Thank you for all of those who helped out with BPC’s public comments on the California Eelgrass Mitigation Policy Draft! Continue reading to view the letter.
July 7, 2012
National Marine Fisheries Service
777 Sonoma Avenue, Suite 325
Santa Rosa, CA 95409
Attn: California Eelgrass Mitigation Policy Comments.
To whom it concerns:
The Bay Planning Coalition (BPC) appreciates the opportunity to submit comments on the California Eelgrass Mitigation Policy (CEMP). Founded in 1983, BPC is a non-profit, membership-based organization representing public and private entities in the maritime industry and related shoreline businesses, ports and local governments, landowners, recreational users, labor unions, residential and commercial builders, environmental and business organizations, and professional service firms in engineering, construction, law, planning, and environmental sciences. The mission of the BPC is to work through a broad coalition, which will enhance the quality of life in the San Francisco Bay Region. Our membership is very interested in maintaining eelgrass habitat within San Francisco Bay while balanced with the other environmental and economic factors that affect maritime industries in San Francisco Bay.
When adopting policies which may impact the maritime industry and movement of goods in northern California it is important to understand the potential economic impacts to our region. In addition, such economic impacts should be taken into account when evaluating policies and setting administrative actions. The economy of our geography, the nine Bay Area counties plus the Sacramento and San Joaquin Valleys is an international powerhouse. When compared to other world economies, our geographic region ranks 17th in GDP to the amount of $ 752 billion.
BPC understands that most recent (2009) eelgrass population data show that eelgrass comprises over 1500 hectares in San Francisco Bay which represents a nearly a 28% increase from that observed in 2003. Eelgrass has expanded substantially based on previous surveys and it appears to be able to re-establish itself readily from seed, given proper water quality conditions.
The BPC primary concerns with the proposed policy are as follows and BPC suggests a number of potential changes in the policy to reflect those concerns:
- The policy does not recognize that eelgrass readily colonizes dredged areas as they silt in over time. Port and marina operators are faced with many practical, environmental, and economic realities when conducting maintenance dredging and often dredging does not occur as frequently as desired. These delays result in shallower depths that can be colonized by eelgrass which then presents another permitting challenge (and potential delay) in dredging. BPC recommends that the National Marine Fisheries Service (NMFS) (Service) policy recognize and exempt from mitigation, those projects which are conducting maintenance dredging to restore areas to their previously authorized depths and configuration. This exemption from the policy should be explicitly stated in the guidelines and is consistent with other federal policies related to maintenance dredging activities.
- The policy does not provide any distinction between temporary impacts and permanent losses. In many cases, eelgrass recolonizes suitable areas rapidly after initial disturbance. Often, small dredging projects for marinas results in minimal impact and eelgrass recovers quickly. We believe that mitigation measures should be less stringent under these conditions and not involve substantial amounts of transplanting when natural recovery is possible and likely over time. BPC suggests that the placement of buoy-deployed seed bags in an area be used to mitigate for temporary impacts. These methods have been proven to be effective in San Francisco Bay by the Romberg Tiburon Center. Because these methods promote the spread of seed in an area, the mitigation monitoring as proposed in the policy would be difficult to implement—which is primarily focused on transplant monitoring. BPC recommends that should an applicant use seed bags that the monitoring be limited to a demonstration that new plants have been established nearby and a strict acreage requirement is not necessary for these temporary impacts.
- The policy contains a number of methods, procedures, and steps to be followed; however, the sequence in which various actions must be undertaken are not clearly explained so that an applicant can understand how to proceed. BPC suggests that a flow chart be inserted in the policy that shows where surveys, permitting, post-construction monitoring, remediation, and various reporting requirements fit into compliance with the policy.
- The definition of an eelgrass bed substantially expands what would be considered as eelgrass beds. BPC believes that the definition proposed is not sufficiently supported by scientific study specific to the turbid waters of San Francisco Bay. The application of a 10 meter buffer around individual eelgrass plants, for example, will greatly increase the cost of mitigation as the ratio applies to both the individual eelgrass and the buffer. In essence, the applicant will have to transplant areas that are considerably greater than the resource that is impacted. BPC recommends that the NMFS use a definition based on a combination of size and density of cover, such as 10% cover in an area larger than 0.01 acres. BPC also requests that the use of a buffer to define an eelgrass bed be eliminated from the policy until such time that it can be supported by scientific information from San Francisco Bay. Finally, BPC recommends that should the buffer remain in the policy that the mitigation ratios not apply to the buffer area.
- BPC believes that the proposed mitigation formula is too complicated to be understood by the general public (i.e. end user) and that the use of the formula should be removed from the policy. The formula goes beyond the standard level of mathematical understanding of even the most knowledgeable of individuals who work in the field. For example, the policy states that NMFS simply applied a “period of 13 years” into the formula for achieving full replacement of lost habitat function; with no basis either in science or as explained in the policy. This number is significant because it directly affects the mitigation ratio. Because the formula is complicated, individual numbers can be adjusted and make a substantial difference in the ratio. BPC requests that it be replaced, if necessary, with plain English.
- The mitigation ratio for San Francisco Bay is over 3:1 based on only a few projects using transplant methods. BPC understands that eventually the applicant only needs to achieve a 1.2 to 1 ratio to be deemed meeting the requirements, however, the 3:1 ratio is excessive in terms of the availability of sites where mitigation can be achieved and the cost to implement a transplant program and monitoring plan over a much larger area. BPC recommends that for projects that are not maintenance projects to return areas to their authorized depths or for projects that have temporary effects only, that the mitigation ratio in San Francisco Bay be held at 1:1.
- Many of our small business members are concerned with the time and cost associated with the pre-construction surveys, the time in which mitigation needs to be implemented, and the number and frequency of monitoring requirements. As the Service is aware, dredging in San Francisco Bay is restricted by a number of environmental windows that do not necessarily correspond to the requirements as set forth in this policy. Often, dredging windows in the fall are not suitable for transplanting eelgrass immediately following the project and the project is therefore penalized for not conducting its mitigation effort in a timely way. Because eelgrass is generally declining in the fall and winter, it is not providing the same level of habitat quality as in the summer when pre-construction surveys may have been conducted. BPC recommends that the Service reconsider its timing requirements for eelgrass in concert with other environmental windows it has established for dredging projects. In addition, BPC recommends that the Service review its monitoring requirements and consider revisions for projects that affect small areas of eelgrass to reduce overall costs to the applicant.
- The success standards require that eventually the mitigation site achieves a minimum of 100 percent cover of eelgrass at the end of 60 months (compared to a reference site)—even if the impacted area had less than 1% cover of eelgrass. There is no connection between the quality and density of the impacted site and that required in the mitigation site to meet success—a much higher percent cover and density than what was impacted will have to be achieved. BPC requests that the mitigation success be based solely on the cover that existed in the impacted area prior to construction. If mitigation success is achieved early in terms of meeting the 1:1 mitigation ratio recommended above, the policy should provide for a mechanism to reduce the level of monitoring and reporting required.
- In BPC’s experience, policies such as proposed by the NMFS do become entrenched in the regulatory setting. Given the amount of time and effort that the NMFS has spent in developing this policy, it is not likely to be changed very frequently, if at all. At present, the policy appears to be strict in its application, however, there are many instances where flexibility is warranted, for example with small projects, with temporary impacts to annual plants, or in the use of new and innovative methods such as those being developed at the Romberg Tiburon Center. The policy should have significant and strong wording that flexibility should be applied by regulators and that the use of this policy is for guidance only and that additional circumstances or actions could warrant different approaches.
The Bay Planning Coalition greatly appreciates the opportunity to comment on this policy and for the public hearing that the Service provided in June to receive public comments. We request that the Service publish an account of the comments received and provide responses to those comments so that the basis for the final policy is understood by the public and the regulators who will implement this policy.
John A. Coleman