Proposed Rule Amending the Endangered Species Act Section 7 Consultation Regulations Published in the Federal Register

The Department of Interior and the National Oceanic and Atmospheric Administration published a proposed rule on August 15, 2008, Vol. 73 Fed. Reg. 47868 significantly revising the Section 7 Consultation process under the federal Endangered Species Act (ESA) for the first time since 1986. The proposed rule, which claims to merely implement lessons learned and make minor procedural changes, reflects the Department’s desire to reduce the regulatory burden of the consultation process and remove consideration of greenhouse gas (GHG) emissions from the consultation process. According to the Department, “While this rule will help avoid misuse of the ESA to regulate climate change, the rule will also generally improve the consultation process.”¹ However, the proposed changes may have some unintended consequences that could adversely affect development projects seeking Section 7 Consultations across the United States.
 
Comments on the proposed rule are due September 15, 2008, and should be submitted through the Federal eRulemaking Portal at www.regulations.gov. Follow the instructions on the Web site for submitting comments.

Background
 
In a press release issued on August 11, 2008, Secretary of the Interior Dirk Kempthorne announced he was following through on his commitment, made after the May 15, 2008 determination to list the polar bear as a threatened species, to “propose common-sense modifications” to the existing ESA regulations.² The press release indicated that the proposed rule would update the regulations implementing Section 7of the ESA, which requires federal agencies to consult with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service (together “Services”) before they undertake or approve an action that may affect a listed species. The Department indicated its intent to memorialize in this rule its position that it is inappropriate to consult on an agency action involving the contribution of emissions to global warming because it is not possible to link the emissions to impacts on specific listed species such as polar bears.
 
The proposed regulation was not posted with the press release, but was leaked in draft on August 11, 2008, causing a wave of responding press release statements from environmental groups calling the draft rule an “egregious and sweeping assault” on the ESA.³ A slightly revised version of the proposed regulation was posted on the Department’s Web site on August 13, 2008, and the final was published in the Federal Register on August 15, 2008, Vol 73 Fed. Reg. 47868

Summary of Proposed Rule
 
The proposed rule includes provisions that would accomplish four main purposes: (1) add new language to delineate when consultation is not required; (2) clarify the causation standard used in determining the effects of agency actions; (3) amend the informal consultation process to add time frames; and (4) clarify that federal agencies do not have to create a new document to comply with the requirement for doing a Biological Assessment to initiate Section 7 Consultations.

1. When is consultation not required under the proposed rule?

With respect to when consultation is required, the proposed rule would revise 50 C.F.R. Section 402.03 (Applicability) to explicitly state that consultation is not required when a federal action agency determines (a) the action will have no effect on listed species or critical habitat; (b) the effects are so inconsequential, uncertain, unlikely or beneficial that they are, as a practical matter, tantamount to having no effect on a listed species or critical habitat; (c) the action is an “insignificant contributor” to any effect on listed species or critical habitat; (d) the effects are not capable of being meaningfully identified or detected in a manner that permits evaluation; the effects are wholly beneficial; or the potential risk of jeopardy to a listed species is remote. Finally, the proposed rule clarifies that the action agency can limit its analysis to only effects of the action that fall outside the exclusions listed above. These exclusions are justified, according to the notice, in order to reduce the number of unnecessary consultations, since “[m]any Federal action agencies have now had decades of experience with section 7 … [and] are fully qualified to make these determinations … .” Vol. 73 Fed. Reg. at 47871

2. What effects must be analyzed in the Section 7 Consultation under the proposed rule?
 
Under the existing regulations, the federal action agency must consider the “effects of the action” including cumulative effects and indirect effects. The proposed rule limits the definitions of “cumulative effects” and “indirect effects” in 50 C.F.R. Section 402.02. The proposed rule defines “indirect effects” as those effects for which the proposed action is an essential cause, and that are later in time, but still are reasonably certain to occur. There must be a close causal connection between the action under consultation and the effect that is being evaluated so that “if an effect would occur whether or not the action takes place, the action is not a cause of the direct or indirect effect.” The use of the word “essential” is meant to capture the requirement that there needs to be more than a technical “but for” connection. “Reasonably certain to occur” is also defined to mean that there is “clear and substantial information” that an effect will happen. The proposed rule also provides that cumulative effects under the ESA has a narrower meaning than “cumulative impacts” under the National Environmental Policy Act in that it does not include future federal activities and rather than being “reasonably foreseeable,” future actions must be “reasonably certain to occur.”

3. What are the changes to the informal consultation process under the proposed rule?
 
Even though under the proposed rule, federal action agencies would no longer have to informally consult with the Services on actions that are not likely to adversely affect a listed species or its habitat, the informal consultation provisions were retained for those cases where an action is not excluded from consultation or when the action agency seeks the Services’ expertise. However, the proposed rule adds time deadlines to limit the duration of the informal consultation. Specifically, the Services will have 60 days, with an option to request an additional 60 days, to act on a request. If there is no written determination from the Services within the deadlines, then the action agency may terminate the consultation.

4. What documentation is needed to comply with the requirement for a Biological Assessment under the proposed rule?
 
The proposed rule revises the current regulatory definition of a biological assessment to clarify that action agencies do not necessarily have to create a new document to comply with the requirement for a biological assessment at 50 CFR 402.12. The Services note that because the contents of a biological assessment are not set by regulation but rather are at the discretion of the action agency, the Services will allow action agencies to use information in documents prepared for another purpose in order to initiate consultation and satisfy 50 CFR 402.14(c). This change is intended to help make the consultation process more efficient and avoid unnecessary duplication. However, the Services note that it is the action agency’s responsibility to describe with specificity where the relevant analysis for initiation of consultation can be found in the alternative document.

Analysis
 
Environmental groups have declared the proposed rule to be a rollback of protections for listed species, arguing in particular that it would unduly limit informal and formal consultations. Letting the federal action agency determine that there would be no effects, they argue, would be like giving the “fox the key to the hen house.” Environmental groups also express concern that the proposed rule includes new justifications for avoiding or minimizing consultation based on lack of causation arguments and arbitrary deadlines, allowing projects to escape ESA scrutiny.
 
Whether the proposed rule lessens protection or not, it is clearly geared toward excluding GHG from consultations under the ESA: “This regulation would enforce the Services’ current view that there is no requirement to consult on greenhouse gas (GHG) emissions’ contribution to global warming and its associated impacts on listed species (e.g., polar bears).” Vol. 73 Fed. Reg. at47872 Using a highway project as an example, the notice explains that while the impacts of tailpipe emissions on local air pollution could be an effect of the action, the GHG emissions’ contribution to global warming and those associated impacts to listed species are not effects of the action and would not have to be considered. The notice explains that first, GHG emissions from the highway project are not an “essential cause” of any impacts associated with global warming. Second, the impacts are not reasonably certain to occur. Finally, even if the impacts fall in the definition of “effects of the action,” they do not need to be considered because under the proposed Applicability section, building one highway is “an insignificant contributor” to any such impacts and cannot be “meaningfully identified or detected in a manner that permits evaluation.”
 
However, in the drive to exclude GHG analysis from the ESA Section 7 Consultation process, the proposed rule fails to consider the consequences of so narrowly construing the effects of the action. The proposed rule may have the unintended effect of limiting access to the Section 7 Consultation for those developers who have a more limited federal “hook,” but consent to application of the consultation to the full project. For example, consider a development project of 100 residential units in California that would involve the dredging and filling of a .4 acre wetland under a Clean Water Act permit from the U.S. Army Corps of Engineers and would also result in take of the endangered vernal pool tadpole shrimp from that wetland. Upland portions of the property may support kit fox, but none have been sited on the property. In the past, ESA Section 7 would allow the Corps of Engineers to consult with the Services on the full project’s impacts to the shrimp and the fox and require mitigation for both in order to issue the permit. If the proposed rule were enacted, the Corps of Engineers would be limited to consulting solely on the wetland fill. The project would have no ESA take coverage for the kit fox. Excluding the full project from Section 7 forces private developers to either pursue Habitat Conservation Plans (HCPs) under Section 10 of the ESA, which involves a much longer, more cumbersome and expensive process (and one that also includes an internal Section 7 Consultation) or decide to “risk it,” potentially allowing projects to slip through the cracks. The proposed rule states that its new causation standard will “simplify the consultation process and make it less burdensome and time-consuming,” but forcing development projects like the one described above out of Section 7 will only increase the costs and regulatory burdens, including increasing staff work load in preparing HCPs, or result in projects that may not mitigate at all.
 
Link to Web page containing the Federal Register Notice: www.regulations.gov

1 Secretary Kempthorne Proposes Narrow Changes To ESA Consultation Process, August 11, 2008, https://www.doi.gov/sites/doi.gov/files/archive/news/archive/
08_News_Releases/080811a.html  

2 Id. See also Peter Landreth, Elizabeth Lake and Lawrence Liebesman, The Polar Bear Listing and Its Ramifications: Can the “Butterfly Effect Impose the Endangered Species Act on Federal Authorization of Greenhouse Gas Emissions?, Bloomberg Environmental Law Reports Vol. 1, No. 1, July 28, 2008. 

3 Sierra Club: http://action.sierraclub.org/site/MessageViewer?em_id=66524.0; See also, National Wildlife Federation: http://www.nwf.org/news/story.cfm?pageId=B37BC419-15C5-5FE8-B007DAC35C60F339;; Center for Biological Diversity: http://www.biologicaldiversity.org/news/press_releases/2008/esa-regulations-08-11-2008.html; Environmental Defense Fund: http://www.edf.org/pressrelease.cfm?contentID=8214; Earthjustice: http://www.earthjustice.org/news/press/2008/bush-administration-moves-to-weaken-species-protection-law.html.