The Endangered Species Act (ESA) of 1973, as amended, and its implementing regulations were designed to protect and recover species in danger of extinction and the ecosystems that they depend upon. When passed, the ESA spoke specifically to the value - tangible and intangible - of conserving species for future generations. In passing the Act, Congress recognized another key fact that subsequent scientific understanding has only confirmed: the best way to protect species is to conserve their habitat.
Under Section 7 of the ESA, the federal government and each of its agencies have a statutory mandate to use their powers for the conservation of species. Each agency must ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of a listed species in the wild or destroy or adversely modify its critical habitat.
The ESA is jointly administered by the Secretaries of the Interior and Commerce. The U.S. Fish and Wildlife Service (FWS) is responsible for terrestrial and freshwater species and the National Marine Fisheries Service (NMFS) is responsible for marine species and anadromous fish, such as salmon. Collectively referred to as the Services, these offices are responsible for listing species under their authority as threatened or endangered as appropriate. If an agency determines that a proposed action may affect one or more listed species, it must formally consult with the Service office or offices responsible for the affected species.
The environmental review must consider potential impacts of the HUD-assisted project to endangered and threatened species and critical habitats. The review must evaluate potential impacts not only to any listed but also to any proposed endangered or threatened species and critical habitats. This responsibility is cited in environmental procedures at 24 CFR 58.5(e) and 24 CFR 50.4 (e).
Does the project involve any activities that have the potential to affect species or habitats?
The first step in complying with section 7 of the ESA is to determine whether the project includes any activities with the potential to affect any species or habitats. A No Effect determination can be made if none of the activities involved in the project have potential to affect species or habitats. Examples of actions without potential to affect listed species may include: rental assistance, purchasing existing buildings, completing interior renovations to existing buildings, and replacing exterior paint or siding on existing buildings.
Additionally, you may be able to determine that the project will have No Effect on listed species or designated critical habitats based on an applicable letter of understanding, memorandum of agreement, programmatic agreement, or local checklist. Consult your Field Environmental Officer or local HUD office’s environmental guidance website to determine if this option is available in your area.
If you are able to determine based on the types of activities involved in your project that it will have No Effect on listed species or designated critical habitats, the project is in compliance with the ESA. Describe your analysis and conclusions in the environmental review record (ERR), including references to local agreements and checklists if applicable.
If so, are federally listed species or designated critical habitats present in the action area?
To determine whether there are federally listed species or designated critical habitats in the action area, first define the action area. For purposes of the ESA, the “action area” includes all areas that your project will affect either directly, indirectly, and/or cumulatively, and is not merely the immediate area involved in the project. (50 CFR 402.02) Next, obtain a list of protected species from the Services. This information is available through FWS’s online tool, IPaC, on the FWS Website, or you may contact your local FWS and/or NMFS offices directly.
If there are no federally listed species or designated critical habitats in the action area, you may make a determination that the project will have No Effect and is in compliance with the ESA. This finding is appropriate if the species list indicates that there are no listed species in the project area, or if there is no potential habitat in the project area (i.e. the project is urban infill). The ERR should include all documents used to make this determination, including letters from the Services, species lists from the Services’ websites, surveys and/or other documents and analysis showing that there are no species in the action area.
What effects, if any, will the project have on federally listed species or designated critical habitat?
There are three possible determinations: No Effect; May Affect, Not Likely to Adversely Affect; and May Affect, Likely to Adversely Affect.
A No Effect determination can be made if the project has no potential to have any effect on any listed species or designated critical habitats. This finding is appropriate if the project has no potential to affect any species or habitats (see first question) or if there are no federally listed species or designated critical habitats in the action area (see second question). Finally, you may also make a finding of No Effect if you determine, based on any listed species in the area and the specifics of your project, that there are no potential impacts. However, this finding must be based on technically valid information. For example, if there are species present, and a habitat assessment shows that there is no suitable habitat in the project area, then an No Effect finding can be made based on habitat assessment. No Effect projects do not require consultation, but the ERR should include thorough analysis and documentation supporting the determination.
A project May Affect, but is Not Likely to Adversely Affect listed species and/or critical habitats if all potential effects will be beneficial, discountable, or insignificant. A project whose impacts on listed species and/or critical habitats may be greater than beneficial, discountable, or insignificant is considered Likely to Adversely Affect.
Consult with the Services as necessary.
The federal funding agency is responsible for interacting with the Fish and Wildlife Services or the National Marine Fisheries Service (the Services). This may be either HUD itself or a representative of the Responsible Entity’s organization if the review is prepared under 24 CFR Part 58. It is the responsibility of the federal funding agency to make the determination and conduct all consultation. It is not appropriate for a consultant or other non-federal entity to consult directly with the Services, although they may provide information to the federal agency for it to make its determination.
If the project will have No Effect on listed species or critical habitats, there is no need to consult with the Services. The ERR should contain evidence the habitat will not be altered or species be affected (e.g. species list; habitat assessment conducted by a qualified expert; letter from local planning or natural resource departments; contracted study).
If the project May Affect listed species and/or critical habitats, consultation is required. Initiate consultation by preparing a biological evaluation or assessment and sending it to the appropriate Service office or offices with a request for consultation.
Informal consultation is required if the project is found Not Likely to Adversely Affect. The Services may either concur with the finding or find that formal consultation is required. If the Services concur with the finding that the project is Not Likely to Adversely Affect, consultation is complete. The ERR should contain all documentation, including the biological evaluation and concurrence(s).
Formal consultation is required if the project is found Likely to Adversely Affect. Work with the Services to ensure that the project is not likely to jeopardize listed species or destroy or adversely modify critical habitat. Incorporate all appropriate mitigation measures into project plans, and include in the ERR all documentation, including the biological evaluation or assessment and biological option(s) issued by the Services.
The environmental review record should contain one of the following determinations and supporting documentation: