[Federal Register Volume 64, Number 250 (Thursday, December 30, 1999)]
[Proposed Rules]
[Pages 73479-73506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33689]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 991207324-9324-01; I.D. No 081699C]
RIN 0648-AK94
Endangered and Threatened Species; Proposed Rule Governing Take
of Threatened Snake River, Central California Coast, South/Central
California Coast, Lower Columbia River, Central Valley California,
Middle Columbia River, and Upper Willamette River Evolutionarily
Significant Units (ESUs) of West Coast Steelhead
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments and notice of public
hearings.
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SUMMARY: Under section 4(d) of the Endangered Species Act (ESA), the
Secretary of Commerce (Secretary) is required to adopt such regulations
as he deems necessary and advisable for the conservation of species
listed as threatened. This proposed ESA 4(d) rule represents the
regulations NMFS believes necessary and advisable to conserve the seven
listed threatened steelhead ESUs. Note that this rules applies only to
the identified steelhead species. Effects resulting from implementation
of activities on other listed species (e.g., bull trout) must be
addressed through ESA section 7 and section 10 processes as
appropriate. The rule would apply the take prohibitions enumerated in
section 9(a)(1) of the ESA in most circumstances to seven threatened
steelhead ESUs. NMFS does not find it necessary or advisable to apply
the take prohibitions to specified categories of activities that
contribute to conserving listed salmonids or are governed by a program
that adequately limits impacts on listed salmonids. The proposed rule
describes 13 such limits on the application of the take prohibitions.
DATES: Comments on this rule must be received at the appropriate
address (see ADDRESSES), no later than 5:00 p.m., eastern standard
time, on February 22, 2000. Public hearings on this proposed action
have been scheduled. See SUPPLEMENTARY INFORMATION for dates and times
of public hearings.
ADDRESSES: Comments on this proposed rule or requests for information
should be sent to Branch Chief, Protected Resources Division, NMFS,
Northwest Region, 525 NE Oregon Street, Suite 500, Portland, OR 97232-
2737. Comments will not be accepted if submitted via e-mail or
Internet. See SUPPLEMENTARY INFORMATION for locations of public
hearings. Parties interested in receiving notification of the
availability of new or amended Fishery Management and Evaluation Plans
(FMEPs) or Hatchery and Genetic Management Plans (HGMPs) should contact
Chief, Hatchery/Inland Fisheries Branch, NMFS, Northwest Region, 525 NE
Oregon Street, Suite 510, Portland, OR 97232-2737, or Assistant
Regional Administrator, Sustainable Fisheries Division, NMFS, Southwest
Region, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
Parties interested in receiving notification of the availability of
draft Watershed Conservation Plan Guidelines or draft changes to Oregon
Department of Transportation's (ODOTs) 1999 Maintenance of Water
Quality and Habitat Guide should contact Branch Chief, Protected
Resources Division, NMFS, Northwest Region, 525 NE Oregon Street, Suite
500, Portland, OR 97232-2737.
FOR FURTHER INFORMATION CONTACT: Garth Griffin at 503-231-2005; Craig
Wingert at 562-980-4021.
SUPPLEMENTARY INFORMATION:
Background
On August 18, 1997, NMFS published a final rule listing the Snake
River Basin (SRB), Central California Coast (CCC), and South/Central
California Coast (SCCC) steelhead ESUs as threatened species under the
ESA (62 FR 43937). On March 19, 1998, NMFS published a final rule
listing the Lower Columbia River (LCR) and Central Valley, California
(CVC) steelhead ESUs as threatened species under the ESA (63 FR 13347).
On March 25, 1999, NMFS published a rule listing the Middle Columbia
River (MCR) and Upper Willamette River (UWR) steelhead ESUs as
threatened (64 FR 14517). Those final listing documents describe the
background of the steelhead listing actions and provide summaries of
NMFS' conclusions regarding the status of the listed steelhead ESUs.
Section 4(d) of the ESA provides that whenever a species is listed
as threatened, the Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation of the species.
Such protective regulations may include any or all of the prohibitions
that apply automatically to protect endangered species under ESA
section 9(a). Those section 9(a) prohibitions, in part, 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, or
collect; or to attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any wildlife species
listed as endangered, unless with written authorization for incidental
take. It is also illegal under ESA section 9 to possess, sell, deliver,
carry, transport, or ship any such wildlife that has been taken
illegally. Section 11 of the ESA provides for civil and criminal
penalties for violation of section 9 or of regulations issued under the
ESA.
Whether take prohibitions or other protective regulations are
necessary and advisable is in large part dependent upon the biological
status of the species and potential impacts of various activities on
the species. These species have survived for thousands of years through
cycles in ocean conditions and weather. NMFS concludes that threatened
steelhead are at risk of extinction primarily because their populations
have been reduced by human ``take.'' West Coast steelhead populations
have been depleted by take resulting from harvest, past and ongoing
destruction of freshwater and estuarine habitat, poor hatchery
practices,
[[Page 73480]]
hydropower development, and other causes. ``Factors for Decline: A
Supplement to the Notice of Determination for West Coast Steelhead''
(NMFS, 1996) concludes that all of the factors identified in section
4(a)(1) of the ESA have played some role in the decline of the species.
The report identifies destruction and modification of habitat,
overutilization for recreational purposes, and natural and human-made
factors as being the primary reasons for the decline. Therefore it is
necessary and advisable in most circumstances to apply the section 9
take prohibitions to these threatened ESUs, in order to provide for
their conservation.
Several other populations of West Coast salmonids that are impacted
by similar risks associated with human-caused take, including chinook,
coho, chum and sockeye salmon ESUs, have also recently been listed as
threatened, and section 4(d) regulations are to be proposed for them in
a separate Federal Register document. These listings have created a
great deal of interest among states, counties and others in adjusting
their programs that may affect the listed species to ensure they are
consistent with salmonid conservation (see e.g., Strahan v. Coxe, 127
F.3d 155 (1st Cir. 1997), cert. denied, 119 S.Ct 81 (1998)).
These entities have asked NMFS to provide clarity and guidance on what
activities may adversely affect salmonids and how to avoid or limit
those adverse effects, and to apply take prohibitions only where other
governmental programs and efforts are inadequate to conserve threatened
salmonids.
Although the primary purpose of state, local and other programs is
generally to further some activity other than conserving salmon, such
as maintaining roads, controlling development, ensuring clean water or
harvesting trees, some entities have adjusted one or more of those
programs to protect and conserve listed salmonids. NMFS believes that
with appropriate safeguards, many such activities can be specifically
tailored to minimize impacts on listed salmonids to an extent that
makes additional Federal protections unnecessary for conservation of
the listed ESU.
NMFS, therefore, proposes a mechanism whereby entities can be
assured that an activity they are conducting or permitting is
consistent with ESA requirements and avoids or minimizes the risk of
take of listed salmonids. When such a program provides sufficient
conservation for listed salmonids, NMFS does not find it necessary and
advisable to apply take prohibitions to activities governed by those
programs. In those circumstances, described in greater detail here,
additional Federal ESA regulation through the take prohibitions is not
necessary and advisable because it would not meaningfully enhance the
conservation of the listed ESUs. In fact, declining to apply take
prohibitions to such programs likely will result in greater
conservation gains for a listed ESU than would blanket application of
take prohibitions, through the program itself and by demonstrating to
similarly situated entities that practical and realistic salmonid
protection measures exist. An additional benefit of this approach is
that NMFS can focus its enforcement efforts on activities and programs
that have not yet adequately addressed the conservation needs of listed
ESUs.
Substantive Content of Proposed Regulation
NMFS has not previously proposed any protective regulations for
five of the steelhead ESUs subject to this proposed rule. When NMFS
first proposed the LCR and SRB ESUs for listing (61 FR 41541, August 9,
1996), it also proposed to apply the prohibitions of ESA section 9(a)
to those ESUs. NMFS received very little comment or response on that
issue. However, because NMFS now proposes to limit the application of
section 9(a) prohibitions for several additional programs, NMFS is
issuing a revised proposal for them in order to have the benefit of
public comment before enacting final protective regulations.
NMFS concludes at this time that the take prohibitions generally
applicable for endangered species are necessary and advisable for
conservation of these threatened steelhead ESUs, but believes that take
of the SRB, CCC, SCCC, LCR, CVC, MCR and UWR steelhead need not be
prohibited when it results from a specified subset of activities
described here. These are activities that are conducted in a way that
contributes to conserving the listed steelhead, or are governed by a
program that limits impacts on listed steelhead to an extent that makes
added protection through Federal regulation not necessary and advisable
for conservation of an ESU. Therefore, NMFS now proposes to apply ESA
section 9 prohibitions to the seven threatened steelhead ESUs, but not
to apply the take prohibitions to the 13 programs described here as
meeting that level of protection. Of course, the entity responsible for
any habitat-related programs might equally choose to seek an ESA
section 10 permit.
Working with state and local jurisdictions and other resource
managers, NMFS has identified several programs for which it is not
necessary and advisable to impose take prohibitions, because they
contribute to conserving the ESU or are governed by a program that
adequately limits impacts on listed salmonids. Under specified
conditions and in appropriate geographic areas, these include: (1)
activities conducted in accord with ESA incidental take authorization
through ESA sections 7 or 10; (2) ongoing scientific research
activities, for a period of 6 months; (3) emergency actions related to
injured, stranded, or dead salmonids; (4) fishery management
activities; (5) hatchery and genetic management program activities; (6)
activities in compliance with joint tribal/state plans developed within
United States v. Oregon. (7) scientific research activities permitted
or conducted by the states; (8) state, local, and private habitat
restoration activities; (9) properly screened water diversion devices;
(10) road maintenance activities in Oregon; (11) certain park
maintenance activities in the City of Portland, Oregon; (12) certain
development activities within urban areas; and (13) forest management
activities within the State of Washington. Following is a summary of
each of those programs, or potential limits on the take prohibitions.
Some limits apply within all seven ESUs, and some to a subset thereof.
NMFS emphasizes that these limits are not prescriptive regulations.
The fact of not being within a limit would not mean that a particular
action necessarily violates the ESA or this regulation. The limits
describe circumstances in which an entity or actor can be certain it is
not at risk of violating the take prohibition or of consequent
enforcement actions, because the take prohibition would not apply to
programs within those limits.
The limits on the take prohibitions do not relieve Federal agencies
of their duty under section 7 of the ESA to consult with NMFS if
actions they fund, authorize, or carry out may affect listed species.
Of course, to the extent that actions subject to section 7 consultation
are consistent with a circumstance for which NMFS has limited the take
prohibitions, the consultation will be greatly simplified because of
the analysis earlier done with respect to that circumstance.
NMFS wishes to continue to work collaboratively with all affected
governmental entities to recognize existing management programs that
conserve and meet the biological requirements of salmonids, and to
strengthen other programs toward conservation of listed salmonids. For
[[Page 73481]]
programs that meet those needs, NMFS can provide ESA coverage through
4(d) rules, section 10 research and enhancement permits or incidental
take permits, or through section 7 consultations with Federal agencies.
A 4(d) rule may be amended to add new limits on the take prohibitions,
or to amend or delete limits as circumstances warrant. For example,
California has been working on revisions to its Forest Practice Rules
(CFPRs) in order to improve the conservation of salmonids.
Concurrent with this proposed rule, NMFS proposes a limit on the
take prohibitions for actions in accord with any tribal resource
management plan that the Secretary has determined will not appreciably
reduce the likelihood of survival and recovery of threatened salmonid
ESUs. NMFS will issue a similar ESA 4(d) rule for seven other
threatened salmonid ESUs and a proposed limit on the take prohibitions
for actions in accord with any tribal resource management plan that the
Secretary has determined will not appreciably reduce the likelihood and
survival and recovery of threatened ESUs. Because this proposal and the
ESA 4(d) rule for seven other threatened salmonid ESUs are similar,
commenters wishing to comment on both need not submit separate comments
but may indicate that NMFS should consider their comments as applying
to both proposals.
Electronic Access
The Oregon Aquatic Restoration Guidelines is accessible via the
Internet at www.oregon-plan.org/hab_guide. The Washington Fish Passage
Design at Road Culverts is accessible via the Internet at
www.wa.gov:80/wdfw/hab/engineer/cm/culvertm.htm. To the extent possible
NMFS will post other documents referenced in these rules on its
Northwest region's website at www.nwr.noaa.gov.
Take Guidance
On July 1, 1994, (59 FR 34272) NMFS and the U.S. Fish and Wildlife
Service published a policy committing the Services to identify, to the
maximum extent practicable at the time a species is listed, those
activities that would or would not constitute a violation of section 9
of the ESA. The intent of this policy is to increase public awareness
of the effect of a listing on proposed and on-going activities within
the species' range.
As a matter of law, impacts on listed salmonids due to actions in
compliance with a permit issued by NMFS pursuant to section 10 of the
ESA are not violations of this rule. Section 10 permits may be issued
for research activities, enhancement of the species' survival, or to
authorize incidental take occurring in the course of an otherwise
lawful activity. Likewise federally-funded or approved activities for
which section 7 consultations have been completed for listed salmonids,
and which are conducted in accord with all reasonable and prudent
measures, terms, and conditions provided by NMFS in a biological
opinion and accompanying incidental take statement pursuant to section
7 of the ESA will not constitute violations of this rule. NMFS consults
on a broad range of activities conducted, funded or authorized by
Federal agencies, including fisheries harvest, hatchery operations,
silviculture, grazing, mining, road construction, dam construction and
operation, discharge of fill material, stream channelization or
diversion.
With respect to other activities:
1. Based on available information, NMFS believes the following
activities are very likely to injure or kill salmonids, and result in a
violation of this rule unless within a limit on the take prohibitions
provided in this rule. These are the categories of activity upon which
NMFS enforcement resources are likely to concentrate.
A. Except as provided in this rule, collecting, handling, or
harassing listed salmonids, including illegal harvest activities.
B. Diverting water through an unscreened or inadequately screened
diversion at times when juvenile salmonids are present.
C. Physical disturbance or blockage of the streambed where spawners
or redds are present concurrent with the disturbance. The disturbance
could be mechanical disruption from creating push-up dams, gravel
removal, mining, or other work within a stream channel, trampling or
smothering of redds by livestock in the streambed, driving vehicles or
equipment across or down the streambed, and similar physical
disruptions.
D. Discharges or dumping of toxic chemicals or other pollutants
(e.g., sewage, oil, gasoline) into waters or riparian areas supporting
the listed salmonids, particularly when done outside of a valid permit
for the discharge.
E. Blocking fish passage through fills, dams, or impassable
culverts.
F. Interstate and foreign commerce of listed salmonids and import/
export of listed salmonids without an ESA permit, unless the fish were
harvested pursuant to this rule.
2. Based upon available information, NMFS believes that the
category of activities which may injure or kill listed salmonids and
result in a violation of this rule (unless within an ``exception''
provided in the rule) includes, but is not limited to:
A. Water withdrawals that impact spawning or rearing habitat.
B. Diversion or discharge of flows that results in excessive, or
excessive fluctuation of, stream temperatures.
C. Aside from the habitat restoration activities to which this rule
does not apply take prohibitions, destruction or alteration of salmonid
habitat, such as through removal of large woody debris, ``sinker
logs,'' riparian canopy or other riparian functional elements;
dredging; discharge of fill material; or through alteration of surface
or ground water flow by draining, ditching, gating, diverting,
blocking, or altering stream or tidal channels (including side channels
wetted only during high flows and connected ponds).
D. Land-use activities that adversely affect salmonid habitat
(e.g., logging, grazing, farming, urban development, or road
construction in riparian areas) (see, e.g., 64 FR 60727, November 8,
1999, definition of ``harm'' contained in the ESA).
E. Physical disturbance or blockage of the streambed in places
where spawning gravels are present.
F. Violation of Federal or state Clean Water Act (CWA) discharge
permits through actions that actually impact water quality, and thus
may harm listed salmonids. Likelihood of harm is increased where the
receiving waters are not currently meeting water quality standards for
one or more components of the discharge.
G. Pesticide and herbicide applications that adversely affect the
biological requirements of the species.
H. Introduction of non-native species likely to prey on listed
salmonids or displace them from their habitat.
I. Altering habitat of listed salmonids in a way that promotes the
development of predator populations or makes listed salmonids more
susceptible to predation.
Enforcement activity may be initiated regarding these or any other
activities that harm protected salmonids. NMFS' clear preference,
however, is for persons or entities who believe their activity presents
significant risk given the above guidance to immediately modify that
activity to avoid take and actively pursue an incidental take statement
or permit through negotiations with NMFS, or shape those activities to
come within one of the limits on the take prohibitions described in
this proposed rule. Numerous local watershed councils, the Lower
Columbia Fish
[[Page 73482]]
Recovery Board, the Willamette Restoration Initiative, and many local
and regional governmental efforts are already actively working to solve
habitat problems that limit salmonid health and productivity. An entity
that is moving forward in coordination with NMFS to promptly implement
credible and reliable conservation measures will gain a good
understanding of any actions that may be creating an emergency
situation for listed fish or otherwise demand enforcement action. For
example, if water availability is a limiting factor and local water
users and the state are working toward solutions with NMFS through any
of a variety of mechanisms (such as conservation, supplementing
instream flows, development of an ESA section 10 habitat conservation
plan, etc.), the users will quickly gain a pretty clear picture of any
immediate adjustments that must be made in order not to create a high
risk of harming salmonid eggs, juveniles or adults.
3. There is also a category of activities which, while individually
are unlikely to injure or kill listed salmonids, may collectively cause
significant detrimental impact on salmonids through water quality
changes; climate change that affects ocean conditions; or cumulative
pollution due to storm runoff carrying lawn fertilizers, pesticides, or
road and driveway pollutants. Therefore, it is important that
individuals alter their daily behaviors to reduce these impacts as much
as possible, and for governmental entities to seek programmatic
incentives, public education, regulatory changes, or other approaches
to accomplish that reduction. These activities include, but are not
limited to:
A. Discharges to streams that are not listed under section 303(d)
of the CWA as water quality limited, when the discharge is in full
compliance with current National Pollutant Discharge Elimination System
permits.
B. Individual decisions about energy consumption for heating,
travel, and other purposes.
C. Individual maintenance of residences or gardens.
These lists are not exhaustive. They are intended to provide some
examples of the types of activities that might or might not be pursued
by NMFS as constituting a take of listed salmonids under the ESA and
its regulations. Questions regarding whether specific activities
constitute a violation of this rule, and general inquiries regarding
prohibitions and permits, should be directed to NMFS (see ADDRESSES).
Aids for Understanding the Limits on the Take Prohibitions
Issue 1: 50 CFR 222.307(c)(2)
Included here are several references to 50 CFR 222.307(c)(2) (see
64 FR 14051, March 23, 1999, final rule consolidating NMFS' ESA
regulations), which are criteria for issuance of an incidental take
permit. For convenience of those commenting on this proposed rule, the
criteria listed in 50 CFR 222.307(c) are:
(1) The taking will be incidental; (2) The applicant will, to the
maximum extent practicable, monitor, minimize and mitigate the impacts
of such taking; (3) The taking will not appreciably reduce the
likelihood of the survival and recovery of the species in the wild; (4)
The applicant has amended the conservation plan to include any measures
(not originally proposed by the applicant) that the Assistant
Administrator determines are necessary or appropriate; and (5) There
are adequate assurances that the conservation plan will be funded and
implemented, including any measures required by the Assistant
Administrator.
Issue 2: Population and Habitat Concepts
This proposed rule references scientific concepts that NMFS
proposes to use in determining whether particular programs need not
fall within the scope of the section 9 take prohibitions. One of these
concepts allows for identifying populations that may warrant individual
management within established ESUs on some issues. The second involves
identifying relevant biological parameters to evaluate the status of
these populations and identifying ``critical thresholds'' and ``viable
thresholds.'' NMFS is developing a scientific and policy paper entitled
``Viable Salmonid Populations'' (NMFS, December 1999) that addresses
the biological concepts surrounding viable salmonid populations in more
detail, and invites comment on that draft (see ADDRESSEES). Once fully
developed (including public and peer review), this paper will provide
additional guidance in evaluating programs for eligibility under this
4(d) rule.
A third concept describes the freshwater habitat biological
requirements of salmonids in terms of whether habitat is functioning
properly.
Identifying Populations within ESUs
NMFS proposes to define populations following Ricker's (1972)
definition of ``stock'': a population is a group of fish of the same
species spawning in a particular lake or stream (or portion thereof) at
a particular season which to a substantial degree do not interbreed
with fish from any other group spawning in a different place or in the
same place at a different season. This definition is widely accepted
and applied in the field of fishery management. An independent
population is an aggregation of one or more local breeding units that
are closely linked by exchange of individuals among themselves, but are
sufficiently isolated from other independent populations that exchanges
of individuals among populations do not appreciably affect the
population dynamics or extinction risk of the populations over a 100-
year time frame. Such populations will generally be smaller than the
whole ESU, and will generally inhabit geographic ranges on the scale of
whole river basins or major sub-basins that are relatively isolated
from outside migration. Using this definition, it is biologically
meaningful to evaluate and discuss the extinction risk of one
population independently of other populations within the same ESU.
Several types of information may be used to identify independent
salmonid populations within existing ESUs, including (1) geographic
indicators; (2) estimates of adult dispersal; (3) abundance
correlations; (4) habitat characteristics; (5) genetic markers; and (6)
quantitative traits. States and other groups involved in salmonid
management have defined groups of fish for management purposes based on
some or all of this information, and many of the definitions already
used by managers are similar to the population definition proposed
above. Further, while the types of information identified here may be
useful in defining independent populations within ESUs, other methods
may exist for identifying biologically meaningful population units
consistent with the adopted definitions. Therefore, NMFS will evaluate
proposed population boundaries on a case-by-case basis to determine if
such boundaries are biologically supportable and consistent with the
population definition in this rule.
NMFS believes it important to identify population units within
established ESUs for several reasons. Identifying and assessing impacts
on such units will enable greater consideration of the important
biological diversity contained within each ESU, a factor considered in
NMFS' ESU policy (Waples, 1991). Further, assessing impacts on a
population level is typically a more practical undertaking given the
scale and complexity of ESUs. Finally, assessing impacts on a
[[Page 73483]]
population level will help ensure consistent treatment of listed
salmonids across a diverse geographic and jurisdictional range.
Assessing Population Status
NMFS proposes to evaluate population status through four primary
biological parameters: (1) abundance; (2) productivity; (3) population
substructure; and (4) genetic diversity. A discussion of the relevance
of these parameters to salmonid population status may be found in a
variety of scientific documents (e.g., Nehlsen et al., 1991; Burgman et
al., 1993; Huntington et al., 1996; Caughley and Gunn, 1996; Myers et
al., 1998).
Population abundance is important to evaluate due to potential
impacts associated with genetic and demographic risks. Genetic risks
associated with low population size include inbreeding depression and
loss of genetic diversity. Demographic risks associated with low
population size include random effects associated with stochastic
environmental events. Population size may be assessed and estimated
from dam and weir counts, redd counts, spawner surveys, and other
methods. Viable abundance levels may be determined, based on historic
abundance levels or habitat capacity for the population.
Population productivity may be thought of as the population's
ability to increase or maintain its abundance. It is important to
assess productivity since negative trends in productivity over
sustained periods may lead to genetic and demographic impacts
associated with small population sizes. However, trends in other
parameters such as survival between life stages, age structure, and
fecundity may also be useful in assessing productivity. In general,
viable population trends should be positive unless the population is
already at or above viable abundance levels. In that case, neutral or
negative population trends may be acceptable so long as such declines
will not lead the population to decline below viable abundance levels
in the foreseeable future.
Population structure reflects the number, size and distribution of
remaining habitat patches and the condition of migration corridors that
provide linkages among these habitat types. Population structure
affects evolutionary processes and may impact the ability of
populations to respond to environmental changes or stochastic events.
Habitat deficiencies, such as loss of migration corridors between
habitat types, can lead to a high risk of extinction and may not become
readily apparent through evaluating population sizes or productivity.
Determining whether viable population structure exists may require
comparison of existing and historic habitat conditions.
Population diversity is important because variation among
populations is likely to buffer them against short term environmental
change and stochastic events. Population diversity may be assessed by
examining life history traits such as age, and run and spawn timing
distributions. Further, more direct analysis of genetic diversity
through DNA analysis may provide an indication of diversity. Viable
population diversity will likely be determined through comparisons to
historic information or comparisons to other populations existing in
relatively undisturbed conditions. Ultimately, population diversity
must be sufficient to buffer the population against normal
environmental variation.
Establishing Population Thresholds
In applying the concepts discussed here to harvest and artificial
propagation actions, NMFS relies on two functional thresholds of
population status: (1) Critical population threshold, and (2) viable
population threshold. The critical population threshold refers to a
minimal functional level below which a population's risk of extinction
increases exponentially in response to any additional genetic or
demographic risks.
The viable population threshold refers to a condition where the
population is self sustaining, and not at risk of becoming endangered
in the foreseeable future. This threshold reflects the desired
condition of individual populations and of their contribution to
recovery of the ESU as a whole. Proposed actions must not preclude
populations from attaining this condition.
Evaluating Habitat Conditions
This proposed rule restricts application of the take prohibitions
when land and water management activities are conducted in a way that
will help attain or protect properly functioning habitat. Properly
functioning habitat conditions create and sustain the physical and
biological features that are essential to conservation of the species,
whether important for spawning, breeding, rearing, feeding, migration,
sheltering, or other functions. Such features include water quantity;
water quality attributes such as temperature, pH, oxygen content, etc;
suitability of substrate for spawning; freedom from passage
impediments; and availability of pools and other shelter. These
features are not static; the concept of proper function recognizes that
natural patterns of habitat disturbance, such as through floods,
landslides and wildfires, will continue. Properly functioning habitat
conditions are conditions that sustain a watershed's natural habitat-
affecting processes (bedload transport, riparian community succession,
precipitation runoff patterns, channel migration, etc.) over the full
range of environmental variation, and that support salmonid
productivity at a viable population level. Specific criteria associated
with achieving these conditions are listed with each habitat-related
limit on take prohibitions.
Issue 3: Direct and Incidental Take
Section 4(d) of the ESA requires that such regulations be adopted
as are ``necessary and advisable to provide for the conservation of''
the listed species. In discussing the limits on the take prohibitions,
NMFS does not generally distinguish ``incidental'' from ``direct'' take
because that distinction is not required or helpful under section 4(d).
The biological impact of take on the ESU is the same, whether a
particular number of listed fish are lost as a result of incidental
impacts or directed impacts. Hence the descriptions below of harvest
and artificial propagation programs for which NMFS does not find it
necessary and advisable to impose take prohibitions do not, as a
general rule, make that distinction. Rather, those descriptions and
criteria focus on the impacts of all take associated with a particular
activity of the biological status of the listed ESU. (The distinction
is retained in the discussion of scientific research targeted on listed
fish, because the limit on take prohibitions applies in that situation
only to research by agency personnel or agency contractors.)
Issue 4: Applicability to Specific ESUs
In the regulatory language in this proposed rule, the limit on
applicability of the take prohibitions to a given ESU is accomplished
through citation to the CFR enumeration of threatened marine and
anadromous species, 50 CFR 223.102. For the convenience of readers of
this document, 50 CFR 223.102 refers to threatened salmonid ESUs
through the following designations:
(a)(1) Snake River spring/summer chinook
(a)(2) Snake River fall chinook
(a)(3) Central California Coast coho
(a)(4) Southern Oregon/Northern California Coast coho
(a)(5) Central California Coast steelhead
(a)(6) South-Central California Coast steelhead
[[Page 73484]]
(a)(7) Snake River Basin steelhead
(a)(8) Lower Columbia River steelhead
(a)(9) Central Valley, California steelhead
(a)(10) Oregon Coast coho
(a)(12) Hood Canal summer-run chum
(a)(13) Columbia River chum
(a)(14) Upper Willamette River steelhead
(a)(15) Middle Columbia River steelhead
(a)(16) Puget Sound chinook
(a)(17) Lower Columbia River chinook
(a)(18) Upper Willamette River chinook
(a)(19) Ozette Lake sockeye
Issue 5: Regular Evaluation of Limits on the Take Prohibitions
In determining that it is not necessary and advisable to impose
take prohibitions on certain programs or activities described here,
NMFS is mindful that new information may require a reevaluation of that
conclusion at any time. For any of the limits on the take prohibitions
described, NMFS will evaluate on a regular basis the effectiveness of
the program in protecting and achieving a level salmonid productivity
and/or of habitat function consistent with conservation of the listed
salmonids. If it is not, NMFS will identify ways in which the program
needs to be altered or strengthened. For habitat-related limits on the
take prohibitions, changes may be required if the program is not
achieving desired habitat functions, or where even with the habitat
characteristics and functions originally targeted, habitat is not
supporting population productivity levels needed to conserve the ESU.
If the responsible agency does not make changes to respond
adequately to the new information, NMFS will publish notification in
the Federal Register announcing its intention to impose take
prohibitions on activities associated with that program. Such an
announcement will provide for a comment period of not less than 30
days, after which NMFS will make a final determination whether to
extend all ESA section 9 take prohibitions to the activities.
Issue 6: Coordination with United States Fish and Wildlife Service
(FWS)
By its terms, this rule applies only to listed salmonids under
NMFS' jurisdiction. However, as it evaluates any program against the
criteria in this rule to determine whether the program warrants a
limitation on take prohibitions, NMFS will coordinate closely with FWS
regional staffs.
Permit/ESA Limit on the Take Prohibitions
This limit on the ESA section 9 take prohibitions recognizes that
those holding permits under section 10 of the ESA or coming within
other exceptions under the ESA are free of the take prohibition so long
as they are acting in accord with the permit or applicable law.
Examples of activities for which a section 10 permit may be issued are
research or land management activities associated with a habitat
conservation plan.
Continuity of Scientific Research
This proposed rule would not restrict ongoing scientific research
activities affecting listed CCC, SCCC, SRB, LCR, CV, UWR and MCR
steelhead ESUs for up to 6 months after its effective date, provided
that an application for a permit for scientific purposes or to enhance
the conservation or survival of the species is received by the
Assistant Administrator for Fisheries (AA), NOAA, within 30 days from
after the effective date of a final rule. The section 9 take
prohibitions would extend to these activities upon the AA's rejection
of the application as insufficient, upon issuance or denial of a
permit, or 6 months after the effective date of the final rule,
whichever occurs earliest. It is in the interests of salmonid
conservation not to disrupt ongoing research, some of which are of long
term duration. This limit on the take prohibitions assures there will
be no unnecessary disruption of those activities, yet provides NMFS
with tools to halt the activity through denial if it is judged to have
unacceptable impacts on a listed ESU. Therefore, NMFS does not find
imposition of additional Federal protections in the form of take
prohibitions necessary and advisable.
Take Prohibition Limit for Rescue and Salvage Actions
This limit on the take prohibitions relieves certain agency and
official personnel or their designees from the take prohibition when
they are acting to aid an injured or stranded salmonid, or salvage a
dead individual for scientific study. Each agency acting under this
``exception'' is to report the numbers of fish handled and their
status, on an annual basis. This limit on the take prohibitions will
result in conservation of the listed species by preserving life or
furthering our understanding of the species. By the very nature of the
circumstances that trigger these actions (the listed fish is injured or
stranded and in need of immediate help, or is already dead and may
benefit the species if available for scientific study), NMFS concludes
that imposition of Federal protections through a take prohibition is
not necessary and advisable.
Fishery Management Limit on the Take Prohibitions
NMFS believes that in many cases, recreational fisheries for non-
listed steelhead and resident game fish species will have acceptably
small impacts on listed steelhead and will allow for the conservation
of those listed salmonids, as long as state recreational fishery
management programs are specifically tailored to meet certain criteria.
This proposed rule provides a mechanism whereby NMFS may limit
application of the take prohibitions to non-listed (hatchery) steelhead
and resident species fisheries when a state develops an adequate
Fishery Management and Evaluation Plan (FMEP). If NMFS finds that the
FMEP contains specific management measures that adequately limits take
of listed steelhead and otherwise protects the ESU, NMFS may enter into
a Memorandum of Agreement (MOA) with the state for implementation of
the plan. Where an FMEP and MOA that meet the following criteria are in
place, NMFS concludes that problems associated with fishery impacts on
listed steelhead will be addressed and that additional Federal
protections through imposition of take prohibitions on harvest
activities is not necessary and advisable. Therefore this rule proposes
not to apply take prohibitions to actions in accord with FMEPs being
implemented through an MOA. This proposed limit on the take
prohibitions thus encourages states to move quickly to make needed
changes in fishery management so that listed ESUs benefit from those
improvements and protections as soon as possible.
Process for Developing FMEPs
Prior to determining that any state's new or amended FMEP is
sufficient to eliminate the need for added Federal protection, NMFS
must find that the plan is effective in addressing the criteria here.
If NMFS finds that an FMEP meets those criteria, it will then enter
into an MOA with the state which will set forth the terms of the FMEP's
implementation and the duties of the parties pursuant to the FMEP. A
state must confer annually with NMFS on its fishing regulation changes
to ensure consistency with an approved FMEP.
NMFS recognizes the importance of providing meaningful
opportunities for public review of FMEPs. Therefore, prior to approving
new or amended FMEPs, NMFS will make such plans
[[Page 73485]]
available for public review and comment for a period of not less than
30 days. Notice of the availability of these plans will be published in
the Federal Register.
Criteria for Evaluating FMEPs
NMFS will approve an FMEP only if it meets the following criteria,
which are designed to minimize and adequately limit take and promote
the conservation of all life stages of listed steelhead. The FMEP must:
(1) Provide a clear statement of the scope of the proposed action.
The statement must include a description of the proposed action, a
description of the area of impact, a statement of the management
objectives and performance indicators for the proposed action, and
anticipated effects of the proposed action on management objectives
(including recovery goals) for affected populations. This information
will provide objectives and indicators by which to assess management
strategies, design monitoring and evaluation programs, measure
management performance, and coordinate with other resource management
actions in the ESU.
(2) Identify populations within affected ESUs, taking into account
(A) spatial and temporal distribution; (B) genetic and phenotypic
diversity; and (C) other appropriate identifiable unique biological and
life history traits, as discussed earlier under Issue 2. Where
available data or technology are inadequate to determine the effects of
the proposed action on individual populations, plans may identify
management units consisting of two or more population units, when the
use of such management units is consistent with survival and recovery
of the species. In identifying management units, the plan shall
describe the reasons for using such units in lieu of population units
and describe how such units are defined such that they are consistent
with the principles discussed under Issue 2.
(3) Describe the functional status of each ESU or of any population
or management unit intended to be managed separately within the ESU,
and determine and apply two thresholds, based on natural production:
(A) one that describes the level of abundance and function at which the
population is considered viable; and (B) a critical threshold, where
because of very low population size and/or function, any additional
demographic and genetic risks increases the extinction risk
exponentially.
Thresholds may be described differently depending on the parameter
for which thresholds are being established. Abundance and productivity
thresholds may consist of a single value or a range of values whereas
spatial and temporal distribution and genetic diversity thresholds may
consist of multiple values, or describe a pattern or distribution of
values. For example, a hypothetical abundance threshold might be
defined either as 5,000 spawners per year or a range of 4,000-6,000
spawners per year, whereas a temporal distribution threshold might be
defined as a pattern of spawning timing occurring from mid-June through
August with random variation about that time, and with approximately 30
percent of the spawners entering in June, 50 percent in July and the
remaining 20 percent throughout August.
Proposed management actions must recognize the significant
differences in risk associated with these two thresholds and respond
accordingly in order to minimize the risks to the long-term
sustainability of the population(s). Harvest actions impacting
populations that are functioning at or above the viable threshold must
be designed to maintain the population or management unit at or above
that level. For populations shown with a high degree of confidence to
be above critical levels but not yet viable, harvest management must
not appreciably slow the population's achievement of viable function.
Harvest actions impacting populations that are functioning at or below
critical threshold must not appreciably increase the genetic and
demographic risks facing the population and must be designed to permit
the population's achievement of viable function, unless the plan
demonstrates that such an action will not appreciably reduce the
likelihood of survival and recovery of the ESU as a whole, despite any
increased risks to the individual population.
Thresholds represent a band of functions reflecting the reality
that populations fluctuate from year to year because of natural events
and variability. The biological analysis required to arrive at viable
and critical thresholds will be more or less intensive depending on
data availability and changes. After initial management strategies are
developed, annual abundance data will be an extremely important
indicator of what adjustments need be made. Then, as monitoring adds to
and refines the data regarding functioning of other parameters, these
must also be reviewed on a regular basis so that if significant changes
have occurred in run timing, phenotypic diversity or other
characteristics, the harvest strategy, (and if appropriate, other
strategies) will be adjusted to respond to those changes.
(4) Set escapement objectives or maximum exploitation rates for
each management unit or population based on its status, and a harvest
program that assures not exceeding those rates or objectives. While the
term ``exploitation'' may suggest a purposeful intent to use the
resource, it is used here as a term of art in fishery management
indicating that all fishery-related mortality across all fisheries must
be accounted for. In total, the combined exploitation across all
fisheries and management units must not appreciably reduce the
likelihood of recovery of the ESU. Management of fisheries where
artificially propagated fish predominate must not compromise the
management objectives for commingled naturally spawned populations
(those supported primarily by natural production) by reducing the
likelihood that those populations will maintain or attain viable
functional status, or by appreciably slowing attainment of viable
function.
All unlisted hatchery-produced steelhead that are intended to be
targeted for recreational harvest must be clearly, externally marked so
anglers may identify the origin of steelhead. This differential marking
will enable anglers to release naturally spawned fish, or fish intended
for recovery. Only externally marked fish of hatchery origin may be
retained in fisheries and all unmarked steelhead must be released
unharmed back to the water. Research conducted in the Northwest United
States and British Columbia indicates that adult steelhead can be
hooked, landed, and released using recreational fishing equipment with
an average mortality rate of less than 5 percent (Hooton, 1987). For
example, in the Snake River, about 50 percent of the adult steelhead
that return are caught in recreational fisheries. Since 50 percent of
the listed population is subjected to a 5- percent mortality, the
entire listed steelhead population is estimated to suffer about a 2.5-
percent mortality due to the recreational fishery. Acceptable mortality
rates may vary for different ESUs given differences in species status
or differences in the overall FMEP.
These measures will allow recreational anglers to fish for, and
harvest, non-listed, hatchery-produced steelhead, while providing
protection for listed fish. Any fishery where the number of listed fish
may exceed the number of unlisted fish in a given water must be
strictly controlled.
[[Page 73486]]
Steelhead fishing seasons should be open only in areas, and during
time periods, where and when non-listed, hatchery-produced fish are
expected to occur. Hatchery-produced steelhead smolts are released from
hatcheries and acclimation ponds or directly trucked to release points.
Most adults return to areas near the point at which they were released.
In many cases, hatchery programs have been adjusted to return non-
listed hatchery fish to river sections where they are accessible to
anglers and where they do not interfere with listed fish. Further
refinement of hatchery releases will occur through hatchery plans and
adaptive management based on evaluations of hatchery programs,
fisheries and regulation strategies.
Sanctuaries must be provided for listed steelhead, in which fishing
is not allowed and no hatchery-produced, non-listed steelhead are
present. Hatchery-produced steelhead smolts are typically released in
main stems of rivers, where fishing for returning non-listed hatchery
fish is generally permitted. Important tributaries and headwater areas
should be reserved as sanctuaries to provide adequate spawning and
rearing areas for listed species. Under some circumstances, it may be
an appropriate conservation strategy to utilize limited fisheries to
selectively remove stray hatchery fish from sanctuary areas to reduce
the proportion of hatchery fish that spawn naturally.
(5) Display a biologically based rationale demonstrating that the
harvest management strategy does not appreciably reduce the likelihood
of survival and recovery of the species in the wild. The effects must
be assessed over the entire period of time the proposed harvest
management strategy would affect the population, including effects
reasonably certain to occur after the proposed action ceases.
(6) Include effective monitoring and evaluation programs to assess
compliance, effectiveness, and parameter validation. At a minimum,
harvest monitoring programs must collect catch and effort data,
information on escapements, and information on biological
characteristics such as age, fecundity, size and sex data, and
migration timing. The complexity and frequency of the monitoring
program should be appropriate to the scale and likely effects of the
action. Angling effort and harvest rates may be monitored with check
stations, creel censuses, random surveys, and catch-card returns.
Spawning ground surveys can track trends in spawning success of listed
fish and proportion of hatchery-produced fish spawning naturally. Adult
fish counts at dams and weirs can provide estimated total numbers of
returns, the proportion of listed to non-listed fish, and abundance
trends. Surveys of rearing areas and downstream migrant traps can
provide estimates of production and juvenile abundance trends.
Estimates of the number of hatchery-produced steelhead and mortality of
listed fish should be monitored during the season and summarized at the
end of the season in an annual report available to NMFS and the public.
(7) Provide for evaluating monitoring data and making any needed
revisions of assumptions, management strategies, or objectives. The
FMEP must describe the conditions under which revision will be made and
the processes for accomplishing those revisions.
(8) Provide for effective enforcement and education. Coordination
among involved jurisdictions is an important element in ensuring
regulatory effectiveness and coverage.
(9) Include restrictions on resident species fisheries that
minimize and adequately limit any take of listed species, including
time, size, gear, and area restrictions; and elimination of put-and-
take fisheries in waters with listed anadromous salmonids. Recreational
fisheries for resident trout or other resident species may result in
take of juvenile and adult listed steelhead, but selective or catch-
and-release fisheries for resident species, with appropriate
restrictions on season, minimum length limits and fishing tackle may be
conducted with little or no measurable impact on listed species.
Season dates must be adjusted to avoid fishing on concentrations of
adult or juvenile listed steelhead. Steelhead smolts generally leave
rearing streams during spring freshets between March and June, with
peak outmigration in April and May. Delaying the opening of fishing
season until late May or June will provide protection for this life
stage. If monitoring of fisheries detects other times or areas where
listed juvenile steelhead are vulnerable, seasons may need to be closed
or shortened.
Minimum size limits for rainbow trout are necessary to protect
steelhead parr and smolts. Most listed steelhead smolts are less than 8
inches (3.1 cm) in length in northern areas (i.e., Idaho, Washington,
and Oregon) when they begin their migration. In some areas of
California, steelhead smolts often exceed 10 inches (3.9 cm) in length.
Fishing regulations should require rainbow trout retained by anglers to
be larger than the maximum size attained by wild steelhead smolts
rearing in those waters, to protect listed juvenile steelhead. In some
cases, minimum size limits of up to 14 inches (5.5 cm) have been
determined to be locally appropriate to avoid any chance of retention
of juvenile listed steelhead.
Regulations must not allow retention of listed steelhead. A
substantial amount of research indicates recreational fisheries for
resident fish species can be conducted so as to limit take of listed
steelhead. A review of over 70 studies of hooking mortality on trout
indicates that trout caught on artificial flies and lures generally
suffer less than 5 percent post-release mortality while trout caught on
bait average 30 to 50 percent (Mongillo, 1984)(steelhead post-release
mortality rates may be higher under warm water conditions). Many of
these studies used trout that are similar in size to juvenile steelhead
and results should be directly applicable. Therefore, use of bait in
angling should be prohibited in waters where take of listed steelhead
may occur. Barbless hooks should be required when necessary to minimize
potential impacts to listed steelhead. Locally appropriate regulations
that prohibit any retention of listed steelhead should likewise be
developed.
Put-and-take fisheries for hatchery-produced resident trout should
be eliminated in steelhead-producing streams since such fisheries can
concentrate anglers and increase the harvest or post-release mortality
of listed juvenile steelhead. In some cases, there may be cause for
concern that hatchery-produced fish may compete with or prey upon
listed juvenile steelhead. Release of hatchery-produced resident trout
in streams that support listed steelhead must be severely curtailed;
and
(10) Be consistent with plans and conditions set within any Federal
court proceeding with continuing jurisdiction over tribal harvest
allocations.
Artificial Propagation Limit on the Take Prohibitions
NMFS believes that in some cases it may not be necessary and
advisable to prohibit take with respect to artificial production
programs, including use of listed steelhead as hatchery broodstock,
under specific circumstances. This limit on the take prohibitions
proposes a mechanism whereby state or Federal hatchery managers may
obtain assurance that a hatchery and genetic management program is
adequate for protection and conservation of listed steelhead. The state
or Federal agency would develop a Hatchery and Genetic Management Plan
(HGMP) containing
[[Page 73487]]
specific management measures that will minimize and adequately limit
impacts on listed steelhead and promote the conservation of the listed
ESU, and then enter into an MOA with NMFS to ensure adequate
implementation of the HGMP. NMFS believes that with an adequate HGMP
and an MOA in place, additional Federal protection through imposition
of take prohibitions on artificial propagation activities would not be
necessary and advisable for conservation of the listed steelhead.
Process for Developing Hatchery and Genetic Management Plans
NMFS will evaluate the effectiveness of state or Federal HGMPs in
addressing the following criteria. If the HGMP does so adequately, NMFS
will then enter into an MOA with the state or complete an ESA section 7
consultation with a Federal entity, which will set forth the duties of
the parties pursuant to the plan.
This proposed rule provides a mechanism whereby NMFS may limit
application of take prohibitions that would otherwise apply to
broodstock collection and other hatchery operations in compliance with
an approved HGMP.
NMFS recognizes the importance of providing meaningful
opportunities for public review of draft HGMPs. Therefore, prior to
approving new or amended HGMPs, NMFS will make such plans available for
public review and comment for a period of not less than 30 days. Notice
of the availability of such draft plans will be published in the
Federal Register.
Criteria for Evaluating Hatchery and Genetic Management Plans
NMFS will evaluate salmonid HGMPs on the basis of criteria that are
designed to minimize and adequately limit take and promote the
conservation of the listed species. The criteria by which draft HGMPs
will be evaluated include the following:
(1) Goals and Objectives for the Propagation Program. Each hatchery
program must have clearly stated goals, performance objectives, and
performance indicators that indicate the purpose of the program, its
intended results, and measurements of its performance in meeting those
results. Goals should address whether the program is intended to meet
conservation objectives, contributing to the ultimate sustainability of
natural spawning populations, and/or intended to augment tribal,
recreational, or commercial fisheries. Objectives should enumerate the
results desired from the program against which its success or failure
can be monitored.
(2) Maintenance of Viable Populations. Listed salmonids may be
intentionally used for broodstock purposes only if (A) the donor
population is currently at or above viable thresholds and the
collection will not reduce the likelihood that the population remains
viable; (B) the donor population is not currently viable but the sole
objective of the current collection program is to enhance the
propagation or survival of the listed ESU; or (C) the donor population
is shown with a high degree of confidence to be above critical
threshold although not yet viable, and the collection will not
appreciably slow the attainment of viable population status.
(3) Prioritization of Broodstock Collection Programs. Broodstock
collection programs of listed salmonids shall be prioritized on the
following basis depending on health, abundance and trends in the donor
population: (A) for captive brood or supplementation of the local
indigenous population; (B) for supplementation and restoration of
similar, at-risk, natural populations within the same ESU, or for
reintroduction to underseeded habitat; and (C) production to sustain
tribal and recreational fisheries consistent with recovery and
maintenance of naturally spawned salmonid populations. The primary
purpose of broodstock collection programs must first be to reestablish
local indigenous salmonid populations and to supplement and restore
existing populations. After the species' conservation needs are met,
and when consistent with survival and recovery of the species,
broodstock collection programs may be authorized by NMFS for secondary
purposes, such as to sustain tribal, recreational and commercial
fisheries.
(4) Operational Protocols. An HGMP must include comprehensive
protocols pertaining to fish health; broodstock collection; broodstock
mating; incubation, rearing and release of juveniles; disposition of
hatchery adults; and catastrophic risk management.
(5) Genetic and Ecological Effects. An HGMP will be evaluated based
on best available information to assure the program avoids or minimizes
any deleterious genetic or ecological effects on natural populations,
including disease transfer, competition, predation, and genetic
introgression caused by straying of hatchery fish.
(6) Adequacy of Existing Fishery Management Programs and
Regulations. An HGMP shall describe interrelationships and
interdependencies with fisheries management. The combination of
artificial propagation programs and harvest management must be designed
to provide as many benefits and as few biological risks as possible for
the listed species. HGMPs for programs whose purpose is to sustain
fisheries must not compromise the ability of FMEPs or other management
plans to achieve management objectives for associated listed
populations.
(7) Adequacy of Hatchery Facilities. Adequate artificial
propagation facilities must exist to properly rear progeny of listed
broodstock to maintain population health, maintain population
diversity, and to avoid hatchery-influenced selection or domestication.
(8) Availability of Effective Monitoring Efforts. Adequate
monitoring and evaluation must exist to detect and evaluate the success
of the hatchery program and any risks to or impairment of recovery of
the listed ESU, including monitoring of stray rates.
(9) Consistency with Court Mandates. An HGMP must be consistent
with plans and conditions set within any Federal court proceeding with
continuing jurisdiction over tribal harvest allocations.
Take of Progeny Resulting from Hatchery/Naturally Spawned Crosses
NMFS' ``Interim Policy on Artificial Propagation of Pacific Salmon
Under the Endangered Species Act,'' (58 FR 17573, April 5, 1993)
provides guidance on the treatment of hatchery stocks in the event of a
listing. Under this policy, ``progeny of fish from listed species that
are propagated artificially are considered part of the listed species
and are protected under the ESA.'' According to the interim policy, the
progeny of such hatchery-naturally spawned crosses or naturally
spawned-naturally spawned crosses would also be listed.
NMFS believes it is desirable to incorporate enough naturally
spawned fish into the hatchery populations to ensure that their genetic
and life history characteristics do not diverge significantly from the
naturally spawned population. Prior to any intentional use of listed
fish for hatchery broodstock, an approved HGMP must be in place to
ensure that native, naturally spawned populations are conserved. With
such plans in place and where population status characteristics warrant
it, NMFS will proceed through rulemaking to delist hatchery progeny of
naturally spawned-naturally spawned or naturally spawned-hatchery
crosses. A proposed rule setting forth the scientific basis for such a
determination and providing the public with notification and an
[[Page 73488]]
opportunity to comment would be published in the Federal Register.
Limits on the Take Prohibitions for Joint Tribal/State Plans
Developed within United States v. Oregon.
Non-tribal salmonid management in the Columbia River basin is
profoundly influenced by the treaty rights of numerous Indian tribes in
the basin and must be responsive to the court proceedings interpreting
and/or defining those tribal interests. NMFS, therefore, proposes this
limit on the take prohibitions to accommodate any resource management
plan developed jointly by the States and the Tribes (joint plan) within
the continuing jurisdiction of United States v. Oregon, the on-going
Federal court proceedings to enforce and implement reserved treaty
fishing rights. Such a plan would be developed and reviewed under the
government-to-government processes of the general tribal limit
(including technical assistance from NMFS in evaluating impacts on
listed salmonids). Before the take prohibitions would be determined not
to apply to a joint plan, the Secretary must determine that
implementation and enforcement of the plan will not appreciably reduce
the likelihood of survival and recovery of the species. Before making
that determination for joint fishery management or hatchery and genetic
management plans the Secretary must solicit and consider public comment
on how any fishery management plan addresses the criteria in
Sec. 223.208(b)(4) of this proposed rule, or how any hatchery and
genetic management plan addresses the criteria in Sec. 223.208(b)(5) of
this proposed rule. The Secretary shall publish notice of any
determination regarding a joint plan, with a discussion of the
biological analysis underlying that determination, in the Federal
Register.
Limits on the Take Prohibitions for Scientific Research
In carrying out their responsibilities, state fishery management
agencies in Idaho, Washington, Oregon and California conduct or permit
a wide range of scientific research activities on various fisheries,
including monitoring and other studies on steelhead which occur in the
SR, CCC, SCCC, LCR, CVC, MCR and UWR steelhead ESUs. NMFS finds these
activities vital for improving our understanding of the status and
risks facing steelhead and other listed species of anadromous fish that
occur in overlapping habitat, and provide critical information for
assessing the effectiveness of current and future management practices.
In general, NMFS concludes such activities will help to conserve the
listed species by furthering our understanding of the species' life
history and biological requirements, and that state biologists and
cooperating agencies carefully consider the benefits and risks of
proposed research before approving or undertaking such projects. NMFS
concludes that it is not necessary or advisable to impose additional
protections on such research through imposition of Federal take
prohibitions. Therefore, in this notice, NMFS proposes not to apply
take prohibitions to scientific research activities under the following
circumstances.
Research activities that involve planned sacrifice or manipulation
of, or will necessarily result in injury to or death of, listed
steelhead come within this exception only if the state submits an
annual report listing all scientific research activities involving such
activities planned for the coming year, for NMFS' review and approval.
Such reports shall contain (1) an estimate of the total take
anticipated from such research; (2) a description of study designs,
including a justification for taking the species; (3) a description of
the techniques to be used; and (4) a point of contact. Research
involving planned sacrifice or manipulation of, or which will
necessarily result in injury to or death of listed salmonids must be
conducted by employees or contractors of the state fishery management
agency, or as part of a coordinated monitoring and research program
overseen by that agency. Any research using electrofishing gear in
waters known, or expected to contain, listed salmonids, is within this
exception only if it complies with ``Guidelines for Electrofishing
Waters Containing Salmonids Listed Under the Endangered Species Act''
(NMFS, 1998). Otherwise, electrofishing research requires a section 10
research permit from NMFS prior to commencing operations. NMFS welcomes
comment on these guidelines, which are available (see ADDRESSES),
during the comment period for this proposed rule.
The state must annually provide NMFS with the results of scientific
research activities that involve directed take of listed salmonids,
including a report of the amount of direct take resulting from the
studies and a summary of the results of such studies.
A state may conduct and may authorize non-state parties to conduct
research activities that may result in incidental take of listed
salmonids under the following conditions. The state shall submit to
NMFS annually, for its review and approval, a report listing all
scientific research activities permitted that may incidentally take
listed salmonids during the coming year. In that annual report, the
state must also report the amount of incidental take of listed
salmonids occurring in the previous year's scientific research
activities, and provide a summary of the results of such research.
Interested parties may request a copy of these annual reports from NMFS
(see ADDRESSES).
Habitat Restoration Limits on the Take Prohibitions
NMFS considers a ``habitat restoration activity'' to be an activity
whose primary purpose is to restore natural aquatic or riparian habitat
processes or conditions; it is an activity which would not be
undertaken but for its restoration purpose. NMFS does not consider
herbicide applications or artificial bank stabilization to be
restoration activity.
Certain habitat restoration activities are likely to contribute to
conserving listed salmonids without significant risks, and NMFS
concludes that it is not necessary and advisable to impose take
prohibitions on those activities when conducted in accordance with
appropriate standards and guidelines. Projects planned and carried out
based on at least a watershed-scale analysis and conservation plan,
and, where practicable, a sub-basin or basin-scale analysis and plan,
are likely to be the most beneficial. NMFS strongly encourages local
efforts to conduct watershed assessments to identify what problems are
impairing watershed function, and to plan for watershed restoration or
conservation in reliance on that assessment. Without the overview a
watershed-level approach provides, habitat efforts are likely to focus
on ``fixes'' that may prove short-lived, or even detrimental, because
the underlying processes that are causing a particular problem have not
been addressed.
This proposed rule, therefore, provides that ESA section 9(a) take
prohibitions will not apply to habitat restoration activities found to
be part of, and conducted pursuant to, a state-approved watershed
conservation plan with which NMFS concurs. The state in which the
activity occurs must determine in writing whether a watershed plan has
been formulated in accordance with NMFS-approved state watershed
conservation plan guidelines, and forward any positive finding for
NMFS' concurrence. NMFS will work with interested states in developing
guidelines that meet the criteria and standards set forth here. If NMFS
finds they meet those criteria and standards, NMFS will then certify
this
[[Page 73489]]
determination in writing to the state. Such a plan will contain
adequate safeguards such that no additional Federal protections through
imposition of take prohibitions on actions in accord with the plan, is
necessary and advisable for conservation of the listed salmonids.
While criteria and plans are being developed, this proposed rule
would not apply the take prohibitions to several habitat restoration
activities if carried out in accord with the conditions described here,
and with any required state or Federal reviews or permits. Until
watershed conservation plans formulated in accord with NMFS-approved
state watershed conservation plan guidelines are in place, but for no
longer than 2 years, ESA section 9 take prohibitions will not apply to
the following restoration activities when conducted in accord with the
listed conditions and guidance. More complex restoration activities,
such as habitat construction projects or channel alterations, require
project by project technical review at least until watershed planning
is complete.
Applicable state guidance includes the Oregon Road/Stream Crossing
Restoration Guide: Spring 1999, selected portions (cited here) of the
Oregon Aquatic Habitat Restoration and Enhancement Guide (1999); the
Washington Department of Fish and Wildlife, (WDFW) Habitat and Lands
Environmental Engineering Division's Fish Passage Design at Road
Culverts, March 3, 1999; Washington Administrative Code rules for
Hydraulic Project Approval; and Washington's Integrated Streambank
Protection Guidelines, June, 1998. Applicable state guidance for
California includes the Stream Corridor Restoration, Principles,
Processes and Practices by the Federal Interagency Stream Restoration
Working Group (October 1998) and the California Salmonid Stream Habitat
Restoration Manual, January, 1998. Under those conditions and where
consistent with any other state or Federal laws and regulations, NMFS
proposes not to apply take prohibitions to the following habitat
restoration activities:
1. Riparian zone planting or fencing. Conditions: No in-water work;
no sediment runoff to stream; native vegetation only; fence placement
consistent with standards in the Oregon Aquatic Habitat Restoration and
Enhancement Guide (1999).
2. Livestock water development off-channel. Conditions: No
modification of bed or banks; no in-water structures except minimum
necessary to provide source for off-channel watering; no sediment
runoff to stream; diversion adequately screened; diversion in accord
with state law and has no more than de minimus impacts on flows that
are critical to fish; diversion quantity shall never exceed 10 percent
of current flow at any moment, nor reduce any established instream
flows.
3. Large wood (LW) or boulder placement. Conditions: Does not apply
to LW placement associated with basal area credit in Oregon. No heavy
equipment allowed in stream; work limited to any state in-water work
season guidelines established for fish protection, or if there are
none, limited to summer low-flow season with no work from the start of
adult migration through the end of juvenile outmigration. Wood
placement projects should rely on the size of wood for stability and
may not use permanent anchoring including rebar or cabling (these would
require ESA section 7 consultation or an ESA section 10
permit)(biodegradable manila/sisal rope may be used for temporary
stabilization). Wood length should be at least two times the bankfull
stream width (1.5 times the bankfull width for wood with rootwad
attached) and meet diameter requirements and stream size and slope
requirements outlined in A Guide to Placing Large Wood in Streams,
Oregon Department of Forestry and Department of Fish and Wildlife (May,
1995). LW placement must be either associated with an intact, well-
vegetated riparian area which is not yet mature enough to provide LW;
or accompanied by a riparian revegetation project adjacent or upstream
that will provide LW when mature. Placement of boulders only where
human activity has created a bedrock stream situation not natural to
that stream system, where the stream segment would normally be expected
to have boulders, and where lack of boulder structure is a major
contributing factor to the decline of the stream fisheries in the
reach. Boulder placement projects within this exception must rely on
size of boulder for stability, not on any artificial cabling or other
devices. See applicable guidance in Oregon Aquatic Habitat Restoration
and Enhancement Guide (1999).
4. Correcting road/stream crossings, including culverts, to allow
or improve fish passage (See WDFW's Fish Passage Design at Road
Culverts, March 3, 1999; Oregon Road/Stream Crossing Restoration Guide:
Spring 1999; NMFS Southwest Region Culvert Policy (1999).
5. Repair, maintenance, upgrade or decommissioning of roads in
danger of failure. All work to be done in dry season; prevent any
sediment input into streams. In California, follow applicable guidance
in Weaver, W.E. and D.K. Hagens Handbook for Forest and Ranch Roads, A
guide for planning, designing, constructing, reconstructing,
maintaining, and closing wildland roads, June, 1994.
6. Salmonid carcass placement. Carcass placement should be
considered only where numbers of spawners are substantially below
historic levels. Follow applicable guidelines in Oregon Aquatic Habitat
Restoration and Enhancement Guide (1999), including assuring that the
proposed source of hatchery carcasses is from the same watershed or
river basin as the proposed placement location. To prevent introduction
of diseases from hatcheries, such as Bacterial Kidney Disease,
carcasses must be approved for placement by a state fisheries fish
pathologist.
These short term ``exceptions'' describe habitat restoration
activities that are likely to promote conservation of listed salmonids
with relatively small risk negative impacts. If conducted in accord
with the limitations described above, NMFS concludes it is not
necessary and advisable to provide additional Federal protections
through imposition of take prohibitions on these restoration actions.
Thus, these habitat restoration activities can proceed over the next 2
years without the need for ESA section 10 permit coverage. Before
undertaking other habitat restoration activities the project
coordinator should contact NMFS to determine whether the project can be
conducted in such a way as to avoid take. If not, NMFS will recommend
that an ESA section 10 incidental take permit be obtained before
proceeding. If the project involves action, permitting or funding by a
Federal agency, ESA coverage would occur through ESA section 7
consultation.
After a watershed conservation plan has been approved, only
activities conducted pursuant to the plan fall outside the scope of the
ESA section 9 take prohibitions. If no watershed conservation plan has
been approved by two years after publication of the final rule in the
Federal Register, then section 9 take prohibitions will apply to
individual habitat restoration activities just as to all other habitat-
affecting activities.
Criteria for Evaluating Watershed Conservation Plan Guidelines
NMFS will evaluate state watershed conservation plan guidelines
based upon the standards here, which include criteria derived from
those used for evaluating applications for incidental take permits,
found at Sec. 222.307(c) of
[[Page 73490]]
this chapter. Guidelines must result in plans that:
(1) Consider the status of the affected species and populations.
(2) Design and sequence restoration activities based upon
information obtained from an overall watershed assessment.
(3) Prioritize restoration activities based on information from
watershed assessment.
(4) Evaluate the potential severity of direct, indirect and
cumulative impacts on the species and habitat as a result of the
activities the plan would allow.
(5) Provide for effective monitoring. This criterion requires that
the effectiveness of activities designed to improve natural watershed
function will be evaluated through appropriate monitoring and that
monitoring data will be analyzed to help develop adaptive management
strategies. Successful monitoring requires identification of the
problem, identification of the appropriate solution to the problem, and
determination of the effectiveness of the solution over a period of
time in increasing productivity of the listed salmonids.
(6) Use best available technology. Since the language of part 222
of this chapter contemplates activities unrelated to habitat
restoration, it applies ``best available technology'' only to
minimizing and mitigating incidental effects. For this application,
NMFS makes the logical extension of also applying ``best available
technology'' to the restoration activities per se. Guidelines must
ensure that plans will represent the most recent developments in the
science and technology of habitat restoration, and use adaptive
management to incorporate new science and technology into plans as they
develop, and where appropriate, provide for project specific review by
disciplines such as hydrology, geomorphology, etc.
(7) Assure that any taking resulting from implementation will be
incidental.
(8) Require the state, local government, or other responsible
entity to monitor, minimize and mitigate the impacts of any such taking
to the maximum extent practicable.
(9) Will not result in long-term adverse impacts. Implementation
may cause some short-term adverse impacts, and plans must evaluate the
ability of affected ESUs to withstand those impacts. Guidelines and
plans must assure that habitat restoration activities will be
consistent with the restoration and persistence of natural habitat
forming processes.
(10) Assure that the safeguards required in watershed conservation
plans will be funded and implemented.
NMFS recognizes the importance of providing meaningful
opportunities for public review of watershed conservation plan
guidelines. Therefore, prior to certifying such guidelines, NMFS will
make the guidelines available for public review and comment for a
period of not less than 30 days. Notice of the availability of such
draft guidelines will be published in the Federal Register. Notice will
also be sent to parties expressing an interest in these guidelines.
Parties interested in receiving notification should contact NMFS (see
ADDRESSES).
Water Diversion Screening Limit on the Take Prohibitions
A widely recognized cause of mortality among anadromous fish is
operation of water diversions without adequate screening. Juveniles may
be sucked or attracted into diversion ditches where they later die from
a variety of causes, including stranding. Adult and juvenile migration
may be impaired by diversion structures, including push-up dams.
Juveniles are often injured and killed through entrainment in pumping
facilities or impingement on inadequate screens, where water pressure
and mechanical forces are often lethal.
State laws and Federal programs have long recognized these problems
in varying ways, and encouraged or required adequate screening of
diversion ditches, structures, and pumps to prevent much of the
anadromous fish loss attributable to this cause. Nonetheless, large
numbers of diversions are not adequately screened and remain a threat,
particularly to juvenile salmonids, and elimination of that source of
injury or death is vital to conservation of listed salmonids.
Therefore, this proposed rule should prompt all diverters to move
quickly to provide adequate screening or other protections for their
diversions, by not applying take prohibitions to any diversion screened
in accord with NMFS' Juvenile Fish Screening Criteria, Northwest
Region, Revised February 16, 1995, with Addendum of May 9, 1996, or in
California with NMFS' Southwest Region ``Fish Screening Criteria for
Anadromous Salmonids, January 1997'' or any subsequent revision
(available by contacting ADDRESSES). Compliance with these criteria
will address the problems associated with water diversions lacking
adequate screening. If a diversion is screened, operated and maintained
consistent with those NMFS criteria, NMFS concludes that adequate
safeguards will be in place such that no additional Federal protection
(with respect to method of diversion) through imposition of take
prohibitions is necessary and advisable for conservation of listed
salmonids. Written acknowledgment from NMFS engineering staff is needed
to establish that screens are in compliance with the above criteria.
The proposed take prohibitions would not apply to physical impacts
on listed fish due to entrainment or similar impacts of the act of
diverting so long as the diversion has been screened according to NMFS
criteria and is being properly maintained. The take prohibitions would
apply to take that may be caused by instream flow reductions associated
with operation of the water diversion facility, and impacts caused by
installation of the water diversion facility, such as dewatering/bypass
of the stream or in-water work. Such take remains subject to the
prohibitions of Sec. 223.208(a) of this proposed rule.
Routine Road Maintenance Limit on the Take Prohibitions
The Oregon Department of Transportation (ODOT) is responsible for
the extensive existing transportation infrastructure represented by the
Oregon's state highway system. ODOT maintenance and environmental staff
have worked with NMFS for more than a year toward performing routine
road maintenance activities within the constraints of the ESA and the
Clean Water Act, while carrying out the agency's fundamental mission to
provide a safe and effective transportation system. That work has
resulted in a program that greatly improves protections for listed
salmonids with respect to the range of routine maintenance activities,
minimizing their impacts on receiving streams. The Association of
Oregon Counties and the City of Portland participated in some of the
later discussions of needed measures and processes. ODOT's program
includes its Maintenance of Water Quality and Habitat Guide dated June,
1999 (Guide) and a number of supporting policies and practices,
including a strong training program, accountability mechanisms, close
regional working relationships with Oregon Department of Fish and
Wildlife (ODFW) biologists, two ODFW staff whose time is fully
dedicated to work with ODOT, a biologist dedicated full time to work
with NMFS on transportation issues, and several ongoing research
projects.
The Director of ODOT has committed that ODOT will implement the
Guide,
[[Page 73491]]
including training, documentation and accountability features that are
described in the introduction to the document (Letter from Grace
Crunican to William Stelle, dated June 30, 1999). The guide governs the
manner in which crews should proceed on a wide variety of routine
maintenance activities, including surface and shoulder work, ditch,
bridge, and culvert maintenance, snow and ice removal, emergency
maintenance, mowing, brush control and other vegetation management. The
program directs activity toward favorable weather conditions, increases
attention to erosion control, prescribes appropriate equipment use,
governs disposal of vegetation or sediment removed from roadsides or
ditches, and includes other improved protections for listed salmonids,
as well as improving habitat conditions generally. Routine road
maintenance conducted in compliance with the ODOT program will
adequately address the problems potentially associated with such
activity. In other words, the Guide provides adequate safeguards for
listed salmonids. Furthermore, extension of the take prohibitions to
these activities would not provide meaningful, increased protection for
listed salmonids. In sum, NMFS does not find it necessary and advisable
to apply take prohibitions to routine road maintenance work performed
consistent with the Guide. The Guide governs only routine maintenance
activities of ODOT staff. Other activities, including new construction,
major replacements, or activity for which a U.S. Army Corps of
Engineers (COE) permit is required, are not covered by the routine
maintenance program and, therefore, would be subject to the take
prohibitions.
NMFS realizes that in many circumstances the Guide includes
language that could compromise the protections otherwise offered,
through phrases such as ``where possible'', ``where feasible'' or
``where practicable.'' Although as a general rule such language creates
an unacceptable level of ambiguity or uncertainty for a program being
recognized within the ESA, a variety of circumstances constrain and
limit that uncertainty in the case of ODOT's routine maintenance
program. Foremost is that ODOT intends these discretionary phrases to
be exercised only where physical, safety, weather, equipment or other
hard constraint make it impossible to follow a Best Management Practice
(BMP) to the letter. ODOT has explained this in the Guide, making clear
that the discretionary language is not included to create flexibility
for the convenience of the crew or for ease of operation. ODOT is
striving in its training program to have all crews understand that
point, and to provide examples of appropriate and inappropriate
application of those discretionary phrases. As an example of
appropriate use, the Guide states that ODOT will ``where feasible,
schedule sweeping during damp weather, to minimize dust production.''
ODOT crews strive to follow that. However, debris on the road at other
times may require that ODOT sweep a road regardless of road moisture,
to ensure a safe surface. ODOT would then proceed with sweeping as
necessary, using other applicable minimization and avoidance practices.
Further, ODOT crews undergo extensive and regular training, and are
increasingly focused on environmental considerations and compliance as
a core agency value and consideration. ODOT is testing new ideas for
enhancing feedback from crews to managers and policy staff. One
proposal establishes environmental leaders on each crew who then meet
regularly to address successes and failures. Information from that
group would then be fed into a monthly regional meeting for
identification of needed adjustments, and then on to quarterly
management reviews. While this system is not in place, it demonstrates
ODOT's determination to find and use practical feedback mechanisms to
enhance the routine maintenance program as well as other ODOT programs.
In sensitive resource areas, the possibilities of exercising
discretionary flexibility are further constrained by a new tool that
has been implemented in southern Oregon, will shortly be in place in
the north coast region, and completed throughout Oregon in 2002. The
agency is working to prepare detailed maps identifying any known
sensitive resource sites that occur within ODOT rights of way. ODOT is
mapping dominant land cover, functional overstory values, late
successional stage, riparian management areas, presence of contiguous
riparian areas, salmonid presence, spawning, rearing, offchannel areas,
tributaries, wetlands, and other resource issues. This mapping does not
delineate boundaries or provide presence or absence of species, but
rather inventories known resources within ODOT'S rights of way.
A resource map and a restricted activity map are being produced for
each road, by mile point and global position system coordinate. The
restricted activity maps are coordinated with ODOT maintenance staff
and will allow ODOT staff the knowledge to adjust their activities
based on resource information. 'No restriction' areas indicate that no
known resource of concern has been identified in the area, and routine
maintenance can occur using the Guide. A 'Caution' value indicates the
known presence of one or more resources in the general work area, and
maintenance crews should increase their awareness of their activities,
perhaps contacting region environmental staff. The district Integrated
Pest/Vegetation Management Plan and the Guide will direct activities.
The 'Restricted value' indicates that a resource of concern is known to
be present within the right of way and consultation with technical
staff needs to occur prior to any work or ground disturbing activity.
With a full-time staff person at NMFS dedicated to coordination and
communication with ODOT staff on a regular basis and participation in
monthly and quarterly review meetings, NMFS is assured of regular
feedback on how the program is operating. That feedback will provide a
picture of the frequency and nature of any deviations from the
practices specified in the Guide. If at some time in the future that
dedicated staff position is no longer available, then NMFS and ODOT
will have to find another means of assuring that feedback or amend the
program appropriately to keep it within the exception.
Finally, through annual reporting of external complaints and their
outcomes, ODOT will identify needed ``modifications of, or improvements
to'' any of the minimization/avoidance measures and has committed to
making changes to the measures as necessary. Likewise, ODOT will
incorporate changes reflecting new scientific information and new
techniques and materials.
ODOT will notify NMFS of any changes to the ODOT guidance, and
before NMFS determines that the take prohibitions should not be
extended to these activities, NMFS will publish notification in the
Federal Register providing a comment period of not less than 30 days
for public review and comment on the proposed changes. If at any time
NMFS determines that compliance problems or new information cause the
ODOT program to no longer provide sufficient protection for threatened
salmonids, NMFS shall notify ODOT. If ODOT does not effectively correct
the matter within a mutually determined time period, NMFS shall notify
ODOT that its routine road maintenance program is subject to the take
prohibitions.
[[Page 73492]]
While ODOT implements an integrated vegetation management program
which assures that herbicide or pesticide spraying will not occur in
areas of sensitive natural resources, including streams, NMFS is unable
to conclude at this time that the measures in ODOTs Guide governing
herbicide or pesticide spraying (MMS #131) are sufficiently protective
of listed salmonids to warrant not applying the take prohibitions of
this rule to that activity. This is in part because of the large number
of herbicide and pesticide formulations ODOT may employ, and the
legitimate concerns about effects of many of these chemicals on aquatic
species, and specifically on anadromous fish at various life stages.
The fact that NMFS does propose to apply take prohibitions to spraying
at this time does not indicate that NMFS has determined that any
particular ODOT pesticide spraying activities constitute harm to
salmonids; rather, that there is not sufficient evidence at this time
to be sure the risk of harm is low. NMFS intends to continue working
with ODOT on the issues surrounding herbicide and pesticide use. ODOT
is currently conducting research on whether chemicals it applies reach
streams under worst-case scenarios.
For similar reasons, the take prohibitions would apply to dust
abatement measures in the Guide. ODOT routine maintenance seldom
engages in dust abatement, and when it does uses only water and hence
is not risk of harming salmonids. There is insufficient precision in
the Guide as to chemical makeup of palliatives, specific areas of use,
rates of application, and possible contaminants for NMFS to be sure the
risk of harm would be acceptably low should any county or city that
does significant dust abatement seek to come within this exception.
Therefore, a county or city would have to provide those additional
details and commit to appropriate limits in an MOA before dust
abatement could be considered as within the limit on take prohibitions.
NMFS believes that other than for herbicide and pesticide spraying and
dust control, activity in compliance with the ODOT guidance and program
would not further degrade or otherwise restrict attainment of properly
functioning conditions. With respect to routine road maintenance
activities in Oregon, the program limits impacts on listed salmonids
and their habitat to an extent that makes additional Federal
protections unnecessary for the conservation of listed salmonids.
Therefore, in this proposed rule NMFS does not apply take prohibitions
on routine road maintenance activities (other than herbicide and
pesticide spraying, or dust abatement) so long as the activity is
covered by and conducted in accord with ODOT's Maintenance Management
System Water Quality and Habitat Guide (June, 1999). ODOT will continue
to obtain permits from the COE and/or Oregon Division of State Lands
for any in-stream work normally requiring those permits, and COE
section 7 consultation requirements on permit issuance is not affected
by this limit on the take prohibitions. ODOT has committed to review
the Guide and revise as necessary at least every 5 years. ODOT is
actively reviewing potential impacts or new technologies related to
many issues. For instance, results from an earlier technical team
evaluation of impacts of de-icing mechanisms on aquatic resources is
included as an appendix to the Guide. That group has been reconvened
(with NMFS as a member) and is revisiting adherence to the
specifications, as well as evaluating extensive research on CMA
(calcium-magnesium acetate). Initial research indicates that CMA is not
getting to the water column, but the team will be following up. ODOT
has also been doing roadside snow sampling to determine whether any
typical road-side pollutant is present on road sand, and thus far has
not identified any measurable concentrations.
ODOT has several other interagency teams working toward improving
practices or further defining specific issues related to ditches,
culverts, or emergency circumstances. It is also continuing research on
how to best recycle or otherwise appropriately dispose of maintenance
decant, sediment, or sweepings. Any of the above may result in improved
practices and, where necessary, in revision of the Guide.
At any time ODOT revises part of the 1999 Guide, ODOT will need to
provide the desired revision to NMFS for review and approval. NMFS will
make draft changes available for public review and comment for a period
of not less than 30 days. Notice of the availability of such draft
changes will be published in the Federal Register. Notice will also be
sent to parties expressing an interest in the Guide. Parties interested
in receiving notification should contact NMFS (see ADDRESSES).
Some Oregon city and county governments have indicated interest in
using the ODOT guidance to be sure that their routine road maintenance
activities are protective of salmonids. The fact that ODOT has an
extensive and ongoing training program for all maintenance employees
and has committed to report on an annual basis details of program
implementation is fundamental to NMFS' belief that the program is
adequate. Hence, any Oregon city or county desiring that its routine
road maintenance activities come under this ``exception'' must not only
commit in writing to apply the measures in the Guide, but also must
first enter into a MOA with NMFS detailing how it will assure adequate
training, tracking, and reporting, including how it will control and
narrow the circumstances in which a practice will not be followed
because it is not ``feasible,'' ``practical,'' or ``possible.''
Portland Parks Integrated Pest Management Limit on the Take
Prohibitions
The City of Portland, Oregon, Parks and Recreation Department
(PP&R) operates a diverse system of city parks representing a full
spectrum from intensively managed recreation, sport, golf, or garden
sites to largely natural, unmanaged parks, including the several
thousand acre, wooded, Forest Park. PP&R has been operating and
refining an integrated pest management program for 10 years, with a
goal of reducing the extent of its use of herbicides and pesticides in
park maintenance. The program's ``decision tree'' place first priority
on prevention of pests (weeds, insects, disease) through policy,
planning, and avoidance measures (design and plant selection). Second
priority is on cultural and mechanical practices, trapping, and
biological controls. Use of biological products, and finally, of
chemical products, is to be considered last. PP&R's overall program
affects only a small proportion of the land base and waterways within
Portland, and serves to minimize any impacts on listed salmonids from
chemical applications associated with that specific, limited land base.
NMFS believes it would contribute to conservation of listed salmonids
if jurisdictions would broadly adopt a similar approach to eliminating
and limiting chemical use in their parks and in other governmental
functions.
As a result of this program, the City has phased out regularly
scheduled treatments such as turf spraying to control broadleaf weeds.
This has reduced total use of chemical to control broadleaf weeds to
less than 15 percent of its former level.
Decisions to use pesticides are not made lightly and require
attention to public notification, mixing, cleaning and record keeping.
Use of pesticides is no longer a ``least hassle'' kind of option. City
personnel report that
[[Page 73493]]
pesticide use is avoided by maintenance crews unless there are no other
workable options.
Crews cease application when winds will cause spray drift beyond
the target site. Spot spraying or brushing of herbicides is frequently
chosen.
The PP&R has recently developed special policies to provide extra
protections near waterways and wetlands, including a 25- foot (7.5m)
buffer zone in which pesticide use is limited to Glyphosphate products,
Garlon 3A, Surfactant R-11, Napropamide, Cutrine Plus, and Aquashade.
Within this buffer applications are spot applied with a hand wand from
a backpack sprayer, which utilizes low pressure spray to minimize
drift. Under certain circumstances broadcast spraying, which also uses
the low pressure hand-wand spraying will be conducted. Application
rates of chemicals used range from 9 percent to 100 percent of label
allowances, depending on the identified task.
After careful analysis of PP&R's integrated program for pest
management, NMFS concludes that it addresses potential impacts and
provides adequate protection for listed salmonids with respect to the
limited use the program may make of the above listed chemicals.
Therefore, NMFS does not find it necessary and advisable to apply
additional Federal protections in the form of take prohibitions to PP&R
activities conducted under City of Portland, Oregon's Parks and
Recreation Department's (PP&R) Pest Management Program (March 1997),
including its Waterways Pest Management Policy dated April 4, 1999. In
addition, NMFS concludes that take prohibitions would not meaningfully
increase the level of protection provided for listed salmonids. NMFS,
therefore, does not propose to apply the take prohibitions of this
proposed rule to activities within the PP&R program.
Confining the take prohibition limit to a specified list of
chemicals does not indicate that NMFS has determined that other
chemicals PP&R may employ necessarily will cause harm to salmonids in
the manner used. NMFS intends to continue working with PP&R on the
issues surrounding use of any other herbicide or pesticide.
PP&R's program includes a variety of monitoring commitments and a
yearly assessment with NMFS of results, progress, and any problems. If
at any time monitoring information, new scientific studies, or new
techniques cause PP&R to amend its program or to cause PP&R and NMFS to
wish to change the list of chemicals falling outside the scope of the
take prohibitions, NMFS will publish notification in the Federal
Register announcing the availability of the proposed changes for public
review and comment. Such a notification will provide for a comment
period of not less than 30 days, after which NMFS will make a final
determination whether the changes will conserve listed salmonids. PP&R
has been seeking to decrease the extent of its intensively managed
riparian areas. NMFS commends that effort, while recognizing that PP&R
is constrained by recreational, aesthetic, safety and other
responsibilities. This limit on the take prohibitions does not include
PP&R's initial planning determinations about the extent of riparian
vegetative buffer provided; that question is separable from the
integrated pest management approach taken to achieve the conditions
planned. This limit focuses on the methods PP&R employs to assure that
once it has identified a particular plant or animal as a pest, its
control methods are as protective of natural processes, water quality,
and listed species as possible.
Limit on Take Prohibitions for New Urban Density Development
As a general matter, significant new urban scale developments have
the potential to degrade salmonid habitat and to injure or kill
salmonids through a variety of impacts. NMFS believes that with
appropriate safeguards, new development can be specifically tailored to
minimize impacts on listed salmonids to an extent that makes additional
Federal protections unnecessary for conservation of the listed ESU.
Through this proposed rule, NMFS proposes a mechanism whereby
jurisdictions can be assured that development authorized within those
areas is consistent with ESA requirements and avoids or minimizes the
risk of take of listed salmonids. Both potential developers and the
jurisdictions controlling new development would benefit by assurance
that their approvals and development actions conserve listed salmonids.
For example, urban density development in the Portland, Oregon
metropolitan area may not occur outside of an adopted urban growth
boundary (UGB). Metro, the regional governing body, is in the process
of bringing some large areas currently designated as urban reserve
areas into the UGB. Before development may commence within such newly
included areas, the jurisdiction within which the area lies must
prepare and adopt comprehensive plan amendments for urban reserve areas
consistent with all provisions of the Metro Urban Growth management
Functional Plan, outlining what development will be allowed and the
conditions to be placed upon development.
Similarly, cities both within and outside the Metro region and in
other states affected by this rule may be approving new urban
development on tracts of a size that allows integrated planning for
placement of buildings, transportation, storm water management, and
other functions. Several areas under consideration for Metro boundary
expansions, and several undeveloped tracts within currently urbanized
areas, include streams that support listed salmonids.
This proposed rule further proposes that NMFS will not apply take
prohibitions to new developments governed by and conducted in accord
with adequate city or county ordinances that NMFS has determined are
adequate to help conserve anadromous salmonids. Similarly, within the
jurisdiction of the Metro regional government in Oregon, if NMFS finds
that Metro's Urban Growth Management Functional Plan (Functional Plan)
is adequate, take prohibitions will not be applied to development
governed by ordinances that Metro has found consistent with that
Functional Plan. NMFS must agree in writing that the city or county
ordinances or Metro's Functional Plan are sufficient to assure that
plans and development complying with them will result in development
patterns and actions that conserve listed salmonids.
In determining whether Metro's Functional Plan or local ordinances
are adequate NMFS will focus on 12 issues, discussed here. Many of
these principles are derived from Spence, An Ecosystem Approach to
Salmonid Conservation (NMFS, 1996) and citations therein. NMFS
recognizes that some of these principles require integrated planning
for placement of buildings, transportation or storm water management
and that those 12 principles will have to be applied in the context
within which the development is to occur, which will differ among major
new developments and for small, single lot developments or
redevelopments. Ordinances or Metro's Functional Plan must assure that
urban reserve plans or developments will:
(1) Be sited in appropriate areas, avoiding unstable slopes,
wetlands, areas of high habitat value, and similarly constrained sites.
(2) Avoid stormwater discharge impacts to water quality and
quantity, and preserve, or move stream flow patterns (hydrograph)
closer to, the
[[Page 73494]]
historic peak flow and other hydrograph characteristics of the
watershed. Through a combination of reduction of impervious surfaces,
runoff detention, and other techniques development can achieve that
purpose within its portion of the watershed. Other development design
characteristics, stormwater management practices and buffer
requirements will prevent sediment and other pollutants from reaching
any watercourse.
(3) Require adequate riparian buffers along all perennial and
intermittent streams. Because of the intensity of disturbance in
surrounding uplands, riparian buffers are at least as critical in urban
areas as in rural areas. Without adequately vegetated riparian set-
backs, properly functioning conditions including temperature control,
bank stability, stream complexity and pollutant filtering cannot be
achieved.
Retain all existing native vegetation because of its importance in
maintaining bank stability, stream temperature, and other
characteristics important to water quality and fish habitat. Prevent
destruction of existing native vegetation prior to land use
conversions. Where the area contains non-native vegetation, maintained
lawn, or is cropped, add or substitute native vegetation within the
riparian set-back to achieve a mix of conifer, deciduous trees,
understory and ground covers must be planted. To the extent allowed by
ownership patterns, the development set-back should be equivalent to
greater than one site potential tree height (approximately 200 ft (60
m) or at least to the break in slope for steep slopes) from the outer
edge of the channel migration zone on either side of all perennial and
intermittent streams, in order to protect off-channel high flow rearing
habitat and allow full stream function. Within that set-back the first
50 ft (15 m) should be protected from any mechanical entry or
disturbance, structures, or utility installations, and should be
dominated by maturing or mature conifers, together with some hardwoods
and a vigorous, dense understory of native plants. This inner buffer
should also be protected from high-impact recreational use and any
trails should be of permeable, natural materials. The inner buffer
provides multiple values, including root systems for bank stability.
The outer 100-plus ft (30.5 m) of set-back should be entirely in native
vegetation (not in maintained lawn) with a mix of conifer, deciduous
trees, understory and groundcovers. Disturbances should be minimized.
(4) Avoid stream crossings by roads wherever possible, and where
one must be provided, minimize impacts through choice of mode, sizing,
placement. One method of minimizing stream crossings and disturbances
is to optimize transit opportunities to and within newly developing
urban areas. Consider whether potential stream crossings can be avoided
by access redesign. Where crossings are necessary, minimize their
impacts by preferring bridges over culverts; sizing bridges to a
minimum width; designing bridges and culverts to pass at least the 100-
year flood and associated debris, and meet ODFW or WDFW criteria;
assuring regular monitoring and maintenance over the long term; and
prohibiting closing over of any intermittent or perennial stream. The
Washington Department of Fish and Wildlife, (WDFW) Habitat and Lands
Environmental Engineering Division's ``Fish Passage Design at Road
Culverts'', March 3, 1999, or ``Oregon Road/Stream Crossing Restoration
Guide: Spring 1999'' provide excellent frameworks for action.
(5) Protect historic stream meander patterns, flood plains and
channel migration zones; do not allow hardening of stream banks. All
development should be designed to allow streams to meander in historic
patterns of channel migration. Adequate riparian buffers linked to the
channel migration zone should avoid need for bank erosion control in
all but the most unusual situations. If required by unusual
circumstances, bank erosion should be controlled through vegetation or
carefully bioengineered solutions. Rip-rap blankets or similar
hardening techniques are not allowed, unless bioengineered solutions
are impossible because of particular site constraints. Habitat elements
such as wood, rock, or other naturally occurring material must not be
removed from streams. WDFW's ``Integrated Streambank Protection
Guidelines, June, 1998'' provide sound guidance, particularly regarding
mitigation for gravel recruitment and channel complexity lost through
streambank hardening.
(6) Protect wetlands and the vegetation surrounding them to
maintain wetland functions. Design around wetlands for their positive
habitat, water quality, flood control, and groundwater connection
values, providing adequate buffers. Retain all existing natural
wetlands.
(7) Preserve the hydrologic capacity of all intermittent and
perennial streams to pass peak flows. Assure that at minimum the Flood
Management Performance Standards of Title 3 of Metro's Urban Growth
Management Functional Plan are applied to all development in urban
expansion areas, together with any other steps needed to protect
hydrologic capacity. In combination with the buffer or set-back
provisions above, this means that for new, large developments, fill or
dredging should never occur unless in conjunction with a necessary
stream crossing.
(8) Landscape to reduce need for watering and application of
herbicides, pesticides and fertilizer. Plans must include techniques
local governments will use to encourage planting with native
vegetation, reduction of lawn area, and reduced water use. These steps
will contribute to water conservation and ultimate reduction of flow
demands that compete with fish needs, as well as reduce applications of
fertilizers, pesticides, herbicides that may contribute to water
pollution.
(9) Prevent erosion and sediment run-off during and after
construction to prevent discharge of sediments by assuring that at a
minimum the requirements of Title 3 of Metro's Urban Growth Management
Functional Plan are applied to all development in Metro-area urban
expansion areas, and that an equivalent level of protection is provided
in other large scale urban developments.
(10) Assure that water supply demands for the new development can
be met without impacting flows needed for threatened salmonids either
directly or through groundwater withdrawals. Assure that any new water
diversions are positioned and screened in a way that prevents injury or
death of salmonids.
(11) Identify a commitment to and the responsibility to regularly
monitor and maintain any detention basins and other management tools
over the long term, and to adapt practices as needed based on
monitoring results.
(12) Provide all enforcement, funding, monitoring, reporting, and
implementation mechanisms needed to assure that ultimate development
will comply with the ordinances or the Metro Urban Growth Management
Functional Plan.
To fall outside of the take prohibitions the development must
comply with other state and Federal laws and permit requirements. NMFS
concludes that development governed by ordinances or Metro guidelines
that meet the preceding principles will address the potential negative
impacts on salmonids associated with new development. In such
circumstances adequate safeguards will be in place that NMFS does not
find imposition of additional Federal protections through take
prohibitions necessary and advisable for conservation of listed
salmonids.
[[Page 73495]]
Forest Management Limit on Take Prohibitions
In the State of Washington, NMFS has been participating in
discussions among timber industry, tribes, state and Federal agencies,
and interest groups for many months. The purpose of these discussions
was to develop modules of forest practices for inclusion in Washington
Governor Locke's salmon recovery plan, and consequent implementation
through the Department of Natural Resources. The product of those
discussions, an April 29, 1999 Forests and Fish Report (FFR) to
Governor Locke, provides important improvements in forest practice
regulation which, if implemented by the Washington Forest Practices
Board in a form at least as protective as laid out in the FFR, will
provide a significant level of protection to listed salmonids and
contribute to their conservation. It also mandates that all existing
forest roads be inventoried for potential impacts on salmonids through
culvert inadequacies, erosion, slope failures, and the like, and all
needed improvements be completed within 15 years. Because of the
substantial detrimental impacts of inadequately sited, constructed or
maintained forest roads on salmonid habitat, this feature of the
overall FFR provides a significant conservation benefit for listed ESUs
in Washington. Because of these features, described in greater detail
here, NMFS does not propose to apply ESA section 9 take prohibitions to
non-federal forest management activity conducted in the State of
Washington in compliance with the April 29, 1999 FFR and forest
practice regulations implemented by the Washington Forest Practices
Board that are at least as protective of habitat functions as are the
regulatory elements of the FFR. Compliance with the provisions of FFR
will address problems historically associated with forest management
activity. NMFS concludes that in general the FFR package creates
adequate safeguards that no additional Federal protections through
imposition of take prohibitions to forest management activity is
necessary and advisable for conservation of threatened salmonids.
NMFS believes rapid adoption and implementation of such improved
forest practice regulations important to conservation of listed
salmonids. Before making a judgement on the adequacy of regulations
developed to implement the FFR, NMFS will provide an opportunity for
public review and comment.
This restriction of the take prohibitions is limited to the State
of Washington. Environmental factors such as current habitat
conditions, climate and geology, landscape conditions, and functioning
habitat elements vary between ecoregions. In addition, procedural and
regulatory differences between Washington and other states containing
steelhead ESUs limit the applicability of the FFR or similar provisions
to watersheds outside of the State of Washington. Therefore, the take
prohibitions applied generally by this proposed rule would apply to
forest management activities in other states.
Although NMFS will continue working with Washington and others
toward broadening this ``exception'', at this time information
limitations prevent NMFS from determining that pesticide use or actions
under an alternative forest management plan, as contemplated in the
total FFR package, are sufficiently protective. Therefore, take
prohibitions applied generally by this proposal would apply to those
activities.
Elements of the FFR that provide protections or conservation
benefits for listed salmonids are summarized here; anyone wishing to
review the actual text of or details of those measures should request a
copy of the FFR document (see ADDRESSES).
(1) It is based on adequate classification of water bodies and
broad availability of stream typing information. Effective maintenance
and recovery of fish habitats and populations requires specific
geographic knowledge of existing and potential fish habitats as well as
the higher elevation, non-fishbearing stream systems that create and
influence them. Forest practices should be tailored to protect and
reinforce the functions and roles of different stream classes in the
continuum of the aquatic ecosystem, such as (A) fishbearing streams
which are within the bankfull width of defined stream channels that are
currently or potentially capable of supporting fish of any species,
perennially or seasonally; (B) perennial, non-fishbearing streams,
which include spatially intermittent streams; and (C) seasonal, non-
fishbearing streams (intermittent or non-perennial), which have a
defined channel that flows water, of any flow volume, some time during
the water year. Landowners, regulatory agencies, and the public should
have reasonable access to this information, preferably through
Geographic Information Systems, or some other accessible repository of
stream typing information.
(2) It provides for proper design and maintenance and upgrade of
existing and new forest roads, which is necessary to maintain and
improve water quality and instream habitats. Impacts associated with
forest roads include changes in hydrology (basin capture, interception
of groundwater, increased peak flows); generation and routing of coarse
and fine sediments; physical impediments to fish passage; altered
riparian function; altered fluvial processes and floodplain
interaction; and direct loss of off-channel habitats. The FFR
provisions include: (A) avoiding road construction or reconstruction in
riparian areas unless alternative options for road construction would
likely cause greater damage to aquatic habitats or riparian functions;
(B) prohibits road construction or reconstruction on unstable slopes
unless an analysis involving qualified geotechnical personnel and an
opportunity for public environmental input shows that road construction
can proceed without creating activity-related landslides, sediment
delivery or other impacts to stream channels or water bodies; (C) new
and reconstructed roads must not impair hydrologic connections between
stream channels, ground water, and wetlands; must not increase
sedimentation to aquatic systems; must use only clean fill materials;
and must have adequate drainage and surfacing. Stream crossings must
provide adequate fish passage and be designed to accommodate a 100-year
flood as well as adequate large woody debris passage; (D) requires of
each landowner/operator an inventory of the condition of all roads
within that management ownership, and a plan for repair,
reconstruction, maintenance, access control, and where needed
abandonment and/or obliteration of all roads in any land ownership.
Inventory showing priorities for all needed work should be completed
within 5 years, and work identified as needed completed within 15
years. Road maintenance plans for all new or reconstructed roads must
address routine operations (grading, ditch cleaning, etc.), placement
of spoil or graded sediments, retention of coarse and large woody
debris at stream crossings, placement of large woody debris recruited
in proximity to riparian roads, and emergency repairs; (E) requires
BMPs in all other aspects of forest road operations, including log haul
use, recreational use, and seasonal closure as needed to maintain and
improve stream habitats and water quality to meet seasonal life history
requirements for fishes.
(3) It protects unstable slopes from increased rates and volume of
failure delivering coarse and fine sediments to aquatic systems, which
can significantly
[[Page 73496]]
impair fish species life stages. The goal for management of unstable
slopes is to avoid an increase or acceleration of the naturally
occurring rate and volume of landslides within forested watersheds
subject to forest practices, while recognizing that mass-wasting of
slopes is an essential element in watershed processes that route large
woody debris through the stream system. The program provides a process
through which the Washington Department of Natural Resources (DNR)
attempts to identify potentially unstable slopes in areas subject to
forest operations through interpretation of slope gradient, landform,
surficial and parent geologies, current and historic aerial
photography, landslide inventories, and computer models of slope
stability. These will include inner gorges of streams, convergent
headwalls and bedrock hollows with slopes greater than 70 percent, toes
of deep-seated landslides with slopes greater than 65 percent,
groundwater recharge areas for glacial, or other, deep-seated
landslides, soil covered slopes steeper than 70 percent, and slopes
along the outer bend of stream channels that have the potential to fail
with continued fluvial erosion at the channel toe slope interface.
If a management activity on a potentially unstable slopes is found
by the DNR to increase the probability of slope failure, deliver
sediment to public resources, and is likely to cause significant
adverse impacts, then DNR may approve, approve with conditions, or
disapprove the application;
(4) It provides for achieving properly functioning riparian
conditions along fishbearing waters. Proper function refers to the
suite of riparian functions that includes stream bank stability, shade,
litterfall and nutrient input, large woody debris recruitment, and such
microclimate factors as air and soil temperature, windspeed, and
relative humidity that affect both instream habitat conditions and the
vigor and succession of riparian forest ecosystems. Assessing the
adequacy of riparian conservation measures requires a synthesis of
judgements about individual functions. For example, NMFS judgements
about large woody debris function will be based on the proposed
management widths, the probability of tree fall with distance from the
stream and site potential tree heights of dominant and subdominant
species in a mature riparian forest.
Two possible strategies may be followed to achieve properly
functioning riparian ecosystems.
A natural succession and growth strategy establishes riparian
management zone widths within which no silvicultural treatments occurs.
These widths must be at least 2/3 or 3/4 of a site potential tree
height for typical dominant conifers, depending on stream width.
Disturbance for activities such as road crossings and cable yarding
corridors should be avoided. Where ground and vegetation disturbance is
unavoidable, it must be limited to a small percentage of the riparian
area. Riparian stand development must be allowed to proceed under
natural rates of growth and succession to mature conditions,
undisturbed by future harvest or silvicultural activities. This
strategy is expected to be employed when an evaluation of the riparian
zone shows that all available trees need to be retained and allowed to
grow and succeed to achieve the desired future conditions and the
landowner does not choose to apply silvicultural treatments to
accelerate these processes.
A managed succession and growth strategy achieves properly
functioning conditions by providing potentially variable width
management zones within which silvicultural treatments are allowed.
These treatments are prescribed through silvicultural guidelines that
assure NMFS that the riparian forest stand is on a growth and
succession pathway toward a desired future condition of a mature
riparian forest. Once the trajectory of growth toward the desired
future condition is achieved the riparian forest must remain on that
trajectory without further harvest or silvicultural treatment. Both
strategies are expected to provide high levels of riparian function
when implemented.
Characteristics of both the natural succession and managed growth
strategies include:
(1) Continuous riparian management zones along all fish-bearing
streams.
(2) A core zone at least 50 ft (15.24 m) wide west of the Cascades
and 30 ft (9.15 m) on the east side, within which no harvest or salvage
occurs. This width is measured horizontally from edge of the bankfull
channel or where channel migration occurs, from the edge of the channel
migration zone.
(3) An inner zone that varies in width by strategy.
(4) An outer zone extending to a site potential tree height (100-
year base) that provides a minimum of 20 conifer trees per acre greater
than 12 inches (.30 m) diameter at breast height. These trees will not
be counted as trees retained to satisfy DFC silvicultural guidelines;
and
(5) Disturbance limits do not exceed 20 percent of the overstory
canopy along the stream length for yarding corridors and 10 percent
ground disturbance. Ground disturbance includes, but is not limited to,
yarding corridors, soil compaction and exposure, stream crossings and
other effects that are a product of log yarding and equipment use. Tree
retention to satisfy silvicultural guidelines must be achieved
regardless of the area modified for yarding corridors.
The managed succession and growth strategy will achieve desired
future conditions for riparian forest ecosystems through:
(6) Selecting a stand composition and age that represents a mature
riparian forest as the desired future condition. Generally, mature
riparian forest conditions are achieved at between 80 and 200 years, or
more, together with a detailed description of basal area, stocking
levels, average tree diameters and range of tree diameters of desired
species, and any other characteristics needed to describe the desired
future condition. The strategy then sets out a comprehensive set of
prescriptions that describe the basal area, stocking, tree diameters,
and other metrics that must be retained in a stand of any particular
age or composition, to allow forest stand growth and succession to
proceed toward DFC. These prescriptions vary with site productivity
(100-year base), dominant species, and likely successional pathways and
take into account natural disturbance processes, agents and patterns
that affect pathways toward the desired future condition.
Silvicultural treatments must be conservative and be limited to only
those actions that assure achievement of DFC. Dominant and co-dominant
trees will be retained. Once this DFC trajectory has been achieved the
riparian stand will be allowed to grow and succeed without further
harvest or treatment.
(7) A methodology for field application of riparian prescriptions
that provides assurances that desired future conditions will be
achieved.
(8) Requiring riparian conservation zone widths that provide bank
stability, litterfall and nutrients, shade, large woody debris,
sediment filtering, and microclimate functions in the near and long-
term. Widths of the inner riparian zone may vary depending on site
productivity, silvicultural guidelines and expected trajectories toward
the DFC but must be 80 ft (24.5 m) or greater for the poorest
productivity class. As site productivity increases so must the inner/
core zone minimum widths. These minimum widths are necessary to provide
riparian functions such as microclimate and shade that may be
compromised when, for example,
[[Page 73497]]
mature, conifer-dominated riparian stands are managed.
(9) Providing for mitigation for disturbance of riparian function,
water quality, and fluvial (floodplain) processes from permanent road
systems near stream channels through such techniques as replacement of
basal area and number of stems lost to the road prism, and placement of
trees that have fallen across or onto the fill or cutslopes of riparian
roads to the streamward side of the road as part of routine or
emergency road maintenance activities.
(10) Treatment guidelines by tree species and region that address
stocking levels, tree selection, spacing, and other common forest
metrics for a given stand age and condition necessary to achieve the
DFC; requires protection and release of residual or understory tree
species that would form a desirable component of a future mature
riparian forest; requires retention of structural diversity in the
stand, including openings (spatial diversity), species diversity, and
emphasis on tree retention on topographic features that increase the
probability of tree fall toward stream channels; and guidelines for
maintaining shade necessary to meet fish life history requirements.
Shade retention along fish-bearing streams, sensitive sites such as
seeps and springs, and other groundwater source areas must be 100
percent of the available shade unless local and/or regional water
temperature models and/or standards can be shown to meet fish life
history requirements.
(11) Guidelines for conversion of hardwood-dominated riparian areas
that cannot achieve the stand requirements of forest stands on a
successional pathway toward a desired future condition. They include a
50-ft (15 m) core zone that is not managed and is disturbed only for
road crossings and yarding corridors. All overstory conifers must be
retained and damage to understory conifers in the inner zone minimized.
It also includes a minimum tree retention standard for the outer zone.
(12) A strategy for the conservation of fluvial processes and fish
habitats that occur within the channel migration zone. Channel
migration zones include those potential and standing riparian forests
that occur on floodplains and low terraces along channels that migrate
rapidly (on a geologic time-scale) over their valley floors. The area
within the channel migration zone is susceptible to flooding and
catastrophic events that often rapidly recruits standing and deposited
woody material. Secondary channels provide summer and winter habitats
for fishes. Therefore, core riparian management zones are measured from
the channel migration zone boundary, when present.
(13) Guidelines for salvage of dead or downed timber in the inner
and outer riparian zones that retain coarse woody debris on the
riparian forest floor at levels seen in mature forests, retain live or
standing dead trees in the inner zone that have value as future large
woody debris and that can add structural and species diversity to the
future riparian forest, retain all dead or downed timber within the
channel, any channel migration zone, and the core zone, and minimize
site preparation necessary for replanting.
(14) Evaluating the effects of multiple forest practices on the
watershed scale through a standardized, repeatable methodology based on
the best available science, considering the cumulative effects of
forest practices over time, and providing a regulatory basis for
precluding or delaying forest practices to prevent actual or potential
damage to aquatic habitats that directly or indirectly support
anadromous salmonids.
(15) It sets up riparian management zones along perennial and
seasonal non-fish bearing streams that:
(A) Manage heat energy input to surface waters by retaining all
existing overstory canopy along at least 50 percent of the length of
perennial non-fish bearing streams. Shade retention around sensitive
sites such as seeps and springs, and other groundwater source areas is
100 percent of the available shade unless local and/or regional water
temperature models and/or standards can be shown to meet fish life
history requirements.
(B) Limit the maximum percent of the riparian management area that
may be subject to soil disturbance, soil compaction and the mortality
alteration of vegetation from equipment, cable movements, log yarding,
and road crossings.
(C) Limit equipment use within 30 ft (10 m) of perennial and
seasonal non-fishbearing streams.
(D) Ensure partial recruitment and routing of woody material
through defined channels to fishbearing waters downstream by retaining
an unmanaged riparian zone in excess of one-half of a crown diameter of
a mature dominant riparian tree along at least 50 percent of the length
of perennial waters.
(E) Provide a continuous riparian buffer in excess of one-half of a
crown diameter of a mature dominant riparian tree for a distance of 300
to 500 ft (91.5 to 152.5 m) upstream of confluences with fishbearing
waters. This continuous buffer serves as a run-out zone for channelized
landslides, an opportunity for groundwater interaction with surface
waters and as an important source area for large woody debris recruited
to fishbearing streams downstream.
(16) It includes monitoring and adaptive management to assess
implementation compliance with, and effectiveness of, current
regulations, measured against a baseline data set. Over time, some
forest practices will require replacement or adjustment to respond to
additions to our current body of knowledge. Whenever monitoring
information or new scientific knowledge lead the state forest practice
agency to amend a program that has been brought within this
``exception'', NMFS will publish notification in the Federal Register
announcing the availability of those changes for review and comment.
Such a notice will provide for a comment period of not less than 30
days, after which NMFS will make a final determination whether the
changes conserve listed salmonids and, therefore, are included within
this limit on the take prohibitions.
NMFS finds that, except with respect to pesticide applications and
actions under alternative plans, with these safeguards in place,
imposition of take prohibitions on forest management activities in
Washington is not necessary and advisable because it would not provide
meaningful additional conservation benefits for listed salmonids.
This limit on the take prohibitions will be applicable only within
the State of Washington, because an adequate program for any other
state would have to take into account interregional and interstate
differences in land conditions, current function of various habitat
elements, and other differences in situation that affect the biological
status of salmonids.
Public Comments Solicited; Public Hearings
NMFS is soliciting comments, information, and/or recommendations on
any aspect of this proposed rule from all concerned parties. (see DATES
and ADDRESSES). Public hearings provide an additional opportunity for
the public to give comments and to permit an exchange of information
and opinion among interested parties. NMFS Northwest Region has,
therefore, scheduled 15 public hearings throughout the Northwest to
receive public comment on this rule and other ESA 4(d) rules proposed
concurrently. Similarly, NMFS' Southwest Region will hold 7 hearings in
California. The agency will consider all information,
[[Page 73498]]
comments, and recommendations received before reaching a final decision
on 4(d) protections for these ESUs.
Public Hearings in Washington, Idaho, and Oregon
(1) January 10, 2000, 6:00 - 9:00 p.m., Metro Regional Center,
Council Chamber, 600 NE Grand Ave, Portland, Oregon;
(2) January 11, 2000, 6:00 - 9:00 p.m., Quality Inn, 3301 Market St
NE, Salem, Oregon;
(3) January 12, 2000, 6:00 - 9:00 p.m., Lewiston Community Center,
1424 Main Street, Lewiston Idaho;
(4) January 13, 2000, 6:00 - 9:00 p.m., Natural Resource Center,
Bureau of Land Management, 1387 South Vinnell Way, Boise, Idaho;
(5) January 18, 2000, 6:00 - 9:00 p.m., City Library, 525 Anderson
Ave., Coos Bay, Oregon;
(6) January 19, 2000, 6:00 - 9:00 p.m., Hatfield Science Center,
2030 SE Marine Science Drive, Newport, Oregon;
(7) January 20, 2000, 6:00 - 9:00 p.m., Columbia River Maritime
Museum, 1792 Marine Drive, Astoria, Oregon;
(8) January 24, 2000, 6:00 - 9:00 p.m., Eugene Water & Electric
Board Training Room, 500 East 4TH Ave. Eugene, Oregon;
(9) January 25, 2000, 6:00 - 9:00 p.m., City Hall, 2nd
Floor Council Chamber, 500 SW Dorian Ave., Pendleton, Oregon;
(10) January 26, 2000, 6:00 - 9:00 p.m., Yakima County Courthouse,
Room 420, 128 North 2nd St., Yakima, Washington
(11) January 27, 2000, 6:00 - 9:00 p.m., Mid Columbia Senior
Center, John Day Room, 1112 West 9th, The Dalles, Oregon;
(12) January 31, 2000, 6:00 - 9:00 p.m., City Hall, Dining Room
(Basement), 904 6th St., Anacortes, Washington;
(13) February 1, 2000, 6:00 - 9:00 p.m., Northwest Fisheries
Science Center Auditorium, 2725 Montlake Blvd. East, Seattle,
Washington;
(14) February 2, 2000, 6:00 - 9:00 p.m., City Hall, Council
Chamber, 321 E. 5th, Port Angeles Washington;
(15) February 3, 2000, 6:00 - 9:00 p.m., Sawyer Hall, 510 Desmond
Drive, Lacey, Washington;
Public Hearings in California
(1) January 25, 2000, 6:30 - 9:00 p.m., Double Tree (now Red Lion),
1830 Hilltop Drive, Redding, California;
(2) January 26, 2000, 6:30 - 9:00 p.m., Heritage Hotel, 1780
Tribute Rd., Sacramento, California
(3) January 27, 2000, 6:30 - 9:00 p.m., Modesto Irrigation
District, 1231 11th St., Modesto, California;
(4) January 31, 2000, 6:30 - 9:00 p.m., Eureka Inn, 518 Seventh
St., Eureka, California;
(5) February 1, 2000, 6:30 - 9:00 p.m., Double Tree, One Double
Tree Drive, Rohnert Park, California;
(6) February 2, 2000, 6:30 - 9:00 p.m., Best Western, 2600 Sand
Dunes Drive, Monterey, California;
(7) February 3, 2000, 7:00 - 9:30 p.m., Embassy Suites, 333 Madonna
Rd., San Luis Obispo, California. 7:00-9:30P
Special Accomodations
These hearings are physically accessible to people with
disabilities. Requests for sign language interpretation or other aids
should be directed to Garth Griffin or Craig Wingert (see ADDRESSES) by
7 days prior to each meeting date.
References
A list of references cited in this proposed rule is available upon
request (see ADDRESSES).
Classification
Regulatory Flexibility Act
When an agency proposes regulations, the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601-612) requires the agency to prepare and make
available for public comment an initial regulatory flexibility analysis
(IRFA) that describes the impact of the proposed rule on small
businesses, nonprofit enterprises, local governments, and other small
entities, unless the agency is able to certify that the action will not
have a significant impact on a substantial number of small entities.
The IRFA is to aid the agency in considering all reasonable regulatory
alternatives that would minimize the economic impact on affected small
entities.
The RFA was designed to ensure that agencies carefully assess
whether aspects of a proposed regulatory scheme (record keeping, safety
requirements, etc.) can be tailored to be less burdensome for small
businesses while still achieving the agency's statutory
responsibilities. This proposed ESA 4(d) rule has no specific
requirements for regulatory compliance; it essentially sets an
enforceable performance standard (do not take listed fish) that applies
to all entities and individuals within the ESU unless that activity is
within a carefully circumscribed set of activities on which NMFS
proposes not to impose the take prohibitions. Hence, the universe of
entities reasonably expected to be directly or indirectly impacted by
the prohibition is broad.
The number of entities potentially affected by imposition of take
prohibitions is substantial and the geographic range of these
regulations crosses four states. Activities potentially affecting
salmonids are those associated with agriculture, forestry, fishing,
mining, heavy construction, highway and street construction, logging,
wood and paper mills, electric services, water transportation, and
other industries. As many of these activities involve local, state, and
Federal oversight, including permitting, governmental activities from
the smallest towns or planning units to the largest cities will also be
impacted. The activities of some nonprofit organizations will also be
affected by these regulations.
NMFS examined in as much detail as practical the potential impact
of the regulation on a sector by sector basis. Unavailable or
inadequate data leaves a high degree of uncertainty surrounding both
the numbers of entities likely to be affected, and the characteristics
of any impacts on particular entities. The problem is complicated by
differences among entities even in the same sector as to the nature and
size of their current operations, contiguity to waterways, individual
strategies for dealing with the take prohibitions, etc.
There are no record-keeping or reporting requirements associated
with the take prohibition and, therefore, it is not possible to
simplify or tailor record keeping or reporting to be less burdensome
for small entities. Some programs for which NMFS has found it not
necessary to prohibit take involve record keeping and/or reporting to
support that continuing determination. NMFS has attempted to minimize
any burden associated with programs for which the take prohibitions are
not enacted.
In formulating this proposed rule, NMFS considered several
alternative approaches, described in more detail in the IRFA. These
included (1) Enacting a ``global'' protective regulation for threatened
species, through which section 9 take prohibitions are applied
automatically to all threatened species at the time of listing; (2) ESA
4(d) protective regulations with no limits, or only a few limits, on
the application of the take prohibition for relatively uncontroversial
activities such as fish rescue/salvage; (3) Take prohibitions in
combination with detailed prescriptive requirements applicable to one
or more sectors of activity; (4) ESA 4(d) protective regulations
similar to the existing interim 4(d) protective regulations for
Southern Oregon/Northern California coast coho, which includes four
additional limitations on the extension of the take prohibition, for
harvest plans, hatchery plans, scientific research, and habitat
restoration projects, when in conformance with specified criteria; (5)
A protective
[[Page 73499]]
regulation similar to the interim rule, but with recognition of more
programs and circumstances in which application of take prohibitions is
not necessary and advisable. That is the approach taken in this
proposed rule, which limits the take prohibition for the seven items
discussed above, but would also limit application of the take
prohibition for properly screened water diversions, for routine road
maintenance in Oregon, for Portland's Parks and Recreation Department
integrated pest management program, for urban density development
activities, and for forest management (including timber harvest) in
Washington. For several of these categories (harvest, artificial
propagation, habitat restoration, and urban development) the regulation
is structured so that it allows plans or programs developed after
promulgation of the rule to be submitted to NMFS for review under the
criteria in the rule; (6) An option earlier advocated by the State of
Oregon and others, in which ESA section 9 take prohibitions would not
be applied to any activity addressed by the Oregon Plan for Salmon and
Watersheds, fundamentally deferring protections to the state. At
present, NMFS concludes that doing so would not provide sufficient
protections to the listed steelhead; and (7) Enacting no protective
regulations for threatened steelhead. That course would leave the ESUs
without any protection other than provided by ESA section 7
consultations for actions with some Federal nexus. Since NMFS' decision
to list the ESUs as threatened, identifying broad segments of human
activity as major factors in the decline of these steelhead ESUs, NMFS
could not support that approach at this time as being consistent with
the obligation to enact such protective regulations as are ``necessary
and advisable to provide for the conservation of'' the listed
steelhead.
NMFS concludes that at the present time there are no legally viable
alternative rules that would have less impact on small entities and
still fulfill the agency's obligations to protect listed salmonids. The
first four alternatives may result in unnecessary impacts on economic
activity of small entities, given NMFS' judgment that more limited
protections would suffice to conserve the species.
If you believe the alternative contained in this proposed rule will
impact your economic activity, please comment on whether there is a
preferable alternative (including alternatives not described here) that
would meet the statutory requirements of ESA section 4(d). Please
describe the impact that alternative would have on your economic
activity and why the alternative is preferable.
Executive Order 12866
In applying take prohibitions broadly to protect seven ESUs of
threatened salmonids, this proposed rule likely constitutes a
significant action for purposes of Executive Order 12866. As discussed
with respect to the Regulatory Flexibility Act analysis, data are not
available to quantify the impacts on small entities in specific sectors
of the economy; for the same reasons it is not possible to quantify
costs of avoiding take of listed fish for all portions of the economy.
However, as discussed earlier, NMFS has a clear statutory
responsibility to enact whatever protective regulations are necessart
to provide for conservation of threatened species. Abdicating that
responsibility is not an option. For several prior listings of
threatened salmonids, take prohibitions were imposed in a blanket
manner, with no limitations. In the case of these seven salmonid ESUs,
NMFS has sought an alternative to blanket imposition of the
prohibitions. NMFS has worked with a variety of jurisdictions to
identify programs or sectors of activity for which it is not necessary
and advisable to impose take prohibitions, and this proposed rule
recognizes thirteen such circumstances as limits on take prohibitions.
NMFS believes that this approach provides the benefits demanded by the
ESA (protection of threatened species) while minimizing uncertainty and
costs for sectors of the economy wherever possible.
Executive Order 13084-Consultation and Coordination with Indian Tribal
Governments
The United States has a unique legal relationship with tribal
governments as set forth in the Constitution, treaties, statutes, and
Executive Orders. In keeping with this relationship, with the mandates
of the Presidential Memorandum on Government to Government Relations
with Native American Tribal Governments (59 FR 22951), and with
Executive Order 13084, NMFS has coordinated with tribal governments and
organizations in the geographic areas affected by this proposed rule as
it was developed over the past year. For instance, NMFS has provided
these entities with the opportunity to provide input on the draft rule
and the approach taken. In addition, NMFS has met with tribal
governments and organizations and had numerous individual staff-to-
staff conversations, in an effort to give consideration to the
viewpoints of tribes and tribal organizations related to the protection
of these species.
NMFS will schedule more formal consultation opportunities with each
potentially affected tribe, to be completed during the first two months
after publication. NMFS will continue to give careful consideration to
all written or oral comments received and will continue its contacts
and discussions with interested tribes as the agency moves toward a
final rule.
Executive Order 13132-Federalism
In keeping with the intent of the Administration and Congress to
provide continuing and meaningful dialogue on issues of mutual State
and Federal interest, NMFS has conferred with numerous State, local and
other governmental entities in the course of preparing this proposed
rule. As the process continues, NMFS intends to continue engaging in
informal and formal contacts with all affected States, discussing the
rule with any interested local or regional entities and giving careful
consideration to all written or oral comments received. As one part of
that continued process, NMFS has scheduled public hearings to be held
throughout the geographic range of the affected ESUs.
NMFS' interim ESA 4(d) rule for Southern Oregon/Northern California
Coast coho ESU (62 FR 38479) was the first instance in which the agency
defined some reasonably broad categories of activity, both public and
private, for which take prohibitions were not necessary and advisable.
Since then, NMFS has continued discussions with various Oregon and
California governmental agencies and representatives involved with that
ESU, and has also sought working relationships with other States and
governmental organizations promoting salmonid restoration efforts
throughout the geographic range affected by this proposed rule. Some of
the limits in this proposed rule reflect the coordination NMFS has had
with State and local jurisdictions.
In addition to these efforts, NMFS' staff have given numerous
presentations to interagency forums, community groups, and others, and
served on a number of interagency advisory groups or task forces
considering conservation measures. Many cities, counties and other
local governments have sought guidance and consideration of their
planning efforts from NMFS, and NMFS' staff have met with them as
rapidly as our resources permit. Finally, NMFS' Sustainable Fisheries
Division staff have continued close coordination with State fisheries
agencies toward
[[Page 73500]]
development of artificial propagation and harvest plans and programs
that will be protective of listed salmonids and ultimately may be
recognized within this rule. NMFS expects to continue to work with all
of these entities and others toward the clearest and best possible
final rule that protects these affected ESUs, and toward recognizing
other conservation efforts in future amendments or through other ESA
mechanisms.
Paperwork Reduction Act
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection-of-information subject to the
requirements of the Paperwork Reduction Act (PRA), unless that
collection of information displays a currently valid Office of
Management and Budget (OMB) control number.
This proposed rule contains collection-of-information requirements
subject to review and approval by OMB under the PRA. These requirements
have been submitted to OMB for approval. Public reporting burden for
this collection-of-information is estimated to average 5 hours per
response for water diverters who elect to provide documentation that
their diversion structures are screened to NMFS criteria; 20 hours per
response for cities or counties that elect to take advantage of the
ODOT routine road maintenance program; or 30 hours per response for
Metro, cities, or counties that elect to submit guidelines or
ordinances for a limit on take prohibitions for urban development.
Annual reporting for the limit regarding aiding sick, injured, stranded
salmonids is estimated to average 5 hours. Annual reporting for the
urban development limit is estimated to average 10 hours. This proposed
rule also contains a collection-of-information requirement associated
with habitat restoration activities conducted under watershed plans
that has received PRA approval from OMB under control number 0648-0230.
The public reporting burden for the approval of Watershed Plans is
estimated to average 10 hours. These estimates include any time
required for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Also, this proposed rule contains
collection-of-information requirements not subject to the PRA because
they are not requirements of general applicability, affecting fewer
than ten potential respondents.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection-of-
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to NMFS
(see ADDRESSES) and to OMB at the Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington, DC. 20503
(Attention: NOAA Desk Officer). Comments must be received by February
28, 2000.
National Environmental Policy Act
NMFS has completed an Environmental Assessment (EA) for this action
pursuant to the National Environmental Policy Act of 1969, 42 U.S.C.
4321 et seq. NMFS concludes that this alternative will not result in
environmentally significant negative impacts and may have several
beneficial effects, and that preparation of an Environmental Impact
Statement is not required. Copies of the EA are available (see
ADDRESSES).
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: December 15, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 223 is
proposed to be amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 223 is revised to read as
follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also
issued under; 16 U.S.C. 1361 et seq.;
2. 223.208 is added to read as follows:
Sec. 223.208 Steelhead.
(a) Prohibitions. The prohibitions of section 9 of the ESA (16
U.S.C. 1538) relating to endangered species apply to the threatened
species of salmonids listed in Sec. 223.102(a)(5) through (a)(9),
(a)(14), and (a)(15), except as provided in paragraph (b) of this
section.
(b) Limits on the take prohibitions. (1) The exceptions of section
10 of the ESA (16 U.S.C. 1539) and other exceptions under the Act
relating to endangered species, including regulations implementing such
exceptions, also apply to the threatened species of salmonids listed in
Sec. 223.102(a)(5) through (a)(9), (a)(14), and (a)(15). This section
supersedes other restrictions on the applicability of part 222 of this
chapter.
(2) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(9), (a)(14), and (a)(15) do not apply to activities specified in an
application for a permit for scientific purposes or to enhance the
conservation or survival of the species, provided that the application
has been received by the Assistant Administrator for Fisheries, NOAA
(AA), no later than 30 days from date of publication of the final rule
in the Federal Register. The prohibitions of paragraph (a) of this
section apply to these activities upon the AA's rejection of the
application as insufficient, upon issuance or denial of a permit, or 6
months after effective date of the final rule, whichever occurs
earliest.
(3) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(9), (a)(14), and (a)(15) do not apply to any employee or designee
of NMFS, the United States Fish and Wildlife Service, any Federal land
management agency, the Idaho Department of Fish and Game, Washington
Department of Fish and Wildlife, the Oregon Department of Fish and
Wildlife, the California Department of Fish and Game, or any Tribe,
when the employee or designee, acting in the course of their official
duties, takes a threatened salmonid without a permit if such action is
necessary to:
(i) Aid a sick, injured, or stranded salmonid,
(ii) dispose of a dead salmonid, or
(iii) salvage a dead salmonid which may be useful for scientific
study.
(iv) Each agency acting under this limit on the prohibitions of
paragraph (a) of this section is to report to NMFS the numbers of fish
handled and their status, on an annual basis. A designee of the listed
entities is any individual the Federal or state fishery agency, or
other co-manager has authorized in writing to perform the listed
functions.
(4) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(9), (a)(14), and (a)(15) do not apply to fishery harvest activities
provided that:
(i) Fisheries are managed in accordance with a NMFS-approved
[[Page 73501]]
Fishery Management and Evaluation Plan (FMEP) and implemented in
accordance with a Memorandum of Agreement (MOA) between the state of
Washington, Oregon, Idaho or California (State) and NMFS. NMFS will
approve an FMEP only if it clearly defines its intended scope and area
of impact, and sets forth management objectives and performance
indicators for the plan. The plan must adequately address the following
criteria:
(A) Defines populations within affected ESUs, taking into account
spatial and temporal distribution; genetic and phenotypic diversity;
and other appropriate identifiable unique biological and life history
traits. Populations may be aggregated for management purposes when
dictated by information scarcity, if consistent with survival and
recovery of the ESU. In identifying management units, the plan shall
describe the reasons for using such units in lieu of population units
and describe how the management units are defined, given biological and
life history traits, so as to maximize consideration of the important
biological diversity contained within the ESU, respond to the scale and
complexity of the ESU, and help ensure consistent treatment of listed
salmonids across a diverse geographic and jurisdictional range.
(B) Determines and applies thresholds for viable and critical
populations consistent with the concepts contained in a draft technical
document titled ``Viable Salmonid Populations'' (NMFS, December 1999).
Before this regulation becomes final, the Director of the Federal
Register must approve this incorporation by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the draft paper may
be obtained on request to NMFS, Protected Resources Division, 525 NE
Oregon St., Suite 500, Portland, OR 97232-2737, or NMFS, Office of
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910.
The Viable Salmonid Populations paper provides a framework for
identifying the biological requirements of listed salmonids, assessing
the effects of management and conservation actions, and insuring that
such actions provide for the survival and recovery of listed species.
Proposed management actions must recognize the significant differences
in risk associated with these two threshold states and respond
accordingly to minimize the risks to long-term population. Harvest
actions impacting populations that are functioning at or above the
viable threshold must be designed to maintain the population or
management unit at or above that level. For populations shown with a
high degree of confidence to be above critical levels but not yet at
viable levels, harvest management must not appreciably slow the
population's achievement of viable function. Harvest actions impacting
populations that are functioning at or below critical threshold must
not be allowed to appreciably increase genetic and demographic risks
facing the population and must be designed to permit the population's
achievement of viable function, unless the plan demonstrates that such
an action will not appreciably reduce the likelihood of survival and
recovery of the ESU in the wild despite any increased risks to the
individual population.
(C) Sets escapement objectives or maximum exploitation rates for
each management unit or population based on its status, and a harvest
program that assures not exceeding those rates or objectives. Maximum
exploitation rates must not appreciably reduce the likelihood of
survival and recovery of the ESU. Management of fisheries where
artificially propagated fish predominate must not compromise the
management objectives for commingled naturally spawned populations.
(D) Displays a biologically based rationale demonstrating the
harvest management strategy will not appreciably reduce the likelihood
of survival and recovery of the ESU in the wild, over the entire period
of time the proposed harvest management strategy affects the
population, including effects reasonably certain to occur after the
proposed actions cease.
(E) Includes effective monitoring and evaluation programs to assess
compliance, effectiveness and parameter validation. At a minimum,
harvest monitoring programs must collect catch and effort data,
information on escapements, and information on biological
characteristics such as age, fecundity, size and sex data, and
migration timing.
(F) Provides for evaluating monitoring data and making any
revisions of assumptions, management strategies, or objectives that
data shows are needed.
(G) Provides for effective enforcement and education. Coordination
among involved jurisdictions is an important element in ensuring
regulatory effectiveness and coverage.
(H) Includes restrictions on resident species fisheries that
minimize and adequately limit any take of listed species, including
time, size, gear, and area restrictions; and elimination of put-and-
take fisheries in waters with listed anadromous salmonids.
(I) Is consistent with plans and conditions set within any Federal
court proceeding with continuing jurisdiction over tribal harvest
allocations.
(ii) The state monitors the amount of take of listed salmonids
occurring in its fisheries and provides to NMFS on an annual basis a
report summarizing this information, as well as the implementation and
effectiveness of the FMEP. The State shall provide NMFS with access to
all data and reports prepared concerning the implementation and
effectiveness of the FMEP.
(iii) The state confers annually with NMFS on their fishing
regulation changes to ensure congruity with the approved FMEP.
(iv) Prior to approving a new or amended FMEP, NMFS will publish
notification in the Federal Register announcing its availability for
public review and comment. Such an announcement will provide for a
comment period on the draft FMEP of not less than 30 days.
(v) NMFS approval of a plan shall be a written approval by NMFS'
Northwest or Southwest Regional Administrator, as appropriate.
(vi) On a regular basis, NMFS will evaluate the effectiveness of
the program in protecting and achieving a level salmonid productivity
commensurate with conservation of the listed salmonids. If it is not,
NMFS will identify ways in which the program needs to be altered or
strengthened. If the responsible agency does not make changes to
respond adequately to the new information, NMFS will publish
notification in the Federal Register announcing its intention to impose
take prohibitions on activities associated with that program. Such an
announcement will provide for a comment period of not less than 30
days, after which NMFS will make a final determination whether to
subject the activities to all ESA section 9 take prohibitions.
(5) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(9), (a)(14), and (a)(15) do not apply to activity associated with
artificial propagation programs provided that:
(i) A state or Federal Hatchery and Genetics Management Plan (HGMP)
has been approved by NMFS as meeting the following criteria:
(A) The plan has clearly stated goals, performance objectives, and
performance indicators that indicate the purpose of the program, its
intended results, and measurements of its performance in meeting those
results. Goals shall address whether the program is intended to meet
[[Page 73502]]
conservation objectives, contributing to the ultimate sustain ability
of natural spawning populations, and/or intended to augment tribal,
recreational, or commercial fisheries. Objectives should enumerate the
results desired from the program against which its success or failure
can be determined.
(B) The plan utilizes the concepts of viable and critical salmonid
population threshold, consistent with the concepts contained in a draft
technical document titled ``Viable Salmonid Populations'' (NMFS,
December 1999). Before this regulation becomes final, the Director of
the Federal Register must approve this incorporation by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained on request to NMFS, Protected Resources Division, 525 NE
Oregon St., Suite 500, Portland, OR 97232-2737, or NMFS, Office of
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910.
Listed salmonids may be purposefully taken for broodstock purposes only
if the donor population is currently at or above the viable threshold
and the collection will not impair its function; if the donor
population is not currently viable but the sole objective of the
current collection program is to enhance the propagation or survival of
the listed ESU; or if the donor population is shown with a high degree
of confidence to be above critical threshold although not yet
functioning at viable levels, and the collection will not appreciably
slow the attainment of viable status for that population.
(C) Taking into account health, abundance and trends in the donor
population, broodstock collection programs reflect appropriate
priorities. The primary purpose of broodstock collection programs of
listed species is to reestablish indigenous salmonid populations for
conservation purposes. Such programs include restoration of similar,
at-risk populations within the same ESU, and reintroduction of at-risk
populations to underseeded habitat. After the species' conservation
needs are met, and when consistent with survival and recovery the
species, broodstock collection programs may be authorized by NMFS for
secondary purposes, such as to sustain tribal, recreational and
commercial fisheries.
(D) The HGMP shall include protocols to address fish health,
broodstock collection, broodstock spawning, rearing and release of
juveniles, deposition of hatchery adults, and catastrophic risk
management.
(E) The HGMP shall evaluate, minimize, and account for the
propagation program's genetic and ecological effects on natural
populations, including disease transfer, competition, predation, and
genetic introgression caused by straying of hatchery fish.
(F) The HGMP will describe interrelationships and interdependencies
with fisheries management. The combination of artificial propagation
programs and harvest management must be designed to provide as many
benefits and as few biological risks as possible for the listed
species. HGMPs for programs whose purpose is to sustain fisheries must
not compromise the ability of FMEPs or other management plans to
conserve listed salmonids.
(G) Adequate artificial propagation facilities exist to properly
rear progeny of naturally spawned broodstock to maintain population
health and diversity, and to avoid hatchery-influenced selection or
domestication.
(H) Adequate monitoring and evaluation exist to detect and evaluate
the success of the hatchery program and any risks to or impairment of
recovery of the listed ESU.
(I) The HGMP provides for evaluating monitoring data and making any
revisions of assumptions, management strategies, or objectives that
data shows are needed;
(J) An MOA or some other formal agreement is in place between the
state and NMFS, to ensure proper implementation of the HGMPs and
reporting of effects and results. For Federally operated or funded
hatcheries, the section 7 consultation will achieve this purpose.
(K) The HGMP is consistent with plans and conditions set within any
Federal court proceeding with continuing jurisdiction over tribal
harvest allocations.
(ii) The state monitors the amount of take of listed salmonids
occurring in its hatchery program and provides to NMFS on an annual
basis a report summarizing this information, as well as the
implementation and effectiveness of the HGMP. The state shall provide
NMFS with access to all data and reports prepared concerning the
implementation and effectiveness of the HGMP.
(iii) The state confers with NMFS on an annual basis regarding
intended collections of listed broodstock to ensure congruity with the
approved HGMP.
(iv) Prior to final approval of an HGMP, NMFS will publish
notification in the Federal Register announcing its availability for
public review and comment for a period of at least 30 days.
(v) NMFS approval of a plan shall be a written approval by NMFS'
Northwest or Southwest Region Regional Administrator, as appropriate.
(vi) On a regular basis, NMFS will evaluate the effectiveness of
the HGMP in protecting and achieving a level salmonid productivity
commensurate with conservation of the listed salmonids. If it is not,
NMFS will identify ways in which the program needs to be altered or
strengthened. If the responsible agency does not make changes to
respond adequately to the new information, NMFS will publish
notification in the Federal Register announcing its intention to impose
take prohibitions on activities associated with that program. Such an
announcement will provide for a comment period of not less than 30
days, after which NMFS will make a final determination whether to
subject the activities to all ESA section 9 take prohibitions.
(6) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(7), (a)(8),
(a)(14), and (a)(15) do not apply to actions undertaken in compliance
with a resource management plan developed jointly by the States of
Washington and/or Oregon and the Tribes (joint plan) within the
continuing jurisdiction of U.S. v. Washington or U.S. v. Oregon, the
on-going Federal Court proceeding to enforce and implement reserved
treaty fishing rights, provided that:
(i) The Secretary has determined pursuant to 50 CFR Sec. 223.209(b)
(the limit on take prohibitions for tribal resource management plans)
and the government-to-government processes therein that implementing
and enforcing the joint tribal/state plan will not appreciably reduce
the likelihood of survival and recovery of affected threatened ESUs.
(ii) The joint plan will be implemented and enforced within U.S. v.
Washington or U.S. v. Oregon.
(iii) In making that determination for a joint plan, the Secretary
has taken comment on how any fishery management plan addresses the
criteria in 223.208(b)(4), or how any hatchery and genetic management
plan addresses the criteria in 223.208(b)(5).
(iv) The Secretary shall publish notice in the Federal Register of
any determination whether or not a joint plan will appreciably reduce
the likelihood of survival and recovery of affected threatened ESUs,
together with a discussion of the biological analysis underlying that
determination.
(7) The prohibitions of paragraph (a) of this section relating to
threatened
[[Page 73503]]
species of salmonids listed in Sec. 223.102(a)(5) through (a)(9),
(a)(14), and (a)(15) do not apply to activity associated with
scientific research provided that:
(i) Scientific research activities involving purposeful take is
conducted by employees or contractors of the Oregon Department of Fish
and Wildlife (ODFW), Washington Department of Fish and Wildlife (WDFW),
Idaho Department of Fish and Game (IDFG), or the California Department
of Fish and Game (CDFG)(Agency), or as part of a coordinated monitoring
and research program overseen by that Agency.
(ii) The Agency provides NMFS with a list of all scientific
research activities involving direct take planned for the coming year
for NMFS' review and approval, including an estimate of the total
direct take that is anticipated, a description of the study design
including a justification for taking the species and a description of
the techniques to be used, and a point of contact.
(iii) The Agency annually provides NMFS with the results of
scientific research activities directed at threatened salmonids,
including a report of the direct take resulting from the studies and a
summary of the results of such studies.
(iv) Scientific research activities that may incidentally take
threatened salmonids are either conducted by Agency personnel, or are
in accord with a permit issued by the Agency.
(v) The Agency provides NMFS annually, for its review and approval,
a report listing all scientific research activities they conduct or
permit that may incidentally take threatened salmonids during the
coming year. Such reports shall also contain the amount of incidental
take of threatened salmonids occurring in the previous year's
scientific research activities and a summary of the results of such
research.
(vi) Electrofishing in any body of water known or suspected to
contain threatened salmonids is conducted in accord with ``Guidelines
for Electrofishing Waters Containing Salmonids Listed Under the
Endangered Species Act''.
(vii) NMFS' approval of a plan shall be a written approval by NMFS'
Northwest or Southwest Region Regional Administrator, as appropriate.
(8) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(9), (a)(14), and (a)(15) do not apply to habitat restoration
activities, as defined in paragraph (b)(8)(iii) of this section,
provided that:
(i) The States of Washington, Oregon, Idaho or California (State)
certify to NMFS in writing the activity is part of a watershed
conservation plan, where:
(A) NMFS has certified to the state in writing that the State's
watershed conservation plan guidelines meet the following standards.
Guidelines must result in plans that:
(1) Consider the status of the affected species and populations;
(2) Design and sequence restoration activities based upon
information obtained from an overall watershed assessment;
(3) Prioritize restoration activities based on information from
watershed assessment;
(4) Evaluate the potential severity of direct, indirect and
cumulative impacts on the species and habitat as a result of the
activities the plan would allow;
(5) Provide for effective monitoring;
(6) Use best available science and technology of habitat
restoration, use adaptive management to incorporate new science and
technology into plans as they develop, and where appropriate, provide
for project specific review by disciplines such as hydrology or
geomorphology;
(7) Assure that any taking resulting from implementation will be
incidental;
(8) Require the state, local government, or other responsible
entity to monitor, minimize and mitigate the impacts of any such taking
to the maximum extent practicable;
(9) Will not result in long-term adverse impacts;
(10) Assure that the safeguards required in watershed conservation
plans will be funded and implemented;
(B) The state has made a written finding that the watershed
conservation plan, including its provisions for clearing projects with
other agencies, is consistent with those state watershed conservation
plan guidelines.
(C) NMFS concurs in writing with the state finding.
(ii) Until a watershed conservation plan is approved under
paragraph (b)(8)(i) of this section, or until 2 years after publication
of the final rule in the Federal Register, whichever occurs first, take
prohibitions shall not apply to the following habitat restoration
activities if any in-water work is consistent with state in-water work
season guidelines established for fish protection, or if there are
none, limited to summer low-flow season with no work from the start of
adult migration through the end of juvenile outmigration. The work must
be implemented in compliance with the listed conditions and guidance:
(A) Riparian zone planting or fencing. Conditions include no in-
water work; no sediment runoff to stream; native vegetation only; fence
placement in Oregon consistent with standards in the Oregon Aquatic
Habitat Restoration and Enhancement Guide (1999).
(B) Livestock water development off-channel. No modification of bed
or banks; no in-water structures except minimum necessary to provide
source for off-channel watering; no sediment runoff to stream;
diversion adequately screened; diversion in accord with state law and
has not more than de minimus impacts on flows that are critical to
fish; diversion quantity shall never exceed 10 percent of current flow
at any moment, nor reduce any established instream flows.
(C) Large wood (LW) placement. Conditions: Does not apply to LW
placement associated with basal area credit in Oregon. No heavy
equipment allowed in stream. Wood placement projects should rely on the
size of wood for stability and may not use permanent anchoring
including rebar or cabling (these would require section 7 consultation
or a section 10 permit)(biodegradable manila/sisal rope may be used for
temporary stabilization). Wood should be at least two times the
bankfull stream width (1.5 times the bankfull width for wood with
rootwad attached) and meet diameter requirements and stream size and
slope requirements outlined in A Guide to Placing Large Wood in
Streams, Oregon Department of Forestry and Department of Fish and
Wildlife (1995). LW placement must be either associated with an intact,
well-vegetated riparian area which is not yet mature enough to provide
LW; or accompanied by a riparian revegetation project adjacent or
upstream that will provide LW when mature. Placement of boulders only
where human activity has created a bedrock stream situation not natural
to that stream system, where the stream segment would normally be
expected to have boulders, and where lack of boulder structure is a
major contributing factor to the decline of the stream fisheries in the
reach. Boulder placement projects within this exception must rely on
size of boulder for stability, not on any artificial cabling or other
devices. See applicable guidance in Oregon Aquatic Habitat Restoration
and Enhancement Guide (1999).
(D) Correcting road/stream crossings, including culverts, to allow
or improve fish passage. See WDFW's Fish Passage Design at Road
Culverts, March 3, 1999; Oregon Road/Stream Crossing Restoration Guide:
Spring 1999; and NMFS Southwest Region Culvert Policy (1999).
[[Page 73504]]
(E) Repair, maintenance, upgrade or decommissioning of roads in
danger of failure. All work to be done in dry season; prevent any
sediment input into streams. In California, follow applicable guidance
in Weaver. W.E. and D.K. Hagens Handbook for Forest and Ranch Roads, A
guide for planning, designing, constructing, reconstructing,
maintaining, and closing wildland roads (June, 1994).
(F) Salmonid carcass placement. Carcass placement should be
considered only where numbers of spawners are substantially below
historic levels. Follow applicable guidelines in Oregon Aquatic Habitat
Restoration and Enhancement Guide (1999), including assuring that the
proposed source of hatchery carcasses is from the same watershed or
river basin as the proposed placement location. To prevent introduction
of diseases from hatcheries, such as Bacterial Kidney Disease,
carcasses must be approved for placement by a state fisheries fish
pathologist.
(iii) ``Habitat restoration activity'' is defined as an activity
whose primary purpose is to restore natural aquatic or riparian habitat
conditions or processes. ``Primary purpose'' means the activity would
not be undertaken but for its restoration purpose.
(iv) Prior to approving watershed conservation plan guidelines
under paragraph (7)(i) of this section, NMFS will publish notification
in the Federal Register announcing the availability of the draft
guidelines for public review and comment. Such an announcement will
provide for a comment period on the draft guidelines of not less than
30 days.
(v) NMFS approval of a plan shall be a written approval by NMFS'
Northwest or Southwest Region Regional Administrator, as appropriate.
(vi) On a regular basis, NMFS will evaluate the effectiveness of a
state's watershed plan guidelines in assuring plans that protect a
level salmonid productivity commensurate with conservation of the
listed salmonids. If insufficient, NMFS will identify ways in which the
guidelines or program needs to be altered or strengthened. If the state
does not make changes to respond adequately to the new information,
NMFS will publish notification in the Federal Register announcing its
intention to impose take prohibitions on activities associated with
that program. Such an announcement will provide for a comment period of
not less than 30 days, after which NMFS will make a final determination
whether to subject the activities to all section 9 take prohibitions.
(vii) Before this regulation becomes final, the Director of the
Federal Register must approve the incorporation by reference of each of
the state guidance documents listed in this habitat restoration limit
on the take prohibitions in accordance with U.S.C.552(a) and 1 CFR part
51. The documents are: Oregon Aquatic Habitat Restoration and
Enhancement Guide (1999; A Guide to Placing Large Wood in Streams,
Oregon Department of Forestry and Department of Fish and Wildlife
(1995); WDFW's Fish Passage Design at Road Culverts, March 3, 1999; and
Oregon Road/Stream Crossing Restoration Guide; Spring 1999. Copies of
the documents may be obtained on request to NMFS, Protected Resources
Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-2737, or
NMFS, Office of Protected Resources, 1315 East-West Highway, Silver
Spring, MD 20910.
(9) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(9), (a)(14), and (a)(15) do not apply to the physical diversion of
water from a stream or lake, provided that:
(i) NMFS' engineering staff has agreed in writing that the
diversion facility is screened, maintained and operated in compliance
with Juvenile Fish Screen Criteria, National Marine Fisheries Service,
Northwest Region, Revised February 16, 1995, with Addendum of May 9,
1996, or in California with NMFS' Southwest Region ``Fish Screening
Criteria for Anadromous Salmonids, January 1997'' or any subsequent
revision. Before this regulation becomes final, the Director of the
Federal Register must approve this incorporation by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained on request to NMFS, Protected Resources Division, 525 NE
Oregon St., Suite 500, Portland, OR 97232-2737, or NMFS, Office of
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910.
(ii) The owner or manager of the diversion will allow any NMFS
engineer, biologist or Authorized officer access to the diversion
facility for purposes of inspection and determination of continued
compliance with the criteria.
(iii) This limit on the prohibitions of paragraph (a) of this
section does not encompass any impacts of reduced flows resulting from
the diversion, or caused during installation of the diversion device.
These impacts remain subject to the prohibition on take of listed
salmonids.
(10) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(7), (a)(8),
(a)(14) and (a)(15) do not apply to routine road maintenance activities
provided that:
(i) The activity results from routine road maintenance activity by
Oregon Department of Transportation, county or city employees that
complies with the Oregon Department of Transportation's Maintenance
Management System Water Quality and Habitat Guide (June, 1999). Before
this regulation becomes final, the Director of the Federal Register
must approve this incorporation by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained on request to
NMFS, Protected Resources Division, 525 NE Oregon St., Suite 500,
Portland, OR 97232-2737, or NMFS, Office of Protected Resources, 1315
East-West Highway, Silver Spring, MD 20910.
(ii) Neither pesticide and herbicide spraying nor ODOT dust
abatement are included within this exception, even if in accord with
the state's guidance.
(iii) Prior to implementing any changes to the 1999 Guide the
Oregon Department of Transportation will provide NMFS a copy of the
proposed change for review and approval as within this exception.
(iv) Prior to approving any change in the 1999 Guide, NMFS will
publish notification in the Federal Register announcing the
availability of the draft changes for public review and comment. Such
an announcement will provide for a comment period on the draft changes
of not less than 30 days.
(v) Any city or a county in Oregon desiring its routine road
maintenance activities to be within this exception first enters a
memorandum of agreement with NMFS committing to apply the management
practices in the guide, detailing how it will assure adequate training,
tracking, and reporting, and describing in detail any dust abatement
practices it requests to be covered.
(vi) On a regular basis, NMFS will evaluate the effectiveness of
the program in protecting and achieving habitat function commensurate
with conservation of the listed salmonids. If it is not, NMFS will
identify ways in which the program needs to be altered or strengthened.
Changes may be required if the program is not protecting desired
habitat functions, or where even with the habitat characteristics and
functions originally targeted, habitat is not supporting population
productivity levels needed to conserve the ESU. If ODOT does not make
changes to respond adequately to the new information, NMFS will publish
[[Page 73505]]
notification in the Federal Register announcing its intention to impose
take prohibitions on activities associated with the program. Such an
announcement will provide for a comment period of not less than 30
days, after which NMFS will make a final determination whether to
subject the activities to all section 9 take prohibitions.
(vii) NMFS' approval of city or county programs following the ODOT
program, or of any amendments, shall be a written approval by NMFS'
Northwest or Southwest Region Regional Administrator, as appropriate.
(11) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(7), (a)(8),
(a)(14), and (a)(15) do not apply to activities within the City of
Portland, Oregon's Parks and Recreation Department's (PP&R) Pest
Management Program (March, 1997), including its Waterways Pest
Management Policy dated April 4, 1999 provided that:
(i) Use of only the following chemicals is included within this
limit on the take prohibitions: Glyphosphate products, Garlon 3A,
Surfactant R-11, Napropamide, Cutrine Plus, and Aquashade.
(ii) Any chemical use is initiated in accord with the priorities
and decision processes of the Department's Pest Management policy
(March 27, 1997).
(iii) Any chemical use within a 25 ft (7.5 m) buffer complies with
the buffer application constraints contained in PP&R' Waterways Pest
Management Policy, (April 4, 1999).
(iv) Portland Parks and Recreation Department will regularly assess
whether monitoring information, new scientific studies, or new
techniques cause it to amend the program or change the list of
chemicals covered by this limit on the take prohibitions. Before NMFS
approves any change to qualify as within this limit on the take
prohibitions, NMFS will publish notification in the Federal Register
providing a comment period of not less than 30 days for public review
and comment on the proposed changes.
(v) On a regular basis, NMFS will evaluate the effectiveness of the
program in protecting and achieving habitat function commensurate with
conservation of the listed salmonids. If it is not, NMFS will identify
ways in which the program needs to be altered or strengthened. Changes
may be required if the program is not protecting desired habitat
functions, or where even with the habitat characteristics and functions
originally targeted, habitat is not supporting population productivity
levels needed to conserve the ESU. If PP&R does not make changes to
respond adequately to the new information, NMFS will publish
notification in the Federal Register announcing its intention to impose
take prohibitions on activities associated with the program. Such an
announcement will provide for a comment period of not less than 30
days, after which NMFS will make a final determination whether to
subject the activities to all section 9 take prohibitions.
(vi) NMFS' approval of amendments shall be a written approval by
NMFS Northwest Regional Administrator. Before this regulation becomes
final, the Director of the Federal Register must approve the
incorporation by reference of Portland's Parks and Recreation
Department's Waterways Pest Management Program (March, 1997), including
its Waterways Pest Management Policy dated April 4, 1999, in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of those documents may
be obtained on request to NMFS, Protected Resources Division, 525 NE
Oregon St., Suite 500, Portland, OR 97232-2737, or NMFS, Office of
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910.
(12) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(9), (a)(14), and (a)(15) do not apply to urban development
activities provided that:
(i) Such development occurs pursuant to city or county ordinances
that NMFS has agreed in writing are adequately protective, or within
the jurisdiction of the Metro regional government in Oregon, with
ordinances that Metro has found comply with an Urban Growth Management
Functional Plan (Functional Plan) that NMFS has agreed in writing are
adequately protective. For NMFS to find ordinances or the Functional
Plan adequate, they must address the following issues in sufficient
detail and in a manner that assures that urban developments will
contribute to conserving listed salmonids:
(A) Avoid inappropriate areas such as unstable slopes, wetlands,
areas of high habitat value, and similarly constrained sites.
(B) Avoid stormwater discharge impacts to water quality and
quantity, or to the hydrograph of the watershed.
(C) Require adequate riparian buffers around all perennial and
intermittent streams, lakes or wetlands.
(D) Avoid stream crossings by roads wherever possible, and where
one must be provided, minimize impacts through choice of mode, sizing,
placement.
(E) Protect historic stream meander patterns and channel migration
zones; avoid hardening of stream banks.
(F) Protect wetlands and wetland functions.
(G) Preserve the hydrologic capacity of any intermittent or
permanent stream to pass peak flows.
(H) Landscape to reduce need for watering and application of
herbicides, pesticides and fertilizer.
(I) Prevent erosion and sediment run-off during construction.
(J) Assure that water supply demands for the new development can be
met without impacting flows needed for threatened salmonids either
directly or through groundwater withdrawals, and that any new water
diversions are positioned and screened in a way that prevents injury or
death of salmonids.
(K) Provide all necessary enforcement, funding, reporting, and
implementation mechanisms.
(L) The development complies with all other state and Federal
environmental or natural resource laws and permits.
(ii) The city, county or Metro will provide NMFS with annual
reports regarding implementation and effectiveness of the ordinances,
including any water quality monitoring information the jurisdiction has
available, an aerial photo (or some other graphic display) of each
urban development or urban expansion area at sufficient detail to
demonstrate the width and vegetative condition of riparian set-backs,
success of stormwater retention and other techniques; and a summary of
any flood damage, maintenance problems, or other issues.
(iii) Prior to determining that city or county ordinances or
Metro's Functional Plan are adequate, NMFS will publish notification in
the Federal Register announcing the availability of the ordinances or
Functional Plans for public review and comment. The comment period will
be not less than 30 days.
(iv) If new information indicates need to modify ordinances or
Metro's Functional Plan that NMFS has previously found adequate, the
city, county or Metro will work with NMFS to draft appropriate
amendments and NMFS will use the processes of paragraph (b)(12)(iii) to
determine whether the modified ordinances or Functional Plan are
adequate. If at any time NMFS determines that compliance problems or
new information show that the ordinances or guidelines are not
achieving desired habitat functions, or where even with the habitat
characteristics and functions originally
[[Page 73506]]
targeted, habitat is not supporting population productivity levels
needed to conserve the ESU, NMFS will notify the jurisdiction. If the
jurisdiction does not make changes to respond adequately to the new
information, NMFS will publish notification in the Federal Register
announcing its intention to impose take prohibitions on activities
associated with that program. Such an announcement will provide for a
comment period of not less than 30 days, after which NMFS will make a
final determination whether to subject the activities to all section 9
take prohibitions.
(v) NMFS approval of ordinances shall be a written approval by NMFS
Northwest or Southwest Region Regional Administrator, as appropriate.
(13) The prohibitions of paragraph (a) of this section relating to
threatened salmonids listed in Sec. 223.102 (a)(7) (a)(8), and (a)(15)
do not apply to non-federal forest management activities conducted in
the State of Washington provided that:
(i) The action is in compliance with forest practice regulations
implemented by the Washington Forest Practices Board that NMFS has
found are at least as protective of habitat functions as are the
regulatory elements of the Forests and Fish Report dated April 29,
1999, and submitted to the Forest Practices Board by a consortium of
landowners, tribes, and state and Federal agencies. Before this
regulation becomes final, the Director of the Federal Register must
approve this incorporation by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies of the report may be obtained on
request to NMFS, Protected Resources Division, 525 NE Oregon St., Suite
500, Portland, OR 97232-2737, or NMFS, Office of Protected Resources,
1315 East-West Highway, Silver Spring, MD 20910.
(ii) All other elements of the Forests and Fish Report are being
implemented.
(iii) Actions involving use of herbicides, pesticides or fungicides
are not included within this exception.
(iv) Actions taken under alternate plans are not within this limit
on the take prohibitions.
(v) Prior to determining that regulations adopted by the Forest
Practice Board are at least as protective as the elements of the
Forests and Fish Report, NMFS will publish notification in the Federal
Register announcing the availability of the report and regulations for
public review and comment.
(vi) On a regular basis, NMFS will evaluate the effectiveness of
the program in protecting and achieving habitat function commensurate
with conservation of the listed salmonids. If it is not adequate, NMFS
will identify ways in which the program needs to be altered or
strengthened. Changes may be required if the program is not protecting
desired habitat functions, or where even with the habitat
characteristics and functions originally targeted, habitat is not
supporting population productivity levels needed to conserve the ESU.
If Washington does not make changes to respond adequately to the new
information, NMFS will publish notification in the Federal Register
announcing its intention to impose take prohibitions on activities
associated with the program. Such an announcement will provide for a
comment period of not less than 30 days, after which NMFS will make a
final determination whether to subject the activities to all ESA
section 9 take prohibitions.
(vii) NMFS approval of a regulations shall be a written approval by
NMFS Northwest or Southwest Regional Administrator, as appropriate.
[FR Doc. 99-33689 Filed 12-23-99; 2:52 pm]
BILLING CODE 3510-22-F
