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OO'Z4'2S Who's Afraid of the Big Bad BeachMouse? William H. Satterfield Glenn G. Waddell Matthew W. Bowden Environmental groups often refer to it as the crown jewel of environmental laws. while others refer to it less affectionately as the pit bull of environmental laws. Both terms ate ob. vious references to the Endangered Species Act (ESA) and its uncompromising standards. Crit- ics argue the law lacks balance, while moS! sup. porters consider the ESA to be an invaluable tool for preservation. Further fuel has been added to this raging debate by attempts to extend the ESA's reach. An overview of the section 7 con. sultationprocess, 16 u.s.C S; 1536(a) (1988), is provided, and two recent Alabama cases il- lustrative of current efforts to expand the ESA's jurisdiction are discussed below. Section 7 Consultation Although section 7 is, on its face, a restric- tion only on federal agencies, its obligations can find their way into any project requiring federal approval or involvement. Section 7(a)(I) states that federal agencies "shall, in consultation with and with the assistance of the Secretary lof the Department of the Interior or the Department of Commercej, utilize their au. thorities in funherance of the purposes of this chapter by carrying out programs for the con. servation of endangered species. . . ." 16 U.S.C S\ 1536(a)(I). Similarly, section 7(a)(2) reo quires each federal agency. in consultation with the Secretary, to ensure that any action it au- thorizes, funds, or carries out is "not likely to jeopardize the continued existence of any en- dangered species or threatened species or result in the destruction or adverse modification of Ithe species' critical} habitat. Id. S; I 536(a)(2). Section 7(a)(2), which is com. monly known as the "jeopardy provision," is the basis for the regulations which establish and govern the formal consultation process. The Conference Process for Proposed Species. Under the ESA's implementing regu- lations, the Secretary of the Interior has dele. gated his responsibilities to the U.S. Fish & Wildlife Service (FWS) and the Secretary of Commerce has delegated his responsibilities to the National Marine Fisheries Service (NMFS). Consequently, references to FWS in this article should be understood as referring to both FWS and NMFS. According to ESA S; 7(a)(4), each federal agency is to "confer" with FWS on any agency aClion that is likely to jeopardize the continued existence of a" proposed species or proposed critical habitat. 16 U.S.C S; l536(a)(4). FWS regulations define "confer- ence" as "a process which involves informal discussions between a Federal agency and IFWS] regarding the impact of an action on proposed species or proposed criUcal habitat and rec- ommendations to minimize or avoid the adverse effects." 50 CF.R. S; 402.02 (1992). Unlike the formal consultation process for listed spe- cies, there is no limitation on any irreversible or irretrievable commitment of resources dur- ing the conference process. However, a confer- ence is intended "to assist the Federal agency and any applicant in identifying and resolving potential conflicts at ~n early stage in (.he plan- ning process." !d. S; 402.10(a). Formal Consultation. Accordi ng to ESA S; 7 (c), each federal agency contemplating cer. tain actions must request from FW'S information on the presence of listed or proposed species in the action area. If any such species "may be present, [the acting] agency shall conduct a bi- ological assessment for the purpose of identi- fying any llisted] species which is likely to be affected by such action." 16U.S.C S\ 1536(c). Although not required by the ESA, FWS regula. tions take the position that biological assess- ments are automatically required for "Federal actions that are 'major construction activi- ties.' " 50 CF.R. S; 402.12(b)(I). An agency proposing an action that is not a major construc- tion activity has some discretion to determine whether formal consultation with FW'S is nec- essary . FWS regulations state that the federal agen. cy's duty to consult with FWS is triggered if its action "may affect" an endangered or threat- ened species. 50 CF.R. S; 402.14(a). The term "action" is defined as any actlvity "authorized, funded, or carried OUl, in whole or in part by Federal agencies," including promulgating reg- ulations and granting permitS. Id. S; 402.02. Following the initiation of formal consultation, ESA S; 7(d) prohibits federal agencies from mak. ing any irreversible or irretrievable commit- ment of resources with respect to the agency ,vR&E/SUM~lER 1993 Mr. Satterfield is a partner and chair of the environmental and natural resources section oj the Birmingham, Alabamaf;,'m of Balch & Bingham. Mr. Waddell a'id Mr. Bowden are associates witb the firm. 13