Endangered Species Act Basics &
Section 7 Consultation Strategies
for Hydropower Relicensing & License Amendments
Cherise M. Oram
Stoel Rives LLP
Hydropower Relicensing
Portland, Oregon
May 31, 2006
Today’s Presentation
• Section-by-section review • Strategic section 7
considerations
– Listing
– The proposed action
– Take prohibition
– Early discussions
– Section 7 Consultation
– Initiating consultations
• Informal consultation
• Formal consultation
• The biological
opinion
– 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
Action Agencies
• Federal Energy Regulatory Commission
• Corps
• Forest Service
Consulting Agencies
• 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/ESU
– Genetically distinct
– Geographically discrete
Critical habitat (Section 4)
• 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.
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)
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 and
recover in the wild
– adversely destroy or modify critical habitat
ESA “Applicant” = License 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:
– FERC licenses, Corps 404 permits, USFS actions to
implement enhancement funds on forest lands
• 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
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
• 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:
– 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 (licensee) and action
agency (FERC) define 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 FERC or other action agency.
50 C.F.R. § 402.14(g)(5).
• When Service shares draft with FERC, FERC posts to
docket – this is unique to hydro.
• Nothing in the statute or regulations prohibits Services
from sharing with the licensee directly.
• Exchange would be subject to FOIA and part of
administrative record.
• Sharing directly allows licensee 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.
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
– extended Gifford Pinchot finding to same language in definition of
“jeopardy”
– BiOps must evaluate effects to species’ opportunity to recover
Environmental
Baseline
vs.
• Should Include:
– Past actions
– Past effects of a proposed
action that is being
re-approved (e.g., past ops)
– Past and future effects of
existing structures (dams)
• Service considers impact in
conducting overall analysis
• But effects are not attributed
to proposed action
Proposed Action
• Includes all future effects of
action being analyzed
• For actions being
re-authorized, considers
effect of continuing action for
term of next permit/license –
not just incremental change
from previously authorized
action
• Terms and conditions
imposed to minimize effects
of action’s incidental take
What to do when you hear
“Jeopardy”
• If draft is jeopardy opinion, generally wise to:
– Stop the process
– Work with the Services
– Revise proposed action to avoid jeopardy
• Benefits of revising to meet “no jeopardy” standard:
– RPA that Service proposes as a result of “jeopardy”
determination may include significant actions required to
avoid jeopardy -- and is not limited to minor changes
– Revising proposed action keeps you in control of action and
how it is revised 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