A Primer for Federal Agencies

Essential Fish Habitat:
New Marine Fish Habitat Conservation Mandate for Federal Agencies

Executive Summary

Essential Fish Habitat:

New Marine Fish Habitat Conservation Mandate for Federal Agencies

Introduction

The 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act set forth a number of new mandates for the National Marine Fisheries Service (NMFS), regional fishery management councils, and federal action agencies to identify and protect important marine and anadromous fish habitat. The Councils, with assistance from NMFS, are required to delineate "essential fish habitat" (EFH) in fishery management plans (FMPs) or FMP amendments for all managed species. Federal action agencies which fund, permit, or carry out activities that may adversely impact EFH are required to consult with NMFS regarding potential adverse effects of their actions on EFH, and respond in writing to the fisheries service's recommendations. In addition, NMFS is required to comment on any state agency activities that would impact EFH.

The purpose of addressing habitat in this act is to provide for one of the nation's overall marine resource management goals - maintaining sustainable fisheries. As evidenced for all wildlife resources, suitable habitat is absolutely essential for their sustenance. Although the concept of EFH is similar to that of "Critical Habitat" under the Endangered Species Act, measures recommended to protect EFH by NMFS or a Council are advisory, not proscriptive. An effective EFH consultation process is vital to ensuring that Federal actions serve the Magnuson-Stevens Act resource management goals.

EFH Designation

The Act requires that EFH be identified for all species which are federally managed. This includes species managed by the Councils under Council fishery management plans (FMPs), as well as those managed by the National Marine Fisheries Service under FMPs developed by the Secretary of Commerce. Applicable species in the southwestern U.S. are listed in Table 1, along with the FMP authority.

Table 1. Fishery management plans and managed species or species complexes for the Pacific and Western Pacific regions.

PACIFIC FISHERY MANAGEMENT COUNCIL

WESTERN PACIFIC REGION FISHERY MANAGEMENT COUNCIL

Essential fish habitat (EFH) is defined in the Magnuson-Stevens Act as "...those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity." As required by the Act, NMFS promulgated regulations to provide guidance to the Councils for EFH designation. The regulations further clarify EFH by defining "waters" to 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; "substrate" to include sediment, hard bottom, structures underlying the waters, and associated biological communities; "necessary" to mean the habitat required to support a sustainable fishery and the managed species' contribution to a healthy ecosystem; and "spawning, breeding, feeding, or growth to maturity" to cover a species' full life cycle. EFH will be a subset of all areas occupied by a species (Figure 1). Acknowledging that the amount of information available for EFH determinations will vary for each species, the regulations direct the Councils to use the best information available, and to be increasingly specific and narrow in their delineations as more refined information is available.

The regulations also direct the Councils to consider a second, more limited habitat designation for each species in addition to Essential Fish Habitat. Habitat Areas of Particular Concern (HAPCs) are described in the regulations as subsets of EFH (Figure 1) which are rare, particularly susceptible to human-induced degradation, especially ecologically important, or located in an environmentally stressed area. Designated HAPCs are not afforded any additional regulatory protection under the Act; however, federal projects with potential adverse impacts to HAPCs will be more carefully scrutinized during the consultation process.

Designating the boundaries of EFH has taken careful consideration by the Councils, which are required to identify and delineate EFH in their fishery management plans by the statutory deadline of October 11, 1998. These EFH designations are expected to go into effect by means of fishery management plan amendments under the Magnuson-Stevens Act in early to mid 1999.

Figure 1. Conceptual relationship of all habitats used by a species (habitat), essential fish habitat (EFH) and habitat areas of particular concern (HAPC).

Besides delineating EFH, FMPs or FMP amendments must also identify and describe potential threats to EFH, which includes threats from fishing or any other sources, and recommend EFH conservation and enhancement measures. Councils are required to implement management measures to minimize, to the extent practicable, any adverse impacts to EFH caused by fishing gears. Guidelines for development of EFH amendment sections for each of these issues are included in the EFH regulations.

EFH Consultations

In the regulatory context for conserving fish habitat, the most important provisions of the Act are those which require federal agencies to consult with NMFS when any activity proposed to be permitted, funded, or undertaken by a federal agency may have adverse impacts on designated EFH. In fact, this provision has raised some concern among federal action agencies regarding potential increases in workload and regulatory requirements for the public. NMFS has addressed these concerns in the EFH regulations by emphasizing the use of existing environmental review processes. Provided the specifications outlined in the regulations are met, EFH consultations will be incorporated into interagency procedures previously established under the National Environmental Policy Act, Endangered Species Act, Clean Water Act, Fish and Wildlife Coordination Act, or other applicable statutes.

The consultation requirements in the Magnuson-Stevens Act direct federal agencies to consult with NMFS when any of their activities may have an adverse effect on EFH. The EFH regulations define an adverse effect as "any impact which reduces quality and/or quantity of EFH...[and] may include direct (e.g. contamination or physical disruption), indirect (e.g. loss of prey, reduction in species' fecundity), site-specific or habitat wide impacts, including individual, cumulative, or syunergistic consequences of actions.

Once NMFS learns of a federal or state project that may have an adverse effect on EFH, NMFS is required to develop EFH Conservation Recommendations for the project. These recommendations may include measures to avoid, minimize, mitigate, or otherwise offset adverse effects on EFH. Federal agencies are required to respond to EFH Conservation Recommendations in writing within 30 days. The Act also authorizes Councils to comment on federal and state projects, and directs Councils to comment on any project which may substantially impact anadromous fish habitat. The EFH regulations developed to assist Councils in EFH designation also further clarify the consultation requirements set forth in the Act.

In order to incorporate EFH consultations into coordination, consultation and/or environmental review procedures required by other statutes, three criteria must be met:

(1) The existing process must provide NMFS with timely notification of the action;

(2) The notification of the action provided to NMFS must include an assessment of the impacts of the proposed action on EFH as outlined in the requirements for "EFH Assessment;"

(3) NMFS must have completed a written finding that the existing process satisfies the requirements of the Act.

An "EFH Assessment" is a review of the proposed project and its potential impacts to EFH which is prepared by the Federal action agency. As set forth in the regulations, EFH Assessments must include (1) a description of the proposed action; (2) an analysis of the effects, including cumulative effects, of the action on EFH, the managed species, and associated species by life history stage; (3) the federal agency's views regarding the effects of the action on EFH; and (4) proposed mitigation, if applicable. If appropriate, the assessment should also include: the results of an on-site inspection; the views of recognized experts on the habitat or species affects; a literature review; an analysis of alternatives to the proposed action; and any other relevant information. The regulations require NMFS to provide EFH Conservation Recommendations in a timely manner.

Consultations may be conducted at either a programmatic or project specific level. Evaluation at a programmatic level is appropriate when sufficient information is available to develop EFH Conservation Recommendations and address all reasonably foreseeable adverse impacts under a particular generic topic. In these situations, General Concurrences for categories of activities may be requested by the Federal agency. General Concurrences alleviate the need for individual project consultation in most cases because NMFS has determined that projects of this category will likely result in no more than minimal adverse effects, individually and cumulatively. For example, NMFS might grant a General Concurrence for the construction of docks or piers which are designed to minimize adverse effects on coastal habitats.

Consultations at a project specific level are required when critical decisions are made at the project implementation stage, or when sufficiently detailed information for development of EFH Conservation Recommendations does not exist at the programmatic level. If existing processes are not used, then project specific consultations must follow either the abbreviated or expanded procedures. Abbreviated consultations allow NMFS to quickly determine whether, and to what degree, a federal action may adversely impact EFH, and should be used when substantial impacts to EFH are not expected. For example, the abbreviated consultation procedure would be used when the adverse effect of an action or proposed action could be alleviated through minor modifications, such as seasonal restrictions or the use of modified construction techniques.

Expanded consultations allow NMFS and a federal action agency the maximum opportunity to work together in the review of the action's impact of EFH and the development of EFH Conservation Recommendations. Expanded consultation procedures must be used for federal actions that would result in substantial adverse effects to EFH. Federal action agencies are encouraged to contact NMFS at the earliest opportunity to discuss whether the adverse effect of a proposed action makes expanded consultation appropriate. Expanded consultation procedures provide additional time for the development of Conservation Recommendations, and may be appropriate for actions such as the construction of large marinas or port facilities.

The Act mandates that a federal action agency must respond to NMFS proposed EFH Conservation Recommendations in writing within 30 days. The regulations require that such a response be provided at least 10 days prior to final approval of the action, if a decision by the federal agency is required in fewer than 30 days. The response must include a description of measures proposed by the agency for avoiding, mitigating, or offsetting the impact of the activity on EFH. In the case of a response that is inconsistent with NMFS Conservation Recommendations, the Agency must explain its reasons for not following the recommendations, including the scientific rationale for any disagreements with NMFS over the anticipated effects of the proposed action and the measures needed to offset such effects. If an agency decision is inconsistent with a NMFS Conservation Recommendation, the NMFS Director may request a meeting with the head of the agency to further discuss the project.

Conclusion

The EFH mandates of the Magnuson-Stevens Act represent a new effort to integrate fisheries management and habitat management by stressing the ecological relationships between fishery resources and the environments upon which they depend. The EFH consultation process will ensure that federal agencies explicitly consider the effects of their actions on important habitats, with the goal of supporting the sustainable management of marine fisheries. The National Marine Fisheries Service is committed to working with federal and state agencies to implement these mandates effectively and efficiently, with the ultimate goal of providing for the sustainability of the Nation's fishery resources.

EFH Contacts for the Pacific and Western Pacific Regions