Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Congressional research reportJun 5, 2009

Ask Donna

What actually matters in this document.

Text

Changes to the Consultation Regulations of

the Endangered Species Act (ESA)

(name redacted)

Legislative Attorney

(name redacted)

Specialist in Natural Resources Policy

June 5, 2009

Congressional Research Service

7-....

www.crs.gov

RL34641

CRS Report for Congress

Prepared for Members and Committees of Congress

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Summary

The Endangered Species Act (ESA) requires all federal agencies to consult with either the Fish

and Wildlife Service or the National Marine Fisheries Service (the Services) to determine whether

their actions may jeopardize the continued existence of a listed species or destroy or adversely

modify designated critical habitat of listed species. In August 2008, FWS and NMFS proposed

changes to the regulations that address the consultation process. Final regulations were published

December 16, 2008, and took effect on January 15, 2009. On May 4, 2009, those regulations were

withdrawn and the regulations that were in effect before the changes were reinstated. FWS and

NMFS were authorized by P.L. 111-8, § 429 to make the substitution. This report explains what

changes had been made to the consultation regulations and related issues.

The revisions were intended to do three things, according to the Services: clarify when

consultation is applicable; clarify certain definitions; and establish time frames for consultation.

The Services argued that the new regulations showed the ESA does not require consultation on

greenhouse gas emissions’ contribution to global warming and its associated impacts on listed

species.

The revised regulations gave federal agencies greater discretion to determine when and how their

actions may affect listed species. They also addressed issues of causation—when an agency

action truly affects the well-being of listed species or critical habitat. The changes modified

definitions and altered the process for consultations. The definitions that were modified include

cumulative effects, effects of an action, and biological assessment. The changes added criteria for

determining when consultations do not apply. The Action Agency continued to determine whether

consultation is required. The processes for formal and informal consultations were revised to

include a 60-day deadline (which may be increased to 120 days) for the appropriate Service to

concur in writing with an Action Agency’s finding during informal consultation. If the Service

failed to respond in writing, the project could continue without further consultation at the

discretion of the Action Agency.

Congress addressed the regulations. A provision in the 2009 Omnibus Appropriations Act (P.L.

111-8) allowed the Secretaries of the Interior and Commerce to withdraw the regulations without

any administrative steps, putting the previous regulations back in effect, provided they acted

within 60 days. Additionally, President Obama issued a memorandum directing those Secretaries

to decide whether to develop new regulations that would “promote the purposes of the ESA.” The

memorandum also requested all agencies to exercise the discretion allowed under the revised

regulations to “follow the prior longstanding consultation and concurrence practices” of the

Services.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Contents

Introduction and Background into the Section 7 Consultation Process .........................................1

The Regulations, Generally .........................................................................................................1

Revised Regulations....................................................................................................................3

Omnibus Appropriations Act of 2009 (P.L. 111-8) .................................................................3

How the Regulations Were Revised.......................................................................................4

Amended Definition of Biological Assessment (BA) (§ 402.02) ............................................5

Amended Definition of Cumulative Effects (§ 402.02) ..........................................................5

Amended Definition of Effects of the Action (§ 402.02) ........................................................6

Changed Criteria for When a Consultation Is Not Applicable (§ 402.03)................................8

How Subsection (b) Determinations Are Recorded ..........................................................8

Considering Take in Deciding Whether a Consultation Applies........................................8

Whether the Revisions Improperly Eliminated Some Consultations .................................9

The Action Has No Effect on a Listed Species or Critical Habitat (§ 402.03(b)(1)) ........ 11

The Action Is Manifested Only Through Global Processes (§ 402.03(b)(2))................... 12

The Effects Are Not Capable of Being Meaningfully Identified or Detected

(§ 402.03(b)(3)(i))...................................................................................................... 14

The Action is Wholly Beneficial (§ 402.03(b)(3)(ii)) ..................................................... 14

Consultation for Only Some Effects of an Action (§ 402.03(c)) ..................................... 14

Informal Consultation (§ 402.13) ........................................................................................ 15

Dividing Projects into Segments or Combining Projects for Consultations..................... 15

Considering the Effects When Making a Request .......................................................... 16

Deadline for a Service’s Response................................................................................. 16

Is a Request a Formal Document? ................................................................................. 16

Formal Consultation (§ 402.14)........................................................................................... 16

Climate Change and the Changed Regulations........................................................................... 17

Tables

Table 1. Comparison of Previous Regulations to Revised Regulations ...................................... 20

Table A-1. Number of Projects Reviewed by NMFS that Did Not Meet Specified Criteria ......... 25

Table A-2. Number of Projects Reviewed by FWS that Did Not Meet Specified Criteria........... 26

Table A-3. Total Number of Criteria Missed, by Project for FWS Species ................................. 26

Appendixes

Appendix A. Internal Consultation: The National Fire Plan (NFP) of the Healthy Forests

Initiative ................................................................................................................................ 24

Appendix B. Deadlines: The Desert Rock Energy Project.......................................................... 27

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Contacts

Author Contact Information ...................................................................................................... 28

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Introduction and Background into the Section 7

Consultation Process

The purpose of the Endangered Species Act (ESA) (16 U.S.C. §§ 1531 et seq.) is threefold: to

provide a means to conserve ecosystems upon which endangered and threatened species depend;

to provide a program to protect those species; and to take steps to achieve the purposes of related

treaties and conventions.1 Section 7 of the ESA requires all federal agencies to carry out programs

for the conservation of endangered and threatened species in furtherance of those purposes. 2 The

statute says that the federal agencies “shall” work toward those goals “in consultation with and

with the assistance of” the two agencies that supervise the ESA program: the Fish and Wildlife

Service (FWS) of the Department of the Interior, and the National Marine Fisheries Service

(NMFS) of the Department of Commerce (together: the Services).

The ESA prohibits taking endangered wildlife species, defining take as: harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.3 The

purpose of the Section 7 consultation is to make sure that federal agencies (known as Action

Agencies) avoid jeopardizing listed species or adversely modifying their designated critical

habitat. If a federal agency action causes some unavoidable taking incidental to an otherwise

lawful purpose, the ESA allows the Services to issue an Incidental Take Statement to the Action

Agency, meaning the harm will not be prosecuted. The Action Agency must also minimize the

effects of the taking. Acting without a Section 7 consultation leaves a federal agency at risk of

violating the ESA because it would not have the Incidental Take Statement excusing its conduct.

Section 7 also prohibits a federal agency from making “irreversible or irretrievable commitment

of resources” that would prevent the effectiveness of any alternative measures suggested by the

Service. 4

The Regulations, Generally

While not stated in the statute, as a practical matter not every federal action requires consultation.

It has long been within the discretion of the Action Agencies to determine whether a proposed

action requires consultation. This option was provided in the regulations of 1986.5 The 1986

regulations were in place until the 2009 regulations took effect, and were reinstated in May of

that year. A comparison of the versions of the regulations is in Table 1 at the end of this report.

Throughout this report the regulations that were in place between January 15, 2009, and May 4,

2009, are referred to as the revised regulations. The regulations that are in place now are referred

to as the existing regulations or regulations, depending on context.

16 U.S.C. § 1531(b).

16 U.S.C. § 1536(a)(1). “Section 7” refers to where the consultation requirement appears in the public law

establishing the Endangered Species Act, P.L. 93-205. The citations in this report will refer to the codified version of

that law.

16 U.S.C. § 1532(19).

16 U.S.C. § 1536(d).

50 C.F.R. part 402.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Informal and formal consultation procedures were established in 1986. When an Action Agency

realizes its project may affect a listed species or critical habitat, it must consult with the Service. 6

This decision must be made “at the earliest possible time.”7 If the action may affect critical

habitat or species, then the Action Agency will submit an “initiation package” described in 50

C.F.R. § 402.14(c). This information must be based on the best scientific and commercial data

available. 8 The initiation package starts the formal consultation process.

A consultation is an ongoing conversation between the Action Agency and the Service biologists.9

A few phone calls may suffice to reassure the Action Agency that there are no listed species in the

action area, or if there are, that they will not be affected. FWS or NMFS may ask for relatively

minor amounts of additional written documentation and then conclude (still fairly quickly) that

neither jeopardy to the species nor adverse modification of its habitat will occur. Alternatively, the

Services may conclude that more information is needed and ask the agency to carry out a

biological assessment (BA) for formal consultation. This process may proceed in days, weeks, or

sometimes months.10 There was no deadline for the Service to respond to a request for

concurrence in the previous regulations.

The statute requires the Services to respond to a consultation initiation within 90 days or on a

mutually agreed upon date. 11 The Services mark initiation of the consultation from when the

Service receives a complete BA, i.e., one that has sufficient information to assess the effects of

the proposed action. The Action Agencies’ perception of when formal consultation begins is often

earlier, and likely a source of the frustration noted below. For those agencies that consult

regularly (e.g., Forest Service, Bureau of Land Management, Environmental Protection Agency),

consultation is a well-trodden path. But for others, consultation may be an extremely rare event

and difficult for the Action Agency to manage.

Repeated requests for additional data have led to great frustration among Action Agencies and the

non-federal parties relying on them for permits, loans, sales, licenses, etc. Some see consultation

as needless delay of weeks, months, or even a year or more, even if the result of the consultation

is a “no jeopardy” biological opinion (BiOp), which finds that the action will not jeopardize the

species nor adversely modify designated critical habitat.

According to the Services, the workload associated with consultations has grown since 1996, with

FWS reporting double the consultations.12 The FWS reports that in 2006, there were 39,346

requests for technical assistance, 26,762 requests for informal consultations, and 1,936 requests

for formal consultations.13

See NRDC v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998).

50 C.F.R. § 402.14.

50 C.F.R. § 402.14(d).

For a detailed discussion of consultation practices, see Consultation Handbook, cited above.

The authors are not aware of any comprehensive studies examining the duration of typical formal and informal

consultations.

16 U.S.C. § 1536(b).

72 Fed. Reg. 76272, 76280 (Dec. 16, 2008). According to the same notice, NMFS did not have data for the number

of consultations.

Id.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Revised Regulations

On August 15, 2008, the Services issued proposed revisions to the Section 7 consultation

regulations.14 A draft environmental assessment was prepared under the National Environmental

Policy Act, finding that the changes would not have a significant impact on the environment.15

The final version was published December 16, 2008, and took effect January 15, 2009.16 A

lawsuit was filed to set aside the revised regulations, claiming they violated federal law.17 In

March 2009, a provision in the Omnibus Appropriations Act of 2009 authorized withdrawal or

reissuance of the regulations without a notice and comment period. On May 4, 2009, the Services

“amended” the consultation regulations by reinstating the version that was in place prior to

December 16, 2008.18

Omnibus Appropriations Act of 2009 (P.L. 111-8)

The 111th Congress acted to allow the revised regulations to be withdrawn or reissued without

having to undergo additional regulatory rulemaking. A provision of the Omnibus Appropriations

Act of 2009 (P.L. 111-8) authorized the Secretaries of the Interior and Commerce to “withdraw or

reissue” the revised regulations within 60 days of the act “without regard to any provision of

statute or regulation.”19 This meant no rulemaking steps were required, such as notice and

comment periods. The law also provided that the previous regulations go back into effect.20

73 Fed. Reg. 47868 (Aug. 15, 2008).

73 Fed. Reg. 63667 (Oct. 27, 2008). The final EA was announced with the final regulations. 73 Fed. Reg. at 76272.

Comments were originally due within 30 days, but that was extended to 60 days. 73 Fed. Reg. 52942, 52943 (Sept.

12, 2008). Although no specific number of comments was given in the final notice, as usually is done, reportedly over

200,000 comments were received. See, e.g. Erika Dimmler, Environmentalist Blast Changes to Endangered Species

Rules, CNN.com (Dec. 12, 2008).

Center for Biological Diversity v. Kempthorne, No. CV-08-5546 (N.D. Cal. filed Dec. 11, 2008). The Center for

Biological Diversity, Greenpeace, and Defenders of Wildlife were plaintiffs. The State of California joined the suit as a

plaintiff.

74 Fed. Reg. 20421 (May 8, 2009). The notice states: “With this final rule, the Department of the Interior and the

Department of Commerce amend regulations governing interagency cooperation under the Endangered Species Act of

1973, as amended (ESA). In accordance with the statutory authority set forth in the 2009 Omnibus Appropriations Act

(P.L. 111-8), this rule implements the regulations that were in effect immediately before the effective date of the

regulation issued on December 16, 2008.”

Div. E, Tit. IV, § 429(a)(1) (March 11, 2009). This provision also authorized withdrawing the polar bear special rule.

However, the Department did not withdraw those regulations. For more analysis on the special rule, see CRS Report

RL34573, Does the Endangered Species Act (ESA) Listing Provide More Protection of the Polar Bear?: A Look at the

Special Rule, by (name redacted), by (name redacted), and CRS Report RL33941,

Polar Bears: Listing Under the

Endangered Species Act, by (name redacted), (name redacted), and (name redacted).

On April 3, 2009, 44 Members of the House of Representatives wrote Secretary Salazar and Secretary Locke asking

that the revised consultation regulations be withdrawn.

The law provides that if the rule is withdrawn, the Secretary “shall implement the provisions of law under which the

rule was issued in accordance with the regulations in effect under such provisions immediately before the effective date

of such rule, except as otherwise provided by any Act or rule that takes effect after the effective date of the rule that is

withdrawn.” Div. E, Tit. IV, § 429(b).

A proposed amendment to the bill (that was defeated) would have required the Secretaries to follow full rulemaking

procedures with a comment period of at least 60 days if they withdrew or repromulgated the regulations. S.Amdt. 599.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

President Obama issued a memorandum on March 3, 2009, directing the Secretaries of the

Interior and Commerce to consider issuing new regulations to “promote the purposes of the

ESA.”21 The memorandum also requested that other federal agencies exercise the discretion

allowed under the revised regulations to follow the “prior longstanding consultation and

concurrence practices” involving the Services, since nothing in the revised regulations prohibited

agencies from carrying out a full consultation.

How the Regulations Were Revised

The regulations that were in effect from January 15, 2009, to May 4, 2009, had revised the

consultation process by: (1) allowing already prepared documents to be used as a BA; (2)

allowing Action Agencies greater discretion to determine whether consultation applies; (3)

clarifying certain definitions; and (4) making procedural changes to informal consultations.22

A stated goal of the revised regulations related to climate change. The Services said that the

modifications would “reinforce the Services’ current view that there is no requirement to consult

on [greenhouse gas] emissions’ contribution to global warming and its associated impacts on

listed species.”23 Some believe that the ESA is not the appropriate statutory vehicle for regulating

greenhouse gas emissions, as it was not implemented to analyze air quality. Others note that the

ESA has no exceptions for types of projects and that exceptions could not be created by

regulation. Still others suggest that the existing causation requirements linking an agency action

to a particular harm already limit the ESA’s use as a tool in regulating global warming.

The suit against the changes argued that the revisions would not achieve these goals:

contrary to the Services’ characterization, the proposed changes would severely limit the

kinds of direct, indirect, and cumulative effects that must be addressed in section 7

consultations, and would also result in a plethora of actions harmful to listed species

proceeding without the Services’ input or involvement merely because the Services lacked

adequate time or resources to respond within the mandatory time frames imposed by the

regulations.24

Six substantive changes were made to the regulations. The alterations included the following:

•

changing the definition of biological assessment;25

•

changing the definition of cumulative effects;26

•

changing the definition of effects of the action; 27

•

changing when a consultation is needed;28

See Memorandum for the Heads of Executive Departments and Agencies (March 3, 2009), online at

http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies/.

73 Fed. Reg. at 47869.

73 Fed. Reg. at 47872.

Center for Biological Diversity v. Kempthorne, No. CV-08-5546, at 17-18 (N.D. Cal. filed Dec. 11, 2008).

50 C.F.R. § 402.02.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

•

changing the procedure for informal consultation;29 and

•

changing the procedure for formal consultation.30

The revised regulations altered the criteria for when a consultation would be needed, but

otherwise made no significant changes to the proposed revision.

Amended Definition of Biological Assessment (BA) (§ 402.02)

The revised regulations added two sentences to the definition of BA to allow other documents to

serve as a formal BA, with a stated goal of promoting efficiency. See Table 1. Action Agencies

would not have to create a special document when that information was already available in

another form, although the Action Agency would have to indicate where the relevant material

appeared if another document were used. This appeared to be consistent with the statute, which

already allows the BA to be part of a review under the National Environmental Policy Act

(NEPA).31 Additionally, the existing regulations already provided that the contents of a BA were

at the discretion of the Action Agency.32 Therefore, this addition appeared to have little legal or

policy impact on the operation of the consultation process.

Amended Definition of Cumulative Effects (§ 402.02)

The revised regulations added a sentence to the definition of cumulative effects. See Table 1. The

existing regulations define cumulative effects as “those effects of future State or private activities,

not involving Federal activities, that are reasonably certain to occur within the action area.” The

amendment added this sentence: “Cumulative effects do not include future Federal activities that

are physically located within the action area of the particular Federal action under consultation.”

The concept of cumulative effects was created by regulation, not by statute. In 1986, when this

regulation was established, the Service justified using the term by saying that since federal

agencies were required to investigate environmental impacts of a proposed action in compliance

with NEPA, and NEPA required a cumulative effects analysis, it was already the Action Agency’s

“responsibility to develop this information.”33 In proposing the 1986 regulations, the Services

stated that the context of cumulative effects under NEPA is broader than that under the ESA,

noting that the ESA does not require consideration of future federal actions. 34

(...continued)

50 C.F.R. § 402.03.

50 C.F.R. § 402.13.

50 C.F.R. § 402.14.

42 U.S.C. §§ 4321 et seq. See Wilderness Society v. Wisely, 524 F. Supp. 2d 1285, 1303 (D. Colo. 2007) (holding

that an environmental assessment under NEPA sufficed to provide the Service with adequate information about listed

species).

50 C.F.R. § 402.12(f) (listing five areas that may be considered for inclusion).

51 Fed. Reg. 19926, 19932 (June 3, 1986).

73 Fed. Reg. 47868, 47869 (August 15, 2008). NEPA does not use cumulative effects, but instead uses cumulative

impact, which is defined by the Council on Environmental Quality as follows: “the impact on the environment which

results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future

actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative

impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40

(continued...)

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Action Agencies are required to consider cumulative effects in their BAs,35 and to provide a

written analysis of cumulative effects in the request for formal consultation.36 The Services are

also required to consider cumulative effects. During formal consultation, a Service must review

cumulative effects,37 and its BiOp must be based on whether the action, together with cumulative

effects of the action, will jeopardize a species or adversely modify critical habitat.38

It is not clear what the language added to the definition provided. The added language reiterated

that federal activities were not a factor in cumulative effects, “cumulative effects do not include

future Federal activities,” and refined the definition only to state that the effects did not include

federal activities “physically located” within the action area.39 Since federal activities were

already excluded, it is not clear why it was necessary to specify that federal activities that are

physically located near the project were also excluded.

Amended Definition of Effects of the Action (§ 402.02)

The concept of cumulative effects is clearer when read together with the regulation addressing

effects of the action. While a cumulative effects analysis excludes federal actions, the definition

of effects of the action requires Action Agencies and the Services to consider the “past and present

impacts” of federal actions and the “anticipated impacts of all proposed federal projects in the

action area” that have already undergone consultation.40 See Table 1. Note that neither term

requires consideration of future federal actions.

The Action Agencies and the Services must consider the “effects of an action” during the

consultation process. The existing regulations require the Action Agency to discuss the effects of

an action as part of its BA.41 The Service must include a detailed discussion of the effects of an

action in its BiOp.42

The revised regulations modified a term nested within the definition of effects of an action,

indirect effects. Indirect effects were included within the regulation in 1986 in response to a Fifth

Circuit court case requiring the Action Agency to consider indirect effects during consultation. 43

When the 1986 regulation was being drafted, the Services refused to narrow the definition to omit

these effects, stating “the Service declines to narrow the scope of its review (as requested by one

commenter) in light of existing case law.”44

(...continued)

C.F.R. § 1508.7.

50 C.F.R. § 402.12(f)(4)

50 C.F.R. § 402.14(c)(4).

50 C.F.R. § 402.14(g)(3).

50 C.F.R. § 402.14(g)(4).

73 Fed. Reg. at 47874 (August 15, 2008).

50 C.F.R. § 402.02.

50 C.F.R. § 402.12(f)(4).

50 C.F.R. § 402.14(h)(2).

National Wildlife Federation v. Coleman, 529 F.2d 359, 373-74 (5th Cir. 1976) (the fact that the Federal Highway

Administration did not control private development that would result following construction of its highway did not

relieve the agency of its responsibility under Section 7 of the ESA), cert. denied, 429 U.S. 979 (1976).

51 Fed. Reg. at 19932 (June 3, 1986).

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

The revised regulation made two changes to the definition of indirect effects. The Services stated

that these changes would “simplify the consultation process and make it less burdensome and

time-consuming.”45 The first change required the proposed action to be an essential cause of

those indirect effects. According to the Services, an essential cause is a cause that is necessary for

that effect to occur.46 The revision continued: “If an effect will occur whether or not the action

takes place, the action is not an essential cause of the indirect effect.” This suggested that when

multiple stressors affect a species, an Action Agency might not have to consider what harm an

action was doing to a species, if other harms were just as severe, or if the same consequences

would occur without the action.

A similar interpretation of effects of the action was rejected by at least one federal court.

Specifically, the Ninth Circuit rejected an argument that an agency action would not jeopardize a

species because the species was in jeopardy already: “even where baseline conditions already

jeopardize a species, an agency may not take action that deepens the jeopardy by causing

additional harm.”47 Including essential cause seemed to take the position rejected by the court by

saying that if a species is already in jeopardy, an agency action that adds to that harm is not an

essential part of the effect of the action. This appeared contradictory to the fundamental purpose

of the ESA: to conserve threatened and endangered species. The act requires more of agencies

than simply to avoid jeopardizing listed species: they have an affirmative responsibility to

conserve species.48 According to the U.S. Supreme Court, federal agencies have the obligation “to

afford first priority to the declared national policy of saving endangered species” (emphasis

added).49

The second change to indirect effects required that “reasonably certain to occur” must be based on

“clear and substantial information.” This is not the standard of information used throughout the

ESA statute and regulations, which instead use “the best scientific and commercial data

available,” a standard with significant judicial analysis to define it.

Species become threatened, endangered, or extinct for a variety of reasons. Habitat loss or

degradation is the most commonly cited cause, but is rarely the sole cause. Moreover, habitat may

be lost in combination with many threats: both foraging habitat and competition from invasive

species (e.g., in the case of the spotted owl); both foraging habitat and bioaccumulation of toxins

(e.g., in the case of polar bears); and both excessive incidental take and loss of nesting habitat

(e.g., in the case of sea turtles). In these three examples, any one of the threats, if left

uncontrolled, might be sufficient to jeopardize the continued existence of the species and

ultimately lead to its extinction. Would an action that exacerbates just one threat and not another

be eliminated from consideration of the effects of the action in both the BA and the BiOp? The

changes appeared to permit this outcome.

Specifically, the revised rule stated that if the action has “an effect [that] will occur whether or not

the action takes place, the action is not an essential cause of the indirect effect.”50 In practice, it

may have been extremely difficult for the Services to determine whether an effect would occur

73 Fed. Reg. at 47870 (August 15, 2008).

Id.

National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 930 (9th Cir. 2008).

16 U.S.C. § 1536(a)(1).

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).

50 C.F.R. § 402.02.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

regardless of an agency action. The changed definition of effects of the action might have taken

some actions and their effects off the consultation table when a species faced multiple severe

threats as the following examples illustrate: Is a lower basin of a watershed going to receive less

water for endangered fish because of an upstream dam—or also because of increasing frequency

of drought? Will mountaintop species suffer population reductions due to global warming, and

therefore the effects of upwind power plants can be ignored?

Changed Criteria for When a Consultation Is Not Applicable

(§ 402.03)

The existing regulations require a Section 7 consultation for “all actions in which there is

discretionary Federal involvement or control.”51 The consultation requirement had been

interpreted to apply only to those actions that may affect a listed species or critical habitat. At the

time of its promulgation in 1986, the discussion about the previous version of Section 402.03

centered on what was meant by actions, and since then, the focus has been on the term

discretionary.52 The revised regulations changed this section significantly. See Table 1. From

January 15, 2009, to May 4, 2009, an Action Agency had more criteria for when a consultation

did not apply. This section had the most changes between the proposed and the final versions.

How Subsection (b) Determinations Are Recorded

Under the revised regulation, Subsection (b) listed a number of criteria; if any one of the criteria

was met, an agency did not have to consult. These criteria did not indicate what administrative

record would memorialize the application of these criteria. Presumably, these would have been

final agency actions, subject to review under the Administrative Procedure Act (APA), but the

revised regulations provided scant information on how the decisions would be made or recorded.

Additionally, the Action Agencies appeared free to make these determinations without relying on

any standard—not the “best available scientific or commercial data available,” as is used

throughout the statute and regulations, nor “clear and substantial information,” a standard created

in part of these changes.

Considering Take in Deciding Whether a Consultation Applies

Under Subsection (b) of the revisions, no consultation was needed “when the direct and indirect

effects of that action are not anticipated to result in take.”53 The addition of take as a criterion for

when a consultation was required appeared to be a significant change. The standards for

consultation before the revisions turned on questions of jeopardizing the continued existence of a

listed species and modifying its critical habitat. That review considered effects that could be at a

species or landscape level and applied equally to plants and animals. Take, on the other hand, is a

more immediate action, focusing on individual organisms, and taking of plants is not prohibited.54

50 C.F.R. § 402.03.

See National Association of Home Builders, Inc. v. Defenders of Wildlife, 127 S. Ct. 2518 (2007) (holding that

where a statute imposes strict guidelines on when a federal agency must act, the ESA does not apply as an additional

requirement because the action is not discretionary).

50 C.F.R. § 402.03(b).

Under the ESA, take is not a prohibited act when the species is a plant. 16 U.S.C. § 1538(a)(2).

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Had that regulation not been replaced, the result may have been that projects that were unlikely to

result in killing an animal, but might have more marginal effects (small decrease in the number of

eggs laid, lower availability of spawning, degraded habitat, etc.), might have escaped the need for

consultation, even if the long-term effects of the action might have eventually resulted in

jeopardy. The take requirement might have reduced the number of consultations.

The additional criteria also seemed targeted at eliminating consultations. Those criteria were:

•

The action has no effect on a listed species or critical habitat;55

•

The effects of an action are manifested in global processes and cannot be reliably

predicted or measured at the local scale;56

•

The effects of an action are manifested in global processes and would result in

only an extremely small, insignificant local impact;57

•

The effects of an action are manifested in global processes and pose a remote

potential risk of harm to species or habitat;58

•

The effects of an action are not capable of being meaningfully identified or

detected in a manner that permits evaluation;59 or

•

The effects of an action are wholly beneficial.60

If the Action Agency determined that any one of these criteria applied, consultation with

the Services was not required.

Whether the Revisions Improperly Eliminated Some Consultations

Generally speaking, courts have not allowed regulations that eliminate the Services’ role in

ensuring that an agency action will not jeopardize a listed species or adversely modify its critical

habitat. In a case in which regulations had been issued by the Services to allow the Environmental

Protection Agency (EPA) to decide whether to initiate consultation when licensing pesticides, a

federal district court found that the regulations amounted to the Services’ abdicating their role in

consulting to reach the jeopardy decision. 61 Those regulations would have allowed EPA to

determine that its own action was not likely to adversely affect (NLAA) a species and end the

Section 7 process there. The court found the regulation flawed: “A unilaterally-made NLAA

determination cannot be converted into a section 7(a)(2) finding of ‘not likely to jeopardize’

without ‘consultation’ with the relevant Service.”62

On the other hand, a different federal court found the regulations for the National Fire Plan were

not contrary to the ESA because the Services still played an oversight role. In that case, the

50 C.F.R. § 402.03(b)(1).

50 C.F.R. § 402.03(b)(2)(i).

50 C.F.R. § 402.03(b)(2)(ii).

50 C.F.R. § 402.03(b)(2)(iii).

50 C.F.R. § 402.03(b)(3)(i).

50 C.F.R. § 402.03(b)(3)(ii).

Washington Toxics Coalition v. U.S. Department of the Interior, 457 F. Supp. 2d 1158 (W.D. Wash. 2006).

Washington Toxics Coalition, at 1179.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

regulations allowed agency personnel to make NLAA determinations without a concurrence

decision by a Service. The court held that the additional procedures in which the Services would

monitor the program and train the personnel making the determinations adequately served the

Section 7 consultation mandates.63 The National Fire Plan is discussed in a, below.

In practice, Action Agencies decide when to consult. However, the revised regulations could have

been seen as giving more discretion to the agencies and posing the risk of putting the jeopardy

evaluation into the hands of the Action Agency without input from the Services. As the statute

makes clear, the jeopardy decision is required to be a result of the consultation, not to precede it.

On the other hand, it is difficult to see the conservation purpose in requiring consultations that

have no effects on species or have wholly beneficial ones. Ultimately, however, it is the Action

Agency that decides whether to consult, so any consultation is due to initiation of the process by

the Action Agency. The changes would have provided a clearer regulatory justification for when

they chose not to consult.

According to the Federal Register notice of the revised regulation,

many commenters asserted the Services cannot allow action agencies to make applicability

determinations as set out in the rule. That is, they asserted that action agencies cannot decide,

without formal or informal consultation with the Services, that their action has no effect or is

essentially not likely to adversely affect listed species or critical habitat.64

The Services addressed comments challenging the revisions to Section 402.3 in two ways. First,

the Services noted that the statute did not define “consultation” or “assistance.” Second, the

Services asserted that “shall” in the statute at 16 U.S.C. § 1536(a)(2) did not modify consultation

and assistance, but modified the portion of the sentence addressing jeopardy of the species and

protection of habitat. Section 1536(a)(2) says, in relevant part:

Each Federal agency shall, in consultation with and with the assistance of the Secretary,

insure 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 habitat of such species....

The Services’ first assertion appears to defy the plain meaning of the two words the Services

(correctly) note are undefined in the statute. The Services said “these terms are quite broad and

suggest that Congress has provided a great deal of discretion to define consultation and assistance

in this provision.”65 While Congress may have provided discretion to define how these terms are

applied, as a basic premise of statutory interpretation, in the absence of a definition the ordinary

meaning will prevail. 66 In this case, under their common meanings neither consultation nor

assistance can be defined as a unilateral action. Both require interaction with another party. That

other party is established by the ESA as one of the Services.

Defenders of Wildlife v. Kempthorne, 2006 WL 2844232 (D.D.C. September 29, 2006).

73 Fed. Reg. at 76279.

See, e.g., Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (defining marketing); Federal Deposit Insurance

Corp. v. Meyer, 510 U.S. 471, 476 (1994) (defining cognizable); Mallard v. United States, 490 U.S. 296, 301 (1989)

(defining request).

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

The second assertion was that “shall” did not pertain the phrase directly following it—“in

consultation with and with the assistance of the Secretary.” The Services said “we believe the

mandatory term ‘shall’ in section 7(a)(2) refers to the obligation of the action agency to avoid

jeopardy or destruction or adverse modification of critical habitat, not to a requirement to consult

on each and every action.”67 This interpretation would mean that the statute requires Action

Agencies to ensure their actions do not jeopardize species or harm critical habitat, but that the

consultation and assistance section is optional. To a certain extent, this is the way Section 7

consultations have been conducted—Action Agencies do not consult on apparently ecologically

trivial actions with no effect on a species or habitat. However, many commenters expressed

concern that the revised regulations went too far in excusing consultations.

The Services also referred to a D.C. district court decision as support of their argument that

Action Agencies may opt out of consultations in certain circumstances. The Services referred to

Defenders of Wildlife v. Kempthorne,68 saying that the court rejected a broad interpretation of

Section 7 requiring Action Agencies to consult on each and every action. This may be an overly

broad interpretation of that holding.

While the court did not require consultations on every action, the court stated that if there were a

“possibility” of an effect on a species or habitat, the Action Agency must proceed to informal

consultation.69 Consultations were not required only if there were no effect:

Congress intended to allow Action Agencies to initially evaluate the potential environmental

consequences of federal actions and to move forward on many of them without first

consulting the Services if they concluded that they had ‘no effect’ on listed species and their

critical habitat.70

It is not clear whether the court would have considered “small,” “insignificant,” “remote,” or

“local” impacts (the language within revised Section 402.3(b)(2)) the same as no effect, or more

similar to the possibility of an effect, and thus requiring informal consultation.

The Action Has No Effect on a Listed Species or Critical Habitat (§ 402.03(b)(1))

Section 402.03(b)(1) of the revised regulation allowed the Action Agency to decide that its action

had no effect on a listed species or designated critical habitat without any consultation. This

would have had the practical effect of eliminating consultations where species would not be

impacted, which seemed consistent with the goal of the statute and was likely to promote

efficiency for that reason.

There has always been a tension between the plain language of Section 7 and its practical

application. Section 7(a)(2) requires Action Agencies to ensure that any action is not likely to

jeopardize protected species or adversely affect their critical habitats. Logic dictates that not all

actions—ordering office supplies, for example—require consultation. The statute requires

agencies to determine that their actions will not commit the harm described with the “assistance

73 Fed. Reg. at 76279.

2006 U.S. Dist. LEXIS 71137 (D.D.C. Sept. 29, 2006). The same decision states that the duty to insure that harm

does not occur is done “in ‘consultation’ with the Services,” suggesting a mandatory role for the Services. Id. at 8.

2006 U.S. Dist. LEXIS 71137, *9 (D.D.C. Sept. 29, 2006).

2006 U.S. Dist. LEXIS 71137, *60 (D.D.C. Sept. 29, 2006).

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

of the Secretary” and “in consultation with” the Secretary. However, the Consultation Handbook

of the Services provides that if an Action Agency determines that its action will have no effect on

a species, it does not need to initiate consultation.71 On the other hand, by allowing an Action

Agency to decide initially that its project will have no effect, the regulations would read more like

NEPA, which requires agencies to act if a project would have significant impacts on the

environment.72 That may be a more realistic approach to consultations, but it is arguably outside

the Services’ authority to create such a regulatory scheme.

The Action Is Manifested Only Through Global Processes (§ 402.03(b)(2))

This factor appears to have addressed the Services’ intent to separate climate change issues from

the ESA, although the revised regulations did not expressly refer to climate change. The revised

version of Subsection (b)(2) was different from the proposed revision in several ways. Under the

proposed version, consultation would not have been required if the action were “an insignificant

contributor to any effects on a listed species or critical habitat.” That language was completely

eliminated from the final revision. Instead, the revised regulations referred to global processes,

which was not defined in the regulations. In the notice of the final version, the Services had

suggested that global processes could be synonymous with climate change: “The most topical

example of effects that would be manifested only through a global process is the effects of

individual sources of greenhouse gas emissions and their contribution to global climate change

and warming.”73 The revised regulations stated that if effects of an agency action were evidenced

only by global processes and one of three conditions occurred, consultation did not apply to that

action. Specifically, consultation was not necessary if those effects:

•

could not be reliably predicted or measured at the local scale, or

•

would result in an extremely small, insignificant local impact, or

•

had a remote potential risk of harm to species or habitat.74

The Services indicated that the addition of “global processes” was an attempt to limit the

application of Section 402.3(b).75 Because this change was more than mere semantics, it was

exposed to the claim that it lacked public notice and comment. While final regulations are

expected to have some changes from the draft version—notably, improvements based on

comments—the final rule must be “the logical outgrowth of the proposed rule.”76 When a change

is so different from the draft that it is considered unforeseeable, a court could find the change

violated the APA requirements of giving the public notice and the opportunity to comment on

regulatory changes. 77

FWS and NMFS, Final ESA Section 7 Consultation Handbook, pp. 3-12 (March 1998) (hereinafter Consultation

Handbook).

42 U.S.C. § 4322(c) requires a detailed statement for “major Federal actions significantly affecting the quality of the

human environment.”

73 Fed. Reg. at 76282.

36 C.F.R. §§ 402.3(b)(2)(i) – (iii).

73 Fed. Reg. at 76279.

NRDC v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002).

See, e.g., Citizens for Better Forestry v. U.S. Dept. of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007) (rejecting

a final rule because it was a paradigm shift from the draft rule).

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

This subsection seemed to require certain analyses to occur before consultation would be

determined to apply. This appeared in the requirement that an Action Agency should evaluate the

effects of an action to decide whether a consultation was applicable. Based on the definition of

effects of an action, this evaluation required an agency to consider an environmental baseline and

indirect and direct effects of its proposed action, and formed a significant portion of the

consultation review. Under the existing regulations, that evaluation occurs during a consultation

as part of a BA and a BiOp. The revised section 402.03(b) brought that phrase into a different part

of the Section 7 process. If the revised regulation were taken at face value, the effects of an action

would have had to be scrutinized in the context of global processes. This meant the revised

regulations would have required Action Agencies to perform much of the work of a consultation

before even determining one was required.

Another potential result of the revised regulations was that more actions could have advanced to

consultation than under the proposed version. The Services indicated that the revisions were

designed to create a “very narrow” exception to consultation.78 Initially, the Services proposed

rejecting consultations when effects were insignificant contributors to an effect on a species.

Under that proposal, for example, it would have been difficult to argue that a single Title V permit

issued under the Clean Air Act was responsible for the global warming that put endangered coral

at risk. However, under the revised regulation, it was possible to argue that the effects of the

permitting process are manifested through global processes and are predictable at a local level.

Warmer oceans mean weaker coral. However, the Services argued that the effects must be

considered only for those global processes produced by the one action, and that the result of one

power plant’s emissions could not be measured at the local scale.79

A second way in which the revised version appeared to advance more actions to consultation than

would have occurred under the proposed revision is under Subsection (b)(2)(iii). Under the

proposed version, if the effects of an action on listed species or critical habitat were “such that

potential risk of jeopardy to the listed species or adverse modification or destruction of the critical

habitat is remote,” no consultation was required. The Services revised this due to public

comment. The revised regulation read that if the effects are manifested only through global

processes and “are such that the potential risk of harm to species or habitat is remote” then no

consultation was required.80 The distinction is between jeopardizing a listed species versus

harming a listed species, and adversely modifying or destroying critical habitat versus harming

habitat. These terms have precise meaning in ESA practice. Jeopardizing a species means the

action is likely to cause the species to become extinct.81 Harming a species, on the other hand,

suggests injuring or killing a specific creature.82 The same disparity occurred regarding habitat, in

that destroying critical habitat is not as severe as harming habitat, especially when this appeared

to apply to all habitat, and not merely that area specifically designated as critical. Accordingly, the

revised regulation may have required consultation for less harmful actions than the Services had

initially proposed, thereby increasing the number of consultations.

73 Fed. Reg. at 76282.

73 Fed. Reg. 76282.

The Services indicated that this change is also intended to limit consultations for projects with greenhouse gas

emissions. 73 Fed. Reg. at 47872.

50 C.F.R. § 402.02.

50 C.F.R. § 17.3.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

The Effects Are Not Capable of Being Meaningfully Identified or Detected

(§ 402.03(b)(3)(i))

This amendment also appeared intended to limit climate change challenges based on the ESA by

requiring an identifiable link between the agency’s action and the specific harm. No consultation

was required if the effects of the action “are not capable of being meaningfully identified or

detected in a manner that permits evaluation.” This determination would be made by the Action

Agency before the consultation process started, and it is not clear what scientific standards would

have been used to make this determination. According to the Services, the Consultation

Handbook indicates “best judgment” would be used.83 Because Section 402.03(b) clearly

addressed both direct and indirect effects, it may be presumed that the reference to effects meant

both. This suggested that the Action Agency would perform some form of an effects analysis

prior to deciding whether a consultation would be required.

The Action is Wholly Beneficial (§ 402.03(b)(3)(ii))

Under the revised regulations, an Action Agency could decide consultation was not necessary if

the action would be wholly beneficial to the species. That rule would have promoted efficiency in

the Section 7 process by eliminating unnecessary consultations. A similar provision is in the

Consultation Handbook, but indicates the decision is made only after production of a BA or other

similar document. 84 The revised regulation appeared to eliminate the Services’ oversight under a

strict reading of the statute, but when taken in light of the purposes of the statute, appeared

consistent with the ESA’s goals.

Consultation for Only Some Effects of an Action (§ 402.03(c))

The above factors from Subsection (b) were linked by an “or,” suggesting that any one of them

could have been the basis for an Action Agency not to initiate consultation. Subsection (c)

discussed what would happen if some of the Subsection (b) criteria applied and some did not:

If all of the effects of an action fall within paragraph (b) of this section, then no consultation

is required for the action. If one or more but not all of the effects of an action fall within

paragraph (b) of this section, then consultation is required only for those effects of the action

that do not fall within paragraph (b).

This was an additional suggestion that Action Agencies would be performing a complicated

effects analysis for determining whether they must consult with the Services. It seemed

Subsection (c) could allow agencies to segment their projects and initiate consultation only for

those parts that may have had an effect that is significant, identifiable, and would pose more than

a remote risk of jeopardy. The Services used power plant emissions as an example, saying that the

immediate, local effect of the emissions may require consultation, but the climate change aspects

would not.85 Because these determinations appeared to be made by an Action Agency without the

consultation or assistance of the Services, they were arguably contrary to the ESA.

73 Fed. Reg. at 76283 (the Services indicate this occurs on p. xv, but no such page was found. CRS found it in

Section 3.5 on page 3-12 of the Consultation Handbook).

Consultation Handbook, pp. 3-12.

See 73 Fed. Reg. at 76282-83.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

There appears to be an inconsistency between the revisions in Subsection (c) and those in Section

402.13. Subsection (c) permitted an agency to consult for only part of a project. However, the

changes to Section 402.13—informal consultations—required an Action Agency to consider “the

effects of the action as a whole.” In that case, whatever aspects of the action that were not

advanced to consultation could have been considered during the consultation anyway, when the

agency considered the effects of the action as a whole.

Informal Consultation (§ 402.13)

The existing regulations distinguish between informal consultations and formal consultations,

making a practical distinction based on the likely severity of an action’s impacts. The informal

consultation regulation was designed to provide a more efficient way of evaluating ESA effects

by stopping the consultation process for projects that “upon further informal review, are found not

likely to adversely affect a listed species or critical habitat.”86 If it agrees, the Service is required

to concur with the Action Agency’s determination of “not likely to adversely affect” in writing.

The revised regulations made procedural changes and substantive additions to the informal

consultation process that are no longer in effect.

Dividing Projects into Segments or Combining Projects for Consultations

The first change modified the scope of what was reviewed in an informal consultation. The

existing regulations state, “If during informal consultation it is determined by the Federal agency

... that the action is not likely to adversely affect listed species or critical habitat, the consultation

process is terminated, and no further action is necessary.”87 The revised regulation increased the

scope beyond the agency action to include other relevant projects. Section 402.13(a) read: “If

during informal consultation it is determined by the Federal agency that the action, or a number

of similar actions, an agency program, or a segment of a comprehensive plan is not likely to

adversely affect listed species ... the consultation process is terminated ... if the Service concurs in

writing.” This appeared to allow one informal consultation for related projects, which could have

promoted efficiency by allowing one review and one concurrence by the Service. Determining

when actions were in fact “similar,” however, could have been controversial.

It is also not clear whether the Action Agency would have had to determine unilaterally whether

consultation would occur on one action or similar actions, or whether the decision to aggregate

actions would have required the written concurrence of the Service. It appeared that the

concurrence referred to the “not likely to adversely affect” determination. However, it was

ambiguous and could mean the Service had to agree as to the relatedness of the actions, too.

Another significant issue is whether considering only a “segment of a comprehensive plan” could

obscure the full agency action and thwart consideration of the adverse effects that may result from

the entire project. The Ninth Circuit rejected an attempt to isolate a portion of a project when

considering whether an action would be likely to jeopardize a species.88

51 Fed. Reg. at 19948 (June 3, 1986).

50 C.F.R. § 402.13(a).

National Wildlife Federation v. National Marine Fisheries Services, 524 F.3d 917, 933 (9th Cir. 2008) (holding that

NMFS incorrectly considered only the discretionary actions of a project by isolating the non-discretionary ones in its

BiOp).

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Considering the Effects When Making a Request

A second change to the existing regulations altered the substance of the informal consultation

review. That revision stated: “For all requests for informal consultation, the Federal agency shall

consider the effects of the action as a whole on all listed species and critical habitats.”89 As

discussed earlier, effects of the action appears in the context of an Action Agency’s BA in formal

consultations. This would have added that evaluation to informal consultations as well, and may

have increased the burden of informal consultations without necessarily offering relief from the

formal consultation process.

Deadline for a Service’s Response

The revised regulations changed the informal consultation process by adding a deadline for a

Service to provide a written response with the Action Agency’s determination of not likely to

adversely affect. If a Service had not responded within 60 days of the Action Agency’s

notification of its NLAA determination, the consultation could be terminated without the

Service’s concurrence. 90 The Services were allowed to extend the deadline by an additional 60

days, and consultation could have continued beyond this term if all the parties agreed. Section

402.13(b) stated that this termination meant that Section 7(a) was satisfied. While the deadline

may have spurred efficiency by forcing a response from the Service, it also could have violated

the statute’s purpose of having the Service and the Action Agency determine a project’s potential

harms using the best scientific and commercial data available. Additionally, as pointed out in a

GAO report referred to by the Services, having adequate staff to address consultations was a

problem. 91 The time limit could have allowed projects that may have posed jeopardy to move

forward due to default, or led to hasty conclusions by the Services.

Is a Request a Formal Document?

The revised regulation appeared to create a new document for informal consultations: a request.

Based on the new deadline requirement, a request could serve an important procedural role by

marking the date on which the consultation started. However, the revised regulations did not

define request. A request marked the start of the informal consultation period under the revisions,

suggesting that a written document may have been required as a record of the date. When read

with the requirement that the Action Agency must consider the effects of an action when making

a request, these changes escalated the informal consultation process, making it more like a formal

one. The existing regulations do not require a specific request for informal consultation—a series

of phone calls could start the process.

Formal Consultation (§ 402.14)

The only change to the formal consultation process was a link to the deadline imposed by the

informal consultation. The revised regulation stated that formal consultation was not required

50 C.F.R. § 402.13(a).

50 C.F.R. § 402.13(b).

GAO, ESA: More Federal Management Attention Is Needed to Improve the Consultation Process, GAO-04-93, p. 4

(March 2004).

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

under two circumstances: (1) if the Service agreed in writing that the action is not likely to

adversely affect a listed species; or (2) if informal consultation had been completed without a

written concurrence from the Service within the appropriate time. 92

Overall, the potential effects of the changes included blurring the distinction between informal

and formal consultation. Both would (presumably) begin with written requests, both would

involve analyses of effects of the action, and both would have time limits for completion. 93

Informal consultation could become more formalized. Also, Action Agencies could be relieved

from official formal consultations in the case of a default by the Services regardless of the impact

of their projects.

The revised processes for informal and formal consultation raised a number of questions. The

regulations might have created a perverse incentive to provide inadequate information because an

agency could submit incomplete data in hopes that an already overburdened Service would miss

its deadline and the project could proceed. (This would involve the Action Agency’s assuming the

risk of potentially taking a listed species without an Incidental Take Statement (ITS).) If the

Services must judge whether a project may affect a species or critical habitat in a very limited

time, would the Services issue fewer concurrences and require more projects to advance to formal

consultation? If so, rather than decreasing the Services’ responsibilities, the changes might

increase their work load.

Climate Change and the Changed Regulations

In the notice of the proposed rule, the Services stated that there was no requirement to consult on

greenhouse gas (GHG) emissions’ contribution to global warming.94 Some of the revised

regulations separated projects that may affect climate change from the consultation process.

Before discussing climate change in this context, it should be noted that the purpose of the

consultation process is to consider the effects of agency actions on listed species and their

habitats—not the effects of climate change on listed species. There are few agency actions that

produce GHGs directly. Most actions result in permits or licenses for others to produce the gases.

Therefore, arguably, agency actions would have only indirect effects on producing GHGs, which

then could affect climate change. The Services have argued that the lack of causation is the reason

actions authorizing GHG emissions do not require consultation:

There is currently no way to determine how the emissions from a specific project under

consultation both influence climate change and then subsequently affect specific listed

species or critical habitat, including polar bears. As we now understand them, the best

scientific data currently available does not draw a causal connection between GHG

emissions resulting from a specific Federal action and effects on listed species or critical

habitat by climate change, nor are there sufficient data to establish the required causal

proposed 50 C.F.R. § 402.14(b).

Under current regulations, the deadline for formal consultation on projects that do not involve an applicant (for a

license, permit, etc.) may be extended by mutual consent of the Action Agency and the Service (§ 402.14(f)).

73 Fed. Reg. at 47872.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

connection to the level of reasonable certainty between an action’s resulting emissions and

effect on species or critical habitat.95

The revised regulations advanced the Services’ position that an ESA consultation should not

consider the effects of GHG emissions. The Services gave these reasons for why GHG emissions

from a project are not part of consultation:

•

impacts associated with global warming do not constitute “effects of the action”

because they are not an essential cause of the effects (§ 402.02);

•

GHG emissions may be an “insignificant contributor” to any adverse impacts

(proposed § 402.03(b)(2)) [this was eliminated in the final version];

•

GHG emissions may not be “capable of being meaningfully identified or detected

in a manner that permits evaluation” (§ 402.03(b)(3)(i)); and

•

the potential risk of harm to species or habitat from those GHG emissions is

remote (§ 402.03(b)(3)(iii)) [this was moved to 402.03(b)(2)(iii) and revised in

the final version].96

The revised regulations, however, did not expressly refer to GHGs, but instead used the term

global processes, which is undefined. The Services indicated they chose global processes as a

way to limit application of the revised section of when consultation is needed, to exclude only

those evaluations involving climate change. 97 It is not clear why they did not do so directly by

referring to climate change, rather than using what could be found to be a vague term. Global

processes could include such other interrelated factors as El Niño, changing drought patterns, and

rising sea levels.

Most scientists agree that countless sources of GHG emissions are driving climate change. Under

the revised regulations, however, GHG emissions from a particular or narrowly defined agency

action would not have been considered an essential cause of any climate change effects on a

species. Under the revised regulations, an agency action must be an essential cause of an effect

on a species for it to be considered after the consultation process has begun. The Services

described essential cause as meaning “the effect would not occur ‘but for’ the action under

consultation.... there must be a close causal connection between the action under consultation and

the effect that is being evaluated.”98 The causal link to affect a species is arguably quite tenuous:

GHG emissions must first affect climate change, which then must affect an ecosystem, which

then must affect a species.

The remaining changes in the rule influence how the Action Agency decides whether consultation

applies to an action. Actions that manifest themselves in global processes, which presumably

would include increased GHGs, would require consultation under certain circumstances, such as

if the local impacts could be reliably predicted, or the local impacts were more than “extremely

small, insignificant.” Here, in the context of GHGs, the aggregation of actions could be key.

According to the Services, EPA modeling indicated that “the emissions of a very large coal-fired

power plant would likely result in a rise in the maximum global mean temperature of less than

73 Fed. Reg. 28305, 28313 (May 15, 2008) (special rules for polar bears).

73 Fed. Reg. at 47872.

73 Fed. Reg. at 76282.

73 Fed. Reg. at 47870.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

one-thousandth of a degree.”99 However, an agency action that consists of a permitting process

involving hundreds of GHG sources may be significant.

Projects leading to GHG emissions may not have required consultation if the effects of the action

could not be meaningfully identified or detected “in a manner that permits evaluation.” It is not

clear what might have constituted an evaluation. For example, there may be enough data to

determine whether an effect will be positive or negative, but not the magnitude of the effect. The

standard for this evaluation may be the best available scientific information, in which case such

an evaluation may suffice. The Services said the decision would be “based on best judgment.”100

Another change to the current regulations that the Services have indicated will exclude some

consultations on projects with GHG emissions, was the provision that the effects of the action

must be such that the “potential risk of harm to species or habitat is remote.” Remote has many

meanings. Noting that the provision containing the term had been modified, the Services

indicated that remote could apply to time, space, probability of occurrence, or other things.101 The

complexities of global climate modeling make such an assessment on an individual project

problematic.

In the context of GHG emissions and global climate change, the question of aggregation of

actions upon which to consult appears to be pivotal. The revised regulations allowed agencies to

consider not just an agency action but “a number of similar actions, an agency program, or a

segment of a comprehensive plan.”102 This seems targeted toward efficiency, but consolidated

agency actions could have a much bigger impact than would be measurable for an individual

action, and arguably constitute an essential cause of an indirect harm. However, it is not clear

from the revision whether the decision to submit just one action or a combined program for

review was at the discretion of the Action Agency or required the concurrence of the Service.

Proponents of the changes contend that GHG emissions from most agency actions do not have a

causal effect on species and that the ESA should not be used to regulate GHG emissions. Others

argue that climate change has an impact on species and should be considered under ESA

consultations, although proponents maintain that the number of federal agency actions with the

potential to affect climate change may be so large as to overwhelm the Services. 103 In the lawsuit

challenging the regulations, the plaintiffs argued that omitting climate change from the

consultation requirement leads to an inconsistent result: species may be listed as a result of

climate change, but actions that contribute to climate change would not have to be reviewed by

the Services to determine their effect on listed species and their environments. 104 At least one

federal court required the Services to consider climate change as part of a Section 7

consultation.105

73 Fed. Reg. at 76283.

73 Fed. Reg. at 76284 (referring to the Consultation Handbook).

101

73 Fed. Reg. at 76283.

102

50 C.F.R. § 402.13.

103

John Kostyack and Dan Rohlf, Conserving Endangered Species in an Era of Global Warming, 38 ELR 10203 (April

2008).

104

Center for Biological Diversity v. Kempthorne, No. CV-08-5546, at 18 (N.D. Cal. filed Dec. 10, 2008).

105

Natural Resources Defense Council v. Kempthorne, 506 F. Supp. 2d 322, 369 (E.D. Cal. 2007).

100

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Table 1. Comparison of Previous Regulations

to Revised Regulations

(Proposed deletions from the current regulations are marked by brackets and written in italics. Proposed

additions to the regulations are in bold type.)

Previous Versiona of Title

50 C.F.R.

Final Versiona

402.02 - Definition of Biological Assessment

Biological assessment refers to the information prepared

by or under the direction of the Federal agency

concerning listed and proposed species and designated

and proposed critical habitat that may be present in the

action area and the evaluation of potential effects of the

action on such species and habitat.

Biological assessment means the information prepared

by or under the direction of the Federal agency

concerning listed and proposed species and designated

and proposed critical habitat that may be present in the

action area and the evaluation of potential effects of the

action on such species and habitat. A biological

assessment may be a document prepared for the

sole purpose of interagency consultation, or it

may be a document or documents prepared for

other purposes (e.g., an environmental

assessment or environmental impact statement)

containing the information required to initiate

the consultation. The Federal agency is required

to provide the Services a specific guide or

statement as to the location of the relevant

consultation information as described in 402.14,

in any alternative document submitted in lieu of

a biological assessment.

402.02 - Definition of Cumulative Effects

Cumulative effects are those effects of future State or

private activities, not involving Federal activities, that are

reasonably certain to occur within the action area of the

Federal action subject to consultation.

Congressional Research Service

Cumulative effects means those effects of future State

or private activities, not involving Federal activities, that

are reasonably certain to occur within the action area of

the Federal action subject to consultation. Cumulative

effects do not include future Federal activities

that are physically located within the action area

of the particular Federal action under

consultation.

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Previous Versiona of Title

50 C.F.R.

Final Versiona

402.02 - Definition of Effects of the Action

Effects of the action refers to the direct and indirect

effects of an action on the species or critical habitat,

together with the effects of other activities that are

interrelated or interdependent with that action, that will

be added to the environmental baseline. The

environmental baseline includes the past and present

impacts of all Federal, State, or private actions and other

human activities in the action area, the anticipated impacts

of all proposed Federal projects in the action area that

have already undergone formal or early section 7

consultation, and the impact of State or private actions

which are contemporaneous with the consultation in

process. Indirect effects are those that are caused by the

proposed action and are later in time, but still are

reasonably certain to occur. Interrelated actions are

those that are part of a larger action and depend on the

larger action for their justification. Interdependent actions

are those that have no independent utility apart from the

action under consideration.

Effects of the action means the direct and indirect

effects of an action on the species or critical habitat,

together with the effects of other activities that are

interrelated or interdependent with that action[,] that

will be added to the environmental baseline. The

environmental baseline includes the past and present

impacts of all Federal, State, or private actions and other

human activities in the action area, the anticipated

impacts of all proposed Federal projects in the action

area that have already undergone formal or early section

7 consultation, and the impact of State or private actions

which are contemporaneous with the consultation in

process. Indirect effects are those for which the

proposed action is an essential cause, and that

are later in time, but still are reasonably certain to

occur. If an effect will occur whether or not the

action takes place, the action is not an essential

cause of the indirect effect. Reasonably certain to

occur is the standard used to determine the

requisite confidence that an effect will happen. A

conclusion that an effect is reasonably certain to

occur must be based on clear and substantial

information. Interrelated actions are those that are

part of a larger action and depend on the larger action

for their justification. Interdependent actions are those

that have no independent utility apart from the action

under consideration.

402.03 - Applicability

Section 7 and the requirements of this part apply to all

actions in which there is discretionary Federal

involvement or control.

(a) Section 7 and the requirements of this part apply to

all actions in which the Federal agency has

discretionary involvement or control.

(b) Federal agencies are not required to consult

on an action when the direct and indirect effects

of that action are not anticipated to result in

take and:

(1) Such action has no effect on a listed species

or critical habitat; or

(2) The effects of such action are manifested only

through global processes and (i) cannot be

reliably predicted or measured at the local scale,

or (ii)would result at most in an extremely small,

insignificant local impact, or (iii) are such that

the potential risk of harm to species or habitat is

remote; or

(3) The effects of such action:

(i) Are not capable of being meaningfully

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Previous Versiona of Title

50 C.F.R.

Final Versiona

identified or detected in a manner that permits

evaluation; or

(ii) Are wholly beneficial.

paragraph (b) of this section, then no

consultation is required for the action. If one or

more but not all of the effects of an action fall

within paragraph (b) of this section, then

consultation is required only for those effects of

the action that do not fall within paragraph (b) of

this section.

402.13 - Informal Consultation

(a) Informal consultation is an optional process that

includes all discussions, correspondence, etc., between

the Service and the Federal agency or the designated nonFederal representative, designed to assist the Federal

agency in determining whether formal consultation or a

conference is required. If during informal consultation it is

determined by the Federal agency, with the written

concurrence of the Service, that the action is not likely to

adversely affect listed species or critical habitat, the

consultation process is terminated, and no further action

is necessary.

(b) During informal consultation, the Service may suggest

modifications to the action that the Federal agency and

any applicant could implement to avoid the likelihood of

adverse effects to listed species or critical habitat.

(a) Informal consultation is an optional process that

includes all discussions, correspondence, etc., between

the Service and the Federal agency or the designated

non-Federal representative, designed to assist the

Federal agency in determining whether formal

consultation or a conference is required. If during

informal consultation it is determined by the Federal

agency, [with the written concurrence of the Service,] that

the action, or a number of similar actions, an

agency program, or a segment of a

comprehensive plan, is not likely to adversely affect

listed species or critical habitat, the consultation process

is terminated, and no further action is necessary if the

Service concurs in writing. For all requests for

informal consultation, the Federal agency shall

consider the effects of the action as a whole on

all listed species and critical habitats.

(b) If the Service has not provided a written

determination regarding whether it concurs with

a Federal agency’s determination provided for in

paragraph (a) of this section within 60 days

following the date of the Federal agency’s

request for concurrence the Federal agency may,

upon written notice to the Service, terminate

consultation. The Service may, upon written

notice to the Federal agency within the 60-day

period, extend the time for informal consultation

for a period no greater than an additional 60

days from the end of the 60-day period. If the

Federal agency terminates consultation at the

end of the 60-day period, or if the Service’s

extension period expires without a written

statement whether it concurs with a Federal

agency’s determination provided for in

paragraph (a) of this section, the consultation

provision in section 7(a)(2) is satisfied.

(b), the Service, the Federal agency, and the

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Previous Versiona of Title

50 C.F.R.

Final Versiona

applicant, if one is involved, may agree to extend

informal consultation for a specific time period in

order to resolve consultation informally and

allow the Service to concur with the Federal

agency’s not likely to adversely affect

determination.

(d) During informal consultation, the Service may

suggest modifications to the action that the Federal

agency and any applicant could implement to avoid the

likelihood of adverse effects to listed species or critical

habitat.

402.14 - Formal Consultation

(a) Requirement for formal consultation. Each Federal agency

shall review its actions at the earliest possible time to

determine whether any action may affect listed species or

critical habitat. If such a determination is made, formal

consultation is required, except as noted in paragraph (b)

of this section. The Director may request a Federal

agency to enter into consultation if he identifies any

action of that agency that may affect listed species or

critical habitat and for which there has been no

consultation. When such a request is made, the Director

shall forward to the Federal agency a written explanation

of the basis for the request.

(a) Requirement for formal consultation. Each Federal

agency shall review its actions at the earliest possible

time to determine whether any action may affect listed

species or critical habitat. If such a determination is

made, formal consultation is required, except as noted

in paragraph (b) of this section. The Director may

request a Federal agency to enter into consultation if he

identifies any action of that agency that may affect listed

species or critical habitat and for which there has been

no consultation. When such a request is made, the

Director shall forward to the Federal agency a written

explanation of the basis for the request.

(b) Exceptions. (1) A Federal agency need not initiate

formal consultation if, as a result of the preparation of a

biological assessment under Sec. 402.12 or as a result of

informal consultation with the Service under Sec. 402.13,

the Federal agency determines, with the written

concurrence of the Director, that the proposed action is

not likely to adversely affect any listed species or critical

habitat.

(b) Exceptions. (1) A Federal agency need not initiate

formal consultation if, as a result of the preparation of a

biological assessment under Sec. 402.12 or as a result of

informal consultation with the Service under Sec.

402.13, the Federal agency determines [with the written

concurrence of the Director], that the proposed action is

not likely to adversely affect any listed species or critical

habitat, and the Director concurs in writing or

informal consultation has been completed under

§ 402.13(b) without a written statement by the

Service as to whether it concurs; {sections (c)-(k)

unmodified}

{sections (c) - (k) omitted}

Source: Code of Federal Regulations and 73 Fed. Reg. 76272 (Dec. 16, 2008).

As of May 4, 2009, the regulations marked Final Version on this chart were replaced by the regulations

marked Previous Version.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Appendix A. Internal Consultation: The National

Fire Plan (NFP) of the Healthy Forests Initiative

The National Fire Plan, part of the Healthy Forests Initiative, is administered primarily by the

Bureau of Land Management (BLM) and the Forest Service (FS).106 Joint regulations were issued

in 2003 to address the effects of increasing levels of wildfires on listed species. Among other

things, those regulations turn consultation into a process that occurs wholly within BLM or FS,

without concurrence by a Service, when the Action Agency finds its project is not likely to

adversely affect a listed species.107 These regulations were issued under the provision for

counterpart regulations,108 which some have suggested could be used as an alternative to the

regulatory changes proposed.

In some respects, proposed Sections 402.03(b) and 402.03(c) resemble the internal consultations

that were created under the NFP. A review of the delegation of some ESA consultation

responsibilities to the NFP agencies may illuminate possible results for similar delegations

apparently envisioned in the proposed regulations.

In January 2008, the Services, FS, and BLM issued a joint report on the NFP in its first full year

of experience with these counterpart regulations (FY2004).109 The Services reviewed whether the

two Action Agencies met the various ESA requirements in their preparation of BAs. FS and BLM

documents for their internal review were required to do the following:

•

describe the federal action clearly;

•

describe the action’s direct and indirect environmental effects;

•

describe the specific area that may be affected by the action;

•

identify the listed species and the designated critical habitat that may be affected;

•

compare the list of species and the potential effects to determine if exposure is

likely, and if so, whether any exposure is likely to be beneficial, insignificant, or

discountable; and

106

The National Fire Plan (NFP) started as a response by the Clinton Administration to the severe fire season of 2000.

It was primarily a request for supplemental appropriations for wildfire suppression and additional wildfire fuel

reduction, and was largely enacted in the 2001 Interior appropriations act. Congress has provided funds at much higher

levels since then. Following the 2002 fire season, the Bush Administration proposed the Healthy Forests Initiative to

expand the NFP. Portions of the Initiative were enacted in the Healthy Forests Restoration Act (P.L. 108-148). Other

portions to expedite fuel reduction efforts were effected through regulatory changes, one of which was the ESA

counterpart regulations examined in this appendix. For more information and analysis on the NFP and the Healthy

Forests Initiative, CRS Report RL33792, Federal Lands Managed by the Bureau of Land Management (BLM) and the

Forest Service (FS): Issues for the 110th Congress, by (name redacted) et al.

107

50 C.F.R. § 402.31. See Defenders of Wildlife v. Kempthorne, 2006 wl 2844232 (D.D.C. September 29, 2006)

(upholding the regulations because of the role played by the Services).

108

The other counterpart regulation issued, for EPA pesticide licensing, was ruled as violating the ESA. Washington

Toxics Coalition v. EPA, 457 F. Supp. 2d 1148 (W.D. Wash. 2006).

109

NMFS, FWS, FS, and BLM, Use of the ESA Section 7 Counterpart Regulations for Projects that Support the

National Fire Plan: Program Review: Year One (January 11, 2008) (hereinafter ESA/NFP Review). Available online at

http://www.nmfs.noaa.gov/pr/pdfs/laws/fireplanreview.pdf.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

•

use the best available scientific and commercial data.110

NMFS and FWS constructed separate analyses of the results. Table A-1 is the summary of the 10

projects involving species under NMFS management; Table A-2 and Table A-3 summarize the 50

projects with FWS species. The NMFS review concluded that there were deficiencies in all 10

project assessments in five of the six criteria for evaluation, including the use of the best available

scientific information.111

Table A-1. Number of Projects Reviewed by NMFS that Did Not Meet Specified

Criteria

(FS: 9 projects; BLM: 1 project)

Product/Criterion

Yes

Procedural Checklist was submitted with BA

(1)

Identifies proposed actions clearly (includes a description of various components of the

action)

(2)

Identifies spatial and temporal patterns of the action’s direct and indirect environmental

effects, including direct and indirect effects of interrelated and interdependent actions

(3)

Identifies Action Area clearly (based on information in 2)

(4)

Identifies all threatened and endangered species and any designated critical habitat that may

be exposed to the proposed action (includes a description of spatial, temporal, biological

characteristics and constituent habitat elements appropriate to the project assessment)

(5)

(6)

Compares the distribution of potential effects (identified in 2) with the Threatened and

endangered species and designated critical habitat (identified in 4) and establishes, using the

best scientific and commercial data available that (a) exposure is improbably or (b) if

exposure is likely, responses are insignificant, discountable, or wholly beneficial

Determination is based on best available scientific and commercial information

Source: ESA/NFP Review, p. 12.

FWS analyzed 50 projects.112 (See Table A-2 and Table A-3.) Of the 43 FS project BAs, 18 met

all of the review criteria, and 25 missed one or more. Six of the 25 (roughly 15% of the total

projects) met none of the evaluation criteria. Of the seven BLM project BAs, one met all of the

criteria, and six missed at least one. Of the six, there were two BAs that met none of the criteria.

Overall, 31 of the 53 project BAs (66%) were deficient in at least one respect; 4% were deficient

in all criteria. The two Action Agencies approved recommended measures to improve their BAs;

those measures involved oversight and further training of personnel by the Action Agencies.113

110

111

ESA/NFP Review, p. 2.

NMFS found that both Action Agencies succeeded in the sixth criterion: summarizing their own actions clearly.

112

There were 9 additional FS projects that included NMFS species and 1 additional BLM project that included NMFS

species. Results for those projects are shown in the NMFS table.

113

ESA/NPA Review, p. 21-23.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Table A-2. Number of Projects Reviewed by FWS

that Did Not Meet Specified Criteria

(Forest Service: 43 projects; BLM: 7 projects)

Criterion from Evaluation Form

(Appendix 3 of Alternative Consultation Agreement)

Forest Service

BLM

(1)

Identified proposed action

(2)

Identified Direct/Indirect/ Interrelated/ Interdependent actions

(3)

Identified Action Area

(4)

Identified all T&E Species and/or Critical Habitat

(5)

Determined likelihood of exposure to effects

(6)

Determination was based on best available data

Source: ESA/NFP Review, p. 19.

Note: Columns cannot be added because different projects had varying numbers of deficiencies among the six

criteria.

Compared to many other federal agencies, both BLM and FS have substantial experience in

implementing the mandates of their agencies. Additionally, they received special training by the

Services to perform the internal consultation. The apparently challenging start by these two

agencies might presage a difficult period of adjustment to the proposed regulations, particularly

for agencies that only rarely consider endangered species issues.

Table A-3.Total Number of Criteria Missed,

by Project for FWS Species

Number of Criteria Missed

Forest Service

BLM

No Criteria Missed

1 to 5 Missed

Missed All 6 Criteria

Total

Source: ESA/NFP Review, p. 21-23.

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

Appendix B. Deadlines: The Desert Rock Energy

Project

One major aspect of the proposed regulations is the imposition of a deadline on informal

consultation and the subsequent effect of that deadline on formal consultation. This section will

examine one project’s request for consultation with FWS and relate it to the proposed regulations.

The Desert Rock Energy Project concerns the construction of a coal-fired power plant on Navajo

land in northwestern New Mexico.114 The Bureau of Indian Affairs (BIA) was the Action Agency.

It is not clear when the phone calls and emails that often begin informal consultation first

occurred. But on April 30, 2007, the BIA sent FWS its BA concerning the effects of the proposed

project on five endangered species, one threatened species, and designated critical habitat for two

of the endangered species.

The BA determined that the project was not likely to adversely affect the five endangered species,

nor the two critical habitats, but was likely to adversely affect the threatened species. On July 2,

2007, FWS asked the BIA to submit additional information that was not included in the first BA.

(Since an adequate BA had not yet been supplied, consultation was still considered informal.) The

BIA submitted a revised BA on October 26, 2007. On January 7, 2008, FWS replied, noting that a

number of the questions contained in its earlier response had not been answered, and that all of

the species might be adversely affected, as might the designated critical habitats. Among the

issues not addressed in the revised BA, according to FWS, were:

•

The BA assumed that the plant would be fired by coal that was different in

chemical composition (in concentrations of mercury, selenium, and other

contaminants) from the nearby coal that was likely to be used and which,

according to the U.S. Geological Survey, had higher concentrations of these

contaminants than the coal assumed in the BIA analysis. FWS could not analyze

species impacts until the BA included an analysis of the coal actually to be used.

•

Heavy metals can accumulate in organisms. If the coal that is actually used has

more heavy metals than BIA models assumed, then a new analysis of this risk

would be necessary.

•

The cumulative effects of three existing plants plus the new plant, plus global

climate change, were not fully analyzed.

The Desert Rock Memorandum from FWS concluded that formal consultation would begin when

it had received the requested information or an explanation why the information was not made

available. No additional documents have been exchanged between the agencies, although

discussion between them continues.

114

It is not clear whether this timeline is typical of Section 7 consultations. It was chosen for the ready availability of

relevant documents and the record of protracted discussions between an Action Agency and FWS—a scenario that may

be affected by the deadlines proposed in the new regulations. For information on consultation on the Desert Rock

Energy Project, see FWS Memorandum to Regional Director, Navajo Regional Office, Bureau of Indian Affairs,

Gallup, New Mexico. “Subject: Information Needed for Formal Consultation on the Desert Rock Energy Project.”

Cons. #420-2004-F-0356. (January 7, 2008) (hereinafter Desert Rock Memorandum).

Congressional Research Service

Changes to the Consultation Regulations of the Endangered Species Act (ESA)

If the proposed regulations had been in effect, the following changes in the process might have

occurred. First, there might have been some effort on the part of BIA to document the date on

which informal consultation began. Second, if one assumes that the April 20, 2007 memo started

informal consultation, then the proposed regulations would have allowed BIA to terminate

consultation 120 days later, on August 28, 2007, without the concurrence of FWS, due to

incomplete information.

However, BIA chose to continue the consultation process for several reasons. First, considerable

opposition to the Desert Rock Energy Project exists, making a citizen suit likely, and BIA would

not have an ITS excusing incidental takes. Second, FWS continues to work with BIA to address

the problems in the second amended BA. If jeopardy or adverse modification of critical habitat

could occur, it may be possible to develop reasonable and prudent alternatives through the

consultation process that would avoid jeopardy, adverse modification of critical habitat, and

citizen suits.

If Action Agencies were to choose to terminate informal consultation, and rely on that termination

to avoid formal consultation, the focus of action would likely shift from the consultation process

to the courtroom. Where quick resolution is a major goal, the courts might not be an Action

Agency’s preferred choice. More importantly, the Action Agency would not have an ITS that

would excuse incidental takes of species, leaving it vulnerable to charges alleging ESA violations.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

(name redacted)

Specialist in Natural Resources Policy

[redacted]@crs.loc.gov, 7-....

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.