ESA Section 7: Time for a Refresh in the Pre-Spill Planning Consultation Process

Oil spill response in the United States is conducted in accordance with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (Title 40 of the U.S. Code of Federal Regulations, Part 300 [40 CFR § 300]). The NCP, which has been amended several times since it was first published in 1968¹, requires coordination among multiple Federal and state agencies and other stakeholders to mitigate the impacts from oil spills and hazardous substance releases. The NCP also designates the Federal On-Scene Coordinator (abbreviated as FOSC in this document) as the person responsible for directing response actions and coordinating all other efforts at the scene of a discharge. The Environmental Protection Agency (EPA) provides FOSCs to direct and coordinate spill response in the inland zone, while the U.S. Coast Guard (USCG) provides FOSCs to direct and coordinate spills in the coastal zone. Additionally, the NCP establishes guidance for conducting preparedness planning at the national, regional, and area levels.

The Endangered Species Act (ESA) of 1973 [16 U.S.C. 1531 et seq.] provides for the conservation of threatened or endangered species and the ecosystems on which they depend. Section 7 of the ESA specifically outlines the procedures for Federal interagency cooperation to conserve federally listed species and designated critical habitats (USFWS and NMFS, 1998). Section 7(a)(1) states that Federal agencies shall, in consultation with the Secretaries of Interior or Commerce, as appropriate, utilize their authorities to carry out programs for the conservation of endangered and threatened species. ESA Section 7(a)(2), states that “each Federal agency shall, in consultation with the Secretary, insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of the designated critical habitat.” The Secretaries of the Interior and Commerce delegated this responsibility to the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), respectively. The Services promulgated regulations to define and direct the consultation process (50 CFR §402).

In order to effectively carry out the oil spill preparedness and response activities listed in the NCP and meet the requirements of the ESA consultation process, representatives from the USCG, EPA, USFWS, NMFS, Department of the Interior, and National Oceanic and Atmospheric Administration (NOAA) entered into a Memorandum of Agreement in 2001² to help streamline the process. The 2001 MOA outlines a consultation process for pre-spill planning, emergency response, and post-response and delineates roles and responsibilities of the signatory agencies. Although the 2001 MOA has served as the primary source of guidance on ESA Section 7 consultations regarding oil spill response and planning, much has changed during the past 16 years. Following the events of the Deepwater Horizon oil spill, non-profit organizations filed lawsuits or threatened to file lawsuits against the USCG and EPA in four separate regions of the U.S. for failing to complete ESA Section 7 consultation during pre-spill planning. Due to the USCG and EPA’s prompt engagement with the USFWS and NMFS (collectively referred to as the “Services”), the non-profit organizations either withdrew or voluntarily dismissed the cases with the exception of one lawsuit involving California’s Dispersant Use Plan. This lawsuit resulted in a settlement (January 2014), requiring the USCG and EPA (collectively referred to as the “Action Agencies”) to consult with the Services on their plan. Once they became aware of these lawsuits, several Regional Response Teams across the country initiated or made plans to review the status of their ESA Section 7 consultations. These efforts have varied in cost, scope, composition of agency representatives involved, and successful completion for a variety of reasons. Benggio et al. (2014) clearly documented some of the challenges the Action Agencies and Services face in meeting ESA consultation requirements. The intent of this paper is to provide an update on the status of actions, tools and products in development at the national level, in order to streamline ESA consultation efforts at the regional level.

Recognizing the challenges to conducting consultations, but the need to do so, the USCG sought to develop new national guidance and protocols for conducting ESA Section 7 consultations on the oil spill response activities the agency typically authorizes, funds, or carries out. Knowing that the development of new guidance and protocols would not be successful without coordination and input from the EPA and the Services, the USCG engaged the agencies in a number of discussions and it became clear that there was a need to reach interagency consensus regarding the process and requirements for conducting pre-spill consultations.

The National Response Team (NRT) was a natural place to foster this interaction since all the agencies are represented on this group³. In April 2015, the NRT approved the charter for the establishment of the National Environmental Compliance (NEC) Subcommittee under its Preparedness Committee. The NEC Subcommittee’s Charter emphasizes developing approaches and programs to fulfill current and emerging compliance needs and specific requirements; providing recommendations for the USCG’s and EPA’s oil spill response and preparedness compliance activities; and providing a forum for interagency coordination and consensus on legislative, regulatory and policy actions affecting oil and hazardous material spills.

The NEC Subcommittee established three workgroups (ESA MOA, Historic Preservation, and Information Sharing) and a Legal Team (Figure 1). Agency involvement and participation in the separate workgroups has been exceptional; ten Federal agencies⁴ involving more than 60 representatives at the national, regional, and local levels from across the country have been engaged, with many participating on the Subcommittee’s workgroups. The ESA MOA workgroup is composed of seven participating agencies and 23 members. The purpose of the workgroup is to develop new guidance for conducting ESA Section 7 consultations on oil spill planning and response activities, with a focus on pre-spill planning⁵. Initial major topics of discussion included: 1) Specifically, which activities in an Area Contingency Plan (ACP) are within the scope of the consultation?; 2) How is ESA consultation achieved on the programmatic level, including the structuring of consultation documents (i.e., Initiation Letter, Biological Evaluation)?; 3) What are agency responsibilities during the consultation?; 4) How do Action Agencies address multiple unknowns inherent in oil spill response from a pre-spill perspective?

This is the first time since the signing of the 2001 MOA that there has been a sustained and long-standing interagency workgroup engaged in improving ESA Section 7 consultations for oil spill response. This structure has helped all agencies involved better understand each other’s roles in meeting the regulatory requirements. There has been a collaborative approach to developing processes designed to help all agencies involved. The workgroup made some fundamental decisions on how consultations should be conducted in order to move forward in developing products to help in the process.

First, the ESA MOA workgroup proposed to conduct pre-spill ESA Section 7 consultations at the regional level, involving members of the Regional Response Teams⁶. The consultation process noted in Appendix C of the 2001 MOA was intended to be used during the planning process at the Area Committee level, while developing and modifying response strategies. However, Area Committees are typically coordinated by USCG Sector planning staffs. Due to limited ESA-trained staff at the USCG’s Sector level, and limited ability for ESA experts from the Services to participate on the Area Committees, the workgroup believed that shifting coordination of pre-spill ESA Section 7 consultations to the regional level would be more efficient and lead to more robust and consistent outcomes.

Secondly, the workgroup collaboratively decided to pursue programmatic consultations, which should streamline the process by focusing on common response actions within a region, and the policies and standards that are used to implement the response actions. The use of programmatic consultations has been rising over the last few years, as it often provides a cost-effective way for agencies to consult once on multiple identical activities that occur nationally or throughout a large region. This consultation approach is best suited for plans and activities for which specific timing and locations of implementation are unknown. Programmatic consultation also allows for early coordination within the response planning process. As such, time is allowed for the identification of potential best management practices to be incorporated into the response activity. This method, unlike the ESA Section 7 consultation process for discrete Federal activities with known locations, activities and schedules, seems better suited for pre-spill planning activities.

Finally, the workgroup chose to make a point of consulting on spill response activities rather than “plans” or entire Area Contingency Plans. The rationale was that plans may include much more information than the actual specific activities that may affect ESA listed species or critical habitats (e.g., the command and control structure, such as composition of a Unified Command during an oil spill response).

The ESA MOA workgroup’s first year’s efforts culminated with a 3-day workshop, a significant event in the guidance development process that gave an opportunity for the Action Agencies and Services to study and revise current pre-spill consultation practices and guidance listed in Appendix C of the 2001 MOA. The main goals of the workshop included validating an annotated biological evaluation (BE) template focused on oil spill response activities, and documenting processes and decision making tools used to meet BE information needs. The workgroup made significant progress on understanding the challenges associated with the consultations and what types of products needed to be developed to overcome those challenges (i.e., much more progress than what could be accomplished through the bi-weekly conference calls). Several tools and job aids were developed at the workshop, which the workgroup continues to refine and gain consensus on for eventual use by Action Agency and Service field units. The new products include: 1) a revised pre-spill consultation process; 2) the Response Action Matrix; 3) a collection of Best Management Practices (BMPs); and 4) templates to aid in the consultation process and correspondence between agencies.

The workgroup developed a new flow chart to walk Action Agencies through the pre-spill consultation process. This flow chart depicts the different stages of consultation including technical assistance, informal, and formal consultation. It also lists the tools that may be available to assist with each step in the process. The flow chart is included in  Appendix A.

In addition to streamlining the consultation process, the NEC Subcommittee also seeks to insure that consultation outcomes are consistent among the different regions and effectively deal with the uncertainties inherent in oil spill response. To help inform this process, the USCG reviewed its prior experience with programmatic ESA consultations for some of its nationwide operational programs. One of the key lessons learned from those consultations was the importance of clearly and completely describing a proposed activity or action. In the previous consultations, the USCG spent much time clarifying the action so that it clearly points to potential exposure routes for listed species. Thus, to streamline pre-spill consultation, the description of spill response activities should anticipate (as much as possible) the questions and issues that the Services’ consulting biologists are most interested with. This type of information is also critical for the USCG and EPA in making their determinations of effects on species, a key element in the consultation process.

After considering the uniqueness of the action to be consulted upon and various lessons learned from prior programmatic consultations, the workgroup developed a matrix (see  Appendix B) that aims to guide the development of a BE by taking the Action Agency through a series of questions about each spill response tool, as follows:

• Spill response activity name and definition - First the action is identified and its basic characteristics are described. “Oil spill response” has been broken out into 33⁷ distinct response activities under the following broader categories: deflection and containment; recovery; removal/cleanup; submerged oil; wildlife protection; locating, tracking, and support; and waste management. It is anticipated that any BMPs already employed by the Action Agencies (in their respective regions) will be included in the definition of the activity. During technical assistance and informal consultation between the Action Agencies and the Services, additional measures to minimize impacts on ESA listed species and/or critical habitats may be suggested and added to the proposed action if it is determined that the measure could be applied consistently.

• Typical locations in the action area where the response activity is implemented - The location where each response tool can be used is the first screening factor, as these locations help to eliminate species and habitats that would not overlap with the response activity. Location is further described by a dropdown menu that includes: 1) Shoreline (beach/land); 2) Ports, Canals, Industrial Areas (structures and water); 3) Coastal Nearshore (<3NM); 4) Coastal Offshore (>3NM-EEZ); 5) Rivers and Streams (Inland); 6) Bays and Estuaries 7) Ponds and lakes (Inland); 8) Mangroves; 9) Wetlands; and, 10) Upland Areas. This helps to narrow the focus geographically for potential effects of each response tool, and is relatively uncomplicated to answer.

• Environmental conditions that limit where or when to use the response activity - Also helping to narrow the focus are environmental conditions under which each response activity could or could not be used effectively. This parameter can also speak to geographic scope, but may also define and limit the focus temporally, including day vs. night, seasonal, or weather-related boundaries on use. In addition to narrowing the focus for species and habitats, a clear description of environmental conditions could also point to BMPs that are or are not used while employing certain response tools.

• Discussion questions and considerations - These reveal uncertainties and unknowns about the spill response activity. A common refrain of this interagency workgroup effort was: “How can an Action Agency consult on this topic given that almost every aspect of it is unknown, uncertain, and decided during the action?” While it is true that uncertainty makes describing the action difficult, this is not insurmountable. Where possible, ranges or most likely scenarios can be described. When aspects of an oil spill response are truly unknown, the reason that they are unknowable and the decision processes that would be used can be discussed. The consultation could then cover that decision process and the extent to which it incorporates measures to protect listed species and habitat. Ultimately, certain aspects of oil spill response could be too variable to be consulted upon prior to an actual response, and may be better suited for emergency consultation.

• Potential interrelated and interdependent response activities - Most response tools are not used by themselves. They are used either directly before or after other tools, or in some cases, in conjunction with other activities such as vessel or aircraft operation. During ESA consultations, the Action Agency should consider and analyze interrelated and interdependent activities along with the primary activities. Identifying and defining these activities in the matrix may help in streamlining consultation, as many of them are redundant (i.e., vessel and aircraft use, waste management) and would only have to be analyzed once.

• Aspects of spill response that are in scope of consultation – After the spill response method has been clearly defined, it is broken down into aspects to ensure that it is completely analyzed and also to help decide whether or not the spill response method (or certain parts of it) should be in scope of the consultation. For example, booming is broken down for analysis of effects from: 1) securing/deploying/removing boom; and, 2) presence of the boom itself and aggregation of oil.

• Potential impacts considered on ESA-listed species or their habitat - With knowledge and information gathered thus far about the activities, conditions, species and habitats; the next step is to identify potential direct and indirect impacts (or effects) of the response activity. In order to understand and identify impacts, possible physical, chemical, and/or biological exposure routes are analyzed. Some examples of exposure routes are: injury through direct contact; inhalation; absorption; blockage of access to essential resources; alteration or destruction of habitat; and disturbance from noise.

• General groups of species that may be affected - Once response tools are defined with respect to where and when they could be used (habitat, environmental conditions), and how they could affect species and habitat (exposure routes), the action agency can then identify general groups of species that could be affected, and also rule out species that would not be affected. For instance, if a response activity is only used offshore and never nearshore or onshore, there would be no need to analyze effects on beach mice or dune species, nesting shorebirds, or species that live solely in wetlands. Although this matrix identifies general species groups and not species themselves, this part of the Response Action Matrix will dovetail with regional- and species-specific matrices that are in development by the Services (as further described below).

It is anticipated that much of the information generated by completing the Response Action Matrix will be used directly in the BE, helping to streamline the consultation process. Certainly all of the detailed descriptions of response tools and how they are used will be a key element, and thus will require little adjustment to incorporate into regional BEs. The mutually agreed-upon identification of general species groups, interrelated and interdependent activities, and exposure routes will ensure Action Agencies do not miss an analysis, and that analyses are as consistent as possible, given the different species and habitats among the different regions.

As mentioned above, the identification of general groups of species will dovetail with the Services’ species-specific matrices. NOAA’s NMFS and Office of Response and Restoration jointly developed a draft national species matrix that has been shared with the response community; USFWS is developing regional matrices. For example, if a response activity could affect birds and turtles nesting on the beach, an Action Agency would then look to the Services’ matrices to see if there are birds or turtles that nest on the beach in that region. If the answer is no, then the analysis for that response activity in that area is done. If yes, an effects analysis proceeds for those individual listed species and is included in the BE. The Services’ species matrices will help the Action Agencies make a determination of either ‘no effect’, ‘not likely to adversely affect’, ‘or likely to adversely affect’; a requirement of the consultation process.

BMPs are modifications to the response action designed specifically to reduce potential impacts to listed species and habitats. For decades, Service representatives have prescribed BMPs during response when planning shoreline surveys and cleanup actions. Many were common sense, many were learned through practice, and others came directly from the environmental agencies that had the research and experience to understand more subtle and long-lasting impacts on species and habitats. Over the past several years, the Action Agencies and the Services have begun to assemble lists of BMPs for specific species and habitats. Examples of those lists are provided in Figure 2. The workgroup intends on housing a collection of the lists and making them available to Regional Response Teams and Area Committees for use in their response planning.

The regulations on consultations provide an overview of the documentation required, particularly from the Services, however details are limited for Action Agencies. To aid the USCG and EPA, the workgroup is developing templates that can be used during consultation. Examples of these templates are described below.

A request by the Action Agency to the Services for technical assistance - ESA Section 7 consultation often starts with a request for technical assistance, including a species list, in letter or e-mail format. The workgroup is developing templates for such requests for quick reference. The request serves to initiate the process among the Action Agency(ies) and Service(s) and should describe, at a minimum, the area covered by the request, and a general description of the spill response activities to be used in the area. This phase of consultation can be used to determine the presence of listed species or designated critical habitat.

The BE Template - The regulations on consultation provide minimal guidance on the contents of a BE and/or what is needed to initiate formal consultation. As a result, much discretion is left to the Services and Action Agencies to define the contents, leading to inefficiencies. To help avoid this, a template or “framework” for the BE is being developed to assist the Action Agencies in organizing the necessary information into a single document in a consistent format that is acceptable to the Services. The BE may be used to determine if formal consultation is or is not necessary.

Although there is an MOA between the Action Agencies and the Services to help guide consultations, much has changed since it was signed in 2001. The difficulties in meeting the consultation requirements were detailed in Benggio et al. 2014. In addition, efforts by the USCG and EPA to comply with the ESA consultation requirements at local and regional levels have been difficult and complex. These issues contributed to the NRT’s determination that there was a need to address the complex questions and develop nationwide guidance for consistency across the country working collaboratively with the agencies involved. The NEC Subcommittee’s ESA MOA workgroup has collaborated exceptionally well since its formation in 2015. The workgroup has resolved issues and developed products among the Action Agencies and Services regarding pre-spill ESA Section 7 consultation. Education on the ESA and compliance process has also been a huge investment and a requirement to gain reasonable consensus in developing a plan and moving forward. Most responders are not protected resource specialists involved in endangered species and critical habitat conservation, and most consultation biologists are not oil spill responders. It took a concerted effort to bring together the different issues from across the country and then develop a comprehensive plan to solve these issues.

The workgroup plans to continue developing, refining, and vetting job aids, tools, and new guidance for the Action Agencies and Services to use in the field in order to achieve maximum compliance with the ESA and improve protection of threatened and endangered species during spill responses. The next steps for the workgroup include development of a new guidance document (or new handbook) and potentially revising the 2001 MOA. The work of this group also demonstrates the ability for several Federal agencies to work together to solve a complex and challenging problem within the framework of the National Response Team.

Note: This is a small excerpt of the matrix, which is typically printed on legal size paper or larger. This excerpt is designed to give the reader a visual of what the overall matrix looks like, not to convey the actual information contained in the matrix (which is too small to read in this format).