WSP03664

• File Number: 8065
• Description: Section D General Statewide Issues - Endangered Species Act - Fisheries
• State: CO
• Basin: Statewide
• Date: 8/1/1993
• Author: American Bar Associa
• Title: Natural Resources and Environment - Number 8-Volume 1 - Summer 1993 - Endangered Species Protection
• Water Supply Pro - Doc Type: Publication

002433

Consul/alion should
be consistent witb
and tailored to the
nature and scope of
the 'federal action"
which liggered
reinitiation.

20

of ESA S; 9, which prohibits the "taking" of en-
dangered fish or wildlife species by private per-
sons as well as governmental entities. 16 u.s.c.
S; 1538 (1988).
Those yet-to-be-permiued projects that have
received biological opinions, as defined in cat-
egory 4 above, are in a slightly different pos.
ture. A federal handle will likely linger sufficient
to invoke reinitiation until such time as all req-
uisite federal approvals potentially affecting
species or their habitat have been obtained.
Once that is accomplished, these projects should
be treated as category 2 and category 3 projects
for purposes of the jurisdictional analysis.

The Scope of Consultation,
Once Reinitiated

What is the proper scope of consultation,
once reinitiated with respect to an existing or
previously authorized project? Where federal
jurisdiction is triggered with respect (0 a given
activity, is the entire activity now open (0 reev-
aluation? As an example, assume that an existing
reservoir, constructed ten years ago pursuant to
a nonjeopardy biological opinion and CWA
S; 404 permit from the Corps of Engineers, now
needs a subsequent section 404 authorization
for enlargement of the dam structure to increase
Stordge capacity from 100,000 acre-feet to
150,000 acre-feet of water. In the years since
construction of the facility, new and improved
biological data have been developed on the en-
dangered fish studied during the initial consul-
tation. An additional species offish has also been
federally listed in the interim. What is "on the
table" during reinitiation for purposes of con-
ducting the impact assessment, determining the
likelihood of jeopardy, and developing reason.
able and prudeor alternatives?

Defining the Scope of the Action

Triggering Consultation

The scope of consultation should be con-
sistent with and tailored to the nature and scope
of the "federal action" whicl1 triggered reini-
tiation. See North Slope Borough v. Andrus,
642 F.2d 589, 608 (D.C. Cir. 1980) (recog.
nizing that "[t]he perceived magnitude and cer-
taiory of potential hazards to endangered life
would naturally differ depending on the scope
of 'agency action' to which the ESA 'consulta-
tion' will refer."). This seems evideor enough,
but at times can be difficult in application. What
is the specific action the federal agency will be
authorizing, funding, or carrying out? In the
above example, the subject acrion is federal au.
thorization to allow a 50,000 acre-foot In ere.

NR&E/SUMMER 1993

mental expansion of an existing facility.
Consultation should not cover the entire
150,000 acre-foot stnJcture.
Other acrions may be more difficult to di-
agnose. Take for example proposed work for
repair (as opposed to enlargement) of an exist-
ing reservoir, requiring a subsequent CW A
S; 404 authorization. Although the requested
authorization can be characterized simply as al-
lowing certain structural rehabilitation with
minimal, if any, environmental consequences,
one could argue that where continued opera.
tion of the existing faciliry is dependent upon
completion of such work, the entire facility is
the subject of the decision before the agency
and, hence, should require evaluation during
consu Itation.
Another example is when federal permits
or licenses on existing projects come up for
renewal or reiSSllance. Whether this presents an
opportunity to reassess and redress impacts that
may have been allowed under earlier, less en-
vironmentally rigorous climates is not a simple
question, but it is a significant one. Federal li-
censes on I 57 hydroelectric projects expire this
year alone. Where the decision before the per-
mitting agency is whether to reauthorize a given
project, and the agency has legal authority to
turn thumbs down on continued project oper.
atian, a persuasive argument exists that the en.
tire project is up for grabs and vulnerable to
reanalysis under section 7. Suffice it to say that
project proponents should consult the substan-
tive statute governing the particular federal au-
thorization for guidance as to the extent of the
agency's authority and the nature of the deci-
sion before the agency in a given case. See North
Slope Borough v. Andrus, 486 F. Supp. 332,
350 (D.D.C. 1980), aff'd I"part, rev'dlnpart
on otber grounds, 642 F.2d 589, 608 (D.C.
Cir. 1980) (recognizing that "[aJgency acrion
as a factual concept-what the agency is doing
in a particular case-may be derived by scru-
tinizing the statute authorizing the agency ac-
tion.").
As part of defining the specific "action"
that will be scrutinized during reinitiation, one
must include both the direct and indirect ef-
fects of the activity..as well as any interrelated
or interdependent acrions. See 50 C.F.R.
S; 402.02 (1991) (defining "effects of the ac.
tion").
Although not defined in the ESA Regula-
tions, direct effects are commonly defined as
those effects that are caused by the action and
that occur at the same time and place. See 40
C.F.R. S; 1508.8(a) (1992) (NEPA regula.
tions). Under the dam enlargement example,
direct effects would include the local impacts
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