Endangered Species Act Overview: Section 7 Process and Biological Opinion West Coast Region U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 1 Erin Strange Section 7 Coordinator - California Central Valley Office Jana Affonso Deputy Division Chief – Pacific Southwest Region, Ecological Services California WaterFix Aquatic Science Peer Review April 5, 2016 U.S. Fish and Wildlife Service Pacific Southwest Region

Today’s Objectives U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 2 Cover all sections of ESA Cover ESA section 7 consultation process Discuss components of a Biological Opinion Breakdown the Biological Opinion Effects of the Action Analytical Approach

The Endangered Species Act Focuses on protecting species in their natural environments Gives joint authority to NOAA and FWS U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 3

Endangered Species: “any species which is in danger of extinction throughout all or a significant portion of its range…” Threatened Species: “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” - §1532. Definitions (ESA §3) Spring-run Chinook salmon Photo by J. Icanberry Critical Habitat: Specific geographic areas with physical and biological features essential to the conservation of a listed species Humpback whale Photo by S. Wilkin U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 4

Conserve, conserving, conservation use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary, i.e., the species is recovered in accordance with §402.2 of the chapter. - §1532. Definitions (ESA §3) Updated 81 FR 7414 (Feb 11, 2016) Key Definitions Sea turtle Photo by R. Bush U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 5

The Endangered Species Act of 1973 Sec. 2. Findings, purposes, and policy. Sec. 3. Definitions. Sec. 4. Determination of endangered species and threatened species. Sec. 5. Land acquisition. Sec. 6. Cooperation with the States. Sec. 7. Interagency cooperation. Sec. 8. International cooperation. Sec. 9. Prohibited acts. Sec. 10. Exceptions. Sec. 11. Penalties and enforcement. Sec. 12. Endangered plants. Sec. 13. Conforming amendments. Sec. 14. Repealer. Sec. 15. Authorization of appropriations. Sec. 16. Effective date. Sec. 17. Marine Mammal Protection Act of 1972 Sec. 18. Annual cost analysis by FWS U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 6

Purposes of the Endangered Species Act provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, provide a program for the conservation of such endangered species and threatened species… - Section 2(b) of the Endangered Species Act U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 7

Policy of the Endangered Species Act All Federal departments and agencies shall seek to conserve endangered species and threatened species use their authorities in furtherance of the purposes of this Act - Section 2(c) of the Endangered Species Act U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 8

Listing and Recovery: Section 4 Prescribes the determinations the Services must make and the procedures the Services must follow to list a species or to designate critical habitat Prescribes the procedures for recovery and monitoring Provisions particularly relevant from the perspective of section 7 Section 4(d): protective regulations for threatened species Section 4(f): recovery planning Chinook salmon U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 9

Section 4(f) Recovery Plans Species background and life history Recovery objectives and delisting criteria Threats assessments (aka limiting factors, stressors) Recovery strategies Research, monitoring, evaluation priorities U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 10

Section 7(a)(1) Federal Agencies shall use their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species e.g., Conservation Recommendations – help Federal agencies meet their 7(a)(1) responsibilities U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 11

Section 7(a)(2) Each Federal Agency shall 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 U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 12

Section 7(d) Limitation on commitment of resources After initiation of consultation, the Federal agency and applicant… “ shall not make any irreversible or irretrievable commitment of resources …which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures…” unless such agency has been granted an exemption by the Endangered Species Committee U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 13

Section 9 Prohibited Acts Section 9(a)(1)(B): It is unlawful for any person subject to the jurisdiction of the United States to take any such species …. What is Take? to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct - ESA §3(19) Canada lynx USFWS Photo U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 14

What is “Harm”? an act which actually kills or injures fish or wildlife may include significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or sheltering. 64 FR (November 8, 1999) Examples of activities that may constitute take. Establish causal link between habitat modification and injury or death. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 15

Section 10 Exceptions 10(a)(1)(A) For scientific purposes or to enhance the propagation or survival 10(a)(1)(B) Incidental take permits (requires Habitat Conservation Plans) 10(j) Experimental populations Any population that is established to further the conservation of an endangered or threatened species and Is wholly separate geographically from non-experimental populations of the same species U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 16

Section 7(a)(2) Consultation Process West Coast Region U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 17 U.S. Fish and Wildlife Service Pacific Southwest Region

U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 18

Not Likely to Adversely Affect Effects on listed species are expected to be discountable, insignificant, or completely beneficial. Beneficial effects are contemporaneous positive effects without any adverse effects to the species Insignificant effects relate to the size of impact and should never reach the scale where take occurs Discountable effects are those extremely unlikely to occur - FWS & NMFS 1998 Section 7 Handbook U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 19

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Consultation Initiation Packages U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page CFR (c)

The Federal agency requesting formal consultation shall provide the Service with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat. 50 CFR §402.14(d) U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 22 Sufficient information to initiate consultation

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Consultation Timelines Consultation does not start until the initiation package is complete. The Services determine when the initiation package is complete and consultation begins. The Services’ request for additional information needed to begin formal consultation should be in writing, specific, and refer to (c). U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 24

Consultation Timelines Preconsultation technical assistance (PCTA) Concurrence Request 30 days to respond (Policy) Formal Consultation Initiated 90 days to complete consultation 45 days to issue biop U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 25

Section 7 consultations: Roles of Federal Action Agency, Applicants, NMFS and USFWS U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 26

Must provide best scientific and commercial data available Should be an active participant in the consultation Has requirements after opinion is issued May designate non-Federal Representative Request species lists, prepare BA, provide information Role of the Action Agency U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 27

If a biological assessment is prepared by the designated non- Federal representative, the Federal agency shall furnish guidance and supervision and shall independently review and evaluate the scope and contents of the biological assessment. “The ultimate responsibility for compliance with section 7 remains with the Federal agency.” (50 CFR ) Designated non-Federal Representative U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 28

any person who requires formal approval or authorization from a Federal agency before conducting an action Federal agency determines an applicant’s status during consultation. Applicants may: Submit information for consideration during consultation Review and comment on a draft opinion through the Federal agency Entitled to the final consultation document Apply for exemption from section 7(a)(2) process Responsible for complying with terms and conditions and monitoring & reporting Approves request for >60 d extension of biop deadline Role of Applicants U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 29

Advise Federal agencies through consultations to identify and help resolve conflicts between listed species and habitat and proposed actions Must use best scientific and commercial data available Active participant in the consultation Advise on regulatory, policy, and biological information Discuss the potential effects of the action on listed species or critical habitat Discuss measures to reduce or avoid those effects Role of NMFS/FWS U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 30

Our Objectives in Section 7 Consultation Help Federal agencies insure that any action they authorize, fund, or carry out is not likely to appreciably reduce the likelihood of survival and recovery of endangered or threatened species in the wild not likely to reduce the conservation value of designated critical habitat for the recovery of endangered or threatened species Produce consultations that are legally-defensible because they are transparent “objective” replicable evidence-based U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 31

Biological Opinions U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 32

Anatomy of Joint NMFS-FWS Biological Opinions U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 33

Anatomy of a NMFS/USFWS Joint Biological Opinion 1. INTRODUCTION 1.1 Background 1.2 Consultation History 1.3 Proposed Action 1.4 Action Area 2. ENDANGERED SPECIES ACT: BIOLOGICAL OPINION AND INCIDENTAL TAKE STATEMENT 2.1 Approach to the Analysis 2.2 Rangewide Status of the Species and Critical Habitat 2.3 Environmental Baseline 2.4 Effects of the Action on Species and Designated Critical Habitat 2.5 Cumulative Effects 2.6 Integration and Synthesis 2.7 Conclusion 2.8. Incidental Take Statement Amount or Extent of Take Effect of the Take Reasonable and Prudent Measures and Terms and Conditions 2.9 Conservation Recommendations 2.10 Reinitiation of Consultation U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 34

Consultation History The Consultation History is designed to identify major benchmarks of a consultation: When consultation was initiated Why consultation was initiated If there was an informal consultation/technical assistance If there were any requests for additional information; project modifications Applicant involvement If drafts were shared with the action agency or applicant Tribal coordination U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 35

Description of the Proposed Action This section needs details about: Which Federal agency or agencies are taking the Action The name of the Applicant(s), if any The purpose of the Action The statutory authority for the Action Where the Action will occur How long the Action is expected to occur The elements of the Action that are relevant to an analysis of effects (e.g., conservation measures) Interrelated and interdependent activities U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 36

Description of the Proposed Action Action Area We identify the location of the action area at the end of the Description of the proposed action section. We explain how we determined the extent of the action area. Encompasses the entire area of effects. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 37

Approach to the Assessment (Analytical Approach) Designed to explain: How the parts of a BiOp will work together to support our conclusion Our assessment model (exposure, response, risk) The evidence available for the assessment How we analyzed or weighed the evidence Assumptions we made to overcome limitations in the evidence available Uncertainties U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 38

Rangewide Status of the Species This section should identify the population structure (if any) threats, including climate change recovery goals/criteria (if available) Conveys extinction risk of the species: why it is listed as threatened or endangered U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 39

Status of Critical Habitat Discuss the entire critical habitat area in terms of the physical and biological features that are essential for conservation of the species. BA Recovery Plans Journal articles, agency reports, etc. Identify PCEs/physical and biological features U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 40

Environmental Baseline Includes The past and present impacts of all Federal, State, or private actions and other human activities in the action area, The anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and The impact of State or private actions which are contemporaneous with the consultation in process 50 CFR U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 41

Environmental Baseline not a list of activities represents the consequence of exposing listed resources to the direct and indirect effects of those activities focus on what those activities mean for endangered and threatened species and designated critical habitat U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 42

Effects Analysis Section: Exposure-Response-Risk Consider the following subsections: Listed Species Exposure of listed species Response of listed species Risk analysis for individuals in the action area Critical Habitat Exposure of physical and biological features Response of physical and biological features Risk to the value of those features for species conservation in the action area U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 43

Exposure and Response Analysis This section of a BiOp: identifies how many individuals are likely to be exposed to a particular stressor or suite of stressors explains the intensity and duration of any exposure and how frequently individuals would be exposed may present the analyses in terms of “exposure events” summarizes the literature available to estimate how individuals are likely to response to exposure events established what our analysis considers prior experience with a stressor (e.g., monitoring reports from analogous actions the body of commercial and scientific knowledge available to the Services, the Action Agency, and the Applicant (if applicable) U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 44

Effects Analysis- Key Points Clearly identifies assumptions and data limitations Clear relationship between exposure and response Exposure is co-occurrence, in space and time, between listed resources and effects Little can be done to alter how resources respond to exposure, so most protective efforts can only prevent or reduce exposure U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 45

Risk to the Species Risk to populations ESUs/DPSs (species) Consider survival and recovery Recovery Plans! U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 46 Identify the Action Area Identify the “Action” Jeopardy/ Adverse Mod Conclusion Assess the Species/CH Exposure Deconstruct the Action Environmental Baseline Assess Risk to Individuals/ CH in action area Assess Risk to Populations Assess Risk to Species/CH Assess the Species/CH Response Cumulative Effects Species/CH Status

Risk to Critical Habitat Joint FWS & NMFS rule (81 FR 7214; published Feb.11, 2016; effective March 14, 2016) We need to consider survival and recovery of a listed species in our adverse modification determination “Determinations on destruction or adverse modification are based on critical habitat as a whole, not just on the areas where the action takes place or has direct impacts.” Small impacts can cause adverse modification if those impacts appreciably diminish the value of critical habitat for the conservation of a listed species Focus of analysis is on ‘‘the value of critical habitat for the conservation of a listed species’’ U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 47 Identify the Action Area Identify the “Action” Jeopardy/ Adverse Mod Conclusion Assess the Species/CH Exposure Deconstruct the Action Environmental Baseline Assess Risk to Individuals/ CH in action area Assess Risk to Populations Assess Risk to Species/CH Assess the Species/CH Response Cumulative Effects Species/CH Status

Risk Analysis Describes how we integrated exposure and response to estimate the consequences of the action to listed species and critical habitat in the action area. Describes the consequences for listed species and critical habitat in the action area. ***Crucial step in helping us describe the impacts at the ESU/DPS and critical habitat designation level in the Integration and Synthesis section. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 48

Cumulative Effects The effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation Our cumulative effects analyses are designed to anticipate the direct and indirect effects of non-federal activities that are reasonably certain to occur in an Action Area U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 49

Integration and Synthesis Final step in risk assessment. Presents the reasoning and evidence that supports our conclusion. This section should allow readers to clearly understand how conclusion “considered” and was based on: The status of the species and critical habitat Environmental baseline The effects of the action, and Cumulative effects U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 50

Conclusion: Jeopardy - Adverse Modification U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 51 "Jeopardize the continued existence of" means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 50 CFR “Determinations on destruction or adverse modification are based on critical habitat as a whole, not just on the areas where the action takes place or has direct impacts.” Small impacts can cause adverse modification if those impacts appreciably diminish the value of critical habitat for the conservation of a listed species

Incidental Take Statement Exempts incidental take from take prohibitions if action complies with terms and conditions. “Take” statements must outline the amount or extent of take that is expected to occur from the proposed action “Take” statements must provide reasonable and prudent measures (RPMs) that minimize the effects of the take on T/E species “Take” statements must provide terms and conditions (T&Cs) RPMs and T&Cs may only make minor changes to an action Joint FWS & NMFS Final Rule on ITS (80 FR 26832; May 11, 2015) U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 52

Amount or Extent of “Take” For each species that is likely to be taken, describes: (1) the type(s) of incidental take, (2) the life stage(s) to be taken, and (3) how the incidental take would occur (a concise summary). Uses number of individuals as amount of take, when doing so is practicable and measureable. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 53

Use of surrogates in an ITS To describe take where an actual number is not practicable, include: 1.an explanation as to why quantifying the actual number of individuals is not practicable; 2.an identified take surrogate that serves the same role as an actual number (i.e., it is quantifiable and may be monitored, serving its intended role as a clear reinitiation trigger; e.g., a measure of modified habitat); U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 54

Use of surrogates in an ITS 3.an explanation of the rational connection between the surrogate and the take of the species; and, 4.a surrogate that is not coextensive with the proposed action itself, or – if a non-coextensive surrogate is not available, an explanation as to why the surrogate nevertheless functions as an effective reinitiation trigger prior to completion of the action. Can use a single surrogate for more than one type of take if a rational connection between the surrogate and those types of take can be explained. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 55

Amount or Extent of “Take” Take identified in this section is consistent with the adverse effects described in the analysis of the opinion Does not introduce a new analysis or estimation that was not previously reported in the biological opinion; e.g., rationale for surrogates for take are supported by information previously presented in the effects analysis. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 56

Effect of Take Consider effect of take in jeopardy/adverse modification determination… “In the biological opinion, NMFS determined that the amount or extent of anticipated take, coupled with other effects of the proposed action, is not likely to have resulted in jeopardy to the species or destruction or adverse modification of critical habitat.” U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 57

Reasonable and Prudent Measures Reasonable and prudent measures and the implementing terms and conditions are actions intended to minimize the impact of incidental take. Those conditions are conveyed to the action agency in the form of an incidental take statement (ITS), are non-discretionary, and must be undertaken by the agency so that they become binding conditions of any grant or permit issued to an applicant for the exemption in section 7(o)(2) to apply. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 58

Monitoring The Services require monitoring during project implementation to ensure that take is not exceeded: “In order to monitor the impacts of incidental take, the Federal agency or any applicant must report the progress of the action and its impact on the species to the Services as specified in the incidental take statement”. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 59

Minor Change Rule “Reasonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes” 50 CFR (i)(2) U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 60

Jeopardy/Adverse Mod Determination Services will provide at least one Reasonable and Prudent Alternative to the Proposed Action, unless there is no feasible alternative. Typically, Services will work with the Federal action agency (and applicant) to do this. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 61

Reasonable and Prudent Alternatives These must avoid likelihood of jeopardy They must be implemented in a manner consistent with the intended purpose of the action They must be consistent with the scope of the action agency’s legal authority and jurisdiction They must be economically and technically feasible U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 62

Conservation Recommendations Discretionary measures to minimize or avoid adverse effects of a proposed action on listed species or critical habitat or regarding the development of information 50 CFR U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 63

Reinitiation of Consultation 1.If the amount or extent of taking specified in the incidental take statement is exceeded; 2.If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; 3.If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the BiOp; or 4.If a new species is listed or critical habitat designated that may be affected by the identified action. U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 64

Climate Change Rangewide Status of the Species – status review Environmental Baseline – current influence Effects of the Action – amplification Cumulative Effects - ?? Integration and Synthesis – aggregate, synergistic Incidental Take Statement – reinitiation trigger, uncertainty Conservation Recommendations – long-terming planning and permitting U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 65

Questions and Comments… U.S. Department of Commerce | National Oceanic and Atmospheric Administration | NOAA Fisheries | Page 66