«Preparing Essential Fish Habitat Assessments: A Guide for Federal Action Agencies Version 1 February 2004 INTRODUCTION The Magnuson-Stevens Fishery ...»
Preparing Essential Fish Habitat Assessments:
A Guide for Federal Action Agencies
The Magnuson-Stevens Fishery Conservation and Management Act (MagnusonStevens Act), as amended by the Sustainable Fisheries Act of 1996 (Public Law 104established procedures designed to identify, conserve, and enhance Essential
Fish Habitat (EFH) for those species regulated under a Federal fisheries management plan (FMP). Section 305(b)(2) of the Magnuson-Stevens Act requires Federal action agencies to consult with NOAA’s National Marine Fisheries Service (NOAA Fisheries) on all actions, or proposed actions, authorized, funded, or undertaken by the agency, that may adversely affect EFH.
The EFH Guidelines (50 CFR 600.05 - 600.930) outline the process for Federal agencies, NOAA Fisheries 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 guidelines require Federal action agencies to prepare a written EFH Assessment describing the effects of that action on EFH (50 CFR 600.920(e)(1)). The EFH Assessment is a necessary component for efficient and effective consultations between a Federal action agency and NOAA Fisheries.
To assist Federal agencies in developing EFH Assessments, this guide contains EFH definitions, responses to frequently asked questions concerning preparation of EFH Assessments, and some examples of completed EFH Assessments.
DEFINITIONSEssential Fish Habitat (EFH): those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity (16 U.S.C. 1802(10)).
Waters include aquatic areas and their associated physical, chemical, and biological properties that are used by fish and may include aquatic areas historically used by fish where appropriate (50 CFR 600.10).
Substrate includes sediment, hard bottom, structures underlying the waters, and associated biological communities (50 CFR 600.10).
Necessary means the habitat required to support a sustainable fishery and the managed species’ contribution to a healthy ecosystem (50 CFR 600.10).
Page 1 of 34 Healthy ecosystem means an ecosystem where ecological productive capacity is maintained, diversity of the flora and fauna is preserved, and the ecosystem retains the ability to regulate itself. Such an ecosystem should be similar to comparable, undisturbed ecosystems with regard to standing crop, productivity, nutrient dynamics, trophic structure, species richness, stability, resilience, contamination levels, and the frequency of diseased organisms (50 CFR 600.10).
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. Adverse effects to EFH may result from actions occurring within EFH or outside of EFH and may include site-specific or habitatwide impacts, including individual, cumulative, or synergistic consequences of actions (50 CFR 600.810(a)).
FREQUENTLY ASKED QUESTIONSWhy do the EFH guidelines require Federal action agencies to prepare an EFH Assessment?
The EFH guidelines require Federal agencies to prepare EFH Assessments to evaluate the effects of proposed actions on EFH and Federally managed fish species. An EFH Assessment, either detailed, and referenced as such, in an existing environmental document (EA or EIS) or as a stand alone EFH Assessment, is the beginning of a cooperative exchange of information assessing any affects to EFH and offers ways to minimize any adverse effects. Additionally, this information is necessary for NOAA Fisheries to fulfill its statutory responsibility to provide EFH conservation recommendations to minimize adverse effects of any proposed action.
This cooperative exchange of information, and any conservation recommendations, between NOAA Fisheries and Federal agencies is vital for effective and efficient consultation and for the action agency to fulfill their consultation requirements. The EFH Assessment allows NOAA Fisheries to promptly develop EFH conservation recommendations that are based upon complete information about the proposed action.
When is an EFH Assessment Required?
A Federal agency must prepare an EFH Assessment for any Federal action that may adversely affect EFH (50 CFR 600.920(e)(1)). A Federal agency must first determine whether their action may adversely impact EFH. If a Federal agency determines that a Federal action may adversely impact EFH, then the Federal agency must prepare an EFH assessment. If a Federal agency determines that a Federal action will not adversely affect EFH, then the Federal agency is not required to prepare an EFH Assessment. However, if NOAA Fisheries becomes aware of a Federal action that Page 2 of 34 would adversely affect EFH, but for which a Federal agency has not initiated an EFH consultation, NOAA Fisheries may request the Federal agency to initiate EFH consultation, and prepare an EFH assessment.
If the proposed Federal action is similar to a previous action (i.e., involves similar impacts to EFH, would occur in the same geographic area or similar ecological setting) and an EFH Assessment was prepared for that previous action, the Federal agency may incorporate by reference the completed EFH Assessment and supplement it with any relevant new project specific information. The old EFH Assessment and the supplemental information would constitute a new EFH Assessment which must be provided to NOAA Fisheries.
If more than one Federal agency is responsible for a Federal action, then the consultation may be fulfilled through a lead agency, and only the lead agency must prepare an EFH Assessment. The lead agency should notify NOAA Fisheries in writing that it is representing one or more additional agencies. Alternatively, if one Federal agency has completed an EFH consultation for an action and another Federal agency acts separately to authorize, fund, or undertake the same activity (such as issuing a permit for an activity that was funded via a separate Federal action), the completed EFH consultation and associated EFH Assessment may suffice for both Federal actions if the consultation adequately addresses the adverse effects of those actions on EFH.
Where is EFH and what are the species?
NOAA Fisheries’ authority to manage EFH is directly related to those species covered under FMPs in the United States, including Alaska, Hawaii, the U.S. Virgin Islands and Puerto Rico. EFH sections of FMPs include detailed life history and habitat information used to describe and identify EFH for each plan’s federally managed species. A complete list of Federally-managed species is available for each Region upon request.
EFH information can also be found via the internet at each of the NOAA Fisheries Regional websites or on the NOAA Fisheries Headquarters website address at http://www.nmfs.noaa.gov/habitat/habitatprotection/efh_designations.htm
What is a Habitat Area of Particular Concern (HAPC)?
HAPCs are subsets of EFH that merit special considerations to conserve the habitat.
These habitat conditions are listed in the EFH Guidelines (50 CFR 600.815(a)(8)) and summarized as: 1) the importance of the ecological function provided by the habitat; 2) the extent to which the habitat is sensitive to human-induced environmental degradation; 3) whether, and to what extent, development activities are, or will be, stressing the habitat type; and 4) the rarity of the habitat type. HAPC areas have been described within EFH areas. These areas are detailed in EFH sections of FMPs and are summarized within the Regional Council Approaches to the Identification and Protection of Habitat Areas of Particular Concern document.
Action Agencies should indicate in the EFH Assessment whether an action(s) may Page 3 of 34 adversely affect HAPC(s). Actions that occur in HAPCs may receive more scrutiny by NOAA Fisheries when developing conservation recommendations. Therefore, action agencies may want to consider extra measures to avoid, minimize, or mitigate adverse affects on EFH within HAPCs.
What goes into an EFH Assessment?
All EFH Assessments must include the following contents stated in 50 CFR 600.920 (e)(3):
1. Description of the action What is the action? What is the purpose of the action? How, when, and where will it be undertaken? What will be the result of the action (e.g., 200 ft seawall, 27 new pier pilings, 500 ft3 sediment removed)?
2. Analysis of the potential adverse effects of the action on EFH and the managed species What EFH will be affected by the action? What are the adverse effects to EFH that could occur as a result of this action (e.g., loss of 0.5 acres of seagrass, turbidity)? How would they impact managed species (e.g., loss of foraging habitat, removal of cover)? What would be the magnitude of effects? What would be the duration of the effects?
3. Federal agency’s conclusions regarding the effects of the action on EFH Would the adverse effects be minimal, more than minimal but less than substantial, or substantial based on the information discussed above? What is the spatial extent of the impact? What is the duration of the impact (e.g., temporary or permanent, short-term or long-term)?
4. Proposed mitigation, if applicable.
What, if any, measures is the Federal agency proposing as part of the action to avoid, minimize or otherwise mitigate for the anticipated adverse effects to EFH?
Additional information should be included in the EFH Assessment if warranted by the proposed action. For example, an action that may adversely affect an area that is particularly sensitive to disturbance might warrant a more detailed analysis of direct, indirect, and cumulative impacts. Also, for some actions that have substantial effects that would require an expanded consultation, additional information may be necessary in the EFH Assessment. Additional contents suggested in the EFH guidelines include
1. Results of an on-site inspection to evaluate the habitat and the site-specific effects of the project On-site inspections can range from informal visits or photographs to formal
2. Views of recognized experts on the habitat or species that may be affected Experts could include university, agency, or private industry personnel with extensive knowledge about the habitat, managed species, or types of effects relevant to the proposed action.
3. Review of pertinent literature and related information There are various sources of literature that can be reviewed for relevant information about the habitat, managed species, or types of effects relevant to the proposed action, including FMP EFH information, scientific journal articles, environmental documents (e.g., National Environmental Policy Act (NEPA) documents, Forest Management Plans, Restoration Plans, Fish and Wildlife Coordination Act Reports, etc.) and other agency reports.
4. Other relevant information Anything else that might assist the Federal agency and/or NOAA Fisheries to evaluate the potential adverse effects of the action.
What level of detail should be included in an EFH Assessment?
The level of detail in an EFH Assessment should be commensurate with the complexity and magnitude of the potential adverse effects of the action, 50 CFR 600.920 (e)(2).
For example, relatively simple actions that may adversely effect EFH, should be brief.
Actions that may pose a more serious threat to EFH, or that involve a more complex range of potential adverse effects, would justify a correspondingly more detailed EFH Assessment.
Can EFH Assessments be incorporated into other documents?
Federal agencies may incorporate an EFH Assessment into documents prepared for other purposes such as Endangered Species Act Biological Assessments, NEPA documents, or public notices. If an EFH Assessment is contained in another document, it must still include all of the mandatory contents required by the EFH guidelines. It must also be clearly identified in the table of contents and text of the document as an EFH Assessment. Alternatively, an EFH Assessment may incorporate by reference other relevant environmental assessment documents that have already been completed. The referenced document must be provided to NOAA Fisheries with the EFH Assessment.
How can the EFH Assessment process be combined with existing environmental
The EFH guidelines at 50 CFR 600.920(f) enable Federal action agencies to use existing consultation or environmental review procedures to satisfy the MagnusonStevens Act consultation requirements if the procedures meet the following criteria: 1) the existing process must provide NOAA Fisheries with timely notification of actions that may adversely affect EFH; 2) notification must include an assessment of the proposed action’s impacts on EFH that meet the requirements for EFH Assessments discussed in section 600.920(e); and 3) NOAA Fisheries must have made a finding pursuant to section 600.920(f)(3) that the existing process satisfies the requirements of section 305(b)(2) of the Magnuson-Stevens Act.
EXAMPLES OF EFH ASSESSMENTS
Following are three examples of EFH Assessments, two were developed for abbreviated EFH consultation, and the third was developed for an expanded EFH consultation. These examples were adapted from authentic EFH assessments for the purpose of this guidance document. NOAA Fisheries has included some review comments in bold, italic, and indented text in order to provide additional suggestions to strengthen the examples.