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U.S. Department

of Transportation

**Federal Highway**

# Administration

**SENT BY ELECTRONIC MAIL**

Subject: **[INFORMATION]{.underline}:** Management of the Date: February
20, 2002

## Endangered Species Act (ESA) Environmental

Analysis and Consultation Process

(Original signed by)

From: James M. Shrouds Attn. of: HEPN-30

Director, Office of Natural Environment

To: Division Administrators

Federal Lands Highway Division Engineers

The following guidance is intended to address issues related to
implementation of the ESA in the Federal-aid highway program. These
issues are:

1.  the interaction of the National Environmental Policy Act (NEPA)
    environmental analysis and ESA Section 7 consultation process,

2.  the authority of FHWA divisions to delegate and manage the ESA
    Section 7 process, and

3.  environmental analysis of candidate species for ESA listing.

# Interaction Between NEPA and ESA

The NEPA and the ESA Section 7 processes interact in the early phases of
the environmental analysis of a project. The NEPA drives the evaluation
of biological resources in the project area concurrent and
interdependent with the ESA Section 7 consultation process. Evaluation
of impacts to species federally-listed as endangered is required for all
levels of NEPA documentation, and the detail of analysis is potentially
the same, dependant on the scope of the project, ecological importance
and distribution of the affected species, and intensity of potential
impacts of the project. A CE determination through NEPA does not exempt
any project from sufficient environmental analysis to determine the
likely presence and potential impacts of the project on listed species,
unless a programmatic determination to that effect has been made at the
local level with the concurrence of the Fish and Wildlife
Service/National Marine Fisheries Service (Services). A potential impact
on species or habitat protected by the ESA does not automatically
require elevation of the NEPA documentation (CE, EA, EIS). This depends
on the importance of the resources and the scope of the impacts.

The minimal biological evaluation (BE) under Section 7 for any
Federal-aid project not addressed programmatically, is a request to the
Services for information on the presence of listed or proposed species
or critical habitat in the project vicinity. If the Services respond
that protected species or habitat are known not to occur in the action
area, the environmental analysis with respect to the ESA is complete and
the FHWA concurs in writing with a no effect determination by the State
DOT. The determination of no effect should be included in the NEPA
documentation, including CEs. A "likely to effect determination" is
appropriate when the action area of the proposed project includes areas
known to be inhabited, or known to be potentially inhabited, by one or
more listed species, or the action area includes designated critical
habitat.

If the Services respond that protected species or habitat are known or
likely to occur in the project action area, the State DOT has the option
of entering informal consultation or directly requesting formal
consultation. The process of informal consultation is optional and is
described in 50 CFR § 402, Interagency Cooperation-Endangered Species
Act of 1973, as Amended, Subpart B, Consultation Procedures. The
endangered species analysis should be appropriate to the scope of the
project. It may be prepared as a BE or a BA in the case of an EIS. A
distinction is made between the process for submitting a BA (which
occurs in accordance with Part 50 CFR § 402.12 for EIS projects) and the
preparation of a BE (which is developed during informal consultation and
may be used to initiate formal consultation for EAs and CEs).

In a BE the groundwork is established for a determination of "may
affect, not likely to adversely affect" or "may affect, likely to
adversely affect", which is initially made by the State DOT. An analysis
of the action area, determination of distribution and occurrence of
contributing habitat elements, biological characteristics of the
species, and potential impacts of the project (including noise,
disturbance, and other factors which could affect the behavior,
reproduction, and general ecological functions of the species) should be
discussed. The BE should include an "affect" determination for listed
species or habitat. These conclusions should be supported by the
information in the BE, including a discussion of potential mechanisms of
impact on the species or habitat.

Sufficient information must be provided to the Services to make a "not
likely to adversely effect" or "likely to adversely effect"
determination in informal consultation, or a jeopardy/adverse
modification or non-jeopardy/no adverse modification determination in
formal consultation. Because the FHWA does not require elevation of NEPA
documentation when a project is determined as "likely to adversely
affect" a listed or proposed species, the preparation of a BE and formal
consultation can be required for CEs and EAs. BEs submitted for formal
consultation should contain the same biological information as a BA.

When a programmatic determination on classes of actions which are
considered "not likely to adversely affect" listed or proposed species
or critical habitat has been concurred in by the FHWA and the Services
in writing, no further evaluation is required on these projects. Actions
of this nature might include signing, striping, overlays, minor
reconstruction, and similar activities which experience has shown to
have insignificant, discountable, or beneficial effects on listed
species.

Consultation on Species or Critical Habitat Listed Under the Endangered
Species Act -- Delegation Authority

50 CFR Section 402.08, Designation of Non-Federal Representative, allows
Federal agencies to delegate informal consultation and preparation of
BEs and BAs to a non-Federal representative. The FHWA (by letter to the
Services dated August 7, 1986) did this, delegating informal
consultation and preparation of BEs and biological assessments in the
Federal-aid highway program to State DOTs. The ESA and 50 CFR § 402.08
require that the FHWA furnish guidance and supervision of the
consultation process, concur in no effect determinations, and
independently review and evaluate the scope and content of BAs. BEs,
species lists, habitat descriptions, and other documentation prepared to
assess the effects of both major and non-major Federal actions on listed
and proposed species and habitats, both programmatic or individual, may
be submitted by the State DOT directly to the Services' field office
under the delegation authority, at the discretion of the FHWA division
office. The FHWA division offices retain discretionary authority to
review and participate in any stage of the ESA consultation process on a
Federal-aid highway project, from NEPA evaluation of resources through
formal consultation.

The FHWA policy encourages the State DOTs to be proactive in informal
consultation, including modification of the proposed project where
necessary to avoid adverse effects. If, during informal consultation,
the State DOT obtains written concurrence from the Services that the
action as proposed or modified is not likely to adversely affect listed
or proposed species, or listed or proposed habitat, Section 7
requirements have been met. The authority of the FHWA to delegate
informal consultation and preparation of BEs and BAs to the State DOTs
is not discretionary on the part of the Services.

The ultimate responsibility for compliance with all Section 7
requirements in regard to federally‑funded highway projects remains with
the FHWA. 50 CFR § 402 does not provide for delegation of formal
consultation to a non-Federal representative. All formal consultation
procedures with the Services must be carried out by the FHWA division
office.

BAs include information concerning all species listed and proposed for
listing under the ESA, designated and proposed critical habitat that may
be present in the action area of the project, and the evaluation of
potential effects of the project on such species and habitat. This
information is described in detail in 50 CFR 402.12(f). BAs are prepared
for major construction activities, typically EIS projects, and shall be
independently reviewed by the FHWA division office, before being
submitted to the Services' field office. This review must be carried out
in a timely way to facilitate completion of the consultation
requirements.

Re-initiation of consultation may be requested by the State DOT, the
FWHA, or the Services after initial consultation is completed as made
necessary by changes in the scope or design of the project, discovery of
the presence of previously unknown listed species or critical habitat,
or the listing of new species. Re-initiation of informal consultation
can be done by the FHWA or delegated to the State DOT, at the discretion
of the FHWA division. Formal consultation must be re-initiated by the
FWHA.

Conference Process for Proposed Species

Species and critical habitats proposed in the *Federal Register* for
listing are subject to the conferencing process established in 50 CFR
§ 402.10, Conference on Proposed Species or Proposed Critical Habitat.
Conference is a process of early interagency coordination, similar to
consultation, involving informal or formal discussions between a Federal
agency and the Services pursuant to Section 7(a)(4) of the ESA regarding
the potential impact of a project or action on proposed species or
proposed critical habitat. The conference procedure is designed to help
Federal agencies identify and resolve potential conflicts between
Federal projects and species conservation by developing recommendations
to minimize or avoid adverse effects on proposed species or proposed
critical habitat.

Informal conference on proposed species or critical habitat may be
carried out by the State DOTs. If a determination is made that a
proposed Federal-aid highway project is likely to jeopardize a species
or destroy, or adversely affect, critical habitat proposed for listing
under the ESA authorities, a formal conference is required and must be
initiated by the FHWA. During the conference process, the Services will
make advisory recommendations on ways to avoid or minimize adverse
effects. If agreed to by the FHWA division office and the Services'
field office, the conference can be carried out under § 402.14, Formal
Consultation. If those procedures are followed, and the species or
critical habitat is listed prior to completion of the project, the
Services have the option (in the absence of significant changes in the
project or significant, new information on the species) of adopting the
conference opinion as the biological opinion for the project. An
incidental take statement issued with a conference opinion does not
become effective unless the Services adopts the conference opinion as
the biological opinion.

**Candidate Species**

Candidate species are those species for which the Services have on file
sufficient information on biological vulnerability and threat(s) to
support issuance of a proposed rule to list, but for which issuance of
the proposed rule is currently precluded by one or more of several
conditions. These species were formerly called Category 1 candidates.
They are now referred to simply as candidate species. The Services
emphasize that these candidate taxa are not proposed for listing, but
that development and publication of proposed rules for listing of
candidate species is anticipated. Species formerly classified as
Category 2 and Category 3 candidate species are no longer classified as
candidates. The Services maintain data on these species when feasible.

Categorization of a species as a candidate is strong evidence that the
species is of special concern, and subject to the full protection of the
listing process, if not at present, probably in the future. There are no
absolute guidelines on how long it will take a species to go from the
candidate list, to being proposed, to a final rule on listing. Impacts
on candidate species should be addressed in Federal-aid highway project
environmental documents. NEPA documents should identify candidate
species as such, and describe any planned conservation measures. The
Services encourage Federal agencies to consider implementing
conservation measures for candidate species, as these measures may avoid
the future necessity of listing. Proactive partnering with the Services
to conserve candidate species might reduce future delays on Section 7
processes and/or result in future cost savings if listing can be
avoided. However, candidate status does not provide species protection
under the listing process, and neither consultation nor conference,
formal or informal, is required on Federal-aid highway projects for
candidate species under the ESA Section 7 requirements. Any interagency
coordination on these species with respect to Section 7 of the ESA by
the FHWA or the State DOT is discretionary. However, they have the same
status as any other non-regulated resource issue under NEPA.

**Emergency Listing**

The Services have the option, when they believe it is warranted, of
initiating emergency listing procedures, which can result in a species
being listed in less than 90 days. Emergency listing lasts 240 days,
during which time the Services can usually complete final listing.

cc: Directors of Field Services

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