Endangered Species Act and Cellular Communication Tower Guidance in Arizona
The following comments are provided under section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1544) with regard to the addition to, or construction of, cellular communication facilities (cell towers) for a wireless communications carrier that will be an applicant for Federal Communications Commission (FCC) licenses.
Consultation in accordance with FCC rules implementing the National Environmental Policy Act (NEPA) and section 7 of the Endangered Species Act may be required for cell tower projects. You may have questions on whether the proposed projects may affect listed species or their critical habitat. The following guidelines address these issues and may be applicable to projects in Arizona.
The U.S. Fish and Wildlife Service’s (FWS) Arizona Ecological Services Field Office (AESO) sent a letter to the FCC dated June 28, 2001, that summarizes the appropriate procedures necessary for the review of proposed cell tower sites. The FCC is required under law to review proposed cell tower projects to determine if construction or operation of such facilities “may affect” federally listed species or designated critical habitat. If the FCC determines that a “may affect” situation exists with respect to one or multiple projects, then the FCC must either initiate formal consultation or seek written concurrence from the FWS that the proposed action is “not likely to adversely affect” federally listed species.
In a letter dated April 10, 2002 , from the FCC to the Director of the U.S. Fish and Wildlife Service, FCC designated “all FCC licensees, applicants, tower companies and their representatives” with non-Federal representative status (pursuant to 50 CFR §402.08) to represent them during informal consultation, but not formal consultation.
Is your project in an urban or otherwise developed area?
Cell tower projects that occur well inside urbanized areas are unlikely to affect listed species or critical habitat and would therefore be determined to have “no effect” under section 7 of the Endangered Species Act. This conclusion does not require written concurrence from our office and is generally the most applicable determination for these types of projects.
What does your project entail?
For the purposes of this guidance, the word “project” refers to all aspects of the installation, construction, and maintenance required for the set-up and operation of a cell tower facility, including, but not limited to, the tower or pole, equipment cabinets, access road(s), trenching, and fencing.
What is your determination?
Projects which involve only the following actions qualify for a “no effect” determination for federally listed species and critical habitat pursuant to section 7 of the Endangered Species Act and do not require coordination or consultation with the AESO:
1. Projects that do not involve new construction activities.
2. Construction of new tower projects that are co-located with an existing structure of substantial size (e.g., tower, power substation, smokestack, large building, water tank) and do not require the removal of vegetation.
3. Construction of new tower projects within and immediately adjacent to urbanized or developed areas (i.e., areas that do not support habitat that may be occupied by endangered, threatened, or proposed species both within the footprint of the construction and adjacent to the site).
4. Routine maintenance of existing tower sites, such as painting, antenna or panel replacement, upgrading of existing equipment, etc.
5. Repair or replacement of existing towers and/or equipment, provided such activities do not significantly increase the existing tower mass and height, or require the addition of guy wires.
Again, for projects that meet the above criteria, there is no need to contact this office for further project review. To document due diligence under section 7 of the Endangered Species Act with respect to such determinations, we recommend that you place a printed copy of this web page in the project file.
A “may affect, not likely to adversely affect” determination is appropriate when effects on federally listed species are expected to be discountable (i.e., unlikely to occur), insignificant (minimal in size), or completely beneficial. This conclusion requires written concurrence from the Fish and Wildlife Service.
For those proposed projects that do not meet the above criteria, particularly projects that involve clearing of vegetation, you should contact the FCC for further evaluation.
In an attempt to standardize the review of cell towers and other communication towers, the FWS has developed a set of voluntary interim guidelines, including a Tower Site Evaluation Form for your records. Please note that the evaluation form was developed from a Migratory Bird Treaty Act perspective, and although the evaluation form does not require the completion of items 5-18 if towers are not lighted or require guy-wires, this information is important from an Endangered Species Act perspective. These documents along with additional information may be reviewed and downloaded from the FWS’s Communications Tower website (http://www.fws.gov/habitatconservation/communicationtowers.html).
For efficiency and convenience purposes, our office web site, Arizona Ecological Service Field Office contains the lists of endangered, threatened, proposed, and candidate species potentially occurring in the county, or counties, where your projects occur. Besides the County Species List, our Document Library includes information by species such as the general distribution and range, habitat requirements, and other pertinent information for each species on the county list. Please note that your project area(s) may not necessarily include all or any of these species or their habitat. However, this information should assist you in determining which species may or may not occur within your project areas. Site-specific surveys could also be helpful and may be needed to verify the presence or reliably infer absence of a species or its habitat as required for the evaluation of proposed project-related impacts.
Lastly, for projects not located on tribal lands the AESO encourages you to involve the Arizona Game and Fish Department at (602) 789-3600 in any consultation regarding these projects. For projects located on tribal lands we encourage you to contact the appropriate tribal office (for a list of tribal contacts click here).
Migratory Bird Treaty Act
Please note this guidance does not authorize avian mortality for species that are protected under the Migratory Bird Treaty Act (MBTA) of 1918, as amended (16 U.S.C. sec. 703-712). If you believe migratory birds will be affected by this activity, we recommend you contact our Migratory Bird Permit Office [for projects occurring in Arizona, New Mexico, Texas, and Oklahoma: P.O. Box 709, Albuquerque, NM 87103, (505) 248-7882, or FW2_birdpermits@fws.gov]. For more information regarding the MBTA, please visit the following web sites: http://www.fws.gov/permits/mbpermits/birdbasics.html and http://www.fws.gov/migratorybirds/.
If we may be of further assistance, please feel free to contact:
Brenda Smith (928) 226-0614 (x101) for northern Arizona projects
Debra Bills (602) 242-0210 (x239) for central Arizona projects