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Working Together to Protect Endangered Species

To preserve and protect species that are threatened or endangered, federal agencies are required to work together under section 7 of the Endangered Species Act (ESA). Titled “Interagency Cooperation,” section 7 is an important part of the ESA as it ensures that the actions authorized, funded, or carried out by federal agencies do not jeopardize the continued existence of any listed species. This also applies to the habitat of listed species to make sure that actions do not impact areas where they live and spawn. Under the ESA, species are listed as endangered or threatened according to a process that examines their population status as well as five factors that may affect their continued survival (see section 4 of the ESA for a description of the five ESA factors for listing).

Section 7 requires consultation between the federal “action agency” (the agency authorizing, funding, or undertaking an action) and the appropriate “expert agency.” In the case of marine and several anadromous species, such as sturgeon and Atlantic salmon, NOAA Fisheries is the consulting agency while the U.S. Fish and Wildlife Service conducts consultations for terrestrial and freshwater species.

Getting Recommendations Early On Is Key

The section 7 team at the Greater Atlantic Regional Fisheries Office (GARFO) works on a variety of projects including dredging of navigation channels, offshore wind projects, and fisheries management plans. We consult with other federal agencies to ensure that their activities are in compliance with section 7 of the ESA. In some cases, a federal agency (or a state, private party, or consultant) may seek technical assistance in the early planning stages of a project. This is the best time for us to provide information on species life history, best management practices, and measures to reduce the extent of potential effects. The federal action agency can then include our recommendations in their project proposal before initiating the consultation process with us. During the technical assistance phase, a federal agency may determine that there is no effect of the activity on listed species (i.e., there are no listed species present during the activity and no effects to habitat). In this case, there is no need for further ESA section 7 consultation

Section 7 Fishery Biologist Dan Marrone (left) Inspects the underside of the hopper draghead where the UXO screen is installed.

In situations where an activity may affect a listed species, the action agency needs to begin the consultation process. First, the action agency makes one of two determinations: the activity is “not likely to adversely affect” listed species or the activity is “likely to adversely affect” listed species. Activities are “not likely to adversely affect” species if all effects are “insignificant” (so small that they cannot be detected) or “discountable” (extremely unlikely to occur). If the action agency makes this determination, we review their analysis, and if we agree with their finding, we respond with a letter of concurrence. This is the “informal” consultation process.

Streamlining the Consultation Process

In fiscal year2015, we received nearly 1,500 requests for informal consultations nationwide, and have experienced significant growth in the number of requests over the last few years. Considering the growing economy, new ESA-listed species and critical habitat designations, and anticipated consultation requests for future large scale projects, we are pursuing new ideas and strategies to make our section 7 program more efficient. Recently, we announced a new expedited consultation program with the goal of greatly reducing time spent in developing informal section 7 letters of concurrence in response to action agency requests. The program will cover a significant subset of action agency action requests that are routine, non-controversial, and not likely to adversely affect listed species.

Other projects may be “likely to adversely affect” listed species, and if the action agency makes this determination, a formal consultation is initiated which concludes with a Biological Opinion that includes an Incidental Take Statement (ITS). The Biological Opinion authorizes the “take” of listed species provided the take does not negatively affect the continued existence of the species (e.g., does not jeopardize the continued existence of the species). “Take” is defined as to harass, harm, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in such conduct, and is prohibited under the ESA.

If during the formal consultation process an activity is found to have the potential to jeopardize the continued existence of the species or adversely modify critical habitat, a Reasonable and Prudent Alternative (RPA) must be incorporated into the Biological Opinion. The RPA is a mechanism to remove a jeopardy or adverse modification finding, and must be followed so that the project can proceed.

Working in Teams

GARFO’s section 7 fishery biologists are divided into regional teams: New England, Greater New York Bight (New York, New Jersey, Delaware and Philadelphia), and Chesapeake Bay (Maryland and Virginia). Some of our biologists have areas of expertise in certain types of actions (e.g., offshore energy, fisheries). The regional teams largely follow the U.S. Army Corps of Engineers (USACOE) districts, as consultation requests from USACOE constitute the vast majority of our workload.

For example, Dan Marrone is the point of contact for the Greater New York Bight regional team and works closely with USACOE’s New York District, which includes all of New York and part of New Jersey. Many of Dan’s projects involve dredging work to maintain channel depths or to collect sand for beach nourishment, especially following natural disasters like Hurricane Sandy. Dan visited the New York District earlier this year to increase his knowledge of hopper dredges and unexploded ordnance (UXO) screens. UXO screens are designed to prevent objects larger than small rocks (e.g., old mines, shells) from entering the dredge where they could cause damage. As an unintended consequence, UXO screens also prevent listed species (i.e., sturgeon and sea turtles) from entering the dredge, which makes it difficult for species observers to document when interactions have occurred. We are currently working with the USACOE to investigate ways to improve monitoring of listed species interactions with hopper dredges outfitted with UXO screens.

GARFO’s section 7 team also recently sent fishery biologists to observe construction of the Block Island wind farm in Rhode Island. This project marks the emergence of a new industry in the United States, so it is helpful for fishery biologists assessing construction impacts to have first-hand knowledge of how wind turbine installation works in practice. For example, contractors installing piles for the turbine jacket structure use a “soft start” to give marine mammals, sturgeon, and sea turtles a chance to leave the area before underwater noise reaches peak pressure levels. This best management practice is an example of an action agency altering construction techniques to minimize the potential risk/exposure of listed species to adverse impacts.

Collaboration Benefits Everyone

Section 7 is a collaborative process from start to finish. Through knowledge sharing and proactive communication, we can work together with action agencies to streamline efforts and significantly shorten the time spent producing consultation documents. Gaining efficiency in section 7 benefits ESA-listed species, as our fishery biologists have more time and resources to focus on species’ recovery. Efficient section 7 consultations also benefit action agencies and their project applicants, as action agencies can process permits more quickly, getting projects underway in a more timely manner.

Section 7 Fishery Biologist Zach Jylkka in front of a “jack-up barge” while waiting to observe pile installation.

Read more about the section 7 process and the listed species in our region.