March 14, 2016 — The following was released by NOAA Fisheries:
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 Recommedations 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.
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.