Our involvement ended after First Solar sold SSS to another developer and settled DOW’s lawsuit with respect to the Stateline project.[7]Defenders of Wildlife v. Jewell, Case No. CV 14-1656-MWF (RZx), slip. op. at 1 (C.D. Cal. Mar. 30, 2015).[8]Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782, 790 (9th Cir. 2005) (quoting 16 U.S.C. § 1536(a)(2)).[9]Id. (citing 16 U.S.C. § 1536(b)(4); Aluminum Co. of Am. v. Administrator, Bonneville Power Admin., 175 F.3d 1156, 1159 (9th Cir. 1999)).[10]Defenders of Wildlife v. Zinke, No. 15-55806, 2017 WL 2174546, at *6 (9th Cir. May 18, 2017) (“Opinion”) (quoting BiOp at 85).[11]Id.[12]Id.

§ 424.12(e).[6] 16 U.S.C. § 1536(a).[7]Id. § 1536(a).[8]Id.

.C. § 1531 et seq., in the transfer of permitting authority to Florida in the final days of the last administration.BackgroundThe ESA prohibits unpermitted "take" of endangered species. 16 U.S.C. § 1538(a)(1)(B). "Take" is broadly defined to include any action that may "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a species. 16 U.S.C. § 1532(19). It also includes habitat modification that kills or injures wildlife. 50 C.F.R. § 17.3. Under the ESA's implementing regulations, an "action agency" is required to "review" its actions "at the earliest possible time to determine whether any action may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). If the action agency determines that an "action may affect a listed species or critical habitat," the agency must consult with the U.S. Fish and Wildlife Service (FWS) to ensure that its contemplated action "is not likely to jeopardize the continued existence of any endangered or threatened species." 16 U.S.C. § 1536(a)(2). That process – referred to as "Section 7 consultation" – results in the preparation of a Biological Opinion (BiOp), which is used to determine "how the agency action [at issue] affects the species or its critical habitat" and to determine whether the proposed action is likely to jeopardize the continued existence of any listed species. Id. If the agency action will "take" a species, the resulting "incidental take statement" issued with the BiOp "specifies the impact of such incidental taking on the species" and "sets forth the terms and conditions … that must be complied with by the [action] agency or applicant (if any), or both," in order to "minimize such impact," 16 U.S.C. § 1536(b)(4).Typically, a 404 permit issued by the Corps would be subject to the Section 7 process. However, when the 404 program was assumed by the state, there was no longer an "action agency" for the FWS to consult. To overcome this, FWS and EPA undertook a Section 7 consultation on EPA's approval of Florida'

See 82 Fed. Reg. at 1999-2000 (2017). 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).

The National Environmental Policy Act (“NEPA”) and ESA also require the Corps to consider environmental impacts of such projects in reissuing Nationwide Permit 12. Among these requirements, Section 7 of the ESA requires the Corps to ensure that any action that it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any listed species or destroy or adversely modify designated critical habitat. 16 U.S.C. § 1536(a)(2). To satisfy this obligation, the Corps must consult with the U.S. Fish and Wildlife Services and/or the National Marine Fisheries Service (“the Services”) if any permitted action “may affect” endangered species or critical habitat.

The Endangered Species Act's Consultation RequirementSection 7 of the Endangered Species Act and implementing rules require consultation between an "action agency" (the permitting agency; here, the Corps) and the consulted wildlife agency (here, the FWS) if the action agency determines that its action "may affect" listed species. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. The agencies may opt to enter into informal consultation and, if the agencies find that "the action is not likely to adversely affect listed species," then "no further action is necessary."

Once critical habitat is designated, the ESA prohibits other federal agencies from engaging in actions that adversely modify critical habitat. 16 U.S.C. §1536(a)(2).While this restriction does not directly apply to private parties, the designation of critical habitat on private land is burdensome to private parties due to the fact that any private activity with a federal nexus must go through the ESA Section 7 process.

Section 7(a)(2) of the ESA obliges federal agencies to insure that their actions are not “likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.” 16 U.S.C. § 1536(a)(2). The court noted that “[s]ection 7(a)(2)’s requirements unquestionably apply to conduct such as BOEM’s approval of leases for oil and gas drilling on the OCS.”

At the very least, it likely increases the government’s ability to withhold documents identified as drafts, but those drafts are still subject to a fact-based analysis focused on the ultimate function of the document.Footnotes -U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. __, slip op. at 7 (2021).See 16 U.S.C. § 1536(a)(2) (2018); 50 C.F.R. §§ 402.01–402.17.Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1017–18 (9th Cir. 2019).50 C.F.R. § 402.14(g)(5).It is also worth noting that the requirements for invoking the deliberative process privilege provide some safeguards against agency secrecy.

Project applicants that are contemplating nearshore development, repair, or replacement projects in the nearshore Puget Sound area should engage early with environmental consultants and legal counsel to navigate these requirements prior to submission of an application or initiating of NMFS consultation.1 16 U.S.C. § 1536(a)(2) (familiarly referred to as ESA § 7(a)(2)).2 16 U.S.C. § 1532(19) (ESA § 3).3 U.S. DEP’T OF COM., NAT’L MARINE FISHERIES SERV., NMFS No. WRCO-2020-01361, Endangered Species Act (ESA) Section 7(a)(2) Biological Opinion and Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Response for the Issuance of 39 Permits under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act for New, Replacement, or Repaired Structures in the Nearshore Environment of Puget Sound 169 (Nov. 9, 2020).4Id.5See id. at 172–75.6Id. at 200.