POLICY FOR NATIONAL MARINE FISHERIES SERVICE
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
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.
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
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 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.
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
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
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).