FWS/NMFS Joint Recommended Approach for International Section 9 Consultation in Habitat Conservation Planning
(d) of the Endangered Species Act (ESA) prohibits federal agencies and permit applicants from making any "irreversible or irretrievable commitment of resources" ....which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate section 7(a)(2) of the ESA, during consultation under section 7(a)(2). Section 7(a)(2) prohibits Federal actions that jeopardize the continued existence of listed species or that destroy or adversely modify their critical habitat.
Congress added section 7(d) to the ESA in 1978 following a situation where the Tennessee Valley Authority (TVA) had substantially constructed Tellico Dam, thereby eliminating any reasonable and prudent alternatives to the proposed dam construction, which upon closing, would inundate the critical habitat of the endangered snail darter. Thus a principal purpose of section 7(d) is "to prevent Federal agencies from 'steam rolling' activity in order to secure completion of projects regardless of their impact on endangered species." [North Slope Borough v. Andrus, 486 F.Supp. 332, 356 (D.D.C.), aff'd in part and reversed in part on other grounds, 642 F.2d 589 (D.C. Cir. 1980)]. More recently, the U.S. Court of Appeals for the Ninth Circuit wrote "Section 7(d) does not amend section 7(a) to read that a biological opinion is not required before the initiation of agency action so long as there is no irreversible or irretrievable commitment of resources ....Rather, section 7(d) clarifies the requirements of Section 7 (a), ensuring that the status quo will be maintained during the consultation process" [Conner v. Burford, 848 F.2d 1441, 1455 n.34 (9th Cir. 1988)].
The Services' Interagency Consultation Handbook provides limited guidance regarding the application of section 7(d) during the consultation process other than to state that the section 7(d) restriction is triggered by the determination of "may affect." The Consultation Handbook also states that "Not all irreversible and irretrievable commitments of resources are prohibited. The formulation or implementation of any reasonable and prudent alternative must be foreclosed by the resource commitment to violate section 7(d). Thus, resource commitments may occur as long as the action agency retains sufficient discretion and flexibility to modify its action to allow formulation and implementation of an appropriate reasonable and prudent alternative." Destroying potential alternative habitat within the project area, for example, could violate section 7(d).
Since section 7(d) does not prohibit all activities during consultation, the permissible application of section 7(d) is increasingly becoming an issue for the Services, especially during internal Service consultations involving the issuance of section 10(a)(1)(B) permits and review of Habitat Conservation Plans (HCPs). Concerns over this issue have also been raised by HCP applicants following a district court decision [Environmental Protection Information Center v. Pacific Lumber Company, 67 F. Supp. 2nd 1113 (N.D. Cal 1999)] which asserts that section 7(d) applies to both formal and informal consultations as specified in 50 CFR part 402. The Services had previously interpreted section 7(d) to apply only during formal consultation
The purpose of this guidance is to provide a recommended approach for Service biologists concerning the application of section 7(d) to internal section 7 consultations involving the HCP Program. The Services believe the approach recommended in this guidance fully complies with section 7(d) while minimizing the uncertainty of continuing ongoing activities of potential HCP applicants. Additional guidance on the general application of section 7(d) will be developed at a later date and incorporated into FWS's existing guidance for Intra-Service consultations (Appendix E, Section 7 Handbook), and NMFS's Intra-Service guidance currently under development. This guidance does not substantially change the way the Services conduct formal consultation on the issuance of incidental take permits in the HCP program.
Section 7 Consultation on the Issuance of Incidental Take Permits
With traditional and intra-Service section 7 consultation, action agencies must initiate consultation when they determine that listed species or designated critical habitat may be affected by a proposed project. Section 7 of the ESA requires Federal agencies to initiate consultation with the Services when they determine that any action they authorize, fund, or carry out may affect a listed species or designated critical habitat. Although the ESA does not dictate a timeframe within which an action agency must make this determination, agencies should review their actions at the earliest possible time to determine whether consultation is required. The regulations for implementing section 7 of the ESA at 50 CFR part 402 describe procedures for conducting consultations, including distinguishing formal consultation from informal consultation.
The Services acknowledge that issuance of incidental take permits under section 10(a)(1)(B) constitutes a Federal action subject to the Interagency consultation provisions of the ESA, including the prohibition on irreversible or irretrievable commitment of resources that preclude the development or implementation of reasonable and prudent alternatives, which is found in section 7(d). However, until the Services receive a complete permit application there is no Federal action that may affect listed species. As with all requests for section 7 consultation, formal consultation will not be initiated until all the information specified in 50 CFR 402.14 has been submitted.
The Use of Informal Consultation and the HCP Program
The HCP Handbook stresses consideration of section 7 requirements from the beginning of HCP development, and that the section 7 and 10 processes should be carried out concurrently rather than sequentially. The Services developed the HCP Handbook under the assumption that section 7(d) applies only to formal consultation. Informal consultation for HCPs was thought to include all assistance to the applicant during the HCP development phase and all communications between the Services Field and Regional Offices. Although the Services have disagreed with the determination [Environmental Protection Information Center v. Pacific Lumber Company, 67 F. supp. 2nd 1113 (N.D. Cal 1999)] that section 7(d) applies to both informal and formal consultation, this guidance is crafted to be consistent with that decision.
Informal consultation is defined in 50 CFR 402.13 as "...an optional process...between the Service and the Federal agency..., designed to assist the Federal agency in determining whether formal consultation or a conference is required" (emphasis added). In the HCP process, the Federal action is the issuance of an incidental take permit; an action which, by its very nature, will always require formal consultation. Thus informal consultation, designed to help determine whether formal consultation is needed, is not applicable to HCP development.
Initiation of Formal Consultation
In order to distinguish the point at which the 7(d) restrictions apply to the Services and the HCP applicant, the Services must document the initiation of formal consultation in the administrative record. The HCP Handbook gives the Services discretion to use any reasonable method for conducting intra-Service consultations, so long as the resulting determination is reviewed or finalized by Service staff other than the Field Office staff HCP representative and the method does not result in failure to meet permit target processing times.
The HCP Handbook provides flexibility as to the exact stage in the HCP process when consultation is initiated. Generally, this should be no earlier than after a complete incidental take permit application has been submitted by the applicant, since it is at this stage that the Services are required to take action. Formal consultation begins when the action agency submits a written request for formal consultation and provides all the relevant data required by 50 CFR 402.14(c). If all required data are not initially submitted, formal consultation is initiated on the date on which all required information is received by the Services. Therefore, if significant changes to the HCP are anticipated after submission of the application or after the public comment period, formal consultation should not be initiated until the changes have been incorporated into the project description.
The HCP Handbook suggests beginning work on the draft biological opinion early in the process to help streamline the permit processing workload and to identify any problems early in the process. Since the Services want to encourage early identification of problems, the Service may prepare a biological evaluation/assessment (or equivalent) to include in the initiation of consultation. For FWS, the biological evaluation/assessment may be based on the FWS intra-Service consultation evaluation form in the Interagency Consultation Handbook (Attachment 3). To maximize the benefits of early coordination, the information in the biological evaluation/assessment (e.g., project description, environmental baseline and species account, and effects to the species) should be structured so that it can be readily assimilated into the biological opinion. The biological assessment/evaluation does not make a determination of whether the action is likely to jeopardize listed species, as that is the function of the biological opinion.
The administrative record of an HCP should document the formal consultation process, including when formal consultation was requested by the "action agency" equivalent (i.e., Regional office or other decision-making office) and initiated by the "consulting agency" equivalent (i.e., the appropriate Service Ecological Services/Endangered Species Office). A complete formal consultation initiation package for an HCP includes the incidental take permit application package (including any draft NEPA document, draft implementing agreement, draft HCP, application form, fee, etc.) and may include a biological evaluation/assessment. The Regions have discretion as to which documents are included in the initiation package.
Intra-Service consultations on the issuance of incidental take permits may be confusing to Service personnel since we act as both the consulting agency (our traditional role) and the action agency. To initiate formal consultation, the Services' "action agency" equivalent (i.e., Regional office or other office with authority to issue or deny the permit) forwards a memorandum to the "consulting agency" equivalent (i.e., the appropriate Service Ecological Services/Endangered Species Office) requesting that formal consultation be initiated. FWS may use the intra-Service biological evaluation form to initiate formal consultation as long as the request for initiation is very clear within the document. If the initiation package includes all of the information required by the section 7 regulations (50 CFR 404.14), then the date the memorandum and package are received starts the formal consultation clock and any possible application of section 7(d). It is critical that the "consulting agency" equivalent clearly documents in the administrative record when formal consultation is initiated. The simplest method would be to provide the "action agency" equivalent with an acknowledgment that a complete initiation package was received and formal consultation has been initiated.
Formal consultation then proceeds as with any Federal action and the biological opinion is finalized prior to issuing or denying the permit. As per 50 CFR 402.14, the applicant may request a copy of a draft biological opinion. If at any time during formal consultation the Services estimate that the timelines for formal consultation will be exceeded, the action agency equivalent and consulting agency equivalent may extend formal consultation up to 60 days without applicant approval (see 50 CFR 402.14). Additional extensions (i.e., beyond 60 days), require the approval of the applicant. These situations usually arise when there are significant changes to the HCP or other documents that would necessitate changes in the biological evaluation/assessment. However, this should be determined sometime between development or receipt of the application and after the close of the comment period. If such a delay is anticipated prior to the initiation of formal consultation, discuss with the applicant the implications of initiating formal consultation (i.e., responsibilities under section 7(d)), and the possible outcomes if a biological opinion is issued for the project as proposed, such as, permit denial as a result of a jeopardy opinion). The applicant is likely to agree with delaying initiation of formal consultation until the project description has been adjusted to incorporate the new information. Service biologists should emphasize that although the applicant may not be restricted by section 7(d) until they formally submit their application, the prohibitions on take found in section 9 of the ESA continue to apply.
Section 9 of the ESA prohibits any person from taking endangered species or threatened species when taking is prohibited per section 4(d). Due to the application of section 7(d) to the section 10(a)(1)(B) permitting process, applicants for incidental take permits are also required to avoid engaging in any action that makes an irreversible or irretrievable commitment of resources that forecloses the formulation or implementation of any reasonable and prudent alternatives that would avoid jeopardizing a listed species or result in the destruction or adverse modification of critical habitat. The Ninth Circuit Court of Appeals described the purpose of section 7(d) as to "ensure that the status quo will be maintained during the consultation process" [Conner v. Burford, 848 F.2d 1441]. It is thus reasonable to assume that section 7(d) prohibits any pre-permit activity that will cause significant effects to habitat, even if that activity does not result in take.
Neither the statute nor the Services' Joint Interagency regulations expressly require that the action agency consult with or obtain the concurrence of the Services when it determines that an activity is not prohibited by section 7(d). However, under certain circumstances, the Services may be requested by an applicant to determine whether "pre-permit" activities related to an HCP in development would violate section 7(d). If the Services determine it to be appropriate, the Services, as the action agency, may make a section 7(d) determination on "pre-permit" activities that an applicant will undertake while the permit application is being processed. The section 7(d) determination should include enough background information to provide a strong justification for whether or not the proposed activities violate section 7(d). It should also, to address standards of judicial review embodied in the Administrative Procedure Act, articulate a rational connection between evidence that is available and the determination that is made. A 7(d) determination that allows a "pre-permit" activity does not authorize "take" prior to issuance of the permit.
The 7(d) determination should focus on both aspects of section 7(d): 1) whether the ongoing action represents an irretrievable and irreversible commitment of resources; and 2) whether the irreversible and irretrievable commitment of resources would foreclose the formulation or implementation of reasonable and prudent alternative measures to avoid jeopardy or the destruction or adverse modification of critical habitat. If the pre-permit activities that the applicant wishes to undertake make an irretrievable and irreversible commitment of resources that would foreclose the development or implementation of reasonable and prudent alternatives, then the Services cannot issue a determination that the proposed actions would not violate section 7(d) and the activities should be postponed until a final decision is made on the permit. When examining these factors, the Services should consider the timeframe and geographic extent within which the activities will occur. For example, if the activities are small in scope relative to the HCP planning area, they are less likely to irretrievably and irreversibly commit resources. Likewise, short-term or ongoing activities during the formal consultation timeframe may or may not foreclose formulation or implementation of any RPA, depending on the flexibility inherent in the action. Thus, resource commitments may occur as long as the action agency retains sufficient discretion and flexibility to formulate any reasonable and prudent alternatives.
Activities that have flexibility to change as per the finalization of formal consultation and approval of the HCP are more likely to be management-based activities such as forest management, agriculture, water management, or other similar activity. Activities that result in permanent habitat loss would likely result in the destruction of potential alternative habitat within the project area and could violate section 7(d). There may be situations where permanent loss of potential habitat or areas that may provide habitat in the future is consistent with section 7(d) if it can be shown that: 1) the loss of this potential habitat would not result in "take" and 2) the potential habitat does not provide a viable option for the survival and recovery of the species (e.g., small isolated patches that are not significant to the species). Finally, it should be made very clear to the applicant that even if the Services make a 7(d) determination, the applicant still cannot engage in actions that would result in take of listed species until a section 10(a)(1)(B) permit is issued.
Summary Outline of Section 7 Formal Consultation for the Issuance of Incidental Take Permits.
Step 1 Provide technical assistance during HCP development.
Step 2 Develop a biological evaluation/assessment, if needed.
Step 3 Submit an incidental take permit application for processing. Initiate formal consultation when appropriate.
Step 4 Provide a 7(d) determination, if needed.
Step 5 Complete permit processing, including issuance of the biological opinion, prior to issuance of incidental take permit.