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Endangered Species Act

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 species.

For example, before submitting a notice of intent (NOI) for coverage under the federal General Construction 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 is required.

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 avoided.

For more information see: Consultations with Federal Agencies - Section 7 of the Endangered Species Act

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.

State Agencies/Regulations
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.