<br />002~30
<br />
<br />Reinitiation of
<br />ESA ~ 7
<br />Consultations
<br />over Existing
<br />Projects
<br />
<br />Deborah L. Freeman
<br />
<br />Section 7 (a) (2) of the Endangered Species
<br />Act (ESA) , 16 u.s.c. ~ 1536(a)(2) (1988), im.
<br />poses on each federal agency an obligation to
<br />ensurc that its actions are not likely to jeopard-
<br />ize the continued existence of federally listed
<br />threatened or endangered species or result in
<br />the destruction or adverse modification of their
<br />designated critical habitat. As discussed in the
<br />section 7 overview article by Messrs. Satterfield,
<br />Waddell and Bowden, this substantive obliga-
<br />tion is implemented through a requirement that
<br />the federal "action agency" enter into formal
<br />section 7 consultation with the u.S. Fish and
<br />Wildlife Service (FWS) to evaluate the nature
<br />and extent of impacts to any species or critical
<br />habitat that may be affected by the agency ac.
<br />tion. See 50 C.F.R. ~ 402.14(a) (1991). Formal
<br />consultation is concluded upon issuance of a
<br />biological opinion by FWS which evaluates
<br />whether the proposed activity presents a jeop-
<br />ardy situation and sets forth recommendations
<br />for alteration of the activiry to avoid prohibited
<br />effects.16U.S.C.~ I 536(b)(3)(A) (1988); 50
<br />C.F.R. ~ 40214(h) (1991). In fulfilling its
<br />nonjeopardy mandate under section 7, the fed-
<br />eral action agency must fully consider the con-
<br />clusions and recommendations of the biological
<br />opinion prior to taking action which may affect
<br />listed species or critical habitat. See Sierra Club
<br />v. Froeblke, 534 F.2d 1289, 1303-04 (8th Cir.
<br />1976) and National Wildlife Fed'n v. Cole.
<br />man, 529 F.2d 359 (5th Cir. 1976) (both hold.
<br />ing that the ultimate jeopardy determination
<br />resides with the agency proposing to act).
<br />Consultation can at times be a lengthy, ex-
<br />pensive and frustrating process. Of concern to
<br />those who have completed consultation on re-
<br />source development projects or who are in-
<br />volved with "historic" projects that predated
<br />
<br />the ESA consultation requirements, are the cir-
<br />cumstances under which section 7 consu Itarian
<br />may be reinitiated with respect to a given ac-
<br />tivity, and the scope of such consultation once
<br />it has been reopened.
<br />
<br />Federal Agency Action "Trigger"
<br />
<br />The federal interagency consultation re-
<br />quirement under section 7 arises only in the
<br />presence of "federal agency action." Federal
<br />agency acrion is necessary to trigger section 7
<br />jurisdiction in the first instance over a proposed
<br />activity and to invoke future reconsultation pro-
<br />cedures. The nature of the agency action should
<br />also control the scope of inquiry and impact
<br />assessment addressed during consultation or re-
<br />consultation. The term "action" is defined in
<br />the ESA Regulations on Interagency Coopera-
<br />tion as including "all activities or programs of
<br />any kind authorized, funded or carried out, in
<br />whole or in part, by Federal agencies in the
<br />United States or upon the high seas." 50 C.F.R.
<br />~ 402.02 (1991). See also 16 u.s.c.
<br />~ 1536(7)(a)(2) (1988).
<br />Two factors are essential to understanding
<br />the federal trigger. The first is that section 7
<br />applies not only to activities and programs un-
<br />dertaken directly by the federal government, but
<br />also to those "nonfederal" activities which re-
<br />quire certain types of authorization or assis-
<br />tance from the federal government. Examples
<br />of activities undenaken directly by federal
<br />agencies which have been subject to section 7
<br />consultation requirements include federally
<br />sponsored flood control projects, see, e.g., SI-
<br />,'rra Club v. Froeblke, 534 F.2d 1289, 1303-
<br />04; promulgation of management guidelines by
<br />federal agencies for conservation of endangered
<br />species, see, e.g., Lane County Audubon Soc'y
<br />t'. Jamison, 958 F.2d 290 (9th Cir. 1992); the
<br />registration of pesticides and rodenticides by
<br />EPA under F1FRA, see, e.g., De/enders 0/ Wild-
<br />life v. EPA, 688 F. Supp. 1334 (D. Minn. 1988),
<br />a/I'd In part, rev'd In part, 882 F.2d 1294 (8th
<br />Cir. 1989); and U.S. Navy military training op-
<br />erations affecting listed species, see, e.g., Rom.
<br />ero-Barcelo v. Brown, 643 F.2d 835 (1st Cir.
<br />1981), rev'd on otber grounds sub nom.
<br />Weinberger v. Romero.Barcelo, 102 S. Ct.
<br />1798,456 U.S. 305, 72 L.Ed.2d 91 (1982).
<br />Examples of nonfederal activities that in-
<br />volve federal authorization or assistance and that
<br />have been subject to section 7 include construc-
<br />tion of dams by nonfederal entities requiring
<br />Clean Water Act (CWA) ~ 404 dredge and fill
<br />permits, see, e.g., Riverside Irrigation Dist. v.
<br />Andrews, 758F.2d 508 (IOthCir. 1985); min.
<br />eral exploration activities and ski area expan-
<br />sions undertaken by private panies on National
<br />
<br />NR&E/SUMMER 1993
<br />
<br />Ms. Freeman (s a
<br />shareholder of the law
<br />firm Saunders,
<br />Snyder, Ross &
<br />Dickson, P. G.,
<br />in Denver.
<br />
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