E9-369. Availability of Draft Guidelines for Use of Pesticide-Treated Wood Products

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice of availability; request for comments.

SUMMARY:

NMFS is providing this notice in order to allow other agencies and the public an opportunity to review and provide comments on a draft guideline document regarding the use of pesticide-treated wood products in aquatic environments. The intent of the guidelines is to aid NMFS personnel conducting Endangered Species Act (ESA) and Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) Essential Fish Habitat (EFH) consultations in making consistent determinations regarding projects proposing to use pesticide-treated wood products in habitats utilized by NOAA trust resources. The guidelines attempt to convey a summary of information that should be considered when examining the effects determinations made by the action agency, and to direct personnel to documents containing more detailed information when needed. NMFS is requesting comment on the draft guideline document before it is finalized. All comments received before the due date will be considered before finalizing the guideline document. All comments received will become part of the public record and will be available for review upon request.

DATES:

Public comments must be received on or before 5 p.m., Pacific standard time March 16, 2009.

ADDRESSES:

Comments on this draft guideline may be submitted by mail to the National Marine Fisheries Service, 777 Sonoma Avenue, Suite 325, Santa Rosa, CA 95409, Attn: Water Quality Coordinator/Treated Wood Comments. Comments concerning the draft guideline may be sent via facsimile to [phone]. Comments may also be submitted electronically to [e-mail].

The reports are available at http://swr.nmfs.noaa.gov/​ or by calling the contact person listed below or by sending a request to [e-mail]. Please include appropriate contact information when requesting the documents.

FOR FURTHER INFORMATION CONTACT:

Joseph Dillon, Southwest Region Water Quality Coordinator at 707-575-6093.

SUPPLEMENTARY INFORMATION:

The purpose of the guidance document is to aid NMFS personnel conducting Endangered Species Act (ESA) and Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) Essential Fish Habitat (EFH) consultations to analyze the potential effects and mitigations for projects proposing to use pesticide-treated wood products in habitats utilized by NOAA trust resources. The guidelines summarize information that should be considered when examining the effects determinations made by an action agency and to direct personnel to documents containing more detailed information when needed. The draft guidelines focus on copper treated wood, primarily ammoniacal copper zinc arsenate (ACZA), as this is the most prominent material used on the west coast of the United States and in Alaska, and creosote treated products.

These products are being examined by NMFS to determine the risks generated by their usage to the living marine resources which NOAA is responsible for managing, referred to as NOAA's Trust Resources. These include anadromous salmonids managed under the ESA and EFH as designated by the Magnuson-Stevens Act. The use of pesticide-treated wood in or near aquatic environments commonly requires a permit issued by the U.S. Army Corps of Engineers. Under the ESA, Federal agencies must consult with NMFS to ensure that any action authorized, funded or carried out by the Federal agency does not jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of designated critical habitat. The issuance of this permit by the U.S. Army Corps of Engineers requires consultation under Section 7 of the ESA to determine whether its approval action would jeopardize federally-listed species or adversely modify designated critical habitat, and requires an EFH assessment to determine whether its approval action would adversely affect EFH. Since the use of pesticide-treated wood materials in situations that may expose aquatic ecosystems is widespread along the west coast of the United States and in Alaska, development of guidelines from the information presented in these reports should help to streamline the review of permitting processes as well as the permitting processes themselves. In some instances, these reports may be used to update existing policies regarding pesticide-treated wood.

The purpose of the ESA is to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of threatened and endangered species and to take steps that may be appropriate to achieve this conservation. Conservation is defined in the ESA to mean using, and the use, of all methods and procedures necessary to bring any endangered or threatened species to the point at which the protections provided by the ESA are no longer necessary. It is the policy of Congress, as declared in the ESA, that all Federal departments and agencies shall seek to conserve endangered and threatened species and shall utilize their authorities in furtherance of the purposes of the ESA.

The Magnuson-Stevens Act established procedures designed to identify, conserve, and enhance EFH for those species regulated under a Federal fisheries management plan. EFH regulates an activity with an eye toward its impact on habitat characteristics. EFH is defined as those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity. “Waters” include aquatic areas and their associated physical, chemical, and biological properties that are used by fish and may include aquatic areas historically used by fish where appropriate; “substrate” includes sediment, hard bottom, structures underlying the waters, and associated biological communities; “necessary” means the habitat required to support a sustainable fishery and the managed species' contribution to a healthy ecosystem; and “spawning, breeding, feeding, or growth to maturity” covers a species' full life cycle. EFH for salmonids includes their saltwater and fresh water ranges.

Effects of pesticide-treated wood that need to be examined during the ESA and EFH consultations include direct, indirect, and cumulative effects. An example of direct effects includes the acute and sublethal impacts of copper and polycyclic aromatic hydrocarbons to salmonids and the EFH of managed species. An example of an indirect effect includes the adverse impacts to the prey base upon which ESA-listed and EFH- managed species depend. An example of a cumulative effect includes the impacts of multiple structures and contaminants in an area with or without additional loading from urban sources, historic mining, smelters, ships' hulls or any other source. The synthesis of these effects to habitat and to individuals, coupled with local environmental conditions and specific species of concern, defines the risk of a project proposing the use of pesticide-treated wood.

Dated: January 6, 2009.

Angela Somma,

Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service.