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

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 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

Garth Griffin at 503-231-2005 or Craig Wingert at 562-980-4021.

Electronic Access

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

SUPPLEMENTARY INFORMATION:

Background

On August 18, 1997, NMFS published a final rule listing the Snake River Basin (SRB), Central California Coast (CCC), and South/Central California Coast (SCCC) steelhead (

Onchorynchus

mykiss

) ESUs as threatened species under the ESA (62 FR 43937). On March 19, 1998, NMFS published a final rule listing the Lower Columbia River (LCR) and Central Valley, California (CVC) steelhead ESUs as threatened species under the ESA (63 FR 13347). On March 25, 1999, NMFS published a final rule listing the Middle Columbia River (MCR) and Upper Willamette River (UWR) steelhead ESUs as threatened (64 FR 14517). Those final listing documents describe the background of the steelhead listing actions and provide summaries of NMFS' conclusions regarding the status of the listed steelhead ESUs. On August 10, 1998 (63 FR 42587), NMFS, on behalf of the Secretary, published a final rule listing the Oregon Coast (OC) ESU of coho salmon (

Oncorhynchus

kisutch

, or

O

.

kisutch

) as threatened. By a final rule published on March 24, 1999 (64 FR 14308), NMFS listed as threatened the Puget Sound (PS), Lower Columbia River (LCR) and Upper Willamette River (UWR) ESUs of west coast chinook salmon (

Oncorhynchus

tshawytscha

, or

O

.

tshawytscha

) in Washington and Oregon. By a final rule published on March 25, 1999 (64 FR 14508), NMFS listed as threatened the Hood Canal Summer-run (HCS) and Columbia River (CR) chum salmon ESUs (

Oncorhynchus

keta

, or

O

.

keta

) in Washington and Oregon. By a final rule published on March 25, 1999 (64 FR 14528), NMFS listed as threatened the Ozette Lake ESU of sockeye salmon (

Oncorhynchus

nerka

, or

O

.

nerka

) in Washington. Those final rule listing notifications describe the background of the listing actions and provide a summary of NMFS' conclusions regarding the status of the threatened coho, chinook, chum, and sockeye salmon ESUs.

Section 4(d) of the ESA provides that whenever a species is listed as threatened, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of the species. Such protective regulations may include any or all of the prohibitions that apply automatically to protect endangered species under ESA section 9(a)(1). Those section 9(a)(1) prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any wildlife species listed as endangered, without written authorization. It is also illegal under ESA section 9(a)(1) to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Section 11 of the ESA provides for civil and criminal penalties for violation of section 9 or of regulations issued under the ESA.

Whether section 9(a)(1) prohibitions or other protective regulations are necessary and advisable is in large part dependent upon the biological status of the species and potential impacts of various activities on the species. These threatened species are likely to become endangered species within the foreseeable future. Their current threatened status cannot be explained by natural cycles in ocean and weather conditions. NMFS has concluded that threatened chinook, coho, chum, sockeye, and steelhead are at risk of extinction primarily because their populations have been reduced by human “take”. West Coast populations of these salmonids have been depleted by take resulting from harvest, past and ongoing destruction of freshwater and estuarine habitats, hydropower development, hatchery practices, and other causes. “Factors for Decline: A Supplement to the Notice of Determination for West Coast Steelhead” (NMFS, 1996) and “Factors Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 West Coast Steelhead Factors for Decline Report” (NMFS, 1998)

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

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

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

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

The Oregon Plan for Salmon and Watersheds.

Response

: The ESA 4(d) rule provides an option for state and other jurisdictions to assume leadership for species conservation at the state and local level over and above the conventional tools for processing state and local conservation planning under the ESA through section 7 consultations and section 10 permitting. NMFS is assembling all the Federal, tribal, state, and local programs needed to save salmonids and has offered to collaborate with any entity interested in this 4(d) option. NMFS is especially interested in state-level conservation efforts because state-level programs tailored to meet the needs of the listed stocks can be a very efficient and comprehensive method to provide for the conservation of listed stocks and their habitat. A number of state and local entities have stepped forward to work with NMFS and we are anxious to work with them. However, limits that were not outlined in the proposed rule for public comment will have to be dealt with in a future amendment.

Comment 11

: Commenters requested that NMFS clarify that activities conducted pursuant to an approved state or Federal permit are free from the ESA section 9 take prohibitions.

Response

: Activities conducted pursuant to an approved state or Federal permit are subject to take prohibitions. Individual programs can seek relief from any take liability through a section 7 consultation, a section 10 permit process, or a program approved under a 4(d) limit.

Comment 12

: Commenters argued that the nature of some programs (e.g., road construction, gravel mining, water withdrawals, levee construction, and certain development) should disqualify them from consideration for limits on take prohibitions under an ESA 4(d) rule.

Response

: Under the proposal, all programs must fulfill the same standard to be included in an ESA 4(d) rule (i.e., they must conserve the species and meet their biological requirements). The important issue here is that threatened salmonids need meaningful, practical, and reliable conservation measures. Some programs will naturally have more difficulty meeting that standard than others. The ESA 4(d) rule simply applies the take prohibitions and allows for the development and implementation of conservation measures.

Comment 13

: Several commenters suggested that the use of pesticides and herbicides should be considered a resource management tool and, therefore, be included as a limit by NMFS in the 4(d) rule. Several commenters argued that the proposed take guidance violates the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and, thereby, trespasses unlawfully into Environmental Protection Agency (EPA) authorities and violates the take exemption provided for FIFRA-registered pesticides.

Response

: NMFS acknowledges that some view the current use of pesticides as essential to successful commercial crop production on agricultural lands, certain types of habitat restoration projects, and dealing with invasive exotic species. NMFS does not currently have specific information on the potential effects on listed salmonids of the very large number of pesticide products currently in use. Accordingly, NMFS is not able to conclude that the otherwise lawful use of these products is sufficiently benign to warrant an explicit limitation of the take prohibition in this rule. NMFS, therefore, has not incorporated such a limit.

For the same reason, NMFS is also unable to make an affirmative finding that the otherwise-lawful use of these products may cause harm to listed salmonids in potential violation of this final rule.

NMFS will continue to conduct scientific research into the potential for adverse effects upon salmonids of a variety of pesticides. NMFS intends to work closely with EPA and state authorities which have primary responsibility for ensuring the proper use of these products under relevant Federal and state regulatory regimes. Should information come forward to suggest that the otherwise lawful use of a pesticide harms or injures listed salmonids and might be in violation of this rule, NMFS anticipates addressing the concern through a section 7 consultation with EPA, NRCS, or United States Fish and Wildlife Service (FWS) as appropriate, or corresponding discussions with responsible state authorities. NMFS prefers this approach rather than use its enforcement authorities against an individual applicator for the otherwise-lawful use of the pesticide. Similarly, if NMFS, with due consideration of any more restrictive state requirements for a pesticide's use, finds that a limitation on the prohibition against take for the use of selected pesticides is necessary and advisable for the conservation of listed salmonids, it may amend this rule accordingly. Through such a programmatic approach, NMFS believes that it will be able to achieve an orderly and comprehensive analysis of the use of pesticides and their effects on listed salmonids.

Comment 14

: A few commenters argued that ESA Habitat Conservation Plans (HCPs) should not be free from take prohibitions under a 4(d) rule.

Response

: A section 10 incidental take permit (issued after analyzing the accompanying habitat conservation plan) authorizes a specified level of take. Including incidental take permits in the first limit of this rule is, thus, consistent with the structure and intent of the ESA.

Comment 15

: A few commenters requested that NMFS prescribe standards (temporary or otherwise) for agricultural activities to be included in an ESA 4(d) rule.

Response

: Different entities (including agricultural interests) have expressed a strong preference for standards developed at the local level (not one-size-fits-all standards). The 4(d) rule was written to foster local interest and support tailor-made programs and NMFS stands ready to work with any interested entity in forging such standards. On the issue of agricultural practices in particular, NMFS is working with a number of agricultural entities to explore conservation practices which might contribute to the conservation of salmonids and their habitats, and is hopeful that these discussions will yield further details on proper conservation practices to help conserve salmon.

Comment 16

: A few commenters asked NMFS to work closely with FWS to clarify each other's roles to establish universal standards that cover all listed species.

Response

: The two services do work closely together on ESA implementation. For example, NMFS and FWS share identical definitions of “harm” and the proposed rule does state that “as it evaluates any program against the criteria in this rule to determine whether the program warrants a limitation on take prohibitions, NMFS will coordinate closely with FWS regional staffs.” This comment, however, is well taken and NMFS will continue to work closely with FWS to coordinate and streamline ESA implementation. NMFS notes that it is commonly requested to distinguish biological requirements of salmonids from biological requirements of other species (some under the jurisdiction of FWS).

Comment 17

: Commenters asked NMFS to establish a funding mechanism (e.g., an escrow account) to support habitat restoration activities.

Response

: Millions of dollars in Federal funding have been granted to

state programs that fund specific habitat restoration projects. NMFS will continue to support funding for these programs in the future.

Comment 18

: Several commenters argued that current conditions are a result of past practices, not current practices. They believed that NMFS has failed to justify why the little remaining habitat is important to listed fish and failed to provide detailed scientific rationale to support the agency's contention that certain activities (e.g., urban development) result in take.

Response

: NMFS disagrees. The list of examples in this final rule (see Take Guidance) as well as those provided in the proposed rule give general guidance on the types of current activities that are very likely to take threatened salmonids. While not exhaustive, this list was based on direct experience with managing salmonid populations in their natural environment and a thorough understanding of the scientific literature. The ESA listing process for these threatened salmonids has documented the decline of salmonid populations in the four western states and has identified the historic and current causes of these declines. The commenters correctly note that past practices have caused the decline of salmonid populations; however, current human activity can also kill or injure listed salmonids. Development and other human activities within riparian areas or elsewhere in the watershed alter the properly functioning condition of riparian areas. These activities can alter shading (and hence stream temperature), sediment transport and supply, organic litter and large wood inputs, bank stability, seasonal streamflow regimes, and flood dynamics. The natural functions of riparian areas and the ways in which human activities affect those processes and functions are described in the publication entitled “An Ecosystem Approach to Salmonid Conservation” (NMFS, 1996).

Comment 19

: Some commenters requested maps of “sensitive resource sites” at a large scale so local jurisdictions that deal with small land parcels may use them. Some commenters stated that NMFS should focus on areas where redds or fish are actually present, not on general definitions such as “spawning gravels.”

Response

: NMFS acknowledges the value of producing maps that identify resource sites important for the different salmonid life cycle stages. NMFS will continue to work with state entities, local jurisdictions, co-managers and citizens to increase our knowledge of threatened salmonids. NMFS will also continue to increase its own capabilities for mapping resource areas and watersheds. Because there were so many comments requesting that NMFS identify which activities have a high likelihood of resulting in take and will be priorities for enforcement action, the take guidance has been revised to focus on high risk activities. The language referring to “spawning gravels” has, therefore, been removed.

Comment 20

: One commenter requested that NMFS add the word “intentional” to clarify the take guidance regarding promotion of predator populations associated with habitat alterations.

Response

: NMFS must respectfully disagree. Whether the action is intentional or unintentional, NMFS considers habitat alterations that promote predation on listed species to be undesirable. Such actions may in fact cause injury or harm to listed salmonids.

Comment 21

: Several commenters recommended adding sediment discharge to the list of toxic chemicals and other pollutants that are very likely to injure or kill salmonids. Other commenters requested that NMFS clarify which chemicals and pollutants it is referring to in this section.

Response

: NMFS refers to toxic chemicals or other pollutants being discharged or dumped and then gives examples by listing sewage, oil, gasoline, and others. Sedimentation from timber harvest and other land use activities may plug the interstitial spaces in gravel spawning areas reducing salmon egg survival during their incubation period as well as many other deleterious effects. Based on these comments and the fact that sediment discharge may harm listed salmonids by physically disturbing or blocking streambed gravels, NMFS added soil disturbances to the list of actions that are likely to kill or injure salmonids.

Comment 22

: One commenter urged NMFS to add language in the activity category dealing with the chemical and pollutant discharge or dumping to recognize that take can also occur when these activities are carried out with a valid permit. Another commenter recommended that NMFS clarify which permits are considered “valid,” and one commenter stated that this potential “take” should only apply to waters supporting the listed salmonids.

Response

: NMFS agrees that chemical and pollutant discharge may take listed fish whether or not there is a valid permit for the discharge. In order to clarify this point, NMFS has deleted the words “particularly when done outside of a valid permit for the discharge” from the take guidance. Regarding the suggestion that take prohibitions should only be applied to waters supporting listed salmonids, the take guidance applies throughout the ESU for the listed species whether or not there are salmonids present in individual rivers or streams.

Comment 23

: One commenter noted that the introduction of non-native species likely to prey upon or displace listed species should be expanded to include non-native species that may adversely affect salmonid habitat.

Response

: NMFS agrees that non-native species may alter salmonid habitat to such an extent that the habitat may no longer provide all the functions and characteristics that support listed salmonids. The take guidance language now reflects this suggestion.

Comment 24

: Numerous commenters argued for language changes and refinements in the descriptions of actions that may injure or kill listed salmonids. The first suggestion is to expand the list of ways fish passage can be blocked to include human-induced physical, chemical, and thermal blockages.

Response

: NMFS has revised the take guidance to address this comment and to clarify its enforcement priorities.

Comment 25

: Several commenters suggested adding language to the list of activities “very likely to injure or kill salmonids” to address activities that further contribute to or maintain water quality impairments in those water bodies on the 303(d) list of the CWA.

Response

: NMFS agrees that this is an important issue and that activities that degrade water quality or maintain degraded conditions can injure listed species. This issue is already addressed in the section on discharging or dumping toxic chemicals or other pollutants into water or riparian areas and in the language changes discussed in the previous comment.

Comment 26

: Some commenters urged NMFS to state that water withdrawals can affect salmonids in more ways than adversely modifying spawning and rearing habitat. One commenter also requested that NMFS note that water withdrawals can adversely affect groundwater by capturing flow that might otherwise discharge to surface waters.

Response

: NMFS considers “spawning, rearing, and migrating” to be “essential behavioral patterns.” The word “migrating” will be added to the take guidance regarding water withdrawals. Regarding the second comment about the potential impact of water withdrawals on groundwater and surface water, NMFS cannot provide

further detail in this take guidance because the actual impacts of a given act depend on situation-specific conditions.

Comment 27

: Several commenters asked NMFS to expand the discussion of impacts arising from water diversion and flow discharges to include impacts other than changes in stream temperature.

Response

: NMFS agrees that water diversions and discharge may have other deleterious effects on salmonid habitat. These may include impacts on sediment transport, turbidity, and stream flow alterations. The actual likelihood that these actions would result in take depends on situation-specific conditions. Based on public comments, the take guidance in the final rule has been revised to clarify NMFS' intent regarding which activities are very likely to injure or kill salmonids and to identify priorities for NMFS enforcement action.

Comment 28

: Several commenters recommended moving the topics “water withdrawals” and “violation of federal or state CWA discharge permits” from the section where actions may injure or kill listed fish to the section where actions are “very likely to injure or kill salmonids.”

Response

: NMFS has revised the take guidance. One change is that water withdrawals have been added to the list of activities that are very likely to injure or kill salmonids. However, the likelihood that take will actually occur depends on the individual action. The issue of actions that violate Federal and state CWA discharge permits is not specifically addressed in the new take guidance language.

Comment 29

: One commenter urged NMFS to consider land use activities that affect more than just salmonid habitat. They highlighted the fact that adverse effects include impacts on floodplain function, natural hydrologic patterns, riparian function, and water quality. They also recommended expanding the list of land use activities identified in the proposed rule.

Response

: In a section of the preamble of the proposed rule entitled Aids for Understanding the Limits on the Take Prohibition, under Issue 2: Population and Habitat Concepts, NMFS describes properly functioning habitat conditions that create and sustain the physical and biological features essential to conserving the species. These habitat conditions recognize the importance of floodplain function and channel migration and emphasize the dynamic nature of natural systems. NMFS intends the term “salmonid habitat” to be consistent with the habitat functions and processes described in the Habitat Concepts preamble language. NMFS recognizes that different types of land use activities can impact salmonid habitat to such an extent that take may occur. Language has been added to the revised take guidance to address floodplain gravel mining and floodplain development.

Comment 30

: Several commenters argued that the take guidance needs to be clarified so that the public can understand what NMFS means in its different categories of take.

Response

: NMFS agrees that the take guidance language in the proposed rule caused confusion about which activities can result in take and what actions will be priorities for enforcement. NMFS has revised the take guidance section to focus on those activities that are very likely to injure or kill salmonids.

Comment 31

: One commenter suggested amending the proposed language concerning take due to water withdrawals by using Oregon Department of Fish and Wildlife (ODFW) minimum flows to regulate water withdrawals.

Response

: NMFS does not reference specific state, local, or private regulations or programs that might prevent take because there is such a large number of programs (and partial programs) in the different states that could be cited. Absent a program approved under section 7 or 10 of the ESA or under this rule, individual jurisdictions and private entities will need to develop, adopt, and implement programs that prevent take.

Comment 32

: One commenter suggested that NMFS clarify its intent by using the language “actually impact water quality” in the context of take occurring due to violations of Federal or state CWA discharge permits.

Response

: NMFS notes the comment. However, due to changes in the final rule's take guidance language, this specific category of activity has been eliminated.

Comment 33

: Some commenters asserted that rural areas were unfairly singled out for engaging in activities that take listed species while urban areas were given ESA 4(d) limits.

Response

: NMFS applies the prohibition against take uniformly across the landscape encompassed by the threatened species' ESUs. This take prohibition applies equally to rural areas and urban areas and the take guidance identifies activities that can occur in urban and rural areas. Limits on the take prohibitions were given to complete programs that were shown to conserve salmon and steelhead.

Comment 34

: One commenter asked that NMFS clarify the relationship between take avoidance and the designation of critical habitat.

Response

: Critical habitat is a geographic description of the areas essential for a species' conservation. These designations highlight important habitat features as well as management actions that may require special management considerations. Take avoidance relates to critical habitat in that special management actions taken (or authorized) by Federal agencies must avoid adversely modifying critical habitat.

Viable Salmonid Populations (VSP)

Comment 35

: Several commenters said that NMFS should not base policy on a document that is not complete and has not been reviewed in its final form.

Response

: Comments on the December 13, 1999, VSP draft were solicited from over 50 peer reviewers plus tribal and state co-managers. In addition, the document has been available for public comment since the draft ESA 4(d) rules were released. We have received approximately 20 peer and co-manager reviews, plus numerous public comments. These reviews, particularly those from peer-reviewers, have generally been very positive, and the document will require little substantive revision before publication as a NOAA Technical Memorandum in June of 2000.

Comment 36

: Several commenters stated that populations are generally smaller than a “distinct population segment” as defined in the ESA and NMFS has “gone too far” in proposing protection of individual populations.

Response

: In applying the VSP principles, NMFS does not mean to require equal protection of every single population. The unit requiring protection under the ESA is a “distinct population segment” (i.e., ESU). Therefore, it is the ESU that NMFS must ensure has a minimal risk of extinction. A population is the appropriate biological unit for scientifically evaluating salmonid extinction risk. The status of an ESU can be determined in large part by analyzing the individual populations that constitute the ESU, and determining how their individual statuses combine to affect ESU viability.

Comment 37

: Many commenters said that VSP is too vague to be implemented.

Response

: Where possible, NMFS has endeavored to provide numerical guidelines for viability thresholds. However, VSP generally does not provide generic quantitative criteria that can be applied to all salmonid populations because the thresholds vary by species and location. This means that

applying the VSP principles will require population- and ESU-specific evaluations. This will not be very satisfying to managers looking to VSP for “the answer,” but is the only scientifically sound course at this time. NMFS will continue to explore whether generic guidelines (or modeling approaches) may be appropriate for some criteria (e.g., minimum population size), but this requires further analysis and will not be a part of the VSP paper finalized in June. As geographically-specific VSP applications are completed, more general numerical guidelines may be possible.

Comment 38

: Several commenters noted that NMFS does not define the relationship of the VSP terms “viable” and “critical” to the ESA terms “threatened” and “endangered.”

Response

: The VSP paper does not attempt to define “threatened” and “endangered” under the ESA. Defining “threatened” and “endangered” requires policy decisions about the acceptable levels of risk to an ESU that the VSP concept does not address. It is also important to note that the terms viable and critical in VSP are often applied to populations, whereas the unit of interest with regard to the ESA is the ESU.

Comment 39

: Several commenters wanted the effects of potential actions to be evaluated on scales other than the population (some desired smaller, some larger).

Response

: Although a population is the appropriate unit for studying many biological processes, it may also be appropriate to evaluate management actions that affect units at smaller or larger spatial and temporal scales. For example, ocean harvest plans may affect multiple populations, while a habitat restoration plan only affects a small portion of a single population's habitat. The VSP concept does not preclude establishing goals at these different scales. However, management actions ultimately need to be related to population and ESU viability.

Comment 40

: Several commenters said that VSP does not adequately consider the importance of freshwater habitat.

Response

: VSP does not attempt to establish the habitat requirements for recovering populations. Habitat criteria are captured, generally, in the concept of Properly Functioning Conditions (PFC) discussed within this rule.

Comment 41

: A few commenters said that VSP does not consider important components of recovery planning, such as ecological interactions.

Response

: The VSP concept attempts to describe the population level attributes of viable salmonid populations; it does not prescribe how to recover populations. Recovery will require the entire suite of factors that impact salmon throughout their life cycle to be considered and evaluated—including ecological interactions and habitat needs. These are important issues that will need to be dealt with during recovery planning.

Comment 42

: Several commenters said that data needed to evaluate VSP parameters will not be available and, therefore, VSP concepts cannot be applied.

Response

: Data will generally not be available to thoroughly evaluate every VSP parameter. In developing the VSP guidelines, NMFS tried to consider all the processes that need to be evaluated in order to determine a population's status. If all of these processes cannot be evaluated, the VSP guidelines suggest the type of data that need to be collected. If a VSP guideline cannot be evaluated, managers must explicitly recognize the uncertainty associated with current management decisions because of a data-poor environment. The fact that VSP facilitates this recognition is, in itself, a valuable contribution.

Comment 43

: A few commenters said that VSP makes several references to “historic conditions” for evaluating population status, but does not define the time frame for “historic.”

Response

: Historic conditions are used as a reference point in evaluating population status because under historic conditions populations were assumed to have been viable. The time frame, then, refers to a period in time where the population or ESU was considered self-sustaining and may represent different eras for different groups of fish. However, it should be noted that while historical data can be a valuable tool in evaluating population status, it should not suggest that NMFS will require all populations to be at historic levels in order to be viable. The value placed on historic data and the relationship between recovery goals and historic levels will be ESU- and population-specific.

Comment 44

: One commenter argued that given the high levels of uncertainty associated with the ESU viability guidelines, the default assumption should be that all populations need to be viable in order to produce a viable ESU.

Response

: This seems to be an appropriately precautionary approach, but responses to uncertainty entail policy decisions that can only be made after carefully analyzing a specific situation.

Comment 45

: One commenter said that by defining populations, VSP claims that straying always has negative effects on viability.

Response

: In the process of identifying populations, there is no blanket assumption that straying has a negative effect on viability. Straying is a natural process, and appropriate levels of straying within and among viable populations will depend on a balance between the risks and benefits of straying. Indeed, the VSP document acknowledges the potentially critical role that straying plays in extinction and recolonization dynamics among salmonid subpopulations and populations. It should also be noted that human factors (such as stock transfers, blockage of migratory routes, and other habitat alterations) have the potential to increase rates of genetic exchange by one to two orders of magnitude over historic levels. These changes are unlikely to be beneficial.

Comment 46

: Several commenters stated that VSP does not consider certain factors to be important when evaluating population status. These factors included (1) marine-derived nutrients, (2) diversity, (3) temporal and spatial structure, and (4) genetic drift.

Response

: These topics are covered in the current draft of the VSP document, and some topics may be clarified or expanded during the revision process.

Comment 47

: A few commenters said that in evaluating VSP parameters, juvenile fish counts should be considered as well as (or instead of) adult spawner counts.

Response

: Although the VSP paper discusses using juvenile fish counts, the guidelines generally focus on adult spawners counts—and not other life stages—because spawner count data sets are prevalent throughout the region and they can be related to the extensive body of conservation biology principles with relative ease. However, NMFS does not go into great detail on monitoring and evaluation programs and should consider any scientifically defensible strategy that allows population status to be evaluated. In some cases, it may be more feasible to collect data on juveniles than adults and it may be possible to assess population viability based primarily on juvenile counts. However, the population evaluation would still need to address the principles outlined in VSP regarding all four parameters (i.e., abundance, productivity, spatial structure, and diversity).

Comment 48

: One commenter said NMFS does not take an “ecosystem approach.”

Response:

It is true that VSP focuses only on Pacific salmonid populations and the ecological processes that directly or indirectly affect them. The paper does not deal explicitly with other species or ecosystem processes that do not affect salmonids. However, given the large geographic scale and the presumed keystone role of salmonids in many ecosystems, an “ecosystem approach” is likely to emerge. Defining the management processes that may support an “ecosystem approach” is outside VSP's scope and intent.

Comment 49

: One commenter said that VSP is a framework, not a benchmark, and asserted that the states should have the latitude to develop some of their own benchmarks within this framework.

Response

: As noted in a previous response, VSP generally does not provide generic quantitative criteria. Quantitative criteria will be required in setting recovery goals for specific ESUs. In some contexts (often in reference to broad landscapes), the standard is expressed as “seeking to attain or maintain PFC.” “Contribute to PFC” is a phrase often used in reference to near-term actions that put habitat on a course to attain PFC over time and is consistent with the standard. Finally, in some circumstances (often in referring to more site-scale decisions), the standard may be expressed as “not precluding PFC.” There is no distinction in practice between these expressions of the standard.

Evaluating Habitat Conditions-Properly Functioning Conditions (PFC)

Comment 50

: Several commenters opined that PFC should be more clearly defined. Others suggested that specific numeric criteria be included.

Response

: Both the preamble and rule texts have been modified to more clearly define PFC and its central role in habitat evaluations. Proper functioning conditions create and sustain over time the physical and biological characteristics that are essential to conservation of the species, whether important for spawning, breeding, rearing, feeding, migration, sheltering, or other functions. Habitat-affecting processes include, but are not limited to vegetation growth, bedload transport through rivers and streams, rainfall runoff patterns, and river channel migration. The concept of proper function recognizes that natural patterns of habitat disturbance, such as through floods, landslides and wildfires, will continue.

NMFS measures conditions on the landscape to evaluate whether and how PFC is likely to be affected, attained or maintained by an activity. The indicators vary between different landscapes based on unique physiographic, geologic or other features. Although the indicators used to assess functioning condition may entail instantaneous measurements, they are chosen, using the best available science, to detect the health of underlying processes, not static characteristics.

The scope of any given activity is important to NMFS' analysis. The scope of the activity may be such that only a portion of the habitat forming processes in a watershed are affected by it. For NMFS to find that an activity is consistent with the conservation of the listed salmonids, only the effects on habitat functions that are within the scope of that activity will be evaluated. For example, an integrated pest management program may affect habitat forming processes related to clean water, but have no effect on physical barriers preventing access by fish to a stream.

NMFS' evaluation of an activity includes an analysis of both direct and indirect effects of the action. “Indirect effects” are those that are caused by the action and are later in time but are still reasonably certain to occur. They include the effects on species or critical habitat of future activities that are induced by the original action and that occur after the action is completed. The analysis also takes into account direct and indirect effects of activities that are interrelated or interdependent with the proposed action. “Interrelated actions” are those that are part of a larger action and depend on the larger action for their justification. “Interdependent actions” are those that have no independent utility apart from the action under consideration. NMFS has published an extensive discussion of the effects of activities in its Consultation Handbook—Procedures for Conducting Consultation and Conference Activities Under section 7 of the Endangered Species Act (March, 1998).

Though there is more than one valid analytical framework for determining effects of an activity, NMFS has developed an analytic methodology it has documented in a Matrix of Pathways and Indicators (MPI; often called “The Matrix”). The MPI can help NMFS and others identify any risks to PFC. The pathways for determining the effects of an action are represented as six conceptual groupings (e.g., water quality, channel condition, and dynamics) of 18 habitat condition indicators (e.g., temperature, width/depth ratio). Default indicator criteria (mostly numeric, though some are narrative) are laid out for three levels of environmental baseline condition: properly functioning, at risk, and not properly functioning. The effect of the action upon each indicator is classified by whether it will restore, maintain, or degrade the indicator.

The MPI provides a consistent, but geographically adaptable, framework for effects determinations. The pathways and indicators, as well as the ranges of their associated criteria, are amenable to alteration through the process of watershed analysis. The MPI, and variations on it, are widely used in consultations under Section 7 of the ESA on the effects of federal actions and will be similarly used to evaluate activities pursuant to this rule. The MPI is also used in other venues to determine baseline conditions, identify properly functioning condition, and estimate the effects of individual management prescriptions. While this assessment tool originally was developed to address forestry activities, NMFS intends to work with state, tribal, and other experts to facilitate its use in other ecological settings such as lakes, estuaries and urban settings.

Comment 51

: One commenter objected that the conservation standard for PFC was “jeopardy” or survival, which is inadequate for ESA 4(d) rules and for recovery.

Response

: PFC is not calibrated to provide for population persistence at some level less than full recovery, nor does NMFS believe that the best available science holds out the possibility of such an incremental approach to habitat conservation. Land and resource managers are required to demonstrate that their proposed activities will allow for the recovery of all essential functions of salmon habitat.

Comment 52

: Several letters addressed the applicability of the “properly functioning conditions” concept to urban settings and questioned whether PFC could ever be attained in urban environments.

Response

: It is widely recognized that urbanization alters the hydrologic behavior of once unpaved, undeveloped lands. Within this context, common goals for the management of urban landscapes include controlling stormwater runoff and protecting water quality. An urban watershed can become properly functioning if the ecological functions essential for listed salmonids within the watershed-such as storage, attenuation of peak flows, and water quality mitigation—can be restored by increasing watershed storage and providing buffers to attenuate water quality problems emanating from urban landscapes. In this context, the PFC goal

is to restore the hydrologic function in the urban watershed by modifying peak flow events, providing storage, protecting water quality and habitat, and allowing passage.

Comment 53

: One commenter stated that the draft VSP concept and NMFS' established PFC approach were inconsistent.

Response

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

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

Comment 54

: Commenters asserted that the proposed rule exceeds NMFS' authority, either by reaching too far in protections or failing to meet ESA mandates by not being protective enough. Many commenters raised questions about the legal standards underlying limits and about the relationship between section 4(d) and section 7 consultations or section 10 habitat conservation plans. Several asserted that the standards for all three functions should be the same; others emphasized that the standard for 4(d) is more protective, stating that it must conserve the listed species.

Response

: Many of those comments focus more on the limits provided than on the legally enforceable outcome of the rule (the take prohibitions). This response will first set forth in a general fashion the basis for this final rule, and then respond to the remainder of legal issues that are not included in the overall description.

First, section 4(d) regulations are those “necessary and advisable to provide for conservation” of the threatened salmonids. This final rule imposes one major regulatory prohibition (in addition to the less significant prohibitions of section 9(a)(1) or interstate commerce and import/export): that is, that actors are to avoid taking threatened salmonids of the 14 listed ESUs. The take prohibitions are what the ESA imposes by statute to protect endangered species and, if perfectly implemented, would provide the most protection possible. There is no question but that take prohibitions “provide for the conservation” of the species.

Nor can there be any real question about the advisability of imposing take prohibitions at all. NMFS' listings were based on findings that the ESUs are at risk and specifically that there are factors (set forth in ESA section (4(a)(1)) that have caused and are continuing to cause the listed ESUs' populations to decline. See “Factors for Decline: A Supplement to the Notice of Determination for West Coast Steelhead” (NMFS, 1996); Coastal Coho Habitat Factors for Decline and Protective Efforts in Oregon” (NMFS, 1997), and “Factors Contributing to the Decline of Chinook Salmon: An Addendum to the 1996 West Coast Steelhead Factors for Decline Report” (NMFS, 1998). Many of these factors (habitat destruction, overutilization, inadequate regulatory systems) are state, local, or private, and have no link to Federal actions. Prohibiting take for these ESUs is, therefore, the most direct way of protecting the listed species. NMFS listed two additional chinook ESUs as threatened in September of 1999 and will be proposing ESA 4(d) protections for them in the near future.

This final rule also establishes 13 circumstances in which NMFS does not find it necessary and advisable to apply the take prohibitions. NMFS believes that by describing (wherever possible) a program or the components of a program that will adequately protect the species, it provides valuable guidance to agencies or individuals wishing to play a part in salmonid protection and will minimize their legal risks under the ESA as well. NMFS further believes that it is appropriate to limit the take prohibitions for such programs provided that NMFS' salmonid conservation goal (and legal responsibility) is not compromised—that is, so long as the rule provides for conservation of the listed ESUs. Thus, this final rule limits the application of the take prohibitions selectively. NMFS is confident that given the stringency of the fish protections in the programs receiving limits on the take prohibitions, this final rule meets the section 4(d) conservation standard.

In determining that take prohibitions are not necessary and advisable for a particular program, NMFS has ensured that each program—including programs that NMFS will evaluate in the future to determine whether they fit within one of the 13 limits—will not jeopardize the species. That is, none will appreciably reduce the likelihood of survival and recovery of any of the ESUs in the wild.

Further, for some programs involving sectors which have had particularly destructive impacts on habitat or bear other significant responsibility for decline of the species, there must be a demonstration above and beyond “not jeopardizing.” Just as a Federal agency has a responsibility not only to conduct its affairs in a way that does not jeopardize but also to use its authorities in furtherance of the conservation of the species, ESA 4(d) regulations as a whole must provide measures necessary and appropriate to conserve the species. Hence, while for many actions or programs “not jeopardizing” may be equivalent to not precluding or impairing recovery, for others it may be necessary to include commitments for specific positive contributions that are vital to recovery because of past impacts from those sectors. NMFS has taken those considerations into account when evaluating potential programs (or establishing approval criteria) to determine if they qualify for inclusion in one of the limits.

By statutory definition, species conservation equates to those methods and procedures that will bring a species to the point at which it no longer needs the protections of the ESA and may be delisted. Those methods and procedures encompass the full array of actions that will contribute to recovery: Federal efforts to avoid jeopardy and conserve the species under section 7; efforts taken in accord with section 10 conservation plans; state, tribal, local, or private initiatives undertaken to improve the prospects of listed fish quite independent of any ESA requirement; efforts to avoid taking listed species; and habitat improvements accomplished under numerous regulatory programs for protecting other resources, such as the CWA, state and Federal regulations governing fill and removal in waterways, and the like.

NMFS believes this final rule reflects the necessary and appropriate level of protections for conserving these threatened ESUs given our current

knowledge. As the preamble to the proposed rule noted, NMFS recognizes that new information may lead to changes in the final rule. NMFS has not yet completed recovery planning for the species subject to this final rule, nor does the ESA command that recovery planning precede enactment of 4(d) regulations. Once recovery planning is complete, NMFS may amend the 4(d) protections with any combination of new or amended limits, impose the take prohibitions if a limit were found not to be consistent with a necessary and appropriate recovery measure, or require enhancements or prescriptions.

Comment 55

: A few commenters asserted that NMFS gives no indication that it intends to comply with ESA sections 7 or 10 in promulgating or implementing these rules.

Response

: Promulgation of a section 4(d) rule is a Federal action requiring consultation under section 7 of the ESA. NMFS must ensure through its internal consultation process that the 4(d) rule being promulgated is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of their critical habitat. NMFS completed the required consultation and concluded that promulgation of this rule greatly improves protections for threatened salmonids and their habitat, and is not likely to adversely affect either those ESUs or other listed species. NMFS has complied with its section 7 consultation requirements.

Where take prohibitions are imposed, those pursuing actions that may take listed salmonids may choose to apply for a section 10 permit at any time. Section 10 permits are issued on a case-by-case basis supported by individual analysis and section 7 consultation. Where NMFS has found it not necessary to impose take prohibitions, there would be no basis for issuing research or enhancement or incidental take permits through section 10, provided the action is carried out in accordance with the requirements of the applicable limit.

Comment 56

: One commenter urged that NMFS make clear that no state or local rule shall hinder NMFS or citizens from taking legal actions to ensure salmon recovery. Another asked that NMFS provide for citizen enforcement and appeal of local government permits re ESA issues. A third commenter suggested that the limits be revised to reflect the idea that they extend only so far as local governments' reasonable interpretation and application of its own rules.

Response

: This final rule does not in any way alter the ESA's enforcement provisions, including the rights of third parties to enforce under appropriate circumstances. Second, NMFS believes the proposed rules clearly established that in any enforcement proceeding where there is a question whether an action is “in compliance with” one of the described limits, it is ultimately the defendant's (or respondent's) responsibility to assert that issue as an affirmative defense and establish facts that show compliance. In order to dispel any confusion by the public on this point, NMFS has added a subsection, “Affirmative defense,” to spell out that it will be the defendant's or respondent's obligation to plead application of and compliance with a limit as an affirmative defense. This approach is consistent with the structure of the proposed rule and with ESA section 1539(g) which states “In connection with any action alleging a violation of section 1538 [the section 9 prohibitions] of this title, any person claiming the benefit of any exemption or permit under this chapter shall have the burden of proving that the exemption or permit is applicable, has been granted, and was valid and in force at the time of the alleged violation.” NMFS anticipates that in most cases, the applicability of individual limits will be resolved early in an enforcement investigation. Enforcement personnel will make reasonable efforts to attempt to rule out the applicability of 4(d) limits by, for example, evaluating circumstantial evidence, or through direct contact with the potential violator and subsequent confirmation through reliable third party sources. However, ultimately it is not the agency's responsibility to determine the existence or nonexistence of every exculpatory fact relating to an alleged ESA violation. This clarification is also consistent with existing case law, which generally holds that the burden of raising and proving affirmative defenses rests with the defendant, not with the government (see, e.g.,

Patterson

v.

New York

, 97 S.Ct. 2319 (1977)).

As to the third comment, once a state or local government program comes within a limit (for instance, local development ordinances found by NMFS to meet the standards of the rule), it will be up to the local government to implement that ordinance, including any necessary exercise of reasonable judgement. If monitoring or other information indicates that the ordinance, as implemented, is not providing adequate protections, then the adaptive mechanisms in the 4(d) rule will trigger changes in the ordinance, imposition of the take prohibitions, or imposition under the ESA of affirmative requirements.

Comment 57

: One commenter suggested that the standards set in the 4(d) rule to qualify for a limit are higher than landowners would otherwise be required to meet to avoid take. Another stated that there was no consistent conservation standard applied in evaluating potential limits.

Response

: NMFS must respectfully disagree. The limits described in this final rule do not in every circumstance avoid all take. To do so would require much more stringent steps in some cases. Rather, the limits reflect NMFS' judgement that activities in compliance with such a program or approach are what current information indicates will be necessary and advisable for that activity sector to conserve the ESUs. Activities in compliance with such a program or approach will not appreciably reduce the likelihood of survival and recovery of the species in the wild and, where necessary, will include other conservation measures to repair or improve conditions. Nonetheless, it is expected—and in some cases demonstrable—that activities satisfying the conditions for inclusion within one of the limits will still take listed salmonids.

In evaluating fishery management programs to determine if they qualify for a limit, NMFS relies on the concept of viable salmonid populations and its associated use of viable and critical thresholds for management decisions. The limits require that relevant biological parameters be identified so individual population status can be evaluated and the program may be placed in an appropriate context for determining whether it will support population viability. Land management related programs being considered for limits are assessed according to their ability to help attain or maintain properly functioning conditions (i.e., those conditions NMFS considers necessary for supporting viable salmonid populations).

Comment 58

: Several commenters noted that NMFS had not made the case that take prohibitions (or any ESA 4(d) rules) are needed for these ESUs, or for specific sectors of activity. Some assert that NMFS should first demonstrate that conservation activities applicable to Federal activities have been fully tapped before applying 4(d) rules to private lands.

Response

: NMFS must respectfully disagree. While the contribution of non-Federal actions to the overall decline of the ESUs affected by this final rule varies, depending in part on the ratio of Federal to non-Federal lands and in part

on the concentration of habitat modifications and non-Federal hatchery or harvest impacts, NMFS could not justify placing all hope of sustaining and recovering these ESUs on Federal agency actions alone. The record upon which NMFS listed these ESUs is abundantly clear that the decline of the ESUs is substantially influenced by actions other than those with some Federal nexus. While section 4(d) provides the Secretary some discretion in determining what protective regulations are necessary and advisable in a given circumstance, the structure of the section strongly supports the appropriateness of a determination to impose take prohibitions.

Comment 59

: At least one commenter, while agreeing that the limits are not prescriptive rules, states that the rule making record does not support “this wide-ranging prescriptive rule” which the commenter believes prohibits “a very wide variety of activities that might occasionally “take” listed species” without NMFS' permission.

Response

: To repeat the preamble text from the proposed rules, “[t]he fact of not being within a limit would not mean that a particular action necessarily violates the ESA or this regulation.” NMFS has attempted to make even clearer in this final rule that activities that are not within a limit are not prohibited. What is prohibited is taking a threatened salmonid through any activities not within a limit. Those conducting activities that are not within a limit are subject to liability only if it can be demonstrated that their activities in fact have taken a threatened salmonid. An actor believing that its actions result in incidental take may apply for an incidental take permit under ESA section 10 to ensure that no enforcement liability accrues.

Comment 60

: Two commenters noted that they had requested the decision-making record (for the proposed rule) and were told that it was “unavailable for public review.”

Response

: Both proposed 4(d) rules included a “References” section that offered a list of the references relied on. These documents were available to the public. That is all that informal rulemaking requires.

Comment 61

: A few commenters noted that it is inconsistent with the ESA to apply the “jeopardy” standard (to not appreciably reduce the likelihood of survival and recovery in the wild) in a 4(d) rule; also, doing so for tribal plans is inconsistent with the standard applied for other “exemptions.” One commenter urged that NMFS model all of the limits after the limit for tribal plans, which provides a process for NMFS to determine a plan's consistency with ESA standards, but does not set out specific requirements or standards.

Response

: NMFS believes that none of the limits will jeopardize the listed species' survival or recovery and that each habitat-related limit will contribute to placing habitat on a trajectory toward proper function and populations on a trajectory toward viability. It is worth noting that in practical application, distinctions between what is needed for survival and recovery and between providing for recovery and not jeopardizing the likelihood of survival and recovery are speculative at best and perhaps specious. The limit for tribal plans applies that same standard but without specific requirements or standards, in deference to tribal sovereignty and the government-to-government basis on which NMFS interacts with tribes. It is important to note that while there is less specific guidance with respect to tribal resource management plans, they will be assessed against the fundamental ESA standard (whether they will appreciably reduce the likelihood of survival and recovery in the wild), as have the other limits, and that any determination regarding tribal resource management plans will be accompanied by a description of the biological rationale for its outcome.

Comment 62

: One commenter believed that the ESA 4(d) limits are “negotiated,” “second class” HCPs appropriate only to larger governmental entities and that they consign jurisdictions with smaller population bases to the fringes of the process. Another urged that all limits should be drafted so that they are made available to any government wanting to participate and get coverage under the limit.

Response

: While NMFS does not agree with the commenter's characterization of the limits, we have broadened some of the limits' availability and modified others in such a way that they are more adaptable for smaller or more rural jurisdictions. For instance, the development limit no longer targets only to “urban density” development, and the road maintenance limit is available to any jurisdiction. These sorts of adjustments are the very heart of the 4(d) limit process—they illustrate NMFS' intention to create an open process of public review and adapt our proposals (when we may) in accordance with the feedback we receive.

Comment 63

: One commenter suggested that NMFS should create “categorical exclusions” for activities not requiring the ongoing review and monitoring required in the proposed rules. The commenter points to FWS regulations that permit the Utah prairie dog to be taken under Utah state permits.

Response

: In this final rule NMFS has made a number of adjustments to make limits more broadly available and to minimize requirements for oversight. However, the prairie dog provision the commenter cites makes very clear that if those takings interfere with conserving the species, FWS may immediately prohibit further such takings. Similarly, NMFS believes that the level of “tracking” required in this final rule will ensure that impacts from non-prohibited activities are consistent with conserving the threatened salmonids.

Comment 64

: Some commenters asserted that the “proposed requirement” for protecting flows for listed species should be addressed in a local government's ordinance is beyond the scope and authority of a local government.

Response

: Evaluation consideration “J” for the MRCI limit asks that the local government ordinances ensure that [new] development-related water supply demands can be met without impacting flows needed for threatened salmonids. This request does not require local government to regulate water rights or otherwise control flows; it asks only that new development demonstrate that its new water demands can be satisfied without undercutting flows required by threatened salmonids.

Comment 65

: One commenter suggested NMFS should delegate to state and local officials authority to limit the take prohibition or provide a “certificate of safe harbor.” Another commenter suggested that ESA section 9 take prohibitions cannot apply within a state unless the state has also adopted those regulations. This comment relies on the reference within 4(d) to section 6(c)(“ ...such regulations shall apply in any State which has entered into a cooperative agreement pursuant to section 6(c) of this Act only to the extent that such regulations have also been adopted by such State”).

Response

: The approach NMFS takes in this final rule aims to recognize and encourage state and local programs wherever NMFS finds them adequate. Nothing within the ESA would give NMFS the authority to delegate the functions suggested, unless a state had the full set of authorities required under section 6 of the ESA for state “assumption” of a program. No state has as yet met those qualifications, which would include having all authorities necessary to conserve the listed species

(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,

a state may determine in its own judgement that particular activities do not carry a risk of taking listed fish, or it may modify its activities in such a way as to reduce any risk of take to an acceptable level.

Comment 73

: One commenter argues that the VSP paper is inconsistent with the statutory requirements of the ESA, because of the statement in the preamble to the proposed rules that a “viable population threshold refers to a condition where the population is self sustaining, and not at risk of becoming endangered in the foreseeable future.” The commenter suggests this implies a threatened species can be allowed to remain in threatened condition perpetually, and still be considered viable.

Response

: The commenter has identified an imprecise characterization that was included in the preamble to the proposed rules. This statement has been removed. As explained in response to other comments on VSP, the VSP paper does not attempt to define “threatened” or “endangered” under the ESA.

Comment 74

: Some commenters stated that NMFS is abusing its discretion by not invoking section 9 prohibitions, and instead relying upon promised conservation efforts and future actions that are not currently operational.

Response

: This final rule relies upon a determination that a conservation program approved for a limit of the take prohibition has a high degree of certainty that it will be implemented. NMFS may require a commitment to mitigate if implementation of a program is terminated prior to completion.

Comment 75

: One commenter asserted that NMFS should not or cannot incorporate guidance by reference unless it has undergone ESA section 7 analysis.

Response

: First, because of modifications made in response to comments, this final rule incorporates far fewer documents by reference. Second, while there is no requirement for a section 7 consultation on such documents, those referenced in the final rule have been analyzed to ensure that actions under them will not appreciably reduce the likelihood of survival and recovery of the listed ESUs in the wild.

Comment 76

: One commenter wanted the rules modified to prohibit Federal agencies from activities that “take” threatened salmonids.

Response

: In most cases this final rule does not specifically address Federal agency actions. Once take prohibitions are in effect, they apply to all actors—Federal and non-Federal alike. Second, the ESA requires that Federal actions be assessed under section 7(a)(2), and nothing written in a 4(d) rule would excuse that obligation. Once NMFS has issued a biological opinion and incidental take statement for Federal agency actions, section 7(o) of the ESA relieves the agency of liability for take.

Comment 77

: One commenter asserted that the rules could make the controllers of certain activities (such as noxious weed control) vulnerable to third-party lawsuits. Commenters expressed concern about municipal and irrigation district liability for issuing permits that result in take. One commenter stated that municipal entities cannot be held liable for take if the entity does not have discretion in issuing a permit.

Response

: The first commenter is correct that under the ESA the take prohibitions are enforceable by NMFS or by third parties. This final rule does not create any enforcement routes not specified in the ESA. The take prohibitions apply to all actors, so municipalities and irrigation districts certainly face the possibility of liability; actual liability would depend on specific factual circumstances and the degree of connection between the permit and the take that actually occurs. As to the suggested legal interpretation that a municipal entity's lack of discretion in deciding to issue a permit would be an absolute defense to liability, NMFS believes that question must be addressed in the specific enforcement context in which it arises.

Comment 78

: One commenter noted that in cases where documents create new legal rights or duties, they are considered “substantive rules” and must be either published in the

Federal Register

or be incorporated by reference through the Director of the Federal Register. Therefore, NMFS should clarify how subsequent amendments to these referenced documents will be treated.

Response

: There are seven documents referred to in the regulatory text of this final rule. The purpose of making these documents available to the public is to inform governmental entities and other interested parties of the technical components NMFS expects to be addressed in programs submitted for its review. These technical documents provide guidance to entities as they consider whether to submit a program for a 4(d) limit. The documents represent several kinds of guidance, and are not binding regulations requiring particular actions by any entity or interested party. NMFS will continue to review the applicability and technical content of its own documents as they are used in the future and make revisions, corrections or additions as needed. NMFS will use the mechanisms of this final rule to take comment on revisions of any of the referenced state programs. If any of these documents is revised and NMFS relies on the revised version to provide guidance in continued implementation of the rule, NMFS will publish in the

Federal Register

a notice of its availability stating that the revised document is now the one referred to in the specified 223.203(b) subsection.

Comment 79

: One commenter suggested that NMFS clarify the regulation regarding withdrawal of a take limit, believing those in the proposed rule to be unnecessarily harsh.

Response

: NMFS has modified the language throughout this final rule to clarify this point.

Comment 80

: One commenter stated that the final rule should be non-severable, so that if any or all limits are overturned in a legal challenge, the take prohibitions will not remain in effect. Another suggested that no take prohibition should be imposed until broad limits are available for virtually all sectors of human activity.

Response

: A fundamental precept of this final rule is NMFS' determination that the subject ESUs require 4(d) protections. Given that, it would be inconsistent with NMFS' ESA responsibilities to the threatened fish to defer any protections in that manner. NMFS has clarified this point by making it explicit that the agency intends the provisions of this rule to be severable.

Comment 81

: Because NMFS broadly applies PFC as standards with a regulatory effect, PFC guidance and supporting science should be subject to public notice and comment before it is formally applied to ESA 4(d) limitation approvals.

Response

: PFC requires the maintenance of habitat functions essential to the survival and recovery of listed salmonids. As such, the use of the PFC approach as an analytical tool adds no standard to that already established in the ESA, but rather assists NMFS and the users in evaluating effects of activities on conservation of the species.

Comment 82

: One commenter asked NMFS to clarify whether the take prohibition applies throughout the range of the ESUs or only in designated critical habitat. Another asserted that NMFS has created a de facto extension of critical habitat.

Response

: The take prohibition applies throughout the range of the affected ESUs. Critical habitat designation gives guidance to Federal agencies, and is not directly linked to ESA section 4(d) in any way. As to the

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

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

included Heavy Construction and Highway and Street Construction, which would encompass a large proportion of the activity related to residential and commercial development. We have also added information on real estate and rental leasing to the Final Regulatory Flexibility Analysis. In addition, the RIR discusses the implications of the 4(d) rule in the urban setting—including activities associated with residential and commercial development.

Comment 95

: One commenter stated that an independent third party should perform an analysis of the ESA 4(d) rules' economic impacts using economic information developed by the Federal Reserve. The commenter further stated that provisions for landowner compensation and exemption from property tax assessments must also be included as part of this rule.

Response

: There is no requirement for third party analyses, nor that NMFS use information from any particular source in its analyses. In fact, NMFS has searched broadly for economic information that might provide more quantitative estimates of the potential costs of avoiding take. The Federal Reserve does not develop such data. NMFS has no authority to provide for landowner compensation or to alter property tax assessments. One of the reasons for the approach taken in this final rule is NMFS' hope that by working with local and state government entities toward comprehensive ESA solutions, there will be smaller impacts on individual actors than might accrue from take-avoidance strategies they might otherwise adopt. Also, as is the case for small landowners under the Forests and Fish Report strategy adopted by Washington and recognized in this final rule, in some circumstances local or state governments may elect to provide offsetting compensation.

Comment 96

: Several commenters disagreed with aspects of the IRFA prepared for the proposed rules. A major concern was that the rule requires extensive reporting and paperwork.

Response

: This final rule requires only one thing: that actors refrain from taking listed fish. That performance standard does not require reporting. While taking advantage of a limit does require some level of paperwork, that course is not required; an individual or entity may choose simply to modify its actions to avoid take. Nonetheless, NMFS is aware that in some circumstances the paperwork burden is likely to increase and we stand ready to help streamline the process, give technical advice, and in general decrease that burden wherever we can.

Recovery/Delisting

Comment 97

: Many commenters raised issues regarding the timing of and relationships between ESA 4(d) rules and recovery planning. Several stated that NMFS should move forward quickly to develop recovery plans for listed species. Some requested that NMFS publish de-listing goals concurrent with the publication of the final 4(d) rules or withdraw the 4(d) rules until a recovery plan was complete. Related comments questioned whether, in the absence of recovery goals, NMFS could adequately assess the contribution to recovery made by the programs approved as limits on the take prohibition. Other commenters wondered whether the establishment of de-listing goals would require NMFS to reevaluate limits already approved or change the standards for evaluating additional limits. One commenter expressed concern that future recovery plans would simply “rubber stamp” 4(d) rules and their limits.

Response

: Recovery planning, as required by ESA section 4(f), is one of NMFS' highest priorities, and NMFS agrees that it is important to move forward quickly to establish recovery plans for listed species. NMFS does not agree that it is either necessary or advisable to publish de-listing goals and final recovery plans concurrently with, or prior to, the final 4(d) rules.

There are no statutory or regulatory requirements regarding the timing or relationships between 4(d) rules and section 4(f) recovery plans. In fact, the basic structure of the ESA itself provides that the protective mechanisms of sections 7 and 10 take effect upon the listing of a species as threatened or endangered while recovery planning follows its course through subsequent activities. Recovery plans will provide biological goals for recovery and identify an entire suite of actions needed for recovery. Thus, they may provide a more specific framework for future 4(d) rules or amendments, but the essential protective function of 4(d) rules is independent of recovery plans; that function is to prohibit take of listed species where needed. If the 4(d) rules were not promulgated until de-listing goals were developed or recovery plans completed, the species would be placed at unacceptable risk, and more stringent and costly measures would be necessary to save them.

Moreover, by applying the VSP and PFC concepts it is possible to make judgments about the contributions certain programs make to recovery. These judgments will not prejudice the comprehensive recovery planning process.

For habitat actions, NMFS may find that it is not necessary or advisable to apply the take prohibition to programs that will help attain or protect properly functioning habitat. For FMEPs, NMFS may find it is not necessary or advisable to apply the take prohibition when the program contains specific management measures that adequately limit take and otherwise protect the ESU. For Hatchery and Genetic Management Plans (HGMPs), NMFS may find that it is not necessary or advisable to apply the take prohibition when a plan is designed to minimize and adequately limit take and promote species conservation. NMFS believes that these standards are all consistent with recovery, and expects that most programs approved as limits will provide a foundation for later recovery planning measures. NMFS also anticipates that the VSP and PFC concepts will continue to evolve and provide the analytical framework for evaluating potential limits and recovery measures.

Through the process of recovery planning, NMFS may develop more specific information about measures needed for recovery or about specific areas needing more prescriptive attention. In addition, each take limit incorporated into the 4(d) rules includes provisions for continued review of its implementation and effectiveness. Thus, NMFS intends to continually reevaluate the limits. If these evaluations, or information developed through recovery planning, or any other information, indicates that a limit is inadequate for recovery, NMFS will revisit the limit.

Finally, NMFS is moving forward as quickly as resources allow to develop recovery plans. NMFS has appointed Technical Recovery Teams (TRTs) for Puget Sound and for the Willamette/Lower Columbia River Basins and Southwest Washington. These teams have begun to identify delisting goals. To conduct the more policy-oriented aspects of recovery planning, NMFS will work with state, local, tribal, and private entities to craft a recovery planning process suited to specific areas and situations. Formal recovery planning efforts will be expanded to additional geographic domains as resources permit.

Comment 98

: Several commenters addressed the issue of federal trust responsibilities to tribes in developing protection and conservation goals, plans, and measures. These commenters held that NMFS needs to make every effort to ensure that treaty rights and trust responsibilities are met through its

regulatory actions, and that thresholds, goals, and recovery plans support healthy, productive, and harvestable fish populations.

Response

: NMFS approaches the ESA 4(d) rules as a vital component of conserving the species until the protections of the ESA are no longer needed. These protections will no longer be needed only if the abundance of fish is sufficient to satisfy treaty fishing rights and to fulfill the trust obligations of the United States.

Cumulative Impacts

Comment 99

: A number of commenters questioned the reasoning behind NMFS including in the take guidance a category of activities that, while individually unlikely to injure or kill listed salmonids, may collectively have significant detrimental impacts. Commenters asserted that regulating such activities was beyond NMFS' purview. Others questioned how NMFS would enforce the prohibitions when take resulted from such activities.

Response

: NMFS agrees somewhat with this comment. The discussion of activities that do not cause take individually but that cumulatively may have significant detrimental impacts on salmonids was intended to be advisory and informative in nature and no enforcement actions in response on these activities were being contemplated. The category of activities raised a number of concerns however, and the language has been struck from the rule. Nonetheless, it is important to note that a myriad of decisions made by individuals and institutions on a daily basis, while negligible in the individual case, may have, in the aggregate, a significant detrimental impact on the ecosystem processes that support salmon and steelhead.

Comment 100

: Many commenters raised the issue of cumulative impacts. Some expressed concern that the 4(d) proposed rules did not assess the cumulative impact of all the take limits combined. Some also expressed concern that the individual take limits did not address cumulative impacts of activities covered under that limit. Several commenters requested that the final rules include an analysis of cumulative impacts as well as a mechanism for evaluating cumulative impacts caused by any future take limits. One commenter asked how and when NMFS would provide opportunities for the public to review and comment on ESU-wide assessments of cumulative take.

Response

: The suggestions regarding cumulative impacts have great merit, and NMFS is moving toward implementing a method for assessing total take across broad sectors. That function, however, would not be specific to the 4(d) context. Impacts on listed species accumulate from natural conditions as well as from illegal and unauthorized take and from actions to which the take prohibition does not apply because they fall in the realm of some other ESA mechanism (section 10 permits; section 7 consultations, or specific provisions of a 4(d) rule). Cumulative impact assessment is problematic because there are very few methods for adequately assessing cumulative impacts of habitat-modifying activities. Nonetheless, NMFS has explicitly incorporated consideration of cumulative impacts into the 4(d) rules where feasible. For example, FMEPs will evaluate the cumulative mortality of all fisheries, and HGMPs will track the number of listed fish taken as broodstock. In addition, NMFS believes that by requiring habitat-modifying activities within a limit to attain or maintain properly functioning condition, and all activities within a limit to contribute to viable salmonid populations, cumulative impacts are, to an extent, accounted for. Moreover, during the process of developing comprehensive recovery plans, NMFS and recovery teams will address the issue of cumulative impacts more systematically. The public will have the opportunity to comment on ESU-wide assessments of cumulative levels of take during the recovery plan public review process.

Comment 101

: A number of commenters recommended ways for NMFS to assess cumulative effects. One commenter asserted that meaningful assessments of cumulative risk at the ESU level would require linkage between VSP and PFC and development of a common method for evaluating the effects various activities have on populations and habitats. Another urged that NMFS adopt comprehensive habitat productivity standards to evaluate cumulative effects of habitat programs granted limits on the take prohibition. One commenter suggested that NMFS require all habitat-modifying activities to account for habitat-modification-related mortality. Another suggested that NMFS focus on cumulative take rather than dealing with take in its various permutations individually. Another suggested that the rules should mandate an annual cumulative take assessment (based on life cycle stages) for each population in an ESU. In addition, they desired that NMFS (a) examine mortality in the various populations and determine whether take from a particular sector is placing them at risk, and (b) separate human-induced mortality from that attributable to fluctuating environmental conditions and thereby adjust take regulations to provide more protection during times of environmental stress.

Response

: NMFS agrees that all of these suggestions have great merit and, as mentioned previously, NMFS is moving toward implementing a method for assessing total take across broad sectors. Also, as mentioned earlier, assessing cumulative impacts is a difficult process. In most cases, there are no adequate standards for habitat productivity and developing them is a complex and long-term task. NMFS intends to work with co-managers to develop the necessary standards and assessment techniques. In addition, during the ESA recovery planning process, NMFS will assess the mortality burdens for each ESU and life-cycle stage.

Comment 102

: One commenter asserted that limits for urban development should be analyzed within the cumulative impact context.

Response

: NMFS agrees that cumulative effects should be an important consideration in analyzing the effects of MRCI development and redevelopment. To the extent that NMFS must prioritize the evaluation process, comprehensive MRCI plans with relatively broader scopes of activities, authorities, effects, and geography (and therefore greater cumulative effects) will generally be evaluated before plans with relatively smaller scopes. Applicants with smaller-scale plans should take particular care that their effects analyses take cumulative impacts into account.

Comment 103

: Several commenters questioned whether NMFS had completed requisite cumulative effects analysis under ESA section 7 and NEPA.

Response

: NMFS has complied with section 7 consultation requirements on the adoption of the 4(d) rules by consulting both internally and with FWS. In addition, NMFS has completed an EA for this action pursuant to NEPA.

Comment 104

: One commenter asserted that the cumulative impacts consideration required by § 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

conservation plans (WCPs). In fact, it would be difficult to complete an adequate watershed analysis without having considered cumulative impacts. NMFS is confident that state WCP guidelines will be able to offer sufficient technical advice so that entities developing WCPs will be able to meet the cumulative impacts requirement.

Comment 105

: Some commenters held that the rules failed to regulate activities consistent with their incremental effects, and that the effect of the rules would be to focus NMFS staff time on urbanized areas, while greater benefit could be gained by identifying habitat areas where the most good could be achieved at the least cost, and then bringing Federal, state, and local resources to bear upon those areas. Other commenters expressed concern that the rules would disproportionately regulate the impacts of habitat modification compared to the impacts of harvest activities.

Response

: NMFS does not believe that the 4(d) rules fail to regulate activities consistent with their incremental effects. The 4(d) rules “regulate” primarily by putting into place the ESA section 9 take prohibitions. This take prohibition applies to all activities, regardless of their incremental impact on a listed species. The rules then identify certain activities that already conserve the species and for which no additional ESA regulation (i.e., take prohibitions) are necessary. These activities span a broad range and include research, aiding stranded salmonids, managing harvest and hatcheries, and land uses such as forestry, development, and road maintenance. NMFS hopes to continually expand the scope of these limits to encompass additional activities not currently addressed by limits, wherever such efforts are biologically warranted.

Limits for Scientific Research and Rescue/Salvage

Comment 106

: Several commenters stated that the ESA 4(d) limit for scientific research activities (research limit) would place excessive reporting requirements on state fisheries agencies and that these agencies lacked the funding and staffing to accommodate the additional workload.

Response

: NMFS acknowledges that, as a result of promulgating the take prohibitions, state fisheries agencies will now have a higher level of accountability for reporting take of listed salmonids and that some ESA-related reporting will be new for these agencies. However, all of the affected agencies currently oversee research permit processes for fish sampling in state waters and NMFS believes that the workload associated with this limit should be comparable with state reporting/recordkeeping requirements already in place. Much of the information NMFS is requiring under the research limit is currently generated by the state's permit process, which presently covers all entities (e.g., Federal, academic, private, and other state agency researchers) other than biologists employed by the state fisheries agency. However, these agency biologists typically produce research summaries that NMFS believes could be efficiently translated into the annual state reports supporting this limit.

Moreover, a major impetus for providing the research limit is to allow the state fisheries agencies to continue to oversee and coordinate research efforts for listed salmonids. The ESA's section 10 permitting process does not always facilitate state oversight/coordination and NMFS believes that it is advisable to minimize research impacts by streamlining the research review process in a manner that fosters active participation by state fisheries agencies. It is worth noting that as a result of previous 4(d) rulemaking (50 CFR 223.204(a)(4)), ODFW has successfully coordinated and reported scientific takings per a 1997 research limit involving listed coho salmon in southern Oregon. NMFS will work closely with all of the affected states and research entities to expand on this success while minimizing the reporting workload by incorporating existing state processes into those supporting the 4(d) limit for scientific research.

Comment 107

: Some commenters asked whether research involving direct take of listed salmon and steelhead would still require a section 10 permit and whether incidental take would be covered under the ESA 4(d) rule.

Response

: Research and monitoring activities involving either directed or incidental take of the 14 ESUs identified in this rule are covered by this 4(d) limit. Therefore, state-approved activities covered by this limit would not need to go through a separate section 10 permit process. However, if the research is not covered by the research limit, then an applicant would need to obtain an ESA section 10 permit before conducting research that could take a listed salmonid.

Comment 108

: Several commenters were confused by the language describing provisions under “Continuity of Scientific Research” and requested clarification as to what applications were needed and when take prohibitions would become effective.

Response

: As described in the proposed rules, NMFS is concerned with the potential for disrupting ongoing scientific research, monitoring, and conservation activities, especially during the coming summer/fall field seasons. Therefore, the agency is providing a temporary limit on the take prohibitions to allow such activities to continue until March 7, 2001 so that the necessary paperwork can be processed. However, to qualify for this “temporary” limit, researchers must submit a section 10 permit application to the Assistant Administrator for Fisheries (AA), NOAA by October 10, 2000 for research activities affecting listed fish in any of the 14 salmon or steelhead ESUs identified in this rule. Applicants would be subject to take prohibitions only after their permit application is denied, rejected as insufficient, or the “temporary” limit period expires, whichever occurs earliest. Researchers failing to submit an application by October 10, 2000 would be subject to take prohibitions beginning on September 8, 2000 for the seven steelhead ESUs and on January 8, 2001 for the seven salmon ESUs. NMFS will make every effort to respond to applicants in a timely fashion. However, researchers are advised to prepare for unavoidable delays that may result from the anticipated load of section 10 permit applications that will be presented to NMFS.

Parties requesting coverage under the ESA 4(d) limit on scientific research activities should consult with the ODFW, the California Department of Fish and Game (CDFG), the Idaho Department of Fish and Game (IDFG), or the Washington Department of Fish and Wildlife (WDFW) to determine when related applications are due to these oversight/coordination agencies. By October 10, 2000, NMFS will expect these agencies to submit a letter of intent to the AA, NOAA, summarizing the types of research to be covered under the 4(d) limit for any of the 14 salmon or steelhead ESUs identified in this rule. This letter will serve as a placeholder for these agencies (and the entities identified in their letter) until they can submit to NMFS a more comprehensive assessment of scientific research activities planned for the 2001 research season. Take prohibitions for these applicants would become effective after their application for the 4(d) limit is either rejected by NMFS or the “temporary” limit period expires, whichever occurs earliest. Applicants failing to submit a letter of intent by October 10, 2000 would be subject to take prohibitions beginning on

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.

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 el

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