Endangered Species Act Section 7 Consultation and Biological Assessments
This page provides information and links to reference sources on the ESA Section 7 consultation process. It is part of a series of MRSC pages on Endangered Species: Salmon, Bull Trout, and Rockfish.
Federally funded programs at the state and local level, such as transportation projects and some habitat restoration projects, require a Section 7 consultation process, which includes a biological assessment. Each federal agency must ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species in the wild, or destroy or adversely modify its critical habitat. Other consultation requirements for both federal and state agencies are required under the Magnuson-Stevens Fishery Conservation and Management Act.
What is ESA Section 7?
Section 7 of the Endangered Species Act, 16 U.S.C. § 1536(a)(2), requires all federal agencies to consult with the National Marine Fisheries Service (NMFS) for marine and anadromus species, or the United States Fish and Wildlife Service (FWS) for fresh-water and wildlife, if they are proposing an "action" that may affect listed species or their designated habitat. Action is defined broadly to include funding, permitting and other regulatory actions. (See 50 C.F.R. § 402.02 ). For local governments, any project that requires a federal permit or receives federal funding is subject to Section 7.
Each federal agency is to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. This is done through "consultation." If such species may be present, the local government must conduct a biological assessment (BA) for the purpose of analyzing the potential effects of the project on listed species and critical habitat in order to establish and justify an "effect determination" (assistance and coordination may be available from the state, especially with transportation projects). The federal agency reviews the BA and, if it concludes that the project may adversely affect a listed species or their habitat, it prepares a "biological opinion." The biological opinion may recommend "reasonable and prudent alternatives" to the proposed action to avoid jeopardizing or adversely modifying habitat. These so-called "RPAs" carry great weight with other federal agencies and are often treated as binding requirements.
Section 7 Reference
- Consultations Overview, U.S. Fish and Wildlife Service - Includes frequently asked questions, library of documents related to consultations, and USFWS policies regarding consultations
- Interagency Consultation (ESA Section 7), NOAA Fisheries
- Policy Guidance: Water Quality Standards & the Endangered Species Act, Environmental Protection Agency - Includes memorandum of agreement between the Environmental Protection Agency, Fish and Wildlife Service, and National Marine Fisheries Service Regarding Enhanced Coordination under the Clean Water Act and Endangered Species Act, 2001
- EPA Region 10 Northwest Biological Assessment Workgroup - The purpose of the Northwest Biological Assessment Workgroup (NBAW) is to promote better understanding of the biotic communities in freshwater aquatic ecosystems of the northwest
- The Endangered Species Act - A Primer () [Scroll down to Government Responsibilities, Part III Section B], by Patrick W. Ryan and Galen Schuler of Perkins Coie LLP, 1998
What is a Biological Assessment?
Biological Assessment - A document prepared for the Section 7 process to determine whether a proposed major construction activity under the authority of a federal action agency is likely to adversely affect listed species, proposed species, or designated critical habitat. (US Fish and Wildlife Service Endangered Species Glossary, Region 3)
Biological Assessment - Information prepared by, or under the direction of, a federal agency to determine whether a proposed action is likely to: (1) adversely affect listed species or designated critical habitat; (2) jeopardize the continued existence of species that are proposed for listing; or (3) adversely modify proposed critical habitat. Biological assessments must be prepared for "major construction activities." See 50 C.F.R. § 402.02 (). The outcome of this biological assessment determines whether formal consultation or a conference is necessary. (50 C.F.R. § 402.02, 50 C.F.R. § 402.12). (U.S. Fish and Wildlife Service Final ESA Section 7 Consultation Handbook, 03/1998)
Requirements for Biological Assessments
- Army Corps of Engineers Programatic ESA Consultations, Seattle - Lists various activities in Washington State typically authorized by certain Nationwide Permits
- Environmental Protection Agency Monitoring Water Quality Bioassessments, EPA Office of Water
- Washington State Department of Transportation Endangered Species Act (ESA) and WSDOT - Information on biological assessments for road construction projects
- Environmental Processes (), Ch. 24, Local Agency Guidelines, LAG Manual, WSDOT, 04/2011- See information related to Section 7 and Biological Assessment
- Fish, Wildlife and Vegetation (), Ch. 436, Environmental Procedures Manual, WSDOT, 06/2011 - See information related to Section 7 and Biological Assessment