[Federal Register Volume 76, Number 176 (Monday, September 12, 2011)]
[Notices]
[Pages 56167-56171]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23266]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XA681
Marine Mammals; Pinniped Removal Authority
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments.
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SUMMARY: NMFS received an application under section 120 of the Marine
Mammal Protection Act (MMPA) from the states of Idaho, Oregon and
Washington (states) requesting authorization to intentionally take, by
lethal methods, individually identifiable California sea lions
(Zalophus californianus) that prey on Pacific salmon and steelhead
(Onchorhyncus spp.) listed as threatened or endangered under the
Endangered Species Act (ESA) in the Columbia River in Washington and
Oregon. This authorization is requested as part of a larger effort to
protect and recover listed salmonid stocks in the river. Pursuant to
the MMPA, NMFS has determined that the application contains sufficient
information to warrant convening a Pinniped-Fishery Interaction Task
Force (Task Force), which will occur after the close of the public
comment period. NMFS solicits comments on the application and other
relevant information related to pinniped predation at Bonneville Dam.
DATES: Comments and information must be received by October 12, 2011.
ADDRESSES: You may submit comments, identified by NOAA-NMFS-2011-0216,
by any of the following methods:
Electronic Submissions: Submit all electronic public comments via
the Federal eRulemaking Portal http://www.regulations.gov.
Mail: Comments on the application should be addressed to: Assistant
Regional Administrator, Protected Resources Division, NMFS, 1201 NE.
Lloyd Blvd., Suite 1100, Portland, OR 97232.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, or Adobe PDF file formats
only.
FOR FURTHER INFORMATION CONTACT: Garth Griffin, (503) 231-2005 or Brent
Norberg (206) 526-6550 or Shannon Bettridge, (301) 427-8402.
SUPPLEMENTARY INFORMATION:
Electronic Access
Further information is available via the Internet, including the
states' application, background information on pinniped predation on
listed salmonids, NMFS' past authorizations of lethal removal at
Bonneville Dam, descriptions of nonlethal efforts to address the
predation, NMFS' 2008 Final Environmental Assessment, and 2011
Supplemental Information Report to the 2008 Final Environmental
Assessment. The Internet address is: http://www.nwr.noaa.gov/Marine-Mammals/Seals-and-Sea-Lions/Sec-120-Authority.cfm
Statutory Authority
Section 120 of the MMPA (16 U.S.C. 1361, et seq.) allows the
Secretary of Commerce, acting through the Assistant Administrator for
Fisheries (Assistant Administrator), NMFS, to authorize the intentional
lethal taking of individually identifiable pinnipeds that are having a
significant negative impact on the decline or recovery of salmonids
that are listed as threatened or endangered under the ESA. The
authorization applies only to pinnipeds that are not listed under the
ESA, or designated as a depleted or strategic stock under the MMPA.
Pursuant to section 120(b) and (c), a state may request authorization
to lethally remove pinnipeds, and the Assistant Administrator is
required to: (1) Review the application to determine whether the
applicant has produced sufficient evidence to warrant establishing a
Task Force to address the situation described in the application; (2)
Establish the Task Force and publish a notice in the Federal Register
requesting public comment on the application if sufficient evidence has
been produced; (3) Consider any recommendations made by the Task Force
in making a determination whether to approve or deny the application;
and (4) If approved, immediately takes steps to implement the
intentional lethal taking, which shall be performed by Federal or state
agencies, or qualified individuals under contract to such agencies.
The MMPA requires the Task Force be composed of the following: (1)
NMFS/NOAA staff, (2) scientists who are knowledgeable about the
pinniped interaction, (3) representatives of affected conservation and
fishing community organizations, (4) treaty Indian tribes, (5) the
states, and (6) such other organizations as NMFS deems appropriate. The
Task Force reviews the application, other background information, the
factors contained in section 120(d), and public comments and, as
required by section 120, recommends to NMFS whether to approve or deny
the application. The Task Force is also required to submit with its
recommendation a description of the specific pinniped individual or
individuals; the proposed location, time, and method of such taking;
criteria for evaluating the success of the action; the duration of the
intentional lethal taking authority; and a suggestion for non-lethal
alternatives, if available and practicable, including a recommended
course of action.
Background
In December 2006, NMFS received an application co-signed by the
Washington Department of Fish and Wildlife, the Oregon Department of
Fish and Wildlife, and the Idaho Department of Fish and Game requesting
authorization to intentionally take, by lethal methods, individually
identifiable California sea lions in the Columbia River, which are
having a significant negative impact on the recovery of threatened and
endangered Pacific salmon and steelhead. After deeming the states'
application complete, NMFS published a notice in the Federal Register
seeking public comment on the application and also requested names of
potential members of the Task Force (see 72 FR 4239, January 30, 2007).
After the close of the public comment period, NMFS announced the
formation of the Task Force, which consisted of 18 members (72 FR
44833, August 9, 2007). The notice also identified a list of questions
that NMFS considered relevant to its section 120 decision-making
process. The Task Force completed and submitted its report to NMFS on
November 5, 2007. Of the 18
[[Page 56168]]
Task Force members, all recommended that non-lethal sea lion deterrence
measures continue. Seventeen of the eighteen members supported lethal
removal of California sea lions while one member from the Humane
Society of the United States (HSUS) opposed the states' application and
any lethal removal.
After receiving and reviewing the Task Force recommendations, NMFS
developed a proposed action and a range of reasonable alternatives and
evaluated the environmental impacts of the proposed action and
alternatives in a draft Environmental Assessment (EA) in accordance
with the National Environmental Policy Act (NEPA). The draft EA,
entitled Reducing the Impact on At-Risk Salmon and Steelhead by
California Sea Lions in the Area Downstream of Bonneville Dam on the
Columbia River, Oregon and Washington, was made available for public
comment for a 30-day comment period (73 FR 3453, January 18, 2008).
More than 3,500 comments were received, including comments from several
Task Force member organizations (e.g., states, tribes, HSUS) and others
including the Marine Mammal Commission and a member of Congress. NMFS
considered all public comments received on the states' application, the
draft EA, and other relevant information, and finalized its EA and MMPA
analyses. NMFS determined that its proposed action of authorizing the
lethal removal of a limited number of individually identifiable
California sea lions would not, pursuant to NEPA, result in a
significant impact on the human environment, and that, pursuant to the
MMPA, individually identifiable pinnipeds are having a significant
negative impact on the decline or recovery of at-risk salmonids.
Following these determinations, NMFS issued letters of authorization to
Idaho, Oregon and Washington on March 17, 2008, and included specific
terms and conditions related to the lethal removal program. On March
24, 2008, NMFS published a notice in the Federal Register informing the
public of its final decision on the states' application (73 FR 15483,
March 24, 2008).
Shortly after NMFS issued the 2008 section 120 LOA, HSUS and others
filed a complaint in the U.S. District Court for the District of
Oregon. Plaintiffs alleged that NMFS' approval of the lethal removal of
California sea lions violated the MMPA and NEPA. In November 2008, the
district court issued an order upholding NMFS' approval of the lethal
removal program and NMFS' evaluation of impacts under NEPA. Plaintiffs
appealed, and on November 23, 2010, the Ninth Circuit issued a decision
overturning NMFS' section 120 LOA, but upheld NMFS' analysis and
finding under NEPA. The Ninth Circuit recognized the significance of
pinniped predation at Bonneville Dam and noted there are many sources
of mortality that need to be controlled in order to recover endangered
and threatened salmonids. The court also recognized that ``sea lion
predation is a serious and potentially significant problem [at
Bonneville Dam], and that Congress, in enacting section 120 of the
MMPA, has authorized NMFS to give priority to ESA-listed salmonid
populations over MMPA-protected pinnipeds under specific
circumstances.'' Humane Society of the U.S. v. Locke, 626 F.3d 1040,
1054 (9th Cir. 2010). However, the court concluded that NMFS' record
lacked a satisfactory explanation concerning two main points: (1) The
seemingly inconsistent findings that sea lion predation is significant
for purposes of the MMPA, but similar or greater levels of take of the
same salmonid populations by fisheries and hydropower operations on the
Columbia River is not significant under other authorities (e.g., NEPA);
and (2) the agency's failure to explain adequately why a California sea
lion predation rate of greater than 1 percent results in a significant
negative impact on the decline or recovery of salmonid populations. The
Ninth Circuit instructed the district court to vacate NMFS' section 120
decision and remand the decision to NMFS ``to afford the agency the
opportunity either to articulate a reasoned explanation for its action
or to adopt a different action with a reasoned explanation that
supports it'' (Id. at 1053).
In response to the litigation, the states submitted a letter to
NMFS dated December 7, 2010 requesting that their LOA be reissued. NMFS
evaluated the states' request, developed a supplemental information
report to determine whether there was a need to supplement the 2008 EA
and Finding of No Significant Impact (FONSI), considered a recently
completed program effectiveness report by the Task Force Final Report
and Recommendations of the Marine Mammal Protection Act Section 120
Pinniped-Fishery Interaction Task Force: Columbia River 3-Year Review
and Evaluation, December 17, 2010, and prepared a comprehensive
analysis which took into account the Ninth Circuit's concerns and also
included a more robust explanation of the agency's decision to
authorize lethal removal of individually identifiable pinnipeds. On May
12, 2011, NMFS reissued an LOA to the states, relying in large part on
its administrative record supporting the 2008 LOA and the new analyses
prepared since the Ninth Circuit decision. See http://www.nwr.noaa.gov/Marine-Mammals/Seals-and-Sea-Lions/Sec-120-Authority.cfm for this LOA.
One week after NMFS issued the 2011 LOA, HSUS filed a lawsuit in
the U.S. District Court for the District of Columbia. HSUS once again
challenged NMFS' decision alleging, among other things, that the
agency: (1) Violated the MMPA when it failed to follow section 120's
procedural requirements, (2) failed to adequately explain the agency's
inconsistent factual findings that sea lion predation is having a
significant negative impact on the decline or recovery of listed
salmonids and that much greater take levels by fisheries and hydropower
operations are insignificant under NEPA, and (3) violated NEPA when it
issued a supplemental information report instead of preparing a
supplemental EA or an EIS. After considering HSUS' filing, particularly
its allegation that NMFS did not afford the public an opportunity to
participate in the section 120 process, NMFS, after consulting with the
states, revoked the 2011 LOA on July 27, 2011. HSUS subsequently filed
a Notice of Voluntary dismissal and the case was dismissed on August
15, 2011.
In order to prepare for the 2012 pinniped-salmonid conflict,
Oregon, Washington and Idaho submitted a new application for lethal
removal on August 18, 2011. The states are requesting a new 5-year MMPA
section 120 predatory California sea lion removal authorization
identical to the permit NMFS issued to the states on May 12, 2011.
Under the authorization the States propose to remove no more than 1% of
the potential biological removal (PBR) limit (defined below) for the
California sea lion population annually. The states define an
individually identifiable predatory California sea lions as having
natural or applied features that allow them to be individually
distinguished from other California sea lions and have been observed
eating salmonids at Bonneville Dam, in the ``observation area'' below
the dam, in the fish ladders, or above the dam, between January 1 and
May 31 of any year; have been observed at Bonneville Dam on a total of
five days (consecutive days, days within a single season, or days over
multiple years) between January 1 and May 31 of any year; and are
sighted at Bonneville Dam after they have been subjected to active non-
lethal deterrence. The states propose to review
[[Page 56169]]
the lethal removal program on an annual basis and evaluate its
effectiveness at reducing sea lion predation on salmonids at Bonneville
Dam. The evaluations will determine whether the states will continue
the removal program in each subsequent year, and if an extension of the
authority is needed at the end of the five year period. The expected
benefit from implementing the authorization would be to reduce the
recent, unmanageable (using only non-lethal techniques), and growing
source of ESA listed salmonid mortality. No lethal removal activities
will be conducted until such time as NMFS makes a final decision on the
states' pending application.
The application contains information on (1) pinniped population
trends, feeding habits, location and timing of the interaction and the
number of individual animals involved; (2) efforts to non-lethally
deter the pinnipeds and the relative success of those efforts; (3) the
extent of the injury or impact caused by pinnipeds on the fishery
resource; and (4) the extent that pinniped behavior presents a threat
to public safety, as outlined in section 120(d) of the MMPA.
The application presents data from the most recent U.S. Pacific
Marine Mammal Stock Assessment Report indicating that the U.S. stock of
California sea lions is not listed as ``threatened'' or ``endangered''
under the Endangered Species Act, nor as ``depleted'' or ``strategic''
under the MMPA. The population has been growing at 5.6% per year and is
estimated to number a minimum of 238,000 animals. The PBR level (i.e.,
the number of animals that could safely be lost to human caused
mortality annually without impacting the status of the population) is
8,511 animals. The states propose to remove no more than 1% of PBR (85)
of California sea lions annually. The application also summarizes data
from observations conducted at the dam since 2002 showing that
California sea lion annual presence at the dam increased from 59 days
in 2002 to 145 days in 2010 reflecting that over time they have tended
to arrive earlier and stay later in the year and that attendance by one
or more sea lions has become more consistent throughout the season. As
of fall 2010, a total of 264 California sea lions have been uniquely
identified by the U.S. Army Corps of Engineers observers using records
of applied brands and natural markings. The application reports that
data from observations conducted in 2011 have yet to become available
but early indications are that 2011 was an unusual year because winter/
spring river flow conditions appeared to delay salmonid run timing and
thus affected sea lion attendance and predation at the dam.
The application reports the results of sea lion food habits
research (scat and gastrointestinal analysis) conducted at the dam from
2006 through 2010 confirming that salmonids are the dominant prey of
California sea lions feeding near the dam. Adult salmonid remains were
found in over 92% of sea lion scat collected from haul out sites at and
near the dam. Sixteen gastrointestinal tracts were collected from
California sea lions sea lions that were taken at the dam under the
2008 authorization. Except for one tract that was empty, all tracts
collected contained identifiable salmonid remains.
As reported in the application, the analysis of observations
conducted by the U.S. Army Corps of Engineers from 2002 through 2010
showed that the minimum expanded estimate of salmonids consumed by
California sea lions within the observation zone below the dam
increased from 1,010 to 5,095 fish annually. In spite of fluctuating
run sizes, and apparently independent of annual run strength, salmonid
consumption by sea lions has increased steadily. The application points
out that the observed increase in consumption is masked when the
estimated consumption in the observation zone is expressed as a
percentage of run size because when fish passage is high the relative
percent consumed is smaller even though the number of fish eaten by sea
lions continues to rise. The application further explains that
estimated losses of salmonids to sea lions at the dam are minimum
estimates because they only apply to daylight predation within \1/4\
mile of the Bonneville Dam tailrace and forebay structures. Many more
predation events are known to occur beyond the small area where
observers on the dam can see and record events accurately. In addition
to salmonids killed immediately by predation, many fish are also
injured by predation attempts which may contribute to delayed mortality
that has not been quantified. Both wild and marked hatchery origin
salmonids are taken by sea lions.
Of the 13 threatened and endangered salmonid populations in the
Columbia River the application identifies eight that are potentially
impacted by California sea lions in the river and five that are
particularly vulnerable at Bonneville Dam. Of the species present at
the dam concurrent with sea lions, one population, upper Columbia River
spring Chinook, is listed as endangered under the ESA and four
populations are listed as threatened--Snake River spring/summer
Chinook, lower Columbia River steelhead, mid-Columbia River steelhead,
and Snake River steelhead. Marine mammal predation is only one of many
threats facing these fish populations and the states seek authorization
to manage predation as part of a larger comprehensive fish recovery
strategy that is attempting to reduce the impacts across all threats.
Beyond marine mammal predation the recovery actions include habitat
improvement, hydroelectric system mitigation, harvest reductions,
hatchery reforms and bird and fish predation management that are beyond
the scope of, but referenced in, the application.
Lastly, the application reports that numbers of California sea
lions in the Columbia River have been growing since the 1990s and some
animals have become aggressive and caused injuries to fishers along the
main stem of the river and its tributaries.
Request for Comments and Other Information
NMFS solicits public comments on the states' application and any
additional information that should be considered by the Task Force in
making its recommendation, or by NMFS in making its determination
whether to approve or deny the application.
The Assistant Administrator has considered the states' application
and determined that it provides sufficient evidence to warrant
establishing a Task Force. The application describes the means of
identifying individual pinnipeds, includes a detailed description of
the problem interactions between pinnipeds and listed salmonids at and
below Bonneville Dam, and describes the expected benefits of potential
taking of pinnipeds. The application also documents past nonlethal
efforts to prevent problem interactions. See http://www.nwr.noaa.gov/Marine-Mammals/Seals-and-Sea-Lions/Sec-120-Authority.cfm.
NMFS is seeking comments on a number of issues related to the
pinniped-salmonid conflict at Bonneville Dam. These matters include,
but are not limited to, the following:
(1) Any new information on pinnipeds in the action area (e.g.,
population, presence, predation) since 2008;
(2) Any new information concerning salmonids (e.g., status and
trends, recovery planning, passage counts,
[[Page 56170]]
predation versus run size, hatchery versus wild components) since 2008;
(3) Any new information concerning non-lethal deterrence measures
since 2008;
(4) The effect of permanent pinniped removals carried out under the
2008 LOA (i.e., impacts to California sea lion populations or salmonid
populations);
(5) Any new information concerning predation on salmonids by other
species since 2008; and,
(6) Recommendations made by the Task Force at its October/November
2010 meeting concerning the effectiveness of the 2008 LOA.
We are also including, for the public's consideration and comment,
our proposed interpretation of the MMPA standard ``significant negative
impact''; a list of the factors we propose to consider in deciding
whether that standard is met; and our proposed interpretation of what
is meant by ``individually identifiable pinnipeds'' that are having a
significant negative impact.
Pursuant to section 120(b)(1) of the MMPA, NMFS is required to make
a determination whether individually identifiable pinnipeds are having
a significant negative impact on the decline or recovery of at-risk
salmonid fishery stocks. As we explained in 2008, Congress did not
define the phrase ``individually identifiable pinnipeds which are
having a significant negative impact.'' Thus, NMFS applied a two-part
test in which the agency would first determine whether pinnipeds
collectively are having a significant negative impact on listed
salmonids and next determine which pinnipeds are significant
contributors to that impact and therefore, may be authorized for
removal. We continue to find this two-step test to be reasonable in
light of the facts and circumstances at Bonneville Dam. We also
propose, given the lack of guidance from Congress, that the plain
meaning of the term ``significant negative impact'' as used in section
120 should be employed. Our view is that in order for California sea
lions to be having a significant negative impact on the decline or
recovery of at-risk salmonids, the impact has to be ``meaningful'' and
not ``insignificant'' or ``meaningless.''
In determining whether to approve the states' application, we will
be guided primarily by the factors supplied by Congress in section
120(d). Congress directed NMFS to consider four categories of
information to determine whether to approve or deny a states' request:
(1) Populations trends and feeding habits of the pinnipeds; location,
timing and manner of the interaction; and number of individual
pinnipeds involved; (2) past non-lethal deterrence efforts and whether
the applicant has demonstrated that no feasible and prudent
alternatives exist and that the applicant has taken all reasonable
nonlethal steps without success; (3) extent to which the pinnipeds are
causing undue injury or impact, or imbalance with, other species in the
ecosystem, including fish populations; and (4) extent to which the
pinnipeds are exhibiting behavior that presents an ongoing threat to
public safety (see 16 U.S.C. 1389(d)).
We interpret this specific, detailed, and narrow inquiry mandated
by Congress as supplying the factors we should consider when
determining whether pinniped predation is having a ``significant
negative impact'' on at-risk salmonids. Moreover, as these factors are
detailed and specific, and are the only factors Congress mandated, we
propose to give them great weight. This approach is further supported
by the structure of section 120 and the context in which Congress
adopted it. MMPA section 120 applies to a specific and narrow set of
circumstances--namely, addressing an interspecies conflict where, as in
this case, one species is healthy, robust, and increasing in size and
the other is listed as threatened or endangered or is in a state of
decline. Pinniped predation on at-risk salmonids has been an emerging
and unchecked source of mortality, a problem that Congress specifically
addressed when it amended the MMPA in 1994.
Consistent with our interpretation and view of MMPA section 120,
and guided by the inquiry Congress required in section 120, we propose
that the determination of whether pinnipeds are having a ``significant
negative impact'' on salmonids should also be informed by the following
factors, a number of which we relied upon in 2008. They include:
(1) The predation is measurable, growing, and could continue to
increase if not addressed;
(2) The level of adult salmonid mortality is sufficiently large to
have a measurable effect on the numbers of listed adult salmonids
contributing to the viability of the affected ESUs/DPSs;
(3) The mortality rate for listed salmonids is comparable to
mortality rates from other sources that have led to corrective action
under the ESA;
(4) Non-lethal deterrence efforts have been unsuccessful at
reducing the numbers of sea lions or amount of predation;
(5) The predation rate from California sea lions increases when
salmonid run sizes decrease;
(6) The combined effect of California sea lion and Steller sea lion
predation on at-risk salmonids at Bonneville Dam; and,
(7) The fact that California sea lion numbers reached their highest
since 2004, thereby demonstrating that their numbers are as yet
unpredictable and can easily grow.
With respect to determining which animals are ``individually
identifiable pinnipeds,'' NMFS proposes, as it did in 2008, to extend
any future authorization only to predatory animals with physical
features distinguishing them from other pinnipeds (e.g., natural
features, brands, or other applied marks) thus meeting the requirement
that they be ``individually identifiable.'' To be considered predatory,
an animal must:
(1) Have been observed eating salmonids at Bonneville Dam in the
``observation area'' (i.e., either below or above the dam or in the
fish ladders) between January 1 and May 31 of any year;
(2) Have been observed at Bonneville Dam in the observation area on
a total of any 5 days (consecutive days, days within a single season,
or days over multiple years) between January 1 and May 31 of any year;
and
(3) Be sighted at Bonneville Dam in the observation area after
having been subjected to active non-lethal deterrence.
Our view is that an animal meeting all of these criteria has
learned that the area contains a preferred prey item and is successful
in pursuing it in that area, is persistent in pursuing that prey item,
and is not likely to be deterred from pursuing that prey item by non-
lethal means. Given its success at obtaining prey in the area and its
resistance to non-lethal deterrence efforts, such an animal has shown
itself to be making a significant contribution to the pinniped
predation problem at Bonneville Dam and is not a na[iuml]ve animal that
can be driven away from the area through non-lethal means.
Finally, we do not propose to adopt the suggestion, made by some
commenters during our prior process, that we equate determinations
under NEPA or ESA with determinations under section 120 of the MMPA.
The ESA and NEPA contain their own standards, definitions, and
purposes, which results in a different inquiry. NEPA and the ESA have
broad mandates and require agencies to evaluate the effects of the
proposed action in combination with other activities that may affect
the broader environment (NEPA) or threatened and endangered species
(ESA), respectively. In contrast, section 120 focuses solely
[[Page 56171]]
on pinniped predation on at-risk salmonids. NEPA's inquiry focuses on
the effects of a proposed action on the quality of the ``human
environment'', which is defined broadly by the Council on Environmental
Quality's regulation (see 40 CFR 1508.14). In addition, the term
``significantly'' has a specific meaning under the NEPA regulations and
a determination whether an action results in a significant impact on
the quality of the human environment is informed by a multitude of
factors (see 40 CFR 1508.27). In contrast, section 120 focuses on a
very narrow and specific conflict and asks only whether pinniped
predation is having a significant negative impact on the decline or
recovery of at-risk salmonids.
Under the ESA, NMFS must determine whether a proposed action is
``likely to jeopardize the continued existence'' of a threatened or
endangered species or ``result in the destruction or adverse
modification'' of designated critical habitat (16 U.S.C. 1536(a)(2)).
Under these standards, NMFS has adopted regulations that focus the
inquiry on the impacts of a proposed action on the species as a whole
or its designated critical habitat (see 50 CFR 402.02 and 402.14).
Moreover, as part of its section 7 analysis, NMFS considers the
``effects of the action,'' which includes the proposed action combined
with the effects of other activities that are interrelated or
interdependent with the proposed action, which will be added to the
environmental baseline. An action may not jeopardize the continued
existence of a species or result in the destruction or adverse
modification of critical habitat, even though it has significant
adverse effects to a listed individual or group of individuals. In sum,
the ESA's analytical process, like that of NEPA, is well-defined by
regulation and there is substantial agency guidance on both ESA and
NEPA implementation, unlike that of MMPA, section 120.
Establishment of the Task Force
NMFS intends to schedule a Task Force meeting in October 2011 to
consider the states' application. NMFS will invite member organizations
from the 2008 Task Force to participate on the 2011 Task Force in order
to take advantage of their expertise and familiarity with the subject
matter. NMFS will provide the public with prior notice of the Task
Force meeting as soon as a date is scheduled.
Dated: September 6, 2011.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2011-23266 Filed 9-9-11; 8:45 am]
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