Endangered Species Act — Section 7 Consultation

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Endangered Species Act — Section 7 Consultation

by Hugh Holub on May. 24, 2011, under Center for Biological Diversity, climate change, endangered species act, environment water and energy, global warming, litigious environmental groups, politics, Western Watershed Project, WildEarth Guardians

From Findlaw:

The Endangered Species Act

By Virginia S. Albrecht and James N. Christman of Hunton & Williams LLP

Section 7 Consultation

ESA § 7 regulates federal agencies, requiring them to ensure that their activities are “not likely to jeopardize” listed species or their habitats:

Each federal agency shall . . . ensure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species . . . .

16 U.S.C. § 1536(a)(2). To make this decision, the federal agency “consults” with FWS or NMFS. The “consultation” process is described in 50 C.F.R. Part 402, and the federal agencies have published an Endangered Species Consultation Handbook. See 64 Fed. Reg. 31,285 (June 10, 1999).

Consultation has several steps.^{[11] First the agency asks the FWS (or NMFS) whether a protected species “may be present” in the area. If so, the agency prepares a “biological assessment” to determine the impact. (A biological assessment is mandatory, under 50 C.F.R. § 402.12(b)(1), for federal actions that are “major construction activities.”) Next FWS reviews the information and prepares a “biological opinion” (16 U.S.C. § 1536(b)(3)(A)). If it finds the proposed action “not likely to jeopardize” the plant or animal (a “no jeopardy” opinion), it must specify the impact of any “incidental take” of the species, necessary mitigating measures, and conditions that should be imposed on the activity.}

If the FWS or NMFS issues a “jeopardy” opinion, it must also propose reasonable and prudent alternatives that would not violate the ESA. 16 U.S.C. § 1536(d); 50 C.F.R. § 402.14(h)(3). The applicant then has several choices. He can take the “reasonable and prudent alternative” offered by FWS. 50 C.F.R. § 402.14(h)(3). He can appeal to the Endangered Species Committee, 16 U.S.C. § 1536(g), which is expensive and time-consuming. Or he can seek judicial review in federal court.

More…

Put simply whenever a federal agency wants to do something that might impact an endangered species, it must have a Section 7 Consult which gives US Fish and Wildife a shot at the other agency’s project and an opportunity to hold that other agency hostage for money from their budget to be transferred to US Fish & Wildlife’s budget via what is called an “InterAgency Agreement”.

For prime example: Highway robbery federal style …how US Fish & Wildlife gets funds to study bats because US Customs and Border Protection built a fence on the border
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Background info on Endangered Species Act:

Endangered Species Act — an Introduction

Endangered Species Act — Which Animals and Plants are “Threatened” or “Endangered”?

Endangered Species Act — USF&W Introduction and Key Sections

Endangered Species Act — Definition of ”Harm”

Endangered Species Act–Listing and Critical Habitat

Endangered Species Act–Habitat Conservation Plans

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News about litigious environment group activities:

Center for Biological Diversity at war with US Military

Center for Biological Diversity demands Rosemont Mine site be included in protected habitat for frog

Judge puts WildEarth Guardian endangered species agreement on hold