Section 7 Consultation Process
No Effect Determination
No effect means there will be no consequences to listed species or critical habitat that result from the proposed action, including the consequences of any activities that would not occur but for the proposed action. These terms are defined in our section 7 regulations at 50 CFR §402.02 and in other guidance on our website. Some examples of when a “no effect” determination is appropriate are:
- No listed species or critical habitat occur anywhere, or at any time, in the action area (i.e., not just within the immediate project footprint but also outside the immediate area involved in the action).
- The listed species occur in the action area seasonally, but the action will be timed to avoid the presence of listed species and there will be no effect to those species or their critical habitat once they return to the area (e.g., an activity will not have an effect on the forage base or spawning habitat of a species so that species may use the areas when they return to the area).
- The listed species occur in the action area and may be present at the time of the project, but there are no plausible routes of effects to the species. Critical habitat is also in the action area, but there are no plausible routes of effects to critical habitat.
What happens when an action agency makes a “no effect” determination? If an action agency determines that the action has no effect, no section 7 consultation is required. Action agencies should document the “no effect” determination in their files in order to explain why section 7 consultation is not necessary. The action agency is not required to notify us or seek our concurrence with a no effect determination as we are not obligated to review it, concur with it, or otherwise provide comments on it. We focus our limited resources on actions that do require section 7 consultation. In order for an action agency to determine if any activities will have “no effect” on listed species and critical habitat in the action area, the determination must be able to be made for ALL species and critical habitat in the action area.
Under section 7 of the Endangered Species Act, federal agencies must consult with NOAA Fisheries when any action the agency carries out, funds, or authorizes may affect either a species listed as threatened or endangered under the Act, or any critical habitat designated for it. If the Federal agency taking the action (referred to as the “action agency” under section 7) determines that the project is Not Likely to Adversely Affect (NLAA) listed species and/or critical habitat, they submit an informal consultation request to NOAA Fisheries (referred to as the “Consulting Agency under section 7) for concurrence. NOAA Fisheries will provide a Letter of Concurrence to the action agency if it agrees with the action agency’s NLAA determination. NOAA Fisheries will provide written concurrence or non-concurrence with the Federal agency's determination within 60 days once they receive enough information to make a determination. Once the concurrence letter is issued, the consultation process is terminated, and no further action is necessary. An NLAA determination is the appropriate conclusion to be made when effects on ESA listed species and/or critical habitat are expected to be extremely unlikely to occur, insignificant (so small they cannot be meaningfully measured, detected or evaluated), or wholly beneficial (ALL effects benefit the species and/or critical habitat).
If consultation cannot be concluded informally because adverse effects to listed species are expected, the action agency must request formal consultation. To initiate formal consultation, the action agency must provide information specified in 50 CFR 402.14(c) and (d); this includes:
- 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.
- A map or description of 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 §402.02).
- 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.
- A description of the effects of the action and an analysis of any cumulative effects.
- 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
This information should be submitted to us along with a letter making a “likely to adversely affect” determination, that requests formal consultation. Your consultation request will be assigned to a section 7 biologist and the assigned biologist will review your request for consultation and contact you by phone or email if more information is needed. Once all the necessary information is received, we will send you a letter stating that we have all the information necessary to initiate formal consultation. The biologist will then draft a Biological Opinion, including an Incidental Take Statement (as appropriate). The ESA section 7 regulations require us to provide a final Biological Opinion to you within 135 days of consultation initiation. The date of initiation is calculated from when we receive ALL the necessary information to complete formal consultation (e.g., all project specifics included, action area correctly defined, all stressors have been adequately addressed, all effects analyzed, etc.). This timeline can be extended if both agencies agree more time is needed. If a third party is proposing the action as an applicant, the third party must also agree to an extension. Please note that special procedures are required for “major construction” projects, including the preparation of a Biological Assessment (see 50 CFR 402.12, or Contact Us for more information).
Sometimes after completion of consultation, the project changes, a new species is listed, or critical habitat is designated or revised while the project is ongoing. Other times, take occurs when not exempted, or other relevant new information becomes available (e.g., new research on geographic extent of a species range). Each of these scenarios may result in the need to revise the effects analysis in the Biological Opinion or in an informal consultation letter. Reinitiation of consultation is required and shall be requested by the Federal agency or by us, where discretionary Federal involvement or control over the action has been retained or is authorized by law, and:
- If the amount or extent of taking specified in the incidental take statement is exceeded;
- If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;
- If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or
- If a new species is listed or critical habitat designated that may be affected by the identified action.
Trigger 1 typically only applies to formal consultations that include an Incidental Take Statement (ITS) within a Biological Opinion, but, if take resulted from an action where it was not exempted and included under an ITS, reinitiation is required immediately. If a project changes, the action agency staff member should contact the section 7 biologist who wrote the consultation letter and/or Biological Opinion. Staff should discuss the changes and the potential need for reinitiation before submitting a request for reinitiation. Reinitiation is not always required if the project changes; the changes need to result in the level and/or type of effects to rise beyond the level and/or type of effects that have previously been considered in the consultation. If reinitiation is necessary, the action agency must send us a letter (following the guidelines for requesting consultation) requesting reinitiation of consultation. The request should contain an assessment of the effects of the modified action on listed species and/or critical habitat. If the new determination is that the modified action is “not likely to adversely affect” listed species or critical habitat, an analysis must be provided to support the determination and submitted with a request for our concurrence. If we concur, we will send back a letter which will complete the reinitiated consultation. However, if the modified action is likely to adversely affect listed species and/or critical habitat, then formal consultation is required, and a Biological Opinion will need to be produced (see Formal Consultations for more information).
A programmatic consultation is a consultation addressing an agency’s multiple actions on a program, region or other basis. A programmatic 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 exposed to a set of applicable stressors, is completed up front in the biological assessment and programmatic consultation response document. At the project-specific consultation stage, a proposed activity is reviewed to determine if it can be implemented in accordance with the Project Design Criteria (PDC), or other standards regarding activity effects and stressors, identified in the programmatic consultation. Consistent with the joint Services’ 2002 memo the following elements should be included in a programmatic consultation to ensure its consistency with ESA section 7 and its implementing regulations.
- PDC to prevent or limit future adverse effects on listed species and critical habitat;
- Description of the manner in which projects to be implemented under the programmatic consultation may affect listed species and critical habitat and evaluation of expected level of effects from covered projects;
- Process for evaluating expected projects and their effects as well as tracking of actual aggregate or additive effects of all projects expected to be implemented under the program. The programmatic consultation document must demonstrate that when the PDC or standards are applied to each project, the aggregate effect of all projects are not likely to adversely affect listed species and their critical habitat;
- Procedures for streamlined project-specific consultation. As discussed above, if an approved programmatic consultation document is sufficiently detailed, project-specific consultations ideally will consist of findings made by action agency biologists and consulting agency biologists, respectively. An action agency will provide a description of a proposed project, or batched projects, and an assurance that the project(s) will be implemented in accordance with the criteria or standards. The consulting agency reviews the submission and either concurs with the action agency, or identifies adjustments to the project(s) necessary to make it (them) consistent with the programmatic consultation document;
- Procedures for monitoring projects, reporting requirements, and validating effects predictions; and,
- Comprehensive review of the program, generally conducted annually.
To view examples of programmatic consultations, see our Reporting webpage.
The Endangered Species Act recognizes the need to respond immediately to emergencies. We expeditiously process emergency consultations so Federal agencies can complete their critical missions in a timely manner while still providing the protections afforded to listed species and critical habitat under the ESA.
Where emergency actions are required that may affect listed species and/or their critical habitats, a Federal agency may not have the time for the administrative work required by normal consultation procedures under non-emergency conditions. Emergency consultation allows rapid communication between agencies and provides the Federal agency the ability to incorporate endangered species concerns into their emergency response plans.
An emergency is a situation involving an act of God, disasters, casualties, national defense or security emergencies, etc., and includes response activities that must be taken to prevent imminent loss of human life or property. Predictable events, like those covered in Emergency Use Permits issued by the Environmental Protection Agency for pesticide applications, usually do not qualify as emergencies under the Section 7 regulations unless there is a significant unexpected human health risk. During any emergency, NOAA Fisheries’ primary objective is to provide technical assistance and recommendations for minimizing adverse effects to listed species during the emergency response activities. During emergency events, the primary objective of the responding agency is to protect human life and property and this objective takes precedence if there is a conflict with protective measures for listed species under the ESA. 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.
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. If the effects of your action occur within an area where critical habitat is proposed, or where proposed species may occur, you must determine if your 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. If you conclude conference is not necessary, please state that determination and briefly explain your rationale in your request for concurrence. If the project is likely to jeopardize the continued existence of a proposed listed species and/or destroy/adversely modify proposed critical habitat, please Contact Us for more information.
See conference example (PDF, 12 pages)