50 Cfr 223.203

§ 223.203

50 CFR Ch. II (10–1–10 Edition)

(2) Official activities. The taking of
Steller sea lions must be reported within 30 days to the Regional Administrator, Alaska Region. Paragraph (a) of
this section does not prohibit or restrict a Federal, state or local government official, or his or her designee,
who is acting in the course of official
duties from:
(i) Taking a Steller sea lion in a humane manner, if the taking is for the
protection or welfare of the animal, the
protection of the public health and welfare, or the nonlethal removal of nuisance animals; or
(ii) Entering the buffer areas to perform activities that are necessary for
national defense, or the performance of
other legitimate governmental activities.
(3) Subsistence takings by Alaska natives. Paragraph (a) of this section does
not apply to the taking of Steller sea
lions for subsistence purposes under
section 10(e) of the Act.
(4) Emergency situations. Paragraph
(a)(2) of this section does not apply to
an emergency situation in which compliance with that provision presents a
threat to the health, safety, or life of a
person or presents a significant threat
to the vessel or property.
(5) Exemptions. Paragraph (a)(2) of
this section does not apply to any activity authorized by a prior written exemption from the Director, Alaska Region, National Marine Fisheries Service. Concurrently with the issuance of
any exemption, the Assistant Administrator will publish notice of the exemption in the FEDERAL REGISTER. An exemption may be granted only if the activity will not have a significant adverse affect on Steller sea lions, the activity has been conducted historically
or traditionally in the buffer zones, and
there is no readily available and acceptable alternative to or site for the
activity.
(6) Navigational transit. Paragraph
(a)(2) of this section does not prohibit a
vessel in transit from passing through
a strait, narrows, or passageway listed
in this paragraph if the vessel proceeds
in continuous transit and maintains a
minimum of 1 nautical mile from the
rookery site. The listing of a strait,
narrows, or passageway does not indicate that the area is safe for naviga-

tion. The listed straits, narrows, or
passageways include the following:
Rookery
Akutan Island
Clubbing
Rocks.
Outer Island ...

Straits, narrows, or pass
Akutan Pass between Cape Morgan and Unalga Island.
Between Clubbing Rocks and
Cherni Island.
Wildcat Pass between Rabbit and
Ragged Islands.

(c) Penalties. (1) Any person who violates this section or the Act is subject
to the penalties specified in section 11
of the Act, and any other penalties provided by law.
(2) Any vessel used in violation of
this section or the Endangered Species
Act is subject to forfeiture under section 11(e)(4)(B) of the Act.
[55 FR 49210, Nov. 26, 1990, as amended at 56
FR 42542, Aug. 28, 1991; 56 FR 58184, Nov. 18,
1991; 58 FR 16371, Mar. 26, 1993; 58 FR 53139,
53141, Oct. 14, 1993; 58 FR 58594, Nov. 2, 1993;
62 FR 24355, May 5, 1997. Redesignated and
amended at 64 FR 14068–14069, Mar. 23, 1999]

§ 223.203 Anadromous fish.
Available guidance documents cited
in the regulatory text are listed in Appendix A to this section.
(a) Prohibitions. The prohibitions of
section 9(a)(1) of the ESA (16 U.S.C.
1538(a)(1)) relating to endangered species apply to fish with an intact
adipose fin that are part of the threatened species of salmonids listed in
§ 223.102(c)(3) through (c)(24).
(b) Limits on the prohibitions. The limits to the prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(c)(3) through (c)(24) are described in the following paragraphs
(b)(1) through (b)(13):
(1) The exceptions of section 10 of the
ESA (16 U.S.C. 1539) and other exceptions under the Act relating to endangered species, including regulations in
part 222 of this chapter implementing
such exceptions, also apply to the
threatened species of salmonids listed
in § 223.102(a).
(2) The prohibitions of paragraph (a)
of this section relating to threatened
Puget Sound steelhead listed in
§ 223.102(c)(23) do not apply to:
(i) Activities specified in an application for a permit for scientific purposes

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National Marine Fisheries Service/NOAA, Commerce
or to enhance the conservation or survival of the species, provided that the
application has been received by the
Assistant Administrator for Fisheries,
NOAA (AA), no later than November 14,
2008. The prohibitions of this section
apply to these activities upon the AA’s
rejection of the application as insufficient, upon issuance or denial of a permit, or June 1, 2009, whichever occurs
earliest, or
(ii) Steelhead harvested in tribal or
recreational fisheries prior to June 1,
2009, so long as the harvest is authorized by the State of Washington or a
tribe with jurisdiction over steelhead
harvest. If NMFS does not receive a
fishery management plan for Puget
Sound steelhead by November 14, 2008,
subsequent take by harvest will be subject to the take prohibitions.
(3) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to any employee or designee of NMFS, the United
States Fish and Wildlife Service, any
Federal land management agency, the
Idaho Department of Fish and Game
(IDFG), Washington Department of
Fish and Wildlife (WDFW), the Oregon
Department of Fish and Wildlife
(ODFW), California Department of Fish
and Game (CDFG), or of any other governmental entity that has co-management
authority
for
the
listed
salmonids, when the employee or designee, acting in the course of his or her
official duties, takes a threatened
salmonid without a permit if such action is necessary to:
(i) Aid a sick, injured, or stranded
salmonid,
(ii) Dispose of a dead salmonid, or
(iii) Salvage a dead salmonid which
may be useful for scientific study.
(iv) Each agency acting under this
limit on the take prohibitions of paragraph (a) of this section is to report to
NMFS the numbers of fish handled and
their status, on an annual basis. A designee of the listed entities is any individual the Federal or state fishery
agency or other co-manager has authorized in writing to perform the listed functions.
(4) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in

§ 223.203

§ 223.102(a) do not apply to fishery harvest activities provided that:
(i) Fisheries are managed in accordance with a NMFS-approved Fishery
Management and Evaluation Plan
(FMEP) and implemented in accordance with a letter of concurrence from
NMFS. NMFS will approve an FMEP
only if it clearly defines its intended
scope and area of impact and sets forth
the management objectives and performance indicators for the plan. The
plan must adequately address the following criteria:
(A) Define populations within affected listed ESUs, taking into account
spatial and temporal distribution, genetic and phenotypic diversity, and
other appropriate identifiably unique
biological and life history traits. Populations may be aggregated for management purposes when dictated by information scarcity, if consistent with survival and recovery of the listed ESU. In
identifying management units, the
plan shall describe the reasons for
using such units in lieu of population
units, describe how the management
units are defined, given biological and
life history traits, so as to maximize
consideration of the important biological diversity contained within the listed ESU, respond to the scale and complexity of the ESU, and help ensure
consistent
treatment
of
listed
salmonids across a diverse geographic
and jurisdictional range.
(B) Utilize the concepts of ‘‘viable’’
and ‘‘critical’’ salmonid population
thresholds, consistent with the concepts contained in the technical document entitled ‘‘Viable Salmonid Populations (NMFS, 2000b).’’ The VSP paper
provides a framework for identifying
the biological requirements of listed
salmonids, assessing the effects of
management and conservation actions,
and ensuring that such actions provide
for the survival and recovery of listed
species. Proposed management actions
must recognize the significant differences in risk associated with viable
and critical population threshold
states and respond accordingly to minimize the long-term risks to population
persistence. Harvest actions impacting
populations that are functioning at or
above the viable threshold must be designed to maintain the population or

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§ 223.203

50 CFR Ch. II (10–1–10 Edition)

management unit at or above that
level. For populations shown with a
high degree of confidence to be above
critical levels but not yet at viable levels, harvest management must not appreciably
slow
the
population’s
achievement of viable function. Harvest actions impacting populations
that are functioning at or below critical threshold must not be allowed to
appreciably increase genetic and demographic risks facing the population and
must be designed to permit the population’s achievement of viable function, unless the plan demonstrates that
the likelihood of survival and recovery
of the entire ESU in the wild would not
be appreciably reduced by greater risks
to that individual population.
(C) Set escapement objectives or
maximum exploitation rates for each
management unit or population based
on its status and on a harvest program
that assures that those rates or objectives are not exceeded. Maximum exploitation rates must not appreciably
reduce the likelihood of survival and
recovery of the ESU. Management of
fisheries where artificially propagated
fish predominate must not compromise
the management objectives for commingled naturally spawned populations.
(D) Display a biologically based rationale demonstrating that the harvest
management strategy will not appreciably reduce the likelihood of survival
and recovery of the ESU in the wild,
over the entire period of time the proposed harvest management strategy affects the population, including effects
reasonably certain to occur after the
proposed actions cease.
(E) Include effective monitoring and
evaluation programs to assess compliance, effectiveness, and parameter validation. At a minimum, harvest monitoring programs must collect catch and
effort
data,
information
on
escapements, and information on biological characteristics, such as age, fecundity, size and sex data, and migration timing.
(F) Provide for evaluating monitoring data and making any revisions
of assumptions, management strategies, or objectives that data show are
needed.

(G) Provide for effective enforcement
and education. Coordination among involved jurisdictions is an important
element in ensuring regulatory effectiveness and coverage.
(H) Include restrictions on resident
and anadromous species fisheries that
minimize any take of listed species, including time, size, gear, and area restrictions.
(I) Be consistent with plans and conditions established within any Federal
court proceeding with continuing jurisdiction over tribal harvest allocations.
(ii) The state monitors the amount of
take of listed salmonids occurring in
its fisheries and provides to NMFS on a
regular basis, as defined in NMFS’ letter of concurrence for the FMEP, a report summarizing this information, as
well as the implementation and effectiveness of the FMEP. The state shall
provide NMFS with access to all data
and reports prepared concerning the
implementation and effectiveness of
the FMEP.
(iii) The state confers with NMFS on
its fishing regulation changes affecting
listed ESUs to ensure consistency with
the approved FMEP. Prior to approving
a new or amended FMEP, NMFS will
publish notification in the FEDERAL
REGISTER announcing its availability
for public review and comment. Such
an announcement will provide for a
comment period on the draft FMEP of
not less than 30 days.
(iv) NMFS provides written concurrence of the FMEP which specifies the
implementation and reporting requirements. NMFS’ approval of a plan shall
be a written approval by NMFS Southwest or Northwest Regional Administrator, as appropriate. On a regular
basis, NMFS will evaluate the effectiveness of the program in protecting
and achieving a level of salmonid productivity commensurate with conservation of the listed salmonids. If it
is not, NMFS will identify ways in
which the program needs to be altered
or strengthened. If the responsible
agency does not make changes to respond adequately to the new information, NMFS will publish notification in
the FEDERAL REGISTER announcing its
intention to withdraw the limit for activities associated with that FMEP.
Such an announcement will provide for

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National Marine Fisheries Service/NOAA, Commerce
a comment period of not less than 30
days, after which NMFS will make a
final determination whether to withdraw the limit so that the prohibitions
would then apply to those fishery harvest activities. A template for developing FMEPs is available from NMFS
Northwest
Region’s
website
(www.nwr.noaa.gov).
(v) The prohibitions of paragraph (a)
of this section relating to threatened
species of steelhead listed in § 223.102
(a)(5) through (a)(9), (a)(14), and (a)(15)
do not apply to fisheries managed solely by the states of Oregon, Washington,
Idaho, and California until January 8,
2001.
(5) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to activity associated with artificial propagation
programs provided that:
(i) A state or Federal Hatchery and
Genetics Management Plan (HGMP)
has been approved by NMFS as meeting
the following criteria:
(A) The HGMP has clearly stated
goals, performance objectives, and performance indicators that indicate the
purpose of the program, its intended
results, and measurements of its performance in meeting those results.
Goals shall address whether the program is intended to meet conservation
objectives, contribute to the ultimate
sustainability of natural spawning populations, and/or intended to augment
tribal, recreational, or commercial
fisheries. Objectives should enumerate
the results desired from the program
that will be used to measure the program’s success or failure.
(B) The HGMP utilizes the concepts
of viable and critical salmonid population threshold, consistent with the
concepts contained in the technical
document entitled ‘‘Viable Salmonid
Populations’’ (NMFS, 2000b). Listed
salmonids may be purposefully taken
for broodstock purposes only if the
donor population is currently at or
above the viable threshold and the collection will not impair its function; if
the donor population is not currently
viable but the sole objective of the current collection program is to enhance
the propagation or survival of the listed ESU; or if the donor population is

§ 223.203

shown with a high degree of confidence
to be above critical threshold although
not yet functioning at viable levels,
and the collection will not appreciably
slow the attainment of viable status
for that population.
(C) Taking into account health,
abundances, and trends in the donor
population, broodstock collection programs reflect appropriate priorities.
The primary purpose of broodstock collection programs of listed species is to
reestablish indigenous salmonid populations for conservation purposes. Such
programs include restoration of similar, at-risk populations within the
same ESU, and reintroduction of atrisk populations to underseeded habitat. After the species’ conservation
needs are met and when consistent
with survival and recovery of the ESU,
broodstock collection programs may be
authorized by NMFS such for secondary purposes, as to sustain tribal,
recreational, and commercial fisheries.
(D) The HGMP includes protocols to
address fish health, broodstock collection, broodstock spawning, rearing and
release of juveniles, deposition of
hatchery adults, and catastrophic risk
management.
(E) The HGMP evaluates, minimizes,
and accounts for the propagation program’s genetic and ecological effects
on natural populations, including disease transfer, competition, predation,
and genetic introgression caused by the
straying of hatchery fish.
(F) The HGMP describes interrelationships and interdependencies
with fisheries management. The combination of artificial propagation programs and harvest management must
be designed to provide as many benefits
and as few biological risks as possible
for the listed species. For programs
whose purpose is to sustain fisheries,
HGMPs must not compromise the ability of FMEPs or other management
plans to conserve listed salmonids.
(G) Adequate artificial propagation
facilities exist to properly rear progeny
of naturally spawned broodstock, to
maintain population health and diversity, and to avoid hatchery-influenced
selection or domestication.
(H) Adequate monitoring and evaluation exist to detect and evaluate the
success of the hatchery program and

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§ 223.203

50 CFR Ch. II (10–1–10 Edition)

any risks potentially impairing the recovery of the listed ESU.
(I) The HGMP provides for evaluating
monitoring data and making any revisions of assumptions, management
strategies, or objectives that data show
are needed;
(J) NMFS provides written concurrence of the HGMP which specifies the
implementation and reporting requirements. For Federally operated or funded hatcheries, the ESA section 7 consultation will achieve this purpose.
(K) The HGMP is consistent with
plans and conditions set within any
Federal court proceeding with continuing jurisdiction over tribal harvest
allocations.
(ii) The state monitors the amount of
take of listed salmonids occurring in
its hatchery program and provides to
NMFS on a regular basis a report summarizing this information, and the implementation and effectiveness of the
HGMP as defined in NMFS’ letter of
concurrence. The state shall provide
NMFS with access to all data and reports prepared concerning the implementation and effectiveness of the
HGMP.
(iii) The state confers with NMFS on
a regular basis regarding intended collections of listed broodstock to ensure
congruity with the approved HGMP.
(iv) Prior to final approval of an
HGMP, NMFS will publish notification
in the FEDERAL REGISTER announcing
its availability for public review and
comment for a period of at least 30
days.
(v) NMFS’ approval of a plan shall be
a written approval by NMFS Southwest or Northwest Regional Administrator, as appropriate.
(vi) On a regular basis, NMFS will
evaluate the effectiveness of the HGMP
in protecting and achieving a level of
salmonid productivity commensurate
with the conservation of the listed
salmonids. If the HGMP is not effective, the NMFS will identify to the jurisdiction ways in which the program
needs to be altered or strengthened. If
the responsible agency does not make
changes to respond adequately to the
new information, NMFS will publish
notification in the FEDERAL REGISTER
announcing its intention to withdraw
the limit on activities associated with

that program. Such an announcement
will provide for a comment period of no
less than 30 days, after which NMFS
will make a final determination whether to withdraw the limit so that take
prohibitions, likeall other activity not
within a limit, would then apply to
that program. A template for developing HGMPs is available from NMFS
Northwest
Region’s
website
(www.nwr.noaa.gov).
(6) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to actions undertaken in compliance with a resource
management plan developed jointly by
the States of Washington, Oregon and/
or Idaho and the Tribes (joint plan)
within the continuing jurisdiction of
United States v. Washington or United
States v. Oregon, the on-going Federal
court proceedings to enforce and implement reserved treaty fishing rights,
provided that:
(i) The Secretary has determined pursuant to 50 CFR 223.209 and the government-to-government processes therein
that implementing and enforcing the
joint tribal/state plan will not appreciably reduce the likelihood of survival
and recovery of affected threatened
ESUs.
(ii) The joint plan will be implemented and enforced within the parameters set forth in United States v. Washington or United States v. Oregon.
(iii) In making that determination
for a joint plan, the Secretary has
taken comment on how any fishery
management plan addresses the criteria in § 223.203(b)(4), or on how any
hatchery and genetic management plan
addresses the criteria in § 223.203(b)(5).
(iv) The Secretary shall publish notice in the FEDERAL REGISTER of any
determination whether or not a joint
plan, will appreciably reduce the likelihood of survival and recovery of affected threatened ESUs, together with
a discussion of the biological analysis
underlying that determination.
(v) On a regular basis, NMFS will
evaluate the effectiveness of the joint
plan in protecting and achieving a
level of salmonid productivity commensurate with conservation of the
listed salmonids. If the plan is not effective, then NMFS will identify to the

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National Marine Fisheries Service/NOAA, Commerce
jurisdiction ways in which the joint
plan needs to be altered or strengthened. If the responsible agency does not
make changes to respond adequately to
the new information, NMFS will publish notification in the FEDERAL REGISTER announcing its intention to withdraw the limit on activities associated
with that joint plan. Such an announcement will provide for a comment period of no less than 30 days,
after which NMFS will make a final determination whether to withdraw the
limit so that take prohibitions would
then apply to that joint plan as to all
other activity not within a limit.
(7) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to scientific research activities provided that:
(i) Scientific research activities involving purposeful take is conducted
by employees or contractors of the
ODFW, WDFW (Agencies), IDFG, or
CDFG (Agencies), or as a part of a
monitoring and research program overseen by or coordinated with that Agency.
(ii) The Agencies provide for NMFS’
review and approval a list of all scientific research activities involving direct take planned for the coming year,
including an estimate of the total direct take that is anticipated, a description of the study design, including a
justification for taking the species and
a description of the techniques to be
used, and a point of contact.
(iii) The Agencies annually provide
to NMFS the results of scientific research activities directed at threatened
salmonids, including a report of the direct take resulting from the studies
and a summary of the results of such
studies.
(iv) Scientific research activities
that may incidentally take threatened
salmonids are either conducted by
agency personnel, or are in accord with
a permit issued by the Agency.
(v) The Agencies provide NMFS annually, for its review and approval, a
report listing all scientific research activities it conducts or permits that
may incidentally take threatened
salmonids during the coming year.
Such reports shall also contain the
amount of incidental take of threat-

§ 223.203

ened salmonids occurring in the previous year’s scientific research activities and a summary of the results of
such research.
(vi) Electrofishing in any body of
water known or suspected to contain
threatened salmonids is conducted in
accordance with NMFS ‘‘Guidelines for
Electrofishing
Waters
Containing
Salmonids Listed Under the Endangered Species Act’’ (NMFS, 2000a).
(vii) NMFS’ approval of a research
program shall be a written approval by
NMFS Northwest or Southwest Regional Administrator.
(8) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to habitat restoration activities, as defined in paragraph (b)(8)(iv) of this section, provided
that the activity is part of a watershed
conservation plan, and:
(i) The watershed conservation plan
has been certified by the State of
Washington, Oregon, Idaho, or California (State) to be consistent with the
state’s watershed conservation plan
guidelines.
(ii) The State’s watershed conservation plan guidelines have been found by
NMFS to provide for plans that:
(A) Take into account the potential
severity of direct, indirect, and cumulative impacts of proposed activities in
light of the status of affected species
and populations.
(B) Will not reduce the likelihood of
either survival or recovery of listed
species in the wild.
(C) Ensure that any taking will be incidental.
(D) Minimize and mitigate any adverse impacts.
(E) Provide for effective monitoring
and adaptive management.
(F) Use the best available science and
technology, including watershed analysis.
(G) Provide for public and scientific
review and input.
(H) Include any measures that NMFS
determines are necessary or appropriate.
(I) Include provisions that clearly
identify those activities that are part
of plan implementation.

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§ 223.203

50 CFR Ch. II (10–1–10 Edition)

(J) Control risk to listed species by
ensuring funding and implementation
of the above plan components.
(iii) NMFS will periodically review
state certifications of Watershed Conservation Plans to ensure adherence to
approved watershed conservation plan
guidelines.
(iv) ‘‘Habitat restoration activity’’ is
defined as an activity whose primary
purpose is to restore natural aquatic or
riparian habitat conditions or processes. ‘‘Primary purpose’’ means the
activity would not be undertaken but
for its restoration purpose.
(v) Prior to approving watershed conservation plan guidelines under paragraph (b)(8)(ii) of this section, NMFS
will publish notification in the FEDERAL REGISTER announcing the availability of the proposed guidelines for
public review and comment. Such an
announcement will provide for a comment period on the draft guidelines of
no less than 30 days.
(9) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to the physical
diversion of water from a stream or
lake, provided that:
(i) NMFS’ engineering staff or any resource agency or tribe NMFS designates (authorized officer) has agreed
in writing that the diversion facility is
screened, maintained, and operated in
compliance with Juvenile Fish Screen
Criteria, National Marine Fisheries
Service, Northwest Region, Revised
February 16, 1995, with Addendum of
May 9, 1996, or in California with
NMFS’
Southwest
Region
‘‘Fish
Screening Criteria for Anadromous
Salmonids, January 1997’’ or with any
subsequent revision.
(ii) The owner or manager of the diversion allows any NMFS engineer or
authorized officer access to the diversion facility for purposes of inspection
and determination of continued compliance with the criteria.
(iii) On a case by case basis, NMFS or
an Authorized Officer will review and
approve a juvenile fish screen design
and construction plan and schedule
that the water diverter proposes for
screen installation. The plan and
schedule will describe interim operation measures to avoid take of threat-

ened salmonids. NMFS may require a
commitment of compensatory mitigation if implementation of the plan and
schedule is terminated prior to completion. If the plan and schedule are not
met, or if a schedule modification is
made that is not approved by NMFS or
Authorized Officer, or if the screen installation deviates from the approved
design, the water diversion will be subject to take prohibitions and mitigation.
(iv) This limit on the prohibitions of
paragraph (a) of this section does not
encompass any impacts of reduced
flows resulting from the diversion or
impacts caused during installation of
the diversion device. These impacts are
subject to the prohibition on take of
listed salmonids.
(10) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to routine road
maintenance activities provided that:
(i) The activity results from routine
road maintenance activity conducted
by ODOT employees or agents that
complies with ODOT’s Transportation
Maintenance
Management
System
Water Quality and Habitat Guide
(July, 1999); or 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; or by employees or
agents of a state, county, city or port
that complies with a routine road
maintenance program that meets proper functioning habitat conditions as described further in subparagraph (ii) following. NMFS’ approval of state, city,
county, or port programs that are
equivalent to the ODOT program, or of
any amendments, shall be a written approval by NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. Any jurisdiction
desiring its routine road maintenance
activities to be within this limit must
first commit in writing to apply management practices that result in protections equivalent to or better than
those provided by the ODOT Guide, detailing how it will assure adequate
training, tracking, and reporting, and

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National Marine Fisheries Service/NOAA, Commerce
describing in detail any dust abatement practices it requests to be covered.
(ii) NMFS finds the routine road
maintenance activities of any state,
city, county, or port to be consistent
with
the
conservation
of
listed
salmonids’ habitat when it contributes,
as does the ODOT Guide, to the attainment and maintenance of properly
functioning condition (PFC). NMFS defines PFC as the sustained presence of
natural habitat-forming processes that
are necessary for the long-term survival of salmonids through the full
range of environmental variation. Actions that affect salmonid habitat
must not impair properly functioning
habitat, appreciably reduce the functioning of already impaired habitat, or
retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved
program for its effectiveness in maintaining and achieving habitat function
that provides for conservation of the
listed salmonids. Whenever warranted,
NMFS will identify to the jurisdiction
ways in which the program needs to be
altered or strengthened. Changes may
be identified if the program is not protecting desired habitat functions, or
where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to
conserve the ESU. If any jurisdiction
within the limit does not make
changes to respond adequately to the
new information in the shortest
amount of time feasible, but not longer
than one year, NMFS will publish notification in the FEDERAL REGISTER announcing its intention to withdraw the
limit so that take prohibitions would
then apply to the program as to all
other activity not within a limit. Such
an announcement will provide for a
comment period of no less than 30 days,
after which NMFS will make a final determination whether to subject the activities to the ESA section 9(a)(1) prohibitions.
(iii) Prior to implementing any
changes to a program within this limit
the jurisdiction provides NMFS a copy
of the proposed change for review and
approval as within this limit.

§ 223.203

(iv) Prior to approving any state,
city, county, or port program as within
this limit, or approving any substantive change in a program within
this limit, NMFS will publish notification in the FEDERAL REGISTER announcing the availability of the program or the draft changes for public review and comment. Such an announcement will provide for a comment period of not less than 30 days.
(v) Pesticide and herbicide spraying
is not included within this limit, even
if in accord with the ODOT guidance.
(11) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to activities
within the City of Portland, Oregon
Parks and Recreation Department’s
(PP&R) Pest Management Program
(March 1997), including its Waterways
Pest Management Policy updated December 1, 1999, provided that:
(i) Use of only the following chemicals is included within this limit on the
take prohibitions: Round Up, Rodeo,
Garlon
3A,
Surfactant
LI–700,
Napropamide,
Cutrine
Plus,
and
Aquashade.
(ii) Any chemical use is initiated in
accord with the priorities and decision
processes of the Department’s Pest
Management Policy, including the Waterways Pest Management Policy, updated December 1, 1999.
(iii) Any chemical use within a 25 ft.
(7.5 m) buffer complies with the buffer
application constraints contained in
PP&R’s Waterways Pest Management
Policy (update December 1, 1999).
(iv) Prior to implementing any
changes to this limit, the PP&R provides NMFS with a copy of the proposed change for review and approval
as within this limit.
(v) Prior to approving any substantive change in a program within
this limit, NMFS will publish notification in the FEDERAL REGISTER announcing the availability of the program or the draft changes for public review and comment. Such an announcement will provide for a comment period of no less than 30 days.
(vi) NMFS’ approval of amendments
shall be a written approval by NMFS
Northwest Regional Administrator.

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§ 223.203

50 CFR Ch. II (10–1–10 Edition)

(vii) NMFS finds the PP&R Pest
Management Program activities to be
consistent with the conservation of
listed salmonids’ habitat by contributing to the attainment and maintenance of properly functioning condition (PFC). NMFS defines PFC as the
sustained presence of a watershed’s
natural habitat-forming processes that
are necessary for the long-term survival of salmonids through the full
range of environmental variation. Actions that affect salmonid habitat
must not impair properly functioning
habitat, appreciably reduce the functioning of already impaired habitat, or
retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate the effectiveness of an approved program in
maintaining and achieving habitat
function that provides for conservation
of the listed salmonids. Whenever warranted, NMFS will identify to the jurisdiction ways in which the program
needs to be altered or strengthened.
Changes may be identified if the program is not protecting desired habitat
functions, or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels
needed to conserve the ESU. If any jurisdiction within the limit does not
make changes to respond adequately to
the new information in the shortest
amount of time feasible, but not longer
than 1 year, NMFS will publish notification in the FEDERAL REGISTER announcing its intention to withdraw the
limit so that take prohibitions would
then apply to the program as to all
other activity not within a limit. Such
an announcement will provide for a
comment period of no less than 30 days,
after which NMFS will make a final determination whether to subject the activities to the ESA section 9(a)(1) prohibitions.
(12) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to municipal,
residential, commercial, and industrial
(MRCI) development (including redevelopment) activities provided that:
(i) Such development occurs pursuant
to city, county, or regional government ordinances or plans that NMFS

has determined are adequately protective of listed species; or within the jurisdiction of the Metro regional government in Oregon and pursuant to ordinances that Metro has found comply
with its Urban Growth Management
Functional Plan (Functional Plan) following a determination by NMFS that
the Functional Plan is adequately protective. NMFS approval or determinations about any MRCI development ordinances or plans, including the Functional Plan, shall be a written approval
by NMFS Northwest or Southwest Regional Administrator, whichever is appropriate. NMFS will apply the following 12 evaluation considerations
when reviewing MRCI development ordinances or plans to assess whether
they
adequately
conserve
listed
salmonids by maintaining and restoring properly functioning habitat conditions:
(A) MRCI development ordinance or
plan ensures that development will
avoid inappropriate areas such as unstable slopes, wetlands, areas of high
habitat value, and similarly constrained sites.
(B) MRCI development ordinance or
plan adequately avoids stormwater discharge impacts to water quality and
quantity or to the hydrograph of the
watershed, including peak and base
flows of perennial streams.
(C) MRCI development ordinance or
plan provides adequately protective riparian area management requirements
to attain or maintain PFC around all
rivers, estuaries, streams, lakes, deepwater
habitats,
and
intermittent
streams. Compensatory mitigation is
provided, where necessary, to offset unavoidable damage to PFC due to MRCI
development impacts to riparian management areas.
(D) MRCI development ordinance or
plan avoids stream crossings by roads,
utilities, and other linear development
wherever possible, and, where crossings
must be provided, minimize impacts
through choice of mode, sizing, and
placement.
(E) MRCI development ordinance or
plan adequately protects historical
stream meander patterns and channel
migration zones and avoids hardening
of stream banks and shorelines.

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National Marine Fisheries Service/NOAA, Commerce
(F) MRCI development ordinance or
plan adequately protects wetlands and
wetland functions, including isolated
wetlands.
(G) MRCI development ordinance or
plan adequately preserves the hydrologic capacity of permanent and intermittent streams to pass peak flows.
(H) MRCI development ordinance or
plan includes adequate provisions for
landscaping with native vegetation to
reduce need for watering and application of herbicides, pesticides, and fertilizer.
(I) MRCI development ordinance or
plan includes adequate provisions to
prevent erosion and sediment run-off
during construction.
(J) MRCI development ordinance or
plan ensures that water supply demands can be met without impacting
flows needed for threatened salmonids
either directly or through groundwater
withdrawals and that any new water
diversions are positioned and screened
in a way that prevents injury or death
of salmonids.
(K) MRCI development ordinance or
plan provides necessary enforcement,
funding, reporting, and implementation mechanisms and formal plan evaluations at intervals that do not exceed
5 years.
(L) MRCI development ordinance and
plan complies with all other state and
Federal environmental and natural resource laws and permits.
(ii) The city, county or regional government provides NMFS with annual
reports regarding implementation and
effectiveness of the ordinances, including: any water quality monitoring information the jurisdiction has available; aerial photography (or some other
graphic display) of each MRCI development or MRCI expansion area at sufficient detail to demonstrate the width
and vegetation condition of riparian
set-backs; information to demonstrate
the success of stormwater management
and other conservation measures; and a
summary of any flood damage, maintenance problems, or other issues.
(iii) NMFS finds the MRCI development activity to be consistent with the
conservation of listed salmonids’ habitat when it contributes to the attainment and maintenance of PFC. NMFS
defines PFC as the sustained presence

§ 223.203

of a watershed’s habitat-forming processes that are necessary for the longterm survival of salmonids through the
full range of environmental variation.
Actions that affect salmonid habitat
must not impair properly functioning
habitat, appreciably reduce the functioning of already impaired habitat, or
retard the long-term progress of impaired habitat toward PFC. Periodically, NMFS will evaluate an approved
program for its effectiveness in maintaining and achieving habitat function
that provides for conservation of the
listed salmonids. Whenever warranted,
NMFS will identify to the jurisdiction
ways in which the program needs to be
altered or strengthened. Changes may
be identified if the program is not protecting desired habitat functions, or
where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels needed to
conserve the ESU. If any jurisdiction
within the limit does not make
changes to respond adequately to the
new information in the shortest
amount of time feasible, but not longer
than 1 year, NMFS will publish notification in the FEDERAL REGISTER announcing its intention to withdraw the
limit so that take prohibitions would
then apply to the program as to all
other activity not within a limit. Such
an announcement will provide for a
comment period of no less than 30 days,
after which NMFS will make a final determination whether to subject the activities to the ESA section 9(a)(1) prohibitions.
(iv) Prior to approving any city,
county, or regional government ordinances or plans as within this limit, or
approving any substantive change in
an ordinance or plan within this limit,
NMFS will publish notification in the
FEDERAL REGISTER announcing the
availability of the ordinance or plan or
the draft changes for public review and
comment. Such an announcement will
provide for a comment period of no less
than 30 days.
(13) The prohibitions of paragraph (a)
of this section relating to threatened
species
of
salmonids
listed
in
§ 223.102(a) do not apply to non-Federal

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§ 223.203

50 CFR Ch. II (10–1–10 Edition)

forest management activities conducted in the State of Washington provided that:
(i) The action is in compliance with
forest practice regulations adopted and
implemented by the Washington Forest
Practices Board that NMFS has found
are at least as protective of habitat
functions as are the regulatory elements of the Forests and Fish Report
dated April 29, 1999, and submitted to
the Forest Practices Board by a consortium of landowners, tribes, and
state and Federal agencies.
(ii) All non-regulatory elements of
the Forests and Fish Report are being
implemented.
(iii) Actions involving use of herbicides, pesticides, or fungicides are not
included within this limit.
(iv) Actions taken under alternative
plans are included in this limit provided that the Washington Department
of Natural Resources (WDNR) finds
that the alternate plans protect physical and biological processes at least as
well as the state forest practices rules
and provided that NMFS, or any resource agency or tribe NMFS designates, has the opportunity to review
the plan at every stage of the development and implementation. A plan may
be excluded from this limit if, after
such review, WDNR determines that
the plan is not likely to adequately
protect listed salmon.
(v) Prior to determining that regulations adopted by the Forest Practice
Board are at least as protective as the
elements of the Forests and Fish Report, NMFS will publish notification in
the FEDERAL REGISTER announcing the
availability of the Report and regulations for public review and comment.
(vi) NMFS finds the activities to be
consistent with the conservation of
listed salmonids’ habitat by contributing to the attainment and maintenance of PFC. NMFS defines PFC as
the sustained presence of a watershed’s
natural habitat-forming processes that
are necessary for the long-term survival of salmonids through the full
range of environmental variation. Actions that affect salmonid habitat
must not impair properly functioning
habitat, appreciably reduce the functioning of already impaired habitat, or
retard the long-term progress of im-

paired habitat toward PFC. Programs
must meet this biological standard in
order for NMFS to find they qualify for
a habitat-related limit. NMFS uses the
best available science to make these
determinations. NMFS may review and
revise previous findings as new scientific information becomes available.
NMFS will evaluate the effectiveness
of the program in maintaining and
achieving habitat function that provides for conservation of the listed
salmonids. If the program is not adequate, NMFS will identify to the jurisdiction ways in which the program
needs to be altered or strengthened.
Changes may be identified if the program is not protecting desired habitat
functions or where even with the habitat characteristics and functions originally targeted, habitat is not supporting population productivity levels
needed to conserve the ESU. If Washington does not make changes to respond adequately to the new information, NMFS will publish notification in
the FEDERAL REGISTER announcing its
intention to withdraw the limit on activities associated with the program.
Such an announcement will provide for
a comment period of no less than 30
days, after which NMFS will make a
final determination whether to subject
the activities to the ESA section 9(a)(1)
take prohibitions.
(vii) NMFS approval of regulations
shall be a written approval by NMFS
Northwest Regional Administrator.
(c) Affirmative Defense. In connection
with any action alleging a violation of
the prohibitions of paragraph (a) of
this section with respect to the threatened species of salmonids listed in
§ 223.102(a), any person claiming the
benefit of any limit listed in paragraph
(b) of this section or § 223.204(a) shall
have a defense where the person can
demonstrate that the limit is applicable and was in force, and that the person fully complied with the limit at
the time of the alleged violation. This
defense is an affirmative defense that
must be raised, pleaded, and proven by
the proponent. If proven, this defense
will be an absolute defense to liability
under section 9(a)(1)(G) of the ESA
with respect to the alleged violation.
(d) Severability. The provisions of this
section and the various applications

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National Marine Fisheries Service/NOAA, Commerce
thereof are distinct and severable from
one another. If any provision or the application thereof to any person or circumstances is stayed or determined to
be invalid, such stay or invalidity shall
not affect other provisions, or the application of such provisions to other
persons or circumstances, which can be
given effect without the stayed or invalid provision or application.
APPENDIX A TO § 223.203—LIST OF GUIDANCE
DOCUMENTS
The following is a list of documents cited
in the regulatory text. Copies of these documents may be obtained upon request from
the Northwest or Southwest Regional Administrators (see Table 1 in § 600.502 of this
title).
1. Oregon Department of Transportation
(ODOT) Maintenance Management System
Water Quality and Habitat Guide (July,
1999).
2. Guidelines for Electrofishing Waters
Containing Salmonids Listed Under the Endangered Species Act.
3. Fish Screening Criteria for Anadromous
Salmonids, National Marine Fisheries Service, Southwest Region, 1997.
4. Viable Salmonid Populations and the
Recovery of Evolutionarily Significant
Units. (June 2000).
[65 FR 42475, July 10, 2000, as amended at 67
FR 1129, Jan. 9, 2002; 67 FR 68725, Nov. 12,
2002; 70 FR 37202, 37203, June 28, 2005; 71 FR
5180, Feb. 1, 2006; 73 FR 7843, Feb. 11, 2008; 73
FR 55455, Sept. 25, 2008]

§ 223.204

Tribal plans.

(a) Limits on the prohibitions. The prohibitions of § 223.203(a) of this subpart
relating to threatened species of
salmonids listed in § 223.102 do not
apply to any activity undertaken by a
tribe, tribal member, tribal permittee,
tribal employee, or tribal agent in
compliance with a Tribal resource
management plan (Tribal Plan), provided that the Secretary determines
that implementation of such Tribal
Plan will not appreciably reduce the
likelihood of survival and recovery of
the listed salmonids. In making that
determination the Secretary shall use
the best available biological data (including any tribal data and analysis) to
determine the Tribal Plan’s impact on
the biological requirements of the species, and will assess the effect of the
Tribal Plan on survival and recovery,
consistent with legally enforceable

§ 223.205

tribal rights and with the Secretary’s
trust responsibilities to tribes.
(b) Consideration of a Tribal Plan. (1) A
Tribal Plan may include but is not limited to plans that address fishery harvest, artificial production, research, or
water or land management, and may be
developed by one tribe or jointly with
other tribes. The Secretary will consult on a government-to-government
basis with any tribe that so requests
and will provide to the maximum extent practicable technical assistance in
examining impacts on listed salmonids
and other salmonids as tribes develop
Tribal resource management plans that
meet the management responsibilities
and needs of the tribes. A Tribal Plan
must specify the procedures by which
the tribe will enforce its provisions.
(2) Where there exists a Federal court
proceeding with continuing jurisdiction over the subject matter of a Tribal
Plan, the plan may be developed and
implemented within the ongoing Federal Court proceeding. In such circumstances, compliance with the Tribal Plan’s terms shall be determined
within that Federal Court proceeding.
(3) The Secretary shall seek comment from the public on the Secretary’s pending determination whether or not implementation of a Tribal
Plan will appreciably reduce the likelihood of survival and recovery of the
listed salmonids.
(4) The Secretary shall publish notification in the FEDERAL REGISTER of any
determination regarding a Tribal Plan
and the basis for that determination.
[65 FR 42485, July 10, 2000. Redesignated at 70
FR 37203, June 28, 2005]

§ 223.205 Sea turtles.
(a) The prohibitions of section 9 of
the Act (16 U.S.C. 1538) relating to endangered species apply to threatened
species of sea turtle, except as provided
in § 223.206.
(b) Except as provided in § 223.206, it
is unlawful for any person subject to
the jurisdiction of the United States to
do any of the following:
(1) Own, operate, or be on board a
vessel, except if that vessel is in compliance with all applicable provisions
of § 223.206(d);
(2) Fish for, catch, take, harvest, or
possess, fish or wildlife while on board

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