HomeMy WebLinkAboutFish & Game Notice 07.31.08 - Longfin Smelt COMMISSIONERS ARNOLD SCHWARZENEGGER JOHN CARLSON,JR.
Richard Rogers,President EXECUTIVE DIRECTOR
Carpinteria 1416 Ninth Street
Cindy Gustafson,Vice President Box 944209
Tahoe City Sacrantento,CA 94244-2090
Jim Kellogg Member (916)653-4899
Concord
Michael Sutton,Member (916)653-5040 Fax
Monterey 40 f.ac@fgc.ca.gov
Daniel W.Richards,Member
Upland Governor
STATE OF CALIFORNIA
Fish and Game Commission
July 31, 2008
TO ALL AFFECTED AND INTERESTED PARTIES:
This is to provide you with a copy of the notice of proposed emergency regulatory action
relating to incidental take of longfin smelt.
Sincerely,
Sherrie Koell
Associate Governmental Program Analyst
Attachments
cc
TITLE 14. Fish and Game Commission
Notice of Proposed Emergency Changes in Regulations
NOTICE IS HEREBY GIVEN that the Fish and Game Commission (Commission), pursuant to
the authority vested by sections 200, 202, 205, and 2084, of the Fish and Game Code (FGC)
and to implement, interpret or make specific said sections of said Code, proposes to re-adopt
Section 749.3, Title 14, California Code of Regulations (CCR), relating to incidental take of
longfin smelt during candidacy.
Informative Digest/Policy Statement Overview
FGC Section 2070 requires the Commission to establish a list of endangered species and a list
of threatened species. FGC Section 2074.2 provides that, if the Commission finds that the
petition provides sufficient information to indicate that the petitioned action may M warranted,
the petition is accepted for consideration and the species that is the subject of the petition
becomes a"candidate species" under the California Endangered Species Act(CESA). CESA
prohibits unauthorized take of a candidate species,just as it prohibits such take of threatened
and endangered species, from the time the Commission notifies interested parties and the
general public of its acceptance of the petition.
FGC Section 2085 provides that once the Commission gives notice pursuant to FGC Section
2074.4 that it has designated a species a candidate under CESA, all activities, whether new or
ongoing, that cause incidental take of the candidate species are in violation of the prohibition on
unauthorized take of listed or candidate species found in FGC Section 2080 unless the take is
authorized in regulations adopted by the Commission pursuant to FGC Section 2084 or the
Department of Fish and Game (Department) authorizes the take through the issuance of an
incidental take permit under FGC Section 2081 or by other means authorized by the California
Endangered Species Act(CESA).
CCR Section 749.3 would authorize and provide for take of longfin smelt during its candidacy
subject to certain terms and conditions. The objective of these regulations is to allow specified
activities to continue on an interim basis, subject to the measures in the regulations designed to
protect longfin smelt, while the Department focuses its efforts on further evaluating the status of
the species. The status report provides the basis for the Department's recommendation to the
Commission before the Commission takes final action on the petition and decides whether the
petitioned action may or may not be warranted.
The regulations as proposed in strikeout-underline format are attached to this notice. Notice of
the proposed action shall be posted on the Fish and Game Commission website at
hftp://www.fgc.ca.gov.
Section 240 Findina
Pursuant to Section 240 of the Fish and Game Code, the Commission must make the finding
that the adoption of this regulation is necessary for the immediate preservation of the public
peace, health and safety, or general welfare.
Public Comments on Proposed Emergency Regulations
In order to be considered, public comments on proposed emergency regulations must be
submitted in writing to the Office of Administrative Law(OAL), 300 Capitol Mall, Room 1250,
Sacramento, CA 95814; AND to the Fish and Game Commission, 1416 Ninth Street,
Room 1320, Sacramento, CA 95814, or via fax to (916) 653-5040 or via e-mail to
fqc0_)fqc.ca.qov. Comments must identify the emergency topic and may address the finding of
emergency, the standards set forth in sections 11346.1 and 11349.1 of the Government Code
and Section 240 of the Fish and Game Code. Comments must be received within five calendar
days of filing of the emergency regulations. Please refer to OAL's website (www.oal.ca.gov)to
determine the date on which the regulations are filed with OAL.
Specific Aaency Statutory Reauirements
The Commission has corriplied with the special statutory requirements for its emergency
regulations found at Section 240 of the Fish and Game Code. A public hearing on these
regulations will be held August 7, 2008, and the above finding that these regulations are
necessary for the immediate preservation of the public peace, health and safety, or general
welfare meets the requirements of Section 240.
Local Mandate Determination
The Commission has determined that the proposed emergency regulations do not impose a
mandate on local agencies or school districts.
Fiscal Impact
The Commission has determined that the proposed emergency regulations will not result in any
cost to any local agency or school district for which Government Code sections 17500 through
17630 require reimbursement. The Commission has determined that the proposed emergency
regulations will provide cost savings to local agencies in an undermined amount. The
Commission has determined that the proposed emergency regulations will provide cost savings
to the state in an undetermined amount. The Commission has determined that the proposed
emergency regulations will not result in costs or savings in federal funding to the State.
FISH AND GAME COMMISSION
John Carlson, Jr.
Dated: July 31, 2008 Executive Director
FISH AND GAME COMMISSION
REQUEST FOR RE-ADOPTION OF EMERGENCY
REGULATIONS
Emergency Action to Re-adopt Section 749.3, Title 14, CCR,
Re: Special Order Relating to Incidental Take of Longfin Smelt
girinchus tha During Candidacy Period
Request for Re-adoption of Emergency Regulation:
The Fish and Game Commission ("Commission") requests to re-adopt Section
749.3, Title 14, California Code of Regulations ("CCR") [Office of Administrative
Law (OAL) file number 2008-0220-02E]with minor modifications. The Findings
of Emergency for this file containing the following information: Statement/Finding
of Emergency; Authority and Reference Citations; Informative Digest; Fiscal
Impact Statement; Standard Form 399, is hereby incorporated by reference. The
objective of this regulation is to allow specified activities to continue on an interim
basis, subject to the measures in the regulation designed to protect longfin smelt,
while the Department of Fish and Game ("Department") focuses its efforts on
further evaluating the status of longfin smelt.
Emergency Regulation in Effect to Date:
On February 7, 2008, the Commission accepted a petition to list longfin smelt as
threatened or endangered under the California Endangered Species Act
("CESA"), thereby designating the longfin smelt a candidate species. On
February 7, 2008, the Commission adopted an emergency regulation pursuant to
Fish and Game Code ("FGC") Section 2084 to provide coverage for the take of
longfin smelt during its candidacy period ("2084 regulation"). The 2084
regulation was approved by OAL and became effective on February 29, 2008.
Pursuant to Government Code ("GC") sections 11346.1(e) and (h) emergency
regulations are effective for 180 days. OAL may approve two re-adoptions, each
for a period not to exceed 90 days. In the absence of re-adoption, the 2084
regulation will expire on August 26, 2008.
Statement of Emergency:
Pursuant to FGC sections 2080 and 2085, take of a candidate species is
prohibited, unless: (1) the take is authorized in a regulation adopted by the
Commission pursuant to FGC Section 2084; or (2) the Department authorizes the
take through incidental take permits issued on a project-by-project basis pursuant
to FGC section 2081. Therefore, in the absence of a 2084 regulation, individuals
engaged in otherwise lawful research and monitoring, dredging and extraction of
sand or gravel resources, or water diversion that may result in take of longfin
smelt would have to obtain a permit from the Department in order avoid liability
Page 1 of 4
and potential criminal violations of CESA for actions or activities that result in
take of the candidate species.
The issuance of individual permits authorizing incidental take it a complicated,
lengthy, and expensive process, and the Commission specifically finds that it is
not feasible for the Department to issue incidental take permits on a project-by-
project basis for the above-referenced activities that will otherwise be prohibited
during the longfin smelt's candidacy period. The Department has determined
that, with the measures outlined in the re-adopted 2084 regulation, the species
will not become immediately at risk of extinction. For these reasons, re-adoption
of the 2084 regulation is necessary to allow the continued export of water for
agricultural, municipal and industrial use along with the other specified scientific
and commercial activities. This regulation will ensure appropriate interim
protections for longfin smelt within the area covered by the petition while the
Department continues its12-month review of the status of the candidate species.
Given that the emergency circumstances that necessitated the original 2084
regulation are continuing and unchanged, the Commission requests that the
previous Finding of Emergency and Supplement to Statement of Emergency
Action be used to supplement this justification.
Compliance with Re-adoption Criteria
(1) Same or Substantially Equivalent:
Pursuant to GC section 11346.1(h), the text of a re-adopted regulation must be
the "same or substantially equivalent" to the text of the original emergency
regulation. The proposed language for the re-adopted 2084 emergency
regulation is substantially equivalent to the language of the original 2084
emergency regulation. The text of both regulations provide coverage for the take
of longfin smelt subject to certain conditions for the following activities: research
and monitoring, dredging and extraction of sand or gravel resources, local water
diversions and operation of the State Water Project and Central Valley Project
export facilities. Minor technical modifications have been made to the text of the
original 2084 regulation to provide clarification.
Specifically, the following changes have been made to the text of Section 749.3,
Title 14, CCR':
Language in section (a)(4)(B) was modified to insert a new deadline date
reflecting the fact that the re-adopted regulation will expire on a different date.
Language in (a)(4)(E) was modified to reflect the fact that the re-adopted
regulation will be in effect for"90 days" as opposed to 180 days.
1 Revisions to the original text made to correct spelling errors or realize other minor technical
edits will not be discussed.
Page 2 of 4
(2) Substantial Progress:
GC section 11346.1(h) specifies that the emergency rulemaking agency must
demonstrate that it is making "substantial progress and has proceeded with due
diligence"to comply with the standard rulemaking provisions. The Commission
has complied with this requirement by proceeding with due diligence to
determine whether or not listing the longfin smelt as a threatened or endangered
species is warranted. The Commission's forthcoming final decision regarding the
status of the longfin smelt obviates the need for permanent 2084 measures.
A 2084 regulation is an appropriate mechanism to authorize take for"Candidate"
species. Pursuant to FGC sections 2080 and 2085, take of a candidate species
is prohibited, unless: (1) the take is authorized in a regulation adopted by the
Commission pursuant to FGC section 2084 or(2) the Department authorizes the
take through incidental take permits issued on a project-by-project basis pursuant
to FGC section 2081. Therefore a 2084 regulation is an appropriate mechanism
to authorize take of a candidate species. However, a species is only a
"candidate" until the Commission decides whether listing the species as
threatened or endangered "is warranted" or"is not warranted" (FGC section
2075.5). This determination immediately follows the conclusion of the 12-month
review of the species' status by the Department (FGC section 2074-6).
Therefore, after the Commission makes the determination that listing the species
is or is not warranted, a 2084 regulation is no longer necessary or appropriate 2
because the species is no longer a candidate for listing. At that point, the
species is either protected under CESA by virtue of its listed status or is no
longer protected under CESA because it is not listed and is no-longer a
candidate for listing.
If the Commission decides that listing the longfin smelt"is warranted," the former
candidate species then becomes a listed species and all the activities resulting in
take of longfin smelt currently covered by the 2084 regulation will be required to
obtain an Incidental Take Permit (ITP) pursuant to FGC section 2081 or
otherwise obtain take coverage. ITP's are authorized for certain activities if
specified criteria are met, including minimization and full mitigation of the impacts
of the take. ITFs are issued on a project-by-project basis to ensure the
mitigation and minimization measures are narrowly tailored to the individual
project and completely protective of the species covered.
If the Commission decides that listing the longfin smelt"is not warranted," take of
the former candidate species would no longer be prohibited under CESA. Absent
pro*tected status, no mechanism, including a permanent regulation, would be
needed to authorize take of longfin smelt.
2 FGC section 2084 states:"The Commission may authorize,subject to terms and conditions it prescribes,
the taking of any candidate species...." [emphasis added]
Page 3 of 4
In summary, the Commission has complied with this requirement by diligently
pursuing its determination of whether or not listing of longfin smelt is warranted.
The inherent temporary nature of a 2084 regulation makes pursuing its
permanent status unnecessary and contrary to statute. The Commission's final
decision regarding the status of the longfin smelt will either mandate that certain
take protections are afforded the species or obviate the need to obtain take
coverage for the species.
Page 4 of 4
Section 749.3 is amended to read:
§ 749.3 Special Order Relating to the Incidental Take of Longfin Smelt
(Spirinchus thaleichthys) During Candidacy Period
The Commission finds that, based on current knowledge and the protection and
management efforts outlined in this regulation, including Exhibits A through E,
the level of habitat loss and take of longfin smelt which is likely to occur during
the period that this regulation is in effect will not cause an appreciable reduction
in the species' ability to survive and reproduce.
(a) Take Authorization
(1) Research and Monitoring
(A) Take of longfin smelt by Department personnel in the course of research
and monitoring is authorized pursuant to Section 783.1(c), Title 14, CCR.
(B) Take of longfin smelt in the course of research and monitoring by public
agencies and private parties is authorized subject to the following:
1. For ongoing research, a written, detailed project proposal
describing objectives, methods (gear, sampling schedules and
locations), efforts to minimize adverse effects to the species, and
estimated level of take of the species shall be provided to the
Regional MaRq (Manager of the Bay Delta Region at the address
specified in subsection (4) below within 45 days of this regulation
becoming effective.
2. For research which has not yet commenced, a written, detailed
project proposal describing objectives, methods (gear, sampling
schedules and locations), efforts to minimize adverse effects to the
species, and estimated level of take of the species shall be
provided to the Regional MaRgefMIngager at the address specified
in subsection (4) below.
3. The research or monitoring may commence once the Department
issues written concurrence that the research and monitoring
activities conducted are consistent with the Department's research
and monitoring programs and are sufficient to protect longfin smelt.
The Department may specify additional terms and conditions for the
protection of longfin smelt and the reporting of all data collected to
the Department.
4. Regional Manager, Bay Delta Region, P.O. Box 47, Yountville, CA
94599 -- (707) 944-5500.
(C) Notwithstanding the foregoing, at the discretion of the Department,
research and monitoring activities not addressed by the above
procedures may receive separate authorizations for take of longfin smelt
pursuant to Fish and Game Code Section 2081.
Pagel of
(2) Dredging and Extraction of Sand or Gravel Resources
Take of longfin smelt incidental to otherwise lawful dredging or extraction of
sand or gravel resources in a stream or river is authorized for the longfin
smelt candidacy period provided that any activity already required to monitor
and report the take of any fish species to the Department or a federal wildlife
agency also include the following information: the date, location and number
of any longfin smelt taken during the candidacy period. A copy of the report
shall be mailed to: Regional Manager, Bay Delta Region, P.O. Box 47,
Yountville, CA 94599 -- (707) 944-5500.
(3) Local Water Diversions
Incidental take of longfin smelt resulting from diversion of water by any local
agency, private party, or the State Water Project North Bay Aqueduct or
Suisun Marsh facilities, is authorized during the candidacy period, subject to
the following conditions:
(A) Existing unscreened diversions may continue in operation through the
candidacy period. Upon any future determination by the commission that
longfin smelt shall be added to the list of threatened or endangered
species, incidental take for such diversions must be authorized under Fish
and Game Code Section 2081(b) or, if longfin smelt become listed
pursuant to Section 1533 of Title 16 of the United States Code, be
determined exempt from the permitting requirement under Fish and Game
Code Section 2080.1.
(B) Diversions approved and constructed after the effective date of this
section shall be screened and shall use the Department of Fish and Game
Fish Screening Criteria for delta smelt (Hypomesus transpacificus) in
Exhibit A as the fish screening criteria for longfin smelt.
(C) Existing fish screens that are repaired, upgraded, or reconstructed during
the candidacy period must screen for longfin smelt by meeting the
Department of Fish and Game Fish Screening Criteria for delta smelt in
Exhibit A.
(D)Any activity already required to monitor and report the take of any fish
species to the Department or a federal wildlife agency shall also include
the following information: the date, location and number of any longfin
smelt taken during the candidacy period. A copy of the report shall be
mailed to: Regional Manager, Bay Delta Region, P.O. Box 47, Yountville,
CA 94599 (707) 944-5500.
Page 2 of 5
(4) State Water Project and Federal Central Valley Project Export Facilities
In Natural Resources Defense Council v. Kempthome (Kempthorne), the
United States Eastern District Court issued an Interim Remedial Order
Following Summary Judgment and Evidentiary Hearing which required
specific limitations on the joint operations of the State Water Project (SWP)
and the Federal Central Valley Project (CVP) in order to prevent the extinction
of delta smelt until a new delta smelt biological opinion is issued by the United
States Fish and Wildlife Service (FWS). The court has directed FINS to issue
its new opinion by September 15, 2008. When the new biological opinion is
issued, the Kempthome requirements will terminate. The Kempthome
requirements are triggered by environmental conditions and the presence of
specific delta smelt life stages and are focused on minimizing the negative
entrainment effects caused when the combined export pumping of the SWP,
operated by the Department of Water Resources (DWR) and the CVP,
operated by the U.S. Department of the Interior, Bureau of Reclamation
(Reclamation) reverses the flow in Old and Middle River (OMR). A series of
Kempthome OMR flow requirements began in late-December 2007 and will
Gentonue ontinued until June 20, 2008, sequentially targeting adult delta smelt
during migration prior to spawning, spawning delta smelt, larvae and
juveniles.
The Commission recognizes that there are statistical correlations between
negative OMR flows and take of different longfin smelt life stages, as there
are for delta smelt. There is substantial overlap in the periods when the two
species are taken by the SWP and CVP. However, adult longfin smelt can
be taken a month or more earlier than delta smelt (potentially in December).
Because longfin smelt typically spawn earlier, the larvae may be present
earlier as well (potentially in February). Consequently, concurrent take of
both delta smelt and longfin smelt may include different life stages and
magnitudes and Kempthome requirements keyed to delta smelt presence
may not match longfin smelt timing. The following measures will protect
longfin smelt during the candidacy period when OMR limits required under
Kempthome for delta smelt may not be in effect or adequately protective.
The Commission therefore authorizes take of longfin smelt incidental to the
coordinated operations of the SWP and CVP export facilities in accordance
with the following OMR limits, or the OMR limits set in Kempthome,
whichever are more-protective:
(A) Monitoring for the presence of adult (2:85mm Fork Length (FL)) and larval
longfin smelt (<20 mmFL) shall be achieved as follows:
1. For adults by standard field sampling intervals, methods and
locations of the Fall Midwater Trawl Survey, the San Francisco Bay
Study Survey and the Spring Kodiak Trawl Survey.
2. For larvae, by initiating the 20mm Survey beginning in the first two
weeks of March and conducting single tows at sampling locations
Page 3 of 5
405, 411, 418, 602, 501, 504, 519, 508, 513, 520, 703, 704, 706,
707, 711, 716, 705, 801, 802, 804, 8'09, 812, 815, 901, 902, 906,
910, 912, 914, 915, 918, 919; In thelast two weeks in March the full
20mm Survey will begin using standard survey protocol, sampling
three tows per sampling location at all 41 standard locations.
3. DWR and Reclamation shall ensure that smelt collected at the
SWP and the CVP, respectively, are preserved in formalin or
ethanol, labeled with the date and location of collection, and
transferred to the Department's Bay-Delta Region Stockton office,
4001 N Wilson Way, Stockton, CA 92405, within two business
days to the attention of Marty Gingras for a determination of sex
and reproductive status (i.e., egg stage or spent). Identification of
any larval longfin smelt collected at either facility shall be reported
within one business day to Marty Gingras at the Department's Bay-
Delta Region Stockton office.
(B) Commencing on the effective date of this regulation, DWR and
Reclamation shall protect spawning, larval, and juvenile longfin smelt by
jointly operating the CVP and SWP to achieve a daily average net
upstream (reverse) OMR flow (as computed for Kempthome compliance)
between 750 and 5,000 cfs on a seven-day running average beginning
when longfin smelt spawning is indicated by: (i) the presence of spent
female longfin smelt (2:85mm FL) in the Spring Kodiak Trawl (stations
809, 812, 815, 902, 906, 910, 912, 914, 915 on Exhibit B) or in the San
Francisco Bay Study Otter Trawl or Midwater Trawl surveys (stations 863,
864, 865 on Exhibit C), all of which are located east or south of Jersey
Point in the San Joaquin River, or south Delta channels or at either the
SWP or CVP fish salvage facilities or (ii) when larval longfin smelt
(<20mm FL) are detected in the 20mm Survey (stations 809, 812, 815;
901, 902, 906, 910, 912, 914, 915, 918 on Exhibit D) east or south of
Jersey Point in the San Joaquin River or in south Delta channels or at
the SWP or CVP fish salvage facility.
The specific biological flow objective within this range shall be set by the
Department, after consultation with the FWS, DWR and Reclamation, to
be determined on a weekly basis and based upon a Longfin Smelt Risk
Assessment Matrix (LSRAM)(Exhibit E) to be refined by the Department
in consultation with FWS, DWR, and Reclamation and the best available
scientific and commercial information concerning the distribution and
status of longfin smelt. The LSRAM is patterned after the Delta Smelt
Risk Assessment Matrix only modified to reflect longfin smelt.biology and
life stages and available information. This action is suspended during
any time: (i) the three-day average of flow in the Sacramento River at
Freeport exceeds 80,000 cfs and is resumed when the three-day average
Delta outflow falls below 40,000 cfs and adult or larval longfin smelt are
again detected east or south of Jersey Point as described above, or (ii)
the Vernalis Adaptive Management Plan is being implemented (31 days,
Page 4 of 5
typically in mid-April to mid-May). This action shall continue until, in the
reasonable discretion of the Department, after consultation with the FWS,
DWR, and Reclamation, the longfin smelt entrainment risk at each facility
is abated, or November 24jUR9 20, 2008 whichever occurs first.
(C) Notwithstanding the foregoing, this regulation shall not prevent DWR or
Reclamation from taking any action in operating the projects that is
reasonably necessary to protect human health or safety of the public,
including, but not limited to, any act or omission reasonably necessary to
protect the structural integrity of any SWP or CVP facility.
(D) In the event DWR receives a permit from the Department pursuant to
Fish and Game Code Section 2081, which governs the take of longfin
smelt, those requirements under Section 749.3(a)(4) which apply to DWR
shall be superseded by the terms of such permit.
(E) This emergency regulation shall be in effect for 48090 days. It does not
contain measures to protect pre-spawning longfin smelt or their larvae
after June 20, 2008 from the effects of project operations, which effects
can occur as early as late November or early December 2008. If this
regulation is extended, operational requirements for this December—
February period may be added by amending this regulation prior to
expiration or extension.
NOTE:
Authority cited: Sections 200, 202, 205, 240, and 2084, Fish and Game Code.
Reference: Sections 200, 202, 205, 240 and 2084, Fish and Game Code.
Page 5 of 5
FISH AND GAME COMMISSION
STATEMENT OF EMERGENCY
ACTION
Emergency Action to Add Section 749.3, Title 14, CCR,
Re: Special Order Relating to Incidental Take of Longfin Smelt
(Spirinchus thaleichthys) During Candidacy Period
1. Statement of Facts Constituting Need for Emergency Action:
The Fish and Game Commission ("Commission") is the decision-making body
that implements the California Endangered Species Act ("CESA"): As described
in greater detail below, CESA authorizes the Commission to establish lists of
threatened and endangered species, and to add or remove species from the lists
if it finds, upon receipt of sufficient scientific information, that the action is
warranted. Pursuant to Section 2084 of the Fish and Game Code ("FGC"), the
Commission may authorize, subject to the terms and conditions it prescribes, the
taking of any candidate species while the Department of Fish and Game
(Department) and Commission evaluate whether the species should be listed as
threatened or endangered under CESA. The Commission has relied on the
authority in Section 2084 to permit take of candidate species on five previous
occasions: in 1994 for the southern torrent salamander, in 1994 for the coho
salmon south of San Francisco, in 1997 and 1998 for the spring-run chinook
salmon, in 2000 for coho salmon throughout its range in California, and in 2002
for the Xantus's murrelet.
On August 14, 2007, the Commission received a petition from The Bay Institute,
Center for Biological Diversity, and Natural Resources Defense Council
(collectively referred to as "Petitioners") to take action to list longfin smelt as
threatened or endangered under CESA. The petition describes: 1) the record
low population abundance in the last four years for the San Francisco Bay-Delta
population; 2) new analyses of Bay-Delta population trends over the last 40
years; 3) evidence suggesting reduced genetic integrity of the species; 4)
evidence for a significant stock recruitment relationship for the species; and 5)
the significant threat posed to the population abundance by water management
and Delta exports. The petition also sought action by the Commission to list the
longfin smelt on an emergency basis. The Commission denied the request for an
emergency action at its October 11, 2007 meeting in Concord.
The Commission referred the petition to the Department on August 21, 2007 for a
90-day review period, as required by FGC Section 2073. The Department
determined on November 16, 2007 that there was sufficient information in the
petition to indicate that the longfin smelt's listing may be warranted and, based
on that determination, recommended that the Commission accept the petition. As
described in the evaluation report, the Department relied on information and data
in its files to interpret information in the petition.
Page 1 of 11
On February 7, 2008 the Commission decided to accept the longfin smelt as a
candidate species based on the Department's evaluation report, public
testimony, and the information in the petition. The petition identifies the following
activities as factors in the decline of longfin smelt: reductions in freshwater inflow,
loss of larval,juvenile, and adult fish from direct and indirect effects of water
diversions and export facilities, competition from non-natives species, and toxic
chemicals.
FGC Sections 2080 and 2085, prohibit the take of candidate species, unless: (1)
the take is authorized in a regulation adopted by the Commission pursuant to
FGC Section 2084 or (2) the Department authorizes the take through incidental
take permits issued on a project-by-project basis pursuant to FGC 2081.
Because the Commission designated the longfin smelt as a candidate species on
February 7, 2008, individuals and entities engaged in any activity that may result
in incidental take of longfin smelt, including the activities listed above, are at risk
of violating the FGC for unauthorized take. In the absence of these regulations,
individuals engaged in otherwise lawful research and monitoring, dredging and
extraction of sand or gravel resources, or water diversion that may result in take
of longfin smelt would have to obtain a permit from the Department in order avoid
liability and potential criminal violations of CESA for actions or activities that
result in take of the candidate species.
The issuance of individual permits authorizing incidental take is a complicated,
lengthy, and expensive process, and the Commission specifically finds that it is
not feasible for the Department to issue incidental take permits on a project-by-
project basis for the above-referenced activities that will otherwise be prohibited
during the longfin smelt's candidacy period. The Department has testified that
with the following measures the species will not, in its opinion, become
immediately at risk of extinction. For these reasons, adoption of the emergency
regulation is necessary to allow the continued export of water for agricultural,
municipal and industrial use along with the other specified scientific and
commercial activities. These regulations will ensure appropriate interim
protections for longfin smelt within the area covered by the petition while the
Department conducts a 12-month review of the status of the candidate species.
The Department requests that the Commission take emergency action to add
Section 749.3, to Title 14, CCR.
II. Express Finding of Emergency
Pursuant to the authority vested in it by FGC Section 240 and for the reasons set
forth above in the "Statement of Facts Constituting Need for Emergency Action,"
the Commission expressly finds that the adoption of these regulations is
necessary for the immediate preservation of the general welfare. The
Commission specifically finds that the adoption of these regulations will allow
Page 2 of 11
activities that may affect longfin smelt to continue during the candidacy period,
including the diversion and export of water for agricultural, municipal and
industrial use, as long as those activities are conducted in a manner consistent
with the protections specified in these regulations.
111111. Authority and Reference Citations
Authority: FGC Sections 200, 202, 205, 240, and 2084.
Reference: FGC Sections 200, 202, 205, 240 and 2084.
IV. Informative Digest
The sections below describe laws relating to listing species under CESA, the
effect of these emergency regulations, a description of related federal law, and a
policy statement overview.
A. Laws Related to the Emergency Regulations - Listing under CESA
1. Petition and Acceptance
FGC Section 2070 requires the Commission to establish a list of endangered
species and a list of threatened species. Any interested person may petition the
Commission to add a species to the endangered or threatened list by following
the requirements in Fish and Game Code Sections 2072 and 2072.3. If a petition
is not factually incomplete and is on the appropriate form, it is forwarded to the
Department for evaluation.
FGC Section 2073.5 sets out the process for accepting or rejecting a petition to
list a species and, if the petition is accepted, a process for actually determining
whether listing of the species as threatened or endangered is ultimately
warranted. The first step toward petition acceptance involves a 90-day review of
the petition by the Department to determine whether the petition contains
sufficient information to indicate that the petitioned action may be warranted. The
Department prepares a report to the Commission that recommends rejection or
acceptance of the petition based on its evaluation.
FGC Section 2074.2 provides that, if the Commission finds that the petition
provides sufficient information,to indicate that the petitioned action may be
warranted, the petition is accepted for consideration and the species that is the
subject of the petition becomes a,"candidate species" under CESA. CESA
prohibits unauthorized take of a candidate species, just as it prohibits such take
of threatened and endangered species, from the time the Commission notifies
interested parties and the general public of its acceptance of the petition. FGC
Section 86 states "Take" means to hunt, pursue, catch, capture, or kill, or attempt
to hunt, pursue, catch, capture, or kill. Killing of a candidate, threatened, or
endangered species under CESA that is incidental to an otherwise lawful activity
Page 3 of 11
and not the primary purpose of the activity constitutes take under state law.
(Department of Fish and Game v. Anderson-Cottonwood Irrigation District (1992)
8 Cal.AppAth 1554.)
FGC Section 2085 provides that once the Commission gives notice pursuant to
FGC Section 2074.4 that it has designated a species a candidate under CESA,
all activities, whether new or ongoing, that cause incidental take of the candidate
species are in violation of the prohibition on unauthorized take of listed or
candidate species found in FGC Section 2080 unless the take is authorized in
regulations adopted by the Commission pursuant to FGC Section 2084 or the
Department authorizes the take through the issuance of an incidental take permit
under FGC Section 2081 or by other means authorized by CESA,
2. Status Review Final Action on the Petition
The Commission's acceptance of a petition initiates a 12-month review of the
species' status by the Department, pursuant to FGC Section 2074.6. This status
review helps to determine whether the species should be listed as threatened or
endangered. Unlike the Department's initial evaluation, which focuses largely on
the sufficiency of information submitted in the petition, the 12-month status
review involves a broader inquiry into and evaluation of available information
from other sources. The Commission is required to solicit data and comments on
the proposed listing soon after the petition is accepted, and the Department's
written status report must be based upon the best scientific information available.
Within 12 months of the petition's acceptance, the Department must provide the
Commission a written report that indicates whether the petitioned action is
warranted (FGC Section 2074). The Commission must schedule the petition for
final consideration at its next available meeting after receiving the Department's
report (FGC Section 2075). In its final action on the petition, the Commission is
required to decide whether listing the species as threatened or endangered "is
warranted" or"is not warranted"; if listing is not warranted in the Commission's
judgment, take of the former candidate species is no longer prohibited under
CESA (FGC Section 2075.5).
B. Effect of the Emeraency Action
Section 749.3, Title 14, CCR regulations would authorize and provide for take of
longfin smelt during its candidacy subject to the following terms and conditions:
(1) Research and Monitoring
(A) Take of longfin smelt by Department personnel in the course of research
and monitoring is authorized pursuant to Section 783.1(c), Title 14, CCR.
(B) Take of longfin smelt in the course of research and monitoring by public
agencies and private parties is authorized subject to the following:
Page 4 of 11
1 For ongoing research, a written, detailed project proposal
describing objectives, methods (gear, sampling schedules and
locations), efforts to minimize adverse effects to the species, and
estimated level of take of the species shall be provided to the
Regional Manger of the Bay Delta Region at the address specified
in (iv) below within 45 days of this regulation becoming effective.
2. For research which has not yet commenced, a written, detailed
project proposal describing objectives, methods (gear, sampling
schedules and locations), efforts to minimize adverse effects to the
species, and estimated level of take of the species shall be
provided to the Regional Manger at the address specified in (iv)
below.
3. The research or monitoring may commence once the Department
issues written concurrence that the research and monitoring
activities conducted are consistent with the Department's research
and monitoring programs and are sufficient to protect longfin smelt.
The Department may specify additional terms and conditions for the
protection of longfin smelt and the reporting of all data collected to
the Department.
4. Regional Manager, Bay Delta Region, P.O. Box 47, Yountville, CA
94599.
(C) Notwithstanding the foregoing, at the discretion of the Department,
research and monitoring activities not addressed by the above
procedures may receive separate authorizations for take of longfin smelt
pursuant to Fish and Game Codes Section 2081.
(2) Dredging and Extraction of Sand or Gravel Resources
Take of longfin smelt incidental to otherwise lawful dredging or extraction of
sand or gravel resources in a stream or river is authorized for the longfin
smelt candidacy period provided that any activity already required to monitor
and report the take of any fish species to the Department or a federal wildlife
agency also include the following information: the date, location and number
of any longfin smelt taken during the candidacy period. A copy of the report
shall be mailed to: Regional Manager, Bay Delta Region, P.O. Box 47,
Yountville, CA 94599 --'(707) 944-5500.
(3) Local Water Diversions
Incidental take of longfin smelt resulting from diversion of water by any local
agency, private party, or the State Water Project North Bay Aqueduct or
Suisun Marsh facilities, is authorized during the candidacy period, subject to
the following conditions:
(A) Existing unscreened diversions may continue in operation through the
candidacy period. Upon any future determination by the commission that
longfin smelt shall be added to the list of threatened or endangered
Page 5 of I I
species, incidental take for such diversions must be authorized under Fish
and Game Code Section 2081(b) or, if longfin smelt become listed
pursuant to Section 1533 of Title 16 of the United States Code, be
determined exempt from the permitting requirement under Fish and Game
Code Section 2080.1.
(B) Diversions approved and constructed after the effective date of this
section shall be screened and shall use the Department of Fish and Game
Fish Screening Criteria for delta smelt (Hypomesus transpacificus) in
Exhibit A as the fish screening criteria for longfin smelt.
(C) Existing fish screens that are repaired, upgraded, or reconstructed during
the candidacy period must screen for longfin smelt by meeting the
Department of Fish and Game Fish Screening Criteria for delta smelt in
Exhibit A.
(D)Any activity already required to monitor and report the take of any fish
species to the Department or a federal wildlife agency shall also include
the following information: the date, location and number of any longfin
smelt taken during the candidacy period. A copy of the report shall be
mailed to: Regional Manager, Bay Delta Region, P.O. Box 47, Yountville,
CA 94599 — (707) 944-5500.
(4) State Water Project and Federal Central Valley Project Export Facilities
In Natural Resources Defense Council v. Kempthome (Kempthorne), the
United States Eastern District Court issued an Interim Remedial Order
Following Summary Judgment and Evidentiary Hearing which required
specific limitations on the joint operations of the State Water Project (SWP)
and the Federal Central Valley Project (CVP) in order to prevent the extinction
of delta smelt until a new delta smelt biological opinion is issued by the United
States Fish and Wildlife Service (FWS). The court has directed FWS to issue
its new opinion by September 15, 2008. When the new biological opinion is
issued, the Kempthome requirements will terminate. The Kempthome
requirements are triggered by environmental conditions and the presence of
specific delta smelt life stages and are focused on minimizing the negative
entrainment effects caused when the combined export pumping of the SWP,
operated by the Department of Water Resources (DV\fR) and the CVP,
operated by the U.S. Department of the Interior, Bureau of Reclamation
(Reclamation) reverses the flow in Old and Middle River (OMR). A series of
Kempthome OMR flow requirements began in late-December 2007 and will
continue until June 20, 2008, sequentially targeting adult delta smelt during
migration prior to spawning, spawning delta smelt, larvae and juveniles.
The Commission recognizes that there are statistical correlations between
negative OMR flows and take of different longfin smelt life stages, as there
are for delta smelt. There is substantial overlap in the periods when the two
species are taken by the SWP and CVP. However, adult longfin smelt can be
taken a month or more earlier than delta smelt (potentially in December).
Page 6 of 11
Because longfin smelt typically spawn earlier, the larvae may be present
earlier as well (potentially in February). Consequently, concurrent take of
both delta smelt and longfin smelt may include different life stages and
-magnitudes and Kempthome requirements keyed to delta smelt presence
may not match longfin smelt timing. The following measures will protect
longfin smelt during the candidacy period when OMR limits required under
Kempthome for delta smelt may not be in effect or adequately protective.
The Commission therefore authorizes take of longfin smelt incidental to the
coordinated operations of the SWP and,CVP export facilities in accordance
with the following OMR limits, or the OMR limits set in Kempthome,
whichever are more protective:
(A) Monitoring for the presence of adult (�85mm Fork Length (FL)) and larval
longfin smelt (<20 mmFL) shall be achieved as follows:
1. For adults by standard field sampling intervals, methods and
locations of the Fall Midwater Trawl Survey, the San Francisco Bay
Study Survey and the Spring Kodiak Trawl Survey.
2. For larvae, by initiating the 20mm Survey beginning in the first two
weeks of March and conducting single tows at sampling locations
405, 411, 418, 602, 501, 504, 519, 508, 513, 520, 703, 704, 706,
707, 711, 716, 705, 801, 802, 804, 809, 812, 815, 901, 902, 906,
910, 912, 914, 915, 918, 919; In the last two weeks in March the full
20mm Survey will begin using standard survey protocol, sampling
three tows per sampling location at all 41 standard locations.
3. DWR and Reclamation shall ensure that smelt collected at the
SWP and the CVP, respectively, are preserved in formalin or
ethanol, labeled with the date and location of collection, and
transferred to the Department's Bay-Delta Region Stockton office
within two business days to the attention of Marty Gingras for a
determination of sex and reproductive status (i.e., egg stage or
spent). Identification of any larval longfin smelt collected at either
facility shall be reportedwithin one business day to Marty Gingras
at the Department's Bay-Delta Region Stockton office. The
Department may modify the requirements of this subsection with
the mutual agreement of DWR and Reclamation for the SWP and
the CVP, respectively.
(B) Commencing on the effective date of this regulation, DWR and
Reclamation shall protect spawning, larval, and juvenile longfin smelt by
jointly operating the CVP and SWP to achieve a.daily average net
upstream (reverse) OMR flow (as computed for Kempthome compliance)
between 750 and 5,000 cfs on a seven-day running average beginning
when longfin smelt spawning is indicated by: (i) the presence of spent
female longfin smelt (2:85mm FL) in the Spring Kodiak Trawl (stations
809, 812, 815, 902, 906, 910, 912, 914, 915 on Exhibit B) or in the San
Francisco Bay Study Otter Trawl or Midwater Trawl surveys (stations 863,
864, 865 on Exhibit C), all of which are located east or south of Jersey
Page 7 of 11
Point in the San Joaquin River, or south Delta channels or at either the
SWP or CVP fish salvage facilities or (ii) when larval longfin smelt
(<20mm FL) are detected in the 20mm Survey (stations 809, 812, 815,
901, 902, 906, 910, 912, 914, 915, 918 on Exhibit D) east or south of
Jersey Point in.the San Joaquin River or in south Delta channels or at
the SWP or CVP fish salvage facility.
The specific biological flow objective within this range shall be set by the
Department, after consultation with the FWS, DWR and Reclamation, to
be determined on a weekly basis and based upon a Longfin Smelt Risk
Assessment Matrix (LSRAM)(Exhibit E) to be refined by the Department
in consultation with FWS, DWR, and Reclamation and the best available
scientific and commercial information concerning the distribution and
status of longfin smelt. The LSRAM is patterned after the Delta Smelt
Risk Assessment Matrix only modified to reflect longfin smelt biology and
life stages and available information. This action is suspended during
any time: (i) the three-day average of flow in the Sacramento River at
Freeport exceeds 80,000 cfs and is resumed when the three-day average
Delta outflow falls below 40,000 cfs and adult or larval longfin smelt are
again detected east or south of Jersey Point as described above, or (ii)
the Vernalis Adaptive Management Plan is being implemented (31 days,
typically in mid-April to mid-May). This action shall continue until, in the
reasonable discretion of the Department, after consultation with the FWS,
DWR, and Reclamation, the longfin smelt entrainment risk at each facility
is abated, or June 20, 2008 whichever occurs first.
(C) Notwithstanding the foregoing, this regulation shall not prevent DWR or
Reclamation from taking any action in operating the projects that is
reasonably necessary to protect human health or safety of the public,
including, but not limited to, any act or omission reasonably necessary to
protect the structural integrity of any SWP or CVP facility.
(D) In the event DWR receives a permit from the Department pursuant to
Fish and Game Code Section 2081, which governs the take of longfin
smelt, those requirements under Section 749.3(a)(4) which apply to DWR
shall be superseded by the terms of such permit.
(E) This emergency regulation shall be in effect for 180 days. It does not
contain measures to protect pre-spawning longfin smelt or their larvae
after June 20, 2008 from the effects of project operations, which effects
could occur as early as late November or early December 2008. If this
regulation is extended, operational requirements for this December—
February period may be added by amending this regulation prior to
expiration or extension.
C. Existing, Comparable Federal Regulations or Statutes
The Federal Endangered Species Act (FESA)(16 U.S.C. Section 1531 et seq.)
includes a listing process that is comparable to the listing process under CESA.
Page 8 of 11
Petitioners submitted a petition to the FWS to list the longfin smelt under FESA at
the same time they submitted a petition to the Department. The FWS has not
taken action on the petition.
FESA Section 4(d) (16 USC Section 1533 (d)) is similar in some respects to
Section 2084 of FGC. Section 4(d) authorizes the National Marine Fisheries
Service (NMFS) or the FWS to issue protective regulations prohibiting the take of
species listed as threatened. These regulations, also called "4(d) rules," may
include any or all of the prohibitions that apply to protect endangered species and
may include exceptions to those prohibitions. The 4(d) rules give the NMFS and
the FWS the ability to craft comprehensive regulations to apply to particular
activities that may result in a take of a threatened species, in a manner similar to
the Commission's authority to prescribe terms and conditions pursuant to Section
2084 during the species candidacy period.
Similarly, the Migratory Bird Treaty Act provides for protection of migratory birds
with a definition of'lake" which includes all portions of the FGC Section 86
definition of"take". In addition, the Act provides for the Secretary of the Interior to
adopt regulations determining the extent to which "take"will be allowed.
D. Policy Statement Overview
The objective of these regulations is to allow specified activities to continue on an
interim basis, subject to the measures in the regulations designed to protect
longfin smelt, while the Department focuses its efforts on further evaluating
valuating the
status of the species. The Department's evaluation of the species during the
candidacy period will result in the status report described in Section IV.A.2
above. The status report provides the basis for the Department's
recommendation to the Commission before the Commission takes final action on
the petition and decides whether the petitioned action may or may not be
warranted.
E. Update
A non-substantive change was made to the regulatory text which was
mailed to interested and affected parties on February 7, 2008. The mailing
address for the Regional Manager, Bay Delta Region, was changed from
the street address to the Post Office Box for that Department of Fish and
Game office due to concerns regarding mail theft.
V. Specific Agency Statutory Requirements
The Commission has complied with the special statutory requirements for its
emergency regulations found at FGC Section 240. A public hearing on these
regulations was held on February 7, 2008, and the above finding that these
Page 9 of 11
regulations are necessary for the immediate preservation of the general welfare
meets the requirements of Section 240.
VL Impact of Regulatory Action
The potential for significant statewide adverse economic impacts that might result
from the proposed regulatory action has been assessed, and the following initial
determinations relative to the required statutory categories have been made:
(a) Significant Statewide Adverse Economic Impact Directly Affecting
Businesses, Including the Ability of California Businesses to Compete with
Businesses in Other States;
(b) Impact on the Creation or Elimination of Jobs Within the State, the
Creation of New Businesses or the Elimination of Existing Businesses, or
the Expansion of Businesses in California; and,
(c) Cost Impacts on a Representative Private Person or Business:
The Commission has determined that adoption of Section 749.3, Title 14,
CCR as an emergency regulation pursuant to FGC Section 2084 allows
continued scientific research and monitoring; dredging, gravel and sand
extraction; and deliveries of water for agricultural municipal, industrial, and
residential use during the longfin smelt candidacy, subject to specified
terms and conditions. The Commission has determined that this
emergency regulation will prevent potentially significant local and
statewide adverse impacts that might result from the disruption of water
deliveries and other activities. In the absence of this emergency
regulation private persons and business could be required to obtain
individual take permits for longfin smelt, on a project-by-project basis
during the candidacy period and would have to cease existing on-going
activities pending receipt of a CESA authorization or be at risk of
enforcement actions including fines and other penalties.
(d) Costs or Savings to State Agencies or Costs/Savings in Federal Funding
to the State; and,
(e) Nondiscretionary Costs/Savings to Local Agencies:
The Commission has determined that adoption of Section 749.3, Title 14,
CCR as an emergency regulation pursuant to FGC Section 2084 will
provide cost savings to the state and local agencies in an undetermined
amount. In the absence of the emergency regulation, the Department
would have to authorize take by permit on a project-by-project basis for
the Department of Water Resources, affected local water agencies, and
others.
(f) Programs Mandated on Local Agencies or School Districts:
Page 10 of 11
The Commission has determined that the adoption of Section 749.3, Title
14, CCR as an emergency regulation does not impose a mandate on local
agencies or school districts.
(g) Costs Imposed on Any Local Agency or School District that is Required to
be Reimbursed Under Part 7 (commencing with Section 17500) of
Division 4; and
(h) Effect on Housing Costs:
The Commission has determined that the adoption of Section 749.3, Title
14, CCR as an emergency regulation will not result in any cost to any local
agency or school district for which Government Code sections 17500
through 17630 require reimbursement and will not affect housing costs.
Page 11 of 11
FISH AND GAME COMMISSION
SUPPLEMENT TO STATEMENT OF EMERGENCY
ACTION
Emergency Action to Add Section 749.3, Title 14, CCR,
Re: Special Order Relating to Incidental Take of Longfin Smelt
(Spirinchus thaleichthys) During Candidacy Period
I. Need for Emergency Action for Research and Monitoring Activities:
Subsection 749.3(a)(1) Research and Monitoring
This section of the 2084 Regulation is necessary to avoid serious harm to the general
welfare. If the 2084 Regulation is not adopted to include this section, the Department of
Fish and Game, public entities and private parties will be deprived of critical information
and knowledge regarding the longfin smelt and other imperiled species. Studies that
have been going on for the last 40 years and that form the basis for critical decision
making in the Delta will be put at risk if the 2084 Regulation is not approved.These
studies operate on a continuous basis and rely on that predictability in coming to
scientific conclusions about the data they acquire. It is critical that each year the
Department track where various fish species are in the Delta system and at which life
stage they are at critical times of the year. Those critical times include the period
immediately following the effective date of the regulation making longfin smelt a
candidate.
The conclusions from these data are used to make important environmental and policy
decisions that rely on the most complete and current information. The decisions often
have huge implications for the general welfare. For example, the Department is relying
on being able to conduct research and monitoring studies to complete its status review
of the longfin smelt to determine if listing of the species under the California Endangered
Species Act (CESA) as threatened or endangered is warranted, as required by Section
2074.6 of the Fish and Game Code. Whether or not this species becomes listed will
have significant implications for members of the public that rely on the Delta for water,
food or business. If the 2084 Regulation is not approved, adequate evaluation and
protection of longfin smelt, which are in an unprecedented state of decline, would be
severely impaired, years of data would be in jeopardy of becoming ineffectual or
irrelevant and the public will be disserved by decisions being made without the best
possible science.
Further, the Department and other entities are under a legal mandate under the Natural
Resources Defense Council v. Kempthome(Kempthorne) decision to conduct various
research and monitoring studies for the delta smelt, and it is certain that the bycatch of
those studies will include longfin smelt. The Department of Water Resources (DWR)
and the United States Bureau of Reclamation (USBR) have additional duties to conduct
monitoring studies per the conditions in their water right permits (Decision 1641 issued
by the State Water Resources Control Board (SWRCB)). These monitoring activities
include: (1) Environmental Monitoring Program (EMP)for the Sacramento-San Joaquin
Delta, Suisun Bay, and San Pablo Bay, (2) Fall Midwater Trawl surreys, (3) Summer
Tow Net surveys and (4) Bay studies. Without the ability to conduct this monitoring, the
SWRCB can restrict State Water Project(SWP) diversions thereby further impacting all
SWP water users. It is therefore imperative that the 2084 Regulation include research
and monitoring among the authorized activities.
It. Need for Emergency Action for Dredging and Extraction of Sand and
Gravel Resources
Subsection 749.3(a)(2) Dredging and Extraction of Sand or Gravel Resources
This section of the 2084 Regulation is necessary to avoid serious harm to the public
health, safety and the general welfare. Dredging activities are utilized to clear
waterways and water conveyance structures from unnecessary silt and debris. Without
the 2084 Regulation in place water delivery would be burdened, and water quality would
deteriorate.resulting in serious harm to the public who rely on a dependable, unpolluted
source of water. Additionally, dredging is often used, most notably by the Army Corps of
Engineers, to clear waterways or marinas for safe ship passage. If the waterways
cannot be cleared for transportation purposes, then serious harm to public safety will
result as unobstructed passage cannot be guaranteed for travel or docking.
Most extraction activities involve removing sand that may be used as a component of
concrete. The concrete may then be used by public and private parties to develop
infrastructure and enhance transportation systems. As is evident by the wide passage of
Propositions 1131, 1 C2 and I D3 in November of 2007, the public considers improved
transportation capacity and construction of roads, housing and schools (all requiring
concrete)to be an important component of maintaining the general welfare of the
populace.
The 2084 Regulation must include protection for dredging and sand/gravel extraction
activities to avoid serious harm to public health and safety by keeping water resources
moving efficiently and free of impairments, ensuring unimpaired waterways are available
for transportation purposes and facilitating the production of concrete to maintain and
create critical infrastructure.
Ill. Need for Emergency Action for Local Water Diversions:
Subsection 749.3(a)(3) Local Water Diversions
This section of the 2084 Regulation is necessary to avoid serious harm to public health
and the general welfare. If the 2084 Regulation is not adopted, existing on-going
activities would cease, resulting in disruption of water-deliveries to private persons,
businesses and local water agencies. The majority of local water diversions are used for
agricultural purposes. Absent a reliable water source, most crops cannot survive. If a
large percentage of the California agricultural industry cannot sustain crops, then
California will be faced with a food shortage resulting in much higher food prices. The
2084 Regulation is necessary to avoid serious harm to the general welfare by
maintaining a sustainable supply of affordable food. Other local water diverters include
local water agencies. Absent the 2084 Regulation, these diverters must halt or reduce
water delivery to customers. As discussed in Section IV below, the ability to deliver
water is necessary to avoid serious ham to the public health due to lack of water for
drinking and sanitation purposes.
IV. Need for Emergency Action for Central Valley Project and State Water
Project Operations:
Subsection 749.3(a)(4) State Water Proiect and Federal Central Valley Proiect Export
Facilities.
This section of the 2084 Regulation is necessary to avoid serious harm to public health
and the general welfare. If the 2084 Regulation is not adopted, the operation of the
Central Valley Project and the State Water Project (Projects), which deliver water to
central valley agriculture and twenty-two million Californians in the central and southern
portions of the State, would become unlawful and subject to possible injunction and
other serious legal sanctions immediately upon publication of the candidacy status of
longfin smelt on February 29, 2008. The twenty-two million Californians that rely on this
water for drinking, sanitation, food production and other purposes may experience halted
water delivery or reductions in water delivery. Further, dry conditions and high demand
for water in 2007 have reduced water reserve in storage thereby limiting the ability of
storage to satisfy water demand this year. DWR, the agency that operates the SWP,
requested the adoption of a 2084 regulation to address these critical concerns.
Proposition 1 B(Highway Safety,Traffic Reduction,Air Quality,and Port Security Bond Act of 2006),which
was approved by 61.4%of the voters, provided$19.9 billion in bonds to pay for construction projects for
increased capacity on state highways, upgrades to local transit and intercity rail service,air quality
improvement projects,and safety and security projects on public transit, railroad crossings,highways, and
ports.
2 Proposition 1 C(Housing and Emergency Shelter Trust Fund Act of 2006),which was approved by 57.8%
of the voters,provided$2.85 billion in bonds to pay for construction of new housing in already developed
areas,new apartments with some set-aside for low-income tenants,and new shelters for battered women
and homeless people.
3 Proposition 1 D(Kindergarten-University Public Education Facilities Bond Act of 2006),which was
approved by 56.9%of the voters, provided$10.4 billion in bonds to pay for construction of new schools,
modernization of existing schools,and improved facilities at community colleges and state universities.
EXHIBIT A
DEPARTMENT OF FISH AND GAME
FISH SCREENING CRITERIA
June 19,2000
1. STRUCTURE PLACEMENT
A. Streams And Rivers (flowing water): The screen face shall be parallel to the
flow and adjacent bankline (water's edge),with the screen face at or streamward of a
line defined by the annual low-flow water's edge.
The upstream and downstream transitions to the screen structure shall be designed
and constructed to match the bankline,minimizing eddies upstream of,in front of,
and downstream of,the screen.
Where feasible,this "on-stream" fish screen structure placement is preferred by
the California Department of Fish and Game.
B. In Canals(flowing water): The screen structure shall be located as close to
the river source as practical, in an effort to minimize the approach channel length and
the fish return bypass length. This "in canal" fish screen location shall only be used
where an "on-stream" screen design is not feasible. This situation is most common at
existing diversion dams with headgate structures.
The National Marine Fisheries Service-Southwest Region"Fish Screening
Criteria for Anadromous,Salmonids,January 1997"shall be used for these types of
installations.
C. Small Pumped Diversions: Small pumped diversions(less than 40 cubic-feet
per second)which are screened using"manufactured, self-contained" screens shall
conform to the National Marine Fisheries Service- Southwest Region"Fish
Screening Criteria for Anadromous,Salmonids, January 1997."
D.Non-Flowing Waters(tidal areas,lakes and reservoirs): The preferred
location for the diversion intake structure shall be offshore,in deep water,to
minimize fish contact with the diversion. Other configurations will be considered as
exceptions to the screening criteria as described in Section 5.17. below.
2.APPROACH VELOCITY(Local velocity component perpendicular to the screen
face)
A.Flow Uniformity: The design of the screen shall distribute the approach
velocity uniformly across the face of the screen. Provisions shall be made in the
design of the screen to allow for adjustment of flow patterns. The intent is to ensure
uniform flow distribution through the entire face of the screen as it is constructed and
operated.
B. Self-Cleaning Screens:
The U.S. Fish and Wildlife Service has selected a 0.2 feet per second approach
velocity for use in waters where the Delta smelt is found. Thus,fish screens in the
Sacramento-San Joaquin Delta and San Francisco Estuary should use this criterion for
design purposes. In addition:
1. Streams and Rivers(flowing waters) - exposure to the fish screen shall not exceed
fifteen minutes.
Approach velocities in the June 19,2000 Fish Screening Criteria that are
inapplicable if delta smelt are present are omitted.
Page 1 of 4
EXHIBIT A
DEPARTMENT OF FISH AND GAME
FISH SCREENING CRITERIA
June 19,2000
2. In Canals(flowing waters)-a bypass entrance shall be located every one-minute of
travel time along the screen face.
3.Non-Flowing Waters(tidal areas,lakes and reservoirs)-The specific screen
approach velocity shall be determined for each installation,based on the delta smelt
life stage being protected. Velocities which exceed those described above will
require a variance to these criteria(see Section 5.F.below).
C. Screens Which Are Not Self-Cleaning: The screens shall be designed with an
approach velocity one-fourth that outlined in Section B. above. The screen shall be
cleaned before the approach velocity exceeds the criteria described in Section B.
D.Frequency Of Cleaning: Fish screens shall be cleaned as frequently as
necessary to prevent flow impedance and violation of the approach velocity criteria.
A cleaning cycle once every 5 minutes is deemed to meet this standard.
E. Screen Area Calculation: The required wetted screen area(square feet),
excluding the area affected by structural components(i.e.,pore space or open area),is
calculated by dividing the maximum diverted flow(cubic-feet per second)by the
allowable approach velocity(feet per second).Example:
1.0 cubic-feet per second 10.2 feet per.second=5.0 square feet of pore space
Unless otherwise specifically agreed to, this calculation shall be done at the
minimum stream stage.
3. SWEEPING VELOCITY(Velocity component parallel to screen face)
A.In Streams And Rivers: The sweeping velocity should be at least two times
the allowable approach velocity.
B.In Canals: The sweeping velocity shall exceed the allowable approach
velocity. Experience has shown that sweeping velocities of 2.0 feet per second(or
greater) are preferable.
C.Design Considerations: Screen faces shall be designed flush with any
adjacent screen bay piers or walls,to allow an unimpeded flow of water parallel to the
screen face.
4. SCREEN OPENINGS
A.Porosity: The screen surface shall have a minimum open area of 27 percent.
We recommend the maximum possible open area consistent with the availability of
appropriate material, and structural design considerations.
The use of open areas less than 40 percent shall include consideration of increasing
the screen surface area,to reduce slot velocities, assisting in both fish protection and
screen cleaning.
B.Round Openings: Round openings in the screening shall not exceed 3.96mm
(5/32in). In waters where steelhead rainbow trout fry are present,this dimension shall
not exceed 2.38mm(3/32in).
C. Square Openings: Square openings in screening shall not exceed 3.96mm
(5/32in)measured diagonally. In waters where steelhead rainbow trout fry are
present,this dimension shall not exceed 2.38mm(3/32in)measured diagonally.
D. Slotted Openings: Slotted openings shall not exceed 2.38mm(3/32in) in
width. In waters where steelhead rainbow trout fry are present,this dimension shall
not exceed 1.75mm(0.0689in).
Page 2 of 4
EXHIBIT A
DEPARTMENT OF FISH AND GAME
FISH SCREENING CRITERIA
June 19,2000
5. SCREEN CONSTRUCTION
A. Material Selection: Screens may be constructed of any rigid material,
perforated,woven,or slotted that provides water passage while physically excluding
fish. The largest possible screen open area which is consistent with other project
requirements should be used. Reducing the screen slot velocity is desirable both to
protect fish and to ease cleaning requirements. Care should be taken to avoid the use
of materials with sharp edges or projections which could harm fish.
B. Corrosion and Fouling Protection: Stainless steel or other corrosion-resistant
material is the screen material recommended to reduce clogging due to corrosion. The
use of both active and passive corrosion protection systems should be considered.
Consideration should be given to anti-fouling material choices,to reduce biological
fouling problems. Care should be taken not to use materials deemed deleterious to
fish and other wildlife.
C.Project Review and Approval: Plans and design calculations,which show
that all the applicable screening criteria have been met, shall be provided to the
Department before written approval can be granted by the Regional Manager,Bay
Delta Region.
The approval shall be documented in writing to the project sponsor,with a copy
to the Deputy Director,Resource Management and Policy Division. Such approval
may include a requirement for post-construction evaluation,monitoring and
reporting.
D.Assurances: All fish screens constructed after the effective date of these
criteria shall be designed and constructed to satisfy the current criteria. Owners of
existing screens, approved by the Department prior to the effective date of these
criteria, shall not be required to upgrade their facilities to satisfy the current criteria
unless:
1. The controlling screen components deteriorate and require replacement(i.e.,
change the opening size or opening orientation when the screen panels or rotary drum
screen coverings need replacing),
2. Relocation,modification or reconstruction(i.e., a change of screen alignment
or an increase in the intake size to satisfy diversion requirements)of the intake
facilities, or
3. The owner proposes to increase the rate of diversion which would result in
violation of the criteria without additional modifications.
E. Supplemental Criteria: Supplemental criteria may be issued by the
Department for a project,to accommodate new fish screening technology or to
address species-specific or site-specific circumstances.
F.Variances: Written variances to these criteria may be granted with the
approval of the Regional Manager,Bay Delta Region and concurrence from the
Deputy Director,Resource Management and Policy Division. At a minimum,the
rationale for the variance must be described and justified in the request.
Evaluation and monitoring may be required as a condition of any variance,to ensure
that the requested variance does not result in a reduced level of protection for the
aquatic resources.
Page 3 of 4
EXHIBIT A
DEPARTMENT OF FISH AND GAME
FISH SCREENING CRITERIA
June 19,2000
It is the responsibility of the project sponsor to obtain the,most current version of
the appropriate fish screen criteria. Project sponsors should contact the Department of
Fish and Game and the U.S. Fish and Wildlife Service (for projects in anadromous
and fresh waters)for guidance.
Copies of the current criteria are available from the Department of Fish-and Game
Bay Delta Region; 7329 Silverado Trail/P.O. Box 46, Yountville, CA 94599,(707)
944-5500.
Technical assistance can be obtained directly from the Habitat Conservation
Branch; 1416 Ninth Street, Sacramento,CA 95814- (916) 653-1070.
The National Marine Fisheries Service Southwest Region"Fish Screening
Criteria for Anadromous Salmonids,January 1997" is available at:
h=:Hswr.ucsd.edu/hcd/fishscm.htm and from their Southwest Region, 777 Sonoma
Avenue,Room 325, Santa Rosa, CA 95402-(707)575-6050.
Page 4 of 4
EXHIBIT B
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Longfin Smelt Risk Assessment Matrix Footnotes
1 The concern index refers to the Fall Midwater Trawl longfin smelt total index(all ages)
from the 2-years previous to the calendar year of the larva/juvenile loss risk being
evaluated(e.g.,in 2008,the concern index would be FMWT 2006 and 2007 LFS indices;
see http://www.delta.dfg.ca.gov/data/mwt/). The critical concern index of 240 is the
approximate index value at the lower limit of the 1988-2000 outflow-abundance
relationship(Figure 1). For recovery,indices at or above the regression line of the
relationship are targeted.
2 We hypothesize that the location of X2 influences the distance adult fish migrate into the
Delta to spawn and thus their vulnerability to entrainment in south delta exports, as well
as that of their offspring. The highest and most consistent salvage of adult longfin smelt
occurs when X2 is upstream of river kilometer(rkm)70, and little salvage occurs when
X2 is below 60 rkm. Sacramento River flow(3-day running average)of 80,000 cfs or
greater pushes X2 well below rkm 70 and typically below rkm 60,moving water
conditions suitable for longfin smelt spawning downstream of the Delta and transporting
larvae downstream,away from the Delta as well. Longfin smelt spawn in winter when
water temperature is declining into 13-15°C range. Larvae are typically present in colder
temperatures and few early stage larvae continue to be present after water temperatures
surpass 16.5°C. Young juveniles avoid temperatures>21.5°C. These temperature
relations were derived from plotting catches by stage on water temperature
measurements,both of which were taken by the Bay Study field crews at western Delta
locations, 1980-1986.
Critical thermal maxima for longfin smelt is unknown.
3 The adult spawning stage is determined from longfin smelt(>_85 mm FL) captured by
one of the trawl surveys and/or one of the salvage facilities. A stage greater than or equal
to 4 indicates female longfin smelt are ripe and ready to spawn or have already spawned
(following Mager 1996 for delta smelt).
Mager RC. 1996. Gametogenesis,Reproduction and Artificial Propogation of Delta
Smelt,Hypomesus transpacificus. [Dissertation] Davis: University of California,Davis.
115 pages. Published.
4 Adults (December-February):the Fall Midwater Trawl in December,the Bay Study otter
and midwater trawl samples in December through February, and the Spring Kodiak
Trawl Survey in January and February all will provide data to be used to determine the
distribution of adult longfin smelt. December-February trigger occurs when adult longfin
smelt(>_85 mm FL)are detected east or south of Jersey point in the San Joaquin River or
south Delta channels however risk is substantially reduced when Sacramento River flows
at Freeport surpass 80,000 cfs in a 3-day running average and remains low until total
Delta outflow drops below 40,000 cfs for a 3-day running average; at which time the
longfin smelt distribution will be re-evaluated relative to the original triggering criteria of
an adult east or south of Jersey Point.
Emergency Action to Add Section 749.3, Title 14, CCR,
Re: Special Order Relating to Incidental Take of Longfin Smelt
(SDirinchus thaleichthys) During Candidacy Period
Larvae (January-April)(in 2008,March-April): March concern is triggered by the
presence of longfin smelt larvae in salvage or distribution east or south of Jersey Point in
the 20mm Survey. The level of response is determined by the distribution of larvae
within the system(see htt-p://www.delta.dfg.ca.gov/data/20mm/for longfin smelt)
Juveniles(March-July)—concern is triggered by longfin smelt juveniles distribution of
juvenile smelt where the centroid is located upstream(negative)or downstream(positive)
of the Sacramento-San Joaquin River confluence(see delta smelt Matrix,Figure 5.2).
The 20-mm Survey centroid is calculated by multiplying the observed smelt station
CPUE by a distance parameter in km from the confluence. The summed result(summed
over a survey)is divided by the survey CPUE which gives the survey centroid position
(see delta smelt Matrix,Figure 5.2 and http://www.delta.dfQ.ca-gov/data/20mm/ ,
selecting delta smelt).
5 Salvage trigger:the salvage trigger for December through March is determined by
calculating the ratio of adult salvage to the fall MWT index. This ratio will increase as
fish are salvaged during the winter months. If the ratio exceeds the median of what was
observed during December-March 1980-2002,then the trigger was met(see Figure 6 for
more explanation of the calculation)
During April,May and June, if longfin smelt collected at the salvage facilities is greater
than zero,then the working group will meet. This is because April,May and June are the
peak of smelt salvage and salvage densities cannot be predicted. Therefore,during these
two months,the smelt working group will meet proactively to protect these fish by
looking at relevant information such as salvage, delta temperatures, delta hydrology and
smelt distributions.
6 The tools for change are actions that the working group can recommend to help protect
longfin smelt. Exports may be reduced at one or both of the south delta export facilities
and a proposed duration of the reduction would be recommended by the working group.
Emergency Action to Add Section 749.3, Title 14, CCR,
Re: Special Order Relating to Incidental Take of Longfin Smelt
(Spirinchus thaleichthys) During Candidacy Period