U.S. Fish & Wildlife Service

Consultations with

Federal Agencies

Section 7 of the Endangered Species Act

The Endangered Species Act (ESA) has

broader mandates than simply directing

the Fish and Wildlife Service to protect

listed plants or animals. all

Federal agencies to participate in

endangered species conservation.

Specifically, section 7 of the ESA charges

Federal agencies to aid in the

conservation of listed species (section 7

(a)(1)) and requires Federal agencies to

ensure that their activities will not

jeopardize the continued existence of

listed species or adversely modify

designated critical habitats (section 7 (a)(2)).

What types of conservation activities are

we doing under section 7(a)(1)?

One way that we actively carry out

conservation activities for listed species

under section 7(a)(1) is through our

Partners for Fish and Wildlife Program.

This program is geared toward habitat

restoration on private lands. Listed

species are considered a priority in this

program; as a result, habitat restoration

efforts funded by the Partners program

have directly benefitted a number of

listed species, such as the Louisiana

black bear (Ursus americanus luteolus)

and the red-cockaded woodpecker

(Picoides borealis).

Other Federal agencies also have used

their existing authorities to conserve

listed species. For example, some wildlife

conservation programs administered by

the U.S. Department of Agriculture’s

Natural Resources Conservation

Service, including the Wetland Reserve

Program, the Wildlife Habitat Incentive

Program, the Conservation Reserve

Program, and the Environmental Quality

Incentive Program, have incorporated

listed species.

What is the consultation process that

occurs under section 7(a)(2)?

The provision under section 7 that is

most often associated with the FWS and

other Federal agencies is section 7(a)(2).

It requires Federal agencies to consult

with the FWS to ensure that actions they

fund, authorize, permit, or otherwise

carry out will not jeopardize the

continued existence of any listed species

or adversely modify designated critical

habitats. FWS issued regulations in 1986

detailing the consultation process, and

we have since completed a handbook

describing the process in detail. 

handbook is available on our web site at

http://endangered.fws.gov/consultations.

How is the consultation process started?

Before initiating an action, the Federal

action agency (the agency planning a

specific action), or its non-Federal permit

applicant, must ask the FWS to provide a

list of threatened, endangered, proposed,

and candidate species and designated

critical habitats that may be present in

the project area. If we answer that no

species or critical habitats are present,

then the Federal action agency has no

further ESA obligation under section

7(a)(2) and consultation is concluded. If a

species is present, then the Federal

action agency must determine whether

the project may affect a listed species. If

so, consultation is required. If the action

agency determines (and the FWS agrees)

that the project does not adversely affect

any listed species, then the consultation

(informal to this point) is concluded and

the decision is put in writing.

What happens if a federal project may

adversely affect a listed species?

If the Federal action agency determines

that a project may adversely affect a

listed species or designated critical

habitat, formal consultation is required.

There is a designated period of time in

which to consult (90 days), and beyond

that, another set period of time for the

FWS to prepare a biological opinion (45

days). The determination of whether or

not the proposed action would be likely to

jeopardize the species or adversely

modify its critical habitat is contained in

the biological opinion. If a jeopardy or

adverse modification determination is

made, the biological opinion must identify

any reasonable and prudent

alternatives that could allow the project

to move forward.

How does the Service manage projects

that require the ‘take’ of some listed

species?

If the FWS issues either a nonjeopardy

opinion or a jeopardy opinion that

contains reasonable and prudent

alternatives, it may include an incidental

take statement. “Take” is defined as

harassing, harming, pursuing, hunting,

shooting, wounding, killing, trapping,

capturing, or collecting or attempting to

engage in any such conduct. (“Harm” is

further defined to include significant

habitat modification or degradation that

results in death or injury to a listed

species by significantly impairing

behavioral patterns such as breeding,

feeding, or sheltering.) “Incidental take”

is defined as take that is incidental to, and

not the purpose of, an otherwise lawful

activity. The FWS must anticipate the

take that may result from the proposed

Red-cockaded woodpecker

USFWS photo by John & Karen Hollingsworth

It directs 

The
project and, providing such take will not 

jeopardize the listed species, describe 

that take in the incidental take 

statement. The latter contains clear 

terms and conditions designed to reduce 

the impact of the anticipated take to the 

species; these terms are binding on the 

action agency. 

What is the consultation workload? 

The vast majority of evaluated actions


have no effect on listed species or their


designated critical habitat. In fact, from


1998-2001 the Service conducted


over 219,000 informal and formal


Section 7 consultations. Of those,


only 367 received a “jeopardy”


opinion which required reasonable


and prudent alternatives to further


reduce adverse impacts to listed


species.


A large percentage of projects that


would have, at least as initially planned,


adverse impacts to listed species are


dealt with through informal consultation,


in which the Federal action agency makes


changes to the project design so that


impacts to listed species are avoided.


As more and more Federal agencies


begin to work with the FWS under


section 7(a)(1), the conservation benefits


should be reflected in an even lower


number of jeopardy opinions.


What type of guidance is available for


other Federal agencies?


Guidance is available on our section 7 The Louisiana black bear


webpage at http://endangered.fws.gov/ in this picture was one of


section7. Please call us at 703/358-2106, if the largest ever captured on


you have any questions or see our 

Tensas River National


contacts webpage at http:// Wildlife Refuge, weighing


endangered.fws.gov/contacts.html to in at over 400 pounds. The


locate a Service office in your area. bear was trapped using a


leg-hold cable snare that 

does not injure the animal. 

The biological information 

obtained, including weight, 

sex, a tooth for aging, and 

other measurements, are 

part of the Service’s ongoing 

research efforts to aid in the 

recovery of this threatened 

subspecies. Afterwards, the 

bear was released on site. 

Photo by Dan Anderson/USFWS 

U.S. Fish & Wildlife Service 

Division of Endangered Species 

703/358 2106 

http://endangered.fws.gov 

February 2002