[Federal Register: January 27, 2006 (Volume 71, Number 18)]
[Page 4609-4611]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service


National Oceanic and Atmospheric Administration

[I.D. 122205B]

Notice of Availability of a Final Environmental Impact Statement 
and Final Habitat Conservation Plan

AGENCIES: Fish and Wildlife Service (FWS), Interior; National Marine 
Fisheries Service (NMFS), National Oceanic and Atmospheric 
Administration (NOAA), Commerce.

ACTION: Notice of availability of final environmental impact statement.


SUMMARY: The U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service (Services) announce the availability for public 
review of a final Environmental Impact Statement (EIS), final Habitat 
Conservation Plan (HCP), and final Implementing Agreement (IA), related 
to an application by the State of Washington for Endangered Species Act 
(ESA) Incidental Take Permits (ITPs). The final documents reflect 
changes made to the draft documents resulting from comments received 
during the 90-day public comment period. Responses to comments received 
from the public are included in the EIS. This notice provides an 
opportunity for the public to review the final documents and responses 
to public comments. The EIS addresses the proposed issuance of ITPs by 
both Services under the ESA, to the Washington Department of Natural 
Resources, on behalf of the State of Washington (State), for forest 
practices activities conducted according to the Washington Forest 
Practices Rules (forest practices). The proposed ITPs would authorize 
incidental take of aquatic species (16 listed fish species, 54 unlisted 
fish species, 7 unlisted amphibian species), by covered forest 
practices implemented under the forest practices rules. The EIS also 
addresses a proposed limit to the ESA section 9 prohibition against 
take of listed species under the ESA, such that the prohibition would 
not apply to forest practices regulated by the State of Washington on 
non-Federal and non-tribal lands.

DATES: Consistent with 40 CFR 1506.10, the Services will not make a 
decision on the proposed action until at least February 27, 2006.

ADDRESSES: Send comments to Sally Butts, Project Manager, FWS, 510 
Desmond Drive SE, Suite 102, Lacey, WA 98503, facsimile (360)753-9518; 
or Laura Hamilton, Project Manager, NMFS, 510 Desmond Drive SE, Suite 
103, Lacey, WA 98503, facsimile (360)753-9517.

FOR FURTHER INFORMATION CONTACT: The final documents are posted on the 
Internet at: http://www.fws.gov/westwafwo/consplan/docs.html. For 

further information, or to receive the documents on CD ROM, please 
contact Sally Butts, Project Manager, FWS, (360)753-5832; or Laura 
Hamilton, Project Manager, NMFS, (360)753-5820.



    Section 9 of the ESA (16 U.S.C. 1538) and implementing regulations 
prohibit the ``taking'' of a species listed as endangered or 
threatened. The term take is defined under the ESA (16 U.S.C. 1532(19)) 
as to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or attempt to engage in any such conduct. ``Harm'' 
is defined by FWS regulation 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' 
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 
    Section 10 of the ESA and implementing regulations specify 
requirements for the issuance of ITPs to non-Federal landowners for the 
take of endangered and threatened species. Any proposed take must be 
incidental to otherwise lawful activities, not appreciably reduce the 
likelihood of the survival and recovery of the species in

[[Page 4610]]

the wild, and minimize and mitigate the impact of such take to the 
maximum extent practicable. In addition, an applicant must prepare a 
habitat conservation plan describing the impact that will likely result 
from such taking, the strategy for minimizing and mitigating the 
incidental take, the funding available to implement such steps, 
alternatives to such taking, and the reasons such alternatives are not 
being implemented. 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 National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et 
seq.) requires that Federal agencies conduct an environmental analysis 
of their proposed actions to determine if the actions may significantly 
affect the human environment. Under NEPA, a reasonable range of 
alternatives to a proposed project must be developed and considered in 
the Service's environmental review. Alternatives considered in an 
environmental analysis may include variations in the scope of covered 
activities; variations in the location, amount and type of 
conservation; variations in permit duration; or, a combination of these 
    As a result of the listing under the ESA 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 HCP.
    The Washington Department of Natural Resources, on behalf of the 
State of Washington, applied to the Services to: (1) obtain ITPs, 
pursuant to section 10(a)(1)(B) of the ESA for endangered, threatened, 
and unlisted 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 HCP 
and serve as documentation by the State that the HCP meets the 
requirements of section 4(d) as well as section 10. Each of these 
actions is represented as an alternative in the EIS.
    Forest practices activities proposed for coverage under the ITPs 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).
    Each of the alternatives described and analyzed in the EIS, covers 
approximately 9.1 million acres of non-Federal and non-Tribal forest 
land across the State of Washington, (i.e., covered lands defined in 
the EIS).
    The proposed ITPs, 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 ITPs 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 
(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 7 currently unlisted stream-associated amphibian species 
under specific provisions of the ITPs, should these species be listed 
in the future.
    The proposed duration of the ITPs and HCP 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 (65 FR 42421, 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 in order to fulfill the State's request. If this alternative 
were to be selected as the preferred alternative, FWS would consider 
rule-making to 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, as required under NEPA, 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

[[Page 4611]]

attend one of four public scoping meetings held throughout the State.
    Based on public scoping comments, the Services prepared a Draft 
Environmental Impact Statement (DEIS) to analyze the effects of 
alternatives on the human environment. The DEIS, draft HCP, and draft 
Implementation Agreement were made available to the public for a 90-day 
public comment period through a Notice of Availability in the Federal 
Register on February 11, 2005 (70 FR 7245). Comments received on the 
draft documents and responses to those comments are included in the 
EIS. Changes to the draft HCP and DEIS resulting from the comments 
received during the public comment period are reflected in the final 
HCP and EIS. Implementation of the State's HCP, including issuance of 
associated ITPs from the Services for endangered, threatened and 
covered species (should they become listed) is Alternative 2 in the 
EIS. Three other alternatives are analyzed in the EIS including: 
Alternative 1, no action, in that neither ITPs 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 for those threatened species identified in the existing NMFS 4(d) 
rule, and through a new rule that would be developed by FWS for the 
threatened bull trout; and Alternative 4, ITPs would be issued based on 
more restrictive forest practices rules that would be incorporated into 
the State's proposed conservation plan.
    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' decisions whether 
to issue ITPs or limits on the application of the prohibition against 
take will be made based on the EIS, the associated Record of Decision, 
and the Services' ESA decision documents.

    Dated: January 24, 2006.
David J. Wesley,
Deputy Regional Director, Fish and Wildlife Service, Region 1, 
Portland, Oregon.

    Dated: January 24, 2006.
Susan Pultz,
Acting Chief, Endangered Species Division, Office of Protected 
Resource, National Marine Fisheries Service.
[FR Doc. E6-1058 Filed 1-26-06; 8:45 am]