Federal Transit Administration’s Endangered Species Compliance Process

Scope

The FTA, in consultation with FWS or NMFS, must ensure that no federally funded mass transportation projects will jeopardize the continued existence of any listed species, or result in the destruction or adverse modification of critical habitat. During project scoping, FWS and NMFS should be contacted for information about listed species that may be present.

Regulatory citations

• 50 CFR 402 — Interagency Cooperation—Endangered Species Act
• 50 CFR 451 – Application Procedure

Key definitions

• Action: All activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to:
  • Actions intended to conserve listed species or their habitat;
  • The promulgation of regulations;
  • The granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid;
  • Actions directly or indirectly causing modifications to the land, water, or air.
• Biological opinion: The document that states the opinion of the Service as to whether or not the Federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.
• Critical habitat: An area designated as critical habitat listed in 50 CFR Parts 17 or 226.
• Formal consultation: A process between the Service and the Federal agency that commences with the Federal agency’s written request for consultation under section 7(a)(2) of the Act and concludes with the Service’s issuance of the biological opinion under section 7(b)(3) of the Act.

Summary of requirements

The FTA must ensure that no federally funded mass transportation projects will jeopardize the continued existence of any listed species, or result in the destruction or adverse modification of critical habitat. The FTA must consult with the FWS or NMFS for transportation projects with a federal action.

Section 7 process

All Federal agencies must consult with the appropriate Service when any activity permitted, funded or conducted by that agency may affect a listed species or designated critical habitat, or is likely to jeopardize proposed species or adversely modify proposed critical habitat. The Service conducts several types of consultations on Federal agency activities, including informal or formal consultations for listed species or designated critical habitats, and informal or formal conferences for proposed species or proposed critical habitats. Section 50 CFR 402 establishes requirements for the consultation process.

Informal consultation

Informal consultation precedes formal consultation, and usually begins with a request to FWS or NMFS for information on endangered species in the project area. Discussions during this phase may include whether and which species may occur in the proposed action area and what effect the action may have on listed species or critical habitats. Informal consultation often concludes with the Service’s written concurrence with the Federal agency’s determination that its action is not likely to adversely affect listed species or their critical habitat, i.e., an exception to formal consultation.

If listed or proposed species, or critical habitat is identified as potentially being present within the project area, a biological assessment (as defined in the Section 7 regulations) must be conducted to identify probable locations of listed species and its habitat. The results of the biological assessment should be included in the Draft Environmental Impact Statement (EIS) or Environmental Assessment (EA) and submitted to FWS or NMFS as part of the informal consultation process. If the biological assessment indicates that no listed or proposed species or critical habitat will be adversely affected, the consultation process is terminated after review by the FWS.

Formal consultation

If the biological assessment concludes that the action would cause adverse effects, FTA must initiate a formal consultation process. Section 7 specifies the information that must be included in FTA’s request for formal consultation. The FWS or NMFS will issue, after receipt of the required information, a biological opinion on whether the action is or is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. If the opinion states that the action is not likely to jeopardize a listed species or destroy, or adversely modify critical habitat, the consultation process is terminated with the issuance of the opinion. The opinion may include conservation recommendations. If a jeopardy biological opinion is issued, it will include reasonable and prudent alternatives and conservation recommendations, if any. The biological opinion should be stated in the Final EIS or EA.

When a jeopardy opinion is issued, the formal regulatory process is terminated when FTA submits its final decision on the project to FWS or NMFS. While not required, it is strongly encouraged that consultation should continue. If FTA determines that it cannot comply with the Section 7 requirements after consultation, it may apply for an exemption following procedures outlined in 50 CFR 451, known in legal terms as a taking.