Endangered Species Law & Policy

On November 24, 2014, the National Marine Fisheries Service (Service) issued (pdf) a new Biological Opinion (BiOp) (pdf) for the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit Program under the Clean Water Act.  The BiOp constitutes the conclusion of the formal programmatic consultation process between the Corps and the Service under the Endangered Species Act (ESA) for the Corps’ revisions to and renewal of expiring nationwide permits authorizing a wide variety of activities under the Clean Water Act, such as mooring buoys, residential developments, utility lines, road crossing, mining activities, wetland and stream restoration activities, and commercial shellfish aquaculture activities.

The Corps’ 2012 actions included reissuing 48 exiting nationwide permits and adding two new ones.  The new permits provide expedited review of projects that have minimal impact on the aquatic environment.   The categories of projects that may be included under the new nationwide permits include linear transportation projects, bank stabilization activities, residential development, commercial and industrial developments, aids to navigation, and certain maintenance activities.

The Service previously issued a biological opinion for the reissued and new nationwide permits in February 2012.  The 2012 biological opinion found that the Corps’ program jeopardized endangered and threatened species under the Service’s jurisdiction and resulted in the destruction or adverse modification of critical habitat that had been designated for these species due to a lack of adequate measures to protect such species and critical habitat.  The Service identified a Reasonable and Prudent Alternative (RPA) that would avoid the likelihood of such jeopardy.  The Corps expressed concerns regarding the RPA and requested reinitiation of formal consultation with the Service.    In July 2012, the Corps and the Service reinitiated programmatic consultation because the Corps modified the action and proposed additional changes that collectively may cause effects to listed species and critical habitat not previously considered in the February 2012 biological opinion.

The BiOp explains that the Corps has agreed to incorporate 12 additional protective measures into its Nationwide Permit Program to minimize any adverse effects to ESA listed and proposed species and designated critical habitat under the Service’s jurisdiction.  These protective measures include:

(1) development of information packages for prospective users of nationwide permits to facilitate compliance with Nationwide Permit General Condition 18;

(2) requiring a list of information on the location of the activity, area affected, and a narrative explanation of how the applicant satisfied requirements or conditions of the nationwide permit;

(3) consultation with the Service’s Regional Offices to identify new or modified regional conditions for nationwide permits;

(4) providing the Service with semi-annual reports on Corps Regulatory Permitting activities;

(5) utilization of the Corps’ discretion provided by Nationwide Permit General Condition 23, Mitigation, to require compensatory mitigation for wetland losses of less than 1/10 of an acre;

(6) issuing guidance to the Corps’ districts and divisions in conducting cumulative effects analyses;

(7) issuing guidance to the Corps’ districts to include a Special Condition to Nationwide Permit verification letters to require permittees to report incidents where certain species are injured or killed as a result of the discharge of dredged or fill material into the waters of the United States;

(8) within 30 days after a semi-annual report is provided to the Service’s Regional Office, there will be a mandatory meeting between Corps and Service staff to determine whether additional measures are necessary to address specific activities;

(9) providing training and guidance to ensure accurate data entry into the Regulatory Program’s automated information system;

(10) a rulemaking to modify Nationwide Permits 12, 13, 14, and 36 to require pre-construction notifications for certain proposed activities;

(11) providing the Service with the baseline impervious surface cover as of 2006 for each 10-digit HUC watershed inhabited by listed species and designated critical habitat; and

(12) including in its semi-annual report the amount of actual impervious surface cover that will result from activities authorized by the nationwide permits.

With the addition of these 12 protective measures, the Service concluded in the BiOp that nationwide permits would not jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of critical habitat.