[Federal Register Volume 72, Number 66 (Friday, April 6, 2007)]
[Pages 17134-17135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6413]



National Oceanic and Atmospheric Administration

[I.D. /607C]

Endangered and Threatened Species; Take of Anadromous Fish

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of availability and request for comment.


SUMMARY: Limit 10(i) of the June 28, 2005, Endangered Species Act (ESA) 
provides that road maintenance programs that comply with a program 
substantially similar to that contained in the Oregon Department of 
Transportation (ODOT) Guide that is determined to meet or exceed the 
protections provided by the ODOT Guide can be excepted from the 
prohibitions provided in earlier sections of that rule. The Five 
Counties Salmon Conservation Program's (5 C) ``A Water Quality and 
Stream Habitat Protection Manual for County Road Maintenance in 
Northwestern California Watersheds'' (Manual), is a comprehensive road 
maintenance program for Humboldt, Del Norte, Siskiyou, Trinity, and 
Mendocino Counties (5 C area). If the Manual is qualified under Limit 
10(i), each of the five counties would adopt the Manual as its road 
maintenance program. To facilitate NMFS review of the Manual under 
Limit 10(i), 5 C prepared a submittal package that addresses each of 
the approval criterion in the 4(d) rule. The Manual would affect two 
Evolutionarily Significant Units (ESUs) of threatened salmon and two 
Distinct Population Segments (DPSs) of threatened steelhead identified 
in the SUPPLEMENTARY INFORMATION below. The Manual specifies the future 
management practices for routine road maintenance activities within the 
5 C area. This notice serves to inform the public of the availability 
of the Manual and submittal package for review and comment.

DATES: Written comments on the Manual and submittal package must be 
received at the appropriate address or fax number (see ADDRESSES) no 
later than 5 p.m. Pacific Daylight Savings Time on May 7, 2007.

ADDRESSES: Written comments should be addressed to Garwin Yip, 
Protected Resources Division, National Marine Fisheries Service, 1655 
Heindon Road, Arcata, CA 95521. Comments may also be sent via fax to 
(707) 825-4840 or e-mail at 5C4DRule.SWR@noaa.gov. Comments will not be 
accepted if submitted via the Internet. Copies of the Manual and 
submittal package are available on the Internet at http://www.5counties.org.

FOR FURTHER INFORMATION CONTACT: Garwin Yip at phone number: (707) 825-
5166, or e-mail: garwin.yip@noaa.gov.

SUPPLEMENTARY INFORMATION: This notice is relevant to the salmonid ESUs 
and DPSs listed as threatened in the 5 C area and covered by the June 
2005 4(d) Rule. These ESUs and DPSs include the Southern Oregon/
Northern California Coast coho salmon ESU, California Coastal Chinook 
salmon ESU, Northern California steelhead DPS, and Central California 
Coast steelhead DPS.


    On June 28, 2005, NMFS adopted a rule under section 4(d) of the ESA 
of 1973, as amended prohibiting the ``take'' of 20 groups of salmon and 
steelhead listed as threatened under the ESA the 4(d) Rule. That rule 
also describes limits on the extension of the definition of take to 
certain state and local programs in 13 specific categories, including 
Routine Road Maintenance (Limit 10). Limit 10(i) provides that routine 
road maintenance activities conducted by employees or agents of a 
state, county, city, or port that complies with a program substantially 
similar to that contained in the ODOT Guide that is determined to meet 
or exceed the protections provided by the ODOT Guide are eligible for 
the limitation on the definition of ``take'' of threatened species as 
to those road maintenance activities.
    Each of the 5 counties of Humboldt, Del Norte, Siskiyou, Trinity, 
and Mendocino will adopt the Manual to obtain coverage under Limit 
10(i) of the 4(d) Rule, should NMFS find the Manual is consistent with 
Limit 10(i). For NMFS to approve the Manual under Limit 10(i), it must 
find that the Manual meets or exceeds the protections provided by the 
ODOT Guide. To facilitate the approval of the Manual, the 5 C prepared 
the submittal package that includes a comparison, where applicable, of 
each category of maintenance practices and how they are equal to or 
exceeds the protections provided by the ODOT Guide.
    In March 2007, the 5 C submitted the submittal package and Manual 
to NMFS for approval under the 4(d) rule. Within the Manual, Chapter 1 
explains watershed basics, stream habitat needs, and road treatment 
principles. Chapter 2 explains the regulatory process in establishing 
the necessary permits in

[[Page 17135]]

order to implement any of the routine road maintenance activities. 
Chapters 3 through 9 provide the Best Management Practices (BMPs) for 
routine road maintenance activities, and includes a description of the 
activity, any environmental concerns, permits that may be required, and 
useful references. The Manual also consists of specific road 
maintenance activities, staff training, implementation and 
effectiveness monitoring, adaptive management, emergency response 
measures, and reporting requirements.
    For each road maintenance activity, the Manual provides BMPs 
designed to achieve desired conservation outcomes. Only activities that 
fall under the definition of ``maintenance'' are include in the Manual. 
Repair and maintenance include activities that are conducted on 
currently serviceable structures, facilities, and equipment which 
involve no expansion of or change in use of such structures, 
facilities, and equipment beyond those which existed previously, and do 
not result in significant negative hydrological impact.
    The road maintenance project categories covered by the Manual 
include maintaining roads (e.g., grading, road surfacing, dust 
abatement, vegetation management, and winterizing the road system), 
maintaining culverts (e.g., culvert cleaning, improvement, repair, 
sizing, and replacement; ditch relief culverts, and temporary stream 
diversions), disposal of spoils, managing maintenance yards (e.g., 
facility housekeeping practices, building and grounds maintenance, 
vehicle and equipment maintenance, and material use and storage), 
maintaining bridges (e.g., bridge maintenance, repair, and drift 
removal), working with an emergency (e.g., emergency maintenance, slide 
and settlement repair, and accident clean-up), and dealing with snow 
and ice (snow and ice removal, de-icing/anti-icing and sanding).
    As specified in 50 CFR 223.203(b)(10)(i), the prohibitions of 50 
CFR 223.203(a) relating to certain threatened species do not apply to 
routine road maintenance activities provided that NMFS finds that the 
program meets or exceeds the protections provided by the ODOT Guide.


    Under section 4 of the ESA, the Secretary of Commerce is required 
to adopt such regulations as he deems necessary and advisable for the 
conservation of species listed as threatened. The ESA salmon and 
steelhead 4(d) rule (June 28, 2005; 70 FR 37160) specifies categories 
of activities that contribute to the conservation of listed salmonids 
and sets out the criteria for such activities. The rule further 
provides that the prohibitions of paragraph (a) of the rule do not 
apply to activity associated with routine road maintenance, provided 
that any state or local program comports with the standard described 
above and has been approved by NMFS to be in accordance with the salmon 
and steelhead 4(d) rule (June 28, 2005; 70 FR 37160).

    Dated: March 30, 2007.
Angela Somma,
Chief, Endangered Species Division, Office of Protected Resources, 
National Marine Fisheries Service.
[FR Doc. E7-6413 Filed 4-5-07; 8:45 am]