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The U.S. Fish and Wildlife Service and National Marine Fisheries Service propose to change the process for federal interagency consultation under Section 7 of the Endangered Species Act (ESA). Key among these proposed changes is the addition of compensatory mitigation to minimize the impacts of incidental take. Other proposed changes would revise the definition and application of “effects of the action” and “environmental baseline,” and clarify responsibility for reinitiating consultation.


The addition of compensatory mitigation would, for the first time, add an obligation to mitigate in return for an incidental take statement. The new mitigation provision would give the Services the exclusive ability to prescribe an amount and form of mitigation deemed “reasonable and prudent” for minimizing the impact of incidental take on a listed species. Mitigation has long been an act of voluntary cooperation among project proponents, action agencies, and the Services, with measures tailored to the circumstances of the parties and the needs of the species.

The proposed rule change, if finalized, would make these previously voluntary actions subject to the recently finalized ESA Compensatory Mitigation Policy. While changes would only apply prospectively, meaning that completed consultations would not be subject to any new mitigation provisions, reinitiated consultations may be affected. 


The Services are requesting comment on the proposed changes through August 21, 2023. SWCA can help you understand what the rule change might mean for your projects and help you prepare comments for meaningful consideration by the Services.

Read the proposed rule and submit a formal comment at:


For further information or help preparing comments, contact your SWCA Project Manager or aglen [at] swca [dot] com (subject: Proposed%20Rule%20Changes%20for%20Endangered%20Species%20Act%20Section%207%20Consultations) (Amanda Glen), Senior Technical Director - Biological Services.