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Inter-agency Memorandum of Agreement Regarding Oil Spill Planning and Response Activities Under the 

Federal Water Pollution Control Act’s

National Oil and Hazardous Substances Pollution Contingency Plan and the Endangered Species Act

INTRODUCTION 

7 A. Parties. The Parties to this agreement are the U.S. Coast Guard (USCG), the U.S. 

8 Environmental Protection Agency (USEPA), the Department of the Interior (DOI) 

9 Office of Environmental Policy and Compliance, the U.S. Fish and Wildlife 

10 Service (USFWS), and the National Oceanic and Atmospheric Administration’s 

11 (NOAA’s) - National Marine Fisheries Service (NMFS) and National Ocean 

12 Service (NOS). 

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14 B. The Parties have conducted a review of the National Oil and Hazardous Substances Pollution 

15 Contingency Plan (NCP) and associated oil spill response activities to coordinate their 

16 actions under Section 1321(d) of the Clean Water Act and Section 7(a)(1) of the Endangered 

17 Species Act, as amended (16 U.S.C. 1531 et seq.) (ESA). Section 1321(d) of the Clean 

18 Water Act establishes the NCP and assigns responsibilities to Federal agencies in mitigating 

19 damage from oil and hazardous materials spills, including the conservation of fish and 

20 wildlife. Section 7(a)(1) of the ESA requires all Federal agencies, in consultation with and 

21 with the assistance of the Secretaries of the Interior or Commerce, as appropriate, to review 

22 their programs and utilize their authorities in furtherance of the purposes of the ESA by 

23 carrying out programs for the conservation of listed species. As a result of this review, 

24 recommended procedures have been developed that will achieve better conservation of listed 

25 species and critical habitat during implementation of oil spill response activities. 

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27 C. This agreement provides a general framework for cooperation and participation among the 

28 Parties in the exercise of their oil spill planning and response responsibilities. Following the 

29 recommended procedures presented in this agreement will better provide for the conservation 

Appendix A A-91 
1 of listed species, improve the oil spill planning and response procedures delineated in the 

2 NCP, and ultimately streamline the process required by Section 7(a)(2) of the ESA. 

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4 PURPOSE 

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6 A. This agreement is intended to be used at the area committee level primarily to identify and 

7 incorporate plans and procedures to protect listed species and designated critical 

8 habitat during spill planning and response activities. Proactive regional planning 

9 may also take into consideration concerns for proposed and candidate species, as 

10 well as listed species’ habitat not yet designated as critical.

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12 B. This agreement coordinates the consultation requirements specified in the ESA regulations, 

13 50 CFR 402, with the pollution response responsibilities outlined in the NCP, 40 CFR 300. 

14 It addresses three areas of oil spill response activities: pre-spill planning activities, spill 

15 response event activities, and post-spill activities. The agreement identifies the roles and 

16 responsibilities of each agency under each activity. By working proactively before a spill to 

17 identify potential effects of oil spill response activities on listed species and critical habitat, 

18 and jointly developing response plans and countermeasures (response strategies) to minimize 

19 or avoid adverse effects, impacts to listed species and critical habitat should be reduced or 

20 avoided completely. Should a spill occur, response plans and countermeasures will be used 

21 to implement response actions to minimize damage from oil discharges in a manner that 

22 reduces or eliminates impacts to listed species and critical habitat. In the event that oil spill 

23 response actions may result in effects on listed species or critical habitat, the agreement 

24 provides guidance on how to conduct emergency consultation under the ESA. It also 

25 describes the steps for completing formal consultation, if necessary, after the case is closed, 

26 if listed species or critical habitat have been adversely affected. 

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28 C. The goal of this agreement is to engage in informal consultation wherever possible during 

29 planning and response. With adequate planning and ongoing, active involvement by all 

30 participants, impacts to listed species and critical habitat and the resulting need to conduct 

31 subsequent ESA Section 7(a)(2) consultations will be minimized or obviated. 

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33 LEGAL AUTHORITIES 

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35 A. The Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1321., requires that when a 

36 spill occurs, the President take such action as necessary to ensure effective and immediate 

37 removal of a discharge, and mitigation or prevention of a substantial risk of a discharge of oil 

38 into the waters of the United States. The National Contingency Plan (NCP), 40 CFR Part 

1

 Adverse effects on non-designated critical habitat used by listed species has a potential for having an adverse affect 

on these listed species. Therefore, planners should consider these areas if information is available. 

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300, prepared in accordance with the FWPCA, assigns duties to Federal agencies to protect 

the public health and welfare, including fish, wildlife, natural resources and the public. The 

NCP designates the Federal On Scene Coordinator (FOSC) as the person responsible for 

coordinating an oil spill response. (The abbreviation OSC is used in the NCP, while the 

abbreviation for Federal On Scene Coordinator is FOSC in this agreement.) Nothing in this 

agreement limits the authority of the Federal On Scene Coordinator as defined in the NCP. 

B. The Endangered Species Act of 1973 (ESA), as amended, 16 U.S.C. §1531 et seq., provides 

a means to protect threatened and endangered species and the ecosystems upon which they 

depend. The ESA requires that Federal agencies insure that the actions they authorize, fund, 

or carry out do not jeopardize listed species or adversely modify their designated critical 

habitat. Regulations for conducting Section 7 consultation are set forth in 50 CFR Part 402. 

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DEFINITIONS 

The following definitions apply to this agreement and are taken from the definitions contained in 

either the NCP or the March 1998 USFWS & NMFS Endangered Species Consultation 

Handbook. For definitions of terms not listed below, refer to the USFWS & NMFS Endangered 

Species Consultation Handbook and the NCP as appropriate. 

Area Committee - the entity appointed by the President consisting of members from qualified 

personnel of Federal, state, and local agencies with responsibilities that include preparing an area 

contingency plan for an area designated by the President. The chairs of the Area Committee are 

the USCG for coastal and Great Lakes plans, and the USEPA for inland plans. In some instances 

the Regional Response Team (RRT) may act as the Area Committee. In this MOA, the term 

Area Committee also includes the RRT acting as the Area Committee. 

Area Contingency Plan (ACP) - the plan prepared by an Area Committee (or the RRT acting as 

the Area Committee) that is developed to be implemented in conjunction with the NCP and 

Regional Contingency Plan (RCP), in part to address removal of a worst case discharge and to 

mitigate or prevent a substantial threat of such a discharge from a vessel, offshore facility, or 

onshore facility operating in or near an area designated by the President. A detailed annex 

containing a Fish and Wildlife and Sensitive Environments Plan prepared in consultation with 

the USFWS, NOAA, and other interested natural resource management agencies should be 

incorporated into each ACP. In this MOA, the term ACP also includes sub-area ACP’s, sub-area 

contingency plans, geographic response plans and geographic response strategies as per 40 CFR 

300.210. 

Biological Assessment - information prepared by or under the direction of the Federal action 

agency (USCG or USEPA) regarding: 1) listed and proposed species and designated critical 

habitat that may be affected by proposed actions; and, (2) the evaluation of potential effects of 

the proposed actions on such species and habitat. 

Biological Opinion - document which includes: (1) the opinion of the USFWS or NMFS as to 

whether or not a Federal action is likely to jeopardize the continued existence of listed species, or 

result in the destruction or adverse modification of designated critical habitat; (2) a summary of 

the information on which the opinion is based; and (3) a detailed discussion of the effects of the 

action on listed species or designated critical habitat. This document will also contain an 

incidental take statement, that, if appropriate, exempts the Federal actions from the ESA Section 

9 take prohibitions. 

Candidate species – plant and animal taxa considered for possible addition to the List of 

Threatened and Endangered Species. 

Case is Closed – When removal operations are complete in accordance with 40 CFR 300.320(b). 

Critical habitat - areas designated by the USFWS and NMFS pursuant to Section 4 of the ESA 

for the purposes of identifying areas essential for the conservation of a threatened or endangered 

species and which may require special management considerations. 

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Emergency Consultation – an expedited consultation process that takes place during an 

emergency (natural disaster or other calamity) (50 CFR 402.05). The Services have determined 

that oil spill response activities qualify as an emergency action. The consultation may be initiated 

informally. The emergency continues to exist until the removal operations are completed and the 

case is closed in accordance with 40 CFR 300.320(b). The FOSC will continue to conduct 

emergency consultations, if needed, until the emergency is over and the case is closed. Formal, 

or informal, consultation is initiated after the emergency is over, at which time the USFWS 

and/or NMFS evaluates the nature of the emergency actions, the justification for the expedited 

consultation, and any impacts to listed species and their habitats. 

Federal On Scene Coordinator (FOSC) - the Federal official predesignated by USEPA or the 

USCG to coordinate and direct responses under the FWPCA as defined in the NCP. 

Formal Consultation2 - a process between USFWS or NMFS and the Federal action agency 

(USCG or USEPA) that: (1) determines whether a proposed Federal action is likely to jeopardize 

the continued existence of listed species or destroy or adversely modify designated critical 

habitat; (2) begins with a Federal agency’s written request and submission of a complete Section 

7 consultation initiation package; and (3) concludes with the issuance of a biological opinion and 

incidental take statement, as appropriate, by either of the Services. If a proposed Federal action 

may affect a listed species or designated critical habitat, formal consultation is required (except 

when the Services concur, in writing, that a proposed action “is not likely to adversely affect” 

listed species or designated critical habitat. See informal consultation). 

Incidental Take - take of listed fish or wildlife species that results from, but is not the purpose of, 

carrying out an otherwise lawful activity conducted by a Federal agency or applicant. 

Informal Consultation - an optional process that includes all discussions and correspondence 

between the USFWS or NMFS and the Federal agency (USCG or USEPA) or designated nonFederal representative, prior to formal consultation, to determine whether a proposed Federal 

action may affect listed species or critical habitat. This process allows the Federal agency to 

utilize the Services’ expertise to evaluate the agency’s assessment of potential effects or to 

suggest possible modifications to the proposed action, which could avoid potential adverse 

effects. If a proposed Federal action may affect a listed species or designated critical habitat, 

formal consultation is required (except when the Services concur, in writing, that a proposed 

action “is not likely to adversely affect” listed species or designated critical habitat). 

Listed Species – for the purposes of this MOA, any species of fish, wildlife or plant, which has 

been determined to be endangered or threatened under Section 4 of the ESA. 

National Contingency Plan (NCP) – National Oil and Hazardous Substances Pollution 

Contingency Plan. The NCP is a national plan that provides the organizational structure and 

procedures for preparing for and responding to discharges of oil and releases of hazardous 

substances, pollutants and contaminants. The NCP is set forth in 40 CFR 300. 

2

 Formal consultation can occur during planning or after the conclusion of emergency consultation if listed species 

or critical habitat have been affected. 

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National Response Team (NRT) - a national team, defined under the NCP, responsible for 

national planning, policy, and coordination for hazardous substance and oil spill preparedness 

and response, consisting of representatives from agencies named in 40 CFR 300.175(b). 

Regional Response Team (RRT) - a regional team of agency representatives that acts in two 

modes: the standing RRT and incident specific RRT. The Co-chairs are the USCG and USEPA. 

The standing team is comprised of designated representatives from each participating Federal 

agency, state governments and local governments (as agreed upon by the states). Incidentspecific teams are formed from the standing team when activated for a response. The role of the 

standing RRT includes establishing regional communications and procedures, planning, 

coordination, training, evaluation, preparedness and related matters on a region-wide basis. It 

also includes assisting Area Committees in coordinating these functions in areas within their 

specific regions. The role and composition of the incident-specific team is determined by the 

operational requirements of the response. During an incident, it is chaired by the agency 

providing the FOSC. 

Services – Term used to refer to both the USFWS and NMFS. 

PROCEDURES 

Oil spill planning and response procedures are set forth in the NCP. This agreement is intended 

to facilitate compliance with the ESA without degrading the quality of the response conducted by 

the FOSC, to improve the oil spill planning and response process, and ensure continued interagency cooperation to protect, where possible, listed species and critical habitat. 

A. PRE-SPILL PLANNING 

(1) While drafting Area Contingency Plans themselves may not result in effects to listed species, 

actions implemented under the plans may. It is essential that the Area Committee engage 

USFWS and NMFS during the ACP planning process while developing or modifying the 

ACP and response strategies. This informal consultation can be used to determine the 

presence of listed species or critical habitat, and the effects of countermeasures, and to ensure 

that measures to reduce or avoid impacts to listed species and critical habitats during oil spill 

response activities are developed. By consulting on the anticipated effects prior to 

implementing response actions, decisions can be made rapidly during the spill, harm from 

response actions can be minimized, and implementation of response strategies specifically 

designed to protect listed species and critical habitat can be achieved. 

(2) The pre-spill planning process is shown as a flow chart in Appendix A. The Area Committee 

Chair will request, in writing, that endangered species expertise and a species list be provided 

by the Services.3 The request should also describe the area and include a general description 

of the countermeasures being considered and the planning process to be used (e.g., a 

workgroup). In order to document the request for consultation and planning involvement, the 

request shall be sent to both NOAA and USFWS. To obtain NMFS assistance, a request 

3

 40 CFR 300.170(a). 

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should be sent to the Department of Commerce (DOC) RRT representative, with a copy to 

the NOAA Scientific Support Coordinator (SSC) and the NMFS Regional Field Office. For 

USFWS support, a request should be sent to the local USFWS field office(s), with a copy to 

the USFWS Regional Response Coordinator (RRC) at the appropriate USFWS Regional 

Office(s) and the DOI RRT representative. It is the responsibility of the USFWS RRC, 

acting through the Ecological Services Assistant Regional Director, and the NOAA SSC to 

act as a liaison between the respective Service and the Area Committee. USFWS and NMFS 

will orally respond to the request within 30 days of receipt and provide a written response 

within 60 days. The response should include designation of a listed species expert to assist 

the Area Committee. 

(3) If listed species or critical habitat are present in the planning area being considered the Area 

Committee should use a planning process that ensures engagement of Service experts.4 This 

process shall ensure that the appropriate participants jointly gather and analyze the 

information needed to complete the Planning Template in Appendix C. This planning 

process constitutes informal consultation.5 The goals of this planning process are to identify 

the potential for oil spill response activities to adversely affect listed species and critical 

habitat and to identify for inclusion in the ACP information on sensitive areas, emergency 

response notification contacts, and any other information needed. Methods should be 

developed to minimize identified adverse effects and, where necessary, the plan should be 

modified accordingly. If specific sources of potential adverse effects are identified and 

removed, the Services will provide a concurrence letter and Section 7(a)(2) requirements will 

be deemed to have been met.6 

(4) If, after the process in Appendix C has been followed, it cannot be determined that adverse 

effects will not occur during a response action, the USCG or USEPA, as appropriate, will 

initiate formal consultation using the information gathered in Appendix C; this information 

will be used by the Services to complete formal consultation.7 This will be a programmatic 

consultation that generally addresses oil spill response activities at issue in the plan area. At 

times when specific information is available about certain oil spill response methods and 

listed species and critical habitat, it may be possible to pre-approve particular activities that 

may be implemented in the event there is insufficient time to initiate emergency consultation 

before the need to take action. 8 

(5) All parties recognize that development and modification of the ACP is an ongoing process. 

Changes, including modifications to response actions or changes to the species list, should be 

addressed regularly through a dynamic planning process. The Services should contact the 

4

 Process options include using an informal workgroup; formal workgroup, Environmental Risk Assessment process,

or other process based on Area Committee needs. 5

 This process does not negate any regional consultations that have already occurred, nor alter the 

strategies/procedures in the ACP until the ACP is officially modified in consultation with USFWS or NMFS. 6

 Letter is required for the administrative record. See Appendix E. 7

 Letter is required for the administrative record. See Appendix E. 8

 Due to time constraints associated with spill response, this does not mean that immediate spill response actions

cannot occur to meet the requirements of 40 CFR 300.317. However, planning should address specific procedures

for initiating emergency consultation for activities that are pre-approved and for those that have not been preapproved. 

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Area Committee or workgroup if they become aware of newly listed species that may be 

affected by planned response activities. The Area Committee should likewise notify the 

Services of changes to planned response activities. The Area Committee or workgroup 

should evaluate any changes and assess the need for additional consultation as needed. 

B. OIL SPILL RESPONSE 

During an oil spill event which may affect listed species and/or critical habitat, emergency 

consultations under the ESA are implemented (50 CFR 402.05) for oil spill response actions.9 

Emergency consultation may be conducted informally through the procedures that follow (See 

Appendix A). Emergency consultation procedures allow the FOSC to incorporate listed species 

concerns into response actions during an emergency. “Response” is defined in this agreement as 

the actions taken by the FOSC in accordance with the NCP. The FOSC conducts response 

operations in accordance with the NCP and agreement established in the ACP. 

(1) As per the NCP and ACP, the FOSC will notify the RRT representatives of DOI and DOC 

through the established notification process regardless of whether listed species or critical 

habitat is present. Upon notification, the DOC and DOI representatives shall contact the 

NOAA SSC and RRC, respectively, and other appropriate Service contacts as provided in 

internal DOC or DOI plans, guidance, or other documents. If established in the ACP, the 

FOSC may also contact the Service regional or field offices directly (see Section V(A)(3) 

above). If listed species and/or critical habitat are present or could be present, the FOSC 

shall initiate emergency consultation by contacting the Services. The NOAA SSC and RRC 

shall coordinate appropriate listed species expertise. This may require timely on-scene 

expertise from the Services’ local field offices. These Service representatives may, as 

appropriate, be asked by the FOSC to participate within the FOSC’s Incident Command 

System and provide information to the FOSC.10 

(2) The ACP, including any agreed upon references cited in the ACP, should form the basis for 

immediate information on response actions. As part of emergency consultation, the Services 

shall provide the FOSC with any timely recommendations to avoid and/or minimize impacts 

to listed species and critical habitat.11 The NOAA SSC should also be involved in these 

communications as appropriate. If incidental take is anticipated, and if no means of reducing 

or avoiding this take are apparent, the FOSC should also be advised and the incidental take 

documented. If available, the FOSC should consider this information in conjunction with the 

national response priorities established in the NCP.12 The FOSC makes the final 

determination of appropriate actions. 

(3) It is the responsibility of both the FOSC and the Services’ listed species representatives to 

maintain a record of written and oral communications during the oil spill response. The 

checklist contained in Appendix B is information required to initiate a formal consultation in 

those instances where listed species and/or critical habitat have been adversely affected by 

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 Based on pre-spill planning or discovered during the response. 10 40 CFR 300.175(b)(7) & (b)(9); 40 CFR 300.305(e). 11 See Section 8.1 of the USFWS & NMFS Endangered Species Consultation Handbook

(http://endangered.fws.gov/consultations/s7hndbk/s7hndbk.htm). 12 40 CFR 300.317 National Response Priorities.

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response actions.13 If it is anticipated that listed species and/or critical habitat may be 

affected, the FOSC may request that the USFWS and/or NMFS representative to the Incident 

Command System oversee and be responsible for the gathering of the required information in 

Appendix B while the response is still ongoing.

14 The FOSC may also choose to designate 

another individual to be responsible for collecting the information.15 Although in some 

instances the drafting of information for Appendix B may be completed after field removal 

operations have ceased, it is anticipated that collection of the information should be complete 

before the case is officially closed and that no further studies will be necessary. 

(4) It is the responsibility of the FOSC to notify the Services’ representatives in the Incident 

Command System of changes in response operations due to weather, extended operations, or 

some other circumstance. It is the responsibility of the Services to notify the FOSC of 

seasonal variances (e.g., bird migration), or other natural occurrences affecting the resource. 

If there is no Service representative in the Incident Command System, the FOSC will ensure 

that the NOAA SSC and/or DOI representative to the RRT remains apprised of the situation. 

The Services will continue to offer recommendations, taking into account any changes, to 

avoid jeopardizing the continued existence of listed species or adversely modifying critical 

habitat, and to minimize the take of listed species associated with spill response activities. 

13 See Section 8.2(B) of the USFWS & NMFS Endangered Species Consultation Handbook. 14 If requested by the FOSC, the NOAA Scientific Support Coordinator (SSC) may coordinate this data collection. 15 See Appendix D for example Pollution Removal Funding Authorization (PRFA) Statement of Work language.

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C. POST RESPONSE 

If listed species or critical habitat have been adversely affected by oil spill response activities, a 

formal consultation is required, as appropriate.16 Informal emergency consultation shall remain 

active until the case is closed. The FOSC will initiate consultation on the effect of oil spill 

response activities (not the spill itself) after the case is closed. Every effort shall be made to 

ensure that relevant information generated as part of the consultation process is made available 

for use in the Natural Resource Damage Assessment (NRDA) process. (Note: NRDA activities 

are separate from this consultation.) 

(1) After the FOSC determines that removal operations are complete in accordance with 40 CFR 

300.320(b), the impacts of the response activities on listed species and critical habitat will be 

jointly evaluated by the FOSC and the Services. 

(2) If listed species or critical habitat were adversely affected by oil spill response activities, the 

FOSC will follow the procedural requirements of 50 CFR 402.05(b) (see Appendix A). The 

document developed by following Appendix B, information required to initiate a formal 

consultation following an emergency, should be included with a cover letter to the Services 

requesting consultation and signed by the FOSC. The FOSC will work with the Services and 

the NOAA SSC, as appropriate, to ensure that Appendix B is complete.17 This document 

comprises the FOSC’s formal request for consultation. 

(3) The Services normally issue a biological opinion within 135 days of receipt of the Section 7 

consultation request (50 CFR 402.14). When a longer period is necessary, and all agencies 

agree, the consultation period may be extended. The final biological opinion will be 

prepared by the Services and provided to the FOSC, USFWS RRC, NOAA SSC, DOI and 

DOC RRT members, and the Area Committee Chair so that recommendations can be 

reviewed by the Area Committee, and where appropriate, implemented to minimize and/or 

avoid effects to listed species and critical habitat from future oil spill response actions.18 The 

result of the consultation should be considered by the FOSC for inclusion in a lessons 

learned system so changes can be made to the ACP, as necessary, for the benefit of future oil 

spill response actions. If such changes to the ACP modify the anticipated effects to listed 

species or critical habitat, the Services should appropriately document the anticipated 

changes in future effects and complete any appropriate administrative steps. 

16 If only proposed species or proposed critical habitat have been adversely affected, a formal consultation is not 

required; however, ESA conference procedures should be followed as appropriate. See the USFWS & NMFS 

Endangered Species Consultation Handbook for conference information. 17 The NOAA SSC may also assist. 18 Recommendations may also be provided for addressing effects caused by spill response actions. This information

should be provided to the NRDA process as appropriate. 

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VI. Points of Contact. The following are the points of contact for each Party: 

USCG: Chief, Office of Response, Coast Guard Headquarters (G-MOR), (202) 267-0516. 

USEPA: Oil Program Center, U.S. Environmental Protection Agency, (703) 603-8823. 

NOAA - NMFS: Section 7 Coordinator, Endangered Species Division, Office of Protected 

Resources, (301) 713-1401. 

USFWS: National Spill Response Coordinator, U.S. Fish and Wildlife Service, Division of 

Environmental Quality, (703) 358-2148. 

NOAA - NOS: Director, Office of Response and Restoration, (301) 713-2989 x101. 

DOI: Office of Environmental Policy and Compliance, (202) 208-6304. 

VII. Funding and Resources. This agreement is not a fiscal or funds obligation document. 

Nothing in this agreement shall be construed as obligating any of the Parties to the expenditure 

of funds in excess of appropriations authorized by law or otherwise commit any of the Parties to 

actions for which it lacks statutory authority. It is understood that the level of resources to be 

expended under this agreement will be consistent with the level of resources available to the 

Parties to support such efforts. Any activities involving reimbursement or contribution of funds 

between the Parties to this agreement will be handled in accordance with applicable laws, 

regulations and procedures. Such activities will be documented in separate agreements with 

specific projects between the Parties spelled out. The separate agreements will reference this 

general agreement. 

VIII. Effective Date. The terms of this agreement are effective upon signature by all Parties. 

IX. Modification. This agreement may be modified upon the mutual written consent of the 

Parties. 

X. Termination. The terms of this agreement, as modified, with the consent of all Parties, will 

remain in effect until terminated. Any Party upon 60 days written notice to the other Parties may 

terminate their involvement in this agreement. 

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Inter-agency Memorandum of Agreement Regarding Oil Spill Planning and Response Activities Under the 

Federal Water Pollution Control Act’s 

National Oil and Hazardous Substances Pollution Contingency Plan and the Endangered 

Species Act 

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Appendix A A-102
Appendix A 

PRE-SPILL PLANNING 

Appendix A A-103 

FOSC requests 

endangered 

species expertise & 

species list 

from Services 

RRC/SSC 

act as 

Service 

liaison 

Species/habitat 

identified 

in area? 

Joint "Working group" 

formed 

(Service & 

Area Committee reps) 

Working Group 

Completes Appendix C 

using ACP planning 

process* 

*Goal is to develop 

strategies with minimal or 

no adverse effects 

Services utilize info 

developed in 

Appendix C to finalize 

formal consultation. 

Sec 7 (a)(2) req's fulfilled 

Services provide 

concurrence letter; 

Sec 7(a)(2) req's fulfilled 

Species/habitat 

still potentially 

adversely 

affected? 

No YES further 

consultation 

required 

NO 

Informal Consultation/ 

ACP Planning Process 

NO YES 

Informal Consultation Formal Consultation
Appendix A 

Appendix A A-104 

Notification occurs in 

accordance with 

NCP & ACP 

Listed species or 

critical habitat 

potentially affected 

by response ops? 

Endangered 

species expertise 

not required 

USFWS/NMFS 

Endangered 

species 

expertise 

requested 

USFWS and/or NMFS 

endangered species 

expertise provided to 

FOSC's Incident 

Command System 

Listed species or 

critical habitat 

anticipated affected 

by response ops? 

USFWS/NMFS 

provide 

recommendations to 

minimize impact 

Appendix B 

information 

completed 

USFWS/NMFS 

continue to provide 

recommendations to 

avoid impact 

FOSC closes case, 

emergency 

consultation ends 

OIL 

SPILL 

NO YES 

NO YES

RESPONSE 
Appendix A 

POST RESPONSE 

FOSC signs initiation 

package, cover letter 

requests consultation 

Information 

complete? 

Drafter completes data 

with assistance from 

Services/other 

agencies as needed 

Appendix B completed 

(RRC & SSC may act 

as liaison) 

Listed species or 

critical habitat adversely 

affected by spill 

response actions? 

Within 30 days, 

the Services 

notify FOSC 

Package returned 

to Services 

Services formulate 

consultation document 

& Incidental Take 

Statement as 

appropriate 

Lessons Learned 

entered into database, 

revisions made 

to ACP as necessary 

Documentation 

forwarded to FOSC with 

copy to RRC/SSC, 

DOI & DOC RRT reps, 

& Area Committee 

YES 

NO YES

Lessons Learned 

entered into database, 

revisions made 

to ACP as necessary 

NO 

Appendix A A-105
Appendix B 

APPENDIX B 

EMERGENCY CONSULTATION 

INFORMATION CHECKLIST IN ANTICIPATION OF FOLLOW-UP FORMAL CONSULTATION (50

CFR 402.05) 

As soon as practicable after the emergency is under control, which occurs when the case 

is closed, the FOSC initiates consultation (either formal or informal, as appropriate) with 

the Services if listed species and/or critical habitat have been affected. The FOSC should 

ensure that the following checklist is completed before the case is closed. After the case 

is closed, this information along with a cover letter requesting consultation will be sent to 

the Services. 

1. Provide a description of the emergency (the oil spill response). 

2. Provide an evaluation of the emergency response actions and their impacts on listed 

species and their habitats, including documentation of how the Services’ 

recommendations were implemented, and the results of implementation in 

minimizing take. 

3. Provide a comparison of the emergency response actions as described in #2 above 

with the pre-planned countermeasures and information in the ACP. 

Appendix A A-106 
Appendix C 

APPENDIX C 

PLANNING TEMPLATE 

One of the goals of the Area Contingency Plan (ACP) planning process is to develop 

strategies or actions that reduce the potential for planned oil spill response activities to 

adversely affect listed species and designated critical habitat. The planning process may 

also develop strategies that purposefully protect these resources. The following template 

is recommended for use by a working group of both Service and Area Committee 

representatives to develop a document that 1) is used to complete consultation pursuant to 

Section 7 (a)(2) of the Endangered Species Act of 1973, as amended, and 2) produces 

information to be included in the appropriate sections of the ACP. To streamline the 

consultation process, the various sections of this document could be drafted during the 

planning process and used to develop or modify the ACP.19 This development process 

will assist all parties in gaining a thorough understanding of the actions under review and 

provide opportunities for any Section 7 consultation related issues to be raised and 

addressed in the planning process, rather than during the oil spill response action. 

This template is intended to guide the thought process of creating consultation documents 

and incorporates content requirements set forth in 50 CFR 402.12 as well as information 

pertinent to the National Contingency Plan requirements under the Fish and Wildlife 

Annex; not every item will be applicable to every situation.20 

Introduction 

This section generally should be completed in one, or possibly two paragraphs. 

• General overview of the response strategy including: (1) a brief description - one to 

two sentences; (2) background, history, etc. as appropriate; (3) purpose of the 

response strategy; (4) identification of the species and designated critical habitat that 

may be affected (for consultations that will address large numbers of species, it may 

be desirable to present this list in the form of a table either attached or presented in 

another section. Also, if species that may potentially occur in the area are not 

included in this document, explain why). 

This should be developed jointly by the action agency and the Services. 

Description of the Proposed Response Strategy 

•	 Provide a description of the response strategy being considered. This is likely to be a 

detailed description taken substantially from the ACP. It should include how the 

19 It is not required that this planning template be formally written or completed during informal 

consultation, especially if no modifications to the strategy are required. However, it can be very useful in

documenting the [team’s] thought process for the administrative record, serving as a guide, or providing 

additional documentation as needed. 20 The guide on “Developing Consensus Ecological Risk Assessments” provides procedures which may be 

helpful in exploring and analyzing these issues. Copies can be obtained from USCG Headquarters (GMOR-2). 

Appendix A A-107 
Appendix C 

response action will be implemented, including equipment and methods. Examples 

include use of dispersants to avoid shoreline impacts, and deployment of booms to 

protect sensitive areas. Include all known aspects of the action, such as time frames, 

why the action is appropriate, indirect effects, etc. An example of an indirect effect 

may be hauling boom on, or driving vehicles through, a sensitive dune area to gain 

access to a spill site. 

This should be developed by the action agency with the assistance of the Services. 

• Provide a description of specific area that may be affected by the response strategy 

(i.e. Sample Bay, 100-mile section of outer coastline, etc.). Include some 

measure of the area potentially impacted (i.e., “This plan addresses oil spill 

response activities that may be conducted out two miles from the coast 

throughout the 100 mile coastline area encompassed by this ACP”). If 

different activities are being proposed in different areas, identify this. The 

team should discuss the appropriateness of presenting this information in 

terms of the activities that will be conducted within each area, or the areas 

where each activity will be conducted. For example, “Dispersants may be 

applied throughout the 10 mile coastline length of Area A and the 25 mile 

coastline length of Area B.” Maps may be useful. 

This should be developed mainly by the action agency; however, 

modifications may be made with the assistance of the Services and subject 

to the approval process for chemical countermeasures in the NCP as 

appropriate. 

• Identify how to quickly obtain species/habitat information during a spill (i.e. first 

refer to ACP and site summary sheet, call State FWS, check website, etc.). 

This should be developed jointly by the action agency and the Services. 

•	 Identify emergency response points of contact to be notified during a spill. Establish 

spill parameters for notification as necessary. These should be included in emergency 

Appendix A A-108 
Appendix C 

notification numbers as well as on any site summary sheets, in geographic response 

plans, etc. 

This should be developed jointly by the action agency and the Services. 

Description of the Affected Environment 

• Describe the listed species and designated critical habitat areas that may be affected 

by the action in terms of overall range and population status. Include the number and 

location of known subpopulations within and adjacent to the action area (i.e., identify 

the areas known to be used by the species and, if appropriate, identify the specific 

times periods of use, such as February - April). Discuss the action area in relation to 

the distribution of the entire population (e.g., edge of the range, center of population 

abundance, key reproductive area, etc.). Present views of Service recognized experts 

on the species, if appropriate. 

This should be provided by the Services. 

•	 Ensure that these sensitive areas are referenced in the ACP (i.e. via ESI maps, 

specially generated GIS maps, site summary sheets, or other digitized format, etc.). 

This should be completed by the action agency. 

• Provide biological data on listed species: historical use, presence, and potential use of 

habitat areas within the action area. Literature and other documents 

containing such information may be incorporated by reference. Provide 

species observation information, and recent results of species surveys, 

including, if appropriate, a description of methods, time of year surveys 

were performed, level of effort, and confidence intervals. Again, literature 

and other documents containing such information may be incorporated by 

reference. Maps may be useful to depict this information. 

The Services should assist in developing this information. In many 

instances the Services will be able to supply this information from their 

records. 

Appendix A A-109 
Appendix C 

• Identify other designated sensitive areas, both adjacent to and within the proposed 

action area. These include National Wildlife Refuges, National Marine Sanctuaries, 

etc. 

This should be developed jointly by the action agency and the Services. 

Analysis of the Effects of the Action 

•	 Describe all effects of the response strategy relative to the listed species of concern 

and its habitat, including designated critical habitat. This should include direct, 

indirect, beneficial, and cumulative effects as well as effects from interrelated and 

interdependent actions, if any. 

This should be developed jointly by the action agency and the Services. 

• Describe any measures that may avoid or lessen adverse effects as well as any 

measures that will enhance the species’ present condition. If appropriate, 

delineate the locations of such measures. A discussion of environmental 

“tradeoffs” (including no action) may be appropriate. For example, 

“Dispersants may be toxic to the listed aquatic species when used in 

concentrations above 70%; however, oil coming ashore and smothering the 

listed species in tidal marshes is of greater concern due to the extremely 

poor conservation status of this species.” Reference any already completed 

relevant reports, studies, biological assessments, etc. 

This should be developed jointly by the action agency and the Services. 

Modification to Strategy (as needed) 

If necessary, after joint analysis of the information, the action or strategy may be 

modified. 

•	 Describe the new strategy or action. For example, “Dispersants will not be 

used in concentrations above X% or in areas less than three feet deep. They 

may be used in Area A and Area B. A Service representative from Regional 

Appendix A A-110 
Appendix C 

field office B will be contacted during an oil spill response during the months 

of February - April in Area B.” 

This should be developed jointly by the action agency and the Services. 

Documentation 

This template is a guide to help you through the planning process, however, when 

sections are written out as the process is completed, the final document serves the same 

purpose as a biological assessment. It may be used to complete consultation pursuant to 

Section 7 of the ESA. 

•	 The document should be maintained on file by the Services and may be referred to 

during an oil spill response. 

•	 The Area Committee will ensure that this document becomes part of the ACP as 

appropriate such as: 

- Included as an appendix to the Dispersant or In Situ Burn Operations Plan; 

- Included as a reference document in the appropriate section of the ACP; 

- Include relevant information in sections of the ACP such as Notifications, Site 

Summary Sheets, Geographic Response Plans, GIS maps, etc. 

•	 The document should include points of contact from both the action agency and the 

Services. 

Appendix A A-111 
Appendix D 

APPENDIX D 

SAMPLE POLLUTION REMOVAL FUND AUTHORIZATION (PRFA) LANGUAGE* 

This Statement of Work (SOW) language is intended as sample language only. The 

language can be tailored to ensure that the FOSC is provided with the resources needed to 

meet the desired activities or functions required. Accordingly, more precise or succinct 

language may be used. 

PRFA SOW additional/optional work elements to meet the FOSC’s ESA mandated 

activities associated with removal actions: 

..... 

To arrange for, and as appropriate coordinate with, the resources needed to meet the 

conference and consultation requirements of the ESA. 

Specific activities anticipated under this requirement include: 

(a) Providing the expertise needed to make sensitive removal decisions which could 

potentially impact on listed species or critical habitats associated with this incident; 

(b) Gathering and documenting the information needed to provide input into the 

aforementioned decisions and to document the resulting impact of removal actions; 

and 

(c) As required, preparing the consultations required of the FOSC for the Service(s). 

Funding under this agreement is provided for: 

(a) Salaries, travel and per diem; 

(b) Appropriate charges for use of equipment or facilities; 

(c) Any actual expenses for goods and/or services reasonably obtained in order to 

provide the agreed upon support to the FOSC removal activities (including contracts.) 

* Developed by the National Pollution Funds Center 

Appendix A A-112 
Appendix E 

APPENDIX E 

SAMPLE LETTERS FOR REQUESTING CONCURRENCE 

OR FORMAL CONSULTATION 

These sample letters have been developed to assist the Parties to this agreement in 

documenting the requirements of the Endangered Species Act. This is suggested wording 

only and may be used to complete the administrative record as needed. The request for 

concurrence can be used after the planning process for a particular area or 

countermeasure when it has been determined that no adverse effects will occur. The 

Services will provide a concurrence letter, as appropriate, for documentation. 

Alternatively, the request for formal consultation can be used after planning results 

indicate that adverse effects may still occur. If this is the case, the Services will evaluate 

the information developed jointly by the workgroup and issue a biological opinion. 

Request for Concurrence Letter: 

Mr./Ms. xxx 

U.S. Fish and Wildlife Service/National Marine Fisheries Service

Division of Endangered Species 

Dear Mr./Ms. xxx:

In accordance with the requirements of Section 7 of the Endangered Species Act, I am seeking your 

concurrence that the [Coast Guard’s/EPA’s] implementation of the [name of plan] is not likely to adversely 

affect the [identify the listed species and designated critical habitat that may be affected. Note, in cases 

where many listed species or critical habitat designations may be involved, it may be appropriate to refer to 

an attached list]. This [name of plan] has been developed with the assistance of [name of Service staff] of 

the U.S. Fish and Wildlife Service/National Marine Fisheries Service and in accordance with the 

procedures identified at 40 CFR Part 300, the National Contingency Plan. To assist in completing informal 

consultation, please find attached the Biological Evaluation that has been produced through the planning 

process described in the Inter-agency Memorandum of Agreement Regarding Oil Spill Planning and 

Response Activities Under the Federal Water Pollution Control Act’s National Oil and Hazardous 

Substances Pollution Contingency Plan and the Endangered Species Act using the Planning Template 

contained in Appendix C of that Agreement. 

Thank you for your efforts in this matter. If you require additional information, please 

contact [provide a contact with a telephone number]. 

Sincerely, 

Appendix A A-113 
Appendix E 

Request for formal consultation: 

Mr./Ms. xxx:

U.S. Fish and Wildlife Service/National Marine Fisheries Service

Division of Endangered Species 

Dear Mr./Ms. xxx:

In accordance with the requirements of Section 7 of the Endangered Species Act, I am

requesting the initiation of Formal Consultation on the effects of the [Coast 

Guard’s/EPA’s] implementation of the [name of plan]. Through informal consultation 

with your staff [or identify the appropriate Service office(s)], we have determined that 

implementation of spill response activities in accordance with the subject [name of plan]

is likely to result in adverse effects to [identify the listed species and designated critical

habitat that may be affected. Note, in cases where many listed species or critical habitat 

designations may be involved, it may be appropriate to refer to an attached list]. This 

[name of plan] has been developed with the assistance of [name of Service staff] of the 

U.S. Fish and Wildlife Service/National Marine Fisheries Service and in accordance with

the procedures identified at 40 CFR Part 300, the National Contingency Plan. While 

these actions may result in short-term adverse effects, it is our belief that the species [and 

designated critical habitat areas] will ultimately benefit from them. To assist in 

completing Formal Consultation, please find attached the Biological Evaluation that has 

been produced through the planning process described in the Inter-agency Memorandum 

of Agreement Regarding Oil Spill Planning and Response Activities Under the Federal 

Water Pollution Control Act’s National Oil and Hazardous Substances Pollution 

Contingency Plan and the Endangered Species Act using the Planning Template

contained in Appendix C of that Agreement. 

Thank you for your efforts in this matter. If you require additional information, please 

contact [provide a contact with a telephone number]. 

Sincerely, 

Appendix A A-114