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What is Section 7 Consultation?

Section 7(a)(2) requires federal agencies to “insure,” through “consultation” with FWS (or NMFS), that the activities they are proposing to “authorize, fund or carry out” will not be “likely to jeopardize the continued existence of an endangered species or a threatened species or result in the destruction or adverse modification of the [critical] habitat of such a species.” A permit applicant may and should be involved in the consultation process. There are several ways in which consultation may take place.
Where a species has been proposed for listing, the action agency may request a conferencewith FWS (or NMFS) to assist it (or the prospective permit applicant) in planning an activity in a way that will minimize or avoid effects on the species. This may avoid the need for formal consultation once the species is listed. A permit applicant may participate in such a conference.
Early consultation occurs prior to the filing of a permit application, and is intended to assist the prospective applicant in designing the activity for which it intends to seek a permit to insure that it will not cause jeopardy. It is initiated by a request from the prospective applicant to the action agency. Early consultation should result in the issuance of a preliminary Biological Opinion (BiOp) by FWS (or NMFS) as to whether the activity is likely to cause jeopardy. The preliminary BiOp can be adopted as a final BiOp (without the need for formal consultation) once a permit application is filed if there have been no significant changes in the planned activity.
An action agency (with the assistance of a prospective applicant) will sometimes (and in the case of “major construction activities” is required) to prepare a biological assessment to evaluate the effects of a proposed activity on a listed species or its habitat. The biological assessment, whose findings must be approved by FWS (or NMFS), can be used to determine whether consultation is required.
The action agency (with the assistance of any permit applicant) may consult informally with FWS or NMFS to assist it in determining whether formal consultation with respect to a particular proposed activity is required.
Formal consultation is required unless, as the result of the preparation of a biological assessment or an informal consultation, the action agency has determined, with the written concurrence of the FWS (or the NMFS), that the proposed action is not likely to adversely affect a listed species or critical habitat.
At the conclusion of the consultation, FWS (or NMFS) will provide the action agency a BiOp. The BiOp must be based on the best available scientific and commercial information. The BiOp will state whether and, if so, why the proposed activity is likely to jeopardize a listed species. It will also typically suggest Reasonably Prudent Alternatives (RPAs) to the proposed activity that would avoid jeopardy—i.e., ways in which the activity could be modified or carried out that would not result in jeopardy to the species.
If the BiOp concludes that the activity is likely to cause jeopardy, the action agency has three choices: 1) it can refrain from authorizing, funding, or carrying out the proposed activity; 2) it can adopt (or write into any permit it issues) the RPAs; or 3) it can seek an exemption from the provisions of the ESA (but note that such an exemption is virtually impossible to obtain).
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