Comments from Darby Fuerst General Manager MPWMD
March 1 2000
Garth Griffin, Branch Chief
Protected Resource Division
National Marine Fisheries Service
Northwest Region
525 NE Oregon Street, Suite 500
Portland, OR 97232-2737
SUBJECT: COMMENTS
ON PROPOSED 4d RULES AND REQUEST FOR CLARIFICATION ON ACTIVITIES
AUTHORIZED UNDER PROPOSED RULES re: STEELHEAD IN THE CARMEL
RIVER, CALIFORNIA
Dear Mr. Griffin:
This letter is in response to the
National Marine Fisheries Service's (NMFS's) publication of
proposed 4d rules to protect steelhead, which were published in
the Federal Register on December 30, 1999. The Monterey
Peninsula Water Management District (District) has comments on
the proposed rule and seeks clarification on activities that
would be authorized under the proposed rules. These
comments and request for clarification are made with specific
reference to steelhead in the Carmel River Basin, which is part
of the South-Central California Evolutionarily Significant Unit (ESU)
No.14 for steelhead (Oncorhynchus mykiss).
General Comment
The District is pleased to see that NMFS
has proposed a set of limitations on the application of Section
Nine prohibitions to certain activities, including activities
conducted in accord with incidental take authorizations through
ESA sections 7 or 10, actions related to injured or stranded
steelhead, local habitat restoration activities, scientific
research activities conducted by the states, and properly
screened water diversion devices.
Specific Comments
Following is a list of specific comments
and recommendations on the proposed 4d rules, which are keyed to
the text published in the Federal Register by page, column and
paragraph numbers.
1. Page 73479, 3rd column, last paragraph:
The District concurs that "take" prohibitions are
necessary to protect and restore steelhead in the threatened
Evolutionarily Significant Units (ESUs) and that many inland
factors are related to the coastwide decline in steelhead.
However, we believe that NMFS should also consider the impact of
ocean survival conditions in assessing success of land-based
restoration activities, and in setting numerical goals for
recovery. For example, it is possible that high densities
of juvenile steelhead and smolt production from freshwater
environments could be followed by low numbers of returning adult
steelhead, due to the
2) effects of variable ocean conditions.
This is supported by studies showing that oceanographic
conditions strongly influence the ocean survival of steelhead.1
The District recommends that NMFS set realistic goals for
production of juvenile and smolt steelhead from freshwater, in
recognition of the fact that ocean survival will have a primary
influence on the number of fish returning from the ocean.
3)
4) Page 73480, 3rd Column, 1st para, item
3) Emergency actions related to injured, stranded or dead
fish, and Page 73484, 2nd column under Take Prohibition Limit for
Rescue and Salvage Actions: The District appreciates the
recognition of salvage operations as approved activities in
circumstances where steelhead are at risk of stranding from
critically low streamflow conditions. The District remains
concerned about the qualification or implication that these
actions would only be approved in "emergencies". The
NMFS should define emergency and clarify whether rescue and
salvage operations would be included as an approved limitation on
take in situations where the lack of streamflow and stranding is
an expected phenomenon. If rescues are not allowed as part
of a limitation, would rescue activity be approved as part of a
Section 10 permit?
1) Page 73481, 2nd Column, under Take
Guidance: The District agrees with the classification of take
into three specific levels of take, stratified by severity of
effect, but is concerned that "driving vehicles or equipment
across or down the streambed" will "very likely injure
or kill salmonids". There is no doubt that certain
crossings or driving longitudinally along a stream can be
detrimental. However, the District regularly uses a
concrete river crossing for access to the Sleepy Hollow Steelhead
Rearing Facility (SHSRF), which is the only reasonable access to
the facility. This action has never injured or killed a
steelhead. Accordingly, NMFS should modify or qualify the
take guidance regarding the level of impact for this type of
crossing, or provide another limitation on the take prohibitions
in such cases.
1) Page 73481, 3rd column, last paragraph:
In reference to the process for addressing activities which may
injure or kill steelhead, the NMFS advocates two approaches for
responding to these activities, prior to an enforcement action.
The first approach involves modifying the activity to avoid take
and actively pursuing an incidental take permit through
negotiation with NMFS. The second approach involves shaping
the activity to come within one of the proposed limits on the
take prohibitions. The District is concerned that in cases
where existing water development has affected adult migration
opportunities, it may not be feasible to "immediately modify"
water diversions to avoid take, while actively pursuing an
incidental take permit. NMFS should clarify the process in
this situation and possibly include a scenario of modifying
diversions to minimize take within a reasonable period of time.
1) Page 73482, 2nd column, under Issue 2:
The District supports the biological concept of critical and
viable thresholds and will comment on the policy paper "Viable
Salmonid Populations" at a later date. In setting
thresholds, NMFS should establish thresholds for juvenile
populations in freshwater environments.
1) Page 73482, 2nd column, under
Identifying Populations within ESU's: The District supports NMFS
proposal to include the concept of fish stocks as defined by
Ricker2 when it evaluates the extinction risk of one population
of steelhead independently from other population. This will
allow for more flexibility in administering the prohibition on
take. NMFS should discuss whether the stock concept will be
used in evaluating whether to de-list a specific stock,
independent from an evaluation of other stocks in an ESU.
1) Page 73483, 1st column, 2nd para: The
methods referenced for assessing viable population size should
include assessments of juvenile population size, in addition to
historic abundance levels and habitat capacity for the population.
1) Page 73483, 3rd column, continued
para, last sentence: The sentence, "Specific criteria
associated with achieving these conditions are listed with each
habitat related limit on take prohibitions." is unclear and
does not appear to be linked with the concept of properly
functioning habitat conditions.
1) Page 73484, 2nd column, under
Continuity of Scientific Research: The sentence detailing when
section 9 prohibitions would extend to scientific research
includes the following caveat, "The section 9 prohibitions
would extend to these activities ... upon issuance ... of a
permit." This statement could lead the applicant to
conclude that no limitations on the take prohibitions will occur
with issuance of a permit. So why bother applying for a permit?
1) Page 73484, 2nd column, under Take
Prohibition Limit for Rescue and Salvage Actions: The District
supports NMFS's exception for rescue and salvage, but recommends
that the limitation on take prohibitions be modified to include
facilities for transporting, holding and rearing rescued,
naturally spawned steelhead. An alternative would be to
have the facilities reviewed as part of a Section 10a1A permit
for propagation and enhancement activities. In addition, NMFS
should provide guidance on the fate of rescued fish.
1) Page 73486-87, under Artificial
Propagation Limit on the Take Prohibitions: The NMFS should
specifically list the use of broodstock programs for restoring
steelhead populations, in situations where long-term effects of
water development have severely reduced opportunities for
upstream migration of adults and downstream emigration of
juveniles and smolts. NMFS should establish a process and a
set of criteria for approval of broodstock programs based on the
concept of collecting smolts, rearing these fish to adult size,
and releasing the subsequent broodstock into rivers as naturally
spawning fish. This would provide a way to mitigate for the
effects of water development in many coastal streams, which lack
adequate flows for upstream migration in drought years.
1) Page 73488, 3rd column, under Habitat
Restoration Limits: NMFS is proposing to exclude all "artificial"
bank stabilization projects from a limit on the prohibitions to
take. The District believes this will unnecessarily
increase the workload for processing Section 7 permits for
certain projects, which would have minimal or no take, if the
activity followed appropriate standards and guidelines.
Artificial bank stabilization (combined with bioengineering
techniques) may be the only acceptable option for some modicum of
restoration of natural channel geometry in constrained urban
waterways where steelhead exist. NMFS should reconsider its'
position on this issue and make allowance for limited bank
stabilization activities under the proposed limit on
prohibitions, and we recommend that NMFS develop and adopt a set
of criteria for this limitation.
Additionally, the proposed 4d rule does
not include any provision for limited herbicide use or consider
herbicide applications to be restoration activities. While
the MPWMD understands NMFS rationale for excluding this activity,
MPWMD believes that in certain circumstances the definition of
"restoration activity" should be expanded to include
limited use of herbicides. Specfically, herbicide treatment
may be required to adequately restore the vigor and natural
function of critical riparian habitat by removing weedy
invasive non-native plants that destroy natural riparian
processes, for example cape ivy or giant reed.
1) Pages 73489, Large Woody Debris
Section: The District commends the NMFS for recognizing and
formalizing the importance of woody debris as a primary
functional component in the ecological processes of coastal
streams. It is crucial to the life cycle of steelhead and
salmon and provides: 1) cover and shade in critical rearing
habitats, 2) encouraging local scour of the streambed and
creating pool habitats for juveniles, smolts and adults, 3)
serving as the basic energy source for the food web in many
coastal streams, and 4) providing micro-habitats and food for
aquatic insects which are key prey items for juvenile steelhead.
However, the District's experience is that the importance of
woody debris is not understood or accepted by many property
owners living adjacent to the Carmel River and its tributaries.
The District encourages NMFS to highlight the importance of this
material in a specific public outreach/education program, so that
conflicts are minimized in the future.
1) Page 73489, 2nd Column, under para No.3:
This section describes the acceptable size of large woody debris
(LWD) and methods for placement. This limitation should be
modified to recognize that on larger rivers, the required size of
LD is so large that suitable trees would have to be imported, or
none would be placed due to liability concerns. In
reviewing the guidelines for placement of woody debris in
California, California Salmonid Stream Habitat Restoration
Manual, 1/1998, MPWMD notes that the California definition aof
LWD (LWD = ?12" diameter and ?6' length) is not consistent
with length requirements in the proposed 4d rule. Regarding
size classifications for woody debris, the MPWMD recommends that
NMFS adopt a set of definitions and standards for use throughout
the range of steelhead in Washington, Oregon, and California.
The definitions and standards should be based on a review of
scientific reports, the functional role of woody debris, and
policy guidelines recommended by the American Fisheries Society (AFS).
The proposed 4d rule does not allow permanent anchoring of woody
debris. The MPWMD believes this requirement is unreasonable.
Permanent anchoring may be the only method available to insure
that large debris isn't mobilized into positions that would
threaten bank stability in certain river systems.
The MPWMD is concerned that projects to
add small wood debris (SWD) would be hampered by requirements to
anchor debris. The final 4d rule should cover small scale
projects where SWD is added to stream sections for the
express purpose of restoring or enhancing steelhead habitat and
provide guidance for this activity.
Regarding the removal of woody debris,
the MPWMD recognizes the need to reduce the wide-scale removal of
debris as a way to preserve critical rearing habitat, but
questions whether it is prudent to not have a limitation on take
prohibitions for limited activities associated with removal of
debris that blocks fish passage, or creates potential erosion
hazards under emergency conditions. MPWMD recommends that
the final 4d rule include criteria which explicitly states the
conditions under which is would be permissible for removal of
woody debris.
1) Page 73503, Section 223.208(b)(8)(ii)(C)Large
wood (LW) placement: This section applies only to small streams
and tributaries and not to rivers. This should be stated
and NMFS should consider adding a separate section for placement
of LW in rivers. LW is routinely removed to protect bridges
and private property and reduce the potential for flooding and
bank erosion. Many critics of channel maintenance
activities cite removal of LW as a significant impact to
fisheries habitat. A potential enhancement that may satisfy
the need to maintain public and private property while enhancing
habitat value is to anchor LW to streambanks. However, in
urban settings, where floodplain encroachment often limits
available streambank width, and in alluvial systems with non-cohesive
soil, simple burying of LW in a streambank has an unacceptable
risk of failure. The stability of LW can be increased by
installing large rock, cables, or a combination to protect logs
from scour failure. Placement of LW in an optimum location
and configuration may require the use of heavy equipment, such as
an excavator or a backhoe, in the channel. NMFS should
consider encouraging these types of activities without the time-consuming
requirement of obtaining a Section 404 permit or a Section 10 ESA
permit.
If you have any questions on MPWMD's
comments, please call me at (831) 649-4866. Thank you for
the opportunity to comment on the proposed 4d rules for
protecting steelhead. On behalf of MPWMD, our staff looks
forward to cooperating with NMFS in efforts to restore the
steelhead populations in the South-Central California ESU.
Sincerely,
Darby W. Fuerst
General Manager
cc: MPWMD Board
Pat
Coulston, CDFG
Joyce
Ambrosius, NMFS
Clive
Sanders, Carmel River Steelhead Association
Staff of
MPWMD Planning and Engineering and Water Resources Divisions
David
Bolland, ACWA
Tom
Taylor, Entrix Inc.
U:\arlene\wp\yr2000\misc\4dcmnts
1 Cramer and Van Dyke 1994; Fisher and
Pearcy 1994; Cooper and Johnson 1992, as cited by Cramer, etal.
1995. The Status of Steelhead Populations in California in
Regards to the Endangered Species Act. Special Report
submitted to the National Marine Fisheries Service on behalf of
the Association of California Water Agencies. 190 pp.
2Ricker, W. E. 1972. Hereditary and
environmental factors affecting certain salmonid populations.
Pages 19-160 in R.C. Simon and P. A. Larkin, Eds. The stock
concept in Pacfic Salmon. H. R. MacMillan Lectures in
Fisheries. University of British Columbia, Vancouver.
Comment Letter-Proposed 4d Rule
March 1, 2000
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