Frequent Questions - Section 7 and the Cooperative Interagency Process in the Greater Atlantic Region
Here are the answers to federal action agencies' most frequently asked questions.
Why do I need to consult with NOAA Fisheries?
Consultation with NOAA Fisheries is required when a federal action may affect species listed by us under the Endangered Species Act (ESA) and/or their designated critical habitat. Section 7(a)(2) of the ESA states:
“Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.”
The action agency must determine if a project may affect listed species and/or critical habitat, and thus needs consultation, but we can assist you with technical assistance on the life history of the species and features of any critical habitat in the vicinity of your project to aid you in making an informed determination. Failure to consult with NOAA Fisheries, when necessary and appropriate, may leave an action agency vulnerable to litigation.
What is the difference between formal and informal consultation?
Informal consultation concludes with a “Not Likely to Adversely Affect” (NLAA) concurrence from NOAA Fisheries after the action agency requests consultation and submits their NLAA determination with supporting analyses and documentation. Not likely to adversely affect means that all effects are insignificant (i.e., so small they cannot be meaningfully measured, detected, or evaluated), discountable (i.e., extremely unlikely to occur), or wholly beneficial (positive effects with no associated negative effects). At the conclusion of informal consultation, the action agency will receive a concurrence letter from us.
Formal consultation is initiated with a “Likely to Adversely Affect” (LAA) determination and concludes when NOAA Fisheries issues a Biological Opinion that states whether the action is likely to adversely affect listed species and/or destroy or adversely modify critical habitat. If an action is likely to jeopardize the continued existence of listed species, then a Reasonable Prudent Alternative (RPA) will also be issued to the action agency as part of the Biological Opinion. If the action is reasonably certain to result in the “take” of a listed species, NOAA Fisheries will issue an Incidental Take Statement (ITS) with Reasonable and Prudent Measures (RPMs) and Terms and Conditions (T&Cs), exempting a certain amount of “take” of listed species based on the project specifications and analysis.
What happens if consultation cannot be concluded informally?
If consultation cannot be concluded informally, you must request formal consultation. You will need to prepare an analysis that 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.
- A summary of any relevant information provided by the applicant, if available.
- 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.
After you submit this analysis to us along with your request, we will review your request for consultation and contact you by phone or email if we need more information. Once we have all the necessary information, 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 initiation. The date of initiation is calculated from when we receive all the necessary information to complete formal consultation. This timeline can be extended if we both agree more time is needed. If a third party is proposing the action as an applicant before your agency, the third party must also agree to an extension.
What do I need to consider when making a no effect determination?
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, you must be able to make the determination for ALL species and critical habitat in the action area.
If you determine that the action has no effect, section 7 consultation with NOAA Fisheries is not required. You should document the “no effect” determination for your files in order to explain why you are not consulting with NOAA Fisheries under ESA Section 7. It is not necessary to notify NOAA Fisheries or seek our concurrence with your no effect determination as we are not obligated to review it, concur with it, or otherwise provide comments on it.
During the Consultation Process
What do I need to include in an informal consultation request?
A complete and adequate letter must be submitted to us in order to initiate informal consultation. The letter must include a detailed justification to support your effects determination. A consultation letter will be considered complete and adequate for consultation once it contains all of the following information in sufficient detail:
- An adequate description of the proposed action. This is the what, where, when, who, and how of the project. Describe:
- What the project/action is (include all pertinent elements known at the time of proposal);
- Where the project will occur (attached maps are helpful, also include coordinates);
- When the action is going to take place (i.e., time line, time of year restrictions, and implementation schedules);
- Who is going to perform the action and under what authority; and
- How the action will be accomplished (i.e., details regarding the process used to undertake the action). For multi-phased projects, describe each phase separately. Including detailed information and specifications helps us understand the project scope. Required information by project type can be found in our template. Verify that you are including all elements of your action in this section, as you cannot segment an individual action.
- An adequate description of the action area. The action area is defined as all areas affected directly or indirectly by the action, and not merely the immediate area involved in the action (50 CFR §402.02). The action area may include areas where effects of increased noise, suspended sediment, water quality, shading, and/or vessel traffic occur. Effects of the action are all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities 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 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.
- Identification of each 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. Your letter should detail which life stages of listed species and which essential critical habitat features are present in the action area and when they may occur. See our Species and Critical Habitat descriptions for detailed information.
- An adequate discussion of potential effects of each stressor created by the project on the ESA-listed species and/or the essential features of designated critical habitat in the action area. Your analysis must include a detailed rationale that for each project element and associated stressor that supports the conclusion that all effects are “not likely to adversely affect” listed species/designated critical habitat (i.e., all effects are discountable, insignificant, or wholly beneficial). An adequate description or discussion generally means that the consultation request document provides a well-reasoned explanation for the applicable standard and is not conclusory or internally contradictory.
- A statement certifying that you have used the best scientific and commercial data available.
- A conclusion specifying that you have made the determination that the action is not likely to adversely affect listed species and, if present, critical habitat, and that you request our concurrence.
See Technical Guidance for a template letter and examples of successful consultations.
Where can I find out what species and critical habitat are in the vicinity of my proposed project?
Species information including species presence and critical habitat maps and tables can be found at Species/Critical Habitat Information and Maps.
What is the difference between insignificant and discountable effects?
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 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.
Discountable effects are those extremely unlikely to occur. Based on best professional judgment, a person would not expect discountable effects to occur.
What constitutes the “best available scientific and commercial data”?
Best available information may include the results of studies or surveys conducted by you or your designated non-federal representative, information contained in past biological opinions and biological assessments, status reports and listing rules, including critical habitat designations, recovery plans, and published and unpublished studies done on the species or habitat. At times even the best information available may not provide a sufficient basis to predict effects to a species. When this is the case, we will work with you to develop sufficient information to adequately evaluate the effects of the proposed action. If it is not possible to develop such information, the information that is available will be used in such a way that the benefit of the doubt is provided to the species when evaluating the potential for adverse effects.
What are some mitigation measures I can implement into my project to decrease the risk to ESA-listed species?
- Consider limiting activities to a time of year when ESA-listed species are not present in the area (see Species Information and Maps).
- For activities that increase levels of suspended sediment, consider the use of silt management and/or soil erosion best practices (i.e., silt curtains and/or cofferdams).
- For any impacts to habitat or conditions that temporarily render affected water bodies unsuitable for the above-mentioned species, consider the use of timing restrictions for in-water work.
- For pile-driving or other activities that may affect underwater noise levels, consider the use of cushion blocks and other noise attenuating tools to avoid reaching noise levels that will cause injury or behavioral disturbance to fish, whales, or sea turtles.
- Maintain zones of passage for listed species during all in-water work.
- Typically dredging projects that utilize mechanical or cutterhead dredges pose less risk of impingement/entrainment to listed species than hopper dredges.
How do I address conference provisions for proposed listed species or critical habitat?
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.
More information about conference requirements (PDF, 13 pages)
What happens if I submit a consultation request that does not include all the necessary information?
We will send the request back to you and provide guidance that outlines the additional information required to complete consultation. You will need to make the necessary changes to the document and resubmit it to us. It is always wise to discuss your project with your Section 7 Contact prior to submitting a signed letter if you have questions or concerns.
When does informal/formal consultation officially start?
Once all the information needed to begin consultation is received (i.e., all effects have been considered, analyses complete, details of action are complete in your incoming request, etc.), consultation may begin. Up until this point, any conversations and negotiations with us are considered pre-consultation and technical guidance.
How long does it take to receive a letter of concurrence once I submit an adequate request for consultation?
We shall provide concurrence for informal consultations within 60 days of the initiation of consultation. With a well written request, you will typically receive a letter of concurrence within one week. We are required under regulation to provide a Biological Opinion for formal consultations within 135 days from the start of consultation.
After the Consultation Has Concluded
Consultation has already been completed on my project but we are modifying the action – what do I need to do?
We recommend you contact the biologist who wrote the consultation letter. You should discuss the changes and the potential need for reinitiation with the section 7 biologist before submitting your request to us. 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, you must send us a letter (following the guidelines for requesting consultation) requesting reinitiation of consultation. The request should contain an explanation of the changes to the action and 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 re-initiated 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 Assessment (BA) a Biological Opinion will need to be produced.
What do I do if a project has injured or killed an ESA-listed species?
If your project has injured or killed a listed species, this constitutes a “take” under the ESA. The term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Under an informal consultation, a take constitutes a trigger for re-initiation of consultation. Some formal consultations come with an incidental take statement, which would cover a certain number of takes. Please contact the consulting biologist further information on what steps to take. If you have not previously consulted on a project that results in a take (i.e., no effect project), please contact your consultation biologist.