|
Navigating the Endangered Species Act Early informal consultation with agency or taking other pre-emptive action can help reduce the risk of project disruption Alan Bailey Petroleum News
For anyone pursuing a project that may impact a species listed under the Endangered Species Act, it is very important to talk informally to the appropriate government agency at an early stage, to engage the government biologists in discussions over any issues that may be involved, Svend Brandt-Erichsen, partner in Marten Law LLC, told the Law Seminars International’s Energy in Alaska conference on Dec. 2. Once an agency makes an Endangered Species Act ruling, it is extremely difficult to have that ruling overturned — courts are reluctant to second guess the views of agency experts on biology issues and will likely only overturn a ruling on the basis of some procedural flaw, Brandt-Erichsen said.
The National Marine Fisheries Service, within NOAA, and the U.S Fish and Wildlife Service, within the Department of the Interior, are responsible for administering both the Endangered Species Act and the Marine Mammals Protection Act. The National Marine Fisheries Service deals with marine animals such as whales, while Fish and Wildlife deals with land species and some marine animals such as polar bears and walrus.
Federal involvement The Endangered Species Act, or ESA, comes into play for activities that involve some form of federal decision making, such as federal permitting. In that case the decision-making agency has to determine whether an activity has the potential to affect a protected species and, if so, must contact the National Marine Fisheries Service or the Fish and Wildlife Service for an informal consultation. The informal consultation will have one of three outcomes: a finding of no effect on the species; a finding of a possible effect, but with no likely adverse impact; or a finding of the potential for an adverse effect.
A finding of a potential adverse effect will lead to a formal consultation and the preparation of a biological opinion for the proposed activity. The biological opinion will include a set of conditions known as “reasonable and prudent measures” imposed on the activity to avoid harmful impacts on the species. The opinion will also include a decision of “jeopardy” or “no jeopardy” for the species, with “no jeopardy” being by far the most common decision, Brandt-Erichsen said. A finding of “jeopardy” means that the agency thinks that the activity will have a real adverse effect on the ability of the species to survive and recover, he said.
Critical habitat A critical habit designation is normally made in conjunction with an ESA listing and one of the issues that plays into a “jeopardy” decision is the possibility of “adverse modification” of that habitat. The agencies used to have a definition of adverse habitat modification but, following rejection of that definition by some courts, the agencies have dropped the definition and have meantime reverted to the use of a rather vaguely worded working definition. The lack of a precise definition creates opportunities for mischief, Brandt-Erichsen said.
To protect against a citizen lawsuit or to influence the formulation of mitigation measures, it is possible for people to take pre-emptive action, even in a situation where a federal decision is not required, by voluntarily requesting a consultation under section 10 of the ESA. An action under section 10 will result in the negotiation of a habitat conservation plan, spelling out the means of mitigating adverse impacts on the species and considering alternative ways of carrying out a project, Brandt-Erichsen said.
And when a species is being considered for listing it is possible to negotiate a candidate conservation agreement, committing to conservation measures in return for protection against new conservation requirements at a later date, he said.
Litigation However, the main threat to projects posed by the ESA is the possibility of litigation and an associated injunction against project activities, Brandt-Erichsen said.
In fact, although people tend to worry about the ESA placing new, onerous requirements on projects, environmental issues such as oil spill risks are already covered by statutes such as the Clean Water Act. And, although an ESA biological opinion may spell out mitigation measures for preventing an oil spill from an oil development activity, for example, those measures should be the same as the mitigation measures required by other statutes, Brandt-Erichsen said.
Cook Inlet belugas As an example of an ESA listing in operation, Brandt-Erichsen cited the listing of the Cook Inlet beluga whales. So far, the National Marine Fisheries Service has issued two formal beluga whale biological opinions, one for the expansion of the Port of Anchorage and the other for a proposed Knik Arm crossing, he said. Both of these biological opinions made “no jeopardy” findings and found no likelihood of adverse critical habitat modifications. The agency is currently preparing a biological opinion for planned Cook Inlet seismic surveys by Apache Corp., he said.
There has been much debate over the extensive area of critical habitat designation for the Cook Inlet beluga whales. However, the National Marine Fisheries Service has argued that the main impact of the beluga listing on development activities stems from the listing itself rather than the habitat designation — that is a position that the courts have upheld, Brandt-Erichsen said. However, the critical habitat elements for the Cook Inlet belugas — clean water and unrestricted passage between different habitat areas, for example — are very general in nature, making these habitat elements potential focal points for litigation, he said.
|
