USFWS Statewide Restoration Programmatic Biological Opinion (PBO)

Agency or authority

U.S. Fish and Wildlife Service (USFWS)

What this permitting pathway covers

The U.S. Fish and Wildlife Service (USFWS) Statewide Restoration Programmatic Biological Opinion (PBO) was developed as part of Sustainable Conservation’s Statewide Permitting Initiative, completed in 2022. The PBO was completed with the NOAA Restoration Center, the US Army Corps of Engineers, and multiple US Fish & Wildlife Service programs including the Coastal Program, the Partners for Wildlife Program, the Fish and Aquatic Conservation Program, Refuges, and the Central Valley Joint Venture.

Highlights

Faster and simpler compliance with the federal Endangered Species Act, especially for USFWS-funded restoration projects
Projects applying for coverage under the Restoration Programmatic Biological Opinion use an ESA Section 7(a)(2) Review Form, rather than preparation of an individual Biological Assessment/ Biological Opinion (BA/BO)
The PBO provides formal Section 7 ESA consultation for 57 species (36 animals and 21 plants) and 36 critical habitats (see list below) with a Likely to Adversely Affect (LAA) determination. The PBO also includes concurrence on the not likely to adversely affect (NLAA) determination for 11 species and 4 critical habitats (see list below). Those species and critical habitats with an NLAA determination were evaluated and it was determined that no take would result from the restoration actions included in this PBO.
No specific project size limit, but includes annual incidental take limits for each species
Currently, eligible projects funded, authorized or carried out by the U.S. Army Corps of Engineers, NOAA Restoration Center, or the U.S. Fish and Wildlife Service may be covered by the consultation. However, any federal agency interested in using this consultation for eligible restoration projects may join the consultation as a “late arriving lead action agency.”
Protection measures for state/federal listed species were coordinated with the California Department of Fish and Wildlife (CDFW) for consistency with state requirements.
General and species protection measures can be filtered based on project activities and species using Sustainable Conservation’s Protection Measures Selection Tool.
Contact CDFW at restorationpermitting@wildlife.ca.gov about eligibility for a Restoration Consistency Determination or other restoration permit to save time on getting approval from CDFW.

Eligibility

All projects must meet the definition of a restoration project and be consistent with USFWS recovery plans or recovery-related documentation for Covered Species.

A restoration project is defined as “…an eligible project type and relevant protection measures that will result in a net increase in aquatic, riparian, floodplain, wetland, or coastal dune resource functions and/or services through implementation of the eligible project types, relevant protection measures, and design guidelines.”

Not every restoration activity will benefit all affected species; at the same time, the goal with each restoration project will be no net loss of Waters of the United States and only discountable adverse effects to federally listed species and their critical habitat through implementation of relevant protection measures and/or offsetting habitat restoration or enhancement as part of the project design and within the project footprint, when feasible.

A restoration project covered by this consultation may include multiple benefits, such as habitat restoration, groundwater recharge, recreation, flood management, water quality improvement, and/or adaptation to climate change. In addition, some restoration projects may require creation, modification, or relocation of infrastructure so that travel, recreation, water supply, or other types of infrastructure and operations can continue in the context of the restored habitat (e.g., relocation of a bridge or water control structure to allow for habitat restoration).

Conservation Requirements

Conservation requirements in this PBO come in the form of the eligibility criteria described above, the list of exclusions (see below), general protection measures, protection measures by guild, and species-specific protection measures.

General protection measures focus on construction practices like work hours, equipment maintenance, material disposal, project cleanup; water quality and hazardous materials such as erosion control, spill response, in-water work, dewatering, dredging; vegetation/habitat disturbance (invasive species removal, revegetation), and herbicide use.

Species protection measures are grouped by guild: amphibians, reptiles, birds, mammals, fish, plants, and invertebrates (including shrimp species, beetles, and butterflies). For most guilds, there are measures that apply to an entire guild, followed by measures that are applicable to a single or smaller group of species. Both the measures for a specific guild and for a single or smaller group of species would need to be implemented to avoid and minimize impacts, as applicable to the project. Species-specific measures relate to work windows, habitat assessments, and species handling and relocation to name a few.

Note that the USFWS Field Offices have the discretion to approve projects with variations to the conservation requirements based on site and project-specific conditions.

Protection Measures Selection Tool

General and species protection measures can be filtered based on project activities and species using Sustainable Conservation’s Protection Measures Selection Tool.

Applicable locations

Available statewide for the following habitats that may be affected by site preparation, construction, and site restoration at each action site: riparian areas; rivers and streams; open water areas including bays, lakes, ponds, and lagoons; wetlands including vernal pools, seasonal swales, seasonal wetlands, managed wetlands, and seeps; brackish, salt, and freshwater marshes; tidal lagoons; estuaries; floodplains and alluvial fans; desert washes, arroyos, mesas, terraces, mesic areas, coastal dunes and other similar habitats; and areas of eligible restoration projects that are adjacent to and would benefit these habitat types.

Permit documents

Expires on

August 31, 2032

How to apply

See the Administrative Process flowchart and Section 2.1.2. Administration of the PBO (starting on page 18, page 36 of the PDF) and the Application Tips and Resources Section below for more details about the application and post-construction reporting process.

There are four basic steps for using the PBO:

Contact the lead federal agency and your local USFWS Field Office (see contacts below) to determine if your project meets the covered project types and conservation requirements. See the list of Activities Covered and Exclusions on this page.
Seek technical assistance from your local USFWS Field office and review and complete the ESA Section 7(a)(2) Review Form.
Submit the ESA Section 7(a)(2) Review Form to the federal lead agency, who will review and forward to the local USFWS Field Office for determination of concurrence.
After USFWS concurrence, and project implementation, complete monitoring and submit the Post-construction Report Form.

Pacific Southwest Regional Office Contact

Marissa Reed, marissa_reed@fws.gov. Contact for general questions. Direct project-specific questions to your local USFWS field office.

Point of Contact for Each USFWS Field Office for the PBO

Klamath Falls Field Office: Margie Shaffer (margie_shaffer@fws.gov)

Yreka Field Office: Christine Jordan (christine_jordan@fws.gov)

Arcata Field Office: Brad Nissen (bradley_nissen@fws.gov)

Sacramento Field Office: Send emails about the PBO to their main office email at SFWO_mail@fws.gov

Bay-Delta Field Office: Kim Squires (kim_squires@fws.gov) for any projects within their jurisdictional boundaries. Contact Lee Bartoo (aondrea_bartoo@fws.gov) and Stephanie Millsap (stephanie_millsap@fws.gov) about any Anadromous Fish Restoration Program projects.

Reno Field Office: Send emails to their main office email at RFWOmail@fws.gov

Ventura Field Office: Send emails about the PBO to their main office email at fw8venturasection7@fws.gov.

Carlsbad Field Office: Jesse Bennett (jesse_bennett@fws.gov)

May be used with:

Example projects

Species covered

Species with a Likely to Adversely Affect (LAA) Determination

The PBO analyzes impacts to species and critical habitats and provides take coverage for 36 animal species, including eight amphibians (with separate take coverage for distinct population segments of the California tiger salamander and foothill yellow-legged frog), four fish, three reptiles, eight birds, three mammals, and 10 invertebrate species. For those species that may be adversely affected by the restoration activities, the cooperating agencies proactively set self-imposed incidental take limits.

See the Self-Imposed Annual Take Limits in Section 2.1.5.1. Of the PBO. The take limit for each covered animal species is based on an annual limit that cannot be exceeded in any year. The take limits have been set using different metrics, including by field office, by project, by population, by recovery unit, by pond, and by occupied pool.

Amphibians

arroyo (=arroyo southwestern) toad (Anaxyrus californicus)
California red-legged frog (Rana draytonii)
California tiger salamander – Central California DPS (Ambystoma californiense)
California tiger salamander – Santa Barbara County DPS (Ambystoma californiense)
Foothill yellow-legged frog – Central Coast DPS (Rana boylii)
Foothill yellow-legged frog – North Feather DPS (Rana boylii)
Foothill yellow-legged frog – South Coast DPS (Rana boylii)
Foothill yellow-legged frog – Southern Sierra DPS (Rana boylii)
mountain yellow-legged frog – northern California DPS (Rana muscosa)
Santa Cruz long-toed salamander (Ambystoma macrodactylum croceum)
Sierra Nevada yellow-legged frog (Rana sierrae)
Yosemite toad (Anaxyrus canorus)

Reptiles

Alameda whipsnake (Masticophis lateralis euryxanthus)
giant garter snake (Thamnophis gigas)
San Francisco garter snake (Thamnophis sirtalis tetrataenia)

Birds

California least tern (Sterna antillarum browni)
California Ridgway’s rail (Rallus obsoletus)
coastal California gnatcatcher (Polioptila californica)
least Bell’s vireo (Vireo bellii pusillus)
light-footed Ridgway’s rail (Rallus obsoletus levipes)
marbled murrelet (Brachyramphus marmoratus)
Northern spotted owl (Strix occidentalis caurina)
western snowy plover – Pacific Coast population DPS (Charadrius nivosus ssp. nivosus)

Mammals

riparian woodrat (Neotoma fuscipes riparia)
riparian brush rabbit (Sylvilagus bachmani riparius)
salt marsh harvest mouse (Reithrodontomys raviventris)
San Bernardino Merriam’s kangaroo rat (Critical Habitat Only) (Dipodomys merriami parvus )

Invertebrates

California freshwater shrimp (Syncaris pacifica)
Conservancy fairy shrimp (Branchinecta conservatio)
longhorn fairy shrimp (Branchinecta longiantenna)
Mount Hermon June beetle (Polyphylla barbata)
Riverside fairy shrimp (Streptocephalus woottoni)
San Diego fairy shrimp (Branchinecta sandiegonensis)
Smith’s blue butterfly (Euphilotes enoptes smithi)
valley elderberry longhorn beetle (Desmocerus californicus dimorphus)
vernal pool fairy shrimp (Branchinecta lynchi)
vernal pool tadpole shrimp (Lepidurus packardi)

Fish

Delta smelt (Hypomesus transpacificus)
Lahontan cutthroat trout (Oncorhynchus clarkii henshawi)
tidewater goby (Eucyclogobius newberryi)
unarmored threespine stickleback (Gasterosteus aculeatus williamsoni)

Non-vernal pool Plant Species

Ben Lomond spineflower (Chorizanthe pungens var. hartwegiana)
California seablite (Suaeda californica)
La Graciosa thistle (Cirsium loncholepis)
marsh sandwort (Arenaria paludicola)
salt marsh bird’s-beak (Cordylanthus maritimus ssp. maritimus)
Ventura marsh milk-vetch (Astragalus pycnostachyus var. lanosissimus)

Vernal Pool Plant Species

Butte County meadowfoam (Limnanthes floccosa ssp. californica)
California orcutt grass (Orcuttia californica)
Contra Costa goldfields (Lasthenia conjugens)
few-flowered navarretia (Navarretia leucocephala ssp. pauciflora)
fleshy owl’s-clover (Castilleja campestris ssp. succulenta)
hairy orcutt grass (Orcuttia pilosa)
Hoover’s spurge (Chamaesyce hooveri)
Otay Mesa-mint (Pogogyne nudiuscula)
Sacramento orcutt grass (Orcuttia viscida)
San Diego ambrosia (Ambrosia pumila)
San Diego button-celery (Eryngium aristulatum var. parishii)
San Joaquin orcutt grass (Orcuttia inaequalis)
slender orcutt grass (Orcuttia tenuis)
spreading navarretia (Navarretia fossalis)
thread-leaved brodiaea (Brodiaea filifolia)

Species with a Not Likely to Adversely Affect (NLAA) Determination

Birds

Southwestern willow flycatcher (Empidonax traillii extimus)
Yellow-billed cuckoo – Western DPS (Coccyzus americanus)

Mammal

San Bernardino Merriam’s kangaroo rat (Species only) (Dipodomys merriami parvus)

Plants

Howell’s spineflower (Chorizanthe howellii)
Palmate-bracted bird’s-beak (Cordylanthus palmatus)
Pedate checker-mallow (Sidalcea pedate)
Santa Ana River woolly-star (Eriastrum densifolium ssp. sanctorum)
Slender-horned spineflower (Dodecahema leptoceras)
Soft bird’s-beak (Cordylanthus mollis spp. Mollis)
Sonoma alopecurus (Alopecurus aequalis var. sonomensis)
Suisun thistle (Cirsium hydrophilum var.hydrophilum)

Activities covered

See Section 2.1.3. Eligible Project Types and Design Guidelines of the PBO, starting on page 25 (page 43 of the PDF) for the full description of eligible project types and design guidelines.

Improvements to stream crossings and fish passage – Projects to address upstream and downstream movement by fish and other species, and to improve functions of streams
Removal of small dams, tide gates, flood gates, and legacy structures – Projects to improve fish and wildlife migration, tidal and freshwater circulation and flow, and water quality
Bioengineered bank stabilization – Projects to reduce fine sediment input, enhance aquatic and riparian habitat, and improve water quality
Restoration and enhancement of off-channel and side-channel habitat – Projects to improve aquatic and riparian habitat for fish and wildlife
Water conservation projects for enhancement of fish and wildlife habitat – Projects such as off-stream storage tanks and ponds, and including necessary off-channel infrastructure, to reduce low-flow stream diversions
Floodplain restoration – Projects including levee, berm, and dike setback; breaching and removal; and hydraulic reconnection and revegetation to improve ecosystem function through hydrological connection between streams and floodplains
Removal of pilings and other in-water structures – Projects to improve water quality and aquatic habitat for fish and wildlife
Removal of nonnative terrestrial and aquatic invasive species and revegetation with native plants – Projects to improve aquatic and riparian habitat for fish and wildlife and improve other watershed functions
Establishment, restoration, and enhancement of tidal, subtidal, and freshwater wetlands – Projects to restore and improve ecological functions and services of tidal, subtidal, and freshwater wetlands, including actions to benefit vernal pools and managed wetlands
Establishment, restoration, and enhancement of stream and riparian habitat and upslope watershed sites – Projects to restore and improve ecological functions and services of streams and riparian areas

Exclusions

The following activities are not within the scope of the PBO, and will require separate authorization:

Use of gabion baskets
Use of cylindrical riprap (e.g., Aqualogs).
Construction of permanent dams or concrete-lined channels of any sort.
Use of chemically treated timbers used for grade or channel stabilization structures, bulkheads, or other instream structures.
Activities that substantially disrupt the movement of those species of aquatic life indigenous to the waterbody, including those species that normally migrate through the project areas.
Elimination of a riffle, pool, or riffle/pool complex that is not replaced/enhanced elsewhere by the project.
New water diversions that would cause listed aquatic species stranding (i.e., those without controls that provide functional separation of the species from the project supported by the new diversion), except to temporarily dewater a project site (some water conservation projects are allowed under the Proposed Restoration Effort [Section 2.1.3.5, Water Conservation Projects for Enhancement of Fish and Wildlife Habitat]) or for diversions associated with delivery or conveyance to and within managed wetlands as described in Section 2.1.3.9.
Installation of flashboard dams, head gates, or other mechanical structures that would cause listed aquatic species stranding are generally prohibited; however, there are exceptions for certain projects that require them to meet ecological goals (e.g., storage projects to reduce low flow stream diversions [Section 2.1.3.5, Water Conservation Projects for Enhancement of Fish and Wildlife Habitat], off-channel/side-channel, managed floodplain, and managed wetland habitat) and for the required replacement of legacy structures (Section 2.1.3.2 Removal of Small Dams, Tide gates, Flood gates, and Legacy Structures).
Creation or potential creation of a barrier to anadromous fish passage, as determined by the NMFS fish passage guidelines (including any associated maintenance activities, or lack thereof).
Use of excess riprap bank protection or hard armoring of banks, other than the minimum amount needed to achieve project goals, as determined by the Lead Action Agency in coordination with USFWS ES.
Installation of infiltration galleries.
Managed surrogate floodplain and managed returned flows that do not allow for volitional movement (ingress and egress) of fish to the main channel (up and/or downstream).
Projects that would result in a net loss of aquatic resource functions and/or services.
Projects that would result in a net loss of vernal pool habitat.
Projects that would result in a net loss of designated critical habitat function for any federally listed species. Loss of function is considered in the context of the physical and biological features as described in the respective critical habitat designation and includes abiotic and biotic resources and conditions necessary to support one or more life processes of the species.
Projects overlapping the current range of amphibians endemic to the Sierra Nevada (i.e., Sierra Nevada yellow legged frog, mountain yellow-legged frog (Northern California DPS), and Yosemite toad) that would extend the range of predatory fish (e.g., salmonids or centrarchids); because amphibians in the Sierra Nevada evolved mostly in the absence of predatory fish, the recovery of amphibians in the Sierra Nevada can be hindered by the presence of predatory fish.

Application Tips and Resources

Administrative Process Details

See the Administrative Process flowchart and Section 2.1.2. Administration of the PBO (starting on page 18, page 36 of the PDF) for more details about the application and post-construction reporting process.

The Federal Action Agencies will coordinate to evaluate project eligibility and to determine the role of Lead Action Agency for the proposed restoration project. The Lead Action Agency will vary depending on a project’s permitting and funding.

If the USFWS provides funding through one of its programs, such as the USFWS FAC, Refuge, Coastal, Central Valley Joint Venture, or Partners programs, USFWS will likely be the Lead Action Agency.
If a project is in a USFWS Refuge, USFWS will be the Lead Action Agency.
If NOAA RC provides funding through one of its programs such as the Community-Based Restoration Program or NOAA’s DARRP, then NOAA RC will likely be the Lead Action Agency.
USACE may serve as the Lead Action Agency if the project requires Clean Water Act Section 404 and/or Rivers and Harbors Act Section 10 and/or 408 authorization.

The Section 7(a)(2) Review Form is used to document metrics needed to calculate estimated incidental take so that the USFWS Field Office can identify the incidental take expected from the project and enter that estimate into a USFWS-maintained internal tracking tool.

The goal is that within 30 calendar days (and in no more than 60 days) of receiving a complete Review Form, the Lead Agency will:

review the Form for completeness;
if the Form is complete, submit the Form to the USFWS Field Office to request concurrence of coverage under the PBO, and
notify the Project Proponent if their Form is complete or incomplete. Response times will depend on the nature of the project and the amount of coordination that has occurred prior to submitting the Review Form.

Project Proponents are responsible for conducting all applicable project monitoring and reporting requirements prior to, during, and after project construction (e.g., revegetation monitoring, species rescue, and relocation reporting), and submitting the Post-construction Report Form to the Field Office and lead agency by December 1.

If there is ongoing revegetation or species monitoring beyond the report due date, a report will be provided annually on December 1 until success criteria have been met or monitoring has ceased.

In addition, the Field Office should be notified of all injury or mortality of listed species within 48 hours. The Post-construction Report Form will be used to document actual incidental take from the project.

Late Arriving Action Agency Process

In addition to the Action Agencies identified above and the multiple programs associated with these Action Agencies, this PBO may also provide section 7(a)(2) consultation coverage for federal agencies that are not a part of this programmatic consultation but later request to use the PBO for restoration actions they fund, oversee, or carry out. Such federal agencies are referred to as a “Late Arriving Action Agency.”

The Late Arriving Action Agency can choose to use the PBO or not. If they choose to use the PBO, they would need to ensure any restoration actions they propose to be covered by this PBO meet all the requirements of the PBO and coordinate with the USFWS to determine which of the following options are available:

If the USFWS Field Office concludes that no additional analysis, protection measures, or terms and conditions are necessary or appropriate, the USFWS Field Office could include the federal agency as a Late-Arriving Action Agency via formal correspondence indicating their participation in the Effort and potential to use the ESA Section 7(a)(2) Review Form process to potentially be covered by this PBO.
The USFWS Field Office could require the Late-Arriving Action Agency to initiate a new separate consultation with the USFWS Field Office, with some efficiencies potentially available by incorporating the PBO by reference in the new consultation, along with information specific to the Late-Arriving Action Agency and any new protection measures and terms and conditions.
The USFWS Field Office could recommend the use of other existing programmatic biological opinions or a combination of such biological opinions, if available and appropriate.
If additional analysis, incidental take, or terms and conditions are necessary or appropriate, the USFWS Field Office could reinitiate consultation to revise the PBO to accommodate the Late Arriving Action Agency. However, due to workload constraints, this option would not be the most efficient path.