Mr. Douglas Pabst 

Division of Environmental Planning 

and Protection 

UNITED STATES DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric Administration 

NATIONAL MARINE FISHERIES SERVICE 

Southeast Regional Office 

263 13th A venue 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 of five ocean dredged material disposal sites (ODMDS) off of Puerto Rico's five 

major harbors: Yabucoa, Mayaguez, Ponce, Arecibo, and San Juan. Currently, each of the 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. If you have any questions, 

please contact Mr. Eric Hawk, fishery biologist, at (727) 824-5312, or by e-mail at 

Eric.Hawk@noaa.gov. For your future use, we are attaching recently revised guidelines for 

section 7 consultation and preparation of biological assessments, for distribution to your 

biologists. Thank you. 

File: 1514-22.k.2.PR 

I/SER/2005/020 10 

David Bernhart 

Assistant Regional Administrator 

for Protected Resources 

I 
National 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 or review this document may not be familiar with the project area or what is 

proposed by the project. Therefore your BA or BE should present a clear line of reasoning that 

explains the proposed project and how you determined the effects of the project on each 

threatened or endangered species in the project area. Try to avoid technical jargon not readily 

understandable to people outside your agency or area of expertise. Remember, this is a public 

document. Some things to consider and, if appropriate, to include in your BA or BE, follow. 

1. What is 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 of the human environment as referred to in the 

National Environmental Policy Act of 1969 (NEPA) ©(4.2 U.S.C. 4332(2)(C)!!. ABA is required if 

listed species or critical habitat may be present in 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 of analyses. Although agencies are not 

required to prepare a Biological Assessment for non-construction activities, if a listed species or 

critical habitat is likely to be affected, the agency must provide the Service with an evaluation on 

the likely effects of the action. Often this information is referred to as a BE. The Service uses 

this documentation along with any other available information to decide if concurrence with the 

agency's determination is warranted. Recommended contents are the same as for a BA, as 

referenced above. 

The BAs and BEs should not be 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 of multiple possible alternative actions on a variety of 

environmental, cultural, and social resources, and often use different definitions or standards. 

2. What are you proposing to do? 

• Describe the project. A project description will vary, depending on tl1e complexity of the 

project. For example, describing the placement and construction of a new microwave 

tower may be relatively simple, but describing an alternative for improving range 

management likely would be more detailed and complex. Include sketches if they will help 

others understand your proposed action and its relationship with the species' habitat 

• How are you (or the project proponent) planning on carrying out the project? What tools 

or methods may be used? How will the site be accessed? 

1 
• Describe the project area. Always include a map (topographic maps are particularly 

helpful). Provide photographs including aerials, if available. Describe the project area (i.e., 

topography, vegetation, condition/trend). 

• Describe current management or activities relevant to the project area. How will your 

project change the area? 

• Supporting documents are very helpful. If you have a mining plan, research proposal, 

NEP A or other planning document or any other documents regarding the project, attach 

them to the BA or BE. 

3. What threatened or endangered species may occur in the project area? 

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. If you 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 of information include, but 

are not limited to, the Forest Service or Bureau of Land Management, this office for 

marine species, members of the public or academic community, and books and various 

informational booklets. Due to budget constraints and staff shortages, we are only able to 

provide general, state-wide, or country-wide (territory-wide) species lists. 

Use your familiarity with the project area when you develop your species lists. Sometimes a 

species may occur in the larger regional area near your project, but the habitat necessary to 

support the species is not in the project area (including areas that may be beyond the 

immediate project boundaries, but within the area of influence of the project). If, for 

example, you know that the specific habitat type used by a species does not occur in the 

project area, it does not need to appear on the species list for the project. However, 

documentation of your reasoning is helpful for Service biologists or anyone else that may 

review the document. 

4. Have you surveyed for species that are known to occur or have potential habitat in the 

proposed project area? 

The "not lmown 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 statement is difficult to interpret. It begs 

the questions "Have you looked?" and "How have you looked?" Always reference your 

information sources. 

Include a clear description of your 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 of it? Include maps 

of areas surveyed if appropriate. 

2 
• Who did the surveys and when? Was the survey done during the time of year/day when 

the plant is growing or when the animal can be found (its active period)? Did the survey 

follow accepted protocols? 

• If you 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. 

• Remember that your evaluation of potential impacts fi-om a project does not end if the 

species is/are not found in the project area. You must sti11 evaluate what effects would be 

expected to the habitat, even 1fit is not known to be occupied. 

5. Provide background information on the threatened or endangered species in the project 

area. 

Describe the species in terms of overall range and population status. How many populations are 

known? How many occur in the project area? What part of the population will be 

affected by this project? Will the population's viability be affected? What is the current 

habitat condition and population size and status? Describe related items of past 

management for the species, such as stocking programs, habitat improvements, or loss of 

habitat or individuals caused by previous projects. 

6. How will the project affect the threatened or endangered species or critical habitat that 

occurs in the project area? 

• If you believe the project will not affect the species, explain why. 

• If you think the project may affect the species, explain what the effects might be. The 

Endangered Species Act requires you consider all effects when determining if an action 

funded, permitted, or carried out by 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, not just the proposed action. Direct effects 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 but 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 significant 

independent utility apart from the action under consideration. 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 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 if the 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 of the species. Even if no cn'acal habitat has been designated 

for a species, the evaluation of the project effects must include effects to the habitat~ notjust 

the species. 

7. What is your decision? The Federal action agency must make a determination of effect. 

Quite frequently, effect determinations are not necessarily wrong; they simply are not justified in 

the assessment. The assessment should lead the reviewer through a discussion of effects 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. If there is little or no connection or rationale provided 

to lead the reader from the project description to the effect determination, we cannot 

assume conditions that are not presented in the assessment. Decisions must be justified 

biologically. The responsibility for mal<.i.ng the determination of effect falls on the Federal 

action agency; however, the Service may ask the agency to revisit its decision or provide 

more data if the conclusion is not adequately supported by biological information. 

You have three choices for each listed species or area of critical habitat: 

1. "No effect" means there are absolutely no effects of the project, positive or negative. "No 

effect" does not include a small effect or an effect that is unlikely to occur. If effects are 

insignificant (in size) or discountable (extremely unlikely), a "may affect, but not likely to 

adversely affect" determination is appropriate. 

2. "May affect- is not likely to adversely affect" means that all effects are beneficial, insignificant, 

or discountable. Beneficial eflects have concurrent positive effects without any adverse 

effects to the species or habitat (i.e., there can not be "balancing," wherein the benefits of 

the project would be expected to outweigh the adverse effects- see #3 below). Insignificant 

effects relate to the size of the impact (and should not reach the scale where take occurs). 

Discountable effects are those extremely unlikely to occur. These determinations require 

written concurrence from the Service. Based on best judgement, 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 not be avoided. A 

combination ofbeneficial and adverse effects is still "likely to adversely affect," even if the 

net effect is neutral or positive. Adverse effects do not qualifY as discountable simply 

because we are not certain they will occur. The probability of occurrence must be 

extremely small to achieve discountability. Likewise, adverse effects do not meet the 

definition of insignificant because they are less than major. If the adverse effect can be 

detected in any way or if it can be meaningfully articulated in a discussion of the results, 

then it is not insignificant, it is likely to adversely affect. This requires formal consultation 

with the Service. 

A fourth finding is possible for proposed species or proposed critical habitat: 

4 

• • 
4. "Is likely to jeopardize/adversely modify proposed species/critical habitat" is the appropriate 

conclusion when the action agency identifies situations in which the proposed action is 

likely to jeopardize the proposed species, or destroy or adversely modify the proposed 

critical habitat. If this conclusion is reached, conference is required. 

List the species experts you contacted when preparing the BE or BA but avoid statements that place the 

responsibility for the decision of "may affect" or "no effect" on the shoulders of the species 

experts. Remember, this decision is made by the Federal action agency. 

Provide supporting documentation, especially any agency reports or data that may not be available to the 

Service. Include a list of literature 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 

Southeast Regional Office 

Protected Resources Division 

263 13tl' Avenue South 

St. Petersburg, FL 33701 

(727) 824-5312 

May 2005 

5 
OUTLINE EXAMPLE 

FORA 

BIOLOGICAL ASSESSMENT OR BIOLOGICAL EVALUATION 

A. Cover Letter -VERY IMPORTANT- Include purpose of consultation, project title, and 

consultation number (if available). A determination needs to be made for each species. 

You have three options: 1) a "no effect" determination; 2) requesting concurrence with an 

"is not likely to adversely affect" determination; 3) a "may affect, is likely to adversely aiTect" 

determination, and a request for formal consultation. If proposed species or critical habitat 

are included, state whether the project is likely to result in jeopardy to proposed species, or 

the destruction or adverse modification of proposed critical habitat. 

2. Project Description- Describe the proposed action and the project area. Be specific and 

quantify whenever possible. 

3. For Each Species 

1. Description of affected environment (quantify whenever possible) 

2. Description of species biology 

3. Describe current conditions for each species 

a. Rangewide 

b. In project area 

c. Cumulative effects of State and private actions in project area 

d. Other consultations of Federal action agency in area to date 

4. Describe critical habitat (if applicable) 

5. Describe effects of proposed 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 of Contacts 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 of information that 

should be provided 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 may require more or less information in order to initiate 

consultation. Also, note that this contains guidance on the information required to initiate formal 

consultation procedures with USFWS and/or NOAA Fisheries. Additional information needs 

may be identified during consultation. Texts in italics below are examples. Normal text is 

guidance. A glossary of terms is appended. 

INTRODUCTION 

Here is an example of introductory language: 

The purpose of this initiation package is to review the proposed [project name] in sufficient 

detail to determine to what extent the proposed action may affect any of the threatened, 

endangered, proposed, or sensitive species and designated or proposed critical habitats listed 

below. In addition, the following information is provided to comply with statutory requirements 

to use the best scientific and commercial information available when assessing the risks posed to 

listed and/or proposed species and designated and/or proposed critical habitat by proposed 

federal actions. This initiation package is prepared in accordance with legal requirements set 

forth under regulations implementing Section 7 ofthe Endangered Species Act (50 CFR 402; 16 

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

Threatened, Endangered, Proposed Threatened or Proposed Endangered Species 

Example language: 

The following listed and proposed species may be affected by the proposed action: 

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. If it doesn't, include a brief explanation here and a more detailed explanation 

in your record to help USFWS, NOAA Fisheries and future staff understand your thought process 

for excluding a species from consideration. 

Candidate Species, Sensitive Species and Species of Concern 

Example language: 

The following candidate species, sensitive species, and species of concern may be affected by the 

proposed action: 

common name (Scientific name) [include state designation, if appropriate} 

Any State-listed species should be included here, if they 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 addressed within this document falls within Critical Habitat for {identify species J. 

CONSULTATION TO DATE 

"Consultation" under the ESA consists of discussions between the action agency, the applicant 

(if any), and USFWS and NOAA Fisheries. It is the sharing of information about the proposed 

action and related actions, the species and environments affected, and means of achieving project 

purposes while conserving the species and their habitats. Under the ESA, there can be both 

formal and informal consultation. Both processes are the same, but formal consultation has 

statutory timeframes and other requirements (such as the submission of the information in this 

package). 

Summarize any consultation that has occurred thus far. Identify when consultation was requested 

(if not concurrent with this document). Be sure to summarize meetings, site visits and 

correspondence that were important to the decision-making process. 

DESCRIPTION OF THE PROPOSED ACTION 

The purpose of this section is to provide a clear and concise description ofthe proposed activity 

and any interrelated or interdependent actions. 

The following information is necessary for the consultation process on an action: 

1. The action agency proposing the action. 

8 
2. The authority(ies) the action agency will use to undertake, approve, or fund the action. 

3. The applicant, if any. 

4. The action to be authorized, funded, or carried out. 

5. The location ofthe action. 

5. When the 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 or interdependent actions, or that none exist to the best of your knowledge. 

Describe and specify: WHO is going to do the action and under what authority, include the name 

and office of the action agency and the name and address of the applicant; WHAT the project or 

action is; WHERE the project is (refer to attached maps); WHEN the action is going to 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 of actions are what is being 

consulted on for the 7(a)(2) analysis. 

Include a clear description of all 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 

conservation banks. 

Here are some examples of commonly overlooked items to include in your project description: 

Type of project 

Project location 

Project footprint 

A voidance 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. temporary impacts 

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 of a larger project or plan 

What permits will need to be obtained 

Action Area 

Describe all areas to be affected directly or indirectly by the Federal action and not merely the 

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 of the Federal action. The same applies to the applicant's action. The 

action area is defined by measurable or detectable changes in land, air and water, or to 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 of cofferdams, 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 on the stream substrate. Sound levels :from machinery may be detectable hundreds 

of feet, thousands of feet, or even miles away. Use these distances when delineating the extent of 

your action area. Note: don't forget to subsequently reconstruct the action to assess the 

combined stressors of the components. You may find 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 vicinity map. The vicinity map for terrestrial projects should be 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 of listing 

are likely to be present in the action area. Identify any additional threats that are likely to be 

present in the action area. 

10 
If the species has a distribution that is constrained by limiting factors, identify where in the action 

area factors are present that could support the species and where they are absent or limiting. For 

example, if a species is limited to a narrow thermal range and a narrow humidity range, 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 of the species' biology that relate to the impact of the action, such as sensitivity 

to or tolerance of: noise, light, heat, cold, inundation, smoke, sediments, dust, etc. For example, 

if the species is sensitive to loud sounds or vibration, and your project involves loud tools or 

equipment, reference that aspect of their biology. Include citations for all sources of information 

Describe habitat use in terms ofbreeding, feeding, and sheltering. Describe habitat condition and 

habitat designations such as: critical habitat (provide unit name or number, if applicable), 

essential habitat, important habitat, recovery area, recovery unit (provide unit name or number, if 

applicable). Also discuss habitat use patterns, including seasonal use and migration (if relevant), 

and identify habitat needs. 

Identify and quantify the 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 any recovery plan implementation that is occurring in the action area, especially priority 

one action items from recovery plans. 

Include survey information. For all monitoring and survey reports, please clearly identify how it 

was done, when, where, and by whom. If survey protocols were followed, reference the name 

and date of the protocol. If survey protocols were modified, provide an explanation of how the 

surveying occurred and the reasoning for modifying the protocol. 

Keep it relevant. It is unnecessary to discuss biology that is totally unrelated to project impacts--

e.g., discussion of pelage color, teat number, and number of digits fore and aft when the 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 of recognized experts, results from recent studies, and 

information on life history, population dynamics, trends and distribution. Reference field notes, 

unpublished data, research in progress, 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 of endangered species to: dust, noise, head, desiccation, etc. 

11 
Trap stress/mortality 

Predators 

12 
ENVIRONMENTAL BASELINE AND CUMULATIVE EFFECTS 

Provide information on past, present and future state, local, private, or tribal activities in the 

action area: specifically, the positive or negative impacts those activities have had on the species 

or habitat in the area in terms of abundance, reproduction, distribution, diversity, and habitat 

quality or function. Include the impacts of past and present federal actions as well. Don't forget 

to describe the impacts of past existence and operation of the action under consultation (for 

continuing actions). 

Cumulative effects include the effects of future 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 consultation pursuant to section 7 of the Act. (Note: Cumulative 

effects under ESA are not the same as the definition under NEP A. Be careful not to mix them 

up.) Describe the impacts of these cumulative effects in terms of abundance, 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 of this section is to document your analysis of the 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 -relate to the size of the impact and should never reach the scale 

where take would occur. 

Discountable effects -those that are extremely unlikely to occur. Based on best 

judgment, a person would not: (1) be able to meaningfully measure, detect, or evaluate 

insignificant effects; or (2) expect discountable effects to occur. 

{2) May Affect, Likely to Adversely Affect -the appropriate finding if any adverse effect may 

occur to listed species or critical habitat as a direct or indirect result of the proposed 

action or its interrelated or interdependent actions, and the effect is not discountable, 

insignificant, or beneficial. 

A finding of "may affect" is the primary trigger for initiating section 7 consultation. Further 

analysis leads to one of the two conclusions above. In the case of a 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 

13 
receipt of our concurrence. Determinations of "likely to adversely affect" require further 

consultation between the action agency and USFWS and NOAA Fisheries. These consultations 

typically lead to the preparation of a biological opinion, although they can also lead to 

incorporation of additional protective measures that render the project "not likely to adversely 

affect" listed species or designated critical habitat. Any actions that are likely to result in the 

incidental take of a listed species are automatically considered "likely to adversely affect." 

In the case of proposed species or proposed critical habitat, the possible 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) of applicant's action 

Direct and indirect effects (stressors) of interrelated or interdependent actions 

Direct and indirect effects ( stressors) of conservation and minimization measures 

Remember: Direct and indirect effects under ESA are not the same as direct and indirect effects 

under NEP A. Be careful not to mix them up. Under ESA, direct effects are those that are caused 

by the action(s) and occur at the time of the action(s), and indirect effects are those that are 

caused by the action(s) and are later in time, but are still reasonably certain to occur. 

Based on the various components ofyour action that you used to determine the extent of the 

action area, this analysis assesses the potential stressors resulting :from each component and 

predicts the likely responses species and critical habitat will have. Note: don't forget to 

subsequently reconstruct the action to assess the combined stressors of the components. You 

may find that some stressors are synergistically minimized or avoided, whereas other stressors 

may increase. 

Describe 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 on the stream substrate. Sound levels :from machinery may be detectable hundreds 

of feet, thousands of feet, or even miles away. Describe these stressors in terms 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 of the species or components of 

critical habitat. The purpose of determining this overlap is to accurately and completely assess 

the potential exposure of species and habitat to the stressors resulting from the action. This 

14 
exposure is the necessary precursor to any possible response those species and habitat may have. 

Your conclusions of "not likely to adverse affect" or "likely to adversely affect" are based in 

large part on this response. 

To determine exposure, here is a basic set of questions 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 of exposure to stressor 

• What is the intensity of exposure to stressor 

• How many individuals would be exposed 

• Which populations those individuals represent 

• What life stage would be exposed 

For critical habitat, the questions would be similar but would focus on constituent elements of 

critical habitat. 

Remember that exposure to a stressor is not always direct. For example, in some cases 

individuals of a species may be directly exposed to the sediment mobilized during construction. 

However, in other cases, individuals of the species would be exposed indirectly when sediment 

mobilized during construction settles out in downstream areas, rendering those areas unusable for 

later spawning or foraging. 

Here are some examples of stressors you should address: 

Exposure to abiotic factors affecting land, air, or water 

Exposure to biotic factors affecting species behavior 

Spatial or temporal changes in primary constituent elements of critical habitat 

Loss or gain ofhabitat--direct and indirect 

Fragmentation ofhabitat 

Loss or gain of forage and/or foraging potential 

Loss or gain of shelter/cover 

Loss or gain of access through adjacent habitat/loss of corridors 

15 
Once you have determined that a species or critical habitat will be exposed to an action, the next 

step is to determine the potential response or range of responses the exposed individuals or 

components of critical habitat will have to those levels and types of exposure. 

This is where the use of the best scientific and commercial information available becomes 

crucial. Your analysis must take this information into consideration and the resulting document 

must reflect the use of this information and your reasoning and inference based on that 

information. Bear in mind that this analysis may not be the final word on the expected responses 

as further consultation with USFWS or NOAA Fisheries may refine this analysis. 

Be sure to describe the expected responses clearly and focus your analysis towards determining if 

any ofthe possible responses will result in the death or injury of individuals, reduced 

reproductive success or capacity, or the temporary or permanent blockage or destruction of 

biologically significant habitats (e.g., foraging, spawning, or lekking grounds; migratory 

corridors, etc.,). Any of these above responses are likely to qualify as adverse effects. If the 

available information indicates that no observable response is expected from the levels and types 

of exposure, the action may be unlikely to adversely affect a species or critical habitat. However, 

remember that no observable response may actually mask an invisible internal response such as 

increased stress hormone levels, elevated heart rate, etc. Depending on the fitness of the exposed 

individual and the surrounding environment (including other threats), these "invisible" responses 

may lead to more serious consequences. We recommend working with your NOAA Fisheries or 

USFWS contact to determine the appropriate conclusion. 

Don't forget to consider: 

Individual responses based on the species biology and sensitivity to exposure 

The combined effects of existing threats and new exposure 

The combined effects of limiting factors and new exposure 

Disrupted reproduction and/or loss of reproduction 

Exposure and response of species 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 of the way; there are plenty of places for them to go); the "Not Known to Occur 

Here" Approach (i.e., looking at survey results, or lack of results, instead of the Recovery Plan 

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); or the "Leap of Faith" Approach (i.e., the agency wants 

the USFWS or NOAA Fisheries to accept a determination based on trust, rather than the best 

scientific and commercially available information.). Sticking to flawed determinations will cost 

everyone time, money, and aggravation. 

Analysis of alternate actions 

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This analysis is required for actions that involve preparation of an EIS. For all other actions, a 

summary of alternatives discussed in other environmental documents is useful. 

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OTHER RELEVANT INFORMATION 

Provide any other relevant available information the action, the affected listed species, or critical 

habitat. This could include local research, studies on the species that have preliminary results, 

and scientific and commercial information on aspects of the project. 

CONCLUSION 

This is where you put your overall effect determination after you have analyzed the exposure and 

response of species and habitat to the stressors resulting from the proposed action and 

interrelated or interdependent actions. Effect determinations must be based on a sound 

reasoning from exposure to response and must be consistent with types of actions in the project 

description, the biology in 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 

Likely to 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 to jeopardize species 

Likely to adversely jeopardize species 

The two potential conclusions for proposed critical habitat are: 

Not likely to destroy or adversely modify critical habitat 

Likely to destroy or adversely modify critical habitat 

Include the basis for the conclusion, such as discussion of any specific measures or features of 

the project that support the conclusion and discussion of species expected response, status, 

biology, or baseline conditions that also support conclusion. 

If you 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 

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Provide a list of the documents that have bearing on the 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 of these documents must be provided 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 of search requests in your record. If you 

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 or habitat information. 

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GLOSSARY 

Action Area - all areas to be affected directly or indirectly by the Federal action and not merely 

the immediate area involved in the action. 

Cumulative Effects- are those effects of future State or private activities, not involving Federal 

activities, that are reasonably certain to occur in the action area ofthe Federal action 

subject to consultation. 

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. 

Indirect Effects- Indirect effects are those that are caused by the action(s) and are later 

in time, but are still reasonably certain to occur 

Interrelated Actions - Interrelated actions are those that are part of a larger action and 

depend on the larger action for their justification-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 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 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 of both the 

survival and recovery of a listed species in the wild by reducing the reproduction, 

numbers, or distribution of that 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 of the impact and should never reach the scale 

where take would occur. 

Discountable effects -those that are extremely unlikely to occur. Based on best 

judgment, a person would not: (1) be able to meaningfully measure, 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 if any adverse effect may 

occur to listed species or critical habitat as a direct or indirect result of the proposed 

action or its interrelated or interdependent actions, and the effect is not discountable, 

insignificant, or beneficial. 

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