Magnuson-Stevens Fishery Conservation and Management Act Provisions; Essential Fish Habitat General Concurrence

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.

ACTION:

Notice of availability; request for comments.

SUMMARY:

NMFS requests public comments on a proposed essential fish habitat (EFH) General Concurrence with the U.S. Army Corps of Engineers, New England District (COE). The proposed General Concurrence was prepared by NMFS to provide for expedited review of certain COE regulatory actions that may no more than minimally adversely affect EFH, and for which no further consultation is generally required.

DATES:

Comments must be received at the appropriate address or fax number (See ADDRESSES) no later than 5:00 p.m. eastern standard time on March 3, 2000.

ADDRESSES:

Comments should be submitted to Lou Chiarella, NMFS Northeast Region EFH Coordinator, One Blackburn Drive, Gloucester, MA 01930, telephone 978-281-9277, e-mail lou.chiarella@noaa.gov. Comments may be submitted via facsimile (fax) to 978-281-9301. Comments will not be accepted if submitted via e-mail or internet. Copies of the proposed General Concurrence may be obtained from the same address. The proposed General Concurrence is also accessible via the internet at http://www.nero.nmfs.gov/ro/doc/hcd/htm.

FOR FURTHER INFORMATION CONTACT:

Lou Chiarella, NMFS Northeast Region EFH Coordinator, 978-281-9277, e-mail lou.chiarella@noaa.gov.

SUPPLEMENTARY INFORMATION:

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1855(b)(2)) requires Federal agencies to consult with the Secretary of Commerce regarding any action or proposed action authorized, funded, or undertaken by the agency that may adversely affect EFH. EFH has been identified by regional fishery management councils pursuant to section 303(a)(7) of the Magnuson-Stevens Act (16 U.S.C. 1853(a)(7)). EFH is defined as “those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity.” Consultations are governed by the EFH regulations at 50 CFR 600.920. The regulations identify five options for carrying out EFH consultations: use of existing environmental review procedures, General Concurrence, programmatic consultation, abbreviated consultation, and expanded consultation.

General Concurrences are developed by NMFS in coordination with a Federal agency to identify specific types of Federal actions that may adversely affect EFH, but for which no further consultation is generally required because NMFS has determined that the actions will likely result in no more than minimal adverse effects to EFH individually and cumulatively.

For actions to qualify for a General Concurrence, the EFH regulations at 50 CFR 600.920(f)(2) require 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; and (3) the actions must not cause greater than minimal cumulative adverse effects on EFH. NMFS prepared the proposed General Concurrence with the COE for activities governed by state programmatic general permits (PGPs) in New England.

State PGPs are COE permits developed pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1344), Section 10 of the Rivers and Harbors Act (33 U.S.C. 403) and/or Section 103 of the Marine Protection, Research and Sanctuaries Act (33 U.S.C. 1413) for activities that result in minimal environmental impacts. PGPs are issued by the COE for a term of 5 years. PGPs for the New England states include two categories of activities. Category I activities are those with minimal impacts that do not require further authorization by the COE. Since no COE authorization is needed after issuance of the PGP, no Federal action occurs that would trigger the requirement for an EFH consultation for individual Category I activities. Examples of Category I activities covered by these PGPs include certain temporary buoys, Coast Guard approved aids to navigation, and single boat moorings not associated with any boating facility. Category II activities require COE review and written authorization, and therefore require EFH consultation if they may adversely affect EFH. The proposed General Concurrence would fulfill the EFH consultation requirement for these activities. Examples of Category II activities include minor maintenance dredging and installation of certain recreational docks and piers. The COE solicits comments on the appropriate categorization of activities covered by PGPs prior to reissuing each PGP, and at that time would be required to conduct a separate EFH consultation with NMFS on the anticipated effects of issuing each PGP.

The actions that would be covered by the proposed General Concurrence include all activities listed as Category II within PGPs issued by the COE for Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut. Pursuant to 50 CFR 600.920(f)(4), NMFS would request notification in advance of COE authorization of Category II activities so that NMFS can make a case-by-case determination on the applicability of this General Concurrence. Those actions that NMFS determines would result in more than minimal adverse effects to EFH would require individual EFH consultation and would not be covered by this General Concurrence. Although NMFS would continue to review all Category II actions, as it does presently, the General Concurrence would result in workload savings for NMFS and the COE for actions with no more than minimal adverse effects to EFH individually and cumulatively. For such actions, the General Concurrence would obviate the need for NMFS to provide EFH Conservation Recommendations and for the COE to provide written responses to those recommendations.

NMFS has coordinated with the New England, Mid-Atlantic, and South Atlantic Fishery Management Councils regarding the development of the proposed General Concurrence. NMFS discussed the proposed General Concurrence with the New England and Mid-Atlantic Councils during public meetings, which afforded an opportunity for public review as required by 50 CFR 600.920(f)(5). However, since the published agendas for these meetings did not include a clear description of the scope and purpose of the proposed General Concurrence, NMFS is publishing this notice to allow an additional opportunity for public review.

Authority: 16 U.S.C. 1801 et seq.