Midwest ESA Section 7 Technical Assistance
This page provides section 7 consultation guidance for federal agencies and their applicants and designated non-federal representatives. We provide this information to help ensure that federal agencies may fulfill their section 7 obligations while streamlining their interactions with U.S. Fish and Wildlife Service Ecological Services Field Offices.
Section 7 Consultation Technical Assistance Overview
Section 7 of the Endangered Species Act of 1973 (ESA) requires all Federal agencies to use their authorities to conserve endangered and threatened species in consultation with U.S. Fish and Wildlife Service (USFWS). This ‘proactive conservation mandate’ for Federal agencies is articulated in section 7(a)(1) of the law. Section 7(a)(2) contains a complementary consultation mandate for Federal agencies, which we discuss below.
Section 7(a)(2) Mandate
Section 7(a)(2) directs all Federal agencies to ensure that the actions they authorize, fund, or carry out do not jeopardize the continued existence of endangered or threatened species or destroy or adversely modify critical habitat. The Section 7 implementing regulations (50 CFR Part 402) specify how Federal agencies are to fulfill their section 7(a)(2) consultation requirements.
Section 7(a)(2) Responsibilities
Under the Section 7 implementing regulations (50 CFR Part 402), Federal agencies must review their actions to determine whether they may affect endangered or threatened species or critical habitat. To accomplish this, Federal agencies must determine whether any listed species may be present in the action area and whether that area overlaps with critical habitat. We explain how to do that in Step 2 of this guidance.
If one or more listed species may be present in the action area – or if critical habitat overlaps with the action area – agencies must evaluate the potential effects of their action (see Step 3 and Step 4 of this guidance). If no species or their critical habitat are present or affected, no consultation is required. Consultation will be either informal, ending with written concurrence from USFWS, or formal. Formal consultation concludes when USFWS delivers its biological opinion to the Federal agency.
Requirements for Proposed Species and Proposed Critical Habitat
Agencies must confer with the USFWS per Section 7(a)(4) of the ESA if any action is likely to jeopardize a species proposed for listing or to destroy or adversely modify proposed critical habitat. To determine whether either of these are likely, agencies may follow the same approach that we recommend for listed species and designated critical habitat – that is, evaluate the likely effects of their actions on any proposed species that may be present in the action area and on any proposed critical habitat that overlaps with the action area.
Step 1: Project Type
Based on your project type (listed below), either contact the appropriate Ecological Services Field Office or proceed to Step 2.
- For wind energy projects, contact the Ecological Services Field Office located in the state where the project would occur for assistance.
- For projects installing towers that use guy wires or are over 200 feet in height, contact the Ecological Services Field Office located in the state where the project would occur for assistance.
- For all other projects, continue with Step 2.
Step 2: Presence of Listed Species or Critical Habitat
Determine whether a listed or proposed species or designated or proposed critical habitat may be present within the action area.
2.A. Define the action area for your project.
2.B. Enter the action area location into IPaC and review the resulting Resources list.
The Endangered Species part of the IPaC Resources list will include endangered species, threatened species, species proposed for listing, candidate species, and critical habitats.
- If there are no species or critical habitats on the Endangered Species portion of the Resources list conclude "no species and no critical habitat present" and document your finding. No consultation under ESA section 7(a)(2) is required if the action would result in no effects to listed species or critical habitat.
- If any species or critical habitats are on the Resources list, continue to 2.C.
2.C. If your project is any of the following*:
- a HUD project,
- a pipeline project,
- a buried utilities project,
- a telecommunication project, or
- a request for a Conditional Letter of Map Revision (CLOMR) from FEMA,
View additional instructions.
Follow the link above also for any project that is likely to affect only areas that are already paved; cultivated cropland; covered by structures or lawns; or, mowed too frequently to develop natural or semi-natural characteristics.
Weigh carefully any potential impacts to surface or groundwater that could have consequences for species or critical habitats even if project activities take place only in developed, cultivated, etc. areas.
2.D. Review Species Guidelines attached to the Resources list from IPaC, if any, and/or review species information pages and other information sources.
Cross-reference the species information with your knowledge of the action area, including the results of surveys. Review Table 1 to determine the next step for each species and critical habitat.
Note that for some species or projects, IPaC will present you with Determination Keys. You may be able to use one or more Determination Keys to conclude consultation on your action.
Five-year reviews and other information available on USFWS Species Profile pages may also help you to evaluate potential effects and to develop appropriate avoidance and minimization measures. Search for Species Profiles.
| Is the Species’ Habitat Present in the Action Area? | Species Survey Result | Conclusion | Next Step | Comments |
|---|---|---|---|---|
| No | Survey not warranted | Species not present in action area | Consultation not required | Consider the potential for the species’ habitat to become established in the action area before effects of the action have ended. |
| Yes | Survey(s) for species in the action area are negative | Species not present in action area1 | Consultation not required | 1Plan and implement surveys and interpret results in coordination with USFWS and/or in accordance with USFWS-recommended survey protocols. |
| Yes | Survey data unavailable or inconclusive for action area | Assume species is present in the action area. | Proceed to Step 3 | 1Plan and implement surveys and interpret results in coordination with USFWS and/or in accordance with USFWS-recommended survey protocols. |
| Yes | Survey(s) for species in the action area are positive | Species is present | Proceed to Step 3 | 1Plan and implement surveys and interpret results in coordination with USFWS and/or in accordance with USFWS-recommended survey protocols. |
Step 3: Effects to Listed Species or Critical Habitat
Determine whether the proposed action may affect listed or proposed species or designated or proposed critical habitat.
In step 2, you found that (1) a listed species is likely to be present in the action area or (2) it overlaps with critical habitat. In this step, you will determine whether your project may affect a listed species or critical habitat and whether consultation is required.
3.A. Describe the action and the effects of the action.
Identify stressors or effects to the species and to the essential physical and biological features of any critical habitat that overlaps with the action area.
3.B.1. Determine whether any of the species are likely to be exposed to stressors caused by the proposed action.
Consider all consequences of the action and assess the potential for each life stage of the species that occurs in the action area to be exposed to the stressors. Deconstruct the action into its component parts to be sure that you do not miss any part of the action that could cause effects to the species.
- If no listed or proposed species will be exposed to stressors caused by the action, a ‘no effect’ conclusion may be appropriate – be sure to separately assess effects to critical habitat, if any overlaps with the action area (see B2). See this example of a "no effect" document.
- Stressors that affect species’ resources may have consequences even if the species is not present when the project is implemented. For example, removal of Indiana bat maternity roost trees during the winter would affect females when they return from hibernacula in the spring.
3.B.2. If the action area does not overlap with critical habitat, go to Step C. If it does, determine whether the proposed action or other activities that are caused by the proposed action will affect any of the physical and biological features (PBF) of critical habitat.
Deconstruct the action into its component parts to be sure that you do not inadvertently exclude any potential consequences of the action. Go to Step 3.C.
3.C. Determine whether – and how – the species or critical habitat PBFs are likely to respond or change, respectively, upon exposure.
Check the pertinent “SPECIES INFO” thumbnail available from within IPaC for useful information sources (see figures below).
Determination and Next Steps:
No Effect
- A ‘no effect’ conclusion would be appropriate if the proposed action – or other activities that are caused by the proposed action – would have no consequences to listed species or critical habitat.
- Document your finding. The ESA does not require consultation if the proposed action and other activities that are caused by the proposed action will result in no effect whatsoever to listed species or critical habitat.
- If the proposed action – or other activities that are caused by the proposed action – may affect proposed species or proposed critical habitat, determine whether a conference [ESA §7(a)(4)] is required.
May Affect
- A ‘may affect’ determination would be appropriate if the proposed action – or other activities that are caused by the proposed action – may have consequences to listed species or critical habitat. For example:
- one or more individuals of a listed species may respond to a stressor caused by the proposed action or by other activities that are caused by the proposed action; or,
- the proposed action or other activities that are caused by the proposed action may result in changes to one or more critical habitat PBFs in the action area.
- To determine whether the potential effects are likely to be adverse, proceed to Step 4.
Adequacy of Information & Surveys:
- Agencies may base their determinations on the best evidence that is available or can be developed during consultation. Agencies must give the benefit of any doubt to the species when there are any inadequacies in the information. Inadequacies may include uncertainty in any step of the analysis.
- If determinations are based on inadequate information, then the Federal agency has a “continuing obligation to make a reasonable effort to develop that information.”
- To provide adequate information on which to base a determination, it may be appropriate to conduct surveys to determine whether listed species are present in the action area. Please contact the Ecological Services Field Office for more information or see the survey guidelines that the Service has made available in IPaC.
Step 4: Adverse Effects to Listed Species or Critical Habitat
Determine whether listed or proposed species or designated or proposed critical habitat may be adversely affected.
In Step 3, you determined that the proposed action or other activities that are caused by the proposed action may affect a species or critical habitat. The next step is to describe the manner in which they will respond or be altered. Specifically, to assess whether the species/critical habitat is "not likely to be adversely affected" or "likely to be adversely affected." Consider the following in making your finding:
4.A. When you are basing your determination on effects to the species' habitat or other resources rather than to the species itself, conduct a two-part assessment:
- determine how the habitat or the resource will respond to the proposed action (for example, changes in habitat quality, quantity, availability or distribution), and
- assess how the species is expected to respond to the effects to its habitat or other resources.
4.B. Critical habitat analyses focus on how the proposed action will affect the physical and biological features of the critical habitat in the action area.
4.C. A proposed action warrants a "may affect, not likely to be adversely affect" finding when its effects – and the effects of other activities that are caused by the proposed action – are wholly beneficial, insignificant or discountable.
- If there will be only beneficial effects, conclude "may affect, not likely to adversely affect" and submit your finding and supporting rationale to the appropriate ES Field Office and request concurrence.
- If all effects of the action are expected to be insignificant, conclude "may affect, not likely to adversely affect" and submit your finding and supporting rationale to the appropriate ES Field Office and request concurrence.
- If all effects of the action are expected to be discountable, then conclude "may affect, not likely to adversely affect" and submit your finding and supporting rationale to the appropriate ES Field Office and request concurrence.
You may submit your request electronically to the ES Field Office for your project area. For your assistance, an example letter and template are provided.
A written request for concurrence with a not likely to adversely affect determination shall include information similar to the types of information described for formal consultation at §402.14(c)(1) sufficient for the Service to determine if it concurs.
Template (Word) - Example Letter (PDF)
4.D. If you cannot conclude that the effects of the action will be wholly beneficial, insignificant, or discountable, check IPaC for Project Design Guidelines to determine whether there any measures that may be implemented to avoid or minimize the negative effects.
- If you modify your proposed action to include conservation measures, assess how inclusion of those measures will likely change the effects of the action.
- Conservation measures may, for example, alter or eliminate the exposure of species or critical habitat PBFs to stressors or they may modify how the species or PBFs are likely to respond to such exposure. Repeat Step 3 and document your conclusion, as appropriate. Be sure to identify the specific conservation measures you intend to incorporate and their associated biological consequences.
4.E. If you cannot conclude that effects of the action will be wholly beneficial, insignificant, or discountable, contact the appropriate ES Field Office for assistance.