Cooperating under NEPA
Description:
Section 7(a)(2) of the Endangered Species Act (ESA) requires Federal agencies to consult with NOAA Fisheries when any action they authorize, fund, or carry out may affect an ESA-listed species or designated critical habitat under NOAA Fisheries’ jurisdiction. ESA-listed species occur in the action area for the Ocean Wind project. The proposed action may affect these resources, therefore Section 7 consultation is required.
Milestones:
This target timeline is dependent on receipt of a consultation request from BOEM, consisting of a Biological Assessment, that considers effects of all proposed Federal actions. Receipt of the consultation request is set to coincide with receipt of the cooperating agency review draft of the EIS.
This date is dependent upon NOAA Fisheries receiving sufficient information from BOEM to deem the package complete and initiate the ESA consultation. This includes receipt of a complete final Biological Assessment (as an appendix to the DEIS), the proposed MMPA Incidental Take Authorization from NMFS, and the public availability of the DEIS. (Note that this date anticipates considerable coordination with BOEM on review of a draft BA). The Biological Assessment should be provided with the NOA of the DEIS, and no later than 60 days prior to this milestone date (i.e., the Biological Assessment is needed by July 14, 2022) to ensure the consultation can be initiated by the above milestone date. This milestone date is at least 60 days after the NOA for DEIS to allow adequate time to review the incoming materials and ensure receipt of complete information prior to initiation of consultation. This date is also set no sooner than 30 days before the proposed MMPA Incidental Take Authorization is scheduled to publish in the Federal Register to ensure that sufficient information on the proposed MMPA action is available when consultation is initiated.
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Monthly Status Report for April 2023:NOAA confirmed that this milestone was met on 4/3/23.
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Non-conformance Explanation:Information on new project activities and effects were submitted by BOEM after the ESA milestone 2 initiation date was complete. Additionally, the analysis of night time pile driving and unexploded ordnance issues and the review necessary to complete the Biological Opinion took longer than anticipated.
The final completion date is contingent upon NOAA Fisheries receiving sufficient information that NOAA Fisheries determines adequate to initiate ESA consultation. This date must be prior to issuance of the MMPA ITA Publication of Final Regulations (for a LOA) or MMPA Decision Rendered (if IHA). The target completion date is at least 150 days after the consultation initiation date (135 day regulatory timeline plus 15 days to allow for BOEM review of the draft Opinion). The target completion date is scheduled prior to the NOA for FEIS to allow incorporation of the findings of the consultation into the FEIS.