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ESSENTIAL FISH HABITAT CONSULTATION GUIDANCE Background
Section 305(b)(2) of the MSFCMA requires each Federal agency to consult with the Secretary of Commerce regarding any action or proposed action authorized, funded, or undertaken by the agency that may adversely affect EFH. The General Concurrence process is used to identify specific types of Federal actions that may adversely affect EFH, but for which no further consultation is generally required because the NMFS has determined that the identified types of actions will likely result in no more than minimal adverse effects to EFH individually and/or cumulatively. The development of General Concurrences must adhere to specific regulatory criteria, which are codified at 50 CFR 600.920(f).
General Concurrences may be developed at either the national or regional level. They should be used for categories of Federal actions that are similar in nature and similar in their impact on EFH, and that will not cause greater than minimal impacts on EFH, either individually or cumulatively. A General Concurrence is comparable to a categorical exclusion under the National Environmental Policy Act in that it dispenses with the need for more formal environmental review for identified types of actions with minimal effect that can be evaluated as a group and for which NMFS can conclude, based on an evaluation of potential effects to EFH, that case-by-case consultation is not necessary. Actions that qualify for a General Concurrence would not cause more than minimal adverse effects to EFH, and therefore do not require NMFS to develop separate EFH conservation recommendations for individual actions pursuant to Section 305(b)(4) of the Magnuson-Stevens Act. However, EFH conservation recommendations may be provided as part of the General Concurrences in cases where actions would normally cause more than minimal effect but, if modified, e.g. a seasonal restriction, would not cause more than a minimal effect. All General Concurrences must include a tracking provision to ensure that cumulative adverse effects on EFH are no more than minimal.
Process for Developing General Concurrences
A Federal agency may request that NMFS develop a General Concurrence for specific types of agency actions, or NMFS may develop a General Concurrence on its own initiative. If a Federal agency requests a General Concurrence, the agency should provide NMFS with a written description of the nature and approximate number of the proposed actions, an analysis of the effects of the actions on EFH, including cumulative effects, and the Federal agency's conclusions regarding the magnitude of such effects.
Whether the development of a General Concurrence is initiated by another Federal agency or by NMFS, early coordination between NMFS and the action agency will help to ensure that the General Concurrence addresses appropriate types of actions and contains workable conditions. NMFS personnel should work with the action agency to identify candidate activity categories for General Concurrences and to develop suitable bounds or thresholds that enable NMFS to differentiate minimal impact actions from actions that warrant more detailed EFH consultation.
If NMFS determines that a category of actions meets the criteria in 50 CFR 600.920(f)(2), NMFS must consult with the appropriate fishery management council(s) before providing a General Concurrence to the Federal agency. Before making a final decision on a General Concurrence, NMFS must provide an opportunity for public review of the proposed General Concurrence either through the appropriate council(s) or other appropriate method. If NMFS determines that the actions proposed by a Federal agency do not meet the regulatory criteria for a General Concurrence, NMFS should notify the Federal agency in writing that a General Concurrence will not be issued and that EFH consultation may be required for each action individually. Such individual consultations may use existing environmental review procedures (rather than the procedures for abbreviated and expanded consultation described in 50 CFR 600.920(h) and (i)), if NMFS has issued a finding that such processes are sufficient to address the EFH consultation requirements. Another option for handling consultations may be use of a programmatic consultation.
Criteria for General Concurrences
NMFS must determine that the actions to be covered by a General Concurrence meet these three criteria: (A) The actions must be similar in nature and similar in their impact on EFH; (B) The actions must not cause greater than minimal adverse effects on EFH when implemented individually; and (C) The actions must not cause greater than minimal cumulative adverse effects on EFH. The following guidelines should be used by NMFS personnel to determine whether proposed actions meet the criteria for a General Concurrence:
NMFS may also determine that certain categories of Federal actions meet the criteria in 50 CFR 600.920(f)(2) contingent upon project size limitations, seasonal restrictions, or other conditions necessary to ensure that the effects on EFH are minimal individually and cumulatively. In such cases, these conditions must be stated explicitly in the General Concurrence.
If NMFS is considering the development of a General Concurrence for actions affecting a Habitat Area of Particular Concern, NMFS personnel should apply a higher level of scrutiny to determine whether the actions may cause greater than minimal adverse effects on EFH individually and/or cumulatively.
NMFS may include a "kick-out" provision in a General Concurrence that would require notification of NMFS for actions that may result in more than minimal impact, and for which further consultation may be required.
Format of General Concurrences
A General Concurrence must be a written document, signed by the appropriate NMFS official, that specifically identifies the Federal actions covered by the General Concurrence and includes NMFS' determination that the types of actions covered by the General Concurrence meet the applicable regulatory criteria; therefore, further consultation for individual actions covered by the General Concurrence is not required. Typically the General Concurrence will take the form of a letter from the NMFS Regional Administrator to the appropriate official in another Federal agency.
General Concurrences should include the following information: a description of the types of actions covered; the approximate number, e.g., annually, of individual actions that would occur; a list of the specific actions (if known); the species and life stages for which EFH may be affected; a conclusion that the actions meet the criteria in 50 CFR 600.920(f)(2); and any applicable requirements for notifying NMFS of individual actions or pursuing further consultation pursuant to 50 CFR 600.920(f)(4). If a General Concurrence includes a requirement for the Federal agency to notify NMFS of individual actions, the General Concurrence should state that after receiving such notification, NMFS may require further consultation on a case-by-case basis and/or may provide additional EFH conservation recommendations to the agency, if warranted. Finally, each General Concurrence should include a statement that NMFS will periodically review its findings of General Concurrence and may revise or revoke a General Concurrence if new information indicates that the covered actions are having more than minimal adverse effects on EFH. The General Concurrence should state that NMFS will notify the Federal agency as early as possible if any such modifications become necessary. The General Concurrence must include a statement regarding how actions qualifying for the General Concurrence will be tracked.
Actions qualifying for a General Concurrence must be tracked to ensure that their cumulative effects are no more than minimal. In most cases, tracking should be the responsibility of the Federal action agency because the information is most readily available to that agency. However, NMFS may agree to track actions covered by a General Concurrence if the General Concurrence includes a requirement for the agency to notify NMFS of individual actions. Tracking should include a tally of the number of actions, amount of habitat adversely affected, type of habitat adversely affected, and the baseline against which an assessment of cumulative impacts can be made. The agency responsible for tracking such actions should make the information available to NMFS, the affected Council(s), and the public on an annual basis; the process for doing so should be included in the General Concurrence.
NMFS should contact the action agency if new information becomes available or if environmental conditions change such that the covered actions are having more than minimal adverse effects on EFH. NMFS should review all each General Concurrences periodically, at least once every five years, to ensure that they are up to date. NMFS may want to set an expiration date of five years or less for a General Concurrence to ensure that it is reviewed and that the effects on EFH are reevaluated. NMFS should also review all General Concurrences if new EFH is designated in areas where General Concurrence activities occur.
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