Transcript No Slide Title

The Endangered Species Act’s
Section 7 Consultation Requirement:
Strategies and Tools
Cherise M. Oram
Stoel Rives LLP
Permitting Strategies
May 11, 2006
Today’s Presentation
• Section-by-section review
– Listing
– Take prohibition
• Compliance decision tree
• No take/take avoidance
– Habitat Conservation
Plans
– Section 7 consultation
• Informal consultation
• Formal consultation
• The biological opinion
• Strategic section 7
considerations
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The proposed action
Early discussions
Initiating consultations
Reviewing the BiOp
Proposed species/habitat
Effects analysis
• Important components
• Recovery standard
• Environmental baseline
– What if it’s Jeopardy?
– Terms and conditions
– Reinitiation language
Agency Roles
• U.S. Fish & Wildlife Service
– terrestrial and freshwater species,
plants
• National Marine Fisheries Service
– marine species
Species Listing (Section 4)
• Any taxonomic species
– Fish
– Wildlife
– Plants
• Distinct population segment
– Genetically distinct
– Geographically discrete
Critical habitat
• Essential for conservation of the
species
• May include unoccupied habitat
• One of the few parts of the ESA
that involves economic analysis
• Has regulatory teeth only in the
Section 7 consultation context
Take Prohibition (Section 9)
• Section 9 prohibits a person from
taking an endangered species.
• By regulation, the applicable
Service can apply the Section 9
take prohibition to threatened
species (and usually do). This is a
“4(d) Rule”.
What is a “take”?
• “Take” mans to harass, harm, hunt, wound
capture or kill a species, or attempt to do any of
those things.
• “Harm” means an act which “actually kills or
injures wildlife,” including “significant habitat
modification or degradation where it actually kills
or injures wildlife by significantly impairing
essential behavior patterns, including breeding,
spawning, rearing, migrating, feeding and
sheltering.”
• Take is subject to civil and criminal penalties.
Example of “harm”
• NMFS has provided examples of harm
to salmon:
– Removing water or altering stream
flow when it is likely to impair
spawning, migration or other essential
functions.
– Constructing or maintaining barriers
that eliminate or impede a listed
species access to habitat.
Direct Take Authorization
For studies, hatchery broodstock
collection, mitigation and
enhancement actions, etc.
–Scientific research permit
–Enhancement permit
Incidental take authorization
Two ways to obtain incidental take
authorization:
• Formal section 7 consultation
• Section 10 habitat conservation
plan (HCP)
ESA Compliance Decision Tree
Private Party
Federal nexus?
Yes
Section 7
Consultation
No
Take avoidance
agreement
Maybe
Taking of species
or its habitat?
Yes
HCP or
Conservation Agreement
No
“No take” letter
No Take; Take Avoidance
• No Take Letter
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Infrequent
Service concurs that actions will not risk taking species
No take coverage
May assist with local permitting
Builds record that action is not harmful
• Take Avoidance Agreement
– Agree to avoid actions that may take
– Service signs = “action” requiring Section 7 consultation
– Get take coverage through Section 7 consultation process
Habitat Conservation Plans (Sec. 10)
• For private actions where take authorization
is needed or where actor wants “assurances”
• Section 10 authorizes issuance of incidental
take permit (ITP) for “taking otherwise
prohibited by [section 9] if such taking is
incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity.”
HCP Contents and Issuance Criteria
• Applicant must submit HCP that specifies:
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likely impact
minimization and mitigation measures
available funding
alternatives considered
any other measures deemed necessary by the Service
• Service may approve HCP and issue ITP if:
– taking will be incidental
– applicant will minimize and mitigate impacts to the maximum extent
practicable
– funding is adequate
– taking will not appreciably reduce likelihood of survival & recovery
Assurances
• HCP should set forth foreseeable future “changed
circumstances” and agreed-upon responses to those
changes.
• For any “changed circumstances” not provided for in
the HCP, the Service may not require additional
conservation or mitigation measures.
• For “unforeseen circumstances,” the Service may
require modifications to implementation of the HCP,
but may not require commitment of additional land,
water, or financial compensation, or additional
restrictions on use of land, water or other natural
resources beyond agreed-upon levels in HCP.
HCP Summary
Negotiation with USFWS
and/or NMFS, applicant
and involved parties
HCP prepared by applicant
USFWS/NMFS issues Incidental Take Permit
Applicant implements action with conservation measures
Federal Consultation (Section 7)
• Section 7 requires a federal action agency to
ensure that any action it
– “authorizes,” “funds” or “carries out” and
– that “may affect” listed species
• Is not likely to
– jeopardize listed species by appreciably reducing
the likelihood it will survive & recover in the wild
– adversely destroy or modify critical habitat
Applicant
• An “applicant” is defined as:
– Any person who requires formal approval or authorization
from a federal agency
• Actions that may require section 7 consultation include:
– federal contracts, permits, licenses, authorizations, leases, or
funding
• Special role in consultation
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“designated non-federal representative”
provide data and information; review drafts
will implement conditions required as a result of consultation
get incidental take coverage
Initial Consultation Process
• Agency action, “may affect” determination
• Preparation of biological assessment/evaluation by
– Action agency or
– Applicant as “designated non-federal representative”
• Submit BA/BE to Service with either:
– “likely to adversely affect” and request for formal consultation
• GO TO FORMAL CONSULTATION
– “no likely to adversely affect” and request for concurrence
• INFORMAL CONSULTATION CONCLUDED
Informal Consultation Summary
Federal Action
No Effect = end
May Affect
Develop BA
Not likely to adversely affect
Service does not concurs
Service concurs
Go to Formal Consultation
End of Informal Consultation
Likely to adversely affect
Go to Formal Consultation
Informal Consultation
• No biological opinion
• No incidental take authorization
• Exchange of BA/BE and concurrence
creates administrative record
documenting that Service analyzed
issue and the action is not likely to
adversely affect the species or habitat
When is “Formal” Consultation Required?
Federal Action
No Effect = end
May Affect
Develop BA
Not likely to adversely affect
Service does not concurs
Service concurs
Go to Formal Consultation
End of Informal Consultation
Likely to adversely affect
Go to Formal Consultation
Formal Consultation: the BiOp
• Evaluates effects of action
– Includes indirect effects
– Includes interrelated and interdependent effects: part of a larger
action and depend on the larger action for their justification; have
no independent utility apart from the action under consideration. 50
C.F.R. § 402.02
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Considers environmental baseline
Considers cumulative effects (future state & private actions)
Includes “conference” on proposed species
Results in a “jeopardy” or “no jeopardy” determination
Results in “adverse modification” or “no adverse modification”
for critical habitat
“No Jeopardy” BiOp
• Allows the action to move forward
• Includes “Reasonable & Prudent Measures”
• “Terms & Conditions” implement the RPMs
– Cannot change the scope, duration, timing,
location
– Cannot result in more than a “minor” change
• Authorizes Incidental Take
“Jeopardy” BiOp
• Action agency cannot move forward with
action as is
• Service can propose “Reasonable and
Prudent Alternative” (RPA)
• RPA must be reasonable, feasible
• RPA can require more than minor changes
• If no RPA, action cannot move forward
Formal Consultation Summary
Likely to Adversely Affect
Service Prepares BiOp
Jeopardy
Stop Action
Implement RPA
No Jeopardy
Implement Action with
RPMs, Terms & Conditions
Reinitiation of Consultation
• Required if action agency has retained discretion
and:
– The amount or extent of incidental take is
exceeded
– New information reveals effects not previously
considered
– Action modified in a way that effects species or
habitat
– New species listed or habitat designated that may
be affected
Strategic Section 7 Considerations
• What can an “applicant” do to ensure that:
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Action is properly considered
Best science is used
Biological opinion is defensible
Conclusion is “No Jeopardy”
Terms and conditions are properly limited
What is your proposed action?
• The applicant and action agency define
the proposed action.
• “The Services can evaluate only the
Federal action proposed, not the action
as the Services would like to see that
action modified.”
-- Joint Endangered Species
Consultation Handbook at 4-32.
Early discussion with Service
• Important to work with the Service early to
understand the likely effects.
• If it’s likely a “no jeopardy” conclusion, there
is little reason to modify the proposed action.
The Service will impose terms and conditions
to minimize any incidental take.
• If it may be a “jeopardy” conclusion, work to
modify your proposed action to reduce the
possibly jeopardizing effects.
Initiating consultation
• Applicants: prepare your own biological
assessment/ evaluation.
– Allows you to clearly define the proposed action.
– Establishes a record supporting the effect levels
you believe are appropriate.
Reviewing the BiOp
• Regulations allow licensee to request draft biop
and provide comments through action agency.
50 C.F.R. § 402.14(g)(5).
• Nothing in the statute or regulations prohibits
Services from sharing with the applicant directly.
• Exchange would be subject to FOIA and part of
administrative record.
• This allows the applicant to work with the Service
to provide the special input contemplated by
regulations.
Proposed Species & Habitat
• Include species and critical habitat that is
proposed for listing.
• This minimizes opportunities for reinitiation
later when those species are listed or habitat
is designated.
• Service simply confirms upon listing/
designation that the biop’s analysis still
applies.
Effects Analysis
• Where there are data gaps or uncertainties, Service
must make assumptions about effects.
• Avoid assuming very uncertain positive impacts of
mitigation.
– Makes biop vulnerable to challenge.
– If positive effects are not realized, Service may reinitiate.
• Instead err conservatively in favor of the species. If
the worst case is true, the biop still covers the action.
• Make sure analysis addresses action’s potential
effects on opportunities for recovery.
Recovery and You
• Recovery plans
– No deadlines for issuing plans
– Not action forcing on their own
– Include site-specific management actions
necessary to achieve species conservation and
survival
– Builds record that guides other actions – HCPs,
permitting, grant funding, etc.
Role of Recovery in BiOps
• Gifford Pinchot Task Force v. USFWS
– Invalidated Services’ definition of “adversely modifying or
destroying” critical habitat as occurring when action appreciably
reduces habitat value for both survival and recovery
• Reduction of recovery alone was not sufficient under regulations
• Resulted in keeping focus on survival
– Evaluation of critical habitat impacts must consider whether action
diminishes habitat values for both survival and recovery
• Puts focus on both survival and recovery
• National Wildlife Federation v. NMFS
– National Wildlife Federation v. NMFS: extended Gifford Pinchot
finding to same language in definition of “jeopardy”
– BiOps must evaluate effects to species’ opportunity to recover
Environmental
Baseline
vs.
• Includes
– Past actions
– Past effects of a proposed
action that is being
re-approved
– Past and future effects of
existing structures
• Service considers impact in
conducting overall analysis
• Effects are not attributed to
proposed action
Proposed Action
• Includes all future effects of
action being analyzed
• For actions being
re-authorized
– Not just incremental change
from previously authorized
action
– Considers effect of
continuing action for term of
next permit/license
• Terms and conditions
imposed to minimize effects
of action’s incidental take
What to do when you hear
“Jeopardy”
• If draft is jeopardy opinion
– Stop the process
– Work with the Services
– Revise proposed action to avoid jeopardy
• Benefits of revising to meet “no jeopardy” standard
– Keeps you in control of action and how it is revised to avoid
jeopardy
• Reasonable and Prudent Alternative that Service proposes is
not limited to minor changes
• RPAs may include significant actions required to avoid jeopardy
– Revising action to avoid jeopardy builds better record for
future litigation than defending RPA
RPMs and T&Cs
• An RPM is an action the Service believes is
“necessary or appropriate to minimize the impacts,
i.e., amount or extent, of incidental take.”
– 50 C.F.R. § 402.02
• RPMs and terms and conditions “cannot alter the
basic design, location, scope, duration or timing” and
“may involve only minor changes.”
– 50 C.F.R. § 402.14(i)(2)
• An RPM or T&C must either minimize or monitor the
effects of incidental take.
– 50 C.F.R. § 402.14(i)(2), (3)
Things to watch for:
• RPMs or T&Cs that go beyond basic design, location,
scope, duration or timing.
• RPMs or T&Cs that involve more than minor changes
to the proposed action.
• RPMs or T&Cs aimed at extensive studies rather
than just monitoring to ensure compliance with
authorized take level.
• Mitigation measures (the Service can only require
minimization).
Reinitiation Language
• Services generally include the following language from their
Handbook:
“In instances where the amount or extent of incidental take
is exceeded, any operations causing such take must cease
pending reinitiation.” Handbook at 4-60.
• Operations need only be modified if the additional take
constitutes an “irreversible or irretrievable commitment of
resources … which has the effect of foreclosing the formulation
or implementation of reasonable and prudent alternatives” to
jeopardy. 16 U.S.C. § 1536(d).
• Suggest removing language, working with Service to determine
effect of exceeding take if it occurs.
Strategic Lessons
• Applicant should keep control over the proposed action.
• Work toward a “no jeopardy” biop.
• Ensure the effects analysis is realistic (even cautious) to avoid
reinitiation later.
• Question how the effects of existing structures are considered.
• Evaluate effects on proposed species/habitat.
• Consider effects of action on species’ opportunities for recovery.
• Ensure that RPMs and T&Cs are limited to minimizing and
monitoring and involve no more than minor changes.
• Be an active participant in the consultation process to protect
your interests, insist on the best science, and build a defensible
record that supports your action