ESA Consultation Process

The implementing regulations for Section 7 of the ESA at 50 CFR 402.05 provide for consultation to be conducted in an expedited manner under emergency circumstances. The regulations state that such provisions apply “…to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” The Endangered Species Consultation Handbook (USFWS and NMFS 1998) further clarifies emergency circumstances include “…response activities that must be taken to prevent imminent loss of human life or property.” The USFWS considers an incipient dreissenid outbreak in the CRB to meet the regulatory definition of an emergency situation given the clear and significant threat to property if invasive mussels become established. During any emergency situation, the first priority is protecting human safety and health. Where listed species and critical habitats are involved, the USFWS and NMFS also place a priority on providing recommendations/technical assistance to Federal response agencies for avoiding and minimizing any adverse effects to listed species and critical habitats likely to be caused by response efforts without impeding the protection of human health and safety.

In emergency situations, consultation does not occur on the emergency; rather, consultation is conducted on the agency response to the emergency, and consultation is handled in an expedited manner. If a formal consultation is required, it is initiated as soon as practicable after the emergency is under control.

Typically, when an emergency situation occurs, the Federal action agency contacts:

The USFWS Regional Ecological Services Office (either Region 1 or 6 for the CRB) by telephone if an emergency event is determined to be in proximity to listed species or critical habitat and warrants Section 7 consultation. See Appendix B for a list of the FWS Ecological Services Section 7 contacts for the CRB States.

National Oceanic and Atmospheric Administration Fisheries staff in the West Coast office by email if an emergency event may occur in locations where ESA-listed species exist and to determine the potential effects on those species and/or designated critical habitat. The contact should occur as quickly as possible following the onset of the emergency.

Detailed guidance on emergency consultation procedures is provided on pages 8-1 through 8-6 of the Endangered Species Consultation Handbook (USFWS and NMFS 1998) and excerpted below.

PROCEDURES FOR HANDLING EMERGENCY CONSULTATIONS

(A) Initial Contact by the Action Agency

The initial stages of emergency consultations usually are done by telephone or facsimile, followed as soon as possible (within 48 hours if possible) by written correspondence from the Services. This provides the Services with an accurate record of the telephone contact. This record also provides the requesting agency with a formal document reminding them of the commitments made during the initial step in emergency consultation (Figure 8-1). During this initial contact, or soon thereafter, the Services' role is to offer recommendations to minimize the effects of the emergency response action on listed species or their critical habitat (the informal consultation phase). DO NOT stand in the way of the response efforts.

If this initial review indicates the action may result in jeopardy or adverse modification, and no means of reducing or avoiding this effect are apparent, the agency should be so advised, and the Services' conclusions documented.

Project leaders should establish procedures (e.g., a calling tree) within their offices outlining who can be called to handle the emergency consultation. Once these procedures have been established, they should be provided to all Federal agencies in that operating area responsible for handling emergency situations (e.g., Coast Guard, Environmental Protection Agency, and Federal Emergency Management Agency) and any other Federal agencies with responsibilities in the operating area.

The FWS Field Office conducting the consultation should notify the FWS Assistant Regional Director responsible for endangered species and/or the ecosystem at risk, following timeframes established by FWS Regional guidance. The notification should be in memo form, following the format outlined in Exhibit 8-1. Early telephone notification may be required. For NMFS, the Regional Director should notify the Director, Office of Protected Resources.

(B) Initiating Formal Consultation

As soon as practicable after the emergency is under control, the action agency initiates formal consultation with the Services if listed species or critical habitat have been adversely affected. Although formal consultation occurs after the response to the emergency, procedurally it is treated like any other formal consultation. However, the action agency has to provide additional information to initiate a formal consultation following an emergency:

a description of the emergency;
a justification for the expedited consultation; and
an evaluation of the response to and the impacts of the emergency on affected species and their habitats, including documentation of how the Services’ recommendations were implemented, and the results of implementation in minimizing take.

Emergency Consultation Process

Emergency occurs for which Federal response action may affect listed species or critical habitat

Action agency calls the Service for advice on measures for minimizing the effects of the response

Response Action Taken

Action agency initiates formal consultation after the fact

Service provides after the fact opinion that documents the effects of the emergency response on listed species and/or designated critical habitats

(C) Emergency Biological Opinion

After concluding formal consultation on an emergency, the Services issue an emergency biological opinion. The "effects of the action" section, documents the recommendations provided by the Services to the action agency and the results of agency implementation of the recommendations on listed species. The timeframe, format and contents are the same as for formal consultation (see Chapter 4 of the ESA Consultation Handbook (USFWS and NMFS 1998)). A sample of standardized language for an emergency consultation document can be found in Appendix B in the ESA Consultation Handbook. The standardized statements for formal consultation have been modified to reflect that this is, in most cases, an after-the-fact consultation.

Documenting jeopardy and adverse modification biological opinions is particularly important to tracking the effect on species and habitat conditions. For FWS, emergency biological opinions with the conclusion of "not likely to jeopardize" the species or "not likely to result in destruction or adverse modification of critical habitat" are completed at the Field Office level. However, if the conclusion is likely jeopardy or adverse modification, the consultation is elevated to the Regional Office. Such a finding may not have a reasonable and prudent alternative available, unless some further action can restore or enhance the species to a level below the jeopardy threshold. For NMFS, emergency opinions are signed in Washington by the Director, Office of Protected Resources, except where a specific Region has been delegated signature authority (i.e., Northwest and Southwest Regions have been delegated signature authority for anadromous fish).

(D) Incidental Take Statement

If incidental take is anticipated during the emergency response, the Services can advise the action agency during the informal consultation phase of ways to minimize take. In some circumstances, the actual or estimated take occurring from the agency’s emergency response actions can be determined, and should be documented in the biological opinion for future inclusion in the species’ environmental baseline. The incidental take statement in an emergency consultation does not include reasonable and prudent measures or terms and conditions to minimize take, unless the agency has an ongoing action related to the emergency. Rather, an emergency consultation incidental take statement documents the recommendations given to minimize take during informal consultation, the success of the agency in carrying out these recommendations, and the ultimate effects on the species of concern through take.

(E) Conservation Recommendations

Emergency consultations may contain conservation recommendations to help protect listed species and their habitats in future emergency situations or initiate beneficial actions to conserve the species.

Note: While the timing of "emergencies" is unpredictable, the types of emergencies that may affect listed species or critical habitat can be determined in advance. Emergency response actions are routinely practiced by responsible Federal agencies. Advance coordination with responsible Federal agencies is encouraged so that endangered species components can be incorporated into the emergency response where appropriate.

Conferences

Section 7(a)(4) of the ESA requires Federal agencies to confer with the USFWS and NMFS (the Services), as appropriate, incases where the agency, or the Services, have determined that a proposed or ongoing Federal action is likely to jeopardize the continued existence of species proposed to be listed under Section 4 of the ESA, or result in the destruction or adverse modification of critical habitat proposed to be designated for such species; see Chapter 6 (pp. 6-1 through 6-10) of the Services' Consultation Handbook (USFWS and NMFS 1998).

The Services encourage Federal agencies to conference on actions that may affect a proposed species, or proposed critical habitat. In such cases, conference concurrence determinations, or conference opinions, can be adopted as formal concurrences or biological opinions, respectively, after a proposed species is listed, or the critical habitat is designated. This approach can avoid disruption of project implementation due to the need to initiate and complete formal consultation at the time of listing or designation. It also facilitates, or promotes, action agency consideration of the conservation needs of proposed species and the recovery function of proposed critical habitat. Emergency consultation procedures can be adapted to accommodate the conference process if necessary.

Exhibit 8-1. FWS Emergency consultation notification memorandum to the Regional Office (optional).

(date)

Memorandum

To: Assistant Regional Director, Region _____ (number) _____

From: Field Supervisor, _____ (name of Field Office) _____

Subject: Emergency Consultation on _____ (name of Federal action) _____

This office has completed an informal emergency consultation. The following information summarizes the location of the emergency, nature of the emergency, listed species and critical habitat(s) involved, and how those species and habitats are likely to be affected by the emergency.

Date of Contact:

Time:

Contact(s) Name:

Agency:

Contact(s) Title:

Nature of the Emergency:

Species/Critical Habitats in the Area:

Anticipated Effects:

Recommendations Given the Contact:

Alignment with Regional and State Plans

The use of emergency consultation procedures aligns with the CRB Plan. Use of emergency consultation procedures is consistent with the Department of Interior’s objectives to use efficient and effective processes that provide for a timely and rapid response to dreissenid introductions. Also, the states in the CRB (Washington, Oregon, Idaho, Montana, Wyoming, Nevada and Utah) have state-specific Aquatic Nuisance Species Management Plans approved by the Aquatic Nuisance Species Task Force (https://www.anstaskforce.gov/stateplans.php). In addition, Washington (DeBruyckere et al. 2014), Oregon (Draheim et al. updated 2017), Idaho (Idaho Department of Agriculture updated 2015) and Montana (Montana Fish, Wildlife, and Parks 2018) have specific dreissenid mussel rapid response plans that align with state AIS plans. The use of emergency consultation procedures aligns with these state plans.

Graphic credit: L. DeBruyckere