Series 1: Interagency Cooperation (Section 7)
By Patricia Valcarcel, Senior Biologist and ESA Specialist
On July 25, 2018, the U.S. Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration Fisheries (collectively, Services) published three proposed revisions to Endangered Species Act (ESA) regulations. On August 27, 2019, the Services published the final rules on these revisions. The changes have the potential to affect ESA consultation timelines, delisting of species, designation of Critical Habitat, and whether species listed as threatened in the future will even receive take protection, to name a few. We will address the revisions in a two-part blog series on how the rule changes may impact projects for WRA clients and strategic partners. The first blog in the series reviews the final rule on “Interagency Cooperation” or consultations under Section 7 of the ESA.
Summary of Changes for Agency Cooperation and Efficiency
Many of the revisions were intended to add clarity to existing procedures and practices, but two new paragraphs are added to the regulations in this final rule. The additional clarity and added language is aimed at improving the efficiency of process and delivery of Section 7 Biological Opinions that are sometimes required when seeking permits or authorizations from Federal agencies (e.g., Clean Water Act permits from the U.S. Army Corps of Engineers). We have broken these down in to the following five topics.
1) Clarifying the definition of “destruction or adverse modification” as it relates to Critical Habitat. The definition is “Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.” The phrase “as a whole” was added to clarify the scale that should be assessed when determining whether a project would affect Critical Habitat. A project that affects a portion of designated Critical Habitat but that does not affect the entirety of that species’ designated Critical Habitat may not result in a determination of “adverse modification.” Although the definition has been modified, the Services emphasize that the rule does not change the scope of analysis for evaluating effects nor what constitutes destruction of adverse modification. Although this rule is intended to clarify existing practice, several environmental and other groups have stated this revision in language is significant and a full environmental review should have been conducted. Legal challenges were filed last week, but regardless of legal challenges, this definition is unlikely to change existing practice in evaluations of destruction or adverse modifications in the near term.
2) Revising the definition of “effects of the action”. The final rule is similar to the proposed in that there are major revisions to the terminology of the effects that are analyzed, but the scope of analysis is to remain unchanged. All effect categories, direct and indirect effects and the effects of interrelated and interdependent actions, are combined such that there are no subcategories. Simply put, one just analyzes the “effects”. The final rule added the term “consequences” to replace the word “effect” in its definition. The term “but for” causation previously used to help explain interrelated and interdependent effects has been added to ensure that consequences which occur as a result of the proposed action are still analyzed. Effects need to be “reasonably certain to occur” and clarification of this phrase and factors to consider when evaluating if an effect is reasonably certain to occur, has been added to the rule. In essence, although the terminology has been updated, there should be no change in analysis of effects.
Environmental baseline has also been pulled out from the definition of “effects” and it is now a stand-alone definition. There is also clarification on when ongoing activities should be included in the environmental baseline and when those activities may need to be included as part of the proposed action.
3) Clarifying the information necessary in formal consultation. In an effort to facilitate a more streamlined consultation process with reduced need for back-and-forth communication between applicants, agencies, and the Services, the final rule provides clarification on what information is needed by the Services to initiate formal consultation. The changes indicate that the goal is not to request additional information, but to simply provide better guidance for what information is needed to shorten consultation timelines. There is also opportunity to use documentation prepared for National Environmental Policy Act review as part of an initiation package provided that the information needed by the Service(s) is included. The rule also adds language to clarify Biological Opinions so that “measures included in the proposed actions or a reasonable and prudent alternative which are intended to avoid, minimize, or offset the effects of an action are considered like other portions of the action and do not require any additional demonstration of binding plans.” Similar to the proposed action, the analysis of effects is conducted assuming the action will be implemented as described including implementation of measures. Information and detail sufficient to conduct the analysis of effects is needed; however, demonstration of resource commitments is not required before accounting for the measures in the analysis.
4) Deadline for informal consultation. Informal consultation can include technical assistance or a request for concurrence that a proposed action is not likely to adversely affect a listed species or its critical habitat. Previously there was no deadline for the Services to respond to a request for concurrence from a Federal agency. The final rule establishes a 60-day timeline in which the Service shall respond to a written request. As there may be technical assistance or other informal conferences that occur as part of informal consultation, the timeline does not begin until the Service receives a written request for concurrence. This timeframe can be extended upon mutual consent for up to an additional 60 days.
5) Expedited consultations. A new provision has been added which creates a new category “expedited consultations,” in which a Federal agency and the Service(s) enter a mutual agreement and specify timelines for the consultation. This process is anticipated to require early coordination with the Service to ensure all necessary information is submitted in the initiation package in order to streamline the consultation. It is likely to be targeted for conservation or restoration actions; however, it is a decision to be made between the Federal agency and the Service if an action is appropriate for an expedited consultation.
You can view the final rule here with more specific language, examples, and reasoning behind the Services decisions. Much of the final rule is unlikely to change how projects are reviewed and analyzed by the Services in Section 7 consultations. We hope this brief summary aides our clients and teaming partners in understanding the general topics and scope of the new rule. The final rule has been published in the Federal Register and will be effective on September 26, 2019. However, recently filed lawsuits that include the interagency coordination rule may result in injunctions and there may be changes to the effective date on portions or all of the final rule.
WRA’s regulatory staff is staying apprised of the changing rules and is in communication with agency staff for the most recent guidance. We are ready to assist in interpreting these revisions and how they may affect current projects or approaches for complex situations. For additional information or assistance with the final rules, contact WRA’s ESA specialist Patricia Valcarcel.