NMFS’s Role and Authorities
NMFS recognizes the growing importance of this new area of energy production and understands that such efforts may impact marine resources, such as endangered species, marine mammals, fisheries, and essential fish habitat. To ensure the protection of these and other resources NMFS provides science-based information, conservation recommendations, and project alternative recommendations to the Federal and state agencies that are responsible for regulating ocean energy and related infrastructure projects.
NMFS statutory authorities require alternative energy permitting and licensing agencies to consult with NMFS regarding the impacts of proposed ocean energy projects on ocean resources. These consultations offer the opportunity to provide recommendations to both the permitting agencies and energy companies on how to avoid, minimize, or mitigate the impacts of their energy projects on living marine resources and essential habitat.
Primary Authorities used in NMFS consultations.
The Federal Power Act (FPA)
Under FPA the Federal Energy Regulatory Commission (FERC) uses its authority to exercise jurisdiction over hydropower projects, but also over hydrokinetic (wave, tidal, current) ocean energy development of projects through the issuance of preliminary permits for pre-licensing activities in coastal and offshore waters. FPA also grants NMFS the authority to prescribe fishways and to propose conservation measures to address any adverse effects to fish and wildlife resources at projects licensed by FERC.
Energy Policy Act of 2005 (EPAct)
EPAct changed the existing NMFS procedures for reviewing hydropower licensing projects under FPA. EPAct requires the Departments of Commerce, the Interior, and Agriculture to conduct trial-type hearings for disputed issues of material fact raised by the permit applicant or other parties involved in the project concerning the Departments’ FPA prescriptions and conditions. It also created a new opportunity for interested parties to submit proposed alternatives to the Departments' conditions and prescriptions, which triggers a requirement for the Departments to analyze the effects of their prescriptions and conditions and all submitted alternatives on non-resource related issues (e.g., energy supply, water supply, flood control, air quality). EPAct also amended the Outer Continental Shelf (OCS) Lands Act to authorize the Minerals Management Service (MMS) to grant leases, easements, or rights-of-way for alternative energy-related uses on the OCS of the U.S. With their new authority, MMS is required to ensure the protection of the environment, conservation of natural resources of the OCS, and coordination with relevant Federal agencies, including NMFS.
Magnuson-Stevens Fishery Conservation and Management Act (MSA)
The MSA provides for the conservation and management of the Nation’s fishery resources through the preparation and implementation of fishery management plans (FMPs). One of the required provisions of FMPs specifies that essential fish habitat (EFH) be identified and described for the fishery, adverse impacts on EFH be minimized to the extent practicable, and other actions to conserve and enhance EFH be identified. The MSA also mandates that NMFS coordinate with, and provide information to, Federal agencies to further the conservation and enhancement of EFH. Federal agencies must consult with NMFS on any action that may adversely affect EFH. When NMFS finds that a Federal or state action would adversely affect EFH, it is required to provide conservation recommendations.
Additional Authorities used in consultations.
