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Fish Habitat Assessment (12-FD-i)

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), as amended by the Sustainable Fisheries Act of 1996, established procedures to require federal agencies to identify, conserve, and enhance Essential Fish Habitat (EFH) for species regulated under a Fisheries Management Plan (FMP). Under the Magnuson-Stevens Act, federal agencies must consult with the National Oceanic and Atmospheric Administration (NOAA) on all “federal actions” including, all actions proposed, authorized, funded, or undertaken, that may adversely affect EFH (16 U.S.C. § 1855). The EFH Guidelines can be found at 50 CFR 600.05 to 600.930. The EFH Guidelines outline the process for federal agencies, NOAA, and the Fishery Management Councils to satisfy the EFH Consultation requirement under Section 305(b)(2)-(4) of the Magnuson-Stevens Act. As part of the EFH Consultation process, the federal agencies must prepare a written EFH Assessment (EFHA) describing the effects of that action on EFH (50 CFR 600.920(e)(1)).



Fish Habitat Assessment Process


12-FD-i.1 – Does the Proposed Federal Action Have the Potential to Cause Substantial Adverse Effects on Essential Fish Habitat (EFH)?

Section 305(b)(2) of the Magnuson-Stevens Act requires federal agencies to consult with National Oceanic and Atmospheric Administration (NOAA) on all “federal actions” including, all actions proposed, authorized, funded, or undertaken, that may adversely affect EFH (16 U.S.C. § 1855). As part of the consultation process, the federal decision-making agency (lead agency) must prepare and submit an EFHA containing a written assessment of the potential effects of the proposed action on the EFH (50 CFR § 600.920(e)(1)). A description of the EFHA preparation process begins at 12-FD-i.9 below.

EFH provisions are established by Regional Fishery Management Councils as part of Fishery Management Plans (FMPs). The Magnuson-Stevens Act established eight Regional Fishery Management Councils (16 U.S.C. § 1852(a)(1)). Each Council is required to create an FMP for each fishery under its authority that requires conservation and management (16 U.S.C. § 1852(h)(1)). The detailed requirements for the contents of Fishery Management Plans can be found at 50 CFR § 600.815. Among other provisions, FMPs contain EFH provisions that include a description and identification of the EFH, adverse effects on EFH, and actions to conserve and enhance EFH (50 CFR § 600.805(a)). EFH are “those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity” (16 U.S.C. 1802(10)).

Adverse effect means “any impact that reduces quality and/or quantity of EFH.” Adverse effects may include, “direct or indirect physical, chemical, or biological alterations of the waters or substrate and loss of, or injury to, benthic organisms, prey species and their habitat, and other ecosystem components, if such modifications reduce the quality and/or quantity of EFH.” Moreover, adverse effects “may result from actions occurring within EFH or outside of EFH and may include site-specific or habitat-wide impacts, including individual, cumulative, or synergistic consequences of actions.”

(50 CFR § 600.805(a))

12-FD-i.2 to 12-FD-i.3 – Has the Lead Agency Determined the Proposed Federal Action Will Not Adversely Affect EFH?

If the lead agency determines the proposed federal action will not adversely affect EFH, then the lead agency may continue with the proposed action without preparing an EFHA or completing the EFH consultation process. However, if NOAA determines the federal action has the potential to adversely affect EFH, then NOAA may request the lead agency to initiate EFH consultation.

(50 CFR § 600.920(a)).

12-FD-i.4 – Does the Federal Action Qualify for a General Concurrence (GC)?

If the proposed federal action does not have the potential to cause substantial adverse effects on EFH, then the action may qualify for a General Concurrence (GC) (50 CFR § 600.920(g)). If a federal action qualifies for a GC, then the lead agency does not need to complete an EFHA (50 CFR § 600.920(e)(1)).

Federal agencies may develop GCs to identify actions “for which no further consultation is generally required because […the actions] will likely result in no more than minimal adverse effects individually and cumulatively” (50 CFR § 600.920(g)(1)). For a federal action to qualify for the application of a GC, NOAA must determine that the action:

  • Is similar in nature and similar in impact on EFH;
  • Will not cause greater than minimal adverse effects on EFH when implemented individually; and
  • Will not cause greater than minimal cumulative adverse effects on EFH.

(50 CFR § 600.920(g)(2)(i)).

In addition, categories of federal actions may also qualify for GC if they are modified by appropriate conditions that ensure the actions will meet the criteria in 50 CFR § 600.920(g)(2)(i).

If the federal action does not qualify for application of a GC, then the lead agency will prepare an EFHA to analyze potential adverse effects on the EFH associated with the proposed federal action. In addition, the lead agency will be required to initiate consultation with NOAA.

(50 CFR § 600.920(a), (e)).

12-FD-i.5 to 12-FD-i.8 – Has NOAA Determined Actions Covered by the GC Could Result in More Than a Minimal Impact on EFH?

If NOAA has determined that the category of actions covered by a particular GC could result in more than a minimal impact on EFH, NOAA may require further consultation. Further consultation under a GC will be based on specific procedures set forth in the GC. NOAA must provide notice of its decision to the appropriate Council(s) and to the public.

(50 CFR § 600.920(g)(4), (5)).

If the federal action qualifies for application of a GC and no further consultation is required, then the lead agency may continue with the proposed action without preparing an EFHA or completing more detailed consultation with NOAA.

(50 CFR § 600.920(g)).

12-FD-i.9 to 12-FD-i.13 – Initiate Preparation of EFH Assessment (EFHA)

As an integral part of the interagency consultation process under the Magnuson-Stevens Act, lead agencies must prepare and submit to NOAA an EFHA containing a written assessment of the potential effects of their proposed action(s) on EFH (50 CFR § 600.920(e)(1)). EFHA must be based on the “best scientific information available regarding the effects of the action on EFH” (50 CFR § 600.920(d)). The level of detail should be commensurate with the complexity and magnitude of the potential adverse effects of the action (50 CFR § 600.920(e)(2)). While assessments for relatively simple actions involving minor adverse effect may be brief, assessments for actions posing more serious threat to EFH should be more detailed (50 CFR § 600.920(e)(2)).

All EFHAs must contain:

  • A description of the action;
  • An analysis of the potential adverse effects of the action on EFH and the managed species;
  • The Federal agency’s conclusions regarding the effects of the action on EFH; and
  • Proposed mitigation, if applicable.

(50 CFR § 600.920(e)(3)).

If appropriate, EFHA should also include:

  • The results of an on-site inspection to evaluate the habitat and the site-specific effects of the project;
  • The views of recognized experts on the habitat or species that may be affected;
  • A review of pertinent literature and related information;
  • An analysis of alternatives to the action. Such analysis should include alternatives that could avoid or minimize adverse effects on EFH; and
  • Other relevant information.

(50 CFR § 600.920(e)(4)).

Previously Prepared EFHA

EFHA may incorporate previously prepared EFHA if the proposed federal action is similar to a previous action for which the agency prepared an EFHA (50 CFR § 600.920(e)(1)). Similar actions are those that involve similar impacts, and occur in the same geographic area or similar ecological setting. The lead agency should incorporate the previous EFHA by reference and supplement it with any relevant and/or new project specific information.

(50 CFR § 600.920(e)(5)).

Habitat Areas of Particular Concern

EFHA should indicate whether the proposed action may adversely affect Habitat Areas of Particular Concern (HAPCs). HAPCs are areas identified by an FMP as areas of particular concern within an EFH. Actions that impact HAPCs will likely receive increased scrutiny by NOAA when developing conservation recommendations.

Identification of HAPCs is based on:

  • The importance of the ecological function provided by the habitat;
  • The extent to which the habitat is sensitive to human-induced environmental degradation;
  • Whether, and to what extent, development activities are, or will be, stressing the habitat type; and
  • The rarity of the habitat type.

(50 CFR § 600.815(8)).

12-FD-i.14 to 12-FD-i.15 – Is More Than One Agency Responsible for the Federal Action?

If more than one federal agency is responsible for a federal action, then the consultation may be fulfilled through a lead agency. The lead agency must notify NOAA in writing that it is representing one or more additional agencies.

(50 CFR § 600.920(b)).

12-FD-i.16 – Initiate Consultation with NOAA

The lead agency must initiate consultation with NOAA for all federal actions that have the potential to adversely affect EFHA (16 U.S.C. § 1855). In addition, consultation is required for renewals, reviews, or substantial revisions of actions if the renewal, review, or revision may adversely affect EFH (50 CFR § 600.920(a)(1)).

The lead agency may initially select the approach it will use to fulfill EFH Consultation requirements (50 CFR § 600.920(a)(2)). Selection of a particular approach for consultation should depend on the nature and scope of the actions that may adversely affect EFH. Consultation approaches include:

  • General Concurrence (GC);
  • Use of existing environmental review procedures (Integrated Consultation (IC));
  • Abbreviated Consultation (AC); and
  • Expanded Consultation (EC).

(50 CFR 600.920(a)(2)).

12-FD-i.17 - Does the Proposed Federal Action Have the Potential to Cause Substantial Adverse Effects on EFH?

If the proposed federal action does not have the potential to cause substantial adverse effects on EFH and there is not GC available, then the lead agency will initiate the Abbreviated Consultation process, detailed beginning at 12-FD-i.25. More involved consultation processes are discussed below and include, (1) Integrated Consultation; and (2) Expanded Consultation.

12-FD-i.18 to 12-FD-i.20 – Does the Lead Agency Wish to Integrate EFH Consultation with Existing Environmental Review?

Federal agencies may incorporate EFHA and EFH Consultation into existing environmental review processes such as those processes available under NEPA, the Fish and Wildlife Coordination Act, Clean Water Act, ESA, and Federal Power Act (50 CFR 600.920(f)). This practice is encouraged where it is appropriate and efficient to consolidate EFHA and EFH Consultation with existing interagency consultation, coordination, and environmental review procedures (50 CFR 600.920(f)(1)). For example, development of EFHA and EFH Consultation may be integrated with environmental review completed as part of the FERC licensing process.

Prior to utilizing Integrated Consultation, the lead agency must contact NOAA to discuss whether Integrated Consultation is appropriate (50 CFR 600.920(e)(3)). Integrated Consultation is subject to approval by NOAA and, as such, only after NOAA makes a finding that Integrated Consultation would meet EFH Consultation requirements should the agency initiate EFH Consultation as part of another environmental review process. (50 CFR 600.920(e)(3)). If EFHA is contained in another document, it must include all of the information required by 50 CFR 600.920(e)(3) and be clearly identified as an EFHA.

12-FD-i.21 to 12-FD-i.24 – Initiate Environmental Review Process

The lead agency may initiate environmental review, and integrate EFHA and EFH Consultation only after NOAA makes a finding that the existing review process satisfies EFH review requirements (50 CFR 600.920(e)(1)(iii), (e)(3)). As part of the existing environmental review notification process, the lead agency must provide NOAA with timely notification of actions that may adversely affect EFH (50 CFR 600.920(e)(1)(i)). Notification must include an assessment of the impacts of the proposed action on EFH and identify the section containing the assessment (50 CFR 600.920(e)(1)(ii)). The comment deadline for the existing environmental review process should be applied (50 CFR 600.920(e)(2)). In addition, Expanded Consultation procedures must be used for analyzing all proposed actions that have the potential to result in substantial adverse effects to EFH (50 CFR 600.920(i)).

12-FD-i.25 to 12-FD-i.29 – Initiate Abbreviated Consultation

Abbreviated Consultation expedites NOAA’s determination of whether and to what degree a proposed action has the potential to adversely affect EFH. If the lead agency determines the proposed federal action might adversely affect EFH but does not have the potential to cause substantial adverse effects on EFH and does not qualify for a GC, then the agency may initiate Abbreviated Consultation (50 CFR 600.920(h)(1)). The lead agency initiates AC by submitting a completed EFHA and written request for consultation to NOAA (50 CFR 600.920(h)(2)). The lead agency must initiate consultation at least 60 days prior to making its final decision (50 CFR 600.920(h)(4)).

NOAA must respond in writing within 30 days (50 CFR 600.920(h)(4)). If NOAA determines that an action would not adversely affect EFH or that no EFH Conservation Recommendations are needed, it will notify the lead agency and the lead agency may proceed to implementing its final decision. However, if NOAA determines that the action may result in substantial adverse effects on EFH or that additional analysis is needed to assess the effects of the action, NOAA will request in writing that the lead agency initiate Expanded Consultation. If Expanded Consultation is determined not to be necessary, NOAA will provide EFH Conservation Recommendations and the lead agency may proceed to implementing its final decision with consideration of the recommendations.

(50 CFR 600.920(h)(3)).

Sections 305(b)(3) and (4) of the Magnuson-Stevens Act requires NOAA (see 50 CFR 600.925) and relevant Councils (see 50 CFR 600.930) to provide comments and EFH Conservation Recommendations to the lead agency on actions that affect EFH. Recommendations may include measures to avoid, minimize, mitigate, or otherwise offset adverse effects on EFH resulting from actions or proposed actions authorized, funded, or undertaken by that agency.

(16 U.S.C. § 1855(b)).

12-FD-i.30 to 12-FD-i.35 – Initiate Expanded Consultation

Expanded Consultation allows maximum opportunity for NOAA and the lead agency to work together to review the proposed action’s potential impacts on EFH and to develop EFH Conservation Recommendations. If the lead agency is unable to integrate required EFH Consultation with an existing environmental review process, or if NOAA has determined through the Alternative Consultation process that additional analysis is needed to assess effects of the proposed federal action, then the lead agency must initiate the Expanded Consultation process. The lead agency initiates Expanded Consultation by submitting a completed EFHA and written request for consultation to NOAA (50 CFR 600.920(h)(2)). The lead agency must initiate consultation at least 90 days prior to making its final decision (50 CFR 600.920(i)(4)).

NOAA must respond in writing within 60 days (50 CFR 600.920(i)(4)). NOAA’s review process will involve:

  • Review of the EFHA, any additional information submitted by the agency, and other relevant information;
  • A site visit to assess the quality of the habitat and to clarify the potential impacts of the proposed action;
  • Coordination of review with appropriate Council(s); and
  • Discussion of EFH Conservation Recommendation with lead agency.

(50 CFR 600.920(i)(3)).

12-FD-i.36 to 12-FD-i.39 – Has NOAA Determined that Additional Data or Analysis Would Provide Better Information?

If NOAA determines that additional data or analysis would provide better information for development of EFH Conservation Recommendations, it may request additional time for Expanded Consultation. However, NOAA and the lead agency must agree to an extension. If NOAA and the lead agency agree to an extension, the lead agency should provide the additional information to the extent practicable. If NOAA and the lead agency do not agree to extend consultation, NOAA must provide EFH Conservation Recommendations to the lead agency using the best scientific information available to NOAA.

(50 CFR 600.920(i)(5)).

12-FD-i.40 – Provide EFH Conservation Recommendations to Lead Agency

Sections 305(b)(3) and (4) of the Magnuson-Stevens Act requires NOAA (see 50 CFR 600.925) and relevant Councils (see 50 CFR 600.930) to provide comments and EFH Conservation Recommendations to the lead agency on actions that affect EFH. Recommendations may include measures to avoid, minimize, mitigate, or otherwise offset adverse effects on EFH resulting from actions or proposed actions authorized, funded, or undertaken by that agency.

(16 U.S.C. § 1855(b)).

12-FD-i.41 to 12-FD-i.42 – Respond to Recommendations Made by NOAA and/or Council(s)

Section 305(b)(4)(B) of the Magnuson-Stevens Act requires that the lead agency respond in writing to comments received from NOAA and/or relevant Council(s) as part of the EFH Consultation process. (16 U.S.C. § 1855(b)). The lead agency must respond within 30 days. The lead agency’s response must include a description of measures proposed by the agency for avoiding, mitigating, or offsetting the impact of the activity on EFH. If the agency’s response is inconsistent with NOAA’s Conservation Recommendations, then the response must explain the agency’s reason(s) for not following the recommendations, including the scientific justification for any disagreements with NOAA over the anticipated effects of the action and the measures needed to avoid, minimize, mitigate, or offset such effects.

(50 CFR 600.920(k)).

12-FD-i.42 – Implement Final Decision

After responding to EFH Conservation Recommendations the lead agency may implement its final decision with consideration of the recommendations made by NOAA and/or Council(s).

12-FD-i.43 to 12-FD-i.44 – Has NOAA Determined the Agency’s Final Decision is Not Consistent with Recommendations?

If the lead agency’s decision is inconsistent with NOAA’s or relevant Council’s EFH Conservation Recommendation, then NOAA may request a meeting to discuss the action and opportunities for resolving any disagreements.

(50 CFR 600.920(k)(2)).

12-FD-i.45 to 12-FD-i.47 – Has New Information Become Available or has the Lead Agency Revised its Plans in a Manner that May Adversely Affect EFH?

The lead agency must reinitiate the EFH Consultation process if the agency substantially revises its plans for an action in a manner that may adversely affect EFH or if new information becomes available that affects the basis for NOAA’s EFH Conservation Recommendations. If not, the developer may continue with the project in compliance with applicable EFHA.

(50 CFR 600.920(l)).


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