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Types of Consultations

- Informal Consultation

- Programmatic Consultation

- Formal Consultation

- Emergency Consultation

- How to Reinitiate Consultation

- No Effect Determination


Informal Consultation

Under section 7 federal agencies must consult with NOAA Fisheries when any action the agency carries out, funds, or authorizes may affect either a species listed as threatened or endangered under the Endangered Species Act (ESA), or any critical habitat designated for it. If the agency taking the action (referred to as the “action agency” under section 7) concludes that the project is not likely to adversely affect (NLAA) listed species and/or critical habitat, they submit an informal consultation request to NOAA Fisheries (referred to as the “Consulting Agency under section 7) for concurrence. An NLAA determination is the appropriate conclusion to be made when effects on ESA listed species and/or critical habitat are expected to be discountable (extremely unlikely to occur), insignificant (so small they cannot be meaningfully measured, detected or evaluated), or wholly beneficial (ALL effects benefit the species and/or critical habitat).

Examples of successful informal consultations are located here.

Programmatic Consultation

Programmatic section 7 consultation can achieve several objectives with positive administrative benefits for both Action and Consulting agencies.  A programmatic approach streamlines the procedures and time involved in consultations for broad agency programs or numerous similar activities with predictable effects on listed species and/or critical habitat, thus reducing the amount of time spent on individual project-by-project consultations. Although this process may initially take time to gather data for all the activity types that may be included under the programmatic program, the end result is that workloads are streamlined and significantly reduced in the long run.

Programmatic consultations allow for streamlined project-specific review because the effects analysis, for a suite of activities exposed to a set of applicable stressors, is completed up front in the biological assessment (BA) and programmatic consultation response document. At the project-specific consultation stage, a proposed activity is reviewed to determine if it can be implemented in accordance with the Project Design Criteria (PDC), or other standards regarding activity effects and stressors, identified in the programmatic consultation. Consistent with the joint Services’ 2002 memo the following elements should be included in a programmatic consultation to ensure its consistency with ESA section 7 and its implementing regulations.

  1. PDC to prevent or limit future adverse effects on listed species and critical habitat;
  2. Description of the manner in which projects to be implemented under the programmatic consultation may affect listed species and critical habitat and evaluation of expected level of effects from covered projects;
  3. Process for evaluating expected projects and their effects as well as tracking of actual aggregate or additive effects of all projects expected to be implemented under the program. The programmatic consultation document must demonstrate that when the PDC or standards are applied to each project, the aggregate effect of all projects are not likely to adversely affect listed species and their critical habitat;
  4. Procedures for streamlined project-specific consultation. As discussed above, if an approved programmatic consultation document is sufficiently detailed, project-specific consultations ideally will consist of findings made by action agency biologists and consulting agency biologists, respectively. An action agency will provide a description of a proposed project, or batched projects, and an assurance that the project(s) will be implemented in accordance with the criteria or standards. The consulting agency reviews the submission and either concurs with the action agency, or identifies adjustments to the project(s) necessary to make it (them) consistent with the programmatic consultation document;
  5. Procedures for monitoring projects, reporting requirements, and validating effects predictions; and,
  6. Comprehensive review of the program, generally conducted annually.

Formal Consultation

If consultation cannot be concluded informally because adverse effects to listed species are expected, the action agency must request formal consultation. To initiate formal consultation, the action agency must provide information specified in 50 CFR 402.14(c) and (d); this includes: description of the action to be considered; a description of the specific area that may be affected by the action; a description of any listed species or critical habitat that may be affected by the action; a description of the manner in which the action may affect any listed species or critical habitat and an analysis of any cumulative effects; relevant reports, including any environmental impact statement, environmental assessment, or biological assessment prepared; and any other relevant available information on the action, the affected listed species, or critical habitat, using the best scientific and commercial data available; and submit it to us along with a letter making a “likely to adversely affect” determination, that requests formal consultation. Your consultation request will be assigned to a section 7 biologist and the assigned biologist will review your request for consultation and contact you by phone or email if more information is needed. Once all the necessary information is received, we will send you a letter stating that we have all the information necessary to initiate formal consultation. The biologist will then draft a Biological Opinion, including an Incidental Take Statement (ITS) (as appropriate). The ESA section 7 regulations require us to provide a final Biological Opinion to you within 135 days of consultation initiation. The date of initiation is calculated from when we receive ALL the necessary information to complete formal consultation (e.g., all project specifics included, action area correctly defined, all stressors have been adequately addressed, all effects analyzed, etc.) . This timeline can be extended if both agencies agree more time is needed. If a third party is proposing the action as an applicant, the third party must also agree to an extension. Please note that special procedures are required for “major construction” projects, including the preparation of a Biological Assessment (BA)(see 50 CFR 402.12, or contact us for more information).

Examples of current Biological Opinions can be found here

Additional guidance can be found here

Emergency Consultation

The Endangered Species Act (ESA) recognizes the need to respond immediately to emergencies.  Consultation during emergencies is expedited so Federal agencies can complete their critical missions in a timely manner while still providing protections to listed species and critical habitat.  Where emergency actions are required that may affect listed species and/or their critical habitats, a Federal agency may not have the time for the administrative work required by normal consultation procedures under non-emergency conditions.  Emergency consultation expedites communication and allows agencies to incorporate endangered species concerns into their emergency response.

 An emergency is a situation involving an act of God, disasters, casualties, national defense or security emergencies, etc., and includes response activities that must be taken to prevent imminent loss of human life or property.  Predictable events, like those covered in Emergency Use Permits issued by the Environmental Protection Agency for pesticide applications, usually do not qualify as emergencies under the Section 7 regulations unless there is a significant unexpected human health risk.  During any emergency, NMFS’ primary objective is to provide technical assistance and recommendations for minimizing adverse effects to listed species during the emergency response activities.  During emergency events, the primary objective of the responding agency must be to protect human life and property and this objective takes precedence if there is a conflict with protective measures for listed species under the ESA.  The protection of ESA-listed species and designated critical habitat is warranted when it will not interfere with the emergency response to protect human life and property.

STEP 1 - Initiating Contact

During any emergency response, the Federal action agency will contact NMFS by email or telephone as quickly as possible following the onset of the emergency.  For Emergency Endangered Species Act Consultations please contact us immediately at nmfs.gar.hazmat@noaa.gov or call the main Protected Resources Division phone number at 978-281-9328.

STEP 2 - NMFS Recommendations

During this initial contact, NMFS will recommend steps to avoid or minimize the impacts to any listed species or critical habitat in the area during the emergency response.  The Federal action agency should implement these protective mechanisms if practical.  NMFS will also provide the agency, within 48 hours, a written response detailing the protective procedures that were identified during the initial contact.

 STEP 3 - NMFS Evaluation

NMFS will continue to evaluate the emergency.  If this evaluation indicates that the emergency response procedures may result in jeopardy/adverse modification, and no means of reducing or avoiding this impact are available, NMFS will advise the responding agency of this and document this conclusion.  The action agency will not stop or delay their emergency response because of this notification.  In such a situation, the Federal action agency and NMFS will discuss actions to remediate the effects following conclusion of the emergency.

STEP 4 - Emergency Over

Once the emergency is under control, the Federal action agency will evaluate the emergency consultation measures, identify any adverse effects to a species or critical habitat, and initiate a post emergency consultation with NMFS.

STEP 5 - Consultation Completed

NMFS will prepare an after-the-fact biological opinion to cover any incidental take that occurred during the emergency response and document the final impacts to the ESA-listed species and critical habitat.  If no take occurred, the action agency should notify NMFS to discuss if further consultation is required.

How to Reinitiate Consultation

Some times after completion of consultation, the project changes, a new species is listed, or critical habitat is designated or revised while the project is ongoing. Other times, take occurs when not exempted, or other relevant new information becomes available (e.g. new research on geographic extent of a species range).  Each of these scenarios may result in the need to revise the effects analysis in the Biological Opinion or in an informal consultation letter.  Reinitiation by the action agency is required when it retains discretionary involvement or control over the action (or when such involvement or control is authorized by law), and when one or more criteria have been met. Every consultation document contains a paragraph listing the triggers for reinitiation. These are:

  1. The amount or extent of taking specified in the incidental take statement is exceeded;
  2. New information reveals effects of the action that may not have been previously considered;
  3.  The identified action is subsequently modified in a manner that causes an effect to listed species; or
  4. A new species is listed or critical habitat designated that may be affected by the identified action.

Trigger A typically only applies to formal consultations that include an Incidental Take Statement (ITS) within a Biological Opinion. But, if take resulted from an action where it was not exempted and included under an ITS, reinitiation is required immediately. If a project changes, the action agency staff member should contact the section 7 biologist who wrote the consultation letter and/or Biological Opinion. Staff should discuss the changes and the potential need for reinitiation before submitting a request for reinitiation. Reinitiation is not always required if the project changes; the changes need to result in the level and/or type of effects to rise beyond the level and/or type of effects that have previously been considered in the consultation. If reinitiation is necessary, the action agency must send us a letter (following the guidelines for requesting consultation) requesting reinitiation of consultation. The request should contain an assessment of the effects of the modified action on listed species and/or critical habitat.  If the new determination is that the modified action is “not likely to adversely affect” listed species or critical habitat, an analysis must be provided to support the determination and submitted with a request for our concurrence.  If we concur, we will send back a letter which will complete re-initiated consultation.  However, if the modified action is likely to adversely affect listed species and/or critical habitat, then formal consultation is required, and a Biological Opinion will need to be produced (please see Formal Consultations for more information).

Additional guidance can be found here

No Effect Determination

No effect means there will be no direct or indirect effects to listed species or critical habitat from the proposed action, including from any activities that are interrelated to, or interdependent with, the proposed action. These terms are defined in our section 7 regulations at 50 CFR §402.02 and in other guidance on our website.  Some examples of when a “no effect” determination is appropriate are:

  1. No listed species or critical habitat occur anywhere, or at any time, in the action area (i.e., not just within the immediate project footprint but also all areas to be directly or indirectly affected by the action).
  2.  The listed species occur in the action area seasonally, but the action will be timed to avoid the presence of listed species and there will be no effect to those species or their critical habitat once they return to the area (e.g., an activity will not have an effect on the forage base or spawning habitat of a species so that species may use the areas when they return to the area).
  3. The listed species occur in the action area and may be present at the time of the project, but there are no plausible routes of effects to the species. Critical habitat is also in the action area, but there are no plausible routes of effects to critical habitat.

 

What happens when an action agency makes a “no effect” determination? If an action agency determines that the action has no effect, no section 7 consultation is required. Action agencies should document the “no effect” determination in their files in order to explain why section 7 consultation is not necessary.   The action agency is not required to notify us or seek our concurrence with a no effect determination as we are not obligated to review it, concur with it, or otherwise provide comments on it.  We focus our limited resources on actions that do require section 7 consultation. In order for an action agency to determine if any activities will have “no effect” on listed species and critical habitat in the action area, the determination must be able to be made for ALL species and critical habitat in the action area.

Additional guidance on how to make a "no effect" determination can be found here.