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Section 7 Consultation
A Brief Overview
The Endangered Species Act of 1973 (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 continued existence of any listed species.
Under Section 7, Federal agencies must consult with the U.S. Fish and Wildlife Service (Service) when any action the agency carries out, funds, or authorizes (such as through a permit) may affect a listed endangered or threatened species or designated critical habitat. In the early stages of project planning, Federal agencies can request technical assistance from the Service. Discussions between the two agencies may include what types of listed species may occur in the proposed action area, and what effect the proposed action may have on those species. Agencies may use the Service's Information for Planning and Consultation website to get a list of species and critical habitats that may be present in the action area.
When a Federal agency determines, through a biological assessment or other review, that its action is likely to adversely affect a listed species, the agency submits to the Service a request for formal consultation. During formal consultation, the Service and the agency share information about the proposed project and the species or critical habitat likely to be affected. Formal consultation may last up to 90 days, after which the Service will prepare a biological opinion. The conclusion of the biological opinion will state whether the Federal agency has insured that its action is not likely to jeopardize the continued existence of a listed species and/or result in the destruction or adverse modification of critical habitat. The Service has 45 days after completion of formal consultation to write the opinion.
To reach a conclusion in its biological opinion, the Service begins by looking at the current status of the species. It then considers the likely consequences of the proposed Federal action in addition to any effects to the species or critical habitat of non-Federal actions that are reasonably certain to occur in the action area.
'Jeopardize the Continued Existence of'
Federal agencies may not fund, authorize or carry out actions unless they ensure that those actions are not likely to jeopardize the continued existence of listed species. ‘Jeopardize the continued existence of’ means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution.
Critical Habitat Destruction or Adverse Modification
Section 7 also mandates that federal agencies must insure that their actions do not result in the destruction or adverse modification of critical habitat. Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.
Alternatives and Incidental Take
When a Federal agency has not insured that its action is unlikely to avoid jeopardizing listed species or to result in the destruction or adverse modification of critical habitat, it may provide the Federal agency with reasonable and prudent alternative actions. These alternatives are often developed with input and assistance from the Federal agency. Alternatives must:
- be consistent with the purpose of the proposed project
- be consistent with the Federal agency’s legal authority and jurisdiction
- be economically and technically feasible
- in the Service’s opinion, would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.
Often, an action is reasonably certain to result in the incidental take of a species, but is not likely to jeopardize its continued existence. When this happens, the Service provides the Federal agency with an incidental take statement with the biological opinion. The anticipated incidental take is not subject to the take prohibitions of the ESA as long as the Federal agency or applicant implements the terms and conditions provided in the incidental take statement.