The Endangered Species Act of 1973, as amended (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the 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 of the ESA, called "Interagency Cooperation," requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure their activities do not jeopardize the continued existence of listed species or adversely modify designated critical habitat. This step-by-step guide walks you through that consultation process, and along the way creates a biological assessment or biological evaluation for submission to the Service.
Step 1: Delineate the Action Area
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 of a proposed project is all areas to be affected, directly or indirectly, by the Federal action and is not limited to the "footprint" of the action nor by the Federal agency's authority. A detailed account and analysis of all project activities is necessary to encompass all temporary and permanent changes to “land, water, and air” caused by activities that would not occur but for the proposed action and are reasonably certain to occur. Failure to correctly define the action area as instructed will result in incorrect outcomes and may not comply with the ESA.
To determine how your project may interact with listed or proposed species and their habitats, a detailed account of all project elements is necessary. Provide 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 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.
Construction methods, including equipment, materials, description of percussive activities, use of lighting (e.g., type, location), and construction timing (time of year, time of day/night, etc.).
Project and permitting timelines.
Long-term operation and maintenance activities (e.g., mowing, herbicide, etc.).
Step 3: Generate an Official Species List
Using the Service's IPaC IPaC Information for Planning and Consultation (IPaC) is a project planning tool that streamlines the USFWS environmental review process
Learn more about IPaC https://ecos.fws.gov/ipac determine if any listed, proposed, or candidate species occur in the action area. Follow the directions in IPaC to enter your project location and generate a species list. After selecting the appropriate project type, request a Resource List. The Official Resources List will include all federally-listed threatened, endangered, or candidate species that may occur in the vicinity of the action area and includes a map of the action area. IPaC will also identify, migratory bird habitat, National Wildlife Refuges, National Fish Hatcheries, and wetlands in the vicinity of your action area. Species being considered for ESA listing, or “at-risk species,” aren’t included in your official species list; but we encourage you to consider them in your project planning. More information about “at-risk species” can be found at the Southeast’s At-Risk Species Finder. Save the PDF version of this Official Resources List and add it to your project review package. After completing the steps in IPaC, exit that website and continue below.
Note that under the ESA, a species list is valid for only 90 days. New occurrences of listed, proposed, and candidate species and potentially suitable habitat are discovered periodically. Therefore, the South Carolina Ecological Services Field Office (SCESFO) recommends that you visit this website at regular intervals during project planning and implementation for updates to species lists and information.
Step 4: State Coordination
Determine whether a documented occurrence of any listed, proposed or candidate species is within the action area by contacting the South Carolina Natural Heritage Program (SCNHP); the agency maintains a database and has differing expertise and/or regulatory responsibility. Add any SCNHP documentation to the project review package. Note that SCNHP often does not have data on private lands. A lack of documented species by SCNHP does not provide assurance that the species is absent from the Action Area.
Ephemeral wetland in longleaf pine ecosystem in South Carolina, 2019. Gopher frog habitat. Photo by USFWS, Melanie Olds, 2019.
Step 5: Suitable Habitat and Species Presence
Using information provided by IPaC, the South Carolina Natural Heritage Program, or other reliable sources, identify suitable habitat for each species and determine if it occurs within the action area. Information used could include, but is not limited to, botanical species lists, stream bed substrate and flow regime descriptions, soil type, etc.
Refer to the Optimal Survey Times for Plants for additional guidance. Surveys are valid for a certain period of time based on the species' life history. If your existing survey is no longer valid or the survey does not include the entire action area, obtain a new survey. Handling or researching endangered plants or animals is a regulated activity. If you need a new survey, hire a qualified consultant with the necessary credentials and specialized experience to conduct the work. State and federal permits may be required for certain species.
If you can confirm suitable habitat is absent within the action area, document what source(s) of information you consulted and justification for this conclusion.
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, include this information in your project review package. It may be necessary to assume presence for species in these circumstances and consider implementing appropriate avoidance and minimization measures, accordingly.
Table 1. General guidelines for evaluating whether species on the IPaC Endangered Species list may be present in an action area. If species-specific survey guidelines are available, follow those guidelines to carry out surveys and to interpret results, as appropriate.
Is the species’ habitat present in the Action Area?
Species survey results
Conclusion
Next step
Comments
No
Not warranted
Species not present in action area
Consultation not required
Consider potential for the species’ habitat to become established in the action area.
Yes
Survey(s) confirm that species are absent in the action area
Species not present in action area
Consultation not required
Plan and implement surveys and interpret results in coordination with USFWS and/or in accordance with USFWS-recommended survey protocols.
Yes
Survey data in the action area are unavailable or inconclusive
Assume species is present in action area
Initiate consultation
Yes
Survey(s) confirm that species are present in the action area
To comply with section 7 of the ESA, the federal agency (or its designated non-federal representative) must analyze the proposed project for potential impacts to federally protected species and/or proposed or designated critical habitat. Using this analysis, the federal agency makes a determination of effect for federally protected species and/or proposed or designated critical habitat. To make a determination, identify stressors or effects to the species and to the essential physical and biological features of any critical habitat that overlaps with the action area. Are any species likely to be exposed to stressors caused by the proposed action? Consider all consequences of the action and assess the potential for each life stage of the species that occurs in the action area to be exposed to the stressors. Deconstruct the action into its component parts to be sure that you do not miss any part of the action that could cause effects to the species.
For federally protected species, the federal agency must make one of the following determinations for the proposed project: (1) no effect; (2) may affect, not likely to adversely affect, or (3) may affect, likely to adversely affect.
No Effect - A ‘no effect’ conclusion would be appropriate if the proposed action – or other activities that are caused by the proposed action – would have no consequences to listed species or critical habitat. Concurrence from the Service is not required.
May affect, not likely to adversely affect (MANLAA) - A proposed action warrants a "may affect, not likely to be adversely affect" 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.
May affect, likely to adversely affect (MALAA)- 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 any adverse effect to listed species may occur as a direct or indirect result of the proposed action or its interrelated or interdependent actions. If a determination of “may affect, likely to adversely affect” is made, the federal agency must initiate formal consultation with the Service (See 50 CFR 402 for additional information).
Note that for some projects or individual species (e.g., northern long-eared bat), IPaC will present you with Determination Keys. You may be able to use one or more Determination Keys to conclude consultation on your action.
Your IPaC-generated species list will also tell you if critical habitat is present in the action area, please evaluate whether project will have “no effect” or “may affect” and is “likely to adversely affect” or “not likely to adversely affect” critical habitat.
Identify stressors or effects to the essential physical and biological features of any critical habitat that overlaps with the action area. Deconstruct the action into its component parts to be sure that you do not miss any part of the action that could cause effects to critical habitat.
Clarify whether the project has a federal nexus, and identify the lead federal agency and, if applicable, designated representative acting on behalf of the federal agency;
Project description, including methods, timeline, map of project boundary, and action area including physical address/intersecting roads or GPS points.
Official resources list (i.e., IPaC report);
Biological Assessments (may include habitat assessments and species survey reports);
Effects determinations for species and critical habitat; and
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.
Please Note: Federal agencies and their non-federal designated representatives are not required to contact us for “no effect” determinations. Due to limited staff, SCESFO is unable to provide project-specific concurrence with no effect determinations. You can use the South Carolina Clearance for Species and Habitat Assessment Letter (attached to the dated IPaC species list report and supporting documentation) to document the SCESFO's policy of NOT providing concurrence with a no effect determination.
For "may affect, not likely to adversely affect” determinations, please submit your project review package, including detailed project description, effects determination, conservation measures, and all supporting documentation to charleston_regulatory@fws.gov.
Non-federal applicants may also request a project review to ensure compliance with the ESA.
The SCESFO strives to respond to all requests for informal Section 7 consultation on Federal projects, technical assistance requests for non-Federal projects, and public inquiries, within 30 days after all necessary information is received. Receipt of incomplete information may delay our response. If you have not received a response from us after 30 days, please submit a status request to charleston_regulatory@fws.gov.
Respond times vary depending on how far along the project is in the consultation process. The consultation process usually begins as informal consultation. The federal agency must initiate consultation when any action they authorize, fund, or carry out (such as through a permit) may affect a listed endangered or threatened species or designated critical habitat.
Blanket authorizations
Many of the projects reviewed by the SCESFO are considered routine and represent an insignificant impact to resources entrusted to the Service for conservation. Examples include minor construction, renovation or maintenance of property or equipment, change of use, funding or other activities that may have no discernable immediate or long-term effect upon protected species. Such proposals usually (or normally) do not require consultation with the Service as they do not result in take (prohibited under section 9 of the ESA) of an endangered species or adversely modify critical habitat as defined by the ESA. Further, they are usually considered as a National Environmental Policy Act (NEPA) Categorical Exclusion and may be approved through a Clean Water Act (CWA) nationwide permit. Even though these activities may not affect protected resources, documentation is frequently requested from the SCESFO.
To streamline these requests, the SCESFO has developed blanket authorizations for activities that routinely have minimal or no effect upon trust resources. Construction of cell towers and certain projects undertaken by the Department of Housing and Urban Development (HUD) and the U.S. Department of Agriculture (USDA) Rural Development Program are the most common project requests received. Therefore, the SCESFO provides the following guidelines for use by developers, consultants, landowners and government agencies. If the proposed project meets the specifications or suggestions within the documents, you may download the document and use it to satisfy appropriate requirements of the ESA. Please note that these guidance documents do not represent formal biological opinions. They do not provide incidental take authorization, nor do they allow for adverse modification of critical habitat.
Emergency consultations are used when there is a threat to human life and property (e.g. - natural disaster, oil spill). The primary objective of the responding agency must be to protect human life and property, and this objective takes precedence over minimizing adverse effects to listed species under the ESA. The Service needs to be present to provide conservation recommendations, advise on the possibility of jeopardy/adverse modification, and advise about documenting impacts for concluding consultation, formally or informally, after the threat to life and property is under control. Section 7 is always about relationships – all the more important with emergency situations. Click here for more information about emergency consultations.
Protect Other Wildlife Resources
Solar Power Project Planning in South Carolina
In June of 2018, South Carolina’s governor signed into law, the South Carolina Solar Habitat Act. This legislation allows the South Carolina Department of Natural Resources (SCDNR) to establish a framework for a voluntary solar habitat certification program, assisting solar developers in increasing the wildlife habitat value of their solar sites. Guidance has been created for solar developers that outlines best management practices that improve habitat for game birds, songbirds, pollinators, and small mammals and reduces storm water runoff and erosion at their sites. A working group has also been created to review and provide input on this guidance. For more information on SCDNR’s program, visit their website https://www.dnr.sc.gov/solar/
Avoid, Minimize, and Mitigate Impacts to Wetlands
Wetlands are vital for sustaining fish and wildlife populations. They provide important feeding, breeding, and migration habitat for a number of species. This includes 50 percent of our migratory bird species and over 30 percent of plants and animals listed under the ESA. Section 404 of the CWA establishes a program to regulate the discharge of dredge and fill material into waters of the United States, including wetlands. Activities in waters of the United States that are regulated under this program include fills for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports), and conversion of wetlands to uplands for farming and forestry.
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly administer the program. In addition, the Service, the National Marine Fisheries Service, and State resource agencies have important advisory roles and coordination with Service may be required under the Fish and Wildlife Coordination Act.
The Coastal Barrier Resources Act (CBRA) encourages the conservation of storm-prone and dynamic coastal barriers coastal barriers Learn more about coastal barrier landforms.
Learn more about coastal barriers by withdrawing the availability of federal funding and financial assistance within a designated set of units known as the Coastal Barrier Resources System (CBRS). The SCESFO recommends avoiding prohibited activities within the Coastal Barrier Resources System.
Documents to help facilitate the project planning and review process with the South Carolina Ecological Services Field Office
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Emergency consultations
Emergency consultations are used when there is a threat to human life and property (e.g. - natural disaster, oil spill). The primary objective of the responding agency must be to protect human life and property, and this objective takes precedence over minimizing adverse effects to listed species under the ESA. The Service needs to be present to provide conservation recommendations, advise on the possibility of jeopardy/adverse modification, and advise about documenting impacts for concluding consultation, formally or informally, after the threat to life and property is under control. 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.
Resources to guide and assist with Endangered Species Act Sec. 7 consultations in emergency situations.
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