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Federal Endangered Species Act Section 7 Consultation Process (12-FD-c)

Section 7 of the Endangered Species Act (ESA) requires each federal agency to actively engage in efforts to conserve and recover threatened and endangered species. The ESA requires federal agencies, in consultation with the Secretary of the Interior, to “insure that any action authorized, funded, or carried out by such agency… is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species[.]” 16 USC 1536(a)(2). Section 7(a)(2) consultation may take on different forms, as described below. See generally ESA Consultation Handbook.


Early Consultation

Section 7(a)(3) of the ESA allows developers to initiate an early consultation process before filing an application for a federal permit or license. The purpose of early consultation is to “reduce the likelihood of conflicts between listed species or critical habitat and proposed [projects].” 50 CFR 402.11(a).


Informal Consultation

The Federal Energy Regulatory Commission (FERC) requires that developers participate in informal consultation with NOAA Fisheries (NOAA) and the United States Fish and Wildlife Service (FWS) (together the "Services") and respond to ESA section 7 matters on behalf of the agency. 18 CFR 380.13(b); FERC ESA Guidelines, pages 14-16.


Informal consultations:

  • Assist in identifying whether listed and proposed species or designated and proposed critical habitat may be in the action area;
  • Determine what effect the project may have on identified species or critical habitat;
  • Explore alternatives to modify the action to reduce or remove adverse effects to species or critical habitat;
  • Identify information gaps; and
  • Determine whether formal consultation is required.

FERC ESA Guidelines.


Formal Consultation

Formal consultation is generally required if a project may affect a listed species or designated critical habitat. The Services and FERC use formal consultation to determine whether a project is likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. 50 CFR 402.14.


Informal and Formal Conferences

If a species is proposed for listing, but not yet listed, section 7(a)(4) of the ESA requires federal agencies to “confer” with the Services. 16 USC 1536(a)(4).

Regulations governing Section 7(a)(2) consultation requirements can be found at 50 CFR 402.


Endangered Species Act Section 7 Consultation Process Process

12-FD-c.1 to 12-FD-c.3 – Request Designation as Non-Federal Representative

When the developer files a Notice of Intent to seek a new license or renew an existing license, the developer should submit a request to FERC asking to be designated as a non-federal representative for the purpose of conducting informal consultations with the Services and responding to Endangered Species Act (ESA) section 7 consultation matters. 18 CFR 380.13(b).

Informal consultation is a process that includes all discussions, correspondence, and interactions between the Services and the non-federal representative prior to consultation. 50 CFR 402.02; 50 CFR 402.13. The Services and the developer use informal consultation to assist in identifying whether listed and proposed species or designated and proposed critical habitat may be in the action area; determine what effect the project may have on identified species or critical habitat; explore alternatives to modify the action to reduce or remove adverse effects to species or critical habitat; identify any information gaps; and determine whether formal consultation is required. FERC ESA Guidelines, page 6.

FERC issues a letter to the Services and developer, designating the developer as the non-federal representative. The letter outlines the responsibilities of the non-federal representative (developer) and identifies a point of contact within FERC who will provide technical advice and review prepared ESA information. FERC ESA Guidelines, pages 14 and 16.


12-FD-c.4 to 12-FD-c.5 – Is a Coordination Meeting Warranted?

FERC encourages developers to schedule an early coordination meeting with the Services to discuss party expectations, develop schedules, and to identify the information that is currently available and information that is still needed to facilitate the section 7 consultation process. FERC ESA Guidelines.

12-FD-c.6 to 12-FD-c.7 – Does the Developer Request an Early Consultation?

Section 7(a)(3) of the ESA allows developers to initiate early consultation with the Services prior to filing an application for a federal permit or license. The purpose of the early consultation is to “reduce the likelihood of conflicts between listed species or critical habitat and proposed actions.” 50 CFR 402.11(a). Early consultation has not generally been used for non-federal hydropower projects, but this form of consultation may be useful where few or no changes to a developer’s proposal affecting listed species are expected after an application is filed, such as with a settlement. FERC ESA Guidelines, page 7.

FERC will not initiate early consultation unless requested to do so by the developer. Once FERC receives the request from the developer, it initiates consultation in accordance with 50 CFR 402.14(c). The procedures for the early consultation are identical to those for the formal consultation. At the end of the early consultation process, the Services produce a preliminary biological opinion, which is identical to an actual biological opinion, except that the incidental take statement does not authorize the taking of listed species. See 50 CFR 402.11(c)-(d).

The Services may confirm the preliminary opinion as the biological opinion if the Services review the proposed action and find that the project and information used during the early consultation have not changed. If, after receiving a written request for confirmation from the developer, the Services evaluate the preliminary opinion and cannot confirm it as the biological opinion, FERC must initiate formal consultation. See 50 CFR 402.11(f).

12-FD-c.8 to 12-FD-c.9 - Request Species and Habitat List

Regardless of whether the parties conduct an early coordination meeting, the developer requests a list from the Services identifying listed or proposed species and designated or proposed critical habitats that may be present in the project area. The developer should also request that the Services identify any candidate species likely to become listed during the licensing process. FERC ESA Guidelines.

Within 30 days of receiving the developer’s request, the Services must provide a written list identifying any listed or proposed species and designated or proposed critical habitat that may be present in the project area. 50 CFR 402.12(d).


12-FD-c.10 to 12-FD-c.11 - Are Additional Studies Needed?

The developer is responsible for conducting any additional studies or surveys needed to identify the presence of listed, proposed, or candidate species or to determine the effects the project may have on such species. Prior to conducting additional surveys or studies, the developer should create a study plan, consult with the Services, and obtain any necessary permits. Once these studies are completed, the developer should request that the Services provide comments on the study results. FERC ESA Guidelines.


12-FD-c.12 to 12-FD-c.13 – Are Listed Species or Critical Habitat Present?

If no listed or proposed species and no designated or proposed critical habitat are present in the project area, further consultation in not required. If proposed species or critical habitat are present, the developer must confer with the Services further in order to reduce potential effects to these resources. 50 CFR 402.12(d)(1).


12-FD-c.14 to 12-FD-c.16 – Is the Project a Major Construction Activity?

If the project constitutes a “major construction activity” and listed species or designated critical habitat are present in the project area, the developer must prepare a draft biological assessment. 50 CFR 402.12(d)(1). A “major construction activity” is a construction activity that is a major federal action that significantly affects the quality of the human environment, as referred to in the National Environmental Policy Act (NEPA) 50 CFR 402.02.

If the project is not a “major construction activity,” but listed species or designated critical habitat may be affected, the developer is still strongly encouraged, but not required, to prepare a draft biological assessment. If the developer elects not to prepare a biological assessment, the developer will provide endangered species information as part of an environmental report, environmental assessment, or a third-party environmental impact statement.


12-FD-c.17 – Draft Biological Assessment

As the designated non-federal representative, the developer is responsible for developing the draft biological assessment. Although the developer is only required to prepare a draft biological assessment if the project constitutes a major construction activity, FERC highly recommends that developers do so any time listed species may be affected by a project. FERC ESA Guidelines, page 14.

A draft biological assessment is prepared in the same manner as a standard biological assessment. A biological assessment refers to information prepared by the developer concerning “listed and proposed species and designated and proposed critical habitat that may be present in the [project] area and the evaluation [of] potential effects of the [project] on such species and habitat.” See 50 CFR 402.02; Section 7(c) of the ESA.

Although not all of the information below will be necessary in every case, a draft biological assessment may include the following:

  • Recent list of listed, proposed, or candidate species and designated or proposed critical habitat in the project area;
  • Description of the project;
  • Sufficient information to understand the potential effects of the project on identified species and habitat;
  • Effects of the project, recommendations, recovery plans, and potential for incidental take; and
  • Determination of effect for each listed or proposed species and designated or proposed critical habitat.

FERC ESA Guidelines, pages 19 and D-1 to D-7.


12-FD-c.18 to 12-FD-c.20 - Is the Species List more than 6 Months Old?

FERC will request a revised species list or prepare a revised list and ask the Services to concur if the pre-filing species list is more than 6 months old when FERC is ready to issue notice that the developer’s application is ready for environmental analysis.


12-FD-c.21 – May the Project Adversely Affect Proposed Species or Critical Habitat?

If proposed species or proposed critical habitat are present, FERC must confer with the Services. 50 CFR 402.12(d)(1). The Endangered Species Act requires FERC to confer with the Services if a project “is likely to jeopardize the continued existence of any species proposed to be listed . . . or result in the destruction or adverse modification of critical habitat proposed to be designated for such species.” 50 CFR 402.10.


12-FD-c.22 - Is the Project a “Major Construction Activity”?

As mentioned above, a “major construction activity” is a federal action that significantly affects the quality of the human environment, as referred to in NEPA.

If the project is not a “major construction activity” but listed species or critical habitat are likely to be affected, FERC must still provide the Services with a biological evaluation.


12-FD-c.23 – Biological Evaluation

A Biological Evaluation is an account of the basis for evaluating the likely effects of the project. ESA Consultation Handbook, page 3-11.

If the project constitutes a “major construction activity” and listed species or designated critical habitat are present in the project area, the developer must prepare a draft biological assessment.


12-FD-c.24 to 12-FD-c.25 - Did the Developer Prepare a Sufficient Biological Assessment?

FERC may adopt the developer’s draft biological assessment supplementing it as needed, and issue it as the agency’s biological assessment. FERC ESA Guidelines, pages 19 and 30.


12.FD-c.26 - Biological Assessment

FERC submits the biological assessment to the Services upon completion. The Services review the biological assessment for sufficiency. Although the contents of a biological assessment are discretionary, at a minimum it should evaluate the likely effects of the project on listed species or critical habitat. At a minimum, the contents of a biological assessment should include the following:

  • The results of an on-site inspection of the area affected by the project to determine if listed or proposed species are present or occur seasonally;
  • The views of recognized experts on the species at issue;
  • A review of the literature and other information:
  • An analysis of the effects of the project on species and habitat, including consideration of cumulative effects, and the results of any related studies; and
  • An analysis of any alternative actions considered by FERC for the project.

50 CFR 402.12. Because the biological assessment serves as the initiation package for formal consultation, it also includes the following information:

  • A description of the project;
  • A description of the area that may be affected;
  • A description of any listed species or critical habitat that may be affected;
  • A description of how the project may affect any listed species or critical habitat;
  • An analysis of the cumulative effects;
  • Relevant reports, including any EAs, EISs, or biological assessments; and
  • Any other available relevant information.

FERC ESA Guidelines.

A formal consultation may not begin until a biological assessment has been submitted to the Services (if required). When both proposed and listed species are found in the project area, an assessment of the potential impacts must be accomplished and address both the listed and proposed species/critical habitat.


12-FD-c.27 - Review Biological Assessment

The biological assessment contains FERC’s determination regarding the project’s effects on listed species and designated critical habitat. FERC will reach one of the following conclusions in the biological assessment or alternative environmental document:

  • No effect – meaning that no positive or negative effects are expected;
  • Not likely to adversely affect – meaning that all effects are either beneficial, discountable, or insignificant; and
  • Likely to adversely affect – meaning that all adverse affects cannot be avoided (even if minor or minimal) or incidental take is anticipated to occur.

FERC ESA Guidelines.

The Services review the completed biological assessment and FERC’s effects determination. If the project may affect a listed species or designated critical habitat, formal consultation is required. The formal consultation may not be initiated until the biological assessment has been submitted to the Services. If FERC determines that the project "may affect, but is not likely to adversely affect" listed species or designated critical habitat, it must seek concurrence from the Services. If the project will not affect a listed species or critical habitat, no concurrence is required, but FERC may discuss the determination with the Services and note the Services concurrence in the administrative record. See ESA Consultation Handbook, page 4-1; ESA Consultation Handbook, page 3-12.

Following the Services’ review of the biological assessment or other pertinent information, another informal effort may be appropriate to try to eliminate any residual adverse effects. If that effort results in elimination of potential impacts, the Services will concur in writing that the project, as revised and newly described, is not likely to adversely affect listed species or designated critical habitat. Since concurrence depends upon implementation of the modifications, the concurrence letter must clearly state any modifications agreed to during informal consultation. If agreement cannot be reached, FERC is advised to initiate formal consultation. ESA Consultation Handbook, page 3-12.


12-FD-c.28 to 12-FD-c.29 – Will the Project Affect Listed Species or Critical Habitat

If FERC determines that the project will not have any effect on a listed species or designated critical habitat, it will issue a "No effect" determination and seek concurrence from the Services. The Services have 30 days to respond and may request that FERC initiate formal consultation if it disagrees with the “No effect” finding. FERC ESA Guidelines.

A “No effect” finding ends FERC’s responsibilities under the ESA. However, FERC may discuss a "No effect" determination with the Services and note the Services’ general agreement in the administrative record. FERC ESA Guidelines.

12-FD-c.30 to 12-FD-c.32 - Is the Project Likely to Adversely Affect Species or Critical Habitat?

If FERC determines that all effects on species or critical habitat are expected to be beneficial, discountable, or insignificant, it will issue a "Not likely to adversely affect” determination. This requires written concurrence from the Services. The Services usually respond within 30 days. If the Services agree in writing, this ends FERC’s responsibilities under the ESA for both major and non-major construction projects. If the Services do not agree, it may suggest modifications to the project or request that the parties enter into formal consultation.

If FERC determines that the adverse effects of the project cannot be avoided or that incidental take is anticipated to occur, the agency will issue a “Likely to adversely affect” determination and must submit a request to the Services requesting Formal Consultation. FERC ESA Guidelines.

FERC initiates formal consultation through a written request to the Services. The request includes appropriate documents assessing the impacts of the project. In the case of a major construction activity, FERC is required to submit the biological assessment. The biological assessment, including a description of the effects of the project, must be submitted within 180 days of receipt of a species list from the Services. ESA Consultation Handbook, page 4-4.


12-FD-c.33 to 12-FD-c.35 – Is Information Provided Sufficient?

50 CFR 402.14(c) requires that an initiation package be submitted with the request for formal consultation and must include all of the following:

  • A description of the project to be considered;
  • A description of the specific area that may be affected by the project;
  • A description of any listed species or critical habitat that may be affected by the project;
  • A description of the manner in which the project may affect any listed species or critical habitat and an analysis of any cumulative effects;
  • Relevant reports, including any environmental impact statement, environmental assessment, or biological assessment prepared; and
  • Any other relevant available information on the project, the affected listed species, or critical habitat.

The Services must review the initiation package to determine whether it complies with the information requirements of 50 CFR 402.14(c) and the data requirements of 50 CFR 402.14(d). If it does not, the Services must notify FERC within 30 days. The "other relevant information" requirement gives the Services an opportunity to determine what project-specific information is needed to develop the biological opinion. FERC is obligated to submit the best data available or data "which can be obtained during the consultation..." 50 CFR 402.14(d). Although not required by 50 CFR 402.14, a topographic map showing the affected area is a useful addition to the initiation package.

If the ESA information provided is sufficient, FERC and the Services will begin formal consultation. The objectives during formal consultation include:

  • Assess the status of the species and/or critical habitat involved;
  • Verify the scope of the project, which includes identifying the area likely to be affected directly and indirectly by the project, and cumulative effects;
  • Identify adverse effects likely to result in jeopardy to the species and/or adverse modification of critical habitat;
  • Develop reasonable and prudent alternatives to a project likely to result in jeopardy or adverse modification;
  • Identify adverse effects not likely to jeopardize listed species, but which constitute "take" pursuant to section 9 of the Act;
  • Develop reasonable and prudent measures, and terms and conditions for the incidental take statement as appropriate; and
  • Identify conservation recommendations as appropriate.

ESA Consultation Handbook, page 4-6.

Formal consultation should conclude within 90 calendar days. If the consultation is expected to take more than 90 days and the Services and FERC mutually agree to extend the consultation period, the Services will send a letter to the developer identifying the reasons for the delay, the information required to complete the consultation, and the estimated date of completion. The Services may not extend the formal consultation beyond 150 days without the developer’s consent. 50 CFR 402.14(e).


12-FD-c.37 to 12-FD-c.38 – Draft Biological Opinion and Incidental Take Statement

After the formal consultation, the Services prepare a draft incidental take statement and a draft biological opinion.

Incidental Take

An incidental take is a take that results from, but is not the purpose of, carrying out an otherwise lawful activity conducted by FERC or the developer. 50 CFR 402.2. An incidental take statement exempts FERC and the developer from the ESA’s section 9 prohibitions “if they comply with the reasonable and prudent measures and the implementing terms and conditions of incidental take statements.” ESA Consultation Handbook, page 4-47. If a formal consultation is conducted and an incidental take statement is included in the biological opinion, FERC does not need to obtain a section 10 incidental take permit.

According to section 7(b)(4) of the ESA, an incidental take statement must be a written statement that:

  • Specifies the impact of such incidental taking on the species;
  • Specifies those reasonable and prudent measures that the Secretary of the Interior considers necessary or appropriate to minimize such impact;
  • In the case of marine mammals, specifies those measures that are necessary to comply with section 101(a)(5) of the Marine Mammal Protection Act with regard to such taking; and
  • Sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the federal agency or developer (if any), or both, to implement the measures specified above.

Title 50 CFR 402 Interagency Cooperation - Endangered Species Act of 1973, as Amended.

Takes will only be covered by the incidental take statement if they:

  • Are not likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat;
  • Result from an otherwise lawful activity; and
  • Are incidental to the purpose of the project.

ESA Consultation Handbook, page 4-48.

A biological opinion “is the document that states the opinion of the Service as to whether or not the [project] is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” 50 CFR 402.2.

Biological Opinion

The biological opinion should include:

  • A description of the project;
  • The status of the species/critical habitat;
  • The environmental baseline;
  • The effects of the project;
  • The cumulative effects;
  • The Services’ conclusion of jeopardy/no jeopardy and/or adverse modification/no adverse modification; and
  • Reasonable and prudent alternatives, as appropriate.

For a more detailed description of the format of the biological opinion, see ESA Consultation Handbook, page 4-15.

If the Services determine that the project is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat, the biological opinion is referred to as a “jeopardy biological opinion.” Jeopardy biological opinions indicate that FERC will violate section 7(a)(2) of the ESA if the project proceeds without modification. The jeopardy biological opinion recommends reasonable and prudent alternatives (if possible) that, if complied with, allow FERC to avoid violation of the ESA.

The Services ensure the biological opinion, including an incidental take statement, is prepared and delivered within 135 days of initiation of formal consultation. The consultation timeframe cannot be "suspended." If the Services need more time to analyze the data or prepare the final opinion, or FERC needs time to provide data or review a draft opinion, an extension may be requested by either party. Both the Services and FERC must agree to the extension. Extensions should not be indefinite, and should specify a schedule for completing the consultation. If a developer is involved in the project, extension must follow the procedures outlined by section 7(b)(1)(B) of the ESA. In accordance with 50 CFR 402.14(e), a consultation involving a developer cannot be extended for more than 60 days without the consent of the developer.

Once comments on the draft are received, the Services finalize and deliver the biological opinion to FERC and developer. The Services will not issue a final biological opinion before the 135th day if FERC is still reviewing the draft. ESA Consultation Handbook, page 4-7.

The Services, FERC, and the developer must discuss the review and evaluation conducted during formal consultation, the basis for any finding in the biological opinion, and the availability of reasonable and prudent alternatives (if a jeopardy biological opinion is issued) that FERC and developer can take to avoid violating of section 7(a)(2) of the ESA . The Services should develop reasonable and prudent alternatives in conjunction with FERC. After the draft biological opinion and draft incidental take statement are complete, FERC may request copies for review. Both the developer and FERC may comment on the drafts and submit comments to the Services. The Services will not issue the final biological opinion prior to the 135 day deadline or any extension while FERC reviews the draft. 50 CFR 402.14(g)(5).


12-FD-c.39 – Final Biological Opinion and Incidental Take Statement

Once comments are received from FERC and the developer, the Services finalize the biological opinion. The Service may seek an extension in order to make any clarifications or modifications necessitated by the comments. Once complete, the final biological opinion and incidental take statement are delivered to FERC. ESA Consultation Handbook, page 4-7.

After the issuance of a biological opinion, FERC must determine “whether and in what manner to proceed with the [project] in light of its section 7 obligations and the Service's biological opinion.” If the Services issue a jeopardy biological opinion, FERC must notify the Services of its final decision on the project. 50 CFR 402.15(a)-(b).


12-FD-c.40 – Conduct Informal Conference

The Services, FERC, and the developer may conduct an informal conference to assist with determining whether the project is likely to adversely affect proposed species or critical habitat. During the informal conference, the Services may advise FERC and the developer on ways to avoid or minimize adverse effects to proposed species or proposed critical habitat. ESA Consultation Handbook, page 6-1.


12-FD-c.41 to 12-FD-c.44 – Is the Project Likely to Jeopardize or Destroy Proposed Species or Critical Habitat?

If the parties determine that adverse effects are not likely, the Services will prepare a conference report. The conference report contains advisory recommendations for reducing adverse effects. The report is not binding, however, because FERC is not prohibited from adversely affecting proposed species or critical habitat until they are listed. ESA Consultation Handbook, pages 6-1 – 6-2.

If jeopardy to a proposed species or destruction or adverse modification of proposed critical habitat is likely, Section 7(a)(4) of the ESA requires FERC to initiate a formal conference with the Services. 50 CFR 402.10(b) However, FERC may request a formal conference at any time if FERC determines that the project may affect a proposed species. The Services may also initiate a conference if they determine, based on a review of available information, that a project is likely to jeopardize a proposed species or destroy or adversely modify critical habitat. If the Services initiate a conference, the Services will send a conference notice in the form of a letter or memorandum to FERC. If adverse effects are not likely, no conference is required. ESA Consultation Handbook, page 6-2; 50 CFR 402.10(b).

A formal conference is conducted in accordance with the procedures for formal consultation in 50 CFR 402.14, although it is conducted for proposed, not listed, species. 50 CFR 402.10(d).


12-FD-c.45 – Conference Opinion

At the end of the formal conference, the Services issue a conference opinion, which may later be certified as a biological opinion so long as no new information is developed and no significant changes are made that would alter the content of the opinion. 50 CFR 402.10(d). Information on the format of the conference opinion can be found in the ESA Consultation Handbook, pages 6-4 – 6-5.


12-FD-c.46 to 12-FD-c.49 – Is the Species Subsequently Listed?

If a proposed species or critical habitat is subsequently listed, FERC may request that the Services confirm and adopt the conference opinion as the biological opinion. The request must be made in writing, and the Services must confirm or deny the request within 45 days. The incidental take statement in the conference opinion is not effective until or unless the conference opinion is adopted by the Services. If the Services adopt the conference opinion, the section 7 consultation process is concluded. If the Services do not adopt the conference opinion, formal consultation between FERC and the Services will be required. ESA Consultation Handbook, page 6-6; 50 CFR 402.10(d).




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