Asheville Field Office Project Review Guide

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Overview

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 of the Endangered Species Act (ESA) requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure their activities - permitting, funding, implementation, etc. - don’t jeopardize the continued existence of threatened or endangered species (a.k.a. listed species, because they’re on the federal threatened and endangered species list) or adversely modify critical habitat.

This guide walks federal agency staff or their designees through that consultation process, helping you create the appropriate documentation – a biological assessment or evaluation – to submit to the Service in fulfillment of ESA obligations.

Before you begin

Geographic coverage - This guide is only valid for the areas serviced by the Asheville Field Office, an area that includes the following North Carolina counties: Alexander, Alleghany, Anson, Ashe, Avery, Buncombe, Burke, Cabarrus, Caldwell, Catawba, Cherokee, Clay, Cleveland, Davidson, Davie, Forsyth, Gaston, Graham, Haywood, Henderson, Iredell, Jackson, Lincoln, Macon, Madison, McDowell, Mecklenburg, Mitchell, Polk, Rowan, Rutherford, Stanly, Stokes, Surry, Swain, Transylvania, Union, Watauga, Wilkes, Yadkin, and Yancey. For other North Carolina counties, contact the Service’s Raleigh Field Office.

Roles and responsibilities during the consultation process - The Endangered Species Act defines consultations process obligations for federal agencies (including their designees for this process) and the Service:

• The federal action agency or their designee – Describe the project; identify the action area action area
  All areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action.
  
  Learn more about action area ; identify the species and critical habitat present within the action area; describe how the project, as planned, may impact those species or habitats; reach an effect determination for the project, i.e. an official conclusion on the impact the project will have on listed species.
• The U.S. Fish and Wildlife Service – Review material submitted by the action agency to ensure completeness; evaluate any effect determination and provide concurrence as appropriate; determine whether the project will jeopardize a species or adversely modify critical habitat; offer reasonable and prudent measures to decrease negative impacts if the project will jeopardize a species or adversely modify critical habitat; authorize an appropriate amount of incidental take (harassment, harm, wounding, killing, etc.) of a listed species based on the project description and species present.

Timelines - Projects are reviewed on a first-come, first-served basis, so please plan accordingly. Our timelines:

• We respond to project review requests within 30 days.
• For projects that may affect but aren’t likely to adversely affect a listed species, we complete review (i.e., informal consultation) within 60 days of receiving a complete biological assessment or evaluation.
• For projects that are likely to adversely affect a listed species, we complete review (i.e., formal consultation) within 135 days of receiving a complete biological assessment or evaluation.

Important notes - Fundamental to quickly and successfully completing project review under Section 7 of the ESA is explaining how you reached your conclusions and including in your biological assessment or biological evaluation a thorough description of the information you used and the reasoning that led to your conclusions.

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Step 1: Describe the action

To determine how your project may interact with listed or proposed species and their habitats, a detailed account of all project elements is necessary, including:

• Project purpose.
• The federal agency involved and their role.
• Maps with enough detail to discern project boundaries and action area (see Step 2 for additional information about action area). Such maps should include but are not limited to: vicinity map with address and latitude/longitude in decimal degrees; property boundary or parcel maps; aerial and topographic maps; site plans – plan view, typical cross-sections, and engineering specifications. SHP or KML files are appreciated.
• Site preparation, including earth moving or tree clearing with acreages and timing.
• Construction steps and methods, including equipment, materials, description of percussive activities, use of lighting (type, location, etc.); project timing (time of year, time of day or night, etc.).
• Any project-associated remediation or restoration work.
• Project and permitting timelines.
• Long-term operation and maintenance activities (mowing, herbicide use, etc.).
• Any other available information related to the nature and scope of the proposed action relevant to its effects on listed species or designated critical habitat.

What you should have at the end of this step: A detailed project description with enough information to:

• Accurately determine the project’s effects on any listed species or critical habitat present.
• Enable the Service to identify the extent of impacts to listed species. 
• Enable the Service to assess your effects determination and whether the project jeopardizes a species or adversely modifies critical habitat.

Include this description as the first part of your biological assessment or evaluation.

Step 2: Define the action area

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The next step is to define your project’s action area - all areas affected, directly or indirectly, by the action, not simply the project footprint, nor the limit of the Federal agency's authority. It includes temporary and permanent changes to land, water, and air caused by activities reasonably certain to occur and that would not occur but for the proposed federal action. Note: Defining the action area is based on how the project is proposed, not how it could hypothetically be done. What to include: 

• Project footprint on a topographic map, including all ground-disturbing and tree removal activities, access roads, staging areas, borrow pits, etc. 
• Areas beyond the project footprint that are altered by the project, including areas where there are:
• Changes in water quality, quantity, and/or flow (both surface and groundwater - including precipitation once it hits the ground).
• Changes to air quality and/or flow.
• Changes to lighting – artificial or natural.
• Changes to temperature.
• Changes to sound.
• Changes to pressure.

What you should have at the end of this step - The defined geographic extent of the project’s impact on the surrounding environment, i.e., your action area. Include this description in the second section of your biological assessment or evaluation.

Step 3: Generate an official species list

Now that you know your action area, identify 1) what threatened or endangered species may be present in your action area, and 2) what critical habitat is in your action area. Note: Critical habitats are formally designated areas with physical or biological features essential to the conservation of listed species. Federal agencies must ensure their actions don’t appreciably diminish the value of critical habitat for listed species. Designated critical habitat has a legal status and isn’t synonymous with “suitable habitat.”

The Service has an online tool, the Information for Planning and Consultation system (IPaC), to help with the consultation process. IPaC IPaC
Information for Planning and Consultation (IPaC) is a project planning tool that streamlines the USFWS environmental review process

Learn more about IPaC provides, among other things, a list of threatened or endangered species and critical habitats to be considered for a given action area (i.e., official species list). It will also provide a list of plants and animals proposed for the threatened and endangered species list. Use IPaC to generate an official species and critical habitat list for your action area:

• Go to IPaC (https://ipac.ecosphere.fws.gov/) and login to your account via the “Log In” button.
• Once logged in, click “Get Started” and follow the three steps on the left. Click “Continue.”
• An unofficial list of species is presented to you. If this list is printed, it will include a “not for consultation” watermark.
• Under “What’s next?”, click “Define Project.” The pop-up window will ask for a “Project Name” and “Project Description.” Once you enter information, click “Save”.
• Under “What’s next?”, click “Start Review,” then “Continue”, then “Yes, Request Species List”.
• Answer the questions provided and click “Submit Official Species List Request” to obtain an official species list without the above-mentioned watermark. Save the PDF version of this list.
• If there are no listed species or critical habitat, your obligations under the ESA are complete.

For a video demonstrating the process for requesting an official species list, follow this link - https://www.youtube.com/watch?v=DIDciJAbsAQ

What you should have at the end of this step – A list of federally threatened or endangered species whose range overlaps your action area and any designated critical habitat that overlaps your action area. This should be included in your biological assessment or evaluation. All review requests submitted to the Asheville Ecological Services field office must also include the Project Code identified on the official species list generated in IPaC.

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Step 4: Determination Keys

The next step is to begin the process of determining how your project may impact listed species. There are three possible determinations:

• No effect - If suitable habitat for a species is not present within the action area or impacts to suitable habitat will be completely avoided.
• May affect, not likely to adversely affect – 
  • If species habitat is present, but the species isn’t, as demonstrated by surveys conducted during approved survey windows by qualified individuals.
  • If the species is present but all effects are wholly beneficial, insignificant, or discountable. There may be cases where this determination is possible with a commitment to sufficient conservation measures (see Step 9). Beneficial effects have contemporaneous positive effects without any adverse effects to the species or habitat; insignificant effects are undetectable, not measurable, or cannot be evaluated; discountable effects are extremely unlikely to occur.
  • If there is suitable habitat and the species is assumed present (no valid species survey results), and all effects are wholly beneficial, insignificant, or discountable. 
• May affect, likely to adversely affect - If the species is present or assumed present and the action or its consequences are likely to negatively impact it, and the impact is not insignificant or discountable.

To help this process, the Service has performed up-front analyses for certain project types, agencies, species, and critical habitats. The analyses have been compiled into determination keys (dkeys), a simple online interview process to help you arrive at a recommended determination for some species in your action area. Dkeys available to your project depend on location, lead Federal action agency, project type, etc. To see what dkeys are available to your project, select “Next Step: Determination Keys” or “Evaluate Determination Keys” in IPaC after you generate an official species/critical habitat list.Note: Not all dkeys in the list will apply to your project even though they are available.

To complete a dkey, while in IPaC:

• Click “Evaluate” under the applicable dkey.
• Review the information on the dkey landing page. If you determine the dkey applies to your project, click “Check If My Project Qualifies.”
• Answer each yes/no question presented by the dkey until the dkey provides a response.
• If the response indicates that the dkey does not apply, then the project 1) is out of the scope of the dkey, or 2) “may affect” listed species or critical habitat and closer examination is warranted to discern how the project may affect a listed species. Follow the instructions provided by the response.
• If the response indicates “no effect” or “may affect, not likely to adversely affect,” click “Save and Continue.”
• Answer any project survey questions and click “Continue.”
• Click “Generate.”
• Verify the project information and click “Generate.”
• Save the PDF generated by IPaC.
• Click “Exit Review”. Do not complete “Analyze project” or “Download documentation.”

For a video demonstrating the process to complete a dkey, follow this link - https://www.youtube.com/watch?v=QkamFZK8EfU

The appropriate Service office is automatically notified of dkey results. If consultation on all listed species and designated critical habitat is completed via dkeys, i.e., the dkeys return determinations of “no effect” or “may affect, not likely to adversely affect” for all species and critical habitats on your list, the Service has a period to review the dkey results - please note this time, usually 30 days. If you do not hear from the Service by the end of the review period, consultation is complete and you do not need to contact a Service biologist. 

If dkeys do not apply to some or all the species or critical habitat on your official species/critical habitat list, then the project is out of the scope of the dkeys, or it may affect a listed species and/or critical habitat and needs additional review by the Service. You’ll need to submit your project to the field office for further review - continue to Step 5 below.

What you should have at the end of this step – For each species and critical habitat in your action area, you’ll have official communication from the Service either:

1. Confirming a “no effect” determination,
2. Concurring with a “may affect, not likely to adversely affect” determination,
3. Indicating a “may affect” determination, in which case additional review is needed to discern whether the project is likely to adversely affect a species, or
4. A combination of responses. 

Should additional consultation be needed for your project, please include any dkey responses generated by IPaC in your biological assessment or evaluation.

Step 5: Begin a species determination table

Note: This step can also be done in narrative form, a table makes it easy to track and communicate key information. 

If review of your project didn’t conclude with dkeys, it’s time to take a closer look at how it may impact listed species or critical habitat. In Step 3, you identified species to consider, now begin a table to track how the project might affect them - create a table with the following columns: species, presence in the action area, information used, recommended determination, conservation measures incorporated into the project (see Example 1 below). You’ll use this table, referred to as a determination table, to record how you expect the action to affect each of the species on your list. Add the species from the official species list to the “Species” column. Note: Species proposed for listing and critical habitat proposed for designation are not afforded protection under the ESA; however, as soon as a listing or designation becomes effective (typically 30 days after publication of the final rule in the Federal Register), the protection of the ESA will apply. If you would like the Service to consider proposed species or critical habitat during project review, please include them in your table.

Example 1 – Determination table with a species added to the first column.

What you should have at the end of this step –A table, with species listed, that will provide a format for recording requisite information on how the project may affect listed species. Upon completion, this table and the reasoning and evidence used in populating it should be included in your biological assessment or evaluation.

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Step 6: Determine presence of listed species suitable habitat

Step 3 gave you a list of species ranges that overlap your action area, however that doesn’t mean a particular plant or animal’s habitat is present, and without its habitat, the species won’t be present. Using information provided by IPaC, a natural heritage program, or other reliable sources, identify suitable habitat for each species listed on your table, then determine if the suitable habitat occurs within the action area. Note your conclusion in your determination table (Example 2) and include the information used to reach this conclusion. This information could include, but is not limited to, botanical species lists, plant communities present, stream bed substrate and flow regime descriptions, soil type, etc.

Example 2 – Determination table showing where to note the presence of suitable habitat and the information used to determine suitable habitat presence.

What you should have at the end of this step – Documentation of whether listed species habitat is present in your action area and a record of how you reached that conclusion. Include this in your biological assessment or evaluation.

Step 7: Determine the presence of listed species

Step 6 told you which species have suitable habitat present. Now, for species with suitable habitat present you can either 1) assume the species is present, or 2) determine if the species is present. If you want to determine if the species is present, we may recommend species surveys.

• For plant surveys, reference the Optimal Survey Times for Plants document to identify when plant surveys should occur, as all plants are not readily identifiable year-around.
• For Indiana bat, northern long-eared bat, or tricolored bat, please reference survey guidelines at this link - https://www.fws.gov/media/range-wide-indiana-bat-and-northern-long-eared-bat-survey-guidelines.
• For all other animals, please coordinate surveys with the Asheville Ecological Services field office.

Note: Those surveying for listed animals must have an ESA section 10(a)(1)(A) permit from the Service, or be conducting surveys with a permitted individual or agency if there is a chance that animals will be captured and handled. 

Surveys must follow applicable guidelines, include a thorough search of suitable habitats within the action area, be done by qualified individuals, and occur during the appropriate survey window. Surveys outside appropriate survey times may not be accepted as valid without prior approval from the appropriate Service biologist. Add the outcome of any survey effort to the “Presence in Action Area” column of your table (Example 3).

Example 3 – Determination table showing where to note the presence of a species and how species presence/absence was determined.

What you should have at the end of this step – Either an assumption that species are present, or a finding that they are or are not present and a description of how you reached that conclusion, including a description of any survey effort with 1) the date of survey, 2) the names of the surveyors and their credentials, 3) survey methodology, and 4) results. Include this information in your biological assessment or evaluation.

Step 8: Determine the preliminary effect to the species

Now that you know the action area of the project, what the project will entail, and what species are present, you can determine the effects to the species and add them to your table.

Possible effects determination for listed species:

• No effect - If suitable habitat for a species is not present within the action area or impacts to suitable habitat will be completely avoided.
• May affect, not likely to adversely affect - If species habitat is present, but the species isn’t, as demonstrated by surveys conducted during approved survey windows by qualified individuals.
• May affect, not likely to adversely affect -
  • If the species is present but all effects are wholly beneficial, insignificant, or discountable. There may be cases where this determination is possible with a commitment to sufficient conservation measures (see Step 9).
  • If there is suitable habitat and the species is assumed present (no valid species survey results), and all effects are wholly beneficial, insignificant, or discountable.
  • Beneficial effects have contemporaneous positive effects without adverse effects to the species or habitat. Insignificant effects relate to the size of the impact and include those that are undetectable, not measurable, or cannot be evaluated. Discountable effects are those extremely unlikely to occur.
• May affect, likely to adversely affect - If the species is present or assumed present and the action or its consequences are likely to negatively impact it and the impact is not insignificant or discountable.

Use these tips to avoid common determination flaws.

When the Federal agency proposing the action determines that a "may affect" situation exists, they must initiate formal consultation or seek written concurrence from the Service that the action is not likely to adversely affect listed species (50 CFR 402.14(a)).

Enter your effect determination for each species in the “Recommended Determination” column on your determination table. Include your rationale and evidence for each effect determination in your biological assessment or biological evaluation.

If a dkey returned a “no effect” or “may affect, not likely to adversely affect” determination for some of the species or critical habitats on your list, go ahead and mark those determinations in your table. 

What you should have at the end of this step – One of three possible determinations for each species listed on your table and the rationale and evidence you used to reach that conclusion. Include all of this in your biological assessment or evaluation.

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Step 9: Identify conservation measures and finalize effect determinations

Conservation measures are steps the action agency, or its designated agent, take to minimize the action’s negative impacts to listed species or critical habitat. These can include, but are not limited to, altering the timing of an action (on a seasonal or daily basis), altering the footprint of the project, or altering or adding project activities and practices to minimize or avoid impacts. For example, trees could be cut or structures demolished when bats will not be roosting in them; the footprint of a section of earth to be turned could be adjusted to exclude a population of a listed plants; or a strict sediment and erosion control plan could be put in place to protect an imperiled mussel. Other common conservation measures include on-site environmental training for contractors or placement of physical barriers between work and sensitive habitats or plants. If a "may affect, likely to adversely affect" determination is made for a species, please include all measures proposed to avoid or minimize potential impacts to each species and critical habitat in the “Conservation Measures Incorporated into Project” column. Sample and potential conservation measures can be found here.

Incorporating sufficient conservation measures into a project may change effect determinations reached in Step 8, e.g. a project that was “likely to adversely affect” a species may become “not likely to adversely affect” a species when conservation measures are applied. Once your conservation measures are identified, revisit your effect determinations from Step 8 to see if any need to be updated in the table and in the narrative of your biological assessment or evaluation.

If, after identifying conservation measures, a determination of “likely to adversely affect” is recommended for any species, you may be asked by the Service biologist for a more thorough biological assessment than this step-wise process provides, as the Service needs sufficient information to determine 1) if the project will jeopardize a species and 2) how much take to authorize for the project. 

Enter conservation measures in the final column of the determination table (Example 5 ) for each species.

Example 5 – Determination table showing where to note conservation measures.

When the Federal agency, or their designee, determines a project "may affect" a listed species, they must 1) initiate formal consultation or 2) seek written concurrence from the Service that the action is not likely to adversely affect listed species (50 CFR 402.14(a)).

What you should have at the end of this step –A list of conservation measures to be incorporated into the project and updated effect determinations that factor in the conservation measures. Include all of this in your biological assessment or evaluation.

Step 10: Addressing critical habitat

If critical habitat overlaps with your action area and consultation on it wasn’t resolved with a dkey in Step 4, reach out to a biologist to discuss how best to proceed.

Step 11: Compile your project review package, which will service as your biological assessment or evaluation

After completing Steps 1-9, compile the information listed below:

Step 12: Submit your package electronically following the guidelines below

Submitting information to IPaC does not submit information to a biologist at the Asheville Ecological Services field office. To request project review, you must submit your review request via these guidelines:

• Format and size: Consolidate documents into a single PDF, smaller than 25MB. If a single email would be larger than 25MB, please consolidate items into the least number of documents and e-mails as possible.
• Subject line: In your email subject title, indicate the name of your project and the project county.
• Receipt confirmation: All project reviews will receive a return receipt to inform you that your project has been successfully submitted to this office.
• Keep records: Maintain a complete copy of the project review package in your files since it will become an integral part of your official record of compliance.

If you know the name of the consultation biologist reviewing your project, please email your package directly to them. If not, email your package to Rebekah Reid at rebekah_reid@fws.gov for forwarding to the appropriate biologist.

To learn more about project review under the Endangered Species Act, visit these libraries

Connect with Service biologists versed in the Endangered Species Act project review process