Fsm 2600 Wildlife, Fish, and Sensitive Plant Habitat Management

fsm 2600 – wildlife, fish, and sensitive plant habitat management

chapteR 2610 – coopertive relations

Supplement No.: R-10 2600-2006-1

Effective Date: June 2, 2006

Duration: This supplement is effective until superseded or removed.

Posting Instructions: Supplements are numbered consecutively by title number and calendar year. Post by document; remove the entire document and replace it with this supplement. Retain this transmittal as the first page(s) of this document. The last supplement to this title was R-10 2600-2005-1 to chapter 2570.

Digest:

This supplement replaces 98MOU-10-011 with 04MU-111001-094. The original Memorandum of Understanding (MOU) was between Alaska Department of Fish and Game (ADF&G), Habitat Division, and the Forest Service to identify how the two agencies would work together concerning construction activities within stream habitats. A new agency, Alaska Department of Natural Resources (ADNR), Office of Habitat Management now is responsible for the instream permitting duties. This MOU transfers the same agreed to procedures from ADF&G to ADNR.

2611 - COOPERATION WITH STATE WILDLIFE AND FISH MANGEMENT AGENCIES

2611.1 - State--Forest Service Memorandum of Understanding

The USDA Forest Service, Alaska Region and the State of Alaska, Department of Natural Resources, Office of Habitat Management have the common desire to protect, maintain, and enhance the fish resources on National Forests in Alaska and to continue a long-standing cooperative relationship (FS Agreement No. 04MU-111001-094).

FS Agreement No. 04MU-111001-094

Cooperator’s No. ______

6/25/2004

MEMORANDUM OF UNDERSTANDING

between

USDA FOREST SERVICE

ALASKA REGION

and the

STATE OF ALASKA

DEPARTMENT OF NATURAL RESOURCES

This MEMORANDUM OF UNDERSTANDING (MOU) is hereby entered into by and between the USDA Forest Service, Alaska Region, hereinafter referred to as the Forest Service, and the State of Alaska, Department of Natural Resources, hereinafter referred to as the ADNR-OHMP or Cooperator.

A. PURPOSE:

The Forest Service and the ADNR-OHMP have the common desire to protect, maintain, and enhance the fish resources on National Forests in Alaska and to continue a long-standing cooperative relationship. To achieve these goals as set out more fully below, we each commit to do the following:

1. Protect fish habitat and efficient fish passage;

2. Reach concurrence prior to instream activities in fish habitat usingthe collaborative process identified in this MOU;

3. Emphasize the joint development of general concurrence regarding design standards and environmental controls for categories of instream activities that will be adopted as addendums to this MOU to promote efficient implementation of this MOU; and

4. Resolve disputes regarding instream activities in a timely manner, elevating the dispute within the agencies if necessary as a last resort.

While there continues to be different views on the applicability of Alaska Statute 41.14 on National Forest Lands in Alaska, the Forest Service and ADNR-OHMP agree that since they share a commitment to protect fish habitat, cooperation between the agencies serves the mutual interests of the agencies and the public. The Forest Service has authority to manage fish and wildlife habitat on the National Forests in Alaska under the Organic Act, the National Forest

Management Act, and other legislation. The ADNR-OHMP is charged under statutes of the State of Alaska to conserve and protect the fish and wildlife resources of Alaska. The ADNR-OHMP has a specific responsibility under Alaska statute related to anadromous fish habitat, and for other fish to ensure fish passage.

Statement of Mutual Interests and Benefits

The ADNR-OHMP has a special interest directed by Alaska Statute in any hydraulic project, or use, which may divert, obstruct, pollute, or change the natural flow or bed of a specified river, lake, or stream, or which may include the use of wheeled, tracked, or excavating equipment or log-dragging equipment in the bed of a river, lake, or stream “specified” in the latest version of the Catalog of Waters Important for the Spawning, Rearing or Migration of Anadromous Fishes. The ADNR-OHMP is charged by Alaska Statute to ensure that anadromous fish habitat and fish passage are protected during activities such as installation of culverts or dams, realignment or diversion of a stream, installation of a ford (vehicular crossings of a stream at low water), or construction, placement, disposal or removal of any material or structure below ordinary high water of a fish stream including “specific” waters and fish bearing water-bodies not in the Catalog.

Both Forest Service and ADNR-OHMP agree that it is essential to have open dialog, share information, and collect, store, and transmit data in a form that promotes efficient collaboration to protect fish habitat and passage.

Specific Provisions

In light of the above premises, and in order to enhance the relationship between the agencies, the Forest Service and ADNR state their joint understanding as follows:

B. ADNR-OHMP SHALL:

1. Provide information on known anadromous and resident fish streams and any related issues during a project’s NEPA review using normal review procedures.

2. Provide preliminary recommendations regarding stream crossing locations, culverts versus bridges, instream work windows, etc., upon the Forest Service’s request for ADNR-OHMP’s early review of proposed instream activities during a project’s preliminary design phases.

3. Review the Forest Service’s Notice of Instream Activity (hereafter called “Notice’) with plans and specifications as defined in Addendum I, and notify the Forest Service within 14-calendar days of any additional information that is required by this MOU.

4. Within 30-calendar days of receipt of a Notice, provide a written response to the Forest Service indicating concurrence with the proposed activity, with or without modifications. If concurrence is not initially achieved at the field level, follow the dispute resolution process below (see Section D, Item No. 1). See Addendum I for a description of the information requirements.

5. Should unforeseen circumstances arise on a project that may be detrimental to the fisheries resource, work with the Forest Service in an expedited manner to reach concurrence on how to proceed regarding instream activities.

6. In the event of an emergency need for instream work in a fish stream, collaborate with the Forest Service in an expedited manner to reach concurrence on emergency work provisions. Any oral concurrence will be put in writing by ADNR-OHMP and sent to the Forest Service for confirmation within 30-calendar days of reaching concurrence on emergency provisions.

7. Keep the Forest Service informed of the appropriate ADNR-OHMP Area Habitat Biologist to receive Notices for a particular Ranger District and to serve as emergency contacts.

8. As it becomes available; share information, data, research, and other knowledge related to the National Forests and to the management of fisheries and effects on fisheries.

C. FOREST SERVICE SHALL:

1. Cooperate with the ADNR-OHMP in the updating and mapping of the Catalog of Waters Important for the Spawning, Rearing, or Migration of Anadromous Fishes by providing nominations to the Catalog. The Forest Service maintains mapping of waters and attribute information in the Arc Info Geographic Information System database. The Forest Service and ADNR-OHMP will share electronic information periodically to ensure each has current data.

2. Provide early notification to, and opportunity for involvement by, ADNR-OHMP in planning instream activities in fish streams during the NEPA phases of project planning.

3. Seek the preliminary recommendations of ADNR-OHMP early in the planning process before design choices are made (e.g., culvert versus bridge, crossing location, size of structure, etc.).

4. Provide Notice of Instream Activity with plans and specifications (see Addendum I for required information) to ADNR-OHMP for their review at least 30-calendar days prior to the date when the designs need to be finalized, unless an emergency situation exists. Reach concurrence with ADNR-OHMP prior to finalizing design of instream activity or the beginning of any instream activity. If concurrence is not initially achieved at the field level, follow the dispute resolution recess below (see Section D, Item No. 1).

5. In cases of emergencies requiring instream activities in fish habitat, notify ADNR-OHMP as soon as practicable regarding the emergency activity needed and provide ADNR-OHMP an opportunity to reach concurrence. Final repairs will be handled as a normal project review under this MOU.

6. The Forest Service will incorporate the plans, specifications and provisions for which concurrence was reached with ADNR_OHMP in the final drawings and specifications in all their contracts for instream activities and ensure quality control during construction. Should unforeseen circumstances arise on a project that may be detrimental to the fisheries resource, the Forest Service shall notify the ADNR-OHMP Area Habitat Biologist and reach concurrence with ADNR-OHMP on how to proceed regarding instream activities.

7. The Forest Service will provide an estimate of instream activity design reviews by Ranger District expected to be needed under this MOU for the period July 1-June 30 of each year by September 30 of the preceding year so that ADNR-OHMP may seek adequate funding to implement this MOU.

D. IT IS MUTUALLY AGREED AND UNDERSTOOD BY ALL PARTIES THAT:

1. Both parties will resolve any disputes that may arise regarding instream activities in fish habitat between their respective field level staffs due to differing interpretations of available data and/or information, differing professional opinions, or other reasons. It is the expectation of both Forest Service and ADNR-OHMP that disputes will be resolved at the field level. Resolution methods may include, but are not limited to:

a. Reiterating and clarifying common points of agreement and mutual interests to help frame the context for the dispute, and thereby defuse it;

b. Conducting joint site visits for those involved in the dispute to discuss and reconcile what is at issue at the site; or

c. Reconciling data and/or information interpretation and differences through competent third party reviews.

When disputes cannot be resolved at the field level, the disputes may be referred to the next higher organizational level of each agency for resolution. This means the Forest Service District Ranger and the ADNR-OHMP Area Manager; then the Forest Service Forest Supervisor and the ADNR-OHMP Operations Manager; and finally the Forest Service Regional Forester and the ADNR-OHMP Executive Director. Referral needs to be done in a timely manner. Where elevation of issues is necessary, the involved staff members shall jointly prepare a briefing paper which describes the situation and includes: necessary background information, a list of the differences that need to be resolved, proposed

alternative solutions to resolve the differences, and the rationale for proposing each potential solution. Copies of the joint briefing paper will be provided to the next level of officials in each agency for review, discussion, resolution, or further referral if necessary. All agency efforts related to instream activities will be focused on resolving any disputes through this alternative dispute resolution process. In the event of inability to reach concurrence, each signatory may take actions they deem appropriate.

A post-action review will be conducted if requested by either Forest Service or ADNR-OHMP.

2. Both Forest Service and ADNR-OHMP will inform all relevant staff about this MOU and ensure it is fully implemented.

3. Both Forest Service and ADNR-OHMP will collaborate in the monitoring of instream activities. In the event that monitoring uncovers activities inconsistent with this MOU or the project-specific concurrences, then both Forest Service and ADNR-OHMP will work together to resolve the matter administratively in a timely manner.

4. Forest Service District Rangers and ADNR-OHMP Area Managers carry principal responsibility for implementing this MOU.

5. The MOU is executed as of the date of the last signature and is effective through September 30, 2009, at which time it will expire unless extended.

6. Any of the parties, in writing, may terminate the MOU in whole or in part, at any time before the date of expiration.

7. Modifications within the scope of the MOU shall be made by mutual consent of the parties, by the issuance of a written modification, signed and dated by all parties, prior to any changes being performed.

8. This MOU in no way restricts the Forest Service or ADNR-OHMP from participating in similar activities with other public or private agencies, organizations, and individuals.

9. This MOU is neither a fiscal nor a funds obligation document. Any endeavor or transfer of anything of value involving reimbursement or pursuant to this MOU will be handled in accordance with applicable laws, regulations, and procedures including those for Government procurement and printing. Such endeavors will be outlined in separate agreements that shall be made in writing by representatives of the agencies and shall be independently authorized by appropriate statutory authority. This does not provide such authority. Specifically, this MOU does not establish authority for noncompetitive award to the Cooperator of any contract or other agreement. Any contract or agreement for training or other services must fully comply with all applicable requirements for competition.

10. The Department of Agriculture and the State of Alaska and their respective agencies and offices will handle their own activities and utilize their own resources, including the expenditure of their own funds, in pursuing these objectives. Each party will carry out its separate activities in a coordinated and mutually beneficial manner.

11. Any information furnished to the Forest Service under this MOU is subject to the Freedom of Information Act (5U.S.C. 552).

Definitions

Design is a process. The purpose of design is to ensure that all applicable standards and practices are met, while also meeting a project’s purpose and function. Designs normally consist of analysis, determination of size(s), layout, in-water work windows, and environmental controls. The design is normally subject to peer review, and results in construction drawings and specifications.

Emergency means a situation which would result in an unacceptable hazard to like, unacceptable resource damage, or other activities that cause adverse perturbations to stream flow or aquatic habitat conditions. An official identification of an exigency requiring immediate action such as plugged culvert, landslides into streams, bridge abutment scour, debris plugs, buildings threatened, hazardous materials spills, vehicle accidents, etc., constitute and emergency, and action will be taken within a time period less than the normal time under this MOU. Emergencies include situations where replacement or repairs are needed or instream obstructions need to be removed because of weather or stream flow conditions. Inadequate planning does not constitute an emergency need to work outside normal instream work windows.

Final Drawings and Specs means the portion of the work processes representing the completion of plans and specifications as part of a contract package. At this step, technical approval and line officer’s approval of the drawing indicates the meeting of all intended prescriptions, including those in the NEPA decision and the completed concurrence from the preliminary design and near-final design work processes.

Fish means anadromous or resident species inhabiting freshwater habitats and intertidal streams in the Tongass or ChugachNational Forests.

General Concurrence means a signed addendum to this MOU that defines the design standards and environmental controls for a category of instream activities for which no further project-specific review by ADNR-OHMP related to Title 41.14 is required. A general concurrence may be restricted to a particular geographic area, class of streams, or specific channel types.

Instream activities means an activity within a fish-bearing water-body below the ordinary high watermark on the bank that involves one or more of the following types of situations: Construct hydraulic project; or use, divert, obstruct, pollute, or change the natural flow or bed of a specified river, lake, or stream; or use wheeled, tracked, or excavating equipment, or log-dragging equipment in the bed of a river, lake, or stream “specified” in the latest version of the Catalog of Waters Important for the Spawning, Rearing, or Migration of Anadromous Fishes; or install or maintain a culvert or dam, realign or divert a fish stream, make vehicular crossings of a stream at low water; or construct, place, dispose or remove any material or structure below ordinary high water of a fish stream, including “specified” waters and fish-bearing water-bodies not in the Catalog.

Near-final design means the design stage of an instream activity when all of the information required in Addendum I can be provided to ADNR-OHMP for their review and concurrence and before the Forest Service has finalized the design. Near-final design is that portion of the work which represents the completion of the technical engineering with related evaluation by biologists to assure the hydraulic structure meets the functional requirements for passage of peak flows, fish passage if the stream is a fish stream, and maintenance requirements.

NEPA is the acronym for the National Environmental Policy Act of 1969.

Notice of Instream Activity means the formal written notification to the Area habitat Biologist of ADNR-OHMP responsible for project reviews in a particular Ranger District that a proposed instream activity is ready for the 30-day final SDNR-OHMP review for their concurrence and includes complete, near-final construction drawings and construction specifications. See Addendum I for detailed description of information requirements of a formal Notice.

Preliminary design means that point in the design process after the NEPA Record of Decision when field surveys have been completed and, in the case of logging roads, timber sales are being laid out, when structure size, alignment, and crossing site are being determined. Work at this stage represents verified work to assure the direction in the decision document can be accomplished substantially as directed.