[Federal Register Volume 68, Number 188 (Monday, September 29, 2003)]
[Rules and Regulations]
[Page 55900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24567]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 030716175-3175-01; I.D: 071503B]
RIN 0648-AQ77


Endangered and Threatened Species: Amendment of the Code of 
Federal Regulations to Withdraw Critical Habitat Designations Vacated 
by Court Order

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to remove critical habitat 
designations for 19 salmon and steelhead Evolutionarily Significant 
Units (ESUs) in order to comply with an order of a Federal District 
Court.

DATES: The action became effective on April 30, 2002.

FOR FURTHER INFORMATION CONTACT: Steve Stone, NMFS Northwest Region 
(WA, OR, and ID), 503/231-2317; Craig Wingert, NMFS Southwest Region 
(CA), 562/980-4021; or Lamont Jackson, NMFS Headquarters (Silver 
Spring, MD), 301/713-1401.

SUPPLEMENTARY INFORMATION: On February 16, 2000, NMFS published a final 
rule designating critical habitat for 19 ESUs of west coast salmon and 
steelhead under section 4 of the Endangered Species Act (16 U.S.C. 1531 
et seq.)(65 FR 7764). The designations included more than one hundred 
and fifty river subbasins covering a total land area of approximately 
154,000 square miles (400,400 square kilometers) in WA, OR, ID, and CA. 
Within each occupied subbasin, NMFS designated as critical habitat 
those stream areas accessible to listed fish, along with the associated 
riparian zone. Areas considered inaccessible included areas above long-
standing natural impassable barriers and areas above impassable dams, 
but not areas above ephemeral barriers such as failed culverts.
    NMFS determined in 2000 that the critical habitat designations 
would impose few if any additional requirements on federal agencies 
beyond those already imposed by the listing of the species themselves. 
The ESA's prohibition against any action that is likely to result in 
the destruction or adverse modification of critical habitat applies 
only to federal agencies, which are also prohibited from taking any 
action that is likely to jeopardize the continued existence of listed 
species. NMFS reasoned that since it was designating only occupied 
habitat, there would be few or no actions that adversely modified 
critical habitat that also did not jeopardize the continued existence 
of the species. Therefore, NMFS determined there would be no economic 
impact as a result of the designations (65 FR 7764, 7765, February 16, 
2000).
    The National Association of Homebuilders (NAHB) challenged the 
critical habitat designations in U.S. District Court in Washington, 
D.C. as having inadequately considered the economic and other impacts 
of the designations (National Association of Homebuilders v. Evans, 
Civ. No. 00-2799). NAHB also challenged NMFS' designation of Essential 
Fish Habitat (EFH) (Pacific Coast Salmon Fishery Management Plan, 
2000). While the NAHB litigation was pending, the U.S. Court of Appeals 
for the Tenth Circuit issued its opinion in New Mexico Cattlegrowers' 
Association v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 
2001). In that case, the Court rejected the Fish and Wildlife Service's 
approach to economic analysis, which was similar to the approach taken 
by NMFS in the final rule designating critical habitat for 19 ESUs of 
west coast salmon and steelhead. Subsequent to the Tenth Circuit 
decision, NMFS entered into and sought judicial approval of a consent 
decree resolving the NAHB litigation. That decree provided for the 
withdrawal of the critical habitat designations for the 19 salmon and 
steelhead ESUs, and dismissed NAHB's challenge to the EFH designations. 
The District Court approved the consent decree and vacated the critical 
habitat designations by Court order on April 30, 2002 (2002 WL 1205743, 
D.D.C. April 30, 2002).
    As a result of the Court's decision, the agency is now amending the 
Code of Federal Regulations to withdraw critical habitat designations 
for the following 19 ESUs of salmon and steelhead: (1) Puget Sound 
chinook salmon; (2) Lower Columbia River chinook salmon; (3) Upper 
Willamette River chinook salmon; (4) Upper Columbia River spring-run 
chinook salmon; (5) California Central Valley spring-run chinook 
salmon; (6) California coastal chinook salmon; (7) Oregon Coast coho 
salmon; (8) Hood Canal summer-run chum salmon; (9) Columbia River chum 
salmon; (10) Ozette Lake sockeye salmon; (11) Southern California 
steelhead; (12) South-Central California coast steelhead; (13) Central 
California Coast steelhead; (14) Central Valley California steelhead; 
(15) Upper Columbia River steelhead; (16) Snake River Basin steelhead; 
(17) Lower Columbia River steelhead; (18) Upper Willamette River 
steelhead; and (19) Middle Columbia River steelhead.

Classification

    This final rule implements a Court order and does not involve the 
exercise of agency discretion and, therefore, under 5 U.S.C. 553(b)(B) 
good cause exists to waive the notice and comment requirements of the 
Administrative Procedure Act, as such procedures are unnecessary. 
Further, in that this rule implements a Court order already in effect, 
good cause exists under 5 U.S.C. 553(d)(3) to waive the 30-day delay in 
effective date.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 226

    Endangered and threatened species

    Dated: Septrmber 24, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 226 is amended as 
follows:

PART 226--[AMENDED]

0
1. The authority citation of part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

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2. Remove Tables 7 through 24.

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3. Remove and reserve Sec.  226.212.
[FR Doc. 03-24567 Filed 9-26-03; 8:45 am]
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