[Federal Register Volume 65, Number 132 (Monday, July 10, 2000)]
[Rules and Regulations]
[Pages 42422-42481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16933]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



50 CFR Part 223



Endangered and Threatened Species; Salmon and Steelhead; Final Rules

Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 991207324-0148-02; I.D. 081699C]
RIN 0648-AK94


Endangered and Threatened Species; Final Rule Governing Take of 
14 Threatened Salmon and Steelhead Evolutionarily Significant Units 
(ESUs)

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

ACTION: Final rule.

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SUMMARY: Under section 4(d) of the Endangered Species Act (ESA), the 
Secretary of Commerce (Secretary) is required to adopt such regulations 
as he deems necessary and advisable for the conservation of species 
listed as threatened. NMFS now issues a final ESA 4(d) rule adopting 
regulations necessary and advisable to conserve fourteen listed 
threatened salmonid ESUs. This final rule applies the prohibitions 
enumerated in section 9(a)(1) of the ESA to one coho salmon ESU, three 
chinook salmon ESUs, two chum salmon ESUs, one sockeye salmon ESU and 
seven steelhead ESUs. NMFS does not find it necessary and advisable to 
apply the take prohibitions described in section 9(a)(1)(B) and 
9(a)(1)(C) to specified categories of activities that contribute to 
conserving listed salmonids or are governed by a program that 
adequately limits impacts on listed salmonids. This final rule includes 
13 such limits on the application of the ESA section 9(a)(1) take 
prohibitions.

DATES: Effective September 8, 2000. Applicability dates: In 
Sec. 223.203 for the Snake River Basin, Lower Columbia River, Middle 
Columbia River, Upper Willamette River, Central Valley, California, 
Central California Coast, and South-Central California Coast steelhead 
ESUs, this final rule is applicable September 8, 2000. In Sec. 223.203 
for the Snake River spring/summer, Snake River fall, Puget Sound, Lower 
Columbia River and Upper Willamette River chinook, Oregon Coast, 
Central California Coast, and South/Central California Coast coho, Hood 
Canal summer-run and Columbia River chum, and Ozette Lake sockeye ESUs, 
this final rule is applicable January 8, 2001.

ADDRESSES: Branch Chief, NMFS, Northwest Region, Protected Resources 
Division, 525 NE. Oregon St., Suite 500, Portland, OR 97232-2737; 
Regional Administrator, Northwest Region, 7600 Sand Point Way, NE, BIN 
C15700, Building 1, Seattle, WA 98115-0070; Assistant Regional 
Administrator, Protected Resources Division, NMFS, Southwest Region, 
501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; Regional 
Administrator, NMFS, Southwest Region, 501 West Ocean Blvd., Long 
Beach, CA 90802-4213; Salmon Coordinator, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Garth Griffin at 503-231-2005 or Craig 
Wingert at 562-980-4021.

Electronic Access

    Reference materials regarding this rule can also be obtained from 
the internet at www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    On August 18, 1997, NMFS published a final rule listing the Snake 
River Basin (SRB), Central California Coast (CCC), and South/Central 
California Coast (SCCC) steelhead (Onchorynchus mykiss) ESUs as 
threatened species under the ESA (62 FR 43937). On March 19, 1998, NMFS 
published a final rule listing the Lower Columbia River (LCR) and 
Central Valley, California (CVC) steelhead ESUs as threatened species 
under the ESA (63 FR 13347). On March 25, 1999, NMFS published a final 
rule listing the Middle Columbia River (MCR) and Upper Willamette River 
(UWR) steelhead ESUs as threatened (64 FR 14517). Those final listing 
documents describe the background of the steelhead listing actions and 
provide summaries of NMFS' conclusions regarding the status of the 
listed steelhead ESUs. On August 10, 1998 (63 FR 42587), NMFS, on 
behalf of the Secretary, published a final rule listing the Oregon 
Coast (OC) ESU of coho salmon (Oncorhynchus kisutch, or O. kisutch) as 
threatened. By a final rule published on March 24, 1999 (64 FR 14308), 
NMFS listed as threatened the Puget Sound (PS), Lower Columbia River 
(LCR) and Upper Willamette River (UWR) ESUs of west coast chinook 
salmon (Oncorhynchus tshawytscha, or O. tshawytscha) in Washington and 
Oregon. By a final rule published on March 25, 1999 (64 FR 14508), NMFS 
listed as threatened the Hood Canal Summer-run (HCS) and Columbia River 
(CR) chum salmon ESUs (Oncorhynchus keta, or O. keta) in Washington and 
Oregon. By a final rule published on March 25, 1999 (64 FR 14528), NMFS 
listed as threatened the Ozette Lake ESU of sockeye salmon 
(Oncorhynchus nerka, or O. nerka) in Washington. Those final rule 
listing notifications describe the background of the listing actions 
and provide a summary of NMFS' conclusions regarding the status of the 
threatened coho, chinook, chum, and sockeye salmon ESUs.
    Section 4(d) of the ESA provides that whenever a species is listed 
as threatened, the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of the species. 
Such protective regulations may include any or all of the prohibitions 
that apply automatically to protect endangered species under ESA 
section 9(a)(1). Those section 9(a)(1) prohibitions, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (including harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect; or to attempt any of these), import or 
export, ship in interstate commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any wildlife species listed as endangered, without written 
authorization. It is also illegal under ESA section 9(a)(1) to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. Section 11 of the ESA provides for civil and 
criminal penalties for violation of section 9 or of regulations issued 
under the ESA.
    Whether section 9(a)(1) prohibitions or other protective 
regulations are necessary and advisable is in large part dependent upon 
the biological status of the species and potential impacts of various 
activities on the species. These threatened species are likely to 
become endangered species within the foreseeable future. Their current 
threatened status cannot be explained by natural cycles in ocean and 
weather conditions. NMFS has concluded that threatened chinook, coho, 
chum, sockeye, and steelhead are at risk of extinction primarily 
because their populations have been reduced by human ``take''. West 
Coast populations of these salmonids have been depleted by take 
resulting from harvest, past and ongoing destruction of freshwater and 
estuarine habitats, hydropower development, hatchery practices, and 
other causes. ``Factors for Decline: A Supplement to the Notice of 
Determination for West Coast Steelhead'' (NMFS, 1996) and ``Factors 
Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 
West Coast Steelhead Factors for Decline Report'' (NMFS, 1998)

[[Page 42423]]

concludes that all of the factors identified in section 4(a)(1) of the 
ESA have played some role in the decline of the species. It is 
necessary and advisable then to apply the ESA section 9(a)(1) 
prohibitions to these listed ESUs, in order to provide for their 
conservation.
    These listings have created a great deal of interest among states, 
counties, and others in adjusting their programs that may affect the 
listed species to ensure they are consistent with salmonid 
conservation. Although the primary purpose of state, local, and other 
programs is generally to further some activity other than conserving 
salmon, such as maintaining roads, controlling development, ensuring 
clean water or harvesting trees, some entities have adjusted one or 
more of these programs to protect and conserve listed salmonids. NMFS 
believes that with appropriate safeguards, many such activities can be 
specifically tailored to minimize impacts on listed threatened 
salmonids to an extent that makes additional Federal protections 
unnecessary for conservation of the listed ESU.
    NMFS, therefore, proposes a mechanism whereby entities can be 
assured that an activity they are conducting or permitting is 
consistent with ESA requirements and avoids or minimizes the risk of 
take of listed threatened salmonids. When such a program provides 
sufficient conservation for listed salmonids, NMFS does not find it 
necessary and advisable to apply ESA section 9(a)(1) take prohibitions 
to activities governed by those programs. In those circumstances (see 
descriptions to follow), additional Federal ESA regulation through 
imposing the take prohibitions is not necessary and advisable because 
it would not enhance the conservation of the listed ESUs. In fact, 
declining to apply take prohibitions to such programs likely will 
result in greater conservation gains for a listed ESU than would 
blanket application of section 9(a)(1) prohibitions, through the 
program itself and by demonstrating to similarly situated entities that 
practical and realistic salmonid protection measures exist. NMFS will 
monitor the activities under a program where NMFS has granted a 
``limit'' on the application of the ESA take prohibitions for 
unexpected harm, as well as for harmful activities resulting in take 
that do not obey the requirements of the limit and, therefore, are 
subject to NMFS ESA enforcement. An additional benefit of this approach 
is that NMFS can focus its enforcement efforts on activities and 
programs that have not yet adequately addressed the conservation needs 
of listed ESUs.

Substantive Content of Final Regulation

    NMFS had previously proposed protective regulations for three of 
the salmonid ESUs subject to this final rule. When NMFS first proposed 
the Oregon Coast coho for listing (60 FR 38026, July 25, 1995), it 
proposed to apply the prohibitions of ESA section 9(a)(1) to that ESU. 
When NMFS first proposed the LCR and SRB steelhead ESUs for listing (61 
FR 41541, August 9, 1996), it also proposed to apply the prohibitions 
of ESA section 9(a)(1) to those ESUs. These proposed protective 
regulations, however, were never finalized. NMFS has since proposed 
application of the section 9(a)(1) prohibitions for seven listed 
steelhead ESUs (64 FR 73479, December 30, 1999), and seven listed 
salmonid ESUs (65 FR 170, January 3, 2000). This final rule applies the 
prohibitions of ESA section 9(a)(1) to all 14 listed ESUs.
    NMFS concludes that the prohibitions generally applicable for 
endangered species are necessary and advisable for conservation of 
these listed ESUs. Additionally, NMFS determines that section 9(a)(1) 
prohibitions on listed salmonids in the 14 listed ESUs need not be 
applied when it results from a specified subset of activities described 
herein. These are activities that are conducted in a way that 
contributes to conserving the listed ESUs and where NMFS determines 
that added protection through Federal regulation is not necessary and 
advisable for conservation of an ESU. Therefore, NMFS will now apply 
ESA section 9(a)(1) prohibitions to these 14 threatened salmonid ESUs, 
but will not apply the take prohibitions to the 13 programs described 
in this document as meeting that level of protection. Of course, the 
entity responsible for any habitat-related programs might equally 
choose to seek an ESA section 10(a)(1)(b) permit, or be required to 
satisfy ESA section 7 consultation if Federal funding, management or 
approval is involved. This final rule does not impose restrictions 
beyond those applied in other sections of the ESA, but provides another 
option beyond the section 7 and 10 tools to authorize incidental take.
    Working with state and local jurisdictions and other resource 
managers, NMFS has identified 13 programs and criteria for future 
programs for which it is not necessary and advisable to impose ESA 
section 9(a)(1) prohibitions because they contribute to conserving the 
ESU. Under specified conditions and in appropriate geographic areas, 
these programs and criteria include: (1) activities conducted in accord 
with ESA incidental take authorization; (2) ongoing scientific research 
activities, for a period of 6 months from the publication of this final 
rule; (3) emergency actions related to injured, stranded, or dead 
salmonids; (4) fishery management activities; (5) hatchery and genetic 
management programs; (6) activities in compliance with joint tribal/
state plans developed within United States (U.S.) v. Washington or U.S. 
v. Oregon; (7) scientific research activities permitted or conducted by 
the states; (8) state, local, and private habitat restoration 
activities; (9) properly screened water diversion devices; (10) routine 
road maintenance activities; (11) certain park pest management 
activities; (12) certain municipal, residential, commercial, and 
industrial (MRCI) development and redevelopment activities; and (13) 
forest management activities on state and private lands within the 
State of Washington. The language which follows describes each limit. 
These are programs or criteria for future programs where NMFS will 
limit the application of the section 9(a)(1) prohibitions. More 
comprehensive descriptions of each limit and discussions regarding the 
scientific basis for this final rule are contained in ``A Citizen's 
Guide to the 4(d) Rule'' (NMFS, 2000). In the future, NMFS anticipates 
adding new limits for more activities that are deemed necessary and 
sufficient for the conservation of the species.
    NMFS emphasizes that these limits are not prescriptive regulations. 
The fact of not being within a limit does not mean that a particular 
action necessarily violates the ESA or this regulation. Many activities 
do not affect these species, and thus, need not be included in the 13 
limits listed earlier. The limits describe circumstances in which an 
entity or actor can be certain it is not at risk of violating the take 
prohibitions or of consequent enforcement actions, because the take 
prohibitions would not apply to programs or activities within those 
limits. Jurisdictions, entities, and individuals are encouraged to 
evaluate their practices and activities to determine the likelihood of 
take occurring. NMFS can provide ESA coverage through section 4(d) 
rules, section 10 research and enhancement permits, or incidental take 
permits; or through section 7 consultations with Federal agencies. If 
take is likely to occur, then the jurisdiction, entity or individual 
should modify its practices to avoid take of a threatened species or 
seek protection from potential ESA

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liability through section 7, section 10, or section 4(d) processes.
    Jurisdictions, entities, and individuals are not required to seek 
inclusion in a section 4(d) limit from NMFS. In order to reduce its 
liability, a jurisdiction, entity, or individual may also informally 
comply with a limit by choosing to modify its programs to be consistent 
with the evaluation considerations described in an individual limit. 
Finally, a jurisdiction, entity, or individual may seek to qualify its 
plans or ordinances for inclusion in a limit by obtaining the 4(d) 
limit authorization from the appropriate NMFS Regional Administrator 
(see ADDRESSES).
    NMFS wishes to continue to work collaboratively with all affected 
jurisdictions, entities, and individuals to recognize management 
programs that conserve and meet the biological requirements of 
salmonids, and to strengthen other programs toward conservation of 
listed salmonids. This final rule may be amended to add new limits on 
the take prohibitions, or to amend or delete limits as circumstances 
warrant.
    State, county and local efforts such as Clark, Cowlitz, Kitsap, the 
Puget Sound Tri-County Initiative in Washington state; and the City of 
Portland and Clackamas County in Oregon are working with NMFS to make 
their ordinances and practices fish friendly and to be adopted in 
future 4(d) rulemaking. NMFS also acknowledges the important progress 
being made by Metro, the directly-elected regional government in 
Portland, Oregon. NMFS is enthusiastic about Metro's current planning 
efforts and encourages its progress in regional planning to address 
salmonid conservation.
    NMFS acknowledges, and is participating in, the State of 
Washington's Agricultural, Fish, and Water negotiation process 
currently underway in Washington State. The process currently underway 
is intended to address the requirements of the ESA and the Clean Water 
Act (CWA). The negotiations are designed to address agricultural 
practices and processes including but not limited to: Field Office 
Technical Guides (FOTGs), Comprehensive Irrigation District Management 
Plans (CIDMP), Ditch Maintenance Plans (DMPs) and Pesticide Management 
as needed to comply with ESA and CWA. It is anticipated that completed 
FOTGs, CIDMPs, DMPs, and Pesticide Management, if acceptable to NMFS, 
will be included in future ESA 4(d) rulemaking.
    NMFS strongly encourages comprehensive conservation planning for 
programs at the state level. State level conservation programs can be 
one of the most efficient methods to implement effective conservation 
practices across the board and achieve comprehensive benefits for 
listed fish and their habitats. Other examples of these state-based 
conservation programs include the completed forestry agreement in 
Washington state; ongoing reviews of Oregon and California forestry 
practices; and development of coastal states' shoreline management 
programs. NMFS is working with Washington State Department of Ecology 
on development of a model shoreline program. Alternatively, a local 
jurisdiction seeks inclusion in a limitation of the take prohibition by 
adopting this model program, NMFS expects to address the potential 
``take'' issues associated with the shorelines program through an ESA 
section 7 consultation with the National Ocean Service in the coming 
months. This may obviate the need for a 4(d) limit for shoreline-
related activities under the authority of the Department of Ecology.
    Concurrent with this final rule, NMFS is publishing a final rule 
describing a limit on the section 9(a)(1) prohibitions for actions in 
accord with any tribal resource management plan that the Secretary has 
determined will not appreciably reduce the likelihood of survival and 
recovery of a threatened ESU (published elsewhere in this Federal 
Register issue).
    Following is a section entitled ``Notice of Availability'' which 
lists seven documents referred to in the regulation. The purpose of 
making these documents available to the public is to inform 
governmental entities and other interested parties of the technical 
components NMFS expects to be addressed in programs submitted for its 
review. These technical documents provide guidance to entities as they 
consider whether to submit a program for a 4(d) limit. The documents 
represent several kinds of guidance, and are not binding regulations 
requiring particular actions by any entity or interested party.
    For example, NMFS' Viable Salmonid Policy (VSP) paper referenced in 
the fishery and harvest management limits provides a framework for 
identifying populations and their status as a component of developing 
adequate harvest or hatchery management plans. This rule asks that 
FMEPs and HGMPs ``utilize the concepts of `viable' and `critical' 
salmonid population thresholds, consistent with the concepts contained 
in the [VSP paper].'' Thus, state fishery agencies preparing such 
programs are put on notice of the technical analysis needed to support 
decisions within a program. Similarly, NMFS' Fish Screening Criteria 
explicitly recognize that they are general in nature and that site 
constraints or particular circumstances may require adjustments in 
design, which must be developed with the NMFS staff member, or 
authorized officer, to address site specific considerations and 
conditions. Finally, research involving electrofishing comes within the 
scientific research limit only if conducted in accordance with NMFS' 
Guidelines for Electrofishing. The guidelines recognize that other 
techniques may be appropriate in particular circumstances, and NMFS can 
recognize those as appropriate during the approval process.
    Of the state or local documents referenced in the rules, two 
(Oregon Department of Transportation's (ODOT) road maintenance program 
to govern routine maintenance activities and Portland Parks' integrated 
pest management program) are existing programs already being 
implemented that NMFS has found adequate and made effective as limits. 
Those entities, thus, need no further approval for the programs. Other 
jurisdictions may come within the road maintenance limit if they use 
the ODOT program or provide other practices found by NMFS to be 
equivalent or more protective of salmonids. The State of Washington's 
Forests and Fish Report will not trigger a limit until the Washington 
Board of Forestry adopts regulations that NMFS finds are at least as 
protective as the report. Thus, the report indicates a set of 
conditions that will allow NMFS to approve the limit, but recognizes 
that the Board may design regulations that are not identical to, but 
are at least as protective as, the report language.
    In sum, where the rule cites a document, a program's consistency 
with the guidance is ``sufficient'' to demonstrate that the program 
meets the particular purpose for which the guidance is cited. However, 
the entity or individual wishing a program to be accepted as within a 
particular limit has the latitude to show that its variant or approach 
is, in the circumstances where it will apply and affect listed fish, 
equivalent or better.
    NMFS will continue to review the applicability and technical 
content of its own documents as they are used in the future and make 
revisions, corrections or additions as needed. NMFS will use the 
mechanisms of the rule to take comment on revisions of any of the 
referenced state programs. If any of

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these documents is revised and NMFS relies on the revised version to 
provide guidance in continued implementation of the rule, NMFS will 
publish in the Federal Register a notice of its availability stating 
that the revised document is now the one referred to in the specified 
223.203(b) subsection.

Notice of Availability

    The following is a list of documents cited in the regulatory text 
of this final rule. Copies of these documents may be obtained upon 
request (see ADDRESSES).
    1. Oregon Department of Transportation (ODOT) Maintenance
    Management System Water Quality and Habitat Guide (June, 1999).
    2. City of Portland, Oregon Parks and Recreation Department Pest 
Management Program (March 1997) with Waterways Pest Management Policy 
updated December 1, 1999.
    3. State of Washington, Forests and Fish Report (April 29, 1999).
    4. Guidelines for Electrofishing Waters Containing Salmonids Listed 
Under the Endangered Species Act (NMFS, 2000a).
    5. Juvenile Fish Screen Criteria, National Marine Fisheries 
Service, Northwest Region, Revised February 16, 1995, with Addendum of 
May 9, 1996.
    6. Fish Screening Criteria for Anadromous Salmonids (January 1997).
    7. Viable Salmonid Populations and the Recovery of Evolutionarily 
Significant Units. (NMFS, 2000b).
    Copies of all references, reports, related documents and ``A 
Citizen's Guide to the 4(d) Rule'' (NMFS, 2000) are also available upon 
request (see ADDRESSES).
    The limits on the take prohibitions do not relieve Federal agencies 
of their duty under section 7 of the ESA to consult with NMFS if 
actions they fund, authorize, or carry out may affect listed species. 
To the extent that actions subject to section 7 consultation are 
consistent with a circumstance for which NMFS has limited the take 
prohibitions, a letter of concurrence from NMFS will greatly simplify 
the consultation process, provided the program is still consistent with 
the terms of the limit.

Applicability to Specific ESUs

    In the regulatory language in this final rule, the limits on 
applicability of the take prohibitions to a given ESU are accomplished 
through citation to the Code of Federal Regulations' (CFRs') 
enumeration of threatened marine and anadromous species, 50 CFR 
223.102. For the convenience of readers of this notice, 50 CFR 223.102 
refers to threatened salmonid ESUs through the following designations:
    (a) (1) Snake River spring/summer chinook
    (a) (2) Snake River fall chinook
    (a) (3) Central California Coast coho
    (a) (4) Southern Oregon/Northern California Coast coho
    (a) (5) Central California Coast steelhead
    (a) (6) South-Central California Coast steelhead
    (a) (7) Snake River Basin steelhead
    (a) (8) Lower Columbia River steelhead
    (a) (9) Central Valley, California steelhead
    (a) (10) Oregon Coast coho
    (a) (12) Hood Canal summer-run chum
    (a) (13) Columbia River chum
    (a) (14) Upper Willamette River steelhead
    (a) (15) Middle Columbia River steelhead
    (a) (16) Puget Sound chinook
    (a) (17) Lower Columbia River chinook
    (a) (18) Upper Willamette River chinook
    (a) (19) Ozette Lake sockeye

Summary of Comments in Response to the Proposed Rules

    Between January 10, 2000, and February 22, 2000, NMFS held 25 
public hearings to solicit comments on the proposed ESA 4(d) rules: 7 
in Washington, 8 in Oregon, 3 in Idaho, and 7 in California (64 FR 
73479, December 30, 1999; 65 FR 170, January 3, 2000; 65 FR 7346, 
February 14, 2000; 65 FR 7819, February 16, 2000). During the 65-day 
public comment period, NMFS received 1,146 written comments on the 
proposed rules from Federal, state, and local government agencies; 
Indian tribes; non-governmental organizations; the scientific 
community; and individuals. In addition, numerous individuals provided 
oral testimony at the public hearings.
    Based on these public hearings and comments, NMFS now issues its 
final protective regulations for these 14 salmon and steelhead ESUs. 
The preamble section of this rule refers to the prohibitions of ESA 
section 9(a)(1). In addition to the commonly referred to take 
prohibitions of section 9(a)(1)(B) and 9(a)(1)(C), section 9(a)(1), 
also includes prohibitions on the import, export, sale, delivery, or 
transport in interstate commerce of endangered species. The public 
comments NMFS received almost exclusively focused on the section 9 take 
prohibitions. The following comments and responses, therefore, refer to 
the ``take'' prohibitions of section 9(a)(1)(B) and 9(a)(1)(C), not to 
the other prohibitions described in section 9(a)(1). Accordingly, for 
the rest of this preamble and in the regulation, the term 
``prohibition'' refers to the prohibition of take within the 13 
specified limits.
    New information and a summary of comments received in response to 
the proposed rules are summarized as follows.

Comments and Responses

Take Guidance

    Comment 1: Some commenters stated that a primary focus of the 
proposal was to encourage development of local tailor-made measures 
that protect salmonids and they requested further guidance on how their 
programs could be included in future ESA 4(d) rules.
    Response: Credible local initiatives are indeed needed to help save 
these species, and guidance on how local programs can be included in 
4(d) rules is available in The ESA and Local Governments: Information 
on 4(d) Rules, May 7, 1999. In addition, NMFS staff will be available 
to offer advice and otherwise help individual jurisdictions and 
entities ensure that their actions do not take listed fish.
    Comment 2: Some commenters wanted a simplified process (e.g., a 
``letter of approval'' from NMFS staff) for including local programs in 
future ESA 4(d) rules.
    Response: NMFS worked with state and local authorities to identify 
several categories of activities where local programs can be certified 
to comply with ESA requirements if they meet the conditions described 
in the rule. This simplified process would be available for land-use 
development activities, water diversion screening, road maintenance, 
hatchery operations, fisheries harvest, fisheries related research, and 
habitat restoration activities. Other governmental entities are 
encouraged to step forward and work with NMFS. First, to ensure that 
local programs meet the salmon's biological requirements and the 
mandates of the ESA, and second, to streamline the administration of 
any program.
    Comment 3: A number of commenters stated that the proposed take 
guidance was too vague (e.g., guidance in the limit for new urban 
density development). Others commented that the guidance was too 
prescriptive, and still others stated that the guidance was less 
stringent for some categories of activities and more stringent for 
others.
    Response: To be approved for a limit from ESA take prohibitions, a 
program

[[Page 42426]]

must conserve salmon and meet their biological requirements. This 
criterion is the same for all programs. These species span the entire 
west coast from coastal rainforests to arid inland areas to high 
mountain regions nearly a thousand miles from the ocean and, thus, 
specific requirements will naturally differ from place to place. Some 
jurisdictions have asked for NMFS' help in learning how to avoid or 
limit adverse impacts on these species. General guidance is provided in 
this rule. This final 4(d) rule addresses concerns about vague guidance 
by providing additional specificity and by requiring that once specific 
programs designed to meet NMFS' criteria are produced (and before 
determining whether they are adequate), NMFS will publish the proposed 
program for review and comment.
    Comment 4: Some commenters stated that NMFS must wait to apply take 
prohibitions until more specific guidance is published on how other 
programs can qualify for a limit on the take prohibitions. Others 
requested that NMFS delay take prohibitions until many more local 
programs were ready to be included in an ESA 4(d) rule, or that NMFS 
phase in the take prohibitions as programs qualify for a limit.
    Response: These species are, by definition, likely to become 
endangered in the foreseeable future and undue delay in protecting them 
would likely increase the difficulty and expense of recovering them. At 
the same time, NMFS recognizes these rules are novel and complicated 
and some time is needed for regulated parties to better understand 
them. NMFS has balanced these considerations by adopting a final rule 
that puts needed regulations in place within 60 days for the steelhead 
ESUs and within 180 days for the salmon ESUs, which allows a reasonable 
period before they become effective (6 months).
    Comment 5: A few commenters wanted NMFS to grant a grace period 
from the take prohibitions to those jurisdictions making good faith 
efforts to conserve the species.
    Response: The proposed rule already states that while enforcement 
may be initiated against activities that take protected salmonids, 
NMFS' clear preference is to work with persons or entities to promptly 
shape their programs and activities to include credible and reliable 
conservation measures.
    Comment 6: Some commenters asked NMFS to apply prohibitions against 
take to all programs without exception.
    Response: Any jurisdiction or individual under United States 
authority is subject to the take prohibitions. Jurisdictions or 
individuals wanting assurance that an activity they are conducting or 
permitting is consistent with ESA requirements can be covered under a 
section 7 consultation (if Federal funding, authorization, or 
management is involved), seek an ESA section 10 permit, or qualify for 
a limit under a 4(d) rule. To qualify for any of these options, the 
activity must show that it sufficiently conserves the listed species.
    Comment 7: Some commenters wanted NMFS to define the action types 
and magnitudes that would constitute illegal take. Others held that the 
array of activities described in the proposed rule that are ``likely to 
injure or kill listed salmonids'' was overly inclusive and discussed 
actions that exceeded NMFS' authority to regulate. Still others 
requested that NMFS assert that state and local governments are not 
required to use their regulatory authorities to satisfy ESA 
requirements.
    Response: It is NMFS' policy to increase public awareness of and 
identify those activities that would or would not likely injure or kill 
a protected species. Take guidance appearing at the end of this 
document does just that. It is only possible in this final rule to 
describe categories of actions that may have adverse impacts on fish 
and describe their consequences (e.g., blocking fish from reaching 
their spawning grounds, dewatering incubating eggs, etc.). NMFS 
understands that there is considerable interest in knowing as much as 
possible about what constitutes ``take'' and changes have been 
incorporated in this final rule to accommodate this interest. 
Determining whether an individual local program or activity is likely 
to injure or kill a protected species will require credible assessments 
that take into account local factors and conditions. Regarding the 
issue of authority, regulations against killing or injuring protected 
species apply to any person subject to the jurisdiction of the United 
States (section 9(a)(1) of the ESA). The term ``person'' means an 
individual, corporation, partnership, trust, association, or any other 
private entity; or any officer, employee, agent, department, or 
instrumentality of the Federal Government, of any State, municipality, 
or political subdivision of a State, or of any foreign government; and 
State, municipality, or political subdivision of a State; or any other 
entity subject to the jurisdiction of the United States (ESA section 
3(12)).
    Comment 8: A few commenters requested that NMFS make clear that 
``take'' prohibitions would not be violated unless a protected species 
were injured or killed, and that determinations of whether ``take'' is 
likely to occur will be handled on a case-by-case basis.
    Response: The term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, a listed species or to 
attempt to engage in any such conduct (ESA section 3(18)). The term 
``harm'' refers to an act that actually kills or injures a protected 
species (64 FR 215 (November 8, 1999). Harm can arise from significant 
habitat modification or degradation where it actually kills or injures 
protected species by significantly impairing essential behavioral 
patterns, including breeding, spawning, rearing, migrating, feeding, or 
sheltering. After conducting a self- assessment to determine whether an 
activity is likely to ``take'' a listed species, persons or entities 
may choose to adjust their program to avoid take, or pursue ESA 
coverage through a section 10 permit, a section 7 consultation with 
Federal agencies, or through a 4(d) rule.
    Comment 9: Commenters requested that adequate monitoring and 
oversight be required to ensure that programs included in an ESA 4(d) 
rule are effective.
    Response: A program is incomplete without a mechanism to track its 
implementation and effectiveness. NMFS reiterates language in the 
proposed rule which states that for any program included in an ESA 4(d) 
rule, ``NMFS will evaluate on a regular basis the effectiveness of the 
program in protecting and achieving a level of salmonid productivity 
and/or habitat function consistent with the conservation of the listed 
salmonids.'' If a program does not meet its objectives, NMFS will work 
with the relevant jurisdiction to adjust the program accordingly. If 
the responsible entity chooses not to adjust the program accordingly, 
NMFS will publish notification in the Federal Register and announce 
that the program will no longer be free from ESA take prohibitions 
because it does not sufficiently conserve listed salmonids.
    Comment 10: There were a number of requests for NMFS to grant 
limits on the take prohibitions to additional programs. Examples 
included, the Natural Resources Conservation Service's FOTGs, 
California's Lake and Streambed Alteration Program, Oregon Concrete and 
Aggregate Producer's suggestions for a limit focused on Department of 
Geology regulation, Washington's Tri-County initiative, and

[[Page 42427]]

The Oregon Plan for Salmon and Watersheds.
    Response: The ESA 4(d) rule provides an option for state and other 
jurisdictions to assume leadership for species conservation at the 
state and local level over and above the conventional tools for 
processing state and local conservation planning under the ESA through 
section 7 consultations and section 10 permitting. NMFS is assembling 
all the Federal, tribal, state, and local programs needed to save 
salmonids and has offered to collaborate with any entity interested in 
this 4(d) option. NMFS is especially interested in state-level 
conservation efforts because state-level programs tailored to meet the 
needs of the listed stocks can be a very efficient and comprehensive 
method to provide for the conservation of listed stocks and their 
habitat. A number of state and local entities have stepped forward to 
work with NMFS and we are anxious to work with them. However, limits 
that were not outlined in the proposed rule for public comment will 
have to be dealt with in a future amendment.
    Comment 11: Commenters requested that NMFS clarify that activities 
conducted pursuant to an approved state or Federal permit are free from 
the ESA section 9 take prohibitions.
    Response: Activities conducted pursuant to an approved state or 
Federal permit are subject to take prohibitions. Individual programs 
can seek relief from any take liability through a section 7 
consultation, a section 10 permit process, or a program approved under 
a 4(d) limit.
    Comment 12: Commenters argued that the nature of some programs 
(e.g., road construction, gravel mining, water withdrawals, levee 
construction, and certain development) should disqualify them from 
consideration for limits on take prohibitions under an ESA 4(d) rule.
    Response: Under the proposal, all programs must fulfill the same 
standard to be included in an ESA 4(d) rule (i.e., they must conserve 
the species and meet their biological requirements). The important 
issue here is that threatened salmonids need meaningful, practical, and 
reliable conservation measures. Some programs will naturally have more 
difficulty meeting that standard than others. The ESA 4(d) rule simply 
applies the take prohibitions and allows for the development and 
implementation of conservation measures.
    Comment 13: Several commenters suggested that the use of pesticides 
and herbicides should be considered a resource management tool and, 
therefore, be included as a limit by NMFS in the 4(d) rule. Several 
commenters argued that the proposed take guidance violates the Federal 
Insecticide, Fungicide and Rodenticide Act (FIFRA) and, thereby, 
trespasses unlawfully into Environmental Protection Agency (EPA) 
authorities and violates the take exemption provided for FIFRA-
registered pesticides.
    Response: NMFS acknowledges that some view the current use of 
pesticides as essential to successful commercial crop production on 
agricultural lands, certain types of habitat restoration projects, and 
dealing with invasive exotic species. NMFS does not currently have 
specific information on the potential effects on listed salmonids of 
the very large number of pesticide products currently in use. 
Accordingly, NMFS is not able to conclude that the otherwise lawful use 
of these products is sufficiently benign to warrant an explicit 
limitation of the take prohibition in this rule. NMFS, therefore, has 
not incorporated such a limit.
    For the same reason, NMFS is also unable to make an affirmative 
finding that the otherwise-lawful use of these products may cause harm 
to listed salmonids in potential violation of this final rule.
    NMFS will continue to conduct scientific research into the 
potential for adverse effects upon salmonids of a variety of 
pesticides. NMFS intends to work closely with EPA and state authorities 
which have primary responsibility for ensuring the proper use of these 
products under relevant Federal and state regulatory regimes. Should 
information come forward to suggest that the otherwise lawful use of a 
pesticide harms or injures listed salmonids and might be in violation 
of this rule, NMFS anticipates addressing the concern through a section 
7 consultation with EPA, NRCS, or United States Fish and Wildlife 
Service (FWS) as appropriate, or corresponding discussions with 
responsible state authorities. NMFS prefers this approach rather than 
use its enforcement authorities against an individual applicator for 
the otherwise-lawful use of the pesticide. Similarly, if NMFS, with due 
consideration of any more restrictive state requirements for a 
pesticide's use, finds that a limitation on the prohibition against 
take for the use of selected pesticides is necessary and advisable for 
the conservation of listed salmonids, it may amend this rule 
accordingly. Through such a programmatic approach, NMFS believes that 
it will be able to achieve an orderly and comprehensive analysis of the 
use of pesticides and their effects on listed salmonids.
    Comment 14: A few commenters argued that ESA Habitat Conservation 
Plans (HCPs) should not be free from take prohibitions under a 4(d) 
rule.
    Response: A section 10 incidental take permit (issued after 
analyzing the accompanying habitat conservation plan) authorizes a 
specified level of take. Including incidental take permits in the first 
limit of this rule is, thus, consistent with the structure and intent 
of the ESA.
    Comment 15: A few commenters requested that NMFS prescribe 
standards (temporary or otherwise) for agricultural activities to be 
included in an ESA 4(d) rule.
    Response: Different entities (including agricultural interests) 
have expressed a strong preference for standards developed at the local 
level (not one-size-fits-all standards). The 4(d) rule was written to 
foster local interest and support tailor-made programs and NMFS stands 
ready to work with any interested entity in forging such standards. On 
the issue of agricultural practices in particular, NMFS is working with 
a number of agricultural entities to explore conservation practices 
which might contribute to the conservation of salmonids and their 
habitats, and is hopeful that these discussions will yield further 
details on proper conservation practices to help conserve salmon.
    Comment 16: A few commenters asked NMFS to work closely with FWS to 
clarify each other's roles to establish universal standards that cover 
all listed species.
    Response: The two services do work closely together on ESA 
implementation. For example, NMFS and FWS share identical definitions 
of ``harm'' and the proposed rule does state that ``as it evaluates any 
program against the criteria in this rule to determine whether the 
program warrants a limitation on take prohibitions, NMFS will 
coordinate closely with FWS regional staffs.'' This comment, however, 
is well taken and NMFS will continue to work closely with FWS to 
coordinate and streamline ESA implementation. NMFS notes that it is 
commonly requested to distinguish biological requirements of salmonids 
from biological requirements of other species (some under the 
jurisdiction of FWS).
    Comment 17: Commenters asked NMFS to establish a funding mechanism 
(e.g., an escrow account) to support habitat restoration activities.
    Response: Millions of dollars in Federal funding have been granted 
to

[[Page 42428]]

state programs that fund specific habitat restoration projects. NMFS 
will continue to support funding for these programs in the future.
    Comment 18: Several commenters argued that current conditions are a 
result of past practices, not current practices. They believed that 
NMFS has failed to justify why the little remaining habitat is 
important to listed fish and failed to provide detailed scientific 
rationale to support the agency's contention that certain activities 
(e.g., urban development) result in take.
    Response: NMFS disagrees. The list of examples in this final rule 
(see Take Guidance) as well as those provided in the proposed rule give 
general guidance on the types of current activities that are very 
likely to take threatened salmonids. While not exhaustive, this list 
was based on direct experience with managing salmonid populations in 
their natural environment and a thorough understanding of the 
scientific literature. The ESA listing process for these threatened 
salmonids has documented the decline of salmonid populations in the 
four western states and has identified the historic and current causes 
of these declines. The commenters correctly note that past practices 
have caused the decline of salmonid populations; however, current human 
activity can also kill or injure listed salmonids. Development and 
other human activities within riparian areas or elsewhere in the 
watershed alter the properly functioning condition of riparian areas. 
These activities can alter shading (and hence stream temperature), 
sediment transport and supply, organic litter and large wood inputs, 
bank stability, seasonal streamflow regimes, and flood dynamics. The 
natural functions of riparian areas and the ways in which human 
activities affect those processes and functions are described in the 
publication entitled ``An Ecosystem Approach to Salmonid Conservation'' 
(NMFS, 1996).
    Comment 19: Some commenters requested maps of ``sensitive resource 
sites'' at a large scale so local jurisdictions that deal with small 
land parcels may use them. Some commenters stated that NMFS should 
focus on areas where redds or fish are actually present, not on general 
definitions such as ``spawning gravels.''
    Response: NMFS acknowledges the value of producing maps that 
identify resource sites important for the different salmonid life cycle 
stages. NMFS will continue to work with state entities, local 
jurisdictions, co-managers and citizens to increase our knowledge of 
threatened salmonids. NMFS will also continue to increase its own 
capabilities for mapping resource areas and watersheds. Because there 
were so many comments requesting that NMFS identify which activities 
have a high likelihood of resulting in take and will be priorities for 
enforcement action, the take guidance has been revised to focus on high 
risk activities. The language referring to ``spawning gravels'' has, 
therefore, been removed.
    Comment 20: One commenter requested that NMFS add the word 
``intentional'' to clarify the take guidance regarding promotion of 
predator populations associated with habitat alterations.
    Response: NMFS must respectfully disagree. Whether the action is 
intentional or unintentional, NMFS considers habitat alterations that 
promote predation on listed species to be undesirable. Such actions may 
in fact cause injury or harm to listed salmonids.
    Comment 21: Several commenters recommended adding sediment 
discharge to the list of toxic chemicals and other pollutants that are 
very likely to injure or kill salmonids. Other commenters requested 
that NMFS clarify which chemicals and pollutants it is referring to in 
this section.
    Response: NMFS refers to toxic chemicals or other pollutants being 
discharged or dumped and then gives examples by listing sewage, oil, 
gasoline, and others. Sedimentation from timber harvest and other land 
use activities may plug the interstitial spaces in gravel spawning 
areas reducing salmon egg survival during their incubation period as 
well as many other deleterious effects. Based on these comments and the 
fact that sediment discharge may harm listed salmonids by physically 
disturbing or blocking streambed gravels, NMFS added soil disturbances 
to the list of actions that are likely to kill or injure salmonids.
    Comment 22: One commenter urged NMFS to add language in the 
activity category dealing with the chemical and pollutant discharge or 
dumping to recognize that take can also occur when these activities are 
carried out with a valid permit. Another commenter recommended that 
NMFS clarify which permits are considered ``valid,'' and one commenter 
stated that this potential ``take'' should only apply to waters 
supporting the listed salmonids.
    Response: NMFS agrees that chemical and pollutant discharge may 
take listed fish whether or not there is a valid permit for the 
discharge. In order to clarify this point, NMFS has deleted the words 
``particularly when done outside of a valid permit for the discharge'' 
from the take guidance. Regarding the suggestion that take prohibitions 
should only be applied to waters supporting listed salmonids, the take 
guidance applies throughout the ESU for the listed species whether or 
not there are salmonids present in individual rivers or streams.
    Comment 23: One commenter noted that the introduction of non-native 
species likely to prey upon or displace listed species should be 
expanded to include non-native species that may adversely affect 
salmonid habitat.
    Response: NMFS agrees that non-native species may alter salmonid 
habitat to such an extent that the habitat may no longer provide all 
the functions and characteristics that support listed salmonids. The 
take guidance language now reflects this suggestion.
    Comment 24: Numerous commenters argued for language changes and 
refinements in the descriptions of actions that may injure or kill 
listed salmonids. The first suggestion is to expand the list of ways 
fish passage can be blocked to include human-induced physical, 
chemical, and thermal blockages.
    Response: NMFS has revised the take guidance to address this 
comment and to clarify its enforcement priorities.
    Comment 25: Several commenters suggested adding language to the 
list of activities ``very likely to injure or kill salmonids'' to 
address activities that further contribute to or maintain water quality 
impairments in those water bodies on the 303(d) list of the CWA.
    Response: NMFS agrees that this is an important issue and that 
activities that degrade water quality or maintain degraded conditions 
can injure listed species. This issue is already addressed in the 
section on discharging or dumping toxic chemicals or other pollutants 
into water or riparian areas and in the language changes discussed in 
the previous comment.
    Comment 26: Some commenters urged NMFS to state that water 
withdrawals can affect salmonids in more ways than adversely modifying 
spawning and rearing habitat. One commenter also requested that NMFS 
note that water withdrawals can adversely affect groundwater by 
capturing flow that might otherwise discharge to surface waters.
    Response: NMFS considers ``spawning, rearing, and migrating'' to be 
``essential behavioral patterns.'' The word ``migrating'' will be added 
to the take guidance regarding water withdrawals. Regarding the second 
comment about the potential impact of water withdrawals on groundwater 
and surface water, NMFS cannot provide

[[Page 42429]]

further detail in this take guidance because the actual impacts of a 
given act depend on situation-specific conditions.
    Comment 27: Several commenters asked NMFS to expand the discussion 
of impacts arising from water diversion and flow discharges to include 
impacts other than changes in stream temperature.
    Response: NMFS agrees that water diversions and discharge may have 
other deleterious effects on salmonid habitat. These may include 
impacts on sediment transport, turbidity, and stream flow alterations. 
The actual likelihood that these actions would result in take depends 
on situation-specific conditions. Based on public comments, the take 
guidance in the final rule has been revised to clarify NMFS' intent 
regarding which activities are very likely to injure or kill salmonids 
and to identify priorities for NMFS enforcement action.
    Comment 28: Several commenters recommended moving the topics 
``water withdrawals'' and ``violation of federal or state CWA discharge 
permits'' from the section where actions may injure or kill listed fish 
to the section where actions are ``very likely to injure or kill 
salmonids.''
    Response: NMFS has revised the take guidance. One change is that 
water withdrawals have been added to the list of activities that are 
very likely to injure or kill salmonids. However, the likelihood that 
take will actually occur depends on the individual action. The issue of 
actions that violate Federal and state CWA discharge permits is not 
specifically addressed in the new take guidance language.
    Comment 29: One commenter urged NMFS to consider land use 
activities that affect more than just salmonid habitat. They 
highlighted the fact that adverse effects include impacts on floodplain 
function, natural hydrologic patterns, riparian function, and water 
quality. They also recommended expanding the list of land use 
activities identified in the proposed rule.
    Response: In a section of the preamble of the proposed rule 
entitled Aids for Understanding the Limits on the Take Prohibition, 
under Issue 2: Population and Habitat Concepts, NMFS describes properly 
functioning habitat conditions that create and sustain the physical and 
biological features essential to conserving the species. These habitat 
conditions recognize the importance of floodplain function and channel 
migration and emphasize the dynamic nature of natural systems. NMFS 
intends the term ``salmonid habitat'' to be consistent with the habitat 
functions and processes described in the Habitat Concepts preamble 
language. NMFS recognizes that different types of land use activities 
can impact salmonid habitat to such an extent that take may occur. 
Language has been added to the revised take guidance to address 
floodplain gravel mining and floodplain development.
    Comment 30: Several commenters argued that the take guidance needs 
to be clarified so that the public can understand what NMFS means in 
its different categories of take.
    Response: NMFS agrees that the take guidance language in the 
proposed rule caused confusion about which activities can result in 
take and what actions will be priorities for enforcement. NMFS has 
revised the take guidance section to focus on those activities that are 
very likely to injure or kill salmonids.
    Comment 31: One commenter suggested amending the proposed language 
concerning take due to water withdrawals by using Oregon Department of 
Fish and Wildlife (ODFW) minimum flows to regulate water withdrawals.
    Response: NMFS does not reference specific state, local, or private 
regulations or programs that might prevent take because there is such a 
large number of programs (and partial programs) in the different states 
that could be cited. Absent a program approved under section 7 or 10 of 
the ESA or under this rule, individual jurisdictions and private 
entities will need to develop, adopt, and implement programs that 
prevent take.
    Comment 32: One commenter suggested that NMFS clarify its intent by 
using the language ``actually impact water quality'' in the context of 
take occurring due to violations of Federal or state CWA discharge 
permits.
    Response: NMFS notes the comment. However, due to changes in the 
final rule's take guidance language, this specific category of activity 
has been eliminated.
    Comment 33: Some commenters asserted that rural areas were unfairly 
singled out for engaging in activities that take listed species while 
urban areas were given ESA 4(d) limits.
    Response: NMFS applies the prohibition against take uniformly 
across the landscape encompassed by the threatened species' ESUs. This 
take prohibition applies equally to rural areas and urban areas and the 
take guidance identifies activities that can occur in urban and rural 
areas. Limits on the take prohibitions were given to complete programs 
that were shown to conserve salmon and steelhead.
    Comment 34: One commenter asked that NMFS clarify the relationship 
between take avoidance and the designation of critical habitat.
    Response: Critical habitat is a geographic description of the areas 
essential for a species' conservation. These designations highlight 
important habitat features as well as management actions that may 
require special management considerations. Take avoidance relates to 
critical habitat in that special management actions taken (or 
authorized) by Federal agencies must avoid adversely modifying critical 
habitat.

Viable Salmonid Populations (VSP)

    Comment 35: Several commenters said that NMFS should not base 
policy on a document that is not complete and has not been reviewed in 
its final form.
    Response: Comments on the December 13, 1999, VSP draft were 
solicited from over 50 peer reviewers plus tribal and state co-
managers. In addition, the document has been available for public 
comment since the draft ESA 4(d) rules were released. We have received 
approximately 20 peer and co-manager reviews, plus numerous public 
comments. These reviews, particularly those from peer-reviewers, have 
generally been very positive, and the document will require little 
substantive revision before publication as a NOAA Technical Memorandum 
in June of 2000.
    Comment 36: Several commenters stated that populations are 
generally smaller than a ``distinct population segment'' as defined in 
the ESA and NMFS has ``gone too far'' in proposing protection of 
individual populations.
    Response: In applying the VSP principles, NMFS does not mean to 
require equal protection of every single population. The unit requiring 
protection under the ESA is a ``distinct population segment'' (i.e., 
ESU). Therefore, it is the ESU that NMFS must ensure has a minimal risk 
of extinction. A population is the appropriate biological unit for 
scientifically evaluating salmonid extinction risk. The status of an 
ESU can be determined in large part by analyzing the individual 
populations that constitute the ESU, and determining how their 
individual statuses combine to affect ESU viability.
    Comment 37: Many commenters said that VSP is too vague to be 
implemented.
    Response: Where possible, NMFS has endeavored to provide numerical 
guidelines for viability thresholds. However, VSP generally does not 
provide generic quantitative criteria that can be applied to all 
salmonid populations because the thresholds vary by species and 
location. This means that

[[Page 42430]]

applying the VSP principles will require population- and ESU-specific 
evaluations. This will not be very satisfying to managers looking to 
VSP for ``the answer,'' but is the only scientifically sound course at 
this time. NMFS will continue to explore whether generic guidelines (or 
modeling approaches) may be appropriate for some criteria (e.g., 
minimum population size), but this requires further analysis and will 
not be a part of the VSP paper finalized in June. As geographically-
specific VSP applications are completed, more general numerical 
guidelines may be possible.
    Comment 38: Several commenters noted that NMFS does not define the 
relationship of the VSP terms ``viable'' and ``critical'' to the ESA 
terms ``threatened'' and ``endangered.''
    Response: The VSP paper does not attempt to define ``threatened'' 
and ``endangered'' under the ESA. Defining ``threatened'' and 
``endangered'' requires policy decisions about the acceptable levels of 
risk to an ESU that the VSP concept does not address. It is also 
important to note that the terms viable and critical in VSP are often 
applied to populations, whereas the unit of interest with regard to the 
ESA is the ESU.
    Comment 39: Several commenters wanted the effects of potential 
actions to be evaluated on scales other than the population (some 
desired smaller, some larger).
    Response: Although a population is the appropriate unit for 
studying many biological processes, it may also be appropriate to 
evaluate management actions that affect units at smaller or larger 
spatial and temporal scales. For example, ocean harvest plans may 
affect multiple populations, while a habitat restoration plan only 
affects a small portion of a single population's habitat. The VSP 
concept does not preclude establishing goals at these different scales. 
However, management actions ultimately need to be related to population 
and ESU viability.
    Comment 40: Several commenters said that VSP does not adequately 
consider the importance of freshwater habitat.
    Response: VSP does not attempt to establish the habitat 
requirements for recovering populations. Habitat criteria are captured, 
generally, in the concept of Properly Functioning Conditions (PFC) 
discussed within this rule.
    Comment 41: A few commenters said that VSP does not consider 
important components of recovery planning, such as ecological 
interactions.
    Response: The VSP concept attempts to describe the population level 
attributes of viable salmonid populations; it does not prescribe how to 
recover populations. Recovery will require the entire suite of factors 
that impact salmon throughout their life cycle to be considered and 
evaluated--including ecological interactions and habitat needs. These 
are important issues that will need to be dealt with during recovery 
planning.
    Comment 42: Several commenters said that data needed to evaluate 
VSP parameters will not be available and, therefore, VSP concepts 
cannot be applied.
    Response: Data will generally not be available to thoroughly 
evaluate every VSP parameter. In developing the VSP guidelines, NMFS 
tried to consider all the processes that need to be evaluated in order 
to determine a population's status. If all of these processes cannot be 
evaluated, the VSP guidelines suggest the type of data that need to be 
collected. If a VSP guideline cannot be evaluated, managers must 
explicitly recognize the uncertainty associated with current management 
decisions because of a data-poor environment. The fact that VSP 
facilitates this recognition is, in itself, a valuable contribution.
    Comment 43: A few commenters said that VSP makes several references 
to ``historic conditions'' for evaluating population status, but does 
not define the time frame for ``historic.''
    Response: Historic conditions are used as a reference point in 
evaluating population status because under historic conditions 
populations were assumed to have been viable. The time frame, then, 
refers to a period in time where the population or ESU was considered 
self-sustaining and may represent different eras for different groups 
of fish. However, it should be noted that while historical data can be 
a valuable tool in evaluating population status, it should not suggest 
that NMFS will require all populations to be at historic levels in 
order to be viable. The value placed on historic data and the 
relationship between recovery goals and historic levels will be ESU- 
and population-specific.
    Comment 44: One commenter argued that given the high levels of 
uncertainty associated with the ESU viability guidelines, the default 
assumption should be that all populations need to be viable in order to 
produce a viable ESU.
    Response: This seems to be an appropriately precautionary approach, 
but responses to uncertainty entail policy decisions that can only be 
made after carefully analyzing a specific situation.
    Comment 45: One commenter said that by defining populations, VSP 
claims that straying always has negative effects on viability.
    Response: In the process of identifying populations, there is no 
blanket assumption that straying has a negative effect on viability. 
Straying is a natural process, and appropriate levels of straying 
within and among viable populations will depend on a balance between 
the risks and benefits of straying. Indeed, the VSP document 
acknowledges the potentially critical role that straying plays in 
extinction and recolonization dynamics among salmonid subpopulations 
and populations. It should also be noted that human factors (such as 
stock transfers, blockage of migratory routes, and other habitat 
alterations) have the potential to increase rates of genetic exchange 
by one to two orders of magnitude over historic levels. These changes 
are unlikely to be beneficial.
    Comment 46: Several commenters stated that VSP does not consider 
certain factors to be important when evaluating population status. 
These factors included (1) marine-derived nutrients, (2) diversity, (3) 
temporal and spatial structure, and (4) genetic drift.
    Response: These topics are covered in the current draft of the VSP 
document, and some topics may be clarified or expanded during the 
revision process.
    Comment 47: A few commenters said that in evaluating VSP 
parameters, juvenile fish counts should be considered as well as (or 
instead of) adult spawner counts.
    Response: Although the VSP paper discusses using juvenile fish 
counts, the guidelines generally focus on adult spawners counts--and 
not other life stages--because spawner count data sets are prevalent 
throughout the region and they can be related to the extensive body of 
conservation biology principles with relative ease. However, NMFS does 
not go into great detail on monitoring and evaluation programs and 
should consider any scientifically defensible strategy that allows 
population status to be evaluated. In some cases, it may be more 
feasible to collect data on juveniles than adults and it may be 
possible to assess population viability based primarily on juvenile 
counts. However, the population evaluation would still need to address 
the principles outlined in VSP regarding all four parameters (i.e., 
abundance, productivity, spatial structure, and diversity).
    Comment 48: One commenter said NMFS does not take an ``ecosystem 
approach.''

[[Page 42431]]

    Response: It is true that VSP focuses only on Pacific salmonid 
populations and the ecological processes that directly or indirectly 
affect them. The paper does not deal explicitly with other species or 
ecosystem processes that do not affect salmonids. However, given the 
large geographic scale and the presumed keystone role of salmonids in 
many ecosystems, an ``ecosystem approach'' is likely to emerge. 
Defining the management processes that may support an ``ecosystem 
approach'' is outside VSP's scope and intent.
    Comment 49: One commenter said that VSP is a framework, not a 
benchmark, and asserted that the states should have the latitude to 
develop some of their own benchmarks within this framework.
    Response: As noted in a previous response, VSP generally does not 
provide generic quantitative criteria. Quantitative criteria will be 
required in setting recovery goals for specific ESUs. In some contexts 
(often in reference to broad landscapes), the standard is expressed as 
``seeking to attain or maintain PFC.'' ``Contribute to PFC'' is a 
phrase often used in reference to near-term actions that put habitat on 
a course to attain PFC over time and is consistent with the standard. 
Finally, in some circumstances (often in referring to more site-scale 
decisions), the standard may be expressed as ``not precluding PFC.'' 
There is no distinction in practice between these expressions of the 
standard.

Evaluating Habitat Conditions-Properly Functioning Conditions (PFC)

    Comment 50: Several commenters opined that PFC should be more 
clearly defined. Others suggested that specific numeric criteria be 
included.
    Response: Both the preamble and rule texts have been modified to 
more clearly define PFC and its central role in habitat evaluations. 
Proper functioning conditions create and sustain over time the physical 
and biological characteristics that are essential to conservation of 
the species, whether important for spawning, breeding, rearing, 
feeding, migration, sheltering, or other functions. Habitat-affecting 
processes include, but are not limited to vegetation growth, bedload 
transport through rivers and streams, rainfall runoff patterns, and 
river channel migration. The concept of proper function recognizes that 
natural patterns of habitat disturbance, such as through floods, 
landslides and wildfires, will continue.
    NMFS measures conditions on the landscape to evaluate whether and 
how PFC is likely to be affected, attained or maintained by an 
activity. The indicators vary between different landscapes based on 
unique physiographic, geologic or other features. Although the 
indicators used to assess functioning condition may entail 
instantaneous measurements, they are chosen, using the best available 
science, to detect the health of underlying processes, not static 
characteristics.
    The scope of any given activity is important to NMFS' analysis. The 
scope of the activity may be such that only a portion of the habitat 
forming processes in a watershed are affected by it. For NMFS to find 
that an activity is consistent with the conservation of the listed 
salmonids, only the effects on habitat functions that are within the 
scope of that activity will be evaluated. For example, an integrated 
pest management program may affect habitat forming processes related to 
clean water, but have no effect on physical barriers preventing access 
by fish to a stream.
    NMFS' evaluation of an activity includes an analysis of both direct 
and indirect effects of the action. ``Indirect effects'' are those that 
are caused by the action and are later in time but are still reasonably 
certain to occur. They include the effects on species or critical 
habitat of future activities that are induced by the original action 
and that occur after the action is completed. The analysis also takes 
into account direct and indirect effects of activities that are 
interrelated or interdependent with the proposed action. ``Interrelated 
actions'' are those that are part of a larger action and depend on the 
larger action for their justification. ``Interdependent actions'' are 
those that have no independent utility apart from the action under 
consideration. NMFS has published an extensive discussion of the 
effects of activities in its Consultation Handbook--Procedures for 
Conducting Consultation and Conference Activities Under section 7 of 
the Endangered Species Act (March, 1998).
    Though there is more than one valid analytical framework for 
determining effects of an activity, NMFS has developed an analytic 
methodology it has documented in a Matrix of Pathways and Indicators 
(MPI; often called ``The Matrix''). The MPI can help NMFS and others 
identify any risks to PFC. The pathways for determining the effects of 
an action are represented as six conceptual groupings (e.g., water 
quality, channel condition, and dynamics) of 18 habitat condition 
indicators (e.g., temperature, width/depth ratio). Default indicator 
criteria (mostly numeric, though some are narrative) are laid out for 
three levels of environmental baseline condition: properly functioning, 
at risk, and not properly functioning. The effect of the action upon 
each indicator is classified by whether it will restore, maintain, or 
degrade the indicator.
    The MPI provides a consistent, but geographically adaptable, 
framework for effects determinations. The pathways and indicators, as 
well as the ranges of their associated criteria, are amenable to 
alteration through the process of watershed analysis. The MPI, and 
variations on it, are widely used in consultations under Section 7 of 
the ESA on the effects of federal actions and will be similarly used to 
evaluate activities pursuant to this rule. The MPI is also used in 
other venues to determine baseline conditions, identify properly 
functioning condition, and estimate the effects of individual 
management prescriptions. While this assessment tool originally was 
developed to address forestry activities, NMFS intends to work with 
state, tribal, and other experts to facilitate its use in other 
ecological settings such as lakes, estuaries and urban settings.
    Comment 51: One commenter objected that the conservation standard 
for PFC was ``jeopardy'' or survival, which is inadequate for ESA 4(d) 
rules and for recovery.
    Response: PFC is not calibrated to provide for population 
persistence at some level less than full recovery, nor does NMFS 
believe that the best available science holds out the possibility of 
such an incremental approach to habitat conservation. Land and resource 
managers are required to demonstrate that their proposed activities 
will allow for the recovery of all essential functions of salmon 
habitat.
    Comment 52: Several letters addressed the applicability of the 
``properly functioning conditions'' concept to urban settings and 
questioned whether PFC could ever be attained in urban environments.
    Response: It is widely recognized that urbanization alters the 
hydrologic behavior of once unpaved, undeveloped lands. Within this 
context, common goals for the management of urban landscapes include 
controlling stormwater runoff and protecting water quality. An urban 
watershed can become properly functioning if the ecological functions 
essential for listed salmonids within the watershed-such as storage, 
attenuation of peak flows, and water quality mitigation--can be 
restored by increasing watershed storage and providing buffers to 
attenuate water quality problems emanating from urban landscapes. In 
this context, the PFC goal

[[Page 42432]]

is to restore the hydrologic function in the urban watershed by 
modifying peak flow events, providing storage, protecting water quality 
and habitat, and allowing passage.
    Comment 53: One commenter stated that the draft VSP concept and 
NMFS' established PFC approach were inconsistent.
    Response: The VSP concept is being developed to serve as a 
population management analog to PFC's role in evaluating habitat-
affecting actions. The intent of VSP is to serve as a consistent 
conservation standard, equivalent to PFC, that can be applied in 
diverse analyses. The VSP emphasizes measurable fish population 
parameters because that is how fish harvest and culture activities' 
environmental effects are most immediately and evidently expressed. 
Conversely, PFC indicators are typically physical habitat 
characteristics because they most readily and measurably show the 
effects of land and water management regimes. In essence, PFC is a 
description of conditions that support salmonid productivity at a 
viable level. However, because the standards are applied at widely 
different geographic scales, NMFS cannot currently describe the 
quantitative relationships between fine-scale habitat characteristics 
and salmon population levels. Though the two approaches measure effects 
on different salmonid biological requirements, they consistently strive 
toward the same end: determining the effects of various activities, 
placing them in the context of the species' life histories, and using 
that data to ascertain the best means of recovering the salmon.

Legal/National Environmental Policy Act (NEPA)/Reg Flex/Direct Take

    Comment 54: Commenters asserted that the proposed rule exceeds 
NMFS' authority, either by reaching too far in protections or failing 
to meet ESA mandates by not being protective enough. Many commenters 
raised questions about the legal standards underlying limits and about 
the relationship between section 4(d) and section 7 consultations or 
section 10 habitat conservation plans. Several asserted that the 
standards for all three functions should be the same; others emphasized 
that the standard for 4(d) is more protective, stating that it must 
conserve the listed species.
    Response: Many of those comments focus more on the limits provided 
than on the legally enforceable outcome of the rule (the take 
prohibitions). This response will first set forth in a general fashion 
the basis for this final rule, and then respond to the remainder of 
legal issues that are not included in the overall description.
    First, section 4(d) regulations are those ``necessary and advisable 
to provide for conservation'' of the threatened salmonids. This final 
rule imposes one major regulatory prohibition (in addition to the less 
significant prohibitions of section 9(a)(1) or interstate commerce and 
import/export): that is, that actors are to avoid taking threatened 
salmonids of the 14 listed ESUs. The take prohibitions are what the ESA 
imposes by statute to protect endangered species and, if perfectly 
implemented, would provide the most protection possible. There is no 
question but that take prohibitions ``provide for the conservation'' of 
the species.
    Nor can there be any real question about the advisability of 
imposing take prohibitions at all. NMFS' listings were based on 
findings that the ESUs are at risk and specifically that there are 
factors (set forth in ESA section (4(a)(1)) that have caused and are 
continuing to cause the listed ESUs' populations to decline. See 
``Factors for Decline: A Supplement to the Notice of Determination for 
West Coast Steelhead'' (NMFS, 1996); Coastal Coho Habitat Factors for 
Decline and Protective Efforts in Oregon'' (NMFS, 1997), and ``Factors 
Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 
West Coast Steelhead Factors for Decline Report'' (NMFS, 1998). Many of 
these factors (habitat destruction, overutilization, inadequate 
regulatory systems) are state, local, or private, and have no link to 
Federal actions. Prohibiting take for these ESUs is, therefore, the 
most direct way of protecting the listed species. NMFS listed two 
additional chinook ESUs as threatened in September of 1999 and will be 
proposing ESA 4(d) protections for them in the near future.
    This final rule also establishes 13 circumstances in which NMFS 
does not find it necessary and advisable to apply the take 
prohibitions. NMFS believes that by describing (wherever possible) a 
program or the components of a program that will adequately protect the 
species, it provides valuable guidance to agencies or individuals 
wishing to play a part in salmonid protection and will minimize their 
legal risks under the ESA as well. NMFS further believes that it is 
appropriate to limit the take prohibitions for such programs provided 
that NMFS' salmonid conservation goal (and legal responsibility) is not 
compromised--that is, so long as the rule provides for conservation of 
the listed ESUs. Thus, this final rule limits the application of the 
take prohibitions selectively. NMFS is confident that given the 
stringency of the fish protections in the programs receiving limits on 
the take prohibitions, this final rule meets the section 4(d) 
conservation standard.
    In determining that take prohibitions are not necessary and 
advisable for a particular program, NMFS has ensured that each 
program--including programs that NMFS will evaluate in the future to 
determine whether they fit within one of the 13 limits--will not 
jeopardize the species. That is, none will appreciably reduce the 
likelihood of survival and recovery of any of the ESUs in the wild.
    Further, for some programs involving sectors which have had 
particularly destructive impacts on habitat or bear other significant 
responsibility for decline of the species, there must be a 
demonstration above and beyond ``not jeopardizing.'' Just as a Federal 
agency has a responsibility not only to conduct its affairs in a way 
that does not jeopardize but also to use its authorities in furtherance 
of the conservation of the species, ESA 4(d) regulations as a whole 
must provide measures necessary and appropriate to conserve the 
species. Hence, while for many actions or programs ``not jeopardizing'' 
may be equivalent to not precluding or impairing recovery, for others 
it may be necessary to include commitments for specific positive 
contributions that are vital to recovery because of past impacts from 
those sectors. NMFS has taken those considerations into account when 
evaluating potential programs (or establishing approval criteria) to 
determine if they qualify for inclusion in one of the limits.
    By statutory definition, species conservation equates to those 
methods and procedures that will bring a species to the point at which 
it no longer needs the protections of the ESA and may be delisted. 
Those methods and procedures encompass the full array of actions that 
will contribute to recovery: Federal efforts to avoid jeopardy and 
conserve the species under section 7; efforts taken in accord with 
section 10 conservation plans; state, tribal, local, or private 
initiatives undertaken to improve the prospects of listed fish quite 
independent of any ESA requirement; efforts to avoid taking listed 
species; and habitat improvements accomplished under numerous 
regulatory programs for protecting other resources, such as the CWA, 
state and Federal regulations governing fill and removal in waterways, 
and the like.
    NMFS believes this final rule reflects the necessary and 
appropriate level of protections for conserving these threatened ESUs 
given our current

[[Page 42433]]

knowledge. As the preamble to the proposed rule noted, NMFS recognizes 
that new information may lead to changes in the final rule. NMFS has 
not yet completed recovery planning for the species subject to this 
final rule, nor does the ESA command that recovery planning precede 
enactment of 4(d) regulations. Once recovery planning is complete, NMFS 
may amend the 4(d) protections with any combination of new or amended 
limits, impose the take prohibitions if a limit were found not to be 
consistent with a necessary and appropriate recovery measure, or 
require enhancements or prescriptions.
    Comment 55: A few commenters asserted that NMFS gives no indication 
that it intends to comply with ESA sections 7 or 10 in promulgating or 
implementing these rules.
    Response: Promulgation of a section 4(d) rule is a Federal action 
requiring consultation under section 7 of the ESA. NMFS must ensure 
through its internal consultation process that the 4(d) rule being 
promulgated is not likely to jeopardize the continued existence of 
listed species or result in the destruction or adverse modification of 
their critical habitat. NMFS completed the required consultation and 
concluded that promulgation of this rule greatly improves protections 
for threatened salmonids and their habitat, and is not likely to 
adversely affect either those ESUs or other listed species. NMFS has 
complied with its section 7 consultation requirements.
    Where take prohibitions are imposed, those pursuing actions that 
may take listed salmonids may choose to apply for a section 10 permit 
at any time. Section 10 permits are issued on a case-by-case basis 
supported by individual analysis and section 7 consultation. Where NMFS 
has found it not necessary to impose take prohibitions, there would be 
no basis for issuing research or enhancement or incidental take permits 
through section 10, provided the action is carried out in accordance 
with the requirements of the applicable limit.
    Comment 56: One commenter urged that NMFS make clear that no state 
or local rule shall hinder NMFS or citizens from taking legal actions 
to ensure salmon recovery. Another asked that NMFS provide for citizen 
enforcement and appeal of local government permits re ESA issues. A 
third commenter suggested that the limits be revised to reflect the 
idea that they extend only so far as local governments' reasonable 
interpretation and application of its own rules.
    Response: This final rule does not in any way alter the ESA's 
enforcement provisions, including the rights of third parties to 
enforce under appropriate circumstances. Second, NMFS believes the 
proposed rules clearly established that in any enforcement proceeding 
where there is a question whether an action is ``in compliance with'' 
one of the described limits, it is ultimately the defendant's (or 
respondent's) responsibility to assert that issue as an affirmative 
defense and establish facts that show compliance. In order to dispel 
any confusion by the public on this point, NMFS has added a subsection, 
``Affirmative defense,'' to spell out that it will be the defendant's 
or respondent's obligation to plead application of and compliance with 
a limit as an affirmative defense. This approach is consistent with the 
structure of the proposed rule and with ESA section 1539(g) which 
states ``In connection with any action alleging a violation of section 
1538 [the section 9 prohibitions] of this title, any person claiming 
the benefit of any exemption or permit under this chapter shall have 
the burden of proving that the exemption or permit is applicable, has 
been granted, and was valid and in force at the time of the alleged 
violation.'' NMFS anticipates that in most cases, the applicability of 
individual limits will be resolved early in an enforcement 
investigation. Enforcement personnel will make reasonable efforts to 
attempt to rule out the applicability of 4(d) limits by, for example, 
evaluating circumstantial evidence, or through direct contact with the 
potential violator and subsequent confirmation through reliable third 
party sources. However, ultimately it is not the agency's 
responsibility to determine the existence or nonexistence of every 
exculpatory fact relating to an alleged ESA violation. This 
clarification is also consistent with existing case law, which 
generally holds that the burden of raising and proving affirmative 
defenses rests with the defendant, not with the government (see, e.g., 
Patterson v. New York, 97 S.Ct. 2319 (1977)).
    As to the third comment, once a state or local government program 
comes within a limit (for instance, local development ordinances found 
by NMFS to meet the standards of the rule), it will be up to the local 
government to implement that ordinance, including any necessary 
exercise of reasonable judgement. If monitoring or other information 
indicates that the ordinance, as implemented, is not providing adequate 
protections, then the adaptive mechanisms in the 4(d) rule will trigger 
changes in the ordinance, imposition of the take prohibitions, or 
imposition under the ESA of affirmative requirements.
    Comment 57: One commenter suggested that the standards set in the 
4(d) rule to qualify for a limit are higher than landowners would 
otherwise be required to meet to avoid take. Another stated that there 
was no consistent conservation standard applied in evaluating potential 
limits.
    Response: NMFS must respectfully disagree. The limits described in 
this final rule do not in every circumstance avoid all take. To do so 
would require much more stringent steps in some cases. Rather, the 
limits reflect NMFS' judgement that activities in compliance with such 
a program or approach are what current information indicates will be 
necessary and advisable for that activity sector to conserve the ESUs. 
Activities in compliance with such a program or approach will not 
appreciably reduce the likelihood of survival and recovery of the 
species in the wild and, where necessary, will include other 
conservation measures to repair or improve conditions. Nonetheless, it 
is expected--and in some cases demonstrable--that activities satisfying 
the conditions for inclusion within one of the limits will still take 
listed salmonids.
    In evaluating fishery management programs to determine if they 
qualify for a limit, NMFS relies on the concept of viable salmonid 
populations and its associated use of viable and critical thresholds 
for management decisions. The limits require that relevant biological 
parameters be identified so individual population status can be 
evaluated and the program may be placed in an appropriate context for 
determining whether it will support population viability. Land 
management related programs being considered for limits are assessed 
according to their ability to help attain or maintain properly 
functioning conditions (i.e., those conditions NMFS considers necessary 
for supporting viable salmonid populations).
    Comment 58: Several commenters noted that NMFS had not made the 
case that take prohibitions (or any ESA 4(d) rules) are needed for 
these ESUs, or for specific sectors of activity. Some assert that NMFS 
should first demonstrate that conservation activities applicable to 
Federal activities have been fully tapped before applying 4(d) rules to 
private lands.
    Response: NMFS must respectfully disagree. While the contribution 
of non-Federal actions to the overall decline of the ESUs affected by 
this final rule varies, depending in part on the ratio of Federal to 
non-Federal lands and in part

[[Page 42434]]

on the concentration of habitat modifications and non-Federal hatchery 
or harvest impacts, NMFS could not justify placing all hope of 
sustaining and recovering these ESUs on Federal agency actions alone. 
The record upon which NMFS listed these ESUs is abundantly clear that 
the decline of the ESUs is substantially influenced by actions other 
than those with some Federal nexus. While section 4(d) provides the 
Secretary some discretion in determining what protective regulations 
are necessary and advisable in a given circumstance, the structure of 
the section strongly supports the appropriateness of a determination to 
impose take prohibitions.
    Comment 59: At least one commenter, while agreeing that the limits 
are not prescriptive rules, states that the rule making record does not 
support ``this wide-ranging prescriptive rule'' which the commenter 
believes prohibits ``a very wide variety of activities that might 
occasionally ``take'' listed species'' without NMFS' permission.
    Response: To repeat the preamble text from the proposed rules, 
``[t]he fact of not being within a limit would not mean that a 
particular action necessarily violates the ESA or this regulation.'' 
NMFS has attempted to make even clearer in this final rule that 
activities that are not within a limit are not prohibited. What is 
prohibited is taking a threatened salmonid through any activities not 
within a limit. Those conducting activities that are not within a limit 
are subject to liability only if it can be demonstrated that their 
activities in fact have taken a threatened salmonid. An actor believing 
that its actions result in incidental take may apply for an incidental 
take permit under ESA section 10 to ensure that no enforcement 
liability accrues.
    Comment 60: Two commenters noted that they had requested the 
decision-making record (for the proposed rule) and were told that it 
was ``unavailable for public review.''
    Response: Both proposed 4(d) rules included a ``References'' 
section that offered a list of the references relied on. These 
documents were available to the public. That is all that informal 
rulemaking requires.
    Comment 61: A few commenters noted that it is inconsistent with the 
ESA to apply the ``jeopardy'' standard (to not appreciably reduce the 
likelihood of survival and recovery in the wild) in a 4(d) rule; also, 
doing so for tribal plans is inconsistent with the standard applied for 
other ``exemptions.'' One commenter urged that NMFS model all of the 
limits after the limit for tribal plans, which provides a process for 
NMFS to determine a plan's consistency with ESA standards, but does not 
set out specific requirements or standards.
    Response: NMFS believes that none of the limits will jeopardize the 
listed species' survival or recovery and that each habitat-related 
limit will contribute to placing habitat on a trajectory toward proper 
function and populations on a trajectory toward viability. It is worth 
noting that in practical application, distinctions between what is 
needed for survival and recovery and between providing for recovery and 
not jeopardizing the likelihood of survival and recovery are 
speculative at best and perhaps specious. The limit for tribal plans 
applies that same standard but without specific requirements or 
standards, in deference to tribal sovereignty and the government-to-
government basis on which NMFS interacts with tribes. It is important 
to note that while there is less specific guidance with respect to 
tribal resource management plans, they will be assessed against the 
fundamental ESA standard (whether they will appreciably reduce the 
likelihood of survival and recovery in the wild), as have the other 
limits, and that any determination regarding tribal resource management 
plans will be accompanied by a description of the biological rationale 
for its outcome.
    Comment 62: One commenter believed that the ESA 4(d) limits are 
``negotiated,'' ``second class'' HCPs appropriate only to larger 
governmental entities and that they consign jurisdictions with smaller 
population bases to the fringes of the process. Another urged that all 
limits should be drafted so that they are made available to any 
government wanting to participate and get coverage under the limit.
    Response: While NMFS does not agree with the commenter's 
characterization of the limits, we have broadened some of the limits' 
availability and modified others in such a way that they are more 
adaptable for smaller or more rural jurisdictions. For instance, the 
development limit no longer targets only to ``urban density'' 
development, and the road maintenance limit is available to any 
jurisdiction. These sorts of adjustments are the very heart of the 4(d) 
limit process--they illustrate NMFS' intention to create an open 
process of public review and adapt our proposals (when we may) in 
accordance with the feedback we receive.
    Comment 63: One commenter suggested that NMFS should create 
``categorical exclusions'' for activities not requiring the ongoing 
review and monitoring required in the proposed rules. The commenter 
points to FWS regulations that permit the Utah prairie dog to be taken 
under Utah state permits.
    Response: In this final rule NMFS has made a number of adjustments 
to make limits more broadly available and to minimize requirements for 
oversight. However, the prairie dog provision the commenter cites makes 
very clear that if those takings interfere with conserving the species, 
FWS may immediately prohibit further such takings. Similarly, NMFS 
believes that the level of ``tracking'' required in this final rule 
will ensure that impacts from non-prohibited activities are consistent 
with conserving the threatened salmonids.
    Comment 64: Some commenters asserted that the ``proposed 
requirement'' for protecting flows for listed species should be 
addressed in a local government's ordinance is beyond the scope and 
authority of a local government.
    Response: Evaluation consideration ``J'' for the MRCI limit asks 
that the local government ordinances ensure that [new] development-
related water supply demands can be met without impacting flows needed 
for threatened salmonids. This request does not require local 
government to regulate water rights or otherwise control flows; it asks 
only that new development demonstrate that its new water demands can be 
satisfied without undercutting flows required by threatened salmonids.
    Comment 65: One commenter suggested NMFS should delegate to state 
and local officials authority to limit the take prohibition or provide 
a ``certificate of safe harbor.'' Another commenter suggested that ESA 
section 9 take prohibitions cannot apply within a state unless the 
state has also adopted those regulations. This comment relies on the 
reference within 4(d) to section 6(c)(`` ...such regulations shall 
apply in any State which has entered into a cooperative agreement 
pursuant to section 6(c) of this Act only to the extent that such 
regulations have also been adopted by such State'').
    Response: The approach NMFS takes in this final rule aims to 
recognize and encourage state and local programs wherever NMFS finds 
them adequate. Nothing within the ESA would give NMFS the authority to 
delegate the functions suggested, unless a state had the full set of 
authorities required under section 6 of the ESA for state 
``assumption'' of a program. No state has as yet met those 
qualifications, which would include having all authorities necessary to 
conserve the listed species

[[Page 42435]]

(such as the ESA provides through section 9, etc.). Therefore, the 
cited text of section 4(d) does not apply.
    Comment 66: Another commenter suggested NMFS lacked authority to 
``delegate'' scientific research permit authority to the states.
    Response: As discussed in response to an earlier comment, this 
final rule does not delegate permit authority to states. For a subset 
of all research activities, this final rule does not apply take 
prohibitions, leaving those research activities subject only to state 
permitting. For other research, ESA constraints are still in place and 
researchers should seek ESA section 10 permits (for instance, for 
research in which private parties intentionally take listed fish.)
    Comment 67: Several comments assert that the ESA 4(d) rules will 
result in takings of private property. One asked that the rule provide 
greater flexibility for redevelopment to prevent takings of private 
property.
    Response: The legal effect of this final rule is to prohibit take 
of threatened salmonids. Complying with that mandate will certainly 
cause some changes in land management and use and that may affect the 
economic value of certain activities on the land to a greater or lesser 
extent--depending on the circumstance. This final rule does not, on its 
face, prohibit property use in any way that would rise to the level of 
a constitutional taking, nor does NMFS believe that the adjustments 
necessary to avoid taking threatened salmonids will be so draconian as 
to amount to a constitutional taking in any case.
    Although NMFS does not agree that this final rule would likely 
cause a constitutional taking of property, NMFS did intend that the 
development limit should be broadly available and has amended and 
clarified the regulation to accomplish that purpose, including 
specifically naming redevelopment as one of the activities that 
individual ordinances could cover within the limit.
    Comment 68: Many commenters desired that NMFS clarify the status of 
the limits: either wanting to be sure they are not prescriptive, or 
believing they should be hard requirements. Commenters also wanted to 
know if activities outside a limit constituted a violation of the rule.
    Response: The limits are not prescriptive. They are not even 
enforceable requirements; rather, an entity wishing assurance that its 
actions are consistent with the ESA may take the necessary steps--as 
outlined in the regulations--to come within a limit on the take 
prohibitions. No enforcement action can be taken based on a charge that 
someone has failed to follow a limit. Enforcement actions must allege 
(and ultimately prove) that a listed fish has been taken.
    NMFS understands that some commenters would prefer the agency to 
promulgate specific, detailed regulations to govern particular sectors 
of activity. For a variety of reasons, NMFS has not chosen that course 
at this time. Specific proscriptions are an effective protective 
mechanism where, as with threatened sea turtles, a very specific cause 
of mortality can be addressed with precision. In the case of Pacific 
salmonids, where impacts are caused by a large array of activities and 
where the circumstances leading those impacts to constitute a take are 
extremely site- or circumstance-specific, NMFS believes it extremely 
difficult to design a single set of prescriptive rules to cover all of 
those situations. In addition, prescriptive regulations would likely 
impose unnecessary costs on some individuals. This is because state, 
local and individual strategies for avoiding take can be more closely 
adapted to the local geography or fishery opportunities than can rules 
that cover an entire landscape. Thus they are equally as effective (or 
more so) at avoiding take of listed species and less costly than 
regionwide, blanket prescriptions. The approach taken in this final 
rule, recognizing limits but not requiring all entities or actors to be 
within a limit, offers an opportunity to test particular combinations 
of approaches without requiring everyone to invest in them immediately. 
Finally, as noted elsewhere in these responses, once recovery planning 
is complete it may identify specific areas needing more prescriptive 
attention.
    Comment 69: Numerous comments suggested that the rule intrudes 
impermissibly on state water law. Commenters questioned NMFS' 
understanding of western water law and authority to regulate water.
    Response: First, as discussed elsewhere, this rule does not 
directly regulate water use or water rights in any way. Rather, water 
diversion was identified as an activity likely to result in take under 
particular circumstances. There is nothing in the ESA that would carve 
water use out of the bundle of activities that might lead to an 
enforceable take of salmonids, nor that would excuse senior water users 
from responsibility for any take that occurs as a result of their 
actions. NMFS does not disagree that on a case-by-case basis, questions 
or priority may be germane to determining causal responsibility for 
particular impacts. In ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 
2000), NMFS provides more information on how water users may evaluate 
the level of risk of take associated with their diversions and explores 
options for reducing that risk.
    Comment 70: One commenter asked NMFS to clarify whether ESA section 
7 compliance ``is a substitute for'' compliance under the rule. Another 
requested that NMFS include an explicit limit for any entity whose 
actions have been the subject of an informal consultation in which NMFS 
has concurred that the action is not likely to adversely affect the 
threatened species.
    Response: Section 7 compliance is an adequate substitute for 
compliance under this rule. So long as an entity is acting within a 
completed formal ESA section 7 consultation and compliant with terms 
and conditions imposed, if any, then section 7(o)(2) provides an 
exception to the prohibitions on taking. Actions subject to informal 
consultation have a very low probability of take and are thus in the 
category of activities that do not need to pursue a limit.
    Comment 71: Take prohibitions should be applied to California's 
Central Valley, especially the Yuba River area.
    Response: The Central Valley steelhead ESU is subject to this final 
rule. NMFS expects to propose ESA 4(d) protections for the Central 
Valley spring chinook ESU (listed in September of 1999) within the 
coming months. Meanwhile, that ESU will benefit from habitat protection 
afforded by steps taken to avoid taking Central Valley steelhead.
    Comment 72: One commenter stated that contrary to the Executive 
Order on Federalism (E.O. 13132), this final rule's intervention 
(monitoring and reporting/adjustment of limitations) in state and local 
land use governance exceeds NMFS' authority by unnecessarily infringing 
on state sovereignty. Another suggested that the final rule should 
state that NMFS is not requiring consistency between state and local 
regulatory programs and objectives of the ESA.
    Response: NMFS does not agree that this rule intrudes upon state or 
local authorities or sovereignty. This rule does not require states to 
undertake any particular set of actions. It requires that states (like 
all other actors) refrain from taking threatened salmonids. It provides 
one mechanism that actors (including states for some of the limits) may 
pursue to ensure that they do not violate take prohibitions. A state 
could instead choose to pursue ESA section 10 permits. Where there is a 
Federal nexus, state actions may receive ESA scrutiny and legal 
assurance through an ESA section 7 consultation initiated by the action 
agency. Or, in appropriate cases,

[[Page 42436]]

a state may determine in its own judgement that particular activities 
do not carry a risk of taking listed fish, or it may modify its 
activities in such a way as to reduce any risk of take to an acceptable 
level.
    Comment 73: One commenter argues that the VSP paper is inconsistent 
with the statutory requirements of the ESA, because of the statement in 
the preamble to the proposed rules that a ``viable population threshold 
refers to a condition where the population is self sustaining, and not 
at risk of becoming endangered in the foreseeable future.'' The 
commenter suggests this implies a threatened species can be allowed to 
remain in threatened condition perpetually, and still be considered 
viable.
    Response: The commenter has identified an imprecise 
characterization that was included in the preamble to the proposed 
rules. This statement has been removed. As explained in response to 
other comments on VSP, the VSP paper does not attempt to define 
``threatened'' or ``endangered'' under the ESA.
    Comment 74: Some commenters stated that NMFS is abusing its 
discretion by not invoking section 9 prohibitions, and instead relying 
upon promised conservation efforts and future actions that are not 
currently operational.
    Response: This final rule relies upon a determination that a 
conservation program approved for a limit of the take prohibition has a 
high degree of certainty that it will be implemented. NMFS may require 
a commitment to mitigate if implementation of a program is terminated 
prior to completion.
    Comment 75: One commenter asserted that NMFS should not or cannot 
incorporate guidance by reference unless it has undergone ESA section 7 
analysis.
    Response: First, because of modifications made in response to 
comments, this final rule incorporates far fewer documents by 
reference. Second, while there is no requirement for a section 7 
consultation on such documents, those referenced in the final rule have 
been analyzed to ensure that actions under them will not appreciably 
reduce the likelihood of survival and recovery of the listed ESUs in 
the wild.
    Comment 76: One commenter wanted the rules modified to prohibit 
Federal agencies from activities that ``take'' threatened salmonids.
    Response: In most cases this final rule does not specifically 
address Federal agency actions. Once take prohibitions are in effect, 
they apply to all actors--Federal and non-Federal alike. Second, the 
ESA requires that Federal actions be assessed under section 7(a)(2), 
and nothing written in a 4(d) rule would excuse that obligation. Once 
NMFS has issued a biological opinion and incidental take statement for 
Federal agency actions, section 7(o) of the ESA relieves the agency of 
liability for take.
    Comment 77: One commenter asserted that the rules could make the 
controllers of certain activities (such as noxious weed control) 
vulnerable to third-party lawsuits. Commenters expressed concern about 
municipal and irrigation district liability for issuing permits that 
result in take. One commenter stated that municipal entities cannot be 
held liable for take if the entity does not have discretion in issuing 
a permit.
    Response: The first commenter is correct that under the ESA the 
take prohibitions are enforceable by NMFS or by third parties. This 
final rule does not create any enforcement routes not specified in the 
ESA. The take prohibitions apply to all actors, so municipalities and 
irrigation districts certainly face the possibility of liability; 
actual liability would depend on specific factual circumstances and the 
degree of connection between the permit and the take that actually 
occurs. As to the suggested legal interpretation that a municipal 
entity's lack of discretion in deciding to issue a permit would be an 
absolute defense to liability, NMFS believes that question must be 
addressed in the specific enforcement context in which it arises.
    Comment 78: One commenter noted that in cases where documents 
create new legal rights or duties, they are considered ``substantive 
rules'' and must be either published in the Federal Register or be 
incorporated by reference through the Director of the Federal Register. 
Therefore, NMFS should clarify how subsequent amendments to these 
referenced documents will be treated.
    Response: There are seven documents referred to in the regulatory 
text of this final rule. The purpose of making these documents 
available to the public is to inform governmental entities and other 
interested parties of the technical components NMFS expects to be 
addressed in programs submitted for its review. These technical 
documents provide guidance to entities as they consider whether to 
submit a program for a 4(d) limit. The documents represent several 
kinds of guidance, and are not binding regulations requiring particular 
actions by any entity or interested party. NMFS will continue to review 
the applicability and technical content of its own documents as they 
are used in the future and make revisions, corrections or additions as 
needed. NMFS will use the mechanisms of this final rule to take comment 
on revisions of any of the referenced state programs. If any of these 
documents is revised and NMFS relies on the revised version to provide 
guidance in continued implementation of the rule, NMFS will publish in 
the Federal Register a notice of its availability stating that the 
revised document is now the one referred to in the specified 223.203(b) 
subsection.
    Comment 79: One commenter suggested that NMFS clarify the 
regulation regarding withdrawal of a take limit, believing those in the 
proposed rule to be unnecessarily harsh.
    Response: NMFS has modified the language throughout this final rule 
to clarify this point.
    Comment 80: One commenter stated that the final rule should be non-
severable, so that if any or all limits are overturned in a legal 
challenge, the take prohibitions will not remain in effect. Another 
suggested that no take prohibition should be imposed until broad limits 
are available for virtually all sectors of human activity.
    Response: A fundamental precept of this final rule is NMFS' 
determination that the subject ESUs require 4(d) protections. Given 
that, it would be inconsistent with NMFS' ESA responsibilities to the 
threatened fish to defer any protections in that manner. NMFS has 
clarified this point by making it explicit that the agency intends the 
provisions of this rule to be severable.
    Comment 81: Because NMFS broadly applies PFC as standards with a 
regulatory effect, PFC guidance and supporting science should be 
subject to public notice and comment before it is formally applied to 
ESA 4(d) limitation approvals.
    Response: PFC requires the maintenance of habitat functions 
essential to the survival and recovery of listed salmonids. As such, 
the use of the PFC approach as an analytical tool adds no standard to 
that already established in the ESA, but rather assists NMFS and the 
users in evaluating effects of activities on conservation of the 
species.
    Comment 82: One commenter asked NMFS to clarify whether the take 
prohibition applies throughout the range of the ESUs or only in 
designated critical habitat. Another asserted that NMFS has created a 
de facto extension of critical habitat.
    Response: The take prohibition applies throughout the range of the 
affected ESUs. Critical habitat designation gives guidance to Federal 
agencies, and is not directly linked to ESA section 4(d) in any way. As 
to the

[[Page 42437]]

assertion that the rule creates ``de facto'' critical habitat, NMFS 
must respectfully disagree. Contrary to the commenter's perception, 
this rule does not suggest that ``highly burdensome and expensive `safe 
harbors' are what it takes to avoid ESA section 9 take liability.'' The 
rule provides one method of ensuring that no ESA section 9 take 
liability accrues, but there are other methods such as section 10 
permits. Or, an actor may determine in its own judgement that 
particular activities do not carry a risk of taking listed fish, or 
modify its activities in such a way as to reduce any risk of take to an 
acceptable level.

Direct Take

    Comment 83: Some commenters contended that under the ESA, and court 
decisions interpreting it, NMFS does not have the discretion to 
``allow'' or ``authorize'' direct take of listed species through 4(d). 
The commenters cite cases in which the courts have determined that FWS 
could not authorize hunting of threatened wolves or grizzly bears 
unless it had first determined that ``population pressures within the 
animal's ecosystem cannot otherwise be relieved.''
    Response: In these rules the Secretary is making an initial 
determination as to what protective regulations are ``necessary and 
advisable to provide for the conservation of'' the listed salmonids. In 
making that determination, the Secretary is not required to impose take 
prohibitions. In fact, section 4(d) goes on to state that ``[t]he 
Secretary may by regulation prohibit with respect to any threatened 
species any act prohibited under section 9(a)(1)...'' Thus, the 
Secretary has discretion to assess the status of the listed ESUs and to 
determine, as he has here, that blanket application of the take 
prohibitions is not necessary and advisable, and to describe the 
circumstances in which take prohibitions will not be applied. The 
Secretary has found that in certain circumstances, activities are 
sufficiently regulated by other entities or processes that Federal take 
prohibitions are not necessary and advisable.
    In a variety of circumstances, take prohibitions might not be found 
necessary and advisable to provide for the conservation of a threatened 
species. For instance, if a threatened species is located almost 
exclusively on Federal lands and impacted largely by a Federal activity 
on those lands, the Secretary might determine that section 7 
consultations will provide all the protections necessary to allow the 
species to recover. Or, a threatened species might be threatened 
because of negative impacts from a narrow class of human activity. In 
that circumstance, the Secretary might choose to impose prescriptive 
regulations tailored specifically to alter those activities in a manner 
that would allow the species to recover.
    More importantly, the biological impact of take on the ESU is the 
same, whether a particular number of listed fish are lost as a result 
of incidental impacts or intentional (directed) impacts. Situations in 
which this final rule would limit the application of take prohibitions 
for intentional taking of threatened salmonids are extremely limited 
and consistent with the conservation and recovery goals of the ESA. 
Scientific research activities conducted by fisheries experts, in 
accord with specific guidance, and permitted by a state, can be within 
the limit. Harvest activity will have direct impacts in very few 
situations--generally where the status of the affected population is 
already considered viable, even though the status of the larger ESU is 
not. Taking listed broodstock for artificial propagation might occur 
for conservation purposes (or, only after the species' conservation 
needs are met, for secondary purposes such as fisheries).
    Comment 84: A few commenters stated that in excusing direct take 
through harvest, NMFS is placing a far more demanding burden on other 
sectors (such as land use) in terms of minimizing and avoiding 
incidental take. They asserted that the demands/standards should be 
equivalent.
    Response: This final rule is far from ``excusing direct take 
through harvest'' in any blanket fashion, as the comment may be read to 
suggest. Rather, in setting out the standards by which any fishery 
harvest program will be judged, NMFS has emphasized the means by which 
a management scheme maintains or achieves viable status for a 
population rather than on the specific mechanism by which that impact 
may be incurred. This final rule does not give a pass to any specific 
management plan at this time; each plan must be made available for 
public comment and reviewed against the standards for an Fishery 
Management and Evaluation Plan (FMEP). NMFS anticipates few instances, 
especially in the early stages of recovery, where such plans will 
include impacts targeted on threatened salmonids.
    The standards by which NMFS will judge the suitability of any 
program for a limit are the same, whether the program manages fishery 
harvest or some type of land management activity. In both instances, 
such a program may have some impact on the listed ESU, but at a level 
that will not appreciably reduce the likelihood of its survival and 
recovery in the wild. Because current habitat conditions are in most 
cases far below those needed to support viable populations in the wild, 
additional impacts on habitat must be carefully constrained and in many 
cases, accompanied by mitigative measures.
    Comment 85: One commenter stated that the proposed rule does not 
(but should) address commercial harvest and noted that NMFS recently 
increased the allowable commercial take of salmon which will 
unavoidably include some listed fish.
    Response: The prohibition against take applies to all activities 
subject to U.S. jurisdictions, including commercial, recreational, and 
tribal harvest. The commenter refers to commercial harvest in the 
marine context, which is evaluated through section ESA 7 consultations. 
Any commercial activity in non-ocean fisheries would have to be 
governed by an FMEP in compliance with all of the standards of these 
rules.

NEPA

    Comment 86: Some commenters wanted NMFS to clarify the extent to 
which NEPA applies to the ESA 4(d) rules.
    Response: NEPA applies to the ESA 4(d) rules and, as the proposed 
rule states, NMFS completed environmental assessments (EAs) for this 
action. Those EAs were made available upon request and on NMFS' web 
site during the comment period.
    Comment 87: Several commenters suggested that the EAs failed to 
examine a full range of alternatives (such as the Oregon Plan) or that 
they did not adequately discuss and evaluate the impacts of the 
proposed action.
    Response: While none of the alternatives focus specifically on the 
Oregon Plan by name, Alternative B contemplates that a state ``would 
have developed a fully adequate comprehensive salmon conservation plan 
...to ameliorate all factors for decline for ...an ESU.'' The EA 
assesses what impacts a fully adequate plan would have on the 
environment, assuming that NMFS recognized such a plan by not applying 
the take prohibitions to actions in conformance with it. NMFS has 
reexamined the EAs in light of these comments and believes they 
explored an appropriate set of alternatives.
    Comment 88: One commenter noted that NEPA requires a quantitative 
assessment of consequences of the proposed rule and that agencies 
should

[[Page 42438]]

ensure the scientific integrity of discussions and analyses in NEPA 
documentation--including explicit reference to the sources relied upon 
in making the determination.
    Response: The comment would be appropriate to an Environmental 
Impact Statement (EIS). However, an EA should not contain long 
descriptions or detailed data. Rather, it should contain a brief 
discussion of the need for the proposal, alternatives, and the 
environmental impacts of the proposed action and the alternatives. 
Hence, NMFS believes the level of detail provided is adequate for an 
EA, which is expected to be a concise, brief document.
    Comment 89: Some commenters asserted that the ESA 4(d) rules will 
allow significant negative impacts from logging, water withdrawal, 
agriculture, etc. to continue; hence, NMFS should draft an EIS 
disclosing these significant impacts. Others stated that the simple act 
of proposing the 4(d) rules required documentation in an EIS and that 
the final rules should be delayed until such an EIS has been written.
    Response: While such activities may have significant negative 
impacts on the human environment, they do not occur as a result of the 
ESA 4(d) rules. The comment argues for regulations that will reduce 
those negative impacts. As the EAs reflect, the take prohibitions will 
do that. While the commenters may question whether the take 
prohibitions are the best tool for reining in those negative impacts, 
the final 4(d) rules as written do not cause any of those impacts. 
Therefore, no EIS is required for the 4(d) rules.
    Take prohibitions are the sole legally enforceable component of 
these 4(d) rules, and will impact the environment in a positive manner, 
phasing in over a long period of time (especially with regard to 
habitat impacts). The Council of Environmental Quality regulations make 
clear that the fact that an action will have net beneficial 
environmental impacts does not excuse preparation of an EIS where there 
are also significant negative impacts (40 CFR 1508.27--definition of 
``significantly''). In this case the EAs reveal no significant negative 
environmental impacts, and NMFS believes the EAs satisfactorily address 
NEPA. Economic impacts need be evaluated only when required as part of 
the process of preparing an EIS, not as a reason for doing one. (See 40 
CFR 1508.14, ``This means that economic or social effects are not 
intended by themselves to require preparation of an environmental 
impact statement. When an environmental impact statement is prepared 
and economic or social and natural or physical environmental effects 
are interrelated, then the environmental impact statement will discuss 
all of these effects on the human environment.'') Finally, a belief 
that the take prohibitions do not go far enough to stop activities that 
harm the environment is not an argument for an EIS.
    Comment 90: One commenter stated that NMFS incorrectly asserts in 
the EAs that all environmental effects resulting from actions that 
respond to the ESA 4(d) rule are the independent analytical burden of 
state and local governments and NMFS will not need to consider or 
address them. They further stated that NMFS must grapple with the 
environmental effects of its proposed actions, many of which will be 
negative for irrigation, noxious weed control, use of pesticides, 
livestock grazing, etc.
    Response: NMFS agrees that this statement in the EAs should have 
been drafted more clearly. It must be read in the context in which it 
appeared. The immediately preceding sentence stated ``In addition, any 
future regulation, policy, program, or plan that NMFS feels is 
protective of [listed salmonids] and for which NMFS limits the section 
9(a) prohibitions, will further reduce the impacts of the 4(d) rule.'' 
In that context, the following modified statement would have been 
clearer: ``All of the potential impacts attributable to any future 
limits will be due to those state or other governmental regulations, 
policies, programs, or plans, rather than to the 4(d) take 
prohibitions.''

Economics/Regulatory Flexibility Analysis

    Comment 91: Several commenters raised issues related to E.O. 12866, 
and stated that NMFS should do a cost/benefit analysis on the 
promulgation of this rule.
    Response: NMFS has prepared a Regulatory Impact Review (RIR), which 
is available on our web site at www.nwr.noaa.gov. Some of the comments, 
however, were based on a misunderstanding of the legal effect of this 
4(d) rule and were made in the belief that the rule mandated compliance 
with particular limits. That is not so; this 4(d) rule does not (for 
instance) mandate watershed conservation plans. This final rule 
provides a limit on the take prohibitions for habitat restoration 
activities consistent with watershed conservation plans that meet 
certain standards, but does not require any person or entity to prepare 
watershed plans or pursue that limit; they may avoid violating the take 
prohibition by whatever mechanism they choose.
    Comment 92: One commenter stated that in addition to demonstrating 
how each limit contributed to recovery, NMFS should discuss economic 
and social impacts of each limit.
    Response: It is NMFS' responsibility to assess the economic impacts 
of the regulation overall; those impacts accrue from the take 
prohibition, not from the limits. NMFS completed an initial regulatory 
flexibility analysis (IRFA) and made it available for public comment 
through the proposed rules. Based on comments received, NMFS has 
broadened many of the limits to make them available to more 
jurisdictions, or to simplify the processes associated with them. For 
instance, the road maintenance limit is now available to any state, 
city, county or port. The development limit is available for any city, 
county, or regional ordinances or plans that cover development, or 
categories such as wetland or shoreline regulation. NMFS has 
supplemented the IRFA to consider some additional categories of 
economic activity, such as real estate, as well. The Final Regulatory 
Flexibility Act concludes that at the present time there is no legally 
viable alternative to the modified rule that would have less impact on 
small entities and still fulfill the agency's obligations to protect 
listed salmon and steelhead.
    Comment 93: One commenter stated that NMFS should (and failed to) 
consult with every state and local entity regarding effects of the 
rules on those entities.
    Response: The huge number of such entities within the geographic 
range covered by this rule makes such consultation far beyond NMFS' 
resources. However, NMFS held 25 public hearings, accepted comment on 
the rules for 60 days, and after publishing the proposed rules, held 
three workshops for state and local government officials in Olympia and 
the Tri-Cities in Washington and in Salem, Oregon. More than 150 city, 
county, and state jurisdictions participated in these workshops.
    Comment 94: One commenter stated that the IRFA was inadequate in 
its analysis of alternatives, and that it ``fails to even list'' the 
small businesses related to residential and commercial development in 
its Table of Sectors.
    Response: NMFS stands by the IRFA and affirms that it presents as 
much information on the possible effects of the take prohibition as 
could be obtained through any reasonable means. Moreover, comments were 
solicited on the proposed rules, but NMFS received none suggesting 
additional sources of relevant data. The IRFA Table of Sectors

[[Page 42439]]

included Heavy Construction and Highway and Street Construction, which 
would encompass a large proportion of the activity related to 
residential and commercial development. We have also added information 
on real estate and rental leasing to the Final Regulatory Flexibility 
Analysis. In addition, the RIR discusses the implications of the 4(d) 
rule in the urban setting--including activities associated with 
residential and commercial development.
    Comment 95: One commenter stated that an independent third party 
should perform an analysis of the ESA 4(d) rules' economic impacts 
using economic information developed by the Federal Reserve. The 
commenter further stated that provisions for landowner compensation and 
exemption from property tax assessments must also be included as part 
of this rule.
    Response: There is no requirement for third party analyses, nor 
that NMFS use information from any particular source in its analyses. 
In fact, NMFS has searched broadly for economic information that might 
provide more quantitative estimates of the potential costs of avoiding 
take. The Federal Reserve does not develop such data. NMFS has no 
authority to provide for landowner compensation or to alter property 
tax assessments. One of the reasons for the approach taken in this 
final rule is NMFS' hope that by working with local and state 
government entities toward comprehensive ESA solutions, there will be 
smaller impacts on individual actors than might accrue from take-
avoidance strategies they might otherwise adopt. Also, as is the case 
for small landowners under the Forests and Fish Report strategy adopted 
by Washington and recognized in this final rule, in some circumstances 
local or state governments may elect to provide offsetting 
compensation.
    Comment 96: Several commenters disagreed with aspects of the IRFA 
prepared for the proposed rules. A major concern was that the rule 
requires extensive reporting and paperwork.
    Response: This final rule requires only one thing: that actors 
refrain from taking listed fish. That performance standard does not 
require reporting. While taking advantage of a limit does require some 
level of paperwork, that course is not required; an individual or 
entity may choose simply to modify its actions to avoid take. 
Nonetheless, NMFS is aware that in some circumstances the paperwork 
burden is likely to increase and we stand ready to help streamline the 
process, give technical advice, and in general decrease that burden 
wherever we can.

Recovery/Delisting

    Comment 97: Many commenters raised issues regarding the timing of 
and relationships between ESA 4(d) rules and recovery planning. Several 
stated that NMFS should move forward quickly to develop recovery plans 
for listed species. Some requested that NMFS publish de-listing goals 
concurrent with the publication of the final 4(d) rules or withdraw the 
4(d) rules until a recovery plan was complete. Related comments 
questioned whether, in the absence of recovery goals, NMFS could 
adequately assess the contribution to recovery made by the programs 
approved as limits on the take prohibition. Other commenters wondered 
whether the establishment of de-listing goals would require NMFS to 
reevaluate limits already approved or change the standards for 
evaluating additional limits. One commenter expressed concern that 
future recovery plans would simply ``rubber stamp'' 4(d) rules and 
their limits.
    Response: Recovery planning, as required by ESA section 4(f), is 
one of NMFS' highest priorities, and NMFS agrees that it is important 
to move forward quickly to establish recovery plans for listed species. 
NMFS does not agree that it is either necessary or advisable to publish 
de-listing goals and final recovery plans concurrently with, or prior 
to, the final 4(d) rules.
    There are no statutory or regulatory requirements regarding the 
timing or relationships between 4(d) rules and section 4(f) recovery 
plans. In fact, the basic structure of the ESA itself provides that the 
protective mechanisms of sections 7 and 10 take effect upon the listing 
of a species as threatened or endangered while recovery planning 
follows its course through subsequent activities. Recovery plans will 
provide biological goals for recovery and identify an entire suite of 
actions needed for recovery. Thus, they may provide a more specific 
framework for future 4(d) rules or amendments, but the essential 
protective function of 4(d) rules is independent of recovery plans; 
that function is to prohibit take of listed species where needed. If 
the 4(d) rules were not promulgated until de-listing goals were 
developed or recovery plans completed, the species would be placed at 
unacceptable risk, and more stringent and costly measures would be 
necessary to save them.
    Moreover, by applying the VSP and PFC concepts it is possible to 
make judgments about the contributions certain programs make to 
recovery. These judgments will not prejudice the comprehensive recovery 
planning process.
    For habitat actions, NMFS may find that it is not necessary or 
advisable to apply the take prohibition to programs that will help 
attain or protect properly functioning habitat. For FMEPs, NMFS may 
find it is not necessary or advisable to apply the take prohibition 
when the program contains specific management measures that adequately 
limit take and otherwise protect the ESU. For Hatchery and Genetic 
Management Plans (HGMPs), NMFS may find that it is not necessary or 
advisable to apply the take prohibition when a plan is designed to 
minimize and adequately limit take and promote species conservation. 
NMFS believes that these standards are all consistent with recovery, 
and expects that most programs approved as limits will provide a 
foundation for later recovery planning measures. NMFS also anticipates 
that the VSP and PFC concepts will continue to evolve and provide the 
analytical framework for evaluating potential limits and recovery 
measures.
    Through the process of recovery planning, NMFS may develop more 
specific information about measures needed for recovery or about 
specific areas needing more prescriptive attention. In addition, each 
take limit incorporated into the 4(d) rules includes provisions for 
continued review of its implementation and effectiveness. Thus, NMFS 
intends to continually reevaluate the limits. If these evaluations, or 
information developed through recovery planning, or any other 
information, indicates that a limit is inadequate for recovery, NMFS 
will revisit the limit.
    Finally, NMFS is moving forward as quickly as resources allow to 
develop recovery plans. NMFS has appointed Technical Recovery Teams 
(TRTs) for Puget Sound and for the Willamette/Lower Columbia River 
Basins and Southwest Washington. These teams have begun to identify 
delisting goals. To conduct the more policy-oriented aspects of 
recovery planning, NMFS will work with state, local, tribal, and 
private entities to craft a recovery planning process suited to 
specific areas and situations. Formal recovery planning efforts will be 
expanded to additional geographic domains as resources permit.
    Comment 98: Several commenters addressed the issue of federal trust 
responsibilities to tribes in developing protection and conservation 
goals, plans, and measures. These commenters held that NMFS needs to 
make every effort to ensure that treaty rights and trust 
responsibilities are met through its

[[Page 42440]]

regulatory actions, and that thresholds, goals, and recovery plans 
support healthy, productive, and harvestable fish populations.
    Response: NMFS approaches the ESA 4(d) rules as a vital component 
of conserving the species until the protections of the ESA are no 
longer needed. These protections will no longer be needed only if the 
abundance of fish is sufficient to satisfy treaty fishing rights and to 
fulfill the trust obligations of the United States.

Cumulative Impacts

    Comment 99: A number of commenters questioned the reasoning behind 
NMFS including in the take guidance a category of activities that, 
while individually unlikely to injure or kill listed salmonids, may 
collectively have significant detrimental impacts. Commenters asserted 
that regulating such activities was beyond NMFS' purview. Others 
questioned how NMFS would enforce the prohibitions when take resulted 
from such activities.
    Response: NMFS agrees somewhat with this comment. The discussion of 
activities that do not cause take individually but that cumulatively 
may have significant detrimental impacts on salmonids was intended to 
be advisory and informative in nature and no enforcement actions in 
response on these activities were being contemplated. The category of 
activities raised a number of concerns however, and the language has 
been struck from the rule. Nonetheless, it is important to note that a 
myriad of decisions made by individuals and institutions on a daily 
basis, while negligible in the individual case, may have, in the 
aggregate, a significant detrimental impact on the ecosystem processes 
that support salmon and steelhead.
    Comment 100: Many commenters raised the issue of cumulative 
impacts. Some expressed concern that the 4(d) proposed rules did not 
assess the cumulative impact of all the take limits combined. Some also 
expressed concern that the individual take limits did not address 
cumulative impacts of activities covered under that limit. Several 
commenters requested that the final rules include an analysis of 
cumulative impacts as well as a mechanism for evaluating cumulative 
impacts caused by any future take limits. One commenter asked how and 
when NMFS would provide opportunities for the public to review and 
comment on ESU-wide assessments of cumulative take.
    Response: The suggestions regarding cumulative impacts have great 
merit, and NMFS is moving toward implementing a method for assessing 
total take across broad sectors. That function, however, would not be 
specific to the 4(d) context. Impacts on listed species accumulate from 
natural conditions as well as from illegal and unauthorized take and 
from actions to which the take prohibition does not apply because they 
fall in the realm of some other ESA mechanism (section 10 permits; 
section 7 consultations, or specific provisions of a 4(d) rule). 
Cumulative impact assessment is problematic because there are very few 
methods for adequately assessing cumulative impacts of habitat-
modifying activities. Nonetheless, NMFS has explicitly incorporated 
consideration of cumulative impacts into the 4(d) rules where feasible. 
For example, FMEPs will evaluate the cumulative mortality of all 
fisheries, and HGMPs will track the number of listed fish taken as 
broodstock. In addition, NMFS believes that by requiring habitat-
modifying activities within a limit to attain or maintain properly 
functioning condition, and all activities within a limit to contribute 
to viable salmonid populations, cumulative impacts are, to an extent, 
accounted for. Moreover, during the process of developing comprehensive 
recovery plans, NMFS and recovery teams will address the issue of 
cumulative impacts more systematically. The public will have the 
opportunity to comment on ESU-wide assessments of cumulative levels of 
take during the recovery plan public review process.
    Comment 101: A number of commenters recommended ways for NMFS to 
assess cumulative effects. One commenter asserted that meaningful 
assessments of cumulative risk at the ESU level would require linkage 
between VSP and PFC and development of a common method for evaluating 
the effects various activities have on populations and habitats. 
Another urged that NMFS adopt comprehensive habitat productivity 
standards to evaluate cumulative effects of habitat programs granted 
limits on the take prohibition. One commenter suggested that NMFS 
require all habitat-modifying activities to account for habitat-
modification-related mortality. Another suggested that NMFS focus on 
cumulative take rather than dealing with take in its various 
permutations individually. Another suggested that the rules should 
mandate an annual cumulative take assessment (based on life cycle 
stages) for each population in an ESU. In addition, they desired that 
NMFS (a) examine mortality in the various populations and determine 
whether take from a particular sector is placing them at risk, and (b) 
separate human-induced mortality from that attributable to fluctuating 
environmental conditions and thereby adjust take regulations to provide 
more protection during times of environmental stress.
    Response: NMFS agrees that all of these suggestions have great 
merit and, as mentioned previously, NMFS is moving toward implementing 
a method for assessing total take across broad sectors. Also, as 
mentioned earlier, assessing cumulative impacts is a difficult process. 
In most cases, there are no adequate standards for habitat productivity 
and developing them is a complex and long-term task. NMFS intends to 
work with co-managers to develop the necessary standards and assessment 
techniques. In addition, during the ESA recovery planning process, NMFS 
will assess the mortality burdens for each ESU and life-cycle stage.
    Comment 102: One commenter asserted that limits for urban 
development should be analyzed within the cumulative impact context.
    Response: NMFS agrees that cumulative effects should be an 
important consideration in analyzing the effects of MRCI development 
and redevelopment. To the extent that NMFS must prioritize the 
evaluation process, comprehensive MRCI plans with relatively broader 
scopes of activities, authorities, effects, and geography (and 
therefore greater cumulative effects) will generally be evaluated 
before plans with relatively smaller scopes. Applicants with smaller-
scale plans should take particular care that their effects analyses 
take cumulative impacts into account.
    Comment 103: Several commenters questioned whether NMFS had 
completed requisite cumulative effects analysis under ESA section 7 and 
NEPA.
    Response: NMFS has complied with section 7 consultation 
requirements on the adoption of the 4(d) rules by consulting both 
internally and with FWS. In addition, NMFS has completed an EA for this 
action pursuant to NEPA.
    Comment 104: One commenter asserted that the cumulative impacts 
consideration required by Sec. 223.203(b)(8)(iii)(A) is unreasonable 
due to lack of clear scientific consensus on how to do so.
    Response: Cumulative impacts analysis has been routinely required 
by NEPA, ESA, and many other Federal and state authorities for several 
decades and NMFS does not believe it presents an insurmountable 
obstacle to development of acceptable watershed

[[Page 42441]]

conservation plans (WCPs). In fact, it would be difficult to complete 
an adequate watershed analysis without having considered cumulative 
impacts. NMFS is confident that state WCP guidelines will be able to 
offer sufficient technical advice so that entities developing WCPs will 
be able to meet the cumulative impacts requirement.
    Comment 105: Some commenters held that the rules failed to regulate 
activities consistent with their incremental effects, and that the 
effect of the rules would be to focus NMFS staff time on urbanized 
areas, while greater benefit could be gained by identifying habitat 
areas where the most good could be achieved at the least cost, and then 
bringing Federal, state, and local resources to bear upon those areas. 
Other commenters expressed concern that the rules would 
disproportionately regulate the impacts of habitat modification 
compared to the impacts of harvest activities.
    Response: NMFS does not believe that the 4(d) rules fail to 
regulate activities consistent with their incremental effects. The 4(d) 
rules ``regulate'' primarily by putting into place the ESA section 9 
take prohibitions. This take prohibition applies to all activities, 
regardless of their incremental impact on a listed species. The rules 
then identify certain activities that already conserve the species and 
for which no additional ESA regulation (i.e., take prohibitions) are 
necessary. These activities span a broad range and include research, 
aiding stranded salmonids, managing harvest and hatcheries, and land 
uses such as forestry, development, and road maintenance. NMFS hopes to 
continually expand the scope of these limits to encompass additional 
activities not currently addressed by limits, wherever such efforts are 
biologically warranted.

Limits for Scientific Research and Rescue/Salvage

    Comment 106: Several commenters stated that the ESA 4(d) limit for 
scientific research activities (research limit) would place excessive 
reporting requirements on state fisheries agencies and that these 
agencies lacked the funding and staffing to accommodate the additional 
workload.
    Response: NMFS acknowledges that, as a result of promulgating the 
take prohibitions, state fisheries agencies will now have a higher 
level of accountability for reporting take of listed salmonids and that 
some ESA-related reporting will be new for these agencies. However, all 
of the affected agencies currently oversee research permit processes 
for fish sampling in state waters and NMFS believes that the workload 
associated with this limit should be comparable with state reporting/
recordkeeping requirements already in place. Much of the information 
NMFS is requiring under the research limit is currently generated by 
the state's permit process, which presently covers all entities (e.g., 
Federal, academic, private, and other state agency researchers) other 
than biologists employed by the state fisheries agency. However, these 
agency biologists typically produce research summaries that NMFS 
believes could be efficiently translated into the annual state reports 
supporting this limit.
    Moreover, a major impetus for providing the research limit is to 
allow the state fisheries agencies to continue to oversee and 
coordinate research efforts for listed salmonids. The ESA's section 10 
permitting process does not always facilitate state oversight/
coordination and NMFS believes that it is advisable to minimize 
research impacts by streamlining the research review process in a 
manner that fosters active participation by state fisheries agencies. 
It is worth noting that as a result of previous 4(d) rulemaking (50 CFR 
223.204(a)(4)), ODFW has successfully coordinated and reported 
scientific takings per a 1997 research limit involving listed coho 
salmon in southern Oregon. NMFS will work closely with all of the 
affected states and research entities to expand on this success while 
minimizing the reporting workload by incorporating existing state 
processes into those supporting the 4(d) limit for scientific research.
    Comment 107: Some commenters asked whether research involving 
direct take of listed salmon and steelhead would still require a 
section 10 permit and whether incidental take would be covered under 
the ESA 4(d) rule.
    Response: Research and monitoring activities involving either 
directed or incidental take of the 14 ESUs identified in this rule are 
covered by this 4(d) limit. Therefore, state-approved activities 
covered by this limit would not need to go through a separate section 
10 permit process. However, if the research is not covered by the 
research limit, then an applicant would need to obtain an ESA section 
10 permit before conducting research that could take a listed salmonid.
    Comment 108: Several commenters were confused by the language 
describing provisions under ``Continuity of Scientific Research'' and 
requested clarification as to what applications were needed and when 
take prohibitions would become effective.
    Response: As described in the proposed rules, NMFS is concerned 
with the potential for disrupting ongoing scientific research, 
monitoring, and conservation activities, especially during the coming 
summer/fall field seasons. Therefore, the agency is providing a 
temporary limit on the take prohibitions to allow such activities to 
continue until March 7, 2001 so that the necessary paperwork can be 
processed. However, to qualify for this ``temporary'' limit, 
researchers must submit a section 10 permit application to the 
Assistant Administrator for Fisheries (AA), NOAA by October 10, 2000 
for research activities affecting listed fish in any of the 14 salmon 
or steelhead ESUs identified in this rule. Applicants would be subject 
to take prohibitions only after their permit application is denied, 
rejected as insufficient, or the ``temporary'' limit period expires, 
whichever occurs earliest. Researchers failing to submit an application 
by October 10, 2000 would be subject to take prohibitions beginning on 
September 8, 2000 for the seven steelhead ESUs and on January 8, 2001 
for the seven salmon ESUs. NMFS will make every effort to respond to 
applicants in a timely fashion. However, researchers are advised to 
prepare for unavoidable delays that may result from the anticipated 
load of section 10 permit applications that will be presented to NMFS.
    Parties requesting coverage under the ESA 4(d) limit on scientific 
research activities should consult with the ODFW, the California 
Department of Fish and Game (CDFG), the Idaho Department of Fish and 
Game (IDFG), or the Washington Department of Fish and Wildlife (WDFW) 
to determine when related applications are due to these oversight/
coordination agencies. By October 10, 2000, NMFS will expect these 
agencies to submit a letter of intent to the AA, NOAA, summarizing the 
types of research to be covered under the 4(d) limit for any of the 14 
salmon or steelhead ESUs identified in this rule. This letter will 
serve as a placeholder for these agencies (and the entities identified 
in their letter) until they can submit to NMFS a more comprehensive 
assessment of scientific research activities planned for the 2001 
research season. Take prohibitions for these applicants would become 
effective after their application for the 4(d) limit is either rejected 
by NMFS or the ``temporary'' limit period expires, whichever occurs 
earliest. Applicants failing to submit a letter of intent by October 
10, 2000 would be subject to take prohibitions beginning on

[[Page 42442]]

September 8, 2000 for the seven steelhead ESUs and on January 8, 2001 
for the seven salmon ESUs. NMFS will work closely with the affected 
state agencies and researchers to select suitable reporting time frames 
and minimize the disruption of research efforts.
    Comment 109: Several commenters requested that NMFS expand the ESA 
4(d) limit on scientific research activities to include research by 
tribal fisheries biologists. Others requested that NMFS include a 
regulatory obligation for the states and NMFS to include tribes in 
reviewing scientific research and monitoring efforts subject to the ESA 
4(d) limit.
    Response: NMFS has provided a separate 4(d) rule for Tribal Plans 
(including research and monitoring activities) (published elsewhere in 
this Federal Register issue) the purpose of which is to establish a 
process that will meet the conservation needs of listed species while 
respecting tribal rights, values, and needs. A tribe intending to 
conduct research-related actions that may take threatened salmonids 
could submit a Tribal Plan to NMFS for consideration under the 4(d) 
rules. In addition, tribes have the opportunity to have tribal research 
activities covered under the research limit for salmon and steelhead, 
so long as the activities are in accord with state reporting 
requirements specified in that limit.
    NMFS does not believe it is necessary to include a regulatory 
obligation under 4(d) that requires states to include a tribal co-
manager review and concurrence process for research/monitoring 
activities. There are ample opportunities--both formal and informal--
for Federal, state, and tribal co-managers to coordinate salmonid 
research and monitoring efforts and NMFS will continue to encourage 
such collaborative efforts. In addition, NMFS recognizes its 
responsibilities to confer with the tribes on ESA issues and will use 
this dialogue to ensure that tribal concerns are addressed. NMFS will 
make available to interested parties the documents describing the 
research and monitoring conducted under either the tribal 4(d) limit or 
the salmon/steelhead research limit.
    Comment 110: Some commenters stated that the research limit was too 
narrowly defined and should be expanded to apply to other state and 
non-governmental entities (e.g., state water quality agencies, 
watershed councils, and sportsman groups). Others requested that NMFS 
clarify what is meant in the research limit by ``oversight'' and 
``coordinated.''
    Response: NMFS believes that the state fisheries agencies are in 
the best position to oversee and coordinate scientific research and 
monitoring efforts involving listed salmonids. While other entities 
(e.g., other state agencies, academics, consultants, etc.) have 
considerable expertise in fisheries research, none have the clear 
management responsibility for salmonids that is vested with the state 
fisheries agencies. Moreover, NMFS is concerned that expanding this 
limit to include numerous entities would hinder the coordination of 
research efforts. NMFS encourages coordination as a means to minimize 
research impacts on listed salmonids while facilitating data exchange 
and interpretation.
    NMFS agrees that minor modifications to this limit's description 
will help clarify the agency's intent for ``oversight'' and 
``coordination.'' For example, with respect to ``oversight,'' NMFS does 
not believe that a state fishery agency must directly supervise or 
inspect every research project. Instead, NMFS intended that research 
efforts covered by the ESA 4(d) limit should merely be identified and 
approved by the appropriate state fishery agency. The identification 
and approval processes should constitute nominal extensions of the pre-
existing system for obtaining a state research/collection permit. In 
addition, NMFS' emphasis on ``coordination'' was to encourage the state 
fisheries agencies to establish and improve upon mechanisms for 
organizing research and monitoring of listed salmonids. Such 
coordination could occur at a state-wide level (e.g., the Oregon Plan 
for Salmon and Watersheds), at a level addressing a particular ESU 
(e.g., Washington's Hood Canal and Eastern Strait of Juan de Fuca 
Summer Chum Recovery Plan), or watershed. No matter what the level, 
however, the state fisheries agencies will still need to provide NMFS 
with the requisite annual reports. NMFS will continue to work with the 
affected states to better define the reporting requirements supporting 
this limit, maximize the information being gathered on fish and 
wildlife species (while minimizing impacts on threatened and endangered 
species), and ensure that sound research proceeds unencumbered by 
regulatory/permitting requirements.
    Comment 111: Some requested that this limit be made available to 
Federal researchers and asked for clarification on the relationship 
between this limit and ESA section 10 permits.
    Response: NMFS clarifies that Federal research and monitoring 
activities could be covered under the research limit. Federal lands 
encompass vast areas of salmonid habitat in the Pacific Northwest and 
California, and Federal research efforts contribute vital information 
about these species. Therefore, NMFS believes it is necessary and 
advisable to provide the opportunity for Federal researchers to receive 
coverage under the research limit. Such coverage would obviate the need 
for an ESA section 10 permit for these Federal researchers. Still, in 
deference to the need for close coordination with state and other 
efforts (plus the fact that Federal researchers will still need 
research and collection permits from the state fisheries agencies), 
Federal research will only be covered under the ESA 4(d) limit when 
that research is overseen by or coordinated with a state fisheries 
agency that is willing and able to report on the Federal research 
effort. Also, it is important to note that coverage under the research 
limit would not relieve Federal agencies of their duty under section 7 
of the ESA to consult with NMFS if actions they fund, authorize, or 
carry out may affect listed species.
    Comment 112: Some commenters contended that NMFS was placing 
unnecessary constraints on electrofishing as a sampling technique. 
Several requested clarifications and revisions to specific protocols 
described in NMFS' ``Guidelines for Electrofishing Waters Containing 
Salmonids Listed Under the Endangered Species Act'' (NMFS, 2000a), in 
particular they sought revisions in the guidelines pertaining to 
numeric standards/settings and documenting crew experience and sampling 
history. One commenter requested that NMFS expand the limit and 
guidelines to address electrofishing from boats.
    Response: NMFS contends that the guidelines are both reasonable and 
necessary for the conservation of listed salmon and steelhead ESUs. The 
literature is replete with evidence to support NMFS' concerns that 
electrofishing can be particularly harmful to salmonids and other 
fishes (see review by Nielsen, 1998). Before distributing the existing 
guidelines in 1998, NMFS held a workshop and distributed the subsequent 
guidelines for peer review. The resulting guidelines reflect reasonable 
and prudent measures for minimizing the adverse effects of 
electrofishing. NMFS will continue to encourage researchers to use 
other less invasive techniques (e.g., traps and snorkeling surveys), 
but recognizes that electrofishing has utility, or is the only 
practical alternative in certain study designs.

[[Page 42443]]

    With respect to specific concerns about the electrofishing 
guidelines, NMFS disagrees with most of the issues raised and believes 
that only minor modifications are warranted in these protocols. For 
example, the agency disagrees with several commenters that requiring 
conductivity measurements would impose an onerous and costly burden on 
researchers. It is well known that water conductivity is one of the 
most critical parameters determining electrofishing impacts and 
conductivity meters are both inexpensive and readily available. The 
concerns that NMFS is requiring too much documentation (e.g., logging 
crew experience and data on sampling results) are also unsound. Most, 
if not all, researchers record the time spent (e.g., time counters are 
an integral part of most backpack units) and results of electrofishing 
surveys (e.g., numbers of fish encountered, injuries observed, site 
conditions, etc.). These logs aid fish by helping to improve the 
researcher's technique and can form the basis for training new 
operators.
    With respect to boat electrofishing, NMFS has serious concerns with 
this technique because it has even greater potential for seriously 
injuring listed salmonids. For example, the technique can employ 
electrical output that is an order of magnitude greater than backpack 
electrofishing units, and environmental conditions can seriously limit 
a researcher's ability to minimize impacts on listed fish (e.g., adult 
salmonids in large and turbid stream reaches). NMFS has not developed 
suitable guidelines for this sampling technique and will continue to 
request that researchers desiring to employ electrofisher boats apply 
to NMFS via the ESA section 10 permit process.
    Comment 113: Some commenters requested that NMFS clarify which 
entities would be covered under the limit for rescue and salvage 
actions and better define what constitutes an ``emergency'' under this 
limit. One commenter requested that NMFS specifically allow 
electrofishing under the rescue/salvage limit.
    Response: The regulations pertaining to this limit state that 
rescue/salvage can be conducted by ``any employee or designee of NMFS, 
FWS, any Federal land management agency, IDFG, WDFW, ODFW, CDFG, or any 
Tribe.'' A designee of the listed entities is any individual that the 
Federal or state fishery agency, or other co-manager has authorized in 
writing to perform the rescue/salvage.
    While it is not possible to characterize all scenarios constituting 
an ``emergency'' for listed salmonids, fish strandings resulting from 
natural or human-induced events are probably the most common type 
encountered. For example, an emergency condition may exist as a result 
of dewatering (e.g., for irrigation), damming, drought conditions, or 
when listed fish become stranded in channels or ponds following a flood 
event, landslide, or debris torrent. Chemical spills associated with 
industrial effluents or vehicular accidents (e.g., train or automobile 
accidents) have also been known to create an emergency for salmon and 
steelhead. These are just a few examples of scenarios that the 
employees or designees might face. Obviously professional judgement 
will need to be applied at the scene of an emergency to determine if 
and how listed fish should be rescued.
    NMFS concurs that electrofishing is permissible when there is no 
better technique for safely removing stranded fish under the rescue/
salvage limit. However, the electrofishing should be conducted in 
accordance with NMFS' backpack electrofishing guidelines.

Fishery, Hatchery, and Genetic Management Activities

    Comment 114: Some commenters stated that the proposed ESA 4(d) 
rules potentially grant broad exemptions for taking listed species in 
hatchery programs and fisheries and that these limitations should be 
omitted or tightened to better control hatchery and harvest practices.
    Response: The final rules establish explicit criteria and standards 
that hatcheries and harvest activities must adhere to in order for them 
to be eligible for limitations on section 9 take prohibitions. The 
criteria include detailed plans, risk assessments, and monitoring and 
evaluation and are similar to what has been required for section 10 
permits in the past. The Fishery Management Evaluation Plans (FMEPs) 
and Hatchery Genetic Management Plans (HGMPs) will be evaluated using 
the same standards used to examine section 10 permit applications. The 
limits for hatcheries and harvest will not decrease the level of 
protection for listed species.
    Comment 115: There was general support for the concepts detailed in 
the technical document ``Viable Salmonid Populations.'' However, there 
was much concern over how to apply these concepts in actuality. A 
number of commenters stated that in most cases there would not be 
enough information to determine population structure and abundance 
thresholds. Many commenters thought VSP should be implemented through 
NMFS' recovery planning efforts.
    Response: NMFS realizes that a substantial amount of information 
needs to be generated in order for FMEPs and HGMPs to be consistent 
with the ``Viable Salmon Populations'' technical document. Ideally, 
that information would arise out of the technical phase of the recovery 
planning process. However, even if all the data are not yet available, 
the concepts contained in VSP are valid and will still be used to help 
develop and evaluate FMEPs and HGMPs. Determining ``critical'' and 
``viable'' thresholds in the management plans allows actions to be tied 
to the status of listed fish in a particular population or management 
unit. If a population or management unit is at critical levels, actions 
must be strictly controlled and not impede recovery. At viable levels, 
the population or management unit is healthy and more flexibility 
exists for fisheries and hatchery management. NMFS will work with the 
co-managers to apply VSP to the greatest extent possible for any given 
management unit. As additional monitoring and evaluation are completed 
in the future and as recovery plans are developed, the FMEPs and HGMPs 
will be revised.
    Comment 116: Some commenters suggested that no progeny of listed 
fish that were spawned in a hatchery should be considered listed under 
the ESA.
    Response: Listed fish may be taken into a hatchery for spawning as 
a last resort to conserve the species. Before this can occur, an 
approved HGMP or ESA section 10 permit must be obtained. The HGMP or 
section 10 permit specifies the number of listed fish that can be taken 
into the hatchery. The status of the (artificially propagated) progeny 
of these fish is determined at the time the species is listed (i.e., 
stated in the final listing determination). If the hatchery program is 
part of an ESU where the progeny of listed fish spawned in a hatchery 
are considered to be listed, NMFS may proceed through rulemaking to 
delist hatchery progeny once an HGMP or section 10 permit is in place.
    Comment 117: Some commenters questioned the strategy of restricting 
steelhead fisheries to areas where only hatchery-marked steelhead are 
expected to occur and prohibiting the retention of listed steelhead. It 
was asserted that this policy could be a disincentive for local 
recovery efforts because healthy, naturally reproducing populations of 
fish could not be utilized if the population recovers.
    Response: NMFS agrees that recreational fisheries should not be

[[Page 42444]]

limited to streams where only hatchery fish are present. NMFS intends 
to manage fisheries based upon a listed ESU's status and a given 
fisheries' impacts on that status. The ultimate goal is to recover and 
maintain natural, self-sustaining ESUs so that ESA protections are no 
longer necessary. Under the VSP concept, if a steelhead population has 
recovered to viable abundance levels, more harvest impacts could be 
allowed than would be advisable for an adjacent population whose status 
is poor.
    Comment 118: Several commenters requested clarification on the 
meaning and purpose of sanctuary areas, and some questioned the 
rationale for not requiring the designation of sanctuary areas in FMEPs 
under the salmon ESA 4(d) rule, but requiring them in FMEPs under the 
steelhead 4(d) rule. (Note: the proposed 4(d) rule for salmon (65 FR 
170, January 3, 2000) was published separately from the proposed rule 
for steelhead (64 FR 73479, December 30, 1999). The two proposed rules 
have been combined in this final rule.)
    Response: NMFS defines sanctuary areas in the FMEPs as areas that 
are closed to fishing. NMFS' intent is to provide areas where juvenile 
and adult fish are not exposed to any fishing-related pressure or 
mortality (including catch and release fisheries, which can have an 
associated incidental mortality). Tributary streams or stream reaches 
that are the primary, core areas where listed fish spawn and rear in a 
given watershed would be good areas to designate as sanctuaries.
    Establishing sanctuary areas is especially important for species 
(like steelhead) that can spend several years rearing in fresh water 
and may be exposed to multiple fishing seasons. Juvenile salmon are 
generally less vulnerable to fishing because they typically emigrate to 
the ocean by the time they are one year old. However, some juvenile 
salmon (e.g., sockeye) can also exhibit extended freshwater residence. 
NMFS agrees that sanctuaries should also be included in the FMEPs 
developed for the listed salmon ESUs. The extent of the existing (and 
future) sanctuary areas for juvenile and adult fish will be evaluated 
on an ESU-by-ESU basis when the FMEPs are reviewed.
    Comment 119: One commenter contended that sanctuaries may be 
difficult to establish in many California river systems (e.g., Central 
Valley streams) and asked how many sanctuaries would be needed to get 
NMFS' approval of an FMEP.
    Response: NMFS agrees that it may be difficult to designate 
sanctuaries in the Central Valley system given that the majority of 
historical habitat is now inaccessible to fish. However, there are 
other accessible river systems inhabited by the three steelhead ESUs 
covered by this ESA 4(d) rule that currently do not offer sanctuary 
protection in critical spawning and rearing habitats. The FMEP process 
will allow NMFS to work with co-managers in establishing angling 
sanctuaries in these areas to further protect and conserve steelhead 
while still allowing appropriate angling opportunities to proceed. The 
appropriate numbers of sanctuaries will arise out of the FMEP 
development process.
    Comment 120: Some commenters questioned whether the FMEP process is 
necessary for sport angling and contended that developing elaborate 
FMEPs is not the best use of limited technical and restoration 
resources.
    Response: The FMEP process will make it easier to work with the co-
managers in making sure that sport fishing activities comply with the 
intent of this limit. While the amount of information that NMFS 
requires for FMEP approval will be similar to information required for 
an ESA section 10 incidental take permit, the FMEP route provides a 
longer-term framework for fisheries management and is thus more 
efficient over time in addressing recreational fishing impacts on 
listed species.
    Comment 121: Some commenters requested that recreational fisheries 
in California receive a limit on the take prohibitions because they are 
likely to have only minor impacts on listed species.
    Response: NMFS recognizes that CDFG has instituted conservative 
fishing regulations in many of the steelhead-bearing streams found in 
California. These regulations allow for continued angling 
opportunities, where appropriate, while providing some level of 
protection for listed steelhead through gear, season, and area 
restrictions. Although take associated with modern recreational 
fisheries has not been identified as a major reason for the depressed 
status of many California steelhead ESUs (NMFS, 1996), there is still a 
general lack of monitoring from which to derive reliable quantitative 
estimates of impacts in selected steelhead streams (e.g., Antelope, 
Deer, and Mill Creeks in the Central Valley steelhead ESU). In 
addition, take provisions and angling regulations may need to be more 
restrictive in areas where habitat conditions are not properly 
functioning and angling pressure would exacerbate the risks faced by a 
listed population. An approved FMEP would provide the means to identify 
these monitoring gaps and open the way for agreements with co-managers 
on instituting appropriate measures and securing funding sources.
    Comment 122: NMFS should not require FMEP monitoring that is 
physically or fiscally impractical.
    Response: NMFS agrees with this comment and will make every effort 
to work cooperatively with co-managers to identify resource monitoring 
and assessment requirements on an ESU-by-ESU basis. The required level 
of monitoring will be tied to a population's status and the degree to 
which a specific fishery poses risks to that population. There is 
sufficient flexibility in the ESA 4(d) rule to accommodate the 
immediate staffing and funding shortfalls. One of the integral parts of 
the FMEP process, however, will be to identify the level of monitoring 
and assessment needed to adequately address the impacts of recreational 
angling on listed species in a given ESU. Strategies for prioritizing 
monitoring needs based on funding and staffing capabilities will be 
stipulated in letter of concurrence NMFS crafts in response to an 
approved FMEP.
    Comment 123: Several comments addressed the use of barbed hooks in 
recreational fisheries for trout and steelhead. One commenter 
questioned the scientific basis for disallowing barbed hooks in adult 
steelhead fisheries. Other commenters believed that catch and release 
mortality could be significantly reduced by requiring the use of 
barbless hooks.
    Response: The available scientific data have not shown that using 
barbless hooks consistently or significantly reduces catch and release 
mortality in trout and steelhead fisheries, and the ESA 4(d) rule does 
not require barbless hooks in recreational fisheries. However, NMFS 
believes certain fishery situations could warrant the use of barbless 
hooks to minimize potential impacts on listed fish.
    Comment 124: Several commenters were concerned with language in the 
ESA 4(d) rules relating to restrictions on resident species fisheries. 
Some contended that restrictions should be placed on any fishery 
(resident or anadromous species) that substantially affects listed 
fish. Others believed the restrictions to be excessive and stated that 
NMFS should more fully assess the impacts of resident species fisheries 
on listed salmon and steelhead.
    Response: All fisheries that potentially affect listed salmon and 
steelhead must be evaluated in the appropriate FMEP. NMFS' intent is to 
point out the fact that some resident species fisheries can affect 
listed fish. In these circumstances, the FMEP must

[[Page 42445]]

include angling regulations for resident species fisheries that 
minimize any take of listed species. An FMEP may also include 
restrictions on anadromous fisheries to ensure that listed species are 
conserved.
    Comment 125: One commenter stated the need to clarify certain 
definitions used in relation to the hatchery programs. It was asserted 
that several hatchery programs still have definitions of ``natural'' 
fish that seriously obscure the differences between wild and hatchery-
produced fish. The commenter stated that the HGMPs should address this 
problem.
    Response: NMFS agrees with this comment. Therefore, to clarify, 
NMFS generally uses the terms ``natural'' and ``hatchery'' to describe 
the origin of anadromous fish following the definitions found in Bjornn 
and Steward (1990): hatchery fish are those that, regardless of parent 
stock, have been spawned, incubated, hatched or reared in a hatchery or 
other artificial production facility. Naturally produced fish are those 
that result from natural spawning in streams. As Waples (1991) stated, 
the terms wild and natural are used synonymously to refer to naturally 
produced fish without regard to the origin of the parent stock.
    Comment 126: The HGMP and FMEP templates should be referenced in 
the 4(d) rules.
    Response: This suggestion has merit and language in this final rule 
has been duly altered. The templates are available on NMFS' Northwest 
Region website (www.nwr.noaa.gov).
    Comments related to the criteria established for FMEPs and HGMPs
    Comment 127: Some commenters questioned the assertion in the 
harvest limit that at critical threshold levels, harvest actions must 
not appreciably increase the genetic and demographic risks facing the 
population. They stated that this policy does not ensure the 
conservation of listed species and that any populations that are at 
critical threshold levels should not be put at risk. They asserted that 
harvest should be very restricted or totally eliminated when a 
population reaches critical levels.
    Response: When a population within a listed ESU is at critical 
levels, impacts from fisheries must be strictly controlled. No fishery 
will be allowed under the ESA which jeopardizes the continued existence 
of an ESU. In some cases it may be necessary to close or curtail 
fisheries to protect listed fish. The intent of this language was to 
realize that incidental harvest may occur even under a tightly 
regulated fishery regime. Anadromous salmonids have a vast migratory 
distribution and may be incidentally intercepted in fisheries occurring 
in other regions. NMFS will evaluate FMEPs to ensure that the harvest 
regime will protect individual populations and allow the ESU to recover 
before being approved.
    Population-level assessments under the ESA are meant to provide 
information on abundance, productivity, structure and diversity 
specific to each population, and are essential to determining an ESU's 
overall health. However, under some circumstances the ESU as a whole 
may be viable even though some individual populations have not fully 
recovered. NMFS and the TRTs appointed to help develop de-listing 
criteria will determine which, where, and to what degree populations 
within an ESU must have ``viable salmonid population'' status to render 
adequate ESA protection at the ESU level.
    Comment 128: One commenter stated that no transgenic or genetically 
engineered fish should be allowed in waters where listed fish reside.
    Response: No action that jeopardizes the continued existence of 
listed species is permitted under the proposed 4(d) rules or any other 
section of the ESA. If NMFS assumes that ``transgenic or genetically 
engineered fish'' are not native species and determines that their 
introduction into waters where listed fish reside would not help 
recover listed species, these fish would likely be prohibited.
    Comment 129: Some commenters believed that the final rules should 
contain citations that demonstrate the validity (including associated 
risks) of supplementation as a tool for recovery. Some organizations 
are doubtful that supplementation is effective.
    Response: There is considerable scientific uncertainty regarding 
the extent to which benefit can be derived from supplementing naturally 
spawning populations with hatchery-produced fish. There are well-
publicized examples of domesticated, hatchery-produced salmon and 
steelhead having negative effects on natural production (Kalama River-
Skamania summer steelhead). There are also examples where artificial 
propagation of the local, indigenous, stock appears to have increased 
or sustained the number of naturally spawning fish (Imnaha and South 
Fork Salmon River summer chinook, Upper Columbia steelhead, Rogue River 
coho). The proposed HGMPs require programs to be designed using the 
best current scientific knowledge in order to identify and manage risks 
and provide benefits to the listed species. The HGMPs are required to 
identify goals, adopt performance standards, and conduct comprehensive 
monitoring and evaluation in order to help evaluate supplementation 
success and resolve any uncertainties about the practice.
    Comment 130: Some commenters stated that artificial propagation has 
failed to maintain wild fish populations and all hatchery programs 
should be discontinued.
    Response: Few of the original artificial propagation programs were 
designed to maintain wild populations. By developing and implementing 
HGMPs under the ESA, these programs will address wild population 
conservation and recovery. The risks and negative effects associated 
with artificial propagation programs are being identified and managed. 
It is true that artificial propagation has not been able to maintain 
wild anadromous fish when dam building, habitat loss, and fishing has 
continued at the established pace. Reforming hatchery practices is 
advisable, but discontinuing all artificial propagation is not 
necessary to restore natural fish under all circumstances. In many 
cases, hatchery programs are managed to minimize risks to wild 
populations while providing other benefits, such as supplying 
harvestable numbers of fish to meet treaty trust responsibilities.
    Comment 131: One commenter stated that NMFS should not use HGMPs to 
police compliance with court orders.
    Response: NMFS cannot approve an HGMP that does not comply with 
legal mandates established by statute or court order. This criterion is 
intended to remind the applicants that an HGMP must be legally as well 
as biologically complete.
    Comment 132: Several comments addressed the experimental nature of 
supplementation programs and the need for hatchery program goals to 
protect genetic diversity and individual wild fish stocks. Furthermore, 
specific concerns were raised about the need to ensure that monitoring 
and evaluation activities adequately protect listed fish.
    Response: NMFS agrees with the general thrust of these comments. 
Supplementation programs are viewed as being experimental; they can 
vary from program to program depending on the purpose of the program, 
the species targeted, stock status, and location. Because of 
supplementation's experimental nature, HGMPs assume an adaptive 
management approach for such programs by requiring extensive monitoring 
and evaluation. These activities must be able to identify deleterious 
effects on listed fish so the program can be modified. Furthermore,

[[Page 42446]]

HGMPs are designed to protect genetic diversity in wild populations 
(both listed and non-listed) by improving hatchery management, 
monitoring, and evaluation.
    Comment 133: Some commenters questioned how mining wild fish 
populations for broodstock contributes to recovery when a population is 
at or below the critical threshold.
    Response: When populations reach critical levels and the best 
available scientific information indicates that the demographic risks 
are greater than the genetic risks, using artificial propagation to 
prevent imminent extinction may be the least risky alternative. When 
populations are at or below the critical level, the only hatchery 
programs NMFS is likely to approve would be for the sole objective of 
enhancing the listed species' propagation and survival. If the cause of 
the decline is short-term, then the hatchery program could be reduced 
once the population exceeds the critical threshold. If the cause for 
the decline cannot be remedied in the short-term, the hatchery can act 
as a genetic broodstock bank and maintain the population until the 
causes for decline can be addressed.
    Comment 134: Some commenters had concerns about NMFS' decision 
making process in determining whether an HGMP adequately avoids or 
minimizes any deleterious effects. They desired to know how the 
standards for this determination would be set and sought an exact 
description of the monitoring program.
    Response: NMFS has developed a detailed HGMP template in 
collaboration with scientists from the other state and Federal agencies 
and treaty Indian tribes. The template is available on the NMFS 
Northwest Region's website at www.nwr.nmfs.gov. The template references 
many documents that provide guidance on artificial propagation in terms 
of setting performance objectives, identifying, evaluating, and 
managing risks, and monitoring results. NMFS' fishery scientists will 
review the HGMPs for completeness and adequacy. The HGMPs are also 
being used in sub-basin planning and in the Northwest Power Planning 
Council (NPPC) funding process where they may be subject to review by 
fishery scientists employed by Council staff as well as one or more 
layers of independent scientific review. The HGMPs will be available 
for public comment and peer review before they are approved. NMFS 
believes this process will help ensure deleterious effects are being 
adequately managed. However, all hatchery programs pose some degree of 
unavoidable risk to natural populations.
    Comment 135: One commenter suggested that hatcheries should produce 
as many fish as possible and held that there is no scientific basis for 
favoring natural fish over hatchery fish.
    Response: NMFS strongly disagrees. Hatchery fish have been 
identified as one of the factors causing population declines in a 
number of ESUs. There is a substantial body of scientific evidence to 
show that hatchery fish can harm natural fish by preying on them, 
competing with them for food, shelter and mates, displacing them from 
their native habitats, and creating other effects.
    Comment 136: One commenter stated that NMFS failed to address the 
issue of hatchery structures that can block fish passage.
    Response: Each HGMP will include a section describing the hatchery 
facilities. It will identify passage issues and water withdrawals and 
screening facilities. If passage is an issue, it can be addressed 
through HGMP implementation. Passage is also evaluated in ESA section 
10 permits for hatcheries.
    Comment 137: One commenter recommended that hatchery fish be 
protected in the 4(d) rules, not just wild fish.
    Response: The ESA emphasizes the restoration of listed species in 
their natural habitats. However, section 3(3) of the ESA specifically 
recognizes the potential for artificial propagation to help achieve 
rebuilding objectives. Specific protections for hatchery and natural 
fish reared in a hatchery are detailed in the HGMPs, especially if the 
hatchery program is used to supplement natural populations. In certain 
cases, NMFS has determined hatchery fish stocks to be essential to 
recovering the ESU and has listed them under the ESA.
    Comment 138: One commenter questioned how NMFS will determine 
whether a catch and release fishery is allowable.
    Response: Any selective fishery proposal, including those requiring 
that listed fish be released after being caught, will be evaluated 
based on its impacts on listed ESUs. The sum total of all fishery-
related impacts on a listed ESU will be considered in terms of its 
effects on population viability and, when applicable, within the 
structure of any existing HCP or recovery plan. No fishery that 
jeopardizes an ESU's continued existence or poses risk to key 
populations in that ESU will be allowed.

Specific Comments Related to FMEPs

    Comment 139: Several commenters desired to know how fishery 
mortality would be allocated and asked what the mechanism would be for 
treating ocean, mainstem river, and tributary harvest consistently. 
They asserted that all fishery related mortality should be accounted 
for.
    Response: Once take prohibitions are in effect, any fishery with 
the potential to impact listed fish is subject to NMFS' ESA review and 
approval process. All agencies proposing fisheries that have a 
potential to affect listed stocks are required to quantify these 
impacts. These agencies are required to comply with ESA review 
requirements and obtain take authorization through a 4(d) rule limit, a 
section 7 consultation, or section 10 permit application. Compliance is 
determined by tallying all fishery related incidental take from all 
agencies. Rigorous monitoring and evaluation programs ensure that 
impacts remain within acceptable limits.
    The FMEPs will specify adult escapement targets and harvest rates 
for each ESU. The purpose of the ESA 4(d) rules is to accommodate the 
listed species' biological needs, not to allocate harvestable surplus. 
That is a co-manager responsibility and is undertaken in a number of 
different venues.
    Comment 140: Numerous comments related to specific information and 
requirements included in actual FMEPs. The comments mainly addressed 
specific gear and season restrictions and the need to regularly review 
the FMEPs to ensure that they protect listed species.
    Response: The FMEPs will be evaluated under the same standard used 
for ESA section 10 permits: the proposed action(s) must not jeopardize 
the continued existence of the listed ESU. The FMEPs will specify the 
maximum exploitation rates--depending on listed fish abundance--or will 
specify escapement levels. Each FMEP will include the time frames for 
regularly reviewing it. Depending on the fishery's location and 
circumstance, specific angling regulations may be detailed in the FMEP 
(e.g., minimum length and bag limits for trout fisheries). In other 
cases (e.g., some salmon fisheries), the specific regulations may be 
adopted once the exploitation rate or catch quota is determined by 
examining pre-season run forecasts.
    Comment 141: Some commenters stated that maximum escapement 
objectives and reasonable exploitation rates should be specified in the 
FMEPs.

[[Page 42447]]

    Response: NMFS strongly agrees that escapement objectives must be 
determined for each fish stock and those objectives must be the 
fundamental drivers of fishery harvest management. Parties to U.S. v 
Washington and U.S. v Oregon should develop--through regional 
management plans and based on biological requirements and fishery 
needs--escapement objectives and exploitation rate targets for each 
stock or management unit.
    Comment 142: Several commenters suggested that all hatchery chinook 
should be marked and that selective fisheries should be required.
    Response: From an ESA perspective, several obvious and significant 
benefits derive from applying a visual mark to hatchery chinook--most 
notably the ability to easily monitor hatchery stray rates and 
differentiate hatchery fish from natural fish for stock assessment 
purposes. In addition, marking all hatchery fish can help managers 
evaluate productivity among hatchery and wild fish--an important piece 
of data for recovery planning. Because it now can be accomplished with 
machines on a massive scale and with relatively little impact on 
survival, the adipose fin clip achieves these benefits in a very cost-
effective and efficient manner.
    By enabling selectivity, mass marking may also provide the means 
for sustainable fisheries--clearly a very important objective. However, 
because a number of critical issues related to ongoing coded wire tag 
(CWT) programs remain unresolved, NMFS shares the view of its co-
managers that decisions made now to mass mark hatchery chinook are 
separate from decisions to be made later regarding selective fisheries. 
Even in cases where NMFS has required that a hatchery production run be 
mass-marked because of ESA concerns, this does not imply that a 
selective fishery will subsequently be endorsed. It is not NMFS' policy 
to require that all hatchery production be mass marked. Rather, our 
policy is that mass marking must be decided on a case-by-case basis 
after taking into account, among other things, the specific objectives 
of the hatchery production, the intended purposes of the mark, and the 
effect the hatchery production would have on fish listed under the ESA.
    Comment 143: One commenter asserted that any rulemaking must ensure 
that treaties will be respected and that harvestable numbers of fish 
result.
    Response: NMFS agrees. As several court cases have found, 
conserving and recovering listed stocks under the ESA to the point 
where they no longer need the protections of the ESA is entirely 
consistent with the long-term objective of having healthy harvestable 
populations and the exercise of treaty rights to fish and hunt. From a 
larger perspective, the greatest improvements in tribal fishing 
opportunity will not accrue over the short term but through the long-
term recovery of the populations. Federal trust responsibility is best 
fulfilled at this time by engaging in conservative fisheries 
management. At the same time, hatchery production can be used to 
provide harvestable fish if such programs can be shown to be consistent 
with recovering wild fish.

Comments Related to the Time Frame for Developing and Commenting on 
FMEPs and HGMPs

    Comment 144: Numerous agencies, organizations, and individuals 
commented that enough time must be allowed to develop and review the 
FMEPs and HGMPs. Several commenters suggested providing a grace period 
from several months to several years after the final rules are 
published for developing and approving FMEPs and HGMPs.
    Response: NMFS realizes the significant amount of work and time 
required to develop and process FMEPs and HGMPs. Therefore, NMFS is 
providing 6 months until take prohibitions go into effect for the 
listed steelhead ESUs to allow additional time to develop and approve 
FMEPs and HGMPs.
    In addition, NMFS has also provided a transition period of 6 months 
for recreational fisheries that affect listed steelhead. NMFS has 
assessed the angling regulations currently in effect for juvenile and 
adult steelhead in California, Oregon, Washington, and Idaho and has 
concluded that listed steelhead will be sufficiently protected during 
this 6-month period. This will allow additional time to develop and 
approve FMEPs for the steelhead ESUs. Some fisheries and hatchery 
programs will not need ESA coverage immediately after take prohibitions 
go into effect because the actions do not affect listed species. NMFS 
will work with the co-managers to prioritize fisheries and hatchery 
programs on the basis of how urgently each needs ESA coverage.

Comments Related to the Process of Reviewing/approving/implementing 
FMEPs and HGMPs

    Comment 145: Some commenters suggested that NMFS include a 
provision for independent scientific review of the FMEPs and memorandum 
of agreement (MOAs) between NMFS and the action agency.
    Response: As stated in the rules, the public will have the 
opportunity to review and comment on FMEPs and HGMPs for at least 30 
days before NMFS acts on them. During this comment period, independent 
scientific entities are invited to review and comment on FMEPs and 
HGMPs. NMFS intends to address the public comments with the appropriate 
co-manager before approving any plan.
    Comment 146: Some commenters wanted NMFS to define the ``regular 
basis'' on which limits will be evaluated. They also wanted to know 
what the time frames for reporting would be.
    Response: NMFS and the individual co-manager will decide on a case-
by-case basis the review and evaluation requirements for an approved 
FMEP or HGMP. The FMEPs and HGMPs will specify the time frames for 
regularly reviewing the plans and that information will be included in 
NMFS' letter of concurrence on the management plans. Depending on the 
circumstances, management plans may be evaluated every year or after 
analyses are complete. This will reasonably accommodate the time needed 
to prepare post-season catch and effort reports as well as any analyses 
the co-managers need for adjusting fishing regulations. However, 
whenever practical, the evaluation and review process should embrace an 
annual time frame so that appropriate adjustments may be made before 
the next fishing season.
    Comment 147: Some commenters were concerned that a final HGMP was 
not available at the time of the proposed rules and that the final 
criteria for HGMPs may be substantially different from those cited in 
the proposed ESA 4(d) rules.
    Response: The final draft of the HGMP template has been available 
to co-managers and posted on NMFS' web site since January of 2000. This 
template includes the information that must be included in the HGMPs 
for approval. Based on the public comments received, the criteria and 
the template for HGMPs have not changed substantially in the final 
rule.
    Comment 148: A few commenters stated that the process for approving 
a hatchery broodstock program should be clearly described.
    Response: NMFS believes the process is clearly described in the 
proposed and final rules. A state or Federal co-manager who wishes to 
utilize the ESA 4(d) process rather than the section 10 process must 
develop a detailed HGMP.

[[Page 42448]]

The HGMP must address the criteria in the 4(d) rule and follow the 
template NMFS has provided. The draft HGMP will be made available for 
public comment for at least 30 days. If NMFS determines the HGMP 
adequately addresses the established criteria, we will issue a written 
concurrence or, in the case of a Federal action, we will conduct a 
section 7 consultation. NMFS believes this process allows the public an 
adequate amount of time to review and evaluate a hatchery broodstock 
program before it is approved.
    Comment 149: One commenter pointed out that the assumption that 
average hooking mortality is less than 5 percent is based on only one 
study (Hooton,1987). Based on the scientific literature, they felt this 
rate to be low and recommended that NMFS further evaluate hook and 
release mortality rates in the literature.
    Response: NMFS agrees that hooking mortality deserves further 
investigation and we are committed to doing so. However, for now the 5 
percent rate reported in Hooton (1987) seems to constitute a reasonable 
average. Other studies do show higher mortality rates for salmonids 
when stream temperatures are elevated (Klein, 1965; Dotson, 1982; Titus 
and Vanicek, Taylor and Barnharnt, 1997), but for most conditions, 
Hooton's estimates are reasonably accurate.

Habitat Restoration Activities

    Comment 150: One commenter stated that NMFS itself should develop 
the WCP guidelines.
    Response: NMFS believes that the states are in the best position to 
perform the lead role in developing these guidelines. The geographic 
scope of this rule covers four states, an area over which biological 
and geological factors vary considerably. Even more importantly, each 
state's agencies, regulations, and conservation programs are unique and 
the WCP guidelines, to be effective, should be designed to fit within 
that unique context. The states' natural resource agencies have 
relatively large and expert staffs that are better prepared to interact 
with the entities that will use these guidelines. For these reasons, 
this limit remains founded upon the development of state WCP 
guidelines.
    Comment 151: Numerous commenters stated that the interim provisions 
of Sec. 223.203(b)(8)(ii) (in the proposed rule, 65 FR 170, January 3, 
2000) should be extended beyond 2 years, or were too permissive, or too 
restrictive. Many of these commenters proposed inclusion of specific 
activities that were not included in the six proposed interim 
provisions.
    Response: NMFS observes that the interim provisions of 
Sec. 223.203(b)(8)(ii) have been misunderstood to such an extent that 
NMFS has dropped these provisions from the final rule. The intent of 
these proposed interim provisions was to acknowledge that getting WCP 
guidelines and plans in place will require time, and the potential 
benefit to listed salmonids of allowing certain relatively low risk 
habitat restoration projects to proceed in the near term might outweigh 
the risk entailed by those activities not being part of a WCP.
    However, the interim provisions had been widely misperceived as 
detailed regulation of habitat restoration activities. NMFS did not 
intend to provide for the direct regulation of habitat restoration 
activities under the terms of this rule and regrets that the earlier 
proposal created this false impression. Accordingly, NMFS now deems it 
advisable to simply drop the interim provisions from this final rule. 
Many low risk activities (e.g., riparian exclosure fencing or native 
vegetation planting), simply do not carry an appreciable risk of 
taking. Activities involving instream construction or modification of 
the streambed or banks require CWA section 404 permits which carry ESA 
section 7 coverage. All habitat restoration activities will entail less 
risk and more benefit if they are part of an approved WCP, and NMFS 
encourages the timely development of WCP guidelines and plans. Habitat 
restoration projects are less likely to be successful if undertaken 
without supporting analyses that disclose habitat impairments and 
absent resource management adjustments within the watershed to redress 
the underlying causes of those impairments.
    NMFS strongly encourages jurisdictions, entities, and citizens to 
use the habitat restoration guidelines and technical manuals referenced 
in ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 2000) as readily 
available techniques to reduce the risks of harm or injury to the 
listed stocks. In the event that an allegation arose about a potential 
ESA section 9 violation, NMFS would furthermore take into account the 
efforts of the watershed group or entity to adhere to the relevant 
guidelines. Where injury or harm was resulting in such a circumstance, 
NMFS believes that the proper and most effective remedy would be an 
orderly adjustment in the relevant guidelines and not the prosecution 
of a section 9 violation against an individual project.
    Comment 152: Several commenters had questions regarding what 
entities are responsible for developing and implementing WCPs and what 
state agency is responsible for certifying the plans.
    Response: This final rule intentionally leaves these questions 
unanswered. There are potentially many different entities that may be 
responsible for developing WCPs in different circumstances--watershed 
councils, soil and water conservation districts, city or county 
governments, regional authorities, and so forth. NMFS finds it 
unnecessary to limit by rule what types of entities may produce and 
carry out WCPs. Likewise, NMFS leaves it to the individual states to 
determine the appropriate agencies for developing guidelines and 
certifying plans.
    Comment 153: Many commenters had concerns about the clarity and 
intent of the approval criteria for the WCP guidelines.
    Response: The criteria have been modified in this final rule to 
make them clearer and more effective.
    Comment 154: Some commenters suggested that Federal activities--
particularly habitat restoration activities--should receive a limit on 
the take prohibitions. CDFG suggested that restoration activities 
conducted under the Department's Fishery Habitat Restoration Program 
are already covered by their incidental take permit associated with 
their Corps of Engineer (COE) 404 permit consultation.
    Response: Federal agencies that engage in, permit, or fund 
activities that may affect listed species are required under section 7 
of the ESA to consult with NMFS. The ESA contains no provision to 
exempt Federal actions that involve habitat restoration activities from 
their section 7 obligations. Habitat restoration activities would only 
need to seek approval under this limit if they have more than a 
negligible likelihood of taking listed salmonids, and are not covered 
by any section 10 permit or section 7 incidental take statement.
    Comment 155: Several commenters were concerned that neither the 
states nor NMFS will have the necessary resources to handle such a 
large number of written approvals; also, some stated that it was 
inappropriate for a state or NMFS to review individual projects after 
having approved an overall plan.
    Response: NMFS agrees that the workload associated with approving 
all individual restoration projects and activities could overwhelm 
state and NMFS staff resources. In addition, activity-level review 
could defeat much of the process efficiency gained in the WCP approach. 
This final rule has been

[[Page 42449]]

changed to require only state certification of WCPs, and NMFS' approval 
of the state guidelines (with a periodic review of the state 
certification process to ensure that WCPs are adequately analyzed). 
Provisions for clearly identifying whether particular activities are 
part of an approved plan must be part of the plans themselves and need 
not necessarily involve state or NMFS staff directly.
    Comment 156: One commenter asserted that it is unclear which 
criteria NMFS will use in concurring with a state certification of a 
WCP.
    Response: NMFS has amended the final version of this rule to drop 
the requirement of NMFS concurrence with the certification of 
individual WCPs. NMFS expects the criteria for the relevant state 
certifications will be contained in the state restoration guidelines 
anticipated by this final rule, and will periodically review the 
states' certification process for appropriate rigor.
    Comment 157: One commenter proposed a stepwise approach toward 
making the transition from the specified activities of 
Sec. 223.203(b)(8)(ii) interim period to allow development of state 
guidelines and WCP to the WCP context of Sec. 223.203(b)(8)(i).
    Response: NMFS agrees with the commenter, and in response the 
interim provisions proposed as 223.203(b)(8)(ii) have been deleted from 
the rule.
    Comment 158: One commenter suggested integrating FMEPs and WCPs. 
Another stated that WCPs should be a part of the recovery planning 
process and not be evaluated piecemeal.
    Response: In essence, the first commenter is suggesting recovery 
plans, which NMFS agrees are necessary for the conservation of the 
species and intends to develop for listed salmon. However, NMFS does 
not believe that completed recovery plans are a necessary prerequisite 
for all habitat restoration activities. While the existence of an 
overarching recovery plan could make constituent watershed conservation 
planning both easier and more effective, it does not follow that 
adequate watershed conservation planning cannot be done prior to the 
existence of a recovery plan.
    Comment 159: Numerous commenters suggested that local governments 
should be recognized and allowed to develop guidelines and WCPs without 
state or Federal approval or the 2-year time line. A few commenters 
further questioned the scope and scale of the plans or pointed out the 
burden the process would place on local governments.
    Response: The 2-year interim period has been deleted from this 
final rule, so the time line for developing guidelines and WCPs is now 
entirely up to the states and the entities desiring to perform habitat 
restoration activities. NMFS recognizes and appreciates the efforts 
local authorities are putting forth in watershed planning and habitat 
restoration projects. Nevertheless, NMFS is not prepared to 
individually review and approve WCPs, and has dropped that requirement 
from the final rule. State technical guidance can certainly assist 
localities in watershed conservation planning, and local governments 
having the wherewithal to independently develop and implement WCPs 
should not have undue difficulty navigating the revised approval 
process.
    Comment 160: Several commenters suggested that NMFS should give 
more recognition to local watershed restoration efforts.
    Response: NMFS recognizes the importance of local efforts, and 
will, by accepting approved watershed assessments, WCPs, and 
restoration projects developed through cooperative local efforts, 
acknowledge the contributions made by local watershed conservation 
groups. These efforts, in conjunction with regional and ESU-specific 
recovery efforts, will be crucial components of species recovery.
    Comment 161: Several commenters pointed out that the assured 
funding criterion Sec. 223.203(b)(8)(i)(A)(10) could present 
difficulties for some local governments and watershed councils.
    Response: NMFS recognizes that securing funding to reliably 
implement the WCPs will be a challenging undertaking for many entities. 
Therefore, NMFS remains open to trying different means to flexibly deal 
with any difficulties that may arise--particularly with regard to 
funding.
    Comment 162: One commenter objected to a requirement that WCPs be 
monitored to determine whether they increase listed salmonid 
productivity. The commenter was concerned that the cost and difficulty 
of monitoring fish populations would discourage local efforts at 
habitat restoration.
    Response: NMFS realizes it is difficult and expensive to monitor 
population response and that acceptable methods have generally not been 
developed. While increased fish productivity is the ultimate goal (from 
NMFS' perspective) of a WCP, NMFS recognizes that monitoring programs 
will focus on habitat functions and processes as indicators of 
watershed health.
    Comment 163: One commenter suggested that the Federal Register 
document and comment period prior to NMFS' approval of watershed 
conservation plan guidelines was unrealistic and contrary to the goal 
of salmon recovery.
    Response: NMFS considers it necessary to provide for appropriate 
public review of the guidelines that NMFS expects to be addressed in 
programs submitted for its review. Ensuring complete and open public 
scrutiny will improve the guidelines through broad input and enhance 
their value through dissemination to all parties interested in the role 
of the guidelines in salmon recovery.
    Comment 164: A number of commenters suggested there was a need for 
greater clarification in the scope and purpose of WCPs and watershed 
analyses, and that more specific direction was required in order to 
identify the information needs of the plans and analyses.
    Response: Analyses and plans must ensure that habitat restoration 
activities will help place the overall habitat on a trajectory towards 
a self sustaining condition that provides high quality ecosystem 
function. NMFS believes that projects planned and carried out based on 
a watershed-scale analysis and conservation plan are likely to be the 
most beneficial. Watershed analyses identify problems that are 
impairing watershed processes and functions and supply base information 
needed to develop watershed plans and restoration activities. Without 
the context provided by watershed analyses, habitat restoration efforts 
are likely to focus on symptoms rather than on the underlying impaired 
ecosystem processes. NMFS identified 10 standards in the ESA 4(d) rule 
that characterize the WCPs' scope and intent.
    Comment 165: Two commenters indicated that the restoration programs 
receiving limits on the ESA section 9 prohibitions should be expanded, 
and further, that the guidance should be made ESU-specific.
    Response: NMFS works with state and local jurisdictions and other 
resource managers to identify programs for which it is not necessary 
and advisable to impose take prohibitions because they contribute to 
conserving the ESU or are governed by a program that adequately limits 
impacts on listed salmonids. This ESA 4(d) rule may be amended to add 
new limits on the take prohibitions or to alter or delete limits as 
circumstances warrant. NMFS wishes to continue to work collaboratively 
with state and local jurisdictions and other resource managers to 
recognize existing and potential management programs that conserve 
listed salmonids and meet their biological requirements. As more 
programs that meet these objectives are developed or identified, 
greater

[[Page 42450]]

geographic and ESU specificity may be possible.
    Comment 166: One commenter suggested that WCPs should be required 
to protect existing high quality habitat.
    Response: NMFS agrees that the best available science supports the 
concept of protecting existing high quality habitat as a cornerstone of 
a WCP (provided there is high quality habitat within the scope of the 
WCP). But the criteria provided at Sec. 223.203(b)(8)(iii) will be used 
only to evaluate state WCP guidelines, which will include much more 
technical detail. Those guidelines will then be used to evaluate WCPs.
    Comment 167: One commenter stated that conservation plans should 
not be limited to salmonid recovery but must be broad enough to 
encompass other watershed functions and goals.
    Response: In freshwater ecosystems, NMFS' legal authorities are 
limited to the conservation and recovery of listed anadromous salmonids 
and their habitats. To help conserve listed salmonids, restoration 
actions should put the aquatic habitat on a trajectory towards such a 
naturally self sustaining system (i.e., properly functioning habitat). 
Properly functioning habitat condition consists of the sustained 
presence of the natural processes that provide high quality ecosystem 
function. This complex system is composed of the stream, the riparian 
area, and upslope areas. All three components of this system are 
interconnected. The WCPs that guide restoration activities intended to 
conserve salmonids will also benefit other aquatic, riparian dependent, 
and upland species and their habitats.
    Comment 168: Two commenters suggested that WCPs should also serve 
as CWA section 303 Total Maximum Daily Loads (TMDLs) for waters listed 
as impaired. Another suggested that NMFS work with the Oregon 
Department of Agriculture to coordinate the SB 1010 water quality 
management process with the watershed conservation planning process.
    Response: NMFS believes these are excellent ideas and recommends 
the approach. However, NMFS does not deem it necessary for the 
conservation of the species to require such a consolidation of mandates 
in this final rule. Incorporating water quality management plans, such 
as SB 1010 plans or TMDL Water Quality Management plans, into the 
watershed conservation planning effort is a logical and pragmatic 
approach towards watershed-scale recovery.
    Comment 169: Numerous commenters stated that the habitat 
restoration portion of the rule was too permissive and unclear in its 
objectives, definition, criteria, and implementation. One commenter 
believed it would create new programs that would divert attention from 
the loss of viable habitat which is the root cause of salmonid decline. 
Others cautioned against allowing state programs a limit on the take 
prohibitions because existing state programs have proven to be poorly 
designed and implemented. Several commenters noted general loopholes in 
the limits section.
    Response: The six specific interim provisions of the proposed rule 
were intended to strike a balance between the possible benefit to 
listed salmonids of allowing incidental take associated with some 
habitat restoration activities (while WCPs were being developed) 
against the risk that those activities might have deleterious 
consequences that a WCP context would have prevented. To accomplish 
this, NMFS selected six categories of common and relatively low risk 
restoration activities, and provided specific guidance and a list of 
references to further reduce the risk. In light of the numerous 
comments asserting that the interim provisions were both too permissive 
and too restrictive, NMFS now concedes that attempting to strike this 
balance was overly ambitious, and so has deleted the interim provisions 
from the limit for habitat restoration. Instead, NMFS offers three 
approaches for individuals who are contemplating habitat restoration 
actions but are concerned about their take liability: (1) Many of the 
most effective long-term restoration activities (e.g., riparian 
livestock exclosure fencing, native vegetation planting, cessation of 
ground or vegetation disturbing activities, cessation of water 
diversion) have extremely low probabilities of take, and the actors 
should not be concerned about take liabilities; (2) most higher-risk 
activities (e.g., instream construction activities, modification of 
stream bed or banks) require a CWA 404 permit from COE which provides 
incidental take permission through section 7 of the ESA; and (3) NMFS 
recommends the habitat restoration limit on take prohibition included 
in this rule as the best solution for encouraging effective restoration 
activities consistent with science based guidelines.
    Comment 170: A commenter suggested that the rule holds habitat 
restoration to a much higher standard (in some cases so high as to 
render such activities impossible) in terms of avoiding impacts than it 
requires for development activities.
    Response: NMFS disagrees. As stated in the rule, all 13 of the 
limits contribute to the conservation of listed salmon or are governed 
by programs that adequately limit their impacts. Moreover the same 
standard applies to both habitat restoration and development 
activities; they must achieve PFC of the habitat.
    Comment 171: Several commenters believe that NMFS' approach with 
this limit is to treat habitat restoration activities as a significant 
threat to the very species they are trying to protect. They believe 
that NMFS is overreaching its authority and this approach is 
bureaucratic, unrealistic, unnecessary, and will, as a result, be 
counterproductive to species recovery. Many stated that NMFS should 
give a limit to any activity carried out in accordance with state and 
Federal Laws. Another general sentiment was that NMFS should take a 
``hands-off'' approach to restoration activities and simply provide 
landowners with technical expertise.
    Response: We agree that bureaucracy should be kept to a minimum 
wherever possible and we will consistently seek ways to streamline all 
the processes this final rule entails. Nonetheless, the final rule 
includes a limit for habitat restoration activities because, absent the 
limit, some of these activities could result in prohibited taking. NMFS 
does indeed want to avoid the tragic irony of having a protective 
regulation impede habitat restoration that might otherwise contribute 
to recovery. However, good intentions alone will not adequately protect 
listed salmonids from the unintended negative consequences of poorly 
designed habitat restoration projects. Such projects often entail 
physical modification of currently used habitat of listed salmonids, 
and have significant potential to further damage impaired habitats and 
populations. The probability and consequences of project failure can be 
particular severe when projects attempt to redress the symptoms of 
habitat impairments before the underlying causes have been reversed. 
NMFS does not believe that it can disengage from its ESA 
responsibilities and simply rely on other state and Federal laws for 
approval to carry out restoration activities.
    Comment 172: A few commenters stated that emergency exemptions and 
a specific scope of rules should be included for bank stabilization and 
flood repair operations.
    Response: NMFS believes altering and hardening stream banks, 
removing riparian vegetation, constricting channels and flood plains, 
and regulating flows are primary causes of anadromous fish declines. 
Section 404 of the CWA--implemented through COE

[[Page 42451]]

regulatory authority--provides conditions for permitting stream channel 
and bank activities. Section 7 of the ESA provides emergency 
consultation procedures which allow Federal action agencies to 
incorporate endangered species concerns into their actions during the 
response to an emergency (50 CFR 402.05). For these reasons, NMFS 
asserts that existing regulations are sufficiently flexible to enable 
emergency work without limiting take prohibitions for flood control or 
repair activities.
    Comment 173: One commenter suggested that ``artificial bank 
stabilization'' should be defined.
    Response: We agree that the usage in the proposed rule may have 
been confusing. The term is meant to be read in context with ``primary 
purpose'' of the habitat restoration activity definition. The primary 
purpose of the vast majority of bank stabilization projects is not to 
restore natural aquatic or riparian habitat processes or conditions, 
but to protect economic development and then try to ``fix'' habitat 
remnants in an artificial manner. Such use of artificial materials and 
means in a piecemeal approach to control a river (or enhance an already 
controlled river) clearly fits the definition of artificial bank 
stabilization.
    Comment 174: Numerous commenters stated that marine and estuarine 
habitats should be included in the habitat protections and that 
connectivity issues and restoration activities should receive similar 
attention.
    Response: NMFS agrees estuarine habitats should be protected, but 
believes the rule adequately prohibits take and destruction of habitat 
in marine and estuarine areas. This final rule text provides sufficient 
examples (i.e., destruction of freshwater and estuarine habitat, 
altering stream or tidal channels, altering habitat) as take guidance. 
Lists of how prohibited take may occur are not designed to be 
exhaustive. Regarding limits for habitat restoration activities in 
marine/estuarine areas, NMFS believes such projects are of large enough 
scale and complexity to require project by project technical review at 
least until watershed planning is complete. NMFS not only agrees with 
the commenters stating that near shore marine and estuarine habitats 
should be included in watershed planning but expects that these areas 
will be included in applicable state guidelines and WCPs.
    Comment 175: A number of commenters requested that NMFS define the 
spatial scales appropriate for watershed analyses and conservation 
plans.
    Response: NMFS recognizes that the four states covered by the ESA 
4(d) rule delineate watershed boundaries using different hydrologic and 
administrative criteria. Consequently, the size of individual 
watersheds varies among the states and often across programs within a 
state, though there are a number of basic similarities in terms of 
watershed function and boundary. Each state's regulations and 
conservation programs are unique and the WCPs will most effectively 
conserve anadromous fish and their habitats if watershed boundaries are 
delineated within each administrative context.
    Comment 176: A number of commenters indicated that the state 
guidance documents developed to help steer restoration activities were 
not complete or were not ESA compliant.
    Response: NMFS recognizes that some of the identified state 
guidance documents are not finalized, and that some of the included 
activities may have an appreciable risk of taking. However, NMFS notes 
that these documents do provide guidance that will reduce risk and 
increase benefits of habitat restoration activities. Therefore, NMFS 
still recommends use of the guidance documents: Oregon Aquatic Habitat 
Restoration and Enhancement Guide (1999); A Guide to Placing Large Wood 
in Streams, Oregon Department of Forestry and Department of Fish and 
Wildlife (May, 1995); WDFW's Fish Passage Design at Road Culverts 
(March 3, 1999); and Oregon Road/Stream Crossing Restoration Guide 
(Spring 1999). Further, NMFS encourages the states to compile and 
expand these valuable guidance documents into WCP guidelines which NMFS 
may find qualifying under Sec. 223.203(b)(8)(iii) of this rule.
    Comment 177: Some comments reflected a concern that a report cited 
by NMFS in the proposed rule, ``Steelhead Restoration and Management 
Plan for California'' was not a peer-reviewed document and should not 
be included as guidance.
    Response: The report cited in these comments has been adopted as an 
integral part of the Cal-Fed ecosystem plan, and was subject to 
extensive peer review before being adopted.
    Comment 178: Several commenters questioned how the rule affected 
Indian Tribes' habitat restoration efforts. Most comments were directed 
at tribal participation in watershed planning, the potential for 
conflict between state guidelines and tribal restoration plans, and the 
lack of specific limits for tribal habitat restoration projects.
    Response: As co-managers, the Tribes may participate in any forum 
for developing conservation guidelines and specific WCPs. Tribes may 
also submit their own watershed conservation guidelines and plans under 
the Tribal plan limit. This final rule text describes a process wherein 
four western states are tasked because NMFS believes the states are 
responsible for conserving natural resources and native species within 
their geographic boundaries, and that sufficient infrastructure is in 
place to expeditiously develop guidelines. No further or specific 
limits for tribal restoration projects were included in the rule 
because limits for tribal trust resource management actions that take 
threatened salmonids are promulgated in a separate rulemaking (65 FR 
108, January 3, 2000).
    Comment 179: One commenter requested that the removal of sinker 
logs (which can sometimes constitute a navigational hazard) should 
receive a limit on the take prohibitions.
    Response: Removal of navigational hazards is under the authority of 
COE and it is their responsibility to consult with NMFS when they 
propose to engage in an activity that may affect listed salmonids. 
Federal projects that are approved through ESA section 7 consultation 
need not also qualify under a 4(d) rule limit.
    Comment 180: One commenter suggested that physical fish habitat is 
not being fully utilized now, and questions the need to create more.
    Response: NMFS respectfully disagrees and believes the commenter 
may have oversimplified the multifaceted problem of habitat 
productivity as being only a matter of finite capacity. This is a less-
than-accurate portrayal of the habitat factors for decline which 
include both pervasive loss of habitat quality and loss of access to 
historic habitat because of barriers. It is NMFS' position that habitat 
degradation and loss have contributed substantially to the decline of 
anadromous salmonids, and opportunities to regain both habitat function 
and extent should be sought.
    Comment 181: Some commenters felt NMFS should recognize that it may 
not be advisable or possible to protect or restore historic stream 
channels/processes, especially in urban settings.
    Response: NMFS recognizes that, especially in the urban setting, 
stream channel habitats are often impaired and are not functioning 
properly. NMFS would further acknowledge that not all stream segments 
may be recoverable. However, NMFS maintains that all tools for salmon 
recovery must be retained in the toolbox. Urban development, open 
space, or green space designations provide opportunity to protect

[[Page 42452]]

important riparian settings. Likewise, urban redevelopment may provide 
future opportunities for communities to protect or restore historically 
important stream channel settings.

Properly Screened Water Diversions

    Comment 182: One commenter wanted to know who determines whether 
fish screens are adequate.
    Response: The proposed rule states that NMFS' engineering staff 
will agree in writing that a diversion facility is screened, 
maintained, and operated in compliance with NMFS- approved Juvenile 
Fish Screen Criteria. The proposed limit has been revised based on 
public comments and by the fact that the projected workload associated 
with approving potentially thousands of water diversion facilities in 
four states has the potential to overwhelm NMFS staff resources. 
Consequently, this final rule has been changed to allow NMFS-authorized 
state agency engineers and screen inspectors to review and recommend 
screen design certifications and to allow NMFS-authorized screen 
inspectors to check screens for operational and maintenance compliance. 
This approval process will augment NMFS staff review. NMFS' Northwest 
Region (NWR) Juvenile Fish Screen Criteria have been adopted by the 
Columbia Basin Fish and Wildlife Authority (with participants from the 
states of Oregon, Washington, and Idaho) for use in waters with 
anadromous salmonids. NMFS' Southwest Region (SWR) Juvenile Fish Screen 
Criteria was developed in close coordination with CDFG criteria and the 
two sets of criteria are compatible. As a result, in all four states 
affected by this final rule, NMFS' Juvenile Fish Screen Criteria will 
form the basis for a design review and inspection program. It is 
proposed that a design specification check-off form and an operational 
screen inspection report form be developed and used consistently in the 
four states. NMFS will establish and maintain a data base to record who 
reviewed a particular screen design, when it was inspected, any 
problems associated with poorly designed screens being approved, and 
other relevant information. A key component of this process will be 
important training to certify inspectors and design reviewers. New 
language has been added to the regulation to reflect this change.
    Comment 183: Some commenters stated that the final rule should 
acknowledge other screen technologies, especially non-conforming 
technologies, that have been demonstrated to meet or exceed levels of 
protection provided by technologies that do meet NMFS screen criteria.
    Response: NMFS' engineering staff is frequently asked to assess 
other screen technologies that are not compliant with NMFS' screen 
criteria. As a result, NMFS staff has developed a standard protocol for 
evaluating non-conforming technologies, and has published an agency 
position paper titled ``Experimental Fish Guidance Devices,'' November 
1994, that can be found on the NMFS web page at www.nwr.noaa.gov/
1hydrop/exp__tech1.htm. This position paper describes the process NMFS 
requires for a proponent of experimental technology to demonstrate that 
a particular non-conforming technology meets or exceeds the level of 
protection offered by a facility designed using NMFS' Juvenile Fish 
Screen Criteria. We are not aware of any non-conforming technology that 
demonstrably protects fish as well as or better than NMFS' criteria for 
the variety of operating conditions present at any typical water 
diversion site. If evidence is provided that a non-conforming 
technology exceeds the level of protection provided by NMFS criteria 
(as described in the position paper referenced above), NMFS would 
welcome and approve this technology.
    Comment 184: One commenter stated that water withdrawal and 
diversion activities that take listed salmon should not be granted 
limits.
    Response: The intent of the limit for a water diversion equipped 
with a screen constructed to NMFS' standard is to minimize take 
associated with diversion activities once water is diverted from the 
stream. NMFS intends to enforce the take prohibition for other forms of 
take that may be associated with water diversions (e.g., dewatering 
streams, building gravel push-up dams, or creating other passage 
impediments).
    Comment 185: A few commenters stated that requiring screens on all 
diversions in the Sacramento Delta regardless of whether or not the 
particular diversion affects steelhead is unjustified.
    Response: The intent of providing juvenile fish screen facilities 
is to minimize the prospect of take once the water has been diverted. 
It is extremely unlikely that it can be conclusively demonstrated that 
any particular diversion in a river basin containing listed steelhead 
will never entrain a listed steelhead. It may sometimes be true that 
listed fish are not present at a diversion site. It is more likely 
that--due to a variety of circumstances--the listed fish simply escape 
observation at a given site. This should not be construed as a total 
absence of listed fish at a site. It should also be remembered that 
fish are at critically low levels now and that their presence at 
diversions and other sites is likely to increase as we proceed with 
their recovery.
    Comment 186: Some commenters asserted that agencies and individuals 
making good faith efforts to install screens should receive a grace 
period during which take prohibitions would not be enforced.
    Response: NMFS acknowledges that certain complex screen facilities 
can take several years to finance, design, and construct. NMFS will, 
therefore, change the proposed rule to include a provision for 
addressing selected facilities on a case-by-case basis. In these 
instances, a facility will be eligible for approval under the limit if 
it has an approved design construction plan and schedule that includes 
interim operation measures to minimize take. In the event that this 
schedule is not met, or if a schedule modification is made that is not 
approved by NMFS engineering staff, or if the screen installation 
deviates from the approved design, the water diversion will be subject 
to take prohibitions. In all other cases, as stated in the proposed 
rule, NMFS will apply the prohibition against take and the limit is 
available to those who have their diversion facility approved and 
inspected as stated in this final rule.
    Comment 187: One commenter stated that diversion activities that 
substantially benefit the public should be included in the limit.
    Response: It can be argued that any diversion activity confers 
public benefit to one degree or another. However, water diversions are 
screened to protect fish and allow them safe egress from the diverted 
flow--an activity which has little to do with how much the diversion 
itself benefits the public. Therefore, it is not possible to grant a 
blanket approval for water diversions--regardless of the amount of 
benefit that may putatively accrue from an individual facility.
    Comment 188: Several commenters asserted that NMFS' screening 
criteria are not well defined, have not received enough scientific 
review, and are not flexible enough.
    Response: On the contrary, NMFS' juvenile fish screen criteria are 
extensively detailed and do include sufficient flexibility to deal with 
site-specific constraints and other concerns. There is no set of 
juvenile fish screen criteria in the world that is as well defined, or 
has undergone a higher degree of scientific scrutiny. In addition, 
NMFS' juvenile fish screen criteria are based on decades of operational

[[Page 42453]]

experience that have yielded the best screen designs for salmonid 
protection in existence. Several state agencies have adopted NMFS' 
screen criteria and use them in water bodies containing anadromous 
fish. Lastly, extensive biological screen evaluations have revealed 
little or no injury to fish when testing screen facilities constructed 
to NMFS' criteria. This is a primary indicator that NMFS' juvenile fish 
screen criteria are the best option for protecting listed fish 
entrained by a water diversion.
    Comment 189: One commenter suggested that screened diversions 
approved under the limit should be reviewed annually as to their 
physical condition.
    Response: This is a good suggestion. NMFS agrees with this comment, 
and will seek to incorporate this issue into the check-off form and 
inspection process for a screen design and inspection program that NMFS 
be developed with the states.
    Comment 190: One commenter stated that there should be no violation 
of the rule for inadequately screened diversions if no take can be 
proven.
    Response: There are no liabilities under ESA if take does not 
occur.
    Comment 191: One commenter thought that ``enforcement official'' 
should be replaced with ``authorized officer.''
    Response: NMFS agrees with this recommendation and has made this 
language change.
    Comment 192: One commenter stated that unscreened agricultural 
diversions in the Sacramento River delta are not the problem, and that 
NMFS should concentrate its efforts on the export pumps that dry up the 
river.
    Response: Water diversions in critical habitat have the potential 
to take listed salmonids and, are therefore, subject to take 
prohibitions. Even properly screened diversions may take fish by drying 
up the river. NMFS intends to enforce take prohibitions against 
diversions that dewater river beds.
    Comment 193: One commenter wanted to know if the limit applies to 
all diversions or just irrigation diversions.
    Response: As stated previously, diversion of water in critical 
habitat has the potential to take listed salmonids and is therefore 
subject to take prohibitions. Thus the limit applies to all diversions 
that may affect the listed species.
    Comment 194: One commenter identified the need for detailed 
operation and maintenance guidance if maintenance is to be a 
requirement in this limit.
    Response: NMFS' engineering staff will provide this guidance in 
general for all juvenile fish screens and will develop site-specific 
operations and maintenance plans for sites with particular concerns. 
Our intent is to develop this guidance in conjunction with regional 
forums on screen activities (e.g., the Fish Screen Oversight Committee 
of the Columbia Basin Fish and Wildlife Authority). Both the general 
and the site-specific guidance will be included in the proposed 
training program for state-authorized officers.
    Comment 195: One commenter wanted to know if the ESA 4(d) rule 
applies to temporary diversions during construction.
    Response: NMFS will need to review each situation on a case-by-case 
basis and the answer will depend on the nature of the diversion. Some 
construction activities provide a temporary diversion around a 
construction site, and safely return fish and flow to the stream 
downstream of the site. Other activities may be required to provide a 
screen and bypass for a temporary diversion if biological review 
determines that the activity will place the fish at risk. These 
decisions will be made when developing a Biological Opinion on a 
particular in-stream activity.
    Comment 196: One commenter urged NMFS not to apply the ESA 4(d) 
rule take prohibitions in areas upstream of fish barriers.
    Response: The ESA 4(d) rule take prohibition applies to the land 
and ocean area within the 14 designated ESUs. All operators of water 
diversions within these ESUs need to review their activities and modify 
any activity that may take a threatened species.
    Comment 197: One commenter noted that NMFS does not credit 
compliance with existing fish protection requirements, but appears to 
require continual updating to new fish screen standards and individual 
sign-off from NMFS staff that the screen complies. The commenter also 
stated that individual screen certification creates certain practical 
obstacles and NMFS should use this as an incentive and limit the take 
prohibitions on water use in general, not just on the physical 
diversion structure.
    Response: The intent of the ESA 4(d) water diversion screening 
limit is to allow a water diversion to be made as safe as possible for 
listed fish species. Therefore, as new biological information becomes 
available, it may drive a modification in the screen criteria. 
Nonetheless, NMFS recognizes that it is unnecessary to retro-fit all 
existing screen facilities with new features every time new information 
comes to light because the criteria that are currently in place do an 
excellent job protecting all salmonid life stages. NMFS has updated 
their juvenile fish screen criteria only once in the last 11 years. The 
change came about as a result of new biological evidence that certain 
previously untested aspects of the old criteria did not adequately 
protect certain life stages of fish. While this set a standard for new 
installations, NMFS did not expect retro-fits of recently constructed 
facilities. NMFS intends to certify screen designs that meet the 
criteria in place at the time of construction--providing there is no 
evidence to show that the device is actively taking listed species. In 
addition, NMFS intends that when screen components need to be replaced 
due to wear, materials will be used consistent with current criteria. 
However, if a screen is installed that is out of compliance with NMFS 
criteria, no limit from the take prohibition will be allowed.
    Comment 198: One commenter argued that the practical effect of the 
ESA 4(d) rules with respect to water diversions is to eliminate 
incentives for water users to screen their diversions.
    Response: The intent of this limit is to offer diverters protection 
from take enforcement when fish are protected by a properly installed, 
well-designed, and well-maintained screen. There are clearly other 
issues (e.g., stream dewatering) that can not be solved by screen 
installation, and these activities will continue to diminish critical 
habitat and take listed fish and thus be subject to take prohibition.
    Comment 199 : One commenter urged NMFS to apply this limit to water 
pumping devices as well as diversions.
    Response: Water pumping devices are included in this limit.
    Comment 200: One commenter wanted to know the details of NMFS' 
enforcement strategy for non-compliant screens and diversions.
    Response: NMFS' enforcement strategy is specified in the section of 
this final rule entitled ``Take Guidance.'' Unscreened water diversions 
that cause take of a threatened species are subject to NMFS take 
enforcement action.

Road Maintenance Activities

Comments Relating to the Oregon Department of Transportation (ODOT) 
Limit
    Comment 201: Several commenters wanted the limit provided to the 
ODOT for the Routine Road Maintenance Water Quality and Habitat Guide 
Best Management Practices July 1999 (Guide)

[[Page 42454]]

to apply to other cities and counties as well so they would not have to 
develop their own. Many of these commenters also requested that the 
limit be expanded to other jurisdictions and departments of 
transportation--with appropriate revisions to the best management 
practices (BMPs).
    Response: There are two issues reflected in this and other road 
maintenance comments and NMFS has organized its responses accordingly. 
The first is that some local jurisdictions would like to adopt the ODOT 
manual without modification with the understanding that it will provide 
proper functioning habitat conditions. NMFS agrees that local 
jurisdictions can adopt the BMPs in the manual; however, the local 
maintenance programs will need to be examined further to assess any 
differences between them and ODOT's program and determine how those 
differences would affect the success in contributing to Properly 
Functioning Condition (PFC). Also, NMFS and ODOT have spent several 
years evaluating this program so that NMFS has a clear understanding of 
ODOT's ability to fulfill training, tracking, and reporting 
requirements. Other jurisdictions wishing to be covered under this 
limit would have to demonstrate their ability to make similar 
commitments and would also need to define the circumstances under which 
an individual BMP would not be followed.
    The second issue pertains to the potential application of the limit 
to similar activities of other jurisdictions besides ODOT and Oregon 
cities and counties. NMFS agrees that under the conditions that meet or 
exceed those described above, the limit for routine road maintenance 
could be applied to other jurisdictions such as ports, other state 
transportation agencies, and cities and counties in other states which 
also, like ODOT, have programs that are determined to meet PFC. This 
final rule describes the procedure for public comment and determination 
of inclusion within the limitation on the take prohibition.
    Comment 202: One commenter focused on how NMFS would respond if the 
ODOT program had compliance problems or if new information demonstrated 
that the program no longer provided sufficient protection. They stated 
that allowing ODOT to correct the matter ``within a mutually determined 
period of time'' was too vague a standard.
    Response: NMFS agrees, and the wording of the rule has been changed 
to reflect this comment.
    Comment 203: Some reviewers stated that the ODOT guide is 
completely inadequate to the task of protecting fish in that it allows 
far too many potentially harmful activities and contains far too much 
ambiguous language. Similarly a number of commenters asked that ODOT 
remove the ``hedge'' words (``where feasible,'' etc.) from the road 
maintenance limit.
    Response: NMFS believes that the ODOT program, as designed, will 
adequately protect the listed species and their habitat. NMFS also 
intends this final rule to be somewhat flexible in terms of allowing 
combinations of measures that avoid or sufficiently minimize take. 
Further, this final rule has been designed to take into account a range 
of circumstances wherein hard constraints relating to physical, safety, 
weather, equipment, or other project aspects make it impossible to 
follow the BMP to the letter. In addition, ODOT has stated that the 
discretionary language will not be used for convenience or for ease of 
operation. Therefore, based on NMFS' working relationship with ODOT, we 
expect that the standard BMPs will be used in most circumstances and 
situations. To help ensure that this occurs, the ODOT crews will be 
extensively trained and NMFS will regularly review the program.
    Comment 204: One commenter stated that the ODFW, not the ODOT 
regional environmentalist, should review ODOT activities and decide if 
they need a biological assessment. The commenter was concerned by the 
fact that the proposed rule seemed to mandate consultation with the 
regional environmental coordinator for any in-water work and that the 
regional environmental coordinator would not have the specialized 
knowledge to make good decisions during in-water work.
    Response: The ODOT coordinates with the ODFW on all in-water work 
for ODOT bridge repairs, and usually the regional environmental 
coordinator is involved in the discussions as well. The ``and/or'' 
language is not intended to exclude the ODFW, but rather to exclude the 
regional environmental coordinator in instances where that office's 
participation is deemed unnecessary. Two ODFW biologists are assigned 
to coordinate exclusively with ODOT on transportation issues and work 
closely with ODOT regional environmental coordinators. In addition, 
district biologists assist ODOT on a variety of construction and road 
maintenance issues and projects.
    Comment 205: One commenter stated that the final rule should allow 
NMFS to approve minor variations from ODOT procedures.
    Response: NMFS will exercise reasonable judgement as to whether any 
minor adjustment in the ODOT road maintenance guidance requires formal 
approval from NMFS and, therefore, also warrants Federal Register 
publication and public comment. However to stay consistent with the 
spirit of the limit, any change that would affect the substantive 
protections the program provides for the environment will require a 
written approval. NMFS has clarified this point by adjusting the 
language in the rule.
    Comment 206: One commenter provided multiple, detailed, suggestions 
and critiques of the ODOT program. Each suggestion (in quotations) is 
covered in the following discussion unless it is discussed in another 
response.
    (1) ``To the maximum extent possible, the manual should contain 
enforceable standards.'' Response: Based on NMFS' extensive review of 
the ODOT manual, we believe the standards described are enforceable. 
For example, the first BMP for surface work requires (a) eliminating 
diesel as a releasing or cleaning agent and using only environmentally 
sensitive agents, (b) using heat sources to clean tack nozzles, (c) 
carrying adequate erosion control supplies to keep materials out of 
water bodies, and (d) disposing of excess material at appropriate 
sites. All these are enforceable. The same is true for the great 
majority of the BMPs for other activities.
    (2) ``Protective and mitigation measures for work conducted outside 
of the BMPs should be required, and they should be described.'' 
Response: We agree with portions of this statement. NMFS is continuing 
to work with ODOT on its maintenance BMPs. In most cases, the changes 
would have only minor (short-term) or no effects on habitat or fish. In 
situations where not following the BMPs would adversely affect fish or 
their habitat, NMFS will work with ODOT to ensure appropriate 
alternative protective measures and mitigation are applied.
    (3) ``The manual should describe an effective, proactive, 
monitoring program for maintenance projects.'' Response: Page 3 of the 
guide describes ODOT's monitoring program and it is also described in 
the draft rule. Research is being conducted on several high-risk 
activities such as culvert cleaning, culvert replacements, and winter 
maintenance in order to gain more information about maintenance project 
impacts and develop better BMPs.
    (4) ``The manual should contain specific timetables for project 
reviews and manual updates.'' Response: The

[[Page 42455]]

manual can be revised by ODOT in consultation with NMFS at any time. 
The draft rule states that ODOT has committed to review the guide and 
revise as necessary, at least every 5 years. In addition, ODOT will 
annually make any necessary BMP modifications.
    (5) ``Terms not in common usage should be clearly defined.'' 
Response: Uncommon terms are defined at the beginning of the guide 
(pages ii through iv).
    (6) ``Effective erosion controls and a list of specific techniques 
should be defined, including a description of methods to be used during 
emergencies.'' Response: Erosion control measures are described as BMPs 
under each activity. Erosion control measures for emergencies are being 
developed under a programmatic biological assessment.
    (7) ``Mandatory work windows should be defined to protect 
vulnerable life stages of salmonids.'' Response: As stated in the guide 
(e.g., pages 8, 12, and 13), ODOT must use in-water work windows for 
all in-water work, unless the ODFW specifically agrees otherwise. The 
ODFW's in-water work guidelines are part of the guide, in Appendix C.
    (8) ``Criteria for the use of bioengineering methods should be 
described.'' Response: The guide states that bioengineering will be 
used where possible. The ODOT currently has multiple research projects 
focusing on the use of bioengineering to stabilize slopes; as the 
results of the research become known, NMFS and ODOT will develop 
criteria.
    (9) ``Riparian management zones should be defined by water type or 
the criteria used to determine riparian buffer widths [should be] 
identified.'' Response: Standard buffer widths are defined on page iv 
of the guide. NMFS determined that these widths provide sufficient 
protection from road maintenance activities. The standard buffers also 
are implementable by maintenance staff without requiring detailed 
knowledge of fish presence/absence. Also, ODOT is developing detailed 
maps that identify sensitive resource areas based on criteria described 
in the draft rule; they will include information on overstory values, 
salmonid presence, spawning habitat, off-channel areas, etc. The maps 
will thus delineate areas where only certain activities may be allowed 
and the ODOT maintenance staff will modify their activities 
accordingly.
    Comment 207: One commenter asked whether ODOT standards apply to 
all streams, just water quality limited streams, or just fish-bearing 
streams.
    Response: The ODOT standards apply to all streams. The guide is a 
statewide document for all maintenance areas, even where no listed fish 
are present.
    Comment 208: Several commenters stated that any routine road 
maintenance program should have been included in this limit. In 
particular, routine road maintenance under the Oregon Department of 
Forestry's Forest Practices Act was suggested.
    Response: In the final rule, the limit for road maintenance is 
broadened beyond the ODOT and Oregon cities and counties to include 
other jurisdictions within and outside of Oregon based upon the ODOT's 
manual or which otherwise contribute to achieving or maintaining PFC. 
However, road maintenance for forestry roads will not be included 
because the road use and required BMPs are very different for this type 
of road.
    Comment 209: One commenter stated that ODOT should provide criteria 
and steps to avoid, minimize, and mitigate all impacts when their 
guidance cannot be followed.
    Response: The ODOT's manual is intended to avoid, minimize, and 
mitigate all impacts. NMFS chose to preserve ODOT's flexibility in 
choosing the most practicable methods for avoiding, minimizing, and 
mitigating for impacts because of ODOT's demonstrated commitment to 
protecting aquatic resources.
    Comment 210: Several commenters requested the elimination of the 
requirement to prohibit any sediment input into the stream resulting 
from routine road maintenance activities.
    Response: The ODOT routine road maintenance program does not 
prohibit sediment input into streams, although it presents measures to 
minimize and avoid the input.
    Comment 211: One commenter stated that ODOT needs to allow for road 
repair during winter/wet seasons if emergency conditions dictate.
    Response: The ODOT will implement BMPs when practicable, and is 
responsible for coordinating repair and mitigation measures with 
appropriate resource agencies in the event fishery or water resources 
are damaged during a response to an emergency.
    Comment 212: One commenter requested that ODOT's program be removed 
as a limit because the tribes had not been given an opportunity to 
review it. They stated that the guide was not available for review 
through the notice.
    Response: There were a total of 52 days to review the ODOT guide. 
It was available through the ODOT web site and the NMFS Northwest 
Region's website. This was cited in the Federal Register document 
within the section titled Electronic Access. Moreover, it is NMFS' 
intent to work closely with the tribes of the region to develop 
improved information exchange and consultation opportunities.
Comments on the Potential Application of the Limit to Other 
Jurisdictions
    Comment 213: One commenter stated that the limit's requirements for 
developing an Memorandum of Agreement (MOA) under which road 
maintenance programs for other jurisdictions would be approved are not 
specific and should be revised to provide clear direction.
    Response: NMFS intentionally did not provide a detailed description 
of what the MOA should include or how it should be prepared. The MOA 
was intended to provide the mechanism for negotiating with various 
jurisdictions about how to make sure that their program is equivalent 
to the effectiveness of ODOT program in contributing to achieving or 
maintaining PFC, including the tasks of training, tracking, and 
reporting, and how to best apply comparable measures identified in the 
ODOT guide. Based on this and other comments, NMFS has revised the 
regulatory language to require ``a written agreement'' rather than a 
formal MOA. That written agreement is intended to be flexible enough so 
there is no need to recreate a new maintenance program or amend the 
rule.
    Comment 214: One commenter suggested that each jurisdiction seeking 
coverage under the limit for routine road maintenance should be able to 
develop its own BMPs.
    Response: NMFS does not object to the use of BMPs that may be 
different from those presented in the ODOT guide. NMFS is satisfied 
that road maintenance activities in compliance with the ODOT guide and 
program contribute to achieving or maintaining PFC. NMFS expects that 
each jurisdiction seeking to apply the routine road maintenance limit 
to its program will clearly demonstrate how that program either applies 
equivalent measures to those specified in the ODOT guide or how it 
otherwise contributes to PFC. NMFS does not necessarily expect each 
jurisdiction to adopt the ODOT guide.
    Comment 215: One commenter indicated that compliance and 
effectiveness monitoring and adaptive management are essential to 
ensure adequate protection of listed species. This commenter expressed 
concern that the monitoring may not be adequate and that without 
specific monitoring criteria

[[Page 42456]]

and protocols, the ability to evaluate and modify conservation measures 
would be limited.
    Response: NMFS agrees that monitoring is essential for assuring 
that the routine road maintenance programs are being properly 
implemented and that the outcomes are as expected (i.e., contributing 
to PFC). The monitoring and feedback approach contained in the ODOT 
program, while being somewhat non-specific, is practicable and can 
provide enough information to assess compliance and effectiveness.
    Comment 216: NMFS received one comment requesting that the limit 
set standards for road restoration and maintenance, as well as goals 
for maximum road densities.
    Response: This comment is referring to forested watersheds and 
watershed conservation plans. NMFS is addressing those areas primarily 
through ESA mechanisms other than the road maintenance limits of the 
rule (i.e., application of ESA sections 7 and 10 for Federal and non-
Federal land management practices, respectively).
    Comment 217: One comment stated that there should be no specific 
limits for roads--just the normal section 9 prohibitions. The commenter 
was concerned that erosion caused by steep slopes and incorrectly built 
roads could potentially harm listed salmon populations.
    Response: NMFS agrees that soil erosion from road projects can have 
adverse effects on salmon populations and their habitats. However, the 
limit only applies to routine road maintenance activities; that is, 
road repairs that increase the material profile are not covered under 
the rule. Any activity for which a COE permit is required is not 
covered by the routine maintenance program and would, in any event, 
require a section 7 consultation. The ODOT's manual recognizes the 
problems associated with erosion and addresses erosion repair (MMS 
122). To minimize impacts, ODOT requires that erosion repair work 
consider bioengineering solutions. The maintenance program requires 
that ODOT maintenance staff take precautionary measures on identified 
erodible areas--provided the measures can be safely applied. Taken 
together with other measures ODOT is carrying out (e.g., mapping 
landslide-prone areas throughout the Oregon coast), the routine road 
maintenance program protects threatened salmon and steelhead adequately 
to warrant a limit.

Integrated Pest Management (IPM) Activities in Portland, Oregon

    Comment 218: Several commenters indicated that NMFS led them to 
believe that pesticides would not be considered in this rulemaking and 
that it was, therefore, unfair to proceed with a limit that accounts 
solely for the Portland Parks and Recreation (PP&R) program. It was 
generally expressed that various states, local entities, and agencies 
should be allowed their own limit on take prohibitions as they relate 
to pesticide use. Other commenters stated that the PP&R IPM program was 
inadequate because it was too ambiguous, did not list the actual 
amounts of pesticide being used, allowed broadcast spraying in riparian 
buffers, and did not adequately address all potential pathways of 
contamination.
    Response: The PP&R IPM program received a limit at this time 
because it is a fully-formed, conservative program. NMFS' decision 
process was based on careful scientific review, investigation of 
potential pathways of contamination (specific to PP&R-planned 
activities), and analysis. NMFS concluded that PP&R's plan addresses 
potential impacts and protects listed salmonids to an adequate degree. 
A subsequent review process will be conducted one year after PP&R's 
plan is adopted, additional reviews will occur every two years, and 
appropriate adjustments will be made throughout the process. As NMFS 
noted in the preamble to the proposed rule rates of application in 
buffer strips under the PP&R IPM program range from 8 percent to 100 
percent of the individual chemical label restrictions. Moreover, these 
chemicals are not applied annually, rather only as needed and only as 
the last resort for controlling unwanted vegetation. Use of the term 
``broadcast spraying'' may be misleading. The listed chemicals must be 
applied at low pressure (which results in large droplets to reduce 
airborne mists), by hand wand, and only in the area where a dense 
broadleaf outbreak is occurring--not the entire buffer area.
    NMFS believes that with restrictions such as the ones cited here, 
and looking at the program as a whole, it sufficiently protects the 
listed salmonids.
    Comment 219: One commenter asked if the PP&R IPM was intended to 
apply to maintenance activities adjacent to all streams, just water 
quality limited streams, or just fish-bearing streams.
    Response: The PP&R IPM applies to all waters--regardless of their 
designation (moving, water quality compromised, fish/non-fish-
bearing)--associated with PP&R managed lands. The use of pesticides 
near flowing waters is more restricted than near still water (isolated 
ponds).
    Comment 220: One commenter stated that the PP&R IPM should require 
public notice 48 hours before spraying.
    Response: Currently PP&R does notify the public of tree spraying by 
posting signs in the affected area 24 hours in advance. Also, on any 
day other types of pesticides are being applied, signs are placed in 
the park and remain there until the application is complete and any 
product has dried. It should be noted, however, that this is 
essentially a public health issue and is, therefore, outside the scope 
of a rule making for threatened salmon and steelhead.
    Comment 221: Several commenters stated that data generated by 
Oregon's pesticide tracking law should be integrated with the limit.
    Response: We agree that it would be useful information. The PP&R's 
IPM requires an annual report to NMFS. When NMFS reviews PP&R's annual 
report it will take into account new scientific data on pesticides and 
their effects on listed fish (and the habitats that support them) when 
making its decision whether to continue with the program as written or 
require changes. Over the next year, NMFS will examine the question of 
whether incorporating the information collected through Oregon's 
pesticide tracking law (ORS 192.502, ORS 634.306, and ORS 634.372) into 
the review process would improve that annual analysis.
    Comment 222: One commenter requested that NMFS clarify that the 
PP&R IPM applies only to city parks managed by PP&R.
    Response: The commenter is correct. The PP&R IPM program limit 
applies only to activities conducted by PP&R in Portland city parks.
    Comment 223: One commenter expressed concern that the list of 
chemicals does not appear to take into account chemicals already 
present in surface waters. It was also stated that NMFS needs to do 
more research on the impacts pesticides have on anadromous fish.
    Response: NMFS agrees with the need for more research in this area. 
The NMFS Northwest Fisheries Science Center (NWFSC) has recently begun 
a research program to evaluate in greater detail the effects of 
pesticides in the environment and their effects on anadromous fish. 
This program will expand on earlier investigations by the NWFSC and 
will look at the sublethal effects, synergistic effects, cumulative 
effects, and effects of inert ingredients in pesticides in the aquatic 
environment. NMFS will work closely

[[Page 42457]]

with EPA and state authorities which have primary responsibility for 
ensuring the proper use of these products under relevant Federal and 
state regulatory regimes. Should information come forward to suggest 
that the otherwise-lawful use of a pesticide harms listed salmonids and 
is in violation of section 9 or this rule, NMFS anticipates addressing 
the concern through amendment of this rule, a section 7 consultation 
with EPA, or corresponding discussions with responsible state 
authorities. NMFS will employ this approach rather than favor 
enforcement actions against an individual applicator for the otherwise 
lawful use of the pesticide. Similarly, if NMFS finds that a limitation 
on the prohibition against take for the use of selected pesticides is 
necessary and advisable for the conservation of listed salmonids, it 
may amend this rule accordingly. Through such a programmatic approach 
NMFS believes that it will be able to achieve an orderly and 
comprehensive analysis of the use of pesticides and their effects on 
listed salmonids.
    Comment 224: One commenter suggested that the best approach to 
evaluating pesticide use under the ESA was a toxicological risk 
assessment protocol based principally on the dose-response theory. 
Under this approach, the commenter concludes that ``there is no 
evidence that take of salmon or steelhead has actually occurred as a 
result of pesticide use.'' The commenter further asserts that under a 
program managed by the California EPA's Department of Pesticide 
Regulation (DPR), ``there should be zero take of any listed fish, 
including salmonids under NMFS' jurisdiction'' if the protocols 
developed by the DRP are followed.
    Response: NMFS disagrees. The NWFSC has been actively investigating 
the sublethal effects of pesticides on listed salmonids for more than 
two years. This research is specifically tailored to examine pesticide 
effects on the life histories of anadromous fish in California and the 
Pacific Northwest, and is designed to reduce the considerable 
scientific uncertainty associated with pesticides. NMFS will use the 
data arising out of this process to guide future decision making under 
the ESA.
    Comment 225: Several commenters felt the rules may unduly restrict 
the critical function of noxious weed control. It was suggested that 
NMFS may be discouraging lawful and environmentally beneficial use of 
pesticides and herbicides.
    Response: NMFS recognizes the importance of noxious weed control. 
The final rule encourages development of local programs that conserve 
fish while placing priority on preventing pests (weeds, insects, 
disease) through non-chemical means. Noxious weeds may be controlled in 
a number of ways--both with and without the use of herbicides.
    Comment 226: Some commenters asserted that a regional invasive 
species prevention program is needed--one that includes a protocol for 
addressing expedited responses to invasive species.
    Response: NMFS agrees that a regional invasive species prevention 
program that includes response protocols would be beneficial. Such a 
program should be developed in cooperation with state and local 
government agencies, FWS, and EPA.
    Comment 227: Several commenters stated that if a pesticide is used 
according to the directions on the label, or in compliance with various 
other state or Federal regulations, the applicator should receive a 
limit on the take prohibitions.
    Response: Please see earlier responses on the same general subject. 
Currently, EPA has not consulted with NMFS on the use of pesticides and 
their impact on listed anadromous fish and their habitat. Therefore, 
applying pesticides in accordance with current label directives, EPA 
guidelines, or interim state measures for pesticide use, is not, de 
facto, exempt from the possibility of ``take.'' EPA's Office of 
Pesticides Program will initiate consultation on a limited number of 
EPA-registered pesticides with NMFS SWR later this year and, depending 
on the outcome of that process, NMFS will continue to seek such 
consultations on registered pesticides. NMFS also hopes to begin 
consultations on those pesticides being considered for registration. In 
any case, NMFS recognizes that the above restrictions (labels, state 
guidance, etc.) constitute the only protective guidelines currently 
available to applicators. Therefore, NMFS will work with the 
responsible agencies to determine the extent to which restrictions on 
pesticide use need to be adapted to meet listed salmonid needs and, as 
that process goes forward, individual applicators may look to those 
agencies and NMFS to provide appropriate guidance in the future.
    Comment 228: Two commenters suggested that NMFS should not rely on 
local solutions for pesticides, since three of the four states have 
laws preempting local pesticide regulation.
    Response: The PP&R IPM program does not regulate pesticides. It 
directs the limited application of pesticides by a local government 
agency. NMFS is confident that PP&R has the authority to direct its 
application program.
    Comment 229: One commenter asked that NMFS clarify its definition 
of a pesticide to include any substance that is considered an 
herbicide.
    Response: The commenter is correct about the definition of a 
pesticide. According to EPA, the term ``pesticide'' includes all 
herbicides, insecticides, fungicides, rodenticides, repellents, 
disinfectants, and other compounds that kill, control, or otherwise 
affect pests. The final 4(d) rule will incorporate this definition for 
the term ``pesticide.''

Municipal, Residential, Commercial, and Industrial Development Limit

a. Clarification of Where and How This Limit Applies
    Comment 230: Many commenters requested that the final rule clarify 
where and how ``this limit'' applies. One commenter asserted that the 
rule was so unclear as to require that the limit be removed entirely.
    Response: NMFS has attempted to remove vague and confusing language 
from this final rule and to clarify where the limit applies. This 
particular limit is intended to apply to a broad range of planning 
efforts, ordinances, regulations, and programs (promulgated by city, 
county, and regional governments) that conserve listed salmon and 
steelhead by regulating or otherwise limiting activities associated 
with MRCI development. Some examples are wetland protection ordinances, 
shoreline management and development programs, and urban growth 
management plans. Such activities are not necessarily limited to 
``urban'' areas, because city, county, and regional governmental 
jurisdictions extend to suburban and rural areas as well. NMFS has, 
therefore, clarified the intended scope of this limit by replacing the 
term ``new urban density development'' with ``municipal, residential, 
commercial and industrial (MRCI) development'' to signify activities 
undertaken by cities, counties, and regional governmental entities in 
urban, suburban, and rural areas.
    Comment 231: One commenter requested that the ESA 4(d) limit for 
urban development be more streamlined than the process for developing 
and approving an HCP.
    Response: Once local ordinances or plans are approved, the process 
of implementing MRCI development activities will be very streamlined. 
The responsibility for subsequent project review, approval compliance, 
monitoring, and enforcement will rest with the local jurisdiction. NMFS 
will

[[Page 42458]]

review each project's monitoring plans; however, we will not have a 
role in individual project reviews. In addition, any subsequent ESA 
section 7 consultations for individual projects for which there is a 
Federal nexus should be greatly simplified because the consultation 
will be able to tier off the local jurisdiction's initial analysis. The 
initial ordinance approval process, while subject to the same review 
standard as a section 7 consultation or section 10 permit application 
(i.e., individual ordinances must allow for properly functioning 
habitat conditions) should be considerably more streamlined than the 
HCP process because the procedural requirements are less complex (e.g., 
implementing agreements and NEPA analysis are not required for programs 
under the take limit).
    Comment 232: Several commenters questioned whether the limit 
applies to the redevelopment of areas that no longer support salmon, 
and recommended that development along piped segments of low gradient 
streams should receive a limit on the take prohibitions. Others 
contended that the rule should address current and ongoing impacts from 
urban developments.
    Response: If a stream segment or aquatic feature does not currently 
and has not historically supported salmonids, the limit only applies to 
the extent that downstream areas which do support salmonids rely on 
appropriate input of ecological element (litter fall, gravel 
recruitment, cold water, large wood, etc.) from above to achieve PFC. 
As a local project goes through the permit process, the existing 
condition of a stream segment within a watershed and its contribution 
to the ecological conditions essential to listed fish must be taken 
into account when determining whether and how a redevelopment project 
meets the local ordinances. It is the local jurisdiction's 
responsibility to determine how ordinances are implemented during the 
redevelopment of degraded areas. At a minimum, the ordinances must 
delineate the process for considering the redevelopment of degraded 
areas.
    Comment 233: Several commenters observed that recovering PFC in 
large urban core areas is unrealistic.
    Response: PFC requires the maintenance of habitat functions 
essential to the survival and recovery of listed salmonids, wherever 
those requirements may be found. NMFS agrees that many of the rivers 
and streams that flow through heavily industrialized or otherwise 
developed city centers cannot practically be expected in the near-term 
to resemble a rural river reach in PFC. The concept of PFC recognizes 
and accommodates the fact that essential ecological functions may be 
different in spawning and rearing habitats often found in forested 
environments, for instance, than in migratory corridors, often found in 
urban settings. Nevertheless, the highly modified habitat in urban 
settings still must maintain certain ecological functions that remain 
crucial to the listed species' survival and recovery. In the long run, 
most parcels in existing urban areas will eventually be redeveloped and 
restoration opportunities pursued. Urban rivers and streams will thus 
gradually recover more and more habitat functions over the upcoming 
decades.
    Comment 234: Many commenters contended that the rules should 
include any (not just new) development (or redevelopment) inside or 
outside of the Urban Growth Boundary (UGB) or Urban Reserve Area (URA) 
in any of the affected states. In addition, many others stated that the 
proposed rule does not adequately distinguish between what is expected 
of the various kinds of development and redevelopment.
    Response: NMFS agrees with the commenters that it is the activity, 
not necessarily the jurisdiction, that must contribute to achieving or 
maintaining PFC and has renamed and modified this limit to apply to 
MRCI development.
    Comment 235: Some commenters questioned the need to treat 
development limits for urban and rural landscapes differently. They 
argued for the need to accommodate mature urban areas to protect the 
rural areas.
    Response: NMFS agrees that properly functioning habitat, as 
described in section Sec. 223.203(b)(12)(ii) of the regulatory language 
of this final rule, must be found in both urban and rural landscapes 
and is the foundation of this limit. NMFS also understands, however, 
that development in rural landscapes often requires different 
considerations than it does in urban landscapes. It is true that some 
rural developments, such as destination resorts or high-density 
residential development along rural shorelines, are quasi-urban in 
nature and have similar effects on salmonids and their habitats. The 
reverse can also be true. Conserving and restoring functional habitats 
depends largely on allowing natural processes to increase their 
ecological function, while at the same time removing adverse impacts 
from current practices. Those functional requirements apply regardless 
of where or how development takes place.
    Comment 236: Some commenters requested that NMFS make clear that 
simply because the rule references the Metro Functional Plan, it does 
not mean that local jurisdictions must follow that proprietary program.
    Response: Metro's Urban Growth Management Functional Plan applies 
only to the Metro region, that is Clackamas, Multnomah, and Washington 
Counties and the 24 cities in the Portland, Oregon metropolitan area. 
In order to accomplish the Plan's goals, local jurisdictions will have 
to take a number of actions--primarily by changing local government 
comprehensive plans and implementing ordinances. Other jurisdictions 
wishing to apply for an ESA 4(d) limit must craft their own plans in 
the context of local circumstances. NMFS notes that Metro has not yet 
submitted its Urban Growth Management Functional Plan to NMFS for 
consideration as a limit to the take prohibition, nor has NMFS approved 
it for that purpose. If Metro applies for a limit under this final 
rule, it will be evaluated at that time using the review process 
described in this rule.
    Comment 237: Some commenters stated that NMFS should not allow this 
limit for the Tri-County planning effort in Washington State because 
Tri-County's proposal is ``business as usual,'' and because the Tri-
County implementation process would take too long to provide for 
salmonid recovery. Others felt linkages should be created between the 
Urban Development limit and the watershed plans in the proposed Tri-
County framework.
    Response: NMFS strongly disagrees with the general tenor of this 
comment and continues to actively support and encourage the Tri-County 
process. Certainly the negotiations are addressing difficult and 
complex issues. NMFS remains hopeful that these negotiations will yield 
agreements consistent with the requirements of the ESA and the listed 
fish. If Tri-County applies for a limit under this final rule, it will 
be evaluated at that time using the review process published in this 
final rule.
    Comment 238: One commenter urged NMFS to include a limit for the 
CALFED-Bay Delta Program and other California programs.
    Response: Applying for a limit under the ESA 4(d) rule is a 
voluntary process. Any jurisdiction or organization may negotiate with 
NMFS to create a plan and submit that plan for consideration under the 
MRCI limit. Such entities are also encouraged to bring to the table 
other types of limits that could be covered in a subsequent 4(d) rule 
and develop other plans to conserve the listed species.

[[Page 42459]]

b. Local Government Cost and Staffing Resources
    Comment 239: One commenter expressed concern that the cost of 
mandatory setbacks would discourage redevelopment of brownfield areas.
    Response: Different jurisdictions have the flexibility to tailor 
riparian management areas in urban brownfield areas to match local 
needs and conditions, provided they result in properly functioning 
habitat conditions.
    Comment 240: Many commenters expressed concern that smaller 
jurisdictions do not have the staff and resources needed to comply with 
the urban development limits. One commenter asked for an explanation of 
``adequate funding.''
    Response: Ordinances or plans under which activities will be 
evaluated must be shown to meet PFC as illustrated by the applicable 12 
considerations listed in this final rule, including the fact that the 
jurisdiction in question must demonstrate that it has the ability to 
enforce, monitor, and fund its obligations under the ordinance.
c. Implementation of the 12 Considerations
    Comment 241: Many commenters asked NMFS to clarify how the 12 
considerations are to be implemented or applied. Some thought the rule 
was too cumbersome and onerous, and, therefore, should be delayed or 
phased in. Others requested that NMFS not allow a phase-in approach.
    Response: As the rule describes, NMFS evaluates activities that 
produce or result in conditions on the landscape that contribute to 
properly functioning (habitat) condition. Under this limit, NMFS will 
analyze MRCI ordinances and plans and determine if they will affect a 
condition on the landscape that is important to essential habitat 
functions. NMFS will then determine if that effect actually results in 
conditions that are likely to provide essential habitat functions; if 
it does, then the ordinance or plan may qualify for a limitation of the 
take prohibition.
    The 12 considerations described in the MRCI development limit 
describe specific considerations that NMFS will evaluate when looking 
at MRCI development ordinances and plans. They are based on current 
scientific understanding of salmonid biological requirements (e.g., 
Spence et al., 1996; NMFS, 1996). By assessing these 12 considerations, 
NMFS expects to evaluate the ordinances' efficacy in attaining (or 
maintaining) essential habitat functions or properly functioning 
conditions in various physical settings.
    Comment 242: Several commenters questioned whether the proposed 
rule requires compliance with all 12 considerations. Some stated that 
NMFS should not require that all 12 considerations in the urban limit 
be satisfied at once.
    Response: NMFS acknowledges that in addition to the comprehensive 
Functional Plan being developed by the Metro regional government in 
Oregon, other local planning entities are making significant progress 
in developing innovative MRCI ordinances and programs (e.g., the 
efforts by the Tri Counties and Kitsap County in Washington State). Not 
all local or regional governments have the resources to assemble all of 
their relevant ordinances and planning provisions into a comprehensive 
MRCI growth management program. NMFS is willing to assist such entities 
by reviewing individual ordinances or regulations that local 
governments may choose to submit for consideration under this MRCI 
limit. NMFS will still apply the 12 considerations in evaluating the 
likelihood that any given ordinance or regulation will achieve properly 
functioning conditions for salmonid habitat, but will recognize that 
some criteria may be less relevant than others--depending on the scope 
of the particular ordinance.
    Because NMFS has a relatively limited number of staff members to 
review a potentially significant number of individual MRCI planning 
ordinances, plans, and regulations, NMFS strongly encourages local and 
regional governments to assemble comprehensive planning packages such 
as Metro's Functional Plan. Not only is this a more expeditious and 
efficient approach, it results in a greater likelihood that the MRCI 
growth management program will protect the full suite of essential 
habitat functions. In any case, because staff resources are limited 
NMFS will generally give comprehensive plans rather than individual 
ordinances priority in the review process.
    Comment 243: One commenter requested that NMFS state whether the 
Metro plan meets the 12 considerations.
    Response: Metro has not yet submitted its Urban Growth Management 
Functional Plan to NMFS for consideration as a limit to the take 
prohibition, nor has NMFS approved it for that purpose. If Metro 
applies for a limit under this final rule, it will be evaluated at that 
time using the review process described in this final rule.
d. NMFS' Approval
    Comment 244: Many commenters wanted to know how NMFS would approve 
applications for inclusion in the take limit. Some commenters suggested 
that NMFS needs to establish a rule with a minimum set of clear and 
objective performance standards. Other comments suggested that NMFS 
should work with state agencies to develop state programs that meet 
some or all of the limit in order to help small, financially challenged 
jurisdictions.
    Response: The 12 considerations represent evaluation considerations 
that, if addressed, will help conserve listed salmonids. When a local 
jurisdiction has an MRCI ordinance or plan it believes will attain or 
maintain properly functioning conditions, it is encouraged to pursue 
approval. NMFS will work directly with that entity to develop a product 
that meets the listed species' needs. However, as noted earlier, local 
jurisdictions are strongly encouraged to assemble, to the greatest 
extent practicable, all relevant MRCI development ordinances, 
regulations, or plans into comprehensive packages that NMFS can review 
in total. Such an approach is not only more efficient, it has a much 
greater likelihood of ensuring adequate conservation of salmonid 
habitat conservation than do individual ordinances. Before approving 
any application, NMFS will publish a notice in the Federal Register 
announcing the availability of the application for public review and 
comment. The comment period will be not less than 30 days.
    Comment 245: Some commenters desired to know what NMFS meant when 
it said it would evaluate the limit on a regular basis.
    Response: NMFS anticipates that each limit will be monitored during 
the life of the plan to ensure that management actions are meeting 
their intended purposes. Specific management actions arising under the 
plan will be compared with the conservation objectives to ensure 
consistency with the intent of the plan. Annual monitoring reports will 
be required and formal plan evaluations will take place at broader 
intervals--though not greater than 5 years. These evaluations will 
assess the progress of the plan toward meeting PFC, determine if the 
management actions are making satisfactory progress toward achieving 
the stated objectives, ensure that the actions are consistent with 
current policy, check the original assumptions to see if they were 
correctly applied, assess whether the impacts were correctly predicted, 
ensure that the mitigation measures are

[[Page 42460]]

satisfactory, and determine whether new data are available that would 
require altering the plan.
e. Level of Protection Provided
    Comment 246: Many commenters asked NMFS to clarify what parts of 
the limit are binding and what are not.
    Response: The final rule does not establish any binding 
requirements or regulations on any prospective applicants with respect 
to measures that must be followed to qualify for the take limit. 
Instead, the final rule defines both the considerations and the process 
NMFS will use when reviewing any particular ordinance or plan. Once 
NMFS has reviewed and approved a proposal for inclusion in the limit, 
the applicant is bound by the substantive requirements established in 
the subject ordinance or plan; these will be documented in the relevant 
monitoring, reporting, and enforcement provisions. The final rule 
clearly describes NMFS' authority to withdraw the limit in instances 
where the applicant does not diligently implement the approved 
measures.
    Comment 247: Many stated that the Metro Functional Plan was far too 
restrictive; many others thought it not restrictive enough.
    Response: The limit does not hold out the Metro Functional Plan as 
a standard. Metro has not yet submitted its Urban Growth Management 
Functional Plan to NMFS for consideration as a limit to the take 
prohibition, nor has NMFS approved it for that purpose. In fact, NMFS 
understands that the plan is not yet complete. If Metro applies for a 
limit under this rule, it will be evaluated at that time using the 
review process described in this final rule.
    Comment 248: One commenter asked NMFS to identify and give take 
prohibition limits to land development activities that will not harm 
listed salmonids.
    Response: Development actions that do not harm salmonids or their 
habitats are not affected by the take prohibition. It is not within the 
scope of this final rule to identify the vast number of activities 
(including many development activities) that do not harm listed 
species. However, unmanaged development activities could frequently 
frustrate attempts to meet the 12 evaluation considerations within this 
rule and commonly are among those that have historically destroyed or 
adversely modified critical habitats. On the other hand, activities 
that are carried out according to limits provided by this final rule 
are expected to adequately protect listed salmonids and contribute to 
their conservation.
    Comment 249: One commenter expressed concern that giving local 
jurisdictions a ESA 4(d) limit would not, by itself, help enforce local 
actions necessary to conserve listed salmonids.
    Response: Local jurisdictions are charged with developing and 
carrying out land use programs within the range of listed salmonids. 
Although those plans can be revised to be consistent with scientific 
information used to develop this limit, those same plans are still 
defined and administered through laws and regulations. Ensuring 
compliance with these laws and regulations is a key factor in making 
the plans successful. Eligibility for this limit, therefore, requires 
those plans to include effective enforcement programs and measures to 
educate local citizens, encourage voluntary compliance, and detect and 
address violations.
    Comment 250: One commenter asserted that limits for urban 
development should be analyzed within the cumulative impact context.
    Response: NMFS agrees that cumulative effects should be an 
important consideration in MRCI effects analyses. NMFS is aware that 
comprehensive MRCI development plans frequently will rely upon 
watershed scale efforts to achieve PFC by managing rural and 
agricultural activities in coordination with the cumulative effects of 
more-urban development. To the extent that NMFS must prioritize the 
evaluation process, comprehensive MRCI plans with relatively broader 
scopes of activities, authorities, effects, and geography (and 
therefore greater flexibility in dealing with cumulative effects) will 
generally be evaluated before plans with relatively smaller scopes. 
Applicants with smaller-scale plans should take particular care that 
their effects analyses take cumulative impacts into account.
f. Habitat Restoration
    Comment 251: One commenter felt the new urban density development 
limit should require local governments to address habitat restoration 
and rehabilitation.
    Response: This limit applies to jurisdictions that carry out 
development in a way that adequately limits impacts on listed salmonids 
or contributes to their conservation. Habitat restoration would be 
applicable when it is necessary to rehabilitate former poorly designed 
or implemented practices to achieve properly functioning conditions for 
listed salmonids within that jurisdiction. A specific limit for habitat 
restoration activities is provided in this final rule.
g. Scientific Justification
    Comment 252: Some commenters assert that NMFS has not provided 
adequate scientific justification for this limit. For example, one 
comment requested that NMFS justify why the little remaining habitat is 
important to listed fish, and specifically, what evidence exists to 
support the need for vegetative cover for the entire length of a 
stream.
    Response: Neither Federal Register documents nor U.S. Code is 
written in scientific style, with its thorough support of factual 
assertions through citations. Nevertheless, NMFS is confident that its 
conservation approach in the MRCI limit (and elsewhere in this final 
rule) is scientifically credible. As starting points for investigators, 
NMFS recommends Simenstad et al, 1982, NRCC, 1996, Palmisano et al, 
1993, Gregory and Bisson, 1997, Spence et al, 1996. Essential features 
of salmonid habitats include adequate substrate, water quality, water 
quantity, water temperature, water velocity, cover/shelter, food, 
riparian vegetation, space and safe passage conditions In designating 
critical habitats, NMFS considers the following requirements of the 
species: (1) Space for individual and population growth, and for normal 
behavior; (2) food, water, air, light, mineral, or other nutritional or 
physiological requirements; (3) cover or shelter; (4) sites for 
breeding, reproduction, or rearing of offspring; and, generally, (5) 
habitats that are protected from disturbance or are representative of 
the historical geographical and ecological distributions of the species 
(65 FR 7764, February 16, 2000).
    Vegetative cover is good for a number of essential habitat features 
such as water quality, water temperature, bank stability, stream 
complexity, cover/shelter, and food. In MRCI environments, the loss of 
riparian vegetation, coupled with reduced base flows, causes streams to 
heat up more during summer. In addition, the lack of large wood 
recruitment combined with increased peak flows heightens the severity 
of streambed scouring and downstream wood transport. This causes stream 
channel simplification and greater instability. In order to reverse the 
downward population trend for listed salmonids and steelhead, the 
structure and function of their aquatic habitats must be restored to 
whatever degree possible.

[[Page 42461]]

h. Specific Comments on the 12 Considerations
12.i.A. Siting Development
    Comment 253: One commenter requested a definition of ``area of high 
habitat value.''
    Response: This phrase refers to an area in a PFC, one that is 
better functioning than neighboring sites, or one with the potential to 
be fully restored. To achieve properly functioning condition and high 
habitat values within an MRCI area, new and existing riparian 
management areas need to be connected across land ownerships and 
political jurisdictions whenever land is developed or redeveloped, or 
brought into an urban growth boundary.
    Development activities should be sited in appropriate areas. They 
should avoid unstable slopes, wetlands, areas already in a PFC, areas 
that are more functional than neighboring sites, and areas with the 
potential to be fully restored. A description of particularly sensitive 
areas is included in the Fish and Forest Report cited elsewhere in this 
final rule. Such sites include, but are not limited to, soils 
perennially saturated from a headwall or a sideslope seep or spring, 
permanent initiation points of perennial (stream) flow, alluvial fans, 
the intersections of two perennial streams. Development activities in 
any particular jurisdiction need to be open to coordination with 
adjacent jurisdictions to ensure landscape-scale conditions are 
providing essential habitat function.
12.i.B. Stormwater Management
    Comment 254: Many commenters asserted that the stormwater 
consideration was poorly defined and urged that NMFS establish stronger 
and more specific stormwater standards. Others felt that NMFS should 
allow flexibility in regional performance standards and in areas where 
avoiding stormwater impacts is not feasible. One comment suggested 
replacing stormwater discharge language with specific methods for 
reducing development effects.
    Response: NMFS believes that applying the same standards and 
considerations to all jurisdictions will not provide the most effective 
stormwater management because different methods will be more effective 
in different jurisdictions--depending on factors such as the existing 
land use in the subbasin or watershed, soil types, rainfall patterns, 
the degree to which the natural stream hydrograph has been altered, 
etc. NMFS will consider these factors, methodologies, and standards 
when reviewing city, county, and regional government ordinances for 
approval.
    Comment 255: Some commenters stated that in an urban setting, it 
may not be advisable or feasible to protect or restore historic stream 
hydrographs and meandering processes. They asserted that the phrase 
``where feasible'' should be added to stormwater and meander 
provisions.
    Response: It is NMFS' intention to use the best available 
technologies to determine the most economic means to contribute to the 
achievement and maintenance of properly functioning conditions. NMFS 
believes this provision is justified by the need to significantly 
improve habitat conditions in a given MRCI area and thereby reduce the 
risks to listed species and ensure that they have an adequate potential 
for recovery. This can be accomplished by guiding land use practices on 
the watershed scale in order to reduce impervious surfaces, maintain 
forest cover, and natural soils. These conditions will, in turn, 
maintain essential habitat processes such as natural water infiltration 
rates, transpiration rates, stormwater run-off rates, sediment 
filtering, and provide hydrographic conditions that maintain and 
sustain listed salmonids. Where stream hydrographs cannot be restored, 
compensatory mitigation should be provided to offset the loss of 
habitat function. Mitigation may include stream corridor restoration by 
reestablishing pre-development hydrological regimes, controlling 
pollution sources, stabilizing channel morphologies, engaging in 
sediment remediation, restoring instream structure, and reestablishing 
riparian cover. Many of these activities may be guided by watershed 
scale planning and analysis which includes management of rural and 
agricultural activities.
    Comment 256: Some commenters requested further clarification on 
peak flows and desired that NMFS place emphasis on biologically 
significant flows (i.e., water velocities suitable for juvenile fish) 
instead of peak flows.
    Response: Changes in hydrological processes associated with the 
effects of MRCI development typically result in a flow regime that is 
more episodic and generates higher peak flows, faster runoff, and 
reduced base flows during periods without precipitation. Peak flows and 
base flows are both ecologically significant. Peak flows are primary 
agents of instream and riparian habitat change during storm events. 
Base flows sustain aquatic life during dry portions of the year. Other 
hydrological characteristics are also significant in the design of 
stormwater systems, for example, the need for water velocities suitable 
for juvenile salmonids.
    Stormwater management programs associated with MRCI development 
activities should avoid impairing water quality and quantity. Such 
programs should preserve or move stream flow patterns (hydrograph) 
closer to historic hydrologic conditions (e.g., peak flows, base flows, 
durations, volumes, and velocities) that maintain properly functioning 
habitat conditions. This can be accomplished by guiding land-use 
practices at the watershed scale in order to reduce impervious 
surfaces, maintain forest cover, and retain natural soils. These 
conditions will, in turn, maintain essential habitat processes such as 
natural water infiltration rates, transpiration rates, stormwater run-
off rates, sediment filtering, and provide hydrographic conditions that 
sustain aquatic life. NMFS will evaluate the effects that city and 
county ordinances (submitted for approval under this limit) have on 
relevant hydrologic processes.
12.i.C. Riparian Management Areas
    Comment 257: Many commenters were concerned that the riparian 
management requirements were vague and uncertain. Some viewed this as 
creating opportunities to evade the intent of the riparian provision, 
while others wanted NMFS to make clear the fact that the intent was to 
be flexible and non prescriptive.
    Response: The goal of MRCI riparian management is to protect and 
restore properly functioning riparian condition. To achieve this goal, 
programs must protect and restore soil quality--including controlling 
erosion and conserving soil productivity--and ensure that a diverse 
plant community with a vigorous age class distribution is well-
distributed across a riparian management area. This contributes to the 
natural succession of riparian vegetation, produces habitat features 
essential to fish health, and protects water quality and flow 
conditions needed to meet fish habitat needs downstream. In MRCI areas, 
where riparian areas are usually subject to frequent and pervasive 
disturbance, the overland movement of nutrients, pesticides, and 
sediment can be pervasive. Thus, properly functioning MRCI riparian 
areas must also intercept and immobilize large pollutant loads, reduce 
runoff energy, and decrease the amount of nutrients being delivered to 
the streams. NMFS is not able to define the specific management 
strategies needed to achieve PFC in every conceivable situation 
involving a

[[Page 42462]]

riparian area, particularly where a restoration component is necessary. 
The basic goal of riparian management is to establish management that 
allows the riparian area to proceed on a growth and succession pathway 
toward a mature riparian condition. As noted earlier, mitigation should 
be developed for functions that cannot be maintained or restored at the 
site level and may likely require watershed-scale planning. As several 
commenters requested, this allows different jurisdictions the 
flexibility to tailor riparian and wetland management to match local 
needs and conditions.
    Comment 258: A large number of commenters addressed the appropriate 
width of urban riparian management areas. Many comments focused on 
management area width without regard for location, riparian 
composition, or management strategy. One comment noted that the width 
of the urban riparian management area was greater than for lands 
affected by the Washington forest practice limit.
    Response: There are differences in ecological function among 
riparian areas in the MRCI and forest management settings. These 
include the relative importance of pollutant and runoff control, the 
distribution of nutrient cycling and energy flow, and the efficiency of 
natural recovery mechanisms. However, the need to define properly 
functioning condition based on the salmon's biological requirements 
does not vary by land use type.
    NMFS' evaluations of MRCI development are significantly influenced 
by a body of science indicating that essential habitat functions are 
affected to varying (but significant) degrees by streamside activities 
conducted within a distance equal to the height of the tallest tree 
that can grow on that site (known as the site potential tree height). 
This was the basis for the example in the preamble to the proposed rule 
that used 200 feet (60.9 meters) as the approximate span of a site 
potential tree height. The distance is measured not from the stream 
itself, but from the edge of the area within which a stream naturally 
migrates back and forth over time (the channel migration zone).
    NMFS believes that the most effective way to ensure PFC is to 
manage MRCI development activities in riparian areas so that their 
impacts on habitat functions are minimal at the streamside, but may 
gradually increase with distance from the stream. For example, the 
riparian area is often managed with two zones, an inner zone that has 
the highest level of protection and is managed primarily to provide 
stream function by avoiding disturbance, and an outer zone managed for 
both stream function and as a transition to more heavily used upland 
areas. The width of each zone should be commensurate with the functions 
they are intended to provide and, in MRCI settings, reflect the need to 
buffer an upland disturbance regime that may be more severe than in 
forest lands; e.g., more frequent entry by humans and domestic animals 
or exposure to large amounts of nutrients, pesticides, and sediment.
    Comment 259: Several commenters supported a preference for using 
native riparian vegetation.
    Response: NMFS agrees that to meet the final rule's intent, 
existing native trees and other native vegetation in riparian areas 
should be protected and native vegetation should be used for 
restoration plantings wherever appropriate native stock are available 
to meet the project needs. Non-native stock or seed should only be used 
after a good faith attempt has been made to locate native materials. If 
native materials are unavailable, ecologically functional equivalents 
that are known not to be aggressive colonizers may be substituted. When 
the scope of an MRCI redevelopment activity may include modifying a 
riparian site with existing, non-native vegetation, it may be important 
to restore native vegetation on the site in order to generate the 
essential habitat functions discussed above.
12.i.D. Stream Crossings
    Comment 260: Several commenters requested clearer criteria for 
culvert installation and bridge crossings. Some wanted the referenced 
guidance document to be included in the final rule.
    Response: Activities such as road and stormwater system design and 
construction or placement of utility corridors should avoid stream 
crossings wherever possible in order to prevent soil disturbance and 
sediment and flow problems in the stream. Where a crossing is 
unavoidable, the condition of the crossing should minimize its affect 
by preferring bridges over culverts; sizing bridges to a minimum width; 
designing bridges and culverts to pass at least the flow level and 
debris associated with a 100-year flood event; and meet ODFW or WDFW 
criteria (ODFW's Oregon Road/Stream Crossing Restoration Guide, Spring, 
1999 and WDFW's Fish Passage Design at Road Culverts, March 3, 1999). 
These two documents will be included in a guidance document to be 
published by NMFS at the same time as this final rule.
    Comment 261: Many commenters stated that new and existing linear 
facilities--such as utility corridors--that cross rivers and streams 
should be included in this section. Other commenters wanted the 
language ``wherever possible'' used in the sentence ``avoid stream 
crossings by roads wherever possible'' to be strengthened or deleted 
because it creates a loophole. In general, they desired that NMFS 
establish criteria to determine if a crossing is necessary.
    Response: Linear facilities will be included in the stream crossing 
section of this final rule. As to the necessity of individual 
crossings, NMFS believes the city or county jurisdictions should 
perform the lead role in developing these criteria. The applicable 
state fish and wildlife agency can provide considerable guidance in 
developing these criteria--both through their existing codes and 
regulations and in their guidance documents (listed previously in this 
rule).
12.i.E. Channel Migration Zones
    Comment 262: One commenter requested an explanation of the term 
``channel migration zone'' (CMZ) and asked that it be linked to 
landscape features that developers and planners can understand.
    Response: A CMZ is defined by the lateral extent of active channel 
movement along a stream reach over the past 100 years. Evidence of 
active movement over the 100-year time frame can be inferred from 
aerial photos or from specific channel and valley bottom 
characteristics and it was chosen for that reason. Also, this time span 
typically represents the time it takes to grow mature trees that can 
provide functional large woody debris to streams. A CMZ is not 
typically present if the valley width is generally less than two 
bankfull widths, is confined by terraces, no current or historical 
aerial photographic evidence exists of significant channel movement, 
and there is no field evidence of secondary channels with recent scour 
from stream flow or progressive bank erosion at meander bends.
    Comment 263: One commenter requested that no bank hardening be 
allowed within the CMZ.
    Response: Gradual bank erosion and meander migration within the CMZ 
are important ecological processes that provide geomorphic diversity 
and enable habitat development. Constructing rigid bank protection 
structures within the CMZ can prevent properly functioning conditions 
from being attained because it disrupts natural channel processes and 
initiates

[[Page 42463]]

a cycle of altered erosion patterns flanked by new bank protection 
measures. The end result can be an entire reach being lined with rigid 
bank protection.
    Where erosion within a CMZ is an issue, bank erosion should be 
controlled through vegetation, carefully bioengineered solutions, or 
other innovative ``soft'' bank protection techniques that allow 
eventual deformation by channel forming processes. Rip-rap blankets or 
similar hardening techniques should be avoided unless bioengineered 
solutions are not possible because of particular site constraints. NMFS 
finds that WDFW's publication, Integrated Streambank Protection 
Guidelines'' (June, 1998) can provide sound guidance with respect to 
controlling bank erosion, particularly in the area of mitigation for 
gravel recruitment.
    Comment 264: One commenter supported the concept of protecting the 
CMZ in streams and floodplains, and requested that the same protection 
be extended to prevent bank hardening in lake, estuarine, and marine 
shorelines.
    Response: NMFS agrees that natural geomorphic diversity and habitat 
development are important in all fish-bearing waters, including 
estuarine and marine systems where the habitat formation processes of 
many wetlands, shorelines, and waterways have been impaired by the 
construction of dikes, levees, breakwaters, sea walls, shore protection 
systems, ports, moorages, and other hardened structures. While the CMZ 
concept itself is only applicable to systems with a definable channel, 
it is NMFS' intent to address, avoid, and minimize these habitat 
threats whenever such structures are constructed or maintained.
12.i.F. Wetlands
    Comment 265: One commenter recommended that some wetlands be 
excluded from the take prohibitions and suggested that not every 
disturbance in a wetland management area should be prohibited.
    Response: Take is prohibited. In general, MRCI development 
activities should protect wetlands and the vegetation surrounding them 
and thereby conserve natural wetland succession and function. The 
reason for this is that wetlands and their associated ecotypes support 
salmonid food chains, protect shorelines, purify water, store water 
during flood events, recharge groundwater, and provide specialized 
habitat for rearing and migrating salmonids.
    Drained hydric soils that are now incapable of supporting 
hydrophytic vegetation because of a change in a water regime are not 
considered wetlands. The basic goal is to establish management that 
allows wetlands to maintain ecological functions, not to exclude all 
disturbances. Activities conducted in a wetland management area are 
generally subject to the COEs' permitting process under section 404 of 
the CWA and are necessarily subject to ESA section 7 consultation.
12.i.G. Hydrologic Capacity
    Comment 266: Some commenters requested that NMFS clarify its intent 
in protecting hydrologic capacity.
    Response: MRCI development activities should preserve intermittent 
and perennial streams' hydrologic capacity to pass peak flows. 
Decreasing the hydrologic capacity of stream systems by filling in the 
stream channel for road crossings or other development can increase 
water velocities, flood potential, and channel erosion, degrade water 
quality, disturb soils and groundwater flows, and alter vegetation 
adjacent to the stream. Preserving hydrologic capacity provides 
conditions needed to maintain essential habitat processes such as water 
quantity and quality, streambank and channel stability, groundwater 
flows, and riparian vegetation succession. Filling and dredging in 
stream channels should be avoided unless they occur in conjunction with 
an unavoidable stream crossing.
    Comment 267: One commenter referred to the need to strengthen the 
Metro Title 3 flood management standards and ensure that riverine and 
floodplain systems are reconnected and historic floodplain functions 
are restored.
    Response: Metro is currently seeking to improve Title 3 as part of 
a broader effort to comply with Oregon's statewide Planning Goal 5--the 
state's land use goal for natural resource and open space protection, 
and Oregon Administrative Rule 660, Division 23 (the ``Goal 5 rule''). 
This effort is focused specifically on strengthening Title 3 by adding 
a program to protect, restore, and enhance fish and wildlife habitat 
functions in urban riparian corridors. NMFS is participating in a 
technical advisory role. Metro has not yet submitted its Urban Growth 
Management Functional Plan to NMFS for consideration as a limit to the 
take prohibition, nor has NMFS approved it for that purpose. If Metro 
applies for a limit under this final rule, it will be evaluated at that 
time using the review process described in this final rule.
12.i.H. Landscaping
    Comment 268: Two commenters suggested more stringent standards for 
landscaping. One commenter proposed that watering, as well as 
fertilizers, pesticides, and herbicides, be eliminated in urban 
landscapes; the second proposed regulations requiring the use of native 
vegetation to reduce water use.
    Response: Residential and commercial landscaping can be designed, 
installed, and maintained to reduce the need for water, herbicides, 
pesticides and fertilizer. Doing so will help maintain essential 
habitat processes by conserving water, reducing flow demands that 
compete with fish needs, and decreasing the amount of chemicals that 
contribute to water pollution in streams and other water bodies that 
support salmonids. NMFS relies on local ordinances to address planting 
and water use.
12.i.I. Erosion/Sedimentation
    Comment 269: One commenter asked that NMFS clarify its expectations 
for erosion control measures.
    Response: MRCI development activities should prevent erosion and 
sediment run-off during and after construction and thus prevent 
sediment and pollutant discharges. At a minimum, these activities 
should include detaining flows, stabilizing soils, protecting slopes, 
stabilizing channels and outlets, protecting drain inlets, maintaining 
BMPs, and controlling pollutants. This can be accomplished by applying 
seasonal work limits, phasing land clearing, maintaining undisturbed 
native top soil and vegetation, etc.
12.i.J. Water Supply/Screening
    Comment 270: Several comments called for caution and flexibility 
concerning water supply development and water diversion screening; 
others wanted specific restrictions not identified in the proposed rule 
or mandatory conservation measures for existing developments.
    Response: Water supply development can profoundly affect surface 
and groundwater hydrological processes. Water supply demands should be 
met without impacting flows needed for threatened salmonids--either 
through direct withdrawals from the streams or through groundwater 
withdrawals. Water diversions should be positioned and screened to 
prevent salmonid injury or death. When existing regulations do not 
protect the stream flows that salmon need, appropriate additional 
measures will need to be identified before NMFS

[[Page 42464]]

approves an MRCI development ordinance.
12.i.K. Enforcement, Funding, Reporting, etc.
    Comment 271: Several commenters supported the monitoring provisions 
and requested that specific monitoring and implementation programs be 
described. In contrast, others concluded that by including all 
necessary enforcement, reporting, and implementation mechanisms NMFS 
has the potential to be arbitrary in its review of programs. It was 
suggested that NMFS make the reporting requirement biennial instead of 
annual.
    Response: During the ordinance or plan development and approval 
process, NMFS will work closely with the local jurisdiction to identify 
and develop those monitoring mechanisms applicable to the listed 
species, their habitat, and the local jurisdiction. The existing 
condition of the salmonid habitat in the watersheds, the rate of 
projected growth, and other factors will be used as a baseline for the 
monitoring.
12.i.L. Comply with Other State and Federal Laws
    Comment 272: Some commenters wanted to exclude this provision 
because they believed it exceeded NMFS' authority and because other 
programs exist to assure compliance.
    Response: This subsection notifies applicants of the continuing 
obligation to ensure that their developments comply with existing state 
and Federal rules and regulations, as well as with this final rule in 
order to be eligible for the limit to the take prohibition. Further, an 
applicant should automatically assume that compliance with the this 
final rule necessarily meets existing regulatory requirements of local 
and state agencies.

Forest Management Activities in Washington

    Comment 273: Many commenters wanted to know how the April 29, 1999, 
Forest and Fish Report (FFR) process under section 4(d) of the ESA 
compares with the process for issuing an incidental take permit issued 
under section 10. Some of these commenters misunderstood the intent of 
the FFR and others mistakenly believed that the proposed limit could 
result in issuing an incidental permit, or could be in effect for 50 
years.
    Response: While an ESA section 10 HCP may be developed by a non-
Federal entity using many of the elements of the FFR, that process has 
not yet progressed to the point that NMFS has become involved. In other 
words, it would be many months before anyone applies for an HCP based 
on the FFR. At this time, NMFS is simply describing the circumstances 
in which an entity or actor can be certain it is not at risk of 
violating the take prohibition or of consequent enforcement actions, 
because the take prohibition would not apply to programs within those 
limits. And, unlike an HCP with ``No Surprises'' assurances, under the 
4(d) limit NMFS may require FFR to be adjusted in the future. For 
habitat-related limits on the take prohibitions, changes may be 
required if the program is not achieving desired habitat functions, or 
where even with the habitat characteristics and functions originally 
targeted, habitat is not supporting population productivity levels 
needed to conserve the ESU.
    Comment 274: Some commenters wanted to know what role NMFS played 
in developing the FFR. Some commenters believed that NMFS had already 
approved the Washington State Forest Practice Emergency Rules without 
following the National Environmental Policy Act (NEPA), and other 
commenters wanted to know how NMFS interacted with other resource 
agencies.
    Response: Along with other natural resource agencies at the state, 
tribal, and Federal levels, NMFS participated in multi-party 
negotiations with representatives of the commercial forest managers in 
Washington State from about April of 1997 through April of 1999. NMFS 
staff provided technical assistance to several of the work groups 
tasked with providing the scientific underpinnings for various elements 
of the FFR. Also, NMFS staff helped explain ESA procedures and 
implications to the entire negotiating group.
    While NMFS considers the product of those negotiations--the FFR--to 
form the core of the ESA 4(d) limit for forestry on non-Federal lands 
in Washington State, the report will continue to be worked on for at 
least another year as various sections are refined and completed. Since 
the FFR was initially published in April of 1999, NMFS staff have made 
technical and policy contributions to many sections of the report. 
These include, but are not limited to, FFR ``Schedules'' (essentially, 
technical appendices) for Channel Migration Zones, Road Management, 
Placement of Large Woody Debris, Conversion of Hardwood Riparian Zones, 
Adaptive Management, and Resource Objectives. Some of these products 
are formalized as Washington Forest Practice Board (WFPB) Manuals 
associated with the Emergency Forest Practice Rules (that became 
effective March 20, 2000) and have been evaluated by the Department of 
Natural Resources (DNR) in their State Environmental Policy Act Draft 
Environmental Impact Statement (SEPA DEIS). This document may be found 
on the web at www.wa.gov/dnr/htdocs/fp/fpb/pdfiles/>.
    Comment 275: Many commenters stated that the FFR was severely 
flawed. As evidence, they pointed to a critique organized by the 
Society for Ecological Restoration.
    Response: Four individual scientists participated in a review of 
the FFR that the Society for Ecological Restoration (SER) organized. 
The American Fisheries Society (AFS) was solicited to review SER's 
material, but contrary to purported statements on behalf of SER, AFS 
did not review or endorse any of the reviewers' work products. The AFS 
repeatedly asked the SER to retract and correct this inappropriate 
attribution. NMFS believes that, while there are useful parts of the 
report, the Society's critique of the FFR was flawed by: (1) a limited 
understanding of the policies, regulations and intent of the ESA (2) an 
incomplete understanding of all the elements of FFR, which led to (3) 
overstatements of the perceived weaknesses in the FFR.
    Specifically, the report claimed the FFR could result in: too-warm 
waters flowing from some non-fish bearing streams into fish-bearing 
waters; a failure to identify some small fish-bearing streams; 
inadequate assessment of some potentially unstable slopes; potential 
increases in peak-flows that could generally harm incubating fish eggs; 
a potential reduction in future recruitment of woody material from some 
non-fish-bearing streams into fish-bearing streams; excessive 
disturbance and potential delivery of sediments from some non-fish-
bearing streams into fish-bearing streams; and, inadequate 
identification of impaired watershed conditions that may need extra 
protection. NMFS has assessed all these concerns in light of the best 
available scientific and commercial information and generally agrees 
with the environmental analysis summarized in the SEPA DEIS. The 
moderate environmental risks and levels of uncertainty associated with 
the FFR are directly addressed by the adaptive management program and 
the adjustable nature of the ESA 4(d) limit.
    Comment 276: Several commenters wanted pesticide application 
covered in the FFR 4(d) limitation while another commenter did not.
    Response: The FFR proposes certain guidelines for pesticide 
applications

[[Page 42465]]

which can be found at: www.wa.gov/dnr/htdocs/fp/fpb/forests&fish.html#APPE. Due to the lack of information on specific 
pesticides proposed for use under the FFR and their potential for 
lethal and sub-lethal effects on fish or, as one commenter put it, an 
uncertainty that needs to be addressed, the limitation associated with 
the FFR does not include pesticide application.
    Comment 277: Many commenters questioned how NMFS could ensure that 
the riparian conditions essential to listed fish survival and recovery 
would continue to function properly. Other commenters asked for a clear 
description of Desired Future Condition for riparian forests. Some 
commenters asked that NMFS prepare forest management standards for 
watersheds.
    Response: The riparian conservation elements in the FFR are 
expected to play a major role in conserving salmonids and creating 
properly functioning conditions on non-Federal forest lands in 
Washington State. The FFR offers detailed, protective management 
strategies for three different forest land ecotypes in Washington as 
well as for fish- and non-fish-bearing streams throughout the state. 
NMFS has carefully examined these protections and management strategies 
and has determined that they sufficiently conserve the listed salmonids 
and will promote properly functioning habitat condition wherever they 
are applied. The best place to examine these management measures is in 
the FFR itself.
    Comment 278: Many commenters expressed the need to improve forest 
road management and desired to know how the question was addressed in 
the FFR.
    Response: Forest roads have the potential to affect aquatic 
ecosystems primarily by: generating and delivering fine sediments from 
road surfaces and ditches; delivering catastrophic sediment inputs as a 
result of road-related slope failures; blocking fish passage; 
disrupting the downstream routing of sediments and organic materials; 
reducing floodplain function; and modifying hydrologic patterns (e.g., 
the timing and intensity of peak flows). The FFR addresses all of these 
effects through a revised set of BMPs that govern road construction and 
maintenance. The BMPs require road maintenance and abandonment plans, 
set a functional resource objective for hydrology that virtually 
disconnects road drainage from stream systems, and describe a 
functional resource objective for road-related fine sediment that 
limits the length of ditch line that can deliver sediment to streams. 
Moreover, the FFR addresses existing road problems by requiring every 
forest landowner to produce a Washington State DNR-approved Road 
Maintenance and Abandonment Plan by 2005.
    Comment 279: Many commenters did not believe that FFR or the 
Emergency Rules offered enough protection with regard to unstable 
slopes to meet the intent of the proposed limit.
    Response: The goal for managing unstable slopes is to avoid 
increasing or accelerating the naturally occurring landslide rate (and 
volume) in forested watersheds, while still recognizing that mass-
wasting is an essential watershed process element that helps route 
large woody debris through the stream system. The FFR provides general 
guidance about slope hazard by identifying four primary groups of land 
forms generally understood to be at risk for failure and potential 
sediment delivery: (1) Inner gorges, convergent headwalls, and bedrock 
hollows steeper than 70 percent; (2) toes of deep-seated landslides 
with slopes steeper than 65 percent; (3) groundwater recharge areas for 
deep-seated landslides in glacially formed terrain; and (4) the outer 
bends of meandering channels. The FFR lays out a detailed process for 
scrutinizing any proposed forest management activities in such areas 
and commits to support a team of geologists that will map any other 
potentially unstable areas in the state. NMFS has carefully considered 
these and the other basic protections set forth in the FFR and believes 
that the overall approach fits with the limit. Moreover, the risk from 
unstable slopes is expected to decrease as the adaptive management 
process moves forward and more and better tools are brought to bear on 
the problem of avoiding sediment inputs.
    Comment 280: Some commenters stated that the FFR used a faulty 
system of stream-typing. They were concerned that an out dated system 
would continue to be used and, as a result, some fish-bearing streams 
might not be identified for protection.
    Response: The FFR classifies streams and dictates levels of 
riparian and other protections based on the potential for a given 
channel to support fishes of any species at any time of the year. 
Seasonal fish-bearing streams are protected as if they were perennial. 
This habitat-based stream typing will replace the current emergency 
rule as GIS-based stream habitat models are developed (they are 
expected to be complete by June of 2001). For now, the older stream 
typing system--based on fish presence--will continue to be used; though 
it will also be upgraded through the WFPB Emergency Rule (March 20, 
2000). Both of these stream-typing systems are based on judgements of 
the geographic threshold of perennial flow. These are considered to be: 
a sub-watershed of 13 acres in western coastal Washington, 52 acres in 
all other regions of Western Washington, and 300 acres in eastern 
Washington.
    Comment 281: How does the FFR address potential changes in 
watershed hydrology resulting from forest practices? Some commenters 
thought NMFS should add provisions that would help maintain natural 
hydrology by limiting clear cut areas. Others urged NMFS to set 
standards for tree regrowth to aid watershed recovery after logging.
    Response: The FFR proposed that forested watersheds be managed to 
meet a functional Resource Objective (Schedule L-1, in the FFR) that 
limits increases in peak flows and other consequences of altered 
hydrology. This Hydrology Resource Objective is still undergoing 
development. When complete, it will provide both a quantitative 
approach (based on changes in peak flow intensity or duration) and an 
objective based on the actual streambed effects arising from altered 
hydrology to choose from--depending on which is appropriate to the area 
in question. In both cases the emphasis will be on those watershed 
portions susceptible to rain-on-snow events, which are widely 
considered to have the greatest potential to alter peak stream flows 
and cause scour.
    The BMPs for roads are also closely related to this issue (see 
earlier discussion for road-related hydraulic and sediment effects). In 
addition, the parties to the FFR committed to revising the Hydrology 
Module in the Washington Forest Practice Board's (FPB's) Watershed 
Analysis Methodology in order to more accurately assess hydrologic 
effects. Finally, the DNR also maintains authority to place conditions 
on any proposed Forest Practice if there is cause to believe that 
altered hydrologic conditions are of concern. Therefore, NMFS does not 
believe it necessary at this time to proposed additional conservation 
measures relating to watershed hydrology.
    Comment 282: Many commenters wanted to know how NMFS would monitor 
activities under the FFR and use that data to determine whether rule 
adjustments were necessary.
    Response: The FFR proposes an elaborate process for designing and 
implementing a monitoring and research program that will be used to 
adapt forestry activities through changes in the Washington Forest 
Practice Rules.

[[Page 42466]]

The adaptive management process is presented in Appendix L of the FFR. 
Essentially, the protocols and procedures for conducting adaptive 
management research and monitoring must be approved by Washington's 
FPB. An administrator employed by Washington DNR will oversee the 
program and assist the FPB in its task.
    Comment 283: Many commenters stated that the FFR was too cumbersome 
for the Washington DNR to be able to implement.
    Response: The Washington Forest Practices Board described their 
version of FFR, as Alternative 2, in the space of about 18 pages in the 
SEPA DEIS. The agency responsible for ensuring compliance with state 
Forest Practices--the Washington DNR--was a full participant in the 
negotiating process that led to FFR development. Part of their role was 
to codify and implement the proposed conservation measures. The first 
step of that codification was completed in February, 2000, when the FFR 
was substantially instituted as ``emergency rules'' for state forest 
practices. All necessary Washington DNR staff have undergone extensive 
training to implement the Emergency Rules.
    Comment 284: Several commenters were concerned about the level of 
protection provided to wetlands, specifically forested wetlands. Other 
wetland concerns revolved around potential impacts on hydrology and 
water temperature as a result of effects on groundwater in up-slope 
areas. Also, some commenters indicated that the CMZ definition was too 
narrow and would not provide adequate protection.
    Response: NMFS agrees there is uncertainty associated with forest 
management activities near wetlands in terms of how those activities 
might impact fish habitat. NMFS generally agrees with the analysis 
provided in the Washington State SEPA DEIS, section 3.5.2. That 
document can provide commenters with further information about the 
effects certain activities may have on wetland areas. In addition, the 
rule outlines the process for adjusting itself--a process that may be 
necessary as new information on the effects of specific forest 
practices comes to light.
    The March 2000, Board Manual for Emergency Rules, section 2, 
explains the standard method for measuring CMZs and offers revised 
Standard Methods guidance. In it, several different ways of determining 
the CMZ are described, e.g., using historic aerial photographs, 
intensive field exercises, and field review by a channel expert.
    Comment 285: Several commenters wanted the limit to include 
alternative plans that would give landowners managing areas less than 
20 acres in size more operational flexibility. One commenter asked for 
clarification and requested that the limit include alternative plans 
that would help avoid any take liability.
    Response: Within the construct of the FFR, alternate plans for 
forest management are allowed provided that the effect of these 
actions, as judged by the Washington DNR, conserves physical and 
biological processes at least as well as the base prescriptions. The 
purpose of this allowance was to address unique sites and operational 
configurations that required some departure from standard approaches. 
The alternative plan management strategy must protect public resources 
at least as effectively as the basic rules. If approved, the 
prescriptions set forth in an alternative plan would be substituted for 
the prescriptions in the corresponding basic rules. NMFS includes in 
this limit only those alternative plans in the FFR that have been 
demonstrated to adequately protect listed salmon, and that provide 
NMFS--or any resource agency or tribe NMFS designates--review 
opportunity at every stage of development and implementation. Such 
review may cause a plan to be excluded from this limit.
    Comment 286: Many commenters asserted that NMFS had no scientific 
basis to expect that the limit would contribute to salmon recovery.
    Response: As the proposed rule states, ``this proposed rule 
restricts application of the take prohibitions when land and water 
management activities are conducted in a way that will help attain or 
protect properly functioning habitat. Properly functioning habitat 
conditions create and sustain the physical and biological features that 
are essential to conservation of the species. Properly functioning 
habitat conditions are conditions that sustain a watershed's natural 
habitat-affecting processes (bedload transport, riparian community 
succession, precipitation runoff patterns, channel migration, etc.) 
over the full range of environmental variation, and that support 
salmonid productivity at a viable population level.'' After carefully 
evaluating the various components of the FFR--as described in the 
proposed rule and discussed in pervious responses, NMFS has concluded 
that applying the FFR will help maintain and attain properly 
functioning habitat conditions and will, therefore, contribute to 
recovery.
    Comment 287: A number of commenters suggested that NMFS should 
include the state forest practice rules from Oregon, California, and 
Idaho in the limit.
    Response: At the time the limit was proposed for the FFR in 
Washington state, NMFS had not been presented with any other forest 
practices regulatory framework that was designed to conserve listed 
anadromous fish. For several years, NMFS has been discussing with state 
agencies in Oregon and California ways to strengthen the fish 
conservation aspect of forest practice rules in those states. NMFS 
wishes to continue working with all affected governmental entities in 
strengthening, identifying, and creating management programs that 
fulfill the listed salmonids' biological requirements. For programs 
that meet those needs, NMFS can provide ESA coverage through 4(d) 
rules, section 10 research and enhancement permits or incidental take 
permits, or through section 7 consultations with Federal agencies. A 
4(d) rule may be amended to add new limits on the take prohibitions, or 
to amend or delete limits as circumstances warrant.

General

    Comment 288: A broad array of interests asserted that their 
activities were, at most, only minimally harmful to salmonids and that 
natural environmental fluctuations and activities being conducted by 
others were responsible for the recent drastic declines in salmonid 
numbers throughout the Northwest and California. Among the activities 
and causes listed as most harmful were logging, grazing and other 
agricultural practices, pesticide use, various habitat-altering 
actions, urban development, sport fishing, commercial fishing, drift 
net fishing, tribal fishing, recreational fishing, ocean and estuarine 
conditions, hydropower development, marine mammals, avian predators, 
other predators, and so forth.
    Response: Comments of this nature have been made in response to 
essentially every listing and critical habitat proposal NMFS has put 
forth over the last decade. As a result there is a great deal of 
information on these factors available in any one of a number of 
Federal Register documents and it need not be repeated in detail here. 
Nonetheless, it should be pointed out that the very number of 
commenters and the range of the causes cited are themselves indicative 
of the breadth and depth of the problems facing Pacific salmonids. 
Therefore, NMFS acknowledges that all of these factors have played a 
role in the species' recent declines; as evidence, most of the factors 
that commenters identified were

[[Page 42467]]

specifically cited as risk agents in the West Coast Chinook Salmon 
Status Review (Myers et al., 1998).
    The two primary themes that repeatedly arise in these comments 
revolve around whether the massive declines in salmonid abundance are 
brought on by natural conditions or human alteration of the 
environment. NMFS recognizes that natural environmental fluctuations 
and increasing numbers of natural predators have recently had negative 
impacts on the species. However, NMFS believes human-induced impacts 
(e.g., harvest and widespread habitat modification) have played at 
least an equally significant role in the salmonid declines up and down 
the West Coast. And because the very nature of this rule-making--the 
codification of take prohibitions and the limits placed on them--cannot 
apply to natural processes (by definition, the ocean cannot not 
``take'' species), the rules necessarily address human activities.
    Comment 289: Many commenters stated that the language of the rules 
needed to be more clear in a number of respects, particularly with 
regard to the terms found in the take guidance sections. Others felt 
there was too much detail in the rules and that NMFS should simply 
stick to principles and not offer too much in the way of specific 
guidance.
    Response: In publishing the proposed rules, NMFS tried to strike a 
balance between these opposing views. The point was to avoid making the 
rules overly prescriptive--and thus allow local initiative to play a 
strong role--yet still give valuable guidance on how to proceed with 
numerous human activities in the areas inhabited by threatened 
salmonids. To continue in this spirit, NMFS has gone to some lengths to 
clarify the guidance language and it may be found in this final rule.
    Comment 290: Several commenters requested clarification on NMFS' 
use of the term ``stock,'' the definition of population segments, and 
the implications of these concepts for species conservation.
    Response: The use of the term ``stock,'' following Ricker's 
definition, is critical because it defines the appropriate management 
units for conserving the species. According to Ricker, stocks are made 
up of numerous populations which become uniquely adapted to specific 
environmental conditions, leading to local variations in morphology, 
behavior, and life history traits. As amended in 1978, the ESA allows 
the listing of ``distinct population segments'' where groups of 
populations are assembled for conservation management purposes. NMFS' 
policy states that a salmon population is considered ``distinct'' for 
purposes of the ESA if it represents an ESU of the biological species, 
where an ESU represents an important component of the evolutionary 
legacy of the species. Thus the health of an ESU depends upon the 
health of its component parts. This argues for developing protective 
regulations across an ESU's entire range, even though some local 
populations may be thriving. The ESA 4(d) protective approach offers 
the flexibility to develop local protection programs which are 
cognizant of the species condition in the area.
    Comment 291: A large number of commenters voiced general and 
specific support for and opposition to various rules.
    Response: The proposed ESA 4(d) rules generated an amount of 
substantive public comment unprecedented since NMFS first began rule-
making activities for salmonids on the West Coast 10 years ago. Many 
thousands of individual comments contained within the letters from well 
over one thousand respondents reflected the broadest possible spectrum 
of feeling--from full support to total opposition to the proposed 
rules. Though the very nature of the questions surrounding salmonid 
management in the Northwest and California precludes any possibility of 
pleasing everyone, NMFS has striven to use this public comment period--
as well as every other input avenue at our disposal--to adapt the rules 
in a manner that more fully reflects the basic objectives to encourage 
state and local conservation efforts and to clear up the substantial 
confusions associated with certain elements of the earlier proposed 
rule.
    Comment 292: Several commenters stated that NMFS should consult 
with tribal governments regarding actions by non-tribal entities, 
particularly those actions and limits contained in the salmon and 
steelhead ESA 4(d) rules.
    Response: Throughout the development of the tribal and salmon/
steelhead 4(d) rules NMFS has made a concerted effort to notify and 
confer with tribal representatives and technical staff throughout the 
Pacific Northwest and California. Contact regarding these rules goes 
back to before December of 1998, when draft rules were submitted for 
review by the affected tribes well in advance of the proposed rules. 
During that review, NMFS coordinated and attended a number of meetings 
and working sessions with tribal governments and representatives 
(including staff from inter-tribal fisheries commissions) to discuss 
particular aspects of the ESA 4(d) rules. These meetings allowed NMFS 
to develop proposed ESA 4(d) rules that the agency believes address a 
wide range of issues highlighted by the tribes. Similar efforts were 
made to discuss the proposed 4(d) rules with key staff and tribal 
council members after the rules were published.
    Clearly, NMFS recognizes the need to work closely with the tribes 
of the region to develop and improve upon information exchange and 
consultation opportunities relating to salmon and steelhead 
conservation. Since beginning work on these 4(d) rules NMFS has added a 
tribal liaison position to its staff to focus on improving 
communications with the tribes and developing consultation procedures 
that will meet both NMFS and tribal needs. It is the agency's intent to 
continue working with tribal governments to develop regularly scheduled 
meetings between NMFS and tribal technical staff and policy makers to 
both provide more timely notice regarding NMFS activities and discuss 
how consultation might occur for future fisheries issues and ESA 
rulemaking. There remains the opportunity for the tribes and the agency 
to hold future discussions on applying the ESA 4(d) rules. Such future 
discussions can include identifying cultural and economic issues 
requiring the agency's attention and ideas about how such analyses 
should be conducted. In response to tribal requests, NMFS will 
correspond with each commenting tribal government, clarify how its 
comments were addressed, and identify the need for additional meetings 
to discuss potential rule amendments and modifications.
    Comment 293: Many people stated that any activities conducted in 
accordance with the Oregon Plan for Salmon and Watersheds should 
receive a specific limitation on the take prohibitions.
    Response: NMFS has carefully reviewed the various versions of the 
Oregon Plan since its genesis over 4 years ago and remains a strong 
supporter of it as a hugely ambitious and comprehensive effort. While 
many portions of the Plan may sufficiently protect the salmon resource 
as they now stand, other components need further work and refinements, 
as is widely understood and altogether understandable. Therefore, 
because certain parts of the Plan do not offer the salmon enough 
protection, NMFS cannot adopt it wholesale as a limitation on the take 
prohibitions.
    Comment 294: Several commenters requested that NMFS clarify how it 
will

[[Page 42468]]

add new limits and adjust programs that are already within a limit.
    Response: NMFS will continue to work with local jurisdictions and 
other entities to develop and adopt new ESA 4(d) rule limits. In 
general, local entities will develop a proposed limit based on the 
guidance set forth in the rule and will bring it to NMFS for technical 
assistance and to undergo a negotiation and approval process. The 
approach is a flexible one and there are different time frames and 
administrative procedures for each limit--depending on the type being 
proposed (see the regulatory text of this final rule). Existing limits 
will be reviewed and evaluated according to the schedule established at 
the time the limit is finalized.
    Comment 295: One commenter requested that NMFS identify in the 
final rules the ``replicable'' elements of any of the agency-specific 
programs.
    Response: There are two types of limits available through the ESA 
4(d) rule: (1) Stand alone programs, and (2) a set of criteria that 
will form the basis for future programs that NMFS will evaluate for 
further limits on the take prohibition. The first category of limits is 
made up of programs that can be adopted or adapted as ``replicable'' 
elements for other jurisdictions or entities. The criteria in the 
latter type of limit also serve as replicable elements that other 
programs can adapt to meet.
    Comment 296: A number of respondents expressed a general concern 
that the ESA 4(d) rules were too coercive. They stated that the rules 
would engender third-party lawsuits or simply fragment and undermine 
local efforts rather than bolster them. A recurring theme was that NMFS 
should be more flexible in its approach than the rules would seem to 
indicate.
    Response: One of the primary reasons NMFS has taken this ground-
breaking approach in publishing ESA 4(d) rules is to allow for a 
maximum of local input and Federal flexibility. Rather than simply 
impose blanket take prohibitions of the sort normally promulgated under 
a final rule listing a species, NMFS has attempted to create a 
regulatory environment within which local initiatives and programs have 
sufficient leeway to remain focused on their own goals while 
simultaneously working toward the ultimate end of preserving salmonid 
stocks--both now and in the future. No agency can alter the simple fact 
that certain activities that harm listed salmonids must be regulated. 
Nonetheless, as the rules themselves demonstrate, NMFS is committed to 
an approach that focuses more on aiding local efforts that conserve 
listed salmon and steelhead.
    Comment 297: Some commenters stated that local entities should have 
little or no authority to carry out the measures because local 
initiatives have a very poor track record with respect to protecting 
salmonids.
    Response: The task of protecting salmonids in the Pacific Northwest 
and California is perhaps the most complicated and far-reaching attempt 
to restore a species ever undertaken. In practical terms, the Federal 
government alone, using only Federal authorities and dollars, cannot 
hope to accomplish this ambitious task of salmon recovery without the 
additional active efforts of state and local authorities and the 
private sector. A wide mosaic of activities affect salmon habitat. 
Those activities fall under the responsibility of a range of Federal, 
state and local authorities. The practical ability to make changes in 
those activities will depend in part upon the willingness and ability 
of those separate authorities to encourage change. Therefore, NMFS is 
attempting, to the greatest extent practicable, to build opportunities 
for state and local initiatives in the implementation of the ESA 
program. This strategy has already proven successful in a few areas 
where watershed councils and other local bodies have made great strides 
in salmon conservation through habitat rehabilitation, community 
awareness seminars, and other projects. NMFS anticipates and welcomes 
further expansions of these efforts over time.
    Comment 298: Many commenters stated that individual landowners 
should receive assurances in the rules that if they cooperated and 
followed the measures outlined, they would be free from any further 
restrictions under the ESA.
    Response: As a matter of law, listed species may not be taken 
without legal authorization. Therefore, it is incumbent upon every 
individual and organization to be vigilant in terms of minimizing the 
impacts their activities have on listed salmonids. The 4(d) rules 
establish take prohibitions; that is their purpose. Secondarily they 
are an attempt to allow landowners and every other interested party a 
path by which they can have some assurance that their activities are in 
concert with the letter and intent of the ESA. It should be noted that 
no one will be forced to seek a 4(d) limitation, and no one need 
necessarily follow the limitations laid out in the rule. They are 
optional, flexible methods for ensuring that individual entities adhere 
to the mandated take prohibitions. The other routes for complying with 
the ESA are still open; for example, landowners may still seek ESA 
section 10 incidental take permits through the process of developing 
habitat conservation plans--a process that offers them a good deal of 
assurance that their activities will continue to be in compliance with 
the ESA. Any program or activity that adheres to the criteria found in 
the limits described in these rules will receive a similar sort of 
assurance. Further, it is very likely that other programs will come 
forth in the future that similarly protect the salmon and, as a 
consequence, will receive their own limitations on the take 
prohibitions. Nonetheless, it must be stressed that the primary purpose 
of these rules is to fulfill the mandate of the ESA in issuing 
regulations deemed necessary and advisable to provide for the 
conservation of threatened species.
    Comment 299: A number of commenters asserted that the original 
listings were in error--most the reasons given fell into two 
categories: either (a) the science was inaccurate, or (b) the concept 
of listing ESUs is faulty.
    Response: Section 4(b)(1)(A) of the ESA requires that NMFS make its 
listing determinations solely on the basis of the best available 
scientific and commercial data after reviewing the status of the 
species and taking into account any efforts being made to protect such 
species. NMFS believes that information contained in the agency's 
status review (Myers et al., 1998), together with information cited in 
the final rule (NMFS, 1998a), represent the best scientific information 
presently available for the ESUs addressed in this final rule. NMFS 
made every effort to conduct an exhaustive review of all available 
information and solicited information and opinion from all interested 
parties in making the listing decisions. If in the future new data 
become available to change these conclusions, NMFS will act 
accordingly.
    As to the validity of listing ESUs in the first place, general 
issues relating to ESUs and the ESA have been discussed extensively in 
past Federal Register documents--most recently in the final rule 
listing 4 ESUs of chinook salmon (64 FR 14308, September 9, 1999) and 
they need not be reiterated at length here. Nonetheless, the utility of 
the ESU concept is laid out in a 1991 document in which NMFS describes 
how it will apply the ESA definition of ``species'' to Pacific salmon 
(56 FR 58612, November 20, 1991). Guidance on applying this policy is 
contained in a NOAA Technical Memorandum entitled ``Definition of 
`Species' Under the Endangered Species Act: Application to Pacific 
Salmon'' (Waples, 1991) and in

[[Page 42469]]

a recent scientific paper by Waples (1995). It should also be pointed 
out that the National Research Council generally endorses the concept 
(NRC, 1995).
    Comment 300: Several commenters were concerned about the scientific 
standards used to justify the inclusion of the 13 limits and to judge 
future limits, and suggested the generation of uniform standards.
    Response: NMFS evaluated the current limits based on best available 
science and the concepts of VSP and PFC, and will evaluate any future 
limit using the same and other, more site specific guidelines. 
Recognizing the variable nature of the geologic, hydrologic and aquatic 
ecosystems across all ESUs, and the consequent variability in 
strategies for salmon recovery, NMFS proposes an approach that allows 
local innovation through the development of local and regional programs 
that are protective of salmon and steelhead. These programs are 
monitored and evaluated for their effectiveness in meeting the 
conservation goal of the survival and recovery of the species. While 
NMFS offers general guidelines, the 13 limitations and new programs 
offer additional specificity and strategies for meeting the 
conservation goal.
    Comment 301: Some commenters expressed the opinion that the rules 
are too costly and will involve too much red tape.
    Response: Saving a species is neither an easy task nor a cheap one. 
Nonetheless, NMFS is committed to finding the most efficient and cost-
effective way of preserving salmon and steelhead on the West Coast. To 
assist us in this, we have prepared initial regulatory flexibility 
analyses of the effects the rules are likely to have on small 
businesses, non-profit organizations, local governments, and other 
small entities. The purpose of these analyses is to help the agency 
consider all reasonable regulatory alternatives that would minimize the 
rules' economic impacts on affected small entities. It is thus our 
intent to make full use of these analyses and keep economic impacts to 
a minimum.
    In addition, because this is a new approach to promulgating 4(d) 
rules under the ESA, we are aware that the process may impose some 
unforseen burdens in terms of time investment and paperwork for all 
involved parties--including NMFS. To counter this, we will use the 
principles of adaptive management to streamline the process wherever 
and whenever possible.
    Comment 302: A number of people stated that more time was needed 
for completing and commenting on the rules.
    Response: NMFS has been working with individual programs, tribes, 
and local governments all over the Northwest for well over 2 years to 
complete the 4(d) rule proposals. Twenty-five public meetings were held 
in order to get input. The statutory time line for commenting on the 
rules was doubled so that every interested person in the region would 
have a reasonable amount of time in which to formulate and submit their 
comments.
    It is important to note, however, that one of the main premises of 
promulgating these rules is to build a maximally adaptive process for 
managing salmon on the West Coast. Therefore, it is expected that these 
rules will continue to change in response to incoming monitoring data, 
further public input, other proposed limitations on the take 
prohibitions, and the developing recovery plans for the listed species.
    Comment 303: One commenter requested that the reference to a public 
comment period of 30 days for various plans and programs be included in 
every section of the rule in order to provide consistency in process 
between limits.
    Response: All programs that are accepted as ESA 4(d) limits will be 
published in the Federal Register and the usual comment period is 30 
days. NMFS makes clear in the regulatory text of this final rule where 
and when the 30-day comment period applies.
    Comment 304: Many commenters agreed with various portions of the 
rules, but stated that it is imperative that they be enforced and that 
monitoring and oversight need to be accounted for in every limit. 
Further, monitoring must be built into the system in a way that allows 
the limits to be altered when evolving science shows it necessary.
    Response: Change in response to new data is the very heart of the 
adaptive management process. NMFS is committed to continually bringing 
the best and latest information to bear on the question of how to best 
preserve declining salmon stocks--monitoring is a critical path for 
developing that information. Most of the programs given limitations in 
the 4(d) rules feature monitoring as an integral part. The language in 
the final rules has been changed slightly to further stress the 
importance of monitoring and to make clear that it will be used to 
alter the programs where necessary.
    Comment 305: Some commenters suggested that the results from 
monitoring data for programs implemented under different limits should 
be available for public comment. Another commenter urged that the 
process for reviewing the effectiveness of the fish protection measures 
include tribal managers, independent scientists, and the public.
    Response: The results of monitoring data from programs within ESA 
4(d) limits will be available for public review at the appropriate NMFS 
office. At this time, however, NMFS does not have a mechanism to seek 
formal public comment on the data. NMFS will continue to seek 
monitoring data, input, and other relevant information from co-managers 
and others as the programs are reviewed, evaluated, and adjusted.
    Comment 306: Some commenters wanted to know why NMFS believes it is 
necessary to have such a detailed review and reporting process for the 
limits when FWS does not require anything like it for wildlife.
    Response: As stated previously, this is a ground-breaking approach 
to managing threatened species. Its intent is to allow a maximum of 
local input while simultaneously offering the largest possible degree 
of protection for the species. It has never been tried before and, as a 
result, it is imperative that we keep a very close eye on its progress. 
Aside from the need for monitoring to allow the process to adapt, these 
rules will eventually become part of the larger recovery planning 
process. By closely examining the success of the proposed measures, we 
can get a much better idea of what it will take to fulfill the ultimate 
portion of our mandate: to recover the species.
    Comment 307: One commenter recommended that NMFS work with FWS to 
make sure that Federal activities receive take prohibition limits under 
our ESA 4(d) rules similar to the ones being proposed for Bull trout. 
In addition, another commenter urged close coordination with FWS to 
prevent different interpretations of take and different limits being 
offered.
    Response: NMFS always seeks to cooperate with FWS, and procedures 
have been established for joint consultation on ESA rulemaking and for 
reviewing Federal programs through section 7 of the ESA. NMFS 
anticipates that this cooperation will be strengthened as the 4(d) rule 
is implemented. NMFS will further work with FWS to ensure that the 
existing bull trout take prohibitions might be modified to reflect 
appropriate state or local efforts in parallel to this final rule.
    Comment 308: Some tribal commenters were concerned that the 4(d) 
rules could serve as a ``back door'' to unfairly allocate the 
conservation burden on tribal governments. The

[[Page 42470]]

concern is that if the program is not scientifically rigorous enough, 
the Agency would be forced to turn to the tribes for additional 
conservation burden (i.e., limit fishing or development activities).
    Response: NMFS intends to review all new proposed limitations 
rigorously for their contribution to the conservation of the species 
using existing criteria and additional site-specific tools. In 
addition, before any program is accepted, it will be published in the 
Federal Register for public review and comment. NMFS expects this 
process to be rigorous and open enough to permit the development of 
effective protective regulations and programs.
    Comment 309: Some commenters stated that NMFS should delineate 
specific population parameters for several named populations (e.g., the 
Yuba River) so it can be determined if they may be excepted from having 
any take prohibitions placed on them. Some commenters wanted the rules 
to be eased when a viable population size is reached in order to give 
landowners an incentive to continue using protective measures.
    Response: The limits on take prohibitions are given for specific 
activities, not for populations. If an activity helps conserve 
salmonids or if it adequately limits impacts on salmonids, it may 
receive a limitation on the take prohibitions. In the spirit of 
adaptive management, there may well come a point in the future where a 
population (and its ESU) has rebounded to the point where it is healthy 
enough, viable enough, that alternative management actions would be 
allowable. Of necessity, this would first take place in a highly 
controlled experimental environment that would allow researchers to 
determine the impacts of any new management scheme. Until that time, 
however, it is necessary to protect the salmonids while we get a better 
measure of population viability and place it firmly in the context of 
managing West Coast salmon. NMFS scientists are working diligently to 
accomplish that goal and will continue to use their results to adapt 
the agency's ongoing salmon management programs.
    Comment 310: Some commenters stated that the overall regulatory 
scheme was too fragmented. They stated the need for a clear pathway for 
local and state governments to synthesize their programs with the ESA 
4(d) approach. They also stated there should be a better recognition of 
the limitations local governments face in terms of staffing, funding, 
and ability to monitor.
    Response: One of this final rule's purposes is to develop a process 
that is flexible, adaptable, and receptive to greater participation 
from local entities. In order to accomplish this, the regulatory scheme 
must remain somewhat open as well. Nonetheless, though NMFS desires to 
remain open to new approaches, we have also included a good deal of 
guidance as to what we believe any program should contain in terms of 
protective measures for salmon. Also, we will continue to do what we 
can to assist local entities, watershed councils, and others with 
instruction, technical assistance, and, whenever possible, funding.
    Comment 311: Some commenters asserted that NMFS cannot anticipate 
how many states or local governments will be affected by the rule or 
how many entities or jurisdictions will apply for coverage under the 
new ESA 4(d) limits. Others commented that NMFS will be inundated and 
overwhelmed with requests for programs to come under a 4(d) limit and 
suggested simplified procedures streamlining the review and approval of 
future potential take limitations.
    Response: NMFS is anticipating strong interest from state and local 
governments in the ESA 4(d) limits. We are encouraging jurisdictions to 
work together in developing plans that cover wide geographic scales and 
multiple activities--thus reducing the number of individual programs 
that need to be reviewed. Also, we anticipated that promulgating these 
rules would increase workloads and, as a result, we are evaluating our 
resource needs and are fully committed to meeting future program 
demands.
    Comment 312: Several commenters suggested that NMFS provides no 
scientific basis to categorically apply the take prohibition to an 
entire category of activities such as agriculture, and that the agency 
provides no technical guidance on take avoidance.
    Response: The take prohibitions do not apply to categories of 
activities, but to any activities that take listed species. The section 
on ``Take Guidance'' provides further information on those activities 
that have a high risk of take. NMFS stands ready to work with 
interested parties to provide further guidance, including guidance that 
could ultimately be included as a 4(d) limitation.
    Comment 313: Several commenters were confused by multiple Federal 
Register documents and didn't realize that there were several separate 
ESA 4(d) rules.
    Response: For the final rules, we have combined the chinook and the 
steelhead rules to help reduce some of the confusion. We hope this, 
along with several changes in the rule' language will make things a bit 
more clear.

Changes to the Proposed ESA 4(d) Rules

    The proposed rules included a lengthy preamble where NMFS provided 
technical guidance, description of the scientific principles upon which 
the limits on the take prohibition were based, and a description of the 
background and content of the 13 limits. The proposed regulatory 
language was included in sections 223.203 and 223.208. Modifications to 
the proposed preamble sections based on written comments will be 
reflected in ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 2000), while 
the actual changes to the regulatory language are described as follows.
    An important change to highlight is that the final 4(d) rules for 
the different ESUs have different effective dates. In the final 
steelhead and salmon 4(d) rule the effective date for the steelhead 
ESUs (Sec. 223.102(a)(5) through (a)(9) and (a)(14) and (a)(15)) is 
September 8, 2000. The effective date for the salmon ESUs 
(Sec. 223.102(a)(10), (a)(12), (a)(13) and (a)(16) through (a)(19)) is 
January 8, 2001. NMFS recognizes that the final 4(d) rules are complex 
and that even the proposed rules created a certain amount of confusion 
among those who commented on them. The court-ordered settlement date 
requires NMFS to adopt protective regulations for the steelhead ESUs by 
June 19, 2000. NMFS, however, is not under a similar court-mandated 
time line for the salmon ESUs. Therefore, because of the rule's length 
and complexity, the diverse range of human activities that will 
potentially be affected, and the continued need to educate all sectors 
of the public, the effective date for the salmon ESUs will be six 
months after publication of this Federal Register document. This 6-
month period will allow NMFS to educate and work with all 
jurisdictions, entities, and individuals affected by the rule. It will 
also provide additional time for them to review their activities and 
programs and adjust them (if needed) to avoid taking threatened 
species.
    The general format of the proposed regulations included the 
prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538) relating to 
endangered species being applied to the 14 listed threatened salmonid 
ESUs, except as provided in the 13 limits on application of the section 
9(a)(1)(B) and 9(a)(1)(C) take prohibitions that are included in the 
regulation. The proposed rules listed the following 13 limit 
categories: (1) Activities conducted in accord with

[[Page 42471]]

ESA incidental take authorization; (2) ongoing scientific research 
activities, for a period of 6 months from the publication of the final 
rule; (3) emergency actions related to injured, stranded, or dead 
salmonids; (4) fishery management activities; (5) hatchery and genetic 
management programs; (6) activities in compliance with joint tribal/
state plans developed within U.S. v. Washington or U.S. v. Oregon; (7) 
scientific research activities permitted or conducted by the states; 
(8) state, local, and private habitat restoration activities; (9) 
properly screened water diversion devices; (10) routine road 
maintenance activities in Oregon; (11) certain park maintenance 
activities in the City of Portland, Oregon; (12) certain municipal, 
residential, commercial and industrial (MRCI) development and 
redevelopment activities; and (13) forest management activities within 
the state of Washington.
    NMFS is modifying the final ESA 4(d) protective regulations for 
these 14 ESUs based on comments and new information received on the 
proposed rules. The following section summarizes how the regulatory 
language for each limit and technical issues did or did not change. The 
actual regulatory descriptions of each limit and technical information 
can be found in the regulatory text at the end of this Federal Register 
document.

Viable Salmonid Populations Paper

    The proposed rules solicited public comments on the draft NMFS VSP 
paper. The VSP paper is not a separate limit, but provides a technical 
framework for the fishery management and hatchery management limits. 
Based on public comments regarding the draft VSP paper, changes were 
made in the regulatory language for the fishery and hatchery management 
limits to clarify how the VSP data requirements will be addressed. 
Additional compliance guidance is available in``A Citizen's Guide to 
the 4(d) Rule'' (NMFS, 2000).

Properly Functioning Conditions

    For the reasons identified in the Comment and Responses section, 
language was added to the limits addressing habitat issues, i.e., 
habitat restoration, pest management and routine road maintenance, in 
order to define properly functioning condition and how NMFS will 
evaluate the limits with regard to meeting this biological standard.

Legal and Affirmative Defense

    For the reasons identified in the Comment and Responses section, 
regulation language was modified to: (1) add new language to make 
explicit that it would be the defendant's obligation to plead and prove 
application of and compliance with a limit as an affirmative defense; 
(2) clarify the question about whether the rule should be non-
severable, by making it explicit that NMFS intends the provisions of 
this rule to be severable.

Limit for Activities Conducted in Accord with ESA Incidental Take 
Authorization

    No changes were made to the regulations pertaining to this limit. 
Additional compliance guidance is available from NMFS in ``A Citizen's 
Guide to the 4(d) Rule'' (NMFS, 2000).

Limit for Ongoing Scientific Research Activities

    No changes were made to the regulations pertaining to this limit. 
Additional compliance guidance is available from NMFS in ``A Citizen's 
Guide to the 4(d) Rule'' (NMFS, 2000).

Limit for Rescue and Salvage Actions

    No changes were made to the regulations pertaining to this limit. 
Additional compliance guidance is available from NMFS in ``A Citizen's 
Guide to the 4(d) Rule'' (NMFS, 2000).

Limit for Fishery Management Activities

    For the reasons identified in the comment and response section, 
this limit was modified to: (1) change the use of a MOA between states 
and NMFS to a letter of concurrence from NMFS; (2) clarify the use of 
viable and critical salmonid population thresholds consistent with the 
VSP paper; (3) clarify the timing of reports describing take of listed 
salmonids; and (4) explain that the prohibitions on take of threatened 
steelhead in recreational fisheries managed solely by the states of 
Oregon, Washington, Idaho and California will go into effect January 8, 
2001.

Limit for HGMPs

    For the reasons identified in the comment and response section, 
this limit was modified to change the use of a MOA between states and 
NMFS to a letter of concurrence from NMFS.

Limit for Joint Tribal and State Plans

    No changes were made to the regulations pertaining to this limit. 
Additional compliance guidance is available from NMFS in ``A Citizen's 
Guide to the 4(d) Rule'' (NMFS, 2000).

Limit for Scientific Research Activities Permitted or Conducted by 
the States

    NMFS has revised the limit to reflect commenter concerns about the 
feasibility of adequate oversight by state fishery agencies. Additional 
compliance guidance is available from NMFS in ``A Citizen's Guide to 
the 4(d) Rule'' (NMFS, 2000).

Limit for Habitat Restoration

    For the reasons identified in the Comment and Responses section, 
this limit was modified to: (1) clarify that take prohibitions do not 
apply to habitat restoration activities provided the activity is part 
of a WCP that meets criteria listed in the regulation; (2) change the 
time frame to complete a watershed conservation plan from 2 years to an 
undetermined time, so that the limit is available whenever the criteria 
described in the regulation are met; (3) delete the list of six 
categories of habitat restoration activities that would not have the 
ESA section 9 take prohibitions applied to them for 2 years; (4) 
clarify and revise the criteria NMFS will use to evaluate a state's 
watershed conservation plan guidelines; and (5) clarify that NMFS will 
not approve individual WCPs; instead, NMFS will approve the WCP 
guidelines with each state and periodically review the state watershed 
planning programs for consistency with the guidelines. Additional 
compliance guidance is available from NMFS in ``A Citizen's Guide to 
the 4(d) Rule'' (NMFS, 2000).

Limit for Water Diversion Screening

    For the reasons identified in the comment and response section, 
this limit was modified to: (1) allow NMFS-authorized state agency 
engineers (``authorized officers'') to review and recommend 
certification of screen designs to NMFS rather than NMFS' engineers 
solely having this responsibility; and (2) allow NMFS, on a case by 
case basis, to grant this limit to water diversion projects where NMFS 
has approved a design construction plan and schedule, including interim 
operation measures to reduce the likelihood of take. NMFS may also 
require a commitment of compensatory mitigation if implementation of a 
plan and schedule is terminated prior to completion.

Limit for Routine Road Maintenance Activities

    For the reasons identified in the comment and response section, 
this limit was modified to: (1) allow this limit to be available to any 
state, county, city, or port once they have demonstrated in writing 
that their routine road maintenance activities are equivalent to those 
in the ODOT Guide which adequately protect threatened salmonid species; 
or by employees or

[[Page 42472]]

agents of a state, county, city or port that complies with a routine 
road maintenance program that meets proper functioning habitat 
conditions; (2) add language referring to state, city, county, and 
ports; (3) change the time frame for ODOT or another jurisdiction to 
respond to new information in the shortest amount of time feasible, but 
not longer than one year; (4) clarify that prior to approving any 
state, city, county, or port program as within this limit, or approving 
any substantive change in a program within this limit, NMFS will 
publish notification in the Federal Register; (5) clarify that any 
jurisdiction should first commit in writing to apply the management 
practices in the ODOT Guide, rather than the proposed language, which 
first required the jurisdiction to enter into a memorandum of agreement 
with NMFS; and (6) add new language regarding properly functioning 
condition. Additional compliance guidance is available from NMFS in ``A 
Citizen's Guide to the 4(d) Rule'' (NMFS, 2000).

Limit for Certain Integrated Pesticide Management Activities

    For the reasons identified in the Comment and Responses section, 
this limit was modified to: (1) add new language regarding properly 
functioning conditions; and (2) clarify language regarding how NMFS 
will address future program changes and provide public notice that the 
limit is withdrawn. Additional compliance guidance is available from 
NMFS in ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 2000).

Limit for Municipal, Residential, Commercial and Industrial (MRCI) 
Development and Redevelopment Activities

    For the reasons identified in the Comment and Responses section, 
this limit was modified to: (1) clarify that this limit applies to MRCI 
development and redevelopment undertaken by cities, counties, and 
regional governmental entities; ( 2) expand and clarify the content of 
the 12 evaluation considerations NMFS will use to review MRCI 
development ordinances and plans; (3) add new language to emphasize the 
properly functioning habitat conditions NMFS considers adequate to 
conserve listed salmonids; (4) clarify that NMFS notes that not all 12 
considerations described in the regulation will necessarily be relevant 
to all ordinances and plans submitted for review and approval; and (5) 
include language which clarifies the process NMFS will use to provide 
notice of availability of ordinances and plans for public review, and 
NMFS' process to amend or withdraw limits.

Limit for Forest Management Activities in the State of Washington

    For the reasons identified in the Comment and Responses section, 
this limit was modified to add new language stating that actions taken 
under alternative plans are included in this limit provided that they 
meet the requirements stated in the regulation and are submitted and 
approved by the authorized Washington state agency.

Take Guidance

    These threatened species are in danger of becoming extinct in the 
foreseeable future. They have been depleted by over-fishing, past and 
ongoing freshwater and estuarine habitat destruction, hydropower 
development, hatchery practices, and other causes. It is, therefore, 
necessary and advisable to put into place ESA section 9(a)(1) 
prohibitions to aid in their conservation. Section 9(a)(1) prohibitions 
make it illegal for any person subject to the United States' 
jurisdiction to ``take'' these species without written authorization 
(``take'' is defined to occur when a person engages in activities that 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect a species or attempt to do any of these). Impacts on a 
protected species' habitat may harm members of that species and, 
therefore, constitute a ``take'' under the ESA. Such an act may include 
significant habitat modification or degradation that actually kills or 
injures listed fish by significantly impairing essential behavioral 
patterns including breeding, spawning, rearing, migrating, feeding, or 
sheltering.
    On July 1, 1994 (59 FR 34272), NMFS and FWS published a policy 
committing both agencies to identify, to the extent possible, those 
activities that would or would not violate section 9 of the ESA. The 
intent of this policy is to increase public awareness about ESA 
compliance and focus public attention on those actions needed to 
protect species.
    Based on available information, NMFS believes the categories of 
activities listed here are those activities which as a general rule may 
be most likely to result in injury or harm to listed salmonids. NMFS 
wishes to emphasize at the outset that whether injury or harm is 
resulting from a particular activity is entirely dependent upon the 
facts and circumstances of each case. The mere fact that an activity 
may fall within one of these categories does not at all mean that that 
specific activity is causing harm or injury. These types of activities 
are, however, those that may be most likely to cause harm and thus 
violate this rule. NMFS' ESA enforcement will therefore focus on these 
categories of activities.
    Activities listed in A thru J below are as cited in NMFS' harm rule 
64 FR 215 (November 8, 1999).
    A. Constructing or maintaining barriers that eliminate or impede a 
listed species' access to habitat or ability to migrate.
    B. Discharging pollutants, such as oil, toxic chemicals, 
radioactivity, carcinogens, mutagens, teratogens or organic nutrient-
laden water including sewage water into a listed species' habitat.
    C. Removing, poisoning, or contaminating plants, fish, wildlife, or 
other biota required by the listed species for feeding, sheltering, or 
other essential behavioral patterns.
    D. Removing or altering rocks, soil, gravel, vegetation or other 
physical structures that are essential to the integrity and function of 
a listed species' habitat.
    E. Removing water or otherwise altering streamflow when it 
significantly impairs spawning, migration, feeding or other essential 
behavioral patterns.
    F. Releasing non-indigenous or artificially propagated species into 
a listed species' habitat or where they may access the habitat of 
listed species.
    G. Constructing or operating dams or water diversion structures 
with inadequate fish screens or fish passage facilities in a listed 
species' habitat.
    H. Constructing, maintaining, or using inadequate bridges, roads, 
or trails on stream banks or unstable hill slopes adjacent to or above 
a listed species' habitat.
    I. Conducting timber harvest, grazing, mining, earth-moving, or 
other operations which result in substantially increased sediment input 
into streams.
    J. Conducting land-use activities in riparian areas and areas 
susceptible to mass wasting and surface erosion, which may disturb soil 
and increase sediment delivered to streams, such as logging, grazing, 
farming, and road construction.
    K. Illegal fishing. Harvest in violation of fishing regulations 
will be a top enforcement concern.
    L. Various streambed disturbances may trample eggs or trap adult 
fish preparing to spawn. The disturbance could be mechanical disruption 
caused by constructing push-up dams, removing gravel, mining, or other 
work in a stream channel. It may also take the form of egg trampling or 
smothering by livestock in the streambed or by vehicles or equipment 
being driven

[[Page 42473]]

across or down the streambed (as well as any similar physical 
disruptions).
    M. Interstate and foreign commerce dealing in listed salmonids and 
importing or exporting listed salmonids may harm the fish unless it can 
be shown--through an ESA permit--that they were harvested in a manner 
that complies with ESA requirements.
    N. Altering lands or waters in a manner that promotes unusual 
concentrations of predators.
    O. Shoreline and riparian disturbances (whether in the riverine, 
estuarine, marine, or floodplain environment) may retard or prevent the 
development of certain habitat characteristics upon which the fish 
depend (e.g., removing riparian trees reduces vital shade and cover, 
floodplain gravel mining, development, and armoring shorelines reduces 
the input of critical spawning substrates, and bulkhead construction 
can eliminate shallow water rearing areas).
    P. Filling or isolating side channels, ponds, and intermittent 
waters (e.g., installing tide gates and impassable culverts) can 
destroy habitats that the fish depend upon for refuge areas during high 
flows.
    The list provides examples of the types of activities that could 
have a high risk of resulting in take but it is by no means exhaustive. 
It is intended to help people avoid violating the ESA and to encourage 
efforts to save the species. Determination of whether take has actually 
occurred depends on the circumstances of a particular case.
    Many activities that may kill or injure salmonids are regulated by 
state and/or Federal processes, such as fill and removal authorities, 
NPDES or other water quality permitting, pesticide use, and the like. 
For those types of activities, NMFS would not intend to concentrate 
enforcement efforts on those who operate in conformity with current 
permits. Rather, if the regulatory program does not provide adequate 
salmonid protection, NMFS intends to work with the responsible agency 
to make necessary changes in the program.
    For instance, concentrations of pesticides may affect salmonid 
behavior and reproductive success. Current EPA label requirements were 
developed in the absence of information about some of these subtle but 
real impacts on aquatic species such as salmonids. Where new 
information indicates that label requirements are not adequately 
protective of salmonids, NMFS will work with EPA through the section 7 
consultation process to develop more protective use restrictions, and 
thereby provide the best possible guidance to all users. Similarly, 
where water quality standards or state authorizations lead to pollution 
loads that may cause take, NMFS intends to work with the state water 
quality agencies and EPA to bring those standards or permitting 
programs to a point that does protect salmonids.
    Persons or entities who conclude that their activity is likely to 
injure or kill protected fish are encouraged to immediately adjust that 
activity to avoid take (or adequately limit any impacts on the species) 
and seek NMFS' authorization for incidental take under (a) an ESA 
section 10 incidental take permit; (b) an ESA section 7 consultation; 
or (c) a limit on the take prohibitions provided in this rule. The 
public is encouraged to contact NMFS (see FOR FURTHER INFORMATION 
CONTACT) for assistance in determining whether circumstances at a 
particular location (involving these activities or any others) 
constitute a violation of this rule.
    State and local efforts like the Oregon Plan for Salmon and 
Watersheds, the State of Washington's Extinction is Not an Option Plan, 
Metro's Functional Plan, the Puget Sound Tri-County Initiative and 
Lower Columbia Fish Recovery Board in Washington state, the Eugene, 
Oregon-area Metro ESA Coordinating Team, and the Willamette Restoration 
Initiative (WRI) have stepped forward and assumed leadership roles in 
saving these species. NMFS reiterates its support for these efforts and 
encourages them to resolve critical uncertainties and further develop 
their programs so they can take the place of blanket ESA take 
prohibitions.
    Impacts on listed salmonids resulting from actions in compliance 
with a permit issued by NMFS pursuant to section 10 of the ESA are not 
violations of this rule. Section 10 permits may be issued for research 
activities, enhancement of a species' survival, or to authorize 
incidental take occurring in the course of an otherwise lawful 
activity. NMFS consults on a broad range of activities conducted, 
funded, or authorized by Federal agencies. These include fisheries 
harvest, hatchery operations, silviculture activities, grazing, mining, 
road construction, dam construction and operation, discharge of fill 
material, and stream channelization and diversion. Federally-funded or 
approved activities that affect listed salmonids and for which ESA 
section 7 consultations have been completed and any take authorized, 
will not constitute violations of this rule--provided the activities 
are conducted in accord with all reasonable and prudent measures, 
terms, and conditions stated in the consultation and incidental take 
permit.

References

    A list of references cited in this final rule is available upon 
request (see ADDRESSES).

Classification

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) was 
designed to ensure that agencies carefully assess whether aspects of a 
proposed regulatory scheme (record keeping, safety requirements, etc.) 
can be tailored to be less burdensome for small businesses while still 
achieving the agency's statutory responsibilities. NMFS prepared an 
initial regulatory flexibility analysis (IRFA) which was made available 
through the proposed rule. Several public comments were received 
related to the IRFA or to economic impacts generally. Those comments 
and NMFS responses to them are summarized in the Response to Comments 
section. NMFS has prepared a Regulatory Impact Review (RIR) and a Final 
Regulatory Flexibility Analysis (FRFA), taking into consideration the 
public comments received. A summary of the final FRFA follows. The FRFA 
is available upon request (see ADDRESSES), or may be accessed on NMFS 
web site at www.nwr.noaa.gov.
    This ESA 4(d) rule has no specific requirements for regulatory 
compliance; it essentially sets an enforceable performance standard (do 
not take listed fish) that applies to all entities and individuals 
within the ESU unless that activity is within a carefully circumscribed 
set of activities on which NMFS will not impose the take prohibitions. 
Hence, the universe of entities reasonably expected to be directly or 
indirectly impacted by the prohibition is broad.
    The geographic range of these regulations crosses four states and 
the number of entities potentially affected by imposition of take 
prohibitions is substantial. Activities potentially affecting salmonids 
are those associated with agriculture, forestry, fishing, mining, heavy 
construction, highway and street construction, logging, wood and paper 
mills, electric services, water transportation, tourism, real estate, 
and other industries. As many of these activities involve local, state, 
and Federal oversight, including permitting, governmental activities 
from the smallest towns or planning units to the largest cities will 
also be impacted. The activities of some nonprofit organizations will 
also be affected by these regulations.
    NMFS examined in as much detail as practical the potential impact 
of the

[[Page 42474]]

regulation on a sector by sector basis. Unavailable or inadequate data 
leaves a high degree of uncertainty surrounding both the numbers of 
entities likely to be affected, and the characteristics of any impacts 
on particular entities. The problem is complicated by differences among 
entities even in the same sector as to the nature and size of their 
current operations, proximity to waterways, the degree to which the 
operation is already protective of salmonids, and individual strategies 
for dealing with the take prohibitions.
    There are no recordkeeping or reporting requirements associated 
with the take prohibition and, therefore, it is not possible to 
simplify or tailor recordkeeping or reporting to be less burdensome for 
small entities. Some limits, for which NMFS has found it not necessary 
to prohibit take, involve recordkeeping and/or reporting to support 
that continuing determination. NMFS has attempted to minimize any 
burden associated with programs for which the take prohibitions are not 
enacted. The final rule does not duplicate, overlap, or conflict with 
any other relevant Federal rules.
    In formulating this rule, NMFS considered several alternative 
approaches, described in more detail in the FRFA. These included:
    (1) Enacting a ``global'' protective regulation for threatened 
species, through which section 9 take prohibitions are applied 
automatically to all threatened species at the time of listing; (2) ESA 
4(d) protective regulations with no limits, or only a few limits, on 
the application of the take prohibition for relatively uncontroversial 
activities such as fish rescue/salvage; (3) take prohibitions in 
combination with detailed prescriptive requirements applicable to one 
or more sectors of activity; (4) ESA 4(d) protective regulations 
similar to the existing interim 4(d) protective regulations for 
Southern Oregon/Northern California coast coho, which includes four 
limits on the take prohibition for harvest plans, hatchery plans, 
scientific research, and habitat restoration projects, when in 
conformance with specified criteria; (5) a protective regulation 
similar to the interim rule, but with recognition of more programs and 
circumstances in which application of take prohibitions is not 
necessary and advisable; (6) an option earlier advocated by the State 
of Oregon and others, in which ESA section 9 take prohibitions would 
not be applied to any activity addressed by the Oregon Plan for Salmon 
and Watersheds, fundamentally deferring protections to the state; and 
(7) enacting no protective regulations for threatened steelhead. The 
first four alternatives would place greater burdens on small entities. 
Alternative 6 would not provide sufficient protections (see response to 
comments), while alternative 7 would leave the ESUs without any 
protection other than provided by ESA section 7 consultations for 
actions with some Federal nexus. NMFS could not support that approach 
as being consistent with the obligation to enact such protective 
regulations as are ``necessary and advisable to provide for the 
conservation of'' the listed steelhead. Alterative 5 is the approach 
taken in this rule.
    As a result of comments received related to the proposed rules and 
IRFAs, NMFS has modified the regulations to broaden the applicability 
of some limits, and to make them more flexible. For instance, the road 
maintenance limit is now generally available. The limit for development 
has been broadened to cover a greater range of types of plans or 
ordinances, and has been modified to allow for circumstances where a 
jurisdiction's ordinances may not address all of the evaluation 
criteria, but nonetheless are adequate for a limit for those aspects 
addressed. These types of adjustments provide additional options for 
jurisdictions that may wish to seek ESA compliance assurances.
    NMFS concludes that at the present time there are no legally viable 
alternatives to the final rule, as modified from the proposals, that 
would have less impact on small entities and still fulfill the agency's 
obligations to protect listed salmonids. The first four alternatives 
may result in unnecessary impacts on economic activity of small 
entities, given NMFS' judgment that more limited protections would 
suffice to conserve the species.

Executive Order 12866

    Under E.O. 12866 (58 FR 51735, October 4, 1993), NMFS has prepared 
a Regulatory Impact Review (RIR) which considers costs and benefits of 
available regulatory alternatives, including the alternative of not 
regulating. Costs and benefits include both quantifiable measures (to 
the fullest extent that these can be usefully estimated) and 
qualitative measures of costs and benefits where estimates cannot be 
meaningfully made for impacts that are essential to consider. We cannot 
quantify the economic effect of this rule, given the geographic scope 
and the size and economic dimensions of the potentially affected 
economic sectors that operate within the ESUs, but have considered 
costs and benefits qualitatively in structuring the rule. Although only 
a share of the benefits from the recovery of threatened salmonids to a 
sustainable level would be attributable to this rule, it is clear that 
the potential costs associated with imposing take prohibitions to 
protect those salmonids are associated with substantial potential 
tangible and intangible returns.
    The ESA limits NMFS to alternatives that lead to recovery, but in 
choosing among alternatives, we are obligated to consider taking the 
least cost path. NMFS has concluded that among the alternative 
regulatory approaches, the approach in this final rule (with changes 
made in response to public comment) will maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages, distributive impacts; and equity) and minimize 
costs, within the constraints of the ESA. Because this alternative 
exempts activities that fall within adequate state or local programs, 
NMFS' involvement will be more collaborative and less often require 
enforcement actions. This alternative has the greatest probability that 
compliance burdens will be equally shared, that economic incentives 
will be employed in appropriate cases, and that practical standards 
adapted to the particular characteristics of a state or region will aid 
citizens in reducing the risks of take in an efficient way. For these 
reasons, it is likely that this alternative will minimize the financial 
burden on the public of avoiding take over the long term.

Executive Order 13084  Consultation and Coordination with Indian Tribal 
Governments

    E.O. 13084 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments or the Federal 
government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. This rule does not 
impose substantial direct compliance costs on the communities of Indian 
tribal governments. Accordingly, the requirements of section 3(b) of 
E.O. 13084 do not apply to this final rule.
    Nonetheless, NMFS took several steps to inform tribal governments 
and solicit their input during development of the proposed rule, and 
made numerous adjustments to the proposal as a result of those 
contacts. A number of Indian tribal governments, as well as both the 
Columbia River Intertribal and Northwest Indian Fisheries

[[Page 42475]]

Commissions, commented formally on the proposed rules. In addition, 
NMFS has continued both informal exchanges with tribal representatives 
and meetings with tribal officials. These exchanges have resulted in 
some refinements of the rule, as well as greater appreciation by NMFS 
of the challenges ahead as it implements the rule. NMFS has proposed an 
ongoing, regular meeting schedule to assure continued exchange of 
information with the numerous tribal governments on matters of 
interest, including matters associated with this rule.

Executive Order 13132--Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Neither of those 
circumstances is applicable to this rule. In fact, this rule provides a 
route by which NMFS may defer to state and local government programs, 
where they provide necessary protections for threatened salmonids.
    Although not required by E.O. 13132, in keeping with the intent of 
the Administration and Congress to provide continuing and meaningful 
dialogue on issues of mutual state and Federal interest, NMFS conferred 
with numerous state, local and other governmental entities while 
preparing the proposed rules, and has had continued informal and formal 
contacts with all affected states. We have held workshops explaining 
the rule to interested local or regional entities and exploring 
possible implementation strategies as well as options for future limits 
with those attending.
    In addition to these efforts, NMFS staff have given numerous 
presentations to interagency forums, community groups, and others, and 
served on a number of interagency advisory groups or task forces 
considering conservation measures. Many cities, counties and other 
local governments have sought guidance and consideration of their 
planning efforts from NMFS, and NMFS staff have met with them as 
rapidly as our resources permit. Finally, NMFS' Sustainable Fisheries 
Division staff have continued close coordination with state fisheries 
agencies toward development of artificial propagation and harvest plans 
and programs that will be protective of listed salmonids and ultimately 
may be recognized within this rule. NMFS expects to continue to work 
with all of these entities in implementing this rule.

Paperwork Reduction Act

    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA) and which have been approved by 
OMB under control number 0648-0399. Public reporting burden per 
response for this collection of information is estimated to average 5 
hours for a submission on diversion screenings or for a report on 
salmonids assisted, disposed of, or salvaged; 20 hours to prepare a 
road maintenance agreement; 30 hours for an urban ordinance development 
package; and 10 hours for an urban development annual report. These 
estimates include the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Send comments 
regarding these burden estimates, or any other aspect of this data 
collection, including suggestions for reducing the burden, to NMFS (see 
ADDRESSES) and to OMB at the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Washington, DC. 20503 
(Attention: NOAA Desk Officer).

National Environmental Policy Act

    NMFS prepared an Environmental Assessment (EA), as defined under 
the authority of the National Environmental Policy Act (NEPA) of 1969, 
in connection with this regulation. Based on review and evaluation of 
the information contained in the EA, we determined that the proposed 
action to promulgate protective regulations for 14 threatened salmonid 
ESUs, and to create limits on the applicability of the prohibition on 
taking any of those salmonids would not be a major Federal action that 
would significantly affect the quality of the human environment within 
the meaning of section 102(2)(c) of NEPA of 1969. NMFS received a 
number of comments related to NEPA compliance, which are summarized 
together with responses elsewhere in this notice. NMFS believes the EA 
examined appropriate alternatives, and that preparation of an EIS is 
not required. Accordingly, we adhere to our prior Finding of No 
Significant Impact (FONSI) for this action. The EA and FONSI are 
available (see ADDRESSES).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation,

    Dated: June 19, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set out in the preamble, 50 CFR part 223 is amended as 
follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 is revised to read as 
follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also 
issued under 16 U.S.C. 1361 et seq.
    2. Section 223.203 is revised to read as follows:


Sec. 223.203  Anadromous fish.

    (a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA 
(16 U.S.C. 1538(a)(1)) relating to endangered species apply to the 
threatened species of salmonids listed in Sec. 223.102(a)(1) through 
(a)(10), and (a)(12) through (a)(19), except as provided in paragraph 
(b) of this section and Sec. 223.209(a).
    (b) Limits on the prohibitions. (1) The exceptions of section 10 of 
the ESA (16 U.S.C. 1539) and other exceptions under the Act relating to 
endangered species, including regulations in part 222 of this chapter 
II implementing such exceptions, also apply to the threatened species 
of salmonids listed in Sec. 223.102(a)(1) through (a)(10), and (a)(12) 
through (a)(19).
    (2) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to activities 
specified in an application for a permit for scientific purposes or to 
enhance the conservation or survival of the species, provided that the 
application has been received by the Assistant Administrator for 
Fisheries, NOAA (AA), no later than October 10, 2000. The prohibitions 
of paragraph (a) of this section apply to these activities upon the 
AA's rejection of the application as insufficient, upon issuance or 
denial of a permit, or March 7, 2001, whichever occurs earliest.
    (3) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(4) through 
(a)(10), and (a)(12) through (a)(19) do not apply to any employee or 
designee of NMFS, the United States Fish and Wildlife Service, any 
Federal land management agency, the Idaho Department of Fish and Game 
(IDFG), Washington Department of Fish

[[Page 42476]]

and Wildlife (WDFW), the Oregon Department of Fish and Wildlife (ODFW), 
California Department of Fish and Game (CDFG), or of any other 
governmental entity that has co-management authority for the listed 
salmonids, when the employee or designee, acting in the course of his 
or her official duties, takes a threatened salmonid without a permit if 
such action is necessary to:
    (i) Aid a sick, injured, or stranded salmonid,
    (ii) Dispose of a dead salmonid, or
    (iii) Salvage a dead salmonid which may be useful for scientific 
study.
    (iv) Each agency acting under this limit on the take prohibitions 
of paragraph (a) of this section is to report to NMFS the numbers of 
fish handled and their status, on an annual basis. A designee of the 
listed entities is any individual the Federal or state fishery agency 
or other co-manager has authorized in writing to perform the listed 
functions.
    (4) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to fishery harvest 
activities provided that:
    (i) Fisheries are managed in accordance with a NMFS-approved 
Fishery Management and Evaluation Plan (FMEP) and implemented in 
accordance with a letter of concurrence from NMFS. NMFS will approve an 
FMEP only if it clearly defines its intended scope and area of impact 
and sets forth the management objectives and performance indicators for 
the plan. The plan must adequately address the following criteria:
    (A) Define populations within affected listed ESUs, taking into 
account spatial and temporal distribution, genetic and phenotypic 
diversity, and other appropriate identifiably unique biological and 
life history traits. Populations may be aggregated for management 
purposes when dictated by information scarcity, if consistent with 
survival and recovery of the listed ESU. In identifying management 
units, the plan shall describe the reasons for using such units in lieu 
of population units, describe how the management units are defined, 
given biological and life history traits, so as to maximize 
consideration of the important biological diversity contained within 
the listed ESU, respond to the scale and complexity of the ESU, and 
help ensure consistent treatment of listed salmonids across a diverse 
geographic and jurisdictional range.
    (B) Utilize the concepts of ``viable'' and ``critical'' salmonid 
population thresholds, consistent with the concepts contained in the 
technical document entitled ``Viable Salmonid Populations (NMFS, 
2000b).'' The VSP paper provides a framework for identifying the 
biological requirements of listed salmonids, assessing the effects of 
management and conservation actions, and ensuring that such actions 
provide for the survival and recovery of listed species. Proposed 
management actions must recognize the significant differences in risk 
associated with viable and critical population threshold states and 
respond accordingly to minimize the long-term risks to population 
persistence. Harvest actions impacting populations that are functioning 
at or above the viable threshold must be designed to maintain the 
population or management unit at or above that level. For populations 
shown with a high degree of confidence to be above critical levels but 
not yet at viable levels, harvest management must not appreciably slow 
the population's achievement of viable function. Harvest actions 
impacting populations that are functioning at or below critical 
threshold must not be allowed to appreciably increase genetic and 
demographic risks facing the population and must be designed to permit 
the population's achievement of viable function, unless the plan 
demonstrates that the likelihood of survival and recovery of the entire 
ESU in the wild would not be appreciably reduced by greater risks to 
that individual population.
    (C) Set escapement objectives or maximum exploitation rates for 
each management unit or population based on its status and on a harvest 
program that assures that those rates or objectives are not exceeded. 
Maximum exploitation rates must not appreciably reduce the likelihood 
of survival and recovery of the ESU. Management of fisheries where 
artificially propagated fish predominate must not compromise the 
management objectives for commingled naturally spawned populations.
    (D) Display a biologically based rationale demonstrating that the 
harvest management strategy will not appreciably reduce the likelihood 
of survival and recovery of the ESU in the wild, over the entire period 
of time the proposed harvest management strategy affects the 
population, including effects reasonably certain to occur after the 
proposed actions cease.
    (E) Include effective monitoring and evaluation programs to assess 
compliance, effectiveness, and parameter validation. At a minimum, 
harvest monitoring programs must collect catch and effort data, 
information on escapements, and information on biological 
characteristics, such as age, fecundity, size and sex data, and 
migration timing.
    (F) Provide for evaluating monitoring data and making any revisions 
of assumptions, management strategies, or objectives that data show are 
needed.
    (G) Provide for effective enforcement and education. Coordination 
among involved jurisdictions is an important element in ensuring 
regulatory effectiveness and coverage.
    (H) Include restrictions on resident and anadromous species 
fisheries that minimize any take of listed species, including time, 
size, gear, and area restrictions.
    (I) Be consistent with plans and conditions established within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its fisheries and provides to NMFS on a regular basis, as 
defined in NMFS' letter of concurrence for the FMEP, a report 
summarizing this information, as well as the implementation and 
effectiveness of the FMEP. The state shall provide NMFS with access to 
all data and reports prepared concerning the implementation and 
effectiveness of the FMEP.
    (iii) The state confers with NMFS on its fishing regulation changes 
affecting listed ESUs to ensure consistency with the approved FMEP. 
Prior to approving a new or amended FMEP, NMFS will publish 
notification in the Federal Register announcing its availability for 
public review and comment. Such an announcement will provide for a 
comment period on the draft FMEP of not less than 30 days.
    (iv) NMFS provides written concurrence of the FMEP which specifies 
the implementation and reporting requirements. NMFS' approval of a plan 
shall be a written approval by NMFS Southwest or Northwest Regional 
Administrator, as appropriate. On a regular basis, NMFS will evaluate 
the effectiveness of the program in protecting and achieving a level of 
salmonid productivity commensurate with conservation of the listed 
salmonids. If it is not, NMFS will identify ways in which the program 
needs to be altered or strengthened. If the responsible agency does not 
make changes to respond adequately to the new information, NMFS will 
publish notification in the Federal Register announcing its intention 
to withdraw the limit for activities associated with that FMEP. Such an 
announcement will

[[Page 42477]]

provide for a comment period of not less than 30 days, after which NMFS 
will make a final determination whether to withdraw the limit so that 
the prohibitions would then apply to those fishery harvest activities. 
A template for developing FMEPs is available from NMFS Northwest 
Region's website (www.nwr.noaa.gov).
    (v) The prohibitions of paragraph (a) of this section relating to 
threatened species of steelhead listed in Sec. 223.102 (a)(5) through 
(a)(9), (a)(14), and (a)(15) do not apply to fisheries managed solely 
by the states of Oregon, Washington, Idaho, and California until 
January 8, 2001.
    (5) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to activity 
associated with artificial propagation programs provided that:
    (i) A state or Federal Hatchery and Genetics Management Plan (HGMP) 
has been approved by NMFS as meeting the following criteria:
    (A) The HGMP has clearly stated goals, performance objectives, and 
performance indicators that indicate the purpose of the program, its 
intended results, and measurements of its performance in meeting those 
results. Goals shall address whether the program is intended to meet 
conservation objectives, contribute to the ultimate sustainability of 
natural spawning populations, and/or intended to augment tribal, 
recreational, or commercial fisheries. Objectives should enumerate the 
results desired from the program that will be used to measure the 
program's success or failure.
    (B) The HGMP utilizes the concepts of viable and critical salmonid 
population threshold, consistent with the concepts contained in the 
technical document entitled ``Viable Salmonid Populations'' (NMFS, 
2000b). Listed salmonids may be purposefully taken for broodstock 
purposes only if the donor population is currently at or above the 
viable threshold and the collection will not impair its function; if 
the donor population is not currently viable but the sole objective of 
the current collection program is to enhance the propagation or 
survival of the listed ESU; or if the donor population is shown with a 
high degree of confidence to be above critical threshold although not 
yet functioning at viable levels, and the collection will not 
appreciably slow the attainment of viable status for that population.
    (C) Taking into account health, abundances, and trends in the donor 
population, broodstock collection programs reflect appropriate 
priorities. The primary purpose of broodstock collection programs of 
listed species is to reestablish indigenous salmonid populations for 
conservation purposes. Such programs include restoration of similar, 
at-risk populations within the same ESU, and reintroduction of at-risk 
populations to underseeded habitat. After the species' conservation 
needs are met and when consistent with survival and recovery of the 
ESU, broodstock collection programs may be authorized by NMFS such for 
secondary purposes, as to sustain tribal, recreational, and commercial 
fisheries.
    (D) The HGMP includes protocols to address fish health, broodstock 
collection, broodstock spawning, rearing and release of juveniles, 
deposition of hatchery adults, and catastrophic risk management.
    (E) The HGMP evaluates, minimizes, and accounts for the propagation 
program's genetic and ecological effects on natural populations, 
including disease transfer, competition, predation, and genetic 
introgression caused by the straying of hatchery fish.
    (F) The HGMP describes interrelationships and interdependencies 
with fisheries management. The combination of artificial propagation 
programs and harvest management must be designed to provide as many 
benefits and as few biological risks as possible for the listed 
species. For programs whose purpose is to sustain fisheries, HGMPs must 
not compromise the ability of FMEPs or other management plans to 
conserve listed salmonids.
    (G) Adequate artificial propagation facilities exist to properly 
rear progeny of naturally spawned broodstock, to maintain population 
health and diversity, and to avoid hatchery-influenced selection or 
domestication.
    (H) Adequate monitoring and evaluation exist to detect and evaluate 
the success of the hatchery program and any risks potentially impairing 
the recovery of the listed ESU.
    (I) The HGMP provides for evaluating monitoring data and making any 
revisions of assumptions, management strategies, or objectives that 
data show are needed;
    (J) NMFS provides written concurrence of the HGMP which specifies 
the implementation and reporting requirements. For Federally operated 
or funded hatcheries, the ESA section 7 consultation will achieve this 
purpose.
    (K) The HGMP is consistent with plans and conditions set within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its hatchery program and provides to NMFS on a regular 
basis a report summarizing this information, and the implementation and 
effectiveness of the HGMP as defined in NMFS' letter of concurrence. 
The state shall provide NMFS with access to all data and reports 
prepared concerning the implementation and effectiveness of the HGMP.
    (iii) The state confers with NMFS on a regular basis regarding 
intended collections of listed broodstock to ensure congruity with the 
approved HGMP.
    (iv) Prior to final approval of an HGMP, NMFS will publish 
notification in the Federal Register announcing its availability for 
public review and comment for a period of at least 30 days.
    (v) NMFS' approval of a plan shall be a written approval by NMFS 
Southwest or Northwest Regional Administrator, as appropriate.
    (vi) On a regular basis, NMFS will evaluate the effectiveness of 
the HGMP in protecting and achieving a level of salmonid productivity 
commensurate with the conservation of the listed salmonids. If the HGMP 
is not effective, the NMFS will identify to the jurisdiction ways in 
which the program needs to be altered or strengthened. If the 
responsible agency does not make changes to respond adequately to the 
new information, NMFS will publish notification in the Federal Register 
announcing its intention to withdraw the limit on activities associated 
with that program. Such an announcement will provide for a comment 
period of no less than 30 days, after which NMFS will make a final 
determination whether to withdraw the limit so that take prohibitions, 
likeall other activity not within a limit, would then apply to that 
program. A template for developing HGMPs is available from NMFS 
Northwest Region's website (www.nwr.noaa.gov).
    (6) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(7), (a)(8), 
(a)(10), and (a)(12) through (a)(19) do not apply to actions undertaken 
in compliance with a resource management plan developed jointly by the 
States of Washington, Oregon and/or Idaho and the Tribes (joint plan) 
within the continuing jurisdiction of United States v. Washington or 
United States v. Oregon, the on-going Federal court proceedings to 
enforce and implement reserved treaty fishing rights, provided that:

[[Page 42478]]

    (i) The Secretary has determined pursuant to 50 CFR 223.209 and the 
government-to-government processes therein that implementing and 
enforcing the joint tribal/state plan will not appreciably reduce the 
likelihood of survival and recovery of affected threatened ESUs.
    (ii) The joint plan will be implemented and enforced within the 
parameters set forth in United States v. Washington orUnited States v. 
Oregon.
    (iii) In making that determination for a joint plan, the Secretary 
has taken comment on how any fishery management plan addresses the 
criteria in Sec. 223.203(b)(4), or on how any hatchery and genetic 
management plan addresses the criteria in Sec. 223.203(b)(5).
    (iv) The Secretary shall publish notice in the Federal Register of 
any determination whether or not a joint plan, will appreciably reduce 
the likelihood of survival and recovery of affected threatened ESUs, 
together with a discussion of the biological analysis underlying that 
determination.
    (v) On a regular basis, NMFS will evaluate the effectiveness of the 
joint plan in protecting and achieving a level of salmonid productivity 
commensurate with conservation of the listed salmonids. If the plan is 
not effective, then NMFS will identify to the jurisdiction ways in 
which the joint plan needs to be altered or strengthened. If the 
responsible agency does not make changes to respond adequately to the 
new information, NMFS will publish notification in the Federal Register 
announcing its intention to withdraw the limit on activities associated 
with that joint plan. Such an announcement will provide for a comment 
period of no less than 30 days, after which NMFS will make a final 
determination whether to withdraw the limit so that take prohibitions 
would then apply to that joint plan as to all other activity not within 
a limit.
    (7) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to scientific 
research activities provided that:
    (i) Scientific research activities involving purposeful take is 
conducted by employees or contractors of the ODFW, WDFW (Agencies), 
IDFG, or CDFG (Agencies), or as a part of a monitoring and research 
program overseen by or coordinated with that Agency.
    (ii) The Agencies provide for NMFS' review and approval a list of 
all scientific research activities involving direct take planned for 
the coming year, including an estimate of the total direct take that is 
anticipated, a description of the study design, including a 
justification for taking the species and a description of the 
techniques to be used, and a point of contact.
    (iii) The Agencies annually provide to NMFS the results of 
scientific research activities directed at threatened salmonids, 
including a report of the direct take resulting from the studies and a 
summary of the results of such studies.
    (iv) Scientific research activities that may incidentally take 
threatened salmonids are either conducted by agency personnel, or are 
in accord with a permit issued by the Agency.
    (v) The Agencies provide NMFS annually, for its review and 
approval, a report listing all scientific research activities it 
conducts or permits that may incidentally take threatened salmonids 
during the coming year. Such reports shall also contain the amount of 
incidental take of threatened salmonids occurring in the previous 
year's scientific research activities and a summary of the results of 
such research.
    (vi) Electrofishing in any body of water known or suspected to 
contain threatened salmonids is conducted in accordance with NMFS 
``Guidelines for Electrofishing Waters Containing Salmonids Listed 
Under the Endangered Species Act'' (NMFS, 2000a).
    (vii) NMFS' approval of a research program shall be a written 
approval by NMFS Northwest or Southwest Regional Administrator.
    (8) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(5) through 
(a)(10), and (a)(12), through (a)(19) do not apply to habitat 
restoration activities, as defined in paragraph (b)(8)(iv) of this 
section, provided that the activity is part of a watershed conservation 
plan, and:
    (i) The watershed conservation plan has been certified by the State 
of Washington, Oregon, Idaho, or California (State) to be consistent 
with the state's watershed conservation plan guidelines.
    (ii) The State's watershed conservation plan guidelines have been 
found by NMFS to provide for plans that:
    (A) Take into account the potential severity of direct, indirect, 
and cumulative impacts of proposed activities in light of the status of 
affected species and populations.
    (B) Will not reduce the likelihood of either survival or recovery 
of listed species in the wild.
    (C) Ensure that any taking will be incidental.
    (D) Minimize and mitigate any adverse impacts.
    (E) Provide for effective monitoring and adaptive management.
    (F) Use the best available science and technology, including 
watershed analysis.
    (G) Provide for public and scientific review and input.
    (H) Include any measures that NMFS determines are necessary or 
appropriate.
    (I) Include provisions that clearly identify those activities that 
are part of plan implementation.
    (J) Control risk to listed species by ensuring funding and 
implementation of the above plan components.
    (iii) NMFS will periodically review state certifications of 
Watershed Conservation Plans to ensure adherence to approved watershed 
conservation plan guidelines.
    (iv) ``Habitat restoration activity'' is defined as an activity 
whose primary purpose is to restore natural aquatic or riparian habitat 
conditions or processes. ``Primary purpose'' means the activity would 
not be undertaken but for its restoration purpose.
    (v) Prior to approving watershed conservation plan guidelines under 
paragraph (b)(8)(ii) of this section, NMFS will publish notification in 
the Federal Register announcing the availability of the proposed 
guidelines for public review and comment. Such an announcement will 
provide for a comment period on the draft guidelines of no less than 30 
days.
    (9) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to the physical 
diversion of water from a stream or lake, provided that:
    (i) NMFS' engineering staff or any resource agency or tribe NMFS 
designates (authorized officer) has agreed in writing that the 
diversion facility is screened, maintained, and operated in compliance 
with Juvenile Fish Screen Criteria, National Marine Fisheries Service, 
Northwest Region, Revised February 16, 1995, with Addendum of May 9, 
1996, or in California with NMFS' Southwest Region ``Fish Screening 
Criteria for Anadromous Salmonids, January 1997'' or with any 
subsequent revision.
    (ii) The owner or manager of the diversion allows any NMFS engineer 
or authorized officer access to the diversion facility for purposes of 
inspection and determination of continued compliance with the criteria.
    (iii) On a case by case basis, NMFS or an Authorized Officer will 
review and approve a juvenile fish screen design

[[Page 42479]]

and construction plan and schedule that the water diverter proposes for 
screen installation. The plan and schedule will describe interim 
operation measures to avoid take of threatened salmonids. NMFS may 
require a commitment of compensatory mitigation if implementation of 
the plan and schedule is terminated prior to completion. If the plan 
and schedule are not met, or if a schedule modification is made that is 
not approved by NMFS or Authorized Officer, or if the screen 
installation deviates from the approved design, the water diversion 
will be subject to take prohibitions and mitigation.
    (iv) This limit on the prohibitions of paragraph (a) of this 
section does not encompass any impacts of reduced flows resulting from 
the diversion or impacts caused during installation of the diversion 
device. These impacts are subject to the prohibition on take of listed 
salmonids.
    (10) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to routine road 
maintenance activities provided that:
    (i) The activity results from routine road maintenance activity 
conducted by ODOT employees or agents that complies with ODOT's 
Transportation Maintenance Management System Water Quality and Habitat 
Guide (July, 1999); or by employees or agents of a state, county, city 
or port that complies with a program substantially similar to that 
contained in the ODOT Guide that is determined to meet or exceed the 
protections provided by the ODOT Guide; or by employees or agents of a 
state, county, city or port that complies with a routine road 
maintenance program that meets proper functioning habitat conditions as 
described further in subparagraph (ii) following. NMFS' approval of 
state, city, county, or port programs that are equivalent to the ODOT 
program, or of any amendments, shall be a written approval by NMFS 
Northwest or Southwest Regional Administrator, whichever is 
appropriate. Any jurisdiction desiring its routine road maintenance 
activities to be within this limit must first commit in writing to 
apply management practices that result in protections equivalent to or 
better than those provided by the ODOT Guide, detailing how it will 
assure adequate training, tracking, and reporting, and describing in 
detail any dust abatement practices it requests to be covered.
    (ii) NMFS finds the routine road maintenance activities of any 
state, city, county, or port to be consistent with the conservation of 
listed salmonids' habitat when it contributes, as does the ODOT Guide, 
to the attainment and maintenance of properly functioning condition 
(PFC). NMFS defines PFC as the sustained presence of natural habitat-
forming processes that are necessary for the long-term survival of 
salmonids through the full range of environmental variation. Actions 
that affect salmonid habitat must not impair properly functioning 
habitat, appreciably reduce the functioning of already impaired 
habitat, or retard the long-term progress of impaired habitat toward 
PFC. Periodically, NMFS will evaluate an approved program for its 
effectiveness in maintaining and achieving habitat function that 
provides for conservation of the listed salmonids. Whenever warranted, 
NMFS will identify to the jurisdiction ways in which the program needs 
to be altered or strengthened. Changes may be identified if the program 
is not protecting desired habitat functions, or where even with the 
habitat characteristics and functions originally targeted, habitat is 
not supporting population productivity levels needed to conserve the 
ESU. If any jurisdiction within the limit does not make changes to 
respond adequately to the new information in the shortest amount of 
time feasible, but not longer than one year, NMFS will publish 
notification in the Federal Register announcing its intention to 
withdraw the limit so that take prohibitions would then apply to the 
program as to all other activity not within a limit. Such an 
announcement will provide for a comment period of no less than 30 days, 
after which NMFS will make a final determination whether to subject the 
activities to the ESA section 9(a)(1) prohibitions.
    (iii) Prior to implementing any changes to a program within this 
limit the jurisdiction provides NMFS a copy of the proposed change for 
review and approval as within this limit.
    (iv) Prior to approving any state, city, county, or port program as 
within this limit, or approving any substantive change in a program 
within this limit, NMFS will publish notification in the Federal 
Register announcing the availability of the program or the draft 
changes for public review and comment. Such an announcement will 
provide for a comment period of not less than 30 days.
    (v) Pesticide and herbicide spraying is not included within this 
limit, even if in accord with the ODOT guidance.
    (11) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to activities within 
the City of Portland, Oregon Parks and Recreation Department's (PP&R) 
Pest Management Program (March 1997), including its Waterways Pest 
Management Policy updated December 1, 1999, provided that:
    (i) Use of only the following chemicals is included within this 
limit on the take prohibitions: Round Up, Rodeo, Garlon 3A, Surfactant 
LI-700, Napropamide, Cutrine Plus, and Aquashade.
    (ii) Any chemical use is initiated in accord with the priorities 
and decision processes of the Department's Pest Management Policy, 
including the Waterways Pest Management Policy, updated December 1, 
1999.
    (iii) Any chemical use within a 25 ft. (7.5 m) buffer complies with 
the buffer application constraints contained in PP&R's Waterways Pest 
Management Policy (update December 1, 1999).
    (iv) Prior to implementing any changes to this limit, the PP&R 
provides NMFS with a copy of the proposed change for review and 
approval as within this limit.
    (v) Prior to approving any substantive change in a program within 
this limit, NMFS will publish notification in the Federal Register 
announcing the availability of the program or the draft changes for 
public review and comment. Such an announcement will provide for a 
comment period of no less than 30 days.
    (vi) NMFS' approval of amendments shall be a written approval by 
NMFS Northwest Regional Administrator.
    (vii) NMFS finds the PP&R Pest Management Program activities to be 
consistent with the conservation of listed salmonids' habitat by 
contributing to the attainment and maintenance of properly functioning 
condition (PFC). NMFS defines PFC as the sustained presence of a 
watershed's natural habitat-forming processes that are necessary for 
the long-term survival of salmonids through the full range of 
environmental variation. Actions that affect salmonid habitat must not 
impair properly functioning habitat, appreciably reduce the functioning 
of already impaired habitat, or retard the long-term progress of 
impaired habitat toward PFC. Periodically, NMFS will evaluate the 
effectiveness of an approved program in maintaining and achieving 
habitat function that provides for conservation of the listed 
salmonids. Whenever warranted, NMFS will identify to the jurisdiction 
ways in which the program needs to be altered or strengthened. Changes 
may be identified if the program is not

[[Page 42480]]

protecting desired habitat functions, or where even with the habitat 
characteristics and functions originally targeted, habitat is not 
supporting population productivity levels needed to conserve the ESU. 
If any jurisdiction within the limit does not make changes to respond 
adequately to the new information in the shortest amount of time 
feasible, but not longer than 1 year, NMFS will publish notification in 
the Federal Register announcing its intention to withdraw the limit so 
that take prohibitions would then apply to the program as to all other 
activity not within a limit. Such an announcement will provide for a 
comment period of no less than 30 days, after which NMFS will make a 
final determination whether to subject the activities to the ESA 
section 9(a)(1) prohibitions.
    (12) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(5) through 
(a)(10), and (a)(12) through (a)(19) do not apply to municipal, 
residential, commercial, and industrial (MRCI) development (including 
redevelopment) activities provided that:
    (i) Such development occurs pursuant to city, county, or regional 
government ordinances or plans that NMFS has determined are adequately 
protective of listed species; or within the jurisdiction of the Metro 
regional government in Oregon and pursuant to ordinances that Metro has 
found comply with its Urban Growth Management Functional Plan 
(Functional Plan) following a determination by NMFS that the Functional 
Plan is adequately protective. NMFS approval or determinations about 
any MRCI development ordinances or plans, including the Functional 
Plan, shall be a written approval by NMFS Northwest or Southwest 
Regional Administrator, whichever is appropriate. NMFS will apply the 
following 12 evaluation considerations when reviewing MRCI development 
ordinances or plans to assess whether they adequately conserve listed 
salmonids by maintaining and restoring properly functioning habitat 
conditions:
    (A) MRCI development ordinance or plan ensures that development 
will avoid inappropriate areas such as unstable slopes, wetlands, areas 
of high habitat value, and similarly constrained sites.
    (B) MRCI development ordinance or plan adequately avoids stormwater 
discharge impacts to water quality and quantity or to the hydrograph of 
the watershed, including peak and base flows of perennial streams.
    (C) MRCI development ordinance or plan provides adequately 
protective riparian area management requirements to attain or maintain 
PFC around all rivers, estuaries, streams, lakes, deepwater habitats, 
and intermittent streams. Compensatory mitigation is provided, where 
necessary, to offset unavoidable damage to PFC due to MRCI development 
impacts to riparian management areas.
    (D) MRCI development ordinance or plan avoids stream crossings by 
roads, utilities, and other linear development wherever possible, and, 
where crossings must be provided, minimize impacts through choice of 
mode, sizing, and placement.
    (E) MRCI development ordinance or plan adequately protects 
historical stream meander patterns and channel migration zones and 
avoids hardening of stream banks and shorelines.
    (F) MRCI development ordinance or plan adequately protects wetlands 
and wetland functions, including isolated wetlands.
    (G) MRCI development ordinance or plan adequately preserves the 
hydrologic capacity of permanent and intermittent streams to pass peak 
flows.
    (H) MRCI development ordinance or plan includes adequate provisions 
for landscaping with native vegetation to reduce need for watering and 
application of herbicides, pesticides, and fertilizer.
    (I) MRCI development ordinance or plan includes adequate provisions 
to prevent erosion and sediment run-off during construction.
    (J) MRCI development ordinance or plan ensures that water supply 
demands can be met without impacting flows needed for threatened 
salmonids either directly or through groundwater withdrawals and that 
any new water diversions are positioned and screened in a way that 
prevents injury or death of salmonids.
    (K) MRCI development ordinance or plan provides necessary 
enforcement, funding, reporting, and implementation mechanisms and 
formal plan evaluations at intervals that do not exceed 5 years.
    (L) MRCI development ordinance and plan complies with all other 
state and Federal environmental and natural resource laws and permits.
    (ii) The city, county or regional government provides NMFS with 
annual reports regarding implementation and effectiveness of the 
ordinances, including: any water quality monitoring information the 
jurisdiction has available; aerial photography (or some other graphic 
display) of each MRCI development or MRCI expansion area at sufficient 
detail to demonstrate the width and vegetation condition of riparian 
set-backs; information to demonstrate the success of stormwater 
management and other conservation measures; and a summary of any flood 
damage, maintenance problems, or other issues.
    (iii) NMFS finds the MRCI development activity to be consistent 
with the conservation of listed salmonids' habitat when it contributes 
to the attainment and maintenance of PFC. NMFS defines PFC as the 
sustained presence of a watershed's habitat-forming processes that are 
necessary for the long-term survival of salmonids through the full 
range of environmental variation. Actions that affect salmonid habitat 
must not impair properly functioning habitat, appreciably reduce the 
functioning of already impaired habitat, or retard the long-term 
progress of impaired habitat toward PFC. Periodically, NMFS will 
evaluate an approved program for its effectiveness in maintaining and 
achieving habitat function that provides for conservation of the listed 
salmonids. Whenever warranted, NMFS will identify to the jurisdiction 
ways in which the program needs to be altered or strengthened. Changes 
may be identified if the program is not protecting desired habitat 
functions, or where even with the habitat characteristics and functions 
originally targeted, habitat is not supporting population productivity 
levels needed to conserve the ESU. If any jurisdiction within the limit 
does not make changes to respond adequately to the new information in 
the shortest amount of time feasible, but not longer than 1 year, NMFS 
will publish notification in the Federal Register announcing its 
intention to withdraw the limit so that take prohibitions would then 
apply to the program as to all other activity not within a limit. Such 
an announcement will provide for a comment period of no less than 30 
days, after which NMFS will make a final determination whether to 
subject the activities to the ESA section 9(a)(1) prohibitions.
    (iv) Prior to approving any city, county, or regional government 
ordinances or plans as within this limit, or approving any substantive 
change in an ordinance or plan within this limit, NMFS will publish 
notification in the Federal Register announcing the availability of the 
ordinance or plan or the draft changes for public review and comment. 
Such an announcement will provide for a comment period of no less than 
30 days.
    (13) The prohibitions of paragraph (a) of this section relating to 
threatened

[[Page 42481]]

species of salmonids listed in Sec. 223.102 (a)(12), (a)(13), (a)(16), 
(a)(17), and (a) (19) do not apply to non-Federal forest management 
activities conducted in the State of Washington provided that:
    (i) The action is in compliance with forest practice regulations 
adopted and implemented by the Washington Forest Practices Board that 
NMFS has found are at least as protective of habitat functions as are 
the regulatory elements of the Forests and Fish Report dated April 29, 
1999, and submitted to the Forest Practices Board by a consortium of 
landowners, tribes, and state and Federal agencies.
    (ii) All non-regulatory elements of the Forests and Fish Report are 
being implemented.
    (iii) Actions involving use of herbicides, pesticides, or 
fungicides are not included within this limit.
    (iv) Actions taken under alternative plans are included in this 
limit provided that the Washington Department of Natural Resources 
(WDNR) finds that the alternate plans protect physical and biological 
processes at least as well as the state forest practices rules and 
provided that NMFS, or any resource agency or tribe NMFS designates, 
has the opportunity to review the plan at every stage of the 
development and implementation. A plan may be excluded from this limit 
if, after such review, WDNR determines that the plan is not likely to 
adequately protect listed salmon.
    (v) Prior to determining that regulations adopted by the Forest 
Practice Board are at least as protective as the elements of the 
Forests and Fish Report, NMFS will publish notification in the Federal 
Register announcing the availability of the Report and regulations for 
public review and comment.
    (vi) NMFS finds the activities to be consistent with the 
conservation of listed salmonids' habitat by contributing to the 
attainment and maintenance of PFC. NMFS defines PFC as the sustained 
presence of a watershed's natural habitat-forming processes that are 
necessary for the long-term survival of salmonids through the full 
range of environmental variation. Actions that affect salmonid habitat 
must not impair properly functioning habitat, appreciably reduce the 
functioning of already impaired habitat, or retard the long-term 
progress of impaired habitat toward PFC. Programs must meet this 
biological standard in order for NMFS to find they qualify for a 
habitat-related limit. NMFS uses the best available science to make 
these determinations. NMFS may review and revise previous findings as 
new scientific information becomes available. NMFS will evaluate the 
effectiveness of the program in maintaining and achieving habitat 
function that provides for conservation of the listed salmonids. If the 
program is not adequate, NMFS will identify to the jurisdiction ways in 
which the program needs to be altered or strengthened. Changes may be 
identified if the program is not protecting desired habitat functions 
or where even with the habitat characteristics and functions originally 
targeted, habitat is not supporting population productivity levels 
needed to conserve the ESU. If Washington does not make changes to 
respond adequately to the new information, NMFS will publish 
notification in the Federal Register announcing its intention to 
withdraw the limit on activities associated with the program. Such an 
announcement will provide for a comment period of no less than 30 days, 
after which NMFS will make a final determination whether to subject the 
activities to the ESA section 9(a)(1) take prohibitions.
    (vii) NMFS approval of regulations shall be a written approval by 
NMFS Northwest Regional Administrator.
    (c) Affirmative defense. In connection with any action alleging a 
violation of the prohibitions of paragraph (a) of this section with 
respect to the threatened species of salmonids listed in Sec. 223.102 
(a)(5) through (a)(10), and (a)(12) through (a)(19), any person 
claiming the benefit of any limit listed in paragraph (b) of this 
section or Sec. 223.209(a) shall have a defense where the person can 
demonstrate that the limit is applicable and was in force, and that the 
person fully complied with the limit at the time of the alleged 
violation. This defense is an affirmative defense that must be raised, 
pleaded, and proven by the proponent. If proven, this defense will be 
an absolute defense to liability under section (a)(1)(G) of the ESA 
with respect to the alleged violation.
    (d) Severability. The provisions of this section and the various 
applications thereof are distinct and severable from one another. If 
any provision or the application thereof to any person or circumstances 
is stayed or determined to be invalid, such stay or invalidity shall 
not affect other provisions, or the application of such provisions to 
other persons or circumstances, which can be given effect without the 
stayed or invalid provision or application.
[FR Doc. 00-16933 Filed 7-7-00; 8:45 am]
BILLING CODE 3510-22-F