Understanding Consultations with Federal Agencies
Learn how NOAA Fisheries conducts consultations with federal agencies to protect endangered and threatened species and important fish habitat.
NOAA Fisheries partners with federal agencies and federally recognized tribes to advise and collaborate on activities that might impact endangered and threatened species, marine mammals, and important marine habitats.
This work includes:
Consulting with federal agencies whose work might affect important fish habitats that are necessary for the spawning, breeding, feeding, and/or growth of healthy fish populations, and working to mitigate impacts.
Collaborating with federal agencies and tribes to address threats to endangered and threatened species that might result from federal programs and actions, including adverse impacts to species’ habitats.
Working with tribal governments on marine mammal issues (e.g., whales and seals).
Working with federal agencies and tribal governments on the development of fishery management plans.
Working with federal agencies and tribal governments on scientific research permits.
The United States government recognizes tribal nations as "sovereign domestic dependent nations". Approximately 229 tribes are located in Alaska. The remaining are located in 33 other states.
Essential fish habitat has been described for approximately 1,000 managed species. The Magnuson-Stevens Act requires us to identify essential fish habitat and consult with other federal agencies when their actions might adversely affect EFH, so as to conserve such habitat.
Healthy habitat is necessary for fish to complete their life cycle, thus contributing to a fishery that can be harvested sustainably. The Magnuson-Stevens Act (Section 305) requires us to identify essential fish habitat for federally managed fish species. We consult with other federal agencies on conservation measures for any actions they fund or authorize that might adversely affect essential fish habitat.
Under the Endangered Species Act, federal agencies must consult with us when any project or action they take might affect an ESA-listed marine species or designated critical habitat. We assist federal agencies that are required to develop conservation programs for endangered and threatened marine species.
We consult with tribes and Alaska Native corporations about federal actions that might affect tribal governments and their members. We partner with tribal governments in the development of policies, regulations, and programs that impact ESA-listed species and essential fish habitat. We also work with tribes and regional fisheries management councils during the development of fishery conservation and management actions.
We strongly encourage federal agencies to contact us well in advance of proposed projects or actions that might affect ESA-listed marine species or designated critical habitat. We provide information, resources, and other materials to facilitate the consultation process.
The Public Consultation Tracking System is an information management system for tracking consultations for endangered and threatened marine species under the Endangered Species Act and essential fish habitat consultations under the Magnuson-Stevens Act.
When fish and their habitats interact with human-caused activities, we start conversations about how to solve such conflicts. These consultations involve experts getting together to figure out how to achieve the best outcome for all parties involved. Working with federal, state, and local officials, we engage in national-level consultations about fishing activities and non-fishing activities (e.g., power plants, ports, fill, and pollutants). With a clear understanding of how human activities might affect fish and other species navigating their habitat, we can strike a balance between the natural and the human-induced environment.
Our main habitat consultations include:
Essential fish habitat under the Magnuson-Stevens Act.
Hydropower relicensing and fish passage under the Federal Power Act.
Activities that result in modification of streams or other water bodies under the Fish and Wildlife Coordination Act.
Section 305 of the Magnuson-Stevens Act requires us to identify and conserve essential fish habitat for federally-managed fish. Federal agencies, including the military and even other NOAA offices, must consult with us on any action that might adversely affect essential fish habitat. When a determination is made that an action might adversely affect essential fish habitat, we identify measures to avoid, reduce, or compensate for adverse impacts to fish habitat.
The Federal Power Act requires non-federal hydropower owners to obtain a license from the Federal Energy Regulatory Commission. As part of this process, the Act authorizes NOAA Fisheries to require improved fish passage at dams to ensure the safe, timely, and effective upstream and downstream passage of migrating fish. NOAA Fisheries also recommends conditions to the license that will protect or improve habitat and fish populations.
The Fish and Wildlife Coordination Act gives NOAA an important advisory role to review and comment on proposed federally permitted activities that could affect living marine resources. As amended in 1964, the act requires that all federal agencies consult with NOAA Fisheries, U.S. Fish and Wildlife Service, and state wildlife agencies when proposed actions might result in modification of a natural stream or body of water. Federal agencies must consider how these projects would affect fish and wildlife and provide for improvement of these resources.
The act allows NOAA Fisheries to provide comments to the U.S. Army Corps of Engineers during review of projects under section 404 of the Clean Water Act (concerning the discharge of dredged materials into navigable waters) and section 10 of the Rivers and Harbors Act of 1899 (obstructions in navigable waterways). NOAA Fisheries comments provided under the Fish and Wildlife Coordination Act are intended to reduce environmental impacts to migratory, estuarine, and marine fisheries and their habitats.
Under Section 7(a)(1) of the Endangered Species Act, federal agencies are directed to implement programs for the conservation of threatened and endangered species. We assist these agencies with the development of conservation programs for marine species, and we work with federal agencies, like the U.S. Army Corps of Engineers and the U.S. Forest Service, on training and opportunities to implement proactive conservation actions that will benefit ESA-listed species and their habitats.
Under Section 7(a)(2) federal agencies must consult with NOAA Fisheries when any project or action they take might affect an ESA-listed marine species or designated critical habitat. The consultation process can vary depending on the complexity of the project or action. Projects/actions that commonly require consultation include:
Large construction activities.
Military exercises, testing, and training.
Offshore energy activities.
NOAA Fisheries staff will work with the federal action agency to develop the documentation (e.g., biological assessment) needed to initiate and complete consultation.
We strongly encourage federal agencies to contact us well in advance of proposed projects or actions. Doing so allows all parties to better understand the proposed project/action, gather the information needed to initiate, and complete the consultation in a timely manner.
For actions that are wholly within a specific region, the federal action agency should contact the appropriate NOAA Fisheries Regional Office:
For actions that span two or more regions and/or are national or global in scope, the federal action agency should contact:
The process usually begins as informal consultation. The federal agency proposing the project or action approaches NOAA Fisheries in the early stages of project planning and requests consultation. Discussions between our agencies include which ESA-listed species might occur in the proposed action area and what effect the proposed action might have on those species and/or designated critical habitat.
If we agree that the proposed project or action is not likely to affect any listed species or designated critical habitat, we provide a letter of concurrence and no further consultation is required.
However, if it appears that the agency’s action might affect a listed species or designated critical habitat, that agency prepares a biological assessment to determine the project’s effect on a ESA-listed species or its critical habitat. A biological assessment includes details on potential effects to a species or its designated critical habitat.
When a federal agency determines that its action is likely to adversely affect a listed species and/or its designated critical habitat, the agency is required to submit a request for formal consultation.
Formal 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 NOAA Fisheries developing a biological opinion. The intent of a biological opinion is to ensure that the proposed project or action will not reduce the likelihood of survival and recovery of an ESA-listed species. A biological opinion usually also includes conservation recommendations that further the recovery of ESA-listed species. The biological opinion includes reasonable and prudent measures as needed to minimize any harmful effects, and may require monitoring and reporting to ensure that the project or action is implemented as described.
The ESA also recognizes the need to respond immediately to emergencies. We expedite consultations during emergencies so federal agencies can complete their critical missions in a timely manner while still providing protections to listed species. Where emergency actions are required that might affect listed species and/or their designated critical habitats, a federal agency may not have the time for the normal consultation procedures under non-emergency conditions. Emergency consultation expedites communication and allows agencies to incorporate endangered/threatened species concerns into their emergency response.
The relationship between the United States government and federally recognized tribes is one of government to government. As part of our partnerships with tribal governments, we work with tribes in a number of regions as well as nationally. This includes:
Informing tribes of upcoming issues.
Inviting tribal members to regional fishery management council meetings to meet with us.
Providing a forum for them to provide comments.
Sharing information about how to request a consultation or be involved in the council and decision making process.
Participating in informal and formal consultation meetings.
Documenting the issues discussed in consultation.
Addressing the concerns raised by the tribes to the degree possible given other laws that apply to a particular resource management decision.
Consultations primarily encompass management agreements and fisheries, but can also include habitat conservation issues. For example, in Alaska, the primary issues that have been of interest to Alaska tribes are salmon bycatch, halibut subsistence, commercial fishing with trawl gear in the waters off western Alaska, and fisheries management in the Arctic.
When it comes to marine mammals, the process for tribal consultation usually takes the form of co-management agreements, which are governed by the Marine Mammal Protection Act. Individual co-management agreements established between NOAA Fisheries and tribes incorporate the spirit and intent of co-management through close cooperation and communication between us and tribes, hunters, and subsistence users.
In Alaska, we consult with tribes and Native corporations about federal actions that might affect tribal governments and their members. Executive Order 13175 sets the framework for regular and meaningful consultation and collaboration with Alaska Native representatives in the development of policies, legislation, regulations, and programs.
West Coast Region Indian tribes retain strong spiritual and cultural ties to marine and other aquatic resources including salmon and steelhead, based on thousands of years of use for tribal religious/cultural ceremonies, subsistence, and commerce. Many Pacific Northwest Indian tribes have treaties reserving their right to fish in “usual and accustomed” fishing places and include many species in addition to salmon and steelhead. These tribes are co-managers of the fishery resource in partnership with the states and federal government. They participate in management decisions including those related to hatchery production and harvest.