Essential Fish Habitat Conservation

Magnuson-Stevens Fishery Conservationand Management Act

Korie SchaefferWest Coast RegionJune 4, 2014

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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

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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.

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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 PacificMid-Atlantic PacificSouth Atlantic Western PacificGulf of MexicoCaribbean

• Fishery management councils develop Fishery Management Plans (FMPs) for each species or stock it manages.

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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.”

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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)

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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

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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.

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EFH Maps

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

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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

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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 protectednearly 1 billion acres of EFH from harmful fishing practices.

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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

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EFH Consultation process

1) Action agency (AA) provides notification to NOAA Early coordination important

2) AA submits EFH Assessment to NOAA At least 90 days prior to a final decision on action

3) 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

4) AA Responds to NOAAWithin 30 days of receiving EFH CRs, at least 10 days prior to final

approval

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Step 1: Notification & Affect Determination

Coast Guard calling!

I’m here to help!

May adversely affect EFH?

Yes

Must consult with NOAA

No

Consultation not required

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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

See 50 CFR §600.810

Step 1: Affect Determination (continued)

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Step 2: The EFH AssessmentMandatory 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

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Step 2: EFH Assessment (continued)

Level of detail commensurate with:

• Complexity of action• Magnitude of adverse

effects

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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.

Step 3: NOAA Response

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Example Action:Shoreline stabilization at Base Support Unit Alameda, Coast Guard Island, California.

Step 3: NOAA Response (continued)

NOAA’s EFH Conservation Recommendation:

Pre- and post-construction eelgrass surveys and mitigation if eelgrass loss occurs due to project.

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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

Step 4: Federal Agency Response

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

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Emergency consultation

Work with NOAA on emergency response planning

Can consult after-the-fact if necessary

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Use of Existing ProceduresEncourage 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.”

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EFH ≠ Critical HabitatStatute MSA ESA

Species Managed - FMP Listed

Basis Science only Science, economics, national security

Purpose Sustainable fishery, healthy ecosystem

To promote survivaland recovery

CriteriaSpawning, breeding, feeding, or growth to

maturityPrimary Constituent

Elements (PCEs)

Relative scope Broad Narrow

Example difference

Pacific Salmon: marine nearshore & offshore

Pacific Salmon:marine nearshore only

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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

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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

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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

Coordination with Fishery Management Councils

Winthrop Beach RestorationMass. 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.

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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

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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

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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