Cautionary Tales and Real Stories – What else does the latest USACE Memo tell us?

Amongst the annoying Job Advertisements and links to questionably-relevant internet articles, LinkeIn occasionally incubates a little Gem. Those in the Mitigation Industry – be it Endangered Species or Wetlands – might be just as interested as I in the elegant discussion concerning the US Army Corps’ of Engineers’ recent memo. I like to share.

The Memo was titled “ESA Guidance”, and it talked about clarifying how the US Army Corps of Engineers (USACE)  goes about implementing and honoring the Endangered Species Act (ESA), as it applies to their Civil Works Programs under its mandate of the Clean Water Act (CWA)”

Such an interaction between the ESA and the CWA, and the presence of two pieces of separate but connected laws governing the Mitigation Industry, is one of the most curious elements of the way species and wetlands are conserved in the USA. It’s an interesting perspective on how conflicts of interest – between the environment and the economy, and between existing legislation – plays out.

Mitigation can be required under the CWA only, or as compensatory mitigation under the ESA only, but when the project calls for it, the process of aligning the ESA (vis a vie the environment) and the CWA (vis a vie the economy) can get complicated. This latest USACE Memo seeks to provide some clarification. The LinkedIn discussion asks real practitioners if the direction given by the memo is reinforcing what’s already being done, or if it’s a new direction with new implications. It’s interesting to get this perspective if you’re working in mitigation and the ESA (and CWA) each day in the USA, but it’s also interesting to follow from outside the USA system as other countries think about how to set up their mitigation systems. If you’re looking for cautionary tales, surely this CWA/ESA tension satisfies.

So first a little more ‘tale’ than ‘caution’, let me explain that where the USACE undertakes a civil works project to satisfy the CWA,  they are also required to comply with the ESA if there are Endangered Species that may be impacted. The USACE must work with the Fish And Wildlife Service (FWS) to obtain a Biological Opinion, determine if Mitigation is required, and perhaps consider Reasonable and Prudent Alternatives (PRA’s) to their proposed project if it is the FWS’s Opinion they are appropriate. But of course, this can get complicated.

The CWA makes certain things a priority for the USACE: navigable waterways, flood control, water supply etc. Which priority trumps to say what the project should look like and what kind of mitigation is required at the end of the day? Implementing the CWA may not always align perfectly with ESA obligations and the Memo seeks to clarify how the USACE might balance these obligations, and prevent the USACE funding large-scale environmental projects that sit awkwardly with their primary CWA obligations. It’s interesting to see how the many needs of the environment, the economy and different government departments can be managed or otherwise in the real world.

Cautionary Tale Two: it’s hard to balance the interests of conservation (e.g. the ESA) and the economy (e.g. the CWA). It’s even harder when you’re trying to do this within a single department or single piece of law. Instead, when the USACE and the FWS have to work together, both sides are represented. Conflicts of interests within departments are more removed. Efficacy should prevail.

But in practice such efficacy is difficult. For example, when the USACE is presented with a Reasonable  and Prudent Alternative, do they choose that which is best for the ESA or their CWA? Ore perhaps a civil works project has been implemented prior to the ESA’s birth in 1973 and so did not consider it’s species impacts. How do we deal with these impacts today, and are they now required to Mitigate even though the permit has already been issued? This is something to think of for areas or countries trying to design mitigation legislation amongst existing law. And who do you charge with protecting the environment, versus who for the economy – given that effective mitigation is about effective outcomes for both. Cautionary Tale Two: It’s not as easy as it looks.

Of course, the legal nuances in the USA between the USACE and FWS far more sophisticated than can be presented in a few short paragraphs, and in the vast majority of cases these two disparate departments do surprisingly well.

But it’s still valuable to read about the experience of practitioners on the ground reveals the challenges of ensuring the USACE complies with both the CWA and the ESA according to law.

So back in my favored LinkedIn discussion – (Thanks Steve Hall from Greater Seattle!!) – Steve asks:
“The guidance establishes that in formal consultations, it is up to the Corps to decide which “reasonable and prudent alternatives” are appropriate to avoid jeopardy or adverse modification, rather than the Services. Is this a major shift in thinking, or just a clarification?”

Read the discussion. Listen to what practitioners are saying. And think about how you or the decision-makers where you are would handle a charge similar to that given to the USACE. Mitigation is one element of balancing the environment, the economy and society: don’t the USACE know it.

While each of the discussion participant’s gives a useful real-world insight to the workings of one of the worlds most established mitigation industries (and the complexities that lie under the surface), perhaps Nell McPhilips has the best take-home message for on-lookers”

“I think this memo just reflects the Corps maturity in understanding their responsibilities under ESA over the years. The Corps is not picking and choosing the RPAs but they are doing due diligence to remind staff that RPAs must be feasible from both a technological and economic point of view. As for baseline this was another area we conferred and coordinated with the Corps on the Missouri River effort. Emphasizing the definition of the action is definitely is necessary for developing any RPAs and the foundation of any biological opinion. Another good reason for cooperation and coordination. The Services and the Corps must work together for successful implementation of ESA.”

Cautionary Tale Three: Mitigating environmental impacts is tough. Legislating for them can be tougher, and it is a multifaceted problem to balance the mix (and potentially, conflict) of interests. It’s a worthwhile and rewarding pursuit for environmental planners at any level of governance, but this kind of legislating shouldn’t be done lightly. Learn from what has gone before, and those in the US implementing these laws, and discussing them on lil’ ol’ LinkeIn.

ONLINE

Guidance Memo
http://planning.usace.army.mil/toolbox/library/MemosandLetters/13Jun11-ESA.pdf

NEWS/ANALYSIS

Legal Update: Army Corps of Engineers Issues New Endangered Species Act Section 7 Guidance
http://www.jdsupra.com/legalnews/legal-update-army-corps-of-engineers-is-53311/

Army Corps issues new ESA guidance
http://blog.pacificlegal.org/2013/army-corps-issues-new-esa-guidance/

 

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