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ESSENTIAL FISH HABITAT CONSULTATION GUIDANCE 2.0 Use of Existing Procedures for EFH Consultation
The MSFCMA requires Federal agencies to consult with NMFS on actions that may adversely affect EFH, and to respond within 30 days to any EFH conservation recommendations provided by NMFS or the Councils. The EFH consultation regulations state that existing procedures should be used to the greatest extent possible (50 CFR 600.920(e)). Criteria for using existing procedures include: NMFS making a finding that the existing process will satisfy the MSFCMA requirements; and the Federal agency providing timely notification (sufficient to develop EFH conservation recommendations) and an assessment of the impacts on EFH.
There are four essential elements of EFH consultation:
1) the Federal agency provides to NMFS notification of an activity that may adversely affect EFH
2) the Federal agency provides to NMFS an assessment of effects on EFH with notification
3) NMFS provides to the Federal agency EFH conservation recommendations
4) the Federal agency provides to NMFS a detailed written response, within 30 days of receiving NMFS EFH conservation recommendations (at least 10 days before final approval of the action for decisions that are rendered in fewer than 30 days).
Many existing procedures have elements 1-3, and a few have 1-4. Following are descriptions of the four most commonly used existing procedures for coordination between NMFS and other Federal agencies on activities in aquatic habitat, and how those procedures can be used for EFH consultation. Most require some slight modification or additions to comply with the Act and the EFH regulations.
In many cases, a Federal activity requiring consultation will be subject to more than one existing consultation process (e.g, ESA section 7 consultation as well as NEPA). In this instance, NMFS and the Federal action agency must decide at the regional level which existing process to use to accomplish EFH consultation. The process chosen should be the one that provides the most efficient and effective coordination with the Federal agency.
NMFS must issue a finding before an existing environmental review process may serve as the means for EFH consultation. Either NMFS or a Federal agency may initiate discussions on using an existing procedure to accomplish EFH consultation. After discussions between NMFS and Federal agency staff about the Federal agency's existing process and the EFH consultation requirements, the two agencies should agree on how to fulfill the requirements of EFH consultation using the existing process. At this point, the Federal agency could write a letter requesting that NMFS make a finding that the existing process can be used to meet the EFH consultation requirements. NMFS would respond with a letter that details how the existing process will be used for EFH consultation. Alternatively, NMFS could send the Federal action agency a letter detailing how the two agencies have agreed to use an existing procedure for EFH consultation, and the Federal agency respond in writing, confirming that agreement. A finding should include four essential elements: 1) how the action agency will notify NMFS of projects with the potential to adversely affect EFH, 2) how the EFH Assessment will be provided, 3) how NMFS will provide EFH conservation recommendations, 4) how the action agency will respond to those comments. Sample findings are included in Appendix 2.
For instances where NMFS does not find that an agency's existing process will meet EFH consultation requirements, NMFS should respond with a letter containing language similar to that in Appendix 2.
Because many existing processes are implemented somewhat differently in different regions, the most appropriate level for developing a finding will usually be in the NMFS regions. However, there may be instances when NMFS HQ will develop a finding, with input from the regions.
Most Commonly-Used Existing Processes
National Environmental Policy Act:
The EIS process:
1) Notification - Notification to NMFS occurs when NMFS, through NOAA, receives a draft EIS. The action agency should clearly state in the draft EIS that the NEPA process is being used for EFH consultation. Informally, the scoping process will often provide early notification before the draft EIS is prepared.
2) EFH Assessment - Impact on EFH should be addressed in the draft EIS, in a chapter or section titled "EFH" or something similar enough so that a reader can identify the EFH information from the table of contents. This section may reference pertinent information in the Affected Environment and Environmental Consequences chapters. The information should include both an identification of affected EFH and an assessment of impacts.
3) EFH conservation recommendations - NMFS provides EFH conservation recommendations as part of NOAA's comments on the draft EIS, in a separate section of NOAA's comment letter called "EFH Conservation Recommendations". Under existing NOAA procedures, EIS comments are normally provided to NOAA for forwarding to the Federal agency, but may also be provided directly to the Federal agency by NMFS at the same time.
4) Agency response - Within 30 days of receiving NMFS' recommendations, the Federal agency sends a preliminary response stating that the agency has received NMFS' EFH conservation recommendations, will consider them fully, has not yet made a decision on the project, but will respond to NMFS' EFH recommendations fully when the agency has made a decision in approximately ## days. The agency then responds fully in the final EIS, in a section or chapter clearly labeled as such. If the final EIS comes out within 30 days of the agency receiving the NMFS recommendations, the preliminary letter is not needed. Under NEPA regulations, the Record of Decision (ROD) cannot be signed until 30 days after the final EIS goes out, so NMFS will have time to request further review, if necessary.
1) Notification - Notification to NMFS occurs when NMFS receives a draft EA. It should be clearly stated in the EA or transmittal letter that the agency is initiating EFH consultation. Many agencies do not normally circulate draft EAs for comment, but if the agency wants to use the EA process for EFH consultation, they must give NMFS a draft EA and delay signing a Finding of No Significant Impact (FONSI) until after the agency responds to NMFS EFH recommendations. If an agency does not wish to provide a draft EA to NMFS, they may use some other process for EFH consultation.
2) EFH Assessment - Impact on EFH should be addressed in the EA, in either a chapter titled "EFH" or in a section on environmental impacts. This section may reference pertinent information in other sections. The information must be clearly labeled as the information required in an EFH Assessment and should include both an identification of affected EFH and an assessment of impacts.
3) EFH conservation recommendations - NMFS provides EFH conservation recommendations as part of NMFS comments on the EA, in a separate section of NMFS' comment letter called "EFH Conservation Recommendations". Under existing NOAA procedures, EA comments are normally provided from NMFS directly to the Federal agency.
4) Agency response - Within 30 days of receiving NMFS' recommendations, the Federal agency sends a preliminary response stating that the agency has received NMFS's EFH conservation recommendations, will consider them fully, has not yet made a decision on the project, but will respond to NMFS's EFH conservation recommendations fully when a decision has been made, in approximately ## days. The agency then responds fully in a detailed letter provided to NMFS at least 10 days before the agency signs a FONSI. If the agency makes a decision within 30 days of receiving NMFS recommendations, the preliminary letter is not necessary.
Consultation under the Endangered Species Act (ESA) should be coordinated with EFH consultation so that the two processes proceed concurrently to the extent appropriate (considering the species involved). One process should not be subsumed in the other; rather they should proceed in parallel. When combined consultation is necessary because the species affected is both managed under the MSFCMA and listed under the ESA, information required of the Federal agency and recommendations developed by NMFS should be very similar for the two consultation processes. In cases where combined consultation is necessary because an action will affect a listed species and a different managed species, consultation should be coordinated, but information requirements and recommendations may differ (but should not conflict). In the latter case, issues may be resolved for the listed species, but not the managed species, or vice-versa, in which case one consultation process would come to completion while the other continues. Good communication between the Habitat Conservation (HC) and Protected Resources (PR) Divisions with NMFS regions is essential to facilitating parallel ESA and EFH consultation. Any conflicts between ESA recommendations and EFH recommendations must be resolved within NMFS before being sent to the Federal agency.
NMFS takes several types of internal actions related to ESA, including approving Habitat Conservation Plans, issuing section 10 incidental take permits, and developing Recovery Plans. If any of these actions may have an adverse effect on EFH, an EFH consultation will be required. These consultations may require developing new internal procedures.
ESA consultation often involves discussions with Federal agencies at very early stages in the project planning process. Many times, issues related to adverse effects on listed species can be resolved through early coordination. When managed species may be adversely affected by the proposed action, EFH issues should be discussed in addition to the ESA concerns. When an agency requests information on the presence of EFH in a particular location, that agency should be informed of the presence of listed species or critical habitat, if applicable, and vice-versa. NMFS regions may wish to develop joint information packages to address both ESA and EFH resources.
Informal consultation occurs more frequently than formal consultation under ESA. Through informal consultation, projects that would have an adverse effect as proposed can be altered to avoid adverse effects on listed species or critical habitat. A determination to conduct an EFH consultation does not automatically trigger the need to conduct an ESA section 7 formal consultation. The threshold for an EFH consultation is "may adversely affect," whereas the threshold for a formal section 7 consultation is "likely to adversely affect." A formal section 7 consultation should be conducted only when it is determined that the Federal action is likely to adversely affect a listed species. In those cases, EFH consultation can be conducted together with the formal consultation process (see next section).
Informal consultation processes vary among NMFS regions, so use of these processes for EFH consultation may also vary. As an example, the NMFS Northeast Region has a standard informal ESA consultation process that could be used for EFH consultation:
1) Notification - Notification could occur when the Federal agency sends a Biological Assessment (BA) or a letter requesting ESA consultation. It could also occur earlier, when an agency requests a list of threatened or endangered species. The agency should clearly state that it is consulting pursuant to the EFH provisions of the MSFCMA.
2) EFH Assessment - An EFH Assessment could be included in the BA or the letter that explains the proposed action and its effects. The BA must have a separate section on EFH or point out where the EFH Assessment information is included.
3) EFH conservation recommendations - EFH recommendations could be included in the letter from NMFS saying that either the project is not likely to adversely affect listed species, or that it is likely to adversely affect listed species and formal consultation is needed. General habitat concerns are generally included in this letter; the EFH recommendations would have to be clearly labeled as such.
4) Agency response - Within 30 days of receiving NMFS' recommendations, the Federal agency sends a preliminary response stating that the agency has received NMFS' EFH conservation recommendations, will consider them fully, has not yet made a decision on the project, but will respond to NMFS' EFH conservation recommendations fully when a decision is made, in approximately ## days. The agency then responds fully in a detailed letter provided to NMFS at least 10 days before final approval of the action. If the agency makes a decision within 30 days of the agency receiving the NMFS recommendations, the preliminary letter is not needed.
In three of the five NMFS regions, ESA formal consultation is currently finalized by the NMFS HQ Protected Resources Office, rather than in the region. However, since all Biological Opinions (BOs) (including those finalized at HQ) are currently drafted in the Regions, there is an opportunity to combine EFH consultation and ESA formal consultations:
1) Notification - Notification occurs when the agency provides a BA, or when the agency requests consultation. The agency should clearly state that it is consulting pursuant to the EFH provisions of the MSFCMA.
2) EFH Assessment - An assessment of impact on EFH should be included in the BA or in the information required to initiate formal ESA consultation, in a separate section entitled "EFH." Distinctions between ESA "critical habitat" and EFH should be clear.
3) EFH conservation recommendations - EFH recommendations should be sent to the Federal agency along with the BO, but they should be kept separate (i.e., NMFS could send a two-part document with the BO in part 1 and the EFH recommendations in part 2). Distinctions between reasonable and prudent measures, or other ESA components of the BO, and EFH recommendations should be made clear. In particular, EFH conservation recommendations should not be confused with conservation recommendations made under section 7(a)(1) of ESA.
4) Agency response - Within 30 days of receiving NMFS' EFH conservation recommendations, the Federal agency sends a preliminary response stating that the agency has received NMFS' recommendations, will consider them fully, has not yet made a decision on the project, but will respond to NMFS' EFH conservation recommendations fully when a decision is made, in approximately ## days. The agency then responds fully in a detailed letter provided to NMFS 10 at least days before final approval of the action. If the agency makes a decision within 30 days of the agency receiving the NMFS recommendations, the preliminary letter is not needed.
Section 10(a)(1)(A) permits are issued to Federal and non-Federal entities by NMFS for activities involving take of listed species otherwise prohibited by section 9 if such taking is for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations. Section 10(a)(1)(B) permits are issued to non-Federal entities for any other activities involving take of listed species otherwise prohibited by section 9 if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. NMFS' issuance of both a section 10(a)1(A) and section 10(a)1(B) permit are Federal actions subject to section 7 of the ESA and NEPA. However, NMFS's issuance of section 10(a)(1)(A) permits for activities other than hatcheries are categorically excluded under NOAA's NEPA implementing regulations. At present, all section 10(a)1(A) permits and non-salmonid section 10(a)1(B) permits are issued from NMFS HQ.
Section 10(a)2(A) requires applicants for a section 10(a)1(B) incidental take permit to submit a "conservation plan" - referred to as a Habitat Conservation Plan or HCP. NMFS approves HCPs in a process that involves both NEPA and the ESA section 7 consultation process. Ideally, Essential Fish Habitat concerns for listed and non-listed species should be identified during the HCP development phase when the applicant's proposed activity is being integrated with listed species protection needs and early section 7 consultation is in progress. This phase is typically conducted by the applicant with technical assistance from NMFS and ends when a "complete application package" is submitted. If the applicant does not agree to include non-listed species in the HCP, non-listed species must still be addressed in NMFS's NEPA analysis supporting issuance of the section 10 permit.
Since EFH Consultations are NMFS's responsibility (not the applicant's), and both listed and non-listed species may be involved, conservation measures should be submitted during the NEPA public comment period, rather than waiting for the section 7 consultation process to conclude. If NMFS EFH recommendations for species that are also listed under the ESA are adopted and incorporated into the proposed action for which an ESA section 7 consultation is performed, those recommendations may be enforced through ESA in that any deviation from them would trigger re-initiation of ESA consultation. To comply with the response requirement of the MSFCMA, NMFS should respond to the record at least 10 days before issuance of the section 10 permit.
Recovery Plans for listed species are sent out for public comment in a draft form and then finalized. Although EFH consultation could occur during the public comment period, coordination between regional PR and HC staff during development of the draft Recovery Plan is preferable. If PR staff determine that the Recovery Plan may have an adverse effect on EFH, a preliminary draft of the Recovery Plan should be sent to HC staff, along with the information required for an EFH Assessment. HC staff should then provide EFH recommendations on the preliminary draft, to which PR should respond.
Fish and Wildlife Coordination Act/Clean Water Act/Rivers and Harbors Act
Individual Permits:
Many of NMFS's concerns with respect to fish habitat are currently addressed through commenting, pursuant to the Fish and Wildlife Coordination Act, on Clean Water Act (CWA) section 404 / Rivers and Harbors Act (RHA) section 10 permits issued by the Army Corps of Engineers(2) (ACOE). Although this process includes most of the essential elements of EFH consultation, the ACOE public notices generally contain little or no information on the impacts of the proposed activity because ACOE staff rely on agency input and public comment to develop that information. Therefore, to use the existing FWCA/CWA/RHA process for EFH consultation, NMFS staff must meet with ACOE staff to discuss the information needs of EFH consultation. In discussions at the District/region level, the ACOE and NMFS should discuss the information needs for EFH Assessments, and the project types likely to require expanded consultation (i.e., substantial adverse effects on EFH). It is recommended that for those projects requiring only abbreviated consultation, the public notice should include brief information on EFH and impacts. For those projects requiring expanded consultation, the ACOE should provide NMFS with a more detailed EFH Assessment.
Just as the ACOE makes the initial determination of whether or not a proposed project "may adversely affect" EFH, the ACOE should also make the initial determination of whether abbreviated or expanded consultation is appropriate. However, if NMFS believes that expanded consultation is required for a particular project, NMFS should inform the ACOE of this conclusion at the earliest opportunity. The process for using the ACOE public notice process for CWA/RHA permits to conduct EFH consultation is:
1) Notification - Notification occurs when NMFS receives a public notice from the ACOE on the project.
2) EFH Assessment -
a) For those projects that require abbreviated consultation, the ACOE will put a brief EFH Assessment in the public notice (e.g, "This project will fill 5.3 acres of EFH for juvenile summer flounder. Loss of this nursery habitat may adversely affect summer flounder, but the ACOE has made a preliminary determination that the adverse effect on EFH will not be substantial.")
b) For those projects that the ACOE determines require expanded consultation, the ACOE will provide NMFS with a detailed EFH Assessment. This Assessment may be a separate document or it may be a component of another document, such as a draft Statement of Findings (SOF) or draft EA, as long as the EFH Assessment is clearly identified. The EFH Assessment will be provided to NMFS in a time frame sufficient to allow NMFS to develop EFH conservation recommendations (generally 30 days, but more or less time may be needed depending on the complexity of the project).
c) If, upon receiving a public notice (or in pre-application consultation), NMFS concludes that a project has the potential for substantial adverse impacts on EFH, NMFS will so inform the ACOE and request that the ACOE conduct expanded EFH consultation and provide a detailed EFH Assessment. This request may occur after ACOE has initiated abbreviated EFH consultation, or before any EFH consultation has occurred. If a public comment period for the project has already begun, NMFS may request an extension of the comment period (under Part II. 4 of the 404(q) MOA with Army) to allow time for the ACOE to provide the EFH Assessment, and for NMFS to develop EFH conservation recommendations. If the ACOE does not agree to conduct expanded consultation, NMFS will provide EFH conservation recommendations based on whatever information has been provided.
3) EFH Conservation Recommendations - NMFS provides EFH conservation recommendations as NMFS comments on the public notice, clearly labeled as such.
4) Response - The ACOE responds to NMFS EFH conservation recommendations in either a letter or a revised SOF or EA, at least 10 days before the permit is issued. If the ACOE will not be making a decision within 30 days of receiving NMFS recommendations, the ACOE sends a preliminary response within 30 days stating that the ACOE has received NMFS's EFH recommendations, will consider them fully, has not yet made a decision on the project, but will respond to NMFS EFH recommendations fully when a decision is made in approximately ## days.
General Permits (State Programmatic, Regional, or Nationwide)
General permits usually authorize, after very short comment periods, actions that should have minimal adverse impact, both individually and cumulatively. In some cases a General Concurrence or Programmatic Consultation is appropriate for actions authorized by those permits. In other cases, abbreviated consultation might be appropriate, particularly with state programmatic general permits, if the ACOE and NMFS can agree on acceptable time frames. In that case, the process would be similar to that for individual permits.
Traditional Licensing Process:
When FERC uses its traditional (re)licensing procedures, it usually takes approximately three years for the applicant to work with NMFS and other interested entities on gathering information and conducting studies needed for NMFS to develop its Federal Power Act (FPA) section 10(j) recommendations for fish protection, mitigation, and enhancement and section 18 fishway prescriptions. At the end of this time, the applicant submits its application to FERC for a new license. The application includes an Exhibit E containing environmental information about the project. Once the application is complete, FERC issues a public notice that the application is ready for environmental analysis (REA). NMFS then has 60 days to submit its recommendations and prescriptions. FERC includes NMFS's recommendations and prescriptions in its NEPA analysis. FERC's final license decision is issued after the NEPA document is finalized and takes the form of a FERC order.
Steps for adding EFH consultation to FERC's existing process:
1. Notification - Notification to NMFS would occur at the time FERC issues an REA notice. The notice should include a statement that FERC is initiating EFH consultation.
2. EFH Assessment - Most of the information needed for an EFH Assessment would be included in the applicant's Exhibit E and should be identified in a distinct "EFH" section of Exhibit E. FERC should specifically state in their notice that this is the EFH Assessment and reference appropriate material in Exhibit E. FERC needs to ensure that Exhibit E does contain all the necessary information and if not, provide supplemental information to NMFS. FERC must also ensure that NMFS receives the EFH Assessment in a timely fashion.
3. EFH conservation recommendations - NMFS will provide EFH conservation recommendations along with section 10(j) recommendations and section 18 fishway prescriptions. NMFS should clearly label the EFH recommendations as such and be sure to distinguish them from the 10(j) recommendations and section 18 prescriptions. If they are the same, then NMFS should say that explicitly.
4. Agency response - FERC responds to NMFS EFH recommendations in a detailed letter during the section 10(j) coordination process or in a separate letter at least 10 days before they issue the order. Since FERC ordinarily will not make a decision within 30 days of receiving NMFS recommendations, FERC should send a preliminary response within 30 days stating that they have received our recommendations, will consider them fully, have not yet made a decision on the project, but will respond to our recommendations fully when they have made a decision in ## days. According to FERC's regulations, parties have 30 days to appeal a license order by requesting rehearing. NMFS could include an appeal of FERC's treatment of our EFH recommendations, if warranted.
Alternative Procedures (also known as "applicant prepared EA" or "the collaborative process")
FERC recently revised its regulations governing applications for licenses and exemptions to offer an alternative process whereby the pre-filing consultation process and environmental review process are combined. This process involves formation of a group of interested participants, typically made up of FERC, Federal and state resource agencies, Indian tribes, the public, and the applicant. This group operates on a consensus basis and works together to scope the issues, determine necessary studies, evaluate the information, and develop the draft NEPA document. This document replaces Exhibit E in the application and FERC does not issue an REA notice. NMFS submits its preliminary recommendations and prescriptions during the alternative process.
Steps for adding EFH consultation to FERC's alternative process:
1. FERC will notify NMFS once FERC has enough information to be able to describe the project, effects on the managed species and its EFH, and mitigation. This will be done near the end of the alternative process, but before, or concurrent with, NMFS's requirement to provide preliminary 10(j) recommendations and prescriptions.
2. - 4. The steps are the same as for the traditional licensing process.
(2). In some NMFS regions, the same process is used for projects authorized under section 103 of the Marine Protection, Research, and Sanctuaries Act.
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