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ESA Section 7: Interagency Consultation
Section 7 of the Endangered Species Act (ESA) requires Federal agencies to ensure that actions they authorize, fund, or carry out do not jeopardize the existence of any species listed under the ESA, or destroy or adversely modify designated critical habitat of any listed species. Thus, Section 7 requires consultation by the Federal 'action agency' (the agency authorizing, funding, or carrying out the action) with the appropriate regulatory agency, either the National Marine Fisheries Service (NMFS) for marine species, or the U.S. Fish & Wildlife Service (USFWS) for terrestrial and freshwater species.
The purpose of this webpage is to provide Federal action agencies or their representatives with information and materials needed to consult with NMFS on Federal actions affecting ESA-listed marine species in the Pacific Islands Region (Hawaii, the Marianas, American Samoa, and the Pacific Remote Island Area). Action agencies need to know what ESA-listed species or designated critical habitat occur in their project areas. The 'Species Lists' links below provide lists of ESA-listed marine species occurring in the Hawaiian Archipelago (including the Northwestern Hawaiian Islands), the Marianas Archipelago (the Territory of Guam and the Commonwealth of the Northern Marianas), and the Territory of American Samoa. The only designated critical habitat for any of these species in the Pacific Islands Region is for the Hawaiian monk seal in the Northwestern Hawaiian Islands.
For Federal actions occurring within the range of ESA-listed species, action agencies need to determine if ESA consultation is required. If 'no effect' to listed species is expected, then consultation is not required. If listed species may be affected, then consultation is required. If consultation is required, action agencies should provide the appropriate documentation. The 'Action Agency Consultation Package' links below provide information to help action agencies determine if ESA consultation is necessary (Flow Chart and Effects Determination Guidance). A Word or "doc" file is provided that action agencies may use to document effects determination for their own files (Effects Determination Record). Word templates are also provided to assist action agencies in initiating ESA consultation with NMFS (Templates for Consultation Request Letter and Biological Assessments-Biological Evaluations).
We strongly encourage action agency staff, non-federal representatives, or anybody else who may need to do ESA consultations to contact us at the numbers/emails below before making effects determinations or writing consultation request letters or other documents. We most likely can provide technical assistance before you begin the official ESA consultation that will make the process more efficient.
Please contact us If you have any questions regarding ESA consultation:
The Endangered Species Act (ESA) and its implementing regulations recognize the necessity to respond immediately to emergencies and provide for expedited consultation that allows Federal agencies to complete their critical missions in a timely manner while still providing the protections afforded to listed species under the Endangered Species Act. Where emergency actions are required that may affect listed species and/or critical habitats, a Federal agency may not have the time for the administrative work required by the consultation regulations under non-emergency conditions. Emergency consultation procedures allow action agencies to incorporate endangered species concerns into their actions during a response to an emergency.
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, our primary objective is to provide recommendations for minimizing adverse effects to listed species during the emergency response. During emergency events, the primary objective of the responding agency must be to protect human life and property and this objective takes precedence over considerations for minimizing adverse effects to listed species under the ESA. The protection of listed species and designated critical habitat is initiated when it would not interfere with the emergency response to protect human life and property.
What is the process and who do you contact for an Emergency Consultation? Please see: Emergency Consultations (September 2012, pdf 52.69 kB)
Proposed Species and Proposed Critical Habitat: Conference Process:
Section 7 of the ESA provides a mechanism for identifying and resolving potential conflicts between a proposed action and proposed species or proposed critical habitat at an early planning stage. While consultations are required when the proposed action may affect listed species, a conference is required only when the proposed action is likely to jeopardize the continued existence of a proposed species or destroy or adversely modify proposed critical habitat. However, Federal action agencies may request a conference on any proposed action that may affect proposed species or proposed critical habitat. NMFS also can request a conference after reviewing available information suggesting a proposed action is likely to jeopardize proposed species or destroy or adversely modify proposed critical habitat. Conferences may involve informal discussions among NMFS, the action agency, and the applicant (if any). During the conference, NMFS may assist the action agency in determining effects and may advise the action agency on ways to avoid or minimize adverse effects to proposed species (or candidate species if present, and voluntarily considered by the action agency and/or the applicant), or proposed critical habitat. Action agencies may request formal conference on a proposed action. Formal conferences follow the same procedures as formal consultation. The opinion issued at the end of a formal conference is called a conference opinion. It follows the contents and format of a biological opinion. However, the incidental take statement provided with a conference opinion does not take effect until the Services adopt the conference opinion as a biological opinion on the proposed action - after the species is listed.
Please contact us if you have any questions regarding the ESA conference process:
Species Lists (only listed species under NMFS jurisdiction)
Action Agency Consultation Package
Template for Consultation Request Cover Letter
Other ESA Consultation Documents
- An Assesement Framework for Conducting Jeopardy Analysis (pdf, Oct 2004, 238 kB)