Under provisions of section 7 of the federal Endangered Species Act, a federal agency that carries out, permits, licenses, funds, or otherwise authorizes activities that may affect a listed species must consult with the federal fish and wildlife agencies to ensure that its actions are not likely to jeopardize the continued existence of any listed species.
NOAA Fisheries/National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (US FWS) share responsibility for implementing the provisions of the Endangered Species Act. Whether it is the US FWS or NMFS that is consulted depends on the species; generally, US FWS manages land and freshwater species, while NMFS manages marine and anadromous species.
The process begins by the federal agency requesting a list of listed species in the area of the proposed project. If no species are affected, the project can proceed without further consultation. If the project may affect listed species, an informal consultation process begins during which if the federal agency determines that the action is not likely to adversely affect listed species and USFWS/NMFS agrees with that determination, concurrence is provided in writing and no further consultation is required.
If through the informal consultation process, the federal agency determines that the action is likely to adversely affect listed species, it must then request initiation of formal consultation. If the proposed action includes ‘major construction activities’ as defined by NEPA that would impact listed species or their critical habitat, a biological assessment must be prepared as part of the consultation initiation process. A biological assessment is not required if the action is not considered a major construction activity; however, if listed species are present in the action area, the federal agency must document to the Services its evaluation of the effects of the action to the listed species.
After the request for formal consultation is initiated, certain timelines apply. USFWS/NMFS is then allowed 90 days to consult with the agency and applicant (if any) and 45 days to prepare and submit a biological opinion; thus, a biological opinion is submitted to the federal agency within 135 days of initiating formal consultation.
USFWS/NMFS will make a determination on whether the proposed action will result in jeopardy of a listed species by looking at the current status of the species and the various effects – direct, indirect, interrelated, and interdependent – of the proposed federal action, as well as other non-federal actions that might occur. Jeopardy occurs when an action is reasonably expected, directly or indirectly, to diminish a species’ numbers, reproduction, or distribution so that the likelihood of survival and recovery in the wild is appreciably reduced.
At the conclusion of the consultation period, a biological opinion is issued that contains several components:
a. Jeopardy or No Jeopardy Opinion: The opinion as to whether a federal action is likely to jeopardize the continued existence of a threatened or endangered species or result in the destruction or adverse modification of critical habitat.
c. Incidental Take Statement: An Incidental Take Statement is included which exempts incidental take of a listed species from the Section 9 prohibitions and sets amount or extent of anticipated take due to the Federal action. The Endangered Species Act prohibits ‘take’ (defined as harming, killing, or harassing a listed species); incidental take resulting from a federal action may be allowed if approved through an incidental take statement. It is generally a specific number calculated as the number of individuals reasonably likely to be taken or the extent of habitat likely to be destroyed or disturbed.
d. Reasonable and Prudent Measures (RPMs): Reasonable and Prudent Measures are included as part of the Incidental Take Statement and are actions that USFWS/NMFS believes are necessary or appropriate to reduce the amount of incidental take. They are binding conditions included as part of the Incidental Take Statement, and are non-discretionary measures that must be undertaken by the federal agency.
e. Terms and Conditions: These set specific methods by which RPMs are to be accomplished and include reporting and monitoring of incidental take.
f. Conservation Recommendations
g. Requirements for re-initiation of consultation: Standard requirements for re-initiation are exceeding the amount of incidental take, modification of the agency’s action; new information to be considered, or new species listed and/or critical habitat designated.
If a biological opinion with a jeopardy determination is issued, the federal agency then has several options:
modify the proposed project and consult again with the Service;
decide not to undertake (or fund, or authorize) the project;
disagree with the opinion and proceed;
apply for an exemption.
A federal agency must comply with all reasonable and prudent measures (RPMs) and the implementing terms and conditions listed with the incidental take statement in order to avoid potential liability for any incidental take.