Section 7 of the Endangered Species
Act (Act) outlines procedures for interagency cooperation to conserve
federally listed species and designated critical
habitats. Section 7(a)(1) requires
federal agencies to use their authorities to further the conservation of listed
species. This section of the Act makes it clear that all federal agencies
should participate in the conservation and recovery of listed threatened and
endangered species. Under this provision, federal agencies often enter
into partnerships and Memoranda of Understanding with the Fish and Wildlife
Service (Service) for implementing and funding conservation agreements,
management plans, and recovery plans developed for listed species. Section
7(a)(2) requires federal agencies to consult with
the Service to ensure that they are not undertaking, funding, permitting, or
authorizing actions likely to jeopardize the continued existence of listed
species or destroy or adversely modify designated critical habitat. In
fulfilling these requirements, each agency must use the best scientific and
commercial data available. This section of the Act defines the
consultation process, which is further developed in regulations promulgated at 50
CFR § 402. Section 7 also establishes the requirement to conduct conferences
on proposed species, allows applicants
to initiate early consultation, and establishes procedures for seeking
exemptions from the requirements of section 7(a)(2) from the Endangered Species
Committee.
The consultation process
begins when a federal agency or designated
non-federal representative requests a species list from the Service, or the
verification of a species list by the Service, or when it is determined that a
discretionary federal action may affect a listed species or critical
habitat. Most consultations are conducted informally with the federal
agency or a designated non-federal representative. Informal consultation
is an optional process that includes all discussions and correspondence between
the Service and a federal agency or designated non-federal representative,
prior to formal consultation, to determine whether a proposed
federal action may affect listed species or critical habitat. This
process allows the federal agency to utilize the Service’s expertise to
evaluate the agency’s assessment of potential effects or to suggest possible
modifications to the proposed action which could avoid potentially adverse
effects. Informal consultation ends when the federal agency determines
that the action would have no effect on listed species or critical habitat or
it is determined that the action is not likely to adversely affect listed
species or critical habitat and written concurrence of this determination is
provided by the Service.
Click here
to view the Informal Consultation Process flowchart.
Section 7(a)(4) of the Act
provides a mechanism for identifying and resolving potential conflicts between
a proposed action and proposed species or proposed critical habitat at an early
planning stage. While a consultation is required when a proposed action
may affect listed species or critical habitat, a conference is required only
when the proposed action is likely to jeopardize the continued existence of a
proposed species or destroy or adversely modify proposed critical
habitat. However, federal action agencies may request a conference on any
proposed action that may affect proposed species or proposed critical
habitat. The Service also can request a conference after reviewing
available information suggesting a proposed action is likely to jeopardize
proposed species or destroy or adversely modify proposed critical
habitat. When both listed and proposed listed species
or designated and proposed designated critical habitats are affected by
a proposed action, the action agency could include an assessment or evaluation
of potential effects to the proposed species or proposed critical habitat
during the consultation.
The main focus of the
consultation is the biological assessment or biological evaluation.
Section 7(c)(1) of the Act requires federal agencies to prepare a biological
assessment if any listed species may be present in the action
area or for major construction activities, which are 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.). The contents of the biological assessment are
discretionary, but should include all necessary information to determine the
likelihood of the presence of listed species (on-site inspections, habitat
surveys, literature review, etc.), an analysis of all potential effects
(including direct, indirect, and cumulative
effects) to listed species, and a determination of the proposed actions
effects to listed species.
The effect determination
should be a logical resolution justified by the analysis and consist of one of
three choices: 1) no effect, 2) is not likely to
adversely affect, and 3) is likely to adversely affect. A "no
effect" determination is suitable for those actions that are anticipated
to have no adverse effects to listed species or critical habitat.
An "is not likely to adversely affect" determination is the
appropriate conclusion when effects on listed species or critical habitat are
expected to be discountable, insignificant,
or completely beneficial. An "is not likely to adversely
affect" determination requires written concurrence from the Service.
An "is likely to adversely affect" determination is the appropriate
conclusion if any adverse effect to listed species of critical habitat may
occur as a direct or indirect result of a proposed action or its interrelated
or interdependent actions, and the effect is not:
discountable, insignificant, or beneficial. An "is likely to
adversely affect" determination requires formal consultation.
Federal agencies are not
required to prepare a biological assessment for actions that are not major
construction activities, however, if the action "may
affect" listed species or critical habitat, the agency must provide
the Service with an account of the basis for evaluating the likely effects of
the action. This documentation is necessary for the Service to decide if
concurrence with the agency’s determination is warranted. For this
reason, the Service recommends a biological evaluation be prepared for all
actions that are not major construction activities, but that may affect listed
species or critical habitat and Service concurrence is required. A
biological evaluation should follow the same guidelines as a biological assessment
and include all relevant information for justifying the effect
determination. For those evaluations that conclude that no effects to
listed species or critical habitat are anticipated, section 7 consultation is
not necessary.