Key Web sites guide you through ESA process

Key Web sites guide you through ESA process

By Sharon Kophs

The purpose of the Endangered Species Act (ESA) is to conserve the nation's natural heritage for the enjoyment and benefit of current and future generations. As such, the ESA directs all federal agencies to participate in conservation of species endangered or threatened with extinction.

Section 7(a)(2) of the act charges federal agencies with ensuring their activities "will not jeopardize the continued existence of listed species or adversely modify designated critical habitats." This means any project using federal funds must comply with Section 7(a)(2) of the ESA through a consultation process. This includes all projects using EPA 128 grant, direct brownfields assessment or cleanup grants, and cleanup funding through Brownfields revolving loan funds.

EPA Region 10 requests its nonfederal partners and grantees to provide sufficient information to make such a determination. Generally, the ESA consultation is conducted as part of a project's eligibility determination for an assessment pilot, or before initiating construction work for a cleanup site. A consultation may need to be completed for each phase if conditions change.

Remember that finding a listed species in your project area does not cancel a project. It means a mitigation plan may need to be incorporated into your project work. A mitigation strategy may be as simple as observing a 100-foot, non-construction zone around a nesting bird while the fledglings are in the nest.

The U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) share responsibility for implementing the ESA. The FWS manages 1,290 land and freshwater species, such as animals, plants, vertebrates and invertebrates. The NOAA has jurisdiction over 61 listed species, such as marine mammals, sea turtles, invertebrates and anadromous salmon (ocean species that return to rivers to spawn).

A federal agency is not required to consult with ESA-responsible agencies if it's determined that a project will not affect listed species or critical habitat. This guide is a roadmap to ESA information so you can determine if a listed species or critical habitat may be near your project area. It will also help you determine if an informal or formal consultation is even needed.

How does the consultation process work?
There are informal and formal consultations. An informal consultation is an optional process designed to determine if endangered or threatened species may be present, or if the project area is in a critical habitat or recovery area. There's no specified timeframe for informal consultations, and they can occur orally or in writing. An informal consultation may include help with mitigation planning from an FSW expert.

A formal consultation is a mandatory process when proposed projects may adversely affectt listed species, and concludes with the issuance of a biological opinion by the FWS. Federal agencies are allowed 90 days to consult with the agency and applicant and 45 days to prepare and submit a biological opinion. Thus, a biological opinion is submitted to the federal agency within 135 days of initiating formal consultation. This period can be extended by mutual agreement of the parties and certain other conditions.

The FWS and NOAA strongly encourage the use of informal consultations. Most often, these result in a determination of no adverse effect, or counsel on mitigation strategies without need for the more time-consuming formal consultation. But performing an initial screening for endangered or threatened species and critical habitat even before the informal consultation may avoid a consultation altogether. Because of the available databases, the federal agencies told me they are no longer providing letters unless a consultation is needed. But if your project officer requires, a letter can be provided from your regional FWS--just allow sufficient time and include your review as described below.

How is the consultation process started?
The first step in the consultation process is to determine if listed species are present within the project action area. An action area is defined as "all areas to be affected directly or indirectly by the federal action and not merely the immediate area." Today the listings are easily found on the Web site for each responsible agency…if you know where to look.

The FWS and NOAA ask that your initial screen (a downloaded copy from the database for your project area) accompany consultation requests. The data must have the calendar date from which it was downloaded.

To obtain listings for species of concern, you will need to visit several agency Web sites. The following steps direct you to the appropriate federal databases. Remember, each state may have additional species of concern and therefore state rules that apply.

Step 1: The first stop is TESS (Threatened and Endangered Species database System), located at www.fws.gov/endangered/wildlife.html. In the TESS system you will generate a report for your state for plants and animals and find your FWS region contact. By clicking on a specific species, you will find detailed information, common names and habitat areas. If you want an overview of the ESA or other wildlife information, you might go back one page to where you will find lists of species proposed for listing, process and other information. It is important to have the date you obtained the data from the TESS because the listing is only valid for six months.

You may also find an ESA listing for your county at your FWS Regional Office home page.

But, you aren't finished yet. While TESS lists plants and animals, there are other threatened species that may be in your project area.

Step 2: The next stop on your cyber journey is at the NOAA Web page, www.nwr.noaa.gov/Species-Lists.cfm. Here you will obtain three lists: ESA-listed salmon, marine mammals and marine turtles. If your project is not along the ocean, you may not have marine mammals and turtles (you will find more specific information in Step 3). But on this page be sure to check the rivers in your area at "ESA-listed Salmon," on the left side of the Web page. Print each of the lists that apply to your action area for use in Step 4.

You also might want a map of your state's critical salmon habitat from www.nwr.noaa.gov/Salmon-Habitat/Critical-Habitat/Index.cfm. The ESA-listed salmon table and map designate major recovery areas for West Coast salmon and steelhead, which may be along many brownfield project areas.

Step 3: To find information and critical habitat on specific ESA-listed marine species, go to www.nmfs.noaa.gov/pr/species/habitat.htm. If in your action area, you can create a map for specific species by using the map wizards along the right side of the Web page.

There are several mapping programs in the FWS and NOAA Web sites, including GIS system. By using a point, drag and click motion on your state project area, you can define critical areas, habitat, counties and other information.

Step 4: To make reviewing the data easier, create a table from the data collected with species, critical area, and your determination of effect in the specific action area (e.g., no habitat in action area, no project impact, critical area X miles/blocks from habitat; for plants, no impact, project area covered by pavement, and so forth).

If there are no listed species or designated critical habitat, there are no further steps. Prepare a letter to your EPA Region 10 project officer explaining that your ESA data search returned no endangered species or critical habitat located in your project area. It may be a good idea to put the table in the letter and append the lists.

What if a listed species or designated critical habitat is present?
You now will determine if your specific project actions may affect a listed species or critical habitat. This determination is based on the presence of the species in the action area, the time of year (migration or nesting) and on the environmental baseline within the action area. Unless you are qualified, this determination is best completed in consultation with a regional FWS and NOAA official, found at www.fws.gov/endangered/contacts.html#R1.

If endangered species or critical habitats are present in or near your project area, the ESA-lead agencies will provide a thorough analysis of potential direct and indirect effect. They may visit the project area to see the local conditions and will assist you in developing a mitigation plan. The federal agency will make a determination of no affect (the proposed action won't affect listed species or critical habitat), may affect or likely to adversely affect. An adverse affect determination will trigger a formal consultation request with the FWS.

Because brownfields projects are generally in previously developed areas, many projects won't adversely impact endangered or threatened species. Your review will end on your project officer's concurrence with your opinion. If you are requested to proceed to a formal consultation, a handbook is available at the FWS Web site: www.endangered.fws.gov/consultations/s7hndbk/htm.

While FWS and NOAA have responsibility for federal ESA listings, there are other agencies participating in the protection of endangered species. State lists overlap federal species; however, there may be additional species of concern at the state level. If state regulations require, you may want to consult with your regional state Fish and Wildlife Service and Natural Resource Department. State agencies often will provide informal consultation letters or an e-mail for your use and submittal to EPA.

In addition to the Web sites listed above, I've found FWS, NOAA, DNR and state agency personnel to be friendly, knowledgeable and extremely helpful in assisting me while navigating the Web sites. They've also provided important regional information, such as migration seasons. From my experience, they're just happy to have one more person helping to save our valuable and limited species and their habitat.

Other resources:

Sharon Kophs is the brownfields program manager for Washington State Community, Trade and Economic Development.