[Federal Register Volume 66, Number 160 (Friday, August 17, 2001)]
[Proposed Rules]
[Pages 43150-43170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20570]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 010521133-1133-01 ; I.D. No. 050101B]
RIN 0648-AP17
Endangered and Threatened Species; Proposed Rule Governing Take
of Four Threatened Evolutionarily Significant Units (ESUs) of West
Coast Salmonids: California Central Valley Spring-run Chinook;
California Coastal Chinook; Northern California Steelhead; Central
California Coast Coho
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
[[Page 43151]]
SUMMARY: Under the Endangered Species Act (ESA), the Secretary of
Commerce (Secretary) is required to adopt such regulations as he deems
necessary and advisable for the conservation of species listed as
threatened. This proposed ESA 4(d) rule would apply the take
prohibitions enumerated in section 9(a)(1) of the ESA in most
circumstances to California Central Valley Chinook, California Coastal
Chinook and Northern California steelhead that do not currently have
4(d) protective regulations in place. However, for these three
threatened ESUs, NMFS is proposing 10 categories of activities for
which the take prohibitions would not apply. NMFS believes that these
activities contribute to conserving the listed salmonids or are
governed by certain programs that adequately limit impacts on the ESUs.
For the threatened Central California Coast coho salmon ESU, a 4(d)
rule is currently in place which generally applies the take
prohibitions enumerated in section 9(a)(1) of the ESA to this ESU. For
this ESU, NMFS is proposing to amend its existing regulations to allow
the same 10 limits on the application of the take prohibitions which
are proposed for the chinook and steelhead ESUs described here.
DATES: Comments on this proposed rule must be received at the
appropriate address (see ADDRESSES), no later than 5 p.m., Pacific
standard time, on October 1, 2001. The dates and locations of public
hearings regarding this proposal will be published in a susequent
Federal Register document.
ADDRESSES: Written comments and requests for information should be sent
to the Assistant Regional Administrator, Protected Resources Division,
NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA
90802-4213. Comments will not be accepted if submitted via e-mail or
Internet. For copies of guidance documents see Appendix A to 50 CFR
223.203.
FOR FURTHER INFORMATION CONTACT: Craig Wingert at 562-980-4021, Miles
Croom at 707-575-6068, Diane Windham at 916-930-3601, or Chris Mobley
at 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
On September 16, 1999, NMFS published a final rule listing the
California Central Valley (CCV) Spring-run Chinook and California
Coastal (CC) Chinook ESUs (Oncorhynchus tshawytscha or O. tshawytscha)
as threatened species (64 FR 50394). In a final rule published on June
7, 2000, NMFS also listed the Northern California (NC) steelhead ESU
(O. mykiss) as a threatened species (65 FR 36074). These final rules
describe the background of the listing actions and provide a summary of
NMFS' conclusions regarding the status of these three ESUs. NMFS has
not previously proposed any protective regulations, pursuant to section
4(d) of the ESA, for these three ESUs.
On October 31, 1996, NMFS listed the Central California Coast (CCC)
coho salmon (O. kisutch) ESU as a threatened species (61 FR 56138). The
final rule describes the background for this coho salmon listing action
and also provides a summary of NMFS' conclusions regarding the status
of the ESU. In conjunction with this final listing notice for the CCC
coho salmon ESU, NMFS published a final ESA 4(d) rule which put in
place the prohibitions of section 9(a)(1) of the ESA for this ESU. The
4(d) rule for this ESU did not contain any of the limitations on the
take prohibitions which NMFS included in its July 10, 2000, rule for 14
other threatened ESUs of salmon and steelhead (65 FR 42422).
Section 4(d) of the ESA provides that whenever a species is listed
as threatened, the Secretary of Commerce (Secretary) shall issue such
regulations as he deems necessary and advisable to provide for the
conservation of the species. Such protective regulations may include
any or all of the prohibitions that apply automatically to protect
endangered species under ESA section 9(a). Those section 9(a)
prohibitions, in part, make it illegal for any person subject to the
jurisdiction of the United States to take (including harass, harm,
pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt any
of these), import or export, ship in interstate commerce in the course
of commercial activity, or sell or offer for sale in interstate or
foreign commerce any wildlife species listed as endangered, unless with
written authorization for incidental take. It is also illegal under
section 9 of the ESA to possess, sell, deliver, carry, transport, or
ship any such wildlife that has been taken illegally. Section 11 of the
ESA provides for civil and criminal penalties for violation of section
9 or of regulations issued under the ESA.
Whether take prohibitions or other protective regulations are
necessary or advisable is in large part dependent upon the biological
status of the species and potential impacts of various activities on
the species. The salmon and steelhead ESUs that are covered by this
proposed rule have survived for thousands of years through cycles in
ocean conditions and weather; therefore, NMFS has concluded that they
are at risk of extinction primarily because their populations have been
reduced by human ``take''. These ESUs have declined in abundance due to
take of fish from harvest, past and ongoing destruction or damage to
freshwater and estuarine habitats, hatchery practices, hydropower
development, and other causes. Two reports prepared by NMFS (NMFS 1996
and 1998) reviewed the factors which have contributed to the decline of
west coast steelhead and chinook populations, including these ESUs, and
both conclude that all of the factors identified in section 4(a)(1) of
the ESA have played some role in their decline. The reports identify
destruction and modification of habitat, over-utilization, and hatchery
effects as significant reasons for the species' declines. While the
most influential factors differ from species to species and among ESUs
depending on their geographic location, loss and degradation of habitat
conditions, harvest impacts, and in some instances hatchery impacts are
factors that have affected all of the ESUs. Accordingly, NMFS is
proposing in most circumstances to apply the section 9 take
prohibitions to the threatened ESUs covered in this proposed rule, in
order to provide for their conservation.
Although the primary purpose of state, local and other non-Federal
programs is generally to further some activity such as maintaining
roads, controlling development, ensuring clean water or harvesting
trees, rather than conserving salmon or steelhead, some entities have
modified one or more of these programs to protect and conserve listed
salmonids and protect their habitat. NMFS believes that with
appropriate safeguards, many state, local and other non-Federal
activities can be specifically tailored to minimize impacts on listed
salmonid ESUs such that additional Federal protections are unnecessary
for their conservation.
NMFS, therefore, is proposing a mechanism for the salmon and
steelhead ESUs covered by this proposed rule whereby state, local and
other non-Federal entities can be assured that certain activities they
conduct or permit are consistent with ESA requirements and avoid or
minimize the risk of take of listed fish. When such a program provides
sufficient conservation for these listed salmonid ESUs, NMFS does not
find it necessary and advisable to apply take prohibitions to
activities governed by those programs. In those circumstances, as
described in more detail herein, additional Federal ESA regulation
through the section 9(a) take
[[Page 43152]]
prohibitions is not necessary and advisable because it would not
meaningfully contribute to the conservation of the listed ESUs. In
fact, not applying take prohibitions to programs that meet such
standards may result in even greater conservation gains for a listed
ESU than would the blanket application of take prohibitions, through
implementation of the program itself and by demonstrating to similarly
situated jurisdictions or entities that practical and realistic
salmonid protection measures exist. An additional benefit of this
approach is that NMFS can focus its enforcement efforts on activities
and programs that have not yet adequately addressed the conservation
needs of these threatened ESUs.
Substantive Content of Proposed Regulation
NMFS has not previously proposed any ESA 4(d) protective
regulations for the CCV spring chinook salmon, CC chinook salmon or NC
steelhead ESUs which are addressed in this proposed rule. However, when
the CCC coho salmon ESU was listed in 1996, NMFS did adopt a 4(d)
protective regulation which applied the section 9(a) take prohibitions
to that ESU, but did not incorporate the take limitations which were
recently adopted for 14 other threatened salmonids ESUs (65 FR 42422)
and are proposed in this rule. To ensure that the 4(d) rule for the CCC
coho salmon ESU is consistent with existing or proposed 4(d)rules for
threatened salmonids which have overlapping distributions (i.e., CCC
steelhead, NC steelhead, and CC chinook ESUs), NMFS proposes to modify
the existing 4(d) rule for CCC coho salmon by incorporating the take
limitations which are described in this proposed rule.
NMFS believes that the section 9(a) take prohibitions, which are
applicable for endangered species, are necessary and advisable for
conservation of the threatened salmon and steelhead ESUs covered by
this proposed rule, but that take of listed fish in these ESUs need not
be prohibited when it results from the activities described herein if
specified conservation standards or criteria are met. Such activities
are those which are conducted in a way that contributes to conserving
the threatened ESUs, or are governed by a program that limits impacts
on the threatened ESUs to an extent that makes added protection through
Federal regulation unnecessary and unadvisable for their conservation.
NMFS, therefore, proposes to apply ESA section 9(a) prohibitions to the
CCV spring chinook, CC chinook, and NC steelhead ESUs, but not to apply
the take prohibitions to the 10 programs, or take limitations,
described in this proposed rule that meet the necessary level of
protection and conservation. In addition, NMFS is proposing to apply
the same 10 take limitations described herein to the CCC coho salmon
ESU which currently has all the section 9(a) take prohibitions in
place. As an alternative to utilizing the 10 limitations on the take
prohibitions described in this proposed rule, responsible entities may
choose to seek an ESA section 10 permit from NMFS.
NMFS has identified several programs for which it is not necessary
and advisable to impose take prohibitions because they contribute to
conserving the threatened ESUs or are governed by a program that
adequately limits impacts on listed salmonids. Under specified
conditions and in appropriate geographic areas, these include: (1)
activities conducted in accord with ESA incidental take authorization;
(2) ongoing scientific research activities, for a period of 6 months;
(3) emergency actions related to injured, stranded, or dead salmonids;
(4) fishery management activities; (5) hatchery and genetic management
programs; (6) scientific research activities permitted or conducted by
the State of California; (7) state, local, and private habitat
restoration activities that are part of approved watershed conservation
plans; (8) properly screened water diversion devices (i.e., screening
devices per NMFS' guidelines or equivalent configurations); (9) routine
road maintenance activities; and (10) municipal, residential,
commercial, and industrial (MRCI) development activities. These take
limitations are described in more detail in following sections. In most
instances, these take limitations and criteria are for future programs
where NMFS will limit the application of the ESA section 9(a)(1) take
prohibitions. More comprehensive descriptions of each limit are
contained in ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 2000) which
can be obtained at the NMFS Southwest Region' web site (http://swr.nmfs.noaa.gov). NMFS anticipates that new take limits may be added
to these regulations in the future for additional activities that are
found to be necessary and sufficient for the conservation of the
threatened ESUs.
NMFS emphasizes that these take limits are not prescriptive
regulations. The fact that an activity is not conducted within the
specified criteria for a take limit does not necessarily mean that the
activity violates the ESA or this regulation. Many activities do not
affect the threatened ESUs covered by this proposed rule, and,
therefore, do not need to be conducted within any of the ten limits
listed previously to avoid section 9 take violations. Nevertheless, an
entity can be certain it is not at risk of violating the section 9 take
prohibitions or at risk of enforcement actions if it conducts its
activities in accordance with the take limits since the take
prohibitions would not be applied to programs or activities conducted
within the limits. Jurisdictions, entities, and individuals are
encouraged to evaluate their practices and activities to determine the
likelihood of whether take is occurring. NMFS can provide ESA coverage
through section 4(d) rules, section 10 research, enhancement, and
incidental take permits, or through section 7 consultation with Federal
agencies. If take is likely to occur, then the jurisdiction, entity or
individual should modify its practices to avoid the take of these
threatened salmonid ESUs or seek protection from potential ESA
liability through section 7, section 10, or section 4(d) procedures.
Jurisdictions, entities, and individuals are not required to seek
coverage under an ESA 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 the individual limits.
Finally, a jurisdiction, entity, or individual may seek to qualify its
plans or ordinances for inclusion under a take limit by obtaining a
4(d) take limit authorization from the NMFS Southwest Region
Administrator.
NMFS will continue to work collaboratively with all affected
governmental entities to recognize existing management programs that
conserve and meet the biological requirements of listed salmonids, and
to strengthen other programs toward the conservation of listed
salmonids. Any final rule resulting from this proposal may be amended
to add new limits on the take prohibitions, or to amend or delete
adopted take limits as circumstances warrant.
Following is a section entitled ``Notice of Availability'' which
lists four documents referred to in this proposed regulation. The
purpose of making these documents available to the public is to inform
governmental entities and other interested parties of the technical
components expected to be addressed in programs submitted for NMFS'
review. These technical documents provide guidance to entities as they
consider whether to submit a program for an ESA 4(d) limit. The
documents represent several kinds of guidance, and are not
[[Page 43153]]
binding regulations requiring particular actions by any entity or
interested party.
For example, NMFS' technical report entitled: ``Viable Salmonid
Populations (VSP) and the Recovery of ESUs'', which is referenced in
the fishery and harvest management take limits, provides a framework
for identifying populations and their status as a component of
developing adequate harvest or hatchery management plans. The proposed
rule indicates that Fishery Management and Evaluation Plans (FMEPs) and
Hatchery and Genetic Management Plans (HGMPs) utilize the concepts of
`viable' and `critical' salmonid population thresholds, consistent with
the concepts contained in NMFS's VSP technical report. The California
Department of Fish and Game, therefore, is put on notice about the
technical analysis needed to develop an FMEP or HGMP that NMFS can
approve as being within the take limit criteria. 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 a 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.
The Oregon Department of Transportation's (ODOT) road maintenance
program for governing routine maintenance activities is an existing
program currently being implemented that NMFS has found adequate for
threatened ESU conservation, and, therefore, has been established as a
take limitation in a previous ESA 4(d) rule (65 FR 42422). Other
jurisdictions may come within the road maintenance limit if they use
the ODOT program or provide other practices found by NMFS to be more or
equally as protective of salmonids.
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 accept
comments on revisions of any of the referenced state programs. If any
of these documents are 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 50 CFR
223.203(b).
Notice of Availability
The following is a list of documents cited in the regulatory text
of this proposed rule. Copies of these documents may be obtained upon
request (see Appendix A to 50 CFR 223.203).
1. Oregon Department of Transportation (ODOT) Maintenance
Management System Water Quality and Habitat Guide (July, 1999).
2. Guidelines for Electrofishing Waters Containing Salmonids Listed
Under the Endangered Species Act (NMFS, 2000a).
3. Fish Screening Criteria for Anadromous Salmonids, National
Marine Fisheries Service, Southwest Region, 1997.
4. Viable Salmonid Populations and the Recovery of Evolutionarily
Significant Units. (June 2000).
Copies of all references, reports, related documents and the ESA
4(d) rule supplementary document entitled: ``A Citizen's Guide to the
4(d) Rule'' (NMFS, 2000) are also available upon request (see
ADDRESSES). Some of these documents are also available on the Southwest
Region's web site (http://swr.nmfs.noaa.gov).
The limits on the take prohibitions in this proposed rule 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 the ESUs covered by this proposed rule or any other 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.
Take Guidance
The threatened salmonid ESUs addressed in this proposed rule 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 acts
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 (64 FR 60727, November 8, 1999).
On July 1, 1994 (59 FR 34272), NMFS and the U.S. Fish and Wildlife
Service (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 results
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 the 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 here are as cited in NMFS' harm rule
(64 FR 60727, 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.
[[Page 43154]]
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 stream flow 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 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 causing 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 threatened ESUs addressed in this proposed rule.
Determination of whether take has actually occurred depends on the
circumstances of a particular case.
Many activities that may kill or injure salmonids such as fill and
removal authorities, National Pollutant Discharge Elimination System or
other water quality permitting, and pesticide use are regulated by
state and/or Federal processes. For those types of activities, NMFS
would not 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 pesticide 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 concluding 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 proposed 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) would
constitute a violation of this rule if finalized.
Impacts on listed salmonids resulting from actions in compliance
with a permit issued by NMFS pursuant to section 10 of the ESA would
not constitute a violation of this proposed rule if finalized. 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
will not constitute violations of this proposed rule provided the
activities are conducted in accord with all reasonable and prudent
measures and terms and conditions contained in any biological opinion
or incidental take statement issued by NMFS.
Aids for Understanding the Limits on the Take Prohibitions
Issue 1: Population and Habitat Concepts
This proposed rule references scientific concepts that NMFS
proposes to use in determining whether particular programs would not be
subject to the ESA section 9 take prohibitions. One of these concepts
allows for identifying populations that may warrant individual
management within established ESUs for some activities or programs. The
second concept involves identifying relevant biological parameters to
evaluate the status of these populations and identifying ``critical
thresholds'' and ``viable thresholds'' for these populations. NMFS has
developed a scientific and policy paper entitled ``Viable Salmonid
Populations and the Recovery of ESUs'' (NMFS, 2000b) that addresses the
biological concepts surrounding viable salmonid populations in more
detail. This paper will provide additional guidance for entities
evaluating their
[[Page 43155]]
programs under this proposed rule if it is finalized. A third concept
describes the freshwater habitat biological requirements of salmonids
in terms of whether habitat is functioning properly.
Identifying Populations within ESUs
NMFS proposes to define populations following Ricker's (1972)
definition of ``stock'': a population is a group of fish of the same
species spawning in a particular lake or stream (or portion thereof) at
a particular season which to a substantial degree do not interbreed
with fish from any other group spawning in a different place or in the
same place at a different season. This definition is widely accepted
and applied in the field of fishery management. An independent
population is an aggregation of one or more local breeding units that
are closely linked by exchange of individuals among themselves, but are
sufficiently isolated from other independent populations that exchanges
of individuals among populations do not appreciably affect the
population dynamics or extinction risk of the populations over a 100-
year time frame. Such populations will generally be smaller than the
whole ESU, and will generally inhabit geographic ranges on the scale of
whole river basins or major sub-basins that are relatively isolated
from outside migration. Using this definition, it is biologically
meaningful to evaluate and discuss the extinction risk of one
population independently of other populations within the same ESU.
Several types of information may be used to identify independent
salmonid populations within existing ESUs, including: (1) geographic
indicators; (2) estimates of adult dispersal; (3) abundance
correlations; (4) habitat characteristics; (5) genetic markers; and (6)
quantitative traits. States and other groups involved in salmonid
management have defined groups of fish for management purposes based on
some or all of this information, and many of the definitions already
used by managers are similar to the population definitions proposed
here. Further, while the types of information identified above may be
useful in defining independent populations within ESUs, other methods
may exist for identifying biologically meaningful population units
consistent with the definitions adopted here. Therefore, NMFS will
evaluate proposed population boundaries on a case-by-case basis to
determine if such boundaries are biologically supportable and
consistent with the population definition in this proposed rule.
NMFS believes it important to identify population units within
established ESUs for several reasons. Identifying and assessing impacts
on such units will enable greater consideration of the important
biological diversity contained within each ESU, a factor considered in
NMFS' ESU policy (Waples, 1991). Further, assessing impacts on a
population level is typically a more practical undertaking given the
scale and complexity of ESUs. Finally, assessing impacts on a
population level will help ensure consistent treatment of listed
salmonids across a diverse geographic and jurisdictional range.
Assessing Population Status
NMFS proposes to evaluate population status through four primary
biological parameters: (1) Abundance; (2) productivity; (3) population
substructure; and (4) genetic diversity. A discussion of the relevance
of these parameters to salmonid population status may be found in a
variety of scientific documents (e.g., Nehlsen et al., 1991; Burgman et
al., 1993; Huntington et al., 1996; Caughley and Gunn, 1996; Myers et
al., 1998).
Population abundance is important to evaluate due to potential
impacts associated with genetic and demographic risks. Genetic risks
associated with low population size include inbreeding depression and
loss of genetic diversity. Demographic risks associated with low
population size include random effects associated with stochastic
environmental events. Population size may be assessed and estimated
from dam and weir counts, redd counts, spawner surveys, and other
means. Viable abundance levels may be determined, based on historic
abundance levels or habitat capacity of the population.
Population productivity may be thought of as the population's
ability to increase or maintain its abundance. It is important to
assess productivity since negative trends in productivity over
sustained periods may lead to genetic and demographic impacts
associated with small population sizes. However, trends in other
parameters such as survival between life stages, age structure, and
fecundity may also be useful in assessing productivity. In general,
viable population trends should be positive unless the population is
already at or above viable abundance levels. In that case, neutral or
negative population trends may be acceptable so long as such declines
will not lead the population to decline below viable abundance levels
in the foreseeable future.
Population structure reflects the number, size and distribution of
remaining habitat patches and the condition of migration corridors that
provide linkages among these habitat types. Population structure
affects evolutionary processes and may impact the ability of
populations to respond to environmental changes or stochastic events.
Habitat deficiencies, such as loss of migration corridors between
habitat types, can lead to a high risk of extinction and may not become
readily apparent through evaluating population sizes or productivity.
Determining whether viable population structure exists may require
comparison of existing and historic habitat conditions.
Population diversity is important because variation among
populations is likely to buffer them against short term environmental
change and stochastic events. Population diversity may be assessed by
examining life history traits such as age, and run and spawn timing
distributions. Further, more direct analysis of genetic diversity
through DNA analysis may provide an indication of diversity. Viable
population diversity will likely be determined through comparisons to
historic information or comparisons to other populations existing in
relatively undisturbed conditions. Ultimately, population diversity
must be sufficient to buffer the population against normal
environmental variation.
Establishing Population Thresholds
In applying the concepts discussed in this section to harvest and
artificial propagation activities, NMFS relies on two functional
thresholds of population status: (1) Critical population threshold, and
(2) viable population threshold. The critical population threshold
refers to a minimal functional level below which a population's risk of
extinction increases exponentially in response to any additional
genetic or demographic risks.
The viable population threshold refers to a condition where the
population is self-sustaining, and not at risk of becoming endangered
in the foreseeable future. This threshold reflects the desired
condition of individual populations and of their contribution to
recovery of the ESU as a whole. Activities should not preclude
populations from attaining this condition.
Evaluating Habitat Conditions
This proposed rule limits application of the take prohibitions for
certain categories of activities that are conducted in a way that will
help attain or protect properly functioning habitat. Properly
functioning habitat conditions
[[Page 43156]]
create and sustain the physical and biological features that are
essential to conservation of the species, whether important for
spawning, breeding, rearing, feeding, migration, sheltering, or other
functions. Such features include water quantity; water quality
attributes such as temperature, pH, oxygen content, etc; suitability of
substrate for spawning; freedom from passage impediments; and
availability of pools and other shelter. These features are not static;
the concept of proper function recognizes that natural patterns of
habitat disturbance, such as flooding, landslides and wildfires, will
continue. Properly functioning habitat conditions are conditions that
sustain a watershed's natural habitat-affecting processes (bedload
transport, riparian community succession, precipitation runoff
patterns, channel migration, etc.) over the full range of environmental
variation, and that support salmonid productivity at a viable
population level. Specific criteria associated with achieving these
conditions are listed with each habitat-related limit on take
prohibitions.
Issue 2: Direct and Incidental Take
Section 4(d) of the ESA requires that regulations be adopted as are
``necessary and advisable to provide for the conservation of'' the
listed species. In discussing the limits on the take prohibitions, NMFS
does not generally distinguish ``incidental'' from ``direct'' take
because that distinction is not relevant under section 4(d). The
biological impact of take on the ESU is the same, whether a particular
number of listed fish are lost as a result of incidental impacts or
directed impacts. Hence the following descriptions of harvest and
artificial propagation programs for which NMFS does not find it
necessary and advisable to impose take prohibitions do not, as a
general rule, make the distinction between incidental or direct take.
Rather, these descriptions and criteria focus on the impacts of all
take associated with a particular activity on the biological status of
the listed ESU. (The distinction is retained in the discussion of
scientific research targeting listed fish, because the limit on take
prohibitions applies in that situation only to research by agency
personnel or agency contractors.)
Issue 3: Applicability of Proposed Rule to Specific ESUs
In the regulatory language in this proposed rule, the limits on
applicability of the take prohibitions to specific ESUs 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 document, 50 CFR
223.102 refers to the threatened salmonid ESUs covered in this proposed
rule through the following designations:
(a)(3) Central California Coast coho salmon
(a)(20) Central Valley spring-run chinook salmon
(a)(21) California Coastal chinook salmon
(a)(22) Northern California steelhead
Issue 4: Regular Evaluation of Limits on Take Prohibitions
In making a determination that it is not necessary and advisable to
impose take prohibitions on certain programs or activities that are
adequately covered by one of the take limits in this proposed rule,
NMFS recognizes that new information may require a reevaluation of that
conclusion at any time. For any of the limits on the take prohibitions
described in this proposed rule, NMFS will evaluate on a regular basis
the effectiveness of the program in protecting and achieving a level of
salmonid productivity and/or of habitat function consistent with
conservation of the listed salmonids. If the program is deficient, NMFS
will identify ways in which it needs to be altered or strengthened. For
habitat-related limits on the take prohibitions, changes may be
required if the program is not achieving desired habitat functions, or
where even with the habitat characteristics and functions originally
targeted, habitat is not supporting population productivity levels
needed to conserve the ESU.
If the responsible agency does not make changes to respond
adequately to the new information, NMFS will publish notification in
the Federal Register announcing its intention to impose take
prohibitions on activities associated with that program. Such an
announcement will provide for a comment period of not less than 30
days, after which NMFS will make a final determination whether to
extend all ESA section 9 take prohibitions to the activities.
Issue 5: Coordination with United States Fish and Wildlife Service
(FWS)
This proposed rule applies only to listed salmonids under NMFS'
jurisdiction. However, as it evaluates any program against the criteria
in this rule to determine whether the program is covered under a
limitation on take prohibitions, NMFS will coordinate closely with the
appropriate FWS office.
Summary of Take Limitations Proposed in This Rule
1. Permit/ESA Limit on the Take Prohibitions
This limit on the ESA section 9 take prohibitions recognizes that
those holding permits under section 10 of the ESA or coming within
other exceptions under the ESA are free of the take prohibitions so
long as they are acting in accord with the permit or applicable law.
Examples of activities for which a section 10 permit may be issued are
research or land management activities associated with a habitat
conservation plan.
2. Continuity of Scientific Research Take Limit
This limit on the take prohibitions would not restrict ongoing
scientific research activities affecting listed CCV Spring-run chinook;
CC chinook; and NC steelhead for up to 6 months after its effective
date, provided that an application for a permit for scientific purposes
or to enhance the conservation or survival of the species is received
by the Assistant Administrator for Fisheries, NOAA (AA), within 30 days
from the effective date of a final rule. This take limit would not be
applied to the CCC coho salmon because the ESA section 9 take
prohibitions have been in place for this ESU since 1996; therefore,
sufficient time has elapsed for entities to obtain section 10
scientific research permits. The ESA section 9 take prohibitions would
extend to these activities upon the AA's rejection of the application
as insufficient, upon issuance or denial of a permit, or 6 months from
effective date of any final rule, whichever occurs earliest. It is in
the interest of salmonid conservation not to disrupt ongoing research
and conservation projects, some of which are of long-term duration.
This limit on the take prohibitions assures there will be no
unnecessary disruption of those activities, yet provides NMFS with
tools to halt the activity through denial of a permit if the research
is judged to have unacceptable impacts on a listed ESU. For these
reasons, NMFS does not find imposition of additional Federal
protections in the form of take prohibitions necessary and advisable.
3. Limit on the Take Prohibitions for Rescue and Salvage Actions
This limit on the take prohibitions applies to all four threatened
ESUs covered by this proposed rule and would relieve certain agency and
official personnel or their designees from the take prohibition when
they are acting to aid an injured or stranded
[[Page 43157]]
salmonid, or to salvage a dead individual for scientific study. Each
agency acting under this limitation must annually report to NMFS the
numbers of fish handled and their status. This limit on the take
prohibitions will result in conservation of the threatened salmonid
ESUs by preserving life or furthering our understanding of the species.
By the very nature of the circumstances that trigger these actions (the
listed fish is injured or stranded and in need of immediate help, or is
already dead and may benefit the species if available for scientific
study), NMFS concludes that imposition of additional Federal
protections through a take prohibition is not necessary and advisable.
4. Fishery Management Limit on the Take Prohibitions
This take limit would apply to all four threatened ESUs covered by
this proposed rule. NMFS believes that fisheries for non-listed
salmonids and resident game fish species can be managed in a manner
that protects listed salmon and steelhead ESUs and allows them to
recover. Therefore, this proposed rule provides a mechanism whereby
NMFS may limit application of take prohibitions to such fisheries when
a state fishery management agency develops and implements, in
accordance with a letter of concurrence, a NMFS-approved FMEP. Some
benefits of this approach are long-term management planning, more
public involvement, a more streamlined administrative process, and more
certainty that there will be fishing opportunities in the future.
Process for Developing and Approving FMEPs
Prior to determining that a state's new or amended FMEP is
sufficient to eliminate the need for added Federal ESA protection, NMFS
must find that the plan is effective in addressing the criteria
described in the following section. If NMFS finds that an FMEP meets
those criteria, it will approve the plan following public review and
comment on the FMEP and after making any revisions resulting from such
review and comment. NMFS will communicate its approval to the state
fishery agency with a letter of concurrence which will set forth the
terms of the FMEP's implementation and the duties of the parties
pursuant to the FMEP, including monitoring and reporting requirements.
NMFS recognizes the importance of providing meaningful
opportunities for public review of FMEPs. Therefore, prior to approving
new or amended FMEPs, NMFS will make such plans available for public
review and comment for a period of not less than 30 days. Notice of the
availability of these plans will be published in the Federal Register.
Criteria for Evaluating FMEPs
NMFS will approve an FMEP only if it meets the following criteria,
which are designed to minimize and adequately limit take and promote
the conservation of all life stages of threatened salmonids.
Specifically, the FMEP must:
(1) Provide a clear statement of the scope of the proposed action.
The statement must include a description of the proposed action, a
description of the area of impact, a statement of the management
objectives and performance indicators for the proposed action, and
anticipated effects of the proposed action on management objectives
(including recovery goals) for affected populations. This information
will provide objectives and indicators by which to assess management
strategies, design monitoring and evaluation programs, measure
management performance, and coordinate with other resource management
actions in the ESU.
(2) Identify populations within affected listed ESUs, taking into
account: (A) spatial and temporal distribution; (B) genetic and
phenotypic diversity; and (C) other appropriate identifiable unique
biological and life history traits, as discussed under Issue 2.
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 and
describe how such units are defined such that they are consistent with
the principles discussed under Issue 2.
(3) Utilize the concepts of viable and critical salmonid population
thresholds, consistent with the concepts contained in NMFS' ``Viable
Salmon Populations and the Recovery of ESUs'' technical report (NMFS,
2000b), for any population or management unit intended to be managed
separately within the ESU.
Proposed management actions must recognize the significant
differences in risk associated with these two thresholds and respond
accordingly in order to minimize the risks to the long-term
sustainability of the population(s). Harvest actions impacting
populations that are functioning at or above the viable threshold must
be designed to maintain the population or management unit at or above
that level. For populations shown with a high degree of confidence to
be above critical levels but not yet viable, harvest management must
not appreciably slow the population's achievement of viable function.
Harvest actions impacting populations that are functioning at or below
critical threshold must not appreciably increase the genetic and
demographic risks facing the population and must be designed to permit
the population's achievement of viable function, unless the plan
demonstrates that such an action will not appreciably reduce the
likelihood of survival and recovery of the ESU as a whole despite any
increased risks to the individual population.
(4) Set escapement objectives or maximum exploitation rates for
each management unit or population based on its status, and a harvest
program that assures not exceeding those rates or objectives. Maximum
exploitation rates must not appreciably reduce the likelihood of
survival and recovery of the listed ESU. Management of fisheries where
artificially propagated fish predominate must not compromise the
management objectives for commingled naturally spawned populations
(those supported primarily by natural production) by reducing the
likelihood that those populations will maintain or attain viable
functional status, or by appreciably slowing attainment of viable
function.
(5) Display a biologically based rationale demonstrating that the
harvest management strategy will not appreciably reduce the likelihood
of survival and recovery of the listed ESU. The effects must be
assessed over the entire period of time the proposed harvest management
strategy would affect the population, including effects reasonably
certain to occur after the proposed action ceases.
(6) Include effective monitoring and evaluation programs to assess
compliance, effectiveness, and parameter validation. At a minimum,
harvest monitoring programs must collect catch and effort data,
information on escapements, and information on biological
characteristics such as age, fecundity, size and sex data, and
migration timing.
(7) Provide for the evaluation of monitoring data and any needed
revisions of assumptions, management strategies, or FMEP objectives
based on monitoring data that is collected.
(8) Provide for effective enforcement and education. Coordination
among involved jurisdictions is an important element in ensuring
regulatory effectiveness and coverage.
(9) Include restrictions on resident and anadromous species
fisheries that
[[Page 43158]]
minimize any take of listed fish, including time, size, gear, and area
restrictions.
5. Artificial Propagation Limit on the Take Prohibitions
This take limit would apply to all four threatened ESUs covered by
this proposed rule. NMFS believes that artificial propagation, or
hatchery programs can be managed in a manner that conserves and
recovers listed salmon and steelhead ESUs, including the use of listed
salmonids as hatchery broodstock, as long as the programs are managed
in accordance with specific criteria. Under such circumstances, NMFS
believes it is not necessary and advisable to prohibit the take of
listed ESUs in conjunction with these programs. This limit on the take
prohibitions proposes a mechanism whereby state or Federal hatchery
managers may obtain assurance that a hatchery and genetic management
program adequately protects and conserves threatened salmon and
steelhead ESUs. In addition, the proposed rule provides a mechanism
whereby NMFS may limit the application of take prohibitions to
broodstock collection.
Under this take limit, the state or Federal agency develops a
Hatchery and Genetic Management Plan (HGMP) containing specific
management measures that will minimize and adequately limit impacts on
listed fish and promote the conservation of the listed ESU. Following
an opportunity for public comment and upon NMFS' approval of the HGMP,
NMFS would provide the state or Federal agency with a letter of
concurrence specifying implementation requirements, including
monitoring and reporting. NMFS believes that with an approved HGMP in
place, additional Federal ESA protection through imposition of take
prohibitions on artificial propagation activities is unnecessary.
Process for Developing Hatchery and Genetic Management Plans
NMFS will evaluate the effectiveness of state or Federal HGMPs by
addressing the criteria described in the following section. If NMFS
determines that the evaluation criteria have been adequately addressed
in the state HGMP, then it will approve the plan following public
comment and any necessary modification, and provide the state agency
with a concurrence letter specifying implementation, monitoring and
reporting requirements. For Federally operated or funded hatcheries, an
ESA section 7 consultation with the Federal agency will achieve this
purpose and that ensure implementation, monitoring and reporting
requirements are met.
NMFS recognizes the importance of providing meaningful
opportunities for public review of draft HGMPs. Therefore, prior to
approving new or amended HGMPs, NMFS will make such plans available for
public review and comment for a period of not less than 30 days. Notice
of the availability of such draft plans will be published in the
Federal Register.
Criteria for Evaluating Hatchery and Genetic Management Plans
NMFS will evaluate salmonid HGMPs on the basis of criteria that are
designed to minimize and adequately limit take and promote the
conservation of the listed species. The criteria by which draft HGMPs
will be evaluated include the following:
(1) Goals and Objectives for the Propagation Program. Each hatchery
program HGMP must have clearly stated goals, performance objectives,
and performance indicators that indicate the purpose of the program,
its intended results, and measurements of its performance in meeting
those results. Goals should address whether the program is intended to
meet conservation objectives, 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.
(2) The HGMP utilizes the concepts of viable and critical salmonid
population threshold, consistent with the concepts contained in NMFS'
technical document report entitled: ``Viable Salmonid Populations and
the Recovery of ESUs'' (NMFS, 2000b). Listed salmon or steelhead may be
taken for broodstock purposes only if: (A) the donor population is
currently at or above viable thresholds and the collection will not
impair the population's function, (B) the donor population is not
currently viable but the sole current objective of the collection
program is to enhance the propagation or survival of the listed ESU; or
(C) the donor population is shown with a high degree of confidence to
be above critical threshold but not yet viable, and the collection will
not appreciably slow the attainment of viable status for that
population.
(3) The HGMP considers the health, abundance and trends in the
donor population in establishing broodstock collection priorities. The
primary purpose of broodstock collection of listed salmon or steelhead
is to reestablish indigenous 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 salmonid ESU conservation needs are met and
when consistent with survival and recovery of the listed ESU,
broodstock collection programs may be authorized by NMFS for secondary
purposes such as to sustain tribal, recreational or other fisheries.
(4) 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.
(5) The HGMP evaluates, minimizes and accounts for the artificial
propagation program's genetic and ecological effects on natural
populations, including disease transfer, competition, predation, and
genetic introgression caused by straying of hatchery fish.
(6) 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 ESUs.
HGMPs for programs whose purpose is to sustain fisheries must not
compromise the ability of FMEPs or other management plans to achieve
management objectives for associated listed populations.
(7) Adequate artificial propagation facilities exist to properly
rear progeny of naturally spawned and listed broodstock to maintain
population health, maintain population diversity, and to avoid
hatchery-influenced selection or domestication.
(8) Adequate monitoring and evaluation exist to detect and evaluate
the success of the hatchery program and any risks potentially impairing
recovery of the listed ESU.
Take of Progeny Resulting from Hatchery/Naturally-Spawned Crosses
NMFS' ``Interim Policy on Artificial Propagation of Pacific Salmon
Under the Endangered Species Act,'' (58 FR 17573, April 5, 1993)
provides guidance on the treatment of hatchery stocks in the event of a
listing. Under this policy, ``progeny of fish from listed species that
are propagated artificially are considered part of the listed species
and are protected under the ESA.'' According to the interim policy, the
progeny of such hatchery/naturally spawned crosses or naturally
spawned-
[[Page 43159]]
naturally spawned crosses would also be listed.
In its final listing decisions for the CCV Spring-run chinook
salmon, CC chinook salmon and NC steelhead ESUs that are covered by
this proposed rule, NMFS determined that it was not necessary to
consider the artificially propagated progeny of intentional hatchery/
naturally spawned and naturally spawned/naturally spawned crosses to be
listed fish (except in cases where NMFS has listed the hatchery
population as well) when the collection and use of listed fish as
broodstock was part of an approved conservation plan such as an HGMP.
NMFS believes it may be desirable to incorporate naturally spawned
(i.e., listed) fish into hatchery populations in these ESUs to ensure
that their genetic and life history characteristics do not diverge
significantly from the naturally spawned populations; however, prior to
any intentional use of threatened salmon or steelhead for hatchery
broodstock, an approved HGMP must be in place to ensure that native,
naturally spawned populations are conserved.
6. Limits on the Take Prohibitions for Scientific Research
This take limit applies to all four threatened ESUs covered by this
proposed rule. In carrying out their fishery management
responsibilities, the California Department of Fish and Game (CDFG)
conducts or permits a wide range of scientific research activities on
various fisheries, including monitoring and other studies which occur
within the geographic areas occupied by the four threatened salmon and
steelhead ESUs considered in this proposed rule. NMFS finds these
activities: (1) vital for improving our understanding of the status and
risks facing these threatened ESUs, as well as non-listed salmonids and
other species that occur within these geographic areas; and (2) provide
critical information for assessing the effectiveness of current and
future management practices. In general, NMFS concludes such activities
will help to conserve the threatened ESUs considered in this proposed
rule by furthering our understanding of their (and other species) life
history and biological requirements, and that state biologists and
cooperating agencies carefully consider the benefits and risks of
proposed research before approving or undertaking such projects. For
these reasons, NMFS concludes that it is not necessary or advisable to
impose additional protections on such research through imposition of
Federal ESA section 9 take prohibitions.
Research activities that involve the planned sacrifice or
manipulation of salmonids or that will necessarily result in the injury
or death of salmonids in the threatened ESUs considered in this
proposed rule will come within this limitation only if the state
submits an annual report listing all scientific research activities
involving such activities planned for the coming year to NMFS for
review and approval. Such reports shall contain: (1) an estimate of the
total take of threatened salmonids anticipated from such research; (2)
a description of study designs, including a justification for taking
the salmonids; (3) a description of the techniques to be used; and (4)
a point of contact. For this type of research to come within the take
limitation, it must be conducted by employees or contractors of the
CDFG or be part of a coordinated monitoring and research program
overseen by that agency. Any research using electrofishing gear in
waters known or expected to contain listed salmonids from the
threatened ESUs considered in this proposed rule will come within this
take limitation only if it complies with ``Guidelines for
Electrofishing Waters Containing Salmonids Listed Under the Endangered
Species Act'' (NMFS, 2000a). Otherwise, electrofishing research that
will affect listed salmonids will require an ESA section 10 research
permit from NMFS prior to commencing operations.
CDFG must also annually provide NMFS with the results of their
scientific research activities which are directed at the threatened
ESUs considered in this proposed rule, including a report of the amount
of direct take resulting from the research and a summary of the results
of such research.
Research activities conducted by CDFG, or authorized by the CDFG
for non-state entities, that may result in incidental take of listed
salmonids can be covered under this limit in the following manner. CDFG
must submit to NMFS annually, for its review and approval, a report
listing all scientific research activities it conducts or permits that
may incidentally take listed salmonids from the threatened ESUs covered
by this rule for the coming year. In this annual report, CDFG must also
report the amount of incidental take of listed salmonids occurring in
the previous year's scientific research activities, and provide a
summary of the results of such research. Interested parties may request
a copy of these annual reports from NMFS (see ADDRESSES).
7. Habitat Restoration Limits on the Take Prohibitions
This take limit applies to all four threatened ESUs covered by this
proposed rule. NMFS considers a ``habitat restoration activity'' to be
an activity whose primary purpose is to restore natural aquatic or
riparian habitat processes or conditions; it is an activity which would
not be undertaken but for its restoration purpose.
Certain habitat restoration activities are likely to contribute to
conserving listed salmonids without significant risks, and NMFS
concludes that it is not necessary and advisable to impose take
prohibitions on those activities when conducted in accordance with
appropriate standards and guidelines. Projects planned and carried out
based on at least a watershed-scale analysis and conservation plan,
and, where practicable, a sub-basin or basin-scale analysis and plan,
are likely to be the most beneficial. NMFS strongly encourages local
efforts to conduct watershed assessments to identify what problems are
impairing watershed function, and to plan for watershed restoration or
conservation based on that assessment. Without the overview a
watershed-level approach provides, habitat efforts are likely to focus
on ``fixes'' that may prove short-lived, or even detrimental, because
the underlying processes that are causing a particular problem have not
been addressed.
This proposed rule, therefore, provides that ESA section 9(a) take
prohibitions will not apply to habitat restoration activities that are
part of, and conducted pursuant to, a watershed conservation plan that
the State of California has certified is consistent with State
watershed conservation plan guidelines. For this take limitation to
apply to habitat restoration activities contained in a watershed
conservation plan, NMFS must first find the State of California's
watershed conservation plan guidelines will generate plans that: (1)
take into account the potential direct, indirect, and cumulative
impacts of proposed activities on the threatened salmonids affected by
the plan activities; (2) will not reduce the likelihood of either
survival or recovery of listed species in the wild; (3) will ensure
that any taking of threatened salmonids is incidental to the plan
activities; (4) minimize and mitigate any adverse impacts from plan
activities; (5) provide effective monitoring and adaptive management;
(6) use the best available science and technology, including watershed
analysis; (7) provide for public and scientific review
[[Page 43160]]
and input; (8) include any measures that NMFS determines are necessary
or appropriate; 9) include provisions that clearly identify those
activities that are part of plan implementation; and 10) ensure funding
and implementation of the plan components listed here.
Before approving any watershed conservation plan guidelines, NMFS
will publish a notice 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 of not less than
30 days. NMFS will periodically review the state's watershed
conservation plan certifications to ensure they adhere to NMFS'
approved guidelines.
8. Water Diversion Screening Limit on the Take Prohibitions
This take limit applies to all four threatened ESUs covered by this
proposed rule. A widely recognized cause of mortality among anadromous
fish is operation of water diversions without adequate screening.
Juveniles may be entrained or attracted into diversions where they
later die from a variety of causes, including stranding. Adult and
juvenile migration may be impaired by diversion structures, including
push-up dams. Juveniles are often injured and killed through
entrainment in pumping facilities or impingement on inadequate screens,
where water pressure and mechanical forces are often lethal.
State laws and Federal programs have recognized these problems in
varying ways, and have encouraged or required adequate screening of
diversions to prevent much of the anadromous fish loss attributable to
this cause. Nonetheless, many diversions are not adequately screened
and remain a threat, particularly to juvenile salmonids, and
elimination of that source of injury or death is essential to the
conservation of listed salmonids.
For these reasons, this proposed rule encourages all water
diverters to move quickly to provide adequate screening or other
protections for their diversions by not applying ESA section 9 take
prohibitions to any diversion that is screened, maintained, and
operated in accordance with NMFS' Southwest Region Fish Screening
Criteria for Anadromous Salmonids (see ADDRESSES). Compliance with
these criteria will address the problems associated with water
diversions lacking adequate screening. If a diversion is screened,
maintained and operated consistent with these screening criteria, NMFS
concludes that adequate safeguards will be in place such that
imposition of the section 9 take prohibitions is neither necessary or
advisable for the conservation of the threatened salmonid ESUs
considered in this proposed rule. Coverage under this take limitation
requires that NMFS' Southwest Region engineering staff, or any resource
agency or tribal representative NMFS designates as an authorized
officer, agrees in writing that the diversion facility is screened,
maintained, and operated in compliance with the screening criteria.
On a case-by-case basis, this take limitation may be applied in
situations where NMFS' engineering staff (or a NMFS-authorized officer)
have approved a juvenile fish screen design, construction plan, and
schedule that a water diverter proposes for screen installation. Such a
plan must also describe interim operations measures that will reduce
the likelihood of taking the threatened salmonids considered by this
proposed rule. NMFS may require a commitment of compensatory mitigation
if implementation of the plan is terminated prior to its completion. If
the NMFS-approved plan and schedule are not met, or if a schedule
modification is made that is not pre-approved, the water diversion
would be subject to the section 9 take prohibitions.
Under this take limitation, the proposed take prohibitions would
not apply to physical impacts to listed salmonids covered by this rule
due to entrainment or similar impacts of the act of diverting, provided
the diversion facility has been screened according to NMFS criteria and
is being properly maintained. However, this limit does not cover
impacts or take resulting from reduced flows resulting from operation
of the diversion or impacts caused by construction and/or installation
of the diversion structure. Such activities and impacts would be
subject to the proposed take prohibitions.
9. Routine Road Maintenance Limit on the Take Prohibitions
This take limit applies to all four threatened ESUs covered by this
proposed rule. Routine road maintenance activities, in certain
specified circumstances, can be conducted in a manner that will not
further degrade or otherwise restrict attainment of properly
functioning conditions for threatened salmonids. Specifically, NMFS
determined in its July 2000 4(d) rule (65 FR 42422) that routine road
maintenance activities conducted in accordance with the Oregon
Department of Transportation's (ODOT) Maintenance Management System
Water Quality and Habitat Guide (June, 1999) will contribute to the
attainment of properly functioning habitat conditions, and therefore,
the conservation of threatened salmonids. Because the ODOT road
maintenance program was found to contribute to the attainment of
properly functioning habitat conditions and thereby limit impacts on
threatened salmonids and their habitat, NMFS concluded in its July 2000
4(d) rule (65 FR 42422) that application of the section 9 take
prohibitions to these activities was unnecessary for the conservation
of the threatened ESUs covered by that rule.
Under the take limitation in this proposed rule, NMFS does not find
it necessary or advisable to apply the ESA section 9 take prohibitions
to routine road maintenance activities in California provided that: (1)
they are conducted by the employees or agents of the state or any
county, city, or port under a program that complies with a program that
is substantially similar to that contained in the ODOT Guide and has
been determined by NMFS to meet or exceed the protections provided by
the ODOT guide, or that (2) they are conducted by employees or agents
of the State or any county, city, or port in a manner that has been
found by NMFS to contribute to properly functioning habitat conditions
for the threatened salmonid ESUs considered in this proposed rule.
NMFS' determination and approval that any state, city, county, or
port program is equivalent to the ODOT road maintenance program, and,
therefore, qualifies under this take limit, will be in the form of a
written approval by the NMFS Southwest Regional Administrator. Any
jurisdiction desiring its road maintenance program activities to
qualify under this limit based on equivalence to the ODOT program must
have adopted road maintenance guidelines equivalent to or better than
that of the ODOT program and commit in writing to apply those
management practices.
NMFS' determination and approval that any state, city, county, or
port program contributes to the attainment and maintenance of properly
functioning habitat conditions, and, therefore, qualifies under this
take limit, will be in the form of a written approval from the
Southwest Regional Administrator. NMFS' determination in this case will
be based on an assessment of the extent to which the program
contributes to attaining and maintaining properly functioning habitat
conditions. For the purposes of this assessment, NMFS will define
properly functioning habitat conditions as the sustained presence of
natural habitat-forming
[[Page 43161]]
processes that are necessary for the long-term survival of salmonids
through the full range of environmental variation. In order to
contribute to properly functioning habitat conditions, actions that
affect salmonid habitat must not impair habitat that is already
properly functioning, appreciably reduce the functioning of already
impaired habitat, or retard the long-term progress of impaired habitat
toward a properly functioning condition. NMFS will periodically
evaluate an approved road maintenance program to determine its
effectiveness in maintaining and achieving properly functioning habitat
conditions.
Prior to approving any state, city, county or port program under
this take limit, NMFS will publish a notification in the Federal
Register announcing the availability of the program or any revisions to
the program for public review and comment. Such an announcement will
provide for a comment period of not less than 30 days.
10. Municipal, Residential, Commercial and Industrial (MRCI)
Development and Redevelopment Limit on Take Prohibitions
This take limit will apply to all four threatened ESUs covered by
this proposed rule. MRCI development and redevelopment have a
significant potential to injure or kill threatened salmonids or degrade
salmonid habitat in a variety of ways. NMFS believes that with
appropriate safeguards, new MRCI development and redevelopment can be
specifically tailored to minimize impacts on listed salmonids to an
extent that makes additional Federal ESA protections unnecessary for
the conservation of threatened salmonids. In this rule, NMFS has
proposed a mechanism whereby jurisdictions can be assured that
development and redevelopment authorized within their areas avoids or
minimizes impacts and the risk of taking threatened salmonids, and is
thereby consistent with the requirements of the ESA. Both developers
and jurisdictions controlling development would benefit from assurances
that their approvals and development actions contribute to the
conservation of threatened salmonids.
Under this take limitation, NMFS proposes that the ESA section 9
take prohibitions will not be applied to MRCI development and
redevelopment governed by and conducted in accord with city, county, or
regional government ordinances or plans that have been found to
adequately protect the threatened species considered in this proposed
rule. In making a determination whether city, county, or regional
government ordinances or plans adequately conserve threatened salmonids
covered under this proposed rule, NMFS will assess and evaluate whether
the ordinances or plans will contribute to maintaining and restoring
properly functioning habitat conditions. For this assessment, NMFS will
define properly functioning habitat conditions 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. In order to contribute to properly functioning
habitat conditions, activities that affect salmonid habitat must not
impair habitat that is already properly functioning, appreciably reduce
the functioning of already impaired habitat, or retard the long-term
progress of impaired habitat toward a properly functioning condition.
When making an assessment as to whether or not a MRCI development
or redevelopment ordinance or plan adequately conserves threatened
salmonids, NMFS will individually apply 12 evaluation considerations.
Many of these principles are derived from Spence, An Ecosystem Approach
to Salmonid Conservation (NMFS, 1996) and citations therein. NMFS
recognizes that some of these principles require integrated planning
for placement of buildings, transportation or storm water management
and that these 12 considerations will have to be applied in the context
within which the development is addressed in the ordinance or plan. The
12 evaluation considerations are as follows:
(1) The MRCI development or redevelopment ordinance or plan ensures
that development will not take place in inappropriate areas such as
unstable slopes, wetlands, areas of high habitat value, and similarly
constrained sites.
(2) The MRCI development or redevelopment ordinance or plan
adequately avoids stormwater discharge impacts to water quality and
quantity or to stream flow patterns (i.e., hydrograph) in the
watershed, including peak and base flows in perennial streams.
Stormwater management programs should require development activities to
avoid impairing water quality and quantity, and should preserve or
enhance flow patterns so that they mimic historic stream flow patterns
(e.g. peak flows, base flows, durations of flow, volumes and
velocities. This can be accomplished by reducing impervious surfaces
and maintaining natural vegetation cover and soils to the maximum
extent possible.
(3) The MRCI development or redevelopment ordinance or plan
provides adequate protective riparian area management requirements in
order to attain or maintain properly functioning habitat conditions
adjacent to all rivers, streams, intermittent streams, and estuaries.
Where necessary, compensatory mitigation is provided to offset
unavoidable impacts to properly functioning habitat conditions in
riparian habitat areas resulting from MRCI development or
redevelopment.
Limiting development activities in riparian areas helps protect or
restore the condition and quality of soil and ensure that a diversity
of vegetation is well distributed within a riparian area. Such
conditions contribute to natural vegetation succession and help protect
the water quality and flow conditions necessary to meet salmonid
habitat requirements. The available scientific evidence indicates that
the essential habitat functions of the riparian zone are affected to
varying degrees by stream side development activities that occur within
a distance equal to the height of the tallest tree that can grow on
that site. This distance, however, can vary substantially and should be
determined on a site-specific basis which takes into account the
conditions of the site and the type of habitat that may be affected by
the development.
(4) The MRCI development or redevelopment ordinance or plan avoids
stream crossings by road, utilities and other linear development
whenever possible, and where such crossings must be provided, impacts
are minimized. Where crossings are unavoidable, ordinances or plans
should consider minimizing their impacts by indicating a preference for
bridges rather than culverts, and design both bridges and culverts to
pass at least the 100-year flow level and debris associated with a 100-
year flood event. In addition, the ordinance or plan should indicate
that crossings and culverts meet NMFS' Southwest Region Guidelines for
Salmonid Passage at Stream Crossings, May 2000. The ordinance or plan
should also assure that all crossings are regularly monitored and
maintained.
(5) The MRCI development or redevelopment ordinance or plan should
adequately protect historic stream meander patterns and channel
migration zones, and avoid hardening stream banks and shorelines
wherever possible. Development activities should be designed to protect
conditions that allow for gradual bank erosion, flooding, and channel
meandering within the zone where meandering would naturally
[[Page 43162]]
occur. This more natural channel promotes gravel recruitment,
geomorphic diversity, and habitat development. When bank erosion must
be controlled, it should be accomplished through vegetation or
bioengineered solutions wherever possible. Rip-rap blankets or other
hardening techniques should be limited to those situations where
vegetation and bioengineering solutions are not possible.
(6) The MRCI development or redevelopment ordinance or plan should
adequately protect wetlands, wetland buffers, and wetland function.
Protection of wetlands and the vegetation surrounding them will avoid
or minimize soil, vegetation, and hydrology disturbances which can
affect wetland succession and function, and, therefore, salmonid
habitat and food availability.
(7) The MRCI development or redevelopment ordinance or plan
adequately preserves the hydrologic capacity of permanent and
intermittent streams to pass peak flows. Preserving hydrologic capacity
provides conditions on the landscape necessary for maintaining
essential habitat processes such as water quantity and quality, stream
bank and channel stability, groundwater flows, and riparian vegetation
succession.
(8) The MRCI development or redevelopment ordinance or plan
includes adequate provisions for landscaping with native vegetation to
reduce the need for watering and the application of herbicides,
pesticides, and fertilizer. These provisions will maintain essential
habitat processes by helping to conserve water and reduce demands on
instream flows that compete with fish needs. In addition, they will
reduce the amount of chemicals that contribute to water pollution.
(9) The MRCI development or redevelopment ordinance or plan
includes provisions that prevent run-off during and after construction,
thereby preventing sediment and pollutant discharges to streams and
other water bodies that support salmonids. These provisions may include
detention of flow, stabilizing soils, protecting slopes, stabilizing
channels and outlets, protecting drain inlets, controlling pollutants,
and maintaining best management practices.
(10) The MRCI development or redevelopment ordinance or plan
ensures that water supply demands can be met without impacting instream
flows needed for salmonids, and that any new water diversions are sited
and screened in a manner that prevent injury and death of salmonids.
(11) The MRCI development or redevelopment ordinance or plan
includes mechanisms to ensure that funding, enforcement, implementation
monitoring, and reporting occur as the ordinance or plan is
implemented, and that the ordinance or plan is re-evaluated at least
once every 5 years.
(12) The MRCI development or redevelopment ordinance or plan
demonstrates that it is in compliance with all other state and Federal
environmental and natural resource laws and permits.
NMFS' determination that city, county, or regional jurisdictional
MRCI development or redevelopment ordinances or plans contribute to the
attainment and maintenance of properly functioning habitat conditions,
and thereby fall within this take limitation, will be in the form of a
written approval from the Southwest Regional Administrator. As a
condition of approval and to continue within this take limitation,
city, county, or regional jurisdictions with approved ordinances or
plans must provide NMFS with annual reports regarding the
implementation and effectiveness of the ordinances or plans. NMFS will
review these reports and evaluate approved ordinances or plans for
their effectiveness in maintaining and achieving habitat conditions and
function that provide for the conservation of threatened salmonids. As
necessary, NMFS will work with the jurisdiction to modify ordinances or
plans to achieve the desired habitat conditions.
Prior to approving a city, county, or regional government ordinance
or plan for development or redevelopment under this take limitation,
NMFS will publish a notification in the Federal Register announcing the
availability of the ordinance or plan for public review and comment.
Such an announcement will provide for a comment period of not less than
30 days.
Public Comments Solicited
NMFS is soliciting comments, information, and/or recommendations on
any aspect of this proposed rule from all concerned parties (see DATES
and ADDRESSES). NMFS will consider all information, comments, and
recommendations received before reaching a final decision on 4(d)
protections for the threatened salmonid ESUs covered in this proposed
rule.
Public Hearings
In a forthcoming Federal Register notification, NMFS will announce
the dates and locations of public hearings on this proposed rule to
provide the opportunity for the public to give comments and to permit
an exchange of information and opinion among interested parties. NMFS
encourages the public's involvement in such ESA matters.
References
A list of references cited in this proposed rule is available upon
request (see ADDRESSES).
Classification
Regulatory Flexibility Act
When an agency proposes regulations, the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601-612) requires the agency to prepare and make
available for public comment an initial regulatory flexibility analysis
(IRFA) that describes the impact of the proposed rule on small
businesses, nonprofit enterprises, local governments, and other small
entities, unless the agency is able to certify that the action will not
have a significant impact on a substantial number of small entities.
The IRFA is to aid the agency in considering all reasonable regulatory
alternatives that would minimize the economic impact on affected small
entities. The RFA was designed to ensure that agencies carefully assess
whether aspects of a proposed regulatory scheme (record keeping, safety
requirements, etc.) can be tailored to be less burdensome for small
businesses while still achieving the agency's statutory
responsibilities.
In accordance with the requirements of the RFA, therefore, NMFS has
prepared an IRFA for this proposed ESA 4(d) rule. The IRFA is available
upon request (see ADDRESSES). A summary of the IRFA follows.
This proposed ESA 4(d) rule has no specific requirements for
regulatory compliance; instead, it essentially sets an enforceable
performance standard (i.e., do not take listed fish) that applies to
all entities and individuals within the ESU unless that activity is
within a carefully circumscribed set of activities on which NMFS
proposes not to impose the take prohibitions. Hence, the universe of
entities reasonably expected to be directly or indirectly impacted by
the prohibition is potentially broad.
The number of entities potentially affected by imposition of the
ESA section 9 take prohibitions contained in the proposed rule is large
and covers a large geographic which includes the Sacramento River basin
in California's central valley, as well as coastal watersheds ranging
from just north of the Russian River to Redwood Creek.
[[Page 43163]]
Activities potentially affecting salmon and steelhead ESUs covered by
the proposed rule are those associated with agriculture, fishing,
hatcheries, mining, heavy construction, highway and street
construction, logging, wood and paper mills, electric services, water
transportation, and other industries. As many of these activities
involve local, state, and Federal oversight, including permitting,
governmental activities from the smallest towns or planning units to
the largest cities may potentially be impacted. The activities of some
nonprofit organizations may also be affected by these regulations.
NMFS examined the potential impact of the regulation on a sector-
by-sector basis. Unavailable or inadequate data leaves a high degree of
uncertainty surrounding both the numbers of entities likely to be
affected, and the characteristics of any impacts on particular
entities. The problem is complicated by differences among entities even
in the same sector as to the nature and size of their current
operations, contiguity to waterways, individual strategies for dealing
with the take prohibitions, etc. Finally, many of the activities that
would be subject to the take prohibitions in the proposed rule are
already subject to the take prohibitions imposed by existing 4(d) rules
that protect other salmonid ESUs utilizing the same habitat. Thus,
determining the incremental cost of this rule would require information
concerning regulated entities' response to previous 4(d) rules, some of
which have been in effect for only a year.
Examination of the geographical aspects of overlapping ESUs, and
consideration of differences in the distribution of the different ESUs
within river systems revealed three subareas composing the geographic
extent of the four ESUs combined. Subarea 1 consists of that area
within which the only change due to the proposed rule would be to allow
more take limitations than are presently allowed by the existing 4(d)
rule for the threatened Central California coast coho salmon ESU. The
section 9 take prohibitions are already in place for this ESU and would
not be changed by the proposed rule.
Subarea 2 consists of that area where the proposed take
prohibitions for the Northern California steelhead and California
coastal chinook ESUs would be superimposed on the existing take
prohibitions for portions of two threatened coho salmon ESUs (Central
California coast and Southern Oregon/Northern California coho ESUs).
Since steelhead are more widely distributed than coho salmon within
watersheds in this region, the proposed take prohibitions are expected
to have some impact on a wide variety of activities.
Subarea 3 consists of that area where the proposed take
prohibitions for Central Valley spring chinook and California coastal
chinook would be superimposed on existing take prohibitions for
threatened steelhead and endangered winter-run chinook salmon ESUs. In
this region only a small variety of activities involving deliberate
take of chinook salmon is expected to be affected.
The largest economic impacts from the proposed rule, therefore, are
expected to occur in subarea 2 which lies almost entirely in Humboldt,
Trinity, Lake, and Mendocino counties. These four counties account for
only 5% of the population and 4% of the personal income from all the
counties that occur within the geographic range of the four ESUs
covered by this proposed rule.
There are no record keeping or reporting requirements associated
with imposition of the take prohibition; therefore, it is not possible
to simplify or tailor record keeping or reporting to be less burdensome
for small entities. However, some programs for which NMFS may in the
future find it is unnecessary to prohibit take because they fall under
one of the proposed take limitations would involve recordkeeping and/or
reporting to support that continuing determination. NMFS has attempted
to minimize any burden associated with these programs.
In formulating this proposed rule, NMFS considered several
alternative approaches which are described in the IRFA. These included:
(1) Enacting a ``global'' ESA 4(d) protective regulation for threatened
species through which NMFS would automatically apply the section 9 take
prohibitions to all threatened species at the time of listing; (2)
enacting ESA 4(d) protective regulations that include the take
prohibitions, but contain no take limits, or only a few limits, on the
application of the take prohibitions for relatively uncontroversial
activities such as fish rescue/salvage; (3) enacting ESA 4(d)
regulations which include the take prohibitions in combination with
detailed prescriptive requirements applicable to one or more sectors of
activity; (4) enacting ESA 4(d) protective regulations similar to the
existing interim 4(d) protective regulations for Southern Oregon/
Northern California coast coho salmon which includes four additional
limitations on the extension of the take prohibitions, for harvest
plans, hatchery plans, scientific research, and habitat restoration
projects, when in conformance with specified criteria; (5) enacting ESA
4(d) regulations similar to the interim rule for Southern Oregon/
Northern California coast coho, but with recognition of more programs
and circumstances in which application of take prohibitions is neither
necessary or advisable, and (6) enacting no ESA 4(d) protective
regulations for the threatened salmonid ESUs. This latter approach
would leave the threatened ESUs without any protection other than
provided by ESA section 7 consultations for actions with some Federal
nexus, and would not be consistent with NMFS' obligation to enact such
protective regulations that are ``necessary and advisable to provide
for the conservation of'' threatened salmon and steelhead.
The approach taken in this proposed rule is alternative 5 which
would impose the section 9 take prohibition and also create 10 limits
to the take prohibitions for specific circumstances or categories of
activity (see discussion of take limitations in this proposed rule).
This approach is fundamentally the same as that taken in NMFS's July
2000 4(d) rule for 14 threatened salmonids (65 FR 42422). For several
of these activity categories (i.e., recreational harvest, artificial
propagation, habitat restoration, road maintenance, and municipal,
residential, commercial and industrial development) the regulation is
structured so that it allows plans or programs developed after
promulgation of the rule to be submitted to NMFS for review and
approval under criteria described in the rule.
All of the other alternatives which provide take prohibitions for
the threatened ESUs, may result in unnecessary impacts on economic
activity of small entities, given NMFS' judgment that more limited
protections would suffice to conserve the species. NMFS believes the
proposed rule provides the greatest latitude for individual entities
and regulatory agencies to tailor activities and programs to fit
individual circumstances while avoiding or minimizing take of
threatened salmonids. At present, NMFS concludes that there are no
legally viable alternative rules that would have less impact on small
entities and still fulfill the agency's obligations to protect these
threatened salmonid ESUs.
If the proposed rule or any of the other alternatives described in
the IRFA will impact your economic activity, please comment on whether
there is a preferable alternative (including any alternatives not
described herein) that would meet the statutory requirements
[[Page 43164]]
of ESA section 4(d). Please describe the impact that the alternative
would have on your economic activity and why the alternative is
preferable.
Executive Order (E.O.) 12866
Pursuant to E.O. 12866 (58 FR 51735, October 4, 1993), NMFS has
prepared a draft Regulatory Impact Review (RIR) which considers costs
and benefits of the ESA 4(d) regulatory alternatives that were
considered, including the approach taken in this proposed rule. Copies
of the draft RIR are available for review and comment upon request (see
ADDRESSES).
Costs and benefits of the proposed rule and other alternative rule
making approaches 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. The benefit provided by the
proposed rule, as well as each of the 4(d) alternatives considered by
NMFS which affords sufficient protection for the threatened ESUs, is
its contribution to the recovery of the threatened ESUs. No precise
measure of the benefit of recovery is available. NMFS is requesting
comments and information (e.g. data sets, studies) that will enable
quantification of the benefits of the proposed rule.
Many of the costs of recovering the ESUs addressed by the proposed
rule (or alternatives that afford equal protection) are shared jointly
with other listed ESUs that have overlapping geographic distributions
and must also be recovered. It is not possible to determine what share
of these joint costs is attributable to adoption of the take
prohibitions which are in the proposed rule and the alternatives. NMFS
is requesting comments and information (e.g. data sets, studies) that
will enable disentangling and quantification of the costs of the
proposed rule.
Because the proposed rule would limit application of the section 9
take prohibition to those State or local programs or activities that
fall within defined take limit criteria, those programs will contribute
to the conservation of the threatened ESUs covered by the rule and
NMFS' involvement will be more collaborative and less often require
enforcement actions. This approach 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 the State or region will
aid citizens in reducing the risks of take in an efficient way. For
these reasons, it is likely that the proposed rule will minimize the
cost to the public of avoiding or minimizing take over the long term
among the alternatives considered.
In order to assess the economic effect of this rule, NMFS is
seeking to assess the economic effects of the imposition of the take
prohibitions contained in the July 2000 4(d) rule. This rule became
effective on September 8, 2000, and January 8, 2001 for the steelhead
and salmon ESUs respectively, covered by that rule.
In the absence of 4(d) rules, NMFS provided ESA coverage through
section 10 research, enhancement, and incidental take permits with
private entities, or through section 7 consultation with Federal
agencies. Since implementation of the July 2000 4(d) rule NMFS has
received plans from various entities in Oregon, Washington, Idaho and
California for approval under the limits to the take prohibitions.
States can now send a list of research activities they expect to
authorize for the following year instead of sending individual section
10 applications. During promulgation of the July 2000 rule NMFS did not
have a complete understanding of the economic impacts entities would
incur as a result of imposition of the take prohibitions. To gain some
insight as to how entities may have changed their activities in
response to implementation of the take prohibitions, we have summarized
the numbers of plans submitted and their status under the July 4(d)
rule in the following table. While portions of these plans were
developed independently of the July 4(d) rule, they may have been
modified in order to qualify for the take limits of the rule, as
opposed to undergoing ESA section 7 or 10 procedures. Authorization
under the rescue/salvage limit, City of Portland, Oregon Parks and
Recreation Department's Pest Management Program and Washington's Forest
Practices became effective September 8, 2000, and January 8, 2001, for
the steelhead and salmon ESUs respectively, and are not listed in the
table. Oregon Department of Transportation's (ODOT's) Routine Road
Maintenance program also became effective with the effective dates, but
other entities can qualify for ESA coverage under this limit if they
use ODOT's program or an equivalent program.
------------------------------------------------------------------------
Number Number Number of
of Plans of Plans Number Plans
Limit Received Pending of Plans Expected in
to Date Approval Approved Next Year
------------------------------------------------------------------------
Research 3 0 3 4 yearly
(Oregon
Washington
Idaho,
California)
Fishery Management Plans 13 12 1 33
Hatchery Genetic Management 9 9 0 61
Plans
Joint State/Tribal Plans 2 0 2 12
Habitat Restoration 0 0 0 4
Activities
Diversion Screening 20 2 0 100
Oregon Department of 0 0 0 7-10
Transportation's (ODOT's)
Routine Road Maintenance or
Equivalent Plan
Municipal, Residential, 0 0 0 10
Commercial, and Industrial
Plans
------------------------------------------------------------------------
Entities that are now subject to the July 4(d) rule fall into 4
categories: (1) Those entities who have sought or are actively seeking
ESA coverage via the July 4(d) rule limits; (2) those who are not sure
if their activities will harm
[[Page 43165]]
salmonids, but are seeking guidance from NMFS; (3) those who are
actively seeking ESA coverage via the section 10 or section 7 process;
and (4) those entities that are taking salmon but are not seeking ESA
coverage.
NMFS believes that among the alternative regulatory approaches that
were considered, the approach taken in this proposed rule will be the
least costly.
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 proposed 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 proposed rule.
Nonetheless, NMFS intends to inform potentially affected tribal
governments and solicit their input on the proposed rule. NMFS will
continue to give careful consideration to all written and oral comments
received on the proposed rule and will continue its coordination and
discussions with interested tribes as the agency moves forward toward a
final 4(d) 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 proposed rule. In fact, this
proposed rule provides a mechanism by which NMFS may defer to state and
local government programs, where they provide necessary protections for
threatened salmonids.
NMFS' July 2000 4(d) rule for 14 threatened salmonids (65 FR
42422), including three steelhead ESUs in California, was the first
instance in California where the agency defined some reasonably broad
categories of activities, both public and private, for which take
prohibitions were not considered necessary and advisable when specified
criteria were met. Since that rule was promulgated, NMFS has engaged in
discussions with various State and local agencies and other
organizations in California wishing to pursue development of programs
that would qualify under the various take limits contained in that
final rule. In addition, NMFS has sought working relationships with
other governmental and non-governmental organizations, and endeavored
to promote use of the 4(d) rule. Because some of the threatened ESUs
addressed in this proposed rule overlap with the ESUs addressed in the
July 2000 4(d) rule (65 FR 42422), working relationships have already
been established with many agencies and organizations that will be
affected by this proposed rule.
In addition to these efforts, NMFS staff have given 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 staff have met with them whenever possible.
Lastly, NMFS staff have continued coordination with CDFG aimed at
developing recreational fisheries and artificial propagation management
plans and other programs that will be protective of threatened
salmonids and ultimately may be recognized within the July 2000 rule or
this 4(d) 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 Paperwork Reduction Act (PRA), unless that
collection of information displays a currently valid Office of
Management and Budget (OMB) control number. This proposed rule contains
additional collection-of-information requirements subject to review and
approval by OMB under control number 0648-0399. These requirements have
been submitted to OMB for approval.
The public reporting burden per response for these collections of
information is estimated to average 5 hours for a submission on
screening of a water diversion 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.
This proposed rule also contains a collection-of-information
requirement associated with habitat restoration activities conducted
under watershed plans that has received PRA approval from OMB under
control number 0648-0230. The public reporting burden for the approval
of Watershed Plans is estimated to average 10 hours.
These estimates include any time required for reviewing
instruction, searching existing data sources, gathering and maintaining
the data needed, and completing and reviewing the collection-of-
information.
Public comment is sought regarding whether this proposed
collection-of-information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection, including
the use of automated collection techniques or other forms of
information technology. Send comments on these or any other aspects of
the collection of information to NMFS (see ADDRESSES), and to OMB at
the Office of Information and Regulatory Affairs, Office of Management
and Budget, Washington, DC. 20503 (Attention: NOAA Desk Officer).
Comments must be received by October 1, 2001.
National Environmental Policy Act
NMFS prepared Environmental Assessments (EAs), as defined under the
authority of the National Environmental Policy Act (NEPA) of 1969,
addressing each threatened ESU covered by this proposed rule. Based on
a review and evaluation of the information contained in the EA, NMFS
has determined that the proposal to promulgate protective regulations
for four threatened salmonid ESUs, including the creation of
limitations 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 believes these EAs
examined appropriate alternatives, and that preparation of an
Environmental Impact Statement is not required. Copies of the EAs are
available on request (see ADDRESSES).
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
[[Page 43166]]
Dated: August 10, 2001.
Bruce. C. Morehead,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 223 is
proposed to be amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 223 continues 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. In Sec. 223.203, paragraphs (a), (b)(1), and (c) are revised and
introductory text to this section, paragraphs (b)(14) through (b)(22),
and Appendix A to this section are added to read as follows:
Sec. 223.203 Anadromous fish.
Available guidance documents cited in the regulatory text are
listed in Appendix A to this section.
(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)(22), 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
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)(22).
* * * * *
(14) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(20) through
(a)(22) 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 [90 days after date of publication of the final rule in the
FEDERAL REGISTER]. The prohibitions of paragraph (a) of this section
apply to these activities upon the AA's rejection of the application as
insufficient, upon issuance or denial of a permit, or [8 months after
date of publication of the final rule in the FEDERAL REGISTER],
whichever occurs earliest.
(15) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(3), and
(a)(20) through (a)(22) do not apply to any employee or designee of
NMFS, the United States Fish and Wildlife Service, any Federal land
management agency, the 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.
(16) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(3), and
(a)(20) through (a)(22) 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 NMFS's
technical report entitled ``Viable Salmonid Populations and the
Recovery of ESUs'' (NMFS, 2000b). This report 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
[[Page 43167]]
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 the NMFS' Southwest Regional
Administrator. 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
the program is deficient, 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 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' Southwest Region web site (http://swr.nmfs.noaa.gov).
(v) The prohibitions of paragraph (a) of this section relating to
threatened species listed in Sec. 223.102 (a)(20) do not apply to
fishery harvest activities managed solely by the State of California
until [180 days after date of publication of the final rule in the
FEDERAL REGISTER].
(17) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(3) and
(a)(20) through (a)(22) 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 is 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 NMFS'
technical report entitled: ``Viable Salmonid Populations and Recovery
of ESUs'' (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) Broodstock collection programs reflect appropriate priorities
taking into account health, abundances, and trends in the donor
population. The primary purpose of broodstock collection programs of
listed species is to re-establish 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 for
secondary purposes such 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 those programs of which the purpose is to sustain
fisheries, HGMPs must not compromise the ability of FMEPs or other
management plans to conserve listed salmonids.
(G) The HGMP provides for adequate artificial propagation
facilities to properly rear progeny of naturally spawned broodstock, to
maintain population health and diversity, and to avoid hatchery-
influenced selection or domestication.
(H) The HGMP provides for adequate monitoring and evaluation 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
[[Page 43168]]
section 7 consultation will achieve this purpose.
(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 consistency 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 an HGMP shall be a written approval by NMFS'
Southwest Regional Administrator.
(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, NMFS will identify to the responsible agency 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 not 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 program. A template for developing HGMPs is
available from NMFS Northwest Region's web site (www.nwr.noaa.gov).
(vii) The prohibitions of paragraph (a) of this section relating to
threatened species listed in Sec. 223.102 (a)(20) do not apply to
artificial propagation programs managed solely by the State of
California until [180 days after date of publication of the final rule
in the FEDERAL REGISTER].
(18) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(3) and
(a)(20) through (a)(22) do not apply to scientific research activities
provided that:
(i) Scientific research activities involving purposeful take are
conducted by employees or contractors of CDFG or as a part of a
monitoring and research program overseen by or coordinated with CDFG.
(ii) CDFG provides 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) CDFG annually provides 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 CDFG personnel, or are in
accord with a permit issued by the CDFG.
(v) CDFG provides 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' Southwest Regional Administrator.
(19) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(3) and
(a)(20) through (a)(22) do not apply to habitat restoration activities,
as defined in paragraph (b)(19)(iv), provided that the activity is part
of a watershed conservation plan, and:
(i) The watershed conservation plan has been certified by the State
of California 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 that are listed as threatened.
(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 state watershed conservation plan guidelines
under paragraph (b)(19)(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 not less
than 30 days.
(20) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a)(3) and
(a)(20) through (a)(22) 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 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.
[[Page 43169]]
(iii) On a case-by-case basis, NMFS or an Authorized Officer will
review and may approve a juvenile fish screen design 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 the 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 include any impacts or take caused by 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.
(21) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(3) and
(a)(20) through (a)(22) do not apply to routine road maintenance
activities provided that:
(i) The activity results from routine road maintenance conducted by
employees or agents of the State of California, or any county, city or
port in California, that complies with a program substantially similar
to that contained in the Oregon Department of Transportation's (ODOT)
Transportation Maintenance Management System Water Quality and Habitat
Guide (July, 1999) or that is determined to meet or exceed the
protections provided by the ODOT Guide; or by employees or agents of
the State of California or any county, city or port in California that
complies with a routine road maintenance program that meets proper
functioning habitat conditions as described further in paragraph
(a)(21)(ii) of this section. 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' Southwest Regional
Administrator. Any jurisdiction desiring its routine road maintenance
activities to be considered 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 the
State of California, or any city, county, or port, to be consistent
with the conservation of threatened salmonids' habitat when it
contributes 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 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
threatened ESUs. 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. 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 to being within this limit.
(iv) Prior to approving any State of California, city, county, or
port program as being within this limit, or approving any substantive
change in a program as being 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.
(22) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102 (a)(3) and
(a)(20) through (a)(22) 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 threatened species by maintaining or restoring properly
functioning habitat conditions. NMFS approval or determinations about
any MRCI development ordinances or plans shall be a written approval by
the NMFS Southwest Regional Administrator. NMFS will apply the
following 12 evaluation considerations when reviewing MRCI development
ordinances or plans to assess whether they adequately conserve
threatened salmonids by maintaining and restoring properly functioning
habitat conditions:
(A) The 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) The 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) The 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 properly functioning habitat
conditions caused by MRCI development impacts to riparian management
areas.
(D) The MRCI development ordinance or plan avoids stream crossings
by roads, utilities, and other linear development wherever possible,
and, where crossings must be provided, minimizes impacts through choice
of mode, sizing, and placement.
(E) The MRCI development ordinance or plan adequately protects
historical stream meander patterns and channel migration zones and
avoids hardening of stream banks and shorelines.
(F) The MRCI development ordinance or plan adequately protects
wetlands and wetland functions, including isolated wetlands.
(G) The MRCI development ordinance or plan adequately preserves the
[[Page 43170]]
hydrologic capacity of permanent and intermittent streams to pass peak
flows.
(H) The 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) The MRCI development ordinance or plan includes adequate
provisions to prevent erosion and sediment run-off during construction.
(J) The 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) The 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) The 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 threatened salmonids' habitat when it
contributes to the attainment and maintenance of properly functioning
habitat conditions. For this purpose, NMFS defines properly functioning
habitat conditions 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. To
contribute to the attainment and maintenance of properly functioning
habitat conditions, activities 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 achieving properly functioning habitat
conditions. 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
threatened species. 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. Such an announcement will provide for a comment period of not
less than 30 days, after which NMFS will make a final determination
whether to subject the activities to the ESA section 9(a)(1)
prohibitions.
(iv) Prior to approving any city, county, or regional government
ordinances or plans as being within this limit, or approving any
substantive change in an ordinance or plan as being 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.
(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)(3), (a)(5) through (a)(10) and (a)(12) through (a)(22), 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 9(a)(1)(G) of the ESA
with respect to the alleged violation.
* * * * *
Appendix A to Sec. 223.203--List of Guidance Documents
The following is a list of documents cited in the regulatory
text. Copies of these documents may be obtained upon request from
the Northwest or Southwest Regional Administrators (see Table 1 in
Sec. 600.502 of this title).
1. Oregon Department of Transportation (ODOT) Maintenance
Management System Water Quality and Habitat Guide (July, 1999).
2. Guidelines for Electrofishing Waters Containing Salmonids
Listed Under the Endangered Species Act.
3. Fish Screening Criteria for Anadromous Salmonids, National
Marine Fisheries Service, Southwest Region, 1997.
4. Viable Salmonid Populations and the Recovery of
Evolutionarily Significant Units. (June 2000).
[FR Doc. 01-20570 Filed 8-16-01; 8:45 am]
BILLING CODE 3510-22-S