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Threatend and Endangered Species

The Endangered Species Act (ESA) declares the intention of the Congress to conserve threatened and endangered species and the ecosystems an which those species depend. The ESA requires that federal agencies, in consultation with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), use their authorities in furtherance of its purposes by carrying out programs for the conservation of endangered or threatened species, and by taking such action necessary to ensure that any action authorized, funded, or carried out by the Agency is not likely to jeopardize the continued existence of such endangered or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary of the Interior or Commerce, as appropriate, to be critical.

If a proposed project includes the discharge of dredged or fill material into waters of the United States, and/or work in, or affecting, a navigable water of the United States, and if federally-listed threatened or endangered species, or its critical habitat, may be affected by the proposed activity, then the USACE must consult with the appropriate federal agency.  The USACE must consider all the direct and indirect impacts of the proposed project on the federally-listed species or its critical habitat.  For the purpose of evaluating Department of the Army applications, the scope of analysis under the ESA is the permit area, which includes all waters of the United States affected by activities associated with the project, as well as any additional area of non-waters of the United States in the immediate vicinity of, directly associated with, and/or affected by, activities in waters of the United States where there is sufficient Federal control and responsibility.

Standard Individual Permit applications are reviewed on a case-by-case basis by the USACE for potential effects to threatened or endangered species.  Permit applicants should provide information to the USACE that addresses whether proposed project may affect federally listed endangered or threatened species.

Letter of Permission procedure general conditions provide that no authorization will be granted for an activity that is likely to jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Endangered Species Act, or for an activity that is likely to destroy or adversely modify the critical habitat of such species.  Applicants must notify the USACE if any listed species or critical habitat might be affected by, or is in the vicinity of, the project and must not begin work until notified by the District Engineer that the requirements of the Endangered Species Act have been satisfied and that the activity is authorized.

For authorization under nationwide, regional, or programmatic general permits, prospective permittees must submit a pre-construction notification to the USACE (even if pre-construction notification is not otherwise required) if the project may affect, or is in the vicinity of, federally-listed endangered or threatened species.  The PCN must include the name(s) of the endangered or threatened species that may be affected by the proposed work, located in the vicinity of the proposed activity, or utilize the designated critical habitat as well as any other information required by the general permit.  As a result of formal or informal consultation with the USFWS or NMFS, the USACE may add species-specific regional endangered species conditions to general permits.  No activity can be authorized by a general permit if the continued existence of a federally-threatened or endangered or proposed threatened or endangered species would be jeopardized or its critical habitat destroyed or adversely modified by the proposed project.

Permittees may not begin work until notified by the USACE that the requirements of the Endangered Species Act have been satisfied and the activity is authorized.  Activities outside the permit area of the USACE that may affect a federally-listed endangered or threatened species or its critical habitat could require permits from the U.S. Fish and Wildlife Service to prevent a violation of Section 9 of the Endangered Species Act.