Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XB068 

# AGENCY:

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

# ACTION:

Notice of availability; request for comments.

# SUMMARY:

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

# DATES:

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

# ADDRESSES:

                        Comments on the CEMP may be submitted by mail to the National Marine Fisheries Service, 777 Sonoma Avenue, Suite 325, Santa Rosa, CA 95409, Attn: California Eelgrass Mitigation Policy Comments. Comments may also be sent via facsimile to (707) 578-3435. Comments may also be submitted electronically via email to                         *SWR.CEMP@noaa.gov.*                         All comments received will become part of the public record and will be available for review upon request.                    

                        The reports are available at                         *http://swr.nmfs.noaa.gov/​hcd/​or*                         by calling the contact person listed below or by sending a request to                         *Korie.Schaeffer@noaa.gov.*                         Please include appropriate contact information when requesting the documents.                    

# FOR FURTHER INFORMATION CONTACT:

Korie Schaeffer, at 707-575-6087.

# SUPPLEMENTARY INFORMATION:

                    Eelgrass species are seagrasses that occur in the temperate unconsolidated substrate of shallow coastal environments, enclosed bays, and estuaries. Seagrass habitat has been lost from temperate estuaries worldwide (Duarte 2002, Lotze                     *et al.*                     2006, Orth                     *et al.*                     2006). While both natural and human-induced mechanisms have contributed to these losses, impacts from human population expansion and associated pollution and upland development is the primary cause (Short and Wyllie-Echeverria 1996). Throughout California, human activities including, but not limited to, urban development, recreational boating, and commercial shipping continue to degrade, disturb, and/or destroy important eelgrass habitat. For example, dredging and filling; shading and alteration of circulation patterns; and watershed inputs of sediment, nutrients, and unnaturally concentrated or directed freshwater flows can directly and indirectly destroy eelgrass habitats. The importance of eelgrass both ecologically and economically, coupled with ongoing human pressure and potentially increasing degradation and loss from climate change, highlights the need to protect, maintain, and where feasible, enhance eelgrass habitat.                

Vegetated shallows that support eelgrass are considered a special aquatic site under the 404(b)(1) guidelines of the Clean Water Act (40 CFR 230.43). Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA), eelgrass is designated as Essential Fish Habitat (EFH) for various federally-managed fish species within the Pacific Coast Groundfish and Pacific Coast Salmon Fisheries Management Plans (FMP) (PFMC 2008). Eelgrass is also considered a habitat area of particular concern (HAPC) for various species within the Pacific Coast Groundfish FMP. An HAPC is a subset of EFH; these areas are rare, particularly susceptible to human-induced degradation, especially ecologically important, and/or located in an environmentally stressed area.

                    The mission of NMFS SWR-HCD is to conserve, protect, and manage living marine resources and the habitats that sustain them. Eelgrass is a habitat of particular concern relative to accomplishing this mission. Pursuant to the EFH provisions of the MSA, the Fish and Wildlife Coordination Act (FWCA), and obligations under the National Environmental Policy Act (NEPA) as a responsible agency, NMFS Southwest Region annually reviews and provides recommendations on numerous actions that may affect eelgrass resources throughout California, the only state within NMFS SWR that supports eelgrass resources. Section 305(b)(1)(D) of the MSA requires NMFS to coordinate with, and provide information to, other Federal agencies regarding the conservation and enhancement of EFH. Section 305(b)(2) requires all Federal agencies to consult with the NMFS on all actions or proposed actions authorized, funded, or undertaken by the agency that may adversely affect EFH. Under section 305(b)(4) of the MSA, NMFS is required to provide EFH Conservation Recommendations to Federal and state agencies for actions that would adversely affect EFH (50 CFR 600.925). NMFS makes its recommendations with the goal of avoiding, minimizing, or otherwise compensating for adverse effects to EFH. When impacts to NMFS trust resources are unavoidable, NMFS may recommend compensatory mitigation to offset those impacts. In order to fulfill its consultative role, NMFS may also recommend,                     *inter alia,*                     the development of mitigation plans, habitat distribution maps, surveys and survey reports, progress milestones, monitoring programs, and reports                           ( print page 14350)                        verifying the completion of mitigation activities.                

Eelgrass warrants a strong protection strategy because of the important biological, physical, and economic values it provides, as well as its importance to managed species under the MSA. NMFS developed this policy to establish and support a goal of protecting this resource and its functions, including spatial coverage and density of eelgrass beds. Further, it is the intent of this policy to ensure that there is no net loss of habitat functions associated with delays in establishing compensatory mitigation. This is to be accomplished by creating a greater amount of eelgrass than is lost, if the mitigation is performed contemporaneously or after the impacts occur.

This policy will serve as the guidance for staff and managers within NMFS SWR for developing recommendations concerning eelgrass issues through EFH and FWCA consultations and NEPA reviews throughout California. It is also contemplated that this policy inform SWR's position on eelgrass issues in other roles as a responsible, advisory, or funding agency or trustee. In addition, this document provides guidance on the procedures developed to assist NMFS SWR in performing its consultative role under the statutes described above. Finally, pursuant to NMFS obligation to provide information to federal agencies under section 305(b)(1)(D) of the MSA, this policy serves that role by providing information intended to further the conservation and enhancement of EFH. Should this policy be inconsistent with any formally-promulgated NMFS regulations, those formally-promulgated regulations will supplant any inconsistent provisions of this policy.

While many of the activities impacting eelgrass are similar across California, eelgrass stressors and growth characteristics differ between southern California (U.S./Mexico border to Pt. Conception), central California (Point Conception to San Francisco Bay entrance), San Francisco Bay, and northern California (San Francisco Bay to the California/Oregon border). The amount of scientific information available to base management decisions on also differs among areas within California, with considerably more information and history with eelgrass habitat management in southern California than the other regions. Gaps in region-specific scientific information do not override the need to be protective of all eelgrass while relying on the best information currently available from areas within and outside of California. Although the primary orientation of this policy is toward statewide use, specific elements of this policy may differ between southern California, central California, northern California and San Francisco Bay.

This policy is consistent with NMFS support for developing comprehensive resource protection strategies that are protective of eelgrass resources within the context of broader ecosystem needs and management objectives. As such, this policy provides for the modified application of policy elements for plans that provide comparable eelgrass resource protection.

For all of California, eelgrass compensatory mitigation should be considered only after avoidance and minimization of effects to eelgrass have been pursued to the fullest extent possible. Mitigation should be recommended for the loss of existing vegetated areas and the loss of unvegetated areas that have been demonstrated capable of supporting eelgrass based on recent history of eelgrass investigations, unless physical manipulation of the environment has permanently altered site suitability for eelgrass or a change in the baseline has occurred.

Under this policy, as is the case with the present Southern California Eelgrass Mitigation Policy, the burden for successful mitigation rests with the action party. As such, the action party should fully consider and evaluate the costs and risks associated with eelgrass mitigation and should take appropriate measures to ensure success in achieving required performance milestones. While NMFS staff can provide technical assistance, action parties are advised that they are ultimately responsible for achieving mitigation success under this policy, irrespective of advice or technical assistance provided by NMFS, other agencies, or technical experts.

## Authority

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

Dated: March 5, 2012.

Brian T. Pawlak,

Acting Director, Office of Habitat Conservation, National Marine Fisheries Service.

[FR Doc. 2012-5811 Filed 3-8-12; 8:45 am]

BILLING CODE 3510-22-P