The Fish and Wildlife Service and National Marine Fisheries Service (Services) have proposed new revisions to the regulations for consultation under section 7 of the Endangered Species Act (Act). The changes are described and discussed in the June 22nd, 2023, Federal Register Notice. The same day in separate notices, the Services proposed changes to the regulations for listing of species under the Act and to reinstate the 1978 blanket 4(d) rule for threatened species.
I encourage all practitioners to read the notices. The one for section 7 consultation is relatively short at 12 pages and only the first 8 pages are relevant to the proposed changes. It can be found here: (2023 Proposed Revision Federal Register June 22).
Effects of the Action
The first change proposed is the addition of a phrase to the definition of effects of the action. That phrase makes it clear that activities that are caused by the federal action but not necessarily a part of the proposed federal action are included in the effects of the action analysis with the other effects of the proposed action. This is consistent with the analytic approach that has been used for decades. The added phrase, as the Services note, is an attempt at clarifying the concept.
Environmental Baseline
The second change is in the definition of environmental baseline. Here the Services proposed several edits to clarify the relationship of the existing activities and facilities in the action area and the discretion of the action agency relative to those items. The concepts involved are difficult to explain in a simple definition, but the proposed changes, accompanying examples and discussion should improve the practitioner’s understanding.
Reinitiation of Consultation
The third change is for the reinitiation of consultation language at 50 CFR 402.16. The Service proposes removing the words relating to the Services’ role in reinitiation. The language proposed for removal has consistently been misinterpreted to suggest that the Services have the authority to unilaterally reinitiate an action agency’s completed consultation. As the Services explain in the proposal, the action agency is the only agency that can reinitiate consultation on their action. The Services can always recommend reinitiation if they believe it is appropriate and the proposal does not alter that ability. The proposed change can be considered a welcome deletion and hopefully will clarify what has been a misunderstood issue for many years.
Section 402.17
The 4th proposal is to remove the entire section at 402.17. This section was added in 2019 and represented an explanation of how to interpret several other areas of the regulations. While certain parts of the text are helpful as explanatory text, the Service apparently feels that overall it contributed to greater confusion. Some elements of that section have been considered and incorporated in the proposed revision of the definition of effects of the action and others will be considered as part of future guidance documents.
In my view, these four proposed changes are relatively minor but are likely to improve areas where there has been confusion. Overall, I'd probably consider them to be neutral to beneficial and they do not represent any change to the basic structure, process, or requirements of Section 7 consultation that have been practiced since at least 1986.
Reasonable and Prudent Measures
The 5th proposed change is a change that in my view does represent a substantial change in practice and the Service acknowledges as much. The proposal is to edit the definition (402.02) of reasonable and prudent measures (RPMs), to edit 402. 14(i)(1)(i) and (ii), and to add section 14(i)(3) – all to reflect a new interpretation by the Services. Those changes broaden the scope of those measures.
To review, reasonable and prudent measures are measures described in the Act and developed by the Services as part of an incidental take statement. (An incidental take statement is only developed if the action has been determined to have satisfied 7(a)(2)’s requirement regarding jeopardy and destruction or modification.) RPMs are intended to minimize the impact of incidental take anticipated to occur from the action under consultation. By complying with those measures (and terms and conditions implementing them) the anticipated incidental take is then not prohibited take described in section 9 or prohibited by extension through an applicable 4(d) rule. Said another way, if the action agency does not comply with the RPMs, any incidental take that occurs from the action remains prohibited thereby placing some legal risk on the agency.
The interpretation since the 1986 regulations were promulgated has been that RPMs are aimed at and limited to modifying only the proposed action subject to the consultation. They are specifically intended to minimize the amount or extent of the incidental take occurring because of the project and do not include mitigation measures for that take. The 1998 handbook sums it up this way.
“Section 7 requires minimization of the level of take. It is not appropriate to require mitigation for the impacts of incidental take [Emphasis in the original]. Reasonable and prudent measures can include only actions that occur within the action area, involve only minor changes to the project, and reduce the level of take associated with project activities. These measures should minimize the impacts of incidental take to the extent reasonable and prudent.” (Handbook p. 4-50)
An Aside Regarding the History of Incidental Take Statements, Permits, Mitigation and RPMs
Seeing the emphasis in the handbook regarding mitigation for incidental take, I think a little history is useful. It is interesting to note that there were no provisions in the Act for removing the prohibitions on incidental take (or requiring RPMs) before 1982. This situation arguably put federal agencies (and everybody else) at legal risk if their actions caused incidental take. That is why incidental take for federal and non-federal entities appears to have been a key issue for Congress when they amended the ESA in 1982 and probably why the Service went back and reviewed that legislative history before proposing this change (See below).
In those amendments Congress ended up setting up two different processes to handle the issue of removing the prohibition on incidental take. For non-federal actions, (actions without a federal nexus) Congress gave authority to the Service under Section 10 to issue a permit for that take. Congress required that an application for a Section 10 incidental take permit by non-federal entities include a proposed plan that “…will, to the maximum extent practicable, minimize and mitigate the impacts of such taking…” (Act section 10(2)(B)(ii).
For federal agencies (or actions with a federal nexus), after the federal agency’s proposed action has satisfied 7(a)(2)’s requirements regarding jeopardy and destruction or adverse modification of critical habitat, Congress established a requirement for including an incidental take statement with RPMs “…that the Secretary considers necessary or appropriate to minimize such impact…” (ESA section 7(b)(4)(C)(ii).
I’m often asked by practitioners why Congress’s language in the Act regarding incidental take requires mitigation by non-federal entities but doesn’t require it for federal agencies. I don’t know the answer, but the best response I have to offer is that federal agencies already have the additional requirement under 7(a)(1) to always use their authorities for the conservation (recovery) of listed species. Non-federal entities do not have such a standing requirement. This could be the reason for the apparent language difference. (Perhaps this new proposal works to help implement required 7(a)(1) actions for action agencies?)
Back to the proposal…
The Services are now after “…having conducted a careful review of the Act’s text, the purposes and policies of the ESA, and the 1982 ESA legislative history…”, proposing to broaden an RPM’s scope to incorporate the concept of “offsets” for minimizing impacts of the incidental take to the species (rather than just minimizing the amount or individuals incidentally taken by the project).
“We propose revising § 402.14(i)(1)(i) and (ii) to reflect our interpretation that RPMs are not limited solely to reducing incidental take and may occur outside of the action area. In addition, a new paragraph at (i)(3) is proposed to clarify that offsets within or outside the action area can be required to minimize the impact of incidental taking on the species.” (Fed Reg p. 40760)
The Service describes the intent as follows.
“Minimizing impacts of incidental take on the species through the use of offsetting measures can result in improved conservation outcomes for species incidentally taken due to proposed actions and may reduce the accumulation of adverse impacts, sometimes referred to as ‘‘death by a thousand cuts.’’ In addition, by allowing the Services to specify offsets outside the action area as RPMs, conservation efforts can be focused where they will be most beneficial to the species.” (Fed Reg p. 40758)
In some ways this feels like an interpretation and overall intent of using required offsets included as RPMs to aim at a goal (not a requirement) of no-net-loss when it comes to the impacts of incidental take. As the Service notes this is a new interpretation that is different than expressed in the 1998 consultation handbook, but they have determined that it is allowed under the statutory language and would be consistent with the Service’s mitigation policy.
If I read it correctly the Services are proposing somewhat of a three-step process for developing those RPMs. The first step would be looking for ways to modify the action (mindful of 402.14(i)(2) - the “minor change rule”) to minimize the anticipated take. (This approach has been the typical practice since 1986.)
If there are still residual incidental take impacts, the second step would consider other measures (inside the action area of the proposed action subject to the consultation) for additional “offsetting” actions that the action agency could authorize, fund, or carry out to further reduce the residual amount of incidental take. If appropriate, these would become required reasonable and prudent measures.
If there are still residual incidental take impacts after step two, the third step would consider measures (outside the action area of the proposed action subject to the consultation) for additional “offsetting” actions that the agency could authorize, fund, or carry out that would minimize additional (and hopefully all?) impacts of the remaining incidental take. If appropriate, these would become required reasonable and prudent measures.
The Services state that any RPM would still be subject to the “minor change rule”. However, the minor change rule has traditionally been measured against the proposed action that has already satisfied 7(a)(2). Some of the measures potentially identified during the last two steps described above might not so much as modify the proposed action (and may even occur outside the action area of that action) as they would add new additional actions to be authorized, funded or carried out. This may result in a somewhat awkward application of the minor change rule to those additional measures. The Services also notes that the RPMs would need to be “commensurate with the scale of the impact” so it could be that this will be the operating standard, rather than the minor change rule, for those additional actions that were not part of the proposed action.
Summary
To be sure, this current proposal is an interesting one. If finalized, guidance will need to be developed quickly to ensure consistent and timely development of RPMs during the 45 days after the 7(a)(2) analysis is complete and before the final opinion and incidental take statement are delivered. A new handbook is in the works, and it would provide a useful spot for elaboration on the new interpretation. By the way, the current handbook has some good advice on RPMs, and it would be even more relevant for the current proposal.
“Reasonable and prudent measures and terms and conditions should be developed in coordination with the action agency and applicant, if any, to ensure that the measures are reasonable, that they cause only minor changes to the project, and that they are within the legal authority and jurisdiction of the agency or applicant to carry out. (1998 Handbook p. 4-50)
I encourage readers to examine the proposed changes in the notices and to remember that in all consultations, close cooperation and coordination between the Services, action agency and applicants are key to an efficient and timely consultation.