# **[Inter-agency Memorandum of Agreement Regarding Oil Spill Planning and Response Activities Under the Federal Water Pollution Control Act's]{.underline}** 

# **[National Oil and Hazardous Substances Pollution Contingency Plan and the Endangered Species Act]{.underline}**

### INTRODUCTION

A. Parties. The Parties to this agreement are the U.S. Coast Guard
(USCG), the U.S. Environmental Protection Agency (USEPA), the Department
of the Interior (DOI) Office of Environmental Policy and Compliance, the
U.S. Fish and Wildlife Service (USFWS), and the National Oceanic and
Atmospheric Administration's (NOAA's) - National Marine Fisheries
Service (NMFS) and National Ocean Service (NOS).

B.  The Parties have conducted a review of the National Oil and
    Hazardous Substances Pollution Contingency Plan (NCP) and associated
    oil spill response activities to coordinate their actions under
    Section 1321(d) of the Clean Water Act and Section 7(a)(1) of the
    Endangered Species Act, as amended (16 U.S.C. 1531 [et]{.underline}
    [seq]{.underline}.) (ESA). Section 1321(d) of the Clean Water Act
    establishes the NCP and assigns responsibilities to Federal agencies
    in mitigating damage from oil and hazardous materials spills,
    including the conservation of fish and wildlife. Section 7(a)(1) of
    the ESA requires all Federal agencies, in consultation with and with
    the assistance of the Secretaries of the Interior or Commerce, as
    appropriate, to review their programs and utilize their authorities
    in furtherance of the purposes of the ESA by carrying out programs
    for the conservation of listed species. As a result of this review,
    recommended procedures have been developed that will achieve better
    conservation of listed species and critical habitat during
    implementation of oil spill response activities.

C.  This agreement provides a general framework for cooperation and
    participation among the Parties in the exercise of their oil spill
    planning and response responsibilities. Following the recommended
    procedures presented in this agreement will better provide for the
    conservation of listed species, improve the oil spill planning and
    response procedures delineated in the NCP, and ultimately streamline
    the process required by Section 7(a)(2) of the ESA.

### PURPOSE

A. This agreement is intended to be used at the area committee level
primarily to identify and incorporate plans and procedures to protect
listed species and designated critical habitat during spill planning and
response activities. Proactive regional planning may also take into
consideration concerns for proposed and candidate species, as well as
listed species' habitat not yet designated as critical.[^1]

B.  This agreement coordinates the consultation requirements specified
    in the ESA regulations, 50 CFR 402, with the pollution response
    responsibilities outlined in the NCP, 40 CFR 300. It addresses three
    areas of oil spill response activities: pre-spill planning
    activities, spill response event activities, and post-spill
    activities. The agreement identifies the roles and responsibilities
    of each agency under each activity. By working proactively before a
    spill to identify potential effects of oil spill response activities
    on listed species and critical habitat, and jointly developing
    response plans and countermeasures (response strategies) to minimize
    or avoid adverse effects, impacts to listed species and critical
    habitat should be reduced or avoided completely. Should a spill
    occur, response plans and countermeasures will be used to implement
    response actions to minimize damage from oil discharges in a manner
    that reduces or eliminates impacts to listed species and critical
    habitat. In the event that oil spill response actions may result in
    effects on listed species or critical habitat, the agreement
    provides guidance on how to conduct emergency consultation under the
    ESA. It also describes the steps for completing formal consultation,
    if necessary, after the case is closed, if listed species or
    critical habitat have been adversely affected.

C.  The goal of this agreement is to engage in informal consultation
    wherever possible during planning and response. With adequate
    planning and ongoing, active involvement by all participants,
    impacts to listed species and critical habitat and the resulting
    need to conduct subsequent ESA Section 7(a)(2) consultations will be
    minimized or obviated.

### LEGAL AUTHORITIES

A.  The Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §
    [1321]{.underline}., requires that when a spill occurs, the
    President take such action as necessary to ensure effective and
    immediate removal of a discharge, and mitigation or prevention of a
    substantial risk of a discharge of oil into the waters of the United
    States. The National Contingency Plan (NCP), 40 CFR Part 300,
    prepared in accordance with the FWPCA, assigns duties to Federal
    agencies to protect the public health and welfare, including fish,
    wildlife, natural resources and the public. The NCP designates the
    Federal On Scene Coordinator (FOSC) as the person responsible for
    coordinating an oil spill response. (The abbreviation OSC is used in
    the NCP, while the abbreviation for Federal On Scene Coordinator is
    FOSC in this agreement.) Nothing in this agreement limits the
    authority of the Federal On Scene Coordinator as defined in the NCP.

B.  The Endangered Species Act of 1973 (ESA), as amended, 16 U.S.C.
    §1531 [et seq]{.underline}., provides a means to protect threatened
    and endangered species and the ecosystems upon which they depend.
    The ESA requires that Federal agencies insure that the actions they
    authorize, fund, or carry out do not jeopardize listed species or
    adversely modify their designated critical habitat. Regulations for
    conducting Section 7 consultation are set forth in 50 CFR Part 402.

### DEFINITIONS

The following definitions apply to this agreement and are taken from the
definitions contained in either the NCP or the March 1998 USFWS & NMFS
Endangered Species Consultation Handbook. For definitions of terms not
listed below, refer to the USFWS & NMFS Endangered Species Consultation
Handbook and the NCP as appropriate.

*Area Committee* - the entity appointed by the President consisting of
members from qualified personnel of Federal, state, and local agencies
with responsibilities that include preparing an area contingency plan
for an area designated by the President. The chairs of the Area
Committee are the USCG for coastal and Great Lakes plans, and the USEPA
for inland plans. In some instances the Regional Response Team (RRT) may
act as the Area Committee. In this MOA, the term Area Committee also
includes the RRT acting as the Area Committee.

*Area Contingency Plan (ACP)* - the plan prepared by an Area Committee
(or the RRT acting as the Area Committee) that is developed to be
implemented in conjunction with the NCP and Regional Contingency Plan
(RCP), in part to address removal of a worst case discharge and to
mitigate or prevent a substantial threat of such a discharge from a
vessel, offshore facility, or onshore facility operating in or near an
area designated by the President. A detailed annex containing a Fish and
Wildlife and Sensitive Environments Plan prepared in consultation with
the USFWS, NOAA, and other interested natural resource management
agencies should be incorporated into each ACP. In this MOA, the term ACP
also includes sub-area ACP's, sub-area contingency plans, geographic
response plans and geographic response strategies as per 40 CFR 300.210.

*Biological Assessment -* information prepared by or under the direction
of the Federal action agency (USCG or USEPA) regarding: 1) listed and
proposed species and designated critical habitat that may be affected by
proposed actions; and, (2) the evaluation of potential effects of the
proposed actions on such species and habitat.

*Biological Opinion* - document which includes: (1) the opinion of the
USFWS or NMFS as to whether or not a Federal action is likely to
jeopardize the continued existence of listed species, or result in the
destruction or adverse modification of designated critical habitat; (2)
a summary of the information on which the opinion is based; and (3) a
detailed discussion of the effects of the action on listed species or
designated critical habitat. This document will also contain an
incidental take statement, that, if appropriate, exempts the Federal
actions from the ESA Section 9 take prohibitions.

*Candidate species* -- plant and animal taxa considered for possible
addition to the List of Threatened and Endangered Species.

*Case is Closed* -- When removal operations are complete in accordance
with 40 CFR 300.320(b).

*Critical habitat* - areas designated by the USFWS and NMFS pursuant to
Section 4 of the ESA for the purposes of identifying areas essential for
the conservation of a threatened or endangered species and which may
require special management considerations.

*Emergency Consultation --* an expedited consultation process that takes
place during an emergency (natural disaster or other calamity) (50 CFR
402.05). The Services have determined that oil spill response activities
qualify as an emergency action. The consultation may be initiated
informally. The emergency continues to exist until the removal
operations are completed and the case is closed in accordance with 40
CFR 300.320(b). The FOSC will continue to conduct emergency
consultations, if needed, until the emergency is over and the case is
closed. Formal, or informal, consultation is initiated after the
emergency is over, at which time the USFWS and/or NMFS evaluates the
nature of the emergency actions, the justification for the expedited
consultation, and any impacts to listed species and their habitats.

*Federal On Scene Coordinator* (FOSC) - the Federal official
predesignated by USEPA or the USCG to coordinate and direct responses
under the FWPCA as defined in the NCP.

*Formal Consultation*[^2] - a process between USFWS or NMFS and the
Federal action agency (USCG or USEPA) that: (1) determines whether a
proposed Federal action is likely to jeopardize the continued existence
of listed species or destroy or adversely modify designated critical
habitat; (2) begins with a Federal agency's written request and
submission of a complete Section 7 consultation initiation package; and
(3) concludes with the issuance of a biological opinion and incidental
take statement, as appropriate, by either of the Services. If a proposed
Federal action may affect a listed species or designated critical
habitat, formal consultation is required (except when the Services
concur, in writing, that a proposed action "is not likely to adversely
affect" listed species or designated critical habitat. See informal
consultation).

*Incidental Take -* take of listed fish or wildlife species that results
from, but is not the purpose of, carrying out an otherwise lawful
activity conducted by a Federal agency or applicant.

*Informal Consultation* - an optional process that includes all
discussions and correspondence between the USFWS or NMFS and the Federal
agency (USCG or USEPA) or designated non-Federal representative, prior
to formal consultation, to determine whether a proposed Federal action
may affect listed species or critical habitat. This process allows the
Federal agency to utilize the Services' expertise to evaluate the
agency's assessment of potential effects or to suggest possible
modifications to the proposed action, which could avoid potential
adverse effects. If a proposed Federal action may affect a listed
species or designated critical habitat, formal consultation is required
(except when the Services concur, in writing, that a proposed action "is
not likely to adversely affect" listed species or designated critical
habitat).

*Listed Species* -- for the purposes of this MOA, any species of fish,
wildlife or plant, which has been determined to be endangered or
threatened under Section 4 of the ESA.

*National Contingency Plan (NCP)* -- National Oil and Hazardous
Substances Pollution Contingency Plan. The NCP is a national plan that
provides the organizational structure and procedures for preparing for
and responding to discharges of oil and releases of hazardous
substances, pollutants and contaminants. The NCP is set forth in 40 CFR
300.

*National Response Team (NRT)* - a national team, defined under the NCP,
responsible for national planning, policy, and coordination for
hazardous substance and oil spill preparedness and response, consisting
of representatives from agencies named in 40 CFR 300.175(b).

*Regional Response Team (RRT)* - a regional team of agency
representatives that acts in two modes: the standing RRT and incident
specific RRT. The Co-chairs are the USCG and USEPA. The standing team is
comprised of designated representatives from each participating Federal
agency, state governments and local governments (as agreed upon by the
states). Incident-specific teams are formed from the standing team when
activated for a response. The role of the standing RRT includes
establishing regional communications and procedures, planning,
coordination, training, evaluation, preparedness and related matters on
a region-wide basis. It also includes assisting Area Committees in
coordinating these functions in areas within their specific regions. The
role and composition of the incident-specific team is determined by the
operational requirements of the response. During an incident, it is
chaired by the agency providing the FOSC.

*Services* -- Term used to refer to both the USFWS and NMFS.

### PROCEDURES

Oil spill planning and response procedures are set forth in the NCP.
This agreement is intended to facilitate compliance with the ESA without
degrading the quality of the response conducted by the FOSC, to improve
the oil spill planning and response process, and ensure continued
inter-agency cooperation to protect, where possible, listed species and
critical habitat.

## *PRE-SPILL PLANNING*

(1) While drafting Area Contingency Plans themselves may not result in
    effects to listed species, actions implemented under the plans may.
    It is essential that the Area Committee engage USFWS and NMFS during
    the ACP planning process while developing or modifying the ACP and
    response strategies. This informal consultation can be used to
    determine the presence of listed species or critical habitat, and
    the effects of countermeasures, and to ensure that measures to
    reduce or avoid impacts to listed species and critical habitats
    during oil spill response activities are developed. By consulting on
    the anticipated effects prior to implementing response actions,
    decisions can be made rapidly during the spill, harm from response
    actions can be minimized, and implementation of response strategies
    specifically designed to protect listed species and critical habitat
    can be achieved.

(2) The pre-spill planning process is shown as a flow chart in
    Appendix A. The Area Committee Chair will request, in writing, that
    endangered species expertise and a species list be provided by the
    Services.[^3] The request should also describe the area and include
    a general description of the countermeasures being considered and
    the planning process to be used (e.g., a workgroup). In order to
    document the request for consultation and planning involvement, the
    request shall be sent to both NOAA and USFWS. To obtain NMFS
    assistance, a request should be sent to the Department of Commerce
    (DOC) RRT representative, with a copy to the NOAA Scientific Support
    Coordinator (SSC) and the NMFS Regional Field Office. For USFWS
    support, a request should be sent to the local USFWS field
    office(s), with a copy to the USFWS Regional Response Coordinator
    (RRC) at the appropriate USFWS Regional Office(s) and the DOI RRT
    representative. It is the responsibility of the USFWS RRC, acting
    through the Ecological Services Assistant Regional Director, and the
    NOAA SSC to act as a liaison between the respective Service and the
    Area Committee. USFWS and NMFS will orally respond to the request
    within 30 days of receipt and provide a written response within 60
    days. The response should include designation of a listed species
    expert to assist the Area Committee.

(3) If listed species or critical habitat are present in the planning
    area being considered the Area Committee should use a planning
    process that ensures engagement of Service experts.[^4] This process
    shall ensure that the appropriate participants jointly gather and
    analyze the information needed to complete the Planning Template in
    Appendix C. This planning process constitutes informal
    consultation.[^5] The goals of this planning process are to identify
    the potential for oil spill response activities to adversely affect
    listed species and critical habitat and to identify for inclusion in
    the ACP information on sensitive areas, emergency response
    notification contacts, and any other information needed. Methods
    should be developed to minimize identified adverse effects and,
    where necessary, the plan should be modified accordingly. If
    specific sources of potential adverse effects are identified and
    removed, the Services will provide a concurrence letter and Section
    7(a)(2) requirements will be deemed to have been met.[^6]

(4) If, after the process in Appendix C has been followed, it cannot be
    determined that adverse effects will not occur during a response
    action, the USCG or USEPA, as appropriate, will initiate formal
    consultation using the information gathered in Appendix C; this
    information will be used by the Services to complete formal
    consultation.[^7] This will be a programmatic consultation that
    generally addresses oil spill response activities at issue in the
    plan area. At times when specific information is available about
    certain oil spill response methods and listed species and critical
    habitat, it may be possible to pre-approve particular activities
    that may be implemented in the event there is insufficient time to
    initiate emergency consultation before the need to take action. [^8]

(5) All parties recognize that development and modification of the ACP
    is an ongoing process. Changes, including modifications to response
    actions or changes to the species list, should be addressed
    regularly through a dynamic planning process. The Services should
    contact the Area Committee or workgroup if they become aware of
    newly listed species that may be affected by planned response
    activities. The Area Committee should likewise notify the Services
    of changes to planned response activities. The Area Committee or
    workgroup should evaluate any changes and assess the need for
    additional consultation as needed.

## *B. OIL SPILL RESPONSE*

During an oil spill event which may affect listed species and/or
critical habitat, emergency consultations under the ESA are implemented
(50 CFR 402.05) for oil spill response actions.[^9] Emergency
consultation may be conducted informally through the procedures that
follow (See Appendix A). Emergency consultation procedures allow the
FOSC to incorporate listed species concerns into response actions during
an emergency. "Response" is defined in this agreement as the actions
taken by the FOSC in accordance with the NCP. The FOSC conducts response
operations in accordance with the NCP and agreement established in the
ACP.

\(1\) As per the NCP and ACP, the FOSC will notify the RRT
representatives of DOI and DOC through the established notification
process regardless of whether listed species or critical habitat is
present. Upon notification, the DOC and DOI representatives shall
contact the NOAA SSC and RRC, respectively, and other appropriate
Service contacts as provided in internal DOC or DOI plans, guidance, or
other documents. If established in the ACP, the FOSC may also contact
the Service regional or field offices directly (see Section V(A)(3)
above). If listed species and/or critical habitat are present or could
be present, the FOSC shall initiate emergency consultation by contacting
the Services. The NOAA SSC and RRC shall coordinate appropriate listed
species expertise. This may require timely on-scene expertise from the
Services' local field offices. These Service representatives may, as
appropriate, be asked by the FOSC to participate within the FOSC's
Incident Command System and provide information to the FOSC.[^10]

[]{.mark}

(2) The ACP, including any agreed upon references cited in the ACP,
    should form the basis for immediate information on response actions.
    As part of emergency consultation, the Services shall provide the
    FOSC with any timely recommendations to avoid and/or minimize
    impacts to listed species and critical habitat.[^11] The NOAA SSC
    should also be involved in these communications as appropriate. If
    incidental take is anticipated, and if no means of reducing or
    avoiding this take are apparent, the FOSC should also be advised and
    the incidental take documented. If available, the FOSC should
    consider this information in conjunction with the national response
    priorities established in the NCP.[^12] The FOSC makes the final
    determination of appropriate actions.

(3) It is the responsibility of both the FOSC and the Services' listed
    species representatives to maintain a record of written and oral
    communications during the oil spill response. The checklist
    contained in Appendix B is information required to initiate a formal
    consultation in those instances where listed species and/or critical
    habitat have been adversely affected by response actions.[^13] If it
    is anticipated that listed species and/or critical habitat may be
    affected, the FOSC may request that the USFWS and/or NMFS
    representative to the Incident Command System oversee and be
    responsible for the gathering of the required information in
    Appendix B while the response is still ongoing.[^14] The FOSC may
    also choose to designate another individual to be responsible for
    collecting the information.[^15] Although in some instances the
    drafting of information for Appendix B may be completed after field
    removal operations have ceased, it is anticipated that collection of
    the information should be complete before the case is officially
    closed and that no further studies will be necessary.

(4) It is the responsibility of the FOSC to notify the Services'
    representatives in the Incident Command System of changes in
    response operations due to weather, extended operations, or some
    other circumstance. It is the responsibility of the Services to
    notify the FOSC of seasonal variances (e.g., bird migration), or
    other natural occurrences affecting the resource. If there is no
    Service representative in the Incident Command System, the FOSC will
    ensure that the NOAA SSC and/or DOI representative to the RRT
    remains apprised of the situation. The Services will continue to
    offer recommendations, taking into account any changes, to avoid
    jeopardizing the continued existence of listed species or adversely
    modifying critical habitat, and to minimize the take of listed
    species associated with spill response activities.

## *C. POST RESPONSE*

If listed species or critical habitat have been adversely affected by
oil spill response activities, a formal consultation is required, as
appropriate.[^16] Informal emergency consultation shall remain active
until the case is closed. The FOSC will initiate consultation on the
effect of oil spill response activities (not the spill itself) after the
case is closed. Every effort shall be made to ensure that relevant
information generated as part of the consultation process is made
available for use in the Natural Resource Damage Assessment (NRDA)
process. (Note: NRDA activities are separate from this consultation.)

(1) After the FOSC determines that removal operations are complete in
    accordance with 40 CFR 300.320(b), the impacts of the response
    activities on listed species and critical habitat will be jointly
    evaluated by the FOSC and the Services.

(2) If listed species or critical habitat were adversely affected by oil
    spill response activities, the FOSC will follow the procedural
    requirements of 50 CFR 402.05(b) (see Appendix A). The document
    developed by following Appendix B, information required to initiate
    a formal consultation following an emergency, should be included
    with a cover letter to the Services requesting consultation and
    signed by the FOSC. The FOSC will work with the Services and the
    NOAA SSC, as appropriate, to ensure that Appendix B is
    complete.[^17] This document comprises the FOSC's formal request for
    consultation.

(3) The Services normally issue a biological opinion within 135 days of
    receipt of the Section 7 consultation request (50 CFR 402.14). When
    a longer period is necessary, and all agencies agree, the
    consultation period may be extended. The final biological opinion
    will be prepared by the Services and provided to the FOSC, USFWS
    RRC, NOAA SSC, DOI and DOC RRT members, and the Area Committee Chair
    so that recommendations can be reviewed by the Area Committee, and
    where appropriate, implemented to minimize and/or avoid effects to
    listed species and critical habitat from future oil spill response
    actions.[^18] The result of the consultation should be considered by
    the FOSC for inclusion in a lessons learned system so changes can be
    made to the ACP, as necessary, for the benefit of future oil spill
    response actions. If such changes to the ACP modify the anticipated
    effects to listed species or critical habitat, the Services should
    appropriately document the anticipated changes in future effects and
    complete any appropriate administrative steps.

**VI. Points of Contact.** The following are the points of contact for
each Party:

USCG: Chief, Office of Response, Coast Guard Headquarters (G-MOR), (202)
267-0516.

USEPA: Oil Program Center, U.S. Environmental Protection Agency, (703)
603-8823.

NOAA - NMFS: Section 7 Coordinator, Endangered Species Division, Office
of Protected Resources, (301) 713-1401.

USFWS: National Spill Response Coordinator, U.S. Fish and Wildlife
Service, Division of Environmental Quality, (703) 358-2148.

NOAA - NOS: Director, Office of Response and Restoration, (301) 713-2989
x101.

DOI: Office of Environmental Policy and Compliance, (202) 208-6304.

**VII. Funding and Resources**. This agreement is not a fiscal or funds
obligation document. Nothing in this agreement shall be construed as
obligating any of the Parties to the expenditure of funds in excess of
appropriations authorized by law or otherwise commit any of the Parties
to actions for which it lacks statutory authority. It is understood that
the level of resources to be expended under this agreement will be
consistent with the level of resources available to the Parties to
support such efforts. Any activities involving reimbursement or
contribution of funds between the Parties to this agreement will be
handled in accordance with applicable laws, regulations and procedures.
Such activities will be documented in separate agreements with specific
projects between the Parties spelled out. The separate agreements will
reference this general agreement.

**VIII. Effective Date**. The terms of this agreement are effective upon
signature by all Parties.

**IX. Modification**. This agreement may be modified upon the mutual
written consent of the Parties.

**X. Termination**. The terms of this agreement, as modified, with the
consent of all Parties, will remain in effect until terminated. Any
Party upon 60 days written notice to the other Parties may terminate
their involvement in this agreement.

# **[Inter-agency Memorandum of Agreement Regarding Oil Spill Planning and Response Activities Under the Federal Water Pollution Control Act's]{.underline}**

National Oil and Hazardous Substances Pollution Contingency Plan and the
Endangered Species Act

Approved By: Date:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_

Assistant Commandant for Marine Safety

and Environmental Protection

U.S. Coast Guard

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_

Acting Assistant Administrator

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_

Acting Director

U.S. Fish and Wildlife Service

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_

Assistant Administrator for Fisheries

National Marine Fisheries Service

National Oceanic and Atmospheric Administration

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_

Assistant Administrator

National Ocean Service

National Oceanic and Atmospheric Administration

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_

Director

Office of Environmental Policy and Compliance

Department of the Interior

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**APPENDIX B**

##### EMERGENCY CONSULTATION 

##### INFORMATION CHECKLIST IN ANTICIPATION OF FOLLOW-UP FORMAL CONSULTATION (50 CFR 402.05)

As soon as practicable after the emergency is under control, which
occurs when the case is closed, the FOSC initiates consultation (either
formal or informal, as appropriate) with the Services if listed species
and/or critical habitat have been affected. The FOSC should ensure that
the following checklist is completed before the case is closed. After
the case is closed, this information along with a cover letter
requesting consultation will be sent to the Services.

1.  Provide a description of the emergency (the oil spill response).

2.  Provide an evaluation of the emergency response actions and their
    impacts on listed species and their habitats, including
    documentation of how the Services' recommendations were implemented,
    and the results of implementation in minimizing take.

3.  Provide a comparison of the emergency response actions as described
    in #2 above with the pre-planned countermeasures and information in
    the ACP.

APPENDIX C

**[PLANNING TEMPLATE]{.underline}**

One of the goals of the Area Contingency Plan (ACP) planning process is
to develop strategies or actions that reduce the potential for planned
oil spill response activities to adversely affect listed species and
designated critical habitat. The planning process may also develop
strategies that purposefully protect these resources. The following
template is recommended for use by a working group of both Service and
Area Committee representatives to develop a document that 1) is used to
complete consultation pursuant to Section 7 (a)(2) of the Endangered
Species Act of 1973, as amended, and 2) produces information to be
included in the appropriate sections of the ACP. To streamline the
consultation process, the various sections of this document could be
drafted during the planning process and used to develop or modify the
ACP.[^19] This development process will assist all parties in gaining a
thorough understanding of the actions under review and provide
opportunities for any Section 7 consultation related issues to be raised
and addressed in the planning process, rather than during the oil spill
response action.

This template is intended to guide the thought process of creating
consultation documents and incorporates content requirements set forth
in 50 CFR 402.12 as well as information pertinent to the National
Contingency Plan requirements under the Fish and Wildlife Annex; not
every item will be applicable to every situation.[^20]

**[Introduction]{.underline}**

This section generally should be completed in one, or possibly two
paragraphs.

General overview of the response strategy including: (1) a
[brief]{.underline} description - one to two sentences; (2) background,
history, etc. as appropriate; (3) purpose of the response strategy; (4)
identification of the species and designated critical habitat that may
be affected (for consultations that will address large numbers of
species, it may be desirable to present this list in the form of a table
either attached or presented in another section. Also, if species that
may potentially occur in the area are not included in this document,
explain why).

#### This should be developed jointly by the action agency and the Services.

**[Description of the Proposed Response Strategy]{.underline}**

Provide a description of the response strategy being considered. This is
likely to be a detailed description taken substantially from the ACP. It
should include how the response action will be implemented, including
equipment and methods. Examples include use of dispersants to avoid
shoreline impacts, and deployment of booms to protect sensitive areas.
Include all known aspects of the action, such as time frames, why the
action is appropriate, indirect effects, etc. An example of an indirect
effect may be hauling boom on, or driving vehicles through, a sensitive
dune area to gain access to a spill site.

#### This should be developed by the action agency with the assistance of the Services.

Provide a description of specific area that may be affected by the
response strategy (i.e. Sample Bay, 100-mile section of outer coastline,
etc.). Include some measure of the area potentially impacted (i.e.,
"This plan addresses oil spill response activities that may be conducted
out two miles from the coast throughout the 100 mile coastline area
encompassed by this ACP"). If different activities are being proposed in
different areas, identify this. The team should discuss the
appropriateness of presenting this information in terms of the
activities that will be conducted within each area, or the areas where
each activity will be conducted. For example, "Dispersants may be
applied throughout the 10 mile coastline length of Area A and the 25
mile coastline length of Area B." Maps may be useful.

> *This should be developed mainly by the action agency; however,
> modifications may be made with the assistance of the Services and
> subject to the approval process for chemical countermeasures in the
> NCP as appropriate.*

Identify how to quickly obtain species/habitat information during a
spill (i.e. first refer to ACP and site summary sheet, call State FWS,
check website, etc.).

#### This should be developed jointly by the action agency and the Services.

Identify emergency response points of contact to be notified during a
spill. Establish spill parameters for notification as necessary. These
should be included in emergency notification numbers as well as on any
site summary sheets, in geographic response plans, etc.

#### This should be developed jointly by the action agency and the Services.

**[Description of the Affected Environment]{.underline}**

Describe the listed species and designated critical habitat areas that
may be affected by the action in terms of overall range and population
status. Include the number and location of known subpopulations within
and adjacent to the action area (i.e., identify the areas known to be
used by the species and, if appropriate, identify the specific times
periods of use, such as February - April). Discuss the action area in
relation to the distribution of the entire population (e.g., edge of the
range, center of population abundance, key reproductive area, etc.).
Present views of Service recognized experts on the species, if
appropriate.

> *This should be provided by the Services.*

Ensure that these sensitive areas are referenced in the ACP (i.e. via
ESI maps, specially generated GIS maps, site summary sheets, or other
digitized format, etc.).

> *This should be completed by the action agency.*

Provide biological data on listed species: historical use, presence, and
potential use of habitat areas within the action area. Literature and
other documents containing such information may be incorporated by
reference. Provide species observation information, and recent results
of species surveys, including, if appropriate, a description of methods,
time of year surveys were performed, level of effort, and confidence
intervals. Again, literature and other documents containing such
information may be incorporated by reference. Maps may be useful to
depict this information.

> *The Services should assist in developing this information. In many
> instances the Services will be able to supply this information from
> their records.*

Identify other designated sensitive areas, both adjacent to and within
the proposed action area. These include National Wildlife Refuges,
National Marine Sanctuaries, etc.

#### This should be developed jointly by the action agency and the Services.

**[Analysis of the Effects of the Action]{.underline}**

Describe all effects of the response strategy relative to the listed
species of concern and its habitat, including designated critical
habitat. This should include direct, indirect, beneficial, and
cumulative effects as well as effects from interrelated and
interdependent actions, if any.

> *This should be developed jointly by the action agency and the
> Services.*

Describe any measures that may avoid or lessen adverse effects as well
as any measures that will enhance the species' present condition. If
appropriate, delineate the locations of such measures. A discussion of
environmental "tradeoffs" (including no action) may be appropriate. For
example, "Dispersants may be toxic to the listed aquatic species when
used in concentrations above 70%; however, oil coming ashore and
smothering the listed species in tidal marshes is of greater concern due
to the extremely poor conservation status of this species." Reference
any already completed relevant reports, studies, biological assessments,
etc.

#### This should be developed jointly by the action agency and the Services.

**[Modification to Strategy (as needed)]{.underline}**

If necessary, after joint analysis of the information, the action or
strategy may be modified.

Describe the new strategy or action. For example, "Dispersants will not
be used in concentrations above X% or in areas less than three feet
deep. They may be used in Area A and Area B. A Service representative
from Regional field office B will be contacted during an oil spill
response during the months of February - April in Area B."

#### This should be developed jointly by the action agency and the Services.

##### Documentation

This template is a guide to help you through the planning process,
however, when sections are written out as the process is completed, the
final document serves the same purpose as a biological assessment. It
may be used to complete consultation pursuant to Section 7 of the ESA.

The document should be maintained on file by the Services and may be
referred to during an oil spill response.

The Area Committee will ensure that this document becomes part of the
ACP as appropriate such as:

-   Included as an appendix to the Dispersant or In Situ Burn Operations
    Plan;

-   Included as a reference document in the appropriate section of the
    ACP;

-   Include relevant information in sections of the ACP such as
    Notifications, Site Summary Sheets, Geographic Response Plans, GIS
    maps, etc.

The document should include points of contact from both the action
agency and the Services.

# 

# **APPENDIX D**

# 

# **[SAMPLE POLLUTION REMOVAL FUND AUTHORIZATION (PRFA) LANGUAGE\*]{.underline}**

# 

This Statement of Work (SOW) language is intended as sample language
only. The language can be tailored to ensure that the FOSC is provided
with the resources needed to meet the desired activities or functions
required. Accordingly, more precise or succinct language may be used.

PRFA SOW additional/optional work elements to meet the FOSC's ESA
mandated activities associated with removal actions:

.....

To arrange for, and as appropriate coordinate with, the resources needed
to meet the conference and consultation requirements of the ESA.

Specific activities anticipated under this requirement include:

(a) Providing the expertise needed to make sensitive removal decisions
    which could potentially impact on listed species or critical
    habitats associated with this incident;

(b) Gathering and documenting the information needed to provide input
    into the aforementioned decisions and to document the resulting
    impact of removal actions; and

(c) As required, preparing the consultations required of the FOSC for
    the Service(s).

Funding under this agreement is provided for:

(a) Salaries, travel and per diem;

(b) Appropriate charges for use of equipment or facilities;

(c) Any actual expenses for goods and/or services reasonably obtained in
    order to provide the agreed upon support to the FOSC removal
    activities (including contracts.)

\* Developed by the National Pollution Funds Center

**APPENDIX E**

**[SAMPLE LETTERS FOR REQUESTING CONCURRENCE]{.underline}**

## OR FORMAL CONSULTATION

These sample letters have been developed to assist the Parties to this
agreement in documenting the requirements of the Endangered Species Act.
This is suggested wording only and may be used to complete the
administrative record as needed. The request for concurrence can be used
after the planning process for a particular area or countermeasure when
it has been determined that no adverse effects will occur. The Services
will provide a concurrence letter, as appropriate, for documentation.
Alternatively, the request for formal consultation can be used after
planning results indicate that adverse effects may still occur. If this
is the case, the Services will evaluate the information developed
jointly by the workgroup and issue a biological opinion.

**[Request for Concurrence Letter:]{.underline}**

Mr./Ms. xxx\
U.S. Fish and Wildlife Service/National Marine Fisheries Service

Division of Endangered Species

Dear Mr./Ms. xxx:

# In accordance with the requirements of Section 7 of the Endangered Species Act, I am seeking your concurrence that the \[Coast Guard's/EPA's\] implementation of the \[name of plan\] is not likely to adversely affect the \[identify the listed species and designated critical habitat that may be affected. Note, in cases where many listed species or critical habitat designations may be involved, it may be appropriate to refer to an attached list\]. This \[name of plan\] has been developed with the assistance of \[name of Service staff\] of the U.S. Fish and Wildlife Service/National Marine Fisheries Service and in accordance with the procedures identified at 40 CFR Part 300, the National Contingency Plan. To assist in completing informal consultation, please find attached the Biological Evaluation that has been produced through the planning process described in the [Inter-agency]{.underline} [Memorandum of Agreement Regarding Oil Spill Planning and Response Activities Under the Federal Water Pollution Control Act's National Oil and Hazardous Substances Pollution Contingency Plan and the Endangered Species Act]{.underline} using the Planning Template contained in Appendix C of that Agreement.

Thank you for your efforts in this matter. If you require additional
information, please contact \[provide a contact with a telephone
number\].

Sincerely,

**[Request for formal consultation:]{.underline}**

Mr./Ms. xxx:\
U.S. Fish and Wildlife Service/National Marine Fisheries Service

Division of Endangered Species

Dear Mr./Ms. xxx:

In accordance with the requirements of Section 7 of the Endangered
Species Act, I am requesting the initiation of Formal Consultation on
the effects of the \[Coast Guard's/EPA's\] implementation of the \[name
of plan\]. Through informal consultation with your staff \[or identify
the appropriate Service office(s)\], we have determined that
implementation of spill response activities in accordance with the
subject \[name of plan\] is likely to result in adverse effects to
\[identify the listed species and designated critical habitat that may
be affected. Note, in cases where many listed species or critical
habitat designations may be involved, it may be appropriate to refer to
an attached list\]. This \[name of plan\] has been developed with the
assistance of \[name of Service staff\] of the U.S. Fish and Wildlife
Service/National Marine Fisheries Service and in accordance with the
procedures identified at 40 CFR Part 300, the National Contingency Plan.
While these actions may result in short-term adverse effects, it is our
belief that the species \[and designated critical habitat areas\] will
ultimately benefit from them. To assist in completing Formal
Consultation, please find attached the Biological Evaluation that has
been produced through the planning process described in the
[Inter-agency Memorandum of Agreement Regarding Oil Spill Planning and
Response Activities Under the Federal Water Pollution Control Act's
National Oil and Hazardous Substances Pollution Contingency Plan and the
Endangered Species Act]{.underline} using the Planning Template
contained in Appendix C of that Agreement.

Thank you for your efforts in this matter. If you require additional
information, please contact \[provide a contact with a telephone
number\].

Sincerely,

[^1]: Adverse effects on non-designated critical habitat used by listed
    species has a potential for having an adverse affect on these listed
    species. Therefore, planners should consider these areas if
    information is available.

[^2]: Formal consultation can occur during planning or after the
    conclusion of emergency consultation if listed species or critical
    habitat have been affected.

[^3]: 40 CFR 300.170(a).

[^4]: Process options include using an informal workgroup; formal
    workgroup, Environmental Risk Assessment process, or other process
    based on Area Committee needs.

[^5]: This process does not negate any regional consultations that have
    already occurred, nor alter the strategies/procedures in the ACP
    until the ACP is officially modified in consultation with USFWS or
    NMFS.

[^6]: Letter is required for the administrative record. See Appendix E.

[^7]: Letter is required for the administrative record. See Appendix E.

[^8]: Due to time constraints associated with spill response, this does
    not mean that immediate spill response actions cannot occur to meet
    the requirements of 40 CFR 300.317. However, planning should address
    specific procedures for initiating emergency consultation for
    activities that are pre-approved and for those that have not been
    pre-approved.

[^9]: Based on pre-spill planning or discovered during the response.

[^10]: 40 CFR 300.175(b)(7) & (b)(9); 40 CFR 300.305(e).

[^11]: See Section 8.1 of the USFWS & NMFS Endangered Species
    Consultation Handbook
    ([http://endangered.fws.gov/consultations/s7hndbk/s7hndbk.htm]{.underline}).

[^12]: 40 CFR 300.317 National Response Priorities.

[^13]: See Section 8.2(B) of the USFWS & NMFS Endangered Species
    Consultation Handbook.

[^14]: If requested by the FOSC, the NOAA Scientific Support Coordinator
    (SSC) may coordinate this data collection.

[^15]: See Appendix D for example Pollution Removal Funding
    Authorization (PRFA) Statement of Work language.

[^16]: If only proposed species or proposed critical habitat have been
    adversely affected, a formal consultation is not required; however,
    ESA conference procedures should be followed as appropriate. See the
    USFWS & NMFS Endangered Species Consultation Handbook for conference
    information.

[^17]: The NOAA SSC may also assist.

[^18]: Recommendations may also be provided for addressing effects
    caused by spill response actions. This information should be
    provided to the NRDA process as appropriate.

[^19]: It is not required that this planning template be formally
    written or completed during informal consultation, especially if no
    modifications to the strategy are required. However, it can be very
    useful in documenting the \[team's\] thought process for the
    administrative record, serving as a guide, or providing additional
    documentation as needed.

[^20]: The guide on "Developing Consensus Ecological Risk Assessments"
    provides procedures which may be helpful in exploring and analyzing
    these issues. Copies can be obtained from USCG Headquarters
    (G-MOR-2).