J-7 ESA Section 7 handbook March 1998.pdf

N62742-21-R-1800 Attachment 7

FOREWORD

It gives us great pleasure to introduce the final Section 7 Handbook. It is the culmination of much hard work by dedicated U.S. Fish and Wildlife Service and National Marine Fisheries Service employees. The Handbook provides internal guidance and establishes national policy for conducting consultation and conferences pursuant to section 7 of the Endangered Species Act of 1973, as amended. The purpose of the Handbook is to promote efficiency and nationwide consistency within and between the Services. The Handbook addresses the major consultation processes, including informal, formal, emergency, and special consultations, and conferences.

Through the section 7 consultation program, the Services strive to meet the consultation needs of all Federal Agencies. The Services work with their Federal partners to emphasize the identification and informal resolution of potential species conflicts in the early stages of project planning. They also provide information about listed, proposed, and candidate species and critical habitats to Federal agencies planning projects, and those applying for Federal permits and licenses. The Services work with Federal agencies on any action that is federally funded, authorized, or carried out that may affect a listed species and designated critical habitats. The Services advise the Agencies and applicants on how to avoid adversely impacting these species and habitats, and, where appropriate, the Services provide incidental take statements that allow take of threatened or endangered species that is incidental to an otherwise legal activity.

The Handbook will ensure consistent implementation of consultation procedures and development of associated documents by those biologists responsible for carrying out section 7 activities and provide the Services guidance necessary to assist other Federal agencies in meeting their responsibilities under section 7 of the Act. Although primarily targeted toward employees of the Services, other groups participating in the consultation process, including other Federal agencies, State, local, and tribal governments, private individuals, consultants, and industry groups should find the Handbook helpful in explaining section 7 processes and providing examples of various types of consultations.

We would like to take this opportunity to express our heartfelt thanks for the hard work and dedication of all those who have made the development of this Handbook possible. We especially want to thank those entities that have become conservation partners with our Agencies through this process. This document will be an important tool in threatened and endangered species conservation for our Nation.

Jamie Rappaport Clark Rolland A. Schmitten

* * * * * * Final ESA Section 7 Consultation Handbook, March 1998 * * * * * *

Director Assistant Administrator for Fisheries U.S. Fish and Wildlife Service National Marine Fisheries Service

ENDANGERED SPECIES ACT CONSULTATION HANDBOOK

PROCEDURES FOR CONDUCTING

SECTION 7

CONSULTATIONS AND CONFERENCES

U.S. FISH AND WILDLIFE SERVICE

NATIONAL MARINE FISHERIES SERVICE

March 1998 Final i

TABLE OF CONTENTS

LIST OF FIGURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

LIST OF EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Glossary of Terms used in Section 7 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xx

CHAPTER 1 - GENERAL INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1

1.1 INTRODUCTION TO SECTION 7 CONSULTATION . . . . . . . . . . . . . . . . . . . 1-1

1.2 AGENCY RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3

(A) Lead Regions for Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3

(B) Signature Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4

(C) Intra-Service Section 7 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5

(D) Information Standards and Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-6

Best available scientific and commercial data . . . . . . . . . . . . . . . . . . . . . . . . . 1-6

Writing and bibliographic style . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-7

(E) Early Alerts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-9

(F) Release of Draft Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-12

(G) Maintaining the Administrative Record . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-12

CHAPTER 2 - COORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1

2.1 COORDINATION WITH OTHER ENDANGERED SPECIES ACT

FUNCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1

(A) Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1 ii

(B) Recovery Planning and Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1

(C) Section 10 Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4

Endangered and threatened species permits - section 10(a)(1)(A) . . . . . . . . . 2-4

Habitat conservation planning - section 10(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 2-4

Experimental populations - section 10(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-5

2.2 COORDINATION WITH THE ACTION AGENCY AND APPLICANT . . . . . 2-6

(A) Formal Consultations and Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-6

(B) Commitment of Resources during Consultation . . . . . . . . . . . . . . . . . . . . . 2-7

(C) Dealing with Nonresponsive Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-10

Agencies that refuse to consult or confer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-10

Agencies that refuse to reinitiate consultation . . . . . . . . . . . . . . . . . . . . . . . . 2-10

(D) Compliance with Section 7(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-11

No jeopardy and/or no adverse modification finding . . . . . . . . . . . . . . . . . . 2-11

Jeopardy/adverse modification finding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-11

Incidental take statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-12

(E) Role of the Permit or License Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . 2-12

Identification of an applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-12

Applicant's role in the consultation process . . . . . . . . . . . . . . . . . . . . . . . . . . 2-13

(F) Role of the Non-Federal Representative . . . . . . . . . . . . . . . . . . . . . . . . . . 2-13

2.3 COORDINATION BETWEEN FWS AND NMFS . . . . . . . . . . . . . . . . . . . . . . 2-14

2.4 COORDINATION WITH OTHER FEDERAL AGENCIES . . . . . . . . . . . . . . . 2-14

iii

2.5 COORDINATION WITH STATE AGENCIES . . . . . . . . . . . . . . . . . . . . . . . . . 2-16

2.6 COORDINATION WITH TRIBAL GOVERNMENTS . . . . . . . . . . . . . . . . . . 2-16

CHAPTER 3 - INFORMAL CONSULTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-1

3.1 THE INFORMAL CONSULTATION PROCESS . . . . . . . . . . . . . . . . . . . . . . . . 3-1

3.2 IDENTIFICATION, RESOLUTION, AND CONSERVATION . . . . . . . . . . . . . 3-6

3.3 TECHNICAL ASSISTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6

3.4 BIOLOGICAL ASSESSMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-10

3.5 CONCURRENCE/NONCONCURRENCE LETTERS . . . . . . . . . . . . . . . . . . . 3-12

CHAPTER 4 - FORMAL CONSULTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-1

4.1 THE FORMAL CONSULTATION PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . 4-1

4.2 INITIATING FORMAL CONSULTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-4

4.3 EVALUATING INITIATION PACKAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-4

4.4 FORMAL CONSULTATION PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

(A) Timeframes for Formal Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

(B) Coordination with other environmental reviews . . . . . . . . . . . . . . . . . . . . 4-11

4.5 COMPONENTS OF A FORMAL CONSULTATION . . . . . . . . . . . . . . . . . . . 4-11

Introductory Paragraph . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-12

Consultation history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-12

(A) Biological opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-15

Description of the proposed action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-15

Status of the species/critical habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-19 iv

Environmental baseline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-22

Effects of the action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-23

Cumulative effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-30

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-31

Analyses for jeopardy and adverse modification . . . . . . . . . . . . . . . . . . . . 4-33

Reasonable and prudent alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-41

(B) Incidental Take Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-43

What is incidental take? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-43

Amount or extent of take anticipated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-47

Effect of the take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-49

Reasonable and prudent measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-50

Terms and conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-51

Coordination of incidental take statements with other laws, regulations, and policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-53

Section 10 permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-53

Safe Harbor Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-54

Migratory birds including bald eagles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-56

Marine mammals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-57

(C) Conference Report/Conference Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-58

(D) Conservation Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-59

(E) Reinitiation Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-60 v

(F) Literature Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-60

4.6 PROCEDURES FOR MODIFYING BIOLOGICAL OPINIONS AND

INCIDENTAL TAKE STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-61

4.7 HANDLING CLASSIFIED DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-64

4.8 PROTECTION OF CONFIDENTIAL BUSINESS INFORMATION . . . . . . . . 4-64

4.9 DISTRIBUTION OF FINAL FORMAL CONSULTATION DOCUMENTS . . 4-65

CHAPTER 5 - SPECIAL CONSULTATIONS AND REVIEWS . . . . . . . . . . . . . . . . . 5-1

5.1 PROACTIVE CONSERVATION REVIEWS - Section 7(a)(1) . . . . . . . . . . . . 5-1

5.2 NATIONAL CONSULTATIONS - Section 7(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 5-2

(A) Pesticide consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-2

(B) Other national consultations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-4

5.3 REGIONAL OR ECOSYSTEM CONSULTATIONS . . . . . . . . . . . . . . . . . . . . . 5-4

5.4 STREAMLINED CONSULTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

(A) Activities in the Pacific Northwest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

(B) Interagency Streamlined Consultation MOA . . . . . . . . . . . . . . . . . . . . . . . . 5-6

5.5 INCREMENTAL STEP CONSULTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-7

CHAPTER 6 - CONFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-1

6.1 THE NEED FOR CONFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-1

6.2 INFORMAL CONFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-1

(A) Conference Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-1

(B) Conference Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-2 vi

6.3 FORMAL CONFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-4

(A) Timeframes of Formal Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-4

(B) Format of Conference Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-4

Stand-alone conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-4

Conference included in a formal consultation . . . . . . . . . . . . . . . . . . . . . . . . . 6-5

(C) Confirmation of Conference Opinion as a Formal Consultation . . . . . . . . . 6-6

CHAPTER 7 - EARLY CONSULTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1

7.1 ELIGIBILITY FOR EARLY CONSULTATION . . . . . . . . . . . . . . . . . . . . . . . . . 7-1

7.2 PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-3

7.3 CONFIRMATION AS A FINAL BIOLOGICAL OPINION . . . . . . . . . . . . . . . . 7-3

CHAPTER 8 - EMERGENCY CONSULTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1

8.1 THE NEED FOR EMERGENCY CONSULTATION . . . . . . . . . . . . . . . . . . . . . 8-1

8.2 PROCEDURES FOR HANDLING EMERGENCY CONSULTATIONS . . . . . 8-1

(A) Initial Contact by the Action Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1

(B) Initiating Formal Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-4

(C) Emergency Biological Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-4

(D) Incidental Take Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-5

(E) Conservation Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-5

CHAPTER 9 - MONITORING AND REPORTING . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1

9.1 MONITORING IMPLEMENTATION/EFFECTS OF REASONABLE AND

PRUDENT ALTERNATIVES AND MEASURES . . . . . . . . . . . . . . . . . . . . . . 9-1 vii

9.2 TRACKING COLLECTIVE EFFECTS ON SPECIES AND

THEIR HABITATS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-2

(A) FWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-2

(B) NMFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-6

SUGGESTED READING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-7

APPENDICES

(A) REGULATIONS AND POLICIES RELATING TO CONSULTATION

(B) FORMATS FOR CONSULTATION

(C) EXAMPLES OF CONSULTATION

(D) FWS SOLICITOR OPINIONS

(E) U.S. FISH AND WILDLIFE SERVICE INTRA-SERVICE CONSULTATION

HANDBOOK

(F) FWS/NMFS OFFICES HANDLING SECTION 7

(G) EXEMPTION PROCESS

(H) INTERAGENCY MEMORANDUM OF AGREEMENT ON STREAMLINED

CONSULTATIONS

viii

LIST OF FIGURES

PAGE

Figure 2-1 Application of section 7(d): 2-9 irreversible or irretrievable commitment of resources

Figure 3-1 Informal consultation process 3-3

Figure 4-1 Formal consultation process 4-3

Figure 4-2 Outline of a formal consultation 4-13 package

Figure 4-3 Example of an action area within 4-16 the species’ range

Figure 4-4 Example of an action area that 4-16 encompasses the species' range

Figure 4-5 Example of an action area involving 4-17 an effect not at the project site

Figure 4-6 Determining the action area 4-18

Figure 4-7 Effects of disturbance 4-24

Figure 4-8 Example of "recovery units" 4-38

Figure 6-1 Conference processes 6-3

Figure 6-2 Comparison of the conference 6-8 and consultation provisions of the Endangered Species Act

Figure 7-1 Early consultation process 7-2

Figure 8-1 Emergency consultation process 8-3

Figure E-1 Intra-Service consultation or conference process E-18 ix

LIST OF EXHIBITS

PAGE

Exhibit 1-1 Format for early alert 1-10

Exhibit 2-1 Example of discussion of species' 2-3 tolerance to disturbance

Exhibit 3-1 Example of a species list 3-4

Exhibit 3-2 Example of a need for survey 3-8

Exhibit 3-3 Example of a no effect response 3-14

Exhibit 3-4 Example of a concurrence letter 3-15

Exhibit 3-5 Example of a concurrence letter on a 3-17 beneficial effect

Exhibit 3-6 Example of a nonconcurrence letter 3-18

Exhibit 4-1 Example of a letter sent to inform 4-8 action agencies that the Service has received a complete initiation package

Exhibit 4-2 Example of a letter sent when a 4-9 complete formal consultation request has not been received

Exhibit 4-3 Example of a request for extension 4-10 of time

Exhibit 4-4 Example of modification of an 4-62 incidental take statement

Exhibit 7-1 Sample letter to prospective applicants 7-5 about early consultation rights

Exhibit 8-1 Emergency consultation notification 8-6 memorandum x

Glossary of Terms used in Section 7 Consultations

Act - the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.

Action - all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations;(c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air. [50 CFR §402.02]

Action area - all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. [50 CFR §402.02]

Affect/effect - to affect (a verb) is to bring about a change ("The proposed action is likely to adversely affect piping plovers nesting on the shoreline"). The effect (usually a noun) is the result ("The proposed highway is likely to have the following effects on the Florida scrub jay"). "Affect" appears throughout section 7 regulations and documents in the phrases "may affect" and "likely to adversely affect." "Effect" appears throughout section 7 regulations and documents in the phrases "adverse effects," "beneficial effects," "effects of the action," and "no effect." [Proper grammatical usage]

Anticipated/allowable/authorized - in incidental take statements, the Services determine the amount or extent of incidental take "anticipated" (expected) due to the proposed action or an action modified by reasonable and prudent alternatives. When writing incidental take statements, use only the phrase "anticipated" rather than "allowable" or "authorized," as the Services do not allow or authorize (formally permit) incidental take under section 7.

[Clarification of usage]

Applicant - any person (an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States) [ESA §3(12)] who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action.

[50 CFR §402.02]

Appreciably diminish the value - to considerably reduce the capability of designated or proposed critical habitat to satisfy requirements essential to both the survival and recovery of a listed species. [Clarification of usage] xi

Best available scientific and commercial data - to assure the quality of the biological, ecological, and other information used in the implementation of the Act, it is the policy of the Services to: (1) evaluate all scientific and other information used to ensure that it is reliable, credible, and represents the best scientific and commercial data available; (2) gather and impartially evaluate biological, ecological, and other information disputing official positions, decisions, and actions proposed or taken by the Services; (3) document their evaluation of comprehensive, technical information regarding the status and habitat requirements for a species throughout its range, whether it supports or does not support a position being proposed as an official agency position; (4) use primary and original sources of information as the basis for recommendations; (5) retain these sources referenced in the official document as part of the administrative record supporting an action; (6) collect, evaluate, and complete all reviews of biological, ecological, and other relevant information within the schedules established by the Act, appropriate regulations, and applicable policies; and (7) require management-level review of documents developed and drafted by Service biologists to verify and assure the quality of the science used to establish official positions, decisions, and actions taken by the Services during their implementation of the Act. [59 FR 34271 (July 1, 1994)]

Biological assessment - information prepared by, or under the direction of, a Federal agency to determine whether a proposed action is likely to: (1) adversely affect listed species or designated critical habitat; (2) jeopardize the continued existence of species that are proposed for listing; or (3) adversely modify proposed critical habitat. Biological assessments must be prepared for "major construction activities." See 50 CFR §402.02. The outcome of this biological assessment determines whether formal consultation or a conference is necessary.

[50 CFR §402.02, 50 CFR §402.12]

Biological opinion - document which includes: (1) the opinion of the Fish and Wildlife Service or the National Marine Fisheries Service as to whether or not a Federal action is likely to jeopardize the continued existence of listed species, or result in the destruction or adverse modification of designated critical habitat; (2) a summary of the information on which the opinion is based; and (3) a detailed discussion of the effects of the action on listed species or designated critical habitat. [50 CFR §402.02, 50 CFR §402.14(h)]

Candidate species - plant and animal taxa considered for possible addition to the List of Endangered and Threatened Species. These are taxa for which the Fish and Wildlife Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposal to list, but issuance of a proposed rule is currently precluded by higher priority listing actions. [61 FR 7596-7613 (February 28, 1996)]

Conference - a process of early interagency cooperation involving informal or formal discussions between a Federal agency and the Services pursuant to section 7(a)(4) of the Act regarding the likely impact of an action on proposed species or proposed critical habitat.

Conferences are: (1) required for proposed Federal actions likely to jeopardize proposed xii species, or destroy or adversely modify proposed critical habitat; (2) designed to help Federal agencies identify and resolve potential conflicts between an action and species conservation early in a project's planning; and (3) designed to develop recommendations to minimize or avoid adverse effects to proposed species or proposed critical habitat. [50 CFR §402.02, 50

CFR §402.10]

Conservation - the terms "conserve," "conserving" and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the] Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. [ESA §3(3)]

Conservation measures - are actions to benefit or promote the recovery of listed species that are included by the Federal agency as an integral part of the proposed action. These actions will be taken by the Federal agency or applicant, and serve to minimize or compensate for, project effects on the species under review. These may include actions taken prior to the initiation of consultation, or actions which the Federal agency or applicant have committed to complete in a biological assessment or similar document.

Conservation recommendations - the Services' non-binding suggestions resulting from formal or informal consultation that: (1) identify discretionary measures a Federal agency can take to minimize or avoid the adverse effects of a proposed action on listed or proposed species, or designated or proposed critical habitat; (2) identify studies, monitoring, or research to develop new information on listed or proposed species, or designated or proposed critical habitat; and (3) include suggestions on how an action agency can assist species conservation as part of their action and in furtherance of their authorities under section 7(a)(1) of the Act. [50 CFR §402.02]

Constituent elements - physical and biological features of designated or proposed critical habitat essential to the conservation of the species, including, but not limited to: (1) space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and (5) habitats that are protected from disturbance or are representative of the historic geographic and ecological distributions of a species. [ESA §3(5)(A)(i), 50 CFR §424.12(b)]

Critical habitat - for listed species consists of: (1) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of the Act, on which are found those physical or biological features (constituent xiii elements) (a) essential to the conservation of the species and (b) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. [ESA §3 (5)(A)] Designated critical habitats are described in 50 CFR §17 and 226.

Cumulative effects - are those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation. [50 CFR §402.02] This definition applies only to section 7 analyses and should not be confused with the broader use of this term in the National Environmental Policy Act or other environmental laws.

Designated non-Federal representative - the person, agency, or organization designated by the Federal agency as its representative to conduct informal consultation or prepare a biological assessment. The non-Federal representative must be designated by giving written notice to the Director. If a permit or license applicant is involved and is not the designated non-Federal representative, then the applicant and the Federal agency must agree on the choice of the designated non-Federal representative. [50 CFR §402.02, 50 CFR §402.08]

Destruction or adverse modification of critical habitat - a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical. [50 CFR §402.02]

Director - the Assistant Administrator for Fisheries for the National Oceanic and Atmospheric Administration; or the Fish and Wildlife Service Regional Director; or their respective authorized representative. [50 CFR §402.02]

Distinct Population Segment - "population," or "distinct population segment," are terms with specific meaning when used for listing, delisting, and reclassification purposes to describe a discrete vertebrate stock that may be added or deleted from the list of endangered and threatened species. The use of the term "distinct population segment" will be consistent with the Services' population policy. [61 FR 4722-4725 (February 7, 1996)]

Early consultation - a preliminary consultation requested by a Federal agency on behalf of a prospective permit or license applicant prior to the filing of an application for a Federal permit or license. [50 CFR §402.11]

Effects of the action - the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with xiv that action. These effects are considered along with the environmental baseline and the predicted cumulative effects to determine the overall effects to the species for purposes of preparing a biological opinion on the proposed action. [50 CFR §402.02] The environmental baseline covers past and present impacts of all Federal actions within the action area. This includes the effects of existing Federal projects that have not yet come in for their section 7 consultation.

Endangered species - any species which is in danger of extinction throughout all or a significant portion of its range. [ESA §3(6)]

Environmental baseline - the past and present impacts of all Federal, State, or private actions and other human activities in an action area, the anticipated impacts of all proposed Federal projects in an action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions that are contemporaneous with the consultation in process. [50 CFR §402.02]

ESA - the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.

FWS - the U.S. Fish and Wildlife Service.

Federal agency - any department, agency, or instrumentality of the United States. [ESA §3(7)]

Fish or wildlife - any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof. [ESA §3(8)]

Formal consultation - a process between the Services and a Federal agency or applicant that:

(1) determines whether a proposed Federal action is likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat; (2) begins with a Federal agency's written request and submittal of a complete initiation package;

and (3) concludes with the issuance of a biological opinion and incidental take statement by either of the Services. If a proposed Federal action may affect a listed species or designated critical habitat, formal consultation is required (except when the Services concur, in writing, that a proposed action "is not likely to adversely affect" listed species or designated critical habitat). [50 CFR §402.02, 50 CFR §402.14]

Habitat Conservation Plan - Under section 10(a)(2)(A) of the Act, a planning document that is a mandatory component of an incidental take permit application, also known as a Conservation Plan.

xv

Incidental take - take of listed fish or wildlife species that results from, but is not the purpose of, carrying out an otherwise lawful activity conducted by a Federal agency or applicant. [50 CFR §402.02]

Indirect effects - those effects that are caused by or will result from the proposed action and are later in time, but are still reasonably certain to occur. [50 CFR §402.02]

Informal consultation - an optional process that includes all discussions and correspondence between the Services and a Federal agency or designated non-Federal representative, prior to formal consultation, to determine whether a proposed Federal action may affect listed species or critical habitat. This process allows the Federal agency to utilize the Services' expertise to evaluate the agency's assessment of potential effects or to suggest possible modifications to the proposed action which could avoid potentially adverse effects. If a proposed Federal action may affect a listed species or designated critical habitat, formal consultation is required (except when the Services concur, in writing, that a proposed action "is not likely to adversely affect" listed species or designated critical habitat). [50 CFR §402.02, 50 CFR §402.13]

Interdependent actions - actions having no independent utility apart from the proposed action. [50 CFR §402.02]

Interrelated actions - actions that are part of a larger action and depend on the larger action for their justification. [50 CFR §402.02]

Is likely to adversely affect - the appropriate finding in a biological assessment (or conclusion during informal consultation) if any adverse effect to listed species may occur as a direct or indirect result of the proposed action or its interrelated or interdependent actions, and the effect is not: discountable, insignificant, or beneficial (see definition of "is not likely to adversely affect"). In the event the overall effect of the proposed action is beneficial to the listed species, but is also likely to cause some adverse effects, then the proposed action "is likely to adversely affect" the listed species. If incidental take is anticipated to occur as a result of the proposed action, an "is likely to adversely affect" determination should be made.

An "is likely to adversely affect" determination requires the initiation of formal section 7 consultation. [Clarification of usage]

Is likely to jeopardize proposed species/adversely modify proposed critical habitat - the appropriate conclusion when the action agency or the Services identify situations where the proposed action is likely to jeopardize the proposed species or adversely modify the proposed critical habitat. If this conclusion is reached, conference is required. [Clarification of usage]

Is not likely to adversely affect - the appropriate conclusion when effects on listed species are expected to be discountable, insignificant, or completely beneficial. Beneficial effects xvi are contemporaneous positive effects without any adverse effects to the species.

Insignificant effects relate to the size of the impact and should never reach the scale where take occurs. Discountable effects are those extremely unlikely to occur. Based on best judgment, a person would not: (1) be able to meaningfully measure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur. [Clarification of usage]

Jeopardize the continued existence of - to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. [50 CFR §402.02]

Letter - refers to all written correspondence, such as letters, memoranda, or electronic mail messages, relating to a formal or informal consultation. [Clarification of usage]

Listed species - any species of fish, wildlife or plant which has been determined to be endangered or threatened under section 4 of the Act. [50 CFR §402.02]

Major construction activity - a construction project (or other undertaking having similar physical effects) which is a major Federal action significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act (NEPA, 42

U.S.C. 4332(2)(C)). [50 CFR §402.02]

May affect - the appropriate conclusion when a proposed action may pose any effects on listed species or designated critical habitat. When the Federal agency proposing the action determines that a "may affect" situation exists, then they must either initiate formal consultation or seek written concurrence from the Services that the action "is not likely to adversely affect" [see definition above] listed species. [Clarification of usage]

Minor change rule - when preparing incidental take statements, the Services must specify reasonable and prudent measures and their implementing terms and conditions to minimize the impacts of incidental take that do not alter the basic design, location, scope, duration, or timing of the action, and that involve only minor changes. [50 CFR §402.14(i)(2)]

NMFS - the National Marine Fisheries Service.

No effect - the appropriate conclusion when the action agency determines its proposed action will not affect a listed species or designated critical habitat. [Clarification of usage]

Occupied critical habitat - critical habitat that contains individuals of the species at the time of the project analysis. A species does not have to occupy critical habitat throughout the year for the habitat to be considered occupied (e.g. migratory birds). Subsequent events affecting the species may result in this habitat becoming unoccupied. [Clarification of usage] xvii

Plant - any member of the plant kingdom, including seeds, roots, and other parts thereof.

[ESA §3(14)]

Population - "population," or "distinct population segment," are terms with specific meaning when used for listing, delisting, and reclassification purposes to describe a discrete vertebrate stock that may be added or deleted from the list of endangered and threatened species. The term "population" will be confined to those distinct population segments officially listed, or eligible for listing, consistent with section 4(a) of the Act and the Services' population policy.

[61 FR 4722-4725 (February 7, 1996)]

Preliminary biological opinion - the opinion issued as a result of early consultation. [50

CFR §402.02]

Programmatic consultation - consultation addressing an agency's multiple actions on a program, regional or other basis. [Clarification of usage]

Proposed critical habitat - habitat proposed in the Federal Register to be designated as critical habitat, or habitat proposed to be added to an existing critical habitat designation, under section 4 of the Act for any listed or proposed species. [50 CFR §402.02]

Proposed species - any species of fish, wildlife or plant that is proposed in the Federal Register to be listed under section 4 of the Act. [50 CFR §402.02]

Reasonable and prudent alternatives - recommended alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or the destruction or adverse modification of designated critical habitat. [50 CFR §402.02]

Reasonable and prudent measures - actions the Director believes necessary or appropriate to minimize the impacts, i.e., amount or extent, of incidental take. [50 CFR §402.02]

Recovery - improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the Act. [50 CFR §402.02]

Recovery unit - management subsets of the listed species that are created to establish recovery goals or carrying out management actions. To lessen confusion in the context of section 7 and other Endangered Species Act activities, a subset of an animal or plant species that needs to be identified for recovery management purposes will be called a "recovery unit" instead of a "population." [Clarification of usage] xviii

Section 4 - the section of the Endangered Species Act of 1973, as amended, outlining procedures and criteria for: (1) identifying and listing threatened and endangered species; (2) identifying, designating, and revising critical habitat; (3) developing and revising recovery plans; and (4) monitoring species removed from the list of threatened or endangered species.

[ESA §4]

Section 7 - the section of the Endangered Species Act of 1973, as amended, outlining procedures for interagency cooperation to conserve Federally listed species and designated critical habitats. Section 7(a)(1) requires Federal agencies to use their authorities to further the conservation of listed species. Section 7(a)(2) requires Federal agencies to consult with the Services to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. Other paragraphs of this section establish the requirement to conduct conferences on proposed species; allow applicants to initiate early consultation;

require FWS and NMFS to prepare biological opinions and issue incidental take statements.

Section 7 also establishes procedures for seeking exemptions from the requirements of section 7(a)(2) from the Endangered Species Committee. [ESA §7]

Section 7 consultation - the various section 7 processes, including both consultation and conference if proposed species are involved. [50 CFR §402]

Section 9 - the section of the Endangered Species Act of 1973, as amended, that prohibits the taking of endangered species of fish and wildlife. Additional prohibitions include: (1) import or export of endangered species or products made from endangered species; (2) interstate or foreign commerce in listed species or their products; and (3) possession of unlawfully taken endangered species. [ESA §9]

Section 10 - the section of the Endangered Species Act of 1973, as amended, that provides exceptions to section 9 prohibitions. The exceptions most relevant to section 7 consultations are takings allowed by two kinds of permits issued by the Services: (1) scientific take permits and (2) incidental take permits. The Services can issue permits to take listed species for scientific purposes, or to enhance the propagation or survival of listed species. The Services can also issue permits to take listed species incidental to otherwise legal activity. [ESA §10]

Service(s) - the Fish and Wildlife Service or the National Marine Fisheries Service (or both).

Species - includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. [ESA §3(16)]

Survival - For determination of jeopardy/adverse modification: the species' persistence as listed or as a recovery unit, beyond the conditions leading to its endangerment, with sufficient xix resilience to allow for the potential recovery from endangerment. Said another way, survival is the condition in which a species continues to exist into the future while retaining the potential for recovery. This condition is characterized by a species with a sufficient population, represented by all necessary age classes, genetic heterogeneity, and number of sexually mature individuals producing viable offspring, which exists in an environment providing all requirements for completion of the species' entire life cycle, including reproduction, sustenance, and shelter. [Clarification of usage]

Take - to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct. [ESA §3(19)] Harm is further defined by FWS to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns such as breeding, feeding, or sheltering.

Harass is defined by FWS as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding or sheltering. [50 CFR §17.3]

Threatened species - any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. [ESA §3(20)]

Unoccupied critical habitat - critical habitat not occupied (i.e., not permanently or seasonally occupied) by the listed species at the time of the project analysis. The habitat may be suitable, but the species has been extirpated from this portion of its range. Conversely, critical habitat may have been designated in areas unsuitable for the species, but restorable to suitability with proper management, if the area is necessary to either stabilize the population or assure eventual recovery of a listed species. As recovery proceeds, this formerly unoccupied habitat may become occupied.

Some designated, unoccupied habitat may never be occupied by the species, but was designated since it is essential for conserving the species because it maintains factors constituting the species' habitat. For example, critical habitat may be designated for an upstream area maintaining the hydrology of the species' habitat downstream. [Clarification of usage]

Wildlife - See "fish or wildlife".

xx

EXECUTIVE SUMMARY

Section 7

Section 7 of the Endangered Species Act (Act) [16 U.S.C. 1531 et seq.] outlines the procedures for Federal interagency cooperation to conserve Federally listed species and designated critical habitats.

Proactive Conservation Efforts by Federal Agencies

Section 7(a)(1) directs the Secretary (Secretary of the Interior/Secretary of Commerce) to review other programs administered by them and utilize such programs to further the purposes of the Act. It also directs all other Federal agencies to utilize their authorities in furtherance of the purposes of the Act by carrying out programs for the conservation of species listed pursuant to the Act.

This section of the Act makes it clear that all Federal agencies should participate in the conservation and recovery of listed threatened and endangered species. Under this provision, Federal agencies often enter into partnerships and Memoranda of Understanding with the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) for implementing and funding conservation agreements, management plans, and recovery plans developed for listed species. Biologists for the Services should encourage the development of these types of partnerships and planning efforts to develop pro-active approaches to listed species management.

Avoiding Adverse Effects of Federal Actions

Section 7(a)(2) states that each Federal agency shall, in consultation with the Secretary, insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. In fulfilling these requirements, each agency must use the best scientific and commercial data available. This section of the Act defines the consultation process, which is further developed in regulations promulgated at 50 CFR §402.

The Handbook

This handbook was primarily developed to aid FWS and NMFS biologists implementing the section 7 consultation process. The purpose of the handbook is to provide information and guidance on the various consultation processes outlined in the regulations. Additionally, the handbook will ensure consistent implementation of consultation procedures by those biologists responsible for carrying out section 7 activities. Chapters of the handbook deal xxi with major consultation processes, including Informal, Formal, Emergency, and Special Consultations; and Conferences.

Standardized language is provided for incorporation into Biological Opinion documents to achieve consistency and to ensure that all consultation documents are complete from a regulatory standpoint. Background information and example documents are provided in Appendices. Although primarily targeted towards employees of the Services, other groups participating in the consultation process, including other Federal agencies; State, local, and tribal governments; and private individuals, consultants, and industry groups should find the handbook helpful in explaining section 7 processes and providing examples of various types of consultations.

This handbook will be updated periodically as new regulations and policies are developed affecting implementation of the section…