1. Endangered Species Act
Cara Cowan Watts
Graduate Student
Biosystems Engineering

2. Source of Class Materials
Presentations and Handouts
adapted from
The U.S. EPA’s
Water Quality Standards Academy
November 27-December 1, 2006
Washington, DC

3. Endangered Species Act (ESA)
Mission
To conserve listed species and their habitat
Imposes overarching substantive obligation on Federal agencies to ensure their actions do not jeopardize listed species
All actions authorized, funded or carried out, in whole or in part, by a Federal agency which may affect listed species or designated critical habitat

4. ESA: Interagency Cooperation
7(a)(1): Federal agencies shall use their authorities to conserve species
7(a)(2): Federal agencies shall "consult" to ensure actions do not jeopardize species
Action includes activities authorized, funded or carried out by a Federal agency

5. ESA: “Take” Unlawful to “take” a listed species
“Take” includes harass, harm, pursue, hunt, kill, capture or collect
Exception: Service may permit take if take is incidental to and not the purpose of an otherwise legal activity

6. ESA Application to WQS
85% of listed animal species use wetlands and aquatic habitats
Federal Action "May Affect“
Biological Evaluation
Adversely Affected
Informal Consultation
Formal Consultation
Biological Opinion
Jeopardy - RPAs and RPMs

7. Biological Evaluations
If action “may effect” species or critical habitat, agency is to conduct a biological evaluation
Evaluate the potential effects of the action on listed species and critical habitat
Determine if listed species or critical habitat are likely to be adversely affected

8. ‘Adversely Affected’
Agency is to determine if any species or critical habitat are likely to be adversely affected
Not ‘likely to be adversely affected’ if effect is beneficial, discountable, or insignificant

9. Informal Consultation
Determine if formal consultation is necessary
All discussions and correspondence between agency and Service prior to formal consultation
If the agencies determine “not likely to adversely affect,” then consultation concludes

10. Formal Consultation
Required with action agency determination of “likely to adversely affect”, although action agency may request formal consultation at any time
Action agency may proceed with its action prior to formal consultation, providing its action is consistent with ESA Section 7(d)
Concludes with Service’s biological opinion (or mutual “not likely to adversely affect” finding)

11. Biological Opinion Summary of information on which opinion is based
Discussion of the effects of the action on listed species and critical habitat
Indicates Service’s opinion on whether action is likely to jeopardize species or adversely modify critical habitat
Jeopardy - Accompanied by Reasonable and Prudent Alternatives

12. Reasonable and Prudent Alternatives
Recommended alternative actions MUST BE
Consistent with the scope of the Federal agency’s legal authority
Consistent with the intent of the action
Economically & technologically feasible
Avoid the likelihood of jeopardy

13. What is Jeopardy? Defined IF jeopardy
Action…expected…to diminish a species’ numbers, reproduction, or distribution so that the likelihood of survival and recovery in the wild is appreciably reduced
IF jeopardy
Federal agency is to notify the Service of final decision on the action
A jeopardy opinion is non-binding
HOWEVER
Federal agency is at risk in not fulfilling the requirements of the ESA

14. ‘No Jeopardy’ Finding Amount of incidental take that can occur
Reasonable and Prudent Measures (RPMs) necessary to minimize the incidental take
Terms and conditions that Federal agencies are to use to implement the RPMs

15. Formal Consultation: Expectations
Concludes 90 days after initiation
Unless by mutual agreement to extend
Service is to issue its biological opinion within 45 days of conclusion
Federal agency shall provide the Service with the best scientific and commercial data available
OR which can be obtained for an adequate review of effects of action

16. Consultation Process
ACTION AUTHORIZED, FUNDED, OR CARRIED OUT BY FEDERAL AGENCY? No
Yes
End
ACTION MAY AFFECT LISTED SPECIES?
Action “affects” species if the effect is either detrimental or beneficial No
Yes
INFORMAL CONSULTATION
Consists of communications between Action agency and Service. Action agency provides data and perform a biological assessment
(Action agency may go directly to formal consultation)

17. Consultation Process…cont’d
AGENCY FINDS ACTION NOT LIKELY TO “ADVERSELY AFFECT” SPECIES AND SERVICE CONCURS IN WRITING
Yes No
End
FORMAL CONSULTATION
90 days unless extended by agreement of agencies. Service can request agency to
provide additional data, which the agency
must obtain, if practicable, within
consultation period.

18. Consultation Process…cont’d
SERVICE RENDERS “BIOLOGICAL OPINIONS” WITHIN 45 DAYS AFTER CONCLUSION OF FORMAL CONSULTATION AS TO WHETHER ACTION IS LIKELY TO JEOPARDIZE THE CONTINUED EXISTENCE OF ENDANGERED SPECIES
IF SERVICE FINDS JEOPARDY, INCLUDES REASONABLE AND PRUDENT ALTERNATIVES TO AVOID JEOPARDY. IF SERVICE FINDS NON-JEOPARDY, IT MAY INCLUDE AN INCIDENTAL TAKE STATEMENT WHICH INCLUDES REASONABLE AND PRUDENT MEASURES
AGENCY DECISIONS ON HOW TO PROCEED. Service opinion not binding but Action Agency must develop an adequate record to support a finding of No Jeopardy

19. Questions?