# Presentation: 190302

## Note to Instructor:

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## 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Training, 2002

**Notes:**
Welcome to training on 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!
My name is ______ and I will be your facilitator today. This training program has the flexibility to be either a 1hr training or half-day training.  Today we will be conducting a 1 hour course. 
We will be covering the basics of the MOA and working through some steps that you may find useful in implementing it.  We anticipate having plenty of time to work through a scenario or two as well, to show you how the MOA can benefit you and your colleagues.
We hope that you will find both the training and the guidebook to be a user-friendly and useful reference, i.e.,  not just something that will sit on the shelf or serve as a coaster!

## A word from MOA Sponsors

- In this training, you will receive an overview of several Federal documents.  Keep in mind that these are merely *overviews*.
- Those of you who are intimately familiar with these documents are likely to find that you know much more than is presented.
- Those of you who wish to learn more will find the “Where Can I Find More Information?” section useful.  This section is located at the end of each chapter.

**Notes:**
Along with an overview of the MOA, this training provides an overview of several Federal documents.  Keep in mind that these are merely overviews.  For those of you who are intimately familiar with these documents, you are likely to find that you know much more than is presented.  This is precisely why we encourage inter-agency communication and cooperation! No one agency has all the answers!
Those of you who wish to learn more can find references in the “Where Can I Find More Information?”section at the end of each chapter.  You may also find more information through internet links provided on your CD-rom.

## Introduction

- _What is the purpose of this training?_
- Familiarization
- Help establish procedures to facilitate smooth ESA consultation
- Identify roles

**Notes:**
The training will familiarize both oil spill preparedness and response community with 
1) the Memorandum of Agreement (MOA), 
2) requirements of Section 7 of the Endangered Species Act (ESA), 
3) the National Contingency Plan (NCP),
4) guidelines that may help you develop procedures for addressing ESA in oil spill response.
Training will encourage planners and responders to establish procedures to facilitate smooth ESA consultation before, during, and after an oil spill
Will help identify the role of each agency in oil spill response as it pertains to ESA

## MOA and Training

- _Why is the MOA necessary?_
- Framework
- Integration
- _Why is this training necessary?_
- Encourage communication and cooperation
- Familiarization

**Notes:**
Overall the MOA: 
1) provides a framework for cooperation between preparedness and response agencies, and ESA compliance agencies, i.e., Services
2) integrates ESA consultation with NCP requirements

Training: 
        1) encourages consistent, ongoing communication and cooperation among agencies involved in oil spill planning and response as it pertains to ESA
          2) familiarizes members of the preparedness and response community with agency roles in meeting the requirements of an oil spill response effort as they pertain to ESA

** Remind participants that this MOA does not establish any new regulations nor does it affect the authority of the Federal OSC. **

## Chapter 1
Memorandum of Agreement Overview

- Memorandum of Agreement Overview

**Notes:**
The MOA provides a general framework for cooperation and participation among agencies in the exercise of their oil spill planning and response duties.  Recognizing that one of the overarching goals of both the Federal Water Pollution Control Act and the Endangered Species Act (ESA) is to protect fish, wildlife, and natural resources (including endangered species and critical habitat), this MOA attempts to coordinate the requirements of both statutes.  Federal agencies have responsibilities under both statutes.  Following the recommended procedures will provide for the conservation of listed species, improve the oil spill planning and response, and ultimately streamline the process required by Section 7(a)(2) of the ESA.  Some regional differences in process will naturally exist; however, the common underlying factor is that teamwork is essential if we are to meet our end goal - better overall protection of the environment.

## MOA Overview

- _What is the purpose of the MOA?_
- Encourage proactive planning
- Provide guidance
- Encourage ESA informal consultations when possible

## Key Supporting Documents

- Clean Water Act
- (33 USC §1321)
- Federal Water Pollution Control Act’s National Oil and Hazardous Contingency Plan (National Contingency Plan)
- (40 CFR Part 300)
- Endangered Species Act
- (16 USC §1531)

**Notes:**
These three documents provide the background for materials and procedures recommended the MOA.

The Clean Water Act refers to the Clean Water Act as amended by the Oil Pollution Act of 1990, also known as OPA.
The Federal Water Pollution Control Act’s National Oil and Hazardous Contingency Plan may be known better as the National Contingency Plan  or NCP.

## Keep in Mind

- 1)The MOA focuses on the effects of oil spill _RESPONSE ACTIVITIES_ only.
- 2)Be proactive. Establish procedures now that will result in a more effective and/or efficient response and consultation process.
- 3)Focus on cooperation and open communication at every stage in the process.

**Notes:**
The MOA focuses on response activities as opposed to the effects of oil.  The effects of the oil on species falls under a different evaluation process.
Proactive measures can help you increase the efficiency of your response efforts as well as minimize potential hurdles.  
Communication is the key throughout this entire process - not just training, but also through planning, response, and consultation.

## Chapter 2

- National Contingency Plan and National Response System Overview

**Notes:**
The Clean Water Act was enacted to protect and preserve US waters.  The National Contingency Plan was developed to support the Clean Water Act by establishing an organizational structure and procedures for responding to oil spills in US waters.  That organizational structure and set of procedures is known as the National Response System.

## National Contingency Plan (NCP) Overview 

- _What does the NCP do?_
- Implements portions of the Clean Water Act
- Requires agency representatives to:
- Prepare for,
- Respond to, and
- Remove spills (discharges) in or adjacent to US waters
- Establishes organizational structure for spill response
- Establishes procedures for planning and spill response

**Notes:**
Implements portions of the Clean Water Act to ensure effective, immediate removal of oil spills (and other discharges) from US waters.
The NCP establishes an organizational structure for spill response, including notification procedures and designating lead agencies.
Establishes overall procedures for preparedness and spill response.  Districts and Regions establish specific plans for their areas.

## National Response System (NRS) Overview 

- _What is the NRS?_
- Organizational structure
- Coordinates government, public, and private sectors

**Notes:**
The NRS is the organizational structure established by the NCP.  The purpose of the organizational structure is to encourage coordination among all levels of government and between public and private sectors

## Chapter 3

- Endangered Species Act Overview

**Notes:**
In 1973, Congress enacted the Endangered Species Act (ESA) for the purpose of conserving listed species and their habitats.  The ESA requires Federal agencies to work together to accomplish this purpose. Section 7 of the ESA and the implementing regulations outline the procedures through which Federal agencies consult with the Services on the effects of their action(s) on listed species and designated critical habitat. The Memorandum of Agreement focuses on helping Federal oil spill responders meet the consultation requirements of the ESA.  In this section, we briefly outline the basic elements of consultation.  These elements will be useful during discussions with the Services.  Detailed information on pre-spill planning consultations and emergency consultations can be found in Chapters 6 and 7, respectively.

NOTE to Instructor:  If you are working with a group who is already intimately familiar with this subject matter, abbreviate explanations as appropriate.

## ESA Overview

- _What does the Endangered Species Act do?_
- Establishes a conservation program
- _Who administers ESA?_
- Department of Interior’s US Fish and Wildlife Service (FWS)
- NOAA’s National Marine Fisheries Service (NMFS)

**Notes:**
Simply put, the ESA establishes a conservation program. It outlines a program for conserving threatened and endangered plants and animals and the habitats on which they rely.

The agencies who administer the ESA are US Fish and Wildlife Service and the National Marine Fisheries Service.

## Important ESA Terms

- The Services
- Refers collectively to Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)
- Listed Species
- Any species of fish, wildlife, or plant determined as threatened or endangered under ESA Section 4
- Designated Critical Habitat
- Habitat on which a listed species relies
- Conservation
- To use all methods and procedures necessary to bring a species to the point at which measures provided pursuant to the Act are no longer necessary

**Notes:**
The Services often referred to collectively.  Although in most cases only one is involved in a spill response, there are instances in which their jurisdiction overlaps - for example in a case involving anadromous fish.
Listed species include those that are listed as threatened or endangered under ESA Section 4.  In some instances, when the Services evaluate effects, they may also include proposed species.
Habitat on which a species relies means habitat that is used during normal behavior - for example, breeding, nesting, foraging, feeding, etc.  Specifically, critical habitat includes specific areas designated at the time of listing, on which  are found elements essential to the conservation of the species and may require special management considerations.
Conservation includes all methods and procedures necessary to bring a species to the point at which protective measures under the Endangered Species Act are no longer necessary.  

## More Important ESA Terms

- Take
- To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct
- Harm can include significant habitat modification or degradation
- Harass includes activity that significantly disrupts normal behavior patterns (i.e., feeding, nesting, breeding, etc.)

**Notes:**
Note to Instructor: Present this slide as-is. 

For further information on this, you are encouraged to coordinate with a Service representative.

## ESA Consultations

- Informal Consultation
- Formal Consultation
- Emergency Consultation

**Notes:**
 Note to Instructor: Present this slide as-is.
Each of these consultation procedures will be explained in subsequent chapters.

## Consultation Documentation

- Any of the following *may* be produced as a result of the consultation process:
- Biological Assessment
- Letters of Concurrence
- Initiation Package
- Biological Opinion
- Incidental Take Statement
*Where each of these documents will be used is addressed in subsequent chapters.*

**Notes:**
Note that only some of these MAY be produced. Not all are required for every spill.  In certain cases, none of the documents may be appropriate or necessary.

## How ESA & the NCP relate

- NCP
- Requires OSCs to work with Natural Resource trustees
- ESA and MOA encourage support from ESA specialists
- Both response agencies and the Services need to make efforts to include ESA specialists in the response process

**Notes:**
The NCP requires response measures that mitigate oil spills. Response measures may affect listed species or critical habitat.
The NCP requires OSCs to coordinate with natural resource trustees in planning and responding to oil spills . However, the  NCP does not specify working with ESA specialists. 

Response agencies and the Services must work together  to ensure that the Services provide support for ESA issues. Generally the Federal OSC can do this by submitting a letter requesting support during the planning process or with a phone call during a response.

## Chapter 4

- Incident Command System Overview

**Notes:**
The National Response Team endorses the use of a management system called the Incident Command System (ICS) to manage response operations.  ICS, along with a Unified Command (UC), provides an organizational framework for managing a variety of activities.  The MOA focuses on ICS and UC as it pertains to oil spill response.  In this chapter, we will introduce various aspects of the ICS.  Potential members of an ICS/UC should become familiar with the response management system identified in the appropriate Area Contingency Plan.
NOTE to Instructor:  If you are working with a group who is already intimately familiar with this subject matter, abbreviate explanations as appropriate.

## How NRS and ICS relate

- NRS specifies parties that may be involved in spill response
- ICS establishes a framework within which those agencies operate

**Notes:**
 While the NRS includes the different agencies involved in oil spill preparedness and response, the ICS establishes a response management mechanism within which agencies operate.  For example, the NRS includes OSCs.  The ICS places the OSC within the Incident Command/ Unified Command portion of the response management framework.  Likewise, the NRS includes multiple resources that the OSC can call for support during response operations.  For example, USCG special teams, such as the Strike Force, support the OSC throughout all Sections of ICS; NOAA’s SSCs and the EPA’s ERT support the OSC through the Planning and/or Operations Section of ICS.

## Incident Command System (ICS) Overview

- _What is the ICS?_
- A system for managing spill response operations
- Mandated for the USCG and used by many other OSC’s

**Notes:**
ICS is a hierarchy of decision-making through which spill response can operate.  It has five main components: Command, Logistics, Planning, Operations, and Finance each of which will be explained further.

## Chapter 5

- Area Contingency Plans
- Overview

**Notes:**
The NCP requires Area Committees consisting of representatives from Federal, state, and local governments to develop Area Contingency Plans for their area.  ACPs address removal of a worst case discharge, among other things.  They include information such as roles and responsibilities, resources, sensitive areas, and response methods.

NOTE to Instructor:  If you are working with a group who is already intimately familiar with this subject matter, abbreviate explanations as appropriate.

## Area Contingency Plan (ACP)

- _According to the NCP, an ACP must contain_ :
- An area description
- A detailed description of all oil spill response parties’ responsibilities in the NRS
- A list of equipment
- A set of procedures for expedited decisions on dispersant use
- A detailed explanation of how the plan fits into other ACPs, vessel, facility, and other response plans
- A Fish and Wildlife and Sensitive Environments Annex

**Notes:**
Note to Instructor: Present this slide as-is. No further explanation necessary at this point - reference text for more detail.

## Agencies and ACPs

- USCG maintains ACPs for marine spills
- EPA maintains ACPs for inland spills
- Some areas also maintain :
- Sub-area plans,
- Geographic response plans, and
- Regional response plans
*For the purposes of the MOA, *
*all of the above are considered part of the ACP*

**Notes:**
The NCP does not propose specific procedures for developing an ACP. It stipulates that the OSC should coordinate with local, state, and other Federal government agency personnel with a stake in oil spill response to see that the ACP works in conjunction with existing local and state plans for spill response.  The Area Committee often looks to the RRT to provide planning and response policy guidance for the ACP, and to ensure that the ACP works in conjunction with the Regional Contingency Plan.

## ACP Process

- NCP requirements
- Coordination with state and local officials
- Federal OSC usually chairs the Area Committee
- Stakeholder participation

**Notes:**
The NCP requires the Federal OSC to work with state and local officials to produce an ACP.  This helps to ensure that agencies plan to respond to spills in similar manners.
Often the Federal OSC chairs the Area Committee - USCG for coastal/marine and EPA for inland.  However, for the purposes of the MOA, the RRT may act as the “Area Committee” for certain regional issues such as dispersant use.
Each organization with a stake in the outcome of a spill should participate in the ACP process. This includes, for example, Federal OSCs, ESA specialists, Natural Resource specialists, NOAA SSCs, ERT, and even responsible parties.

## ACP’s Fish and Wildlife Annex

- A required part of the ACP
- Services contribute significantly with their expertise
- Fish and wildlife information may be incorporated in two ways:
- Incorporated throughout the document in appropriate sections, or
- As part of a separate Fish and Wildlife and Sensitive Environments Annex

**Notes:**
The fish and wildlife annex provides species and habitat-specific information.  The Services play a significant role in this process by assisting the Federal OSC with the development of this information.
There is no set form in which to present this material.  It is either incorporated throughout the document or included as a separate Annex.

## ACP and ESA

- “Consulting” versus consultation
- ACP definition versus ESA definition
- The Planning Template (Appendix C) in the MOA can help with documentation

**Notes:**
“Consulting” with Service representatives for input on the Annex is important for completing an ACP; HOWEVER, meeting the legal requirements to consult on an action (according to the Endangered Species Act) requires specific documentation.
The Planning Template (Appendix C) in the MOA can serve as a tool for completing this documentation process.

## Chapter 6

- Pre-Spill Planning

**Notes:**

The planning process outlined in this chapter is designed to help meet the requirements to consult on the response measures described in the ACP.  Knowing which response measures are preferred from a species-protection perspective for an oil spill in a given area will reduce efforts to gather that information during the response, thus improving the protection of the environment.

## Building on the ACP

- Build on what is already in the ACP
- Pre-spill planning in the MOA and the documentation recommended in the MOA is an extension of the ACP process

**Notes:**
The MOA does not require a new ACP. It encourages the Area Committee or RRT to examine the existing ACP for changes that may need to be made. If the ACP does not adequately address ESA issues, then changes may be in order.
Pre-spill planning (development of the ACP) will identify the range of response measures available to the OSC, and will identify sensitive resources (habitats and species) that occur in the planning area.
The purpose of ESA consultation (informal or formal) during pre-spill planning is to lessen the burden on everyone involved during and after a spill event.  If pre-spill planning is adequately completed, consultation during a spill can be streamlined. The Federal OSC can respond knowing that the Services support the actions recommended in the ACP.

## Step 1 - Who should be involved?

- USCG and/or EPA
- DOI’s OEPC
- NOAA’s National Ocean Service (NOS)
- EPA’s Environmental Response Team
- FWS and NMFS
- Other Stakeholders

**Notes:**
Note to Instructor:  If you have the time, coordinate a list of contacts for your class.  Provide agency, title, and contact phone numbers - note that personnel will change, but if your group feels it would be helpful to have, it may be worth investigating.
USCG/EPA - the Federal OSC from one of these agencies leads the development and maintenance of the ACP
DOI OEPC - DOI supports preparedness and response activities through their Regional Environmental Officers (REO)
 NOAA SSCs - provide Environmental Sensitivity maps, advice on countermeasures, as well as scientific and natural resource support - generally in coastal areas
ERT - provides the technical support similar to the aforementioned (NOAA SSC) in inland areas
FWS and NMFS - Provide information for the ACP; Assist in evaluating response measures
Other Stakeholders - State and local emergency response representatives; Responsible party representatives are invited to participate in planning; Representatives from other agencies such as Federal land managers or marine sanctuary managers

## Step 2 - Information Gathering

- Listed Species and Critical Habitat information
- National and Area Contingency Plans
- Other Available Information

**Notes:**
Listed species and Critical Habitat information can be gathered with the assistance of the following: NOAA SSC, DOI REO, FWS RRC, FWS and NMFS representatives
A copy of the NCP is available at - www.nrt.org.  Many area contingency plans are no longer available online. However, the Federal OSC, Area Committee or RRT should be able to provide you with a copy.  
Other resources include: Environmental Sensitivity Indices, Geographic Response Plans, sub area plans, wildlife response plans, etc.

## Step 3 - Effects on Listed Species and Critical Habitat

- No effect determination
- May effect determination

**Notes:**
The presence of listed species and/or critical habitat can be determined with the assistance of the Services.  This begins the process for No Effect/May Effect determinations.
 For documentation purposes, the Federal OSC may want to submit a written request to one or both Services for expertise. NECESSARY FOR DOCUMENTATION PURPOSES
If NOT present, the consultation process is complete.  If they ARE present, then the Federal OSC should submit a request to the Service(s) for a representative to assist in the completion of a consultation. 
NECESSARY FOR DOCUMENTATION PURPOSES
The Federal OSC makes one of these decisions based on information available from the Service(s) and/or other sources.
No matter which determination the Federal OSC makes, the Service(s) should be informed.  If the OSC makes a “may effect” determination, then coordination with the Services continues in the form of consultation.

## Step 4 - Choosing Response Measures

- Evaluate response measures
- Which response measure(s) will avoid or minimize impacts on listed species and critical habitat?
- Which response measure(s) are preferred?
**Keep in mind that the Area Committee and Services **
***jointly evaluate***** tradeoffs and sensitive area priorities**

**Notes:**
If listed species or critical habitat are present, the Area Committee and the Services’ ESA representative(s) can use the Planning Template (Appendix C of the MOA) to evaluate the effects of response measures on those species or habitat.
NOTE: The Area Committee does not have to use the Planning Template if it already has another framework in place.  When considering response measures, focus on developing practicable measures.

## Step 4 - continued

- Determinations
- _Not likely to adversely affect_ means that the Federal OSC should request a letter of concurrence from the Services
- _Likely to adversely affect_ means that the Federal OSC needs to submit an initiation package to the Services requesting Formal Consultation
*Completing the planning process and/or the Planning Template should help to avoid potential adverse effects during response actions.*

**Notes:**
This determination is made by the Federal OSC based on information that may be produced by completing the Planning Template (MOA).  Then the OSC presents the finding to the Service(s). If the OSC determines the response action is not likely to adversely affect listed species or critical habitat, the OSC presents this determination to the Services.
If the OSC determines a possible effect, the OSC puts together an initiation package and submits that to the Services. If so, the Federal OSC should consider whether or not the response action can be modified.

## Step 5 - Formal Consultation

- Necessary when adverse effects are likely
- Federal OSC requests formal consultation
- Services respond within 135 days with a Biological Opinion
- No Jeopardy/adverse modification determination
- Jeopardy/adverse modification determination

## Step 6 - Documentation

- ACP
- The Federal OSC or another designated member of the Area Committee should document all correspondence with the Services
- Documents should be incorporated into the ACP or referenced in the ACP
- Services
- The Services should retain copies of all documentation as well

**Notes:**
The Federal OSC should ensure that copies of letters of concurrence or any other documentation produced during this process are incorporated or referenced in the ACP.

## Planning - A Review 

- 1)Incorporate all documents and procedures produced through the Planning Template (or other template) into the ACP.
- 2)Include new data in the ACP.
- 3)Adjust recommended response measures as needed.
- 4)If additional procedures are developed that will improve coordination during an oil spill, include that information in the ACP.

**Notes:**
1) For example, if a letter of concurrence is received from the Service(s), the Federal OSC should include or reference it in the ACP. Or if certain procedures are developed during planning, they should be recorded in the ACP.  A copy of the documentation should also be retained by the Service(s) for reference during an oil spill.
2) Were new sensitive areas identified? Were new points of contact and parameters for notification agreed upon?  The Federal OSC should include that information in the Annex and elsewhere in the ACP as appropriate. 
3) If new resources (equipment or methods) for protecting or conserving listed species or critical habitat are identified, they should also be included.
4) Additional procedures can include methods of reporting or contacting agencies. Pre-approval processes for spill response are strongly encouraged in the ACP. 

## Chapter 7

- Emergency Response

**Notes:**
During an oil spill response involving listed species or critical habitat, emergency consultation procedures are used. Pre-planned ACP response measures generally form the basis for immediate response actions.  However, technical advice from endangered species experts is also sought through the Service(s)’ involvement in the Incident Command System.  In anticipation of follow-up formal consultation, information can be gathered during the response by using Appendix B of the MOA as necessary.  It is important to note that emergency consultation continues until the response portion of the case is closed by the Federal OSC.

## Emergency Response procedures are organized according to procedures in the NCP and Incident Management Handbook

 Every response is different
Steps in this chapter follow a stylized response

- Emergency Response procedures are organized according to procedures in the NCP and Incident Management Handbook
* **Every response is different*
- Steps in this chapter follow a stylized response

**Notes:**
NOTE to the Instructor:  This slide is intended to demonstrate that the drafters of the MOA recognize that each response is different. This chapter presents some guiding principles that can be applied fairly consistently to ensure proper documentation.

## Alerting the Federal OSC:
NRC			• Spiller
Another agency	• Witness
Federal OSC then alerts appropriate agencies and stakeholders

- Alerting the Federal OSC:
- NRC			• Spiller
- Another agency	• Witness
- Federal OSC then alerts appropriate agencies and stakeholders

**Notes:**
The Federal OSC receives notification that a spill has occurred through the NRC, the spiller, another agency, regional office, or perhaps through a witness. The Federal OSC is responsible for notifying Natural Resource Trustees and may contact other agencies and stakeholders regardless of the presence of listed species or critical habitat.  A “Notification Checklist” is usually found in the ACP.  Members of the RRT often forward information they receive to their own agencies.  

Planning should have established points of contact, phone numbers, and spill notification parameters.

## For any spill, a Federal OSC assesses:
Does the area that has been or may be affected by an oil spill contain listed species or critical habitat?

Obtain this information as quickly as possible during a response if it is not already in the ACP

- For any spill, a Federal OSC assesses:
- Does the area that has been or may be affected by an oil spill contain listed species or critical habitat?
- Obtain this information as quickly as possible during a response if it is not already in the ACP

**Notes:**
Among the many pieces of information gathered by the Federal OSC regarding the spill will be the area impacted (or potentially impacted) and what type of environmentally sensitive areas may be found there.  The location of listed species and critical habitat is very important for the Federal OSC to know when evaluating the spill.  

The Area Committee establishes procedures and sources for acquiring timely information regarding listed species and/or critical habitat during a response. 

## Listed species/critical habitat not present = No Emergency Consultation
Listed species/critical habitat present or could be present = initiate Emergency Consultation

- Listed species/critical habitat *not* present = No Emergency Consultation
- Listed species/critical habitat present or *could be* present = initiate Emergency Consultation

**Notes:**
If listed species or critical habitat are not present in the area affected by the spill response, then ESA emergency consultation is not required.  (However, the Services may still be involved in the response.  See Chapter 4.)

If listed species or critical habitat are present, or could be present, the Federal OSC should contact the Services for ESA support either directly or through agreed-upon procedures, such as contact through the DOC or DOI representative.  Emergency consultation is needed in situations where the recommended action will result in an effect on listed species or critical habitat.  It is possible that the Services could determine that the recommended action will cause no effects on the present species or habitat.  If this is the case, emergency consultation may not be necessary.

## a) Establish a Response Team
b) Implement ACP
c) Develop Incident Action Plan
	- Document recommendations
	- Pollution Removal Fund Authorization (PRFA)
d) Operations Section Implements the Incident Action Plan

- a) Establish a Response Team
- b) Implement ACP
- c) Develop Incident Action Plan
- 	- Document recommendations
- 	- Pollution Removal Fund Authorization (PRFA)
- d) Operations Section Implements the Incident Action Plan

**Notes:**
1) Establish a Response Team
NOAA SSC or FWS RRC may coordinate listed species and critical habitat expertise. The Services’ participation is necessary for a successful emergency response. Services may be asked to participate via the Planning Section’s Environmental Unit or through another section
2) Implement ACP
Initial actions taken at a spill are those listed in the ACP
3) Develop Incident Action Plan
Services provide the Federal OSC with timely recommendations to avoid or minimize impacts.  Document the recommendations as part of the consultation process!
More on PRFA in the next slide
4) Planning and Operations Section work closely to develop and implement incident action plans  Therefore, work may cycle between Step 3c and 3d depending upon the spill response.

## Funding Documentation 

- Funding another agency to compile the ESA documentation is at the discretion of the Federal OSC
- Pollution Removal Funding Authorization (PRFA)

**Notes:**
The Federal OSC has the discretion to fund another agency to develop Appendix B documentation.  THIS IS NOT THE SAME AS a Biological Assessment or a Biological Opinion.  (The Services are not reimbursed from the Oil Spill Liability Trust Fund for completing a BO.)  The Pollution Removal Funding Authorization (PRFA) is a tool available to the Federal OSC to quickly obtain needed services and assistance from state, local, or other Federal government agencies during oil spill response actions. 
The assisting government agency should:
 Obtain a PRFA
 Maintain Daily Resource Reports (Form CG-5136A-E)
 Prepare a SF-1080/1081
 Send the SF-1080/1081 with the Daily Resource Reports within 90 days after completion of response activities to the Federal OSC
 Identify a Point of Contact

## Step 4 - Closing the Response 

- Federal OSC determines the response is complete
- Complete Emergency Checklist (Appendix B) BEFORE the case is closed.
- Emergency Consultation Ends

**Notes:**
During an oil spill response that may adversely affect listed species or critical habitat, the spill response team operates under emergency consultation procedures.  Once the spill response is underway, emergency consultation continues until the case is closed, i.e., the Federal OSC determines that the spill response is complete.

When the Federal OSC determines when to close a case, consideration should be given to whether or not Appendix B (as appropriate) has been completed due to funding issues. Once the response portion of the case is closed, post-response guidelines take effect.  (Chapter 8.)

.** Note that work conducted on the spill can only be supported by National Pollution Funds Center funding (PRFA) while the case is open.

## Federal OSC and the Services are responsible for documenting communications
Emergency Response Checklist (Appendix B, MOA)

- Federal OSC and the Services are responsible for documenting communications
- Emergency Response Checklist (Appendix B, MOA)

**Notes:**
Other procedures may also be used as agreed upon regionally.  For example, daily POLREPS (pollution reports) may be used as a record.

BOTH the Federal OSC and the Services are responsible for documenting all written and oral communications during a spill
If listed species or critical habitat are present during the response, the Federal OSC may request that the Services, NOAA SSC, FWS RRC, or another agency compile the Emergency Response Checklist (Appendix B, MOA)

## Chapter 8

- Post-Response

**Notes:**
After a response is complete, there may be a need to complete ESA formal consultation, and review the response to determine if response measures or other procedures in the ACP should be changed.  As in each of the preceding stages, the post-response process requires teamwork and cooperation among agencies to assure that all relevant and appropriate documentation is presented.

## Post-Incident Consultation 

- Case is closed (i.e., the spill response concludes) but often _consultation_ continues
- Formal Consultation packet finalized
- Formal consultation is only required IF listed species or critical habitat were affected

**Notes:**
Even if a case is closed (i.e., the spill response concludes)  consultation may continue.
However, the Formal consultation packet is the Emergency Checklist (Appendix B) with a cover letter. It should be completed before the case is closed.  Funding for assessing the effects of RESPONSE ACTIVITIES is not available after the case is closed.
After a spill, formal consultation is only required IF listed species or critical habitat were effected.  IF listed species or critical habitat were effected, then the Federal OSC and Services need to work together to complete the consultation process

## Step 1 - Determination 

- Federal OSC and Services jointly review and evaluate the effects of the response measures on listed species and critical habitat
- No Impacts
- Consultation is complete
- Impacts
- Determine whether or not the impacts were adverse

**Notes:**
After the emergency response is complete, the Federal OSC and the Service(s) will jointly review and evaluate the effects of response activities on listed species and/or critical habitat.  A determination should be based on currently available data.
If the joint review results in a disagreement between the Service(s) and Federal OSC on whether listed species or critical habitat were affected by spill response activities, the Service(s) provide a letter stating why the Service(s) believe there were effects on listed species and/or critical habitat.  The Federal OSC can then choose to act on the Service(s)’ reply or simply document the response.
No Adverse Effect
Upon closing the case, the Federal OSC ensures lessons learned are recorded, documentation filed, and advises the Area Committee of any necessary changes to the ACP.  The data compiled for the Emergency Consultation Checklist, may also be forwarded to the Services in support of the no-adverse-effect determination, but it is not required.  
Adverse Effect
If through joint review and evaluation with the Service(s), the Federal OSC determines that response activities did, in fact, impact listed species or critical habitat, then the Federal OSC initiates formal consultation.

## Step 2 - Finalizing Emergency Consultation Checklist 

- Services assist Federal OSC in determining impacts on listed species and critical habitat
- Federal OSC, Services, or other agency as requested during the spill assist Federal OSC by ensuring that all documentation is complete

**Notes:**
To initiate formal consultation, the Federal OSC will finalize the Emergency Consultation Checklist and submit it with a cover letter as an initiation package to the Service(s).  
Note that if a Service representative assists in preparing the initiation package, the same representative will NOT be responsible for reviewing it.

## Step 3 - Formal Consultation

- Services determine whether or not initiation package materials are complete
- Once complete, Services make final determination, 135 days after receipt of initiation package
- Copies of Services’ response provided to:
- Federal OSC		- NOAA SSC
- FWS RRC		- DOI and DOC RRT
- Area Committee

**Notes:**
Once the information in the Checklist is complete, the Service(s) will make a final determination, generally in the form of a BO.  If incidental take of listed species occurred during the response, such take will be documented in the BO.  This document is generally produced within 135 days of receipt of the initiation package.

The Service(s) will forward their determination to the Federal OSC, with copies to the FWS RRC or NOAA SSC, DOI and DOC RRT representatives, and Area Committee.  

## Step 4 - Assess the Need for Changes

- What worked? Did not work?
- If any new strategies/response measures result, they may be incorporated into the ACP
- Example: Updating notification strategies; Updating listed species and critical habitat materials, etc.
- Letter of Concurrence
- Federal OSC may want to consider obtaining a letter of concurrence for newly adopted procedures as in the initial planning stage

**Notes:**
Once the formal consultation is complete, the Federal OSC should consider the results for inclusion in the lessons learned system.  The results may also be incorporated into the ACP for the benefit of future spill response actions. If the response actions resulted in take of listed species or adverse effects on critical habitat, the Area Committee could consider adjusting the ACP.  The Federal OSC should bring these considerations to the attention of the Area Committee as soon as possible.

If changes are made to the ACP as a result of the Service(s)’ BO, the Service(s) should document the changes and complete any appropriate administrative steps.  Assuming the changes result in better protection for listed species and/or critical habitat, the Federal OSC should consider obtaining a letter of concurrence documenting approval of the new measures, as in the initial planning phase.

## Work Full Circle

**Notes:**
Once the post-response paperwork is complete, issues have been discussed, and changes are suggested for the ACP, the process can begin again with a new evaluation of the newly recommended procedures.  The Area Committee, with the Services’ input, can evaluate any new procedures resulting from the consultation process.  Then the Federal OSC can once again request Service concurrence on the new procedures and so forth.