Essential Fish Habitat Conservation

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

2. 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

3. 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.

4. 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.

5. 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.”

6. 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) • 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)

7. 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 • Federal Agencies: • Must consult with NMFS on any proposed action that may adversely affect EFH

8. 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.

9. EFH Maps Visit the EFH Mapper at www.habitat.noaa.gov/efhmapper

10. 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

11. 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 • Since 2004, NOAA and the Councils have protected • nearly 1 billion acres of EFH from harmful fishing practices.

12. Federal agency consultation • Federal agencies mustconsult 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

13. 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 • Avoidimpact to EFH • Minimizeimpact to EFH • Offsetunavoidable impact to EFH • AA Responds to NOAA Within 30 days of receiving EFH CRs, at least 10 days prior to final approval

14. Step 1: Notification & Affect Determination Coast Guard calling! I’m here to help!

15. 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 See50 CFR §600.810

16. 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

17. Step 2: EFH Assessment (continued) Level of detail commensurate with: • Complexity of action • Magnitude of adverse effects

18. 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.

19. 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.

20. 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 Additional steps as necessary: • NOAA Fisheries requests meeting to discuss responses • Supplemental consultation if project is modified

21. Emergency consultation Work with NOAA on emergency response planning Can consult after-the-fact if necessary

22. 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.”

24. Programmatic consultation • Covers many individual actions in a single consultation. • Programmatic EFH Conservation Recommendationsagreed 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

25. 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

26. Coordination with Fishery Management Councils Fishery management councils may also comment on actions that affect the habitat of a fishery resource under its authority See50 CFR §600.30 Council comments and recommendations to Federal and state agencies • 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.

27. 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

28. 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

29. EFH Resources: EFH essentials: • 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