US Fish & Wildlife Service

What is a Section 7 Consultation?

In the world of environmental agencies and environmental permits, I have often found it misunderstood as to the US Fish and Wildlife Service’s (USFWS) role in the process.  With other environmental agencies, such as the Army Corps of Engineers or California Department of Fish & Wildlife, an actual permit is issued for a development that has conditions or mitigation measures that need to be completed.  With USFWS, this agency plays a very critical role in the process but essentially issues no permit.

Section 7 of the Endangered Species Act provides for another federal agency to consult with the USFWS where a situation could impact threatened or endangered species.  As example, a development project may have waterways that fall under the jurisdiction of the Army Corps.  It is under the Army Corps authority to assess and determine whether it should request a Section 7 consultation from USFWS, which is essentially asking USFWS to complete a Biological Assessment of any impacts to threatened or endangered species.  USFWS will deliver a Biological Opinion as to the impacts, if any, and as to what mitigation measures should be considered.

In this example, the Army Corps will receive this Biological Opinion and determine what mitigation measures should be include in the actual permit issued by the Army Corps.  Thus, USFWS is not issuing any permit or mitigation measures directly to a developer, but through the Section 7 process with the Army Corps.

My short and sweet suggestion in this post is that you should make sure you have an experienced and competent environmental consultant on your development team.  It will be extremely valuable in the negotiation process with the Army Corps and USFWS.

We welcome you to share your comments, thoughts, and questions below.

John Kaye has over 30 years experience within the land development and homebuilding industries, having held senior management positions with The Irvine Company, Koll Real Estate Group, and Brookfield Homes. As a developer, John has overseen the land acquisition, entitlements, and development of master planned communities, residential tracts, urban infill sites, and land assemblages. His experience and skill sets include land acquisition, land brokerage, project management, market analysis, finance, and strategic planning.

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