Department of Commerce Discusses Reform of ESA Consultation in Response to Executive Order 13783
President Trump’s Executive Order 13783 “Promoting Energy Independence and Economic Growth” requires that
“The heads of agencies shall review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. Such review shall not include agency actions that are mandated by law, necessary for the public interest, and consistent with the policy set forth in section 1 of this order.”
This Executive Order establishes deadlines for publishing the agencies’ Report on this review.
The U.S. Department of Commerce’s EO 13783 Report states the following with regard to interagency consulting under section 7 of the Endangered Species Act. While the following statements are focused on energy projects, the Report emphasizes, “The Department’s review has led to the following proposals, most of which have broad application to other industry sectors”:
1. Centralized Monitoring and Accountability for Permitting, Authorizations, and Consultations NMFS will designate an officer within its Headquarters (HQ) Office of Protected Resources to track consultation, authorization, and permit compliance times. This officer will also be available should a permit applicant have concerns regarding the process that it feels is not being adequately addressed by NMFS’ Regional Offices. The HQ Officer will create appropriate compliance reporting documents and provide reports to the Assistant Administrator for NMFS (NMFS AA), a member of the Energy Subcommittee, regarding the timeliness of permitting and consultation activities. Specifically, the NMFS AA will be notified of any:
a) case whereby it has taken NMFS longer than 60 days to notify an applicant regarding the completeness of a package seeking initiation of consultation under the ESA;
b) case whereby it has taken NMFS longer than 90 days to finalize an informal consultation under the ESA following receipt of a complete initiation package;
c) case whereby it has taken NMFS longer than 270 days to finalize a formal consultation under the ESA following receipt of a complete initiation package….
2. Review of ESA Informal Consultation Deadlines The ESA sets forth specific deadlines for conducting formal consultations under Section 7 of the ESA. However, there is no specific deadline in statute or regulation for informal consultations, which are appropriate for actions that may affect but are not likely to adversely affect a listed species or its designated critical habitat. Further, NMFS has not provided for itself or applicants any guidance on how long an informal consultation should take. Moving forward, NMFS will consider issuing a policy establishing that informal consultations should be done within 60 days from the receipt of an adequate request for the initiation of informal consultation and that informal consultations not completed within 60 days will be brought to the attention of the NMFS AA for appropriate action as described in in the above paragraph.
3. Improvements in Timely ESA Consultations As indicated above, NMFS processes ESA actions through three types of consultations: informal consultations, formal consultations, and programmatic consultations covering thousands of projects that might otherwise be a mixture of formal or informal consultations if addressed individually. NMFS completes 1200-1500 individual informal consultations per year and approximately 315 formal consultations. In addition, NMFS addresses approximately 22,000 actions through over 100 programmatic consultations. The approximate average time to review actions covered by programmatic consultations is 10 days. For informal consultations, 36% are currently completed within 30 days and 61% are completed within 90 days. There are approximately 46 informal consultations that have been open for over 200 days. The average time to complete a formal consultation is 211 days. There are numerous reasons for the existing delays in processing both formal and informal processing consultations, including budget and staffing issues. Nevertheless, NMFS has committed to an average national 25% improvement in processing time for informal consultations through reducing unnecessary review steps in the informal consultation process, increasing the use of programmatic or batched consultations, increased tracking and workforce management to improve timeliness, and potentially seeking legislative amendments to improve efficiency.”
“5. ESA Pre-Listing Conservation Actions In January 2017, the U.S. Fish and Wildlife Service finalized a policy on voluntary prelisting conservation actions, with the intent of facilitating mitigation in advance of listing a species under the ESA. Qualifying projects may receive credits that can be sold or transferred, thereby creating a market for regulatory compliance similar to that conducted for wetland mitigation under Section 404 of the Clean Water Act. NMFS was an early participant in the drafting group that developed the policy but ultimately decided not to issue a similar policy at that time. However, now that the FWS has been in place for several months, NMFS commits to consulting with FWS on the effectiveness and utility of their policy and initiating the process to create a similar policy.
6. Comprehensive Compensatory Mitigation Policy
In addition to pre-listing actions, NMFS is committed to fully implementing the concepts of mitigation banking and crediting in ESA and other contexts. Last year, the FWS proposed a comprehensive mitigation policy to address mitigation banking and crediting across all of their authorities. They have not yet finalized this policy. While NMFS has not proposed a similar comprehensive compensatory mitigation policy, NMFS is continuing to expand its commitment to conservation banking. For example, in California, NMFS is a party to the US Army Corps of Engineers Sacramento District in Lieu Fee program. This program offers permittees an in-lieu fee option to satisfy their compensatory mitigation obligations under the Clean Water Act, the Rivers and Harbors, Act, the ESA, and other laws. NMFS will continue with regional or local efforts of this type while updating its existing conservation banking guidance and developing its own national comprehensive compensatory mitigation policy.”
“8. Consider Use of Endangered Species Committee to Streamline the Application Process Section 7(e) of the ESA authorizes the Endangered Species Committee (“ESC”) to review and exempt certain actions from the ESA’s requirement that agency actions not jeopardize the continued existence of listed species. The statutory process is cumbersome and time consuming adding an additional lengthy process after action agencies have already gone through the consultation process. The Department of Commerce agrees to work with the Department of Interior and the Fish and Wildlife Service to determine whether changes to the joint regulations or the joint Section 7 handbook could streamline this process. Commerce recognizes that the statutory provisions might constrain flexibility on this endeavor but nevertheless commits to reviewing the issue.”