consult with the Services to ensure “that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical habitat] of such species” [16 U.S.C. § 1536 (a)(2)]. The phrase “jeopardize the continued existence of [a listed species]” means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species” [50 CFR § 402.02].
Any proposed federal agency action that “may affect” listed species is subject to ESA Section 7 and could require a formal consultation (see Figure 1-1). The term “may affect” is defined broadly to include beneficial and adverse effects. For any action that “may affect” listed species, the action agency has two options: it may choose to initiate formal consultation or may determine whether the action is “likely to adversely affect” listed species. If the action agency determines, with written concurrence of FWS or NMFS, that the action is “not likely to adversely affect” a listed species or its critical habitat, no further consultation is required. However, if the action agency determines that the action is “likely to adversely affect” a listed species or its critical habitat, formal consultation is required. Through the formal consultation process, FWS or NMFS determines whether the proposed federal agency action is likely to jeopardize listed species; if so, FWS or NMFS will develop “reasonable and prudent alternatives” (RPAs) that, if implemented, are expected to avoid jeopardy. It is at the action agency’s discretion whether to adopt the RPAs. However, the agency will be liable under Section 9 if a take results from its action and the take was not provided for by an incidental take statement (ITS) in the BiOp, the final document issued by FWS or NMFS. An ITS describes actions that will not be considered prohibited takes and describes “reasonable and prudent measures” that must be complied with to be covered by the ITS.
Unlike FIFRA and its implementing regulations, the ESA does not prescribe specific studies that must be conducted or specific data that must be collected or submitted in the consultation process. Instead, in several provisions of the ESA, Congress has directed the Services to make determinations based on the “best scientific and commercial data available.” Similarly, the Services’ rules on consultation state that
the Federal agency requesting formal consultation shall provide the Service with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat. This information may include the results of studies or surveys conducted by the Federal agency or the designated non-Federal representative. The Federal agency shall provide any applicant with the opportunity to submit information for consideration during the consultation [50 C.F.R. 402.14(d)].