Congress passed the Endangered Species Act (the ESA or the Act) in 1973 to protect wildlife, plants, and habitat types at risk of becoming extinct. The Act has helped save hundreds of species, including iconic ones such as American alligators, humpback whales, North American brown bears, manatees and bald eagles. However, one of the mechanisms the ESA uses to protect threatened and endangered species is to limit development, which is controversial.
The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)—together known as “the Services”—are responsible for administering the ESA. In July 2018, the Services proposed changes to the Act that, if adopted, could impact your business.
The stated goals of the proposed changes are to promote clarity, efficiency, consistency and best practices. Of course, the proposed changes have both supporters and critics and public comment period for the revisions ends on September 24, 2018. If enacted, it is unclear how quickly the changes would go into effect, but it would likely be months, if not longer.
There are proposed changes to Part 4 and 4D, which are not covered here, that could change how agencies evaluate the threat levels for Endangered and Threatened Species. The proposed changes to Section 7 relate more to the consultation process and are discussed below. These changes potentially benefit businesses that must consult the EPA by imposing more deadlines on the Services and increasing cost- saving options for those seeking approval for their projects.
1. Shortening the Consultation Process
Section 7 of the Act requires federal agencies to consult with the Services to make sure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of an endangered or threatened species. Businesses that have a project involving a federal agency must work with that agency to get the necessary approval.
The proposed changes could reduce the cost of consultations by shortening the consultation process. Right now, there is no deadline for the Services to complete an informal consultation, and formal consultation should be completed within 90 days. The Services are considering whether to add a 60-day deadline, subject to extension by mutual consent, for the conclusion of informal consultations.
The proposed revisions also include a new provision titled “Expedited Consultations” which would offer opportunities to streamline consultation, particularly for actions that have minimal adverse effects or predictable effects based on previous consultation experience.
2. Clarifying Requirements
The proposed revisions further describe the information- commonly called the “initiation package”- that is required to initiate a formal consultation. This will help people know exactly what information to submit when seeking project approval.
The Services are also considering whether or not they should create a list of circumstances when no consultation will be required. Obviously, if they choose to do so, this could significantly expedite projects that fall into this category.
3. Adding Consultation Options
The Services have proposed adding 2 types of consultations under the category of “programmatic consultations.” The first is intended for multiple similar, frequently occurring, or routine actions expected to be implemented in particular geographic areas. An example of such a programmatic consultation would be a U.S. Army Corps of Engineers general permitting that covers routine construction activities for in-and-over-water structures at the regional level.
The second type of programmatic consultation addresses a proposal that provides a framework for future actions where the Federal agency initially may not be able to provide enough details for approval. In these cases, the Service conducts a generalized review of effects and provides the appropriate determination in a letter of concurrence or biological opinion for the programmatic consultation. Then, when the site-specific information becomes known, the consultation is completed.
Codifying alternative consultation methods and the ability to adopt portions of its own or other federal agencies’ documents should also decrease overall consultation time and costs.
Until the comments close and the new regulations have been published (and perhaps even litigated), the full impact of these proposed regulations will remain unknown. There are multiple potential savings of time and money for businesses and industries that need approval under the ESA for their projects.