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Field Observations:

The Section 7 Training Blog

Legal

A Look at Causation

During the class the issue of “caused by” came up as it is used in the regulatory definition of “effects of the action” (50 CFR 402.02) and the associated terms of “but for” and “reasonably certain to occur”. (These terms also relate to construction of an incidental take statement.) This is always a difficult point in framing biological assessments and biological opinions.

But For and Reasonably Certain to Occur

A couple of weeks ago I mentioned the value of reading preambles in federal register notices to give context to words and processes. While preparing some training materials for my online courses, an example came to mind - the phrases “but for” and “reasonably certain to occur” (sometimes abbreviated to ‘rcto’ just to confuse new practitioners).

Benefit of the Doubt

The other day I was reminded of the phrase “benefit of the doubt”. This phrase gets used occasionally in conversations around Section 7 consultation. It is mentioned in the handbook, and it's mentioned in the preamble to the 1986 regulation revisions. That particular use of the phrase comes from page 12 of a 1979 Congressional Conference Report where changes to the wording in the Act were being debated. Initially, the conversations that I heard around this phrase didn't make a lot of sense to me

Preambles to Regulations

An often-overlooked source of insight into the rules and process of consultation are the preambles to regulations. Any time a regulation is put in place, or changed, it has to be published in the Federal Register (the “Government’s Newspaper”) https://www.federalregister.gov/. I have posted what I think are the 3 most relevant Federal Register notices for consultation practitioners on our Resources page.