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

by Nossaman LLP

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nossaman LLP | Attorney Advertising

Written by:

Nossaman LLP

Nossaman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.