[Federal Register Volume 65, Number 132 (Monday, July 10, 2000)]
[Rules and Regulations]
[Pages 42422-42481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16933]
[[Page 42421]]
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Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
50 CFR Part 223
Endangered and Threatened Species; Salmon and Steelhead; Final Rules
Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules
and Regulations
[[Page 42422]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 991207324-0148-02; I.D. 081699C]
RIN 0648-AK94
Endangered and Threatened Species; Final Rule Governing Take of
14 Threatened Salmon and Steelhead Evolutionarily Significant Units
(ESUs)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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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. NMFS now issues a final ESA 4(d) rule adopting
regulations necessary and advisable to conserve fourteen listed
threatened salmonid ESUs. This final rule applies the prohibitions
enumerated in section 9(a)(1) of the ESA to one coho salmon ESU, three
chinook salmon ESUs, two chum salmon ESUs, one sockeye salmon ESU and
seven steelhead ESUs. NMFS does not find it necessary and advisable to
apply the take prohibitions described in section 9(a)(1)(B) and
9(a)(1)(C) to specified categories of activities that contribute to
conserving listed salmonids or are governed by a program that
adequately limits impacts on listed salmonids. This final rule includes
13 such limits on the application of the ESA section 9(a)(1) take
prohibitions.
DATES: Effective September 8, 2000. Applicability dates: In
Sec. 223.203 for the Snake River Basin, Lower Columbia River, Middle
Columbia River, Upper Willamette River, Central Valley, California,
Central California Coast, and South-Central California Coast steelhead
ESUs, this final rule is applicable September 8, 2000. In Sec. 223.203
for the Snake River spring/summer, Snake River fall, Puget Sound, Lower
Columbia River and Upper Willamette River chinook, Oregon Coast,
Central California Coast, and South/Central California Coast coho, Hood
Canal summer-run and Columbia River chum, and Ozette Lake sockeye ESUs,
this final rule is applicable January 8, 2001.
ADDRESSES: Branch Chief, NMFS, Northwest Region, Protected Resources
Division, 525 NE. Oregon St., Suite 500, Portland, OR 97232-2737;
Regional Administrator, Northwest Region, 7600 Sand Point Way, NE, BIN
C15700, Building 1, Seattle, WA 98115-0070; Assistant Regional
Administrator, Protected Resources Division, NMFS, Southwest Region,
501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; Regional
Administrator, NMFS, Southwest Region, 501 West Ocean Blvd., Long
Beach, CA 90802-4213; Salmon Coordinator, Office of Protected
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Garth Griffin at 503-231-2005 or Craig
Wingert at 562-980-4021.
Electronic Access
Reference materials regarding this rule can also be obtained from
the internet at www.nwr.noaa.gov.
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 (Onchorynchus mykiss) 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 final
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. On August 10, 1998 (63 FR 42587), NMFS, on
behalf of the Secretary, published a final rule listing the Oregon
Coast (OC) ESU of coho salmon (Oncorhynchus kisutch, or O. kisutch) as
threatened. By a final rule published on March 24, 1999 (64 FR 14308),
NMFS listed as threatened the Puget Sound (PS), Lower Columbia River
(LCR) and Upper Willamette River (UWR) ESUs of west coast chinook
salmon (Oncorhynchus tshawytscha, or O. tshawytscha) in Washington and
Oregon. By a final rule published on March 25, 1999 (64 FR 14508), NMFS
listed as threatened the Hood Canal Summer-run (HCS) and Columbia River
(CR) chum salmon ESUs (Oncorhynchus keta, or O. keta) in Washington and
Oregon. By a final rule published on March 25, 1999 (64 FR 14528), NMFS
listed as threatened the Ozette Lake ESU of sockeye salmon
(Oncorhynchus nerka, or O. nerka) in Washington. Those final rule
listing notifications describe the background of the listing actions
and provide a summary of NMFS' conclusions regarding the status of the
threatened coho, chinook, chum, and sockeye salmon 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)(1). Those section 9(a)(1) 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, capture, 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, without written
authorization. It is also illegal under ESA section 9(a)(1) 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 section 9(a)(1) 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 threatened species are likely to
become endangered species within the foreseeable future. Their current
threatened status cannot be explained by natural cycles in ocean and
weather conditions. NMFS has concluded that threatened chinook, coho,
chum, sockeye, and steelhead are at risk of extinction primarily
because their populations have been reduced by human ``take''. West
Coast populations of these salmonids have been depleted by take
resulting from harvest, past and ongoing destruction of freshwater and
estuarine habitats, hydropower development, hatchery practices, and
other causes. ``Factors for Decline: A Supplement to the Notice of
Determination for West Coast Steelhead'' (NMFS, 1996) and ``Factors
Contributing to the Decline of Chinook Salmon: An Addendum to the 1996
West Coast Steelhead Factors for Decline Report'' (NMFS, 1998)
[[Page 42423]]
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. It is
necessary and advisable then to apply the ESA section 9(a)(1)
prohibitions to these listed ESUs, in order to provide for their
conservation.
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. 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 these 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 threatened
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 threatened salmonids. When such a program provides
sufficient conservation for listed salmonids, NMFS does not find it
necessary and advisable to apply ESA section 9(a)(1) take prohibitions
to activities governed by those programs. In those circumstances (see
descriptions to follow), additional Federal ESA regulation through
imposing the take prohibitions is not necessary and advisable because
it would not 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 section 9(a)(1) prohibitions, through the
program itself and by demonstrating to similarly situated entities that
practical and realistic salmonid protection measures exist. NMFS will
monitor the activities under a program where NMFS has granted a
``limit'' on the application of the ESA take prohibitions for
unexpected harm, as well as for harmful activities resulting in take
that do not obey the requirements of the limit and, therefore, are
subject to NMFS ESA enforcement. 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 Final Regulation
NMFS had previously proposed protective regulations for three of
the salmonid ESUs subject to this final rule. When NMFS first proposed
the Oregon Coast coho for listing (60 FR 38026, July 25, 1995), it
proposed to apply the prohibitions of ESA section 9(a)(1) to that ESU.
When NMFS first proposed the LCR and SRB steelhead ESUs for listing (61
FR 41541, August 9, 1996), it also proposed to apply the prohibitions
of ESA section 9(a)(1) to those ESUs. These proposed protective
regulations, however, were never finalized. NMFS has since proposed
application of the section 9(a)(1) prohibitions for seven listed
steelhead ESUs (64 FR 73479, December 30, 1999), and seven listed
salmonid ESUs (65 FR 170, January 3, 2000). This final rule applies the
prohibitions of ESA section 9(a)(1) to all 14 listed ESUs.
NMFS concludes that the prohibitions generally applicable for
endangered species are necessary and advisable for conservation of
these listed ESUs. Additionally, NMFS determines that section 9(a)(1)
prohibitions on listed salmonids in the 14 listed ESUs need not be
applied when it results from a specified subset of activities described
herein. These are activities that are conducted in a way that
contributes to conserving the listed ESUs and where NMFS determines
that added protection through Federal regulation is not necessary and
advisable for conservation of an ESU. Therefore, NMFS will now apply
ESA section 9(a)(1) prohibitions to these 14 threatened salmonid ESUs,
but will not apply the take prohibitions to the 13 programs described
in this document 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(a)(1)(b) permit, or be required to
satisfy ESA section 7 consultation if Federal funding, management or
approval is involved. This final rule does not impose restrictions
beyond those applied in other sections of the ESA, but provides another
option beyond the section 7 and 10 tools to authorize incidental take.
Working with state and local jurisdictions and other resource
managers, NMFS has identified 13 programs and criteria for future
programs for which it is not necessary and advisable to impose ESA
section 9(a)(1) prohibitions because they contribute to conserving the
ESU. Under specified conditions and in appropriate geographic areas,
these programs and criteria include: (1) activities conducted in accord
with ESA incidental take authorization; (2) ongoing scientific research
activities, for a period of 6 months from the publication of this final
rule; (3) emergency actions related to injured, stranded, or dead
salmonids; (4) fishery management activities; (5) hatchery and genetic
management programs; (6) activities in compliance with joint tribal/
state plans developed within United States (U.S.) v. Washington or U.S.
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) routine
road maintenance activities; (11) certain park pest management
activities; (12) certain municipal, residential, commercial, and
industrial (MRCI) development and redevelopment activities; and (13)
forest management activities on state and private lands within the
State of Washington. The language which follows describes each limit.
These are programs or criteria for future programs where NMFS will
limit the application of the section 9(a)(1) prohibitions. More
comprehensive descriptions of each limit and discussions regarding the
scientific basis for this final rule are contained in ``A Citizen's
Guide to the 4(d) Rule'' (NMFS, 2000). In the future, NMFS anticipates
adding new limits for more activities that are deemed necessary and
sufficient for the conservation of the species.
NMFS emphasizes that these limits are not prescriptive regulations.
The fact of not being within a limit does not mean that a particular
action necessarily violates the ESA or this regulation. Many activities
do not affect these species, and thus, need not be included in the 13
limits listed earlier. The limits describe circumstances in which an
entity or actor can be certain it is not at risk of violating the take
prohibitions or of consequent enforcement actions, because the take
prohibitions would not apply to programs or activities within those
limits. Jurisdictions, entities, and individuals are encouraged to
evaluate their practices and activities to determine the likelihood of
take occurring. NMFS can provide ESA coverage through section 4(d)
rules, section 10 research and enhancement permits, or incidental take
permits; or through section 7 consultations with Federal agencies. If
take is likely to occur, then the jurisdiction, entity or individual
should modify its practices to avoid take of a threatened species or
seek protection from potential ESA
[[Page 42424]]
liability through section 7, section 10, or section 4(d) processes.
Jurisdictions, entities, and individuals are not required to seek
inclusion in a section 4(d) limit from NMFS. In order to reduce its
liability, a jurisdiction, entity, or individual may also informally
comply with a limit by choosing to modify its programs to be consistent
with the evaluation considerations described in an individual limit.
Finally, a jurisdiction, entity, or individual may seek to qualify its
plans or ordinances for inclusion in a limit by obtaining the 4(d)
limit authorization from the appropriate NMFS Regional Administrator
(see ADDRESSES).
NMFS wishes to continue to work collaboratively with all affected
jurisdictions, entities, and individuals to recognize management
programs that conserve and meet the biological requirements of
salmonids, and to strengthen other programs toward conservation of
listed salmonids. This final rule may be amended to add new limits on
the take prohibitions, or to amend or delete limits as circumstances
warrant.
State, county and local efforts such as Clark, Cowlitz, Kitsap, the
Puget Sound Tri-County Initiative in Washington state; and the City of
Portland and Clackamas County in Oregon are working with NMFS to make
their ordinances and practices fish friendly and to be adopted in
future 4(d) rulemaking. NMFS also acknowledges the important progress
being made by Metro, the directly-elected regional government in
Portland, Oregon. NMFS is enthusiastic about Metro's current planning
efforts and encourages its progress in regional planning to address
salmonid conservation.
NMFS acknowledges, and is participating in, the State of
Washington's Agricultural, Fish, and Water negotiation process
currently underway in Washington State. The process currently underway
is intended to address the requirements of the ESA and the Clean Water
Act (CWA). The negotiations are designed to address agricultural
practices and processes including but not limited to: Field Office
Technical Guides (FOTGs), Comprehensive Irrigation District Management
Plans (CIDMP), Ditch Maintenance Plans (DMPs) and Pesticide Management
as needed to comply with ESA and CWA. It is anticipated that completed
FOTGs, CIDMPs, DMPs, and Pesticide Management, if acceptable to NMFS,
will be included in future ESA 4(d) rulemaking.
NMFS strongly encourages comprehensive conservation planning for
programs at the state level. State level conservation programs can be
one of the most efficient methods to implement effective conservation
practices across the board and achieve comprehensive benefits for
listed fish and their habitats. Other examples of these state-based
conservation programs include the completed forestry agreement in
Washington state; ongoing reviews of Oregon and California forestry
practices; and development of coastal states' shoreline management
programs. NMFS is working with Washington State Department of Ecology
on development of a model shoreline program. Alternatively, a local
jurisdiction seeks inclusion in a limitation of the take prohibition by
adopting this model program, NMFS expects to address the potential
``take'' issues associated with the shorelines program through an ESA
section 7 consultation with the National Ocean Service in the coming
months. This may obviate the need for a 4(d) limit for shoreline-
related activities under the authority of the Department of Ecology.
Concurrent with this final rule, NMFS is publishing a final rule
describing a limit on the section 9(a)(1) 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 a threatened ESU (published elsewhere in this Federal
Register issue).
Following is a section entitled ``Notice of Availability'' which
lists seven documents referred to in the regulation. The purpose of
making these documents available to the public is to inform
governmental entities and other interested parties of the technical
components NMFS expects to be addressed in programs submitted for its
review. These technical documents provide guidance to entities as they
consider whether to submit a program for a 4(d) limit. The documents
represent several kinds of guidance, and are not binding regulations
requiring particular actions by any entity or interested party.
For example, NMFS' Viable Salmonid Policy (VSP) paper referenced in
the fishery and harvest management limits provides a framework for
identifying populations and their status as a component of developing
adequate harvest or hatchery management plans. This rule asks that
FMEPs and HGMPs ``utilize the concepts of `viable' and `critical'
salmonid population thresholds, consistent with the concepts contained
in the [VSP paper].'' Thus, state fishery agencies preparing such
programs are put on notice of the technical analysis needed to support
decisions within a program. Similarly, NMFS' Fish Screening Criteria
explicitly recognize that they are general in nature and that site
constraints or particular circumstances may require adjustments in
design, which must be developed with the NMFS staff member, or
authorized officer, to address site specific considerations and
conditions. Finally, research involving electrofishing comes within the
scientific research limit only if conducted in accordance with NMFS'
Guidelines for Electrofishing. The guidelines recognize that other
techniques may be appropriate in particular circumstances, and NMFS can
recognize those as appropriate during the approval process.
Of the state or local documents referenced in the rules, two
(Oregon Department of Transportation's (ODOT) road maintenance program
to govern routine maintenance activities and Portland Parks' integrated
pest management program) are existing programs already being
implemented that NMFS has found adequate and made effective as limits.
Those entities, thus, need no further approval for the programs. Other
jurisdictions may come within the road maintenance limit if they use
the ODOT program or provide other practices found by NMFS to be
equivalent or more protective of salmonids. The State of Washington's
Forests and Fish Report will not trigger a limit until the Washington
Board of Forestry adopts regulations that NMFS finds are at least as
protective as the report. Thus, the report indicates a set of
conditions that will allow NMFS to approve the limit, but recognizes
that the Board may design regulations that are not identical to, but
are at least as protective as, the report language.
In sum, where the rule cites a document, a program's consistency
with the guidance is ``sufficient'' to demonstrate that the program
meets the particular purpose for which the guidance is cited. However,
the entity or individual wishing a program to be accepted as within a
particular limit has the latitude to show that its variant or approach
is, in the circumstances where it will apply and affect listed fish,
equivalent or better.
NMFS will continue to review the applicability and technical
content of its own documents as they are used in the future and make
revisions, corrections or additions as needed. NMFS will use the
mechanisms of the rule to take comment on revisions of any of the
referenced state programs. If any of
[[Page 42425]]
these documents is revised and NMFS relies on the revised version to
provide guidance in continued implementation of the rule, NMFS will
publish in the Federal Register a notice of its availability stating
that the revised document is now the one referred to in the specified
223.203(b) subsection.
Notice of Availability
The following is a list of documents cited in the regulatory text
of this final rule. Copies of these documents may be obtained upon
request (see ADDRESSES).
1. Oregon Department of Transportation (ODOT) Maintenance
Management System Water Quality and Habitat Guide (June, 1999).
2. City of Portland, Oregon Parks and Recreation Department Pest
Management Program (March 1997) with Waterways Pest Management Policy
updated December 1, 1999.
3. State of Washington, Forests and Fish Report (April 29, 1999).
4. Guidelines for Electrofishing Waters Containing Salmonids Listed
Under the Endangered Species Act (NMFS, 2000a).
5. Juvenile Fish Screen Criteria, National Marine Fisheries
Service, Northwest Region, Revised February 16, 1995, with Addendum of
May 9, 1996.
6. Fish Screening Criteria for Anadromous Salmonids (January 1997).
7. Viable Salmonid Populations and the Recovery of Evolutionarily
Significant Units. (NMFS, 2000b).
Copies of all references, reports, related documents and ``A
Citizen's Guide to the 4(d) Rule'' (NMFS, 2000) are also available upon
request (see ADDRESSES).
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.
To the extent that actions subject to section 7 consultation are
consistent with a circumstance for which NMFS has limited the take
prohibitions, a letter of concurrence from NMFS will greatly simplify
the consultation process, provided the program is still consistent with
the terms of the limit.
Applicability to Specific ESUs
In the regulatory language in this final rule, the limits on
applicability of the take prohibitions to a given ESU are accomplished
through citation to the Code of Federal Regulations' (CFRs')
enumeration of threatened marine and anadromous species, 50 CFR
223.102. For the convenience of readers of this notice, 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
(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
Summary of Comments in Response to the Proposed Rules
Between January 10, 2000, and February 22, 2000, NMFS held 25
public hearings to solicit comments on the proposed ESA 4(d) rules: 7
in Washington, 8 in Oregon, 3 in Idaho, and 7 in California (64 FR
73479, December 30, 1999; 65 FR 170, January 3, 2000; 65 FR 7346,
February 14, 2000; 65 FR 7819, February 16, 2000). During the 65-day
public comment period, NMFS received 1,146 written comments on the
proposed rules from Federal, state, and local government agencies;
Indian tribes; non-governmental organizations; the scientific
community; and individuals. In addition, numerous individuals provided
oral testimony at the public hearings.
Based on these public hearings and comments, NMFS now issues its
final protective regulations for these 14 salmon and steelhead ESUs.
The preamble section of this rule refers to the prohibitions of ESA
section 9(a)(1). In addition to the commonly referred to take
prohibitions of section 9(a)(1)(B) and 9(a)(1)(C), section 9(a)(1),
also includes prohibitions on the import, export, sale, delivery, or
transport in interstate commerce of endangered species. The public
comments NMFS received almost exclusively focused on the section 9 take
prohibitions. The following comments and responses, therefore, refer to
the ``take'' prohibitions of section 9(a)(1)(B) and 9(a)(1)(C), not to
the other prohibitions described in section 9(a)(1). Accordingly, for
the rest of this preamble and in the regulation, the term
``prohibition'' refers to the prohibition of take within the 13
specified limits.
New information and a summary of comments received in response to
the proposed rules are summarized as follows.
Comments and Responses
Take Guidance
Comment 1: Some commenters stated that a primary focus of the
proposal was to encourage development of local tailor-made measures
that protect salmonids and they requested further guidance on how their
programs could be included in future ESA 4(d) rules.
Response: Credible local initiatives are indeed needed to help save
these species, and guidance on how local programs can be included in
4(d) rules is available in The ESA and Local Governments: Information
on 4(d) Rules, May 7, 1999. In addition, NMFS staff will be available
to offer advice and otherwise help individual jurisdictions and
entities ensure that their actions do not take listed fish.
Comment 2: Some commenters wanted a simplified process (e.g., a
``letter of approval'' from NMFS staff) for including local programs in
future ESA 4(d) rules.
Response: NMFS worked with state and local authorities to identify
several categories of activities where local programs can be certified
to comply with ESA requirements if they meet the conditions described
in the rule. This simplified process would be available for land-use
development activities, water diversion screening, road maintenance,
hatchery operations, fisheries harvest, fisheries related research, and
habitat restoration activities. Other governmental entities are
encouraged to step forward and work with NMFS. First, to ensure that
local programs meet the salmon's biological requirements and the
mandates of the ESA, and second, to streamline the administration of
any program.
Comment 3: A number of commenters stated that the proposed take
guidance was too vague (e.g., guidance in the limit for new urban
density development). Others commented that the guidance was too
prescriptive, and still others stated that the guidance was less
stringent for some categories of activities and more stringent for
others.
Response: To be approved for a limit from ESA take prohibitions, a
program
[[Page 42426]]
must conserve salmon and meet their biological requirements. This
criterion is the same for all programs. These species span the entire
west coast from coastal rainforests to arid inland areas to high
mountain regions nearly a thousand miles from the ocean and, thus,
specific requirements will naturally differ from place to place. Some
jurisdictions have asked for NMFS' help in learning how to avoid or
limit adverse impacts on these species. General guidance is provided in
this rule. This final 4(d) rule addresses concerns about vague guidance
by providing additional specificity and by requiring that once specific
programs designed to meet NMFS' criteria are produced (and before
determining whether they are adequate), NMFS will publish the proposed
program for review and comment.
Comment 4: Some commenters stated that NMFS must wait to apply take
prohibitions until more specific guidance is published on how other
programs can qualify for a limit on the take prohibitions. Others
requested that NMFS delay take prohibitions until many more local
programs were ready to be included in an ESA 4(d) rule, or that NMFS
phase in the take prohibitions as programs qualify for a limit.
Response: These species are, by definition, likely to become
endangered in the foreseeable future and undue delay in protecting them
would likely increase the difficulty and expense of recovering them. At
the same time, NMFS recognizes these rules are novel and complicated
and some time is needed for regulated parties to better understand
them. NMFS has balanced these considerations by adopting a final rule
that puts needed regulations in place within 60 days for the steelhead
ESUs and within 180 days for the salmon ESUs, which allows a reasonable
period before they become effective (6 months).
Comment 5: A few commenters wanted NMFS to grant a grace period
from the take prohibitions to those jurisdictions making good faith
efforts to conserve the species.
Response: The proposed rule already states that while enforcement
may be initiated against activities that take protected salmonids,
NMFS' clear preference is to work with persons or entities to promptly
shape their programs and activities to include credible and reliable
conservation measures.
Comment 6: Some commenters asked NMFS to apply prohibitions against
take to all programs without exception.
Response: Any jurisdiction or individual under United States
authority is subject to the take prohibitions. Jurisdictions or
individuals wanting assurance that an activity they are conducting or
permitting is consistent with ESA requirements can be covered under a
section 7 consultation (if Federal funding, authorization, or
management is involved), seek an ESA section 10 permit, or qualify for
a limit under a 4(d) rule. To qualify for any of these options, the
activity must show that it sufficiently conserves the listed species.
Comment 7: Some commenters wanted NMFS to define the action types
and magnitudes that would constitute illegal take. Others held that the
array of activities described in the proposed rule that are ``likely to
injure or kill listed salmonids'' was overly inclusive and discussed
actions that exceeded NMFS' authority to regulate. Still others
requested that NMFS assert that state and local governments are not
required to use their regulatory authorities to satisfy ESA
requirements.
Response: It is NMFS' policy to increase public awareness of and
identify those activities that would or would not likely injure or kill
a protected species. Take guidance appearing at the end of this
document does just that. It is only possible in this final rule to
describe categories of actions that may have adverse impacts on fish
and describe their consequences (e.g., blocking fish from reaching
their spawning grounds, dewatering incubating eggs, etc.). NMFS
understands that there is considerable interest in knowing as much as
possible about what constitutes ``take'' and changes have been
incorporated in this final rule to accommodate this interest.
Determining whether an individual local program or activity is likely
to injure or kill a protected species will require credible assessments
that take into account local factors and conditions. Regarding the
issue of authority, regulations against killing or injuring protected
species apply to any person subject to the jurisdiction of the United
States (section 9(a)(1) of the ESA). The term ``person'' means an
individual, corporation, partnership, trust, association, or any other
private entity; or any officer, employee, agent, department, or
instrumentality of the Federal Government, of any State, municipality,
or political subdivision of a State, or of any foreign government; and
State, municipality, or political subdivision of a State; or any other
entity subject to the jurisdiction of the United States (ESA section
3(12)).
Comment 8: A few commenters requested that NMFS make clear that
``take'' prohibitions would not be violated unless a protected species
were injured or killed, and that determinations of whether ``take'' is
likely to occur will be handled on a case-by-case basis.
Response: The term ``take'' means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, a listed species or to
attempt to engage in any such conduct (ESA section 3(18)). The term
``harm'' refers to an act that actually kills or injures a protected
species (64 FR 215 (November 8, 1999). Harm can arise from significant
habitat modification or degradation where it actually kills or injures
protected species by significantly impairing essential behavioral
patterns, including breeding, spawning, rearing, migrating, feeding, or
sheltering. After conducting a self- assessment to determine whether an
activity is likely to ``take'' a listed species, persons or entities
may choose to adjust their program to avoid take, or pursue ESA
coverage through a section 10 permit, a section 7 consultation with
Federal agencies, or through a 4(d) rule.
Comment 9: Commenters requested that adequate monitoring and
oversight be required to ensure that programs included in an ESA 4(d)
rule are effective.
Response: A program is incomplete without a mechanism to track its
implementation and effectiveness. NMFS reiterates language in the
proposed rule which states that for any program included in an ESA 4(d)
rule, ``NMFS will evaluate on a regular basis the effectiveness of the
program in protecting and achieving a level of salmonid productivity
and/or habitat function consistent with the conservation of the listed
salmonids.'' If a program does not meet its objectives, NMFS will work
with the relevant jurisdiction to adjust the program accordingly. If
the responsible entity chooses not to adjust the program accordingly,
NMFS will publish notification in the Federal Register and announce
that the program will no longer be free from ESA take prohibitions
because it does not sufficiently conserve listed salmonids.
Comment 10: There were a number of requests for NMFS to grant
limits on the take prohibitions to additional programs. Examples
included, the Natural Resources Conservation Service's FOTGs,
California's Lake and Streambed Alteration Program, Oregon Concrete and
Aggregate Producer's suggestions for a limit focused on Department of
Geology regulation, Washington's Tri-County initiative, and
[[Page 42427]]
The Oregon Plan for Salmon and Watersheds.
Response: The ESA 4(d) rule provides an option for state and other
jurisdictions to assume leadership for species conservation at the
state and local level over and above the conventional tools for
processing state and local conservation planning under the ESA through
section 7 consultations and section 10 permitting. NMFS is assembling
all the Federal, tribal, state, and local programs needed to save
salmonids and has offered to collaborate with any entity interested in
this 4(d) option. NMFS is especially interested in state-level
conservation efforts because state-level programs tailored to meet the
needs of the listed stocks can be a very efficient and comprehensive
method to provide for the conservation of listed stocks and their
habitat. A number of state and local entities have stepped forward to
work with NMFS and we are anxious to work with them. However, limits
that were not outlined in the proposed rule for public comment will
have to be dealt with in a future amendment.
Comment 11: Commenters requested that NMFS clarify that activities
conducted pursuant to an approved state or Federal permit are free from
the ESA section 9 take prohibitions.
Response: Activities conducted pursuant to an approved state or
Federal permit are subject to take prohibitions. Individual programs
can seek relief from any take liability through a section 7
consultation, a section 10 permit process, or a program approved under
a 4(d) limit.
Comment 12: Commenters argued that the nature of some programs
(e.g., road construction, gravel mining, water withdrawals, levee
construction, and certain development) should disqualify them from
consideration for limits on take prohibitions under an ESA 4(d) rule.
Response: Under the proposal, all programs must fulfill the same
standard to be included in an ESA 4(d) rule (i.e., they must conserve
the species and meet their biological requirements). The important
issue here is that threatened salmonids need meaningful, practical, and
reliable conservation measures. Some programs will naturally have more
difficulty meeting that standard than others. The ESA 4(d) rule simply
applies the take prohibitions and allows for the development and
implementation of conservation measures.
Comment 13: Several commenters suggested that the use of pesticides
and herbicides should be considered a resource management tool and,
therefore, be included as a limit by NMFS in the 4(d) rule. Several
commenters argued that the proposed take guidance violates the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) and, thereby,
trespasses unlawfully into Environmental Protection Agency (EPA)
authorities and violates the take exemption provided for FIFRA-
registered pesticides.
Response: NMFS acknowledges that some view the current use of
pesticides as essential to successful commercial crop production on
agricultural lands, certain types of habitat restoration projects, and
dealing with invasive exotic species. NMFS does not currently have
specific information on the potential effects on listed salmonids of
the very large number of pesticide products currently in use.
Accordingly, NMFS is not able to conclude that the otherwise lawful use
of these products is sufficiently benign to warrant an explicit
limitation of the take prohibition in this rule. NMFS, therefore, has
not incorporated such a limit.
For the same reason, NMFS is also unable to make an affirmative
finding that the otherwise-lawful use of these products may cause harm
to listed salmonids in potential violation of this final rule.
NMFS will continue to conduct scientific research into the
potential for adverse effects upon salmonids of a variety of
pesticides. NMFS intends to work closely with EPA and state authorities
which have primary responsibility for ensuring the proper use of these
products under relevant Federal and state regulatory regimes. Should
information come forward to suggest that the otherwise lawful use of a
pesticide harms or injures listed salmonids and might be in violation
of this rule, NMFS anticipates addressing the concern through a section
7 consultation with EPA, NRCS, or United States Fish and Wildlife
Service (FWS) as appropriate, or corresponding discussions with
responsible state authorities. NMFS prefers this approach rather than
use its enforcement authorities against an individual applicator for
the otherwise-lawful use of the pesticide. Similarly, if NMFS, with due
consideration of any more restrictive state requirements for a
pesticide's use, finds that a limitation on the prohibition against
take for the use of selected pesticides is necessary and advisable for
the conservation of listed salmonids, it may amend this rule
accordingly. Through such a programmatic approach, NMFS believes that
it will be able to achieve an orderly and comprehensive analysis of the
use of pesticides and their effects on listed salmonids.
Comment 14: A few commenters argued that ESA Habitat Conservation
Plans (HCPs) should not be free from take prohibitions under a 4(d)
rule.
Response: A section 10 incidental take permit (issued after
analyzing the accompanying habitat conservation plan) authorizes a
specified level of take. Including incidental take permits in the first
limit of this rule is, thus, consistent with the structure and intent
of the ESA.
Comment 15: A few commenters requested that NMFS prescribe
standards (temporary or otherwise) for agricultural activities to be
included in an ESA 4(d) rule.
Response: Different entities (including agricultural interests)
have expressed a strong preference for standards developed at the local
level (not one-size-fits-all standards). The 4(d) rule was written to
foster local interest and support tailor-made programs and NMFS stands
ready to work with any interested entity in forging such standards. On
the issue of agricultural practices in particular, NMFS is working with
a number of agricultural entities to explore conservation practices
which might contribute to the conservation of salmonids and their
habitats, and is hopeful that these discussions will yield further
details on proper conservation practices to help conserve salmon.
Comment 16: A few commenters asked NMFS to work closely with FWS to
clarify each other's roles to establish universal standards that cover
all listed species.
Response: The two services do work closely together on ESA
implementation. For example, NMFS and FWS share identical definitions
of ``harm'' and the proposed rule does state that ``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.'' This comment, however,
is well taken and NMFS will continue to work closely with FWS to
coordinate and streamline ESA implementation. NMFS notes that it is
commonly requested to distinguish biological requirements of salmonids
from biological requirements of other species (some under the
jurisdiction of FWS).
Comment 17: Commenters asked NMFS to establish a funding mechanism
(e.g., an escrow account) to support habitat restoration activities.
Response: Millions of dollars in Federal funding have been granted
to
[[Page 42428]]
state programs that fund specific habitat restoration projects. NMFS
will continue to support funding for these programs in the future.
Comment 18: Several commenters argued that current conditions are a
result of past practices, not current practices. They believed that
NMFS has failed to justify why the little remaining habitat is
important to listed fish and failed to provide detailed scientific
rationale to support the agency's contention that certain activities
(e.g., urban development) result in take.
Response: NMFS disagrees. The list of examples in this final rule
(see Take Guidance) as well as those provided in the proposed rule give
general guidance on the types of current activities that are very
likely to take threatened salmonids. While not exhaustive, this list
was based on direct experience with managing salmonid populations in
their natural environment and a thorough understanding of the
scientific literature. The ESA listing process for these threatened
salmonids has documented the decline of salmonid populations in the
four western states and has identified the historic and current causes
of these declines. The commenters correctly note that past practices
have caused the decline of salmonid populations; however, current human
activity can also kill or injure listed salmonids. Development and
other human activities within riparian areas or elsewhere in the
watershed alter the properly functioning condition of riparian areas.
These activities can alter shading (and hence stream temperature),
sediment transport and supply, organic litter and large wood inputs,
bank stability, seasonal streamflow regimes, and flood dynamics. The
natural functions of riparian areas and the ways in which human
activities affect those processes and functions are described in the
publication entitled ``An Ecosystem Approach to Salmonid Conservation''
(NMFS, 1996).
Comment 19: Some commenters requested maps of ``sensitive resource
sites'' at a large scale so local jurisdictions that deal with small
land parcels may use them. Some commenters stated that NMFS should
focus on areas where redds or fish are actually present, not on general
definitions such as ``spawning gravels.''
Response: NMFS acknowledges the value of producing maps that
identify resource sites important for the different salmonid life cycle
stages. NMFS will continue to work with state entities, local
jurisdictions, co-managers and citizens to increase our knowledge of
threatened salmonids. NMFS will also continue to increase its own
capabilities for mapping resource areas and watersheds. Because there
were so many comments requesting that NMFS identify which activities
have a high likelihood of resulting in take and will be priorities for
enforcement action, the take guidance has been revised to focus on high
risk activities. The language referring to ``spawning gravels'' has,
therefore, been removed.
Comment 20: One commenter requested that NMFS add the word
``intentional'' to clarify the take guidance regarding promotion of
predator populations associated with habitat alterations.
Response: NMFS must respectfully disagree. Whether the action is
intentional or unintentional, NMFS considers habitat alterations that
promote predation on listed species to be undesirable. Such actions may
in fact cause injury or harm to listed salmonids.
Comment 21: Several commenters recommended adding sediment
discharge to the list of toxic chemicals and other pollutants that are
very likely to injure or kill salmonids. Other commenters requested
that NMFS clarify which chemicals and pollutants it is referring to in
this section.
Response: NMFS refers to toxic chemicals or other pollutants being
discharged or dumped and then gives examples by listing sewage, oil,
gasoline, and others. Sedimentation from timber harvest and other land
use activities may plug the interstitial spaces in gravel spawning
areas reducing salmon egg survival during their incubation period as
well as many other deleterious effects. Based on these comments and the
fact that sediment discharge may harm listed salmonids by physically
disturbing or blocking streambed gravels, NMFS added soil disturbances
to the list of actions that are likely to kill or injure salmonids.
Comment 22: One commenter urged NMFS to add language in the
activity category dealing with the chemical and pollutant discharge or
dumping to recognize that take can also occur when these activities are
carried out with a valid permit. Another commenter recommended that
NMFS clarify which permits are considered ``valid,'' and one commenter
stated that this potential ``take'' should only apply to waters
supporting the listed salmonids.
Response: NMFS agrees that chemical and pollutant discharge may
take listed fish whether or not there is a valid permit for the
discharge. In order to clarify this point, NMFS has deleted the words
``particularly when done outside of a valid permit for the discharge''
from the take guidance. Regarding the suggestion that take prohibitions
should only be applied to waters supporting listed salmonids, the take
guidance applies throughout the ESU for the listed species whether or
not there are salmonids present in individual rivers or streams.
Comment 23: One commenter noted that the introduction of non-native
species likely to prey upon or displace listed species should be
expanded to include non-native species that may adversely affect
salmonid habitat.
Response: NMFS agrees that non-native species may alter salmonid
habitat to such an extent that the habitat may no longer provide all
the functions and characteristics that support listed salmonids. The
take guidance language now reflects this suggestion.
Comment 24: Numerous commenters argued for language changes and
refinements in the descriptions of actions that may injure or kill
listed salmonids. The first suggestion is to expand the list of ways
fish passage can be blocked to include human-induced physical,
chemical, and thermal blockages.
Response: NMFS has revised the take guidance to address this
comment and to clarify its enforcement priorities.
Comment 25: Several commenters suggested adding language to the
list of activities ``very likely to injure or kill salmonids'' to
address activities that further contribute to or maintain water quality
impairments in those water bodies on the 303(d) list of the CWA.
Response: NMFS agrees that this is an important issue and that
activities that degrade water quality or maintain degraded conditions
can injure listed species. This issue is already addressed in the
section on discharging or dumping toxic chemicals or other pollutants
into water or riparian areas and in the language changes discussed in
the previous comment.
Comment 26: Some commenters urged NMFS to state that water
withdrawals can affect salmonids in more ways than adversely modifying
spawning and rearing habitat. One commenter also requested that NMFS
note that water withdrawals can adversely affect groundwater by
capturing flow that might otherwise discharge to surface waters.
Response: NMFS considers ``spawning, rearing, and migrating'' to be
``essential behavioral patterns.'' The word ``migrating'' will be added
to the take guidance regarding water withdrawals. Regarding the second
comment about the potential impact of water withdrawals on groundwater
and surface water, NMFS cannot provide
[[Page 42429]]
further detail in this take guidance because the actual impacts of a
given act depend on situation-specific conditions.
Comment 27: Several commenters asked NMFS to expand the discussion
of impacts arising from water diversion and flow discharges to include
impacts other than changes in stream temperature.
Response: NMFS agrees that water diversions and discharge may have
other deleterious effects on salmonid habitat. These may include
impacts on sediment transport, turbidity, and stream flow alterations.
The actual likelihood that these actions would result in take depends
on situation-specific conditions. Based on public comments, the take
guidance in the final rule has been revised to clarify NMFS' intent
regarding which activities are very likely to injure or kill salmonids
and to identify priorities for NMFS enforcement action.
Comment 28: Several commenters recommended moving the topics
``water withdrawals'' and ``violation of federal or state CWA discharge
permits'' from the section where actions may injure or kill listed fish
to the section where actions are ``very likely to injure or kill
salmonids.''
Response: NMFS has revised the take guidance. One change is that
water withdrawals have been added to the list of activities that are
very likely to injure or kill salmonids. However, the likelihood that
take will actually occur depends on the individual action. The issue of
actions that violate Federal and state CWA discharge permits is not
specifically addressed in the new take guidance language.
Comment 29: One commenter urged NMFS to consider land use
activities that affect more than just salmonid habitat. They
highlighted the fact that adverse effects include impacts on floodplain
function, natural hydrologic patterns, riparian function, and water
quality. They also recommended expanding the list of land use
activities identified in the proposed rule.
Response: In a section of the preamble of the proposed rule
entitled Aids for Understanding the Limits on the Take Prohibition,
under Issue 2: Population and Habitat Concepts, NMFS describes properly
functioning habitat conditions that create and sustain the physical and
biological features essential to conserving the species. These habitat
conditions recognize the importance of floodplain function and channel
migration and emphasize the dynamic nature of natural systems. NMFS
intends the term ``salmonid habitat'' to be consistent with the habitat
functions and processes described in the Habitat Concepts preamble
language. NMFS recognizes that different types of land use activities
can impact salmonid habitat to such an extent that take may occur.
Language has been added to the revised take guidance to address
floodplain gravel mining and floodplain development.
Comment 30: Several commenters argued that the take guidance needs
to be clarified so that the public can understand what NMFS means in
its different categories of take.
Response: NMFS agrees that the take guidance language in the
proposed rule caused confusion about which activities can result in
take and what actions will be priorities for enforcement. NMFS has
revised the take guidance section to focus on those activities that are
very likely to injure or kill salmonids.
Comment 31: One commenter suggested amending the proposed language
concerning take due to water withdrawals by using Oregon Department of
Fish and Wildlife (ODFW) minimum flows to regulate water withdrawals.
Response: NMFS does not reference specific state, local, or private
regulations or programs that might prevent take because there is such a
large number of programs (and partial programs) in the different states
that could be cited. Absent a program approved under section 7 or 10 of
the ESA or under this rule, individual jurisdictions and private
entities will need to develop, adopt, and implement programs that
prevent take.
Comment 32: One commenter suggested that NMFS clarify its intent by
using the language ``actually impact water quality'' in the context of
take occurring due to violations of Federal or state CWA discharge
permits.
Response: NMFS notes the comment. However, due to changes in the
final rule's take guidance language, this specific category of activity
has been eliminated.
Comment 33: Some commenters asserted that rural areas were unfairly
singled out for engaging in activities that take listed species while
urban areas were given ESA 4(d) limits.
Response: NMFS applies the prohibition against take uniformly
across the landscape encompassed by the threatened species' ESUs. This
take prohibition applies equally to rural areas and urban areas and the
take guidance identifies activities that can occur in urban and rural
areas. Limits on the take prohibitions were given to complete programs
that were shown to conserve salmon and steelhead.
Comment 34: One commenter asked that NMFS clarify the relationship
between take avoidance and the designation of critical habitat.
Response: Critical habitat is a geographic description of the areas
essential for a species' conservation. These designations highlight
important habitat features as well as management actions that may
require special management considerations. Take avoidance relates to
critical habitat in that special management actions taken (or
authorized) by Federal agencies must avoid adversely modifying critical
habitat.
Viable Salmonid Populations (VSP)
Comment 35: Several commenters said that NMFS should not base
policy on a document that is not complete and has not been reviewed in
its final form.
Response: Comments on the December 13, 1999, VSP draft were
solicited from over 50 peer reviewers plus tribal and state co-
managers. In addition, the document has been available for public
comment since the draft ESA 4(d) rules were released. We have received
approximately 20 peer and co-manager reviews, plus numerous public
comments. These reviews, particularly those from peer-reviewers, have
generally been very positive, and the document will require little
substantive revision before publication as a NOAA Technical Memorandum
in June of 2000.
Comment 36: Several commenters stated that populations are
generally smaller than a ``distinct population segment'' as defined in
the ESA and NMFS has ``gone too far'' in proposing protection of
individual populations.
Response: In applying the VSP principles, NMFS does not mean to
require equal protection of every single population. The unit requiring
protection under the ESA is a ``distinct population segment'' (i.e.,
ESU). Therefore, it is the ESU that NMFS must ensure has a minimal risk
of extinction. A population is the appropriate biological unit for
scientifically evaluating salmonid extinction risk. The status of an
ESU can be determined in large part by analyzing the individual
populations that constitute the ESU, and determining how their
individual statuses combine to affect ESU viability.
Comment 37: Many commenters said that VSP is too vague to be
implemented.
Response: Where possible, NMFS has endeavored to provide numerical
guidelines for viability thresholds. However, VSP generally does not
provide generic quantitative criteria that can be applied to all
salmonid populations because the thresholds vary by species and
location. This means that
[[Page 42430]]
applying the VSP principles will require population- and ESU-specific
evaluations. This will not be very satisfying to managers looking to
VSP for ``the answer,'' but is the only scientifically sound course at
this time. NMFS will continue to explore whether generic guidelines (or
modeling approaches) may be appropriate for some criteria (e.g.,
minimum population size), but this requires further analysis and will
not be a part of the VSP paper finalized in June. As geographically-
specific VSP applications are completed, more general numerical
guidelines may be possible.
Comment 38: Several commenters noted that NMFS does not define the
relationship of the VSP terms ``viable'' and ``critical'' to the ESA
terms ``threatened'' and ``endangered.''
Response: The VSP paper does not attempt to define ``threatened''
and ``endangered'' under the ESA. Defining ``threatened'' and
``endangered'' requires policy decisions about the acceptable levels of
risk to an ESU that the VSP concept does not address. It is also
important to note that the terms viable and critical in VSP are often
applied to populations, whereas the unit of interest with regard to the
ESA is the ESU.
Comment 39: Several commenters wanted the effects of potential
actions to be evaluated on scales other than the population (some
desired smaller, some larger).
Response: Although a population is the appropriate unit for
studying many biological processes, it may also be appropriate to
evaluate management actions that affect units at smaller or larger
spatial and temporal scales. For example, ocean harvest plans may
affect multiple populations, while a habitat restoration plan only
affects a small portion of a single population's habitat. The VSP
concept does not preclude establishing goals at these different scales.
However, management actions ultimately need to be related to population
and ESU viability.
Comment 40: Several commenters said that VSP does not adequately
consider the importance of freshwater habitat.
Response: VSP does not attempt to establish the habitat
requirements for recovering populations. Habitat criteria are captured,
generally, in the concept of Properly Functioning Conditions (PFC)
discussed within this rule.
Comment 41: A few commenters said that VSP does not consider
important components of recovery planning, such as ecological
interactions.
Response: The VSP concept attempts to describe the population level
attributes of viable salmonid populations; it does not prescribe how to
recover populations. Recovery will require the entire suite of factors
that impact salmon throughout their life cycle to be considered and
evaluated--including ecological interactions and habitat needs. These
are important issues that will need to be dealt with during recovery
planning.
Comment 42: Several commenters said that data needed to evaluate
VSP parameters will not be available and, therefore, VSP concepts
cannot be applied.
Response: Data will generally not be available to thoroughly
evaluate every VSP parameter. In developing the VSP guidelines, NMFS
tried to consider all the processes that need to be evaluated in order
to determine a population's status. If all of these processes cannot be
evaluated, the VSP guidelines suggest the type of data that need to be
collected. If a VSP guideline cannot be evaluated, managers must
explicitly recognize the uncertainty associated with current management
decisions because of a data-poor environment. The fact that VSP
facilitates this recognition is, in itself, a valuable contribution.
Comment 43: A few commenters said that VSP makes several references
to ``historic conditions'' for evaluating population status, but does
not define the time frame for ``historic.''
Response: Historic conditions are used as a reference point in
evaluating population status because under historic conditions
populations were assumed to have been viable. The time frame, then,
refers to a period in time where the population or ESU was considered
self-sustaining and may represent different eras for different groups
of fish. However, it should be noted that while historical data can be
a valuable tool in evaluating population status, it should not suggest
that NMFS will require all populations to be at historic levels in
order to be viable. The value placed on historic data and the
relationship between recovery goals and historic levels will be ESU-
and population-specific.
Comment 44: One commenter argued that given the high levels of
uncertainty associated with the ESU viability guidelines, the default
assumption should be that all populations need to be viable in order to
produce a viable ESU.
Response: This seems to be an appropriately precautionary approach,
but responses to uncertainty entail policy decisions that can only be
made after carefully analyzing a specific situation.
Comment 45: One commenter said that by defining populations, VSP
claims that straying always has negative effects on viability.
Response: In the process of identifying populations, there is no
blanket assumption that straying has a negative effect on viability.
Straying is a natural process, and appropriate levels of straying
within and among viable populations will depend on a balance between
the risks and benefits of straying. Indeed, the VSP document
acknowledges the potentially critical role that straying plays in
extinction and recolonization dynamics among salmonid subpopulations
and populations. It should also be noted that human factors (such as
stock transfers, blockage of migratory routes, and other habitat
alterations) have the potential to increase rates of genetic exchange
by one to two orders of magnitude over historic levels. These changes
are unlikely to be beneficial.
Comment 46: Several commenters stated that VSP does not consider
certain factors to be important when evaluating population status.
These factors included (1) marine-derived nutrients, (2) diversity, (3)
temporal and spatial structure, and (4) genetic drift.
Response: These topics are covered in the current draft of the VSP
document, and some topics may be clarified or expanded during the
revision process.
Comment 47: A few commenters said that in evaluating VSP
parameters, juvenile fish counts should be considered as well as (or
instead of) adult spawner counts.
Response: Although the VSP paper discusses using juvenile fish
counts, the guidelines generally focus on adult spawners counts--and
not other life stages--because spawner count data sets are prevalent
throughout the region and they can be related to the extensive body of
conservation biology principles with relative ease. However, NMFS does
not go into great detail on monitoring and evaluation programs and
should consider any scientifically defensible strategy that allows
population status to be evaluated. In some cases, it may be more
feasible to collect data on juveniles than adults and it may be
possible to assess population viability based primarily on juvenile
counts. However, the population evaluation would still need to address
the principles outlined in VSP regarding all four parameters (i.e.,
abundance, productivity, spatial structure, and diversity).
Comment 48: One commenter said NMFS does not take an ``ecosystem
approach.''
[[Page 42431]]
Response: It is true that VSP focuses only on Pacific salmonid
populations and the ecological processes that directly or indirectly
affect them. The paper does not deal explicitly with other species or
ecosystem processes that do not affect salmonids. However, given the
large geographic scale and the presumed keystone role of salmonids in
many ecosystems, an ``ecosystem approach'' is likely to emerge.
Defining the management processes that may support an ``ecosystem
approach'' is outside VSP's scope and intent.
Comment 49: One commenter said that VSP is a framework, not a
benchmark, and asserted that the states should have the latitude to
develop some of their own benchmarks within this framework.
Response: As noted in a previous response, VSP generally does not
provide generic quantitative criteria. Quantitative criteria will be
required in setting recovery goals for specific ESUs. In some contexts
(often in reference to broad landscapes), the standard is expressed as
``seeking to attain or maintain PFC.'' ``Contribute to PFC'' is a
phrase often used in reference to near-term actions that put habitat on
a course to attain PFC over time and is consistent with the standard.
Finally, in some circumstances (often in referring to more site-scale
decisions), the standard may be expressed as ``not precluding PFC.''
There is no distinction in practice between these expressions of the
standard.
Evaluating Habitat Conditions-Properly Functioning Conditions (PFC)
Comment 50: Several commenters opined that PFC should be more
clearly defined. Others suggested that specific numeric criteria be
included.
Response: Both the preamble and rule texts have been modified to
more clearly define PFC and its central role in habitat evaluations.
Proper functioning conditions create and sustain over time the physical
and biological characteristics that are essential to conservation of
the species, whether important for spawning, breeding, rearing,
feeding, migration, sheltering, or other functions. Habitat-affecting
processes include, but are not limited to vegetation growth, bedload
transport through rivers and streams, rainfall runoff patterns, and
river channel migration. The concept of proper function recognizes that
natural patterns of habitat disturbance, such as through floods,
landslides and wildfires, will continue.
NMFS measures conditions on the landscape to evaluate whether and
how PFC is likely to be affected, attained or maintained by an
activity. The indicators vary between different landscapes based on
unique physiographic, geologic or other features. Although the
indicators used to assess functioning condition may entail
instantaneous measurements, they are chosen, using the best available
science, to detect the health of underlying processes, not static
characteristics.
The scope of any given activity is important to NMFS' analysis. The
scope of the activity may be such that only a portion of the habitat
forming processes in a watershed are affected by it. For NMFS to find
that an activity is consistent with the conservation of the listed
salmonids, only the effects on habitat functions that are within the
scope of that activity will be evaluated. For example, an integrated
pest management program may affect habitat forming processes related to
clean water, but have no effect on physical barriers preventing access
by fish to a stream.
NMFS' evaluation of an activity includes an analysis of both direct
and indirect effects of the action. ``Indirect effects'' are those that
are caused by the action and are later in time but are still reasonably
certain to occur. They include the effects on species or critical
habitat of future activities that are induced by the original action
and that occur after the action is completed. The analysis also takes
into account direct and indirect effects of activities that are
interrelated or interdependent with the proposed action. ``Interrelated
actions'' are those that are part of a larger action and depend on the
larger action for their justification. ``Interdependent actions'' are
those that have no independent utility apart from the action under
consideration. NMFS has published an extensive discussion of the
effects of activities in its Consultation Handbook--Procedures for
Conducting Consultation and Conference Activities Under section 7 of
the Endangered Species Act (March, 1998).
Though there is more than one valid analytical framework for
determining effects of an activity, NMFS has developed an analytic
methodology it has documented in a Matrix of Pathways and Indicators
(MPI; often called ``The Matrix''). The MPI can help NMFS and others
identify any risks to PFC. The pathways for determining the effects of
an action are represented as six conceptual groupings (e.g., water
quality, channel condition, and dynamics) of 18 habitat condition
indicators (e.g., temperature, width/depth ratio). Default indicator
criteria (mostly numeric, though some are narrative) are laid out for
three levels of environmental baseline condition: properly functioning,
at risk, and not properly functioning. The effect of the action upon
each indicator is classified by whether it will restore, maintain, or
degrade the indicator.
The MPI provides a consistent, but geographically adaptable,
framework for effects determinations. The pathways and indicators, as
well as the ranges of their associated criteria, are amenable to
alteration through the process of watershed analysis. The MPI, and
variations on it, are widely used in consultations under Section 7 of
the ESA on the effects of federal actions and will be similarly used to
evaluate activities pursuant to this rule. The MPI is also used in
other venues to determine baseline conditions, identify properly
functioning condition, and estimate the effects of individual
management prescriptions. While this assessment tool originally was
developed to address forestry activities, NMFS intends to work with
state, tribal, and other experts to facilitate its use in other
ecological settings such as lakes, estuaries and urban settings.
Comment 51: One commenter objected that the conservation standard
for PFC was ``jeopardy'' or survival, which is inadequate for ESA 4(d)
rules and for recovery.
Response: PFC is not calibrated to provide for population
persistence at some level less than full recovery, nor does NMFS
believe that the best available science holds out the possibility of
such an incremental approach to habitat conservation. Land and resource
managers are required to demonstrate that their proposed activities
will allow for the recovery of all essential functions of salmon
habitat.
Comment 52: Several letters addressed the applicability of the
``properly functioning conditions'' concept to urban settings and
questioned whether PFC could ever be attained in urban environments.
Response: It is widely recognized that urbanization alters the
hydrologic behavior of once unpaved, undeveloped lands. Within this
context, common goals for the management of urban landscapes include
controlling stormwater runoff and protecting water quality. An urban
watershed can become properly functioning if the ecological functions
essential for listed salmonids within the watershed-such as storage,
attenuation of peak flows, and water quality mitigation--can be
restored by increasing watershed storage and providing buffers to
attenuate water quality problems emanating from urban landscapes. In
this context, the PFC goal
[[Page 42432]]
is to restore the hydrologic function in the urban watershed by
modifying peak flow events, providing storage, protecting water quality
and habitat, and allowing passage.
Comment 53: One commenter stated that the draft VSP concept and
NMFS' established PFC approach were inconsistent.
Response: The VSP concept is being developed to serve as a
population management analog to PFC's role in evaluating habitat-
affecting actions. The intent of VSP is to serve as a consistent
conservation standard, equivalent to PFC, that can be applied in
diverse analyses. The VSP emphasizes measurable fish population
parameters because that is how fish harvest and culture activities'
environmental effects are most immediately and evidently expressed.
Conversely, PFC indicators are typically physical habitat
characteristics because they most readily and measurably show the
effects of land and water management regimes. In essence, PFC is a
description of conditions that support salmonid productivity at a
viable level. However, because the standards are applied at widely
different geographic scales, NMFS cannot currently describe the
quantitative relationships between fine-scale habitat characteristics
and salmon population levels. Though the two approaches measure effects
on different salmonid biological requirements, they consistently strive
toward the same end: determining the effects of various activities,
placing them in the context of the species' life histories, and using
that data to ascertain the best means of recovering the salmon.
Legal/National Environmental Policy Act (NEPA)/Reg Flex/Direct Take
Comment 54: Commenters asserted that the proposed rule exceeds
NMFS' authority, either by reaching too far in protections or failing
to meet ESA mandates by not being protective enough. Many commenters
raised questions about the legal standards underlying limits and about
the relationship between section 4(d) and section 7 consultations or
section 10 habitat conservation plans. Several asserted that the
standards for all three functions should be the same; others emphasized
that the standard for 4(d) is more protective, stating that it must
conserve the listed species.
Response: Many of those comments focus more on the limits provided
than on the legally enforceable outcome of the rule (the take
prohibitions). This response will first set forth in a general fashion
the basis for this final rule, and then respond to the remainder of
legal issues that are not included in the overall description.
First, section 4(d) regulations are those ``necessary and advisable
to provide for conservation'' of the threatened salmonids. This final
rule imposes one major regulatory prohibition (in addition to the less
significant prohibitions of section 9(a)(1) or interstate commerce and
import/export): that is, that actors are to avoid taking threatened
salmonids of the 14 listed ESUs. The take prohibitions are what the ESA
imposes by statute to protect endangered species and, if perfectly
implemented, would provide the most protection possible. There is no
question but that take prohibitions ``provide for the conservation'' of
the species.
Nor can there be any real question about the advisability of
imposing take prohibitions at all. NMFS' listings were based on
findings that the ESUs are at risk and specifically that there are
factors (set forth in ESA section (4(a)(1)) that have caused and are
continuing to cause the listed ESUs' populations to decline. See
``Factors for Decline: A Supplement to the Notice of Determination for
West Coast Steelhead'' (NMFS, 1996); Coastal Coho Habitat Factors for
Decline and Protective Efforts in Oregon'' (NMFS, 1997), and ``Factors
Contributing to the Decline of Chinook Salmon: An Addendum to the 1996
West Coast Steelhead Factors for Decline Report'' (NMFS, 1998). Many of
these factors (habitat destruction, overutilization, inadequate
regulatory systems) are state, local, or private, and have no link to
Federal actions. Prohibiting take for these ESUs is, therefore, the
most direct way of protecting the listed species. NMFS listed two
additional chinook ESUs as threatened in September of 1999 and will be
proposing ESA 4(d) protections for them in the near future.
This final rule also establishes 13 circumstances in which NMFS
does not find it necessary and advisable to apply the take
prohibitions. NMFS believes that by describing (wherever possible) a
program or the components of a program that will adequately protect the
species, it provides valuable guidance to agencies or individuals
wishing to play a part in salmonid protection and will minimize their
legal risks under the ESA as well. NMFS further believes that it is
appropriate to limit the take prohibitions for such programs provided
that NMFS' salmonid conservation goal (and legal responsibility) is not
compromised--that is, so long as the rule provides for conservation of
the listed ESUs. Thus, this final rule limits the application of the
take prohibitions selectively. NMFS is confident that given the
stringency of the fish protections in the programs receiving limits on
the take prohibitions, this final rule meets the section 4(d)
conservation standard.
In determining that take prohibitions are not necessary and
advisable for a particular program, NMFS has ensured that each
program--including programs that NMFS will evaluate in the future to
determine whether they fit within one of the 13 limits--will not
jeopardize the species. That is, none will appreciably reduce the
likelihood of survival and recovery of any of the ESUs in the wild.
Further, for some programs involving sectors which have had
particularly destructive impacts on habitat or bear other significant
responsibility for decline of the species, there must be a
demonstration above and beyond ``not jeopardizing.'' Just as a Federal
agency has a responsibility not only to conduct its affairs in a way
that does not jeopardize but also to use its authorities in furtherance
of the conservation of the species, ESA 4(d) regulations as a whole
must provide measures necessary and appropriate to conserve the
species. Hence, while for many actions or programs ``not jeopardizing''
may be equivalent to not precluding or impairing recovery, for others
it may be necessary to include commitments for specific positive
contributions that are vital to recovery because of past impacts from
those sectors. NMFS has taken those considerations into account when
evaluating potential programs (or establishing approval criteria) to
determine if they qualify for inclusion in one of the limits.
By statutory definition, species conservation equates to those
methods and procedures that will bring a species to the point at which
it no longer needs the protections of the ESA and may be delisted.
Those methods and procedures encompass the full array of actions that
will contribute to recovery: Federal efforts to avoid jeopardy and
conserve the species under section 7; efforts taken in accord with
section 10 conservation plans; state, tribal, local, or private
initiatives undertaken to improve the prospects of listed fish quite
independent of any ESA requirement; efforts to avoid taking listed
species; and habitat improvements accomplished under numerous
regulatory programs for protecting other resources, such as the CWA,
state and Federal regulations governing fill and removal in waterways,
and the like.
NMFS believes this final rule reflects the necessary and
appropriate level of protections for conserving these threatened ESUs
given our current
[[Page 42433]]
knowledge. As the preamble to the proposed rule noted, NMFS recognizes
that new information may lead to changes in the final rule. NMFS has
not yet completed recovery planning for the species subject to this
final rule, nor does the ESA command that recovery planning precede
enactment of 4(d) regulations. Once recovery planning is complete, NMFS
may amend the 4(d) protections with any combination of new or amended
limits, impose the take prohibitions if a limit were found not to be
consistent with a necessary and appropriate recovery measure, or
require enhancements or prescriptions.
Comment 55: A few commenters asserted that NMFS gives no indication
that it intends to comply with ESA sections 7 or 10 in promulgating or
implementing these rules.
Response: Promulgation of a section 4(d) rule is a Federal action
requiring consultation under section 7 of the ESA. NMFS must ensure
through its internal consultation process that the 4(d) rule being
promulgated is not likely to jeopardize the continued existence of
listed species or result in the destruction or adverse modification of
their critical habitat. NMFS completed the required consultation and
concluded that promulgation of this rule greatly improves protections
for threatened salmonids and their habitat, and is not likely to
adversely affect either those ESUs or other listed species. NMFS has
complied with its section 7 consultation requirements.
Where take prohibitions are imposed, those pursuing actions that
may take listed salmonids may choose to apply for a section 10 permit
at any time. Section 10 permits are issued on a case-by-case basis
supported by individual analysis and section 7 consultation. Where NMFS
has found it not necessary to impose take prohibitions, there would be
no basis for issuing research or enhancement or incidental take permits
through section 10, provided the action is carried out in accordance
with the requirements of the applicable limit.
Comment 56: One commenter urged that NMFS make clear that no state
or local rule shall hinder NMFS or citizens from taking legal actions
to ensure salmon recovery. Another asked that NMFS provide for citizen
enforcement and appeal of local government permits re ESA issues. A
third commenter suggested that the limits be revised to reflect the
idea that they extend only so far as local governments' reasonable
interpretation and application of its own rules.
Response: This final rule does not in any way alter the ESA's
enforcement provisions, including the rights of third parties to
enforce under appropriate circumstances. Second, NMFS believes the
proposed rules clearly established that in any enforcement proceeding
where there is a question whether an action is ``in compliance with''
one of the described limits, it is ultimately the defendant's (or
respondent's) responsibility to assert that issue as an affirmative
defense and establish facts that show compliance. In order to dispel
any confusion by the public on this point, NMFS has added a subsection,
``Affirmative defense,'' to spell out that it will be the defendant's
or respondent's obligation to plead application of and compliance with
a limit as an affirmative defense. This approach is consistent with the
structure of the proposed rule and with ESA section 1539(g) which
states ``In connection with any action alleging a violation of section
1538 [the section 9 prohibitions] of this title, any person claiming
the benefit of any exemption or permit under this chapter shall have
the burden of proving that the exemption or permit is applicable, has
been granted, and was valid and in force at the time of the alleged
violation.'' NMFS anticipates that in most cases, the applicability of
individual limits will be resolved early in an enforcement
investigation. Enforcement personnel will make reasonable efforts to
attempt to rule out the applicability of 4(d) limits by, for example,
evaluating circumstantial evidence, or through direct contact with the
potential violator and subsequent confirmation through reliable third
party sources. However, ultimately it is not the agency's
responsibility to determine the existence or nonexistence of every
exculpatory fact relating to an alleged ESA violation. This
clarification is also consistent with existing case law, which
generally holds that the burden of raising and proving affirmative
defenses rests with the defendant, not with the government (see, e.g.,
Patterson v. New York, 97 S.Ct. 2319 (1977)).
As to the third comment, once a state or local government program
comes within a limit (for instance, local development ordinances found
by NMFS to meet the standards of the rule), it will be up to the local
government to implement that ordinance, including any necessary
exercise of reasonable judgement. If monitoring or other information
indicates that the ordinance, as implemented, is not providing adequate
protections, then the adaptive mechanisms in the 4(d) rule will trigger
changes in the ordinance, imposition of the take prohibitions, or
imposition under the ESA of affirmative requirements.
Comment 57: One commenter suggested that the standards set in the
4(d) rule to qualify for a limit are higher than landowners would
otherwise be required to meet to avoid take. Another stated that there
was no consistent conservation standard applied in evaluating potential
limits.
Response: NMFS must respectfully disagree. The limits described in
this final rule do not in every circumstance avoid all take. To do so
would require much more stringent steps in some cases. Rather, the
limits reflect NMFS' judgement that activities in compliance with such
a program or approach are what current information indicates will be
necessary and advisable for that activity sector to conserve the ESUs.
Activities in compliance with such a program or approach will not
appreciably reduce the likelihood of survival and recovery of the
species in the wild and, where necessary, will include other
conservation measures to repair or improve conditions. Nonetheless, it
is expected--and in some cases demonstrable--that activities satisfying
the conditions for inclusion within one of the limits will still take
listed salmonids.
In evaluating fishery management programs to determine if they
qualify for a limit, NMFS relies on the concept of viable salmonid
populations and its associated use of viable and critical thresholds
for management decisions. The limits require that relevant biological
parameters be identified so individual population status can be
evaluated and the program may be placed in an appropriate context for
determining whether it will support population viability. Land
management related programs being considered for limits are assessed
according to their ability to help attain or maintain properly
functioning conditions (i.e., those conditions NMFS considers necessary
for supporting viable salmonid populations).
Comment 58: Several commenters noted that NMFS had not made the
case that take prohibitions (or any ESA 4(d) rules) are needed for
these ESUs, or for specific sectors of activity. Some assert that NMFS
should first demonstrate that conservation activities applicable to
Federal activities have been fully tapped before applying 4(d) rules to
private lands.
Response: NMFS must respectfully disagree. While the contribution
of non-Federal actions to the overall decline of the ESUs affected by
this final rule varies, depending in part on the ratio of Federal to
non-Federal lands and in part
[[Page 42434]]
on the concentration of habitat modifications and non-Federal hatchery
or harvest impacts, NMFS could not justify placing all hope of
sustaining and recovering these ESUs on Federal agency actions alone.
The record upon which NMFS listed these ESUs is abundantly clear that
the decline of the ESUs is substantially influenced by actions other
than those with some Federal nexus. While section 4(d) provides the
Secretary some discretion in determining what protective regulations
are necessary and advisable in a given circumstance, the structure of
the section strongly supports the appropriateness of a determination to
impose take prohibitions.
Comment 59: At least one commenter, while agreeing that the limits
are not prescriptive rules, states that the rule making record does not
support ``this wide-ranging prescriptive rule'' which the commenter
believes prohibits ``a very wide variety of activities that might
occasionally ``take'' listed species'' without NMFS' permission.
Response: To repeat the preamble text from the proposed rules,
``[t]he fact of not being within a limit would not mean that a
particular action necessarily violates the ESA or this regulation.''
NMFS has attempted to make even clearer in this final rule that
activities that are not within a limit are not prohibited. What is
prohibited is taking a threatened salmonid through any activities not
within a limit. Those conducting activities that are not within a limit
are subject to liability only if it can be demonstrated that their
activities in fact have taken a threatened salmonid. An actor believing
that its actions result in incidental take may apply for an incidental
take permit under ESA section 10 to ensure that no enforcement
liability accrues.
Comment 60: Two commenters noted that they had requested the
decision-making record (for the proposed rule) and were told that it
was ``unavailable for public review.''
Response: Both proposed 4(d) rules included a ``References''
section that offered a list of the references relied on. These
documents were available to the public. That is all that informal
rulemaking requires.
Comment 61: A few commenters noted that it is inconsistent with the
ESA to apply the ``jeopardy'' standard (to not appreciably reduce the
likelihood of survival and recovery in the wild) in a 4(d) rule; also,
doing so for tribal plans is inconsistent with the standard applied for
other ``exemptions.'' One commenter urged that NMFS model all of the
limits after the limit for tribal plans, which provides a process for
NMFS to determine a plan's consistency with ESA standards, but does not
set out specific requirements or standards.
Response: NMFS believes that none of the limits will jeopardize the
listed species' survival or recovery and that each habitat-related
limit will contribute to placing habitat on a trajectory toward proper
function and populations on a trajectory toward viability. It is worth
noting that in practical application, distinctions between what is
needed for survival and recovery and between providing for recovery and
not jeopardizing the likelihood of survival and recovery are
speculative at best and perhaps specious. The limit for tribal plans
applies that same standard but without specific requirements or
standards, in deference to tribal sovereignty and the government-to-
government basis on which NMFS interacts with tribes. It is important
to note that while there is less specific guidance with respect to
tribal resource management plans, they will be assessed against the
fundamental ESA standard (whether they will appreciably reduce the
likelihood of survival and recovery in the wild), as have the other
limits, and that any determination regarding tribal resource management
plans will be accompanied by a description of the biological rationale
for its outcome.
Comment 62: One commenter believed that the ESA 4(d) limits are
``negotiated,'' ``second class'' HCPs appropriate only to larger
governmental entities and that they consign jurisdictions with smaller
population bases to the fringes of the process. Another urged that all
limits should be drafted so that they are made available to any
government wanting to participate and get coverage under the limit.
Response: While NMFS does not agree with the commenter's
characterization of the limits, we have broadened some of the limits'
availability and modified others in such a way that they are more
adaptable for smaller or more rural jurisdictions. For instance, the
development limit no longer targets only to ``urban density''
development, and the road maintenance limit is available to any
jurisdiction. These sorts of adjustments are the very heart of the 4(d)
limit process--they illustrate NMFS' intention to create an open
process of public review and adapt our proposals (when we may) in
accordance with the feedback we receive.
Comment 63: One commenter suggested that NMFS should create
``categorical exclusions'' for activities not requiring the ongoing
review and monitoring required in the proposed rules. The commenter
points to FWS regulations that permit the Utah prairie dog to be taken
under Utah state permits.
Response: In this final rule NMFS has made a number of adjustments
to make limits more broadly available and to minimize requirements for
oversight. However, the prairie dog provision the commenter cites makes
very clear that if those takings interfere with conserving the species,
FWS may immediately prohibit further such takings. Similarly, NMFS
believes that the level of ``tracking'' required in this final rule
will ensure that impacts from non-prohibited activities are consistent
with conserving the threatened salmonids.
Comment 64: Some commenters asserted that the ``proposed
requirement'' for protecting flows for listed species should be
addressed in a local government's ordinance is beyond the scope and
authority of a local government.
Response: Evaluation consideration ``J'' for the MRCI limit asks
that the local government ordinances ensure that [new] development-
related water supply demands can be met without impacting flows needed
for threatened salmonids. This request does not require local
government to regulate water rights or otherwise control flows; it asks
only that new development demonstrate that its new water demands can be
satisfied without undercutting flows required by threatened salmonids.
Comment 65: One commenter suggested NMFS should delegate to state
and local officials authority to limit the take prohibition or provide
a ``certificate of safe harbor.'' Another commenter suggested that ESA
section 9 take prohibitions cannot apply within a state unless the
state has also adopted those regulations. This comment relies on the
reference within 4(d) to section 6(c)(`` ...such regulations shall
apply in any State which has entered into a cooperative agreement
pursuant to section 6(c) of this Act only to the extent that such
regulations have also been adopted by such State'').
Response: The approach NMFS takes in this final rule aims to
recognize and encourage state and local programs wherever NMFS finds
them adequate. Nothing within the ESA would give NMFS the authority to
delegate the functions suggested, unless a state had the full set of
authorities required under section 6 of the ESA for state
``assumption'' of a program. No state has as yet met those
qualifications, which would include having all authorities necessary to
conserve the listed species
[[Page 42435]]
(such as the ESA provides through section 9, etc.). Therefore, the
cited text of section 4(d) does not apply.
Comment 66: Another commenter suggested NMFS lacked authority to
``delegate'' scientific research permit authority to the states.
Response: As discussed in response to an earlier comment, this
final rule does not delegate permit authority to states. For a subset
of all research activities, this final rule does not apply take
prohibitions, leaving those research activities subject only to state
permitting. For other research, ESA constraints are still in place and
researchers should seek ESA section 10 permits (for instance, for
research in which private parties intentionally take listed fish.)
Comment 67: Several comments assert that the ESA 4(d) rules will
result in takings of private property. One asked that the rule provide
greater flexibility for redevelopment to prevent takings of private
property.
Response: The legal effect of this final rule is to prohibit take
of threatened salmonids. Complying with that mandate will certainly
cause some changes in land management and use and that may affect the
economic value of certain activities on the land to a greater or lesser
extent--depending on the circumstance. This final rule does not, on its
face, prohibit property use in any way that would rise to the level of
a constitutional taking, nor does NMFS believe that the adjustments
necessary to avoid taking threatened salmonids will be so draconian as
to amount to a constitutional taking in any case.
Although NMFS does not agree that this final rule would likely
cause a constitutional taking of property, NMFS did intend that the
development limit should be broadly available and has amended and
clarified the regulation to accomplish that purpose, including
specifically naming redevelopment as one of the activities that
individual ordinances could cover within the limit.
Comment 68: Many commenters desired that NMFS clarify the status of
the limits: either wanting to be sure they are not prescriptive, or
believing they should be hard requirements. Commenters also wanted to
know if activities outside a limit constituted a violation of the rule.
Response: The limits are not prescriptive. They are not even
enforceable requirements; rather, an entity wishing assurance that its
actions are consistent with the ESA may take the necessary steps--as
outlined in the regulations--to come within a limit on the take
prohibitions. No enforcement action can be taken based on a charge that
someone has failed to follow a limit. Enforcement actions must allege
(and ultimately prove) that a listed fish has been taken.
NMFS understands that some commenters would prefer the agency to
promulgate specific, detailed regulations to govern particular sectors
of activity. For a variety of reasons, NMFS has not chosen that course
at this time. Specific proscriptions are an effective protective
mechanism where, as with threatened sea turtles, a very specific cause
of mortality can be addressed with precision. In the case of Pacific
salmonids, where impacts are caused by a large array of activities and
where the circumstances leading those impacts to constitute a take are
extremely site- or circumstance-specific, NMFS believes it extremely
difficult to design a single set of prescriptive rules to cover all of
those situations. In addition, prescriptive regulations would likely
impose unnecessary costs on some individuals. This is because state,
local and individual strategies for avoiding take can be more closely
adapted to the local geography or fishery opportunities than can rules
that cover an entire landscape. Thus they are equally as effective (or
more so) at avoiding take of listed species and less costly than
regionwide, blanket prescriptions. The approach taken in this final
rule, recognizing limits but not requiring all entities or actors to be
within a limit, offers an opportunity to test particular combinations
of approaches without requiring everyone to invest in them immediately.
Finally, as noted elsewhere in these responses, once recovery planning
is complete it may identify specific areas needing more prescriptive
attention.
Comment 69: Numerous comments suggested that the rule intrudes
impermissibly on state water law. Commenters questioned NMFS'
understanding of western water law and authority to regulate water.
Response: First, as discussed elsewhere, this rule does not
directly regulate water use or water rights in any way. Rather, water
diversion was identified as an activity likely to result in take under
particular circumstances. There is nothing in the ESA that would carve
water use out of the bundle of activities that might lead to an
enforceable take of salmonids, nor that would excuse senior water users
from responsibility for any take that occurs as a result of their
actions. NMFS does not disagree that on a case-by-case basis, questions
or priority may be germane to determining causal responsibility for
particular impacts. In ``A Citizen's Guide to the 4(d) Rule'' (NMFS,
2000), NMFS provides more information on how water users may evaluate
the level of risk of take associated with their diversions and explores
options for reducing that risk.
Comment 70: One commenter asked NMFS to clarify whether ESA section
7 compliance ``is a substitute for'' compliance under the rule. Another
requested that NMFS include an explicit limit for any entity whose
actions have been the subject of an informal consultation in which NMFS
has concurred that the action is not likely to adversely affect the
threatened species.
Response: Section 7 compliance is an adequate substitute for
compliance under this rule. So long as an entity is acting within a
completed formal ESA section 7 consultation and compliant with terms
and conditions imposed, if any, then section 7(o)(2) provides an
exception to the prohibitions on taking. Actions subject to informal
consultation have a very low probability of take and are thus in the
category of activities that do not need to pursue a limit.
Comment 71: Take prohibitions should be applied to California's
Central Valley, especially the Yuba River area.
Response: The Central Valley steelhead ESU is subject to this final
rule. NMFS expects to propose ESA 4(d) protections for the Central
Valley spring chinook ESU (listed in September of 1999) within the
coming months. Meanwhile, that ESU will benefit from habitat protection
afforded by steps taken to avoid taking Central Valley steelhead.
Comment 72: One commenter stated that contrary to the Executive
Order on Federalism (E.O. 13132), this final rule's intervention
(monitoring and reporting/adjustment of limitations) in state and local
land use governance exceeds NMFS' authority by unnecessarily infringing
on state sovereignty. Another suggested that the final rule should
state that NMFS is not requiring consistency between state and local
regulatory programs and objectives of the ESA.
Response: NMFS does not agree that this rule intrudes upon state or
local authorities or sovereignty. This rule does not require states to
undertake any particular set of actions. It requires that states (like
all other actors) refrain from taking threatened salmonids. It provides
one mechanism that actors (including states for some of the limits) may
pursue to ensure that they do not violate take prohibitions. A state
could instead choose to pursue ESA section 10 permits. Where there is a
Federal nexus, state actions may receive ESA scrutiny and legal
assurance through an ESA section 7 consultation initiated by the action
agency. Or, in appropriate cases,
[[Page 42436]]
a state may determine in its own judgement that particular activities
do not carry a risk of taking listed fish, or it may modify its
activities in such a way as to reduce any risk of take to an acceptable
level.
Comment 73: One commenter argues that the VSP paper is inconsistent
with the statutory requirements of the ESA, because of the statement in
the preamble to the proposed rules that a ``viable population threshold
refers to a condition where the population is self sustaining, and not
at risk of becoming endangered in the foreseeable future.'' The
commenter suggests this implies a threatened species can be allowed to
remain in threatened condition perpetually, and still be considered
viable.
Response: The commenter has identified an imprecise
characterization that was included in the preamble to the proposed
rules. This statement has been removed. As explained in response to
other comments on VSP, the VSP paper does not attempt to define
``threatened'' or ``endangered'' under the ESA.
Comment 74: Some commenters stated that NMFS is abusing its
discretion by not invoking section 9 prohibitions, and instead relying
upon promised conservation efforts and future actions that are not
currently operational.
Response: This final rule relies upon a determination that a
conservation program approved for a limit of the take prohibition has a
high degree of certainty that it will be implemented. NMFS may require
a commitment to mitigate if implementation of a program is terminated
prior to completion.
Comment 75: One commenter asserted that NMFS should not or cannot
incorporate guidance by reference unless it has undergone ESA section 7
analysis.
Response: First, because of modifications made in response to
comments, this final rule incorporates far fewer documents by
reference. Second, while there is no requirement for a section 7
consultation on such documents, those referenced in the final rule have
been analyzed to ensure that actions under them will not appreciably
reduce the likelihood of survival and recovery of the listed ESUs in
the wild.
Comment 76: One commenter wanted the rules modified to prohibit
Federal agencies from activities that ``take'' threatened salmonids.
Response: In most cases this final rule does not specifically
address Federal agency actions. Once take prohibitions are in effect,
they apply to all actors--Federal and non-Federal alike. Second, the
ESA requires that Federal actions be assessed under section 7(a)(2),
and nothing written in a 4(d) rule would excuse that obligation. Once
NMFS has issued a biological opinion and incidental take statement for
Federal agency actions, section 7(o) of the ESA relieves the agency of
liability for take.
Comment 77: One commenter asserted that the rules could make the
controllers of certain activities (such as noxious weed control)
vulnerable to third-party lawsuits. Commenters expressed concern about
municipal and irrigation district liability for issuing permits that
result in take. One commenter stated that municipal entities cannot be
held liable for take if the entity does not have discretion in issuing
a permit.
Response: The first commenter is correct that under the ESA the
take prohibitions are enforceable by NMFS or by third parties. This
final rule does not create any enforcement routes not specified in the
ESA. The take prohibitions apply to all actors, so municipalities and
irrigation districts certainly face the possibility of liability;
actual liability would depend on specific factual circumstances and the
degree of connection between the permit and the take that actually
occurs. As to the suggested legal interpretation that a municipal
entity's lack of discretion in deciding to issue a permit would be an
absolute defense to liability, NMFS believes that question must be
addressed in the specific enforcement context in which it arises.
Comment 78: One commenter noted that in cases where documents
create new legal rights or duties, they are considered ``substantive
rules'' and must be either published in the Federal Register or be
incorporated by reference through the Director of the Federal Register.
Therefore, NMFS should clarify how subsequent amendments to these
referenced documents will be treated.
Response: There are seven documents referred to in the regulatory
text of this final rule. The purpose of making these documents
available to the public is to inform governmental entities and other
interested parties of the technical components NMFS expects to be
addressed in programs submitted for its review. These technical
documents provide guidance to entities as they consider whether to
submit a program for a 4(d) limit. The documents represent several
kinds of guidance, and are not binding regulations requiring particular
actions by any entity or interested party. NMFS will continue to review
the applicability and technical content of its own documents as they
are used in the future and make revisions, corrections or additions as
needed. NMFS will use the mechanisms of this final rule to take comment
on revisions of any of the referenced state programs. If any of these
documents is revised and NMFS relies on the revised version to provide
guidance in continued implementation of the rule, NMFS will publish in
the Federal Register a notice of its availability stating that the
revised document is now the one referred to in the specified 223.203(b)
subsection.
Comment 79: One commenter suggested that NMFS clarify the
regulation regarding withdrawal of a take limit, believing those in the
proposed rule to be unnecessarily harsh.
Response: NMFS has modified the language throughout this final rule
to clarify this point.
Comment 80: One commenter stated that the final rule should be non-
severable, so that if any or all limits are overturned in a legal
challenge, the take prohibitions will not remain in effect. Another
suggested that no take prohibition should be imposed until broad limits
are available for virtually all sectors of human activity.
Response: A fundamental precept of this final rule is NMFS'
determination that the subject ESUs require 4(d) protections. Given
that, it would be inconsistent with NMFS' ESA responsibilities to the
threatened fish to defer any protections in that manner. NMFS has
clarified this point by making it explicit that the agency intends the
provisions of this rule to be severable.
Comment 81: Because NMFS broadly applies PFC as standards with a
regulatory effect, PFC guidance and supporting science should be
subject to public notice and comment before it is formally applied to
ESA 4(d) limitation approvals.
Response: PFC requires the maintenance of habitat functions
essential to the survival and recovery of listed salmonids. As such,
the use of the PFC approach as an analytical tool adds no standard to
that already established in the ESA, but rather assists NMFS and the
users in evaluating effects of activities on conservation of the
species.
Comment 82: One commenter asked NMFS to clarify whether the take
prohibition applies throughout the range of the ESUs or only in
designated critical habitat. Another asserted that NMFS has created a
de facto extension of critical habitat.
Response: The take prohibition applies throughout the range of the
affected ESUs. Critical habitat designation gives guidance to Federal
agencies, and is not directly linked to ESA section 4(d) in any way. As
to the
[[Page 42437]]
assertion that the rule creates ``de facto'' critical habitat, NMFS
must respectfully disagree. Contrary to the commenter's perception,
this rule does not suggest that ``highly burdensome and expensive `safe
harbors' are what it takes to avoid ESA section 9 take liability.'' The
rule provides one method of ensuring that no ESA section 9 take
liability accrues, but there are other methods such as section 10
permits. Or, an actor may determine in its own judgement that
particular activities do not carry a risk of taking listed fish, or
modify its activities in such a way as to reduce any risk of take to an
acceptable level.
Direct Take
Comment 83: Some commenters contended that under the ESA, and court
decisions interpreting it, NMFS does not have the discretion to
``allow'' or ``authorize'' direct take of listed species through 4(d).
The commenters cite cases in which the courts have determined that FWS
could not authorize hunting of threatened wolves or grizzly bears
unless it had first determined that ``population pressures within the
animal's ecosystem cannot otherwise be relieved.''
Response: In these rules the Secretary is making an initial
determination as to what protective regulations are ``necessary and
advisable to provide for the conservation of'' the listed salmonids. In
making that determination, the Secretary is not required to impose take
prohibitions. In fact, section 4(d) goes on to state that ``[t]he
Secretary may by regulation prohibit with respect to any threatened
species any act prohibited under section 9(a)(1)...'' Thus, the
Secretary has discretion to assess the status of the listed ESUs and to
determine, as he has here, that blanket application of the take
prohibitions is not necessary and advisable, and to describe the
circumstances in which take prohibitions will not be applied. The
Secretary has found that in certain circumstances, activities are
sufficiently regulated by other entities or processes that Federal take
prohibitions are not necessary and advisable.
In a variety of circumstances, take prohibitions might not be found
necessary and advisable to provide for the conservation of a threatened
species. For instance, if a threatened species is located almost
exclusively on Federal lands and impacted largely by a Federal activity
on those lands, the Secretary might determine that section 7
consultations will provide all the protections necessary to allow the
species to recover. Or, a threatened species might be threatened
because of negative impacts from a narrow class of human activity. In
that circumstance, the Secretary might choose to impose prescriptive
regulations tailored specifically to alter those activities in a manner
that would allow the species to recover.
More importantly, 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 intentional (directed) impacts. Situations in
which this final rule would limit the application of take prohibitions
for intentional taking of threatened salmonids are extremely limited
and consistent with the conservation and recovery goals of the ESA.
Scientific research activities conducted by fisheries experts, in
accord with specific guidance, and permitted by a state, can be within
the limit. Harvest activity will have direct impacts in very few
situations--generally where the status of the affected population is
already considered viable, even though the status of the larger ESU is
not. Taking listed broodstock for artificial propagation might occur
for conservation purposes (or, only after the species' conservation
needs are met, for secondary purposes such as fisheries).
Comment 84: A few commenters stated that in excusing direct take
through harvest, NMFS is placing a far more demanding burden on other
sectors (such as land use) in terms of minimizing and avoiding
incidental take. They asserted that the demands/standards should be
equivalent.
Response: This final rule is far from ``excusing direct take
through harvest'' in any blanket fashion, as the comment may be read to
suggest. Rather, in setting out the standards by which any fishery
harvest program will be judged, NMFS has emphasized the means by which
a management scheme maintains or achieves viable status for a
population rather than on the specific mechanism by which that impact
may be incurred. This final rule does not give a pass to any specific
management plan at this time; each plan must be made available for
public comment and reviewed against the standards for an Fishery
Management and Evaluation Plan (FMEP). NMFS anticipates few instances,
especially in the early stages of recovery, where such plans will
include impacts targeted on threatened salmonids.
The standards by which NMFS will judge the suitability of any
program for a limit are the same, whether the program manages fishery
harvest or some type of land management activity. In both instances,
such a program may have some impact on the listed ESU, but at a level
that will not appreciably reduce the likelihood of its survival and
recovery in the wild. Because current habitat conditions are in most
cases far below those needed to support viable populations in the wild,
additional impacts on habitat must be carefully constrained and in many
cases, accompanied by mitigative measures.
Comment 85: One commenter stated that the proposed rule does not
(but should) address commercial harvest and noted that NMFS recently
increased the allowable commercial take of salmon which will
unavoidably include some listed fish.
Response: The prohibition against take applies to all activities
subject to U.S. jurisdictions, including commercial, recreational, and
tribal harvest. The commenter refers to commercial harvest in the
marine context, which is evaluated through section ESA 7 consultations.
Any commercial activity in non-ocean fisheries would have to be
governed by an FMEP in compliance with all of the standards of these
rules.
NEPA
Comment 86: Some commenters wanted NMFS to clarify the extent to
which NEPA applies to the ESA 4(d) rules.
Response: NEPA applies to the ESA 4(d) rules and, as the proposed
rule states, NMFS completed environmental assessments (EAs) for this
action. Those EAs were made available upon request and on NMFS' web
site during the comment period.
Comment 87: Several commenters suggested that the EAs failed to
examine a full range of alternatives (such as the Oregon Plan) or that
they did not adequately discuss and evaluate the impacts of the
proposed action.
Response: While none of the alternatives focus specifically on the
Oregon Plan by name, Alternative B contemplates that a state ``would
have developed a fully adequate comprehensive salmon conservation plan
...to ameliorate all factors for decline for ...an ESU.'' The EA
assesses what impacts a fully adequate plan would have on the
environment, assuming that NMFS recognized such a plan by not applying
the take prohibitions to actions in conformance with it. NMFS has
reexamined the EAs in light of these comments and believes they
explored an appropriate set of alternatives.
Comment 88: One commenter noted that NEPA requires a quantitative
assessment of consequences of the proposed rule and that agencies
should
[[Page 42438]]
ensure the scientific integrity of discussions and analyses in NEPA
documentation--including explicit reference to the sources relied upon
in making the determination.
Response: The comment would be appropriate to an Environmental
Impact Statement (EIS). However, an EA should not contain long
descriptions or detailed data. Rather, it should contain a brief
discussion of the need for the proposal, alternatives, and the
environmental impacts of the proposed action and the alternatives.
Hence, NMFS believes the level of detail provided is adequate for an
EA, which is expected to be a concise, brief document.
Comment 89: Some commenters asserted that the ESA 4(d) rules will
allow significant negative impacts from logging, water withdrawal,
agriculture, etc. to continue; hence, NMFS should draft an EIS
disclosing these significant impacts. Others stated that the simple act
of proposing the 4(d) rules required documentation in an EIS and that
the final rules should be delayed until such an EIS has been written.
Response: While such activities may have significant negative
impacts on the human environment, they do not occur as a result of the
ESA 4(d) rules. The comment argues for regulations that will reduce
those negative impacts. As the EAs reflect, the take prohibitions will
do that. While the commenters may question whether the take
prohibitions are the best tool for reining in those negative impacts,
the final 4(d) rules as written do not cause any of those impacts.
Therefore, no EIS is required for the 4(d) rules.
Take prohibitions are the sole legally enforceable component of
these 4(d) rules, and will impact the environment in a positive manner,
phasing in over a long period of time (especially with regard to
habitat impacts). The Council of Environmental Quality regulations make
clear that the fact that an action will have net beneficial
environmental impacts does not excuse preparation of an EIS where there
are also significant negative impacts (40 CFR 1508.27--definition of
``significantly''). In this case the EAs reveal no significant negative
environmental impacts, and NMFS believes the EAs satisfactorily address
NEPA. Economic impacts need be evaluated only when required as part of
the process of preparing an EIS, not as a reason for doing one. (See 40
CFR 1508.14, ``This means that economic or social effects are not
intended by themselves to require preparation of an environmental
impact statement. When an environmental impact statement is prepared
and economic or social and natural or physical environmental effects
are interrelated, then the environmental impact statement will discuss
all of these effects on the human environment.'') Finally, a belief
that the take prohibitions do not go far enough to stop activities that
harm the environment is not an argument for an EIS.
Comment 90: One commenter stated that NMFS incorrectly asserts in
the EAs that all environmental effects resulting from actions that
respond to the ESA 4(d) rule are the independent analytical burden of
state and local governments and NMFS will not need to consider or
address them. They further stated that NMFS must grapple with the
environmental effects of its proposed actions, many of which will be
negative for irrigation, noxious weed control, use of pesticides,
livestock grazing, etc.
Response: NMFS agrees that this statement in the EAs should have
been drafted more clearly. It must be read in the context in which it
appeared. The immediately preceding sentence stated ``In addition, any
future regulation, policy, program, or plan that NMFS feels is
protective of [listed salmonids] and for which NMFS limits the section
9(a) prohibitions, will further reduce the impacts of the 4(d) rule.''
In that context, the following modified statement would have been
clearer: ``All of the potential impacts attributable to any future
limits will be due to those state or other governmental regulations,
policies, programs, or plans, rather than to the 4(d) take
prohibitions.''
Economics/Regulatory Flexibility Analysis
Comment 91: Several commenters raised issues related to E.O. 12866,
and stated that NMFS should do a cost/benefit analysis on the
promulgation of this rule.
Response: NMFS has prepared a Regulatory Impact Review (RIR), which
is available on our web site at www.nwr.noaa.gov. Some of the comments,
however, were based on a misunderstanding of the legal effect of this
4(d) rule and were made in the belief that the rule mandated compliance
with particular limits. That is not so; this 4(d) rule does not (for
instance) mandate watershed conservation plans. This final rule
provides a limit on the take prohibitions for habitat restoration
activities consistent with watershed conservation plans that meet
certain standards, but does not require any person or entity to prepare
watershed plans or pursue that limit; they may avoid violating the take
prohibition by whatever mechanism they choose.
Comment 92: One commenter stated that in addition to demonstrating
how each limit contributed to recovery, NMFS should discuss economic
and social impacts of each limit.
Response: It is NMFS' responsibility to assess the economic impacts
of the regulation overall; those impacts accrue from the take
prohibition, not from the limits. NMFS completed an initial regulatory
flexibility analysis (IRFA) and made it available for public comment
through the proposed rules. Based on comments received, NMFS has
broadened many of the limits to make them available to more
jurisdictions, or to simplify the processes associated with them. For
instance, the road maintenance limit is now available to any state,
city, county or port. The development limit is available for any city,
county, or regional ordinances or plans that cover development, or
categories such as wetland or shoreline regulation. NMFS has
supplemented the IRFA to consider some additional categories of
economic activity, such as real estate, as well. The Final Regulatory
Flexibility Act concludes that at the present time there is no legally
viable alternative to the modified rule that would have less impact on
small entities and still fulfill the agency's obligations to protect
listed salmon and steelhead.
Comment 93: One commenter stated that NMFS should (and failed to)
consult with every state and local entity regarding effects of the
rules on those entities.
Response: The huge number of such entities within the geographic
range covered by this rule makes such consultation far beyond NMFS'
resources. However, NMFS held 25 public hearings, accepted comment on
the rules for 60 days, and after publishing the proposed rules, held
three workshops for state and local government officials in Olympia and
the Tri-Cities in Washington and in Salem, Oregon. More than 150 city,
county, and state jurisdictions participated in these workshops.
Comment 94: One commenter stated that the IRFA was inadequate in
its analysis of alternatives, and that it ``fails to even list'' the
small businesses related to residential and commercial development in
its Table of Sectors.
Response: NMFS stands by the IRFA and affirms that it presents as
much information on the possible effects of the take prohibition as
could be obtained through any reasonable means. Moreover, comments were
solicited on the proposed rules, but NMFS received none suggesting
additional sources of relevant data. The IRFA Table of Sectors
[[Page 42439]]
included Heavy Construction and Highway and Street Construction, which
would encompass a large proportion of the activity related to
residential and commercial development. We have also added information
on real estate and rental leasing to the Final Regulatory Flexibility
Analysis. In addition, the RIR discusses the implications of the 4(d)
rule in the urban setting--including activities associated with
residential and commercial development.
Comment 95: One commenter stated that an independent third party
should perform an analysis of the ESA 4(d) rules' economic impacts
using economic information developed by the Federal Reserve. The
commenter further stated that provisions for landowner compensation and
exemption from property tax assessments must also be included as part
of this rule.
Response: There is no requirement for third party analyses, nor
that NMFS use information from any particular source in its analyses.
In fact, NMFS has searched broadly for economic information that might
provide more quantitative estimates of the potential costs of avoiding
take. The Federal Reserve does not develop such data. NMFS has no
authority to provide for landowner compensation or to alter property
tax assessments. One of the reasons for the approach taken in this
final rule is NMFS' hope that by working with local and state
government entities toward comprehensive ESA solutions, there will be
smaller impacts on individual actors than might accrue from take-
avoidance strategies they might otherwise adopt. Also, as is the case
for small landowners under the Forests and Fish Report strategy adopted
by Washington and recognized in this final rule, in some circumstances
local or state governments may elect to provide offsetting
compensation.
Comment 96: Several commenters disagreed with aspects of the IRFA
prepared for the proposed rules. A major concern was that the rule
requires extensive reporting and paperwork.
Response: This final rule requires only one thing: that actors
refrain from taking listed fish. That performance standard does not
require reporting. While taking advantage of a limit does require some
level of paperwork, that course is not required; an individual or
entity may choose simply to modify its actions to avoid take.
Nonetheless, NMFS is aware that in some circumstances the paperwork
burden is likely to increase and we stand ready to help streamline the
process, give technical advice, and in general decrease that burden
wherever we can.
Recovery/Delisting
Comment 97: Many commenters raised issues regarding the timing of
and relationships between ESA 4(d) rules and recovery planning. Several
stated that NMFS should move forward quickly to develop recovery plans
for listed species. Some requested that NMFS publish de-listing goals
concurrent with the publication of the final 4(d) rules or withdraw the
4(d) rules until a recovery plan was complete. Related comments
questioned whether, in the absence of recovery goals, NMFS could
adequately assess the contribution to recovery made by the programs
approved as limits on the take prohibition. Other commenters wondered
whether the establishment of de-listing goals would require NMFS to
reevaluate limits already approved or change the standards for
evaluating additional limits. One commenter expressed concern that
future recovery plans would simply ``rubber stamp'' 4(d) rules and
their limits.
Response: Recovery planning, as required by ESA section 4(f), is
one of NMFS' highest priorities, and NMFS agrees that it is important
to move forward quickly to establish recovery plans for listed species.
NMFS does not agree that it is either necessary or advisable to publish
de-listing goals and final recovery plans concurrently with, or prior
to, the final 4(d) rules.
There are no statutory or regulatory requirements regarding the
timing or relationships between 4(d) rules and section 4(f) recovery
plans. In fact, the basic structure of the ESA itself provides that the
protective mechanisms of sections 7 and 10 take effect upon the listing
of a species as threatened or endangered while recovery planning
follows its course through subsequent activities. Recovery plans will
provide biological goals for recovery and identify an entire suite of
actions needed for recovery. Thus, they may provide a more specific
framework for future 4(d) rules or amendments, but the essential
protective function of 4(d) rules is independent of recovery plans;
that function is to prohibit take of listed species where needed. If
the 4(d) rules were not promulgated until de-listing goals were
developed or recovery plans completed, the species would be placed at
unacceptable risk, and more stringent and costly measures would be
necessary to save them.
Moreover, by applying the VSP and PFC concepts it is possible to
make judgments about the contributions certain programs make to
recovery. These judgments will not prejudice the comprehensive recovery
planning process.
For habitat actions, NMFS may find that it is not necessary or
advisable to apply the take prohibition to programs that will help
attain or protect properly functioning habitat. For FMEPs, NMFS may
find it is not necessary or advisable to apply the take prohibition
when the program contains specific management measures that adequately
limit take and otherwise protect the ESU. For Hatchery and Genetic
Management Plans (HGMPs), NMFS may find that it is not necessary or
advisable to apply the take prohibition when a plan is designed to
minimize and adequately limit take and promote species conservation.
NMFS believes that these standards are all consistent with recovery,
and expects that most programs approved as limits will provide a
foundation for later recovery planning measures. NMFS also anticipates
that the VSP and PFC concepts will continue to evolve and provide the
analytical framework for evaluating potential limits and recovery
measures.
Through the process of recovery planning, NMFS may develop more
specific information about measures needed for recovery or about
specific areas needing more prescriptive attention. In addition, each
take limit incorporated into the 4(d) rules includes provisions for
continued review of its implementation and effectiveness. Thus, NMFS
intends to continually reevaluate the limits. If these evaluations, or
information developed through recovery planning, or any other
information, indicates that a limit is inadequate for recovery, NMFS
will revisit the limit.
Finally, NMFS is moving forward as quickly as resources allow to
develop recovery plans. NMFS has appointed Technical Recovery Teams
(TRTs) for Puget Sound and for the Willamette/Lower Columbia River
Basins and Southwest Washington. These teams have begun to identify
delisting goals. To conduct the more policy-oriented aspects of
recovery planning, NMFS will work with state, local, tribal, and
private entities to craft a recovery planning process suited to
specific areas and situations. Formal recovery planning efforts will be
expanded to additional geographic domains as resources permit.
Comment 98: Several commenters addressed the issue of federal trust
responsibilities to tribes in developing protection and conservation
goals, plans, and measures. These commenters held that NMFS needs to
make every effort to ensure that treaty rights and trust
responsibilities are met through its
[[Page 42440]]
regulatory actions, and that thresholds, goals, and recovery plans
support healthy, productive, and harvestable fish populations.
Response: NMFS approaches the ESA 4(d) rules as a vital component
of conserving the species until the protections of the ESA are no
longer needed. These protections will no longer be needed only if the
abundance of fish is sufficient to satisfy treaty fishing rights and to
fulfill the trust obligations of the United States.
Cumulative Impacts
Comment 99: A number of commenters questioned the reasoning behind
NMFS including in the take guidance a category of activities that,
while individually unlikely to injure or kill listed salmonids, may
collectively have significant detrimental impacts. Commenters asserted
that regulating such activities was beyond NMFS' purview. Others
questioned how NMFS would enforce the prohibitions when take resulted
from such activities.
Response: NMFS agrees somewhat with this comment. The discussion of
activities that do not cause take individually but that cumulatively
may have significant detrimental impacts on salmonids was intended to
be advisory and informative in nature and no enforcement actions in
response on these activities were being contemplated. The category of
activities raised a number of concerns however, and the language has
been struck from the rule. Nonetheless, it is important to note that a
myriad of decisions made by individuals and institutions on a daily
basis, while negligible in the individual case, may have, in the
aggregate, a significant detrimental impact on the ecosystem processes
that support salmon and steelhead.
Comment 100: Many commenters raised the issue of cumulative
impacts. Some expressed concern that the 4(d) proposed rules did not
assess the cumulative impact of all the take limits combined. Some also
expressed concern that the individual take limits did not address
cumulative impacts of activities covered under that limit. Several
commenters requested that the final rules include an analysis of
cumulative impacts as well as a mechanism for evaluating cumulative
impacts caused by any future take limits. One commenter asked how and
when NMFS would provide opportunities for the public to review and
comment on ESU-wide assessments of cumulative take.
Response: The suggestions regarding cumulative impacts have great
merit, and NMFS is moving toward implementing a method for assessing
total take across broad sectors. That function, however, would not be
specific to the 4(d) context. Impacts on listed species accumulate from
natural conditions as well as from illegal and unauthorized take and
from actions to which the take prohibition does not apply because they
fall in the realm of some other ESA mechanism (section 10 permits;
section 7 consultations, or specific provisions of a 4(d) rule).
Cumulative impact assessment is problematic because there are very few
methods for adequately assessing cumulative impacts of habitat-
modifying activities. Nonetheless, NMFS has explicitly incorporated
consideration of cumulative impacts into the 4(d) rules where feasible.
For example, FMEPs will evaluate the cumulative mortality of all
fisheries, and HGMPs will track the number of listed fish taken as
broodstock. In addition, NMFS believes that by requiring habitat-
modifying activities within a limit to attain or maintain properly
functioning condition, and all activities within a limit to contribute
to viable salmonid populations, cumulative impacts are, to an extent,
accounted for. Moreover, during the process of developing comprehensive
recovery plans, NMFS and recovery teams will address the issue of
cumulative impacts more systematically. The public will have the
opportunity to comment on ESU-wide assessments of cumulative levels of
take during the recovery plan public review process.
Comment 101: A number of commenters recommended ways for NMFS to
assess cumulative effects. One commenter asserted that meaningful
assessments of cumulative risk at the ESU level would require linkage
between VSP and PFC and development of a common method for evaluating
the effects various activities have on populations and habitats.
Another urged that NMFS adopt comprehensive habitat productivity
standards to evaluate cumulative effects of habitat programs granted
limits on the take prohibition. One commenter suggested that NMFS
require all habitat-modifying activities to account for habitat-
modification-related mortality. Another suggested that NMFS focus on
cumulative take rather than dealing with take in its various
permutations individually. Another suggested that the rules should
mandate an annual cumulative take assessment (based on life cycle
stages) for each population in an ESU. In addition, they desired that
NMFS (a) examine mortality in the various populations and determine
whether take from a particular sector is placing them at risk, and (b)
separate human-induced mortality from that attributable to fluctuating
environmental conditions and thereby adjust take regulations to provide
more protection during times of environmental stress.
Response: NMFS agrees that all of these suggestions have great
merit and, as mentioned previously, NMFS is moving toward implementing
a method for assessing total take across broad sectors. Also, as
mentioned earlier, assessing cumulative impacts is a difficult process.
In most cases, there are no adequate standards for habitat productivity
and developing them is a complex and long-term task. NMFS intends to
work with co-managers to develop the necessary standards and assessment
techniques. In addition, during the ESA recovery planning process, NMFS
will assess the mortality burdens for each ESU and life-cycle stage.
Comment 102: One commenter asserted that limits for urban
development should be analyzed within the cumulative impact context.
Response: NMFS agrees that cumulative effects should be an
important consideration in analyzing the effects of MRCI development
and redevelopment. To the extent that NMFS must prioritize the
evaluation process, comprehensive MRCI plans with relatively broader
scopes of activities, authorities, effects, and geography (and
therefore greater cumulative effects) will generally be evaluated
before plans with relatively smaller scopes. Applicants with smaller-
scale plans should take particular care that their effects analyses
take cumulative impacts into account.
Comment 103: Several commenters questioned whether NMFS had
completed requisite cumulative effects analysis under ESA section 7 and
NEPA.
Response: NMFS has complied with section 7 consultation
requirements on the adoption of the 4(d) rules by consulting both
internally and with FWS. In addition, NMFS has completed an EA for this
action pursuant to NEPA.
Comment 104: One commenter asserted that the cumulative impacts
consideration required by Sec. 223.203(b)(8)(iii)(A) is unreasonable
due to lack of clear scientific consensus on how to do so.
Response: Cumulative impacts analysis has been routinely required
by NEPA, ESA, and many other Federal and state authorities for several
decades and NMFS does not believe it presents an insurmountable
obstacle to development of acceptable watershed
[[Page 42441]]
conservation plans (WCPs). In fact, it would be difficult to complete
an adequate watershed analysis without having considered cumulative
impacts. NMFS is confident that state WCP guidelines will be able to
offer sufficient technical advice so that entities developing WCPs will
be able to meet the cumulative impacts requirement.
Comment 105: Some commenters held that the rules failed to regulate
activities consistent with their incremental effects, and that the
effect of the rules would be to focus NMFS staff time on urbanized
areas, while greater benefit could be gained by identifying habitat
areas where the most good could be achieved at the least cost, and then
bringing Federal, state, and local resources to bear upon those areas.
Other commenters expressed concern that the rules would
disproportionately regulate the impacts of habitat modification
compared to the impacts of harvest activities.
Response: NMFS does not believe that the 4(d) rules fail to
regulate activities consistent with their incremental effects. The 4(d)
rules ``regulate'' primarily by putting into place the ESA section 9
take prohibitions. This take prohibition applies to all activities,
regardless of their incremental impact on a listed species. The rules
then identify certain activities that already conserve the species and
for which no additional ESA regulation (i.e., take prohibitions) are
necessary. These activities span a broad range and include research,
aiding stranded salmonids, managing harvest and hatcheries, and land
uses such as forestry, development, and road maintenance. NMFS hopes to
continually expand the scope of these limits to encompass additional
activities not currently addressed by limits, wherever such efforts are
biologically warranted.
Limits for Scientific Research and Rescue/Salvage
Comment 106: Several commenters stated that the ESA 4(d) limit for
scientific research activities (research limit) would place excessive
reporting requirements on state fisheries agencies and that these
agencies lacked the funding and staffing to accommodate the additional
workload.
Response: NMFS acknowledges that, as a result of promulgating the
take prohibitions, state fisheries agencies will now have a higher
level of accountability for reporting take of listed salmonids and that
some ESA-related reporting will be new for these agencies. However, all
of the affected agencies currently oversee research permit processes
for fish sampling in state waters and NMFS believes that the workload
associated with this limit should be comparable with state reporting/
recordkeeping requirements already in place. Much of the information
NMFS is requiring under the research limit is currently generated by
the state's permit process, which presently covers all entities (e.g.,
Federal, academic, private, and other state agency researchers) other
than biologists employed by the state fisheries agency. However, these
agency biologists typically produce research summaries that NMFS
believes could be efficiently translated into the annual state reports
supporting this limit.
Moreover, a major impetus for providing the research limit is to
allow the state fisheries agencies to continue to oversee and
coordinate research efforts for listed salmonids. The ESA's section 10
permitting process does not always facilitate state oversight/
coordination and NMFS believes that it is advisable to minimize
research impacts by streamlining the research review process in a
manner that fosters active participation by state fisheries agencies.
It is worth noting that as a result of previous 4(d) rulemaking (50 CFR
223.204(a)(4)), ODFW has successfully coordinated and reported
scientific takings per a 1997 research limit involving listed coho
salmon in southern Oregon. NMFS will work closely with all of the
affected states and research entities to expand on this success while
minimizing the reporting workload by incorporating existing state
processes into those supporting the 4(d) limit for scientific research.
Comment 107: Some commenters asked whether research involving
direct take of listed salmon and steelhead would still require a
section 10 permit and whether incidental take would be covered under
the ESA 4(d) rule.
Response: Research and monitoring activities involving either
directed or incidental take of the 14 ESUs identified in this rule are
covered by this 4(d) limit. Therefore, state-approved activities
covered by this limit would not need to go through a separate section
10 permit process. However, if the research is not covered by the
research limit, then an applicant would need to obtain an ESA section
10 permit before conducting research that could take a listed salmonid.
Comment 108: Several commenters were confused by the language
describing provisions under ``Continuity of Scientific Research'' and
requested clarification as to what applications were needed and when
take prohibitions would become effective.
Response: As described in the proposed rules, NMFS is concerned
with the potential for disrupting ongoing scientific research,
monitoring, and conservation activities, especially during the coming
summer/fall field seasons. Therefore, the agency is providing a
temporary limit on the take prohibitions to allow such activities to
continue until March 7, 2001 so that the necessary paperwork can be
processed. However, to qualify for this ``temporary'' limit,
researchers must submit a section 10 permit application to the
Assistant Administrator for Fisheries (AA), NOAA by October 10, 2000
for research activities affecting listed fish in any of the 14 salmon
or steelhead ESUs identified in this rule. Applicants would be subject
to take prohibitions only after their permit application is denied,
rejected as insufficient, or the ``temporary'' limit period expires,
whichever occurs earliest. Researchers failing to submit an application
by October 10, 2000 would be subject to take prohibitions beginning on
September 8, 2000 for the seven steelhead ESUs and on January 8, 2001
for the seven salmon ESUs. NMFS will make every effort to respond to
applicants in a timely fashion. However, researchers are advised to
prepare for unavoidable delays that may result from the anticipated
load of section 10 permit applications that will be presented to NMFS.
Parties requesting coverage under the ESA 4(d) limit on scientific
research activities should consult with the ODFW, the California
Department of Fish and Game (CDFG), the Idaho Department of Fish and
Game (IDFG), or the Washington Department of Fish and Wildlife (WDFW)
to determine when related applications are due to these oversight/
coordination agencies. By October 10, 2000, NMFS will expect these
agencies to submit a letter of intent to the AA, NOAA, summarizing the
types of research to be covered under the 4(d) limit for any of the 14
salmon or steelhead ESUs identified in this rule. This letter will
serve as a placeholder for these agencies (and the entities identified
in their letter) until they can submit to NMFS a more comprehensive
assessment of scientific research activities planned for the 2001
research season. Take prohibitions for these applicants would become
effective after their application for the 4(d) limit is either rejected
by NMFS or the ``temporary'' limit period expires, whichever occurs
earliest. Applicants failing to submit a letter of intent by October
10, 2000 would be subject to take prohibitions beginning on
[[Page 42442]]
September 8, 2000 for the seven steelhead ESUs and on January 8, 2001
for the seven salmon ESUs. NMFS will work closely with the affected
state agencies and researchers to select suitable reporting time frames
and minimize the disruption of research efforts.
Comment 109: Several commenters requested that NMFS expand the ESA
4(d) limit on scientific research activities to include research by
tribal fisheries biologists. Others requested that NMFS include a
regulatory obligation for the states and NMFS to include tribes in
reviewing scientific research and monitoring efforts subject to the ESA
4(d) limit.
Response: NMFS has provided a separate 4(d) rule for Tribal Plans
(including research and monitoring activities) (published elsewhere in
this Federal Register issue) the purpose of which is to establish a
process that will meet the conservation needs of listed species while
respecting tribal rights, values, and needs. A tribe intending to
conduct research-related actions that may take threatened salmonids
could submit a Tribal Plan to NMFS for consideration under the 4(d)
rules. In addition, tribes have the opportunity to have tribal research
activities covered under the research limit for salmon and steelhead,
so long as the activities are in accord with state reporting
requirements specified in that limit.
NMFS does not believe it is necessary to include a regulatory
obligation under 4(d) that requires states to include a tribal co-
manager review and concurrence process for research/monitoring
activities. There are ample opportunities--both formal and informal--
for Federal, state, and tribal co-managers to coordinate salmonid
research and monitoring efforts and NMFS will continue to encourage
such collaborative efforts. In addition, NMFS recognizes its
responsibilities to confer with the tribes on ESA issues and will use
this dialogue to ensure that tribal concerns are addressed. NMFS will
make available to interested parties the documents describing the
research and monitoring conducted under either the tribal 4(d) limit or
the salmon/steelhead research limit.
Comment 110: Some commenters stated that the research limit was too
narrowly defined and should be expanded to apply to other state and
non-governmental entities (e.g., state water quality agencies,
watershed councils, and sportsman groups). Others requested that NMFS
clarify what is meant in the research limit by ``oversight'' and
``coordinated.''
Response: NMFS believes that the state fisheries agencies are in
the best position to oversee and coordinate scientific research and
monitoring efforts involving listed salmonids. While other entities
(e.g., other state agencies, academics, consultants, etc.) have
considerable expertise in fisheries research, none have the clear
management responsibility for salmonids that is vested with the state
fisheries agencies. Moreover, NMFS is concerned that expanding this
limit to include numerous entities would hinder the coordination of
research efforts. NMFS encourages coordination as a means to minimize
research impacts on listed salmonids while facilitating data exchange
and interpretation.
NMFS agrees that minor modifications to this limit's description
will help clarify the agency's intent for ``oversight'' and
``coordination.'' For example, with respect to ``oversight,'' NMFS does
not believe that a state fishery agency must directly supervise or
inspect every research project. Instead, NMFS intended that research
efforts covered by the ESA 4(d) limit should merely be identified and
approved by the appropriate state fishery agency. The identification
and approval processes should constitute nominal extensions of the pre-
existing system for obtaining a state research/collection permit. In
addition, NMFS' emphasis on ``coordination'' was to encourage the state
fisheries agencies to establish and improve upon mechanisms for
organizing research and monitoring of listed salmonids. Such
coordination could occur at a state-wide level (e.g., the Oregon Plan
for Salmon and Watersheds), at a level addressing a particular ESU
(e.g., Washington's Hood Canal and Eastern Strait of Juan de Fuca
Summer Chum Recovery Plan), or watershed. No matter what the level,
however, the state fisheries agencies will still need to provide NMFS
with the requisite annual reports. NMFS will continue to work with the
affected states to better define the reporting requirements supporting
this limit, maximize the information being gathered on fish and
wildlife species (while minimizing impacts on threatened and endangered
species), and ensure that sound research proceeds unencumbered by
regulatory/permitting requirements.
Comment 111: Some requested that this limit be made available to
Federal researchers and asked for clarification on the relationship
between this limit and ESA section 10 permits.
Response: NMFS clarifies that Federal research and monitoring
activities could be covered under the research limit. Federal lands
encompass vast areas of salmonid habitat in the Pacific Northwest and
California, and Federal research efforts contribute vital information
about these species. Therefore, NMFS believes it is necessary and
advisable to provide the opportunity for Federal researchers to receive
coverage under the research limit. Such coverage would obviate the need
for an ESA section 10 permit for these Federal researchers. Still, in
deference to the need for close coordination with state and other
efforts (plus the fact that Federal researchers will still need
research and collection permits from the state fisheries agencies),
Federal research will only be covered under the ESA 4(d) limit when
that research is overseen by or coordinated with a state fisheries
agency that is willing and able to report on the Federal research
effort. Also, it is important to note that coverage under the research
limit would 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.
Comment 112: Some commenters contended that NMFS was placing
unnecessary constraints on electrofishing as a sampling technique.
Several requested clarifications and revisions to specific protocols
described in NMFS' ``Guidelines for Electrofishing Waters Containing
Salmonids Listed Under the Endangered Species Act'' (NMFS, 2000a), in
particular they sought revisions in the guidelines pertaining to
numeric standards/settings and documenting crew experience and sampling
history. One commenter requested that NMFS expand the limit and
guidelines to address electrofishing from boats.
Response: NMFS contends that the guidelines are both reasonable and
necessary for the conservation of listed salmon and steelhead ESUs. The
literature is replete with evidence to support NMFS' concerns that
electrofishing can be particularly harmful to salmonids and other
fishes (see review by Nielsen, 1998). Before distributing the existing
guidelines in 1998, NMFS held a workshop and distributed the subsequent
guidelines for peer review. The resulting guidelines reflect reasonable
and prudent measures for minimizing the adverse effects of
electrofishing. NMFS will continue to encourage researchers to use
other less invasive techniques (e.g., traps and snorkeling surveys),
but recognizes that electrofishing has utility, or is the only
practical alternative in certain study designs.
[[Page 42443]]
With respect to specific concerns about the electrofishing
guidelines, NMFS disagrees with most of the issues raised and believes
that only minor modifications are warranted in these protocols. For
example, the agency disagrees with several commenters that requiring
conductivity measurements would impose an onerous and costly burden on
researchers. It is well known that water conductivity is one of the
most critical parameters determining electrofishing impacts and
conductivity meters are both inexpensive and readily available. The
concerns that NMFS is requiring too much documentation (e.g., logging
crew experience and data on sampling results) are also unsound. Most,
if not all, researchers record the time spent (e.g., time counters are
an integral part of most backpack units) and results of electrofishing
surveys (e.g., numbers of fish encountered, injuries observed, site
conditions, etc.). These logs aid fish by helping to improve the
researcher's technique and can form the basis for training new
operators.
With respect to boat electrofishing, NMFS has serious concerns with
this technique because it has even greater potential for seriously
injuring listed salmonids. For example, the technique can employ
electrical output that is an order of magnitude greater than backpack
electrofishing units, and environmental conditions can seriously limit
a researcher's ability to minimize impacts on listed fish (e.g., adult
salmonids in large and turbid stream reaches). NMFS has not developed
suitable guidelines for this sampling technique and will continue to
request that researchers desiring to employ electrofisher boats apply
to NMFS via the ESA section 10 permit process.
Comment 113: Some commenters requested that NMFS clarify which
entities would be covered under the limit for rescue and salvage
actions and better define what constitutes an ``emergency'' under this
limit. One commenter requested that NMFS specifically allow
electrofishing under the rescue/salvage limit.
Response: The regulations pertaining to this limit state that
rescue/salvage can be conducted by ``any employee or designee of NMFS,
FWS, any Federal land management agency, IDFG, WDFW, ODFW, CDFG, or any
Tribe.'' A designee of the listed entities is any individual that the
Federal or state fishery agency, or other co-manager has authorized in
writing to perform the rescue/salvage.
While it is not possible to characterize all scenarios constituting
an ``emergency'' for listed salmonids, fish strandings resulting from
natural or human-induced events are probably the most common type
encountered. For example, an emergency condition may exist as a result
of dewatering (e.g., for irrigation), damming, drought conditions, or
when listed fish become stranded in channels or ponds following a flood
event, landslide, or debris torrent. Chemical spills associated with
industrial effluents or vehicular accidents (e.g., train or automobile
accidents) have also been known to create an emergency for salmon and
steelhead. These are just a few examples of scenarios that the
employees or designees might face. Obviously professional judgement
will need to be applied at the scene of an emergency to determine if
and how listed fish should be rescued.
NMFS concurs that electrofishing is permissible when there is no
better technique for safely removing stranded fish under the rescue/
salvage limit. However, the electrofishing should be conducted in
accordance with NMFS' backpack electrofishing guidelines.
Fishery, Hatchery, and Genetic Management Activities
Comment 114: Some commenters stated that the proposed ESA 4(d)
rules potentially grant broad exemptions for taking listed species in
hatchery programs and fisheries and that these limitations should be
omitted or tightened to better control hatchery and harvest practices.
Response: The final rules establish explicit criteria and standards
that hatcheries and harvest activities must adhere to in order for them
to be eligible for limitations on section 9 take prohibitions. The
criteria include detailed plans, risk assessments, and monitoring and
evaluation and are similar to what has been required for section 10
permits in the past. The Fishery Management Evaluation Plans (FMEPs)
and Hatchery Genetic Management Plans (HGMPs) will be evaluated using
the same standards used to examine section 10 permit applications. The
limits for hatcheries and harvest will not decrease the level of
protection for listed species.
Comment 115: There was general support for the concepts detailed in
the technical document ``Viable Salmonid Populations.'' However, there
was much concern over how to apply these concepts in actuality. A
number of commenters stated that in most cases there would not be
enough information to determine population structure and abundance
thresholds. Many commenters thought VSP should be implemented through
NMFS' recovery planning efforts.
Response: NMFS realizes that a substantial amount of information
needs to be generated in order for FMEPs and HGMPs to be consistent
with the ``Viable Salmon Populations'' technical document. Ideally,
that information would arise out of the technical phase of the recovery
planning process. However, even if all the data are not yet available,
the concepts contained in VSP are valid and will still be used to help
develop and evaluate FMEPs and HGMPs. Determining ``critical'' and
``viable'' thresholds in the management plans allows actions to be tied
to the status of listed fish in a particular population or management
unit. If a population or management unit is at critical levels, actions
must be strictly controlled and not impede recovery. At viable levels,
the population or management unit is healthy and more flexibility
exists for fisheries and hatchery management. NMFS will work with the
co-managers to apply VSP to the greatest extent possible for any given
management unit. As additional monitoring and evaluation are completed
in the future and as recovery plans are developed, the FMEPs and HGMPs
will be revised.
Comment 116: Some commenters suggested that no progeny of listed
fish that were spawned in a hatchery should be considered listed under
the ESA.
Response: Listed fish may be taken into a hatchery for spawning as
a last resort to conserve the species. Before this can occur, an
approved HGMP or ESA section 10 permit must be obtained. The HGMP or
section 10 permit specifies the number of listed fish that can be taken
into the hatchery. The status of the (artificially propagated) progeny
of these fish is determined at the time the species is listed (i.e.,
stated in the final listing determination). If the hatchery program is
part of an ESU where the progeny of listed fish spawned in a hatchery
are considered to be listed, NMFS may proceed through rulemaking to
delist hatchery progeny once an HGMP or section 10 permit is in place.
Comment 117: Some commenters questioned the strategy of restricting
steelhead fisheries to areas where only hatchery-marked steelhead are
expected to occur and prohibiting the retention of listed steelhead. It
was asserted that this policy could be a disincentive for local
recovery efforts because healthy, naturally reproducing populations of
fish could not be utilized if the population recovers.
Response: NMFS agrees that recreational fisheries should not be
[[Page 42444]]
limited to streams where only hatchery fish are present. NMFS intends
to manage fisheries based upon a listed ESU's status and a given
fisheries' impacts on that status. The ultimate goal is to recover and
maintain natural, self-sustaining ESUs so that ESA protections are no
longer necessary. Under the VSP concept, if a steelhead population has
recovered to viable abundance levels, more harvest impacts could be
allowed than would be advisable for an adjacent population whose status
is poor.
Comment 118: Several commenters requested clarification on the
meaning and purpose of sanctuary areas, and some questioned the
rationale for not requiring the designation of sanctuary areas in FMEPs
under the salmon ESA 4(d) rule, but requiring them in FMEPs under the
steelhead 4(d) rule. (Note: the proposed 4(d) rule for salmon (65 FR
170, January 3, 2000) was published separately from the proposed rule
for steelhead (64 FR 73479, December 30, 1999). The two proposed rules
have been combined in this final rule.)
Response: NMFS defines sanctuary areas in the FMEPs as areas that
are closed to fishing. NMFS' intent is to provide areas where juvenile
and adult fish are not exposed to any fishing-related pressure or
mortality (including catch and release fisheries, which can have an
associated incidental mortality). Tributary streams or stream reaches
that are the primary, core areas where listed fish spawn and rear in a
given watershed would be good areas to designate as sanctuaries.
Establishing sanctuary areas is especially important for species
(like steelhead) that can spend several years rearing in fresh water
and may be exposed to multiple fishing seasons. Juvenile salmon are
generally less vulnerable to fishing because they typically emigrate to
the ocean by the time they are one year old. However, some juvenile
salmon (e.g., sockeye) can also exhibit extended freshwater residence.
NMFS agrees that sanctuaries should also be included in the FMEPs
developed for the listed salmon ESUs. The extent of the existing (and
future) sanctuary areas for juvenile and adult fish will be evaluated
on an ESU-by-ESU basis when the FMEPs are reviewed.
Comment 119: One commenter contended that sanctuaries may be
difficult to establish in many California river systems (e.g., Central
Valley streams) and asked how many sanctuaries would be needed to get
NMFS' approval of an FMEP.
Response: NMFS agrees that it may be difficult to designate
sanctuaries in the Central Valley system given that the majority of
historical habitat is now inaccessible to fish. However, there are
other accessible river systems inhabited by the three steelhead ESUs
covered by this ESA 4(d) rule that currently do not offer sanctuary
protection in critical spawning and rearing habitats. The FMEP process
will allow NMFS to work with co-managers in establishing angling
sanctuaries in these areas to further protect and conserve steelhead
while still allowing appropriate angling opportunities to proceed. The
appropriate numbers of sanctuaries will arise out of the FMEP
development process.
Comment 120: Some commenters questioned whether the FMEP process is
necessary for sport angling and contended that developing elaborate
FMEPs is not the best use of limited technical and restoration
resources.
Response: The FMEP process will make it easier to work with the co-
managers in making sure that sport fishing activities comply with the
intent of this limit. While the amount of information that NMFS
requires for FMEP approval will be similar to information required for
an ESA section 10 incidental take permit, the FMEP route provides a
longer-term framework for fisheries management and is thus more
efficient over time in addressing recreational fishing impacts on
listed species.
Comment 121: Some commenters requested that recreational fisheries
in California receive a limit on the take prohibitions because they are
likely to have only minor impacts on listed species.
Response: NMFS recognizes that CDFG has instituted conservative
fishing regulations in many of the steelhead-bearing streams found in
California. These regulations allow for continued angling
opportunities, where appropriate, while providing some level of
protection for listed steelhead through gear, season, and area
restrictions. Although take associated with modern recreational
fisheries has not been identified as a major reason for the depressed
status of many California steelhead ESUs (NMFS, 1996), there is still a
general lack of monitoring from which to derive reliable quantitative
estimates of impacts in selected steelhead streams (e.g., Antelope,
Deer, and Mill Creeks in the Central Valley steelhead ESU). In
addition, take provisions and angling regulations may need to be more
restrictive in areas where habitat conditions are not properly
functioning and angling pressure would exacerbate the risks faced by a
listed population. An approved FMEP would provide the means to identify
these monitoring gaps and open the way for agreements with co-managers
on instituting appropriate measures and securing funding sources.
Comment 122: NMFS should not require FMEP monitoring that is
physically or fiscally impractical.
Response: NMFS agrees with this comment and will make every effort
to work cooperatively with co-managers to identify resource monitoring
and assessment requirements on an ESU-by-ESU basis. The required level
of monitoring will be tied to a population's status and the degree to
which a specific fishery poses risks to that population. There is
sufficient flexibility in the ESA 4(d) rule to accommodate the
immediate staffing and funding shortfalls. One of the integral parts of
the FMEP process, however, will be to identify the level of monitoring
and assessment needed to adequately address the impacts of recreational
angling on listed species in a given ESU. Strategies for prioritizing
monitoring needs based on funding and staffing capabilities will be
stipulated in letter of concurrence NMFS crafts in response to an
approved FMEP.
Comment 123: Several comments addressed the use of barbed hooks in
recreational fisheries for trout and steelhead. One commenter
questioned the scientific basis for disallowing barbed hooks in adult
steelhead fisheries. Other commenters believed that catch and release
mortality could be significantly reduced by requiring the use of
barbless hooks.
Response: The available scientific data have not shown that using
barbless hooks consistently or significantly reduces catch and release
mortality in trout and steelhead fisheries, and the ESA 4(d) rule does
not require barbless hooks in recreational fisheries. However, NMFS
believes certain fishery situations could warrant the use of barbless
hooks to minimize potential impacts on listed fish.
Comment 124: Several commenters were concerned with language in the
ESA 4(d) rules relating to restrictions on resident species fisheries.
Some contended that restrictions should be placed on any fishery
(resident or anadromous species) that substantially affects listed
fish. Others believed the restrictions to be excessive and stated that
NMFS should more fully assess the impacts of resident species fisheries
on listed salmon and steelhead.
Response: All fisheries that potentially affect listed salmon and
steelhead must be evaluated in the appropriate FMEP. NMFS' intent is to
point out the fact that some resident species fisheries can affect
listed fish. In these circumstances, the FMEP must
[[Page 42445]]
include angling regulations for resident species fisheries that
minimize any take of listed species. An FMEP may also include
restrictions on anadromous fisheries to ensure that listed species are
conserved.
Comment 125: One commenter stated the need to clarify certain
definitions used in relation to the hatchery programs. It was asserted
that several hatchery programs still have definitions of ``natural''
fish that seriously obscure the differences between wild and hatchery-
produced fish. The commenter stated that the HGMPs should address this
problem.
Response: NMFS agrees with this comment. Therefore, to clarify,
NMFS generally uses the terms ``natural'' and ``hatchery'' to describe
the origin of anadromous fish following the definitions found in Bjornn
and Steward (1990): hatchery fish are those that, regardless of parent
stock, have been spawned, incubated, hatched or reared in a hatchery or
other artificial production facility. Naturally produced fish are those
that result from natural spawning in streams. As Waples (1991) stated,
the terms wild and natural are used synonymously to refer to naturally
produced fish without regard to the origin of the parent stock.
Comment 126: The HGMP and FMEP templates should be referenced in
the 4(d) rules.
Response: This suggestion has merit and language in this final rule
has been duly altered. The templates are available on NMFS' Northwest
Region website (www.nwr.noaa.gov).
Comments related to the criteria established for FMEPs and HGMPs
Comment 127: Some commenters questioned the assertion in the
harvest limit that at critical threshold levels, harvest actions must
not appreciably increase the genetic and demographic risks facing the
population. They stated that this policy does not ensure the
conservation of listed species and that any populations that are at
critical threshold levels should not be put at risk. They asserted that
harvest should be very restricted or totally eliminated when a
population reaches critical levels.
Response: When a population within a listed ESU is at critical
levels, impacts from fisheries must be strictly controlled. No fishery
will be allowed under the ESA which jeopardizes the continued existence
of an ESU. In some cases it may be necessary to close or curtail
fisheries to protect listed fish. The intent of this language was to
realize that incidental harvest may occur even under a tightly
regulated fishery regime. Anadromous salmonids have a vast migratory
distribution and may be incidentally intercepted in fisheries occurring
in other regions. NMFS will evaluate FMEPs to ensure that the harvest
regime will protect individual populations and allow the ESU to recover
before being approved.
Population-level assessments under the ESA are meant to provide
information on abundance, productivity, structure and diversity
specific to each population, and are essential to determining an ESU's
overall health. However, under some circumstances the ESU as a whole
may be viable even though some individual populations have not fully
recovered. NMFS and the TRTs appointed to help develop de-listing
criteria will determine which, where, and to what degree populations
within an ESU must have ``viable salmonid population'' status to render
adequate ESA protection at the ESU level.
Comment 128: One commenter stated that no transgenic or genetically
engineered fish should be allowed in waters where listed fish reside.
Response: No action that jeopardizes the continued existence of
listed species is permitted under the proposed 4(d) rules or any other
section of the ESA. If NMFS assumes that ``transgenic or genetically
engineered fish'' are not native species and determines that their
introduction into waters where listed fish reside would not help
recover listed species, these fish would likely be prohibited.
Comment 129: Some commenters believed that the final rules should
contain citations that demonstrate the validity (including associated
risks) of supplementation as a tool for recovery. Some organizations
are doubtful that supplementation is effective.
Response: There is considerable scientific uncertainty regarding
the extent to which benefit can be derived from supplementing naturally
spawning populations with hatchery-produced fish. There are well-
publicized examples of domesticated, hatchery-produced salmon and
steelhead having negative effects on natural production (Kalama River-
Skamania summer steelhead). There are also examples where artificial
propagation of the local, indigenous, stock appears to have increased
or sustained the number of naturally spawning fish (Imnaha and South
Fork Salmon River summer chinook, Upper Columbia steelhead, Rogue River
coho). The proposed HGMPs require programs to be designed using the
best current scientific knowledge in order to identify and manage risks
and provide benefits to the listed species. The HGMPs are required to
identify goals, adopt performance standards, and conduct comprehensive
monitoring and evaluation in order to help evaluate supplementation
success and resolve any uncertainties about the practice.
Comment 130: Some commenters stated that artificial propagation has
failed to maintain wild fish populations and all hatchery programs
should be discontinued.
Response: Few of the original artificial propagation programs were
designed to maintain wild populations. By developing and implementing
HGMPs under the ESA, these programs will address wild population
conservation and recovery. The risks and negative effects associated
with artificial propagation programs are being identified and managed.
It is true that artificial propagation has not been able to maintain
wild anadromous fish when dam building, habitat loss, and fishing has
continued at the established pace. Reforming hatchery practices is
advisable, but discontinuing all artificial propagation is not
necessary to restore natural fish under all circumstances. In many
cases, hatchery programs are managed to minimize risks to wild
populations while providing other benefits, such as supplying
harvestable numbers of fish to meet treaty trust responsibilities.
Comment 131: One commenter stated that NMFS should not use HGMPs to
police compliance with court orders.
Response: NMFS cannot approve an HGMP that does not comply with
legal mandates established by statute or court order. This criterion is
intended to remind the applicants that an HGMP must be legally as well
as biologically complete.
Comment 132: Several comments addressed the experimental nature of
supplementation programs and the need for hatchery program goals to
protect genetic diversity and individual wild fish stocks. Furthermore,
specific concerns were raised about the need to ensure that monitoring
and evaluation activities adequately protect listed fish.
Response: NMFS agrees with the general thrust of these comments.
Supplementation programs are viewed as being experimental; they can
vary from program to program depending on the purpose of the program,
the species targeted, stock status, and location. Because of
supplementation's experimental nature, HGMPs assume an adaptive
management approach for such programs by requiring extensive monitoring
and evaluation. These activities must be able to identify deleterious
effects on listed fish so the program can be modified. Furthermore,
[[Page 42446]]
HGMPs are designed to protect genetic diversity in wild populations
(both listed and non-listed) by improving hatchery management,
monitoring, and evaluation.
Comment 133: Some commenters questioned how mining wild fish
populations for broodstock contributes to recovery when a population is
at or below the critical threshold.
Response: When populations reach critical levels and the best
available scientific information indicates that the demographic risks
are greater than the genetic risks, using artificial propagation to
prevent imminent extinction may be the least risky alternative. When
populations are at or below the critical level, the only hatchery
programs NMFS is likely to approve would be for the sole objective of
enhancing the listed species' propagation and survival. If the cause of
the decline is short-term, then the hatchery program could be reduced
once the population exceeds the critical threshold. If the cause for
the decline cannot be remedied in the short-term, the hatchery can act
as a genetic broodstock bank and maintain the population until the
causes for decline can be addressed.
Comment 134: Some commenters had concerns about NMFS' decision
making process in determining whether an HGMP adequately avoids or
minimizes any deleterious effects. They desired to know how the
standards for this determination would be set and sought an exact
description of the monitoring program.
Response: NMFS has developed a detailed HGMP template in
collaboration with scientists from the other state and Federal agencies
and treaty Indian tribes. The template is available on the NMFS
Northwest Region's website at www.nwr.nmfs.gov. The template references
many documents that provide guidance on artificial propagation in terms
of setting performance objectives, identifying, evaluating, and
managing risks, and monitoring results. NMFS' fishery scientists will
review the HGMPs for completeness and adequacy. The HGMPs are also
being used in sub-basin planning and in the Northwest Power Planning
Council (NPPC) funding process where they may be subject to review by
fishery scientists employed by Council staff as well as one or more
layers of independent scientific review. The HGMPs will be available
for public comment and peer review before they are approved. NMFS
believes this process will help ensure deleterious effects are being
adequately managed. However, all hatchery programs pose some degree of
unavoidable risk to natural populations.
Comment 135: One commenter suggested that hatcheries should produce
as many fish as possible and held that there is no scientific basis for
favoring natural fish over hatchery fish.
Response: NMFS strongly disagrees. Hatchery fish have been
identified as one of the factors causing population declines in a
number of ESUs. There is a substantial body of scientific evidence to
show that hatchery fish can harm natural fish by preying on them,
competing with them for food, shelter and mates, displacing them from
their native habitats, and creating other effects.
Comment 136: One commenter stated that NMFS failed to address the
issue of hatchery structures that can block fish passage.
Response: Each HGMP will include a section describing the hatchery
facilities. It will identify passage issues and water withdrawals and
screening facilities. If passage is an issue, it can be addressed
through HGMP implementation. Passage is also evaluated in ESA section
10 permits for hatcheries.
Comment 137: One commenter recommended that hatchery fish be
protected in the 4(d) rules, not just wild fish.
Response: The ESA emphasizes the restoration of listed species in
their natural habitats. However, section 3(3) of the ESA specifically
recognizes the potential for artificial propagation to help achieve
rebuilding objectives. Specific protections for hatchery and natural
fish reared in a hatchery are detailed in the HGMPs, especially if the
hatchery program is used to supplement natural populations. In certain
cases, NMFS has determined hatchery fish stocks to be essential to
recovering the ESU and has listed them under the ESA.
Comment 138: One commenter questioned how NMFS will determine
whether a catch and release fishery is allowable.
Response: Any selective fishery proposal, including those requiring
that listed fish be released after being caught, will be evaluated
based on its impacts on listed ESUs. The sum total of all fishery-
related impacts on a listed ESU will be considered in terms of its
effects on population viability and, when applicable, within the
structure of any existing HCP or recovery plan. No fishery that
jeopardizes an ESU's continued existence or poses risk to key
populations in that ESU will be allowed.
Specific Comments Related to FMEPs
Comment 139: Several commenters desired to know how fishery
mortality would be allocated and asked what the mechanism would be for
treating ocean, mainstem river, and tributary harvest consistently.
They asserted that all fishery related mortality should be accounted
for.
Response: Once take prohibitions are in effect, any fishery with
the potential to impact listed fish is subject to NMFS' ESA review and
approval process. All agencies proposing fisheries that have a
potential to affect listed stocks are required to quantify these
impacts. These agencies are required to comply with ESA review
requirements and obtain take authorization through a 4(d) rule limit, a
section 7 consultation, or section 10 permit application. Compliance is
determined by tallying all fishery related incidental take from all
agencies. Rigorous monitoring and evaluation programs ensure that
impacts remain within acceptable limits.
The FMEPs will specify adult escapement targets and harvest rates
for each ESU. The purpose of the ESA 4(d) rules is to accommodate the
listed species' biological needs, not to allocate harvestable surplus.
That is a co-manager responsibility and is undertaken in a number of
different venues.
Comment 140: Numerous comments related to specific information and
requirements included in actual FMEPs. The comments mainly addressed
specific gear and season restrictions and the need to regularly review
the FMEPs to ensure that they protect listed species.
Response: The FMEPs will be evaluated under the same standard used
for ESA section 10 permits: the proposed action(s) must not jeopardize
the continued existence of the listed ESU. The FMEPs will specify the
maximum exploitation rates--depending on listed fish abundance--or will
specify escapement levels. Each FMEP will include the time frames for
regularly reviewing it. Depending on the fishery's location and
circumstance, specific angling regulations may be detailed in the FMEP
(e.g., minimum length and bag limits for trout fisheries). In other
cases (e.g., some salmon fisheries), the specific regulations may be
adopted once the exploitation rate or catch quota is determined by
examining pre-season run forecasts.
Comment 141: Some commenters stated that maximum escapement
objectives and reasonable exploitation rates should be specified in the
FMEPs.
[[Page 42447]]
Response: NMFS strongly agrees that escapement objectives must be
determined for each fish stock and those objectives must be the
fundamental drivers of fishery harvest management. Parties to U.S. v
Washington and U.S. v Oregon should develop--through regional
management plans and based on biological requirements and fishery
needs--escapement objectives and exploitation rate targets for each
stock or management unit.
Comment 142: Several commenters suggested that all hatchery chinook
should be marked and that selective fisheries should be required.
Response: From an ESA perspective, several obvious and significant
benefits derive from applying a visual mark to hatchery chinook--most
notably the ability to easily monitor hatchery stray rates and
differentiate hatchery fish from natural fish for stock assessment
purposes. In addition, marking all hatchery fish can help managers
evaluate productivity among hatchery and wild fish--an important piece
of data for recovery planning. Because it now can be accomplished with
machines on a massive scale and with relatively little impact on
survival, the adipose fin clip achieves these benefits in a very cost-
effective and efficient manner.
By enabling selectivity, mass marking may also provide the means
for sustainable fisheries--clearly a very important objective. However,
because a number of critical issues related to ongoing coded wire tag
(CWT) programs remain unresolved, NMFS shares the view of its co-
managers that decisions made now to mass mark hatchery chinook are
separate from decisions to be made later regarding selective fisheries.
Even in cases where NMFS has required that a hatchery production run be
mass-marked because of ESA concerns, this does not imply that a
selective fishery will subsequently be endorsed. It is not NMFS' policy
to require that all hatchery production be mass marked. Rather, our
policy is that mass marking must be decided on a case-by-case basis
after taking into account, among other things, the specific objectives
of the hatchery production, the intended purposes of the mark, and the
effect the hatchery production would have on fish listed under the ESA.
Comment 143: One commenter asserted that any rulemaking must ensure
that treaties will be respected and that harvestable numbers of fish
result.
Response: NMFS agrees. As several court cases have found,
conserving and recovering listed stocks under the ESA to the point
where they no longer need the protections of the ESA is entirely
consistent with the long-term objective of having healthy harvestable
populations and the exercise of treaty rights to fish and hunt. From a
larger perspective, the greatest improvements in tribal fishing
opportunity will not accrue over the short term but through the long-
term recovery of the populations. Federal trust responsibility is best
fulfilled at this time by engaging in conservative fisheries
management. At the same time, hatchery production can be used to
provide harvestable fish if such programs can be shown to be consistent
with recovering wild fish.
Comments Related to the Time Frame for Developing and Commenting on
FMEPs and HGMPs
Comment 144: Numerous agencies, organizations, and individuals
commented that enough time must be allowed to develop and review the
FMEPs and HGMPs. Several commenters suggested providing a grace period
from several months to several years after the final rules are
published for developing and approving FMEPs and HGMPs.
Response: NMFS realizes the significant amount of work and time
required to develop and process FMEPs and HGMPs. Therefore, NMFS is
providing 6 months until take prohibitions go into effect for the
listed steelhead ESUs to allow additional time to develop and approve
FMEPs and HGMPs.
In addition, NMFS has also provided a transition period of 6 months
for recreational fisheries that affect listed steelhead. NMFS has
assessed the angling regulations currently in effect for juvenile and
adult steelhead in California, Oregon, Washington, and Idaho and has
concluded that listed steelhead will be sufficiently protected during
this 6-month period. This will allow additional time to develop and
approve FMEPs for the steelhead ESUs. Some fisheries and hatchery
programs will not need ESA coverage immediately after take prohibitions
go into effect because the actions do not affect listed species. NMFS
will work with the co-managers to prioritize fisheries and hatchery
programs on the basis of how urgently each needs ESA coverage.
Comments Related to the Process of Reviewing/approving/implementing
FMEPs and HGMPs
Comment 145: Some commenters suggested that NMFS include a
provision for independent scientific review of the FMEPs and memorandum
of agreement (MOAs) between NMFS and the action agency.
Response: As stated in the rules, the public will have the
opportunity to review and comment on FMEPs and HGMPs for at least 30
days before NMFS acts on them. During this comment period, independent
scientific entities are invited to review and comment on FMEPs and
HGMPs. NMFS intends to address the public comments with the appropriate
co-manager before approving any plan.
Comment 146: Some commenters wanted NMFS to define the ``regular
basis'' on which limits will be evaluated. They also wanted to know
what the time frames for reporting would be.
Response: NMFS and the individual co-manager will decide on a case-
by-case basis the review and evaluation requirements for an approved
FMEP or HGMP. The FMEPs and HGMPs will specify the time frames for
regularly reviewing the plans and that information will be included in
NMFS' letter of concurrence on the management plans. Depending on the
circumstances, management plans may be evaluated every year or after
analyses are complete. This will reasonably accommodate the time needed
to prepare post-season catch and effort reports as well as any analyses
the co-managers need for adjusting fishing regulations. However,
whenever practical, the evaluation and review process should embrace an
annual time frame so that appropriate adjustments may be made before
the next fishing season.
Comment 147: Some commenters were concerned that a final HGMP was
not available at the time of the proposed rules and that the final
criteria for HGMPs may be substantially different from those cited in
the proposed ESA 4(d) rules.
Response: The final draft of the HGMP template has been available
to co-managers and posted on NMFS' web site since January of 2000. This
template includes the information that must be included in the HGMPs
for approval. Based on the public comments received, the criteria and
the template for HGMPs have not changed substantially in the final
rule.
Comment 148: A few commenters stated that the process for approving
a hatchery broodstock program should be clearly described.
Response: NMFS believes the process is clearly described in the
proposed and final rules. A state or Federal co-manager who wishes to
utilize the ESA 4(d) process rather than the section 10 process must
develop a detailed HGMP.
[[Page 42448]]
The HGMP must address the criteria in the 4(d) rule and follow the
template NMFS has provided. The draft HGMP will be made available for
public comment for at least 30 days. If NMFS determines the HGMP
adequately addresses the established criteria, we will issue a written
concurrence or, in the case of a Federal action, we will conduct a
section 7 consultation. NMFS believes this process allows the public an
adequate amount of time to review and evaluate a hatchery broodstock
program before it is approved.
Comment 149: One commenter pointed out that the assumption that
average hooking mortality is less than 5 percent is based on only one
study (Hooton,1987). Based on the scientific literature, they felt this
rate to be low and recommended that NMFS further evaluate hook and
release mortality rates in the literature.
Response: NMFS agrees that hooking mortality deserves further
investigation and we are committed to doing so. However, for now the 5
percent rate reported in Hooton (1987) seems to constitute a reasonable
average. Other studies do show higher mortality rates for salmonids
when stream temperatures are elevated (Klein, 1965; Dotson, 1982; Titus
and Vanicek, Taylor and Barnharnt, 1997), but for most conditions,
Hooton's estimates are reasonably accurate.
Habitat Restoration Activities
Comment 150: One commenter stated that NMFS itself should develop
the WCP guidelines.
Response: NMFS believes that the states are in the best position to
perform the lead role in developing these guidelines. The geographic
scope of this rule covers four states, an area over which biological
and geological factors vary considerably. Even more importantly, each
state's agencies, regulations, and conservation programs are unique and
the WCP guidelines, to be effective, should be designed to fit within
that unique context. The states' natural resource agencies have
relatively large and expert staffs that are better prepared to interact
with the entities that will use these guidelines. For these reasons,
this limit remains founded upon the development of state WCP
guidelines.
Comment 151: Numerous commenters stated that the interim provisions
of Sec. 223.203(b)(8)(ii) (in the proposed rule, 65 FR 170, January 3,
2000) should be extended beyond 2 years, or were too permissive, or too
restrictive. Many of these commenters proposed inclusion of specific
activities that were not included in the six proposed interim
provisions.
Response: NMFS observes that the interim provisions of
Sec. 223.203(b)(8)(ii) have been misunderstood to such an extent that
NMFS has dropped these provisions from the final rule. The intent of
these proposed interim provisions was to acknowledge that getting WCP
guidelines and plans in place will require time, and the potential
benefit to listed salmonids of allowing certain relatively low risk
habitat restoration projects to proceed in the near term might outweigh
the risk entailed by those activities not being part of a WCP.
However, the interim provisions had been widely misperceived as
detailed regulation of habitat restoration activities. NMFS did not
intend to provide for the direct regulation of habitat restoration
activities under the terms of this rule and regrets that the earlier
proposal created this false impression. Accordingly, NMFS now deems it
advisable to simply drop the interim provisions from this final rule.
Many low risk activities (e.g., riparian exclosure fencing or native
vegetation planting), simply do not carry an appreciable risk of
taking. Activities involving instream construction or modification of
the streambed or banks require CWA section 404 permits which carry ESA
section 7 coverage. All habitat restoration activities will entail less
risk and more benefit if they are part of an approved WCP, and NMFS
encourages the timely development of WCP guidelines and plans. Habitat
restoration projects are less likely to be successful if undertaken
without supporting analyses that disclose habitat impairments and
absent resource management adjustments within the watershed to redress
the underlying causes of those impairments.
NMFS strongly encourages jurisdictions, entities, and citizens to
use the habitat restoration guidelines and technical manuals referenced
in ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 2000) as readily
available techniques to reduce the risks of harm or injury to the
listed stocks. In the event that an allegation arose about a potential
ESA section 9 violation, NMFS would furthermore take into account the
efforts of the watershed group or entity to adhere to the relevant
guidelines. Where injury or harm was resulting in such a circumstance,
NMFS believes that the proper and most effective remedy would be an
orderly adjustment in the relevant guidelines and not the prosecution
of a section 9 violation against an individual project.
Comment 152: Several commenters had questions regarding what
entities are responsible for developing and implementing WCPs and what
state agency is responsible for certifying the plans.
Response: This final rule intentionally leaves these questions
unanswered. There are potentially many different entities that may be
responsible for developing WCPs in different circumstances--watershed
councils, soil and water conservation districts, city or county
governments, regional authorities, and so forth. NMFS finds it
unnecessary to limit by rule what types of entities may produce and
carry out WCPs. Likewise, NMFS leaves it to the individual states to
determine the appropriate agencies for developing guidelines and
certifying plans.
Comment 153: Many commenters had concerns about the clarity and
intent of the approval criteria for the WCP guidelines.
Response: The criteria have been modified in this final rule to
make them clearer and more effective.
Comment 154: Some commenters suggested that Federal activities--
particularly habitat restoration activities--should receive a limit on
the take prohibitions. CDFG suggested that restoration activities
conducted under the Department's Fishery Habitat Restoration Program
are already covered by their incidental take permit associated with
their Corps of Engineer (COE) 404 permit consultation.
Response: Federal agencies that engage in, permit, or fund
activities that may affect listed species are required under section 7
of the ESA to consult with NMFS. The ESA contains no provision to
exempt Federal actions that involve habitat restoration activities from
their section 7 obligations. Habitat restoration activities would only
need to seek approval under this limit if they have more than a
negligible likelihood of taking listed salmonids, and are not covered
by any section 10 permit or section 7 incidental take statement.
Comment 155: Several commenters were concerned that neither the
states nor NMFS will have the necessary resources to handle such a
large number of written approvals; also, some stated that it was
inappropriate for a state or NMFS to review individual projects after
having approved an overall plan.
Response: NMFS agrees that the workload associated with approving
all individual restoration projects and activities could overwhelm
state and NMFS staff resources. In addition, activity-level review
could defeat much of the process efficiency gained in the WCP approach.
This final rule has been
[[Page 42449]]
changed to require only state certification of WCPs, and NMFS' approval
of the state guidelines (with a periodic review of the state
certification process to ensure that WCPs are adequately analyzed).
Provisions for clearly identifying whether particular activities are
part of an approved plan must be part of the plans themselves and need
not necessarily involve state or NMFS staff directly.
Comment 156: One commenter asserted that it is unclear which
criteria NMFS will use in concurring with a state certification of a
WCP.
Response: NMFS has amended the final version of this rule to drop
the requirement of NMFS concurrence with the certification of
individual WCPs. NMFS expects the criteria for the relevant state
certifications will be contained in the state restoration guidelines
anticipated by this final rule, and will periodically review the
states' certification process for appropriate rigor.
Comment 157: One commenter proposed a stepwise approach toward
making the transition from the specified activities of
Sec. 223.203(b)(8)(ii) interim period to allow development of state
guidelines and WCP to the WCP context of Sec. 223.203(b)(8)(i).
Response: NMFS agrees with the commenter, and in response the
interim provisions proposed as 223.203(b)(8)(ii) have been deleted from
the rule.
Comment 158: One commenter suggested integrating FMEPs and WCPs.
Another stated that WCPs should be a part of the recovery planning
process and not be evaluated piecemeal.
Response: In essence, the first commenter is suggesting recovery
plans, which NMFS agrees are necessary for the conservation of the
species and intends to develop for listed salmon. However, NMFS does
not believe that completed recovery plans are a necessary prerequisite
for all habitat restoration activities. While the existence of an
overarching recovery plan could make constituent watershed conservation
planning both easier and more effective, it does not follow that
adequate watershed conservation planning cannot be done prior to the
existence of a recovery plan.
Comment 159: Numerous commenters suggested that local governments
should be recognized and allowed to develop guidelines and WCPs without
state or Federal approval or the 2-year time line. A few commenters
further questioned the scope and scale of the plans or pointed out the
burden the process would place on local governments.
Response: The 2-year interim period has been deleted from this
final rule, so the time line for developing guidelines and WCPs is now
entirely up to the states and the entities desiring to perform habitat
restoration activities. NMFS recognizes and appreciates the efforts
local authorities are putting forth in watershed planning and habitat
restoration projects. Nevertheless, NMFS is not prepared to
individually review and approve WCPs, and has dropped that requirement
from the final rule. State technical guidance can certainly assist
localities in watershed conservation planning, and local governments
having the wherewithal to independently develop and implement WCPs
should not have undue difficulty navigating the revised approval
process.
Comment 160: Several commenters suggested that NMFS should give
more recognition to local watershed restoration efforts.
Response: NMFS recognizes the importance of local efforts, and
will, by accepting approved watershed assessments, WCPs, and
restoration projects developed through cooperative local efforts,
acknowledge the contributions made by local watershed conservation
groups. These efforts, in conjunction with regional and ESU-specific
recovery efforts, will be crucial components of species recovery.
Comment 161: Several commenters pointed out that the assured
funding criterion Sec. 223.203(b)(8)(i)(A)(10) could present
difficulties for some local governments and watershed councils.
Response: NMFS recognizes that securing funding to reliably
implement the WCPs will be a challenging undertaking for many entities.
Therefore, NMFS remains open to trying different means to flexibly deal
with any difficulties that may arise--particularly with regard to
funding.
Comment 162: One commenter objected to a requirement that WCPs be
monitored to determine whether they increase listed salmonid
productivity. The commenter was concerned that the cost and difficulty
of monitoring fish populations would discourage local efforts at
habitat restoration.
Response: NMFS realizes it is difficult and expensive to monitor
population response and that acceptable methods have generally not been
developed. While increased fish productivity is the ultimate goal (from
NMFS' perspective) of a WCP, NMFS recognizes that monitoring programs
will focus on habitat functions and processes as indicators of
watershed health.
Comment 163: One commenter suggested that the Federal Register
document and comment period prior to NMFS' approval of watershed
conservation plan guidelines was unrealistic and contrary to the goal
of salmon recovery.
Response: NMFS considers it necessary to provide for appropriate
public review of the guidelines that NMFS expects to be addressed in
programs submitted for its review. Ensuring complete and open public
scrutiny will improve the guidelines through broad input and enhance
their value through dissemination to all parties interested in the role
of the guidelines in salmon recovery.
Comment 164: A number of commenters suggested there was a need for
greater clarification in the scope and purpose of WCPs and watershed
analyses, and that more specific direction was required in order to
identify the information needs of the plans and analyses.
Response: Analyses and plans must ensure that habitat restoration
activities will help place the overall habitat on a trajectory towards
a self sustaining condition that provides high quality ecosystem
function. NMFS believes that projects planned and carried out based on
a watershed-scale analysis and conservation plan are likely to be the
most beneficial. Watershed analyses identify problems that are
impairing watershed processes and functions and supply base information
needed to develop watershed plans and restoration activities. Without
the context provided by watershed analyses, habitat restoration efforts
are likely to focus on symptoms rather than on the underlying impaired
ecosystem processes. NMFS identified 10 standards in the ESA 4(d) rule
that characterize the WCPs' scope and intent.
Comment 165: Two commenters indicated that the restoration programs
receiving limits on the ESA section 9 prohibitions should be expanded,
and further, that the guidance should be made ESU-specific.
Response: NMFS works with state and local jurisdictions and other
resource managers to identify 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. This ESA 4(d) rule may be amended to add
new limits on the take prohibitions or to alter or delete limits as
circumstances warrant. NMFS wishes to continue to work collaboratively
with state and local jurisdictions and other resource managers to
recognize existing and potential management programs that conserve
listed salmonids and meet their biological requirements. As more
programs that meet these objectives are developed or identified,
greater
[[Page 42450]]
geographic and ESU specificity may be possible.
Comment 166: One commenter suggested that WCPs should be required
to protect existing high quality habitat.
Response: NMFS agrees that the best available science supports the
concept of protecting existing high quality habitat as a cornerstone of
a WCP (provided there is high quality habitat within the scope of the
WCP). But the criteria provided at Sec. 223.203(b)(8)(iii) will be used
only to evaluate state WCP guidelines, which will include much more
technical detail. Those guidelines will then be used to evaluate WCPs.
Comment 167: One commenter stated that conservation plans should
not be limited to salmonid recovery but must be broad enough to
encompass other watershed functions and goals.
Response: In freshwater ecosystems, NMFS' legal authorities are
limited to the conservation and recovery of listed anadromous salmonids
and their habitats. To help conserve listed salmonids, restoration
actions should put the aquatic habitat on a trajectory towards such a
naturally self sustaining system (i.e., properly functioning habitat).
Properly functioning habitat condition consists of the sustained
presence of the natural processes that provide high quality ecosystem
function. This complex system is composed of the stream, the riparian
area, and upslope areas. All three components of this system are
interconnected. The WCPs that guide restoration activities intended to
conserve salmonids will also benefit other aquatic, riparian dependent,
and upland species and their habitats.
Comment 168: Two commenters suggested that WCPs should also serve
as CWA section 303 Total Maximum Daily Loads (TMDLs) for waters listed
as impaired. Another suggested that NMFS work with the Oregon
Department of Agriculture to coordinate the SB 1010 water quality
management process with the watershed conservation planning process.
Response: NMFS believes these are excellent ideas and recommends
the approach. However, NMFS does not deem it necessary for the
conservation of the species to require such a consolidation of mandates
in this final rule. Incorporating water quality management plans, such
as SB 1010 plans or TMDL Water Quality Management plans, into the
watershed conservation planning effort is a logical and pragmatic
approach towards watershed-scale recovery.
Comment 169: Numerous commenters stated that the habitat
restoration portion of the rule was too permissive and unclear in its
objectives, definition, criteria, and implementation. One commenter
believed it would create new programs that would divert attention from
the loss of viable habitat which is the root cause of salmonid decline.
Others cautioned against allowing state programs a limit on the take
prohibitions because existing state programs have proven to be poorly
designed and implemented. Several commenters noted general loopholes in
the limits section.
Response: The six specific interim provisions of the proposed rule
were intended to strike a balance between the possible benefit to
listed salmonids of allowing incidental take associated with some
habitat restoration activities (while WCPs were being developed)
against the risk that those activities might have deleterious
consequences that a WCP context would have prevented. To accomplish
this, NMFS selected six categories of common and relatively low risk
restoration activities, and provided specific guidance and a list of
references to further reduce the risk. In light of the numerous
comments asserting that the interim provisions were both too permissive
and too restrictive, NMFS now concedes that attempting to strike this
balance was overly ambitious, and so has deleted the interim provisions
from the limit for habitat restoration. Instead, NMFS offers three
approaches for individuals who are contemplating habitat restoration
actions but are concerned about their take liability: (1) Many of the
most effective long-term restoration activities (e.g., riparian
livestock exclosure fencing, native vegetation planting, cessation of
ground or vegetation disturbing activities, cessation of water
diversion) have extremely low probabilities of take, and the actors
should not be concerned about take liabilities; (2) most higher-risk
activities (e.g., instream construction activities, modification of
stream bed or banks) require a CWA 404 permit from COE which provides
incidental take permission through section 7 of the ESA; and (3) NMFS
recommends the habitat restoration limit on take prohibition included
in this rule as the best solution for encouraging effective restoration
activities consistent with science based guidelines.
Comment 170: A commenter suggested that the rule holds habitat
restoration to a much higher standard (in some cases so high as to
render such activities impossible) in terms of avoiding impacts than it
requires for development activities.
Response: NMFS disagrees. As stated in the rule, all 13 of the
limits contribute to the conservation of listed salmon or are governed
by programs that adequately limit their impacts. Moreover the same
standard applies to both habitat restoration and development
activities; they must achieve PFC of the habitat.
Comment 171: Several commenters believe that NMFS' approach with
this limit is to treat habitat restoration activities as a significant
threat to the very species they are trying to protect. They believe
that NMFS is overreaching its authority and this approach is
bureaucratic, unrealistic, unnecessary, and will, as a result, be
counterproductive to species recovery. Many stated that NMFS should
give a limit to any activity carried out in accordance with state and
Federal Laws. Another general sentiment was that NMFS should take a
``hands-off'' approach to restoration activities and simply provide
landowners with technical expertise.
Response: We agree that bureaucracy should be kept to a minimum
wherever possible and we will consistently seek ways to streamline all
the processes this final rule entails. Nonetheless, the final rule
includes a limit for habitat restoration activities because, absent the
limit, some of these activities could result in prohibited taking. NMFS
does indeed want to avoid the tragic irony of having a protective
regulation impede habitat restoration that might otherwise contribute
to recovery. However, good intentions alone will not adequately protect
listed salmonids from the unintended negative consequences of poorly
designed habitat restoration projects. Such projects often entail
physical modification of currently used habitat of listed salmonids,
and have significant potential to further damage impaired habitats and
populations. The probability and consequences of project failure can be
particular severe when projects attempt to redress the symptoms of
habitat impairments before the underlying causes have been reversed.
NMFS does not believe that it can disengage from its ESA
responsibilities and simply rely on other state and Federal laws for
approval to carry out restoration activities.
Comment 172: A few commenters stated that emergency exemptions and
a specific scope of rules should be included for bank stabilization and
flood repair operations.
Response: NMFS believes altering and hardening stream banks,
removing riparian vegetation, constricting channels and flood plains,
and regulating flows are primary causes of anadromous fish declines.
Section 404 of the CWA--implemented through COE
[[Page 42451]]
regulatory authority--provides conditions for permitting stream channel
and bank activities. Section 7 of the ESA provides emergency
consultation procedures which allow Federal action agencies to
incorporate endangered species concerns into their actions during the
response to an emergency (50 CFR 402.05). For these reasons, NMFS
asserts that existing regulations are sufficiently flexible to enable
emergency work without limiting take prohibitions for flood control or
repair activities.
Comment 173: One commenter suggested that ``artificial bank
stabilization'' should be defined.
Response: We agree that the usage in the proposed rule may have
been confusing. The term is meant to be read in context with ``primary
purpose'' of the habitat restoration activity definition. The primary
purpose of the vast majority of bank stabilization projects is not to
restore natural aquatic or riparian habitat processes or conditions,
but to protect economic development and then try to ``fix'' habitat
remnants in an artificial manner. Such use of artificial materials and
means in a piecemeal approach to control a river (or enhance an already
controlled river) clearly fits the definition of artificial bank
stabilization.
Comment 174: Numerous commenters stated that marine and estuarine
habitats should be included in the habitat protections and that
connectivity issues and restoration activities should receive similar
attention.
Response: NMFS agrees estuarine habitats should be protected, but
believes the rule adequately prohibits take and destruction of habitat
in marine and estuarine areas. This final rule text provides sufficient
examples (i.e., destruction of freshwater and estuarine habitat,
altering stream or tidal channels, altering habitat) as take guidance.
Lists of how prohibited take may occur are not designed to be
exhaustive. Regarding limits for habitat restoration activities in
marine/estuarine areas, NMFS believes such projects are of large enough
scale and complexity to require project by project technical review at
least until watershed planning is complete. NMFS not only agrees with
the commenters stating that near shore marine and estuarine habitats
should be included in watershed planning but expects that these areas
will be included in applicable state guidelines and WCPs.
Comment 175: A number of commenters requested that NMFS define the
spatial scales appropriate for watershed analyses and conservation
plans.
Response: NMFS recognizes that the four states covered by the ESA
4(d) rule delineate watershed boundaries using different hydrologic and
administrative criteria. Consequently, the size of individual
watersheds varies among the states and often across programs within a
state, though there are a number of basic similarities in terms of
watershed function and boundary. Each state's regulations and
conservation programs are unique and the WCPs will most effectively
conserve anadromous fish and their habitats if watershed boundaries are
delineated within each administrative context.
Comment 176: A number of commenters indicated that the state
guidance documents developed to help steer restoration activities were
not complete or were not ESA compliant.
Response: NMFS recognizes that some of the identified state
guidance documents are not finalized, and that some of the included
activities may have an appreciable risk of taking. However, NMFS notes
that these documents do provide guidance that will reduce risk and
increase benefits of habitat restoration activities. Therefore, NMFS
still recommends use of the guidance documents: 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 (May, 1995); WDFW's Fish Passage Design at Road Culverts
(March 3, 1999); and Oregon Road/Stream Crossing Restoration Guide
(Spring 1999). Further, NMFS encourages the states to compile and
expand these valuable guidance documents into WCP guidelines which NMFS
may find qualifying under Sec. 223.203(b)(8)(iii) of this rule.
Comment 177: Some comments reflected a concern that a report cited
by NMFS in the proposed rule, ``Steelhead Restoration and Management
Plan for California'' was not a peer-reviewed document and should not
be included as guidance.
Response: The report cited in these comments has been adopted as an
integral part of the Cal-Fed ecosystem plan, and was subject to
extensive peer review before being adopted.
Comment 178: Several commenters questioned how the rule affected
Indian Tribes' habitat restoration efforts. Most comments were directed
at tribal participation in watershed planning, the potential for
conflict between state guidelines and tribal restoration plans, and the
lack of specific limits for tribal habitat restoration projects.
Response: As co-managers, the Tribes may participate in any forum
for developing conservation guidelines and specific WCPs. Tribes may
also submit their own watershed conservation guidelines and plans under
the Tribal plan limit. This final rule text describes a process wherein
four western states are tasked because NMFS believes the states are
responsible for conserving natural resources and native species within
their geographic boundaries, and that sufficient infrastructure is in
place to expeditiously develop guidelines. No further or specific
limits for tribal restoration projects were included in the rule
because limits for tribal trust resource management actions that take
threatened salmonids are promulgated in a separate rulemaking (65 FR
108, January 3, 2000).
Comment 179: One commenter requested that the removal of sinker
logs (which can sometimes constitute a navigational hazard) should
receive a limit on the take prohibitions.
Response: Removal of navigational hazards is under the authority of
COE and it is their responsibility to consult with NMFS when they
propose to engage in an activity that may affect listed salmonids.
Federal projects that are approved through ESA section 7 consultation
need not also qualify under a 4(d) rule limit.
Comment 180: One commenter suggested that physical fish habitat is
not being fully utilized now, and questions the need to create more.
Response: NMFS respectfully disagrees and believes the commenter
may have oversimplified the multifaceted problem of habitat
productivity as being only a matter of finite capacity. This is a less-
than-accurate portrayal of the habitat factors for decline which
include both pervasive loss of habitat quality and loss of access to
historic habitat because of barriers. It is NMFS' position that habitat
degradation and loss have contributed substantially to the decline of
anadromous salmonids, and opportunities to regain both habitat function
and extent should be sought.
Comment 181: Some commenters felt NMFS should recognize that it may
not be advisable or possible to protect or restore historic stream
channels/processes, especially in urban settings.
Response: NMFS recognizes that, especially in the urban setting,
stream channel habitats are often impaired and are not functioning
properly. NMFS would further acknowledge that not all stream segments
may be recoverable. However, NMFS maintains that all tools for salmon
recovery must be retained in the toolbox. Urban development, open
space, or green space designations provide opportunity to protect
[[Page 42452]]
important riparian settings. Likewise, urban redevelopment may provide
future opportunities for communities to protect or restore historically
important stream channel settings.
Properly Screened Water Diversions
Comment 182: One commenter wanted to know who determines whether
fish screens are adequate.
Response: The proposed rule states that NMFS' engineering staff
will agree in writing that a diversion facility is screened,
maintained, and operated in compliance with NMFS- approved Juvenile
Fish Screen Criteria. The proposed limit has been revised based on
public comments and by the fact that the projected workload associated
with approving potentially thousands of water diversion facilities in
four states has the potential to overwhelm NMFS staff resources.
Consequently, this final rule has been changed to allow NMFS-authorized
state agency engineers and screen inspectors to review and recommend
screen design certifications and to allow NMFS-authorized screen
inspectors to check screens for operational and maintenance compliance.
This approval process will augment NMFS staff review. NMFS' Northwest
Region (NWR) Juvenile Fish Screen Criteria have been adopted by the
Columbia Basin Fish and Wildlife Authority (with participants from the
states of Oregon, Washington, and Idaho) for use in waters with
anadromous salmonids. NMFS' Southwest Region (SWR) Juvenile Fish Screen
Criteria was developed in close coordination with CDFG criteria and the
two sets of criteria are compatible. As a result, in all four states
affected by this final rule, NMFS' Juvenile Fish Screen Criteria will
form the basis for a design review and inspection program. It is
proposed that a design specification check-off form and an operational
screen inspection report form be developed and used consistently in the
four states. NMFS will establish and maintain a data base to record who
reviewed a particular screen design, when it was inspected, any
problems associated with poorly designed screens being approved, and
other relevant information. A key component of this process will be
important training to certify inspectors and design reviewers. New
language has been added to the regulation to reflect this change.
Comment 183: Some commenters stated that the final rule should
acknowledge other screen technologies, especially non-conforming
technologies, that have been demonstrated to meet or exceed levels of
protection provided by technologies that do meet NMFS screen criteria.
Response: NMFS' engineering staff is frequently asked to assess
other screen technologies that are not compliant with NMFS' screen
criteria. As a result, NMFS staff has developed a standard protocol for
evaluating non-conforming technologies, and has published an agency
position paper titled ``Experimental Fish Guidance Devices,'' November
1994, that can be found on the NMFS web page at www.nwr.noaa.gov/
1hydrop/exp__tech1.htm. This position paper describes the process NMFS
requires for a proponent of experimental technology to demonstrate that
a particular non-conforming technology meets or exceeds the level of
protection offered by a facility designed using NMFS' Juvenile Fish
Screen Criteria. We are not aware of any non-conforming technology that
demonstrably protects fish as well as or better than NMFS' criteria for
the variety of operating conditions present at any typical water
diversion site. If evidence is provided that a non-conforming
technology exceeds the level of protection provided by NMFS criteria
(as described in the position paper referenced above), NMFS would
welcome and approve this technology.
Comment 184: One commenter stated that water withdrawal and
diversion activities that take listed salmon should not be granted
limits.
Response: The intent of the limit for a water diversion equipped
with a screen constructed to NMFS' standard is to minimize take
associated with diversion activities once water is diverted from the
stream. NMFS intends to enforce the take prohibition for other forms of
take that may be associated with water diversions (e.g., dewatering
streams, building gravel push-up dams, or creating other passage
impediments).
Comment 185: A few commenters stated that requiring screens on all
diversions in the Sacramento Delta regardless of whether or not the
particular diversion affects steelhead is unjustified.
Response: The intent of providing juvenile fish screen facilities
is to minimize the prospect of take once the water has been diverted.
It is extremely unlikely that it can be conclusively demonstrated that
any particular diversion in a river basin containing listed steelhead
will never entrain a listed steelhead. It may sometimes be true that
listed fish are not present at a diversion site. It is more likely
that--due to a variety of circumstances--the listed fish simply escape
observation at a given site. This should not be construed as a total
absence of listed fish at a site. It should also be remembered that
fish are at critically low levels now and that their presence at
diversions and other sites is likely to increase as we proceed with
their recovery.
Comment 186: Some commenters asserted that agencies and individuals
making good faith efforts to install screens should receive a grace
period during which take prohibitions would not be enforced.
Response: NMFS acknowledges that certain complex screen facilities
can take several years to finance, design, and construct. NMFS will,
therefore, change the proposed rule to include a provision for
addressing selected facilities on a case-by-case basis. In these
instances, a facility will be eligible for approval under the limit if
it has an approved design construction plan and schedule that includes
interim operation measures to minimize take. In the event that this
schedule is not met, or if a schedule modification is made that is not
approved by NMFS engineering staff, or if the screen installation
deviates from the approved design, the water diversion will be subject
to take prohibitions. In all other cases, as stated in the proposed
rule, NMFS will apply the prohibition against take and the limit is
available to those who have their diversion facility approved and
inspected as stated in this final rule.
Comment 187: One commenter stated that diversion activities that
substantially benefit the public should be included in the limit.
Response: It can be argued that any diversion activity confers
public benefit to one degree or another. However, water diversions are
screened to protect fish and allow them safe egress from the diverted
flow--an activity which has little to do with how much the diversion
itself benefits the public. Therefore, it is not possible to grant a
blanket approval for water diversions--regardless of the amount of
benefit that may putatively accrue from an individual facility.
Comment 188: Several commenters asserted that NMFS' screening
criteria are not well defined, have not received enough scientific
review, and are not flexible enough.
Response: On the contrary, NMFS' juvenile fish screen criteria are
extensively detailed and do include sufficient flexibility to deal with
site-specific constraints and other concerns. There is no set of
juvenile fish screen criteria in the world that is as well defined, or
has undergone a higher degree of scientific scrutiny. In addition,
NMFS' juvenile fish screen criteria are based on decades of operational
[[Page 42453]]
experience that have yielded the best screen designs for salmonid
protection in existence. Several state agencies have adopted NMFS'
screen criteria and use them in water bodies containing anadromous
fish. Lastly, extensive biological screen evaluations have revealed
little or no injury to fish when testing screen facilities constructed
to NMFS' criteria. This is a primary indicator that NMFS' juvenile fish
screen criteria are the best option for protecting listed fish
entrained by a water diversion.
Comment 189: One commenter suggested that screened diversions
approved under the limit should be reviewed annually as to their
physical condition.
Response: This is a good suggestion. NMFS agrees with this comment,
and will seek to incorporate this issue into the check-off form and
inspection process for a screen design and inspection program that NMFS
be developed with the states.
Comment 190: One commenter stated that there should be no violation
of the rule for inadequately screened diversions if no take can be
proven.
Response: There are no liabilities under ESA if take does not
occur.
Comment 191: One commenter thought that ``enforcement official''
should be replaced with ``authorized officer.''
Response: NMFS agrees with this recommendation and has made this
language change.
Comment 192: One commenter stated that unscreened agricultural
diversions in the Sacramento River delta are not the problem, and that
NMFS should concentrate its efforts on the export pumps that dry up the
river.
Response: Water diversions in critical habitat have the potential
to take listed salmonids and, are therefore, subject to take
prohibitions. Even properly screened diversions may take fish by drying
up the river. NMFS intends to enforce take prohibitions against
diversions that dewater river beds.
Comment 193: One commenter wanted to know if the limit applies to
all diversions or just irrigation diversions.
Response: As stated previously, diversion of water in critical
habitat has the potential to take listed salmonids and is therefore
subject to take prohibitions. Thus the limit applies to all diversions
that may affect the listed species.
Comment 194: One commenter identified the need for detailed
operation and maintenance guidance if maintenance is to be a
requirement in this limit.
Response: NMFS' engineering staff will provide this guidance in
general for all juvenile fish screens and will develop site-specific
operations and maintenance plans for sites with particular concerns.
Our intent is to develop this guidance in conjunction with regional
forums on screen activities (e.g., the Fish Screen Oversight Committee
of the Columbia Basin Fish and Wildlife Authority). Both the general
and the site-specific guidance will be included in the proposed
training program for state-authorized officers.
Comment 195: One commenter wanted to know if the ESA 4(d) rule
applies to temporary diversions during construction.
Response: NMFS will need to review each situation on a case-by-case
basis and the answer will depend on the nature of the diversion. Some
construction activities provide a temporary diversion around a
construction site, and safely return fish and flow to the stream
downstream of the site. Other activities may be required to provide a
screen and bypass for a temporary diversion if biological review
determines that the activity will place the fish at risk. These
decisions will be made when developing a Biological Opinion on a
particular in-stream activity.
Comment 196: One commenter urged NMFS not to apply the ESA 4(d)
rule take prohibitions in areas upstream of fish barriers.
Response: The ESA 4(d) rule take prohibition applies to the land
and ocean area within the 14 designated ESUs. All operators of water
diversions within these ESUs need to review their activities and modify
any activity that may take a threatened species.
Comment 197: One commenter noted that NMFS does not credit
compliance with existing fish protection requirements, but appears to
require continual updating to new fish screen standards and individual
sign-off from NMFS staff that the screen complies. The commenter also
stated that individual screen certification creates certain practical
obstacles and NMFS should use this as an incentive and limit the take
prohibitions on water use in general, not just on the physical
diversion structure.
Response: The intent of the ESA 4(d) water diversion screening
limit is to allow a water diversion to be made as safe as possible for
listed fish species. Therefore, as new biological information becomes
available, it may drive a modification in the screen criteria.
Nonetheless, NMFS recognizes that it is unnecessary to retro-fit all
existing screen facilities with new features every time new information
comes to light because the criteria that are currently in place do an
excellent job protecting all salmonid life stages. NMFS has updated
their juvenile fish screen criteria only once in the last 11 years. The
change came about as a result of new biological evidence that certain
previously untested aspects of the old criteria did not adequately
protect certain life stages of fish. While this set a standard for new
installations, NMFS did not expect retro-fits of recently constructed
facilities. NMFS intends to certify screen designs that meet the
criteria in place at the time of construction--providing there is no
evidence to show that the device is actively taking listed species. In
addition, NMFS intends that when screen components need to be replaced
due to wear, materials will be used consistent with current criteria.
However, if a screen is installed that is out of compliance with NMFS
criteria, no limit from the take prohibition will be allowed.
Comment 198: One commenter argued that the practical effect of the
ESA 4(d) rules with respect to water diversions is to eliminate
incentives for water users to screen their diversions.
Response: The intent of this limit is to offer diverters protection
from take enforcement when fish are protected by a properly installed,
well-designed, and well-maintained screen. There are clearly other
issues (e.g., stream dewatering) that can not be solved by screen
installation, and these activities will continue to diminish critical
habitat and take listed fish and thus be subject to take prohibition.
Comment 199 : One commenter urged NMFS to apply this limit to water
pumping devices as well as diversions.
Response: Water pumping devices are included in this limit.
Comment 200: One commenter wanted to know the details of NMFS'
enforcement strategy for non-compliant screens and diversions.
Response: NMFS' enforcement strategy is specified in the section of
this final rule entitled ``Take Guidance.'' Unscreened water diversions
that cause take of a threatened species are subject to NMFS take
enforcement action.
Road Maintenance Activities
Comments Relating to the Oregon Department of Transportation (ODOT)
Limit
Comment 201: Several commenters wanted the limit provided to the
ODOT for the Routine Road Maintenance Water Quality and Habitat Guide
Best Management Practices July 1999 (Guide)
[[Page 42454]]
to apply to other cities and counties as well so they would not have to
develop their own. Many of these commenters also requested that the
limit be expanded to other jurisdictions and departments of
transportation--with appropriate revisions to the best management
practices (BMPs).
Response: There are two issues reflected in this and other road
maintenance comments and NMFS has organized its responses accordingly.
The first is that some local jurisdictions would like to adopt the ODOT
manual without modification with the understanding that it will provide
proper functioning habitat conditions. NMFS agrees that local
jurisdictions can adopt the BMPs in the manual; however, the local
maintenance programs will need to be examined further to assess any
differences between them and ODOT's program and determine how those
differences would affect the success in contributing to Properly
Functioning Condition (PFC). Also, NMFS and ODOT have spent several
years evaluating this program so that NMFS has a clear understanding of
ODOT's ability to fulfill training, tracking, and reporting
requirements. Other jurisdictions wishing to be covered under this
limit would have to demonstrate their ability to make similar
commitments and would also need to define the circumstances under which
an individual BMP would not be followed.
The second issue pertains to the potential application of the limit
to similar activities of other jurisdictions besides ODOT and Oregon
cities and counties. NMFS agrees that under the conditions that meet or
exceed those described above, the limit for routine road maintenance
could be applied to other jurisdictions such as ports, other state
transportation agencies, and cities and counties in other states which
also, like ODOT, have programs that are determined to meet PFC. This
final rule describes the procedure for public comment and determination
of inclusion within the limitation on the take prohibition.
Comment 202: One commenter focused on how NMFS would respond if the
ODOT program had compliance problems or if new information demonstrated
that the program no longer provided sufficient protection. They stated
that allowing ODOT to correct the matter ``within a mutually determined
period of time'' was too vague a standard.
Response: NMFS agrees, and the wording of the rule has been changed
to reflect this comment.
Comment 203: Some reviewers stated that the ODOT guide is
completely inadequate to the task of protecting fish in that it allows
far too many potentially harmful activities and contains far too much
ambiguous language. Similarly a number of commenters asked that ODOT
remove the ``hedge'' words (``where feasible,'' etc.) from the road
maintenance limit.
Response: NMFS believes that the ODOT program, as designed, will
adequately protect the listed species and their habitat. NMFS also
intends this final rule to be somewhat flexible in terms of allowing
combinations of measures that avoid or sufficiently minimize take.
Further, this final rule has been designed to take into account a range
of circumstances wherein hard constraints relating to physical, safety,
weather, equipment, or other project aspects make it impossible to
follow the BMP to the letter. In addition, ODOT has stated that the
discretionary language will not be used for convenience or for ease of
operation. Therefore, based on NMFS' working relationship with ODOT, we
expect that the standard BMPs will be used in most circumstances and
situations. To help ensure that this occurs, the ODOT crews will be
extensively trained and NMFS will regularly review the program.
Comment 204: One commenter stated that the ODFW, not the ODOT
regional environmentalist, should review ODOT activities and decide if
they need a biological assessment. The commenter was concerned by the
fact that the proposed rule seemed to mandate consultation with the
regional environmental coordinator for any in-water work and that the
regional environmental coordinator would not have the specialized
knowledge to make good decisions during in-water work.
Response: The ODOT coordinates with the ODFW on all in-water work
for ODOT bridge repairs, and usually the regional environmental
coordinator is involved in the discussions as well. The ``and/or''
language is not intended to exclude the ODFW, but rather to exclude the
regional environmental coordinator in instances where that office's
participation is deemed unnecessary. Two ODFW biologists are assigned
to coordinate exclusively with ODOT on transportation issues and work
closely with ODOT regional environmental coordinators. In addition,
district biologists assist ODOT on a variety of construction and road
maintenance issues and projects.
Comment 205: One commenter stated that the final rule should allow
NMFS to approve minor variations from ODOT procedures.
Response: NMFS will exercise reasonable judgement as to whether any
minor adjustment in the ODOT road maintenance guidance requires formal
approval from NMFS and, therefore, also warrants Federal Register
publication and public comment. However to stay consistent with the
spirit of the limit, any change that would affect the substantive
protections the program provides for the environment will require a
written approval. NMFS has clarified this point by adjusting the
language in the rule.
Comment 206: One commenter provided multiple, detailed, suggestions
and critiques of the ODOT program. Each suggestion (in quotations) is
covered in the following discussion unless it is discussed in another
response.
(1) ``To the maximum extent possible, the manual should contain
enforceable standards.'' Response: Based on NMFS' extensive review of
the ODOT manual, we believe the standards described are enforceable.
For example, the first BMP for surface work requires (a) eliminating
diesel as a releasing or cleaning agent and using only environmentally
sensitive agents, (b) using heat sources to clean tack nozzles, (c)
carrying adequate erosion control supplies to keep materials out of
water bodies, and (d) disposing of excess material at appropriate
sites. All these are enforceable. The same is true for the great
majority of the BMPs for other activities.
(2) ``Protective and mitigation measures for work conducted outside
of the BMPs should be required, and they should be described.''
Response: We agree with portions of this statement. NMFS is continuing
to work with ODOT on its maintenance BMPs. In most cases, the changes
would have only minor (short-term) or no effects on habitat or fish. In
situations where not following the BMPs would adversely affect fish or
their habitat, NMFS will work with ODOT to ensure appropriate
alternative protective measures and mitigation are applied.
(3) ``The manual should describe an effective, proactive,
monitoring program for maintenance projects.'' Response: Page 3 of the
guide describes ODOT's monitoring program and it is also described in
the draft rule. Research is being conducted on several high-risk
activities such as culvert cleaning, culvert replacements, and winter
maintenance in order to gain more information about maintenance project
impacts and develop better BMPs.
(4) ``The manual should contain specific timetables for project
reviews and manual updates.'' Response: The
[[Page 42455]]
manual can be revised by ODOT in consultation with NMFS at any time.
The draft rule states that ODOT has committed to review the guide and
revise as necessary, at least every 5 years. In addition, ODOT will
annually make any necessary BMP modifications.
(5) ``Terms not in common usage should be clearly defined.''
Response: Uncommon terms are defined at the beginning of the guide
(pages ii through iv).
(6) ``Effective erosion controls and a list of specific techniques
should be defined, including a description of methods to be used during
emergencies.'' Response: Erosion control measures are described as BMPs
under each activity. Erosion control measures for emergencies are being
developed under a programmatic biological assessment.
(7) ``Mandatory work windows should be defined to protect
vulnerable life stages of salmonids.'' Response: As stated in the guide
(e.g., pages 8, 12, and 13), ODOT must use in-water work windows for
all in-water work, unless the ODFW specifically agrees otherwise. The
ODFW's in-water work guidelines are part of the guide, in Appendix C.
(8) ``Criteria for the use of bioengineering methods should be
described.'' Response: The guide states that bioengineering will be
used where possible. The ODOT currently has multiple research projects
focusing on the use of bioengineering to stabilize slopes; as the
results of the research become known, NMFS and ODOT will develop
criteria.
(9) ``Riparian management zones should be defined by water type or
the criteria used to determine riparian buffer widths [should be]
identified.'' Response: Standard buffer widths are defined on page iv
of the guide. NMFS determined that these widths provide sufficient
protection from road maintenance activities. The standard buffers also
are implementable by maintenance staff without requiring detailed
knowledge of fish presence/absence. Also, ODOT is developing detailed
maps that identify sensitive resource areas based on criteria described
in the draft rule; they will include information on overstory values,
salmonid presence, spawning habitat, off-channel areas, etc. The maps
will thus delineate areas where only certain activities may be allowed
and the ODOT maintenance staff will modify their activities
accordingly.
Comment 207: One commenter asked whether ODOT standards apply to
all streams, just water quality limited streams, or just fish-bearing
streams.
Response: The ODOT standards apply to all streams. The guide is a
statewide document for all maintenance areas, even where no listed fish
are present.
Comment 208: Several commenters stated that any routine road
maintenance program should have been included in this limit. In
particular, routine road maintenance under the Oregon Department of
Forestry's Forest Practices Act was suggested.
Response: In the final rule, the limit for road maintenance is
broadened beyond the ODOT and Oregon cities and counties to include
other jurisdictions within and outside of Oregon based upon the ODOT's
manual or which otherwise contribute to achieving or maintaining PFC.
However, road maintenance for forestry roads will not be included
because the road use and required BMPs are very different for this type
of road.
Comment 209: One commenter stated that ODOT should provide criteria
and steps to avoid, minimize, and mitigate all impacts when their
guidance cannot be followed.
Response: The ODOT's manual is intended to avoid, minimize, and
mitigate all impacts. NMFS chose to preserve ODOT's flexibility in
choosing the most practicable methods for avoiding, minimizing, and
mitigating for impacts because of ODOT's demonstrated commitment to
protecting aquatic resources.
Comment 210: Several commenters requested the elimination of the
requirement to prohibit any sediment input into the stream resulting
from routine road maintenance activities.
Response: The ODOT routine road maintenance program does not
prohibit sediment input into streams, although it presents measures to
minimize and avoid the input.
Comment 211: One commenter stated that ODOT needs to allow for road
repair during winter/wet seasons if emergency conditions dictate.
Response: The ODOT will implement BMPs when practicable, and is
responsible for coordinating repair and mitigation measures with
appropriate resource agencies in the event fishery or water resources
are damaged during a response to an emergency.
Comment 212: One commenter requested that ODOT's program be removed
as a limit because the tribes had not been given an opportunity to
review it. They stated that the guide was not available for review
through the notice.
Response: There were a total of 52 days to review the ODOT guide.
It was available through the ODOT web site and the NMFS Northwest
Region's website. This was cited in the Federal Register document
within the section titled Electronic Access. Moreover, it is NMFS'
intent to work closely with the tribes of the region to develop
improved information exchange and consultation opportunities.
Comments on the Potential Application of the Limit to Other
Jurisdictions
Comment 213: One commenter stated that the limit's requirements for
developing an Memorandum of Agreement (MOA) under which road
maintenance programs for other jurisdictions would be approved are not
specific and should be revised to provide clear direction.
Response: NMFS intentionally did not provide a detailed description
of what the MOA should include or how it should be prepared. The MOA
was intended to provide the mechanism for negotiating with various
jurisdictions about how to make sure that their program is equivalent
to the effectiveness of ODOT program in contributing to achieving or
maintaining PFC, including the tasks of training, tracking, and
reporting, and how to best apply comparable measures identified in the
ODOT guide. Based on this and other comments, NMFS has revised the
regulatory language to require ``a written agreement'' rather than a
formal MOA. That written agreement is intended to be flexible enough so
there is no need to recreate a new maintenance program or amend the
rule.
Comment 214: One commenter suggested that each jurisdiction seeking
coverage under the limit for routine road maintenance should be able to
develop its own BMPs.
Response: NMFS does not object to the use of BMPs that may be
different from those presented in the ODOT guide. NMFS is satisfied
that road maintenance activities in compliance with the ODOT guide and
program contribute to achieving or maintaining PFC. NMFS expects that
each jurisdiction seeking to apply the routine road maintenance limit
to its program will clearly demonstrate how that program either applies
equivalent measures to those specified in the ODOT guide or how it
otherwise contributes to PFC. NMFS does not necessarily expect each
jurisdiction to adopt the ODOT guide.
Comment 215: One commenter indicated that compliance and
effectiveness monitoring and adaptive management are essential to
ensure adequate protection of listed species. This commenter expressed
concern that the monitoring may not be adequate and that without
specific monitoring criteria
[[Page 42456]]
and protocols, the ability to evaluate and modify conservation measures
would be limited.
Response: NMFS agrees that monitoring is essential for assuring
that the routine road maintenance programs are being properly
implemented and that the outcomes are as expected (i.e., contributing
to PFC). The monitoring and feedback approach contained in the ODOT
program, while being somewhat non-specific, is practicable and can
provide enough information to assess compliance and effectiveness.
Comment 216: NMFS received one comment requesting that the limit
set standards for road restoration and maintenance, as well as goals
for maximum road densities.
Response: This comment is referring to forested watersheds and
watershed conservation plans. NMFS is addressing those areas primarily
through ESA mechanisms other than the road maintenance limits of the
rule (i.e., application of ESA sections 7 and 10 for Federal and non-
Federal land management practices, respectively).
Comment 217: One comment stated that there should be no specific
limits for roads--just the normal section 9 prohibitions. The commenter
was concerned that erosion caused by steep slopes and incorrectly built
roads could potentially harm listed salmon populations.
Response: NMFS agrees that soil erosion from road projects can have
adverse effects on salmon populations and their habitats. However, the
limit only applies to routine road maintenance activities; that is,
road repairs that increase the material profile are not covered under
the rule. Any activity for which a COE permit is required is not
covered by the routine maintenance program and would, in any event,
require a section 7 consultation. The ODOT's manual recognizes the
problems associated with erosion and addresses erosion repair (MMS
122). To minimize impacts, ODOT requires that erosion repair work
consider bioengineering solutions. The maintenance program requires
that ODOT maintenance staff take precautionary measures on identified
erodible areas--provided the measures can be safely applied. Taken
together with other measures ODOT is carrying out (e.g., mapping
landslide-prone areas throughout the Oregon coast), the routine road
maintenance program protects threatened salmon and steelhead adequately
to warrant a limit.
Integrated Pest Management (IPM) Activities in Portland, Oregon
Comment 218: Several commenters indicated that NMFS led them to
believe that pesticides would not be considered in this rulemaking and
that it was, therefore, unfair to proceed with a limit that accounts
solely for the Portland Parks and Recreation (PP&R) program. It was
generally expressed that various states, local entities, and agencies
should be allowed their own limit on take prohibitions as they relate
to pesticide use. Other commenters stated that the PP&R IPM program was
inadequate because it was too ambiguous, did not list the actual
amounts of pesticide being used, allowed broadcast spraying in riparian
buffers, and did not adequately address all potential pathways of
contamination.
Response: The PP&R IPM program received a limit at this time
because it is a fully-formed, conservative program. NMFS' decision
process was based on careful scientific review, investigation of
potential pathways of contamination (specific to PP&R-planned
activities), and analysis. NMFS concluded that PP&R's plan addresses
potential impacts and protects listed salmonids to an adequate degree.
A subsequent review process will be conducted one year after PP&R's
plan is adopted, additional reviews will occur every two years, and
appropriate adjustments will be made throughout the process. As NMFS
noted in the preamble to the proposed rule rates of application in
buffer strips under the PP&R IPM program range from 8 percent to 100
percent of the individual chemical label restrictions. Moreover, these
chemicals are not applied annually, rather only as needed and only as
the last resort for controlling unwanted vegetation. Use of the term
``broadcast spraying'' may be misleading. The listed chemicals must be
applied at low pressure (which results in large droplets to reduce
airborne mists), by hand wand, and only in the area where a dense
broadleaf outbreak is occurring--not the entire buffer area.
NMFS believes that with restrictions such as the ones cited here,
and looking at the program as a whole, it sufficiently protects the
listed salmonids.
Comment 219: One commenter asked if the PP&R IPM was intended to
apply to maintenance activities adjacent to all streams, just water
quality limited streams, or just fish-bearing streams.
Response: The PP&R IPM applies to all waters--regardless of their
designation (moving, water quality compromised, fish/non-fish-
bearing)--associated with PP&R managed lands. The use of pesticides
near flowing waters is more restricted than near still water (isolated
ponds).
Comment 220: One commenter stated that the PP&R IPM should require
public notice 48 hours before spraying.
Response: Currently PP&R does notify the public of tree spraying by
posting signs in the affected area 24 hours in advance. Also, on any
day other types of pesticides are being applied, signs are placed in
the park and remain there until the application is complete and any
product has dried. It should be noted, however, that this is
essentially a public health issue and is, therefore, outside the scope
of a rule making for threatened salmon and steelhead.
Comment 221: Several commenters stated that data generated by
Oregon's pesticide tracking law should be integrated with the limit.
Response: We agree that it would be useful information. The PP&R's
IPM requires an annual report to NMFS. When NMFS reviews PP&R's annual
report it will take into account new scientific data on pesticides and
their effects on listed fish (and the habitats that support them) when
making its decision whether to continue with the program as written or
require changes. Over the next year, NMFS will examine the question of
whether incorporating the information collected through Oregon's
pesticide tracking law (ORS 192.502, ORS 634.306, and ORS 634.372) into
the review process would improve that annual analysis.
Comment 222: One commenter requested that NMFS clarify that the
PP&R IPM applies only to city parks managed by PP&R.
Response: The commenter is correct. The PP&R IPM program limit
applies only to activities conducted by PP&R in Portland city parks.
Comment 223: One commenter expressed concern that the list of
chemicals does not appear to take into account chemicals already
present in surface waters. It was also stated that NMFS needs to do
more research on the impacts pesticides have on anadromous fish.
Response: NMFS agrees with the need for more research in this area.
The NMFS Northwest Fisheries Science Center (NWFSC) has recently begun
a research program to evaluate in greater detail the effects of
pesticides in the environment and their effects on anadromous fish.
This program will expand on earlier investigations by the NWFSC and
will look at the sublethal effects, synergistic effects, cumulative
effects, and effects of inert ingredients in pesticides in the aquatic
environment. NMFS will work closely
[[Page 42457]]
with EPA and state authorities which have primary responsibility for
ensuring the proper use of these products under relevant Federal and
state regulatory regimes. Should information come forward to suggest
that the otherwise-lawful use of a pesticide harms listed salmonids and
is in violation of section 9 or this rule, NMFS anticipates addressing
the concern through amendment of this rule, a section 7 consultation
with EPA, or corresponding discussions with responsible state
authorities. NMFS will employ this approach rather than favor
enforcement actions against an individual applicator for the otherwise
lawful use of the pesticide. Similarly, if NMFS finds that a limitation
on the prohibition against take for the use of selected pesticides is
necessary and advisable for the conservation of listed salmonids, it
may amend this rule accordingly. Through such a programmatic approach
NMFS believes that it will be able to achieve an orderly and
comprehensive analysis of the use of pesticides and their effects on
listed salmonids.
Comment 224: One commenter suggested that the best approach to
evaluating pesticide use under the ESA was a toxicological risk
assessment protocol based principally on the dose-response theory.
Under this approach, the commenter concludes that ``there is no
evidence that take of salmon or steelhead has actually occurred as a
result of pesticide use.'' The commenter further asserts that under a
program managed by the California EPA's Department of Pesticide
Regulation (DPR), ``there should be zero take of any listed fish,
including salmonids under NMFS' jurisdiction'' if the protocols
developed by the DRP are followed.
Response: NMFS disagrees. The NWFSC has been actively investigating
the sublethal effects of pesticides on listed salmonids for more than
two years. This research is specifically tailored to examine pesticide
effects on the life histories of anadromous fish in California and the
Pacific Northwest, and is designed to reduce the considerable
scientific uncertainty associated with pesticides. NMFS will use the
data arising out of this process to guide future decision making under
the ESA.
Comment 225: Several commenters felt the rules may unduly restrict
the critical function of noxious weed control. It was suggested that
NMFS may be discouraging lawful and environmentally beneficial use of
pesticides and herbicides.
Response: NMFS recognizes the importance of noxious weed control.
The final rule encourages development of local programs that conserve
fish while placing priority on preventing pests (weeds, insects,
disease) through non-chemical means. Noxious weeds may be controlled in
a number of ways--both with and without the use of herbicides.
Comment 226: Some commenters asserted that a regional invasive
species prevention program is needed--one that includes a protocol for
addressing expedited responses to invasive species.
Response: NMFS agrees that a regional invasive species prevention
program that includes response protocols would be beneficial. Such a
program should be developed in cooperation with state and local
government agencies, FWS, and EPA.
Comment 227: Several commenters stated that if a pesticide is used
according to the directions on the label, or in compliance with various
other state or Federal regulations, the applicator should receive a
limit on the take prohibitions.
Response: Please see earlier responses on the same general subject.
Currently, EPA has not consulted with NMFS on the use of pesticides and
their impact on listed anadromous fish and their habitat. Therefore,
applying pesticides in accordance with current label directives, EPA
guidelines, or interim state measures for pesticide use, is not, de
facto, exempt from the possibility of ``take.'' EPA's Office of
Pesticides Program will initiate consultation on a limited number of
EPA-registered pesticides with NMFS SWR later this year and, depending
on the outcome of that process, NMFS will continue to seek such
consultations on registered pesticides. NMFS also hopes to begin
consultations on those pesticides being considered for registration. In
any case, NMFS recognizes that the above restrictions (labels, state
guidance, etc.) constitute the only protective guidelines currently
available to applicators. Therefore, NMFS will work with the
responsible agencies to determine the extent to which restrictions on
pesticide use need to be adapted to meet listed salmonid needs and, as
that process goes forward, individual applicators may look to those
agencies and NMFS to provide appropriate guidance in the future.
Comment 228: Two commenters suggested that NMFS should not rely on
local solutions for pesticides, since three of the four states have
laws preempting local pesticide regulation.
Response: The PP&R IPM program does not regulate pesticides. It
directs the limited application of pesticides by a local government
agency. NMFS is confident that PP&R has the authority to direct its
application program.
Comment 229: One commenter asked that NMFS clarify its definition
of a pesticide to include any substance that is considered an
herbicide.
Response: The commenter is correct about the definition of a
pesticide. According to EPA, the term ``pesticide'' includes all
herbicides, insecticides, fungicides, rodenticides, repellents,
disinfectants, and other compounds that kill, control, or otherwise
affect pests. The final 4(d) rule will incorporate this definition for
the term ``pesticide.''
Municipal, Residential, Commercial, and Industrial Development Limit
a. Clarification of Where and How This Limit Applies
Comment 230: Many commenters requested that the final rule clarify
where and how ``this limit'' applies. One commenter asserted that the
rule was so unclear as to require that the limit be removed entirely.
Response: NMFS has attempted to remove vague and confusing language
from this final rule and to clarify where the limit applies. This
particular limit is intended to apply to a broad range of planning
efforts, ordinances, regulations, and programs (promulgated by city,
county, and regional governments) that conserve listed salmon and
steelhead by regulating or otherwise limiting activities associated
with MRCI development. Some examples are wetland protection ordinances,
shoreline management and development programs, and urban growth
management plans. Such activities are not necessarily limited to
``urban'' areas, because city, county, and regional governmental
jurisdictions extend to suburban and rural areas as well. NMFS has,
therefore, clarified the intended scope of this limit by replacing the
term ``new urban density development'' with ``municipal, residential,
commercial and industrial (MRCI) development'' to signify activities
undertaken by cities, counties, and regional governmental entities in
urban, suburban, and rural areas.
Comment 231: One commenter requested that the ESA 4(d) limit for
urban development be more streamlined than the process for developing
and approving an HCP.
Response: Once local ordinances or plans are approved, the process
of implementing MRCI development activities will be very streamlined.
The responsibility for subsequent project review, approval compliance,
monitoring, and enforcement will rest with the local jurisdiction. NMFS
will
[[Page 42458]]
review each project's monitoring plans; however, we will not have a
role in individual project reviews. In addition, any subsequent ESA
section 7 consultations for individual projects for which there is a
Federal nexus should be greatly simplified because the consultation
will be able to tier off the local jurisdiction's initial analysis. The
initial ordinance approval process, while subject to the same review
standard as a section 7 consultation or section 10 permit application
(i.e., individual ordinances must allow for properly functioning
habitat conditions) should be considerably more streamlined than the
HCP process because the procedural requirements are less complex (e.g.,
implementing agreements and NEPA analysis are not required for programs
under the take limit).
Comment 232: Several commenters questioned whether the limit
applies to the redevelopment of areas that no longer support salmon,
and recommended that development along piped segments of low gradient
streams should receive a limit on the take prohibitions. Others
contended that the rule should address current and ongoing impacts from
urban developments.
Response: If a stream segment or aquatic feature does not currently
and has not historically supported salmonids, the limit only applies to
the extent that downstream areas which do support salmonids rely on
appropriate input of ecological element (litter fall, gravel
recruitment, cold water, large wood, etc.) from above to achieve PFC.
As a local project goes through the permit process, the existing
condition of a stream segment within a watershed and its contribution
to the ecological conditions essential to listed fish must be taken
into account when determining whether and how a redevelopment project
meets the local ordinances. It is the local jurisdiction's
responsibility to determine how ordinances are implemented during the
redevelopment of degraded areas. At a minimum, the ordinances must
delineate the process for considering the redevelopment of degraded
areas.
Comment 233: Several commenters observed that recovering PFC in
large urban core areas is unrealistic.
Response: PFC requires the maintenance of habitat functions
essential to the survival and recovery of listed salmonids, wherever
those requirements may be found. NMFS agrees that many of the rivers
and streams that flow through heavily industrialized or otherwise
developed city centers cannot practically be expected in the near-term
to resemble a rural river reach in PFC. The concept of PFC recognizes
and accommodates the fact that essential ecological functions may be
different in spawning and rearing habitats often found in forested
environments, for instance, than in migratory corridors, often found in
urban settings. Nevertheless, the highly modified habitat in urban
settings still must maintain certain ecological functions that remain
crucial to the listed species' survival and recovery. In the long run,
most parcels in existing urban areas will eventually be redeveloped and
restoration opportunities pursued. Urban rivers and streams will thus
gradually recover more and more habitat functions over the upcoming
decades.
Comment 234: Many commenters contended that the rules should
include any (not just new) development (or redevelopment) inside or
outside of the Urban Growth Boundary (UGB) or Urban Reserve Area (URA)
in any of the affected states. In addition, many others stated that the
proposed rule does not adequately distinguish between what is expected
of the various kinds of development and redevelopment.
Response: NMFS agrees with the commenters that it is the activity,
not necessarily the jurisdiction, that must contribute to achieving or
maintaining PFC and has renamed and modified this limit to apply to
MRCI development.
Comment 235: Some commenters questioned the need to treat
development limits for urban and rural landscapes differently. They
argued for the need to accommodate mature urban areas to protect the
rural areas.
Response: NMFS agrees that properly functioning habitat, as
described in section Sec. 223.203(b)(12)(ii) of the regulatory language
of this final rule, must be found in both urban and rural landscapes
and is the foundation of this limit. NMFS also understands, however,
that development in rural landscapes often requires different
considerations than it does in urban landscapes. It is true that some
rural developments, such as destination resorts or high-density
residential development along rural shorelines, are quasi-urban in
nature and have similar effects on salmonids and their habitats. The
reverse can also be true. Conserving and restoring functional habitats
depends largely on allowing natural processes to increase their
ecological function, while at the same time removing adverse impacts
from current practices. Those functional requirements apply regardless
of where or how development takes place.
Comment 236: Some commenters requested that NMFS make clear that
simply because the rule references the Metro Functional Plan, it does
not mean that local jurisdictions must follow that proprietary program.
Response: Metro's Urban Growth Management Functional Plan applies
only to the Metro region, that is Clackamas, Multnomah, and Washington
Counties and the 24 cities in the Portland, Oregon metropolitan area.
In order to accomplish the Plan's goals, local jurisdictions will have
to take a number of actions--primarily by changing local government
comprehensive plans and implementing ordinances. Other jurisdictions
wishing to apply for an ESA 4(d) limit must craft their own plans in
the context of local circumstances. NMFS notes that Metro has not yet
submitted its Urban Growth Management Functional Plan to NMFS for
consideration as a limit to the take prohibition, nor has NMFS approved
it for that purpose. If Metro applies for a limit under this final
rule, it will be evaluated at that time using the review process
described in this rule.
Comment 237: Some commenters stated that NMFS should not allow this
limit for the Tri-County planning effort in Washington State because
Tri-County's proposal is ``business as usual,'' and because the Tri-
County implementation process would take too long to provide for
salmonid recovery. Others felt linkages should be created between the
Urban Development limit and the watershed plans in the proposed Tri-
County framework.
Response: NMFS strongly disagrees with the general tenor of this
comment and continues to actively support and encourage the Tri-County
process. Certainly the negotiations are addressing difficult and
complex issues. NMFS remains hopeful that these negotiations will yield
agreements consistent with the requirements of the ESA and the listed
fish. If Tri-County applies for a limit under this final rule, it will
be evaluated at that time using the review process published in this
final rule.
Comment 238: One commenter urged NMFS to include a limit for the
CALFED-Bay Delta Program and other California programs.
Response: Applying for a limit under the ESA 4(d) rule is a
voluntary process. Any jurisdiction or organization may negotiate with
NMFS to create a plan and submit that plan for consideration under the
MRCI limit. Such entities are also encouraged to bring to the table
other types of limits that could be covered in a subsequent 4(d) rule
and develop other plans to conserve the listed species.
[[Page 42459]]
b. Local Government Cost and Staffing Resources
Comment 239: One commenter expressed concern that the cost of
mandatory setbacks would discourage redevelopment of brownfield areas.
Response: Different jurisdictions have the flexibility to tailor
riparian management areas in urban brownfield areas to match local
needs and conditions, provided they result in properly functioning
habitat conditions.
Comment 240: Many commenters expressed concern that smaller
jurisdictions do not have the staff and resources needed to comply with
the urban development limits. One commenter asked for an explanation of
``adequate funding.''
Response: Ordinances or plans under which activities will be
evaluated must be shown to meet PFC as illustrated by the applicable 12
considerations listed in this final rule, including the fact that the
jurisdiction in question must demonstrate that it has the ability to
enforce, monitor, and fund its obligations under the ordinance.
c. Implementation of the 12 Considerations
Comment 241: Many commenters asked NMFS to clarify how the 12
considerations are to be implemented or applied. Some thought the rule
was too cumbersome and onerous, and, therefore, should be delayed or
phased in. Others requested that NMFS not allow a phase-in approach.
Response: As the rule describes, NMFS evaluates activities that
produce or result in conditions on the landscape that contribute to
properly functioning (habitat) condition. Under this limit, NMFS will
analyze MRCI ordinances and plans and determine if they will affect a
condition on the landscape that is important to essential habitat
functions. NMFS will then determine if that effect actually results in
conditions that are likely to provide essential habitat functions; if
it does, then the ordinance or plan may qualify for a limitation of the
take prohibition.
The 12 considerations described in the MRCI development limit
describe specific considerations that NMFS will evaluate when looking
at MRCI development ordinances and plans. They are based on current
scientific understanding of salmonid biological requirements (e.g.,
Spence et al., 1996; NMFS, 1996). By assessing these 12 considerations,
NMFS expects to evaluate the ordinances' efficacy in attaining (or
maintaining) essential habitat functions or properly functioning
conditions in various physical settings.
Comment 242: Several commenters questioned whether the proposed
rule requires compliance with all 12 considerations. Some stated that
NMFS should not require that all 12 considerations in the urban limit
be satisfied at once.
Response: NMFS acknowledges that in addition to the comprehensive
Functional Plan being developed by the Metro regional government in
Oregon, other local planning entities are making significant progress
in developing innovative MRCI ordinances and programs (e.g., the
efforts by the Tri Counties and Kitsap County in Washington State). Not
all local or regional governments have the resources to assemble all of
their relevant ordinances and planning provisions into a comprehensive
MRCI growth management program. NMFS is willing to assist such entities
by reviewing individual ordinances or regulations that local
governments may choose to submit for consideration under this MRCI
limit. NMFS will still apply the 12 considerations in evaluating the
likelihood that any given ordinance or regulation will achieve properly
functioning conditions for salmonid habitat, but will recognize that
some criteria may be less relevant than others--depending on the scope
of the particular ordinance.
Because NMFS has a relatively limited number of staff members to
review a potentially significant number of individual MRCI planning
ordinances, plans, and regulations, NMFS strongly encourages local and
regional governments to assemble comprehensive planning packages such
as Metro's Functional Plan. Not only is this a more expeditious and
efficient approach, it results in a greater likelihood that the MRCI
growth management program will protect the full suite of essential
habitat functions. In any case, because staff resources are limited
NMFS will generally give comprehensive plans rather than individual
ordinances priority in the review process.
Comment 243: One commenter requested that NMFS state whether the
Metro plan meets the 12 considerations.
Response: Metro has not yet submitted its Urban Growth Management
Functional Plan to NMFS for consideration as a limit to the take
prohibition, nor has NMFS approved it for that purpose. If Metro
applies for a limit under this final rule, it will be evaluated at that
time using the review process described in this final rule.
d. NMFS' Approval
Comment 244: Many commenters wanted to know how NMFS would approve
applications for inclusion in the take limit. Some commenters suggested
that NMFS needs to establish a rule with a minimum set of clear and
objective performance standards. Other comments suggested that NMFS
should work with state agencies to develop state programs that meet
some or all of the limit in order to help small, financially challenged
jurisdictions.
Response: The 12 considerations represent evaluation considerations
that, if addressed, will help conserve listed salmonids. When a local
jurisdiction has an MRCI ordinance or plan it believes will attain or
maintain properly functioning conditions, it is encouraged to pursue
approval. NMFS will work directly with that entity to develop a product
that meets the listed species' needs. However, as noted earlier, local
jurisdictions are strongly encouraged to assemble, to the greatest
extent practicable, all relevant MRCI development ordinances,
regulations, or plans into comprehensive packages that NMFS can review
in total. Such an approach is not only more efficient, it has a much
greater likelihood of ensuring adequate conservation of salmonid
habitat conservation than do individual ordinances. Before approving
any application, NMFS will publish a notice in the Federal Register
announcing the availability of the application for public review and
comment. The comment period will be not less than 30 days.
Comment 245: Some commenters desired to know what NMFS meant when
it said it would evaluate the limit on a regular basis.
Response: NMFS anticipates that each limit will be monitored during
the life of the plan to ensure that management actions are meeting
their intended purposes. Specific management actions arising under the
plan will be compared with the conservation objectives to ensure
consistency with the intent of the plan. Annual monitoring reports will
be required and formal plan evaluations will take place at broader
intervals--though not greater than 5 years. These evaluations will
assess the progress of the plan toward meeting PFC, determine if the
management actions are making satisfactory progress toward achieving
the stated objectives, ensure that the actions are consistent with
current policy, check the original assumptions to see if they were
correctly applied, assess whether the impacts were correctly predicted,
ensure that the mitigation measures are
[[Page 42460]]
satisfactory, and determine whether new data are available that would
require altering the plan.
e. Level of Protection Provided
Comment 246: Many commenters asked NMFS to clarify what parts of
the limit are binding and what are not.
Response: The final rule does not establish any binding
requirements or regulations on any prospective applicants with respect
to measures that must be followed to qualify for the take limit.
Instead, the final rule defines both the considerations and the process
NMFS will use when reviewing any particular ordinance or plan. Once
NMFS has reviewed and approved a proposal for inclusion in the limit,
the applicant is bound by the substantive requirements established in
the subject ordinance or plan; these will be documented in the relevant
monitoring, reporting, and enforcement provisions. The final rule
clearly describes NMFS' authority to withdraw the limit in instances
where the applicant does not diligently implement the approved
measures.
Comment 247: Many stated that the Metro Functional Plan was far too
restrictive; many others thought it not restrictive enough.
Response: The limit does not hold out the Metro Functional Plan as
a standard. Metro has not yet submitted its Urban Growth Management
Functional Plan to NMFS for consideration as a limit to the take
prohibition, nor has NMFS approved it for that purpose. In fact, NMFS
understands that the plan is not yet complete. If Metro applies for a
limit under this rule, it will be evaluated at that time using the
review process described in this final rule.
Comment 248: One commenter asked NMFS to identify and give take
prohibition limits to land development activities that will not harm
listed salmonids.
Response: Development actions that do not harm salmonids or their
habitats are not affected by the take prohibition. It is not within the
scope of this final rule to identify the vast number of activities
(including many development activities) that do not harm listed
species. However, unmanaged development activities could frequently
frustrate attempts to meet the 12 evaluation considerations within this
rule and commonly are among those that have historically destroyed or
adversely modified critical habitats. On the other hand, activities
that are carried out according to limits provided by this final rule
are expected to adequately protect listed salmonids and contribute to
their conservation.
Comment 249: One commenter expressed concern that giving local
jurisdictions a ESA 4(d) limit would not, by itself, help enforce local
actions necessary to conserve listed salmonids.
Response: Local jurisdictions are charged with developing and
carrying out land use programs within the range of listed salmonids.
Although those plans can be revised to be consistent with scientific
information used to develop this limit, those same plans are still
defined and administered through laws and regulations. Ensuring
compliance with these laws and regulations is a key factor in making
the plans successful. Eligibility for this limit, therefore, requires
those plans to include effective enforcement programs and measures to
educate local citizens, encourage voluntary compliance, and detect and
address violations.
Comment 250: One commenter asserted that limits for urban
development should be analyzed within the cumulative impact context.
Response: NMFS agrees that cumulative effects should be an
important consideration in MRCI effects analyses. NMFS is aware that
comprehensive MRCI development plans frequently will rely upon
watershed scale efforts to achieve PFC by managing rural and
agricultural activities in coordination with the cumulative effects of
more-urban development. To the extent that NMFS must prioritize the
evaluation process, comprehensive MRCI plans with relatively broader
scopes of activities, authorities, effects, and geography (and
therefore greater flexibility in dealing with cumulative effects) will
generally be evaluated before plans with relatively smaller scopes.
Applicants with smaller-scale plans should take particular care that
their effects analyses take cumulative impacts into account.
f. Habitat Restoration
Comment 251: One commenter felt the new urban density development
limit should require local governments to address habitat restoration
and rehabilitation.
Response: This limit applies to jurisdictions that carry out
development in a way that adequately limits impacts on listed salmonids
or contributes to their conservation. Habitat restoration would be
applicable when it is necessary to rehabilitate former poorly designed
or implemented practices to achieve properly functioning conditions for
listed salmonids within that jurisdiction. A specific limit for habitat
restoration activities is provided in this final rule.
g. Scientific Justification
Comment 252: Some commenters assert that NMFS has not provided
adequate scientific justification for this limit. For example, one
comment requested that NMFS justify why the little remaining habitat is
important to listed fish, and specifically, what evidence exists to
support the need for vegetative cover for the entire length of a
stream.
Response: Neither Federal Register documents nor U.S. Code is
written in scientific style, with its thorough support of factual
assertions through citations. Nevertheless, NMFS is confident that its
conservation approach in the MRCI limit (and elsewhere in this final
rule) is scientifically credible. As starting points for investigators,
NMFS recommends Simenstad et al, 1982, NRCC, 1996, Palmisano et al,
1993, Gregory and Bisson, 1997, Spence et al, 1996. Essential features
of salmonid habitats include adequate substrate, water quality, water
quantity, water temperature, water velocity, cover/shelter, food,
riparian vegetation, space and safe passage conditions In designating
critical habitats, NMFS considers the following requirements of the
species: (1) Space for individual and population growth, and for normal
behavior; (2) food, water, air, light, mineral, or other nutritional or
physiological requirements; (3) cover or shelter; (4) sites for
breeding, reproduction, or rearing of offspring; and, generally, (5)
habitats that are protected from disturbance or are representative of
the historical geographical and ecological distributions of the species
(65 FR 7764, February 16, 2000).
Vegetative cover is good for a number of essential habitat features
such as water quality, water temperature, bank stability, stream
complexity, cover/shelter, and food. In MRCI environments, the loss of
riparian vegetation, coupled with reduced base flows, causes streams to
heat up more during summer. In addition, the lack of large wood
recruitment combined with increased peak flows heightens the severity
of streambed scouring and downstream wood transport. This causes stream
channel simplification and greater instability. In order to reverse the
downward population trend for listed salmonids and steelhead, the
structure and function of their aquatic habitats must be restored to
whatever degree possible.
[[Page 42461]]
h. Specific Comments on the 12 Considerations
12.i.A. Siting Development
Comment 253: One commenter requested a definition of ``area of high
habitat value.''
Response: This phrase refers to an area in a PFC, one that is
better functioning than neighboring sites, or one with the potential to
be fully restored. To achieve properly functioning condition and high
habitat values within an MRCI area, new and existing riparian
management areas need to be connected across land ownerships and
political jurisdictions whenever land is developed or redeveloped, or
brought into an urban growth boundary.
Development activities should be sited in appropriate areas. They
should avoid unstable slopes, wetlands, areas already in a PFC, areas
that are more functional than neighboring sites, and areas with the
potential to be fully restored. A description of particularly sensitive
areas is included in the Fish and Forest Report cited elsewhere in this
final rule. Such sites include, but are not limited to, soils
perennially saturated from a headwall or a sideslope seep or spring,
permanent initiation points of perennial (stream) flow, alluvial fans,
the intersections of two perennial streams. Development activities in
any particular jurisdiction need to be open to coordination with
adjacent jurisdictions to ensure landscape-scale conditions are
providing essential habitat function.
12.i.B. Stormwater Management
Comment 254: Many commenters asserted that the stormwater
consideration was poorly defined and urged that NMFS establish stronger
and more specific stormwater standards. Others felt that NMFS should
allow flexibility in regional performance standards and in areas where
avoiding stormwater impacts is not feasible. One comment suggested
replacing stormwater discharge language with specific methods for
reducing development effects.
Response: NMFS believes that applying the same standards and
considerations to all jurisdictions will not provide the most effective
stormwater management because different methods will be more effective
in different jurisdictions--depending on factors such as the existing
land use in the subbasin or watershed, soil types, rainfall patterns,
the degree to which the natural stream hydrograph has been altered,
etc. NMFS will consider these factors, methodologies, and standards
when reviewing city, county, and regional government ordinances for
approval.
Comment 255: Some commenters stated that in an urban setting, it
may not be advisable or feasible to protect or restore historic stream
hydrographs and meandering processes. They asserted that the phrase
``where feasible'' should be added to stormwater and meander
provisions.
Response: It is NMFS' intention to use the best available
technologies to determine the most economic means to contribute to the
achievement and maintenance of properly functioning conditions. NMFS
believes this provision is justified by the need to significantly
improve habitat conditions in a given MRCI area and thereby reduce the
risks to listed species and ensure that they have an adequate potential
for recovery. This can be accomplished by guiding land use practices on
the watershed scale in order to reduce impervious surfaces, maintain
forest cover, and natural soils. These conditions will, in turn,
maintain essential habitat processes such as natural water infiltration
rates, transpiration rates, stormwater run-off rates, sediment
filtering, and provide hydrographic conditions that maintain and
sustain listed salmonids. Where stream hydrographs cannot be restored,
compensatory mitigation should be provided to offset the loss of
habitat function. Mitigation may include stream corridor restoration by
reestablishing pre-development hydrological regimes, controlling
pollution sources, stabilizing channel morphologies, engaging in
sediment remediation, restoring instream structure, and reestablishing
riparian cover. Many of these activities may be guided by watershed
scale planning and analysis which includes management of rural and
agricultural activities.
Comment 256: Some commenters requested further clarification on
peak flows and desired that NMFS place emphasis on biologically
significant flows (i.e., water velocities suitable for juvenile fish)
instead of peak flows.
Response: Changes in hydrological processes associated with the
effects of MRCI development typically result in a flow regime that is
more episodic and generates higher peak flows, faster runoff, and
reduced base flows during periods without precipitation. Peak flows and
base flows are both ecologically significant. Peak flows are primary
agents of instream and riparian habitat change during storm events.
Base flows sustain aquatic life during dry portions of the year. Other
hydrological characteristics are also significant in the design of
stormwater systems, for example, the need for water velocities suitable
for juvenile salmonids.
Stormwater management programs associated with MRCI development
activities should avoid impairing water quality and quantity. Such
programs should preserve or move stream flow patterns (hydrograph)
closer to historic hydrologic conditions (e.g., peak flows, base flows,
durations, volumes, and velocities) that maintain properly functioning
habitat conditions. This can be accomplished by guiding land-use
practices at the watershed scale in order to reduce impervious
surfaces, maintain forest cover, and retain natural soils. These
conditions will, in turn, maintain essential habitat processes such as
natural water infiltration rates, transpiration rates, stormwater run-
off rates, sediment filtering, and provide hydrographic conditions that
sustain aquatic life. NMFS will evaluate the effects that city and
county ordinances (submitted for approval under this limit) have on
relevant hydrologic processes.
12.i.C. Riparian Management Areas
Comment 257: Many commenters were concerned that the riparian
management requirements were vague and uncertain. Some viewed this as
creating opportunities to evade the intent of the riparian provision,
while others wanted NMFS to make clear the fact that the intent was to
be flexible and non prescriptive.
Response: The goal of MRCI riparian management is to protect and
restore properly functioning riparian condition. To achieve this goal,
programs must protect and restore soil quality--including controlling
erosion and conserving soil productivity--and ensure that a diverse
plant community with a vigorous age class distribution is well-
distributed across a riparian management area. This contributes to the
natural succession of riparian vegetation, produces habitat features
essential to fish health, and protects water quality and flow
conditions needed to meet fish habitat needs downstream. In MRCI areas,
where riparian areas are usually subject to frequent and pervasive
disturbance, the overland movement of nutrients, pesticides, and
sediment can be pervasive. Thus, properly functioning MRCI riparian
areas must also intercept and immobilize large pollutant loads, reduce
runoff energy, and decrease the amount of nutrients being delivered to
the streams. NMFS is not able to define the specific management
strategies needed to achieve PFC in every conceivable situation
involving a
[[Page 42462]]
riparian area, particularly where a restoration component is necessary.
The basic goal of riparian management is to establish management that
allows the riparian area to proceed on a growth and succession pathway
toward a mature riparian condition. As noted earlier, mitigation should
be developed for functions that cannot be maintained or restored at the
site level and may likely require watershed-scale planning. As several
commenters requested, this allows different jurisdictions the
flexibility to tailor riparian and wetland management to match local
needs and conditions.
Comment 258: A large number of commenters addressed the appropriate
width of urban riparian management areas. Many comments focused on
management area width without regard for location, riparian
composition, or management strategy. One comment noted that the width
of the urban riparian management area was greater than for lands
affected by the Washington forest practice limit.
Response: There are differences in ecological function among
riparian areas in the MRCI and forest management settings. These
include the relative importance of pollutant and runoff control, the
distribution of nutrient cycling and energy flow, and the efficiency of
natural recovery mechanisms. However, the need to define properly
functioning condition based on the salmon's biological requirements
does not vary by land use type.
NMFS' evaluations of MRCI development are significantly influenced
by a body of science indicating that essential habitat functions are
affected to varying (but significant) degrees by streamside activities
conducted within a distance equal to the height of the tallest tree
that can grow on that site (known as the site potential tree height).
This was the basis for the example in the preamble to the proposed rule
that used 200 feet (60.9 meters) as the approximate span of a site
potential tree height. The distance is measured not from the stream
itself, but from the edge of the area within which a stream naturally
migrates back and forth over time (the channel migration zone).
NMFS believes that the most effective way to ensure PFC is to
manage MRCI development activities in riparian areas so that their
impacts on habitat functions are minimal at the streamside, but may
gradually increase with distance from the stream. For example, the
riparian area is often managed with two zones, an inner zone that has
the highest level of protection and is managed primarily to provide
stream function by avoiding disturbance, and an outer zone managed for
both stream function and as a transition to more heavily used upland
areas. The width of each zone should be commensurate with the functions
they are intended to provide and, in MRCI settings, reflect the need to
buffer an upland disturbance regime that may be more severe than in
forest lands; e.g., more frequent entry by humans and domestic animals
or exposure to large amounts of nutrients, pesticides, and sediment.
Comment 259: Several commenters supported a preference for using
native riparian vegetation.
Response: NMFS agrees that to meet the final rule's intent,
existing native trees and other native vegetation in riparian areas
should be protected and native vegetation should be used for
restoration plantings wherever appropriate native stock are available
to meet the project needs. Non-native stock or seed should only be used
after a good faith attempt has been made to locate native materials. If
native materials are unavailable, ecologically functional equivalents
that are known not to be aggressive colonizers may be substituted. When
the scope of an MRCI redevelopment activity may include modifying a
riparian site with existing, non-native vegetation, it may be important
to restore native vegetation on the site in order to generate the
essential habitat functions discussed above.
12.i.D. Stream Crossings
Comment 260: Several commenters requested clearer criteria for
culvert installation and bridge crossings. Some wanted the referenced
guidance document to be included in the final rule.
Response: Activities such as road and stormwater system design and
construction or placement of utility corridors should avoid stream
crossings wherever possible in order to prevent soil disturbance and
sediment and flow problems in the stream. Where a crossing is
unavoidable, the condition of the crossing should minimize its affect
by preferring bridges over culverts; sizing bridges to a minimum width;
designing bridges and culverts to pass at least the flow level and
debris associated with a 100-year flood event; and meet ODFW or WDFW
criteria (ODFW's Oregon Road/Stream Crossing Restoration Guide, Spring,
1999 and WDFW's Fish Passage Design at Road Culverts, March 3, 1999).
These two documents will be included in a guidance document to be
published by NMFS at the same time as this final rule.
Comment 261: Many commenters stated that new and existing linear
facilities--such as utility corridors--that cross rivers and streams
should be included in this section. Other commenters wanted the
language ``wherever possible'' used in the sentence ``avoid stream
crossings by roads wherever possible'' to be strengthened or deleted
because it creates a loophole. In general, they desired that NMFS
establish criteria to determine if a crossing is necessary.
Response: Linear facilities will be included in the stream crossing
section of this final rule. As to the necessity of individual
crossings, NMFS believes the city or county jurisdictions should
perform the lead role in developing these criteria. The applicable
state fish and wildlife agency can provide considerable guidance in
developing these criteria--both through their existing codes and
regulations and in their guidance documents (listed previously in this
rule).
12.i.E. Channel Migration Zones
Comment 262: One commenter requested an explanation of the term
``channel migration zone'' (CMZ) and asked that it be linked to
landscape features that developers and planners can understand.
Response: A CMZ is defined by the lateral extent of active channel
movement along a stream reach over the past 100 years. Evidence of
active movement over the 100-year time frame can be inferred from
aerial photos or from specific channel and valley bottom
characteristics and it was chosen for that reason. Also, this time span
typically represents the time it takes to grow mature trees that can
provide functional large woody debris to streams. A CMZ is not
typically present if the valley width is generally less than two
bankfull widths, is confined by terraces, no current or historical
aerial photographic evidence exists of significant channel movement,
and there is no field evidence of secondary channels with recent scour
from stream flow or progressive bank erosion at meander bends.
Comment 263: One commenter requested that no bank hardening be
allowed within the CMZ.
Response: Gradual bank erosion and meander migration within the CMZ
are important ecological processes that provide geomorphic diversity
and enable habitat development. Constructing rigid bank protection
structures within the CMZ can prevent properly functioning conditions
from being attained because it disrupts natural channel processes and
initiates
[[Page 42463]]
a cycle of altered erosion patterns flanked by new bank protection
measures. The end result can be an entire reach being lined with rigid
bank protection.
Where erosion within a CMZ is an issue, bank erosion should be
controlled through vegetation, carefully bioengineered solutions, or
other innovative ``soft'' bank protection techniques that allow
eventual deformation by channel forming processes. Rip-rap blankets or
similar hardening techniques should be avoided unless bioengineered
solutions are not possible because of particular site constraints. NMFS
finds that WDFW's publication, Integrated Streambank Protection
Guidelines'' (June, 1998) can provide sound guidance with respect to
controlling bank erosion, particularly in the area of mitigation for
gravel recruitment.
Comment 264: One commenter supported the concept of protecting the
CMZ in streams and floodplains, and requested that the same protection
be extended to prevent bank hardening in lake, estuarine, and marine
shorelines.
Response: NMFS agrees that natural geomorphic diversity and habitat
development are important in all fish-bearing waters, including
estuarine and marine systems where the habitat formation processes of
many wetlands, shorelines, and waterways have been impaired by the
construction of dikes, levees, breakwaters, sea walls, shore protection
systems, ports, moorages, and other hardened structures. While the CMZ
concept itself is only applicable to systems with a definable channel,
it is NMFS' intent to address, avoid, and minimize these habitat
threats whenever such structures are constructed or maintained.
12.i.F. Wetlands
Comment 265: One commenter recommended that some wetlands be
excluded from the take prohibitions and suggested that not every
disturbance in a wetland management area should be prohibited.
Response: Take is prohibited. In general, MRCI development
activities should protect wetlands and the vegetation surrounding them
and thereby conserve natural wetland succession and function. The
reason for this is that wetlands and their associated ecotypes support
salmonid food chains, protect shorelines, purify water, store water
during flood events, recharge groundwater, and provide specialized
habitat for rearing and migrating salmonids.
Drained hydric soils that are now incapable of supporting
hydrophytic vegetation because of a change in a water regime are not
considered wetlands. The basic goal is to establish management that
allows wetlands to maintain ecological functions, not to exclude all
disturbances. Activities conducted in a wetland management area are
generally subject to the COEs' permitting process under section 404 of
the CWA and are necessarily subject to ESA section 7 consultation.
12.i.G. Hydrologic Capacity
Comment 266: Some commenters requested that NMFS clarify its intent
in protecting hydrologic capacity.
Response: MRCI development activities should preserve intermittent
and perennial streams' hydrologic capacity to pass peak flows.
Decreasing the hydrologic capacity of stream systems by filling in the
stream channel for road crossings or other development can increase
water velocities, flood potential, and channel erosion, degrade water
quality, disturb soils and groundwater flows, and alter vegetation
adjacent to the stream. Preserving hydrologic capacity provides
conditions needed to maintain essential habitat processes such as water
quantity and quality, streambank and channel stability, groundwater
flows, and riparian vegetation succession. Filling and dredging in
stream channels should be avoided unless they occur in conjunction with
an unavoidable stream crossing.
Comment 267: One commenter referred to the need to strengthen the
Metro Title 3 flood management standards and ensure that riverine and
floodplain systems are reconnected and historic floodplain functions
are restored.
Response: Metro is currently seeking to improve Title 3 as part of
a broader effort to comply with Oregon's statewide Planning Goal 5--the
state's land use goal for natural resource and open space protection,
and Oregon Administrative Rule 660, Division 23 (the ``Goal 5 rule'').
This effort is focused specifically on strengthening Title 3 by adding
a program to protect, restore, and enhance fish and wildlife habitat
functions in urban riparian corridors. NMFS is participating in a
technical advisory role. Metro has not yet submitted its Urban Growth
Management Functional Plan to NMFS for consideration as a limit to the
take prohibition, nor has NMFS approved it for that purpose. If Metro
applies for a limit under this final rule, it will be evaluated at that
time using the review process described in this final rule.
12.i.H. Landscaping
Comment 268: Two commenters suggested more stringent standards for
landscaping. One commenter proposed that watering, as well as
fertilizers, pesticides, and herbicides, be eliminated in urban
landscapes; the second proposed regulations requiring the use of native
vegetation to reduce water use.
Response: Residential and commercial landscaping can be designed,
installed, and maintained to reduce the need for water, herbicides,
pesticides and fertilizer. Doing so will help maintain essential
habitat processes by conserving water, reducing flow demands that
compete with fish needs, and decreasing the amount of chemicals that
contribute to water pollution in streams and other water bodies that
support salmonids. NMFS relies on local ordinances to address planting
and water use.
12.i.I. Erosion/Sedimentation
Comment 269: One commenter asked that NMFS clarify its expectations
for erosion control measures.
Response: MRCI development activities should prevent erosion and
sediment run-off during and after construction and thus prevent
sediment and pollutant discharges. At a minimum, these activities
should include detaining flows, stabilizing soils, protecting slopes,
stabilizing channels and outlets, protecting drain inlets, maintaining
BMPs, and controlling pollutants. This can be accomplished by applying
seasonal work limits, phasing land clearing, maintaining undisturbed
native top soil and vegetation, etc.
12.i.J. Water Supply/Screening
Comment 270: Several comments called for caution and flexibility
concerning water supply development and water diversion screening;
others wanted specific restrictions not identified in the proposed rule
or mandatory conservation measures for existing developments.
Response: Water supply development can profoundly affect surface
and groundwater hydrological processes. Water supply demands should be
met without impacting flows needed for threatened salmonids--either
through direct withdrawals from the streams or through groundwater
withdrawals. Water diversions should be positioned and screened to
prevent salmonid injury or death. When existing regulations do not
protect the stream flows that salmon need, appropriate additional
measures will need to be identified before NMFS
[[Page 42464]]
approves an MRCI development ordinance.
12.i.K. Enforcement, Funding, Reporting, etc.
Comment 271: Several commenters supported the monitoring provisions
and requested that specific monitoring and implementation programs be
described. In contrast, others concluded that by including all
necessary enforcement, reporting, and implementation mechanisms NMFS
has the potential to be arbitrary in its review of programs. It was
suggested that NMFS make the reporting requirement biennial instead of
annual.
Response: During the ordinance or plan development and approval
process, NMFS will work closely with the local jurisdiction to identify
and develop those monitoring mechanisms applicable to the listed
species, their habitat, and the local jurisdiction. The existing
condition of the salmonid habitat in the watersheds, the rate of
projected growth, and other factors will be used as a baseline for the
monitoring.
12.i.L. Comply with Other State and Federal Laws
Comment 272: Some commenters wanted to exclude this provision
because they believed it exceeded NMFS' authority and because other
programs exist to assure compliance.
Response: This subsection notifies applicants of the continuing
obligation to ensure that their developments comply with existing state
and Federal rules and regulations, as well as with this final rule in
order to be eligible for the limit to the take prohibition. Further, an
applicant should automatically assume that compliance with the this
final rule necessarily meets existing regulatory requirements of local
and state agencies.
Forest Management Activities in Washington
Comment 273: Many commenters wanted to know how the April 29, 1999,
Forest and Fish Report (FFR) process under section 4(d) of the ESA
compares with the process for issuing an incidental take permit issued
under section 10. Some of these commenters misunderstood the intent of
the FFR and others mistakenly believed that the proposed limit could
result in issuing an incidental permit, or could be in effect for 50
years.
Response: While an ESA section 10 HCP may be developed by a non-
Federal entity using many of the elements of the FFR, that process has
not yet progressed to the point that NMFS has become involved. In other
words, it would be many months before anyone applies for an HCP based
on the FFR. At this time, NMFS is simply describing the 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. And, unlike an HCP with ``No Surprises'' assurances, under the
4(d) limit NMFS may require FFR to be adjusted in the future. 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.
Comment 274: Some commenters wanted to know what role NMFS played
in developing the FFR. Some commenters believed that NMFS had already
approved the Washington State Forest Practice Emergency Rules without
following the National Environmental Policy Act (NEPA), and other
commenters wanted to know how NMFS interacted with other resource
agencies.
Response: Along with other natural resource agencies at the state,
tribal, and Federal levels, NMFS participated in multi-party
negotiations with representatives of the commercial forest managers in
Washington State from about April of 1997 through April of 1999. NMFS
staff provided technical assistance to several of the work groups
tasked with providing the scientific underpinnings for various elements
of the FFR. Also, NMFS staff helped explain ESA procedures and
implications to the entire negotiating group.
While NMFS considers the product of those negotiations--the FFR--to
form the core of the ESA 4(d) limit for forestry on non-Federal lands
in Washington State, the report will continue to be worked on for at
least another year as various sections are refined and completed. Since
the FFR was initially published in April of 1999, NMFS staff have made
technical and policy contributions to many sections of the report.
These include, but are not limited to, FFR ``Schedules'' (essentially,
technical appendices) for Channel Migration Zones, Road Management,
Placement of Large Woody Debris, Conversion of Hardwood Riparian Zones,
Adaptive Management, and Resource Objectives. Some of these products
are formalized as Washington Forest Practice Board (WFPB) Manuals
associated with the Emergency Forest Practice Rules (that became
effective March 20, 2000) and have been evaluated by the Department of
Natural Resources (DNR) in their State Environmental Policy Act Draft
Environmental Impact Statement (SEPA DEIS). This document may be found
on the web at www.wa.gov/dnr/htdocs/fp/fpb/pdfiles/>.
Comment 275: Many commenters stated that the FFR was severely
flawed. As evidence, they pointed to a critique organized by the
Society for Ecological Restoration.
Response: Four individual scientists participated in a review of
the FFR that the Society for Ecological Restoration (SER) organized.
The American Fisheries Society (AFS) was solicited to review SER's
material, but contrary to purported statements on behalf of SER, AFS
did not review or endorse any of the reviewers' work products. The AFS
repeatedly asked the SER to retract and correct this inappropriate
attribution. NMFS believes that, while there are useful parts of the
report, the Society's critique of the FFR was flawed by: (1) a limited
understanding of the policies, regulations and intent of the ESA (2) an
incomplete understanding of all the elements of FFR, which led to (3)
overstatements of the perceived weaknesses in the FFR.
Specifically, the report claimed the FFR could result in: too-warm
waters flowing from some non-fish bearing streams into fish-bearing
waters; a failure to identify some small fish-bearing streams;
inadequate assessment of some potentially unstable slopes; potential
increases in peak-flows that could generally harm incubating fish eggs;
a potential reduction in future recruitment of woody material from some
non-fish-bearing streams into fish-bearing streams; excessive
disturbance and potential delivery of sediments from some non-fish-
bearing streams into fish-bearing streams; and, inadequate
identification of impaired watershed conditions that may need extra
protection. NMFS has assessed all these concerns in light of the best
available scientific and commercial information and generally agrees
with the environmental analysis summarized in the SEPA DEIS. The
moderate environmental risks and levels of uncertainty associated with
the FFR are directly addressed by the adaptive management program and
the adjustable nature of the ESA 4(d) limit.
Comment 276: Several commenters wanted pesticide application
covered in the FFR 4(d) limitation while another commenter did not.
Response: The FFR proposes certain guidelines for pesticide
applications
[[Page 42465]]
which can be found at: www.wa.gov/dnr/htdocs/fp/fpb/forests&fish.html#APPE. Due to the lack of information on specific
pesticides proposed for use under the FFR and their potential for
lethal and sub-lethal effects on fish or, as one commenter put it, an
uncertainty that needs to be addressed, the limitation associated with
the FFR does not include pesticide application.
Comment 277: Many commenters questioned how NMFS could ensure that
the riparian conditions essential to listed fish survival and recovery
would continue to function properly. Other commenters asked for a clear
description of Desired Future Condition for riparian forests. Some
commenters asked that NMFS prepare forest management standards for
watersheds.
Response: The riparian conservation elements in the FFR are
expected to play a major role in conserving salmonids and creating
properly functioning conditions on non-Federal forest lands in
Washington State. The FFR offers detailed, protective management
strategies for three different forest land ecotypes in Washington as
well as for fish- and non-fish-bearing streams throughout the state.
NMFS has carefully examined these protections and management strategies
and has determined that they sufficiently conserve the listed salmonids
and will promote properly functioning habitat condition wherever they
are applied. The best place to examine these management measures is in
the FFR itself.
Comment 278: Many commenters expressed the need to improve forest
road management and desired to know how the question was addressed in
the FFR.
Response: Forest roads have the potential to affect aquatic
ecosystems primarily by: generating and delivering fine sediments from
road surfaces and ditches; delivering catastrophic sediment inputs as a
result of road-related slope failures; blocking fish passage;
disrupting the downstream routing of sediments and organic materials;
reducing floodplain function; and modifying hydrologic patterns (e.g.,
the timing and intensity of peak flows). The FFR addresses all of these
effects through a revised set of BMPs that govern road construction and
maintenance. The BMPs require road maintenance and abandonment plans,
set a functional resource objective for hydrology that virtually
disconnects road drainage from stream systems, and describe a
functional resource objective for road-related fine sediment that
limits the length of ditch line that can deliver sediment to streams.
Moreover, the FFR addresses existing road problems by requiring every
forest landowner to produce a Washington State DNR-approved Road
Maintenance and Abandonment Plan by 2005.
Comment 279: Many commenters did not believe that FFR or the
Emergency Rules offered enough protection with regard to unstable
slopes to meet the intent of the proposed limit.
Response: The goal for managing unstable slopes is to avoid
increasing or accelerating the naturally occurring landslide rate (and
volume) in forested watersheds, while still recognizing that mass-
wasting is an essential watershed process element that helps route
large woody debris through the stream system. The FFR provides general
guidance about slope hazard by identifying four primary groups of land
forms generally understood to be at risk for failure and potential
sediment delivery: (1) Inner gorges, convergent headwalls, and bedrock
hollows steeper than 70 percent; (2) toes of deep-seated landslides
with slopes steeper than 65 percent; (3) groundwater recharge areas for
deep-seated landslides in glacially formed terrain; and (4) the outer
bends of meandering channels. The FFR lays out a detailed process for
scrutinizing any proposed forest management activities in such areas
and commits to support a team of geologists that will map any other
potentially unstable areas in the state. NMFS has carefully considered
these and the other basic protections set forth in the FFR and believes
that the overall approach fits with the limit. Moreover, the risk from
unstable slopes is expected to decrease as the adaptive management
process moves forward and more and better tools are brought to bear on
the problem of avoiding sediment inputs.
Comment 280: Some commenters stated that the FFR used a faulty
system of stream-typing. They were concerned that an out dated system
would continue to be used and, as a result, some fish-bearing streams
might not be identified for protection.
Response: The FFR classifies streams and dictates levels of
riparian and other protections based on the potential for a given
channel to support fishes of any species at any time of the year.
Seasonal fish-bearing streams are protected as if they were perennial.
This habitat-based stream typing will replace the current emergency
rule as GIS-based stream habitat models are developed (they are
expected to be complete by June of 2001). For now, the older stream
typing system--based on fish presence--will continue to be used; though
it will also be upgraded through the WFPB Emergency Rule (March 20,
2000). Both of these stream-typing systems are based on judgements of
the geographic threshold of perennial flow. These are considered to be:
a sub-watershed of 13 acres in western coastal Washington, 52 acres in
all other regions of Western Washington, and 300 acres in eastern
Washington.
Comment 281: How does the FFR address potential changes in
watershed hydrology resulting from forest practices? Some commenters
thought NMFS should add provisions that would help maintain natural
hydrology by limiting clear cut areas. Others urged NMFS to set
standards for tree regrowth to aid watershed recovery after logging.
Response: The FFR proposed that forested watersheds be managed to
meet a functional Resource Objective (Schedule L-1, in the FFR) that
limits increases in peak flows and other consequences of altered
hydrology. This Hydrology Resource Objective is still undergoing
development. When complete, it will provide both a quantitative
approach (based on changes in peak flow intensity or duration) and an
objective based on the actual streambed effects arising from altered
hydrology to choose from--depending on which is appropriate to the area
in question. In both cases the emphasis will be on those watershed
portions susceptible to rain-on-snow events, which are widely
considered to have the greatest potential to alter peak stream flows
and cause scour.
The BMPs for roads are also closely related to this issue (see
earlier discussion for road-related hydraulic and sediment effects). In
addition, the parties to the FFR committed to revising the Hydrology
Module in the Washington Forest Practice Board's (FPB's) Watershed
Analysis Methodology in order to more accurately assess hydrologic
effects. Finally, the DNR also maintains authority to place conditions
on any proposed Forest Practice if there is cause to believe that
altered hydrologic conditions are of concern. Therefore, NMFS does not
believe it necessary at this time to proposed additional conservation
measures relating to watershed hydrology.
Comment 282: Many commenters wanted to know how NMFS would monitor
activities under the FFR and use that data to determine whether rule
adjustments were necessary.
Response: The FFR proposes an elaborate process for designing and
implementing a monitoring and research program that will be used to
adapt forestry activities through changes in the Washington Forest
Practice Rules.
[[Page 42466]]
The adaptive management process is presented in Appendix L of the FFR.
Essentially, the protocols and procedures for conducting adaptive
management research and monitoring must be approved by Washington's
FPB. An administrator employed by Washington DNR will oversee the
program and assist the FPB in its task.
Comment 283: Many commenters stated that the FFR was too cumbersome
for the Washington DNR to be able to implement.
Response: The Washington Forest Practices Board described their
version of FFR, as Alternative 2, in the space of about 18 pages in the
SEPA DEIS. The agency responsible for ensuring compliance with state
Forest Practices--the Washington DNR--was a full participant in the
negotiating process that led to FFR development. Part of their role was
to codify and implement the proposed conservation measures. The first
step of that codification was completed in February, 2000, when the FFR
was substantially instituted as ``emergency rules'' for state forest
practices. All necessary Washington DNR staff have undergone extensive
training to implement the Emergency Rules.
Comment 284: Several commenters were concerned about the level of
protection provided to wetlands, specifically forested wetlands. Other
wetland concerns revolved around potential impacts on hydrology and
water temperature as a result of effects on groundwater in up-slope
areas. Also, some commenters indicated that the CMZ definition was too
narrow and would not provide adequate protection.
Response: NMFS agrees there is uncertainty associated with forest
management activities near wetlands in terms of how those activities
might impact fish habitat. NMFS generally agrees with the analysis
provided in the Washington State SEPA DEIS, section 3.5.2. That
document can provide commenters with further information about the
effects certain activities may have on wetland areas. In addition, the
rule outlines the process for adjusting itself--a process that may be
necessary as new information on the effects of specific forest
practices comes to light.
The March 2000, Board Manual for Emergency Rules, section 2,
explains the standard method for measuring CMZs and offers revised
Standard Methods guidance. In it, several different ways of determining
the CMZ are described, e.g., using historic aerial photographs,
intensive field exercises, and field review by a channel expert.
Comment 285: Several commenters wanted the limit to include
alternative plans that would give landowners managing areas less than
20 acres in size more operational flexibility. One commenter asked for
clarification and requested that the limit include alternative plans
that would help avoid any take liability.
Response: Within the construct of the FFR, alternate plans for
forest management are allowed provided that the effect of these
actions, as judged by the Washington DNR, conserves physical and
biological processes at least as well as the base prescriptions. The
purpose of this allowance was to address unique sites and operational
configurations that required some departure from standard approaches.
The alternative plan management strategy must protect public resources
at least as effectively as the basic rules. If approved, the
prescriptions set forth in an alternative plan would be substituted for
the prescriptions in the corresponding basic rules. NMFS includes in
this limit only those alternative plans in the FFR that have been
demonstrated to adequately protect listed salmon, and that provide
NMFS--or any resource agency or tribe NMFS designates--review
opportunity at every stage of development and implementation. Such
review may cause a plan to be excluded from this limit.
Comment 286: Many commenters asserted that NMFS had no scientific
basis to expect that the limit would contribute to salmon recovery.
Response: As the proposed rule states, ``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. 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.'' After carefully
evaluating the various components of the FFR--as described in the
proposed rule and discussed in pervious responses, NMFS has concluded
that applying the FFR will help maintain and attain properly
functioning habitat conditions and will, therefore, contribute to
recovery.
Comment 287: A number of commenters suggested that NMFS should
include the state forest practice rules from Oregon, California, and
Idaho in the limit.
Response: At the time the limit was proposed for the FFR in
Washington state, NMFS had not been presented with any other forest
practices regulatory framework that was designed to conserve listed
anadromous fish. For several years, NMFS has been discussing with state
agencies in Oregon and California ways to strengthen the fish
conservation aspect of forest practice rules in those states. NMFS
wishes to continue working with all affected governmental entities in
strengthening, identifying, and creating management programs that
fulfill the listed salmonids' biological requirements. For 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.
General
Comment 288: A broad array of interests asserted that their
activities were, at most, only minimally harmful to salmonids and that
natural environmental fluctuations and activities being conducted by
others were responsible for the recent drastic declines in salmonid
numbers throughout the Northwest and California. Among the activities
and causes listed as most harmful were logging, grazing and other
agricultural practices, pesticide use, various habitat-altering
actions, urban development, sport fishing, commercial fishing, drift
net fishing, tribal fishing, recreational fishing, ocean and estuarine
conditions, hydropower development, marine mammals, avian predators,
other predators, and so forth.
Response: Comments of this nature have been made in response to
essentially every listing and critical habitat proposal NMFS has put
forth over the last decade. As a result there is a great deal of
information on these factors available in any one of a number of
Federal Register documents and it need not be repeated in detail here.
Nonetheless, it should be pointed out that the very number of
commenters and the range of the causes cited are themselves indicative
of the breadth and depth of the problems facing Pacific salmonids.
Therefore, NMFS acknowledges that all of these factors have played a
role in the species' recent declines; as evidence, most of the factors
that commenters identified were
[[Page 42467]]
specifically cited as risk agents in the West Coast Chinook Salmon
Status Review (Myers et al., 1998).
The two primary themes that repeatedly arise in these comments
revolve around whether the massive declines in salmonid abundance are
brought on by natural conditions or human alteration of the
environment. NMFS recognizes that natural environmental fluctuations
and increasing numbers of natural predators have recently had negative
impacts on the species. However, NMFS believes human-induced impacts
(e.g., harvest and widespread habitat modification) have played at
least an equally significant role in the salmonid declines up and down
the West Coast. And because the very nature of this rule-making--the
codification of take prohibitions and the limits placed on them--cannot
apply to natural processes (by definition, the ocean cannot not
``take'' species), the rules necessarily address human activities.
Comment 289: Many commenters stated that the language of the rules
needed to be more clear in a number of respects, particularly with
regard to the terms found in the take guidance sections. Others felt
there was too much detail in the rules and that NMFS should simply
stick to principles and not offer too much in the way of specific
guidance.
Response: In publishing the proposed rules, NMFS tried to strike a
balance between these opposing views. The point was to avoid making the
rules overly prescriptive--and thus allow local initiative to play a
strong role--yet still give valuable guidance on how to proceed with
numerous human activities in the areas inhabited by threatened
salmonids. To continue in this spirit, NMFS has gone to some lengths to
clarify the guidance language and it may be found in this final rule.
Comment 290: Several commenters requested clarification on NMFS'
use of the term ``stock,'' the definition of population segments, and
the implications of these concepts for species conservation.
Response: The use of the term ``stock,'' following Ricker's
definition, is critical because it defines the appropriate management
units for conserving the species. According to Ricker, stocks are made
up of numerous populations which become uniquely adapted to specific
environmental conditions, leading to local variations in morphology,
behavior, and life history traits. As amended in 1978, the ESA allows
the listing of ``distinct population segments'' where groups of
populations are assembled for conservation management purposes. NMFS'
policy states that a salmon population is considered ``distinct'' for
purposes of the ESA if it represents an ESU of the biological species,
where an ESU represents an important component of the evolutionary
legacy of the species. Thus the health of an ESU depends upon the
health of its component parts. This argues for developing protective
regulations across an ESU's entire range, even though some local
populations may be thriving. The ESA 4(d) protective approach offers
the flexibility to develop local protection programs which are
cognizant of the species condition in the area.
Comment 291: A large number of commenters voiced general and
specific support for and opposition to various rules.
Response: The proposed ESA 4(d) rules generated an amount of
substantive public comment unprecedented since NMFS first began rule-
making activities for salmonids on the West Coast 10 years ago. Many
thousands of individual comments contained within the letters from well
over one thousand respondents reflected the broadest possible spectrum
of feeling--from full support to total opposition to the proposed
rules. Though the very nature of the questions surrounding salmonid
management in the Northwest and California precludes any possibility of
pleasing everyone, NMFS has striven to use this public comment period--
as well as every other input avenue at our disposal--to adapt the rules
in a manner that more fully reflects the basic objectives to encourage
state and local conservation efforts and to clear up the substantial
confusions associated with certain elements of the earlier proposed
rule.
Comment 292: Several commenters stated that NMFS should consult
with tribal governments regarding actions by non-tribal entities,
particularly those actions and limits contained in the salmon and
steelhead ESA 4(d) rules.
Response: Throughout the development of the tribal and salmon/
steelhead 4(d) rules NMFS has made a concerted effort to notify and
confer with tribal representatives and technical staff throughout the
Pacific Northwest and California. Contact regarding these rules goes
back to before December of 1998, when draft rules were submitted for
review by the affected tribes well in advance of the proposed rules.
During that review, NMFS coordinated and attended a number of meetings
and working sessions with tribal governments and representatives
(including staff from inter-tribal fisheries commissions) to discuss
particular aspects of the ESA 4(d) rules. These meetings allowed NMFS
to develop proposed ESA 4(d) rules that the agency believes address a
wide range of issues highlighted by the tribes. Similar efforts were
made to discuss the proposed 4(d) rules with key staff and tribal
council members after the rules were published.
Clearly, NMFS recognizes the need to work closely with the tribes
of the region to develop and improve upon information exchange and
consultation opportunities relating to salmon and steelhead
conservation. Since beginning work on these 4(d) rules NMFS has added a
tribal liaison position to its staff to focus on improving
communications with the tribes and developing consultation procedures
that will meet both NMFS and tribal needs. It is the agency's intent to
continue working with tribal governments to develop regularly scheduled
meetings between NMFS and tribal technical staff and policy makers to
both provide more timely notice regarding NMFS activities and discuss
how consultation might occur for future fisheries issues and ESA
rulemaking. There remains the opportunity for the tribes and the agency
to hold future discussions on applying the ESA 4(d) rules. Such future
discussions can include identifying cultural and economic issues
requiring the agency's attention and ideas about how such analyses
should be conducted. In response to tribal requests, NMFS will
correspond with each commenting tribal government, clarify how its
comments were addressed, and identify the need for additional meetings
to discuss potential rule amendments and modifications.
Comment 293: Many people stated that any activities conducted in
accordance with the Oregon Plan for Salmon and Watersheds should
receive a specific limitation on the take prohibitions.
Response: NMFS has carefully reviewed the various versions of the
Oregon Plan since its genesis over 4 years ago and remains a strong
supporter of it as a hugely ambitious and comprehensive effort. While
many portions of the Plan may sufficiently protect the salmon resource
as they now stand, other components need further work and refinements,
as is widely understood and altogether understandable. Therefore,
because certain parts of the Plan do not offer the salmon enough
protection, NMFS cannot adopt it wholesale as a limitation on the take
prohibitions.
Comment 294: Several commenters requested that NMFS clarify how it
will
[[Page 42468]]
add new limits and adjust programs that are already within a limit.
Response: NMFS will continue to work with local jurisdictions and
other entities to develop and adopt new ESA 4(d) rule limits. In
general, local entities will develop a proposed limit based on the
guidance set forth in the rule and will bring it to NMFS for technical
assistance and to undergo a negotiation and approval process. The
approach is a flexible one and there are different time frames and
administrative procedures for each limit--depending on the type being
proposed (see the regulatory text of this final rule). Existing limits
will be reviewed and evaluated according to the schedule established at
the time the limit is finalized.
Comment 295: One commenter requested that NMFS identify in the
final rules the ``replicable'' elements of any of the agency-specific
programs.
Response: There are two types of limits available through the ESA
4(d) rule: (1) Stand alone programs, and (2) a set of criteria that
will form the basis for future programs that NMFS will evaluate for
further limits on the take prohibition. The first category of limits is
made up of programs that can be adopted or adapted as ``replicable''
elements for other jurisdictions or entities. The criteria in the
latter type of limit also serve as replicable elements that other
programs can adapt to meet.
Comment 296: A number of respondents expressed a general concern
that the ESA 4(d) rules were too coercive. They stated that the rules
would engender third-party lawsuits or simply fragment and undermine
local efforts rather than bolster them. A recurring theme was that NMFS
should be more flexible in its approach than the rules would seem to
indicate.
Response: One of the primary reasons NMFS has taken this ground-
breaking approach in publishing ESA 4(d) rules is to allow for a
maximum of local input and Federal flexibility. Rather than simply
impose blanket take prohibitions of the sort normally promulgated under
a final rule listing a species, NMFS has attempted to create a
regulatory environment within which local initiatives and programs have
sufficient leeway to remain focused on their own goals while
simultaneously working toward the ultimate end of preserving salmonid
stocks--both now and in the future. No agency can alter the simple fact
that certain activities that harm listed salmonids must be regulated.
Nonetheless, as the rules themselves demonstrate, NMFS is committed to
an approach that focuses more on aiding local efforts that conserve
listed salmon and steelhead.
Comment 297: Some commenters stated that local entities should have
little or no authority to carry out the measures because local
initiatives have a very poor track record with respect to protecting
salmonids.
Response: The task of protecting salmonids in the Pacific Northwest
and California is perhaps the most complicated and far-reaching attempt
to restore a species ever undertaken. In practical terms, the Federal
government alone, using only Federal authorities and dollars, cannot
hope to accomplish this ambitious task of salmon recovery without the
additional active efforts of state and local authorities and the
private sector. A wide mosaic of activities affect salmon habitat.
Those activities fall under the responsibility of a range of Federal,
state and local authorities. The practical ability to make changes in
those activities will depend in part upon the willingness and ability
of those separate authorities to encourage change. Therefore, NMFS is
attempting, to the greatest extent practicable, to build opportunities
for state and local initiatives in the implementation of the ESA
program. This strategy has already proven successful in a few areas
where watershed councils and other local bodies have made great strides
in salmon conservation through habitat rehabilitation, community
awareness seminars, and other projects. NMFS anticipates and welcomes
further expansions of these efforts over time.
Comment 298: Many commenters stated that individual landowners
should receive assurances in the rules that if they cooperated and
followed the measures outlined, they would be free from any further
restrictions under the ESA.
Response: As a matter of law, listed species may not be taken
without legal authorization. Therefore, it is incumbent upon every
individual and organization to be vigilant in terms of minimizing the
impacts their activities have on listed salmonids. The 4(d) rules
establish take prohibitions; that is their purpose. Secondarily they
are an attempt to allow landowners and every other interested party a
path by which they can have some assurance that their activities are in
concert with the letter and intent of the ESA. It should be noted that
no one will be forced to seek a 4(d) limitation, and no one need
necessarily follow the limitations laid out in the rule. They are
optional, flexible methods for ensuring that individual entities adhere
to the mandated take prohibitions. The other routes for complying with
the ESA are still open; for example, landowners may still seek ESA
section 10 incidental take permits through the process of developing
habitat conservation plans--a process that offers them a good deal of
assurance that their activities will continue to be in compliance with
the ESA. Any program or activity that adheres to the criteria found in
the limits described in these rules will receive a similar sort of
assurance. Further, it is very likely that other programs will come
forth in the future that similarly protect the salmon and, as a
consequence, will receive their own limitations on the take
prohibitions. Nonetheless, it must be stressed that the primary purpose
of these rules is to fulfill the mandate of the ESA in issuing
regulations deemed necessary and advisable to provide for the
conservation of threatened species.
Comment 299: A number of commenters asserted that the original
listings were in error--most the reasons given fell into two
categories: either (a) the science was inaccurate, or (b) the concept
of listing ESUs is faulty.
Response: Section 4(b)(1)(A) of the ESA requires that NMFS make its
listing determinations solely on the basis of the best available
scientific and commercial data after reviewing the status of the
species and taking into account any efforts being made to protect such
species. NMFS believes that information contained in the agency's
status review (Myers et al., 1998), together with information cited in
the final rule (NMFS, 1998a), represent the best scientific information
presently available for the ESUs addressed in this final rule. NMFS
made every effort to conduct an exhaustive review of all available
information and solicited information and opinion from all interested
parties in making the listing decisions. If in the future new data
become available to change these conclusions, NMFS will act
accordingly.
As to the validity of listing ESUs in the first place, general
issues relating to ESUs and the ESA have been discussed extensively in
past Federal Register documents--most recently in the final rule
listing 4 ESUs of chinook salmon (64 FR 14308, September 9, 1999) and
they need not be reiterated at length here. Nonetheless, the utility of
the ESU concept is laid out in a 1991 document in which NMFS describes
how it will apply the ESA definition of ``species'' to Pacific salmon
(56 FR 58612, November 20, 1991). Guidance on applying this policy is
contained in a NOAA Technical Memorandum entitled ``Definition of
`Species' Under the Endangered Species Act: Application to Pacific
Salmon'' (Waples, 1991) and in
[[Page 42469]]
a recent scientific paper by Waples (1995). It should also be pointed
out that the National Research Council generally endorses the concept
(NRC, 1995).
Comment 300: Several commenters were concerned about the scientific
standards used to justify the inclusion of the 13 limits and to judge
future limits, and suggested the generation of uniform standards.
Response: NMFS evaluated the current limits based on best available
science and the concepts of VSP and PFC, and will evaluate any future
limit using the same and other, more site specific guidelines.
Recognizing the variable nature of the geologic, hydrologic and aquatic
ecosystems across all ESUs, and the consequent variability in
strategies for salmon recovery, NMFS proposes an approach that allows
local innovation through the development of local and regional programs
that are protective of salmon and steelhead. These programs are
monitored and evaluated for their effectiveness in meeting the
conservation goal of the survival and recovery of the species. While
NMFS offers general guidelines, the 13 limitations and new programs
offer additional specificity and strategies for meeting the
conservation goal.
Comment 301: Some commenters expressed the opinion that the rules
are too costly and will involve too much red tape.
Response: Saving a species is neither an easy task nor a cheap one.
Nonetheless, NMFS is committed to finding the most efficient and cost-
effective way of preserving salmon and steelhead on the West Coast. To
assist us in this, we have prepared initial regulatory flexibility
analyses of the effects the rules are likely to have on small
businesses, non-profit organizations, local governments, and other
small entities. The purpose of these analyses is to help the agency
consider all reasonable regulatory alternatives that would minimize the
rules' economic impacts on affected small entities. It is thus our
intent to make full use of these analyses and keep economic impacts to
a minimum.
In addition, because this is a new approach to promulgating 4(d)
rules under the ESA, we are aware that the process may impose some
unforseen burdens in terms of time investment and paperwork for all
involved parties--including NMFS. To counter this, we will use the
principles of adaptive management to streamline the process wherever
and whenever possible.
Comment 302: A number of people stated that more time was needed
for completing and commenting on the rules.
Response: NMFS has been working with individual programs, tribes,
and local governments all over the Northwest for well over 2 years to
complete the 4(d) rule proposals. Twenty-five public meetings were held
in order to get input. The statutory time line for commenting on the
rules was doubled so that every interested person in the region would
have a reasonable amount of time in which to formulate and submit their
comments.
It is important to note, however, that one of the main premises of
promulgating these rules is to build a maximally adaptive process for
managing salmon on the West Coast. Therefore, it is expected that these
rules will continue to change in response to incoming monitoring data,
further public input, other proposed limitations on the take
prohibitions, and the developing recovery plans for the listed species.
Comment 303: One commenter requested that the reference to a public
comment period of 30 days for various plans and programs be included in
every section of the rule in order to provide consistency in process
between limits.
Response: All programs that are accepted as ESA 4(d) limits will be
published in the Federal Register and the usual comment period is 30
days. NMFS makes clear in the regulatory text of this final rule where
and when the 30-day comment period applies.
Comment 304: Many commenters agreed with various portions of the
rules, but stated that it is imperative that they be enforced and that
monitoring and oversight need to be accounted for in every limit.
Further, monitoring must be built into the system in a way that allows
the limits to be altered when evolving science shows it necessary.
Response: Change in response to new data is the very heart of the
adaptive management process. NMFS is committed to continually bringing
the best and latest information to bear on the question of how to best
preserve declining salmon stocks--monitoring is a critical path for
developing that information. Most of the programs given limitations in
the 4(d) rules feature monitoring as an integral part. The language in
the final rules has been changed slightly to further stress the
importance of monitoring and to make clear that it will be used to
alter the programs where necessary.
Comment 305: Some commenters suggested that the results from
monitoring data for programs implemented under different limits should
be available for public comment. Another commenter urged that the
process for reviewing the effectiveness of the fish protection measures
include tribal managers, independent scientists, and the public.
Response: The results of monitoring data from programs within ESA
4(d) limits will be available for public review at the appropriate NMFS
office. At this time, however, NMFS does not have a mechanism to seek
formal public comment on the data. NMFS will continue to seek
monitoring data, input, and other relevant information from co-managers
and others as the programs are reviewed, evaluated, and adjusted.
Comment 306: Some commenters wanted to know why NMFS believes it is
necessary to have such a detailed review and reporting process for the
limits when FWS does not require anything like it for wildlife.
Response: As stated previously, this is a ground-breaking approach
to managing threatened species. Its intent is to allow a maximum of
local input while simultaneously offering the largest possible degree
of protection for the species. It has never been tried before and, as a
result, it is imperative that we keep a very close eye on its progress.
Aside from the need for monitoring to allow the process to adapt, these
rules will eventually become part of the larger recovery planning
process. By closely examining the success of the proposed measures, we
can get a much better idea of what it will take to fulfill the ultimate
portion of our mandate: to recover the species.
Comment 307: One commenter recommended that NMFS work with FWS to
make sure that Federal activities receive take prohibition limits under
our ESA 4(d) rules similar to the ones being proposed for Bull trout.
In addition, another commenter urged close coordination with FWS to
prevent different interpretations of take and different limits being
offered.
Response: NMFS always seeks to cooperate with FWS, and procedures
have been established for joint consultation on ESA rulemaking and for
reviewing Federal programs through section 7 of the ESA. NMFS
anticipates that this cooperation will be strengthened as the 4(d) rule
is implemented. NMFS will further work with FWS to ensure that the
existing bull trout take prohibitions might be modified to reflect
appropriate state or local efforts in parallel to this final rule.
Comment 308: Some tribal commenters were concerned that the 4(d)
rules could serve as a ``back door'' to unfairly allocate the
conservation burden on tribal governments. The
[[Page 42470]]
concern is that if the program is not scientifically rigorous enough,
the Agency would be forced to turn to the tribes for additional
conservation burden (i.e., limit fishing or development activities).
Response: NMFS intends to review all new proposed limitations
rigorously for their contribution to the conservation of the species
using existing criteria and additional site-specific tools. In
addition, before any program is accepted, it will be published in the
Federal Register for public review and comment. NMFS expects this
process to be rigorous and open enough to permit the development of
effective protective regulations and programs.
Comment 309: Some commenters stated that NMFS should delineate
specific population parameters for several named populations (e.g., the
Yuba River) so it can be determined if they may be excepted from having
any take prohibitions placed on them. Some commenters wanted the rules
to be eased when a viable population size is reached in order to give
landowners an incentive to continue using protective measures.
Response: The limits on take prohibitions are given for specific
activities, not for populations. If an activity helps conserve
salmonids or if it adequately limits impacts on salmonids, it may
receive a limitation on the take prohibitions. In the spirit of
adaptive management, there may well come a point in the future where a
population (and its ESU) has rebounded to the point where it is healthy
enough, viable enough, that alternative management actions would be
allowable. Of necessity, this would first take place in a highly
controlled experimental environment that would allow researchers to
determine the impacts of any new management scheme. Until that time,
however, it is necessary to protect the salmonids while we get a better
measure of population viability and place it firmly in the context of
managing West Coast salmon. NMFS scientists are working diligently to
accomplish that goal and will continue to use their results to adapt
the agency's ongoing salmon management programs.
Comment 310: Some commenters stated that the overall regulatory
scheme was too fragmented. They stated the need for a clear pathway for
local and state governments to synthesize their programs with the ESA
4(d) approach. They also stated there should be a better recognition of
the limitations local governments face in terms of staffing, funding,
and ability to monitor.
Response: One of this final rule's purposes is to develop a process
that is flexible, adaptable, and receptive to greater participation
from local entities. In order to accomplish this, the regulatory scheme
must remain somewhat open as well. Nonetheless, though NMFS desires to
remain open to new approaches, we have also included a good deal of
guidance as to what we believe any program should contain in terms of
protective measures for salmon. Also, we will continue to do what we
can to assist local entities, watershed councils, and others with
instruction, technical assistance, and, whenever possible, funding.
Comment 311: Some commenters asserted that NMFS cannot anticipate
how many states or local governments will be affected by the rule or
how many entities or jurisdictions will apply for coverage under the
new ESA 4(d) limits. Others commented that NMFS will be inundated and
overwhelmed with requests for programs to come under a 4(d) limit and
suggested simplified procedures streamlining the review and approval of
future potential take limitations.
Response: NMFS is anticipating strong interest from state and local
governments in the ESA 4(d) limits. We are encouraging jurisdictions to
work together in developing plans that cover wide geographic scales and
multiple activities--thus reducing the number of individual programs
that need to be reviewed. Also, we anticipated that promulgating these
rules would increase workloads and, as a result, we are evaluating our
resource needs and are fully committed to meeting future program
demands.
Comment 312: Several commenters suggested that NMFS provides no
scientific basis to categorically apply the take prohibition to an
entire category of activities such as agriculture, and that the agency
provides no technical guidance on take avoidance.
Response: The take prohibitions do not apply to categories of
activities, but to any activities that take listed species. The section
on ``Take Guidance'' provides further information on those activities
that have a high risk of take. NMFS stands ready to work with
interested parties to provide further guidance, including guidance that
could ultimately be included as a 4(d) limitation.
Comment 313: Several commenters were confused by multiple Federal
Register documents and didn't realize that there were several separate
ESA 4(d) rules.
Response: For the final rules, we have combined the chinook and the
steelhead rules to help reduce some of the confusion. We hope this,
along with several changes in the rule' language will make things a bit
more clear.
Changes to the Proposed ESA 4(d) Rules
The proposed rules included a lengthy preamble where NMFS provided
technical guidance, description of the scientific principles upon which
the limits on the take prohibition were based, and a description of the
background and content of the 13 limits. The proposed regulatory
language was included in sections 223.203 and 223.208. Modifications to
the proposed preamble sections based on written comments will be
reflected in ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 2000), while
the actual changes to the regulatory language are described as follows.
An important change to highlight is that the final 4(d) rules for
the different ESUs have different effective dates. In the final
steelhead and salmon 4(d) rule the effective date for the steelhead
ESUs (Sec. 223.102(a)(5) through (a)(9) and (a)(14) and (a)(15)) is
September 8, 2000. The effective date for the salmon ESUs
(Sec. 223.102(a)(10), (a)(12), (a)(13) and (a)(16) through (a)(19)) is
January 8, 2001. NMFS recognizes that the final 4(d) rules are complex
and that even the proposed rules created a certain amount of confusion
among those who commented on them. The court-ordered settlement date
requires NMFS to adopt protective regulations for the steelhead ESUs by
June 19, 2000. NMFS, however, is not under a similar court-mandated
time line for the salmon ESUs. Therefore, because of the rule's length
and complexity, the diverse range of human activities that will
potentially be affected, and the continued need to educate all sectors
of the public, the effective date for the salmon ESUs will be six
months after publication of this Federal Register document. This 6-
month period will allow NMFS to educate and work with all
jurisdictions, entities, and individuals affected by the rule. It will
also provide additional time for them to review their activities and
programs and adjust them (if needed) to avoid taking threatened
species.
The general format of the proposed regulations included the
prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538) relating to
endangered species being applied to the 14 listed threatened salmonid
ESUs, except as provided in the 13 limits on application of the section
9(a)(1)(B) and 9(a)(1)(C) take prohibitions that are included in the
regulation. The proposed rules listed the following 13 limit
categories: (1) Activities conducted in accord with
[[Page 42471]]
ESA incidental take authorization; (2) ongoing scientific research
activities, for a period of 6 months from the publication of the final
rule; (3) emergency actions related to injured, stranded, or dead
salmonids; (4) fishery management activities; (5) hatchery and genetic
management programs; (6) activities in compliance with joint tribal/
state plans developed within U.S. v. Washington or U.S. 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) routine road
maintenance activities in Oregon; (11) certain park maintenance
activities in the City of Portland, Oregon; (12) certain municipal,
residential, commercial and industrial (MRCI) development and
redevelopment activities; and (13) forest management activities within
the state of Washington.
NMFS is modifying the final ESA 4(d) protective regulations for
these 14 ESUs based on comments and new information received on the
proposed rules. The following section summarizes how the regulatory
language for each limit and technical issues did or did not change. The
actual regulatory descriptions of each limit and technical information
can be found in the regulatory text at the end of this Federal Register
document.
Viable Salmonid Populations Paper
The proposed rules solicited public comments on the draft NMFS VSP
paper. The VSP paper is not a separate limit, but provides a technical
framework for the fishery management and hatchery management limits.
Based on public comments regarding the draft VSP paper, changes were
made in the regulatory language for the fishery and hatchery management
limits to clarify how the VSP data requirements will be addressed.
Additional compliance guidance is available in``A Citizen's Guide to
the 4(d) Rule'' (NMFS, 2000).
Properly Functioning Conditions
For the reasons identified in the Comment and Responses section,
language was added to the limits addressing habitat issues, i.e.,
habitat restoration, pest management and routine road maintenance, in
order to define properly functioning condition and how NMFS will
evaluate the limits with regard to meeting this biological standard.
Legal and Affirmative Defense
For the reasons identified in the Comment and Responses section,
regulation language was modified to: (1) add new language to make
explicit that it would be the defendant's obligation to plead and prove
application of and compliance with a limit as an affirmative defense;
(2) clarify the question about whether the rule should be non-
severable, by making it explicit that NMFS intends the provisions of
this rule to be severable.
Limit for Activities Conducted in Accord with ESA Incidental Take
Authorization
No changes were made to the regulations pertaining to this limit.
Additional compliance guidance is available from NMFS in ``A Citizen's
Guide to the 4(d) Rule'' (NMFS, 2000).
Limit for Ongoing Scientific Research Activities
No changes were made to the regulations pertaining to this limit.
Additional compliance guidance is available from NMFS in ``A Citizen's
Guide to the 4(d) Rule'' (NMFS, 2000).
Limit for Rescue and Salvage Actions
No changes were made to the regulations pertaining to this limit.
Additional compliance guidance is available from NMFS in ``A Citizen's
Guide to the 4(d) Rule'' (NMFS, 2000).
Limit for Fishery Management Activities
For the reasons identified in the comment and response section,
this limit was modified to: (1) change the use of a MOA between states
and NMFS to a letter of concurrence from NMFS; (2) clarify the use of
viable and critical salmonid population thresholds consistent with the
VSP paper; (3) clarify the timing of reports describing take of listed
salmonids; and (4) explain that the prohibitions on take of threatened
steelhead in recreational fisheries managed solely by the states of
Oregon, Washington, Idaho and California will go into effect January 8,
2001.
Limit for HGMPs
For the reasons identified in the comment and response section,
this limit was modified to change the use of a MOA between states and
NMFS to a letter of concurrence from NMFS.
Limit for Joint Tribal and State Plans
No changes were made to the regulations pertaining to this limit.
Additional compliance guidance is available from NMFS in ``A Citizen's
Guide to the 4(d) Rule'' (NMFS, 2000).
Limit for Scientific Research Activities Permitted or Conducted by
the States
NMFS has revised the limit to reflect commenter concerns about the
feasibility of adequate oversight by state fishery agencies. Additional
compliance guidance is available from NMFS in ``A Citizen's Guide to
the 4(d) Rule'' (NMFS, 2000).
Limit for Habitat Restoration
For the reasons identified in the Comment and Responses section,
this limit was modified to: (1) clarify that take prohibitions do not
apply to habitat restoration activities provided the activity is part
of a WCP that meets criteria listed in the regulation; (2) change the
time frame to complete a watershed conservation plan from 2 years to an
undetermined time, so that the limit is available whenever the criteria
described in the regulation are met; (3) delete the list of six
categories of habitat restoration activities that would not have the
ESA section 9 take prohibitions applied to them for 2 years; (4)
clarify and revise the criteria NMFS will use to evaluate a state's
watershed conservation plan guidelines; and (5) clarify that NMFS will
not approve individual WCPs; instead, NMFS will approve the WCP
guidelines with each state and periodically review the state watershed
planning programs for consistency with the guidelines. Additional
compliance guidance is available from NMFS in ``A Citizen's Guide to
the 4(d) Rule'' (NMFS, 2000).
Limit for Water Diversion Screening
For the reasons identified in the comment and response section,
this limit was modified to: (1) allow NMFS-authorized state agency
engineers (``authorized officers'') to review and recommend
certification of screen designs to NMFS rather than NMFS' engineers
solely having this responsibility; and (2) allow NMFS, on a case by
case basis, to grant this limit to water diversion projects where NMFS
has approved a design construction plan and schedule, including interim
operation measures to reduce the likelihood of take. NMFS may also
require a commitment of compensatory mitigation if implementation of a
plan and schedule is terminated prior to completion.
Limit for Routine Road Maintenance Activities
For the reasons identified in the comment and response section,
this limit was modified to: (1) allow this limit to be available to any
state, county, city, or port once they have demonstrated in writing
that their routine road maintenance activities are equivalent to those
in the ODOT Guide which adequately protect threatened salmonid species;
or by employees or
[[Page 42472]]
agents of a state, county, city or port that complies with a routine
road maintenance program that meets proper functioning habitat
conditions; (2) add language referring to state, city, county, and
ports; (3) change the time frame for ODOT or another jurisdiction to
respond to new information in the shortest amount of time feasible, but
not longer than one year; (4) clarify that prior to approving any
state, city, county, or port program as within this limit, or approving
any substantive change in a program within this limit, NMFS will
publish notification in the Federal Register; (5) clarify that any
jurisdiction should first commit in writing to apply the management
practices in the ODOT Guide, rather than the proposed language, which
first required the jurisdiction to enter into a memorandum of agreement
with NMFS; and (6) add new language regarding properly functioning
condition. Additional compliance guidance is available from NMFS in ``A
Citizen's Guide to the 4(d) Rule'' (NMFS, 2000).
Limit for Certain Integrated Pesticide Management Activities
For the reasons identified in the Comment and Responses section,
this limit was modified to: (1) add new language regarding properly
functioning conditions; and (2) clarify language regarding how NMFS
will address future program changes and provide public notice that the
limit is withdrawn. Additional compliance guidance is available from
NMFS in ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 2000).
Limit for Municipal, Residential, Commercial and Industrial (MRCI)
Development and Redevelopment Activities
For the reasons identified in the Comment and Responses section,
this limit was modified to: (1) clarify that this limit applies to MRCI
development and redevelopment undertaken by cities, counties, and
regional governmental entities; ( 2) expand and clarify the content of
the 12 evaluation considerations NMFS will use to review MRCI
development ordinances and plans; (3) add new language to emphasize the
properly functioning habitat conditions NMFS considers adequate to
conserve listed salmonids; (4) clarify that NMFS notes that not all 12
considerations described in the regulation will necessarily be relevant
to all ordinances and plans submitted for review and approval; and (5)
include language which clarifies the process NMFS will use to provide
notice of availability of ordinances and plans for public review, and
NMFS' process to amend or withdraw limits.
Limit for Forest Management Activities in the State of Washington
For the reasons identified in the Comment and Responses section,
this limit was modified to add new language stating that actions taken
under alternative plans are included in this limit provided that they
meet the requirements stated in the regulation and are submitted and
approved by the authorized Washington state agency.
Take Guidance
These threatened species are in danger of becoming extinct in the
foreseeable future. They have been depleted by over-fishing, past and
ongoing freshwater and estuarine habitat destruction, hydropower
development, hatchery practices, and other causes. It is, therefore,
necessary and advisable to put into place ESA section 9(a)(1)
prohibitions to aid in their conservation. Section 9(a)(1) prohibitions
make it illegal for any person subject to the United States'
jurisdiction to ``take'' these species without written authorization
(``take'' is defined to occur when a person engages in activities that
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect a species or attempt to do any of these). Impacts on a
protected species' habitat may harm members of that species and,
therefore, constitute a ``take'' under the ESA. Such an act may include
significant habitat modification or degradation that actually kills or
injures listed fish by significantly impairing essential behavioral
patterns including breeding, spawning, rearing, migrating, feeding, or
sheltering.
On July 1, 1994 (59 FR 34272), NMFS and FWS published a policy
committing both agencies to identify, to the extent possible, those
activities that would or would not violate section 9 of the ESA. The
intent of this policy is to increase public awareness about ESA
compliance and focus public attention on those actions needed to
protect species.
Based on available information, NMFS believes the categories of
activities listed here are those activities which as a general rule may
be most likely to result in injury or harm to listed salmonids. NMFS
wishes to emphasize at the outset that whether injury or harm is
resulting from a particular activity is entirely dependent upon the
facts and circumstances of each case. The mere fact that an activity
may fall within one of these categories does not at all mean that that
specific activity is causing harm or injury. These types of activities
are, however, those that may be most likely to cause harm and thus
violate this rule. NMFS' ESA enforcement will therefore focus on these
categories of activities.
Activities listed in A thru J below are as cited in NMFS' harm rule
64 FR 215 (November 8, 1999).
A. Constructing or maintaining barriers that eliminate or impede a
listed species' access to habitat or ability to migrate.
B. Discharging pollutants, such as oil, toxic chemicals,
radioactivity, carcinogens, mutagens, teratogens or organic nutrient-
laden water including sewage water into a listed species' habitat.
C. Removing, poisoning, or contaminating plants, fish, wildlife, or
other biota required by the listed species for feeding, sheltering, or
other essential behavioral patterns.
D. Removing or altering rocks, soil, gravel, vegetation or other
physical structures that are essential to the integrity and function of
a listed species' habitat.
E. Removing water or otherwise altering streamflow when it
significantly impairs spawning, migration, feeding or other essential
behavioral patterns.
F. Releasing non-indigenous or artificially propagated species into
a listed species' habitat or where they may access the habitat of
listed species.
G. Constructing or operating dams or water diversion structures
with inadequate fish screens or fish passage facilities in a listed
species' habitat.
H. Constructing, maintaining, or using inadequate bridges, roads,
or trails on stream banks or unstable hill slopes adjacent to or above
a listed species' habitat.
I. Conducting timber harvest, grazing, mining, earth-moving, or
other operations which result in substantially increased sediment input
into streams.
J. Conducting land-use activities in riparian areas and areas
susceptible to mass wasting and surface erosion, which may disturb soil
and increase sediment delivered to streams, such as logging, grazing,
farming, and road construction.
K. Illegal fishing. Harvest in violation of fishing regulations
will be a top enforcement concern.
L. Various streambed disturbances may trample eggs or trap adult
fish preparing to spawn. The disturbance could be mechanical disruption
caused by constructing push-up dams, removing gravel, mining, or other
work in a stream channel. It may also take the form of egg trampling or
smothering by livestock in the streambed or by vehicles or equipment
being driven
[[Page 42473]]
across or down the streambed (as well as any similar physical
disruptions).
M. Interstate and foreign commerce dealing in listed salmonids and
importing or exporting listed salmonids may harm the fish unless it can
be shown--through an ESA permit--that they were harvested in a manner
that complies with ESA requirements.
N. Altering lands or waters in a manner that promotes unusual
concentrations of predators.
O. Shoreline and riparian disturbances (whether in the riverine,
estuarine, marine, or floodplain environment) may retard or prevent the
development of certain habitat characteristics upon which the fish
depend (e.g., removing riparian trees reduces vital shade and cover,
floodplain gravel mining, development, and armoring shorelines reduces
the input of critical spawning substrates, and bulkhead construction
can eliminate shallow water rearing areas).
P. Filling or isolating side channels, ponds, and intermittent
waters (e.g., installing tide gates and impassable culverts) can
destroy habitats that the fish depend upon for refuge areas during high
flows.
The list provides examples of the types of activities that could
have a high risk of resulting in take but it is by no means exhaustive.
It is intended to help people avoid violating the ESA and to encourage
efforts to save the species. Determination of whether take has actually
occurred depends on the circumstances of a particular case.
Many activities that may kill or injure salmonids are regulated by
state and/or Federal processes, such as fill and removal authorities,
NPDES or other water quality permitting, pesticide use, and the like.
For those types of activities, NMFS would not intend to concentrate
enforcement efforts on those who operate in conformity with current
permits. Rather, if the regulatory program does not provide adequate
salmonid protection, NMFS intends to work with the responsible agency
to make necessary changes in the program.
For instance, concentrations of pesticides may affect salmonid
behavior and reproductive success. Current EPA label requirements were
developed in the absence of information about some of these subtle but
real impacts on aquatic species such as salmonids. Where new
information indicates that label requirements are not adequately
protective of salmonids, NMFS will work with EPA through the section 7
consultation process to develop more protective use restrictions, and
thereby provide the best possible guidance to all users. Similarly,
where water quality standards or state authorizations lead to pollution
loads that may cause take, NMFS intends to work with the state water
quality agencies and EPA to bring those standards or permitting
programs to a point that does protect salmonids.
Persons or entities who conclude that their activity is likely to
injure or kill protected fish are encouraged to immediately adjust that
activity to avoid take (or adequately limit any impacts on the species)
and seek NMFS' authorization for incidental take under (a) an ESA
section 10 incidental take permit; (b) an ESA section 7 consultation;
or (c) a limit on the take prohibitions provided in this rule. The
public is encouraged to contact NMFS (see FOR FURTHER INFORMATION
CONTACT) for assistance in determining whether circumstances at a
particular location (involving these activities or any others)
constitute a violation of this rule.
State and local efforts like the Oregon Plan for Salmon and
Watersheds, the State of Washington's Extinction is Not an Option Plan,
Metro's Functional Plan, the Puget Sound Tri-County Initiative and
Lower Columbia Fish Recovery Board in Washington state, the Eugene,
Oregon-area Metro ESA Coordinating Team, and the Willamette Restoration
Initiative (WRI) have stepped forward and assumed leadership roles in
saving these species. NMFS reiterates its support for these efforts and
encourages them to resolve critical uncertainties and further develop
their programs so they can take the place of blanket ESA take
prohibitions.
Impacts on listed salmonids resulting from 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 a species' survival, or to authorize
incidental take occurring in the course of an otherwise lawful
activity. NMFS consults on a broad range of activities conducted,
funded, or authorized by Federal agencies. These include fisheries
harvest, hatchery operations, silviculture activities, grazing, mining,
road construction, dam construction and operation, discharge of fill
material, and stream channelization and diversion. Federally-funded or
approved activities that affect listed salmonids and for which ESA
section 7 consultations have been completed and any take authorized,
will not constitute violations of this rule--provided the activities
are conducted in accord with all reasonable and prudent measures,
terms, and conditions stated in the consultation and incidental take
permit.
References
A list of references cited in this final rule is available upon
request (see ADDRESSES).
Classification
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) 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. NMFS prepared an
initial regulatory flexibility analysis (IRFA) which was made available
through the proposed rule. Several public comments were received
related to the IRFA or to economic impacts generally. Those comments
and NMFS responses to them are summarized in the Response to Comments
section. NMFS has prepared a Regulatory Impact Review (RIR) and a Final
Regulatory Flexibility Analysis (FRFA), taking into consideration the
public comments received. A summary of the final FRFA follows. The FRFA
is available upon request (see ADDRESSES), or may be accessed on NMFS
web site at www.nwr.noaa.gov.
This 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 will not impose the take prohibitions.
Hence, the universe of entities reasonably expected to be directly or
indirectly impacted by the prohibition is broad.
The geographic range of these regulations crosses four states and
the number of entities potentially affected by imposition of take
prohibitions is substantial. 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, tourism, real estate,
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
[[Page 42474]]
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, proximity to waterways, the degree to which the
operation is already protective of salmonids, and individual strategies
for dealing with the take prohibitions.
There are no recordkeeping or reporting requirements associated
with the take prohibition and, therefore, it is not possible to
simplify or tailor recordkeeping or reporting to be less burdensome for
small entities. Some limits, for which NMFS has found it not necessary
to prohibit take, involve recordkeeping 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. The final rule does not duplicate, overlap, or conflict with
any other relevant Federal rules.
In formulating this rule, NMFS considered several alternative
approaches, described in more detail in the FRFA. 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
limits on the take prohibition for harvest plans, hatchery plans,
scientific research, and habitat restoration projects, when in
conformance with specified criteria; (5) a protective 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; (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; and
(7) enacting no protective regulations for threatened steelhead. The
first four alternatives would place greater burdens on small entities.
Alternative 6 would not provide sufficient protections (see response to
comments), while alternative 7 would leave the ESUs without any
protection other than provided by ESA section 7 consultations for
actions with some Federal nexus. NMFS could not support that approach
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. Alterative 5 is the approach
taken in this rule.
As a result of comments received related to the proposed rules and
IRFAs, NMFS has modified the regulations to broaden the applicability
of some limits, and to make them more flexible. For instance, the road
maintenance limit is now generally available. The limit for development
has been broadened to cover a greater range of types of plans or
ordinances, and has been modified to allow for circumstances where a
jurisdiction's ordinances may not address all of the evaluation
criteria, but nonetheless are adequate for a limit for those aspects
addressed. These types of adjustments provide additional options for
jurisdictions that may wish to seek ESA compliance assurances.
NMFS concludes that at the present time there are no legally viable
alternatives to the final rule, as modified from the proposals, 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.
Executive Order 12866
Under E.O. 12866 (58 FR 51735, October 4, 1993), NMFS has prepared
a Regulatory Impact Review (RIR) which considers costs and benefits of
available regulatory alternatives, including the alternative of not
regulating. Costs and benefits include both quantifiable measures (to
the fullest extent that these can be usefully estimated) and
qualitative measures of costs and benefits where estimates cannot be
meaningfully made for impacts that are essential to consider. We cannot
quantify the economic effect of this rule, given the geographic scope
and the size and economic dimensions of the potentially affected
economic sectors that operate within the ESUs, but have considered
costs and benefits qualitatively in structuring the rule. Although only
a share of the benefits from the recovery of threatened salmonids to a
sustainable level would be attributable to this rule, it is clear that
the potential costs associated with imposing take prohibitions to
protect those salmonids are associated with substantial potential
tangible and intangible returns.
The ESA limits NMFS to alternatives that lead to recovery, but in
choosing among alternatives, we are obligated to consider taking the
least cost path. NMFS has concluded that among the alternative
regulatory approaches, the approach in this final rule (with changes
made in response to public comment) will maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages, distributive impacts; and equity) and minimize
costs, within the constraints of the ESA. Because this alternative
exempts activities that fall within adequate state or local programs,
NMFS' involvement will be more collaborative and less often require
enforcement actions. This alternative has the greatest probability that
compliance burdens will be equally shared, that economic incentives
will be employed in appropriate cases, and that practical standards
adapted to the particular characteristics of a state or region will aid
citizens in reducing the risks of take in an efficient way. For these
reasons, it is likely that this alternative will minimize the financial
burden on the public of avoiding take over the long term.
Executive Order 13084 Consultation and Coordination with Indian Tribal
Governments
E.O. 13084 requires that if NMFS issues a regulation that
significantly or uniquely affects the communities of Indian tribal
governments and imposes substantial direct compliance costs on those
communities, NMFS must consult with those governments or the Federal
government must provide the funds necessary to pay the direct
compliance costs incurred by the tribal governments. This rule does not
impose substantial direct compliance costs on the communities of Indian
tribal governments. Accordingly, the requirements of section 3(b) of
E.O. 13084 do not apply to this final rule.
Nonetheless, NMFS took several steps to inform tribal governments
and solicit their input during development of the proposed rule, and
made numerous adjustments to the proposal as a result of those
contacts. A number of Indian tribal governments, as well as both the
Columbia River Intertribal and Northwest Indian Fisheries
[[Page 42475]]
Commissions, commented formally on the proposed rules. In addition,
NMFS has continued both informal exchanges with tribal representatives
and meetings with tribal officials. These exchanges have resulted in
some refinements of the rule, as well as greater appreciation by NMFS
of the challenges ahead as it implements the rule. NMFS has proposed an
ongoing, regular meeting schedule to assure continued exchange of
information with the numerous tribal governments on matters of
interest, including matters associated with this rule.
Executive Order 13132--Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state law, or impose substantial direct compliance costs on state and
local governments (unless required by statute). Neither of those
circumstances is applicable to this rule. In fact, this rule provides a
route by which NMFS may defer to state and local government programs,
where they provide necessary protections for threatened salmonids.
Although not required by E.O. 13132, 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 conferred
with numerous state, local and other governmental entities while
preparing the proposed rules, and has had continued informal and formal
contacts with all affected states. We have held workshops explaining
the rule to interested local or regional entities and exploring
possible implementation strategies as well as options for future limits
with those attending.
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 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 in implementing this rule.
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 PRA, unless that collection of information displays
a currently valid OMB Control Number.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA) and which have been approved by
OMB under control number 0648-0399. Public reporting burden per
response for this collection of information is estimated to average 5
hours for a submission on diversion screenings or for a report on
salmonids assisted, disposed of, or salvaged; 20 hours to prepare a
road maintenance agreement; 30 hours for an urban ordinance development
package; and 10 hours for an urban development annual report. These
estimates include the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding these burden estimates, or any other aspect of this data
collection, including suggestions for reducing the burden, 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).
National Environmental Policy Act
NMFS prepared an Environmental Assessment (EA), as defined under
the authority of the National Environmental Policy Act (NEPA) of 1969,
in connection with this regulation. Based on review and evaluation of
the information contained in the EA, we determined that the proposed
action to promulgate protective regulations for 14 threatened salmonid
ESUs, and to create limits on the applicability of the prohibition on
taking any of those salmonids would not be a major Federal action that
would significantly affect the quality of the human environment within
the meaning of section 102(2)(c) of NEPA of 1969. NMFS received a
number of comments related to NEPA compliance, which are summarized
together with responses elsewhere in this notice. NMFS believes the EA
examined appropriate alternatives, and that preparation of an EIS is
not required. Accordingly, we adhere to our prior Finding of No
Significant Impact (FONSI) for this action. The EA and FONSI are
available (see ADDRESSES).
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation,
Dated: June 19, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set out in the preamble, 50 CFR part 223 is 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. Section 223.203 is revised to read as follows:
Sec. 223.203 Anadromous fish.
(a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA
(16 U.S.C. 1538(a)(1)) relating to endangered species apply to the
threatened species of salmonids listed in Sec. 223.102(a)(1) through
(a)(10), and (a)(12) through (a)(19), except as provided in paragraph
(b) of this section and Sec. 223.209(a).
(b) Limits on the 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 in part 222 of this chapter
II implementing such exceptions, also apply to the threatened species
of salmonids listed in Sec. 223.102(a)(1) through (a)(10), and (a)(12)
through (a)(19).
(2) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(5) through
(a)(10), and (a)(12) through (a)(19) 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 October 10, 2000. 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 March 7, 2001, whichever occurs earliest.
(3) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(4) through
(a)(10), and (a)(12) through (a)(19) 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
(IDFG), Washington Department of Fish
[[Page 42476]]
and Wildlife (WDFW), the Oregon Department of Fish and Wildlife (ODFW),
California Department of Fish and Game (CDFG), or of any other
governmental entity that has co-management authority for the listed
salmonids, when the employee or designee, acting in the course of his
or her 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 take 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)(10), and (a)(12) through (a)(19) do not apply to fishery harvest
activities provided that:
(i) Fisheries are managed in accordance with a NMFS-approved
Fishery Management and Evaluation Plan (FMEP) and implemented in
accordance with a letter of concurrence from NMFS. NMFS will approve an
FMEP only if it clearly defines its intended scope and area of impact
and sets forth the management objectives and performance indicators for
the plan. The plan must adequately address the following criteria:
(A) Define populations within affected listed ESUs, taking into
account spatial and temporal distribution, genetic and phenotypic
diversity, and other appropriate identifiably 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 listed ESU. In identifying management
units, the plan shall describe the reasons for using such units in lieu
of population units, 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 listed 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) Utilize the concepts of ``viable'' and ``critical'' salmonid
population thresholds, consistent with the concepts contained in the
technical document entitled ``Viable Salmonid Populations (NMFS,
2000b).'' The VSP paper provides a framework for identifying the
biological requirements of listed salmonids, assessing the effects of
management and conservation actions, and ensuring that such actions
provide for the survival and recovery of listed species. Proposed
management actions must recognize the significant differences in risk
associated with viable and critical population threshold states and
respond accordingly to minimize the long-term risks to population
persistence. 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 the likelihood of survival and recovery of the entire
ESU in the wild would not be appreciably reduced by greater risks to
that individual population.
(C) Set escapement objectives or maximum exploitation rates for
each management unit or population based on its status and on a harvest
program that assures that those rates or objectives are not exceeded.
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) Display a biologically based rationale demonstrating that 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) 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.
(F) Provide for evaluating monitoring data and making any revisions
of assumptions, management strategies, or objectives that data show are
needed.
(G) Provide for effective enforcement and education. Coordination
among involved jurisdictions is an important element in ensuring
regulatory effectiveness and coverage.
(H) Include restrictions on resident and anadromous species
fisheries that minimize any take of listed species, including time,
size, gear, and area restrictions.
(I) Be consistent with plans and conditions established 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 a regular basis, as
defined in NMFS' letter of concurrence for the FMEP, 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 with NMFS on its fishing regulation changes
affecting listed ESUs to ensure consistency with the approved FMEP.
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.
(iv) NMFS provides written concurrence of the FMEP which specifies
the implementation and reporting requirements. NMFS' approval of a plan
shall be a written approval by NMFS Southwest or Northwest Regional
Administrator, as appropriate. On a regular basis, NMFS will evaluate
the effectiveness of the program in protecting and achieving a level of
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 withdraw the limit for activities associated with that FMEP. Such an
announcement will
[[Page 42477]]
provide for a comment period of not less than 30 days, after which NMFS
will make a final determination whether to withdraw the limit so that
the prohibitions would then apply to those fishery harvest activities.
A template for developing FMEPs is available from NMFS Northwest
Region's website (www.nwr.noaa.gov).
(v) The prohibitions of paragraph (a) of this section relating to
threatened species of steelhead listed in Sec. 223.102 (a)(5) through
(a)(9), (a)(14), and (a)(15) do not apply to fisheries managed solely
by the states of Oregon, Washington, Idaho, and California until
January 8, 2001.
(5) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(5) through
(a)(10), and (a)(12) through (a)(19) 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 HGMP 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
conservation objectives, contribute 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 that will be used to measure the
program's success or failure.
(B) The HGMP utilizes the concepts of viable and critical salmonid
population threshold, consistent with the concepts contained in the
technical document entitled ``Viable Salmonid Populations'' (NMFS,
2000b). 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, abundances, 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 of the
ESU, broodstock collection programs may be authorized by NMFS such for
secondary purposes, as to sustain tribal, recreational, and commercial
fisheries.
(D) The HGMP includes 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 evaluates, minimizes, and accounts for the propagation
program's genetic and ecological effects on natural populations,
including disease transfer, competition, predation, and genetic
introgression caused by the straying of hatchery fish.
(F) The HGMP describes 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. For programs whose purpose is to sustain fisheries, HGMPs 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 potentially impairing
the 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 show are needed;
(J) NMFS provides written concurrence of the HGMP which specifies
the implementation and reporting requirements. For Federally operated
or funded hatcheries, the ESA 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 a regular
basis a report summarizing this information, and the implementation and
effectiveness of the HGMP as defined in NMFS' letter of concurrence.
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 a regular 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
Southwest or Northwest Regional Administrator, as appropriate.
(vi) On a regular basis, NMFS will evaluate the effectiveness of
the HGMP in protecting and achieving a level of salmonid productivity
commensurate with the conservation of the listed salmonids. If the HGMP
is not effective, the NMFS will identify to the jurisdiction 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 withdraw the limit on activities associated
with that program. Such an announcement will provide for a comment
period of no less than 30 days, after which NMFS will make a final
determination whether to withdraw the limit so that take prohibitions,
likeall other activity not within a limit, would then apply to that
program. A template for developing HGMPs is available from NMFS
Northwest Region's website (www.nwr.noaa.gov).
(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)(10), and (a)(12) through (a)(19) do not apply to actions undertaken
in compliance with a resource management plan developed jointly by the
States of Washington, Oregon and/or Idaho and the Tribes (joint plan)
within the continuing jurisdiction of United States v. Washington or
United States v. Oregon, the on-going Federal court proceedings to
enforce and implement reserved treaty fishing rights, provided that:
[[Page 42478]]
(i) The Secretary has determined pursuant to 50 CFR 223.209 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 the
parameters set forth in United States v. Washington orUnited States 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 Sec. 223.203(b)(4), or on how any hatchery and genetic
management plan addresses the criteria in Sec. 223.203(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.
(v) On a regular basis, NMFS will evaluate the effectiveness of the
joint plan in protecting and achieving a level of salmonid productivity
commensurate with conservation of the listed salmonids. If the plan is
not effective, then NMFS will identify to the jurisdiction ways in
which the joint plan 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 withdraw the limit on activities associated
with that joint plan. Such an announcement will provide for a comment
period of no less than 30 days, after which NMFS will make a final
determination whether to withdraw the limit so that take prohibitions
would then apply to that joint plan as to all other activity not within
a limit.
(7) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to scientific
research activities provided that:
(i) Scientific research activities involving purposeful take is
conducted by employees or contractors of the ODFW, WDFW (Agencies),
IDFG, or CDFG (Agencies), or as a part of a monitoring and research
program overseen by or coordinated with that Agency.
(ii) The Agencies provide for NMFS' review and approval a list of
all scientific research activities involving direct take planned for
the coming year, 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 Agencies annually provide to NMFS 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 Agencies provide NMFS annually, for its review and
approval, a report listing all scientific research activities it
conducts or permits 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 accordance with NMFS
``Guidelines for Electrofishing Waters Containing Salmonids Listed
Under the Endangered Species Act'' (NMFS, 2000a).
(vii) NMFS' approval of a research program shall be a written
approval by NMFS Northwest or Southwest Regional Administrator.
(8) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(10), and (a)(12), through (a)(19) do not apply to habitat
restoration activities, as defined in paragraph (b)(8)(iv) of this
section, provided that the activity is part of a watershed conservation
plan, and:
(i) The watershed conservation plan has been certified by the State
of Washington, Oregon, Idaho, or California (State) to be consistent
with the state's watershed conservation plan guidelines.
(ii) The State's watershed conservation plan guidelines have been
found by NMFS to provide for plans that:
(A) Take into account the potential severity of direct, indirect,
and cumulative impacts of proposed activities in light of the status of
affected species and populations.
(B) Will not reduce the likelihood of either survival or recovery
of listed species in the wild.
(C) Ensure that any taking will be incidental.
(D) Minimize and mitigate any adverse impacts.
(E) Provide for effective monitoring and adaptive management.
(F) Use the best available science and technology, including
watershed analysis.
(G) Provide for public and scientific review and input.
(H) Include any measures that NMFS determines are necessary or
appropriate.
(I) Include provisions that clearly identify those activities that
are part of plan implementation.
(J) Control risk to listed species by ensuring funding and
implementation of the above plan components.
(iii) NMFS will periodically review state certifications of
Watershed Conservation Plans to ensure adherence to approved watershed
conservation plan guidelines.
(iv) ``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.
(v) Prior to approving watershed conservation plan guidelines under
paragraph (b)(8)(ii) of this section, NMFS will publish notification in
the Federal Register announcing the availability of the proposed
guidelines for public review and comment. Such an announcement will
provide for a comment period on the draft guidelines of no less than 30
days.
(9) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to the physical
diversion of water from a stream or lake, provided that:
(i) NMFS' engineering staff or any resource agency or tribe NMFS
designates (authorized officer) 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 with any
subsequent revision.
(ii) The owner or manager of the diversion allows any NMFS engineer
or authorized officer access to the diversion facility for purposes of
inspection and determination of continued compliance with the criteria.
(iii) On a case by case basis, NMFS or an Authorized Officer will
review and approve a juvenile fish screen design
[[Page 42479]]
and construction plan and schedule that the water diverter proposes for
screen installation. The plan and schedule will describe interim
operation measures to avoid take of threatened salmonids. NMFS may
require a commitment of compensatory mitigation if implementation of
the plan and schedule is terminated prior to completion. If the plan
and schedule are not met, or if a schedule modification is made that is
not approved by NMFS or Authorized Officer, or if the screen
installation deviates from the approved design, the water diversion
will be subject to take prohibitions and mitigation.
(iv) This limit on the prohibitions of paragraph (a) of this
section does not encompass any impacts of reduced flows resulting from
the diversion or impacts caused during installation of the diversion
device. These impacts are 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)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to routine road
maintenance activities provided that:
(i) The activity results from routine road maintenance activity
conducted by ODOT employees or agents that complies with ODOT's
Transportation Maintenance Management System Water Quality and Habitat
Guide (July, 1999); or by employees or agents of a state, county, city
or port that complies with a program substantially similar to that
contained in the ODOT Guide that is determined to meet or exceed the
protections provided by the ODOT Guide; or by employees or agents of a
state, county, city or port that complies with a routine road
maintenance program that meets proper functioning habitat conditions as
described further in subparagraph (ii) following. NMFS' approval of
state, city, county, or port programs that are equivalent to the ODOT
program, or of any amendments, shall be a written approval by NMFS
Northwest or Southwest Regional Administrator, whichever is
appropriate. Any jurisdiction desiring its routine road maintenance
activities to be within this limit must first commit in writing to
apply management practices that result in protections equivalent to or
better than those provided by the ODOT Guide, detailing how it will
assure adequate training, tracking, and reporting, and describing in
detail any dust abatement practices it requests to be covered.
(ii) NMFS finds the routine road maintenance activities of any
state, city, county, or port to be consistent with the conservation of
listed salmonids' habitat when it contributes, as does the ODOT Guide,
to the attainment and maintenance of properly functioning condition
(PFC). NMFS defines PFC as the sustained presence of natural habitat-
forming processes that are necessary for the long-term survival of
salmonids through the full range of environmental variation. Actions
that affect salmonid habitat must not impair properly functioning
habitat, appreciably reduce the functioning of already impaired
habitat, or retard the long-term progress of impaired habitat toward
PFC. Periodically, NMFS will evaluate an approved program for its
effectiveness in maintaining and achieving habitat function that
provides for conservation of the listed salmonids. Whenever warranted,
NMFS will identify to the jurisdiction ways in which the program needs
to be altered or strengthened. Changes may be identified 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 any jurisdiction within the limit does not make changes to
respond adequately to the new information in the shortest amount of
time feasible, but not longer than one year, NMFS will publish
notification in the Federal Register announcing its intention to
withdraw the limit so that take prohibitions would then apply to the
program as to all other activity not within a limit. Such an
announcement will provide for a comment period of no less than 30 days,
after which NMFS will make a final determination whether to subject the
activities to the ESA section 9(a)(1) prohibitions.
(iii) Prior to implementing any changes to a program within this
limit the jurisdiction provides NMFS a copy of the proposed change for
review and approval as within this limit.
(iv) Prior to approving any state, city, county, or port program as
within this limit, or approving any substantive change in a program
within this limit, NMFS will publish notification in the Federal
Register announcing the availability of the program or the draft
changes for public review and comment. Such an announcement will
provide for a comment period of not less than 30 days.
(v) Pesticide and herbicide spraying is not included within this
limit, even if in accord with the ODOT guidance.
(11) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to activities within
the City of Portland, Oregon Parks and Recreation Department's (PP&R)
Pest Management Program (March 1997), including its Waterways Pest
Management Policy updated December 1, 1999, provided that:
(i) Use of only the following chemicals is included within this
limit on the take prohibitions: Round Up, Rodeo, Garlon 3A, Surfactant
LI-700, 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,
including the Waterways Pest Management Policy, updated December 1,
1999.
(iii) Any chemical use within a 25 ft. (7.5 m) buffer complies with
the buffer application constraints contained in PP&R's Waterways Pest
Management Policy (update December 1, 1999).
(iv) Prior to implementing any changes to this limit, the PP&R
provides NMFS with a copy of the proposed change for review and
approval as within this limit.
(v) Prior to approving any substantive change in a program within
this limit, NMFS will publish notification in the Federal Register
announcing the availability of the program or the draft changes for
public review and comment. Such an announcement will provide for a
comment period of no less than 30 days.
(vi) NMFS' approval of amendments shall be a written approval by
NMFS Northwest Regional Administrator.
(vii) NMFS finds the PP&R Pest Management Program activities to be
consistent with the conservation of listed salmonids' habitat by
contributing to the attainment and maintenance of properly functioning
condition (PFC). NMFS defines PFC as the sustained presence of a
watershed's natural habitat-forming processes that are necessary for
the long-term survival of salmonids through the full range of
environmental variation. Actions that affect salmonid habitat must not
impair properly functioning habitat, appreciably reduce the functioning
of already impaired habitat, or retard the long-term progress of
impaired habitat toward PFC. Periodically, NMFS will evaluate the
effectiveness of an approved program in maintaining and achieving
habitat function that provides for conservation of the listed
salmonids. Whenever warranted, NMFS will identify to the jurisdiction
ways in which the program needs to be altered or strengthened. Changes
may be identified if the program is not
[[Page 42480]]
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 any jurisdiction within the limit does not make changes to respond
adequately to the new information in the shortest amount of time
feasible, but not longer than 1 year, NMFS will publish notification in
the Federal Register announcing its intention to withdraw the limit so
that take prohibitions would then apply to the program as to all other
activity not within a limit. Such an announcement will provide for a
comment period of no less than 30 days, after which NMFS will make a
final determination whether to subject the activities to the ESA
section 9(a)(1) prohibitions.
(12) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(5) through
(a)(10), and (a)(12) through (a)(19) do not apply to municipal,
residential, commercial, and industrial (MRCI) development (including
redevelopment) activities provided that:
(i) Such development occurs pursuant to city, county, or regional
government ordinances or plans that NMFS has determined are adequately
protective of listed species; or within the jurisdiction of the Metro
regional government in Oregon and pursuant to ordinances that Metro has
found comply with its Urban Growth Management Functional Plan
(Functional Plan) following a determination by NMFS that the Functional
Plan is adequately protective. NMFS approval or determinations about
any MRCI development ordinances or plans, including the Functional
Plan, shall be a written approval by NMFS Northwest or Southwest
Regional Administrator, whichever is appropriate. NMFS will apply the
following 12 evaluation considerations when reviewing MRCI development
ordinances or plans to assess whether they adequately conserve listed
salmonids by maintaining and restoring properly functioning habitat
conditions:
(A) MRCI development ordinance or plan ensures that development
will avoid inappropriate areas such as unstable slopes, wetlands, areas
of high habitat value, and similarly constrained sites.
(B) MRCI development ordinance or plan adequately avoids stormwater
discharge impacts to water quality and quantity or to the hydrograph of
the watershed, including peak and base flows of perennial streams.
(C) MRCI development ordinance or plan provides adequately
protective riparian area management requirements to attain or maintain
PFC around all rivers, estuaries, streams, lakes, deepwater habitats,
and intermittent streams. Compensatory mitigation is provided, where
necessary, to offset unavoidable damage to PFC due to MRCI development
impacts to riparian management areas.
(D) MRCI development ordinance or plan avoids stream crossings by
roads, utilities, and other linear development wherever possible, and,
where crossings must be provided, minimize impacts through choice of
mode, sizing, and placement.
(E) MRCI development ordinance or plan adequately protects
historical stream meander patterns and channel migration zones and
avoids hardening of stream banks and shorelines.
(F) MRCI development ordinance or plan adequately protects wetlands
and wetland functions, including isolated wetlands.
(G) MRCI development ordinance or plan adequately preserves the
hydrologic capacity of permanent and intermittent streams to pass peak
flows.
(H) MRCI development ordinance or plan includes adequate provisions
for landscaping with native vegetation to reduce need for watering and
application of herbicides, pesticides, and fertilizer.
(I) MRCI development ordinance or plan includes adequate provisions
to prevent erosion and sediment run-off during construction.
(J) MRCI development ordinance or plan ensures that water supply
demands 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) MRCI development ordinance or plan provides necessary
enforcement, funding, reporting, and implementation mechanisms and
formal plan evaluations at intervals that do not exceed 5 years.
(L) MRCI development ordinance and plan complies with all other
state and Federal environmental and natural resource laws and permits.
(ii) The city, county or regional government provides NMFS with
annual reports regarding implementation and effectiveness of the
ordinances, including: any water quality monitoring information the
jurisdiction has available; aerial photography (or some other graphic
display) of each MRCI development or MRCI expansion area at sufficient
detail to demonstrate the width and vegetation condition of riparian
set-backs; information to demonstrate the success of stormwater
management and other conservation measures; and a summary of any flood
damage, maintenance problems, or other issues.
(iii) NMFS finds the MRCI development activity to be consistent
with the conservation of listed salmonids' habitat when it contributes
to the attainment and maintenance of PFC. NMFS defines PFC as the
sustained presence of a watershed's habitat-forming processes that are
necessary for the long-term survival of salmonids through the full
range of environmental variation. Actions that affect salmonid habitat
must not impair properly functioning habitat, appreciably reduce the
functioning of already impaired habitat, or retard the long-term
progress of impaired habitat toward PFC. Periodically, NMFS will
evaluate an approved program for its effectiveness in maintaining and
achieving habitat function that provides for conservation of the listed
salmonids. Whenever warranted, NMFS will identify to the jurisdiction
ways in which the program needs to be altered or strengthened. Changes
may be identified 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 any jurisdiction within the limit
does not make changes to respond adequately to the new information in
the shortest amount of time feasible, but not longer than 1 year, NMFS
will publish notification in the Federal Register announcing its
intention to withdraw the limit so that take prohibitions would then
apply to the program as to all other activity not within a limit. Such
an announcement will provide for a comment period of no less than 30
days, after which NMFS will make a final determination whether to
subject the activities to the ESA section 9(a)(1) prohibitions.
(iv) Prior to approving any city, county, or regional government
ordinances or plans as within this limit, or approving any substantive
change in an ordinance or plan within this limit, NMFS will publish
notification in the Federal Register announcing the availability of the
ordinance or plan or the draft changes for public review and comment.
Such an announcement will provide for a comment period of no less than
30 days.
(13) The prohibitions of paragraph (a) of this section relating to
threatened
[[Page 42481]]
species of salmonids listed in Sec. 223.102 (a)(12), (a)(13), (a)(16),
(a)(17), and (a) (19) 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
adopted and 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.
(ii) All non-regulatory elements of the Forests and Fish Report are
being implemented.
(iii) Actions involving use of herbicides, pesticides, or
fungicides are not included within this limit.
(iv) Actions taken under alternative plans are included in this
limit provided that the Washington Department of Natural Resources
(WDNR) finds that the alternate plans protect physical and biological
processes at least as well as the state forest practices rules and
provided that NMFS, or any resource agency or tribe NMFS designates,
has the opportunity to review the plan at every stage of the
development and implementation. A plan may be excluded from this limit
if, after such review, WDNR determines that the plan is not likely to
adequately protect listed salmon.
(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) NMFS finds the activities to be consistent with the
conservation of listed salmonids' habitat by contributing to the
attainment and maintenance of PFC. NMFS defines PFC as the sustained
presence of a watershed's natural habitat-forming processes that are
necessary for the long-term survival of salmonids through the full
range of environmental variation. Actions that affect salmonid habitat
must not impair properly functioning habitat, appreciably reduce the
functioning of already impaired habitat, or retard the long-term
progress of impaired habitat toward PFC. Programs must meet this
biological standard in order for NMFS to find they qualify for a
habitat-related limit. NMFS uses the best available science to make
these determinations. NMFS may review and revise previous findings as
new scientific information becomes available. NMFS will evaluate the
effectiveness of the program in maintaining and achieving habitat
function that provides for conservation of the listed salmonids. If the
program is not adequate, NMFS will identify to the jurisdiction ways in
which the program needs to be altered or strengthened. Changes may be
identified 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
withdraw the limit on activities associated with the program. Such an
announcement will provide for a comment period of no less than 30 days,
after which NMFS will make a final determination whether to subject the
activities to the ESA section 9(a)(1) take prohibitions.
(vii) NMFS approval of regulations shall be a written approval by
NMFS Northwest Regional Administrator.
(c) Affirmative defense. In connection with any action alleging a
violation of the prohibitions of paragraph (a) of this section with
respect to the threatened species of salmonids listed in Sec. 223.102
(a)(5) through (a)(10), and (a)(12) through (a)(19), any person
claiming the benefit of any limit listed in paragraph (b) of this
section or Sec. 223.209(a) shall have a defense where the person can
demonstrate that the limit is applicable and was in force, and that the
person fully complied with the limit at the time of the alleged
violation. This defense is an affirmative defense that must be raised,
pleaded, and proven by the proponent. If proven, this defense will be
an absolute defense to liability under section (a)(1)(G) of the ESA
with respect to the alleged violation.
(d) Severability. The provisions of this section and the various
applications thereof are distinct and severable from one another. If
any provision or the application thereof to any person or circumstances
is stayed or determined to be invalid, such stay or invalidity shall
not affect other provisions, or the application of such provisions to
other persons or circumstances, which can be given effect without the
stayed or invalid provision or application.
[FR Doc. 00-16933 Filed 7-7-00; 8:45 am]
BILLING CODE 3510-22-F