Biological Opinions & Endangered Species Act Consultation – A “How To” Guide for Working with Agencies on ESA Issues MATTHEW A. LOVE Partner- Seattle, Washington February 19, 2013 Portland, OR

The Purpose of the ESA The ESA, passed by Congress in 1973, is designed to protect critically imperiled species from extinction. Administered by: Department of Commerce – National Marine Fisheries Service (NMFS) Authority over marine species Department of Interior – U.S. Fish and Wildlife Service (USFWS) Authority over freshwater fish and all other species “The most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978). - ESA protects both the species and the ecosystems upon which they depend. ESA Seminar - Anchorage, Alaska

The Endangered Species Act (ESA) Section 4 Listing Process and Critical Habitat Designations Section 7 Consultation Requirements Section 9 Take Prohibition Section 10 Incidental Take and Habitat Conservation Plans Section 11 Enforcement Biological Opinions & Endangered Species Act Consultation – Portland, OR

Overview of ESA Section 7 ESA Section 7’s substantive and procedural obligations Initiation of Section 7 consultation Roles of action agency, resource agency, and the license applicant (as designated non-federal representative) Section 7 consultation process BiOps, ITS, RPAs, RPMs, and TCs Reinitiation of consultation Biological Opinions & Endangered Species Act Consultation – Portland, OR

Section 7’s Substantive Obligation NWHA Annual Conference - Portland, Oregon

Section 7’s Substantive Obligation ESA § 7(a)(2): “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [Critical Habitat].” Tennessee Valley Authority v. Hill (1978): “One would be hard-pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species or ‘result in the destruction or modification of habitat of such species’. . . . This language admits of no exception.” In issuing a license, FERC has a substantive obligation under Section 7 not to jeopardize the continued existence of a species. Biological Opinions & Endangered Species Act Consultation – Portland, OR

Section 7’s Procedural Obligations NWHA Annual Conference - Portland, Oregon

What is Involved in a Section 7 Consultation? Threshold considerations Biological assessment Informal consultation Formal consultation Biological opinion Incidental take statement Biological Opinions & Endangered Species Act Consultation – Portland, OR

The Informal Consultation Process Discretionary Federal Actions: Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007) “Action” is broadly 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.” 50 C.F.R. § 402.02. Ongoing agency actions Biological Opinions & Endangered Species Act Consultation – Portland, OR

INFORMAL CONSULTATION Federal Agency Action Major Construction Activity Biological Assessment No Effect Not Likely to Adversely Affect Federal Agency Action Informal Consultation If “no effect,” consultation ends “Major construction activities” trigger BA preparation Those construction projects, or other undertakings having “similar physical impacts,” that are major federal actions significantly affecting the quality of the human environment as referred to in NEPA. 50 C.F.R. § 402.02. BA evaluates potential effects of the action on listed species and designated critical habitat in the action area Must use “best scientific and commercial data available” Role of non-federal representative NEPA documents Not Likely to Adversely Affect Informal discussion between Service and action agency to determine if formal consultation required If action is not likely to adversely affect listed species or critical habitat, consultation ends Service issues written concurrence Biological Opinions & Endangered Species Act Consultation – Portland, OR

The Formal Consultation Process Biological Opinions & Endangered Species Act Consultation – Portland, OR

Initiation of Formal Consultation Biological Opinion Required if proposed action “is likely to adversely affect” listed species or critical habitat Under Section 7(d), no irreversible or irretrievable commitment of resources that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures Proposed action Environmental baseline Status of the species in the action area Factors affecting species within the action area Analysis of effects Direct effects Indirect effects Cumulative effects Jeopardy determination Incidental take statement (ITS) Conservation recommendations Biological Opinions & Endangered Species Act Consultation – Portland, OR

Biological Opinion Proposed action Environmental baseline Analysis of effects Jeopardy determination Reasonable and prudent alternative (RPA) Incidental take statement (ITS) Conservation recommendations Proposed action Environmental baseline Status of the species in the action area Factors affecting species within the action area Analysis of effects Direct effects Indirect effects Cumulative effects Jeopardy determination Jeopardy occurs when an action can reasonably be expected to appreciably reduce the likelihood of both the survival and recovery of a listed species in the wild Adverse modification of critical habitat is direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of a listed species Reasonable and prudent alternative (RPA) Incidental take statement (ITS) If incidental take likely, BiOp must include ITS ITS contains: Amount and extent of take Numerical amount or surrogate Adequate monitoring and reporting requirements Reasonable and prudent measures (RPM) and terms and conditions (TC) Conservation recommendations Biological Opinions & Endangered Species Act Consultation – Portland, OR

Reinitiating Consultation When action agency retains discretionary control, it has continuing obligation to reinitiate consultation if: the incidental take statement is exceeded; new information reveals new effects of the action; action is subsequently modified; or new species is listed or critical habitat designated Biological Opinions & Endangered Species Act Consultation – Portland, OR

Keys to Success Biological Opinions & Endangered Species Act Consultation – Portland, OR

February 19, 2013 Portland, OR For more information MATTHEW A. LOVE 206-829-1809 mal@vnf.com 719 Second Avenue Suite 1150 Seattle, WA 98104 February 19, 2013 Portland, OR