50 C.F.R. § 402.11

Early consultation

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(a) Purpose. Early consultation is designed to reduce the likelihood of conflicts between listed species or critical habitat and proposed actions and occurs prior to the filing of an application for a Federal permit or license. Although early consultation is conducted between the Service and the Federal agency, the prospective applicant should be involved throughout the consultation process.

(b) Request by prospective applicant. If a prospective applicant has reason to believe that the prospective action may affect listed species or critical habitat, it may request the Federal agency to enter into early consultation with the Service. The prospective applicant must certify in writing to the Federal agency that (1) it has a definitive proposal outlining the action and its effects and (2) it intends to implement its proposal, if authorized.

(c) Initiation of early consultation. If the Federal agency receives the prospective applicant's certification in paragraph (b) of this section, then the Federal agency shall initiate early consultation with the Service. This request shall be in writing and contain the information outlined in § 402.14(c) and, if the action is a major construction activity, the biological assessment as outlined in § 402.12.

(d) Procedures and responsibilities. The procedures and responsibilities for early consultation are the same as outlined in § 402.14(c)-(j) for formal consultation, except that all references to the “applicant” shall be treated as the “prospective applicant” and all references to the “biological opinion” or the “opinion” shall be treated as the “preliminary biological opinion” for the purpose of this section.

(e) Preliminary biological opinion. The contents and conclusions of a preliminary biological opinion are the same as for a biological opinion issued after formal consultation except that the incidental take statement provided with a preliminary biological opinion does not constitute authority to take listed species.

(f) Confirmation of preliminary biological opinion as final biological opinion. A preliminary biological opinion may be confirmed as a biological opinion issued after formal consultation if the Service reviews the proposed action and finds that there have been no significant changes in the action as planned or in the information used during the early consultation. A written request for confirmation of the preliminary biological opinion should be submitted after the prospective applicant applies to the Federal agency for a permit or license but prior to the issuance of such permit or license. Within 45 days of receipt of the Federal agency's request, the Service shall either:

(1) Confirm that the preliminary biological opinion stands as a final biological opinion; or

(2) If the findings noted above cannot be made, request that the Federal agency initiate formal consultation.

Notes of Decisions

Cited in 10 cases, 1997–2018 · leading case: Nat. Resources Def. Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007).

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Nat. Resources Def. Council v. Kempthorne, 506 F. Supp. 2d 322 (E.D. Cal. 2007). · cites it 2× “” 50 C.F.R. § 402.11 (b). The result of early consultation is a “preliminary biological opinion,” the contents of which are “the same as for a biological opinion issued after formal consultation except that the incidental take statement provided with a preliminary biological…”

Am. Littoral Soc'y v. United States Env't Prot. Agency Region, 199 F. Supp. 2d 217 (D.N.J. 2002). “50 C.F.R. §§ 402.11 , 402.14. If an agency determines that its actions “may affect” a protected species or its habitat, then the agency must enter into consultation with the FWS or NMFS to ensure that the action is not likely to jeopardize the continued existence of any listed…”

Good v. United States, 39 Fed. Cl. 81 (Fed. Cl. 1997). “Although FWS regulations exhibit a clear preference for receiving applicant input during the development of RPAs, 50 C.F.R. § 402.11 (a)-(b), and provide the applicant with the right to review a draft of the biological opinion so that he may comment upon both the jeopardy…”

Alabama v. United States Army Corps of Engineers, 441 F. Supp. 2d 1123 (N.D. Ala. 2006). “50 C.F.R. § 402.11 (2005). If the agency determines that its actions “may affect” a protected species or its habitat, then the agency must generally enter into consultation with FWS.”

Kentucky Heartwood, Inc. v. Worthington, 20 F. Supp. 2d 1076 (E.D. Ky. 1998). “§ 1536 ; 50 C.F.R. §§ 402.11 and 402.14. How this determination is made is left up to the agency.”

Sierra Club v. United States Fish & Wildlife Serv., 189 F. Supp. 2d 684 (W.D. Mich. 2002). “[If an agency determines that its actions have “no effect” on protected species and their habitats, then consultation is not required. See 50 C.”

California Sportfishing Prot. All. v. Fed. Energy Regulatory Comm'n, 472 F.3d 593 (9th Cir. 2006). “See 50 C.F.R. § 402.11 . In May 2005, California Sportfishing filed this petition for review of the FERC denials of consultation.”

House v. Us Forest Serv., Us Dept. of Agri., 974 F. Supp. 1022 (E.D. Ky. 1997). “§ 1536 ; 50 C.F.R. §§ 402.11 and .14. How this determination is made is left up to the agency.”

House v. United States Forest Serv., 974 F. Supp. 1022 (E.D. Ky. 1997). “§ 1536 ; 50 C.F.R. §§ 402.11 and .14. How this determination is made is left up to the agency.”

Friends of the River v. Nat'l Marine Fisheries Serv., 293 F. Supp. 3d 1151 (E.D. Cal. 2018). “See 50 C.F.R. § 402.11 (f) (specifying that a preliminary BiOp can be confirmed as final after the consulting agency "reviews the proposed action" and finds no significant changes); 50 C.”

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