By W. Parker Moore
Be careful what you ask for. That old standby bears repeating with the recent proposal of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) to amend their Endangered Species Act (ESA) regulations to provide greater flexibility when developing Incidental Take Statements (ITSs) for projects. By formalizing the Services’ use of “surrogates” in ITSs to determine the anticipated level of take of listed species and estimate takes that result, the proposal could streamline project development in some circumstances. If drafted inartfully, however, the new rule could lead to more problems than solutions.
The ITS program is straightforward in design. The ESA requires federal agencies to consult with the Services before doing anything (issuing a permit, approving a project, funding an activity) that may result in the take of a listed species. That consultation produces a biological opinion (BiOp) identifying the expected impact on protected species. If the BiOp concludes that the proposed action is not likely to jeopardize the species, then the Services may issue an ITS describing the amount or extent of “incidental take” anticipated, imposing conditions on the activity to minimize its impact, and requiring monitoring of that impact so that the Services may reinitiate consultation if the impact is greater than expected.
Unfortunately, despite its uncomplicated design, the ITS program often is complicated to implement. Over the years, the Services have had trouble developing ITSs for certain types of activities and for certain species when the nature of the activity and/or species at issue makes it difficult to detect or monitor take of individual animals. The process is further complicated when the expected impact of the activity is indirect or delayed (e.g., impacts from habitat degradation), rather than direct and immediate.
To address these problems, the Services began using “surrogates” in ITSs when they concluded that it would be too difficult to monitor the amount of incidental take from an activity and thus determine when consultation should be reinitiated. So, for example, instead of requiring a company to quantify the precise number of owls taken during logging, the ITS would require the company to monitor the area of owl habitat impacted. This helped to expedite the ITS process for those difficult projects. But it also drew the ire of environmental groups, which began challenging BiOps supported with surrogate-based ITSs.
On September 4, 2013, the Services made a move to sure up their position by proposing to codify the surrogate policy in their ESA regulations. 78 Fed. Reg. 54437 (amending 50 C.F.R. § 402.02). The proposed rule would establish standards for using surrogates – such as a species’ habitat or similarly affected species in the project area – in ITSs “to express the amount or extent of incidental take” from an action. Specifically, it would support the use of a surrogate as long as the ITS (1) describes “the causal link between the surrogate and take of the listed species,” (2) describes why it would not be practical to express the amount or extent of anticipated take or to monitor take-related impacts in terms of individuals of a listed species, and (3) sets forth “a clear standard” for determining when the extent of take has been exceeded.
The Services’ proposal presents a good news/bad news situation for industry. The good news is that formalizing the use of surrogates in appropriate ITSs could eliminate some of the delays associated with the ESA’s consultation process. That could allow projects to progress more quickly and begin to free up agency time and resources, which the Services could direct towards the next projects in the queue. And in the abstract, codifying the policy in binding regulations should make it easier for the Services to defend BiOps with surrogate-based ITSs in court. Thus, the proposed rule could provide some measure of certainty to projects proponents.
But the potential bad news should not be overlooked. Setting defined standards for using surrogates in ITSs will provide opponents with ready-made lawsuits for challenging Service decisions and the projects they cover. And because it is reasonable to expect the Services to use surrogates in the ITSs for more projects once the policy is formalized, it also is reasonable to expect that surrogate opponents will file more lawsuits. Compounding the problem, the Services have not elaborated on the three conditions that would justify using surrogates in an ITS. If they fail to do so when issuing the final rule, significant additional delays and uncertainty likely would result as courts scramble to answer the myriad questions raised in opponents’ lawsuits: What constitutes a sufficient “causal link” between the surrogate and the taken species? What level of impracticality must the Services demonstrate before using surrogates? What constitutes a “clear standard” for evaluating the level of take?
Moreover, there is a concrete risk that the Service’s rulemaking will cause them to look to surrogates inappropriately when making other ESA decisions. It is not hard to imagine the Services trying to use surrogates alone to decide whether a proposed action might take a species, and thus whether an ITS is needed in the first place. Nor is it hard to imagine the Services attempting to repackage information collected from monitoring effects to a surrogate used for evaluating impacts to a particular species from one project as evidence of impacts to that species, or even other species, from an unrelated project.
Outside of the ITS process, the potential pitfalls may be more troubling. The Services already have attempted to use surrogates (in particular, temporary habitat modification) to presume that a listed species will be taken by a project, to impose substantial mitigation requirements on projects, and to require detailed environmental analyses under NEPA for activities that should qualify for categorical exclusions.
For all of these reasons, it is important for entities that rely on incidental take authorizations for their projects to weigh in on the proposal. Their input on problems with the proposed rule will help to educate the Services about the potential real world implications and hopefully avoid the misuse of an otherwise promising policy. And their input on the aspects of the proposal they support will help to counter the criticisms of opponents, who already have begun rattling their sabers while vowing to marginalize the Services’ use of surrogates in ITSs.
Comments on the proposed rule are due November 4, 2013.
W. Parker Moore is a principal with Beveridge & Diamond, P.C., where he co-chairs the firm’s Environmental Practice Group and its NEPA/Wetlands/ESA Section. His practice focuses on the siting, permitting and defense of projects under NEPA, the Clean Water Act, and the Endangered Species Act.
