Consultation Process Overview
Section 7 of the Endangered Species Act requires federal agencies to ensure that their actions do not jeopardize the continued existence of listed species. To comply with section 7, the consulting Federal agency or its designated non-federal representative must review the proposed project for potential impacts to federally protected species. Informal consultation provides an opportunity for the action agency and the Service to explore ways to modify the action to reduce or remove adverse effects to the species or critical habitat.
This process typically starts with a request for listed species that may be in the action area. Based on its analysis, the Federal agency makes one of three determinations of effect for listed species:
“No effect” is the appropriate conclusion if the proposed action will not affect listed species. If a “no effect” determination is made, the Federal agency is not obligated to contact the Service for concurrence, and informal consultation ends.
“Is not likely to adversely affect” is the appropriate conclusion when effects to listed species are expected to be discountable, insignificant, or completely beneficial. If a “not likely to adversely affect” determination is made, the Federal agency must contact the Service for written concurrence.
“Is likely to adversely affect” is the appropriate conclusion if any adverse effect (including take of an individual) to listed species may occur as a direct or indirect result of the proposed action or its interrelated or interdependent actions. If a determination of “is likely to adversely affect” is made, the Federal agency must initiate formal consultation with the Service.
Formal consultation is a process in which the Service assesses the action’s potential to jeopardize the listed species, to result in the destruction or adverse modification of critical habitat, or to result in incidental take of a listed species. Formal consultation concludes when the Service issues a biological opinion. For the purposes of section 7, “action area” means all areas to be affected directly or indirectly by the proposed action, not merely the immediate area involved in the action (i.e. project footprint).
Informal consultation concludes when a determination of “no effect” is made, when the Service concurs with a “not likely to adversely affect” determination, or when the action agency initiates formal consultation.