previous section Table of Contents
ESSENTIAL FISH HABITAT CONSULTATION GUIDANCE
3.0 Programmatic EFH Consultations
Background
Under section 305(b)(2) of the MSFCMA, Federal agencies are required to consult with the Secretary of Commerce on any action that may adversely affect essential fish habitat (EFH). Given the national scope of EFH, and the numerous threats to EFH, the Federal actions that will trigger EFH consultation encompass a wide range of programs and agencies.
Use of programmatic consultations is a mechanism for implementing the EFH consultation requirements efficiently and effectively by including many individual actions that may adversely affect EFH in one consultation. Section 600.920(a)(2) of the EFH regulations describes programmatic consultation as appropriate if sufficient information is available at a programmatic level to develop EFH conservation recommendations that will address all reasonably foreseeable adverse impacts to EFH.
Programmatic consultations allow NMFS and other Federal agencies to take a broad, comprehensive look at Federal programs, their potential or actual adverse effects on EFH, and appropriate conservation recommendations. Some examples of programs that would likely be appropriate for a programmatic EFH consultation are: funding programs, such as grants by Federal agencies to states to carry out activities that could adversely affect EFH; U.S. Forest Service forest plans; and Minerals Management Service regional 5-year plans. The goal of a programmatic consultation should be to address as many adverse effects as possible through programmatic EFH conservation recommendations. Thus, a programmatic consultation results in a letter from NMFS to the Federal agency containing programmatic EFH conservation recommendations, as well as identification of any adverse impacts that could not be addressed by the programmatic EFH conservation recommendations (additional components of a programmatic consultation letter are addressed below). Any adverse effect that cannot be addressed through programmatic EFH conservation recommendations will have to be addressed through individual consultation (preferably by using existing procedures) or a General Concurrence.
Programmatic consultations may occur at a headquarters or regional level. It is essential that offices conducting programmatic consultations inform other NMFS offices (i.e., Habitat Divisions in other regions and at Headquarters) that these consultations are occurring, in case the results of the programmatic consultation could affect other regions or national policy.
Any size program may be addressed through a programmatic consultation, depending on the nature of the actions conducted in the program. Whether a particular program should be subdivided, or whether some programs should be lumped together for the consultation, should be determined jointly by NMFS and the Federal action agency, keeping in mind the goal of developing programmatic EFH conservation recommendations. Priority should be given to those programs or actions within programs for which programmatic conservation recommendations are most appropriate, e.g., for which a substantial portion of the adverse effects can be addressed with programmatic EFH conservation recommendations, without information on a specific site or project. If a substantial number of the agency's actions would require additional EFH conservation recommendations on a case-by-case basis, the programmatic consultation should be restricted to those actions for which programmatic EFH conservation recommendations are appropriate.
All actions that are part of the program (or specific part of a program) should be addressed in the consultation, including reasonably foreseeable but unplanned actions (e.g., oil spills or other accidental discharges) and actions that are authorized but may not be reported to the action agency (e.g., non-reporting activities covered by general permits).
A programmatic consultation may be initiated by a Federal action agency or by NMFS, on any Federal program that will require EFH consultation, and for which either agency thinks programmatic consultation might be the best manner of accomplishing that consultation. To initiate programmatic consultation, the Federal agency should send NMFS an EFH Assessment that describes the specific activities, the EFH and managed species affected by those activities, and the nature of those effects. Although a programmatic EFH Assessment will be broader in scope and less specific than an EFH Assessment for an individual action, the essential elements of an EFH Assessment should still be addressed in as much detail as is appropriate. NMFS may work with the Federal agency in the development of the EFH Assessment.
After receiving the programmatic EFH Assessment, NMFS develops programmatic EFH conservation recommendations. NMFS may work with the Federal agency in developing these recommendations. When the EFH conservation recommendations are final, NMFS must provide them to the Federal agency in writing. NMFS may also want to include or attach the EFH Assessment to provide interested parties who may receive copies of the EFH conservation recommendations (such as the Councils), relevant information about the program. Once the action agency receives the programmatic EFH consultation recommendations, that agency must respond as required by section 305(b)(4)(B) of the Magnuson-Stevens Act.
For some programs it may be possible to specify the affected EFH, e.g., in U.S. Forest Service forest plans. For other programs, particularly funding programs, it may not be possible to identify specific locations of affected EFH. In the latter case, the most appropriate approach may be to describe the scope of the program with respect to the scope of EFH, and develop a table that correlates program activities to EFH amendments, such as the example below. Other approaches may be more appropriate depending on the information available.
Example - EFH affected by Funding Program XXZZ
Council/species Subtidal vegetated Subtidal unvegetated Intertidal vegetated Intertidal unvegetated Intertidal or subtidal shellfish beds Council 1 - species or plan 1 X X X species or plan 2 X X Council 2 - species or plan 1 X X X X Depending on the nature of the program (a specific land management plan vs a funding program), effects on EFH may be difficult to quantify at a programmatic level. At a minimum, effects on EFH should be described generally and the following information included: number of actions (actual or estimated); range of impact size; type of impacts, both direct and indirect; and any mandatory mitigation measures. If available, additional information should be included on the following: cumulative effects of the program; cumulative (of program and non-program) effects within watersheds; and effects on fish populations.
EFH Conservation Recommendations
Programmatic EFH conservation recommendations should be developed for as many identified adverse impacts as possible. Monitoring may also be considered a conservation recommendation. Some examples of programmatic EFH conservation recommendations follow:
Many Federal programs already include habitat conservation measures, in some cases developed in cooperation with NMFS. If the Federal agency already implements habitat conservation measures as part of the program, NMFS may adopt these measures as EFH conservation recommendations (in which case they should be specifically listed as EFH conservation recommendations). Programmatic EFH conservation recommendations may be characterized as requiring revision or augmentation during an individual consultation, if certain thresholds are exceeded (i.e., above a certain acreage, in certain habitats).
There are five potential outcomes of a programmatic consultation:
Since programmatic consultations will often cover a number of types of activities, any combination of these outcomes may result from a programmatic consultation.
If site- or project-specific information is required to adequately address adverse impacts, the programmatic consultation may end with the conclusion that individual consultations are needed for some or all of the Federal actions in the program. If existing processes may be used to accomplish the individual consultations, NMFS should work with the Federal action agency to develop a "finding" (see section on Use of Existing Processes"). If any of the actions in the program have minimal effects, both individually and cumulatively, a General Concurrence should be developed for those actions. If it is determined that no adverse effect will occur, the programmatic consultation should state that conclusion. To comply with the MSFCMA, the conclusions reached as a result of a programmatic consultation must be documented, even if no programmatic EFH conservation recommendations are developed.
The document containing NMFS EFH conservation recommendations for a programmatic consultation should contain:
The description of the program, affected EFH, and adverse effects on EFH should be addressed by the action agency's programmatic EFH Assessment. The NMFS document containing the EFH conservation recommendations should briefly summarize the EFH Assessment, and may contain the entire EFH Assessment as an attachment. The programmatic consultation may contain other attachments such as a General Concurrence or a finding, if they were developed as a result of the programmatic consultation.
As required by section 305(b)(4)(b) of the MSFCMA, the action agency must respond within 30 days once the programmatic EFH conservation recommendations are received. If the action agency adopts the NMFS EFH conservation recommendations as a requirement of the program, no further EFH consultation is required (except for those cases identified in the consultation document where individual consultation has been specified).
If the action agency does not adopt the programmatic EFH conservation recommendations as a requirement of their program, one of two options may be pursued: the agency and NMFS may conduct an individual EFH consultation on each of the program actions; or the agency may agree to consider adopting the programmatic conservation recommendations on a case-by-case basis. If the agency decides on a case-by-case basis whether or not to implement the EFH conservation recommendations, NMFS may include as an EFH conservation recommendations that any time the agency does not implement one of the programmatic EFH consultation recommendations for a specific project, that agency should conduct an individual EFH consultation. This would allow NMFS the opportunity to propose alternative EFH conservation recommendations when the programmatic recommendations are not implemented. Alternatively, if individual EFH consultation probably would not result in EFH conservation recommendations that are different from those made programmatically, NMFS may simply require the action agency to provide NMFS with a response letter for each of the program actions. This response letter would indicate whether or not the programmatic EFH conservation recommendations were being implemented for individual program actions.
The action agency should be advised to contact NMFS if the program changes, so that the conservation recommendations can be revised as necessary. NMFS should contact the action agency if new information becomes available or if environmental conditions change such that revised or additional EFH conservation recommendations are needed. Even if an agency does not agree to reinitiate consultation in light of changes or new information, NMFS must provide additional EFH conservation recommendations, to which the agency must respond, if NMFS determines that there would be an adverse effect on EFH.
The action agency should send NMFS a report (generally annually, but other time periods may also be appropriate) listing actions authorized under the program. The format and schedule of the report should be specified in the consultation document.
NMFS should review all programmatic EFH conservation recommendations periodically, at least once every five years, to ensure that they are based on the best scientific information. NMFS may want to set an expiration date of five years or less for a programmatic consultation to ensure that it is reviewed and that the EFH conservation recommendations are reevaluated. NMFS should also review all programmatic consultations if EFH designations are changed in areas where activities covered by the programmatic consultation occur.
top next section Table of Contents