Step 4: Evaluate Effects to Listed Species and Designated Critical Habitat
Potential effects from a proposed project should be evaluated for each listed species and DCH included on the official species list. An effects determination should then be made for each listed species and DCH. Effects analyses and determinations are not required for proposed and candidate species, as these species are not protected by the take prohibitions of the ESA. Project proponents are only required to conference with the Service for a proposed species if their project will jeopardize the continued existence of the species. Proponents can also elect to conference with the Service for a proposed species if they choose. There are two options to evaluate effects from a project:
- IPaC Determination Keys
- Project Proponent Evaluation
Determination keys (DKeys) can expedite the review process for many project types and, in some cases, eliminate the need to contact or consult with the KFO. The KFO recommends completing applicable DKeys for as many species as possible, even if other species must be evaluated by the proponent outside of IPaC. However, there is no requirement to complete DKeys after obtaining an official species list. A project proponent can choose to evaluate effects and make effects determinations for listed species and DCH through their own process and submit this information to the Service. These two options are described in further detail below.
Step 4a. IPaC Determination Keys (DKeys)
DKeys are logically structured sets of questions designed to assist in determining if a project qualifies for a recommended effects determination based on existing programmatic consultations or internal Standing Analyses completed by the Service. DKeys significantly reduce the time to complete consultation for qualifying projects and can instantly generate Service concurrence and consistency letters.
To use a DKey, go to “My Projects” in IPaC and select the proposed project. Select “Evaluate Determination Keys” and follow the instructions. In Kentucky, five DKeys are available. Some DKeys are only applicable to specific species or project types; therefore, be sure to read the DKey description thoroughly before use to ensure it is applicable to your project. If you completed a DKey and need to change an answer or no longer want to use that DKey, the DKey can be invalidated. The project proponent can then change an answer and resume the DKey from that point. For DKeys that are not applicable to your project, select “Skip/Does Not Apply”.
The DKeys will recommend effects determinations for each species covered by that DKey based on the project proponent’s responses to the questions. There are three effects determinations that can be generated by a DKey:
- No Effect – This determination is appropriate when a project will not affect a listed species or DCH.
- Not Likely to Adversely Affect – This determination is appropriate if effects to a listed species or DCH from the project are discountable, insignificant, or completely beneficial. Discountable effects are effects that are extremely unlikely to occur. Insignificant effects relate to the size of the impact and include effects that cannot be meaningfully measured, detected, or evaluated. Effects that are insignificant should never reach the scale where take occurs. Completely beneficial effects are positive effects without any adverse effects to the species or habitat.
- May Affect – This determination is appropriate when a project may result in effects to listed species or DCH that are not discountable, insignificant, or completely beneficial.
Once an effects determination is reached by a DKey, the project proponent can generate a letter that documents the determination for each species. If the project proponent is an employee of the Federal agency responsible for the project or is a designated non-Federal representative, a concurrence letter is generated. If the project proponent does not meet either of these criteria, a consistency letter will be generated. A consistency letter only serves as technical assistance and does not provide official concurrence under Section 7.
If “no effect” and/or “not likely to adversely affect” determinations are made through Dkeys for all species and DCH included on the official species list, no further coordination or submittal to the KFO is required. The letters generated by the Dkeys serve as documentation that obligations to evaluate effects to listed species and DCH have been fulfilled for the proposed project. The project proponent should retain the Dkey letter for their files, as well as documentation that supports the determination. For “no effect” determinations, this documentation should demonstrate a lack of suitable habitat within the , show that no impacts to suitable habitat would occur, or provide information that the species is not reasonably certain to occur in the action area even though suitable habitat is present.For “not likely to adversely affect” determinations, the KFO has up to 15 days to review the Dkey letter internally to verify that the project meets the criteria for the determination. Project proponents can also choose to submit Dkey letters to the KFO for verification of effects determinations or if they have questions about the Dkey process.
If a “may affect” determination is reached for a species or DCH using a Dkey, then additional coordination with the KFO is required. A determination of “may affect” means the DKey was either unable to provide a conclusion, the project proponent was unsure which determination to make, or the proponent chose to make the determination. A “may affect” determination does not necessarily mean that the project will have adverse effects on the species or DCH, only that additional information is needed to fully evaluate potential effects. The project proponent should coordinate with the KFO to complete the review process. If additional coordination with the KFO is necessary, follow the instructions in Step 5 to submit a project review package.
Do not use the Consultation Package Builder in IPaC. After using DKeys, IPaC offers the option of using the Consultation Package Builder (“Next Step: Analyze Project”) to help project proponents prepare a consultation package. This function is in development and should not be used for projects in Kentucky.
Step 4b: Project Proponent Evaluation
Under this process, the project proponent evaluates effects and makes effects determinations for all species and DCH on the official species list or for those species/DCH that do not have an effects determination through a DKey. Species information that may assist in evaluating potential effects is available from the sources mentioned in Step 3.
Potential effects determinations that can be made for listed species and DCH include:
- No Effect – This determination is appropriate when a project will not affect a listed species or DCH. As previously discussed, a “no effect” determination does not require further consultation with the KFO.
- May Affect, Not Likely to Adversely Affect – This determination is appropriate if effects to listed species or DCH are expected to be discountable, insignificant, or completely beneficial. Discountable effects are those that are extremely unlikely to occur. Insignificant effects relate to the size of the impact and include effects that cannot be meaningfully measured, detected, or evaluated. Effects that are insignificant should never reach the scale where take occurs. Completely beneficial effects are positive effects without any adverse effects to the species or habitat.
- May Affect, Likely to Adversely Affect – This determination is appropriate if any adverse effect to listed species or DCH may occur as a direct or indirect result of the project and the effect is not discountable, insignificant, or completely beneficial.
To evaluate effects from a proposed project and make effects determinations for listed species and DCH, follow the steps below.
1. Deconstruct the proposed project into separate activities to determine how each activity could affect the listed species and DCH.
2. Identify effects, or stressors, caused by each activity. A stressor is a term used to describe any change in the environment (physical, chemical, or biological) that may elicit a response from a species or affect an essential physical and biological feature of DCH.
3. Determine if each species is likely to be exposed to each stressor. Exposure occurs when a species is subjected to a stressor from the project. A stressor can affect a species even if the species is not present when the stressor occurs. For example, removal of Indiana bat primary maternity roost trees during the winter could affect females when they return from hibernacula in the spring.
- If the species will not be exposed to the stressor, a “no effect” determination is appropriate.
- If the species will be exposed to the stressor but effects are unlikely to occur, effects are considered discountable. A “may affect, not likely to adversely affect” determination is appropriate.
- If the species will be exposed to the stressor and effects may occur, determine if an adverse response is likely to occur.
- If an adverse response is not likely to occur, effects are considered insignificant. A “may affect, not likely to adversely affect” determination is appropriate.
- If an adverse response is likely to occur, a “may affect, likely to adversely affect” determination is appropriate.
4. If DCH is present in the action area, determine if each physical and biological feature of the DCH is likely to be exposed to each stressor.
- If a physical and biological feature will not be exposed to the stressor, a “no effect” determination is appropriate.
- If a physical and biological feature will be exposed to the stressor but effects are unlikely to occur, effects are considered discountable. A “may affect, not likely to adversely affect” determination is appropriate.
- If a physical and biological feature will be exposed to the stressor and effects may occur, determine if an adverse response is likely to occur.
- If an adverse response is not likely to occur, effects are considered insignificant. A “may affect, not likely to adversely affect” determination is appropriate.
- If an adverse response is likely to occur, a “may affect, likely to adversely affect” determination is appropriate.
5. For all “may affect” determinations, document the findings and submit the project to the KFO for review.
Step 5: Submit Project Review Package
Proposed projects that result in a “may affect” determination for any listed species or DCH should submit a project review package to the KFO. If a “may affect, not likely to adversely affect” determination is made for all species and DCH, the Federal agency or designated non-Federal representative should request concurrence through informal consultation. If a “may affect, likely to adversely affect” determination has been made for a species or DCH, the Federal agency or designated non-Federal representative should request formal consultation for that species and/or DCH. Federal agencies and designated non-Federal representatives are not required to contact the KFO for “no effect” determinations. Non-Federal applicants may choose to submit project review packages to the KFO to ensure compliance with other sections of the ESA (e.g., Section 9).
The project review package should include:
- Project title and IPaC Project Code.
- Type of Federal action (i.e., federal nexus) and lead Federal agency (if applicable).
- Project location and description.
- Maps showing the project location, action area, project plans, and potential impacts.
- IPaC official species list.
- Description of habitat in the action area and/or habitat assessment results.
- Species survey results (if applicable).
- Evaluation of effects and effects determinations for each species and DCH.
- Avoidance and minimization measures to reduce project impacts to listed species and DCH (if applicable).
Electronically submit the project review package via email to KentuckyES@fws.gov with the IPaC Project Code (202x-xxxxxxx) and project name in the subject line. If the IPaC project code is not included in the subject line, we will assume an official species list and project code have not been obtained and will not begin review of the project. Instead, you will receive an email asking you to resubmit the project review package with the project code in the subject line. If you do not yet have an official species list and project code, you will need to obtain them before resubmitting the project review package.
The project review package will be assigned to a KFO biologist for review. The KFO has up to 60 days from the submittal date to provide concurrence or technical assistance but strives to complete consultations or request additional information within 30 days of submittal.
For questions or to provide feedback on this guidance, please contact the KFO at KentuckyES@fws.gov or (502) 234-2832.
Last updated on March 6, 2024.
