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Endangered Species Act Amendments: Table of Contents for this Section Under current § 7(a)(2) and (3) of the ESA, federal agencies are required to consult with the Secretary of the Interior (acting through the Fish and Wildlife Service) or with the Secretary of Commerce (acting through the National Marine Fisheries Service) to insure that any action authorized, flinded, or carried out by the agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of a listed species, unless the agency has been granted an exemption under the Act. In fulfilling the requirements of this paragraph, each agency shall use the best scientific and commercial data available. Because "actions authorized, funded, or carried out" may include private actions that receive federal authorization or funding, § 7 consultations may include private as well as federal actions whenever the private actions have a federal nexus. This fact is expressly acknowledged in § 7(a)(3). Under § 7(a)(4), agencies are to "confer" (a less formal process) with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under § 4 or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. To determine whether consultation is necessary, an agency may ask the Secretary whether listed species might be in the affected area; if so, the action agency conducts a "biological assessment" to determine the presence of species that might be affected by the proposed action. This assessment may be done as part of the preparation of documents under the National Environmental Policy Act (NEPA). When an agency consults, the Secretary provides the agency and the applicant, if any, a written statement the biological opinion - detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse modification of critical habitat is found, the Secretary suggests reasonable and prudent alternatives to the action, which the Secretary believes can be taken to avoid jeopardy. If the Secretary fmds the proposed action will not jeopardize a species and that any takings will be incidental to the agency action, the Secretary will issue a statement that specifies the impacts of such incidental taking and specifies reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize impacts. From the time consultation begins, the federal agency and the applicant are not to make any irreversible or irretrievable commitment of resources that could foreclose the formulation of alternatives. In practice, jeopardy opinions result from less than one or two per cent of all consultations and in most cases, alternatives are available that allow the action agency to proceed. Thus, the consultation process provides for a biological.z:eview of agency actions by a separate agency (either the FWS or NMFS) through procedures that have been praised by some as an effective protective process and condemned by others as a time-consurning impediment. Proposals for change have ranged from doing away with all outside-agency review to better integration of the consultation process with agency decision-making. Recent administrative efforts have been undertaken to better integrate the consultation process and other environmental reviews with agency planning and decision-making processes to make them run concurrently whenever possible and to shorten the time required for reviews. The success of these efforts will depend at least in part on the availability of adequate personnel at the FWS and NMFS. Some observers have asserted that, in addition to or as a substitute for the § 10 permit process, some greater access to consultation would be helpful to private landowners.
Section 4 of the bill addresses interagency consultation and cooperation (pp. 130-142) and would add a definition of "reasonable and prudent alternatives" to § 3 of the ESA that would enact the definition of that phrase that is currently in the regulations .25 There currently is no statutory definition of this phrase. Section 4(b) of the bill (p. 131) would add a new § 7(a)(l)(B) to require each federal agency that is "responsible for the management of land and water" to conduct an inventory of the presence or occurrence of listed, proposed, and candidate species on its lands. An update of this inventory would be required at least once every 10 years. It is not clear which agencies would be included within this wording of agencies responsible for the management of land and water - e.g., the Department of Defense manages a great deal of land, but that is not its primary mission. If the intent is to apply the provision to less than all agencies that have some responsibility for the management of land and water, Congress may consider so specifying. When consultation required; streamlined procedure. It appears that the proposed changes to the current § 7 consultation process would eliminate some, and possibly many, current consultations. Under § 4(c) of the bill (pp.132-134), an agency would notify the Secretary if the agency determines that an action may affect a listed species or critical habitat. The agency would consult on actions unless the agency determines, based on the opinion of "a qualified biologist" that the action is not likely to adversely affect a listed species or critical habitat, notifies the Secretary of that determination, provides the information on which the agency based the determination, and the Secretary does not object to the determination within 60 days after notice is received. This process would appear to allow greater scope for agency reviews, yet preserve the opportunity for the Secretary to intervene if there is disagreement about the likely effects of the action. However, several points can be noted. Under current regulations, either the agency or the FWS may initiate conferencing or consultation.26 Under the new language, the agency in question would make the initial decision on which the subsequent steps are premised. If an agency chooses not to notify the Secretary that an action "may affect" species, there is no stated recourse for the Secretary to intervene, and the agency decision may not be reviewable under a citizen suit provision. The possibility that the Secretary might not be able to intervene would be at least partially offset by the provision allowing the Secretary to establish categories that would not be subject to the above described agency procedure. Secondly, it is not specified whether the "qualified biologist" must be an agency employee. Third, there is no qualifying language (e.g., "best scientific or commercial data available") as to the type of information on which the agency may rely to determine that the proposed action is not likely to adversely affect listed species. In addition, having agency determinations prevail unless a politically appointed official (rather than non-agency biologists) intervenes, arguably could allow more actions to go forward than is true under the current system. New § 7(a)(3)(B)(iii) (p. 134) would authorize the Secretary to identify categories of actions that are likely to have an adverse effect on species and for which the strearnlined agency determination procedures described above would not apply. New § 7(a)(3)(B)(iv) sets out the grounds on which the Secretary could object to agency determinations that consultations are not needed. The Secretary could object (and thereby force regular consultation) if: the Secretary determines that the action may have an adverse effect on an endangered or threatened species or critical habitat; the Secretary finds there was insufficient information to support the agency's determination; or the Secretary fmds that review cannot be completed within the 60 day limit. The Secretary also is to report to Congress on implementation of the agency consultation provisions. Participation of applicants. New § 7(a)(3)(C) (p.135) and new § 7(b)(l)(D) (pp. 139-141) would allow applicants to participate in the consultation process by submitting and discussing information on the effects of a proposed action and on reasonable and prudent alternatives, and to receive information on that used by the Secretary in developing a draft and final biological opinion. An applicant may also receive a copy of a draft biological opinion and discuss the basis of any of its findings. The Secretary would be required to explain to the applicant why any alternatives suggested by the applicant were not included in the opinion. All comments and other information submitted to or received from an applicant would be maintained and made available to the public. Compliance with these provisions could provide opportunlties for extensive input from applicants; but could entail a significant level of agency response. GAO report. Under § 4(d) of the bill (p.136), the General Accounting Office would be required to report to certain committees of Congress on the costs of formal consultation to the federal agencies and other persons, including the costs of reasonable and prudent measures imposed. Consultation on federal land plans. Section 4(e) of the bill (pp.136-138) would add a new § 7(a)(5) to address what consultation must occur on the land management plans of the Forest Service and the Bureau of Land Management when new species are listed. The new language would include such plans within the term "action," and then impose deadlines on consultations that may be required "on an akeady approved action as defined under subparagraph (A)..." However, because "action" would be defined in the bill as "including" plans, the special provisions on reinitiation of consultations in the land planning context could be interpreted as applying to other actions as well.27 As drafted, new § 7(a)(5)(13) is not limited to reinitiation of consultation on the plans referred to in subparagraph (A). During the time of a reinitiated consultation, an agency may go forward with a site-specific, ongoing or previously scheduled action within the scope of a plan if consultation is not required; or if consultation is required, the Secretary issues a biological opinion and the action satisfies the requirements "of this section [§ 7]." Consolidated consultation. A new § 7(a)(6) (p.138) would statutorily authorize certain consultation consolidation practices. With the approval of the Secretary, consultation and conferencing between the Secretary and an agency could include a number of related or similar actions by the agency to be carried out within a particular geographic area. Similarly, the Secretary would be authorized to consolidate requests for consultation or conferencing from various agencies that might affect the same listed or proposed species within an area. State information. In conducting consultations, new § 7(b)(1)(C) would direct the Secretary to actively solicit and consider information from the state agency in each affected state. "State agency" is currently defined in § 3(18) of the ESA as any state governmental entity responsible for the management and conservation of fish, plant, or wildlife resources in a state. Reasonable and prudent measures. When the Secretary issues a written statement under § 7(b)(4) specifying incidental takings allowed as a result of consultation, the current reference to including specific reasonable and prudent measures that the Secretary considers necessary or appropriate to "nmmnize" such impact would be amended to add "or mitigate" after "minimize" (p.141). Additionally, new language would be added to state that reasonable and prudent measures "shall be related both in nature and extent to the effect of the proposed activity that is the subject of the consultation." Emergency consultation deferrals. After current ESA § 7(p) which addresses emergency actions in disaster areas, § 4()) of the bill (p. 142) would add a new subsection § 7(q) to allow consultation to be deferred in response to a natural disaster "or other emergency" for the emergency repair of a natural gas pipeline, hazardous liquid pipeline, or electrical transmission facility, if the repair is necessary to address an imminent threat to human lives or an imminent and significant threat to the environment. Consultation would be required to be initiated as soon as practicable after the threat was abated.
Section 107 of the House bill (pp. 16-22) would approach consultation issues by changing certain standards, expanding public participation, and by streamlining some procedures. Consultations on candidate and proposed species. New § 7(a)(5) (p. 17) would allow a federal agency to consult on actions that might affect candidate or proposed species. Under current regulations, an agency may confer (the less formal process) on actions likely to affect proposed species, but there is no opportunity for formal consultation regarding species proposed for listing and no opportunity for conferring or consulting on candidate species.28 If an agency consults on proposed or candidate species under the new provisions, there would be no need to re-consult if the species is later listed, unless there is significant new information that was not considered in the original consultation or a significant change in the agency proposal. A federal agency would be required to notify the Secretary of any significant change in or significant new information regarding any action on which there was pre-listing consultation. Monitoring. Under new § 7(a)(6) (p. 18), each federal agency would be required to monitor the status and trends of endangered, threatened and candidate species on lands or in water under the administration of the agency. Biological opinions. Section l07(b) of the bill (p. 18) would amend the current § 7~) provisions on the biological opinion to include a cross-reference to the early consultations and to direct the Secretary to describe the amount of habitat and the number of members of the species that would be taken, together with conservation actions to minitre and ntitigate the impacts of any incidental taking that may result from the action. New § 7(b)(5) would require the Secretary to publish a notice in the Federal Register of initiated consultations, presumably including all types of consultations. The Secretary would also briefly describe the proposed agency action and to make available information concerning the consultation. Under new § 7~)(6), in preparing a § 7 opinion, the Secretary would invite independent scientists with expertise on affected species to provide input into the consultation or biological opinion. The term "independent scientist" would have the same meaning given the term in new § 4(f)(l)(D) on listing. Upon completion of a written statement (!,iological opinion), the Secretary would publish the Secretary's findings and reasoning in the Federal Register. Standard for allowing takes. New § 7(b)(4) (p. 20) would change the standard for when the Secretary may allow takes following § 7 consultation. Under current law, the Secretary must find only that the taking of listed species will not violate the subsection on avoiding jeopardy. This language would be changed to require that the incidental takings "will not interfere with the timely achievement of recovery goals." This would be a stricter standard. Reasonable and prudent measures. Other new requirements would be added with respect to incidental takes. The Secretary would specify reasonable and prudent measures that both mintmize and mitigate impacts. (This same change is proposed in S. 1180 in § 4(i) of the bill (p. 141).) Agencies that were allowed incidental takes would also be required to assess and report to the Secretary on the amount of incidental take that has occurred as a direct impact, indirect impact, or cumulative impact. Again, because of the breadth of the definitions of terms relating to impacts, this reporting arguably could be extensive. If an assessment indicated that the amount of incidental take exceeded that authorized under the written statement, the agency would immediately have to reinitiate consultation. Under § 107(c) of the bill (1). 21), new § 7(c)( 1) would require that agency biological assessments be made available to the public. Consultations on foreign activities. Under § 107(d) of the bill (p. 21), a new § 7(q) would be added to require that § 7 apply to any agency action (which apparently would include private actions with federal authorization or funding) with respect to listed, proposed, or candidate species "carried out in whole or in part, in the United States, in a foreign country, or on the high seas." This would resolve an important question on the scope of the ESA and would greatly expand its application. For example, projects carried out through the Agency for International Development or the Department of Defense might trigger consultation or conferencing with the FWS or NMFS. It is not clear whether negotiations on trade agreements might also be subject to ESA scrutiny. Consolidated consultations. A new § 7(r) (pp. 21-22) would require that within a year after enactment the Secretary "in cooperation with the States" to promulgate regulations to ensure timely conclusion of consultations. These regulations should include, to the extent practicable and if approved by the Secretary, consolidation of similar or related agency actions to be undertaken within a particul& geographical range or ecosystem, and, to the extent practicable, consolidated requests from various federal agencies involving actions and species that are dependent on the same ecosystem. "Ecosystem" would be defined for purposes of this subsection. Aside from the references to ecosystems (rather than merely to geographical areas), these provisions are very similar to those of S. 1180 (p. 138). Endnotes 25 50 C.F.R. § 402.02. 26 50 C.F.R. §§ 402.10 and 402.14 |
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