ESA Consultation Introduction

Section 7(a)(1) of the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531-1544, 87 Stat. 884) directs all Federal agencies to use their existing authorities to carry out programs to conserve threatened and endangered species. Section 7(a)(2) of the ESA directs all Federal agencies to ensure, in consultation with the U.S. Fish & Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), that their actions do not jeopardize listed species, or destroy or adversely modify critical habitat. Critical habitat is defined in section 3 of the ESA as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Although ESA sections 7(a)–(d) continue to apply to agency responses to acts of God, disasters, casualties, national defense, or security emergencies, etc., the regulations implementing these sections (described below) provide for expedited procedures to accommodate the need for Federal agencies to respond promptly to emergency circumstances.

Emergency consultation is an expedited consultation process that considers listed species concerns while allowing an action agency to respond to an emergency situation.

Purpose of the ESA Consultation Portion of the Toolkit

This portion of the toolkit is intended to be used in conjunction with the CRB Plan and any associated rapid response plans (e.g., state plans) to implement an immediate and effective response to an introduction of dreissenid mussels in the CRB. This manual describes: the core elements of the emergency consultation process; the proposed action; and listed species and critical habitats occurring within the U.S. portion of the CRB. This toolkit also describes best management practices that can be used to avoid or minimize adverse impacts to listed species and critical habitat, and steps involved in post-emergency consultation.

The purpose of this portion of the toolkit is to:

Delineate a suite of most-likely rapid response eradication actions for a potential introduction of dreissenids within CRB states;
Provide an assessment of the potential for those mechanical, or chemical, actions to affect ESA-listed species and critical habitats; and
Present best management practices (BMPs) that can avoid, reduce, or eliminate adverse effects of the rapid response actions on listed species and/or critical habitat. The BMPs are recommendations that action agencies can use to reduce their effects to listed species and their habitats after engaging emergency consultation procedures with USFWS.

Scope and Intent of the ESA Consultation Portion of the Toolkit

Information in the ESA Manual is intended to facilitate emergency consultation procedures for Federal actions associated with an introduction of dreissenids in the U.S. portion of the CRB. This manual is not meant to be a comprehensive guide for dreissenid mussel response in the CRB; the CRB plan serves that function.

The information in this toolkit could help inform the listed species/critical habitat portion of a National Environmental Policy Act (NEPA) analysis. Emergency response activities not statutorily exempt from NEPA may require the development of a brief Environmental Assessment that describes the need, alternatives, environmental impacts of proposed actions and alternatives, and the list of agencies and persons consulted. Similarly, information in this toolkit could help State and other non-Federal agencies comply with the ESA (e.g., Section 6 or Section 10). However, this toolkit does not directly address NEPA or ESA compliance for non-federal actions, which are addressed, to some degree, in the CRB plan (Heimowitz and Phillips 2008). This toolkit discusses a subset of the treatment options listed in the CRB plan, focusing on the treatments most likely to be used in open water systems. If a treatment is not included in this toolkit, the action agency can obtain species-specific best-management practices for ESA listed species via the emergency consultation process.

The toolkit includes ESA-listed species under the jurisdiction of the U.S. Fish and Wildlife Service and National Marine Fisheries Service.

Triggering an
Endangered Species Act (ESA) Consultation

Section 7 (a)(2) of the ESA requires Federal agencies to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any federally listed threatened or endangered species, or to result in the destruction or adverse modification of designated critical habitat.

When a Federal agency determines that its action “may affect” a listed species and/or designated critical habitat, the agency is required to consult with the US Fish and Wildlife Service (USFWS) and/or the National Marine Fisheries Service (NMFS) to ensure the above standards are met.

Even if a non-federal jurisdiction is leading a rapid response operation, an associated federal action may trigger a need for compliance with Section 7 of the ESA, such as:

Actions on federal land
Actions that require a federal permit
Actions that require a federal license
Actions using federal funds
Actions implemented by federal agency employees

State Response Actions and

Section 6 of the ESA

In general, State response actions involving emergency circumstances and take of listed species are likely to have a Federal nexus that will facilitate take coverage under the emergency consultation provision of the implementing regulations for section 7 of the ESA. Take is defined under the ESA to include: kill, harm, harass, capture, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in such conduct. In addition, Section 6 of the ESA allows for the take of listed species by a state agency when it is either:

(a) an action carried out by the state agency (or its designated agent) that is signatory to a current and valid Section 6 cooperative agreement with the Service; is carried out for conservation purposes consistent with the cooperative agreement, a species’ specific recovery plan, and the ESA; and is not reasonably anticipated to result in death, disabling, out-of-state removal, introduction outside of native range, or captivity exceeding 45 days of any federally-endangered species. See Appendix A for the underlying regulatory provision from 50 CFR § 17.21(c)(5).

(b) in accordance with a Section 10 permit issued by the Service.

The Service has determined that rapid response to eradicate an incipient introduction of zebra or quagga mussels into the Columbia Basin would fall under the “conservation purposes” criterion in (a).

Dreissenid Mussel Rapid Response in the Columbia River Basin: Recommended Practices to Facilitate Endangered Species Act Section 7 Compliance