Free Declaration in Support - District Court of California - California

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CHAPTER 4 - FORMAL CONSULTATION

"Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency...is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined...to be critical.... In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available."
Section 7(a)(2) of the Endangered Species Act

4.1 THE FORMAL CONSULTATION PROCESS Formal consultations determine whether a proposed agency action(s) is likely to jeopardize the continued existence of a listed species (jeopardy) or destroy or adversely modify critical habitat (adverse modification) (Figure 4-1). They also determine the amount or extent of anticipated incidental take in an incidental take statement. Formal consultations perform several other functions: they (1) identify the nature and extent of the effects of Federal (agency) actions on listed species and critical habitat; (2) identify reasonable and prudent alternatives, if any, when an action is likely to result in jeopardy or adverse modification; (3) provide an exception for specified levels of "incidental take" otherwise prohibited under section 9 of the Act; (4) provide mandatory reasonable and prudent measures to minimize the impacts of incidental take to listed species; (5) identify ways the action agencies can help conserve listed species or critical habitat when they undertake an action; and (6) provide an administrative record of effects on species that can help establish the species' environmental baseline in future biological opinions. If an action agency determines a proposed action "may affect" listed species or designated critical habitat, formal consultation is required. (For procedures to be taken when the action agency determines that a proposed action "may jeopardize the continued existence" of a proposed species or "may adversely modify" proposed critical habitat see Chapter 6, Conference). No formal consultation is required if the action agency finds, with the Services written concurrence that the proposed action "may affect, but is not likely to adversely affect" listed species or critical habitat (see Chapter 3, Informal Consultation). This finding can be made only if ALL of the reasonably expected effects of the proposed action will be beneficial, insignificant, or discountable. The action agency must request concurrence, in writing, from the Service for this finding. When action agencies request formal consultation on actions not likely to adversely affect listed species or designated critical habitat, the Services should explain that informal consultation/concurrence letters are adequate to complete section 7 compliance, but that they will enter into formal consultation if the action agency desires.

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Although the formal consultation process must result in a biological opinion reaching either a jeopardy or no jeopardy to listed species (or adverse or no adverse modification of critical habitat) finding, the process is flexible and can be adapted at any point to respond to project modifications agreed to by the action agency or the applicant. Moreover, in locations where numerous actions impact a species, changes in the baseline due to successive effects can be addressed on a continuing basis using biological opinions. Such a series of biological opinions can be used like building blocks to first establish a concern, then warn of potential impacts, and finally result in a jeopardy call. Successive biological opinions can be used to monitor trends in the species' baseline, making predictions of the impacts of future actions more reliable. Extrapolation of a diminishing baseline can help show where future jeopardy thresholds may be reached.

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Figure 4-1. Formal consultation process.

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4.2 INITIATING FORMAL CONSULTATION Action agencies initiate formal consultation through a written request to the Services. For a major construction activity, the action agency is required to submit a biological assessment if listed species or designated critical habitat may be present in the action area. This biological assessment, including a description of the effects of the action, must be submitted within 180 days of receipt of a species list from the Services. The accuracy of the species list needs to be verified if it is more than 90 days old and work on preparing the assessment has not begun. Formal consultation is necessary even when the action is not a major construction activity if a "may affect" situation exists. Although there is no specific timeframe within which the action agency must submit an initiation package, agencies must review their actions "at the earliest possible time" to determine whether formal consultation is required. If a "may affect" situation exists, formal consultation must be initiated promptly. To comply with the section 7 regulations (50 CFR §402.14(c)), the initiation package is submitted with the request for formal consultation and must include all of the following: o o o o a description of the action being considered; a description of the specific area that may be affected by the action; a description of any listed species or critical habitat that may be affected by the action; a description of the manner in which the action may affect any listed species or critical habitat, and an analysis of any cumulative effects; relevant reports, including any environmental impact statements, environmental assessments, biological assessment or other analyses prepared on the proposal; and any other relevant studies or other information available on the action, the affected listed species, or critical habitat.

o

o

The action agency can initiate formal consultation on a number of similar actions within the same geographic area (see section 5.3, Regional or Ecosystem Consultations) or a portion of a comprehensive plan of action (see section 5.5, Incremental Step Consultations), as long as the effects of the entire action are considered. The information provided by an action agency must include the best scientific and commercial data available.

4.3 EVALUATING INITIATION PACKAGES An action agency's package initiating consultation needs to be reviewed promptly by the Services to determine if: (1) all of the information required by the regulations has been provided; 4-4

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and (2) whether the information includes the best scientific and commercial data available. The "other relevant information" requirement gives the Services an opportunity to determine what project-specific information is needed to develop the biological opinion. The action agency is obligated to submit the best data available or "which can be obtained during the consultation ...." (50 CFR §402.14(d)). Although not required by 50 CFR §402.14, a topographic map showing the affected area is a useful addition to the initiation package.

4.4 FORMAL CONSULTATION PROCEDURES (A) Timeframes for Formal Consultation "(1)(A) Consultation under subsection (a)(2) with respect to any agency action shall be concluded within the 90-day period beginning on the date on which initiated or, subject to subparagraph (B), within such other period of time as is mutually agreeable to the Secretary and the Federal agency; (B) in the case of an agency action involving a permit or license applicant, the Secretary and the Federal agency may not mutually agree to conclude consultation within a period exceeding 90 days unless the Secretary, before the close of the 90th day referred to in subparagraph (A) (i) if the consultation period proposed to be agreed to will end before the 150th day after the date on which consultation was initiated, submits to the applicant a written statement setting forth (I) the reasons why a longer period is required; (II) the information that is required to complete the consultation; and (III) the estimated date on which consultation will be completed; or (ii) if the consultation period proposed to be agreed to will end 150 or more days after the date on which consultation was initiated, obtains the consent of the applicant to the extension."
Section 7(b) of the Endangered Species Act

The Act and the section 7 regulations require that formal consultation be concluded within 90 calendar days (all further references to days in this Handbook mean calendar days) of initiation, and the regulations require that the biological opinion be delivered to the action agency within 45 days after the conclusion of formal consultation. The Services strive to issue all biological opinions within the 90-day period; however, the Services may use the additional 45 days when circumstances warrant. Formal consultation is "initiated" on the date the request is received, if the action agency provides all the relevant data required by 50 CFR §402.14(c). If all required data are not initially submitted, then formal consultation is initiated on the date on which all required information has 4-5

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been received. Within 30 working days of receipt of an initiation package, the Services should provide written acknowledgment of the consultation request, advise the action agency of any data deficiencies, and request either the missing data or a written statement that the data are not available. Exhibits 4-1 and 4-2 are examples of letters for situations with and without all required data. This acknowledgement process is optional, but it is highly recommended that either a letter or phone conversation record be placed in the administrative record to document the actual initiation date, particularly if the need to acquire additional data extends the consultation time frame beyond 90 days from the initial receipt of a consultation request. During the initial 90-day formal consultation period, the Services should meet or communicate with the action agency and an applicant, if any, to gather any additional information necessary to conduct the consultation. The 90-day period should be used to: o o assess the status of the species and/or critical habitat involved; verify the scope of the proposed action, which includes identifying the area likely to be affected directly and indirectly by the proposed action, and cumulative effects; identify adverse effects likely to result in jeopardy to the species and/or adverse modification of critical habitat; develop reasonable and prudent alternatives to an action likely to result in jeopardy or adverse modification; identify adverse effects not likely to jeopardize listed species, but which constitute "take" pursuant to section 9 of the Act; develop reasonable and prudent measures, and terms and conditions for the incidental take statement as appropriate; and identify conservation recommendations, as appropriate.

o

o

o

o

o

These actions should be undertaken cooperatively with the action agency and any applicant, thus allowing the Services to develop a better understanding of direct and indirect effects of a proposed action and any cumulative effects in the action area. Action agencies also have the project expertise necessary to help identify reasonable and prudent alternatives, and reasonable and prudent measures. Other interested parties (including the applicant, and affected State and tribal governments) should also be involved in these discussions. However, before contacting other interested parties, contact the action agency to assess the level of direct involvement they will allow other interested parties to assume. These cooperative efforts should be documented for the administrative record.

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The Services ensure the biological opinion, including an incidental take statement, is prepared and delivered within 135 days of initiation of formal consultation. The consultation timeframe cannot be "suspended." If the Services need more time to analyze the data or prepare the final opinion, or the action agency needs time to provide data or review a draft opinion, an extension may be requested by either party. Both the Services and the action agency must agree to the extension. Extensions should not be indefinite, and should specify a schedule for completing the consultation. If an applicant is involved in the project, extension must follow the procedures outlined by section 7(b)(1)(B) of the Act (Exhibit 4-3). In accordance with 50 CFR §402.14(e), a consultation involving an applicant cannot be extended for more than 60 days without the consent of the applicant. No final biological opinion will be issued before the 135th day if the action agency is still reviewing the draft. Once the Services receive comments on the draft, the biological opinion is finalized and delivered to the action agency and applicant, if any. Do not release or distribute the draft biological opinion. If comments on the draft opinion result in major changes or clarifications, the Services can seek an extension. When the Services have not received the action agency's comments by the 125th day, the Services should check with the action agency (by telephone or in writing) to negotiate an extension. If the Services receive the comments of the action agency less than 10 calendar days before the end of the established deadline of 135 days or as otherwise established by an agreed upon extension, then the Services are automatically entitled to a 10 calendar day extension of that deadline to deliver the opinion (50 CFR §402.14 (g)(5)).

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Exhibit 4-1. Example of a letter sent to inform action agencies the Services have received a complete initiation package and will begin formal consultation on a proposed action.

(date)

Dear _________ : This letter acknowledges the U.S. Fish and Wildlife Service's [or National Marine Fisheries Service's] (Service) [date of receipt of letter initiating consultation] receipt of your [date of agency's initiating letter] letter requesting initiation of formal section 7 consultation under the Endangered Species Act. The consultation concerns the possible effects of your proposed [name and location of the action] on [name of listed species and/or critical habitats affected]. All information required of you to initiate consultation was either included with your letter or is otherwise accessible for our consideration and reference. We have assigned log number [log number] to this consultation. Please refer to that number in future correspondence on this consultation. Section 7 allows the Service up to 90 calendar days to conclude formal consultation with your agency and an additional 45 calendar days to prepare our biological opinion (unless we mutually agree to an extension). Therefore, we expect to provide you with our biological opinion no later than [date = 135 calendar days after receipt of initiation request]. As a reminder, the Endangered Species Act requires that after initiation of formal consultation, the Federal action agency may not make any irreversible or irretrievable commitment of resources that limits future options. This practice insures agency actions do not preclude the formulation or implementation of reasonable and prudent alternatives that avoid jeopardizing the continued existence of endangered or threatened species or destroying or modifying their critical habitats. If you have any questions or concerns about this consultation or the consultation process in general, please feel free to contact me or _____(name)_____ of this office at _____(phone)___.

Sincerely yours,

Field Supervisor 4-8

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Exhibit 4-2. Example of a letter sent when an incomplete formal consultation request has been received. (date)

Dear __________ : This letter acknowledges the U.S. Fish and Wildlife Service's [or National Marine Fisheries Service's] (Service) [date of receipt of letter initiating consultation] receipt of your [date of agency's initiating letter] letter requesting initiation of formal section 7 consultation under the Endangered Species Act. The consultation concerns the possible effects of your proposed [name and location of the action] on [name of listed species and/or critical habitats affected]. The Service has not received all of the information necessary to initiate formal consultation on [name of the project] as outlined in the regulations governing interagency consultations (50 CFR §402.14). To complete the initiation package, we will require the following information: 1. [Outline the additional information needs. Follow the general sequence and use language in 50 CFR §402.14(c) to identify each piece of missing information.] 2. etc. The formal consultation process for the project will not begin until we receive all of the information, or a statement explaining why that information cannot be made available. We will notify you when we receive this additional information; our notification letter will also outline the dates within which formal consultation should be complete and the biological opinion delivered on the proposed action. If you have any questions or concerns about this consultation or the consultation process in general, please feel free to call me at ______(phone)_______.

Sincerely yours,

Field Supervisor

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Exhibit 4-3. Example of a request for extension of time. United States Department of the Interior FISH AND WILDLIFE SERVICE 3100 University Blvd. South Suite 120 Jacksonville, Florida 32216 October 30, 1992

FWS Log No: 4-1-92441C Application No: 199201162(LP-CRFO) Dated: August 6, 1992 Applicant: County: Citrus Dear __________ : On August 4, 1992, the Fish and Wildlife Service entered into formal Section 7 consultation on the above referenced public notice. The 90-day consultation period expires November 4, 1992. Because of the difficulties we have encountered in acquiring additional information from the applicant, we request a 60-day extension of the consultation period in accordance with 50 CFR §402.14(e). The Biological Opinion will be issued before January 3, 1993. We have been awaiting necessary information (i.e. plat maps) showing the amount of shoreline owned or controlled by the applicant and information on the number and sizes of existing docks. We requested shoreline information from them in writing on August 13, 1992, and on September 1, 1992, we requested maps showing both shoreline and dock information. We asked for this information again in a telephone conversation with their agent on October 14, 1992. Maps have still not been provided, however, the applicant's wife provided us with a verbal description of the map and the existing docks in a telephone conversation on October 29, 1992. Additional time is needed to review this information and prepare the biological opinion. By copy of this letter, we are notifying the applicant of our request of an extension. We look forward to your response. If you have any questions or concerns about this consultation or the consultation process in general, please feel free to call me at ____(phone)____. Sincerely, Field Supervisor 4-10

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(B) Coordination with other environmental reviews Formal consultation and the Services' preparation of a biological opinion often involve coordination with the preparation of documents mandated by other environmental statutes and regulations, including the Fish and Wildlife Coordination Act (FWCA) and the National Environmental Policy Act (NEPA). Although other environmental reviews may be processed concurrently with a section 7 consultation package, they should be separate entities. The contents of the biological opinion and incidental take statement, including the discussion of effects to listed or proposed species and/or critical habitats, and appropriate measures to avoid or minimize those effects, may be addressed in the Service's comments and recommendations under the FWCA, section 404(m) of the Clean Water Act, NEPA, and other authorities. The section 7 consultation package may be prepared as a stand-alone document under separate signature, or one cover transmittal may be used as long as the consultation package is identified as a separate entity. The Services should assist the action agency or applicant in integrating the formal consultation process into their overall environmental compliance. A major concern of action agencies is often the timing of the consultation process in relation to their other environmental reviews. For example, since the time required to conduct formal section 7 consultation may be longer than the time required to complete preparation of NEPA compliance documents, the action agency should be encouraged to initiate informal consultation prior to NEPA public scoping. Biological assessments may be completed prior to the release of the Draft Environmental Impact Statement (DEIS) and formal consultation, if required, should be initiated prior to or at the time of release of the DEIS. Early inclusion of section 7 in the NEPA process would allow action agencies to share project information earlier and would improve interagency coordination and efficiency. At the time the Final EIS is issued, section 7 consultation should be completed. The Record of Decision should address the results of section 7 consultation.

4.5 COMPONENTS OF A FORMAL CONSULTATION The Services' formal consultation package includes at a minimum a biological opinion and an incidental take statement. The package also may include a conference opinion or notice of a need to confer if proposed species or proposed critical habitats are involved. Conservation recommendations for agency implementation of section 7(a)(1) responsibilities under the Act may be included if relevant to the action under consultation (Figure 4-2). Sample language for various types of formal consultation packages can be found in Appendix B. Following the address and salutation, the biological opinion begins with a standardized introduction and a history of the consultation.

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Introductory Paragraph: This document transmits the (Fish and Wildlife Service's/National Marine Fisheries Service's) (Service) biological opinion based on our review of the proposed (name or designation for the action) located in (County, State, and Marine Area as appropriate), and its effects on (species) in accordance with section 7 of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.). Your (date) request for formal consultation was received on (date). This biological opinion is based on information provided in the (date) biological assessment (or other title), the (date) draft environmental assessment (or environmental impact statement), the (date) project proposal, telephone conversations of (dates) with (names), field investigations, and other sources of information. A complete administrative record of this consultation is on file at (this office/elsewhere). Consultation history The history of the consultation request includes any informal consultation, prior formal consultations on the action, documentation of the date consultation was initiated, a chronology of subsequent requests for additional data, extensions, and other applicable past or current actions. Conclusions reached in earlier informal and formal consultations on the proposed action also may be relevant. If so, such conclusions should be documented in the biological opinion.

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Figure 4-2. Outline of a formal consultation package. [Handbook discussion in brackets] Address Salutation Introductory paragraph [page 4-12] Consultation history [page 4-12] BIOLOGICAL OPINION I. Description of proposed action [page 4-15] II. Status of the species/critical habitat [page 4-19] A. Species/critical habitat description B. Life history C. Population dynamics D. Status and distribution E. Analysis of the species/critical habitat likely to be affected III. Environmental baseline [page 4-22] A. Status of the species within the action area B. Factors affecting species environment within the action area IV. Effects of the action [page 4-23] A. Factors to be considered B. Analyses for effects of the action C. Species' response to a proposed action V. Cumulative effects [page 4-30] VI. Conclusion [page 4-31] VIII.Reasonable and prudent alternatives (as appropriate) [page 4-41] INCIDENTAL TAKE STATEMENT [page 4-43] Introductory paragraph [page 4-46] Amount or extent of take anticipated [page 4-47] Effect of the take [page 4-49] Reasonable and prudent measures (as appropriate) [page 4-50] Terms and conditions [page 4-51] Coordination of incidental take statements with other laws, regulations, and policies [page 4-53] 4-13

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CONFERENCE REPORT/CONFERENCE NOTICE (as appropriate) [page 4-58] CONSERVATION RECOMMENDATIONS (as appropriate) [page 4-59] REINITIATION - CLOSING STATEMENT [page 4-60] LITERATURE CITED [page 4-60]

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(A) Biological opinion "... the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency or applicant in implementing the agency action.
Section 7(b)(3)(A) of the Endangered Species Act

A formal biological opinion consists of a description of the proposed action, status of the species/critical habitat, the environmental baseline, effects of the action, cumulative effects, the Services' conclusion of jeopardy/no jeopardy and/or adverse modification/no adverse modification, and reasonable and prudent alternatives, as appropriate. Description of the proposed action Provide descriptions of the proposed action and the action area (area including all direct and indirect effects). The description of the proposed action does not have to be comprehensive if details can be referenced from NEPA documents or other descriptions provided. However, some small actions may not have complete or formal descriptions of the proposed action, or the project's components may be scattered throughout a biological evaluation (or similar document), draft NEPA documents, draft plans for different portions of the action, miscellaneous policy and guidance documents, letters, telephone records, meeting notes, and other documents. In such cases, a comprehensive project description in the biological opinion is vital to determining the scope of the proposed action. The draft project description may be sent to the action agency for review to eliminate any inaccuracies regarding the scope of the action. This section should summarize enough information for the reader to understand and evaluate the action under consideration in the biological opinion. If the Services determine that the action area differs from that described by the agency or applicant, the Services should discuss their rationale for the change with the agency or applicant. Occasionally, an action agency or an applicant disagrees with the Services' delineation of the action area. This generally occurs when impacts to the species/habitat result from indirect or interrelated/interdependent effects. Reaching agreement on the description of the action area is desirable, but ultimately the Services are responsible for this biological determination (Figures 43, 4-4 and 4-5). Subsequent analyses of the environmental baseline, effects of the action, and levels of incidental take are based upon the action area as determined by the Services. If appropriate, including a transition sentence clarifies why the action area was described in a manner differing from that provided by the action agency: "The Services have described the 4-15

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action area to include.... for reasons that will be explained and discussed in the 'Effects of the proposed action' section of this consultation." Maps and other graphics also may be appropriate.

Figure 4-3. Example of an action area within the species' range.

Figure 4-4. Example of an action area that encompasses the species' range.

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Figure 4-5. Example of an action area involving an effect not at the project site.

A dam on the Platte River in Colorado (project site) also may affect the water regime for whooping crane critical habitat (action area) 150 miles downstream in Nebraska.

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Description of the proposed action (cont'd) Determining the action area relates only to the action proposed by the action agency. Even if the applicant has an alternative not requiring Federal permits or funding, this does not enter into the Services' analyses. Such alternatives can be discussed in the reasonable and prudent alternatives or conservation recommendations if the alternative is within the agency's jurisdiction. The action area should be determined based on consideration of all direct and indirect effects of the proposed agency action [50 CFR 402.02 and 402.14(h)(2)]. For example (Figure 4-6), if the proposed action is a wetland fill (requiring a federal permit) to accommodate access to a proposed development (the actual area of impact to the species), then the development is included in the action area. Whether or not the applicant can build a road that does not impact the wetland, the analysis of effects of the action still encompasses the proposed development. If the applicant is seriously considering the alternative with no Federal nexus, the applicant should be advised of the need for acquiring a section 10(a)(1)(B) permit before proceeding with development for actions that will result in a taking. Figure 4-6. Determining the action area.

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Describing the proposed action also includes any conservation measures proposed as part of the action. When used in the context of the Act, "conservation measures" represent actions pledged in the project description that the action agency or the applicant will implement to further the recovery of the species under review. Such measures may be tasks recommended in the species' recovery plan, should be closely related to the action, and should be achievable within the authority of the action agency or applicant. For example, degraded habitat acquired by the applicant adjacent to the area to be developed may be improved as a conservation measure prior to project completion so that individuals depending on the habitat to be destroyed by development can be relocated or allowed to relocate on the improved site. In this example, the activity carries out a recognized conservation need for the species. The beneficial effects of the conservation measure are taken into consideration for both jeopardy and incidental take analyses. However, remember that the objective of the incidental take analysis under section 7 is minimization, not mitigation. If the conservation measure only protects offsite habitat and does not minimize impacts to affected individuals in the action area, the beneficial effects of the conservation measure are irrelevant to the incidental take analysis. Discussion of the limits for minimization under section 7, and distinction from mitigation allowances under section 10, can be found in Section 2.1(C) of this handbook. Since conservation measures are part of the proposed action, their implementation is required under the terms of the consultation. However, conservation recommendations (which may be provided at the end of the consultation package) are discretionary suggestions made by the Services for consideration by the agency or applicant. Status of the species/critical habitat This section presents the biological or ecological information relevant to formulating the biological opinion. Appropriate information on the species' life history, its habitat and distribution, and other data on factors necessary to its survival, is included to provide background for analyses in later sections. Note that when designated critical habitat is affected a companion analysis is done for that habitat. This analysis documents the effects of all past human and natural activities or events that have led to the current status of the species. This information is presented in listing documents, and refined in recovery plans. When the Services' review focuses on the effects of the action on a discrete recovery unit or designated critical habitat unit, this section of the biological opinion describes the status of that unit and its significance to the species as listed or to the designated critical habitat. For example, if the opinion focuses on the Chesapeake Bay recovery unit of the bald eagle, the status of that recovery unit is discussed including the recovery unit's role in both the survival and recovery of the species as listed.

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The following types of information should be considered for inclusion in the biological opinion. All information may not be available for all species. However, Services biologists should use the best available scientific or commercial data. Pertinent information can be gathered from listing rules, including critical habitat designations, recovery plans, and published and unpublished studies done on the species. Once this section is developed for a given species, it can be used in successive biological opinions. Modification is necessary only when new information is developed. a. Species/critical habitat description This section should briefly describe the species and/or critical habitat, discussing the current legal status of the species, including listing history, and current known range of the listed species found in the action area. For critical habitat, the discussion should include the extent of designated critical habitat, the primary constituent elements identified in the final rule, and any activities which have been identified as having the potential for altering the primary constituent elements. b. Life history A large number of life history variables are relevant to jeopardy analyses. These variables help determine a species' population size, age distribution, sensitivity to a proposed action's effects, ability to recover from adverse effects, and ability to recolonize areas from which it has been extirpated. Relevant life history variables include, but are not limited to: longevity; age distribution; age to maturity; reproductive strategy (for example, the number of times mature individuals reproduce in a lifetime, or whether mature individuals reproduce sexually or asexually); recruitment; seasonal distribution patterns; biogeography; food habits; niche; life cycle; hosts and symbionts; predators and competitors; and disease factors. c. Population dynamics The size of a population and its natural variance over time are important characteristics affecting the species' response to disturbance factors. For many species, there is only cursory natural history or status survey information available. However, detailed demographic analyses have recently been undertaken for some species. The level of discussion in this section will depend upon the detail and quality of the information available. Population size: This species characteristic is often emphasized in consultations. Reduction in population size may jeopardize the continued existence of threatened or endangered species because the longer a species remains at low population levels, the greater the probability of extinction from chance events, inbreeding depression, or additional environmental disturbance. However, although population size has a clear relationship to a species' extinction probability, it can be less important than population variability and should be used carefully. How long a 4-20

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species will persist before extinction depends on more than population size. Large populations may not protect a species from extinction in the face of extreme environmental disturbance. Population variability: Fluctuations in a species' population over time can affect significantly the probability of its extinction. Population variability is affected by several characteristics of a species' life history: unstable age distributions and reproductive rates; widely variable mortalities resulting from unstable food resources or predation; population density; sex ratios; recolonization rates; and genetic viability. As a population fluctuates, one or more factors can lead to a chance extinction, e.g., irreversibly lowering population size to a point where it can no longer recover. Consequently, an action increasing a species' population variability may affect the continued existence of the species more significantly than a reduction in population size. Population stability: Population stability is the ability of a species' population to resist change or dramatic fluctuations over time. It directly affects a species' sensitivity to the adverse effects of a proposed action. Even-age distribution, high reproductive rates, or long life spans with multiple reproductive periods can stabilize a population. d. Status and distribution Information on the status and distribution of listed species and designated critical habitat helps establish the environmental basis for a consultation. The Federal Register Notice with the final rule listing a species or designating critical habitat is a good starting point for gathering this type of information. The following factors should provide a reasonable environmental setting within which to consider the action and cumulative effects for the consultation. Reasons for listing: The reasons for listing a species or designating critical habitat are important considerations. For example, a species listed because of commercial exploitation may be less sensitive to habitat loss than a species listed because of habitat loss. Rangewide trend: Many listed species are declining throughout their range, therefore the overall population trend of a species has implications for new proposals that could result in additional effects on the species. The trends of the remaining populations of listed species form the basis for evaluating the effects of a proposed action on that species. New threats: Often, factors not considered when a species was first listed can threaten its continued existence, and must be considered when establishing the environmental baseline. For example, the zebra mussel (Dreissena polymorpha), an exotic species threatening native mussel fauna throughout its range, wasn't considered when most native mussels were listed.

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e. Analysis of the species/critical habitat likely to be affected This section summarizes the previous discussion in Status of the species/ critical habitat and identifies those species or designated critical habitat likely to be adversely affected by the proposed action, which will be considered further in the remaining sections of the biological opinion. If the action agency requests consultation on a beneficial action, that will be noted here. Other listed species/designated critical habitat present in the project area are also listed here along with the reasons they are not likely to be adversely affected. Since the Services concur with the action agency's determination of "is not likely to adversely affect," a statement that those species will not be considered further in the consultation should be included. Environmental baseline This section is an analysis of the effects of past and ongoing human and natural factors leading to the current status of the species, its habitat (including designated critical habitat), and ecosystem, within the action area. The environmental baseline is a "snapshot" of a species' health at a specified point in time. It does not include the effects of the action under review in the consultation. a. Status of the species within the action area Unless the species' range is wholly contained within the action area, this analysis is a subset of the preceding rangewide status discussion. The purpose is to analyze the effects on the species and/or critical habitat at the action level. For example, the following issues are considered: o the percent or amount of the species range or designated critical habitat in the action area; whether the effect is quantitative, qualitative, or both; the distribution of the affected and unaffected habitat; and if critical habitat will be impacted, the effect on the constituent elements.

o o o

b. Factors affecting species environment within the action area This analysis describes factors affecting the environment of the species or critical habitat in the action area (Figure 4-3). The baseline includes State, tribal, local, and private actions already affecting the species or that will occur contemporaneously with the consultation in progress. Unrelated Federal actions affecting the same species or critical habitat that have completed formal or informal consultation are also part of the environmental baseline, as are Federal and other actions within the action area that may benefit listed species or critical habitat. 4-22

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An agency action can be removed from the environmental baseline analysis under any of the following conditions: o an action agency notifies the Services in writing that a previously proposed action will not be implemented; a biological opinion for the proposed action (not an ongoing action) is no longer valid because reinitiation of consultation is required and the action agency has been so informed in writing by the Services, or has requested that the Services reinitiate consultation; or alternatives have been implemented that remove all adverse effects.

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Effects of the action This section includes an analysis of the direct and indirect effects of the proposed action on the species and/or critical habitat and its interrelated and interdependent activities. a. Factors to be considered Proximity of the action: to the species, management units, or designated critical habitat units. Distribution: geographic areas where the disturbance occurs (e.g., may be several small or one large area). Timing: relationship to sensitive periods of a species' lifecycle. Nature of the effect: effects of the action on elements of a species' lifecycle, population size or variability, or distribution; or on the primary constituent elements of the critical habitat, including direct and indirect effects. Duration: The effects of a proposed action on listed species or critical habitat depend largely on the duration of its effects. Three potential categories of effects are: (1) a short-term event whose effects are relaxed almost immediately (pulse effect), (2) a sustained, long-term, or chronic event whose effects are not relaxed (press effect), or (3) a permanent event that sets a new threshold for some feature of a species' environment (threshold effect). For many species, a proposed action producing a single, short-term effect is less likely to jeopardize the continued existence of a species than a long-term chronic event or the permanent alteration of a species' habitat. Disturbance frequency: the mean number of events per unit of time affects a species differently depending on its recovery rate. If the disturbance frequency is less than the species' recovery rate, the species might persist in the face of the disturbance (Figures 4-7a-b). If the disturbance 4-23

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frequency equals the species' recovery rate, the species becomes more sensitive to the effects of other disturbances (Figure 4-7c). If the disturbance frequency is greater than a species' recovery rate, the species will be unable to recover between disturbances (Figure 4-7d). Disturbance frequency is an important consideration when evaluating the accumulating effects of proposed actions on listed species and/or designated critical habitat, particularly when it is combined with information on a species' recovery rate.

Figure 4-7. Effects of the disturbance. (figures modified from Trudghill 1988)

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Disturbance intensity: the effect of the disturbance on a population or species as a function of the population or species' state after the disturbance. For example, a disturbance reducing the size of a population or critical habitat unit by 40 percent is more intense than a disturbance reducing population or unit size by 10 percent. Disturbance severity: the effect of a disturbance on a population or species as a function of recovery rate. The longer the recovery rate, the more severe the disturbance. For example, a disturbance from which a species or habitat takes 10 years to recover is more severe than a disturbance requiring 2 years for recovery. A severe disturbance makes a population or species more susceptible to the effects of multiple actions. b. Analyses for effects of the action Sufficient description of the proposed action should be included so that the subsequent analysis of effects and the scope of the opinion are clear. If the analyses for this section determine that some individuals of a listed animal might be "taken" as a direct or indirect result of the proposed action, that information is included in the incidental take statement. Beneficial effects: are those effects of an action that are wholly positive, without any adverse effects, on a listed species or designated critical habitat. Determination that an action will have beneficial effects is a "may affect" situation (see section 3.5). However, since there are no adverse effects, formal consultation is not required. Biological opinions may discuss beneficial effects if the applicant requests it, or if a biological assessment considers numerous species, some with adverse effects, and one or more with beneficial effects. Example: The National Park Service proposes to modify an existing rock climbing management plan that allows climbing in historic peregrine falcon nesting areas. The new plan restricts climbing activities to areas outside of a zone 1/4 mile wide on either side of active peregrine falcon aeries during the breeding season. This protects the birds from human disturbance and eliminates take that could occur if an adult was flushed from an aerie with eggs or young needing incubation or brooding to survive. Therefore, the effects are wholly beneficial. Direct effects: the direct or immediate effects of the project on the species or its habitat, e.g., driving an off road vehicle through the nesting habitat of the piping plover may destroy its ground nest; building a housing unit may destroy the habitat of an endangered mouse. Direct effects result from the agency action including the effects of interrelated actions and interdependent actions (see definitions below for clarification). Future Federal actions that are not a direct effect of the action under consideration (and not included in the environmental baseline or treated as indirect effects) are not considered in this biological opinion.

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Interrelated and interdependent actions: Effects of the action under consultation are analyzed together with the effects of other activities that are interrelated to, or interdependent with, that action. An interrelated activity is an activity that is part of the proposed action and depends on the proposed action for its justification. An interdependent activity is an activity that has no independent utility apart from the action under consultation. (Note: the regulations refer to the action under consultation as the "larger action" [50 CFR § 402.02]). In fact, the use of the term "larger" has proven to be confusing when applied in the case of a modification to an existing project. Instead of keeping the inquiry on whether other activities are interrelated to or interdependent with the modification, it has unintentionally and inappropriately shifted the focus to an inquiry on whether the modification itself is interrelated to or interdependent with the "larger" action or project. To better understand how the interdependent or interrelated analysis should work, see the detailed examples below. As a practical matter, the analysis of whether other activities are interrelated to, or interdependent with, the proposed action under consultation should be conducted by applying a "but for" test. The biologist should ask whether another activity in question would occur "but for" the proposed action under consultation. If the answer is "no," that the activity in question would not occur but for the proposed action, then the activity is interrelated or interdependent and should be analyzed with the effects of the action. If the answer is "yes," that the activity in question would occur regardless of the proposed action under consultation, then the activity is not interdependent or interrelated and would not be analyzed with the effects of the action under consultation. There will be times when the answer to this question will not be apparent on its face. The biologist should ask follow-up questions to the relevant parties to determine the relationship of the activity to the proposed action under consultation. It is important to remember that interrelated or interdependent activities are measured against the proposed action. That is, the relevant inquiry is whether the activity in question should be analyzed with the effects of the action under consultation because it is interrelated to, or interdependent with, the proposed action. Be careful not to reverse the analysis by analyzing the relationship of the proposed action against the other activity. For example, as cited below, if the proposed action is the addition of a second turbine to an existing dam, the question is whether the dam (the other activity) is interrelated to or interdependent with the proposed action (the addition of the turbine), not the reverse. Example: The Corps of Engineers requests consultation for construction of a dam which requires a section 404 permit. The dam will provide water to private irrigation canals that will come on line once the dam is completed. The private irrigation canals are interrelated to the proposed dam and must be considered in a biological opinion for the larger water development project since they would not be in existence "but for" the presence of the proposed dam under consultation. Similarly, a power turbine to be constructed concurrently with the dam cannot function and has no independent utility "but for" the dam and is, therefore, interrelated with the project. Thus the effects of this turbine on fish passage and water quality are to be considered in the biological opinion on the proposed dam.

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Ten years after construction of the dam, a federal permit is needed to add a second turbine to the dam to increase power generation. The addition of the turbine, as the proposed action under consultation, is now the "larger action" against which the "but for" test for interrelated or interdependent effects would be applied. The pre-existing dam has independent utility without the new turbine and therefore is not interrelated to, or interdependent with, the proposed action. Ongoing effects of the existing dam are already included in the Environmental Baseline and would not be considered an effect of the proposed action under consultation. Activities which would be interdependent and interrelated to the proposed turbine could include construction of new power lines or conversion of natural habitat if the additional power capacity allowed for the development of a manufacturing facility that was dependent upon the new power grid. Later, a new federal safety law requires the dam operator to construct a fuse plug on an existing spillway which improves response to emergency flood conditions. Construction of the fuse plug is now the proposed "larger action." Again, the existing dam is not interdependent or interrelated to the proposed fuse plug because it does not depend upon the proposed action for its existence. That is, the test is not whether the fuse plug in some way assists or facilitates in the continued operation of the pre-existing project, but instead whether the water project could not exist "but for" the fuse plug. Because the answer is that the project would exist independent of the fuse plug, the operation of that project is not interrelated or interdependent. Accordingly, the biologist would not consider the effects of the dam to be effects of the "larger" action under consultation (the proposed construction of the fuse plug). However, if the fuse plug would allow a greater flow of water through the spillway, thereby requiring the operator to increase the depth of the spillway channel and armor it with concrete, such activities would be interrelated to the proposed action. Example: Another example would be a proposed agency action to enlarge the water supply storage capacity of an existing flood control reservoir. An existing water supply system into which the stored water will be released does not depend on the proposed action, and hence is not interrelated. When one or more Federal actions are determined by the Services to be interdependent or interrelated to the proposed action, or are indirect effects of the proposed action, they are combined in the consultation and a lead agency is determined for the overall consultation. Indirect effects: are caused by or result from the proposed action, are later in time, and are reasonably certain to occur, e.g., predators may follow ORV tracks into piping plover nesting habitat and destroy nests; the people moving into the housing unit bring cats that prey on the mice left in the adjacent habitat. Indirect effects may occur outside of the area directly affected by the action.

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Indirect effects may include other Federal actions that have not undergone section 7 consultation but will result from the action under consideration. In order to treat these actions as indirect effects in the biological opinion, they must be reasonably certain to occur, as evidenced by appropriations, work plans, permits issued, or budgeting; they follow a pattern of activity undertaken by the agency in the action area; or they are a logical extension of the proposed action. Non-Federal activities with indirect effects can also be predicted, particularly for ongoing projects that have a past pattern of use that is anticipated to continue. Example: A very complex example of indirect effects arose in determining effects of renewing water service contracts from a large reclamation project (Friant Unit of the Central Valley Project) in the San Joaquin Basin of California. Upon checking with other Federal and State agencies, the FWS determined that the distribution of water for agricultural use on the higher east side of the Valley provided a hydrologic head maintaining the groundwater table on the west side of the Valley at a level making it economical to pump. As a result, occupied habitats for several species on the west side of the Valley were being destroyed because the pumped water could be used to convert this land to agriculture. The California Department of Water Resources provided trend data indicating a continuing conversion of habitat of 10,000 to 30,000 acres per year. These data were used to assess future nonFederal effects of the project. Several court cases provide examples of indirect effects of a proposed action. In National Wildlife Federation v. Coleman, 529 F.2d 359 (5th Cir.), cert. denied, 429 U.S. 979 (1976), the court ruled that indirect effects of private development resulting from proposed construction of highway interchanges had to be considered as impacts of a proposed Federal highway project, even though the private development had not been planned at the time the highway project was proposed. In another case, Riverside Irrigation District v. Andrews, 758 F.2d 508 (10th Cir. 1985), the court ruled that the Corps of Engineers must consider the effects of consumptive water uses made possible by the proposed dam on critical habitat for whooping cranes 150 miles away, in addition to the local impacts of placing fill for the dam. Determining the effect of ongoing water projects: Under the Federal Power Act, as amended by the Electric Consumers Protection Act of 1986, the Federal Energy Regulatory Commission (FERC) issues new licenses for existing hydropower projects as the original licenses expire. FERC has determined that these new licenses represent a new commitment of resources. Therefore, a section 7 analysis of the project's effects on listed species is done in the same way as new projects. When analyzing these water projects, as well as water contract renewals for Bureau of Reclamation (Bureau) programs and ongoing discretionary operations of Bureau and Corps of Engineers water facilities, use the same approach as for other types of section 7 analyses.

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The total effects of all past activities, including effects of the past operation of the project, current non-Federal activities, and Federal projects with completed section 7 consultations, form the environmental baseline; To this baseline, future direct and indirect impacts of the operation over the new license or contract period, including effects of any interrelated and interdependent act