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Endangered Species Act Section 7 Consultation (12-FD-c)

Information current as of 2020
Each lead federal agency (lead agency), must consult with the U.S. Fish and Wildlife Service (FWS) and/or NOAA Fisheries (the Services) if a federal action is likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat pursuant to Section 7 of the Endangered Species Act, 16 U.S.C. § 1536(a)(2). A “lead federal agency” is an agency with high degree of involvement or expertise in a project (e.g., it manages the land where a project takes place, provides a significant amount of financial assistance for a project, or has broad control over how a project may be designed). 50 C.F.R. § 402.07.


Important terms include:

  • A “federal action” means all activities or programs of any kind authorized, funded, or carried out in whole or in part by a federal agency (e.g., conducting exploratory drilling for a geothermal project, constructing a transmission line or implementing a solar project on agency managed land). 50 C.F.R. § 402.02.
  • An “endangered species” means any species which is in danger of extinction throughout all or a significant portion of its range. 16 U.S.C. § 1532(6)
  • A “threatened species” means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C. § 1532(20).
  • To “jeopardize the continued existence of” means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciable the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 50 C.F.R. § 402.02.
  • “Critical habitat” means specific areas within or outside a geographical location occupied by a listed species, which contain physical and biological features essential to the conservation of the species and which may require special management or protection. 16 U.S.C. § 1532(5).
  • “Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. 50 C.F.R. § 402.02
  • “Effects of the action” means the consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. 50 C.F.R. § 402.02.


Section 7 consultation may take on different forms, as described below:

Early Consultation

Early consultation is a prospective, optional process conducted between a lead agency, prospective developer (developer) and the Services, which is appropriate if the developer thinks that a federal action may affect listed species or critical habitat. A developer may initiate early consultation before filing an application for a federal permit or license by requesting that a lead agency enter into early consultation with the Services in writing. 50 C.F.R. § 402.11(a)-(b).

Informal Consultation

Informal consultation is an optional process conducted through discussions and correspondence between the Services and the lead agency and/or a designated non-federal representative to assist the lead agency in determining whether a proposed action may adversely affect listed species or critical habitat. A designated non-federal representative refers to a person designated by a lead federal agency as its representative to conduct informal consultation. A designated non-federal representative is typically a project developer (developer), but may also be a person, organization or agency agreed upon by the lead agency and developer. 50 C.F.R. § 402.02. A lead agency or designated non-federal representative may request informal consultation with the Services in the early stages of project planning. 50 C.F.R. § 402.11(a)-(b); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 3-1. Although informal consultation is an optional process, most consultations are conducted informally. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. 3-6.

Formal Consultation

Formal consultation is required if a federal action may affect a listed species or critical habitat unless the Services issue a written concurrence that a proposed action is not likely to adversely affect listed species or critical habitat following the conclusion of informal consultation. 50 C.F.R. § 402.14(a)-(b); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. 4-1.

Conferences

Conferences are an interagency cooperation process involving informal or formal discussions regarding the likely impacts of an action on species or critical habitat, which are proposed for listing, but not yet listed. An informal or formal conference is required if an action is likely to jeopardize the continued existence of a species proposed for listing or destroy or adversely modify critical habitat proposed for listing. 50 C.F.R. § 402.10(a)-(d); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. xi.



Endangered Species Act Section 7 Consultation Process


12-FD-c.1 – Designate a Non-Federal Representative (Optional)

A lead agency may designate a person, agency, or organization as a non-federal representative (designated non-federal representative) to conduct elements of early, informal or formal consultation and/or conferences (e.g., discussions within informal consultation or preparation of biological assessments) on their behalf. 50 C.F.R. §§ 402.02, 402.08, 402.12(a),(i),(k).

A designated non-federal representative is often the developer of a project. If the developer is not the designated non-federal representative, then the developer and the lead agency must agree on the designated non-federal representative. 50 C.F.R. §§ 402.02; 402.08; U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. xiii.

12-FD-c.2 – Request or Submit Species List

The lead agency or designated non-federal representative may either:

  • Request a list from the Services of any listed or proposed species or designated or proposed critical habitat that may be present in the project area; or
  • Provide the Services with a notification containing the species and critical habitat that may be included in a biological assessment if the Services determines that listed species or critical habitat are present in the project area.

50 C.F.R. § 402.12(c).

12-FD-c.3 – Provide Species List or Concur with Species List

Within 30 days of receiving the lead agency or designated non-federal representative’s request for a species list or proposed species list, the Services:

  • Advise the lead agency or designated non-federal representative in writing whether any listed species or designated critical habitat may be present in the project area;
  • Advise the lead agency or designated non-federal representative in writing whether any proposed species or critical habitat may be present in the project area; or
  • Concur with and/or revise the species list provided by the lead agency or designated non-federal representative; and
  • Provide a list of candidate species that may be present in the project area.

50 C.F.R. § 402.12(d).

Proposed species and critical habitat mean species and habitat which are proposed in the Federal Register to be listed or designated. 50 C.F.R. § 402.02. Candidate species refer to any species that are being considered by the Services for listing as endangered or threatened but are not yet listed or proposed. Although candidate species have no legal status and are not protected under the Endangered Species Act, their inclusion in the species list may alert a lead agency of potential proposed species or listings 50 C.F.R. § 402.12(d).

==12-FD-c.4 – May the project adversely affect proposed species or critical habitat? In addition to listed species, the lead agency may confer with the Service regarding actions which are likely to jeopardize the continued existence of any species proposed for listing or result in the destruction or adverse modification of proposed critical habitat. In this instance, the lead agency may engage in an informal consultation process. 50 C.F.R. § 402.10. For a detailed description of the informal conference process for species proposed for listing see element 12-FD-c.25.

12-FD-c.5 to 12-FD-c.6 – Are Listed Species or Critical Habitat Present in the Project Area?

If listed species or designated critical habitat are present in the project area, then the lead agency must conduct consultation with the Services. If no listed species or critical habitat are present in the project area, no further consultation is necessary. 50 C.F.R. § 402.11(a)-(b).

12-FD-c.7 – Is the Federal Action a Major Construction Activity?

If the federal action is a major construction activity, then the lead agency or designated non-federal representative must conduct a biological assessment. 50 C.F.R. § 402.11(a)-(b). A major construction activity is a “construction project (or other undertaking having similar physical impacts) which is a major federal action significantly affecting the quality of the human environment.” National Environmental Policy Act, 42 U.S.C. 4332(c).

12-FD-c.8 – Request Informal Consultation (Optional)

The lead agency or designated non-federal representative may request informal consultation with the Services if a federal action may affect listed species or designated critical habitat. Informal consultation is an optional process between the Services, the lead agency and/or the designated non-federal representative. Although the process is optional, most consultations with the Services are conducted informally. 50 C.F.R. §§ 402.13(a); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. 3-1.

Informal consultation is an unstructured process that includes phone contacts, meetings, conversations, letters, and any other documents relevant to the project including Biological Assessments (if conducted). Informal consultation can last if all parties are willing to participate. Documentation and records of informal consultation are essential to the process. The parties should compile an administrative file of records of phone contacts, meeting summaries, and any advice or recommendations provided by the Services. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. 3-1.

12-FD-c.9 – Conduct Biological Assessment

The lead agency must conduct a biological assessment to determine whether listed species and designated critical habitat are likely to be adversely affected by a federal action, or to form the basis of a Biological Opinion written by the Services. A Biological Opinion is a document that states the Services’ opinion as to whether a federal action is likely to jeopardize the continued existence of listed species. 50 C.F.R. § 402.12(a),(i),(k).

A lead agency or designated non-federal representative must complete a Biological Assessment within 180 days of initiation. A Biological Assessment may contain:

  • The results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally;
  • The views of recognized experts on the species at issue;
  • A review of the literature and other information;
  • An analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the result of any related studies;
  • An analysis of alternate actions considered by the federal agency for the proposed action.

50 C.F.R. § 402.12(a).

12-FD-c.10 – Submit Biological Assessment to FWS and/or NOAA Fisheries

The lead agency or designated non-federal representative must submit the completed Biological Assessment to the Services for review. 50 C.F.R. § 402.12(j).

12-FD-c.11 to 12-FD-c.12 – Review Biological Assessment for Completeness

The Services review the Biological Assessment for administrative and technical completeness.

12-FD-c.13 to 12 FD-c.14 – Written Concurrence

Within 30 days of receipt of the Biological Assessment, the Services must respond in writing to the lead agency or designated non-federal representative as to whether they concur with the findings of the biological assessment as to the potential effects of the action on listed species or critical habitat. 50 C.F.R. § 402.12(j). If the Services determine that the federal action is likely to adversely affect listed species or designated critical habitat, then the lead agency must initiate formal consultation. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. 3-12. If the Services determine that the federal action is not likely to adversely affect listed species or critical habitat, the Services issue a Written Concurrence, which completes informal consultation. The Written Concurrence contains an analysis of the action, based on review of all potential effects, direct and indirect on listed species and designated critical habitat. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 3-12. If the Services receive a written request for concurrence from the lead agency, the Services shall provide written concurrence or non-concurrence with the agency's determination within 60 days. This timeframe may be extended upon agreement of the Services, the Federal agency, and the applicant (if applicable), but shall not exceed 120 days total from the date of receipt of the Federal agency's written request. 50 C.F.R. § 402.13.

12-FD-c.15 – Early Consultation Certification (Optional)

A developer may submit an Early Consultation Certification to the lead agency to conduct early consultation if a prospective project may affect a listed species or critical habitat by providing a lead agency with a written certification that states that the developer:

  • Has a definite proposal outlining the action and its effects; and
  • If authorized, the developer will implement the proposal.

50 C.F.R. § 402.11(a)-(b).

Early consultation is a prospective, optional process conducted between a lead agency, developer and the Services. Early consultation is intended to reduce the potential for conflicts between listed species or critical habitat early and proposed actions. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 7-1.

12-FD-c.16 to 12-FD-c.17 – Review Early Consultation Certification for Completeness

The lead agency reviews the Early Consultation Certification for administrative and technical completeness.

12-FD-c.18– Early Consultation Request

The lead agency submits an Early Consultation Request to the Services to initiate early consultation. The Early Consultation Request must, at minimum, include the following information:

  • A description of the action;
  • A description of the specific area that may be affected by the action;
  • A description of any listed species or critical habitat that may be affect by the action;
  • A description of the manner in which the action may affect any listed species or critical habitat and analysis of any cumulative effects;
  • Relevant reports, including any Environmental Impact Statement, Environmental Assessment, or Biological Assessment; and
  • Any other relevant available information on the action, affected listed species, or critical habitat.

50 C.F.R. §§ 402.11(c)-(d); 402.14(c).

12-FD-c.19 – Conduct Early Consultation

The developer, lead agency, and the Services conduct the early consultation. Early consultation is conducted within 90 days unless the Services and/or lead agency agree to extend the consultation period. 50 C.F.R. §§ 402.11(c)-(d); 402.14(e).

12-FD-c.20 – Formal Consultation Initiation Package

The lead agency initiates formal consultation by submitting a Formal Consultation Initiation Package to the Services. A Formal Consultation Initiation Package must include:

  • A description of the proposed action, including any measures intended to avoid, minimize, or offset effects of the action. The description must provide sufficient detail to assess the effects of the action which includes:
    • The purpose of the action;
    • The duration and timing of the action;
    • The location of the action;
    • The specific components of the action and how they will be carried out;
    • Maps, drawings, blueprints, or similar schematics of the action; and
    • Any other available information related to the nature and scope of the proposed action relevant to its effects on listed species or designated critical habitat.
  • A map or description of all areas to be affected directly or indirectly by the federal action, and not merely the immediate area involved in the action;
  • Information obtained by or in the possession of the federal agency and any applicant on the listed species and designated critical habitat in the action area;
  • A description of the manner in which the federal action may affect any listed species or critical habitat and an analysis of any cumulative effects;
  • A summary of any relevant information provided by the developer, if available; and
  • Any other relevant available information on the effects of the proposed action on listed species or designated critical habitat, including any relevant reports such as EISs and EAs.

50 C.F.R. § 402.14(c); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. 4-4.


12-FD-c.21 to 12-FD-c.22– Review Formal Consultation Initiation Package for Completeness

The Services must review the Formal Consultation Initiation Package to determine if both all the information required by the regulations has been provided and if the information includes the best scientific and commercial data available. The Services may determine what project-specific information is needed to develop the Biological Opinion. 50 CFR §402.14(d). The Services must provide written acknowledgment of the consultation request, advise the lead agency of any data deficiencies and request any missing data within 30 working days of receipt of an initiation package.

12-FD-c.23 to 12-FD-c.24– Conduct Formal Consultation

Formal consultation is conducted by the Services to determine whether a federal action is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat. Formal consultations perform several functions including:

  • Identification of the nature and effects of the federal action on listed species and critical habitat;
  • Identification of reasonable and prudent alternatives;
  • Providing an exception of specified levels of incidental take;
  • Providing mandatory measures to minimize the impacts of incidental take to listed species;
  • Identifying how agencies can help conserve listed species or critical habitat; and
  • Providing an administrative record of effects on species that can help establish the species environmental baseline in future Biological Opinions. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, p. 4-1.

Formal consultation is "initiated" on the date the request is received, if the action agency provides all the relevant data required by 50 CFR §402.14(c). U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 4-6. The Services must complete the formal consultation within a 90-day period beginning on the date on which initiated. If the Services need more time to analyze the data or prepare the final opinion an extension may be requested by either party and both Services and the agency must agree to the extension. Extensions should specify a schedule for completing the consultation. If a developer is involved in the project, extension must follow the procedures outlined by section 7(b)(1)(B) of the ESA. A consultation involving a developer cannot be extended for more than 60 days without the consent of the developer. 50 C.F.R. § 402.14(e).

12-FD-c.25 – Request Informal Conference (Optional)

If any proposed species or proposed critical habitat are present in the project area, then the lead agency or the Services must initiate an informal conference. 50 C.F.R. § 402.12(d)(1). The conference will assist the Federal agency and any applicant to resolve potential conflicts at an early stage in the planning process.

12-FD-c.26 – Conduct Informal Conference

An informal conference between a Federal agency and the Service shall consist of informal discussions concerning an action at issue. Applicants may be involved in these informal discussions to the greatest extent practicable as most conferences are conducted informally. 50 C.F.R. § 402.10(a); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-1. Conferences are an interagency cooperation process conducted between a lead agency and the Services regarding the likely impact of a federal action on proposed species or proposed critical habitat. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-1. During the conference, the Services may assist the lead agency in:

Although not required, the Services encourage the lead agency to consider the effects on candidate species as well as proposed species, since candidate species may warrant future protection. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-1.

==12-FD-c.27 to 12-FD-c.28 – Is the Project Likely to Jeopardize or Destroy Proposed Species or Critical Habitat? If the Services determine that a federal action is likely to result in jeopardy of a proposed species or destroy or adversely modify proposed critical habitat, then the Services initiate a formal conference. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-2, 6-3. If the Services determine that a federal action is not likely to result in jeopardy of a proposed species or destroy or adversely modify proposed critical habitat, then the Services issue a Conference Report. A Conference Report may contain advisory recommendations for reducing effects to proposed species or critical habitat. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-1, 6-2, 6-3.

12-FD-c.29 –Submit Formal Conference Request

The Services initiate a formal conference by providing the lead agency with a Formal Conference Notice. The Formal Conference Notice typically takes the form of a memorandum or letter. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-2.

Note: The lead agency may also request a formal conference if it determines that a proposed action is likely to result in jeopardy of a proposed species or destroy or adversely modify proposed critical habitat. However, the Services have authority to determine whether a formal conference is appropriate. 50 C.F.R. § 402.10(d); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-2.

12-FD-c.30 – Conduct Formal Conference

The lead agency and the Services conduct a formal conference, which follows the same procedures as formal consultation. 50 C.F.R. § 402.10(d); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-2.

12-FD-c.31 – Formal Conference Opinion

At the end of formal consultation, the Services issue a Formal Conference Opinion, which has the same format and content as a Biological Opinion. A Biological Opinion is a document that states the opinion of the Service as to whether or not a federal action is likely to jeopardize the continued existence of a listed or proposed species or result in the destruction or adverse modification of designated or proposed critical habitat. 50 C.F.R. §§ 402.01; 402.10(d); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-2.

12-FD-c.32 to 12.FD-c.33– Is the Proposed Species or Habitat Subsequently Listed or Designated?

If, after the Formal Conference Opinion is issued, a proposed species is subsequently listed and/or a proposed habitat is designated as critical habitat, then the lead agency writes to the Services to request that the Formal Conference Opinion is confirmed as a Biological Opinion. 50 C.F.R. § 402.10(d); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-5.

12-FD-c.34 to 12-FD-c.35– Has the Conference Opinion been Confirmed as the Biological Opinion?

The Services must confirm or deny the Formal Conference Opinion as a Biological Opinion within 45 days after receipt of the lead agency’s request if no significant changes have occurred in the proposed action or the information used during the formal conference. 50 C.F.R. § 402.10(d); U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-5.

If significant changes have occurred in the proposed action or the information used during formal conference, then the lead agency must initiate formal consultation. U.S. Fish and Wildlife Service – Endangered Species Consultation Handbook, 6-6.

12-FD-c.36 – Draft Biological Opinion and Incidental Take Statement

Within 45 days after concluding early consultation, the Services must deliver a Draft Biological Opinion to the lead agency and developer.

Biological Opinion

A Biological Opinion “is the document that states the opinion of the Services as to whether or not the [project] is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” The Draft Biological Opinion is based upon the Biological Assessment and any other relevant reports and information the Services received in the Early Consultation Request. In forming the Biological Opinion, the Services may consider the proposed activities that will offset the effects of the action, regardless of any demonstration of binding plans for such proposed activities. 50 C.F.R. §§ 402.14 - 402.2. The Draft Biological Opinion must include:

  • A summary of the information on which the opinion is based;
  • A detailed discussion of the effects of the action on listed species or critical habitat; and
  • The Services’ Opinion on whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a Jeopardy Biological Opinion) or not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a no jeopardy biological opinion). A Jeopardy Opinion must include reasonable and prudent alternatives, if any exist. 50 C.F.R. §§ 402.11(e); 402.14(g)(5)-(h).

Incidental Take Statement

If the Services determines that a federal action may result in the incidental take of a listed species during early consultation, then the Services provide, along with the Biological Opinion, a statement concerning incidental take (Incidental Take Statement). An incidental take refers to a taking (e.g. capturing, killing, or pursuing a listed species) that results from, but is not the purpose of a federal action. 50 C.F.R. §§ 402.02; 402.11(e); 402.14(j).

An Incidental Take Statement:

  • Specifies the impact of the incidental take on the species;
  • Specifies reasonable and prudent measures that may minimize such impact;
  • Sets forth terms and conditions, including reporting requirements, that must be complied with; and
  • Specifies the procedures to be used to handle or dispose of any species taken.

50 C.F.R. §§ 402.11(e); 402.14(i). Takes will only be covered by the incidental take statement if they:

  • Are not likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat;
  • Result from an otherwise lawful activity; and
  • Are incidental to the purpose of the project.

ESA Consultation Handbookp. 4-48. If the Services determine that the project is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat, the Biological Opinion is referred to as a “Jeopardy Biological Opinion.” Jeopardy Biological Opinions indicate that the agency will violate section 7(a)(2) of the ESA if the project proceeds without modification. The Jeopardy Biological Opinion recommends reasonable and prudent alternatives (if possible) that, if complied with, allow the agency to avoid violation of the ESA.

12-FD-c.37 – Review Draft Biological Opinion and Incidental Take Statement

The Services, the agency, and the developer must discuss the review and evaluation conducted during formal consultation, the basis for any finding in the Biological Opinion, and the availability of reasonable and prudent alternatives (if a Jeopardy Biological Opinion is issued) that lead agency and developer can take to avoid violating of section 7(a)(2) of the ESA. The Services should develop reasonable and prudent alternatives in conjunction with the lead agency. After the draft biological opinion and draft incidental take statement are complete, the lead agency may request copies for review. Both the developer and the lead agency may comment on the drafts and submit comments to the Services. The Services will not issue the Final Biological Opinion prior to the 135-day deadline or any extension while lead agency reviews the draft. 50 C.F.R. § 402.14(g)(5).

12-FD-c.38 – Final Biological Opinion and Incidental Take Statement

Once comments are received from the agency and the developer, the Services finalize the biological opinion. The Services may seek an extension in order to make any clarifications or modifications necessitated by the comments. Once complete, the Final Biological Opinion and incidental take statement are delivered to the lead agency. ESA Consultation Handbook p. 4-7. After the issuance of a Biological Opinion, the agency must determine “whether and in what manner to proceed with the [project] in light of its section 7 obligations and the Service's biological opinion.” If the Services issue a Jeopardy Biological Opinion, the lead agency must notify the Services of its final decision on the project. 50 C.F.R. § 402.15(a)-(b).


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