[Federal Register: March 17, 2003 (Volume 68, Number 51)]
[Page 12676-12678]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



National Oceanic and Atmospheric Administration



U.S. Fish and Wildlife Service


Notice of Intent to Prepare a Draft Environmental Impact 
Statement for Federal Actions Under the Endangered Species Act Related 
to the State of Washington Forest Practices Rules

AGENCY: National Marine Fisheries Service (NOAA Fisheries), National 
Oceanic and Atmospheric Administration (NOAA), Commerce.U.S. Fish and 
Wildlife Service (FWS), Department of the Interior.

ACTION: Notice of Intent to Prepare an Environmental Impact Statement.


SUMMARY: Notice is hereby given pursuant to the National Environmental 
Policy Act, as amended (NEPA), that NOAA Fisheries and FWS (known 
hereafter as the Services) intend to gather information necessary to 
prepare a Draft Environmental Impact Statement (DEIS) related to 
anticipated applications from the State of Washington (State) for take 
authorization or a take limit under the Endangered Species Act of 1973, 
as amended (ESA). Washington State has entered into discussions with 
the Services in anticipation of submitting an application for take 
authorization pursuant to the ESA (see Background Section for specific 
sections) for the Washington State Forest Practices Rules, regulating 
forest management activities on non-Federal forest lands in the state 
of Washington.. Both Services have listed threatened and endangered 
species in the State that are likely to be affected by this action. The 
species are identified below in SUPPLEMENTARY INFORMATION and in the 
``Covered Resources'' section of Appendix A and Schedule H-1 of the 
Forests and Fish Report, April 1999, available at http:// www.wa.gov/ 

Forests and Fish Report, April 1999, available at http:// www.wa.gov/ 

dnr/ htdocs/ forestpractices/ rules/ forestsandfish or by calling one 
of the contacts listed below in ADDRESSES.
    The Services are providing this notice: (1) to advise other 
agencies and the public of their intent to prepare a DEIS on the State 
application(s); and (2) to obtain suggestions and information on the 
scope of issues to include in the DEIS.

DATES: Written scoping comments for the DEIS from all interested 
parties must be received no later than 5 p.m. Pacific time on April 16, 
2003. Interested parties may contact the Services for more information 
at the addresses and phone numbers listed below. Four public scoping 
workshops will be held in 2003. Each meeting will begin with a one-hour 
open house to accommodate informal discussion and questions; the 
presentation portion of the meeting will begin at 6 p.m.
The meeting dates and times are:
    1. March 18, 2003, 5 - 8 p.m., Tacoma, WA.
    2. March 20, 2003, 5 - 8 p.m., Port Angeles, WA.
    3. March 25, 2003, 5 - 8 p.m., Spokane, WA.
    4. March 26, 2003, 5 - 8 p.m., Ellensburg, WA.

ADDRESSES: Written comments and requests for information should be sent 
to Craig Hansen, U.S. Fish and Wildlife Service, 510 Desmond Drive, 
S.E., Suite 102, Lacey, WA 98503-1273, telephone (360)753-6046, 
facsimile (360)753-9518; or Steve Keller, NOAA Fisheries, 510 Desmond 
Drive, S.E., Suite 103, Lacey, WA 98503-1273, telephone (360)534-9309, 
facsimile (360)753 9517. Comments and materials received will be 
available for public inspection, by appointment, during normal business 
hours at the above addresses.
    The meeting locations are:
    1. Tacoma, Tacoma Sheraton Hotel, 1328 Broadway Plaza, Tacoma, WA.
    2. Port Angeles, Red Lion Hotel, 221 North Lincoln, Port Angeles, 
    3. Spokane, Red Lion Hotel at the Park, 303 W. North River Drive, 
Spokane, WA.
    4. Ellensburg, Grupe Center at Central Washington University, 400 
East 8th Avenue, Ellensburg, WA.

FOR FURTHER INFORMATION CONTACT: Steve Keller, (360) 534-9309.


Species Listed in this Notice

    NMFS listed species potentially addressed in this action include 
Ozette Lake sockeye salmon (Oncorhynchus nerka), Snake River sockeye 
salmon (O. nerka), Puget Sound chinook salmon (O. tshawytscha), Lower 
Columbia River chinook salmon (O. tshawytscha), Upper Columbia River 
spring-run chinook salmon (O. tshawytscha), Snake River spring/summer 
chinook salmon (O. tshawytscha), Snake River fall chinook salmon (O. 
tshawytscha) Lower Columbia River steelhead (O. mykiss), Middle 
Columbia River steelhead (O. mykiss), Upper Columbia River

[[Page 12677]]

steelhead (O. mykiss); Snake River steelhead (O. mykiss), Columbia 
River chum salmon (O. keta), and Hood Canal summer-run chum salmon (O. 
    Refer to the following website for NMFS listing status and 
protective regulations: http://www.nwr.noaa.gov/1salmon/salmesa/index/

    FWS listed species potentially addressed in this action include 

bull trout (Salvelinus confluentus) and any or all unlisted Washington 
native fish and six stream breeding amphibians.


    NEPA requires Federal agencies to conduct an environmental analysis 
of their proposed actions to determine if the actions may affect the 
human environment. The Services expect to take action on ESA section 
10(a)(1)(B) and/or 4(d)Limit submittals expected from the State. 
Therefore the Services are seeking public input on the scope of the 
required NEPA analysis, including the range of reasonable alternatives 
and associated impacts of any alternatives.
    Section 9 of the ESA and implementing regulations prohibit the 
``taking'' of a species listed as endangered or threatened. The term 
take is defined under the ESA to mean harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct (16 U.S.C. 1532(19)). Harm is defined by the FWS to 
include significant habitat modification or degradation where it 
actually kills or injures wildlife by significantly impairing essential 
behavioral patterns, including breeding, feeding, and sheltering 
(50CFR17.3). NOAA Fisheries' definition of harm includes significant 
habitat modification or degradation where it actually kills or injures 
fish or wildlife by significantly impairing essential behavioral 
patterns, including breeding, feeding, spawning, migrating, rearing, 
and sheltering (64 FR 60727, November 8, 1999).
    The Services may promulgate rules under section 4(d) of the ESA 
establishing specific take prohibitions for threatened species that the 
Services determine to be consistent with the conservation needs of 
threatened species. Section 10(a)(1)(B) of the ESA provides a mechanism 
by which both Services may permit take through the issuance of an 
Incidental Take Permit (ITP). An ITP may be issued for take that could 
occur incidental to otherwise lawful activities, provided all permit 
issuance criteria are met, including the requirement that permit 
issuance would not appreciably reduce the likelihood of the survival 
and recovery of the species in the wild. The applicant for an ITP must 
prepare and submit to the Services for approval, a Habitat Conservation 
Plan (HCP) containing strategies for minimizing and mitigating the 
impacts of take associated with the proposed activities to the maximum 
extent practicable. The applicant must also ensure adequate funding 
will be provided for the HCP. An HCP and associated ITP could cover the 
threatened bull trout and salmon, plus any endangered and unlisted 
species that might be affected by the Washington State Forest Practices 
Rules. In addition, the ``No Surprises'' rule assures that the Services 
will not require the commitment of any additional land, water or 
financial compensation for HCPs that are being properly implemented 
throughout the term of the HCP and ITP. It is important to note that 
section 10 is the only ESA mechanism by which take authorization can be 
granted to non-Federal landowners for take of endangered species. On 
July 10, 2000, NOAA Fisheries promulgated and published an ESA section 
4(d) rule for threatened salmon and steelhead(65 FR 42422). In addition 
to establishing take prohibitions, the rule provides that certain 
specified activities or conservation plans may qualify for a limit from 
the rule's take prohibitions provided that such activities or programs 
qualify for one of 13 categories known as ``limits''. Limit 13 of this 
rule applies to forest management in Washington and specifically 
relates to non-Federal forest management activities that are at least 
as protective as the elements of the Forests and Fish Report. The 
Forests and Fish Report is a document that makes recommendations for 
improving forest management and timber harvest for the benefit of 
salmon and aquatic and riparian species. The report was prepared 
collaboratively by a group of stakeholders from private industry, 
public interest groups, State and Federal Government agencies, and 
Tribes. NOAA Fisheries has not yet determined whether the State's 
Forest Practices Rules as revised by the Forests and Fish report comply 
with this rule.
    FWS has not issued a comparable 4(d) rule, but is considering 
whether to exempt the take of bull trout that may occur through 
implementation of the Washington State Forest Practices Rules by 
adopting a 4(d) rule. A FWS 4(d) rule could be structured to exempt 
take that might occur as a result of implementing the State regulatory 
program, provided that the program is consistent with the conservation 
needs of the species. However, a 4(d) rule can only address take of 
species listed as threatened. The Forests and Fish Report addresses 
some endangered and unlisted species, as well as threatened species.
    Because both threatened and endangered species are likely to be 
affected and because there are alternative methods for meeting the 
requirements of the ESA, the State is working with both Services to 
develop one or more proposals.

State of Washington's Programs and Proposals

    The Washington State Forest Practices Board was established in 1975 
by the Washington State Legislature under the State Forest Practices 
Act. By law, the board is charged with establishing rules governing 
forest management activities on non-Federal forest land in the State in 
order to protect public resources while maintaining a viable timber 
industry. Those rules, as embodied in the Washington Administrative 
Code (Title 222 WAC), specifically consider the effects of various 
forest practices on fish, wildlife and water quality. The Forest 
Practices Act also requires the Washington Department of Natural 
Resources to administer and enforce all board-adopted rules on non-
Federal forest land. The board adopts Forest Practices rules pertaining 
to water quality protection after reaching agreement with the director 
of the Department of Ecology (Ecology) or the director's designee on 
the board.
    Beginning in late 1996, stakeholders determined additional 
protections should be developed because of the imminent listing of 
several salmon species in Washington under the Act, and because new 
information from watershed analyses and other sources indicated 
riparian protections in place at that time were not adequate for public 
resource protection. In response, the participants in a stakeholder 
negotiation process known as Timber, Fish, and Wildlife (TFW) began 
working on riparian issues and agreed to negotiate collaboratively in 
an effort to submit a proposal to the Forest Practices Board. Over the 
course of the negotiations, representatives from Federal agencies and 
Washington counties joined the effort, and representatives of 
environmental interests and some Tribes withdrew from the process. The 
remaining caucuses continued negotiating and went on to write the 
Forests and Fish Report (April 1999), which ultimately became the basis 
for new Forest Practices Rules with increased attention to the needs of 
salmon and other aquatic and riparian species on forest lands. The 
groups contributing to the development of the report included Federal 
agencies (FWS,

[[Page 12678]]

NOAA Fisheries and Environmental Protection Agency), state agencies 
(Washington Departments of Natural Resources, Governor's Office, Fish 
and Wildlife, and Ecology), the Tribes, the Washington State 
Association of Counties, the Washington Forest Protection Association, 
and the Washington Farm Forestry Association.
    Following publication of the Forests and Fish Report, the 
Washington State Legislature directed the Forest Practices Board to 
adopt rules consistent with the Forest and Fish Report. The board 
conducted an evaluation of the proposal, and alternatives to the 
proposal, for modifying the Forest Practices Rules. This evaluation 
included a State Environmental Impact Statement (SEIS), under the 
Washington State Environmental Policy Act. The State's Final SEIS, 
entitled ``Alternatives for Forest Practices Rules for Aquatic and 
Riparian Resources'' was published in April 2001.
    In consideration of this evaluation, the Forest Practices Board 
adopted new rules in May 2001, which were based on the Forests and Fish 
Report. Effective July 2001, these new rules cover a wide variety of 
forest practices and include a new, more functional classification of 
rivers and streams on non-Federal forest land; improved plans for 
properly designing, maintaining, and upgrading existing and new forest 
roads; additional protections for unstable slopes; greater protections 
for riparian areas intended to maintain properly functioning 
conditions; a process for adaptive management; and other features.
    Washington State has now entered into discussions with the 
Service's in anticipation of submitting an application for ESA take 
authorization pursuant to Section 10(a)(1)(B) of the Act, a 4(d) Limit 
or both for the Washington State Forest Practices Rules, regulating 
forest management activities on non-Federal forest lands in the state 
of Washington.

Review Under National Environmental Policy Act

    The Services will conduct an environmental review of the 
application package(s) to be submitted by the State and prepare a 
Federal DEIS. The DEIS will analyze the proposal, as well as a full 
range of reasonable alternatives and the associated impacts of each. 
The Services are in the process of developing alternatives for 
analysis. Alternatives currently under consideration include: a No 
Action alternative; an alternative resulting in the issuance of a 
Section 10 Permit based on an HCP, which includes the full complement 
of practices endorsed by the Forests and Fish Report; an alternative 
resulting in NOAA Fisheries determining that the State Forest Practices 
Rules and non-regulatory elements of the State's program are at least 
as protective of threatened fish as the Forests and Fish Report, thus 
qualifying the program under Limit 13 of the July, 2000 4(d) rule; an 
alternative that includes the adoption of a similar 4(d) rule by the 
FWS; and alternatives involving an ESA incidental take permit or 4(d) 
rules associated with measures that are either more or less protective 
than the complete Forests and Fish Report package. Additional 
alternatives may be developed based on input received from this and 
future public comment opportunities during the development of the DEIS.
    Comments and suggestions are invited from all interested parties to 
ensure the full range of alternatives related to this proposed action 
and all significant issues are identified. The Services request that 
comments be as specific as possible. Comments should include 
information, issues, and concerns regarding: the direct, indirect, and 
cumulative effects that implementation of the proposal could have on 
endangered and threatened species or their habitats; other possible 
alternatives; potential adaptive management and/or monitoring 
provisions; funding issues; baseline environmental conditions; other 
plans or projects that might be relevant to this project; and 
minimization and mitigation measures. In addition to considering 
impacts to threatened and endangered species and their habitats, the 
DEIS will analyze the effects the alternatives would cause to other 
components of the human environment. As a result comments specific to 
the following are also requested: air quality; water quality and 
quantity; geology and soils; cultural resources; social resources; 
economic resources; and environmental justice.
    This notice is provided pursuant to NEPA regulations (40 CFR 
1506.6). Comments or questions should be directed to the Services at 
the addresses or telephone numbers provided above. All comments and 
materials received, including names and addresses, will become part of 
the administrative record and may be released to the public.
    This environmental review by the Services will be conducted in 
accordance with the requirements of the NEPA, NEPA Regulations (40 CFR 
1500-1508), other appropriate Federal laws and regulations, and 
policies and procedures of the Services for compliance with those 

    Dated: February 28, 2003.
Anne Badgley,
Regional Director, Fish and Wildlife Service, Region 1, Portland, 

    Dated: March 11, 2003.
Barbara Schroeder,
Acting Chief, Endangered Species Division, Office of Protected 
Resources, National Marine Fisheries Service.
[FR Doc. 03-6325 Filed 3-14-03; 8:45 am]