Endangered Species Act (ESA) Section 7 Consultation

Endangered Species Act (ESA) Section 7 Consultation

June 7, 2023
Endangered Species Act (ESA) Section 7 Consultation
Section 7 of the Endangered Species Act (ESA; 16 U.S.C.
evaluating possible effects of the action is generically
§1536) requires federal agencies to ensure that actions they
referred to as a biological evaluation.
undertake, authorize, or fund are not likely to jeopardize
threatened or endangered species (i.e., listed species) or
If the project constitutes a major construction activity,
adversely modify designated critical habitat for listed
Section 7 requires the action agency to conduct an
species. To satisfy this mandate, Section 7 generally
evaluation known as a biological assessment (BA). The BA
requires federal agencies to consult with the U.S. Fish and
must be completed “before any contract for construction is
Wildlife Service (FWS) or the National Marine Fisheries
entered into and before construction is begun with respect
Service (NMFS)—together, the Services—when their
to such action.” The action agency prepares the BA, and its
proposed actions may affect listed species or critical
contents depend on the nature of the action. A BA may
habitat. FWS administers the ESA for terrestrial,
include a description of the proposed action; analyses of the
freshwater, and catadromous species, and NMFS
action’s effects on species and critical habitat, including
administers the act for marine and anadromous species. A
cumulative effects and any studies conducted to assess the
multistep process, generally referred to as Section 7
effects; expert opinions; reviews of scientific literature; and
consultation, is used to evaluate the effects of agency
analyses of the effects of any alternative actions the federal
actions on listed species and critical habitat and to consider
agency considered. An action agency may opt to conduct a
alternative actions that could minimize those effects.
BA even if the project is not a major construction activity.
Qualifying Federal Agency Actions
Through the biological evaluation, whether a BA or
The Section 7 consultation requirements apply to “any
otherwise, the action agency determines whether the action
action authorized, funded, or carried out” by federal
is likely to adversely affect any listed species or critical
agencies. The Services’ implementing regulations for the
habitat. If the agency concludes the action is not likely to
ESA interpret the term action to include “all activities or
adversely affect listed species or critical habitat, and the
programs of any kind” that federal agencies authorize, fund,
Services concur, further consultation generally is not
or carry out “in whole or in part.” Actions can include
required. Alternatively, if the action agency determines a
undertaking federal projects; granting federal permits,
proposed action may adversely affect listed species or
licenses, contracts, rights-of-way, leases, or funding to
critical habitat, then the agency generally must initiate
nonfederal entities; and promulgating federal regulations.
informal or formal consultation with the Service(s) with
jurisdiction over the species that may be affected.
As interpreted by the Services, not all agency actions are
subject to Section 7 requirements. Section 7 generally
Informal Consultation
applies to discretionary actions. Nondiscretionary federal
Informal consultation is an optional process that ESA
actions (i.e., actions directed by Congress in legislation)
regulations provide to help action agencies determine
may not require Section 7 consultation.
whether formal consultation is required. During informal
consultation, the action agency may correspond and meet
Consultation Process
with one or both of the Services about a proposed action.
The agency proposing the action (or, in some cases, its
Informal consultation may be initiated before or after the
delegated nonfederal representative) is often called the
biological evaluation is complete. Informal consultation
action agency. The action agency, and any applicable
gives the Services an opportunity to suggest ways the action
nonfederal entities, must determine whether listed species
agency could modify the proposed action to avoid any
or critical habitat may be present in the action area (area
anticipated adverse effects on listed species or critical
affected by the action). The ESA requires action agencies to
habitat. Informal consultations have significantly
request information from the Services as to whether listed
outnumbered formal consultations under the ESA. If the
or proposed species or critical habitat may be present. If the
action agency concludes the action is not likely to adversely
action agency determines that listed species or critical
affect listed species or critical habitat, and the relevant
habitat are not present in the action area, consultation with
Service(s) concurs in writing, the consultation process ends.
the Services generally is not required.
Formal Consultation
Biological Evaluation of Effects
If the action agency or Services conclude the action is likely
When listed species or critical habitat are or may be present
to adversely affect listed species or critical habitat, either
in the action area, the action agency typically must
through a BA or in informal consultation, the action agency
determine whether the proposed action may affect any listed
generally must initiate formal consultation. At that point,
species or critical habitat that are present. The process of
neither the action agency nor any nonfederal entity may
irreversibly commit resources that could potentially
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Endangered Species Act (ESA) Section 7 Consultation
foreclose alternative measures that might mitigate the
Expediting or Limiting Consultation
action’s effects until consultation is complete.
Programmatic Consultations
To initiate formal consultation, the action agency submits a
Programmatic consultations can be used, in some
written request to the Service(s) with jurisdiction over the
circumstances, to streamline the Section 7 consultation
species in the action area. The request describes the
process. Programmatic consultations allow action agencies
proposed action and its anticipated effects on listed species
to consult with the Services on multiple, frequently
(e.g., BA), along with any other relevant information. After
occurring, or routine actions in a particular geographic area
reviewing the information, the Services discuss the analysis
or on proposed programs, policies, or regulations that
and any potential reasonable and prudent alternatives
provide a framework for future actions. Individual projects
(RPAs) with the federal agency (and nonfederal entity, if
conducted under a program covered by a programmatic
applicable). RPAs are alternative actions that “can be
consultation generally require a separate consultation under
implemented in a manner consistent with the intended
Section 7, but this consultation is usually limited to specific
purpose of the action, that can be implemented consistent
aspects of the individual project, which can reduce the
with the scope of the Federal agency’s legal authority and
duration of consultation.
jurisdiction, that is economically and technologically
feasible.”
Emergency Consultation
The consultation process can be expedited for infrastructure
Biological Opinions
projects during certain emergency situations. In emergency
At the end of a formal consultation, the Service issues a
situations, regulations allow action agencies to follow an
biological opinion (BiOp). A BiOp states the Service’s
alternate consultation procedure that may reduce the extent
opinion as to whether the proposed action is likely to
of consultation required before taking action. For example,
jeopardize listed species or adversely modify their
an action agency may engage in informal consultation
designated critical habitat. The scientific information and
before undertaking action but complete formal consultation,
analysis in the BiOp must be based on the “best scientific
if needed, after the emergency conditions have subsided.
and commercial data available.”
If formal consultation is conducted after the action agency
If the Service finds that the proposed action is not likely to
responds to an emergency, the Service(s) prepares a BiOp
jeopardize listed species or adversely modify critical
to document the emergency, any actions taken, any effects
habitat, the BiOp is known as a no jeopardy opinion. If it
of the action on listed species and critical habitat, and
finds that the action may jeopardize listed species or
recommendations for future conservation measures to
adversely modify critical habitat, then the BiOp is known as
mitigate such effects. The BiOp includes an ITS authorizing
a jeopardy opinion. For jeopardy opinions, the Service must
any take that may have occurred during the emergency.
suggest any RPAs that could avoid jeopardizing listed
species or adversely modifying critical habitat. After a
Exemption from Section 7 Requirements
jeopardy BiOp is issued, the action agency decides whether
If a federal agency action may jeopardize listed species or
to proceed with the original action at risk of violating the
adversely modify critical habitat, the agency may apply to
ESA, to proceed with a proposed RPA, or not to proceed
the Endangered Species Committee for an exemption from
with the action. Most consultations result in no jeopardy
the ESA. To grant the exemption, the committee must
opinions, and nearly all of the rest identify RPAs for the
determine that there are no RPAs, that the benefits of
project that allow the action agency to move forward.
proceeding with the action outweigh the benefits of
alternative courses of action consistent with conserving
If the Service concludes the proposed action (or, in the case
species and their habitat, that the action is in the public
of a jeopardy opinion, the action as modified by an RPA)
interest and of national or regional significance, and that
would not jeopardize listed species or adversely modify
there was no prohibited irretrievable or irreversible
critical habitat, the Service includes an incidental take
commitment of resources before the exemption. The
statement (ITS) in the BiOp. The ITS describes the
committee has granted only two exemptions to date.
anticipated impact of any incidental take (i.e., harassing,
harming, killing, or otherwise taking the species, as defined
Waiving Section 7 Requirements
by the ESA, in the course of the otherwise legal action) and
Section 7 consultation requirements may be waived or
provides reasonable and prudent measures (RPMs) the
superseded in certain circumstances by other statutory
Service considers necessary to minimize that impact. The
provisions. For example, subsection 7(p) of the ESA
ITS includes terms and conditions requiring the action
provides that in a presidentially declared major disaster
agency and any involved nonfederal entity to implement the
area, the President may exempt federal agency actions
RPMs. As long as the action agency and any related
related to the “repair or replacement of a public facility
nonfederal entity comply with these terms and conditions,
substantially as it existed prior to the disaster” from the
they may take listed species pursuant to the ITS without
consultation requirements under Section 7 if other
violating the ESA’s prohibitions on take.
conditions are met.
Congress also has enacted laws to alter Section 7
consultation requirements for certain activities. In some
instances, Congress has waived consultation requirements
for specific infrastructure projects or areas of public land. In
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Endangered Species Act (ESA) Section 7 Consultation
other instances, Congress has delegated the authority to
Pervaze A. Sheikh, Specialist in Natural Resources Policy
waive consultation requirements to certain federal agencies.
IF12423
Erin H. Ward, Legislative Attorney

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