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City of Stockton and County of San Joaquin Page 30 NPDES Permit CAS0083470 Response to Comments habitat for the Central Valley spring-run Chinook salmon and Central Valley steelhead). The United States Fish and Wildlife Service (USFWS)has likewise identified the Delta, its tributaries and local waterways as "Critical Habitat." 59 Fed. Reg. 65256 5 Mar. 1993 (designating critical habitat for Delta Smelt). Listed species are frequently in waterways during periods of storm water and non-storm water discharge from the City of Stockton and San Joaquin County storm sewer systems. For example, Sacramento splittail are foraging and beginning their migration to upstream spawning areas in December, January and February. Adult Delta smelt begin their spawning migration into fresher water during February to March. Steelhead and Fall-run Chinook salmon are migrating through the Delta from late Fall through Spring. Early life stages can be found from February to mid-August. Winter-run Chinook juveniles arrive in the Delta during the fall and winter to rear for a period ranging from weeks to several months. They begin their out migration as smolts during February and are frequently found in the South Delta in March and April. Spring-run Chinook salmon yearlings migrate through the Delta during the fall and winter months. Section 9 of the federal Endangered Species Act (ESA)prohibits the"take"of a listed species of fish or wildlife. 16 USC § 1538. The definition of"take"is to "harass, harm, pursue, hunt, shoot, would, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 USC § 1532(19). The USFWS defines the term"harm"to include any act which actually kills or injures fish or wildlife and emphasizes that such acts include significant habitat modification or degradation that significantly impairs essential behavioral patterns of fish or wildlife. 40 FR 44412; 46 FR 54748. This definition has been upheld by the U.S. Supreme Court as a reasonable interpretation of the term (See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2418, 1995). , Subsequently,NMFS has defined the term"harm"to include"significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing,migrating, feeding or sheltering." 64 FR 60727. Examples of activities that can cause death or injury to fish include "[d]ischarging pollutants, such as oil, toxic chemicals, radioactivity, carcinogens, mutagens, teratogens or organic nutrient-laden water including sewage water into a listed species habitat." 64 FR 60730. Toxicity, reductions in food supply or thermal or water quality barriers to migration constitute harm. Id. at 60727, 60728. Storm water discharges from the Discharger's storm sewer system have been identified as causing or contributing to Toxic Hot Spots, 303(d) listed impairments and violations of water quality standards. For example, storm water discharges cause or contribute to a dissolved oxygen barrier in the Calaveras River, a migration channel and rearing habitat for salmonids. The discharges authorized by this Permit will harm, harass and kill protected species. Consequently, the Regional Board and the Permittees are subject to liability under Section 9 of the ESA(16 USC § 1538).