Oil Spill Preparedness & Response Compliance with the Endangered Species Act (ESA) and Reducing Action Agency Exposure to Future Litigation

Abstract

The Coast Guard, Environmental Protection Agency, Department of Interior's U.S. Fish & Wildlife Services (FWS), and the National Oceanographic & Atmospheric Administration's (NOAA) National Marine Fisheries Service (NMFS) have partnered since 2001 through the Interagency Memorandum of Understanding (MOU) on Endangered Species Act (ESA) Section 7 consultations. Under the authority of the National Contingency Plan, coastal and inland zone area committees, Coast Guard FOSCs & EPA OSCs fill a vital role in determining if certain proposed actions affect listed threatened and endangered (T&E) species or designated critical habitats (CH) and have a responsibility to initiate and coordinate either an informal, emergency, or formal consultation between the FWS & NFMS, also known as the “Services.” One of the best practices learned by the Coast Guard and EPA after the recent lawsuit and subsequent 2013 settlement with the Center for Biological Diversity on the use of pre-authorized use of dispersants in California is that Coast Guard FOSCs and EPA OSCs in concert with their respective area committees should make all efforts to engage the Services in the consultation process when there is a possibility of an action that could affect T&E species or designated CH. The norm in the past has been to delay the consultation process until the emergency response phase, often necessitating an emergency consultation during an actual spill or release that could affect T&E species or designated CHs. In the future, area committees, FOSCs, and OSCs at the start of each area contingency plan's quadrennial review and update, should engage the consultation evaluation process. This poster is about the ESA Section 7 consultation process to proactively mitigate and avoid potentially adverse affects to ESA-listed species and designated CH using the consultation process associated with complying with the Act, avoiding jeopardy, and reducing future Coast Guard and EPA exposure to future litigation.