Consultation: Avoiding Jeopardy and Habitat Modification

Section 7 of the Endangered Species Act requires all federal agencies to ensure that their actions are not likely to jeopardize listed species or destroy or adversely modify their critical habitat. Agencies proposing projects will consult with the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to determine whether their projects comply with this standard. The FWS and NMFS produce a biological opinion, which must be based upon the best available science, that evaluates a project's effects and determines whether jeopardy or adverse modification will occur. According to federal regulations, a project jeopardizes the continued existence of a listed species if it reasonably would be expected to appreciably reduce the likelihood of the species' survival and recovery.

PRC follows federal agency projects and gets involved when we see agencies engaging in projects that will cause significant damage to aquatic ecosystems, and when the agency has not sufficiently demonstrated that the project will not cause jeopardy to a listed aquatic species. In fact, one of PRC's landmark victories, PRC v. Thomas, was a case about the duty to consult.

For more information about PRC consultation cases, read about our case against the Western Oregon Plan Revisions, which challenged the BLM for failing to consult with the FWS and NMFS before issuing the final plans. The Obama administration withdrew the WOPR, recognizing that failing to consult was legally indefensible.

Read about our challenge to the Rock Creek Mine in Montana, which threatened significant damage to bull trout. The court vacated the Forest Service's approval of the mine in a case joined with ours.

Read about our successful challenge of the roadless rule repeal, in which the district court concluded that the Forest Service should have consulted with the FWS and NMFS when it repealed the roadless rule because that action may affect listed species.

The Bush Administration pushed through damaging last minute consultation regulations; Obama stepped in and withdrew them.

FWS and NMFS finalized regulations in the last days of the Bush administration that allowed agencies to make certain determinations about the effects of their actions on listed species without consulting with FWS and NMFS. Read the final regulations.

Read PRC's comments on the proposed regulations, which argue that the proposed regulations place too many burdens on listed species and are not consistent with the language of the ESA. We also submitted comments on the draft Environmental Analysis for this proposal, disputing the argument that these changes are purely procedural with no substantive effect.

On March 3, 2009, President Obama stepped in and issued a memorandum requesting the FWS and NMFS to reconsider the last minute regulations and to follow the previous consultation regulations in the meantime. As Obama explained in his remarks to the Department of the Interior,

"Finally, today I've signed a memorandum that will help restore the scientific process to its rightful place at the heart of the Endangered Species Act, a process undermined by past administrations. The work of scientists and experts in my administration -- including right here in the Interior Department -- will be respected. For more than three decades, the Endangered Species Act has successfully protected our nation's most threatened wildlife, and we should be looking for ways to improve it -- not weaken it."

On April 28, Secretary of Commerce Gary Locke and Secretary of the Interior Ken Salazar announced that the two departments are revoking the Bush regulations. This is a great win for endangered species, and Obama, Locke, and Salazar all deserve commendation for this action. Read a conservation group letter in support of strong consulation regulations, written in response to a public comment period that was opened when the Bush regulations were revoked.