New Guidelines for conducting Endangered Species Act Consultations on Oil Spill Planning and Response Activities

Abstract

The framework for cooperation and participation regarding Endangered Species Act (ESA) compliance at every stage of oil spill planning and response activities is contained in an Interagency Memorandum of Agreement (MOA) signed in 2001; and although the agreement is still valid, the guidance for implementation was in need of updating. The MOA was established between the USCG, EPA, Department of the Interior through the Fish and Wildlife Service (FWS), and the Department of Commerce – National Oceanic and Atmospheric Administration (NOAA) through National Marine Fisheries Service (NMFS) and the National Ocean Service. These procedures are designed to help fulfill requirements under ESA Section 7(a)(2) as well as those mandated in the National Contingency Plan. It is a holistic approach to protection and conservation of the ecosystem upon which listed species depend that also facilitates interagency cooperation, reduces paperwork, makes the best use of limited financial and personnel agency resources, and develops a quality response plan. After more than a decade of no consultations on ESA, there was an overall lack of awareness and understanding about environmental compliance on the part of the “action” agencies (USCG & EPA), and about response actions and oil spills on the part of Service agency personnel (NMFS & FWS). Through the National Response Team - National Environmental Compliance (NEC) Subcommittee; guidelines to conduct an ESA Consultation and write a Biological Assessment (BA) were completely re-written for clarity and practicality to meet today's resource-challenged agencies. These guidelines will provide Sectors and Regional Response Teams with numerous suggestions on how to include Best Management Practices to protect species and habitats while developing protection and oil recovery strategies in their Area Contingency Plans (ACP). The guidelines reaffirm how the action agencies and service agencies must work together to best understand the others expertise and needs. The guidelines will identify economies of scale with consultations such that time, effort and costs are reduced for all agencies involved. Knowing the environmental risks in advance will allow planners and response practitioners to develop the most effective strategies while minimizing environmental harm. Smartly built ACPs and new-found economies to writing BAs will greatly advance the ability to be ESA compliant; avoid lawsuits; and support decisions for the most appropriate cleanup methods for specific habitats, in order to maximize oil recover and minimize any impacts to species or habitat.