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Consultation Under the Endangered Species Act To help ensure that activities undertaken or authorized by the federal government do not negatively impact fish, wildlife or plants on the endangered species list, or their critical habitat, the Endangered Species Act requires that the U.S. Fish and Wildlife Service and/or National Oceanic and Atmospheric Administration (NOAA) Fisheries be consulted before such activities take place. This is known as "consultation," and is supposed to occur when actions are undertaken on federal lands and when federal approval is needed for permits for private activities. Consultation is initiated when a federal agency or the applicant for a permit contacts the appropriate agency to determine whether or not the proposed activity will impact any listed species or its critical habitat. If no listed species or critical habitat are known to occur within the area then the consultation is concluded. If listed species or their critical habitat are known to occur in the area then the agency proposing the action or issuing the permit must determine how, if at all, the proposed activity may affect them. If the agency or applicant determines that the proposed action is not likely to adversely affect listed species or their critical habitat and the Fish and Wildlife Service and/or NOAA Fisheries agrees then the consultation is concluded. If the agency or applicant proposing the action or approving the permit determines that the activity is likely to adversely impact a listed species or its critical habitat then a request must be made, in writing, to the FWS or NOAA to initiate a formal consultation. Formal consultation begins on the day the request is received. From that point the FWS or NOAA has 90 days to consult with the agency or applicant and 45 days to prepare a "biological opinion," a statement on behalf of the FWS and/or NOAA as to whether or not the proposed activity will jeopardize the listed species or adversely impact its critical habitat. The 90 day consultation period can be extended by mutual agreement between federal agencies, but cannot be extended more than 60 days without the consent of an applicant. If the biological opinion determines that jeopardy or adverse modification will occur the relevant FWS and/or NOAA must propose reasonable and prudent alternative courses of action to the agency or applicant to minimize the anticipated impacts. Up to Top