The Endangered Species Act’s Section 7 Consultation Requirement:

Strategies and Tools

Cherise M. Oram

Stoel Rives LLP

Land Use in WashingtonApril 17, 2007

Today’s 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 It’s 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 Solicitor’s Opinion

• “significant portion of its range”

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

ESA Compliance Decision Tree

Private Party

Federal nexus?

Taking of species or its

habitat?

HCP(minimize & mitigate;

“no surprises”)

Section 7 Consultation

Take avoidance agreement

(Service signature is

“action” triggering Section 7)

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

Maybe

No

Yes

No

Yes

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

Informal Consultation Summary

Federal Action

No Effect = no consultation “May Affect” Listed Species

Develop BA

Not likely to adversely affect Likely to adversely affect

Service does not concur

Go to Formal Consultation

Go to Formal ConsultationService concurs

End of Informal Consultation

Informal Consultation

• No biological opinion

• No incidental take authorization

• Biological assessment/evaluation and Service’s concurrence creates administrative record documenting that the action is not likely to adversely affect listed species or habitat

When is “Formal” Consultation Required?

Federal Action

No Effect = end of consultation “May Affect” Listed Species

Develop BA

Not likely to adversely affect Likely to adversely affect

Service does not concur

Go to Formal Consultation

Go to Formal ConsultationService concurs

End of Informal Consultation

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

“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

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

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 project’s 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.

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.

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 action’s potential effects on opportunities for recovery, not just survival.

Reviewing Biop’s 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.

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

Recent Case Law

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

– Is EPA’s 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.

Recent Case Law

– National Wildlife Federation v. NMFS (9th Cir. 2007)• On April 9, Ninth Circuit upheld Judge Redden’s 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 agency’s “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 NMFS’s jeopardy analysis. Services must now address twin goals of survival and recovery – not just survival – when evaluating an action’s 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.”

Recent Case Law:When 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

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

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, Nat’l Wildlife Federation, Environmental Defense, and numerous hunting and fishing groups

• Virtually identical to bill introduced by Sen. Crapo in Dec. 2006.

Administrative Actions

• DOI Solicitor’s 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

Questions?