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ESSENTIAL FISH HABITAT CONSULTATION GUIDANCE Appendix 2 - Examples of EFH Documents
Example of a Finding for FWCA/CWA/RHA
Example of Language Indicating That NMFS Cannot Make a Finding
Example of Response to a Request For Concurrence
Example of an Interim Response Letter
Example of a Programmatic Consultation on a Forest Plan
Example of a Request for a General Concurrence
Example of a General Concurrence for Corps Projects
Example of a General Concurrence for Corps Permits
General xxxx
U.S. Army Corps of Engineers
North Atlantic Division
New York, NY
Dear General xxxx:
The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) requires Federal agencies such as the Army Corps of Engineers (ACOE) to consult with the Secretary of Commerce regarding any action or proposed action authorized, funded, or undertaken by the agency that may adversely affect Essential Fish Habitat (EFH) identified under the Act. The first designations of EFH will become effective in March 1999 after they are approved by the Secretary. National Marine Fisheries Service (NMFS) personnel have discussed the new EFH requirements with your staff and both agencies have agreed to use the National Environmental Policy Act (NEPA) process to carry out EFH consultations for ACOE civil works projects throughout the North Atlantic Division as described below.
The EFH regulations, 50 CFR Section 600.920(e)(3), enable Federal agencies to use existing consultation/environmental review procedures to satisfy the MSFCMA consultation requirements if the existing procedures meet the following criteria: 1) the existing process must provide NMFS with timely notification of actions that may adversely affect EFH (600.920(e)(i)); 2) notification must include an assessment of impacts of the proposed action (600.920(g)); and, 3) NMFS must have made a finding pursuant to section 600.920(e)(3) that the existing process satisfies the requirements of section 305(b)(2) of the MSFCMA.
NMFS finds that the NEPA process used by the ACOE North Atlantic Division for civil works projects (navigation, shoreline stabilization, environmental remediation, flood control, etc.) may be used to satisfy the consultation requirements of the MSFCMA provided the ACOE and NMFS adhere to the following steps:
1. Notification
The ACOE will provide NMFS with timely notification of actions that may adversely affect EFH. Wherever possible, NMFS should have at least 60 days notice prior to a final decision on an action, or at least 90 days if the action would result in a substantial adverse impact to EFH. These time frames will allow NMFS to develop EFH conservation recommendations.
Although NMFS and the ACOE typically coordinate early in the project planning, notification for the purposes of the EFH consultation will usually occur when NMFS receives a draft Environmental Impact Statement (EIS) or Environmental Assessment (EA). This notification must clearly state that the ACOE is initiating EFH consultation, and it must be accompanied by an EFH Assessment. In order for the EA process to serve as the EFH consultation, ACOE must provide NMFS a draft EA and delay signing a Finding of No Significant Impact until after the agency responds to NMFS' EFH recommendations.
2. EFH Assessment
The draft NEPA document will include an assessment of the impacts of the proposed action on EFH in a chapter or section titled "EFH" or something similar enough to be easily identified within the document.
The EFH assessment will include 1) a description of the proposed action; 2) an analysis of individual and cumulative effects of the action on EFH, the managed species, and associated species such as major prey species, including affected life history stages; 3) the ACOE's views regarding effects on EFH; and, 4) a discussion of proposed mitigation, if applicable.
The draft NEPA document may incorporate such information by reference to another EFH Assessment prepared for a similar action, supplemented with any relevant new project-specific information, provided that 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 assessment documents. These documents will be provided to NMFS with the draft EIS or EA.
In cases where there is an existing NEPA document for a civil works project, an EFH consultation should be completed prior to a new action such as maintenance dredging of a Federal navigation project. At that time, the EFH consultation can be accomplished through the development of a supplemental EIS or EA.
3. NMFS EFH conservation recommendations
Upon review of the draft EIS or EA, NMFS will develop EFH conservation recommendations as part of its comments on the draft NEPA document, in a separate section of the NMFS comment letter titled "EFH Conservation Recommendations." NMFS will provide its recommendations during the established comment period under NEPA.
4. ACOE Response
Under section 305(b)(4)(B) of the MSFCMA, the ACOE has a statutory requirement to provide a written response to NMFS within 30 days after receiving the NMFS EFH Conservation Recommendations. If the ACOE is not able to respond fully within 30 days, the ACOE may send a preliminary response stating that they have received NMFS recommendations, will consider them fully, have not yet made a decision on the project, but will respond to NMFS recommendations in detail, in a letter or within the final EIS or EA. The ACOE then must respond to the recommendations by letter or within the final EIS or EA in a section or chapter clearly labeled as such. The ACOE response must be provided to NMFS at least 10 days before the ACOE signs a Finding of No Significant Impact or a Record of Decision, to allow time for dispute resolution if necessary.
The ACOE response must include a description of measures proposed by the ACOE for avoiding, mitigating, or offsetting the impact of the activity on EFH, as required by section 305(b)(4)(B) of the MSFCMA and 50 CFR 600.920(j). In the case of a response that is inconsistent with NMFS conservation recommendations, the ACOE must explain its reasons for not following the recommendations, including the scientific justification for any disagreements with NMFS over the anticipated effects of the action or the measures needed to avoid, minimize, mitigate, or offset such effects.
5. Dispute Resolution
If an ACOE decision is inconsistent with NMFS EFH conservation recommendations, NMFS will endeavor to resolve any such issues at the field level wherever possible, typically in a meeting between the NMFS Regional Administrator and the ACOE District Engineer. However, 50 CFR 600.920(j)(2) allows the NOAA Assistant Administrator for Fisheries to request a meeting with an ACOE headquarters official to discuss the proposed action and opportunities for resolving any disagreements.
Conclusion
If you agree with the procedures described in this finding, please indicate your agreement in writing.
If you have any questions on this matter, please contact xxxx for assistance.
Sincerely,
Regional Administrator
EXAMPLE OF A FINDING FOR FWCA/CWA/RHA
Mr.
Chief, Regulatory Division
U.S. Army, Corps of Engineers
20 Mass. Ave., N.W.
Washington D.C. 20314
Dear Mr. :
The purpose of this letter is to document discussions between staff in the National Marine Fisheries Service (NMFS) and Army Corps of Engineers (ACOE) regarding NMFS making a "finding" that the individual permit public notice (IP) process used by the ACOE to permit projects under section 404 of the Clean Water Act, section 10 of the Rivers and Harbors Act, and section 103 of the Marine Protection Research and Sanctuaries Act can be used to satisfy the consultation requirements of the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA). The provisions for such a finding are found in the essential fish habitat (EFH) regulations (50 CFR 600.905).
Section 600.920(e)(3) states that EFH consultation may be consolidated with existing interagency consultation procedures if: 1) the existing process provides NMFS with timely notification of actions that may adversely affect EFH; 2) notification includes an assessment of impacts of the proposed action as discussed in section 600.920 (g); and, 3) NMFS has made a finding pursuant to section 600.920(e)(3) that the existing process satisfies the requirements of section 305(b)(2) of the MSFCMA.
With respect to the first criterion above, ACOE's IP process for authorizing projects in jurisdictional waters provides the NMFS with timely notification in that a public notice is generally provided at least 60 days before the ACOE's final decision on the project. With respect to the second criterion, the Corps public notices generally do not include an assessment of the effects of the proposed action on fish habitat. However, in discussions with NMFS staff, the ACOE has agreed to implement at the District level the process described below. This process will allow EFH assessments to be incorporated into ACOE public notices, or into other decision documents, as appropriate.
Incorporation of EFH Consultation into Corps Individual Permit Process
At the District and Regional level, NMFS and ACOE staff meet to develop a regional finding. As part of developing that finding, NMFS and ACOE discuss the information needs for EFH consultation and the types of projects that might require expanded consultation. The essential fish habitat (EFH) regulations state that expanded consultation must be used for projects that would result in substantial adverse effects to EFH (50 CFR 600.920(i)). For any particular project, ACOE should make a determination of whether abbreviated or expanded consultation is appropriate. However, if NMFS believes that expanded consultation is required for a particular project, NMFS should inform the Corps of this conclusion at the earliest opportunity, such as in pre-application meetings.
For those projects requiring only abbreviated consultation, the ACOE public notice will include brief information on the effects of the proposed action on EFH and the ACOE's views regarding such effects, including whether or not the effects are expected to be substantial (e.g, "This project will fill 5.3 acres of tidal flats that have been described as EFH for juvenile summer flounder. Loss of this nursery habitat may adversely affect summer flounder. The District Engineer has made a preliminary determination that the adverse effect on EFH will not be substantial.")
For those projects requiring expanded consultation, the ACOE will provide NMFS with information on impacts to EFH in an EFH Assessment provided with the public notice. If appropriate, the ACOE may incorporate the EFH Assessment into a draft Environmental Assessment (EA) or draft Statement of Findings (SOF). Regardless of whether the EFH Assessment is part of a draft SOF or EA, EFH should be addressed in the final EA or SOF. The EFH Assessment will be provided to NMFS in a time frame sufficient to allow NMFS to develop EFH conservation recommendations (generally 30 days, but more or less time may be needed depending on the complexity of the project).
Incorporation of other MSFCMA requirements into ACOE Individual Permit Process
Within the public notice comment period, or within 30 days of receiving an EA, SOF, or other EFH assessment, NMFS will provide EFH conservation recommendations as part or all of its comments on the public notice or other document containing the EFH assessment. The EFH conservation recommendations will be clearly labled as such. Under section 305(b)(4)(B) of the MSFCMA, the ACOE has a statutory requirement to respond in writing within 30 days to the NMFS recommendations. If the ACOE will not make a decision within 30 days of receiving NMFS EFH Conservation Recommendations, the ACOE should provide NMFS with a letter within 30 days to that effect, and indicate when a response will be provided (e.g., we have received your recommendations, we will consider them fully, we have not yet made a decision on the project, but will respond to your recommendations fully when we have made a decision in ## days.) The ACOE will then respond in detail in the final EA, SOF, or letter to NMFS, at least 10 days before the permit decision, as required by the MSFCMA and EFH regulations. The ACOE's document will clearly label the part that contains the required response to NMFS.
Summary of EFH Consultation Process for ACOE Individual Permits
1) Notification - Notification will occur when NMFS receives a public notice from the ACOE on the project. The public notice will clearly state that the ACOE is initiating EFH consultation and that an EFH Assessment is included.
2 EFH Assessment -
a) For those projects that require abbreviated consultation, the ACOE will put a brief EFH Assessment in the public notice (e.g, "This project will fill 5.3 acres of EFH for juvenile summer flounder. Loss of this nursery habitat may adversely affect summer flounder, but the ACOE has made a preliminary determination that the adverse effect on EFH will not be substantial.")
b) For those projects that the ACOE determines require expanded consultation, the ACOE will provide NMFS with a detailed EFH Assessment. This Assessment may be a separate document or it may be a component of another document, as long as the EFH Assessment is clearly identified. The EFH Assessment will be provided to NMFS in a time frame sufficient to allow NMFS to develop EFH conservation recommendations (generally 30 days, but more or less time may be needed depending on the complexity of the project).
c) If, upon receiving a public notice (or in pre-application consultation), NMFS concludes that a project has the potential for substantial adverse impacts on EFH, NMFS will so inform the ACOE and request that the ACOE conduct expanded EFH consultation and provide a detailed EFH Assessment. This request may occur after ACOE initiates abbreviated EFH consultation or before any EFH consultation occurs. If a public comment period for the project has already begun, NMFS may request an extension of the comment period (under Part II. 4 of the 404(q) MOA with Army) to allow time for the ACOE to provide the EFH Assessment, and for NMFS to develop EFH conservation recommendations. If the ACOE does not agree to conduct expanded consultation, NMFS will provide EFH conservation recommendation based on whatever information has been provided.
3) EFH Conservation Recommendations - NMFS will provide EFH conservation recommendations as part of NMFS comments on the public notice, clearly labeled as such.
4) Response - The ACOE will respond to NMFS EFH conservation recommendations in either a letter or a revised SOF or EA. This response will be clearly labeled as such. The MSFCMA requires that such a response be sent within 30 days of receiving NMFS EFH recommendations. If the ACOE will not be making a decision within 30 days of receiving NMFS recommendations, the ACOE will send a preliminary response within 30 days stating that the ACOE has received NMFS EFH recommendations, will consider them fully, that the ACOE has not yet made a decision on the project, but will respond to NMFS EFH recommendations fully when a decision is made in ## days. The complete response will be sent to NMFS at least 10 days before the ACOE issues the permit.
Finding
With the implementation of the process described above, NMFS finds that the ACOE IP process satisfies the EFH consultation requirements of section 305(b) of the MSFCMA.
Conclusion
If you agree with the procedures described in this finding, please respond and indicate your agreement in writing.
Sincerely,
NMFS F/HC OD
EXAMPLE OF LANGUAGE INDICATING THAT NMFS CANNOT MAKE A FINDING
Dear Federal agency staff:
NMFS has determined that your agency's current environmental review process pursuant to (identify the statute) does not meet the consultation requirements of the MSFMCA and EFH regulations because (explain reasons, such as insufficient documentation of effects, actions that are not covered by the existing process (CEs under NEPA), etc.) Accordingly, NMFS does not concur with your conclusion that this process will adequately serve as a means to conduct EFH consultation.
We would like to discuss with you possible changes to your process that will allow us to use this existing process for EFH consultations. One approach might be to (make a suggestion on how to modify the process to meet the MSFMCA and IFR requirements). We may identify other options in additional discussions. Please contact my office so we can continue (or initiate) efforts to develop a procedure that will allow efficient implementation of the EFH consultation requirements.
Sincerely,
NMFS staff
EXAMPLE OF RESPONSE TO A REQUEST FOR NMFS CONCURRENCE WITH AN AGENCY'S "NO EFFECT ON EFH" DETERMINATION
Dear Corps staff:
In your letter of March 31, 1999, you asked for NMFS's concurrence with your conclusion that the proposed Myway Highway Bypass in Tampa, Florida, will have no adverse effects on EFH. Neither the EFH consultation provisions of the Magnuson-Stevens Act nor NMFS's EFH regulations have any provisions regarding such a concurrence. Therefore, NMFS will not provide the requested concurrence. The Army Corps of Engineers (ACOE), as the lead Federal action agency, must make the initial determination of whether the action may adversely affect EFH, and then proceed with consultation if, in the ACOE's view, the project may adversely affect EFH. If the ACOE determines that the action would not adversely affect EFH, then it has no statutory obligation to consult pursuant to the Magnuson-Stevens Act EFH consultation requirements.
EXAMPLE OF A PRELIMINARY RESPONSE LETTER
Joe Fishmann
NMFS
Swampville, LA
Dear Mr. Fishmann:
On April 1, 1999, the National Park Service (NPS) received your EFH conservation recommendations for the Angel Bend Recreation Center. The NPS will give your recommendations full consideration as we develop the final Environmental Impact Statement (EIS) for this project. Pursuant to section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation Management Act (MSFCMA), NPS is required to respond to your EFH conservation recommendations within 30 days of receiving them. However, the final decision on this project will not be made until all public comment has been reviewed and appropriate changes made to the document. We anticipate that will occur in December of 1999. At that time, NPS will provide the response required by the MSFCMA, in the "Response to Comments" section of the final EIS, which will be provided to you at least 10 days before the Record of Decision is signed.
Sincerely,
Mark Myword
National Park Service
EXAMPLE OF A PROGRAMMATIC CONSULTATION ON A FOREST PLAN
Note: Sections 1-3 were written by the Forest Service as the EFH Assessment that was sent to NMFS. The FS EFH Assessment was incorporated into this document by NMFS. Sections 4-6 were written by NMFS as the EFH conservation recommendations and other information needed to document a programmatic consultation.
Essential Fish Habitat Programmatic Consultation - Hundred-Acre-Wood Forest Management Plan
1.0 Program Description: The Hundred-Acre-Wood Forest Management Plan (HAW Plan), developed by the US Department of Agriculture, Forest Service (USFS), describes the five-year plan for management of the HAW. The essential elements of the plan are:
2.0 Essential Fish Habitat in the HAW
Based on the North Pacific Fishery Management Council (NPFMC) EFH descriptions for this area, twelve of the streams in the HAW and their associated riverine wetlands are EFH for woozelfish larvae, juveniles, and spawning adults (Figure 1). These streams and wetlands serve as spawning areas for adults and refuge areas for larval and juvenile woozelfish. In addition, the NPFMC has designated Tyre Creek as a Habitat Area of Particular Concern (HAPC) because the stream contains numerous gravel bars that support woozelfish spawning in an area where gravel bars are scarce.
3.0 Assessment of Effects on Essential Fish Habitat (EFH)
Impacts associated with timber harvest -The direct impacts of timber harvest on aquatic habitat include increased turbidity and temperature in the stream itself, and loss of the riparian habitat structures within the stream, such as large woody debris (LWD) and gravel beds. The indirect impacts of timber harvest include increased flooding. These impacts result in both the permanent loss of habitat as well as habitat degradation (Murphy, 1995). Of the 25 acres designated for timber harvest, 8 acres contain 4 streams designated as EFH (including Tyre Creek, a HAPC). If timber harvest occurs adjacent to these streams, their function as EFH could be impaired through loss of LWD, increased water temperature caused by reduced shading, and increased turbidity caused by runoff from the cleared areas. The important spawning areas in Tyre Creek could be degraded by fine sediment deposition, and possibly rendered unusable by spawning fish. The 50-foot buffers proposed along these streams will reduce the impacts of timber harvest, but measurable adverse effects are still likely.
Impacts associated with roads and stream crossings - Of the 12 stream crossings proposed, only two occur in EFH. However, one of those crossings (HAWRC-6) is proposed for Tyre Creek, and the other (HAWRC-8) is immediately downstream of the confluence of Tyre Creek and Sanders Stream. Although these crossings can be designed to minimize their effect on the stream bank, increased turbidity in the area of the crossing is likely to result because forest roads tend to concentrate runoff and direct it to road stream crossings.
Effects of recreational use - the current hiking trails cross EFH, but no adverse impacts are anticipated from their continued use. The exact location of the primitive campsites has not been specified, but even if they are located next to streams, minimal adverse effects are anticipated. The proposed cross country ski center will be located in the Sanders Stream watershed, where it could adversely affect EFH, depending on its design and exact location (details not yet developed).
Effects of Wilderness Designation - the 25 acres designated as the HAW Wilderness Area contain 10 streams identified as EFH. Designation as a Wilderness Area will afford considerable protection to these areas.
Cumulative Effects - The HAW is located in a region where timber harvest occurs in approximately 40% of the existing forest, which is predominantly privately-owned. Clear cutting along some streams in the lower part of the watershed has resulted in degraded riparian habitat for several of the streams in the county, but the adoption of minimum 25-ft no-harvest buffers along perennial streams by the Platt County Planning Board in 1992 has reduced further damage from clear cuts. Woozelfish runs appear to be stable, based on annual counts over the past decade at Sable Bridge. The cumulative effect of implementation of the HAW Plan will probably be minimal in a regional context, but there could be significant localized adverse effects on streams already affected by clear cutting adjacent to the streams, and on the Tyre Stream HAPC, which would be adversely affected by both timber harvesting and a road crossing under the proposed HAW Plan.
4.0 EFH Conservation Recommendations
Roads and stream crossings -
1)Relocate HAWRC-6 0.5 miles north, above Tyre Creek, to avoid impacts on the HAPC.
2) No other roads should be constructed in the watershed of the Tyre Creek HAPC.
3) Construct HAWRC-8 as a temporary bridge with no structures in the stream itself, and remove it as soon as timber harvest west of the crossing is completed.
Relocation of HAWRC-6 and a prohibition on road construction in the Tyre Creek watershed will protect this important spawning area from the increased sedimentation associated with forest road construction. Construction of a temporary bridge at HAWRC-8 will minimize impacts on Sanders Stream, which provides access to Tyre Creek for migrating fish.
Timber harvest -
4) A 125-ft no-harvest buffer should be established along all streams identified as EFH.
5) A 50-ft no-harvest buffer should be established along all other streams in timber harvest area.
No-harvest buffers will protect streams against increased sedimentation and loss of riparian habitat. Research has shown that buffers greater than 100 ft are adequate to protect most riparian functions, and that buffers of 50-100 ft afford minimal protection (Johnson and Ryba, 1992).
Recreational use - Due to a lack of information on the specific design and location of the cross-country ski center, no EFH conservation recommendations can be provided at this time. When specific designs for the center are developed, the USFS should determine if adverse impacts on EFH may occur, and complete an individual EFH consultation with NMFS at that time. The USFS should be able to incorporate EFH consultation into USFS's existing National Environmental Policy Act (NEPA) process, as described in NMFS's February 14, 1999 finding on the use of the USFS's NEPA process to conduct EFH consultation.
5.0 Conclusion:
Based on our review of the information provided by USFS on the HAW Plan and its effects on EFH, NMFS has provided the EFH conservation recommendations above regarding stream crossings and timber harvest. NMFS has also determined that one proposed project, the cross-country ski center, may require individual consultation.
As required by section 305(b) of the MSA, USFS must respond in writing within 30 days of receiving these EFH conservation recommendations. USFS must include in this response a description of measures USFS proposes implementing to avoid, minimize, or mitigate adverse impacts on EFH. If USFS's response is inconsistent with NMFS EFH conservation recommendations, USFS 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 actions and the measures needed to avoid, minimize, mitigate, or offset such effects.
If USFS adopts the NMFS EFH conservation recommendations as management area prescriptions, no further EFH consultation is required (except in the case of the ski center, where individual consultation may be needed when design details are available). If USFS does not adopt these EFH conservation recommendations as management area prescriptions, any time a specific project will be authorized without these conservation recommendations, USFS must notify NMFS that the EFH conservation recommendations will not be implemented and explain why.
6.0 Revision, Tracking, and Review
If any changes are made to the HAW Plan program such that there may be different adverse effects on EFH, USFS must notify NMFS and the agencies will discuss whether the programmatic conservation recommendations should be revised. USFS will provide NMFS with an annual report of all timber harvest, bridge construction, and road construction activities undertaken under the HAW Plan. Every five years, NMFS will review these programmatic EFH conservation recommendations and determine whether they should be updated to account for new information or new technology.
Christopher Roberts
Fishery Biologist, NMFS
References
Johnson, A.W. and D.M. Ryba. 1992. A literature review of recommended buffer widths to maintain various functions of stream riparian areas. King County Surface Water Management Division, Seattle, WA.
Murphy, M.M. 1995. Forestry impacts on freshwater habitat of anadromous salmonids in the Pacific northwest and Alaska -- requirements for protection and restoration. NOAA Coastal Ocean Program Decision Analysis Series No. 7, NOAA Coastal Ocean Office, Silver Spring, MD. 156 pp.
Figure 1. Map of Hundred-Acre-Wood, including proposed management areas, EFH, and HAPC
Appendix 1. Consultation History
(chronology of when the agencies met or otherwise consulted)
EXAMPLE OF A REQUEST FOR GENERAL CONCURRENCE
David Larsen
Regional Administrator
National Marine Fisheries Service
Fishville, Tennessee 44444
Dear Mr. Larsen:
The Army Corps of Engineers Memphis District (ACOE-MD) requests that the National Marine Fisheries Service grant a General Concurrence to avoid the need for project-by-project Essential Fish Habitat (EFH) consultations between our agencies for a number of our Federal navigation projects. Specifically, we request a General Concurrence for routine maintenance dredging of six small Federal channels and anchorages throughout the Memphis District, as well as the repair and maintenance of breakwaters, jetties, and revetments associated with these Federal navigation projects. The six projects are:
Jackson Rock Harbor Twelve Rocks Harbor
Dog Inlet Pigeon Harbor
Turtle Harbor Donut Harbor
For purposes of the General Concurrence, routine maintenance dredging would include dredging of all or portions of an authorized Federal navigation project that has been dredged within the previous 5 years. We also request that the General Concurrence cover disposal of the dredged material at the previously-used disposal site for each project. These actions are all similar in nature and in their impact on EFH. These projects and disposal locations are described on pages 35-46 of the 1997 edition of Overview of Federal Navigation Projects in the Memphis District. A copy of this document has previously been provided to your Habitat Conservation Division staff, but we will provide another copy at your request.
Based on the EFH descriptions and maps distributed by the regional fishery management council, these six projects include EFH for juvenile king flounder and adult jewel crabs. As is detailed in the attached* report, because these six small harbors are dynamic, sandy areas that shoal quickly and have been dredged regularly for many years, we believe that continuing to maintain the harbors on a periodic basis will cause minimal impacts to flounder, crabs, and their habitat, both individually and cumulatively. {*note: we would expect a justification for this "minimal impact" determination that has a level of detail comparable to what's in the FMPs}
Thank you very much.
Sincerely,
L. Virgil Preston
Colonel, Corps of Engineers
attachment {this would be the analysis that justifies the "minimal impact" determination.}
EXAMPLE OF A GENERAL CONCURRENCE FOR PROJECT CONDUCTED BY THE CORP OF ENGINEERS (CORRESPONDS TO THE THE EXAMPLE OF A REQUEST FOR A GC) WHERE NMFS AGREES TO DO TRACKING
Colonel L. Virgil Preston, District Engineer
U.S. Army Corps of Engineers, Memphis District
252 Harris Lane
Winston, Tennessee 44444
Dear Colonel Preston:
Thank you for your March 5, 1999 request for the National Marine Fisheries Service (NMFS) to develop a General Concurrence to cover the required essential fish habitat (EFH) consultations between our agencies for certain operation and maintenance activities conducted by the Army Corps of Engineers (ACOE) for Federal navigation projects. Section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act requires an EFH consultation for any action or proposed action authorized, funded, or undertaken by a Federal agency that may adversely affect EFH. For certain types of actions that are similar in nature and impact on EFH, and will result in no more than minimal adverse effects to EFH individually and cumulatively, NMFS may issue a statement of General Concurrence and further consultation is not required. NMFS grants a General Concurrence in accordance with the requirements of 50 CFR 600.920(f) after appropriate consultation with the Federal agency, the relevant fishery management council, and the public.
You requested that NMFS provide a General Concurrence for routine maintenance dredging of ten specific Federal channels and anchorages throughout the ACOE Memphis District, as well as the repair and maintenance of breakwaters, jetties, and revetments associated with these Federal navigation projects. Routine dredging would include dredging of all or portions of an authorized Federal navigation project that has been dredged within the previous 5 years. In most cases, these are predominantly sandy channels and anchorages that shoal rather rapidly after being dredged. You also requested that the General Concurrence cover disposal of the dredged material at the previously-used disposal site for each project.
As noted in your letter, the 1997 edition of Overview of Federal Navigation Projects in the Graceland District provides the names, locations, and descriptions of each affected Federal navigation project and dredged material disposal site, including a description of the type of dredging equipment typically used for each project. Your letter also identified the species and life stages of fish and shellfish whose EFH would be affected by maintaining these projects, and concluded that the specified actions individually and cumulatively would cause minimal adverse effects to EFH and associated species.
NMFS has reviewed your request and the supporting environmental analysis that you provided. In that analysis you indicate that effects of these activities will be no more than minimal individually and cumulatively because {summarize supporting information, which should include the specific baseline environmental conditions against which the effects are being evaluated}. NMFS has also coordinated with the Gulf of Mexico Fishery Management Council (Council) and reviewed comments provided by the public in response to notice published by the Council in their September 1999 newsletter. Based on this information, we agree that routine maintenance of the projects you listed would normally result in no more than minimal adverse effects on EFH, either individually or cumulatively. However, to protect the EFH of spawning and juvenile king flounder, NMFS has determined that these actions only meet the criteria in 50 CFR 600.920(f)(2) and qualify for a General Concurrence if they are modified by prohibiting all dredging during the king flounder spawning and incubation season, which in most years spans the months of March, April, and May.
A recent study indicates that in years of an El Niño event, the spawning of king flounder is delayed by one to two months (Cousteau 1998). Therefore, pursuant to 50 CFR 600.920(f)(4), NMFS requests notification in advance of planned maintenance dredging of these projects so that we can determine whether modifications to the above seasonal restrictions are necessary to ensure that the actions covered under this General Concurrence will result in no more than minimal adverse effects to EFH. Such notification would also enable NMFS to track individual actions to gauge potential cumulative effects, so the ACOE would not need to track the actions separately. Upon notification of pending actions by the ACOE, NMFS may require further consultation on a case-by-case basis. If additional consultation on an action is necessary, NMFS will inform the ACOE in writing within 15 days of receiving your notification of upcoming dredging. Based on coordination with your staff, we understand that this time frame is workable from the ACOE's perspective.
NMFS will review this General Concurrence every three years and may revise or revoke it if new information indicates that the covered actions are having more than minimal adverse effects on EFH. Should any such modifications become necessary, we will notify you as early as possible. If you or your staff have any questions about this General Concurrence, please contact Alan Fergus in our Memphis field office at 999-555-8888.
Sincerely,
David Larsen
Regional Administrator
Reference:
Cousteau, J. 1998. El Niño really messes up spawning seasons. Flounder journal 25:16-32.
EXAMPLE OF A GENERAL CONCURRENCE FOR PROJECT PERMITTERD BY THE CORP OF ENGINEERS WHERE ACOE AGREE TO DO TRACKING
Colonel Elmer Foster, District Engineer
U.S. Army Corps of Engineers, New York District
1234 Mouse Way
Haddocktown, New York 99999
Dear Colonel Foster:
Thank you for your March 16, 1999 request for the National Marine Fisheries Service (NMFS) to develop a General Concurrence to cover the required essential fish habitat (EFH) consultations between our agencies for certain minor construction projects authorized by the Corps of Engineers (COE) under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. Section 305(b)(2) of the Magnuson-Stevens Fishery Conservation and Management Act requires an EFH consultation for any action, or proposed action, authorized, funded, or undertaken by a Federal agency that may adversely affect EFH. For certain types of actions that are similar in nature and impact on EFH, and will result in no more than minimal adverse effects to EFH individually and cumulatively, NMFS may issue a statement of General Concurrence that further consultation is not required. NMFS may grant a General Concurrence in accordance with the requirements of 50 CFR 600.920(f) after appropriate coordination with the Federal agency, the relevant fishery management council, and the public.
You requested that NMFS provide a General Concurrence for the following categories of activities authorized through the COE regulatory program: (1) pile-supported docks with maximum dimensions of 100 feet long and 4 feet wide, provided the deck surface is elevated at least 5 feet above any special aquatic site; (2) individual boat moorings; (3) maintenance dredging of up to 5000 cubic yards of material with upland disposal; and (4) repair and/or replacement of currently serviceable coastal structures (excluding culverts) with no expansion in size. The repair and/or replacement of culverts was excluded from the list of covered actions because individual review of these projects is necessary to determine whether it may be appropriate to increase culvert diameters to improve hydrology at existing tidal restrictions.
Your request indicated that on an annual basis, the COE New York District authorizes approximately 150 docks meeting the above specifications, 200 moorings, 40 reconstruction projects, and 75 small maintenance dredging projects with upland disposal. Based on coordination with NMFS personnel, the COE determined that projects involving these specific types of work typically cause minimal adverse effects to aquatic resources, both individually and cumulatively. Therefore, you requested that NMFS provide a General Concurrence for these activities.
NMFS has reviewed your request and the supporting environmental analysis that you provided. In this analysis you conclude that impacts of these activities will be no more than minimal because {summarize supporting information, which should include the specific baseline environmental conditions against which the effects are being evaluated}. NMFS has also coordinated with the New England Fishery Management Council (Council) and reviewed comments provided by the public in response to notice published by the Council in their September 1999 newsletter. Based on this information, we agree that the categories of actions you identified meet the criteria in 50 CFR 600.920(f)(2), provided that the COE tracks individual actions and submits to us an annual summary of the number and locations of projects authorized pursuant to this General Concurrence. EFH for Atlantic cod, northern halibut, and brown shrimp is located throughout the New York District and may be affected by these actions, but for the reasons explained in the analysis that accompanied your request for a General Concurrence, the effects of these actions on EFH is expected to be negligible.
NMFS requests that you provide to the Metropolis field office the information you collect as a result of tracking the actions covered by this General Concurrence. This information should be provided to NMFS by June 1 of each year and published in the Metropolis Daily News. The information provided should include the number and type of actions, as well as the amount of EFH adversely affected.
NMFS will review this General Concurrence every five years and may revise or revoke it if new information indicates that the covered actions are having more than minimal adverse effects on EFH. Should any such modifications become necessary, we will notify you as early as possible. If you or your staff have any questions about this General Concurrence, please contact Clark Kentrel in our Metropolis field office at 999-555-8888.
Sincerely,
Donald Dawson, Ph.D.
Regional Administrator
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