Section 7(a)(2) of the Endangered Species Act (ESA) requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure that actions they fund, authorize, permit, or otherwise carry out will not jeopardize the continued existence of any listed species or adversely modify designated critical habitats. Federal agencies are not required to contact the Service if a proposed action will have no effect on listed species, or if no species are present in the action area. However, Federal agencies must initiate consultation with the Service if a proposed action may affect one or more listed species. For more information see the Service's national consultation web page.
The following are a list of frequently asked questions pertaining to Section 7 consultations. Click on a link below to find more information on each topic.
Will the Austin Office concur with "no effect" determinations?
Section 7 (a)(2) of the Endangered Species Act (ESA) requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure that actions they fund, authorize, permit or otherwise carry out will not jeopardize the continued existence of any listed species or adversely modify designated critical habitats. Federal agencies must initiate consultation with the Service if a proposed action may affect one or more listed species. In addition, the Service provides review of non-Federal actions that may affect federally listed species or their habitats as technical assistance to help non-Federal project proponents ensure compliance with the ESA. The may affect determination is made by the Federal action agency or non-Federal project proponent.
Federal agencies are not required to contact the Service if a proposed action will have no effect on listed species, or if no listed species are present in the action area. Thus, no further ESA consultation or coordination is necessary for projects where the Federal action agency or non-Federal project proponent has determined that proposed project activities will have no effect on federally listed species. Service concurrence with a no effect determination is not required under the ESA and will not be provided by the Austin Field Office.
What are the appropriate determinations with respect to whether my project will or won't have an affect on listed species?
No effect – the appropriate determination when a project, as proposed, is anticipated to have no effects to listed species or critical habitat. A “no effect” determination does not require section 7 consultation; however, the action agency should maintain a complete record of their evaluation, including the steps leading to the determination of the effect, the qualified personnel conducting the evaluation, habitat conditions, site photographs, and any other related information.
May affect, but is not likely to adversely affect – the appropriate determination when a proposed action’s anticipated effects are insignificant, discountable, or completely beneficial. Insignificant effects relate to the size of the impact and should never reach the scale where “take” of a listed species occurs. “Take” is defined as harass, harm, pursue, hunt, shoot, wound, kill, capture or collect, or attempt to engage in any such conduct [ESA §3(19)]. In addition to the direct take of an individual animal, habitat destruction or modification can be considered take, regardless of whether it has been formally designated as critical habitat, if it would result in the death or injury of wildlife by removing essential habitat components or impairing essential behavior patterns, including breeding, feeding or sheltering (Code of Federal Regulations 50 §17.3). Discountable effects are those extremely unlikely to occur. Based on best judgment, a person would not be able to meaningfully measure, detect, or evaluate insignificant effects, or expect discountable effects to occur. This determination requires written concurrence from the Service. A biological evaluation or other supporting information justifying this determination should be submitted with a request for written concurrence.
May affect, is likely to adversely affect – the appropriate determination if any adverse effects to listed species or critical habitat may occur as a direct or indirect result of the proposed action, and the effects are not discountable or insignificant. If a “may affect, is likely to adversely affect” determination is made, the Federal action agency shall initiate the formal section 7 consultation process in writing to the address above.
Who can act as a non-federal representative in the consultation process?
Non-Federal representatives (i.e. consultants, state agencies, county or local officials) may request and receive species lists, prepare environmental documents, biological assessments, and provide information for formal consultations. However, the Service requires the action agency to designate the non-Federal representative in writing. If not designated, we recommend non-Federal representatives provide a complete record of their evaluation to the Federal action agency so that they may make a determination of effect and, if necessary, consult with the appropriate Service office on the proposed action.
The Service recommends the action agency and/or non-Federal representative maintain a complete record that identifies steps leading to the determination of effect, the qualified personnel conducting the evaluation, habitat conditions, site photographs, and any other related information.
Should I also contact the State of Texas if I'm impacting federally listed species?
The State of Texas protects certain species. Please contact the Texas Parks and Wildlife Department, Endangered Resources Branch, 4200 Smith School Road, Austin, Texas 78744 (telephone 512/389-8111) for information concerning fish, wildlife, and plants of State concern or visit their website at http://www.tpwd.state.tx.us/huntwild/wild/species/endang/index.phtml.
What if my project also affects migratory birds?
The Migratory Bird Treaty Act (MBTA) implements various treaties and conventions for the protection of migratory birds. Under the MBTA, taking, killing, or possessing migratory birds is unlawful. Migratory birds may nest in trees, brushy areas, or other areas of suitable habitat. The Service recommends activities requiring vegetation removal or disturbance avoid the peak nesting period of March through August to avoid destruction of individuals, nests, or eggs. If project activities must be conducted during this time, we recommend surveying for nests prior to conducting work. If a nest is found, and if possible, the Service recommends a buffer of vegetation remain around the nest until the young have fledged or the nest is abandoned. For additional information concerning the MBTA and recommendations to reduce impacts to migratory birds please contact the U.S. Fish and Wildlife Service Migratory Birds Office, 500 Gold Ave. SW, Albuquerque, NM 87102. A list of migratory birds may be viewed at http://www.fws.gov/migratorybirds/RegulationsPolicies/mbta/mbtintro.html.