Informal Consultation - optional process between the USFWS and the lead agency or representative to determine whether a formal consultation is needed. Also includes discussions or suggestions by USFWS for mitigation measures to negate adverse effects to threatened and endangered species.
Formal Consultation - the process commences with a federal agency's written request for consultation under Section 7 (a)(2) of the FESA, and concludes with the USFWS issuing a biological opinion under Section 7 (b)(3) of the FESA. A formal consultation is needed if an agency has determined, through a biological assessment or through an informal consultation, that the action will affect either an endangered species or critical habitat.
Biological Opinion - a biological opinion includes: (1) a summary of the information on which the opinion is based; (2) a detailed discussion of the effects of the action on listed species or critical habitat; and (3) the USFWS opinion on whether the action is likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of critical habitat.
If an incidental take is anticipated during the proposed action and will not violate Section 7 (a)(2) of the FESA, the biological opinion may include an incidental take statement that specifies (1) the amount or extent of such taking; (2) reasonable and prudent measures that the USFWS considers necessary or appropriate to minimize such taking; (3) the terms and conditions of the incidental take; and (4) procedures to handle or dispose of any individuals of a species actually taken. A biological opinion may also include discretionary conservation recommendations that, if implemented, will minimize or avoid adverse effects to the subject species.
Whether formal consultation is required for a project is determined by the"may affect" standard. The lead federal agency is required to review its actions at the earliest time possible and determine whether they are likely to affect listed species or critical habitat. If such a determination is made, formal consultation is required. If the lead federal agency determines, through a biological assessment or informal consultation, that the action is not likely to affect listed species or critical habitat, formal consultation is not required.
Under the implementing regulations, a formal consultation must conclude within 90 days after its initiation, unless an extension that is mutually agreeable to the USFWS, the lead federal agency, and the applicant, if any, is requested. The implementing regulations allow an additional 45 days for the USFWS to render its biological opinion. The policy of USFWS Region 1, which includes California, is to complete consultation and render a biological opinion within 90 days, when possible.
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