Section 7 of the Endangered Species Act

Section 7 of the Endangered Species Act
Name	Endangered Species Act Section 7
Enacted by	United States Congress
Enacted	1973
Amended	1982 amendments, 1978 amendments
Summary	Federal interagency consultation to conserve U.S. Fish and Wildlife Service and NOAA Fisheries trust species

Section 7 of the Endangered Species Act Section 7 of the Endangered Species Act establishes federal interagency obligations to ensure actions do not jeopardize listed species or adversely modify critical habitat designated under the Act. It requires consultation between action agencies and the U.S. Fish and Wildlife Service or NOAA Fisheries and produces binding documents such as biological opinions and incidental take statements. The section has been shaped by decisions of the United States Supreme Court, implementation by the United States Department of the Interior, and litigation involving environmental organizations and industry stakeholders.

Purpose and Statutory Text

Section 7 is codified at Title 16 of the United States Code and directs federal agencies to consult to avoid jeopardy to endangered species and adverse modification of critical habitat designated under the Endangered Species Act of 1973. The statutory text mandates that agencies shall use the best scientific and commercial data available and confer with the National Marine Sanctuary Program, NOAA, and the Smithsonian Institution when appropriate. It authorizes the Secretary of the Interior and the Secretary of Commerce to develop regulations, and it interacts with statutes such as the National Environmental Policy Act and the Federal Power Act.

Consultation Process (Formal and Informal)

Consultation under Section 7 proceeds through informal consultation and formal consultation tracks that involve the U.S. Fish and Wildlife Service or National Marine Fisheries Service. Informal consultation often begins when an action agency, such as the Bureau of Land Management or the United States Army Corps of Engineers, initiates coordination with the Services and may involve the Environmental Protection Agency or the National Park Service. If informal consultation does not resolve species impacts, the Services issue a biological opinion after formal consultation triggered by a request for consultation or a reinitiation of consultation following new information, changed circumstances, or completion of discretionary actions.

Biological Opinions and Incidental Take Statements

A biological opinion, prepared by the U.S. Fish and Wildlife Service or NOAA Fisheries, evaluates whether a proposed federal action is likely to jeopardize the continued existence of listed species or result in adverse modification of critical habitat. Opinions often include a jeopardy determination or a no jeopardy determination and are informed by data from institutions like the United States Geological Survey and the National Oceanic and Atmospheric Administration. If a no jeopardy opinion anticipates unavoidable take, the Services issue an incidental take statement specifying amount and mitigation measures and establishing reasonable and prudent measures enforceable against action agencies such as the Federal Highway Administration and the Bonneville Power Administration.

Interagency Responsibilities and Roles

Section 7 creates specific duties for action agencies (e.g., Department of Defense, Department of Transportation), consulting agencies (U.S. Fish and Wildlife Service, NOAA Fisheries), and umbrella entities like the Council on Environmental Quality. Action agencies must utilize the best scientific data and consult early with the Services; the Services must base opinions on the best scientific and commercial data available and coordinate with other federal programs such as the Federal Energy Regulatory Commission and the National Marine Fisheries Service’s regional offices. Cooperative agreements and programmatic consultations have involved parties such as the Tennessee Valley Authority, the Bureau of Reclamation, and state wildlife agencies.

Implementation, Enforcement, and Litigation

Implementation of Section 7 has been heavily shaped by litigation in federal courts including the United States Supreme Court and multiple United States Courts of Appeals decisions interpreting terms like “jeopardize” and “adverse modification.” Notable cases have involved the Tennessee Valley Authority, the Bureau of Reclamation, and federal projects challenged by conservation groups such as Sierra Club, Defenders of Wildlife, and Center for Biological Diversity. Enforcement actions have led to injunctions, reinitiations of consultation, and settlement agreements requiring corrective measures for projects administered by agencies including the Federal Aviation Administration and the United States Army Corps of Engineers.

Regulatory Guidance and Policy Changes

Regulatory guidance and policy directives from the Department of the Interior, Department of Commerce, and the Council on Environmental Quality have refined consultation procedures, criteria for biological opinions, and standards for incidental take. Administrative rulemakings and memoranda have responded to statutory amendments, decisions from the United States Court of Appeals for the District of Columbia Circuit, and executive actions from Administrations that engaged agencies like the White House and the Office of Management and Budget. Guidance documents, interagency memoranda, and programmatic consultations have involved stakeholders such as American Petroleum Institute, National Association of Counties, and conservation entities, reflecting evolving interpretations of critical habitat, surrogate species, and climate-related stressors.

Category:United States environmental law