[Federal Register Volume 77, Number 47 (Friday, March 9, 2012)]
[Pages 14349-14350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5811]



National Oceanic and Atmospheric Administration

RIN 0648-XB068

Availability of Report: California Eelgrass Mitigation Policy

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

ACTION: Notice of availability; request for comments.


SUMMARY: NMFS is providing this notice in order to allow other agencies 
and the public an opportunity to review and provide comments on the 
proposed adoption of the California Eelgrass Mitigation Policy (CEMP) 
by NMFS Southwest Region (SWR) Habitat Conservation Division (HCD). The 
intent of the CEMP is to help ensure consistent and effective 
mitigation of unavoidable impacts to eelgrass habitat throughout the 
SWR. The CEMP is a unified policy document for SWR-HCD, based on the 
highly successful implementation of the Southern California Eelgrass 
Mitigation Policy, which has improved mitigation effectiveness since 
its initial adoption in 1991. This policy is needed to ensure 
effective, statewide eelgrass mitigation and will help ensure that 
unavoidable impacts to eelgrass habitat are fully and appropriately 
mitigated. It is anticipated that the adoption and implementation of 
this policy will provide for enhanced success of eelgrass mitigation in 
California. Given the success of the Southern California Eelgrass 
Mitigation Policy, the California Eelgrass Mitigation Policy reflects 
an expansion of the application of this policy with minor modifications 
to ensure a high standard of statewide eelgrass management and 
protection. The CEMP will supersede the Southern California Eelgrass 
Mitigation Policy for all areas of California upon its adoption.

DATES: Public comments must be received on or before 5 p.m., Pacific 
standard time May 8, 2012. All comments received before the due date 
will be considered before finalizing the CEMP.

ADDRESSES: Comments on the CEMP may be submitted by mail to the 
National Marine Fisheries Service, 777 Sonoma Avenue, Suite 325, Santa 
Rosa, CA 95409, Attn: California Eelgrass Mitigation Policy Comments. 
Comments may also be sent via facsimile to (707) 578-3435. Comments may 
also be submitted electronically via email to SWR.CEMP@noaa.gov. All 
comments received will become part of the public record and will be 
available for review upon request.
    The reports are available at http://swr.nmfs.noaa.gov/hcd/or by 
calling the contact person listed below or by sending a request to 
Korie.Schaeffer@noaa.gov. Please include appropriate contact 
information when requesting the documents.

FOR FURTHER INFORMATION CONTACT: Korie Schaeffer, at 707-575-6087.

SUPPLEMENTARY INFORMATION: Eelgrass species are seagrasses that occur 
in the temperate unconsolidated substrate of shallow coastal 
environments, enclosed bays, and estuaries. Seagrass habitat has been 
lost from temperate estuaries worldwide (Duarte 2002, Lotze et al. 
2006, Orth et al. 2006). While both natural and human-induced 
mechanisms have contributed to these losses, impacts from human 
population expansion and associated pollution and upland development is 
the primary cause (Short and Wyllie-Echeverria 1996). Throughout 
California, human activities including, but not limited to, urban 
development, recreational boating, and commercial shipping continue to 
degrade, disturb, and/or destroy important eelgrass habitat. For 
example, dredging and filling; shading and alteration of circulation 
patterns; and watershed inputs of sediment, nutrients, and unnaturally 
concentrated or directed freshwater flows can directly and indirectly 
destroy eelgrass habitats. The importance of eelgrass both ecologically 
and economically, coupled with ongoing human pressure and potentially 
increasing degradation and loss from climate change, highlights the 
need to protect, maintain, and where feasible, enhance eelgrass 
    Vegetated shallows that support eelgrass are considered a special 
aquatic site under the 404(b)(1) guidelines of the Clean Water Act (40 
CFR 230.43). Pursuant to the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA), eelgrass is designated as Essential Fish Habitat 
(EFH) for various federally-managed fish species within the Pacific 
Coast Groundfish and Pacific Coast Salmon Fisheries Management Plans 
(FMP) (PFMC 2008). Eelgrass is also considered a habitat area of 
particular concern (HAPC) for various species within the Pacific Coast 
Groundfish FMP. An HAPC is a subset of EFH; these areas are rare, 
particularly susceptible to human-induced degradation, especially 
ecologically important, and/or located in an environmentally stressed 
    The mission of NMFS SWR-HCD is to conserve, protect, and manage 
living marine resources and the habitats that sustain them. Eelgrass is 
a habitat of particular concern relative to accomplishing this mission. 
Pursuant to the EFH provisions of the MSA, the Fish and Wildlife 
Coordination Act (FWCA), and obligations under the National 
Environmental Policy Act (NEPA) as a responsible agency, NMFS Southwest 
Region annually reviews and provides recommendations on numerous 
actions that may affect eelgrass resources throughout California, the 
only state within NMFS SWR that supports eelgrass resources. Section 
305(b)(1)(D) of the MSA requires NMFS to coordinate with, and provide 
information to, other Federal agencies regarding the conservation and 
enhancement of EFH. Section 305(b)(2) requires all Federal agencies to 
consult with the NMFS on all actions or proposed actions authorized, 
funded, or undertaken by the agency that may adversely affect EFH. 
Under section 305(b)(4) of the MSA, NMFS is required to provide EFH 
Conservation Recommendations to Federal and state agencies for actions 
that would adversely affect EFH (50 CFR 600.925). NMFS makes its 
recommendations with the goal of avoiding, minimizing, or otherwise 
compensating for adverse effects to EFH. When impacts to NMFS trust 
resources are unavoidable, NMFS may recommend compensatory mitigation 
to offset those impacts. In order to fulfill its consultative role, 
NMFS may also recommend, inter alia, the development of mitigation 
plans, habitat distribution maps, surveys and survey reports, progress 
milestones, monitoring programs, and reports

[[Page 14350]]

verifying the completion of mitigation activities.
    Eelgrass warrants a strong protection strategy because of the 
important biological, physical, and economic values it provides, as 
well as its importance to managed species under the MSA. NMFS developed 
this policy to establish and support a goal of protecting this resource 
and its functions, including spatial coverage and density of eelgrass 
beds. Further, it is the intent of this policy to ensure that there is 
no net loss of habitat functions associated with delays in establishing 
compensatory mitigation. This is to be accomplished by creating a 
greater amount of eelgrass than is lost, if the mitigation is performed 
contemporaneously or after the impacts occur.
    This policy will serve as the guidance for staff and managers 
within NMFS SWR for developing recommendations concerning eelgrass 
issues through EFH and FWCA consultations and NEPA reviews throughout 
California. It is also contemplated that this policy inform SWR's 
position on eelgrass issues in other roles as a responsible, advisory, 
or funding agency or trustee. In addition, this document provides 
guidance on the procedures developed to assist NMFS SWR in performing 
its consultative role under the statutes described above. Finally, 
pursuant to NMFS obligation to provide information to federal agencies 
under section 305(b)(1)(D) of the MSA, this policy serves that role by 
providing information intended to further the conservation and 
enhancement of EFH. Should this policy be inconsistent with any 
formally-promulgated NMFS regulations, those formally-promulgated 
regulations will supplant any inconsistent provisions of this policy.
    While many of the activities impacting eelgrass are similar across 
California, eelgrass stressors and growth characteristics differ 
between southern California (U.S./Mexico border to Pt. Conception), 
central California (Point Conception to San Francisco Bay entrance), 
San Francisco Bay, and northern California (San Francisco Bay to the 
California/Oregon border). The amount of scientific information 
available to base management decisions on also differs among areas 
within California, with considerably more information and history with 
eelgrass habitat management in southern California than the other 
regions. Gaps in region-specific scientific information do not override 
the need to be protective of all eelgrass while relying on the best 
information currently available from areas within and outside of 
California. Although the primary orientation of this policy is toward 
statewide use, specific elements of this policy may differ between 
southern California, central California, northern California and San 
Francisco Bay.
    This policy is consistent with NMFS support for developing 
comprehensive resource protection strategies that are protective of 
eelgrass resources within the context of broader ecosystem needs and 
management objectives. As such, this policy provides for the modified 
application of policy elements for plans that provide comparable 
eelgrass resource protection.
    For all of California, eelgrass compensatory mitigation should be 
considered only after avoidance and minimization of effects to eelgrass 
have been pursued to the fullest extent possible. Mitigation should be 
recommended for the loss of existing vegetated areas and the loss of 
unvegetated areas that have been demonstrated capable of supporting 
eelgrass based on recent history of eelgrass investigations, unless 
physical manipulation of the environment has permanently altered site 
suitability for eelgrass or a change in the baseline has occurred.
    Under this policy, as is the case with the present Southern 
California Eelgrass Mitigation Policy, the burden for successful 
mitigation rests with the action party. As such, the action party 
should fully consider and evaluate the costs and risks associated with 
eelgrass mitigation and should take appropriate measures to ensure 
success in achieving required performance milestones. While NMFS staff 
can provide technical assistance, action parties are advised that they 
are ultimately responsible for achieving mitigation success under this 
policy, irrespective of advice or technical assistance provided by 
NMFS, other agencies, or technical experts.


    The authorities for publication of this policy notification are the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1855), the Fish and Wildlife Coordination Act (16 U.S.C. 661), and the 
National Environmental Policy Act (42 U.S.C. 4321).

    Dated: March 5, 2012.
Brian T. Pawlak,
Acting Director, Office of Habitat Conservation, National Marine 
Fisheries Service.
[FR Doc. 2012-5811 Filed 3-8-12; 8:45 am]