50 C.F.R. § 402.13

Informal consultation

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(a) Informal consultation is an optional process that includes all discussions, correspondence, etc., between the Service and the Federal agency or the designated non-Federal representative, designed to assist the Federal agency in determining whether formal consultation or a conference is required.

(b) During informal consultation, the Service may suggest modifications to the action that the Federal agency and any applicant could implement to avoid the likelihood of adverse effects to listed species or critical habitat.

(c) If during informal consultation it is determined by the Federal agency, with the written concurrence of the Service, that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary.

(1) A written request for concurrence with a Federal agency's not likely to adversely affect determination shall include information similar to the types of information described for formal consultation at § 402.14(c)(1) sufficient for the Service to determine if it concurs.

(2) Upon receipt of a written request consistent with paragraph (c)(1) of this section, the Service shall provide written concurrence or non-concurrence with the Federal agency's determination within 60 days. The 60-day timeframe may be extended upon mutual consent of the Service, the Federal agency, and the applicant (if involved), but shall not exceed 120 days total from the date of receipt of the Federal agency's written request consistent with paragraph (c)(1) of this section.

[74 FR 20423, May 4, 2009, as amended at 84 FR 45016, Aug. 27, 2019]

Notes of Decisions

Cited in 158 cases (27 in the last 5 years), 1993–2026 · leading case: Karuk Tribe v. United States Forest Service

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Karuk Tribe v. United States Forest Service (2012) ca9 · cites it 4× “50 C.F.R. §§ 402.13 , 402.14. Formal consultation requires preparation of a biological opinion detailing how the agency action affects listed species or their critical habitat, but informal consultation need be nothing more than discussions and correspondence with the…”

Center for Biological Diversity v. United States Department of the Interior (2009) cadc · cites it 4× “See 50 C.F.R. §§ 402.13 , 402.14. If the agency determines that its action will not affect any listed species or critical habitat, however, then it is not required to consult with NMFS or Fish and Wildlife.”

Medina County Environmental Action Ass'n v. Surface Transportation Board (2010) ca5 · cites it 3× “§ 1536(c)(1); 50 C.F.R. § 402.13 (a). If no such species or critical habitat may be present, no further consultation is required; if they may be present, then the informal consultation proceeds to the second step.”

San Luis & Delta-Mendota Water v. Natural Resources Defense Coun (2014) ca9 · cites it 2× “50 C.F.R. §§ 402.13 , 402.14. Formal consultation requires the consulting agency, here the FWS, to issue a biological opinion stating whether the proposed action is likely to jeopardize such species or habitat.”

Pacific Coast Federation of Fishermen's Associations v. U.S. Bureau of Reclamation (2001) cand · cites it 4× “(citing 50 C.F.R. § 402.13 (b)). “If no such concurrence is reached, the regulations require that formal consultation occur.”

American Littoral Society v. United States Environmental Protection Agency Region (2002) njd · cites it 5× “” 50 C.F.R. § 402.13 (a). If the agency determines during informal consultation, with the written concurrence of the Service, “that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is…”

Conservation Congress v. United States Forest Service (2013) ca9 · cites it 3× “” 50 C.F.R. § 402.13 (a). If, however, after this “informal consultation,” the consulting agency disagrees that the proposed action is not likely to have adverse effects, then formal consultation is required.”

McConnell v. Federal Election Commission (2003) dcd · cites it 2× “" (quoting 50 C.F.R. § 402.13 (a))). The FEC's safe-harbor provision appears to contravene the plain language of sections 202 and 214, which need not be stretched in the slightest in order to reach an electioneering communication that a corporation, union or individual merely…”

American Fuel & Petrochemical v. EPA (2019) cadc · cites it 2× “2009) (emphasis added); see also 50 C.F.R. §§ 402.13 (a), 402.14(b) (the consultation process terminates and no further action is necessary if the agency determines, with the written concurrence of the relevant Service, that the action “is not likely to adversely affect” any…”

Center for Biological Diversity v. EPA (2022) cadc · cites it 3× “See 50 C.F.R. § 402.13 ; see also 16 U.S.C. § 1536 (a)(2), (a)(4).”

Alliance for the Wild Rockies v. Christopher Savage (2018) ca9 · cites it 2× “See 50 C.F.R. § 402.13 (informal consultation); 50 C.”

Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. (2018) ca9 “" 50 C.F.R. §§ 402.13 , 402.14. Here, the acting agencies are the Corps and Reclamation, and the consulting agency is the National Marine Fisheries Service ("NMFS").”

Show all 158 citing cases →

— 50 C.F.R. § 402.13(a) — 4 cases

Sierra Club v. Flowers (2006) flsd

Silver v. Babbitt (1995) azd

Fund for Animals, Inc. v. Thomas (1996) dcd

OLENEC v. National Marine Fisheries Service (2011) ord

— 50 C.F.R. § 402.13(b) — 1 case

Silver v. Babbitt (1995) azd

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