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To: Members & Subscribers
From: National Office
Date: January 13, 1998
Re: RA 98-1

ESSENTIAL FISH HABITAT - INTERIM FINAL RULE

The National Marine Fisheries Service (NMFS), and the National Oceanic and Atmospheric Administration (NOAA) issued in the December 19, 1997 Federal Register, interim final regulations containing guidelines to assist the nation's eight Fishery Management Councils (Councils) in fulfilling essential fish habitat (EFH) requirements set forth by the Magnuson­Stevens Act. The intended effect of the rule is to promote the protection, conservation, and enhancement of EFH.

The guidelines describe procedures for Councils to amend their fishery management plans (FMPs) to describe and identify EFH, minimize adverse effects on EFH, and identify other actions to conserve and enhance EFH. Essential fish habitat includes those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. Councils are required to submit FMP amendments to implement EFH requirements by October 11, 1998. 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.

Attached is a Federal Register copy of the interim final rule. NMFS will consider additional comments before issuing a final rule. AMSA's Water Quality Committee developed and submitted comments on the proposed rule in June of 1997. AMSA was concerned that the proposed rule lacked of recommendations to Councils to conduct cost/benefit analyses and consult with appropriate local stakeholders during the evaluation of impacts from non-fishing activities. Also, AMSA felt that the proposed process for Federal action agency consultation unduly shifts responsibilities of NMFS to the Federal action agency and their respective regulated activities or entities. AMSA members also identified concerns regarding the level of data analyses used to identify EFH. The proposed rule allowed the use of limited data sets to identify EFH, but sets forth no requirements or schedule for Councils to improve the information. Comments on the attached interim final rule are due to NMFS by February 17, 1998.
Highlights of NMFS Responses to AMSA June 6, 1997 Comments

"The four­level approach provides a logical method to gather and organize data for the identification of EFH. There is a natural incentive to gather and use information from progressively higher levels, because this will enable NMFS and the Councils to target their habitat conservation efforts to ensure that the most productive habitats receive greater attention. The rule has been modified to reinforce this intention. Councils are required to demonstrate that the best scientific information available was used in the identification of EFH." - page 66536

"NMFS assumed that all forms of adverse impacts, including those from fishing, were included as cumulative impacts on EFH. However, NMFS has modified the rule to further clarify this intent. Impacts of fishing and non­fishing activities should be considered when a cumulative impacts analysis is conducted..." - page 66538

"Non­fishing and fishing impacts are held to two different levels of scrutiny because of legal differences in how the impacts are addressed. Fishing impacts, as required by the Magnuson­Stevens Act, must be minimized to the extent practicable by implementing conservation and management measures. For non­fishing activities, NMFS is required to provide EFH conservation recommendations to action agencies for all actions that may have an adverse impact on EFH. NMFS and the Councils control fishing activities through regulation, whereas recommendations by NMFS and the Councils on non­fishing activities are advisory. The action agency then considers NMFS' recommendations according to its statutory requirements. The emphasis placed on non­fishing in the coordination, consultation, and recommendation process will depend on the level of impact from each." - page 66540

"NMFS does have authority to issue the coordination, consultation, and recommendation regulations. Section 305(d) of the Magnuson­Stevens Act gives the Secretary the authority to issue regulations to carry out any provision of the Act. This rulemaking authority applies directly to the EFH coordination, consultation, and recommendation provisions of the Magnuson­Stevens Act." - page 66542

"No consultation is required until the Secretary has approved an FMP amendment identifying EFH. The Councils are required to submit these amendments to the Secretary by October 11, 1998. Once EFH is identified, completed actions such as issued permits do not require consultation. Permit renewals, modifications, or reviews are a Federal action that could result in further consultation. Delegated programs will require consultation at the time of delegation or renewal of delegation. All Federal funding for programs that may have an adverse effect on EFH will trigger consultation. NMFS encourages agencies funding programs that may adversely affect EFH to initiate programmatic consultation to evaluate their programs. Once funds are dispersed to a non­Federal entity, they are no longer considered Federal funds. Therefore, non­Federal entities receiving Federal funds for certain actions are not required to consult on these actions." - page 66544

"NMFS' coordination, consultation, and recommendation procedures include opportunities for public involvement, and all Council meetings are open to the public. Most existing environmental review processes, which can be used to satisfy the EFH consultation requirements, already include opportunities for applicants and the public to participate, (e.g., permit reviews under the Clean Water Act section 404 program)." - page 66544

"The action agency is responsible for making an initial determination of whether its activity is going to have an adverse effect on EFH." - page 66544
NMFS did not respond to several of AMSA concerns including why cost/benefit analyses are recommended for fishing activities, but are not recommended to be considered for non-fishing activities. AMSA had recommended that FMPs should identify the relative costs of conservation and enhancement measures to the expected benefits to the EFH, and to the fishery. Also, AMSA had recommended that the rule recognize that some "less environmentally harmful alternatives" may be available for some activities or projects, but costs in relation to the incremental benefits make the alternatives inappropriate. AMSA felt that the rule should also recognize that some alternative activities or projects, while less environmentally harmful, may increase risks to public health or safety and may be deemed inappropriate.

AMSA's Water Quality Committee will discuss whether AMSA should submit additional comment on the interim final rule during its meeting on February 4 in San Antonio. If you have additional comments, please forward them to Mark Hoeke, at the AMSA National Office, no later than February 10, 1998. Comments may be faxed at 202/833-4657, or emailed to mhoeke@amsa-cleanwater.org.

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