During the fall of 2019, several important rules were finalized by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration (the Services) that sought to revise how long-standing aspects of the Endangered Species Act of 1973, as amended, have been implemented for decades. The three rules listed below are now effective:
Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Listing Species and Designating Critical Habitat (FWS-HQ-ES-2018-0006, Final Rule effective September 26, 2019)
Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants (FWS-HQ-ES-2018-0007, Final Rule effective September 26, 2019)
Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation (FWS-HQ-ES-2018-0009, Final Rule effective October 28, 2019).
While these rules will primarily change how agency staff administer and implement the ESA for recovery planning and conservation efforts, the final rule for Regulations for Interagency Cooperation will require an understanding and comprehension by applicants and those in the environmental community that prepare permit applications and environmental documents to support Section 7 Interagency Consultations. In particular, with respect to how environmental documents such as biological assessments are prepared, we evaluated the final rule to assess how the new terms and definitions have been defined and we summarize here how the new approaches to analyzing the effects of an action will be evaluated by agency staff for both informal and formal interagency consultations. While the final rule was delayed by one month to allow additional time to educate and train agency staff on the interagency implementing regulations, we are anticipating that additional agency guidance may be forthcoming as to how these changes will be integrated into agency templates or internal guidance for biological assessments. In lieu of these guidance documents, we have summarized here how some of these changes from the final rule from Regulations for Interagency Cooperation will be implemented into future biological assessments prepared by or on behalf of applicants.
The final, 43-page rule, provided numerous responses to commenters from stakeholders and the regulated community as a result of the proposed rule’s publication in July of 2018. The final rule, amongst other things, proposed amendments to definitions such as ‘destruction or adverse modification’ and ‘effects of the action’, environmental baseline, programmatic consultation, certainty of measures proposed by action agencies and applicants to avoid, minimize or offset adverse effects, and for the first time, a new timeline for completing informal consultation (now 60 days). Perhaps the most significant change that, on its face, appears as a mere substitution or replacement of terms is the introduction of the definition of “consequences”, a term meant to replace direct and indirect effects and interdependent and interrelated actions and by applying two-part test of “but for” and “reasonably certain to occur” to evaluate those consequences. The Service summarizes how consequences will be approached and defined into the Code of Federal Regulations:
“Consequences (effects of the action) was proposed to be defined as all effects (i.e. direct and indirect effects) on the listed species or critical habitat that are caused by the proposed action, including the effects of other proposed activities (i.e. interdependent and interrelated actions) that are caused by the proposed action. An effect or activity is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include effects occurring outside of the immediate area involved in the action.” Topically, the changes come across as benign substitutions and the Service has stated that these changes are being proposed so that “…Consultations…can focus on identifying the effects and not on categorizing them.” and the two-part test is meant to provide a transparent means to how the Services will identify the effects of a proposed action. The Services go on to define the “but for” causation definition to mean that the consequences in question would not occur if the proposed action is not carried out and combined with the reasonably certain to occur standard, the Services have clarified that for a consequence to be reasonably certain to occur, the determinations must be based on “clear and substantial information.” The Services define clear and substantial information as a “…firm basis to support a conclusion that that a consequence of an action is reasonably certain to occur must be based on solid information and should not be based on speculation or conjecture.” The Services also emphasize that as part of this new definition, the clear and substantial information does not require the information or analysis to support that a consequence will occur but that it “has a high degree of certitude” to occur. Lastly, the Services expand on the application of a two-part test for interdependent or interrelated actions in those cases where an activity is caused by (but not part of) the proposed action; the two-part test must be examined twice (once for the activity and then again for the consequences of that activity).
One of the changes in the final rule over the proposed rule came from a commenter requesting that the Services provide a set of factors or criteria in determining what effects are reasonably certain to occur from a proposed activity. In the final rule, the Services have provided the criteria to provide clarity on the factors related to past experiences with identifying activities that are “…reasonably certain to occur as a result of a proposed action and the type of plans that would be indicative of an activity that is reasonably certain to occur.” The criteria have been added to subsection 402.17 (Other provisions) in the Code of Federal Regulations and are included here for guidance:
(a) Activities that are reasonably certain to occur. A conclusion of reasonably certain to occur must bebased on clear and substantial information, using the best scientific and commercial data available. Factors to consider when evaluating whether activities caused by the proposed action (but not part of the proposed action) or activities reviewed under cumulative effects are reasonably certain to occur include, but are not limited to:
(1) Past experiences with activities that have resulted from actions that are similar in scope, nature, and magnitude to the proposed action;
(2) Existing plans for the activity; and
(3) Any remaining economic, administrative, and legal requirements necessary for the activity to go forward.
(b) Consequences caused by the proposed action. To be considered an effect of a proposed action, a consequence must be caused by the proposed action (i.e., the consequence would not occur but for the proposed action and is reasonably certain to occur). A conclusion of reasonably certain to occur must be based on clear and substantial information, using the best scientific and commercial data available. Considerations for determining that a consequence to the species or critical habitat is not caused by the proposed action include, but are not limited to:
(1) The consequence is so remote in time from the action under consultation that it is not reasonably certain to occur; or
(2) The consequence is so geographically remote from the immediate area involved in the action that it is not reasonably certain to occur; or
(3) The consequence is only reached through a lengthy causal chain that involves so many steps as to make the consequence not reasonably certain to occur.
(c) Required consideration. The provisions in paragraphs (a) and (b) of this section must be considered by the action agency and the Services. Until regional Services offices have developed internal guidance as to how biological assessment templates should be developed, Insignia staff are ready to implement the new procedures outlined in the Final Rule in the development of biological assessment to support our clients in their consultation requirements. These new developments will undoubtedly require a change in approach and documentation to meet these new standards and our firm is ready to meet these new challenges and requirements.