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Biological Opinions & Endangered Species Act Consultation A How To Guide for Working with Agencies on ESA IssuesMATTHEW A. LOVEPartner- Seattle, WashingtonFebruary 19, 2013Portland, ORESA Seminar - Anchorage, Alaska2The Purpose of the ESAThe ESA, passed by Congress in 1973, is designed to protect critically imperiled species from extinction. Administered by:Department of Commerce National Marine Fisheries Service (NMFS)Authority over marine speciesDepartment of Interior U.S. Fish and Wildlife Service (USFWS)Authority over freshwater fish and all other speciesThe most comprehensive legislation for the preservation of endangered species ever enacted by any nation. Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978).

2- ESA protects both the species and the ecosystems upon which they depend.

Biological Opinions & Endangered Species Act Consultation Portland, OR3The Endangered Species Act (ESA)

Section 4 Listing Process and Critical Habitat DesignationsSection 7 Consultation RequirementsSection 9 Take ProhibitionSection 10 Incidental Take and Habitat Conservation PlansSection 11 Enforcement

Biological Opinions & Endangered Species Act Consultation Portland, OR4Overview of ESA Section 7ESA Section 7s substantive and procedural obligationsInitiation of Section 7 consultationRoles of action agency, resource agency, and the license applicant (as designated non-federal representative)Section 7 consultation processBiOps, ITS, RPAs, RPMs, and TCsReinitiation of consultation

NWHA Annual Conference - Portland, Oregon5Section 7s Substantive Obligation5Biological Opinions & Endangered Species Act Consultation Portland, OR6Section 7s Substantive ObligationESA 7(a)(2):

Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [Critical Habitat].

Tennessee Valley Authority v. Hill (1978): One would be hard-pressed to find a statutory provision whose terms were any plainer than those in 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of an endangered species or result in the destruction or modification of habitat of such species. . . . This language admits of no exception.

In issuing a license, FERC has a substantive obligation under Section 7 not to jeopardize the continued existence of a species.6NWHA Annual Conference - Portland, Oregon7

Section 7s Procedural Obligations7Biological Opinions & Endangered Species Act Consultation Portland, OR8What is Involved in a Section 7 Consultation?Threshold considerationsBiological assessmentInformal consultationFormal consultationBiological opinionIncidental take statement

Biological Opinions & Endangered Species Act Consultation Portland, OR9 The Informal Consultation Process

Discretionary Federal Actions:

Natl Assn of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007)

Action is broadly defined as all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. 50 C.F.R. 402.02.

Ongoing agency actions

9Biological Opinions & Endangered Species Act Consultation Portland, OR10INFORMAL CONSULTATIONFederal Agency ActionMajor Construction ActivityBiological AssessmentNo EffectNot Likely to Adversely Affect

Federal Agency Action

Informal Consultation If no effect, consultation ends

Major construction activities trigger BA preparationThose construction projects, or other undertakings having similar physical impacts, that are major federal actions significantly affecting the quality of the human environment as referred to in NEPA. 50 C.F.R. 402.02.BA evaluates potential effects of the action on listed species and designated critical habitat in the action area

Must use best scientific and commercial data available

Role of non-federal representative

NEPA documents

Not Likely to Adversely AffectInformal discussion between Service and action agency to determine if formal consultation requiredIf action is not likely to adversely affect listed species or critical habitat, consultation endsService issues written concurrence

10Biological Opinions & Endangered Species Act Consultation Portland, OR11 The Formal Consultation Process

Biological Opinions & Endangered Species Act Consultation Portland, OR12FORMAL CONSULTATIONInitiation of Formal ConsultationBiological Opinion

Initiation of Formal Consultation Required if proposed action is likely to adversely affect listed species or critical habitatUnder Section 7(d), no irreversible or irretrievable commitment of resources that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures

Proposed action Environmental baselineStatus of the species in the action areaFactors affecting species within the action areaAnalysis of effects Direct effectsIndirect effectsCumulative effectsJeopardy determination Incidental take statement (ITS)Conservation recommendations

12Biological Opinions & Endangered Species Act Consultation Portland, OR13Biological OpinionProposed action Environmental baselineAnalysis of effects Jeopardy determination Reasonable and prudent alternative (RPA)Incidental take statement (ITS)Conservation recommendations

Proposed action Environmental baselineStatus of the species in the action areaFactors affecting species within the action areaAnalysis of effects Direct effectsIndirect effectsCumulative effectsJeopardy determination Jeopardy occurs when an action can reasonably be expected to appreciably reduce the likelihood of both the survival and recovery of a listed species in the wildAdverse modification of critical habitat is direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of a listed speciesReasonable and prudent alternative (RPA)Incidental take statement (ITS)If incidental take likely, BiOp must include ITS ITS contains:Amount and extent of take Numerical amount or surrogateAdequate monitoring and reporting requirementsReasonable and prudent measures (RPM) and terms and conditions (TC)If incidental take likely, BiOp must include ITS

Conservation recommendations

13Biological Opinions & Endangered Species Act Consultation Portland, OR14Reinitiating ConsultationWhen action agency retains discretionary control, it has continuing obligation to reinitiate consultation if:the incidental take statement is exceeded; new information reveals new effects of the action; action is subsequently modified; ornew species is listed or critical habitat designated

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Keys to SuccessFor more informationMATTHEW A. LOVE206-829-1809mal@vnf.com719 Second AvenueSuite 1150Seattle, WA 98104February 19, 2013Portland, OR