[Federal Register Volume 65, Number 1 (Monday, January 3, 2000)]
[Proposed Rules]
[Pages 170-196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33858]



[[Page 169]]



Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 223



Endangered and Threatened Species; Proposed Rule Governing Take of 
Seven Threatened Evolutionarily Significant Units (ESUs); Proposed Rule

  Federal Register / Vol. 65, No. 1 / Monday, January 3, 2000 / 
Proposed Rules  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 991207323-9323-01; I.D. No 092199A]
RIN 0648-AM59


Endangered and Threatened Species; Proposed Rule Governing Take 
of Seven Threatened Evolutionarily Significant Units (ESUs) of West 
Coast Salmonids: Oregon Coast Coho; Puget Sound, Lower Columbia and 
Upper Willamette Chinook; Hood Canal Summer-run and Columbia River 
Chum; and Ozette Lake Sockeye

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 salmonid ESUs. Note that this rule applies only to 
the identified coho, chinook, chum, and sockeye 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 one coho salmon ESU, three chinook salmon ESUs, two 
chum salmon ESUs, and one sockeye salmon ESU. 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 proposed rule must be received at the 
appropriate address (see ADDRESSEES), no later than 5:00 p.m., eastern 
standard time, on March 3, 2000. Public hearings on this proposed 
action have been scheduled. See SUPPLEMENTARY INFORMATION for dates and 
times of public hearings.

ADDRESSES: Written comments and requests for information should be sent 
to NMFS, Protected Resources Division, 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.
    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.

SUPPLEMENTARY INFORMATION:

Background

    On August 10, 1998 (63 FR 42587), NMFS, on behalf of the Secretary, 
published a final rule listing the Oregon Coast (OC) ESU of coho 
salmon(Oncorhynchus kisutch, or O. kisutch)in Oregon as threatened. By 
a rule published on March 24, 1999 (64 FR 14308), NMFS listed as 
threatened the Puget Sound (PS), Lower Columbia River (LCR) and Upper 
Willamette River (UWR) ESUs of west coast chinook salmon (Oncorhynchus 
tshawytscha, or O. tshawytscha) in Washington and Oregon. By a rule 
published on March 25, 1999 (64 FR 14508), NMFS listed as threatened 
the Hood Canal Summer-run (HCS) and Columbia River (CR) chum salmon 
ESUs (Oncorhynchus keta) in Washington and Oregon. By a rule published 
on March 25, 1999 (64 FR 14528), NMFS listed as threatened the Ozette 
Lake ESU of sockeye salmon (Oncorhynchus nerka) in Washington. Those 
final rule listing notifications describe the background of the listing 
actions and provides a summary of NMFS' conclusions regarding the 
status of the threatened coho, chinook, chum and sockeye salmon ESUs.
    Section 4(d) of the ESA provides that whenever a species is listed 
as threatened, the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of the species. 
Such protective regulations may include any or all of the prohibitions 
that apply automatically to protect endangered species under ESA 
section 9(a). 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 or 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 
chinook, coho, chum and sockeye are at risk of extinction primarily 
because their populations have been reduced by human ``take''. West 
Coast populations of these salmonids have been depleted by take 
resulting from harvest, past and ongoing destruction of freshwater and 
estuarine habitats, poor hatchery practices, hydropower development, 
and other causes. ``Factors Contributing to the Decline of Chinook 
Salmon: An Addendum to the 1996 West Coast Steelhead Factors for 
Decline Report'' (NMFS, 1998) concludes that all of the factors 
identified in section 4(a)(1) of the ESA have played some role in the 
decline of the species. The report identifies destruction and 
modification of habitat, overutilization, and hatchery effects as 
significant reasons for the decline. While the most influential factors 
differ from ESU to ESU and among chinook, coho, sockeye, and chum, 
habitat and harvest impacts have been important for all. 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 ESUs of West Coast steelhead that are impacted by similar 
risks associated with human-caused take have also recently been listed 
as threatened, and section 4(d) regulations

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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 these 
programs to protect and conserve listed salmonids. NMFS believes that 
with appropriate safeguards, many such activities can be specifically 
tailored to minimize impacts on listed 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 salmonid. 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 more 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.
    NMFS anticipates consideration in the Spring of 2000 of a 
comprehensive proposal for the conservation of salmonids by a broad 
array of county, municipal and other local governments whose effects on 
listed salmonids are interrelated because of their shared watersheds, 
transportation and water systems, or growth management strategies. This 
proposal is being developed by jurisdictions representing a majority of 
the population within King, Snohomish and Pierce counties in Washington 
State which includes among its many municipal participants the cities 
of Seattle, Tacoma, Everett and Bellevue. In addition to its 
conservation objectives, the completed proposal would be intended to 
allow NMFS to determine that it is not necessary or advisable to apply 
take prohibitions to a broad array of related governmental activities. 
An aggressive schedule has been established for the completion of this 
proposal by April 2000.
    NMFS believes it beneficial to conservation planning by local 
governments generally to seek comment soon on the framework of the 
conservation program. NMFS will seek comment on this framework by 
sending notification of the availability of that framework to the 
Federal Register within 30 days of receiving a framework that NMFS 
finds acceptable in concept.
    In April 2000, NMFS anticipates seeking comment on the completed 
program through a proposal by NMFS to limit take prohibitions for 
related activities prior to the application of such prohibitions to the 
Puget Sound ESU.

Substantive Content of Proposed Regulation

    NMFS has not previously proposed any protective regulations for six 
of the salmonid ESUs subject to this proposed rule. When NMFS first 
proposed the Oregon Coast coho for listing (60 FR 38026, July 25, 
1995), it also proposed to apply the prohibitions of ESA section 9(a) 
to that ESU. 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 the Oregon Coast coho ESU, in order to 
have the benefit of public comment before enacting final protective 
regulations.
    NMFS concludes that at this time, the take prohibitions generally 
applicable for endangered species are necessary and advisable for 
conservation of these threatened ESUs, but that take of listed salmon 
in the seven listed ESUs 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 
ESUs, or are governed by a program that limits impacts on listed 
salmonids 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 
these seven threatened salmonid ESUs, but not to apply the take 
prohibitions to the 13 programs described in this document as meeting 
that level of protection. Of course, the entity responsible for any 
habitat-related programs might equally choose to seek an ESA section 10 
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; 
(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 
programs; (6) activities in compliance with joint tribal/state plans 
developed within United States v. Washington or 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 these 
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,

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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 
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.
    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 a threatened ESU. 
That proposal is published elsewhere in the Proposed Rules section of 
this Federal Register issue.

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 this rule on its 
Northwest region web site 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 ESA 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 proposed rule. These are the categories of activity 
upon which NMFS enforcement resources are likely to concentrate.
    A. Except as provided in this proposed 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 proposed rule (unless within an 
``exception'' provided in this proposed 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

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Recovery Board, the Willamette Restoration Initiative, and many other 
local and regional governmental efforts, including that in the Tri-
county area around Seattle, 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 
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 proposed 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)(2) 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 ESA 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 
ADDRESSES). Once fully developed (including public and peer review), 
this paper will provide additional guidance in evaluating programs for 
eligibility under this ESA 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 
here. Further, while the types of information identified above may be 
useful in defining independent populations within ESUs, other methods 
may exist for identifying biologically meaningful population units 
consistent with the definitions adopted here. 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.

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Finally, assessing impacts on a 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 
means. Viable abundance levels may be determined, based on historic 
abundance levels or habitat capacity of 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 that 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 following descriptions 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 limits on 
applicability of the take prohibitions to a given ESU is accomplished 
through citation to the Code of Federal Regulations (CFR) enumeration 
of threatened marine and anadromous species, 50 CFR 223.102. For the 
convenience of readers of this notice, 50 CFR 223.102 refers to 
threatened salmonid ESUs through the following designations:
    (a)(1) Snake River spring/summer chinook
    (a)(2) Snake River fall chinook
    (a)(3) Central California Coast coho
    (a)(4) Southern Oregon/Northern California Coast coho

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    (a)(5) Central California Coast steelhead
    (a)(6) South-Central California Coast steelhead
    (a)(7) Snake River Basin steelhead
    (a)(8) Lower Columbia River steelhead
    (a)(9) Central Valley, California steelhead
    (a)(10) Oregon Coast coho
    (a)(12) Hood Canal summer-run chum
    (a)(13) Columbia River chum
    (a)(14) Upper Willamette River steelhead
    (a)(15) Middle Columbia River steelhead
    (a)(16) Puget Sound chinook
    (a)(17) Lower Columbia River chinook
    (a)(18) Upper Willamette River chinook
    (a)(19) Ozette Lake sockeye

Issue 5: Regular Evaluation of Limits on 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 Oregon Coast coho; PS, LCR and UWR chinook; 
HCS and CR chum; and Ozette Lake sockeye 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 the effective date of a final rule. The ESA 
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 from effective date of the final rule, 
whichever occurs earliest. It is in the interests of salmonid 
conservation not to disrupt ongoing research and conservation projects, 
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, fisheries for non-listed 
salmonids and resident game fish species will have acceptably small 
impacts on threatened salmonids to allow for the conservation of those 
listed salmonids, as long as state fishery management programs are 
specifically tailored to meet certain criteria. This proposed rule 
provides a mechanism whereby NMFS may limit application of take 
prohibitions to 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 salmonids 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 salmonids 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 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 listed 
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

[[Page 176]]

public review of FMEPs. Therefore, prior to approving new or amended 
FMEPs, 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 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 threatened salmonids. 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 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 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 either 
defined 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 to 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 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.
    (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 nonlisted fish, and abundance 
trends. Surveys of rearing areas and downstream migrant

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traps can provide estimates of production and juvenile abundance 
trends. Estimates of the number of hatchery-produced salmonids 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) Be consistent with plans and conditions set within any Federal 
Court proceeding with continuing jurisdiction over tribal harvest 
allocations. Agreements adopted within the United States v. Washington 
proceeding, such as the Puget Sound Management Plan (originally 
approved by the court in 1977; most recent amendment approved by the 
court in United States v. Washington, 626 F. Supp. 1405, 1527 (1985, 
W.D. Wash.) mandate that harvest and artificial production management 
actions are agreed to and coordinated between the State of Washington 
and the Western Washington treaty tribes. Where joint agreement is 
required, such plans will fall under the provisions of paragraphs 
(b)(6)(i)-(iv) of section 223.203 contained in this proposed rule.

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 salmonids 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 a threatened salmonid ESU. 
The state or Federal agency would develop a Hatchery and Genetic 
Management Plan (HGMP) containing specific management measures that 
will minimize and adequately limit impacts on listed salmonids 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 threatened salmonids.

Process for Developing Hatchery and Genetic Management Plans

    NMFS will evaluate the effectiveness of state or Federal HGMPs in 
addressing the criteria here. 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 to 
broodstock collection.
    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 take 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 
taken 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 current objective of 
the 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, recreational and commercial fisheries consistent with recovery 
and maintenance of naturally-spawned populations. The primary purpose 
of broodstock collection programs must be to reestablish local 
indigenous 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.

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    (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.
    (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. Agreements 
adopted within the United States v. Washington proceeding, such as the 
Puget Sound Management Plan (originally approved by the court in 1977; 
most recent amendment approved by the court in United States v. 
Washington, 626 F. Supp. 1405, 1527 (1985, W.D. Wash.) mandate that 
harvest and artificial production management actions are agreed to and 
coordinated between the State of Washington and the Western Washington 
treaty tribes. Where joint agreement is required, such plans will fall 
under the provisions of paragraphs (b)(6)(i)-(iv) of section 223.203 of 
this proposed rule.

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.
    In its listing decisions for the seven ESUs subject to this 
notification, NMFS determined that it was not necessary to consider the 
artificially propagated progeny of intentional hatchery/naturally 
spawned and naturally spawned/naturally spawned crosses as listed 
(except in cases where NMFS has listed the hatchery population as 
well). NMFS believes it desirable to incorporate naturally spawned fish 
into the hatchery populations to ensure that their genetic and life 
history characteristics do not diverge significantly from the naturally 
spawned populations. Prior to any intentional use of threatened 
salmonids for hatchery broodstock, an approved HGMP must be in place to 
ensure that native, naturally spawned populations are conserved.

Limits on the Take Prohibitions for Joint Tribal/State Plans 
Developed within United States v. Washington or United States v. 
Oregon

    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 a threatened ESU. 
That proposal is published elsewhere in the Proposed Rules section of 
this Federal Register issue. Non-tribal salmonid management within the 
Puget Sound and Columbia River areas is profoundly influenced by the 
tribal rights of numerous Indian tribes in the Northwest and must be 
responsive to the court proceedings interpreting and/or defining those 
tribal interests. Various orders of the United States v. Washington 
court, such as the Puget Sound Salmon Management Plan (originally 
approved by the court in 1977; most recent amendment approved by the 
court in United States v. Washington, 626 F. Supp. 1405, 1527 (1985, 
W.D. Wash.) mandate that many aspects of fishery management, including, 
but not limited to, harvest and artificial production actions be agreed 
to and coordinated between the State of Washington and the Western 
Washington Treaty tribes. The State of Washington, affected tribes, 
other interests, and affected Federal agencies are all working toward 
an integrated set of management strategies and strictures that will 
respond to the biological, legal and practical realities of salmonid 
issues in Puget Sound, including tribal rights and NMFS' ESA 
responsibilities to conserve listed species. Similar principles are 
equally applicable within the Columbia River basin where the States of 
Oregon, Washington, Idaho, and five treaty tribes work within the 
framework and jurisdiction of United States v. Oregon.
    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 jursidiction 
of United States v. Washington, or 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 
exception (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 implemenation 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. 223.203(b)(4) of this proposed rule, or how any hatchery and 
genetic management plan addresses the criteria in Sec. 223.203(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 Washington and Oregon conduct or permit a wide range of 
scientific research activities on various fisheries, including 
monitoring and other studies on salmonids which occur in the seven 
threatened salmonid ESUs considered in this proposed rule. NMFS finds 
these activities vital for improving our understanding of the status 
and risks facing salmonids 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 document, 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 
salmonids 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,

[[Page 179]]

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 an ESA 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 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. 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

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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 are 
major contributing factors 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 Washington Department of Fish and 
Wildlife's (WDFW) Fish Passage Design at Road Culverts, March 3, 1999; 
Oregon Road/Stream Crossing Restoration Guide: Spring 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.
    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 earlier, 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 a 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 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 2 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 defined here, which include criteria derived 
from those used for evaluating applications for incidental take 
permits, found at Sec. 222.307(c) of 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 
Sec. 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

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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 encourages 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 
(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 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. 223.203(a).

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, including training, documentation and accountability features 
that are described in the introduction to the document (letter from 
Grace Crunican to Will 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 a physical, safety, weather, equipment or other 
hard constraint makes 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

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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 
information on 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.
    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 ODOT's Guide governing 
herbicide or pesticide spraying (MMS #131) are sufficiently protective 
of listed salmonids to warrant not applying the take prohibitions of 
this proposed 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 this 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 propose to 
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

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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, 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 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 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.
    PP&R has recently developed special policies to provide extra 
protections near waterways and wetlands, including a 25- foot (7.5 m) 
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 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 limit on take prohibitions 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 a document 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

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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, 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 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 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.
    All existing native vegetation must be retained 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. 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.

[[Page 185]]

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, and 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 listed 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.

Forest Management Limit on the 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 the above 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 
threatened salmonid 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 other 
states 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

[[Page 186]]

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) prohibiting 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) 
ensuring that 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) requiring 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) Requiring 
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 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 (DFCs) 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

[[Page 187]]

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 m) wide west of the Cascades and 
30 ft (9 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 diameter (.30m) 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 DFC. 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 the 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 
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, 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 techniques such 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 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

[[Page 188]]

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 a 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, and 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 has, therefore, scheduled 15 
public hearings throughout the Northwest to receive public comment on 
this rule and other ESA 4(d) rules proposed concurrently. NMFS will 
consider all information, comments, and recommendations received before 
reaching a final decision on 4(d) protections for these ESUs. Public 
Hearings in Washington, Idaho, and Oregon are scheduled as follows:
    (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;

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 (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.

[[Page 189]]

    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 recordkeeping and/or reporting to 
support that continuing determination. NMFS has attempted to minimize 
any burden associated with programs for which the take prohibitions are 
not enacted.
    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 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 earlier, 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 section ESA 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 alternatives 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 necessary 
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

[[Page 190]]

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 effected 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 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 effected 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 March 3, 
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 upon request 
(see ADDRESSES).

List of Subjects in 50 CFR Part 223

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

    Dated: December 22, 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. Section 223.203 is revised to read as follows:


Sec. 223.203  Anadromous fish.

    (a) Prohibitions. The prohibitions of section 9 of the ESA (16 
U.S.C. 1538) relating to endangered species apply to

[[Page 191]]

the threatened species of salmonids listed in Sec. 223.102(a)(1) 
through (a)(4), (a)(10), (a)(12), (a)(13), and (a)(16) through (a)(19) 
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 in part 222 of 
this chapter II implementing such exceptions, also apply to the 
threatened species of salmonids listed in Sec. 223.102(a)(1) through 
(a)(4), (a)(10), (a)(12), (a)(13), and (a)(16) through (a)(19). 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)(1) through 
(a)(4), (a)(10), (a)(12), (a)(13), and (a)(16) through (a)(19) do not 
apply to activities specified in an application for a permit for 
scientific purposes or to enhance the conservation or survival of the 
species, provided that the application has been received by the 
Assistant Administrator for Fisheries, NOAA (AA), no later than 30 days 
after the 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)(1) through 
(a)(4), (a)(10), (a)(12), (a)(13), and (a)(16) through (a)(19) do not 
apply to any employee or designee of NMFS, the United States Fish and 
Wildlife Service, any Federal land management agency, the Idaho 
Department of Fish and Game, Washington Department of Fish and 
Wildlife, the Oregon Department of Fish and Wildlife, or of any other 
governmental entity that has co-management authority over fishery 
management for the listed salmonids, 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 take prohibitions 
of paragraph (a) of this section is to report to NMFS the numbers of 
fish handled and their status, on an annual basis. A designee of the 
listed entities is any individual the Federal or state fishery agency 
or other co-manager has authorized in writing to perform the listed 
functions.
    (4) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(10), 
(a)(12), (a)(13), and (a)(16) through (19) do not apply to fishery 
harvest activities provided that:
    (i) Fisheries are managed in accordance with a NMFS-approved 
Fishery Management and Evaluation Plan (FMEP) and implemented in 
accordance with a Memorandum of Agreement (MOA) between the state of 
Washington, Oregon, or Idaho (State) and NMFS. NMFS will approve an 
FMEP only if it clearly defines its intended scope and area of impact, 
and sets for the 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.

[[Page 192]]

    (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 any take of listed species, including time, size, gear, and 
area restrictions.
    (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 Regional Administrator.
    (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)(10), (a)(12), 
(a)(13) and (a)(16) through (19) do not apply to activity associated 
with artificial propagation programs provided that:
    (i) A state or Federal Hatchery and Genetics Management Plan (HGMP) 
has been approved by NMFS as meeting the following criteria:
    (A) The 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 
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.

[[Page 193]]

    (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 Regional Administrator.
    (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)(12), 
(a)(13), and (a)(16) through (a)(19) do not apply to actions undertaken 
in compliance with a resource management plan developed jointly by the 
States of Washington, Oregon and/or Idaho and the Tribes (joint plan) 
within the continuing jursidiction of United States v. Washington or 
United States v. Oregon, the on-going Federal court proceedings to 
enforce and implement reserved treaty fishing rights, provided that:
    (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 United 
States v. Washington or United States v. Oregon.
    (iii) In making that determination for a joint plan, the Secretary 
has taken comment on how any fishery management plan addresses the 
criteria in Sec. 223.203(b)(4), or how any hatchery and genetic 
management plan addresses the criteria in Sec. 223.203(b)(5).
    (iv) The Secretary shall publish notice in the Federal Register of 
any determination whether or not a joint plan will appreciably reduce 
the likelihood of survival and recovery of affected threatened ESUs, 
together with a discussion of the biological analysis underlying that 
determination.
    (7) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(10), (a)(12), 
(a)(13), and (a)(16) through (a)(19) do not apply to scientific 
research activities provided that:
    (i) Scientific research activities involving purposeful take is 
conducted by employees or contractors of the Oregon Department of Fish 
and Wildlife (ODFW) or Washington Department of Fish and Wildlife 
(WDFW)(Agencies), or as part of a coordinated monitoring and research 
program overseen by ODFW or WDFW.
    (ii) ODFW and WDFW provide 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) ODFW and WDFW annually provide 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) ODFW and WDFW, respectively, provide 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 Regional Administrator.
    (8) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(10), (a)(12), 
(a)(13), and (a)(16) through (19) do not apply to habitat restoration 
activities, as defined in paragraph (b)(8)(iii) of this section, 
provided that:
    (i) The states of Washington or Oregon 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

[[Page 194]]

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.
    (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; follow state requirements.
    (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 (b)(8)(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 Regional Administrator.
    (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)(10), (a)(12), 
(a)(13), and (a)(16) through (a)(19) 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. 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

[[Page 195]]

species of salmonids listed in Sec. 223.102(a)(10), (a)(13), (a)(17) 
and (a)(18) do not apply to 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 
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 city or county programs following the ODOT 
program, or of any amendments, shall be a written approval by NMFS' 
Northwest Regional Administrator.
    (11) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(13), (a)(17) 
and (a)(18) 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's 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.

[[Page 196]]

    (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) of 
this section 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 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 ESA 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 species of salmonids listed in Sec. 223.102 (a)(12) (a)(13), 
(a)(16), (a)(17) and (a) (19) do not apply to non-federal forest 
management activities conducted in the State of Washington provided 
that:
    (i) The action is in compliance with forest practice regulations 
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 subject to all 
ESA section 9 take prohibitions.
    (vii) NMFS approval of a regulations shall be a written approval by 
NMFS Northwest Regional Administrator.
[FR Doc. 99-33858 Filed 12-30-99; 8:45 am]
BILLING CODE 3510-22-F