Threatened and Endangered Species - Federal Process - Project Development

Environmental process | Environmental review | Threatened and Endangered Species - Federal

Threatened and Endangered Species - Federal process

Introduction

The Endangered Species Act of 1973, as amended (Act) is a federal law that instructs all federal departments and agencies to: “...conserve endangered species and threatened species and to utilize their authorities in furtherance of the purposes of this Act.” This language means that they must ensure: “…that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat.” To fulfill these obligations they must use the best scientific and commercial data available.

Due to limitations in staff, time, resources and expertise, federal agencies have the ability to designate a non-federal representative under the Act. The designated staff then has the authority to conduct informal consultations or prepare biological assessments. The non-federal representative must be designated by written notice. According to 50 CFR §402.08 the FHWA has designated OES biologists as the non-federal representative for informal consultations including the preparation of biological assessments. At this time, only the FHWA has officially designated MnDOT Office of Environmental Stewardship (OES) biologists to act on their behalf, which means if the action you are working on is acquiring funds from some federal agency other than FHWA, MnDOT cannot conduct consultations and the responsibility falls on the funding federal agency.

Note: For FHWA actions that require formal consultation, FHWA is the lead and all formal correspondence must be processed through them (OES will provide FHWA with the information necessary to enter into the formal consultation process).

Decision tree

See the following decision tree for the district coordination process.

District coordination process decision tree

Considerations for environmental document preparation

According to the FHWA “The NEPA and the ESA Section 7 processes interact in the early phases of the environmental analysis of a project. The NEPA drives the evaluation of biological resources in the project area concurrent and interdependent with the ESA Section 7 consultation process. Evaluation of impacts to species federally-listed as endangered is required for all levels of NEPA documentation, and the detail of analysis is potentially the same, dependent on the scope of the project, ecological importance and distribution of the affected species, and intensity of potential impacts of the project….”

Use the decision tree above. The first three steps are the same for all classes of action:

Determine if the project is a federal action
Determine if the FHWA is the lead federal agency
Coordinate with the OES contact as necessary

Class I Actions (Environmental Impact Statement (EIS) Projects)

For the Scoping Documents:

Use the decision tree
Identify the federally listed species or designated critical habitat with the project county(ies)
- If necessary, commit to a more detailed analysis during the Draft EIS process (DEIS)

Due to the complexity of the action and any related field evaluations and the potential for impacts to federally listed species and designated habitats, it may not be possible to determine effects prior to DEIS publication. For DEISs:

Carry forward any relevant information that you found during the scoping process
Describe the coordination between among agencies and the steps you will be undertaking in order to come to a determination if you have not already done so
Include (or at least reference) the determination of effect in the Final EIS (FEIS)
Include any official correspondence among agencies as part of the administrative record in the project file

For the FEIS:

Include (or at least reference) the determination of effect if you have not already done so
Describe the steps taken to make this determination in the document
Include any official correspondence among the agencies as part of the administrative record in the project file

The FHWA will not issue the Record of Decision (ROD) until all of the provisions have been met.

Class II Actions (Categorical Exclusion (CATEX) Projects)

For a CATEX:

Use the decision tree
Include (or reference) the determination of effect in the document
Describe the steps taken to make this determination in the document
Include any official correspondence among agencies as part of the administrative record in the project file

Class III Actions (Environmental Assessment (EA) Projects)

Use the decision tree
Describe the coordination between among agencies and the steps you will be undertaking in order to come to a determination if you have not already done so
Describe the steps taken to make this determination in the document
Include any official correspondence among agencies as part of the administrative record in the project file

For the Findings of Fact and Conclusions:

Include (or reference) the determination of effect if you have not already done so in the EA
Describe the steps taken to make this determination in the document
Include any official correspondence among the agencies as part of the administrative record in the project file

The FHWA will not issue the FONSI until all of the provisions have been met.