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.

SUPPLEMENTARY INFORMATION:

Background

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 60727).

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 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 elements.

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 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.