1、Complying with Section 7 of the Endangered Species Act for Transportation Projects 1 AASHTO PRACTITIONERS HANDBOOK The Practitioners Handbooks are produced by the Center for Environmental Excellence by AASHTO. The Centers Handbooks provide practical advice on a range of environmental issues that ari
2、se during the planning, development, and operation of transportation projects. The Handbooks are primarily intended for use by project managers and others who are responsible for coordinating compliance with a wide range of regulatory requirements. With their needs in mind, each Handbook includes: k
3、ey issues to consider; a background briefing; practical tips for achieving compliance; and a list of reference materials. In addition, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.org. American Asso
4、ciation of State Highway and Transportation Officials Center for Environmental Excellence by AASHTO 17 November 2016 COMPLYING WITH SECTION 7 OF THE ENDANGERED SPECIES ACT FOR TRANSPORTATION PROJECTS This Handbook provides an overview of Section 7 consultation under the Endangered Species Act (ESA)
5、and provides advice on carrying out Section 7 consultation for transportation projects. This Handbook focuses on the consultation process primarily from the perspective of the federal action agency and the applicant. The Background Briefing section describes the legal framework for Sec- tion 7 consu
6、ltation as defined in the ESA itself and in regulations issued by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. This section includes a flow chart illustrating the four main steps in Section 7 consultation and the findings that can be made at each step. The Key Issues
7、 to Consider section raises a series of questions for practi- tioners to consider when undertaking Section 7 consultation for a transpor- tation project. This section can be used as a checklist when preparing for each step in Section 7 consultation. The Practical Tips section provides advice on how
8、to comply with Section 7 requirements as efficiently and effectively as possible. Issues covered in the Practical Tips section of the Handbook include: Preparing for Section 7 consultation Defining the action area and requesting or submitting a species list Assessing the effects of the proposed acti
9、on on Section 7 resources Conducting formal consultation Conducting conference for proposed species and proposed critical habitat Coordinating Section 7 with the NEPA process and other require- ments Complying with Section 7 following completion of the NEPA processCopyright 2016, Center for Environm
10、ental Excellence by AASHTO (American Association of State Highway and Transportation Officials). All Rights Reserved. This book, or parts thereof, may not be reproduced in any form without written permission of the publisher. Printed in the United States of America. This material is based upon work
11、supported by the Federal Highway Administration under Cooperative Agreement No. DTFH61- 07-H-00019. Any opinions, findings, and conclusions or recommendations expressed in this publication are those of the Author(s) and do not necessarily reflect the view of the Federal Highway Administration. 2016
12、by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.Complying with Section 7 of the Endangered Species Act for Transportation Projects 1 This Handbook provides an overview of Section 7 consultation under the Endangered Species Act (
13、ESA) as well as advice on carrying out Section 7 consultation for transportation projects. This Handbook is intended primarily for use by transportation agencies and their consultants and therefore focuses on the consultation process from the perspective of the Federal action agency and applicant. T
14、his Handbook consists of four parts: Background Briefing provides an overview of the ESA as a whole and summarizes the four main steps in Section 7 consultation. This section also briefly discusses the relationship of Section 7 consultation to the National Environmental Policy Act (NEPA) process. Ke
15、y Issues to Consider raises a series of questions for practitioners to consider when undertaking Section 7 consultation for a transportation project. This section can be used as a checklist when preparing for Section 7 consultation. Practical Tips provides advice on how to comply with Section 7 requ
16、irements as efficiently and effectively as possible. This section is organized according to the steps of the consultation process, from initiation through completion. It also addresses intersecting issues, such as how to coordinate Section 7 consultation with the NEPA process and other requirements.
17、 Reference Materials includes a list of key resource materials relevant to Section 7 consultation, including the statute, regulations, and important guidance, as well as links to additional materials on agency websites. This Handbook also includes two appendices: Appendix A provides brief explanatio
18、ns of key terms and concepts in Section 7 consultation. Appendix B lists timeframes specified in the Section 7 regulations for various stages within the Section 7 consultation process. For readability, this Handbook uses the following simplified terminology: “Service” refers to the U.S. Fish and Wil
19、dlife Service (USFWS) or the National Marine Fisheries Service (NMFS), as applicable. In general, “the Service” is used when describing an action that could be taken by either the USFWS or NMFS. The term “Services” is used when referring to both agencies together. The terms “USFWS” and “NMFS” are us
20、ed when it is necessary to refer to a particular agency. “Federal action agency” refers to the Federal agency with responsibility for compliance with Section 7. The Section 7 regulations use the term “Federal agency” to refer to the agency with Section 7 consultation obligations, but “Federal action
21、 agency” is commonly used in practice to distinguish that agency from the USFWS and NMFS. As used in this Handbook, the “Federal action agency” also includes any State Department of Transportation (state DOT) that has assumed the responsibilities of a U.S. Department of Transportation (U.S. DOT) age
22、ncy for Section 7 consultation pursuant to an assignment program. 1 “Listed” and “designated” are used in this Handbook to refer to species listed and critical habitat designated under the ESA. In other words, these terms are used to refer to federally listed species and federally designated critica
23、l habitat. If context requires reference to a species listed under state law, the term “state-listed” is used. “Section 7 resource” is used in this Handbook to refer collectively to “listed and proposed species as well as designated and proposed critical habitat.” Where context requires, this Handbo
24、ok refers specifically to listed species, proposed species, designated critical habitat, and proposed critical habitat, as applicable. 1 See 23 USC 326 and 327. Overview 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.2 Com
25、plying with Section 7 of the Endangered Species Act for Transportation Projects “Finding” and “determination” are used interchangeably in this Handbook to refer to a conclusion reached by a Federal action agency or the Services, as applicable, during Section 7 consultation. Both of these words are u
26、sed in the Section 7 regulations, and the regulations do not give them different meanings. “Section 7 regulations” refers to the Services regulations that establish the procedures for Section 7 consultation (codified at 50 CFR Part 402). “Services Section 7 Handbook” refers to the Handbook issued by
27、 the Services as guidance for the Services staff on carrying out Section 7 consultation. 2Note that the Services Section 7 Handbook was issued in 1998, and therefore it may not fully reflect the Services current interpretations, policies, and practices in all instances. Finally, practitioners should
28、 keep in mind that Section 7 consultation practices and terminology vary somewhat among different states and regions of the country. In addition, Federal action agencies and the Services sometimes differ in their interpretations of the Section 7 regulations. As a result, it is possible that practiti
29、oners may encounter interpretations or practices that vary from those outlined in this Handbook. In those cases, practitioners should look to the Services and the Federal action agencies for direction. This Handbook should be used as a source of information only; it is not official agency guidance.
30、Background Briefing This section provides background information that may be useful in understanding the recommendations provided in the Practical Tips section. This section includes: an overview of the ESA; Federal agency responsibilities under Section 7 of the ESA; Section 7 consultation process s
31、teps, including a flow chart; and relationship of Section 7 consultation to NEPA and other requirements. Overview of the ESA Purpose of the ESA. Enacted in 1973, the ESA creates a comprehensive regulatory regime that seeks to protect imperiled fish, wildlife, and plant species from extinction and to
32、 promote the recovery of those species and the ecosystems that support them, so that they no longer need protection under the statute. USFWS and NMFS Roles. The two agencies primarily responsible for administering the ESA are the USFWS and NMFS. The USFWS, which is part of the U.S. Department of the
33、 Interior, is responsible primarily for terrestrial and freshwater organisms. NMFS, which is part of the U.S. Department of Commerce, is responsible for marine (ocean-dependent) species such as whales, seals, and salmon. The USFWS and NMFS share responsibility for turtles, Atlantic salmon, and Gulf
34、sturgeon. Requirement to List Species as Threatened or Endangered. Section 4 of the ESA gives the Services responsibility for listing fish, wildlife, and plant species as threatened or endangered. 3A species is listed as “threatened” if it “is likely to become an endangered species within the forese
35、eable future throughout all or a significant portion of its range”;a species is listed as “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 4Any interested person can petition the Service to list, de-list, or re-classify a species. 5The listing pro
36、cess begins with a notice of proposed rulemaking published in the Federal Register. After an opportunity for public comment on the proposed listing, the Service may issue a final rule listing the species. Requirement to Designate Critical Habitat. Section 4 of the ESA directs the Services to designa
37、te critical habitat for species that have been listed as threatened or endangered. 6As with a species listing, the designation of critical habitat occurs through a rulemaking process: a proposed rule is published in the Federal Register, followed by a public comment period, and then 2 USFWS and NMFS
38、, “Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act” (March 1998). 3 16 USC 1533(a)(1). 4 16 USC 1532(6) (definition of “endangered”) and 1532(20) (definition of “threatened”). 5 16 USC 1533(b)(3). 6 16 USC 1533(a)(3). 2016 by the Center
39、for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.Complying with Section 7 of the Endangered Species Act for Transportation Projects 3 a final rule designating the critical habitat. All critical habitat designations identify specific geographic
40、 areas for that habitat. The statute requires critical habitat to be designated “concurrently” with the listing of a species, but in practice, there often is a delay in designating critical habitat, and there are many listed species for which no critical habitat has as yet been designated. Requireme
41、nt to Develop Recovery Plans. Section 4 of the ESA directs the Services to develop recovery plans for species that have been listed as threatened or endangered. 7A recovery plan, as the name suggests, is intended to help a species recover to the point that protection under the ESA is no longer neede
42、d. A recovery plan is developed through a public notice- and-comment process and typically includes recommendations for action by Federal and state agencies as well as private landowners and other stakeholders. A recovery plans recommendations are not binding, but they are intended to provide a comm
43、on framework for efforts to promote recovery of the species. Binding requirements imposed under other provisions of the ESA may be based, in part, on recommendations in a recovery plan. Prohibition against “Take” of Listed Fish and Wildlife Species. Section 9 of the ESA prohibits any individual from
44、 “taking” any federally listed fish or wildlife species without a permit. 8Practitioners should understand several key points about this prohibition: The definition of “take” is very broad. As defined in the ESA, “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or coll
45、ect, or to attempt to engage in any such conduct.” 9The USFWS has defined the terms “harm” and “harass” as follows:y Harm means “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, f
46、eeding or sheltering.” 10y Harass means “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.” 11
47、Take can result from inadvertent acts, without any intention to cause harm to the species. The term “incidental take” includes “takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant.” 12 Incidental take can be aut
48、horized by the Services. The Services can authorize the incidental take of listed species under two distinct processes:y An “incidental take statement” is issued for federally funded or approved projects through Section 7 consultation. This statement is included in a Biological Opinion issued at the
49、 conclusion of formal consultation.y An “incidental take permit” is issued under Section 10 of the ESA for actions that do not require Section 7 consultation, such as many private development projects. 13 The prohibition against take applies regardless of the projects status. The late discovery of a species, or the new listing of a species, could require an agency to engage in additional Section 7 consultation, even if the environmental review process is complete and project construction is under way. The need for additio
