July 8, 2013

Army Corps issues new ESA guidance

By Damien M. Schiff Senior Attorney

One of the most important provisions of the Endangered Species Act is Section 7, which requires, inter alia, that federal agencies ensure that their discretionary actions do not jeopardize the continued existence of any listed species, or adversely modify its critical habitat.  The provision also requires federal agencies to consult with the National Marine Fisheries Service or the United States Fish and Wildlife Service (depending on the species) to avoid jeopardy and adverse habitat modification.  Often, this consultation process results in one of these wildlife agencies producing a “biological opinion,” which contains a “reasonable and prudent alternative” to the proposed action that avoids harm to the species.  Environmental groups have scored many successes using Section 7, from the notorious snail darter case of TVA v. Hill to NRDC v. Kempthorne, concerning the delta smelt and which led to significant water cutbacks to California’s San Joaquin Valley.  Hence, it is noteworthy that the United States Army Corps of Engineers last month issued a new memorandum to guide Corps districts in applying Section 7.  The memo makes three important points concerning the Corps’ Section 7 consultation obligations.

First, the memo urges district engineers carefully to define the “agency action.”  The guidance clarifies that the action should not include components of the project that are non-discretionary.  For example, Congress directs that the Corps maintain a dam constructed prior to the ESA’s enactment.  The Corps acknowledges that the existence of a such a dam may harm fish species because it blocks their travels.  Nevertheless, the memo concludes that the negative impacts of the dam on the environment should be included within the biological opinion’s “environmental baseline.”  That analytical move is significant because Section 7 and its implementing regulations merely adjure federal agencies “to do no harm,” i.e., to ensure that the proposed action does not worsen the environmental baseline.  Thus, to the extent that bad continuing impacts are part of, not in addition to, the environmental baseline, an agency has no obligation to mitigate them.

Second, the memo underscores that the environmental impact analysis that Section 7 requires is not as stringent as that required by the National Environmental Policy Act.  Whereas the former requires consideration of effects “reasonably certain to occur,” the latter requires consideration of effects that are “reasonably foreseeable.”

Third, the memo emphasizes that ultimately it is the Corps’ obligation to decide for itself how to avoid jeopardizing listed species or adversely modifying their critical habitat.  Although the federal wildlife agencies have important input to provide the Corps in making that call, those agencies must not arrogate to themselves decision-making authority.  Further, the memo reminds the district engineers that the ESA and its regulations do not require that the Corps adopt a biological opinion’s reasonable and prudent alternative.  Although not doing so may increase the Corps’ risks for legal liability, a reasonable and prudent alternative is merely the recommendation of the wildlife agencies, not an executive or congressional mandate.

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