[Federal Register Volume 64, Number 250 (Thursday, December 30, 1999)]
[Proposed Rules]
[Pages 73479-73506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33689]


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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

[[Page 73499]]

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

[[Page 73500]]

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) 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 any employee or designee 
of NMFS, the United States Fish and Wildlife Service, any Federal land 
management agency, the Idaho Department of Fish and Game, Washington 
Department of Fish and Wildlife, the Oregon Department of Fish and 
Wildlife, the California Department of Fish and Game, or any Tribe, 
when the employee or designee, acting in the course of their official 
duties, takes a threatened salmonid without a permit if such action is 
necessary to:
    (i) Aid a sick, injured, or stranded salmonid,
    (ii) dispose of a dead salmonid, or
    (iii) salvage a dead salmonid which may be useful for scientific 
study.
    (iv) Each agency acting under this limit on the prohibitions of 
paragraph (a) of this section is to report to NMFS the numbers of fish 
handled and their status, on an annual basis. A designee of the listed 
entities is any individual the Federal or state fishery agency, or 
other co-manager has authorized in writing to perform the listed 
functions.
    (4) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(5) through 
(a)(9), (a)(14), and (a)(15) do not apply to fishery harvest activities 
provided that:
    (i) Fisheries are managed in accordance with a NMFS-approved

[[Page 73501]]

Fishery Management and Evaluation Plan (FMEP) and implemented in 
accordance with a Memorandum of Agreement (MOA) between the state of 
Washington, Oregon, Idaho or California (State) and NMFS. NMFS will 
approve an FMEP only if it clearly defines its intended scope and area 
of impact, and sets forth management objectives and performance 
indicators for the plan. The plan must adequately address the following 
criteria:
    (A) Defines populations within affected ESUs, taking into account 
spatial and temporal distribution; genetic and phenotypic diversity; 
and other appropriate identifiable unique biological and life history 
traits. Populations may be aggregated for management purposes when 
dictated by information scarcity, if consistent with survival and 
recovery of the ESU. In identifying management units, the plan shall 
describe the reasons for using such units in lieu of population units 
and describe how the management units are defined, given biological and 
life history traits, so as to maximize consideration of the important 
biological diversity contained within the ESU, respond to the scale and 
complexity of the ESU, and help ensure consistent treatment of listed 
salmonids across a diverse geographic and jurisdictional range.
    (B) Determines and applies thresholds for viable and critical 
populations consistent with the concepts contained in a draft technical 
document titled ``Viable Salmonid Populations'' (NMFS, December 1999). 
Before this regulation becomes final, the Director of the Federal 
Register must approve this incorporation by reference in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the draft paper may 
be obtained on request to NMFS, Protected Resources Division, 525 NE 
Oregon St., Suite 500, Portland, OR 97232-2737, or NMFS, Office of 
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910. 
The Viable Salmonid Populations paper provides a framework for 
identifying the biological requirements of listed salmonids, assessing 
the effects of management and conservation actions, and insuring that 
such actions provide for the survival and recovery of listed species. 
Proposed management actions must recognize the significant differences 
in risk associated with these two threshold states and respond 
accordingly to minimize the risks to long-term population. Harvest 
actions impacting populations that are functioning at or above the 
viable threshold must be designed to maintain the population or 
management unit at or above that level. For populations shown with a 
high degree of confidence to be above critical levels but not yet at 
viable levels, harvest management must not appreciably slow the 
population's achievement of viable function. Harvest actions impacting 
populations that are functioning at or below critical threshold must 
not be allowed to appreciably increase genetic and demographic risks 
facing the population and must be designed to permit the population's 
achievement of viable function, unless the plan demonstrates that such 
an action will not appreciably reduce the likelihood of survival and 
recovery of the ESU in the wild despite any increased risks to the 
individual population.
    (C) Sets 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. Maximum 
exploitation rates must not appreciably reduce the likelihood of 
survival and recovery of the ESU. Management of fisheries where 
artificially propagated fish predominate must not compromise the 
management objectives for commingled naturally spawned populations.
    (D) Displays a biologically based rationale demonstrating the 
harvest management strategy will not appreciably reduce the likelihood 
of survival and recovery of the ESU in the wild, over the entire period 
of time the proposed harvest management strategy affects the 
population, including effects reasonably certain to occur after the 
proposed actions cease.
    (E) Includes effective monitoring and evaluation programs to assess 
compliance, effectiveness and parameter validation. At a minimum, 
harvest monitoring programs must collect catch and effort data, 
information on escapements, and information on biological 
characteristics such as age, fecundity, size and sex data, and 
migration timing.
    (F) Provides for evaluating monitoring data and making any 
revisions of assumptions, management strategies, or objectives that 
data shows are needed.
    (G) Provides for effective enforcement and education. Coordination 
among involved jurisdictions is an important element in ensuring 
regulatory effectiveness and coverage.
    (H) Includes 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.
    (I) Is consistent with plans and conditions set within any Federal 
court proceeding with continuing jurisdiction over tribal harvest 
allocations.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its fisheries and provides to NMFS on an annual basis a 
report summarizing this information, as well as the implementation and 
effectiveness of the FMEP. The State shall provide NMFS with access to 
all data and reports prepared concerning the implementation and 
effectiveness of the FMEP.
    (iii) The state confers annually with NMFS on their fishing 
regulation changes to ensure congruity with the approved FMEP.
    (iv) Prior to approving a new or amended FMEP, NMFS will publish 
notification in the Federal Register announcing its availability for 
public review and comment. Such an announcement will provide for a 
comment period on the draft FMEP of not less than 30 days.
    (v) NMFS approval of a plan shall be a written approval by NMFS' 
Northwest or Southwest Regional Administrator, as appropriate.
    (vi) On a regular basis, NMFS will evaluate the effectiveness of 
the program in protecting and achieving a level salmonid productivity 
commensurate with conservation of the listed salmonids. If it is not, 
NMFS will identify ways in which the program needs to be altered or 
strengthened. If the responsible agency does not make changes to 
respond adequately to the new information, NMFS will publish 
notification in the Federal Register announcing its intention to 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 
subject the activities to all ESA section 9 take prohibitions.
    (5) 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 activity associated with 
artificial propagation programs provided that:
    (i) A state or Federal Hatchery and Genetics Management Plan (HGMP) 
has been approved by NMFS as meeting the following criteria:
    (A) The plan has clearly stated goals, performance objectives, and 
performance indicators that indicate the purpose of the program, its 
intended results, and measurements of its performance in meeting those 
results. Goals shall address whether the program is intended to meet

[[Page 73502]]

conservation objectives, contributing to the ultimate sustain ability 
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 determined.
    (B) The plan utilizes the concepts of viable and critical salmonid 
population threshold, consistent with the concepts contained in a draft 
technical document titled ``Viable Salmonid Populations'' (NMFS, 
December 1999). Before this regulation becomes final, the Director of 
the Federal Register must approve this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
obtained on request to NMFS, Protected Resources Division, 525 NE 
Oregon St., Suite 500, Portland, OR 97232-2737, or NMFS, Office of 
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910. 
Listed salmonids may be purposefully taken for broodstock purposes only 
if the donor population is currently at or above the viable threshold 
and the collection will not impair its function; if the donor 
population is not currently viable but the sole objective of the 
current collection program is to enhance the propagation or survival of 
the listed ESU; or if the donor population is shown with a high degree 
of confidence to be above critical threshold although not yet 
functioning at viable levels, and the collection will not appreciably 
slow the attainment of viable status for that population.
    (C) Taking into account health, abundance and trends in the donor 
population, broodstock collection programs reflect appropriate 
priorities. The primary purpose of broodstock collection programs of 
listed species is to reestablish indigenous salmonid populations for 
conservation purposes. Such programs include restoration of similar, 
at-risk populations within the same ESU, and reintroduction of at-risk 
populations to underseeded habitat. After the species' conservation 
needs are met, and when consistent with survival and recovery the 
species, broodstock collection programs may be authorized by NMFS for 
secondary purposes, such as to sustain tribal, recreational and 
commercial fisheries.
    (D) The HGMP shall include protocols to address fish health, 
broodstock collection, broodstock spawning, rearing and release of 
juveniles, deposition of hatchery adults, and catastrophic risk 
management.
    (E) The HGMP shall evaluate, minimize, and account for the 
propagation program's genetic and ecological effects on natural 
populations, including disease transfer, competition, predation, and 
genetic introgression caused by straying of hatchery fish.
    (F) The HGMP will 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 
conserve listed salmonids.
    (G) Adequate artificial propagation facilities exist to properly 
rear progeny of naturally spawned broodstock to maintain population 
health and diversity, and to avoid hatchery-influenced selection or 
domestication.
    (H) Adequate monitoring and evaluation exist to detect and evaluate 
the success of the hatchery program and any risks to or impairment of 
recovery of the listed ESU.
    (I) The HGMP provides for evaluating monitoring data and making any 
revisions of assumptions, management strategies, or objectives that 
data shows are needed;
    (J) An MOA or some other formal agreement is in place between the 
state and NMFS, to ensure proper implementation of the HGMPs and 
reporting of effects and results. For Federally operated or funded 
hatcheries, the section 7 consultation will achieve this purpose.
    (K) The HGMP is consistent with plans and conditions set within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its hatchery program and provides to NMFS on an annual 
basis a report summarizing this information, as well as the 
implementation and effectiveness of the HGMP. The state shall provide 
NMFS with access to all data and reports prepared concerning the 
implementation and effectiveness of the HGMP.
    (iii) The state confers with NMFS on an annual basis regarding 
intended collections of listed broodstock to ensure congruity with the 
approved HGMP.
    (iv) Prior to final approval of an HGMP, NMFS will publish 
notification in the Federal Register announcing its availability for 
public review and comment for a period of at least 30 days.
    (v) NMFS approval of a plan shall be a written approval by NMFS' 
Northwest or Southwest Region Regional Administrator, as appropriate.
    (vi) On a regular basis, NMFS will evaluate the effectiveness of 
the HGMP in protecting and achieving a level salmonid productivity 
commensurate with conservation of the listed salmonids. If it is not, 
NMFS will identify ways in which the program needs to be altered or 
strengthened. If the responsible agency does not make changes to 
respond adequately to the new information, NMFS will publish 
notification in the Federal Register announcing its intention to 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 
subject the activities to all ESA section 9 take prohibitions.
    (6) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(7), (a)(8), 
(a)(14), and (a)(15) do not apply to actions undertaken in compliance 
with a resource management plan developed jointly by the States of 
Washington and/or Oregon and the Tribes (joint plan) within the 
continuing jurisdiction of U.S. v. Washington or U.S. v. Oregon, the 
on-going Federal Court proceeding to enforce and implement reserved 
treaty fishing rights, provided that:
    (i) The Secretary has determined pursuant to 50 CFR Sec. 223.209(b) 
(the limit on take prohibitions for tribal resource management plans) 
and the government-to-government processes therein that implementing 
and enforcing the joint tribal/state plan will not appreciably reduce 
the likelihood of survival and recovery of affected threatened ESUs.
    (ii) The joint plan will be implemented and enforced within U.S. v. 
Washington or U.S. v. Oregon.
    (iii) In making that determination for a joint plan, the Secretary 
has taken comment on how any fishery management plan addresses the 
criteria in 223.208(b)(4), or how any hatchery and genetic management 
plan addresses the criteria in 223.208(b)(5).
    (iv) The Secretary shall publish notice in the Federal Register of 
any determination whether or not a joint plan will appreciably reduce 
the likelihood of survival and recovery of affected threatened ESUs, 
together with a discussion of the biological analysis underlying that 
determination.
    (7) The prohibitions of paragraph (a) of this section relating to 
threatened

[[Page 73503]]

species of salmonids listed in Sec. 223.102(a)(5) through (a)(9), 
(a)(14), and (a)(15) do not apply to activity associated with 
scientific research provided that:
    (i) Scientific research activities involving purposeful take is 
conducted by employees or contractors of the Oregon Department of Fish 
and Wildlife (ODFW), Washington Department of Fish and Wildlife (WDFW), 
Idaho Department of Fish and Game (IDFG), or the California Department 
of Fish and Game (CDFG)(Agency), or as part of a coordinated monitoring 
and research program overseen by that Agency.
    (ii) The Agency provides NMFS with a list of all scientific 
research activities involving direct take planned for the coming year 
for NMFS' review and approval, including an estimate of the total 
direct take that is anticipated, a description of the study design 
including a justification for taking the species and a description of 
the techniques to be used, and a point of contact.
    (iii) The Agency annually provides NMFS with the results of 
scientific research activities directed at threatened salmonids, 
including a report of the direct take resulting from the studies and a 
summary of the results of such studies.
    (iv) Scientific research activities that may incidentally take 
threatened salmonids are either conducted by Agency personnel, or are 
in accord with a permit issued by the Agency.
    (v) The Agency provides NMFS annually, for its review and approval, 
a report listing all scientific research activities they conduct or 
permit that may incidentally take threatened salmonids during the 
coming year. Such reports shall also contain the amount of incidental 
take of threatened salmonids occurring in the previous year's 
scientific research activities and a summary of the results of such 
research.
    (vi) Electrofishing in any body of water known or suspected to 
contain threatened salmonids is conducted in accord with ``Guidelines 
for Electrofishing Waters Containing Salmonids Listed Under the 
Endangered Species Act''.
    (vii) NMFS' approval of a plan shall be a written approval by NMFS' 
Northwest or Southwest Region Regional Administrator, as appropriate.
    (8) 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 habitat restoration 
activities, as defined in paragraph (b)(8)(iii) of this section, 
provided that:
    (i) The States of Washington, Oregon, Idaho or California (State) 
certify to NMFS in writing the activity is part of a watershed 
conservation plan, where:
    (A) NMFS has certified to the state in writing that the State's 
watershed conservation plan guidelines meet the following standards. 
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;
    (6) Use best available science and technology of habitat 
restoration, 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 or 
geomorphology;
    (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;
    (10) Assure that the safeguards required in watershed conservation 
plans will be funded and implemented;
    (B) The state has made a written finding that the watershed 
conservation plan, including its provisions for clearing projects with 
other agencies, is consistent with those state watershed conservation 
plan guidelines.
    (C) NMFS concurs in writing with the state finding.
    (ii) Until a watershed conservation plan is approved under 
paragraph (b)(8)(i) of this section, or until 2 years after publication 
of the final rule in the Federal Register, whichever occurs first, take 
prohibitions shall not apply to the following habitat restoration 
activities if any in-water work is consistent with 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. The work must 
be implemented in compliance with the listed conditions and guidance:
    (A) Riparian zone planting or fencing. Conditions include no in-
water work; no sediment runoff to stream; native vegetation only; fence 
placement in Oregon consistent with standards in the Oregon Aquatic 
Habitat Restoration and Enhancement Guide (1999).
    (B) Livestock water development off-channel. 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 not 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.
    (C) Large wood (LW) placement. Conditions: Does not apply to LW 
placement associated with basal area credit in Oregon. No heavy 
equipment allowed in stream. 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 section 7 consultation 
or a section 10 permit)(biodegradable manila/sisal rope may be used for 
temporary stabilization). Wood 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 (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).
    (D) 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; and NMFS Southwest Region Culvert Policy (1999).

[[Page 73504]]

    (E) 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).
    (F) 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.
    (iii) ``Habitat restoration activity'' is defined as an activity 
whose primary purpose is to restore natural aquatic or riparian habitat 
conditions or processes. ``Primary purpose'' means the activity would 
not be undertaken but for its restoration purpose.
    (iv) Prior to approving watershed conservation plan guidelines 
under paragraph (7)(i) of this section, NMFS will publish notification 
in the Federal Register announcing the availability of the draft 
guidelines for public review and comment. Such an announcement will 
provide for a comment period on the draft guidelines of not less than 
30 days.
    (v) NMFS approval of a plan shall be a written approval by NMFS' 
Northwest or Southwest Region Regional Administrator, as appropriate.
    (vi) On a regular basis, NMFS will evaluate the effectiveness of a 
state's watershed plan guidelines in assuring plans that protect a 
level salmonid productivity commensurate with conservation of the 
listed salmonids. If insufficient, NMFS will identify ways in which the 
guidelines or program needs to be altered or strengthened. If the state 
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 subject the activities to all section 9 take prohibitions.
    (vii) Before this regulation becomes final, the Director of the 
Federal Register must approve the incorporation by reference of each of 
the state guidance documents listed in this habitat restoration limit 
on the take prohibitions in accordance with U.S.C.552(a) and 1 CFR part 
51. The documents are: Oregon Aquatic Habitat Restoration and 
Enhancement Guide (1999; A Guide to Placing Large Wood in Streams, 
Oregon Department of Forestry and Department of Fish and Wildlife 
(1995); WDFW's Fish Passage Design at Road Culverts, March 3, 1999; and 
Oregon Road/Stream Crossing Restoration Guide; Spring 1999. Copies of 
the documents may be obtained on request to NMFS, Protected Resources 
Division, 525 NE Oregon St., Suite 500, Portland, OR 97232-2737, or 
NMFS, Office of Protected Resources, 1315 East-West Highway, Silver 
Spring, MD 20910.
    (9) 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 the physical diversion of 
water from a stream or lake, provided that:
    (i) NMFS' engineering staff has agreed in writing that the 
diversion facility is screened, maintained and operated in compliance 
with Juvenile Fish Screen Criteria, National Marine Fisheries Service, 
Northwest Region, Revised February 16, 1995, with Addendum of May 9, 
1996, or in California with NMFS' Southwest Region ``Fish Screening 
Criteria for Anadromous Salmonids, January 1997'' or any subsequent 
revision. Before this regulation becomes final, the Director of the 
Federal Register must approve this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
obtained on request to NMFS, Protected Resources Division, 525 NE 
Oregon St., Suite 500, Portland, OR 97232-2737, or NMFS, Office of 
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910.
    (ii) The owner or manager of the diversion will allow any NMFS 
engineer, biologist or Authorized officer access to the diversion 
facility for purposes of inspection and determination of continued 
compliance with the criteria.
    (iii) This limit on the prohibitions of paragraph (a) of this 
section does not encompass any impacts of reduced flows resulting from 
the diversion, or caused during installation of the diversion device. 
These impacts remain subject to the prohibition on take of listed 
salmonids.
    (10) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(7), (a)(8), 
(a)(14) and (a)(15) do not apply to routine road maintenance activities 
provided that:
    (i) The activity results from routine road maintenance activity by 
Oregon Department of Transportation, county or city employees that 
complies with the Oregon Department of Transportation's Maintenance 
Management System Water Quality and Habitat Guide (June, 1999). Before 
this regulation becomes final, the Director of the Federal Register 
must approve this incorporation by reference in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained on request to 
NMFS, Protected Resources Division, 525 NE Oregon St., Suite 500, 
Portland, OR 97232-2737, or NMFS, Office of Protected Resources, 1315 
East-West Highway, Silver Spring, MD 20910.
    (ii) Neither pesticide and herbicide spraying nor ODOT dust 
abatement are included within this exception, even if in accord with 
the state's guidance.
    (iii) Prior to implementing any changes to the 1999 Guide the 
Oregon Department of Transportation will provide NMFS a copy of the 
proposed change for review and approval as within this exception.
    (iv) Prior to approving any change in the 1999 Guide, NMFS will 
publish notification in the Federal Register announcing the 
availability of the draft changes for public review and comment. Such 
an announcement will provide for a comment period on the draft changes 
of not less than 30 days.
    (v) Any city or a county in Oregon desiring its routine road 
maintenance activities to be within this exception first enters a 
memorandum of agreement with NMFS committing to apply the management 
practices in the guide, detailing how it will assure adequate training, 
tracking, and reporting, and describing in detail any dust abatement 
practices it requests to be covered.
    (vi) On a regular basis, NMFS will evaluate the effectiveness of 
the program in protecting and achieving habitat function commensurate 
with conservation of the listed salmonids. If it is not, NMFS will 
identify ways in which the program needs to be altered or strengthened. 
Changes may be required if the program is not protecting desired 
habitat functions, or where even with the habitat characteristics and 
functions originally targeted, habitat is not supporting population 
productivity levels needed to conserve the ESU. If ODOT does not make 
changes to respond adequately to the new information, NMFS will publish

[[Page 73505]]

notification in the Federal Register announcing its intention to impose 
take prohibitions on activities associated with the 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 
subject the activities to all section 9 take prohibitions.
    (vii) NMFS' approval of city or county programs following the ODOT 
program, or of any amendments, shall be a written approval by NMFS' 
Northwest or Southwest Region Regional Administrator, as appropriate.
    (11) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(7), (a)(8), 
(a)(14), and (a)(15) do not apply to activities within the 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 provided that:
    (i) Use of only the following chemicals is included within this 
limit on the take prohibitions: Glyphosphate products, Garlon 3A, 
Surfactant R-11, Napropamide, Cutrine Plus, and Aquashade.
    (ii) Any chemical use is initiated in accord with the priorities 
and decision processes of the Department's Pest Management policy 
(March 27, 1997).
    (iii) Any chemical use within a 25 ft (7.5 m) buffer complies with 
the buffer application constraints contained in PP&R' Waterways Pest 
Management Policy, (April 4, 1999).
    (iv) Portland Parks and Recreation Department will regularly assess 
whether monitoring information, new scientific studies, or new 
techniques cause it to amend the program or change the list of 
chemicals covered by this limit on the take prohibitions. Before NMFS 
approves any change to qualify as within this limit on the take 
prohibitions, 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.
    (v) On a regular basis, NMFS will evaluate the effectiveness of the 
program in protecting and achieving habitat function commensurate with 
conservation of the listed salmonids. If it is not, NMFS will identify 
ways in which the program needs to be altered or strengthened. Changes 
may be required if the program is not protecting desired habitat 
functions, or where even with the habitat characteristics and functions 
originally targeted, habitat is not supporting population productivity 
levels needed to conserve the ESU. If PP&R 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 the 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 
subject the activities to all section 9 take prohibitions.
    (vi) NMFS' approval of amendments shall be a written approval by 
NMFS Northwest Regional Administrator. Before this regulation becomes 
final, the Director of the Federal Register must approve the 
incorporation by reference of Portland's Parks and Recreation 
Department's Waterways Pest Management Program (March, 1997), including 
its Waterways Pest Management Policy dated April 4, 1999, in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of those documents may 
be obtained on request to NMFS, Protected Resources Division, 525 NE 
Oregon St., Suite 500, Portland, OR 97232-2737, or NMFS, Office of 
Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910.
    (12) 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 urban development 
activities provided that:
    (i) Such development occurs pursuant to city or county ordinances 
that NMFS has agreed in writing are adequately protective, or within 
the jurisdiction of the Metro regional government in Oregon, with 
ordinances that Metro has found comply with an Urban Growth Management 
Functional Plan (Functional Plan) that NMFS has agreed in writing are 
adequately protective. For NMFS to find ordinances or the Functional 
Plan adequate, they must address the following issues in sufficient 
detail and in a manner that assures that urban developments will 
contribute to conserving listed salmonids:
    (A) Avoid inappropriate areas such as unstable slopes, wetlands, 
areas of high habitat value, and similarly constrained sites.
    (B) Avoid stormwater discharge impacts to water quality and 
quantity, or to the hydrograph of the watershed.
    (C) Require adequate riparian buffers around all perennial and 
intermittent streams, lakes or wetlands.
    (D) Avoid stream crossings by roads wherever possible, and where 
one must be provided, minimize impacts through choice of mode, sizing, 
placement.
    (E) Protect historic stream meander patterns and channel migration 
zones; avoid hardening of stream banks.
    (F) Protect wetlands and wetland functions.
    (G) Preserve the hydrologic capacity of any intermittent or 
permanent stream to pass peak flows.
    (H) Landscape to reduce need for watering and application of 
herbicides, pesticides and fertilizer.
    (I) Prevent erosion and sediment run-off during construction.
    (J) 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, and that any new water 
diversions are positioned and screened in a way that prevents injury or 
death of salmonids.
    (K) Provide all necessary enforcement, funding, reporting, and 
implementation mechanisms.
    (L) The development complies with all other state and Federal 
environmental or natural resource laws and permits.
    (ii) The city, county or Metro will provide NMFS with annual 
reports regarding implementation and effectiveness of the ordinances, 
including any water quality monitoring information the jurisdiction has 
available, an aerial photo (or some other graphic display) of each 
urban development or urban expansion area at sufficient detail to 
demonstrate the width and vegetative condition of riparian set-backs, 
success of stormwater retention and other techniques; and a summary of 
any flood damage, maintenance problems, or other issues.
    (iii) Prior to determining that city or county ordinances or 
Metro's Functional Plan are adequate, NMFS will publish notification in 
the Federal Register announcing the availability of the ordinances or 
Functional Plans for public review and comment. The comment period will 
be not less than 30 days.
    (iv) If new information indicates need to modify ordinances or 
Metro's Functional Plan that NMFS has previously found adequate, the 
city, county or Metro will work with NMFS to draft appropriate 
amendments and NMFS will use the processes of paragraph (b)(12)(iii) to 
determine whether the modified ordinances or Functional Plan are 
adequate. If at any time NMFS determines that compliance problems or 
new information show that the ordinances or guidelines are not 
achieving desired habitat functions, or where even with the habitat 
characteristics and functions originally

[[Page 73506]]

targeted, habitat is not supporting population productivity levels 
needed to conserve the ESU, NMFS will notify the jurisdiction. If the 
jurisdiction 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 subject the activities to all section 9 
take prohibitions.
    (v) NMFS approval of ordinances shall be a written approval by NMFS 
Northwest or Southwest Region Regional Administrator, as appropriate.
     (13) The prohibitions of paragraph (a) of this section relating to 
threatened salmonids listed in Sec. 223.102 (a)(7) (a)(8), and (a)(15) 
do not apply to non-federal forest management activities conducted in 
the State of Washington provided that:
    (i) The action is in compliance with forest practice regulations 
implemented by the Washington Forest Practices Board that NMFS has 
found are at least as protective of habitat functions as are the 
regulatory elements of the Forests and Fish Report dated April 29, 
1999, and submitted to the Forest Practices Board by a consortium of 
landowners, tribes, and state and Federal agencies. Before this 
regulation becomes final, the Director of the Federal Register must 
approve this incorporation by reference in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. Copies of the report may be obtained on 
request to NMFS, Protected Resources Division, 525 NE Oregon St., Suite 
500, Portland, OR 97232-2737, or NMFS, Office of Protected Resources, 
1315 East-West Highway, Silver Spring, MD 20910.
    (ii) All other elements of the Forests and Fish Report are being 
implemented.
    (iii) Actions involving use of herbicides, pesticides or fungicides 
are not included within this exception.
    (iv) Actions taken under alternate plans are not within this limit 
on the take prohibitions.
    (v) Prior to determining that regulations adopted by the Forest 
Practice Board are at least as protective as the elements of the 
Forests and Fish Report, NMFS will publish notification in the Federal 
Register announcing the availability of the report and regulations for 
public review and comment.
    (vi) On a regular basis, NMFS will evaluate the effectiveness of 
the program in protecting and achieving habitat function commensurate 
with conservation of the listed salmonids. If it is not adequate, NMFS 
will identify ways in which the program needs to be altered or 
strengthened. Changes may be required if the program is not protecting 
desired habitat functions, or where even with the habitat 
characteristics and functions originally targeted, habitat is not 
supporting population productivity levels needed to conserve the ESU. 
If Washington does not make changes to respond adequately to the new 
information, NMFS will publish notification in the Federal Register 
announcing its intention to impose take prohibitions on activities 
associated with the 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 subject the activities to all ESA 
section 9 take prohibitions.
    (vii) NMFS approval of a regulations shall be a written approval by 
NMFS Northwest or Southwest Regional Administrator, as appropriate.
[FR Doc. 99-33689 Filed 12-23-99; 2:52 pm]
BILLING CODE 3510-22-F