Matt IhnkenU.S. Fish & Wildlife Service

Michigan Ecological Services Field Office

Joel Trick, USFWS

photo courtesy of James Harding, MSU

photo by Dick Dickinson

Main Programs Ecological Services

Endangered Species Contaminants Conservation Planning

Assistance Migratory Birds Refuges Fisheries International Affairs – Law Enforcement

Our mission is to work with others to conserve, protect and enhance fish, wildlife and plants and their habitats for the continuing benefit of the American people.

The Endangered Species ActSection 2: Findings and PurposesSection 3: DefinitionsSection 4: Listing, Critical Habitat Designation,

Recovery, MonitoringSection 5: Land AcquisitionSection 6: Financial Assistance to States and TerritoriesSection 7: The Role of Federal AgenciesSection 8: International CooperationSection 9: Unlawful ActivitiesSection 10: Exceptions, including PermitsSection 11: Penalties and Enforcement

For research and scientific permits - 10(a)(1)(A) recovery permits Apply at least 90 days in advance

For take incidental to an otherwise lawful activity –10(a)(1)(B) – Habitat Conservation Plan (HCP) Long process – many months

Section 7 Consultation Federal agencies must consult with the FWS under

Section 7(a)(2) of ESA if their actions may affect a listed species Formal consultation takes 135 days Private individuals are affected by section 7 when their action

needs a Federal permit or funding.

Section 7 of the ESA charges Federal agencies to: carry out conservation programs for listed species

[section 7(a)(1)];

insure that their activities will not jeopardize the continued existence of listed species or adversely modify designated critical habitats [section 7 (a)(2) - “section 7 consultation” ].

When is section 7 consultation required?

For all actions that are authorized, funded, or carried out by a Federal agency

“Federal nexus”

Informal vs. Formal

Section 7 requires the action agency to make a determination of effects:

No effect May affect, not likely to adversely affect May affect, likely to adversely affect

The proposed action will not affect listed species or designated critical habitat.

Not appropriate for positive or “small” effects.

Does not require concurrence from the Service, but justification/support should be documented for your records.

There are effects, but they will be: Beneficial- contemporaneous positive effects without

any adverse effects. Insignificant- effects with small impacts that should not

result in take; effects cannot be meaningfully measured, detected, or evaluated.

Discountable- effects that are extremely unlikely to occur, or would not be expected to occur.

Requires written concurrence from the Service Concludes informal consultation

The species will be adversely affected by the proposed action.

Beneficial effects do not “cancel out or mitigate” adverse effects.

Triggers formal consultation with the Service.

The process that includes all discussions and correspondence between the Service and a Federal agency to determine whether a proposed Federal action may affect listed species or critical habitat.

Not “off the record” 30-day time frame from concurrence request

A process between the Service and a Federal agency or applicant that determines whether a proposed Federal action is likely to jeopardizethe continued existence of listed species or destroy or adversely modify designated critical habitat.

Required for actions that are “likely to adversely affect” Typically preceded by informal consultation 135-day time frame from initiation

What are the potential effects on listed

resources?

May affect: action may pose any effect

“No Effect”

“Not likely to adversely affect”

Requires written concurrence

Some/all effects are likely to be adverse?

“Likely to adversely affect”

Triggers formal consultation

All effects are beneficial,

insignificant, or discountable?

They will not be affected

Effects Determination Flow Chart

Prepared for “major construction activities” as defined under NEPA.

Recommended contents in 50 CFR 402.12.

A generic term for all other types of analyses. Used for non-major construction activities where

listed species or designated critical habitat may be present.

Recommended contents same as for a BA.

It’s not what you call it, but what you put in it.

Maps, photographs Vegetation community, soils, topography Describe other activities (past or current) that

affect the action area

The action area includes all locations directly or indirectly affected by the proposed action, and not merely the project footprint.

Describe the project: Sketches, drawings, maps How will the project be executed? Tools and methods Timing How will the proposed action change the action area?

Include any conservation measures that are part of the proposed action. This will help establish how your project was designed to minimize potential effects to listed resources.

Analysis must have a species list that includes: Listed, proposed, and candidate species Proposed and designated critical habitat

Sources of information: Section 7 range from the Service’s website:

Information for Planning and Conservation (www.ecos.fws.gov/ipac)

Agency resources; MNFI database; MiWaters

Is the species or its habitat present? Designated critical habitat? The “not known to occur here” problem

(Absence of evidence ‡ evidence of absence) Were surveys performed?

Describe methods (how, when) All or part of action area? Was the survey performed by qualified personnel?

Use best available information

Focus on the action area: Species status Habitat quantity/quality Habitat use Other management actions that affect the species

Do not spend a lot of time on the range-wide species status or general species biology unless it is directly pertinent to the action.

Describe the effects: No effects? Direct effects

occur during implementation of action, and by definition, within the action area

Indirect effects caused by the proposed action but are later in time and

reasonably certain to occur Cumulative effects

Different than NEPA The effects of future State, tribal, local or private

actions that are reasonably certain to occur in the action area.

Future Federal actions that are unrelated to the proposed action are not considered in this section because they require future separate consultations.

Interdependent actions = actions that have no independent utility apart from the action under consideration

Interrelated actions = actions that are part of a larger action and depend on the larger action for their justification

List species experts or other sources consulted Provide supporting documentation Include a literature cited section

An initiation package includes a final Biological Assessment (BA). Include all the elements as previously described. Formal consultation cannot be initiated until the

Service receives a final BA or other complete ESA analysis.

Once the Service reviews and determines that the initiation package is complete, the time clock begins. If not complete, the Service must notify the action

agency in writing within 30 days of receipt.

Formal consultation begins

0 days 135

Formal consultation ends

90

Formal Consultation Preparation of BO Draft will be

reviewed Ends with delivery

of final BO

Description of proposed action Status of the species/critical habitat Environmental baseline Effects of the action Cumulative effects Conclusion (jeopardy or no jeopardy) Reasonable and Prudent Alternative(s) (for jeopardy

conclusion only) Incidental Take Statement Reinitiation – Closing Statement

Anticipates the amount of take that is reasonably certain to occur incidental to the proposed action.

Gives exemption for this take, provided the action agency adheres to the: Reasonable and Prudent Measures (RPM) Terms and Conditions (T&C)

RPMs are applied to minimize the effect of the incidental take. Meant to reduce the level of take associated with project

activities.

The T&Cs implement the RPMs. RPMs and T&Cs are nondiscretionary

Four general conditions for reinitiating formal consultation: 1) amount or extent of incidental take is exceeded; 2) new information reveals effects of the action that may

affect listed species or critical habitat in a manner or to an extent not previously considered;

3) the action is modified in a manner causing effects to listed species or critical habitat not previously considered;

4) a new species is listed or critical habitat designated that may be affected by the action.

https://ecos.fws.gov/ipac

ONLY FOR MICHIGAN

Management activities are needed to maintain safe roadways for the motoring public

Some management activities could result in harm or mortality

Photo by Dick Dickinson

Best to mow when snakes are hibernating Mowing is unconstrained in the

inactive season During the active season, snakes

may be killed or injured by mower blades or crushed by tires

Turf grass (areas maintained as lawn around buildings) or areas where trying to discourage EMR (trails) can be maintained as short grass, <4-5 inches, that EMR is unlikely to use.

Brush-hogging, hydro-axing, vehicles/other equipment should occur during the inactive season when the ground is frozen (such that soils can be left undisturbed)

Use low impact harvest methods in occupied wetlands, including track mounted skid steers to cut and remove individual trees

If ground isn’t completely frozen, or if working near potential hibernacula, use hand tools

Do not burn brush during the active season

EMR hibernates in areas where the water table is near the surface but still have access to air to breathe

Water levels should not be artificially lowered during the inactive season Snakes need access to water within their hibernacula to

avoid desiccation and freezing Flooding is also a threat Where applicable, water levels should be allowed to

flow naturally and not artificially stabilized to allow for restoration of early successional habitats

Follow all label instructions Avoid spray drift beyond the target species/area

(optimal wind speed and direction, boom height, droplet size calibration, precipitation forecast, etc. )

Avoid broadcast spraying of herbicides in occupied habitat; use spot spraying, painting cut stumps, wicking, other targeted methods

In Michigan, use wildlife-safe materials for all projects where EMR may occur

Avoid products containing plastic mesh Net-less blankets,

jute or other natural fibers, loose mulch, etc.

EMR killed by an erosion control blanket’s plastic mesh netting

FHWA EMR Programmatic Agreement

• Threat Exclusion Zone

Timing and Best Management Practices can avoid or minimize adverse impacts

If you can avoid harming EMR (most often with timing restrictions), you don’t need an ESA permit

If you can’t avoid take: Can apply for an Incidental Take Permit If your project has a Federal component, the Federal agency completes section 7 consultation Requires advanced planning

USFWS photo

Indiana Bat Section 7• “May Affect”

• Any impact to known or potential habitat• “May affect, not likely to adversely affect” (informal

consultation):• Removal of suitable habitat when bats are not present in

summer habitat (October 1- March 31)• “May affect, likely to adversely affect” (formal consultation):

• Disturbance of hibernacula • Removal of known roost trees• Removal of potential roost trees when bats are potentially

present (April 1- Sept 30)• Removal/fragmentation of a significant portion of available

foraging/roosting habitat at any time of year

Matt Ihnken U.S. Fish & Wildlife Service

Michigan Ecological Services Field Office2651 Coolidge RD, Suite 101

East Lansing, Michigan

Email: matthew_ihnken@fws.govOffice: (517) 351-8474