The real meat of the rule rests in the modifications to 50 CFR 402.03 (Applicability of Interagency Cooperation – Endangered Species Act of 1973). This language specifies when a Federal action agency (Federal lead agency) must consult USFWS and/or NMFS for concurrence on the potential effects to threatened and endangered species. Pre-rule, the language states “Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.”

The new Final Rule modifies this language and exempts from consultation those actions “(b)…when the direct and indirect effects of that action are not anticipated to result in take and:”

“(1) Such action has no effect on a listed species or critical habitat”

or

“ (2) The effects of such action are manifested through global processes and (i) cannot be reliably predicted or measured at the scale of a listed species’ current range, or (ii) would result at most in an extremely small, insignificant impact on a listed species or critical habitat, or (iii) are such that the potential risk of harm to a listed species or critical habitat is remote.”

or

“(3) The effects of such action on a listed species or critical habitat are (i) not capable of being measured or detected in a manner that permits meaningful evaluation or (ii) are wholly beneficial.”

The biggest clarification here is that Section 7 does not apply to actions that may indirectly adversely affect a listed species through the action’s effects on global processes, when the specified conditions apply (e.g., activity that is not anticipated to result in take and the potential climate change effects cannot be reliably predicted). For example, a project that may increase atmospheric greenhouse gases cannot be subject to Section 7 because of the possible global climate changes and subsequent adverse side-effects to polar bears.

By adding the above “applicability” language, a Federal action agency may in other select instances avoid Section 7 consultation, not previously granted in the Rules and Regulations. In practice, this may not change much (e.g., action agencies often make a “no effect” determination without consultation with USFWS, despite this not being previously and explicitly allowed in the rules and regulations). However, unlike previous policy, there will now be limited instances when a Federal action agency is explicitly allowed to make a “not likely to adversely affect” (NLAA) determination and avoid informal and formal consultation, such as when the action is not anticipated to result in take and the effects are “not capable of being measured or detected in a manner that permits meaningful evaluation.” The option for informal consultation remains, and it is yet to be determined how Federal lead agencies will proceed in (or avoid) making NLAA determinations independent of USFWS and/or NMFS consultation.

The Department of the Interior hopes this will reduce the burden to USFWS and NMFS biologists who are hampered with myriad consultation requests. They argue that since the implementation of the Section 7 Consultation rules, Federal action agencies have become skilled at assessing for themselves the potential effects on threatened or endangered species, and, therefore, will be capable of determining whether or not the applicability criteria may exclude the action from Section 7 Consultation requirements.

The rule also makes several other noteworthy changes. It clarifies the requirements for analysis of indirect effects by defining these effects as “those effects for which the proposed action is an essential causes, and that are later in time, but still are reasonably certain to occur.” The rule gives guidance on what an “essential cause” is: “If an effect will occur whether or not the action takes place, the action is not an essential cause of the indirect effect.”

Finally, the rule gives a timeline for informal consultations. The Federal action agency may terminate informal consultation if the USFWS and/or NMFS has not acted on the request for concurrence within 60 days. The USFWS and/or NMFS may extend, in writing, the deadline an additional 60 days beyond the original 60-days.