Biological assessments to facilitate wildlife permitting for energy projects
When and why a biological assessment is needed when permitting an energy project
The Endangered Species Act (ESA) is a federal law that protects endangered and threatened species (listed species) from illegal take. Section 7 of the ESA requires federal agencies to consider whether their actions may affect listed or proposed ESA-protected species or their critical habitat. Select actions of a federal agency, such as federal funding, a federal permit, or use of federal lands, trigger a federal nexus, which requires Section 7 consultation if any listed species will be affected by the action.
Depending on a project's effects on listed species or critical habitat, informal or formal consultation with the US Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) may be necessary. Informal consultation helps determine whether formal consultation is required. Informal consultation is also used to request concurrence with a “may affect, not likely to adversely affect” or “no effect” determination (explained below). Formal consultation is required when the federal action “may affect, likely to adversely affect” a listed species or critical habitat. Under formal consultation, the USFWS/NMFS prepares a Biological Opinion of the Biological Assessment, detailing the effects of the proposed action. In practice, most Section 7 consultations occur through the informal consultation process.
What is a Biological Assessment (BA)?
A biological assessment is required whenever the action of a federal agency could affect listed species and those species’ critical habitats. The primary purpose of a biological assessment is to document a federal agency’s conclusions and provide supporting information regarding the effects of their proposed actions on listed species and their critical habitats. It is recommended to prepare a separate Biological Assessment instead of an analysis in an existing NEPA document (EA or EIS).
A Biological Assessment should not document species covered under other laws, including the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act. Non-ESA-listed species are covered in other NEPA documents, such as Environmental Assessments, Environmental Impact Statements, and Categorical Exclusions.
Biological Assessments are public documents and may be read by non-biologists. When possible, avoid using jargon and define all acronyms so that non-technical audiences understand the document.
How to Write a Biological Assessment
Before writing a Biological Assessment, a site visit is helpful to understand the baseline site conditions and how the project will impact those conditions. Obtain a list of potentially affected species by making a formal request to the local USFWS/NMFS office. For many areas, this can be done online using the IPaC tool. Based on the site visit and list of potentially impacted species, a biologist can determine if the Biological Assessment needs additional fieldwork. Biological Assessments from other nearby, similar projects are also helpful for content ideas when writing.
The IPaC site helps determine the listed species for a project area.
What Content is Included in a Biological Assessment?
Biological Assessments should have the following sections to provide all the information for the USFWS/NMFS to review:
- Introduction: include the statement of purpose and summarize the proposed action. If applicable, include the federal action (e.g., issue take permit) and the applicant’s action (e.g., build wind facility).
- Project description: describe the project action, where the project is located, when the action will occur, who is doing the action, and how the action will be completed (i.e., construction and operations process). Divide the description into the various project phases, including construction, operations and maintenance, and decommissioning. Include relevant maps and any conservation measures that will be included in the design. Provide as many details as possible since the USFWS/NMFS will likely be unfamiliar with your proposed action or the action area.
- Action Area: define the action area, which includes all areas that the Federal action may affect directly or indirectly. The action area includes all the areas affected by the action, including construction, operations and maintenance, and decommissioning.
- Listed Species and Critical Habitat Present: identify all listed species that may be present, including candidate species, habitat conditions, and current populations. Also, describe all the habitats and critical habitat for each listed species.
- Effects Analysis: For listed species or critical habitat present or likely to be present, review the literature, determine the effects of the proposed action, and document the rationale for the conclusion. Effects must consider not only the construction of the project but also the effects of the project’s operation. Describe the expected response of the species to the proposed action. Any fieldwork should be provided as supporting information.
- Cumulative effects: Address other activities unrelated to the project that could affect listed species and their critical habitats. This section is typically done if there is a likely to adversely affect determination (see below).
- Conclusion and Determination of Effects: For each listed species or critical habitat, provide a Section 7 determination and include the accompanying rationale. Effects on the listed species should use one of the following three determinations:
- No effect: no positive or negative impacts on a listed species or critical habitat. No concurrence from USFWS or NMFS is required in this case.
- May affect, but not likely to adversely affect: means that all effects would be beneficial, insignificant, or discountable. With this determination, concurrence should be requested from the USFWS/NMFS when the Biological Assessment is submitted; formal consultation is unnecessary.
- Beneficial effects are positive for the species.
- Insignificant effects refer to effects that are undetectable, unmeasurable, or can’t be evaluated.
- Discountable effects are extremely unlikely to occur.
- Likely to adversely affect: means that listed species are likely to be negatively impacted by the proposed action. If this determination occurs, a cumulative effects analysis for the species should be included. Formal consultation from the USFWS or NMFS will be required for this determination.
How to Submit a Biological Assessment
The lead federal agency for a project should submit the Biological Assessment to the USFWS/NMFS. The lead agency should include a cover letter summarizing the project, species, critical habitat present, and effects determinations for those species and request a specific action from USFWS/NMFS, such as concurrence or formal consultation. The document package should be submitted to the local USFWS/NMFS office near the action area.
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