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ESSENTIAL FISH HABITAT CONSULTATION GUIDANCE
1.0 Effect Determinations and Consultation
Federal Action Agency Adversely Affect Determinations
The trigger for an EFH consultation is a Federal action agency's determination that an action or proposed action, funded, authorized or undertaken by that agency may adversely affect EFH. If a Federal agency makes such a determination, then EFH consultation is required.
If a Federal action agency determines that an action does not meet the may adversely affect EFH test (i.e., the action will not adversely affect EFH), no consultation is required. The Federal action agency is not required to contact NMFS about their determination, and should not be encouraged to do so. A "no effect on EFH" letter is not required or even addressed by either the statute or the EFH regulations. If an agency does send NMFS a "no effect on EFH" letter, NMFS may elect to respond in writing at NMFS' discretion, but a letter of concurrence from NMFS is not required.
If, as a result of an agency's request for concurrence, NMFS becomes aware of potential adverse effects on EFH, NMFS should so inform the Federal action agency and proceed as described in the following section.
NMFS Adversely Affect Determinations
If NMFS receives information regarding a Federal action agency action that may adversely affect EFH, but the action agency has not initiated EFH consultation, NMFS may inform the action agency of their need to consult with NMFS on actions that may adversely affect EFH, to fulfill their statutory obligations under MSFCMA. If the action agency has determined that their action will not adversely affect EFH, but NMFS disagrees, NMFS may ask the Federal agency to initiate EFH consultation so that NMFS will have appropriate information (the EFH Assessment) to develop EFH conservation recommendations. However, the Federal agency is not required to agree to NMFS' request. If NMFS believes that a Federal agency action would adversely affect EFH, NMFS is required by the MSFCMA to provide EFH conservation recommendations regardless of whether the Federal agency has initiated EFH consultation. The Federal action agency is required to respond to these recommendations in writing regardless of whether the action agency initiated consultation.
Consultation Initiation and Completion
An EFH consultation is generally initiated when notification and an EFH Assessment is provided to NMFS for a Federal action that may adversely affect EFH, although agencies may (and should be encouraged to) discuss EFH concerns in pre-application planning and other early phases of project development. An EFH consultation generally is concluded when a Federal agency provides a response to NMFS's EFH conservation recommendations. However, in the case of Programmatic Consultations and General Concurrences, additional consultation for specific types of activities may be required after an agency responds to EFH conservation recommendations.
Furthermore, the EFH regulations allow the NMFS Assistant Administrator to request further review of Federal action agency decisions that are contrary to NMFS recommendations (50 CFR 600.920(j)(2)). For Federal action agency decisions that are made in less than 30 days, the EFH regulations specify that the action agency's response to NMFS EFH conservation recommendations must be provided to NMFS at least 10 days before final action on the project (50 CFR 600.920(j)(1)), to allow for further review, if required. Although the EFH regulations do not specify this 10-day time period for projects authorized after more than 30 days, in practice a minimum 10-day window should be allowed between the action agency's response to NMFS and final action on the project, so that NMFS has the time to request further review, if needed.
Finally, supplemental consultation is required if the action agency substantially revises a proposed action such adverse effects that on EFH are changed, or if new information becomes available that affects the basis for NMFS' EFH conservation recommendations (50 CFR 600.920(k)).
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