Section 7 Consultation Guidance

How to develop ESA section 7 consultation requests

How to Determine Effects of the Action

In order to carry out an ESA Section 7 consultation for a proposed action, Federal action agencies must make one of the following preliminary determinations with respect to threatened or endangered species: no effect; may affect, but not likely to adversely affect; or may affect, and is likely to adversely affect.

  • No effect” means ESA-listed species or critical habitat, will not be affected, directly or indirectly.  Generally, this means no ESA-listed species or critical habitat will be exposed to beneficial or potentially harmful elements of the action.  National Marine Fisheries Service (NMFS) does not provide concurrence on a Federal action agencies’ no effect determination (PDF, 3 pages).
  • May affect, but not likely to adversely affect” means that all effects are beneficial, insignificant, or extremely unlikely to occur.  Action agencies must request and receive written concurrence from NMFS on anot likely to adversely affect” conclusion.  More information on these determinations can be found in the guidance within our Section 7 Expedited Consultation Template. 
  • "May affect, and is likely to adversely affect" means that ESA-listed species or critical habitats are likely to be exposed to the action or its environmental consequences and are likely to experience negative responses to the exposureIf you conclude that a listed species or its critical habitat is likely to be adversely affected, formal consultation will be required.  As with the other determinations, a detailed explanation of the expected route of effect is needed in your consultation request documentation.  NMFS issues a biological opinion at the conclusion of formal consultation.  If we conclude in the opinion that the project is not likely to jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat, we will include terms and conditions to minimize and monitor impacts to listed species.  If we conclude in the opinion that the project is likely to jeopardize the continued existence of any listed species or destroy or adversely modify critical habitat, the project may not go forward unless we provide areasonable and prudent alternative” that would avoid jeopardy and destruction or adverse modification.

How to Determine the Action Area

The action area is defined as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action” (50 CFR § 402.02). 

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The simplified depiction above illustrates how various project effects can expand the action area well beyond the immediate project area. This area will experience measurable or detectable changes that result from the full scope of the proposed action. 

To determine the action area, we recommend that you first break the action down into its components (e.g., vegetation clearing, construction actions (e.g., placement of cofferdams, pipelines, intake structures, dredging, dredge spoil storage areas, borrow areas, operations, maintenance, pile driving).  Determine the stressors that are expected to result from each project component.  For example, sound levels from machinery or pile driving may be detectable hundreds of feet, thousands of feet, or even miles away.  Use these distances when delineating the extent of your action area.

In addition to direct project effects, you must consider the consequences of other activities that are caused by your proposed action.  A consequence is considered to be caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur.  The activity does not need to be under your agency’s legal control or jurisdiction – if it produces consequences for listed species or critical habitat, it must be included in the effects of the action.   Effects of the action may occur later in time and outside the immediate area involved in the action (e.g., fishing activities off a fishing pier, vessel operations for a new or expanded marina or port, or changes in water quality/quantity from construction of a water control structure).

How to Identify Species or Critical Habitat are Found in the Action Area

Please review the list of Species and Critical Habitat found in the Southeast Region.  After identifying which ESA-listed species or critical habitat may be present in or near the Action Area, determine how they may be affected by the project.  The following Section 7 Consultation Species and Critical Habitat Frameworks were developed by Southeast Regional Office (SERO) to aid in the consultation process. 

How to Calculate Acoustic Impacts for Effects Analysis 

NMFS calculation tools and technical guidance documents are available for calculating acoustic impacts to ESA-listed fish, sea turtles, and marine mammals.  They are intended to be used by NMFS analysts and managers, other federal agencies, and other relevant user groups/stakeholders to better predict how a protected species may be affected will respond to sound exposure.

SERO developed a Pile Drive Noise Calculator spreadsheet as an in-house tool for assessing the potential effects to ESA-listed fish and sea turtles exposed to elevated levels of underwater sound produced during pile driving.  Please read the first tab titled “Read this first” completely before using the calculator to estimate potential noise effects.

NOAA's Technical Guidance document for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing provides thresholds for onset of permanent threshold shift (PTS) and temporary threshold shifts in marine mammal hearing for all underwater sound sources.  NOAA Fisheries marine mammal User Spreadsheet Tool provides a means to estimates distances associated with the Technical Guidance PTS onset thresholds.

Additional background information on noise analyses and some example scenarios can be found in SAJ-82 or JAXBO (noise analysis starts on page 32 and page 308 respectively). Analyses from these documents can be used in your expedited consultation if your project details are sufficiently similar to any of the scenarios in these documents.

 

 

Last updated by on July 24, 2020