# Presentation: 706040

## TOWARDS A COMMON GOAL

- Coordinating actions under the Clean Water Act (FWPCA) and the Endangered Species Act (ESA)

**Notes:**
In response to the M/V New Carissa oil spill and several other incidents, the CG, EPA, NOAA, the FWS and NMFS became more aware of the need to reconcile the requirements of the Endangered Species Act with the oil spill planning and response responsibilities under the Clean Water Act and the National Contingency Plan (NCP).  My goal today is to generally explain the recently signed Memorandum of Agreement, explain why this is important for our agency, describe some of the highlights of the document, and answer a few of your questions.

## Memorandum of Agreement

- Signed by USCG, EPA, DOI, USFWS, NOAA & NMFS in July 2001
- Provides a framework for cooperation & participation among Services & Agencies
- Integrates ESA consultation with NCP requirements

**Notes:**
The MOA will help fulfill requirements under ESA Section 7(a)(2) as well as those mandated in the NCP.  It creates a holistic approach to the protection and conservation of listed species and the environment, provides a framework for cooperation and participation among the Services & Agencies and integrates ESA consultation requirements with the NCP’s requirements. 

## What are the benefits?

- Proactive vs. reactive approach to ecosystem protection
- Improves response plan
- Improves inter-agency coordination
- Helps meet mandates of both ESA and CWA in a comprehensive manner
- Incorporates lessons learned to avoid repeating mistakes

**Notes:**
These are just some of the benefits of the MOA.  In addition, particularly for the FOSC’s, this MOA lays out a process that can be followed, but is flexible enough to allow for regional differences.  It also provides more legal protection to the FOSC while improving their ability to make sound decisions during a response.  Likewise, it encourages more Service participation in planning and response.

## ESA Requirements

- Unlawful to take threatened and endangered species (Section 9)
- Each federal agency shall insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize endangered species continued existence (Section 7)
- Consultation
- Incidental take approval

**Notes:**
How does the ESA apply to the CG and EPA’s activities under the NCP?
The ESA sets forth numerous requirements, however the main goal is to protect threatened and endangered species and habitat and ensure that their interests are taken into account during any type of federal action.  Response to an oil spill is an action that requires timely and effective coordination, both before and after a spill occurs. Wildlife and habitat,  are of course, two of the main things that the FOSC attempts to protect during a spill.
Coordination with FWS/NMFS on federal actions is specified in the ESA regulations  through a variety of methods and procedures including conferences, informal/formal consultations, and development of biological assessments, biological opinions and incidental take statements.
*Note that consultation is a very specific process that involves documentation, not simply “consulting.”  Documentation is key!

## FOSC Statutory and Regulatory Authorities

- Clean Water Act - FWPCA Sec. 311
- Oil Pollution Act of 1990 - Sec. 4201&4202
- National Contingency Plan - 40 CFR 300

***Planning***

***National Response System***

**Notes:**
The Federal On Scene Coordinator is required to prepare and respond in accordance with these statutes and regulations.  OPA 90 was passed after the Exxon Valdez when it was obvious that the right kind of planning and coordinated response had not taken place.  The National Contingency Plan describes specifically HOW the FOSC must prepare and respond.
As you are aware, it describes a National Response System that specifically includes other agencies (including FWS and NOAA/NMFS) in the planning process and during response in an Incident Command System.  It further describes how Area Committees and RRTs, can work together to develop Area Contingency Plans that have specific response strategies, notifications, logistical, planning and operational information. It provides for DOI and DOC to participate in the ACP planning process, to provide technical expertise to FOSC’s during a response and to facilitate compliance with ESA in both instances. Other agencies, including FWS, NOAA, and many others are invited to participate on Area Committees. 
Therefore, during an emergency, such as an oil spill, members have already worked together and developed strategies, and can cooperate more effectively during a spill to protect all wildlife...including endangered species.

## The Process

- Inter-agency workgroup formed in February 2000
- Conducted an ESA Section 7(a) (1) review of the NCP and associated oil spill response activities.
- Field comments sought on draft MOA
- MOA signed July 2001

**Notes:**
For over a year, a workgroup comprised of USCG, EPA, NOAA, NMFS, FWS and DOI conducted a review of the NCP and associated spill response activities under ESA Section 7(a)(1). We attempted to work through all of the issues and questions that I know you’re going to ask me at the end of this presentation!

## MOA Overview

- Introduction & Purpose
- Legal Authorities & Definitions
- Procedures
- Pre-Spill
- Spill Response
- Post Response
- Appendices
- Flow charts
- Checklist to initiate post-emergency consult
- Planning Template
- Sample PRFA language & consult documentation letters

- MOA

**Notes:**
The MOA is comprised of these general sections.  The procedures comprise the main part of the document; however, appendices were also added that serve as tools for the FOSC and the Services.  

*Please keep in mind that if you have a process that works in your region, I encourage you to keep it, but make certain that you have all the legal documentation, references, POC’s, etc. that you need as a result of that process.

## Planning highlights

- Flexible approach
- Mainly informal using a process selected by the Area Committee
- Information needed for both ACP and ESA documentation
- Encourages Service involvement
- Faster response decision-making

**Notes:**
Planning can be done at the regional level vice Area Committee level depending on the issue.
Process allows FOSC’s to find the “right” Service expert to help them with planning.
You can use any approach that works in your region:  Environmental Risk Assessment, workgroup, etc.; any process that serves as a good mechanism to bring people together to tackle the issue.  
Besides providing very important resource information needed for the ACP, the Services can also help the FOSC by documenting the consultation through opinions, recommendations, and letters.  
The end result is a plan that will help the FOSC make a faster, better decision on how to protect resources, or avoid harming them to the best extent possible during a response. 
Planning is not done all at once.  The hope is that eventually, through the regular review process, that resource information, POC information, Incident Command organization, and other information needed in the ACP will be incorporated.  Better yet, the Services will gain a better understanding of the tradeoffs involved during spill response.

## Pre-spill planning

- FOSC requests
- endangered species
- expertise & species list
- from Services

- SSC/RRC
- may act as
- Service liaison

- Species/habitat
- identified in area?

- Joint
- “Working group”
- formed
- (Service & Area
- Committee/RRT reps)

- No Action Required

- YES

- NO

**Notes:**
These flowcharts are incorporated as Appendix A.  Pre-spill planning is truly the key to ensuring that endangered species can best be protected.  It is CRITICAL that strategies and planning take place before an actual event.  By ensuring that endangered species issues are taken into account during the planning process, it is hoped that the effects on endangered species can be minimized or better yet, that species can be PROTECTED during a spill. However, this will only happen if we can get the right people, the experts from FWS and NMFS, involved through the National Response System and specifically connected with the Area Committees!  Better yet, if the procedures developed are followed, even if the FOSC can’t get a hold of the Service rep during the emergency response, the FOSC is covered.
As you can see from our flow diagram, for planning purposes, we’ve stated that the FOSC will request a species list & E.S. expertise.  This serves as documentation that the USCG/EPA has, in essence, requested to consult on planned response strategies in that area. The SSC, or the Regional Response Coordinator for FWS can act as a liaison, ensuring the right people/information are put in touch with the Area Committee/or RRT in some cases.  If there are E.S. in the area being looked at, then the AC/RRT can form a working group, hold a risk assessment, have one member go to FWS for a meeting, etc. whatever works to bring the A.C reps and the Service reps together.

## Informal Consultation/

- completes Appendix C
- using ACP planning
- process*
- *Develop strategies with
- minimal
- adverse effect

***Informal Consultation/***
***ACP Planning Process***

- Species/habitat
- still potentially
- adversely effected?

- Services provide
- concurrence letter
- Sec. 7(a)(2) req’s fulfilled

- Services utilize info
- developed in Appendix C
- to finalize formal
- consultation
- Sec. 7(a)(2) req’s fulfilled

***Informal Consultation**** *

***Formal Consultation***

**NO**

**YES**

**Notes:**
To aid the planners, we developed Appendix C, which is a “planning template,” a thought process that looks at the action being considered, and what the effects may be on endangered species.  The great thing about this is, not only does it serve as a guide, but it also gathers information required for the ACP (such as POC’s, sensitive areas, etc.), but also develops a biological assessment (needed for documentation of the “consultation”).  We hope that in this forum, planning/informal consultation, strategies can be developed that will minimize adverse effects to E.S. or C.H. 
If however, it still appears that no matter what, the response activities could result in adverse effects, the Services will use the information developed in Appendix C to document that a formal consultation was conducted.  For example, there may be no way to avoid driving trucks through a march (listed as critical habitat) to deploy boom if the spill comes from a particular direction.  This can then be noted in the consultation writeup and the strategy could still be “approved,” and the FOSC would gain a great degree of legal “protection.” (Formal consult could lay out procedures, if procedures are followed, even if you called and couldn’t get a hold of them on a Sat. nite!) The Services may offer suggestions on how to best avoid this (perhaps by accessing via the water).  However, it is known that given the uncertainty surrounding the spill itself (weather, oil type, time of year), that this would simply be used as a guide during emergency consultation during the spill itself.... 
The benefit of an up front consultation (planning) is that the Service biologist will be educated on the spill response action and it’s limitations, and it can allow the FOSC to act quickly! 

## Response highlights

- Spill response is an emergency
- ACP is basis for immediate response ops
- Service reps can be incorporated into Incident Command System as required
- Emergency continues until case is closed
- Helps avoid impacts and post-spill consults

## Spill Response Procedures

**OIL SPILL**

- Notification
- occurs IAW
- NCP & ACP

- Listed species/
- critical habitat
- potentially affected by
- response ops?

**NO**

**YES**

- Endangered
- species
- expertise
- not required

- USFWS/NMFS
- Endangered species
- expertise required

- USFWS/NMFS
- endangered species
- expertise provided
- to FOSC’s Incident
- Command System

***Emergency Consultation***

**Notes:**
In the unfortunate event of a spill, these pre-planned strategies become the basis for a response.  However, during spills the Incident Command System allows agencies to provide technical expertise to the FOSC.  Our workgroup wants to ensure that the right people from FWS/NMFS can become involved in the spill response structure to offer advice and recommendations to the FOSC. The Services would be notified (as per the ACP), and be involved in the Incident Command System.  This, in ESA terms, is emergency consultation! If pre-planning has occurred, the emergency consultation is shortened and streamlined.
In addition, we also felt that it was important that we define, according to the NCP, that the emergency is over when the case is closed. This is when the emergency consultation ends.  This places a responsibility on the FOSC to keep the FWS/NMFS rep informed as response activities change and also that the FWS/NMFS rep keep the FOSC informed as the situation with the endangered species changes (such as migrations, seasonalities, etc.)  

## NO

- provide
- recommendations to
- minimize impact

- Listed species/
- critical habitat
- anticipated affected by
- response ops?

- USFWS/NMFS
- continue to provide
- recommendations to
- avoid impact

- Initiation Package
- checklist completed
- (Appendix B)

- FOSC closes case.
- Emergency consultation
- ends

**NO**

**YES**

**Notes:**
If the unfortunate occurs, and endangered species are effected by the response despite everyone’s best efforts, our workgroup recognized that specific information was still needed to complete requirements under the ESA and document Incidental Take for the FOSC.
The experts best able to assess and gather this information are already part of the incident command, usually in the planning section in the environmental unit.  The SSC will coordinate, usually by gaining assistance from FWS/NMFS, another SSC, etc., the development of Appendix B, which is the information required to initiate formal consultation on the specific spill response activity following an emergency.  Or, if the FOSC desires, they can designate another individual, such as the planning section chief, USFWS/NMFS/State FWS, etc. to complete this information on behalf of the FOSC. This basically serves as an evaluation of the response actions, to document what recommendations were given, and what actions were taken.   IT DOES NOT EVALUATE THE IMPACTS OF THE SPILL ITSELF ON ENDANGERED SPECIES.   NPFC has provided us with sample language needed to recoup costs for completing the consultation requirements.

## Post Response Highlights

- Formal consult only after case is closed, if required
- FOSC decides who completes package
- Provides legal protection to the FOSC
- Biological opinion feedback in lessons learned as necessary

## Post Response Procedures

- Listed species/
- critical habitat
- adversely effected by
- response ops?

- Results entered into
- Lessons Learned.
- Revisions made to
- ACP as necessary.

- Appendix B completed
- (RRC & SSC may
- act as liaison)

- FOSC signs initiation
- package, cover letter
- requests consultation

**Notes:**
After a spill, if endangered species have been effected by the response, the package is forwarded by the FOSC to the Services. 
If species are not adversely effected, perhaps this means that the procedures and the strategies worked!  This should be documented in Lessons Learned and the ACP revised as needed.

## NO

**NO**

**YES**

- Within 30 days,
- Services notify
- FOSC

- Drafter completes
- data with assistance
- from other Service/
- Agency as needed

- Services formulate
- consultation
- document &
- Incidental Take
- Statement

- Documentation
- forwarded to FOSC
- with copy to
- RRC/SSC

- Results entered into
- Lessons Learned.
- Revisions made to ACP
- as necessary.

- Package returned
- to Services

**Notes:**
Upon receipt the package, the Services would formulate a consultation document and Incidental Take Statement.  The FOSC (and the Services) has some legal protection.  Lessons learned should be entered and the ACP modified as necessary.

## What next?

- Workgroup develops training manual & presentation
- Training conducted at conferences, RRT meetings, resident training, etc.
-  Area Committees (or RRTs) contact & work with Service reps
- ACPs amended & improved through normal review process
- Service participation in exercises is encouraged

## Our Goal

- To protect public health and welfare, including fish, wildlife, and other natural resources (NCP)...and conserve threatened and endangered species and their ecosystems (ESA)!

**Notes:**
I note that what we’ve developed here really is the way that spill response planning and response is supposed to occur.  It requires some effort to plan and get involved in a spill response on everyone’s part; however, the benefits include a faster response that could actually proactively conserve endangered species and habitat.
Our hope is that by getting this signed in the highest levels of all these agencies that all of the involved parties will recognize that they have a responsibility to participate in spill planning and response.  By seeking out the right individuals from the Services and asking them to plan/consult/participate offers the FOSC at least some degree of legal protection and does the right thing for these endangered resources.  

## Questions?