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Final regulations issued last month by the National Marine Fisheries Services (NMFS) for protecting habitat of commercial fish species only marginally improve the permit review process for builders constructing homes in protected areas, according to the National Association of Home Builders (NAHB).
NMFS also failed to substantially change existing Essential Fish Habitat (EFH) designations for several species, like the Pacific salmon in the Northwest. Therefore, NAHB has said it will continue litigation began in 2001 against NMFS on this front.
The new rules clarify that permit consultations with NMFS are not binding, and they allow federal permitting agencies to combine those consultations with other existing environmental review processes. The regulations also clarify the options for conducting a general concurrence or programmatic consultation where activities are known to have little or no impact on essential fish habitat.
The Magnuson-Stevens Fishery Conservation and Management Act require NMFS to designate EFH for all commercially fished species under its jurisdiction. While these designations are limited to bodies of water, any federal action that reduces the quality or quantity of habitat must go through a consultation procedure with NMFS. Activities taking place in upland areas where a federal permit is needed can be affected if they have a potential impact on water designated as essential fish habitat.
If a builder needs a wetlands permit from the Army Corps of Engineers, for example, the Corps is required to consult with NMFS on that permit if it is determined that there could be an impact on essential fish habitat. NMFS can then suggest that mitigation be required as a condition of the permit, or recommend against the Corps issuing the permit. While these suggestions are not binding, the permitting agencies are likely to defer to NMFS as the agency with expertise on fisheries and fish habitat.
NAHB remains concerned about the potential for these regulations to substantially delay permits needed in regions with designated EFH. Currently, the focus has been on the habitat of the Pacific salmon. But there are hundreds of other commercially fished species for which essential habitat has not yet been designated.
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