03-6325. Notice of Intent to Prepare a Draft Environmental Impact Statement for Federal Actions Under the Endangered Species Act Related to the State of Washington Forest Practices Rules

AGENCY:

National Marine Fisheries Service (NOAA Fisheries), National Oceanic and Atmospheric Administration (NOAA), Commerce.U.S. Fish and Wildlife Service (FWS), Department of the Interior.

ACTION:

Notice of Intent to Prepare an Environmental Impact Statement.

SUMMARY:

Notice is hereby given pursuant to the National Environmental Policy Act, as amended (NEPA), that NOAA Fisheries and FWS (known hereafter as the Services) intend to gather information necessary to prepare a Draft Environmental Impact Statement (DEIS) related to anticipated applications from the State of Washington (State) for take authorization or a take limit under the Endangered Species Act of 1973, as amended (ESA). Washington State has entered into discussions with the Services in anticipation of submitting an application for take authorization pursuant to the ESA (see Background Section for specific sections) for the Washington State Forest Practices Rules, regulating forest management activities on non-Federal forest lands in the state of Washington.. Both Services have listed threatened and endangered species in the State that are likely to be affected by this action. The species are identified below in SUPPLEMENTARY INFORMATION and in the “Covered Resources” section of Appendix A and Schedule H-1 of the Forests and Fish Report, April 1999, available at http:// www.wa.gov/​ dnr/ htdocs/ forestpractices/ rules/ forestsandfish or by calling one of the contacts listed below in ADDRESSES.

The Services are providing this notice: (1) to advise other agencies and the public of their intent to prepare a DEIS on the State application(s); and (2) to obtain suggestions and information on the scope of issues to include in the DEIS.

DATES:

Written scoping comments for the DEIS from all interested parties must be received no later than 5 p.m. Pacific time on April 16, 2003. Interested parties may contact the Services for more information at the addresses and phone numbers listed below. Four public scoping workshops will be held in 2003. Each meeting will begin with a one-hour open house to accommodate informal discussion and questions; the presentation portion of the meeting will begin at 6 p.m.

The meeting dates and times are:

1. March 18, 2003, 5 - 8 p.m., Tacoma, WA.

2. March 20, 2003, 5 - 8 p.m., Port Angeles, WA.

3. March 25, 2003, 5 - 8 p.m., Spokane, WA.

4. March 26, 2003, 5 - 8 p.m., Ellensburg, WA.

ADDRESSES:

Written comments and requests for information should be sent to Craig Hansen, U.S. Fish and Wildlife Service, 510 Desmond Drive, S.E., Suite 102, Lacey, WA 98503-1273, telephone [phone], facsimile [phone]; or Steve Keller, NOAA Fisheries, 510 Desmond Drive, S.E., Suite 103, Lacey, WA 98503-1273, telephone [phone], facsimile [phone]. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above addresses.

The meeting locations are:

1. Tacoma, Tacoma Sheraton Hotel, 1328 Broadway Plaza, Tacoma, WA.

2. Port Angeles, Red Lion Hotel, 221 North Lincoln, Port Angeles, WA.

3. Spokane, Red Lion Hotel at the Park, 303 W. North River Drive, Spokane, WA.

4. Ellensburg, Grupe Center at Central Washington University, 400 East 8th Avenue, Ellensburg, WA.

FOR FURTHER INFORMATION CONTACT:

Steve Keller, [phone].

SUPPLEMENTARY INFORMATION:

Species Listed in this Notice

NMFS listed species potentially addressed in this action include Ozette Lake sockeye salmon (Oncorhynchus nerka), Snake River sockeye salmon (O. nerka), Puget Sound chinook salmon (O. tshawytscha), Lower Columbia River chinook salmon (O. tshawytscha), Upper Columbia River spring-run chinook salmon (O. tshawytscha), Snake River spring/summer chinook salmon (O. tshawytscha), Snake River fall chinook salmon (O. tshawytscha) Lower Columbia River steelhead (O. mykiss), Middle Columbia River steelhead (O. mykiss), Upper Columbia River steelhead (O. mykiss); Snake River steelhead (O. mykiss), Columbia River chum salmon (O. keta), and Hood Canal summer-run chum salmon (O. keta).

Refer to the following website for NMFS listing status and protective regulations: http://www.nwr.noaa.gov/​1salmon/​salmesa/​index/​htm

FWS listed species potentially addressed in this action include bull trout (Salvelinus confluentus) and any or all unlisted Washington native fish and six stream breeding amphibians.

Background

NEPA requires Federal agencies to conduct an environmental analysis of their proposed actions to determine if the actions may affect the human environment. The Services expect to take action on ESA section 10(a)(1)(B) and/or 4(d)Limit submittals expected from the State. Therefore the Services are seeking public input on the scope of the required NEPA analysis, including the range of reasonable alternatives and associated impacts of any alternatives.

Section 9 of the ESA and implementing regulations prohibit the “taking” of a species listed as endangered or threatened. The term take is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)). Harm is defined by the FWS to include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering (50CFR17.3). NOAA Fisheries' definition of harm includes significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, spawning, migrating, rearing, and sheltering (64 FR 60727, November 8, 1999).

The Services may promulgate rules under section 4(d) of the ESA establishing specific take prohibitions for threatened species that the Services determine to be consistent with the conservation needs of threatened species. Section 10(a)(1)(B) of the ESA provides a mechanism by which both Services may permit take through the issuance of an Incidental Take Permit (ITP). An ITP may be issued for take that could occur incidental to otherwise lawful activities, provided all permit issuance criteria are met, including the requirement that permit issuance would not appreciably reduce the likelihood of the survival and recovery of the species in the wild. The applicant for an ITP must prepare and submit to the Services for approval, a Habitat Conservation Plan (HCP) containing strategies for minimizing and mitigating the impacts of take associated with the proposed activities to the maximum extent practicable. The applicant must also ensure adequate funding will be provided for the HCP. An HCP and associated ITP could cover the threatened bull trout and salmon, plus any endangered and unlisted species that might be affected by the Washington State Forest Practices Rules. In addition, the “No Surprises” rule assures that the Services will not require the commitment of any additional land, water or financial compensation for HCPs that are being properly implemented throughout the term of the HCP and ITP. It is important to note that section 10 is the only ESA mechanism by which take authorization can be granted to non-Federal landowners for take of endangered species. On July 10, 2000, NOAA Fisheries promulgated and published an ESA section 4(d) rule for threatened salmon and steelhead(65 FR 42422). In addition to establishing take prohibitions, the rule provides that certain specified activities or conservation plans may qualify for a limit from the rule's take prohibitions provided that such activities or programs qualify for one of 13 categories known as “limits”. Limit 13 of this rule applies to forest management in Washington and specifically relates to non-Federal forest management activities that are at least as protective as the elements of the Forests and Fish Report. The Forests and Fish Report is a document that makes recommendations for improving forest management and timber harvest for the benefit of salmon and aquatic and riparian species. The report was prepared collaboratively by a group of stakeholders from private industry, public interest groups, State and Federal Government agencies, and Tribes. NOAA Fisheries has not yet determined whether the State's Forest Practices Rules as revised by the Forests and Fish report comply with this rule.

FWS has not issued a comparable 4(d) rule, but is considering whether to exempt the take of bull trout that may occur through implementation of the Washington State Forest Practices Rules by adopting a 4(d) rule. A FWS 4(d) rule could be structured to exempt take that might occur as a result of implementing the State regulatory program, provided that the program is consistent with the conservation needs of the species. However, a 4(d) rule can only address take of species listed as threatened. The Forests and Fish Report addresses some endangered and unlisted species, as well as threatened species.

Because both threatened and endangered species are likely to be affected and because there are alternative methods for meeting the requirements of the ESA, the State is working with both Services to develop one or more proposals.

State of Washington's Programs and Proposals

The Washington State Forest Practices Board was established in 1975 by the Washington State Legislature under the State Forest Practices Act. By law, the board is charged with establishing rules governing forest management activities on non-Federal forest land in the State in order to protect public resources while maintaining a viable timber industry. Those rules, as embodied in the Washington Administrative Code (Title 222 WAC), specifically consider the effects of various forest practices on fish, wildlife and water quality. The Forest Practices Act also requires the Washington Department of Natural Resources to administer and enforce all board-adopted rules on non-Federal forest land. The board adopts Forest Practices rules pertaining to water quality protection after reaching agreement with the director of the Department of Ecology (Ecology) or the director's designee on the board.

Beginning in late 1996, stakeholders determined additional protections should be developed because of the imminent listing of several salmon species in Washington under the Act, and because new information from watershed analyses and other sources indicated riparian protections in place at that time were not adequate for public resource protection. In response, the participants in a stakeholder negotiation process known as Timber, Fish, and Wildlife (TFW) began working on riparian issues and agreed to negotiate collaboratively in an effort to submit a proposal to the Forest Practices Board. Over the course of the negotiations, representatives from Federal agencies and Washington counties joined the effort, and representatives of environmental interests and some Tribes withdrew from the process. The remaining caucuses continued negotiating and went on to write the Forests and Fish Report (April 1999), which ultimately became the basis for new Forest Practices Rules with increased attention to the needs of salmon and other aquatic and riparian species on forest lands. The groups contributing to the development of the report included Federal agencies (FWS, NOAA Fisheries and Environmental Protection Agency), state agencies (Washington Departments of Natural Resources, Governor's Office, Fish and Wildlife, and Ecology), the Tribes, the Washington State Association of Counties, the Washington Forest Protection Association, and the Washington Farm Forestry Association.

Following publication of the Forests and Fish Report, the Washington State Legislature directed the Forest Practices Board to adopt rules consistent with the Forest and Fish Report. The board conducted an evaluation of the proposal, and alternatives to the proposal, for modifying the Forest Practices Rules. This evaluation included a State Environmental Impact Statement (SEIS), under the Washington State Environmental Policy Act. The State's Final SEIS, entitled “Alternatives for Forest Practices Rules for Aquatic and Riparian Resources” was published in April 2001.

In consideration of this evaluation, the Forest Practices Board adopted new rules in May 2001, which were based on the Forests and Fish Report. Effective July 2001, these new rules cover a wide variety of forest practices and include a new, more functional classification of rivers and streams on non-Federal forest land; improved plans for properly designing, maintaining, and upgrading existing and new forest roads; additional protections for unstable slopes; greater protections for riparian areas intended to maintain properly functioning conditions; a process for adaptive management; and other features.

Washington State has now entered into discussions with the Service's in anticipation of submitting an application for ESA take authorization pursuant to Section 10(a)(1)(B) of the Act, a 4(d) Limit or both for the Washington State Forest Practices Rules, regulating forest management activities on non-Federal forest lands in the state of Washington.

Review Under National Environmental Policy Act

The Services will conduct an environmental review of the application package(s) to be submitted by the State and prepare a Federal DEIS. The DEIS will analyze the proposal, as well as a full range of reasonable alternatives and the associated impacts of each. The Services are in the process of developing alternatives for analysis. Alternatives currently under consideration include: a No Action alternative; an alternative resulting in the issuance of a Section 10 Permit based on an HCP, which includes the full complement of practices endorsed by the Forests and Fish Report; an alternative resulting in NOAA Fisheries determining that the State Forest Practices Rules and non-regulatory elements of the State's program are at least as protective of threatened fish as the Forests and Fish Report, thus qualifying the program under Limit 13 of the July, 2000 4(d) rule; an alternative that includes the adoption of a similar 4(d) rule by the FWS; and alternatives involving an ESA incidental take permit or 4(d) rules associated with measures that are either more or less protective than the complete Forests and Fish Report package. Additional alternatives may be developed based on input received from this and future public comment opportunities during the development of the DEIS.

Comments and suggestions are invited from all interested parties to ensure the full range of alternatives related to this proposed action and all significant issues are identified. The Services request that comments be as specific as possible. Comments should include information, issues, and concerns regarding: the direct, indirect, and cumulative effects that implementation of the proposal could have on endangered and threatened species or their habitats; other possible alternatives; potential adaptive management and/or monitoring provisions; funding issues; baseline environmental conditions; other plans or projects that might be relevant to this project; and minimization and mitigation measures. In addition to considering impacts to threatened and endangered species and their habitats, the DEIS will analyze the effects the alternatives would cause to other components of the human environment. As a result comments specific to the following are also requested: air quality; water quality and quantity; geology and soils; cultural resources; social resources; economic resources; and environmental justice.

This notice is provided pursuant to NEPA regulations (40 CFR 1506.6). Comments or questions should be directed to the Services at the addresses or telephone numbers provided above. All comments and materials received, including names and addresses, will become part of the administrative record and may be released to the public.

This environmental review by the Services will be conducted in accordance with the requirements of the NEPA, NEPA Regulations (40 CFR 1500-1508), other appropriate Federal laws and regulations, and policies and procedures of the Services for compliance with those regulations.

Dated: February 28, 2003.

Anne Badgley,

Regional Director, Fish and Wildlife Service, Region 1, Portland, Oregon.

Dated: March 11, 2003.

Barbara Schroeder,

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