Some Federal Requirements for Aquatic Organism Passage at
Road-Stream Crossings
The following is adapted from a synopsis of federal laws relating to aquatic organism passage by
Jack McDonald, 2002.
1973 Endangered Species Act
Section 9---Prohibition of Take
The Endangered Species Act prohibits the “take” of a listed animal species under section 9. The
prohibition applies to any person, including a federal agency as well as private citizens. A “take”
is defined in the ESA as an action or attempted action to “harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect”. A key term in the take definition is “harm” which, by
regulation, is defined as “significant habitat modification or degradation which actually kills or
injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding
or sheltering”.
From ESA implementing regulations in 50CFR 17.3:
Harm in the definition of ``take'' in the Act means an act which actually kills or injures
wildlife. Such act may include significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering.
CWA (1977 amendment to 1972 Federal Pollution Control Act)
Goal: “Restore and maintain the chemical, physical
and biological integrity of the Nation’s waters”.
Anti-degradation requirement: “Existing instream water uses and the level of water quality
necessary to protect the existing uses shall be maintained and protected.”
From the implementing regulations for section 404. 40 CFR 232.3 c(6)
The Nationwide Exemption for Forest Roads
“Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining
equipment, where such roads are constructed and maintained in accordance with best
management practices (BMPs) to assure that flow and circulation patterns and chemical and
biological characteristics of waters of the United States are not impaired…The BMPs which must
be applied to satisfy this provision include the following baseline provisions:
(vii) The design, construction and maintenance of the road crossing shall not disrupt the
migration or other movement of those species of aquatic life inhabiting the water body…”
40CFR 230.10 ..No discharge of dredged or fill material shall be permitted which will cause or
contribute to significant degradation of the waters of the United States…Under these Guidelines,
effects contributing to significant degradation considered individually or collectively, include:
c(3) Significantly adverse effects…on aquatic ecosystem diversity, productivity, and
stability. Such effects may include, but are not limited to, loss of fish and wildlife habitat.
Impacts that should be considered in determining compliance with 230.10 are further described in
40CFR 230.31(b): “The discharge of dredged or fill material can redirect, delay, or stop the
reproductive and feeding movements of some species of fish and crustacea, thus preventing their
aggregation in accustomed places such as spawning or nursery grounds and potentially leading
to reduced populations.”
1976 National Forest Management Act
The Act includes requirements for forest planning procedures that keep desired aquatic
organisms well distributed throughout their range, protect diversity generally, and protect against
blockages of water courses and other impacts to fish habitat.
Section 1604(g)(3)(B): (land management guidelines must) “provide for diversity of plant and
animal communities.”
From the implementing regulations:
36 CFR 219.27(g) “Management prescriptions, where appropriate and to the extent practicable,
shall preserve and enhance the diversity of plant and animal communities, including endemic and
desirable naturalized plant and animal species, so that it is at least as great as that which would
be expected in a natural forest expect biodiversity in the managed forest to be at least as great as
that in a natural forest.
36 CFR 219.27(e): “No management practices causing…blockages of water courses, or deposits
of sediment shall be permitted within these (riparian) areas which seriously and adversely affect
water conditions or fish habitat.”
36 CFR 219.19 “Fish and wildlife habitat shall be managed to maintain viable populations of
existing native and desired non-native vertebrate species…a viable population (is) one which has
the estimated numbers and distribution of reproductive individuals to ensure its continued
existence is well distributed…habitat must be well distributed so that those individuals can
interact with others…”.