Addressing the Uncertainty and Requirements for Oil Spill Response Consultations

In the U.S., an oil spill response is directed by the FOSC who directs and coordinates all response efforts at the scene of a discharge or release (40 CFR § 300.120 and § 300.135, 1994); these duties are clearly specified in the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The responsible party also plays a significant role in a response; however, the FOSC maintains authority (40 CFR § 300.105, 1994). The FOSC positions are pre-designated by the lead agencies–US Coast Guard (USCG) for the coastal zone and US Environmental Protection Agency (EPA) for the inland zone.² In the role of FOSC, there are several federally-mandated consultation³ requirements that must be met, whether the discharge is on land, on water, or along the shoreline, including:

• The Endangered Species Act (ESA) Section 7 consultations on threatened and endangered species (T&E) and their designated critical habitats;

• The Magnuson-Stevens Fishery Conservation and Management Act (MSA) Essential Fish Habitats (EFH) consultations;

• The National Historic Preservation Act (NHPA) Section 106 consultations for cultural resources;⁴ and

• The Tribal consultation requirements under the NHPA, Executive Order (EO) 13175, and the Native American Graves Protection and Repatriation Act (NAGPRA), where applicable.

Consultations ensure that the FOSC is aware of the resources in the area which are to be protected by these various statutes and that responders work with the resource agencies to minimize impacts and address protected resources affected by the response or the response actions. The consultation mandates apply for: 1) response plans and pre-authorizations as developed by area committees (AC) and the regional response teams (RRT). In accordance with the NCP, all Subpart J pre-authorizations must obtain concurrence from affected states, EPA, and Department of the Interior (USDOI) and Department of Commerce; 2) emergency consultation requirements during response as required for actions not already specifically covered from consultations in regional or area planning; and 3) post incident formal consultations when protected species or critical habitat (ESA, see 50 CFR § 402.05, 1986) or essential fish habitat⁵ (MSA, see 50 CFR § 600.920, 2002) have been affected in any way. These consultations are important for the following reasons: 1) they are required under Federal regulation; 2) they ensure coordinated planning efforts to provide for better protection of our resources during response; and 3) Federal regulation (33 CFR § 154.1045, 1996 and 33 CFR § 155 Section 8 of Appendix B, 2010) requires industry to provide response capabilities for dispersant use where pre-authorization exists.

Many of these consultation requirements are not understood by the FOSC or the response organizations, which results in uncertainty and inconsistencies across the response community and Trustees regarding the initiation and conduct of regulatory consultations for the safeguard of the potentially affected resources. Additionally, due to differences in regional perspectives and lack of national oversight, the Trustee/resource management agencies may have different viewpoints as to how the consultations should be conducted or what details must be included. In some instances the consultation requirements are addressed late in a response after impacts to resources have already occurred. Failure to conduct consultation may result in successful litigation against the FOSC due to violations of Federal statutes⁶ and regulations.

Furthermore, there is variability in the ways in which the AC's and RRT's have addressed the various consultation requirements. Both informal and formal consultations were successfully completed by RRTs and ACs in the late 1990s to meet ESA consultation requirements for dispersant, in-situ burn, and other pre-authorizations; the current status of these pre-authorizations varies by region. Due to several recent legal suits, Alaska has initiated a new consultation, California has engaged in consultation activities with the Services for ESA, and Sector New York / New Jersey was recently served with a 60 day Notice of Intent to Sue for violations of the ESA.⁷ The status of the consultations for EFH, NHPA and Tribal issues (where applicable) vary significantly across the country, from being current to having never been addressed.

There is no consistent national guidance specific to RRT's and FOSC's that addresses how the update of these consultations should be performed as the list of protected or historic resources are updated over time. Action agencies should work with the consulting agencies and parties to update any existing consultations and/or review actions for which consultations have been completed. The current USCG MER Guidance (2013) states that the ESA and EFH updates should be conducted (at a minimum) every three years with the ACP update schedule; however, no instruction is provided for necessary changes that necessitate re-initiation of consultation within the three year cycle. Additionally, NHPA and requirements for Tribal Consultations are not addressed in this guidance.

Consultations require substantial effort and significant personnel and cost expenditures for the Trustee agencies, advisory agencies, and the FOSCs, with assistance from the RRTs and ACPs. This planning burden can be reduced by incorporating the consultation requirements into the planning cycle. Ultimately, FOSCs and RRTs need to be well versed in the mandates, Memorandum of Agreements (MOAs), programmatic agreements (PAs), and existing nationally-standardized guidance and tools that will assist FOSCs with the consultation documents under their purview.

Table 1 summarizes the regulations that require consultation; these are particularly important for federal actions taken during an oil spill response. The FOSC should initiate the federally-mandated consultations for all incidents and must assume that the regulatory requirements are necessary until ruled out or the FOSC must document that he has made a determination of no effect from the action and therefore no consultation is necessary.

The ESA was designed to prevent the extinction of plants and animals and their habitats; providing for the conservation of species that are considered federally threatened or endangered (T&E)⁸ throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend. In 2001, the USCG, EPA, USDOI, USFWS, NOAA and NMFS signed the Interagency Memorandum of Agreement (MOA) Regarding Oil Spill Planning and Response Activities Under the Federal Water Pollution Control Act's National Oil and Hazardous Substance Pollution Contingency Plan and the Endangered Species Act to increase cooperation and coordination among the agencies involved in ESA compliance during a response to an oil spill. The MOA is designed to outline procedures and to streamline the ESA process before, during and after an incident (USCG et al., 2002). The key issues of the Consultation requirements in the MOA and the ESA are summarized below.

The listing of a species makes it illegal to “take.” Take is defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to do these things (50 CFR § 3(19), 2009) any of these protected species, whether endangered or threatened⁹ or adversely modify or destroy designated critical habitat under Section 9 – Prohibited Acts. Section 9 take prohibitions can be exempted for Federal actions via interagency consultation under Section 7 of the ESA. Non-federal actions can be granted a permit for limited take through ESA Section 10 permits. Under the ESA, the FOSC is required to consult with USFWS and NMFS if a Federal action may affect¹⁰ species or their “designated critical habitat”.¹¹ The consultation is on the response actions, not the spill itself.

Depending on the type of effects on ESA listed species and type of consultation needed, the process may take 135 days or more to complete. Section 7 of the ESA addresses the need for consultations in response to emergency situations (defined as acts of God, disasters, casualties, national defense, security emergencies, etc.) that must be taken to prevent imminent loss of human life or property (50 CFR § 402.05, 1986), for which the response cannot wait for a normal consultation to be completed. Emergency response actions undertaken to limit or prevent oil discharges and/or their effects are usually addressed via the emergency consultation process (50 CFR § 402, 1986). In making determinations of effects, the action agency must make one the following three determinations: no effect; may affect, not likely to adversely affect; may affect, likely to adversely affect. Each required a different level of consultation:

• No effect – the proposed action will not affect listed species or critical habitat. This is the appropriate determination if there are no listed species or critical habitats in the action area. No consultation is required.

• May affect, is not likely to adversely affect (NLAA) – the proposed action will result in discountable, or insignificant, or completely beneficial effects on listed species or critical habitat. In order to meet the requirements of the regulations, written documentation of the determination and concurrence are required.

• May affect, is likely to adversely affect (LAA) – proposed action will result in a direct or indirect adverse effect to a listed species or critical habitat; or the interrelated or interdependent actions yield results that are NOT discountable, insignificant, or wholly beneficial. This determination requires a formal Section 7 consultation.¹²

As described in the MOA, the Trustee/resource management agencies, the FOSC, and the RRTs should coordinate on spill planning and consultation efforts in addition to actual response efforts. In general, there are three types of ESA consultations:

1. Informal Consultation (50 CFR § 402.13, 1986) – If USFWS and NMFS concur with a NLAA determination from the action agency, the informal consultation typically occurs during the planning phase and with the development of pre-authorization documents by the action agency (USCG and/or EPA, often through teams from the RRTs and ACs) as dictated by the NCP (40 CFR § 300.210, 1994). A Biological Assessment (BA) can be prepared by the action agency to determine if the proposed action (spill response countermeasures) is likely to adversely affect listed species or critical habitat, but is not required. The USFWS & NMFS ESA Section 7 Consultation Handbook (1998) provides flowcharts and additional guidance on informal consultations.

2. Formal Consultations (50 CFR § 402.14, 1986) – A Formal Consultation usually is preceded by an informal consultation. If the Federal action agency determines that despite implementation of avoidance and minimization measures, “take” of listed species may occur, then a formal consultation is required.¹³ Refer to the USFWS & NMFS ESA Section 7 Consultation Handbook (1998) for additional guidance on formal consultations.

3. Emergency Consultations (50 CFR § 402.05, 1986; and the Interagency MOA, 2001) – An expedited consultation process that allows Federal action agencies to address listed species and critical habitat issues and concerns during a response to an oil spill or other emergency¹⁴. Under these circumstances, the FOSC, working with the appropriate scientific support coordinator (SSC) and USDOI representatives, may bring USFWS and NMFS staff into the response to recommend actions that prevent or minimize impacts to listed species. The details of the emergency consultation process are described in the 2001 Interagency MOA.

Ocean fisheries are managed under Magnuson-Stevens Fishery Conservation and Management Act (MSA) of 1976, as amended (16 U.S.C. 1801–1882). MSA established procedures designed to identify, conserve, and enhance EFH. The EFH is defined as “Those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity.” EFH has been described for approximately 1,100 managed species to date.

The MSA requires Federal action agencies to consult with NMFS on all actions, or proposed actions, authorized, funded, or undertaken by the agency, that may adversely affect EFH (16 U.S.C. 1855(b)(2)). As with the ESA, if a Federal agency (e.g., FOSC) determines that an action (spill response) does not adversely affect EFH, this conclusion should be documented by the action agency and no further consultation is required. Conversely, if the FOSC determines that an incident response may adversely affect EFH, then the FOSC must consult with NMFS to determine the likely effects from those actions and how to avoid, minimize, or mitigate those impacts. The EFH Regulations require that the Federal action agency provide NMFS with a written EFH Assessment for all actions that may adversely affect EFH (50 CFR § 600.920(e), 2002); the Federal agency is required to provide a detailed written response to NMFS (and the appropriate fishery management council) stating if the recommendations are accepted or alternate measures proposed by the agency for avoiding, mitigating, or offsetting the impact of the activity on EFH. Although EFH conservation recommendations are non-binding, when inconsistent with the recommendations, the Federal agency must explain in writing its reasons for not following the recommendations.

There are many potential situations where a Federal action can affect both EFH and the critical habitat designations for listed species under ESA, adversely affecting both. In these instances, consultations under both Section 7 and MSA may be required. NMFS strongly encourages streamlining efforts that coordinate the requirements of these statutes.

When Congress passed the National Historic Preservation Act (NHPA) in 1966, the Federal government was designated as a full partner and a leader in historic preservation in the U.S. The goal of NHPA is to have Federal agencies act as responsible stewards of our nation's resources when their actions affect historic properties.

Section 106 of the NHPA requires Federal agencies to consider the effects of their actions on historic properties and seeks to avoid unnecessary harm to these historic properties from these actions. It is triggered when Federal agencies take action, fund, or permit activity with the potential to affect historic properties (36 CFR § 800, 2000).^{15 16}

Section 106 requires all Federal agencies to conduct consultations between the requesting Federal agency, the state, and Tribal organization officials, where applicable. The appointed State Historic Preservation Officers (SHPOs) coordinate the historic preservation program and consult with agencies for Section 106 reviews for their state. Members of the public and other interested parties also have a right to participate in the consultation and review process under Section 106. Federally-recognized Indian Tribes may officially designate a Tribal Historic Preservation Officers (THPOs) akin to SHPOs, or representatives for the consultation reviews as necessary when historic properties of religious and cultural significance to the tribe may be affected by the actions. Even when Tribes have not designated and certified a THPO, they must still be consulted under Section 106.

In 1997, a Programmatic Agreement (PA) was executed between the Advisory Council of Historic Preservation (ACHP), National Conference of SHPOs, EPA, USDOI, DOT, USCG, NPS, DOC, NOAA, DOE, DOD, and USDA agencies. The PA directs Federal agency compliance with Section 106 for emergency response actions under the NCP to ensure that historic properties are taken into account during the conduct of emergency response actions. In complying with the PA, the signatory Federal agencies fulfill their requirements under Section 106 of NHPA for pre-incident planning and emergency response activities.

For an oil spill response, the FOSC: 1) is responsible for ensuring that historic properties are appropriately considered in the planning for, and during all NCP-related emergency response actions—this includes the use of all recovery and response operations; 2) is directed to make the determination on whether the actions being used for the response are excluded from further Section 106 review or if a consultation review is required under the PA, and must carefully weigh the strategic operational requirements of the response against the likely physical destruction, damage, or alteration of all or part of a historic property. The PA will remain in effect as long as the response is still in the emergency phase. Once the emergency phase is concluded, the standard Section 106 consultation processes will resume—the FOSC will make the determination as to when the emergency phase is completed.

There are a number of key Federal statutes and orders that require all Federal agencies to consult or coordinate with federally-recognized Indian Tribes, including during a response to an oil or hazardous materials incident under the NCP. Tribal Consultations are required for pre-planning as well as during operational (the emergency or cleanup phase), post-incident, and for the long-term maintenance and update of the consultations.

Federally-recognized Tribes are natural resource Trustees for resources on Tribal reservations and resources protected by treaties (including ceded territories). Tribes designate contacts for notification purposes;¹⁷ THPOs may be available to advise responders when response actions may impact Tribal historical or cultural resources. If impacts are likely, the response should be adjusted to protect those resources where feasible and if time is available.

The Tribal consultation requirements of Section 106 of NHPA and the 1997 Programmatic Agreement are addressed above.

On November 6, 2000, President Clinton signed Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) in order to “establish regular and meaningful consultation and collaboration with Tribal officials in the development of Federal policies that have Tribal implications, to strengthen the United States government-to-government relationships with Indian Tribes, and to reduce the imposition of unfunded mandates upon Indian Tribes.” The Order requires the U.S. Government and its Federal agencies to “respect the rights of Indian Tribal self-government and sovereignty, honor Tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian Tribal governments,” through direct consultation with Indian Tribes concerning Federal policies and actions that may impact native communities.¹⁸ Federal agencies must adhere, to the extent permitted by law, to specified criteria when formulating and implementing policies that have Tribal implications. In general, this right forms the basis for Federal policies or programs that have Tribal implications and requires regular and meaningful dialogue to ensure that these rights are reflected in Federal policies and programs. Tribal consultations cannot be delegated outside the FOSC chain of command; and must be addressed directly.

The EO was further supported on November 5, 2009 when President Obama signed the Memorandum on Tribal Consultation, pronouncing Tribal consultations as a critical component of a sound and productive Federal-Tribal relationship. The Indian Tribes and the SHPO in the state(s) of action must be included early in the planning/consultation process and provided a meaningful opportunity to participate. For example, if there is an action to take place in Mississippi, there are tribes in Oklahoma that have historical links to Mississippi and must be notified of action and provided an invitation to participate. The SHPO has established relationships with the Tribes and should be the first point of contact for the FOSC and his representatives in order to secure the Tribal input into the process. Under the terms of the 1997 PA, the FOSC may be assisted in this practice; however, the Historic Properties Specialist (HPS) may also assist with the tribal consultation piece because they are comparable.

The NAGPRA (25 U.S.C. 3001-3013, 43 CFR § 10, 2011) was passed on November 16, 1990 to resolve the disposition of Native American cultural items and human remains under the control of Federal agencies and institutions that receive Federal funding (“museums”), as well as the ownership or control of cultural items and human remains discovered on Federal or Tribal lands after November 16, 1990.

In the context of oil or hazardous substance spill response, NAGPRA's most prominent requirement is that all work cease and tribes are notified immediately if Native American human remains or other cultural items as defined in NAGPRA (43 CFR § 10.2, 2011) are encountered. NAGPRA permits the development of a Plan of Action (POA) as part of response pre-planning efforts; this is often a very lengthy process. However, having a POA in place can ensure that spill response activities experience minimal disruption in the event that the potential for Native American human remains or cultural items are found during a response (43 CFR § 10.4, 1997). In many instances, the Federal land managing agency may already have negotiated a POA with the relevant tribes. Most Federal land managing agencies already have a designated point of contact for NAGPRA compliance. Section 10.4 (1997) of NAGPRA defines the process when cultural items or remains are discovered inadvertently (without a POA) on Federal and/or Tribal lands, including the protocols for discovery, ceasing activity, notifications, and consultations. A PA for a POA would be the best way to address this gap. Furthermore, SHPOs or state Tribal representatives could formally define how to address native and non-native remains found on non-federal or Tribal lands. One additional consideration would be the inclusion of a medical examiner as the remains may not be part of crime scene.

Oil spill incidents in the U.S. present many issues that require consultation activations. The laws, regulations, and EO pertaining to consultation are not universally understood and many are not adequately addressed in the planning requirements within Regional and Area planning. In many cases, the required consultations have not been conducted—for individual spill responses or programmatically for the ACPs or RCP, where applicable. During an incident, it is the FOSC's responsibility to conduct the necessary consultations; these efforts are lessened with advanced planning and consultation with the Trustee/resource management agencies.

There are limited agency resources (people, time, expertise, and funding) to adequately address the consultation requirements in the U.S. and to maintain them. What are the realistic expectations of support from USFWS & NMFS under the existing MOA and for USDOI relative to NHPA and Tribal consultations? National, big picture and realistic solutions are needed to address the consultation requirements for the Federal action and Trustee agencies. Evaluations and determinations by the NRT and agency level entities are needed to determine if the existing requirements are indeed the best way to address and plan for the protection of resources from response actions or is the existing process too cumbersome; being dictated by regulation that doesn't make sense in the real world? Are there better, more efficient and effective ways to meet the goals and objectives of the federally mandated consultation requirements?

The authors offer their observations and recommendations on consultations for the regulatory agencies and response community. These recommendations need to be addressed by the Federal action agencies (primarily USCG and EPA), the Trustee agencies, and the NRT, RRT, and AC decision makers. Consultation documents should be reviewed and updated on a scheduled basis or when a significant change is identified for or within the consultation mandate. The action agencies and their decision making partners must establish clear guidance and protocols for the maintenance and upkeep of the Regional and Area consultation documents. The various agency resources, personnel, and funding sources are limited for addressing the consultation mandates requirements. Without Agency-level sponsorship for these efforts, the consultation authorities and the action agencies will have limited capability to meet the consultation requirements.

Table 2 summarizes the observations and recommendations identified by the authors. The authors are hopeful that this document will assist in developing national level strategies that will address the consultation needs of the regional, area, and agency response efforts. Additionally, Table 3 compiles the authors’ ideas for development of customized tools for the consultation mandates that are designed to simplify and streamline the consultation process in all response stages.

In summary, there are many challenges still to be addressed relative to consultations for oil spill response. Clear instruction is needed to assist FOSCs, RRTs, and ACs on the consultation process in all of its planning and response phases—guidance on the level of detail, format, standardization, and uniformity are needed to address the regional differences; realistic timelines and identification of priorities should be provided; decision making tools (e.g., BMPs) should be developed to outline the likely potential effects of the action agency's response actions on the protected resources.

This paper addresses important subject matter that is currently being evaluated on local, regional and national scales. Interpretations of regulations that govern consultation mandates and best ways to apply and comply with them have been reviewed and evaluated by many different entities from the USCG, EPA, NOAA, DOI, USFWS, NMFS, NPS, and others. While there is no consensus among all regarding the best and most correct interpretations and application of the regulations, the authors of this paper endeavored to present some of the most vetted views that could be obtained from the various stakeholder agencies. While there is not agreement in all areas, and more work is needed to move forward in a consensus effort, it is the intention of this paper to assist in that process.

The views and opinions expressed in this article are individual authors opinions and perspectives, and do not necessarily reflect the views of the agency process and the U.S. Government.