Endangered and Threatened Species; Proposed Rule Governing Take of Threatened Snake River, Central California Coast, South/Central California Coast, Lower Columbia River, Central Valley California, Middle Columbia River, and Upper Willamette River Evolutionarily Significant Units (ESUs) of West Coast Steelhead

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 991207324-9324-01; I.D. No 081699C]

RIN 0648-AK94

Endangered and Threatened Species; Proposed Rule Governing Take

of Threatened Snake River, Central California Coast, South/Central

California Coast, Lower Columbia River, Central Valley California,

Middle Columbia River, and Upper Willamette River Evolutionarily

Significant Units (ESUs) of West Coast Steelhead

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments and notice of public

hearings.

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SUMMARY: Under section 4(d) of the Endangered Species Act (ESA), the

Secretary of Commerce (Secretary) is required to adopt such regulations

as he deems necessary and advisable for the conservation of species

listed as threatened. This proposed ESA 4(d) rule represents the

regulations NMFS believes necessary and advisable to conserve the seven

listed threatened steelhead ESUs. Note that this rules applies only to

the identified steelhead species. Effects resulting from implementation

of activities on other listed species (e.g., bull trout) must be

addressed through ESA section 7 and section 10 processes as

appropriate. The rule would apply the take prohibitions enumerated in

section 9(a)(1) of the ESA in most circumstances to seven threatened

steelhead ESUs. NMFS does not find it necessary or advisable to apply

the take prohibitions to specified categories of activities that

contribute to conserving listed salmonids or are governed by a program

that adequately limits impacts on listed salmonids. The proposed rule

describes 13 such limits on the application of the take prohibitions.

DATES: Comments on this rule must be received at the appropriate

address (see ADDRESSES), no later than 5:00 p.m., eastern standard

time, on February 22, 2000. Public hearings on this proposed action

have been scheduled. See SUPPLEMENTARY INFORMATION for dates and times

of public hearings.

ADDRESSES: Comments on this proposed rule or requests for information

should be sent to Branch Chief, Protected Resources Division, NMFS,

Northwest Region, 525 NE Oregon Street, Suite 500, Portland, OR 97232-

2737. Comments will not be accepted if submitted via e-mail or

Internet. See SUPPLEMENTARY INFORMATION for locations of public

hearings. Parties interested in receiving notification of the

availability of new or amended Fishery Management and Evaluation Plans

(FMEPs) or Hatchery and Genetic Management Plans (HGMPs) should contact

Chief, Hatchery/Inland Fisheries Branch, NMFS, Northwest Region, 525 NE

Oregon Street, Suite 510, Portland, OR 97232-2737, or Assistant

Regional Administrator, Sustainable Fisheries Division, NMFS, Southwest

Region, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.

Parties interested in receiving notification of the availability of

draft Watershed Conservation Plan Guidelines or draft changes to Oregon

Department of Transportation's (ODOTs) 1999 Maintenance of Water

Quality and Habitat Guide should contact Branch Chief, Protected

Resources Division, NMFS, Northwest Region, 525 NE Oregon Street, Suite

500, Portland, OR 97232-2737.

FOR FURTHER INFORMATION CONTACT: Garth Griffin at 503-231-2005; Craig

Wingert at 562-980-4021.

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 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 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.

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). Those section 9(a) prohibitions, in part, make it illegal

for any person subject to the jurisdiction of the United States to take

(including harass, harm, pursue, hunt, shoot, wound, kill, trap, or

collect; or to attempt any of these), import or export, ship in

interstate commerce in the course of commercial activity, or sell or

offer for sale in interstate or foreign commerce any wildlife species

listed as endangered, unless with written authorization for incidental

take. It is also illegal under ESA section 9 to possess, sell, deliver,

carry, transport, or ship any such wildlife that has been taken

illegally. Section 11 of the ESA provides for civil and criminal

penalties for violation of section 9 or of regulations issued under the

ESA.

Whether take prohibitions or other protective regulations are

necessary and advisable is in large part dependent upon the biological

status of the species and potential impacts of various activities on

the species. These species have survived for thousands of years through

cycles in ocean conditions and weather. NMFS concludes that threatened

steelhead are at risk of extinction primarily because their populations

have been reduced by human ``take.'' West Coast steelhead populations

have been depleted by take resulting from harvest, past and ongoing

destruction of freshwater and estuarine habitat, poor hatchery

practices,

[[Page 73480]]

hydropower development, and other causes. ``Factors for Decline: A

Supplement to the Notice of Determination for West Coast Steelhead''

(NMFS, 1996) 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.

The report identifies destruction and modification of habitat,

overutilization for recreational purposes, and natural and human-made

factors as being the primary reasons for the decline. Therefore it is

necessary and advisable in most circumstances to apply the section 9

take prohibitions to these threatened ESUs, in order to provide for

their conservation.

Several other populations of West Coast salmonids that are impacted

by similar risks associated with human-caused take, including chinook,

coho, chum and sockeye salmon ESUs, have also recently been listed as

threatened, and section 4(d) regulations are to be proposed for them in

a separate Federal Register document. 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 (see e.g., Strahan v. Coxe, 127

F.3d 155 (1st Cir. 1997), cert. denied, 119 S.Ct 81 (1998)).

These entities have asked NMFS to provide clarity and guidance on what

activities may adversely affect salmonids and how to avoid or limit

those adverse effects, and to apply take prohibitions only where other

governmental programs and efforts are inadequate to conserve threatened

salmonids.

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 those

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 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 salmonids. When such a program provides sufficient

conservation for listed salmonids, NMFS does not find it necessary and

advisable to apply take prohibitions to activities governed by those

programs. In those circumstances, described in greater detail here,

additional Federal ESA regulation through the take prohibitions is not

necessary and advisable because it would not meaningfully 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

take prohibitions, through the program itself and by demonstrating to

similarly situated entities that practical and realistic salmonid

protection measures exist. An additional benefit of this approach is

that NMFS can focus its enforcement efforts on activities and programs

that have not yet adequately addressed the conservation needs of listed

ESUs.

Substantive Content of Proposed Regulation

NMFS has not previously proposed any protective regulations for

five of the steelhead ESUs subject to this proposed rule. When NMFS

first proposed the LCR and SRB ESUs for listing (61 FR 41541, August 9,

1996), it also proposed to apply the prohibitions of ESA section 9(a)

to those ESUs. NMFS received very little comment or response on that

issue. However, because NMFS now proposes to limit the application of

section 9(a) prohibitions for several additional programs, NMFS is

issuing a revised proposal for them in order to have the benefit of

public comment before enacting final protective regulations.

NMFS concludes at this time that the take prohibitions generally

applicable for endangered species are necessary and advisable for

conservation of these threatened steelhead ESUs, but believes that take

of the SRB, CCC, SCCC, LCR, CVC, MCR and UWR steelhead need not be

prohibited when it results from a specified subset of activities

described here. These are activities that are conducted in a way that

contributes to conserving the listed steelhead, or are governed by a

program that limits impacts on listed steelhead to an extent that makes

added protection through Federal regulation not necessary and advisable

for conservation of an ESU. Therefore, NMFS now proposes to apply ESA

section 9 prohibitions to the seven threatened steelhead ESUs, but not

to apply the take prohibitions to the 13 programs described here 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 permit.

Working with state and local jurisdictions and other resource

managers, NMFS has identified several programs for which it is not

necessary and advisable to impose take prohibitions, because they

contribute to conserving the ESU or are governed by a program that

adequately limits impacts on listed salmonids. Under specified

conditions and in appropriate geographic areas, these include: (1)

activities conducted in accord with ESA incidental take authorization

through ESA sections 7 or 10; (2) ongoing scientific research

activities, for a period of 6 months; (3) emergency actions related to

injured, stranded, or dead salmonids; (4) fishery management

activities; (5) hatchery and genetic management program activities; (6)

activities in compliance with joint tribal/state plans developed within

United States 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) road maintenance activities in Oregon; (11) certain park

maintenance activities in the City of Portland, Oregon; (12) certain

development activities within urban areas; and (13) forest management

activities within the State of Washington. Following is a summary of

each of those programs, or potential limits on the take prohibitions.

Some limits apply within all seven ESUs, and some to a subset thereof.

NMFS emphasizes that these limits are not prescriptive regulations.

The fact of not being within a limit would not mean that a particular

action necessarily violates the ESA or this regulation. The limits

describe circumstances in which an entity or actor can be certain it is

not at risk of violating the take prohibition or of consequent

enforcement actions, because the take prohibition would not apply to

programs within those limits.

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.

Of course, to the extent that actions subject to section 7 consultation

are consistent with a circumstance for which NMFS has limited the take

prohibitions, the consultation will be greatly simplified because of

the analysis earlier done with respect to that circumstance.

NMFS wishes to continue to work collaboratively with all affected

governmental entities to recognize existing management programs that

conserve and meet the biological requirements of salmonids, and to

strengthen other programs toward conservation of listed salmonids. For

[[Page 73481]]

programs that meet those needs, NMFS can provide ESA coverage through

4(d) rules, section 10 research and enhancement permits or incidental

take permits, or through section 7 consultations with Federal agencies.

A 4(d) rule may be amended to add new limits on the take prohibitions,

or to amend or delete limits as circumstances warrant. For example,

California has been working on revisions to its Forest Practice Rules

(CFPRs) in order to improve the conservation of salmonids.

Concurrent with this proposed rule, NMFS proposes a limit on the

take 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 threatened salmonid

ESUs. NMFS will issue a similar ESA 4(d) rule for seven other

threatened salmonid ESUs and a proposed limit on the take prohibitions

for actions in accord with any tribal resource management plan that the

Secretary has determined will not appreciably reduce the likelihood and

survival and recovery of threatened ESUs. Because this proposal and the

ESA 4(d) rule for seven other threatened salmonid ESUs are similar,

commenters wishing to comment on both need not submit separate comments

but may indicate that NMFS should consider their comments as applying

to both proposals.

Electronic Access

The Oregon Aquatic Restoration Guidelines is accessible via the

Internet at www.oregon-plan.org/hab_guide. The Washington Fish Passage

Design at Road Culverts is accessible via the Internet at

www.wa.gov:80/wdfw/hab/engineer/cm/culvertm.htm. To the extent possible

NMFS will post other documents referenced in these rules on its

Northwest region's website at www.nwr.noaa.gov.

Take Guidance

On July 1, 1994, (59 FR 34272) NMFS and the U.S. Fish and Wildlife

Service published a policy committing the Services to identify, to the

maximum extent practicable at the time a species is listed, those

activities that would or would not constitute a violation of section 9

of the ESA. The intent of this policy is to increase public awareness

of the effect of a listing on proposed and on-going activities within

the species' range.

As a matter of law, impacts on listed salmonids due to actions in

compliance with a permit issued by NMFS pursuant to section 10 of the

ESA are not violations of this rule. Section 10 permits may be issued

for research activities, enhancement of the species' survival, or to

authorize incidental take occurring in the course of an otherwise

lawful activity. Likewise federally-funded or approved activities for

which section 7 consultations have been completed for listed salmonids,

and which are conducted in accord with all reasonable and prudent

measures, terms, and conditions provided by NMFS in a biological

opinion and accompanying incidental take statement pursuant to section

7 of the ESA will not constitute violations of this rule. NMFS consults

on a broad range of activities conducted, funded or authorized by

Federal agencies, including fisheries harvest, hatchery operations,

silviculture, grazing, mining, road construction, dam construction and

operation, discharge of fill material, stream channelization or

diversion.

With respect to other activities:

1. Based on available information, NMFS believes the following

activities are very likely to injure or kill salmonids, and result in a

violation of this rule unless within a limit on the take prohibitions

provided in this rule. These are the categories of activity upon which

NMFS enforcement resources are likely to concentrate.

A. Except as provided in this rule, collecting, handling, or

harassing listed salmonids, including illegal harvest activities.

B. Diverting water through an unscreened or inadequately screened

diversion at times when juvenile salmonids are present.

C. Physical disturbance or blockage of the streambed where spawners

or redds are present concurrent with the disturbance. The disturbance

could be mechanical disruption from creating push-up dams, gravel

removal, mining, or other work within a stream channel, trampling or

smothering of redds by livestock in the streambed, driving vehicles or

equipment across or down the streambed, and similar physical

disruptions.

D. Discharges or dumping of toxic chemicals or other pollutants

(e.g., sewage, oil, gasoline) into waters or riparian areas supporting

the listed salmonids, particularly when done outside of a valid permit

for the discharge.

E. Blocking fish passage through fills, dams, or impassable

culverts.

F. Interstate and foreign commerce of listed salmonids and import/

export of listed salmonids without an ESA permit, unless the fish were

harvested pursuant to this rule.

2. Based upon available information, NMFS believes that the

category of activities which may injure or kill listed salmonids and

result in a violation of this rule (unless within an ``exception''

provided in the rule) includes, but is not limited to:

A. Water withdrawals that impact spawning or rearing habitat.

B. Diversion or discharge of flows that results in excessive, or

excessive fluctuation of, stream temperatures.

C. Aside from the habitat restoration activities to which this rule

does not apply take prohibitions, destruction or alteration of salmonid

habitat, such as through removal of large woody debris, ``sinker

logs,'' riparian canopy or other riparian functional elements;

dredging; discharge of fill material; or through alteration of surface

or ground water flow by draining, ditching, gating, diverting,

blocking, or altering stream or tidal channels (including side channels

wetted only during high flows and connected ponds).

D. Land-use activities that adversely affect salmonid habitat

(e.g., logging, grazing, farming, urban development, or road

construction in riparian areas) (see, e.g., 64 FR 60727, November 8,

1999, definition of ``harm'' contained in the ESA).

E. Physical disturbance or blockage of the streambed in places

where spawning gravels are present.

F. Violation of Federal or state Clean Water Act (CWA) discharge

permits through actions that actually impact water quality, and thus

may harm listed salmonids. Likelihood of harm is increased where the

receiving waters are not currently meeting water quality standards for

one or more components of the discharge.

G. Pesticide and herbicide applications that adversely affect the

biological requirements of the species.

H. Introduction of non-native species likely to prey on listed

salmonids or displace them from their habitat.

I. Altering habitat of listed salmonids in a way that promotes the

development of predator populations or makes listed salmonids more

susceptible to predation.

Enforcement activity may be initiated regarding these or any other

activities that harm protected salmonids. NMFS' clear preference,

however, is for persons or entities who believe their activity presents

significant risk given the above guidance to immediately modify that

activity to avoid take and actively pursue an incidental take statement

or permit through negotiations with NMFS, or shape those activities to

come within one of the limits on the take prohibitions described in

this proposed rule. Numerous local watershed councils, the Lower

Columbia Fish

[[Page 73482]]

Recovery Board, the Willamette Restoration Initiative, and many local

and regional governmental efforts are already actively working to solve

habitat problems that limit salmonid health and productivity. An entity

that is moving forward in coordination with NMFS to promptly implement

credible and reliable conservation measures will gain a good

understanding of any actions that may be creating an emergency

situation for listed fish or otherwise demand enforcement action. For

example, if water availability is a limiting factor and local water

users and the state are working toward solutions with NMFS through any

of a variety of mechanisms (such as conservation, supplementing

instream flows, development of an ESA section 10 habitat conservation

plan, etc.), the users will quickly gain a pretty clear picture of any

immediate adjustments that must be made in order not to create a high

risk of harming salmonid eggs, juveniles or adults.

3. There is also a category of activities which, while individually

are unlikely to injure or kill listed salmonids, may collectively cause

significant detrimental impact on salmonids through water quality

changes; climate change that affects ocean conditions; or cumulative

pollution due to storm runoff carrying lawn fertilizers, pesticides, or

road and driveway pollutants. Therefore, it is important that

individuals alter their daily behaviors to reduce these impacts as much

as possible, and for governmental entities to seek programmatic

incentives, public education, regulatory changes, or other approaches

to accomplish that reduction. These activities include, but are not

limited to:

A. Discharges to streams that are not listed under section 303(d)

of the CWA as water quality limited, when the discharge is in full

compliance with current National Pollutant Discharge Elimination System

permits.

B. Individual decisions about energy consumption for heating,

travel, and other purposes.

C. Individual maintenance of residences or gardens.

These lists are not exhaustive. They are intended to provide some

examples of the types of activities that might or might not be pursued

by NMFS as constituting a take of listed salmonids under the ESA and

its regulations. Questions regarding whether specific activities

constitute a violation of this rule, and general inquiries regarding

prohibitions and permits, should be directed to NMFS (see ADDRESSES).

Aids for Understanding the Limits on the Take Prohibitions

Issue 1: 50 CFR 222.307(c)(2)

Included here are several references to 50 CFR 222.307(c)(2) (see

64 FR 14051, March 23, 1999, final rule consolidating NMFS' ESA

regulations), which are criteria for issuance of an incidental take

permit. For convenience of those commenting on this proposed rule, the

criteria listed in 50 CFR 222.307(c) are:

(1) The taking will be incidental; (2) The applicant will, to the

maximum extent practicable, monitor, minimize and mitigate the impacts

of such taking; (3) The taking will not appreciably reduce the

likelihood of the survival and recovery of the species in the wild; (4)

The applicant has amended the conservation plan to include any measures

(not originally proposed by the applicant) that the Assistant

Administrator determines are necessary or appropriate; and (5) There

are adequate assurances that the conservation plan will be funded and

implemented, including any measures required by the Assistant

Administrator.

Issue 2: Population and Habitat Concepts

This proposed rule references scientific concepts that NMFS

proposes to use in determining whether particular programs need not

fall within the scope of the section 9 take prohibitions. One of these

concepts allows for identifying populations that may warrant individual

management within established ESUs on some issues. The second involves

identifying relevant biological parameters to evaluate the status of

these populations and identifying ``critical thresholds'' and ``viable

thresholds.'' NMFS is developing a scientific and policy paper entitled

``Viable Salmonid Populations'' (NMFS, December 1999) that addresses

the biological concepts surrounding viable salmonid populations in more

detail, and invites comment on that draft (see ADDRESSEES). Once fully

developed (including public and peer review), this paper will provide

additional guidance in evaluating programs for eligibility under this

4(d) rule.

A third concept describes the freshwater habitat biological

requirements of salmonids in terms of whether habitat is functioning

properly.

Identifying Populations within ESUs

NMFS proposes to define populations following Ricker's (1972)

definition of ``stock'': a population is a group of fish of the same

species spawning in a particular lake or stream (or portion thereof) at

a particular season which to a substantial degree do not interbreed

with fish from any other group spawning in a different place or in the

same place at a different season. This definition is widely accepted

and applied in the field of fishery management. An independent

population is an aggregation of one or more local breeding units that

are closely linked by exchange of individuals among themselves, but are

sufficiently isolated from other independent populations that exchanges

of individuals among populations do not appreciably affect the

population dynamics or extinction risk of the populations over a 100-

year time frame. Such populations will generally be smaller than the

whole ESU, and will generally inhabit geographic ranges on the scale of

whole river basins or major sub-basins that are relatively isolated

from outside migration. Using this definition, it is biologically

meaningful to evaluate and discuss the extinction risk of one

population independently of other populations within the same ESU.

Several types of information may be used to identify independent

salmonid populations within existing ESUs, including (1) geographic

indicators; (2) estimates of adult dispersal; (3) abundance

correlations; (4) habitat characteristics; (5) genetic markers; and (6)

quantitative traits. States and other groups involved in salmonid

management have defined groups of fish for management purposes based on

some or all of this information, and many of the definitions already

used by managers are similar to the population definition proposed

above. Further, while the types of information identified here may be

useful in defining independent populations within ESUs, other methods

may exist for identifying biologically meaningful population units

consistent with the adopted definitions. Therefore, NMFS will evaluate

proposed population boundaries on a case-by-case basis to determine if

such boundaries are biologically supportable and consistent with the

population definition in this rule.

NMFS believes it important to identify population units within

established ESUs for several reasons. Identifying and assessing impacts

on such units will enable greater consideration of the important

biological diversity contained within each ESU, a factor considered in

NMFS' ESU policy (Waples, 1991). Further, assessing impacts on a

population level is typically a more practical undertaking given the

scale and complexity of ESUs. Finally, assessing impacts on a

[[Page 73483]]

population level will help ensure consistent treatment of listed

salmonids across a diverse geographic and jurisdictional range.

Assessing Population Status

NMFS proposes to evaluate population status through four primary

biological parameters: (1) abundance; (2) productivity; (3) population

substructure; and (4) genetic diversity. A discussion of the relevance

of these parameters to salmonid population status may be found in a

variety of scientific documents (e.g., Nehlsen et al., 1991; Burgman et

al., 1993; Huntington et al., 1996; Caughley and Gunn, 1996; Myers et

al., 1998).

Population abundance is important to evaluate due to potential

impacts associated with genetic and demographic risks. Genetic risks

associated with low population size include inbreeding depression and

loss of genetic diversity. Demographic risks associated with low

population size include random effects associated with stochastic

environmental events. Population size may be assessed and estimated

from dam and weir counts, redd counts, spawner surveys, and other

methods. Viable abundance levels may be determined, based on historic

abundance levels or habitat capacity for the population.

Population productivity may be thought of as the population's

ability to increase or maintain its abundance. It is important to

assess productivity since negative trends in productivity over

sustained periods may lead to genetic and demographic impacts

associated with small population sizes. However, trends in other

parameters such as survival between life stages, age structure, and

fecundity may also be useful in assessing productivity. In general,

viable population trends should be positive unless the population is

already at or above viable abundance levels. In that case, neutral or

negative population trends may be acceptable so long as such declines

will not lead the population to decline below viable abundance levels

in the foreseeable future.

Population structure reflects the number, size and distribution of

remaining habitat patches and the condition of migration corridors that

provide linkages among these habitat types. Population structure

affects evolutionary processes and may impact the ability of

populations to respond to environmental changes or stochastic events.

Habitat deficiencies, such as loss of migration corridors between

habitat types, can lead to a high risk of extinction and may not become

readily apparent through evaluating population sizes or productivity.

Determining whether viable population structure exists may require

comparison of existing and historic habitat conditions.

Population diversity is important because variation among

populations is likely to buffer them against short term environmental

change and stochastic events. Population diversity may be assessed by

examining life history traits such as age, and run and spawn timing

distributions. Further, more direct analysis of genetic diversity

through DNA analysis may provide an indication of diversity. Viable

population diversity will likely be determined through comparisons to

historic information or comparisons to other populations existing in

relatively undisturbed conditions. Ultimately, population diversity

must be sufficient to buffer the population against normal

environmental variation.

Establishing Population Thresholds

In applying the concepts discussed here to harvest and artificial

propagation actions, NMFS relies on two functional thresholds of

population status: (1) Critical population threshold, and (2) viable

population threshold. The critical population threshold refers to a

minimal functional level below which a population's risk of extinction

increases exponentially in response to any additional genetic or

demographic risks.

The viable population threshold refers to a condition where the

population is self sustaining, and not at risk of becoming endangered

in the foreseeable future. This threshold reflects the desired

condition of individual populations and of their contribution to

recovery of the ESU as a whole. Proposed actions must not preclude

populations from attaining this condition.

Evaluating Habitat Conditions

This proposed rule restricts application of the take prohibitions

when land and water management activities are conducted in a way that

will help attain or protect properly functioning habitat. Properly

functioning habitat conditions create and sustain the physical and

biological features that are essential to conservation of the species,

whether important for spawning, breeding, rearing, feeding, migration,

sheltering, or other functions. Such features include water quantity;

water quality attributes such as temperature, pH, oxygen content, etc;

suitability of substrate for spawning; freedom from passage

impediments; and availability of pools and other shelter. These

features are not static; the concept of proper function recognizes that

natural patterns of habitat disturbance, such as through floods,

landslides and wildfires, will continue. Properly functioning habitat

conditions are conditions that sustain a watershed's natural habitat-

affecting processes (bedload transport, riparian community succession,

precipitation runoff patterns, channel migration, etc.) over the full

range of environmental variation, and that support salmonid

productivity at a viable population level. Specific criteria associated

with achieving these conditions are listed with each habitat-related

limit on take prohibitions.

Issue 3: Direct and Incidental Take

Section 4(d) of the ESA requires that such regulations be adopted

as are ``necessary and advisable to provide for the conservation of''

the listed species. In discussing the limits on the take prohibitions,

NMFS does not generally distinguish ``incidental'' from ``direct'' take

because that distinction is not required or helpful under section 4(d).

The biological impact of take on the ESU is the same, whether a

particular number of listed fish are lost as a result of incidental

impacts or directed impacts. Hence the descriptions below of harvest

and artificial propagation programs for which NMFS does not find it

necessary and advisable to impose take prohibitions do not, as a

general rule, make that distinction. Rather, those descriptions and

criteria focus on the impacts of all take associated with a particular

activity of the biological status of the listed ESU. (The distinction

is retained in the discussion of scientific research targeted on listed

fish, because the limit on take prohibitions applies in that situation

only to research by agency personnel or agency contractors.)

Issue 4: Applicability to Specific ESUs

In the regulatory language in this proposed rule, the limit on

applicability of the take prohibitions to a given ESU is accomplished

through citation to the CFR enumeration of threatened marine and

anadromous species, 50 CFR 223.102. For the convenience of readers of

this document, 50 CFR 223.102 refers to 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

[[Page 73484]]

(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

Issue 5: Regular Evaluation of Limits on the Take Prohibitions

In determining that it is not necessary and advisable to impose

take prohibitions on certain programs or activities described here,

NMFS is mindful that new information may require a reevaluation of that

conclusion at any time. For any of the limits on the take prohibitions

described, NMFS will evaluate on a regular basis the effectiveness of

the program in protecting and achieving a level salmonid productivity

and/or of habitat function consistent with conservation of the listed

salmonids. If it is not, NMFS will identify ways in which the program

needs to be altered or strengthened. For habitat-related limits on the

take prohibitions, changes may be required if the program is not

achieving desired habitat functions, or where even with the habitat

characteristics and functions originally targeted, habitat is not

supporting population productivity levels needed to conserve the ESU.

If the responsible agency does not make changes to respond

adequately to the new information, NMFS will publish notification in

the Federal Register announcing its intention to impose take

prohibitions on activities associated with that program. Such an

announcement will provide for a comment period of not less than 30

days, after which NMFS will make a final determination whether to

extend all ESA section 9 take prohibitions to the activities.

Issue 6: Coordination with United States Fish and Wildlife Service

(FWS)

By its terms, this rule applies only to listed salmonids under

NMFS' jurisdiction. However, as it evaluates any program against the

criteria in this rule to determine whether the program warrants a

limitation on take prohibitions, NMFS will coordinate closely with FWS

regional staffs.

Permit/ESA Limit on the Take Prohibitions

This limit on the ESA section 9 take prohibitions recognizes that

those holding permits under section 10 of the ESA or coming within

other exceptions under the ESA are free of the take prohibition so long

as they are acting in accord with the permit or applicable law.

Examples of activities for which a section 10 permit may be issued are

research or land management activities associated with a habitat

conservation plan.

Continuity of Scientific Research

This proposed rule would not restrict ongoing scientific research

activities affecting listed CCC, SCCC, SRB, LCR, CV, UWR and MCR

steelhead ESUs for up to 6 months after its effective date, provided

that an application for a permit for scientific purposes or to enhance

the conservation or survival of the species is received by the

Assistant Administrator for Fisheries (AA), NOAA, within 30 days from

after the effective date of a final rule. The section 9 take

prohibitions would extend to these activities upon the AA's rejection

of the application as insufficient, upon issuance or denial of a

permit, or 6 months after the effective date of the final rule,

whichever occurs earliest. It is in the interests of salmonid

conservation not to disrupt ongoing research, some of which are of long

term duration. This limit on the take prohibitions assures there will

be no unnecessary disruption of those activities, yet provides NMFS

with tools to halt the activity through denial if it is judged to have

unacceptable impacts on a listed ESU. Therefore, NMFS does not find

imposition of additional Federal protections in the form of take

prohibitions necessary and advisable.

Take Prohibition Limit for Rescue and Salvage Actions

This limit on the take prohibitions relieves certain agency and

official personnel or their designees from the take prohibition when

they are acting to aid an injured or stranded salmonid, or salvage a

dead individual for scientific study. Each agency acting under this

``exception'' is to report the numbers of fish handled and their

status, on an annual basis. This limit on the take prohibitions will

result in conservation of the listed species by preserving life or

furthering our understanding of the species. By the very nature of the

circumstances that trigger these actions (the listed fish is injured or

stranded and in need of immediate help, or is already dead and may

benefit the species if available for scientific study), NMFS concludes

that imposition of Federal protections through a take prohibition is

not necessary and advisable.

Fishery Management Limit on the Take Prohibitions

NMFS believes that in many cases, recreational fisheries for non-

listed steelhead and resident game fish species will have acceptably

small impacts on listed steelhead and will allow for the conservation

of those listed salmonids, as long as state recreational fishery

management programs are specifically tailored to meet certain criteria.

This proposed rule provides a mechanism whereby NMFS may limit

application of the take prohibitions to non-listed (hatchery) steelhead

and resident species fisheries when a state develops an adequate

Fishery Management and Evaluation Plan (FMEP). If NMFS finds that the

FMEP contains specific management measures that adequately limits take

of listed steelhead and otherwise protects the ESU, NMFS may enter into

a Memorandum of Agreement (MOA) with the state for implementation of

the plan. Where an FMEP and MOA that meet the following criteria are in

place, NMFS concludes that problems associated with fishery impacts on

listed steelhead will be addressed and that additional Federal

protections through imposition of take prohibitions on harvest

activities is not necessary and advisable. Therefore this rule proposes

not to apply take prohibitions to actions in accord with FMEPs being

implemented through an MOA. This proposed limit on the take

prohibitions thus encourages states to move quickly to make needed

changes in fishery management so that listed ESUs benefit from those

improvements and protections as soon as possible.

Process for Developing FMEPs

Prior to determining that any state's new or amended FMEP is

sufficient to eliminate the need for added Federal protection, NMFS

must find that the plan is effective in addressing the criteria here.

If NMFS finds that an FMEP meets those criteria, it will then enter

into an MOA with the state which will set forth the terms of the FMEP's

implementation and the duties of the parties pursuant to the FMEP. A

state must confer annually with NMFS on its fishing regulation changes

to ensure consistency with an approved FMEP.

NMFS recognizes the importance of providing meaningful

opportunities for public review of FMEPs. Therefore, prior to approving

new or amended FMEPs, NMFS will make such plans

[[Page 73485]]

available for public review and comment for a period of not less than

30 days. Notice of the availability of these plans will be published in

the Federal Register.

Criteria for Evaluating FMEPs

NMFS will approve an FMEP only if it meets the following criteria,

which are designed to minimize and adequately limit take and promote

the conservation of all life stages of listed steelhead. The FMEP must:

(1) Provide a clear statement of the scope of the proposed action.

The statement must include a description of the proposed action, a

description of the area of impact, a statement of the management

objectives and performance indicators for the proposed action, and

anticipated effects of the proposed action on management objectives

(including recovery goals) for affected populations. This information

will provide objectives and indicators by which to assess management

strategies, design monitoring and evaluation programs, measure

management performance, and coordinate with other resource management

actions in the ESU.

(2) Identify populations within affected ESUs, taking into account

(A) spatial and temporal distribution; (B) genetic and phenotypic

diversity; and (C) other appropriate identifiable unique biological and

life history traits, as discussed earlier under Issue 2. Where

available data or technology are inadequate to determine the effects of

the proposed action on individual populations, plans may identify

management units consisting of two or more population units, when the

use of such management units is consistent with survival and recovery

of the species. In identifying management units, the plan shall

describe the reasons for using such units in lieu of population units

and describe how such units are defined such that they are consistent

with the principles discussed under Issue 2.

(3) Describe the functional status of each ESU or of any population

or management unit intended to be managed separately within the ESU,

and determine and apply two thresholds, based on natural production:

(A) one that describes the level of abundance and function at which the

population is considered viable; and (B) a critical threshold, where

because of very low population size and/or function, any additional

demographic and genetic risks increases the extinction risk

exponentially.

Thresholds may be described differently depending on the parameter

for which thresholds are being established. Abundance and productivity

thresholds may consist of a single value or a range of values whereas

spatial and temporal distribution and genetic diversity thresholds may

consist of multiple values, or describe a pattern or distribution of

values. For example, a hypothetical abundance threshold might be

defined either as 5,000 spawners per year or a range of 4,000-6,000

spawners per year, whereas a temporal distribution threshold might be

defined as a pattern of spawning timing occurring from mid-June through

August with random variation about that time, and with approximately 30

percent of the spawners entering in June, 50 percent in July and the

remaining 20 percent throughout August.

Proposed management actions must recognize the significant

differences in risk associated with these two thresholds and respond

accordingly in order to minimize the risks to the long-term

sustainability of the population(s). Harvest actions impacting

populations that are functioning at or above the viable threshold must

be designed to maintain the population or management unit at or above

that level. For populations shown with a high degree of confidence to

be above critical levels but not yet viable, harvest management must

not appreciably slow the population's achievement of viable function.

Harvest actions impacting populations that are functioning at or below

critical threshold must not appreciably increase the genetic and

demographic risks facing the population and must be designed to permit

the population's achievement of viable function, unless the plan

demonstrates that such an action will not appreciably reduce the

likelihood of survival and recovery of the ESU as a whole, despite any

increased risks to the individual population.

Thresholds represent a band of functions reflecting the reality

that populations fluctuate from year to year because of natural events

and variability. The biological analysis required to arrive at viable

and critical thresholds will be more or less intensive depending on

data availability and changes. After initial management strategies are

developed, annual abundance data will be an extremely important

indicator of what adjustments need be made. Then, as monitoring adds to

and refines the data regarding functioning of other parameters, these

must also be reviewed on a regular basis so that if significant changes

have occurred in run timing, phenotypic diversity or other

characteristics, the harvest strategy, (and if appropriate, other

strategies) will be adjusted to respond to those changes.

(4) Set escapement objectives or maximum exploitation rates for

each management unit or population based on its status, and a harvest

program that assures not exceeding those rates or objectives. While the

term ``exploitation'' may suggest a purposeful intent to use the

resource, it is used here as a term of art in fishery management

indicating that all fishery-related mortality across all fisheries must

be accounted for. In total, the combined exploitation across all

fisheries and management units must not appreciably reduce the

likelihood of recovery of the ESU. Management of fisheries where

artificially propagated fish predominate must not compromise the

management objectives for commingled naturally spawned populations

(those supported primarily by natural production) by reducing the

likelihood that those populations will maintain or attain viable

functional status, or by appreciably slowing attainment of viable

function.

All unlisted hatchery-produced steelhead that are intended to be

targeted for recreational harvest must be clearly, externally marked so

anglers may identify the origin of steelhead. This differential marking

will enable anglers to release naturally spawned fish, or fish intended

for recovery. Only externally marked fish of hatchery origin may be

retained in fisheries and all unmarked steelhead must be released

unharmed back to the water. Research conducted in the Northwest United

States and British Columbia indicates that adult steelhead can be

hooked, landed, and released using recreational fishing equipment with

an average mortality rate of less than 5 percent (Hooton, 1987). For

example, in the Snake River, about 50 percent of the adult steelhead

that return are caught in recreational fisheries. Since 50 percent of

the listed population is subjected to a 5- percent mortality, the

entire listed steelhead population is estimated to suffer about a 2.5-

percent mortality due to the recreational fishery. Acceptable mortality

rates may vary for different ESUs given differences in species status

or differences in the overall FMEP.

These measures will allow recreational anglers to fish for, and

harvest, non-listed, hatchery-produced steelhead, while providing

protection for listed fish. Any fishery where the number of listed fish

may exceed the number of unlisted fish in a given water must be

strictly controlled.

[[Page 73486]]

Steelhead fishing seasons should be open only in areas, and during

time periods, where and when non-listed, hatchery-produced fish are

expected to occur. Hatchery-produced steelhead smolts are released from

hatcheries and acclimation ponds or directly trucked to release points.

Most adults return to areas near the point at which they were released.

In many cases, hatchery programs have been adjusted to return non-

listed hatchery fish to river sections where they are accessible to

anglers and where they do not interfere with listed fish. Further

refinement of hatchery releases will occur through hatchery plans and

adaptive management based on evaluations of hatchery programs,

fisheries and regulation strategies.

Sanctuaries must be provided for listed steelhead, in which fishing

is not allowed and no hatchery-produced, non-listed steelhead are

present. Hatchery-produced steelhead smolts are typically released in

main stems of rivers, where fishing for returning non-listed hatchery

fish is generally permitted. Important tributaries and headwater areas

should be reserved as sanctuaries to provide adequate spawning and

rearing areas for listed species. Under some circumstances, it may be

an appropriate conservation strategy to utilize limited fisheries to

selectively remove stray hatchery fish from sanctuary areas to reduce

the proportion of hatchery fish that spawn naturally.

(5) Display a biologically based rationale demonstrating that the

harvest management strategy does not appreciably reduce the likelihood

of survival and recovery of the species in the wild. The effects must

be assessed over the entire period of time the proposed harvest

management strategy would affect the population, including effects

reasonably certain to occur after the proposed action ceases.

(6) Include effective monitoring and evaluation programs to assess

compliance, effectiveness, and parameter validation. At a minimum,

harvest monitoring programs must collect catch and effort data,

information on escapements, and information on biological

characteristics such as age, fecundity, size and sex data, and

migration timing. The complexity and frequency of the monitoring

program should be appropriate to the scale and likely effects of the

action. Angling effort and harvest rates may be monitored with check

stations, creel censuses, random surveys, and catch-card returns.

Spawning ground surveys can track trends in spawning success of listed

fish and proportion of hatchery-produced fish spawning naturally. Adult

fish counts at dams and weirs can provide estimated total numbers of

returns, the proportion of listed to non-listed fish, and abundance

trends. Surveys of rearing areas and downstream migrant traps can

provide estimates of production and juvenile abundance trends.

Estimates of the number of hatchery-produced steelhead and mortality of

listed fish should be monitored during the season and summarized at the

end of the season in an annual report available to NMFS and the public.

(7) Provide for evaluating monitoring data and making any needed

revisions of assumptions, management strategies, or objectives. The

FMEP must describe the conditions under which revision will be made and

the processes for accomplishing those revisions.

(8) Provide for effective enforcement and education. Coordination

among involved jurisdictions is an important element in ensuring

regulatory effectiveness and coverage.

(9) Include restrictions on resident species fisheries that

minimize and adequately limit any take of listed species, including

time, size, gear, and area restrictions; and elimination of put-and-

take fisheries in waters with listed anadromous salmonids. Recreational

fisheries for resident trout or other resident species may result in

take of juvenile and adult listed steelhead, but selective or catch-

and-release fisheries for resident species, with appropriate

restrictions on season, minimum length limits and fishing tackle may be

conducted with little or no measurable impact on listed species.

Season dates must be adjusted to avoid fishing on concentrations of

adult or juvenile listed steelhead. Steelhead smolts generally leave

rearing streams during spring freshets between March and June, with

peak outmigration in April and May. Delaying the opening of fishing

season until late May or June will provide protection for this life

stage. If monitoring of fisheries detects other times or areas where

listed juvenile steelhead are vulnerable, seasons may need to be closed

or shortened.

Minimum size limits for rainbow trout are necessary to protect

steelhead parr and smolts. Most listed steelhead smolts are less than 8

inches (3.1 cm) in length in northern areas (i.e., Idaho, Washington,

and Oregon) when they begin their migration. In some areas of

California, steelhead smolts often exceed 10 inches (3.9 cm) in length.

Fishing regulations should require rainbow trout retained by anglers to

be larger than the maximum size attained by wild steelhead smolts

rearing in those waters, to protect listed juvenile steelhead. In some

cases, minimum size limits of up to 14 inches (5.5 cm) have been

determined to be locally appropriate to avoid any chance of retention

of juvenile listed steelhead.

Regulations must not allow retention of listed steelhead. A

substantial amount of research indicates recreational fisheries for

resident fish species can be conducted so as to limit take of listed

steelhead. A review of over 70 studies of hooking mortality on trout

indicates that trout caught on artificial flies and lures generally

suffer less than 5 percent post-release mortality while trout caught on

bait average 30 to 50 percent (Mongillo, 1984)(steelhead post-release

mortality rates may be higher under warm water conditions). Many of

these studies used trout that are similar in size to juvenile steelhead

and results should be directly applicable. Therefore, use of bait in

angling should be prohibited in waters where take of listed steelhead

may occur. Barbless hooks should be required when necessary to minimize

potential impacts to listed steelhead. Locally appropriate regulations

that prohibit any retention of listed steelhead should likewise be

developed.

Put-and-take fisheries for hatchery-produced resident trout should

be eliminated in steelhead-producing streams since such fisheries can

concentrate anglers and increase the harvest or post-release mortality

of listed juvenile steelhead. In some cases, there may be cause for

concern that hatchery-produced fish may compete with or prey upon

listed juvenile steelhead. Release of hatchery-produced resident trout

in streams that support listed steelhead must be severely curtailed;

and

(10) Be consistent with plans and conditions set within any Federal

court proceeding with continuing jurisdiction over tribal harvest

allocations.

Artificial Propagation Limit on the Take Prohibitions

NMFS believes that in some cases it may not be necessary and

advisable to prohibit take with respect to artificial production

programs, including use of listed steelhead as hatchery broodstock,

under specific circumstances. This limit on the take prohibitions

proposes a mechanism whereby state or Federal hatchery managers may

obtain assurance that a hatchery and genetic management program is

adequate for protection and conservation of listed steelhead. The state

or Federal agency would develop a Hatchery and Genetic Management Plan

(HGMP) containing

[[Page 73487]]

specific management measures that will minimize and adequately limit

impacts on listed steelhead and promote the conservation of the listed

ESU, and then enter into an MOA with NMFS to ensure adequate

implementation of the HGMP. NMFS believes that with an adequate HGMP

and an MOA in place, additional Federal protection through imposition

of take prohibitions on artificial propagation activities would not be

necessary and advisable for conservation of the listed steelhead.

Process for Developing Hatchery and Genetic Management Plans

NMFS will evaluate the effectiveness of state or Federal HGMPs in

addressing the following criteria. If the HGMP does so adequately, NMFS

will then enter into an MOA with the state or complete an ESA section 7

consultation with a Federal entity, which will set forth the duties of

the parties pursuant to the plan.

This proposed rule provides a mechanism whereby NMFS may limit

application of take prohibitions that would otherwise apply to

broodstock collection and other hatchery operations in compliance with

an approved HGMP.

NMFS recognizes the importance of providing meaningful

opportunities for public review of draft HGMPs. Therefore, prior to

approving new or amended HGMPs, NMFS will make such plans available for

public review and comment for a period of not less than 30 days. Notice

of the availability of such draft plans will be published in the

Federal Register.

Criteria for Evaluating Hatchery and Genetic Management Plans

NMFS will evaluate salmonid HGMPs on the basis of criteria that are

designed to minimize and adequately limit take and promote the

conservation of the listed species. The criteria by which draft HGMPs

will be evaluated include the following:

(1) Goals and Objectives for the Propagation Program. Each hatchery

program must have clearly stated goals, performance objectives, and

performance indicators that indicate the purpose of the program, its

intended results, and measurements of its performance in meeting those

results. Goals should address whether the program is intended to meet

conservation objectives, contributing to the ultimate sustainability of

natural spawning populations, and/or intended to augment tribal,

recreational, or commercial fisheries. Objectives should enumerate the

results desired from the program against which its success or failure

can be monitored.

(2) Maintenance of Viable Populations. Listed salmonids may be

intentionally used for broodstock purposes only if (A) the donor

population is currently at or above viable thresholds and the

collection will not reduce the likelihood that the population remains

viable; (B) the donor population is not currently viable but the sole

objective of the current collection program is to enhance the

propagation or survival of the listed ESU; or (C) the donor population

is shown with a high degree of confidence to be above critical

threshold although not yet viable, and the collection will not

appreciably slow the attainment of viable population status.

(3) Prioritization of Broodstock Collection Programs. Broodstock

collection programs of listed salmonids shall be prioritized on the

following basis depending on health, abundance and trends in the donor

population: (A) for captive brood or supplementation of the local

indigenous population; (B) for supplementation and restoration of

similar, at-risk, natural populations within the same ESU, or for

reintroduction to underseeded habitat; and (C) production to sustain

tribal and recreational fisheries consistent with recovery and

maintenance of naturally spawned salmonid populations. The primary

purpose of broodstock collection programs must first be to reestablish

local indigenous salmonid populations and to supplement and restore

existing populations. After the species' conservation needs are met,

and when consistent with survival and recovery of the species,

broodstock collection programs may be authorized by NMFS for secondary

purposes, such as to sustain tribal, recreational and commercial

fisheries.

(4) Operational Protocols. An HGMP must include comprehensive

protocols pertaining to fish health; broodstock collection; broodstock

mating; incubation, rearing and release of juveniles; disposition of

hatchery adults; and catastrophic risk management.

(5) Genetic and Ecological Effects. An HGMP will be evaluated based

on best available information to assure the program avoids or minimizes

any deleterious genetic or ecological effects on natural populations,

including disease transfer, competition, predation, and genetic

introgression caused by straying of hatchery fish.

(6) Adequacy of Existing Fishery Management Programs and

Regulations. An HGMP shall describe interrelationships and

interdependencies with fisheries management. The combination of

artificial propagation programs and harvest management must be designed

to provide as many benefits and as few biological risks as possible for

the listed species. HGMPs for programs whose purpose is to sustain

fisheries must not compromise the ability of FMEPs or other management

plans to achieve management objectives for associated listed

populations.

(7) Adequacy of Hatchery Facilities. Adequate artificial

propagation facilities must exist to properly rear progeny of listed

broodstock to maintain population health, maintain population

diversity, and to avoid hatchery-influenced selection or domestication.

(8) Availability of Effective Monitoring Efforts. Adequate

monitoring and evaluation must exist to detect and evaluate the success

of the hatchery program and any risks to or impairment of recovery of

the listed ESU, including monitoring of stray rates.

(9) Consistency with Court Mandates. An HGMP must be consistent

with plans and conditions set within any Federal court proceeding with

continuing jurisdiction over tribal harvest allocations.

Take of Progeny Resulting from Hatchery/Naturally Spawned Crosses

NMFS' ``Interim Policy on Artificial Propagation of Pacific Salmon

Under the Endangered Species Act,'' (58 FR 17573, April 5, 1993)

provides guidance on the treatment of hatchery stocks in the event of a

listing. Under this policy, ``progeny of fish from listed species that

are propagated artificially are considered part of the listed species

and are protected under the ESA.'' According to the interim policy, the

progeny of such hatchery-naturally spawned crosses or naturally

spawned-naturally spawned crosses would also be listed.

NMFS believes it is desirable to incorporate enough naturally

spawned fish into the hatchery populations to ensure that their genetic

and life history characteristics do not diverge significantly from the

naturally spawned population. Prior to any intentional use of listed

fish for hatchery broodstock, an approved HGMP must be in place to

ensure that native, naturally spawned populations are conserved. With

such plans in place and where population status characteristics warrant

it, NMFS will proceed through rulemaking to delist hatchery progeny of

naturally spawned-naturally spawned or naturally spawned-hatchery

crosses. A proposed rule setting forth the scientific basis for such a

determination and providing the public with notification and an

[[Page 73488]]

opportunity to comment would be published in the Federal Register.

Limits on the Take Prohibitions for Joint Tribal/State Plans

Developed within United States v. Oregon.

Non-tribal salmonid management in the Columbia River basin is

profoundly influenced by the treaty rights of numerous Indian tribes in

the basin and must be responsive to the court proceedings interpreting

and/or defining those tribal interests. NMFS, therefore, proposes this

limit on the take prohibitions to accommodate any resource management

plan developed jointly by the States and the Tribes (joint plan) within

the continuing jurisdiction of United States v. Oregon, the on-going

Federal court proceedings to enforce and implement reserved treaty

fishing rights. Such a plan would be developed and reviewed under the

government-to-government processes of the general tribal limit

(including technical assistance from NMFS in evaluating impacts on

listed salmonids). Before the take prohibitions would be determined not

to apply to a joint plan, the Secretary must determine that

implementation and enforcement of the plan will not appreciably reduce

the likelihood of survival and recovery of the species. Before making

that determination for joint fishery management or hatchery and genetic

management plans the Secretary must solicit and consider public comment

on how any fishery management plan addresses the criteria in

Sec. 223.208(b)(4) of this proposed rule, or how any hatchery and

genetic management plan addresses the criteria in Sec. 223.208(b)(5) of

this proposed rule. The Secretary shall publish notice of any

determination regarding a joint plan, with a discussion of the

biological analysis underlying that determination, in the Federal

Register.

Limits on the Take Prohibitions for Scientific Research

In carrying out their responsibilities, state fishery management

agencies in Idaho, Washington, Oregon and California conduct or permit

a wide range of scientific research activities on various fisheries,

including monitoring and other studies on steelhead which occur in the

SR, CCC, SCCC, LCR, CVC, MCR and UWR steelhead ESUs. NMFS finds these

activities vital for improving our understanding of the status and

risks facing steelhead and other listed species of anadromous fish that

occur in overlapping habitat, and provide critical information for

assessing the effectiveness of current and future management practices.

In general, NMFS concludes such activities will help to conserve the

listed species by furthering our understanding of the species' life

history and biological requirements, and that state biologists and

cooperating agencies carefully consider the benefits and risks of

proposed research before approving or undertaking such projects. NMFS

concludes that it is not necessary or advisable to impose additional

protections on such research through imposition of Federal take

prohibitions. Therefore, in this notice, NMFS proposes not to apply

take prohibitions to scientific research activities under the following

circumstances.

Research activities that involve planned sacrifice or manipulation

of, or will necessarily result in injury to or death of, listed

steelhead come within this exception only if the state submits an

annual report listing all scientific research activities involving such

activities planned for the coming year, for NMFS' review and approval.

Such reports shall contain (1) an estimate of the total take

anticipated from such research; (2) a description of study designs,

including a justification for taking the species; (3) a description of

the techniques to be used; and (4) a point of contact. Research

involving planned sacrifice or manipulation of, or which will

necessarily result in injury to or death of listed salmonids must be

conducted by employees or contractors of the state fishery management

agency, or as part of a coordinated monitoring and research program

overseen by that agency. Any research using electrofishing gear in

waters known, or expected to contain, listed salmonids, is within this

exception only if it complies with ``Guidelines for Electrofishing

Waters Containing Salmonids Listed Under the Endangered Species Act''

(NMFS, 1998). Otherwise, electrofishing research requires a section 10

research permit from NMFS prior to commencing operations. NMFS welcomes

comment on these guidelines, which are available (see ADDRESSES),

during the comment period for this proposed rule.

The state must annually provide NMFS with the results of scientific

research activities that involve directed take of listed salmonids,

including a report of the amount of direct take resulting from the

studies and a summary of the results of such studies.

A state may conduct and may authorize non-state parties to conduct

research activities that may result in incidental take of listed

salmonids under the following conditions. The state shall submit to

NMFS annually, for its review and approval, a report listing all

scientific research activities permitted that may incidentally take

listed salmonids during the coming year. In that annual report, the

state must also report the amount of incidental take of listed

salmonids occurring in the previous year's scientific research

activities, and provide a summary of the results of such research.

Interested parties may request a copy of these annual reports from NMFS

(see ADDRESSES).

Habitat Restoration Limits on the Take Prohibitions

NMFS considers a ``habitat restoration activity'' to be an activity

whose primary purpose is to restore natural aquatic or riparian habitat

processes or conditions; it is an activity which would not be

undertaken but for its restoration purpose. NMFS does not consider

herbicide applications or artificial bank stabilization to be

restoration activity.

Certain habitat restoration activities are likely to contribute to

conserving listed salmonids without significant risks, and NMFS

concludes that it is not necessary and advisable to impose take

prohibitions on those activities when conducted in accordance with

appropriate standards and guidelines. Projects planned and carried out

based on at least a watershed-scale analysis and conservation plan,

and, where practicable, a sub-basin or basin-scale analysis and plan,

are likely to be the most beneficial. NMFS strongly encourages local

efforts to conduct watershed assessments to identify what problems are

impairing watershed function, and to plan for watershed restoration or

conservation in reliance on that assessment. Without the overview a

watershed-level approach provides, habitat efforts are likely to focus

on ``fixes'' that may prove short-lived, or even detrimental, because

the underlying processes that are causing a particular problem have not

been addressed.

This proposed rule, therefore, provides that ESA section 9(a) take

prohibitions will not apply to habitat restoration activities found to

be part of, and conducted pursuant to, a state-approved watershed

conservation plan with which NMFS concurs. The state in which the

activity occurs must determine in writing whether a watershed plan has

been formulated in accordance with NMFS-approved state watershed

conservation plan guidelines, and forward any positive finding for

NMFS' concurrence. NMFS will work with interested states in developing

guidelines that meet the criteria and standards set forth here. If NMFS

finds they meet those criteria and standards, NMFS will then certify

this

[[Page 73489]]

determination in writing to the state. Such a plan will contain

adequate safeguards such that no additional Federal protections through

imposition of take prohibitions on actions in accord with the plan, is

necessary and advisable for conservation of the listed salmonids.

While criteria and plans are being developed, this proposed rule

would not apply the take prohibitions to several habitat restoration

activities if carried out in accord with the conditions described here,

and with any required state or Federal reviews or permits. Until

watershed conservation plans formulated in accord with NMFS-approved

state watershed conservation plan guidelines are in place, but for no

longer than 2 years, ESA section 9 take prohibitions will not apply to

the following restoration activities when conducted in accord with the

listed conditions and guidance. More complex restoration activities,

such as habitat construction projects or channel alterations, require

project by project technical review at least until watershed planning

is complete.

Applicable state guidance includes the Oregon Road/Stream Crossing

Restoration Guide: Spring 1999, selected portions (cited here) of the

Oregon Aquatic Habitat Restoration and Enhancement Guide (1999); the

Washington Department of Fish and Wildlife, (WDFW) Habitat and Lands

Environmental Engineering Division's Fish Passage Design at Road

Culverts, March 3, 1999; Washington Administrative Code rules for

Hydraulic Project Approval; and Washington's Integrated Streambank

Protection Guidelines, June, 1998. Applicable state guidance for

California includes the Stream Corridor Restoration, Principles,

Processes and Practices by the Federal Interagency Stream Restoration

Working Group (October 1998) and the California Salmonid Stream Habitat

Restoration Manual, January, 1998. Under those conditions and where

consistent with any other state or Federal laws and regulations, NMFS

proposes not to apply take prohibitions to the following habitat

restoration activities:

1. Riparian zone planting or fencing. Conditions: No in-water work;

no sediment runoff to stream; native vegetation only; fence placement

consistent with standards in the Oregon Aquatic Habitat Restoration and

Enhancement Guide (1999).

2. Livestock water development off-channel. Conditions: No

modification of bed or banks; no in-water structures except minimum

necessary to provide source for off-channel watering; no sediment

runoff to stream; diversion adequately screened; diversion in accord

with state law and has no more than de minimus impacts on flows that

are critical to fish; diversion quantity shall never exceed 10 percent

of current flow at any moment, nor reduce any established instream

flows.

3. Large wood (LW) or boulder placement. Conditions: Does not apply

to LW placement associated with basal area credit in Oregon. No heavy

equipment allowed in stream; work limited to any state in-water work

season guidelines established for fish protection, or if there are

none, limited to summer low-flow season with no work from the start of

adult migration through the end of juvenile outmigration. Wood

placement projects should rely on the size of wood for stability and

may not use permanent anchoring including rebar or cabling (these would

require ESA section 7 consultation or an ESA section 10

permit)(biodegradable manila/sisal rope may be used for temporary

stabilization). Wood length should be at least two times the bankfull

stream width (1.5 times the bankfull width for wood with rootwad

attached) and meet diameter requirements and stream size and slope

requirements outlined in A Guide to Placing Large Wood in Streams,

Oregon Department of Forestry and Department of Fish and Wildlife (May,

1995). LW placement must be either associated with an intact, well-

vegetated riparian area which is not yet mature enough to provide LW;

or accompanied by a riparian revegetation project adjacent or upstream

that will provide LW when mature. Placement of boulders only where

human activity has created a bedrock stream situation not natural to

that stream system, where the stream segment would normally be expected

to have boulders, and where lack of boulder structure is a major

contributing factor to the decline of the stream fisheries in the

reach. Boulder placement projects within this exception must rely on

size of boulder for stability, not on any artificial cabling or other

devices. See applicable guidance in Oregon Aquatic Habitat Restoration

and Enhancement Guide (1999).

4. Correcting road/stream crossings, including culverts, to allow

or improve fish passage (See WDFW's Fish Passage Design at Road

Culverts, March 3, 1999; Oregon Road/Stream Crossing Restoration Guide:

Spring 1999; NMFS Southwest Region Culvert Policy (1999).

5. Repair, maintenance, upgrade or decommissioning of roads in

danger of failure. All work to be done in dry season; prevent any

sediment input into streams. In California, follow applicable guidance

in Weaver, W.E. and D.K. Hagens Handbook for Forest and Ranch Roads, A

guide for planning, designing, constructing, reconstructing,

maintaining, and closing wildland roads, June, 1994.

6. Salmonid carcass placement. Carcass placement should be

considered only where numbers of spawners are substantially below

historic levels. Follow applicable guidelines in Oregon Aquatic Habitat

Restoration and Enhancement Guide (1999), including assuring that the

proposed source of hatchery carcasses is from the same watershed or

river basin as the proposed placement location. To prevent introduction

of diseases from hatcheries, such as Bacterial Kidney Disease,

carcasses must be approved for placement by a state fisheries fish

pathologist.

These short term ``exceptions'' describe habitat restoration

activities that are likely to promote conservation of listed salmonids

with relatively small risk negative impacts. If conducted in accord

with the limitations described above, NMFS concludes it is not

necessary and advisable to provide additional Federal protections

through imposition of take prohibitions on these restoration actions.

Thus, these habitat restoration activities can proceed over the next 2

years without the need for ESA section 10 permit coverage. Before

undertaking other habitat restoration activities the project

coordinator should contact NMFS to determine whether the project can be

conducted in such a way as to avoid take. If not, NMFS will recommend

that an ESA section 10 incidental take permit be obtained before

proceeding. If the project involves action, permitting or funding by a

Federal agency, ESA coverage would occur through ESA section 7

consultation.

After a watershed conservation plan has been approved, only

activities conducted pursuant to the plan fall outside the scope of the

ESA section 9 take prohibitions. If no watershed conservation plan has

been approved by two years after publication of the final rule in the

Federal Register, then section 9 take prohibitions will apply to

individual habitat restoration activities just as to all other habitat-

affecting activities.

Criteria for Evaluating Watershed Conservation Plan Guidelines

NMFS will evaluate state watershed conservation plan guidelines

based upon the standards here, which include criteria derived from

those used for evaluating applications for incidental take permits,

found at Sec. 222.307(c) of

[[Page 73490]]

this chapter. Guidelines must result in plans that:

(1) Consider the status of the affected species and populations.

(2) Design and sequence restoration activities based upon

information obtained from an overall watershed assessment.

(3) Prioritize restoration activities based on information from

watershed assessment.

(4) Evaluate the potential severity of direct, indirect and

cumulative impacts on the species and habitat as a result of the

activities the plan would allow.

(5) Provide for effective monitoring. This criterion requires that

the effectiveness of activities designed to improve natural watershed

function will be evaluated through appropriate monitoring and that

monitoring data will be analyzed to help develop adaptive management

strategies. Successful monitoring requires identification of the

problem, identification of the appropriate solution to the problem, and

determination of the effectiveness of the solution over a period of

time in increasing productivity of the listed salmonids.

(6) Use best available technology. Since the language of part 222

of this chapter contemplates activities unrelated to habitat

restoration, it applies ``best available technology'' only to

minimizing and mitigating incidental effects. For this application,

NMFS makes the logical extension of also applying ``best available

technology'' to the restoration activities per se. Guidelines must

ensure that plans will represent the most recent developments in the

science and technology of habitat restoration, and use adaptive

management to incorporate new science and technology into plans as they

develop, and where appropriate, provide for project specific review by

disciplines such as hydrology, geomorphology, etc.

(7) Assure that any taking resulting from implementation will be

incidental.

(8) Require the state, local government, or other responsible

entity to monitor, minimize and mitigate the impacts of any such taking

to the maximum extent practicable.

(9) Will not result in long-term adverse impacts. Implementation

may cause some short-term adverse impacts, and plans must evaluate the

ability of affected ESUs to withstand those impacts. Guidelines and

plans must assure that habitat restoration activities will be

consistent with the restoration and persistence of natural habitat

forming processes.

(10) Assure that the safeguards required in watershed conservation

plans will be funded and implemented.

NMFS recognizes the importance of providing meaningful

opportunities for public review of watershed conservation plan

guidelines. Therefore, prior to certifying such guidelines, NMFS will

make the guidelines available for public review and comment for a

period of not less than 30 days. Notice of the availability of such

draft guidelines will be published in the Federal Register. Notice will

also be sent to parties expressing an interest in these guidelines.

Parties interested in receiving notification should contact NMFS (see

ADDRESSES).

Water Diversion Screening Limit on the Take Prohibitions

A widely recognized cause of mortality among anadromous fish is

operation of water diversions without adequate screening. Juveniles may

be sucked or attracted into diversion ditches where they later die from

a variety of causes, including stranding. Adult and juvenile migration

may be impaired by diversion structures, including push-up dams.

Juveniles are often injured and killed through entrainment in pumping

facilities or impingement on inadequate screens, where water pressure

and mechanical forces are often lethal.

State laws and Federal programs have long recognized these problems

in varying ways, and encouraged or required adequate screening of

diversion ditches, structures, and pumps to prevent much of the

anadromous fish loss attributable to this cause. Nonetheless, large

numbers of diversions are not adequately screened and remain a threat,

particularly to juvenile salmonids, and elimination of that source of

injury or death is vital to conservation of listed salmonids.

Therefore, this proposed rule should prompt all diverters to move

quickly to provide adequate screening or other protections for their

diversions, by not applying take prohibitions to any diversion screened

in accord with NMFS' Juvenile Fish Screening Criteria, Northwest

Region, Revised February 16, 1995, with Addendum of May 9, 1996, or in

California with NMFS' Southwest Region ``Fish Screening Criteria for

Anadromous Salmonids, January 1997'' or any subsequent revision

(available by contacting ADDRESSES). Compliance with these criteria

will address the problems associated with water diversions lacking

adequate screening. If a diversion is screened, operated and maintained

consistent with those NMFS criteria, NMFS concludes that adequate

safeguards will be in place such that no additional Federal protection

(with respect to method of diversion) through imposition of take

prohibitions is necessary and advisable for conservation of listed

salmonids. Written acknowledgment from NMFS engineering staff is needed

to establish that screens are in compliance with the above criteria.

The proposed take prohibitions would not apply to physical impacts

on listed fish due to entrainment or similar impacts of the act of

diverting so long as the diversion has been screened according to NMFS

criteria and is being properly maintained. The take prohibitions would

apply to take that may be caused by instream flow reductions associated

with operation of the water diversion facility, and impacts caused by

installation of the water diversion facility, such as dewatering/bypass

of the stream or in-water work. Such take remains subject to the

prohibitions of Sec. 223.208(a) of this proposed rule.

Routine Road Maintenance Limit on the Take Prohibitions

The Oregon Department of Transportation (ODOT) is responsible for

the extensive existing transportation infrastructure represented by the

Oregon's state highway system. ODOT maintenance and environmental staff

have worked with NMFS for more than a year toward performing routine

road maintenance activities within the constraints of the ESA and the

Clean Water Act, while carrying out the agency's fundamental mission to

provide a safe and effective transportation system. That work has

resulted in a program that greatly improves protections for listed

salmonids with respect to the range of routine maintenance activities,

minimizing their impacts on receiving streams. The Association of

Oregon Counties and the City of Portland participated in some of the

later discussions of needed measures and processes. ODOT's program

includes its Maintenance of Water Quality and Habitat Guide dated June,

1999 (Guide) and a number of supporting policies and practices,

including a strong training program, accountability mechanisms, close

regional working relationships with Oregon Department of Fish and

Wildlife (ODFW) biologists, two ODFW staff whose time is fully

dedicated to work with ODOT, a biologist dedicated full time to work

with NMFS on transportation issues, and several ongoing research

projects.

The Director of ODOT has committed that ODOT will implement the

Guide,

[[Page 73491]]

including training, documentation and accountability features that are

described in the introduction to the document (Letter from Grace

Crunican to William Stelle, dated June 30, 1999). The guide governs the

manner in which crews should proceed on a wide variety of routine

maintenance activities, including surface and shoulder work, ditch,

bridge, and culvert maintenance, snow and ice removal, emergency

maintenance, mowing, brush control and other vegetation management. The

program directs activity toward favorable weather conditions, increases

attention to erosion control, prescribes appropriate equipment use,

governs disposal of vegetation or sediment removed from roadsides or

ditches, and includes other improved protections for listed salmonids,

as well as improving habitat conditions generally. Routine road

maintenance conducted in compliance with the ODOT program will

adequately address the problems potentially associated with such

activity. In other words, the Guide provides adequate safeguards for

listed salmonids. Furthermore, extension of the take prohibitions to

these activities would not provide meaningful, increased protection for

listed salmonids. In sum, NMFS does not find it necessary and advisable

to apply take prohibitions to routine road maintenance work performed

consistent with the Guide. The Guide governs only routine maintenance

activities of ODOT staff. Other activities, including new construction,

major replacements, or activity for which a U.S. Army Corps of

Engineers (COE) permit is required, are not covered by the routine

maintenance program and, therefore, would be subject to the take

prohibitions.

NMFS realizes that in many circumstances the Guide includes

language that could compromise the protections otherwise offered,

through phrases such as ``where possible'', ``where feasible'' or

``where practicable.'' Although as a general rule such language creates

an unacceptable level of ambiguity or uncertainty for a program being

recognized within the ESA, a variety of circumstances constrain and

limit that uncertainty in the case of ODOT's routine maintenance

program. Foremost is that ODOT intends these discretionary phrases to

be exercised only where physical, safety, weather, equipment or other

hard constraint make it impossible to follow a Best Management Practice

(BMP) to the letter. ODOT has explained this in the Guide, making clear

that the discretionary language is not included to create flexibility

for the convenience of the crew or for ease of operation. ODOT is

striving in its training program to have all crews understand that

point, and to provide examples of appropriate and inappropriate

application of those discretionary phrases. As an example of

appropriate use, the Guide states that ODOT will ``where feasible,

schedule sweeping during damp weather, to minimize dust production.''

ODOT crews strive to follow that. However, debris on the road at other

times may require that ODOT sweep a road regardless of road moisture,

to ensure a safe surface. ODOT would then proceed with sweeping as

necessary, using other applicable minimization and avoidance practices.

Further, ODOT crews undergo extensive and regular training, and are

increasingly focused on environmental considerations and compliance as

a core agency value and consideration. ODOT is testing new ideas for

enhancing feedback from crews to managers and policy staff. One

proposal establishes environmental leaders on each crew who then meet

regularly to address successes and failures. Information from that

group would then be fed into a monthly regional meeting for

identification of needed adjustments, and then on to quarterly

management reviews. While this system is not in place, it demonstrates

ODOT's determination to find and use practical feedback mechanisms to

enhance the routine maintenance program as well as other ODOT programs.

In sensitive resource areas, the possibilities of exercising

discretionary flexibility are further constrained by a new tool that

has been implemented in southern Oregon, will shortly be in place in

the north coast region, and completed throughout Oregon in 2002. The

agency is working to prepare detailed maps identifying any known

sensitive resource sites that occur within ODOT rights of way. ODOT is

mapping dominant land cover, functional overstory values, late

successional stage, riparian management areas, presence of contiguous

riparian areas, salmonid presence, spawning, rearing, offchannel areas,

tributaries, wetlands, and other resource issues. This mapping does not

delineate boundaries or provide presence or absence of species, but

rather inventories known resources within ODOT'S rights of way.

A resource map and a restricted activity map are being produced for

each road, by mile point and global position system coordinate. The

restricted activity maps are coordinated with ODOT maintenance staff

and will allow ODOT staff the knowledge to adjust their activities

based on resource information. 'No restriction' areas indicate that no

known resource of concern has been identified in the area, and routine

maintenance can occur using the Guide. A 'Caution' value indicates the

known presence of one or more resources in the general work area, and

maintenance crews should increase their awareness of their activities,

perhaps contacting region environmental staff. The district Integrated

Pest/Vegetation Management Plan and the Guide will direct activities.

The 'Restricted value' indicates that a resource of concern is known to

be present within the right of way and consultation with technical

staff needs to occur prior to any work or ground disturbing activity.

With a full-time staff person at NMFS dedicated to coordination and

communication with ODOT staff on a regular basis and participation in

monthly and quarterly review meetings, NMFS is assured of regular

feedback on how the program is operating. That feedback will provide a

picture of the frequency and nature of any deviations from the

practices specified in the Guide. If at some time in the future that

dedicated staff position is no longer available, then NMFS and ODOT

will have to find another means of assuring that feedback or amend the

program appropriately to keep it within the exception.

Finally, through annual reporting of external complaints and their

outcomes, ODOT will identify needed ``modifications of, or improvements

to'' any of the minimization/avoidance measures and has committed to

making changes to the measures as necessary. Likewise, ODOT will

incorporate changes reflecting new scientific information and new

techniques and materials.

ODOT will notify NMFS of any changes to the ODOT guidance, and

before NMFS determines that the take prohibitions should not be

extended to these activities, NMFS will publish notification in the

Federal Register providing a comment period of not less than 30 days

for public review and comment on the proposed changes. If at any time

NMFS determines that compliance problems or new information cause the

ODOT program to no longer provide sufficient protection for threatened

salmonids, NMFS shall notify ODOT. If ODOT does not effectively correct

the matter within a mutually determined time period, NMFS shall notify

ODOT that its routine road maintenance program is subject to the take

prohibitions.

[[Page 73492]]

While ODOT implements an integrated vegetation management program

which assures that herbicide or pesticide spraying will not occur in

areas of sensitive natural resources, including streams, NMFS is unable

to conclude at this time that the measures in ODOTs Guide governing

herbicide or pesticide spraying (MMS #131) are sufficiently protective

of listed salmonids to warrant not applying the take prohibitions of

this rule to that activity. This is in part because of the large number

of herbicide and pesticide formulations ODOT may employ, and the

legitimate concerns about effects of many of these chemicals on aquatic

species, and specifically on anadromous fish at various life stages.

The fact that NMFS does propose to apply take prohibitions to spraying

at this time does not indicate that NMFS has determined that any

particular ODOT pesticide spraying activities constitute harm to

salmonids; rather, that there is not sufficient evidence at this time

to be sure the risk of harm is low. NMFS intends to continue working

with ODOT on the issues surrounding herbicide and pesticide use. ODOT

is currently conducting research on whether chemicals it applies reach

streams under worst-case scenarios.

For similar reasons, the take prohibitions would apply to dust

abatement measures in the Guide. ODOT routine maintenance seldom

engages in dust abatement, and when it does uses only water and hence

is not risk of harming salmonids. There is insufficient precision in

the Guide as to chemical makeup of palliatives, specific areas of use,

rates of application, and possible contaminants for NMFS to be sure the

risk of harm would be acceptably low should any county or city that

does significant dust abatement seek to come within this exception.

Therefore, a county or city would have to provide those additional

details and commit to appropriate limits in an MOA before dust

abatement could be considered as within the limit on take prohibitions.

NMFS believes that other than for herbicide and pesticide spraying and

dust control, activity in compliance with the ODOT guidance and program

would not further degrade or otherwise restrict attainment of properly

functioning conditions. With respect to routine road maintenance

activities in Oregon, the program limits impacts on listed salmonids

and their habitat to an extent that makes additional Federal

protections unnecessary for the conservation of listed salmonids.

Therefore, in this proposed rule NMFS does not apply take prohibitions

on routine road maintenance activities (other than herbicide and

pesticide spraying, or dust abatement) so long as the activity is

covered by and conducted in accord with ODOT's Maintenance Management

System Water Quality and Habitat Guide (June, 1999). ODOT will continue

to obtain permits from the COE and/or Oregon Division of State Lands

for any in-stream work normally requiring those permits, and COE

section 7 consultation requirements on permit issuance is not affected

by this limit on the take prohibitions. ODOT has committed to review

the Guide and revise as necessary at least every 5 years. ODOT is

actively reviewing potential impacts or new technologies related to

many issues. For instance, results from an earlier technical team

evaluation of impacts of de-icing mechanisms on aquatic resources is

included as an appendix to the Guide. That group has been reconvened

(with NMFS as a member) and is revisiting adherence to the

specifications, as well as evaluating extensive research on CMA

(calcium-magnesium acetate). Initial research indicates that CMA is not

getting to the water column, but the team will be following up. ODOT

has also been doing roadside snow sampling to determine whether any

typical road-side pollutant is present on road sand, and thus far has

not identified any measurable concentrations.

ODOT has several other interagency teams working toward improving

practices or further defining specific issues related to ditches,

culverts, or emergency circumstances. It is also continuing research on

how to best recycle or otherwise appropriately dispose of maintenance

decant, sediment, or sweepings. Any of the above may result in improved

practices and, where necessary, in revision of the Guide.

At any time ODOT revises part of the 1999 Guide, ODOT will need to

provide the desired revision to NMFS for review and approval. NMFS will

make draft changes available for public review and comment for a period

of not less than 30 days. Notice of the availability of such draft

changes will be published in the Federal Register. Notice will also be

sent to parties expressing an interest in the Guide. Parties interested

in receiving notification should contact NMFS (see ADDRESSES).

Some Oregon city and county governments have indicated interest in

using the ODOT guidance to be sure that their routine road maintenance

activities are protective of salmonids. The fact that ODOT has an

extensive and ongoing training program for all maintenance employees

and has committed to report on an annual basis details of program

implementation is fundamental to NMFS' belief that the program is

adequate. Hence, any Oregon city or county desiring that its routine

road maintenance activities come under this ``exception'' must not only

commit in writing to apply the measures in the Guide, but also must

first enter into a MOA with NMFS detailing how it will assure adequate

training, tracking, and reporting, including how it will control and

narrow the circumstances in which a practice will not be followed

because it is not ``feasible,'' ``practical,'' or ``possible.''

Portland Parks Integrated Pest Management Limit on the Take

Prohibitions

The City of Portland, Oregon, Parks and Recreation Department

(PP&R) operates a diverse system of city parks representing a full

spectrum from intensively managed recreation, sport, golf, or garden

sites to largely natural, unmanaged parks, including the several

thousand acre, wooded, Forest Park. PP&R has been operating and

refining an integrated pest management program for 10 years, with a

goal of reducing the extent of its use of herbicides and pesticides in

park maintenance. The program's ``decision tree'' place first priority

on prevention of pests (weeds, insects, disease) through policy,

planning, and avoidance measures (design and plant selection). Second

priority is on cultural and mechanical practices, trapping, and

biological controls. Use of biological products, and finally, of

chemical products, is to be considered last. PP&R's overall program

affects only a small proportion of the land base and waterways within

Portland, and serves to minimize any impacts on listed salmonids from

chemical applications associated with that specific, limited land base.

NMFS believes it would contribute to conservation of listed salmonids

if jurisdictions would broadly adopt a similar approach to eliminating

and limiting chemical use in their parks and in other governmental

functions.

As a result of this program, the City has phased out regularly

scheduled treatments such as turf spraying to control broadleaf weeds.

This has reduced total use of chemical to control broadleaf weeds to

less than 15 percent of its former level.

Decisions to use pesticides are not made lightly and require

attention to public notification, mixing, cleaning and record keeping.

Use of pesticides is no longer a ``least hassle'' kind of option. City

personnel report that

[[Page 73493]]

pesticide use is avoided by maintenance crews unless there are no other

workable options.

Crews cease application when winds will cause spray drift beyond

the target site. Spot spraying or brushing of herbicides is frequently

chosen.

The PP&R has recently developed special policies to provide extra

protections near waterways and wetlands, including a 25- foot (7.5m)

buffer zone in which pesticide use is limited to Glyphosphate products,

Garlon 3A, Surfactant R-11, Napropamide, Cutrine Plus, and Aquashade.

Within this buffer applications are spot applied with a hand wand from

a backpack sprayer, which utilizes low pressure spray to minimize

drift. Under certain circumstances broadcast spraying, which also uses

the low pressure hand-wand spraying will be conducted. Application

rates of chemicals used range from 9 percent to 100 percent of label

allowances, depending on the identified task.

After careful analysis of PP&R's integrated program for pest

management, NMFS concludes that it addresses potential impacts and

provides adequate protection for listed salmonids with respect to the

limited use the program may make of the above listed chemicals.

Therefore, NMFS does not find it necessary and advisable to apply

additional Federal protections in the form of take prohibitions to PP&R

activities conducted under City of Portland, Oregon's Parks and

Recreation Department's (PP&R) Pest Management Program (March 1997),

including its Waterways Pest Management Policy dated April 4, 1999. In

addition, NMFS concludes that take prohibitions would not meaningfully

increase the level of protection provided for listed salmonids. NMFS,

therefore, does not propose to apply the take prohibitions of this

proposed rule to activities within the PP&R program.

Confining the take prohibition limit to a specified list of

chemicals does not indicate that NMFS has determined that other

chemicals PP&R may employ necessarily will cause harm to salmonids in

the manner used. NMFS intends to continue working with PP&R on the

issues surrounding use of any other herbicide or pesticide.

PP&R's program includes a variety of monitoring commitments and a

yearly assessment with NMFS of results, progress, and any problems. If

at any time monitoring information, new scientific studies, or new

techniques cause PP&R to amend its program or to cause PP&R and NMFS to

wish to change the list of chemicals falling outside the scope of the

take prohibitions, NMFS will publish notification in the Federal

Register announcing the availability of the proposed changes for public

review and comment. Such a notification will provide for a comment

period of not less than 30 days, after which NMFS will make a final

determination whether the changes will conserve listed salmonids. PP&R

has been seeking to decrease the extent of its intensively managed

riparian areas. NMFS commends that effort, while recognizing that PP&R

is constrained by recreational, aesthetic, safety and other

responsibilities. This limit on the take prohibitions does not include

PP&R's initial planning determinations about the extent of riparian

vegetative buffer provided; that question is separable from the

integrated pest management approach taken to achieve the conditions

planned. This limit focuses on the methods PP&R employs to assure that

once it has identified a particular plant or animal as a pest, its

control methods are as protective of natural processes, water quality,

and listed species as possible.

Limit on Take Prohibitions for New Urban Density Development

As a general matter, significant new urban scale developments have

the potential to degrade salmonid habitat and to injure or kill

salmonids through a variety of impacts. NMFS believes that with

appropriate safeguards, new development can be specifically tailored to

minimize impacts on listed salmonids to an extent that makes additional

Federal protections unnecessary for conservation of the listed ESU.

Through this proposed rule, NMFS proposes a mechanism whereby

jurisdictions can be assured that development authorized within those

areas is consistent with ESA requirements and avoids or minimizes the

risk of take of listed salmonids. Both potential developers and the

jurisdictions controlling new development would benefit by assurance

that their approvals and development actions conserve listed salmonids.

For example, urban density development in the Portland, Oregon

metropolitan area may not occur outside of an adopted urban growth

boundary (UGB). Metro, the regional governing body, is in the process

of bringing some large areas currently designated as urban reserve

areas into the UGB. Before development may commence within such newly

included areas, the jurisdiction within which the area lies must

prepare and adopt comprehensive plan amendments for urban reserve areas

consistent with all provisions of the Metro Urban Growth management

Functional Plan, outlining what development will be allowed and the

conditions to be placed upon development.

Similarly, cities both within and outside the Metro region and in

other states affected by this rule may be approving new urban

development on tracts of a size that allows integrated planning for

placement of buildings, transportation, storm water management, and

other functions. Several areas under consideration for Metro boundary

expansions, and several undeveloped tracts within currently urbanized

areas, include streams that support listed salmonids.

This proposed rule further proposes that NMFS will not apply take

prohibitions to new developments governed by and conducted in accord

with adequate city or county ordinances that NMFS has determined are

adequate to help conserve anadromous salmonids. Similarly, within the

jurisdiction of the Metro regional government in Oregon, if NMFS finds

that Metro's Urban Growth Management Functional Plan (Functional Plan)

is adequate, take prohibitions will not be applied to development

governed by ordinances that Metro has found consistent with that

Functional Plan. NMFS must agree in writing that the city or county

ordinances or Metro's Functional Plan are sufficient to assure that

plans and development complying with them will result in development

patterns and actions that conserve listed salmonids.

In determining whether Metro's Functional Plan or local ordinances

are adequate NMFS will focus on 12 issues, discussed here. Many of

these principles are derived from Spence, An Ecosystem Approach to

Salmonid Conservation (NMFS, 1996) and citations therein. NMFS

recognizes that some of these principles require integrated planning

for placement of buildings, transportation or storm water management

and that those 12 principles will have to be applied in the context

within which the development is to occur, which will differ among major

new developments and for small, single lot developments or

redevelopments. Ordinances or Metro's Functional Plan must assure that

urban reserve plans or developments will:

(1) Be sited in appropriate areas, avoiding unstable slopes,

wetlands, areas of high habitat value, and similarly constrained sites.

(2) Avoid stormwater discharge impacts to water quality and

quantity, and preserve, or move stream flow patterns (hydrograph)

closer to, the

[[Page 73494]]

historic peak flow and other hydrograph characteristics of the

watershed. Through a combination of reduction of impervious surfaces,

runoff detention, and other techniques development can achieve that

purpose within its portion of the watershed. Other development design

characteristics, stormwater management practices and buffer

requirements will prevent sediment and other pollutants from reaching

any watercourse.

(3) Require adequate riparian buffers along all perennial and

intermittent streams. Because of the intensity of disturbance in

surrounding uplands, riparian buffers are at least as critical in urban

areas as in rural areas. Without adequately vegetated riparian set-

backs, properly functioning conditions including temperature control,

bank stability, stream complexity and pollutant filtering cannot be

achieved.

Retain all existing native vegetation because of its importance in

maintaining bank stability, stream temperature, and other

characteristics important to water quality and fish habitat. Prevent

destruction of existing native vegetation prior to land use

conversions. Where the area contains non-native vegetation, maintained

lawn, or is cropped, add or substitute native vegetation within the

riparian set-back to achieve a mix of conifer, deciduous trees,

understory and ground covers must be planted. To the extent allowed by

ownership patterns, the development set-back should be equivalent to

greater than one site potential tree height (approximately 200 ft (60

m) or at least to the break in slope for steep slopes) from the outer

edge of the channel migration zone on either side of all perennial and

intermittent streams, in order to protect off-channel high flow rearing

habitat and allow full stream function. Within that set-back the first

50 ft (15 m) should be protected from any mechanical entry or

disturbance, structures, or utility installations, and should be

dominated by maturing or mature conifers, together with some hardwoods

and a vigorous, dense understory of native plants. This inner buffer

should also be protected from high-impact recreational use and any

trails should be of permeable, natural materials. The inner buffer

provides multiple values, including root systems for bank stability.

The outer 100-plus ft (30.5 m) of set-back should be entirely in native

vegetation (not in maintained lawn) with a mix of conifer, deciduous

trees, understory and groundcovers. Disturbances should be minimized.

(4) Avoid stream crossings by roads wherever possible, and where

one must be provided, minimize impacts through choice of mode, sizing,

placement. One method of minimizing stream crossings and disturbances

is to optimize transit opportunities to and within newly developing

urban areas. Consider whether potential stream crossings can be avoided

by access redesign. Where crossings are necessary, minimize their

impacts by preferring bridges over culverts; sizing bridges to a

minimum width; designing bridges and culverts to pass at least the 100-

year flood and associated debris, and meet ODFW or WDFW criteria;

assuring regular monitoring and maintenance over the long term; and

prohibiting closing over of any intermittent or perennial stream. The

Washington Department of Fish and Wildlife, (WDFW) Habitat and Lands

Environmental Engineering Division's ``Fish Passage Design at Road

Culverts'', March 3, 1999, or ``Oregon Road/Stream Crossing Restoration

Guide: Spring 1999'' provide excellent frameworks for action.

(5) Protect historic stream meander patterns, flood plains and

channel migration zones; do not allow hardening of stream banks. All

development should be designed to allow streams to meander in historic

patterns of channel migration. Adequate riparian buffers linked to the

channel migration zone should avoid need for bank erosion control in

all but the most unusual situations. If required by unusual

circumstances, bank erosion should be controlled through vegetation or

carefully bioengineered solutions. Rip-rap blankets or similar

hardening techniques are not allowed, unless bioengineered solutions

are impossible because of particular site constraints. Habitat elements

such as wood, rock, or other naturally occurring material must not be

removed from streams. WDFW's ``Integrated Streambank Protection

Guidelines, June, 1998'' provide sound guidance, particularly regarding

mitigation for gravel recruitment and channel complexity lost through

streambank hardening.

(6) Protect wetlands and the vegetation surrounding them to

maintain wetland functions. Design around wetlands for their positive

habitat, water quality, flood control, and groundwater connection

values, providing adequate buffers. Retain all existing natural

wetlands.

(7) Preserve the hydrologic capacity of all intermittent and

perennial streams to pass peak flows. Assure that at minimum the Flood

Management Performance Standards of Title 3 of Metro's Urban Growth

Management Functional Plan are applied to all development in urban

expansion areas, together with any other steps needed to protect

hydrologic capacity. In combination with the buffer or set-back

provisions above, this means that for new, large developments, fill or

dredging should never occur unless in conjunction with a necessary

stream crossing.

(8) Landscape to reduce need for watering and application of

herbicides, pesticides and fertilizer. Plans must include techniques

local governments will use to encourage planting with native

vegetation, reduction of lawn area, and reduced water use. These steps

will contribute to water conservation and ultimate reduction of flow

demands that compete with fish needs, as well as reduce applications of

fertilizers, pesticides, herbicides that may contribute to water

pollution.

(9) Prevent erosion and sediment run-off during and after

construction to prevent discharge of sediments by assuring that at a

minimum the requirements of Title 3 of Metro's Urban Growth Management

Functional Plan are applied to all development in Metro-area urban

expansion areas, and that an equivalent level of protection is provided

in other large scale urban developments.

(10) Assure that water supply demands for the new development can

be met without impacting flows needed for threatened salmonids either

directly or through groundwater withdrawals. Assure that any new water

diversions are positioned and screened in a way that prevents injury or

death of salmonids.

(11) Identify a commitment to and the responsibility to regularly

monitor and maintain any detention basins and other management tools

over the long term, and to adapt practices as needed based on

monitoring results.

(12) Provide all enforcement, funding, monitoring, reporting, and

implementation mechanisms needed to assure that ultimate development

will comply with the ordinances or the Metro Urban Growth Management

Functional Plan.

To fall outside of the take prohibitions the development must

comply with other state and Federal laws and permit requirements. NMFS

concludes that development governed by ordinances or Metro guidelines

that meet the preceding principles will address the potential negative

impacts on salmonids associated with new development. In such

circumstances adequate safeguards will be in place that NMFS does not

find imposition of additional Federal protections through take

prohibitions necessary and advisable for conservation of listed

salmonids.

[[Page 73495]]

Forest Management Limit on Take Prohibitions

In the State of Washington, NMFS has been participating in

discussions among timber industry, tribes, state and Federal agencies,

and interest groups for many months. The purpose of these discussions

was to develop modules of forest practices for inclusion in Washington

Governor Locke's salmon recovery plan, and consequent implementation

through the Department of Natural Resources. The product of those

discussions, an April 29, 1999 Forests and Fish Report (FFR) to

Governor Locke, provides important improvements in forest practice

regulation which, if implemented by the Washington Forest Practices

Board in a form at least as protective as laid out in the FFR, will

provide a significant level of protection to listed salmonids and

contribute to their conservation. It also mandates that all existing

forest roads be inventoried for potential impacts on salmonids through

culvert inadequacies, erosion, slope failures, and the like, and all

needed improvements be completed within 15 years. Because of the

substantial detrimental impacts of inadequately sited, constructed or

maintained forest roads on salmonid habitat, this feature of the

overall FFR provides a significant conservation benefit for listed ESUs

in Washington. Because of these features, described in greater detail

here, NMFS does not propose to apply ESA section 9 take prohibitions to

non-federal forest management activity conducted in the State of

Washington in compliance with the April 29, 1999 FFR and forest

practice regulations implemented by the Washington Forest Practices

Board that are at least as protective of habitat functions as are the

regulatory elements of the FFR. Compliance with the provisions of FFR

will address problems historically associated with forest management

activity. NMFS concludes that in general the FFR package creates

adequate safeguards that no additional Federal protections through

imposition of take prohibitions to forest management activity is

necessary and advisable for conservation of threatened salmonids.

NMFS believes rapid adoption and implementation of such improved

forest practice regulations important to conservation of listed

salmonids. Before making a judgement on the adequacy of regulations

developed to implement the FFR, NMFS will provide an opportunity for

public review and comment.

This restriction of the take prohibitions is limited to the State

of Washington. Environmental factors such as current habitat

conditions, climate and geology, landscape conditions, and functioning

habitat elements vary between ecoregions. In addition, procedural and

regulatory differences between Washington and other states containing

steelhead ESUs limit the applicability of the FFR or similar provisions

to watersheds outside of the State of Washington. Therefore, the take

prohibitions applied generally by this proposed rule would apply to

forest management activities in other states.

Although NMFS will continue working with Washington and others

toward broadening this ``exception'', at this time information

limitations prevent NMFS from determining that pesticide use or actions

under an alternative forest management plan, as contemplated in the

total FFR package, are sufficiently protective. Therefore, take

prohibitions applied generally by this proposal would apply to those

activities.

Elements of the FFR that provide protections or conservation

benefits for listed salmonids are summarized here; anyone wishing to

review the actual text of or details of those measures should request a

copy of the FFR document (see ADDRESSES).

(1) It is based on adequate classification of water bodies and

broad availability of stream typing information. Effective maintenance

and recovery of fish habitats and populations requires specific

geographic knowledge of existing and potential fish habitats as well as

the higher elevation, non-fishbearing stream systems that create and

influence them. Forest practices should be tailored to protect and

reinforce the functions and roles of different stream classes in the

continuum of the aquatic ecosystem, such as (A) fishbearing streams

which are within the bankfull width of defined stream channels that are

currently or potentially capable of supporting fish of any species,

perennially or seasonally; (B) perennial, non-fishbearing streams,

which include spatially intermittent streams; and (C) seasonal, non-

fishbearing streams (intermittent or non-perennial), which have a

defined channel that flows water, of any flow volume, some time during

the water year. Landowners, regulatory agencies, and the public should

have reasonable access to this information, preferably through

Geographic Information Systems, or some other accessible repository of

stream typing information.

(2) It provides for proper design and maintenance and upgrade of

existing and new forest roads, which is necessary to maintain and

improve water quality and instream habitats. Impacts associated with

forest roads include changes in hydrology (basin capture, interception

of groundwater, increased peak flows); generation and routing of coarse

and fine sediments; physical impediments to fish passage; altered

riparian function; altered fluvial processes and floodplain

interaction; and direct loss of off-channel habitats. The FFR

provisions include: (A) avoiding road construction or reconstruction in

riparian areas unless alternative options for road construction would

likely cause greater damage to aquatic habitats or riparian functions;

(B) prohibits road construction or reconstruction on unstable slopes

unless an analysis involving qualified geotechnical personnel and an

opportunity for public environmental input shows that road construction

can proceed without creating activity-related landslides, sediment

delivery or other impacts to stream channels or water bodies; (C) new

and reconstructed roads must not impair hydrologic connections between

stream channels, ground water, and wetlands; must not increase

sedimentation to aquatic systems; must use only clean fill materials;

and must have adequate drainage and surfacing. Stream crossings must

provide adequate fish passage and be designed to accommodate a 100-year

flood as well as adequate large woody debris passage; (D) requires of

each landowner/operator an inventory of the condition of all roads

within that management ownership, and a plan for repair,

reconstruction, maintenance, access control, and where needed

abandonment and/or obliteration of all roads in any land ownership.

Inventory showing priorities for all needed work should be completed

within 5 years, and work identified as needed completed within 15

years. Road maintenance plans for all new or reconstructed roads must

address routine operations (grading, ditch cleaning, etc.), placement

of spoil or graded sediments, retention of coarse and large woody

debris at stream crossings, placement of large woody debris recruited

in proximity to riparian roads, and emergency repairs; (E) requires

BMPs in all other aspects of forest road operations, including log haul

use, recreational use, and seasonal closure as needed to maintain and

improve stream habitats and water quality to meet seasonal life history

requirements for fishes.

(3) It protects unstable slopes from increased rates and volume of

failure delivering coarse and fine sediments to aquatic systems, which

can significantly

[[Page 73496]]

impair fish species life stages. The goal for management of unstable

slopes is to avoid an increase or acceleration of the naturally

occurring rate and volume of landslides within forested watersheds

subject to forest practices, while recognizing that mass-wasting of

slopes is an essential element in watershed processes that route large

woody debris through the stream system. The program provides a process

through which the Washington Department of Natural Resources (DNR)

attempts to identify potentially unstable slopes in areas subject to

forest operations through interpretation of slope gradient, landform,

surficial and parent geologies, current and historic aerial

photography, landslide inventories, and computer models of slope

stability. These will include inner gorges of streams, convergent

headwalls and bedrock hollows with slopes greater than 70 percent, toes

of deep-seated landslides with slopes greater than 65 percent,

groundwater recharge areas for glacial, or other, deep-seated

landslides, soil covered slopes steeper than 70 percent, and slopes

along the outer bend of stream channels that have the potential to fail

with continued fluvial erosion at the channel toe slope interface.

If a management activity on a potentially unstable slopes is found

by the DNR to increase the probability of slope failure, deliver

sediment to public resources, and is likely to cause significant

adverse impacts, then DNR may approve, approve with conditions, or

disapprove the application;

(4) It provides for achieving properly functioning riparian

conditions along fishbearing waters. Proper function refers to the

suite of riparian functions that includes stream bank stability, shade,

litterfall and nutrient input, large woody debris recruitment, and such

microclimate factors as air and soil temperature, windspeed, and

relative humidity that affect both instream habitat conditions and the

vigor and succession of riparian forest ecosystems. Assessing the

adequacy of riparian conservation measures requires a synthesis of

judgements about individual functions. For example, NMFS judgements

about large woody debris function will be based on the proposed

management widths, the probability of tree fall with distance from the

stream and site potential tree heights of dominant and subdominant

species in a mature riparian forest.

Two possible strategies may be followed to achieve properly

functioning riparian ecosystems.

A natural succession and growth strategy establishes riparian

management zone widths within which no silvicultural treatments occurs.

These widths must be at least 2/3 or 3/4 of a site potential tree

height for typical dominant conifers, depending on stream width.

Disturbance for activities such as road crossings and cable yarding

corridors should be avoided. Where ground and vegetation disturbance is

unavoidable, it must be limited to a small percentage of the riparian

area. Riparian stand development must be allowed to proceed under

natural rates of growth and succession to mature conditions,

undisturbed by future harvest or silvicultural activities. This

strategy is expected to be employed when an evaluation of the riparian

zone shows that all available trees need to be retained and allowed to

grow and succeed to achieve the desired future conditions and the

landowner does not choose to apply silvicultural treatments to

accelerate these processes.

A managed succession and growth strategy achieves properly

functioning conditions by providing potentially variable width

management zones within which silvicultural treatments are allowed.

These treatments are prescribed through silvicultural guidelines that

assure NMFS that the riparian forest stand is on a growth and

succession pathway toward a desired future condition of a mature

riparian forest. Once the trajectory of growth toward the desired

future condition is achieved the riparian forest must remain on that

trajectory without further harvest or silvicultural treatment. Both

strategies are expected to provide high levels of riparian function

when implemented.

Characteristics of both the natural succession and managed growth

strategies include:

(1) Continuous riparian management zones along all fish-bearing

streams.

(2) A core zone at least 50 ft (15.24 m) wide west of the Cascades

and 30 ft (9.15 m) on the east side, within which no harvest or salvage

occurs. This width is measured horizontally from edge of the bankfull

channel or where channel migration occurs, from the edge of the channel

migration zone.

(3) An inner zone that varies in width by strategy.

(4) An outer zone extending to a site potential tree height (100-

year base) that provides a minimum of 20 conifer trees per acre greater

than 12 inches (.30 m) diameter at breast height. These trees will not

be counted as trees retained to satisfy DFC silvicultural guidelines;

and

(5) Disturbance limits do not exceed 20 percent of the overstory

canopy along the stream length for yarding corridors and 10 percent

ground disturbance. Ground disturbance includes, but is not limited to,

yarding corridors, soil compaction and exposure, stream crossings and

other effects that are a product of log yarding and equipment use. Tree

retention to satisfy silvicultural guidelines must be achieved

regardless of the area modified for yarding corridors.

The managed succession and growth strategy will achieve desired

future conditions for riparian forest ecosystems through:

(6) Selecting a stand composition and age that represents a mature

riparian forest as the desired future condition. Generally, mature

riparian forest conditions are achieved at between 80 and 200 years, or

more, together with a detailed description of basal area, stocking

levels, average tree diameters and range of tree diameters of desired

species, and any other characteristics needed to describe the desired

future condition. The strategy then sets out a comprehensive set of

prescriptions that describe the basal area, stocking, tree diameters,

and other metrics that must be retained in a stand of any particular

age or composition, to allow forest stand growth and succession to

proceed toward DFC. These prescriptions vary with site productivity

(100-year base), dominant species, and likely successional pathways and

take into account natural disturbance processes, agents and patterns

that affect pathways toward the desired future condition.

Silvicultural treatments must be conservative and be limited to only

those actions that assure achievement of DFC. Dominant and co-dominant

trees will be retained. Once this DFC trajectory has been achieved the

riparian stand will be allowed to grow and succeed without further

harvest or treatment.

(7) A methodology for field application of riparian prescriptions

that provides assurances that desired future conditions will be

achieved.

(8) Requiring riparian conservation zone widths that provide bank

stability, litterfall and nutrients, shade, large woody debris,

sediment filtering, and microclimate functions in the near and long-

term. Widths of the inner riparian zone may vary depending on site

productivity, silvicultural guidelines and expected trajectories toward

the DFC but must be 80 ft (24.5 m) or greater for the poorest

productivity class. As site productivity increases so must the inner/

core zone minimum widths. These minimum widths are necessary to provide

riparian functions such as microclimate and shade that may be

compromised when, for example,

[[Page 73497]]

mature, conifer-dominated riparian stands are managed.

(9) Providing for mitigation for disturbance of riparian function,

water quality, and fluvial (floodplain) processes from permanent road

systems near stream channels through such techniques as replacement of

basal area and number of stems lost to the road prism, and placement of

trees that have fallen across or onto the fill or cutslopes of riparian

roads to the streamward side of the road as part of routine or

emergency road maintenance activities.

(10) Treatment guidelines by tree species and region that address

stocking levels, tree selection, spacing, and other common forest

metrics for a given stand age and condition necessary to achieve the

DFC; requires protection and release of residual or understory tree

species that would form a desirable component of a future mature

riparian forest; requires retention of structural diversity in the

stand, including openings (spatial diversity), species diversity, and

emphasis on tree retention on topographic features that increase the

probability of tree fall toward stream channels; and guidelines for

maintaining shade necessary to meet fish life history requirements.

Shade retention along fish-bearing streams, sensitive sites such as

seeps and springs, and other groundwater source areas must be 100

percent of the available shade unless local and/or regional water

temperature models and/or standards can be shown to meet fish life

history requirements.

(11) Guidelines for conversion of hardwood-dominated riparian areas

that cannot achieve the stand requirements of forest stands on a

successional pathway toward a desired future condition. They include a

50-ft (15 m) core zone that is not managed and is disturbed only for

road crossings and yarding corridors. All overstory conifers must be

retained and damage to understory conifers in the inner zone minimized.

It also includes a minimum tree retention standard for the outer zone.

(12) A strategy for the conservation of fluvial processes and fish

habitats that occur within the channel migration zone. Channel

migration zones include those potential and standing riparian forests

that occur on floodplains and low terraces along channels that migrate

rapidly (on a geologic time-scale) over their valley floors. The area

within the channel migration zone is susceptible to flooding and

catastrophic events that often rapidly recruits standing and deposited

woody material. Secondary channels provide summer and winter habitats

for fishes. Therefore, core riparian management zones are measured from

the channel migration zone boundary, when present.

(13) Guidelines for salvage of dead or downed timber in the inner

and outer riparian zones that retain coarse woody debris on the

riparian forest floor at levels seen in mature forests, retain live or

standing dead trees in the inner zone that have value as future large

woody debris and that can add structural and species diversity to the

future riparian forest, retain all dead or downed timber within the

channel, any channel migration zone, and the core zone, and minimize

site preparation necessary for replanting.

(14) Evaluating the effects of multiple forest practices on the

watershed scale through a standardized, repeatable methodology based on

the best available science, considering the cumulative effects of

forest practices over time, and providing a regulatory basis for

precluding or delaying forest practices to prevent actual or potential

damage to aquatic habitats that directly or indirectly support

anadromous salmonids.

(15) It sets up riparian management zones along perennial and

seasonal non-fish bearing streams that:

(A) Manage heat energy input to surface waters by retaining all

existing overstory canopy along at least 50 percent of the length of

perennial non-fish bearing streams. Shade retention around sensitive

sites such as seeps and springs, and other groundwater source areas is

100 percent of the available shade unless local and/or regional water

temperature models and/or standards can be shown to meet fish life

history requirements.

(B) Limit the maximum percent of the riparian management area that

may be subject to soil disturbance, soil compaction and the mortality

alteration of vegetation from equipment, cable movements, log yarding,

and road crossings.

(C) Limit equipment use within 30 ft (10 m) of perennial and

seasonal non-fishbearing streams.

(D) Ensure partial recruitment and routing of woody material

through defined channels to fishbearing waters downstream by retaining

an unmanaged riparian zone in excess of one-half of a crown diameter of

a mature dominant riparian tree along at least 50 percent of the length

of perennial waters.

(E) Provide a continuous riparian buffer in excess of one-half of a

crown diameter of a mature dominant riparian tree for a distance of 300

to 500 ft (91.5 to 152.5 m) upstream of confluences with fishbearing

waters. This continuous buffer serves as a run-out zone for channelized

landslides, an opportunity for groundwater interaction with surface

waters and as an important source area for large woody debris recruited

to fishbearing streams downstream.

(16) It includes monitoring and adaptive management to assess

implementation compliance with, and effectiveness of, current

regulations, measured against a baseline data set. Over time, some

forest practices will require replacement or adjustment to respond to

additions to our current body of knowledge. Whenever monitoring

information or new scientific knowledge lead the state forest practice

agency to amend a program that has been brought within this

``exception'', NMFS will publish notification in the Federal Register

announcing the availability of those changes for review and comment.

Such a notice will provide for a comment period of not less than 30

days, after which NMFS will make a final determination whether the

changes conserve listed salmonids and, therefore, are included within

this limit on the take prohibitions.

NMFS finds that, except with respect to pesticide applications and

actions under alternative plans, with these safeguards in place,

imposition of take prohibitions on forest management activities in

Washington is not necessary and advisable because it would not provide

meaningful additional conservation benefits for listed salmonids.

This limit on the take prohibitions will be applicable only within

the State of Washington, because an adequate program for any other

state would have to take into account interregional and interstate

differences in land conditions, current function of various habitat

elements, and other differences in situation that affect the biological

status of salmonids.

Public Comments Solicited; Public Hearings

NMFS is soliciting comments, information, and/or recommendations on

any aspect of this proposed rule from all concerned parties. (see DATES

and ADDRESSES). Public hearings provide an additional opportunity for

the public to give comments and to permit an exchange of information

and opinion among interested parties. NMFS Northwest Region has,

therefore, scheduled 15 public hearings throughout the Northwest to

receive public comment on this rule and other ESA 4(d) rules proposed

concurrently. Similarly, NMFS' Southwest Region will hold 7 hearings in

California. The agency will consider all information,

[[Page 73498]]

comments, and recommendations received before reaching a final decision

on 4(d) protections for these ESUs.

Public Hearings in Washington, Idaho, and Oregon

(1) January 10, 2000, 6:00 - 9:00 p.m., Metro Regional Center,

Council Chamber, 600 NE Grand Ave, Portland, Oregon;

(2) January 11, 2000, 6:00 - 9:00 p.m., Quality Inn, 3301 Market St

NE, Salem, Oregon;

(3) January 12, 2000, 6:00 - 9:00 p.m., Lewiston Community Center,

1424 Main Street, Lewiston Idaho;

(4) January 13, 2000, 6:00 - 9:00 p.m., Natural Resource Center,

Bureau of Land Management, 1387 South Vinnell Way, Boise, Idaho;

(5) January 18, 2000, 6:00 - 9:00 p.m., City Library, 525 Anderson

Ave., Coos Bay, Oregon;

(6) January 19, 2000, 6:00 - 9:00 p.m., Hatfield Science Center,

2030 SE Marine Science Drive, Newport, Oregon;

(7) January 20, 2000, 6:00 - 9:00 p.m., Columbia River Maritime

Museum, 1792 Marine Drive, Astoria, Oregon;

(8) January 24, 2000, 6:00 - 9:00 p.m., Eugene Water & Electric

Board Training Room, 500 East 4TH Ave. Eugene, Oregon;

(9) January 25, 2000, 6:00 - 9:00 p.m., City Hall, 2nd

Floor Council Chamber, 500 SW Dorian Ave., Pendleton, Oregon;

(10) January 26, 2000, 6:00 - 9:00 p.m., Yakima County Courthouse,

Room 420, 128 North 2nd St., Yakima, Washington

(11) January 27, 2000, 6:00 - 9:00 p.m., Mid Columbia Senior

Center, John Day Room, 1112 West 9th, The Dalles, Oregon;

(12) January 31, 2000, 6:00 - 9:00 p.m., City Hall, Dining Room

(Basement), 904 6th St., Anacortes, Washington;

(13) February 1, 2000, 6:00 - 9:00 p.m., Northwest Fisheries

Science Center Auditorium, 2725 Montlake Blvd. East, Seattle,

Washington;

(14) February 2, 2000, 6:00 - 9:00 p.m., City Hall, Council

Chamber, 321 E. 5th, Port Angeles Washington;

(15) February 3, 2000, 6:00 - 9:00 p.m., Sawyer Hall, 510 Desmond

Drive, Lacey, Washington;

Public Hearings in California

(1) January 25, 2000, 6:30 - 9:00 p.m., Double Tree (now Red Lion),

1830 Hilltop Drive, Redding, California;

(2) January 26, 2000, 6:30 - 9:00 p.m., Heritage Hotel, 1780

Tribute Rd., Sacramento, California

(3) January 27, 2000, 6:30 - 9:00 p.m., Modesto Irrigation

District, 1231 11th St., Modesto, California;

(4) January 31, 2000, 6:30 - 9:00 p.m., Eureka Inn, 518 Seventh

St., Eureka, California;

(5) February 1, 2000, 6:30 - 9:00 p.m., Double Tree, One Double

Tree Drive, Rohnert Park, California;

(6) February 2, 2000, 6:30 - 9:00 p.m., Best Western, 2600 Sand

Dunes Drive, Monterey, California;

(7) February 3, 2000, 7:00 - 9:30 p.m., Embassy Suites, 333 Madonna

Rd., San Luis Obispo, California. 7:00-9:30P

Special Accomodations

These hearings are physically accessible to people with

disabilities. Requests for sign language interpretation or other aids

should be directed to Garth Griffin or Craig Wingert (see ADDRESSES) by

7 days prior to each meeting date.

References

A list of references cited in this proposed rule is available upon

request (see ADDRESSES).

Classification

Regulatory Flexibility Act

When an agency proposes regulations, the Regulatory Flexibility Act

(RFA) (5 U.S.C. 601-612) requires the agency to prepare and make

available for public comment an initial regulatory flexibility analysis

(IRFA) that describes the impact of the proposed rule on small

businesses, nonprofit enterprises, local governments, and other small

entities, unless the agency is able to certify that the action will not

have a significant impact on a substantial number of small entities.

The IRFA is to aid the agency in considering all reasonable regulatory

alternatives that would minimize the economic impact on affected small

entities.

The RFA was designed to ensure that agencies carefully assess

whether aspects of a proposed regulatory scheme (record keeping, safety

requirements, etc.) can be tailored to be less burdensome for small

businesses while still achieving the agency's statutory

responsibilities. This proposed ESA 4(d) rule has no specific

requirements for regulatory compliance; it essentially sets an

enforceable performance standard (do not take listed fish) that applies

to all entities and individuals within the ESU unless that activity is

within a carefully circumscribed set of activities on which NMFS

proposes not to impose the take prohibitions. Hence, the universe of

entities reasonably expected to be directly or indirectly impacted by

the prohibition is broad.

The number of entities potentially affected by imposition of take

prohibitions is substantial and the geographic range of these

regulations crosses four states. Activities potentially affecting

salmonids are those associated with agriculture, forestry, fishing,

mining, heavy construction, highway and street construction, logging,

wood and paper mills, electric services, water transportation, and

other industries. As many of these activities involve local, state, and

Federal oversight, including permitting, governmental activities from

the smallest towns or planning units to the largest cities will also be

impacted. The activities of some nonprofit organizations will also be

affected by these regulations.

NMFS examined in as much detail as practical the potential impact

of the regulation on a sector by sector basis. Unavailable or

inadequate data leaves a high degree of uncertainty surrounding both

the numbers of entities likely to be affected, and the characteristics

of any impacts on particular entities. The problem is complicated by

differences among entities even in the same sector as to the nature and

size of their current operations, contiguity to waterways, individual

strategies for dealing with the take prohibitions, etc.

There are no record-keeping or reporting requirements associated

with the take prohibition and, therefore, it is not possible to

simplify or tailor record keeping or reporting to be less burdensome

for small entities. Some programs for which NMFS has found it not

necessary to prohibit take involve record keeping and/or reporting to

support that continuing determination. NMFS has attempted to minimize

any burden associated with programs for which the take prohibitions are

not enacted.

In formulating this proposed rule, NMFS considered several

alternative approaches, described in more detail in the IRFA. These

included (1) Enacting a ``global'' protective regulation for threatened

species, through which section 9 take prohibitions are applied

automatically to all threatened species at the time of listing; (2) ESA

4(d) protective regulations with no limits, or only a few limits, on

the application of the take prohibition for relatively uncontroversial

activities such as fish rescue/salvage; (3) Take prohibitions in

combination with detailed prescriptive requirements applicable to one

or more sectors of activity; (4) ESA 4(d) protective regulations

similar to the existing interim 4(d) protective regulations for

Southern Oregon/Northern California coast coho, which includes four

additional limitations on the extension of the take prohibition, for

harvest plans, hatchery plans, scientific research, and habitat

restoration projects, when in conformance with specified criteria; (5)

A protective

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regulation similar to the interim rule, but with recognition of more

programs and circumstances in which application of take prohibitions is

not necessary and advisable. That is the approach taken in this

proposed rule, which limits the take prohibition for the seven items

discussed above, but would also limit application of the take

prohibition for properly screened water diversions, for routine road

maintenance in Oregon, for Portland's Parks and Recreation Department

integrated pest management program, for urban density development

activities, and for forest management (including timber harvest) in

Washington. For several of these categories (harvest, artificial

propagation, habitat restoration, and urban development) the regulation

is structured so that it allows plans or programs developed after

promulgation of the rule to be submitted to NMFS for review under the

criteria in the rule; (6) An option earlier advocated by the State of

Oregon and others, in which ESA section 9 take prohibitions would not

be applied to any activity addressed by the Oregon Plan for Salmon and

Watersheds, fundamentally deferring protections to the state. At

present, NMFS concludes that doing so would not provide sufficient

protections to the listed steelhead; and (7) Enacting no protective

regulations for threatened steelhead. That course would leave the ESUs

without any protection other than provided by ESA section 7

consultations for actions with some Federal nexus. Since NMFS' decision

to list the ESUs as threatened, identifying broad segments of human

activity as major factors in the decline of these steelhead ESUs, NMFS

could not support that approach at this time as being consistent with

the obligation to enact such protective regulations as are ``necessary

and advisable to provide for the conservation of'' the listed

steelhead.

NMFS concludes that at the present time there are no legally viable

alternative rules that would have less impact on small entities and

still fulfill the agency's obligations to protect listed salmonids. The

first four alternatives may result in unnecessary impacts on economic

activity of small entities, given NMFS' judgment that more limited

protections would suffice to conserve the species.

If you believe the alternative contained in this proposed rule will

impact your economic activity, please comment on whether there is a

preferable alternative (including alternatives not described here) that

would meet the statutory requirements of ESA section 4(d). Please

describe the impact that alternative would have on your economic

activity and why the alternative is preferable.

Executive Order 12866

In applying take prohibitions broadly to protect seven ESUs of

threatened salmonids, this proposed rule likely constitutes a

significant action for purposes of Executive Order 12866. As discussed

with respect to the Regulatory Flexibility Act analysis, data are not

available to quantify the impacts on small entities in specific sectors

of the economy; for the same reasons it is not possible to quantify

costs of avoiding take of listed fish for all portions of the economy.

However, as discussed earlier, NMFS has a clear statutory

responsibility to enact whatever protective regulations are necessart

to provide for conservation of threatened species. Abdicating that

responsibility is not an option. For several prior listings of

threatened salmonids, take prohibitions were imposed in a blanket

manner, with no limitations. In the case of these seven salmonid ESUs,

NMFS has sought an alternative to blanket imposition of the

prohibitions. NMFS has worked with a variety of jurisdictions to

identify programs or sectors of activity for which it is not necessary

and advisable to impose take prohibitions, and this proposed rule

recognizes thirteen such circumstances as limits on take prohibitions.

NMFS believes that this approach provides the benefits demanded by the

ESA (protection of threatened species) while minimizing uncertainty and

costs for sectors of the economy wherever possible.

Executive Order 13084-Consultation and Coordination with Indian Tribal

Governments

The United States has a unique legal relationship with tribal

governments as set forth in the Constitution, treaties, statutes, and

Executive Orders. In keeping with this relationship, with the mandates

of the Presidential Memorandum on Government to Government Relations

with Native American Tribal Governments (59 FR 22951), and with

Executive Order 13084, NMFS has coordinated with tribal governments and

organizations in the geographic areas affected by this proposed rule as

it was developed over the past year. For instance, NMFS has provided

these entities with the opportunity to provide input on the draft rule

and the approach taken. In addition, NMFS has met with tribal

governments and organizations and had numerous individual staff-to-

staff conversations, in an effort to give consideration to the

viewpoints of tribes and tribal organizations related to the protection

of these species.

NMFS will schedule more formal consultation opportunities with each

potentially affected tribe, to be completed during the first two months

after publication. NMFS will continue to give careful consideration to

all written or oral comments received and will continue its contacts

and discussions with interested tribes as the agency moves toward a

final rule.

Executive Order 13132-Federalism

In keeping with the intent of the Administration and Congress to

provide continuing and meaningful dialogue on issues of mutual State

and Federal interest, NMFS has conferred with numerous State, local and

other governmental entities in the course of preparing this proposed

rule. As the process continues, NMFS intends to continue engaging in

informal and formal contacts with all affected States, discussing the

rule with any interested local or regional entities and giving careful

consideration to all written or oral comments received. As one part of

that continued process, NMFS has scheduled public hearings to be held

throughout the geographic range of the affected ESUs.

NMFS' interim ESA 4(d) rule for Southern Oregon/Northern California

Coast coho ESU (62 FR 38479) was the first instance in which the agency

defined some reasonably broad categories of activity, both public and

private, for which take prohibitions were not necessary and advisable.

Since then, NMFS has continued discussions with various Oregon and

California governmental agencies and representatives involved with that

ESU, and has also sought working relationships with other States and

governmental organizations promoting salmonid restoration efforts

throughout the geographic range affected by this proposed rule. Some of

the limits in this proposed rule reflect the coordination NMFS has had

with State and local jurisdictions.

In addition to these efforts, NMFS' staff have given numerous

presentations to interagency forums, community groups, and others, and

served on a number of interagency advisory groups or task forces

considering conservation measures. Many cities, counties and other

local governments have sought guidance and consideration of their

planning efforts from NMFS, and NMFS' staff have met with them as

rapidly as our resources permit. Finally, NMFS' Sustainable Fisheries

Division staff have continued close coordination with State fisheries

agencies toward

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development of artificial propagation and harvest plans and programs

that will be protective of listed salmonids and ultimately may be

recognized within this rule. NMFS expects to continue to work with all

of these entities and others toward the clearest and best possible

final rule that protects these affected ESUs, and toward recognizing

other conservation efforts in future amendments or through other ESA

mechanisms.

Paperwork Reduction Act

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with, a collection-of-information subject to the

requirements of the Paperwork Reduction Act (PRA), unless that

collection of information displays a currently valid Office of

Management and Budget (OMB) control number.

This proposed rule contains collection-of-information requirements

subject to review and approval by OMB under the PRA. These requirements

have been submitted to OMB for approval. Public reporting burden for

this collection-of-information is estimated to average 5 hours per

response for water diverters who elect to provide documentation that

their diversion structures are screened to NMFS criteria; 20 hours per

response for cities or counties that elect to take advantage of the

ODOT routine road maintenance program; or 30 hours per response for

Metro, cities, or counties that elect to submit guidelines or

ordinances for a limit on take prohibitions for urban development.

Annual reporting for the limit regarding aiding sick, injured, stranded

salmonids is estimated to average 5 hours. Annual reporting for the

urban development limit is estimated to average 10 hours. This proposed

rule also contains a collection-of-information requirement associated

with habitat restoration activities conducted under watershed plans

that has received PRA approval from OMB under control number 0648-0230.

The public reporting burden for the approval of Watershed Plans is

estimated to average 10 hours. These estimates include any time

required for reviewing instructions, searching existing data sources,

gathering and maintaining the data needed, and completing and reviewing

the collection of information. Also, this proposed rule contains

collection-of-information requirements not subject to the PRA because

they are not requirements of general applicability, affecting fewer

than ten potential respondents.

Public comment is sought regarding: whether this proposed

collection of information is necessary for the proper performance of

the functions of the agency, including whether the information shall

have practical utility; the accuracy of the burden estimate; ways to

enhance the quality, utility, and clarity of the information to be

collected; and ways to minimize the burden of the collection-of-

information, including through the use of automated collection

techniques or other forms of information technology. Send comments on

these or any other aspects of the collection of information to NMFS

(see ADDRESSES) and to OMB at the Office of Information and Regulatory

Affairs, Office of Management and Budget, Washington, DC. 20503

(Attention: NOAA Desk Officer). Comments must be received by February

28, 2000.

National Environmental Policy Act

NMFS has completed an Environmental Assessment (EA) for this action

pursuant to the National Environmental Policy Act of 1969, 42 U.S.C.

4321 et seq. NMFS concludes that this alternative will not result in

environmentally significant negative impacts and may have several

beneficial effects, and that preparation of an Environmental Impact

Statement is not required. Copies of the EA are available (see

ADDRESSES).

List of Subjects in 50 CFR Part 223

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

Dated: December 15, 1999.

Penelope D. Dalton,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 223 is

proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

follows:

Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also

issued under; 16 U.S.C. 1361 et seq.;

2. 223.208 is added to read as follows:

Sec. 223.208 Steelhead.

(a) Prohibitions. The prohibitions of section 9 of the ESA (16

U.S.C. 1538) relating to endangered species apply to the threatened

species of salmonids listed in Sec. 223.102(a)(5) through (a)(9),

(a)(14), and (a)(15), except as provided in paragraph (b) of this

section.

(b) Limits on the take prohibitions. (1) The exceptions of section

10 of the ESA (16 U.S.C. 1539) and other exceptions under the Act

relating to endangered species, including regulations implementing such

exceptions, also apply to the threatened species of salmonids listed in

Sec. 223.102(a)(5) through (a)(9), (a)(14), and (a)(15). This section

supersedes other restrictions on the applicability of part 222 of this

chapter.

(2) The prohibitions of paragraph (a) of this section relating to

threatened species of salmonids listed in Sec. 223.102(a)(5) through

(a)(9), (a)(14), and (a)(15) do not apply to activities specified in an

application for a permit for scientific purposes or to enhance the

conservation or survival of the species, provided that the application

has been received by the Assistant Administrator for Fisheries, NOAA

(AA), no later than 30 days from date of publication of the final rule

in the Federal Register. The prohibitions of paragraph (a) of this

section apply to these activities upon the AA's rejection of the

application as insufficient, upon issuance or denial of a permit, or 6

months after effective date of the final rule, whichever occurs

earliest.

(3

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