Endangered Species Act (ESA)
Congress passed the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.) in 1973 to conserve endangered and threatened species and their habitat. There are approximately 1,930 species listed under the ESA, which are found in part or entirely in the United States and its waters. The National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS) and the Department of the Interior’s U.S. Fish and Wildlife Service (USFWS) share responsibility for implementing the ESA, with NMFS generally managing marine and anadromous species and USFWS managing land and freshwater species.
Section 7 of the ESA mandates that BOEM and all other Federal Agencies consult with the Secretary of Commerce (via NMFS) and/or Interior (via USFWS) to insure that any “agency action” is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of an endangered or threatened species’ critical habitat.
The consultation process begins when BOEM provides NMFS and/or USFWS with details on the proposed activity, the ESA-listed species and designated critical habitat in the area, the best available information on effects to species and habitat from the proposed action, and measures which will be required by BOEM to reduce or eliminate the potential for effects to occur (e.g., mitigation and monitoring measures). Formal consultation will occur for any activity which BOEM , NMFS, or USFWS determine may adversely affect listed species or designated critical habitat. The consultation process ends with the issuance of a biological opinion by NMFS and/or USFWS. This opinion documents whether the action BOEM proposes to authorize is likely to jeopardize listed species or adversely modify critical habitat. It may also provide an exemption for the taking of listed species and may outline measures deemed necessary to minimize impacts.
After completion of the consultation process, BOEM will determine whether to issue an authorization for the proposed activity. If issued, BOEM will require the implementation of needed mitigation measures identified during the consultation process in addition to monitoring measures meant to detect taking or adverse effects; BOEM will also evaluate the effectiveness of these mitigation and monitoring measures to reduce effects.