Bulk Transmission Biological Resource Assessment Overview (12)
Federal and state laws protect certain biological resources from particular impacts. Each project is required to assess the impacts it may have on protected flora and fauna as well as impacts on their habitat.
Vegetation and topsoil removal during facility construction, including the development of associated access roads, parking areas, transmission lines, can lead to loss of wildlife habitat, reduction in plant diversity, potential for increased erosion and the potential for the introduction of invasive or noxious weeds. Indirect impacts to vegetation could increase deposition of dust, spread of invasive or noxious weeds, and the increased potential of wildfires. In addition, adverse impacts to wildlife could occur during construction from:
- Erosion and runoff;
- Fugitive dust;
- Introduction and spread of invasive vegetation;
- Modification, fragmentation, and reduction of habitat;
- Exposure to contaminants; and
- Interference with behavior activities.
Wildlife would be most affected by habitat reduction within the project site, access roads, canals, and pipeline and transmission right-of-ways. Wildlife within surrounding habitats might also be affected if the construction activity (and associated noise) disturbs normal behaviors, such as feeding and reproduction.
Typically developers must consider: species listed under the federal Endangered Species Act, or designated as “candidates” for federal listing; migratory birds protected by the Migratory Bird Treaty Act; eagles protected by the Bald and Golden Eagle Protection Act; mammals protected by the Marine Mammal Protection Act; and any protected habitat. These species are protected because they offer rare qualities or adaptations that complete the native ecosystem.
State level protections may be even more stringent, protecting species and habitat not protected under federal law. It is critical to consult with area experts early in order to determine whether a conflict with protected biological resources can be avoided by choosing an alternative site for development. It may also be helpful to determine a time of year for development that does not conflict with wildlife.
Biological Resource Assessment Overview Process
12.1 – Conduct Preliminary Screening to Identify Potentially Affected Biological Resources
Developers should use some mechanism to conduct a preliminary screening that identifies biological resources that may be affected by the project. For example, the Western Governors' Association (WGA website) has a Crucial Habitat Screening Tool (CHAT), available at the CHAT website. While not mandatory, this step can help identify major biological issues at the outset that could critically affect the project. In addition, conducting a preliminary screening can support a finding that subsequent biological surveys are unnecessary, although the Fish and Wildlife Service (FWS) must concur.
12.2 – Conduct Biological Assessment as Needed to Identify Potentially Affected Biological Resources
By regulation, a biological assessment is prepared for "major construction activities" considered to be federal actions significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). A major construction activity is a construction project or other undertaking having similar physical impacts, which qualify under NEPA as a major federal action. Major construction activities include dams, buildings, pipelines, roads, water resource developments, channel improvements, and other such projects that modify the physical environment and that constitute major federal actions. As a rule of thumb, if an Environmental Impact Statement is required for the proposed action and construction-type impacts are involved, it is considered a major construction activity.
A biological assessment is required if ESA listed species or critical habitat may be present in the action area of a major construction activity. It is optional if only proposed species or proposed critical habitat is involved. However, if both proposed and listed species are present, a biological assessment is required and must address both proposed and listed species if the action agency determines the action is likely to jeopardize the proposed species or adversely modify/destroy proposed critical habitat. An assessment may be recommended for other activities to ensure the agency's early involvement to increase the chances for resolution during informal consultation.
12.3 – Supply Species List
Upon written request, the Fish and Wildlife Service and/or the NOAA Fisheries (NOAA Fisheries), also known as the National Marine Fisheries Service (NMFS), must provide the developer with a list of ESA-listed resources within the action area.
12.4 to 12.5 – Is there Potential for the Activity to Take Migratory Birds or Eggs?
The developer should consult with the FWS to determine the presence of migratory birds and habitats that could potentially be impacted by the proposed activities for birds of conservation concern.
A list of bird "Species of Concern" identified by the US FWLS Migratory Bird Program Strategic Plan 2004-2012 can be found as an attachment to BLM's Instruction Memorandum.
In addition, although not currently mandated by law – the FWS is also using a similar assessment and permit process where the project may result in the taking of bats. Thus, developers with projects in areas that may result in the taking of bats are encouraged to consult with the FWS. For more information, see:
12.6 to 12.7 – Are there Any Bald or Golden Eagle Activities Present at the Project Location?
If the proposed project location contains a nesting or wintering bald or golden eagle, then the developer will be required to obtain a Bald & Gold Eagle Permit. In addition, any evidence of bald or golden eagle activities at the project location will likely require a Bald and Golden Eagle Permit. For more information, see:
12.8 to 12.9 – Is There Potential for the Activity to Impact Essential Fish Habitat (EFH)?
Where the project could impact fish habitat designated by NOAA Fisheries (also known as the National Marine Fisheries Service (NMFS)) as Essential Fish Habitat, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the authorizing agency is required to submit an Essential Fish Habitat (EFH) Assessment to NOAA Fisheries.
The Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 1996, established procedures to require federal agencies to identify, conserve, and enhance EFH for species regulated under a Fisheries Management Plan (FMP). Under the Magnuson-Stevens Act, federal agencies must consult with the NOAA Fisheries on all “federal actions” including, all actions proposed, authorized, funded, or undertaken, that may adversely affect EFH (16 U.S.C. § 1855).
NOAA Fisheries is the federal agency responsible for the management, conservation, and protection of the Nation’s marine and anadromous species. Anadromous species are those species of fish which spawn in fresh or estuarine waters and migrate to ocean waters. Salmon and other ecologically and economically important migrating fish species, such as shad and sturgeon, need access to freshwater habitat for spawning and rearing their young. Some fish need to swim thousands of miles through oceans and rivers to reach their destination.
The EFH Guidelines (50 CFR 600.05 to 600.930) outline the process for federal agencies, NOAA Fisheries, and the Fishery Management Councils to satisfy the EFH Consultation requirement under Section 305(b) of the Magnuson-Stevens Act. As part of the EFH Consultation process, the federal agencies must prepare a written EFH Assessment (EFHA) describing the effects of that action on EFH (50 CFR 600.920(e)(1)).
12.10 to 12.13 - Is there Potential To Impact Marine Mammals or Their Habitats?
The Marine Mammal Protection Act of 1972 (MMPA), as amended (USC 1361 et seq.), prohibits, with certain exceptions, the taking (e.g., harassment, injury, or killing) of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the U.S.)
Sections 101(a)(5)(A) and (D) of the MMPA may allow for the authorization of the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. An authorization for incidental takings shall be granted if the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsidence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth.
The FWS has jurisdiction over species such as manatees, sea otters, polar bears, and Pacific walruses. The NOAA Fisheries has jurisdiction over most other marine mammal species, including pinnipeds other than those under the jurisdiction of the FWS (seals, sea lions), and all cetaceans (porpoises, dolphins, and whales).
The developer should contact the appropriate FWS or NOAA Fisheries office to discuss conclusions and obtain guidance in preparation of a request for incidental take authorization. For more information, see:
12.14 to 12.17 – Are There Federal Listed Species or Critical Habitats?
Under the Endangered Species Act, the term ‘‘endangered species’’ means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man. Endangered Species Act, 16 U.S.C § 1532 (6). A “threatened species” means a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. For the most part, terrestrial or land-based species are under the jurisdiction of FWS, and marine species and anadromous fish are mostly under the jurisdiction of NOAA Fisheries.
Under Section 7 of the Endangered Species Act, federal agencies are required to ensure that any actions they undertake do not jeopardize the existence of any listed species, or destroy or adversely modify designated critical habitat of such species. If a listed species or critical habitat may be present and affected, the agency must provide the NOAA Fisheries or the Fish and Wildlife Service with an evaluation on the likely effects of the action on species that may be adversely affected. The ESA Section 7 consultation requirements apply to development projects that have a federal nexus. Examples of actions that constitute a federal nexus include:
- Action on federal land;
- Actions that require a federal permit or license; and
- Actions using federal funds.
If the proposed project does constitute a federal nexus, the developer should initiate the ESA Section 7 Consultation process. For more information, see:
If the proposed project does not constitute a federal nexus, the developer may be required to obtain an ESA Section 10 Take Permit. For more information, see:
12.18 – Consult Lead Agency to Determine if there Are Other Biological Concerns
Even where there is seemingly no potential for the project to affect migratory birds, bald or golden eagles, marine mammals, federally listed species or critical habitats, developers should consult with the lead agency, either FWS or NMFS, to ensure that the project does not pose a threat to any other biological resources as mandated by law or regulation.
12.19 to 12.21 – Does the Project Require Other State Biological Resource Approvals?
A developer may need to obtain of number of state-level approvals regarding state biological resources and their habitat. A developer may need to comply with state endangered and threatened species protections, water resources regulations, and other state biological resource protection measures.
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