Asheville Ecological Services Field Office

Emergency responses to address immediate threat to human life and/or property from Hurricane Helene should proceed without any delay for Endangered Species Act review.

In line with the Endangered Species Act, during a presidentially declared disaster the process of reviewing federally funded, authorized, or implemented projects shifts in a way to ensure emergency response is not delayed. To learn about procedures for emergency Endangered Species Act project review, visit: https://www.fws.gov/library/collections/procedures-emergency-endangered…

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Asheville Field Office Project Review Guide

Overview

The Endangered Species Act (ESA) requires Federal agencies to consult with the U.S. Fish and Wildlife Service (Service) to ensure their activities, for example, project permitting, funding, etc., won’t jeopardize the continued existence of threatened or endangered species (a.k.a. listed species, because they are on the federal threatened and endangered species list) or adversely modify critical habitat.

This step-by-step guide walks federal agency staff or their designees through that consultation process, helping you create the appropriate documentation – a biological assessment or evaluation – to submit to the Service in fulfillment of federal agency obligations under 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 of the ESA.

Before you begin

This guide is only valid for the following North Carolina counties: Alexander, Alleghany, Anson, Ashe, Avery, Buncombe, Burke, Cabarrus, Caldwell, Catawba, Cherokee, Clay, Cleveland, Davidson, Davie, Forsyth, Gaston, Graham, Haywood, Henderson, Iredell, Jackson, Lincoln, Macon, Madison, McDowell, Mecklenburg, Mitchell, Polk, Rowan, Rutherford, Stanly, Stokes, Surry, Swain, Transylvania, Union, Watauga, Wilkes, Yadkin, and Yancey. For other North Carolina counties, contact the Service’s Raleigh Field Office.

Projects are reviewed on a first-come, first-served basis, so please plan accordingly. Our timelines:

• We respond to project review requests within 30 days.
• For projects that may affect but aren’t likely to adversely affect a listed species, we complete review (i.e., informal consultation) within 60 days.
• For projects that are likely to adversely affect a listed species, we complete review (i.e., formal consultation) within 135 days of receiving a complete biological assessment or evaluation.

Important notes

• Fundamental to quickly and successfully completing project review under Section 7 of the ESA is explaining how you reached your conclusions and including in your biological assessment or biological evaluation a thorough description of the information you used and the reasoning that led to your conclusions.
• At the bottom of this page, you’ll find several helpful documents, including a description of the key elements of a biological assessment or evaluation, as well as contact information for appropriate staff.

Step 1: Describe the action

To determine how your project may interact with listed or proposed species and their habitats, a detailed account of all project elements is necessary. Provide a detailed project description, including:

• Project purpose.
• The federal agency involved and their role.
• Maps with enough detail to discern project boundaries and 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 (see Step 2 for additional information about action area). Such maps should include but are not limited to: vicinity map with address and latitude/longitude in decimal degrees; property boundary or parcel maps; aerial and topographic maps; site plans – plan view, typical cross-sections, and engineering specifications. SHP or KML files are appreciated.
• Construction methods, including equipment, materials, description of percussive activities, use of lighting (type, location, etc.), and construction timing (time of year, time of day or night, etc.).
• Project and permitting timelines.
• Long-term operation and maintenance activities (mowing, herbicide use, etc.).

Include this description as the first part of your biological assessment or evaluation.

Step 2: Define the action area

Image Details

The next step in the analysis is to define your project’s action area. Note, the action area is all areas affected, directly or indirectly, by the Federal agency’s action and is not limited to the "footprint" of the action nor by the Federal agency's authority or action area. It encompasses temporary and permanent changes to land, water, and air caused by activities that are reasonably certain to occur and that would not occur but for the proposed federal action. To determine the action area, begin by marking the project footprint on a topographic map. A project footprint includes all ground disturbing activities (including access roads, staging areas, borrow pits, etc.) including tree removal. Working from the project footprint, identify other areas where individuals of a species or habitat may be affected by the project, during any phase – for example, during construction or during operation and maintenance. This may include areas outside the actual footprint. This often includes, but is not limited to:

• Changes in water quality, quantity, and/or flow (both surface and ground water - including precipitation once it hits the ground).
• Changes to air quality and/or flow.
• Changes to lighting – artificial or natural.
• Changes to sound.

The geographic extent of these effects defines your action area. Include this description in the second section of your biological assessment or evaluation.

Step 3: Generate an official species list and begin a species determination table

Now that you know your action area, begin the process of identifying what species and/or critical habitat may be present.

(Critical habitats are formally designated areas with physical or biological features (PBFs) essential to the conservation of listed species that may need special management or protection. Federal agencies must ensure their actions don’t appreciably diminish the value of critical habitat for listed species. Designated critical habitat has a legal status and definition and isn’t synonymous with “suitable habitat.”)

The Service has an online tool, the Information for Planning and Consultation system ( 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 help with the consultation process. IPaC provides, among other things, a list of listed and proposed species and critical habitat to be considered for a given action area. Use IPAC to generate an official species and critical habitat list for your action area:

• Go to IPaC (https://ecos.fws.gov/ipac/) and click “Get Started’.
• Find your location, define your action area based on your Step 2 findings, and confirm your location.
• An unofficial list of species is presented to you on the next page. If this list is printed, it will include a “not for consultation” watermark.
• Click “Define Project” on the left side of the screen under “What’s Next?” This will ask you for a “Project Name” and “Project Description.” Click “Save” then click “Request Species List” on the right-hand column under “What’s Next”. Answer the questions provided and click “Submit Official Species List Request” to obtain an official species list without the above-mentioned watermark. Print the PDF version of this list.
• If there are no listed species or critical habitat, your obligations under the ESA are complete.
• Species being considered for ESA listing, or “at-risk species,” aren’t included in your official species list, but we encourage you to consider them.

The official species and critical habitat list needs to be included in your biological assessment or evaluation. All requests submitted to the Asheville Ecological Services office must also include the Project Code identified on the Official Species List generated in IPaC.  

Note: There are Determination Keys available for some specific project types or species. These Keys can be accessed through IPAC, after receiving your official species list, by clicking on “Next Step: Determination Keys”. The following Keys are currently available for our work area and we encourage their use when applicable:

• Clearance to Proceed with Federally-Insured Loan and Grant Project Requests
• FHWA, FRA, FTA Programmatic Consultation for Transportation Projects affecting NLEB or Indiana Bat
• Northern Long-eared Bat Rangewide Determination Key - Due to the extremely widespread nature of northern long-eared bat, there exists national-level interim consultation guidance for addressing northern long-eared bat in project review. For more information, visit: https://www.fws.gov/species/northern-long-eared-bat-myotis-septentrionalis

When using a Key for consultation, please include the resulting PDF with the project review request.

Step 4: Begin a species determination table

Now that you know which species to consider, begin the process of determining how the project might affect them. If the official species list indicates listed, proposed, or candidate species may be present in the action area, create a table with the following columns: species, presence in the action area, information used, recommended determination, conservation measures incorporated into the project (see the example below). You’ll use this table, referred to as a determination table, to record how you expect the action to affect each of the species. Add the species from the official species list to the “Species” column. Upon completion, this table and the reasoning and evidence you used in populating it should be included in your biological assessment or evaluation. Continue to Step 5.

Step 5: Determine presence of listed species suitable habitat

Using information provided by IPaC, the Natural Heritage Program, or other reliable sources, 1) identify suitable habitat for each species listed on your table, 2) determine if the suitable habitat occurs within the action area, and 3) note this in your determination table. Also include in your table the information used to reach this conclusion. This information could include, but is not limited to, botanical species lists, stream bed substrate and flow regime descriptions, soil type, etc.

Step 6: Determine the presence of listed species

By this point, your IPAC-generated species list has told you which listed species may be in the action area, and you’ve determined if suitable habitat is present. Now, for species with suitable habitat present, determine if the species itself is present.

We may recommend species surveys to determine presence.

• For plant surveys, please reference the optimal survey times for plants document (found in the consultation resources link at the bottom of this page) to identify when plant surveys should occur.
• For Indiana bat, northern long-eared bat, or tricolored bat, please reference survey guidelines at this link - https://www.fws.gov/media/range-wide-indiana-bat-and-northern-long-eared-bat-survey-guidelines.
• For all other animals, please coordinate surveys with the Asheville Ecological Services office.

Those surveying for listed animals must have a section 10(a)(1)(A) permit from the Service, or be conducting surveys with a permitted individual or agency if there is a chance that animals will be captured and handled. Surveys must follow applicable guidelines, include a thorough search of suitable habitats within the action area, and occur during the appropriate survey window. Surveys outside appropriate survey times may not be accepted as valid without prior approval from the appropriate Service biologist. Add the outcome of any survey effort to the “Presence in Action Area” column of your table.

Alternatively, one can forgo surveys and assume a species is present and proceed accordingly.

Include a description of any species survey effort in your biological assessment or evaluation and include 1) the date of survey, 2) the surveyors and their credentials, 3) survey methodology, and 4) results.

Step 7: Determine the presence of critical habitat

Remember, critical habitat is not the same as suitable habitat. Critical habitat is formally designated as such, and if it is present, it will show up on the IPAC species and critical habitat list you generated in Step 3. If critical habitat is present, contact the field office (points of contact listed below) to determine next steps for assessing impacts to critical habitat. For species, continue to step 8.

Step 8: Determine the preliminary affect to the species

Now that you know the action area of the project, what the project will entail, and what species are present, you can determine the effects to the species and add them to your table.

Possible effects determination for listed species:

• No effect – If there is no suitable habitat for a species, or the suitable habitat has been avoided.
• May affect, not likely to adversely affect - If species habitat is present, but the species isn’t, as demonstrated by surveys conducted during approved survey windows by qualified individuals.
• May affect, not likely to adversely affect – 
  • If the species is present but all effects are wholly beneficial, insignificant, or discountable. There may be cases where this determination is possible with a commitment to sufficient conservation measures (see Step 9).
  • If there is suitable habitat and the species is assumed present (no valid species survey results), and all effects are wholly beneficial, insignificant, or discountable.
  • Beneficial effects have contemporaneous positive effects without adverse effects to the species or habitat. Insignificant effects relate to the size of the impact and include those that are undetectable, not measurable, or cannot be evaluated. Discountable effects are those extremely unlikely to occur.
• May affect, likely to adversely affect - If the species is present or assumed present and the action or its consequences are likely to negatively impact it and the impact is not insignificant or discountable.

Use these tips to avoid common determination flaws.

When the Federal agency proposing the action determines that a "may affect" situation exists, they must initiate formal consultation or seek written concurrence from the Service that the action is not likely to adversely affect listed species (50 CFR 402.14(a)).

Enter your effect determination for each species in the “Recommended Determination” column on your determination table. Include your rationale and evidence for each effect determination in your biological assessment or biological evaluation.

Step 9: Identify conservation measures and finalize effect determinations

Conservation measures are steps the action agency, or its designated agent, take to minimize the action’s negative impacts to listed species. These can include, but are not limited to, altering the timing of an action (on a seasonal or daily basis), altering the footprint of the project, or altering or adding project activities and practices to minimize or avoid impacts. For example, trees could be cut or structures demolished when bats will not be roosting in them; the footprint of a section of earth to be turned could be adjusted to exclude a population of a listed plants; or a strict sediment and erosion control plan could be put in place to protect an imperiled mussel. Other common conservation measures include on-site environmental training for contractors or placement of physical barriers between work and sensitive habitats or plants. If a "may affect" determination is made for a species, please include all measures proposed to avoid and minimize the potential impacts to each species and resource in the “Conservation Measures Incorporated into Project” column.

Incorporating sufficient conservation measures into a project may change effect determinations reached in Step 7. They can mean the difference between a project that is “likely to adversely affect” a species and a project that is “not likely to adversely affect” a species, or even a project which will have “no effect."

Once your conservation measures are identified, revisit your effect determinations from Step 7 to see if any need to be updated in the table and in the narrative of your biological assessment or evaluation.

If, after identifying conservation measures, a determination of “likely to adversely affect” is recommended for any species, you may be asked by the Service consultation biologist for more thorough and in-depth biological assessment than this step-wise process provides.

Enter conservation measures in the final column of the determination table below for each species.

Step 10: Compile your project review package, which will service as your biological assessment or evaluation

After completing Steps 1-9, compile the information listed below:

Step 11: Submit your package electronically following the guidelines below

• Format and size: Consolidate documents into a single PDF, smaller than 25MB. If a single email would be larger than 25MB, please consolidate items into the least number of documents and e-mails as possible.
• Subject line: In your email subject title, indicate the name of your project and the project county.
• Receipt confirmation: All project reviews will receive a return receipt to inform you that your project has been successfully submitted to this office.
• Keep records: Maintain a complete copy of the project review package in your files since it will become an integral part of your official record of compliance.

If you know the name of the consultation biologist reviewing your project, please email your package directly to them. If not, email your package to Rebekah Reid at rebekah_reid@fws.gov for forwarding to the appropriate biologist.

If you have questions or comments concerning this process, please contact Ms. Rebekah Reid at the email listed below.

To learn more about project review under the Endangered Species Act, visit these libraries

Connect with Service biologists versed in the Endangered Species Act project review process