Cooperating under NEPA
Description:
Section 305(b)(2) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) requires federal agencies to consult with NOAA Fisheries on any action or proposed action that may adversely affect Essential Fish Habitat (EFH). EFH exists throughout all the coastal and offshore areas affected by the Empire Wind project and associated transmission system. The proposed action may adversely affect these resources, therefore EFH consultation is required. Based on anticipated adverse impacts to EFH, an expanded consultation will be required. The final consultation completion date is contingent upon NOAA Fisheries receiving sufficient information to initiate EFH consultation. Also note that NMFS has authorities under the Fish and Wildlife Coordination Act for this project. NMFS expects the coordination and consultation under the Fish and Wildlife Coordination Act to be concurrent with the EFH consultation.
Milestones:
This reflects the anticipated date of receipt of initial EFH Assessment from BOEM and reflects the beginning of the cooperating agency review for the DEIS. EFH consultation request is set to be concurrent with receipt of the preliminary DEIS for cooperating agency review. Meeting this milestone target date is contingent upon NOAA Fisheries receiving an EFH Assessment from the lead agency by the date provided.
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Environmental Impact Statement (EIS)
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Official Notice of Availability of a Draft EIS published in the Federal Register (FR) beginning both the public comment period and concurrent CAA Section 309 Review (Agency Action)
- Completed Date: 11/18/2022
Issuance of EFH Conservation Recommendations is dependent upon the magnitude of adverse effects and the extent to which BMPs abate those adverse effects. NMFS has approximately 90 days from the date consultation is initiated to provide EFH Conservation Recommendations. BOEM has agreed to provide additional time (over the statutory 60 days) due to the anticipated number of overlapping projects.
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Non-conformance Explanation:BOEM notified NMFS that there were changes to the project that necessitated a revised EFH Assessment on 6/13/23, which was within the 30-day lockout for making changes to the final EFH Milestone. The revised EFH Assessment was received on 7/5/23, and the final EFH Milestone date was 7/12/23, so there was not enough time to issue the conservation recommendations and nonconformance was triggered. The final milestone was extended to 8/4/23 due to receipt of revised information.
Issuance of EFH Conservation Recommendations is dependent upon the magnitude of adverse effects and the extent to which BMPs abate those adverse effects. NMFS has 90 days from the date consultation is initiated to provide EFH Conservation Recommendations. BOEM has agreed to provide additional time (over the statutory 60 days) due to the anticipated number of overlapping projects.
Additional Milestones:
BOEM informed NMFS on 6/13/23 that there were project changes that necessitate a revised EFH Assessment. BOEM submitted a revised EFH Assessment on 7/5/23, and NMFS determined the Assessment complete on the same date. The final milestone for issuance of conservation recommendations will now be 8/4/23 instead of 7/12/23.