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| Biological Opinion | |
|---|---|
| Name | Biological Opinion |
| Caption | Consultation under the Endangered Species Act |
| Jurisdiction | United States federal law |
| Established | 1973 (Endangered Species Act) |
| Key documents | Endangered Species Act, National Environmental Policy Act, Administrative Procedure Act |
| Responsible authority | United States Fish and Wildlife Service; National Marine Fisheries Service |
Biological Opinion
A biological opinion is a scientific and legal assessment prepared by the United States Fish and Wildlife Service or the National Marine Fisheries Service evaluating whether a proposed federal action is likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat under the Endangered Species Act of 1973. It synthesizes regulatory interpretation, species biology, habitat analysis, and mitigation measures to inform federal agencies such as the Department of the Interior, Department of Commerce, Department of Defense, and agencies like the Federal Highway Administration. Biological opinions often interface with environmental review statutes such as the National Environmental Policy Act and are subject to judicial review under the Administrative Procedure Act.
A biological opinion is produced following formal consultation initiated by a federal agency under section 7 of the Endangered Species Act of 1973, typically involving the United States Fish and Wildlife Service for terrestrial and freshwater taxa and the National Marine Fisheries Service for marine and anadromous species. The product contains a summary of the proposed action, an analysis of effects on listed species and habitats, a conclusion on jeopardy or adverse modification, and, where applicable, an incidental take statement authorizing levels of take consistent with the Endangered Species Act of 1973. Biological opinions have been central to major disputes involving projects by entities such as the Bureau of Land Management, U.S. Army Corps of Engineers, Bureau of Reclamation, and Federal Energy Regulatory Commission.
The statutory and regulatory foundations include the Endangered Species Act of 1973, implementing regulations at 50 C.F.R. part 402, and judicial decisions from the United States Supreme Court and various United States Courts of Appeals. Key cases shaping doctrine include Tennessee Valley Authority v. Hill, which affirmed species protection over federally funded projects, and later rulings interpreting consultation obligations in courts such as the Ninth Circuit Court of Appeals and the D.C. Circuit Court of Appeals. Administrative guidance and memoranda from the Department of the Interior and the National Marine Fisheries Service refine how incidental take statements and reasonable and prudent alternatives are formulated.
Formal consultation begins with a federal agency's request and an effects analysis, often prepared in collaboration with permittees like Pacificorp, Dominion Energy, or the Tennessee Valley Authority. Service biologists integrate field surveys, population viability analyses (PVA), habitat models, demographic data, and peer-reviewed literature from journals such as Science, Nature, and Conservation Biology. Methods include species distribution modeling referencing repositories like the U.S. Geological Survey databases, acoustic telemetry datasets from institutions such as the Scripps Institution of Oceanography, and genetic studies published by groups including the Smithsonian Institution. Risk analyses may cite precedents from litigation involving the Bureau of Land Management and projects like the Klamath Project and Glen Canyon Dam operations.
Biological opinions inform recovery planning by identifying jeopardy thresholds, recommending mitigation measures used by recovery teams convened by the United States Fish and Wildlife Service and the National Marine Fisheries Service, and guiding implementation of recovery actions listed in recovery plans for species such as the California condor, Chinook salmon, Steller sea lion, Florida manatee, and Northern spotted owl. They interact with recovery efforts coordinated by entities like the National Oceanic and Atmospheric Administration and the U.S. Fish and Wildlife Service's recovery offices, and influence conservation financing from programs administered by the U.S. Department of Agriculture and the Fish and Wildlife Service's National Fish Hatchery System.
Biological opinions have been litigated extensively, provoking disputes over adequacy of science, scope of consideration (e.g., cumulative and indirect effects), and limits of agency discretion. Landmark litigation includes challenges to opinions addressing projects by Bonneville Power Administration, California Department of Water Resources, and the Army Corps of Engineers in contexts like the Klamath River Basin and Columbia River Basin. Contested issues involve interpretation of "adverse modification" as in cases before the Supreme Court of the United States and disputes over reliance on adaptive management and best-available-science standards cited in cases from the Ninth Circuit Court of Appeals and the Federal Circuit.
Notable examples include the biological opinions for hydropower operations at Bonneville Dam, which implicated Columbia River salmonid runs and involved the Bonneville Power Administration and the National Marine Fisheries Service; consultation over water allocations in the Klamath Project involving the Bureau of Reclamation and tribal claimants such as the Yurok Tribe and Hoopa Valley Tribe; and opinions addressing wind energy permitting where species of concern included the Indiana bat, Peregrine falcon, and migratory birds under the Migratory Bird Treaty Act enforcement by the U.S. Fish and Wildlife Service. Other high-profile matters involved the Gulf of Mexico fisheries assessments with the National Oceanic and Atmospheric Administration and the Deepwater Horizon aftermath coordination between federal agencies.
Implementation of biological opinions requires coordination among federal action agencies, permitting authorities such as the Federal Energy Regulatory Commission, state wildlife agencies like the California Department of Fish and Wildlife, tribal governments including the Nez Perce Tribe, and non-governmental organizations such as The Nature Conservancy, World Wildlife Fund, and the Center for Biological Diversity. Compliance mechanisms include monitoring plans, adaptive management provisions, and enforcement actions by the Department of Justice when necessary. Oversight and improvements stem from legislative hearings in the United States Congress and audits by the Government Accountability Office.