100 Mcf per day on a monthly
basis, the EFC shall be installed, operated, and maintained to achieve
an overall meter uncertainty of within plus-minuse>3 percent.
Violation: Minor.
Corrective Action: Make any necessary changes to bring the overall
meter uncertainty within plus-minuse>3 percent.
Abatement Period: 20 days.
E. Other Requirements
The following are minimum standards that apply to all sales and
sales allocation meter installations.
1. If, for any reason, the measuring equipment is out of service or
malfunctioning so that the quantity of gas delivered is not known, the
volume delivered during this period shall be estimated using one of the
following methods, in this order of priority:
a. Record data on check metering equipment if used in lieu of main
meter recordings. If check meters are not installed or are found to be
recording inaccurately, then
b. Base corrections on the percentage error found during the
instrument test. If that is not feasible, then
c. Estimate the quantity of gas run, based on deliveries made under
similar conditions when the metering equipment was registering
accurately.
Violation: Minor.
Corrective Action: Estimate volumes delivered during those periods
cited using one or more of the approved methods identified in the order
of priority and, where necessary, submit a report showing corrected
volumes.
Abatement Period: 60 days.
2. The Btu content shall be determined at least annually, unless
otherwise required by the authorized officer, by means of (1) a
recording calorimeter, (2) calculations based on a complete
compositional analysis of the gas and the heating value of each
constituent, in accordance with AGA Committee Report No. 3, or (3) any
other method acceptable to the authorized officer. The authorized
officer shall be apprised of the method used for each determination and
be furnished with all needed analytical data or other documentation
upon request. The Btu content most recently determined and used for
royalty purposes shall be reported.
Violation: Minor.
Corrective Action: Determine Btu content and submit a report.
Abatement Period: 30 days.
3. For purposes of measurement and meter calibration, atmospheric
pressure shall be established through an actual measurement or assumed
to be a constant value based on the elevation at the metering station.
Violation: Minor.
Corrective Action: Recalibrate gas meter and submit a report
indicating corrected volumes using the adjusted absolute zero or
properly calculated pressure extensions.
Abatement Period: 30 days.
4. The method and frequency of determining specific gravity shall
be determined by use of one of the following methods:
a. Continuous recording gravitometer;
b. Complete compositional analysis of a spot or cumulative gas
sample determined at least annually.
Violation: Minor.
Corrective Action: Determine specific gravity of gas by approved
method and submit a report with corrected volume.
Abatement Period: 30 days.
F. Gas Measurement by Other Methods or at Other Locations Acceptable to
the Authorized Officer
Using any method of gas measurement other than by orifice meter at
a location on the lease, unit, unit participating area, or communitized
area, requires prior approval from the authorized officer pursuant to
43 CFR 3162.7-3. Other measurement methods include, but are not limited
to:
Turbine metering systems
Positive displacement meter
Pitot tube
Orifice well tester
Critical flow prover
Gas-oil ratio
The requirements and minimum standards for gas measurement on the
lease, unit, unit participating area, or communitized area by an
alternate method of measurement, or at a location off the lease, unit,
unit participating area, or communitized area by either an authorized
or an alternate method of measurement, are as follows:
1. Measurement on the Lease, Unit, Unit Participating Area, or
Communitized Area
A written application for approval of an alternate gas measurement
method shall be submitted to the authorized officer and written
approval obtained before any such alternate gas measurement method is
installed or operated. Any operator requesting approval of any
alternate gas sales measurement system shall submit performance data,
actual field test results, or any other supporting data or evidence
acceptable to the authorized officer, that will demonstrate that the
proposed alternate gas sales measurement system will meet or exceed the
objectives of the applicable minimum standards or will not adversely
affect royalty income or production accountability.
Violation: Major.
Corrective Action: Submit application and obtain approval.
Abatement Period: Prior to sales or removal.
2. Measurement at a Location Off the Lease, Unit, Unit Participating
Area, or Communitized Area
a. A written application for off-lease measurement shall be
submitted to the authorized officer and written approval obtained
before any such off-lease gas measurement facilities are installed or
operated. The application for approval of off-lease measurement shall
justify the location of the measurement facilities at the desired off-
lease location before approval will be granted, but no additional
approval as to the gas sales measurement method is required, provided
measurement is to be accomplished by orifice meter pursuant to the
requirements and minimum standards of this Order.
Violation: Minor.
Corrective Action: Submit application and obtain approval.
Abatement Period: 20 days.
b. If gas measurement is to be accomplished at a location off the
lease, unit, unit participating area, or communitized area by any
alternate measurement method (any method other than measurement by
orifice meter), then the application, in addition to justifying the
location of the measurement facilities, shall also demonstrate the
acceptability of the alternate measurement method pursuant to Section
III.F.1. of this Order.
Violation: Major.
Corrective Action: Submit application and obtain approval.
Abatement Period: Prior to sales.
IV. Variances From Minimum Standards
An operator may request that the authorized officer approve a
variance from any of the minimum standards prescribed in Article III.
All such requests shall be submitted in writing to the appropriate
authorized officer and shall provide information as to the
circumstances warranting approval of the variance(s) requested and the
proposed alternative means by which the related minimum standard(s)
will be satisfied. The authorized officer, after considering all
relevant factors, shall approve the requested variance(s) if it is
determined that the proposed alternative(s) meets or exceeds the
objectives of the applicable minimum standard(s), or does not adversely
affect royalty income or production accountability.
In addition, approval may be given orally by the authorized officer
before the operator initiates actions which require a variance from
minimum standards. The oral request, if granted, shall be followed by a
written request not later than the fifth business day following oral
approval, and written approval will then be appropriate.
The authorized officer may also issue NTLs that establish modified
standards and requirements for specific geographic areas of operations.
After notice to the operator, the authorized officer may also
require compliance with standards that exceed those contained in this
Order whenever such additional requirements are necessary to achieve
protection of royalty income or production accountability. The
rationale for any such additional requirements shall be documented in
writing to the operator.
[FR Doc. 94-149 Filed 1-5-94; 8:45 am]
BILLING CODE 4310-84-P
Complete official Federal Register PDF
FR Doc. 94-136 Special Conditions; Pratt & Whitney Model(s) PW4073 and PW4084 Turbofan Engines
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 703-704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-136]
[[Page Unknown]]
[Federal Register: January 6, 1994]
VOL. 59, NO. 4
Thursday, January 6, 1994
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 33
[Docket No. 93-ANE-66; Notice No. 33-ANE-05]
Special Conditions; Pratt & Whitney Model(s) PW4073 and PW4084
Turbofan Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed special conditions.
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SUMMARY: This notice proposes special conditions for the Pratt &
Whitney (PW) Model(s) PW4073 and PW4048 turbofan engines. The
applicable regulations do not contain adequate or appropriate safety
standards for the protection of these systems from medium and large
bird ingestion. This notice proposes the additional safety standards
which the Administrator considers necessary to establish a level of
safety equivalent to that established by the airworthiness standards
for aircraft engines of the Federal Aviation Regulations (FAR).
DATES: Comments must be submitted on or before February 22, 1994.
ADDRESSES: Comments on this proposal may be submitted in triplicate to:
Federal Aviation Administration (FAA), New England Region, Office of
the Assistant Chief Counsel, Attn: Rules Docket No. 93-ANE-66, 12 New
England Executive Park, Burlington, Massachusetts 01803-5299. Comments
must be marked: Docket No. 93-ANE-66. Comments may be inspected at this
location between 8 a.m. and 4:30 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
John Golinski, Engine and Propeller Standards Staff, ANE-110, Engine
and Propeller Directorate, Aircraft Certificate Service, FAA, New
England Region, 12 New England Executive Park, Burlington,
Massachusetts 01803-5229; telephone (617) 238-7119; fax (617) 238-7199.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed special conditions by submitting such written data, views, or
arguments as they may desire. Communications should identify the Rules
Docket number and be submitted in triplicate to the address specified
under ``ADDRESSES.'' All communications received on or before the
closing date for comments, specified under ``DATES,'' will be
considered by the Administrator before taking action on the proposal.
The proposal contained in this notice may be changed in light of the
comments received.
Comments are specifically invited on the overall regulatory,
economic environmental, and energy aspects of the proposed special
conditions. All comment submitted will be available in the Rules Docket
for examination by interested persons, both before and after the
closing date for comments. A report summarizing each substantive public
contact with FAA personnel concerning this proposal will be filed in
the docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit with those comments a
self-addressed, stamped postcard on which the following statement is
made: ``Comments to Docket No. 93-ANE-66.'' The postcard will be date
stamped and returned to the commenter.
Background
On December 10, 1990, Pratt & Whitney applied for type
certification of PW Model(s) PW4073 and PW4084 turbofan engines. The
FAA has determined that the current foreign object ingestion
requirements of Sec. 33.77(a) for four pound birds; and Sec. 33.77(b)
for one and one-half pound flocking birds, do not adequately represent
the bird threat encountered in service. A study of in-service bird
ingestion events has indicated a need to modify the bird ingestion
requirements of this section to ensure design integrity and demonstrate
an adequate level of safety.
The FAA has concluded that additional safety standards must be
applied to Pratt & Whitney Model(s) PW4073 and PW4048 turbofan engines
to demonstrate that they are capable of acceptable operation after
medium and large bird ingestion. The applicable airworthiness
requirements do not contain adequate or appropriate safety standards
for type certification with respect to the new design criteria. This
new design criteria assumes the actual bird threat encountered in
service.
Type of Certification Basis
Under the provisions of Sec. 21.101 of the FAR, Pratt & Whitney
must show that the PW Model(s) PW4073 and PW4084 turbofan engines meet
the requirements of the applicable regulations in effect on the date of
the application. Those Federal Aviation Regulations are Sec. 21.21 and
part 33, effective February 1, 1965, as amended through August 10,
1990, Amendment 33-14.
The Administrator finds that the applicable airworthiness
regulations in part 33, as amended, do not contain adequate or
appropriate safety standards for the PW Model(s) PW4073 and PW4084
turbofan engines because of its unique design criteria. Therefore, the
Administrator proposes these special conditions under the provisions of
Sec. 21.16 to establish a level of safety equivalent to that
established in the regulations.
Special conditions, as appropriate, are issued in accordance with
Sec. 11.49 of the FAR after public notice and opportunity for comment,
as required by Secs. 11.28 and 11.29(b), and become part of the type
certification basis in accordance with Sec. 21.101(b)(2).
Conclusion
This action affects only PW Model(s) PW4073 and PW4048 turbofan
engines. It is not a rule of general applicability and affects only the
manufacturer who applied to the FAA for approval of these new design
criteria on the engine.
List of Subjects in 14 CFR Part 33
Air transportation, Aircraft, Aviation safety, Safety.
The authority citation for these special conditions continues to
read as follows:
Authority: 49 U.S.C. App. 1354(a), 1421, 1423; 49 U.S.C. 106(g);
14 CFR 21.16, and 14 CFR 11.28.
The Proposed Special Conditions
Accordingly, the Federal Aviation Administration (FAA) proposes the
following special conditions as part of the type certification basis
for the Pratt & Whitney Model(s) PW4073 and PW4084 turbofan engines.
In lieu of the requirements of FAR Sec. 33.77(a) and (b), the
following tests and analyses must be conducted, unless compliance can
be shown by alternate methods acceptable to the Administrator:
(a) It must be shown that the ingestion of a single large bird,
under the conditions prescribed in Appendix A, will not cause the
engine to:
(1) catch fire;
(2) release hazardous fragments through the engine casing;
(3) generate loads greater than those ultimate loads specified
under Sec. 33.23(a);
(4) lose the ability to be shut down; or
(5) generate other conditions hazardous to the aircraft.
(b) Alternatively, if compliance with the bird ingestion
requirements of paragraph (a) of this special condition is not
established, the applicant must demonstrate that compliance with the
containment requirements of Sec. 33.94(a) constitutes a more severe
demonstration than the requirements of paragraph (a) of this special
condition. The engine type certification documentation will then be
endorsed to reflect this alternative compliance method.
(c) It must be shown that the ingestion of medium birds, under the
conditions prescribed in Appendix B, will not cause the engine to:
(1) Sustain more than a 25 percent thrust loss;
(2) Be shut down during the required run-on demonstration
prescribed in Appendix B;
(3) Exceed any engine operating limitations to the extent that the
engine cannot comply with this section; or
(4) Generate other conditions hazardous to the aircraft.
(d) It must be shown that engine spinner impact by one large bird
and by the single largest medium bird, under the respective conditions
prescribed in Appendices A and B, will not affect the engine to the
extent that it cannot comply with the requirements of paragraphs (a)
and (b of this special condition.
Appendix A--Large Bird Ingestion Test Procedures
(a) The test shall be conducted with the engine stabilized at
rated takeoff thrust for the test day ambient conditions prior to
the ingestion.
(b) The test shall be conducted using one eight-pound bird
targeted at the the most critical location and ingested at a bird
speed of 200 knots.
(c) Power lever movement is not permitted within 15 seconds
following the ingestion event.
Appendix B--Medium Bird Ingestion Test Procedures
(a) The ingestion test shall be conducted with the engine
stabilized at rated takeoff thrust for the test day ambient
conditions prior to the ingestion.
(b) The test shall be conducted to simulate a flock encounter,
with all birds ingested within approximately one second, and using
the more severe of the following bird weight/quantity combinations:
(1) Six 1.5-pound and one 2.5-pound birds.
(2) Four 2.5-pound birds.
(c) Bird targeting shall be one 2.5-pound bird at the core
primary flow path, and the remaining birds targeted at critical fan
rotor locations.
(d) Bird ingestion velocity shall be the most critical velocity
between V1 minimum through 250 knots.
(e) Power lever movements between stages must occur in 10
seconds or less. The following test schedule will be used as the
post-ingestion run-on demonstration:
(1) Two minutes with no power lever movement.
(2) Three minutes at 75 percent of takeoff thrust.
(3) Six minutes at 75 percent of maximum continuous thrust.
(4) Six minutes at 50 percent of maximum continuous thrust.
(5) One minute at approach idle.
(6) Two minutes at 75 percent of takeoff thrust.
(7) Retard throttle to idle.
(8) Shut down the engine.
(f) An analysis or component/engine test(s) acceptable to the
Administrator shall be conducted to determine the critical ingestion
parameters for medium bird ingestion that relates to airspeeds from
V1 minimum through 250 knots. The analysis or test(s) must also show
satisfactory engine operation for medium bird ingestion at the most
severe ambient operating condition approved for the engine that may
be experienced in service.
Issued in Burlington, Massachusetts, on December 21, 1993.
Jay J. Pardee,
Acting Manager, Engine and Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 94-136 Filed 1-5-94; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 94-120 Water Quality Standards for Surface Waters of the Sacramento River, San Joaquin River, and San Francisco Bay and Delta of the State of California
[Federal Register Volume 59, Number 4 (Thursday, January 6, 1994)]
[Proposed Rules]
[Pages 810-871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-120]
[[Page Unknown]]
[Federal Register: January 6, 1994]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 131
Sacramento River, San Joaquin River, and San Francisco Bay and Delta,
CA; Water Quality Standards for Surface Water; Proposed Rule
_______________________________________________________________________
Department of the Interior
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 17
Endangered and Threatened Wildlife and Plants: Delta Smelt, Sacramento
Splittail, and Longfin Smelt; Proposed Rules
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[OW-FRL-4783-6]
Water Quality Standards for Surface Waters of the Sacramento
River, San Joaquin River, and San Francisco Bay and Delta of the State
of California
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: On September 3, 1991, the Regional Administrator for Region IX
of the U.S. Environmental Protection Agency disapproved certain water
quality criteria contained in the Water Quality Control Plan for
Salinity for the San Francisco Bay/Sacramento-San Joaquin Delta
Estuary, that was adopted by the California State Water Resources
Control Board on May 1, 1991. These criteria were disapproved because
they failed to protect the Estuarine Habitat and other designated fish
and wildlife uses of the estuary. Under the authority of section 303 of
the Clean Water Act, this document proposes a rule establishing three
sets of federal criteria to protect the designated uses of the estuary:
salinity criteria protecting the Estuarine Habitat and other designated
fish and wildlife uses, a second set of salinity criteria (measured in
electrical conductivity) to protect the Fish Spawning (Striped Bass)
designated use in the lower San Joaquin River, and a set of salmon
smolt survival index criteria to protect the Fish Migration and Cold
Fresh-Water Habitat designated uses in the estuary.
DATES: All written comments received on or before March 11, 1994, will
be considered in the preparation of the final rule. Public Hearings
will be held during the week of February 21, 1994, in Fresno,
Sacramento, and San Francisco, California.
ADDRESSES: Written comments should be addressed to Patrick Wright, Bay/
Delta Program Manager, Water Quality Standards Branch, W-3, Water
Management Division, Environmental Protection Agency, 75 Hawthorne
Street, San Francisco, California 94105.
Both oral and written comments will be accepted at the hearings.
EPA reserves the right to fix reasonable limits on the time allowed for
oral presentations. Written comments are encouraged.
Contact Lois Grunwald, Public Affairs Office, Environmental
Protection Agency, 75 Hawthorne Street, San Francisco, California
94105, 415/744-1588, for further information on hearings.
FOR FURTHER INFORMATION CONTACT: Patrick Wright, Bay/Delta Program
Manager, Water Quality Standards Branch, W-3, Water Management
Division, Environmental Protection Agency, 75 Hawthorne Street, San
Francisco, California 94105, 415/744-1993.
SUPPLEMENTARY INFORMATION: Section 303 of the Clean Water Act, as
amended (hereinafter CWA or the Act), requires each state to adopt
water quality standards consisting of designated uses and instream
water quality criteria to protect such uses for all waters of the
United States located within that state. Section 303(c) of the Act
provides that states shall review and, if appropriate, revise the water
quality standards at least once every three years. Any new or revised
standards adopted by the state are to be reviewed and approved or
disapproved by the U.S. Environmental Protection Agency (EPA or the
Agency). In the event that EPA disapproves a state's standards, and the
state does not make EPA's requested changes within ninety (90) days of
the disapproval, or if EPA determines at any time that revised or new
standards are necessary to meet the requirements of the Act, section
303(c)(4) of the Act states that the Administrator shall promptly
prepare and publish proposed regulations establishing water quality
standards for the applicable waterbodies. The Administrator shall
promulgate any new or revised standards not later than ninety (90) days
after publication of the proposed standards. EPA's regulations for
implementing section 303(c) of the Act are codified at 40 CFR part 131.
Guidance for implementing these regulations is contained in the Water
Quality Standards Handbook (December 1983) and Technical Support
Manual: Waterbody Surveys and Assessments for Conducting Use
Attainability Analyses (Volumes I, II and III).
EPA's proposal is part of a coordinated federal interagency
response to the water management issues in the San Francisco Bay and
Delta. EPA has worked closely with the U.S. Fish and Wildlife Service
(USFWS), the National Marine Fisheries Service (NMFS), and the U.S.
Bureau of Reclamation (USBR) to develop a comprehensive, habitat-
oriented approach to water and fish and wildlife resource management
issues in California. Other components of this interagency initiative
are being announced contemporaneously with EPA's proposal. These
include USFWS actions on petitions to list the longfin smelt and
Sacramento splittail as endangered fish species under the Federal
Endangered Species Act, 16 U.S.C. Secs. 1531 to 1540 (ESA), the USFWS
proposal of critical habitat for the Delta smelt under the ESA, and the
NMFS reclassification of the winter-run Chinook salmon as endangered
under the ESA.
A. Background
The San Francisco Bay/Sacramento-San Joaquin River Delta estuary
(hereinafter the Bay/Delta) is the West Coast's largest estuary. It
encompasses roughly 1600 square miles, and drains over 40 percent of
California. The Bay/Delta is the point of convergence of California's
two major river systems--the Sacramento River system flowing southward
and draining a large part of northern California, and the San Joaquin
River system flowing northward and draining a large part of central
California. These two rivers, together with a number of smaller rivers
flowing directly westward from the mountains, come together in a
network of channels and islands, roughly a triangle 90 miles on each
side, known as the Sacramento-San Joaquin Delta. The rivers converge at
the western tip of the Delta, forming an estuary as fresh water mixes
with marine water through a series of bays, channels, shoals and
marshes and ultimately flowing into San Francisco Bay and then to the
Pacific Ocean.
The Bay/Delta constitutes one of the largest systems for fish
production in the country, supplying habitat for over 120 fish species.
It also comprises one of the largest areas of waterfowl habitat in the
United States, providing a stopover for more than one-half of the
waterfowl and shorebirds migrating on the Pacific Flyway. Within the
boundaries of the Bay/Delta is the Suisun Marsh, the largest brackish
marsh on the West Coast.
The Bay/Delta is also the hub of California's two major water
distribution systems--the Central Valley Project (CVP) built and
operated by the USBR and the State of California's State Water Project
(SWP). Most of the State's developed water--75 to 85 percent--is used
for irrigation purposes by agriculture, irrigating over 4.5 million
acres throughout the State. The Bay/Delta watershed also provides part
or all of the drinking water supply for over 18 million people.
Located solely within the State of California, the Bay/Delta is
subject under state law to the water quality control jurisdiction of
the California State Water Resources Control Board (State Board) and
two regional boards, the Central Valley and San Francisco Regional
Water Quality Control Boards. Under the California regulatory scheme,
the State Board's actions preempt regional board actions to the extent
of any conflicts. Cal. Water Code Sec. 13170.
In 1978, the State Board adopted and submitted to EPA a Water
Quality Control Plan (hereinafter the 1978 Delta Plan) containing a
comprehensive set of water quality standards to protect the designated
uses of the Bay/Delta. The 1978 Delta Plan included water quality
standards for three categories of designated uses: municipal and
industrial, agriculture, and fish and wildlife.1 The 1978 Delta
Plan relied on a key set of criteria to protect fish and wildlife uses:
the striped bass spawning and survival criteria. These criteria were
established to provide minimum salinity and flow conditions to protect
the fishery at levels that would have existed in the absence of the
State and federal water projects (the so-called ``without projects''
level). The striped bass survival criteria were based on a statistical
correlation between a Striped Bass Index (SBI) (a measure of the
relative abundance of young striped bass in the estuary) and two
hydrological variables: (1) Delta outflow (freshwater flowing through
the Delta out to the ocean), and (2) Delta diversions (freshwater
diverted out of the Delta channels for consumptive uses in agricultural
irrigation, municipal and industrial uses). Based on this relationship,
flow (measured in cubic feet per second (cfs) of Delta outflow) and
salinity requirements at critical points in the Bay/Delta were adopted
as criteria. The SBI, although not a formal criteria, was used to
measure and predict the substantive environmental results of
implementing these flow and salinity criteria. The 1978 Delta Plan
emphasized striped bass protection because of the economic importance
and availability of scientific information on this species in the Bay/
Delta, but the Plan also indicated that it considered the striped bass
standards to be a surrogate for protection of other species.
---------------------------------------------------------------------------
\1\The CWA and implementing regulations describe the two
components of water quality standards as ``designated uses'' and
``water quality criteria'' (40 CFR 131.3(i)), whereas California
uses the terms ``beneficial uses'' and ``objectives''. It has been
EPA's and California's longstanding practice to interpret these
terms synonymously. To avoid confusion, this proposal will use the
federal terms ``designated uses'' and ``criteria''.
---------------------------------------------------------------------------
Pursuant to its obligations under section 303(c)(3) of the Act, EPA
reviewed the 1978 Delta Plan in 1980. While EPA approved the Plan, it
was concerned that the 1978 Delta Plan standards would not provide
adequate protection of striped bass and the estuary's fishery
resources. EPA therefore conditioned its approval upon a set of
``interpretations'' of the standards, including commitments by the
State Board to review and revise the 1978 Delta Plan standards
immediately if there were measurable adverse impacts on striped bass
spawning, or if necessary to attain ``without project'' levels of
protection for the striped bass (as defined by an SBI value of 79). EPA
also conditioned its approval on the State Board's commitment to
develop additional criteria to protect aquatic life and tidal wetlands
in and surrounding the Suisun Marsh. The State Board concurred with
these interpretations in its letter to EPA dated November 21, 1980.
In the years since the 1978 Delta Plan was adopted, these standards
have not accomplished the intended goal of maintaining the SBI at a
long term average of 79, the 1978 Delta Plan's estimate of ``without
project'' levels. Indeed, during the 1980's, the SBI averaged
approximately 7.5, and in 1983 and 1985 reached all-time lows of 1.2
and 2.2. Some of the decline in the SBI may be attributable to drought
conditions in the late 1970's and again in the late 1980's. However,
the highest SBI values actually attained since the 1978 Delta Plan was
adopted were only in the teens and 20's, a substantial shortfall from
the stated goal of 79.
The precipitous decline in striped bass is indicative of the poor
health of other aquatic resources in the estuary. Several species have
experienced similar declines, including chinook salmon (the winter-run
of chinook salmon is listed as a threatened species under the ESA, and
is currently proposed for reclassification as endangered), Delta smelt
(recently listed as a threatened species under the ESA) and Sacramento
splittail and longfin smelt (both the subject of a recent petition for
listing as endangered species). The California Department of Fish and
Game (California DFG) recently testified that virtually all of the
estuary's major fish species are in clear decline. (CDFG 1992b, WRINT-
DFG-8)2
---------------------------------------------------------------------------
\2\If a reference was presented to the State Board during one of
its hearings, this preamble will present citations in both the
standard scientific form and in the State Board hearing record form.
Accordingly, the eighth exhibit submitted by California DFG at the
Board's interim water rights hearings in the summer of 1992 is cited
as indicated.
---------------------------------------------------------------------------
As fishery resources continued to decline, EPA on several occasions
expressed its concern to the State Board about the need for standards
to adequately protect these resources. Throughout the first and second
triennial reviews ending in 1981 and 1985, EPA urged the State Board to
review and revise the 1978 Delta Plan in accordance with EPA's 1980
approval letter. At the conclusion of each triennial review, the State
Board made no changes.
After its second triennial review, in a letter to EPA dated June
23, 1986, the State Board acknowledged that the 1978 Delta Plan
standards were not adequate to protect the estuary's fishery resources.
It then outlined the hearing process it was planning for revising the
standards. In response, and as part of its consideration of the State
Board's second triennial review, EPA, on June 29, 1987, sent a letter
to the State Board stating that EPA could no longer approve the striped
bass survival standards (or the related provision allowing relaxation
of the spawning standard in drier years) because these standards did
not adequately protect the designated uses. EPA recognized, however,
that the State Board had initiated new hearings to revise the 1978
Delta Plan standards. EPA therefore indicated that it would await the
results of the new hearings and approve or disapprove the revised
standards after the State Board's submission to EPA of a complete set
of revised standards.
In addition to EPA's review under the CWA, the 1978 Delta Plan also
received intense scrutiny under state law in California state court.
This review culminated in a state appellate decision, United States,
et. al. v. State Water Resources Control Board, 182 Cal. App. 2d 82
(1st Dist., 1986) (known as the ``Racanelli Decision'' after its
author, Judge John T. Racanelli). Among that decision's many holdings
was the conclusion that the 1978 Delta Plan's water quality standards
had been impermissibly limited to those standards that could be
enforced against only the SWP and CVP (instead of against all water
users). The court took notice that the State Board had proposed
hearings to develop revisions to the 1978 Delta Plan, and asked the
State Board to remedy the Plan's shortcomings in those hearings.
Following the first phase of the new hearings, the State Board in
November 1988 issued a draft Plan that included revised salinity and
flow standards to protect the fisheries and other designated uses. The
State Board subsequently withdrew that draft Plan, however, and issued
a revised workplan that served as the basis for the State Board's
present Water Quality Control Plan for Salinity for the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary (1991 Bay/Delta Plan).
In accordance with the revised workplan, the State Board, on May 1,
1991, adopted State Board Resolution No. 91-34, formally approving the
1991 Bay/Delta Plan. The Plan restated the specific designated uses
that had been included in the 1978 Delta Plan and related regional
board basin plans. As restated, the designated uses included the
following: Agricultural Supply, Cold and Warm Fresh-Water Habitat,
Estuarine Habitat, Fish Migration, Fish Spawning, Groundwater Recharge,
Industrial Process Supply, Industrial Service Supply, Municipal and
Domestic Supply, Navigation, Contact and Non-Contact Water Recreation,
Ocean Commercial and Sport Fishing, Preservation of Rare and Endangered
Species, Shellfish Harvesting, and Wildlife Habitat.
The 1991 Bay/Delta Plan, which was submitted for EPA's review on
May 29, 1991, amended certain salinity criteria and adopted new
temperature and dissolved oxygen criteria for specified locations in
the estuary. The changes to the criteria, however, were of minimal
substance. The 1991 Bay/Delta Plan did not revise the earlier 1978
Delta Plan to address EPA's longstanding concerns about adequate
protection for the designated fish and wildlife uses of the Bay/Delta.
On September 3, 1991, EPA approved in part and disapproved in part
the provisions of the 1991 Bay/Delta Plan. EPA's letter found that
``[t]he record * * * does not support the conclusion that the State has
adopted criteria sufficient to protect the designated uses'' of the
estuary. The designated uses at risk, as defined by the State Board,
include Estuarine Habitat, and also Cold and Warm Water Habitat, Fish
Migration, Fish Spawning, Ocean Commercial and Sport Fishing,
Preservation of Rare and Endangered Species, Shellfish Harvesting, and
Wildlife Habitat. In addition to its general finding that the 1991 Bay/
Delta Plan did not contain sufficient criteria to protect the
designated uses, EPA also disapproved the absence of salinity standards
to protect fish and wildlife uses in the Suisun, San Pablo, and San
Francisco Bays and Suisun Marsh, the absence of scientifically
supportable salinity standards (measured by electrical conductivity) to
protect the Fish Spawning uses of the lower San Joaquin River, and the
absence of scientifically supportable temperature standards on the San
Joaquin and Sacramento Rivers to protect the fall-run and winter-run
chinook salmon.
Pursuant to section 303(c)(3) of the Act, the State Board had 90
days to make changes to the criteria disapproved by EPA in its
September 3, 1991 letter. The State Board made no such revisions during
the 90 day period or at any subsequent time. However, in the summer of
1992, the State Board, at the request of the Governor of the State of
California, held hearings for the purpose of establishing interim
measures to protect the natural resources in the Bay/Delta estuary. In
keeping with the CWA's recognition that the states have primary
responsibility for setting water quality standards, EPA participated in
these hearings--rather than proposing federal standards at that time--
in the hope that the hearings would result in state adoption of
approvable standards and preclude the need for a federal rulemaking.
EPA submitted opening and closing statements to the State Board, and
joined with NMFS and USFWS in submitting an Interagency Statement of
Principles. These statements recommended that the State Board adopt a
habitat and ecosystem-based approach to standards that would satisfy
CWA requirements and meet the State Board's goal of reversing the
decline of the estuary's fish and wildlife resources.
At the conclusion of these hearings, the State Board, on December
10, 1992, issued its recommended interim measures in Draft Water Rights
Decision (hereinafter D-1630). The Draft contained new water export
limits and pumping restrictions and ordered ``pulse flows'' to help
transport young migratory fish through the Delta. It also imposed water
conservation measures on agricultural and urban users, and established
a restoration fund financed by user fees to pay for conservation
efforts in the Bay/Delta. Although D-1630 proposed several changes in
the operation of the water facilities affecting the estuary that would
be beneficial to its natural resources, EPA informed the State Board in
its comments dated January 13, 1993, that D-1630, if adopted, would not
satisfy the requirements of the Act. EPA noted that D-1630, a proposed
water rights decision, did not purport to revise the State's water
quality standards at all, and therefore did not affect EPA's prior
decision disapproving the 1991 Bay/Delta Plan. Moreover, EPA noted that
the measures in D-1630 were not tied to specific designated uses in the
estuary (including the Estuarine Habitat, Fish Spawning, and
Preservation of Rare and Endangered Species uses), and that no attempt
had been made to assure that the designated uses would be protected.
Accordingly, EPA found that D-1630 ``meets neither the procedural nor
the substantive requirements of the Clean Water Act.'' After the close
of the comment period for D-1630, the State Board, in response to a
subsequent request by the Governor, declined to adopt D-1630.
In response to the State Board's failure to revise the criteria
disapproved in EPA's September 3, 1991 letter, EPA, pursuant to section
303 (c)(3) and (c)(4) of the Act, is proposing regulations establishing
revised water quality criteria which would in effect supersede and
supplement the disapproved State criteria for purposes of the CWA.
B. Statutory Basis and Purpose
Section 303(c) of the Act requires that state water quality
standards ``* * * be such as to protect the public health or welfare,
enhance the quality of water and serve the purposes of this Act. Such
standards shall be established taking into consideration their use and
value for propagation of fish and wildlife. * * *'' Key concerns of
this statutory provision are the enhancement of water quality and the
protection of the propagation of fish. The ultimate purpose of water
quality standards, as with the other sections of the Act, is to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters. CWA section 101(a).
Under section 303(c) of the Act, a water quality standard for a
specific waterbody consists of two components: a designated use for
which a waterbody is to be protected (such as recreation, fish and
wildlife, or agriculture) and a numerical or qualitative water quality
criterion which supports the designated use.
The Act gives primary responsibility for the adoption of water
quality standards to the states. After adopting its initial water
quality standards, a state is required, no less than every three years,
to review those standards and, if necessary, modify them. Under section
303(c)(1) of the Act, the results of these triennial reviews are to be
submitted to EPA for review and approval or disapproval.
EPA's Water Quality Standards regulations at 40 CFR part 131
specify the requirements for water quality criteria. States must adopt
those water quality criteria that protect the designated use. Such
criteria must be based on sound scientific rationale and must contain
sufficient parameters or constituents to protect the designated use.
For waters with multiple use designations, the criteria shall support
the most sensitive use. (see 40 CFR 131.11(a).
In addition, a state's criteria must be consistent with the state's
antidegradation policy. The federal regulations provide that, at a
minimum, the state must maintain ``[e]xisting instream water uses
[those existing in the waterbody at any time on or after November 28,
1975] and the level of water quality necessary to protect the existing
uses. * * *'' 40 CFR 131.12(a)(1). In order to approve a state's water
quality criteria, EPA must determine whether the state has adopted
``water quality criteria [that are] sufficient to protect the
designated uses.'' 40 CFR 131.6(c).
Section 303(c)(4) of the Act provides that the Administrator shall
promptly prepare and publish proposed regulations establishing a new or
revised standard in either of two situations: First, when the
Administrator has disapproved a state standard under section 303(c)(3)
and the state has not taken corrective action within 90 days; and,
second, in any case where the Administrator determines that a revised
or new standard is necessary to meet the requirements of the Act. Once
promulgated, the federal regulations are applicable to the state's
waters, and, if they are more stringent, have the effect of supplanting
and supplementing the state's standards. However, it is EPA's
longstanding policy that the federal regulations will be withdrawn if a
state adopts and submits standards that in the Agency's judgment meet
the requirements of the Act.
In reviewing California's implementation of its water quality
standards program, EPA has considered the provisions of section 101(g)
of the Act, which restate the long-standing policy of Federal deference
to state water allocation functions: ``It is the policy of Congress
that the authority of each State to allocate quantities of water within
its jurisdiction shall not be superseded, abrogated or otherwise
impaired by this [Act].'' The General Counsel of EPA, in a Memorandum
to Regional Administrators dated November 7, 1978, interpreted this
statutory provision in the context of the water quality standards
program and concluded that ``EPA should therefore impose requirements
which affect water usage only where they are clearly necessary to meet
the Act's requirements.'' See also Memorandum from Robert M. Perry,
General Counsel, to Frederic A. Eidsness, Jr., Assistant Administrator
for Water, dated March 17, 1983 (considering interplay of section
101(g) and the guidelines under section 404(b)(1) of the Act). These
positions of the General Counsel are consistent with the existing
judicial precedent interpreting section 101(g). The leading case
interpreting section 101(g) in light of the other mandates of the CWA,
Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 513 (10th Cir.
1985), held that section 101(g) is only a general policy statement
which ``cannot nullify a clear and specific grant of jurisdiction.''
Id. at 513. The Court then examined the legislative history of the Act
and concluded that ``where both the state's interest in allocating
water and the federal government's interest in protecting the
environment are implicated, Congress intended an accommodation.'' Id.
See also United States v. Akers, 785 F.2d 814 (9th Cir. 1986) (adopting
Riverside in the 9th Circuit on similar facts).
As the discussion above indicates, EPA has attempted to accommodate
the State Board processes procedurally, generally deferring to the
State Board schedules for review and revision of its water quality
standards, even though this State process has continued for almost a
decade and has frequently exceeded the Act's required triennial review
requirements. Similarly, EPA is in this proposal attempting to
accommodate the State's interest substantively. Although the State
Board, in the 1978 Delta Plan, adopted explicit flow criteria, EPA is
refraining from proposing direct revisions to the flow criteria.
Instead, EPA is proposing criteria that describe the habitat conditions
necessary to protect the designated uses of the Bay/Delta. The State
Board still has full discretion to develop implementation measures
attaining those habitat conditions, and still retains full discretion
over the allocation of water necessary to achieve the criteria.
Finally, EPA has fully considered the record developed in the State
Board's 1992 hearings on D-1630 and, to the extent possible, has
incorporated the scientific information presented in those hearings in
the proposed criteria.
The State Board's adoption of the 1978 Delta Plan, and of the
revised Bay/Delta Plan in 1991, were intended to meet the State's
obligations to establish water quality standards under the CWA.
Pursuant to its mandate under section 303(c)(3) of the Act, on
September 3, 1991, EPA disapproved several of the criteria contained in
the State Board's plan. For the reasons outlined herein and in EPA's
letter of September 3, 1991, the Administrator finds that the water
quality criteria adopted by the State fail to protect the designated
uses and the criteria proposed below would meet the requirements of the
Act. Accordingly, pursuant to sections 303(c)(3) and 303(c)(4) of the
Act, the Administrator is proposing the following water quality
criteria applicable to California waters.
C. Proposed Criteria
EPA is proposing three different sets of water quality criteria:
Salinity criteria protecting estuarine habitat in the Suisun Bay area,
salmon smolt survival indices protecting salmon migration, and an
electrical conductivity criterion protecting striped bass spawning on
the lower San Joaquin River. Each set of criteria is intended to
protect a particular designated use or set of uses in the Bay/Delta
estuary. As discussed above, these designated uses were originally
established by the regional boards in the individual basin plans and by
the State Board in its 1978 Delta Plan, and were reaffirmed and
restated in the 1991 Bay/Delta Plan. The discussion below describes
each set of proposed criteria in detail and outlines the scientific
basis for the proposals.
In developing these proposed criteria, EPA has considered the
scientific evidence and testimony presented during the State Board's
1992 hearing process, as well as scientific information from other
sources. In particular, EPA has relied upon the recommendations of the
USFWS, of Dr. Peter Moyle, Professor in the Department of Wildlife and
Fisheries Biology at the University of California at Davis and author
of more than 100 articles and books on the ecology of the inland fishes
of California, and of a distinguished panel of scientists who
participated in a series of workshops sponsored by the San Francisco
Estuary Project (SFEP).
EPA's proposed criteria are consistent with the Interagency
Statement of Principles dated June 15, 1992 and submitted to the State
Board by EPA, USFWS, and NMFS during the Board's 1992 hearings. This
Interagency Statement recommended that the State Board develop a
comprehensive habitat protection approach to restore and maintain the
ecological health of the estuary, and provided a framework for both
interim and long-term standards. The Interagency Statement also
emphasized that there is a consensus among the three federal agencies
that the existing scientific information is sufficient to set criteria
to protect the designated uses of the estuary.
The criteria proposed below are similar to those EPA has outlined
in letters and statements to State and federal agencies, including in
the following: its September 3, 1991 disapproval letter to the State
Board; its June 11, 1992 policy statement and its August 24, 1992
closing statement submitted to the State Board's 1992 hearings; and its
October 29, 1992 letter to USFWS and NMFS. Throughout this process, EPA
has carefully coordinated its actions and proposals with other State
and Federal environmental agencies to achieve a consensus on the water
quality criteria necessary to protect the estuary.
1. Estuarine Habitat Criteria
a. Designated Uses and EPA's Disapproval
The State's 1991 Bay/Delta Plan included ``Estuarine Habitat'' as a
designated use for the Bay/Delta estuary. As described more fully in
the Water Quality Control Plan, San Francisco Bay Basin [2], December
1986, at II-4, this Estuarine Habitat designated use is intended to
provide ``an essential and unique habitat that serves to acclimate
anadromous fishes (salmon, striped bass) migrating into fresh or marine
conditions. This habitat also provides for the propagation and
sustenance of a variety of fish and shellfish, numerous waterfowl and
shore birds, and marine mammals.'' Related fish and wildlife uses of
the Bay/Delta estuary designated by the State Board include Ocean
Commercial and Sport Fishing, Preservation of Rare and Endangered
Species, Shellfish Harvesting, Fish Migration, and Wildlife Habitat. To
protect these designated uses, the 1991 Bay/Delta Plan included
dissolved oxygen and temperature criteria to protect chinook salmon,
outflow and salinity criteria to protect striped bass, and salinity
criteria to protect the managed (non-tidal) areas of Suisun Marsh.
Unfortunately, the specific criteria adopted by the State Board
clearly do not protect the integrity of the Estuarine Habitat
designated use. Although EPA had already many times noted the
inadequacies of the 1978 Delta Plan, the 1991 Bay/Delta Plan made only
minor adjustments to criteria protecting striped bass, salmon, and the
managed portions of the Suisun Marsh, and provided no criteria
specifically addressing the Estuarine Habitat designated use.
The shortcomings of the State Board's criteria are reflected by the
continued deterioration of the estuary's resources. The SBI, used as a
measure of the health of the 1978 Delta Plan's indicator species, has
never attained its targeted value of 79, and instead has plummeted to
unprecedented low values. Recent testimony by the California DFG
indicates that virtually all of the estuary's major fish species are in
clear decline (CDFG 1992b, WRINT-DFG-8). As noted above in the
recitation of the history of the Bay/Delta, many species relying on the
estuarine habitat are listed or are being considered for listing under
the ESA. One recent report suggests that at least five of the estuary's
fish species (longfin smelt, spring-run Chinook salmon, Sacramento
splittail, green sturgeon, and Red Hills roach) qualify for immediate
listing under the ESA (Moyle and Yoshiyama 1992), in addition to the
already listed winter-run Chinook salmon and Delta smelt.
California's Gov. Wilson highlighted the seriousness of the
problems in the Bay/Delta when he announced his new water policy on
April 6, 1992.
California has many species with populations in serious decline,
and some faced with extinction. Both existing and proposed water
projects often have an impact upon protected animal and plant
species. * * *
* * * * *
[A]ny program must begin by recognizing a disturbing truth: The
Delta is broken.
Gov. Wilson also outlined the kinds of measures necessary to
protect the Bay/Delta: ``If we are to be good stewards of our fish and
wildlife, we must begin to mitigate these impacts by providing larger
streamflows, greater Delta outflow, restoration of spawning gravel and
provision of fish screens and temperature control measures.'' In
response to Gov. Wilson's proposal, the State Board initiated the D-
1630 process, the ``immediate goal'' of which was ``to halt the decline
and increase the protection of public trust resources where
reasonable.'' (SWRCB 1992b). However, as explained above, California
abandoned the D-1630 process, and the State Board has yet to develop
criteria that adequately protect the Estuarine Habitat designated use.
In its disapproval letter of September 3, 1991, EPA formally found
that the set of water quality criteria adopted by the State Board in
the 1991 Bay/Delta Plan failed to protect the Estuarine Habitat and
other designated fish and wildlife uses of the estuary.
To be consistent with the Clean Water Act and the accompanying
Regulations, the State's [criteria] must be sufficient to protect
Estuarine Habitat and other designated fish and wildlife uses. The
Estuarine Habitat use, which has been formally approved by the State
and EPA as part of the State's water quality standards, was
established to provide ``an essential and unique habitat that serves
to acclimate anadromous fishes (salmon, striped bass) migrating into
fresh or marine conditions. This habitat also provides for the
propagation and sustenance of a variety of fish and shellfish,
numerous waterfowl and shore birds, and marine mammals. Water
Quality Control Plan, San Francisco Bay Basin(2), December 1986, at
II-4.
* * * * *
* * * * *
The record * * * does not support the conclusion that the State
has adopted criteria sufficient to protect the designated uses.
Accordingly * * * I hereby disapprove the current set of [criteria]
contained in the State Board's Bay/Delta Plan because they fail to
protect the Estuarine Habitat and the other designated fish and
wildlife uses of the estuary.
Given the State Board's failure to address EPA's concerns either
directly or in the D-1630 process, EPA is proposing to supplement the
State's criteria with additional salinity criteria to protect the
Estuarine Habitat designated use and related fish and wildlife uses of
the estuary described above. EPA is emphasizing the Estuarine Habitat
designated use because of its importance to the whole spectrum of fish
and wildlife uses in the estuary. This emphasis is consistent with the
Interagency Statement of Principles' recommendation that restoration
efforts focus on habitat protection. The discussion below describes the
scientific basis for salinity criteria and presents EPA's conclusions
as to this proposal.
b. Developing Salinity Criteria
In developing proposed criteria protecting Estuarine Habitat, EPA
has considered the complex hydrological and biological nature of the
Bay/Delta estuarine system. Habitat conditions in the estuary change
from month to month and year to year primarily in response to
precipitation upstream, reservoir operations, agricultural patterns and
export rates (Nichols et al. 1986). Many important environmental
characteristics within the Delta and Bay respond to changes in water
availability, storage and use. The environmental characteristics of
particular biological importance include flow rates and volumes within
river channels and the Bay, salinity and turbidity levels, water
temperature, and the degree of stratification of the water column.
Correlations among all these variables are high; thus, each is often a
good indicator of the other. However, other factors such as wind, tidal
stage, and antecedent conditions influence the day to day values of
each variable.
When EPA disapproved the State's criteria on September 3, 1991, it
suggested that the State could develop approvable replacement criteria
using a number of alternative methodologies: it could adopt additional
salinity and temperature criteria, adopt revised flow criteria, adopt
biological criteria, or develop a combination of these or other
scientifically-defensible criteria protecting the designated Estuarine
Habitat and fish and wildlife uses in the estuary. Upon the State's
failure to revise its criteria during the statutory 90 day period (or
during the D-1630 process), EPA began developing a federal proposal for
criteria protecting the applicable designated uses.
(1) Entrapment Zone. The ``entrapment zone'' was the focus of EPA's
initial consideration of water quality criteria due primarily to its
perceived importance to the food chain. The entrapment zone, where
ocean water flowing landward at depth mixes with freshwater flowing
seaward at the surface (Kimmerer 1992), is widely acknowledged to be
one of the most important habitats within the estuary. Salinities are
usually between 2 and 10 ppt, turbidity and phytoplankton densities are
high, and young fish of several species are most abundant in this zone.
One of the most important aspects of the entrapment zone is the
localized high density of prey. The closest association of predator and
prey with the entrapment zone is shown by Delta smelt and its principal
food item, the copepod Eurytemora affinis (Moyle et al. 1992).
Similarly, young striped bass and their principal food item, the shrimp
Neomysis affinis, are found in the greatest abundance in salinities
between 2 and 10 ppt. (Heubach 1969, Siegfried et al. 1979, Orsi and
Knutson 1979, Knutson and Orsi 1983, Orsi and Mecum 1986, Obrebski, et
al. 1992). Many young fish require high food densities in order to
obtain sufficient food for growth (Moyle and Cech 1988), and it has
been suggested that the density of food in the entrapment zone may
affect fish survival and abundance. However, no direct evidence of
starvation has been demonstrated for the declining fish populations of
the estuary (Bennett et al. 1990, Moyle et al. 1992). The location of
the entrapment zone has also been shown to be important for organisms
at lower trophic levels (that is, organisms that are lower on the food
chain). Phytoplankton densities are higher when the entrapment zone is
within the relatively-shallow Suisun Bay than when it is further
upstream in deeper channels (Arthur and Ball 1980). Measurements of
phytoplankton growth rates show that shallow areas are ten times as
productive as channel areas (Cloern et al. 1983).
In large part because of the relationship between fishery
productivity and the entrapment zone described above, EPA initially
considered developing federal criteria designed to directly maintain
and protect the entrapment zone. However, as described below,
discussions among the participants in a workshop convened by the SFEP
suggested that salinity criteria would be a more appropriate measure
for protecting estuarine habitat.
(2) San Francisco Estuary Project Workshop Findings. The SFEP is a
five-year cooperative effort by over 100 representatives of public and
private entities concerned about the water quality and natural
resources of the San Francisco Bay estuary. Funded primarily by EPA and
the State of California, the SFEP has developed a Comprehensive
Conservation and Management Plan to protect the natural and consumptive
water uses of the Bay/Delta (SFEP 1993a). In 1991 and 1992, the SFEP
convened a series of workshops to develop the scientific rationale for
an estuarine index that would measure the responses of estuarine biota
and habitats to various conditions of salinity and flow. The workshops
involved approximately thirty scientists and policy makers with
expertise in estuarine ecology and water resource management, and
included several of the world's most distinguished estuarine
scientists. The group focused its attention on the estuary between
Carquinez Strait and the confluence of the Sacramento and San Joaquin
Rivers. The specific operations of the water projects (water exports,
gate closures, etc.) were not directly addressed by the group.
The findings of the workshops were assembled in a final report,
Managing Freshwater Discharge to the San Francisco Bay/Sacramento-San
Joaquin Delta Estuary: The Scientific Basis for an Estuarine Standard
(SFEP 1993b) (SFEP Report). All of the conclusions and recommendations
in this report were endorsed by a consensus of the estuarine scientists
and managers who participated in the final workshop in August of
1992.3
---------------------------------------------------------------------------
\3\The SFEP Report defined ``consensus'' as follows: ``The term
consensus is used to represent group solidarity on an issue; a
judgement arrived at by most of the scientists and managers present.
In all cases, the consensus was unanimous or nearly unanimous.''
SFEP Report, at p. 3. EPA recognizes that representatives from a
number of the participating organizations (the State Water
Contractors, the California Department of Water Resources
(California DWR), the State Board, and the USBR) subsequently
withdrew their names from the final SFEP Report. According to the
Final Report, the conclusions are based on the consensus that was
achieved by the participants at the workshops.
---------------------------------------------------------------------------
Although the workshop group initially focused on the entrapment
zone, they concluded that salinity would be a more appropriate index
for the development of estuarine standards. Salinity was selected for
several reasons: It is of direct ecological importance, it can be
measured accurately and easily, and it integrates a number of important
estuarine properties and processes. In particular, it is closely
associated with the abundance and distribution of species at all
trophic levels (SFEP 1993b). The workgroup further concluded that the
placement of the 2 parts per thousand isohaline\4\ should be used to
develop estuarine standards.
---------------------------------------------------------------------------
\4\An ``isohaline'' is defined as a theoretical or imaginary
line in the estuary connecting all points of equal salinity. For
example, the phrase ``2 near-bottom isohaline'' means a
line stretching across the Delta marking the positions where the
salinity of the near-bottom water is 2 parts per thousand. The
position of an isohaline in an estuary changes dramatically during
the day because of rising and falling tides, which sometimes move
the isohaline as much as 5 miles up or downstream during a 24 hour
period. By convention, a daily isohaline is measured at its daily
mean position for the 24 hour period.
---------------------------------------------------------------------------
Because of the broad spectrum of scientific expertise underlying
the SFEP Report, its conclusions and recommendations are included in
full as appendix I. For purposes of developing water quality criteria
protecting Estuarine Habitat, the following conclusions and
recommendations are especially relevant:
* * * * *
(2) Conclusion
Estuarine standards to be used in conjunction with flow
standards should be based upon an index that is simple and
inexpensive to measure accurately, that has ecological significance,
that integrates a number of important estuarine properties and
processes, and that is meaningful to a large number of
constituencies.
Recommendation
Salinity should be used as an index for the development of some
estuarine standards.
(3) Conclusion
Salinity measured at about 1m above the bottom5 is an index
upon which estuarine standards should be developed. The index is a
practical way of tracking changes in habitat.
---------------------------------------------------------------------------
\5\Because the difference between surface and near-bottom
salinities is small and because the relationship between them is
reasonably well known, surface salinity could also be used. Near-
bottom salinity is recommended, however, because it is a more stable
indicator. [Footnote in the original.]
---------------------------------------------------------------------------
Recommendation
Standards should be developed using an index that establishes an
upstream limit of the position of the 2 near-bottom
isohaline, averaged over different periods of the year.
* * * * *
(7) Conclusion
The position of the near-bottom 2 salinity isohaline
is an index of habitat conditions for estuarine resources at all
trophic levels, including the supply of organic matter to the food
web of Suisun Bay, an important nursery area. In other words, well-
behaved statistical relationships exist between the near-bottom
2 isohaline and many estuarine resources for which
sufficient data exist to make appropriate analyses. Moreover, at
least a rudimentary understanding exists for the causal mechanisms
underlying many of these relationships. The location of the near-
bottom 2 isohaline is important either because it is a
direct causal factor or because it is highly correlated with a
direct causal factor (e.g., diversions).
Preliminary analyses show that errors in prediction using models
which incorporate only the position of the 2 isohaline are
comparable to the errors using more complex models which incorporate
additional flow-related variables. In other words, given the present
data sets, predictive models using only the position of the near-
bottom 2 isohaline perform as well as more complex models
that incorporate other variables. However, some of these other
variables may be very important in affecting habitat and the
condition of biological resources of the estuary.
Recommendations
At this time, the most appropriate basis for setting salinity
standards for the portion of the estuary on which this report
concentrates is the position of the near-bottom 2
isohaline alone, unless it can be shown either that another variable
is the controlling variable or that incorporation of additional
variables improves the predictive capability.
* * * * *
(10) Conclusion
The actual setting of salinity standards--specifying the
upstream locations of the near-bottom 2 isohaline for
different periods of the year--should be keyed to environmental
goals: to achieving and sustaining some desired biological response
level specified in terms of habitat protection or abundance and
survival rates of important and diagnostic estuarine and wetland
species.
Recommendations
Goals should be expressed in terms of desired conditions for
some future time. Progress toward those goals should be monitored
and reported widely. Environmental goals for the estuary will be
most effective if they are expressed in terms of restoring
conditions to those that existed at specific historical times. . . .
In developing these conclusions, the workshop participants relied
in part on a series of papers developed by Dr. Alan Jassby of the
University of California at Davis and Dr. Wim Kimmerer of BioSystems
Analysis, Inc. These papers concluded that the position of the 2 ppt
isohaline is closely associated with the abundance of estuarine
organisms at all trophic levels, as well as with the supply of organic
matter from phytoplankton production and riverine loading
(phytoplankton POC). The estuarine organisms include primary and
secondary zooplankton consumers (Neomysis and Crangon), a major group
of benthic consumers in Suisun Bay (mollusks), bottom-foraging fish
(starry flounder), and both survival (striped bass) and abundance
(striped bass and longfin smelt) of fish that feed in the water column.
For each of these organisms, with the exception of mollusks, abundance
levels increase as the position of the 2 ppt isohaline is located
farther downstream (Jassby 1993).
The SFEP's final report cautioned that these correlations are
not proof of cause and effect relationships. That is, the report did
not attempt to identify the causal mechanism linking the salinity
regime and the abundance of estuarine organisms. Further, the report
did not address other factors unrelated to water quality, such as
overfishing, that may also have an impact on abundance of certain
aquatic resources. Nevertheless, salinity integrates a number of
important estuarine properties, is easy to measure, and is readily
understood by all interested parties. The particular value of 2 ppt
near-bottom salinity was selected because it occurs near the
upstream limit of marine salt penetration, is higher than salinities
derived from agricultural runoff, is close to the entrapment zone
and is associated with little stratification of the water column.
The group concluded that the location of the 2 ppt isohaline,
measured as kilometers upstream from the Golden Gate Bridge, is the
most appropriate index of habitat conditions underlying the
variability in biological resources (SFEP 1993b).
These findings in the SFEP workshop reports are entirely
consistent with other scientific work in the Bay/Delta. For example,
Dr. Peter Moyle testified to the State Board that nursery habitat
(represented by areas of low salinity) in Suisun Bay is now more
important than it was historically due to the high risks of
entrainment6 faced by fishes in the Delta. After discussing a
variety of mechanisms that may be behind the declines of most
aquatic populations of the upper estuary, Dr. Moyle concluded that
``[w]hile the exact mechanisms that account for the importance of
having the [entrapment] zone in Suisun Bay (increased food supplies,
physical concentration of organisms, association with higher flows,
etc.) are being debated, there seems little doubt that many fish
species depend on this location for their long-term survival''
(Moyle 1992, WRINT-NHI-9). Dr. Moyle recommended that in wetter
years the zone of low salinity habitat should be located near Roe
Island but that in drier years this requirement could be shifted
upstream to Chipps Island. In addition, the USFWS cited the
importance of low-salinity habitat in Suisun Bay in the January to
June period in its 1991 proposal to designate critical habitat for
Delta smelt under the ESA. 56 FR 50075 (October 3, 1991).
---------------------------------------------------------------------------
\6\Strictly defined, ``entrainment'' is the displacement of fish
or other aquatic organisms from their location in one waterbody to
another as a result of the operation of a water diversion. In the
Bay/Delta, however, the term ``entrainment'' is generally used to
refer to the destruction of fish or larvae at the intake mechanisms
of the many water diversion facilities in the Delta. Most
entrainment occurs when fish or larvae are pulled into screens or
pumps by the diversion apparatus.
---------------------------------------------------------------------------
c. Ecological Significance of Salinity Levels
EPA is selecting the 2 ppt isohaline as the basis for its proposed
criteria in part because that isohaline incorporates a whole range of
factors relevant to the estuary's health, even though the operation of
some of these factors is not fully understood. Some species that show
high correlations with the location of the 2 ppt isohaline are not
abundant in low salinity habitat and are probably responding to river
flow or other correlated factors. However, salinity in the 2 ppt range
is clearly and directly important to a broad range of estuarine species
and the location of this salinity is strongly associated with the
abundance and distribution of many of these species. The SFEP Report
emphasized that it is well established scientifically that salinity has
direct ecological importance to many estuarine species in this estuary
and others throughout the world (SFEP 1993b). In fact, much of the
distribution of estuarine species can be explained by their association
with specific salinity ranges and their ability to survive and
reproduce within certain salinity limits. The following sections
summarize the best available evidence on the direct effects of the
location of low salinity habitat on the distribution and abundance of
key species and habitats within the Bay/Delta estuary. This scientific
evidence provides substantial support for the need for the proposed
salinity criteria protecting the water quality necessary to sustain the
ecological health of the estuary.
--Delta smelt. Delta smelt (Hypomesus transpacificus) are found
today only in the upper reaches of the Sacramento-San Joaquin estuary.
Early studies by the California DFG of the two most abundant smelts,
longfin smelt and Delta smelt, noted that changes in the historical
location of the entrapment zone would threaten populations of both
species (Broadway 1979). In its initial notice of petition findings for
the listing of the Delta smelt as threatened under the ESA, the USFWS
found that ``the annual export of 6 million acre-feet of water by
Federal, State and private agencies has allowed the intrusion of higher
salinity seawater to the marshes. Because of higher salinities, the
Delta smelt has lost spawning and nursery areas in Suisun Bay and
Suisun Marsh.'' 55 FR 52852, 52853 (December 24, 1990). The final rule
listing Delta smelt as a threatened species found that embryonic,
larval and post-larval mortality rates increase as salinities in the
western Delta increase and the entrapment zone moves upstream. Delta
smelt larvae survive and grow best when the entrapment zone occupies a
broad geographic area with extensive shallow areas. Delta smelt
reproduction has probably suffered in recent years because the
entrapment zone has been located east of Suisun Bay. 58 FR 12854 (March
5, 1993).
In the proposal to list the Delta smelt as a threatened species,
the USFWS identified critical habitat for the species as requiring
salinities less than 2 ppt in Suisun Bay from January through June. 56
FR 50075, 50079 (October 3, 1991). When listing the Delta smelt as
threatened, the USFWS deferred designation of critical habitat until
October 1993. In summarizing the factors affecting Delta smelt, the
USFWS concluded that the biological characteristics of the species made
it very sensitive to perturbations in its reproductive habitat and
larval nursery grounds. The final listing notice further determined
that Suisun Bay is the primary nursery habitat for this species and
that the habitat has been degraded because of higher salinities in the
spring due to upstream freshwater diversions. 58 FR 12854, 12860 (March
5, 1993).
The USFWS's conclusions were also supported by an interagency Delta
smelt working group convened by the USFWS after its proposal to list
the species under the ESA. The working group included representatives
of USFWS, EPA, USBR, California DFG, and the California DWR. The
working group developed several recommendations to increase abundance
levels of Delta smelt, including maintaining the 2 ppt zone in Suisun
Bay during the Delta smelt's early months of life. The working group's
recommendation was that low salinity habitat be kept in Suisun Bay in
all years; no attempt was made to adjust the position of the zone to
account for dry year conditions (USFWS 1992f, WRINT-USFWS-15).
The USFWS's proposed critical habitat designation has been
supported by a recently published paper by biologists of the California
DFG and the University of California at Davis. The authors concluded
that Delta smelt are most abundant in low salinity water associated
with the entrapment zone. During the years preceding their decline,
Delta smelt were found most abundantly at sites where low salinity
conditions coincided with shallow habitats. Since their decline, low
salinity conditions have been found in areas where little shallow
habitat is available. The principal conclusion of these authors was
that ``[r]estoration of the Delta smelt to a sustainable population
size is likely to require maintenance of the [entrapment] zone in
Suisun Bay and maintenance of net seaward flows in the lower San
Joaquin River during the period when larvae are present'' (Moyle et al.
1992).
The State Board's 1991 Bay/Delta Plan also acknowledged that the
location of the 2 ppt isohaline is important for Delta smelt, finding
that ``existing knowledge suggests that salinities of 2 ppt or less are
desired in Suisun Bay from March through June.'' However, rather than
adopting protective salinity criteria, the State Board suggested that
protection of low-salinity habitat would be dealt with as a ``flow''
issue in the subsequent scoping and water rights phases of its
proceedings (1991 Bay/Delta Plan, p. 5-44). As explained in more detail
above, to date the State Board has failed to adopt any additional
standards since its 1991 Bay/Delta Plan.
--Striped Bass. Striped bass (Morone saxatilis) support one of the
most economically important sportfisheries in the Bay/Delta estuary.
The striped bass population (and consequently the number of anglers)
has plummeted since the early 1970's, with populations declining by as
much as 70 percent from historical levels (Stevens et al. 1985; White
1986; CDFG 1992b, WRINT-DFG-8). Although striped bass populations exist
elsewhere in entirely freshwater habitats, the species thrives only in
estuarine conditions (Talbot 1966), and in the Sacramento-San Joaquin
estuary low salinity habitat appears to provide important nursery
grounds (Wang 1986). Adult striped bass migrate upstream to spawn in
fresh water. The planktonic larvae are carried downstream and
concentrate in areas of low salinity (Moyle 1976). When this low
salinity zone is located in Suisun Bay, survival of young bass is
improved (Turner and Chadwick 1972). As a result, several parties have
recommended that the entrapment zone be maintained in Suisun Bay to
improve striped bass year class survival (Moyle 1992, WRINT-NHI-9; USBR
1991, WRINT-USBR-2; USFWS 1992d, WRINT-USFWS-19; USFWS 1992e, WRINT-
USFWS-20; Moyle and Herbold 1989; Moyle, et al. 1989).
Other factors, including year-to-year variations in outflow and
exports, have also contributed to the decline of the striped bass
population. California DFG has developed a model suggesting that export
limitations also are necessary to preserve the striped bass fishery.
Accordingly, California DFG's recent recommendations to protect striped
bass have focused on reducing entrainment of fish, eggs and larvae in
water pumps operated by the SWP and the CVP, rather than on maintaining
protective salinity conditions (CDFG 1992e, WRINT-DFG-3; D-1630).
However, according to a series of papers developed for the SFEP-
sponsored workshops, models that are based on the downstream extent of
low salinity habitat are at least as accurate in predicting striped
bass abundance as the California DFG model based on flows and exports
(Jassby, in SFEP 1993b; CDFG 1992e, WRINT-DFG-3). The studies cited
above suggest that, regardless of the effects of entrainment at the
diversion pumps, low salinity nursery habitat in Suisun Bay is
important and that this habitat has sharply declined in recent years.
Based on these studies, EPA believes that salinity criteria in Suisun
Bay are necessary to protect nursery habitat of the striped bass.
--Sacramento splittail. Sacramento splittail (Pogonichthys
macrolepidotus) are now restricted to the lower reaches of the rivers
flowing into the Sacramento-San Joaquin Delta and the upper regions of
the San Francisco Bay complex, particularly Suisun Bay and Suisun Marsh
(Moyle 1976; Moyle 1980). Historically, this species occurred
throughout the lowlands of the Sacramento Valley, but diking and
dredging have eliminated 96% of the wetland habitats this species
appears to require (Meiorin et al. 1991). Currently, the population
lives largely in the shallow, low salinity habitat of Suisun Bay and
Marsh but in early spring adults migrate upstream through the Delta to
spawn near the mouths of the rivers along the Delta's eastern edge
(Daniels and Moyle 1983). Although this migration pattern predominates
for most of the splittail, lower concentrations of the species can be
found in most locations in the Delta throughout the year.
In recent years, fewer numbers of newly-spawned splittail have
moved across the Delta, back to Suisun Bay. Recent severe declines in
regions in which splittail were formerly abundant resulted in the
filing of petitions to list the species as endangered under the ESA. 50
FR 36184 (July 6, 1993). The only other member of the genus, found in
Clear Lake, California, became extinct in the early 1970's.
No physiological studies have been done to determine the specific
salinity tolerances of the splittail, but it is likely that high
salinities restrict their downstream range. The scarcity of shallow
habitats upstream and the increase of salinity in Suisun Bay and Suisun
Marsh have greatly restricted the habitat required by this species.
Sacramento splittail recruitment displays a strong relationship to
annual outflow (Daniels and Moyle 1983). The exact mechanism that
results in this relationship is unclear; years of higher outflow
provide better cues to direct successful migration upstream by adults,
larger areas of flooded vegetation on which the adults can spawn
(Caywood 1974), higher flows to transport the newly spawned young
downstream, and larger areas of suitable habitat in Suisun Bay and
Suisun Marsh. Protection of historical habitat conditions in the Bay/
Delta through the implementation of the proposed salinity criteria
should therefore provide indirect protection for all the needs of this
species that depend on outflow.
--Estuary dependent species. In addition to Delta smelt and striped
bass, several other fish species are dependent on brackish-water
nursery habitat. The juveniles of these species, collectively referred
to as ``estuary dependent species'' by the California DFG, live
predominantly downstream of the Delta within a salinity range of
approximately 0 to 22 ppt, although the range varies somewhat by
species. This habitat is larger than the nursery habitat for Delta
smelt and striped bass, but nevertheless has substantially diminished
in size as water has been diverted and stored for upstream uses.
Three of these species, bay shrimp (Crangon franciscorum), starry
flounder (Platichthys stellatus), and longfin smelt (Spirinchus
thaleichthys), depend on brackish-water nursery habitat for a
significant portion of their life cycles. Bay shrimp and starry
flounder are important components of commercial and sport fisheries,
and their protection is important to maintain the State's Ocean
Commercial and Sport Fishing designated uses, as well as the Estuarine
Habitat designated use.
The bay shrimp is the largest shrimp species in the estuary, and
has been the most numerous, except during recent prolonged drought
conditions, when abundance has been very low. It supports a commercial
bait fishery in the Bay, and is an important food source for the larger
fish of the estuary. Reproductive adults and larvae are found in the
more marine habitats of Central San Francisco Bay and nearshore Gulf of
the Farallones. Transforming larvae and early juveniles move into the
Bay from the nearshore ocean, and maturing juveniles are mainly found
in warm, shallow, brackish water areas (2 to 22 ppt) of the estuary
(CDFG 1992; WRINT-DFG-6).
Starry flounder also use the brackish areas of San Francisco Bay as
nursery habitat. After moving into the Bay as transforming larvae from
the nearshore ocean during the spring, young-of-the-year juvenile
flounder (smaller than 70 mm) are found primarily in warm shallows
where salinities are less than 22 ppt (CDFG 1992, WRINT-DFG-6). By the
second year of life (1+), the fish have moved out of fresh water
completely and are concentrated in the brackish water areas of the Bay.
By the third year of life (2+) they have spread throughout the higher
salinity areas, and many have migrated out of the Bay.
Starry flounder supports both a commercial and recreational fishery
in the San Francisco Bay area. Commercial catch has varied between 486
thousand pounds in 1980 to a minimum of 40 thousand pounds in 1990.
Although starry flounder are a small component of the flatfish catch (2
percent by weight), they are second only to California halibut in price
per pound at the dock (CDFG 1992, WRINT-DFG-6). Commercial passenger
fishery total catch and catch per unit effort in San Pablo Bay have
declined dramatically since the mid-1970's. Abundance of starry
flounder young-of-the-year and one-year-olds (1+) has been consistently
low since 1986, and older starry flounder (two years old and older)
have also declined in the Bay since the mid-1970's, based on Commercial
Passenger Fishing Vessel logs (CDFG 1992, WRINT-DFG-6).
Until recently, longfin smelt has been one of the most abundant
fish species in the estuary. This species spawns in freshwater, and
larvae and juveniles smaller than 50 mm are predominantly found in
brackish water with bottom salinities less than 18 ppt. According to
California DFG, water with less than 18 ppt salinity in the spring
months of March through June constitutes important nursery habitat for
longfin smelt (CDFG 1992, WRINT-DFG-6). Recent populations of longfin
smelt have been very low, and in 1991 the population reached the lowest
number ever recorded since monitoring was initiated in 1967. As a
result, this species has been the subject of a petition for listing
under the ESA. See Petition for Listing Under the Endangered Species
Act--Longfin smelt and Sacramento splittail, National Heritage
Institute (November 5, 1992).
There are close correlations between the location of the near-
bottom 2 ppt isohaline during winter/spring and annual abundance
indices of bay shrimp, starry flounder, and longfin smelt (Jassby
1992). Annual abundances are low when the position of the near-bottom 2
ppt isohaline is upstream and does not move to and remain at a position
near Roe Island for any extended period of time. Under these
circumstances, the brackish-water nursery habitat favored by these
species is primarily limited to Suisun Bay. Salinity data from
California DFG studies indicate that when near-bottom salinities are at
or below 2 ppt near Roe Island in Suisun Bay, salinities downstream
over the large shallow flats of San Pablo Bay are characteristically
less than 18 to 22 ppt (CDFG 1993). In years when the position of the
near-bottom 2 ppt isohaline moves downstream at least as far as Roe
Island in the spring, the area of low-salinity habitat expands into the
large shallows of San Pablo Bay and these species are more abundant.
These areas of San Pablo Bay provide greatly increased habitat within
the salinity ranges preferred by juveniles of these species.
As with striped bass, other factors are also likely to contribute
to year-to-year variations in abundance of these species, including the
strength of net landward bottom currents (shrimp and flounder), coastal
distribution of reproductive adults and larvae (shrimp and flounder),
and successful downstream transport and dispersal of larvae and
juveniles (smelt) (CDFG 1992, WRINT-DFG-6). However, brackish-water
nursery habitat is essential to the juveniles of these three species,
and is a major factor in the strong correlation between the position of
the near-bottom 2 ppt isohaline and abundance. According to studies by
California DFG, an index of brackish water habitat is strongly
correlated with abundance indices for these three species (CDFG 1992,
figs 1-3, WRINT-DFG-6). EPA's proposed salinity criteria, by providing
estuarine habitat conditions similar to the healthier reference period
of the late 1960's to early 1970's, should restore and maintain the
brackish-water nursery habitat required by these three species.
--Suisun Bay Tidal Wetland Species. The tidal wetlands bordering
Suisun Bay are characterized as brackish marsh because of their unique
combination of species typical of both freshwater wetlands and more
saline wetlands.\7\ Suisun Marsh itself, bordering Suisun Bay on the
north, is the largest contiguous brackish water marsh in the United
States. A large portion of the wetland habitat (approximately 44,000
acres) in this marsh is currently diked and managed for waterfowl use
and hunting. Approximately 10,000 acres bordering Suisun Bay are still
fully tidal (Meiorin 1991).
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\7\There are currently no salinity criteria protecting the
Estuarine Habitat, Wildlife Habitat, and other fish and wildlife
uses of the brackish tidal marshes of Suisun Bay. These large tidal
marshes are distinct from the ``managed'' marshes in the Suisun Bay.
EPA's approval of the 1978 Delta Plan criteria was explicitly
conditioned on the State Board's commitment to develop additional
criteria for the tidal marshes and to protect aquatic life in the
Suisun Marsh channels and open waters. Because these conditions have
not been met, EPA, in its September 3, 1991 letter on the 1991 Bay/
Delta Plan, disapproved the standards for Suisun Marsh and stated
that the State Board should immediately develop salinity objectives
sufficient to protect aquatic life and the brackish tidal wetlands
surrounding Suisun Marsh.
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These tidal marshes provide habitat for a large, highly diverse,
and increasingly rare ecological community. The recent ``Status and
Trends'' reports published by the SFEP listed 154 wildlife species
associated with the brackish marshes surrounding Suisun Bay (Harvey, et
al. 1992), including a number of candidates for listing under the ESA.
These include the Suisun song sparrow (Melospiza melodia maxillaris)
and the Suisun ornate shrew (Sorex ornatus sinuosus), as well as the
plants Suisun slough thistle (Cirsium hydrophilum var. hydrophilum),
Suisun aster (Aster chilensis var. lentus), delta tule pea (Lathyrus
jepsonii), Mason's lilaeopsis (Lilaeopsis masonii), and soft-haired
bird's beak (Cordylanthus mollis). These rare species are all found
exclusively in tidally inundated marsh.
As part of the SFEP-sponsored workshops, a comprehensive literature
review and intensive field surveys of marsh vegetation were undertaken
to document the responses of estuarine marsh communities to changes in
the salinity regime (Collins and Foin 1993). The study concluded that
salinity levels in the tidal marshes play a major role in the
distribution and abundance of plant species. In addition, average tidal
marsh salinity levels are related to the position of the 2 ppt
isohaline, although local controls on salinity are important in some
areas.
The study also found that recent increases in salinity caused by a
combination of upstream diversions and drought have adversely affected
the tidal marsh communities. As salinity has intruded, brackish marsh
plants which depend on soils low in salt content (especially the tules
Scirpus californicus and S. acutus) have died back in both the
shoreline marshes and in some interior marsh channel margins of the
western half of Suisun Bay. These plants have been replaced by plants
typically growing in saline soils, especially cord
FR Doc. 94-120 Water Quality Standards for Surface Waters of the Sacramento River, San Joaquin River, and San Francisco Bay and Delta of the State of California
grass (Spartina
foliosa). This has been associated with erosion of the marsh margins,
significantly reducing the tidal marsh acreage in some areas. In
addition, tules in the upper intertidal zone have been replaced by the
smaller and more salt tolerant alkali bulrush (Scirpus robustus). These
changes have significantly affected available habitat for a variety of
wildlife that nest and feed in these areas, including the Suisun song
sparrow, marsh wren, common yellowthroat, black-crowned night heron,
and snowy egret (Collins and Foin 1993; Granholm 1987a; 1987b). The
loss of habitat for the Suisun song sparrow is of particular concern,
since individuals of this species are found only in the already
fragmented marshes bordering Suisun Bay, occupy an established
territory for their lifetime, and depend on tall tules for successful
reproduction and cover from predators (Marshall 1948).
Although there have been no studies of the direct effects of
salinity on rarer plant species, these species are likely to have the
same salinity requirements as non-rare species residing in the same
plant communities. Delta tule pea and Suisun aster are associated with
tules along the banks of tidal sloughs (CDFG 1991). Mason's lilaeopsis
is also found along tidal banks, associated with the more freshwater
marsh species, including tules, and in the shade of riparian shrubs
such as willows (CDFG 1991). Suisun thistle and soft-haired bird's beak
are found in the few remaining higher elevation tidal marshes. All of
these species are limited to marsh areas seasonally inundated with
fresh to brackish water, and depend on such conditions to varying
degrees.
For those brackish marsh plants depending on freshwater conditions,
the most critical growth period is February through June. If suitable
lowlands were present upstream, increases in the estuary's salinity
gradient would allow brackish tidal marsh communities to migrate
upstream. However, the floodplains and other lowlands suitable for the
evolution of tidal marshes are absent upstream of Suisun Bay (SFEP
1993b). As a result, increases in tidal water salinity may
significantly reduce the already severely limited freshwater and
brackish marsh habitats, and will threaten the natural diversity of the
estuary's wetland communities. Maintaining historical levels of low-
salinity habitat in Suisun Marsh is therefore essential to protect
Estuarine Habitat, Wildlife Habitat, Rare and Endangered Species, and
other uses designated for protection by the State's water quality
standards.
d. Proposed Criteria
(1) Preliminary considerations. This section discusses three issues
that affect EPA's proposal: the proper level of protection for
designated uses, the basis for choosing the locations for measuring the
proposed criteria, and the proper time period for maintaining the
proposed criteria.
--Level of Protection. One of the key recommendations of the SFEP-
sponsored workshops was that environmental goals for the estuary would
be most effective if expressed in terms of restoring conditions to
those that existed at specific historical periods. If a certain level
of ecosystem restoration is selected as a goal, then the relationship
between abundance and the location of the 2 ppt isohaline (and the
amount of water necessary to achieve that isohaline) can be used as a
basis for setting standards that will achieve those goals. (SFEP
1993b).
This historically-based approach is consistent with EPA's National
Program Guidance for Biological Criteria for Surface Waters (USEPA
1990). EPA's National Program Guidance recommends that aquatic
communities in waterbodies subject to anthropogenic disturbance be
assessed in comparison to similar, but unimpaired waterbodies (a
reference condition). Although the Guidance discusses designation of a
reference site to compare directly with an impaired waterbody, analysis
of historical records is also recommended. In the case of the Bay/
Delta, a reference waterbody is not available. Instead, reference
conditions have been based on historical information.
The proposed salinity criteria reflect estuarine habitat conditions
that existed prior to 1976. In the recent State Board hearings, EPA,
NMFS, and USWFS recommended standards that would restore habitat
conditions to levels that existed in the late 1960's and early 1970's
(USFWS 1992g, WRINT-FWS-10).\8\ This period generally reflects
conditions that occurred in the estuary before fish habitat and
populations began to experience the most recent significant declines,
and therefore serves as a useful definition of a healthy fishery
resource. Land use patterns and upstream water developments had largely
stabilized by the end of this period so that increases in project
impacts are the dominant change associated with the subsequent decline
in fishery resources. The reclamation of wetlands was largely complete
by the 1920's, and the largest of the upstream developments, Shasta
Reservoir, was completed in the early 1940's.
---------------------------------------------------------------------------
\8\This restoration goal is less protective than the ``without
project'' goal targeted by the State Board as part of its water
quality standards in 1978. In the 1978 Delta Plan, the State Board
adopted standards intended to achieve levels that would have existed
in the absence of the state and Federal water projects, and agreed
to revise the standards if necessary to achieve this goal. This
``without projects'' goal was never formally incorporated into the
State's water quality standards, and its continued validity as a
stated goal is in question given the court's decision in United
States et. al. v. State Water Resources Control Board, supra)
(reviewing the 1978 Delta Plan and rejecting the ``without
projects'' approach). EPA continues to believe that fully offsetting
the impacts of water development should be the goal of long-term
planning efforts by the State Board and other agencies. However,
because of the precipitous decline in the biological communities of
the estuary in the last decade, this goal is no longer reasonably
attainable in the short term, given the existing physical facilities
and water project operations in the Delta. As a result, EPA, USFWS
and NMFS have recommended that the State Board immediately set
standards sufficient to restore estuarine habitat conditions to
those that existed in the late 1960's and early 1970's, and to
establish a long-term goal of fully offsetting the impacts of water
development (USFWS 1992g, WRINT-FWS-10). This long-term goal is
consistent with the goals of the recently-enacted Central Valley
Project Improvement Act (Title 34 of P.L. 102-575, 106 Stat. 4600)
(Central Valley Project Improvement Act), which include programs to
mitigate the adverse effects incurred as a result of the
construction of the CVP.
---------------------------------------------------------------------------
Ideally, EPA would use the late 1960's to early 1970's habitat
conditions as both the targeted level of protection and the historical
reference period. However, to better reflect the natural variability of
wet and dry years, EPA is proposing criteria that vary according to the
``water year type''. The water year type concept is already fully
integrated into the operations of California water management, and the
State Board's classification of years into one of five categories (wet,
above normal, below normal, dry, and critically dry) is accepted as the
standard water year type classification scheme.
The period of the late 1960's to early 1970's, however, contained
no dry or critically dry years and only one above normal year. Thus, in
order to provide an adequate representation of the different water year
types, EPA is proposing the use of the period 1940 to 1975 as the
historic reference period. An examination of the historical record
reveals that this 35 year period was one of fairly consistent
hydrological conditions. The period is bracketed by major hydrological
changes--the construction of Shasta Dam immediately before this period,
and the extended drought and increased water exports beginning
immediately after this period in 1976.
Including the longer 1940-1975 period as the historical reference
period allows better estimation of the salinity regime for different
water year types than would use of only the late 1960's to early
1970's. Given that the hydrological conditions were fairly consistent
throughout the longer 1940-1975 period, EPA believes this longer
historical reference period serves as a better long term indicator
through all water year types of the habitat conditions existing in the
recommended target years of the late 1960's to early 1970's.
The development of the historical salinity regime is presented in
appendix II. Salinity records extend back only to 1967, whereas daily
flow estimates are available from October 1929. Using models created by
California DWR relating flow and salinity allows reconstruction of the
salinity regimes in the historical reference period.
--Basis for locations selected. Three locations for the proposed 2
ppt isohaline were selected to correspond to protection of three
different types of estuarine habitat in different water years.
Together, the use of these three locations will maintain the natural
variability in salinity levels that characterize the historical data
set at medium to lower flow levels (those substantially within the
control of upstream diverters).
Roe Island. The 2 ppt isohaline occurs at or below Roe Island at
times of high outflow accompanying storms with uncontrolled runoff, as
well as at times of high water releases from upstream dams. These flows
carry many young fish from the Delta downstream into Suisun Bay.
Because the entrapment zone will consistently be near the broad
shallows and large marsh areas of Suisun Bay, the young fish and other
organisms associated with the zone will be distributed into these
diverse and productive habitats, greatly increasing the extent and
value of their available habitat. This location will also maximize the
inputs of production from Suisun Marsh and the shallows of Suisun Bay
into the entrapment zone, and will provide greatly increased areas of
medium to low salinity nursery habitat for estuary dependent species in
San Pablo Bay.
Chipps Island. The downstream end of Chipps Island marks the
upstream end of Suisun Bay. As noted above, low salinity habitat in
Suisun Bay has been well documented as an important nursery area for
Delta smelt, striped bass, and other estuarine species. Suisun Bay also
represents the farthest upstream extent of large areas of shallow
habitat. These shallow habitats are more productive than deeper
channels (Cloern et al. 1983), and horizontal flows across these
shallows bring food sources into the entrapment zone. For some species,
particularly Delta smelt, shallow areas near the entrapment zone are a
preferred habitat (Moyle et al. 1992), perhaps as a refuge from
predation. When the average salinity at Chipps Island is less than 2
ppt, organisms associated with this habitat will be in or near the
shallow habitats of Suisun Bay for half of each tidal cycle.
Confluence of Sacramento and San Joaquin Rivers. The confluence of
the Sacramento and San Joaquin Rivers marks the point where organisms
associated with low salinity habitat are exposed to the detrimental
conditions in the lower San Joaquin River. The higher mortalities and
poorer habitat conditions associated with the lower San Joaquin River
have been documented at length in testimony to the State Board (USBR
1992, WRINT-USBR-2; Moyle 1992, WRINT-NHI-9). This location, then,
provides a suitable upstream limit for the 2 ppt isohaline. When
average salinities at the confluence reach the 2 ppt level, the
organisms associated with low salinity habitat will have access to the
shallow habitats downstream in Suisun Bay only during the lower low
tide point of the tidal cycle.
--Period of protection. Changes in water quality that have affected
aquatic resources have been greatest during the period from February to
June. Under naturally-occurring hydrological conditions, flows in these
months were often very large while in summer flow rates declined and
salinity in the delta increased. Upstream diversions have altered this
natural pattern by reducing peak spring flows and, in some years,
increasing flows during the late summer and fall months. The changes in
summertime water quality (towards lower salinity) occur during a season
when most of the fish species have already completed their spawning or
migration (Monroe and Kelly 1992).
The abundance and reproductive success of almost all species that
live in or migrate through the upper estuary depend strongly on
conditions during the months from February through June (Stevens 1977;
Daniels and Moyle 1983; Stevens and Miller 1983; Moyle and Herbold
1989; Herbold et al. 1992; SWC 1992, WRINT-SWC-1). These species
survive and reproduce more successfully when Suisun Bay has large areas
of low salinity habitat (less than 2 ppt), San Pablo Bay has large
areas of medium to low salinities (less than 18 to 22 ppt), river
outflows are high, bottom currents are strong, temperature is low, and
the areas of greatest turbidity are downstream of the Delta. Because of
the combination of drought conditions and high levels of water exports,
these conditions have occurred very rarely in recent years. Therefore,
EPA's proposed criteria center on these five months.
(2) Proposed criteria. EPA's specific proposed criteria are shown
in Table 1. They include 2 ppt salinity criteria at Roe Island, Chipps
Island, and at the Sacramento/San Joaquin River confluence from
February through June. The criteria replicate the average number of
days on which the 2 ppt isohaline occurred at or downstream from each
of these locations during the historical period 1940-1975, inclusive,
classified by water year type. Because no critically dry years occurred
in the period from 1940 to 1975, the required number of days for
critically dry years is based on an extrapolation of the data.
The proposed criteria are measured using a 14-day moving average.
The use of a 14-day moving average allows the mean location to be
achieved despite the varying strength of tidal currents during the
lunar cycle because any 14 day period will include the full range of
spring and neap tidal conditions.
Table 1.--Proposed 2 ppt Salinity Criteria
------------------------------------------------------------------------
Roe Chipps
Island Island Confluence
Year type [km 64] [km 74] [km 81]
(days) (days) (days)
------------------------------------------------------------------------
Wet..................................... 133 148 150
Above normal............................ 105 144 150
Below normal............................ 78 119 150
Dry..................................... 33 116 150
Critically dry.......................... 0 90 150
------------------------------------------------------------------------
Numbers indicate required number of days (based on a 14-day moving
average) at or downstream from each location for the 5-month period
from February through June. The water year classifications are
identical to those included in the 1991 Bay/Delta Plan for the
Sacramento River Basin. Roe Island salinity shall be measured at the
salinity measuring station maintained by the USBR at Port Chicago (km
64). Chipps Island salinity shall be measured at the Collinsville
station, and salinity at the Confluence shall be measured at the
Mallard Slough station, both of which are maintained by the California
Department of Water Resources. The Roe Island number represents the
maximum number of days, based on the adjustment described below.
Example: In a wet year, the 2 ppt isohaline must be maintained
at or downstream of the Confluence at least 150 days during February
through June, at or downstream of Chipps Island for at least 148
days during that same period, and, ignoring for a moment the
adjustment described below, at or downstream of Roe Island for at
least 133 days.
Adjusting the Roe Island standard to reflect intra-year storm
variability. As noted above, the proposed criteria at Roe Island are
intended, in part, to replicate low salinity habitat conditions
resulting from spring storm events. Storm events in the spring provide
many benefits to aquatic resources of the estuary. Large areas of
flooded vegetation provide ideal spawning for some species, high flows
transport many planktonic larvae downstream, and translocation of low
salinity habitat allows wide dispersion of many species which reduces
predation (and perhaps competition) and replenishes otherwise isolated
areas. In addition, the variability in salinity over a wide range is
thought to be an important tool in preventing the buildup of molluscan
species and, thus, ensures that more food will accumulate in the
entrapment zone (Nichols 1985; Nichols and Pamatmat 1988).
The proposed criteria at Roe Island, unadjusted, would fully
protect low salinity habitat, but would not accurately reflect the
historical natural variability in runoff and precipitation. The
distribution of storm systems within the October to April wet season
varies greatly year-to-year. In some years, all storm events are
concentrated in early winter, whereas in others the storm events are
evenly distributed or concentrated in the spring. This natural
historical variability is reflected in the proposed salinity criteria.
Without some form of adjustments, salinity criteria at a fixed
downstream location would also result in more flows through the estuary
than might be necessary to maintain water quality (that is, the ``water
costs'' would be unnecessarily high). The flows necessary to hold the 2
ppt isohaline at a particular location in the estuary are substantially
less than the flows needed to move that isohaline downstream to a
different position. In the Bay/Delta, these higher flows used to move
the isohaline could come either from natural storm events or from
controlled reservoir releases. The proposed standard provides for an
adjustment of the Roe Island standard to more closely replicate natural
spring storm cycles. This adjustment will avoid adverse impacts on
species (such as the winter-run salmon) dependent on upstream reservoir
conditions.
Under the proposal, the criteria of number of days for a given year
type at Roe Island would not apply unless and until the average daily
salinity at Roe Island attains the 2 ppt level through natural
uncontrolled flows. Following the occurrence of such an event, the 14
day average salinity at Roe Island must not exceed 2 ppt for the number
of days specified in Table 1. Therefore, the number of days listed
under Roe Island represents the maximum of the number of days that may
be required. In effect, this adjustment provides that the additional
water needed to move the isohaline downstream to Roe Island will come
from natural storms rather than from reservoir releases or export
restrictions. This approach better reflects the natural variability in
timing and quantity of runoff and significantly reduces the water
supply impacts of the proposed criteria relative to criteria that do
not account for this variability.
e. Implementation Measures
Under the CWA, the states have a primary role in developing
measures implementing water quality criteria. EPA expects that the
State Board would implement these salinity criteria by making
appropriate revisions to operational requirements included in water
rights permits issued by the State Board. Consistent with the mandates
of section 101(g) of the CWA, the State Board has full discretion in
determining the source of water flows necessary to meet these criteria.
EPA has intentionally drafted its proposed criteria to be measured at
or downstream of the confluence of the Sacramento and San Joaquin
Rivers. This allows the State Board maximum latitude in choosing a mix
of flow conditions and export restrictions in both river basins.
Although the State Board has full discretion to develop an
implementation plan for these criteria in the manner it chooses, EPA
and the other federal agencies involved in water resource management
issues in the Bay/Delta (USFWS, NMFS, and USBR) urge the State Board to
spread the burden across as broad a spectrum of water users as
possible. The economic analysis prepared in conjunction with this
proposal suggests that spreading the burden results in substantially
lower costs than does imposing the burden on a particular geographical
area or a narrowly defined group of water users. This is not just a
matter of fairness. The federal agencies' preliminary discussions with
water project managers indicated that increasing the pool of
contributors substantially increases the operational flexibility of the
water system, and thereby reduces the total impact of meeting the
proposed criteria. For that reason, the federal agencies hope the State
Board will continue the concept it adopted in its proposal for D-1630,
and will allocate the burden of meeting these criteria across the broad
range of the state's water users.
2. Fish Migration and Cold-Water Habitat Criteria
a. Background
The State's designated uses for the Bay/Delta include Cold
Freshwater Habitat to sustain aquatic resources associated with a
coldwater environment, and Fish Migration to protect those fish which
migrate through the estuary. The migratory fish species associated with
the cold-water environment in the Bay/Delta are chinook salmon
(Oncorhynchus tshawytscha) and steelhead trout (Oncorhynchus mykiss).
Currently there are four distinct populations of salmon in the
Sacramento/San Joaquin river systems, each named for the season of
their migration upstream as adults. The fall-run population is now the
most numerous; in recent years, typically 90 percent of all Central
Valley spawners are fall-run fish. Increased hatchery production of
fall-run fish has resulted in stable spawning returns of fall-run fish
passing the Red Bluff Diversion Dam on the Sacramento River; however,
wild fall-run chinook abundance is low and is decreasing. The
Sacramento River system still supports small winter-run, spring-run and
late fall-run populations, but these populations have all declined
dramatically in recent years (USFWS 1992a, WRINT-USFWS-7). The winter-
run population is now listed as threatened under the ESA. The spring-
run population has recently reached low enough levels to be recognized
as a species of special concern by the State of California.
Steelhead trout are also cold-water migratory fish within the
Sacramento River System. They have suffered a 90 percent decline since
the late 1960's, and are supported largely by hatchery production (CDFG
1992a, WRINT-DFG-14).
The San Joaquin River system supported both fall and spring runs
until the 1940's when Friant Dam was built. The dam prevented the
spring-run fish from reaching cool upstream areas suitable for summer
rearing, so the spring-run disappeared and presently there is only a
fall-run population. Recently, the San Joaquin population has been
highly variable, reaching very low levels in times of drought, and
responding quickly to higher wet year flows. Inadequate stream flows,
water developments, poor water quality, water diversions, and habitat
deterioration have had varying degrees of impact. Continuing high
levels of water diversions from the San Joaquin River and tributaries,
and high exports out of the South Delta, in concert with the recent
extended drought have caused major impacts to all San Joaquin tributary
runs. Population levels are extremely low, and the 1991 brood year may
only produce a total of 100 to 300 returning adults in 1994 when these
adults return to spawn at the end of their three year life cycle (CDFG
1992c, WRINT-DFG-25).
Salmon and steelhead populations are subject to increased mortality
when exposed to high temperatures and when diverted out of the main
channels of the Sacramento and San Joaquin Rivers into less suitable
habitat. Those fish diverted from the main channels are also subject to
increased mortality as water exports at the State and Federal pumping
plants in the south Delta increase. USFWS tagged smolt\9\ studies
between 1984 and 1989 found that smolts migrating out of the Sacramento
River system in the spring survived on average approximately 3.4 times
better in the Sacramento main channel than in the interior (central)
Delta. Results from studies carried out in the spring of 1985 to 1990
showed on average approximately 2 times better survival in the main
channel of the San Joaquin River than in Old River, a secondary
channel. Higher temperatures affect smolt mortality both in the main
channel and in the central Delta. For example, the recent (1992) USFWS
results from spring tagged smolt releases into the central Delta showed
that mortality was approximately 2\1/2\ times greater at 67 deg.F than
at temperatures of 63 deg. and 64 deg.F (USFWS 1992a, WRINT-USFWS-7).
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\9\A ``smolt'' is a salmon in the process of acclimating to a
change from a fresh water environment to a salt water environment.
This occurs when young salmon migrate downstream through the Delta
to the ocean.
---------------------------------------------------------------------------
State and federal legislators have recognized the serious threat to
the continued existence of migratory fishes in the Bay/Delta. In 1988,
the California State legislature mandated a restoration goal of
doubling natural salmon and steelhead production by the year 2000, and
required development of a plan to meet this goal. Salmon, Steelhead
Trout, and Anadromous Fisheries Program Act; codified at Cal. Fish &
Game Code Sec. 6900 et seq. (West 1991). In response to this mandate,
California DFG published the Central Valley Salmon and Steelhead
Restoration and Enhancement Plan in 1990 (CDFG 1990a). California DFG
recommended that the State Board adopt an objective of maintaining the
survival rate of salmon smolts passing through the estuary at the
``without projects'' historical level, and listed specific actions for
the consideration of the State Board to implement this objective. Also,
Congress recently enacted the Central Valley Project Improvement Act,
which requires that a program be developed and implemented to ensure
that natural production of anadromous fish in Central Valley rivers and
streams will be ``sustainable at levels at least twice the average
levels attained during the period 1967-1991.''
b. Protection of Bay/Delta Coldwater Habitat and Migration Under the
Clean Water Act
In order to protect fall-run salmon, the 1978 Delta Plan included
minimum flow objectives (below those set for striped bass) and mandated
gate closures to help keep fry out of the central Delta when flows were
above 12,000 cubic feet per second (cfs) during the period January 1 to
April 15. In addition, gate closures through May, designed to protect
striped bass, have also provided protection for out-migrating salmon
smolts. These measures were considered inadequate by the fisheries
agencies (USFWS, NMFS, and California DFG). At the 1987 Water Quality
Control Plan hearings, these agencies recommended flow objectives based
on 1940 historical flows (without project levels) that would have
significantly increased protection for fall-run salmon. Similarly, in
the 1988 Draft Water Quality Control Plan (SWRCB 1988), the State Board
staff recommended objectives for Sacramento fall-run salmon based on
average spring flow conditions from 1930 to 1987, and for San Joaquin
fall-run salmon based on flow conditions from 1953 to 1987. However,
this Plan was not adopted.
The 1991 Bay/Delta Plan established additional criteria designed to
protect salmon. The State Board set new temperature criteria of 68
deg.F at Freeport and Vernalis from April 1 through June 30 and
September 1 through November 30 to protect Cold Fresh-Water Habitat for
fall-run salmon. The 1991 Bay/Delta Plan also set a temperature
criterion of 66 deg.F at Freeport from January through March to protect
winter-run salmon. EPA disapproved these criteria because the evidence
in the State Board's submittal did not demonstrate that they would be
sufficient to protect cold-water habitat for these species. Based on
the supporting evidence in the State Board's submittal and the Central
Valley Salmon and Steelhead Restoration and Enhancement Plan (CDFG
1990a), EPA recommended that the State Board adopt a 65 deg.F
criterion, or an alternative that is scientifically defensible. EPA
also disapproved the State's temperature criteria because they were
subject to ``controllable factors'' (that is, temperature criteria were
to be met only if they could be attained using a limited set of
implementation measures). With this limitation such criteria are
unlikely to be protective, especially since the State Board
specifically prohibited the use of reservoir releases to reduce
temperatures in the Delta (SWRCB, 1991).
EPA believes that the State should continue to work on developing
scientifically-defensible long-term temperature criteria sufficient to
protect cold-water habitat for salmon migrating through the estuary.
Temperature has been consistently used nationwide as a basis for water
quality criteria, and there is strong scientific evidence that
temperature affects survival of salmon smolts as they move through the
Delta (Kjelson, et al., 1989; USFWS 1992a, WRINT-USFWS-7, USFWS 1992b
and USFWS 1992c, WRINT-USFWS-8). However, EPA acknowledges that
specific temperature criteria are difficult to establish and implement
presently in the Delta because historic temperature levels have been
highly variable and respond quickly to ambient air temperatures, and
because there is insufficient information on the effectiveness and
feasibility of various methods of lowering temperature. It is likely
that there are short time periods (on the order of days to a few weeks)
during which efforts at temperature control could be successful and
provide increased smolt survival. However, existing models predicting
changes in temperature in response to water project operations use a
monthly temporal structure and only provide results as monthly means.
Thus, these models cannot be used to analyze measures that could
provide improved conditions over shorter periods of time. In addition,
management of reservoir releases to provide benefits to salmon both in
the Delta and in the upstream reaches has not been thoroughly assessed
(Kelley, et al. 1991; Mann and Abbott 1992).
Studies to develop improved reservoir and river temperature models
with a shorter time-step and improved predictive capability for the
entire Sacramento system are just beginning under the auspices of
Trinity County, the University of California at Davis, and the
California DFG. These studies will also include a direct analysis of
the effect of temperature management alternatives on salmon
populations. Additional work to develop effective temperature models
has been mandated by section 3406(g) of the recently-enacted Central
Valley Project Improvement Act. It should be possible to use
information from these studies to set temperature criteria in the near
future, and EPA will continue to work with the State to develop
specific temperature criteria for the Delta. However, at this time, EPA
is not proposing temperature criteria to replace those criteria
disapproved in EPA's September 3, 1991 letter, and is instead proposing
the salmon smolt survival criteria described below.
c. Proposed Smolt Survival Criteria
Because at this time EPA has not developed an adequate scientific
basis for precise temperature criteria, EPA is proposing ``smolt
survival criteria'' to protect the Fish Migration and Cold Fresh-Water
Habitat designated uses in the Bay/Delta estuary. These criteria are
based on a smolt survival index that quantifies and predicts the
survival of salmon migrating through the Delta. The index can be used
to determine whether the Fish Migration and Cold Fresh-Water Habitat
uses are impaired in the Bay/Delta. When applied in criteria, the index
measures and can control the condition of the resource at risk by
directly assessing and limiting the loss of salmon smolts within the
Delta due to a variety of impaired water quality conditions. The use of
this index is consistent with the integrated approach envisioned by the
National Program Guidance for Biological Criteria for Surface Waters
(USEPA 1990).
(1) Smolt Survival Models. The smolt survival indices are based on
USFWS models described in Kjelson et al. (1989), USFWS (1992a) (WRINT-
USFWS-7) and USFWS (1992b). These models are summarized more fully in
Appendix III. The models are empirical; that is, they are in large part
based on the results of experiments measuring and comparing smolt
survival under a number of different physical conditions of varying
migration pathways, water temperatures, flow rates, and rates of
exports from the Delta. The models underlying the salmon smolt survival
criteria are complex; additional information about the methods used in
constructing the Sacramento and San Joaquin indices is contained in
Appendix III and the administrative record to the proposal. For the
Sacramento River system, the proposed salmon smolt survival criteria
are based on the most recent model (USFWS 1992b) for predicting
migration success for the Sacramento River fall-run population, and
rely on the relationship between smolt survival and three factors:
temperature, diversion out of the mainstem Sacramento River, and export
rates. The San Joaquin model is based on experimental data, and relies
on the relationship between salmon smolt survival and river flows,
diversion into Old River, and export rates. Consistent with the
implementation recommendations of USFWS, NMFS, and California DFG, the
San Joaquin model assumes that a barrier will be in place at the head
of Old River during the peak migration season.
Verifying the models used to generate the salmon smolt criteria is
a continuing process using code-wire tagged smolt studies conducted by
the USFWS (USFWS 1992b, 1993). Although these models represent the
present state-of-the-art in Bay/Delta salmon fisheries management, EPA
anticipates that the models will continue to be verified, updated and
refined each year by USFWS to reflect additional data collection
results, and believes that continuing verification is necessary to
assure that outmigrating smolts are protected. In the event that USFWS
modifies its models, recommended index values, or recommended
implementation measures, EPA intends that the criteria will be amended
accordingly in the next triennial review.
(2) Proposed Criteria. In developing the goals or target index
values for its proposal, EPA is relying primarily on the goal of
restoring habitat conditions to those existing in the late 1960's and
early 1970's, as recommended in the Interagency Statement of
Principles. Strict adherence to this recommendation would suggest using
the index values associated with that historical period as the target
index values. These values are included in Table 2, which provides
estimated index values for different historical periods. As part of
their recent expert testimony to the State Board, USFWS estimated these
historical survival indices under different conditions (USFWS 1992c,
WRINT-USFWS-8). The Sacramento River historical values are based on an
early version of the Sacramento River model (Kjelson et al. 1989).
There would be minor changes in the estimates using the most up-to-date
model (USFWS 1992b). For example, recalculating the Sacramento River
value for the 1956-1970 historical period yields a mean of the five-
year types of .37, compared to the .36 indicated in Table 2.
Table 2.--Historical Salmon Smolt Survival Indices for the Sacramento
and San Joaquin River Portions of the Delta
------------------------------------------------------------------------
WATER YEAR TYPE Mean of
--------------------------------------------- year
W AN BN D C types
------------------------------------------------------------------------
Sacramento River
goal:
1940 Level of
Development.. .76 .81 .77 .63 .44 .68
1956-70
Historical... .56 a.45 .35 .26 a.20 .36
1960-88
Historical... .44 .43 .31 .25 .19 .32
1978-90
Historical... .39 a.32 a.28 .22 .16 .27
San Joaquin River
Goal:
1940 Level of
Development.. .58 .50 .52 .47 .39 .49
1956-70
Historical... .61 a.25 .18 .17 a.15 .27
1960-88
Historical... .43 .12 .17 .13 .12 .19
1978-90
Historical... .48 a.15 a.09 *.06 .07 .17*
------------------------------------------------------------------------
aInterpolated: there were no water years in these categories during the
relevant historical period. Source: USFWS 1992a.
For a number of reasons, however, strict adherence to the late
1960's and early 1970's target is inappropriate. Salmon fisheries,
especially on the San Joaquin River, were already somewhat degraded
during that historical period, and the degradation has been more severe
in drier years. This is demonstrated in Table 2, above, which provides
estimated historical survival index values for the relevant period.
This Table shows that the decline in the survival index was more
pronounced in critical, dry, and below normal water years than in
wetter years. Accordingly, to protect salmon from falling to
dangerously low population levels, and more nearly mimic the natural
historical response of smolts migrating through the Delta to year-to-
year changes in hydrology, EPA is proposing more protective target
values in drier years and less in wetter years.
On the Sacramento River system, EPA believes salmon smolt migration
will be protected if the long-term average survival over all water year
types replicates the target historical period values. Protection at the
late 1960's to early 1970's level in the wetter years is not necessary
if better protection is afforded migrating smolts in the drier years.
On the San Joaquin River system, however, the drop in survival has been
more severe in drier years, the runs are smaller and more at risk, and
the overall survival index was less than in the Sacramento system
during the target historical period. For that reason, in order to
protect the Fish Migration designated use on the San Joaquin, EPA is
proposing index values that afford both better protection in drier
years and overall index values that are higher than in the historical
late 1960's to early 1970's period.
To achieve this level of protection and to address this bias in the
historical reference period index values, EPA is proposing the use of
target values derived from the recommendations and analyses carried out
by the Delta Team of the Five Agency Chinook Salmon Committee. This
interagency group consists of representatives from the USFWS,
California DFG, California DWR, NMFS, and USBR. Its reports (Five
Agency Delta Salmon Team, 1991a, 1991b) represent a consensus on the
most effective and feasible implementation measures to protect
downstream migrant salmon smolts in the Delta. In preparing its
recommendations for the 1992 State Board hearings, USFWS reviewed
recommendations from the Five Agency Delta Salmon Team in its salmon
smolt model, and presented a set of index values and corresponding
operational recommendations to the State Board (USFWS 1992a, WRINT-
USFWS-7; USFWS 1992c). These index values, which are intended to be
consistent with the fisheries agencies recommended target index values
that would restore habitat conditions and salmon populations to those
characteristic of the late 1960's to early 1970's (USFWS 1992a, WRINT-
USFWS-7; USFWS 1992c, WRINT-USFWS-8; CDFG 1992b, WRINT-DFG-8), are
shown in Table 3. The values for the Sacramento River index differ
slightly from those presented in the 1992 State Board hearings because
these Table 3 values are based on the most recent version of the
Sacramento River model.
Table 3.--Salmon Smolt Survival Indices Based on Five Agency Chinook
Salmon Committee Analysis and Recommendations
------------------------------------------------------------------------
Sacramento River San Joaquin River
------------------------------------------------------------------------
Index Index
Water year type value Water year type value
------------------------------------------------------------------------
Wet........................ .49 Wet........................ .46
Above Normal............... .41 Above normal............... .30
Below Normal............... .40 Below normal............... .26
Dry........................ .35 Dry........................ .23
Critical................... .32 Critical................... .20
Mean....................... .41 Mean....................... .31
------------------------------------------------------------------------
Finally, in arriving at index values for its proposal contained in
Table 4, EPA has adjusted the index values of Table 3 to meet concerns
over potential closure of the Georgiana Slough. As discussed below, EPA
has been engaged in consultations with USFWS and NMFS under the ESA
about possible effects of EPA's water quality standards actions on
threatened and endangered species. During the course of these
consultations, it was suggested that one of the measures the Five
Agency Chinook Salmon Committee had recommended as an effective
protective measure for salmon smolts--putting a temporary barrier at
the head of Georgiana Slough--may have deleterious effects on the Delta
smelt and other native aquatic life in the central Delta, and possibly
on adult salmon returning upstream. For that reason, EPA has recomputed
the index values (see Table 4) to reflect model results if the
Georgiana Slough were left open. Lower exports, particularly during
times of peak San Joaquin salmon outmigration, were incorporated as an
additional feasible and effective implementation measure benefiting
salmon, in part to compensate for the additional mortality associated
with keeping Georgiana Slough open. EPA believes that these adjustments
still provide protection consistent with the goal of restoring habitat
conditions to those existing in the late 1960's to early 1970's (mean
Sacramento River survival index of .37), while also taking into account
achievable implementation measures. The recomputed index values in
Table 4 are included as EPA's proposal.
Table 4.--Proposed Salmon Smolt Criteria
------------------------------------------------------------------------
Sacramento River San Joaquin River
------------------------------------------------------------------------
Index Index
Water year type value Water year type value
------------------------------------------------------------------------
Wet........................ .45 Wet........................ .46
Above Normal............... .38 Above normal............... .30
Below Normal............... .36 Below normal............... .26
Dry........................ .32 Dry........................ .23
Critical................... .29 Critical................... .20
------------------------------------------------------------------------
To protect both Fish Migration and Cold Fresh-Water Habitat
designated, EPA proposes that the specific smolt survival criteria in
Table 4, above, be adopted for the Bay/Delta. As explained above, the
proposed Sacramento River criteria are modified from the USFWS indices
in Table 3. The San Joaquin River criteria are the same as Table 3. The
Sacramento River criteria provide overall protection at approximately
the 1956-1970 historical level (.37 mean survival index). The San
Joaquin River criteria provides better protection than the 1956-1970
historical level (.27 mean survival index). Both sets of criteria
provide better protection than the 1956-1970 historical period in drier
years, and less protection in wetter years. These criteria should
provide more consistent smolt survival and help avoid situations where
extraordinary measures are necessary to preserve runs, particularly in
the San Joaquin River tributaries. Water year type designations are
identical to State Board classifications (SWRCB 1992a).
d. Implementation Measures
Under the CWA, the States have a primary role in developing
measures implementing water quality criteria. EPA expects that the
State Board would implement these criteria by making appropriate
revisions to operational requirements included in water rights permits
issued by the State Board. EPA believes that the State Board would have
a number of possible implementation approaches for achieving the salmon
smolt survival criteria. In the recent State Board hearings, USFWS
recommended a series of implementation measures (based on the Five
Agency Chinook Salmon Committee proposals) designed to achieve the
smolt survival indices recommended in the joint statement by USFWS,
NMFS and EPA. For the Sacramento River, these included closure of the
Delta Cross Channel from April through June, closure of Georgiana
Slough from April 15 to June 15, and minimum Sacramento Flow at Rio
Vista of 4000 cfs from April through June. For the San Joaquin River,
these measures included requiring a range of flows from 2,000 to 10,000
cfs at Vernalis from April 15 to May 15; requiring minimum flows of
1000 cfs at Jersey Point from April through June, except from April 15
to May 15, when higher flows from 1000 to 3000 cfs would be required;
and placing a full barrier in upper Old River from April through May.
Total water exports would be curtailed to a range from 6000 cfs in wet
years to 2000 cfs in critically dry years from April 15 to May 15.
Based on the USFWS models, these particular measures will achieve
the proposed smolt survival indices in Table 3. However, as discussed
earlier, EPA has incorporated into its proposed target index values
changes to the recommended implementation measures based on concerns
about the effect of these measures on other aquatic resources. Given
the nature of the index itself, however, there is substantial
flexibility in how the target values can be achieved. For example, if
flows are increased above the recommended levels in the San Joaquin
River, the associated export limits could also be increased while
achieving the same level of protection. Reductions in Sacramento River
temperatures would also provide significant benefits. Although
temperature controls were not included in the USFWS recommendations,
they are an important variable in the USFWS model, and may be the most
significant factor affecting smolt survival in the Sacramento River
system. Implementation measures affecting temperature may therefore be
an effective means of attaining the smolt survival criteria.
There is also evidence that short-term operational changes
implemented at peak migration times coincident with critical periods of
high ambient air and water temperature may provide significant benefits
(Kelley, et al, 1991). Other possibilities listed in California DFG's
Central Valley Salmon and Steelhead Restoration and Enhancement Plan
(CDFG 1990) include screening Georgiana Slough and screening the Delta
Cross Channel. A sound barrier (a device generating subsurface sound
that discourages fish from entering the Slough) at Georgiana Slough is
currently under study and may also be a useful implementation measure.
As new methods are developed to increase smolt survival, their benefits
can be assessed, and their contribution toward meeting and/or revising
the criteria taken into account.
Given this potential flexibility, EPA believes that establishing
smolt survival indices as Fish Migration and Cold Fresh-Water Habitat
criteria would give the State Board maximum latitude in choosing a set
of implementation methods that will attain protection of the designated
migration and coldwater fisheries uses. As such, these proposed
criteria are consistent with the mandates of section 101(g) of the CWA,
as discussed above, and accommodate the State's interest in allocating
its water supplies in a way that maximizes the many values important to
the State. Furthermore, the proposal of these criteria is consistent
with the authority in CWA section 303(c)(4), which authorizes EPA to
propose revised or new standards to meet the requirements of the Act.
e. Protection of Other Salmon Runs and Life Stages
Because the smolt survival indices were developed using tagged
fall-run fish during the time of their outmigration, EPA is proposing
the use of these indices only for fall-run outmigrants. For winter-,
late fall-, and spring-run salmon, as well as steelhead, there is no
direct information about the factors that affect survival, although it
is likely that many of the same factors, with the exception of
temperatures during the colder months, are also affecting the juveniles
of these populations as they migrate through the Delta.
Measures implemented by the USBR and SWP as a result of the
Biological Opinion for winter-run salmon issued by NMFS under the ESA
afford some protection for other runs, in addition to protection for
the winter-run salmon population itself. NMFS, Biological Opinion on
Central Valley Project, 1992 Operations (February 14, 1992). In
addition, EPA has been consulting with NMFS to assure that the
implementation of EPA's proposed standards will not jeopardize the
winter-run Chinook salmon population.
Juvenile spring-run salmon and steelhead move through the Delta
during the same period as winter-run and fall-run salmon, and should be
protected in the Delta by measures taken for these other runs. Late
fall-run salmon, however, outmigrate in fall and early winter, and are
currently not fully protected during their passage through the Delta.
Protective criteria for this run should be developed by the State Board
in the near future to ensure that this run is protected.
Younger salmon, or fry, also enter the Delta, particularly when
rainstorms stimulate the movement of fry out of the tributaries and
into the lower Rivers and Delta. Some protection for these fry is
afforded by the current State Board standards requiring closure of the
Delta Cross Channel gates when flows are higher than 12,000 cfs.
However, closure of the Cross Channel gates alone may not be protective
enough, since fry can be swept into the central Delta through Georgiana
Slough and upstream to the export pumps when there is reverse flow in
the lower San Joaquin River, especially during times of high export.
For that reason, Delta habitat conditions for fry may need to be
addressed by the State Board in the future.
f. Protection of Other Migrating Species
Species other than salmonids seasonally migrate into and out of the
Delta for spawning and as juveniles. These species include striped
bass, Delta smelt, longfin smelt, white and green sturgeon, American
shad and Sacramento splittail. With the exception of temperature, the
factors that lead to successful migration of salmonid smolts are also
important for successful migration of the juveniles of these species
into the lower embayments. Therefore, EPA's proposed salmon smolt
survival criteria, although specifically addressing fall-run Chinook
salmon, will also help protect migration of these other migrating
species.
3. Fish Spawning Criteria
a. Background
In California, striped bass spawn primarily in the warmer
freshwater segments of the Sacramento and San Joaquin Rivers.
Protection of spawning in both river systems is important to ensure the
genetic diversity of the population as well as to increase the size of
the overall striped bass population. Adults spawn by migrating upstream
from the San Francisco Bay or from the Pacific Ocean (Stevens 1979;
Wang 1986). The precise location and time of spawning appear to be
controlled by temperature and salinity (Turner 1972a; Turner and
Chadwick 1972). According to the California DFG, striped bass spawn
successfully only in freshwater with electrical conductivities less
than 0.44 millimhos10 per centimeter electroconductivity (mmhos/cm
EC), and prefer to spawn in waters with conductivities below 0.33
mmhos/cm. Conductivities greater than 0.55 mmhos/cm appear to block the
upstream migration of adult spawners (Radtke and Turner 1967; SWRCB
1987; CDFG 1990b, WQCP-DFG-4).
---------------------------------------------------------------------------
\1\0The salinity problems addressed by the isohaline criteria
outlined above are caused primarily by salt water intrusion and are
traditionally measured by ``parts per thousand''. In contrast,
salinity conditions upstream in freshwater are generally affected by
dissolved salts from upstream water runoff. The salinity content of
freshwater is traditionally measured by its electroconductivity or
``EC'' standardized to 25 C (specific conductance), and is expressed
in terms of millimhos per centimeter electroconductivity or ``mmhos/
cm EC''.
---------------------------------------------------------------------------
In the Sacramento River, adults migrate to spawning sites upstream
of Sacramento until they encounter the appropriate warmer temperatures
for spawning. Because of the higher volume of water in the Sacramento
River and the particular constituents and volume of nonpoint source
discharges into the river, salinity does not appear to be a serious
limitation on spawning at any location along the river. In years of
higher spring river flows, with correspondingly lower water
temperatures, bass can spawn further upstream and later in the April-
June period because the warmer temperatures that induce spawning occur
later (Chadwick 1958). Migration and spawning in the Sacramento River
are therefore not adversely affected by salinity. In the smaller and
shallower San Joaquin River, however, the earlier occurrence of warm
temperatures causes the peak spawning period to occur earlier than in
the Sacramento River; the San Joaquin peak usually occurs in April or
May rather than in May or June (Chadwick 1958). Migrating bass seeking
the warmer waters encounter excessive upstream salinity caused
primarily by runoff. This salinity can block migration up the San
Joaquin River, thereby reducing spawning, and can also reduce survival
of eggs (Farley 1966; Radtke 1966; Radtke and Turner 1967; Turner and
Farley 1971; Turner 1972a, 1972b).
The State Board's 1991 Bay/Delta Plan established objectives of 1.5
mmhos/cm EC at Antioch and 0.44 mmhos/cm EC at Prisoners Point in April
and May. EPA disapproved these objectives, in part, because they are
not adequate to protect spawning habitat in the reach farther upstream
between Prisoners Point and Vernalis.
In the 1987 State Board hearings, California DFG testified that
striped bass formerly spawned farther up the San Joaquin River, but
that this has occurred less frequently in recent years because of
increased salinity levels (CDFG 1987). Salinity in the San Joaquin
River increases upstream of Prisoners Point due to reduced freshwater
inflow and agricultural return flows. Thus the absence of salinity
criteria above Prisoners Point effectively establishes a barrier to
adult migration and spawning farther upstream on the San Joaquin River
(Turner 1972a,b). California DFG also suggested that there was a danger
of losing the part of the population that spawned in this area if high
salinities prevent spawning or decrease survival of newly spawned eggs
(CDFG 1987; SWRCB. Phase I Hearing Transcript, LXXV, VII 111:3-14).
In the 1991 Bay/Delta Plan, the State Board described several
alternative water quality standards that would have extended the
protection of spawning conditions upstream of Prisoners Point,
including one alternative very similar to the one EPA is proposing
today. However, the State Board deferred adoption of revised standards,
apparently because of concern that improved spawning conditions would
lead to greater losses of young to entrainment at the State and Federal
pumping plants. As indicated in its September 3, 1991 letter
disapproving certain State criteria, EPA believes that the State Board
can, in developing its implementation measures, address the impact of
the pumps on this spawning habitat.
EPA also disapproved the 1991 Bay/Delta Plan spawning criteria
because they were not based on sound science. The State Board explained
that the 1.5 mmhos/cm EC criteria at Antioch was intended to protect
spawning habitat upstream of Antioch (near Jersey Point), not at the
Antioch location itself. The State Board acknowledged that ``the use of
1.5 [mmhos/cm] EC at Antioch appears not to be generally appropriate,
and proposed that a thorough review of this [criteria] be undertaken at
the next triennial review'' (1991 Bay/Delta Plan, p. 5-32). EPA found
this indirect and unproven approach of setting criteria downstream in
hopes of attaining different criteria upstream deficient, and
disapproved it. EPA's proposed criteria would correct this deficiency
by establishing the scientifically-defensible criteria at Jersey Point,
the actual point of concern.
The State Board also acknowledged that the 1991 Bay/Delta Plan
spawning criteria did not protect the spawning reach in the lower San
Joaquin River, but instead only at two locations: Jersey Point and
Prisoners Point (1991 Bay/Delta Plan, p. 5-30). As a result, the State
Board directed California DFG to study how a specific habitat zone of
0.44 mmhos/cm EC could be established in the entire reach between
Jersey Point and Prisoners Point ``to make certain that the State Board
develops water quality objectives that are based on sound scientific
data'' (1991 Bay/Delta Plan, p. 5-33). EPA agrees, and is proposing
criteria to assure that the entire reach between Jersey Point and
Prisoners Point should be protected.
b. Proposed Criteria
In its September 3, 1991 letter and subsequent correspondence with
the Board, EPA recommended salinity criteria of 0.44 mmhos/cm EC in the
lower San Joaquin River in the reach from Jersey Point and Vernalis.
After further reviewing the scientific evidence, EPA is proposing the
following criteria:
The 14-day running average of the mean daily EC shall not be
more than 0.44 mmhos/cm for the period April 1 to May 31 in wet,
above normal, and below normal years at the following stations:
Jersey Point, San Andreas Landing, Prisoners Point, Buckley Cove,
Rough and Ready Island, Brandt Bridge, Mossdale, and Vernalis. In
dry and critical water years, the criteria are required only in the
reach between Jersey Point and Prisoners Point, as measured at
Jersey Point, San Andreas Landing, and Prisoners Point.
These criteria will fully protect the historic spawning range of
striped bass on the lower San Joaquin River, while reflecting the
natural variability in salinity levels in different water year types.
c. Implementation
Under the CWA, the states have a primary role in developing
measures implementing water quality criteria. EPA expects that the
State Board would implement these criteria by making appropriate
revisions to operational requirements included in water rights permits
issued by the State Board.
4. Compliance With Endangered Species Act
EPA has concluded that its promulgation of water quality criteria
for the Bay/Delta may affect certain species protected by the federal
ESA. These include the winter-run chinook salmon (listed as threatened
and proposed for reclassification as endangered), the Delta smelt
(listed as threatened), and the Sacramento splittail and longfin smelt
(both the subject of petitions for listing). There are also a number of
listed and proposed species resident in Suisun Marsh. Under section 7
of the ESA and accompanying regulations, EPA is required to consult
with NMFS (on the winter-run chinook salmon) and USFWS (on the other
listed and proposed species) to assure that the water quality criteria
promulgated by EPA do not jeopardize the continued existence of these
species or adversely affect their critical habitat. 50 CFR 402.14 and
Sec. 402.10.
EPA has worked closely with NMFS and USFWS over the past two years
to meet its obligations under the ESA. The federal agencies have
recognized the need to take an integrated ecosystem approach to the
Bay/Delta rather than a fragmented, species-by-species approach. To
that end, the EPA, NMFS, and USFWS issued a joint proposal to the State
Board's 1992 hearings on interim measures recommending that the State
Board adopt an immediate goal of restoration of habitat conditions to
those characteristic of the late 1960's and early 1970's. By targeting
this level of protection, the agencies intended to establish habitat
conditions that would protect and preserve the entire range of fish and
wildlife uses in the Bay/Delta.
The criteria proposed in this notice follow this approach to
habitat protection within the Bay/Delta watershed. Pursuant to 50 CFR
Secs. 402.14, EPA has initiated formal consultations with USFWS and
NMFS on the potential effects of its action on endangered and
threatened species. The agencies have agreed to finalize these
consultations before EPA promulgates water quality standards in the
Bay/Delta.
BILLING CODE 6560-50-P
TP06JA94.005
TP06JA94.006
TP06JA94.007
BILLING CODE 6560-50-C
D. Executive Order 12866
Executive Order 12866 requires EPA and other agencies to assess the
potential costs and benefits of all significant regulatory actions.
Significant regulatory actions are those that impose a cost on the
economy of $100 million or more annually or have certain regulatory,
policy, or economic impacts. Today's proposed rule meets the criteria
of a significant regulatory action set forth in section 3(f) of the
Executive Order. The regulatory analysis for this proposed rule is
presented in ``Draft Regulatory Impact Assessment of the Proposed Water
Quality Standards for the San Francisco Bay/Sacramento-San Joaquin
River Delta'' (see Section F for the availability of this and other
documents). This draft RIA was submitted to OMB for review as required
by the Executive Order.
EPA's action is the proposal of water quality standards and this
action explicitly does not include a proposed implementation plan. The
implementation plan has not yet been developed by the State. Therefore,
this draft RIA analyses a range of possible implementation scenarios.
Importantly, the analysis illustrates that the level of costs for the
same level of environmental benefits varies significantly depending on
assumptions in implementation scenarios. Specifically, mechanisms for
economically-efficient allocation of water or for the widespread
distribution of responsibility, such as water transfers and/or a
drought water bank, result in the most cost-effective scenarios.
EPA is committed to working with the State on an implementation
plan and welcomes additional information and analysis on the economic
costs and benefits of its proposals. EPA is interested in both improved
information and policies and programs to minimize the economic impacts
upon water users.
The draft RIA evaluated the costs and benefits of the combined
federal proposals, including EPA's proposed water quality standards and
USFWS's actions under the ESA. The primary method of implementation is
assumed to be increased Delta outflow resulting in reduced water
supplies to urban and agricultural water users. Further, critical
habitat designation may result in additional costs by possibly limiting
sand and gravel operations and affecting marina operations. Benefits
are to the Delta ecosystem as a whole, species diversity, and
commercial and recreational fisheries.
Assessment of Costs and Impacts
The draft RIA shows that the costs to both agricultural and urban
water users would depend upon how water supplies are allocated to
implement the proposals.
The primary method for implementing the combined federal
proposals will be increases in Delta outflow. Current estimates of the
additional outflow developed by the California DWR are 540,000 acre-
feet on average and 1.1 million acre-feet in critically dry years.
The analysis uses an initial distribution of water supply
reductions between agricultural users (80% of the reductions) and urban
users (the remaining 20%).
The results of three scenarios analyzed are presented in the draft
RIA and are briefly summarized here.
Agricultural impacts are influenced by improved irrigation
efficiency, crop shifting opportunities, the size of the affected
region and opportunities for water trading between agricultural
districts. A range of these options was modeled, except for irrigation
efficiency.
A middle range distribution of supply impacts (Scenario 2)
that includes water trading between agricultural districts results in
producer surplus losses (net revenue losses) of $20 million dollars on
average. If trading is limited (Scenario 1), impacts are estimated to
be $44 million on average. Scenario 3 illustrates the lowest cost
option, distributing the water supply reductions throughout the Central
Valley, resulting in producer surplus losses estimates of $8 million on
average.
Economic impacts were estimated for critically dry years
and indicate larger economic impacts, because lower cost options are
already used up in drought years. Scenario 1, where trading is limited,
estimates $147 million in costs in critically dry years. Scenario 2,
where trading is facilitated among agricultural districts, reduces
those impacts by nearly half to $87 million in impacts.
Potential impacts on the urban users were more difficult to
estimate, given the less-established analytic information base. Three
scenarios were developed to project the economic impacts based upon
different assumptions and implementation choices. Key implementation
choices analyzed include the availability of transfers, drought water
pricing, a drought water bank and increased water reclamation.
Additional water management choices include increased conservation,
conjunctive use and other demand management programs.
Water transfers and an efficient drought water bank are
key to minimizing impacts on urban users, given increased environmental
needs. In the least-cost scenario, (Scenario 3) impacts on urban users
were projected to be $25 million on average.
Under Scenario 2, where reclamation meets urban supply
needs along with a combination of drought water pricing and a more
limited drought water bank, impacts are approximately $50-54 million on
average. Under Scenario 1, where no drought water bank exists, impacts
are projected at $80 million on average.
The economic impacts of the proposals are highest in
drought years, when fewer supplies are available to meet increased
urban and environmental needs. Estimation of consumer surplus losses
for Scenario 3 projects a continuation of the 1991 drought water bank
resulting in economic costs of $70 million in a critically dry year. A
combination of a more limited drought water bank and drought water
pricing results in consumer surplus losses of $184-223 million for
Scenario 2. Scenario 1, where no drought water bank exists, results in
consumer surplus losses of $450 million in a critically dry year.
However, EPA projects that these losses are not likely given the
support for a drought water bank as a drought management option.
Further, consumer surplus losses do not measure water bill increases in
the drought case because consumers have demonstrated in drought periods
that they change their water use practices rather than pay higher
rates. Accordingly, an undetermined portion of these estimates is the
value of inconvenience and changes in behavior during drought.
In addition, the draft RIA also estimated employment impacts for
agriculture associated with the implementation of these proposals. The
direct employment effects were estimated to be a reduction of 99
person-years on average, but 1926 person-years in a critically dry year
for Scenario 2 (water trading allowed between agricultural districts).
If water trading between agricultural districts is limited, employment
impacts are estimated to be higher, with 828 person years on average
and 3282 person years in a critically dry year. These estimates are not
predicted employment changes (e.g impacts that would effect the actual
unemployment rate) because they do not account for a full labor market
equilibrium analysis.
Assessment of Benefits
Background: The Bay/Delta estuary constitutes one of the largest
habitats for fish and wildlife in the United States. The estuary
supports more than 120 fish species and provides a stopover or home for
more than half of the waterfowl and shorebirds migrating on the Pacific
Flyway. Suisun Marsh, which is within the Bay/Delta estuary, supports
many rare plant and animal species. Maintenance of freshwater,
estuarine, and wildlife habitat would preserve rare and endangered
species; permit fish migration; and provide opportunities for
commercial ocean fishing and sport fishing.
Qualitative assessment: The combined proposed requirements will
increase the protection of the estuarine habitat in the Delta and will
benefit the ecosystem overall. In addition, the combined proposal is
expected to increase biological productivity of such important
resources as salmon, striped bass, and waterfowl; protect diversity of
species, such as Delta smelt, longfin smelt and Sacramento splittail,
that are unique to the Bay/Delta ecosystem; increase commercial and
recreational fishing opportunities; and increase opportunities for
wildlife observation resulting from restoration of riparian and tidal
marsh habitat and ecosystem.
Benefits associated with the federal proposals are described
qualitatively for most ecosystem benefits. Some fish population
increases were estimated and a portion of the commercial and
recreational fishery benefits were monetized.
The benefits of the federal proposals are an increase in
biological productivity and ecosystem health for the Bay/Delta
ecosystem. This increase includes protecting unique species from
extinction. Bay/Delta species that currently might qualify for listing
under the ESA include the longfin smelt, spring-run Chinook salmon,
Sacramento splittail, green sturgeon, and Red Hills Roach, in addition
to the already listed winter-run Chinook salmon and Delta smelt. A
potential benefit of the federal proposals is that the ecosystem health
might improve to the point where unlisted species need not be listed,
or presently listed species could be delisted under the ESA.
Well-established relationships between estuarine
conditions and populations exist for many estuarine species. The extent
of the low salinity habitat in the estuary is closely associated with
the abundance and distribution of estuarine species at all trophic
levels. Increased populations were estimated for salmon (increasing by
approximately 90,000 salmon), striped bass (increasing by approximately
10 percent), and starry flounder. In addition, populations of other
game species of green and white sturgeon, bay shrimp, American shad and
white catfish are expected to increase.
A portion of these population increases will accrue to the
recreational or commercial fisheries. Not less than $9-11 million
annually were estimated, again with many benefits not estimated in
dollar value. The majority of these gains are in the commercial salmon
fishery. Employment gains in the salmon fishery were estimated to
increase by 300-360 jobs annually.
Many other recreation activities, including hunting,
boating, and nature appreciation are expected to be enhanced by the
proposed regulations; however, the estimated change in participation in
these activities
FR Doc. 94-120 Water Quality Standards for Surface Waters of the Sacramento River, San Joaquin River, and San Francisco Bay and Delta of the State of California
could not be quantified.
Enhancing the natural environment of the Bay/Delta would
have nonuse social benefits. Although these benefits could not be
quantified, it is believed that they constitute the largest portion of
the total value to society of implementing the proposed regulations.
Enhancing water quality in the Bay/Delta could result in
other benefits associated with the avoidance of listing additional
species and associated increased flexibility in water management and
the avoided costs of further collapse of the ecosystem and its
associated fisheries and dependent communities.
Summary of Costs and Benefits
Monetized social costs and benefits of the federal proposals are
not directly comparable in this analysis because some use benefits to
fisheries and non-use benefits of ecological improvement and species
diversity cannot be estimated. However, two conclusions can be drawn:
The implementation plan for the federal proposals has not
yet been developed, thereby making it difficult to project actual
levels of economic impacts. However, it is reasonable to assume that
cost-effective solutions will be pursued that include a flexible
approach to meeting Delta requirements. Thus, economic costs in the
agricultural sector are estimated to be $20 million on average and $25
million for the urban sector. However, the overall costs may be lower
than the total, given that at least some of the increases in urban
costs will be payments to agriculture for water transferred. The
benefits are estimated to be $10 million from improved commercial
fisheries, and unquantified but important ecological, scientific,
educational and existence values.
Costs and benefits are difficult to compare directly in
this case because of the non-marginal nature of ecosystem protection
and species protection. These benefits, including preventing the
extinction of several candidate or listed species and preventing the
collapse of the Bay/Delta ecosystem, account for the majority of
benefits.
Given both the monetary estimates of benefits and the
qualitative information on benefits not expressed in dollar value, EPA
believes that the proposal can be implemented in a cost-effective
manner where a healthy estuary and fisheries can co-exist with a strong
agricultural and urban sector. Given all the available information, the
benefits are commensurate with the costs.
Comprehensive analyses of the incremental response of
costs and benefits to marginal changes in EPA's proposed rule have not
been prepared. However, EPA has developed in the draft RIA a method for
roughly estimating incremental changes in economic costs based on
changes in the number of days of compliance with the proposed salinity
criteria at particular locations in the estuary. These estimates are
based on the estimates of the flows necessary to maintain the criteria
at the target locations. For example, the difference in water supply
impacts between a day of protection at Chipps Island and a day of
protection at the Confluence is 12,276 AF/year. These estimates of the
difference in water supply impact can be compared to the dollar value
of that water, which the draft RIA estimates as being $90 per AF.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. Sec. 601, et seq.,
requires EPA and other federal agencies to prepare an initial
regulatory flexibility analysis (IFRA). EPA's internal guidelines
require that an IFRA include a profile of the small entities and
determine if the statutory authority allows consideration of
alternative implementation actions.
EPA has determined that the action does not allow consideration of
alternative implementation actions. First, under the Clean Water Act,
water quality criteria must be based solely on science. Second, EPA is
promulgating water quality criteria that in effect supplement state
criteria that fail to meet the requirements of the CWA.
EPA has prepared an abbreviated regulatory flexibility analysis.
It's findings include the following:
Minimizing the impacts on small farms can be accomplished
by developing the least costly implementation plan, which distributes
water supply reductions widely and facilitates trading between water
districts. Given that allocation of water at the farm level depends
primarily on decisions at the irrigation district level, determining
which size farm would experience water supply impacts will also be
difficult at the State level.
F. Availability of the Record
The administrative record concerning the California Bay/Delta Water
Quality Standards discussed in this preamble is available for public
inspection and copying at the Environmental Protection Agency, Region
IX Office, Water Quality Standards Branch, 75 Hawthorne Street, San
Francisco, California 94105.
G. Specific Issues for Commenters to Address
Written public comments are invited on all issues raised in this
notice. EPA is especially interested in soliciting public comments on
the following issues:
1. EPA requests comments on the feasibility of setting water
quality criteria based on a smooth function rather than on the mean
value for each water year type categories.
Testimony at recent State Board hearings criticized the use of
water year type categories. Because water year types can change as the
year progresses, criteria based on the historical mean for each water
year type can cause major changes in project operations and habitat
conditions if a given year shifts from one water year type to another.
For example, a later season storm could cause the water year type to be
reclassified from the below normal category to the above normal
category. This shift would increase the number of required days of
compliance at Chipps Island from 119 to 144 days. Such large and sudden
changes are inefficient for water resource management and can harm
aquatic resources by dewatering or washing away newly spawned eggs. One
formulation of the criteria that could provide for more gradual shifts
is described below.
California DWR, USBR, and others have suggested that a smooth
function should replace the use of means for each water year type
category. Use of these smooth function equations would result in the
same average number of days required for each year type but would
involve higher numbers in wetter years within the category and lower
numbers for the drier years within each category. Incorporation of a
smooth function would likely ease the actual operational procedure to
meet the criteria and would avoid the relatively large scale changes in
operations that might come from a shift in the determination of year
type as spring progresses.
EPA has discussed the use of a smooth function criteria with water
project operators and the State Board, and has thus far received a very
positive response. Because it is a new approach that has not received
substantial scrutiny in California, EPA's proposal above relies on the
traditional water year type classification. However, if public comments
do not raise any significant issues preventing its use, EPA would be
inclined to use the smooth function criteria as an alternative to the
water year type classification.
The discussion below describes one possible approach to the
construction of a smooth function criteria, and compares the potential
effects of those functions with the traditional water year type
criteria. Because no critically dry years occurred in the reference
period it is necessary to extrapolate from the four year types for
which there are data to the critical year type. Fortunately, there is a
very high correlation among the four points (Figs. 1 and 2). These
extrapolations allow the required number of days at Roe and Chipps
Islands in each year type to be described as a pair of smooth
functions.
Port Chicago Equation (see Figure 1). Days=76 * Index-3.3 *
(index)\2\-299
This equation produces a wide range of required number of days
within most year types and in all but wet years would involve a range
of about thirty days. Use of the equation would result in little
variance within wet years.
BILLING CODE 6560-50-P
TP06JA94.008
BILLING CODE 6560-50-C
------------------------------------------------------------------------
Port Chicago (64 km) Mean Min Max
------------------------------------------------------------------------
Wet............................................. 133 122 150
Above normal.................................... 105 94 121
Below normal.................................... 78 57 93
Dry............................................. 33 16 56
Critical........................................ 0 0 15
------------------------------------------------------------------------
Figure 3.
The relationship between number of days at Port Chicago and
Sacramento Basin Index (Figure 3) yields differences of required number
of days within year types of as much as 40 days in dry years. With the
difference in flows required to sustain the isohaline at Port Chicago
(29,000 cfs) and Chipps Island (12,000 cfs), the theoretical difference
in water costs within a year type could be substantial. The actual
costs are likely to be lower, however, because flows sufficient to
trigger the standard are often followed by a considerable period of
elevated flows sufficient to meet the required number of days. These
differences are likely to be fully realized in dry and critical years
when conditions in the Delta are fully controlled by the projects.
Chipps Island Equation (see figure 2)
Days = 26.3 * Index - 1.13 * (index) - 4.6
This equation results in small differences within each of the year
types, with the exception of critical years.
BILLING CODE 6560-50-P
TP06JA94.009
BILLING CODE 6560-50-C
------------------------------------------------------------------------
Chipps Island (74 km) Mean Min Max
------------------------------------------------------------------------
Wet............................................. 148 142 150
Above normal.................................... 144 133 141
Below normal.................................... 119 118 132
Dry............................................. 116 105 118
Critical........................................ 90 66 104
------------------------------------------------------------------------
Figure 4.
The relationship between number of days at Chipps Island and
Sacramento Basin Index (Figure 4) yields very small ranges about the
mean for all but critical years. However, use of a smooth function is
justified because of the open-ended nature of critical years. The
driest year on record had a Sacramento Basin Index of 3.1, but the
index theoretically could approach 0. This wide span of possible index
values in the critical year type is best handled by the smooth function
described. The smaller flows this standard entails (12,000 cfs at
Chipps and 5,800 cfs at the confluence) and the small range of values
within all but critical year types yields smaller differences in water
costs.
In summary, a smooth function to determine the number of days of
compliance would result in the same average number of days for each
year type, but would more accurately reflect differences within these
categories. Hence, small adjustments could be made in project
operations as the water year progresses.
The use of a smooth function addresses, to some extent, the issue
of adjusting habitat protection requirements in extended droughts. The
present identification of year type is based on the Sacramento River
Index. That index combines three variables: (1) Precipitation in the
April through September period when flood control requirements are
reduced and more precipitation can be held in reservoirs, (2) the index
of the previous year which partly reflects the amount of carry-over
storage, and (3) precipitation in the October through March period. The
index weights these three factors in a 40:30:30 ratio. For the purpose
of protecting estuarine habitat, the precipitation in February to June
and the amount of carry-over storage may be more important than
precipitation in the rest of the year. EPA is requesting comments on
the possibility of modifying the Sacramento River Index for purposes of
developing the salinity criteria as follows:
(a) The criteria could calculate an index weighted more toward the
previous year's Sacramento River Index and the February through June
precipitation. A 40:40:20 ratio or even 50:50:0 index might be a more
appropriate basis for the criteria.
(b) The criteria could start each February with a baseline set of
requirements and add or subtract days at each of the two downstream
sites based on how conditions in each month differ from the average
conditions for that month.
2. EPA is including a 14 day rolling averaging period in its
proposed salinity criteria. As discussed above, the 14 day period was
included to assure that the range of spring to neap tidal conditions
was included in the averaging period. Accounting for the effects of
tidal influences is important, especially for the downstream compliance
location at Roe Island. During its discussions of this proposal with
the operators of California's major water projects, it was suggested
that a 28 day rolling average or other averaging period may be more
appropriate, so that the entire tidal cycle is included. EPA's
preliminary review of this suggestion indicates that it would be an
appropriate device for accounting for tidal influences, and would not
have any detrimental impact on protecting the designated Estuarine
Habitat use. Therefore, if public comments do not raise any significant
issues, EPA would be inclined to use a 28 day averaging period. EPA,
therefore, is requesting comments on the following alternative
approaches to the averaging period:
(a) The proposed criteria could be measured using a 28 day rolling
average, thereby lengthening the averaging period to encompass the full
range of tidal strengths and giving an overall effect of the tidal
cycle.
(b) The criteria could measure compliance with a rolling average
but allow discontinuities in the averaging period. Thus, days on which
meteorological conditions interfere with achieving the 2 ppt criteria
at Roe Island would be counted instead as days of meeting the criteria
upstream at Chipps Island. This approach could be applied only until
all days that are required at the upstream site are met.
3. As a part of EPA's coordination process in developing this
proposal, the Agency has discussed its proposed criteria at length with
the operators of California's major water projects. These operators,
who will have substantial responsibilities under any implementation
plan developed by the State Board, raised a question about how
compliance with the 2 ppt salinity criteria should be measured. Under
existing operational models, these operators would translate the
proposed criteria into a set of flow parameters, and would operate the
system pursuant to those flow parameters so as to achieve the 2 ppt
salinity criteria at the targeted sites. However, because all models
contain imperfections, it has been proposed that the operators should
actually model compliance at a site somewhat downstream of the targeted
site so as to provide a ``margin of error'' or a ``confidence
interval''.
EPA's preliminary review of this issue suggests that use of a
``confidence interval'' of this kind is unwarranted, for two primary
reasons. First, the model that predicts the location of the 2 ppt
isohaline based on flows is extremely accurate. EPA's preliminary
review of the model's accuracy during the five months covered by the
proposed salinity criteria, using historical data, found that the model
correctly predicts the number of days for the isohaline position more
than 95 percent of the time. Second, the use of a 28 day averaging
period, as described above, would adequately address most of the
variability associated with factors not included in the salinity-flow
model. For these reasons, EPA believes that the use of these proposed
confidence intervals would require substantial additional flows through
the estuary without any corresponding ecological benefit to the
Estuarine Habitat designated use.
EPA expects that the State Board will develop an implementation
plan for these Estuarine Habitat criteria by changing the volume and
timing of water flows through the estuary. EPA believes that an
implementation plan that relies on the salinity-flow model, without
making additional allowances for confidence intervals as described
above, would be acceptable for purposes of protecting the designated
use. Further, EPA notes that the State's triennial review provides a
mechanism for regularly reviewing the adequacy of any implementation
decisions concerning confidence intervals for the proposed salinity
criteria.
EPA solicits comment from the public on this issue, and welcomes
any evaluation on the merits of the use of this or other forms of
confidence intervals with the proposed criteria. Specifically, EPA
requests comment on whether the proposed criteria without the above
confidence interval adjustment would be protective. Alternatively,
would a confidence interval based on an extended number of days of
compliance at the targeted sites yield the desired level of confidence
without requiring the higher flows required by the confidence interval
proposal outlined above?
4. Will these criteria be adequate to protect low-salinity habitat
conditions in wetter years? The SFEP workshop that developed the
scientific rationale for an estuarine index based their conclusions on
correlations between mean position of the 2 ppt isohaline during
appropriate months and the abundance of estuarine organisms at all
trophic levels. With the exception of mollusks, yearly measures of
abundance increase either linearly or logarithmically as the mean
location of the 2 ppt isohaline moves down the estuary.
EPA has developed its proposed Estuarine Habitat criteria based on
the number of days at particular locations in the estuary, rather than
a mean position over a series of months. These criteria have the
advantage of being more easily implemented, and more directly tie
certain salinity ranges to certain geographic locations (such as the
extensive shallows of Grizzly Bay). However, basing the number of days
on a certain historical period (such as 1940 to 1975) does not mean
that the mean position of the 2 ppt isohaline for these reference years
will be achieved. By using the historical period of 1940 to 1975 to
define the number of days at each location, we are approximating the
actual historical (late 1960's to early 1970's) mean position of the 2
ppt isohaline in drier years. However, EPA's criteria may not provide
overall conditions equal to those during the late 1960's to early
1970's. This is because the mean position of the 2 ppt isohaline in
wetter years has been substantially downstream of the wetter year
positions in the proposed rule (see Table below).
Mean Position, in km, of the February Through June 2 ppt Isohaline, by
Year Type, for 1940-1975 Historical Period and Late 1960's to Early
1970's Historical Period (Based on DAYFLOW Information and the Salinity/
Flow Relationship Developed by Kimmerer and Monismith; SFEP 1993b), and
EPA Criteria
------------------------------------------------------------------------
Year type C D BN AN W
------------------------------------------------------------------------
1940-1975....................... ...... 70 67 59 56
1964-1975....................... ...... 74 73 62 59
EPA criteria--with trigger\9\... 77 73 70 67 65
EPA criteria--without trigger... 77 76 75 74 74
------------------------------------------------------------------------
\9\The EPA criteria include the Roe Island criteria with its
``trigger'', which in some years will not be triggered. These two sets
of results indicate the mean position of the 2 ppt isohaline in the
event that the Roe Island criteria is and is not triggered.
These wetter years are an important component of the natural
hydrology; 40 percent of the last 50 years have been in the ``wet''
category. They are years of very high productivity for the estuary, and
are likely to provide a buffer for times of low productivity,
especially for those species living longer than one or two years. Such
variability also encourages diversity, such as the plant diversity in
brackish tidal marshes bordering Suisun Bay. While many of the winter/
spring flows during these years are presently considered
``uncontrollable,'' a number of new water projects have been proposed
that would capture part of these flows.
One concern about the future development of these ``uncontrolled''
flows involves a possible decrease in the frequency with which
triggering conditions will occur. The level of protection afforded by
the Roe Island standard would be reduced if additional upstream water
developments decrease uncontrolled wintertime flows, thus reducing the
frequency with which the standard is triggered. EPA welcomes comments
on how this standard should be modified to reflect future changes in
upstream water development facilities.
An additional concern about the protection of conditions in wetter
years is that some wet years are much more productive than others. By
developing standards that can be met in all wet years some of the
biological values associated with exceptional years is not included.
Part of the difficulty of developing criteria to protect the biological
value of these wetter years arises from the open-ended nature of the
wet year category. Recent wet years include years as different as 1983
and 1986. In 1983, precipitation, both rain and snow, was heavy
throughout the winter and spring. In 1986, on the other hand, a large
tropical storm produced record-setting precipitation which lasted for a
brief period and fell almost entirely as rain. Although both these were
wet years, 1983 had about three times the amount of precipitation of
1986 and, because of the heavy snowfall, a much higher amount of water
was available for use. Possible ways to protect the value of wet year
habitats include the use of triggered standards downstream of Roe
Island or by requiring more days at Roe Island in the wettest years.
EPA welcomes suggestions on the proper level of protection that
should be provided during these wetter periods.
5. One of the critical elements of EPA's proposal is the
determination of the proper historical reference period for developing
target numbers of days when the 2 ppt isohaline is at a particular
point in the estuary. As discussed above, EPA is recommending a level
of protection for the Bay/Delta similar to that existing during the
late 1960's to early 1970's. To estimate the hydrological conditions
during the late 1960's to early 1970's across the five water year
categories, EPA is proposing using the 1940 to 1975 period as the
historical reference period.
The choice of years to include in the historical reference period
can strongly affect the number of days when the 2 ppt isohaline is at a
particular point. Incremental changes in the number of days have
corresponding incremental effects on the water supply impacts of these
proposals.
Prior to the building of Shasta Dam, uncontrolled spring runoffs
resulted in as many as 150 days when the 2 ppt isohaline was located at
or below Chipps Island, even in critical years, whereas in recent years
there have been as few as 0 days. In developing the proposed rule, EPA
has used the period between October 1939 and September 1975 to
represent the period when the conditions in the estuary were sufficient
to protect the designated fisheries uses. As explained above, this span
of years provides the greatest number of examples of each year type
during the period after the massive changes in hydrology due to the
construction of the Shasta Dam on the Sacramento River and the Friant
Dam on the San Joaquin but before the most dramatic recent declines in
fishery abundance. Even so, the chosen historical reference period
contains no examples of critical years and only three examples of above
normal years.
One example of the variability of conditions within the chosen
historical reference period involves the Chipps Island location. There
is a great deal of variability in the number of days the 2 ppt
isohaline was at Chipps Island within each of the drier year types in
the historical reference period. Although the years with fewest days
occurs later in the period there are examples of later years with more
days than earlier years. The following table gives the number of days
that the 2 ppt isohaline was west of Chipps Island for each dry and
below normal year in the historical period. The latest examples of dry
years in the proposed reference period, 1964 and 1961, had the fewest
days at Chipps Island. These two dry years, however, were immediately
preceded by a dry year (1960) with a number of days at Chipps Island
substantially greater than the historical mean, and the year with the
third lowest number of days at Chipps actually occurred in 1947. The
absence of a strong pattern of decreasing days at Chipps Island over
time was the principal basis for EPA's use of as broad a historical
period as possible, the full period from 1940 to 1975, as the
historical reference period.
------------------------------------------------------------------------
Dry Below
Year years normal
------------------------------------------------------------------------
Number of days between February and June when 2 ppt
isohaline was west of Chipps Island;
1930............................................... 146 .........
1932............................................... 151 .........
1935............................................... ........ 150
1936............................................... ........ 151
1937............................................... ........ 150
1939............................................... 106 .........
1944............................................... 142 .........
1945............................................... ........ 150
1946............................................... ........ 150
1947............................................... 111 .........
1948............................................... ........ 143
1949............................................... 141 .........
1950............................................... 150 .........
1955............................................... 129 .........
1957............................................... ........ 147
1959............................................... ........ 81
1960............................................... 123 .........
1961............................................... 89 .........
1962............................................... ........ 136
1964............................................... 75 .........
1966............................................... ........ 112
1968............................................... ........ 83
1972............................................... ........ 63
1979............................................... ........ 117
1981............................................... 76 .........
1985............................................... 31 .........
1987............................................... 46 .........
1989............................................... 39 .........
------------------------------------------------------------------------
During the development of EPA's proposal, it has been suggested
that the years 1964 to 1976 could be used as an alternative historical
reference period. This period almost literally replicates the intended
late 1960's to early 1970's. EPA has not chosen that period for two
reasons. First, it is an extremely limited sample of the variation of
conditions within water year categories. Second, including the year
1976 is inappropriate, given that by 1976 the decline of certain
aquatic resources was already apparent.
Another suggested possibility is that use of the 1955 to 1975 time
period may be a better indicator of conditions in the late 1960's to
early 1970's. The 1955-1975 period excludes water years before the
CVP's pumping facilities were operational, but still provides a larger
sample across certain water year types than would using the 1965 to
1974 period alone. As the table above indicates, using this 1955 to
1975 period would decrease the number of Chipps Island days from 116 to
approximately 104 days during dry years, and from 119 to approximately
104 days during below normal years.
EPA did not use this 1955-1975 period as the historical reference
period because, as explained above, it believes the 1940 to 1975 period
provides a larger and more representative sample of hydrological
conditions across all year types similar to those in the late 1960's to
early 1970's.
Given the importance of this issue, EPA requests comments on the
suitability of the above suggestions or of other historical reference
periods for the salinity criteria. EPA is especially interested in how
the use of alternative periods could provide a better estimate of the
hydrological and ecological conditions in the estuary in the late
1960's to early 1970's. In addition, EPA is soliciting comment on
alternative approaches to developing reference conditions for water
year types for which there are limited historical examples.
6. During the spawning season, several species appear to be carried
through the Delta to Suisun Bay during periods of elevated Delta flows
caused by upstream storm events. The proposed Roe Island salinity
criteria are partly intended to protect the normal dispersal of these
young fish throughout Suisun Bay over a number of tidal cycles. As
explained in more detail above, the proposed Roe Island criteria
include a ``trigger'' that activates the criteria only after natural
hydrological conditions push the 2 ppt isohaline to Roe Island. EPA is
requesting comment on this trigger, including comment on the following
specific questions:
(a) Would a trigger at some upstream site, such as Middle Ground,
retain the desired link to storm events while ensuring a more frequent
triggering of the standard?
(b) Should the criteria be triggered only by storm events actually
occurring in the February through June period? This refinement would
prevent the criteria from being triggered, for example, solely by a
large storm occurring in January, the runoff from which may keep the 2
ppt isohaline below Roe Island into February.
(c) Should the trigger be stated as a single day when mean
salinities are less than 2 ppt, or by a longer averaging period (14
days, 28 days, etc.)?
(d) It has been suggested that the need for a trigger might be
eliminated by setting a criteria at a location further upstream. Both
USFWS and USBR have suggested developing a criteria at Middle Ground
(at roughly km 68). At this location the criteria would be triggered in
all but critical years and would thereby provide an increased level of
protection overall. Even though a Middle Ground criteria would require
more days of protection than the Roe Island criteria, the upstream
location means that the water supply impacts would be less than for the
Roe Island criteria in years when the Roe Island criteria would have
applied. It is likely that a shift of the downstream requirement from
Roe Island to Middle Ground would have higher water supply impacts on
average but lower impacts in particular years. At the same time,
however, this shift in the downstream location would mean that the
criteria would no longer be directly tied to salinities in San Pablo
Bay that have been identified as biologically important for starry
flounder, longfin smelt, and the shrimp, Crangon franciscorum.
7. Several participants in the State Board hearings stressed the
importance of avoiding consecutive years of poor habitat conditions for
short-lived species, such as Delta smelt and longfin smelt. For
example, Dr. Moyle recommended that relaxations of the Roe Island
standards to Chipps Island during dry and critical years be limited to
two consecutive years. Similarly, during the course of the Agency's
discussions with USFWS and NMFS about the potential effects of these
proposed criteria on threatened and endangered species, a question was
raised about whether the proposed criteria would adequately protect the
listed Delta smelt in an extended drought. Recent extended droughts in
the Bay/Delta watershed have lasted six or seven years, but there is
scientific evidence that droughts as long as fifty years have occurred
and could happen again. Although droughts of this magnitude are
unlikely, such a drought would have serious adverse impacts on the
estuary's fisheries resources, and especially on fishes with short life
cycles such as the Delta smelt.
At the same time, water project operators have suggested that
extended droughts impose special constraints on project operations and
deliveries, and have recommended that EPA propose relaxations of the
Estuarine Habitat criteria during extended droughts.
EPA is soliciting comments on whether it is necessary to promulgate
special criteria to deal with the issue of consecutive dry or critical
years or extended drought. EPA is particularly interested in comments
on the biological requirements of threatened and endangered fishes
during these periods, and on the operational impacts of special
protection measures during these periods.
8. In this proposed rule, EPA is relying on the Estuarine Habitat
criteria to protect the tidal wetlands bordering Suisun Bay. Tidal
wetlands provide habitat for diverse marsh, aquatic and wildlife
species, as well as special status species such as the Suisun song
sparrow, Delta tule pea, black rail, clapper rail and soft-haired
bird's beak. EPA's proposed criteria have been developed to protect
aquatic species and to provide salinity conditions similar to those in
the late 1960's to early 1970's. Therefore, many of the aquatic species
that inhabit the marsh channels should be better protected under our
proposed criteria. In addition, the proposed Estuarine Habitat criteria
are designed to provide substantially better dry and critically dry
year springtime conditions than the recent year conditions that have
caused adverse effects on the tidal marsh communities bordering Suisun
Bay. EPA therefore believes that these criteria will provide
substantially better conditions in the marshes, but is soliciting
comment as to whether additional criteria are necessary to fully
protect the marsh resources.
Although EPA does not believe that there is a sufficient scientific
record at this time to establish specific numerical salinity criteria
for the tidal wetlands, it may be possible to set narrative criteria
which could be developed into numerical criteria in the near future as
additional information becomes available. To be consistent with EPA
guidance, such narrative criteria should include specific language
about conditions that must exist to protect a designated use, and must
be quantifiable so that numeric standards can be developed (USEPA,
1990). Examples of possible narrative criteria for the Suisun Marsh
are:
(1) ``Water quality conditions sufficient to support high plant
diversity and diverse wildlife habitat throughout all elevations of the
tidal marshes bordering Suisun Bay''
(2) ``Water quality conditions sufficient to assure survival and
growth of brackish marsh plants dependent on soils low in salt content
(especially Scirpus californicus and Scirpus acutus) in sufficient
numbers to support Suisun song sparrow habitat in shoreline marshes and
interior marsh channel margins bordering Suisun Bay.''
EPA welcomes any information or recommendations on criteria to
protect the Suisun Bay tidal marshes.
9. USFWS and NMFS have expressed concern that special measures may
be necessary to protect Delta smelt in the event of a late spawn. In
particular, these agencies have suggested that if real-time monitoring
indicates that peak Delta smelt spawning occurs in late June or July,
it might be appropriate to maintain the 2 ppt isohaline in Suisun Bay
during those months to assure that juveniles remain in the suitable
rearing habitat in eastern Suisun Bay.
EPA is soliciting comment as to whether and how these measures
should be incorporated into water quality criteria, and on the
operational impacts of such criteria. In addition, EPA requests comment
on how implementation of these criteria would affect carryover storage
requirements presently imposed on water projects for the benefit of the
threatened winter-run Chinook salmon.
10. EPA is proposing salmon smolt survival criteria to protect the
Cold Fresh-Water Habitat and Fish Migration designated uses. These
criteria would address EPA's concerns with certain temperature criteria
contained in the 1991 Bay/Delta Plan that were disapproved by EPA. As
explained in more detail above, the Agency believes that it presently
has an inadequate basis to propose temperature criteria. Further, the
adoption of salmon smolt criteria provides the State with more
flexibility in determining an implementation plan protecting the
fisheries use.
EPA is soliciting comment as to whether an adequate scientific
basis exists to propose a temperature criteria alone. The Agency is
especially interested in receiving comment as to whether a temperature
criteria would provide better protection for the designated uses than
the proposed criteria, and whether a temperature criteria could be
implemented given the present operational flexibility in the estuary.
11. EPA welcomes any additional information on the effectiveness
and feasibility of installing a barrier to fish (including a sound
barrier) at the head of Georgiana Slough. Results from USFWS coded-wire
salmon smolt experiments clearly demonstrate that migrating smolts
survive poorly in the central Delta, and salmon smolt survival would be
higher if fish migrated down the main Sacramento River channel. Closure
of Georgiana Slough is one of the implementation measures that the
Delta Team of the Five Agency Chinook Salmon Committee evaluated and
recommended as a measure to increase salmon smolt survival, and
survival indices recommended by the fisheries agencies included this
measure. The major concerns over Georgiana Slough closure are:
exacerbation of the reverse flow situation in the lower San Joaquin
River, degradation of water quality conditions in the Central Delta,
and blocking of upstream migration of adult salmon. It is likely that
reverse flows would become less of a problem with a barrier in place in
Georgiana Slough if exports were balanced with San Joaquin River flows
to continue to provide positive flows in the lower San Joaquin. EPA
would like more information on whether a balance could be achieved to
provide some periods of time when a Georgiana Slough barrier would be
beneficial for salmon without causing detrimental effects on the other
species and habitats in the Delta. Since EPA's proposed salmon smolt
survival index is a criteria to protect the outmigration of smolts, and
Georgiana Slough closure is a measure that would be beneficial for
outmigrating salmon, EPA solicits comments on whether the target index
values in its proposal should be changed.
12. As explained in more detail above, EPA has based its proposed
index values for the salmon smolt survival criteria for the San Joaquin
River on recommendations by the USFWS, NMFS and California DFG at the
State Board's Interim Water Rights Hearings for the San Francisco Bay/
Sacramento-San Joaquin Delta Estuary. These recommendations include
placing a barrier at the head of Old River during migration of San
Joaquin River system smolts through the Delta (April 1 until May 31).
The Old River barrier was also recommended by the Delta Team of the
Five Agency Chinook Salmon Committee, and is one of the projects called
for in the CVP Improvement Act. However, discussions with USWFS and
NMFS carried out during EPA's consultations under the ESA have raised
questions about whether the barrier would adversely affect reverse
flows in the central Delta under certain conditions. EPA is therefore
requesting comment on the following issues:
(a) Would the proposed salmon smolt criteria index values on the
San Joaquin need to be revised if the Old River barrier is not built?
In what ways?
(b) Should EPA promulgate alternative or additional criteria that
would be effective in the event that the Old River barrier is not
constructed?
13. In addition to a barrier at the head of Old River, the USFWS
implementation recommendations for the San Joaquin also included
certain export limits and flow requirements during peak migration
periods. Export limits are also an important measure for achieving
protection for migrating smolts on the Sacramento River system,
especially if there is no barrier in place at Georgiana Slough, and are
an element of the models used to generate the salmon smolt survival
indices on the Sacramento River. EPA is concerned that there may be
implementation scenarios for the two rivers that could result in
detrimental conditions for migrating smolts even if the proposed index
values are achieved. One such possible scenario may occur if the State
Board adopts USFWS implementation recommendations on the Sacramento
River (adjusted, as described above, to account for Georgiana Slough
remaining open), but then operates the San Joaquin River so as to just
meet the proposed index values. In this case, our preliminary review
indicates that the San Joaquin River index value theoretically might be
attained with lower flows than are protective for the salmon resources.
The USFWS has substantial evidence that San Joaquin River flows are a
critical element for successful smolt migration. Protection of
migration for these runs is particularly important considering the low
abundances and poor conditions in the San Joaquin system.
The discussion above raises the possibility that the salmon smolt
criteria for the San Joaquin River system may need to be refined. We
are therefore requesting comment as to whether the proposed index
values should be revised to reflect the interrelation between
Sacramento River and San Joaquin River implementation measures
recommended by USFWS. In particular, should the proposed index values
be revised to account for the possible effects of low flow scenarios on
the San Joaquin River?
14. The Central Valley Project Improvement Act requires that
measures be taken to double the production of anadromous fish species
throughout the Central Valley watershed. EPA intends that its proposed
criteria should support this goal in the waters of the Bay/Delta
estuary. EPA appreciates any information on whether the proposed
criteria provide the necessary protection to reach this goal.
15. Dr. Wim Kimmerer has developed a salmon population model for
the Sacramento River Basin, CPOP, which includes a regression model for
the Delta based on the same USFWS data used to develop EPA's proposed
criteria (BioSystems Analysis, 1989). This model is not divided into
reaches, and uses all coded wire tag data from both ocean and trawl
recoveries. Significant independent variables include: proportion of
flow remaining in Sacramento River, flow in the Sacramento River, the
interaction between these two, and temperature at Freeport. Dr.
Kimmerer compares his analysis with the USFWS analysis, and reports
that his analysis outperforms the USFWS analysis and, in addition, that
it better models temperature effects on mortality. However, this model
uses only pre-1989 data. EPA appreciates any comments on the usefulness
of this model in predicting Sacramento River smolt survival and setting
criteria to protect Fish Migration as a designated use.
16. A number of species in the Bay/Delta estuary appear to rely on
estuarine conditions during the months of July to January. These
species include herring (primarily a Bay species), late fall-run
salmon, and juvenile striped bass. EPA welcomes any information on
habitat conditions necessary for protection of these species, and on
possible revisions to the proposed criteria that could address these
species.
17. EPA is concerned that changes in water project operations in
response to the proposed criteria may have unforeseen environmental
impacts. EPA welcomes comments as to whether there are any operational
scenarios for the CVP, SWP, and/or other water users that would
increase or decrease the ecological benefits of the proposed criteria.
In addition, EPA notes that, under the CWA, the state will conduct
triennial reviews of these and other water quality criteria to
determine whether they are adequate to protect the designated uses. At
those times, the state has the opportunity to adjust criteria that are
shown to be over or under protective of the uses. EPA welcomes comments
as to the kinds of information, such as biological resource monitoring
data, that are or will be available to measure the effectiveness of
fish and wildlife criteria in the Bay/Delta.
List of Subjects in 40 CFR Part 131
Environmental protection, Water pollution control, Water quality
standards, Water quality criteria.
Dated: December 13, 1993.
Carol M. Browner,
Administrator.
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Water Rights Phase of the Bay-Delta Estuary Proceedings. July 6,
1992. WRINT-USFWS-8.
USFWS, 1992d. Delta Smelt Work Group Conclusions. 2 pp. 1992. WRINT-
USFWS-19.
USFWS, 1992e. Delta Smelt Work Group Scenarios. 2 pp. 1992. WRINT-
USFWS-20.
USFWS, 1992f. Notice of Review, Endangered and Threatened Wildlife
and Plants. 54 FR 554-56 (January 6, 1989), also in WRINT-USFWS-15.
USFWS, 1992g. Interagency Statement of Principles, EPA, USFWS, and
NMFS. 4 pp. 1992. WRINT-USFWS-10.
USFWS, 1993. Abundance and Survival of Juvenile Chinook Salmon in
the Sacramento-San Joaquin Estuary. 1992 Annual Progress Report.
Sacramento-San Joaquin Estuary Fishery Resource Office, U.S. Fish
and Wildlife Service, Stockton, Calif. June 1993.
Wang, J.C.S., 1986. Fishes of the Sacramento-San Joaquin estuary and
adjacent waters, California: a guide to the early life histories.
Interagency Ecological Studies Program, Technical Report 9.
White, J.R. 1986. The striped bass sport fishery is the Sacramento-
San Joaquin Estuary, 1969-1979. California Fish and Game 72:17-37.
Appendix I to the Preamble--Managing Freshwater Discharge to the San
Francisco Bay/Sacramento-San Joaquin Delta Estuary: The Scientific
Basis for an Estuarine Standard (San Francisco Estuary Project, 1993)
(Excerpts)
Introduction
Aquatic resources of the Sacramento-San Joaquin Delta and upper
portions of San Francisco Bay have undergone significant declines over
the past several decades. Species characteristic of the Delta and
rivers, such as striped bass and salmon, began to decline during the
late 1970s. Prolonged drought, large diversions of fresh water, and
dramatic increases in populations of introduced aquatic species during
the 1980s and 1990s brought a number of indigenous aquatic species to
extremely low levels. Species that spend more of their lives downstream
of the Delta, including Delta smelt, longfin smelt, and many
zooplankton, maintained large populations through the 1970s, but
declined sharply after the mid-1980s. Declines in aquatic resources
have led to curtailed fishing seasons, to petitions for endangered
species status, and general concern about the health of the estuarine
ecosystem.
Concern over the impacts of increased salinity produced from the
combination of drought and high diversion rates is not limited to
aquatic communities. The few remaining fragments of brackish and
freshwater tidal marshlands are particularly vulnerable to increased
salinity or to reduced variability in salinity. Under natural
conditions, these tidal marsh communities would move upstream with the
changing salinity. But the flood plains and other lowlands suitable for
the evolution of tidal marshes are absent upstream. Tidal marshes
provide important habitat for numerous plants and animals of special
concern.
Large demands for water by the agricultural community and by
California's burgeoning urban areas make it difficult to allocate
additional freshwater for the protection of dwindling aquatic and
wetland resources of the estuary. Management of the State's water
resources necessitates a delicate balancing of needs, given the intense
and growing competition for water. If the freshwater needs of the
estuary are to be considered seriously they must be based on sensitive,
straightforward, and diagnostic indicators of the responses of the
estuarine ecosystem to patterns of freshwater inflow.
An extensive body of scientific evidence indicates that flows into,
within, and through the estuary are extremely important to organisms
that depend on the estuary for at least a portion of their life cycles.
However, the mechanisms by which flows affect different elements of the
ecosystem are not well understood. In the Bay/Delta Estuary, many
chemical and physical properties and processes are tightly linked to
flow, including proportion of water diverted, salinity at a given
point, the longitudinal position of a particular salinity range, and
alteration of the effects of toxicants through dilutions. Any of these
phenomena could be controlling a particular species, but each will also
vary with the other variables that are closely correlated with flow.
At present, the complex configuration of the Delta and the estuary,
combined with the complex withdrawal and diversion network, preclude
any simple, directly monitored measure of freshwater discharge to the
estuary. Effective protection and management of the estuary requires an
index of the estuary's response to freshwater inflow that (1) Can be
measured accurately, easily and inexpensively; (2) has ecological
significance; and (3) has meaning for nonspecialists. Net Delta
outflow, which is calculated from various measures and estimates of
water inflow and use, has been a useful tool but it does not satisfy
all of these requirements. Because of the high correlations among the
flow-related variables, the choice of a suitable index does not need to
be based on any presumed mechanism.
The San Francisco Estuary Project convened a series of technical
workshops to evaluate the responses of estuarine biota and habitats to
various conditions of salinity and flow. The workshops involved
approximately 30 scientists and policy makers with expertise in
estuarine oceanography and ecology, and in water and living resource
management. The group focused its attention on the Suisun Bay area, the
portion of the estuary downstream of the confluence of the Sacramento
and San Joaquin rivers and upstream of Carquinez Strait. Internal Delta
issues (such as gate closures, water exports, and internal flows) or
problems of downstream portions of the San Francisco Bay (such as urban
and industrial discharges) were not directly addressed by the group. No
attempt was made to incorporate all management actions that might
benefit biological communities, nor to identify what level of
environmental restoration and protection should be set based on
salinity and flow.
Identification of freshwater needs of aquatic resources has caused
conflict for a variety of reasons. Debate of scientific issues is
fundamentally different from other kinds of debate in that it should
yield to scientific investigation. Participants developed issue papers
that delineated areas of scientific agreement. Several issue papers
showed that conditions in Suisun Bay largely reflected the abundance,
recruitment, or survival not only of local species, but also of habitat
conditions for species upstream and downstream. A primary result of the
issue papers produced for this group was that almost all species
studied increased in abundance as a simple function of increased
outflow and decreased salinity. The absence of a plateau or peak in the
relationship of species abundances and outflow conditions means that
science alone cannot identify an optimal outflow. Furthermore, the
similar response of species at all ecological (trophic) levels argues
strongly that the estuary should be managed using an ecosystem approach
rather than on a species by species basis.
The technical workshops concentrated on developing the scientific
rationale for an estuarine index to measure the estuary's response to
different levels and patterns of freshwater input. Participants
recognized that economic and socio-political considerations should be
accounted for at other points in the deliberations. The needs of
society, as well as the needs of the environment, should be considered
in determining appropriate allocations of freshwater. However, the
premise of the workshops was that one should start with the best
scientific and technical judgements possible.
Many large-scale changes in the structure of the Delta have been
proposed to facilitate water use and to reduce impacts of water
withdrawal on aquatic resources. There was general recognition by the
group that the present Delta withdrawal and distribution system is a
major contributor to the declines of important species. The conclusion
and recommendations of the workshops are based upon the present water
withdrawal and distribution system and would need to be re-evaluated if
any significant alterations to that system are considered.
The conclusions and recommendations in this report were developed
by the estuarine scientists and managers who participated in one or
more of the workshops. The complete list of participants and their
affiliations are listed in Appendix D. All conclusions and
recommendations in this report were reviewed, voted on, and endorsed by
a consensus of the estuarine scientists and managers who participated
in the fourth and final workshop in the series (26 August 1992). The
term consensus is used to represent group solidarity on an issue; a
judgement arrived at by most of the scientists and managers present. In
all cases, the consensus was unanimous or nearly unanimous. The
conclusions and recommendations are arranged in a sequence that
``tracks'' the evolution of thinking of the participants. The
conclusions and recommendations reached by the group reflect the
participants' best scientific and technical judgements, not necessarily
the positions of their affiliated agencies or organizations.
The following conclusions and recommendations are intended to
provide guidance and information on how estuarine standards could be
developed and how different levels of protection of estuarine resources
could be selected.
The full justifications to these conclusions and recommendations
are contained in technical papers that accompany this report and in
other documents prepared for the San Francisco Estuary Project.
(Appendix E).
Important Conclusions and Recommendations
(1) Conclusion
Because of the complex nature of the freshwater delivery and
distribution system in the San Francisco Bay/Sacramento-San Joaquin
Delta estuary, there is at present no single, simple, accurate measure
of freshwater input to the estuary that conveys information important
to resource managers and to the public, and that is meaningful to those
with special concerns about how fluctuations in freshwater inflow to
the estuary affect habitat and the condition of the estuarine
ecosystem.
Recommendation
Estuarine standards should be developed to be used in conjunction
with flow standards. One set of standards should be based upon an index
of the physical response of the estuary to fluctuations in the input of
fresh water. These standards should have diagnostic value in providing,
throughout the year, a level of protection to the estuary and to
important ecosystem values and functions consistent with environmental
goals and objectives for the Bay-Delta estuary.
(2) Conclusion
Estuarine standards to be used in conjunction with flow standards
should be based upon an index that is simple and inexpensive to measure
accurately, that has ecological significance, that integrates a number
of important estuarine properties and processes, and that is meaningful
to a large number of constituencies.
Recommendation
Salinity should be used as an index for the development of some
estuarine standards.
Justification
In the first workshop (August 1991), participants identified and
assessed a number of indices of the estuary's responses to flow to use
in managing freshwater discharge to the estuary. The preliminary,
preworkshop, choice was the position of the entrapment zone. This index
was abandoned quickly, however. The entrapment zone is important to
estuarine ecosystem processes and functions, but at present there is no
single, straightforward ``entrapment zone index'' suitable for
monitoring the position or strength of the entrapment zone as a
function of freshwater input.
Salinity was selected as the most appropriate index because: (1)
The salinity distribution is of direct ecological importance to many
species; (2) the salinity distribution is a result of the interplay of
freshwater input, geometry of the estuarine basin, diversion of fresh
water in the Delta, and the tidal regime; and (3) salinity measurements
can be made accurately, directly, easily, and economically. Moreover,
since most of the major concerns about reductions in the freshwater
input to the estuary
FR Doc. 94-120 Water Quality Standards for Surface Waters of the Sacramento River, San Joaquin River, and San Francisco Bay and Delta of the State of California
are associated either directly or indirectly with
the loss or alteration of low salinity habitat, salinity is an ideal
index for keeping track of the extent--both area and volume--of low
salinity habitat. The salinity distribution represents the response of
the estuary to different combinations of river discharge, diversions
and withdrawals, tidal regime, and basin geometry.
(3) Conclusion
Salinity measured at about 1m above the bottom1 is an index
upon which estuarine standards should be developed. The index is a
practical way of tracking changes in habitat.
---------------------------------------------------------------------------
\1\Because the difference between surface and near-bottom
salinities is small and because the relationship between them is
reasonably well known, surface salinity could also be used. Near-
bottom salinity is recommended, however, because it is a more stable
indicator.
---------------------------------------------------------------------------
Recommendation
Standards should be developed using an index that establishes an
upstream limit of the position of the 2 near-bottom
isohaline, averaged over different periods of the year.
(4) Conclusion
Analysis of the available historical data indicates that,
throughout the year, the farther downstream the 2 near-bottom
isohaline is displaced, the greater the abundance or survival of most
species examined.
Recommendation
The downstream position of the 2 isohaline should be
unconstrained.
Justification
From the environmental perspective--an important perspective, but
not the only one--scientific uncertainty dictates taking an
environmentally conservative approach, i.e. providing enough Delta
outflow to the estuary to push the 2 isohaline farther
downstream than might be required with greater scientific certainty. It
is anticipated, and preliminary analysis supports it, that the salinity
standard--the upstream limit of the 2 near-bottom isohaline--
will vary from season to season to provide the desired level of
protection.
(5) Conclusion
Estuarine systems are characterized not only by short-term
responses to the mean salinity at any given location, but also by
responses to longer-term seasonal, annual and interannual variability
in salinity and other properties.
Recent advances in scientific understanding indicate that this
dynamic character of healthy estuarine ecosystems is particularly true
for the distribution and abundance of wetland vegetation, but also
holds for other aquatic organisms.
Recommendation
The potential importance of variations in salinity on different
time scales to the structure and dynamics of estuarine ecosystems
should be considered in developing salinity standards. Deviations from
the patterns of salinity variability in the historical data set could
increase the risk of not achieving environmental goals and objectives
even if mean positions of the 2 near-bottom isohaline were
matched with the historical data sets.
Justification
There is strong biological evidence from a number of estuaries
throughout the world that variability in flow, in circulation and
mixing, in the salinity distribution, and in the distribution of other
important properties and processes is important in maintaining a
healthy estuarine ecosystem. Therefore, variability in flow above the
threshold needed to meet the seasonal salinity standard is encouraged.
(6) Conclusions
Empirical statistical relationships were developed between a
variety of estuarine properties and resources, and the position of the
near-bottom 2 isohaline and other flow-related variables. The
relationships developed are statistical relationships. They are not
proof of cause-effect. The relationships indicate clearly, however,
that the position of the near-bottom 2 isohaline can serve as
a powerful diagnostic indicator of the condition of biological
``units'' (communities, populations) across a range of different
trophic levels.
With the information these relationships can provide, water
managers will be in a far better position to regulate freshwater
discharge to the estuarine system to produce, on the average,2
predictable and desirable ecological responses of the estuary
consistent with goals selected for the estuarine ecosystem. If this
strategy is followed, the probability of the desired ecological
response will be enhanced and the chances of undesirable ecological
surprises in the estuary will be reduced.
---------------------------------------------------------------------------
\2\Over a period of several years.
---------------------------------------------------------------------------
Because the statistical relationship between net Delta outflow and
the position of the near-bottom 2 isohaline is strong, the
position of the near-bottom 2 isohaline is an excellent
surrogate for net Delta outflow in managing freshwater input to the
estuary. The relationship may be improved further through routine
direct monitoring of the position of the 2 isohaline and a
suite of biological responses.
Recommendation
The salinity distribution should be monitored continuously at a
series of at least six stations spaced approximately five kilometers
apart and located along the channel between about Emmaton and Carquinez
Bridge. Measurements should be made at least near the surface and near
the bottom at each station. The data should be telemetered to a
convenient location for timely analysis and interpretation. These
continuous monitoring data should be supplemented with detailed surveys
to map the distribution of salinity in three dimensions. The data
should be readily available in a timely way to all interested parties.
An appropriate biological monitoring program should determine
responses of a variety of organisms to changes in position of the
2 isohaline.
Justification
During the second and third workshops, and during intersessions
between workshops, a systematic search was made to select the most
powerful tools of analysis to describe how diagnostic biological
indicators respond to changes in position of the near-bottom
2 isohaline. When data were rich enough, other variables were
included in the analyses.
The first task was to specify the most diagnostic resource
variables--the responses of indicators that would convey the maximum
amount of environmental/ecological information. In every case, the
objective was to demonstrate how these diagnostic environmental/
ecological indicators responded to changes in the position of the near-
bottom 2 isohaline and to a variety of other flow measures.
In every case, experts on the particular biological response were
consulted in selecting the appropriate averaging time for the position
of the 2 isohaline.
(7) Conclusion
The position of the near-bottom 2 salinity isohaline is
an index of habitat conditions for estuarine resources at all trophic
levels, including the supply of organic matter to the food web of
Suisun Bay, an important nursery area. In other words, well-behaved
statistical relationships exist between the near-bottom 2
isohaline and many estuarine resources for which sufficient data exist
to make appropriate analyses. Moreover, at least a rudimentary
understanding exists for the causal mechanisms underlying many of these
relationships. The location of the near-bottom 2 isohaline is
important either because it is a direct causal factor or because it is
highly correlated with a direct causal factor (e.g., diversions).
Preliminary analyses show that errors in prediction using models
which incorporate only the position of the 2 isohaline are
comparable to the errors using more complex models which incorporate
additional flow-related variables. In other words, given the present
data sets, predictive models using only the position of the near-bottom
2 isohaline perform as well as more complex models that
incorporate other variables. However, some of these other variables may
be very important in affecting habitat and the condition of biological
resources of the estuary.
Recommendations
At this time, the most appropriate basis for setting salinity
standards for the portion of the estuary on which this report
concentrates is the position of the near-bottom 2 isohaline
alone, unless it can be shown either that another variable is the
controlling variable or that incorporation of additional variables
improves the predictive capability. Further research should be
conducted to improve prediction of the responses of important estuarine
resources to variations in the position of the near-bottom 2
isohaline. That research should incorporate other variables where they
can be shown to contribute significantly.
(8) Conclusion
A number of key species are subject not only to the biological
effects of the location of the near-bottom 2 isohaline, and
therefore the effects of freshwater inflow to the estuary, but also to
the physical effects of entrainment and diversion by the various water
projects.
Recommendations
Salinity standards should be keyed to the existing city, county,
regional, state, and federal water diversion and distribution system.
Proposed changes to that system should trigger a re-evaluation of the
salinity standards to ensure that they will continue to provide the
desired level of environmental protection while retaining as much
flexibility as possible in meeting the state's other needs for water.
Since a broad class of models can be constructed, including
mechanistic and statistical models that incorporate both biological and
physical parameters and other factors such as diversions, exports, and
antecedent conditions, efforts should be enhanced to ensure a
consistent, long-term accurate measurement program to enhance these
models and to decrease the uncertainties in their application. The
ultimate goal is to have a predictive model that incorporates the
position of the 2 isohaline and other appropriate physical
and biological variables.
(9) Conclusion
Salinity standards should be based upon the best scientific and
technical knowledge. A method is needed to summarize and to advance the
state of scientific and technical knowledge of the complex
relationships between variations in the position of the near-bottom
2 isohaline during different periods of the year (and
associated Delta outflow) and a variety of diagnostic ecosystem
responses.
Recommendation
Salinity and flow-response matrices should be developed for
different biologically important periods of the year. The matrices
should summarize the existing state of knowledge of the responses of a
rich variety of estuarine organisms and communities as well as
estuarine properties and processes, to the location of the near-bottom
2 isohaline and associated freshwater discharge to the
estuary. The estuarine properties and biological responses initially
identified for inclusion in these matrices are summarized in Exhibit A.
A Matrix Manager should be appointed to oversee the development of
the summary matrices and to ensure quality control. The Matrix Manager
should orchestrate the analyses of relevant data and ensure that the
results of the analyses are cast into forms appropriate for the
intended uses.
Because estuarine habitat suitability and, therefore, estuarine
ecosystem health are not simply a function of the instantaneous
salinity distribution, the entry in each response cell of the matrix,
whenever possible, should be based upon the development of functional
relationships of estuarine properties to isohaline positions (and
freshwater input to the estuary) that incorporate lagged terms,
seasonal variability, and other water management variables. Ideally,
the input to each matrix cell would include a directory of the
appropriate model, or models, that could be used for prediction.
The proposed matrices are shorthand methods for keeping track of
advances in the state of scientific knowledge and for ensuring that the
most up-to-date scientific knowledge is used in decision-making. They
are not intended to be used as isolated regulatory tools. They are a
summary of the state of development of those tools, a guide to which
tools to use during different times of the year, and an index of where
to find them. The responsibility for development of the matrices and
for periodically updating them should be institutionalized. One
appropriate agency might be the Interagency Ecological Studies Program.
Justification
The proposed matrices are an effective shorthand way of summarizing
in a convenient format the status of a large amount of data and
information relating the responses of the estuary to fluctuations in
freshwater inflow and to other water management variables. The matrices
are a useful vehicle for summarizing the biological benefits--using a
broad array of response indicators--of positioning the near-bottom
2 salinity isohaline at various distances upstream (inland)
from the Golden Gate Bridge during different periods of the year. The
proposed matrices would provide the first quantitative and
comprehensive summary of how the San Francisco Bay/Sacramento-San
Joaquin Delta estuary ecosystem responds to fluctuations in freshwater
inflow to the estuary (Delta outflow) and to the estuary's changing
salinity regime. The matrices have further advantages. They will
provide managers, policy-makers and the public with: (1) a clear
statement by the scientific community of the current status of
understanding of the effects of different freshwater discharge-
diversion scenarios on the estuarine ecosystem; (2) an identification
of critical gaps in scientific knowledge that can be used to guide
future research and monitoring activities; and (3) a summary that is
easily updated on a cell-by-cell basis as new knowledge is developed.
The models upon which the matrices are based can serve as tools for
regulatory agencies to use in incorporating the environmental needs of
the estuary into a set of management prescriptions for storing,
releasing, and diverting water for consumptive uses. Section of the
level or degree of biological response to be achieved--the level of
environmental protection--is the responsibility of regulatory bodies
acting in response to society's priorities.
(10) Conclusion
The actual setting of salinity standards--specifying the upstream
locations of the near-bottom 2 isohaline for different
periods of the year--should be keyed to environmental goals: to
achieving and sustaining some desired biological response level
specified in terms of habitat protection or abundance and survival
rates of important and diagnostic estuarine and wetland species.
Recommendations
Goals should be expressed in terms of desired conditions for some
future time. Progress toward those goals should be monitored and
reported widely. Environmental goals for the estuary will be most
effective if they are expressed in terms of restoring conditions to
those that existed at specific historical times such as those
summarized in Exhibit B.
(11) Conclusion
At prevailing patterns of the position of the near-bottom
2 isohaline, the biological resources of the low salinity
portion of the estuary, including the Delta, have been seriously
depleted. Data from the Interagency Ecological Studies Program and the
University of California at Davis indicate clearly that species at
every trophic level are now at, or near, record low levels in the Delta
and in Suisun Bay. This is not surprising considering the recent
drought, the introduction of exotic species, and the increased
diversion of water.
Analyses of the data indicate that the abundance or survival of a
number of important species at a variety of life history states and
from a variety of trophic levels is related to the position of the
near-bottom 2 isohaline. Of the organisms whose response to
salinity has been analyzed, the farther downstream the 2
isohaline is, the higher their abundance or survival.
Almost all of the components of the estuarine community analyzed
during the workshops (e.g., organisms, habitats, and processes) show a
strong, coherent, and negative monotonic response to increased
penetration (upstream movement) of the near-bottom 2
isohaline. There is no well-defined break point that can be reliably
identified statistically in the composite relationship between the
abundance or survival of these components and the position of the
2 isohaline. In other words, the biological benefits of
downstream displacement of the 2 continue to increase over
the range of positions of the 2 near-bottom isohaline
reflected in the historical data set.
If one selects a certain level of restoration and biological
response as a goal, then one can develop statistical relationships to
prescribe the appropriate range of the position of the near-bottom
2 isohaline and the amounts of water necessary to achieve
these salinity distributions during different periods of the year.
While such action will not guarantee achieving a desired level of
resource recovery or protection, it would increase the probability of
attaining these goals.
Recommendations
A range of environmental/ecosystem restoration goals should be
selected, and analyses should be made, to determine the distribution of
the 2 near-bottom isohaline throughout the year consistent
with those goals. Historical flow and salinity data should be examined
to determine how frequently these conditions would have been met before
construction of the Central Valley Project; the State Water Project; a
variety of city, county, and regional projects that divert water; and
before the large-scale reclamation of historical tidal marshlands. The
results of these analyses would provide a valuable context within which
to evaluate the amounts of water needs to achieve a range of ecological
goals.
Appendix II to the Preamble--Determination of Historical Conditions
Appendix II summarizes the methodology used in developing the
historical conditions data presented in Table 1, above.
1. Calculating Delta Outflow Over Historical Period
Net Delta outflow at Chipps Island is estimated by performing a
water balance at the boundary of the Delta. The water balance involves
adding the total Delta inflow and Delta precipitation runoff, then
subtracting Delta channel depletions and exports. See Equation 1,
below. DWR has estimated net Delta outflow for water years 1956-present
with their flow accounting model, DAYFLOW. A similar model, using a
smaller number of measured flows, was used to estimate Delta outflow
from 1929-1962. In the years of overlap the two models yield very
similar results.
Equation 1: Delta outflow = river inflows + precipitation - channel
depletions--exports
The four components used to calculate net Delta outflow are based
on a variety of measurements. Most of the river inflows are gaged or
directly measured at some point before they enter the Delta. Local
precipitation is derived by multiplying the surface area of the Delta
by the rainfall recorded at Stockton. Local precipitation is usually a
trivial amount of flow but within-Delta uses (called channel
depletions) can be substantial. Prior to construction of Shasta Dam and
its regulation of Sacramento River flow, net Delta outflow was often
negative during summer months because channel depletions exceeded Delta
outflow. The level of channel depletions in DAYFLOW are based on
average monthly crop demands for the acreage of each crop grown on
Delta islands. Exports are directly measured at the point of diversion.
Because of the arithmetic nature of these estimates of Delta
outflow, the estimated flows cannot reflect the impacts of such factors
as the spring/neap tidal cycles, wind, etc. that would affect the
actual mean daily flow velocities in the western Delta.
2. Calculation of Historical Occurrence of 2 ppt Isohaline Position
The daily estimates of net Delta outflow from October 1, 1939 to
September 30, 1975 were used to calculate the frequency with which the
2 ppt isohaline was downstream of each of the specified positions in
each year. Isohaline position is a function of net Delta outflow on a
particular day and the isohaline position on the previous day, as
specified in Eq. 2. (Kimmerer and Monismith 1993).
Equation 2: Mean daily position of 2 ppt near-bottom isohaline (X2) on
day t: X2(t) = 10.16 + (0.945 times X2(t-1)) - (1.487 times
log10(Delta outflow))
3. Adjustment for Water Year Type
The proposed criteria were developed to reflect the average
position of the 2 ppt isohaline in different water year types,
according to the classification adopted by the State Board (SWRCB
1991). First, for each year from 1940 to 1975, the number of days on
which the 2 ppt level was attained at each target location was
tabulated. These totals were then averaged across each water year type.
Because no critical years were available for comparison during this
historical period, the average position of the 2 ppt isohaline in
critical years was extrapolated from the other year types. The
extrapolation was performed by fitting a curvilinear model to the
averages for the other year types. These extrapolations are shown in
Figures 1 and 2, above. The results of average number of days for each
year type, along with the extrapolated values for critical years, are
presented in Table 1, above.
4. Sensitivity to Starting Assumptions
No estimate of the location of the 2 ppt isohaline on October 1,
1939 was available, so the starting position in October 1939 was
assumed to be 75 km. However, sensitivity analysis showed that the
calculated isohaline position on February 1 was largely independent of
the assumed isohaline position on the preceding October 1. This
sensitivity analysis was performed as follows: for each of the ten
years from 1940 to 1949, the February 1 isohaline position was
calculated under two assumptions: (1) that the October 1 starting
position was at the Golden Gate (km 0), and (2) that the October 1
starting position was 100 km upstream of the Golden Gate. The
historical delta outflow patterns and volumes differed greatly among
these years and the calculated February 1 isohaline positions ranged
from 49 km above the Golden Gate after wet winters to as much as 72 km
above the Golden Gate during dry winters. However, by February 1 the
difference in calculated positions based on the two different starting
positions varied by no more than 0.1 km in any year.
Appendix III to the Preamble
Appendix III describes the models used to create and measure the
salmon smolt survival indices for the Sacramento and San Joaquin
Rivers. These indices and the underlying models represent the state-of-
the-art analyses of the factors critical to maintaining habitat
conditions necessary to protect cold water fish migration.
Nevertheless, as further scientific work is completed and the new data
is analyzed in the models, EPA anticipates that the models and indices
will be further refined. EPA intends that these refinements be
incorporated into the State's criteria during the triennial review
process.
Derivation of the Sacramento River Index
The smolt survival index for fall-run outmigrating smolts in the
Sacramento River Delta has been developed by the US Fish and Wildlife
Service, using coded-wire tagged hatchery-raised smolts released at
various locations and under different conditions within the Bay/Delta,
and recovered by trawl downstream. The methods are described in USFWS,
1987. Since estimates of total tagged fish in the river cross-section
(based on trawl mouth size and time fished) yielded a maximum survival
index of nearly 1.8, and the frequency distribution plot of survival
indices indicated an approximately normal distribution with a median
near 1.0, the indices were divided by 1.8 to provide biologically
meaningful survival rates.
In order to estimate the benefits of various measures to achieve
these indices, a multiple regression smolt survival model was developed
for the Sacramento River portion of the Delta. The model, based on
tagged smolt releases between 1978 and 1989, is described in Kjelson et
al, 1989; a more recent verification and analysis is described in
USFWS, 1992a and 1992b. The Sacramento River portion of the Delta was
divided into three reaches for survival analysis: (1) The Sacramento
River from Sacramento to Walnut Grove, where the Cross-Delta Channel
and Georgiana Slough divert water from the main-stem Sacramento River
into the central Delta; (2) Walnut Grove to Chipps Island (at the
confluence of the Delta river systems) via the central Delta; and (3)
Walnut Grove to Chipps Island via the Sacramento River system. Survival
indices were converted to mortalities by subtracting from 1.0, and were
correlated with ecologically meaningful factors for each reach.
Multiple regression analysis was then used to develop equations for
each reach which included the significant (p<.05) factors affecting
mortality. The equations used to calculate mortality for each reach (as
identified above) are:
M1 = -2.45925 + (0.0420748 * Avg Water Temp, deg.F, at Freeport,
CA), r2 = .39
M2 = -0.5916024 + (0.017968 * Avg Water Temp, deg.F, at Freeport,
CA) + (0.0000434 * SWP + CVP Exports), r2 = .69
M3 = -1.613493 + (0.0319584 * Avg Water Temp, deg.F, at Freeport,
CA), r2 = .32
Using these equations, USFWS calculated total mortality for the
Sacramento River Delta using an adaptation of an approach developed by
Ricker (1975) describing the combined effect of two independent sources
of mortality occurring sequentially over two distinct time periods:
MT = M1 + M2*P1 + M3*P2 -
M1*M2*P1 - M1*M3*P2
where P1 = proportion of Sacramento River flow diverted into the
central Delta at Walnut Grove through the Cross-Delta Channel and
Georgiana Slough, and P2 = proportion of Sacramento River flow
remaining in the Sacramento River. If, as happens when temperatures are
low, the term ``M1'' is negative, it will be reset to zero before
the computation above is made. Total survival is then calculated as:
ST = (1-MT)
The USFWS is also estimating survival from recovery of tagged fish
in the ocean salmon fishery. The results correlate with the
(unadjusted) trawl recovery survival indices (p<0.01; r=0.89; USFWS
1992b), and further increase confidence in the survival indices as a
good measure of migration success and habitat conditions.
Sacramento River Delta survival index values reflecting historical
habitat conditions in different types of water years (Table 2) were
calculated by the USFWS using the 1989 version of the above models,
together with historical data on temperatures, water exports, and the
percentage of Sacramento River flows diverted at Walnut Grove, as
described in USFWS 1992a. All total survival values are calculated as
monthly averages, and assume, based on past sampling results, that 17%
migrate through the Delta from the Sacramento River in April, 65% in
May, and 18% in June. At low temperatures, the Sacramento River
regression gives mortality values (m1) of less than zero,
indicating that the regression does not give biologically meaningful
results at these lower temperatures. The USFWS transforms these
negative values to zeros before calculating total survival.
Derivation of San Joaquin River Index
The smolt survival indices for the San Joaquin River Delta were
developed from coded-wire tagged smolt study results (USFWS 1992b). The
CWT experiments were specifically designed to evaluate the benefit of
constructing a barrier at the head of the Old River Channel to keep
smolts in the main channel of the San Joaquin River. Smolts diverted
into the Old River Channel are on a direct path to the State and
Federal pumping plants, and are also likely subject to high
temperatures and increased predation. The smolt survival relationship
for smolts kept in the San Joaquin River is:
y = 0.191271+.000067x
Where y = smolt survival and x = San Joaquin flow at Stockton in cfs
(r=0.68, n=8, p<0.10).
There was evidence from the individual CWT studies that water
exports had a substantial effect on survival for those smolts migrating
down the San Joaquin to Suisun Bay. For instance, separate releases in
1989 under high export conditions and low export conditions indicate
approximately double the survival under low export conditions. Although
adding exports to the regression equation did not improve it, probably
because there are not enough experimental releases under enough variety
of conditions to provide a significant relationship, the USFWS
developed an additional equation to model this factor, and used both
this equation and the above flow equation to estimate smolt survival
indices for the San Joaquin River. A discussion of the methodology is
provided in USFWS 1992a and 1992b. This additional relationship is:
y = (.341271-0.00025x1+0.00067x2)/1.8
Where x1 = CVP+SWP exports in cfs and x2 = flow at
Stockton in cfs.
Past adult escapement data was used to estimate smolt survival for
historical conditions because there is still not enough CWT information
under a broad enough variety of flow and export conditions to rely
solely on CWT study results. Escapement values on the Y axis were
replaced with survival values from 0 to 1.0. This assumes that adult
production is an indicator of smolt survival. This assumption is
generally valid, because less of the overall natural mortality occurs
after the smolts enter the ocean. The relationship is as follows:
y = (4.90106+.000286x1-.000774x2)/12
where y = smolt survival, x1 = mean daily flow at Vernalis from
March 15 to June 15, and x2 = mean daily CVP+SWP exports from
March 15 to June 15.
The USFWS used this relationship to estimate historical smolt
survival indices for various periods of time (see Table 2). Further
support for the importance of flows to salmon smolt survival comes from
CWT study results showing a significant relationship between flow at
Stockton and survival through the lower San Joaquin River (USFWS
1992a).
40 CFR part 131 is proposed to be amended as follows:
PART 131--[AMENDED]
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
2. Section 131.37 is proposed to be added to read as follows:
Sec. 131.37 California.
(a) Additional Criteria. The following criteria are applicable to
waters specified in the Water Quality Control Plan for Salinity for the
San Francisco Bay/Sacramento-San Joaquin Delta Estuary, adopted by the
California State Water Resources Control Board in State Board
Resolution No. 91-34 on May 1, 1991 which is available from the Water
Resources Control Board, State of California, PO Box 100, Sacramento,
CA 95812:
(1) Suisun Bay Salinity Criteria. (i) General rule. Salinity
(measured 1 meter above bottom) shall not exceed 2 ppt (measured on a
14-day moving average) at the stations listed in Table 1 for at least
the number of days listed in Table 1, during the months of February
through June.
Table 1. Two Parts Per Thousand (2 ppt) Salinity Criteria
------------------------------------------------------------------------
Roe Island [km Chipps Island Confluence [km
Water year type 64] [km 74] 81]
------------------------------------------------------------------------
Wet.................. 133 days....... 148 days....... 150 days.
Above normal......... 105 days....... 144 days....... 150 days.
Below normal......... 78 days........ 119 days....... 150 days.
Dry.................. 33 days........ 116 days....... 150 days.
Critically dry....... 0 days......... 90 days........ 150 days.
------------------------------------------------------------------------
The Roe Island measurements shall be made at the salinity measuring
station maintained by the U.S. Bureau of Reclamation at Port Chicago
(km 64). The Chipps Island measurements shall be taken at the Mallard
Slough Monitoring Site, Station D-10 (RKI RSAC-075) maintained by the
California Department of Water Resources. The Confluence measurements
shall be taken at the Collinsville Continuous Monitoring Station C-2
(RKI RSAC-081) maintained by the California Department of Water
Resources. Water year types shall be determined by reference to the
Sacramento Basin Water Year Type classifications, defined in paragraph
(c)(1)(i) of this section.
(ii) Exception. The 2 ppt salinity criteria need not be met at the
Roe Island station unless and until the 2 ppt salinity isohaline occurs
at the Roe Island station due to uncontrolled hydrologic conditions.
After such occurrence, the 2 ppt salinity criteria (measured on a 14-
day moving average) must be attained at the Roe Island station for the
lesser of the number of days indicated in Table 1 or the number of days
remaining in the period February 1 through June 30 after such
occurrence. (2) Salmon Smolt Survival Criteria.--(i) General rule.
Salmon smolt survival index values shall attain at least the values
indicated in Table 2.
Table 2. Salmon Smolt Survival Criteria
------------------------------------------------------------------------
Sacramento River San Joaquin River
------------------------------------------------------------------------
Water year type Index value Water year type Index value
------------------------------------------------------------------------
Wet..................... .45 Wet............... .46
Above normal............ .38 Above normal...... .30
Below normal............ .36 Below normal...... .26
Dry..................... .32 Dry............... .23
Critical................ .29 Critical.......... .20
------------------------------------------------------------------------
(ii) Computing salmon smolt survival index values for Sacramento
River. Index values on the Sacramento River shall be computed according
to the following formula:
-SRSI = 1 - (-2.45925+.0420748T)
+(-0.5916024+.017968T+.0000434E) (P1)
+(-1.613493+.0420748T) (P2)
-(-2.45925+.0420748T)*
(-.5916024+.017968T+.0000434E) * P1
-(-2.45925+.0420748T) * (-1.613493+.0420748T) * P2
where
SRSI = Sacramento River Salmon Index value
T = Average Water Temperature in Fahrenheit at Freeport
E = Average State Water Project plus Central Valley Project
Exports in cubic feet/second (cfs) (from DAYFLOW)
P1 = proportion water diverted into Delta Cross-Channel at
Walnut Grove
P2 = proportion water remaining in Sacramento River at
Walnut Grove
The index shall be computed at least monthly, weighted by the
proportion migrating during each month (or shorter time period) and
summed to estimate survival for the water year. Total survival for the
entire fall-run migration period shall either use monitoring
information collected during each water year's outmigration to
determine the specific pattern of migration for the water year, or
shall assume monthly migration to be 17% in April, 65% in May, and 18%
in June. For purposes of this computation, mortality for the Sacramento
River Reach between Sacramento and Walnut Grove (which is reflected in
the computation above by the term ``(-2.45925+.0420748T)'') shall be
reset to zero before the index is calculated if this term is negative,
as happens at low temperatures.
(iii) Computing salmon smolt survival index values for San Joaquin
River. Index values on the San Joaquin River shall be computed
according to the following formula:
SJSI = (0.341271-0.000025E+0.000067F)/1.8
where
SJSI = San Joaquin River Salmon Index value
E = Average Central Valley Project plus State Water Project
exports measured in cfs
F = Mean daily flow in cfs in San Joaquin River at Stockton,
calculated as Old River flow subtracted from San Joaquin River flow
at Mossdale. Old River flow is calculated from ratio of Brandt
Bridge flow to exports.
The index shall be computed at least monthly, weighted by the
proportion migrating during each month (or shorter time period) and
summed to estimate survival for the water year. Total survival for the
entire fall-run migration period shall either use monitoring
information collected during each water year's outmigration to
determine the specific pattern of migration for the water year, or
shall assume monthly migration to be 45% in April and 55% in May.
(b) Revised Criteria. The following criteria are applicable to
state waters specified in Table 1-1, at Section (C)(3) (``Striped
Bass--Salinity : 3. Prisoners Point--Spawning'') of the Water Quality
Control Plan for Salinity for the San Francisco Bay--Sacramento/San
Joaquin Delta Estuary, adopted by the California State Water Resources
Control Board in State Board Resolution No. 91-34 on May 1, 1991:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sampling site
Location Nos. (I-A/RKI) Parameter Description Index type Year type Dates Values
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Joaquin River at D15/RSAN018, C4/ Electrical 14-day running average Not Applicable Wet, Above April 1 to May 0.44
Jersey Point, San RSAN032, D29/ Conductivity (EC) of mean daily for the normal, and 31
Andreas Landing, RSAN038, P8/ period not more than below normal
Prisoners Point, Buckley RSAN056, -/ value shown, in mmhos. years
Cove, Rough and Ready RSAN062, C6/
Island, Brandt Bridge, RSAN073, C7/
Mossdale, and Vernalis. RSAN087, C10/
RSAN112
San Joaquin River at D15/RSAN018, C4/ Electrical 14-day running average Not Applicable Dry and critical April 1 to May 0.44
Jersey Point, San RSAN032, D29/ Conductivity (EC) of mean daily for the dry years 31
Andreas Landing and RSAN038 period not more than
Prisoners Point. value shown, in mmhos.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Definitions. Terms used in paragraphs (a) and (b) of this
section, shall be defined as follows:
(1) Water year type.
(i) Sacramento Basin Water Year Type. Water year types in the
Sacramento River basin are computed as follows:
(A) The Sacramento Basin Index is computed according to the
following formula:
ISAC=0.4X+0.3Y+0.3Z
where ISAC=Sacramento Basin Index
X = April through July Four River Unimpaired Flow in Million
Acre Feet (MAF)
Y = October through March Four River Unimpaired Flow in MAF
Z = Previous Year's Sacramento Basin Index in MAF, not to exceed
10 maf
(B) Measuring Four River Unimpaired Flow. The Four River Unimpaired
Flow for a current water year (October 1 to September 30) is a forecast
of the sum of the following locations: Sacramento River above Bend
Bridge, near Red Bluff; total inflow to Oroville Reservoir; Yuba River
at Smartville; American River, total inflow to Folsom Reservoir. The
flow determinations are made and are published by the California
Department of Water Resources in Bulletin 120 which is available from
the California Department of Water Resources, 3251 S Street,
Sacramento, CA 95816. Preliminary determinations of year classification
shall be made in February, March, and April with final determination in
May. These preliminary determinations shall be based on hydrological
conditions to date plus forecasts of future runoff assuming normal
precipitation for the remainder of the water year.
(C) Sacramento River Basin Water Year Type shall be categorized
according to the following table:
------------------------------------------------------------------------
Sacramento basin water year type Sacramento basin index value
------------------------------------------------------------------------
Wet (W)............................ 9.2 MAF.
Above normal (AN).................. < 9.2 MAF, > 7.8 MAF.
Below normal (BN).................. 7.8 MAF, > 6.5 MAF.
Dry (D)............................ 6.5 MAF, > 5.4 MAF.
Critical (C)....................... 5.4 MAF.
------------------------------------------------------------------------
(ii) San Joaquin Basin Water Year Type.
Water year types in the San Joaquin River Basin are computed as
follows:
(A) The San Joaquin Valley Index is computed according to the
following formula:
ISJ=0.6X+0.2Y and 0.2Z
where ISJ=San Joaquin Valley Index
X = Current year's April-July San Joaquin Valley unimpaired
runoff
Y = Current year's October-March San Joaquin Valley unimpaired
runoff
Z = Previous year's index in MAF, not to exceed 0.9 MAF
(B) Measuring San Joaquin Valley unimpaired runoff. San Joaquin
Valley unimpaired runoff for the current water year from the preceding
year's October 1 to September 30 of the current calendar year) is a
forecast of the sum of the following locations: Stanislaus River, total
flow to New Melones Reservoir; Tuolumne River, total inflow to Don
Pedro Reservoir; Merced River, total flow to Exchequer Reservoir; San
Joaquin River, total inflow to Millerton Lake. Preliminary
determinations of year classification shall be made in February, March
and April with final determination in May. These preliminary
determinations shall be based on hydrologic conditions to date plus
forecasts of future runoff assuming normal precipitation for the
remainder of the water year.
(C) San Joaquin Valley Water Year Type shall be categorized
according to the following table:
------------------------------------------------------------------------
San Joaquin valley water year type San Joaquin valley index value
------------------------------------------------------------------------
Wet (W)........................... 3.8 MAF.
Above normal (AN).................. < 3.8 MAF, > 3.1 MAF.
Below normal (BN).................. 3.1 MAF, > 2.5 MAF.
Dry (D)............................ 2.5 MAF, > 2.1 MAF.
Critical (C)....................... 2.1 MAF.
------------------------------------------------------------------------
(2) Water year. A water year is the twelve calendar months
beginning October 1.
[FR Doc. 94-120 Filed 1-5-94; 8:45 am]
BILLING CODE 6560-50-P
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