Well, the US Fish and Wildlife Service and National Marine Fisheries Service have finalized revisions to the regulations for consulting under Section 7 of the Endangered Species Act (ESA) (Fed. Reg. Vol. 89, N. 67. April 5, 2024). The proposed changes were published in June 2023, and I wrote a blog post about them at that time (2023 Revisions to the Consultation Regulations). I suggest you read that blog post both for context and to get some background on take and reasonable and prudent measures.

In the the April 5^th final rule the Service notes the following:

“Following consideration of all public comments received in response to our proposed rule, we are proceeding to finalize revisions to our implementing regulations at 50 CFR part 402 as proposed, with no changes.

As described in my blog post, the most substantial change is the Service’s new expansive interpretation of the scope and extent of reasonable and prudent measures (RPMs). These are required actions for an action agency under the incidental take statement (ITS). This new interpretation is in stark contrast to the narrower view of RPMs and mitigation for incidental take held by the Service since at least 1998. The old interpretation is shown below:

“Section 7 requires minimization of the level of take. It is not appropriate to require mitigation for the impacts of incidental take [emphasis in 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.” (Page 4-50 of the 1998 Handbook)

How will the new interpretation work? Briefly, it appears to me that the Services will now be viewing RPMs as being of two types, one that modifies the proposed action to “avoid and reduce” incidental take to individuals from the project, and a second that may describe broader “offsetting measures” to minimize any remaining impacts of incidental take to the species. These last offsetting measures may occur within or outside the action area but seemingly are not aimed at modifying the project consulted on. By doing it this way, the second type of RPM seems less likely to run afoul of the “minor change rule” from 50 CFR 402.14(i)(2) regarding limits on the Services’ changes to the proposed project – because these RPMs won’t be modifying the proposed action under consultation. They’ll be adding new actions for the agency to take.

The overall goal seems to be to “effectuate the conservation goals of the ESA by addressing impacts of incidental take that may not have been sufficiently minimized through measures confined to avoiding or reducing incidental take levels.” (Fed. Reg. April 5, 2024)

To make sense of what the Services appear to be saying, I’ve put together a brief decision tree which I believe crudely describes the process outlined in the preambles to the proposed and final rules. I offer it below with a couple of caveats – first, that this decision tree is my personal interpretation and may not be consistent with the eventual guidance or approach of the Services, and second, that it obviously assumes that the project has successfully satisfied Congress’ mandate in 7(a)(2) regarding Jeopardy and Destruction or Adverse Modification and the incidental take of fish or wildlife has been anticipated and the amount or extent identified. So here goes….

Issues

There are a number of potential difficulties that the Services will have to deal with quickly before close to a hundred different field offices start implementing this new regulatory provision in an ad hoc fashion. Here are a few that come to mind.

1. Time constraints.

The ESA anticipates that the Services will spend up to 90 days in the consultation phase (with the action agency and applicant) of 7(a)(2). Then by regulation, the Services have 45 days to perform the 7(a)(2) analysis, assemble the biological opinion, identify any incidental take, develop RPMs, develop monitoring and reporting requirements, and finalize the two documents. Adding additional coordination with the action agency and applicant (if applicable) to develop the RPMs (now probably more extensive and complex) seems like an incredibly large task to add to the Service’s burden of meeting the regulatory time frames.

2. Standards

The Service states that the RPMs will be “reasonable and prudent” only if they are economically and technologically feasible. What process and standard will be used to determine the economic and technological feasibility of the Services required RPMs? Will it require some sort of economic analysis/impact for each RPM? Would this be similar to that done for the Services’ section 10 incidental take permit or section 4 critical habitat findings? Having transparent and consistent standards established for all the action agencies and Services to use would greatly assist the process.

3. Disputes

If an action agency or an applicant disagrees with the Services’ determination regarding whether an RPM is economically or technologically feasible, whether it is more than a minor change to the project, or whether it can be considered a necessary, reasonable or prudent measure, what is the process for handling these types of disagreements? Remember, at this point in the process the project has already been determined by the Service to be consistent with Congress’ mandate in 7(a)(2), but the action can’t move forward without complying with the RPMs in the ITS. Because if the action agency and its applicant (if applicable) move forward while the RPMs are still in flux or do not comply with the disputed RPMs, any take of fish or wildlife will potentially expose them to being in violation of the ESA’s prohibitions on take. That is because the “safe harbor” of the ITS only operates if the action agency or applicant are fully complying with the RPMs. Therefore, a process for quick resolution that can be completed within the 45 days allowed by the regulations for issuance of the final consultation documents is needed and that process needs to be developed very quickly after the final rule takes effect (May 6, 2024).

4. Monitoring

Since monitoring and reporting requirements will continue to be used to verify implementation and efficacy of RPMs, and this could now include offsets outside the action area, this new approach will add a degree of complexity to those requirements. If applicants are involved this could mean that separate agreements would have to be made between the action agency, applicant and Services consistent with agencies’ jurisdiction, authority and responsibility for the now more extensive actions to monitor. Again, this is another burden for the Service and the action agency to work through in the short 45-day window.

5. Other Environmental Review

Perhaps one of the oddest issues that could arise is the relationship between requirements in the ITS and responsibility for additional environmental processes and reviews by the action agency. By this I mean that RPMs could now require the action agency to fund, authorize or carry out actions inside or outside the action area that have not been anticipated, planned or reviewed. These new actions would themselves be subject to all the standard environmental reviews such as the National Environmental Procedures Act, National Historic Preservation Act, etc. including, somewhat paradoxically, consultation again under the ESA if that action may affect a listed species. This could open a plethora of novel arguments and debate even including whether the Service’s bear some sort of share in this review burden flowing from their agencies final action of issuing the biological opinion and ITS with new required actions.

Conclusion

Regardless of intent, the Service’s broader interpretation of the scope of RPMs is a substantial change to over a quarter century of policy and practice. All the more reason for the Services to develop clear, consistent guidance, and do so quickly to transition between the past and the future smoothly for this area of section 7 consultation.