Oil Spill Response and the Endangered Species Act RRT IX Meeting Oakland, California June 28, 2012 Elizabeth Petras- National Marine Fisheries Service, National Oceanic and Atmospheric Administration Damian Higgins – U.S. Fish and Wildlife Service, Department of the Interior

The Endangered Species Act (ESA) and Federal responsibilities under Section 7 of the Act The Memorandum of Agreement (MOA) between the USCG and EPA and the US Fish and Wildlife Service and NOAA’s National Marine Fisheries Service The importance of planning Presentation layout

The Endangered Species Act ESA provides protection for listed species and their designated critical habitats. Section 9 of the ESA prohibits “take” of individual animals or adverse modification or destruction of critical habitat Take is defined in statute as: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

It is the responsibility of the Federal agency taking an action to consider the impacts to ESA listed species and critical habitats. Action is defined as “…all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas.” Federal agencies shall utilize their authorities to further the purposes of the ESA by carrying out conservation programs for the benefit of listed species (Section 7(a)(1)). Section 7 of the ESA

Section 7(a)(2) - Federal agencies must ensure that their actions don’t jeopardize the continued existence of listed species or destroy critical habitat. Federal agencies shall conduct interagency consultation, (aka Section 7 consultation), with the Services either formally or informally.

Types of ESA consultations Federal agency plans to take an action and makes an effects determination No effect on species or critical habitat = No need to consult No effect on species or critical habitat = No need to consult Action may affect species or critical habitat = Informal consultation (Service provides concurrence letter) Action may affect species or critical habitat = Informal consultation (Service provides concurrence letter) Action will adversely affect species or critical habitat = Formal consultation (Service provides biological opinion) Action will adversely affect species or critical habitat = Formal consultation (Service provides biological opinion)

Determining effects Request species list from Services Services must provide, within 30 days, a list of all ESA listed species and designated critical habitats. The list will include proposed species and critical habitats, if appropriate. These should be addressed in a conference opinion.

Informal consultation The action agency prepares a biological assessment to determine if a proposed action is likely adversely affect listed species or adversely modify or destroy critical habitat. If not likely to adversely affects, the action agency submits BA to Services and requests concurrence with the determination. Services provide written concurrence – no further action needed. OR….

Formal consultation process If the action is likely to adversely affect listed species or critical habitat, the Federal agency will initiate consultation (see 50 CFR ) Service consult with action agency and produce Biological Opinion within 135 days – although this may take longer with large or complicated projects. Each Service, NMFS and USFWS, a Biological Opinion for species under their jurisdiction.

Conclusions of Biological Opinions If Biological Opinion concludes no jeopardy, Service issues: Incidental Take Statement (ITS) Reasonable and Prudent Measures (RPM) Terms and Conditions (T&C) Conservation Recommendations RPM and T&C are non-discretionary actions to reduce the amount and impact of takes. Conservation recommendations are discretionary, related to 7(a)(1).

Conclusions of Biological Opinions If jeopardy, Service issues a Reasonable and Prudent Alternative (RPA) along with ITS, RPM’s and T&C’s and Conservation Recommendations. The RPA is an alternative to the proposed action that allows it to continue without jeopardizing listed species.

Reinitiation of consultation The following conditions trigger reinitiation of consultation: (1) the amount or extent of the incidental take is exceeded; (2) new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion; (3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action.

ESA consultation - Emergency Some circumstances require immediate action by Federal governments – imminent threats to life or property, acts of God, disasters, casualties, national defense, security emergencies, etc. These emergencies can not wait for a normal consultation. See 50 CFR

2001 Memorandum of Agreement (MOA) In 2001, USCG, EPA, NOAA and DOI signed a Memorandum of Agreement (MOA) regarding oil spill planning and response and the ESA. Provides a means for the Services and USCG and EPA to collaborate before, during and after a response. Appendices provide templates for use during planning and response

Oil spill Emergency consultation process Federal Agency (USCG/EPA) prepares for response ESA listed species or critical habitats in the area or nearby? No End Yes FOSC contacts Services (or RRT rep) to initiate Emergency consultation and to get recommendations to minimize effects Response Did response actions cause take of ESA listed species? FOSC initiates informal consultation, Services issue concurrence letter FOSC initiates formal consultation, Services issue Biological Opinions Yes No Post response

Post Response (Appendix B) When case is closed, FOSC initiates consultation with the Services by submitting the following: A cover letter requesting consultation A description of the oil spill response An evaluation of response actions and their impacts to listed species and CH o Documentation of how Services recommendations were implemented o Results of implementation in minimizing take Comparison of response actions with pre-planning measures in the ACP. If no adverse effects, informal consultation If adverse effects, formal consultation process: Services issues Biological Opinions Biological Opinions forwarded to FOSC, copies to SSC, DOI and DOC RRT reps, and appropriate Area Committee.

Planning and the MOA “This agreement is intended to be used at the area committee level primarily to identify and incorporate plans and procedures to protect listed species and designated critical habitat during spill planning and response activities..”

MOA and pre-spill planning (MOA Appendix A & C) The FOSC will work with the Services to determine if response may occur in areas where ESA listed species or critical habitat are found. FOSC, Area Committees and Services will evaluate actions. Ultimately, action agency must make determination on whether actions may adversely affect listed species or not. Services provide expertise on ways to mitigate effects. is responsible for determining if ESA listed species are in the areas of, Areas Committee, and Services review response strategies to help responders understand the species and habitats that may be affected and any existing mitigations. Modifications to the ACP/RCP may be necessary following the review by the Services

FOSC requests expertise & species list from Services RRC/SSC act as liaisons Species/CH identified in area? Working Group develops strategies (App. C) Species/CH potentially adversely affected? Joint Working Group formed in ACs No further consultation required No effect Services provide concurrence letter Services use info from WG to provide BO Informal Consultation Formal Consultation YES NO

Section 7 coverage For actions not likely to adversely affect listed species or adversely modify critical habitat, the action agency provides rationale for determination and provides to Service(s). Service(s) provide concurrence letter.

Section 7 coverage If response actions are likely to result in adverse effects USCG/EPA can request formal consultation with the Services. Services write Biological Opinions following normal Section 7 processes

Programmatic consultation Programmatic consultation addresses an agency’s multiple actions on a program, regional or other basis. Services write Programmatic Biological Opinions following normal Section 7 processes. Even with consultation complete, Emergency consultations may be required during response.

The collaborations described in the MOA provide responders An awareness of ESA listed species and habitats Techniques to minimize impacts to species and habitats Protection from ESA Section 9 take prohibition (Federal law)

Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans. President Richard Nixon – Statement upon signing the Endangered Species Act, December 28, 1973