[Federal Register: November 1, 1999 (Volume 64, Number 210)]
[Proposed Rules]               
[Page 58934-58936]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 58934]]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF71

 Endangered and Threatened Wildlife and Plants; Notice of Intent 
to Prepare a Proposed Special Rule Pursuant to Section 4(d) of the 
Endangered Species Act for the Bull Trout

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of proposed rulemaking.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
considering proposing additional special regulations under the 
authority of section 4(d) of the Endangered Species Act (Act) of 1973, 
as amended, that would promote the conservation of bull trout 
(Salvelinus confluentus). The Act prohibits take of species that are 
listed as endangered, except where authorized by permit. We have 
extended the Act's take prohibition to species that are listed as 
threatened under the authority of the Act. For some threatened species, 
we have issued special rules that exempt from the take prohibition 
certain activities that are consistent with conservation of the 
species. Published elsewhere in today's Federal Register is the final 
rule listing bull trout within the coterminous United States as 
threatened. In the final listing rule we have included a special rule 
that exempts from the take prohibition fishing activities authorized 
under State, National Park Service, or Native American Tribal laws and 
regulations and take for educational purposes, scientific purposes, the 
enhancement of propagation or survival of the species, zoological 
exhibition, and other conservation purposes consistent with the Act.
    We are considering amending this special rule to also exempt two 
categories of activities affecting bull trout: Habitat restoration; and 
other land and water management activities that are governed by 
enforceable regulations that provide substantial protection for bull 
    Habitat restoration activities designed to enhance riparian and 
stream habitat conditions for salmonids can provide major contributions 
to the conservation of bull trout. However, some of these activities 
may cause short-term impacts, such as sediment entering streams from 
culvert removal or bank restoration, that result in take of bull trout. 
We are considering amending the special rule to exempt such activities, 
both Federal and non-Federal, from the take prohibitions of the Act, 
where the activities meet criteria for minimizing adverse impacts to 
bull trout. We would require some, as yet to be defined, minimal annual 
level of reporting to help us monitor restoration efforts and 
    We are also considering amending the special rule to exempt other 
land and water management activities from the take prohibitions of the 
Act when they are conducted in accordance with enforceable regulations 
that provide substantial protection for bull trout. Activities 
considered for coverage under the amended special rule would be non-
Federal activities, and would be implemented under locally prepared, 
Service-approved, Conservation Enhancement Plans (CEPs). Activities 
that would be exempted under a special rule could involve some level of 
impact, but would have to fall within an overall framework that would 
contribute to the conservation of the species.

DATES: Send your comments to reach us on or before December 16, 1999.

ADDRESSES: You should send your comments to the U.S. Fish and Wildlife 
Service, Western Washington Office, 510 Desmond Drive, Lacey, 
Washington 98503.

FOR FURTHER INFORMATION CONTACT: Gerry Jackson, Supervisor, Western 
Washington Office, (see ADDRESSES section) (telephone 360/753-9440; 
facsimile 360/753-9405).



    Recent listings of several salmon species in Oregon and Washington 
have raised concern for the status of salmon and related fish species 
such as bull trout (Salvelinus confluentus) in the Northwest. State 
agencies and local governments have been working with us, the National 
Marine Fisheries Service, and other Federal agencies to develop 
strategies to protect and recover salmon species in the Pacific 
Northwest. Some of these efforts include the development of 
conservation strategies for bull trout.
    We are responding to the need to conserve the bull trout throughout 
its range by promoting activities that contribute to the conservation 
of species. Restoration activities that clearly enhance the quantity 
and quality of habitat required by bull trout can provide major 
contributions toward its conservation. However, restoration activities 
that cause short-term sedimentation of a stream, such as culvert 
removal or bank restoration, may result in take of bull trout. An 
amended special rule would exempt such activities from the take 
prohibitions of the Act where the activities meet criteria for 
minimizing adverse impacts and provide conservation benefits to bull 
trout. We would require some, as yet to be defined, minimal annual 
level of reporting to help us monitor restoration efforts and 
    We see an opportunity for State agencies and county and local 
governments (collectively referred to as the Jurisdictions) to provide 
substantial protection for bull trout. Jurisdictions would be able gain 
exemptions from the Act's prohibitions against incidental take for 
thousands of their citizens, including small landowners. Jurisdictions 
could utilize their authorities to implement existing regulations, or 
promulgate new regulations that comply with the provisions of the Act. 
The Jurisdictions would enforce those regulations covering a variety of 
land and water management activities. A few of these existing 
authorities include growth management acts, shoreline management acts, 
State environmental policy acts, timber harvest regulations, and 
instream construction and water discharge permits. The benefit of an 
amended 4(d) rule to these Jurisdictions is that it provides an 
expedient process for obtaining generic approval in advance of ongoing 
and proposed actions requiring compliance with the take prohibitions of 
the Act. The amended 4(d) rule would provide take coverage and cost 
savings to thousands of small land owners, and others, who are 
conducting activities that may take bull trout. Once established, it is 
anticipated that Jurisdictions could obtain generic Service approval 
for State and local regulated activities faster than through the 
section 10(a)(1)(B) process for habitat conservation plans (HCPs). 
Section 10(a)(1)(B) requires applicants to prepare a HCP, and some 
applicants must also prepare either an environmental assessment or 
environmental impact statement to comply with the National 
Environmental Policy Act (NEPA). This can be costly and time consuming, 
thus an amended 4(d) rule could be a preferred alternative for many 
individuals whose activities may incidentally take bull trout. 
Additionally, a Jurisdiction may already be undertaking efforts to 
protect salmon and bull trout habitat (see examples below), that may 
qualify as a CEP without additional efforts on its part. This would 
prove to be a more expedient and cost-effective means of obtaining 
compliance with the Act than

[[Page 58935]]

the 10(a)(1)(B) permitting process. All benefits to the bull trout 
derived from conservation contributions as a result of an amended 4(d) 
rule would expedite its recovery and advance the time at which the 
protective measures of the Act are no longer required.
    Jurisdictions would develop CEPs to be approved by us for coverage 
under the special rule. Regulations or other protective measures may be 
incorporated in whole or in part in a CEP. In general, the CEPs would 
address baseline conditions and current and projected impacts to bull 
trout within the vicinity of activities to be covered under the special 
rule. The Jurisdictions would identify future actions and protective 
measures to be undertaken to protect or enhance bull trout populations. 
We would require the Jurisdictions to ensure that their CEPs have a 
high level of certainty of implementation, and that they include a 
comprehensive monitoring program and an adaptive management component 
with the flexibility to respond to new scientific knowledge. We would 
authorize activities under the CEP as long as the provisions of the 
special rule are met and the protective measures undertaken contribute 
to the long-term survival and recovery of the bull trout in the wild.
    Currently, the Jurisdictions have three options for compliance with 
the Act--the avoidance of all take, incidental take authorization under 
section 7, or incidental take authorization through an HCP under 
section 10(a)(1)(B) of the Act. We envision that an amended special 
rule for bull trout would provide a fourth option for the Jurisdictions 
to ensure that their land and water management activities comply with 
the Act. The Jurisdictions could attain compliance with the Act through 
the adoption of approved CEPs for the bull trout. Once established, it 
is anticipated that this regulatory process would proceed faster in 
obtaining our approval for State and local regulated activities than 
the section 10(a)(1)(B) process for HCPs. Although a 4(d) rule offers a 
single species approach for compliance under the Act, approved 
activities may provide the basis for a broader, more comprehensive 
multi-species HCP for listed and unlisted species. Therefore, a 4(d) 
rule may, in some instances, serve as a bridge to producing a 
comprehensive, watershed-based HCP.
    As an example of a Jurisdiction benefitting from an amended 4(d) 
rule, the Washington State Forest Practices Board is currently 
developing regulations for State and private timber harvest that would 
also protect salmon and bull trout habitat along streams. Once the 
Board develops and adopts these regulations, they may be presented to 
us in the form of a CEP for coverage under the 4(d) rule. Non-Federal 
timber harvest activities would be in compliance with the Act as long 
as the activities approved by us under the CEP are conducted in 
accordance with State Forest Practices Regulations.
    As another example of a potential application of the 4(d) 
rulemaking process and the benefits derived from an amended 4(d) rule, 
the Tri-Counties of King, Pierce and Snohomish, in Washington 
(including the cities and municipalities within these counties) have 
formed a coalition to develop conservation strategies for listed 
salmonids, including bull trout. These conservation strategies will 
address critical area ordinances, herbicide and pesticide use, 
shoreline management, storm water management, road maintenance, and 
watershed planning. Once developed, these strategies would be 
implemented through the use of existing authorities, such as the State 
Environmental Policy Act, Shoreline Protection Act and the Growth 
Management Act, and through administrative permitting authorities, 
including grading and building permits, tree permits and other permits. 
Here again, an amended 4(d) rule governing specific activities that, 
while part of an overall protective framework, may result in take of 
bull trout would provide compliance under the Act when conducted under 
an approved CEP that is regulated and enforced by the Jurisdictions.
    We would require CEPs to appropriately address relevant effects of 
activities under the control of the non-Federal landowner or 
Jurisdiction as they relate to the following threats identified in the 
final listing rule for the bull trout:
    (1) Introduction of non-native fish species that compete with, 
hybridize with, or prey on bull trout;
    (2) Dredging, channelization, diversion, instream vehicle operation 
or rock removal, or other activities that destroy or significantly 
alter cover, channel stability, substrate composition or temperature in 
areas used by the bull trout for foraging, cover, migration or 
    (3) Discharging or dumping toxic chemicals, silt, or other 
pollutants into waters or onto land in a manner that would allow these 
substances to enter into waters supporting bull trout;
    (4) Recreational activities, timber harvest, grazing, mining, 
hydropower development, or other developmental activities that destroy 
or significantly alter cover, channel stability, substrate composition, 
or temperature in areas used by the bull trout for foraging, cover, 
migration or spawning;
    (5) Instream or shoreline recreational and commercial activities 
that significantly disrupt behavioral patterns and harass migrating or 
spawning bull trout.
    We would announce in the Federal Register and solicit public 
comment on CEPs prior to any approval. We will comply with NEPA in 
implementing the provisions of the proposed special rule. Since some 
States require a NEPA like review, a CEP may have an associated 
environmental review document already prepared by the Jurisdiction. In 
these cases, we will consider this information in our NEPA review; 
however, a review from a national perspective rather than a local 
review may be needed to fully comply with the requirements of NEPA.
    We request comments on whether we should propose special 
regulations that would provide the opportunity for the Jurisdictions to 
attain compliance under the Act through their authorities to regulate 
and enforce land and water management activities. In addition, we 
request specific information and comment from Federal and State 
agencies, local municipalities and private individuals or organizations 
on the following:

Habitat Restoration Activities

    (1) The types of habitat restoration activities we should address 
under an amendment to the special rule;
    (2) The standards or criteria for habitat restoration activities 
that must be met in order to be exempted from take prohibitions; and
    (3) Comments on the nature and scope of minimal monitoring and 
reporting programs for habitat restoration activities.

Regulated Activities

    (1) The types of regulated activities we should address in an 
amendment to the special rule;
    (2) The standards or criteria for regulated activities that must be 
met in order to be exempted from the take prohibitions;
    (3) The appropriate components of a CEP or similar plan;
    (4) Appropriate monitoring and reporting programs for regulated 
activities; and
    (5) Information on how habitat for the bull trout should be 
identified and how it should be protected or enhanced.

[[Page 58936]]

    Dated: September 1, 1999.

John G. Rogers,
Director, Fish and Wildlife Service.
[FR Doc. 99-28296 Filed 10-29-99; 8:45 am]