Consultation Process

Consultations are conducted with the Federal agency (Action Agency) or their representative. The Action Agency identifies ESA-listed species and critical habitat within the proposed action area, identifies the potential stressors, and determines whether and how the project may affect these species and critical habitats. An Action Agency may designate a non-Federal representative to conduct an ESA section 7 informal consultation or prepare a biological assessment on their behalf (50 CFR § 402.08); however, the Action Agency remains responsible for the scope and content of the biological assessment and consultation request package as well as for compliance with ESA section 7. NOAA Fisheries can provide technical assistance that will aid in defining the action area, identifying ESA-listed species and critical habitat in that action area, identifying project stressors, and analyzing how project stressors impact the listed species and critical habitat.

To determine which type of consultation will be needed, the Action Agency first determines how their proposed action will impact each ESA-listed species and critical habitat within the action area. The action area is defined in the ESA regulations (50 CFR § 402.02) as the area within which all direct and indirect effects of the project will occur. The action area is distinct from and larger than the project footprint because some elements of the project may affect listed species some distance from the project footprint. The action area, therefore, extends out to a point where no measurable effects from the project are expected to occur. The effects include all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of indirect activities (e.g., increased vessel traffic) that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur “but for” the proposed action and if it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action.

NOAA Fisheries does not consult when a No Effect Determination has been made by the Action Agency. If a Federal action will not have any positive or negative effects upon any listed species or designated critical habitat, then a “no effect” determination is appropriate. The Action Agency should document why they made a “no effect” determination in their files, explaining why each project stressor (e.g., underwater sound, habitat alteration, vessel traffic) will not impact each listed species or designated critical habitat. 

It is not necessary to notify NOAA Fisheries or seek our concurrence with an action agency's no effect determination as we are not obligated to review it, concur with it, or otherwise provide comments on it. We can, however, provide technical assistance that will aid in making the appropriate effects determination for each project.  Should  “take” of a listed species or adverse modification (or destruction) of critical habitat occur as a result of a project for which the Action Agency has made a “no effect” determination, the Action Agency must immediately notify the NOAA Fisheries Alaska Region.

If the Action Agency determines that the Federal action may affect ESA-listed species or designated critical habitats, either informal or formal consultation is required under section 7(a)(2). The following provides a typical timeline for informal and formal consultation processes:

Note: NOAA Fisheries determines if a consultation request package is complete. The clock for completing consultation begins once NOAA Fisheries determines the consultation request package contains the information necessary to adequately evaluate the potential effects of the proposed action. NOAA Fisheries considers a request package to be withdrawn if we have not received a response from the Action Agency regarding a request for additional information within 45 days. Timelines for emergency consultations are different than for informal or formal consultations, due to the time sensitive nature of emergency actions. Learn more about the Emergency Section 7 Consultation process here.

 Learn more about the Emergency Section 7 Consultation process here. 

If the stressors associated with an action “may affect, but are not likely to adversely affect” listed species or critical habitat (also called an NLAA determination), then informal consultation is warranted. In arriving at a NLAA determination, the Action Agency must consider whether the effects of each project stressor (e.g., underwater sound, habitat alteration, vessel traffic) are expected to be insignificant (so small they cannot be meaningfully measured, detected, or evaluated), extremely unlikely to occur, or entirely beneficial. For example, if a project may cause a slight and very brief startle response in a small number of animals such that there are no implications on survival or fitness, then an informal consultation is appropriate. 

Submit requests for an informal consultation to akr.prd.section7@noaa.gov, containing the following information:

1. An adequate description of the proposed action, including appropriate mitigation measures.
2. An accurate description of the action area. The action area includes all areas affected directly or indirectly by the Federal action, and not merely the immediate area involved in the action (i.e., the action area as defined at 50 CFR § 402.02)
3. Identification of each ESA-listed species and designated critical habitat that may be affected by the action, including site-specific information on the presence of ESA-listed species in the project area.
4. A description of the effects of the action on ESA-listed species and designated critical habitat.
5. For each ESA-listed species and critical habitat, provide a determination of project effects. If the action agency determines that any part of their action is likely to directly or indirectly adversely affect listed species or critical habitat, a formal consultation is warranted.

If NOAA Fisheries agrees with the “not likely to adversely affect” (NLAA) determination, we will provide a Letter of Concurrence to the Action Agency within 60 days of initiation of consultation (initiation occurs when NOAA Fisheries determines we have received sufficient information to complete our analysis). 

Expedited Consultation Process 

If the action is routine, non-controversial, and poses minimal threats to ESA-listed species and critical habitat, it may qualify for an expedited informal consultation, which typically results in a much more rapid response from NOAA Fisheries. This process does not cut corners in the consultation process. Rather, it allows Action Agencies to do much of the required analysis themselves regarding project effects, enabling NOAA Fisheries to respond faster with a Letter of Concurrence. The Action Agency must provide a very thorough and complete consultation request package.

Template letter for requesting informal ESA Section 7 consultation

Example of an adequate informal expedited ESA section 7 consultation request letter that qualified for expedited consultation (PDF, 6 pages)

FAQ & Checklist for Informal & Expedited ESA Section 7 Consultations (PDF, 4 pages)

Learn more about developing a successful ESA section 7 consultation request package

If any stressors associated with an action are likely to adversely affect any listed species or critical habitat, then formal consultation is required. The Action Agency should prepare a Biological Assessment and submit a request for formal consultation to akr.prd.section7@noaa.gov. Once NOAA Fisheries determines that the request for formal consultation is complete and sufficient, we will issue a Biological Opinion and Incidental Take Statement within 135 days. The terms of the Incidental Take Statement become effective upon issuance of any required MMPA permit for that project. Adequate requests for formal consultation must contain the information specified in 50 CFR 402.14(c) and (d); which includes:

1. A description of the proposed action, including any measures intended to avoid, minimize, or offset effects of the action. Consistent with the nature and scope of the proposed action, the description shall provide sufficient detail to assess the effects of the action on listed species and critical habitat, including:
   • The purpose of the action;
   • The duration and timing of the action;
   • The location of the action;
   • The specific components of the action and how they will be carried out;
   • Maps, drawings, blueprints, or similar schematics of the action; and
   • Any other available information related to the nature and scope of the proposed action relevant to its effects on listed species or designated critical habitat.
2. A map or description of the action area which includes all areas to be affected directly or indirectly by the Federal action, and not merely the immediate area involved in the action (i.e., the action area as defined at 50 CFR § 402.02).
3. Information obtained by or in the possession of the Federal agency and any applicant on the listed species and designated critical habitat in the action area, including available information such as the presence, abundance, density, or periodic occurrence of listed species and the condition and location of the species’ habitat, including any critical habitat.
4. A description of the effects of the action and an analysis of project effects and any cumulative effects.
5. Any other relevant available information on the effects of the proposed action on listed species or designated critical habitat, including any relevant reports such as environmental impact statements and environmental assessments.

The request for formal consultation should be submitted to NOAA Fisheries with a letter making a “likely to adversely affect” determination on one or more ESA-listed-species. Contents of the Biological Assessment associated with the action should follow 50 CFR § 402.12. 

Examples of Biological Opinions issued in Alaska

Example Outline of a Biological Assessment (PDF, 2 pages)

Learn more about developing a successful consultation request package

Regulations implementing the ESA consider an emergency to be situations involving acts of God, disasters, casualties, national defense or security emergencies, etc. (50 C.F.R. § 402.05), and includes response activities that must be taken to prevent imminent loss of human life or property. Predictable events, exigencies, and tight timelines are usually not emergencies. 

During any emergency and emergency response, NOAA Fisheries' primary objective is to provide technical advice and recommendations for minimizing adverse effects to listed species and critical habitat. The primary objective of the responding agency (i.e., Action Agency) may be to protect human life and property, and this objective takes precedence when it conflicts with protective measures for listed species. 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.

During any emergency response, the Federal agency will contact NOAA Fisheries as quickly as possible following the onset of the emergency.

During this initial contact, NOAA Fisheries will recommend actions that may be implemented to minimize the impacts to any listed species or critical habitat in the area.  At the same time, NOAA Fisheries will provide the agency, within 48 hours, a written response detailing the protective procedures that were identified during the initial contact.  

Once the emergency is under control, the Action Agency will evaluate the emergency consultation measures, identify any incidental take of ESA-listed species or critical habitat, and initiate a post emergency consultation with NOAA Fisheries. The Action Agency must submit to NOAA Fisheries information on the nature of the emergency action(s), the justification for the emergency consultation, and the impacts to listed species and their habitats.

NOAA Fisheries 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.  If no take occurred and all effects were insignificant, extremely unlikely to occur, or entirely beneficial,  NOAA Fisheries will prepare a letter of concurrence.

A programmatic consultation is a consultation addressing an Action Agency’s multiple actions on a program, region, or other basis. Programmatic consultations allow NOAA Fisheries to consult on the effects of programmatic actions such as: (1) multiple similar, frequently occurring, or routine actions expected to be implemented in particular geographic areas; and (2) a proposed program, plan, policy, or regulation providing a framework for future proposed actions.

A programmatic ESA section 7 consultation can achieve several objectives with positive administrative benefits for both the Action and Consulting agencies.  A programmatic approach streamlines the procedures and time involved in consultations for broad agency programs or multiple similar, frequently occurring, or routine actions 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 with a set of applicable stressors is completed up front in the biological assessment and programmatic Letter of Concurrence or Biological Opinion. Later, during the project-specific consultation stages, a proposed activity is reviewed to determine if it can be implemented in accordance with the Project Design Criteria (PDC), standard operating procedures, best management practices, or other standards regarding activity effects and stressors identified in the programmatic Letter of Concurrence or Biological Opinion. Programmatic consultation may also be appropriate to provide a generalized review of the effects that flow from a policy, plan, or program; later during the project-specific consultation stage, there will be enough specificity on the number, location, timing, frequency, and methods and intensity of agency actions under the governing policy, plan, or program to conduct specific tiered consultations.

The following elements should be included in a programmatic consultation to ensure its consistency with ESA section 7 and its implementing regulations.

• A description of the ESA-listed species and critical habitat that may be affected (402.14(c)(3));
• The type and scope of actions or activities to be included in or governed by the proposed action at the relevant spatial and temporal scale(s) (402.14(c)(l)-(2));
• Any relevant project design criteria, best management practices, and/or or standard operating procedures included with the proposed action to avoid/minimize effects to ESA-listed species and critical habitat (402.14(c)(1));
• The decision-making process the Federal action agency will use to approve subsequent specific actions or activities, as appropriate for the type of programmatic consultation being prepared, including processes to ensure compliance with applicable measures, requirements to monitor the effects of subsequent actions/activities, and requirements to employ adaptive management using such information (402.14(c)(1));
• The estimated direct, indirect, and combined effects to or loss of ESA-listed species and critical habitat (402.14(c)(4));
• Other relevant available information on the action or the affected ESA-listed species and critical habitat (402.14(c)(5)-(6)); and
• An analysis of any cumulative effects (402.14(c)(4)).

When NOAA Fisheries proposes to list species or designate critical habitat under the ESA, provisions of the Act that require a “conference” with NOAA Fisheries may apply (16 U.S.C  § 1536(a)(4)). The conference is designed to assist the Action Agency and any applicant in identifying and resolving potential conflicts at an early stage in the planning process. A conference approach ensures the Action Agency complies with its obligations under ESA section 7(a)(2) and if the species is listed under the ESA, early conferencing can provide incidental take coverage, if needed.  Conferencing can avoid the need to reinitiate later if the listing or critical habitat rule is finalized. 

If the effects of the action occur within an area where critical habitat is proposed, or where proposed species may occur, the Action Agency must determine if the proposed action is likely to jeopardize the continued existence of the proposed species and/or if the proposed action is likely to destroy or adversely modify the proposed critical habitat. If the project is not likely to jeopardize the continued existence of the proposed listed species and/or is not likely to destroy or adversely modify proposed critical habitat, conference is not necessary. The Action Agency may still decide to conference in advance of the final listing or critical habitat rule since conferencing can avoid the need to reinitiate later if the listing or critical habitat rule is finalized.

If the project is likely to jeopardize the continued existence of a proposed listed species and/or destroy and adversely modify proposed critical habitat, the Action agency must prepare an assessment of the effects of the activity on the proposed critical habitat (similar to or included in the biological assessment) and submit that along with a request for conference.