ESA Section 7 Consultation

ESA Section 7 Section 7
Section 7 Consultation The Endangered Species Act (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. Section 7 of the Act, called "Interagency Cooperation," is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species.

Learn more about Section 7 Consultation 

Section 7 of the ESA is titled Interagency Cooperation. It identifies the responsibilities of the Services (FWS and the National Marine Fisheries Service; NMFS) and federal agencies to utilize their authorities in furtherance of the purposes of the ESA. Section 7(a)(1) requires all federal agencies to carry out programs for the conservation of listed species, and section 7(a)(2) requires the agencies to ensure their activities are not likely to jeopardize the continued existence of federally listed species or destroy or adversely modify designated critical habitat. Section 7(a)(2) of the Endangered Species Act applies to all actions federal agencies Fund, Authorize, Permit; or Carry out in which there is discretionary Federal involvement or control.

Process

Informal Consultation

The Service encourages agencies to contact the local Service field office for information or pre-consultation technical assistance early in the project development process. The first step in informal consultation is a discussion or information exchange between the agency carrying out the action and the Service about the proposed action and any applicable conservation measures for consideration. The result of this will be a delineation of the action area action area
All areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action.

Learn more about action area and a determination of whether the action may affect listed species or critical habitat. The Service encourages agencies to use the digital project planning tool, Information for Planning and Consultation ( IPaC IPaC
Information for Planning and Consultation (IPaC) is a project planning tool that streamlines the USFWS environmental review process

Learn more about IPaC ), to get a list of species and critical habitats that may be present in the action area.

Launch IPaC

Determination 

If the proposed action may affect any listed species or critical habitat, then the agency must begin a formal consultation, unless the agency determines, with written concurrence of the Service, that the action is not likely to adversely affect listed species or critical habitat. If the agency determines that the proposed action will not affect any listed species or critical habitat, no further action is needed. The Service encourages agencies to use our digital consultation package builder tool, available on IPaC , to assist in this process.

Formal Consultation

During formal consultation, the agency and the Service share information about the proposed project and the species or critical habitat likely to be affected. Formal consultation may last up to 90 days, after which the Service will prepare a biological opinion. We will analyze all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action but that are not part of the action.

Conclusion of the Biological Opinion

The biological opinion will state whether the federal agency has ensured that its action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. A biological opinion may include reasonable and prudent measures necessary or appropriate to minimize the impact of the incidental take on the species.

We have 45 days after completion of formal consultation to write the biological opinion. The period for formal consultation and completion of the biological opinion may be extended through agreement of the agency (and applicant, as applicable) and the Service.

Legal Justification

Section 7(a)(1) of the ESA establishes an obligation for all Federal agencies to use their authorities in furtherance of the purposes of the ESA by carrying out programs for the conservation (i.e., recovery) of listed species. It also directs the Secretary (i.e., the Secretary of the Interior or the Secretary of Commerce) to review other programs they administer and to utilize such programs to further the purposes of the ESA.

Section 7(a)(2) states that “Each Federal action 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.” Authority to administer the ESA has been delegated by the Secretary of the Interior to the FWS Director and by the Secretary of Commerce to the NMFS Assistant Administrator. In fulfilling the requirements of section 7(a)(2), each agency must use “the best scientific and commercial data available.” The regulations governing interagency cooperation are at Title 50, part 402.