ESA - What Are Consultations?
There are informal and formal consultations. An informal consultation:
 | Clarifies what listed, proposed, or candidate species or designated or proposed critical
habitats may be in the action area |
| Determines what effect an action may have on species or critical habitat |
| Explores ways to mitigate the action to reduce or eliminate effects to the species or
critical habitats |
| Determines the need to enter a formal consultation for listed species or designated
critical habitats, or conference for proposed species or proposed critical habitats |
| Explores the design or modification of an action to benefit the species |
While there is no timetable for informal consultations, an informal consultation
generally takes 300 days. However, dialogue can continue as long as both parties are
willing to participate.
The regulations mandate a formal consultation when an agency determines a proposed
action “may affect” listed species or designated critical habitat. The formal
consultation:
| Determines whether a proposed agency action(s) is likely to jeopardize the continued
existence of any endangered or threatened species; or result in the destruction or adverse
modification of an endangered or threatened species’ critical habitat |
| Determines the amount or extent of anticipated incidental take |
| Identifies the nature and extent of the effects an action may have on species or
critical habitat |
| Identifies reasonable and prudent alternatives, if any, if an action is likely to result
in jeopardy or adverse modification; provides exception for specific levels of incidental
take |
| Identifies reasonable and prudent measures to minimize impacts of incidental take |
| Identifies ways action agencies can help conserve listed species or critical habitat |
| Provides an administrative record of effects on a species that can help establish the
species’ environmental baseline for future biological opinions |
A consultation generally takes 165 days from the time an agency request initiation of a
formal consultation. MMS may consult with NMFS and the FWS on a national level or on
a regional level.
A national level consultation involves a specific action or a series
of specific actions affecting many species over all or a major portion of the country.
National consultations are signed in the NMFS and FWS Washington Offices.
Examples of national level consultations are the Cental and Western Gulf of Mexico Region
Multi Lease Sale consultations.
A regional level consultation involves a single specific action, or a
number of similar actions within the same geographic area and are signed by the
appropriate NMFS and FWS Regional offices. An example of a regional level
consultation is the proposed Northstar (Alaskan Beaufort Sea) development and production.
What is a Biological Assessment?
Regulations mandate that agencies prepare a biological assessment for
any “major construction activity” considered to be a Federal action
significantly affecting the quality of the human environment as defined in the National
Environmental Policy Act and the Council on Environmental Quality regulations. An
agency has 180 calendar days after receiving a species list from the resource agency to
complete and submit to NMFS or FWS a biological assessment.
The contents of a biological assessment are at the discretion of the action agency.
However the regulations recommend that a biological assessment include:
| Listed and proposed species that occur within the action area |
| Views of recognized experts on the species at issue |
| Review of the literature |
| Analysis of the effects of the proposed action on the species and habitat including
cumulative effects |
| Analysis of alternate actions |
What is a Biological Opinion (BO)?
NMFS and FWS will review the agency proposed action or actions and present an opinion
whether the proposed action is not likely to adversely affect; not likely to
jeopardize but adversely affect; or likely to jeopardize the continued existence of the
species or result in destruction or adverse modification of critical habitat.
The biological opinion will contain a description of the proposed action, status of the
species, an environmental baseline, effects of the action, cumulative effects, reasonable
and prudent alternatives (as appropriate), and an incidental take statement.
As a matter of policy, the NMFS and FWS require all consultations (except those
involving only plants) to have an Incidental Take Statement that
specifies the amount and extent of unintentional take (to harm or harass) that
will not jeopardize the continued existence of a listed species. The Incidental Take
Statement will also include any reasonable and prudent measures along
with the terms and conditions to implement the measures that NMFS and FWS
consider necessary to minimize impact to listed species. The reasonable and prudent
measures and the terms and conditions are nondiscretionary. The NMFS and FWS may
also provide discretionary conservation recommendations.
What is a Reinitiated Consultation?
An agency must reinitiate consultation under one or more of the following conditions:
- The amount or extent of incidental take is exceeded
- New information reveals effects of the action may affect species or habitat in a manner
or extent not previously considered
- The identified action is modified and that causes an effect not considered in the BO
- There is a new species listing or critical habitat designation.
For more information, contact Judy Wilson.
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