The Endangered Species Act’s
Section 7 Consultation Requirement:
Strategies and Tools
Cherise M. Oram
Stoel Rives LLP
Land Use in Washington
April 17, 2007
Today’s Presentation
– Section 7 consultation
• Informal consultation
• Formal consultation
• The biological opinion
– Strategic considerations
• Initiating Consultation
• Reviewing the BiOp
– what to look for
– limiting conditions
• What if It’s Jeopardy?
– Recent Cases
• Defenders of Wildlife v.
EPA
• NWF v. NMFS
• California Sportfishing,
Western Watersheds,
Forest Guardians
• ONRC v. Allen
– Tax Break Bill
– DOI Regulations (leak)
– DOI Solicitor’s Opinion
• “significant portion of its
range”
Agency Roles
• U.S. Fish & Wildlife Service
– terrestrial and freshwater species, plants
• National Marine Fisheries Service
– marine species
• Charged with listing species, enforcing
the “take” prohibition, and consulting
with other federal agencies
ESA Compliance Decision Tree
Private Party
Federal nexus?
Yes
Section 7
Consultation
No
Take avoidance
agreement
(Service signature is
“action” triggering
Section 7)
Maybe
Taking of species
or its habitat?
Yes
HCP
(minimize & mitigate;
“no surprises”)
No
“No take” letter
(may assist with local
permits, but no take
coverage)
Section 7 Consultation
for Federal Actions
• 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
• Actions that may require section 7 consultation include:
– federal contracts, permits, licenses, authorizations, leases, or
funding
• Often involves an “applicant” seeking a permit or other
authorization
• Consultation can be “informal” or “formal” depending on
level of impacts
Informal Consultation Summary
Federal Action
No Effect = no consultation
“May Affect” Listed Species
Develop BA
Not likely to adversely affect
Service does not concur
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
• Biological assessment/evaluation and
Service’s concurrence creates
administrative record documenting that
the action is not likely to adversely
affect listed species or habitat
When is “Formal” Consultation Required?
Federal Action
No Effect = end of consultation
“May Affect” Listed Species
Develop BA
Not likely to adversely affect
Service does not concur
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, interrelated and interdependent effects
•
•
•
•
•
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
• Applicant plays a special role in consultation:
–
–
–
–
“designated non-federal representative”
provide data and information; review drafts
will implement conditions required as a result of consultation
get incidental take coverage
“Jeopardy” or “No Jeopardy” BiOp
• “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
Strategic Section 7 Considerations
• What can an “applicant” do to ensure that:
–
–
–
–
–
Action is properly considered
Best science is used
Biological opinion is defensible
Conclusion is “No Jeopardy”
Terms and conditions are properly limited
Early in the Consultation Process
• 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 Handbook at 4-32.
• Initiating consultation
– Applicants should ask to be designated as the non-federal rep
– Work with the Services to understand extent of project’s impacts
– Prepare own biological assessment/evaluation
• Allows you to clearly define the proposed action
• Establishes a record supporting a level of effects that the applicant
believes 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.
• May need to get creative to allow review.
What to Look for in a Draft BiOp
• Proposed species/habitat is evaluated
• Service avoids assuming very uncertain positive
impacts of mitigation
– Relying on uncertain benefits makes biop vulnerable.
– If positive effects are not realized, Service may reinitiate.
• Where there are data gaps or uncertainties, Service
errs conservatively in favor of the species
– If the worst case is true, the biop still covers the action.
• Analysis addresses the action’s potential effects on
opportunities for recovery, not just survival.
Reviewing Biop’s Conditions
• A BiOp includes an “incidental take statement”
– describes amount and extent of anticipated incidental take
– authorizes that take
– imposes terms and conditions to minimize or monitor
impacts of that take.
• Terms and conditions
– “cannot alter the basic design, location, scope, duration or
timing” and
– “may involve only minor changes.”
• They must either minimize or monitor the effects of
incidental take – they cannot impose broad study
requirements or mitigation.
What to do when you hear
“Jeopardy”
• If draft is jeopardy opinion
– Stop the process
– Work with the Services to revise the action to avoid jeopardy
– Alternative is allowing jeopardy opinion to issue with “Reasonable
and Prudent Alternatives” (RPAs) designed by the Services
• Benefits of revising to meet “no jeopardy” standard
– Keeps you in control of action and how it is revised to avoid
jeopardy
• RPAs that Services propose are 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
Recent Case Law
– Defenders of Wildlife v. EPA (9th Cir. 2005)
• US Supreme Court oral argument today
• USFWS consulted on EPA’s transfer of CWA 402(b) NPDES permit program to
Arizona
• Concluded “no jeopardy” -- but evaluation did not consider effects from third party
development on basis that EPA did not have authority over those actions
• Court held that ESA “independently empowers” EPA to consider listed species
issues when making the transfer decision, regardless of limits on discretion or
authority under CWA
• US Supreme Court considering:
– Whether ESA is an independent source of authority requiring federal agencies to take
actions to benefit listed species even when the agency’s enabling statute precludes such
action?
– Is EPA’s approval of the program the legally relevant cause of impacts from future private
land use activities?
– Court also asked parties to address whether appeals court should have remanded once
it determined EPA had relied on inconsistent interpretations of the ESA.
Recent Case Law
– National Wildlife Federation v. NMFS (9th Cir. 2007)
• On April 9, Ninth Circuit upheld Judge Redden’s decision invalidating
2004 NMFS biop for the Federal Columbia River Power System
(FCRPS)
• Court held that 2004 BiOp was “little more than a sleight of hand,
manipulating the variables to achieve a ‘no jeopardy’ finding.”
• NMFS must evaluate all impacts of an action, not merely those deemed
with the action agency’s “discretion.” (Note that agencies do not need
to consult on the basic existence of an existing structure.)
• Where species already “in jeopardy” from baseline conditions, project
may be approved if it removes or lessens degree of jeopardy, but may
not be approved if it will “deepen the jeopardy” with additional harm
• Court upheld extension of Gifford Pinchot Task Force v. USFWS (9th
Cir. 2004) to NMFS’s jeopardy analysis. Services must now address
twin goals of survival and recovery – not just survival – when evaluating
an action’s potential effect on a listed species’ critical habitat. Court
noted that injury to recovery would result in jeopardy only in
“exceptional circumstances” where there is “significant impairment of
recovery efforts or other adverse effects.”
Recent Case Law:
When is Section 7 Triggered?
– California Sportfishing Protection Alliance v. FERC (9th Cir. 2006)
• FERC is not obligated to initiate consultation for continued operation of
a licensed hydro project that may affect a newly listed species
• Absent affirmative action, and despite license “reopener,” FERC is not
obligated to consult.
• Court did not get to whether reinitiation would be required if FERC had
an existing biop.
– Western Watersheds Project v. Matkeko (9th Cir. 2006)
• BLM is not obligated to consult over ongoing easements
• “Affirmative agency action” required to trigger Section 7
– Forest Guardians v. Forsgren (10th Cir. 2007)
• Previously-issued USFS forest plan is not an ongoing agency action
requiring Section 7 consultation because there is no “affirmative” action
• Forest plans guide USFS decisions authorizing timber harvests, road
easements, and other site-specific actions
• Court distinguished planning documents like forest plans from sitespecific actions that would trigger Section 7
ONRC v. Allen (9th Cir. 2007)
• Ninth Circuit invalidated ITS authorizing proposed
timber harvest
• Under Gifford Pinchot, underlying BiOp was invalid
(failed to consider “recovery”) – ITS must be
associated with underlying valid BiOp
• ITS used habitat surrogate for amount of “take”
anticipated, allowed take of all northern spotted owls
in timber harvest area
• Court said surrogates can be used, but must be
measurable and provide some analyzed limit on take
so that reinitiation is required if conditions triggered
Legislative Action
– Tax Break Bill
• On February 28, Senate Finance Committee leaders introduced
legislation (Sens. Baucus, Crapo) – would amend Internal Revenue
Code, an ESA
• Would provide tax incentives to private landowners to help protect
endangered species on their property
– Easement credit available to those who enter into agreement to protect
habitat; must be agreement with federal or state government, not with
conservation group
– Agreement would include management plan to restore, enhance or manage
habitat to reduce threats; must be approved by NMFS or USFWS
– Perpetual easement would allow credit for entire difference in property value
and 100% restoration costs
– 30-year easement would allow credit for 75% of difference in property value
and 75% of restoration costs
• Bill would also provide tax deduction for implementing species recovery
plans
• Supported by broad coalition – American Farm Bureau Federation,
Nat’l Wildlife Federation, Environmental Defense, and numerous
hunting and fishing groups
• Virtually identical to bill introduced by Sen. Crapo in Dec. 2006.
Administrative Actions
•
DOI Solicitor’s Opinion defining “significant portion of its range”
– ESA defines “endangered” as species “in danger of extinction throughout all
or a significant portion of its range”
– Services say this means current range, not historic range
– Gives Services flexibility in defining what portion of a range is significant;
may consider factors other than size of range
– Critics: focuses only on remaining populations, ignores opportunities to
recover species into historic habitat; lacked public review and comment.
•
Center for Bio. Div. leaked draft of DOI regulatory changes that would:
– give States key functions: listing, critical habitat, Sec. 7, recovery plans
– allow States to veto species reintroduction
– eliminate “recovery” by defining “jeopardy” as action that “appreciably
increases the risk of extinction;” “recovery” from de-listing criteria
– focus listing decisions on current (not historic) range
– require Section 7 for planning documents at adoption only (no reinitiation)
– during reinitiation, allow business as usual; apply statutory prohibition on
actions during consultation to new consultations, not reinitiations
– clarify that existing ITS (and thus take authorization) apply during reinitiation
Questions?