Section 7 Consultation Process
Builders and developers will encounter Endangered Species Act (ESA) rules
if they apply for a federal stormwater construction permit (does not apply
to most state issued stormwater permits) or a wetlands dredge and fill
permit (Section 404 permits). Section 7 of the Endangered Species Act
(ESA) directs all Federal agencies to use their existing authorities to
conserve threatened and endangered species and, in consultation with the
U.S. Fish and Wildlife Service (FWS), to ensure that their actions (e.g.,
issuing a permit) do not jeopardize listed species or destroy or adversely
modify critical habitat. As a result, permitting agencies such as EPA
and the Army Corps of Engineers mandate that the permit applicant must
make a determination as to whether there will be impacts to endangered
before submitting a notice of intent (NOI) for coverage under the federal
Permit (GCP), a builder/developer must ensure and document that stormwater
discharges are not likely to jeopardize the continued existence of any
Federally-listed endangered or threatened species or result in the adverse
modification or destruction of habitat that is Federally-designated as
critical under the Endangered Species Act. The procedure that must be
followed can be found in Appendix C of the GCP.
Here's how the
consultation process works. During a federal permitting process, a developer
or builder (or their representative) must ask the Fish and Wildlife Service
(FWS) to provide a list of threatened, endangered, proposed, and candidate
species and designated critical habitats that may be present in the project
area. This can result in one of two outcomes:
- If the FWS responds that no species or critical habitats are present,
then the consultation is concluded.
- If a species is present, then the builder/developer must determine
whether the project may affect a listed species. If so, consultation
In the latter
case, if the builder/developer determines that the project does not adversely
affect any listed species, then the consultation (informal to this point)
is concluded and the decision is put in writing.
If the builder/developer
determines that a project may adversely affect a listed species or designated
critical habitat, formal consultation is required. There is a designated
period of time in which to consult (90 days), and beyond that, another
set period of time for the FWS to prepare a biological opinion (45 days).
The determination of whether or not the proposed action would be likely
to jeopardize the species or adversely modify its critical habitat is
contained in the biological opinion. If a jeopardy or adverse modification
determination is made, the biological opinion must identify any reasonable
and prudent alternatives that could allow the project to move forward.
A large percentage
of projects that would have, at least as initially planned, adverse impacts
to listed species are dealt with through informal consultation, in which
changes to the project are made so that impacts to listed species are
information see: Consultations
with Federal Agencies - Section 7 of the Endangered Species Act
Under the authority of the Endangered Species Act, the U.S. Fish and Wildlife
Service regulates impacts to endangered species. A permit is required if
a construction project will result in "incidental take" of threatened or
endangered species. A "take" is defined as harass, harm, pursue, hunt, shoot,
wound, kill trap, capture, or collect any threatened or endangered species.
Harm includes significant habitat modification where it kills or injures
a "listed" species through impairment of essential behavior (e.g., nesting
or reproduction). Listed species include those found on both a federally
maintained list as well as any state-specific list applicable to your project.
For any non-federal construction project, the burden is on the owner
and/or builder to decide if an incidental take permit is needed. The U.S.
Fish and Wildlife Service as well as many state fish and game agencies
offer services to help you determine whether your proposed project is
likely to result in take and whether a permit is an option to consider.
The U.S. Fish and Wildlife Service can also provide technical assistance
to help you design your project so as to avoid impacts. For example, the
project could be designed with seasonal restrictions on construction to
minimize disturbances during nesting.
The permit application must include a habitat conservation plan (HCP)
consisting of: an assessment of impacts; measures that will be undertaken
to monitor, minimize and mitigate any impacts; alternative actions considered
and an explanation of why they were not taken; and additional measures
that the U.S. Fish and Wildlife Service may require. Mitigation measures,
which are actions that reduce or address potential adverse effects of
a proposed activity upon species, should address specific needs of the
species involved and be manageable and enforceable. Mitigation measures
may take many forms, such as: preservation (via acquisition or conservation
easement) of existing habitat; enhancement or restoration of degraded
or a former habitat; creation of new habitats; establishment of buffer
areas around existing habitats; modifications of land use practices, and
restrictions on access.
The length of time to complete the permitting process depends on the
complexity of issues involved (e.g., the number of species) and the completeness
of the documents submitted by the applicant. "Low Effect" permits, those
involving minor impacts, are processed in approximately three months (this
does not include the time spent by the applicant for preparing the application/HCP).
Projects with greater impacts require that the applicant submit additional
documents (i.e., Environmental Assessment or Environmental Impact Statement)
and typically have a processing time of up to 12 months.
All fifty states have fish and game/wildlife agencies that work in cooperation
with U.S. Fish and Wildlife Service district offices with regard to the
incidental take permitting process. Many states also have additional laws
and regulations that protect endangered species. Use the national endangered
species tool (NEST) to find out more about the rules
in your state and to find points of contact at your U.S. Fish and Wildlife
Service district office and state fish and game/wildlife agency.