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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XR66

# AGENCY:

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

# ACTION:

Notice of availability and request for comments.

# SUMMARY:

                        Notice is hereby given of the availability of a Routine Road Maintenance Program (RMP) that Clackamas County, Oregon, has submitted pursuant to the Endangered Species Act (ESA). NOAA Fisheries promulgated a protective rule for 14 threatened salmon and steelhead Evolutionarily Significant Units (ESUs). The RMP would affect four ESUs of threatened salmonids identified in the                         **SUPPLEMENTARY INFORMATION**                        . The 4(d) rule provides for limits on ESA take prohibitions for the various activities set out in the rule. The RMP addresses the limit for routine road maintenance activities of any state, city, county or port. This Notice serves to notify the public of the availability of the Clackamas County RMP for review and comment before a final approval or disapproval is made by NOAA Fisheries.                    

# DATES:

                        Written comments on the draft RMP must be received at the appropriate address or fax number (                        *see***ADDRESSES**                        ) no later than 5 p.m. Pacific Standard Time on October 21, 2009.                    

# ADDRESSES:

                        Written comments should be sent to Dr. Anne Mullan, Habitat Conservation Division, National Marine Fisheries Service, 1201 NE Lloyd Blvd, Suite 1100, Portland, Oregon 97232. Comments may also be faxed to (503) 231-6893. Copies of the entire RMP are available online with this title, Best Management Practices for Routine Road Maintenance Application, at:                         *http://www.clackamas.us/​transportation/​library.htm.*                         Comments will not be accepted if submitted via e-mail or the Internet.                    

      ( print page 48058)    

# FOR FURTHER INFORMATION CONTACT:

                        Dr. Anne Mullan at phone number (503) 231-6267, or e-mail                         *anne.mullan@noaa.gov*.                    

# SUPPLEMENTARY INFORMATION:

## Authority

Under section 4 of the ESA, the Secretary of Commerce is required to adopt such regulations as he deems necessary and advisable for the conservation of species listed as threatened. The ESA salmon and steelhead 4(d) rule (65 FR 42422, July 10, 2000) identifies specific categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. The rule further provides that the prohibitions of paragraph (a) of the rule do not apply to activities associated with routine road maintenance provided that a state or local program has been approved by NOAA Fisheries to be in accordance with the salmon and steelhead 4(d) rule (65 FR 42422, July 10, 2000).

## Species Covered in this Notice

                    This notice is relevant to the following five threatened salmon ESUs:Chinook salmon (                    *Oncorhynchus tshawytscha*); threatened Upper Willamette River (UWR), and Lower Columbia River (LCR). Steelhead (                    *Oncorhynchus mykiss*); threatened Upper Williamette River (UWR), threatened Lower Columbia River (LCR). Coho salmon (                    *Oncorhynchus kisutch*); threatened Lower Columbia River (LCR).                

Clackamas County, Department of Transportation and Development, submitted the RMP for routine road maintenance activities that might affect certain salmonid ESUs listed as threatened within the boundaries of Clackamas County. The RMP was designed so that routine road maintenance activities would be protective of salmonids and their habitat.

                    As specified in the July 10, 2000, ESA 4(d) rule for salmon and steelhead (65 FR 42422) under limit 10(i), take prohibitions to threatened species of salmonids do not apply to routine road maintenance activities of a state, county, city or port that complies with a program that is substantially similar to that contained in the Oregon Department of Transportation (ODOT) Routine Road Maintenance Water Quality and Habitat Guide Best Management Practices (Guide, July 1999), and that is determined to meet or exceed the protections provided in the ODOT Guide. NOAA Fisheries may approve a routine road maintenance program of any state, city, county or port that contains management practices that are equivalent to or better than those in the ODOT Guide. Prior to final approval of a routine road maintenance program, NOAA Fisheries must publish notification in the                     **Federal Register**                     announcing the program's availability for public review and comment.                

The Clackamas County RMP submittal includes a cover letter addressed to the Regional Administrator of NOAA Fisheries, and a statement of commitment from Clackamas County to implement the RMP. In Parts 1 through 3, the RMP provides the responsible entity and legal authority for the program and provides a description of the program, including a description of Clackamas County's Riparian Management Areas and their Restricted Area Zones. In Part 2, the RMP provides a description of the geographic area to which the program applies, including an analysis of the environmental baseline of the watersheds of the lower Columbia River and the lower Willamette River within the County boundaries. Part 3 also includes tables that describe various habitat parameters such as culverts that block fish passage, riparian condition, and water quality condition. In Part 4, the RMP describes the listed species distribution and status, referring to distribution maps for steelhead and chinook found in Appendix B. A list of relevant reports is provided in Part 5. In Part 6, the RMP summarizes the training, monitoring, and reporting elements of the RMP and the RMP makes an affirmative conclusion that the program is identical to ODOT's program, referring to Table 5 comparing the two programs.

The RMP defines activities that are routine road maintenance. These consist of maintenance activities that are conducted on currently serviceable structures, facilities, and equipment, involve no expansion of or change in use, and do not result in significant negative hydrological impact. Clackamas County's asserts that their practices are as effective as ODOT's practices at protecting fish and their habitat because they are adopting the ODOT Best Management Practices. They differ only in the width of the Restricted Activity Zones delineated for each river or stream in the area covered by this RMP. These will be 150 feet on each side of the road or stream for Clackamas County's Road Maintenance Program, while ODOT uses a 250 foot width zone to review actions for additional protection. However, as the county road network is much denser, the narrower zones provide comparable protection to the ODOT program. Approval or disapproval of the RMP will depend on NOAA Fisheries' findings after public review and comment.

Dated: September 15, 2009.

Therese Conant,

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

[FR Doc. E9-22655 Filed 9-18-09; 8:45 am]

BILLING CODE 3510-22-S