Programmatic Biological Opinions for Ecological Restoration: Efficient Section 7 Consultation with NMFS for Projects in Riparian and Aquatic Habitat

Many habitat restoration project applicants, whether proposing voluntary or mitigation activities, need a federal permit or have federal grant funding for their projects, or both.

By Erik Schmidt, WRA Regulatory Permitting Specialist

The Endangered Species Act (ESA) states that all federal agencies are responsible for conserving threatened and endangered species and their habitat. Section 7 of the ESA requires federal agencies providing permits, funding or authorizations (federal actions that create a federal “nexus”) to cooperate and consult with NOAA’s National Marine Fisheries Service (NMFS or NOAA Fisheries) and the U.S. Fish and Wildlife Service (FWS) to ensure that their actions do not jeopardize species listed by the two Services as threatened or endangered. WRA and our clients interact with Section 7 most frequently through permitting by the Army Corps, which authorizes projects affecting wetlands and waters under the Clean Water Act Section 404 and Rivers and Harbors Act of 1899, and federal funding (Caltrans, a state agency, conducts Section 7 consultations through authority delegated to it by the Federal Highway Administration, which provides funding for highway and road projects in California).

The Endangered Species Act (ESA) states that all federal agencies are responsible for conserving threatened and endangered species and their habitat. Section 7 of the ESA requires federal agencies providing permits, funding or authorization (federal actions that create a federal “nexus”) to cooperate and consult with NOAA’s National Marine Fisheries Service (NMFS or NOAA Fisheries) and the U.S. Fish and Wildlife Service (FWS) to ensure that their actions do not jeopardize species listed by the two Services as threatened or endangered. WRA and our clients who propose projects to enhance or restore habitat interact with Section 7 most frequently through permitting by the U.S. Army Corps of Engineers, which authorizes projects affecting wetlands and waters, transportation-related funding from Caltrans (Caltrans is a state agency which conducts Section 7 consultations through authority delegated to it by the Federal Highway Administration), and funding provided to local partners from a variety of federal agencies. The restoration activities can run the gamut, from culvert and other fish passage barrier modifications and removals, floodplain re-connection and creation of off-channel fish habitat, water conservation measures and instream flow enhancements, rural road erosion control, fish screen installation, placement of large wood for instream habitat structure and more.

Removing fish passage barriers, such as this poorly functioning fish ladder, is a high priority for state and federal agencies. Photo: Nicholas Brinton

How to Conduct a Section 7 Consultation

To conduct Section 7 consultation, the project applicant or its consultant – WRA – must provide a biological assessment so NMFS or FWS can assess the potential effects of the project and complete the consultation with a formal biological opinion (BO) or “informal” concurrence letter. The biological assessment must meet stringent requirements for technical detail to be determined sufficient by NMFS and FWS. This entire process can take a couple of months to a year or longer, depending on the complexity of the project and the staff workload at NMFS or FWS. Until consultation is concluded, the project cannot be issued a permit or go to construction. And the same process and timeline apply to beneficial projects as do to development projects with larger – sometimes much larger — impacts. So for every applicant whose project has a federal nexus, completing Section 7 is a key part of regulatory review.

WRA’s Regulatory Specialist Erik Schmidt and NOAA Fisheries Engineer David White visit a fish passage and stream restoration project site on Mill Creek, a tributary to the Russian River, in Sonoma County. The project opened up 11 miles of high-quality habitat for endangered coho salmon and threatened steelhead that had been blocked for decades by a small dam. Photo: Erik Schmidt

Programmatic Consultations

In 2006, NMFS’ Santa Rosa Office, recognizing the need to accelerate the implementation of habitat, flow enhancement and water quality improvement projects in the San Francisco Bay and North Central/Central Coast region, created its first programmatic  Section 7 BO for many common types of restoration. Programmatic consultations address multiple projects; these are often repeated actions or multiple actions with similar impact types for which similar avoidance and minimization measures can be implemented. NMFS has since found that programmatic BOs (PBOs) reduce the time required for NMFS staff biologists to complete Section 7 consultation from an average of 16 weeks to approximately two weeks, a significant time and cost savings for the federal agencies involved and even more importantly, for project applicants.

The 2006 PBO was followed in 2012 by a similar PBO for restoration projects in North Coast counties, a 2015 PBO for projects in Southern California, and a landmark 2018 PBO for restoration in the Central Valley and the Delta. Altogether, the four PBOs developed by NMFS allow for much more efficient review and approval of conservation projects in the entire state. This benefits listed salmon, steelhead and sturgeon populations, other aquatic life, natural sediment transport processes, and the healthy functioning of stream ecosystems, while minimizing incidental impacts to these listed species. The NMFS PBOs have sped permitting and construction of more than 180 habitat projects in our state through 2019 – reconnecting natural floodplains, removing small dams and replacing undersized culverts which allow fish to swim back into streams blocked for decades, and helping vineyards to develop off-stream water sources so they can reduce pumping during critical periods. Many kinds of such efforts are needed to restore degraded natural systems that we all depend on, and to recover endangered species.

 Large wood structures placed in streams can improve habitat complexity for salmon and steelhead at low cost. Photo: Erik Schmidt

WRA Is Here to Help

It is important to recognize that even beneficial projects must be planned, designed, and described carefully and in sufficient detail, incorporating all the appropriate impact avoidance and minimization measures to protect the environment during construction. This will ensure smoother regulatory review and ultimately, a successful project outcome. PBOs clearly state the eligible project types, impact limits, and standard avoidance and minimization measures that can be incorporated directly into an applicant’s project description. WRA staff are intimately familiar with these NMFS PBOs for restoration, and the requirements for their use. We can help you determine whether your project is appropriate for coverage, including how it might be modified if necessary to gain approval for Section 7 consultation with a PBO (and other state and federal programmatic approvals or permits). These efficient regulatory tools are a relatively new way to bring together agency funding, permitting staff, applicants, and knowledgeable consultants in partnerships that can help get much-needed habitat restoration work implemented in a timely and cost-effective way. Our regulatory and biological experts look forward to working with you!