Navigating through the stages of licensing or relicensing a hydropower project can be a lengthy process. However, there are steps to make the endangered species consultation portion easier to manage.
By Alan D. Mitchnick
The Endangered Species Act (ESA) is designed to prevent the extinction of plants and animals and their habitats. The Supreme Court concluded that with its passage in 1973, Congress intended “to halt and reverse the trend toward species extinction, whatever the cost” and gave “endangered species priority over the ‘primary missions’ of federal agencies.” But does it deserve its label as the “pit bull” of environmental statutes?
Section 7 of the ESA places a substantial burden on the Federal Energy Regulatory Commission (FERC) to protect endangered species.
The procedural requirements of the ESA consultation process occur late in the integrated licensing process (ILP), the FERC default licensing process (see Figure 1 on page 10), as well as the other licensing processes (traditional and alternative licensing processes). However, the development of information and coordination that occurs during the pre-filing process is critical to successful completion of the endangered species consultation.
What is the “section 7 consultation process?”
Federal agencies must ensure that their actions – in this case the construction or relicensing of non-federal hydropower projects – are not likely to jeopardize the continued existence of federally listed threatened and endangered species or result in the destruction or adverse modification of designated critical habitat. To assist in complying with the ESA, section 7 requires federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) if the agency determines that a project would likely affect listed species or designated critical habitat.
FERC includes, in every environmental assessment (EA), environmental impact statement (EIS), or in a biological assessment (BA), an evaluation of the effects of a hydro project on listed threatened or endangered species or species proposed for listing under the ESA, as well as on designated and proposed critical habitat. The steps of the consultation process are determined by the specific conclusion reached (see Figure 2 on page 10):
– “No effect” ends the consultation process;
– “Not likely to adversely affect” requires written concurrence by the service with applicable jurisdiction; or
– “Likely to adversely affect” requires FERC to initiate “formal consultation” with the appropriate service.
Informal consultation
The purposes of informal consultation are to determine whether listed/proposed species or designated/proposed critical habitat may be in the action area; determine the effects of the action on the species/critical habitat; explore ways to modify the action to reduce or remove adverse effects; explore the design or modification of an action to benefit the species/critical habitat; and determine the need to enter into formal consultation.
If FERC determines that a project may affect but would not likely adversely affect a listed species or critical habitat, FERC staff will request concurrence from the service. If the service concurs, then the consultation process is completed. Although there are no set timeframes for a response, the service strives to respond within 30 days.
Formal consultation
FERC must enter into formal consultation when it finds that a hydropower project may likely adversely affect a listed species or designated critical habitat. FERC initiates formal consultation by submitting its evaluation of project effects on ESA species and habitats and other information required such as description of the proposed action area and relevant reports to the service. The service will notify FERC if it has sufficient information or if it needs more. FERC will provide the information or notify the service that the information is not available. Formal consultation must be completed within 135 days after the information is provided. Formal consultation can be extended up to 60 days with the agreement of FERC. Extensions greater than 60 days require approval of the license applicant.
In practice, formal consultation takes longer than 135 days. Formal consultation concludes with the preparation and issuance of a biological opinion by FWS or NMFS, as appropriate.
The service’s biological opinion will include a determination of whether the project would jeopardize the continued existence of the listed species or destroy or adversely modify critical habitat and may include a statement that specifies the amount of “take” expected to occur; reasonable and prudent measures to minimize the take that may only involve minor changes to the proposed action, consistent with the project’s scope, design, location, duration and timing; terms and conditions implementing the reasonable and prudent measures; discretionary conservation recommendations; and reasonable and prudent alternatives that may be necessary to avoid jeopardy.
FERC engagement
Has section 7 consultation had a significant effect on licensing hydropower projects?
Of the 84 licenses issued between January 2008 and April 2013, 36 (43%) required endangered species consultation, with 15 requiring informal and 21 requiring formal consultation. This represents a significant percentage of all the license issuances and a real potential to delay the licensing process.
Why does it take so long?
During informal consultation, delays, although not frequent, are often a result of the services not concurring with FERC’s findings. Reasons for non-concurrence generally are based on evidence of adverse effects; insufficient information to support the conclusion; incomplete analysis; insufficient measures to eliminate or minimize impacts; insufficient details of the proposed action; and lack of analysis of all species.
FERC may provide the requested information or require the applicant to develop it. FERC’s obligation, however, is to provide the best available information. During formal consultation, the primary reasons for delays are insufficient information, such as impact studies, species surveys, detailed design drawings, detailed plans, life history information, clarification of project design and operation, and more detailed effects analysis.
The other major source of delay is agency priorities and staffing. Although little can be done about this, some of the measures discussed below can lead to more efficient use of the services’ limited resources.
How can delays be avoided?
Although the compliance aspects of the ESA (and opportunities for delays) occur late in the licensing process – after development of FERC’s EA/EIS, typically three to four years after the process has started – the steps to avoid these delays must begin early in licensing process (see Figure 3 on page 12).
By considering endangered species early in the licensing process, sufficient information can be developed to better understand the relationship of project construction and operation and potential impacts to listed species, alternative actions can be developed and evaluated, conflicts with other resources can be identified, and economic consequences can be calculated. This up-front consideration of ESA issues will ultimately result in better decisions and fewer delays in completing the informal and formal consultations.Given the importance of good communications and agency involvement in ensuring a more efficient consultation process, the following recommendations for license applicants are important throughout the licensing process.
Involve the services early.
No one is better equipped to know what information the services will need to complete consultation. The earlier the services’ staff get involved, the less likelihood for surprises later in the licensing process.
Develop ways to involve the services’ appropriate endangered species staff throughout the licensing process.
Providing specific endangered species information and requests avoids the need for the services’ endangered species staff to filter through all the information generated by the applicant. Smaller, focused meetings dealing specifically with endangered species issues, outside the meetings required under the ILP regulations, are a more efficient use of time than unorganized meetings.
Talk. Meet. Talk. Meet. …
Whenever questions arise about any aspect of the process dealing with endangered species, make sure these issues are addressed as soon as possible. There are limited restrictions regarding meetings with FERC staff during the pre-filing process, but meetings after the application is filed are more difficult, generally requiring advance notice unless it concerns only procedural matters. Keep FERC staff aware of any issues in advance.
Take the fullest opportunity to be involved in endangered species issues.
Applicants need to understand and take full advantage of their opportunities to participate in the section 7 process as a non-federal representative. It is important for licensees to identify endangered species early, develop good information, and anticipate future listings.
The greater the involvement by applicants in the endangered species consultation process, the more effective they can be in crafting protection measures that ultimately will be included in a biological opinion. Greater involvement will allow applicants to develop comprehensive agreements, better control their destiny in regard to licensing their proposed project, avoid surprises and reduce conflict.
Studies
The quality and completeness of endangered species studies are critical to avoid delays or the need for additional studies. The following hints could help avoid delays.
Get the action area right.
The action area typically will extend beyond the footprint of the project. For example, noise from blasting can extend as much as a mile from the blast zone. Water quality and quantity effects can be experienced many miles downstream of the project area.
Properly identify the presence of listed species and their critical habitats.
It is vital to identify all species and critical habitat that could potentially be affected by the proposed action so that proper studies can be conducted. Survey reports should document that the surveys were conducted according to protocols or standard methods, proper habitats were surveyed, and timing was appropriate.
Anticipate future species listings.
The list of species is constantly changing. Although it often is difficult to predict which species may be added to the list, candidate species have been identified by the services as species where the services have sufficient information on their biological status and threats to propose them as endangered or threatened under the ESA, but for which development of a proposed listing is precluded by other higher priority listing activities. By not addressing the presence and potential impacts to these species early, delays can result if these species are listed or proposed for listing late in the licensing process.
Understand the consequences of not doing surveys.
Better information enhances the consultation process, can hasten the preparation of the biological opinion and can be useful in avoiding the need for formal consultation. Not doing surveys can result in more restrictive measures than necessary and delays in preparation of the biological opinion.
Preparation of draft BA
Preparation of a draft BA provides an opportunity for an applicant to help identify and resolve issues early in the licensing process. The following recommendations will help produce an effective BA.
Get an early jump on preparation of a BA.
Although FERC’s ILP regulations do not require preparation of a draft BA until the final license application where applicants have been designated as a non-federal representative, a draft BA may be included in the draft license application or preliminary licensing proposal. This would allow the services and other licensing participants an early opportunity to comment on the applicant’s analysis, giving the applicant an opportunity to address the comments as part of the final license application.
Identify all project-related activities that can affect listed species and critical habitat.
It is easy to overlook certain project activities (minor construction activities, maintenance activities, recreational use, etc.) in evaluating effects to endangered species. In some cases, this could be critical. For example, clearing of elderberry along the roadside or near project facilities could affect the valley elderberry longhorn beetle, and even minor construction activities near streams could be crucial in evaluating impacts to bull trout.
Evaluate potential effects of each project-related activity.
Impacts should be specified for all project-related activities that have the potential to affect endangered species (see previous section). Analysis of effects is often lumped together, where resolution of specific effects can be lost.
Use previous biological opinions and consultations as guides in terms of what issues to consider.
Previous biological opinions can give an indication of the type of project effects that need to be evaluated, the level of information needed, and the types of analyses the services will likely conduct.
Address all the species.
The services will generally provide a list of species by county. Although not all species on the list have the potential to be affected by the project, it is important to explain and document why any of the listed species are not addressed in the BA (lack of habitat, not detected during protocol-level studies, etc.). The easier it is for the services to use information from the BA, the more likely delays can be avoided.
Work with the services in developing the draft BA.
Working cooperatively with the services to develop the BA, if possible, will help ensure that all the species are addressed, all the project effects are evaluated, and sufficient protection measures are developed.
Reach agreement with the services on the contents of the biological assessment and alternative considered.
If an applicant is unable to work cooperatively with the services to develop a BA, an applicant could still work with the services to develop a detailed BA outline. This would help ensure that all pertinent information is included.
Recommendations for draft and final license applications
The draft and final license applications must include a detailed environmental analysis of the effects of the project on listed species and designated critical habitats based the results of approved studies. The following recommendations will help ensure that key information is not overlooked, leading to delays in the consultation process.
Provide sufficient details of construction, operation and maintenance activities as they relate to potential effects to listed species.
The following information should be included in the license application:
– Construction: area disturbed, construction schedule, type of equipment, noise levels, access roads, traffic levels, etc.;
– Operation: flow release schedule, reservoir operation (timing, extent of drawdowns, etc.), project shutdown schedule, frequency of outages, etc.; and
– Maintenance: frequency of right-of-way maintenance, schedule, equipment, noise levels, location, etc.
Fully develop protection measures and plans.
Protection measures and plans must be sufficiently detailed to allow for evaluating the effects implementing the measures would have on the listed species and their habitat, adequacy of the measures, and feasibility. Draft protection plans should be included in the final license application.
Conclusions
The percentage of projects requiring endangered species consultations, particularly formal consultations, has increased substantially. Most alarming is the increase in the amount of time required. While the regulatory 135-day timeframe would not necessarily significantly add to the amount of time the licensing process takes, in practice, the consultation process clearly significantly delays the licensing process. Delays in the licensing process ultimately result in the delay in implementing much-needed environmental protection measures. The numbers of formal consultations are likely to continue into the future, particularly with the current increased interest in hydropower development.
Developing complete information early in the licensing process is the key to minimizing delays by avoiding the need for formal consultation, minimizing the need for additional information late in the licensing process, and quicker turnaround for completion of BAs. These are aspects of the licensing process that applicants can control to a large degree.
Note: The views expressed herein are the author’s and do not necessarily reflect the views of other members of the Federal Energy Regulatory Commission.
Alan Mitchnick is a senior technical expert in the Division of Hydropower Licensing, Office of Energy Projects, Federal Energy Regulatory Commission.
