Endangered Species Act and Eagle Act Project Review and Consultation
Overview
Note that if your project is permitted, funded, or carried out by a Federal agency, that agency is ultimately responsible for complying with the Endangered Species Act (ESA) in cooperation with the U.S. Fish and Wildlife Service (Service). If your project does not involve a Federal agency, then it is your responsibility under the ESA to determine if your project would result in take of federally listed species. Our project review process will allow you to determine whether or not federally listed species may be present near your project. The process, however, is not designed to assist you in determining whether your project will result in take of any listed species. If you are concerned that your project might take listed species, please contact the Maine Field Office. For more information see the Service's national consultation web page and Consultation Handbook (PDF).
If you have any questions on the process, please contact the Maine Field Office email (mainefieldoffice@fws.gov) or one of our staff biologists.
For wind energy projects (offshore and inland) additional review may be necessary to evaluate the project’s potential impacts to migratory birds, bats, eagles, and wetlands. All inland and offshore wind projects should go through the project review steps below. Additionally, all inland wind projects should address the U.S. Fish and Wildlife Service National Land-based Wind Energy Guidelines.
The following instructions will help you to conduct a review for federally listed threatened and endangered species and designated critical habitat, and bald eagle nests that may occur in your project area. At the end of this review process, you will be able to accomplish the following: (1) expedite additional review by the Service if required; or (2) certify that you have completed required coordination with the Service under the Endangered Species Act of 1973 (16 U.S.C. 1531-1544, 87 Stat. 884), as amended, and the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668c, 54 Stat. 250), as amended. This process also provides information for your project review under the National Environmental Policy Act of 1969 (P.L. 91-190, 42 U.S.C. 4321-4347, 83 Stat. 852), as amended.
During the review process, you will be instructed to obtain an official species list and complete a species summary table and add other information and documents, which will be included in your “project review package.” Once you complete the review process, you may be required to submit the project review package to the Maine Field Office or the Federal funding or permitting agency. Maintain a complete copy of the project review package, because it will become an integral part of your official record of coordination with the Service.
Through a series of five (5) steps, we will guide you through a process that will help you make an initial determination for the ESA whether your project may affect federally listed species or critical habitats. You will also determine whether your project will take or disturb bald eagles pursuant to the Bald and Golden Eagle Protection Act. The process will lead you to several web-based resources, and you will need to compile your information along the way on a species summary table. Note that if your project is permitted, funded, or carried out by a Federal agency, that agency is ultimately responsible for making the final determinations of whether your project may affect listed species under the ESA, in cooperation with the Fish and Wildlife Service.
To begin your project review, proceed to Step 1.
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Step 1
The first step is to define the proposed project . The action area is defined by regulation as all areas to be affected directly or indirectly by the action and not merely the immediate area involved in the action (50 CFR §402.02). This analysis is not limited to the "footprint" of the action nor is it limited by the Federal agency's authority. To determine your action area, mark the project footprint on an appropriate map, such as a topographic or aerial map. Identify the range of impacts such as:
- Ground disturbance
- Changes in water quality and quantity (both surface and underground water)
- Air quality impacts
- Lighting effects
- Noise disturbance
Draw a line around all of the affected areas. This is the action area.
This action area will be the area referenced in all steps below. You will need to develop a map that shows your project’s action area and include this map in your project review package. You should prepare maps or shapefiles of your action area prior to proceeding to Step 2. Failure to correctly define the action area as instructed will result in incorrect outcomes and may not comply with the ESA. Continue to Step 2.
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Step 2
Use the Service's Information for Planning and Consultation system (IPaC) to determine if any listed, proposed, or candidate species or their critical habitat may be present in the action area. The website will guide you through the process of obtaining an official species list.
Until the proposed project is implemented, check IPaC every 90 days to ensure that species information is current (by selecting “Need An Updated Species List” at your My Projects page). If any changes to the Official Species List occur, you must complete this process again for any newly identified species or critical habitats.
Save the PDF version of the “Official Species List” and add it to your project review package. After completing the appropriate steps in IPaC, continue with the steps below.
(A). If the IPaC Official Species List indicates that listed species or critical habitat may be present in the action area, add all of the species on the list to the first column of the species summary table. Continue to Step 3.
(B). If the official species list indicates that there are no listed species or critical habitats found in the action area, add “no species” to your species summary table. Continue to Step 4.
We recommend that you contact the State of Maine for information on the presence of state-listed fish and wildlife (Maine Department of Inland Fisheries and Wildlife) and plants(Maine Natural Areas Program).
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Step 3
Your Official Species List from IPaC only indicates the possible presence of a species at your project location based on general information about species ranges in Maine.
In this step you will provide us with more site specific information and determine if each species on your species summary table or their habitats likely occur within the action area. First, review the species information provided in IPaC, the Maine Field Office listed species pages, and any other sources of information (e.g., habitat assessments) available to help you determine if the species or its habitat occur in your action area. For example, are suitable young softwood forests present for Canada lynx? Are suitable rivers or streams present for Atlantic salmon?). At this time, the Maine Field Office has survey protocols for small whorled pogonia and northern long-eared bat. If you have questions regarding species survey methods, please contact the Maine Field Office for technical assistance.
(A) Is suitable habitat for listed species present in your action area?
If you can confirm suitable habitat is absent within the action area, indicate so in the species summary table for the appropriate species, and document what source(s) of information you consulted and why you reached that conclusion in the notes/documentation column of the species conclusions table. Add this documentation to your project review package.
If there may be suitable habitat for a listed/proposed/candidate species or if you are uncertain about whether the habitat types may support any listed/proposed/candidate species, we recommend a detailed habitat assessment. If the habitat assessment concludes suitable habitat is absent, add "no suitable habitat present" to the conclusion column in the species conclusions table for the appropriate species, and include why you reached that conclusion in the notes/documentation column of the species conclusions table. Add the habitat assessment to the project review package.
If you are uncertain whether the habitat types within the action area may support a listed species, answer “don't know” in the species summary table for the appropriate species under the column for Step 3A. In this instance, a habitat survey may be recommended. Please contact the Maine Field Office for technical assistance. Provide an explanation for your answer and describe any sources of information.
(B) Does the species occur in your action area?
If you can confirm that the species is absent within the action area, answer “species not present” in the species summary table for the appropriate species under the column for Step 3B. If you can confirm that a species is present within the action area, answer "species present” in the species summary table for the appropriate species under the column for Step 3B. Provide an explanation for your answer and describe any sources of information. If you have done a species survey, append this information to the project review package.
If you are uncertain whether the species is present within the action area, answer “don't know” in the species summary table for the appropriate species under the column for Step 3B. In this instance, a species survey may be recommended. Please consult the Maine Field Office for technical assistance.
When your species summary table is completed for all listed species, continue to Step 4.
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Step 4
Maine is the home of over 800 nesting pairs of bald eagles. Golden eagles nested in Maine until 1999, and they still occasionally occur during the breeding season. Golden eagles also regularly migrate through the State from their nesting areas in eastern Canada to wintering areas in the mid-Atlantic States. The bald eagle was removed from the Federal endangered species list in 2007 and from the Maine endangered species list in 2009. Both species are protected by the Federal Bald and Golden Eagle Protection Act (Eagle Act). The Eagle Act protects both bald and golden eagles from take and disturbance. Under some circumstances the Eagle Act may allow take of bald and golden eagles with a permit. The bald eagle nesting (breeding) season in Maine is from February 1 through August 15.
Follow the steps below to determine if your project may be in the vicinity of a bald eagle nest and if an Eagle Act permit may be necessary. At this time, we do not have site specific information related to golden eagle habitats in Maine. If you have questions about golden eagles, please contact the Maine Field Office.
To determine if your action area is within 660 feet of a bald eagle nest, use the Maine - Bald Eagle Nest Locations and Buffer Zones map (Note: accessing this online ArcGIS tool may take a few minutes). This tool provides the locations of the known active bald eagle nests in Maine. Important: Not all eagle nests have been mapped in this database. You may know of eagle nests near your project action area that are not mapped. If you know of eagle nest locations within 660 feet of your project action area, include them in your species summary table. In some instances, eagle nest surveys may need to be completed; however, all surveys must be coordinated well in advance with the Maine Field Office to avoid unnecessary disturbance to nesting bald eagles.
A. If your action area is not within 660 feet from a bald eagle nest, add "bald eagle" to the species column under Step 2 and add "will not disturb” nesting bald eagles to the column for Step 4 of the species summary table. Print the Maine Bald Eagle Map and add it to the project review package. Continue to Step 5.
B. If your action area is within 660 feet of a bald eagle nest, determine whether the proposed action may take or disturb the nesting eagles by following the steps in the Northeast Bald Eagle Project Screening Form. Provide the nest code (e.g., nest identifier BE214A) from the Maine Field Office's Bald Eagle Map Tool in the "Notes / Documentation" column of the species summary table.
- If you are able to implement the recommendations in the guidelines, add "bald eagle" to the species column and add "will not disturb" nesting bald eagles to the species summary table under the column for Step 4. Document the recommendations you adopted to avoid disturbance in the "Notes/Documentation" column of the species summary table. Provide supporting information or explanation as appropriate. Continue to Step 5.
- If you are unable to implement the recommendations in the guidelines, add "may disturb" nesting bald eagles to the species summary table under the column for Step 4. Provide an explanation of why the recommendations cannot be implemented in the "Notes/Documentation" column of the species summary table, and add this information to the project review package. Contact the Northeast Regional Eagle Coordinator (Shaughn Galloway, shaughn_galloway@fws.gov, 413-253-8577) for further guidance. Continue to Step 5.
- If you don't know whether your project may take or disturb eagles, add "don't know" to the species summary table under the column for Step 4. Contact the Northeast Regional Eagle Coordinator (Shaughn Galloway, shaughn_galloway@fws.gov, 413-253-8577) for further guidance. Continue to Step 5.
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Step 5
Congratulations your project evaluation is almost complete. By this point, your species summary table should be completed for columns 2, 3A, 3B, and 4. In this last step you will complete the project review process based on whether a) you are a Federal agency, b) your project will have a Federal nexus, or c) your project has no Federal nexus. To assist you further, we have provided two examples of completed species summary tables - example 1 and example 2.
(A) If you are a Federal agency that funds, permits, constructs or provides technical assistance to a project, you are responsible for making initial determinations under the ESA in coordination with the Fish and Wildlife Service. The Federal agency may use the table below as a guide to make initial determinations for federally listed species and critical habitat under section 7 of the ESA. This table should guide you in determining if your actions will have "no effect" or "may effect" listed species and their critical habitat. This process is not intended to provide guidance on determinations of "not likely to adversely affect" or "adversely affect" listed species or critical habitat. If your project species summary table results in a preliminary determination of "may affect" federally listed species, then you must consult with the Maine Field Office with your project review package.
Table 1. List of possible conclusions and resulting determination as it pertains to ESA section 7.| Possible Conclusions | ESA Determination/result |
|---|
| In the action area, the species is not present AND there is no suitable habitat present AND there is no critical habitat present | No Effect |
| Suitable habitat present, species not present | May affect |
| Species present | May affect |
| Critical habitat present | May affect |
| Candidate species present or their habitat present | Recommend coordination with the Maine Field Office to develop measures to avoid effects |
| Unlikely to take or disturb nesting bald eagles | No Eagle Act permit required |
| May take or disturb nestling bald eagles | Eagle Act permit may be required |
If the ESA section 7 determination for any species or critical habitat is "may affect" the Federal agency should submit a request to the Maine Field Office to initiate consultation. The project review package should include:
- Your name and contact information
- Project title used in IPaC
- A brief project description
- Your official species list from IPaC
- A map of your project location showing the general vicinity
- A map of your action area. For example, a project area outline on an aerial or topographic map.
- A map from the Maine Field Office's Bald Eagle Map Tool (if applicable)
- A completed species summary table. Explain and provide reasoning or documentation.
- Any additional information that supports the determination made in your species summary table.
- Photographs of your project action area and habitat descriptions are useful.
Additional coordination with the Fish and Wildlife Service will be needed to arrive at a final effects determination under the ESA and initiate informal or formal section 7 consultation if needed.
If you are a Federal agency and used this process to reach a determination of "no effect" then save a copy of your species summary table and maintain it in your project file. Federal agencies do not need concurrence from the Fish and Wildlife Service for a "no effect" determination. No further consultation is needed with the Maine Field Office. If you are unsure about making a "no effect" determination, please contact our office for assistance.
The project proponent (not the Federal action agency) is responsible for making the final determination for the Eagle Act. Please refer proponents who believe their projects may take or disturb bald or golden eagles to the Maine Field Office, as an Eagle Act permit may be required.
(B) If you are a consultant or individual WITH a project having Federal agency involvement (any action authorized, funded, or carried out), please provide a complete project review package to the appropriate Federal agency. The Federal agency then has a responsibility under the ESA to make a determination regarding effects to listed species and consult with the Maine Field Office as described above in (A) and Table 1.
(C) If you are a consultant or individual WITHOUT Federal agency involvement (any action authorized, funded, or carried out), project review with the Maine Field Office pursuant to section 7 of the ESA is not required but other provisions in the ESA still apply. For instance, no person is authorized to "take" (kill, injure, harm, harass, etc.) listed species without appropriate authorization from the Service. Therefore, we provide technical assistance to individuals and State or local agencies to assist with project planning to avoid the potential for "take," or when appropriate, to provide assistance with their application for a take permit pursuant to section 10 of the ESA. For more information on incidental take permits and associated Habitat Conservation Plans (HCPs), please review the Service'sHCP page for information such as:
Please contact the Maine Field office if you believe your project may take listed species or bald and golden eagles.
View our Maine Field Office ESA and Eagle Act Project Review Library Collection for Examples of Species Summary Tables and other documents associated with the project review process.
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Stream Crossing ESA Programmatic Consultation
Federal agencies in Maine have collaborated on a programmatic Endangered Species Act section 7 consultation and biological opinion in September 2017. This streamlined process is available for stream crossing projects that may affect Atlantic salmon or its designated critical habitat, that meet the program’s design and construction standards, and that involve at least one of the signatory Federal agencies. Visit our Stream Crossing Programmatic Page to view additional information and documents pertaining to this agreement.
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Documents
