Proposed Changes to Regulations Governing Consultation Under the Endangered Species Act (ESA)

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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 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. Final regulations were published
December 16, 2008, and took effect on January 15, 2009.
The revisions are intended to do three things, according to the Services: clarify when consultation
is applicable; clarify certain definitions; and establish time frames for consultation. The Services
argue that the new regulations show the ESA does not require consultation on greenhouse gas
emissions’ contribution to global warming and its associated impacts on listed species.
The regulations give federal agencies greater discretion to determine when and how their actions
may affect listed species. They also address issues of causation—when an agency action truly
affects the well-being of listed species or critical habitat. The changes modify definitions and alter
the process for consultations. The definitions that are modified include cumulative effects, effects
of an action, and biological assessment. The changes add criteria for determining when
consultations do not apply. The Action Agency continues to determine whether consultation is
required. The processes for formal and informal consultations were 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’s finding during informal consultation. If the Service fails to respond in
writing, the project could continue without further consultation at the discretion of the Action
Agency.

Introduction and Background into the Section 7 Consultation Process..........................................1
The Regulations, Generally.............................................................................................................1
Revised Regulations........................................................................................................................3
Amended Definition of Biological Assessment (§ 402.02).......................................................4
Amended Definition of Cumulative Effects (§ 402.02)............................................................4
Amended Definition of Effects of the Action (§ 402.02)..........................................................5
Changed Criteria for When a Consultation Is Not Applicable (§ 402.03)................................7
The Action Has No Effect on a Listed Species or Critical Habitat (§ 402.03(b)(1)).........11
The Action Is Manifested Only Through Global Processes (§ 402.03(b)(2))....................11
The Effects Are Not Capable of Being Meaningfully Identified or Detected (§
402.03(b)(3)( i) ) .............................................................................................................. 1 3
The Action is Wholly Beneficial (§ 402.03(b)(3)(ii)).......................................................13
Consultation for Only Some Effects of an Action (§ 402.03(c))......................................13
Informal Consultation (§ 402.13)............................................................................................14
Formal Consultation (§ 402.14)..............................................................................................16
Climate Change and the Changed Regulations.............................................................................16
Table 1. Comparison of Previous Regulations to Revised Regulations.......................................19
Table A-1. Number of Projects Reviewed by NMFS that Did Not Meet Specified Criteria.........24
Table A-2. Number of Projects Reviewed by FWS that Did Not Meet Specified Criteria..........25
Table A-3. Total Number of Criteria Missed, by Project for FWS Species..................................25
Appendix A. Internal Consultation: The National Fire Plan (NFP) of the Healthy Forests
Initiati ve ..................................................................................................................... ................ 23
Appendix B. Deadlines: The Desert Rock Energy Project............................................................26
Author Contact Information..........................................................................................................27

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 ¹
treaties and conventions. Section 7 of the ESA requires all federal agencies to carry out programs ²
for the conservation of endangered and threatened species in furtherance of those purposes. 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, ³
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. The
purpose of the Section 7 consultation is to make sure that federal agencies (known as Action
Agencies) avoid jeopardizing listed species or adversely modifying their designated critical
habitat. If a federal agency action causes some unavoidable taking incidental to an otherwise
lawful purpose, the ESA allows the Services to issue an Incidental Take Statement to the Action
Agency, meaning the harm will not be prosecuted. The Action Agency must also minimize the
effects of the taking. Acting without a Section 7 consultation leaves a federal agency at risk of
violating the ESA because it would not have the Incidental Take Statement excusing its conduct.
Section 7 also prohibits a federal agency from making “irreversible or irretrievable commitment
of resources” that would prevent the effectiveness of any alternative measures suggested by the ⁴
Service.

A comparison of the versions of the regulations is in Table 1 at the end of this report.
While not stated in the statute, as a practical matter not every federal action requires consultation.
It has long been within the discretion of the Action Agencies to determine whether a proposed ⁵
action requires consultation. This option was provided in the regulations of 1986. The 1986
regulations (in place until the 2009 revision) established informal and formal consultation
procedures. When an Action Agency realizes its project may affect a listed species or critical ⁶
habitat, it must consult with the Service. This decision must be made “at the earliest possible

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time.”⁷ If the action may affect critical habitat or species, then the Action Agency will submit an
“initiation package” described in 50 C.F.R. § 402.14(c). This information must be based on the ⁸
best scientific and commercial data available. The initiation package starts the formal
consultation process.
A consultation is an ongoing conversation between the Action Agency and the Service biologists.⁹
A few phone calls may suffice to reassure the Action Agency that there are no listed species in the
action 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
biological assessment (BA) for formal consultation. This process may proceed in days, weeks, or ¹⁰
sometimes months. There was no deadline for the Service to respond to a request for
concurrence in the previous regulations.
The statute requires the Services to respond to a consultation initiation within 90 days or on a ¹¹
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. The Action Agencies’ perception of when formal consultation begins is often
earlier, and likely a source of the frustration noted below. 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. Some see
consultation as needless delay of weeks, months, or even a year or more, even if the result of the
consultation is a “no jeopardy” biological opinion (BiOp), which finds the action will not
jeopardize the species nor adversely modify designated critical habitat.
According to the Services, the workload associated with consultations has grown since 1996, with ¹²
FWS reporting double the consultations. The FWS reports that in 2006, there were 39,346
requests for technical assistance, 26,762 requests for informal consultations, and 1,936 requests ¹³
for formal consultations.

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On August 15, 2008, the Services issued proposed revisions to the Section 7 consultation ¹⁴
regulations. A draft environmental assessment was prepared under the National Environmental ¹⁵
Policy Act, finding that the changes would not have a significant impact on the environment. ¹⁶
The final version was published December 16, 2008, and took effect January 15, 2009. A ¹⁷
lawsuit was filed to set aside the changed regulations, claiming they violated federal law.
The regulations revise the consultation process by: (1) allowing already prepared documents to be
used as a BA; (2) allowing Action Agencies greater discretion to determine whether consultation
applies; (3) clarifying certain definitions; and (4) making procedural changes to informal ¹⁸
consultations.
A stated goal of the revised regulations relates to climate change. The Services said that the
modifications would “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 ¹⁹
listed species.” Some believe that the ESA is not the appropriate statutory vehicle for regulating
greenhouse gas emissions, as it was not implemented to analyze air quality. Others note that the
ESA has no exceptions for types of projects, and therefore, 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.
The suit against the changes argues that the revisions will not achieve these goals:
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Six substantive changes were made to the regulations. The alterations included the following:
• changing the definition of biological assessment;²¹
• changing the definition of cumulative effects;²²

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• changing the definition of effects of the action;²³
• changing when a consultation is needed;²⁴
• changing the procedure for informal consultation;²⁵ and
• changing the procedure for formal consultation.²⁶
The final version altered the criteria for when a consultation is needed, but otherwise
made no significant changes to the proposed version.
The change to the definition of BA added two sentences to allow other documents to serve as a
formal BA, with a stated goal of promoting efficiency. See Table 1. Action Agencies would not
have to create a special document when that information was already available in another form,
although the Action Agency would have to indicate where the relevant material appeared if
another document were used. This appears consistent with the statute, which already allows the ²⁷
BA to be part of a review under the National Environmental Policy Act (NEPA). Additionally,
the former regulations already provided that the contents of a BA were at the discretion of the ²⁸
Action Agency. Therefore, this addition appears to have little legal or policy impact on the
operation of the consultation process.
The revised regulations added a sentence to the existing definition of cumulative effects. See
Table 1. The 1986 regulations defined 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 added 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 was created by regulation, not by statute. In 1986, when this
regulation was established, the Service justified using the term by saying 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 already the Action Agency’s

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“responsibility to develop this information.”²⁹ In proposing the 1986 regulations, the Services
stated that the context of cumulative effects under NEPA is broader than that under the ESA, ³⁰
noting that the ESA does not require consideration of future federal actions.
Action Agencies are required to consider cumulative effects in their BAs,³¹ and to provide a ³²
written analysis of cumulative effects in the request for formal consultation. The Services are
also required to consider cumulative effects. During formal consultation, a Service must review ³³
cumulative effects, and its BiOp must be based on whether the action, together with cumulative ³⁴
effects of the action, will jeopardize a species or adversely modify critical habitat.
It is not clear what the language added 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 ³⁵
federal activities “physically located” within the action area. 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.
The concept of cumulative effects is clearer when read together with the regulation addressing
effects of the action. While a cumulative effects analysis excludes federal actions, the definition
of 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 ³⁶
action area” that have already undergone consultation. See Table 1. 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 ³⁷
as part of its BA. The Service must include a detailed discussion of the effects of an action in its ³⁸
BiOp.
The revised 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

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requiring the Action Agency to consider indirect effects during consultation.³⁹ When the
regulation was being drafted in 1986, the Services refused to narrow the definition to omit these
effects, stating “the Service declines to narrow the scope of its review (as requested by one ⁴⁰
commenter) in light of existing case law.”
The revised regulation has two changes to the definition of indirect effects, altered only slightly
between the proposed and the final versions. The Services stated that these changes would ⁴¹
“simplify the consultation process and make it less burdensome and time-consuming.”
The first change requires the proposed action to be an essential cause of those indirect effects. ⁴²
According to the Services, an essential cause is a cause that is necessary for that effect to occur.
The regulation continues: “If an effect will occur whether or not the action takes place, the action
is not an essential cause of the indirect effect.” This suggests that when multiple stressors affect a
species, an Action Agency might not have to consider what harm an action was doing to a
species, if other harms were just as severe, or if the same consequences would occur without the
action.
A similar interpretation of effects of the action was 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 ⁴³
additional harm.” Inclusion of essential cause seems to take the position rejected by the court 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 ⁴⁴
to avoid jeopardizing listed species: they have an affirmative responsibility to conserve species.
According to the U.S. Supreme Court, federal agencies have the obligation “to afford first priority ⁴⁵
to the declared national policy of saving endangered species” (emphasis added).
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, not used in other
statutes. It is not the standard of information used throughout the ESA statute and regulations,
which instead use “the best scientific and commercial data available,” a standard with significant
judicial analysis to define it.
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., in the case of the spotted owl); both foraging habitat and bioaccumulation of toxins

³⁹^N^a^tiona^{l W}^ildlⁱ^f^e^Fe^de^r^a^{tion v}^.^C^o^le^m^a^{n, 529}^F.2^d³⁵^9,³⁷^3-⁷⁴⁽⁵^th^Cⁱ^r^.¹⁹⁷⁶⁾⁽^t^he^f^a^c^t^tha^t^t^h^e^Fe^de^r^a^{l H}ⁱ^g^h^w^a^y
^A^d^mⁱ^nis^t^r^a^tion^did^no^{t c}^o^ntr^o^l^prⁱ^v^a^t^e^de^v^e^lopm^eⁿ^{t tha}^t^w^ould^r^e^s^u^{lt f}^o^llowⁱ^ng^c^ons^tr^uc^ti^on^of^its^hi^g^h^w^a^y^{did n}^o^t
^re^lie^v^e^the^a^g^eⁿ^cy^o^f^its^re^s^pons^ib^ility^unde^{r Se}^c^tioⁿ^{7 of}^the^E^S^A⁾^,^cert^.^d^eⁿⁱ^ed^,⁴^{29 U}^.^S.⁹⁷^{9 (}¹⁹⁷⁶⁾^.
⁴⁰⁵¹^Fe^{d. R}^e^g^.^a^t¹⁹⁹³^{2 (}^J^uⁿ^e³^,¹⁹⁸⁶⁾^.
⁴¹⁷³^Fe^{d. R}^e^g^.^a^t⁴⁷⁸⁷^{0 (}^A^ug^us^{t 1}⁵^{, 2}⁰⁰⁸⁾^.
⁴²^Id.
⁴³^N^a^tiona^{l W}^ildlⁱ^f^e^Fe^de^r^a^{tion v}^.^N^a^tiona^{l Ma}^rⁱ^ne^Fis^h^e^r^ie^s^Se^r^v^ic^e^,⁵²^{4 F.}^3d⁹^17,⁹^{30 (}⁹^th^Cⁱ^r^.²⁰⁰⁸⁾^.
⁴⁴^{16 U}^.^S.C^.^§¹⁵³⁶⁽^a⁾⁽¹⁾^.
⁴⁵^T^e^nne^sse^e^V^a^lle^y^A^u^thority^v^.^{Hill, 4}³⁷^U.S.¹^{53 (}¹⁹⁷⁸⁾^.

(e.g., in the case of polar bears); and both excessive incidental take and loss of nesting habitat
(e.g., in the case of sea turtles). In these three examples, any one of the threats, if left
uncontrolled, might be sufficient to jeopardize the continued existence of the species and
ultimately lead to its extinction. Would an action that exacerbates just one threat and not another
be eliminated from considerations of the effects of the action in both the BA and the BiOp? The
changes appear to permit this outcome.
Specifically, the revised rule states that if the action has “an effect [that] will occur whether or not ⁴⁶
the action takes place, the action is not an essential cause of the indirect effect.” In practice, it
may be extremely difficult for the Services to determine whether an effect will occur regardless of
an agency action. The changed 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 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 power plants can be ignored?
Under previous regulations, a Section 7 consultation was required for “all actions in which there ⁴⁷
is discretionary Federal involvement or control.” The consultation requirement had been
interpreted to apply only to those actions that may affect a listed species or critical habitat. At the
time of its promulgation in 1986, the discussion about the previous version of Section 402.03
centered on what was meant by actions, and since then, the focus has been on the term ⁴⁸
discretionary. The revised regulations changed this section significantly. See Table 1. The
changes added a number of ways in which an Action Agency could decide that consultation did
not apply. This section had the most changes between the proposed and the final versions.
Under the changed version, Subsection (b) lists a number of criteria; if any one of the criteria is
met, an agency does not have to consult. These criteria do not indicate what administrative record
will memorialize the application of these criteria. Presumably, these would be final agency
actions, subject to review under the Administrative Procedure Act (APA), but the revised
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,” a new standard
created in part of these changes.

⁴⁶^{50 C}^.^F.R^.^§⁴⁰^2.^02.
⁴⁷^{50 C}^.^F.R^.^§⁴⁰^2.^03.
⁴⁸^Se^e^N^a^tiona^{l A}^s^s^o^cⁱ^a^tion^of^H^o^m^e^B^u^ilde^r^s^,^Iⁿ^c^.^v^.^D^e^f^e^nde^r^s^of^W^ildlif^e^,¹²⁷^{S. C}^t^.²⁵¹⁸⁽²⁰⁰⁷⁾⁽^hol^ding^t^h^a^t
^w^h^{ere a st}^at^u^t^{e i}^m^p^o^s^{es st}^ri^ct^guⁱ^d^elⁱⁿ^{es on}^w^h^en^{a f}^e^d^e^ral^agen^c^y^m^u^st^act^,^t^h^{e E}^S^A^d^o^e^{s n}^o^t^ap^pl^y^{as an}^ad^dⁱ^tⁱ^oⁿ^a^l
^req^uⁱ^rem^eⁿ^t^b^ecau^{se t}^h^{e act}ⁱ^oⁿⁱ^sⁿ^o^t^dⁱ^scretⁱ^oⁿ^a^ry^).

Under Subsection (b), no consultation is needed “when the direct and indirect effects of that ⁴⁹
action are not anticipated to result in take.” The addition of take as a criterion for when a
consultation is required appears to be a significant change. The previous standards for
consultation turned on questions of jeopardizing the continued existence of a listed species and
modifying its critical habitat. That review considered effects that could be at a species or
landscape level, and applied equally to plants and animals. Take, on the other hand, is a more ⁵⁰
immediate action, focusing on individual organisms, and taking of plants is not prohibited. The
result could be that projects that are 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,
degraded habitat, etc.) might escape the need for consultation, even if the long-term effects of the
action might eventually result in jeopardy. The take requirement might reduce the number of
consultations.
The additional criteria also seem targeted at eliminating consultations. Those criteria are:
• The action has no effect on a listed species or critical habitat;⁵¹
• The effects of an action are manifested in global processes and cannot be reliably ⁵²
predicted or measured at the local scale;
• The effects of an action are manifested in global processes and would result in ⁵³
only an extremely small, insignificant local impact;
• The effects of an action are manifested in global processes and pose a remote ⁵⁴
potential risk of harm to species or habitat;
• The effects of an action are not capable of being meaningfully identified or ⁵⁵
detected in a manner that permits evaluation; or
• The effects of an action are wholly beneficial.⁵⁶
If the Action Agency determines that any one of these criteria apply, consultation with the
Services in not required.
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

⁴⁹^{50 C}^.^F.R^.^§⁴⁰^2.⁰³⁽^b)^.
⁵⁰^U^nde^r^t^h^e^ESA^,^tak^eⁱ^sⁿ^o^t^a^p^r^ohⁱ^bⁱ^t^e^d^act^w^h^en^t^h^{e sp}^eci^{es i}^s^{a pl}^an^t^.¹⁶^U.^S^.^C.^§¹⁵³⁸⁽^a)(2⁾^.
⁵¹^{50 C}^.^F.R^.^§⁴⁰^2.⁰³⁽^b)⁽¹⁾^.
⁵²^{50 C}^.^F.R^.^§⁴⁰^2.⁰³⁽^b)⁽²⁾⁽ⁱ⁾^.
⁵³^{50 C}^.^F.R^.^§⁴⁰^2.⁰³⁽^b)⁽²⁾⁽ⁱⁱ⁾^.
⁵⁴^{50 C}^.^F.R^.^§⁴⁰^2.⁰³⁽^b)⁽²⁾⁽ⁱⁱⁱ⁾^.
⁵⁵^{50 C}^.^F.R^.^§⁴⁰^2.⁰³⁽^b)⁽³⁾⁽ⁱ⁾^.
⁵⁶^{50 C}^.^F.R^.^§⁴⁰^2.⁰³⁽^b)⁽³⁾⁽ⁱⁱ⁾^.

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 ⁵⁷
consulting to reach the jeopardy decision. The regulations in that case would have allowed EPA
to determine that its own 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’ ⁵⁸
without ‘consultation’ with the relevant Service.”
On the other hand, a different federal court found the regulations for the National Fire Plan 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 ⁵⁹
Section 7 consultation mandates. The National Fire Plan is discussed in Appendix A, below.
In practice Action Agencies decide when to consult. However, the changed regulations 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 to precede
it. On the other hand, it is difficult to see the conservation purpose in requiring consultations that
have no effects on species or have 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 changes would provide a clearer regulatory justification for when they
choose not to consult.
According to the Federal Register notice of the final version,
^m^aⁿ^y^co^m^m^eⁿ^t^er^{s as}^ser^t^ed^th^e^Ser^v^{ices ca}ⁿⁿ^o^{t allo}^w^actioⁿ^a^g^en^cie^s^to^m^a^k^e^ap^p^licab^ilit^y
^d^e^ter^mⁱⁿ^at^ioⁿ^s^{as se}^{t o}^u^{t in}^t^h^e^r^u^{le. T}^h^{at is, th}^e^y^asser^t^ed^th^at^a^c^tⁱ^oⁿ^a^g^eⁿ^cⁱ^es^c^aⁿⁿ^o^t^d^e^cⁱ^d^e^,
^wⁱ^t^h^o^u^{t f}^o^r^m^{al o}^rⁱⁿ^f^o^r^m^{al co}ⁿ^s^u^lta^tioⁿ^wⁱ^t^h^th^{e Ser}^v^{ices, t}^h^a^t^th^eir^actioⁿ^h^a^sⁿ^o^e^f^f^e^c^t^o^rⁱ^s⁶⁰
^esseⁿ^tiall^yⁿ^o^{t li}^k^e^l^y^to^ad^v^e^r^s^el^y^af^f^{ect li}^s^t^{ed s}^p^ecies^{or critical h}^a^bitat.
The Services addressed comments challenging the revisions to Section 402.3 in two ways. First,
the Services noted that the statute did not define “consultation” or “assistance.” Second, the
Services asserted that “shall” in the statute at 16 U.S.C. § 1536(a)(2) did not modify consultation
and assistance, but modified the portion of the sentence addressing jeopardy of the species and
protection of habitat. Section 1536(a)(2) says, in relevant part:
^Each^{Federal ag}^eⁿ^c^y^s^h^{all, i}ⁿ^con^s^u^ltation^wⁱ^t^h^an^d^wⁱ^th^{the as}^sⁱ^s^t^an^{ce o}^f^t^h^{e Secretar}^y^,
ⁱⁿ^s^u^{re th}^{at a}ⁿ^y^act^ion^auth^oriz^{ed, f}^uⁿ^d^{ed, or car}^ried^ou^{t by}^s^u^ch^a^g^en^c^y^{... is}ⁿ^o^{t li}^k^e^l^y^to
^j^e^o^p^{ardize th}^{e con}^tin^u^e^{d ex}ⁱ^s^teⁿ^{ce of}^any^eⁿ^dang^er^{ed s}^p^ecies^{or th}^reaten^{ed s}^p^ecies^{or res}^u^lt
ⁱⁿ^th^{e des}^t^ru^ctioⁿ^{or adv}^e^rs^{e m}^odi^fⁱ^cat^ion^of^h^a^{bitat of}^s^u^c^h^s^p^ecies^....
The Services’ first assertion appears to defy the plain meaning of the two words the Services
(correctly) note are undefined in the statute. The Services said “these terms are quite broad and

⁵⁷^W^a^shing^t^{on T}^o^xⁱ^c^s^Coa^litio^{n v}^.^{U.S. De}^pa^rtm^e^{nt of}^the^Inte^ri^or,⁴⁵⁷^{F. S}^u^p^p^.^2d¹¹⁵⁸^(W^{.D. W}^a^{sh. 20}⁰⁶⁾^.
⁵⁸^W^a^shing^t^{on T}^o^xⁱ^c^s^Coa^litio^{n, a}^t¹¹⁷^9.
⁵⁹^D^e^f^e^nde^r^s^of^W^ildlif^e^v^.^K^e^m^p^thor^ne^,²⁰^{06 W}^L²⁸⁴⁴²³^{2 (}^D^.D^.C^.^Se^pte^m^be^r^{29, 2}⁰⁰⁶⁾^.
⁶⁰⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁷^9.

suggest that Congress has provided a great deal of discretion to define consultation and assistance ⁶¹
in this provision.” While Congress may have provided discretion to define how these terms are
applied, as a basic premise of statutory interpretation, in the absence of a definition the ordinary ⁶²
meaning will prevail. In this case, under their common meanings neither consultation nor
assistance can be defined as a unilateral action. Both require interaction with another party. That
other party is established by the ESA as one of the Services.
The second assertion is that “shall” does not pertain the phrase directly following it—“in
consultation with and with the assistance of the Secretary.” The Services said “we believe the
mandatory term ‘shall’ in section 7(a)(2) refers to the obligation of the action agency to avoid
jeopardy or destruction or adverse modification of critical habitat, not to a requirement to consult ⁶³
on each and every action.” The Services’ new interpretation would mean that the statute requires
Action Agencies to ensure their actions do not jeopardize species or harm critical habitat, but that
the consultation and assistance section is optional. To a certain extent, this is the way Section 7
consultations have been conducted—that Action Agencies do not consult on apparently
ecologically trivial actions with no effect on a species or habitat. However, many commenters
expressed concern that the revised regulations go too far in excusing consultations.
The Services also refer to a D.C. district court decision as support of their argument that Action
Agencies may opt out of consultations in certain circumstances. The Services refer to Defenders ⁶⁴
of Wildlife v. Kempthorne, saying that the court rejected a broad interpretation of Section 7
requiring Action Agencies to consult on each and every action. This may be an overly broad
interpretation of that holding.
While the court did not require consultations on every action, the court stated that if there were a
“possibility” of an effect on a species or habitat, the Action Agency must proceed to informal ⁶⁵
consultation. Consultations were not required only if there were no effect:
^Coⁿ^g^r^e^{ss i}ⁿ^ten^d^ed^to^allo^w^A^c^tioⁿ^Ag^eⁿ^{cies to}ⁱⁿⁱ^tiall^y^e^v^alu^a^t^e^t^h^e^p^o^t^eⁿ^tⁱ^a^l^eⁿ^vⁱ^r^oⁿ^m^eⁿ^t^a^l
^con^s^equ^eⁿ^ces^of^f^e^deral^actⁱ^oⁿ^s^an^{d t}^o^m^o^v^e^f^o^r^w^{ard on}^m^a^ny^of^t^h^e^m^wⁱ^t^h^o^u^t^fi^rs^t
^con^s^ultiⁿ^g^t^h^{e Services}ⁱ^f^th^e^y^con^c^lu^{ded th}^{at t}^h^e^y^h^a^{d ‘n}^{o effect’}^on^li^s^t^{ed s}^p^ecies^an^{d t}^h^eir⁶⁶
^cr^{itical h}^a^b^itat.
It is not clear whether the court would consider “small,” “insignificant,” “remote,” or “local”
impacts (the language within revised Section 402.3(b)(2)) the same as no effect, or more similar
to the possibility of an effect, and thus requiring informal consultation.

⁶¹⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁷^9.
⁶²^S^ee,^e.^g^.^,^A^s^g^r^o^w^Se^e^d^C^o^{. v}^.^Wⁱ^nte^r^boe^r^,⁵^{13 U}^.^S.¹⁷^9,¹⁸^{7 (}¹⁹⁹⁵⁾⁽^d^e^f^ining^m^a^r^k^e^ting⁾^{; Fe}^de^r^a^{l D}^e^pos^{it I}ⁿ^s^u^r^a^nc^e
^C^o^r^p^{. v}^.^Me^y^e^r^,^{510 U}^.^S^.⁴⁷¹^,⁴⁷⁶⁽¹⁹⁹⁴⁾⁽^d^e^f^ining^c^o^gⁿ^iz^a^b^le⁾^;^Ma^lla^r^d^v^.^Uⁿ^ite^{d Sta}^t^e^s^,⁴⁹^{0 U}^.^S^.²⁹^6,³⁰^{1 (}¹⁹⁸⁹⁾
^(d^efⁱⁿⁱⁿ^g^req^u^e^st).
⁶³⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁷^9.
⁶⁴²⁰^{06 U}^.^{S. D}ⁱ^s^t^{. L}^E^X^I^S⁷¹¹^{37 (D}^.D^{.C. Se}^pt^{. 2}⁹^,²⁰⁰⁶⁾^{. T}^h^e^s^a^m^e^de^cⁱ^sⁱ^{on s}^t^a^t^e^s^tha^t^t^h^e^d^u^ty^{to ins}^u^re^tha^t^ha^rm
^doe^sⁿ^o^t^oc^c^u^r^is^do^ne^“ⁱ^{n ‘}^c^oⁿ^s^u^l^t^a^tion’^w^ith^the^Se^r^v^ic^e^s^,”^sug^g^e^s^ting^a^m^a^nda^tory^role^f^o^{r t}^h^{e S}^e^rvi^ces.^Id^.^at⁸^.
⁶⁵²⁰^{06 U}^.^{S. D}ⁱ^s^t^{. L}^E^XI^S⁷¹¹^37,^*⁹⁽^D^.D^.C^.^Se^pt.²⁹^,²⁰⁰⁶⁾^.
⁶⁶²⁰^{06 U}^.^{S. D}ⁱ^s^t^{. L}^E^XI^S⁷¹¹^37,^*^{60 (}^D^.D^.C^{. Se}^p^t^.^29,²⁰⁰⁶⁾^.

The first subpart of (b) of the revised regulation allows the Action Agency to decide that its action
has no effect on a listed species or designated critical habitat without any consultation. This has
the practical effect of eliminating consultations where species will not be impacted, which seems
consistent with the goal of the statute and is likely to promote efficiency for that reason.
There has always been a tension between the plain language of Section 7 and its practical
application. Section 7(a)(2) requires Action Agencies to ensure that any action is not likely to
jeopardize protected species or adversely affect their critical habitats. Logic dictates that not all
actions—ordering office supplies, for example—require consultation. The statute requires
agencies to determine that their actions 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 ⁶⁷
a species, it does not need to initiate consultation. On the other hand, 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 ⁶⁸
environment. That may be a more realistic approach to consultations, but it is arguably outside
the Services’ authority to create such a regulatory scheme.
This factor appears to address the Services’ intent to separate climate change issues from the
ESA, although the regulations do not expressly refer to climate change. The final version of
Subsection (b)(2) is different from the proposed version in several ways. Under the proposed
version, consultation would not have been required if the action were “an insignificant contributor
to any effects on a listed species or critical habitat.” That language is completely eliminated from
the final version. Instead, the final version refers to global processes, which is not defined in the
regulations. In the notice of the final version, the Services suggested that global processes could
be synonymous with climate change: “The most topical example of effects that would be
manifested only through a global process is the effects of individual sources of greenhouse gas ⁶⁹
emissions and their contribution to global climate change and warming.” The revised
regulations state that if effects of an agency action are evidenced only by global processes and
one of three conditions occur, consultation does not apply to that action. The regulations state that
consultation is not necessary if those effects:
• cannot be reliably predicted or measured at the local scale, or
• would result in an extremely small, insignificant local impact, or
• have a remote potential risk of harm to species or habitat.⁷⁰

⁶⁷^FW^{S a}^{nd N}^M^FS,^Fin^a^{l E}^S^A^Se^c^tion^{7 C}^ons^u^ltatⁱ^oⁿ^H^a^nd^bo^ok^{, p}^p^.^3-¹²⁽^M^a^r^c^h¹⁹⁹⁸⁾⁽^h^e^r^eⁱ^na^f^t^e^r^C^ons^ul^ta^tioⁿ
^H^a^ndb^ook⁾^.
⁶⁸^{42 U}^.^S.C.^§⁴³^22(c⁾^re^quire^{s a}^d^e^ta^ile^{d sta}^t^e^m^eⁿ^{t f}^o^{r “}^m^a^j^{or Fe}^de^ra^{l a}^c^{tions sig}ⁿ^if^ic^aⁿ^tly^a^f^f^e^c^ting^the^q^u^a^lity^of^the
^h^u^m^an^en^vi^roⁿ^m^en^t^.^”
⁶⁹⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁸^2.
⁷⁰³⁶^C^.^F.R.^§^§⁴⁰²^.³⁽^b⁾⁽²⁾⁽ⁱ⁾^–⁽ⁱⁱⁱ^).

The Services indicate that the addition of “global processes” is an attempt to limit the application ⁷¹
of Section 402.3(b). Because this change is more than mere semantics, this final version is
exposed to the claim that it lacked public notice and comment. While final regulations are
expected to have some changes from the draft version—notably, improvements based on ⁷²
comments—the final rule must be “the logical outgrowth of the proposed rule.” If a change is so
different from the draft it is considered unforeseeable, a court could find the change violated the
APA requirements of giving the public notice and the opportunity to comment on regulatory ⁷³
changes.
This subsection appears to require certain analyses to occur before consultation is determined to
apply. This appears in the requirement that an Action Agency should evaluate the effects of an
action to decide whether a consultation is applicable. Based on the definition of effects of an
action, this evaluation requires an agency to consider an environmental baseline and indirect and
direct effects of its proposed action, and forms a significant portion of the consultation review.
Before the regulatory changes, that evaluation would have occurred during a consultation as part
of a BA and a BiOp. Section 402.03(b) brings that phrase into a different part of the Section 7
process. If the revised regulation is taken at face value, the effects of an action would have to be
scrutinized in the context of global processes. This means the new regulations would require
Action Agencies to perform much of the work of a consultation before even determining one was
required.
Another potential result of the final version is that more actions could advance to consultation
than under the proposed version. The Services indicated that the revision was designed to create a ⁷⁴
“very narrow” exception to consultation. Under the proposed version, which rejected
consultations when effects were insignificant contributors to an effect on a species, it would have
been difficult to argue that a single Title V permit issued under the Clean Air Act was responsible
for the global warming that put endangered coral at risk. However, under the final version, it is
possible to argue that the effects of the permitting process are manifested through global
processes and are predictable at a local level. Warmer oceans mean weaker coral. However, the
Services argue that the effects must be considered only for those global processes produced by the
one action, and that the result of one power plant’s emissions cannot be measured at the local ⁷⁵
scale.
A second way in which the final version appears to advance more actions to consultation than
would have occurred under the draft is under Subsection (b)(2)(iii). The proposed version read
that if the effects of an action on listed species or critical habitat were “such that potential risk of
jeopardy to the listed species or adverse modification or destruction of the critical habitat is
remote” no consultation was required. The Services revised this due to public comment. The final
version reads that if the effects are manifested only through global processes and “are such that ⁷⁶
the potential risk of harm to species or habitat is remote” then no consultation is required. The

⁷¹⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁷^9.
⁷²^N^R^D^C^v^.^E^P^A^,²⁷⁹^F.^3d¹¹⁸⁰^{, 1}¹⁸⁶⁽⁹^th^Cⁱ^r^.²⁰⁰²⁾^.
⁷³^S^ee,^e.^g^.^,^C^itiz^eⁿ^s^f^o^r^B^e^tte^r^F^o^r^e^s^t^r^y^v^.^U^.^{S. D}^e^pt.^of^A^g^rⁱ^c^u^ltur^e^,⁴⁸¹^F.^Su^pp^{. 2}^d¹⁰^{59 (}^N^.D^.^C^a^l.²⁰⁰⁷⁾⁽^r^e^je^c^ting
^{a f}ⁱⁿ^a^l^ru^l^e^b^ecau^{se i}^t^w^a^{s a p}^a^radⁱ^g^m^shⁱ^f^t^f^r^o^m^t^h^{e d}^r^af^t^ru^l^e^).
⁷⁴⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁸^2.
⁷⁵⁷³^Fe^{d. R}^e^g^.⁷⁶²⁸^2.
⁷⁶^T^h^{e S}^e^rvi^{ces i}ⁿ^dⁱ^cat^ed^t^h^at^t^hⁱ^s^c^h^an^{ge i}^s^al^soⁱⁿ^t^e^nde^{d to}^lim^{it c}^ons^ulta^ti^ons^f^o^r^p^r^oje^c^t^s^w^{ith g}^r^e^e^nho^us^e^g^a^s
^e^mⁱ^ssi^oⁿ^s^.⁷³^F^e^d.^R^e^g.^at⁴⁷⁸⁷²^.

distinction is between jeopardizing a listed species versus harming a listed species, and adversely
modifying or destroying critical habitat versus harming habitat. These terms have precise
meaning in ESA practice. Jeopardizing a species means the action is likely to cause the species to ⁷⁷
become extinct. Harming a species, on the other hand, suggests injuring or killing a specific ⁷⁸
creature. The same disparity occurs regarding habitat, in that destroying critical habitat is not as
severe as harming habitat, especially when this appears to apply to all habitat, and not merely that
area specifically designated as critical. Accordingly, the final version may require consultation for
less harmful actions than the proposed version, thereby increasing the number of consultations.
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 determination 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. According to the Services, the Consultation Handbook indicates “best ⁷⁹
judgment” will be used. 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.
This revision allows 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 unnecessary consultations. A similar provision is in the Consultation Handbook, but ⁸⁰
there the decision is made only after production of a BA or other similar document. The revision
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 above factors from Subsection (b) are linked by an “or”, suggesting that any one of them
could be the basis for an Action Agency not to initiate consultation. Subsection (c) discusses what
happens if some of the Subsection (b) criteria apply and some do not:
^I^f^{all o}^f^th^{e ef}^f^{ects o}^f^an^actioⁿ^f^a^ll^wⁱ^t^hⁱⁿ^p^a^r^a^g^r^ap^h⁽^b⁾^o^f^th^{is sectio}ⁿ^,^th^eⁿⁿ^o^coⁿ^s^u^ltatioⁿ
^{is r}^e^q^u^ir^ed^f^o^r^th^{e ac}^tioⁿ^.^I^f^oⁿ^{e o}^r^m^o^r^e^b^u^tⁿ^o^{t all o}^f^t^h^{e e}^f^f^{ects o}^f^aⁿ^actioⁿ^f^a^ll^wⁱ^t^hⁱⁿ
^p^a^r^a^g^r^ap^h⁽^b⁾^o^f^th^{is sectio}ⁿ^,^th^en^coⁿ^s^u^ltatioⁿ^{is r}^e^q^u^ir^ed^oⁿ^ly^f^o^r^th^o^s^{e ef}^f^ect^{s o}^f^t^h^e^a^c^tⁱ^oⁿ
^th^{at d}^oⁿ^o^{t f}^a^ll^wⁱ^thⁱⁿ^p^a^r^a^g^r^a^p^h⁽^b⁾^.

⁷⁷^{50 C}^.^F.R^.^§⁴⁰^2.^02.
⁷⁸^{50 C}^.^F.R^.^§¹⁷^.3.
⁷⁹⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁸^{3 (}^t^he^Se^r^v^ic^e^s^indic^a^t^e^this^oc^c^u^r^s^oⁿ^p^.^x^v^,^but^no^s^u^c^h^pa^g^e^w^a^s^f^{ound. C}^R^S^f^ound^{it i}ⁿ
^Se^c^tion^3.^{5 o}ⁿ^pa^g^e^3-¹²^of^the^C^ons^ul^ta^tio^{n H}^a^nd^bo^ok⁾^.
⁸⁰^C^ons^ulta^tio^{n H}^aⁿ^d^b^ook^,^pp.^3-¹²^.

This is an additional suggestion that Action Agencies will be performing a complicated effects
analysis determining that they must consult with the Services. It seems Subsection (c) could 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. The Services
use power plant emissions as an example, saying that the immediate, local effect of the emissions ⁸¹
may require consultation, but the climate change aspects would not. Because these
determinations appear to be made by an Action Agency without the consultation or assistance of
the Services, they are arguably contrary to the ESA.
There appears to be an inconsistency between the revisions in Subsection (c) and those in Section
402.13. Subsection (c) permits an agency to consult for only part of a project. However, the
changes to Section 402.13—informal consultations—require an Action Agency to consider “the
effects of the action as a whole.” In that case, whatever aspects of the action that were not
advanced to consultation could be considered during the consultation anyway, when the agency
considered the effects of the action as a whole.
The 1986 regulations distinguished between informal consultations and formal consultations,
making a practical distinction based on the likely severity of an action’s impacts. The informal
consultation regulation was 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 ⁸²
likely to adversely affect a listed species or critical habitat.” If it agrees, the Service is required
to concur with the Action Agency’s determination of “not likely to adversely affect” in writing.
The revised regulations make procedural changes and substantive additions to the informal
consultation process.
The first change modifies the scope of what is reviewed in an informal consultation. The previous
regulations stated, “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 ⁸³
is terminated, and no further action is necessary.” The revised regulation increases the scope
beyond the agency action to include other relevant projects. Section 402.13(a) 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 ... the consultation process is terminated ... if the Service concurs in
writing.” 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 the decision to aggregate actions
requires the written concurrence of the Service. It appears that the concurrence refers to the “not

⁸¹^Se^e⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁸^2-⁸³^.
⁸²⁵¹^Fe^{d. R}^e^g^.^a^t¹⁹⁹⁴^{8 (}^J^uⁿ^e³^,¹⁹⁸⁶⁾^.
⁸³^{50 C}^.^F.R^.^§⁴⁰^2.¹³⁽^a⁾^.

likely to adversely affect” determination. However, it is ambiguous, and could mean the Service
has to agree as to the relatedness of the actions too.
Another significant issue is whether considering only a “segment of a comprehensive plan” could
obscure the full agency action and thwart consideration of the adverse effects that may result from
the entire project. The Ninth Circuit rejected an attempt to isolate a portion of a project when ⁸⁴
considering whether an action would be likely to jeopardize a species.
A second change to the previous regulatory language alters the substance of the informal
consultation review. That addition states: “For all requests for informal consultation, the Federal
agency shall consider the effects of the action as a whole on all listed species and critical ⁸⁵
habitats.” As discussed earlier, effects of the action appears in the context of an Action Agency’s
BA in formal consultations. This would add that evaluation to informal consultations as well. This
appears to increase the burden of informal consultations without necessarily offering relief from
the formal consultation process.
The informal consultation process is revised by adding a deadline for a 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 ⁸⁶
determination, the consultation may be terminated without the Service’s concurrence. The
Services may extend the deadline by an additional 60 days, and consultation may continue
beyond this term if all the parties agree. Section 402.13(b) states that this termination means that
Section 7(a) is satisfied. While the deadline may spur efficiency by forcing a response from the
Service, it also could violate the statute’s purpose of having the Service and the Action Agency
determine a project’s potential harms using the best scientific and commercial data available.
Additionally, as pointed out in a GAO report referred to by the Services, having adequate staff to ⁸⁷
address consultations is a problem. The time limit could allow projects that may pose jeopardy
to move forward due to default, or lead to hasty conclusions by the Services.
The revised regulation appears to create a new document for informal consultations: a request.
Based on the new deadline requirement, a request could serve an important procedural role by
marking the date on which the consultation starts. However, the revised regulations do not define
request. The previous regulations did not require a specific request for informal consultation—a
series of phone calls could start the process. A request now marks the start of the informal

⁸⁴^N^a^tiona^{l W}^ildlⁱ^f^e^Fe^de^r^a^{tion v}^.^N^a^tiona^{l Ma}^rⁱ^ne^Fis^h^e^r^ie^s^Se^r^v^ic^e^s^{, 52}^{4 F.}^3d⁹^17,⁹^{33 (}⁹^th^Cⁱ^r^.²⁰⁰⁸⁾⁽^hol^di^ng^tha^t
^N^M^{FS i}ⁿ^c^o^r^r^e^c^tly^c^ons^ide^r^e^d^oⁿ^l^y^the^dis^c^r^e^tiona^r^y^ac^tions^of^a^pr^oje^c^t^by^is^ola^ting^the^no^n-^dis^c^r^e^ti^ona^r^y^one^s^{in its}
^BiOp^).
⁸⁵^{50 C}^.^F.R^.^§⁴⁰^2.¹³⁽^a⁾^.
⁸⁶^{50 C}^.^F.R^.^§⁴⁰^2.¹³⁽^b)^.
⁸⁷^GA^O,^{ESA: M}^o^re^Fe^de^{ral M}^aⁿ^a^g^e^m^eⁿ^{t Atte}ⁿ^tio^{n Is N}^eed^ed^t^o^Im^p^r^o^{ve t}^h^{e C}^oⁿ^s^ul^t^a^tⁱ^oⁿ^P^r^o^cess^,^GAO-0⁴^-⁹³^,^p^.⁴
^(M^arch²⁰⁰⁴^).

consultation period under the revisions, suggesting that a written document may be required as a
record of the date. When read with the requirement that the Action Agency must consider the
effects of an action when making a request, these changes escalate the informal consultation
process, making it more like a formal one.
The only change to the formal consultation process is a link to the deadline imposed by the
informal consultation. The revised regulation states 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 has been completed without a written ⁸⁸
concurrence from the Service within the appropriate time.
Overall, the potential effects of the changes include blurring the distinction between informal and
formal consultation. Both would (presumably) begin with written requests, both would involve ⁸⁹
analyses of effects of the action, and both would have time limits for completion. 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.
The revised processes for informal and formal consultation raise a number of questions. The
regulations might create a perverse incentive to provide inadequate information, because an
agency could submit 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 assuming the
risk of potentially taking a listed species without an Incidental Take Statement (ITS).) 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 changes might
increase their work load.

In the notice of the proposed rule, the Services stated that there is no requirement to consult on ⁹⁰
greenhouse gas (GHG) emissions’ contribution to global warming. Some of the revised
regulations separate projects that may affect climate change from the consultation process.
Before discussing climate change in this context, it should be noted that the purpose of 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
produce GHGs directly. Most actions result in permits or licenses for others to produce the gases.
Therefore, arguably, agency actions would have only indirect effects on producing GHGs, which

⁸⁸^pr^o^pos^e^d⁵⁰^C^.^F^.^R^.^§⁴^02.¹⁴⁽^b)^.
⁸⁹^Un^d^e^{r cu}^rreⁿ^t^regu^l^a^tⁱ^oⁿ^s^,^t^h^{e d}^e^ad^lⁱⁿ^{e f}^o^{r f}^o^rm^al^coⁿ^s^u^l^t^a^tⁱ^o^{n on}^p^r^o^j^ect^{s t}^h^at^do^no^tⁱⁿ^vo^l^v^{e an}^app^lⁱ^can^t^(f^o^r^a
^lic^eⁿ^s^e^{, pe}^r^m^{it, e}^t^c^.⁾^m^a^y^be^e^x^tende^d^by^m^u^tua^l^c^ons^eⁿ^{t of}^the^A^c^tion^A^g^eⁿ^cy^a^{nd the}^Se^r^v^ic^e⁽^§⁴^02.¹⁴⁽^f⁾⁾^.
⁹⁰⁷³^Fe^{d. R}^e^g^.^a^t⁴⁷⁸⁷^2.

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:
^T^h^{ere is}^cu^rren^t^l^yⁿ^o^w^a^y^to^determⁱⁿ^e^h^o^w^th^{e e}^mⁱ^s^sⁱ^ons^f^r^o^m^{a s}^p^eci^fⁱ^{c proj}^{ect u}ⁿ^d^er
^con^s^ultation^both^inf^l^u^eⁿ^{ce cli}^m^{ate ch}^aⁿ^g^e^an^{d th}^en^s^u^bs^e^q^u^eⁿ^t^l^y^a^f^f^{ect s}^p^eci^fⁱ^{c lis}^ted
^s^p^ecies^{or critical}^h^a^{bitat, i}ⁿ^c^l^u^d^ing^{polar bears}^.^A^s^w^eⁿ^o^w^un^ders^tan^d^t^h^e^m^{, t}^h^{e bes}^t
^scien^t^if^{ic d}^a^{ta cu}^r^r^eⁿ^tl^y^a^v^ai^lab^l^{e d}^o^e^{s n}^o^{t d}^r^aw^{a cau}^sa^{l co}ⁿⁿ^ectioⁿ^b^e^t^w^eeⁿ^GHG
^e^m^is^sⁱ^ons^res^u^l^ting^f^r^o^m^{a s}^p^ecifⁱ^{c Federal action}^an^{d eff}^e^cts^on^lis^{ted s}^p^ecies^{or critical}
^h^a^b^{itat b}^y^cli^m^a^t^{e ch}^aⁿ^g^e^{, n}^o^r^ar^{e th}^er^{e su}^f^f^icien^t^d^a^{ta to}^estab^lis^h^th^{e r}^e^q^u^ir^ed^cau^sal
^coⁿⁿ^ectioⁿ^to^th^{e le}^v^e^{l o}^f^r^eas^oⁿ^ab^{le cer}^tain^t^y^b^e^t^w^een^aⁿ^ac^tioⁿ^’^{s r}^e^s^u^ltiⁿ^g^e^mⁱ^ssioⁿ^{s a}ⁿ^d⁹¹
^ef^f^e^c^t^on^s^p^ecies^{or critical h}^a^bitat.
The revised regulations advance the Services’ position that an ESA consultation should not
consider the effects of GHG emissions. The Services gave these reasons for why GHG emissions
from a project are not 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 (§ 402.02);
• GHG emissions may be an “insignificant contributor” to any adverse impacts
(proposed § 402.03(b)(2)) [this was eliminated in the final version];
• GHG emissions may not be “capable of being meaningfully identified or detected
in a manner that permits evaluation” (§ 402.03(b)(3)(i)); and
• the potential risk of harm to species or habitat from those GHG emissions is
remote (§ 402.03(b)(3)(iii)) [this was moved to 402.03(b)(2)(iii) and revised in ⁹²
the final version].
The revised regulations, however, do not expressly refer to GHGs, but instead use the term global
processes, which is undefined. The Services indicated they chose global processes as a way to
limit application of the revised section of when consultation is needed, to exclude only those ⁹³
evaluations involving climate change. It is not clear why they did not do so directly by referring
to climate change, rather than using what could be found to be a vague term. Global processes
could include such other interrelated factors as El Niño, changing drought patterns, and rising sea
levels.
Most scientists agree that countless sources of GHG emissions are driving climate change. Under
the revised regulations, however, GHG emissions from a particular or narrowly defined agency
action may not be considered an essential cause of any climate change effects on a species. Under
the revised regulations, an agency action must be an essential cause of an effect on a species for it
to be considered after the consultation process has begun. 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 ⁹⁴
evaluated.” The causal link to affect a species is arguably quite tenuous: GHG emissions must

⁹¹⁷³^Fe^{d. R}^e^g^.²⁸³⁰^5,²⁸³¹^{3 (}^M^a^y^15,²⁰⁰⁸⁾⁽^s^pe^cⁱ^a^l^r^u^le^s^f^o^r^pola^r^be^a^r^s⁾^.
⁹²⁷³^Fe^{d. R}^e^g^.^a^t⁴⁷⁸⁷^2.
⁹³⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁸^2.
⁹⁴⁷³^Fe^{d. R}^e^g^.^a^t⁴⁷⁸⁷^0.

first affect climate change, which then must affect an ecosystem, which then must affect a
species.
The remaining changes in the rule influence how the Action Agency decides whether consultation
applies to an action. Actions that manifest themselves in global processes, which presumably
would include increased GHGs, would require consultation under certain circumstances, such as
if the local impacts could be reliably predicted, or the local impacts were more than “extremely
small, insignificant.” Here, in the context of GHGs, the aggregation of actions could be key.
According to the Services, EPA modeling indicated that “the emissions of a very large coal-fired
power plant would likely result in a rise in the maximum global mean temperature of less than ⁹⁵
one-thousandth of a degree.” However, 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 ⁹⁶
suffice. The Services said the decision would be “based on best judgment.”
Another change to the current regulations that the Services have indicated will exclude some
consultations on projects with GHG emissions, is the provision that the effects of the action must
be such that the “potential risk of harm to species or habitat is remote.” Remote has many
meanings. Noting that the provision containing the term had been modified, the Services ⁹⁷
indicated that remote could apply to time, space, probability of occurrence, or other things. The
complexities of global climate modeling make such an assessment on an individual project
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 revised regulations allow agencies to
consider not just an agency action but “a number of similar actions, an agency program, or a ⁹⁸
segment of a comprehensive plan.” 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 revision whether the decision 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 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 proponents maintain that the number of federal agency actions with the ⁹⁹
potential to affect climate change may be so large as to overwhelm the Services. In the lawsuit

⁹⁵⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁸^3.
⁹⁶⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁸^{4 (}^r^e^f^e^r^rⁱ^ng^{to t}^h^e^C^ons^ulta^ti^{on H}^aⁿ^d^b^ook⁾^.
⁹⁷⁷³^Fe^{d. R}^e^g^.^a^t⁷⁶²⁸^3.
⁹⁸^{50 C}^.^F.R^.^§⁴⁰^2.^13.
⁹⁹^J^o^hⁿ^K^o^s^t^y^a^c^k^a^{nd D}^a^{n R}^o^hlf^,^C^ons^e^r^vⁱ^ng^En^da^nge^r^e^d^Spe^cⁱ^e^sⁱⁿ^{an Er}^{a o}^f^G^l^o^b^a^l^W^a^r^mⁱⁿ^g^{, 38 E}^L^R¹⁰²⁰³⁽^A^pr^il
²⁰⁰⁸⁾^.

challenging the regulations, the plaintiffs argued that omitting climate change from the
consultation requirement leads to an inconsistent result: species may be listed as a result of
climate change, but actions that contribute to climate change would not have to be reviewed by ¹⁰⁰
the Services to determine their effect on listed species and their environments. At least one
federal court required the Services to consider climate change as part of a Section 7 ¹⁰¹
consultation.
Table 1. Comparison of Previous Regulations
to Revised Regulations
^{(Proposed deletions from the}^{current regulations are m}^arke^d^{by bra}^c^{kets and wr}^{itten in itali}^c^s.^Proposed
^ad^{ditions to the regulations}^ar^{e in bold type.)}
^{Previous Version of}^Title
^{50 C.F.R.}^{Final Version}
^402.⁰²^{– Definition of Biolog}^ical^Assessment
^Bio^logica^{l assessment re}^{fers to t}^h^e^{information pre}^pared^Bio^logica^{l assessment}^means^t^h^e^{information pre}^pared
^{by or u}^{nder t}^{he direction of the}^{Federal agency}^{by or u}^{nder t}^{he direction of the}^{Federal agency}
^{concerning listed and}^{proposed s}^{pecies and designated}^{concerning listed and}^{proposed s}^{pecies and designated}
^{and proposed c}^{ritical habitat that}^{may be}^prese^{nt in t}^he^{and proposed c}^{ritical habitat that}^{may be}^prese^{nt in t}^he
^{action area and th}^{e evaluation of}^{potential effects of t}^he^{action area and th}^{e evaluation of}^{potential effects of t}^he
^{action on suc}^{h spe}^{cies and ha}^bitat.^{action on suc}^{h spe}^{cies and ha}^bitat.^{A biologic}^al
^{assessment may be a doc}^um^{ent prepared f}^or
^{the sole purpose o}^f^interagen^{cy co}^{nsultation, or}
^{it may be a doc}^{ument or}^doc^{uments prepared}
^for^{other pu}^{rposes (e.g., an e}^nvironmental
^{assessment or environmenta}^{l impact}
^{statement) containing the information}^required
^{to initiat}^{e the consultation. The Federal agency}
^{is required to pr}^{ovide the Se}^{rvices a specific}
^{guide or statement as to the location o}^f^the
^{relevant consultation inform}^{ation as described}
^{in 402.}^14,^{in any alternative}^docu^ment
^{submitted in lieu of a biologi}^{cal assessment.}

^{Cumulative effect}^{s are t}^{hose effe}^{cts of fut}^{ure State or}^{Cumulative effect}^s^means^t^hose^{effects of f}^utu^{re State}
^{private activities, not involving Federal activities, that are}^{or private activities, not involving Federal activities, that}
^reasonably^{are reasona}^{bly certain to occu}^r^{within the action area}
^{of the Federal action su}^{bject to c}^onsultation.
^{certain to occur wit}^{hin the}^{action area of t}^{he Federal}^{Cumulative effects do not in}^{clude future Federal}
^{action subject to cons}^ultation.^activiti^{es that are physically l}^{ocated within the}
^{action area}^{of the pa}^rticular^{Federal action}
^{under c}^onsultation.

^Effects^{of the action}^refers^{to the}^{direct and indirect}^Effects^{of the action}^mea^ns^the^{direct and indirect}
^{effects of a}ⁿ^{action on t}^{he sp}^{ecies or critical habitat,}^{effects of a}ⁿ^{action on t}^{he sp}^{ecies or critical habitat,}

¹⁰⁰^C^e^nte^r^f^o^r^Bⁱ^ol^og^ic^a^l^Dⁱ^v^e^r^s^it^y^{v. K}^e^m^p^thor^ne^{, N}^o^{. C}^V^-⁰^8-⁵⁵⁴⁶^,^a^t^{18 (}^N^.D^{. C}^a^l.^fi^le^d^D^e^c^.¹⁰^,²⁰^08).
¹⁰¹^N^a^tur^a^{l R}^e^s^our^c^e^s^D^e^f^e^ns^e^C^oun^c^{il v}^.^K^e^m^p^thor^ne^{, 5}⁰⁶^F.^Su^pp.²^d³^22,³^{69 (}^E^.D^{. C}^a^l.²⁰⁰⁷⁾^.

^{Previous Version of}^Title
^{50 C.F.R.}^{Final Version}
^{together with t}^{he effe}^{cts of othe}^{r activities that are}^{together with t}^{he effe}^{cts of othe}^{r activities that are}
^{interrelated or interdepe}^{ndent w}^{ith that action, that will}^{interrelated or interdepe}^{ndent w}^{ith that action[}^,^{] t}^hat
^{be added to the en}^{vironmental b}^{aseline. The}^{will be added to the environment}^{al baseline. The}
^{environmental}^{baseline includes t}^{he past}^{and p}^rese^nt^{environmental}^{baseline includes t}^{he past}^{and p}^rese^nt
^{impacts of all Federal, State,}^{or private actions and other}^{impacts of all Federal, State,}^{or private actions and}
^huma^{n activities in the action ar}^e^{a, the anticipated}^{other h}^{uman a}^{ctivities in the acti}^{on area, the}
^{impacts of all proposed Federal p}^{rojects in the action}^{anticipated impacts of all propose}^{d Federal projects in}
^{area that}^{have already}^undergone^{formal or early section}^{the action area t}^{hat ha}^{ve already}^undergone^{formal or}
^{7 cons}^{ultation, and the impact of}^{State or private actions}^{early section 7 cons}^{ultation, and the impact of State or}
^{which are}^contempora^{neous wit}^{h the}^{consultation in}^{private actions whic}^{h are co}^ntem^{poraneous wit}^{h the}
^{process. Indirect e}^ffects^{are t}^{hose that are}^caused^{by t}^he^{consultation in process. I}^ndirect^{effects are}^those^for
^{proposed action and are}^{later in}^{time, but}^{which the p}^rop^{osed action}^{is an essential cause,}
^{and that}^{are later in}^{time, but st}^{ill are reasonably}
^{still are reasonably certain to occ}^{ur. Inte}^{rrelated actions}^{certain to occur.}^If^{an effe}^{ct will occ}^ur^{whether or}
^{are those t}^{hat are}^{part of a large}^r^{action and depend o}ⁿ^{not the action takes place, the action is not an}
^{the larger action for t}^{heir justifica}^{tion. Interdepende}^nt^{essential cause of the indirect effect. Reasonably}
^{actions are those t}^{hat hav}^{e no in}^dependent^{utility apart}^{certain to oc}^cu^{r is the standa}^{rd used to}
^{from the action}^under^considerat^ion.^{determine the requisi}^{te confidence that an}
^{effect will happen. A}^con^{clusion that an ef}^{fect is}
^{reasonably certain to}^oc^cu^r^{must be based on}
^{clear and s}^{ubstantial inform}^a^tion.^Interrelated
^{actions are those t}^{hat are}^{part of}^{a larger action and}
^{depend on t}^{he larger action for}^t^{heir justification.}
^Interdep^endent^{actions are t}^hose^{that hav}^{e no}
^independent^{utility apart from t}^h^e^{action under}
^{consideration.}
^{Section 7 and the}^req^uireme^{nts o}^f^{this pa}^{rt ap}^{ply to all}^(a)^{Section 7 and t}^{he r}^e^q^uiremen^{ts of this pa}^{rt ap}^{ply to}
^{actions in which t}^{here is discreti}^{onary Federal}^{all actions in which}^{the Federal agency has}
^{involvement or control.}^{discretionary involvement or con}^trol.
^{(b) Federal agencies are n}^{ot required to c}^onsult
^{on an}^action^{when the direct}^{and indirect effects}
^{of that action}^{are n}^{ot anticipated to result in}
^{take and:}
^{(1) Such a}^{ction has}^{no ef}^{fect on a listed species}
^{or c}^{ritical habitat; or}
^{(2) The effects of s}^uch^action^{are manifested}
^{only throu}^{gh glo}^{bal pr}^ocesse^{s and (i)}^cann^{ot be}
^{reliably predicted or measur}^{ed at the local}
^{scale, or}
^{(ii)would result at most in an}^extreme^{ly small,}
^{insignificant local imp}^{act, or}^{(iii) are such that}
^{the potential risk of harm to}^{species or ha}^{bitat is}
^{remote; or}
^{(3) The effects of s}^uch^action^:
^{(i) A}^{re not ca}^{pable of}^{being meaningf}^ully
^{identified or detected in a manner that permits}
^{evaluation; or}

^{Previous Version of}^Title
^{50 C.F.R.}^{Final Version}
^{(ii) Are w}^{holly beneficial.}
^{(c) If}^{all of the effects o}^f^an^a^{ction fall within}
^parag^raph^(b)^{of this section,}^{then no}
^{consultation is required}^fo^{r the action. If}^{one o}^r
^{more but n}^{ot all of the effect}^{s of a}ⁿ^action^fall
^{within parag}^rap^{h (b)}^{of this s}^{ection, then}
^{consultation is required}^only^{for th}^{ose effects of}
^{the action that do n}^{ot fall within para}^gra^{ph (b}⁾
^{of this section.}
^{(a) Informal consultation is an op}^{tional process that}^{(a) Informal consultation is an op}^{tional process that}
^{includes all discussions, correspondence, etc., betwee}ⁿ^{includes all discussions, correspondence, etc., betwee}ⁿ
^{the Service and t}^{he Federal agenc}^{y or the designated}^{the Service and t}^{he Federal agenc}^{y or the designated}
^{non-Federal repres}^{entative, designed to assist the}^{non-Federal repres}^{entative, designed to assist the}
^{Federal agency in determining}^wh^{ether formal}^{Federal agency in determining}^wh^{ether formal}
^{consultation or a confere}^{nce is}^r^{equired. If du}^ring^{consultation or a confere}^{nce is}^r^{equired. If du}^ring
^{informal consultation it is determined by the}^Federal^{informal consultation it is determined by the}^Federal
^{agency, with the}^{written co}^ncur^r^{ence of th}^{e Service, that}^agency,^[^{with the written concurren}^{ce of the Service,}^]^that
^{the action is not likely to adversely affect listed species}^{the action,}^{or a}^num^{ber o}^f^{similar actions, an}
^{or critical habitat, the consultation proces}^{s is terminated,}^{agency pr}^og^{ram, o}^r^{a segme}^{nt of a}
^{and no fu}^rthe^{r action is nece}^ssar^y.^comp^{rehensive plan,}^{is not lik}^{ely to adversely affect}
^{listed species or critical habitat, the cons}^ultation
^{(b) During}^{informal cons}^{ultation, the Service may}^{process is termi}^{nated, and no f}^u^r^{ther action is}
^{suggest modifications to the action that t}^{he Federal}^necessar^y^{if the Service con}^cu^{rs in writing}^.^{For all}
^{agency and a}^{ny a}^{pplicant could implement to avoid the}^{requests for in}^form^{al co}^{nsultation, the Federal}
^likel^{ihood of adverse effects to listed species or critical}^{agency shall c}^{onsider the effe}^{cts of the action}^as
^habitat.^{a whole o}ⁿ^{all listed species a}^{nd c}^{ritical habitats.}
^{(b) If the Service has n}^{ot pro}^{vided a written}
^{determination regarding}^wh^{ether it concurs}
^{with a Federal agency’s determination pr}^ovided
^{for in}^para^gra^{ph (a}^{) o}^f^{this section within 60}
^{days followin}^{g the date of th}^{e Federal agency’s}
^{request for}^concurre^nce^the^F^{ederal agency may,}
^upon^{written notice to the Service, terminat}^e
^{consultation. The Service may, upon w}^ritten
^{notice to the Federal agency within the 60-day}
^{period, extend the t}^{ime for infor}^mal
^{consultation f}^or^{a period}^no^{greater than an}
^{additional 60 days from}^{the end of}^{the 60-day}
^{period. If the Federal agency}^terminates
^{consultation at the end o}^f^th^{e 60-day period, or}
^{if the Service’s}^ext^{ension period expires without}
^{a written statement wheth}^{er it conc}^{urs with a}
^{Federal agency’s determinati}^{on p}^{rovided fo}^{r in}
^parag^raph^(a)^{of this section,}^{the consultation}
^{provision in section 7(a)}^{(2) is satisfied.}
^{(c) Notwithstanding the p}^rov^{isions of p}^ara^grap^h
^{(b), the Service, the}^Federal^{agency, and the}
^{applicant, if one is involved, may agree to}
^ext^{end inform}^{al co}^{nsultation for}^{a specific}^time
^{period in o}^{rder to}^{resolve co}^nsultation
^{informally and}^{allow the Service to con}^cur^with

^{Previous Version of}^Title
^{50 C.F.R.}^{Final Version}
^{the Federal agency’s not like}^l^y^{to adversely}
^{affect determination.}
^(d)^{During i}^{nformal consultation, the Service may}
^{suggest modifications to the action that t}^{he Federal}
^{agency and a}^{ny a}^{pplicant could implement to avoid the}
^likel^{ihood of adverse effects to listed species or critical}
^habitat.
^(a)^{Requirement for formal consultation.}^Each^Federal^(a)^{Requirement for formal consultation.}^Each^Federal
^{agency s}^{hall review its actions at the earliest possible}^{agency s}^{hall review its actions at the earliest possible}
^{time to determine whet}^{her a}^{ny a}^{ction may affect listed}^{time to determine whet}^{her a}^{ny a}^{ction may affect listed}
^{species or critical habitat. If s}^u^c^h^{a determination is}^{species or critical habitat. If s}^u^c^h^{a determination is}
^{made, formal consultation is requ}^{ired, except as}^{noted in}^{made, formal consultation is requ}^{ired, except as}^noted
^paragra^{ph (b) of t}^{his section. The}^{Director may req}^{uest a}^{in paragra}^{ph (}^{b) of this section. The Director may}
^{Federal agency to enter}^{into cons}^{ultation if he identifies}^reque^{st a Federal agency}^{to ente}^{r into consultation if}
^{any action of that}^agency^{that ma}^{y affect listed species or}^{he identifies any action of t}^{hat ag}^{ency t}^{hat may af}^fect
^{critical habitat and for whic}^{h the}^r^e^has^been^no^{listed species or critical habitat and for which}^the^{re has}
^{consultation. When s}^{uch a}^req^ue^{st is made, the Director}^been^{no consultation. When}^suc^h^{a req}^{uest is made,}
^{shall forward to the Federal agen}^{cy a written e}^xplanation^{the Director shall forward to the}^{Federal agency a}
^{of the basis}^{for the}^req^uest.^{written ex}^{planation of the}^{basis f}^{or the re}^quest.
^(b)^Exceptions.^{(1) A}^{Federal agen}^{cy need}^{not initiate}^(b)^Exceptions.^{(1) A}^{Federal agen}^{cy need}^{not initiate}
^{formal consultation if, as a result}^{of the p}^{reparation of a}^{formal consultation if, as a result}^{of the p}^{reparation of a}
^biolog^{ical assessment u}^{nder Sec.}^402.^{12 or as}^{a res}^{ult of}^biolog^{ical assessment u}^{nder Sec.}^402.^{12 or as}^{a res}^ult
^{informal consultation with the Se}^{rvice unde}^{r Sec. 40}^2.13,^{of informal consultation with the}^{Service under Sec.}
^{the Federal agency dete}^{rmines, w}^{ith the writte}ⁿ^402.^{13, the}^{Federal agency deter}^mines^[^{with the written}
^concur^{rence of t}^{he Director, tha}^{t the p}^{roposed action is}^{concurrence of the Director}^]^{, that the p}^{roposed action is}
^{not likely to adversely affect any l}^{isted species or critical}^{not likely to adversely affect any l}^{isted species or}
^habitat.^{critical habitat}^{, and the Director co}^nc^{urs in}^writing
^{or inf}^ormal^cons^{ultation has}^{been completed}
^{{sections (c) - (k) omitted}}^under^§^402.1^{3(b) without a}^written^sta^temen^t
^{by the Service as to whether it concu}^rs;^{sections
^{(c)-(k) unmodified}}

The National Fire Plan, part of the Healthy Forests Initiative, is administered primarily by the ¹⁰²
Bureau of Land Management (BLM) and the Forest Service (FS). 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 ¹⁰³
adversely affect a listed species. These regulations were issued under the provision for ¹⁰⁴
counterpart regulations, 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 ¹⁰⁵
of experience with these counterpart regulations (FY2004). 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;
• 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

¹⁰²^T^h^e^N^a^tiona^{l Fir}^e^Plaⁿ⁽^N^F^P⁾^s^t^a^r^te^{d a}^s^a^r^e^s^pons^e^by^the^C^lintoⁿ^A^d^mⁱ^nis^t^r^a^{tion t}^o^t^h^e^s^e^v^e^r^e^fⁱ^r^e^se^a^s^{on of}²⁰^00.
^I^t^w^a^s^prⁱ^m^a^r^il^y^a^r^e^que^s^t^f^o^r^s^upple^m^eⁿ^ta^{l a}^ppr^opr^ia^ti^ons^f^o^r^w^ild^fⁱ^r^e^s^uppr^e^s^sⁱ^{on a}ⁿ^{d a}^d^diti^ona^{l w}^ildfⁱ^r^e^f^u^e^l
^r^e^duc^tio^{n, a}ⁿ^{d w}^a^s^la^r^g^e^l^y^eⁿ^ac^{ted in}^the²⁰⁰¹^Iⁿ^te^rⁱ^or^a^p^pr^o^p^rⁱ^a^tio^ns^a^c^t^{. C}^o^ng^r^e^s^s^ha^s^pr^ov^ide^d^f^uⁿ^d^s^a^t^m^u^c^h^hig^h^e^r
^le^v^e^{ls sinc}^e^theⁿ^{. F}^o^llowⁱ^ng^the²⁰⁰²^fⁱ^re^se^a^s^{on, the}^B^u^{sh A}^d^mⁱ^nistra^tion^pro^pose^d^th^e^He^a^lthy^For^e^{sts Initia}^tiv^e^to
^e^x^pa^{nd the}^NF^P.^Porti^ons^of^the^Iⁿ^itia^tiv^e^w^e^re^eⁿ^a^c^t^e^dⁱⁿ^t^h^e^He^a^lthy^Fore^{sts Re}^stora^{tion A}^c^{t (}^P^.L^.¹⁰⁸^-1^48).^Othe^r
^por^ti^ons^{to e}^x^pe^di^te^f^u^e^l^r^e^duc^tio^{n e}^f^f^o^r^t^s^w^e^r^e^ef^f^e^c^t^e^d^thr^oug^{h r}^e^g^u^la^tor^y^c^h^aⁿ^g^e^s^,^one^of^w^h^ic^{h w}^a^s^the^ESA
^c^ounte^r^pa^r^t^r^e^g^u^la^tio^ns^e^x^am^ine^d^{in t}^h^is^a^ppe^ndix^.^For^m^o^r^e^inf^o^r^m^a^{tion a}ⁿ^{d a}ⁿ^a^l^y^s^is^{on t}^h^e^N^F^P^aⁿ^{d the}^H^e^a^lthy
^Fore^{sts Init}^ia^tiv^e^,^{CRS Re}^por^{t RL}³³⁷⁹²^,^Fe^de^r^a^{l L}^aⁿ^d^s^M^aⁿ^age^d^b^y^the^Bur^e^a^u^{of L}^aⁿ^d^M^aⁿ^age^m^eⁿ^t⁽^B^LM⁾^and^the^th
^Fo^{rest S}^e^{rvice (}^F^S^{): Issu}^{es fo}^{r the 1}¹⁰^C^o^ngr^e^s^s^{, by}^Ros^s^W^.^G^o^rte^e^t^a^l^.
¹⁰³^{50 C}^.^F.R^.^§⁴⁰^2.^31.^Se^e^D^e^f^e^nde^r^s^of^W^ildlif^e^v^.^K^e^m^p^thor^ne^{, 2}⁰⁰⁶^w^l²⁸⁴⁴²³²⁽^D^.D^.C^.^Se^pte^m^be^r^29,²⁰⁰⁶⁾
^(u^ph^o^l^dⁱⁿ^g^t^h^{e regu}^l^a^tⁱ^oⁿ^s^b^ecau^s^e^o^f^t^h^{e ro}^l^e^pl^ay^ed^b^y^t^h^{e S}^e^rvi^ces).
¹⁰⁴^T^h^e^othe^r^c^o^unte^r^pa^r^t^r^e^g^u^la^tioⁿ^is^s^u^e^d^{, f}^o^r^E^P^A^pe^s^tic^id^{e l}ⁱ^cen^si^ng,^w^a^{s ru}^l^e^d^{as vi}^o^l^atⁱⁿ^{g t}^h^{e E}^S^A^.^W^a^shⁱⁿ^gt^oⁿ
^T^o^xⁱ^c^s^Coa^{lition v}^.^E^P^A^,⁴⁵⁷^F.^Sup^p^.^2d¹¹⁴⁸^(W^{.D. W}^a^{sh. 20}⁰⁶^).
¹⁰⁵^N^M^FS,^FW^{S, FS}^{, a}ⁿ^{d BL}^M,^U^s^e^{of t}^h^e^ES^{A Se}^c^tⁱ^on^{7 C}^o^uⁿ^te^r^par^t^Re^gul^ati^ons^f^o^r^Pr^o^j^e^c^t^s^that^S^u^p^por^{t t}^h^e
^N^a^tio^nal^Fir^e^Pl^an:^Pr^ogr^am^Re^vⁱ^e^w^:^Ye^ar^Oⁿ^e⁽^J^a^nua^r^y^11,²⁰⁰⁸⁾⁽^h^e^r^eⁱ^na^f^t^e^r^{ESA/NFP Re}^vⁱ^e^w^).^Avai^l^a^b^l^{e o}ⁿ^lⁱⁿ^{e at}
^http:^//www^.nm^f^s.noa^a^.^g^o^v^/^pr/^pdf^s/la^ws/f^ire^p^la^nre^v^ie^w^.^pdf^.

• use the best available scientific and commercial data.¹⁰⁶
NMFS and FWS constructed separate analyses of the results. Table A-1 is the summary of the 10
projects involving species under NMFS management; Table A-2 and Table A-3 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 ¹⁰⁷
scientific information.
Table A-1. Number of Projects Reviewed by NMFS that Did Not Meet Specified
Criteria
^{(FS: 9 projects; BLM: 1 projec}^t)
^Produ^ct/Criterion^{Yes No}
^{Procedural Checklist was su}^bmitt^{ed with BA}⁹¹
¹^{Identifies proposed actions clearl}^{y (includes a description of vario}^{us compone}^{nts of t}^{he action)}¹⁰
²^{Identifies spatial and temporal}^pat^{terns of t}^{he action’s direct and in}^{direct environmental ef}^fects,
^{including direct and indirect effe}^c^{ts of interrelated and inte}^rdepen^{dent actions}¹⁰
³^{Identifies Action Area clearly (ba}^{sed on information in 2)}¹⁰
⁴^{Identifies all threatened a}^{nd enda}^{ngered sp}^{ecies and a}^{ny designate}^{d critical habitat that may}^be
^{exposed to the}^{proposed action}^{(includes a description of spatial, temporal, biolog}^ical¹⁰
^{characteristics a}^{nd constitue}^{nt ha}^{bitat elements a}^pprop^{riate to the}^{project assessme}^nt)
⁵^{Compares the}^{distribution of pot}^{ential effects (identified in 2) with}^{the Threat}^{ened a}^{nd endange}^red
^{species and designated c}^{ritical habitat (identified in 4) and establishes, using t}^he^{best scientific a}^nd¹⁰
^{commercial data available that (a) exposu}^{re is impro}^{bably or (b) if}^exposu^{re is likely, responses are}
^{insignificant, discountable, or wh}^{olly beneficial}
⁶^{Determination is based on}^{best a}^{vailable scientific and commercial information}¹⁰
^Source:^{ESA/NFP Review, p. 12.}
FWS analyzed 50 projects.¹⁰⁸ (See Table A-2 and Table A-3.) 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; ¹⁰⁹
those measures involved oversight and further training of personnel by the Action Agencies.

¹⁰⁶^ESA/NF^{P Re}^vⁱ^e^w^,^p.^2.
¹⁰⁷^NM^F^S^f^o^un^d^t^h^at^b^o^t^h^A^c^tⁱ^oⁿ^A^g^en^ci^{es su}^cce^ed^edⁱⁿ^t^h^{e si}^xt^h^cri^t^eri^oⁿ^:^s^u^mm^ari^zⁱⁿ^{g t}^h^ei^{r o}^wⁿ^actⁱ^oⁿ^s^cl^earl^y^.
¹⁰⁸^T^h^ere^w^e^{re 9}^ad^dⁱ^tⁱ^oⁿ^a^l^F^S^pro^j^e^c^t^s^t^h^atⁱⁿ^cl^u^d^e^{d NM}^F^S^sp^eci^{es an}^d¹^addⁱ^tⁱ^oⁿ^a^l^BL^M^pro^j^ect^t^h^atⁱⁿ^cl^ud^ed^NM^F^S
^sp^eci^es.^Resu^l^t^s^f^o^{r t}^h^o^s^{e pro}^j^ect^s^{are sh}^o^wⁿⁱⁿ^t^h^{e NM}^F^S^t^a^b^l^e.
¹⁰⁹^ESA^/^N^P^A^R^e^vⁱ^ew^{, p. 21-}²³^.

Table A-2. Number of Projects Reviewed by FWS
that Did Not Meet Specified Criteria
^{(Forest Service:}^{43 projects; BLM: 7 projects)}
^{Criterion fro}^{m Evaluation Fo}^rm
^(Appendix^{3 of Alternative Consultation Ag}^reement)^{Forest Service}^BLM
¹^{Identified proposed action}⁸⁵
²^{Identified Direct/Indirect/ Inte}^rre^{lated/ Interdepe}^{ndent actions}¹²⁶
³^{Identified Action Area}¹⁶⁴
⁴^{Identified all T&E Species and/or Critical Habitat}¹⁰³
⁵^{Determined likelihoo}^{d of exposu}^{re to effects}¹⁶⁴
⁶^{Determination was based on}^bes^{t available data}¹¹⁴
^Source:^{ESA/NFP Review, p. 19.}
^Note:^Co^{lumns can}^{not be added}^becau^{se differen}^{t projects}^{had va}^{rying n}^umbe^{rs of deficiencies am}^{ong 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.
Table A-3. Total Number of Criteria Missed,
by Project for FWS Species
^{Number of}^{Criteria Missed}^{Forest Service}^BLM
^{No Criteria Missed}⁶⁰
^{1 to 5}^Missed¹⁹⁶
^{Missed All 6 Criteria}¹⁸¹
^{Total 43}⁷
^Source:^{ESA/NFP Review, p. 21-}^23.

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 ¹¹⁰
land in northwestern New Mexico. 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.
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.

¹¹⁰^{It is n}^o^{t c}^l^e^a^r^w^h^e^t^he^{r this}^tim^e^lⁱⁿ^e^{is ty}^pic^a^l^of^Se^c^ti^{on 7}^c^ons^ulta^tions.^{It w}^a^{s c}^hoseⁿ^f^o^{r the}^re^a^d^y^a^v^a^ila^bility^o^f
^r^e^le^v^a^{nt doc}^um^eⁿ^ts^a^{nd t}^h^e^r^e^c^o^r^d^of^pr^otr^a^c^t^e^d^dis^c^us^sⁱ^ons^be^tw^ee^{n a}ⁿ^A^c^{tion A}^g^eⁿ^cy^a^{nd FW}^S—^a^s^c^eⁿ^a^r^{io tha}^t^m^a^y
^be^a^f^f^e^c^t^e^d^by^the^de^a^d^line^s^pr^o^p^o^s^e^{d in}^the^ne^w^r^e^g^u^la^tions^{. F}^o^rⁱⁿ^f^o^r^m^a^{tion o}ⁿ^c^o^ns^ul^ta^tio^{n o}ⁿ^t^h^e^D^e^s^e^r^t^R^o^c^k
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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.
^Kr^istiⁿ^a^A^l^ex^aⁿ^d^e^r ^{M. Ly}ⁿⁿ^{e C}^o^rn
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