“No Effect” Determinations by Action Agencies Under ESA Section 7(a)(2): Avoiding Unnecessary Risks of Error

Vol. 29 No. 3

Ms. Feldmeier, an assistant district counsel with the U.S. Army Corps of Engineers, Savannah (Georgia) District, advises the district’s regulatory and civil works divisions. This article does not constitute the opinion of the U.S. Army Corps of Engineers.

The interagency consultation requirement of section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2) (2012), “reveals an explicit congressional decision . . . to give endangered species priority over the ‘primary missions’ of federal agencies.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978). Section 7(a)(2) is the “heart of the ESA” as it imposes substantive and procedural duties on federal agencies to carry out the ESA’s broad aim of protecting endangered and threatened species. Substantively, section 7(a)(2) requires federal agencies to ensure their actions do not jeopardize the continued existence of endangered or threatened species or adversely modify those species’ critical habitats. Procedurally, before engaging in any action that may affect threatened or endangered species, federal agencies must consult with the U.S. Fish and Wildlife Service (FWS) (for land-based species) or the National Marine Fisheries Service (NMFS) (for marine species).

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