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On August 11, 2008, Secretary of the Interior Dirk Kempthorne announced proposed revisions to the Endangered Species Act (“ESA”) Section 7 consultation regulations. The proposed revisions are intended to clarify definitions regarding effects and causation, streamline the process by eliminating unnecessary consultations, and address the treatment of climate change issues in the consultation process. Publication of the proposed rule in the Federal Register is expected on August 15, followed by a 30-day comment period.
Section 7 of the ESA requires that each federal agency (the “action agency”) consult with the U.S. Fish and Wildlife Service (for terrestrial and freshwater species) or the National Marine Fisheries Service (for marine species) (collectively “the Services”) to ensure 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 any critical habitat of such species. Based on the broad language of the statute, consultation is required for a variety of federal authorizations, such as a wetlands permit under Section 404 of the Clean Water Act or a right-of-way over federal lands.
The current regulations provide action agencies with three potential approaches to consultation, depending on anticipated level of effects from the project on listed species or critical habitat. First, the regulations do not require consultation if the action agency determines that the proposed action will have no effect on listed species or critical habitat. Second, if the action agency determines that the action may affect, but is not likely to adversely affect, listed species or critical habitat, it must obtain the concurrence of the Service through informal consultation to satisfy its Section 7 obligations. Third, if the action agency determines that the proposed action may adversely affect listed species or critical habitat, formal consultation with the Service is required, which results in the issuance of a biological opinion, and associated incidental take statement if appropriate, by the Service that indicates whether the proposed action would result in jeopardy to listed species or adverse modification or destruction of critical habitat.
One of the major changes in the proposed rule is to allow the action agency to unilaterally determine that a proposed action is not likely to adversely affect listed species or designated critical habitat without Service concurrence when no take is anticipated and the effects are inconsequential, wholly beneficial, or not capable of being meaningfully identified or detected in a manner that permits evaluation, or the risk of jeopardy to the species or adverse modification or destruction of critical habitat is remote. Thus, under the proposed rule, if an action agency determines that a project will have no effect or is not likely to adversely affect a listed species or critical habitat, it need not consult with the Service.
The proposed rule also clarifies the appropriate causation standard to be used in determining the effects of a proposed action by limiting “indirect effects” to those effects for which the proposed action is an essential cause and that are reasonably certain to occur. The Services indicate that they added “essential” to show that in some instances more than a technical “but for” connection is required to be deemed an indirect effect of the action (such as in the case of a small waterway crossing requiring a Corps permit that is part of a long pipeline). A determination that an effect is reasonably certain to occur must be based on clear and substantial evidence.
The Services explain that, under these new definitions, there is no requirement for action agencies to consult on the contribution of greenhouse gas (GHG) emissions to global warming and its associated impacts on listed species, such as polar bears. For instance, where a highway project may increase GHG emissions in the project area, the effects of those emissions on local air quality could be an effect of the action, but the project’s contribution to global warming and associated impacts to listed species are not and would not need to be considered in any consultation.
The Services justify this position by noting that GHG emissions from one highway project are not an essential cause of any impacts associated with global warming. Also, such effects are not reasonably certain to occur. Thus, they are not “effects of the action” under the proposed revision to that definition. The Services also note that, even if they were deemed to be effects of the action, they are an insignificant contributor to any impacts associated with global warming, are not capable of being meaningfully identified or detected in a manner that permits evaluation, and are such that the risk of potential jeopardy to the listed species or adverse modification or destruction of critical habitat is remote. Thus, the Services’ position is that consultation on a project’s contribution to global warming would be unwarranted.
The proposed rule also modifies the informal consultation process to include timeframes for Service concurrence. In particular, if the action agency does not receive a written concurrence from the Service within 60 days, it may terminate informal consultation, unless the Service has requested an extension, which cannot exceed an additional 60 days. |
