The U.S. Fish and Wildlife Service and National Marine Fisheries Service (Services) issued final rules that change federal interagency consultations under Section 7 of the Endangered Species Act (ESA). Key among these rule changes is a new compensatory mitigation provision that allows the Services to prescribe compensatory mitigation or offsets deemed “reasonable and prudent” for minimizing the impact of incidental take on listed wildlife. Other changes loosen interpretation of the “reasonably certain to occur” standard for identifying effects of an action subject to analysis.
WHY DO THESE CHANGES MATTER?
The new compensatory mitigation provision upends decades of prior practice and regulatory interpretation and may add cost, time, and complexity to the consultation process.
- The Services now have discretion to decide when offsets are necessary, as well as the amount and form of those offsets, as a mandatory term and condition of an incidental take statement.
- Offsets, if prescribed, would be subject to the recently finalized ESA Compensatory Mitigation Policy that specifies benchmarks and performance criteria to ensure that mitigation is effective and durable.
- The Services note that offsets should be in place before the impact-causing action proceeds.
- Service-prescribed offsets may include actions outside of the action area evaluated in consultation.
The changes removed regulatory language regarding how to interpret whether activities or consequences are “reasonably certain to occur,” potentially increasing the scope of analysis.
- The Services have instead offered to provide more guidance in a new or revised Consultation Handbook in the future.
- The Services reversed their position on the standard of evidence required for a consequence to be deemed “reasonably certain to occur.”
WHAT HAPPENS NEXT?
These changes will become effective May 6, 2024, and will be applicable to new consultations and reinitiations. Actions presently in the consultation process (i.e., those with a Biological Assessment in preparation or when consultation has been initiated but not concluded) would be subject to the new rules. These changes will not apply to completed consultations where reinitiation has not been triggered.
Running consultation timelines may be reset if analyses require substantial modification to comply with the new rules. Coordination with your federal agency representatives will be essential to an efficient transition to the new requirements and standards.
Additional guidance for completing the consultation process is expected in a new or updated Consultation Handbook, but the anticipated publication date is not known.
LEARN MORE AND GET INVOLVED
SWCA can help you understand what the rule changes might mean for your projects.
SWCA CAN HELP
Reach out to your project manager or to one of SWCA’s regulatory specialists for more information, insights, and strategies to keep your projects on track.
%20stephanie [dot] graham [at] swca [dot] com (Stephanie Graham) | Senior Ecologist, Great Basin Region
%20kwabnitz [at] swca [dot] com (Kely Wabnitz) | Senior Project Manager, Midwest/Northeast Region
%20egladding [at] swca [dot] com (Eleanor Gladding) | Lead Biologist, Southwest Region
%20NSmolensky [at] swca [dot] com (Nicole Smolensky) | Lead Biologist, Central/East Region
%20AGlen [at] swca [dot] com (Amanda Glen) | Natural Resources Technical Director, Biological Services, ESA Services