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Endangered and Threatened Species; Take of Anadromous Fish

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


Notice of availability and request for comment.


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.


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.


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 Comments will not be accepted if submitted via the Internet. Copies of the Manual and submittal package are available on the Internet at

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Garwin Yip at phone number: (707) 825-5166, or e-mail:

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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 Start Printed Page 17135order 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).

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Dated: March 30, 2007.

Angela Somma,

Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service.

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[FR Doc. E7-6413 Filed 4-5-07; 8:45 am]