[Federal Register Volume 67, Number 6 (Wednesday, January 9, 2002)]
[Rules and Regulations]
[Pages 1116-1133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-440]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 010521133-1307-02; I.D. No. 050101B]
RIN 0648-AP17


Endangered and Threatened Species; Final Rule Governing Take of 
Four Threatened Evolutionarily Significant Units (ESUs) of West Coast 
Salmonids

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

ACTION: Final rule.

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SUMMARY: Under the Endangered Species Act (ESA), the Secretary of 
Commerce (Secretary) shall issue such regulations as he deems necessary 
and advisable for the conservation of species listed as threatened. 
NMFS now issues a final ESA 4(d) rule adopting regulations necessary 
and advisable to conserve four salmonid ESUs listed as threatened 
species. This final rule applies the take prohibitions enumerated in 
section 9(a)(1) of the ESA in most circumstances to three salmonid ESUs 
in California: California Central Valley Chinook, California Coastal 
Chinook, and Northern California steelhead. For these three ESUs, NMFS 
does not find it necessary and advisable to apply the take prohibitions 
described in the ESA to certain specified categories of activities that 
contribute to conserving these ESUs or are governed by a program that 
adequately limits impacts on these ESUs. Therefore, this final rule 
also includes 10 such limits on the application of the section 9(a)(1) 
take prohibitions for these three ESUs. This final rule also modifies 
an existing ESA 4(d) rule, which applies the take prohibitions to the 
threatened Central California Coast coho ESU, by incorporating the same 
10 limits on the application of the take prohibitions as described for 
the chinook and steelhead ESUs.

DATES: Effective on March 11, 2002, except for Sec. 223.203 (b)(16)(v) 
and (b)(17)(vii) which are effective on July 8, 2002. Applications for 
a permit for scientific purposes or a permit to enhance the 
conservation or survival of Central Valley spring-run chinook, 
California Coastal chinook and Northern California steelhead must be 
received by the Assistant Administrator for Fisheries no later than 
April 9, 2002.

ADDRESSES: Assistant Regional Administrator, Protected Resources 
Division, NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long 
Beach, CA 90802-4213.

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.
    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 the final listing notice for the CCC 
coho salmon ESU, NMFS published a final ESA 4(d) rule which put in 
place all of the prohibitions of section 9(a)(1) of the ESA for this 
ESU.
    Section 4(d) of the ESA provides that whenever a species is listed 
as threatened, the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of the species. 
Such protective regulations may include any or all of the prohibitions 
that apply automatically to protect endangered species under ESA 
section 9(a). Those section 9(a) prohibitions, in part, make it illegal 
for any person subject to the jurisdiction of the United States to take 
(including harass, harm, pursue, hunt, shoot, wound, kill, trap, or 
collect; or to attempt any of these), import or export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any wildlife species 
listed as

[[Page 1117]]

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 
final 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, hydropower development, hatchery 
practices, 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 the ESUs 
covered by this rule, 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 in fisheries, and hatchery effects as significant 
factors for the decline of these ESUs. While the most influential 
factors for decline differ from species to species and among ESUs 
depending on their geographic location, the loss and degradation of 
habitat conditions and impacts from harvest among other impacts, are 
factors that have affected all of the species and ESUs. Accordingly, 
NMFS has determined that it is necessary and advisable to apply the 
section 9(a)(1) take prohibitions to the threatened ESUs covered in 
this final rule in order to reduce take and provide for their 
conservation.
    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. 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.
    For this reason, NMFS has incorporated a mechanism (termed take 
limitations) in this final ESA 4(d) rule where state, local and other 
non-Federal entities can be assured that certain activities (see 
Substantive Content of Final Regulation for the 10 categories of 
activities specified in this rule) they conduct or permit are 
consistent with ESA requirements when they avoid or minimize the risk 
of take of listed ESUs. When NMFS determines that such programs 
provides sufficient conservation for the threatened salmonid ESUs 
covered by this final rule, NMFS will find that it is not necessary and 
advisable to apply take prohibitions to activities governed by those 
programs. In these circumstances, as described in more detail herein, 
additional Federal ESA regulation through the section 9(a) take 
prohibitions is not necessary and advisable because it would not 
meaningfully contribute to the conservation of the ESUs. NMFS believes 
that not applying take prohibitions to programs that meet such 
conservation standards may result in even greater conservation benefits 
for these threatened ESUs 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 using this take limitation approach is that NMFS 
can focus its enforcement efforts on activities and programs that have 
not yet adequately addressed the conservation needs of the ESUs covered 
by this rule.

Substantive Content of Final Regulation

    On August 17, 2001, NMFS proposed to apply the ESA section 9(a)(1) 
take prohibitions to the CCV spring-run chinook salmon, CC chinook 
salmon, and NC steelhead ESUs. NMFS has concluded that the section 9 
take prohibitions that automatically apply to endangered species are 
necessary and advisable for the conservation of these three threatened 
ESUs. Accordingly, this final rule applies the prohibitions of ESA 
section 9(a)(1) to each of these three ESUs. NMFS applied the section 
9(a)(1) take prohibitions to the CCC coho salmon ESU in a previous 
rulemaking (see 61 FR 56138), and the August 17, 2001, proposed rule 
(66 FR 43150) did not propose to change those protections.
    In its August 17, 2001, proposal (66 FR 43150), NMFS proposed that 
the take of listed fish in these four ESUs (i.e., CCV spring-run 
chinook, CC chinook, NC steelhead, and CCC coho salmon) would not be 
prohibited when it resulted from 10 specific categories of activities 
that meet specified levels of protection and conservation. As described 
in the proposed rule, these activities must be conducted in a way that 
contributes to the conservation of these ESUs, or they must be governed 
by a program that limits impacts on the ESUs to an extent that makes 
added protection through Federal regulation not necessary and advisable 
for their conservation. In this final rule NMFS has concluded that it 
will not apply the ESA section 9(a) prohibitions to these four ESUs for 
the 10 categories of activities described in this final rule when they 
meet the necessary level of protection and conservation.
    As an alternative to utilizing the 10 limitations on the take 
prohibitions described in this final rule, affected entities may choose 
to seek an ESA section 10 permit from NMFS, or may be required to 
satisfy ESA section 7 consultation if Federal funding, management, or 
approval is involved. This final rule does not impose restrictions 
beyond those applied in other sections of the ESA, but rather provides 
another option beyond the provisions of sections 7 and 10 for the 
authorization of incidental take and in some instances directed take.
    As discussed above, NMFS has identified 10 categories of activities 
or programs for which it is not necessary and advisable to impose take 
prohibitions when they contribute to the conservation of these four 
ESUs or are governed by a program that adequately limits impacts on 
these ESUs. Under the criteria specified in the final rule, these 
activities include the following: (1) Activities conducted in 
accordance with an existing 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 
limitations on the take prohibitions are described in more

[[Page 1118]]

detail in the proposed rule and the specific criteria and standards 
that must be met to qualify for the limitations are described in detail 
in the regulations contained in this final rule. In general, these take 
limitations and associated approval criteria are for future programs 
where NMFS will limit the application of the ESA section 9(a)(1) take 
prohibitions rather than for existing programs. NMFS anticipates that 
new take limits for additional activities may be added to these 
regulations in the future.
    NMFS emphasizes that these 10 limitations on the section 9 take 
prohibitions are not prescriptive regulations. The fact that an 
activity is not conducted within the specified criteria for one of the 
10 take limits does not necessarily mean that the activity violates the 
ESA or this regulation. Many activities do not affect the threatened 
ESUs covered by this final rule, and, therefore, do not need to be 
conducted within any of the 10 categories of take limits to avoid ESA 
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. Jurisdictions, entities, and individuals are 
encouraged to evaluate their practices and activities to determine the 
likelihood of whether take is occurring. Entities can comply with the 
ESA through this and other 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) rule procedures.
    This final rule does not require jurisdictions, entities, and 
individuals to seek coverage from NMFS under any of the 10 take limits. 
In order to reduce its liability, a jurisdiction, entity, or individual 
may informally comply with a limit by choosing to modify its programs 
to be consistent with the evaluation considerations described in the 
individual limits. Alternatively, a jurisdiction, entity, or individual 
may seek, at its discretion, to qualify its plans, activities, or 
ordinances for inclusion under one of the 10 take limits by obtaining 
an authorization from the NMFS' Southwest Region Administrator as 
detailed in the regulations contained in this final rule (see 
ADDRESSES).
    NMFS will continue to work collaboratively with all affected 
governmental entities to recognize existing management programs that 
conserve and meet the biological requirements of these and other 
threatened salmonid ESUs, and to strengthen other programs so that they 
contribute to the conservation of listed salmonids. This final rule may 
be amended to add new limits on the take prohibitions, or to amend or 
delete adopted take limits as circumstances warrant.
    The following section entitled ``Notice of Availability'' lists 
four documents referred to in the proposed rule and this final 
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 to NMFS for 
coverage under one of the take limits in the final rule. The documents 
represent guidance, and are not 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 hatchery management take limits, provides a framework 
for identifying populations and their status as a component of 
developing adequate harvest or hatchery management plans. The final 
rule indicates that Fishery Management and Evaluation Plans (FMEPs) and 
Hatchery and Genetic Management Plans (HGMPs) should utilize the 
concepts of `viable' and `critical' salmonid population thresholds, 
consistent with the concepts contained in NMFS's VSP report. 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 designee, to address site specific considerations and 
conditions. Finally, research involving electrofishing comes within the 
scientific research limit 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 seek coverage under the road maintenance limit in 
this final rule if they use the ODOT program or submit a program that 
utilizes other practices found by NMFS to meet or exceed the ODOT 
standards for the protection of threatened salmonids.
    Where this rule cites a guidance 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 requesting that NMFS concur that a program meets 
the criteria of a particular limit has the latitude to show that its 
variant or approach is, in the circumstances where it will apply and 
affect listed fish, equivalent or better.
    NMFS will continue to review the applicability and technical 
content of its own documents as they are used in the future and make 
revisions, corrections, or additions as needed. NMFS will use the 
mechanisms of this final rule to take comment on revisions of any of 
the referenced state programs. If any of these documents are revised in 
the future 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 final 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).
    The limits on the take prohibitions in this final 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 rule or any other listed species. To 
the extent that actions subject to section 7

[[Page 1119]]

consultation are consistent with a circumstance for which NMFS has 
limited the take prohibitions, a letter of concurrence from NMFS will 
greatly simplify the consultation process, provided the program is 
still consistent with the terms of the limit.

Applicability of Final Rule to Specific ESUs

    In the regulatory language in this final rule, the limits on the 
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 in 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 final 
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

Summary of Comments in Response to the Proposed Rule

    The public comment period for the proposed rule was open from 
August 17, 2001, through October 1, 2001. During the comment period, 
NMFS held three public hearings (Chico, CA on 9/13/01; Eureka, CA on 9/
18/01; and Ukiah, CA on 9/19/01) to solicit public comments. A limited 
number of individuals provided oral testimony at the three public 
hearings. During the comment period, NMFS received 8 written comments 
on the proposed rule from various agencies, non-governmental 
organizations, and individuals. A summary of the comments and NMFS' 
responses to those comments are presented here by specific issue.

Comments and Responses

Tribal Coordination

    Comment 1: The Bureau of Indian Affairs (BIA) reminded NMFS of its 
obligation to consult with potentially affected Indian tribes that 
might be affected by this ESA 4(d) rule pursuant to Executive Order 
13175 (Consultation and coordination with Indian tribal governments). 
In addition, BIA provided NMFS with a list of recognized Indian tribes 
that occur within the range of the threatened ESUs covered by this 
final rule.
    Response: In response to the BIA's guidance, NMFS notified all of 
the potentially affected Indian tribes of the proposed ESA 4(d) rule 
and the U.S. District Court Order to finalize the rule by December 31, 
2001. NMFS offered to meet with any tribe to explain the rule, discuss 
its potential impact on the tribe, and to explain its relationship to 
the Tribal ESA 4(d) rule which NMFS published on July 10, 2000 (65 FR 
42481). NMFS has consulted in the past with many of these tribes on 
previous ESA 4(d) rules, as well as the Tribal ESA 4(d) rule, and will 
consult with any and all tribes as they request us to do so.
    Comment 2: BIA requested clarification as to whether or not the 
Tribal ESA 4(d) rule (65 FR 42481, July 10, 2000) applied to the four 
ESUs covered in this ESA 4(d) rule.
    Response: The Tribal ESA 4(d) rule (65 FR 42481) NMFS published on 
July 10, 2000, is actually a broadly defined limitation on the ESA 
section 9(a)(1) take prohibitions for recognized Indian tribes that 
applies to all threatened salmon and steelhead ESUs including the four 
covered by this final ESA 4(d) rule and any threatened salmonid ESUs 
that may be listed in the future. Under this Tribal ESA 4(d) rule, a 
section 9(a)(1) take limitation was created for resource management 
plans (e.g., harvest, habitat restoration, research and monitoring, 
etc.) developed by Tribes where NMFS has determined that implementation 
of the plan will not appreciably reduce the likelihood of survival and 
recovery for the listed ESU(s) that are affected by the plan. This 
Tribal ESA 4(d) rule was intended to harmonize NMFS' statutory 
conservation efforts under the ESA with tribal rights and the Federal 
Trust responsibility to tribes.
    Comment 3: BIA advised NMFS that Tribal governments may incur 
direct compliance costs if they choose to pursue coverage under the 
Tribal ESA 4(d) rule or this final rule.
    Response: NMFS does not anticipate that Indian Tribes will pursue 
coverage under the take limits in this final ESA 4(d) rule. Although 
Tribes are certainly eligible to pursue coverage under the limitations 
in this final rule, the purpose of the Tribal ESA 4(d) rule was to 
provide recognized tribes with a broad take limitation that could cover 
any type of resource management plan including those that might be 
developed pursuant to this final ESA 4(d) rule (e.g., routine road 
maintenance, fish harvest, habitat restoration, etc.). For this reason, 
NMFS would strongly recommend to Tribes that they utilize the Tribal 
ESA 4(d) rule instead of this final rule to obtain coverage for their 
activities if they choose to do so. Not only is the Tribal ESA 4(d) 
rule sufficiently flexible that it can accommodate the full range of 
tribal resource management plans, but it provides for a broad and open 
government-to-government consultation process in developing and 
evaluating such plans. NMFS recognizes that Tribes may incur direct 
compliance costs in the development of tribal resource management 
plans. NMFS is prepared to work closely with interested tribes to 
develop resource management plans for consideration under the Tribal 
ESA 4(d) rule that will minimize costs and will also provide technical 
expertise and other support wherever it can pursuant to the 1997 
Secretarial Order (June 5, 1997).

Take Guidance

    Comment 4: One commenter stated the proposed ESA 4(d) rule does not 
adequately state why a take prohibition is necessary for these 
threatened ESUs, nor does it establish a basis for the conclusion that 
specified activities are likely to result in a take.
    Response: NMFS believes that the listing determinations for each of 
the ESUs covered by this final rule, as well as all other west coast 
salmonid listing determinations, have documented the historic and 
current factors responsible for their decline to the point where ESA 
protection was necessary. Factors responsible for the decline of these 
ESUs include loss and degradation of freshwater habitat from a wide 
range of habitat modifying activities, harvest of fish in recreational 
and in some cases commercial fisheries, predation, and natural 
fluctuations in the environment (e.g., ocean conditions, rainfall, 
drought, etc.). NMFS believes that historic and ongoing take of fish in 
these ESUs as a result of these factors has contributed significantly 
to their decline. For this reason, NMFS has concluded that it is 
necessary and advisable to prohibit and closely regulate the allowable 
take of these species. Failure to prohibit and regulate take by this 
final rule would result in continued decline of listed salmonids.
    It is NMFS' policy to increase public awareness of, and to identify 
which activities we believe are likely or not likely to, injure or kill 
a listed species. The take guidance in the proposed rule and in this 
final rule are intended to do that. It is only possible based on direct 
experience with managing populations in their natural environment and 
from scientific literature to describe the types of activities that may 
have adverse impacts (i.e., result in take) on fish and their habitat 
and describe their consequences (e.g., blocking fish from reaching 
spawning grounds, dewatering incubating redds, etc.). NMFS understands 
that there is considerable

[[Page 1120]]

interest by many entities in knowing as much as possible about what 
constitutes take of a listed species and the take guidance in this 
final rule attempts to provide that information. However, determining 
whether an individual local program or activity will or is likely to 
injure or kill a listed fish requires an accurate and credible 
assessment that takes into account local factors and conditions.
    Comment 5: One commenter stated that NMFS' take guidance in the 
proposed rule identifies activities that ``are very likely'' or ``may'' 
injure or kill listed species, instead of stating only activities 
resulting in ``actual death or injury.''
    Response: NMFS provided broad take ``guidance'' for the purpose of 
helping individuals understand what actions could possibly lead to 
take. By offering guidance on what type of activities may cause take, 
individuals can better avoid any illegal behavior that could result in 
an actual death or injury.
    Comment 6: One commenter stated that the proposed ESA 4(d) rule is 
more restrictive than the ESA section 9 take prohibitions.
    Response: NMFS disagrees. The proposed and final ESA 4(d) rule do 
impose the section 9(a)(1) take prohibitions in the ESA, but 
simultaneously it puts into place limitations on those take 
prohibitions for certain categories of activities under specified 
conditions. In effect, whenever NMFS finds that an activity falls 
within a take limit in the final rule, the section 9 take prohibitions 
do not apply to that activity. In this way, this rule is more flexible 
and potentially less restrictive than an alternative ESA 4(d) rule that 
would simply put into place the section 9 take prohibitions without 
limitation. In this latter case where only the take prohibitions are in 
effect, the only way to comply with the ESA is to either avoid taking 
entirely or to have take authorized through ESA sections 7 or 10.
    Comment 7: One commenter requested clarification that the rule does 
not prohibit take associated with an activity when it is conducted 
pursuant to an approved Federal permit.
    Response: If a Federal permit was subject to a previous section 7 
consultation for which an incidental take permit was issued, then take 
associated with the project will have been previously authorized. 
However, if a Federal permit was issued without section 7 consultation 
or without an incidental take statement for the ESUs in this final 
rule, then the permitted activity would not have take authorization for 
these ESUs and might violate the ESA section 9 take prohibitions. Under 
this circumstance, ESA section 7 consultation should be initiated or 
reinitiated with NMFS so that incidental take can be properly 
authorized.
    Comment 8: Several commenters suggested or requested that NMFS 
create take limitations for other programs such as the Natural 
Resources Conservation Service's Field Office Technical Guidance and 
some or all elements of the CALFED program in California's Central 
Valley.
    Response: NMFS believes that the ESA 4(d) rule process provides 
another opportunity in addition to ESA sections 7 and 10, for state and 
other jurisdictions to assume leadership for threatened salmonid 
conservation at the state and local level in addition to the 
conventional tools that are available through sections 7 and 10 of the 
ESA. NMFS is prepared to collaborate with Federal, state, tribal, and 
local entities to develop and evaluate programs that will take 
advantage of the ESA 4(d) option for achieving salmonid conservation 
and compliance with section 9 take prohibitions of the ESA. NMFS is 
especially interested in state-level conservation programs because such 
programs can more efficiently and comprehensively provide for 
conservation of threatened salmonids. However, incorporation of any 
additional take limitations into this or future ESA 4(d) rules will 
need to go through the rulemaking process.
    Federal programs, including many programs and activities being 
carried out as part of the CALFED implementation program, are subject 
to ESA section 7 consultation if they may affect listed species. This 
ESA 4(d) rule does not and cannot relieve Federal agencies of their ESA 
section 7 consultation obligations under the ESA and, therefore, 
authorization of incidental take for Federally permitted, conducted, or 
funded programs must occur through the section 7 process.

Legal Issues/Section 7/National Environmental Policy Act (NEPA)/
Regulatory Flexibility Analysis/Regulatory Impact Review

    Comment 9: The Department of the Interior commented that the ESA 
4(d) rule may affect terrestrial and other species under the 
jurisdiction of the U.S. Fish and Wildlife Service (FWS) and that NMFS 
should, therefore, consult with FWS pursuant to section 7 of the ESA.
    Response: NMFS recognizes that promulgation of this ESA 4(d) rule 
is a Federal action requiring consultation under section 7 of the ESA. 
NMFS must ensure through the ESA section 7 process that the 4(d) rule 
does not jeopardize the continued existence of listed species or result 
in the destruction or adverse modification of their critical habitat. 
NMFS has completed the required ESA section 7 consultation with itself 
concerning the effects of this 4(d) rule on listed species under NMFS' 
jurisdiction and concluded that the rule is not likely to adversely 
affect these listed species or adversely modify their critical habitat.
    NMFS also consulted with FWS concerning the effects of promulgating 
this ESA 4(d) rule on listed species under FWS' jurisdiction (FWS' 
listed species) and their critical habitat. FWS concurred with NMFS 
that the imposition of ESA section 9(a)(1) take prohibitions for the 
ESUs addressed by this rule was not likely to adversely affect FWS' 
listed species or their critical habitat. However, both agencies 
recognized that plans, programs, or activities developed for future 
approval by NMFS pursuant to the take limits in this final rule have 
the potential to affect FWS' listed species or their critical habitat 
depending on their geographic location and the details of the plan, 
program or activity. Through the consultation process NMFS has 
committed to work closely with FWS during development of such plans, 
programs or activities to determine if and how they may affect FWS' 
listed species or their critical habitat. As part of this early 
coordination process, NMFS has committed to work with FWS and any 
applicant seeking a take limit approval under this final rule to ensure 
that any plan, program, or activity that is developed either avoids 
impacts to, or does not adversely affect any of FWS' listed species or 
their critical habitat. Finally, if a plan, program or activity cannot 
be developed that will not adversely affect or not avoid impacts to 
FWS' listed species or their critical habitat NMFS will continue to 
work with FWS to ensure appropriate compliance with the ESA for FWS' 
listed species or critical habitat. On the basis of these 
determinations and commitments, FWS concluded that promulgation of this 
rule is not likely to adversely affect species under FWS' jurisdiction.
    Comment 10: Some commenters asked NMFS to clarify the extent which 
NEPA applies to the ESA 4(d) rule.
    Response: NEPA applies to this and other ESA 4(d) rules, and as 
this final rule states, NMFS completed Environmental Assessments (EAs) 
for this regulatory action. Those documents were made available during 
the comment period and continue to be

[[Page 1121]]

available via NMFS' Southwest Region website (http://swr.nmfs.noaa.gov).
    Comment 11: One commenter suggested that the EAs prepared by NMFS 
were inadequate and failed to examine a full range of alternatives, 
particularly with regard to some of the take limitations contained in 
the proposed rule.
    Response: NMFS believes that the range of alternatives examined in 
the EAs is appropriate and that no additional alternatives need to be 
considered.
    NMFS believes that the EAs that were prepared for this final rule 
are adequate to support the regulatory action of imposing the section 
9(a)(1) take prohibitions on the CCV spring-run chinook, CCC chinook, 
and NC steelhead ESUs. However, NMFS has determined that additional 
NEPA analysis is necessary to support any future agency approvals under 
the 10 take limitations contained in the rule. NMFS intends to conduct 
additional, programmatic NEPA analysis that specifically addresses the 
environmental impacts of approving activities under each of the take 
limitations (e.g., water diversion screening, etc.) contained in this 
final rule. This is consistent with the approach NMFS is now taking for 
the ESA 4(d) rule it published in July 2000 which covered 14 threatened 
salmon and steelhead ESUs. Until programmatic NEPA analyses are 
completed for each of the take limitations in this final rule as 
described above, NMFS will prepare separate NEPA analysis for any plan 
or activity for which the agency is requested to make an approval under 
any of the rule's take limitations. For example, until a programmatic 
NEPA document is completed which specifically addresses recreational 
angling under the Fishery Management and Evaluation Plan (FMEP) take 
limitation in this final rule, NMFS will not approve any FMEPs until 
approval of that plan has been addressed in a plan specific NEPA 
document.
    Comment 12: Two commenters argued that according to the holding in 
Alsea Valley Alliance v. Evans, 99-6265-HO (D. Oreg., September 12, 
2001), the four threatened salmonid ESUs covered by this ESA 4(d) rule 
have been improperly listed under the ESA, and hence, NMFS has no 
statutory authority to issue an ESA 4(d) rule pertaining to them.
    Response: NMFS disagrees. Unless a listing decision is invalidated 
by a court, or superceded by another formal rule making, an ESU remains 
listed and, thus, properly subject to ESA 4(d) rule protection. None of 
the four ESUs covered by this final rule were de-listed as a result of 
the Alsea case and, thus, NMFS has an obligation to promulgate ESA 4(d) 
rules that it believes are necessary and advisable for their 
conservation.
    Comment 13: The National Association of Home Builders (NAHB) 
commented that it opposes the proposed ESA 4(d) rule on many of the 
same grounds that are currently being litigated by NAHB against NMFS in 
Kittitas County v. Evans with regard to the July 10, 2000 ESA 4(d) 
rule, particularly the MRCI limit.
    Response: NMFS will not address arguments and objections that are 
raised generally by reference to a pending case, such as Kittitas 
County. Rather, NMFS will respond to specific comments made in this 
rulemaking.
    Comment 14: NAHB commented that with this ESA 4(d) rule NMFS is 
interpreting the ESA in a way that alters the federal-state framework 
by permitting Federal encroachment upon a traditional state power such 
as the states' traditional and primary power over land and water use. 
NAHB also asserted that NMFS had failed to demonstrate what it is 
necessary and advisable to place the additional burden on local 
governments of creating and submitting to NMFS for approval, ordinances 
that actively conserve these threatened salmonid ESUs
    Response: NMFS disagrees that the ESA 4(d) rule alters the federal-
state framework by encroaching on land and water use regulation by 
state/local governments. NMFS also disagrees that the rule places any 
additional burdens on state and local governments. To the extent that 
state or local regulation or permitting of land use or water use may 
result in the take of these threatened salmonids, the Municipal 
Residential Commercial and Industrial (MRCI) and other take limitations 
contained in this rule provide a mechanism for the state/local entity 
to relieve itself of the take prohibitions. Also, development and 
submittal of a plan to NMFS for consideration under any of the take 
limitations in the ESA 4(d) rule is completely voluntary. Should 
individuals, local governments or the state instead wish to obtain a 
take exception for threatened species subject to the section 9 
prohibitions, they may submit a Habitat Conservation Plan to NMFS under 
section 10 of the ESA.
    Comment 15: NAHB commented that NMFS did not demonstrate why it is 
necessary and advisable to require that each ordinance be approved by 
NMFS and placed in the Federal Register and be subjected to 30 days of 
public notice and comment in order to obtain coverage for the MRCI take 
limitation.
    Response: In order for NMFS to determine whether a particular 
ordinance or plan may be sufficiently protective of threatened species, 
it must be submitted to NMFS for review and consideration. Prior to 
making any such determination, NMFS believes that it is important to 
obtain public and/or agency comments on both the ordinance or plan and 
our pending determination. For this reason, this final rule calls for 
publishing a notification in the Federal Register announcing the 
availability of the ordinance or plan for review and comment.
    Comment 16: NAHB commented that NMFS cannot hold local governments 
liable for take under the ESA.
    Response: The take limitations in the rule are permissive and not 
mandatory. Any vicarious liability determination would arise from 
application of the take prohibitions to the local government, depend 
upon the specifics of the regulations and the regulated activity, and 
so would depend upon the circumstances of each case.
    Comment 17: NAHB asserted that the proposed ESA 4(d) rule raises 
10th Amendment concerns by creating a state duty to administer the 
Federal law of ``take'' against third parties.
    Response: The take limitations in this final rule are permissive, 
not mandatory (i.e., they impose no requirements on state and local 
governments). The only prohibition in this final rule is against take 
of the threatened species covered by this final rule. This final rule 
does not impose any affirmative duty upon the state to administer the 
ESA.

Viable Salmon Population (VSP) Framework

    Comment 18: One commenter said that references to ``historic 
abundance levels'' and ``habitat capacity of the population'' in the 
discussion in the proposed rule about how NMFS would assess population 
status as part of its VSP framework are ambiguous and unclear.
    Response: Historic conditions are meant to serve as one possible 
reference point in evaluating population status because under historic 
conditions populations were assumed to have been viable. The time 
frame, therefore, refers to a period in time where the population or 
ESU was considered self sustaining and may represent different time 
frames for different species or populations. Although historical data, 
if it is available, may be a useful tool in this assessment, it does 
not mean that NMFS will require or assume that every population must be 
at a historic

[[Page 1122]]

abundance level in order to be viable. Where historic data are not 
available or are of uncertain accuracy, the assessment of viable 
population levels could be based upon an evaluation of the habitat 
capacity or carrying capacity of the habitat available to a population.

Take Limitations - General Comments

    Comment 19: Several commenters stated that each of the take 
limitations should have provisions for monitoring and oversight where 
NMFS is approving plans or ordinances (e.g., FMEPs, routine road 
maintenance, water diversion screening, etc.).
    Response: NMFS agrees that programs that are approved under the 
take limits in this rule are incomplete if there is no mechanism to 
track their effectiveness and implementation. NMFS believes that this 
final rule provides for a sufficient level of monitoring and oversight 
of activities that may qualify for coverage under the 10 take 
limitations. Several of the take limits (e.g., recreational fishing, 
hatchery and genetic management, routine road maintenance, MRCI) in 
this final rule specifically require that monitoring be incorporated 
into programs or plans in order to qualify for coverage under the 
limitation. In addition, the final rule indicates that NMFS will 
evaluate on a regular basis the effectiveness of all programs that are 
approved under the take limits to insure that they are achieving the 
level of protection that is consistent with the conservation of the 
threatened ESUs covered in the rule. If a program or plan does not meet 
the required objectives, NMFS will work with the relevant entity to 
make adjustments to the program accordingly. If the relevant entity 
chooses not to adjust the program to meet the necessary objectives for 
coverage under the take limit, then NMFS will publish notification in 
the Federal Register that the program is no longer exempt from the ESA 
section 9(a)(1) take prohibitions because it does not sufficiently 
conserve the threatened ESUs.
    Comment 20: One commenter was concerned that activities falling 
under any one of the 10 take limitation categories in the proposed rule 
were automatically exempt from the take prohibitions and would not be 
monitored by NMFS.
    Response: Virtually all of the take limitations in this final rule 
require that entities seeking a limitation submit a plan to NMFS which 
addresses a wide range of detailed criteria specified in the rule. 
These include habitat modifying activities such as routine road 
maintenance, MRCI development, and water diversion screening. Only 
after NMFS has reviewed these plans against the specified criteria in 
the rule and responded to public comments on the plans, will NMFS make 
a determination as to whether or not the plan qualifies for coverage 
under a limit. As discussed in the preceding response to comment, NMFS 
believes this final rule requires sufficient monitoring of activities 
covered under the take limits, and ample opportunity for NMFS to 
provide oversight of activities covered under the take limits.

MRCI Take Limitation

    Comment 21: One commenter expressed concerns that the MRCI take 
limitation does not explicitly require entities seeking coverage to 
address cumulative impacts or mitigation and recommended the final rule 
include such a requirement.
    Response: NMFS recognizes the importance of assessing cumulative 
impacts for MRCI development and other types of activities covered by 
the take limitations in this final rule. For some take limitations such 
as recreational angling (i.e. the FMEP take limit), NMFS has explicitly 
incorporated consideration of cumulative impacts into the rule where it 
is feasible. For habitat modifying activities, however, this is 
difficult. NMFS believes, however, that cumulative impacts are 
addressed at least in part for habitat modifying activities, such as 
MRCI development and routine road maintenance, since coverage of such 
an activity under the rule requires NMFS to find that it is 
contributing to the attainment of, or is contributing to the 
maintenance of, properly functioning habitat conditions for the 
threatened ESUs covered in the rule.
    Comment 22: One commenter stated that the description of the 
evaluation criteria relating to riparian management areas in MRCI plans 
should indicate that such areas are often larger than one site-
potential tree height and that it should also specify the types of 
riparian functions that should be protected in such plans.
    Response: NMFS recognizes that riparian areas are important to 
threatened salmonids and, therefore, provided guidance in this final 
rule that MRCI plans should provide sufficient riparian management 
requirements or measures within a distance of one site-potential tree 
height from the stream channel. This general guidance was based on the 
best available scientific information which indicates that this stream 
side area is the one in which development activities most affect 
riparian zone habitat functions. Although this is a good rule of thumb, 
NMFS recognizes, as stated in the guidance for riparian zone 
management, that this distance can vary substantially from location to 
location and should be determined on a site-specific basis taking into 
account the conditions of the site or area and the type of habitat that 
may be affected by the MRCI development.
    Comment 23: One commenter indicated that it was unclear whether a 
plan must be submitted to NMFS when an entity requests coverage under 
the MRCI take limit, and that it was also unclear who is responsible 
for approving such a plan if warranted.
    Response: NMFS does expect interested jurisdictions to submit a 
plan to NMFS which describes the MRCI activities to be covered and 
which addresses the twelve evaluation criteria contained in the take 
limit. As indicated in this final rule, the Southwest Regional 
Administrator is responsible for determining whether a MRCI plan 
qualifies for coverage under this take limit.
    Comment 24: The MRCI limit is subjective, violates the ESA, and is 
arbitrary and void for vagueness.
    Response: The MRCI limitation was intended to be more broadly 
flexible than most of the other take limitations in order to address 
and provide coverage to the wide variety of circumstances that may 
arise under this category of activities. As noted elsewhere in this 
final rule, tailoring activities to comply with the take limitations 
and submittal of any plan to NMFS for consideration under any of the 
take limits, including the MRCI limit, is strictly voluntary. The MRCI 
limit has 12 specific land use considerations relevant to preserving 
fish habitat that NMFS will use to evaluate submitted land use 
regulations. NMFS' use of these considerations to make its consistent 
with conservation and attaining and maintaining properly functioning 
condition determinations gives adequate clarity and certainty to this 
part of this regulation.
    Comment 25: One commenter felt that NMFS should provide performance 
standards that ordinances should meet and that the twelve evaluation 
criteria contained in the MRCI take limit were too vague.
    Response: As discussed in this final rule, the fundamental 
performance standard against which ordinances or plans will be 
evaluated under this take limit is whether they contribute to 
maintaining and/or restoring properly functioning habitat conditions 
that will conserve the threatened ESUs. Under this limit, NMFS will 
evaluate

[[Page 1123]]

ordinances or plans to determine if and how they affect conditions on 
the landscape and the extent to which they are contributing to the 
maintenance of or restoration of essential habitat functions. If such 
plans would maintain or contribute to restoring these functions, then 
they may qualify under the take limitation.
    The 12 considerations contained in this final rule identify the 
specific issues and/or factors NMFS will use as a framework for 
evaluating ordinances or plans. These considerations are based on 
current scientific understanding of salmonid biological requirements. 
By assessing these twelve considerations, NMFS believes it can evaluate 
the extent to which an ordinance or plan contributes to maintaining or 
restoring properly functioning habitat conditions that will conserve 
the threatened ESUs. Depending on the scope of the ordinance or plan, 
all twelve of these considerations may not be relevant. NMFS recognizes 
this fact and will base its evaluation on only those considerations 
that are relevant.

Recreational Fisheries Take Limitation

    Comment 26: One commenter suggested that the final rule should 
provide a mechanism allowing FMEPs to be ``tiered'' off of Pacific 
Fishery Management Council (PFMC) approved Fishery Management Plans in 
order to avoid redundancy and duplication.
    Response: The FMEP take limitation in this final rule is intended 
to provide a more efficient mechanism for insuring that freshwater 
recreational fisheries managed by the State of California adequately 
protect and contribute to the conservation of the threatened ESUs 
covered by the rule while still providing for angling opportunities. 
Coverage of State managed fisheries in this manner will provide 
assurance to the State and anglers that they are in compliance with the 
ESA. Such fisheries are under the jurisdiction of the State and are not 
managed by PFMC. Since the PFMC manages marine fisheries covered by 
Federal Fishery Management Plans it is unclear how the FMEP process in 
this final rule can be tiered off of the FMP process that is 
implemented by the PFMC. Because the two processes manage two separate 
fisheries, NMFS does not believe that there will be unnecessary 
duplication or redundancy in the development of FMEPs. To the extent 
feasible, however, NMFS will encourage the State to utilize information 
gathered as part of the FMP process in the development of FMEPs that 
are submitted for coverage under this rule.

Water Diversion Screening Take Limitation

    Comment 27: One commenter argued that the water diversion screening 
take limitation is inappropriate and does not meet the requirements of 
the ESA.
    Response: NMFS believes strongly that the water diversion screening 
take limit is appropriate, that it provides for the conservation of the 
threatened ESUs covered by the rule, and that it is consistent with the 
ESA. As the commenter pointed out, NMFS is well aware that the 
entrainment of juvenile salmonids in unscreened or poorly screened 
water diversions is a problem, both in the central valley and in 
coastal watersheds. The water diversion screening limit in this rule is 
intended to provide an incentive for screening unscreened or poorly 
screened diversions. This final rule and this take limit do not allow 
unregulated take of listed salmonids at water diversions in the central 
valley or in coastal watersheds. In fact, this final rule imposes the 
ESA section 9(a)(1) take prohibitions on these three threatened ESUs 
making it illegal to entrain these fish into water diversions, and only 
relieves diverters of the take prohibitions if they qualify by meeting 
the criteria in the water diversion screening take limit or by 
obtaining take authorization through the processes of ESA section 7 or 
10. NMFS will only provide coverage to water diverters under the water 
screening diversion take limit if they meet the criteria specified in 
the rule. These criteria call for: (1) NMFS to certify that a diversion 
is screened, maintained, and operated in compliance with NMFS' fish 
screening criteria; and (2) the owner/operator of the facility to allow 
NMFS to inspect the facility to insure compliance with the criteria. 
NMFS believes these screening criteria are fully protective of juvenile 
salmonids and presently uses them as the basis for evaluating water 
screening diversion projects under ESA sections 7 and 10 of the ESA.
    Comment 28: One commenter was concerned that this final rule and 
this take limitation in particular would exempt all take of these 
threatened ESUs at the Federal and state water pumping facilities that 
operate in the central valley, provided they are operated in compliance 
with whatever screening criteria are in place.
    Response: As discussed elsewhere, this final rule will impose the 
ESA section 9(a)(1) take prohibitions on three threatened ESUs, 
including the CCV spring-run chinook ESU. The water diversion screening 
take limit is primarily built into the rule to provide an incentive to 
smaller, non-Federal water diverters to screen their diversions with 
appropriate screens. In contrast, the Federal and state pumps and the 
associated fish protection facilities are part of the Federal and state 
water projects which are operated in a coordinated fashion by the 
Bureau of Reclamation and the Department of Water Resources. The 
combined operation of the Federal and state water projects, including 
the Federal and state pumps and the associated fish protection 
facilities, constitute a Federal project activity which is subject to 
section 7 of the ESA. This final rule does not relieve Federal agencies 
such as the Bureau of Reclamation of their obligation to consult under 
the ESA, nor does it exempt the take of these threatened species by 
Federal agencies. For this reason, the incidental take of CCV spring-
run chinook at the Federal and state pumps and the associated fish 
protection facilities are authorized through section 7 of the ESA, not 
this final ESA 4(d) rule. Future modifications of the fish protection 
facilities in the Delta will comport to the extent appropriate with 
NMFS' fish screening criteria and the mechanism for any required ESA 
compliance will be section 7 of ESA through the Bureau of Reclamation.
    Comment 29: One commenter asserted that NMFS' screening criteria 
are not well supported or justified scientifically.
    Response: NMFS disagrees. NMFS' fish screening criteria are 
extensively detailed and have undergone a high degree of scientific 
scrutiny. They are based on decades of operational experience that have 
yielded some of the best screen designs for salmonid protection in 
existence. Several States, including California, have adopted NMFS' 
screening criteria and use them extensively. Lastly, extensive 
biological evaluations have demonstrated little or no injury to fish 
when testing screen facilities constructed to NMFS' criteria.
    Comment 30: One commenter suggested that this take limit should 
also ``grandfather'' in older fish screen and passage facilities 
provided they met the standards that were in existence at the time they 
were installed.
    Response: The intent of this take limitation is to allow a water 
diversion to be made as safe as possible for the threatened ESUs 
covered by the rule. Therefore, we believe that the best available 
information regarding fish screen criteria that are protective of 
salmonids should be used as the basis for providing coverage to water 
diversions under this limit. In our view, the 1997 criteria constitute 
the best

[[Page 1124]]

available information. As new biological information becomes available, 
however, it may be necessary to update these criteria and all new 
facilities from that point forward would need to comply with any 
updated criteria. NMFS recognizes that it may not be necessary to 
retrofit all existing screen facilities with new features every time 
that new information becomes available and that some older facilities 
may still function in a manner that is protective of threatened 
salmonids. In such cases, NMFS may consider certification of screen 
designs that meet the criteria in place at the time of construction 
providing there is no evidence to show that the device is causing the 
take of listed salmonids.

Habitat Restoration Take Limitation

    Comment 31: One commenter argued that NMFS should not insert itself 
in the process of approving watershed conservation plan guidelines. 
This commenter also contended that NMFS does not have the authority to 
require states or local governments to consult with the agency in the 
development of such plans.
    Response: The goal of this take limitation is to provide a 
mechanism for exempting habitat restoration projects from the ESA 
section 9 take prohibitions when those projects have been identified as 
being necessary to restore watershed function as a result of watershed 
scale assessments. In order for NMFS to provide this type of blanket 
coverage for habitat restoration projects and to avoid having to review 
all watershed conservation plans and habitat restoration projects 
separately, we believe it is appropriate for NMFS to link this 
exemption to an approval of watershed conservation plan guidelines. 
Absent the process described by this take limitation, the only means 
available for NMFS to authorize take that may occur as a result of 
habitat restoration projects is to review and approve them individually 
through ESA section 7 or section 10 processes. The process described in 
this take limit, if implemented by the state, can serve to expedite 
implementation of habitat restoration projects while at the same time 
promote watershed assessments and the development of watershed 
conservation plans on the basis of standard guidance. As clearly stated 
in the proposed and final rule, state and local entities are not 
required to use any of the take limitations, including the limitation 
for habitat restoration. In other words, NMFS is not requiring the 
state and local entities to develop guidelines or watershed 
conservation plans. We have made this option available as part of a 
process for facilitating the implementation of habitat restoration 
projects through exemption from the section 9 take prohibitions. As an 
alternative to using this take limitation, state or local entities may 
choose to utilize the section 7 or section 10 processes to obtain take 
authorization for habitat restoration projects they plan to implement.

Take Guidance

    The threatened salmonid ESUs addressed in this final rule are in 
danger of becoming extinct throughout all or a significant portion of 
their range in the foreseeable future. Abundance of these ESUs has been 
reduced by over-fishing, past and ongoing freshwater and estuarine 
habitat destruction, hydropower development, hatchery practices, and 
other causes. NMFS has concluded, therefore, that it is necessary and 
advisable to apply the ESA section 9(a)(1) prohibitions to these ESUS 
to aid in their conservation. ESA 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 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 listed species.
    Based on the best available information, NMFS believes the 
categories of activities that follow are those activities which as a 
general rule may be most likely to result in injury or harm to listed 
salmonids. It is important to emphasize, however, that whether injury 
or harm results from a particular activity is entirely dependent upon 
the facts and circumstances of each individual case. The mere fact that 
an activity may fall within one of these categories does not mean that 
the specific activity is causing harm or injury. These categories of 
activity, however, are ones that may be most likely to cause harm and, 
thus, violate the ESA section 9(a)(1) take prohibitions in this final 
rule. The activities listed below in A thru J 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.
    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.
    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

[[Page 1125]]

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) that 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 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 activities that may violate the ESA 
and to encourage efforts to protect and conserve the threatened ESUs 
covered in this final rule. A determination as to 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 the impacts of such 
pesticides 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 ESA 
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) one of the limits (if available) on the take prohibitions 
provided in this final 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 final 
rule.
    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 final rule. 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 final rule provided the activities are 
conducted in accord with all reasonable and prudent measures and terms 
and conditions contained in any biological opinion and incidental take 
statement issued by NMFS.

References

    A list of references cited in this final rule is available upon 
request (see ADDRESSES).

Classification

Regulatory Flexibility Act

    In accordance with the requirements of the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601-612), therefore, NMFS prepared an IRFA which 
was made available through the proposed ESA 4(d) rule for public 
comment. Although no comments were received on the IRFA during the 
public comment period, NMFS has made some revisions to the Final 
Regulatory Flexibility Analysis (FRFA) by defining further geographic 
subareas to insure its consistency with the Final Regulatory Impact 
Review (RIR). The FRFA is available upon request (see ADDRESSES) and a 
summary follows.
    This ESA 4(d) rule has no specific requirements for regulatory 
compliance. Instead, the rule sets an enforceable performance standard 
in the form of the section 9(a)(1) take prohibitions (i.e., do not 
``take'' the threatened ESUs) that applies to all entities and 
individuals unless an activity is within a carefully circumscribed set 
of activities for which NMFS will not impose the take prohibitions. 
Hence, the universe of entities reasonably expected to be directly or 
indirectly impacted by the prohibition is potentially broad.
    The entities potentially affected by imposition of the ESA section 
9 take prohibitions occur over a large geographic area which includes 
the Sacramento River basin in California's central valley, as well as 
coastal watersheds ranging from the Russian River to Redwood Creek. 
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 ESA 4(d) rule 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, most of the activities that 
would be subject to the take prohibitions in the rule are already 
subject to the take prohibitions

[[Page 1126]]

imposed by existing ESA 4(d) rules that protect other salmonid ESUs 
utilizing the same habitat. Thus, determining the incremental cost of 
this rule requires information concerning regulated entities' response 
to pre-existing ESA 4(d) rules, some of which have been in effect for 
only a little over a year.
    In the absence of 4(d) rules, entities could comply with the ESA 
through section 10 research, enhancement, and incidental take permits 
with private entities, or through ESA 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 ESA 
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
                                                           of Plans  of Plans   Number       Number of Plans
                          Limit                            Received   Pending  of Plans   Expected in Next Year
                                                            to Date  Approval  Approved
----------------------------------------------------------------------------------------------------------------
Research                                                          3         0         3         4 yearly (Oregon
                                                                                               Washington Idaho,
                                                                                                     California)
Fishery Management Plans                                         13        12         1                       33
Hatchery Genetic Management Plans                                 9         9         0                       61
Joint State/Tribal Plans                                          2         0         2                       12
Habitat Restoration Activities                                    0         0         0                        4
Diversion Screening                                              20         2         0                      100
Oregon Department of Transportation's (ODOT's) Routine            0         0         0                     7-10
 Road Maintenance or Equivalent Plan
Municipal, Residential, Commercial, and Industrial Plans          0         0         0                       10
----------------------------------------------------------------------------------------------------------------

    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 compliance via the July 4(d) rule limits; (2) those who are not 
sure if their activities will harm salmonids, but are seeking guidance 
from NMFS; (3) those who are actively seeking ESA compliance via the 
section 10 or section 7 process; and (4) those entities that are taking 
salmon but are not seeking ESA compliance.
    Examination of the geographical aspects of overlapping ESUs, and 
consideration of differences in the distribution of the different ESUs 
within river systems revealed five subareas composing the geographic 
extent of the four ESUs combined. Subarea 1 consists of that area where 
this rule's take prohibition for Central Valley spring chinook would be 
superimposed on existing take prohibitions for threatened Central 
Valley steelhead and endangered winter-run chinook salmon. In this 
region only a small variety of activities involving deliberate take of 
spring-run chinook is expected to be affected.
    Subarea 2 consists of that area where Central California coast coho 
will be subject to limitations on the take prohibition not presently 
allowed by the existing ESA 4(d) rule for that threatened ESU and no 
new take prohibition is being added. The impact of this rule in this 
subarea is the increased flexibility allowed by the 10 take prohibition 
limits.
    Subarea 3 consists of that area where this rule superimposes the 
take prohibitions for Northern California steelhead and California 
coastal chinook on the existing take prohibition for Central California 
coast coho. Deliberate take of the steelhead and chinook will be newly 
affected in this subarea and the take limits will be introduced for 
coho, making them congruent with the take limits for steelhead and 
chinook in that area.
    Subarea 4 consists of the area where this rule superimposes the 
take prohibition for steelhead and chinook on the existing take 
prohibition for the Southern Oregon/Northern California coho ESU. 
Deliberate take of steelhead and chinook will be newly regulated in 
this area, but no change will be made for the take limits applicable to 
coho.
    Subarea 5 consists of those portions of the Northern California 
steelhead and California coastal chinook ESUs not utilized by either 
coho ESU. Because steelhead (and chinook to a lesser extent) are much 
more widely distributed within the ESU boundaries than coho, there are 
substantial areas where steelhead and/or chinook will be protected 
which are not utilized by coho. Modifications to habitat which have no 
risk of taking coho may risk taking steelhead and chinook in such 
areas.
    Although there may be some limited impact in all of these subareas 
the only substantial economic impacts on individual small entities from 
this rule, therefore, are expected to occur in the non-federal portions 
of subarea 5, which lie almost entirely in low population density areas 
of Humboldt, Mendocino, and Sonoma counties. These three counties had a 
combined 1998 population of about 640,000 with personal income of about 
$18 billion. However, most of the people and income are contributed by 
urban centers in Sonoma and Humboldt counties which are not contained 
in subarea 5. No population estimate is available for subarea 5, but it 
is believed to be less than 15,000. Small entities in this

[[Page 1127]]

subarea likely to be directly affected by this rule include private 
timber harvesters, cattle ranches, a small number of farms and 
vineyards, and possibly small businesses engaged in road and culvert 
construction. The number of such entities is not known, but is a small 
subset of the same classes of entities found in the three counties 
containing subarea 5.
    This final rule applies the take prohibitions enumerated in ESA 
section 9(a)(1), and also limits application of the take prohibitions 
to certain specified categories of activities that contribute to 
conserving these ESUs or are governed by a program that adequately 
limits impacts on these ESUs. 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 take limitations in 
this final rule would involve recordkeeping and/or reporting to support 
that continuing determination. NMFS has attempted to minimize any 
burden associated with these programs.
    The public reporting burden per response for this collection 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 MRCI ordinance development package; and 10 
hours for an MRCI development annual report.
    This rule also contains a collection-of-information requirement 
associated with habitat restoration activities conducted under 
watershed conservation plans that has received PRA approval from OMB 
under control number 0648-0230. The public reporting burden for the 
approval of watershed conservation 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.
    In formulating this final 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 last approach would 
leave the threatened ESUs without any protection other than provided by 
ESA section 7 consultations for actions with some Federal nexus.
    The approach taken in this final rule is alternative 5 which would 
impose the ESA 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 the proposed rule). 
This approach is fundamentally the same as that taken in NMFS's July 
2000 ESA 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 this final 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 this 
final 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.

Executive Order (E.O.) 12866

    Pursuant to E.O. 12866 (58 FR 51735, October 4, 1993), NMFS has 
prepared a Regulatory Impact Review (RIR) which considers costs and 
benefits of the regulatory alternatives that were considered in 
developing this ESA 4(d) rule, including the alternative of not 
promulgating a protective rule. Copies of the RIR are available upon 
request (see ADDRESSES).
    Costs and benefits of this final 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 this 
rule, as well as each of the other alternatives NMFS considered that 
afford sufficient protection for the threatened ESUs, is its 
contribution to the recovery of the threatened ESUs. No monetized 
measure of the benefit of recovery is available.
    The RIR finds that in Area 1, Area 3, and Area 4 the only 
activities likely to be affected by this final rule are those involving 
deliberate direct take of listed species, especially angling, hatchery 
operation, and research. The costs of these activities, either to the 
state or private parties, are estimated to increase over the baseline 
due to increased permitting, NEPA documentation, and monitoring 
requirements. Activities in Area 2, where coho already have a take 
prohibition in place, will become less costly due to reduced permitting 
and NEPA requirements. In Area 5, timber harvest, grazing, stream 
diversions, summer dams, road construction and maintenance, and 
construction of new or improved culverts will come under increased 
regulation. Incremental costs associated with summer dams, roads, and 
culverts are significant but could not be quantified at this time. 
Aggregate quantified incremental first-year costs for the proposed rule 
are estimated to be between $11.8 million and $17.7 million, while 
annual costs thereafter are estimated to be from $4.6 million to $9.1 
million. The same costs estimated for a blanket take prohibition with 
no limits are estimated at $18.9 million to $21.6 million and $6.2 
million to $10.7 million, respectively.

[[Page 1128]]

    The RIR concludes that the proposed rule would substantially 
improve conditions favorable to recovery of the threatened ESUs 
compared to taking no action, that the only alternative which could 
achieve quicker results (detailed prescriptive requirements) is too 
costly and intrusive, and that the proposed rule is the least costly 
rule among the alternatives which are sufficiently protective of 
threatened salmon and steelhead ESUs.
    Because this final rule will eliminate application of the section 9 
take prohibition to those State or local programs or activities that 
fall within defined take limitation criteria protective of salmonids, 
those programs will encourage participation and contribute to the 
conservation of the threatened ESUs covered by the rule; 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 this final rule will minimize the cost 
to the public of avoiding or minimizing take over the long term in 
comparison with the other alternatives that were considered.

Executive Order 13175-Consultation and Coordination with Indian Tribal 
Governments

    E.O. 13175 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 final 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. 13175 do not apply to this final rule.
    Nonetheless, NMFS took steps to inform potentially affected tribal 
governments, to provide information to tribes on the content and scope 
of the rule and its relationship to the Tribal ESA 4(d) rule (65 FR 
42481, July 10, 2000), and to solicit tribal input on the rule. NMFS 
did not receive any formal comments from Indian tribes, but remains 
prepared to meet with interested tribes to discuss the rule and its 
relationship to their activities. As a result of the July 2000 Tribal 
ESA 4(d) rule, NMFS has already established efforts to coordinate with 
many of the tribes that are located within the range of ESUs affected 
by this 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 final rule. In fact, this final 
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 ESA 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 ESA 4(d) rule. Because the threatened ESUs 
addressed in this rule overlap substantially with the ESUs addressed in 
the July 2000 ESA 4(d) rule (65 FR 42422), working relationships have 
already been established with many agencies and organizations that may 
be affected by this 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 the state 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 ESA 
4(d) rule or this final 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 final rule contains 
collection-of-information requirements subject to the PRA and which 
have been approved by OMB under control number 0648-0399.
    The public reporting burden per response for this collection 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 MRCI ordinance development package; and 10 
hours for an MRCI development annual report.
    This final rule also contains a collection-of-information 
requirement associated with habitat restoration activities conducted 
under watershed conservation plans that has received PRA approval from 
OMB under control number 0648-0230. The public reporting burden for the 
approval of watershed conservation 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.
    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).

National Environmental Policy Act

    NMFS prepared EAs, as defined under the authority of NEPA of 1969, 
addressing each threatened ESU covered by this final rule. Based on a 
review and evaluation of the information contained in these NEPA 
documents, NMFS has determined that promulgation of protective 
regulations for these four threatened salmonid ESUs, including the 
creation of limitations on the applicability of the prohibitions on 
taking any of those salmonids, is not a major Federal action that would 
significantly affect the quality of the

[[Page 1129]]

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/Findings of No Significant Impact are available on 
request (see ADDRESSES).

List of Subjects in 50 CFR Part 223

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

    Dated: December 31, 2001.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is 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 April 9, 2002. 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 
September 9, 2002, 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.

[[Page 1130]]

    (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 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 July 8, 2002.
    (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.

[[Page 1131]]

    (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 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 July 8, 2002.
    (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

[[Page 1132]]

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.
    (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 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.
    (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

[[Page 1133]]

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 
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 not 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.
    3. Fish Screening Criteria for Anadromous Salmonids, National 
Marine Fisheries Service, Southwest Region, 1997.
[FR Doc. 02-440 Filed 1-8-02; 8:45 am]
BILLING CODE 3510-22-S