Frequently Asked Questions
Essential Fish Habitat (EFH)

1.    How is Essential Fish Habitat authorized?

The Magnuson-Stevens Fishery Conservation and Management Act, as amended by the Sustainable Fisheries Act of 1996 (Public Law 104-267), established a new requirement to describe and identify "essential fish habitat" (EFH) in each fishery management plan.

2.    What is the definition of Essential Fish Habitat?

EFH is defined as "those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity." Waters include aquatic areas and their associated physical, chemical and biological properties. Substrate includes sediment underlying the waters. Necessary means the habitat required to support a sustainable fishery and the managed species' contribution to a healthy ecosystem. Spawning, breeding, feeding, or growth to maturity covers all habitat types utilized by a species throughout its life cycle.

3.    What fish species are covered under EFH?

Only species managed under a Federal fishery management plan are covered.

4.    Who must undertake an EFH consultation?

The Magnuson-Stevens Act requires all Federal agencies to consult with NMFS on all actions, or proposed actions, permitted, funded, or undertaken by the agency, that may adversely affect EFH.

5.    What is meant by "adversely affect"?

Adversely affect means any impact which reduces the quality and/or quantity of EFH. Adverse affects may include direct (e.g., contamination; physical disruption), indirect (e.g., loss of prey), site-specific or habitat-wide impacts, including individual, cumulative or synergistic consequences of actions.

6.    Do all activities proposed in an EFH area require consultation?

Activities proposed to occur in EFH areas do not automatically require consultation. Consultations are triggered only when the proposed action may adversely affect EFH, and then, only Federal actions require consultation.

7.    Are States required to consult with NMFS?

No, States are not required to consult. However, if NMFS receives information on a State action that may adversely affect EFH, NMFS is required to provide EFH conservation recommendations to the State agency. States are not required to initiate consultation with NMFS nor respond to its recommendations.

8.    Are private landowners required to undertake an EFH consultation for projects on private land?

Private landowners have no new responsibilities to consult with NMFS on private land activities. Only if the project is funded, permitted, or authorized by a Federal agency and the project may adversely affect EFH is consultation with NMFS required. Most activities will be covered under another existing regulatory regime such as ESA or NEPA.

9.    When will EFH consultations begin?

They cannot begin until EFH amendments have been approved by the Secretary of Commerce.   Pacific Fisheries Management Council EFH amendments are expected to be effective in early 1999.

10.    Are there different procedures to use for consultation?

Yes there are, but NMFS will use existing review processes when possible. If unable, then NMFS may use a programmatic consultation or general concurrence. If none of these options are appropriate, NMFS will conduct an individual consultation in which the Federal agency must provide NMFS a written assessment of the effect of that action on EFH. This assessment is known as an EFH Assessment.

EFH Assessments have mandatory contents that are nearly identical to the environmental assessments required under other Federal statutes. They include: 1) a description of the proposed action; 2) an analysis of the effects (including cumulative effects) of the proposed action on EFH, the managed fish species and major prey species; and, 3) the Federal agency's views regarding the effects of the action on EFH and proposed mitigation, if applicable.

Yes, NMFS strongly encourages such efforts to streamline the consultation process. EFH consultation should be consolidated, where appropriate, with interagency consultation, coordination and environmental review procedures required by other statutes such as the National Environmental Policy Act (NEPA), Fish and Wildlife Coordination Act, Clean Water Act, Endangered Species Act (ESA) and Federal Power Act. EFH consultation requirements can be satisfied using existing review procedures if they provide NMFS timely notification of actions that may adversely affect EFH and the notification meets requirements for EFH Assessments.

Once consultation is completed, NMFS must provide conservation recommendations in writing within 30 days for an Abbreviated Consultation and 60 days for an Expanded Consultation or other timeframes relevant to an existing review process.

Within 30 days after receiving a conservation recommendation from NMFS, the Federal agency is required to provide a detailed written response to NMFS and the Pacific Fishery Management Council. This response shall include a description of measures proposed for avoiding, mitigating, or offsetting the impact of the activity on EFH. The response may be included in that prepared for other regulatory activities (see #12).

No. EFH recommendations are advisory and non-binding to the Federal action agency. However, in the case of a response from a Federal agency that is inconsistent with the NMFS recommendations, the Federal agency must explain in writing its reasons for not following the recommendations. Under these circumstances, the NMFS Assistant Administrator may request a meeting with the head of the Federal action agency, as well as any other agencies involved, to discuss the proposed action and opportunities for resolving any disagreements. Participation in such a meeting is voluntary.

No. Consultation is not required for completed actions (e.g., issued permits). However, consultation is required for renewals or substantial revisions of actions.

The Magnuson-Stevens Act requires consultation for all actions that may adversely affect EFH without distinguishing between actions in or out of EFH areas. Federal activities occurring outside EFH which have an impact on EFH waters and substrate will need to be considered in the consultation process. The environmental assessment already required for most Federal activities will in most cases satisfy the EFH consultation.

Yes. NMFS may adapt the existing Habitat Conservation Plans to accommodate the consultative requirements of the Magnuson-Stevens Act. Processes such as these will streamline the consultative requirements and avoid conflicts with established interagency agreements.

No. Both ESA and EFH considerations can be handled under one unified consultation. Though EFH Assessments have their own information requirements, Federal agencies are encouraged to incorporate an EFH Assessment into documents prepared for other purposes such as an ESA Biological Assessment or NEPA documents and public notices.

No. NMFS has no regulatory authority to enforce EFH compliance. However, private citizens still have the option of legal action to ensure adequate compliance with environmental laws.

Anyone. NMFS, working with fishery management councils and technical review teams, is preparing EFH maps. These maps will be available to Federal agencies as well as the general public to determine if a Federal action occurs within an EFH area.

For More Information about Essential Fish Habitat please contact Bryant Chesney, (562) 980-4037.

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