U.S. federal law protects critically rare animal and plant species and their habitats. The Endangered Species Act of 1973 (16 U.S.C 1531) provides for the protection of species that are at risk of extinction throughout all, or a significant portion of their range, and for the protection of ecosystems on which they depend. Generally, the US Fish and Wildlife Service (FWS) coordinates Endangered Species Act (ESA) activities for terrestrial and freshwater species, and the National Marine Fisheries Service (NMFS) coordinates ESA activities for marine and anadromous species.
The ESA lists plant and animal species that are endangered or threatened. All listing decisions are based solely on the best scientific and commercial data available, and consideration of economic impacts during listing process is prohibited by the Act. Under Section 7 of the ESA, all federal agencies are required to undertake programs for the conservation of endangered and threatened species. Any federal action that would jeopardize a listed species or destroy or modify its critical habitat is prohibited. Section 7 activities must be carried out in consultation with FWS or NMFS in a process that is described below.
Overview: The Federal Transit Administration (FTA), in consultation with Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS), must ensure that no federally funded mass transportation projects will jeopardize the continued existence of any listed species, or result in the destruction or adverse modification of critical habitat. During project scoping, FWS and NMFS should be contacted for information about listed species that may be present. Comprehensive listings of endangered and threatened wildlife and plants are maintained on the FWS website.
Section 7 Process: All Federal agencies must consult with the appropriate Service when any activity permitted, funded or conducted by that agency may affect a listed species or designated critical habitat, or is likely to jeopardize proposed species or adversely modify proposed critical habitat. The Service conducts several types of consultations on Federal agency activities, including informal or formal consultations for listed species or designated critical habitats, and informal or formal conferences for proposed species or proposed critical habitats. Title 50: Part 402 (50 C.F.R 402) establishes requirements for the consultation process.
Informal Consultation: Informal consultation precedes formal consultation, and usually begins with a request to FWS or NMFS for information on endangered species in the project area. Discussions during this phase may include whether and which species may occur in the proposed action area and what effect the action may have on listed species or critical habitats. Informal consultation often concludes with the Service's written concurrence with the Federal agency's determination that its action is not likely to adversely affect listed species or their critical habitat, i.e., an exception to formal consultation.
If listed or proposed species, or critical habitat is identified as potentially being present within the project area, a biological assessment (as defined in the Section 7 regulations) must be conducted to identify probable locations of listed species and its habitat. The results of the biological assessment should be included in the Draft Environmental Impact Statement (EIS) or Environmental Assessment (EA) and submitted to FWS or NMFS as part of the informal consultation process. If the biological assessment indicates that no listed or proposed species or critical habitat will be adversely affected, the consultation process is terminated after review by the FWS.
Formal Consultation: If the biological assessment concludes that the action would cause adverse effects, FTA must initiate a formal consultation process. Section 7 specifies the information that must be included in FTA's request for formal consultation. The FWS or NMFS will issue, after receipt of the required information, a biological opinion on whether the action is or is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. If the opinion states that the action is not likely to jeopardize a listed species or destroy, or adversely modify critical habitat, the consultation process is terminated with the issuance of the opinion. The opinion may include conservation recommendations. If a jeopardy biological opinion is issued, it will include reasonable and prudent alternatives and conservation recommendations, if any. The biological opinion should be stated in the Final EIS or EA.
When a jeopardy opinion is issued, the formal regulatory process is terminated when FTA submits its final decision on the project to FWS or NMFS. While not required, it is strongly encouraged that consultation should continue. If FTA determines that it cannot comply with the Section 7 requirements after consultation, it may apply for an exemption following procedures outlined in 50 CFR 451, known in legal terms as a taking.
The Endangered Species Bulletin is used by the U.S. Fish and Wildlife Service to disseminate information on rulemakings (listings, reclassifications, and de-listings), recovery plans and activities, regulatory changes, interagency consultations, changes in species' status, research developments, new ecological threats, and a variety of other issues related to the endangered species program.