[Federal Register Volume 74, Number 8 (Tuesday, January 13, 2009)]
[Notices]
[Pages 1663-1664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-369]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XM60


Availability of Draft Guidelines for Use of Pesticide-Treated 
Wood Products

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

ACTION: Notice of availability; request for comments.

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SUMMARY: NMFS is providing this notice in order to allow other agencies 
and the public an opportunity to review and provide comments on a draft 
guideline document regarding the use of pesticide-treated wood products 
in aquatic environments. The intent of the guidelines is to aid NMFS 
personnel conducting Endangered Species Act (ESA) and Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) 
Essential Fish Habitat (EFH) consultations in making consistent 
determinations regarding projects proposing to use pesticide-treated 
wood products in habitats utilized by NOAA trust resources. The 
guidelines attempt to convey a summary of information that should be 
considered when examining the effects determinations made by the action 
agency, and to direct personnel to documents containing more detailed 
information when needed. NMFS is requesting comment on the draft 
guideline document before it is finalized. All comments received before 
the due date will be considered before finalizing the guideline 
document. All comments received will become part of the public record 
and will be available for review upon request.

DATES: Public comments must be received on or before 5 p.m., Pacific 
standard time March 16, 2009.

ADDRESSES: Comments on this draft guideline may be submitted by mail to 
the National Marine Fisheries Service, 777 Sonoma Avenue, Suite 325, 
Santa Rosa, CA 95409, Attn: Water Quality Coordinator/Treated Wood 
Comments. Comments concerning the draft guideline may be sent via 
facsimile to (707) 578-3435. Comments may also be submitted 
electronically to [email protected].
    The reports are available at http://swr.nmfs.noaa.gov/ or by 
calling the contact person listed below or by sending a request to 
[email protected]. Please include appropriate contact 
information when requesting the documents.

FOR FURTHER INFORMATION CONTACT: Joseph Dillon, Southwest Region Water 
Quality Coordinator at 707-575-6093.

SUPPLEMENTARY INFORMATION: The purpose of the guidance document is to 
aid NMFS personnel conducting Endangered Species Act (ESA) and 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) Essential Fish Habitat (EFH) consultations to analyze the 
potential effects and mitigations for

[[Page 1664]]

projects proposing to use pesticide-treated wood products in habitats 
utilized by NOAA trust resources. The guidelines summarize information 
that should be considered when examining the effects determinations 
made by an action agency and to direct personnel to documents 
containing more detailed information when needed. The draft guidelines 
focus on copper treated wood, primarily ammoniacal copper zinc arsenate 
(ACZA), as this is the most prominent material used on the west coast 
of the United States and in Alaska, and creosote treated products.
    These products are being examined by NMFS to determine the risks 
generated by their usage to the living marine resources which NOAA is 
responsible for managing, referred to as NOAA's Trust Resources. These 
include anadromous salmonids managed under the ESA and EFH as 
designated by the Magnuson-Stevens Act. The use of pesticide-treated 
wood in or near aquatic environments commonly requires a permit issued 
by the U.S. Army Corps of Engineers. Under the ESA, Federal agencies 
must consult with NMFS to ensure that any action authorized, funded or 
carried out by the Federal agency does not jeopardize the continued 
existence of any threatened or endangered species or result in the 
destruction or adverse modification of designated critical habitat. The 
issuance of this permit by the U.S. Army Corps of Engineers requires 
consultation under Section 7 of the ESA to determine whether its 
approval action would jeopardize federally-listed species or adversely 
modify designated critical habitat, and requires an EFH assessment to 
determine whether its approval action would adversely affect EFH. Since 
the use of pesticide-treated wood materials in situations that may 
expose aquatic ecosystems is widespread along the west coast of the 
United States and in Alaska, development of guidelines from the 
information presented in these reports should help to streamline the 
review of permitting processes as well as the permitting processes 
themselves. In some instances, these reports may be used to update 
existing policies regarding pesticide-treated wood.
    The purpose of the ESA is to provide a means whereby the ecosystems 
upon which endangered and threatened species depend may be conserved, 
to provide a program for the conservation of threatened and endangered 
species and to take steps that may be appropriate to achieve this 
conservation. Conservation is defined in the ESA to mean using, and the 
use, of all methods and procedures necessary to bring any endangered or 
threatened species to the point at which the protections provided by 
the ESA are no longer necessary. It is the policy of Congress, as 
declared in the ESA, that all Federal departments and agencies shall 
seek to conserve endangered and threatened species and shall utilize 
their authorities in furtherance of the purposes of the ESA.
    The Magnuson-Stevens Act established procedures designed to 
identify, conserve, and enhance EFH for those species regulated under a 
Federal fisheries management plan. EFH regulates an activity with an 
eye toward its impact on habitat characteristics. EFH is defined as 
those waters and substrate necessary to fish for spawning, breeding, 
feeding or growth to maturity. ``Waters'' include aquatic areas and 
their associated physical, chemical, and biological properties that are 
used by fish and may include aquatic areas historically used by fish 
where appropriate; ``substrate'' includes sediment, hard bottom, 
structures underlying the waters, and associated biological 
communities; ``necessary'' means the habitat required to support a 
sustainable fishery and the managed species' contribution to a healthy 
ecosystem; and ``spawning, breeding, feeding, or growth to maturity'' 
covers a species' full life cycle. EFH for salmonids includes their 
saltwater and fresh water ranges.
    Effects of pesticide-treated wood that need to be examined during 
the ESA and EFH consultations include direct, indirect, and cumulative 
effects. An example of direct effects includes the acute and sublethal 
impacts of copper and polycyclic aromatic hydrocarbons to salmonids and 
the EFH of managed species. An example of an indirect effect includes 
the adverse impacts to the prey base upon which ESA-listed and EFH- 
managed species depend. An example of a cumulative effect includes the 
impacts of multiple structures and contaminants in an area with or 
without additional loading from urban sources, historic mining, 
smelters, ships' hulls or any other source. The synthesis of these 
effects to habitat and to individuals, coupled with local environmental 
conditions and specific species of concern, defines the risk of a 
project proposing the use of pesticide-treated wood.

    Dated: January 6, 2009.
Angela Somma,
Chief, Endangered Species Division, Office of Protected Resources, 
National Marine Fisheries Service.
[FR Doc. E9-369 Filed 1-12-09; 8:45 am]
BILLING CODE 3510-22-S