National Marine Fisheries Service ESA/MSA Restoration Project Consultations Ken Phippen Jeff Young Oregon State Habitat Office Oregon Coast Branch Roseburg, Oregon
NMFS Consultation Authorities Endangered Species Act (ESA) ESA-listed species Critical Habitat Magnuson-Stevens Fishery Conservation and Management Act (MSA) essential fish habitat (EFH)
Why consult with NMFS on habitat restoration actions? Restoration actions directly or indirectly affect ESA listed species. At a minimum, you will have beneficial effects. You may hear the term take when discussing actions with an action agency or NMFS. Take = harm, harass, injure, or kill ESA-listed species Without a consultation authorizing take, the Federal or non-federal action is in violation of Sec 9-ESA Sec 9 not to be confused with Sec 7 and the need for a Federal nexus (funding, permit, decision), Sec 9 applies to any U.S. citizen.
Take in ESA Terms Section 9 of the ESA prohibits take without an exemption. Consultation with NMFS provides take coverage and authorizes take for Federal and non-federal actions that result in take. Consultation provides a benefit by allowing the adverse effect and allowing the action to go forward.
Types of Take Coverage Section 7: Federal action agencies Section 10: Habitat Conservation Plan (HCP)- non-federal action Section 4(d) Limits: Non-Federal action programs
Determining if Sec. 7 Consultation Needed Proposed Action Federal nexus Federal Action Agency Effects Determination No Effect May Affect, Not Likely to Adversely Affect May Affect, Likely to Adversely Affect No Consultation Letter of Concurrence 30 days Biological Opinion 135 days
Federal nexus For a non-federal project proponent, NMFS will assist determining the Federal nexus before entering consultation. To determine Federal nexus we must ask: what Federal agency is permitting, funding, or making a decision (NEPA). Sometimes multiple Federal agencies involved funding partner and permitting agency.
Types of consultations There are two ways NMFS consults with Federal action agencies to provide ESA and MSA coverage: Programmatic a consultation between NMFS and a Federal action agency for categories of actions implemented on a project by project basis. Individual Consultation between NMFS and a Federal action agency that does not fall in a programmatic category or meet design criteria in programmatic biological opinion.
Programmatics
What is a programmatic consultation? A consultation between NMFS and a Federal action agency on categories of common actions that may affect ESA-listed species, critical habitat, or EFH. Programmatic consultations and categories of actions they cover have already been through NMFS reviews and approvals Significantly streamlined ESA and MSA regulatory process Significantly reduced procedural requirements and timelines
Why use a programmatic consultation for a restoration action? Project cost benefits Timelines for approvals and permit obtainment Last year the average time for restoration programmatic consultations was 14 days as compared to 160 days for individual consultations Greater certainty of expected conservation benefits of actions Minimize adverse effects from restoration actions to ESA-listed species, critical habitats, and EFH as much as possible.
How do I use a restoration programmatic consultation? Determine your Federal partners and include them in project design/planning AS SOON AS POSSIBLE to determine if your project fits or can be modified to fit under a restoration programmatic consultation Which restoration programmatic your project falls under is dictated by a myriad of elements including: Land ownership, permits required, source of funding, type of restoration action, location of action, etc.
What restoration programmatic consultations are available? Name Action Agency Action Area Restoration Categories Aquatic Restoration Biological Opinion (ARBO) CY2007 to CY2012 (Revision in process) USFS BLM BIA Streams, riparian areas, on USFS, BLM, and Coquille lands, or private lands (Wyden lands) where ESA species are present Riparian management, Improve stream complexity, Road treatments, Legacy structure removal, Aquatic restoration surveys Habitat Improvement Program CY2007 to CY2012 (Revision in process) BPA 59 Sub-basins in the Lower Columbia /Willamette and Interior Columbia Basin Recovery Domains Habitat protection actions, In-stream habitat actions, Projects to mitigate ag impacts, Road Actions, Native plant actions NOAA Restoration Ctr. Restoration Programmatic (PNW) (NOAARC) CY2009 CY2014 NOAA Fisheries Restoration Center Statewide in Oregon, Washington, and Idaho Fish passage; Invasive plant control; Improve stream complexity; Piling removal; berm, dike and levee setbacks; Water control structure removal; road erosion control
What restoration programmatic consultations are available? Name Action Agency Action Area Restoration Categories Partners for Fish and Wildlife Coastal and Recovery Programmatic (LAA) CY2009 CY 2014 USFWS Restoration program USFWS Oregon, excluding Klamath basin, and Washington (Pacific, Wahkiakum, Cowlitz, Skamania, Klickitat, and Benton Counties only) Riparian restoration, Stormwater mgmt, in-stream habitat restoration, upland habitat restoration, coastal and estuary restoration, road and trail improvements Revised Standard Local Operating Procedures for Endangered Species to Administer Restoration Activities Carried Out by the Department of the Army in the State of Oregon and on the North Shore of the Columbia River CY2008 CY2013 SLOPES IV Restoration USACE Oregon, SW Washington along the Columbia River. Includes all upland, riparian, and aquatic areas affected by site preparation, construction and site restoration design criteria at each site. Boulder placement; fish passage restoration; spawning gravel restoration; large wood restoration; offand side-channel habitat restoration; piling removal; set-back existing berms, dikes, and levees; streambank restoration; water control structure removal.
SLOPES IV Restoration Nine restoration category types Boulder placement Fish passage restoration Spawning gravel restoration Large wood restoration Off- and side-channel restoration Piling removal Set-back existing berm, dike, levee Streambank restoration Water control structure removal
SLOPES IV Restoration Type of Action: Actions Requiring No Approval from NMFS: Boulder Placement Spawning Gravel Restoration Large Wood Restoration Piling Removal Streambank Restoration Actions Requiring Approval from NMFS Fish Passage Restoration Off- and Side-Channel Habitat Restoration Set-back Berms, Dikes and Levees Water Control Structure Removal
SLOPES IV Restoration: Design Criteria General construction criteria apply to each action that involves a construction component when relevant to the proposed action Types of actions each type of restoration action has its own design criteria described in the SLOPES IV restoration programmatic biological opinion.
SLOPES IV Restoration: Design Criteria Criteria for actions that do not require approval by NMFS are specifically described in SLOPES IV Restoration programmatic biological opinion. For actions that require approval, close collaboration must occur between NMFS, the Corps, and other project partners to ensure project meets criteria for that action
SLOPES IV Restoration: Action Completion Corps requires applicants to submit an action completion report following completion of the restoration action SLOPES IV Restoration programmatic opinion describes specific requirements for this report
SLOPES IV Restoration: Show Stoppers What is Restoration? Different definitions among project partners often hold up project reviews Programmatic consultations returning degraded aquatic habitat to its pre-disturbance condition to reestablish the general structure, function, and dynamic but self sustaining behavior of an aquatic system.
SLOPES IV Restoration: Show Stoppers Not involving NMFS early enough in the process Some projects require additional review (fish passage, water control structure removal), which cannot be completed in the 30-day timeline. Concept is developed, but not sufficiently designed
SLOPES IV Restoration: Show Stoppers Projects that cannot answer the RiverRAT questions Large, complicated projects that exceed the scale of the programmatic consultation
Questions?
I N D I V I D U A L C O N S U L T S
Individual Consultations Section 7 of the ESA all Federal agencies must consider their actions and the effect that action may have on ESA listed species. Restoration actions that do not fit a category in an existing programmatic must go individually. Restoration actions that are large and complex or risky in terms of predictability, must go individual. Examples: large dam removal, large channel relocations, and baffled culverts.
5/10 7/10 9/10 9/11
Determining if Consultation Needed Proposed Action Federal nexus Federal Action Agency Effects Determination No Effect May Affect, Not Likely to Adversely Affect May Affect, Likely to Adversely Affect No Consultation Letter of Concurrence 30 days Biological Opinion 135 days
No Effect Action Agency makes this determination. No Effect means no effect does not matter whether short-term, long-term, or even beneficial. If a restoration project is a no effect it could not be a restoration project for ESAlisted species. Restoration for an ESA-listed species should, at the least, have a beneficial effect.
Informal Consultation Any action that has an effect without an adverse effect requires informal consultation. No adverse effect can occur, short-term or long-term. Includes beneficial effects.
Informal Consultation Any may affect action, including actions that are wholly beneficial, require consultation. All restoration projects, technically then, require consultation of some sort. No harm, injury, harassment to ESA listed species can occur. Strive to complete in 30-days from the time we have all of the information needed.
Formal Consultation Occurs when there is an adverse effect on ESAlisted species will hear a reference to take. Adverse effect may be direct such as handling fish during a fish salvage operation. Adverse effect may be indirect an action that will happen later in time or typically some effect on habitat. Restoration projects typically related to shortterm construction actions resulting in suspended sediment, fish salvage, contaminant risk, etc.
Formal Consultation Take caused by the action, both direct and indirect. Last resort for restoration projects we just can t fit into a programmatic. Significant time commitment for all involved.
Incidental Take Statement One product of a biological opinion is the incidental take statement (ITS). ITS authorizes take Provides the exemption to section 9 Also identifies thresholds for the take = amount and extent of take Reinitiation thresholds
Terms and Conditions Terms and Conditions (T&Cs) are nondiscretionary actions necessary to minimize take. Very important to pay attention to T&Cs. It s a violation of ESA if T&Cs are not followed, the take coverage is no longer valid.
Informal vs. Formal Snapshot Opinion must analyze and determine jeopardy and adverse modification of critical habitat. Also includes non-discretionary terms & conditions to minimize take harming, killing, injuring, harassing No take for an informal No term and conditions, but no take coverage for informal 30 days vs. 135 days
Questions?
Biological Assessment BAs are at the discretion of the action agency for many smaller projects, but there are potential downsides. Submitted information is usually more disorganized and the story isn t well told. Usually more back and forth discussions between the applicant, action agency, and NMFS due to inadequate information. Bottomline: without BA, likely to be a more difficult process and take longer.
Biological Assessment Components Proposed Action Baseline: Species and Habitat Information Effects of the Action Determination References Attachments
Biological Assessment Components Proposed Action -Need project s story. What Where When How
Biological Assessment Components Proposed Action Describe all the activities needed to implement. Construction work Work isolation Project dependent details, e.g. channel relocation specifics (sinuosity, gradient, substrate); culvert or bridge specifics; fish passage parameters Conservation measures proposed: in-water work timing; erosion and pollution control; work isolation and fish salvage; revegetation plan; etc.
Biological Assessment Components Proposed Action Baseline: Species and Habitat Information Effects of the Action Determination References Attachments
Biological Assessment Components Baseline Species Present Can start with a species list letter request to NMFS. Coordinate with ODFW. Watershed analysis. Key life history information You need to know when listed species are in the project area. Be aware of the in-water work window.
Biological Assessment Components Baseline Conditions Describe the immediate area of the project in terms of Water quality (is it water quality limited-deq listed) Fish habitat pool/riffle, large wood, any fish habitat surveys, etc. Fish presence ESA listed, EFH, streamnet data, fish survey results, etc. Critical habitat designated for an ESA listed species.
Biological Assessment Components Proposed Action Baseline: Species and Habitat Information Effects of the Action Determination References Attachments
Biological Assessment Components Effects Analysis Direct and Indirect Effects Organize by project activities E.g. channel construction, channel isolation, fish salvage, revegetation, fish passage (culvert specifics: size, channel size, gradient) Typically project activities affect: water quality, direct physical impact on fish, habitat changes, fish passage, spawning habitat, forage
Biological Assessment Components Proposed Action Baseline: Species and Habitat Information Effects of the Action Determination References Attachments
Biological Assessment Components ESA Determination No Effect May Affect, Not Likely to Adversely Affect May Affect, Likely to Adversely Affect
Biological Assessment Components Proposed Action Baseline: Species and Habitat Information Effects of the Action Determination References Attachments
Regulations provide six informational requirements that must be met to initiate a formal consultation. 1. DX of the action 2. DX of the specific area affected 3. DX of the listed species and CH affected 4. DX of the manner of effects on listed species and CH, including cumulative effects 5. Relevant reports including the BA 6. Other available relevant information Typically NMFS receives most of this information in a BA, but just as often the BA generates questions about projects that must be answered before NMFS can initiate.
O L D G O L D R A Y D A M Questions? S P R I N G 2 0 1 1