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 Conference
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.
Biological
Assessments
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.
The mission of the U.S. Fish and Wildlife Service is working with
others to conserve, protect, and enhance fish, wildlife, plants and
their habitats for the continuing benefit of the American people.
All images Credit to and Courtesy of the U.S. Fish and Wildlife Service unless specified otherwise.
Last updated:
November 1, 2012
