Endangered Species Act Federal Project Review - Understanding Species Effect Determinations

An effect determination is the conclusion of the biological assessment and indicates the overall effect of the proposed activity to listed species or critical habitat.

• The determination of effect must be supported by the information in the biological evaluation/assessment.
• The analysis should lead the reviewer through a logical, biological rationale leading to a well-supported conclusion. Connect the dots.
• The determination of effect is made by the federal action agency. A recommended determination may be presented to the federal action agency by the non-federal representative.
• The Service may ask the federal action agency to revisit its determination or provide more data if the conclusion is not adequately supported.

The federal action agency may make one of the following determinations for each listed species:

• "No effect" means there will be no impacts, positive or negative, to listed or proposed resources. Generally, this means no listed resources will be exposed to action and its environmental consequences. Concurrence from the Service is not required.
• "May affect, but not likely to adversely affect" means that all effects are beneficial, insignificant, or discountable. Beneficial effects have contemporaneous positive effects without any adverse effects to the species or habitat. 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.
• “May affect, likely to adversely affect” means that listed resources are likely to be exposed to the action or its environmental consequences and will respond in a negative manner to the exposure. The Endangered Species Act (ESA) requires the federal action agency request initiation of formal consultation with the Service when this determination is made. A written request for formal consultation should accompany the biological assessment/biological evaluation.

Examples of inappropriate arguments or justifications for effects determinations:

• Project is net positive. A combination of beneficial and adverse effects is still “likely to adversely affect” even if the net effect is neutral or positive.
• Displacement. The argument that removal of habitat or disturbance of individuals results in a “not likely to adversely affect” or a “no effect” determination because individuals can go elsewhere. Animals that must move, or “go elsewhere” during critical life stages can be stressed to the point of harm or harassment. Also, other suitable habitats may already be occupied by other individuals of that species.
• Not known to occur here. Unless adequate surveys have been conducted or adequate information sources have been referenced, this statement begs the questions “Have you looked?” and "How have you looked?”. If suitable habitat is present, and you have not conducted adequate surveys (using accepted protocols), then you must assume the species is present for your analysis.
• We’ll deal with it later or, if the Service will concur with a “no effect” or a “not likely to adversely affect” determination now, the federal agency will promise to coordinate if listed species are located and do whatever the Service wants to protect them later. This is not consistent with ESA regulations and consultation procedures, section 7 consultation must be complete before an action is permitted, authorized, or funded. If a listed species is found at a project site where no consultation has previously occurred, all work would have to cease until consultation could be complete, which can result in costly delays. During project planning, federal agencies should include adequate time to conduct surveys, gather information, complete analyses, and conduct interagency consultation.