Order Code RL34641
Proposed Changes to Regulations
Governing Consultation Under the
Endangered Species Act (ESA)
Updated September 23, 2008
Kristina Alexander
Legislative Attorney
American Law Division
M. Lynne Corn
Specialist in Natural Resources Policy
Resources Science and Industry Division

---

Proposed Changes to Regulations Governing
Consultation Under the Endangered Species Act (ESA)
Summary
The Endangered Species Act (ESA) requires all federal agencies to consult with
either the Fish and Wildlife Service or the National Marine Fisheries Service (the
Services) to carry out programs to conserve endangered and threatened species. The
agencies, in consultation with the Services, determine whether their actions may
jeopardize the continued existence of a listed species or destroy or adversely modify
designated critical habitat of listed species. In August 2008, FWS and NMFS
proposed changes to the regulations that address the consultation process. The
deadline for comments is October 15, 2008.
While regulatory changes cannot modify the requirements placed on the
agencies by the statute itself, the revisions are intended to do three things, according
to the Services: clarify when consultation is applicable; clarify certain definitions,
including the correct standards for the effects analysis; and establish time frames for
consultation. The Services indicated that the proposed regulations would serve to
clarify that the ESA did not require consultation on greenhouse gas emissions’
contribution to global warming and its associated impacts on listed species.
The proposed regulations would give federal agencies greater responsibility in
determining when and how their actions may affect listed species. They also attempt
to clarify issues of causation — when an agency action truly affects the well-being
of listed species or critical habitat. The changes modify administrative definitions
and alter the process for consultations. The definitions that are modified include
cumulative effects, effects of an action, and biological assessment. The process
changes add five criteria for determining when consultations do not apply, instead of
the current single factor (whether the agency action was discretionary or not). The
Action Agency would continue to determine whether consultation was required in all
cases. The processes for formal and informal consultations also would be revised to
include a 60-day deadline (which may be increased to 120 days) for the appropriate
Service to concur in writing with an Action Agency finding during informal
consultation that its action is not likely to adversely affect a species or habitat. If the
Service failed to respond in writing, the project could continue without further
consultation at the discretion of the Action Agency.

---

Contents
Introduction and Background into the Section 7 Consultation Process . . . . . 1
Current Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Authority to Issue Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Proposed Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Amended Definition of Biological Assessment (§ 402.02) . . . . . . . . . . 8
Amended Definition of Cumulative Effects (§ 402.02) . . . . . . . . . . . . . 8
Amended Definition of Effects of the Action (§ 402.02) . . . . . . . . . . . 9
When a Consultation Is Applicable (§ 402.03) . . . . . . . . . . . . . . . . . . 11
Informal Consultation (§ 402.13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Formal Consultation (§ 402.14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Policy Implications of the Proposed Regulatory Changes . . . . . . . . . . . . . . 17
Implementing the Rules: Effects on Agency Practice . . . . . . . . . . . . . 17
Revisions to § 402.02 and § 402.03(b): More Consultations
or Fewer? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Revisions to § 402.13 and § 402.14: A New Default
for Ending Consultation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Amended Definition of Effects of the Action (§ 402.02):
Indirect Effects and Essential Causes . . . . . . . . . . . . . . . . . . . . . 20
Effects on Consultation Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Climate Change and the Proposed Regulations . . . . . . . . . . . . . . . . . . . . . . 21
Appendix A. Internal Consultation: The National Fire Plan (NFP)
of the Healthy Forests Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Appendix B. Deadlines: The Desert Rock Energy Project . . . . . . . . . . . . . 33
List of Figures
Figure 1. Section 7 Consultation Process Described by Statute . . . . . . . . . . . . . . 3
Figure 2. Section 7 Consultation Described by Regulation . . . . . . . . . . . . . . . . . . 5
List of Tables
Table 1. Comparison of Current Regulations to Proposed Regulations . . . . . . . 24
Table 2. Number of Projects Reviewed by NMFS that Did Not
Meet Specified Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Table 3. Number of Projects Reviewed by FWS that Did Not
Meet Specified Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Table 4. Total Number of Criteria Missed, by Project for FWS Species . . . . . . 32

---

Proposed Changes to Regulations
Governing Consultation Under the
Endangered Species Act (ESA)
Introduction and Background into the
Section 7 Consultation Process
The purpose of the Endangered Species Act (ESA) (16 U.S.C. §§ 1531 et seq.)
is threefold: to provide a means to conserve ecosystems upon which endangered and
threatened species depend; to provide a program to protect those species; and to take
steps to achieve the purposes of related treaties and conventions.1 Section 7 of the
ESA requires all federal agencies to carry out programs for the conservation of
endangered and threatened species in furtherance of those purposes.2 The statute says
that the federal agencies “shall” work toward those goals “in consultation with and
with the assistance of” the two agencies that supervise the ESA program: the Fish
and Wildlife Service (FWS) of the Department of the Interior, and the National
Marine Fisheries Service (NMFS) of the Department of Commerce (together: the
Services).
The ESA prohibits taking endangered wildlife species, defining take as: harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage
in any such conduct.3 The purpose of the Section 7 consultation is to make sure that
agencies avoid jeopardizing listed species or adversely modifying their designated
critical habitat during agency actions. If some taking cannot be avoided but is
incidental to the otherwise lawful purpose, the effects of that taking are to be
minimized, and authorized by the Service through an Incidental Take Statement.
Acting without a Section 7 consultation leaves a federal agency at risk of violating
the ESA.
The Section 7 consultation begins with identifying whether there are listed
species in the affected area of planned federal programs, and then determining
whether the federal action will jeopardize the continued existence of the species or
destroy or adversely modify their critical habitat.4 It involves an interchange between
1 16 U.S.C. § 1531(b).
2 16 U.S.C. § 1536(a)(1). “Section 7” refers to where the consultation requirement appears
in the public law establishing the Endangered Species Act, P.L. 93-205. The citations in this
report will refer to the codified version of that law.
3 16 U.S.C. § 1532(19).
4 Although there are three types of actions under Section 7, this report will discuss only
(continued...)

---

CRS-2
the relevant Service and the federal agency proposing to act, known as the Action
Agency. The statute establishes a general process and a substantive requirement.
The process is as follows:
1) The Action Agency “shall” request the Service for information on whether any
species “which is listed or proposed to be listed may be present in the area of
such proposed action;”5
2) The Service will advise whether species “may be present,” based on the best
scientific and commercial data available;6
3) If the Service says species may be present, the action agency “shall conduct
a biological assessment” to identify listed species “likely to be affected by such
action.”7
4) The biological assessment (BA) is submitted to the Service;
5) Based on the BA and after consultation with the action agency, the Service
will issue its opinion as to “how the agency action affects species or its critical
habitat.” If the Service finds the action may place the species in jeopardy or
adversely modifies critical habitat, the Service is required to suggest “reasonable
and prudent alternatives” that “can be taken” by the action agency so that its
project can occur without violating the act;8 and
6) If some take will occur, the Service will issue an Incidental Take Statement
that will specify the reasonable and prudent measures that are necessary to
minimize impacts.9
4 (...continued)
those consultations brought under Section 7(a)(2), and not consultations in conjunction with
an applicant under Section 7(a)(3), or the requirement to confer with the Service under
Section 7(a)(4) for actions that might harm species proposed for listing.
5 16 U.S.C. § 1536(c)(1).
6 16 U.S.C. § 1536(c)(1).
7 16 U.S.C. § 1536(c)(1).
8 16 U.S.C. § 1536(b)(3)(A).
9 16 U.S.C. § 1536(b)(4).

---

CRS-3
Figure 1. Section 7 Consultation Process
Described by Statute
Source: CRS.
The substantive requirement is that the Action Agencies will ensure that the actions
do not put listed species in jeopardy of extinction or harm their habitats.
Section 7 also prohibits a federal agency from making “irreversible or
irretrievable commitment of resources” that would foreclose the effectiveness of any
reasonable and prudent alternative measures suggested by the Service after
consultation was concluded.10
10 16 U.S.C. § 1536(d).

---

CRS-4
Current Regulations
The current regulations11 attempted to detail the provisions of the statute. The
regulations for Section 7 establish a slightly different process for consultation based
on the requirements as laid out in the statute. They also provide definitions and
explanations of what the Action Agencies and the Services are evaluating when
performing their parts of the consultation process. Before considering the proposed
changes, this report will review the current regulations, established by rulemaking in
1986. A comparison of the current regulations with the proposed changes is in Table
1 at the end of this report.
The current regulations establish a formal consultation process and an informal
consultation process. Formal consultation is defined as the process “that commences
with the Federal agency’s written request for consultation under section 7(a)(2) of the
Act and concludes with the Service’s issuance of the biological opinion under section
7(b)(3) of the Act.”12 Informal consultation is defined as “an optional process that
includes all discussions, correspondence, etc., between the Service and the Federal
agency ... prior to formal consultation, if required.”13
The decision of which process is appropriate for an Action Agency is left to that
agency. Informal consultation involves the Service, but does not require the Service
to issue a biological opinion (BiOp). Instead, the informal consultation can be used
to determine that the action is “not likely to adversely affect listed species or critical
habitat,” at which point the consultation process is terminated if the Service provides
a written concurrence.14
Under the regulations, the consultation process follows this course:
1) The Action Agency decides whether there are listed species
present;
2) If there are listed species present, and the project is a major
construction project, the Action Agency prepares a Biological
Assessment;
3) The Action Agency determines whether the action is likely to
affect listed species and seeks the concurrence of the Service;
4) If the Service concurs that species are likely to be adversely
affected, the Action Agency initiates consultation by submitting a
consultation package;
5) Upon receipt of the initiation package, the Service determines
whether the action is likely to jeopardize listed species or whether it
is likely to destroy or adversely affect critical habitat;
6) The Service issues a biological opinion giving its conclusion on
those two issues.
11 50 C.F.R. part 402.
12 50 C.F.R. § 402.2.
13 50 C.F.R. § 402.2.
14 50 C.F.R. § 402.13.

---

CRS-5
Figure 2. Section 7 Consultation Described by Regulation
Source: National Marine Fisheries Service training materials.

---

CRS-6
While not stated in the statute, as a practical matter, not every federal action
requires consultation. It has long been in the discretion of the Action Agencies to
determine whether a proposed action requires consultation. Where an Action Agency
realizes its project may affect a listed species or critical habitat, it must formally
consult with the Service.15 This decision must be made “at the earliest possible
time.”16 If the action may affect critical habitat or species, then the Action Agency
will submit an “initiation package” described in Section 402.14(c). This information
must be based on the best scientific and commercial data available.17 The initiation
package starts the formal consultation process.
The Service reviews the information sent by the Action Agency, evaluating the
effects of the action and the cumulative effects. These terms are defined in the
regulations, and their definitions have been changed in the proposed amended
regulations, as will be discussed later. If the Service determines that the action is
likely to jeopardize the continued existence of a listed species or adversely modify
critical habitat, it issues a “jeopardy” BiOp that will include reasonable and prudent
alternatives to the proposed action. The Service will also issue an incidental take
statement (ITS), which operates to excuse the agency from any prohibited take to a
listed species.
Enforcement of these processes is vague. The current regulations allow a
Service to make a written request to an Action Agency when the Service identifies
an action that may affect listed species or critical habitat.18 The Service may also
request additional information if it does not have adequate data on which to base its
BiOp. But the Service has no way of forcing an Action Agency to consult. However,
if an Action Agency does not consult with the Service, it runs the risk of not only
jeopardizing a listed species or adversely affecting the critical habitat, but of violating
the ESA by taking a listed species. The assurance provided by the BiOp and the ITS
motivates agencies to participate in consultation. As a practical matter, enforcement
is initiated by citizen suit and performed by the courts.
Authority to Issue Regulations
Generally speaking, federal agencies are authorized to issue regulations to effect
the purposes of a statute. To be valid, however, the regulations must be “consistent
with the statute under which they were promulgated.”19 The determination of
statutory consistency is left to the courts.20
15 See NRDC v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998).
16 50 C.F.R. § 402.14.
17 50 C.F.R. § 402.14(d).
18 50 C.F.R. § 402.14(a).
19 United States v. Larionoff, 431 U.S. 864, 873 (1977).
20 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 n. 9
(1984).

---

CRS-7
Proposed Regulations
On August 15, 2008, the Services issued proposed revisions to the Section 7
consultation regulations. Comments to the proposed changes are due by September
15, 2008.21 On September 12, 2008, the Services changed the deadline to October
15, 2008.22
The proposed regulation attempts to reduce the workload of the Services and
streamline the consultation process by: 1) allowing for already prepared documents
to be used as a BA, hence eliminating the need to create a new document; 2) allowing
Action Agencies to determine the effects of their actions on listed species in certain
situations; 3) clarifying the causation standard for determining the effects of Action
Agencies; and 4) making procedural changes to the informal consultation process.23
The regulatory notice states that one goal is “to reduce the number of
unnecessary consultations.”24 According to the GAO report cited by the notice, the
problem of unnecessary consultations was not suggested by the Services, but was
raised by Action Agencies.25 The Services stated the consultation process was
necessary, even for actions with positive effects or minor effects, in order to enforce
the ESA.26
An additional stated goal of the proposed regulations relates to climate change.
The Services state that the proposed modifications will “reinforce the Services’
current view that there is no requirement to consult on [greenhouse gas] emissions’
contribution to global warming and its associated impacts on listed species.”27 Some
believe that the ESA is not the appropriate statutory vehicle for regulating greenhouse
gas emissions, as it was not implemented to analyze power plants. Others note that
the ESA has no exceptions for types of projects and regulations cannot create one.
Still others suggest that the existing causation requirements linking an agency action
to a particular harm already limit the ESA’s use as a tool in regulating global
warming.
Six substantive changes were proposed to the current regulations. The
alterations included the following:
21 There is no statutory requirement for the length of a comment period for a draft regulation.
Executive Order 12866, § 6(a) states that agencies should provide a 60-day comment period.
58 Fed. Reg. 51735 (October 4, 1993).
22 73 Fed. Reg. 52942, 52943 (Sept. 12, 2008).
23 73 Fed. Reg. at 47869.
24 73 Fed. Reg. at 47871.
25 GAO, ESA: More Federal Management Attention Is Needed to Improve the Consultation
Process, GAO-04-93, pp. 43-44 (March 2004), available online at [http://www.gao.gov/
new.items/d0493.pdf].
26 Id.
27 73 Fed. Reg. at 47872.

---

CRS-8
! changing the definition of biological assessment;28
! changing the definition of cumulative effects;29
! changing the definition of effects of the action;30
! changing when a consultation is required;31
! changing the procedure for informal consultation;32 and
! changing the procedure for formal consultation.33
Amended Definition of Biological Assessment (§ 402.02). The change
to the definition of BA would add a sentence to allow other documents to serve as a
formal BA, promoting efficiency. Action Agencies would not have to create a special
document when that information was already available in another form. This appears
consistent with the statute, which already allows the BA to be part of a review under
the National Environmental Policy Act (NEPA).34 Additionally, the current
regulations already provide that the contents of a BA were at the discretion of the
Action Agency.35 Therefore, this additional statement appears to have little legal
impact on the operation of the consultation process.
Amended Definition of Cumulative Effects (§ 402.02). The proposed
regulations would add a sentence to the existing definition of cumulative effects. The
current version defines cumulative effects as “those effects of future State or private
activities, not involving Federal activities, that are reasonably certain to occur within
the action area.” The amendment would add this sentence: “Cumulative effects do
not include future Federal activities that are physically located within the action area
of the particular Federal action under consultation.”
The concept of cumulative effects is created by regulation, not by statute. In
1986, when this regulation was established, one commenter on the draft rule opposed
the definition, arguing that the act did not require it. The Service responded that
since federal agencies were required to investigate environmental impacts of a
proposed action in compliance with NEPA, and NEPA required a cumulative effects
analysis, it was the Action Agency’s “responsibility to develop this information.”36
In the notice accompanying the proposed regulations, the Services stated that
28 50 C.F.R. § 402.02.
29 50 C.F.R. § 402.02.
30 50 C.F.R. § 402.02.
31 50 C.F.R. § 402.03.
32 50 C.F.R. § 402.13.
33 50 C.F.R. § 402.14.
34 42 U.S.C. §§ 4321 et seq. See Wilderness Society v. Wisely, 524 F. Supp. 2d 1285, 1303
(D. Colo. 2007) (holding that an environmental assessment under NEPA sufficed to provide
the Service with adequate information about listed species).
35 50 C.F.R. § 402.12(f) (listing five areas that may be considered for inclusion).
36 51 Fed. Reg. 19926, 19932 (June 3, 1986).

---

CRS-9
cumulative effects in the NEPA context is broader than that under the ESA, noting
that the ESA does not require consideration of future federal actions.37
Action Agencies are required to consider cumulative effects in their BAs,38 and
to provide a written analysis of cumulative effects in the request to initiate formal
consultation.39 The Services are also required by regulation to consider cumulative
effects. During formal consultation, a Service must review cumulative effects,40 and
its BiOp must be based on whether the action, together with cumulative effects of the
action, will jeopardize a species or adversely modify critical habitat.41
It is not clear what the additional language to the definition provides. The added
language reiterates that federal activities are not a factor in cumulative effects,
“cumulative effects do not include future Federal activities,” and refines the
definition only to state that the effects do not include federal activities “physically
located” within the action area.42 Since federal activities are already excluded, it is
not clear why it is necessary to say federal activities that are physically located near
the project are also excluded.
Amended Definition of Effects of the Action (§ 402.02). The concept
of cumulative effects is clearer when read together with the regulation addressing
effects of the action. While cumulative effects excludes federal actions, the effects
of the action requires Action Agencies and the Services to consider the “past and
present impacts” of federal actions and the “anticipated impacts of all proposed
federal projects in the action area” that have already undergone consultation.43 Note
that neither term requires consideration of future federal actions.
The Action Agencies and the Services must consider the “effects of an action”
during the consultation process. The regulations require the Action Agency to
discuss the effects of an action as part of its BA.44 The Service must include a
detailed discussion of the effects of an action in its BiOp.45
37 73 Fed. Reg. 47868, 47869 (August 15, 2008). NEPA does not use cumulative effects, but
instead uses cumulative impact, which is defined by the Council on Environmental Quality
as follows: “the impact on the environment which results from the incremental impact of the
action when added to other past, present, and reasonably foreseeable future actions
regardless of what agency (Federal or non-Federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor but collectively significant actions
taking place over a period of time.” 40 C.F.R. § 1508.7.
38 50 C.F.R. § 402.12(f)(4)
39 50 C.F.R. § 402.14(c)(4).
40 50 C.F.R. § 402.14(g)(3).
41 50 C.F.R. § 402.14(g)(4).
42 73 Fed. Reg. at 47874 (August 15, 2008).
43 50 C.F.R. § 402.02.
44 50 C.F.R. § 402.12(f)(4).
45 50 C.F.R. § 402.14(h)(2).

---

CRS-10
The proposed regulation modifies a term nested within the definition of effects
of an action, indirect effects. Indirect effects are included within the regulation in
response to a Fifth Circuit court case requiring the Action Agency to consider
indirect effects during consultation.46 When the regulation was being drafted in
1986, the Services refused to narrow the definition by not considering these effects,
stating “the Service declines to narrow the scope of its review (as requested by one
commenter) in light of existing case law.”47
The proposed regulations make two changes to the definition of indirect effects.
The Services state that these changes will “simplify the consultation process and
make it less burdensome and time-consuming.”48
The first change would require the proposed action to be an essential cause of
those indirect effects. Essential cause is explained in the Federal Register notice as
the action’s being necessary for that effect to occur.49 The proposed regulation
continues: “If an effect will occur whether or not the action takes place, the action is
not a cause of the direct or indirect effect.” This suggests that where multiple
stressors affect a species, an Action Agency would not have to consider what harm
it was doing to a species, if other harms were just as severe.
A similar interpretation of effects of the action has already been rejected by at
least one federal court. Specifically, the Ninth Circuit rejected an argument that an
agency action would not jeopardize a species because the species was in jeopardy
already: “even where baseline conditions already jeopardize a species, an agency may
not take action that deepens the jeopardy by causing additional harm.”50 Inclusion
of essential cause seems to commit the same error by saying that if a species is
already in jeopardy, an agency action that adds to that harm is not an essential part
of the effect of the action. This appears contradictory to the fundamental purpose of
the ESA: to conserve threatened and endangered species. The act does more than
require agencies to avoid jeopardizing listed species: they have an affirmative
responsibility to conserve species.51 According to the U.S. Supreme Court, federal
agencies have the obligation “to afford first priority to the declared national policy
of saving endangered species” (emphasis added).52
46 National Wildlife Federation v. Coleman, 529 F.2d 359, 373-74 (5th Cir. 1976) (the fact
that the Federal Highway Administration did not control private development that would
result following construction of its highway did not relieve the agency of its responsibility
under Section 7 of the ESA), cert. denied, 429 U.S. 979 (1976).
47 51 Fed. Reg. at 19932 (June 3, 1986).
48 73 Fed. Reg. at 47870 (August 15, 2008).
49 73 Fed. Reg. at 47870 (August 15, 2008).
50 National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 930 (9th
Cir. 2008).
51 16 U.S.C. § 1536(a)(1).
52 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).

---

CRS-11
The second change to indirect effects requires that “reasonably certain to occur”
must be based on “clear and substantial information.” This is appears to be a new
legal standard. It is not the standard of information used throughout the ESA statute
and regulations, which instead use “the best scientific and commercial data
available.”
When a Consultation Is Applicable (§ 402.03). Under current
regulations a Section 7 consultation is required for “all actions in which there is
discretionary Federal involvement or control.”53 The consultation requirement has
been interpreted to apply only to those actions that may affect a listed species or
critical habitat. At the time of its promulgation, the discussion about current Section
402.03 centered on what was meant by actions, and since then, the focus has been on
the term discretionary.54 The 2008 proposed regulations would change this section
significantly. The proposed changes add five ways in which an Action Agency could
decide that consultation did not apply in proposed subsection (b). This report will
discuss that subsection before discussing proposed subsection (c).
Proposed subsection (b) lists a number of criteria; if any one of the criteria is
met, no consultation is necessary. These criteria do not indicate what administrative
record will memorialize the decisionmaking used to determine whether they apply.
Presumably, these would be final agency actions, subject to review under the
Administrative Procedure Act (APA), but the proposed regulations provide scant
information on how the decisions will be made or recorded. Additionally, the Action
Agencies appear free to make these determinations without relying on any standard
— not the “best available scientific or commercial data available,” as is used
throughout the statute and regulations, nor “clear and substantial information,” the
new standard proposed in part of these changes. For all of the criteria in subsection
(b), no consultation is required “when the direct and indirect effects of that action are
not anticipated to result in take.”55 Those criteria are:
! The action has no effect on a listed species or critical habitat;56
! The action is an insignificant contributor to any effects on a listed
species or critical habitat;57
! The effects of an action on a listed species or critical habitat are not
capable of being meaningfully identified or detected in a manner that
permits evaluation;58
53 50 C.F.R. § 402.03.
54 See National Association of Home Builders, Inc. v. Defenders of Wildlife, 127 S. Ct. 2518
(2007) (holding that where a statute imposes strict guidelines on when a federal agency must
act, the ESA does not apply as an additional requirement because the action is not
discretionary).
55 proposed 50 C.F.R. § 402.03(b).
56 proposed 50 C.F.R. § 402.03(b)(1).
57 proposed 50 C.F.R. § 402.03(b)(2).
58 proposed 50 C.F.R. § 402.03(b)(3)(i).

---

CRS-12
! The effects of an action on a listed species or critical habitat are
wholly beneficial;59 or
! The effects of an action on a listed species or critical habitat have a
remote potential risk of jeopardy.60
Generally speaking, courts have not allowed regulations that eliminate the
Services’ role in ensuring that an agency action will not jeopardize a listed species
or adversely modify its critical habitat. In a case in which regulations had been
issued by the Services to allow the Environmental Protection Agency (EPA) to
decide whether to initiate consultation when licensing pesticides, a federal district
court found that the regulations amounted to the Services’ abdicating their role in
consulting to reach the jeopardy decision.61 The regulations in that case would have
allowed EPA to determine that its action was not likely to adversely affect (NLAA)
a species and end the Section 7 process there. The court found the regulation flawed:
“A unilaterally-made NLAA determination cannot be converted into a section 7(a)(2)
finding of “not likely to jeopardize” without “consultation” with the relevant
Service.”62
On the other hand, a different federal court found the regulations were not
contrary to the ESA because the Services still played an oversight role. In that case
the regulations allowed agency personnel to make NLAA determinations without a
concurrence decision by a Service. The court held that the additional procedures in
which the Services would monitor the program and train the personnel making the
determinations adequately served the Section 7 consultation mandates.63 The
program, the National Fire Plan, is discussed below.
Action Agencies are allowed to make unilateral decisions of when to consult.
However, these regulatory changes could be seen as giving more discretion to the
agencies and posing the risk of putting the jeopardy evaluation into the hands of the
Action Agency without input from the Services. As the statute makes clear, the
jeopardy decision is required to be a result of the consultation, and not precede it. On
the other hand, it is difficult to see the conservation purpose in requiring
consultations that have no effects on species or wholly beneficial ones. Ultimately,
however, it is the Action Agency that decides whether to consult, so any consultation
is due to initiation of the process by the Action Agency. The proposed changes
would provide a clearer regulatory justification for when they choose not to consult.
The Action Has No Effect on a Listed Species or Critical Habitat (§
402.03(b)(1)). The first subpart of (b) allows the Action Agency to decide that its
action has no effect on a listed species or designated critical habitat without any
consultation. This would have the practical effect of eliminating consultations where
59 proposed 50 C.F.R. § 402.03(b)(3)(ii).
60 proposed 50 C.F.R. § 402.03(b)(3)(iii).
61 Washington Toxics Coalition v. U.S. Department of the Interior, 457 F. Supp. 2d 1158
(W.D. Wash. 2006).
62 Washington Toxics Coalition, at 1179.
63 Defenders of Wildlife v. Kempthorne, 2006 wl 2844232 (D.D.C. September 29, 2006).

---

CRS-13
species will not be impacted, which seems consistent with the goal of the statute and
would likely promote efficiency.
There has always been a tension between the plain language of Section 7 and its
practical application. The opening sentence of Section 7(a)(2) requires that Action
Agencies shall ensure that any action is not likely to jeopardize protected species or
adversely affect their habitats. Logic dictates that not all actions — ordering office
supplies for example — require consultation. The statute requires an agency to
determine that its action will not commit the harm described with the “assistance of
the Secretary” and “in consultation with” the Secretary. However, the Consultation
Handbook of the Services provides that if an Action Agency determines that its
action will have no effect on a species, it does not need to initiate consultation.64
This is how the consultation process has worked. The proposed regulation would
give that practice regulatory authority. However, by allowing an Action Agency to
decide initially that its project will have no effect, the regulations read more like
NEPA, which requires agencies to act if a project would have significant impacts on
the environment. That may be a more realistic approach to consultations, but it is
arguably outside the Services’ authority to create regulations.

The Action is Wholly Beneficial (§ 402.03(b)(3)(ii)). This revision would
allow an Action Agency to decide consultation is not necessary if the action would
be wholly beneficial to the species. It would promote efficiency in the Section 7
process by eliminating steps in consultation. A similar provision is in the
Consultation Handbook, but there the decision is made only after production of a BA
or other similar document.65 The proposed regulation appears to eliminate the
Services’ oversight under a strict reading of the statute, but when taken in light of the
purposes of the statute, appears consistent with the ESA’s goals.
The Action Is an Insignificant Contributor (§ 402.03(b)(2)). This
factor, along with the remaining two factors, appears to address the Services’ intent
to separate climate change issues from the ESA. Under the proposal, consultation
is not required if the action is “an insignificant contributor to any effects on a listed
species or critical habitat.” With this in place, it would be difficult to argue, for
example, that a single Title V permit issued under the Clean Air Act was responsible
for the global warming that put endangered coral at risk. It is not certain if
nationwide permitting schemes would also be excused from consultation, however.
This may motivate Action Agencies to separate major projects into smaller pieces so
that the effects are minimized. No cumulative effects analysis would apply since this
decision would be made prior to initiation of consultation.
It is unclear how this determination fits with the definitions for cumulative
effects and effects of an action because it would occur before consultation even
started. An issue with this section is that it removes large portions of the review
process from consultation by having them occur before consultation is determined
to apply. It might be more consistent with the act to describe insignificant
64 FWS and NMFS, Final ESA Section 7 Consultation Handbook, pp. 3-12 (March 1998)
(hereinafter Consultation Handbook).
65 Consultation Handbook, pp. 3-12.

---

CRS-14
contributor in the context of the other effects definitions to be used at the time a
consultation, informal or formal, is underway.
The Effects Are Not Capable of Being Meaningfully Identified or
Detected (§ 402.03(b)(3)(i)). This amendment also appears intended to limit
climate change challenges based on the ESA by requiring an identifiable link
between the agency’s action and the specific harm. No consultation is required if the
effects of the action “are not capable of being meaningfully identified or detected in
a manner that permits evaluation.” This evaluation is made by the Action Agency
before the consultation process starts, and it is not clear what scientific standards will
be used to make this determination. Because Section 402.03(b) clearly addresses
both direct and indirect effects, it may be presumed that the reference to effects
means both. This suggests that the Action Agency would perform some form of an
effects analysis prior to deciding whether a consultation is required.
The Effects of an Action Have a Remote Potential Risk of Jeopardy
(§ 402.03(b)(3)(iii)). This final part of subsection (b) allows an Action Agency not
to consult if it determines that the effects “are such that potential risk of jeopardy to
the listed species or adverse modification or destruction of the critical habitat is
remote.” It suggests that an Action Agency has the authority to make its own
jeopardy decision. To the extent that is true, it is arguably contrary to ESA § 7(a),
which requires the determination to be made in consultation with and with the
assistance of the Services. To the extent that this is considered another way for the
agency to predetermine effects prior to initiating consultation, it has the same
procedural and administrative difficulties described above. The Services indicated
that this change is also intended to limit consultations for projects with GHG
emissions.66
Consultation for Only Some Effects of an Action (§ 402.03(c)). The
above factors from subsection (b) are linked by an “or”, suggesting that any one of
them could be the basis for not initiating consultation. Proposed subsection (c)
discusses what happens if some of the subsection (b) criteria apply and some do not:
If all of the effects of an action fall within paragraph (b) of this section, then no
consultation is required for the action. If one or more but not all of the effects of
an action fall within paragraph (b) of this section, then consultation is required
only for those effects of the action that do not fall within paragraph (b).
This suggests that Action Agencies may be performing a complicated effects
analysis before the consultation is even deemed necessary. As mentioned above,
effects as used in this regulation appears to include both direct and indirect effects.
The proposed regulation provides no guidelines on the Action Agency’s analysis in
that context, leaving open questions such as whether the effects would be divided
based on the type of effect or the portion of the project. Based on the plain meaning,
it seems subsection (c) would allow agencies to segment their projects and initiate
consultation only for those parts that may have an effect that is significant,
identifiable, and poses more than a remote risk of jeopardy. Because these
66 73 Fed. Reg. at 47872.

---

CRS-15
determinations appear to be made without the consultation or assistance of the
Services, they are arguably contrary to the ESA.
The case of an agency action where only a portion of a project was advanced to
consultation illustrates an internal inconsistency within the proposed regulations.
The proposed changes to Section 402.13 — informal consultations — require the
Action Agency to consider “the effects of the action as a whole.” Therefore, whatever
sections of the action that were not advanced to consultation could be considered
during the consultation anyway.
Informal Consultation (§ 402.13). The 1986 regulations distinguished
between informal consultations and formal consultations. The informal consultation
regulation was a procedural rule, designed to provide a more efficient way of
evaluating ESA effects by stopping the consultation process for projects that “upon
further informal review, are found not likely to adversely affect a listed species or
critical habitat.”67 The Service is required to concur with the Action Agency’s
determination of “not likely to adversely affect” in writing. The revisions make
procedural changes and substantive additions to the informal consultation process.
The first change modifies the scope of what would be reviewed in the informal
consultation. The current regulations state, “If during informal consultation it is
determined by the Federal agency ... that the action is not likely to adversely affect
listed species or critical habitat, the consultation process is terminated, and no further
action is necessary.”68 The proposed regulation would increase the scope beyond the
agency action to include other relevant projects. It reads: “If during informal
consultation it is determined by the Federal agency that the action, or a number of
similar actions, an agency program, or a segment of a comprehensive plan is not
likely to adversely affect listed species...” This appears to allow one informal
consultation for related projects, which could promote efficiency by allowing one
review and one concurrence by the Service. Determining when actions are in fact
“similar,” however, could be controversial.
It is also not clear whether the Action Agency would determine unilaterally
whether consultation would occur on one action or similar actions, or whether that
decision requires the written concurrence of the Service. It appears that the
concurrence refers to the “not likely to adversely affect” determination, as that is how
it works in the current regulations. However, it is ambiguous in the proposed
regulations.
Another significant issue is whether considering only a “segment of a
comprehensive plan” could obscure the true agency action and thwart consideration
of the adverse effects that may result from it. The Ninth Circuit rejected an attempt
67 51 Fed. Reg. at 19948 (June 3, 1986).
68 50 C.F.R. § 402.13(a).

---

CRS-16
to isolate a portion of a project when considering whether the action would be likely
to jeopardize a species.69

A second addition to the current regulatory language would alter the substance
of the informal consultation review. That proposed addition states: “For all requests
for informal consultation, the Federal agency shall consider the effects of the action
as a whole, including the effects on all listed species and critical habitats.”70 As
discussed earlier, effects of the action appears in the context of an Action Agency’s
BA as well as in formal consultations. This would add that evaluation to informal
consultations as well. This appears to add to the burden of informal consultations
without necessarily offering relief from the formal consultation process.
The proposed regulation appears to create a new document for informal
consultations: a request. It is not clear what the request is, as neither the current nor
proposed regulations have a formal requirement for a request. Currently, according
to the Consultation Handbook, informal consultation could consist of a phone call.
It is not clear if by considering effects, the Action Agencies will be documenting
effects of the action in the request or in some other agency record to support the basis
for the request.
The informal consultation process would be revised by adding a deadline for the
Service to provide a written response with the Action Agency’s determination of not
likely to adversely affect. If a Service has not responded within 60 days of the Action
Agency’s notification of its NLAA determination, the consultation may be terminated
“without the Service’s concurrence.”71 While this may spur efficiency by forcing a
response from the Service, it also could violate the statute’s purpose of the Service
and the Action Agency determining a project’s potential harms using the best
scientific and commercial data available. As pointed out in the GAO report, staffing
is a problem for the Services.72 The time limit could allow projects that may pose
jeopardy to move forward due to default.
As mentioned above, the current regulations do not require a request for
informal consultation — a series of phone calls could start the process — making this
deadline difficult to calculate. A request may need to be defined and its contents
explained. When taken with the requirement that the Action Agency must consider
the effects of an action, these changes escalate the informal consultation process,
making it more like a formal one.
Formal Consultation (§ 402.14). The only proposed change to the formal
consultation process is a link to the deadline imposed by the informal consultation.
69 National Wildlife Federation v. National Marine Fisheries Services, 524 F.3d 917, 933
(9th Cir. 2008) (holding that NMFS incorrectly considered only the discretionary actions of
a project by isolating the non-discretionary ones in its BiOp).
70 proposed 50 C.F.R. § 402.13(a).
71 proposed 50 C.F.R. § 402.13(b). This deadline can be extended by an additional 60 days.
72 GAO, ESA: More Federal Management Attention Is Needed to Improve the Consultation
Process, GAO-04-93, p. 4 (March 2004).

---

CRS-17
The proposed regulation reads that formal consultation is not required under two
circumstances: 1) if the Service agrees in writing that the action is not likely to
adversely affect a listed species; or 2) if informal consultation is terminated without
a written concurrence from the Service.73
Policy Implications of the Proposed Regulatory Changes
Implementing the Rules: Effects on Agency Practice. As discussed
above, the current regulations establish that when an Action Agency is planning to
undertake an action that it decides may affect a listed species, it begins a
consultation, either formal or informal. The result at ground level is an on-going
conversation between the Action Agency and the Service biologists.74 A few phone
calls may suffice to reassure the Action Agency that there are no listed species in the
area, or if there are, that they will not be affected. FWS or NMFS may ask for
relatively minor amounts of additional written documentation and then conclude (still
fairly quickly) that neither jeopardy to the species nor adverse modification of its
habitat will occur. Alternatively, the Services may conclude that more information
is needed and ask the agency to carry out a BA for formal consultation. This process
may proceed in days or weeks.75 There is no deadline for the Service to respond to
a request for concurrence in the current regulations.
ESA § 7(b)(1)(A) requires the Services to respond to a consultation initiation
within 90 days or on a mutually agreed upon date. The Services mark initiation of the
consultation from when the Service receives a complete BA, i.e., one that has
sufficient information to assess the effects of the proposed action. For those agencies
that consult regularly (e.g., Forest Service, Bureau of Land Management,
Environmental Protection Agency), consultation is a well-trodden path. But for
others, consultation may be an extremely rare event and difficult for the Action
Agency to manage.
Repeated requests for additional data have lead to great frustration among
Action Agencies and the non-federal parties relying on them for permits, loans, sales,
licenses, etc. The agencies and non-federal partners may see the consultation as
needless delay (of weeks, months, or even a year or more), even if the result is
ultimately a “no jeopardy” BiOp (i.e., one that finds that the agency action will not
jeopardize the species nor adversely modify designated critical habitat). While the
proposed rules are intended to address a variety of issues, imposing deadlines or
speeding up a response from the Services is a key part, even though the interval from
when the Service receives a complete BA from the Action Agency and it issues a
BiOp may be only a few weeks.76
73 proposed 50 C.F.R. § 402.14(b).
74 For a detailed discussion of consultation practices, see Consultation Handbook, cited
above.
75 The authors are not aware of any comprehensive studies examining the duration of typical
formal and informal consultations.
76 For examples of complex, but relatively rapid consultations, see CRS Report RL34440,
(continued...)

---

CRS-18
Revisions to § 402.02 and § 402.03(b): More Consultations or
Fewer? In FY2006, FWS carried out 65,519 informal consultations, and of these,
31,874 were handled informally, with phone calls, emails, teleconferences, etc. The
remainder, 33,645, resulted in written opinions, and of these about 1,800 were formal
consultations.77 It is not clear that the proposed regulations would reduce the number
of consultations. As explained above, the effect of the proposed changes to § 402.02
and § 402.03(b) (regarding effects of an action and when consultations apply) could
influence Action Agencies to break down their activities into smaller units
(individual units of timber sales, individual windmills in a wind farm, short stretches
of beach erosion projects, etc.). In theory, more projects could mean more
consultations. However, the proposal would add a requirement that consultation is
required only if the project “is not anticipated to result in take” and five more criteria
that an Action Agency could use to decide that the consultation requirements do not
apply.
Take as a New Consideration in Consultation (§ 402.03(b)). The
addition of take as a criterion for when a consultation is required (as found in Section
402.03(b)) is a significant change. The current standards for consultation turn on
questions of jeopardizing the continued existence of a listed species and/or
modification of its critical habitat. Consideration of habitat modification and
jeopardy involves reviewing effects that could be at a species or landscape level, and
that apply equally to plants and animals. A review of take, on the other hand, focuses
on effects on individual organisms; the result could be that projects that are highly
unlikely to result in killing an animal, but might have more marginal effects (small
decrease in the number of eggs laid, lower availability of spawning, habitat, etc.)
might escape the need for consultation, even if the long-term effects of the action
might eventually result in jeopardy. Moreover, if the listed organism is a plant, take
is not defined as a prohibited act under Section 9(a)(2) of ESA. Thus, when the only
listed species at risk is a plant, or when listed plants and animals are both at risk from
a federal action, those actions that may effect plants will be excluded from
consultation. The take requirement might serve to reduce the number of
consultations.
More Criteria to Reduce Consultation (§ 402.03(b)(1-3)). The
additional criteria also seem targeted at the stated goal of eliminating unnecessary
consultations. If projects are broken into smaller components, individual actions may
be more likely to meet these criteria because each action may be “an insignificant
contributor to any effects on a listed species or critical habitat” or “incapable of being
meaningfully identified or detected in a manner that permits evaluation.”78 To the
extent that Action Agencies opt to slice their actions into smaller units to fit the
76 (...continued)
Apalachicola-Chattahoochee-Flint Drought: Species and Ecosystem Management, by M.
Lynne Corn, Kristina Alexander, and Eugene H. Buck.
77 U.S. Dept. of the Interior, Fish and Wildlife Service. Budget Justification, FY2009. p.
ES-20; and personal communication between author (MLC) and FWS Endangered Species
Office, Sept. 9, 2008.
78 proposed 50 C.F.R. § 402.03(b).

---

CRS-19
criteria for when consultation did not apply, there could be a substantial reduction in
the number of consultations, whether formal or informal.

Revisions to § 402.13 and § 402.14: A New Default for Ending
Consultation? Currently, when an Action Agency consults with either Service
informally, and they both conclude that no harm will come to listed species or their
critical habitats, the informal consultation ends.79 If the consultation becomes formal,
and the Action Agency receives a BiOp, the Action Agency may also receive an
Incidental Take Statement (ITS) from the Service if a prohibited take may occur. A
BiOp may specify reasonable and prudent alternatives (RPAs) that are needed to
avoid jeopardy. If incidental taking may occur, the ITS will also include any
reasonable and prudent measures that are necessary to comply with the ITS. If the
Action Agency then proceeds with that action as described, past case law suggests
that parties that sue the Action Agency alleging violation of the Act are unlikely to
succeed in court.80
Current practice for complying with ESA’s consultation requirements therefore
involves an exchange of information between the Services and the Action Agency.
Some Service biologists might argue that they can consult rapidly once information
is complete, but that initial submissions may not be adequate for consultation. At the
same time, Action Agencies might argue that the requests for more information might
seem endless, and note that few deadlines are imposed on the Services.
Informal Consultation (§ 402.13). The proposed regulations would
represent a significant departure from current practice. Under the proposed changes
to informal consultations, it is implied that the Action Agency must make a request
for informal consultation.81 The same proposed section adds a new requirement that
the Action Agency must “consider the effects of the action as a whole, including the
effects on all listed species and critical habitats.”
The proposed regulation clarifies that informal consultation would end no later
than 120 days after the Action Agency requests it, regardless of whether the Service
considers the submitted information to be adequate for consultation. In combination
with the change in formal consultation proposed in the new Section 402.14
(described below), the effect may substantially lighten the burden on Action
Agencies.
Overall, the potential effects of the proposed changes include blurring the
distinction between informal and formal consultation. Both would (presumably)
begin with written requests, both would involve analyses of effects of the action, and
79 50 C.F.R. § 402.13.
80 See, e.g., City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006); Aluminum Co. of
America v. Bonneville Power Admin., 175 F.3d 1156 (9th Cir. 1999); Miccosukee Tribe
of Indians of Florida v. U.S., 528 F. Supp. 2d 1317 (S.D. Fla. 2007).
81 proposed 50 C.F.R. 402.13(a).

---

CRS-20
both would have time limits for completion.82 Informal consultation could become
more formalized. Also, Action Agencies could be relieved from official formal
consultations in the case of a default by the Services regardless of the impact of their
projects.
Formal Consultation (§ 402.14). The proposed rule would leave most of
the formal consultation procedures intact, with one substantial exception. If informal
consultation has terminated because the Service did not respond in the time allotted,
then the Action Agency would not need to initiate formal consultation, regardless of
the impacts on listed species or critical habitats.
The processes proposed for informal and formal consultation raise a number of
questions. The proposed regulations might create a perverse incentive to provide
inadequate information, because an agency would have a new option of submitting
incomplete data, in hopes that an already overburdened Service would miss its
deadline and the project could proceed. (This would involve the Action Agency’s
contributing to jeopardy, and assuming the risk of taking a species without an ITS
excusing the take.) If the Services must judge whether a project may affect a species
or critical habitat in a very limited time, would the Services issue fewer concurrences
and require more projects to advance to formal consultation? If so, rather than
decreasing the Services’ responsibilities, the proposed changes might increase the
work loads.
Amended Definition of Effects of the Action (§ 402.02): Indirect
Effects and Essential Causes. Species become threatened, endangered, or
extinct for a variety of reasons. Habitat loss or degradation is the most commonly
cited cause, but is rarely the sole cause. Moreover, habitat may be lost in
combination with many threats: both foraging habitat and competition from invasive
species (e.g., spotted owls); both foraging habitat and bioaccumulation of toxins
(e.g., polar bears); and both excessive incidental take and loss of nesting habitat (e.g.,
sea turtles). In these three examples, any one of the pairs of threats, if left
uncontrolled, might be sufficient to jeopardize the continued existence of the species,
and ultimately lead to its extinction. Would an agency action that exacerbates just
one threat and not another be eliminated from both the BA and the BiOp
considerations of the effects of the action? The proposed changes appear to permit
this outcome.
Specifically, the proposed rule states that if the agency action has “an effect
[that] will occur whether or not the action takes place, the action is not a cause of the
direct or indirect effect.”83 In practice, it may be extremely difficult for the Services
to determine whether an effect will occur regardless of an agency action. The
proposed change to the definition of effects of the action might take some actions and
their effects off the consultation table when a species faces multiple severe threats as
the following examples illustrate: Is a lower basin of a watershed going to receive
82 Under current regulations, the deadline for formal consultation on projects that do not
involve an applicant (for a license, permit, etc.) may be extended by mutual consent of the
Action Agency and the Service (§ 402.14(f)).
83 proposed 50 C.F.R. § 402.02.

---

CRS-21
less water for endangered fish because of an upstream dam — or also because of
increasing frequency of drought? Will mountaintop species suffer population
reductions due to global warming, and therefore the effects of upwind powerplants
can be ignored?
Effects on Consultation Results
Two case studies of how the proposed regulations may affect agency practice
are included as appendices at the end of this report.
Climate Change and the Proposed Regulations
In the notice of the proposed rule, the Services stated that there is no
requirement to consult on greenhouse gas (GHG) emissions’ contribution to global
warming.84 Some of the revisions to the consultation regulations appear targeted at
separating projects that may affect climate change from the consultation process.
Before discussing climate change in this context, it should be noted that the
consultation process is to consider the effects of agency actions on listed species and
their habitats — not the effects of climate change on listed species. There are few
agency actions that directly emit GHGs. Most result in permits or licenses for others
to produce the gases. Therefore, arguably, agency actions would have only indirect
effects on producing GHGs, which then could affect climate change. The Services
have argued that the lack of causation is the reason actions authorizing GHG
emissions do not require consultation:
There is currently no way to determine how the emissions from a specific project
under consultation both influence climate change and then subsequently affect
specific listed species or critical habitat, including polar bears. As we now
understand them, the best scientific data currently available does not draw a
causal connection between GHG emissions resulting from a specific Federal
action and effects on listed species or critical habitat by climate change, nor are
there sufficient data to establish the required causal connection to the level of
reasonable certainty between an action’s resulting emissions and effect on
species or critical habitat.85

The Services point to many changes within the proposed regulations to advance
its position that an ESA consultation is not intended to consider the effects of GHG
emissions. The Service gives these rationales for why, in their view, GHG emissions
from a project would not be part of consultation:
! impacts associated with global warming do not constitute “effects of
the action” because they are not an essential cause of the effects
(proposed § 402.02);
! GHG emissions may be an “insignificant contributor” to any adverse
impacts (proposed § 402.03(b)(2));
84 73 Fed. Reg. at 47872.
85 73 Fed. Reg. 28305, 28313 (May 15, 2008) (special rules for polar bears).

---

CRS-22
! GHG emissions may not be “capable of being meaningfully
identified or detected in a manner that permits evaluation” (proposed
§ 402.03(b)(3)(i)); and
! the potential risk of jeopardy to the listed species or adverse
modification or destruction of the critical habitat from those GHG
emissions is remote (proposed § 402.03(b)(3)(iii).86
Most scientists agree that countless sources of GHG emissions are driving
climate change. GHG emissions from a particular or narrowly defined agency action,
however, may not be considered an essential cause of climate change effects on a
species. Under the proposed regulations, an agency action must be an essential cause
of an effect on a species for it to be considered in the consultation process. The
Services described essential cause as meaning “the effect would not occur ‘but for’
the action under consultation .... there must be a close causal connection between the
action under consultation and the effect that is being evaluated.”87 The causal link
to affect a species is arguably quite tenuous: GHG emissions must first affect climate
change, which then must affect an ecosystem, which then must affect a species.
The remaining three changes in the proposed rule influence how the Action
Agency decides whether consultation applies to an action. The proposed rule
provides that if a federal action is an “insignificant contributor” to effects on listed
species on their critical habitat, the Action Agency may avoid consultation. Here, in
the context of GHGs, the aggregation of actions could be key. A single power plant
may have an insignificant impact on climate change as a whole or the altered critical
habitat of a species in particular, but an agency action that consists of a permitting
process involving hundreds of GHG sources may be significant.
Projects leading to GHG emissions may not require consultation if the effects
of the action cannot be meaningfully identified or detected “in a manner that permits
evaluation.” It is not clear what might constitute an evaluation. For example, there
may be enough data to determine whether an effect will be positive or negative, but
not the magnitude of the effect. The standard for this evaluation may be the best
available scientific information, in which case such an evaluation may suffice.
The fourth change to the current regulations that the Services have indicated will
affect consultations on projects with GHG emissions, is that the effects of the action
must be such that the “potential risk of jeopardy to the listed species or adverse
modification or destruction of the critical habitat is remote.” In this instance,
“remote” appears to mean “unlikely,” rather than “separated by a great distance.”
The complexities of global climate modeling make such an assessment on an
individual project extremely problematic.
In the context of GHG emissions and global climate change, the question of
aggregation of actions upon which to consult appears to be pivotal. The proposed
regulations would allow agencies to consider not just an agency action but “a number
86 73 Fed. Reg. at 47872.
87 73 Fed. Reg. at 47870.

---

CRS-23
of similar actions, an agency program, or a segment of a comprehensive plan.”88 This
seems targeted toward efficiency, but consolidated agency actions could have a much
bigger impact than would be measurable for an individual action, and arguably
constitute an essential cause of an indirect harm. However, it is not clear from the
proposal whether the decision of whether to submit just one action or a combined
program for review is at the discretion of the Action Agency or requires the
concurrence of the Service.
Proponents of the proposed changes contend that GHG emissions from most
agency actions do not have a causal effect on species, and that the ESA should not
be used to regulate GHG emissions. Others argue that climate change has an impact
on species and should be considered under ESA consultations, though the number of
federal agency actions with the potential to affect climate change may be so large as
to overwhelm the understaffed Services.89 At least one federal court required the
Services to consider climate change as part of a Section 7 consultation.90
88 proposed 50 C.F.R. § 402.13.
89 John Kostyack and Dan Rohlf, Conserving Endangered Species in an Era of Global
Warming, 38 ELR 10203 (April 2008).
90 Natural Resources Defense Council v. Kempthorne, 506 F. Supp. 2d 322, 369 (E.D. Cal.
2007).

---

CRS-24
Table 1. Comparison of Current Regulations
to Proposed Regulations
(Proposed deletions from the current regulations are marked by brackets and written in italics.
Proposed additions to the regulations are in bold type.)
Current Version of Title 50 C.F.R.
Proposed Version
402.02 - Definition of Biological Assessment
Biological assessment refers to the
Biological assessment refers to the
information prepared by or under the
information prepared by or under the
direction of the Federal agency
direction of the Federal agency
concerning listed and proposed species
concerning listed and proposed species
and designated and proposed critical
and designated and proposed critical
habitat that may be present in the action
habitat that may be present in the action
area and the evaluation of potential
area and the evaluation of potential
effects of the action on such species and
effects of the action on such species and
habitat.
habitat. A biological assessment may be
a document prepared for the sole
purpose of interagency consultation, or
it may be a document or documents
prepared for other purposes (e.g., an
environmental assessment or
environmental impact statement)
containing the information required to
initiate the consultation.
402.02 - Definition of Cumulative Effects
Cumulative effects are those effects of
Cumulative effects are those effects of
future State or private activities, not
future State or private activities, not
involving Federal activities, that are
involving Federal activities, that are
reasonably
reasonably
certain to occur within the action area of
certain to occur within the action area of
the Federal action subject to consultation.
the Federal action subject to consultation.
Cumulative effects do not include
future Federal activities that are
physically located within the action
area of the particular Federal action
under consultation.

---

CRS-25
Current Version of Title 50 C.F.R.
Proposed Version
402.02 - Definition of Effects of the Action
Effects of the action refers to the direct
Effects of the action refers to the direct
and indirect effects of an action on the
and indirect effects of an action on the
species or critical habitat, together with
species or critical habitat, together with
the effects of other activities that are
the effects of other activities that are
interrelated or interdependent with that
interrelated or interdependent with that
action, that will be added to the
action, that will be added to the
environmental baseline. The
environmental baseline. The
environmental baseline includes the past
environmental baseline includes the past
and present impacts of all Federal, State,
and present impacts of all Federal, State,
or private actions and other human
or private actions and other human
activities in the action area, the
activities in the action area, the
anticipated impacts of all proposed
anticipated impacts of all proposed
Federal projects in the action area that
Federal projects in the action area that
have already undergone formal or early
have already undergone formal or early
section 7 consultation, and the impact of
section 7 consultation, and the impact of
State or private actions which are
State or private actions which are
contemporaneous with the consultation in
contemporaneous with the consultation in
process. Indirect effects are those that are
process. Indirect effects are those for
caused by the proposed action and are
which the proposed action is an
later in time, but
essential cause, and that are later in
still are reasonably certain to occur.
time, but still are reasonably certain to
Interrelated actions are those that are part
occur. If an effect will occur whether or
of a larger action and depend on the
not the action takes place, the action is
larger action for their justification.
not a cause of the direct or indirect
Interdependent actions are those that have
effect. Reasonably certain to occur is
no independent utility apart from the
the standard used to determine the
action under consideration.
requisite confidence that an effect will
happen. A conclusion that an effect is
reasonably certain to occur must be
based on clear and substantial
information. Interrelated actions are
those that are part of a larger action and
depend on the larger action for their
justification. Interdependent actions are
those that have no independent utility
apart from the action under consideration.

---

CRS-26
Current Version of Title 50 C.F.R.
Proposed Version
402.03 - Applicability
Section 7 and the requirements of this
(a) Section 7 and the requirements of this
part apply to all actions in which there is
part apply to all actions in
discretionary Federal involvement or
which there is discretionary Federal
control.
involvement or control.
(b) Federal agencies are not required
to consult on an action when the direct
and indirect effects of that action are
not anticipated to result in take and:
(1) Such action has no effect on a listed
species or critical habitat; or
(2) Such action is an insignificant
contributor to any effects on a listed
species or critical habitat; or
(3) The effects of such action on a
listed species or critical habitat:
(i) Are not capable of being
meaningfully identified or detected in a
manner that permits evaluation;
(ii) Are wholly beneficial; or
(iii) Are such that potential risk of
jeopardy to the listed species or
adverse modification or destruction of
the critical habitat is remote.
(c) If all of the effects of an action fall
within paragraph (b) of this section,
then no consultation is required for the
action. If one or more but not all of
the effects of an action fall within
paragraph (b) of this section, then
consultation is required only for those
effects of the action that do not fall
within paragraph (b).

---

CRS-27
Current Version of Title 50 C.F.R.
Proposed Version
402.13 - Informal Consultation
(a) Informal consultation is an optional
(a) Informal consultation is an optional
process that includes all discussions,
process that includes all discussions,
correspondence, etc., between the Service
correspondence, etc., between the Service
and the Federal agency or the designated
and the Federal agency or the designated
non-Federal representative, designed to
non-Federal representative, designed to
assist
assist
the Federal agency in determining
the Federal agency in determining
whether formal consultation or a
whether formal consultation or a
conference is required. If during informal
conference is required. If during informal
consultation it is determined by the
consultation it is determined by the
Federal agency, with the written
Federal agency, [with the written
concurrence of the Service, that
concurrence of the Service,] that
the action is not likely to adversely affect
the action, or a number of similar
listed species or critical habitat, the
actions, an agency program, or a
consultation process is terminated, and no
segment of a comprehensive plan, is
further action is necessary.
not likely to adversely affect listed
(b) During informal consultation, the
species or critical habitat, the
Service may suggest modifications to the
consultation process is terminated, and no
action that the Federal agency and any
further action is necessary if the Service
applicant could implement to avoid the
concurs in writing. For all requests for
likelihood of adverse effects to listed
informal consultation, the Federal
species or critical habitat.
agency shall consider the effects of the
action as a whole, including the effects
on all listed species and critical
habitats.
(b) If the Service has not provided a
written determination regarding
whether it concurs with a Federal
agency’s determination provided for in
paragraph (a) of this section within 60
days following the date of the Federal
agency’s request for such
determination, the Federal agency
may, upon written notice to the
Service, terminate consultation without
the Service’s concurrence. The Service
may, upon written notice to the
Federal agency within the 60-day
period, extend the time for informal
consultation for a period no greater
than an additional 60 days from the
end of the 60-day period.
(c) During informal consultation, the
Service may suggest modifications to the
action that the Federal agency and any
applicant could implement to avoid the
likelihood of adverse effects to listed
species or critical habitat.

---

CRS-28
Current Version of Title 50 C.F.R.
Proposed Version
402.14 Formal Consultation
(a) Requirement for formal consultation.
(a) Requirement for formal consultation.
Each Federal agency shall review its
Each Federal agency shall review its
actions at the earliest possible time to
actions at the earliest possible time to
determine whether any action may affect
determine whether any action may affect
listed species or critical habitat. If such a
listed species or critical habitat. If such a
determination is made, formal
determination is made, formal
consultation is required, except as noted
consultation is required, except as noted
in paragraph (b) of this section. The
in paragraph (b) of this section. The
Director may request a Federal agency to
Director may request a Federal agency to
enter into consultation if he identifies any
enter into consultation if he identifies any
action of that agency that may affect
action of that agency that may affect
listed species or critical habitat and for
listed species or critical habitat and for
which there has been no consultation.
which there has been no consultation.
When such a request is made, the
When such a request is made, the
Director shall forward to the Federal
Director shall forward to the Federal
agency a written explanation of the basis
agency a written explanation of the basis
for the request.
for the request.
(b) Exceptions. (1) A Federal agency
(b) Exceptions. (1) A Federal agency
need not initiate formal consultation if, as
need not initiate formal consultation if, as
a result of the preparation of a biological
a result of the preparation of a biological
assessment under Sec. 402.12 or as a
assessment under Sec. 402.12 or as a
result of informal consultation with the
result of informal consultation with the
Service under Sec. 402.13, the Federal
Service under Sec. 402.13, the Federal
agency determines, with the written
agency determines [with the written
concurrence of the Director, that the
concurrence of the Director], that the
proposed action is not likely to adversely
proposed action is not likely to adversely
affect any listed species or critical
affect any listed species or critical
habitat.
habitat, and the Director concurs in
writing or informal consultation has
{sections (c) - (k) omitted}
terminated under 402.13(b) without a
written determination by the Service
as to whether it concurs; {sections (c)-
(k) unmodified}

---

CRS-29
Appendix A. Internal Consultation: The National Fire Plan
(NFP) of the Healthy Forests Initiative
The National Fire Plan, part of the Healthy Forests Initiative, is administered
primarily by the Bureau of Land Management (BLM) and the Forest Service (FS).91
Joint regulations were issued in 2003 to address the effects of increasing levels of
wildfires on listed species. Among other things, those regulations turn consultation
into a process that occurs wholly within BLM or FS, without concurrence by a
Service, when the Action Agency finds its project is not likely to adversely affect a
listed species.92 These regulations were issued under the provision for counterpart
regulations,93 which some have suggested could be used as an alternative to the
regulatory changes proposed.
In some respects, proposed Sections 402.03(b) and 402.03(c) resemble the
internal consultations that were created under the NFP. A review of the delegation
of some ESA consultation responsibilities to the NFP agencies may illuminate
possible results for similar delegations apparently envisioned in the proposed
regulations.
In January 2008, the Services, FS, and BLM issued a joint report on the NFP in
its first full year of experience with these counterpart regulations (FY2004).94 The
Services reviewed whether the two Action Agencies met the various ESA
requirements in their preparation of BAs. FS and BLM documents for their internal
review were required to do the following:
! describe the federal action clearly;
! describe the action’s direct and indirect environmental effects;
91 The National Fire Plan (NFP) started as a response by the Clinton Administration to the
severe fire season of 2000. It was primarily a request for supplemental appropriations for
wildfire suppression and additional wildfire fuel reduction, and was largely enacted in the
2001 Interior appropriations act. Congress has provided funds at much higher levels since
then. Following the 2002 fire season, the Bush Administration proposed the Healthy Forests
Initiative to expand the NFP. Portions of the Initiative were enacted in the Healthy Forests
Restoration Act (P.L. 108-148). Other portions to expedite fuel reduction efforts were
effected through regulatory changes, one of which was the ESA counterpart regulations
examined in this appendix. For more information and analysis on the NFP and the Healthy
Forests Initiative, see CRS Report RL33792, Federal Lands Managed by the Bureau of
Land Management (BLM) and the Forest Service (FS): Issues for the 110th Congress, by
Ross W. Gorte, Carol Hardy Vincent, Marc Humphries, and Kristina Alexander.
92 50 C.F.R. § 402.31. See Defenders of Wildlife v. Kempthorne, 2006 wl 2844232 (D.D.C.
September 29, 2006) (upholding the regulations because of the role played by the Services).
93 The other counterpart regulation issued, for EPA pesticide licensing, was ruled as
violating the ESA. Washington Toxics Coalition v. EPA, 457 F. Supp. 2d 1148 (W.D.
Wash. 2006).
94 NMFS, FWS, FS, and BLM, Use of the ESA Section 7 Counterpart Regulations for
Projects that Support the National Fire Plan: Program Review: Year One (January 11,
2008) (hereinafter ESA/NFP Review). Available online at [http://www.nmfs.noaa.gov/pr/
pdfs/laws/fireplanreview.pdf].

---

CRS-30
! describe the specific area that may be affected by the action;
! identify the listed species and the designated critical habitat that
may be affected;
! compare the list of species and the potential effects to determine if
exposure is likely, and if so, whether any exposure is likely to be
beneficial, insignificant, or discountable; and
! use the best available scientific and commercial data.95
NMFS and FWS constructed separate analyses of the results. Table 2 is the
summary of the 10 projects involving species under NMFS management; Tables 3
and 4 summarize the 50 projects with FWS species. The NMFS review concluded
that there were deficiencies in all 10 project assessments in five of the six criteria for
evaluation, including the use of the best available scientific information.96
Table 2. Number of Projects Reviewed by NMFS that Did Not
Meet Specified Criteria
(FS: 9 projects; BLM: 1 project)
Product/Criterion
Yes
No
Procedural Checklist was submitted with BA
9
1
1
Identifies proposed actions clearly (includes a description of
10
various components of the action)
2
Identifies spatial and temporal patterns of the action’s direct and
indirect environmental effects, including direct and indirect
10
effects of interrelated and interdependent actions
3
Identifies Action Area clearly (based on information in 2)
10
4
Identifies all threatened and endangered species and any
designated critical habitat that may be exposed to the proposed
action (includes a description of spatial, temporal, biological
characteristics and constituent habitat elements appropriate to the
10
project assessment)
5
Compares the distribution of potential effects (identified in 2)
with the Threatened and endangered species and designated
critical habitat (identified in 4) and establishes, using the best
10
scientific and commercial data available that (a) exposure is
improbably or (b) if exposure is likely, responses are
insignificant, discountable, or wholly beneficial
6
Determination is based on best available scientific and
10
commercial information
Source: ESA/NFP Review, p. 12.
95 ESA/NFP Review, p. 2.
96 NMFS found that both Action Agencies succeeded in the sixth criterion: summarizing
their own actions clearly.

---

CRS-31
FWS analyzed 50 projects.97 (See Tables 3 and 4.) Of the 43 FS project BAs,
18 met all of the review criteria, and 25 missed one or more. Six of the 25 (roughly
15% of the total projects) met none of the evaluation criteria. Of the seven BLM
project BAs, one met all of the criteria, and six missed at least one. Of the six, there
were two BAs that met none of the criteria. Overall, 31 of the 53 project BAs (66%)
were deficient in at least one respect; 4% were deficient in all criteria. The two
Action Agencies approved recommended measures to improve their BAs; those
measures involved oversight and further training of personnel by the Action
Agencies.98
Table 3. Number of Projects Reviewed by FWS
that Did Not Meet Specified Criteria
(Forest Service: 43 projects; BLM: 7 projects)
Criterion from Evaluation Form
(Appendix 3 of Alternative Consultation
Agreement)
Forest Service
BLM
1
Identified proposed action
8
5
2
Identified Direct/Indirect/ Interrelated/
12
6
Interdependent actions
3
Identified Action Area
16
4
4
Identified all T&E Species and/or Critical Habitat
10
3
5
Determined likelihood of exposure to effects
16
4
6
Determination was based on best available data
11
4
Source: ESA/NFP Review, p. 19.
Note: Columns cannot be added because different projects had varying numbers of deficiencies among
the six criteria.
Compared to many other federal agencies, both BLM and FS have substantial
experience in implementing the mandates of their agencies. Additionally, they
received special training by the Services to perform the internal consultation. The
apparently rocky start by these two agencies might presage a difficult period of
adjustment to the proposed regulations, particularly for agencies that only rarely
consider endangered species issues.
97 There were 9 additional FS projects that included NMFS species and 1 additional BLM
project that included NMFS species. Results for those projects are shown in the NMFS
table.
98 ESA/NPA Review, p. 21-23.

---

CRS-32
Table 4. Total Number of Criteria Missed,
by Project for FWS Species
Number of Criteria
Missed
Forest Service
BLM
No Criteria Missed
6
0
1 to 5 Missed
19
6
Missed All 6 Criteria
18
1
Total
43
7
Source: ESA/NFP Review, p. 21-23.

---

CRS-33
Appendix B. Deadlines: The Desert Rock Energy Project
One major aspect of the proposed regulations is the imposition of a deadline on
informal consultation, and the subsequent effect of that deadline on formal
consultation. This section will examine one project’s request for consultation with
FWS and relate it to the proposed regulations.
The Desert Rock Energy Project concerns the construction of a coal-fired power
plant on Navajo land in northwestern New Mexico.99 The Bureau of Indian Affairs
(BIA) was the Action Agency. It is not clear when the phone calls and emails that
often begin informal consultation first occurred. But on April 30, 2007, the BIA sent
FWS its BA concerning the effects of the proposed project on five endangered
species, one threatened species, and designated critical habitat for two of the
endangered species.
The BA determined that the project was not likely to adversely affect the five
endangered species, nor the two critical habitats, but was likely to adversely affect
the threatened species. On July 2, 2007, FWS asked the BIA to submit additional
information that was not included in the first BA. (Since an adequate BA had not yet
been supplied, consultation was still considered informal.) The BIA submitted a
revised BA on October 26, 2007. On January 7, 2008, FWS replied, noting that a
number of the questions contained in its earlier response had not been answered, and
that all of the species might be adversely affected, as might the designated critical
habitats. Among the issues not addressed in the revised BA, according to FWS,
were:
! The BA assumed that the plant would be fired by coal that was
different in chemical composition (in concentrations of mercury,
selenium, and other contaminants) from the nearby coal that was
likely to be used and which, according to the U.S. Geological
Survey, had higher concentrations of these contaminants than the
coal assumed in the BIA analysis. FWS could not analyze species
impacts until the BA included an analysis of the coal actually to be
used.
! Heavy metals can accumulate in organisms. If the coal that is
actually used has more heavy metals than BIA models assumed, then
a new analysis of this risk would be necessary.
! The cumulative effects of three existing plants plus the new plant,
plus global climate change, were not fully analyzed.
99 It is not clear whether this timeline is typical of Section 7 consultations. It was chosen for
the ready availability of relevant documents and the record of protracted discussions
between an Action Agency and FWS — a scenario that may be affected by the deadlines
proposed in the new regulations. For information on consultation on the Desert Rock
Energy Project, see FWS Memorandum to Regional Director, Navajo Regional Office,
Bureau of Indian Affairs, Gallup, New Mexico. “Subject: Information Needed for Formal
Consultation on the Desert Rock Energy Project.” Cons. #420-2004-F-0356. (January 7,
2008) (Hereinafter Desert Rock Memorandum).

---

CRS-34
The Desert Rock Memorandum from FWS concluded that formal consultation
would begin when it had received the requested information or an explanation why
the information was not made available. No additional documents have been
exchanged between the agencies, although discussion between them continues.
If the proposed regulations had been in effect, the following changes in the
process might have occurred. First, there might have been some effort on the part of
BIA to document the date on which informal consultation began. Second, if one
assumes that the April 20, 2007 memo started informal consultation, then the
proposed regulations would have allowed BIA to terminate consultation 120 days
later, on August 28, 2007, without the concurrence of FWS, due to incomplete
information.
However, BIA chose to continue the consultation process for several reasons.
First, considerable opposition to the Desert Rock Energy Project exists, making a
citizen suit likely, and BIA would not have an ITS excusing incidental takes.
Second, FWS continues to work with BIA to address the problems in the second
amended BA. If jeopardy or adverse modification of critical habitat could occur, it
may be possible to develop reasonable and prudent alternatives through the
consultation process that would avoid jeopardy, adverse modification of critical
habitat, and citizen suits.
If Action Agencies were to choose to terminate informal consultation, and rely
on that termination to avoid formal consultation, the focus of action would likely
shift from the consultation process to the courtroom. Where quick resolution is a
major goal, the courts might not be an Action Agency’s preferred choice. More
importantly, the Action Agency would not have an ITS that would excuse incidental
takes of species, leaving it vulnerable to charges alleging ESA violations.

---