50 C.F.R. § 402.10

Conference on proposed species or proposed critical habitat

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(a) Each Federal agency shall confer with the Service on any action which is likely to jeopardize the continued existence of any proposed species or result in the destruction or adverse modification of proposed critical habitat. The conference is designed to assist the Federal agency and any applicant in identifying and resolving potential conflicts at an early stage in the planning process.

(b) The Federal agency shall initiate the conference with the Director. The Service may request a conference if, after a review of available information, it determines that a conference is required for a particular action.

(c) A conference between a Federal agency and the Service shall consist of informal discussions concerning an action that is likely to jeopardize the continued existence of the proposed species or result in the destruction or adverse modification of the proposed critical habitat at issue. Applicants may be involved in these informal discussions to the greatest extent practicable. During the conference, the Service will make advisory recommendations, if any, on ways to minimize or avoid adverse effects. If the proposed species is subsequently listed or the proposed critical habitat is designated prior to completion of the action, the Federal agency must review the action to determine whether formal consultation is required.

(d) If requested by the Federal agency and deemed appropriate by the Service, the conference may be conducted in accordance with the procedures for formal consultation in § 402.14. An opinion issued at the conclusion of the conference may be adopted as the biological opinion when the species is listed or critical habitat is designated, but only if no significant new information is developed (including that developed during the rulemaking process on the proposed listing or critical habitat designation) and no significant changes to the Federal action are made that would alter the content of the opinion. An incidental take statement provided with a conference opinion does not become effective unless the Service adopts the opinion once the listing is final.

(e) The conclusions reached during a conference and any recommendations shall be documented by the Service and provided to the Federal agency and to any applicant. The style and magnitude of this document will vary with the complexity of the conference. If formal consultation also is required for a particular action, then the Service will provide the results of the conference with the biological opinion.

Notes of Decisions

Cited in 11 cases (3 in the last 5 years), 1997–2024 · leading case: New Mexico Ex Rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009).

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New Mexico Ex Rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009). “See 50 C.F.R. § 402.10 ("A conference between a Federal agency and the Service shall consist of informal discussions concerning an action that is likely to jeopardize the continued existence of the proposed *701 species.”

Reservation Ranch v. United States, 39 Fed. Cl. 696 (Fed. Cl. 1997). · cites it 3× “50 C.F.R. § 402.10 (1996). The ESA informal conference procedure for a species proposed for listing assists federal agencies in identifying potential future conflicts between its activities and species concerns, should the species later be listed.”

Nulankeyutmonen Nkihtaqmikon v. Impson, 462 F. Supp. 2d 86 (D. Me. 2006). “See 50 C.F.R. 402.10 (“Each Federal agency shall confer with the Service on any action which is likely to jeopardize the continued existence of any proposed species or result in the destruction or adverse modification of proposed critical habitat.”

All. for the Wild Rockies v. Austin, 55 F. Supp. 3d 1294 (D. Mont. 2014). · cites it 2× “50 C.F.R. § 402.10 (a), (b). As the Forest Service described in the EA, the Project is unlikely to have an impact on the wolverine because: “the size of the proposed project is much smaller than an average wolverine home range; the area lacks quality wolverine denning habitat;…”

Ctr. for Biological Diversity v. Deb Haaland, 87 F.4th 980 (9th Cir. 2023). “See 50 C.F.R. § 402.10 . The Service included its BiOp and conference opinion in the same document, so we treat the opinions as one.”

Wilderness Soc., Cen. for Nat. Ecosysts. v. Wisely, 524 F. Supp. 2d 1285 (D. Colo. 2007). “50 C.F.R. § 402.10 , 402.11, the issues in this case focus on informal consultations under 50 C.”

Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998). “See also 50 C.F.R. §§ 402.10 , 402.13, and 402.14 (1998).”

Wilderness Soc'y, Ctr. for Native Ecosystems v. Wisely, 524 F. Supp. 2d 1285 (D. Colo. 2007). “50 C.F.R. § 402.10 , 402.11, the issues in this case focus on informal consultations under 50 C.”

Ctr. for Biological Diversity v. Bernhardt (D. Mont. 2022). “§ 1536 (a)(4); 50 C.F.R. § 402.10 , which would then require their consideration in environmental decision documents such as biological assessments, see 50 C.”

Wildearth Guardians v. U.S. Fish & Wildlife Serv. (D.D.C. 2024). “” 50 C.F.R. § 402.10 (c). Unlike formal consultation, the conferral requirement for proposed species does not require the preparation of a BiOp, the issuance of a jeopardy or no jeopardy finding, or the issuance of an ITS.”

Roger Nicholson & Ambrose McAuliffe v. United States of Am., Sec'y, United States Dep't of the Interior, 113 F.3d 1242 (9th Cir. 1997). “1536 (a)(4); 50 C.F.R. 402.10. While this nonbinding requirement took effect when the FWS issued its proposal, Appellants themselves have no obligation to "comply" with the proposal's terms.”

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