(C) The Chairman of the Council of Economic Advisors. DATES: This final rule … Section 4, among other things, deals with adding species to or removing species from ESA protection and designating critical habitat; section 7 covers consultations with other federal agencies. Where appropriate, these Opinions provide an exemption for the “take” of listed species (e.g., harassment, harm, pursuit, hunting, shooting, wounding, killing, trapping, capturing, or collecting) while specifying the extent of take allowed, the reasonable and prudent measures that would minimize impacts from the federal action, and the terms and conditions with which the federal action agency must comply. Discussions between the two agencies may include what types of listed species may occu… The denial of an application under subparagraph (B) shall be considered final agency action for purposes of chapter 7 of title 5, United States Code. 1531 et seq.. Action means 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. (B) The Secretary of the Interior shall be the Chairman of the Committee. (k) SPECIAL PROVISIONS.—An exemption decision by the Committee under this section shall not be a major Federal action for purposes of the National Environ mental Policy Act of 1969 (42 U.S.C. (i) REVIEW BY SECRETARY OF STATE.—Notwithstanding any other provision of this Act, the Committee shall be prohibited from considering for exemption any application made to it, if the Secretary of State, after a review of the proposed agency action and its potential implications, and after hearing, certifies, in writing, to the Committee within 60 days of any application made under this section that the granting of any such exemption and the carrying out of such action would be in violation of an international treaty obligation or other international obligation of the United States. (3) The Secretary shall within 20 days after the receipt of an application for exemption, or within such other period of time as is mutually agreeable to the exemption applicant and the Secretary— (A) determine that the Federal agency concerned and the exemption applicant have— (i) carried out the consultation responsibilities described in subsection (a) in good faith and made a reasonable and responsible effort to develop andfairly consider modifications or reasonable and prudent alternatives to the proposed agency action which would not violate subsection (a)(2); (ii) conducted any biological assessment required by subsection (c); and (iii) to the extent determinable within the time provided herein, refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d); or (B) deny the application for exemption because the Federal agency concerned or the exemption applicant have not met the requirements set forth in subparagraph (A)(i), (ii), and (iii). The revisions are intended to clarify, interpret, and implement the consultation procedures for section 7 … (8) In carrying out its duties under this section, the Committee may promulgate and amend such rules, regulations, and procedures, and issue and amend such orders as it deems necessary. (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS. 1 Regional Biological Opinion on Hopper Dredging of Navigational Channels and Borrow Areas in the Gulf of Mexico (PDF, pages 28), Regional Biological Opinion on Hopper Dredging of Navigational Channels and Borrow Areas in the Gulf of Mexico (PDF, pages 128), Appendix A: Avoidance of Effects of Select Restoration Activities Eligible for Streamlined Project-Level Consultation through Implementation of Specified Project, The 2020 SARBO was revised July 31, 2020, and all future projects covered under SARBO 2020 will be required to adhere to the PDCs as modified. For the best experience, please use a modern browser such as Chrome, Firefox, or Edge. Notwithstanding any other provision of this section, the Committee shall accept the determinations of the President under this subsection. Any applicant may request the Secretary to carry out such mitigation and enhancement measures. (B) Consultation under subsection (a)(3), and an opinion issued by the Secretary incident to such consultation, regarding an agency action shall be treated respectively as a consultation under subsection (a)(2), and as an opinion issued after consultation under such subsection, regarding that action if the Secretary reviews the action before it is commenced by the Federal agency and finds, and notifies such agency, that no significant changes have been made with respect to the action and that no significant change has occurred regarding the information used during the initial consultation. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act. 4 (h) EXEMPTION.—(1) The Committee shall make a final determination whether or not to grant an exemption within 30 days after receiving the report of the Secretary pursuant to subsection (g)(5). proposed changes to the regulations that implement Section 7 of the Endangered Species Act.1 Section 7 consultation is the key check-and-balance on federal agency actions to ensure that those actions do not (1) jeopardize species’ survival and recovery and (2) destroy or degrade critical habitat. Regulations at 50 CFR 402.04 provide that “the consultation procedures may be superseded for a particular Federal agency by joint counterpart regulations among that agency, the Fish and Wildlife Service, and the National Marine Fisheries Service.” The preamble to the 1986 regulations for implementing section 7 of the ESA states that “such counterpart regulations must retain the overall degree of protection afforded listed species required by the [ESA] and these regulations. Cooperation with the States, Sec. The Committee shall grant an exemption from the requirements of subsection (a)(2) for an agency action if, by a vote of not less than five of its members voting in person— (A) it determines on the record, based on the report of the Secretary, the record of the hearing held under subsection (g)(4) and on such other testimony or evidence as it may receive, that— (i) there are no reasonable and prudent alternatives to the agency action; (ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action is in the public interest; (iii) the action is of regional or national significance; and (iv) neither the Federal agency concerned nor the exemption applicant made any irreversible or irretrievable commitment of resources prohibited by subsection (d); and (B) it establishes such reasonable mitigation and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat acquisition and improvement, as are necessary and appropriate to minimize the adverse effects of the agency action upon the endangered species, threatened species, or critical habitat concerned. Any such biological assessment must, however, be conducted in cooperation with the Secretary and under the supervision of the appropriate Federal agency. Background: The ESA Section 7 CRs provide an optional alternative to the standard section 7 consultation process, and were developed specifically for agency projects that authorize, fund, or carry out actions that support the National Fire Plan (NFP). (3)(A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a), the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat. The costs incurred by the Secretary in carrying out any such measures shall be paid by the applicant receiving the exemption. Annual cost analysis by the Fish and Wildlife Service, Information for Planning and Consultation (IPaC). (2) The applicant receiving such exemption shall include the costs of such mitigation and enhancement measures within the overall costs of continuing the proposed action. Such regulations shall require that information submitted in an application by the head of any Federal agency with respect to any agency action include, but not be limited to — (1) a description of the consultation process carried out pursuant to subsection (a)(2) of this section between the head of the Federal agency and the Secretary; and (2) a statement describing why such action cannot be altered or modified to conform with the requirements of subsection (a)(2) of this section. ESA Section 7 regulations have long established a 135-day time frame for completing formal consultations. (n) JUDICIAL REVIEW. 8a (6) To the extent practicable within the time required for action under subsection (g) of this section, and except to the extent inconsistent with the requirements of this section, the consideration of any application for an exemption under this section and the conduct of any hearing under this subsection shall be in accordance with sections 554, 555, and 556 (other than subsection (b)(3) of section 556) of title 5, United States Code. ): Provided, That an environmental impact statement which discusses the impacts upon endangered species or threatened species or their critical habitats shall have been previously prepared with respect to any agency action exempted by such order. Environmental Conservation Online System (ECOS), Candidate Conservation Agreements with Assurances, Information, Planning and Conservation System (IPaC), Recovery Online Activity Reporting System (ROAR), Endangered Species Regulations and Policies, brief presentation about this section of the Act, Sec. You can view the entire contents of each section of the Endangered Species Act of 1973, as amended through the 108th Congress, by clicking on a section title below that corresponds with your interest. Section 7 Consultation Technical Assistance Glossary of Terms See the Code of Federal Regulations for a full set of section 7 regulatory definitions. Marine Mammal Protection Act of 1972, Sec. (2) Consultation under subsection (a)(3) shall be concluded within such period as is agreeable to the Secretary, the Federal agency, and the applicant concerned. (m) NOTICE.—The 60-day notice requirement of section 11(g) of this Act shall not apply with respect to review of any final determination of the Committee under subsection (h) of this section granting an exemption from the requirements of subsection (a)(2) of this section. (c) BIOLOGICAL ASSESSMENT.—(1) To facilitate compliance with the requirements of subsection (a)(2), each Federal agency shall, with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on the date of enactment of the Endangered Species Act Amendments of 1978, request of the Secretary information whether any species which is listed or proposed to be listed may be present in the area of such proposed action. SEC. If the Secretary advises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action. 7. The changes finalized today by Interior’s U.S. Section 7 of the Endangered Species Act requires federal agencies to ensure that actions they authorize, fund, or carry out do not jeopardize the existence of any species listed under the ESA, or destroy or adversely modify designated critical habitat of any listed species. Reg. chapter iv. (a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.—(1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. These federal agency consultations are designed to help federal agencies in fulfilling their duty to ensure that their actions do not jeopardize the continued existence of a species, or destroy or adversely modify designated critical habitat. on September 23, 2020, Stay informed of all the latest regional news around NOAA Fisheries, Endangered Species Act Section 7 Biological Opinions in the Southeast, 20 Memorable Marine Stories, Videos, and Photos of 2020. Under Section 7 of the Endangered Species Act, federal agencies must consult with NOAA Fisheries on activities that may affect ESA-listed species. Authorization of appropriations, Sec. The benefit is for people who have a health condition or disability which limits their capability to work. Beveridge & Diamond’s Endangered Species and Wildlife Protection practice group provides strategic counseling and compliance advice to project and product proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities. All necessary mitigation and enhancement measures shall be authorized prior to the implementing of the agency action and funded concurrently with all other project features. In 2019, the Service and NOAA Fisheries jointly finalized revisions to regulations governing sections 4 and 7 of the ESA. Such assessment may be undertaken as part of a Federal agency’s compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. Now, informal consultations too will … Section 7 of the ESA requires federal agencies to ensure that any action authorized, funded, or carried out by the respectiveagency is New Pilot Project Offers Quick Answers About Important Consultations, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Report a Stranded or Injured Marine Animal, The Environmental Consultation System (ECO), Revision No. (7) Upon request of the Secretary, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the Secretary to assist him in carrying out his duties under this section. (E) The Secretary of the Interior. 15 Such a report shall be submitted annually until all such mitigation and enhancement measures have been completed. to be a prohibited taking of the species concerned. (2)(A) Except as provided in subparagraph (B), an exemption for an agency action granted under paragraph (1) shall constitute a permanent exemption with respect to all endangered or threatened species for the purposes of completing such agency action— (i) regardless whether the species was identified in the biological assessment; and (ii) only if a biological assessment has been conducted under subsection (c) with respect to such agency action. Upon request of the Chairman of the Committee, the head of such Federal agency shall furnish such information to the Committee. (1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. Part 402 that implement section 7(a)(2) of the ESA (84 Fed. 18 This paragraph does not require a limitation on the commitment of resources as described in subsection (d). 17 South Atlantic Regional Biological Opinion for Dredging and Material Placement Activities in the Southeast United States (2020 SARBO) (PDF, 653 pages), Biological Opinion on the Regional General Permit SAJ-82 (SAJ-2007-1590), Florida Keys, Monroe County, Florida (PDF, 166 pages), Programmatic Biological Opinion on 10 Categories of Minor In-Water Activities Occurring in Florida and the U.S. Caribbean - JAXBO (PDF, 334 pages), Revision No. Notice of the public availability of such reports shall be published in the Federal Register by the Council on Environmental Quality. The Secretary of State shall, at the time of such certification, publish a copy thereof in the Federal Register. The ESA prohibits any take of species listed as endangered, but some take of threatened species that does not interfere with survival and recovery may be allowed. Attorneys designated by the Endangered Species Committee may appear for, and represent the Committee in any action for review under this subsection. The Environmental Consultation System (ECO) is available to search ESA section 7 consultations from 2017 to present. The applicant for an exemption shall be referred to as the “exemption applicant” in this section. In a victory for NAHB, the Trump administration today released final rules updating the Endangered Species Act (ESA) Section 7 Consultation requirements and new regulations governing the designation of critical habitat that will improve the overall efficiency of the ESA’s permitting process and make compliance less onerous for home builders and developers. If you are looking for information on consultations completed before 2019 that is not available in ECO, you may send an email with specific details on your information request to [email protected] Findings, purposes, and policy, Sec. (2)(A) An exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection (f), not later than 90 days after the completion of the consultation process; except that, in the case of any agency action involving a permit or license applicant, such application shall be submitted not later than 90 days after the date on which the Federal agency concerned takes final agency action with respect to the issuance of the permit or license. Act means the Endangered Species Act of 1973, as amended, 16 U.S.C. The prohibitions set forth in ESA Section 9 expressly apply only to species listed as endangered under the Act, as opposed to threatened. (4) Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 4 or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. (3) The Committee shall be composed of seven members as follows: (A) The Secretary of Agriculture. (f) REGULATIONS.—Not later than 90 days after the date of enactment of the Endangered Species Act Amendments of 1978, the Secretary shall promulgate regulations which set forth the form and manner in which applications for exemption shall be submitted to the Secretary and the information to be contained in such applications. (C) The Committee shall meet at the call of the Chairman or five of its members. 2 Regional Biological Opinion on Hopper Dredging of Navigational Channels and Borrow Areas in the Gulf of Mexico - GRBO (PDF, 19 pages), Programmatic Biological Opinion on a Modification of the USACE Jacksonville District's Programmatic General Permit for Live Rock and Marine Shellfish Aquaculture in Florida State Waters (PDF, 61 pages), Framework Biological Opinion on Deepwater Horizon Oil Spill Final Programmatic Damage Assessment and Restoration Plan and Final Programmatic Environmental Impact Statement (PDF, pages 414), Biological Opinion on the Continued Authorization and Implementation of National Marine Fisheries Service' s Integrated Fisheries Independent Monitoring Activities (PDF, 428 pages), Biological Opinion on the Continued Implementation of the Sea Turtle Conservation Regulations under the ESA and the Continued Authorization of the Southeast U.S. Shrimp Fisheries in Federal Waters under the Magnuson-Stevens Fishery Management Conservation Act (PDF, 346 pages), Biological Opinion on the Continued Authorization of the Fishery Management Plan for Coastal Migratory Pelagic Resources in the Atlantic and Gulf of Mexico under the Magnuson-Stevens Fishery Management and Conservation Act (PDF, 226 pages). revise portions of our regulations that implement section 7 of the Endangered Species Act of 1973, as amended (‘‘Act’’). (C) Subject to the Privacy Act, the Committee may secure directly from any Federal agency information necessary to enable it to carry out its duties under this section. (p) EXEMPTIONS IN PRESIDENTIALLY DECLARED DISASTER AREAS.—In any area which has been declared by the President to be a major disaster area under the Disaster Relief and Emergency Assistance Act, the President is authorized to make the determinations required by subsections (g) and (h) of this section for any project for the repair or replacement of a public facility substantially as it existed prior to the disaster under section 405 or 406 of the Disaster Relief and Emergency Assistance Act, and which the President determines (1) is necessary to prevent the recurrence of such a natural disaster and to reduce the potential loss of human life, and (2) to involve an emergency situation which does not allow the ordinary procedures of this section to be followed. Section 4(d) of the Endangered Species Act (ESA) directs NOAA Fisheries to issue regulations necessary to conserve species listed as threatened. (4) If the Secretary determines that the Federal agency concerned and the exemption applicant have met the requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with the Members of the Committee, hold a hearing on the application for exemption in accordance with sections 554, 555, and 556 (other than subsection (b)(1) and (2) thereof) of title 5, United States Code, and prepare the report to be submitted pursuant to paragraph (5). An application for an exemption shall be considered initially by the Secretary in the manner provided for in this subsection, and shall be considered by the Committee for a final determination under subsection (h) after a report is made pursuant to paragraph (5). Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. Convention implementation, Sec. The training also includes a module on the Counterpart Regulations, and a comprehensive glossary of … (e)(1) ESTABLISHMENT OF COMMITTEE.—There is established a committee to be known as the Endangered Species Committee (hereinafter in this section referred to as the “Committee”). —Any person, as defined by section 3(13) of this Act, may obtain judicial review, under chapter 7 of title 5 of the United States Code, of any decision of the Endangered Species Committee under subsection (h) in the United States Court of Appeals for (1) any circuit wherein the agency action concerned will be, or is being, carried out, or (2) in any case in which the agency action will be, or is being, carried out outside of any circuit, the District of Columbia, by filing in such court within 90 days after the date of issuance of the decision, a written petition for review. (o) Notwithstanding sections 4(d) and 9(a)(1)(B) and (C), sections 101 and 102 of the Marine Mammal Protection Act of 1972, or any regulation promulgated to implement any such section— (1) any action for which an exemption is granted under subsection (h) shall not be considered to be a taking of any endangered species or threatened species with respect to any activity which is necessary to carry out such action; and (2) any taking that is in compliance with the terms and conditions specified in a written statement provided under subsection (b)(4)(iv) shall not be considered (2) Any person who may wish to apply for an exemption under subsection (g) of this section for that action may conduct a biological assessment to identify any endangered species or threatened species which is likely to be affected by such action. 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