Endangered Species and the use of a Biological Opinion During Spill Response

In 2001, six Federal agencies signed an Interagency Memorandum of Agreement (MOA) regarding Oil Spill Planning and Response Activities under the Federal Water Pollution Control Act's National Oil and Hazardous Substances Pollution Contingency Plan and the Endangered Species Act (ESA). The agencies participating in the MOA include the U.S. Coast Guard (USCG), the U.S. Environmental Protection Agency (EPA), the Department of the Interior's Office of Environmental Policy and Compliance and the U.S. Fish and Wildlife Service (USFWS), and the National Oceanic and Atmospheric Administration's—National Marine Fisheries Service (NOAA Fisheries) and National Ocean Service (NOS).

In the MOA, NOAA Fisheries and USFWS determined that oil spill response activities qualify as an emergency action, as defined by regulations implementing the ESA in 50 CFR 402.02. As such, the emergency continues to exist until the removal operations are completed and the case is closed in accordance with 40 CFR 300.320(b).

To reduce the burden of processing emergency consultation paperwork during every routine oil spill clean-up action that occurs in the Northwest, the USCG and the EPA initiated formal consultation (pursuant to 50 CFR 402.14(c)) with the Northwest Regional Office of NOAA Fisheries on November 12, 2002, and submitted a programmatic biological assessment (BA). The Aassessed the effects of most response activities on ESA-listed species that may be present in the inland waters of Oregon, Washington, and Idaho (salmonids) and the offshore waters out to 200 nautical miles (salmonids, large whales, Steiler sea lion, and sea turtles). On November 6, 2003, NOAA Fisheries completed and signed the nation's first programmatic biological opinion (BO) on oil spill response activities. While NOAA Fisheries determined that the proposed action was not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat, the agency included reasonable and prudent measures with non-discretionary terms and conditions. The terms and conditions now serve as a “job aid” for oil spill responders in the Northwest and ensure that effects on listed species and their critical habitat are minimized during most response methods that are used.

There has been some disagreement regarding the value of conducting formal consultation prior to an actual oil spill event. In addition to the upfront staff time and related costs, there is always the possibility that an incident-specific BA and BO may still have to be done. Moreover, the USCG and EPA have not yet initiated an analogous programmatic consultation with the US Fish and Wildlife Service (USFWS) so incident-specific consultations are ongoing for ESA-listed species under their jurisdiction. This paper presents the background, process, and outcomes (including pros and cons) in the development of a successful programmatic consultation on oil spill activities.

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