[Federal Register Volume 66, Number 160 (Friday, August 17, 2001)]
[Proposed Rules]
[Pages 43150-43170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20570]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 010521133-1133-01 ; I.D. No. 050101B]
RIN 0648-AP17


Endangered and Threatened Species; Proposed Rule Governing Take 
of Four Threatened Evolutionarily Significant Units (ESUs) of West 
Coast Salmonids: California Central Valley Spring-run Chinook; 
California Coastal Chinook; Northern California Steelhead; Central 
California Coast Coho

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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[[Page 43151]]

SUMMARY: Under 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 would apply the take 
prohibitions enumerated in section 9(a)(1) of the ESA in most 
circumstances to California Central Valley Chinook, California Coastal 
Chinook and Northern California steelhead that do not currently have 
4(d) protective regulations in place. However, for these three 
threatened ESUs, NMFS is proposing 10 categories of activities for 
which the take prohibitions would not apply. NMFS believes that these 
activities contribute to conserving the listed salmonids or are 
governed by certain programs that adequately limit impacts on the ESUs. 
For the threatened Central California Coast coho salmon ESU, a 4(d) 
rule is currently in place which generally applies the take 
prohibitions enumerated in section 9(a)(1) of the ESA to this ESU. For 
this ESU, NMFS is proposing to amend its existing regulations to allow 
the same 10 limits on the application of the take prohibitions which 
are proposed for the chinook and steelhead ESUs described here.

DATES: Comments on this proposed rule must be received at the 
appropriate address (see ADDRESSES), no later than 5 p.m., Pacific 
standard time, on October 1, 2001. The dates and locations of public 
hearings regarding this proposal will be published in a susequent 
Federal Register document.

ADDRESSES: Written comments and requests for information should be sent 
to the Assistant Regional Administrator, Protected Resources Division, 
NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 
90802-4213. Comments will not be accepted if submitted via e-mail or 
Internet. For copies of guidance documents see Appendix A to 50 CFR 
223.203.

FOR FURTHER INFORMATION CONTACT: Craig Wingert at 562-980-4021, Miles 
Croom at 707-575-6068, Diane Windham at 916-930-3601, or Chris Mobley 
at 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On September 16, 1999, NMFS published a final rule listing the 
California Central Valley (CCV) Spring-run Chinook and California 
Coastal (CC) Chinook ESUs (Oncorhynchus tshawytscha or O. tshawytscha) 
as threatened species (64 FR 50394). In a final rule published on June 
7, 2000, NMFS also listed the Northern California (NC) steelhead ESU 
(O. mykiss) as a threatened species (65 FR 36074). These final rules 
describe the background of the listing actions and provide a summary of 
NMFS' conclusions regarding the status of these three ESUs. NMFS has 
not previously proposed any protective regulations, pursuant to section 
4(d) of the ESA, for these three ESUs.
    On October 31, 1996, NMFS listed the Central California Coast (CCC) 
coho salmon (O. kisutch) ESU as a threatened species (61 FR 56138). The 
final rule describes the background for this coho salmon listing action 
and also provides a summary of NMFS' conclusions regarding the status 
of the ESU. In conjunction with this final listing notice for the CCC 
coho salmon ESU, NMFS published a final ESA 4(d) rule which put in 
place the prohibitions of section 9(a)(1) of the ESA for this ESU. The 
4(d) rule for this ESU did not contain any of the limitations on the 
take prohibitions which NMFS included in its July 10, 2000, rule for 14 
other threatened ESUs of salmon and steelhead (65 FR 42422).
    Section 4(d) of the ESA provides that whenever a species is listed 
as threatened, the Secretary of Commerce (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 
section 9 of the ESA 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. The salmon and steelhead ESUs that are covered by this 
proposed rule have survived for thousands of years through cycles in 
ocean conditions and weather; therefore, NMFS has concluded that they 
are at risk of extinction primarily because their populations have been 
reduced by human ``take''. These ESUs have declined in abundance due to 
take of fish from harvest, past and ongoing destruction or damage to 
freshwater and estuarine habitats, hatchery practices, hydropower 
development, and other causes. Two reports prepared by NMFS (NMFS 1996 
and 1998) reviewed the factors which have contributed to the decline of 
west coast steelhead and chinook populations, including these ESUs, and 
both conclude that all of the factors identified in section 4(a)(1) of 
the ESA have played some role in their decline. The reports identify 
destruction and modification of habitat, over-utilization, and hatchery 
effects as significant reasons for the species' declines. While the 
most influential factors differ from species to species and among ESUs 
depending on their geographic location, loss and degradation of habitat 
conditions, harvest impacts, and in some instances hatchery impacts are 
factors that have affected all of the ESUs. Accordingly, NMFS is 
proposing in most circumstances to apply the section 9 take 
prohibitions to the threatened ESUs covered in this proposed rule, in 
order to provide for their conservation.
    Although the primary purpose of state, local and other non-Federal 
programs is generally to further some activity such as maintaining 
roads, controlling development, ensuring clean water or harvesting 
trees, rather than conserving salmon or steelhead, some entities have 
modified one or more of these programs to protect and conserve listed 
salmonids and protect their habitat. NMFS believes that with 
appropriate safeguards, many state, local and other non-Federal 
activities can be specifically tailored to minimize impacts on listed 
salmonid ESUs such that additional Federal protections are unnecessary 
for their conservation.
    NMFS, therefore, is proposing a mechanism for the salmon and 
steelhead ESUs covered by this proposed rule whereby state, local and 
other non-Federal entities can be assured that certain activities they 
conduct or permit are consistent with ESA requirements and avoid or 
minimize the risk of take of listed fish. When such a program provides 
sufficient conservation for these listed salmonid ESUs, NMFS does not 
find it necessary and advisable to apply take prohibitions to 
activities governed by those programs. In those circumstances, as 
described in more detail herein, additional Federal ESA regulation 
through the section 9(a) take

[[Page 43152]]

prohibitions is not necessary and advisable because it would not 
meaningfully contribute to the conservation of the listed ESUs. In 
fact, not applying take prohibitions to programs that meet such 
standards may result in even greater conservation gains for a listed 
ESU than would the blanket application of take prohibitions, through 
implementation of the program itself and by demonstrating to similarly 
situated jurisdictions or 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 these threatened ESUs.

Substantive Content of Proposed Regulation

    NMFS has not previously proposed any ESA 4(d) protective 
regulations for the CCV spring chinook salmon, CC chinook salmon or NC 
steelhead ESUs which are addressed in this proposed rule. However, when 
the CCC coho salmon ESU was listed in 1996, NMFS did adopt a 4(d) 
protective regulation which applied the section 9(a) take prohibitions 
to that ESU, but did not incorporate the take limitations which were 
recently adopted for 14 other threatened salmonids ESUs (65 FR 42422) 
and are proposed in this rule. To ensure that the 4(d) rule for the CCC 
coho salmon ESU is consistent with existing or proposed 4(d)rules for 
threatened salmonids which have overlapping distributions (i.e., CCC 
steelhead, NC steelhead, and CC chinook ESUs), NMFS proposes to modify 
the existing 4(d) rule for CCC coho salmon by incorporating the take 
limitations which are described in this proposed rule.
    NMFS believes that the section 9(a) take prohibitions, which are 
applicable for endangered species, are necessary and advisable for 
conservation of the threatened salmon and steelhead ESUs covered by 
this proposed rule, but that take of listed fish in these ESUs need not 
be prohibited when it results from the activities described herein if 
specified conservation standards or criteria are met. Such activities 
are those which are conducted in a way that contributes to conserving 
the threatened ESUs, or are governed by a program that limits impacts 
on the threatened ESUs to an extent that makes added protection through 
Federal regulation unnecessary and unadvisable for their conservation. 
NMFS, therefore, proposes to apply ESA section 9(a) prohibitions to the 
CCV spring chinook, CC chinook, and NC steelhead ESUs, but not to apply 
the take prohibitions to the 10 programs, or take limitations, 
described in this proposed rule that meet the necessary level of 
protection and conservation. In addition, NMFS is proposing to apply 
the same 10 take limitations described herein to the CCC coho salmon 
ESU which currently has all the section 9(a) take prohibitions in 
place. As an alternative to utilizing the 10 limitations on the take 
prohibitions described in this proposed rule, responsible entities may 
choose to seek an ESA section 10 permit from NMFS.
    NMFS has identified several programs for which it is not necessary 
and advisable to impose take prohibitions because they contribute to 
conserving the threatened ESUs 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) scientific research activities permitted or conducted by 
the State of California; (7) state, local, and private habitat 
restoration activities that are part of approved watershed conservation 
plans; (8) properly screened water diversion devices (i.e., screening 
devices per NMFS' guidelines or equivalent configurations); (9) routine 
road maintenance activities; and (10) municipal, residential, 
commercial, and industrial (MRCI) development activities. These take 
limitations are described in more detail in following sections. In most 
instances, these take limitations and criteria are for future programs 
where NMFS will limit the application of the ESA section 9(a)(1) take 
prohibitions. More comprehensive descriptions of each limit are 
contained in ``A Citizen's Guide to the 4(d) Rule'' (NMFS, 2000) which 
can be obtained at the NMFS Southwest Region' web site (http://swr.nmfs.noaa.gov). NMFS anticipates that new take limits may be added 
to these regulations in the future for additional activities that are 
found to be necessary and sufficient for the conservation of the 
threatened ESUs.
    NMFS emphasizes that these take limits are not prescriptive 
regulations. The fact that an activity is not conducted within the 
specified criteria for a take limit does not necessarily mean that the 
activity violates the ESA or this regulation. Many activities do not 
affect the threatened ESUs covered by this proposed rule, and, 
therefore, do not need to be conducted within any of the ten limits 
listed previously to avoid section 9 take violations. Nevertheless, an 
entity can be certain it is not at risk of violating the section 9 take 
prohibitions or at risk of enforcement actions if it conducts its 
activities in accordance with the take limits since the take 
prohibitions would not be applied to programs or activities conducted 
within the limits. Jurisdictions, entities, and individuals are 
encouraged to evaluate their practices and activities to determine the 
likelihood of whether take is occurring. NMFS can provide ESA coverage 
through section 4(d) rules, section 10 research, enhancement, and 
incidental take permits, or through section 7 consultation with Federal 
agencies. If take is likely to occur, then the jurisdiction, entity or 
individual should modify its practices to avoid the take of these 
threatened salmonid ESUs or seek protection from potential ESA 
liability through section 7, section 10, or section 4(d) procedures.
    Jurisdictions, entities, and individuals are not required to seek 
coverage under an ESA 4(d) limit from NMFS. In order to reduce its 
liability, a jurisdiction, entity, or individual may also informally 
comply with a limit by choosing to modify its programs to be consistent 
with the evaluation considerations described in the individual limits. 
Finally, a jurisdiction, entity, or individual may seek to qualify its 
plans or ordinances for inclusion under a take limit by obtaining a 
4(d) take limit authorization from the NMFS Southwest Region 
Administrator.
    NMFS will continue to work collaboratively with all affected 
governmental entities to recognize existing management programs that 
conserve and meet the biological requirements of listed salmonids, and 
to strengthen other programs toward the conservation of listed 
salmonids. Any final rule resulting from this proposal may be amended 
to add new limits on the take prohibitions, or to amend or delete 
adopted take limits as circumstances warrant.
    Following is a section entitled ``Notice of Availability'' which 
lists four documents referred to in this proposed regulation. The 
purpose of making these documents available to the public is to inform 
governmental entities and other interested parties of the technical 
components expected to be addressed in programs submitted for NMFS' 
review. These technical documents provide guidance to entities as they 
consider whether to submit a program for an ESA 4(d) limit. The 
documents represent several kinds of guidance, and are not

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binding regulations requiring particular actions by any entity or 
interested party.
    For example, NMFS' technical report entitled: ``Viable Salmonid 
Populations (VSP) and the Recovery of ESUs'', which is referenced in 
the fishery and harvest management take limits, provides a framework 
for identifying populations and their status as a component of 
developing adequate harvest or hatchery management plans. The proposed 
rule indicates that Fishery Management and Evaluation Plans (FMEPs) and 
Hatchery and Genetic Management Plans (HGMPs) utilize the concepts of 
`viable' and `critical' salmonid population thresholds, consistent with 
the concepts contained in NMFS's VSP technical report. The California 
Department of Fish and Game, therefore, is put on notice about the 
technical analysis needed to develop an FMEP or HGMP that NMFS can 
approve as being within the take limit criteria. Similarly, NMFS' fish 
screening criteria explicitly recognize that they are general in nature 
and that site constraints or particular circumstances may require 
adjustments in design, which must be developed with a NMFS staff 
member, or authorized officer, to address site specific considerations 
and conditions. Finally, research involving electrofishing comes within 
the scientific research limit only if conducted in accordance with 
NMFS' guidelines for electrofishing. The guidelines recognize that 
other techniques may be appropriate in particular circumstances, and 
NMFS can recognize those as appropriate during the approval process.
    The Oregon Department of Transportation's (ODOT) road maintenance 
program for governing routine maintenance activities is an existing 
program currently being implemented that NMFS has found adequate for 
threatened ESU conservation, and, therefore, has been established as a 
take limitation in a previous ESA 4(d) rule (65 FR 42422). Other 
jurisdictions may come within the road maintenance limit if they use 
the ODOT program or provide other practices found by NMFS to be more or 
equally as protective of salmonids.
    In sum, where the rule cites a document, a program's consistency 
with the guidance is ``sufficient'' to demonstrate that the program 
meets the particular purpose for which the guidance is cited. However, 
the entity or individual wishing a program to be accepted as within a 
particular limit has the latitude to show that its variant or approach 
is, in the circumstances where it will apply and affect listed fish, 
equivalent or better.
    NMFS will continue to review the applicability and technical 
content of its own documents as they are used in the future and make 
revisions, corrections, or additions as needed. NMFS will accept 
comments on revisions of any of the referenced state programs. If any 
of these documents are revised and NMFS relies on the revised version 
to provide guidance in continued implementation of the rule, NMFS will 
publish in the Federal Register a notice of its availability stating 
that the revised document is now the one referred to in 50 CFR 
223.203(b).

Notice of Availability

    The following is a list of documents cited in the regulatory text 
of this proposed rule. Copies of these documents may be obtained upon 
request (see Appendix A to 50 CFR 223.203).
    1. Oregon Department of Transportation (ODOT) Maintenance 
Management System Water Quality and Habitat Guide (July, 1999).
    2. Guidelines for Electrofishing Waters Containing Salmonids Listed 
Under the Endangered Species Act (NMFS, 2000a).
    3. Fish Screening Criteria for Anadromous Salmonids, National 
Marine Fisheries Service, Southwest Region, 1997.
    4. Viable Salmonid Populations and the Recovery of Evolutionarily 
Significant Units. (June 2000).
    Copies of all references, reports, related documents and the ESA 
4(d) rule supplementary document entitled: ``A Citizen's Guide to the 
4(d) Rule'' (NMFS, 2000) are also available upon request (see 
ADDRESSES). Some of these documents are also available on the Southwest 
Region's web site (http://swr.nmfs.noaa.gov).
    The limits on the take prohibitions in this proposed rule do not 
relieve Federal agencies of their duty under section 7 of the ESA to 
consult with NMFS if actions they fund, authorize, or carry out may 
affect the ESUs covered by this proposed rule or any other listed 
species. To the extent that actions subject to section 7 consultation 
are consistent with a circumstance for which NMFS has limited the take 
prohibitions, a letter of concurrence from NMFS will greatly simplify 
the consultation process, provided the program is still consistent with 
the terms of the limit.

Take Guidance

    The threatened salmonid ESUs addressed in this proposed rule are in 
danger of becoming extinct in the foreseeable future. They have been 
depleted by over-fishing, past and ongoing freshwater and estuarine 
habitat destruction, hydropower development, hatchery practices, and 
other causes. It is, therefore, necessary and advisable to put into 
place ESA section 9(a)(1) prohibitions to aid in their conservation. 
Section 9(a)(1) prohibitions make it illegal for any person subject to 
the United States' jurisdiction to ``take'' these species without 
written authorization. ``Take'' is defined to occur when a person 
engages in activities that harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect a species or attempt to do any of 
these. Impacts on a protected species' habitat may harm members of that 
species and, therefore, constitute a ``take'' under the ESA. Such acts 
may include significant habitat modification or degradation that 
actually kills or injures listed fish by significantly impairing 
essential behavioral patterns including breeding, spawning, rearing, 
migrating, feeding or sheltering (64 FR 60727, November 8, 1999).
    On July 1, 1994 (59 FR 34272), NMFS and the U.S. Fish and Wildlife 
Service (FWS) published a policy committing both agencies to identify, 
to the extent possible, those activities that would or would not 
violate section 9 of the ESA. The intent of this policy is to increase 
public awareness about ESA compliance and focus public attention on 
those actions needed to protect species.
    Based on available information, NMFS believes the categories of 
activities listed here are those activities which as a general rule may 
be most likely to result in injury or harm to listed salmonids. NMFS 
wishes to emphasize at the outset that whether injury or harm results 
from a particular activity is entirely dependent upon the facts and 
circumstances of each case. The mere fact that an activity may fall 
within one of these categories does not at all mean that the specific 
activity is causing harm or injury. These types of activities are, 
however, those that may be most likely to cause harm and thus violate 
this rule. NMFS' ESA enforcement will, therefore, focus on these 
categories of activities.
    Activities listed in A thru J here are as cited in NMFS' harm rule 
(64 FR 60727, November 8, 1999).
    A. Constructing or maintaining barriers that eliminate or impede a 
listed species' access to habitat or ability to migrate.
    B. Discharging pollutants, such as oil, toxic chemicals, 
radioactivity, carcinogens, mutagens, teratogens or organic nutrient-
laden water including sewage water into a listed species' habitat.

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    C. Removing, poisoning, or contaminating plants, fish, wildlife, or 
other biota required by the listed species for feeding, sheltering, or 
other essential behavioral patterns.
    D. Removing or altering rocks, soil, gravel, vegetation or other 
physical structures that are essential to the integrity and function of 
a listed species' habitat.
    E. Removing water or otherwise altering stream flow when it 
significantly impairs spawning, migration, feeding or other essential 
behavioral patterns.
    F. Releasing non-indigenous or artificially propagated species into 
a listed species' habitat or where they may access the habitat of 
listed species.
    G. Constructing or operating dams or water diversion structures 
with inadequate fish screens or fish passage facilities in a listed 
species' habitat.
    H. Constructing, maintaining, or using inadequate bridges, roads, 
or trails on stream banks or unstable hill slopes adjacent to or above 
a listed species' habitat.
    I. Conducting timber harvest, grazing, mining, earth-moving, or 
other operations which result in substantially increased sediment input 
into streams.
    J. Conducting land-use activities in riparian areas and areas 
susceptible to mass wasting and surface erosion, which may disturb soil 
and increase sediment delivered to streams, such as logging, grazing, 
farming, and road construction.
    K. Illegal fishing. Harvest in violation of fishing regulations 
will be a top enforcement concern.
    L. Various streambed disturbances may trample eggs or trap adult 
fish preparing to spawn. The disturbance could be mechanical disruption 
caused by constructing push-up dams, removing gravel, mining, or other 
work in a stream channel. It may also take the form of egg trampling or 
smothering by livestock in the streambed or by vehicles or equipment 
being driven across or down the streambed (as well as any similar 
physical disruptions).
    M. Interstate and foreign commerce dealing in listed salmonids and 
importing or exporting listed salmonids may harm the fish unless it can 
be shown through an ESA permit-- that they were harvested in a manner 
that complies with ESA requirements.
    N. Altering lands or waters in a manner that promotes unusual 
concentrations of predators.
    O. Shoreline and riparian disturbances (whether in the riverine, 
estuarine, marine, or floodplain environment) may retard or prevent the 
development of certain habitat characteristics upon which the fish 
depend (e.g., removing riparian trees reduces vital shade and cover, 
floodplain gravel mining, development, and armoring shorelines reduces 
the input of critical spawning substrates, and bulkhead construction 
can eliminate shallow water rearing areas).
    P. Filling or isolating side channels, ponds, and intermittent 
waters (e.g., installing tide gates and impassable culverts) can 
destroy habitats that the fish depend upon for refuge areas during high 
flows.
    The list provides examples of the types of activities that could 
have a high risk of causing take, but it is by no means exhaustive. It 
is intended to help people avoid violating the ESA and to encourage 
efforts to save the threatened ESUs addressed in this proposed rule. 
Determination of whether take has actually occurred depends on the 
circumstances of a particular case.
    Many activities that may kill or injure salmonids such as fill and 
removal authorities, National Pollutant Discharge Elimination System or 
other water quality permitting, and pesticide use are regulated by 
state and/or Federal processes. For those types of activities, NMFS 
would not concentrate enforcement efforts on those who operate in 
conformity with current permits. Rather, if the regulatory program does 
not provide adequate salmonid protection, NMFS intends to work with the 
responsible agency to make necessary changes in the program.
    For instance, concentrations of pesticides may affect salmonid 
behavior and reproductive success. Current EPA label requirements were 
developed in the absence of information about some of these subtle but 
real impacts on aquatic species such as salmonids. Where new 
information indicates that pesticide label requirements are not 
adequately protective of salmonids, NMFS will work with EPA through the 
section 7 consultation process to develop more protective use 
restrictions and, thereby, provide the best possible guidance to all 
users. Similarly, where water quality standards or state authorizations 
lead to pollution loads that may cause take, NMFS intends to work with 
the state water quality agencies and EPA to bring those standards or 
permitting programs to a point that does protect salmonids.
    Persons or entities concluding that their activity is likely to 
injure or kill protected fish are encouraged to immediately adjust that 
activity to avoid take (or adequately limit any impacts on the species) 
and seek NMFS' authorization for incidental take under: (a) an ESA 
section 10 incidental take permit; (b) an ESA section 7 consultation; 
or (c) a limit on the take prohibitions provided in this proposed rule. 
The public is encouraged to contact NMFS (see FOR FURTHER INFORMATION 
CONTACT) for assistance in determining whether circumstances at a 
particular location (involving these activities or any others) would 
constitute a violation of this rule if finalized.
    Impacts on listed salmonids resulting from actions in compliance 
with a permit issued by NMFS pursuant to section 10 of the ESA would 
not constitute a violation of this proposed rule if finalized. Section 
10 permits may be issued for research activities, enhancement of a 
species' survival, or to authorize incidental take occurring in the 
course of an otherwise lawful activity. NMFS consults on a broad range 
of activities conducted, funded, or authorized by Federal agencies. 
These include fisheries harvest, hatchery operations, silviculture 
activities, grazing, mining, road construction, dam construction and 
operation, discharge of fill material, and stream channelization and 
diversion. Federally funded or approved activities that affect listed 
salmonids and for which ESA section 7 consultations have been completed 
will not constitute violations of this proposed rule provided the 
activities are conducted in accord with all reasonable and prudent 
measures and terms and conditions contained in any biological opinion 
or incidental take statement issued by NMFS.

Aids for Understanding the Limits on the Take Prohibitions

Issue 1: Population and Habitat Concepts

    This proposed rule references scientific concepts that NMFS 
proposes to use in determining whether particular programs would not be 
subject to the ESA section 9 take prohibitions. One of these concepts 
allows for identifying populations that may warrant individual 
management within established ESUs for some activities or programs. The 
second concept involves identifying relevant biological parameters to 
evaluate the status of these populations and identifying ``critical 
thresholds'' and ``viable thresholds'' for these populations. NMFS has 
developed a scientific and policy paper entitled ``Viable Salmonid 
Populations and the Recovery of ESUs'' (NMFS, 2000b) that addresses the 
biological concepts surrounding viable salmonid populations in more 
detail. This paper will provide additional guidance for entities 
evaluating their

[[Page 43155]]

programs under this proposed rule if it is finalized. 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 definitions 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 proposed rule.
    NMFS believes it important to identify population units within 
established ESUs for several reasons. Identifying and assessing impacts 
on such units will enable greater consideration of the important 
biological diversity contained within each ESU, a factor considered in 
NMFS' ESU policy (Waples, 1991). Further, assessing impacts on a 
population level is typically a more practical undertaking given the 
scale and complexity of ESUs. Finally, assessing impacts on a 
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 in this section to harvest and 
artificial propagation activities, 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. Activities should not preclude 
populations from attaining this condition.

Evaluating Habitat Conditions

    This proposed rule limits application of the take prohibitions for 
certain categories of activities that are conducted in a way that will 
help attain or protect properly functioning habitat. Properly 
functioning habitat conditions

[[Page 43156]]

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 flooding, 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 2: Direct and Incidental Take

    Section 4(d) of the ESA requires that 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 relevant 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 the distinction between incidental or direct take. 
Rather, these descriptions and criteria focus on the impacts of all 
take associated with a particular activity on the biological status of 
the listed ESU. (The distinction is retained in the discussion of 
scientific research targeting listed fish, because the limit on take 
prohibitions applies in that situation only to research by agency 
personnel or agency contractors.)

Issue 3: Applicability of Proposed Rule to Specific ESUs

    In the regulatory language in this proposed rule, the limits on 
applicability of the take prohibitions to specific ESUs are 
accomplished through citation to the Code of Federal Regulations' 
(CFRs') enumeration of threatened marine and anadromous species, 50 CFR 
223.102. For the convenience of readers of this document, 50 CFR 
223.102 refers to the threatened salmonid ESUs covered in this proposed 
rule through the following designations:
    (a)(3) Central California Coast coho salmon
    (a)(20) Central Valley spring-run chinook salmon
    (a)(21) California Coastal chinook salmon
    (a)(22) Northern California steelhead

Issue 4: Regular Evaluation of Limits on Take Prohibitions

    In making a determination that it is not necessary and advisable to 
impose take prohibitions on certain programs or activities that are 
adequately covered by one of the take limits in this proposed rule, 
NMFS recognizes that new information may require a reevaluation of that 
conclusion at any time. For any of the limits on the take prohibitions 
described in this proposed rule, NMFS will evaluate on a regular basis 
the effectiveness of the program in protecting and achieving a level of 
salmonid productivity and/or of habitat function consistent with 
conservation of the listed salmonids. If the program is deficient, NMFS 
will identify ways in which it 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 5: Coordination with United States Fish and Wildlife Service 
(FWS)

    This proposed 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 is covered under a 
limitation on take prohibitions, NMFS will coordinate closely with the 
appropriate FWS office.

Summary of Take Limitations Proposed in This Rule

1. 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 prohibitions 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.

2. Continuity of Scientific Research Take Limit

    This limit on the take prohibitions would not restrict ongoing 
scientific research activities affecting listed CCV Spring-run chinook; 
CC chinook; and NC steelhead 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, NOAA (AA), within 30 days 
from the effective date of a final rule. This take limit would not be 
applied to the CCC coho salmon because the ESA section 9 take 
prohibitions have been in place for this ESU since 1996; therefore, 
sufficient time has elapsed for entities to obtain section 10 
scientific research permits. 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 any final rule, whichever occurs earliest. It is in 
the interest 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 of a permit if the research 
is judged to have unacceptable impacts on a listed ESU. For these 
reasons, NMFS does not find imposition of additional Federal 
protections in the form of take prohibitions necessary and advisable.

3. Limit on the Take Prohibitions for Rescue and Salvage Actions

    This limit on the take prohibitions applies to all four threatened 
ESUs covered by this proposed rule and would relieve certain agency and 
official personnel or their designees from the take prohibition when 
they are acting to aid an injured or stranded

[[Page 43157]]

salmonid, or to salvage a dead individual for scientific study. Each 
agency acting under this limitation must annually report to NMFS the 
numbers of fish handled and their status. This limit on the take 
prohibitions will result in conservation of the threatened salmonid 
ESUs 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 additional Federal 
protections through a take prohibition is not necessary and advisable.

4. Fishery Management Limit on the Take Prohibitions

    This take limit would apply to all four threatened ESUs covered by 
this proposed rule. NMFS believes that fisheries for non-listed 
salmonids and resident game fish species can be managed in a manner 
that protects listed salmon and steelhead ESUs and allows them to 
recover. Therefore, this proposed rule provides a mechanism whereby 
NMFS may limit application of take prohibitions to such fisheries when 
a state fishery management agency develops and implements, in 
accordance with a letter of concurrence, a NMFS-approved FMEP. Some 
benefits of this approach are long-term management planning, more 
public involvement, a more streamlined administrative process, and more 
certainty that there will be fishing opportunities in the future.

Process for Developing and Approving FMEPs

    Prior to determining that a state's new or amended FMEP is 
sufficient to eliminate the need for added Federal ESA protection, NMFS 
must find that the plan is effective in addressing the criteria 
described in the following section. If NMFS finds that an FMEP meets 
those criteria, it will approve the plan following public review and 
comment on the FMEP and after making any revisions resulting from such 
review and comment. NMFS will communicate its approval to the state 
fishery agency with a letter of concurrence which will set forth the 
terms of the FMEP's implementation and the duties of the parties 
pursuant to the FMEP, including monitoring and reporting requirements.
    NMFS recognizes the importance of providing meaningful 
opportunities for public review of FMEPs. Therefore, prior to approving 
new or amended FMEPs, NMFS will make such plans 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. 
Specifically, 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 listed 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. 
Populations may be aggregated for management purposes when dictated by 
information scarcity, if consistent with survival and recovery of the 
listed ESU. In identifying management units, the plan shall describe 
the reasons for using such units in lieu of population units and 
describe how such units are defined such that they are consistent with 
the principles discussed under Issue 2.
    (3) Utilize the concepts of viable and critical salmonid population 
thresholds, consistent with the concepts contained in NMFS' ``Viable 
Salmon Populations and the Recovery of ESUs'' technical report (NMFS, 
2000b), for any population or management unit intended to be managed 
separately within the ESU.
    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.
    (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. Maximum 
exploitation rates must not appreciably reduce the likelihood of 
survival and recovery of the listed 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 will not appreciably reduce the likelihood 
of survival and recovery of the listed ESU. 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.
    (7) Provide for the evaluation of monitoring data and any needed 
revisions of assumptions, management strategies, or FMEP objectives 
based on monitoring data that is collected.
    (8) Provide for effective enforcement and education. Coordination 
among involved jurisdictions is an important element in ensuring 
regulatory effectiveness and coverage.
    (9) Include restrictions on resident and anadromous species 
fisheries that

[[Page 43158]]

minimize any take of listed fish, including time, size, gear, and area 
restrictions.

5. Artificial Propagation Limit on the Take Prohibitions

    This take limit would apply to all four threatened ESUs covered by 
this proposed rule. NMFS believes that artificial propagation, or 
hatchery programs can be managed in a manner that conserves and 
recovers listed salmon and steelhead ESUs, including the use of listed 
salmonids as hatchery broodstock, as long as the programs are managed 
in accordance with specific criteria. Under such circumstances, NMFS 
believes it is not necessary and advisable to prohibit the take of 
listed ESUs in conjunction with these programs. 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 adequately protects and conserves threatened salmon and 
steelhead ESUs. In addition, the proposed rule provides a mechanism 
whereby NMFS may limit the application of take prohibitions to 
broodstock collection.
    Under this take limit, the state or Federal agency develops a 
Hatchery and Genetic Management Plan (HGMP) containing specific 
management measures that will minimize and adequately limit impacts on 
listed fish and promote the conservation of the listed ESU. Following 
an opportunity for public comment and upon NMFS' approval of the HGMP, 
NMFS would provide the state or Federal agency with a letter of 
concurrence specifying implementation requirements, including 
monitoring and reporting. NMFS believes that with an approved HGMP in 
place, additional Federal ESA protection through imposition of take 
prohibitions on artificial propagation activities is unnecessary.

Process for Developing Hatchery and Genetic Management Plans

    NMFS will evaluate the effectiveness of state or Federal HGMPs by 
addressing the criteria described in the following section. If NMFS 
determines that the evaluation criteria have been adequately addressed 
in the state HGMP, then it will approve the plan following public 
comment and any necessary modification, and provide the state agency 
with a concurrence letter specifying implementation, monitoring and 
reporting requirements. For Federally operated or funded hatcheries, an 
ESA section 7 consultation with the Federal agency will achieve this 
purpose and that ensure implementation, monitoring and reporting 
requirements are met.
    NMFS recognizes the importance of providing meaningful 
opportunities for public review of draft HGMPs. Therefore, prior to 
approving new or amended HGMPs, NMFS will make such plans available for 
public review and comment for a period of not less than 30 days. Notice 
of the availability of such draft plans will be published in the 
Federal Register.

Criteria for Evaluating Hatchery and Genetic Management Plans

    NMFS will evaluate salmonid HGMPs on the basis of criteria that are 
designed to minimize and adequately limit take and promote the 
conservation of the listed species. The criteria by which draft HGMPs 
will be evaluated include the following:
    (1) Goals and Objectives for the Propagation Program. Each hatchery 
program HGMP 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, contribute to the ultimate sustainability 
of natural spawning populations, and/or intended to augment tribal, 
recreational, or commercial fisheries. Objectives should enumerate the 
results desired from the program that will be used to measure the 
program's success or failure.
    (2) The HGMP utilizes the concepts of viable and critical salmonid 
population threshold, consistent with the concepts contained in NMFS' 
technical document report entitled: ``Viable Salmonid Populations and 
the Recovery of ESUs'' (NMFS, 2000b). Listed salmon or steelhead may be 
taken for broodstock purposes only if: (A) the donor population is 
currently at or above viable thresholds and the collection will not 
impair the population's function, (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 but not yet viable, and the collection will 
not appreciably slow the attainment of viable status for that 
population.
    (3) The HGMP considers the health, abundance and trends in the 
donor population in establishing broodstock collection priorities. The 
primary purpose of broodstock collection of listed salmon or steelhead 
is to reestablish indigenous 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 salmonid ESU conservation needs are met and 
when consistent with survival and recovery of the listed ESU, 
broodstock collection programs may be authorized by NMFS for secondary 
purposes such as to sustain tribal, recreational or other fisheries.
    (4) The HGMP includes protocols to address fish health, broodstock 
collection, broodstock spawning, rearing and release of juveniles, 
deposition of hatchery adults, and catastrophic risk management.
    (5) The HGMP evaluates, minimizes and accounts for the artificial 
propagation program's genetic and ecological effects on natural 
populations, including disease transfer, competition, predation, and 
genetic introgression caused by straying of hatchery fish.
    (6) The HGMP describes interrelationships and interdependencies 
with fisheries management. The combination of artificial propagation 
programs and harvest management must be designed to provide as many 
benefits and as few biological risks as possible for the listed ESUs. 
HGMPs for programs whose purpose is to sustain fisheries must not 
compromise the ability of FMEPs or other management plans to achieve 
management objectives for associated listed populations.
    (7) Adequate artificial propagation facilities exist to properly 
rear progeny of naturally spawned and listed broodstock to maintain 
population health, maintain population diversity, and to avoid 
hatchery-influenced selection or domestication.
    (8) Adequate monitoring and evaluation exist to detect and evaluate 
the success of the hatchery program and any risks potentially impairing 
recovery of the listed ESU.

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-

[[Page 43159]]

naturally spawned crosses would also be listed.
    In its final listing decisions for the CCV Spring-run chinook 
salmon, CC chinook salmon and NC steelhead ESUs that are covered by 
this proposed rule, NMFS determined that it was not necessary to 
consider the artificially propagated progeny of intentional hatchery/
naturally spawned and naturally spawned/naturally spawned crosses to be 
listed fish (except in cases where NMFS has listed the hatchery 
population as well) when the collection and use of listed fish as 
broodstock was part of an approved conservation plan such as an HGMP. 
NMFS believes it may be desirable to incorporate naturally spawned 
(i.e., listed) fish into hatchery populations in these ESUs to ensure 
that their genetic and life history characteristics do not diverge 
significantly from the naturally spawned populations; however, prior to 
any intentional use of threatened salmon or steelhead for hatchery 
broodstock, an approved HGMP must be in place to ensure that native, 
naturally spawned populations are conserved.

6. Limits on the Take Prohibitions for Scientific Research

    This take limit applies to all four threatened ESUs covered by this 
proposed rule. In carrying out their fishery management 
responsibilities, the California Department of Fish and Game (CDFG) 
conducts or permits a wide range of scientific research activities on 
various fisheries, including monitoring and other studies which occur 
within the geographic areas occupied by the four threatened salmon and 
steelhead ESUs considered in this proposed rule. NMFS finds these 
activities: (1) vital for improving our understanding of the status and 
risks facing these threatened ESUs, as well as non-listed salmonids and 
other species that occur within these geographic areas; and (2) provide 
critical information for assessing the effectiveness of current and 
future management practices. In general, NMFS concludes such activities 
will help to conserve the threatened ESUs considered in this proposed 
rule by furthering our understanding of their (and other 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. For 
these reasons, NMFS concludes that it is not necessary or advisable to 
impose additional protections on such research through imposition of 
Federal ESA section 9 take prohibitions.
    Research activities that involve the planned sacrifice or 
manipulation of salmonids or that will necessarily result in the injury 
or death of salmonids in the threatened ESUs considered in this 
proposed rule will come within this limitation only if the state 
submits an annual report listing all scientific research activities 
involving such activities planned for the coming year to NMFS for 
review and approval. Such reports shall contain: (1) an estimate of the 
total take of threatened salmonids anticipated from such research; (2) 
a description of study designs, including a justification for taking 
the salmonids; (3) a description of the techniques to be used; and (4) 
a point of contact. For this type of research to come within the take 
limitation, it must be conducted by employees or contractors of the 
CDFG or be 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 from the 
threatened ESUs considered in this proposed rule will come within this 
take limitation only if it complies with ``Guidelines for 
Electrofishing Waters Containing Salmonids Listed Under the Endangered 
Species Act'' (NMFS, 2000a). Otherwise, electrofishing research that 
will affect listed salmonids will require an ESA section 10 research 
permit from NMFS prior to commencing operations.
    CDFG must also annually provide NMFS with the results of their 
scientific research activities which are directed at the threatened 
ESUs considered in this proposed rule, including a report of the amount 
of direct take resulting from the research and a summary of the results 
of such research.
    Research activities conducted by CDFG, or authorized by the CDFG 
for non-state entities, that may result in incidental take of listed 
salmonids can be covered under this limit in the following manner. CDFG 
must submit to NMFS annually, for its review and approval, a report 
listing all scientific research activities it conducts or permits that 
may incidentally take listed salmonids from the threatened ESUs covered 
by this rule for the coming year. In this annual report, CDFG 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).

7. Habitat Restoration Limits on the Take Prohibitions

    This take limit applies to all four threatened ESUs covered by this 
proposed rule. 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.
    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 based 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 that are 
part of, and conducted pursuant to, a watershed conservation plan that 
the State of California has certified is consistent with State 
watershed conservation plan guidelines. For this take limitation to 
apply to habitat restoration activities contained in a watershed 
conservation plan, NMFS must first find the State of California's 
watershed conservation plan guidelines will generate plans that: (1) 
take into account the potential direct, indirect, and cumulative 
impacts of proposed activities on the threatened salmonids affected by 
the plan activities; (2) will not reduce the likelihood of either 
survival or recovery of listed species in the wild; (3) will ensure 
that any taking of threatened salmonids is incidental to the plan 
activities; (4) minimize and mitigate any adverse impacts from plan 
activities; (5) provide effective monitoring and adaptive management; 
(6) use the best available science and technology, including watershed 
analysis; (7) provide for public and scientific review

[[Page 43160]]

and input; (8) include any measures that NMFS determines are necessary 
or appropriate; 9) include provisions that clearly identify those 
activities that are part of plan implementation; and 10) ensure funding 
and implementation of the plan components listed here.
    Before approving any watershed conservation plan guidelines, NMFS 
will publish a notice in the Federal Register announcing the 
availability of the proposed guidelines for public review and comment. 
Such an announcement will provide for a comment period of not less than 
30 days. NMFS will periodically review the state's watershed 
conservation plan certifications to ensure they adhere to NMFS' 
approved guidelines.

8. Water Diversion Screening Limit on the Take Prohibitions

    This take limit applies to all four threatened ESUs covered by this 
proposed rule. A widely recognized cause of mortality among anadromous 
fish is operation of water diversions without adequate screening. 
Juveniles may be entrained or attracted into diversions 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 recognized these problems in 
varying ways, and have encouraged or required adequate screening of 
diversions to prevent much of the anadromous fish loss attributable to 
this cause. Nonetheless, many diversions are not adequately screened 
and remain a threat, particularly to juvenile salmonids, and 
elimination of that source of injury or death is essential to the 
conservation of listed salmonids.
    For these reasons, this proposed rule encourages all water 
diverters to move quickly to provide adequate screening or other 
protections for their diversions by not applying ESA section 9 take 
prohibitions to any diversion that is screened, maintained, and 
operated in accordance with NMFS' Southwest Region Fish Screening 
Criteria for Anadromous Salmonids (see ADDRESSES). Compliance with 
these criteria will address the problems associated with water 
diversions lacking adequate screening. If a diversion is screened, 
maintained and operated consistent with these screening criteria, NMFS 
concludes that adequate safeguards will be in place such that 
imposition of the section 9 take prohibitions is neither necessary or 
advisable for the conservation of the threatened salmonid ESUs 
considered in this proposed rule. Coverage under this take limitation 
requires that NMFS' Southwest Region engineering staff, or any resource 
agency or tribal representative NMFS designates as an authorized 
officer, agrees in writing that the diversion facility is screened, 
maintained, and operated in compliance with the screening criteria.
    On a case-by-case basis, this take limitation may be applied in 
situations where NMFS' engineering staff (or a NMFS-authorized officer) 
have approved a juvenile fish screen design, construction plan, and 
schedule that a water diverter proposes for screen installation. Such a 
plan must also describe interim operations measures that will reduce 
the likelihood of taking the threatened salmonids considered by this 
proposed rule. NMFS may require a commitment of compensatory mitigation 
if implementation of the plan is terminated prior to its completion. If 
the NMFS-approved plan and schedule are not met, or if a schedule 
modification is made that is not pre-approved, the water diversion 
would be subject to the section 9 take prohibitions.
    Under this take limitation, the proposed take prohibitions would 
not apply to physical impacts to listed salmonids covered by this rule 
due to entrainment or similar impacts of the act of diverting, provided 
the diversion facility has been screened according to NMFS criteria and 
is being properly maintained. However, this limit does not cover 
impacts or take resulting from reduced flows resulting from operation 
of the diversion or impacts caused by construction and/or installation 
of the diversion structure. Such activities and impacts would be 
subject to the proposed take prohibitions.

9. Routine Road Maintenance Limit on the Take Prohibitions

    This take limit applies to all four threatened ESUs covered by this 
proposed rule. Routine road maintenance activities, in certain 
specified circumstances, can be conducted in a manner that will not 
further degrade or otherwise restrict attainment of properly 
functioning conditions for threatened salmonids. Specifically, NMFS 
determined in its July 2000 4(d) rule (65 FR 42422) that routine road 
maintenance activities conducted in accordance with the Oregon 
Department of Transportation's (ODOT) Maintenance Management System 
Water Quality and Habitat Guide (June, 1999) will contribute to the 
attainment of properly functioning habitat conditions, and therefore, 
the conservation of threatened salmonids. Because the ODOT road 
maintenance program was found to contribute to the attainment of 
properly functioning habitat conditions and thereby limit impacts on 
threatened salmonids and their habitat, NMFS concluded in its July 2000 
4(d) rule (65 FR 42422) that application of the section 9 take 
prohibitions to these activities was unnecessary for the conservation 
of the threatened ESUs covered by that rule.
    Under the take limitation in this proposed rule, NMFS does not find 
it necessary or advisable to apply the ESA section 9 take prohibitions 
to routine road maintenance activities in California provided that: (1) 
they are conducted by the employees or agents of the state or any 
county, city, or port under a program that complies with a program that 
is substantially similar to that contained in the ODOT Guide and has 
been determined by NMFS to meet or exceed the protections provided by 
the ODOT guide, or that (2) they are conducted by employees or agents 
of the State or any county, city, or port in a manner that has been 
found by NMFS to contribute to properly functioning habitat conditions 
for the threatened salmonid ESUs considered in this proposed rule.
    NMFS' determination and approval that any state, city, county, or 
port program is equivalent to the ODOT road maintenance program, and, 
therefore, qualifies under this take limit, will be in the form of a 
written approval by the NMFS Southwest Regional Administrator. Any 
jurisdiction desiring its road maintenance program activities to 
qualify under this limit based on equivalence to the ODOT program must 
have adopted road maintenance guidelines equivalent to or better than 
that of the ODOT program and commit in writing to apply those 
management practices.
    NMFS' determination and approval that any state, city, county, or 
port program contributes to the attainment and maintenance of properly 
functioning habitat conditions, and, therefore, qualifies under this 
take limit, will be in the form of a written approval from the 
Southwest Regional Administrator. NMFS' determination in this case will 
be based on an assessment of the extent to which the program 
contributes to attaining and maintaining properly functioning habitat 
conditions. For the purposes of this assessment, NMFS will define 
properly functioning habitat conditions as the sustained presence of 
natural habitat-forming

[[Page 43161]]

processes that are necessary for the long-term survival of salmonids 
through the full range of environmental variation. In order to 
contribute to properly functioning habitat conditions, actions that 
affect salmonid habitat must not impair habitat that is already 
properly functioning, appreciably reduce the functioning of already 
impaired habitat, or retard the long-term progress of impaired habitat 
toward a properly functioning condition. NMFS will periodically 
evaluate an approved road maintenance program to determine its 
effectiveness in maintaining and achieving properly functioning habitat 
conditions.
    Prior to approving any state, city, county or port program under 
this take limit, NMFS will publish a notification in the Federal 
Register announcing the availability of the program or any revisions to 
the program for public review and comment. Such an announcement will 
provide for a comment period of not less than 30 days.

10. Municipal, Residential, Commercial and Industrial (MRCI) 
Development and Redevelopment Limit on Take Prohibitions

    This take limit will apply to all four threatened ESUs covered by 
this proposed rule. MRCI development and redevelopment have a 
significant potential to injure or kill threatened salmonids or degrade 
salmonid habitat in a variety of ways. NMFS believes that with 
appropriate safeguards, new MRCI development and redevelopment can be 
specifically tailored to minimize impacts on listed salmonids to an 
extent that makes additional Federal ESA protections unnecessary for 
the conservation of threatened salmonids. In this rule, NMFS has 
proposed a mechanism whereby jurisdictions can be assured that 
development and redevelopment authorized within their areas avoids or 
minimizes impacts and the risk of taking threatened salmonids, and is 
thereby consistent with the requirements of the ESA. Both developers 
and jurisdictions controlling development would benefit from assurances 
that their approvals and development actions contribute to the 
conservation of threatened salmonids.
    Under this take limitation, NMFS proposes that the ESA section 9 
take prohibitions will not be applied to MRCI development and 
redevelopment governed by and conducted in accord with city, county, or 
regional government ordinances or plans that have been found to 
adequately protect the threatened species considered in this proposed 
rule. In making a determination whether city, county, or regional 
government ordinances or plans adequately conserve threatened salmonids 
covered under this proposed rule, NMFS will assess and evaluate whether 
the ordinances or plans will contribute to maintaining and restoring 
properly functioning habitat conditions. For this assessment, NMFS will 
define properly functioning habitat conditions as the sustained 
presence of natural habitat-forming processes that are necessary for 
the long-term survival of salmonids through the full range of 
environmental variation. In order to contribute to properly functioning 
habitat conditions, activities that affect salmonid habitat must not 
impair habitat that is already properly functioning, appreciably reduce 
the functioning of already impaired habitat, or retard the long-term 
progress of impaired habitat toward a properly functioning condition.
    When making an assessment as to whether or not a MRCI development 
or redevelopment ordinance or plan adequately conserves threatened 
salmonids, NMFS will individually apply 12 evaluation considerations. 
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 these 12 considerations will have to be applied in the context 
within which the development is addressed in the ordinance or plan. The 
12 evaluation considerations are as follows:
    (1) The MRCI development or redevelopment ordinance or plan ensures 
that development will not take place in inappropriate areas such as 
unstable slopes, wetlands, areas of high habitat value, and similarly 
constrained sites.
    (2) The MRCI development or redevelopment ordinance or plan 
adequately avoids stormwater discharge impacts to water quality and 
quantity or to stream flow patterns (i.e., hydrograph) in the 
watershed, including peak and base flows in perennial streams. 
Stormwater management programs should require development activities to 
avoid impairing water quality and quantity, and should preserve or 
enhance flow patterns so that they mimic historic stream flow patterns 
(e.g. peak flows, base flows, durations of flow, volumes and 
velocities. This can be accomplished by reducing impervious surfaces 
and maintaining natural vegetation cover and soils to the maximum 
extent possible.
    (3) The MRCI development or redevelopment ordinance or plan 
provides adequate protective riparian area management requirements in 
order to attain or maintain properly functioning habitat conditions 
adjacent to all rivers, streams, intermittent streams, and estuaries. 
Where necessary, compensatory mitigation is provided to offset 
unavoidable impacts to properly functioning habitat conditions in 
riparian habitat areas resulting from MRCI development or 
redevelopment.
    Limiting development activities in riparian areas helps protect or 
restore the condition and quality of soil and ensure that a diversity 
of vegetation is well distributed within a riparian area. Such 
conditions contribute to natural vegetation succession and help protect 
the water quality and flow conditions necessary to meet salmonid 
habitat requirements. The available scientific evidence indicates that 
the essential habitat functions of the riparian zone are affected to 
varying degrees by stream side development activities that occur within 
a distance equal to the height of the tallest tree that can grow on 
that site. This distance, however, can vary substantially and should be 
determined on a site-specific basis which takes into account the 
conditions of the site and the type of habitat that may be affected by 
the development.
    (4) The MRCI development or redevelopment ordinance or plan avoids 
stream crossings by road, utilities and other linear development 
whenever possible, and where such crossings must be provided, impacts 
are minimized. Where crossings are unavoidable, ordinances or plans 
should consider minimizing their impacts by indicating a preference for 
bridges rather than culverts, and design both bridges and culverts to 
pass at least the 100-year flow level and debris associated with a 100-
year flood event. In addition, the ordinance or plan should indicate 
that crossings and culverts meet NMFS' Southwest Region Guidelines for 
Salmonid Passage at Stream Crossings, May 2000. The ordinance or plan 
should also assure that all crossings are regularly monitored and 
maintained.
    (5) The MRCI development or redevelopment ordinance or plan should 
adequately protect historic stream meander patterns and channel 
migration zones, and avoid hardening stream banks and shorelines 
wherever possible. Development activities should be designed to protect 
conditions that allow for gradual bank erosion, flooding, and channel 
meandering within the zone where meandering would naturally

[[Page 43162]]

occur. This more natural channel promotes gravel recruitment, 
geomorphic diversity, and habitat development. When bank erosion must 
be controlled, it should be accomplished through vegetation or 
bioengineered solutions wherever possible. Rip-rap blankets or other 
hardening techniques should be limited to those situations where 
vegetation and bioengineering solutions are not possible.
    (6) The MRCI development or redevelopment ordinance or plan should 
adequately protect wetlands, wetland buffers, and wetland function. 
Protection of wetlands and the vegetation surrounding them will avoid 
or minimize soil, vegetation, and hydrology disturbances which can 
affect wetland succession and function, and, therefore, salmonid 
habitat and food availability.
    (7) The MRCI development or redevelopment ordinance or plan 
adequately preserves the hydrologic capacity of permanent and 
intermittent streams to pass peak flows. Preserving hydrologic capacity 
provides conditions on the landscape necessary for maintaining 
essential habitat processes such as water quantity and quality, stream 
bank and channel stability, groundwater flows, and riparian vegetation 
succession.
    (8) The MRCI development or redevelopment ordinance or plan 
includes adequate provisions for landscaping with native vegetation to 
reduce the need for watering and the application of herbicides, 
pesticides, and fertilizer. These provisions will maintain essential 
habitat processes by helping to conserve water and reduce demands on 
instream flows that compete with fish needs. In addition, they will 
reduce the amount of chemicals that contribute to water pollution.
    (9) The MRCI development or redevelopment ordinance or plan 
includes provisions that prevent run-off during and after construction, 
thereby preventing sediment and pollutant discharges to streams and 
other water bodies that support salmonids. These provisions may include 
detention of flow, stabilizing soils, protecting slopes, stabilizing 
channels and outlets, protecting drain inlets, controlling pollutants, 
and maintaining best management practices.
    (10) The MRCI development or redevelopment ordinance or plan 
ensures that water supply demands can be met without impacting instream 
flows needed for salmonids, and that any new water diversions are sited 
and screened in a manner that prevent injury and death of salmonids.
    (11) The MRCI development or redevelopment ordinance or plan 
includes mechanisms to ensure that funding, enforcement, implementation 
monitoring, and reporting occur as the ordinance or plan is 
implemented, and that the ordinance or plan is re-evaluated at least 
once every 5 years.
    (12) The MRCI development or redevelopment ordinance or plan 
demonstrates that it is in compliance with all other state and Federal 
environmental and natural resource laws and permits.
    NMFS' determination that city, county, or regional jurisdictional 
MRCI development or redevelopment ordinances or plans contribute to the 
attainment and maintenance of properly functioning habitat conditions, 
and thereby fall within this take limitation, will be in the form of a 
written approval from the Southwest Regional Administrator. As a 
condition of approval and to continue within this take limitation, 
city, county, or regional jurisdictions with approved ordinances or 
plans must provide NMFS with annual reports regarding the 
implementation and effectiveness of the ordinances or plans. NMFS will 
review these reports and evaluate approved ordinances or plans for 
their effectiveness in maintaining and achieving habitat conditions and 
function that provide for the conservation of threatened salmonids. As 
necessary, NMFS will work with the jurisdiction to modify ordinances or 
plans to achieve the desired habitat conditions.
    Prior to approving a city, county, or regional government ordinance 
or plan for development or redevelopment under this take limitation, 
NMFS will publish a notification in the Federal Register announcing the 
availability of the ordinance or plan for public review and comment. 
Such an announcement will provide for a comment period of not less than 
30 days.

Public Comments Solicited

    NMFS is soliciting comments, information, and/or recommendations on 
any aspect of this proposed rule from all concerned parties (see DATES 
and ADDRESSES). NMFS will consider all information, comments, and 
recommendations received before reaching a final decision on 4(d) 
protections for the threatened salmonid ESUs covered in this proposed 
rule.

Public Hearings

    In a forthcoming Federal Register notification, NMFS will announce 
the dates and locations of public hearings on this proposed rule to 
provide the opportunity for the public to give comments and to permit 
an exchange of information and opinion among interested parties. NMFS 
encourages the public's involvement in such ESA matters.

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.
    In accordance with the requirements of the RFA, therefore, NMFS has 
prepared an IRFA for this proposed ESA 4(d) rule. The IRFA is available 
upon request (see ADDRESSES). A summary of the IRFA follows.
    This proposed ESA 4(d) rule has no specific requirements for 
regulatory compliance; instead, it essentially sets an enforceable 
performance standard (i.e., 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 potentially broad.
    The number of entities potentially affected by imposition of the 
ESA section 9 take prohibitions contained in the proposed rule is large 
and covers a large geographic which includes the Sacramento River basin 
in California's central valley, as well as coastal watersheds ranging 
from just north of the Russian River to Redwood Creek.

[[Page 43163]]

 Activities potentially affecting salmon and steelhead ESUs covered by 
the proposed rule are those associated with agriculture, fishing, 
hatcheries, 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 may potentially be impacted. The activities of some 
nonprofit organizations may also be affected by these regulations.
    NMFS examined 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. Finally, many of the activities that 
would be subject to the take prohibitions in the proposed rule are 
already subject to the take prohibitions imposed by existing 4(d) rules 
that protect other salmonid ESUs utilizing the same habitat. Thus, 
determining the incremental cost of this rule would require information 
concerning regulated entities' response to previous 4(d) rules, some of 
which have been in effect for only a year.
    Examination of the geographical aspects of overlapping ESUs, and 
consideration of differences in the distribution of the different ESUs 
within river systems revealed three subareas composing the geographic 
extent of the four ESUs combined. Subarea 1 consists of that area 
within which the only change due to the proposed rule would be to allow 
more take limitations than are presently allowed by the existing 4(d) 
rule for the threatened Central California coast coho salmon ESU. The 
section 9 take prohibitions are already in place for this ESU and would 
not be changed by the proposed rule.
    Subarea 2 consists of that area where the proposed take 
prohibitions for the Northern California steelhead and California 
coastal chinook ESUs would be superimposed on the existing take 
prohibitions for portions of two threatened coho salmon ESUs (Central 
California coast and Southern Oregon/Northern California coho ESUs). 
Since steelhead are more widely distributed than coho salmon within 
watersheds in this region, the proposed take prohibitions are expected 
to have some impact on a wide variety of activities.
    Subarea 3 consists of that area where the proposed take 
prohibitions for Central Valley spring chinook and California coastal 
chinook would be superimposed on existing take prohibitions for 
threatened steelhead and endangered winter-run chinook salmon ESUs. In 
this region only a small variety of activities involving deliberate 
take of chinook salmon is expected to be affected.
    The largest economic impacts from the proposed rule, therefore, are 
expected to occur in subarea 2 which lies almost entirely in Humboldt, 
Trinity, Lake, and Mendocino counties. These four counties account for 
only 5% of the population and 4% of the personal income from all the 
counties that occur within the geographic range of the four ESUs 
covered by this proposed rule.
    There are no record keeping or reporting requirements associated 
with imposition of the take prohibition; therefore, it is not possible 
to simplify or tailor record keeping or reporting to be less burdensome 
for small entities. However, some programs for which NMFS may in the 
future find it is unnecessary to prohibit take because they fall under 
one of the proposed take limitations would involve recordkeeping and/or 
reporting to support that continuing determination. NMFS has attempted 
to minimize any burden associated with these programs.
    In formulating this proposed rule, NMFS considered several 
alternative approaches which are described in the IRFA. These included: 
(1) Enacting a ``global'' ESA 4(d) protective regulation for threatened 
species through which NMFS would automatically apply the section 9 take 
prohibitions to all threatened species at the time of listing; (2) 
enacting ESA 4(d) protective regulations that include the take 
prohibitions, but contain no take limits, or only a few limits, on the 
application of the take prohibitions for relatively uncontroversial 
activities such as fish rescue/salvage; (3) enacting ESA 4(d) 
regulations which include the take prohibitions in combination with 
detailed prescriptive requirements applicable to one or more sectors of 
activity; (4) enacting ESA 4(d) protective regulations similar to the 
existing interim 4(d) protective regulations for Southern Oregon/
Northern California coast coho salmon which includes four additional 
limitations on the extension of the take prohibitions, for harvest 
plans, hatchery plans, scientific research, and habitat restoration 
projects, when in conformance with specified criteria; (5) enacting ESA 
4(d) regulations similar to the interim rule for Southern Oregon/
Northern California coast coho, but with recognition of more programs 
and circumstances in which application of take prohibitions is neither 
necessary or advisable, and (6) enacting no ESA 4(d) protective 
regulations for the threatened salmonid ESUs. This latter approach 
would leave the threatened ESUs without any protection other than 
provided by ESA section 7 consultations for actions with some Federal 
nexus, and would not be consistent with NMFS' obligation to enact such 
protective regulations that are ``necessary and advisable to provide 
for the conservation of'' threatened salmon and steelhead.
    The approach taken in this proposed rule is alternative 5 which 
would impose the section 9 take prohibition and also create 10 limits 
to the take prohibitions for specific circumstances or categories of 
activity (see discussion of take limitations in this proposed rule). 
This approach is fundamentally the same as that taken in NMFS's July 
2000 4(d) rule for 14 threatened salmonids (65 FR 42422). For several 
of these activity categories (i.e., recreational harvest, artificial 
propagation, habitat restoration, road maintenance, and municipal, 
residential, commercial and industrial 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 and 
approval under criteria described in the rule.
    All of the other alternatives which provide take prohibitions for 
the threatened ESUs, may result in unnecessary impacts on economic 
activity of small entities, given NMFS' judgment that more limited 
protections would suffice to conserve the species. NMFS believes the 
proposed rule provides the greatest latitude for individual entities 
and regulatory agencies to tailor activities and programs to fit 
individual circumstances while avoiding or minimizing take of 
threatened salmonids. At present, NMFS concludes that there are no 
legally viable alternative rules that would have less impact on small 
entities and still fulfill the agency's obligations to protect these 
threatened salmonid ESUs.
    If the proposed rule or any of the other alternatives described in 
the IRFA will impact your economic activity, please comment on whether 
there is a preferable alternative (including any alternatives not 
described herein) that would meet the statutory requirements

[[Page 43164]]

of ESA section 4(d). Please describe the impact that the alternative 
would have on your economic activity and why the alternative is 
preferable.

Executive Order (E.O.) 12866

    Pursuant to E.O. 12866 (58 FR 51735, October 4, 1993), NMFS has 
prepared a draft Regulatory Impact Review (RIR) which considers costs 
and benefits of the ESA 4(d) regulatory alternatives that were 
considered, including the approach taken in this proposed rule. Copies 
of the draft RIR are available for review and comment upon request (see 
ADDRESSES).
    Costs and benefits of the proposed rule and other alternative rule 
making approaches include both quantifiable measures (to the fullest 
extent that these can be usefully estimated) and qualitative measures 
of costs and benefits where estimates cannot be meaningfully made for 
impacts that are essential to consider. The benefit provided by the 
proposed rule, as well as each of the 4(d) alternatives considered by 
NMFS which affords sufficient protection for the threatened ESUs, is 
its contribution to the recovery of the threatened ESUs. No precise 
measure of the benefit of recovery is available. NMFS is requesting 
comments and information (e.g. data sets, studies) that will enable 
quantification of the benefits of the proposed rule.
    Many of the costs of recovering the ESUs addressed by the proposed 
rule (or alternatives that afford equal protection) are shared jointly 
with other listed ESUs that have overlapping geographic distributions 
and must also be recovered. It is not possible to determine what share 
of these joint costs is attributable to adoption of the take 
prohibitions which are in the proposed rule and the alternatives. NMFS 
is requesting comments and information (e.g. data sets, studies) that 
will enable disentangling and quantification of the costs of the 
proposed rule.
    Because the proposed rule would limit application of the section 9 
take prohibition to those State or local programs or activities that 
fall within defined take limit criteria, those programs will contribute 
to the conservation of the threatened ESUs covered by the rule and 
NMFS' involvement will be more collaborative and less often require 
enforcement actions. This approach has the greatest probability that 
compliance burdens will be equally shared, that economic incentives 
will be employed in appropriate cases, and that practical standards 
adapted to the particular characteristics of the State or region will 
aid citizens in reducing the risks of take in an efficient way. For 
these reasons, it is likely that the proposed rule will minimize the 
cost to the public of avoiding or minimizing take over the long term 
among the alternatives considered.
    In order to assess the economic effect of this rule, NMFS is 
seeking to assess the economic effects of the imposition of the take 
prohibitions contained in the July 2000 4(d) rule. This rule became 
effective on September 8, 2000, and January 8, 2001 for the steelhead 
and salmon ESUs respectively, covered by that rule.
    In the absence of 4(d) rules, NMFS provided ESA coverage through 
section 10 research, enhancement, and incidental take permits with 
private entities, or through section 7 consultation with Federal 
agencies. Since implementation of the July 2000 4(d) rule NMFS has 
received plans from various entities in Oregon, Washington, Idaho and 
California for approval under the limits to the take prohibitions. 
States can now send a list of research activities they expect to 
authorize for the following year instead of sending individual section 
10 applications. During promulgation of the July 2000 rule NMFS did not 
have a complete understanding of the economic impacts entities would 
incur as a result of imposition of the take prohibitions. To gain some 
insight as to how entities may have changed their activities in 
response to implementation of the take prohibitions, we have summarized 
the numbers of plans submitted and their status under the July 4(d) 
rule in the following table. While portions of these plans were 
developed independently of the July 4(d) rule, they may have been 
modified in order to qualify for the take limits of the rule, as 
opposed to undergoing ESA section 7 or 10 procedures. Authorization 
under the rescue/salvage limit, City of Portland, Oregon Parks and 
Recreation Department's Pest Management Program and Washington's Forest 
Practices became effective September 8, 2000, and January 8, 2001, for 
the steelhead and salmon ESUs respectively, and are not listed in the 
table. Oregon Department of Transportation's (ODOT's) Routine Road 
Maintenance program also became effective with the effective dates, but 
other entities can qualify for ESA coverage under this limit if they 
use ODOT's program or an equivalent program.

------------------------------------------------------------------------
                                Number    Number              Number of
                               of Plans  of Plans   Number      Plans
            Limit              Received   Pending  of Plans  Expected in
                                to Date  Approval  Approved   Next Year
------------------------------------------------------------------------
Research                             3         0         3      4 yearly
                                                                 (Oregon
                                                              Washington
                                                                  Idaho,
                                                             California)
Fishery Management Plans            13        12         1            33
Hatchery Genetic Management          9         9         0            61
 Plans
Joint State/Tribal Plans             2         0         2            12
Habitat Restoration                  0         0         0             4
 Activities
Diversion Screening                 20         2         0           100
Oregon Department of                 0         0         0          7-10
 Transportation's (ODOT's)
 Routine Road Maintenance or
 Equivalent Plan
Municipal, Residential,              0         0         0            10
 Commercial, and Industrial
 Plans
------------------------------------------------------------------------

    Entities that are now subject to the July 4(d) rule fall into 4 
categories: (1) Those entities who have sought or are actively seeking 
ESA coverage via the July 4(d) rule limits; (2) those who are not sure 
if their activities will harm

[[Page 43165]]

salmonids, but are seeking guidance from NMFS; (3) those who are 
actively seeking ESA coverage via the section 10 or section 7 process; 
and (4) those entities that are taking salmon but are not seeking ESA 
coverage.
    NMFS believes that among the alternative regulatory approaches that 
were considered, the approach taken in this proposed rule will be the 
least costly.

Executive Order 13084--Consultation and Coordination with Indian Tribal 
Governments

    E.O. 13084 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments or the Federal 
government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. This proposed rule 
does not impose substantial direct compliance costs on the communities 
of Indian tribal governments. Accordingly, the requirements of section 
3(b) of E.O. 13084 do not apply to this proposed rule.
    Nonetheless, NMFS intends to inform potentially affected tribal 
governments and solicit their input on the proposed rule. NMFS will 
continue to give careful consideration to all written and oral comments 
received on the proposed rule and will continue its coordination and 
discussions with interested tribes as the agency moves forward toward a 
final 4(d) rule.

Executive Order 13132--Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Neither of those 
circumstances is applicable to this proposed rule. In fact, this 
proposed rule provides a mechanism by which NMFS may defer to state and 
local government programs, where they provide necessary protections for 
threatened salmonids.
    NMFS' July 2000 4(d) rule for 14 threatened salmonids (65 FR 
42422), including three steelhead ESUs in California, was the first 
instance in California where the agency defined some reasonably broad 
categories of activities, both public and private, for which take 
prohibitions were not considered necessary and advisable when specified 
criteria were met. Since that rule was promulgated, NMFS has engaged in 
discussions with various State and local agencies and other 
organizations in California wishing to pursue development of programs 
that would qualify under the various take limits contained in that 
final rule. In addition, NMFS has sought working relationships with 
other governmental and non-governmental organizations, and endeavored 
to promote use of the 4(d) rule. Because some of the threatened ESUs 
addressed in this proposed rule overlap with the ESUs addressed in the 
July 2000 4(d) rule (65 FR 42422), working relationships have already 
been established with many agencies and organizations that will be 
affected by this proposed rule.
    In addition to these efforts, NMFS staff have given 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 staff have met with them whenever possible. 
Lastly, NMFS staff have continued coordination with CDFG aimed at 
developing recreational fisheries and artificial propagation management 
plans and other programs that will be protective of threatened 
salmonids and ultimately may be recognized within the July 2000 rule or 
this 4(d) rule.

Paperwork Reduction Act

    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the 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 
additional collection-of-information requirements subject to review and 
approval by OMB under control number 0648-0399. These requirements have 
been submitted to OMB for approval.
    The public reporting burden per response for these collections of 
information is estimated to average 5 hours for a submission on 
screening of a water diversion or for a report on salmonids assisted, 
disposed of, or salvaged; 20 hours to prepare a road maintenance 
agreement; 30 hours for an urban ordinance development package; and 10 
hours for an urban development annual report.
    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 
instruction, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection-of-
information.
    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, including 
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 October 1, 2001.

National Environmental Policy Act

    NMFS prepared Environmental Assessments (EAs), as defined under the 
authority of the National Environmental Policy Act (NEPA) of 1969, 
addressing each threatened ESU covered by this proposed rule. Based on 
a review and evaluation of the information contained in the EA, NMFS 
has determined that the proposal to promulgate protective regulations 
for four threatened salmonid ESUs, including the creation of 
limitations on the applicability of the prohibition on taking any of 
those salmonids, would not be a major Federal action that would 
significantly affect the quality of the human environment within the 
meaning of section 102(2)(c) of NEPA of 1969. NMFS believes these EAs 
examined appropriate alternatives, and that preparation of an 
Environmental Impact Statement is not required. Copies of the EAs are 
available on request (see ADDRESSES).

List of Subjects in 50 CFR Part 223

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


[[Page 43166]]


    Dated: August 10, 2001.
Bruce. C. Morehead,
Acting 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 continues 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. In Sec. 223.203, paragraphs (a), (b)(1), and (c) are revised and 
introductory text to this section, paragraphs (b)(14) through (b)(22), 
and Appendix A to this section are added to read as follows:


Sec. 223.203  Anadromous fish.

    Available guidance documents cited in the regulatory text are 
listed in Appendix A to this section.
    (a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA 
(16 U.S.C. 1538(a)(1)) relating to endangered species apply to the 
threatened species of salmonids listed in Sec. 223.102(a)(1) through 
(a)(10), and (a)(12) through (a)(22), except as provided in paragraph 
(b) of this section and Sec. 223.209(a).
    (b) Limits on the prohibitions. (1) The exceptions of section 10 of 
the ESA (16 U.S.C. 1539) and other exceptions under the Act relating to 
endangered species, including regulations in part 222 of this chapter 
implementing such exceptions, also apply to the threatened species of 
salmonids listed in Sec. 223.102(a)(1) through (a)(10), and (a)(12) 
through (a)(22).
* * * * *
    (14) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(20) through 
(a)(22) 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 [90 days after 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 [8 months after 
date of publication of the final rule in the FEDERAL REGISTER], 
whichever occurs earliest.
    (15) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3), and 
(a)(20) through (a)(22) do not apply to any employee or designee of 
NMFS, the United States Fish and Wildlife Service, any Federal land 
management agency, the California Department of Fish and Game (CDFG), 
or of any other governmental entity that has co-management authority 
for the listed salmonids, when the employee or designee, acting in the 
course of his or her official duties, takes a threatened salmonid 
without a permit if such action is necessary to:
    (i) Aid a sick, injured, or stranded salmonid,
    (ii) Dispose of a dead salmonid, or
    (iii) Salvage a dead salmonid which may be useful for scientific 
study.
    (iv) Each agency acting under this limit on the take prohibitions 
of paragraph (a) of this section is to report to NMFS the numbers of 
fish handled and their status, on an annual basis. A designee of the 
listed entities is any individual the Federal or state fishery agency 
or other co-manager has authorized in writing to perform the listed 
functions.
    (16) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3), and 
(a)(20) through (a)(22) do not apply to fishery harvest activities 
provided that:
    (i) Fisheries are managed in accordance with a NMFS-approved 
Fishery Management and Evaluation Plan (FMEP) and implemented in 
accordance with a letter of concurrence from NMFS. NMFS will approve an 
FMEP only if it clearly defines its intended scope and area of impact 
and sets forth the management objectives and performance indicators for 
the plan. The plan must adequately address the following criteria:
    (A) Define populations within affected listed ESUs, taking into 
account spatial and temporal distribution, genetic and phenotypic 
diversity, and other appropriate identifiably unique biological and 
life history traits. Populations may be aggregated for management 
purposes when dictated by information scarcity, if consistent with 
survival and recovery of the listed ESU. In identifying management 
units, the plan shall describe the reasons for using such units in lieu 
of population units, describe how the management units are defined, 
given biological and life history traits, so as to maximize 
consideration of the important biological diversity contained within 
the listed ESU, respond to the scale and complexity of the ESU, and 
help ensure consistent treatment of listed salmonids across a diverse 
geographic and jurisdictional range.
    (B) Utilize the concepts of ``viable'' and ``critical'' salmonid 
population thresholds, consistent with the concepts contained in NMFS's 
technical report entitled ``Viable Salmonid Populations and the 
Recovery of ESUs'' (NMFS, 2000b). This report provides a framework for 
identifying the biological requirements of listed salmonids, assessing 
the effects of management and conservation actions, and ensuring that 
such actions provide for the survival and recovery of listed species. 
Proposed management actions must recognize the significant differences 
in risk associated with viable and critical population threshold states 
and respond accordingly to minimize the long-term risks to population 
persistence. Harvest actions impacting populations that are functioning 
at or above the viable threshold must be designed to maintain the 
population or management unit at or above that level. For populations 
shown with a high degree of confidence to be above critical levels but 
not yet at viable levels, harvest management must not appreciably slow 
the population's achievement of viable function. Harvest actions 
impacting populations that are functioning at or below critical 
threshold must not be allowed to appreciably increase genetic and 
demographic risks facing the population and must be designed to permit 
the population's achievement of viable function, unless the plan 
demonstrates that the likelihood of survival and recovery of the entire 
ESU in the wild would not be appreciably reduced by greater risks to 
that individual population.
    (C) Set escapement objectives or maximum exploitation rates for 
each management unit or population based on its status and on a harvest 
program that assures that those rates or objectives are not exceeded. 
Maximum exploitation rates must not appreciably reduce the likelihood 
of survival and recovery of the ESU. Management of fisheries where 
artificially propagated fish predominate must not compromise the 
management objectives for commingled naturally spawned populations.
    (D) Display a biologically based rationale demonstrating that the 
harvest management strategy will not appreciably reduce the likelihood 
of survival and recovery of the ESU in the wild, over the entire period 
of time the proposed harvest management strategy affects the 
population, including effects reasonably certain to occur after the 
proposed actions cease.
    (E) Include effective monitoring and evaluation programs to assess 
compliance, effectiveness, and

[[Page 43167]]

parameter validation. At a minimum, harvest monitoring programs must 
collect catch and effort data, information on escapements, and 
information on biological characteristics, such as age, fecundity, size 
and sex data, and migration timing.
    (F) Provide for evaluating monitoring data and making any revisions 
of assumptions, management strategies, or objectives that data show are 
needed.
    (G) Provide for effective enforcement and education. Coordination 
among involved jurisdictions is an important element in ensuring 
regulatory effectiveness and coverage.
    (H) Include restrictions on resident and anadromous species 
fisheries that minimize any take of listed species, including time, 
size, gear, and area restrictions.
    (I) Be consistent with plans and conditions established within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its fisheries and provides to NMFS on a regular basis, as 
defined in NMFS' letter of concurrence for the FMEP, a report 
summarizing this information, as well as the implementation and 
effectiveness of the FMEP. The state shall provide NMFS with access to 
all data and reports prepared concerning the implementation and 
effectiveness of the FMEP.
    (iii) The state confers with NMFS on its fishing regulation changes 
affecting listed ESUs to ensure consistency with the approved FMEP. 
Prior to approving a new or amended FMEP, NMFS will publish 
notification in the Federal Register announcing its availability for 
public review and comment. Such an announcement will provide for a 
comment period on the draft FMEP of not less than 30 days.
    (iv) NMFS provides written concurrence of the FMEP which specifies 
the implementation and reporting requirements. NMFS' approval of a plan 
shall be a written approval by the NMFS' Southwest Regional 
Administrator. On a regular basis, NMFS will evaluate the effectiveness 
of the program in protecting and achieving a level of salmonid 
productivity commensurate with conservation of the listed salmonids. If 
the program is deficient, NMFS will identify ways in which the program 
needs to be altered or strengthened. If the responsible agency does not 
make changes to respond adequately to the new information, NMFS will 
publish notification in the Federal Register announcing its intention 
to withdraw the limit for activities associated with that FMEP. Such an 
announcement will provide for a comment period of not less than 30 
days, after which NMFS will make a final determination whether to 
withdraw the limit so that the prohibitions would then apply to those 
fishery harvest activities. A template for developing FMEPs is 
available from NMFS' Southwest Region web site (http://swr.nmfs.noaa.gov).
    (v) The prohibitions of paragraph (a) of this section relating to 
threatened species listed in Sec. 223.102 (a)(20) do not apply to 
fishery harvest activities managed solely by the State of California 
until [180 days after date of publication of the final rule in the 
FEDERAL REGISTER].
    (17) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3) and 
(a)(20) through (a)(22) do not apply to activity associated with 
artificial propagation programs provided that:
    (i) A state or Federal Hatchery and Genetics Management Plan (HGMP) 
has been approved by NMFS as meeting the following criteria:
    (A) The HGMP has clearly stated goals, performance objectives, and 
performance indicators that indicate the purpose of the program, its 
intended results, and measurements of its performance in meeting those 
results. Goals shall address whether the program is intended to meet 
conservation objectives, contribute to the ultimate sustainability of 
natural spawning populations, and/or is intended to augment tribal, 
recreational, or commercial fisheries. Objectives should enumerate the 
results desired from the program that will be used to measure the 
program's success or failure.
    (B) The HGMP utilizes the concepts of viable and critical salmonid 
population threshold, consistent with the concepts contained in NMFS' 
technical report entitled: ``Viable Salmonid Populations and Recovery 
of ESUs'' (NMFS, 2000b). Listed salmonids may be purposefully taken for 
broodstock purposes only if the donor population is currently at or 
above the viable threshold and the collection will not impair its 
function; if the donor population is not currently viable but the sole 
objective of the current collection program is to enhance the 
propagation or survival of the listed ESU; or if the donor population 
is shown with a high degree of confidence to be above critical 
threshold although not yet functioning at viable levels, and the 
collection will not appreciably slow the attainment of viable status 
for that population.
    (C) Broodstock collection programs reflect appropriate priorities 
taking into account health, abundances, and trends in the donor 
population. The primary purpose of broodstock collection programs of 
listed species is to re-establish indigenous salmonid populations for 
conservation purposes. Such programs include restoration of similar, 
at-risk populations within the same ESU, and reintroduction of at-risk 
populations to underseeded habitat. After the species' conservation 
needs are met and when consistent with survival and recovery of the 
ESU, broodstock collection programs may be authorized by NMFS for 
secondary purposes such as to sustain tribal, recreational, and 
commercial fisheries.
    (D) The HGMP includes protocols to address fish health, broodstock 
collection, broodstock spawning, rearing and release of juveniles, 
deposition of hatchery adults, and catastrophic risk management.
    (E) The HGMP evaluates, minimizes, and accounts for the propagation 
program's genetic and ecological effects on natural populations, 
including disease transfer, competition, predation, and genetic 
introgression caused by the straying of hatchery fish.
    (F) The HGMP describes interrelationships and interdependencies 
with fisheries management. The combination of artificial propagation 
programs and harvest management must be designed to provide as many 
benefits and as few biological risks as possible for the listed 
species. For those programs of which the purpose is to sustain 
fisheries, HGMPs must not compromise the ability of FMEPs or other 
management plans to conserve listed salmonids.
    (G) The HGMP provides for adequate artificial propagation 
facilities to properly rear progeny of naturally spawned broodstock, to 
maintain population health and diversity, and to avoid hatchery-
influenced selection or domestication.
    (H) The HGMP provides for adequate monitoring and evaluation to 
detect and evaluate the success of the hatchery program and any risks 
potentially impairing the recovery of the listed ESU.
    (I) The HGMP provides for evaluating monitoring data and making any 
revisions of assumptions, management strategies, or objectives that 
data show are needed;
    (J) NMFS provides written concurrence of the HGMP which specifies 
the implementation and reporting requirements. For federally operated 
or funded hatcheries, the ESA

[[Page 43168]]

section 7 consultation will achieve this purpose.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its hatchery program and provides to NMFS on a regular 
basis a report summarizing this information, and the implementation and 
effectiveness of the HGMP as defined in NMFS' letter of concurrence. 
The state shall provide NMFS with access to all data and reports 
prepared concerning the implementation and effectiveness of the HGMP.
    (iii) The state confers with NMFS on a regular basis regarding 
intended collections of listed broodstock to ensure consistency 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 an HGMP shall be a written approval by NMFS' 
Southwest Regional Administrator.
    (vi) On a regular basis, NMFS will evaluate the effectiveness of 
the HGMP in protecting and achieving a level of salmonid productivity 
commensurate with the conservation of the listed salmonids. If the HGMP 
is not effective, NMFS will identify to the responsible agency ways in 
which the program needs to be altered or strengthened. If the 
responsible agency does not make changes to respond adequately to the 
new information, NMFS will publish notification in the Federal Register 
announcing its intention to withdraw the limit on activities associated 
with that program. Such an announcement will provide for a comment 
period of not less than 30 days, after which NMFS will make a final 
determination whether to withdraw the limit so that take prohibitions 
would then apply to that program. A template for developing HGMPs is 
available from NMFS Northwest Region's web site (www.nwr.noaa.gov).
    (vii) The prohibitions of paragraph (a) of this section relating to 
threatened species listed in Sec. 223.102 (a)(20) do not apply to 
artificial propagation programs managed solely by the State of 
California until [180 days after date of publication of the final rule 
in the FEDERAL REGISTER].
    (18) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(3) and 
(a)(20) through (a)(22) do not apply to scientific research activities 
provided that:
    (i) Scientific research activities involving purposeful take are 
conducted by employees or contractors of CDFG or as a part of a 
monitoring and research program overseen by or coordinated with CDFG.
    (ii) CDFG provides for NMFS' review and approval a list of all 
scientific research activities involving direct take planned for the 
coming year, including an estimate of the total direct take that is 
anticipated, a description of the study design, including a 
justification for taking the species and a description of the 
techniques to be used, and a point of contact.
    (iii) CDFG annually provides to NMFS the results of scientific 
research activities directed at threatened salmonids, including a 
report of the direct take resulting from the studies and a summary of 
the results of such studies.
    (iv) Scientific research activities that may incidentally take 
threatened salmonids are either conducted by CDFG personnel, or are in 
accord with a permit issued by the CDFG.
    (v) CDFG provides NMFS annually, for its review and approval, a 
report listing all scientific research activities it conducts or 
permits that may incidentally take threatened salmonids during the 
coming year. Such reports shall also contain the amount of incidental 
take of threatened salmonids occurring in the previous year's 
scientific research activities and a summary of the results of such 
research.
    (vi) Electrofishing in any body of water known or suspected to 
contain threatened salmonids is conducted in accordance with NMFS' 
Guidelines for Electrofishing Waters Containing Salmonids Listed Under 
the Endangered Species Act (NMFS 2000a).
    (vii) NMFS' approval of a research program shall be a written 
approval by NMFS' Southwest Regional Administrator.
    (19) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(3) and 
(a)(20) through (a)(22) do not apply to habitat restoration activities, 
as defined in paragraph (b)(19)(iv), provided that the activity is part 
of a watershed conservation plan, and:
    (i) The watershed conservation plan has been certified by the State 
of California to be consistent with the state's watershed conservation 
plan guidelines.
    (ii) The State's watershed conservation plan guidelines have been 
found by NMFS to provide for plans that:
    (A) Take into account the potential severity of direct, indirect, 
and cumulative impacts of proposed activities in light of the status of 
affected species that are listed as threatened.
    (B) Will not reduce the likelihood of either survival or recovery 
of listed species in the wild.
    (C) Ensure that any taking will be incidental.
    (D) Minimize and mitigate any adverse impacts.
    (E) Provide for effective monitoring and adaptive management.
    (F) Use the best available science and technology, including 
watershed analysis.
    (G) Provide for public and scientific review and input.
    (H) Include any measures that NMFS determines are necessary or 
appropriate.
    (I) Include provisions that clearly identify those activities that 
are part of plan implementation.
    (J) Control risk to listed species by ensuring funding and 
implementation of the above plan components.
    (iii) NMFS will periodically review State certifications of 
watershed conservation plans to ensure adherence to approved watershed 
conservation plan guidelines.
    (iv) Habitat restoration activity is defined as an activity whose 
primary purpose is to restore natural aquatic or riparian habitat 
conditions or processes. Primary purpose means the activity would not 
be undertaken but for its restoration purpose.
    (v) Prior to approving state watershed conservation plan guidelines 
under paragraph (b)(19)(ii) of this section, NMFS will publish 
notification in the Federal Register announcing the availability of the 
proposed guidelines for public review and comment. Such an announcement 
will provide for a comment period on the draft guidelines of not less 
than 30 days.
    (20) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a)(3) and 
(a)(20) through (a)(22) do not apply to the physical diversion of water 
from a stream or lake, provided that:
    (i) NMFS' engineering staff or any resource agency or tribe NMFS 
designates (authorized officer) has agreed in writing that the 
diversion facility is screened, maintained, and operated in compliance 
with NMFS' Southwest Region ``Fish Screening Criteria for Anadromous 
Salmonids, January 1997'' or with any subsequent revision.
    (ii) The owner or manager of the diversion allows any NMFS engineer 
or authorized officer access to the diversion facility for purposes of 
inspection and determination of continued compliance with the criteria.

[[Page 43169]]

    (iii) On a case-by-case basis, NMFS or an Authorized Officer will 
review and may approve a juvenile fish screen design and construction 
plan and schedule that the water diverter proposes for screen 
installation. The plan and schedule will describe interim operation 
measures to avoid take of threatened salmonids. NMFS may require a 
commitment of compensatory mitigation if implementation of the plan and 
schedule is terminated prior to completion. If the plan and schedule 
are not met, or if a schedule modification is made that is not approved 
by NMFS or the Authorized Officer, or if the screen installation 
deviates from the approved design, the water diversion will be subject 
to take prohibitions and mitigation.
    (iv) This limit on the prohibitions of paragraph (a) of this 
section does not include any impacts or take caused by reduced flows 
resulting from the diversion or impacts caused during installation of 
the diversion device. These impacts are subject to the prohibition on 
take of listed salmonids.
    (21) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3) and 
(a)(20) through (a)(22) do not apply to routine road maintenance 
activities provided that:
    (i) The activity results from routine road maintenance conducted by 
employees or agents of the State of California, or any county, city or 
port in California, that complies with a program substantially similar 
to that contained in the Oregon Department of Transportation's (ODOT) 
Transportation Maintenance Management System Water Quality and Habitat 
Guide (July, 1999) or that is determined to meet or exceed the 
protections provided by the ODOT Guide; or by employees or agents of 
the State of California or any county, city or port in California that 
complies with a routine road maintenance program that meets proper 
functioning habitat conditions as described further in paragraph 
(a)(21)(ii) of this section. NMFS' approval of state, city, county, or 
port programs that are equivalent to the ODOT program, or of any 
amendments, shall be a written approval by NMFS' Southwest Regional 
Administrator. Any jurisdiction desiring its routine road maintenance 
activities to be considered within this limit must first commit in 
writing to apply management practices that result in protections 
equivalent to or better than those provided by the ODOT Guide, 
detailing how it will assure adequate training, tracking, and 
reporting, and describing in detail any dust abatement practices it 
requests to be covered.
    (ii) NMFS finds the routine road maintenance activities of the 
State of California, or any city, county, or port, to be consistent 
with the conservation of threatened salmonids' habitat when it 
contributes to the attainment and maintenance of properly functioning 
condition (PFC). NMFS defines PFC as the sustained presence of natural 
habitat-forming processes that are necessary for the long-term survival 
of salmonids through the full range of environmental variation. Actions 
that affect salmonid habitat must not impair properly functioning 
habitat, appreciably reduce the functioning of already impaired 
habitat, or retard the long-term progress of impaired habitat toward 
PFC. Periodically, NMFS will evaluate an approved program for its 
effectiveness in maintaining and achieving habitat function that 
provides for conservation of the listed salmonids. Whenever warranted, 
NMFS will identify ways in which the program needs to be altered or 
strengthened. Changes may be identified if the program is not 
protecting desired habitat functions, or where even with the habitat 
characteristics and functions originally targeted, habitat is not 
supporting population productivity levels needed to conserve the 
threatened ESUs. If any jurisdiction within the limit does not make 
changes to respond adequately to the new information in the shortest 
amount of time feasible, but not longer than one year, NMFS will 
publish notification in the Federal Register announcing its intention 
to withdraw the limit so that take prohibitions would then apply to the 
program. Such an announcement will provide for a comment period of no 
less than 30 days, after which NMFS will make a final determination 
whether to subject the activities to the ESA section 9(a)(1) 
prohibitions.
    (iii) Prior to implementing any changes to a program within this 
limit the jurisdiction provides NMFS a copy of the proposed change for 
review and approval as to being within this limit.
    (iv) Prior to approving any State of California, city, county, or 
port program as being within this limit, or approving any substantive 
change in a program as being within this limit, NMFS will publish 
notification in the Federal Register announcing the availability of the 
program or the draft changes for public review and comment. Such an 
announcement will provide for a comment period of not less than 30 
days.
    (v) Pesticide and herbicide spraying is not included within this 
limit, even if in accord with the ODOT guidance.
    (22) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 (a)(3) and 
(a)(20) through (a)(22) do not apply to municipal, residential, 
commercial, and industrial (MRCI) development (including redevelopment) 
activities provided that:
    (i) Such development occurs pursuant to city, county, or regional 
government ordinances or plans that NMFS has determined are adequately 
protective of threatened species by maintaining or restoring properly 
functioning habitat conditions. NMFS approval or determinations about 
any MRCI development ordinances or plans shall be a written approval by 
the NMFS Southwest Regional Administrator. NMFS will apply the 
following 12 evaluation considerations when reviewing MRCI development 
ordinances or plans to assess whether they adequately conserve 
threatened salmonids by maintaining and restoring properly functioning 
habitat conditions:
    (A) The MRCI development ordinance or plan ensures that development 
will avoid inappropriate areas such as unstable slopes, wetlands, areas 
of high habitat value, and similarly constrained sites.
    (B) The MRCI development ordinance or plan adequately avoids 
stormwater discharge impacts to water quality and quantity or to the 
hydrograph of the watershed, including peak and base flows of perennial 
streams.
    (C) The MRCI development ordinance or plan provides adequately 
protective riparian area management requirements to attain or maintain 
PFC around all rivers, estuaries, streams, lakes, deepwater habitats, 
and intermittent streams. Compensatory mitigation is provided, where 
necessary, to offset unavoidable damage to properly functioning habitat 
conditions caused by MRCI development impacts to riparian management 
areas.
    (D) The MRCI development ordinance or plan avoids stream crossings 
by roads, utilities, and other linear development wherever possible, 
and, where crossings must be provided, minimizes impacts through choice 
of mode, sizing, and placement.
    (E) The MRCI development ordinance or plan adequately protects 
historical stream meander patterns and channel migration zones and 
avoids hardening of stream banks and shorelines.
    (F) The MRCI development ordinance or plan adequately protects 
wetlands and wetland functions, including isolated wetlands.
    (G) The MRCI development ordinance or plan adequately preserves the

[[Page 43170]]

hydrologic capacity of permanent and intermittent streams to pass peak 
flows.
    (H) The MRCI development ordinance or plan includes adequate 
provisions for landscaping with native vegetation to reduce need for 
watering and application of herbicides, pesticides, and fertilizer.
    (I) The MRCI development ordinance or plan includes adequate 
provisions to prevent erosion and sediment run-off during construction.
    (J) The MRCI development ordinance or plan ensures that water 
supply demands can be met without impacting flows needed for threatened 
salmonids either directly or through groundwater withdrawals and that 
any new water diversions are positioned and screened in a way that 
prevents injury or death of salmonids.
    (K) The MRCI development ordinance or plan provides necessary 
enforcement, funding, reporting, and implementation mechanisms and 
formal plan evaluations at intervals that do not exceed 5 years.
    (L) The MRCI development ordinance and plan complies with all other 
state and Federal environmental and natural resource laws and permits.
    (ii) The city, county or regional government provides NMFS with 
annual reports regarding implementation and effectiveness of the 
ordinances, including: any water quality monitoring information the 
jurisdiction has available; aerial photography (or some other graphic 
display) of each MRCI development or MRCI expansion area at sufficient 
detail to demonstrate the width and vegetation condition of riparian 
set-backs; information to demonstrate the success of stormwater 
management and other conservation measures; and a summary of any flood 
damage, maintenance problems, or other issues.
    (iii) NMFS finds the MRCI development activity to be consistent 
with the conservation of threatened salmonids' habitat when it 
contributes to the attainment and maintenance of properly functioning 
habitat conditions. For this purpose, NMFS defines properly functioning 
habitat conditions as the sustained presence of a watershed's habitat-
forming processes that are necessary for the long-term survival of 
salmonids through the full range of environmental variation. To 
contribute to the attainment and maintenance of properly functioning 
habitat conditions, activities that affect salmonid habitat must not 
impair properly functioning habitat, appreciably reduce the functioning 
of already impaired habitat, or retard the long-term progress of 
impaired habitat toward achieving properly functioning habitat 
conditions. Periodically, NMFS will evaluate an approved program for 
its effectiveness in maintaining and achieving habitat function that 
provides for conservation of the listed salmonids. Whenever warranted, 
NMFS will identify to the jurisdiction ways in which the program needs 
to be altered or strengthened. Changes may be identified if the program 
is not protecting desired habitat functions, or where even with the 
habitat characteristics and functions originally targeted, habitat is 
not supporting population productivity levels needed to conserve the 
threatened species. If any jurisdiction within the limit does not make 
changes to respond adequately to the new information in the shortest 
amount of time feasible, but not longer than 1 year, NMFS will publish 
notification in the Federal Register announcing its intention to 
withdraw the limit so that take prohibitions would then apply to the 
program. 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 the ESA section 9(a)(1) 
prohibitions.
    (iv) Prior to approving any city, county, or regional government 
ordinances or plans as being within this limit, or approving any 
substantive change in an ordinance or plan as being within this limit, 
NMFS will publish notification in the Federal Register announcing the 
availability of the ordinance or plan or the draft changes for public 
review and comment. Such an announcement will provide for a comment 
period of no less than 30 days.
    (c) Affirmative defense. In connection with any action alleging a 
violation of the prohibitions of paragraph (a) of this section with 
respect to the threatened species of salmonids listed in Sec. 223.102 
(a)(3), (a)(5) through (a)(10) and (a)(12) through (a)(22), any person 
claiming the benefit of any limit listed in paragraph (b) of this 
section or Sec. 223.209(a) shall have a defense where the person can 
demonstrate that the limit is applicable and was in force, and that the 
person fully complied with the limit at the time of the alleged 
violation. This defense is an affirmative defense that must be raised, 
pleaded, and proven by the proponent. If proven, this defense will be 
an absolute defense to liability under section 9(a)(1)(G) of the ESA 
with respect to the alleged violation.
* * * * *

Appendix A to Sec. 223.203--List of Guidance Documents

    The following is a list of documents cited in the regulatory 
text. Copies of these documents may be obtained upon request from 
the Northwest or Southwest Regional Administrators (see Table 1 in 
Sec. 600.502 of this title).
    1. Oregon Department of Transportation (ODOT) Maintenance 
Management System Water Quality and Habitat Guide (July, 1999).
    2. Guidelines for Electrofishing Waters Containing Salmonids 
Listed Under the Endangered Species Act.
    3. Fish Screening Criteria for Anadromous Salmonids, National 
Marine Fisheries Service, Southwest Region, 1997.
    4. Viable Salmonid Populations and the Recovery of 
Evolutionarily Significant Units. (June 2000).
[FR Doc. 01-20570 Filed 8-16-01; 8:45 am]
BILLING CODE 3510-22-S