Nebraska Ecological Services Field Office - Project Review and Planning Under the Endangered Species Act
The U.S. Fish and Wildlife Service (Service) Nebraska Ecological Services Field Office is here to assist federal agencies or their applicants or designated non-federal representatives, and non-federal project proponents (referred to herein as proponents) fulfill their Endangered Species Act obligations while streamlining their interactions with our office. We are also here to help proponents achieve compliance under the other federal wildlife laws our agency administers, including the Bald and Golden Eagle Protection Act, Migratory Bird Treaty Act, and Fish and Wildlife Coordination Act.
Overview of Project Planning and Review under the Endangered Species Act (ESA)
The ESA provides two avenues for project review:
1. Section 7 of the ESA applies to actions with a Federal nexus (i.e., require a federal permit, funding, authorization, or action) in part or whole. Proponents can request three types of reviews from our office:
- Technical Assistance: A telephoned or written request from a Federal agency or their non-Federal representative inquiring about the presence or absence of listed and/or proposed species and designated critical habitat in a project area and to determine if consultation should be initiated. If the action agency determines that their project will result in no effect on listed species or critical habitat, the consultation requirement is met, and no further action is required. If historical records or habitat similarities suggest the species may be in the area, then some survey work may be recommended to make a more precise determination. If the species is likely in the project area or would likely be affected by the project, the action agency should request further consultation with the Service (see Informal and Formal Consultation below) (The term “technical assistance” is not used in the Act or regulations, it is a working definition developed by the Service. See pages 3-3 through 3-10 of the Section 7 Endangered Species Consultation Handbook (referred to as Section 7 Handbook or Handbook herein) for more discussion on this term).
- Informal Consultation: A process between the Service and a Federal agency or their designated non-Federal representative if a Federal nexus (action, permits, funding or license) exists in which the federal action agency determines their proposed action is not likely to adversely affect species or critical habitats (see 50 CFR 402.02), (e.g., whooping cranes fly over but do not feed, roost, or nest in the area, and are not expected to be affected). Not likely to adversely affect is defined as effects that do not exceed insignificant, discountable, or which are wholly beneficial.
- Formal Consultation: A process between the Service and a Federal agency when a Federal action, permit, funding, or license is likely to adversely affect species or destroy or adversely modify critical habitat. Formal consultation commences with the Federal agency’s written request to initiate consultation under Section 7(a)(2) of the ESA and concludes with the Service’s issuance of a Biological Opinion under Section 7(b)(3) of the ESA (see 50 CFR 402.02 and 402.14).
2. Section 10 of the ESA applies to non-Federal actions that are likely to take listed species. This process includes the development of a Habitat Conservation Plan and application to obtain an Incidental Take Permit under section 10(a)(1)(B) of the ESA. We recommend you visit our agency’s Habitat Conservation Planning Policies, Regulations, and Guidance webpage for more information on the process. On this webpage, please start by reviewing the Service’s Habitat Conservation Planning and Incidental Take Permit Processing Handbook.
In the project planning and review process, it is the proponent’s responsibility to review their project and subsequent action(s) to determine which type of review is necessary. If you have questions, do not hesitate to contact our office for assistance by emailing nebraskaes@fws.gov or refer to our Staff Webpage.
Submitting Section 7 Consultations to the Service for Official Review.
The following next four steps provide an outline of the Section 7 consultation process and a list of the required information (per 50 CFR 402.12) necessary for the Service to complete our project review of your project in a timely manner. Project review packages received incomplete may experience a longer wait time until we receive all the necessary information (see the section on Processing Time).
Before proceeding through the next several steps, do you have one of the project types listed below? If so, please make note of the Service’s project-specific resources available for your project type.
Wind Energy:
- Service Wind Energy Webpage: Discusses fish and wildlife considerations, efforts to reduce impacts and conserve wildlife from wind facilities, and Land-based Wind Energy Guidelines and training materials)
- Service Region 6 Wind Energy Guidance Documents: Provides the Service’s Recommendations for Avoidance and Minimization of Impacts to Golden Eagles at Wind Energy Facilities, Wildlife Buffer Recommendations for Wind Energy Projects, Protocol for Conducting Pre-Construction Eagle Nest Surveys at Wind Energy Projects, and Recommended Approach for Development and Submission of Eagle Conservation Plans Submitted to the Regions 6 Migratory Bird Management Office in Support of Eagle Incidental Take Permit Application for Wind Energy Projects.
- Nebraska Specific Wind Energy Guidance: Provides Nebraska’s Avian Assessment Guidance for Wind Energy Facilities; Guidelines for Avoiding, Minimizing, and Mitigating Impacts of Wind Energy on Biodiversity in Nebraska; and Bat Assessment Guidance for Wind Energy Facilities in Nebraska.
Solar Energy:
Telecommunication Towers:
Powerlines (distribution and transmission):
Oil and Gas Pipelines:
For all other types of energy development, like carbon capture, we currently do not have guidance documents available for distribution. Once that guidance becomes available, it will be searchable and housed on our Energy Technologies and Impacts Webpage.
Federal Transportation Projects:
Pesticides:
For all other environmental contaminants, like water quality pollution, and other stressors, we currently do not have guidance documents available for distribution. Once that guidance becomes available, we will post the location of the resources on this webpage. If you have questions regarding the use or application of these resources, please call us. Please proceed to the Step 1, of the consultation process.
Step 1: Obtain an Official Species List.
To obtain an Official Species List, please visit the Service’s Information for Planning and Consultation (IPaC). The Official Species List will help you determine whether any listed, proposed, or candidate species may occur in your Action Area(defined under the ESA as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action” [50 CFR 402.02]) based on the availability of suitable habitat. The Official Species List you obtain from will identify the federally protected wildlife and plant species (i.e., threatened, endangered, or candidate species, migratory birds, and eagles) and any federally designated critical habitats that may occur in yourAction Area.
If you have never used IPaC before, we recommend watching these instructional training videos:
Have your Official Species List ready to go before proceeding to Step 2.
Official Species List Generated by IPaC
Threatened, endangered, and candidate species and designated critical habitats in Nebraska
Step 2: Prepare a Biological Assessment.
A Biological Assessment is a document containing information prepared by, or under the direction of, a Federal agency that evaluates the potential effects of the action on listed and proposed species and designated and proposed critical habitat that may be present in the Action Area and is used in determining whether such species and habitat are likely to be adversely affected by the action (50 CFR 402.02). The outcome of the Biological Assessment is also used to determine whether formal consultation or a conference is necessary.
A Federal agency is required to prepare a Biological Assessment if a federally listed or proposed species or critical habitat may be present in the Action Area. A Biological Assessment shall be completed before any contract for construction is entered into and before construction is begun.
The format and components of a Biological Assessment heavily depends on the nature of the Federal action, therefore, the format and components of the document are at the discretion of the Federal agency. The Service does not require the Biological Assessment be presented in a certain format. Although, we do recommend the document contain the contents suggested in 50 CFR 402.12(f). We will walk-through this content in sub-steps 2a - 2e.
Step 2a: Describe the Proposed Action.
Per 50 CFR 402.12(f), the first piece of information that is needed in the Biological Assessment is a detailed description of the proposed action. The description must contain sufficient detail to identify all components of the proposed action that lead to potential environmental consequence, including where the action and its different elements would occur, when they would occur, and how long the action and its different elements would endure over time. At a minimum, descriptions of the proposed action should identify:
- the lead Federal agency (i.e. federal agency taking, carrying out, or authorizing the action)
- the name of Applicant, if any
- the purpose of the Action
- the statutory authority for the Action
- what the Action entails, including any phases (pre-construction, construction, post-construction, operations, and other related activities)
- a description of any conservation measures that will be implemented to avoid or minimize effects to listed species or critical habitat
- where the Action will occur (e.g. nearest city, state, and/or GPS coordinates) with a map
- any interrelated and interdependent Actions
Step 2b. Deconstruct the Proposed Action
Once the Federal agency has a complete description of the whole and complete proposed action, the next step is to “deconstruct” the action into its constituent parts to identify any environmental stressors (physical, chemical, or biotic stressors that are directly or indirectly caused by the action and, indirect effects that are reasonably certain to occur) and any environmental subsidies by the action (environmental changes that improve conditions for taxa that prey on, compete with, or serve as pathogens for one or more listed species). In other words, in this step, the Federal agency needs to describe the “effects of the action,” which refers to the direct and indirect effects of the action on the federally listed species and/or designated critical habitats, together with the effects of other activities that are interrelated or interdependent with the action that will be added to the environmental baseline (50 CFR 402.17)…”Indirect effects” are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur. “Interrelated actions” are those that are part of a larger action and depend on the larger action for their justification whereas “interdependent actions” are those that have no independent utility apart from the action under consideration. For interrelated and interdependent actions, it is not important to be able to distinguish between these types of actions, but to recognize them. “But for” the action, would they happen? Definitions for the effects of the action, indirect effects, interrelated actions, and interdependent action are according to 50 CFR 402.02.
If the Service cannot identify the Action’s constituent parts or cannot identify the environmental stressors with sufficient detail, our office will contact the Federal agency to refine the description. If you have questions, please call us. The goal of this step is to make sure both the Federal action agency and our office are talking about the same project. Figure 1 provides a pictorial with an example of a partial deconstruction of a transportation project.
When the Federal agency completes this step, the Service should be able to describe:
- The specific physical, chemical, and biotic stressors or subsidies that are likely to result from the Action
- The intensity of those stressors or subsidies in the environment
- The spatial distribution of the stressors or subsidies at any particular instance
- The temporal distribution of the stressors or subsidies at a given intensity
Step 2c. Identify the Action Area.
Per federal regulation 50 CFR 402.02, the Action Area is defined as all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. Use your deconstruction of the proposed action from the previous step to complete a detailed account and analysis of the proposed action and its sub-activities that encompasses all temporary and permanent changes to “land, water, and air” that may be caused by the proposed action but would not occur “but for” the proposed action and are reasonably certain to occur. Your account and analysis should result in a map of your Action Area. Figure 2 is a pictorial of an Action Area.
Step 2d. Evaluate the Presence of Suitable Habitat in the Action Area.
Using the Action Area that you defined in the previous step, you need to evaluate the presence of suitable habitat in your Action Area. To do so, you will need your Official Species List and make reference to the federally listed, proposed, or candidate species, migratory birds, and eagles species listed in your report. For each of the species identified on the Official Species List, use the best available information (e.g., relevant literature, Five-Year Reviews, and other information available on the Service’s Species Profiles pages, field surveys, or desktop surveys performed using aerial imagery as examples) to determine whether the Action Area contains any type of suitable habitat. The intent is to use suitable habitat as a proxy for species’ presence. Federally designated critical habitats are areas defined in rulings published in the Federal Register. Habitat assessments or surveys must be conducted by a biologist familiar with the life history of each species. Handling or researching endangered plants and animals is a regulated activity. State and federal permits may be required.
- If you can confirm suitable habitat is absent within the Action Area, document what source(s) of information you consulted and provide a thorough justification for this conclusion. Clearly explain why the environment at the project site is not suitable for listed species.
- If you determine that suitable habitat may be present or are uncertain whether habitat may support listed species, a detailed habitat assessment is recommended.
- If suitable habitat occurs within the Action Area, species surveys are recommended. Document that suitable habitat is present along with the source(s) of information you consulted and justification for this conclusion. Include any survey reports in your project review package. If suitable habitat occurs within the Action Area but surveys are not conducted, please provide the resources or rationale that you used to determine suitable habitat occurs in the Action Area.
Step 2e. Make Effect Determinations for Federally Listed Species and Designated Critical Habitats.
In this step, the Federal agency should identify the stressors to federally threatened and endangered species and/or to the essential physical and biological features and primary constituent elements of any critical habitat that are present inside of or overlap with the Action Area. Are any threatened and endangered species or critical habitats likely to be exposed to stressors caused by the proposed action? Consider all consequences of the proposed action and assess the potential for each of the species’ life stages to occur in the Action Area to be exposed to the stressors and subsidies.
For each threatened and endangered species (candidate species should be assessed in Step 5) and critical habitat(s) identified in the Official Species List IPaC report that are present in the Action Area, determine whether the project will have “no effect” or “may affect” a species.
- A ‘no effect’ conclusion would be appropriate if the proposed action or activity caused by the proposed action would have no consequences to federally listed species or designated critical habitats. If you determine that the action or activity will result in a no effect determination, then section 7 consultation is not required. The proponent should document the “no effect” determination and rationale justifying their no effect. The proponent is not required to notify our office or seek our concurrence with a no effect determination as the Service is not legally required to review it, concur with it, or provide comments on it. We focus our limited resources on actions that do require section 7 consultation. In order for an action agency to determine if any activities will have “no effect” on listed species or critical habitat(s) in the Action Area, the determination must be able to be made for ALL species and critical habitats in the Action Area.
- A ‘may affect’ determination would be appropriate if the proposed action – or other activities that are caused by the proposed action – may have consequences to listed species or critical habitat. If a “may affect” determination is made for a species, please include all conservation measures proposed to avoid or minimize potential impacts. This will help you determine if a may affect determination is “likely to adversely affect” or “not likely to adversely affect” the species. NOTE: We are in the process of compiling a list of the applicable conservation measures for federally listed species in Nebraska. This list of conservation measures may also be applied as Avoidance and Minimization Measures for mitigation of impacts. Until this list is available, please contact our office if you are not aware or are questioning which measures apply to your project.
A proposed action warrants a "may affect, not likely to be adversely affected" finding when its effects – and the effects of other activities that are caused by the proposed action – are wholly beneficial, insignificant, or discountable. Beneficial effects have contemporaneous positive effects without any adverse effects to the species or habitat. Insignificant effects relate to the size of the impact and include those effects that are undetectable, not measurable, or cannot be evaluated. Discountable effects are those extremely unlikely to occur. These determinations require informal consultation and written concurrence from the Service.
A proposed action warrants a “may affect, likely to adversely affect” finding when the proposed action – or other activities caused by the proposed action – will have negative consequences to listed species or resources. These determinations require formal consultation and written concurrence from the Service.
Section 7 Flow Chart: Specific Terms, Definitions, Criteria, and Wording for Use in Section 7 Consultation Document
Note that for some species and projects, IPaC will present you with an option to utilize Determination Keys. Determination keys in IPaC contain logically structured sets of questions that assist a user in determining whether a project is qualified for a predetermined consultation outcome based on an existing programmatic consultation or Service analysis. Determination Keys are intended to streamline the consultation process for the proponent and the Service. These keys allow the Service to track the use and implementation of programmatic consultations by proponents. Please utilize Determination Keys when available. There are two determination keys available for use in Nebraska: American Burying Beetle 4d Rule Determination Key and Northern Long-eared Bat 4d Rule Determination Key.
IPaC Training Video: Determination Key Deep Dive
Step 3: Consider Impacts to Other Federal Trust Resources.
Your Official Species List from IPaC also identifies other federal protected resources, other than federally listed, that may be located in your Action Area. Other federal trust resources that may occur in your Action Area could include candidate species being considered for listing under the ESA, migratory birds and other bird species of conservation concern warranted protection under the Migratory Bird Treaty Act and bald and golden eagles protected under the Bald and Golden Eagle Protection Act. In Step 2d, you likely already identified if suitable habitat occurs for these species in your Action Area. Below is a list of resources for each of these resources to help avoid and minimize impacts to these federally protected resources.
Candidate Species (Plants and animals the Service has enough information regarding their biological status and threats to propose them as threatened or endangered under the ESA, therefore, making them candidates for listing. Candidate species are not subject to the legal protections of the ESA, however, voluntary conservation of these species will benefit their current status and are recommended):
Bald and Golden Eagle Protection Act:
- 50 CFR 22.23: Requirements for permits to take depredating eagles and eagles that pose a risk to human or eagle health and safety
- Service Region 6 Migratory Bird Program Letter on BGEPA and Eagle Depredation
Migratory Bird Treaty Act:
Fish and Wildlife Coordination Act:
Step 4: Submit Project Review Package.
The Nebraska Ecological Services Field Office is moving toward 100% electronic submissions to aid timely responses. If you have made a may affect determination for any listed species or critical habitat and you are ready to initiate consultation, please submit your project review packages, including your Biological Assessment, to our office at nebraskaes@fws.gov.
We also recommend that you coordinate with the Nebraska Game and Parks Commission on all project reviews as all federally listed species are also state-listed under the Nebraska Nongame and Endangered Species Conservation Act. Additionally, there may be state-listed species affected by the proposed project that are not federally listed as there are more state-listed species than there are federally listed species. To determine if your project may affect state-listed species, please contact the Nebraska Game and Parks Commission Planning and Program Division, located at 2200 North 33rd Street, Lincoln, Nebraska 68503-0370, at ngpc.enreview@nebraska.gov.
Processing Time. All project review packages (except projects involving formal consultation) are typically reviewed by a biologist within 30 to 60 days. We always strive to provide timely responses, however, our response time is heavily reliant on our current workload. Packages that have determined a project “may affect and is likely to adversely affect” a listed species or critical habitat are allowed and may take up to 135 days for the Service to issue a final Biological Opinion per 50 CFR 402.14. Project review timelines may be paused if a project review package is received incomplete and additional information is required. For all projects, will notify you via email if we require more information as soon as possible.
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.
