New England Ecological Services Field Office

NEFO Endangered Species Act Project Review and Consultation

Updated 2/22/2023

Navigation

• Overview
• Step 1 - Define the Action Area
• Step 2 - Describe the Action
• Step 3 - Generate an Official Species List and Begin a Species Determination Table
• Step 4 - Coordinate with States
• Step 5 - Determine Presence of Suitable Habitat and Listed Species
• Step 6 - Determine if Critical Habitat Physical and Biological Features are Present
• Step 7 - Addressing Northern Long-eared Bat
• Step 8 - Effects Determinations
• Step 9 - Complete Project Evaluation and Compile Your Project Review Package if Necessary
• Streamlined Consultation Guidance for Select Project Types

Overview

Welcome to the New England Field Office’s Endangered Species Act Project Review and Consultation Guide.

The Endangered Species Act (ESA, 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 (a)(2)) requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure that actions they fund, authorize, permit or otherwise carry out will not jeopardize the continued existence of any listed species, or result in the destruction or adverse modification of federally designated critical habitat.

Through this project review process, you will follow step-by-step instructions and access information that will allow you to identify threatened and endangered species, designated critical habitat, and other Federal trust resources that may be affected by your project. You will be able to assess whether your project may affect these resources, make an appropriate determination, and develop a project review package for submission to the New England Field Office.

• If upon completion of this process you determine that your project would not affect these resources, no further coordination will be required for compliance under the ESA. Federal agencies ARE NOT required to contact the Service if a proposed action will have "no effect" on listed species (e.g., if no listed species or their habitats are present in 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 ).
• If your project may affect these resources, the project review package developed through this process will facilitate efficient review when it is submitted to our office. Federal agencies ARE REQUIRED to initiate consultation with the Service if a proposed action "may affect" one or more listed species or designated critical habitat. Pursuant to section 7(a)(4) of the ESA, Federal agencies also should contact the Service if a proposed action may affect a species the Service has proposed to list and critical habitat the Service has proposed to designate.

Before You Begin

• The step-by-step project review and consultation process is intended for use by any individual or entity requiring Service review or approval of their project within the states of NH, VT, MA, CT, and RI. 
• Please review this online process before contacting our office for assistance. If at any step during the process you need technical assistance with figuring out what to do next or how to interpret biological information, please send an email to newengland@fws.gov.
• We will continually update our website to provide new trust resources information and methods to review projects. Please refer to our website for each project review to ensure you are using current information.
• At the bottom of this page, you will find a collection of helpful s7 consultation documents.
• We respond to project review requests and requests for technical assistance as soon as possible. For projects requiring consultation, we complete informal consultation within 60 days or formal consultation within 135 days of the date when all required information has been received. Additional information may be requested if initial project review packages or biological assessments do not include all required information.
• Please do not use the "Consultation Package Builder" tool in IPaC IPaC
  Information for Planning and Consultation (IPaC) is a project planning tool that streamlines the USFWS environmental review process
  
  Learn more about IPaC except in specific situations following coordination with our office, please follow the below process to prepare a Project Review Package instead.

Project Types

1. If your project is in one of the following categories, visit Streamlined Consultation Guidance for Select Project Types at the bottom of this page:
   • Telecommunication Tower Projects
   • Routine Highway Maintenance Projects
   • 2016 EPA NPDES Small MS4 Permit Renewals (NH and MA)
2. ALL other project types - follow the step-by-step project review and consultation instructions to conduct a review of the project’s potential impacts on federally listed threatened, endangered, and proposed species; federal candidate species; and federally designated critical habitat. At the end of this review process you will be able to (1) certify that you have completed required coordination with the Service under the ESA, or (2) request additional review by the Service.

Step 1: Define the Action Area

The action area of a proposed project is defined by regulation 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 Section 402.02). This analysis is not limited to the “footprint” of the action nor is it limited by the Federal agency’s authority. Rather, it is a biological determination of the reach of the proposed action on listed species. To determine the action area:

1. Identify the project footprint on a map.
2. Consider the range of direct and indirect impacts of the action – impacts caused by the proposed action (including other activities that would only occur because of the proposed action), are reasonably certain to occur, and may affect suitable habitat or any listed species present. These effects may occur later in time or outside the project footprint. Effects can be temporary or permanent. They can include: 
   • Ground disturbance (including access roads and staging areas)
   • Changes in water quality and quantity (both surface and underground water)
   • Stormwater run-off
   • Human presence
   • Air quality
   • Lighting effects
   • Noise disturbance
3. Draw a line around all of the affected areas. This is the action area.

Image Details

The geographic extent of these effects defines your action area and will be used in the Service’s Information for Planning and Consultation (IPaC) system in Step 3. You will need to develop a map that shows your project’s action area, project footprint, and other relevant information and include this in your project review package. An inaccurate action area could result in incorrect outcomes and incomplete compliance with the ESA.

Step 2: 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.  Prepare a detailed project description, including:

• Project purpose.
• Federal nexus, i.e. the federal agency involved and their role.
• Maps with enough detail to discern project boundaries and action area.  Such maps may 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.
• Construction methods, including equipment, materials, description of percussive activities, use of lighting (e.g., type, location), staging areas, access routes, and construction timing (time of year, time of day/night, etc.).
• Project and permitting timelines, including time of work when project activities will occur.
• Long-term operation and maintenance activities (e.g., mowing, herbicide, etc.).

Step 3: Generate an Official Species List and Begin a Species Determination Table

Use the Service's Information, Planning and Consultation system (IPaC) to determine if any listed, proposed, or candidate species or designated critical habitat may be present in the action area.

1. Follow the instructions on the IPaC website to create a username or log in to your existing account, define your project action area by uploading a shapefile or using the drawing tools, and request an Official Species List.
2. Save the PDF version of the Official Species List and add it to your project review package.
   • If the Official Species List species list indicates there are no listed, proposed, or candidate* species or critical habitats found in the action area, no further consultation is necessary and you may use your Official Species List as documentation of ESA compliance for your files.
   • If your Official Species List includes the northern long-eared bat, complete the Northern Long-Eared Bat (NLEB) Consultation and 4(d) Rule Consistency Determination Key on IPaC. You will receive a Verification Letter email and we will request additional information if needed within 30 days. Unless the Service advises you within 30 days of the date of this letter that your IPaC-assisted determination was incorrect, this letter verifies that the Programmatic Biological Opinion satisfies and concludes your responsibilities for this Action under ESA Section 7(a)(2) with respect to the northern long-eared bat. If the northern long-eared bat is the only species on your species list, no further consultation is necessary at this time. Regular consultation procedures apply to all other species.
   • If the Official Species List indicates listed, proposed, or candidate* species and/or critical habitat may be present in the action area, add them to the first column of the Species Determination Table and continue with the Project Review process.
3. Until the proposed project is implemented, check IPaC every 90 days to ensure that species information is current (by selecting “Need An Updated Species List” on your My Projects page). If any changes to the species list occur, you must complete the project review process for the newly identified species.

Bald and Golden Eagles: Although bald and golden eagles are not listed species and therefore endangered species project review with our office is unnecessary for these species, they are still protected under the Federal Bald and Golden Eagle Protection Act. To learn more about this Act and whether consultation or a permit through the Migratory Birds Program is necessary, visit the following site: Bald and Golden Eagle Management.

Proposed species or proposed Critical Habitat are any species or Critical Habitat areas that are proposed in the Federal Register to be listed under section 4 of the ESA. 

*Candidate species are species of fish, wildlife, or plants for which the Service has sufficient information to propose them as endangered or threatened under the ESA, but for which development of a proposed listing regulation is precluded by other higher priority listing activities. The Service encourages consideration of these species in the environmental review process by avoiding adverse impacts to these species. Until they are proposed for listing, candidate species are not legally protected pursuant to the ESA, therefore any actions undertaken to avoid impacts or provide protection for these species are optional. Candidate species' occurrence on an official species list does not convey a requirement to consider impacts to this species as you would a proposed, threatened, or endangered species. The ESA does not provide for interagency consultations on candidate species under section 7.

Step 4: Coordinate with States

We recommend that you contact your state Natural Heritage or Endangered Species Program for additional information about listed species that may occur in your action area (i.e. proximity to bat roosts and hibernacula, species resource needs, etc.):

1. Connecticut
   • Connecticut DEEP Bureau of Natural Resources
   • Requests for Natural Diversity Data Base State Listed Species Reviews
2. Massachusetts
   • Massachusetts Natural Heritage and Endangered Species Program
   • MA Endangered Species Act (MESA) Regulatory Review
3. New Hampshire
   • New Hampshire Natural Heritage Bureau
   • New Hampshire Natural Heritage Bureau Data Request
4. Rhode Island
   • Rhode Island Department of Environmental Management
   • Rhode Island Natural Heritage Survey
5. Vermont
   • Vermont Fish and Wildlife Department
   • Vermont Development Review

Step 5: Determine Presence of Suitable Habitat and Listed Species

Your Official Species List from IPaC indicates the possible presence of a species at your project location, the next step is to assess whether suitable habitat is present.

Using species information provided by IPaC or Species Profile pages, the information about listed species provided by your state agency, and any other reliable sources of information (e.g., habitat assessments), identify whether your action area contains suitable habitat for each species on your Official Species List.

Habitat assessments and species surveys may be recommended for some species. If you have questions regarding habitat assessments or species surveys, please contact the New England Field Office for technical assistance.

A. Is suitable habitat for listed species present in your action area?

• If you can confirm that there is no suitable habitat within the action area, answer “suitable habitat not present” in the species summary table for the appropriate species, and document what source(s) of information you consulted and why you reached that conclusion in the notes/documentation column of the species conclusions table. Add this documentation to your project review package.
• If there may be suitable habitat for a listed/proposed/candidate species or if you are uncertain about whether the habitat types may support any listed/proposed/candidate species, we may recommend a detailed habitat assessment. Please contact the New England Field Office for technical assistance in determining if a habitat assessment is necessary. If suitable habitat may be present for the bog turtle, a Phase 1 Habitat Survey may be needed, please contact our office for guidelines and a list of approved surveyors.
• For each species, complete the Suitable Habitat column in the Species Determination Table with your answer (suitable habitat present, suitable habitat not present, or don’t know) and include why you reached that conclusion in the Notes/Information column of the species conclusions table. Add the habitat assessment to the project review package.

B. Is the species present in your action area?

If suitable habitat for a species is present within the action area, determine if the species is present and fill out the "Species/PBF Presence" column of your Species Determination Table. You may determine presence through use of available information or by conducting a species survey. Alternatively, you can assume potential species presence based on the presence of suitable habitat. Please coordinate with us to determine whether or not a survey is necessary and to obtain survey guidelines, appropriate survey windows, information about whether or not an ESA Section 10(a)(1)(A) permit will be required, and a list of qualified surveyors for mussels, bats and bog turtles.

• If surveys indicate species are absent from the action area, add "species not present" to the Species Determination Table. Add the survey report to the project review package.
• If surveys document that a species is present, add "species present" to the species summary table for the appropriate species. Add the survey report to the project review package.
• If surveys are not conducted, either assume that a species is present and conclude “species present” or use available information to conclude “species not present” and indicate why in the Notes/Information Column.

Step 6: Determine if Critical Habitat Physical and Biological Features are Present

Critical habitats are legally designated areas with physical or biological features (PBFs) essential to the conservation of listed species and that may need special management or protection.  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 definition and isn’t synonymous with “suitable habitat.” Your IPaC-generated species list will also tell you if designated critical habitat is present in the action area. Descriptions of PBFs can be found in species Recovery Plans and/or federal register documents. If designated critical habitat is present, determine if the essential PBFs are present. Complete the relevant section of the Species Determination Table.

Step 7: Addressing Northern Long-eared Bat (Updated 2/22/2023)

The NLEB has a 4(d) rule*, and under that rule, most intentional take is prohibited and incidental take without a permit is prohibited:

• At hibernation sites (includes disturbing or disrupting hibernating individuals and alternation of hibernation habitat, including cave or mine entrance, when bats are not present), or within ¼ mile of a known hibernation site.
• Within a 150-foot radius of a known, occupied maternity roost during the pup season (June 1- July 31).

Regarding your project, are you conducting any of the following types of activities?

• Tree cutting or removal
• Percussive activities (e.g., blasting, pile driving, jackhammering)
• Lighting
• Constructing or operating wind turbines
• Removal, maintenance, or modification of bridges, culverts, or other structures, including out buildings
• Prescribed burning

A. If no, then your determination may be “no effect”. You do not need to contact the Service or fill out the Determination Key, and may use your Species Determination Table to document your “no effect” determination, 

B. If yes, and you must conduct one or more of the listed activities above before March 31, 2023, and suitable habitat is present, then complete the Northern Long-Eared Bat (NLEB) Consultation and 4(d) Rule Consistency Determination Key on IPaC. Then notify our office that you need an expedited review of the 4(d) letter by sending an email to newengland@fws.gov. 

C. If yes, and you intend to conduct one or more of the listed activities above after March 31, 2023, and suitable habitat is present, and: 

1. If NLEB is the only species and there's no critical habitat on your Official Species List:
   • Please wait to start your ESA compliance work until additional consultation guidance for NLEB is available in March 2023. 
2. If NLEB is not the only species or critical habitat on your Official Species List:
   • Please wait to start your ESA compliance work for NLEB until additional consultation guidance is available in March 2023, but proceed with considering potential impacts to other species or critical habitats on your list by continuing to Step 8. 

* (Updated 2/22/2023) The Service published a final rule to reclassify the northern long-eared bat (NLEB) as endangered on November 30, 2022. The final rule will go into effect on March 31, 2023. After that date, the current 4(d) rule for NLEB will be invalid, and the 4(d) determination key will no longer be available. New compliance tools will be available in March 2023, and information will be posted in this section on our website and on the northern long-eared bat species page, so please check this site often for updates.  

Depending on the type of effects a project has on NLEB, the change in the species’ status may trigger the need to re-initiate consultation for any actions that are not completed and for which the Federal action agency retains discretion once the new listing determination becomes effective.  If your project may result in incidental take of NLEB after the new listing goes into effect, this will need to be addressed in an updated consultation that includes an Incidental Take Statement. Many of these situations will be addressed through the new compliance tools. If your project may require re-initiation of consultation, please wait for information on the new tools to appear on this site or contact our office for additional guidance. 

Step 8: Effects Determinations

A. Consider Potential Effects

Potential Effects to Listed Species/Critical Habitat: The next step in the project review process is to examine the potential ways in which your project and its associated activities may impact each listed species and/or designated critical habitat on your Official Species List. Effects may be direct (e.g. potential to injure, crush, disturb, kill any life stage) or indirect (e.g. changes to suitable habitat, impacts to food or water resources, etc.). Using the information you have gathered about the action area, project description, suitable habitat for species on your Official Species List, and presence of species/critical habitat, thoroughly consider the following:

• Time of year – will project activities occur when a species is active, hibernating, breeding, migrating, or foraging?
• What is the expected duration of the project, or specific activities? (e.g. tree clearing, construction, etc.)
• Will effects be temporary or permanent? (e.g. permanent change in habitat type or construction of permanent structures vs. noise and human presence during construction). If a project will occur when a species is not present in the action area, could there still be effects to habitat that may impact the species when it returns (e.g. migratory birds, nesting habitat that is only used seasonally)?
• If designated Critical Habitat for a species is on your Official Species List, are there any potential ways in which the project could adversely impact essential physical and biological features that may be present within the action area?
• Have you drawn your action area correctly to encompass all potential effects from a project (e.g. downstream of a project that may impact water resources, etc.)?

Conservation Measures/BMPs: Once you have examined the potential effects from project activities, you can consider whether there are existing aspects of the project design that already contribute to avoiding and minimizing potential adverse effects. You may also consider whether or not there are additional conservation measures or BMPs (e.g. time of year restrictions, avoiding suitable habitat) that could be implemented to avoid or minimizes potential effects to listed species and/or Critical Habitat. If you need suggestions for conservation measures or BMPs, please contact our office.

B. Make an Effects Determination (Federal Agencies Only*)

The Federal agency providing a permit, funding, grant, authorization, loan, etc., associated with the proposed project is ultimately responsible for making a section 7 determination for each species on the species list after evaluating the potential for effects. If you are consulting on behalf of a Federal agency as a designated non-federal representative (should have written authorization) or carrying out an activity, coordinate with the Federal agency to make an assessment of impacts to federally listed threatened and endangered species from proposed project activities. Please complete the Species Determination Table with any conservation measures or BMPs identified while considering potential effects and make an effects determination for each species and/or designated critical habitat.

Section 7 Effects Determinations include:

• No effect: possible conclusions that may lead to this determination include situations where a species is not present or no suitable habitat is present.
• May affect, not likely to adversely affect (NLAA): possible conclusions that may lead to this determination include situations where suitable habitat is present but the species is not present, where suitable or potential habitat is present and the species may be present or is confirmed present, but the project is extremely unlikely to impact the species, when critical habitat is present, but the project would cause extremely minor impacts, or when the effects of the project on the species are only beneficial.
• May affect, is likely to adversely affect (LAA): adverse effects to a listed species, its habitat, or designated critical habitat may occur as a direct or indirect result of the proposed action or its interrelated or interdependent actions. Please contact our office for further guidance.

 *If you are a consultant or individual WITHOUT Federal agency involvement (any action authorized, permitted, funded, or carried out), project review with the New England Field Office pursuant to section 7 of the ESA is not required but other provisions in the ESA still apply. For instance, no person is authorized to "take" (kill, injure, harm, harass, etc.) listed species without appropriate authorization from the Service. Therefore, we provide technical assistance to individuals and State or local agencies to assist with project planning to avoid the potential for "take," or when appropriate, to provide assistance with their application for a take permit pursuant to section 10 of the ESA. For more information on incidental take permits and associated Habitat Conservation Plans (HCPs), please review the Service's HCP page for information. Please contact the New England Field Office with any questions or requests for technical assistance.

Step 9: Complete Project Evaluation and Compile Your Project Review Package If Necessary

Please be sure to follow all preceding steps before requesting ESA consultation. If your determinations are:

• No effect - If the ESA section 7 determinations for all species (except the northern long-eared bat*) and critical habitat is “no effect”, no further consultation with this office is required. If you need documentation of ESA compliance for your files, please use your Official Species List and complete Species Determination Table as documentation. You should not submit a project review package.
• May affect not likely to adversely affect (NLAA) - If the ESA section 7 determination for any species or critical habitat is "may affect not likely to adversely affect" (except the northern long-eared bat – see Step 7, and you have not made any “may affect likely to adversely affect” determinations, you should submit a project review package to this office for informal review.
  • Please prepare a review request letter using our Project Review Request Letter Template.  In this letter, you will document the project description, describe the habitat within your action area, identify whether suitable habitat may or may not be present, examine potential effects from project actions, document your reasons for the determinations you have made for each species, and request our concurrence with your determinations.
  • In addition to the letter, please include other relevant project review package items listed in the table below.
• May affect likely to adversely affect (LAA) - If your ESA section 7 determination for any species or critical habitat is “may affect likely to adversely affect” or you are unsure of whether or not adverse effects are likely to occur, please contact us before submitting your project package, as we may be able to recommend potential conservation measures to avoid adverse effects or your project may require a more in-depth BA/BE and formal consultation.

If the ESA section 7 determination for any listed species or critical habitat, other than the Northern Long-eared Bat, is "may affect" the Federal agency should submit a Project Review Package to the New England Field Office to initiate consultation. We will respond after we receive a complete project review package, which includes:

Project Review Package Submission Guidelines:

• Format and size: consolidate documents into a single PDF if possible, smaller than 25MB. If a single email would be larger than 25MB, let us know and we will arrange for you to submit your document using our File Transfer program.
• Subject Line: indicate the name of your project, location, and Project Code (found on Official Species List).
• Receipt Confirmation: All Project Review Submissions 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 as part of your official record of ESA compliance.
• Email the Project Review Package to the following email address: newengland@fws.gov

If you have questions or comments concerning this process or are stuck at any step, please reach out to a consulting biologist if you know who you will be working with, or send an email to newengland@fws.gov.
 

Streamlined Consultation Guidance for Select Project Types

Telecommunication Tower Projects

The U.S. Fish and Wildlife has determined that individual project review for certain types of activities associated with telecommunication towers is not required. We are not aware of adverse impacts to listed or proposed species from maintenance or co-location on existing communication towers in New England; therefore, there is no need to contact this office for technical assistance or a 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 consultation for these activities. 

For telecommunication tower projects that do not meet the letter criteria, please follow the general Project Review Process by starting at Step 1. For recommendations on new telecommunication tower siting, construction, operation, and decommissioning, please also refer to the Service's Revised Recommended Best Practices for Communication Towers.

Please print the Communication Tower Streamlined Consultation Letter as documentation of "no effect" for a project meeting the following criteria:

• the re-licensing of existing telecommunication facilities;
• audits of existing facilities associated with acquisition;
• routine maintenance of existing tower sites, such as painting, antenna or panel replacement, upgrading of existing equipment, etc.;
• co-location of new antenna facilities on/in existing structures;
• repair or replacement of existing towers and/or equipment, provided such activities do not significantly increase the existing tower mass and height, or require the addition of guy wires.

Routine Highway Maintenance Projects

The U.S. Fish and Wildlife Service has determined that individual project review for certain types of activities associated with routine highway maintenance and upgrade activities is not required. For highway maintenance projects that do not meet the letter criteria, please follow the general Project Review Process by starting at Step 1.

Please use the Routine Highway Maintenance Projects Streamlined Consultation Letter as documentation of "no effect" for a project limited to the following types of actions on existing roadways:

• resurfacing projects;
• intersection improvements, including the construction of traffic signals;
• routine maintenance and installation of guard rails.

2016 EPA NPDES Small MS4 Permit Renewal Projects in MA and NH

If you are submitting an MS4 Notice of Intent in Massachusetts or New Hampshire, your project may be eligible to use a consultation letter developed by USFWS for projects that meet specific conditions. If your project is not eligible to use these letters, please follow our step-by-step consultation guidance by starting at Step 1. 

Please visit the following links to determine your eligibility and download a letter:

• Appendix C: Endangered Species Guidance
• USFWS Consultation Letter for Certifying under Criterion B (MA)
• USFWS Consultation Letter for Certifying under Criterion B (NH)