Section 7 of the Endangered Species Act (ESA) requires the Army Corps of Engineers (Corps) to consult with the National Oceanic and Atmospheric Administration Fisheries (NOAA) (together “Agencies) before undertaking work or issuing permits to maintain structures that may affect listed species or protected habitat. On January 5, 2022, the Agencies signed a joint resolution memorandum (Memorandum) that provides guidance on whether to include existing structures (such as a dam or a pier) involved in a proposed action as an “effect of the action” or within the “environmental baseline” for the purposes of ESA Section 7 consultation. Depending upon the scope of the “effects of the action,” NOAA may determine that the action will have no effect on ESA-listed species or their critical habitat, that the activity requires a permit for the incidental take, and/or that certain reasonable and prudent measures should be implemented to offset harmful effects.
In August of 2019, NOAA and the Department of the Interior, Fish, and Wildlife Services published a final rule updating the ESA Section 7 implementing regulations that, among other things, created a new, stand-alone definition of “environmental baseline,” making it clear that the “environmental baseline” is a separate consideration from the “effects of the action.” See 50 C.F.R. § 402.02. Under the 2019 ESA regulation, the environmental baseline does not include the “consequences to listed species or designated critical habitat from ongoing agency activities or existing agency facilities that are not within the agency’s discretion to modify … .” 84 Fed. Reg. 45016, 50 C.F.R § 402.02.
The Memorandum and its interpretation of the “environmental baseline” applies to both Corps-managed projects and applicants to Corps-issued approvals, such as Clean Water Act Section 404 dredge and fill permits. Regarding Corps-operated facilities, the existing structures will generally be considered part of the environmental baseline since the facilities are required to be operated and maintained in such a manner required by Congress. However, the manner in which these existing facilities operate and conduct maintenance, repairs, replacements, and rehabilitation is often discretionary and subject to ESA Section 7 consultation as part of the “effects of the action.” Examples of discretionary actions include, for example, changing the timing and frequency of how the Corps operates a fish passage facility and adjusting the timing of in-water construction to comply with an in-water work window to reduce impacts on ESA-listed species.
Additionally, because the Corps has the discretion to issue regulatory permits to federal agencies and private applicants, future effects stemming from the existing structure are not always considered part of the environmental baseline. Instead, the agencies will evaluate, as an effect of the action, what consequences would not occur but for the action and are reasonably certain to occur. If the applicant seeking a Corps’ regulatory permit is another federal agency, and that federal agency lacks the discretion by Congress to modify or cease to maintain or operate an existing agency structure or facility, then the extent of the federal agency applicant’s discretion will be used to define the action.
The Memorandum is meant to provide national-level certainty for how the Agencies will approach ESA Section 7 consultations for existing structures. Based on the Memorandum, the scope of the “effects of the action” and “environmental baseline” continues to be a case-by-case analysis based on the specific considerations of the proposed action and the implicated existing structures.