Consultation Guidance: Executive Summary

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ESSENTIAL FISH HABITAT CONSULTATION GUIDANCE

Executive Summary

Legislative Mandate:

The consultation requirements of §305(b) of the Magnuson-Stevens Act (16 U.S.C. 1855(b)) provide that:

Federal agencies must consult with the Secretary on all actions, or proposed actions, authorized, funded, or undertaken by the agency, that may adversely affect EFH;
the Secretary shall provide recommendations (which may include measures to avoid, minimize, mitigate, or otherwise offset adverse effects on EFH) to conserve EFH to Federal or state agencies for activities that would adversely affect EHF. [The consultation requirements of the Magnuson-Stevens Act differ for Federal and state agencies: only Federal agencies have a mandatory statutory requirement to consult with NMFS; as noted above, they must consult on all actions that may adversely affect EFH. However, NMFS must provide EFH conservation recommendations to state agencies if NMFS receives information about a state activity that would adversely affect EFH. Each NMFS Region should establish procedures for identifying actions or proposed actions authorized, funded, or undertaken by state agencies that would adversely affect EFH, and for identifying the most appropriate method for providing EFH conservation recommendations to the state agency.];
the Federal action agency must provide a detailed response in writing to NMFS and the appropriate Council within 30 days after receiving an EFH conservation recommendation (or at least 10 days prior to final approval of the action, if a decision by the Federal agency is required in less than 30 days) [The response must include a description of measures proposed by the agency for avoiding, mitigating, or offsetting the impact of the activity on EFH. In the case of a response that is inconsistent with the recommendations of NMFS, the Federal action agency must explain its reasons for not following the recommendations, including the scientific justification for any disagreements with NMFS over the anticipated effects of the proposed action and the measures needed to avoid, minimize, mitigate, or offset such effects. State agencies are not required to respond to EFH conservation recommendations.]

EFH Regulations

Regulations for implementing the EFH coordination and consultation provisions of the MSFCMA are at 50 CFR 600.905 - 930. These regulations provide definitions, procedures for using existing consultation processes, procedures for conducting individual EFH consultation when an existing process is not available, and alternatives to individual EFH consultation. The EFH regulations also address coordination with the Fishery Management Councils, NMFS EFH conservation recommendations to Federal and state agencies, and Council comments and recommendations to Federal and state agencies. These regulations are NMFS's provide required procedures for NMFS and Federal agencies to meet the EFH consultation statutory requirements. Thus, much of the information in this consultation guidance is additional explanation of the EFH regulations.

Options for Meeting EFH Consultation Requirements

NMFS has defined five approaches to meet the EFH consultation requirements: use of existing procedures, general concurrences, programmatic consultations, abbreviated consultation, and expanded consultations.

Use of Existing Procedures. Consultation and coordination under the Magnuson-Stevens Act should be consolidated with interagency coordination procedures required by other statutes, such as the National Environmental Policy Act, Fish and Wildlife Coordination Act, Endangered Species Act, and Federal Power Act, to reduce duplication and improve efficiency. The use of existing environmental coordination and/or review procedures to meet the EFH consultation requirements is the preferred approach for EFH consultations. For NMFS and a Federal action agency to use an existing process for EFH consultation, NMFS must make a finding that the existing process fulfills the requirements of the MSFCMA and EFH regulations.

General Concurrence. A general concurrence identifies specific types of Federal actions that may adversely affect EFH, but for which no further consultation will generally be required. In order to issue a general concurrence, NMFS must determine, after coordinating with the appropriate Fishery Management Council(s) and reviewing public comment, that the actions are 1) similar in nature and similar in their impact on EFH, 2) do not cause greater than minimal adverse effects on EFH when implemented individually, and 3) do not cause greater than minimal cumulative adverse effects on EFH. General concurrences may be national or regional in scope.

A Federal agency may request a General Concurrence for a category of its actions by providing NMFS with a written description of the nature and approximate number (annually or by some other appropriate time frame) of the proposed actions, an analysis of the effects of the actions on EFH and associated species and their life history stages, including cumulative effects, and the Federal agency's conclusions regarding the magnitude of such effects. NMFS may also initiate development of a General Concurrence. If NMFS, after coordinating with the appropriate Fishery Management Council(s), determines that a General Concurrence is appropriate, it will provide the Federal agency with a written statement that further consultation is not required for activities specified in the General Concurrence.

Programmatic Consultations. A programmatic consultation allows NMFS and a Federal action agency to consult on, and NMFS to provide EFH conservation recommendations for, a potentially large number of individual actions that may adversely affect EFH. Programmatic consultation will generally be the most appropriate option to address funding programs, large-scale planning efforts, and other instances when a Federal agency or NMFS want to evaluate the effects on EFH of an entire program or parts of a program. Programmatic consultation should be used to develop programmatic EFH conservation recommendations. A programmatic consultation may also be used as a screening process to determine which program actions qualify for a General Concurrence, which actions do not require any EFH consultation, which actions can be addressed with programmatic EFH conservation recommendations and, for those actions that do require individual EFH consultation, what process should be used to most efficiently accomplish EFH consultation.

A Federal agency may request programmatic consultation by providing NMFS with a written description of the program, including the nature and approximate number (annually or by some other appropriate time frame) of the actions, an analysis of the effects of the actions on EFH and associated species and their life history stages, including cumulative effects, and the Federal agency's conclusions regarding the magnitude of such effects. NMFS may also initiate a programmatic consultation by requesting such information from the agency. It is important that NMFS work with the Federal action agency in determining the extent of the activities covered by a programmatic consultation. In many cases it may be beneficial for NMFS to involve the Federal agency in developing the programmatic EFH conservation recommendations.

Because effects on EFH will often depend on exact location or design information, programmatic consultation may not obviate the need for individual consultation on actions in the program. However, programmatic EFH conservation recommendations can give an agency early and consistent guidance on NMFS concerns and proposed solutions. The appropriate level for programmatic consultation will depend on the level at which the program is developed, which may be at either headquarters or the regions.

Expanded and Abbreviated Consultation

When no other methods can be used for EFH consultation, Federal agencies must use the abbreviated and expanded consultation processes outlined in the EFH regulations at 50 CFR 600.920. These processes include notification to NMFS of actions that may adversely affect EFH, preparation of an EFH Assessment, and development of EFH conservation recommendations. They can be used by any Federal agency to conduct EFH consultation with NMFS on actions that may adversely affect EFH.

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