• Formal Section 7 consultation could take as long as 90 days, after which the USFWS will compose a biological opinion.
• Section 7 requires that federal agencies ensure that their actions do not end in the destruction or negative change of critical habitat.

Section 7 of the Endangered Species Act (ESA), called Interagency Cooperation, is the tool by which federal agencies ensure the steps they take, including those they finance or permit, do not harm the ongoing lives of any listed species.

Informal consultation

Under Section 7, federal agencies need to confer with the U.S. Fish and Wildlife Service (USFWS) when any activity the agency performs, finances, or allows (such as through a permit) may impact a listed endangered or threatened species or assigned critical habitat. In the beginning steps of project planning, federal agencies can request technical aid from USFWS. Conversations between the two agencies may include what kinds of listed species could be present in the suggested action location, and what impact the suggested activity could have on those species.

Formal consultation

When a federal agency concludes, through a biological assessment or other type of review, that its activity is likely to negatively impact a listed species, the agency submits a request for formal consultation to the USFWS. USFWS and the agency share details during formal consultation about the suggested project and the species or critical habitat likely to be impacted. Formal consultation could take as long as 90 days. After this time, the USFWS will compose a biological opinion. The result of the biological opinion will explain whether the federal agency has guaranteed that its activity is not likely to risk the ongoing livelihood of a listed species and/or cause the destruction or negative change of critical habitats. USFWS has 45 days after wrapping up a formal consultation to construct the opinion.

To get to a decision in its biological opinion, USFWS starts by checking out the present status of the species. It then weighs the likely outcomes of the suggested federal activity. It also considers any impacts to the species or critical habitat of non-federal activity that are most likely to happen in the activity location.

Critical habitat destruction or modification

Section 7 requires that federal agencies ensure that their actions do not end in the destruction or negative change of critical habitat. Destruction or negative change means a direct or indirect adjustment that worsens the critical habitat altogether for the conservation of a listed species.

Alternatives and incidental take

When a federal agency fails to guarantee that activities are unlikely to avoid risking damage to listed species or cause the destruction or negative change of critical habitat, it could give sensible alternative activities. Alternatives must:

• Be in line with the purpose of the suggested project;
• Be in line with the federal agency’s legal authority;
• Be financially and technically practical; and
• In the opinion of the USFWS, avoid the chance of harming the ongoing livelihood of listed species or the destruction or negative change of critical habitat.

Usually, an activity is most likely to end in the incidental take of a species but is not likely to risk its ongoing livelihood. When this takes place, the USWFS gives the federal agency an incidental take statement with the biological opinion. The anticipated incidental take is not subject to the take banning of the ESA if the federal agency or applicant carries out the terms and conditions outlined in the incidental take statement.