The Endangered Species Act of 1973 (16 USC 1531) (ESA) prohibits the unauthorized taking, possessing, sale or transporting of federally threatened and federally endangered (T/E) plants and animals. Section 7 of the Endangered Species Act requires federal agencies to ensure that any action authorized, funded or carried out by them is not likely to jeopardize the continued existence of listed species or modify their critical habitat. The law is administered by the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) for marine and anadromous species through the federal Wildlife and Fisheries regulations at 50 CFR 17, “Endangered and Threatened Wildlife and Plants”, and 50 CFR 402, “Interagency Cooperation – Endangered Species Act of 1973, as Amended”.
When It Is Required
Any federal action or federally funded project must comply with the ESA. This includes any project that needs, for example, an Army Corps of Engineers wetland permit, a NPDES permit, or any federally funded project.
Consultation for compliance with ESA occurs at the USFWS Regional Offices. USFWS Region 1 (New England) has developed a process to expedite Endangered Species Consultation, described below.
Review the USFWS list of endangered species to see if there are known occurrences of federally listed species in the town where the project is proposed. There are no known occurrences for federally endangered or threatened species in Caledonia, Franklin, Grand Isle, Lamoille, Orleans and Washington Counties.
If the project falls within a town where the endangered dwarf wedge mussel is known to occur, check the appropriate map on the USFWS New England Field office website to determine whether the project is in the vicinity of its known range. This species is only in the Connecticut River in Vermont.
If a proposed project occurs in a town with no known listed, proposed or candidate species present, no further coordination with the Service is needed. The applicant may download a "no species present" letter (158 KB) stating "no species are known to occur in the project area".
If the proposed project occurs in a town with known occurrences of T/E species, the applicant proceeds to the following:
Determine whether any listed or proposed New England Species are likely to occur within the proposed project area by comparing the habitat present within the proposed project action area with habitat that is suitable for the species.
Review the information USFWS provided on the species list information from the appropriate state agency, and any other sources of information available to determine types of habitat the species use. A description of suitable habitat for New England's federally listed species may be found on the USFWS New England Field Office website.
Determine whether the proposed project action area has any potential for listed species habitat.
If the Vermont Natural Heritage Program or Endangered Species Program does not identify any listed species for the proposed project AND there is no potential habitat for any listed species within the action area, no further coordination with USFWS is required. You may download a "no species present" letter stating "no species are known to occur in the project area".
If potential listed species habitat is present although the species has not been documented from that specific location, further coordination with USFWS is recommended. The applicant sends results of the assessment including any habitat surveys to the USFWS New England Field Office.
Include in the submission:
A detailed description of the proposed project, including approximate proposed project construction schedule and project activities (e.g., land clearing, utilities, stormwater management).
Site plans if available.
A description of the natural characteristics of the property and surrounding area (e.g., forested areas, freshwater wetlands, open waters, and soils). Photographs are often helpful in assessing the habitat.
A description of surrounding land use (residential, agricultural, or commercial).
The location of the above referenced property and extent of any project related activities or discharges clearly indicated on a copy of a USGS 7.5 Minute Topographic Quadrangle (Quad) with the name of the Quad(s) and latitude/longitude clearly labeled.
A description of conservation measures to avoid or minimize impacts to listed species.
Based on the results of the habitat survey and a description of the proposed project (including information as to whether any potential habitat may be directly or indirectly affected), the involved Federal agency may determine:
The proposed project will result in no effect to any T/E species and no further coordination or consultation with the Service is required;
Additional information (e.g., surveys) is required to determine whether any T/E species are likely to occur within the proposed project area; or
The proposed project "may affect" a T/E species and consultation with the Service is required.
In cases where the project “may affect” a known T/E species, a Biological Assessment is typically prepared. When T/E species are known to occur and an Environmental Impact Statement is being prepared, the preparation of a Biological Assessment is a requirement. The content of a Biological Assessment is not mandated by law but regulations at 50 CFR 402.12 recommend that they include:
1) The results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally.
2) The views of recognized experts on the species at issue.
3) A review of the literature and other information.
4) An analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies.
5) An analysis of alternate actions considered by the Federal agency for the proposed action.
The federal agency with authority over the federal action submits the Biological Assessment to the director of the USFWS or NMFS for review. If the director concurs with the findings, and the Biological Assessment finds that no impact to T/E species will occur, he or she will write a letter to that effect, and no further consultation is necessary.
If the Biological Assessment finds that there is a potential for impact, a formal consultation process begins. The USFWS, after evaluating all the available information, prepares a Biological Opinion, which states whether the proposed action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. If so, the proposed project will result in an “incidental take”, and the Biological Opinion will specify the extent of the impact, measures to minimize the impact, and other information. The federal agency responsible for the proposed action must then determine if it (the agency) can comply with the requirements of the ESA that require federal agencies to insure that their actions will not result in a taking of a T/E species.
In some cases, an incidental take permit may be issued by USFWS, for example where the conditions of the biological opinion required the applicant to capture an animal species for study at a later date. Incidental take permits may also be required for non-federal entities if an otherwise lawful activity may result in the “incidental” take of a federally listed species.
Section 7 Consultation procedures are detailed in a manual published by the USFWS and NMFS, titled Consultation Handbook, Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act.
Regulatory programs with overlapping jurisdiction with the Endangered Species Act include, but are not necessarily limited to, the following:
- Vermont Endangered Species Program: Vermont regulates rare species through a state program. The state’s rare species list is more inclusive than the federal list, and includes the federally listed species.
For More Information:
U.S. Fish and Wildlife Service
New England Field Office
70 Commercial Street
Concord, NH 03301-5087
Consultation Handbook, Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act
U.S. Fish and Wildlife Service New England Field Office