Understanding Consultations with Federal Agencies

The Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act require federal agencies to consult with NOAA Fisheries when they authorize, fund, or undertake actions that may impact (1) endangered and threatened marine species and/or their habitats, and (2) habitats necessary for healthy, productive fish stocks.

Federal agency consultations on essential fish habitat, also known as EFH, are required under the Magnuson-Stevens Act. 

Federal agency consultations on activities that may affect endangered and threatened species or their habitats are required under section 7 of the Endangered Species Act.

These interagency consultations are designed to help the agencies ensure that federal projects or activities do not jeopardize the continued existence of a species or adversely impact important fish habitat or designated critical habitat. 

We also consult within NOAA Fisheries on scientific research permits and the development of fishery management plans.

NOAA Fisheries collaborates with partners—especially regional fishery management councils—and uses the best available science to identify, describe, and map essential fish habitat for all federally managed fish. After defining EFH for a specific species, we can protect its habitat.

Protection takes two main forms:

• Limitations on fishing—the councils pinpoint sensitive habitats and may limit certain fishing gears in those areas.
• Consultations on development—all federal agencies whose work may affect fish habitats must consult with NOAA Fisheries.

EFH consultations guide federal partners, such as the U.S. Army Corps of Engineers, to minimize or avoid environmental impacts during construction and other development that may impact marine fisheries and vital habitats. They function like federal dietary recommendations: we guide people to make good choices with long-term benefits. Every year, habitat experts advise federal agencies on hundreds of projects, ranging from port expansions to offshore energy development, to ensure that they do not destroy essential fish habitat.

Read more about EFH authorities and guidelines under the Magnuson-Stevens Act in the act’s official wording on essential fish habitat.

Federal agencies must determine whether their actions may affect ESA-listed species. If an agency determines its actions may affect threatened or endangered marine species, the agency is required to consult with NOAA Fisheries. Some consultations are informal, involving conference calls and exchange of emails and letters. Others are formal, resulting in biological opinions. The time needed to conduct an ESA consultation will vary depending on the complexity of the proposed action.

Informal consultations are conducted on actions that are not likely to adversely affect ESA-listed species or designated critical habitat. In these cases, NOAA Fisheries provides a letter of concurrence and no further consultation is required.

Formal consultations are conducted on actions that are likely to adversely affect ESA-listed species or designated critical habitat. These consultations must be completed within 135 days of initiation (90 days for consultation plus 45 days for coordination between the agencies), unless an extension is agreed upon by the agencies. Formal consultations result in a biological opinion, which states NOAA Fisheries' determination of whether the federal action is likely to jeopardize the continued existence of an ESA-listed species or is likely to destroy or adversely affect designated critical habitat.

During an ESA consultation, NOAA Fisheries reviews the proposed action and its effects on ESA-listed species and designated critical habitat. The goal of consultation is to identify, avoid, and/or minimize potential harm to threatened or endangered species or impacts to critical habitat. The biological opinion resulting from a formal consultation documents the consultation process, analyses, and conclusions. It also identifies the conditions under which the proposed action may proceed.

During consultation, we work with the acting federal agency to identify appropriate mitigation, monitoring, and best management practices for their activities to ensure the protection of ESA-listed species and their habitat. If at the end of consultation we find that the action is likely to jeopardize ESA-listed species, an alternative action with fewer impacts (known as a reasonable and prudent alternative) may be required.

Federal activities we consult on can range from local or state projects, to regional, national, or international actions. The scope of projects also varies, from small river systems, estuaries, or coastal areas to an ocean basin like the Gulf of Mexico or Atlantic Ocean.

Actions that commonly require consultation include:

• Dredging
• Hydroelectric activities
• Large construction activities
• Military exercises, testing, and training
• Offshore energy activities
• Permitting programs
• Scientific research
• Seismic surveys

Some of the agencies we consult with include:

• U.S. Army Corps of Engineers
• Department of Defense
• Department of the Interior
• Environmental Protection Agency
• Federal Energy Regulatory Commission
• National Science Foundation
• Nuclear Regulatory Commission
• U.S. Geological Survey

We also provide consultations within our own agency. This may include review and consultation on scientific research projects or development of fishery management plans.

Federal consultations conducted under the Endangered Species Act and Magnuson-Stevens Act can be found in the Environmental Consultation Organizer (ECO) for records from 2017 to present. If you are looking for information on consultations completed before 2019 that is not available in ECO, you may send an email with specific details on your information request to NMFS.Historic.Consultations@noaa.gov