September 2009 Vol. 236 No. 9


INGAA Pushes For Limiting ESA Consultation Procedures

Pipeline and other construction industries are pressing the federal government to make it easier for projects to pass muster with the Endangered Species Act (ESA), a law which presents barriers to federal agencies such as the Federal Energy Regulatory Commission when it comes to being able to quickly approve new pipeline applications. The Bush administration had issued a rule on December 16, 2008 which loosened up the terms of the section 7 “consultation” provisions, a move that was applauded by various industries involved in construction. For example, the new Bush policy would have allowed FERC in some instances to approve new pipeline construction without conferring with the Fish and Wildlife Service, part of the Department of Interior.

But in March, President Obama told the Departments of Interior and Commerce, which control the ESA, to ditch the Bush changes, go back to the status quo but to see whether in fact changes are need to modify section 7, whose terms were set more than 20 years ago. Subsequently, on May 4, the two agencies issued a request for comments which were due on August 3.

Endangered species concerns have been raised by environmental groups opposed to the four major proposed pipelines now vying for construction licenses in Oregon and at FERC. Those are the two, 600-mile-plus interstate Ruby and Sunstone projects originating in Wyoming and the mostly intrastate Palomar and the Pacific Connector projects.

As part of its certificate application to FERC, an applicant must submit an environmental report consisting of 13 resource reports. As part of Resource Report 3, addressing fish, wildlife, and vegetation, the applicant must: (1) identify all federally listed or proposed endangered or threatened species and critical habitat that potentially occur in the vicinity of the project; (2) discuss the results of informal consultation with the FWS and National Marine Fisheries Service (at Commerce) and include any written correspondence that resulted from the consultation. More broadly, applicants must describe the aquatic life, wildlife and vegetation within the proposed project, as well as their habitats; the possible effects of the project on species and their habitats; and site-specific mitigation procedures.

In its comments to Interior and Commerce, INGAA pressed for major changes in some of the definitions in section 7 and the way the consultation process now works. For example, INGAA wants to be able to use documents other than biological assessments as the basis for formal consultations, to have content requirements established for biological assessments when and if they are required, change the definition of “cumulative effects” to exclude the effects of future federal actions analyzed during the section 7 consultation process and a number of other somewhat technical yet significant changes.

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