[Federal Register: February 11, 2005 (Volume 70, Number 28)]
[Page 7245-7247]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



National Oceanic and Atmospheric Administration


Fish and Wildlife Service

[I.D. 100604B]

Notice of Availability of a Draft Environmental Impact Statement 
and Conservation Plan

AGENCY: National Marine Fisheries Service, NOAA, Commerce; Fish and 
Wildlife Service, Interior

ACTION: Notice of applications and availability of documents for public 


SUMMARY: This notice announces the availability of the Draft 
Environmental Impact Statement (DEIS) and conservation plan for public 
review and comment. The Washington Department of Natural Resources 
(WDNR), on behalf of the State of Washington, has submitted 
applications to the National Marine Fisheries Service (NMFS) and the 
Fish and Wildlife Service (FWS) (the Services) for incidental take 
permits under section 10 of the Endangered Species Act (ESA) of 1973 as 
amended. The conservation plan also serves as the

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basis of an application to the Services that they each take steps under 
section 4(d) of the ESA to limit the application of the prohibition 
against take of listed salmon, steelhead and bull trout so that it does 
not apply to forest practices regulated by the State of Washington on 
non-Federal and non-tribal lands.

DATES: Written comments on the conservation plan, Implementation 
Agreement and DEIS will be accepted for a period of 90 days, beginning 
on February 11, 2005 and ending at 5 p.m. Pacific Time on May 12, 2005. 
Written comments may be sent by mail, facsimile, or e-mail to the 
addresses listed below.

ADDRESSES: Please address written comments to Sally Butts, U.S. Fish 
and Wildlife Service, 510 Desmond Drive S.E., Suite 102, Lacey, WA 
98503-1263, facsimile (360) 753-9518; or Steve Keller, National Marine 
Fisheries Service, 510 Desmond Drive S.E., Suite 103, Lacey, WA 98503-
1273, facsimile (360) 753-9517. Please send e-mail comments to: 

FOR FURTHER INFORMATION CONTACT: For further information, or to receive 
the documents on CD ROM, please contact Sally Butts, Project Manager, 
Fish and Wildlife Service, (360)753-5832; or Steve Keller, Project 
Manager, National Marine Fisheries Service, (360) 534-9309.

SUPPLEMENTARY INFORMATION: The documents being made available include: 
(1) the proposed conservation plan; (2) the proposed Implementing 
Agreement; and (3) the draft environmental impact statement (DEIS). 
This notice is provided pursuant to the ESA and the National 
Environmental Policy Act (NEPA) of 1969, as amended. The Services are 
furnishing this notice to allow other agencies and the public an 
opportunity to review and comment on these documents. All comments 
received will become part of the public record for this action.
    Hard bound copies of the conservation plan, Implementation 
Agreement and DEIS are available for viewing, or partial or complete 
duplication, at all Washington State libraries and most city and county 


    Section 9 of the ESA and Federal regulations prohibit the 
unauthorized ``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. Harm is defined 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 (50 CFR 17.3, 50 
CFR 222.102). NMFS further defines harm to include 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).
    The Services may issue incidental take permits, under section 
10(a)(1)(B) of the ESA, to take listed species incidental to, and not 
the purpose of, otherwise lawful activities. FWS regulations governing 
permits for federally endangered and threatened species are promulgated 
in 50 CFR 13.21. NMFS regulations governing permits for federally 
endangered and threatened species are promulgated under 50 CFR 222.307.
    The Services also may issue a rule under section 4(d) of the ESA, 
providing for the conservation of threatened species while authorizing 
incidental take under certain conditions.
    As a result of the listing of several salmon species and bull trout 
in Washington State in the mid to late 1990s, stakeholder groups 
including Federal agencies, state and local government agencies, 
Tribes, and large and small private forest landowners, collaborated to 
develop a science-based plan known as the Forests and Fish Report to 
improve water quality and habitat for aquatic species on non-Federal 
and non-Tribal forestland, while maintaining an economically viable 
timber industry in Washington State. The Forests and Fish Report was 
endorsed by the state legislature which amended the Revised Code of 
Washington with respect to the Washington Forest Practices Act (RCW 
76.09). Subsequently, the Washington Forest Practices Board amended the 
Washington Administrative Code with respect to the Washington Forest 
Practices Rules (WAC 222) to be consistent with the Forest and Fish 
Report. These rules, and other non-regulatory commitments, are 
incorporated in the state's conservation plan. The state legislature 
further stipulated that its actions were premised upon the expectation 
that any related incidental take of listed species otherwise prohibited 
by section 9 and Federal regulations would be permitted or authorized 
by the Services by June 30, 2005.
    The WDNR, on behalf of the State of Washington, has applied to: (1) 
obtain incidental take permits, pursuant to section 10(a)(1)(B) of the 
ESA for endangered, threatened and covered species; and, (2) request 
from the Services a limitation on the application of the prohibition 
against take, pursuant to section 4(d) of the ESA for identified 
threatened species only, for forest practices activities in compliance 
with the state forest practices rules and administrative program. The 
forest practices rules, administrative program and other provisions are 
described in the conservation plan and Implementing Agreement and serve 
as documentation that the conservation plan meets the requirements of 
section 4(d) as well as section 10. Each of these actions is 
represented as an alternative in the DEIS.
    Activities proposed for coverage under the incidental take permits 
or for a limitation on the application of the prohibition against take 
include the following: (1) timber harvesting (including final and 
intermediate harvesting, and pre-commercial thinning activities), (2) 
road construction, (3) road maintenance and abandonment, (4) site 
preparation and reforestation of harvested areas (including piling and 
or burning harvest debris and mechanical scarification), and (5) 
adaptive management (including research and monitoring to determine the 
effectiveness of the forest practices rules in protecting habitat for 
aquatic species).
    The conservation plan, described and analyzed in the DEIS, covers 
approximately 9.1 million acres of non-Federal and non-Tribal forest 
land across the State of Washington.
    The proposed incidental take permits, under section 10, would 
authorize the take of the following federally endangered species 
incidental to otherwise lawful activities: Upper Columbia River spring-
run chinook salmon (Oncorhynchus tshawytscha), Snake River sockeye 
salmon (O. nerka), and Upper Columbia River steelhead (O. mykiss).
    The proposed incidental take permits would also authorize the take 
of the following federally threatened species incidental to otherwise 
lawful activities: Puget Sound chinook salmon (Oncorhynchus 
tshawytscha), Lower Columbia River chinook salmon (O. tshawytscha), 
Upper Willamette River chinook salmon (O. tshawytscha), Snake River 
spring/summer chinook salmon (O. tshawytscha), Snake River fall chinook 
salmon (O. tshawytscha), Columbia River chum salmon (O. keta), Hood 
Canal summer-run chum salmon

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(O. keta), Ozette Lake sockeye salmon (O. nerka), Lower Columbia River 
steelhead (O. mykiss), Middle Columbia River steelhead (O. mykiss), 
Snake River steelhead (O. mykiss), Upper Willamette River steelhead (O. 
mykiss), and bull trout (Salvelinus confluentus) the Columbia River 
Distinct Population Segment and the Coastal-Puget Sound Distinct 
Population Segment.
    The state is also seeking incidental take permit coverage for 54 
currently unlisted fish species (including anadromous and resident 
fish) and seven currently unlisted stream-associated amphibian species 
under specific provisions of the Permits, should these species be 
listed in the future.
    The proposed duration of the incidental take permits and 
conservation plan would be 50 years, though many aspects of the plan's 
conservation strategy are intended to benefit aquatic species and their 
habitat long into the future.
    Rules adopted under section 4(d) of the ESA are limited by the 
statute to threatened species. NMFS has issued a 4(d) rule for most 
threatened salmon that occur in Washington State (50 CFR 223.203, July 
10, 2000). Subsection (b)13 (Limit 13) of the rule pertains to forest 
practices in the State of Washington and provides a limit from take 
prohibitions pursuant to section 9 of the ESA for certain threatened 
salmonids provided that NMFS finds after public review and comment that 
certain specified requirements are met by the State of Washington. 
These requirements include, in part, that actions comply with forest 
practice regulations adopted and implemented by the Washington Forest 
Practices Board and that they are determined by NMFS to be at least as 
protective of habitat functions as the regulatory elements of the 
Forests and Fish Report. The FWS does not have a similar 4(d) rule for 
the federally threatened bull trout that applies to forest practices in 
the State of Washington. Since there is no comparable ESA 4(d) rule for 
bull trout, the FWS would have to develop a 4(d) rule to exempt take of 
bull trout. If this alternative was chosen as the preferred 
alternative, FWS would initiate this action. Any 4(d) rule proposed by 
FWS would include a public review and comment period prior to a final 
rule being established.
    The Services formally initiated an environmental review of the 
project through publication of a Notice of Intent to prepare an 
Environmental Impact Statement in the Federal Register on March 17, 
2003 (68 FR 12676). That notice also announced a public scoping period 
during which interested parties were invited to provide written 
comments expressing their issues or concerns relating to the proposal 
and to attend one of four public scoping meetings held throughout the 
    Based on public scoping comments, the Services have prepared a DEIS 
to analyze the effects of alternatives on the human environment. 
Implementation of the state's conservation plan, including issuance of 
associated incidental take permits from the Services for endangered, 
threatened and covered species (should they become listed) is 
Alternative 2 in the DEIS. Three other alternatives are analyzed in the 
DEIS including: Alternative 1, no action, in that neither incidental 
take permits nor section 4(d) limits on the application of the 
prohibition against take would be issued to the state; Alternative 3, 
amend and implement the conservation plan and issue section 4(d) limits 
on the application of the prohibition against take through the NMFS 
Limit 13 only for those threatened species identified in the NMFS 4(d) 
rule, and through a new rule that would be developed by FWS for 
specific threatened species only; and Alternative 4, incidental take 
permits would be issued based on more restrictive forest practices 
rules that would be incorporated into the state's proposed conservation 
    This notice is provided pursuant to the ESA and NEPA regulations. 
The Services will evaluate the applications, associated documents, and 
comments submitted thereon to determine whether the applications meet 
the requirements of the ESA and NEPA.
    The Services will revise the DEIS in a Final Environmental Impact 
Statement. The Services' decisions whether to issue incidental take 
permits or limits on the application of the prohibition against take 
will be made upon completion of the Final Environmental Impact 
Statement and the associated Record of Decision.

    Dated: October 28, 2004.
Dave Wesley,
Deputy Regional Director, Fish and Wildlife Service, Region 1, 
Portland, Oregon.

    Dated: February 4, 2005.
Phil Williams,
Chief, Endangered Species Division, Office of Protected Resources, 
National Marine Fisheries Service.
[FR Doc. 05-2691 Filed 2-10-05; 8:45 am]