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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XD572

# AGENCY:

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

# ACTION:

Notice of availability.

# SUMMARY:

                        NMFS is issuing this notice to provide the final California Eelgrass Mitigation Policy (CEMP) and Implementing Guidelines by NMFS West Coast Region (WCR) to agencies and the public to ensure there is a clear and transparent process for developing eelgrass mitigation recommendations. The intent of the CEMP is to help ensure consistent, effective, and appropriate mitigation of unavoidable impacts to eelgrass habitat throughout California. It is anticipated that the adoption and implementation of this policy will provide for enhanced success of eelgrass mitigation in California. The CEMP and Implementing Guidelines, responses to comments received on the draft CEMP, and other supporting documents are available at                         *http://wcr.nmfs.noaa.gov/​habitat/​*                         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. California supports dynamic eelgrass habitats that range in extent from less than 11,000 acres to possibly as much as 15,000 acres statewide. While among the most productive of habitats, the overall low statewide abundance makes eelgrass one of the rarest habitats in California. 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). Human activities that affect eelgrass habitat distribution and abundance, including, but not limited to, urban development, harbor development, aquaculture, agricultural runoff, effluent discharges, and upland land use associated sediment discharge (Duarte 2008) occur throughout California. The importance of eelgrass both ecologically and economically, coupled with ongoing human pressure and potentially increasing degradation and losses associated with climate change, highlight the need to protect, maintain, and where feasible, enhance eelgrass habitat.                

                    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 Magnuson Stevens Fishery Conservation and Management Act. NMFS developed the CEMP and Implementing Guidelines to establish and support a goal of protecting this resource and its habitat functions, including spatial coverage and density of eelgrass habitats. The CEMP includes NMFS' policy to recommend no net loss of eelgrass habitat function in California. For all of California, compensatory mitigation should be recommended for the loss of existing eelgrass habitat function, but only after avoidance and minimization of effects to eelgrass have been pursued to the maximum extent practicable. Our approach is congruous with the approach taken in the federal Clean Water Act guidelines under section 404(b)(1) (40 CFR part 230). In absence of a complete functional assessment, eelgrass distribution and density should serve as a proxy for eelgrass habitat function. Compensatory mitigation options include comprehensive management plans, in-kind mitigation,                           ( print page 66361)                        mitigation banks and in-lieu-fee programs, and out-of-kind mitigation.                

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. To achieve this, NMFS, in most instances, should recommend compensatory mitigation for vegetated and unvegetated eelgrass habitat is successfully completed at a ratio of at least 1.2:1 mitigation area to impact area.

Vegetated shallows that support eelgrass are also considered special aquatic sites under the 404(b)(1) guidelines of the Clean Water Act (40 CFR 230.43). Pursuant to the MSA, eelgrass is designated as an essential fish habitat (EFH) habitat area of particular concern (HAPC) for various federally-managed fish species within the Pacific Coast Groundfish Fishery Management Plan (FMP) (PFMC 2008). An HAPC is a subset of EFH that is rare, particularly susceptible to human-induced degradation, especially ecologically important, and/or located in an environmentally stressed area (See 50 CFR 600. 815(a)(8)).

This policy and guidelines support but do not expand upon existing NMFS authorities under the MSA, the Fish and Wildlife Coordination Act (FWCA), and the National Environmental Policy Act (NEPA). Pursuant to the EFH provisions of the MSA, FWCA, and NEPA, NMFS annually reviews and provides recommendations on numerous actions that may affect eelgrass resources throughout California. 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 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 NMFS trust resources. 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, among other things, the development of eelgrass habitat distribution maps, eelgrass surveys and survey reports, mitigation plans and implementation reports, and monitoring programs and reports.

The CEMP and Implementing Guidelines will serve as the guidance for staff and managers within NMFS WCR for developing recommendations concerning eelgrass issues through EFH and FWCA consultations and NEPA reviews throughout California. It is also contemplated that this policy inform WCR's position on eelgrass issues in other roles as a responsible, advisory, or funding agency or trustee. 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. As all mitigation will be decided on a case by case basis, circumstances may exist where NMFS WCR staff will need to modify or deviate from the recommendations discussed in the CEMP Implementing Guidelines.

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.

Dated: October 27, 2014.

Sean Corson,

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

[FR Doc. 2014-26467 Filed 11-6-14; 8:45 am]

BILLING CODE 3510-22-P