Beveridge & Diamond

Agencies Propose to Update and Narrow Endangered Species Act Consultation Requirements

Beveridge & Diamond, P.C., August 20, 2008

On August 15, 2008, the Interior and Commerce Departments (jointly, “Agencies”), issued a proposed rule to amend current regulations governing federal interagency consultations under the Endangered Species Act (“ESA”).  73 Fed. Reg. 47868-47875.  Section 7 of the ESA and its implementing regulations require consultation with the Agencies to ensure that federal actions (e.g., Department of Transportation construction of a road, or Army Corps of Engineers issuance of a wetlands fill permit) are not likely to jeopardize protected species or adversely affect their critical habitat.  According to the Agencies, their experience over many years has increasingly found these consultations to be too numerous, unwieldy, and lengthy.

The most significant outcome of the new rules would be “to reduce the number of unnecessary consultations” under Section 7 of the ESA.  Id. at 47871.  In lieu of current regulations requiring consultation whenever a federal action “may affect” species or its critical habitat, 50 C.F.R. § 402.14(a), the proposal seeks to utilize federal agencies’ several decades of experience evaluating species impacts.  The Agencies believe that action agencies can now reliably determine on their own if their actions are not anticipated to “take” listed species and are “not likely to adversely affect” listed species or their critical habitat.  Accordingly, to enable the Agencies to focus their efforts on cases where species effects are genuinely at issue, the proposed rule would not require Section 7 consultation or concurrence when the action agency has determined that “take is not anticipated and the potential effects are either insignificant, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy or adverse modification or destruction of critical habitat.”  73 Fed. Reg. at 47871. 

The Agencies also propose several definitional changes to expedite and clarify the applicable standards for effects analysis.  First, the proposal reiterates that Section 7 only applies to “discretionary” federal actions.  Second, in order for potential species effects to qualify as “effects of the action” warranting analysis, particularly for “indirect effects,” a two-part test must be met:  the effect must be “caused by” the action and must be “reasonably certain to occur.”  For causation, an action must be an “essential” or “but for” cause of the species effect.  To demonstrate certainty, “clear and substantial information” must be submitted.  Third, the proposed rule makes clear that “cumulative effects” for Section 7 analysis is narrower than “cumulative impacts” under NEPA, in that species impacts must be “reasonably certain to occur” (rather than “reasonably foreseeable”) and do not include future federal actions.  Fourth, the rule would waive the need to prepare a separate biological assessment document to initiate consultation when the specific, relevant information is already included in another document.  Id. at 47869-47870.  While “informal” consultation remains an available option under the proposal, the rule imposes a 60-day deadline for concurrence by the Agencies.  Id. at 47872.

Finally, as a result of the above definitional changes, greenhouse gas emissions’ potential impacts on global warming and listed species would be expressly excluded from Section 7 consultation.  Noting the recent polar bear listing determination, the Agencies maintain their position that such impacts of individual projects (e.g., “one highway”) cannot be reliably or accurately measured and, in any event, are likely insignificant.  Id. at 47872. 

The 30-day comment period for the proposed rule expires on September, 15, 2008.  For more information, please contact Fred Wagner at or (202) 789-6041, James Auslander at or (202) 789-6009, and Timothy Sullivan at or (410) 230-1355.




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