Corps Of Engineers Issues Guidance Regarding Section 7(a)(2) Consultation

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On June 11, 2013, the U.S. Army Corps of Engineers issued a guidance memo (pdf) regarding its obligations under section 7 of the Endangered Species Act.  The memo focuses on the Corps’ consultation obligations under section 7(a)(2).  Notably, the Corps makes no reference to the Corps’ obligation under section 7(a)(1) to “utilize [its] authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act.”

Section 7(a)(2) requires a federal action agency such as the Corps to, among other things, consult with the appropriate wildlife agency (that is, either the Fish and Wildlife Service or National Marine Fisheries Service) to ensure that any action "authorized, funded, or carried out" by the 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 [designated critical habitat]."

In the context of its obligations under section 7(a)(2), the guidance interprets the scope of the “action” as well as the “environmental baseline,” which includes past and present impacts of activities other than the action.  The guidance emphasizes the need to define the action “in a precise manner, to ensure that any measures intended to minimize adverse impacts pursuant to the ESA accurately account for only those activities over which the Corps has discretion.”  With respect to existing structures that the Corps has a responsibility to maintain, the guidance states that “the how and when of the maintenance activities” may be part of the action and therefore the subject of consultation, but “the results of the maintenance” are part of the environmental baseline.

The Consultation regulations (pdf) specify that section 7 applies to “actions in which there is discretionary Federal involvement or control.”  50 C.F.R. 402.03.  In addition, the Consultation Handbook (pdf) uses an example of a dam to demonstrate that ongoing effects of an existing facility are part of the environmental baseline but, for example, the addition of a turbine to that dam is an action subject to section 7(a)(2).  Consultation Handbook, p. 4-28.  The discussion of maintenance of existing facilities in the guidance constitutes further interpretation of the regulatory regime rather than a restatement of existing regulations or guidance.

The guidance also discusses the formulation of reasonable and prudent alternatives (RPAs).  RPAs only need be developed when a wildlife agency has opined that the action is likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of designated critical habitat.  The guidance emphasizes that an RPA is a suggestion or recommendation and not legally binding on the Corps.  It goes on to state that it is essential that the Corps work closely with the pertinent wildlife agency to ensure the RPA “can actually be implemented by the Corps within our existing legal, economic, and practical limitations.”

The Consultation Handbook indicates that the wildlife agencies “are committed to working closely with the action agencies and applicants in developing reasonable and prudent alternatives.”  Consultation Handbook, p. 4-44.  In the guidance, the Corps emphasizes that it has unique expertise on the requisite issues of whether the RPA is consistent with the purpose of the action, can be implemented consistent with the scope of the Corps’ jurisdiction, and is economically and technically feasible.  The Corps further states that the law recognizes deference is owed to the Corp with respect to these matters.

While it is within the purview of the Corps to issue guidance regarding the consultation process, it would be preferable for the Administration to propose adjustments to the existing regulatory scheme that apply across the board to further the consistent application of the Act, improve upon the efficiency with which it is presently administered, better integrate science into decision-making in the context of consultation, and allow for notice and comment to engage interested parties and promote transparency in decision-making.