1. Biological Opinions & Endangered Species Act Consultation – A “How To” Guide for Working with Agencies on ESA Issues
MATTHEW A. LOVE
Partner- Seattle, Washington
February 19, 2013
Portland, OR

2. The Purpose of the ESA
The ESA, passed by Congress in 1973, is designed to protect critically imperiled species from extinction.
Administered by:
Department of Commerce – National Marine Fisheries Service (NMFS)
Authority over marine species
Department of Interior – U.S. Fish and Wildlife Service (USFWS)
Authority over freshwater fish and all other species
“The most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978).
- ESA protects both the species and the ecosystems upon which they depend.
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3. The Endangered Species Act (ESA)
Section 4 Listing Process and Critical Habitat Designations
Section 7 Consultation Requirements
Section 9 Take Prohibition
Section 10 Incidental Take and Habitat Conservation Plans
Section 11 Enforcement
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4. Overview of ESA Section 7
ESA Section 7’s substantive and procedural obligations
Initiation of Section 7 consultation
Roles of action agency, resource agency, and the license applicant (as designated non-federal representative)
Section 7 consultation process
BiOps, ITS, RPAs, RPMs, and TCs
Reinitiation of consultation
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5. Section 7’s Substantive Obligation
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6. Section 7’s Substantive Obligation
ESA § 7(a)(2):
“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 [Critical Habitat].”
Tennessee Valley Authority v. Hill (1978): “One would be hard-pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species or ‘result in the destruction or modification of habitat of such species’ This language admits of no exception.”
In issuing a license, FERC has a substantive obligation under Section 7 not to jeopardize the continued existence of a species.
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7. Section 7’s Procedural Obligations
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8. What is Involved in a Section 7 Consultation?
Threshold considerations
Biological assessment
Informal consultation
Formal consultation
Biological opinion
Incidental take statement
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9. The Informal Consultation Process
Discretionary Federal Actions:
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct (2007)
“Action” is broadly defined as “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas.” 50 C.F.R. §
Ongoing agency actions
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10. INFORMAL CONSULTATION
Federal Agency Action
Major Construction Activity
Biological Assessment
No Effect
Not Likely to Adversely Affect
Federal Agency Action
Informal Consultation
If “no effect,” consultation ends
“Major construction activities” trigger BA preparation
Those construction projects, or other undertakings having “similar physical impacts,” that are major federal actions significantly affecting the quality of the human environment as referred to in NEPA. 50 C.F.R. §
BA evaluates potential effects of the action on listed species and designated critical habitat in the action area
Must use “best scientific and commercial data available”
Role of non-federal representative
NEPA documents
Not Likely to Adversely Affect
Informal discussion between Service and action agency to determine if formal consultation required
If action is not likely to adversely affect listed species or critical habitat, consultation ends
Service issues written concurrence
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11. The Formal Consultation Process
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12. Initiation of Formal Consultation Biological Opinion
Required if proposed action “is likely to adversely affect” listed species or critical habitat
Under Section 7(d), no irreversible or irretrievable commitment of resources that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures
Proposed action
Environmental baseline
Status of the species in the action area
Factors affecting species within the action area
Analysis of effects
Direct effects
Indirect effects
Cumulative effects
Jeopardy determination
Incidental take statement (ITS)
Conservation recommendations
Biological Opinions & Endangered Species Act Consultation – Portland, OR

13. Biological Opinion Proposed action Environmental baseline
Analysis of effects
Jeopardy determination
Reasonable and prudent alternative (RPA)
Incidental take statement (ITS)
Conservation recommendations
Proposed action
Environmental baseline
Status of the species in the action area
Factors affecting species within the action area
Analysis of effects
Direct effects
Indirect effects
Cumulative effects
Jeopardy determination
Jeopardy occurs when an action can reasonably be expected to appreciably reduce the likelihood of both the survival and recovery of a listed species in the wild
Adverse modification of critical habitat is direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of a listed species
Reasonable and prudent alternative (RPA)
Incidental take statement (ITS)
If incidental take likely, BiOp must include ITS
ITS contains:
Amount and extent of take
Numerical amount or surrogate
Adequate monitoring and reporting requirements
Reasonable and prudent measures (RPM) and terms and conditions (TC)
Conservation recommendations
Biological Opinions & Endangered Species Act Consultation – Portland, OR

14. Reinitiating Consultation
When action agency retains discretionary control, it has continuing obligation to reinitiate consultation if:
the incidental take statement is exceeded;
new information reveals new effects of the action;
action is subsequently modified; or
new species is listed or critical habitat designated
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15. Keys to Success
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16. February 19, 2013 Portland, OR For more information MATTHEW A. LOVE
719 Second Avenue
Suite 1150
Seattle, WA 98104
February 19, 2013
Portland, OR