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Appendix 1

HABITAT CONSERVATION
POLICY FOR NATIONAL MARINE FISHERIES SERVICE

Policy Framework

Traditionally, the habitat conservation activities of the National Marine Fisheries Service (NMFS) have been based primarily on the policies developed in response to the Fish and Wildlife Coordination Act (FWCA) and the National Environmental Policy Act (NEPA). These laws give NMFS an important advisory role, primarily with respect to reviewing and commenting on proposed Federal projects, licenses, permits, etc., which could affect living marine resources. Because of this advisory role, NMFS' habitat conservation activities have been determined largely by the policies, actions, and deadlines of others. For the most part, these activities have dealt primarily with general concerns of habitat loss and degradation and not with specific habitat problems relating to the species of living marine resources for which NMFS has primary management responsibilities (i.e., species (1) covered or subject to being covered under Fishery Management Plans prepared under the Magnuson Fishery Conservation and Management Act (Magnuson Act) and (2) assigned to NMFS under the Marine Mammal Protection Act and the Endangered Species Act). Within this framework, these activities have been successful in carrying out the objectives of the FWCA and NEPA. However, evolving mission and programs require the Agency to focus its activities on habitats important to the species referred to above.

In addition to the need for a change resulting from the foregoing, a number of events have occurred that give NMFS the opportunity to enhance substantially its overall role in habitat conservation. These include opportunities to use all of NMFS' legislative authorities to take an active role in habitat conservation and to ensure that it is appropriately considered in all of NMFS programs and opportunities to make the program more effective through strategic planning. Additional events include changing Federal and State roles under Administration policies and reduced Federal budgets.
Although NMFS' past role in habitat conservation was largely determined by the FWCA and NEPA, significant recent legislation particularly the Magnuson Act gives NMFS broader authority and more opportunities for achieving habitat conservation objectives. This Act also provides comprehensive authority to integrate habitat conservation throughout the Agency's conservation, management, and development programs. This can be accomplished through the Agency's strategic planning process, which is the mechanism for setting priorities based on NMFS' resources and responsibilities.

Changes in traditional Federal and State roles are expected to occur as a result of sorting out responsibilities among Federal, State, and local governments and shifting decisionmaking responsibility for a variety of policy, budgetary, and regulatory matters to State and local governments. Implementation of this policy will give State and local governments more control over activities that may be more appropriately conducted at those levels and, as a consequence, reduce direct Federal expenditures and involvement.
With respect to living marine resources and their habitats, the sorting out of responsibilities between State and Federal governments is complex. Generally, the States have overall responsibility within their inland and coastal waters (0-3 miles from shore) for management of living marine resources with the exception of marine mammals and endangered species. NMFS has been assigned the Federal management responsibility in partnership with the Regional Fishery Management Councils for fishery resources in the U.S. Fishery Conservation Zone (generally 3-200 miles). However, the Magnuson Act recognizes a need for management throughout the range of the species. Moreover, many of the species of living marine resources for which NMFS is responsible spend a portion of their life cycles in habitats primarily located in State waters such as rivers, wetlands, and estuaries. Many of these common property resources cross State as well as international boundaries. Therefore, consistent with the Magnuson Act, NMFS clearly has a role with respect to certain living marine resources located in State, interstate, and international waters. NMFS also has a long history of cooperation and interaction with the States on State/Federal fisheries activities under a number of authorities other than the Magnuson Act.

Policy

Habitat conservation activities will be responsive to the mission and programs of NMFS. The goal of NMFS' habitat conservation activities will be to maintain or enhance the capability of the environment to ensure the survival of marine mammals and endangered species and to maintain fish and shellfish populations which are used or are important to the survival and/or health of those used by individuals and industries for both public and private benefits - jobs, recreation, safe and wholesome food and products.
NMFS will direct its habitat conservation activities to assist the Agency in (1) meeting its resource management conservation, protection, or development responsibilities contained in the Magnuson Act, the Marine Mammal Protection Act, and the Endangered Species Act, and (2) carrying out its responsibilities to the U.S. commercial and marine recreational fishing industry, including fishermen, and the States pursuant to programs carried out under other authorities.
Since most of NMFS' programs under its broad mandates are influenced by habitat considerations, habitat conservation will be considered and included in the Agency's decisionmaking and in all of its programs. NMFS will bring all of its authorities to bear in habitat conservation. These authorities include those which give NMFS an active participatory role and those particularly the FWCA, which gave NMFS an advisory role. In carrying out its programs, NMFS' activities will be conducted in a fashion designed to achieve necessary orderly coastal development in a timely fashion while the renewability and productivity of the Nation's living marine resources are maintained or, where possible, enhanced. This action will also benefit other wildlife resources, such as migratory birds. Also, NMFS will use its scientific capabilities to carry out the research necessary to support its habitat conservation objectives.

Implementation

Implementation of the policy will be governed by general Federal policies such as the multiple use of coastal areas. Also, implementation will be governed by the principle that the Federal Government has an obligation to conserve the habitats of living marine resources for which it has primary management responsibility or which are the subject of NMFS' program, whether such habitats are under State or Federal jurisdiction. This will require close cooperation and coordination by NMFS with other NOAA elements, Federal and State agencies, the Regional Fishery Management Councils, and the commercial and recreational fishing constituencies. It is particularly important that NMFS and the States work cooperatively to define their respective roles with each directing its habitat conservation activities according to its responsibilities and capabilities.
While this policy emphasizes NMFS' domestic habitat conservation responsibilities, it does not preclude NMFS' participation in international habitat activities in support of obligations of the United States under international agreements. International habitat issues will continue to be addressed on a case-by-case basis depending upon the demands of the United States under the provisions of the governing treaty or convention.

Implementation Strategies

In consultation with its Regions and Centers, NMFS' Central Office will prepare guidance for the policy implementation recognizing that each Region has unique resource and/or development issues that require flexibility in addressing particular problems. The following implementation strategies will be used.

1. Each Region, working with the appropriate Center, and the Central Office, will establish a formal planning and coordinating mechanism to implement this policy on a continuing basis. At a minimum, this mechanism will be used to: (1) identify the living marine resources of importance and the major habitat threats to these resources; (2) enumerate the identified habitat issues in order of priority; (3) develop strategies to address these issues; and (4) oversee the integration of habitat considerations throughout all NMFS' programs. To accomplish the purposes of this planning and coordinating mechanism, NMFS will call on the Assistant Administrators of other elements of NOAA (e.g., Office of Ocean and Coastal Resource Management, Office of Oceanography and Marine Services), the States, the Regional Fishery Management Councils and others, as appropriate. The results of this mechanism will be incorporated into the objectives and subobjectives of NMFS' Strategic Plan as well as the performance contracts of its employees.

2. NMFS Research Centers will conduct environmental and ecological research, including long-term studies necessary to implement this policy. Research efforts will be coordinated with other elements of NOAA (e.g., National Ocean Service), the States and others, as appropriate. Research results will provide an integral part of the information basis for NMFS' activities related to its conservation, management, protection, and/or development responsibilities. The needs of NMFS' decisionmakers will be the essential consideration in determining research priorities. Specific research objectives and activities will determined through Regional and Center collaborating mechanism described previously. Dissemination of information to the public is and will remain one of NMFS' major objectives.
(3) Since the opportunities afforded by the Magnuson Act are important factors in developing and adopting this policy, in the future NMFS will rely to a greater degree on its partnership with the Regional Fishery Management Councils in habitat conservation as it affects those fisheries subject to Fishery Management Plans prepared by the Councils. The Councils provide a unique mix of representatives from the commercial and recreational fishing industries, conservation groups, State and Federal Governments, and the general public. Under this partnership, NMFS will assist the Councils to the extent possible.

(a) The Regional Fishery Management Councils should address habitat considerations in their fishery Management Plans, where applicable, based on the best available information. While threats to fishery habitat posed by sources other than fishermen subject to regulation under the Magnuson Act, an adequate description of the fishery, its maximum sustainable yield, or its optimum yield may require significant discussion of important habitat and threats to it.

At a minimum, Fishery Management Plans should include identification and descriptions of habitat requirements and habitats of the stock(s) comprising the management unit; assessment of the condition of these habitats, to the extent possible, as they relate to the continued abundance and distribution of the species; identification, where possible, of causes of pollution and habitat degradation; description of programs to protect, restore, preserve, and enhance the habitat of stock(s) from destruction or degradation; and, where appropriate, proposal of measures intended to preserve, protect, and restore habitat determined to be necessary for the life functions of the stock(s). Failure to describe adequately the condition of the fishery habitat and any likely changes to it may raise questions under several of the national standards and under section 303(a)(1) of the Magnuson Act. Where appropriate, existing Fishery Management Plans should be amended to meet these standards.

(b) NMFS must be prepared to respond to Councils in an agreed upon time when support or information is requested. Section 304(e) of the Magnuson Act authorizes NMFS to acquire the basic knowledge necessary to meet the Councils needs. Equally important, NMFS will establish a mechanism to systematically consider and follow up on the Council's recommendations for habitat conservation. If Council's recommendations are not accepted, NMFS will notify them of the reasons. If Council's recommendations are accepted, NMFS will adopt them and keep the Councils informed in a continuing basis regarding the results of actions taken to implement the recommendations. If the Secretary does not have the authority to carry out the Council's recommendations, the Secretary will submit the recommendations to the authorities having jurisdiction over the matter.

4. NMFS will continue to use procedures and options available under the FWCA and other advisory authorities to influence decisions about important habitats identified by NMFS.
These activities will include addressing decisions regarding dredge and fill projects. Outer Continental Shelf oil and gas development, ocean dumping, water diversion, artificial impoundments, energy facility siting, water quality degradation, and removal or degradation of tidal and intertidal wetlands.

5. NMFS will work closely with the States, the Interstate Marine Fisheries Commissions, and the Regional Fishery Management Councils to ensure that State/Federal Fishery Management Plans and the Councils' Fishery Management Plans are fully coordinated with regard to living marine resource habitat conservation. This coordination can be served through the Coastal Zone Management or State/Federal Action plan process which could also provide mechanisms for sharing responsibilities and costs.

6. Since other Federal, State, and local agencies are involved in living marine resource habitat matters, NMFS will support existing or new interagency operating arrangements to help define and assign appropriate roles and responsibilities.
These arrangements may be informal or formal.

7. NMFS will focus its freshwater habitat activities on anadromous species. This does not preclude NMFS involvement in a freshwater project if the project could adversely affect living marine resources for which NMFS has primary management responsibilities or which are the subject of a NMFS program.

8. Where possible, NMFS will become more actively involved with government agencies and private developers during preapplication or early planning stages. This involvement will allow NMFS to better anticipate problems, identify alternatives for achieving objectives, reduce possibility of conflict and minimize adverse effects on living marine resources and their habitats in the case of essential public interest projects where practical alternatives are unavailable. NMFS will recommend measures to mitigate habitat losses. Also, when appropriate, NMFS will recommend habitat enhancement measures including rehabilitation.

9. As habitat considerations are integrated across all program lines, each major program office of NMFS will review its authorizing legislation and implementing regulations in conjunction with the Office of General Counsel to determine if these adequately provide for consideration of habitat. Legislative or regulatory changes will be recommended as needed.

10. Recognizing NOAA's broad responsibilities for ocean management, NMFS will continue to cooperate with other NOAA program elements and will emphasize those activities affecting living marine resources for which NMFS has primary responsibility. NMFS will also seek assistance from other NOAA elements with expertise in areas relating to living marine resources and their habitats.

11. During the implementation of the Federal regulatory reform processes, NMFS, particularly its Central Office, will actively review and participate in the development of evolving Federal and State laws, regulations, policies, and action
(e.g., Section 404 of the Clean Water Act) that affect habitats of species for which NMFS has primary management responsibility or which are the subject of a NMFS program to ensure that habitat conservation is appropriately considered.

12. To generate greater interest in perpetuating healthy living marine resource habitats, NMFS will emphasize greater communication of its habitat conservation activities to its constituency. This includes commercial and marine recreational fishing interests, academia, environmental groups, coastal residents, marine-oriented industries, the general public, and the Congress.

Dated November 21, 1983. Published in the Federal Register on November 25, 1983 (48 FR 53142).

Regulatory Streamlining - Operational Guidelines