We provide this information to help ensure that federal agencies fulfill their section 7 obligations while streamlining their interactions with U.S. Fish and Wildlife Service Ecological Services Field Offices.â€�&²Ô²ú²õ±è;
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.
Section 7 of the Endangered Species Act of 1973�(ESA) requires all federal agencies to use their authorities to conserve endangered and threatened species in consultation with the U.S. Fish and Wildlife Service (USFWS). This ‘proactive conservation mandate� for federal agencies is articulated in section 7(a)(1) of the law. Section 7(a)(2) contains a complementary consultation mandate for federal agencies, which we discuss below.
Section 7(a)(2) Mandate
Section 7(a)(2) directs all federal agencies to ensure that the actions they authorize, fund, or carry out do not jeopardize the continued existence of endangered or threatened species or destroy or adversely modify critical habitat. The section 7 implementing regulations () specify how federal agencies are to fulfill their section 7(a)(2) consultation requirements.
Section 7(a)(2) Responsibilities
Under the section 7 implementing regulations (), federal agencies must review their actions to determine whether they may affect endangered or threatened species or critical habitat. To accomplish this, federal agencies must determine whether any listed species may be 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  and whether that area overlaps with critical habitat. We explain how to do that in Step 1 of this guidance.
If one or more listed species may be present in the action area � or if critical habitat overlaps with the action area � agencies must evaluate the potential effects of their action (see Step 2 and Step 3 of this guidance). If no species or their critical habitat are present or affected, no consultation is required. Consultation will be either informal, ending with written concurrence from the USFWS, or formal. Formal consultation concludes when the USFWS delivers its biological opinion to the federal agency.
Requirements for Proposed Species and Proposed Critical Habitat
Agencies must confer with the USFWS per Section 7(a)(4) of the ESA if any action is likely to jeopardize a species proposed for listing or destroy or adversely modify proposed critical habitat. To determine whether either of these are likely, agencies may follow the same approach that we recommend for listed species and designated critical habitat � that is, evaluate the likely effects of their actions on any proposed species that may be present in the action area and on any proposed critical habitat that overlaps with the action area.
Determine whether a listed or proposed species or designated or proposed critical habitat may be present within the action area. Definitions provided below can be found in .
Listed species means any species of fish, wildlife, or plant which has been determined to be endangered or threatened under section 4 of the Act. Listed species are found in .
Proposed species means any species of fish, wildlife, or plant that is proposed in the Federal Register to be listed under section 4 of the Act.
Critical habitat refers to an area designated as critical habitat listed in or .
Proposed critical habitat means habitat proposed in the Federal Register to be designated or revised as critical habitat under section 4 of the Act for any listed or proposed species.
1.A. Define the action area for your project.
Action area means all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action ().
Figure 2 An example of the Endangered species page (left) and species information thumbnail (right) that is available in the Resources list generated by IPaC IPaC Information for Planning and Consultation (IPaC) is a project planning tool that streamlines the USFWS environmental review process
Learn more about IPaC for a project. Access to species guidelines, species profile pages, and other information is available from these pages. The red oval indicates the location where you can access any available species guidelines.
The Endangered Species part of the IPaC Resources list will include endangered species, threatened species, species proposed for listing, candidate species, and proposed and designated critical habitats.
If there are no species or critical habitats on the Endangered Species portion of the Resources list conclude "no species and no critical habitat present" and document your finding. No consultation under ESA section 7(a)(2) is required if the action would result in no effects to listed species or critical habitat.
If any species or critical habitats are on the Resources list, continue to 1.C.
1.C. Review any Species Guidelines attached to the Resources list from IPaC, species information pages, and other information sources. â€�&²Ô²ú²õ±è;
Cross-reference the species information with your knowledge of the action area, including the results of surveys.� Check the pertinent Species Guidelines and Species thumbnail available through the Resources list in IPaC for useful information sources (Figure 2).
Review Table 1 and Figure 3 to determine the next step for each species and critical habitat.â€�&²Ô²ú²õ±è;
Note that for some species or projects, IPaC will present you with Determination Keys.� You may be able to use one or more Determination Keys to conclude consultation on your action.
Table 1. General guidelines for evaluating whether species on the IPaC Official Species List may be present in an action area. Plan and implement surveys and interpret results in coordination with the appropriate Ecological Services Field Office.
Is the Species� Habitat Present in the Action Area?
Species Survey Result
Conclusion
Next Step
Comments
No
Survey not warranted
Species not present in the action area
Consultation not required
Consider the potential for the species� habitat to become established in the action area before effects of the action have ended.
Yes
Survey(s) for species in the action area are negative
Species not present in the action area
Consultation not required
Consider the potential for the species to use the habitat during time periods outside of the survey window or before effects of the action have ended.
Yes
Survey data unavailable or inconclusive for action area
Assume species
is present in the action area
Proceed to Step 2
Yes
Survey(s) for species in the action area are positive
Figure 3 Steps to determine whether consultation is required due to effects to critical habitat. If not, consultation would still be required if any listed species may be affected.
Determine whether the proposed action may affect listed or proposed species or designated or proposed critical habitat. Five-year reviews and other information available on USFWS Species Profile pages may also help you to evaluate potential effects and to develop appropriate avoidance and minimization measures.
In step 1, you found that (1) a listed species is likely to be present in the action area or (2) it overlaps with critical habitat. In this step, you will determine whether your project may affect a listed species or critical habitat and whether consultation is required.
2.A. Describe the action and the effects of the action.
Identify stressors or effects to the species and to the essential physical and biological features (PBF) or primary constituent elements (PCE) of any critical habitat that overlaps with the action area.
Effects of the action are all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action but that are not part of the action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action ().
Physical or biological features essential to the conservation of the species. The features that occur in specific areas and that are essential to support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity (). Physical and biological features were formerly referred to as primary constituent elements.
2.B.1. Determine whether any of the species are 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.
Be sure to separately assess effects to critical habitat, if any overlaps with the action area (see 2.B.2.).
Stressors that affect species� resources may have consequences even if the species is not present when the project is implemented. For example, southwestern willow flycatchers have strong nest site fidelity. Removal of nesting habitat during the winter would affect their ability to attract a mate and find alternative habitat when they return in the spring.
2.B.2. If the action area does not overlap with critical habitat, go to Step 2.C. If it does, determine whether the proposed action or other activities that are caused by the proposed action will affect any of the PBFs/PCEs of critical habitat.�
Deconstruct the action into its component parts to be sure that you do not inadvertently exclude any potential consequences of the action. Go to Step 2.C.
2.C. Determine whether � and how � the species are likely to respond or critical habitat PBFs/PCEs are likely to change upon exposure.�
Determination and Next Steps
NoEffect
A "no effect" determination would be appropriate if the proposed action � and other activities that are caused by the proposed action � would have no consequences to listed species or critical habitat.
Document your finding. The ESA does not require consultation if the proposed action will result in no effect to listed species or critical habitat. The U.S. Fish and Wildlife Service does not provide concurrence with “no effect� determinations. Therefore, documentation of a “no effect� determination does not need to be submitted to the Ecological Services Field Office.
MayAffect
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. For example:
one or more individuals of a listed species may respond to a stressor caused by the proposed action or by other activities that are caused by the proposed action; or,
the proposed action or other activities that are caused by the proposed action may result in changes to one or more critical habitat PBFs in the action area.
To determine whether the potential effects are likely to be adverse, proceed to Step 3.
If the proposed action � or other activities that are caused by the proposed action � may affect proposed species or proposed critical habitat, determine whether a conference [ESA §7(a)(4)] is required ().
Adequacy of Information & Surveys
Agencies may base their determinations on the best evidence that is available or can be developed during consultation. Agencies must give the benefit of any doubt to the species when there are any inadequacies in the information. Inadequacies may include uncertainty in any step of the analysis.
If determinations are based on inadequate information, then the Federal agency has a “continuing obligation to make a reasonable effort to develop that information.�
To provide adequate information on which to base a determination, it may be appropriate to conduct surveys to determine whether listed species are present in the action area. Please contact the appropriate Ecological Services Field Office (Figure 4) for more information or see the survey guidelines that the USFWS has made available in IPaC.
Step 3
Determine whether listed or proposed species or designated or proposed critical habitat may be adversely affected.
In Step 2, you determined that the proposed action or other activities that are caused by the proposed action may affect a species or critical habitat. The next step is to describe the manner in which they will respond or be altered. Specifically, to assess whether the species/critical habitat is "not likely to be adversely affected" or "likely to be adversely affected." Consider the following in making your finding:
3.A. When you are basing your determination on effects to the species' habitat or other resources rather than to the species itself, conduct a two-part assessment:
Determine how the habitat or the resource will respond to the proposed action (for example, changes in habitat quality, quantity, availability or distribution); and
Assess how the species is expected to respond to the effects to its habitat or other resources.
3.B. Critical habitat analyses focus on how the proposed action will affect the PBFs/PCEs of the critical habitat in the action area.
Determine how the PBFs/PCEs will respond to the proposed action; and
Assess how this may affect the value of critical habitat for the species.
3.C. 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. Definitions provided below can be found in the Endangered Species Consultation Handbook.
If there will be only beneficial effects, conclude "may affect, not likely to adversely affect" and submit your finding and supporting rationale to the appropriate Ecological Services Field Office and request concurrence. Beneficial effects are contemporaneous positive effects without any adverse effects to the species.
If all effects of the action are expected to be insignificant, conclude "may affect, not likely to adversely affect" and submit your finding and supporting rationale to the appropriate Ecological Services Field Office and request concurrence. Insignificant effects relate to the size of the impact and should never reach the scale where take occurs. Based on best judgment, a person would not be able to meaningfully measure, detect, or evaluate insignificant effects.
If all effects of the action are expected to be discountable, then conclude "may affect, not likely to adversely affect" and submit your finding and supporting rationale to the appropriate Ecological Services Field Office and request concurrence. Discountable effects are those extremely unlikely to occur. Based on best judgment, a person would not expect discountable effects to occur.
A written request for concurrence with a not likely to adversely affect determination shall include information similar to the types of information described for formal consultation sufficient for the USFWS to determine if it concurs. Generally, this includes:
Description of the proposed action, including measures to avoid or minimize effects; �
Map or description of the action area; �
Information on listed species and critical habitat in the action area;
Information on the effects of the action on listed species and critical habitat.
It is very important to include the IPaC project code and a copy of your IPaC official species list with your request for concurrence. The Service will provide a written response to a request for concurrence within 60 days unless an extension of up to 120 days is mutually agreed upon between the Service, the Federal agency, and the applicant (if involved).
3.D. If you cannot conclude that the effects of the action will be wholly beneficial, insignificant, or discountable, check IPaC for Project Design Guidelines to determine whether there are any measures that may be implemented to avoid or minimize the negative effects.
If you modify your proposed action to include conservation measures, assess how inclusion of those measures will likely change the effects of the action.
Conservation measures may, for example, alter or eliminate the exposure of species or critical habitat PBFs/PCEs to stressors or they may modify how the species or PBFs/PCEs are likely to respond to such exposure. Repeat Step 2 and document your conclusion, as appropriate. Be sure to identify the specific conservation measures you intend to incorporate and their associated biological consequences.
3.E. If you cannot conclude that effects of the action will be wholly beneficial, insignificant, or discountable, submit a request for formal consultation to the appropriate Ecological Services Field Office. The written request must include all information listed in .
The IPaC Consultation Package Builder or biological assessment template should be used to ensure all required information is provided with the request for consultation. The required information generally includes:
Description of the proposed action, including measures to avoid, minimize, or offset effects; �
Map or description of the action area; �
Information on listed species and critical habitat in the action area; �
Information on the effects of the action on listed species and critical habitat and an analysis of cumulative effects; �
Relevant information provided by the applicant; and�
Other relevant information on the effects of the action on listed species or critical habitat.�
It is very important to include the IPaC project code and a copy of your IPaC official species list with your request for consultation. The Service will issue a biological opinion within 135 days of initiating consultation unless an extension is mutually agreed upon between the Service, the Federal agency, and the applicant (if involved).
