42422 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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.

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 § 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 § 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 EastWest 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)

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

42424 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations 42425

these documents is revised and NMFS

relies on the revised version to provide

guidance in continued implementation

of the rule, NMFS will publish in the

Federal Register a notice of its

availability stating that the revised

document is now the one referred to in

the specified 223.203(b) subsection.

Notice of Availability

The following is a list of documents

cited in the regulatory text of this final

rule. Copies of these documents may be

obtained upon request (see ADDRESSES).

1. Oregon Department of

Transportation (ODOT) Maintenance

Management System Water Quality

and Habitat Guide (June, 1999).

2. City of Portland, Oregon Parks and

Recreation Department Pest

Management Program (March 1997)

with Waterways Pest Management

Policy updated December 1, 1999.

3. State of Washington, Forests and

Fish Report (April 29, 1999).

4. Guidelines for Electrofishing

Waters Containing Salmonids Listed

Under the Endangered Species Act

(NMFS, 2000a).

5. Juvenile Fish Screen Criteria,

National Marine Fisheries Service,

Northwest Region, Revised February 16,

1995, with Addendum of May 9, 1996.

6. Fish Screening Criteria for

Anadromous Salmonids (January 1997).

7. Viable Salmonid Populations and

the Recovery of Evolutionarily

Significant Units. (NMFS, 2000b).

Copies of all references, reports,

related documents and ‘‘A Citizen’s

Guide to the 4(d) Rule’’ (NMFS, 2000)

are also available upon request (see

ADDRESSES).

The limits on the take prohibitions do

not relieve Federal agencies of their

duty under section 7 of the ESA to

consult with NMFS if actions they fund,

authorize, or carry out may affect listed

species. To the extent that actions

subject to section 7 consultation are

consistent with a circumstance for

which NMFS has limited the take

prohibitions, a letter of concurrence

from NMFS will greatly simplify the

consultation process, provided the

program is still consistent with the

terms of the limit.

Applicability to Specific ESUs

In the regulatory language in this final

rule, the limits on applicability of the

take prohibitions to a given ESU are

accomplished through citation to the

Code of Federal Regulations’ (CFRs’)

enumeration of threatened marine and

anadromous species, 50 CFR 223.102.

For the convenience of readers of this

notice, 50 CFR 223.102 refers to

threatened salmonid ESUs through the

following designations:

(a) (1) Snake River spring/summer

chinook

(a) (2) Snake River fall chinook

(a) (3) Central California Coast coho

(a) (4) Southern Oregon/Northern

California Coast coho

(a) (5) Central California Coast

steelhead

(a) (6) South-Central California Coast

steelhead

(a) (7) Snake River Basin steelhead

(a) (8) Lower Columbia River

steelhead

(a) (9) Central Valley, California

steelhead

(a) (10) Oregon Coast coho

(a) (12) Hood Canal summer-run

chum

(a) (13) Columbia River chum

(a) (14) Upper Willamette River

steelhead

(a) (15) Middle Columbia River

steelhead

(a) (16) Puget Sound chinook

(a) (17) Lower Columbia River

chinook

(a) (18) Upper Willamette River

chinook

(a) (19) Ozette Lake sockeye

Summary of Comments in Response to

the Proposed Rules

Between January 10, 2000, and

February 22, 2000, NMFS held 25

public hearings to solicit comments on

the proposed ESA 4(d) rules: 7 in

Washington, 8 in Oregon, 3 in Idaho,

and 7 in California (64 FR 73479,

December 30, 1999; 65 FR 170, January

3, 2000; 65 FR 7346, February 14, 2000;

65 FR 7819, February 16, 2000). During

the 65-day public comment period,

NMFS received 1,146 written comments

on the proposed rules from Federal,

state, and local government agencies;

Indian tribes; non-governmental

organizations; the scientific community;

and individuals. In addition, numerous

individuals provided oral testimony at

the public hearings.

Based on these public hearings and

comments, NMFS now issues its final

protective regulations for these 14

salmon and steelhead ESUs. The

preamble section of this rule refers to

the prohibitions of ESA section 9(a)(1).

In addition to the commonly referred to

take prohibitions of section 9(a)(1)(B)

and 9(a)(1)(C), section 9(a)(1), also

includes prohibitions on the import,

export, sale, delivery, or transport in

interstate commerce of endangered

species. The public comments NMFS

received almost exclusively focused on

the section 9 take prohibitions. The

following comments and responses,

therefore, refer to the ‘‘take’’

prohibitions of section 9(a)(1)(B) and

9(a)(1)(C), not to the other prohibitions

described in section 9(a)(1).

Accordingly, for the rest of this

preamble and in the regulation, the term

‘‘prohibition’’ refers to the prohibition

of take within the 13 specified limits.

New information and a summary of

comments received in response to the

proposed rules are summarized as

follows.

Comments and Responses

Take Guidance

Comment 1: Some commenters stated

that a primary focus of the proposal was

to encourage development of local

tailor-made measures that protect

salmonids and they requested further

guidance on how their programs could

be included in future ESA 4(d) rules.

Response: Credible local initiatives

are indeed needed to help save these

species, and guidance on how local

programs can be included in 4(d) rules

is available in The ESA and Local

Governments: Information on 4(d)

Rules, May 7, 1999. In addition, NMFS

staff will be available to offer advice and

otherwise help individual jurisdictions

and entities ensure that their actions do

not take listed fish.

Comment 2: Some commenters

wanted a simplified process (e.g., a

‘‘letter of approval’’ from NMFS staff)

for including local programs in future

ESA 4(d) rules.

Response: NMFS worked with state

and local authorities to identify several

categories of activities where local

programs can be certified to comply

with ESA requirements if they meet the

conditions described in the rule. This

simplified process would be available

for land-use development activities,

water diversion screening, road

maintenance, hatchery operations,

fisheries harvest, fisheries related

research, and habitat restoration

activities. Other governmental entities

are encouraged to step forward and

work with NMFS. First, to ensure that

local programs meet the salmon’s

biological requirements and the

mandates of the ESA, and second, to

streamline the administration of any

program.

Comment 3: A number of commenters

stated that the proposed take guidance

was too vague (e.g., guidance in the

limit for new urban density

development). Others commented that

the guidance was too prescriptive, and

still others stated that the guidance was

less stringent for some categories of

activities and more stringent for others.

Response: To be approved for a limit

from ESA take prohibitions, a program

42426 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

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

42428 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 nonnative 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

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

42430 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 geographicallyspecific 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 selfsustaining 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 populationspecific.

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.’’

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

42432 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 finescale 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

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

42434 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 decisionmaking 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-togovernment 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 nonprohibited 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

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

42436 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 nonseverable, 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

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

42438 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

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

42440 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 ESUwide 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 habitatmodifying 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-modificationrelated 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

§ 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

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

42442 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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.

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

42444 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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, selfsustaining 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 fishingrelated 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-byESU 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 comanagers 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-byESU 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

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

42446 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 comanager 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.

Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations 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-bycase 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 comanagers 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 comanager who wishes to utilize the ESA

4(d) process rather than the section 10

process must develop a detailed HGMP.

42448 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

§ 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 § 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

Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations 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 § 223.203(b)(8)(ii) interim

period to allow development of state

guidelines and WCP to the WCP context

of § 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 ESUspecific recovery efforts, will be crucial

components of species recovery.

Comment 161: Several commenters

pointed out that the assured funding

criterion § 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

42450 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 § 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

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

42452 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 NMFSauthorized 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/

expltech1.htm. This position paper

describes the process NMFS requires for

a proponent of experimental technology

to demonstrate that a particular nonconforming 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 nonconforming 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 sitespecific 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

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

42454 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 inwater 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

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

42456 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

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

42458 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 § 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 TriCounty’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.

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

42460 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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.

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

42462 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

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

42464 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 habitatrelated 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 fishbearing 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 fishbearing 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

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

42466 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 habitataltering 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

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

42468 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

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

42470 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

(§ 223.102(a)(5) through (a)(9) and

(a)(14) and (a)(15)) is September 8, 2000.

The effective date for the salmon ESUs

(§ 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

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

42472 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

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

42474 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

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

§ 223.12 also issued under 16 U.S.C. 1361 et

seq.

2. Section 223.203 is revised to read

as follows:

§ 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 § 223.102(a)(1)

through (a)(10), and (a)(12) through

(a)(19), except as provided in paragraph

(b) of this section and § 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

§ 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 § 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 § 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

42476 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 comanagement 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 § 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

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

42478 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

(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 § 223.203(b)(4), or on how any

hatchery and genetic management plan

addresses the criteria in § 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

§ 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

§ 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

§ 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

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

42480 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 § 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

Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations 42481

species of salmonids listed in § 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 § 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 § 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 223

[Docket No. 991207318–0159–02; I.D. No

092799G]

RIN 0648–AG15

Limitation on Section 9 Protections

Applicable to Salmon and Steelhead

Listed as Threatened under the

Endangered Species Act (ESA), for

Actions Under Tribal Resource

Management Plans

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: The National Marine

Fisheries Service (NMFS) is issuing a

final rule to modify the ESA section 9

take prohibitions applied to threatened

salmon and steelhead. The modification

will create a section 4(d) limitation on

those prohibitions for tribal resource

management plans (Tribal Plans), where

the Secretary of Commerce (Secretary)

has determined that implementing that

Tribal Plan will not appreciably reduce

the likelihood of survival and recovery

for the listed species. This rule intends

to harmonize statutory conservation

requirements with tribal rights and the

Federal trust responsibility to tribes.

DATES: Effective September 8, 2000.

ADDRESSES: Branch Chief, NMFS,

Northwest Region, Protected Resources

Division, 525 NE. Oregon St., Suite 500,

Portland, OR 97232–2737; Assistant

Regional Administrator, Protected

Resources Division, NMFS, Southwest

Region, 501 West Ocean Blvd., Suite

4200, 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; Craig

Wingert at 562–980–4021.

Electronic Access

Reference materials regarding this

final rule can also be obtained from the

internet at www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

Indian Tribe—Any Indian tribe, band,

nation, pueblo, community or other

organized group within the United

States which the Secretary of the

Interior has identified on the most

current list of tribes maintained by the