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Resources to guide and assist with Endangered Species Act Sec. 7 consultations in emergency situations.

Endangered Species Act Emergency Consultations - Southeast

The Fish and Wildlife Service is ready to offer our assistance in helping you to comply with section 7 of the Endangered Species Act (ESA) of 1973, as amended, during emergencies. Section 7 Section 7
Section 7 Consultation The Endangered Species Act (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. Section 7 of the Act, called "Interagency Cooperation," is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species.

Learn more about Section 7
regulations recognize that a Federal action agency’s response to an emergency may require expedited consultation and such provisions are provided (50 CFR 402.05).

§ 402.05 Emergencies.

(a) Where emergency circumstances mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedures that the Director determines to be consistent with the requirements of sections 7(a)-(d) of the Act. This provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.

(b) Formal consultation shall be initiated as soon as practicable after the emergency is under control. The Federal agency shall submit information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered or threatened species and their habitats. The Service will evaluate such information and issue a biological opinion including the information and recommendations given during the emergency consultation.

During emergency events, the primary objective of the responding agency must be to protect human life and property and this objective takes precedence over considerations for minimizing adverse effects to listed species under the ESA.

The protection of listed species and designated critical habitat is initiated when it would not interfere with the emergency response to protect human life and property. Consequently, the first action is to initiate a response to the emergency and then to determine if there are actions that can be taken to protect or reduce effects to listed species.

The ESA process for handling emergencies follows:

  • STEP 1, Initiating Contact -  During any emergency response, the Federal agency will contact the Fish and Wildlife Service (Service) by telephone or email (as quickly as possible following the onset of the emergency). Hopefully, the responding agency would have previously established a list of emergency contacts that includes the appropriate Service office responsible for the area where the emergency exists. The Federal agency will provide the Service the project location, a description of the emergency response action and timelines.
  • STEP 2, Service Recommendations - During this initial contact, the Service will recommend actions that may be implemented to minimize the impacts to any listed species or critical habitat in the area. The emergency response agency will proceed with all necessary actions to stop the imminent threat to human life or property. After the initial contact (and within 48 hours, if possible), the Services should send written record of the initial contact to the Federal action agency. This provides the Services and the requesting Federal action agency an accurate record of the contact, including any recommendations or advice regarding reducing effects to listed species or critical habitat.
  • STEP 3, Service Evaluation - The Service will continue to evaluate the emergency. If this evaluation indicates that the emergency response procedures may result in jeopardy/adverse modification, and no means of reducing or avoiding this impact are available, the Service will advise the responding agency of this, and document this conclusion*. The action agency will not stop or delay their emergency response because of this notification. In such a situation, the Federal agency and the Service will discuss actions to remediate the effects following conclusion of the emergency.
  • STEP 4, Emergency Over - Once the emergency is under control, the action agency will identify any effects to listed species or critical habitat or incidental take of a species that resulted from the emergency response action and initiate consultation. This consultation follows standard procedures, includes a description of what action the agency took to respond to the emergency, and identifies the final impacts to listed species.
  • STEP 5, Consultation Completed - The Service will prepare an after-the-fact concurrence letter or biological opinion. With the finalization of the concurrence letter or biological opinion, the action agency has completed their compliance with the ESA.

* Questions often come up from practitioners regarding consultation in Presidentially declared disaster areas. Section 7(p) of the ESA addresses situations where the Service has determined in a biological opinion an action is likely to jeopardize listed species or destroy or adversely modify critical habitat in a Presidentially declared disaster area. However, section 7(p) does not exempt actions in Presidentially declared disaster areas from section 7(a)(2) of the ESA and the implementing regulations.

The compliance with the ESA for an emergency action only requires a short telephone call at the beginning of the emergency. After that, the response agency does not have to contact the Service until the emergency is over. We are currently working with Federal agencies to provide technical assistance, coordination, and, in some instances, section 7 consultation for proactive projects to reduce the need for contacts prior to emergency events. These efforts will eliminate the need for the Federal agency to contact the Service following the onset of an emergency response activity because we will have already provided them with needed species information and the means to avoid or minimize adverse affects to listed species/critical habitats. In these situations, the Federal agency will only contact the Service after the emergency is over.

In addition to the documents below, these links may help with consultation needs during an emergency:

For further questions, we encourage agencies and the public to contact the field office in the state where their response is located. For consultation on multi-state projects or if you simply need additional information, you may contact southeastern regional review staff, listed below.