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.
11. What are the contents of 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.
12. Can EFH Assessments be combined with other Federal
consultations or environmental review processes?
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.
13. After a Federal agency consults, what must NMFS
do?
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.
14. What is required of the Federal action agency once
it has received EFH conservation and enhancement recommendations from NMFS?
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).
15. Are Federal agencies required to accept the NMFS
conservation recommendation?
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.
16. Is consultation required for projects already
approved by the Federal action agency?
No. Consultation is not required for completed actions (e.g.,
issued permits). However, consultation is required for renewals or substantial revisions
of actions.
17. Are consultations required for actions that occur
outside a designated EFH area?
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.
18. Will EFH be consistent with the agreements
established in the Administration's "No Surprise Policy" under the Endangered
Species Act?
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.
19. If EFH overlaps with critical habitat under ESA,
do two individual consultations have to be considered?
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.
20. Are there penalties for Federal agencies that do
not consult with NMFS?
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.
21. Who will be able to review EFH maps?
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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