[Federal Register: February 11, 2005 (Volume 70, Number 28)] [Notices] [Page 7245-7247] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr11fe05-40] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration DEPARTMENT OF THE INTERIOR 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 comment. ----------------------------------------------------------------------- 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 [[Page 7246]] 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: ForestPracticesHCP.nwr@noaa.gov. 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 libraries. Background 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 [[Page 7247]] (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 State. 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 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 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]