Download Note: when documenting biological conclusions, there are two

Note: when documenting biological conclusions, there are two appropriate
categories - “no effect” and “may affect”. Under the “may affect” category,
there are two sub-categories – “not likely to adversely affect” and “likely to
adversely affect”.
No effect – the appropriate conclusion when the action agency determines its
proposed action will not affect a listed species or designated critical habitat.
May affect – the appropriate conclusion when a proposed action may pose
any effects on listed species or designated critical habitat.
For example, if the analysis of potential effects of a project on a species
results in either an insignificant or discountable affect, the biological
conclusion would read “may affect, not likely to adversely affect.”
For federally listed threatened or endangered animal species (terrestrial or
aquatic): When suitable T&E species habitat is present in the project action area,
then the appropriate determination is “may affect”. If qualified biologists
determine that suitable habitat is present, however, the species themselves are not
present, then the determination should be “may affect, not likely to adversely
affect” the species. In this case, written concurrence from USFWS is required.
(The federal action agency or their designated non-federal representative must
request this concurrence from USFWS. NCDOT is the only non-federal
representative in NC for FHWA.) This correspondence should be included in the
CE documentation.
For federally listed threatened or endangered plant species: First determine if
suitable habitat for the species is in the project area. Next, determine
presence/absence of the species. If detailed surveys for the species occur during
the appropriate time (i.e. flowering period for the species), and the result of the
surveys was that no individuals of the plant were found during the surveys, and its
presence within the project area can be discounted then the biological conclusion
should be “no effect” for this species. If even one plant is identified within the
project area then the biological conclusion is in the “may affect” category. Next,
determine if the project is likely or not likely to adversely affect one individual
plant previously identified. If the answer is no, then the appropriate biological
conclusion is “may affect, not likely to adversely affect”, and written concurrence
from USFWS is required and must be provided in the CE documentation.
In terms of developing a consistent approach toward documenting a “no
effect” conclusion, the following are some screening questions we can ask:
Is it a historic/obscure record?
Additionally, for aquatic species:
Why is the aquatic species listed for the county?
Is the species known to be in one river basin, however, the county is part
of multiple river basins?
Which river basin is our project in?
Is there aquatic connectivity between known populations and our project
area?
Are there any physical barriers (such as dams) between known a
population and our project area which would prevent the species, or host
fish from traveling between the two areas?
Are there other barriers/characteristics (such as elevation differences or
water temperature differences) between a known population and our
project area which would prevent the species, or host fish from traveling
between the two areas?
Do we have documentation from a USFWS biologist (with direct
knowledge of the project and project area) that our project will have “no
effect” on the species?
Conclusion: We must include sufficient information in the analysis to
support the biological conclusion.
Endangered Species Act Compliance Guidance
January 11, 2010
FHWA has not delegated NCDENR/EEP the authority to make threatened and
endangered species’ biological conclusion determinations to USFWS.
Do’s
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Don’ts
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Send USFWS a scoping letter
following template provided.
Include biological conclusions or any other
effects recommendations in the scoping
letter.
Send FHWA a concurrence
request letter for biological
conclusion recommendations
of “may affect, not likely to
adversely affect”, to review
and forward to USFWS.
Request concurrence from USFWS for “no
effect” biological conclusions.