Developing a Section 7 Request Letter for Expedited Informal Consultation in Alaska

Section 7(a)(2) of the Endangered Species Act (ESA) requires each Federal agency to ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species (16 U.S.C. 1536(a)(2)).

When a Federal agency's action may affect a listed resource, that agency is required to consult with NOAA Fisheries or the U.S. Fish and Wildlife Service (USFWS), depending upon the endangered species, threatened species, or designated critical habitat that may be affected by the action (50 CFR 402.14(a)). If the action agency concludes that the project is not likely to adversely affect (NLAA) listed species and critical habitat, it submits a request for informal consultation to NOAA Fisheries (or USFWS, depending on the species affected) for concurrence. A NLAA determination is the appropriate conclusion to be made when effects on ESA listed species and critical habitat are expected to be discountable (extremely unlikely to occur), insignificant (too small to detect or measure), or wholly beneficial. Informal consultations may be expedited for routine, non-controversial actions if the conditions below are met.

To request an expedited consultation you should follow the steps outlined below.

Alaska

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Determine that the (routine, non-controversial) action you are authorizing, funding or carrying out meets both of these criteria:

  1. The proposed action is a routine coastal construction project and is substantially similar to actions that have recently received Letters of Concurrence from the NMFS Alaska Region; and
  2. The proposed action is not the subject of pending or reasonably foreseeable litigation and is not considered to be controversial.

Determine that the action is not likely to adversely affect any ESA-listed species or critical habitat. To make this conclusion, all effects from the action must qualify as one of the following:

  1. Wholly beneficial: Any impacts to the species or critical habitat are entirely positive; the action will never have any adverse effects on ESA-listed species.
  2. Insignificant: Insignificant effects relate to the magnitude of the potential impact. An action that is likely to result in the take of an ESA-listed species (including harassment) is never considered to have insignificant effects. Based on best professional judgment, a person would not be able to meaningfully measure, detect, or evaluate insignificant effects.
  3. Discountable: Discountable effects are those extremely unlikely to occur. Based on best professional judgment, a person would not expect discountable effects to occur.

Prepare and submit a comprehensive, accurate, and complete letter that describes the action and its anticipated effects to ESA-listed species and critical habitat.

For the consultation to be expedited, it is essential that the letter include a detailed justification to support each of your conclusions. A consultation letter will be considered complete and adequate for expedited consultation if it contains all of the following information in sufficient detail:

  1. An adequate description of the proposed action. This is the what, where, when, who, and how of the project. Describe (1) what the project/action is; (2) where the project is (attached maps are helpful); (3) when the action is going to take place, timeline, and implementation schedules; (4) who is going to do the action and under what authority; and (5) how the action will be accomplished, including specific mitigation measures to avoid effects to listed resources. For multi-phased project, describe each phase separately. Including detailed information and specifications helps us understand the project scope. Required information by project type can be found in Alaska's template (.docx) (revised 05/26/2021).
  2. An adequate description of the action area. The action area is all areas affected directly or indirectly by the action, including effects of increased noise, suspended sediment, water quality, and/or vessel traffic. The action area is distinct from and larger than the project footprint because some elements of the project (e.g., noise) 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. Indirect effects are effects caused by the proposed action and are later in time, but still reasonably certain to occur. They may include the effects of activities that are interrelated to, or interdependent with, the proposed action. An interrelated activity is part of the proposed action and depends on the proposed action for justification. Interdependent activities are those that follow the proposed action in time, but are dependent upon the current action having taken place before the interdependent action can commence.
  3. Identification of each Alaska ESA-listed species and/or designated critical habitat that may be affected by the action along with a reference to the most recent listing/designation notice in the Federal Register and any applicable species recovery plans.
  4. An adequate discussion of each potential effect on each ESA-listed species and/or each physical and biological feature of designated critical habitat. (Physical and biological features of critical habitat are referred to as “Primary Constituent Elements” or “Essential Features” in older critical habitat designations). This must include a detailed rationale to support the conclusion that all effects are discountable, insignificant, or wholly beneficial.
  5. A statement certifying that you have used the best scientific and commercial data available.
  6. A conclusion specifying that you have made the determination that the action is not likely to adversely affect listed species or critical habitat, if present, and that you request NMFS concurrence.

If NOAA Fisheries determines the consultation request is adequate and eligible for expedited consultation, we will provide you with a letter of concurrence using an established template.

Under the current process (not expedited), these letters can take over a month to finalize depending on the amount of detail provided by the action agency in the incoming request. By undergoing expedited consultation, you should receive your concurrence letter much sooner.    

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