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Compliance with the Federal Endangered Species Act

Section 7 of the Endangered Species Act

The Endangered Species Act (ESA) was passed by congress in 1973 with the purpose to protect and recover imperiled species and the ecosystems upon which they depend. The Endangered Species Act is administered by two agencies, the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS). The USFWS has primary responsibility for terrestrial and freshwater species, while the NMFS has responsibility over marine wildlife and anadromous fish. Under the ESA, species may be listed as either endangered or threatened. If a species is listed as endangered, it is in danger of extinction throughout all or a significant portion of its range. If a species is listed as threatened, it is likely to become endangered within the foreseeable future. All plants and animals, except for pest insects, are eligible for listing as endangered or threatened for the purposes of ESA.

Section 7(a)(2) of the ESA requires that for actions authorized, funded, or carried out by a Federal agency, that the agency shall, in consultation with USFWS and/or NMFS, ensure that the action is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of the critical habitat of the endangered or threatened species. Therefore, before any activity can be authorized by the Corps under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899, we must ensure that the project is in compliance with ESA.

Contents

Section 7 Consultation
No Effect
Informal Consultation
Formal Consultation
Information Required to Initiate Consultation
How to Obtain Information on Listed Species
Federal Agency Procedures
Compliance with Section 7
Programmatic Biological Opinions
Useful Links

Section 7 Consultation Overview

For any activity that requires authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act, the Corps will need to make a determination on whether the activity would affect a Federally listed endangered or threatened species. This requirement stands whether the activity would qualify for authorization under a Nationwide Permit or Regional or Programmatic General Permit or whether the activity would require processing under a Letter of Permission or Standard Permit. The consultation requirements for compliance with Section 7 of the ESA outlined below apply in cases where the applicant is not a Federal agency or in cases where the Corps is the lead Federal agency. Activities in which another Federal agency is the lead Federal agency for compliance with Section 7 of the ESA have an alternate process, which is described below .

No Effect

If the Corps determines that the activity requiring authorization would not affect a listed species, no consultation is required with the USFWS and/or NMFS. A determination that the activity would not affect a listed species is made by the Corps and cannot be made by the applicant, and must be made by the Corps. Generally, a determination of no effect would only be made if listed species do not occur and do not have the potential to occur on a site. If the Corps determines that the activity requiring authorization would affect a listed species, the Corps must initiate either informal or formal consultation with the USFWS and/or NMFS.

Informal Consultation

Informal consultation is defined within the ESA regulations (50 CFR 402.02) as a “process that includes all discussions, correspondence, etc., between the Service and the Federal agency or the designated non-Federal representative prior to formal consultation, if required.” Informal consultation with the USFWS and/or NMFS is initiated by a letter only when the Corps determines that a project may affect, but is not likely to adversely affect a Federally listed endangered and/or threatened species. This not likely to adversely affect (NLAA) determination is generally made by the Corps if it is determined that a species or habitat may exist on site, but either will not be affected by the project, or certain avoidance and minimization measures would be adopted by the applicant that would minimize the effects to the extent that the species or habitat would not be adversely affected. If the USFWS and/or NMFS agree with the Corps’ NLAA determination, they will respond via a letter of concurrence. In many cases a letter of concurrence for Section 7 of the ESA is based on mitigation measures (e.g. timing restrictions, best management practices, etc.) that are proposed by the applicant.

Formal Consultation

Formal consultation is defined within the ESA regulations (50 CFR 402.02) as a “process between the Service and the Federal agency that commences with the Federal agency’s written request for consultation under section 7(a)(2) of the Act and concludes with the Service’s Issuance of the biological opinion under section 7(b)(3) of the Act.” Formal consultation with the USFWS and/or NMFS is initiated by a letter only when the Corps determines that a project may affect and is likely to adversely affect a Federally listed endangered and/or threatened species. This determination of adverse affect is made by the Corps if it is determined that a species or habitat is present on the site and would be adversely affected by the project. The biological opinion will state the opinion of the USFWS and/or NMFS as to whether or not the Federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.

In cases where the USFWS and/or NMFS determines that the action will not violate Section 7(a)(2) of the ESA, the biological opinion will contain a statement concerning incidental take that: (1) specifies the impacts (amount of take) on the species; (2) specifies reasonable and prudent measures that are necessary or appropriate to minimize impacts; (3) in the case of marine mammals, specifies measures necessary to comply with Section 101(a)(5) of the Marine Mammal Protection Act of 1972 and applicable regulations with regard to the taking; (4) set forth terms and conditions (including, but not limited to reporting requirements) that must be complied with to implement the reasonable and prudent measures; and (5) specifies the procedures to be used to handle or dispose of any individuals of a species actually taken.

Formal consultation with the USFWS and/or NMFS is concluded with the issuance of the biological opinion.

Information Required to Initiate Consultation

In order to facilitate consultation with the USFWS and/or NMFS, applicants need to submit the following information to the Corps:

1. A description of the action to be considered.
2. A description of the specific area that may be affected by the action.
3. A description of any listed species or critical habitat that may be affected by the action.
4. A description of the manner in which the action may affect any listed species or critical habitat and an analysis of any cumulative impacts.
5. Relevant reports including any environmental impact statement, environmental assessment, or biological assessment prepared.
6. Any other relevant available information on the action, the listed species, or critical habitat.

Electronic submissions should be sent to [email protected].

This information is required and should be provided with all permit requests. Failure to do so may result in a delay in the Section 7 Consultation process. In addition, we recommend that you complete the ESA Information Guidlines, to assist in ensuring all of the required information is submitted. You should also provide us with an extra copy of the information so that it can be forwarded to the appropriate agency with our request for consultation. If consultation is required with both USFWS and NMFS, please send two additional sets of this information along with your application. If available, please provide an electronic version of the information on a compact disc.

How to Obtain Information on Listed Species

In many cases, applicants will utilize a consultant to prepare the information required to be submitted to the Corps for compliance with Section 7 of the ESA. For a list of consultants within the Sacramento District click here.

Federally listed species that may be affected by an activity will depend on the location of the activity. The Sacramento District boundaries include Nevada and Utah and portions of California and Colorado.

Within California, Federally listed endangered and/or threatened species include those under the jurisdiction of both the USFWS and the NMFS. Because Colorado, Nevada and Utah do not have marine mammals or anadromous fish, Federally listed endangered and/or threatened species are under the jurisdiction of just the USFWS. Information on species that may occur within specific geographic areas in the Sacramento District boundaries is as follows:

California

The Sacramento USFWS Office website provides a tool to generate species lists using either county names or specific U.S. Geological Survey 7.5 minute quadrangles. The list generated contains both terrestrial and freshwater species under the jurisdiction of the USFWS and marine mammals and anadromous fish species under the jurisdiction of NMFS. The species list generators can be accessed at http://www.fws.gov/sacramento/es_species/Lists/es_species_lists-overview.htm.

Nevada

The Nevada USFWS provides a list of protected species by county at http://www.fws.gov/nevada/protected_species/species_by_county.html. In addition, species lists may be obtained by visiting the IPaC website at http://ecos.fws.gov/ipac/wizard/chooseLocation!prepare.action.

Utah

The Utah USFWS maintains lists of listed species in several formats, through an interactive mapping tool, downloading species lists by county, or by visiting the IPaC website. The Utah USFWS website can be accessed at http://www.fws.gov/utahfieldoffice/EndSpp.html and IPaC can be accessed at http://ecos.fws.gov/ipac/wizard/chooseLocation!prepare.action.

Federal Agency Procedures

In accordance with ESA regulations at 50 CFR 402.07, when an action involves more than one Federal agency, compliance with Section 7 of the ESA may be fulfilled through a lead agency. Factors used to determine the lead Federal agency include: the time sequence in which the agencies would become involved, the magnitude of their respective involvement, and their relative expertise with respect to the environmental effects of the action. For an activity that requires authorization from the Corps, the Federal applicant (or lead Federal agency) should conduct early coordination with the Corps on the determination of the permit area. Prior to initiating consultation with the USFWS and/or NMFS, the Federal applicant should request that the Corps designate them to act on the Corps’ behalf for compliance with Section 7 of the ESA. Following completion of ESA consultation, the lead Federal agency should provide all relevant documentation to the Corps demonstrating any previous consultation efforts as it pertains to the Corps’ permit area. If the Corps does not designate another Federal agency as the lead for ESA, or if the documentation submitted does not demonstrate compliance with Section 7 of the ESA, the Corps will initiate consultation for compliance, as appropriate.

Compliance with Section 7

Provided there are no other outstanding information needs (e.g. alternatives information) and the project is in compliance with all other Federal laws (e.g. Section 106 of the National Historic Preservation Act, Section 401 of the Clean Water Act ), following completion of Section 7 consultation (through either the receipt of a letter of concurrence for NLAA determinations or through the receipt of a biological opinion) the Corps will make a decision on whether to verify the project under a Nationwide Permit or Regional/Programmatic General Permit, or whether to issue or deny a Letter of Permission or Standard Permit . If the Corps determines that it is appropriate to authorize the project, a special condition will be placed on the verification or permit requiring that the applicant comply with all of the terms and conditions of the biological opinion and/or follow all of the mitigation measures proposed as part of the project, which were relied on for the letter of concurrence. Failure to comply with the terms and conditions of the letter of concurrence and/or biological opinion may result in an enforcement action by the Corps and/or USFWS and/or NMFS.

Programmatic Biological Opinions

The USFWS and NMFS have established programmatic biological opinions that address multiple activities and species within California, which are available at the following links:

2004 - Projects with Relativesly Small Effects on the Delta Smelt (USFWS) (Delta Smelt (Hypomesus transpacificus))

2018 - Statewide Restoration Effort (NOAA) (Sacramento River winter-run Chinook salmon (Oncorhynchus tshawytscha), Central Valley spring-run Chinook salmon (O. tshawytscha), California Central Valley steelhead (O. mykiss), Southern Distinct Population Segment (sDPS) of North American green sturgeon (Acipenser medirostris))

2018 - NLAA Program (NOAA) ( Various Species and Essential Fish Habitat) (See Table 1 for complete list)

2018 - CDFW Fisheries Restoration Grant Program (FRGP) (USFWS) (Valley elderberry longhorn beetle (Desmocerus californicus dimorphus), giant garter snake (Thamnophis gigas), western distinct population segment (DPS) of the yellow-billed cuckoo (Coccyzus americanus), Least Bell's vireo (Vireo bellii))