Compliance with the Endangered Species Act
Two commenters stated that the proposed NWPs require Endangered Species Act (ESA) Section 7 consultation. Three commenters asserted that the proposed new and modified NWPs do not comply with ESA. One of these commenters said that the Corps does not adequately address the direct, secondary, and cumulative impacts on endangered and threatened species that will result from activities authorized by the NWPs. This commenter also stated that the Corps cannot rely on prospective permittees to conduct adequate investigations to determine whether endangered or threatened species or designated critical habitat occur on the project site. Three commenters indicated that compliance with ESA cannot be ensured for activities that do not require notification to the district engineer.
We have requested programmatic ESA consultation for the NWP program. We contend that the new and modified NWPs, through the requirements of General Condition 11, comply with ESA. We use the ESA interagency consultation regulations at 50 CFR Part 402 when determining compliance with ESA. Scope of analysis issues for ESA will be resolved through consultation with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). General Condition 11 requires non-Federal permittees to notify the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the project. The permittee shall not begin work on the activity until notified by the District Engineer that the requirements of the Endangered Species Act have been satisfied and that the activity is authorized.
Three commenters asserted that the Corps cannot issue the new and modified NWPs prior to completing programmatic ESA consultation. One commenter stated that programmatic ESA consultation does not obviate the need for regional and site-specific consultation. One commenter said that since Standard Local Operating Procedures for Endangered Species (SLOPES) have not yet been completed, the Corps cannot rely on SLOPES to ensure compliance with ESA. One commenter suggested that SLOPES should be developed for all issued NWPs.
We can issue the NWPs prior to the completion of the NWP programmatic ESA consultation, because issuance of the NWPs has not foreclosed opportunities to address endangered species and the NWPs already contain safeguards to ensure compliance with ESA. The programmatic consultation will provide additional assurance that the existing NWPs, as well as the new and modified NWPs issued today, have a formal process to develop any necessary additional procedures at the district level. The programmatic consultation will provide further assurance that the NWP program does not jeopardize the existence of any Federally-listed threatened or endangered species, or destroy or adversely modify the critical habitat of such species. Both the programmatic ESA consultation and the PEIS will address potential cumulative effects on endangered and threatened species and their designated critical habitat regarding the NWP program. We maintain that the SLOPES help ensure compliance with the ESA at the district level. Districts can meet with local offices of the FWS and NMFS at any time to modify or improve their SLOPES. Districts will enter case-specific consultation in any case where the district determines the proposed project may affect a threatened or endangered species.
In addition to NWP General Condition 11, division and district engineers have imposed and can impose additional regional conditions on the NWPs and case-specific special conditions to address endangered or threatened species or their critical habitat. For example, Corps regional conditions can prohibit the use of NWPs in designated critical habitat for endangered or threatened species or require notification for activities in areas known to be inhabited by threatened or endangered species. Some Corps districts have conducted programmatic consultation for specific geographic areas. Also, Corps districts have and will conduct case-specific Section 7 consultation for endangered species. These efforts usually consider the NWP program in that particular area. In summary, General Condition 11, Corps regional conditions, case-specific special conditions, and SLOPES will ensure that the NWP program complies with ESA.
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