Essential Fish Habitat Conservation Magnuson-Stevens Fishery Conservation and Management Act Korie Schaeffer West Coast Region June 4, 2014

Topics covered today: Fisheries management under the Magnuson-Stevens Act (MSA) What is EFH? Federal requirements for protecting EFH Steps in the EFH consultation process Mechanisms to streamline and improve coordination Today I’m going to give you Short overview of the MSA and the federal fishery management process Background on the EFH authority, including Context on NOAA and council requirements Focus on EFH consultation process and Mechanisms to streamline the consultation process.

Magnuson-Stevens Fishery Conservation & Management Act Establishes a national program for the conservation and management of the fishery resources of the United States to: prevent overfishing, rebuild overfished stocks, ensure conservation, facilitate long-term protection of essential fish habitats, and realize the full potential of the Nation’s fisheries. The MSA establishes a national program to Conserve and manage living marine resources found off the coasts and continental shelf of the US and anadromous species. Promote domestic commercial and recreational fishing Promote the protection of habitats essential to fishery resources

Magnuson-Stevens Fishery Conservation & Management Act Establishes jurisdiction over marine fisheries in the U.S. EEZ by 8 regional fishery management councils: Fishery Management Councils: New England North Pacific Mid-Atlantic Pacific South Atlantic Western Pacific Gulf of Mexico Caribbean Fishery management councils develop Fishery Management Plans (FMPs) for each species or stock it manages. MSA also establishes 8 regional councils to oversee management. Councils include members from Commercial and recreational fishing industries, Environmental groups, States, NOAA, and other federal agencies, including the Coast Guard. There are 3 Councils covering the Pacific Ocean and 5 Atlantic Councils. NOAA maintains authority over Atlantic HMS that span the jurisdictions of 5 Atlantic councils Councils develop FMPs that include conservation and management measures necessary for species and stocks under its authority.

Magnuson-Stevens Fishery Conservation & Management Act “…direct and indirect habitat losses… have resulted in a diminished capacity to support existing fishing levels.” “One of the greatest long-term threats to the viability of commercial and recreational fisheries is the continuing loss of marine, estuarine, and other aquatic habitats.” In addition to fishery management measures… MSA also recognizes that multiple competing uses for coastal and marine resources threaten the sustainability of commercial and recreational fisheries. These competing uses are acknowledged in MSA with statements On how they have contributed to the loss of habitat that has reduced capacity to support fishing levels. And that habitat loss is one of the greatest long-term threats to commercial and recreational fisheries.

What is Essential Fish Habitat? “Essential fish habitat means those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity.” - MSA §3 (10) To address these concerns, MSA established requirements for conserving “Essential Fish Habitat” (EFH). EFH is defined as waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. Essentially all habitat necessary for managed species to complete their life cycle Includes both the terms waters and the substrate necessary to fish. Not just bottom habitats Characteristics of the water column Can also include prey as component of feeding habitat EFH can be described within state waters Only designated for federally managed fish species. No EFH for striped bass, blue crab, or other species managed at the state level. EFH is designated by the Fishery Management Councils and described in FMPs EFH is designated by the Fishery Management Councils EFH is described for federally managed species EFH information is included in federal fishery management plans (FMPs)

EFH conservation requirements Fishery Management Councils: Describe and identify EFH by life stage Display geographic locations of EFH in maps May designate Habitat Areas of Particular Concern (HAPCs) Minimize adverse effects of fishing on EFH NOAA, other federal agencies, and regional fishery management councils have joint responsibility to conserve EFH This slide gives an overview of the requirements outlined in MSA and the EFH regulatory guidelines. As I just mentioned, Fishery Management Councils Describe EFH Create maps of EFH Can designate HAPCs (I’ll describe in a minute) And MUST minimize effects of fishing on EFH. Federal Agencies must consult on non-fishing impacts to EFH. Federal Agencies: Must consult with NMFS on any proposed action that may adversely affect EFH

EFH description To identify EFH for Pacific groundfish, NMFS developed a GIS-based assessment model that looked at the occurrence of 82 species of groundfish (by lifestage) in relation to depth, latitude, and substrate type. Ultimately the Council identified groundfish EFH as all waters from the high tide line (and parts of estuaries) to 3,500 meters (1,914 fathoms) in depth. Fishery Management Plans include descriptions of EFH in text and maps This Text description is legal description of EFH Is usually described for each life stage of each species. Example on slide: Atlantic Cod. It includes Physical features (like temperature, salinity); Geographic features (like the Gulf of Maine or Delaware Bay) Substrate features (like gravel, cobble) This is the information that federal agencies should use when determining impacts of their projects on EFH.

Visit the EFH Mapper at www.habitat.noaa.gov/efhmapper EFH Maps Fishery Management Plans also contain maps of EFH Text description is ultimate legal authority EFH Maps complement Text Descriptions, help managers and public visualize the location of important habitat for each fish species.   Here is a map of Atlantic cod EFH, as shown on our EFH Mapper. Visit the EFH Mapper at www.habitat.noaa.gov/efhmapper

Habitat Areas of Particular Concern HAPCs are subsets of EFH Purpose is to focus conservation efforts HAPC Criteria Ecological functions provided Sensitivity to human-induced degradation Rarity of habitat type Stress from development activities Increased scrutiny in consultation process The EFH regulatory guidelines include a definition for Habitat Areas of Particular Concern. HAPCs are a subset of EFH Purpose is to highlight especially important areas AND focus conservation efforts. EFH regs describe 4 criteria that should be used when designating HAPCs.   These are areas that NOAA will prioritize during the consultation process. May provide stronger conservation recommendations to protect from impacts of proposed federal actions.

Minimizing fishing impacts on EFH Councils are required to minimize, to the extent practicable, adverse effects caused by fishing - MSA § 303(a)(7) Alaska Seamount Habitat Protection Area Fishing with bottom contact gear prohibited to protect deep-sea corals and EFH for groundfish, king crab, and Pacific salmon Fishery management councils are required to minimize adverse effects of fishing on EFH The councils have taken great sacrifice to protect nearly 1 billion acres of EFH from fishing gear impacts since 2004. Example: Alaska Seamount Habitat Protection Area NPFMC prohibiting bottom-tending fishing gear To protect important habitat for DSCs, g-fish, king crab. Since 2004, NOAA and the Councils have protected nearly 1 billion acres of EFH from harmful fishing practices.

Federal agency consultation Federal agencies must consult with NOAA on actions that may adversely affect EFH 5,000+ federal actions every year ~350 with U.S. Coast Guard since 2008 Regulatory guidelines at 50 CFR 600.905 - 930 Your responsibilities as federal action agencies…. NOAA works with federal agencies to protect EFH from the impacts of non-fishing activities Federal agencies consult with NOAA on any action or proposed action that may adversely affect EFH. Will go into more detail on that term in a minute. NOAA and Coast Guard have completed ~350 consultations since 2008. Majority in the Southeast (NC – TX, + PR, USVI) Actions range from large-scale ocean uses, offshore oil and gas development sand mining coastal dredging projects… Smaller scale projects Bridge construction Dock and pier construction Buoy placement wastewater discharges NOAA published guidelines in the CFR for implementing the EFH coordination and consultation provisions of MSA.

EFH Consultation process Action agency (AA) provides notification to NOAA Early coordination important AA submits EFH Assessment to NOAA At least 90 days prior to a final decision on action NOAA provides EFH Conservation Recommendations, if necessary Within 30-60 days of receiving the completed EFH Assessment Avoid impact to EFH Minimize impact to EFH Offset unavoidable impact to EFH AA Responds to NOAA Within 30 days of receiving EFH CRs, at least 10 days prior to final approval Steps of the EFH consultation process (will go into more detail over next slides) Federal action agency notifies NOAA of a proposed activity that may adversely affect EFH. Initiates consultation. If action would not adversely affect EFH, no consultation required. May adversely affect EFH, action agency submits EFH Assessment. NOAA reviews the EFH assessment Provides EFH Conservation Recommendations Recommendations can be to avoid, minimize, or offset the adverse effect. Federal agency responds w/in 30 days

Step 1: Notification & Affect Determination May adversely affect EFH? Yes Must consult with NOAA No Consultation not required Coast Guard calling! First step: notification by the federal action agency about a proposed activity that may adversely affect EFH. Encourage agencies to notify NOAA as early as practicable. Early coordination can help action agencies incorporate conservation measures into their early planning documents. This saves time and minimizes conflict later in the project planning. The clock on the consultation doesn’t start, so no harm in contacting NOAA early After discussing with NOAA, the action agency determines whether the proposed activity may adversely affect EFH. YES = Required to consult with NOAA NO = No consultation necessary I’m here to help!

Step 1: Affect Determination (continued) Adverse effect: Any impact reducing EFH quality and/or quantity Direct impacts (e.g. contamination, physical damage caused by anchors, construction) Indirect impacts (loss of prey, reduction in species’ fecundity, etc.) Site-specific impacts Habitat-wide impacts (including individual, cumulative, or synergistic) Actions occurring within or outside of EFH What is an adverse effect? Threshold very low. Adverse effect = any action that reduces quantity or quality of EFH. Can happen outside of EFH. For example, delivery of sediment to stream from upstream or land-based construction activities, or deforestation projects that will affect water quality in riverine and estuarine habitats Given scope of EFH, difficult to conceive of situations involving active construction in EFH that would not require consultation. See 50 CFR §600.810

Step 2: The EFH Assessment Mandatory contents: Description of proposed action Analysis of potential adverse effects Conclusions regarding effects of the action Proposed mitigation, if applicable May also include: Results of site survey Expert opinions Literature review Alternatives analysis Other information as appropriate Determined that the action may adversely affect EFH, then you must initiate consultation with NOAA. Consultation initiated when a complete EFH assessment is submitted. This should be done as soon as practicable, but at least 90 days before final decision. This submission of a complete EFH assessment starts the consultation “clock”. Mandatory contents: Description of proposed action Analysis of potential adverse effects Conclusions regarding effects of the action Proposed mitigation, if applicable May also include: Results of site survey Expert opinions Literature review Alternatives analysis Other information as appropriate Guidance on EFH assessments provided.

Step 2: EFH Assessment (continued) Level of detail commensurate with: Complexity of action Magnitude of adverse effects The level of detail in the EFH Assessment should be commensurate with the complexity and magnitude of the potential effects. For simple actions involving minor adverse effects on EFH, assessment may be very brief. Larger projects would require a more detailed assessment of potential impacts

Step 3: NOAA Response If Action WOULD adversely affect EFH: NOAA provides EFH Conservation Recommendations to avoid, minimize, mitigate, or otherwise offset adverse effects. NOAA has 30-60 days to provide EFH Conservation Recommendations. Abbreviated consult= 30 days to respond (not likely to cause substantial adverse effects) Expanded consult = 60 days to respond (would cause substantial adverse effects) If action would NOT adversely affect: Consultation is complete. After reviewing the EFH assessment… NOAA has 30-60 days to determine if the proposed action WOULD adversely affect EFH. If so, provide EFH Conservation Recommendations For actions not likely to cause substantial adverse effect  Abbreviated  30 days to respond Actions that would cause substantial adverse effect  Expanded  60 days to respond NOT Adversely Affect = No consultation

Step 3: NOAA Response (continued) Example Action: Shoreline stabilization at Base Support Unit Alameda, Coast Guard Island, California. NOAA’s EFH Conservation Recommendation: Pre- and post-construction eelgrass surveys and mitigation if eelgrass loss occurs due to project. Example of past consultation with USCG Maintenance dredging at USCG Station Fortescue. NOAA’s EFH CR was a timing restriction to protect habitat for winter flounder spawning adults and eggs.

Step 4: Federal Agency Response 30 days to respond in writing: Measures to address impacts If EFH CRs not followed, explain why Scientific basis for any disagreement on effects or EFH CRs Federal action agencies must respond in writing to NOAA within 30 days of receiving EFH Conservation Recommendations The consultation is NOT COMPLETE until the agency has responded to NOAA with info on: Description of measures to address impacts Explain why any EFH CRs will not be followed Provide scientific basis for any disagreement on effects or EFH CRs EFH guidelines allow the NOAA Fisheries AA to request further review of Federal action agency decisions that are contrary to NOAA’s recommendations. Additional steps as necessary: NOAA Fisheries requests meeting to discuss responses Supplemental consultation if project is modified

Emergency consultation Work with NOAA on emergency response planning Can consult after-the-fact if necessary Consultation is required for emergency Federal actions that may adversely affect EFH. This includes Hazardous material clean-up, Response to natural disasters, And actions to protect public safety. Federal agencies should contact NOAA early in emergency response planning May consult after-the-fact if consultation on an expedited basis is not practicable before taking the actions.

Use of Existing Procedures Encourage using existing environmental review procedures e.g., ESA, FWCA, NEPA Timely notification to NOAA Fisheries Assessment of impacts must meet EFH requirements Description of action, adverse effects, conservation measures, etc. do not need to be repeated: “The description of action is in Section 2 of the biological assessment.” “The effects of the action are as described in Section 3 of the biological assessment.” Several mechanisms to streamline consultation process. EFH regs encourage use of existing environmental review procedures to satisfy EFH consultation requirements EX) Combine EFH consultation with ESA Section 7, FWCA, or NEPA review. In 2001, NMFS issued a finding that all federal agencies can use ESA Section 7 consultations to satisfy their EFH consultation requirements. Timeline of the existing procedure is used. However, the agency must still provide timely notification of action to NOAA’s Habitat program (60 days, 90 days for actions with substantial impact) Assessment of impacts in the ESA consultation must meet EFH requirements: Description of action, adverse effects, conservation measures, etc. No need to repeat info

EFH ≠ Critical Habitat Statute MSA ESA Species Managed - FMP Listed Basis Science only Science, economics, national security Purpose Sustainable fishery, healthy ecosystem To promote survival and recovery Criteria Spawning, breeding, feeding, or growth to maturity Primary Constituent Elements (PCEs) Relative scope Broad Narrow Example difference Pacific Salmon: marine nearshore & offshore Pacific Salmon: marine nearshore only Important to note differences when combining EFH and ESA Section 7 consultations: EFH ≠ Critical Habitat EFH species and ESA species may have different habitat needs EFH and critical habitat for the same species may not be the same. Slide gives overview of the difference between EFH and Critical habitat. You see that even for the same species, EFH is broader than critical habitat, so impacts to EFH still need to be assessed.

Programmatic consultation Covers many individual actions in a single consultation. Programmatic EFH Conservation Recommendations agreed upon. Examples: Army Corps dredging in San Francisco Caltrans in California USCG oil spill response activities under the NW Area Contingency Plan USCG Aids to Navigation Programmatic consultation is a mechanism for implementing the EFH consultation requirements efficiently and effectively. Goal: Address as many adverse effects as possible through programmatic EFH CRs. If sufficient information is available to: develop CRs that will address all reasonably foreseeable adverse impacts on EFH of an entire program, parts of a program, or a number of similar individual actions occurring within a given geographic area. Examples of programs covered by programmatic EFH consultations: Army Corps dredging in New England BOEM regional 5-year oil and gas plans. USCG oil spill response activities under the NW Area Contingency Plan NOAA and Federal agency agree to programmatic EFH CRs. Any adverse effect that cannot be addressed through programmatic EFH CRs will have to be addressed through individual consultation Usually occur at a regional level.

General Concurrence Suite of similar actions that are: Similar in their impact on EFH Do not cause greater than minimal adverse effects on EFH when implemented individually Do not cause greater than minimal cumulative adverse effects on EFH Monitoring of activities necessary No further consultation required General Concurrence used to identify specific types of Federal actions that may adversely affect EFH, but no further consultation required…. Because NOAA determined that they will likely result in no more than minimal adverse effects to EFH individually and/or cumulatively. Comparable to a categorical exclusion under NEPA: Dispenses with the need for more formal environmental review for identified types of actions with minimal effect that can be evaluated as a group. Used for categories of Federal actions that are similar in nature and similar in their impact on EFH. Criteria for General Concurrences Actions are similar in nature and similar in their impact on EFH. (e.g., construction of boat docks of certain dimensions) Actions must not cause greater than minimal adverse effects on EFH when implemented individually; and Actions must not cause greater than minimal cumulative adverse effects on EFH (would not cause incremental impacts that would result in a substantive reduction in the quality and quantity of EFH when considered collectively)

Coordination with Fishery Management Councils Fishery management councils may also comment on actions that affect the habitat of a fishery resource under its authority See 50 CFR §600.30 Council comments and recommendations to Federal and state agencies Fishery management councils may also provide comments to federal agencies…. The councils have a keen interest in expanding the use, so don’t be surprised if you hear from a fishery management council. Fishing industry has a strong voice and local support. I’m not aware of a case where a council has provided recs to Coast Guard. Here is Example where NOAA and NEFMC influenced Army Corps decision at Winthrop Beach, MA Extract sand and gravel from >100 acres of offshore habitats 26 federally managed species, including Atlantic cod. NEFMC agreed with NOAA Council raised their concerns to the Army Corps Resulted in denial of permit and identification of alternative sources. Last year NPFMC established procedures for the Council’s engagement. Winthrop Beach Restoration Mass. sought permit to mine offshore sand & gravel NEFMC weighed in on impacts to juvenile cod EFH Result: Army Corps denied permit; alternative source of substrate identified.

Summary EFH is designated for all species managed by a Fisheries Management Council EFH = waters and substrate necessary for spawning, breeding, feeding, and growth to maturity Managed species include salmon, groundfish, pelagic species, highly migratory species, corals, and more HAPCs merit additional scrutiny in consultation process Conclude with a summary of key points

Summary continued… Consultation required for any action that “may adversely affect” EFH NOAA provides EFH Conservation Recommendations Can incorporate EFH consultation into existing review procedures EFH differs from critical habitat under the ESA

EFH Resources: EFH essentials: Guidance documents: EFH website: http://www.habitat.noaa.gov/efh EFH Final Rule: http://www.nero.noaa.gov/hcd/efhfinalrule.pdf Magnuson-Stevens Fishery Conservation & Management Act: http://www.nmfs.noaa.gov/sfa/magact/MSA_Amended_2007%20.pdf EFH Mapper and Data Inventory: http://www.habitat.noaa.gov/efhmapper Guidance documents: EFH Consultation Guidance: http://www.habitat.noaa.gov/pdf/efhconsultationguidancev1_1.pdf Preparing EFH Assessments: http://www.habitat.noaa.gov/pdf/preparingefhassessments.pdf Contact info: http://www.habitat.noaa.gov/protection/efh/regionalcontacts.html