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<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 /> <br />17 <br />