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A Citizen's Guide to the 4(d) Rule for Threatened Salmon and Steelhead on the West Coast
National Marine Fisheries Service Table of Contents
The 13 Limits
Regular Evaluation of Limits on Take Prohibitions Other ESA Mechanisms How NMFS Decides What May Be Included In a 4(d) Rule Limit
Additional Information on the Final 4(d) Rule
In June 2000, the National Marine Fisheries Service (NMFS) adopted a rule prohibiting the "take" of 14 groups of salmon and steelhead listed as threatened under the Endangered Species Act (ESA). NMFS adopted the take rule under section 4(d) of the ESA. This rule prohibits anyone from taking a listed salmon or steelhead, except in cases where the take is associated with an approved program. The 4(d) rule approves some specific existing state and local programs, and create a means for NMFS to approve additional programs if they meet certain standards set out in the rule. State and local governments, tribes and others throughout the Northwest have stepped forward and assumed leadership roles in saving these species. Efforts include the Oregon Plan for Salmon and Watersheds, the State of Washington's Extinction is Not an Option Plan, Metro's Functional Plan, the Puget Sound Tri-County Initiative, the Lower Columbia Fish Recovery Board, the Eugene, Oregon-area Metro ESA Coordinating Team, and the Willamette Restoration Initiative. NMFS believes it is these local efforts that will ultimately save the salmon. A central goal of this 4(d) rule is to encourage such state and local efforts by providing the means for NMFS to approve local efforts and limit liability under the ESA. This Citizen's Guide to the 4(d) Rule introduces and explains the rule. It complements the final rule published in the Federal Register in June of 2000 by providing a more user-friendly description of why the rule is needed, what it contains, how it will affect citizens, and how to get more information. This Guide is not binding Federal language or regulation. Individuals should refer to the Federal register notice for the regulatory language governing activities under the rule. In 1994, in response to growing concerns about salmon health on the West Coast, NMFS began the most thorough scientific review of Pacific salmon ever undertaken. The review looked at salmon and steelhead from desert-like areas in California to coastal rain forests, and from the high mountains of central Idaho to lowland basins within sight of the Pacific Ocean. The review identified 52 distinct populations, known as Evolutionarily Significant Units (or ESUs) of Pacific salmon in Oregon, Washington, Idaho, and California. Of these populations, 26 have been listed as threatened or endangered under the ESA and most others are in decline or at very low levels. These populations of salmon and steelhead are likely to become endangered species within the foreseeable future and their current threatened status cannot be explained by ocean cycles or other natural events. NMFS has concluded that these species are at risk of extinction primarily due to human activities. Salmon and steelhead populations have been depleted by over-fishing, past and ongoing habitat destruction, hydropower development, hatchery practices, degraded water quality and other causes.
A species is considered endangered when it is "in danger of extinction throughout all or a significant portion of its range" and threatened when it is "likely to become endangered within the foreseeable future throughout all or a significant portion of its range." Copies of these studies are available to the public and can be obtained by calling any of the NMFS offices listed at the end of this Guide, or one of our websites at www.nwr.noaa.gov or http://swr.nmfs.noaa.gov The ESA provides a variety of tools for saving species threatened with extinction. Under section 7 of the ESA, no Federal agency may fund, permit or carry out any activity that will jeopardize their continued existence. In many cases, this restriction on Federal activity is not enough by itself to recover threatened species. When the activities of state and local governments and private citizens harm listed species, section 4(d) of the ESA requires that harm be controlled so it does not lead to extinction. Section 4(d) requires NMFS to issue regulations deemed "necessary and advisable to provide for the conservation of the species." NMFS must establish protective rules for all species now listed as threatened under the ESA. These protective rules for threatened species may apply any or all of the ESA section 9 protections that automatically prohibit take of species listed as endangered. The rules need not prohibit all take. There may be an "exception" from the prohibitions on take so long as the take occurs as the result of a program that adequately protects the listed species and its habitat. In other words, the 4(d) rule can "limit" the situations to which the take prohibitions apply. Incorporating such "limits" into a 4(d) rule can be good for NMFS, state agencies, government entities, private citizens, and the fish. Activities carried out in accordance with 4(d) rule limits can help protect threatened species and their habitats while relieving state agencies, government entities, tribes and others from liability for take that results from those activities. By providing limitation from take liability, NMFS encourages governments and private citizens to adjust their programs and activities to be "salmon safe." NMFS anticipates that programs and activities included as a 4(d) rule limit will ultimately be incorporated into ESA Recovery Plans for listed salmon and steelhead. This rule protects 14 ESUs of salmon and steelhead in Idaho, Washington, Oregon, and California (depicted in the map on the following page). The rule follows the standard practice of prohibiting the killing or injuring of a threatened species (i.e. "take ") without specific written authorization; that is its principal function.
The rule applies to ocean and inland areas, and to any authority, agency, or private individual subject to U. S. jurisdiction. Activities or development not likely to kill or harm protected species will not be affected by the rule. The rule does not prohibit actions or programs--it prohibits illegal take. Activities that do not kill or injure protected salmon and steelhead do not require any special authorization. Limits can be thought of as "exceptions" to the take prohibitions. These limits represent programs or activities, or criteria for future programs or activities, for which NMFS will not apply the take prohibitions. This is because NMFS has determined that these programs or activities minimize impacts on threatened salmon and steelhead enough so that additional Federal protections are not needed to conserve the ESU. NMFS will monitor the activities that have been granted a limit to make certain there is no unexpected take or harm. The ESA makes it illegal for any person subject to the jurisdiction of the United States to take any species of fish or wildlife that is listed as endangered (ESA section 9[a][1]) without specific authorization. The final 4(d) rule puts in place the same take prohibitions for threatened salmon and steelhead, except for certain limits that apply to the activities specified in the rule. This prohibitions applies within the United States and its territorial waters as well as on the high seas.
The likelihood that an action will take a listed species must be evaluated on a case-by-case basis. NMFS has described the kinds of activities (e.g., blocking fish from reaching spawning and rearing areas, illegal fishing etc.), that are likely to injure or kill threatened salmon and steelhead in a "Take Guidance" section in the Federal Register Notice. This guidance is not regulatory. Rather it provides guidance on what actions are very likely to take threatened species and identifies where NMFS will focus its enforcement actions. This is not a list of prohibited activities. Based on available information, NMFS believes the categories of activities listed below are those activities that, as a general rule, are most likely to harm listed fish. NMFS wishes to emphasize at the outset that the potential for these activities to harm listed salmon and steelhead depends entirely upon the facts and circumstances of each case. The mere fact that an activity may fall within one of these categories does not automatically mean that it causes harm. These types of activities are, however, those most likely to cause harm and thereby violate this rule. NMFS' ESA enforcement will focus on these categories of activities.
This list is not exhaustive. It is simply intended to help people avoid violating the ESA and to encourage efforts to save the species. Determining whether take has actually occurred depends on the circumstances of a particular case. Many activities that may kill or injure salmon are regulated by state or Federal rules such as fill and removal authorities, National Pollutant Discharge Elimination System or other water quality permitting, pesticide use, and the like. For those types of activities, NMFS would not tend to focus enforcement efforts on those who operate in conformity with current permits. Rather, if the regulatory program does not provide adequate protection, NMFS will work with the responsible agency to make necessary changes in the program. For example, concentrations of pesticides may affect salmon behavior and reproduction. Current EPA label requirements were developed without information about some of these subtle but real impacts on aquatic species such as salmon. And they were not developed with the intent of protecting or recovering threatened salmon. Where new information indicates that label requirements do not adequately protect salmon, NMFS will work with EPA through the section 7 consultation process to develop more protective use restrictions, and thereby provide the best possible guidance to all users. Similarly, where water quality standards or state authorizations lead to pollution levels that may cause take, NMFS intends to work with the state water quality agencies and EPA to bring those standards (or permitting programs) to a point that does protect salmon. Those who believe their activities are likely to injure or kill salmon are encouraged to immediately change that activity to avoid take (or adequately limit any impacts on the species) and seek NMFS' authorization for incidental take under either (a) an ESA section 10 incidental take permit; (b) an ESA section 7 consultation; or (c) a limit on the take prohibitions provided in this rule. The public is encouraged to contact NMFS (see contact list) for help in determining whether circumstances at a particular location (involving these activities or any others) constitute a take in violation of the 4(d) rule. Take of listed fish resulting from actions in compliance with a permit issued by NMFS under section 10 of the ESA do not violate this rule. Section 10 permits may be issued for research activities, activities that enhance a species' survival, or to authorize incidental take occurring in the course of an otherwise lawful activity. In addition, NMFS consults--under section 7 of the ESA--on a broad range of activities conducted, funded, or authorized by Federal agencies. These include fish harvest, hatchery operations, silviculture activities, grazing, mining, road construction, dam construction and operation, fill material discharge, and stream channelization and diversion. Federally funded or approved activities for which ESA section 7 consultations have been completed will not constitute violations of this rule--provided the activities are conducted in accord with all reasonable and prudent measures and the terms and conditions stated in the incidental take statement. Evaluating Potential ESA Take Liability The June, 2000 4(d) rule's prohibitions on take applies to the activities of everyone--every state, city, and county government, every business, and every citizen. The Take Guidance provides information about what types of activities may be most likely to cause harm and thus violate the 4(d) rule. However, each activity and circumstance must be evaluated on a case by case basis to determine if it is likely to cause a take. After reviewing the take guidance, many governmental entities, businesses, and individuals may question how the 4(d) rule and its take guidance affects them. Any governmental entity, business or individual can use the following risk assessment evaluation steps:
There are many sources of information on improved best management practices to avoid take or harm and to reduce ESA liabilities. In addition, professional associations, state and Federal resource management agencies that provide technical information to landowners and others, watershed councils and non-governmental organization can be important sources of information about how to modify activities to avoid or reduce impacts on threatened salmon and steelhead. State, tribal, and local governments, stakeholder groups, and citizens across four states need to familiarize themselves with the guidance provided in the rule, assess the consequences of their individual authorities and activities, and make any necessary adjustments to protect the fish. After sufficient time to review the new rule, NMFS will hold a number of public forums in rural and metropolitan communities to engage interested parties in constructive discussion about salmon recovery. For these reasons, the 4(d) rule for chinook, coho, chum, and sockeye salmon will take effect 180 days after it is published in the Federal Register. Those in the range of threatened steelhead have had more notice that efforts to save the fish are needed, so the 4(d) rule for steelhead will take effect 60 days after publication. A 1997 interim 4(d) rule (published in 1997) remains in place for the Southern Oregon/Northern California Coast (SONCC) coho ESU. The SONCC 4(d) rule included several limitations based on adequately protective state programs in Oregon and provided a model for developing the three 4(d) rules proposed in January of 2000. The final 4(d) rule for 14 additional threatened ESUs does not affect this earlier rule. Useful Concepts for Understanding the Limits The final rule incorporates two scientific concepts NMFS will use when determining whether particular programs may receive limits on the take protections. The first applies primarily to harvest and hatchery activities, and is described in a scientific paper entitled "Viable Salmonid Populations and the Recovery of Evolutionarily Significant Units" (NMFS 2000). The Viable Salmonid Population (VSP) paper describes the importance of identifying individual populations within an ESU, and the importance of identifying abundance levels and other characteristics that may be considered "critical" (where abundance is so low the population requires special protections) or "viable" (where abundance is high enough the population may be considered healthy). Generally, programs and activities will receive a 4(d) limit only if they do not increase the risks to critical populations, and if they do not preclude populations from attaining or maintaining viability. The second concept applies to programs and activities that affect salmon habitat. For habitat, NMFS uses the concept of Proper Functioning Condition (PFC). Properly functioning habitat is habitat that provides for the biological requirements of the fish. PFC is defined in terms of the natural processes and functions that lead to habitat conditions that will meet the biological requirements of the fish. NMFS offers 4(d) limits only for those programs or activities that will not impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or will not retard the long-term progress of impaired habitat toward PFC. The concepts of VSP and PFC are described in more detail at the end of this guide. When the final 4(d) rule becomes effective, the take prohibitions will apply to actions carried out by state, tribal, and local governments and private parties that take listed salmon and steelhead, except take that is associated with those activities that come under one of the 4(d) limits and those already permitted under other sections of the ESA. The take prohibitions would be limited for the programs and activities identified in the 4(d) rule because NMFS has determined that they impacts on threatened fish sufficiently that additional Federal protections are not needed. The final rule describes two types of limits on the take prohibitions. One type includes specific programs NMFS has already reviewed and determined will minimize harm to threatened fish or contribute to their conservation. The other type includes general categories of programs that NMFS may evaluate in the future. For this second type of limit, the 4(d) rule sets out the standards NMFS will use when it reviews activities and programs for inclusion in the rule, how the public will be given notice in the Federal Register of the opportunity to review the program being submitted and, if the limit is determined to sufficiently conserve the listed species, how it will be approved by the Northwest or Southwest Regional Administrator, whichever is appropriate. NMFS has also established a process for periodically evaluating the limits, making recommendations for adjusting the programs, and alerting the public in cases when the limit would be withdrawn and take prohibitions re-applied.
NMFS is not requiring states, local governments or private parties to change their practices to conform to any of the take limits described in the final rule. The limits provide one way to be sure an activity or program does not risk violating the take prohibitions. Simply because a program is not within a limit does not mean that it automatically violates the ESA or the 4(d) rule. However, it does mean that any program or jurisdiction would risk ESA penalties if the activity in question takes a listed fish. By receiving a limit, governments and individuals receive assurance that their activities do not violate the take prohibitions and will not be subject to enforcement. Limit No. 1 - ESA Permits This limit recognizes that those holding permits under section 10 of the ESA (or receiving other exemptions under the ESA) are free of the take prohibitions so long as they act in accordance with the permit or applicable law. Land management activities associated with a habitat conservation plan and scientific research are examples of activities for which a section 10 permit may be issued. Limit No. 2 - Ongoing Scientific Research This final rule does not restrict ongoing scientific research that affects threatened ESUs for up to eight months (i.e., through February 2001) provided an application for a research or enhancement permit reaches the Assistant Administrator for Fisheries, NOAA, within 90 days after the rule is published. The take prohibitions will extend to these activities if the Assistant Administrator rejects an application as insufficient, if a permit is denied, or if six months have elapsed since the effective date of the final rule, whichever occurs earliest. It is in the interest of conservation to not disrupt ongoing research and conservation projects, some of which are of long duration. This limit on the take prohibitions ensures there will be no unnecessary disruption of those activities yet provides NMFS with the ability to halt the activity if it will have unacceptable impacts on a listed ESU. Limit No. 3 - Rescue and Salvage Actions This limit relieves certain agency and official personnel (or their designees) from the take prohibitions when they are acting to aid an injured or stranded fish or salvage a dead fish for scientific study. Each agency acting under this limit is to report the numbers of fish handled and their status on an annual basis. This limit on the take prohibitions will conserve the listed species by preserving life or furthering our understanding of the species' biology. Limit No. 4 - Fishery Management NMFS believes recreational, commercial, and tribal fisheries can be managed to protect salmon and steelhead listed under the ESA and allow them to recover. The 4(d) rule provides a way to permit the "take" of listed fish in fisheries. A fishery management agency can develop a Fisheries Management and Evaluation Plan (FMEP) and seek NMFS' approval for it. Some of the benefits of the FMEP approach are long-term management planning, more public involvement, less government paperwork, and more certainty that there will be fishing opportunities in the future. NMFS will use the same standard to evaluate FMEPs as those used for section 10 permits: the fisheries must not jeopardize listed salmon and steelhead, nor lessen the protection they receive. In the FMEPs, fisheries will be managed according to the listed fishes' status. This will be determined by using the concept of "Viable Salmonid Populations." Fisheries will be scaled to the degree of risk the listed fish face. When a listed population is at a "critically" low level, harvest impacts will be strictly controlled. Once a population achieves a "viable" level, fisheries could be less restrictive. An FMEP must address the specific criteria outlined in the 4(d) rule. An FMEP must (1) define its objectives and management area, (2) define the populations within the affected ESUs, (3) establish the populations' "critical" and "viable" threshold levels, (4) set escapement objectives or maximum harvest rates, (5) demonstrate that the fisheries will not jeopardize listed fish, (6) establish the monitoring and evaluation process to assess how the FMEP is working and set conditions for revising management, and (7) be consistent with tribal trust obligations. All of these criteria were developed to answer the following questions: Where and how should the fisheries occur? What are their impacts on listed fish? How can it be demonstrated that an FMEP conserves listed fish and allows their recovery? FMEPs are developed and approved in the following manner: A fish management agency, such as a state department of fish and wildlife, develops an FMEP that meets the 4(d) rule criteria. They send it to NMFS who then requests public review and comment. The public input is used to revise the FMEP, if necessary. Once the FMEP is deemed sufficient, NMFS writes a letter of approval to the agency that developed the FMEP. The FMEP is then implemented and the fisheries addressed in the FMEP will be covered under the ESA. NMFS then monitors and evaluates the FMEP to ensure that the listed fish are recovering. Limit No. 5 - Artificial Propagation NMFS believes hatcheries can be managed in a manner that conserves and recovers salmon and steelhead listed under the ESA. Therefore, the 4(d) rule provides a way to permit the "take" of listed fish for a variety of hatchery purposes. A state or Federal hatchery management agency can develop a Hatchery and Genetics Management Plan (HGMP) and seek NMFS' approval. Some of the benefits of the HGMP approach are long-term management planning, more public involvement, and less government paperwork. NMFS will use the same standard to evaluate HGMPs as those used for section 10 permits: the hatchery program must not jeopardize listed salmon and steelhead, nor lessen the protection they receive. In the HGMPs, hatcheries will be managed according to the listed fishes' status. This will be determined using the concept of "Viable Salmonid Populations." Hatchery activities will be scaled to the degree of risk the listed fish face. When a listed population is at a "critical" level, broodstock collection will be strictly controlled. Once a population achieves a "viable" level, broodstock collection could be less restrictive. An HGMP must address the specific criteria outlined in the 4(d) rule. An HGMP must (1) specify the goals and objectives for the hatchery program, (2) the donor population's "critical" and "viable" threshold levels, (3) prioritize broodstock collection programs in a manner that benefits listed fish, (4) specify the protocols that will be used for spawning and raising the fish in the hatchery, (5) determine the genetic and ecological effects arising from the hatchery program, (6) describe how the hatchery operation relates to fisheries management, (7) ensure that the hatchery facilities can adequately accommodate listed fish if they are collected for the program, (8) monitor and evaluate the HGMP to ensure that it accomplishes its objectives, and (9) be consistent with tribal trust obligations. HGMPs are developed and approved in the following manner: A fish management agency, such as a state department of fish and wildlife, develops an HGMP that meets the 4(d) rule criteria. They send it to NMFS who then requests public review and comment. The public input is used to revise the HGMP, if necessary. Once the HGMP is deemed sufficient, NMFS writes a letter of approval to the agency that developed the HGMP. The HGMP is then implemented and the hatchery program addressed in the FMEP will be covered under the ESA. NMFS then monitors and evaluates the HGMP to ensure that the listed fish are recovering. Limit No. 6 - Joint Tribal/State Plans Developed under the United States v. Washington or United States v. Oregon Settlement Processes Non-tribal salmonid management in the Puget Sound and Columbia River areas is profoundly influenced by the fishing rights of numerous Indian tribes and must be responsive to the court proceedings that interpret and define those tribal rights. Various orders of the United States v. Washington court, such as the Puget Sound Salmon Management Plan (originally approved by the court in 1977; recently amended in United States v. Washington, 626 F. Supp. 1405, 1527 (1985, W.D. Wash.)), mandate that many aspects of fishery management, including but not limited to harvest and artificial production actions, be jointly coordinated by the State of Washington and the Western Washington Treaty tribes. The State of Washington, affected tribes, other interests, and Federal agencies are all working toward an integrated set of management strategies and strictures that respond to the biological, legal, and practical realities of salmon management in Puget Sound. Similar principles apply in the Columbia River basin where the States of Oregon, Washington, and Idaho and five treaty tribes work within the framework and jurisdiction of United States v. Oregon. NMFS includes this limit on the take prohibitions to accommodate any resource management plan developed jointly by the States and the Tribes (joint plan) under the jurisdiction of United States v. Washington or United States v. Oregon. Such a plan would be developed and reviewed under the government-to-government processes outlined in the final 4(d) rule for Tribal Resource Management Plans. Before any joint plan receives a limit on the take prohibitions, the Secretary must, after taking into account any public comment on the plan, determine that it will not appreciably reduce the likelihood of the listed species' survival and recovery. The Secretary shall publish in the Federal Register notice of any determination regarding a joint plan; the notice will include a discussion of the biological analysis underlying the determination. NMFS will evaluate joint plans on a regular basis to determine if they sufficiently protect and conserve the listed fish. Limit No. 7 - Scientific Research In carrying out their responsibilities, state fishery management agencies in Washington, Oregon, Idaho, and California conduct or permit a wide range of scientific research activities on various fisheries. These include monitoring programs and other studies of the 14 ESUs affected by the final rule. In general, NMFS finds that such activities will help conserve the listed species by furthering our understanding of the species' status, risks, life history, and biological requirements, and that state biologists and cooperating agencies carefully consider the benefits and risks entailed in proposed research before approving or undertaking such projects. NMFS concludes it is not necessary and advisable to impose additional protections on such research by imposing of Federal take prohibitions, and NMFS will not apply take prohibitions to scientific research activities that have received written approval from NMFS' Northwest or Southwest Regional Administrator. Limit No. 8 - Habitat Restoration Limits on the Take Prohibitions Habitat restoration activities are likely to help conserve listed fish without incurring significant risks, and NMFS concludes it is not necessary and advisable to impose take prohibitions on those activities provided the activity is part of a watershed conservation plan. NMFS considers a "habitat restoration activity" to be an activity whose primary purpose is to restore natural aquatic or riparian habitat processes or conditions; it is an activity that would not be undertaken but for its restoration purpose. Projects planned and carried out based on at least a watershed-scale analysis and conservation plan and, where practicable, a sub-basin or basin-scale analysis and plan, are likely to be the most beneficial. NMFS strongly encourages those involved in watershed restoration to conduct assessments that identify the factors impairing watershed function, and to plan watershed restoration and conservation activities based on those assessments. Without the overview a watershed-level approach provides, habitat efforts are likely to focus on "fixes" that may prove short-lived (or even detrimental) because the underlying processes causing a particular problem may not be addressed. The final rule provides that take prohibitions will not apply to habitat restoration activities found to be part of, and conducted pursuant to, a watershed conservation plan that the state of Washington, Oregon, Idaho, or California has certified to be consistent with the state's watershed conservation plan guidelines. The state in which the activity occurs must certify in writing whether a watershed plan has been formulated in accordance with NMFS-approved state watershed conservation plan guidelines. NMFS will periodically review state Watershed Conservation Plan certifications to ensure that the Plans adhere to approved watershed conservation plan guidelines. For this limit to apply, NMFS must find that the state's watershed conservation plan guidelines generate plans that: (1) Take into account the proposed activities' potential direct, indirect, and cumulative impacts in terms of their effect on listed species and populations; (2) will not reduce the likelihood of either survival or recovery of listed species in the wild; (3) ensure that any taking will be incidental; (4) minimize and mitigate any adverse impacts; (5) put in place effective monitoring and adaptive management programs; (6) use the best available science and technology, including watershed analysis; (7) provide for public and scientific review and input; (8) include any measures that NMFS determines are necessary or appropriate; (9) include provisions that clearly identify those activities that are part of plan implementation; and (10) control risk to listed species by ensuring that the plan components are funded and implemented. Before approving watershed conservation plan guidelines, NMFS will publish notification in the Federal Register announcing the availability of the proposed guidelines for public review and comment. Such an announcement will provide for a comment period of no less than 30 days. The proposed 4(d) rules identified interim provisions for habitat restoration activity categories to which the take prohibitions would not be applied for two years while watershed conservation plans were being developed. Based on the misunderstandings generated by that proposal, the interim provisions were dropped from the final rule. NMFS strongly encourages jurisdictions, entities, and citizens to use the habitat restoration guidelines and technical manuals listed below as readily available techniques to reduce the risks of harming or injuring the listed stocks. Applicable state guidance includes:
These documents are available through the NMFS web page or directly from the relevant agencies. Limit No. 9 - Water Diversion Screening Operating water diversions without adequate screening is a widely recognized cause of mortality among salmon and steelhead. Juveniles may be sucked or attracted into diversion ditches where they later die from a variety of causes, including stranding. Adult and juvenile migration may be blocked by diversion structures such as push-up dams. Juveniles are often injured and killed when caught in pumping facilities or forced against screens. State laws and Federal programs have long recognized these problems in varying ways, and encouraged or required adequate screening of diversion ditches and structures. Nonetheless, large numbers of diversions are not adequately screened and remain a threat, particularly to juvenile fish. Eliminating that source of injury or death is vital to conserving listed stocks. The final rule encourages all diverters to move quickly to provide adequate screening or other protections for their diversions. The rule does not apply take prohibitions provided that NMFS' engineering staff--or any resource agency or tribal representative NMFS designates as an authorized officer--has agreed in writing that the diversion facility is screened, maintained, and operated in compliance with NMFS' Juvenile Fish Screening Criteria (NMFS 1996) or, in California, in compliance with NMFS Southwest Region's Fish Screening Criteria for Anadromous Salmonids (NMFS 1997) or any subsequent revision. If a diversion is screened, operated, and maintained in a manner consistent with those criteria, adequate safeguards will be in place and no additional Federal protection is necessary or advisable for conserving listed fish. The final rule also provides that NMFS or its authorized officer may review and approve
for a take limit a proposed juvenile fish screen design and construction plan. The plan
must describe interim operation measures that will avoid taking threatened fish. Limit No. 10 - Routine Road Maintenance NMFS does not find it necessary or advisable to apply take prohibitions to routine road maintenance activities provided that: (1) The activity constitutes routine road maintenance conducted by Oregon Department of Transportation (ODOT) employees or agents that complies with ODOT's Transportation Maintenance Management System Water Quality and Habitat Guide (July, 1999); or (2) it is conducted by employees or agents of a state, county, city, or port under a program that complies substantially with that contained in the ODOT Guide and has been determined to meet or exceed the protections provided by the ODOT Guide; or (3) by employees or agents of a state, county, city, or port that complies with a routine road maintenance program that maintains or attains proper functioning condition (PFC). The ODOT's maintenance and environmental staff have worked with NMFS in developing a routine road maintenance program that works well within the mandates of the ESA and the Clean Water Act, while carrying out the agency's fundamental mission to provide a safe and effective transportation system. That work has resulted in a program that greatly improves protections for listed fish that might be affected by a range of routine maintenance activities by minimizing the activities' impacts on streams. For a state, city, county or port program that is equivalent to the ODOT program (or any of its amendments) to receive a limit it must get written approval from the NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. Any jurisdiction desiring its routine road maintenance activities to be within this limit must first commit in writing to apply management practices that provide protection equivalent to or better than those provided by the ODOT Guide. Limit No. 11 - Portland Parks Integrated Pest Management The City of Portland, Oregon, Parks and Recreation Department (PP&R) operates a diverse system of city parks representing a full spectrum of urban habitat from intensively managed recreation, sport, golf, and garden sites to largely natural, unmanaged parks, including the several thousand acre, wooded, Forest Park. The PP&R has been operating and refining an integrated pest management program for 10 years, with a goal of reducing its use of pesticides. The program's "decision tree" places first priority on preventing pests (weeds, insects, disease) through policy, planning, and avoidance measures (design and plant selection). Cultural and mechanical practices, trapping, and biological controls form the second priority. The use of biological products and, finally, chemical products, is to be considered last. The overall program affects only a small proportion of the land base and waterways in Portland, and serves to minimize any impacts on listed fish from chemical applications associated with that specific, limited land base. NMFS believes it would help conserve listed fish if jurisdictions would broadly adopt a similar approach to eliminating and limiting chemical use in their parks and in other areas. After carefully analyzing PP&R's integrated program for pest management, NMFS concludes that it addresses potential impacts and provides adequate protection for listed fish with respect to the limited use the program may make of the listed chemicals. NMFS does not find it necessary or advisable to apply additional Federal protections in the form of take prohibitions to PP&R activities conducted under the Pest Management Program. Take prohibitions would not meaningfully increase the level of protection the listed fish receive. Confining the limit on take prohibitions to a specified list of chemicals does not mean NMFS has determined that other chemicals PP&R employs will necessarily harm salmon and steelhead. NMFS intends to continue working with PP&R on the use of any other herbicide or pesticide. The PP&R program includes a variety of monitoring commitments and a yearly assessment schedule. If, at any time, monitoring information, new scientific studies, or new techniques cause PP&R to amend its program or if PP&R and NMFS wish to change the list of chemicals receiving limits on take prohibitions, PP&R must provide NMFS with a copy of the proposed change(s) for review. NMFS will publish notification in the Federal Register requesting public comment on the proposed changes. The comment period will be no less than 30 days; at its conclusion, NMFS will make a final determination on whether the changes will conserve listed salmon and steelhead. Limit No. 12 - Municipal, Residential, Commercial and Industrial Development and Redevelopment (MRCI) As a general matter, MRCI development (and redevelopment) have a significant potential to degrade habitat and injure or kill salmon and steelhead in a variety of ways. With appropriate safeguards, MRCI development can be specifically tailored to minimize impacts on listed fish to the extent that additional Federal protections would not be needed to conserve the listed ESU. Through the final rule, NMFS identifies a mechanism whereby cities, counties, and regional governments can ensure that MRCI development and redevelopment authorized within those areas are consistent with ESA requirements. Developers and their authorizing jurisdictions alike would benefit from the assurance that their actions conserve listed salmon and steelhead. One example of an authorizing entity working toward the sort of plan envisioned in this limit is found in the fact that urban development in the Portland, Oregon metropolitan area may not occur outside of an adopted urban growth boundary (UGB). Metro, the regional governing body, is in the process of bringing some large areas currently designated as urban reserve areas into the UGB. Before development may commence in these newly included areas, the jurisdiction within which the area lies must prepare and adopt comprehensive plan amendments for urban reserve areas consistent with all provisions of the Metro Urban Growth Management Functional Plan. The amendments must show what development will be allowed and the conditions to be placed upon development. NMFS will not apply take prohibitions to (1) MRCI development or redevelopment governed by and conducted in accordance with city, county, or regional government ordinances or plans that NMFS has found to adequately protect listed species; or (2) once NMFS has determined that Metro's Functional Plan is adequately protective, activities conducted under Metro's jurisdiction that are pursuant to ordinances that Metro has found comply with its Urban Growth Management Functional Plan. NMFS must agree in writing that the MRCI development ordinances and plans, including the Functional Plan, ensure that the plans and the development activities complying with them will conserve listed salmon and steelhead. NMFS will individually apply the following 12 evaluation considerations when determining whether MRCI development ordinances or plans adequately conserve listed fish:
NMFS' determinations are significantly influenced by science indicating that essential habitat functions are affected to varying (but significant) degrees by streamside activities conducted within a distance equal to the height of the tallest tree that can grow on that site (known as the site potential tree height). The distance is measured not from the stream itself, but from the edge of the area within which a stream naturally migrates back and forth over time (the channel migration zone). When the scope of an activity includes modifying a riparian site that has existing, non-native vegetation, it may be important to restore native vegetation on the site in order to recover the essential habitat functions discussed above.
The Fish and Forest Report, cited elsewhere in this guidance, includes a detailed description of the types of channel migration zones found in most geomorphic settings. Further, the Washington State Forest Practices Board has published its Standard Method for Measuring Physical Parameters of Streams and Channel Migration Zones (March, 2000). Though it is designed for the forested environment, NMFS finds the document a useful aid in determining channel migration zones in any setting. NMFS concludes that development governed by ordinances or plans that fulfill the listed considerations will address the potential negative impacts on salmon and steelhead associated with development and redevelopment. In such circumstances adequate safeguards will be in place that NMFS does not find it necessary or advisable to impose additional Federal protections through the take prohibitions. Limit No. 13 - Forest Management in Washington In the State of Washington, NMFS has worked with timber industry representatives, tribes, state and Federal agencies, and various interest groups for many months. The purpose of these discussions was to develop a set of forest practices that could be included in Washington Governor Locke's salmon recovery plan. The product of those discussions is the April 29, 1999, Forests and Fish Report (FFR) to Governor Locke. It provides important improvements in forest practice regulation which, if approved by the Washington Forest Practices Board in a form at least as protective as it is laid out in the FFR, will substantially protect and conserve listed fish in that state. The FFR also mandates that all existing forest roads be inventoried for their potential to affect salmon and steelhead and that all needed improvements be completed within 15 years. The impacts that inadequately sited, constructed, or maintained forest roads have on salmonid habitat are well-documented. This feature alone will help a great deal in conserving listed ESUs in Washington. After carefully considering the above features--as well as others described in greater detail below--NMFS has determined it is not necessary to apply take prohibitions to non-Federal forest management activities conducted in the State of Washington. These activities may go forward provided that: (1) The action complies with forest practice regulations the Washington Forest Practices Board has adopted and implemented and that NMFS has found to protect habitat functions at least as well as the regulatory elements of the FFR; and (2) the activity also implements all non-regulatory elements of the FFR. It should also be noted that actions taken under alternative plans may be included under this limit provided the Washington Department of Natural Resources (WDNR) finds the alternate plans protect physical and biological processes at least as well as the state forest practices rules and that NMFS, or any resource agency or tribe NMFS designates, has the opportunity to review each alternate plan at every stage of its development and implementation. Given these conditions, NMFS concludes that the FFR package conserves salmon and their habitat well enough that it is neither necessary nor advisable to impose take prohibitions. NMFS believes that to conserve listed fish, it is important to rapidly adopt and implement improved forest practice regulations such as those found in the FFR. NMFS will provide an opportunity for the public to review and comment on all regulations developed to implement the FFR before making any determinations about how well they conserve listed fish. Although NMFS will continue working with Washington (and other states) on broadening this limit, at this time NMFS lacks information to determine that pesticide provisions in the FFR package, sufficiently protect and conserve listed fish. Therefore, this limit does not extend to the use of herbicides, pesticides, or fungicides. Elements of the FFR that protect and conserve listed salmon and steelhead are summarized below:
Regular Evaluation of Limits on Take Prohibitions In determining that it is neither necessary nor advisable to impose take prohibitions on certain programs or activities described in the final rule, NMFS is mindful that new information may require that conclusion to be reevaluated at some future point. NMFS will evaluate all of the limits on the take prohibitions described in the final rule on a regular basis to determine the program's effectiveness in protecting and conserving the listed fish. If the program is not sufficiently protective, NMFS will identify ways in which it needs to be altered or strengthened. Changes may be identified if the program does not protect desired habitat functions or, even if the program supports the originally targeted habitat characteristics and functions, the habitat does not uphold population productivity levels needed to conserve the ESU. If any jurisdiction conducting activities that fall under a given limit does not make changes to respond adequately to the new information in the shortest amount of time feasible--and in no case taking more than one year--NMFS will publish notification in the Federal Register announcing its intention to withdraw the limit and apply the take prohibitions to the program. Such an announcement would provide a comment period of at least 30 days, after which NMFS would make a final determination whether to subject the activities to the ESA section 9(a)(1) take prohibitions. Section 10 of the ESA provides another mechanism for NMFS to permit take when it is the incidental result of carrying out an otherwise lawful activity. Applicants for an Incidental Take Permit must submit a Conservation Plan (CP) that identifies (a) the impacts expected from any take associated with activities covered by the plan, and (b) the steps that will be taken to monitor, minimize, and mitigate those impacts. For more information on CPs, see the publication entitled "Habitat Conservation Plans and the Incidental Take Permitting Process," available on the U.S. Fish and Wildlife Service web site, at http://endangered.fws.gov/hcp/index.html, or speak with one of the NMFS contact people listed below. Section 7 of the ESA requires that Federal agencies consult with NMFS on activities they authorize, fund, or carry out to ensure they are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of their critical habitat. This includes Federally funded projects such as road construction, stormwater management, rural and urban development, and many other activities conducted, permitted, or funded by Federal agencies. How NMFS Decides What May Be Included In a 4(d) Rule Limit Whether take prohibitions or other protective regulations are necessary and advisable depends largely upon the biological status of the species and the potential impacts of various activities on it. If programs contribute to conserving the species or adequately limit the impacts on the species, NMFS may find it is not necessary or advisable to impose the Federal take prohibitions. NMFS expects to continue to work with various entities after the final rule is published, and we will continue to incorporate other conservation efforts in future amendments or through other ESA mechanisms. In assessing the impacts of a proposed action or program on a species' freshwater or estuarine habitat, NMFS considers the following factors:
The limits in the current rule provide examples of how activities that may harm salmon and steelhead can be adequately controlled to minimize impacts and contribute to the conservation of salmon and steelhead. All development activities need adequate funding and legal mechanisms for implementing, monitoring, maintenance, enforcement, and reporting in order to ensure that they comply with approved policies, ordinances, and permitting procedures. NMFS expects that programs proposed for a limit will be sufficiently described, guided, or governed by an applicable authority (other than just the ESA itself). These authorities could include state laws, county regulations, metropolitan master plans, local ordinances, official operating manuals, or other regulating mechanisms. In order to qualify for a limit, these mechanisms and the entities implementing them must provide a high degree of assurance that covered activities are being conducted in compliance with the specifications NMFS has analyzed and approved. To be approved for a limit from ESA take prohibitions, a program must conserve salmon and meet their biological requirements. This criterion is the same for any program. These species span the entire West Coast, from coastal rainforests to arid inland areas to high mountain regions nearly a thousand miles from the ocean. Specific requirements will differ from place to place. Some jurisdictions have asked for NMFS' help in learning how to avoid or limit adverse impacts on these species. In response, we have created this Guide and amended the final rule to make clear what must be done to protect and conserve listed fish. Submitting a Program for 4(d) Limit Any activity or program seeking a limit under a 4(d) rule should contain the following features.
The table below identifies the appropriate division and individual staff member at NMFS to contact regarding inquiries about initiating the process to receive a 4(d) limit or to identify other ESA permitting options:
Additional Information on the Final 4(d) Rule Please visit the NMFS Northwest Region Web Site at http://www.nwr.noaa.gov or the Southwest Region Web Site http://swr.nmfs.noaa.gov for additional information on the final 4(d) rule for salmon and steelhead. The sites contain the Federal Register notice, fact sheets, maps of threatened salmon and steelhead ESUs, press releases, copies of question and answer fact sheets, and documents referenced in the rule. The sites also contain a great deal of information on listed species in general: Federal Register notices, species maps, status reviews, fact sheets, and more. In addition, the following NMFS staff members can provide information on the final rule.
Effective Dates of Final 4(d) Rule
Finding Your Way Around the 4(d) Rule The proposed 4(d) rule included a preamble in which NMFS provided technical guidance, descriptions of the scientific principles upon which the limits were based, and descriptions of the limits' background and content. The proposed regulatory language was in a separate Code of Federal Regulation (CFR) section. The final 4(d) rule for salmon and steelhead is divided into two sections--the preamble and the CFR language. The preamble includes the following sections:
The last section of the final rule includes the regulatory language that applies the section 9 take prohibitions to the 14 threatened ESUs listed below and creates 13 limits on those prohibitions. The regulations section describes each limit.
Technical Issues: Aids for Understanding the 13 Limits in the 4(d) Rule NMFS uses the Viable Salmonid Population (VSP) concept primarily in evaluating hatchery and harvest activities. NMFS defines populations following Ricker's (1972) definition of a "stock." Thus, a population is a group of fish of the same species spawning in a particular lake or stream (or portion thereof) at a particular season which to a substantial degree does not interbreed with fish from any other group spawning in a different place or in the same place at a different season. This definition is widely accepted and applied in the field of fishery management. An independent population is an aggregation of one or more local breeding units that are closely linked by exchange of individuals among themselves, but are sufficiently isolated from other independent populations that exchanges of individuals among populations do not appreciably affect the population dynamics or extinction risk of the populations over a 100-year time frame. Such populations are generally smaller than their entire ESU, and they generally inhabit geographic ranges on the scale of whole river basins or major sub-basins that are relatively free of outside migration. For several reasons, NMFS believes it important to identify population units within established ESUs and individually evaluate their extinction risk. First, many of the biological processes that can drive a species to extinction operate at the population level, so it is appropriate to manage at that scale. In addition, by identifying and assessing impacts at the population level, managers can gain a better understanding of the important biological diversity contained within each ESU--a factor considered in NMFS' ESU policy (Waples 1991). Further, given an ESU's scale and complexity, it is typically a more practical undertaking to assess impacts at the population level. Finally, assessing impacts at the population level helps ensure that listed salmon and steelhead are treated consistently across a diverse geographic and jurisdictional range. NMFS will use four primary biological parameters to evaluate population status: (1) Abundance, (2) population growth rate, (3) population spatial structure, and (4) diversity. The relevance of these parameters to salmonid population status is discussed in a variety of scientific documents (e.g., Nehlsen et al. 1991; Burgman et al. 1993; Huntington et al. 1996; Caughley and Gunn 1996; Myers et al.,1998). Population abundance is important to evaluate because smaller populations experience relatively greater genetic, environmental, and demographic risks. Genetic risks associated with low population size include inbreeding depression, harmful mutation accumulation, and loss of genetic diversity. Demographic risks associated with low population size include random effects associated with environmental events. Population productivity may be thought of as the population's ability to increase or maintain its abundance. It is important to assess productivity because negative trends in productivity over sustained periods may lead to the genetic and demographic impacts associated with small population sizes. Population spatial structure reflects the number, size, and distribution of habitat patches and the condition of the migration corridors that provide linkages among these patches. Population structure affects demographic processes and extinction risk in ways that may not be readily apparent from studies of abundance and population growth rate. In addition, spatial structure affects evolutionary processes and may affect a population's ability to respond to environmental changes or stochastic events. Population diversity is important because it helps buffer a species against short-term environmental change and stochastic events. Population diversity may be assessed by examining life history traits such as age, and run and spawn timing distributions. Also, DNA analysis may provide an indication of diversity. In applying the concepts discussed here to harvest and hatchery actions, NMFS relies on two functional thresholds of population status: (1) Critical population threshold, and (2) viable population threshold. The critical population threshold refers to a minimal functional level below which a population's risk of extinction increases exponentially in response to any additional genetic or demographic risks. The viable population threshold refers to a condition where the population is self-sustaining and not at risk of becoming endangered in the foreseeable future. This threshold reflects the desired condition for individual populations and encompasses their contribution to recovering the ESU as a whole. Proposed actions must not preclude populations from attaining this condition. The final rule limits the take prohibitions for certain land and water management activities that NMFS has determined will conserve listed salmonids' habitat even though they may incidentally take individual listed fish. To make these determinations, NMFS evaluated whether the activities would allow properly functioning habitat condition to be attained and persist. The NMFS defines properly functioning condition (PFC) as the sustained presence of natural habitat-forming processes (e.g., hydraulic runoff, bedload transport, channel migration, riparian vegetation succession) that are necessary for the long-term survival and recovery of the species (The Habitat Approach, NMFS, 1999). Thus, PFC constitutes a species' habitat-based biological requirements--the essential physical features that support spawning, incubation, rearing, feeding, sheltering, migration, and other behaviors. Such features include adequate instream flow, appropriate water temperature, loose gravel for spawning, unimpeded fish passage, deep pools, and abundant large tree trunks and root wads. There is more than one scientifically credible analytical framework for determining an activity's effects. However, NMFS has developed a default analytical method (Making Endangered Species Act Determinations of Effect for Individual or Grouped Actions at the Watershed Scale, NMFS, 1996). It is often referred to as the "Matrix of Pathways and Indicators," or MPI. In the MPI framework, the pathways for determining the effect of an action are represented as six conceptual groupings (e.g., water quality, channel condition) of 18 habitat condition indicators (e.g., temperature, width/depth ratio). Indicator criteria (mostly numeric, though some are narrative) are provided for three levels of environmental baseline condition: properly functioning, at risk, and not properly functioning. The effect of the action upon each indicator is classified by whether it will restore, maintain, or degrade the indicator. Although the indicators used to assess habitat condition may entail instantaneous measurements, they are chosen, using the best available science, to detect the health of underlying processes, not static characteristics. "Best available science" advances through time, thus allowing PFC indicators to be refined, new threats to be assessed, and species status and trends to be better understood. Aquatic habitats are inherently dynamic, and the PFC concept recognizes that natural patterns of habitat disturbance will continue to occur. Floods, landslides, windstorms, and fires result in spatial and temporal variability in habitat characteristics, as do human activities. Indicators of PFC vary between different landscapes based on unique physiographic and geologic features. For example, aquatic habitats on timberlands in glacial mountain valleys are controlled by natural processes operating at different scales and rates than are habitats on low-elevation coastal rivers. The MPI provides a consistent but geographically adaptable framework for making effect determinations. The pathways and indicators, as well as the ranges of their associated criteria, are amenable to alteration through the process of watershed analysis. Regardless of the analytical method used, if a proposed action is likely to impair properly functioning habitat, appreciably reduce the functioning of already impaired habitat, or retard the long-term progress of impaired habitat toward PFC, it cannot be found to be consistent with the conservation of the species. If a program preserves existing habitat function levels and allows natural progression towards PFC where habitat is impaired, NMFS may determine that it qualifies for a limit on the take prohibitions. The NMFS has added language to the limits for road maintenance, pesticide management, municipal, residential, commercial and industrial (MRCI) development, and forestry that defines PFC and identifies how NMFS will evaluate programs with regard to meeting this biological standard. Specific criteria for applying this conservation standard are listed in each habitat-related limit. The scope of any given activity is important to NMFS' effects analysis. The scope of the activity may be such that only a portion of the habitat forming processes in a watershed are affected by it. For NMFS to find that an activity is consistent with conserving listed fish, only the effects on habitat functions that are within the scope of that activity will be evaluated. For example, an integrated pest management program may affect habitat forming processes related to clean water, but have no effect on physical barriers that prevent fish from gaining access to a stream. 09/12/07 | ||||||||||||||||||||||||||||||||||||||||||||||
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