MAY 1997 NUMBER 32








EDITORS NOTE: One of the accomplishments of the 104th Congress was the passage of the Magnuson-Stevens Fishery Management and Conservation Act (now known as the Magnuson-Stevens Act).

Currently, the National Marine Fisheries Service is soliciting comments on the proposed rule to implement the Act’s requirement regarding essential fish habitat (EFH). This regulation is important because it will guide NMFS and the Regional Fishery Management Council’s habitat actions for years to come. 

Because of the importance of this rulemaking, we are publishing this special issue of the Habitat Hotline to provide our readers the full text of the proposed rule. In a previous Habitat Hotline (Number 30), we published a draft framework of this rule; this proposed rule incorporates changes reflecting some of the public comments received by NMFS.

We have also included an "Updates" section in the back of this issue to inform you of other fish habitat news.


BACKGROUND: The Magnuson-Stevens Fishery Conservation and Management Act (Act) was originally passed in 1976. The Act gave the federal government jurisdiction to regulate fishing activities offshore of the United States from three miles out to 200 miles (exception: the states of Texas and Florida have jurisdiction from zero to nine miles.) This federally managed area is referred to as the Economic Exclusive Zone (EEZ). The main purposes of the Act were to "Americanize" the fishery (i.e., to replace foreign fishing vessels with American vessels) and to prevent overfishing. The Act also established the eight regional fishery management councils (Councils). The Councils are charged with managing the harvest of fish and shellfish in the EEZ, which is accomplished, in part, through Fishery Management Plans (FMPs). The Pacific Fishery Management Council (whose member states are Idaho, California, Oregon, and Washington) has three FMPs: salmon, groundfish (e.g. rockfish, sablefish, and whiting) and northern anchovy.


The Magnuson-Stevens Fishery Conservation and Management Act included language strengthening the roles that the National Marine Fisheries Service and regional fishery management councils play in habitat protection. In developing the proposed rule to implement the habitat provisions contained in the Act, NMFS solicited comments on November 8, 1996 and January 9, 1997 (See Habitat Hotline Number 30).

According to NMFS, the "Framework for the Description, Identification, Conservation and Enhancement of Essential Fish Habitat" received 88 comments. The "principal" comments on the framework, according to NMFS, focused on eight issues. Below is a summary of those issues and NMFS’ response:

Summary of Principal Comments
Issue 1: Species of fish for which the Councils must describe and identify EFH. NMFS received comments suggesting that EFH should be described and identified for only those species managed by a Council in an FMP. Other interpretations suggested that "fish" includes all species inhabiting the geographic jurisdiction of a Council. The latter interpretation could include species not currently managed, but considered important by the Council. NMFS concludes that Councils should describe and identify EFH for only those species managed under an FMP. According to the Magnuson-Stevens Act, EFH can only be designated through an amendment to an FMP. The Council would not be precluded from identifying the habitat required by other species not covered in an FMP and taking steps to protect it. To the extent that such habitat requirements enhance the ecosystem approach to FMPs, the Councils would be encouraged to identify such habitat. However, those habitats of currently non-managed species would not be considered EFH.

Issue 2: Timing of the development of EFH recommendations by NMFS. Some commentors suggested that EFH for all species within a fishery management unit must be completed simultaneously. Other commentors suggested that EFH be described for only those species whose catch is a significant component of the fishery. NMFS has concluded that the law requires the Councils to identify EFH for all managed species within its jurisdiction within the Act’s EFH amendment period. The Technical Guidance Manual [*] suggests several ways that Councils may perform this task more efficiently.

*Related Documents: Concurrent with publication of this proposed rule, NMFS will make available "Technical Guidance to Implement the Essential Fish Habitat Requirements for the Magnuson-Stevens Act." This manual provides supplemental information for developing EFH recommendations and FMP amendments. The document is intended to be updated regularly as new and innovative methods are available in habitat identification and mapping. The Technical Guidance Manual is based on and will contain similar detail to that included in the Framework. The draft manual is available for comment and may be obtained from NMFS.

Issue 3: Identification of EFH for prey species. Some comments suggested that EFH be identified for all prey species, as opposed to just the predominant prey species. Other comments suggested that identification of EFH for prey species was unnecessary because their habitat requirements are covered by the range of EFH for the managed species. NMFS has concluded that the habitat of prey species would not be included as EFH for managed species. Rather, Councils would identify the major prey species for the species managed under the FMP, and would describe the habitat of significant prey species to help in determining if there are activities that would adversely affect their habitat. This analysis would be included in the "adverse effects" section of the EFH FMP amendment, rather than the description and identification of EFH section. The Councils should consider loss of prey habitat as an adverse effect on a managed species.

Issue 4: Interpretation of what habitat is "necessary" for spawning, breeding, feeding, and growth to maturity. In the Framework, NMFS interpreted "necessary" to mean the amount of habitat needed to support a target production level which included, at a minimum, maximum sustainable yield of the fishery plus other ecological benefits such as being prey for other living marine resources. Many commentors were concerned that this connection was too narrow and suggested that either it not be included in the guidelines, thereby coupling EFH only to feeding, breeding, and growth to maturity, or expanding the definition. NMFS has concluded that the goal of linking "necessary" to production is appropriate, however, this objective has now been defined as the production necessary to support a sustainable fishery and a healthy ecosystem.

Issue 5: Intent of the EFH amendments in relation to fishing. NMFS received comments that clarification is needed regarding fishing in areas identified as EFH. NMFS has now clarified that the intent is not to preclude fishing in areas identified as EFH. Rather, the intent is to refine the Council’s and NMFS’ abilities to manage fishing activities by taking into account the increasing knowledge and understanding of the importance of habitat, and taking actions to minimize adverse impacts from fishing, to the extent practicable.

Many comments requested guidance on how the Councils would determine when a fishing activity has an adverse impact requiring action. NMFS has provided additional guidance on this concern by proposing to require an assessment of the impacts of all gear types used in the EFH. The assessment would consider closure areas for research to evaluate impacts. The Councils would act to prevent, mitigate, or minimize any adverse impacts from fishing, to the extent practicable, if there is evidence that a fishing practice is having a substantial adverse impact on EFH based on the assessment.

Issue 6: Interpretation of "to the extent practicable". No guidance was provided in the Framework on the exact meaning of the phrase. Some commentors expressed concern that a lack of guidance risked no additional actions being taken by Councils. Others expressed the opinion that the impacts of fishing were already known, and suggested closure areas to protect sensitive habitats. Cost-benefit analysis was also suggested. NMFS has provided additional guidance within the proposed rule. The regulation states that in determining whether minimizing an adverse impact from fishing is practicable, Councils should consider: 1) Whether, and to what extent, the fishing activity is adversely impacting the marine ecosystem, including the managed species; 2) the nature and extent of the adverse effect on EFH; and 3) whether the cost to the fishery is reasonable.

Issue 7: NMFS’ interpretation of "substrate". Commentors suggested it be modified to include artificial reefs and shipwrecks as EFH. NMFS agrees with this modification and clarifies that artificial reefs and shipwrecks could be identified as EFH.

Issue 8: Notification of projects under general concurrence. Several comments were received on general concurrences, suggesting that if no notification is required for projects that fall within a general concurrence category, NMFS would be unable to track the cumulative effects of these categories of activities. NMFS continues to state in the regulation that no notice of those actions covered by a general concurrence would be required, but only if a process is in place by the action agency to adequately assess cumulative impacts.

Comments were also received concerning opportunities for public review of general concurrences prior to final approval and implementation. Commentors were concerned that general concurrences could be established that would exempt specific activities from the consultation process without an opportunity for public review. NMFS has provided in the regulations that it would use public Council meetings, or other means, to provide opportunities for public comment on general concurrences prior to formalization. If Council review is not available, NMFS would provide other reasonable means for public review.

A copy of the proposed EFH rule can be found on pages 5 through 17. A summary of the proposed rule from the April 23, 1997 Federal Register (Vol. 62, No. 78) is reprinted below: SUMMARY: NMFS proposes to issue regulations containing guidelines for the description and identification of essential fish habitat (EFH) in fishery management plans (FMPs), adverse impacts on EFH [including potential impacts from fishing], and actions to conserve and enhance EFH. The regulations would also provide a process for NMFS to coordinate and consult with Federal and state agencies on activities that may adversely affect EFH. The guidelines are required by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The purpose of the rule is to assist Fishery Management Councils (Councils) in fulfilling the requirements set forth by the Magnuson-Stevens Act to amend their FMPs to describe and identify EFH, minimize adverse effects on EFH, and identify other actions to conserve and enhance EFH. The coordination and consultation provisions would specify procedures for adequate consultation with NMFS on activities that may adversely affect EFH. WHAT YOU CAN DO: The new habitat requirements in the Magnuson-Stevens Act are a step forward for habitat protection. However, the fishing industry must continue to stress the importance of healthy fish habitat to resource agencies and lawmakers at the federal and state levels, as well as to the general public. 



Comments should be sent to:


The Director, Office of Habitat Conservation
Attention: EFH
National Marine Fisheries Service
1315 East-West Highway
Silver Spring, MD 20910-3282
Comments can also be faxed to (301) 713-1043.
*** Comments must be received by ***
May 23, 1997

The National Marine Fisheries Service (NMFS), Office of Habitat Conservation, will hold two public meetings on the West Coast to receive comments on its proposed EFH rule. For further information on these meetings contact the National Marine Fisheries Service’s Northwest Regional Office at (503) 230-5421, or the Alaska Regional Office at (907) 586-7235.


For an Electronic Copy of the proposed rule, via the Internet, go to the following address:


For Further Information Contact: Lee Crockett of National Marine Fisheries Service at (301) 713-2325.


Proposed Rule: Essential Fish Habitat *
Definitions Essential fish habitat means those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. For the purpose of interpreting the definition of essential fish habitat: "waters" includes aquatic areas and their associated physical, chemical, and biological properties that are used by fish, and may include areas historically used by fish where appropriate; "substrate" includes sediment, hard bottom, structures underlying the waters, and associated biological communities; "necessary" means the habitat required to support a sustainable fishery and a healthy ecosystem; and "spawning, breeding, feeding, or growth to maturity" covers a species’ full life cycle.

3. A new subpart is added to part 600 to read as follows:

Subpart I -- Essential Fish Habitat (EFH) 600.805 Purpose and scope 600.810 Contents of Fishery Management Plans

600.815 Coordination and consultation on actions that may adversely affect EFH
Purpose and scope (a) Purpose. This subpart provides guidelines for the description, identification, conservation, and enhancement of, and adverse impacts to, EFH. These guidelines provide the basis for Councils and the Secretary to use in adding the required provision on EFH to an FMP, i.e., description and identification of EFH, adverse impacts on EFH (including minimizing, to the extent practicable, adverse impacts from fishing), and other actions to conserve and enhance EFH. This subpart also includes procedures to implement the consultation requirements for all Federal and state actions that may adversely affect EFH.

(b) Scope. An EFH provision in an FMP must include all fish species in the FMU. An FMP may describe, identify, and protect the habitat of species not in an FMU; however, such habitat may not be considered EFH for the purposes of sections 303(a)(7) and 305(b) of the Magnuson Act.
Contents of Fishery Management Plans
  1. Mandatory contents --
(1) Habitat requirements by life history stage. FMPs must describe EFH in text and with tables that provide information on the biological requirements for each life history stage of the species. These tables should summarize all available information on environmental and habitat variables that control or limit distribution, abundance, reproduction, growth, survival, and productivity of the managed species. Information in the tables should be supported with citations.

(2) Description and identification of EFH --
    1. Information requirements. 
(A) An initial inventory of available environmental and fisheries data sources relevant to the managed species should be useful in describing and identifying EFH. This inventory should also help to identify major species-specific habitat data gaps. Deficits in data availability (i.e., accessibility and application of the data) and in data quality (including considerations of scale and resolution; relevance; and potential biases in collection and interpretation) should be identified.

(B) To identify EFH, basic information is needed on current and historic stock size and on the geographic range of the managed species. Information is also required on the temporal and spatial distribution of each major life history stages (defined by developmental and functional shifts). Since EFH should be identified for each major life history stage, data should be collected on the distribution, density, growth, mortality, and production of each stage within all habitats occupied by the species. These data should be obtained from the best available information, including peer-reviewed literature, data reports and "gray" literature, data files of government resource agencies, and any other sources of quality information.

(C) The following approach should be used to gather and organize the data necessary for identifying EFH. Information from all levels will be useful in identifying EFH, and the goal of this procedure should be to include as many levels of analysis as possible within the constraints of the available data. Councils should strive to obtain data sufficient to describe habitat at the highest level of detail (i.e., Level 4). (1) Level 1: Presence/ absence distribution data are available for some or all portions of the geographic range of the species. At this level, only presence/absence data are available to describe the distribution of a species (or life history stage) in relation to existing and potential habitats. Care should be taken to ensure that all habitats have been sampled adequately. In the event that distribution data are available for only portions of the geographic area occupied by a particular life history stage of a species, EFH can be inferred on the basis of distributions among habitats where the species has been found and on information about its habitat requirements and behavior.

(2) Level 2: Habitat-related densities of the species are available. At this level, quantitative data (i.e., relative densities) are available for the habitats occupied by a species or life history stage. Because the efficiency of sampling gear is often affected by habitat characteristics, strict quality assurance criteria are required to ensure that density estimates are comparable among habitats. Density data should reflect habitat utilization, and the degree that a habitat is utilized is assumed to be indicative of habitat value. When assessing habitat value on the basis of fish densities in this manner, temporal changes in habitat availability and utilization should be considered.

(3) Level 3: Growth, reproduction, or survival rates within habitats are available. At this level, data are available on habitat-related growth, reproduction, and/or survival by life history stage. The habitats contributing the most to productivity should be those that support the highest growth, reproduction, and survival of the species (or life history stage).

(4) Level 4: Production rates by habitat are available. At this level, data are available that directly relate the production rates of a species or life history stage to habitat type, quantity, quality, and location. Essential habitats are those necessary to maintain fish production consistent with a sustainable fishery and a healthy ecosystem.
(ii) EFH determination. (A) The information obtained through the analysis in paragraph (a)(2)(i) of this section will allow Councils to assess the relative value of habitats. Councils should apply this information in a risk-averse fashion, erring on the side of inclusiveness to ensure adequate protection for EFH of managed species. If only Level 1 information is available, EFH is everywhere a species is found. If Levels 2 through 4 information is available, habitats valued most highly through this analysis should be considered essential for the species. However, habitats of intermediate and low value may also be essential, depending on the health of the fish population and the ecosystem.

(B) If a species is overfished or recovering from a population decline, all habitats used by the species should be considered essential in addition to certain historic habitats that are necessary to support the recovery of the population and for which restoration is feasible.

(C) EFH will always be greater than or equal to the "critical habitat" for any managed species listed as threatened or endangered under the Endangered Species Act.

(D) Where a stock of a species is considered to be healthy and sufficient information exists to determine the necessary habitat to support the target production goal, then EFH for a species should be a subset of all existing habitat for the species.

(E) Ecological relationships among species, and between the species and their habitat, require, where possible, that an ecosystem approach be used in determining the EFH of a managed species or species assemblage. The extent of the EFH should be based on the judgment of the Secretary and the appropriate Council(s) regarding the quantity and quality of habitat that is necessary to maintain a managed species or species assemblage at a target production goal that supports a sustainable fishery and a healthy ecosystem. Councils must establish target production goals for the fish species in the FMU of an FMP as a goal of the FMP. In determining a target production goal that supports a sustainable fishery and a healthy ecosystem, the Secretary and the appropriate Council(s) should consider:
      1. The prey requirements of the managed species;
      2. the extent to which the managed species is prey for other managed species or marine mammals;
      3. the production necessary to support a sustainable fishery; and
      4. other ecological functions provided by the managed species. If degraded or inaccessible habitat has contributed to the reduced yields of a species or assemblage, and in the judgment of the Secretary and the appropriate Council(s), the degraded conditions can be reversed through such actions as improved fish passage techniques (for fish blockages), improved water quality or quantity measures (removal of contaminants or increasing flows), and similar measures that are feasible, then EFH should include those habitats that would be essential to the species to obtain increased yields.
(iii) EFH Mapping Requirements. The general distribution and geographic limits of EFH for each life history stage should be presented in FMPs in the form of maps. Ultimately, these data should be incorporated into a geographic information system (GIS) to facilitate analysis and presentation. These maps may be presented as fixed in time and space but they should encompass all appropriate temporal and spatial variability in the distribution of EFH. If the geographic boundaries of EFH change seasonally, annually, or decadally, these changing distributions should be represented in the maps. Different types of EFH should be identified on maps along with areas used by different life history stages of the species. The type of information used to identify EFH should be included in map legends, and more detailed and informative maps should be produced as more complete information about population responses (e.g., growth, survival, or reproductive rates) to habitat characteristics becomes available. Where the present distribution or stock size of a species or life history stage is different from the historical distribution or stock size, then maps of historical habitat boundaries should be included in the FMP, if known. The EFH maps are a means to visually present the EFH described in the FMP. If the maps and information in the description of EFH varies, the description is ultimately determinative of the limits of EFH. (3) Non-fishing related activities that may adversely affect EFH -- (i) Identification of adverse effects. FMPs must identify activities that have potential adverse effects on EFH quantity and quality. Broad categories of activities may include, but are not limited to: dredging, fill, excavation, mining, impoundment, discharge, water diversions, thermal additions, runoff, placement of contaminated material, introduction of exotic species, and the conversion of aquatic habitat that may eliminate, diminish, or disrupt the functions of EFH. If known, an FMP should describe the EFH most likely to be affected by these activities. For each activity, the FMP should describe the known or potential impacts to EFH. These descriptions should explain the mechanisms or processes that cause expected deleterious effects and explain the known or potential impacts on the habitat function.

(ii) Cumulative impacts analysis. To the extent practicable, FMPs should identify and describe those activities that can influence habitat function on an ecosystem or watershed scale. This analysis should include a description of the ecosystem or watershed, the role of the managed species in the ecosystem or watershed, and the impact on the ecosystem or watershed of removal of the managed species. An assessment of the cumulative and synergistic effects of multiple threats, including natural adverse effects (such as storm damage or climate-based environmental shifts), and an ecological risk assessment of the managed species’ habitat should also be included. For the purposes of this analysis, cumulative impacts are impacts on the environment that result from the incremental impact of an action when added to other past, present, and reasonably foreseeable future actions, regardless of who undertakes such actions. Cumulative impacts can result from individually minor, but collectively significant actions taking place over a period of time.

(iii) Mapping adverse impacts. The use of a GIS or other mapping system to analyze and present these data in an FMP is suggested for documenting impacts identified under paragraph (a)(3)(i) of this section and required when the analysis in paragraph (a)(3)(ii) is conducted.

(iv) Conservation and enhancement. FMPs should include options to minimize the adverse effects identified pursuant to paragraphs (a)(3)(i) and (ii) of this section and identify conservation and enhancement measures. Generally, non-water dependent actions should not be located in EFH. Actions not in EFH but that may result in significant adverse affects on EFH should be avoided if less environmentally harmful alternatives are available. If there is no alternative, these actions should be minimized. If avoidance and minimization will not adequately protect EFH, mitigation to conserve and enhance EFH will be recommended. These recommendations may include, but are not limited to: (A) Avoidance and minimization of adverse impacts on EFH. Environmentally sound engineering and management practices (e.g., seasonal restrictions, dredging methods, and disposal options) should be employed for all dredging and construction projects. Disposal of contaminated dredged material, sewage sludge, industrial waste or other materials in EFH should be avoided. Oil and gas exploration, production, transportation, and refining activities in EFH should be avoided, where possible, and minimized and mitigated if unavoidable.

(B) Restoration of riparian and shallow coastal areas. Restoration measures may include: Restoration of functions of riparian vegetation by reestablishing endemic trees or other appropriate native vegetation; restoration of natural bottom charac-teristics; removal of unsuitable material from areas affected by human activities; and replacement of suitable gravel or substrate to stream areas for spawning.

(C) Upland habitat restoration. This may include measures to control erosion, stabilize roads, upgrade culverts or remove dikes or levees to allow for fish passage, and the management of watersheds.

(D) Water quality. This includes use of best land management practices for ensuring compliance with water quality standards at state and Federal levels, improved treatment of sewage, and proper disposal of waste materials.

(E) Watershed analysis and subsequent watershed planning. This should be encouraged at the local and state levels. This effort should minimize depletion/diversion of freshwater flows into rivers and estuaries, destruction/degradation of wetlands, and restoration of native species, and should consider climate changes.

(F) Habitat creation. Under appropriate conditions, habitat creation may be considered as a means of replacing lost EFH. However, habitat creation at the expense of other naturally functioning systems must be justified (e.g., marsh creation with dredge material placed in shallow water habitat).
(4) Fishing activities that may adversely affect EFH. -- (i) Adverse effects from fishing may include physical disturbance of the substrate, and loss of and injury to, benthic organisms, prey species and their habitat, and other components of the ecosystem.

(ii) FMPs must include management measures that minimize adverse effects on EFH from fishing, to the extent practicable, and identify conservation and enhancement measures. The FMP must contain an assessment of the potential adverse effects of all fishing gear types used in waters described as EFH. Included in this assessment should be consideration of the establishment of research closure areas and other measures to evaluate the impact of any fishing activity that physically alters EFH.

(iii) Councils must act to prevent, mitigate, or minimize any adverse effects from fishing, to the extent practicable, if there is evidence that a fishing practice is having a substantial adverse effect on EFH, based on the assessment conducted pursuant to paragraph (a)(4)(ii).

(iv) In determining whether it is practicable to minimize an adverse effect from fishing, Councils should consider whether, and to what extent, the fishing activity is adversely impacting the marine ecosystem, including the fishery; the nature and extent of the adverse effect on EFH; and whether the benefit to the EFH achieved by minimizing the adverse effect justifies the cost to the fishery.
(5) Options for managing adverse effects from fishing. Fishing management options may include, but are not limited to: (i) Fishing gear restrictions. These options may include, but are not limited to: limit seasonal and areal uses of trawl gear and bottom longlines; restrict net mesh sizes, traps, and entanglement gear to allow escapement of juveniles and non-target species; reduce fish and shellfish traps set near coral reefs and other hard bottoms; limit seasonal and areal uses of dredge gear in sensitive habitats; prohibit use of explosives and chemicals; restrict diving activities that have potential adverse effects; prohibit anchoring of fishing vessels in coral reef areas and other sensitive areas; and prohibit fishing activities that cause significant physical damage in EFH.

(ii) Time/area closures. These actions may include, but are not limited to: closing areas to all fishing or specific gear types during spawning, migration, foraging and nursery activities; and designating zones to limit effects of fishing practices on certain vulnerable or rare areas/species/life history stages.

(iii) Harvest limits. These actions may include, but are not limited to, limits on the take of species that provide structural habitat for other species assemblages or communities, and limits on the take of prey species.
(6) Prey species. Loss of prey is an adverse effect on a managed species and its EFH; therefore, FMPs should identify the major prey species for the species in the FMU and generally describe the location of prey species’ habitat and the threats to that habitat. Adverse effects on prey species may result from fishing and non-fishing activities.

(7) Identification of vulnerable habitat. FMPs should identify vulnerable EFH. In determining whether a type of EFH is vulnerable, Councils should consider: (i) The extent to which the habitat is sensitive to human-induced environmental degradation.

(ii) Whether, and to what extent, development activities are, or will be, stressing the habitat type.

(iii) The rarity of the habitat type.
(8) Research and information needs. Each FMP should contain recommendations, preferably in priority order, for research efforts that the Councils and NMFS view as necessary for carrying out their EFH management mandate. The need for additional research is to make available sufficient information to support a higher level of description and identification of EFH under paragraph (a)(2)(i) of this section. Additional research may also be necessary to identify and evaluate actual and potential adverse effects on EFH, including, but not limited to direct physical alteration; impaired habitat quality/functions; or indirect adverse effects such as sea level rise, global warming and climate shifts; and non-gear fishery impacts. The Magnuson-Stevens Act specifically identifies the effects of fishing as a concern. The need for additional research on the effects of fishing gear on EFH should be included in this section of the FMP. If an adverse effect is identified and determined to be an impediment to reaching target long-term production levels, then the research needed to quantify and mitigate that effect should be identified in this section.

(9) Review and revision of EFH components of FMPs. Each Council and NMFS are expected to periodically review the EFH components of FMPs. Each EFH FMP amendment should include a provision requiring review and update of EFH information and preparation of a revised FMP amendment if new information becomes available. The schedule for this review should be based on an assessment of both the existing data and expectations when new data will become available. Such a review of information should be conducted as recommended by the Secretary, but at least once every five years.
(b) Optional components. An FMP may include a description and identification of, and contain management measures to protect, the habitat of species under the authority of the Council, but not contained in the FMU. However, such habitat may not be considered EFH.

(c) Development of EFH recommendations. After reviewing the best available scientific information, and in cooperation with the Councils, participants in the fishery, interstate commissions, Federal agencies, state agencies, and other interested parties, NMFS will develop written recommendations for the identification of EFH for each FMP. Prior to submitting a written EFH identification recommendation to a Council for an FMP, the draft recommendation will be made available for public review and at least one public meeting will be held. NMFS will work with the affected Council(s) to conduct this review in association with scheduled public Council meetings whenever possible. The review may be conducted at a meeting of the Council committee responsible for habitat issues or as a part of a full Council meeting. After receiving public comment, NMFS will revise its draft recommendations, as appropriate, and forward written recommendation and comments to the Council(s).
Coordination and Consultation on Actions That May Adversely Affect EFH
  1. General
(1) Scope. One of the greatest long-term threats to the viability of the Nation’s fisheries is the decline in the quantity and quality of marine, estuarine, and other riparian habitats. These procedures address the coordination and consultation requirements of sections 305(b)(1)(D) and (305(b)(2-4) of the Magnuson-Stevens Act. The consultation requirements of the Magnuson-Stevens Act provide that: Federal agencies must consult with the Secretary on all actions, or proposed actions, authorized, funded, or undertaken by the agency, that may adversely affect EFH; and the Secretary and the Councils provide recommendations to conserve EFH to Federal or state agencies. EFH conservation recommendations are measures recommended by the Councils or NMFS to a Federal or state agency to conserve EFH. Such recommendations may include measures to avoid, minimize, mitigate, or otherwise offset adverse effects on EFH resulting from actions or proposed actions authorized, funded, or undertaken by that agency. The coordination section requires the Secretary to coordinate with, and provide information to, other Federal agencies regarding EFH. These procedures for coordination and consultation allow all parties involved to understand and implement the consultation requirements of the Magnuson-Stevens Act.

(2) Coordination with other environmental reviews. Consultation and coordination under sections 305(b)(2), and 305(b)(4) of the Magnuson-Stevens Act may be consolidated, where appropriate, with interagency coordination procedures required by other statutes, such as the National Environmental Policy Act, the Fish and Wildlife Coordination Act, the Clean Water Act, Endangered Species Act, and the Federal Power Act, to reduce duplication and improve efficiency. For example, a Federal agency preparing an environmental impact statement (EIS) need not duplicate sections of that document in a separate EFH assessment, provided the EIS specifically and fully evaluates the effects of the proposed action on EFH, notes that it is intended to function as an EFH assessment, is provided to NMFS for review, and meets the other requirements for an EFH assessment contained in this section. NMFS comments on these documents will also function as its response required under section 305(b)(4) of the Magnuson-Stevens Act.

(3) Designation of Lead Agency. If more than one Federal or state agency is involved in an action (e.g., authorization is needed from more than one agency), the consultation requirements of sections 305(b)(2-4) of the Magnuson-Stevens Act may be fulfilled through a lead agency. The lead agency must notify NMFS in writing that it is representing one or more additional agencies.

(4) Conservation and enhancement of EFH. To further the conservation and enhancement of EFH, in accordance with section 305(b)(1)(D) of the Magnuson-Stevens Act, NMFS will compile and make available to other Federal and state agencies information on the locations of EFH, including maps and/or narrative descriptions. Federal and state agencies empowered to authorize, fund, or undertake actions that could adversely affect EFH should contact NMFS and the Councils to become familiar with the designated EFH, and potential threats to EFH, as well as opportunities to promote the conservation and enhancement of such habitat.
(c) Council comments and recommendations to Federal and state agencies -- (1) Establishment of procedures. Each Council should establish procedures for reviewing activities, or proposed activities, authorized, funded, or undertaken by state or Federal agencies that may affect the habitat, including EFH, of a species under its authority. Each Council may identify activities of concern by: directing Council staff to track proposed actions; recommending that the Council’s habitat committee identify activities of concern; entering into an agreement with NMFS to have the appropriate Regional Director notify the Council of activities that may adversely impact EFH; or by similar procedures. Federal and state actions often follow specific timetables which may not coincide with Council meetings. Councils should consider establishing abbreviated procedures for the development of Council recommendations.

(2) Early involvement. Councils should provide comments and recommendations on proposed state and Federal activities of interest as early as practicable in project planning to ensure thorough consideration of Council concerns by the action agency.

(3) Coordination with NMFS. The Secretary will develop agreements with each Council to facilitate sharing information on actions that may adversely affect EFH and in coordinating Council and NMFS responses to those actions.

(4) Anadromous fishery resources. For the purposes of the consultation requirement of section 305(b)(3)(B) of the Magnuson-Stevens Act, an anadromous fishery resource under a Council’s authority is an anadromous species where some life stage inhabits waters under the Council’s authority.
(d) Federal agency consultation -- (1) Interagency coordination. Both Federal and state agencies are encouraged to coordinate their actions with NMFS to facilitate the early identification of potential adverse effects on EFH. This will allow consideration of measures to conserve and enhance EFH early in the project design. The consultation requirements of sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act differ for Federal and state agencies. Only Federal agencies have a mandatory statutory requirement to consult with NMFS regarding actions that may adversely affect EFH, pursuant to section 305(b)(2) of the Magnuson-Stevens Act. NMFS is required under section 305(b)(4) to provide EFH recommendations regarding both state and Federal agency actions that could adversely affect EFH (see §600.810(a)(3) for further guidance on actions that could adversely affect EFH). Both Federal and state agencies are encouraged to develop agreements (or modify existing agreements) with NMFS to meet the consultation requirements in a manner to increase efficiency and to fully meet the requirements of the EFH provisions.

(2) Designation of non-Federal representative. A Federal agency may designate a non-Federal representative to conduct an abbreviated consultation or prepare an EFH assessment by giving written notice of such designation to NMFS. If a non-Federal representative is used, the Federal action agency remains ultimately responsible for compliance with sections 305(b)(2) and 305(b)(4) of the Magnuson-Stevens Act.

(3) General Concurrence -- (i) Purpose. The General Concurrence process identifies specific types of Federal actions that may adversely affect EFH, but for which no further consultation is generally required because NMFS has determined, through an analysis of that type of action, that it will likely to result in minimal adverse effects individually and cumulatively. General Concurrences may be national or regional in scope.
    1. Criteria.
(A) For Federal actions to qualify for General Concurrence, NMFS must determine, after consultation with the appropriate Council(s), that the actions meet all of the following criteria: (1) The actions must be similar in nature and similar in their impact on EFH.

(2) The actions must not cause greater than minimal adverse effects on EFH when implemented individually.

(3) The actions must not cause greater than minimal cumulative adverse effects on EFH.
(B) Categories of Federal actions may also qualify for General Concurrence if they are modified by appropriate conditions that ensure the actions will meet the criteria in paragraph (c)(3)(ii)(A) of this section. For example, NMFS may provide General Concurrence for additional actions contingent upon project size limitations, seasonal restrictions, or other conditions.
(iii) General Concurrence development. A Federal agency may request a General Concurrence for a category of its actions by providing NMFS with a written description of the nature and approximate number of the proposed actions, an analysis of the effects of the actions on EFH and associated species and their life history stages, including cumulative effects, and the Federal agency’s conclusions regarding the magnitude of such effects. If NMFS agrees that the actions fit the criteria in paragraph (c)(3)(ii) of this section, NMFS, in consultation with the Council(s), will provide the Federal agency with a written statement of General Concurrence that further consultation is not required, and that preparation of EFH assessments for individual actions subject to the General Concurrence is not necessary. If NMFS determines that individual actions that fall within the General Concurrence would adversely affect EFH, NMFS will notify the Federal agency that abbreviated or expanded consultation is required. If NMFS identifies specific types of Federal actions that may meet the requirements for a General Concurrence, NMFS may initiate and complete a General Concurrence.

(iv) Notification and further consultation. NMFS may request notification for activities covered under a General Concurrence if NMFS concludes there are circumstances under which such activities could result in more than a minimal impact on EFH, or if it determines that there is not a process in place to adequately assess the cumulative impacts of activities covered under the General Concurrence. NMFS may require further consultation for these activities on an individual action. Each General Concurrence should establish specific procedures for further consultation.

(v) Public review. Prior to providing a Federal agency with a written statement of General Concurrence for a category of Federal actions, NMFS will provide an opportunity for public review through the appropriate Council(s), or other reasonable opportunity for public review.

(vi) Revisions to General Concurrences. NMFS will periodically review and revise its findings of General Concurrence, as appropriate.
(4) EFH Assessments -- (i) Preparation requirement. Federal agencies (or designated non-Federal representatives) must complete an EFH assessment for any action that may adversely affect EFH, except for those activities covered by a General Concurrence. Where appropriate, Federal agencies may combine requirements for environmental documents such as Endangered Species Act Biological Assessments pursuant to 50 CFR part 402 or National Environmental Policy Act documents and public notices pursuant to 40 CFR part 1500, with their EFH Assessment. This document must include all of the information required in paragraph (c)(4)(ii) of this section and the requirements for other applicable environmental documents to be considered a complete assessment.

(ii) Mandatory contents. The assessment must contain: (A) A description of the proposed action.

(B) An analysis of the effects, including cumulative effects, of the proposed action on EFH and the managed and associated species, including their life history stages.

(C) The Federal agency’s conclusions regarding the effects of the action on EFH.
(iii) Additional information. If appropriate, the assessment should also include: (A) The results of an on-site inspection to evaluate the habitat and the site-specific effects of the project.

(B) The views of recognized experts on the habitat or species that may be affected.

(C) A review of pertinent literature and related information.

(D) An analysis of alternatives to the proposed action, including alternatives that could avoid or minimize adverse effects on EFH.

(E) Proposed mitigation.

(F) Other relevant information.
(iv) Incorporation by reference. The assessment may incorporate by reference a completed EFH Assessment prepared for a similar action, supplemented with any relevant new project specific information, provided the proposed action involves similar impacts to EFH in the same geographic area or a similar ecological setting. It may also incorporate by reference other relevant environmental assessment documents. These documents must be provided to NMFS.
(5) Abbreviated consultation procedures -- (i) Purpose. Abbreviated consultation allows NMFS to quickly determine whether, and to what degree, a Federal agency action may adversely affect EFH. The abbreviated consultation process is appropriate for Federal actions that would adversely affect EFH when, in NMFS’ judgment, the adverse effect(s) of such actions could be alleviated through minor modifications to the proposed action.

(ii) Notification by agency. The Federal agency must notify NMFS and the appropriate Council in writing as early as practicable regarding proposed actions that may adversely affect EFH. Notification will facilitate discussion of measures to conserve the habitat. Such early consultation must normally occur during pre-application planning for projects subject to a Federal permit or license, and during preliminary planning for projects to be funded or undertaken directly by a Federal agency.

(iii) Submittal of EFH Assessment. The Federal agency must submit a completed EFH assessment to NMFS for review in accordance with paragraph (c)(4) of this section. If either the Federal agency or NMFS believes expanded consultation will be necessary, the Federal agency must initiate expanded consultation concurrently with submission of the EFH Assessment. Federal agencies will not have fulfilled their consultation requirement under paragraph (a)(1) of this section until timely notification and submittal of a complete EFH Assessment.

(iv) NMFS response. NMFS must respond in writing as to whether it concurs with the findings of the assessment. NMFS’ response shall indicate whether expanded consultation is required. If additional consultation is not necessary, NMFS’ response must include any necessary EFH conservation recommendations to be used by the Federal action agency. NMFS will send a copy of its response to the appropriate Council.

(v) Timing. The Federal action agency must submit its complete EFH Assessment to NMFS as soon as practicable, but at least 60 days prior to a final decision on the action, and NMFS must respond in writing within 30 days. If notification and the EFH Assessment are combined with other environmental reviews required by statute, then the statutory deadline for those reviews apply to the submittal and response. If NMFS and the Federal action agencies agree, a compressed schedule will be used in cases where regulatory approvals cannot accommodate 30 days for consultation, or to conduct consultation earlier in the planning cycle for proposed actions with lengthy approval processes.
(6) Expanded consultation procedures  (i) Purpose. Expanded consultation is appropriate for Federal actions that would result in substantial adverse effects to EFH and/or require more detailed analysis to enable NMFS to develop EFH conservation recommendations.

(ii) Initiation. Expanded consultation begins when NMFS receives a written request from a Federal action agency to initiate expanded consultation. The Federal action agency’s written request must include a completed EFH Assessment in accordance with paragraph (c)(4) of this section. Because expanded consultation is required for activities that may potentially have substantial adverse impacts on EFH, Federal action agencies are encouraged to provide the additional information identified under paragraph (c)(4)(iii) of this section. Subject to NMFS’s approval, any request for expanded consultation may encompass a number of similar individual actions within a given geographic area.

(iii) NMFS response. NMFS will: (A) Review the EFH Assessment, any additional information furnished by the Federal agency, and other relevant information.

(B) Conduct a site visit, if appropriate, to assess the quality of the habitat and to clarify the impacts of the Federal agency action.

(C) Evaluate the effects of the action on EFH, including cumulative effects.

(D) Coordinate its review of the proposed action with the appropriate Council.

(E) Formulate EFH conservation recommendations and provide the recommendations to the Federal action agency and the appropriate Council.
(iv) Timing. The Federal action agency must submit its complete EFH Assessment to NMFS as soon as practicable, but at least 120 days prior to a final decision on the action, and NMFS must conclude expanded consultation within 90 days of submittal of a complete Assessment unless extended by NMFS with notification to the Federal action agency. If notification and the EFH Assessment are combined with other statutorily required environmental reviews, then the statutory deadlines for those reviews apply to the submittal and response. NMFS and Federal action agencies may agree to use a compressed schedule in cases where regulatory approvals cannot accommodate a 60 day consultation period.

(v) Best scientific information. The Federal action agency must provide NMFS with the best scientific information available, or reasonably accessible during the consultation, regarding the effects of the proposed action on EFH.

(vi) Extension of consultation. If NMFS determines that additional data or analysis would provide better information for development of EFH conservation recommendations, NMFS may request additional time for its expanded consultation. If NMFS and the Federal action agency agree to an extension, the Federal action agency must provide the additional information to NMFS, to the extent practicable. If NMFS and the Federal action agency do not agree to extend consultation, NMFS must provide EFH conservation recommendations to the Federal action agency using the best scientific data available to NMFS.
(7) Responsibilities of Federal action agency following receipt of EFH conservation recommendations -- (i) Federal action agency response. Within 30 days after receiving an EFH conservation recommendation (or at least 10 days prior to final approval of the action, if a decision by the Federal agency is required in less than 30 days), the Federal action agency must provide a detailed response in writing to NMFS and the appropriate Council. The response must include a description of measures proposed by the agency for avoiding, mitigating, or offsetting the impact of the activity on EFH. In the case of a response that is inconsistent with the recommendations of NMFS, the Federal action agency must explain its reasons for not following the recommendations, including the scientific justification for any disagreements with NMFS over the anticipated effects of the proposed action and the measures needed to avoid, minimize, mitigate, or offset such effects.

(ii) Dispute resolution. After receiving a Federal action agency response that is inconsistent with the recommendations of NMFS, the Assistant Administrator may request a meeting with the head of the Federal action agency, as well as any other agencies involved, to discuss the proposed action and opportunities for resolving any disagreements. Memoranda of agreement with Federal action agencies will be sought to further define such dispute resolution processes.
(8) Supplemental consultation. A Federal action agency must resume consultation with NMFS following either abbreviated or expanded consultation if the agency substantially revises its plans for the action in a manner that may adversely affect EFH or if new information becomes available that affects the basis for NMFS’ EFH conservation recommendations. Additional-ly, where Federal oversight, involvement, or control over the action has been retained or is authorized by law, the Federal action agency must resume consultation if new EFH is designated that may be adversely affected by the agency’s exercise of its authority.
(d) NMFS recommendations to state agencies -- (1) Establishment of Procedures. Each Region should establish procedures for identifying actions or proposed actions authorized, funded, or undertaken by state agencies that may adversely affect EFH, and for identifying the most appropriate method for providing EFH conservation recommendations to the state agency.

(2) Coordination with Federal consultation procedures. When an activity that may adversely affect EFH requires authorization or funding by both Federal and state agencies, NMFS will provide the appropriate state agencies with copies of EFH conservation recommendations developed as part of the Federal consultation procedures in paragraph (c) of this section.

Meanwhile, H.R. 478, was passed out of the House Committee on Resources by a vote of 23-9 on April 16, 1997. H.R. 479 would "…amend the Endangered Species Act of 1973 to improve the ability of individuals and local, State, and Federal agencies to comply with that Act [ESA] in building, operating, maintaining, or repairing flood control projects, facilities, or structures." Conservation groups staunchly oppose the bill. ***AS WE GO TO PRESS*** H.R. 478 reportedly will be voted on in the House May 7. Representative Boehlert will reportedly offer a substitute bill based on the scaled back Appropriations Committee language from 4/24/97.
We are plowing important new ground here today. Oregon’s is by far the most comprehensive conservation plan any state has ever offered to protect a species proposed for Endangered Species Act listing. Oregon’s plan, more than a year and a half in the making, has the backing of the state legislature, the support of private and public funding, including $30 million from the legislature, and a signed commitment from the governor to strengthen it as needed over time. It’s a road map for salmon recovery in the West. State forest practice regulations are a concern to NMFS. The Oregon Forest Practices Act, rewritten in 1994, significantly improved riparian protection measures. However, at the time of its passage, there was concern that the new act would not provide enough protection for anadromous fish rearing and spawning habitat, especially for small fish-bearing streams. According to a NMFS "White Paper on the Oregon Forest Practices Act," some of the shortcomings of the act’s rules include: Mass Wasting (Protection of Unstable Areas): ...there are no provisions to avoid logging or road construction on high-risk sites. This is a serious deficiency in the Rules, because landslides can add significant amounts of fine sediment to streams and can result in increased direct mortality to salmon through burial of redds and eggs.

Potential Hydrologic Changes: The Rules do not directly address potential changes in hydrology that may result from forestry operations.

Inadequate Long-Term Wood Recruitment into Streams: The overall strategy is good, but the widths of the riparian management areas (RMAs) are too narrow and the tree densities to be retained after logging are too low to provide optimal riparian function. Only fish-bearing streams are managed to provide large wood.

Road-Related Problems: There needs to be a process for identifying and correcting potential erosion from older roads and railroad grades. Newer roads that the ODF regulates need to be adequately maintained to avoid potential erosion problems and sediment delivery to anadromous fish habitats.
The preferred alternative in the Draft EISs features aggressive restoration of forests, rangelands and watersheds through active management. It emphasizes actions such as thinning over-dense forests and setting controlled fires during cooler seasons to decrease risks of large and more severe wildfires which have plagued the region in recent years. Also highlighted is an increased effort to stem the tide of noxious weeds which are spreading across range and forest lands in the northwest. Actions are proposed to restore both stream side riparian areas--as well as larger watersheds--to healthier conditions. Federal officials also issued a strong call for PUBLIC REVIEW of the Draft EISs. Following release of the drafts, which is planned later this month, there will be a 120-day COMMENT PERIOD. For further information contact the Interior Columbia River Basin Ecosystem Management Project at (208) 334-1770.
(insert salmon-safe logo)
    1. Resolution on CALIFORNIA COHO: The PFMC called on the State of California and National Marine Fisheries Service to convene an independently facilitated meeting of all parties of interest to resolve conflicts in the implementation of coho recovery in California; and for NMFS to convene, following consultation with various entities, an independent scientific panel to evaluate coho recovery, including limiting factors (e.g., existing habitat protection regulations, best management practices, hatchery practices, etc.).
    2. CVPIA letter: The PFMC expressed its concern that the Department of Interior has not made the decisions necessary to fully implement the Central Valley Improvement Act (CVPIA), and called on the U.S. Department of the Interior take the necessary steps to assure that the annual allocation of up to 800,000 acre-feet, designated by Congress for fish and wildlife, is delivered on a schedule that meets fish and wildlife needs.

EDITOR’S RECIPE: We would like to thank a Hotline reader for providing us with the following recipe for Cod Provençal:


1/4 cup olive oil

1 large onion, sliced thin

2 cloves garlic, chopped

2 green pepper, shredded

1 two-ounce can anchovies with oil, chopped

1/2 cup black olives, chopped

1/4 teaspoon fennel seed

8 thin cod steaks

4 slices tomato

salt and freshly ground pepper to taste

1/2 cup tomato puree

1 cup red wine

chopped parsley
  1. Preheat oven to 400 degrees.
  2. In a skillet, heat half the oil, add the onion, garlic, green pepper and cook until the onion is transparent. Add the anchovies, olives and fennel.
  3. Place four cod steaks in a greased baking dish, spread with the anchovy mixture and top each with a slice of the remaining cod, then with tomato. Brush with the remaining oil and season with salt and pepper.
  4. Mix the tomato puree with the wine and pour over the fish. Bake about thirty minutes, basting often. Sprinkle with the parsley before serving. Makes eight servings.





EDITOR’S NOTE: We welcome information on habitat news in your area. Information should pertain to habitat of marine, estuarine, or anadromous fish or shellfish. Feel free to fax us newspaper articles, copies of letters, public hearing notices, etc., to (503) 650-5426. Funding for this publication comes in part from Federal Aid in Sport Fish Restoration. If you have any questions regarding the contents of this publication, or about our habitat education program, please contact: Stephen Phillips, Editor, Habitat Hotline, 45 SE 82nd Drive, Suite 100, Gladstone, Oregon 97027-2522. Phone: (503) 650-5400, Fax: (503) 650-5426. Messages can also be E-mailed at Stephen_Phillips@psmfc.org. Layout and editorial assistance by Liza Bauman. Printed on 100% recycled sheet with minimum 50% post consumer fiber. Date of Issue: 5/5/97.