The Endangered Species Acts Section 7 Consultation Requirement: Strategies and Tools

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The Endangered Species Acts Section 7
Consultation RequirementStrategies and Tools

• Cherise M. Oram
• Stoel Rives LLP
• Land Use in Washington
• April 17, 2007

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Todays 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 Its 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 Solicitors Opinion
• significant portion of its range

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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

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ESA Compliance Decision Tree
Private Party
Section 7 Consultation
Yes
Federal nexus?
No
Maybe
No
Taking of species or its habitat?
Take avoidance agreement (Service signature is
action triggering Section 7)

• No take letter
• (may assist with local permits, but no take
  coverage)

Yes
HCP (minimize mitigate no surprises)
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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

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Informal Consultation Summary
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Informal Consultation

• No biological opinion
• No incidental take authorization
• Biological assessment/evaluation and Services
  concurrence creates administrative record
  documenting that the action is not likely to
  adversely affect listed species or habitat

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When is Formal Consultation Required?
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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

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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

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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

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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
  projects 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.

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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.

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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 actions potential effects
  on opportunities for recovery, not just survival.

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Reviewing Biops 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.

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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

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Recent Case Law

• Defenders of Wildlife v. EPA (9th Cir. 2005)
• US Supreme Court oral argument today
• USFWS consulted on EPAs 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 agencys
  enabling statute precludes such action?
• Is EPAs 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.

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Recent Case Law

• National Wildlife Federation v. NMFS (9th Cir.
  2007)
• On April 9, Ninth Circuit upheld Judge Reddens
  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 agencys
  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 NMFSs jeopardy
  analysis. Services must now address twin goals of
  survival and recovery not just survival when
  evaluating an actions 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.

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Recent Case LawWhen 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 site-specific actions that
  would trigger Section 7

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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

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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, Natl Wildlife Federation,
  Environmental Defense, and numerous hunting and
  fishing groups
• Virtually identical to bill introduced by Sen.
  Crapo in Dec. 2006.

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Administrative Actions

• DOI Solicitors 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

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Questions?