HABITAT
HOTLINE
SPECIAL ISSUE
MAY 1997 NUMBER 32
TABLE OF CONTENTS
I.
FEDERAL
II.
UPDATES
I. FEDERAL
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.
NMFS PUBLISHES PROPOSED EFH RULE
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.
COMMENTS
ON NMFS EFH PROPOSED RULE DUE MAY 23
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.
TO COMMENT ON THE
PROPOSED EFH RULE
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
NMFS TO HOLD PUBLIC MEETINGS
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.
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May 20, 1997 in Seattle, WA at the NMFS NW Regional Headquarters Auditorium,
Bldg. 9, 7600 Sand Point Way, NE; Time: 7:30-10:30 pm.
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May 21, 1997 in Juneau, AK at Centennial Hall, Hickel Room, 101 Egan
Drive; Time: 7:00-10:00 pm.
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:
http://kingfish.ssp.nmfs.gov/rschreib/habitat.html
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
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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 --
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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:
-
The prey requirements of the managed species;
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the extent to which the managed species is prey for other managed species
or marine mammals;
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the production necessary to support a sustainable fishery; and
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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
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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.
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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.
II. UPDATES
FEDERAL
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May is designated as NATIONAL WETLANDS MONTH by the Environmental
Protection Agency. The importance of wetland habitat (which includes riparian
habitat) to fish resources cannot be overstated. It has been estimated
that in the Northwest and Alaska, over 50 and 75 percent, respectively,
of commercial fish and shellfish catches are estuarine dependent. PSMFC
has published a document entitled, "Estuarine and Wetland Dependent Fish
of the Pacific Northwest," which summarizes the life history requirements
of 23 fish. Call or write PSMFC for further information or view this document
on the PSMFC web site at: http://www.psmfc.org/habitat/fishfacts.html.
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On 4/4/97 the Bureau of Land Management (BLM) announced the opening
of the "scoping" period on the proposed revision of the "Section 3809"
regulations for hardrock MINING on public lands. The notice, which
appears in the April 4, 1997 Federal Register, invites the public
to submit comments and to participate in meetings so that the agency can
prepare an Environmental Impact Statement (EIS) and propose regulations.
The BLM is taking this action in response to a January 6, 1997 memorandum
from Secretary of the Interior Bruce Babbitt. The BLM has also formed a
task force to address several hardrock mining issues, including: (1) the
use of "best available technologies" to prevent "unnecessary or undue degradation"
of public lands; (2) performance standards for the conduct of mining and
reclamation activities; (3) alternatives to the current rules that apply
to mining operations of five acres or less; and (4) ways to improve coordination
between the BLM and state regulatory programs. SCOPING MEETINGS
in PSMFC member states have been scheduled as follows: May 13 in Spokane,
WA at Cavanaugh’s Inn at the Park, 303 N. River Drive; May 15 in Fairbanks,
AK at the Carleson Center, Pioneer Room, 2010 Second Avenue; May 28 in
San Francisco, CA at the Holiday Inn, 1300 Columbus Avenue. For further
information contact the Bureau of Land Management at (202) 452-5128.
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On 4/29/97 the House of Representatives’ Transportation and Infrastructure
Subcommittee on Water Resources and Environment held a hearing on
administrative and judicial issues surrounding the Clean Water Act’s wetlands
program. According to the Clean Water Network, there is no major wetlands
legislation "in play" at this time.
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On 4/24/97 the House Appropriations Committee unanimously approved
amendment language to a FY 1997 emergency supplemental spending bill, to
waive some ENDANGERED SPECIES ACT requirements for FLOOD CONTROL
projects, facilities, or structures. The language is a "scaled back" version
of H.R. 478, a bill introduced by Representatives Wally Herger (R-Calif.)
and Richard Pombo (R-Calif.) (See Habitat Hotline Number 31). The
amendment language (Boehlert language) was reportedly agreed to by Representatives
Vic Fazio (D-Calif.), Sherwood Boehlert (R-NY), George Miller (D-Calif.),
and the Clinton Administration. However, the publication Greenwire
reported on 5/5/97 that Representative Don Young (R-Alaska) will have the
Boehlert language removed from the supplemental appropriations bill. ***As
We Go To Press***, in the House, the emergency supplemental
spending bill will be voted on the week of May 5. In the SENATE,
Senator Larry Craig (R-Idaho) attached language similar to H.R. 478 to
the Senate flood appropriations bill. ***As We Go To Press***, it
is expected that the Senate bill will be voted on May 6.
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.
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Also contained in the House FY 1997 supplemental spending bill is language
which would REDUCE the acreage that can be set aside under the CONSERVATION
RESERVE PROGRAM (CRP) to 14 million acres during FY ‘97 (a reduction
of 12 million acres). The CRP idles farmland for environmental purposes.
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On 4/17/97 Representatives Anna Eshoo (D-Calif.) and Carolyn Maloney
(D-N.Y.) introduced H. R. 1376, an "Act to Save America’s Forests". The
purpose of this bill would be to "amend the Forest and Rangeland Renewable
Resources Planning Act of 1974 and related laws to strengthen the protection
of native biodiversity, BAN CLEARCUTTING ON FEDERAL LANDS, and to
designate certain Federal lands as Northwest Ancient Forests, roadless
areas, and Special Areas where logging and other intrusive activities are
prohibited." The bill has 50 co-sponsors.
REGIONAL
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On 4/25/97 the National Marine Fisheries Service announced that the
"Southern Oregon/Northern California" Evolutionary Significant Unit (ESU)
of COHO salmon will be listed as "THREATENED" under the Endangered
Species Act. According to NMFS, historically, there were between 150,000
to 400,000 native coho salmon in this ESU; now, there are probably fewer
than 30,000. NMFS also announced that the "OREGON COAST" ESU will
be listed only as a "candidate species." Historically, there were between
1 million to 1.4 million native coho in this ESU; now, there are probably
fewer than 80,000. Instead of a listing, the Federal government will allow
the State of Oregon to implement its COASTAL SALMON RESTORATION INITIATIVE
(CSRI). NMFS Northwest Regional Director Will Stelle had this to say
about the Oregon coastal coho listing decision:
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.
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On 4/30/97 the Oregon Natural Resources Council said that they will
sue NMFS over the Oregon ESU "no list" decision.
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On 4/23/97 the federal government announced their strategy for the
UPPER COLUMBIA RIVER BASIN Draft Environmental Impact Statements
(DEIS). The two DEISs will dictate federal land management for more
than 72 million acres in eastern Oregon, eastern Washington, much of Idaho,
western Montana, northern Nevada, and parts of Utah and Wyoming. According
to a 4/23/97 federal government interagency press release:
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.
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On 4/4/97 the National Marine Fisheries Service decided that the majority
of 1997 SNAKE RIVER chinook salmon juveniles will be BARGED
versus being left "in river" to migrate. The Oregonian on 4/5/97
reported NMFS Regional Director Will Stelle as saying he could not agree
to barging fewer than 50 percent of the fish given evidence that more fish
survive on barges than facing dams. Environmental and fishing groups, as
well as the Columbia River Tribes, dispute the benefits of barging fish
and want more fish left in the river. They contend that spilling fish over
the dams be the principle means of passing fish across dams and that gas
abatement (minimizing potential gas bubble disease) be a primary goal of
dam operations.
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On 4/3/97 Judge Malcolm MARSH ruled that the federal government’s
management of the Federal Columbia River Power System Operations (FCRPS)
does not violate the Endangered Species Act. The SUIT, brought by
environmental and fishing groups and supported by the State of Oregon and
Columbia River Treaty Tribes charged that the Federal government’s 1994-1998
Biological Opinion on Snake River chinook and sockeye salmon failed "to
provide a rational explanation for concluding FCRPS operations...would
avoid jeopardy" (see Habitat Hotline Number 31).
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On 4/16/97 the conservation group American Rivers released its 1997
"ENDANGERED AND THREATENED RIVERS" LIST. Included on the "endangered"
list are: Missouri River; Upper Hudson River, N.Y.; WHITE SALMON RIVER,
WASH. (Identified Threat: Hydropower Dam {Condit project}); SAN JOAQUIN
RIVER, CALIF. (Identified Threat: Floodplain Development, Agricultural
Pollution); Wolf River, Wis.; Pinto Creek, Ariz.; Potomac River; Mill Creek,
Ohio; Lower Colorado River; and the Tennessee River. The West Coast’s Most
"threatened rivers" include: Clearwater River (ID), Columbia River, Hanford
Reach (WA), New River (CA, Mexico), Rough and Ready Creek (OR), Russian
River (CA), Mid-Snake River (ID), and the Taku River (AK, British Columbia).
For further information contact the American Rivers at (202) 547-6900;
or visit their website at http://www.igc.apc. org/amrivers/
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On 4/24/97, according to the Associated Press, the conservation
group Ecotrust announced the formation of a bank holding company dedicated
to promoting ENVIRONMENTALLY SOUND ECONOMIC DEVELOPMENT. Participating
in the project will be the Shore Bank Corporation of Chicago and the Ford
Foundation, which recently granted $2 million to seed the project. Loans
will be granted on the West Coast, for projects ranging from Northern California
to Prince William Sound, Alaska. For further information contact Ecotrust
at (503) 227-6225.
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On 4/30/97 the Pacific Rivers Council (PRC) launched its "salmon-safe"
campaign. According to PRC, the salmon-safe logo (see below) will appear
on select Northwest foods and beverages, signifying that they were produced
using farming practices that keep rivers clean enough for wild salmon to
spawn and thrive. For further information contact the PRC at (503) 294-0786.
(insert salmon-safe logo)
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On 4/10/97 the Northwest Power Planning Council released "An Integrated
Framework for Fish and Wildlife Management in the Columbia River Basin."
The Framework "describes a process for developing a regional framework,"
and is "designed as a first step in the process of developing a regional
framework for fish and wildlife recovery." COMMENTS are DUE
by June 16, 1997. For further information, call the Council at (800) 222-3355.
CALIFORNIA
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At its April meeting, the PACIFIC FISHERY MANAGEMENT COUNCIL
took two actions related to fish habitat.
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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.).
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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.
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On April 17, 1997 the San Francisco Chronicle reported that
a federal judge ruled that the UNOCAL REFINERY in Rodeo, California
violated federal/state pollution laws and could be subject to federal FINES
totaling $50 million. The judge said that the company has continuously
dumped excess selenium into San Francisco Bay since 1993.
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On 5/23/97 COMMENTS ARE DUE on the "Working Draft of the Ecosystem
Restoration Program Plan (ERPP)" of the CALFED Bay-Delta Program.
For a copy of the working draft and for further information contact Dick
Daniel of CALFED at (916) 654-9780. In related news, on 5/13/97 there will
be a CALFED agencies public meeting at the Resources Building, 1416
Ninth Street, Sacramento, CA from 10:30 am to 1:00 pm. Attending the meeting
will be: Doug Wheeler, Secretary of the California Resources Agency; Bob
Perciasepe, Assistant Administrator for Water at the US EPA; and Lester
Snow, Executive Director of the CALFED Bay-Delta Program.
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On 4/9/97 the California Coastal Commission ruled that Southern California
Edison Utility must complete mitigation projects (wetlands restoration,
construction of a 150-acre kelp reef offshore, fish hatchery construction)
to offset the impacts of its SAN ONOFRE NUCLEAR GENERATING STATION.
The final mitigation package is estimated to be over $100 million. It is
unknown whether California Edison will challenge the Commission’s decision
in court. For further information contact Melanie Hale of the Coastal Commission
at (415) 904-5247.
ALASKA
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On 4/16/97 a coalition of environmental groups filed suit in US District
Court in Juneau, Alaska to block logging of 2,256 acres of timber in the
Chugach National Forest on Alaska’s KENAI PENINSULA, according to
the Anchorage Daily News and the publication Greenwire. The
groups, which include the Sierra Club Legal Defense Fund and the National
Audubon Society’s Anchorage chapter, claim the US Forest Service (USFS)
"violated the National Environmental Policy Act by not conducting a ‘full-scale’
environmental impact study of the Moose Pass logging project" But USFS
officials have claimed that the "less-detailed" environmental study they
conducted was sufficient.
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Since April 1996, the Forest Service said that it has received over
21,000 comments on the draft Tongass Land Management Plan (plan). Regional
Forester Phil Janik recently announced that scientific risk assessment
panels will be reconvened to help estimate the anticipated effects of the
proposed plan on the TONGASS. Janik also announced that the Forest
Service is completing a final substantive review, which will focus on the
socioeconomic analysis, rationale for clearcutting, the monitoring plan,
the plan’s old-growth strategy, and modeling assumptions for timber projections.
According to the USFS, the plan’s Record of Decision will be released later
this spring. For further information contact the U.S. Forest Service at
(907) 586-8700.
IDAHO
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On 4/9/97 the Lewiston Morning Tribune and the publication
Greenwire reported that a proposed LEGAL SETTLEMENT between
Idaho conservation groups (including the Idaho Conservation League, Idaho
Sporting Congress and Sierra Club Legal Defense Fund) and the Environmental
Protection Agency would give the state of Idaho eight years to set basic
WATER-QUALITY standards (per the Clean Water Act, Section 303d)
for 962 polluted streams. The plan must still go in front of a federal
judge before it can be implemented.
WASHINGTON
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On 4/15/97 the Tacoma News Tribune and the publication Greenwire
reported that Puget Sound Energy Inc. will equip the Electron Dam on the
PUYALLUP RIVER in Washington with a FISH LADDER, reopening
nearly 30 miles of "unspoiled waterways" to chinook, coho, and steelhead.
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A 3/24/97 Seattle Times article stated that the "embattled
CUSHMAN DAMS could soon earn a new distinction as the first major hydroelectric
project of its size in the country abandoned or decommissioned by its owner,"
Tacoma City Light. The Cushman project (on the Skokomish River) has severely
impacted anadromous fish runs in the Skokomish River drainage. Since 1988,
the Cushman project has released flows of only 30 cfs to the North Fork
of the Skokomish, or about 4 percent of the river’s natural annual flow.
OREGON
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On 4/12/97 The Oregonian reported that in a "precedent-setting"
decision, the Oregon Supreme Court has ruled that Boise Cascade Corporation
may seek COMPENSATION from the state due to state LOGGING
regulations that diminished the value of land that is home to a pair of
endangered northern spotted owls. The Oregon decision allows Boise Cascade
to return to trial court and argue that the state deprived it of $3.3 million,
the amount it says its 64-acre tract in northwest Oregon would be worth,
absent state logging restrictions. The decision, however, does not affect
spotted owl protection on federal lands.
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The National Marine Fisheries Service reportedly has ruled that the
proposed MILLTOWN HILL dam will cause jeopardy to endangered cutthroat
trout. However, a final NMFS decision is not due until May 9, 1997. It
is possible that a settlement could be reached between the federal government
and the dam applicant (Douglas County, Oregon) that will allow construction
of the dam. The county is proposing to mitigate the dam’s habitat destruction
by providing year round flows, adding gravel and instream habitat structure
to the system, as well as fencing portions of the stream. The Oregon Department
of Fish and Wildlife is in favor of the project. Several environmental
groups, led by the Western Environmental Law Center, are opposed to the
project.
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In the OREGON LEGISLATURE, a bill designed to grant a fish passage
waiver to the Milltown Hill project (S.B. 598) has passed the Oregon Senate,
has passed out of House Committee and awaits House floor action.
MISCELLANEOUS
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The University of Colorado’s Natural Resources Law Center has published
the "WATERSHED SOURCE BOOK". The book has been described as "a useful
resource describing the promise and progress of watershed efforts across
the West." The book can be ordered directly from the Center by calling
(303) 492-1286. The cost is $25.00 plus $3.00 shipping and handling.
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On 3/26/97 the report "Dirty Water Scoundrels" was released by the
Washington Public Interest Research Group. According to the report, the
U.S. Environmental Protection Agency (EPA) found that "nearly 20 percent
of the nation’s largest industrial, municipal, and federal facilities were
listed [as] in serious, chronic violation of the CLEAN WATER ACT
(CWA)." For further information contact WashPIRG at (206) 523-8985.
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On 4/17/97 the San Francisco Chronicle, citing an article that
appeared in the most recent issue of Nature, reported that Spring
is starting earlier than it did in the 1980’s. "The analysis suggests that
from 1981-1991, the start of springtime growth at latitudes roughly north
of the U.S.-Canada border moved earlier by about a week. The cause for
this is "almost certainly of human caused increases in carbon dioxide
in the air."
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
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Preheat oven to 400 degrees.
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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.
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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.
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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.
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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.