The Endangered Species Act’s Section 7 Consultation Requirement:

Strategies and Tools

Cherise M. Oram

Stoel Rives LLP

Permitting StrategiesMay 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

– 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?

Taking of species or its

habitat?

HCP orConservation Agreement

Section 7 Consultation

Take avoidance agreement

“No take” letter

Maybe

No

Yes

No

Yes

No Take; Take Avoidance

• No Take Letter– 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:– 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– “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 Likely to adversely affect

Service does not concurs

Go to Formal Consultation

Go to Formal ConsultationService concurs

End of Informal 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 Likely to adversely affect

Service does not concurs

Go to Formal Consultation

Go to Formal ConsultationService concurs

End of Informal 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 No Jeopardy

Implement Action with RPMs, Terms & Conditions

Stop Action

Implement RPA

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 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. Proposed Action

• 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

• 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