HYDROPOWER LICENSING AND 

ENDANGERED SPECIES

A Guide for Applicants, Contractors, and Staff

Federal Energy Regulatory Commission

Office of Energy Projects

Washington, DC

December 2001
This report was prepared by staff of the Office of Energy Projects and does not

necessarily reflect the views of other members of the Federal Energy Regulatory

Commission. The guidance included in this document is subject to change.

Important Web Sites

• Federal Energy Regulatory Commission

http://www.ferc.gov

• Environmental Protection Agency (Federal Register endangered species notices

archive)

http://www.epa.gov/fedrgstr/EPA-SPECIES/

• National Marine Fisheries Service (Office of Protected Resources)

http://www.nmfs.noaa.gov/prot_res/overview/es.html

• National Marine Fisheries Service (Pacific Northwest region)

http://www.nwr.noaa.gov/1salmon/salmesa/index.htm

• Natural Heritage Programs

http://www.abi.org/nhp/us_ programs.htm

• U.S. Fish and Wildlife Service Endangered Species

http://endangered.fws.gov
Hydropower Licensing and Endangered Species Page i

CONTENTS

1 Introduction ................................................. 1

2 The Endangered Species Act ................................. 3

2.1 Section 4–Listings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2.2 Section 7–Interagency Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2.3 Section 9–Prohibition of Take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2.4 Section 10–Permits to Take ................................. 8

2.5 Section 11–Citizen Suits .................................. 10

3 Pre-filing Consultation ...................................... 11

3.1 Coordination Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3.2 Designation of Non-federal Representative ................... 16

3.3 Endangered Species Surveys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3.4 Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3.5 Preparation of A Biological Assessment ..................... 19

3.6 Summary of Participants' Roles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3.7 Alternative Licensing Process .............................. 20

4 Post-filing Process .......................................... 21

4.1 Reviewing the License Application . . . . . . . . . . . . . . . . . . . . . . . . . . 21

4.2 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

4.3 Preparing the Biological Assessment ........................ 29

4.4 Formal Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

4.5 Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

4.6 Final EA/EIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

4.7 Licensing Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

5 Post-licensing Process ...................................... 55

5.1 License Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

5.2 Development of New Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

5.3 Article Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

5.4 Reinitiation of Formal Consultation .......................... 60
Page ii Hydropower Licensing and Endangered Species 

List of Figures

1 Trends in Pacific salmon listings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2 Coordination of FERC pre-filing consultation and endangered 

species consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

3 Coordination of FERC post-filing consultation and endangered 

species consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4 Overview of section 7 process for listed species and designated 

critical habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

5 Overview of section 7 process for proposed species and proposed 

critical habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

6 Formal consultation process .................................... 39

7 Integration of the 10(j) process and endangered species formal

consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

8 Contents of a biological opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

9 Post-licensing process and endangered species consultation ......... 57

List of Exhibits

1 Sample letters for designation of non-federal representative .......... 17

2 Endangered species surveys information request . . . . . . . . . . . . . . . . . . . 28

3 Suggested language for letter requesting species list ................ 30

4 Example of Endangered Species Act section in EA or EIS ............ 32

5 Suggested language for request for concurrence letter .............. 37

6 Suggested language for letter requesting formal consultation ......... 41

7 Example of threatened and endangered species section of license 

order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

8 Endangered species license articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Appendices

A Interagency Task Force Report on Endangered Species (main text)

B Sections 7(a)-(d) of the Endangered Species Act

C Interagency cooperation regulations

D Guidelines for preparing a biological assessment

photo/line drawing credit:

John and Karen Hollingsworth, U.S. Fish and Wildlife Service (cover photo)

Karen Day Boylan, U.S. Fish and Wildlife Service (inside front cover)

Robert Savannah, U.S. Fish and Wildlife Service (pages iv, 2, 10, 20, 54, 60)
Hydropower Licensing and Endangered Species Page iii

LIST OF ACRONYMS

AIR Additional information request

ALP Alternative licensing process

ASR Additional study request

BA Biological assessment

BE Biological evaluation

BO Biological opinion

CFR Code of Federal Regulations

Commission Federal Energy Regulatory Commission

Consultation Handbook Service's Section 7 Consultation Handbook

DEA Draft environmental assessment

DEIS Draft environmental impact statement

EA Environmental assessment

EIS Environmental impact statement

ESA Endangered Species Act

FEA Final environmental assessment

FEIS Final environmental impact statement

FPA Federal Power Act

FERC Federal Energy Regulatory Commission

FWS U.S. Fish and Wildlife Service

HCP Habitat conservation plan

ITF Interagency Task Force

ITF Report ITF Report on Endangered Species

NEPA National Environmental Policy Act

NMFS National Marine Fisheries Service

RPA Reasonable and prudent alternatives

Service FWS or NMFS or both

Staff FERC staff

T&E Threatened and endangered

we FERC staff
Page iv Hydropower Licensing and Endangered Species 
INTRODUCTION SECTION 1

1

 16 U.S.C. § 1531-1543 (1988), as amended (http://endangered.fws.gov/esa.html).

2

 TVA v. Hill, 437 US 153 (1978).

3

 Details on the licensing process can be found in the Hydroelectric Licensing Handbook,

FERC, April 2001 (http://www.ferc.gov/hydro/docs/licensing_handbook.pdf).

Hydropower Licensing and Endangered Species Page 1

Figure 1. Trends in Pacific salmon

listings.

HYDROPOWER LICENSING AND ENDANGERED SPECIES

A Guide for Applicants, Contractors, and Staff

1

Introduction

The Endangered Species Act (ESA)1 is one of the most powerful environmental

laws--designed to prevent the extinction of plants and animals and their habitats. The

Supreme Court concluded that Congress intended "to halt and reverse the trend toward

species extinction, whatever the cost" and gave "endangered species priority over the

'primary missions' of federal agencies."2

Compliance with provisions of the ESA can result in processing delays,

frustration, higher costs, and additional complexity in the hydropower licensing

process.3

 The licensing process, however, has substantially contributed to the

protection and recovery of many listed species.

As more species and stocks

become listed, especially species with

extensive ranges, the potential conflicts

between endangered species and

hydroelectric development will increase. 

Recently issued salmon listings in

particular have great potential to

significantly affect future relicensing

throughout California and the Pacific

Northwest (figure 1). The number of

formal consultations has grown in

response to these listings. From 1973

to 1998, the Commission initiated only

31 formal consultations related to
4

 This work group included FERC, the Departments of Commerce, Interior, and Agriculture, the

Environmental Protection Agency, and the Advisory Council on Historic Preservation.

5

 Work Group on the Coordination of Federal Mandates. 2000. Interagency Task Force Report

on Improving Coordination of ESA Section 7 Consultation with the FERC Licensing Process. December

12, 2000 (http://www.ferc.gov/hydro/docs/esa_final.pdf and www.ferc.gov/hydro/docs/esafigs_final.pdf).

6

 The alternative licensing process combines pre-application consultation and parts of the

environmental review process (scoping and draft environmental document preparation).

7

 The U.S. Fish and Wildlife Service (FWS) and/or National Marine Fisheries Service (NMFS)

are referred to here as the Service.

Page 2 Hydropower Licensing and Endangered Species 

hydropower projects. However, from January 1, 1999, to November 30, 2001, the

Commission has initiated 29 formal consultations.

This document provides guidance for staff of the Federal Energy Regulatory

Commission (FERC or Commission) (staff) and its contractors to effectively comply with

the procedural requirements of interagency consultation during the licensing process

and for applicants to fully understand their role and opportunities in the consultation

process. It will help applicants identify endangered species issues early in the

application process and ensure that sufficient information is developed to prevent

delays in the processing of applications.

This document incorporates the procedures developed by the Interagency Task

Force's (ITF) Work Group on the Coordination of Federal Mandates4

 (ITF Report) to

better integrate and coordinate the procedural steps of the licensing and post-licensing

processes and the interagency consultation process (appendix A).5

 The procedures will

help ensure that ESA issues are considered early in the process and are evaluated

alongside other issues. These procedures largely use existing steps in the

Commission's licensing process. Although designed for the Commission's traditional

licensing process, they may be adapted to the alternative licensing process (ALP)6

(section 3.7) and license amendment process (section 5.1) as well.

The ITF Report also considered off-the-record communications, adequacy of

information, economic feasibility, settlement agreements, information from the Service,7

and scope of effects (appendix A).
ENDANGERED SPECIES ACT SECTION 2

8

 Species--includes any subspecies of fish or wildlife or plants, and any distinct population

segment of any species of vertebrate fish or wildlife which interbreeds when mature (section 3 of the

ESA--definitions). 

9

 Threatened species--any species likely to become an endangered species within the

foreseeable future throughout all or a significant portion of its range (section 3 of the ESA--definitions). 

Threatened species are listed in 50 CFR § 17.11 (wildlife) and § 17.12 (plants).

10 Endangered species--any species that is in danger of extinction throughout all or a significant

portion of its range (section 3 of the ESA--definitions). 

Endangered species are listed in 50 CFR § 17.11 (wildlife) and § 17.12 (plants).

11 Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the

(continued...)

Hydropower Licensing and Endangered Species Page 3

2

The Endangered Species Act

Key provisions of the Endangered Species Act

• Provisions for identifying species as threatened or endangered, designating critical

habitat, and preparing recovery plans (section 4)

• Interagency cooperation (section 7)–the primary focus of this report

• Restrictions on the direct and indirect takings of listed species (section 9)

• Permits to take species (section 10)

• Citizen lawsuits and penalties (section 11)

2.1 Section 4–Listings

Threatened and endangered (T&E) species--The Service may list species8 as

either threatened9

 or endangered.10 The ESA authorizes the listing of distinct

population segments. Distinct population segments are a portion of the overall

population of a species that is both a discrete and significant part of the population.11
SECTION 2 ENDANGERED SPECIES ACT

11(...continued)

Endangered Species Act, Federal Register, Vol. 61, No. 26, p. 4722, February 7, 1996

(http://www.nwr.noaa.gov/1salmon/salmesa/pubs/dpspolcy.pdf).

12 NOAA Technical Memorandum, NMFS F/NWC-194, March 1991, Definition of "Species"

Under the Endangered Species Act: Application to Pacific Salmon (http://www.nwfsc.noaa.gov/pubs/tm/

tm194/waples.htm).

13 Critical habitat--areas that are essential to the conservation of the listed species and that may

require special management considerations or protection (section 3 of the ESA--definitions). Critical

habitat may include areas that are not currently occupied by the species but that will be needed for its

recovery.

Critical habitat designations are based on "the best scientific data available and after taking into

consideration the economic impact, and any other relevant impact, of specifying any particular area as

critical habitat [section 4(b)(2) of the ESA]. Critical habitat is to be designated at the same time as the

species listing, unless it is not considered prudent or determinable at that time--delaying a determination

by up to 1 year (50 CFR § 424.12 and 424.17). Critical habitat designations are found in 50 CFR §

17.95 (fish and wildlife) and 17.96 (plants).

Page 4 Hydropower Licensing and Endangered Species 

For Pacific salmon, the NMFS has identified distinct population segments, called

evolutionarily significant units or ESUs, based on salmon genetics.12 These are

populations that are substantially isolated reproductively and represent an important

component in the evolutionary legacy of the species. 

Critical habitat--The Service also must propose designation of "critical habitat"13

or find that the habitat designation is not prudent or determinable. Critical habitat is a

specific geographic area(s) that is essential for the conservation of listed species.

Protective regulations--Under section 4(d) of the ESA, the Service "shall issue

such regulations as [deemed] necessary and advisable to provide for the conservation

of [threatened] species." A "4(d) rule" can provide incidental take (section 2.4)

protection for certain specified activities as long as those activities are conducted in

compliance with the terms and conditions in the rule.

Certain project-related activities performed by licensees may be authorized

under a 4(d) rule. These limits on the take prohibitions, however, are independent of

federal agencies' responsibility under section 7 of the ESA to consult with the Service if

actions they fund, authorize, or carry out may affect listed species. To the extent that

actions subject to section 7 consultation are consistent with a circumstance for which

the Service has limited the take prohibitions, a letter of concurrence from the Service

will greatly simplify the consultation process, provided the program is still consistent

with the terms of the limit.
ENDANGERED SPECIES ACT SECTION 2

14 Jeopardize the continued existence--to engage in an action that reasonably would be

expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a

listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR

§ 402.02). 

15 Destruction or adverse modification--a direct or indirect alteration that appreciably diminishes

the value of critical habitat for both the survival and recovery of a listed species (50 CFR § 402.02).

16 Conserve--to use all methods and procedures that are necessary to bring any endangered or

threatened species to the point at which the measures provided pursuant to the ESA are no longer

necessary. The methods and procedures include, but are not limited to, activities associated with

scientific resources management such as research, census, law enforcement, habitat acquisition and

maintenance, propagation, live trapping, and transplantation (section 3 of the ESA--definitions).

Hydropower Licensing and Endangered Species Page 5

Similarity of appearance--Section 4(e) authorizes the Secretary to list a species

based on similarity of appearance with a listed species. FWS has indicated that there

is no requirement to consult under section 7 (FWS listing manual, 1994), but a take

permit may be necessary (see section 2.4 of this report).

Recovery plans--Section 4(f) requires the Service to develop and implement

recovery plans for the conservation and survival of listed species, unless such a plan

will not promote the conservation of the species. Recovery plans are documents

prepared for listed species that detail the specific tasks needed to recover those

species. They provide a blueprint for private, federal, and state cooperation in the

conservation of threatened and endangered species and their ecosystems.

2.2 Section 7–Interagency Consultation

Section 7 (appendix B) is most applicable to the licensing of hydropower projects

and is the primary focus of this document. This section requires federal agencies to:

• Consult with the Service to ensure that their actions are not likely to

jeopardize the continued existence14 of federally listed threatened and

endangered species, or result in the destruction or adverse modification15

of designated critical habitat [section 7(a)(2) of the ESA]

• Develop and carry out programs to conserve16 threatened and

endangered species [section 7(a)(1) of the ESA)] 

FWS is responsible for freshwater and terrestrial species and the NMFS is

responsible for marine and anadromous species. FWS and NMFS jointly issued the

final rule establishing procedures for consultation (50 CFR § 402) (appendix C). More
SECTION 2 ENDANGERED SPECIES ACT

17 U.S. Fish and Wildlife Service and National Marine Fisheries Service. 1998. Final

Consultation Handbook--Procedures for Conducting Consultation and Conference Activities Under

Section 7 of the Endangered Species Act. March 1998. (http://endangered.fws.gov/section7/

section7.htm)

18 Informal consultation--an optional process that includes all discussions and correspondence

between the federal agency and the Service, designed to assist the federal agency in determining

whether formal consultation is needed (50 CFR § 402.02).

Page 6 Hydropower Licensing and Endangered Species 

information on the section 7 process can be found in the Services' consultation

handbook17 (Consultation Handbook).

The ESA requires consultation for federally listed and proposed threatened and

endangered species and their designated or proposed critical habitat. The process by

which federal agencies consult on listed species or designated critical habitat is

different as compared to proposed species and proposed critical habitat, as discussed

below. The consultation procedures for threatened species are the same as for

endangered species.

Section 7 consultation can take several forms:

Informal Consultation

Informal consultation18 is an optional process without specific time frames that

includes all interactions with the Service prior to the initiation of formal consultation. 

Informal consultation is used to:

• Assist in identifying whether the proposed action area includes listed or

proposed species, and designated or proposed critical habitat

• Determine what effect the proposed action may have on the identified

species or critical habitat

• Study alternatives to modify the action to reduce or remove adverse

effects to the species or critical habitats

• Identify information gaps

• Determine whether formal consultation is required
ENDANGERED SPECIES ACT SECTION 2

19 Formal consultation--process between the Service and the federal agency that commences

with the request for consultation under section 7(a)(2) of the ESA and concludes with the issuance of the

biological opinion by the Service under section 7(b)(3) of the ESA (50 CFR § 402.02).

20 Conference is a process which involves informal discussions between a federal agency and

the Service under section 7(a)(4) of the ESA regarding the impact of an action on proposed species or

proposed critical habitat and recommendations to minimize or avoid the adverse effects (50 CFR §

402.02).

21 Early consultation–a process requested by a federal agency on behalf of a prospective

applicant under section 7(a)(3) of the ESA (50 CFR § 402.02).

Hydropower Licensing and Endangered Species Page 7

Formal Consultation

If a proposed licensing action may affect a listed species or designated critical

habitat, the Commission must initiate consultation with the Service. However, if the

Commission and the Service agree that the proposed action is "not likely to adversely

affect" listed species or critical habitat, formal consultation19 is not required. This is

discussed in detail in section 4.4. 

Informal/Formal Conferences

A separate process is used for conferencing20 on proposed species or proposed

critical habitat. This is discussed in detail in section 4.5.

Early Consultation

Early consultation21 is a form of "formal consultation" that is carried out before a

license application is filed (18 CFR § 402.11). The process parallels the formal

consultation process. The Service issues a preliminary biological opinion. After an

application is filed, the preliminary opinion may become the final opinion if the Service

finds that there have been no significant changes in the proposal. To date, early

consultation has not been used for non-federal hydropower projects. It may be useful

in cases where few or no changes to an applicant's proposal affecting the listed species

are anticipated after an application is filed, such as with a settlement.

Emergency Consultation

Emergency consultations are held when an agency must respond quickly to a

natural disaster or other calamity (50 CFR § 402.05). When an emergency action is

required that may affect listed species or critical habitat, the agency would contact the

Service for advice on minimizing effects of the response. After the response, the
SECTION 2 ENDANGERED SPECIES ACT

22 Take--to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to

engage in any such conduct (section 3 of the ESA--definitions). Harm means an act that actually kills or

injures wildlife, and may include significant habitat modification or degradation where it actually kills or

injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or

sheltering (50 CFR § 17.3, § 222.102). 

Also see Final Rule: Endangered and Threatened Wildlife and Plants; Definition of "Harm,"

Federal Register, Vol. 64, No. 215, p. 60727, November 8, 1999 (http://www.nwr.noaa.gov/1salmon/

salmesa/pubs/harmrule.pdf).

Page 8 Hydropower Licensing and Endangered Species 

agency would initiate formal consultation with the Service and the Service would issue

an after-the-fact biological opinion documenting the effects of the emergency on listed

species and critical habitat.

2.3 Section 9–Prohibition of Take

Section 9(a)(1) makes it illegal to take22 an endangered species of fish or wildlife. 

The take prohibition has been applied to most threatened species by regulation.

The ESA applies a different take standard to plant species [(section 9(a)(2)]. 

Take generally does not apply to endangered plant species unless they are removed

from or destroyed on federal lands or taken in knowing violation of state laws or

regulations. Take prohibitions more narrowly apply to threatened plant species (see 50

CFR 17.71).

2.4 Section 10– Permits to Take

Scientific and Conservation Permits

A section 10(a)(1)(A) permit may be required if an activity designed to further the

conservation of a listed species will result in the direct take, result in the capture or

handling, or significantly modify the behavior of a listed species. These activities can

include surveys to determine species distribution, nest monitoring, hatchery operation,

capture and release of listed species, etc. Applicants should contact the Service to

determine if a permit is needed for their activities.
ENDANGERED SPECIES ACT SECTION 2

23 Incidental take--refers to takings that result from, but are not the purpose of, carrying out an

otherwise lawful activity conducted by a federal agency or applicant (50 CFR § 402.02).

24 See Rock Island (FERC Project No. 943), Rocky Reach (FERC Project No. 2145), and Wells

(FERC Project No. 2149) Projects.

25 U.S. Fish and Wildlife Service and National Marine Fisheries Service. 1996. Habitat

Conservation Planning Handbook. November 1996. (http://endangered.fws.gov/hcp/hcpbook.htm); Final

HCP Handbook Addendum (http://endangered.fws.gov/hcp/final_notice.pdf).

Hydropower Licensing and Endangered Species Page 9

Incidental Take Permits

An incidental take23 permit issued under section 10(a)(1)(B) authorizes take of

listed species incidental to the purpose of the action. Similar take protection can also

be granted through section 4(d) and section 7. A habitat conservation plan (HCP) that,

among other things, ensures that the effects of the incidental take are minimized and

mitigated to the extent practicable is prepared to support the application. If not

categorically excluded, the Service must issue an environmental assessment (EA) or

environmental impact statement (EIS) and conduct intra-Service endangered species

consultation before deciding on issuance of the permit. 

Section 10 permits have rarely been applied to hydropower licensing actions

because the federal nexus invokes the section 7 process instead. HCPs, however,

have been developed for hydropower projects in a few cases.24 HCPs may allow

licensees more flexibility to craft innovative solutions, provide greater certainty, and

provide for greater stakeholder involvement. The HCP can also cover species not yet

listed, providing licensees protection in the event new species do become listed. 

Applicants may wish to consult with the Service and the Commission staff to determine

the appropriateness of HCPs for their actions, including the conducting of pre-filing

studies. Additional information on HCPs can be found in the Services' HCP

handbook.25 The future of HCPs in hydropower licensing is uncertain, and is not

discussed further in this report.

Experimental Populations

An experimental population is a geographically described group of reintroduced

plants or animals that is isolated from other existing populations of the species [section

10(j) of the ESA]. Members of the experimental population are considered to be

threatened under the ESA, and thus, can have special regulations written for them

under section 4(d). In addition, if the experimental population is determined to be

"nonessential" to the survival of the species, for some activities the experimental

population is treated like a species that is proposed for listing as threatened or
SECTION 2 ENDANGERED SPECIES ACT

Page 10 Hydropower Licensing and Endangered Species 

endangered. In other words, the nonessential experimental population is not given the

full protection of the ESA. 

2.5 Section 11–Citizen Lawsuits

Any person (plaintiff) may file a citizen suit to compel another person, company,

or governmental entity (defendant) to comply with the ESA. The plaintiff must give the

defendant 60 days notice (notice of intent to sue) to allow the defendant an opportunity

to take corrective actions if needed. 

Section 11 also provides for the civil and criminal penalties for knowing violations

of the ESA.
ENDANGERED SPECIES ACT SECTION 2

Hydropower Licensing and Endangered Species Page 11

3

Pre-filing Consultation

The Commission's pre-filing consultation process (18 CFR § 4.38 for licenses;18

CFR § 16.8 for relicenses) is used by applicants and licensees to develop information

necessary to develop a complete license application, based on the input from agencies,

tribes, non-governmental organizations, and the public. The major steps performed by

an applicant include preparing an initial consultation document, holding a joint meeting

and site visit, conducting studies, and preparing draft and final license applications. 

It is important to note the distinction between the Commission's consultation

regulations and endangered species consultation requirements. The Commission

requires applicants to consult with the Service and other resource agencies during

preparation of the application and during development of information required by

additional information requests and license articles. Although the Service provides

applicants with technical advice and review on endangered species issues, the process

is distinct from the endangered species formal consultation process. Under section 7 of

the ESA, it is the Commission's responsibility to consult with the Service. As discussed

in section 3.2, the Commission can designate an applicant to conduct informal

consultation, but only the Commission can enter into formal consultation with the

Service. The ITF procedures attempt to better coordinate the FPA pre-filing

consultation process with the section 7 consultation process.

The Commission’s pre-filing consultation process provides an opportunity for

applicants and the Service to identify listed species issues early in the process. During

this phase, applicants should consult with the Service to determine: (1) if any listed or

proposed species are found in the project area; (2) the need for surveys or studies on

the effects of the project on known species; and (3) if any measures to protect or

enhance the species are needed. It is wise for applicants to consider proposed species

as well as listed species to avoid delays if the species should become listed.
SECTION 3 PRE-FILING CONSULTATION

Page 12 Hydropower Licensing and Endangered Species 

Early identification of issues can increase the likelihood of finding an option that

satisfies both species protection and project purposes. Further, providing good

information on the distribution of listed species prevents delays later in the process and

provides better information to be used during section 7 consultation, resulting in more

specific recommendations. The ultimate goal should be to resolve issues, to the extent

possible, to simplify any section 7 consultation that the Commission conducts after the

application is filed.

The pre-filing process has not always resulted in sufficient information to address

ESA issues, resulting in delay. Endangered species issues were not always evaluated

in the context of the entire project. The voluntary process developed by the ITF is

specifically designed to use the informal ESA consultation process and the existing

steps of the pre-filing FPA consultation process to identify and avoid potential conflicts

with the needs of federally listed species early in the licensing process, as well as to

provide an opportunity for early coordination among involved parties. The goal is to

reduce potential effects to listed species and designated critical habitat to the point

where adverse effects are not likely, thus eliminating the need to complete formal

consultation, or to develop a project design and effects analysis that can undergo

formal consultation more efficiently. 

Detailed information on the coordination of the steps of the FPA pre-filing

process with the endangered species process is found in figure 2 and accompanying

text. 

3.1 Coordination Meeting

 A coordination meeting is an early meeting with the Service to discuss

expectations and schedules, availability of existing information and need for additional

information, and potential impacts and protective measures. Applicants are strongly

encouraged to schedule such a meeting with the Service.
ENDANGERED SPECIES ACT SECTION 2

Hydropower Licensing and Endangered Species Page 13

Figure 2. Coordination of FERC pre-filing consultation and endangered species

consultation (Source: ITF Report, appendix I, figure 1).
SECTION 3 PRE-FILING CONSULTATION

Page 14 Hydropower Licensing and Endangered Species 

Pre-filing Consultation

The steps described below refer to the stages represented by each box in Figure 2, "Coordination of

FERC Pre-Filing Consultation Process and Endangered Species Consultation" (Source ITF Report,

appendix I). 

BOX 1--Upon request of the applicant, and if the Federal Energy Regulatory Commission (FERC)

determines that the following process is appropriate, FERC will provide the Service and the

applicant with a letter designating the applicant as a non-federal representative to respond to ESA

section 7 consultation matters on behalf of FERC. This letter will describe the roles and

responsibilities of the non-federal representative, which include conducting studies, developing and

supplying information, attending meetings, ensuring that pertinent ESA information is maintained in

a project file, developing a draft Biological Assessment (BA), participating in informal consultation

with the Service, and keeping FERC apprised of its actions. Additionally, the letter will establish a

point of contact within FERC who will guide the non-federal representative and review and evaluate

information prepared by the non-federal representative, as appropriate.

If appropriate, the Service should establish a FERC Team – including staff who work on the FERC

hydropower project and staff who address endangered and threatened species and ESA

compliance – to coordinate activities throughout the pre-filing and post-filing licensing process.

The non-federal representative should contact the Service to schedule a coordination meeting to

identify the expectations of each party and coordinate the information needed for the hydro licensing

and ESA consultation processes. At this stage (or earlier), the non-federal representative should

request from the Service a list of any listed or proposed species, or designated or proposed critical

habitat that may be in the area affected by the proposed project, as well as any candidate species

that are likely to become listed during the licensing process. Modifications to this list

(delisting/added species, etc.) may be made, as needed, throughout the licensing proceedings. 

If a coordination meeting is warranted it should be held as early as possible. During this meeting,

participants also will begin identifying information that will be needed for section 7 consultation

which may include, among other things: (a) a description of the project, including location maps and

project drawings; (b) a description of listed species that may be affected in the project's action area;

(c) information related to the ESA baseline; (d) a list of existing scientific information/studies; (e)

identification of needed scientific information/studies; (f) identification of activities that may be

interrelated or interdependent with the proposed project; (g) identification of effects of the project on

listed and proposed species, including direct and indirect effects of the project, any interrelated or

interdependent actions, as well as any cumulative effects; (h) potential conservation actions and

operational criteria that can be incorporated into the project to avoid or minimize effects on listed

and proposed species; and (i) information on the legal, economic, and technical feasibility of such

actions and criteria. Because there are sometimes disagreements about what information is

needed, parties are encouraged to initiate a dialogue on these issues early in the consultation

process.

BOX 1A--In its FPA initial consultation package [18 CFR 4.38(b)(1) or 16.8(b)(1)], a prospective 
ENDANGERED SPECIES ACT SECTION 2

Hydropower Licensing and Endangered Species Page 15

license applicant (hereafter referred to as the “non-federal representative”) should include, as

appropriate, information on threatened, endangered, proposed, and candidate species and any

designated, or proposed critical habitat (“T&E species”), potential effects of the project on T&E

species, and proposed resource measures for T&E species.

Although not required, applicants are encouraged to include consideration of proposed species and

proposed critical habitat, as well as any candidate species that are likely to become listed during the

licensing process, together with listed species and designated critical habitat.

BOX 1B--At the joint meeting during the first stage of pre-filing FPA consultation, the non-federal

representative should request the Service, tribes, non-governmental organizations, and others to

identify any concerns about studies, project effects, and proposed resource measures related to

T&E species. In addition, applicants are encouraged to coordinate with agencies and other

stakeholders involved in other federal and non-federal activities – including FERC licensing

activities – within the same watershed.

BOX 1C--After reviewing the non-federal representative's initial consultation package and after the

joint meeting, the Service should provide the non-federal representative with any pertinent

information it has on T&E species in the action area, or where to get it. The Service also shall: (a)

discuss its understanding of the resource issues related to T&E species; (b) identify potential project

effects, including direct, indirect or cumulative effects; (c) recommend studies necessary to comply

with the ESA; (d) provide technical assistance on needed study plans, checkpoints, and appropriate

methodologies; and (e) provide guidance on ways to improve treatment of those issues in the

package as appropriate. 

BOX 1D--If the non-federal representative elects not to conduct studies that were recommended by

the Service, it should meet with the Service to attempt to resolve any dispute.

BOX 1E--As the studies are completed, the non-federal representative should provide and discuss

the information obtained by the studies with the Service. FERC also should be supplied with this

information and provided the opportunity to participate in any discussions.

BOX 1F--When the non-federal representative submits its draft license application to the resource

agencies and FERC, the non-federal representative may include its draft Biological Assessment

prepared during informal consultation. All study results gathered to date should be included in the

draft application and/or draft BA, along with any proposed conservation, protection, or enhancement

measures.

BOX 1G--If a draft BA is included with the draft license application, the Service will provide its

comments on whether the draft BA satisfies requirements of the ESA and ESA regulations. FERC

will provide comments as appropriate. The non-federal representative is encouraged to consider

the Service's and FERC's comments when revising the draft BA. 

BOX 1H--If the non-federal representative holds a meeting to discuss the draft license application,

the non-federal representative will include discussion of ESA issues, as appropriate. If needed, the

Service will offer additional informal ESA consultation assistance at this time.
SECTION 3 PRE-FILING CONSULTATION

26 Designated non-federal representative–a person designated by the federal agency as its

representative to conduct informal consultation and/or to prepare any biological assessment (50 CFR §

402.02).

Page 16 Hydropower Licensing and Endangered Species 

3.2 Designation of Non-federal Representative

A very important step is for applicants to request the Commission to designate

them as a non-federal representative26 for the purpose of conducting informal

consultation (see 50 CFR 402.08) (exhibit 1). This will help ensure full participation by

Service endangered species staff during FPA pre-filing consultation. Upon written

request, the Commission will issue a letter to the Service designating the applicant

(exhibit 1) and designating a Commission contact. 

3.3 Endangered Species Surveys

Need for Surveys--Surveys are often, but not always, needed to identify the

presence of listed, proposed, or candidate species and determine the effects, if any, of 

project construction and operation on the species. Surveys may not be needed if no

species, habitat, or biotic communities of concern were identified in a literature search

or after consultation with the Service; no suitable habitat for suspected species exists;

the location of biological resources of concern are already known; a species potentially

occurs nearby but the action is designed to avoid impacts; or habitat would not be

affected in any way by construction, operation, maintenance, or recreational use. 

Consult with the Service about the need for surveys.

Developing a study plan prior to fieldwork is useful. Surveys should be

consistent with approved survey protocols where they exist and must be conducted by

qualified biologists. Applicants should consult with the Service prior to conducting the

surveys and/or study plan. A poorly executed survey for a species may result in the

need for another survey the following year. Applicants should also get Service

comments on the survey results.

Permits–As previously discussed in section 2.4, surveys for federally listed

species may require a section 10 collection permit. Check with the Service. States

may also require permits.

Timing--Surveys must be conducted when target species will be potentially

present (e.g., migratory species) and identifiable (e.g., certain plant species) or during 
ENDANGERED SPECIES ACT SECTION 2

Hydropower Licensing and Endangered Species Page 17

Exhibit 1. Sample letters for designation of non-federal representative.

Suggested Language for Letter Requesting Designation as Non-federal Representative

ABC, licensee for the DCF Project, is preparing an application to relicense the project. The

project may potentially affect listed species and designated critical habitat.

[include background as necessary]

Therefore, ABC requests that the Commission designate ABC as the Commission's nonfederal representative for the purpose of initiating informal consultation with the U.S. Fish and

Wildlife Service and National Marine Fisheries Service with regard to preparation of the relicense

application. 

For more information, please contact Mr. Robert Jones at 503-111-0101.

Suggested Language for Letter to Service Granting Request

In a letter of December 7, 2000, Hydro Inc. (Hydro) asked the Federal Energy Regulatory

Commission (Commission) to designate it as the non-federal representative for the purpose of

informal consultation with the U.S. Fish & Wildlife Service pursuant to section 7 of the Endangered

Species Act for the above projects. By this letter, the Commission designates Hydro as the

Commission's non-federal representative to conduct informal consultation with your agency.

The role of the non-federal representative includes conducting studies, developing and

supplying information, attending meetings, ensuring that pertinent endangered species information

is maintained in a project file, developing a draft biological assessment, participating in informal

consultation with the Service, and keeping FERC apprised of its actions. We recommend that

Hydro set up a meeting with your office to discuss how the informal consultation will be conducted.

The FERC contact will be James Brown. If you have any questions please contact Mr.

Brown at (202) 219-2222; james.brown@ferc.fed.us.

CC: Applicant
SECTION 3 PRE-FILING CONSULTATION

Page 18 Hydropower Licensing and Endangered Species 

the period when impacts are expected to occur (e.g., seasonal construction activities). 

Fieldwork to evaluate habitat and potential for species occurrence can be conducted

throughout most of the year. If potential habitat is identified then follow-up surveys may

be necessary. Some species surveys may need to be conducted during more than one

season or more than one year.

Survey Methodology--Description of methodology should include: citation(s) of

formal survey protocol; any deviation from protocol, and rationale; methodology used if

no protocol exists; total effort (e.g., person hours or days); and spatial extent of survey

(should be large enough to cover areas potentially affected by the project's

construction, operation, and maintenance). Survey methodology should be coordinated

with the Service.

Survey Results--The survey report should include: survey dates; qualifications of

the surveyors; detailed description of survey methodology (see above); detailed maps

and specific location data for each finding (number, life stage, behavior, etc.). 

Locations for certain species may be sensitive; this information should not be mapped

in a report that will become a public document. In this situation send maps, under

separate cover, to the reviewing agency (and FERC staff as appropriate). For these

species, location information in public documents should be general (e.g., "A bald eagle

nest occurs close enough to the project to be potentially affected by blasting.").

3.4 Studies

Applicants are required to conduct all reasonable studies and obtain all

reasonable information requested by resource agencies and tribes that are necessary

for the Commission to make an informed decision regarding the merits of the

application. Applicants must conduct studies before filing of the application [18

CFR § 4.38(c)(1) for licenses; 16.8 CFR § (c)(1) for relicenses], if the results: 

• would influence the financial or technical feasibility of the project

• are needed to determine: the design or location of project features;

reasonable alternatives to the project; project impacts on important natural

resources (e.g., resource surveys); or suitable mitigation or enhancement

measures

• are needed to minimize impact on significant resources (e.g., listed

species)
ENDANGERED SPECIES ACT SECTION 2

27 Biological assessment--evaluates the potential impacts of the action on listed or proposed

species or designated or proposed critical habitat and concludes whether such species or habitat are

likely to be adversely affected by the action. 

Hydropower Licensing and Endangered Species Page 19

Some studies may have the potential to result in the incidental take of listed

species. Applicants should work with the Service to design a study that would avoid

potential adverse effects or obtain a section 10 permit if necessary. 

3.5 Preparation of a Biological Assessment

Preparation of a draft biological assessment (BA)27 by the non-federal

representative can be an important step in the licensing process. Although not

mandatory, except where major new construction is proposed, a BA is highly

recommended where listed species may be affected by the licensing action because

the BA helps identify and resolve issues early. See section 4.3 and appendix D for

guidance on preparing a BA. If a BA is not prepared, then the endangered species

information is included in the applicant's environmental report, applicant-prepared

environmental assessment, or third-party contract EIS, and supporting documents. 

3.6 Summary of Participants' Roles

Applicant's Role--Under designation as a non-federal representative, applicants

are responsible for conducting studies, developing and supplying information, attending

meetings, ensuring that pertinent ESA information is maintained in a project file,

preparing a draft biological assessment (optional), participating in informal consultation

with the Service, and keeping the Commission staff apprised of their actions. 

Service's Role--The Service will work with the applicant by: identifying existing

information; identifying information that will be needed for section 7 consultation;

recommending studies; providing technical assistance on study plans and

methodologies, etc.; issuing necessary permits; identifying concerns about studies,

project effects, and proposed resource measures; discussing the results of studies;

providing comments on draft and final applications and draft biological assessments (if

prepared); and participating in settlement discussions. The Service will coordinate

hydropower and ESA reviews.

FERC Staff Role--During pre-filing consultation, staff will provide guidance and

supervision to the non-federal representative, as needed, participate in meetings and

discussions (such as dispute resolution meetings), as appropriate, answer questions,

and review and provide comments on any draft BA, if prepared. Staff should also

receive copies of ESA-related information (correspondence, study plans, study results,
28 See the Commission's regulations [18 CFR § 4.34(i) and Order no. 596]. 

Page 20 Hydropower Licensing and Endangered Species 

etc.). The Commission's off-the-record communications rule is not in effect during the

pre-filing process (18 CFR § 2201).

3.7 Alternative Licensing Process

The ALP28 utilizes a more collaborative approach than required by the traditional

pre-filing process to facilitate greater participation by, and improve communication

among, the prospective applicant, resource agencies, non-governmental organizations,

Indian tribes, the public, and Commission staff. It attempts to combine the pre-filing

consultation process, the environmental assessment, other federal and state statutory

reviews (including ESA), and, where desired, settlement negotiations. The collaborative

aspects of the ALP can be applied to the traditional process as well.

The ALP, although more flexible, generally requires the same steps as the

traditional process, though the timing is altered. For example, scoping is conducted

pre-filing, opportunities for additional study requests are provided pre-filing, and an

applicant-prepared EA or third-party contract EIS replaces the exhibit E (environmental

report). FERC staff is more involved than under the traditional process.

ESA consultation should be integrated into the structure of the alternative

process (studies, development of protection measures, etc.) so that endangered

species issues are considered early in the process and in the context of other issues

and resources, and all participants are aware of the Service's statutory responsibilities

and potential conflicts and constraints. 
POST-FILING PROCESS SECTION 4

29 In some cases, a single EA may be prepared instead of a separate draft EA (DEA) and final

EA (FEA). Comments received in response to the EA will be addressed in the license order. Further, a

revised scoping document (scoping document 2) may not always be prepared.

30 18 CFR §§ 4.41(f), 4.51(f), 4.61(d), 4.92(e), and 4.107(e).

Hydropower Licensing and Endangered Species Page 21

4

 Post-filing Process

The major steps of the post-filing process include adequacy review of the

application, scoping (traditional process only), preparation of draft and final

environmental documents, the section 10(j) conflict resolution process, and issuance of

the license decision. The Service will use existing opportunities in the licensing process

to advise the Commission on the adequacy of information, scope of effects, expected

impacts, and needed protection measures. A look at the steps in the process and how

ESA issues are integrated are outlined in figure 3 and accompanying text.29

4.1 Reviewing the License Application

The Commission's regulations30 require all license or exemption applicants to

consult with the Service, state whether threatened and endangered species are found

in the project area, and discuss: (1) the project's impacts on the species, (2) protective

measures recommended by the agencies, and (3) protective measures proposed by the

applicant. We (FERC staff) must make sure any lists of species in the application are

current and the applicant has consulted the Service about the accuracy of the list. 

Most importantly, we must ensure that there is enough information to

independently analyze whether the proposed project may affect any threatened and

endangered species and, if there are effects, what the effects would be and what

protective measures are needed. Give careful attention to the Service's comments on 

the draft license application. Make sure that any surveys and studies were filed with the

application.
SECTION 4 POST-FILING PROCESS

Page 22 Hydropower Licensing and Endangered Species 

Figure 3. Coordination of FERC post-filing process and endangered species

consultation (page 1 of 2) (Source: ITF Report, appendix I, figure 2).
POST-FILING PROCESS SECTION 4

Hydropower Licensing and Endangered Species Page 23

Figure 3 (cont.). Coordination of FERC post-filing process and endangered species

consultation (page 2 of 2) (Source: ITF Report, appendix I, 

figure 2).
SECTION 4 POST-FILING PROCESS

Page 24 Hydropower Licensing and Endangered Species 

Post-filing Process

The steps described below refer to the stages represented by each box in "Figure 3, Coordination of

FERC Post-Filing Process and Endangered Species Consultation" (Source: ITF Report, appendix I). 

If a draft BA is filed with the license application and FERC and the Service conclude that the draft BA

is satisfactory, it ordinarily should not be necessary to address ESA issues in Boxes 2 through 13

below although they will be addressed in subsequent stages of FPA and National Environmental

Policy Act (NEPA) analysis. However, if the pre-filing ESA consultation process is not used, or if

additional information is needed, Boxes 2 through 13 should be used.

BOX 2-The license application filed with FERC and served on the agencies may be accompanied by

a revised draft Biological Assessment of the preferred alternative, including all relevant components

of the applicant's proposal and any associated settlement agreement. This revised draft Biological

Assessment will include the results of studies and information gathered during the pre-filing process. 

BOX 3-In response to FERC’s tendering notice, the Service may provide FERC formal written

comments on the studies completed and may request any additional studies they believe are needed

for section 7 consultation, including an explanation of why the information is presently needed, why

the available information does not satisfy that need, and why any additional studies were not

requested earlier.

BOX 6-In NEPA Scoping Document 1, FERC will identify what T&E species may be present and

what the issues are regarding those species.

BOX 7-In response to any additional information or studies requested by the Service, FERC will

review such requests and solicit additional information from the non-federal representative, as

appropriate. [See Adequacy of Information section of the ITF Report (appendix A)] FERC response

may be deferred to BOX 10, as appropriate.

BOX 8--At the agency scoping meeting, FERC and the Service will discuss whether the species list

is accurate and whether there is sufficient information to analyze project effects on T&E species. 

FERC and the Service will also discuss any additional information that may be needed and any

recommended measures for T&E species. To assist FERC in meeting its ESA responsibilities, the

Service will bring to FERC's attention any information it has regarding the scope of effects of the

proposed action, including any direct, indirect, and cumulative effects that it believes should be

analyzed, as well as any interrelated or interdependent actions that it believes should be considered. 

[See Adequacy of Information section of the ITF Report (appendix A)]. 

BOX 9--In response to the FERC scoping notice, the Service will provide comments on, among other

topics: (a) information gathered to date and any remaining information and/or additional studies that

still may be required to satisfy section 7 consultation requirements; (b) alternatives to be considered

in the biological assessment/evaluation; (c) impacts to be evaluated; (d) any conservation measures 
POST-FILING PROCESS SECTION 4

Hydropower Licensing and Endangered Species Page 25

to be evaluated, and, (e) the accuracy of the species list. In providing these comments, the Service

will will be as specific as possible, particularly when identifying potential impacts (i.e., direct, indirect

or cumulative effects).

BOX 10--FERC will review Service comments and obtain information requested by the Service, as

appropriate. [See Adequacy of Information section of the ITF Report (appendix A)]. In Scoping

Document 2, FERC will update the issues section of the document, as appropriate, to reflect any

comments on T&E species. If the second Scoping Document and/or the draft BA (if prepared) do

not satisfy the Service's concerns regarding section 7 consultation or information gathering, the

Service will provide FERC with a letter clearly, and as specifically as possible, explaining its ESArelated concerns and recommending ways to address these concerns.

BOX 11--The applicant will provide the Service with copies of any additional information filed with

FERC pertaining to listed species, as required by 18 C.F.R. section 4.34(b).

BOX 13--In response to FERC’s Ready for Environmental Analysis Notice, the Service will provide

its recommendations, comments, prescriptions, and terms and conditions pursuant to sections 4(e),

10(a), 10(j), and 18 of the FPA. Section 7 consultation may result in additional or different

measures. 

BOX 13a--If a NEPA clarification meeting is held (as described in the Interagency Task Force 

NEPA Report)–FERC and the Service will use this meeting to discuss the informaion needed t

to initiate consultation and the appropriateness of initiating formal ESA consultation at that time. 

Among other things, FERC and the Service will discuss whether there are any outstanding issues

regarding the specific geographic area that may be affected or the scope of effects of the proposed

action on listed species and their critical habitat. Such issues could also include, where applicable,

direct and indirect effects of the proposed action, cumulative effects, and the effects of any

interrelated or independent actions.

BOX 14--If formal consultation is appropriate, FERC will request initiation of formal consultation with

the Service at the time it issues its notice of availability of the draft EA/EIS. In most cases, FERC

will use the draft EA/EIS as its BA, as specified below. If the draft EA/EIS does not include a

discussion of ESA issues (e.g., because of a new ESA listing), FERC will prepare a separate

Biological Assessment.

Section 7 regulations distinguish the information required to initiate formal consultation under 50

CFR section 402.14(c) (the "initiation package") from the Biological Assessment. FERC prefers to

combine these two items in its draft EA/EIS. Therefore, to assist the Service in evaluating the

completeness of FERC's initiation package, FERC will provide a cover letter summarizing its

findings and providing specific page references to the chapters, sections, or pages of the draft

EA/EIS that contain the information required to initiate formal consultation. The intent of this letter is

to streamline the section 7 formal consultation by providing Service staff with the exact location and

precise page numbers within the NEPA documents where the specific information required for

consultation may be found. It is important that these references provide the Service an accurate

location of elements relevant to ESA compliance to help ensure that the Service and Commission 
SECTION 4 POST-FILING PROCESS

Page 26 Hydropower Licensing and Endangered Species 

can complete formal consultation within the time frames provided by the ESA regulations. With this

in mind, the cover letter should cite pages that contain information regarding the following: (1) the

action to be considered (generally, this will be the preferred alternative); (2) the specific area that

may be affected by the action; (3) any listed species or critical habitat that may be affected by the

action; (4) the manner in which the action may affect listed species or critical habitat, including any

direct, indirect, or cumulative effects; (5) relevant reports, including any EA, EIS, or biological

assessment (generally, this will be a list, because the reports will either be publicly available or will

already be part of the administrative record of the proceeding); and (6) any other relevant available

information on the action, affected species, or critical habitat. 

If a draft EA or EIS is prepared, FERC will include a separate section on ESA issues in the

document.

The Service will review FERC's initiation package and will inform FERC, within 30 days, whether it

contains sufficient information to initiate consultation. If the Service determines that sufficient

information is available or can be obtained during consultation, FERC and the Service will use the

ESA/10(j) integration process (see next section below) for consideration of ESA issues concurrently

with the FPA section 10(j) process. (See figure 7.) If the Service determines that the section 7

initiation package is not sufficient to initiate consultation, it will provide FERC with a written

explanation, including a description of the specific information lacking and make recommendations

regarding the manner by which such information might be obtained and presented. Upon mutual

agreement of the adequacy of the initiation package, the Service shall confirm immediate initiation

of formal consultation. If FERC and the Service are unable to agree, they will seek to resolve the

issue at a higher level within their respective agencies.

BOX 16--FERC will include its analysis of the results of the Service's Biological Opinion in its final

EA/EIS [or license order if BO is prepared after the final EA/EIS is issued].

BOX 17-FERC will include its analysis and discussion of ESA issues and any necessary license

conditions for the protection of listed species and their critical habitat in its license order.

Additional Study Requests

Additional study requests are due within 60 days from filing of the license

application with the Commission. The Service may request additional studies they

believe are needed for section 7 consultation. Staff should take these requests into

consideration when developing additional information requests for the project (see

additional information requests section below).

Scoping

The scoping document should list the listed, proposed, and candidate species

and designated and proposed critical habitats that will be considered in the

environmental analysis and a list of issues associated with those species or habitats. 
POST-FILING PROCESS SECTION 4

Hydropower Licensing and Endangered Species Page 27

The Service will provide comments

on, among other topics: (a) information

gathered to date and any remaining

information and/or additional studies that

still may be required to satisfy section 7

consultation requirements; (b) alternatives

to be considered in the biological

assessment/evaluation; (c) impacts to be

evaluated; (d) any conservation measures

to be evaluated, and (e) the accuracy of

the species list.

Additional Information Requests

Staff should ask the applicant to provide us any information we will need to do

our analysis and to carry out our section 7 responsibilities, including any necessary

surveys (exhibit 2). Ultimately, we must ensure that we have the best scientific and

commercial data available. We should have at least conceptual information for any

measures or plans that might have the potential to affect species (e.g., recreational

development plans) or plans to protect listed species and their habitat (e.g., erosion

control plans, bald eagle management plan). We should also ensure that we have

adequate information on proposed and candidate species.

We can designate applicants to be non-federal representatives post-filing to

conduct informal consultation and prepare a BA, as previously discussed for pre-filing

consultation (see section 3.2).

If a species becomes proposed or listed after our initial review of the application,

we must request the necessary information as soon after the listing as possible to avoid

delays in the licensing process.

 Handling Confidential Information

When we need additional information, but don't want to disclose the location of

threatened and endangered species to the general public because of the possibility of

disturbance, add to the additional information request the following paragraph:

"The agencies may regard the specific locations of (list species) as sensitive

information. 

If they do, when you file your report you should file only five copies of the maps we ask

for in item ( ).

Scoping Document Input

Be as specific as possible. 

•"Effects of reduced flows in the bypassed

reach on pools used by breeding red-legged

frogs and measures needed to protect the frog"

instead of 

•"Effects of project operation on red-legged

frogs"
SECTION 4 POST-FILING PROCESS

Page 28 Hydropower Licensing and Endangered Species 

File the five copies this way:

• Submit the sensitive information directly to (name, title, mail stop),

Federal Energy Regulatory Commission, Division of Environmental and

Engineering Review, Office of Energy Projects, Washington, D.C. 

20426.' 

• Explain in your cover letter to the Secretary of the Commission that

sensitive endangered species information was filed directly with

Commission staff, and briefly describe the information without reference

to the sensitive information." 

Exhibit 2. Endangered species surveys information request.

Under section 7 of the Endangered Species Act, we must evaluate any potential impacts on

federally listed species before we decide on your license application.

After consulting with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries

Service (NMFS) and the (state fish and wildlife agency) for guidance on survey methods, you must

conduct a survey of the project area for the presence of (list species). Your survey, which must be

conducted by a qualified (appropriate field) biologist, should include all areas of suitable habitat

within the project boundary and areas directly or indirectly affected by your project's construction and

operation. 

After consulting with (FWS or NMFS) and the (state fish and wildlife agency), give us the

following information:

(a) documentation that you consulted with the agencies before conducting the survey;

(b) a description of the methods, including a map showing the survey area and the dates and time(s)

of the surveys; 

(c) the results of your survey of the areas affected by the construction and operation of the proposed

project for the presence of (list species), including the date, time, activity, and location of any

sightings;

(d) a description of the effect of project construction and operation on any (list species) found in the

project area, specifically addressing (list primary effects);

(e) a detailed plan to protect or enhance the (list species), if found in the project area; and

(f) comments and recommendations received from FWS or NMFS and the (state fish and wildlife

agency) on items b through e.
POST-FILING PROCESS SECTION 4

31 Even though the species list requirement applies only to major construction projects (50 CFR

§ 402.12), it should be routinely done for all projects.

32 Also see the section of ITF Report on off-the-record communications (appendix A).

33 A "biological assessment" is only required for a major construction activity [an activity that

involves construction and is a major federal action significantly affecting the quality of the human

environment (i.e., typically an EIS project)]. In practice, however, we typically prepare the equivalent of a

biological assessment for non-EIS projects (to satisfy the requirements of NEPA and FPA).

Hydropower Licensing and Endangered Species Page 29

Requesting the Species List

The list of species the applicant and agencies developed during pre-filing

consultation or lists we develop through additional information requests may be

outdated by new listings or by new information on the distribution of species. When we

are ready to issue the notice that the application is ready for environmental analysis, we

should make sure the list is up-to-date.31

If the species list is more than 6 months old, we should ask for a revised list from

the Service or prepare a list and ask the Service to agree (exhibit 3) The Service has

30 days to respond. Some Service field offices will provide a revised list over the

telephone. When they do, ask for a confirming letter. Many FWS field offices have

species lists by county on their internet sites. Although they are for information

purposes, they are useful to update official lists.

4.2 Meetings

Meetings or teleconferences with the Service and/or the applicant to discuss

information needs, protection options, or alternatives, are often important to ensure that

consultation can occur without delay. Other than for strictly procedural matters, all

meetings must be consistent with the Commission's off-the-record communications rule

(18 CFR § 385.2201).32 Intervenors must be invited to attend and should be given at

least 15-days advance notice. Interested parties should be permitted to provide

relevant information, consistent with the limited purpose of the meeting or

teleconference. Summarize the results of the meeting, as appropriate.

4.3 Preparing The Biological Assessment

As discussed above, the BA33 is our analysis of the effects of the proposed

project on listed species and critical habitat. In most cases, the BA will be included in 

the draft EA or EIS. We can also issue the biological assessment as a separate, standalone document. We would do that if a species is listed after we've prepared the
SECTION 4 POST-FILING PROCESS

Page 30 Hydropower Licensing and Endangered Species 

environmental document; if the applicant prepared a biological assessment; if a more

in-depth analysis was needed to improve understanding of the issues; or when an

environmental document is not necessary. 

In cases where we prepare a separate BA along with a draft environmental

document, the write-up in the EA or EIS should summarize the information in the BA,

referencing the BA as appropriate. The BA can be attached to the EA or EIS.

If an applicant files a draft biological assessment either as part of the application

or as additional information, we can either take the information and incorporate it into

the environmental document, make any necessary modifications to the BA and issue it,

or adopt it and supplement it as necessary. In any case, we need to verify the

information and conclusions contained in the BA.

Biological Assessment Format

The format of a BA is at our discretion. Our assessment may include any or all

of the following (50 CFR § 402.12):

Exhibit 3. Suggested language for letter requesting species list.

We're reviewing the effects of this proposed project on threatened or endangered

species and their critical habitats.

As shown on the enclosed map, this project would be located on the _______ River, in

________ County, (state).

Please tell us if any of the following may be found in the project area:

• Federally listed threatened or endangered species

• Species proposed for listing as threatened or endangered

• Designated critical habitat

• Proposed critical habitat

• Candidate species

Please file your response (an original and eight copies) with __________, Secretary,

Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426. 

Please put the docket number, P-_____-___, on the first page of your response. If you have

any questions, please call __________ at (202) 219-______. 
POST-FILING PROCESS SECTION 4

34 Effects of the action–refers to the direct and indirect effects of an action on the species or

critical habitat, together with the effects of other activities that are interrelated or interdependent with that 

action, that will be added to the environmental baseline. The environmental baseline includes the past

and present impacts of all federal, state, or private actions and other human activities in the action area,

the anticipated impacts of all proposed federal projects in the action area that have already undergone

formal or early section 7 consultation, and the impact of state or private actions which are

contemporaneous with the consultation in process. Indirect effects are those that are caused by the

proposed action and are later in time, but still are reasonably certain to occur. Interrelated actions are

those that are part of a larger action and depend on the larger action for their justification.

Interdependent actions are those that have no independent utility apart from the action under

consideration (50 CFR § 402.02).

35 Cumulative effects--those effects of future state or private activities, not involving federal

activities, that are reasonably certain to occur within the area directly or indirectly affected by the

proposed action (50 CFR § 402.02). 

This definition differs from the Council on Environmental Quality definition in that it excludes

other future federal actions since they will be the subject of section 7 consultations when they are

proposed.

Hydropower Licensing and Endangered Species Page 31

• The results of on-site surveys

• The views of recognized experts

• A review of the literature and existing studies

• An analysis of the effects34 of the action on the species and habitat,

including any cumulative effects35

• Measures to minimize or avoid any potential impacts

• Opportunities for enhancing the species

• An analysis of any alternatives 

Since the BA also serves as the initiation package for formal consultation (see

section 4.4), it generally will include the following information [50 CFR § 402.14(c)]:

• A description of the action

• A description of the area that may be affected by the proposed action

• A description of any listed species or critical habitat that may be affected

by the proposed action
SECTION 4 POST-FILING PROCESS

Page 32 Hydropower Licensing and Endangered Species 

• A description of how the proposed action may affect any listed species or

critical habitat

• An analysis of cumulative effects

• Relevant reports, including any EAs, EISs, or biological assessments

• Any other available relevant information

Incorporating the BA into the Environmental Document

The analysis of the effects of the project on endangered species in the DEA or

draft EIS (DEIS) is included in a separate Threatened and Endangered Species

section. Appendix D includes specific guidance on what should be included in a standalone BA. This information is applicable to a BA that's incorporated into an

environmental document, as well. If no species are present in the project area, say so

and cite the Service's letter(s)--no additional input is needed.

The EA ("Endangered Species Act" section of the Consultation and Compliance

section) and EIS ("Relationship to Laws and Policies") should include a section that

briefly describes the consultation process used to address project effects on federally

listed or proposed species in the project vicinity (exhibit 4). It can reference the

analysis section of the EA or EIS, summarize the determination of effect for each listed

or proposed species, summarize any recommended measures, and detail the status of

consultation under the ESA.

Exhibit 4. Example of Endangered Species Act section in EA or EIS.

Endangered Species Act

Section 7 of the Endangered Species Act (ESA) requires federal agencies to ensure that

their actions are not likely to jeopardize the continued existence of endangered or threatened

species or result in the destruction or adverse modification of the critical habitat of such species. The

federally-listed threatened bald eagle (Haliaeetus leucocephalus) is known to occur in the project

area. We conclude that project operation, with staff-recommended measures, is not likely to

adversely affect the bald eagle or its habitat. Our analysis of project-related effects on the bald eagle

and its habitat is discussed in section V.C.4. We will request concurrence by the U.S. Fish and

Wildlife Service with our determination. 
POST-FILING PROCESS SECTION 4

36 Up-to-date information on which species are listed can be found at

http://ecos.fws.gov/webpage/ and http://www.nwr.noaa.gov/1salmon/salmesa/index.htm. For some

states, county lists are available from Natural Heritage Programs

(http://www.abi.org/nhp/us_programs.htm) or at FWS Regional Office web pages.

37 The FWS and NMFS each periodically publish a list of candidate species in the Federal

Register. Also see http://ecos.fws.gov/webpage/ and http://www.nmfs.noaa.gov/prot_res/

PR3/candidates/candidate.html.

Hydropower Licensing and Endangered Species Page 33

Preparing a Stand-alone Biological Assessment

See appendix D for guidance on the contents of a stand-alone BA.

What Do We Consider in our Biological Assessment?

The BA should address the following elements:

Listed and Proposed Species

The BA should address all listed and proposed species included in a species list

received from the Service.36 

Candidate Species

Candidate species are plants and animals for which FWS has sufficient

information on their biological status and threats to list but development of a proposed

listing is precluded by higher priority listing activities. NMFS defines candidate species

to include species whose status is of concern but more information is needed before

they can be proposed for listing.37

Candidate species receive no protection under the ESA. The ESA doesn't

require consultation for candidate species until they are proposed for listing, although

these are species that may warrant protection under the FPA or other laws. Federal

agencies are encouraged to consider the effects of their actions on candidate species

because the agencies must protect the species and the species' habitat if they are

listed.
SECTION 4 POST-FILING PROCESS

38 Species of concern--an informal term that refers to those species which the FWS believes

might be in need of concentrated conservation actions. Such conservation actions vary depending on

the health of the populations, as well as the degree and types of threats. At one extreme, there may only

need to be periodic monitoring of populations and threats to the species and its habitat. At the other

extreme, a species may need to be listed as a threatened or endangered species (FWS, Region 3).

39 Critical habitat listings can be accessed at http://ecos.fws.gov/webpage/ and

http://www.nwr.noaa.gov/1salmon/salmesa/index.htm.

40 Many recovery plans can be found at http://endangered.fws.gov/recovery/recplans/index.htm

and http://www.nmfs.noaa.gov/prot_res/PR3/recovery.html.

Page 34 Hydropower Licensing and Endangered Species 

Species of Concern

 Species of concern38 receive no legal protection and the species may never be

proposed for listing as a threatened or endangered species. Nonetheless, we should

evaluate effects on species of concern if they are known to occur in the project area.

Critical Habitat

Our findings dealing with critical habitat are made independent of the effect on

known individuals. Whether or not the critical habitat is occupied by the species is not a

factor in determining effect. 

Our analysis should consider the effects of the action on the principal biological

or physical constituent elements, within the defined area, that are essential to the

conservation of the species ("primary constituent elements"). These elements may

include roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetlands

or drylands, water quality or quantity, host species or plant pollinator species, geological

formations, vegetation type, tide, and specific soil types (50 CFR § 424.12). The

primary elements are usually specified in the final rule designating the critical habitat. 

We also must look at the indirect effects of the proposed action on critical habitat

located adjacent to the project area.

The critical habitat listings also could include examples of proposed actions that

could adversely modify critical habitat.39

Recovery Plans

If a recovery plan40 or other species management plan (e.g., the Forest Service's

spotted owl plan) has been prepared for a listed species, we should verify and

document consistency of the proposed action with the plan(s). We should also review
POST-FILING PROCESS SECTION 4

41 Major construction activity--a construction project (or other undertaking having similar physical

impacts) which is a major Federal action significantly affecting the quality of the human environment as

referred to in the National Environmental Policy Act (50 CFR § 402.02). This definition appears to

equate major construction activities with those requiring an EIS; however, not all projects requiring an

EIS would involve major construction activities.

Hydropower Licensing and Endangered Species Page 35

the plan(s) to determine if there are any measures that could be implemented by the

applicant to help conserve the species. Recovery plans may also include measures

that are the Commission's responsibility, such as "FERC should be encouraged ... to

promote activities to conserve Trillium persistens within project boundaries in the

Tallulah Gorge."

Habitat Conservation Plans

A proposed project could affect lands or measures included in an existing or

proposed HCP. The BA should evaluate consistency with the HCP.

Determining a Project's "Effect" on Species or Critical Habitat

In the DEA or DEIS or separate BA, we should clearly reach and support a

conclusion regarding the project's effects on listed and proposed species or designated

or proposed critical habitat in the context of the ESA. This would determine whether or

not we would need to enter into formal consultation or hold a conference with the

Service. 

We will ordinarily consult with the Service on the preferred alternative that we

identify in the environmental document.

Listed species or designated critical habitat (figure 4)

For listed species or designated critical habitat, we reach one of these

conclusions:

No effect--No effect means that no positive or negative effects are expected. 

For proposed actions not involving major construction activities,41 a no-effect

finding by us ends our responsibilities under the ESA, although we can ask for

concurrence. For major construction activities, the Service has 30 days to respond to

our no effect finding, and can request that we initiate formal consultation if it disagrees.
SECTION 4 POST-FILING PROCESS

42 Beneficial Effects--contemporaneous positive effects without any adverse effects to the

species or critical habitat (Consultation Handbook). 

43 Discountable Effects--effects that are extremely unlikely to occur and would not be expected

to occur (Consultation Handbook).

44 Insignificant Effects--Insignificant effects relate to the size of the impact and would not be able

to be meaningfully measured, detected, or evaluated (Consultation Handbook).

Page 36 Hydropower Licensing and Endangered Species 

Figure 4. Overview of section 7 process for listed species and designated critical

habitat.

Not likely to adversely affect--A "not likely to adversely affect" finding means

that all effects are either beneficial,42 discountable,43 or insignificant44 effects.

With the written concurrence of the Service, this finding ends our responsibilities

under the ESA for both major construction projects (as part of the biological

assessment process) and non-major construction projects (as part of informal

consultation) (exhibit 5). The Service usually responds within 30 days. Send the

request by overnight mail and check to confirm receipt by the Service.

After 30 days, contact the Service about the status of the request. A meeting

may be valuable to determine whether we should proceed to formal consultation (see

section 4.4).
POST-FILING PROCESS SECTION 4

Hydropower Licensing and Endangered Species Page 37

If the Service doesn't agree, it may suggest modifications to the action that would

avoid the likelihood of an adverse effect, request additional information, or it may

request us to enter into formal consultation. If we adopt their suggested measures, we

don't have to enter into formal consultation. We can also provide additional information

to better support our conclusions. Otherwise, we must enter into formal consultation

(see section 4.4).

Likely to adversely affect--Likely to adversely affect means that all adverse

effects can't be avoided (even if minor or minimal) or incidental take is anticipated to

occur. In cases where the overall effects would be beneficial, but some adverse effects

would still result, the proper determination would be "likely to adversely affect."

If we conclude in the EA or EIS that the proposed project would adversely affect

a listed species or critical habitat, then we must enter into formal consultation with the

Service (see section 4.4).

Exhibit 5. Suggested language for request for concurrence letter .

[send by overnight mail]

The _____ Project is located on the ________ River in ______ County, (state). We

address the project's effects on threatened or endangered species and/or critical habitat in the

enclosed (draft environmental assessment, draft environmental impact statement, or biological

assessment, as appropriate). For a DEA or DEIS, add: The preferred alternative (identify

alternative) is described on pages ___ (Sections ___, figure ___), a description of endangered

species potentially affected by the project is found on pages ___ (Section ___), and a discussion of

impacts and determinations of effect are found on pages ____ (Section ____). --or for longer

discussions-- The location of the endangered species information is provided in the attachment.

[NOTE: an example of the attachment is found in Exhibit 6.]

We conclude that (describe type of proposed action) the project, with our recommended

measures, is "not likely to adversely affect" the (list species and critical habitat, as appropriate) and

would have no effect on (list species and critical habitat, as appropriate). Therefore, we do not

believe that formal consultation is required. Please tell us in writing within 30 days from the date of

receipt of this letter if you do or do not agree with our assessment. Should you need to informally

discuss concerns before making your determination, please contact ________ at (202) 219- ____ to

indicate your interest in initiating a teleconference with all parties on this issue.

Please file your response (an original and eight copies) with _________, Secretary, Federal

Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426. Please put the

docket number, P-_____-___, on the first page of your response. If you have any questions, please

contact _________________.
SECTION 4 POST-FILING PROCESS

Page 38 Hydropower Licensing and Endangered Species 

Figure 5. Overview of section 7

process for proposed

species and proposed

critical habitat.

Proposed species or critical

habitat (figure 5)

For proposed species or proposed

critical habitat, we reach one of these

conclusions:

Likely to jeopardize the

continued existence of proposed

species or destroy or adversely modify

proposed critical habitat--We must

initiate a conference with the Service to

identify alternative actions or measures

that would avoid or minimize adverse

effects to proposed species or proposed

critical habitat (see section 4.5).

4.4 Formal Consultation

The steps of the formal

consultation process are outlined in figure

6 and discussed below.

Sufficiency of Information to Initiate Consultation

If we and the Service disagree about what constitutes the best scientific and

commercial data available for the purposes of initiating consultation, we will schedule a

meeting with the Service, or use NEPA clarification meeting to discuss what information

is available and needed to initiate consultation [see adequacy of information section of

ITF Report (appendix A)].

Initiation Package

 When we determine that a listed species or designated critical habitat is likely

to be adversely affected and we and the Service agree that information is sufficient to

initiate consultation, we send the Service a copy of our analysis [either included in a

draft environmental document (DEA or DEIS) or a separate biological assessment] by

overnight mail, ask it to enter into formal consultation, and ask for its "biological 
POST-FILING PROCESS SECTION 4

Hydropower Licensing and Endangered Species Page 39

Figure 6. Formal consultation process (Source: Service Section 7 Consultation

Handbook, as modified by staff).
SECTION 4 POST-FILING PROCESS

45 Biological opinion--the document that states the opinion of the Service as to 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 (50 CFR § 402.02).

Page 40 Hydropower Licensing and Endangered Species 

opinion."45 In most cases, our DEA or DEIS or separate BA will satisfy the biological

assessment and initiation package requirements. 

If we use the DEA or DEIS, however, the letter requesting the initiation of formal

consultation should provide the exact location and page numbers of where the following

information can be found: (1) the action to be considered (generally, this will be the

preferred alternative); (2) the specific area that may be affected by the action; (3) any

listed species or critical habitat that may be affected by the action; (4) the manner in 

which the action may affect listed species or critical habitat, including any direct,

indirect, or cumulative effects; (5) relevant reports, including any EA, EIS, or biological

assessment (generally, this will be a list, because the reports will either be publicly

available or will already be part of the administrative record of the proceeding); and (6)

any other relevant available information on the action, affected species, or critical

habitat. An example of a letter requesting formal consultation is found in exhibit 6. 

Make sure you contact the Service to confirm that they received the request.

Adequacy of Information

The Service will review the information provided (initiation package) and will

inform the Commission whether the information is sufficient to initiate consultation. If

the information is sufficient or can be obtained during the consultation, formal

consultation will be initiated. If the information is not sufficient, the Service will describe

the specific information that is lacking and recommend the manner the information

might be obtained. [See adequacy of information section of ITF Report (appendix A).]

In some cases, the Service may believe that additional data beyond what is

needed to initiate consultation would provide a better information base on which to base

a BO. If we agree, we will request the applicant to develop the information. Otherwise,

consultation will continue with the existing information and the Service will provide the

benefit of the doubt to the species. We need to balance the value of the additional

information versus the delays that may result from developing the information.
POST-FILING PROCESS SECTION 4

Hydropower Licensing and Endangered Species Page 41

Exhibit 6. Suggested language for letter requesting formal consultation.

[send by overnight mail]

As required by section 7 of the Endangered Species Act, I'm requesting formal consultation

with your office.

The _______ Project is located on the ______ River in ______ County, (state). We address

the project's effects on threatened or endangered species and/or critical habitat in the enclosed 

(draft environmental assessment, draft environmental impact statement, or biological assessment, as

appropriate). For a DEA or DEIS, add: The enclosed (DEA or DEIS) serves as our biological

assessment. The location of the threatened and endangered species information is provided in the

attachment.

We conclude that (describe type of proposed action) the project, with our recommended

measures, is likely to adversely affect the (list species and critical habitat, as appropriate) , is "not

likely to adversely affect" the (list species and critical habitat, as appropriate), and would have no

effect on (list species and critical habitat, as appropriate). 

Please give us your biological opinion on our findings no later than 135 days from receipt of

this request. If we don't hear from you within 30 days, we will assume that you have sufficient

information to initiate consultation and will provide us with your biological opinion by (insert date*).

(If we would like to review the draft biological opinion, add: We would like the

opportunity to comment on the draft biological opinion prior to its finalization.)

Please file your response (an original and eight copies) with _________, Secretary, Federal

Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426. Please put the

docket number, P-_____-___, on the first page of your response. If you have any questions, please

call _____________ at (202) 219-_____. 

Enclosure–Draft Environmental Assessment for the _____ Project (P-_____-___) [or BA or DEIS,

as appropriate]

Attachment--Location of information needed to complete consultation on the ______ Project (P-

_____-___)

cc: Public Files

Service List

*Since we send requests by overnight mail, the receipt date would typically be the next business

day.
SECTION 4 POST-FILING PROCESS

Page 42 Hydropower Licensing and Endangered Species 

Exhibit 6 (cont.). Suggested language for letter requesting formal

consultation.

Attachment --Location of Information in the attached (DEA or DEIS) needed to complete

consultation on the _______ Project (P-_____-___).

Description of the

Action

Information on the general project location and description of federal lands

affected are found in the Application section (pages ____) (see location

map--figure __, page ___).

The preferred action, described in the Proposed Action and Alternatives

section (pages _____), consists of the applicant's proposal (pages ____),

as supplemented by additional measures recommended by staff (pages

_____).

Description of

Listed Species

and Critical

Habitat

In the Affected Environment subsection (pages ____) of the Threatened

and Endangered Species section, we summarize available background 

information on species biology, habitat requirements, abundance, and

distribution within the project area and surrounding areas; and summarize

the results of the surveys conducted by the applicant.

Description of

Affected Area

and

Description of the

Effects of the

Project, including

cumulative

effects

In the Environmental Impacts and Recommendations subsection (pages

70-77), we provide a description of the geographic area that may be

affected by the proposed action; an evaluation of the potential direct,

indirect, and cumulative effects on species and critical habitat of the

proposed action and alternatives; an evaluation of measures proposed by

the applicant and recommended by staff to reduce, avoid, minimize, or

enhance endangered species; and a determination of effect associated with

the preferred alternative for each species.

Cumulative effects are specifically discussed on page ___.

Interrelated or interdependent actions are described on page ___ [or none

were identified].

In the Unavoidable Adverse Impacts subsection, we summarize effects to

listed species that can't be avoided or mitigated (page __). 

Relevant Reports A list of relevant reports and other relevant information on the action, listed

species, or critical habitat that form the basis of our assessment of impacts

to endangered species are included in the Literature Cited section (pages

____). Copies of the reports prepared by the applicant, including _____

studies and survey results have already been filed with your office. 

Additional reports are enclosed (as appropriate).
POST-FILING PROCESS SECTION 4

46 The10(j) process involves the Commission's attempt to resolve inconsistencies between fish

and wildlife agency recommendations and the purposes and requirements of the FPA and applicable law

[see section 10(j) of the FPA and 18 CFR § 4.34(e)].

Hydropower Licensing and Endangered Species Page 43

Timing

The Service has 90 days to complete formal consultation, which involves the

exchange of information and discussions between us, the Service, and the applicant. 

Consultation can be extended by up to 60 days with agreement between the Service

and the Commission, without the applicant's consent. The Service must submit to the

applicant before the close of the 90-day period a written statement explaining:

• The reasons why a longer period is required

• Any information that may be required

• The estimated date on which consultation will be completed

Longer extensions may only be granted with the written consent of the applicant. 

If we do not agree to the extension, the Service will issue the biological opinion using

the best available data.

At the end of the 90-day period, unless extended, the Service has 45 days to

deliver its biological opinion.

Integration of the 10(j) Process with Formal Consultation

For routine cases (sufficient information has been developed and there is no

need for the Service to issue a draft biological opinion for comment), the 10(j) process46

(if needed) and ESA formal consultation process can be conducted concurrently to

avoid delays (figure 7 and accompanying text). The NEPA clarification meeting (figure

7, box 13a), if held, will be used to determine the appropriateness of initiating formal

consultation. The Commission's letter requesting formal consultation will be issued at

the same time as the Commission's letter outlining any preliminary inconsistencies

between fish and wildlife agency recommendations and applicable law [10(j) letter]. If a

10(j) meeting is needed, the meeting will be held during the formal consultation period

and will be used to discuss outstanding endangered species issues.

Integrating Settlements into the Formal Consultation Process

The Commission's policy is to encourage applicants to look toward collaboration 
SECTION 4 POST-FILING PROCESS

Page 44 Hydropower Licensing and Endangered Species 

Figure 7. Integration of the 10(j) process and endangered species formal

consultation (Source: ITF Report, appendix I, figure 3).
POST-FILING PROCESS SECTION 4

47 Staff would be separated from the advisory staff in such a proceeding and thus would not

participate in the Commission's decision-making process.

48 See Order approving offer of settlement and issuing new licenses, Kingsley and North

Platte/Keystone Diversion Projects, P-1417/1835, 84 FERC ¶ 61,077, July 29, 1998.

Hydropower Licensing and Endangered Species Page 45

The ESA/10(j) Integration Process

The steps described below refer to the stages represented by each box in Figure 7, "Integration of

Endangered Species Consultation and the 10(j) Process" (Source: ITF Report).

BOXES 14 THROUGH 15–If use of the ESA/10(j) integration process is appropriate, FERC and the

Service will coordinate the section 10(j) process with the ESA formal consultation process. If a

section 10(j) meeting is held, FERC and the Service will discuss ESA issues together with section

10(j) issues and FERC staff will issue a summary of the meeting. If a section 10(j) meeting is not

held, FERC and the Service will determine whether to hold an ESA consultation meeting. If an

extension of time to complete formal ESA consultation is needed, the Service will request an

extension as provided by ESA regulations.

The ESA/10(j) integration process is intended for simple cases not requiring the Service to develop

a draft Biological Opinion (BO). If FERC's initiation package contains sufficient information to initiate

consultation using the ESA/10(j) integration process, but after initiation the Service preliminarily

determines that the proposed action is likely to jeopardize listed species or adversely modify critical

habitat, the Service will inform FERC (and the applicant and other parties) that it intends to issue a

draft jeopardy BO. The draft BO will include proposed reasonable and prudent alternatives, if

available, and proposed reasonable and prudent measures to minimize the impact of any incidental

take. The Service will coordinate with FERC and the applicant in developing these RPAs.

If an extension of time to complete formal ESA consultation is needed to develop a draft BO, the

Service will request an extension as provided by ESA regulations.

and settlement as a means to afford listed species the mitigation and enhancement that

should be provided for proposed actions. In many cases, the drafting of a biological

opinion can be incorporated into a settlement process, usually with the assistance and

support of separated Commission staff,47 in order to submit the final biological opinion

to the Commission along with an Offer of Settlement.48 

Draft Biological Opinion

If we request, the Service will provide a copy of its draft biological opinion [50

CFR § 402.14(g)(5)]. The applicant may request a copy of the draft opinion from the

Commission; any comments the applicant may have on the draft BO must be submitted
SECTION 4 POST-FILING PROCESS

49 Reasonable and prudent alternatives--alternative actions identified during formal consultation

that can be implemented in a manner consistent with the intended purpose of the action, that can be

implemented consistent with the scope of the federal agency's legal authority and jurisdiction, that are

economically and technologically feasible, and that the Service believes would avoid the likelihood of

jeopardizing the continued existence of listed species or resulting in the destruction or adverse

modification of critical habitat (50 CFR § 402.02).

Page 46 Hydropower Licensing and Endangered Species 

Figure 8. Contents of a biological opinion.

to the Service through the Commission. If comments are filed with the Service within

10 days of the deadline for issuing the opinion, the time frame for the biological opinion

is extended by 10 days. Otherwise, the 45-day period in which the Service must deliver

the biological opinion can only be extended if we get the applicant to agree in writing.

The Commission will provide a revised economic analysis if a draft BO contains

reasonable and prudent alternatives that differ from the recommendations in the draft

EA or EIS (ITF Report).

If more time is needed to resolve issues presented in the draft BO, everyone

should work together to design a process that can provide sufficient time to work out

unresolved issues.

Final Biological Opinion

In a biological opinion (figure

8), the Service makes three

possible findings--a no-jeopardy or

no adverse modification opinion, a

jeopardy and/or adverse 

modification opinion with reasonable

and prudent alternatives,49 or a

jeopardy and/or adverse

modification opinion with no

reasonable and prudent

alternatives.

A no-jeopardy or no

adverse modification opinion

The Service finds that the proposed action, with modifications recommended by

staff, wouldn't likely jeopardize the continued existence of the listed species or cause

the destruction or adverse modification of critical habitat. The biological opinion will
POST-FILING PROCESS SECTION 4

50 Incidental take statement--the part of the biological opinion that exempts incidental take of a

listed species from the section 9 prohibitions.

51 Reasonable and prudent measures--actions the Service believes are necessary or

appropriate to minimize the impacts, i.e., amount or extent of incidental take (50 CFR § 402.02).

52 The Commission has routinely included reasonable and prudent measures to ensure that any

incidental take would not be considered prohibited, pursuant to section 7(b)(4) of the ESA.

53 Conservation recommendations--suggestions of the Service regarding discretionary

measures to minimize or avoid adverse effects of a proposed action on listed species or critical habitat

or regarding the development of information (50 CFR § 402.02).

Hydropower Licensing and Endangered Species Page 47

usually include an "incidental take" statement50 that:

• Specifies the amount of take that would be expected to occur incidental to

the proposed action (take is usually expressed as the number of

individuals reasonably likely to be taken or the extent of habitat to be

disturbed, but could be expressed as a change in habitat characteristics). 

• Includes reasonable and prudent measures51 found necessary to minimize

the incidental taking of a listed species, which may involve only 

minor changes to the proposed action (those not altering the basic design,

location, scope, or the timing of the proposed action)

• Includes terms and conditions implementing the reasonable and prudent

measures52

The Service's biological opinion also can include non-binding conservation

recommendations.53

A jeopardy and/or adverse modification opinion with reasonable and

Examples of incidental take statements

• Unquantifiable number of juvenile trout may be taken annually as a result

of fish entrainment

• Harassment of 6 eagles by altering their behavior

• No incidental take of eagles is expected and none is authorized

• Approximately 40 bull trout will be subjected to predation mortality annually
SECTION 4 POST-FILING PROCESS

Page 48 Hydropower Licensing and Endangered Species 

prudent alternatives

The Service develops alternatives ensuring that the proposed action would not

likely jeopardize the continued existence of the listed species or result in the destruction

or adverse modification of critical habitat. An incidental take statement may be

included.

A jeopardy and/or adverse modification opinion with no reasonable and

prudent alternatives

The Service finds that no alternatives are available to avoid jeopardizing the

continued existence of the listed species or preventing the destruction or adverse

modification of critical habitat. Such a finding may be based on the species status, the

lack of economically or technically feasible alternatives, or the lack of Commission

jurisdiction to implement the alternative.

4.5 Conference

We must request a conference with the Service whenever we find that the

proposed action is likely to jeopardize the continued existence of a proposed species or

to destroy or adversely modify proposed critical habitat (figure 5). This conference

should help identify and resolve potential conflicts at an early stage in the planning

process. (See 50 CFR § 402.10.) If it's unclear whether we're required to hold a

conference in a particular case, it may be a good idea to hold one. The request for a

conference is incorporated into any request for concurrence or formal consultation.

Informal Conference

Conferences are informal discussions on the project's effects and ways to avoid

or minimize the effects. The Service may make advisory recommendations. The

Service documents and provides us and the applicant with any conclusions reached

during the conference and any recommendations.

Formal Conference

If we determine that a project may affect a proposed species, we can also

request a "formal conference," which is similar to formal consultation. If the Service

agrees, they issue a "conference opinion." When a species becomes listed--assuming

new information hasn't been developed or the project's effects haven't significantly

changed--we may ask the Service to adopt the conference opinion as its biological

opinion. When combined with formal consultation, the Service will issue a combined

biological opinion and conference opinion.
POST-FILING PROCESS SECTION 4

54 The final decision on how to proceed with the proposed licensing action rests with the

Commission, pursuant to its authorities under the FPA and based on substantial evidence in the record. 

The Commission may not take any action that would jeopardize the continued existence of a listed

species and cannot modify the terms of an incidental take statement.

Hydropower Licensing and Endangered Species Page 49

4.6 Final EA/EIS

The FEA or final EIS should include:

• Any revisions to the threatened and endangered species section 

• A summary of the results of the section 7 consultation process

• An analysis of the results of the Service's biological opinion, including

whether the conservation recommendations are adopted under section

10(a) of the Federal Power Act

In some cases, the FEA or final EIS (FEIS) is used to initiate section 7

consultation, as previously described.

4.7 Licensing Decisions

License Orders

The license order will include an analysis and discussion of ESA issues and

necessary license conditions for the protection of listed species or designated critical

habitat.

The license order should include an endangered species section (exhibit 7). 

This section should include any findings we've made after completing the EA or EIS. 

The order should document the Service's position, including concurrence with any

findings that the project isn't likely to adversely affect listed species. The order (either

issuing or denying a license) should also document the results of formal consultation,

including a determination of whether, and in what manner, the Commission would

proceed with the action [50 CFR § 402.15(b)].54

If we can't issue a license consistent with section 7(a)(2) of the ESA and wish to 
SECTION 4 POST-FILING PROCESS

Page 50 Hydropower Licensing and Endangered Species 

Exhibit 7. Example of Threatened and Endangered Species section of license

order.

THREATENED AND ENDANGERED SPECIES

Section 7(a)(2) of the Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1536(a)(2),

requires federal agencies to ensure that their actions are not likely to jeopardize the continued

existence of federally listed threatened and endangered species, or result in the destruction or

adverse modification of designated critical habitat. The following federally listed species may occur

in the project area: the threatened bald eagle, northern spotted owl, Columbia River Basin bull trout,

and Upper Willamette River chinook salmon. In the EA, staff concluded that licensing the project as

recommended by staff may adversely affect Upper Willamette River chinook salmon and bull trout,

but would not affect the federally listed bald eagle, peregrine falcon, or northern spotted owl (see

sections V.C.1 and V.C.2 in the FEA). 

The Commission initiated formal consultation with FWS and NMFS by letters dated

September 16, 1998 and June 3, 1999, respectively. On November 22, 1999, NMFS and FWS

issued a joint biological opinion that concludes that issuing a license to the project, as recommended

by Commission staff, is not likely to jeopardize the continued existence of bull trout or Upper

Willamette River chinook salmon, and concurred with our finding for the bald eagle and spotted owl. 

Additionally, NMFS concludes that the project would not appreciably diminish the value of proposed

critical habitat for both the survival and recovery of Upper Willamette River chinook salmon. NMFS

and FWS included an incidental take statement with reasonable and prudent measures and terms

and conditions to minimize incidental take of bull trout or Upper Willamette River chinook salmon as

part of their biological opinion. The articles of this license that address these reasonable and

prudent measures and conservation recommendations require the licensee to do, among other

things, the following: 

1. Minimize the effects of the operation of the project on water temperatures, to prevent take

from chronic or acute physiological effects to listed fish (Articles 402 and 409).

2. Minimize the effects of in-water work associated with the project, to prevent direct

mortality and injury of listed fish from construction activities (Article 406).

3. Minimize the effects of operating the project on fish passage and migration to prevent

mortality and injury of listed fish from entrainment, impingement, migration delay, or other passage

problems (Articles 404 and 405). 

4. Document the continued operation of fish protection components of the project to ensure

incidental take of listed fish does not exceed predicted levels (Article 410).

5. Monitor trends in bull trout populations (Article 411).
POST-FILING PROCESS SECTION 4

55 The Endangered Species Committee, consisting of the Secretaries of Agriculture, Army, and

Interior, the Chairman of the Council of Economic Advisors, the Administrators of the Environmental

Protection Agency and the National Oceanic and Atmospheric Administration, and an individual from the

affected state selected by the President, reviews all exemption applications. By vote, five members

must concur that (1) there are no reasonable or prudent alternatives; (2) the benefits of the action

outweigh the benefits of alternative actions and the action would be in the public interest; (3) the action is

of regional or national significance; and (4) no irreversible or irretrievable commitment of resources were

made (50 CFR § 453.03). Procedures for exemption applications are found in 50 CFR § 451.

Hydropower Licensing and Endangered Species Page 51

pursue the matter further, we can apply for an exemption.55 This procedure has been

used very rarely by other agencies. If we deny a license based on a jeopardy opinion

and the decision is affirmed by the Commission on rehearing, the applicant at that time

can apply for an exemption. The Governor of the state where the project is located can

also apply for an exemption.

License Articles

 Articles are needed to require licensees to: (1) implement endangered species

measures, including those that may have been developed during the endangered

species consultation process; (2) to finalize the design of required measures; or (3) to

monitor the effectiveness of or compliance with recommended measures (exhibit 8). To

the extent practicable, we should avoid using articles that delay resolution of important

issues until after licensing.

Terms and Conditions of Biological Opinions

We typically would create separate articles that incorporate the conditions of the

biological opinion. In some cases, we have attached the conditions as an appendix to

the license or included articles requiring implementation of the conditions of the

biological opinion. A compliance monitoring article may also be needed (exhibit 8). 

.

Monitoring

Monitoring can be important to ensure that species and their habitat are

protected during construction activities, document compliance with license conditions,

to gather information on the effectiveness of measures, verify assumptions, determine

the need for future measures, and to ensure that incidental take is not exceeded (see

above). An example of a monitoring plan article is included in exhibit 8.

Adaptive Management

Adaptive management allows for changes in protection strategies that may be
SECTION 4 POST-FILING PROCESS

Page 52 Hydropower Licensing and Endangered Species 

Exhibit 8. Endangered species license articles.

Detailed Endangered Species Protection Plan Article

Article . At least 180 days before the start of any land-clearing or land-disturbing activities,

the licensee shall file with the Commission, for approval, a plan to protect the (list species). The plan

shall include, but not be limited to, the following:

(1)

(2)

The licensee shall prepare the plan after consultation with the (list agencies and tribes). The

licensee shall include with the plan documentation of consultation, copies of comments and

recommendations on the completed plan after it has been prepared and provided to the agencies

and tribes, and specific descriptions of how the plan accommodates the agencies' and tribes'

comments. The licensee shall allow a minimum of 30 days for the agencies and tribes to comment

and to make recommendations before filing the plan with the Commission. If the licensee does not

adopt a recommendation, the filing shall include the licensee's reasons, based on project-specific

information.

The Commission reserves the right to require changes to the plan. No land-disturbing or

land-clearing activities shall begin until the Commission notifies the licensee that the plan is

approved. Upon Commission approval the licensee shall implement the plan, including any changes

required by the Commission.

Biological Opinion Compliance Monitoring Article

Article . Within 180 days after the issuance date of this license and on, or before, (insert

date 90 days before measures would take affect) of each year thereafter, the licensee shall file, for

Commission approval, a Threatened and Endangered Species Plan and Annual Monitoring Report. 

The plan shall address the licensee's compliance with the terms and conditions of the incidental take

statement filed by the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service on

___________, and attached to this order as Appendix __. 

The licensee shall include with the plan documentation of consultation, copies of comments

and recommendations on the completed plan after it has been prepared and provided to the National

Marine Fisheries Service and/or the U.S. Fish and Wildlife Service, and specific descriptions of how

the agency comments are accommodated by the plan. The licensee shall allow a minimum of 30

days for the agencies to comment and to make recommendations prior to filing the plan with the

Commission for approval. If the licensee does not adopt a recommendation, the filing shall include

the licensee’s reasons, based on project-specific information. The Commission reserves the right to

make any changes to the plan.
POST-FILING PROCESS SECTION 4

Hydropower Licensing and Endangered Species Page 53

Exhibit 8 (cont.). Endangered species license articles.

Endangered Species Monitoring Plan Article

Article . The licensee, within 6 months from the date of issuance of this license, shall file

with the Commission, for approval, a plan to monitor ____________________________.

The plan shall include a schedule for implementing the plan; consultation with the appropriate

federal and state agencies; a yearly monitoring program, and filing the results and agency comments

with the Commission.

The licensee shall prepare the plan after consultation with the (list agencies).

The licensee shall include with the plan documentation of consultation, copies of comments and

recommendations on the completed plan after it has been prepared and provided to the agencies,

and specific descriptions of how the agencies' comments and recommendations are accommodated

by the plan. The licensee shall allow a minimum of 30 days for the agencies to comment and to

make recommendations before filing the plan with the Commission. If the licensee does not adopt a

recommendation, the filing shall include the licensee's reasons, based on project-specific

information. 

The Commission reserves the right to require changes to the monitoring plan. Upon

Commission approval, the licensee shall implement the plan, including any changes required by the

Commission. 

If the results of the yearly monitoring program show that modifications to the project or its

operations are necessary to protect the (list species), the licensee shall also file, for Commission

approval, recommendations for modifying project operations or other measures, a schedule for

implementing the recommendations, and comments of the consulted agencies on the proposed

modifications or measures. The Commission reserves the right to require changes to the proposed

modifications or measures. Upon Commission approval, the licensee shall implement the proposed

modifications or measures, including any changes required by the Commission.

Standard Fish and Wildlife Reopener Article*

Article . The Licensee shall, for the conservation and development of fish and wildlife

resources, construct, maintain, and operate, or arrange for the construction, maintenance, and

operation of such reasonable facilities, and comply with such reasonable modifications of the project

structures and operation, as may be ordered by the Commission upon its own motion or upon the

recommendation of the Secretary of the Interior or the fish and wildlife agency or agencies of any

State in which the project or a part thereof is located, after notice and opportunity for hearing.

* Although the Department of Commerce is not specifically mentioned, the Commission recognizes

that either NMFS or FWS could invoke this article to recommend that the Commission reopen a

license to permit compliance with the ESA. See Order on rehearing, Clark Fork Project, P-2058-015,

93 FERC ¶ 61,116, October 30, 2000.
SECTION 4 POST-FILING PROCESS

56 Order on rehearing, Clark Fork Project, P-2058-015, 93 FERC ¶ 61,116, October 30, 2000. 

Page 54 Hydropower Licensing and Endangered Species 

necessary to reach long-term goals. It can be used to: (1) ensure that conservation

strategies are producing desired results particularly when there are significant biological

data gaps; (2) respond to new information or changed circumstances; (3) test a range

of actions; and (4) allow flexibility in meeting goals. While adaptive management can

help deal with uncertainty, it is not a substitute for completing necessary studies before

issuance of a license.

Reopeners

All licenses issued after 1975 include the Commission's standard reservation of

authority (L-form article) to reopen the license for the conservation and development of

fish and wildlife resources (exhibit 8). This authority can be used to reopen the license

to address unforeseen circumstances related to ESA issues. Thus, there is no need to

include a specific reservation of authority for ESA purposes.

56
POST-LICENSING PROCESS SECTION 5

57 Information on the license amendment process can be found in the Hydroelectric Project

Handbook for Filings Other than Licenses and Exemptions, FERC, April 2001

(http://www.ferc.gov/hydro/docs/post_licensing_handbook.pdf).

58 As discussed in the ITF Report (appendix A, Post-licensing & ESA Section 7 Consultation),

the Commission and the Service disagree over what triggers the initiation of section 7 consultation for

ongoing project operations.

Hydropower Licensing and Endangered Species Page 55

5

Post-licensing Process

5.1 LICENSE AMENDMENTS

Section 7 consultation for license amendments57 is generally similar to the

process followed for licensing. The pre-filing consultation process for a non-capacity

amendment, however, is abbreviated [18 CFR § 4.38(a)(5)]. After filing, scoping may

not be conducted and draft EAs may not be prepared. Otherwise, the major steps are

the same: (1) development of adequate information; (2) opportunity for the applicant to

be designated as a non-federal representative; (3) preparation of a BA by the applicant

or Commission staff; and (3) issuance of a BO by the Service. 

5.2 DEVELOPMENT OF NEW INFORMATION

New species may be listed or new information may become available suggesting

a potential project effect on listed species or critical habitat. The Commission staff will

work with the Service, as well as licensees, resource agencies, and other interested

persons, regarding the Commission's section 7 responsibilities absent a license

amendment or other federal action requiring Commission approval after a license is

issued for ongoing project operations.58

[W]hen the Commission becomes aware of information to suggest that ongoing

operation of a project may affect a threatened or endangered species, it is our practice

to direct our staff to investigate the situation, in consultation with the licensee, the FWS

(or NMFS, as appropriate), and any other interested participants, to determine what

effects, if any, may be occurring, and what changes, if any, should be considered to

avoid or mitigate those effects or to benefit the listed species. If changes are considered

either necessary or desirable, the Commission can then institute a reopener proceeding

to require them, or can entertain a voluntary amendment application from the licensee.
SECTION 5 POST-LICENSING PROCESS

59 See Order Denying Petition, Blue Ridge Project, P-2304-005, 94 FERC ¶ 61,202, February

23, 2000.

Page 56 Hydropower Licensing and Endangered Species 

In either case, Commission action would be required to accomplish the change, thus

providing the requisite federal agency action for formal ESA consultation.59

The post-licensing procedures developed by the ITF provide a procedural

framework for: (1) identifying issues; (2) consulting among the Commission, the

applicant, and the Service; and (3) determining the need for measures to protect listed

species and critical habitat. A look at the steps in the process and how ESA issues are

integrated are outlined in figure 9 and accompanying text. 

Once concerns regarding endangered species have been raised, the

Commission, the licensee, and the Service will consult to identify the information that

would be needed to determine potential project effects. This consultation could include,

among other things, compilation of existing scientific data and studies and/or

identification of needed additional information. If appropriate, the Commission and the

licensee, with Service input, will use this information to prepare a biological evaluation

(BE) on the effects of the project on the listed species. A BE generally contains the

same information as is found in a BA.

If the BE indicates that no measures are needed to change project operations,

the Commission will write a letter to the Service explaining the reasons for this

conclusion. The Service will provide a written letter concurring with, or disputing this

conclusion. If the Service disputes this conclusion, and the Commission and Service

are unable to agree, they will seek to resolve the issue at a higher level within their

respective agencies. If the results of the consultation indicate that changes in existing

project operations or facilities are needed to protect listed species, and the licensee

agrees with those changes, the licensee would either implement those changes that are

consistent with the current license or file a non-capacity amendment application with

FERC. This application may be accompanied by an Offer of Settlement and a BO on

the proposed action, in accordance with the Commission's procedures. 

If the licensee does not agree with the proposed changes developed during

consultation, the Commission would attempt to bring the parties together to seek a

mutually acceptable way of addressing the ESA issues presented. If this effort is

unsuccessful and the Commission believes that changes in existing project operations

or facilities and license conditions are needed to protect listed species, the Commission

would use its reserved authority in the current license to initiate a license reopener

proceeding (see section 4.7). The Commission would issue a public notice of the

proceeding to invite public comments and interventions, and to provide the licensee 
POST-LICENSING PROCESS SECTION 5

Hydropower Licensing and Endangered Species Page 57

Figure 9. Post-licensing process and endangered species consultation (Source: ITF

Report, appendix II, figure 4, as annotated by FERC staff).
SECTION 5 POST-LICENSING PROCESS

Page 58 Hydropower Licensing and Endangered Species 

Post-licensing Process

The steps described below refer to the stages represented by each box in figure 9, "Post-licensing

Process and Endangered Species Consultation" (Source: ITF Report, appendix II).

BOX 1--After a license is issued, new information may surface regarding project effects on listed

species or critical habitat. In other instances, new species may be listed or critical habitat may be

designated after a project is licensed and operational. FERC may receive information from

licensees, non-governmental organizations, or the Service raising concerns about the effects of

specific projects on the listed species or critical habitat. 

BOX 2--FERC, the licensee, and the Service will consult to identify the information that would be

needed to determine potential project effects. This consultation could include, among other things,

compilation of existing scientific information/studies and/or identification of needed scientific

information/studies. FERC and the licensee, with Service input as appropriate, will use this

information to prepare a Biological Evaluation (BE) on the effects of the project on the listed species. 

FERC, the licensee, and the Service will attempt to reach agreement on a time frame for completing

consultation, taking into account the potential effects that may be occurring while consultation

proceeds.

BOX 2a--If the BE indicates that protective measures are not needed because project operations

have no effect or are not likely to adversely affect the listed species, then FERC will send a letter

and the BE to the Service explaining its reasons for the finding. FERC could also determine that,

while there may be changes to existing project operations needed to protect listed species, no

changes to the license would be needed to facilitate those changes. The Service will respond to

FERC's letter indicating whether or not they agreed with FERC's determination. If FERC and the

Service are unable to agree, they will seek to resolve the issue at a higher level within their

respective agencies.

BOX 3--Based on the information developed in BOX 2 , FERC, the licensee, and the Service will

continue consultation to develop conservation actions and operational criteria that could be

incorporated into the project to avoid and minimize impacts to the listed species.

BOX 3a--If the results of consultation indicate that changes in existing project operations or facilities

and license conditions are needed to protect listed species, and the licensee agrees with those

changes, the licensee would file a non-capacity amendment application with FERC. The

application, among other things, should include the licensee's proposed changes to project

operations or facilities, as well as the comments of the Service, any state fish and wildlife agencies,

and any Indian tribes that may be affected by the proposed change.

BOX 3b--If the results of the consultation indicate that changes in existing project operations or

facilities and license conditions are needed to protect listed species, but the licensee does not agree

with those changes, FERC would initiate a license reopener proceeding based on a specific or
POST-LICENSING PROCESS SECTION 5

Hydropower Licensing and Endangered Species Page 59

with notice and an opportunity for a hearing. When a proposed action is developed

(which could be an Offer of Settlement and license amendment proposal), the

Commission will ensure that its formal consultation responsibilities under section 7(a)(2)

of the ESA, as described above, are fulfilled. FERC may designate the licensee to act

as its non-federal representative for purposes of informal consultation and may assign

staff to assist in this process and to encourage the resolution of disputes regarding

measures needed to protect listed species.

Implementation of measures to protect listed species will not always require a

license amendment. The licensee, with FERC oversight, may voluntarily collaborate

with the Service to facilitate any necessary changes in project operations, if those

changes are consistent with the requirements of the current project license.

5.3 Article Compliance

Approval of measures required by license articles may require endangered

species consultation if the effects of the measures on endangered species were not

considered during the licensing action. Staff has conducted formal consultation on

actions such as approval of a management plan for the Karner blue butterfly or

approval of a dam remediation plan.

 standard license reopener article.* FERC would issue a public notice of the reopener proceeding,

indicating the reason for the reopener, inviting comments from the resource agencies and

interveners, and providing notice and opportunity for hearing to the licensee. 

BOXES 4 THROUGH 6--The activities identified in BOX 3a and BOX 3b will require formal

consultation under section 7 of the ESA, unless FERC and the Service agree that the actions are

not likely to adversely affect listed species. FERC may designate the licensee to act as its nonfederal representative for purposes of informal consultation. FERC will initiate formal consultation

under the ESA and, with the exception of the FPA 10(j) process, follow procedures as outlined in

Boxes 13 -17 in the post-filing licensing process. 

* All licenses issued since October 31, 1975, contain standard reopener articles for fish and wildlife

that can be used to address ESA issues (see exhibit 8). Some older licenses do not contain

provisions to reopen the license for the protection of fish and wildlife. In those cases, FERC and the

Service should continue consultation with the licensee to facilitate the necessary changes to project

operations or facilities.
SECTION 5 POST-LICENSING PROCESS

Page 60 Hydropower Licensing and Endangered Species 

5.4 Reinitiation of Formal Consultation

We may need to reinitiate consultation during the license term if: (1) the amount

of incidental take anticipated in the biological opinion is exceeded; (2) the action is

modified such that impacts not previously considered could result; (3) unanticipated

impacts result; or (4) a new species is listed or critical habitat is designated that may be

affected by the action (50 CFR § 402.16).
ITF ENDANGERED SPECIES REPORT (MAIN TEXT) APPENDIX A

1

 This appendix only includes the main text of the ITF Report. Appendices I and II of the ITF

report have been incorporated into the text of this guidance document (figures 2, 3, 7, and 9 and

accompanying text). The entire report can be found on the Commission's web site

(http://www.ferc.gov/hydro/docs/interagency.htm).

Hydropower Licensing and Endangered Species Page A-1

Interagency Task Force Report on

Improving Coordination of

ESA Section 7 Consultation with the FERC Licensing Process1

Prepared by the Work Group on the Coordination of Federal Mandates:

Federal Energy Regulatory Commission

U.S. Department of the Interior

U.S. Department of Commerce

U.S. Department of Agriculture

Environmental Protection Agency

Advisory Council on Historic Preservation

December 12, 2000

Introduction

Under Section 7(a)(2) of the Endangered Species Act (ESA), federal agencies are required to consult with the U.S.

Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS), as appropriate, to ensure

that any federal action is not likely to jeopardize the continued existence of any threatened or endangered species,

or adversely modify critical habitat designated for those species. For hydroelectric licensing proceedings under

the Federal Power Act (FPA), ESA consultation is often required in connection with the issuance of original and

new licenses. ESA consultation may also be required, in some cases, after a license is issued. Throughout this

document, the term "Service" refers generically to FWS and/or NMFS.

This document describes procedures to coordinate and integrate the ESA consultation process with the FPA

licensing process, and provides a means of addressing post-licensing consideration of ESA issues. These

procedures are intended as general guidance for applicants, FERC staff, and resource agency staff who are

engaged in either the traditional or alternative licensing process, subject to any modifications that may be required

to address the particular circumstances of each proceeding. This document also addresses issues related to the

adequacy of information, off-the record communications, economic feasibility, settlement agreements, information

from the Service, and scope of effects of the proposed action. The solutions developed to address these issues

are contained both in the main body of the document and in the accompanying appendices. In order to provide

the reader with an overview of the new procedures, flow charts are also included with the appendices to this

Report. This document is not intended as a modification or restatement of the applicable procedural regulations

under the FPA and ESA section 7, respectively, and it is assumed that the reader has basic familiarity with these

regulations. Therefore, the reader should refer to the applicable regulations for more detail regarding the

procedures addressed in this document. This document does not address substantive issues related to FERC's

and the Service's or other resource agencies' responsibilities under Sections 4(e), 10(j), and 18 of the FPA; these

issues are considered in a later report. 

Coordinating the ESA Section 7 and FPA Licensing Processes

Issues: If a proposed agency action may affect a listed species or critical habitat, consultation with the Service is

required under Section 7 of the ESA. If formal consultation is required, this process culminates with the Service’s
APPENDIX A ITF ENDANGERED SPECIES REPORT (MAIN TEXT)

Page A-2 Hydropower Licensing and Endangered Species 

issuance of a Biological Opinion (BO). In formulating its BO, the Service must use the best scientific and

commercial information available. The ESA Section 7 regulations and FPA licensing regulations establish

processes which require certain actions to be completed within specific time frames before a BO or new license

can be issued. While the licensing process may take several years, Section 7 consultations typically do not require

this amount of time. Often, however, the same issues are raised in both processes and require the same or similar

information for resolution. There is a common concern that, at times, the ESA Section 7 consultation and FPA

licensing processes have not been well integrated, resulting in inefficiencies, inconsistencies, and delays in the

application process. Examples of issues raised include:

 • When should informal consultation be initiated? 

• When should the Biological Assessment (BA) be prepared? (A BA, prepared by the action agency, or the

applicant as FERC's designated non-federal representative, aids the action agency in determining if formal

consultation is needed.) 

• At what point in the licensing process should the formal consultation process begin and end to ensure the

BO: Considers an accurate formulation of the proposed action; is based on the best information available;

and, is coordinated with a licensing decision?

• How should the ESA Section 7 process be coordinated and integrated with the FERC NEPA process? 

• To what extent can FERC's draft EA or draft EIS be used as a BA to initiate formal consultation?

• Where consultations with both NMFS and FWS are required, to what extent should a joint BO be

prepared?

• How should the ESA Section 7 process be coordinated and integrated with the FPA Section 10(j) process?

• What is the role of FERC, and/or the applicant as its designated non-federal representative, in this

process?

Proposed Solutions:

In Appendix I to this document, FERC and the Service have outlined a means of integrating and coordinating the

procedural steps of the FPA licensing process and the ESA Section 7 consultation process. The coordination of

the two processes is largely keyed to FERC’s traditional licensing process, but Appendix I may be applied to the

alternative licensing process as well. In order to expedite both ESA consultation and the overall licensing process,

the streamlined process set out in the Appendix aims to ensure that ESA issues are considered early in the process

and evaluated alongside other issues.

Specific solutions to the issues posed can be found throughout Appendix I. In summary, they include:

• FERC will designate the license applicant, whenever possible, to act as a non-federal representative for

purposes of informal ESA consultation during the FPA pre-application consultation process. FERC will

furnish guidance and supervision as needed and will independently review the biological assessment. 

FERC retains the ultimate responsibility for section 7 compliance during the licensing process.

• Parties are strongly encouraged to discuss, and resolve where possible, ESA issues before a license

application is filed.

• Applicants are strongly encouraged to prepare and file a draft biological assessment with the license

application.

• In requesting studies and additional information, resource agencies will consider ESA issues and draft

their requests accordingly.

• FERC will make sure that ESA issues are integrated into the scoping process.

• If the effort to consider and integrate ESA issues early in the process is successful, FERC will integrate

and coordinate ESA formal consultation with the NEPA and Section 10(j) processes, at least for routine

cases. If applied flexibly, this approach may also provide useful guidance for more complex cases. (This

approach assumes that the Service and FERC agree that the information base is sufficient to initiate

consultation.)

• In such cases, FERC will request initiation of formal consultation when the draft NEPA document is issued.

If the Service agrees that the information is sufficient, consultation will proceed expeditiously, and can be
ITF ENDANGERED SPECIES REPORT (MAIN TEXT) APPENDIX A

Hydropower Licensing and Endangered Species Page A-3

completed simultaneously with completion of the Section 10(j) process. The Service will then issue its BO

which FERC will include in its final NEPA analysis document.

FERC's Rules Regarding Off-the-Record Communications

Issues: FERC's rules prohibit off-the-record communications between FERC and persons outside FERC in

contested on-the-record proceedings (those in which there is an opportunity to intervene and an intervener disputes

any material issue). 18 CFR 2201. As a result, FERC has required that, when consultation under Section 7 of the

ESA occurs in a contested case, it must be conducted on-the-record. Generally, only FERC and the Service are

consulting parties, with the license applicant usually invited to participate. In some cases, an applicant may be

designated to act as a non-federal representative for purposes of informal ESA consultation. If informal ESA

consultation occurs early, before a license application is filed, the rule prohibiting off-the-record communications

does not apply. However, if ESA consultation (whether informal or formal) occurs post-filing and involves FERC

staff in the context of a contested proceeding, FERC requires that other parties be given notice of meetings or other

substantive discussions of the matters at issue, as well as an opportunity to be present and observe the

consultation. Section 7 consultations are usually most effective when done informally, early, and openly with the

action agency and applicant, which allows for early resolution of ESA-related problems. Therefore, FERC's need

for on-the-record communications may have the effect of deterring informal discussion of ESA issues.

Proposed Solutions:

FERC recently issued a final rule that would allow for certain limited exceptions to the rule prohibiting off-the-record

communications, coupled with a disclosure requirement (64 Federal Register 51222, September 22, 1999). On

November 21, 2000, FERC issued its decision on rehearing of the final rule. 93 FERC ¶ 61,181. On rehearing,

the Commission declined to include a specific exemption for ESA consultation, and determined that the NEPA

exemption regarding off-the-record communications should not be used for ESA consultation that occurs as part

of the NEPA process. As a result, post-filing ESA consultation in contested cases will continue to be conducted

on the record. We note, however, that the rule includes an exemption permitting off-the-record consultations in

certain circumstances with non-party agencies under the ESA and other statutes.

The Work Group addressed this issue in the previous section on coordination by providing for early, informal

consultation before a license application is filed, when an on-the-record proceeding has not yet begun and the rule

prohibiting off-the-record communications does not apply.

Adequacy of Information

Issues: The ESA requires the Service to base its biological opinion on the best scientific and commercial data

available. In the consultation context, the following issues may arise:

• What happens if the Service and FERC disagree about what constitutes the best available data for: (a) the

purposes of initiating consultation or (b) providing the basis upon which the Service issues a BO?

• What constitutes the "best scientific and commercial data available” and to what lengths must the action

agency go to obtain it?

• If the Service believes that additional data would provide a better information base upon which to formulate

its biological opinion, how should the consultation proceed?

• When consultation is completed without additional data, to what extent is there a continuing responsibility to

obtain that data?

• How should the consultation time line be coordinated with FERC's time line for the project in the event there

is a need to obtain additional data?
APPENDIX A ITF ENDANGERED SPECIES REPORT (MAIN TEXT)

2

 This should be discussed at the NEPA clarification meeting, if held.

Page A-4 Hydropower Licensing and Endangered Species 

Proposed Solutions:

1. If FERC and the Service are able to agree on what information is needed for the purpose of initiating

consultation, FERC will provide the necessary information or request it from the license applicant.

2. If the Service and FERC disagree about what constitutes the best scientific and commercial data available for

the purpose of initiating consultation, FERC, the Service, and the applicant will schedule a meeting (or

teleconference)2

 to discuss what information is available and needed to initiate consultation, and what additional

information can be obtained during the consultation to ensure that the Service's biological opinion is based upon

the best scientific and commercial data available.

3. If, after meeting, FERC and the Service still cannot agree on whether the information provided by FERC for the

purpose of initiating consultation is adequate, the Service will identify, in writing, the specific information needed

to initiate consultation. The Service also may specify what, if any, information can be obtained during the

consultation to ensure that the Service's biological opinion is based upon the best scientific and commercial data

available. FERC will provide this information or demonstrate in writing why some or all of the information requested

is unavailable or is not appropriate. In the latter case, the Service will take a hard look at the information provided

to determine whether it is adequate to initiate formal consultation. The Service will inform FERC in writing of its

determination and the reasons for it. If FERC and the Service are unable to agree, they will seek to resolve the

issue at a higher level within their respective agencies. If the Service still determines that the information is not

adequate to initiate consultation, FERC will decide what course of action may be appropriate with respect to the

request and the pending license application, and if possible, notify the Service of its decision prior to taking action.

4. If the Service determines that sufficient information has been presented to initiate consultation, but additional

data would provide a better information base upon which to formulate a biological opinion, the Service may request

an extension of formal consultation and request that FERC obtain the additional data. The Service will provide

FERC and the applicant with its reasons for concluding that additional data are needed.

5. If FERC and the Service agree that the additional data are needed, FERC will agree to the extension and obtain,

to the extent practicable, the data that can be developed during the extension. An extension greater than 60 days

shall require the consent of the applicant. (See 50 CFR 402.14(e))

6. If FERC and the Service are unable to agree on the need for additional information, the Service will proceed

with consultation based on the data already provided and otherwise available to the Service. The Service will

prepare a biological opinion that: (a) documents what information was not provided and why such information would

have been helpful in improving the information base for consultation; and (b) resolves uncertainties in favor of the

conservative protection of the listed species – including any uncertainties that arise from differences between the

Service's and FERC's views of what constitutes the best scientific and commercial data available.

Economic Feasibility

Issues: To be considered a reasonable and prudent alternative (RPA), ESA regulations require that an action be

both economically feasible and capable of avoiding jeopardy and destruction or adverse modification of critical

habitat. To assess economic feasibility, information regarding how the proposed modifications will affect costs

is needed. FERC provides information on the cost of environmental measures in its environmental documents and

compares the cost of project power to the cost of replacement power. However, FERC's policy is to allow the

license applicant to determine whether to accept the license, including conditions requiring any reasonable and

prudent alternatives, and all costs associated with such conditions. This approach can make it difficult for the

Service to determine whether RPAs are economically feasible.
ITF ENDANGERED SPECIES REPORT (MAIN TEXT) APPENDIX A

Hydropower Licensing and Endangered Species Page A-5

Proposed Solutions:

1. The Service, the Commission, and the applicant will develop information on economic feasibility during informal

consultation. If this information is not provided, the Service will inform FERC. If FERC agrees that such

information is available or can be obtained during consultation, FERC will request the license applicant to provide

this information, and will be responsible for ensuring that the applicant supplies such information to the Service,

as appropriate.

2. FERC will include information on the cost of environmental measures to protect listed species and their habitat

in its draft NEPA document, consistent with FERC's guidelines for conducting its economic analysis.

3. If the Service prepares a draft biological opinion with reasonable and prudent alternatives that differ from the

environmental measures for threatened and endangered species included in FERC's draft NEPA document, FERC

will provide the Service with a revised economic analysis of those measures upon request.

Settlement Agreements

Issues: Under both the traditional and the alternative licensing process, the Service may be involved in resource

issues work groups and subsequent settlement negotiations. The Service may also be involved in settlements after

license applications have been filed or after a license has been issued. Often these settlements address

endangered species issues or include measures that could affect endangered species (e.g., minimum flow

releases). Section 7 consultation, if needed, typically follows development of the settlement.

When parties reach a settlement agreement in a case that includes ESA issues, concerns may arise about how

best to accommodate both the settlement process and the need for consultation under Section 7 of the ESA. If

the Service participates in settlement negotiations and agrees to a settlement, parties may be concerned about the

possibility of Section 7 consultation yielding results that are inconsistent with the settlement agreement. Parties

may also be uncertain about the need for consultation on the provisions of the settlement. If a settlement is

reached after consultation has been completed, the applicability of that consultation may be in question. These

issues are related to the general issue of coordinating ESA consultation and the licensing process, and include

both the timing and the substance of consultation in relation to settlement agreements.

Proposed Solution:

1. Service T&E staff, as well as Service hydropower staff, will participate in settlement discussions and anticipate

the consequences of the settlement on listed or proposed species, on the applicability of any completed

consultations, and on the future need for Section 7 consultation. This will help ensure that, to the degree

practicable, the protective measures recommended in the settlement process will encompass those measures

found necessary during the Section 7 process. However, the Service will reserve its right to develop additional or

different measures necessary to meet its responsibilities under Section 7.

Post-licensing & ESA Section 7 Consultation

Issues: After a license is issued, FERC and the Service agree that ESA consultation may be triggered by a license

amendment or other action requiring FERC approval. However, new species may be listed or new information may

become available indicating a potential project effect on listed species or critical habitat. FERC and the resource

agencies differ regarding FERC's Section 7 responsibility absent a license amendment or other federal action

requiring Commission approval after a license is issued. In FERC’s view, a definitive federal action, such as

Commission approval of a license amendment, is needed to trigger consultation. In the Service’s view, either new

listings or new information, together with FERC’s continued oversight and discretionary authority over licenses, are

sufficient to trigger Section 7 consultation for an ongoing license. In addition, the Service believes that the transfer

of a license is a federal process meeting the definition of an "action"in 50 CFR 402.02, whereas FERC regards a

license transfer as not meeting this definition, because it involves merely a substitution of licensees without any
APPENDIX A ITF ENDANGERED SPECIES REPORT (MAIN TEXT)

Page A-6 Hydropower Licensing and Endangered Species 

substantive changes in the license. 

Proposed Solution:

In Appendix II to this document, FERC and the Service have outlined a means of addressing ESA issues in the

post-licensing context. The Appendix provides a procedural framework for identifying issues; consulting among

FERC, the applicant and the Service; and determining the need for measures to protect listed species and critical

habitat. 

Information from the Service

Issues: In both licensing and post-licensing proceedings, FERC and licensees often consult with resource agencies

with respect to environmental issues. In some cases, the agencies have separate technical staffs that consult

exclusively on either hydropower or ESA issues. In addition, there are cases in which ESA and hydropower staffs

from both Services are participants. Given the various types of agency staff which might be involved, there is

potential for conflicting agency guidance, processes, and understandings to develop.

Proposed Solution:

1. As outlined in Appendix I to this document, Service ESA staff, as well as Service hydropower staff, will become

involved early in the process (i.e., during pre-filing consultation with prospective license applicants) to ensure that

ESA issues are considered together with other issues. During licensing proceedings, Service ESA staff and

Service hydropower staff will continue to consult and coordinate with one another to assure a consistent approach

to licensing issues. Service participation in post-licensing proceedings and settlement negotiations will be similarly

coordinated.

"Scope of Effects" of Proposed Action

Issues: The regulations on Section 7 consultation list examples of "action" as actions directly or indirectly causing

modifications to the land, water, or air. Indirect effects are delayed effects caused by the proposed action which

are reasonably certain to occur. The Service and FERC sometimes differ on the "scope of effects" of a proposed

action. These differences concern whether the effects in question are reasonably related to the proposed action,

and whether there is a "reasonable" likelihood that indirect effects may result from the proposed action.

Proposed Solutions:

1. Participants are encouraged to identify the scope of effects early in the FPA process thereby allowing sufficient

time to adequately resolve concerns while avoiding delays that may otherwise result.

2. In its cover letter transmitting its NEPA document or Biological Assessment, FERC will explain how it considered

direct and indirect effects of the proposed action, any cumulative effects, and the effects of any interrelated or

interdependent actions, as well as the basis for its findings.

3. In assessing the adequacy of information provided, the Service will be as specific as possible about what effects

or actions it believes FERC should have considered, or did not consider in sufficient detail. 
ESA SECTIONS 7(a)-(d) APPENDIX B

Hydropower Licensing and Endangered Species Page B-1

 SECTIONS 7(a)-(d) OF THE ENDANGERED SPECIES ACT

INTERAGENCY COOPERATION

Sec. 7. (a) Federal Agency Actions and Consultations.-

(1) The Secretary shall review other programs administered by him and utilize such programs in

furtherance of the purpose of this Act. All other Federal agencies shall, in consultation with and with the

assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying

out programs for the conservation of endangered species and threatened species listed pursuant to

section 4 of this Act.

(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 (hereinafter in this section

referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered

species or threatened species or result in the destruction or adverse modification of habitat of such

species which is determined by the Secretary, after consultation as appropriate with affected States, to

be critical, unless such agency has been granted an exemption for such action by the Committee

pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency

shall use the best scientific and commercial data available.

(3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult

with the Secretary on any prospective agency action at the request of, and in cooperation with, the

prospective permit or license applicant if the applicant has reason to believe that an endangered species

or a threatened species may be present in the area affected by his project and that implementation of

such action will likely affect such species.

(4) Each Federal agency shall confer with the Secretary on any agency action which is likely to

jeopardize the continued existence of any species proposed to be listed under section 4 or result in the

destruction or adverse modification of critical habitat proposed to be designated for such species. This

paragraph does not require a limitation on the commitment of resources as described in subsection (d).

(b) Opinion of Secretary.-(1)(A) Consultation under subsection (a)(2) with respect to any

agency action shall be concluded within the 90-day period beginning on the date on which initiated or,

subject to subparagraph (B), within such other period of time as is mutually agreeable to the Secretary

and the Federal agency;

(B) in the case of an agency action involving a permit or license applicant, the Secretary and the

Federal agency may not mutually agree to conclude consultation within a period exceeding 90 days

unless the Secretary, before the close of the 90th day referred to in subparagraph (A)-

(i) if the consultation period proposed to be agreed to will end before the 150th day after the date

on which consultation was initiated, submits to the applicant a written statement setting forth-

(I) the reasons why a longer period is required

(II) the information that is required to complete the consultation; and 

(III) the estimated date on which consultation will be completed; or

(ii) if the consultation period proposed to be agreed to will end 150 or more days after the date

on which consultation was initiated, obtains the consent of the applicant to such period. The Secretary

and the Federal agency may mutually agree to extend a consultation period established under the

preceding sentence if the Secretary, before the close of such period, obtains the consent of the applicant

to the extension. 

(2) Consultation under subsection (a)(3) shall be concluded within such period as is agreeable to

the Secretary, the Federal agency, and the applicant concerned.

(3)(A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a), the

Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth

the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how

the agency action affects the species or its critical habitat. If jeopardy or adverse modifications is found,

the Secretary shall suggest those reasonable and prudent alternatives which he believes would not
APPENDIX B ESA SECTIONS 7(a)-(d)

Page B-2 Hydropower Licensing and Endangered Species

violate subsection (a)(2) and can be taken by the Federal agency or applicant in implementing the

agency action.

(B) Consultation under subsection (a)(3), and an opinion issued by the Secretary incident to

such consultation, regarding an agency action shall be treated respectively as a consultation under

subsection (a)(2), and as an opinion issued after consultation under such subsection, regarding that

action if the Secretary reviews the action before it is commenced by the Federal agency and finds, and

notifies such agency, that no significant changes have been made with respect to the action and that no

significant change has occurred regarding the information used during the initial consultation.

(4) If after consultation under subsection, (a)(2), the Secretary concludes that-

(A) the agency action will not violate such subsection, or offers reasonable and prudent

alternatives which the Secretary believes would not violate such subsection; and

(B) the taking of an endangered species or a threatened species incidental to the agency action

will not violate such subsection; 

(C) if an endangered species or threatened species of a marine mammal is involved, the taking

is authorized pursuant to section 1371(a)(5) of this title; the Secretary shall provide the Federal agency

and the applicant concerned, if any, with a written statement that-

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or

appropriate to minimize such impacts, 

(iii) in the case of marine mammals, specifies those measures that are necessary to comply with

section 1371(a)(5) of this title with regard to such taking, and

(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that

must be complied with by the Federal agency or applicant (if any), or both, to implement the measures

specified under clauses (ii) and (iii).

(c) Biological Assessment.-(1) To facilitate compliance with the requirements of subsection

(a)(2) each Federal agency shall, with respect to any agency action of such agency for which no contract

for construction has been entered into and for which no construction has begun on the date of

enactment of the Endangered Species Act Amendments of 1978, request of the Secretary information

whether any species which is listed or proposed to be listed may be present in the area of such

proposed action. If the Secretary advises, based on the best scientific and commercial data available,

that such species may be present, such agency shall conduct a biological assessment of the purposed

of identifying any endangered species or threatened species which is likely to be affected by such action. 

Such assessment shall be completed by 180 days after the date on which initiated (or within such other

period as is mutually agreed to by the Secretary and such agency, except that if a permit or license

applicant is involved, the 180-day period may not be extended unless such agency provides the

applicant, before the close of such period, with a written statement setting forth the estimated length of

the proposed extension and the reasons therefore) and, before any contract for construction is entered

into and before construction is begun with respect to such action. Such assessment may be undertaken

as part of a Federal agency's compliance with the requirements of section 102 of the National

Environmental Policy Act of 1969 (42 U.S.C. 4332).

(2) Any person who may wish to apply for an exemption under subsection (g) of this section for

that action may conduct a biological assessment to identify any endangered species or threatened

species which is likely to be affected by such action. Any such biological assessment must, however, be

conducted in cooperation with the Secretary and under the supervision of the appropriate Federal

agency.

(d) Limitation on Commitment of Resources.-After initiation of consultation required under

subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible

or irretrievable commitment of resources with respect to the agency action which has the effect of

foreclosing the formulation or implementation of any reasonable and prudent alternative measures which

would not violate subsection (a)(2).
INTERAGENCY COOPERATION REGULATIONS APPENDIX C

Hydropower Licensing and Endangered Species Page C-1

TITLE 50--WILDLIFE AND FISHERIES

CHAPTER IV--JOINT REGULATIONS

(UNITED STATES FISH AND

WILDLIFE SERVICE, 

 DEPARTMENT OF THE INTERIOR

AND NATIONAL MARINE FISHERIES

SERVICE,

PART 402--INTERAGENCY

COOPERATION--ENDANGERED

SPECIES ACT OF 1973, AS

AMENDED

 Subpart A--General

Sec.

402.01 Scope.

402.02 Definitions.

402.03 Applicability.

402.04 Counterpart regulations.

402.05 Emergencies.

402.06 Coordination with other

environmental reviews.

402.07 Designation of lead agency.

402.08 Designation of non-Federal

representative.

402.09 Irreversible or irretrievable

commitment of resources.

Subpart B--Consultation Procedures

402.10 Conference on proposed

species or proposed critical habitat.

402.11 Early consultation.

402.12 Biological assessments.

402.13 Informal consultation.

402.14 Formal consultation.

402.15 Responsibilities of Federal 

 agency following issuance of a 

 biological opinion.

402.16 Reinitiation of formal 

consultation.

 Authority: 16 U.S.C. 1531 et seq.

 Source: 51 FR 19957, June 3, 1986,

unless otherwise noted.

Subpart A--General

Sec. 402.01 Scope.

 (a) This part interprets and

implements sections 7(a)-(d) [16 U.S.C.

1536(a)-(d)] of the Endangered Species

Act of 1973, as amended (``Act'').

Section 7(a) grants authority to and

imposes requirements upon Federal

agencies regarding endangered or

threatened species of fish, wildlife, or

plants (``listed species'') and habitat of

such species that has been designated

as critical (``critical habitat''). 

Section 7(a)(1) of the Act directs

Federal agencies, in consultation with

and with the assistance of the Secretary

of the Interior or of Commerce, as

appropriate, to utilize their authorities to

further the purposes of the Act by

carrying out conservation programs for

listed species. Such affirmative

conservation programs must comply

with applicable permit requirements (50

CFR parts 17, 220, 222, and 227) for

listed species and should be

coordinated with the appropriate

Secretary. Section 7(a)(2) of the Act

requires every Federal agency, in

consultation with and with the

assistance of the Secretary, to insure

that any action it authorizes, funds, or

carries out, in the United States or upon

the high seas, is not likely to jeopardize

the continued existence of any listed

species or results in the destruction or

adverse modification of critical habitat.

Section 7(a)(3) of the Act authorizes a

prospective permit or license applicant

to request the issuing Federal agency to

enter into early consultation with the

Service on a proposed action to

determine whether such action is likely

to jeopardize the continued existence of

listed species or result in the destruction

or adverse modification of critical

habitat. Section 7(a)(4) of the Act

requires Federal agencies to confer with

the Secretary on any action that is likely

to jeopardize the continued existence of

proposed species or result in the

destruction or adverse modification of

proposed critical habitat. Section 7(b) of

the Act requires the Secretary, after the

conclusion of early or formal

consultation, to issue a written 

statement setting forth the Secretary's

opinion detailing how the agency 

action affects listed species or critical

habitat Biological assessments are

required under section 7(c) of the Act if

listed species or critical habitat may 

be present in the area affected by any

major construction activity as 

defined in Sec. 404.02. Section 7(d) of

the Act prohibits Federal agencies and

applicants from making any irreversible

or irretrievable commitment of

resources which has the effect of

foreclosing the formulation or

implementation of reasonable and

prudent alternatives which would avoid

jeopardizing the continued existence of

listed species or resulting in the

destruction or adverse modification of

critical habitat. Section 7(e)-(o)(1) of the

Act provide procedures for granting

exemptions from the requirements of

section 7(a)(2). Regulations governing

the submission of exemption

applications are found at 50 CFR part

451, and regulations governing the

exemption process are found at 

50 CFR parts 450, 452, and 453.

 (b) The U.S. Fish and Wildlife Service

(FWS) and the National Marine 

Fisheries Service (NMFS) share

responsibilities for administering the 

Act. The Lists of Endangered and

Threatened Wildlife and Plants are 

found in 50 CFR 17.11 and 17.12 and

the designated critical habitats are 

found in 50 CFR 17.95 and 17.96 and

50 CFR part 226. Endangered or 

threatened species under the

jurisdiction of the NMFS are located in

50 CFR 222.23(a) and 227.4. If the

subject species is cited in 50 CFR

222.23(a) or 227.4, the Federal agency

shall contact the NMFS. For all other

listed species the Federal Agency shall

contact the FWS.

Sec. 402.02 Definitions.

 Act means the Endangered Species

Act of 1973, as amended, 16 U.S.C. 

1531 et seq.

 Action means 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. Examples

include, but are not 

limited to:

 (a) actions intended to conserve

listed species or their habitat;

 (b) the promulgation of regulations;

 (c) the granting of licenses, contracts,

leases, easements, rights-of-way,

permits, or grants-in-aid; or

 (d) actions directly or indirectly

causing modifications to the land, water,

or air.

 Action area means all areas to be

affected directly or indirectly by 

the Federal action and not merely the

immediate area involved in the 

action.

 Applicant refers to any person, as

defined in section 3(13) of the 

Act, who requires formal approval or

authorization from a Federal agency 

as a prerequisite to conducting the

action.

 Biological assessment refers to the

information prepared by or under 

the direction of the Federal agency

concerning listed and proposed 
APPENDIX C INTERAGENCY COOPERATION REGULATIONS

Page C-2 Hydropower Licensing and Endangered Species 

species and designated and proposed

critical habitat that may be present 

in the action area and the evaluation

potential effects of the action on 

such species and habitat.

 Biological opinion is the document

that states the opinion of the Service as

to whether or not the Federal action is

likely to jeopardize the continued

existence of listed species or result in

the destruction or adverse modification

of critical habitat.

 Conference is a process which

involves informal discussions between 

a Federal agency and the Service under

section 7(a)(4) of the Act regarding the

impact of an action on proposed

species or proposed critical habitat and

recommendations to minimize or avoid

the adverse effects.

 Conservation recommendations are

suggestions of the Service regarding

discretionary measures to minimize or

avoid adverse effects of a proposed

action on listed species or critical

habitat or regarding the development of

information.

 Critical habitat refers to an area

designated as critical habitat listed in 50

CFR parts 17 or 226.

 Cumulative effects are those effects

of future State or private activities, not

involving Federal activities, that are

reasonably certain to occur within the

action area of the Federal action subject

to consultation.

 Designated non-Federal

representative refers to a person

designated by the Federal agency as its

representative to conduct informal

consultation and/or to prepare any

biological assessment.

 Destruction or adverse modification

means a direct or indirect alteration that

appreciably diminishes the value of

critical habitat for both the survival and

recovery of a listed species. Such

alterations include, but actions

adversely modifying any of those

physical or biological features that were

the basis for determining the habitat to

be critical.

 Director refers to the Assistant

Administrator for Fisheries for the 

National Oceanic and Atmospheric

Administration, or his authorized 

representative; or the Fish and Wildlife

Service regional director, or his

authorized representative, for the region

where the action would be carried out.

 Early consultation is a process

requested by a Federal agency on 

behalf of a prospective applicant under

section 7(a)(3) of the Act.

 Effects of the action refers to the

direct and indirect effects of an action

on the species or critical habitat,

together with the effects of other

activities that are interrelated or

interdependent with that action, that will

be added to the environmental baseline.

The environmental baseline includes the

past and present impacts of all Federal,

State, or private actions and other

human activities in the action area, the

anticipated impacts of all proposed

Federal projects in the action area that

have already undergone formal or early

section 7 consultation, and the impact of

State or private actions which are 

contemporaneous with the consultation

in process. Indirect effects are those

that are caused by the proposed action

and are later in time, but still are

reasonably certain to occur. Interrelated

actions are those that are part of a

larger action and depend on the larger

action for their justification.

Interdependent actions are those that

have no independent utility apart from

the action under consideration.

 Formal consultation is a process

between the Service and the Federal 

agency that commences with the

Federal agency's written request for

consultation under section 7(a)(2) of the

Act and concludes with the Service's

issuance of the biological opinion under

section 7(b)(3) of the Act.

 Incidental take refers to takings that

result from, but are not the purpose of,

carrying out an otherwise lawful activity

conducted by the Federal agency or

applicant.

 Informal consultation is an optional

process that includes all discussions,

correspondence, etc., between the

Service and the Federal agency or the

designated non-Federal representative

prior to formal consultation, if required.

 Jeopardize the continued existence of

means to engage in an action that

reasonably would be expected, directly

or indirectly, to reduce appreciably the

likelihood of both the survival and

recovery of a listed species in the wild

by reducing the reproduction, numbers,

or distribution of that species.

 Listed species means any species of

fish, wildlife, or plant which has been

determined to be endangered or

threatened under section 4 of the Act.

Listed species are found in 50 CFR

17.11-17.12.

 Major construction activity is a

construction project (or other 

undertaking having similar physical

impacts) which is a major Federal 

action significantly affecting the quality

of the human environment as referred to

in the National Environmental Policy Act

[NEPA, 42 U.S.C. 4332(2)(C)].

 Preliminary biological opinion refers

to an opinion issued as a result of early

consultation.

 Proposed critical habitat means

habitat proposed in the Federal Register

to be designated or revised as critical

habitat under section 4 of the Act for

any listed or proposed species.

 Proposed species means any

species of fish, wildlife, or plant that is

proposed in the Federal Register to be

listed under section 4 of the Act.

 Reasonable and prudent alternatives

refer to alternative actions identified

during formal consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that can be implemented consistent with

the scope of the Federal agency's legal 

authority and jurisdiction, that is

economically and technologically 

feasible, and that the Director believes

would avoid the likelihood of 

jeopardizing the continued existence of

listed species or resulting in the

destruction or adverse modification of

critical habitat.

 Reasonable and prudent measures

refer to those actions the Director 

believes necessary or appropriate to

minimize the impacts, i.e., amount or 

extent, of incidental take.

 Recovery means improvement in the

status of listed species to the point at

which listing is no longer appropriate

under the criteria set out in section

4(a)(1) of the Act.

 Service means the U.S. Fish and

Wildlife Service or the National 

Marine Fisheries Service, as

appropriate.

Sec. 402.03 Applicability.

 Section 7 and the requirements of

this part apply to all actions in which

there is discretionary Federal

involvement or control.

Sec. 402.04 Counterpart regulations.

 The consultation procedures set forth

in this part may be superseded for a

particular Federal agency by joint

counterpart regulations among that

agency, the Fish and Wildlife Service,

and the National Marine Fisheries
INTERAGENCY COOPERATION REGULATIONS APPENDIX C

Hydropower Licensing and Endangered Species Page C-3

Service. Such counterpart regulations

shall be published in the Federal

Register in proposed form and shall be

subject to public comment for at least

60 days before final rules are published.

Sec. 402.05 Emergencies.

 (a) Where emergency circumstances

mandate the need to consult in an 

expedited manner, consultation may be

conducted informally through alternative

procedures that the Director determines

to be consistent with the requirements

of sections 7(a)-(d) of the Act. This

provision applies to situations involving

acts of God, disasters, casualties, 

national defense or security

emergencies, etc.

 (b) Formal consultation shall be

initiated as soon as practicable 

after the emergency is under control.

The Federal agency shall submit

information on the nature of the

emergency action(s), the justification for

the expedited consultation, and the

impacts to endangered or threatened

species and their habitats. The Service

will evaluate such information and issue

a biological opinion including the

information and recommendations given

during the emergency consultation.

Sec. 402.06 Coordination with other

environmental reviews.

 (a) Consultation, conference, and

biological assessment procedures 

under section 7 may be consolidated

with interagency cooperation

procedures required by other statutes,

such as the National Environmental

Policy Act (NEPA) (42 U.S.C. 4321 et

seq., implemented at 40 CFR Parts

1500-1508) or the Fish and Wildlife

Coordination Act (FWCA) (16 U.S.C.

661 et seq.). Satisfying the

requirements of these other statutes,

however, does not in itself relieve a

Federal agency of its obligations to

comply with the procedures set forth in

this part or the substantive requirements

of section 7. The Service will attempt to

provide a coordinated review and

analysis of all environmental 

requirements.

 (b) Where the consultation or

conference has been consolidated with 

the interagency cooperation procedures

required by other statutes such as

NEPA or FWCA, the results should be

included in the documents required by

those statutes.

Sec. 402.07 Designation of lead

agency.

 When a particular action involves

more than one Federal agency, the

consultation and conference

responsibilities may be fulfilled through

a lead agency. Factors relevant in

determining an appropriate lead agency 

include the time sequence in which the

agencies would become involved, the

magnitude of their respective

involvement, and their relative expertise

with respect to the environmental

effects of the action. The Director shall

be notified of the designation in writing

by the lead agency.

Sec. 402.08 Designation of

non-Federal representative.

 A Federal agency may designate a

non-Federal representative to conduct

informal consultation or prepare a

biological assessment by giving written

notice to the Director of such

designation. If a permit or license

applicant is involved and is not the

designated non-Federal representative,

then the applicant and Federal agency

must agree on the choice of the

designated non-Federal representative.

If a biological assessment is prepared

by the designated non-Federal

representative, the Federal agency shall

furnish guidance and supervision and

shall independently review and evaluate

the scope and contents of the biological

assessment. The ultimate responsibility

for compliance with section 7 remains

with the Federal agency.

Sec. 402.09 Irreversible or

irretrievable commitment of

resources.

 After initiation or reinitiation of

consultation required under section

7(a)(2) of the Act, the Federal agency

and any applicant shall make no

irreversible or irretrievable commitment

of resources with respect to the agency

action which has the effect of

foreclosing the formulation or

implementation of any reasonable and

prudent alternatives which would avoid

violating section 7(a)(2). This prohibition

is in force during the consultation

process and continues until the

requirements of section 7(a)(2) are

satisfied. This provision does not 

apply to the conference requirement for

proposed species or proposed critical

habitat under section 7(a)(4) of the Act.

Subpart B--Consultation Procedures

Sec. 402.10 Conference on proposed

species or proposed critical 

habitat.

 (a) Each Federal agency shall confer

with the Service on any action which is

likely to jeopardize the continued

existence of any proposed species or

result in the destruction or adverse

modification of proposed critical habitat.

The conference is designed to assist

the Federal agency and any applicant in

identifying and resolving potential 

conflicts at an early stage in the

planning process.

 (b) The Federal agency shall initiate

the conference with the Director. The

Service may request a conference if,

after a review of available information, it

determines that a conference is

required for a particular action.

 (c) A conference between a Federal

agency and the Service shall consist of

informal discussions concerning an

action that is likely to jeopardize the

continued existence of the proposed

species or result in the destruction or

adverse modification of the proposed

critical habitat at issue. Applicants may

be involved in these informal

discussions to the greatest extent

practicable. During the conference, the

Service will make advisory

recommendations, if any, on ways to

minimize or avoid adverse effects. If the

proposed species is subsequently listed

or the proposed critical habitat is

designated prior to completion of the

action, the Federal agency must review

the action to determine whether formal

consultation is required.

 (d) If requested by the Federal

agency and deemed appropriate by the

Service, the conference may be

conducted in accordance with the

procedures for formal consultation in

Sec. 402.14. An opinion issued at the

conclusion of the conference may be

adopted as the biological opinion when

the species is listed or critical habitat is

designated, but only if no significant

new information is developed (including

that developed during the rulemaking

process on the proposed listing or

critical habitat designation) and no
APPENDIX C INTERAGENCY COOPERATION REGULATIONS

Page C-4 Hydropower Licensing and Endangered Species 

significant changes to the Federal

action are made that would alter the

content of the opinion. An incidental

take statement provided with a

conference opinion does not become

effective unless the Service adopts the

opinion once the listing is final.

 (e) The conclusions reached during a

conference and any recommendations

shall be documented by the Service and

provided to the Federal agency and to

any applicant. The style and magnitude

of this document will vary with the

complexity of the conference. If formal 

consultation also is required for a

particular action, then the Service 

will provide the results of the conference

with the biological opinion.

Sec. 402.11 Early consultation.

 (a) Purpose. Early consultation is

designed to reduce the likelihood 

of conflicts between listed species or

critical habitat and proposed actions

and occurs prior to the filing of an

application for a Federal permit or

license. Although early consultation is

conducted between the Service and the

Federal agency, the prospective

applicant should be involved throughout

the consultation process.

 (b) Request by prospective applicant.

If a prospective applicant has reason to

believe that the prospective action may

affect listed species or critical habitat, it

may request the Federal agency to

enter into early consultation with the

Service. The prospective applicant must

certify in writing to the Federal agency

that (1) it has a definitive proposal

outlining the action and its effects and

(2) it intends to implement its proposal,

if authorized.

 (c) Initiation of early consultation. If

the Federal agency receives the

prospective applicant's certification in

paragraph (b) of this section, then the

Federal agency shall initiate early

consultation with the Service. This

request shall be in writing and contain

the information outlined in Sec.

402.14(c) and, if the action is a major

construction activity, the biological

assessment as outlined in Sec. 402.12.

 (d) Procedures and responsibilities.

The procedures and responsibilities for

early consultation are the same as

outlined in Sec. 402.14(c)-(j) for formal

consultation, except that all references 

to the ``applicant'' shall be treated as

the ``prospective applicant'' and all

references to the ``biological opinion'' or

the ``opinion'' shall be treated as the

``preliminary biological opinion'' for the 

purpose of this section.

 (e) Preliminary biological opinion. The

contents and conclusions of a

preliminary biological opinion are the

same as for a biological opinion issued

after formal consultation except that the

incidental take statement provided with

a preliminary biological opinion does not 

constitute authority to take listed

species.

 (f) Confirmation of preliminary

biological opinion as final biological

opinion. A preliminary biological opinion

may be confirmed as a biological

opinion issued after formal consultation

if the Service reviews the proposed

action and finds that there have been no

significant changes in the action as

planned or in the information used

during the early consultation. A written

request for confirmation of the

preliminary biological opinion should be

submitted after the prospective

applicant applies to the Federal agency

for a permit or license but prior to the

issuance of such permit or license.

Within 45 days of receipt of the Federal

agency's request, the Service shall

either:

 (1) Confirm that the preliminary

biological opinion stands as a final

biological opinion; or

 (2) If the findings noted above cannot

be made, request that the Federal

agency initiate formal consultation.

Sec. 402.12 Biological assessments.

 (a) Purpose. A biological assessment

shall evaluate the potential effects of the

action on listed and proposed species

and designated and proposed critical

habitat and determine whether any such

species or habitat are likely to be

adversely affected by the action and is

used in determining whether formal

consultation or a conference is

necessary.

 (b) Preparation requirement. (1) The

procedures of this section are required

for Federal actions that are ``major

construction activities''; provided that a

contract for construction was not

entered into or actual construction was

not begun on or before November 10,

1978. Any person, including those who

may wish to apply for an exemption

from section 7(a)(2) of the Act, may

prepare a biological assessment under

the supervision of the Federal agency

and in cooperation with the Service

consistent with the procedures and

requirements of this section. An

exemption from the requirements of

section 7(a)(2) is not permanent unless

a biological assessment has been

prepared.

 (2) The biological assessment shall

be completed before any contract for

construction is entered into and before

construction is begun.

 (c) Request for information. The

Federal agency or the designated 

non-Federal representative shall convey

to the Director either (1) a written

request for a list of any listed or

proposed species or designated or

proposed critical habitat that may be

present in the action area; or (2) a

written notification of the species and

critical habitat that are being included in

the biological assessment.

 (d) Director's response. Within 30

days of receipt of the notification of, or

the request for, a species list, the

Director shall either concur with or

revise the list or, in those cases where

no list has been provided, advise the

Federal agency or the designated

non-Federal representative in writing

whether, based on the best scientific

and commercial data available, any

listed or proposed species or

designated or proposed critical habitat

may be present in the action area. In

addition to listed and proposed species,

the Director will provide a list of

candidate species that may be present

in the action area. Candidate species

refers to any species being considered

by the Service for listing as endangered

or threatened species but not yet the

subject of a proposed rule. Although

candidate species have no legal status

and are accorded no protection under

the Act, their inclusion will alert the

Federal agency of potential proposals or

listings.

 (1) If the Director advises that no

listed species or critical habitat may be

present, the Federal agency need not

prepare a biological assessment and

further consultation is not required. If

only proposed species or proposed

critical habitat may be present in the

action area, then the Federal agency

must confer with the Service if required

under Sec. 402.10, but preparation of a

biological assessment is not required

unless the proposed listing and/or

designation becomes final.

 (2) If a listed species or critical
INTERAGENCY COOPERATION REGULATIONS APPENDIX C

Hydropower Licensing and Endangered Species Page C-5

habitat may be present in the action

area, the Director will provide a species

list or concur with the species list

provided. The Director also will provide

available information (or references

thereto) regarding these species and

critical habitat, and may recommend

discretionary studies or surveys that

may provide a better information base

for the preparation of an assessment.

Any recommendation for studies or

surveys is not to be construed as the

Service's opinion that the Federal

agency has failed to satisfy the

information standard of section 7(a)(2)

of the Act.

 (e) Verification of current accuracy of

species list. If the Federal agency or the

designated non-Federal representative

does not begin preparation of the

biological assessment within 90 days of

receipt of (or concurrence with) the

species list, the Federal agency or the 

designated non-Federal representative

must verify (formally or informally) with

the Service the current accuracy of the

species list at the time the preparation

of the assessment is begun.

 (f) Contents. The contents of a

biological assessment are at the 

discretion of the Federal agency and will

depend on the nature of the Federal

action. The following may be considered

for inclusion:

 (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.

 (g) Incorporation by reference. If a

proposed action requiring the

preparation of a biological assessment

is identical, or very similar, to a previous

action for which a biological assessment

was prepared, the Federal agency may

fulfill the biological assessment

requirement for the proposed action by

incorporating by reference the earlier

biological assessment, plus any

supporting data from other documents

that are pertinent to the consultation,

into a written certification that:

 (1) The proposed action involves

similar impacts to the same species 

in the same geographic area;

 (2) No new species have been listed

or proposed or no new critical habitat

designated or proposed for the action

area; and

 (3) The biological assessment has

been supplemented with any relevant

changes in information.

 (h) Permit requirements. If conducting

a biological assessment will involve the

taking of a listed species, a permit

under section 10 of the Act (16 U.S.C.

1539) and part 17 of this title (with

respect to species under the jurisdiction

of the FWS) or parts 220, 222, and 227

of this title (with respect to species

under the jurisdiction of the NMFS) is

required.

 (i) Completion time. The Federal

agency or the designated non-Federal

representative shall complete the

biological assessment within 180 days

after its initiation (receipt of or

concurrence with the species list)

unless a different period of time is

agreed to by the Director and the

Federal agency. If a permit or license

applicant is involved, the 180-day period

may not be extended unless the agency

provides the applicant, before the close

of the 180-day period, with a written

statement setting forth the estimated

length of the proposed extension and

the reasons why such an extension is

necessary.

 (j) Submission of biological

assessment. The Federal agency shall 

submit the completed biological

assessment to the Director for review. 

The Director will respond in writing

within 30 days as to whether or not he

concurs with the findings of the

biological assessment. At the option of

the Federal agency, formal consultation

may be initiated under Sec. 402.14(c)

concurrently with the submission of the

assessment.

 (k) Use of the biological assessment.

(1) The Federal agency shall use the

biological assessment in determining

whether formal consultation or a

conference is required under Sec.

402.14 or Sec. 402.10, respectively. If

the biological assessment indicates that

there are no listed species or critical

habitat present that are likely to be 

adversely affected by the action and the

Director concurs as specified in

paragraph (j) of this section, then formal

consultation is not required. If the

biological assessment indicates that the

action is not likely to jeopardize the

continued existence of proposed

species or result in the destruction or

adverse modification of proposed critical

habitat, and the Director concurs, then a

conference is not required.

 (2) The Director may use the results

of the biological assessment in (i)

determining whether to request the

Federal agency to initiate formal 

consultation or a conference, (ii)

formulating a biological opinion, or 

(iii) formulating a preliminary biological

opinion.

Sec. 402.13 Informal consultation.

 (a) Informal consultation is an

optional process that includes all

discussions, correspondence, etc.,

between the Service and the Federal

agency or the designated non-Federal

representative, designed to assist the

Federal agency in determining whether

formal consultation or a conference is

required. If during informal consultation

it is determined by the Federal agency,

with the written concurrence of the

Service, that the action is not likely to

adversely affect listed species or critical

habitat, the consultation process is

terminated, and no further action is

necessary.

 (b) During informal consultation, the

Service may suggest modifications to

the action that the Federal agency and

any applicant could implement to avoid

the likelihood of adverse effects to listed 

species or critical habitat.

Sec. 402.14 Formal consultation.

 (a) Requirement for formal

consultation. Each Federal agency shall 

review its actions at the earliest possible

time to determine whether any action

may affect listed species or critical

habitat. If such a determination is made,

formal consultation is required, except

as noted in paragraph (b) of this

section. The Director may request a

Federal agency to enter into

consultation if he identifies any action of

that agency that may affect listed

species or critical habitat and for which

there has been no consultation. When

such a request is made, the Director

shall forward to the Federal agency a

written explanation of the basis for the

request.

 (b) Exceptions. (1) A Federal agency

need not initiate formal consultation if,
APPENDIX C INTERAGENCY COOPERATION REGULATIONS

Page C-6 Hydropower Licensing and Endangered Species 

as a result of the preparation of a

biological assessment under Sec.

402.12 or as a result of informal

consultation with the Service under Sec.

402.13, the Federal agency determines,

with the written concurrence of the

Director, that the proposed action is not

likely to adversely affect any listed

species or critical habitat.

 (2) A Federal agency need not initiate

formal consultation if a preliminary

biological opinion, issued after early

consultation under Sec. 402.11, is

confirmed as the final biological opinion.

 (c) Initiation of formal consultation. A

written request to initiate formal

consultation shall be submitted to the

Director and shall include:

 (1) A description of the action to be

considered;

 (2) A description of the specific area

that may be affected by the action;

 (3) A description of any listed species

or critical habitat that may be affected

by the action;

 (4) A description of the manner in

which the action may affect any listed

species or critical habitat and an

analysis of any cumulative effects;

 (5) Relevant reports, including any

environmental impact statement, 

environmental assessment, or biological

assessment prepared; and

 (6) Any other relevant available

information on the action, the affected

listed species, or critical habitat.

Formal consultation shall not be initiated

by the Federal agency until any required

biological assessment has been

completed and submitted to the Director

in accordance with Sec. 402.12. Any

request for formal consultation may

encompass, subject to the approval of

the Director, a number of similar

individual actions within a given

geographical area or a segment of a

comprehensive plan. This does not

relieve the Federal agency of the

requirements for considering the effects

of the action as a whole.

 (d) Responsibility to provide best

scientific and commercial data

available. The Federal agency

requesting formal consultation shall

provide the Service with the best

scientific and commercial data available

or which can be obtained during the

consultation for an adequate review of

the effects that an action may have

upon listed species or critical habitat.

This information may include the results

of studies or surveys conducted by the

Federal agency or the designated 

non-Federal representative. The Federal

agency shall provide any applicant with

the opportunity to submit information for

consideration during the consultation.

 (e) Duration and extension of formal

consultation. Formal consultation

concludes within 90 days after its

initiation unless extended as provided

below. If an applicant is not involved,

the Service and the Federal agency

may mutually agree to extend the

consultation for a specific time period. If

an applicant is involved, the Service and

the Federal agency may mutually agree

to extend the consultation provided that

the Service submits to the applicant,

before the close of the 90 days, a

written statement setting forth:

 (1) The reasons why a longer period

is required,

 (2) The information that is required to

complete the consultation, 

and

 (3) The estimated date on which the

consultation will be completed.

A consultation involving an applicant

cannot be extended for more than 60

days without the consent of the

applicant. Within 45 days after

concluding formal consultation, the

Service shall deliver a biological opinion

to the Federal agency and any

applicant.

 (f) Additional data. When the Service

determines that additional data would

provide a better information base from

which to formulate a biological opinion,

the Director may request an extension

of formal consultation and request that

the Federal agency obtain additional

data to determine how or to what extent

the action may affect listed species or

critical habitat. If formal consultation is

extended by mutual agreement

according to Sec. 402.14(e), the Federal

agency shall obtain, to the extent

practicable, that data which can be

developed within the scope of the

extension. The responsibility for

conducting and funding any studies

belongs to the Federal agency and the

applicant, not the Service. The Service's

request for additional data is not to be 

construed as the Service's opinion that

the Federal agency has failed to satisfy

the information standard of section

7(a)(2) of the Act. If no extension of

formal consultation is agreed to, the

Director will issue a biological opinion

using the best scientific and commercial

data available.

 (g) Service responsibilities. Service

responsibilities during formal

consultation are as follows:

 (1) Review all relevant information

provided by the Federal agency or

otherwise available. Such review may

include an on-site inspection of the

action area with representatives of the

Federal agency and the applicant.

 (2) Evaluate the current status of the

listed species or critical habitat.

 (3) Evaluate the effects of the action

and cumulative effects on the listed

species or critical habitat.

 (4) Formulate its biological opinion as

to whether the action, taken together

with cumulative effects, is likely to

jeopardize the continued existence of

listed species or result in the destruction

or adverse modification of critical

habitat.

 (5) Discuss with the Federal agency

and any applicant the Service's review

and evaluation conducted under

paragraphs (g)(1) through (3) of this

section, the basis for any finding in the

biological opinion, and the availability of

reasonable and prudent alternatives (if a

jeopardy opinion is to be issued) that

the agency and the applicant can take

to avoid violation of section 7(a)(2). The

Service will utilize the expertise of the

Federal agency and any applicant in

identifying these alternatives. If

requested, the Service shall make

available to the Federal agency the draft

biological opinion for the purpose of

analyzing the reasonable and prudent

alternatives. The 45-day period in which

the biological opinion must be delivered

will not be suspended unless the

Federal agency secures the written

consent of the applicant to an extension

to a specific date. The applicant may

request a copy of the draft opinion from

the Federal agency. All comments on

the draft biological opinion must be

submitted to the Service through the

Federal agency, although the applicant

may send a copy of its comments

directly to the Service. The Service will

not issue its biological opinion prior to

the 45-day or extended deadline while

the draft is under review by the Federal

agency. However, if the Federal agency

submits comments to the Service

regarding the draft biological opinion

within 10 days of the deadline for

issuing the opinion, the Service is

entitled to an automatic 10-day

extension on the deadline.

 (6) Formulate discretionary

conservation recommendations, if any, 
INTERAGENCY COOPERATION REGULATIONS APPENDIX C

Hydropower Licensing and Endangered Species Page C-7

which will assist the Federal agency in

reducing or eliminating the impacts that

its proposed action may have on listed

species or critical habitat.

 (7) Formulate a statement concerning

incidental take, if such take may occur.

 (8) In formulating its biological

opinion, any reasonable and prudent

alternatives, and any reasonable and

prudent measures, the Service will use

the best scientific and commercial data

available and will give appropriate

consideration to any beneficial actions

taken by the Federal agency or

applicant, including any actions taken

prior to the initiation of consultation.

 (h) Biological opinions. The biological

opinion shall include:

 (1) A summary of the information on

which the opinion is based;

 (2) A detailed discussion of the

effects of the action on listed species or

critical habitat; and

 (3) The Service's opinion on whether

the action is likely to jeopardize the

continued existence of a listed species

or result in the destruction or adverse

modification of critical habitat (a

``jeopardy biological opinion''); or, the

action is not likely to jeopardize the 

continued existence of a listed species

or result in the destruction or adverse

modification of critical habitat (a ``no

jeopardy'' biological opinion). A

``jeopardy'' biological opinion shall

include reasonable and prudent

alternatives, if any. If the Service is

unable to develop such alternatives, it

will indicate that to the best of its

knowledge there are no reasonable and

prudent alternatives.

 (i) Incidental take. (1) In those cases

where the Service concludes that an

action (or the implementation of any

reasonable and prudent alternatives)

and the resultant incidental take of listed

species will not violate section 7(a)(2),

and, in the case of marine mammals,

where the taking is authorized pursuant

to section 101(a)(5) of the Marine 

Mammal Protection Act of 1972, the

Service will provide with the biological

opinion a statement concerning

incidental take that:

 (i) Specifies the impact, i.e., the

amount or extent, of such incidental

taking on the species;

 (ii) Specifies those reasonable and

prudent measures that the Director

considers necessary or appropriate to

minimize such impact;

 (iii) In the case of marine mammals,

specifies those measures that are

necessary to comply with section

101(a)(5) of the Marine Mammal 

Protection Act of 1972 and applicable

regulations with regard to such taking;

 (iv) Sets forth the terms and

conditions (including, but not limited to,

reporting requirements) that must be

complied with by the Federal agency or

any applicant to implement the

measures specified under 

paragraphs (i)(1)(ii) and (i)(1)(iii) of this

section; and

 (v) Specifies the procedures to be

used to handle or dispose of any 

individuals of a species actually taken.

 (2) Reasonable and prudent

measures, along with the terms and 

conditions that implement them, cannot

alter the basic design, location, scope,

duration, or timing of the action and may

involve only minor changes.

 (3) In order to monitor the impacts of

incidental take, the Federal agency or

any applicant must report the progress

of the action and its impact on the

species to the Service as specified in

the incidental take statement. The

reporting requirements will be

established in accordance with 50 CFR

13.45 and 18.27 for FWS and 50 CFR

220.45 and 228.5 for NMFS.

 (4) If during the course of the action

the amount or extent of incidental

taking, as specified under paragraph

(i)(1)(i) of this Section, is exceeded, the

Federal agency must reinitiate

consultation 

immediately.

 (5) Any taking which is subject to a

statement as specified in 

paragraph (i)(1) of this section and

which is in compliance with the terms

and conditions of that statement is not a

prohibited taking under the Act, and no

other authorization or permit under the

Act is required.

 (j) Conservation recommendations.

The Service may provide with the 

biological opinion a statement

containing discretionary conservation

recommendations. Conservation

recommendations are advisory and are

not intended to carry any binding legal

force.

 (k) Incremental steps. When the

action is authorized by a statute that

allows the agency to take incremental

steps toward the completion of the

action, the Service shall, if requested by

the Federal agency, issue a biological

opinion on the incremental step being

considered, including its views on the

entire action. Upon the issuance of such

a biological opinion, the Federal agency

may proceed with or authorize the

incremental steps of the action if:

 (1) The biological opinion does not

conclude that the incremental step

would violate section 7(a)(2);

 (2) The Federal agency continues

consultation with respect to the entire

action and obtains biological opinions,

as required, for each incremental step;

 (3) The Federal agency fulfills its

continuing obligation to obtain sufficient

data upon which to base the final

biological opinion on the entire action;

 (4) The incremental step does not

violate section 7(d) of the Act

concerning irreversible or irretrievable

commitment of resources; and

 (5) There is a reasonable likelihood

that the entire action will not violate

section 7(a)(2) of the Act.

 (l) Termination of consultation. (1)

Formal consultation is terminated with

the issuance of the biological opinion.

 (2) If during any stage of consultation

a Federal agency determines that its

proposed action is not likely to occur,

the consultation may be terminated by

written notice to the Service.

 (3) If during any stage of consultation

a Federal agency determines, with the

concurrence of the Director, that its

proposed action is not likely to

adversely affect any listed species or

critical habitat, the consultation is

terminated.

[51 FR 19957, June 3, 1986, as

amended at 54 FR 40350, Sept. 29,

1989]

Sec. 402.15 Responsibilities of

Federal agency following issuance of

a biological opinion.

 (a) Following the issuance of a

biological opinion, the Federal agency

shall determine whether and in what

manner to proceed with the action in

light of its section 7 obligations and the

Service's biological opinion.

 (b) If a jeopardy biological opinion is

issued, the Federal agency shall notify

the Service of its final decision on the

action.

 (c) If the Federal agency determines

that it cannot comply with the

requirements of section 7(a)(2) after

consultation with the Service, it may

apply for an exemption. Procedures for

exemption applications by Federal

agencies and others are found in 50

CFR part 451.
APPENDIX C INTERAGENCY COOPERATION REGULATIONS

Page C-8 Hydropower Licensing and Endangered Species 

Sec. 402.16 Reinitiation of formal

consultation.

 Reinitiation of formal consultation is

required and shall be requested by the

Federal agency or by the Service, where

discretionary Federal involvement or

control over the action has been

retained or is authorized by law and:

 (a) If the amount or extent of taking

specified in the incidental take

statement is exceeded;

 (b) If new information reveals effects

of the action that may affect listed

species or critical habitat in a manner or

to an extent not previously considered;

 (c) If the identified action is

subsequently modified in a manner 

that causes an effect to the listed

species or critical habitat that was not

considered in the biological opinion; or

 (d) If a new species is listed or critical

habitat designated that may be affected

by the identified action.
BIOLOGICAL ASSESSMENT GUIDELINES APPENDIX D

Hydropower Licensing and Endangered Species Page D-1

GUIDELINES FOR PREPARING A

BIOLOGICAL ASSESSMENT (BA)

 This document provides suggestions on how to organize the information in a

stand-alone biological assessment. The format is flexible so modify as appropriate. (If

the biological assessment is incorporated into an environmental assessment (EA) or

environmental impact statement (EIS), the location is shown in italics.)

The level of detail should be commensurate with the potential effects of the

project and the species involved. Not all the information discussed below will be

needed for every BA. 

1. Consultation History and Summary

Endangered Species Act section of EA or Relationship to Laws and Policies section of EIS

Cite the most recent list of species received from FWS and/or NMFS. Outline

any previous attempts to consult (meetings, correspondence, etc.). Include a table

summarizing the species considered in the analysis and the conclusions, as appropriate

(exhibit D-1). 

If species are included on the list of species, but is not considered in the BA,

explain why (no suitable habitat, etc.).

2. Description of the Project (who, what, where, when, and how)

Project location

Application section of EA and Purpose of Action section of EIS

Identify the applicant and the date the application was filed and, if appropriate, 

amended.

Identify the nearest town or city, county, state, section township, and range, and

any federal or Indian reservation lands located within the project boundary or affected

by the project. Include location map.
APPENDIX D BIOLOGICAL ASSESSMENT GUIDELINES

Page D-2 Hydropower Licensing and Endangered Species 

Exhibit D-1. Example of table summarizing species considered in BA.

Table 1. List of federally listed, proposed, and candidate species evaluated in

this biological assessment and our conclusions under section 7 of the

Endangered Species Act.

Common Name Scientific Name Species

Status

Species Finding Critical Habitat

Status/

Finding

Bald eagle Haliaeetus

leucocephalus

threatened not likely to

adversely affect

none

California redlegged frog

Rana aurora

draytonii

threatened not likely to

adversely affect

no effect

Valley elderberry

longhorn beetle

Desmocerus

californicus

dimorphus

threatened not likely to

adversely affect

none

California tiger

salamander

Ambystoma

califoriense

candidate not likely to

adversely affect

n/a

Mountain plover Charadrius

montanus

proposed not likely to

jeopardize

n/a

Delta smelt Hypomesus

transpacificus

threatened no effect downstream–no

effect

Central Valley

steelhead

Oncorhynchus

mykiss

endangered not likely to

adversely affect

downstream--

not likely to

adversely affect

Sacramento River

winter-run chinook

salmon

Oncorhynchus

tshawytscha

endangered not likely to

adversely affect

downstream--

not likely to

adversely affect

Central Valley

spring-run chinook

salmon

Oncorhynchus

tshawytscha

threatened not likely to

adversely affect

downstream

(proposed)–no

destruction or

adverse

modification

Fringed myotis bat Myotis evotis species of

concern

no effect n/a

Greene's tuctoria Tuctoria greenei endangered no effect none
BIOLOGICAL ASSESSMENT GUIDELINES APPENDIX D

Hydropower Licensing and Endangered Species Page D-3

Project description

Proposed Action and Alternatives section of EA and EIS

Briefly describe existing facilities and project operation. Describe any facilities

proposed to be constructed or modified and/or proposed changes to existing operation. 

Focus on aspects that are most relevant to the species being evaluated. Include a map

of project facilities.

Identify any measures proposed by the applicant, preliminary, draft, or final

mandatory conditions ( fishway prescriptions, land management conditions, water

quality certificate conditions, etc.), and measures recommended by staff. Reference

appropriate resource protection plans that have been developed.

Summarize the measures proposed by the applicant and recommended by staff

to protect, mitigate, or enhance listed species and their habitat. Include monitoring

plans.

If construction is proposed, describe construction methods and type of

equipment, timing and duration of construction (including instream construction), site

access, preparation and restoration, temporary construction areas (staging areas,

stockpile areas, etc.), extent of vegetation removal and disturbance, and borrow and

disposal sites.

Describe project maintenance activities, such as vegetation management, road

maintenance, etc.

3. Affected Environment and Species Account

Affected Environment subsection of EA or EIS, within the Threatened and Endangered Species

section. Description of project area is found in General Description of the River Basin of EA and

General Locale section of EIS.

For each listed, proposed, or candidate species (evaluation species), and

designated and proposed critical habitat, include sufficient information to understand

the potential effects of the project on the species or habitat. Don't give the specific

locations of the species and habitat in the BA if it may endanger the species. If

necessary, sensitive information can be provided to the Service under separate cover. 
APPENDIX D BIOLOGICAL ASSESSMENT GUIDELINES

Page D-4 Hydropower Licensing and Endangered Species 

Project area

Provide a brief discussion of the general project area and river basin, including,

but not limited to, predominant land uses and vegetative cover, climate, hydrology, and

topography.

Species background and requirements

Provide a background of the biology that's relevant to potential impacts of the

project, including aspects of biology that relate to proposed action. Include general

distribution of species and species status (trends in habitat and population numbers,

historical occurrence in project vicinity, amount of habitat remaining, etc.).

Species occurrence in area potentially affected by the project

Describe the abundance and distribution of evaluation species in the project

area, level of use, and timing of use. Summarize results of surveys, database

searches, literature reviews, and consultations. Reference survey reports.

Habitat description and use

Describe the habitat for the evaluation species, including amount, quality, and

suitability. Describe how the evaluation species use the habitat in the area affected by

the project. For example, for wildlife, describe use for nesting, perching, roosting,

migration, rearing, feeding, etc. For fish, describe use for migrating, spawning, rearing,

overwintering, etc. Include seasonal use patterns.

Critical habitat

Describe any critical habitat that has been designated or proposed that could

potentially be affected by the project. Identify specific habitat unit(s).

Recovery and other plans

Identify the existence of recovery plans for the listed species considered. 

Describe the relationship between the proposed action and any recovery units, describe

any recovery actions that may be applicable to the proposed action, and describe any

recovery plan tasks that apply to the project or the project vicinity. Also identify other

plans that relate to endangered species (habitat conservation plans, state species

conservation plans, etc).
BIOLOGICAL ASSESSMENT GUIDELINES APPENDIX D

Hydropower Licensing and Endangered Species Page D-5

4. Effects of the Proposed Project 

Environmental Impacts and Recommendations and Unavoidable Adverse Impact subsections of EA

and Environmental Effects and Recommendations and Unavoidable Adverse Impact sections of EIS,

under the Threatened and Endangered Species section. 

Cumulative effects are also discussed in Cumulative Effects section of EA and Cumulatively Affected

Resources and Cumulative Effects Summary sections of EIS. Where recommendations require the

balancing of developmental and non-developmental resources, additional discussion is found in the

Comprehensive Development section of an EA and Staff Conclusions section of EIS.

Listed, proposed, and candidate species and critical habitat

Describe any direct, indirect, and cumulative impacts, beneficial effects, and

effects of interrelated and interdependent actions (exhibit D-2). If no effects, say so

and document. The analysis should address effects on individuals as well as

populations. Where possible, quantify the effects.

Generally, determination of impact will depend on four factors: (1) which

biological resource is present; (2) the type of action; (3) the distance between the action

and the resource; and (4) the time of year. 

Describe the areal extent, timing, intensity, direction and duration of disturbance.

If possible, quantify the disturbance (e.g., number of acres; decibel level at a given

distance, degrees increase in water temperature). Distinguish between long-term and

short-term effects. Factor in the species sensitivity to change, resilience, and recovery

rate.

Put the effects into perspective. Describe the relative impact on the resources of

concern (e.g., the proportion of the local population impacted). 

Don't forget to address all the different phases of a project--construction or

modification of facilities, project operation or changes in project operation, maintenance

activities (such as road maintenance, right-of-way management), and recreational and

other land uses (such as grazing on project lands).

Discuss the effect of the proposed project on critical habitat, including effects on

constituent elements, where they exist, that formed the basis of the designation of the

critical habitat. See the final rule designating critical habitat for the particular species 

for more information.
APPENDIX D BIOLOGICAL ASSESSMENT GUIDELINES

Page D-6 Hydropower Licensing and Endangered Species 

Exhibit D-2. Description of effects.

Type of Effect Definition Example

direct effects direct or immediate

effects; effects directly

attributable to the

proposed action

blockage of migration

corridors; turbine

mortality; elevated

dissolved gas levels;

erosion resulting from

construction activities;

loss of old-growth habitat

indirect effects effects to individuals or

habitat that would result

later in time and are

reasonably certain to

occur

increased exposure to

predation and

competition; erosion

resulting from reservoir

fluctuations

cumulative effects effects of unrelated

future state or private

activities, not including

federal activities, that are

reasonably certain to

occur in the project area

loss of old-growth habitat

resulting from timber

cutting on private and

state-owned lands;

planned basin-wide

water diversions for

irrigation and water

supply

beneficial effects wholly positive effects implementation of

tributary protections;

improved habitat

resulting from increased

minimum flow releases

effects of interrelated actions* actions that are part of

the primary action and

dependent on the

primary action for their

justification

irrigation diversions from

a proposed project

reservoir

effects of interdependent actions* actions that have no

independent utility apart

from the primary action

single home

development along a

proposed project

reservoir

*Both interrelated and interdependent actions are assessed by applying the "but-for" test that asks

whether any action and its resulting impacts would occur "but-for" the proposed action (Consultation

Handbook). It is not important to differentiate between interrelated and interdependent actions.
BIOLOGICAL ASSESSMENT GUIDELINES APPENDIX D

Hydropower Licensing and Endangered Species Page D-7

Provide an analysis of cumulative impacts. Describe ongoing actions along with in the

project area. Describe measures that would avoid impacts or would benefit species in

addition to the proposed measures. Be specific as possible. Discuss the potential

effectiveness of the measures. If impacts can't be avoided, describe measures that

would minimize or mitigate impacts.

Discuss recommendations made by the Service or other entities.

Discuss alternatives considered (such as alternative penstock routes, minimum

flow releases, rights-of-way widths, etc.). 

Describe the need for monitoring--compliance monitoring or effectiveness

monitoring and adaptive management. Discuss monitoring methods, schedule,

contingency measures, reporting, etc.

Recovery and other plans

Discuss consistency with any draft or final species recovery plans, habitat

conservation plans, state species conservation plans, or other endangered species

plans. When such plans have been filed as comprehensive plans filed under section

10(a)(1)(A) of the Federal Power Act, discuss consistency of these plans in the

Comprehensive Plan section of the EA or EIS. 

Incidental take

To the degree possible, assess and describe the potential for take of listed

species. For example, disturbance during construction of a boat ramp and parking lot

would reduce the reproductive success of one pair of bald eagles for 1 year; or about

10 percent of migrating smolts are expected to be lost to turbine mortality.

5. Determination of Effect

Conclusions outlined in Environmental Impacts and Recommendations Section of EA or

Environmental Effects and Recommendations section of EIS

Make a determination of effect for each listed and proposed species and

designated and proposed critical habitat, briefly summarizing effects. See section of

main report and exhibit D-3 for additional information on making determinations.
APPENDIX D BIOLOGICAL ASSESSMENT GUIDELINES

1

 Topographic maps are available at http://www.topozone.com.

Page D-8 Hydropower Licensing and Endangered Species 

Exhibit D-3. Determinations of effect.

Listed Species or Designated Critical Habitat

no effect no direct or indirect effects

not likely to adversely effect beneficial, insignificant (very small in scale and

cannot be meaningfully measured, detected, or

evaluated), or discountable (extremely unlikely to

occur) effects

likely to adversely effect measurable effects or results in take

Proposed Species

no jeopardy jeopardy--an action that reasonably would be

expected, directly or indirectly, to reduce

appreciably the likelihood of both the survival and

recovery of a listed species in the wild by reducing

the reproduction, numbers, or distribution of that

species

jeopardy

 Proposed Critical Habitat

no adverse modification adverse modification--a direct or indirect alteration

that appreciably diminishes the value of critical

habitat for both the survival and recovery of a

listed species. adverse modification

6. Literature Cited

Literature Cited section of EA or EIS

This section will include citations for relevant reports that formed the basis for the

analysis in the BA or EA/EIS.

7. Attachments

Provide any documents or figures that were used to support the conclusions and

recommendations that may not have been provided to the Service. It is helpful to

include a topographic map.1