Mr. Douglas Pabst Division ofEnvironmental Planning

and Protection UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERI ES SERVICE Southeast Regional Office 263 13th Avenue South St. Petersburg, FL 33701 (727) 824-5312, FAX 824-5309 http://sero.nmfs.noaa.gov
F/SER3:EGH

U.S

. Environmental Protection Agency (EPA) 290 Broadway New York, NY 10007-1866
Dear Mr. Pabst:
This responds to your May 9, 2005, consultation letter/environmental assessment (EA) to NOAA's National Marine Fisheries Service (NMFS) for EPA's proposed modification to the designation offive ocean dredged material disposal sites (ODMDS) offofPuerto Rico's five major harbors: Yabucoa, Mayaguez, Ponce, Arecibo, and San Juan. Currently, each ofthe five sites can receive only dredged materials from the harbor for which it is named. The contemplated rule change would remove the geographic restrictions from the sites' designations

. Your EA is incorporated herein by reference. You requested our concurrence with the EA's conclusions

. We believe the EA adequately addresses the issues associated with threatened and endangered species under NMFS' purview. We have no additional comments. Ifyou have any questions, please contact Mr. Eric Hawk, fishery biologist, at (727) 824-5312, orby e-mail at Eric.Hawk@noaa.gov. For your future use, we are attaching recently revised guidelines for section 7 consultation and preparation ofbiological assessments, for distribution to your biologists

. Thank you.

File: 1514-22

.k

.2

.PR I/SER/2005/02010 David Bernhart Assistant Regional Administrator

for Protected Resources

INational Marine Fisheries Service Recommendations for the Contents of Biological Assessments and Biological Evaluations

When preparing a Biological Assessment (BA) or Biological Evaluation (BE), keep in mind that the people who read orreview this documentmay notbe familiar with the project area orwhat is proposed by the project. Therefore your BA or BE should present a clear line ofreasoning that explains the proposed project and how you determined the effects ofthe project on each threatened or endangered species in the project area. Try to avoid technicaljargon notreadily understandable to people outside your agency or area ofexpertise. Remember, this is a public document. Some things to consider and, ifappropriate, to include in your BA or BE, follow.
1. Whatis the difference between a Biological Evaluation and a Biological Assessment? By regulation, a Biological Assessment is prepared for "major construction activities" considered to be Federal actions significantly affecting the quality ofthe human environment as referred to in the National Environmental Policy Act of 1969 (NEPA) ©(4.2 U.S.C. 4332(2)(C)!!. ABAis required if listed species or critical habitat may be presentin the action area. A BA also may be recommended for other activities to ensure the agency's early involvement and increase the chances for resolution during informal consultation. Recommended contents for a BA are described in 50 CFR §402.12(f). Biological Evaluation is a generic term for all other types ofanalyses. Although agencies are not required to prepare a Biological Assessment for non-construction activities, 

### ifa listed species or critical habitatis likely to be affected, the agency mustprovide the Service with an evaluation on the likely effects ofthe action. Often this information is referred to as a BE. The Service uses this documentation along with any other available information to decide ifconcurrence with the agency's determination is warranted. Recommended contents are the same as for a BA, as referenced above.
The BAs and BEs should notbe confused with Environmental Assessments (EA) or Environmental Impact Statements (EIS) which may be required for NEP A projects. These EAs and EISs are designed to provide an analysis ofmultiple possible alternative actions on a variety of environmental, cultural, and social resources, and often use different definitions or standards.
2. Whatare you proposingto do?

• Describe the project. A project description will vary, depending on tl1e complexity ofthe project. For example, describing the placement and construction ofa new microwave tower may be relatively simple, but describing an alternative for improving range management likely would be more detailed and complex. Include sketches ifthey will help others understand your proposed action and its relationship with the species' habitat

• How are you (or the project proponent) planning on carrying outthe project? What tools or methods may be used? Howwill the site be accessed? 1• Describe the project area. Always include a map (topographic maps are particularly helpful). Provide photographs including aerials, ifavailable. Describe the project area (i.e., topography, vegetation, condition/trend).

• Describe currentmanagement or activities relevant to the project area. How will your project change the area?

• Supporting documents are very helpful. Ifyou have a mining plan, research proposal, NEP A or otherplanning document or any other documents regarding the project, attach them to the BA or BE.
3. Whatthreatened or endangered species may occurin the projectarea?
A request for a species list may be submitted to the Service, or the Federal action agency or its designated representative may develop the list. Ifyou have information to develop your own lists, the Service should be contacted periodically to ensure that changes in species' status or additions/deletions to the list are included. Sources ofinformation include, but are notlimited to, the Forest Service or Bureau ofLand Management, this office for marine species, members ofthe public or academic community, and books and various informational booklets. Due to budget constraints and staffshortages, we are only able to provide general, state-wide, or country-wide (territory-wide) species lists.
Use your familiarity with the project areawhen you develop your species lists. Sometimes a species may occur in the larger regional area near your project, butthe habitat necessary to supportthe species is notin the project area (including areas that may be beyond the immediate projectboundaries, butwithin the area ofinfluence ofthe project). If, for example, you know that the specific habitat type used by a species does notoccur in the project area, it does notneed to appear on the species list for the project. However, documentation ofyour reasoningis helpful for Service biologists or anyone else that may review the document.
4. Have you surveyed for species that are known to occur orhave potential habitat

### inthe proposedprojectarea?
The "notlmown to occur here" approach is a common flaw in many BNBEs. The operative word here is "lmown." Unless adequate surveys have been conducted or adequate information sources have been referenced, this statementis difficult to interpret. 

### Itbegs the questions "Have you looked?" and "Howhave you looked?" Always reference your information sources. Include a clear description ofyour survey methods so the reader can have confidence in your results. Answer such questions as: • How intensive was the survey? Did you look for suitable habitat or did you look for individuals? Did the survey cover the entire project area or only part ofit? Include maps ofareas surveyed ifappropriate. 2• Who did the surveys and when? Was the survey done during the time ofyear/day when the plantis growing orwhen the animal can be found (its active period)? Did the survey follow accepted protocols?

• Ifyou are not sure how to do a good survey for the species, the Service recommends contacting species experts. Specialized training is required before you can obtain a permit to survey for some species.

• Rememberthatyourevaluation of potentialimpactsfi-om aprojectdoes notendif the species is/are notfoundin theprojectarea. You muststi11evaluate what effects wouldbe expectedto thehabitat, even 1fitis notknown to be occupied. 

### 5. Provide background information onthe threatened or endangered species 

### in the project area. Describe the species in terms ofoverall range and population status. How many populations are known? How many occur in the project area? Whatpartofthe population will be affected by this project? Will the population's viability be affected? Whatis the current habitat condition and population size and status? Describe related items ofpast managementfor the species, such as stockingprograms, habitat improvements, or loss of habitat orindividuals caused by previous projects.
6. How

### will the projectaffectthe threatened or endangered species or critical habitatthat occurs 

### inthe projectarea?

• Ifyou believe the projectwill not affect the species, explain why.

• Ifyou think the project may affect the species, explain what the effects mightbe. The Endangered Species Act requires you consider all effects when determining ifan action funded, permitted, or carried outby a Federal agency may affect listed species. Effects you must consider include direct, indirect, and cumulative effects. Effects include those caused by interrelated and interdependent actions, notjustthe proposed action. Directeffects are those caused by the action and occur at the same time and place as the action. Indirect effects are caused by the action and are later in time butare reasonably certain to occur. Interrelated actions are those that are partofa larger action and depend on the larger action for theirjustification. Interdependent actions are those that have no significant independentutility apart from the action under consideration. Cumulative effects are those effects offuture State or private activities, notinvolving Federal activities, that are reasonably certain to occur within the action area ofthe Federal actions subject to consultation. • Describe measures tal<..en to avoid, reduce, or eliminate adverse effects or enhance beneficial effects to the species. Refer to conversations you had with species experts to achieve these results.

• Consider recovery potential ifthe project area contains historic range for a species. 3• Evaluate designated critical habitat areas by reviewing the physical or biological features essential to the conservation ofthe species. Even if no cn'acalhabitathas been designated for a species, the evaluation of theproject effectsmustinclude effects to the**habitat~** notjust the species.
7. Whatis your decision? The Federal action agency mustmake a determination ofeffect. Quite frequently, effect determinations are notnecessarily 

### wrong; they simply are notjustified in the assessment. The assessment should lead the reviewer through a discussion ofeffects Lo a logical, well-supported conclusion. Do not assume that the Service biologist is familiar with the project and/or its location and that there is no need to fully explain the impact the project may have on listed species. Ifthere is little or no connection orrationale provided to lead the reader from the project description to the effect determination, we cannot assume conditions that are notpresented in the assessment. Decisions mustbejustified biologically. The responsibility for mal<.i.ng the determination ofeffectfalls on the Federal action agency; however, the Service may ask the agency to revisit its decision or provide more data ifthe conclusion is not adequately supported by biological information.
You have three choices for each listed species or area ofcritical habitat:
1. "No effect" means there are absolutely no effects ofthe project, positive or negative. "No effect" does notinclude a smalleffect or an effect that is unlikelyto occur. Ifeffects are insignificant (in size) or discountable (extremely unlikely), a "may affect, butnotlikely to adversely affect" determination is appropriate.
2. "May affect- is notlikely to adversely affect" means that all effects are beneficial, insignificant, or discountable. Beneficial eflects have concurrentpositive effects without any adverse effects to the species or habitat (i.e., there can notbe "balancing," wherein the benefits of the projectwould be expected to outweigh the adverse effects- see #3 below). Insignificant effects relate to the size ofthe impact (and should notreach the scale where take occurs). Discountable effects are those extremely unlikely to occur. These determinations require written concurrence from the Service. Based onbestjudgement, a person would not: (1) be able to meaningfully measure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur. 3. "May affect- is likely to adversely affect" means that all adverse effects can notbe avoided. A combination ofbeneficial and adverse effects is still "likely to adversely affect," even ifthe neteffect is neutral orpositive. Adverse effects do notqualifY as discountable simply because we are not certain they will occur. The probability ofoccurrence mustbe extremely small to achieve discountability. Likewise, adverse effects do notmeetthe definition ofinsignificant because they are less than major. Ifthe adverse effect can be detected in any way orifit can be meaningfully articulated in a discussion ofthe results, then it is notinsignificant, it is likely to adversely affect. This requires formal consultation with the Service.
A fourth finding is possible for proposed species orproposed critical habitat: 4 

# • •4. "Is likely tojeopardize/adversely modify proposed species/critical habitat" is the appropriate conclusion when the action agency identifies situations in which the proposed action is likely tojeopardize the proposed species, or destroy or adversely modify the proposed critical habitat. Ifthis conclusion is reached, conference is required.
List the species experts you contacted when preparingthe BE or BAbutavoid statements that place the responsibility for the decision of "may affect" or "no effect" on the shoulders ofthe species experts. Remember, this decision is made by the Federal action agency. Provide supporting documentation, especially any agency reports or data that may notbe available to the Service. Include a list ofliterature cited. Prepared by: U.S. Fish and Wildlife Service Arizona Ecological Services Field Office January 1997
Revised by: U.S. Fish and Wildlife Service New Mexico Ecological Services Field Office 2105 Osuna NE Albuquerque, New Mexico 87113 (505) 761-4525 April1997
Revised by: National Marine Fisheries Service SoutheastRegional Office Protected Resources Division 263 13tl' Avenue South St. Petersburg, FL 33701 (727) 824-5312 May 2005



### 5OUTLINEEXAMPLE FORA BIOLOGICALASSESSMENT ORBIOLOGICALEVALUATION

A. Cover Letter -VERYIMPORTANT- Include purpose ofconsultation, project title, and consultation number (ifavailable). A determination needs to be made for each species. You have three options: 1) a "no effect" determination; 2) requesting concurrence with an "is notlikely to adversely affect" determination; 3) a "may affect, is likely to adversely aiTect" determination, and a request for formal consultation. Ifproposed species or critical habitat are included, state whether the projectis likely to result injeopardy to proposed species, or the destruction or adverse modification ofproposed critical habitat.
2. Project Description- Describe the proposed action and the project area. Be specific and quantify wheneverpossible.
3. ForEach Species 1. Description ofaffected environment (quantify wheneverpossible) 2. Description ofspecies biology 3. Describe current conditions for each species

a. Rangewide b. In project area c. Cumulative effects ofState and private actions in project area d. Other consultations ofFederal action agency in area to date 4. Describe critical habitat (ifapplicable) 5. Describe effects ofproposed action on each species and/or critical habitat.

a. Direct b. Indirect c. Interrelated and interdependent actions d. Incidental take
D. Conservation Measures (protective measures to minimize effects for each species)
E. Conclusions (effects determination for each species)
4. Literature Cited
5. List ofContacts Made/Preparers
6. Maps/ Photographs

6

# Guidance on Preparing an Initiation Package for Endangered Species Consultation

This document is intended to provide general guidance on the type and detail ofinformation that should beprovided to initiate consultation with US Fish and Wildlife Service (USFWS) and/or National Marine Fisheries Service (NOAA Fisheries). This is not intended to be an exhaustive document as specific projects mayrequire more or less information in orderto initiate consultation. Also, note that this contains guidance on the informationrequired to initiate formal consultation procedures with USFWS and/or NOAAFisheries. Additional information needs maybe identified during consultation. Texts in italics below are examples. Normal text is guidance. A glossary ofterms is appended.

INTRODUCTION Here is an example ofintroductory language: Thepurpose of this initiationpackage is to review theproposed[project name] in sufficient detail to determine to what extent theproposedaction may affect any of the threatened, endangered,proposed, orsensitive species anddesignated orproposedcritical habitats listed below. In addition, the following information isprovidedto comply with statutory requirements to use the bestscientific andcommercial information available when assessing the risksposedto listed and/orproposedspecies anddesignated and/orproposedcritical habitat byproposed federal actions. This initiationpackage isprepared in accordance with legal requirements set forth under regulations implementingSection 7oftheEndangeredSpeciesAct (50 CFR 402; 16

U.S. C. 1536 (c)). 

### Threatened, Endangered, Proposed Threatened or Proposed Endangered Species Example language: Thefollowing listedand proposedspecies maybeaffectedby theproposedaction:

common name (Scientific name) T

common name (Scientific name) E

common name (Scientific name) PT

common name (Scientific name) PE

7 

# •This list should include all ofthe species from the species lists you obtained from USFWS and NOAA Fisheries. Ifit doesn't, include a briefexplanation here and a more detailed explanation in your record to help USFWS, NOAA Fisheries and future staffunderstand your thought process for excluding a species from consideration.

Candidate Species, Sensitive Species and Species ofConcern Example language: Thefollowing candidate species, sensitive species, andspecies of concern may be affected by the proposedaction:

common name (Scientific name) [include state designation, 

### if appropriate}
Any State-listed species should be included here, ifthey are not federally listed. Do not forget that Action Agencies often have additional responsibilities to help prevent these species from becoming listed. Check your agency's guidelines. Critical Habitat Example language: The action addressedwithin this document falls within CriticalHabitat for {identify species 

## J.

CONSULTATION TO DATE "Consultation" underthe ESA consists ofdiscussions between the action agency, the applicant (ifany), and USFWS and NOAA Fisheries. Itis the sharing ofinformation about the proposed action and related actions, the species and environments affected, and means ofachieving project purposes while conserving the species and their habitats. Underthe ESA, there canbeboth formal and informal consultation. Bothprocesses are the same, but formal consultation has statutorytimeframes and otherrequirements (such as the submission ofthe information in this package). Summarize any consultation that has occurred thus far. Identifywhen consultation was requested (ifnot concurrent with this document). Be sure to summarize meetings, site visits and correspondence that were important to the decision-making process.

DESCRIPTION OFTHE PROPOSED ACTION The purpose ofthis section is to provide a clear and concise description oftheproposed activity and any interrelated orinterdependent actions. The following information is necessary for the consultationprocess on an action: 1. The action agencyproposing the action.
82. The authority(ies) the action agencywill use to undertake, approve, orfund the action. 3. The applicant, ifany. 4. The action to be authorized, funded, or carried out. 5. The location ofthe action. 5. Whenthe action will occur, and how long it will last. 6. How the action will be carried out 7. The purpose ofthe action. 8. Any interrelated orinterdependent actions, orthat none exist to the best ofyour knowledge. Describe and specify: WHO is going to do the action and under what authority, include the name and office ofthe action agency and the name and address ofthe applicant; WHATthe project or action is; WHERE theproject is (refer to attached maps); WHEN the action is goingto take place, including time line and implementation schedules; HOW the action will be accomplished, including the various activities that comprise the whole action, the methods, and the types of equipment used; WHY the action is proposed, including its purpose and need; and WHAT OTHER interrelated and interdependent actions are known. This combination ofactions are what is being consulted on for the 7(a)(2) analysis. Include a clear description ofall conservation measures and project mitigation such as avoidance measures, seasonal restrictions, compensation, restoration/creation (on-site and in-kind, off-site and in-kind, on-site and out-of-kind, off-site and out-of-kind), and use ofmitigation or conservationbanks. Here are some examples ofcommonlyoverlooked items to include in yourproject description: Type ofproject Project location Project footprint Avoidance areas Start and end times Construction access Staging/laydown areas Construction equipment and techniques Habitat status on site Habitat between work areas and endangered species locations Permanent vs. temporaryimpacts Surrounding land-use Hydrology and drainage patterns Duration of"temporary'' impacts

9

### Prevailing winds and expected seasonal shifts Restoration areas Conservation measures Compensation and set-asides Bank ratios and amounts Mitigation: what kind and who is responsible? Dust, erosion, and sedimentation controls Whether the project is growth-inducing or facilitates growth Whether the project is part ofa largerproject orplan What permits will need to be obtained Action Area 

### Describe all areas to be affected directly or indirectlybythe Federal action and not merelythe immediate area involved in the action. This includes any interrelated and interdependent actions. Remember that the action area is not based simply on the Federal action and should not be limited to the location ofthe Federal action. The same applies to the applicant's action. The action area is defined bymeasurable or detectable changes in land, air and water, orto other measurable factors that may elicit a response in the species or critical habitat. To determine the action area, we recommend that you first break the action down into its components 

### (e.g., vegetation clearing, construction ofcofferdams, storage areas, borrow areas, operations, maintenance, etc.,) to assess the potential stressors (impacts) resulting :from each component. Determine the stressors that are expected to result :from each component. For example, instream actions may mobilize sediments that travel downstream as increased turbidity and then settle out as sediments onthe stream substrate. Sound levels :from machinery maybe detectable hundreds offeet, thousands offeet, or even miles away. Use these distances when delineating the extent of your action area. Note: don't forget to subsequentlyreconstruct the action to assess the combined stressors ofthe components. You mayfind that some stressors are synergistically minimized or avoided, whereas other stressors may increase. Finally, describe the action area, including features and habitat types. Include photographs and an area map as well as a vicinitymap. The vicinity map for terrestrial projects shouldbe at a 1:24,000 scale with the USGS quad name included.

SPECIES ACCOUNTS AND STATUS OF THE SPECIES IN THE ACTION AREA Provide local information on affected individuals and populations, such as presence, numbers, life history, etc. Identify which threats to the species' persistence identified at the time oflisting are likelyto be present in the action area. Identify any additional threats that are likely to be present in the action area.

10

### Ifthe species has a distribution that is constrainedbylimiting factors, identifywhere in the action area factors are present that could support the species and where they are absent or limiting. For example, ifa species is limited to a narrow thermal range and a narrow humidityrange, show where in the action area the temperatures are sufficient to support the species, where the humidity is sufficient to support the species, and where those areas overlap. Include aspects ofthe species' biologythat relate to the impact ofthe action, such as sensitivity to or tolerance of: noise, light, heat, cold, inundation, smoke, sediments, dust, etc. For example, ifthe species is sensitiveto loud sounds orvibration, and yourproject involves loud tools or equipment, reference that aspect oftheir biology. Include citations for all sources ofinformation Describe habitat use in terms ofbreeding, feeding, and sheltering. Describehabitat condition and habitat designations such as: critical habitat (provide unit name ornumber, ifapplicable), essential habitat, important habitat, recovery area, recovery unit (provide unit name ornumber, if applicable). Also discuss habitat use patterns, including seasonal use and migration (ifrelevant), and identify habitat needs. Identify and quantifythe listed-species habitat remaining in the action area. GIS layers are useful here, as are land ownership patterns--especially local land trusts and open space designations. Identify anyrecoveryplan implementationthat is occurring in the action area, especiallypriority one action items from recoveryplans. Include survey information. For all monitoring and survey reports, please clearly identify how 

### it was done, when, where, and bywhom. Ifsurveyprotocols were followed, reference the name and date ofthe protocol. Ifsurveyprotocols were modified, provide an explanation ofhow the surveying occurred and thereasoning for modifying the protocol. Keep it relevant. It is unnecessary to discuss biologythat is totally unrelated to project impacts-- 

### e.g., discussion ofpelage color, teat number, and number ofdigits fore and aft whenthe project is a seasonal wetland establislunent. Utilize the best scientific and commercial information available. Use and cite recent publications/journal articles/agency data and technical reports. Include local information, relative to the action area, views ofrecognized experts, results from recent studies, and information on life history, population dynamics, trends and distribution. Reference field notes, unpublished data, research inprogress, etc. Things to consider: Existing threats to species Fragmentation Urban growth area Drainage patterns Information on local sightings and populations Population trends Home range and dispersal Sensitivity ofendangered species to: dust, noise, head, desiccation, etc.
11

### Trap stress/mortality Predators



### 12ENVIRONMENTAL BASELINE AND CUMULATIVE EFFECTS 

### Provide information onpast, present and future state, local, private, or tribal activities 

### inthe action area: specifically, the positive or negative impacts those activities have had on the species or habitat in the area in terms ofabundance, reproduction, distribution, diversity, and habitat quality or function. Include the impacts ofpast and present federal actions as well. Don't forget to describe the impacts ofpast existence and operation ofthe action under consultation (for continuing actions). Cumulative effects include the effects offuture State, Tribal, local or private actions that are reasonably certain to occur in the action area. Future Federal actions that are unrelated (i.e., not interrelated or interdependent) to the proposed action are not considered in this analysis because they will be subject to separate consultationpursuant to section 7 ofthe Act. (Note: Cumulative effects under ESA are 

### notthe same as the definition under NEPA. Be careful not to mix them up.) Describe the impacts ofthese cumulative effects in terms ofabundance, reproduction, distribution, diversity, and habitat quality or function. Present all known and relative effects to population, e.g., 

### fish stocking, fishing, hunting, other recreation, illegal collecting, private wells, development, grazing, local trust programs, etc. Include impacts to the listed and proposed species in the area that you know are occurring and that are unrelated to your action--e.g., road kills from off-road vehicle use, poaching, trespass, etc.

EFFECTS OF THE ACTION 

### The purpose ofthis section is to document your analysis ofthe potential impacts the proposed action will have on species and/or critical habitats. This analysis has two possible conclusions for listed species and designated critical habitat: (1) May Affect, Not Likely to Adversely Affect- 

### the appropriate conclusion when effects on a listed species are expected to be discountable, insignificant, or completely beneficial. Beneficial effects

- 

### contemporaneous positive effects without any adverse effects Insignificant effects 

### -relateto the size ofthe impact and should neverreach the scale where take would occur. Discountable effects 

### -those that are extremely unlikelyto occur. Based on best judgment, a person would not: (1) be able to meaningfullymeasure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur. {2) May Affect, Likely to Adversely Affect 

### -the appropriate finding ifany adverse effect may occurto listed species or critical habitat as a direct or indirectresult ofthe proposed action or its interrelated or interdependent actions, and the effect is not discountable, insignificant, orbeneficial. A finding of"may affect" is the primary trigger for initiating section 7 consultation. Further analysis leads to one ofthe two conclusions above. In

### the case ofa determination that an action is "not likely to adversely affect" a species or critical habitat, you can request USFWS and/or NOAA Fisheries concurrence with this determination and consultation can be concluded upon
13receipt ofour concurrence. Determinations of"likelyto adversely affect" require further consultation between the action agency and USFWS and NOAA Fisheries. These consultations typically lead to thepreparation ofabiological opinion, although they can also lead to incorporation ofadditional protective measures that render the project "not likely to adversely affect" listed species or designated critical habitat. Any actions that are likelyto result inthe incidental take ofa listed species are automatically considered "likelyto adversely affect." Inthe case ofproposed species orproposed critical habitat, thepossible conclusions are: Species Likely to Jeopardize the Continued Existence Not Likely to Jeopardize the Continued Existence Critical Habitat Likely to Destroy or Adversely Modify Not Likely to Destroy or Adversely Modify

The effects analysis includes assessment of: Direct and indirect effects (stressors) ofFederal action Direct and indirect effects (stressors) ofapplicant's action Direct and indirect effects (stressors) ofinterrelated orinterdependent actions Direct and indirect effects (stressors) ofconservation and minimization measures Remember: Direct and indirect effects under ESA are not the same as direct and indirect effects underNEPA. Be careful not to mix them up. UnderESA, direct effects are those that are caused bythe action(s) and occur at the time ofthe action(s), and indirect effects are those that are caused bythe action(s) and are later in time, but are still reasonably certain to occur. Based onthe various components ofyour action that you used to determine the extent ofthe action area, this analysis assesses the potential stressors resulting :from each component and predicts the likelyresponses species and critical habitat will have. Note: don't forget to subsequentlyreconstruct the action to assess the combined stressors ofthe components. You may find that some stressors are synergisticallyminimized or avoided, whereas other stressors may increase. Describe the stressors that are expected to result :from each component. For example, instream actions maymobilize sediments that travel downstream as increased turbidity and then settle out as sediments onthe stream substrate. Sound levels :from machinerymaybe detectable hundreds offeet, thousands offeet, or even miles away. Describe these stressors interms oftheir intensity, :frequency, and duration. Once you have determined the expected stressors resulting from an activity, the next step is to assess the overlap between those stressors and individuals ofthe species or components of critical habitat. The purpose ofdetermining this overlap is to accurately and completely assess the potential exposure ofspecies and habitat to the stressors resulting from the action. This

14

### exposure is the necessaryprecursor to any possible response those species and habitat mayhave. Your conclusions of"not likely to adverse affect" or "likelyto adversely affect" are based in large part on this response. To determine exposure, here is a basic set ofquestions you might answer:
• What are the specific stressors causing the exposure
• Where the exposure to the stressors would occur
• When the exposure to stressors would occur
• How long the exposure to stressors would occur
• What is the frequency ofexposure to stressor
• What is the intensity ofexposure to stressor
• How manyindividuals would be exposed
• Which populations those individuals represent
• What life stage would be exposed

For critical habitat, the questions would be similarbut would focus on constituent elements of critical habitat. Remember that exposure to a stressor is not always direct. For example, in some cases individuals ofa species maybe directly exposed to the sediment mobilized during construction. However, in other cases, individuals ofthe species would be exposed indirectlywhen sediment mobilized during construction settles out in downstream areas, rendering those areas unusable for later spawning or foraging. Here are some examples ofstressors you should address: Exposure to abiotic factors affecting land, air, orwater Exposure to biotic factors affecting species behavior Spatial or temporal changes inprimary constituent elements ofcritical habitat Loss or gain ofhabitat--direct and indirect Fragmentation ofhabitat Loss or gain offorage and/or foraging potential Loss or gain ofshelter/cover Loss orgain ofaccess through adjacent habitat/loss ofcorridors

15Once you have determined that a species or critical habitat will be exposed to an action, the next step is to determine thepotential response orrange ofresponses the exposed individuals or components ofcritical habitat will have to those levels and types ofexposure. This is where the use ofthebest scientific and commercial information available becomes crucial. Your analysis must take this information into consideration and the resulting document mustreflect the use ofthis information and your reasoning and inferencebased onthat information. Bearin mind that this analysis maynot bethe final word onthe expected responses as further consultation withUSFWS orNOAA Fisheries mayrefine this analysis. Be sure to describe the expected responses clearly and focus your analysis towards determining if any ofthepossible responses will result in the death or injury ofindividuals, reduced reproductive success or capacity, orthe temporary orpermanentblockage or destruction of biologically significant habitats 

### (e.g., foraging, spawning, or lekking grounds; migratory corridors, etc.,). Anyofthese above responses are likely to qualify as adverse effects. Ifthe available information indicates that no observableresponse is expected from the levels and types ofexposure, the action maybeunlikelyto adversely affect a species or critical habitat. However, remember that no observable response may actuallymask an invisible internal response such as increased stress hormone levels, elevatedheart rate, etc. Depending onthe fitness ofthe exposed individual and the surrounding environment (including other threats), these "invisible" responses may lead to more serious consequences. We recommend working with yourNOAA Fisheries or USFWS contact to determine the appropriate conclusion. Don't forget to consider: Individual responses based onthe species biology and sensitivityto exposure The combined effects ofexisting threats andnew exposure The combined effects oflimiting factors and new exposure Disrupted reproduction and/or loss ofreproduction Exposure and response ofspecies and critical habitat to interrelated and interdependent actions Understanding and avoiding the common flaws in developing an effect determination will save you considerable time. These common flaws are: the "Displacement" Approach 

### (i.e., the species will move out ofthe way; there are plenty ofplaces for them to go); the "Not Known to Occur Here" Approach 

### (i.e., looking at surveyresults, or lack ofresults, instead ofthe RecoveryPlan for the species); the "We'll Tell You Later" Approach 

### (i.e., ifwe find any, then we'll let you know and that is when we will consult); orthe "Leap ofFaith" Approach 

### (i.e., the agency wants the USFWS orNOAA Fisheries to accept a determination based ontrust, rather than the best scientific and commercially available information.). Sticking to flawed determinations will cost everyone time, money, and aggravation. Analysis ofalternate actions

16

### This analysis is required for actions that involve preparation ofan EIS. For all other actions, a summary ofalternatives discussed in other environmental documents is useful.

17OTHER RELEVANT INFORMATION Provide any otherrelevant available information the action, the affected listed species, or critical habitat. This could include local research, studies on the species that havepreliminaryresults, and scientific and commercial information on aspects ofthe project.

CONCLUSION This is where you put your overall effect determination after you have analyzed the exposure and response ofspecies and habitat to the stressors resulting from the proposed action and interrelated or interdependent actions. Effect determinations mustbebased on a sound reasoning from exposure to response and mustbe consistent with types ofactions in the project description, the biologyin the species accounts, the habitat status and condition, changes to the existing environment, and the best scientific and commercial information available. Again, the two potential conclusions for listed species are: Not likely to adversely affect species Likelyto adversely affect species The two potential conclusions for designated critical habitat are: Not likely to adversely affect critical habitat Likely to adversely affect critical habitat The two potential conclusions for proposed species are: Not likely tojeopardize species Likely to adverselyjeopardize species The two potential conclusions for proposed critical habitat are: Not likely to destroy or adversely modify critical habitat Likelyto destroy or adversely modify critical habitat

Include the basis for the conclusion, such as discussion ofany specific measures or features of the project that support the conclusion and discussion ofspecies expectedresponse, status, biology, orbaseline conditions that also support conclusion. Ifyou make a "No effect" determination, it doesn't need to be in the assessment, but you might have to defend it. Keep the documentation for your administrative record.

LIST OF DOCUMENTS



### 18Provide a list ofthe documents that havebearing onthe project or the consultation, this includes relevant reports, including any envirorunental impact statements, envirorunental assessment, or biological assessment prepared for the project. Include all planning documents as well as the documents prepared in conformance with state envirorunentallaws IMPORTATANT NOTE: Each ofthese documents mustbeprovided with the initiation package consultation for the Services to be able to proceed with formal consultation. LITERATURE CITED We are all charged with using the best scientific and commercial information available. To demonstrate you did this, it is a good idea to keep copies ofsearch requests in your record. Ifyou used a personal communication as a reference, include the contact information (name, address, phone number, affiliation) in your record.

LIST OF CONTACTS/CONTRIBUTORS/PREP ARERS Please include contact information for contributors and preparers as well as local experts contacted for species orhabitat information.

19GLOSSARY

Action Area

- all areas to be affected directly or indirectlybythe Federal action and not merely the immediate area involved in the action. Cumulative Effects- are those effects offuture State orprivate activities, not involving Federal activities, that are reasonably certain to occur inthe action area ofthe Federal action subject to consultation. Effects ofthe Action

- refers to the direct and 

### indirect effects ofan action on the species or critical habitat, together with the effects ofother activities that are 

### interrelated or 

### interdependent with that action, that will be added to the environmental baseline. Indirect Effects- Indirect effects are those that are caused bythe action(s) and are later in time, but are still reasonably certain to occur Interrelated Actions

- Interrelated actions are those that are part ofa larger action and depend on the larger action for theirjustification-i.e. this action would not occur "but for" a larger action. Interdependent Actions

- Interdependent actions are those that have no significant independent utility apart from the action that is under consideration-i.e. other actions would not occur "but for" this action. Environmental Baseline- includes the past and present impacts ofall Federal, State, or private actions and otherhuman activities inthe 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 ofState orprivate actions that are contemporaneous with the consultation in process. Likely to jeopardize the continued existence of- to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood ofboth the survival and recovery ofa listed species in the wildbyreducing the reproduction, numbers, or distribution ofthat species. May Affect, Not Likely to Adversely Affect- the appropriate conclusion when effects on a listed species are expected to be 

### discountable, insignificant, or completely 

### beneficial. Beneficial effects

- contemporaneous positive effects without any adverse effects Insignificant effects- relate to the size ofthe impact and should neverreach the scale where take would occur. Discountable effects -those that are extremelyunlikelyto occur. Based onbest judgment, a person would not: (1) be able to meaningfullymeasure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur.



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### May Affect, Likely to Adversely Affect

- the appropriate finding ifany adverse effect may occur to listed species or critical habitat as a direct or indirect result ofthe proposed action or its interrelated or interdependent actions, and the effect is not discountable, insignificant, orbeneficial.

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