Consultation Under the Endangered Species Act

1. Consultation Under the Endangered Species Act Garwin Yip, NOAA Fisheries Service, Southwest Region

2. Interagency Cooperation: Section 7(a)(2) • Section 7(a)(2) of the Act requires every Federal agency, in consultation with and with the assistance of the Secretary, to insure that any action it authorizes, funds, or carries out, in the United States or upon the high seas, is not likely to jeopardize the continued existence of any listed species or results in the destruction or adverse modification of critical habitat. • In fulfilling the requirements of this paragraph, each agency shall use the best scientific and commercial data available.

3. Defining the “Jeopardy” Standard Jeopardize the continued existence of: to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.

4. “Destruction or Adverse Modification” • The existing regulatory definition of “destruction or adverse modification” of critical habitat at 50 CFR 402.02 has been invalidated by several court cases (in 5th, 9th, and 10th Circuit Courts) • The Services use the statutory provisions of the ESA to complete the analysis with respect to critical habitat.

5. “Destruction or Adverse Modification” • The Services evaluate “destruction or adverse modification” of critical habitat by determining if the action results in the direct or indirect alteration that appreciably reduces the conservation value of critical habitat. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.

6. Conceptual Model for Jeopardy Analyses Step 1 Step 6 Assess the Risk to “Species” “Species” Status Step 2 Step 5 Environmental Baseline Effects’ Analysis Assess the Risk to Populations Status of the Populations Step 3 Step 4 Assess the Risk to Individuals “Status” of the Individuals

7. Basic Analytical Model Individual Individual Action Effects Exposure Response Exposure Individual Individual Response Exposure Response Non-listed species or element of habitat

8. Best Available Data • In fulfilling the requirements of the jeopardy standard and adverse modification standard, each agency shall use the best scientific and commercial data available

9. Best Available Data • Generally, data or evidence that are: • Reliable • Explicit • Rational • Objective • Ranges from peer-reviewed to unpublished empirical information, even tribal information

10. When in Doubt… • To bridge gaps in knowledge, or uncertainties: • Clearly state assumptions, including: • Reasoning • Available evidence (including available theory, inference from pattern, and appropriate surrogates) • Address counter-evidence or rebuttals

11. Reasonable and Prudent Alternatives • By statute and regulation, Reasonable and Prudent Alternatives (RPA) must: • Avoid the likelihood of jeopardy or adverse modification • Be consistent with the intended purpose of the action • Be consistent with the scope of the action agency’s legal authority and jurisdiction • Be economically and technologically feasible

12. RPA Development In addition: • Action agency and applicant expertise must be utilized, and • Base RPAs on the key reasons an action is likely to jeopardize or adversely modify.

13. Alternative RPAs • Must meet the regulatory requirements of all RPAs. • Modify the proposed action in a manner that over the short and long term provides habitat conditions for the life history requirements of the species, or does not impede the provision of those habitat conditions.