Endangered Species Act and the Technical Advisory Group (TAG)
Working Together to Review Proposed Biological Control Agents

Bryan Arroyo

Biologist, Branch of Recovery and Consultation
Division of Endangered Species
U.S. Fish and Wildlife Service
4401 North Fairfax Drive, Suite 452
Arlington, Virginia 22203
Phone: 703-358-2106
FAX: 703-358-1735
E-mail: bryan_arroyo@fws.gov

Introduction

The Endangered Species Act is one of the nation's most comprehensive and important environmental laws. The Act has placed the United States in the forefront of species conservation and has served as model for other nations to develop endangered species legislation. Throughout its twenty-three year history, its core purpose, to conserve endangered and threatened species and the ecosystems on which they depend, remains in place.

Over the years, as species have been added to the endangered species list, the number of individual land use and land management actions that are affected by the listings have grown by a proportional amount. Affected activities include residential and commercial developments, farming and forestry practices, transportation and industrial growth, and water management and delivery systems, to name a few, and the number of apparent conflicts between actions and listed species have increased. The anecdotal, and generally inaccurate, "horror stories" that seem to make the news about these conflicts are often quick to link listed species with depressed economic growth, intrusion of big government into small enterprise, and a trend toward depletion of private property owners' rights to manage their lands with a minimum of government intervention. With the increased public debate regarding the Federal government's role (or lack of Constitutional authority) in influencing the affairs of the individual States, this mix of fact and perception has evolved into a national issue and unfortunately has framed so far the Congressional debate in the Act's reauthorization.

I will present a brief overview of section 7 (Interagency Cooperation)of the Act, what it requires of Federal agencies and how private interests may be affected. Then I will present a brief overview of the TAG and highlight ways in which the Service, through its active participation in TAG, can provide assistance and leadership for the prudent use of biological control agents, not only for the control of saltcedar, but for the myriad of other weed species that threaten the integrity of our natural ecosystems.

Section 7 --Interagency Cooperation (50 CFR Part 402)

Section 7 (Interagency Cooperation) is one of the most flexible, proactive, and important provisions of the Act. Section 7(a)(1) requires all Federal agencies to carry out programs for the conservation of endangered and threatened species. It thereby provides those agencies the authority to allocate their funds for such programs, but does not mandate expenditures. Section 7(a)(2) requires all Federal agencies to insure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any listed or proposed species or destroy or adversely modify critical habitat. The scope of Federal actions and authorizations includes granting any Federal permit (such as importation permits, quarantine permits, and release permits), granting a right-of-way to cross Federal lands, or any other Federal-private nexus where the Federal government has a degree of discretionary authority. Accordingly, although section 7 is specific to Federal actions, private interests are affected whenever a Federal action is required to authorize a private action.

Consultation is the process whereby the U. S. Fish and Wildlife Service or, where a class of listed marine species and certain anadromous fish are affected, the National Marine Fisheries Service (NMFS) advises Federal agencies on whether or not their actions are likely to affect listed species or critical habitats and, where adverse effects are anticipated, the appropriate Service determines whether or not the Federal action under review is or is not likely to "jeopardize the continued existence of" a listed species or "destroy or adversely modify" designated critical habitat.

The consultation process can be broken into two major parts: informal and formal. Informal consultation is comprised of all communications between an action agency (e.g., USDA/APHIS) and the Service that serve to determine whether or not the proposed action is likely to affect any listed species and, if so, whether or not there is likely to be an adverse effect. The Service frequently assists action agencies in determining if any listed species or critical habitats are in the action area (by providing the agency with lists of species and critical habitats), and has 30 days from receipt of a request for a species list to respond. If species or habitats are present, the Service can also assist the agency by recommending project modifications that will avoid adverse impacts on species, thus avoiding the need for "formal" consultation. Where the action is a "major construction activity" as defined in the National Environmental Protection Act, the agency must provide the Service with a "biological assessment" that determines whether or not the action is likely to adversely affect listed species or critical habitat. The biological assessment is frequently drawn from a Draft Environmental Impact Statement's chapter on the effects of the action.

A Federal action agency may designate a non-Federal representative (frequently, the applicant) to conduct informal consultation or prepare a biological assessment by giving written notice to the Director of the Service. If a permit or license applicant is involved and is not the designated non-Federal representative, then the applicant and the Federal agency must agree on the choice of the non-Federal representative (50 CFR 402.08).

Should a Federal agency determine that any of their anticipated actions may adversely affect a listed species, that agency is required to initiate formal consultation with the Service or NMFS. The agency must provide the Service with a description of the proposed action and the area to be affected, and must include an analysis of the action's effect on species and/or designated critical habitat. Section 7 regulations (50 CFR 402.14(c) and (d)) require that the federal agency is responsible for providing the "best scientific and commercial data available," and the scope of what is included will likely be determined by the scope of the proposed project. Where a permit applicant or other non-Federal party is involved, the action Federal agency will frequently require that other party to develop the required background information.

After initiation of formal consultation, the Federal agency and any applicant must not make any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation of alternatives which would avoid jeopardy to a listed species or adverse modification of critical habitat (50 CFR 402.09). Only a very small class of actions involving true emergencies (e.g., forest fires, threats to life, and natural disasters) are exempt from consultation prior to action; consultation is, however, required soon after the emergency has passed. The Service works closely with the Agency responsible for responding to the emergency to provide any technical advise on alternative actions that could be taken during the emergency response to minimize any effects to listed species, while effectively and efficiently handling the emergency.

For non-emergency situations the Service has up to 90 days are provided for formal consultation, and the Service has up to an additional 45 days to complete a "biological opinion" which states whether or not the activity "is likely to jeopardize" and/or is likely to "destroy or adversely modify" critical habitat. During this 135-day period, the Service reviews all relevant data, evaluates the current status of the listed species or critical habitat, and formulates a biological opinion of "jeopardy" or "no jeopardy" and/or is or is not likely to destroy or adversely modify critical habitat.

To "jeopardize the continued existence of" means to engage in an action that is reasonably expected to reduce appreciably the likelihood of survival and recovery of species (in the wild).

To "destroy or adversely modify critical habitat" means a direct or indirect alteration of physical or biological features by a Federal action that diminishes the value of critical habitat for both the survival and recovery of a listed species.

In reaching these determinations, the Service considers the status of the species, the environmental baseline (essentially, the overall health and distribution of the species prior to undertaking the proposed action), the direct and indirect effects of the action, and the cumulative effects of other anticipated actions that may affect the species.

Where a determination of jeopardy or adverse modification is made, the Service must develop "reasonable and prudent alternatives" that avoid jeopardy, can be implemented consistent with the intended purpose of the action, are within the agency's authority, and are economically and technologically feasible. These are developed in cooperation with the Federal agency and the applicant (if any).

Where an applicant for a Federal permit or other Federal authorization is involved, the action Federal agency is still the entity that initiates formal consultation and the Service still produces the biological opinion. However, the applicant can review drafts of the opinion and can require that consultation not be extended more than 60 days beyond the normal 90-day consultation period.

In summary, consultation is the process by which the Service advises federal action agencies on how to ensure that their actions do not jeopardize the continued existence of listed species, and all Federal agencies are required to consult on any action they fund, authorize, or carry out that may adversely affect listed species or critical habitat.

Should an agency receive a jeopardy opinion, and should there be no reasonable and prudent alternatives that avoid jeopardy, the agency can apply for an exemption to section 7(a)(2). This process is described at section (7)(e). In the 23-year history of the Act, exemptions have only been granted twice: for the Grayrocks water diversion project in Nebraska and for portions of the Northwest Forest Plan.

To put his in perspective, since 1987 the Service has reviewed approximately 186,000 projects for possible impact on listed species. Of these, 5,046 (2.7%) were found to adversely affect those species, requiring formal consultation. On average, only about 12% (607 of 5,046) of these consultations resulted in biological opinions determining that the action would likely jeopardize listed species. Of these 607 jeopardy opinions, 100 had no reasonable and prudent alternatives; in other words, the projects were blocked due to endangered species concerns. Eighty-seven of the 100 were directly related to the Northwest Forest Plan. This represents a very small percentage of the 186,000 projects reviewed.

This record is testimony to the Service's success in working with Federal agencies to identify conflicts with listed species in the early phases of project planning; develop practical solutions that allow the projects to go forward with, for the most part, only minor modifications in project design or timing; and aid Federal agencies in their mandate to conserve listed species.

The key to successful consultation is for the action agency and the applicant to communicate openly EARLY in the project design stages. This serves to allow the Service to advise on potential endangered species conflicts and develop alternatives with the action agency before time and money have been invested. It is the cheapest, quickest, and most efficient way to aid agencies in meeting their ESA obligations and allow applicants to plan and implement their projects. Cooperation and communication with action agencies and applicants at the local level is the best guarantee to success. Reticence to communicate freely (on the Service's, action agency's, or applicant's parts) based on fear of the process, lack of knowledge, or institutional culture usually leads to federal agencies not being able to accomplish their mission and perpetuates the cycle.

The Service and the National Marine Fisheries Service have developed policies over the past several years that have served to open the consultation process. These final and developing policies foster increased interaction with the States, Tribes, permit applicants, and the public in general, and make the Endangered Species Act work more efficiently while being more responsive to public interests. Many of these have a direct impact on how section 7 is implemented:

Ecosystem Approach to the Endangered Species Act:

--clarifies the role of activities undertaken by FWS and NMFS in protection and recovery of ecosystems in all aspects of ESA implementation. The approach emphasizes healthy ecosystems, multi-species listings, and multi-species recovery plans. Ecosystem-level analysis to evaluate the impact of federal actions vis-a-vis section 7 and working with federal agencies to develop reasonable and prudent alternatives and conservation recommendations that have ecosystem-wide benefits will improve section 7's efficacy in conserving species.

Information Standards Under the Endangered Species Act:

--provides criteria, establishes procedures, and provides guidance to ensure that decisions made by the FWS and NMFS under the authority of the ESA represent established scientific standards based on the best scientific and commercial data available. Such standards serve to improve the soundness of section 7 documents, increasing their reliability.

Peer review in Endangered Species Activities:

--clarifies the role of peer review in ESA listing and recovery activities. The policy is intended to complement, not circumvent or supersede the current public review processes in the listing and recovery programs. When requested by the consulting federal agency, the Service will provide them a draft biological opinion for their independent evaluation. The action agency has the opportunity to allow outside experts to review and comment on the document.

Role of State Agencies in Endangered Species Act Activities:

--clarifies the role of State agencies in activities (prelisting conservation, listing, consultation, habitat conservation planning, and recovery) undertaken by the Services under the authority of the Endangered Species Act. Recognizing the value of information States may be able to provide during consultations, the Services will keep States apprised of consultations and will solicit their participation in information gathering and review.

Role of Tribes in Endangered Species Act Activities:

--recognizes the special political status of tribes and their right to be kept apprised of federal actions affecting trust resources and Tribal lands and interests. Affords them opportunities afforded to States to participate in information gathering, exchange, and review.

Technical Advisory Group (TAG)

The Technical Advisory Group's (TAG) mission statement is quite simply "To facilitate the safe use of biological control of weeds in the environment." The use of these biological control agents is an alternative to the use of historical or conventional wed control methods (e.g., chemical and mechanical). However, these agents are most often used in association and supplemental to conventional control methods. It is important to note the words facilitate and safe in the mission statement because these two words frame the current discussions and concerns in the biological control arena.

The control of an exotic in this context "exotic" means alien to the specific ecosystem under consideration. species with a control agent as exotic as its target must be throughly examined before adoption. In the past whenever such an approach was not throughly studied the results in the long-term have proven disastrous. However, this concern must be measured against the prize of inaction. As long as the safety portion of this equation is treated adequately and reasonably, our concerns regarding the use of biological control agents should be adequately addressed.

TAG's objective is quite clear. "To provide an exchange of views, information, and advise, thorough TAG, for individuals who plan to ask various Federal and State regulatory agencies for permission to release these agents into the environment." Although TAG has no legal mandates or powers, it carries a lot of weight in the minds of decision makers. Through the years TAG has provided scientifically credible reviews of petitions for different kinds of authorizations.

However, these reviews were not meant to serve as a compliance mechanism for the ESA. This has resulted in the current situation with a number of biological control projects that have been either altered or halted in the last few years (e.g., saltcedar control). This should not be viewed as TAG failure, since their mission and objective do not include compliance with the ESA. The operating procedure for TAG is quite involved and has worked well for a number of years

The Service, through its representative, has begun to delineate ways to facilitate ESA compliance with two or the three agencies involved in the biological control regulation. The Service has already met with APHIS and ARS to discuss possible ways to supplement current procedures to ensure adequate and timely consideration of listed, proposed, and candidate species. We are very interested in the development of an Memorandum of Understanding that would include clear guidance for all parties on how to most effectively and efficiently comply with the ESA, while developing safe and appropriate biological control programs.

The problems are not merely inadequate compliance with ESA. There also many unanswered questions in the areas of permanence of agents, host specificity, habitat range, behavioral traits, and biological interaction, among others, that require careful consideration from all stakeholders in the evaluation of control agents. In some cases what is considered acceptable by the biological control community is not acceptable from an ESA point of view. An agent is said to be host specific is it can only complete its entire life cycle on the targeted weed species. As desirable as this may sound, such an agent, at least theoretically, could result in the extinction of a species.

For illustrative purposes lets assume that there are only 2 individuals species X left within the release site of a control agent found to be "host specific" as described earlier. However, this agent will also occasionally feed on the reproductive structures of species X. This occasional feeding may not eliminate these individuals, but it will certainly leave the species especially vulnerable to a catastrophic event. Although the species was already vulnerable to a catastrophic event, the "occasional" feeding of the "host specific" control agent has also eliminated any chance of reproduction of those last individuals.

Unfortunately, we are faced with the challenge of trying to control a weed that may eventually eliminate and significantly change the landscape where species X occurs, while trying to ensure that our control efforts do not cause more than harm to the very species and ecosystems we are trying to conserve.

It is only through the proactive participation of the Service in the TAG and through the development of effective and efficient ways for the regulatory agencies to comply with section 7 of the Act, that the current problems hindering the development and implementation of biological control programs will be resolved and more importantly avoided in the future.

Conclusion:

The theme throughout much of this paper is something, I think, that the Service has always intuitively known, but, perhaps, had allowed to slip into the background more than it should have. Simply put, conserving endangered species and their habitat is not something that any individual governmental agency can accomplish alone. Without the support of the overall population, landowners, State and local governments, and affected industries, success will be difficult, if not impossible. Going it alone builds ill-will, misunderstanding, and a "we/they" approach that is limited in what it can accomplish. The reality of getting the Act reauthorized has helped us re-focus on this vital consideration, and I believe the Act, and the species and habitats it is designed to protect, will benefit.

The key to meeting everyone's needs is for the permitting agencies, in this case EPA and USDA, to know the law, its implementing regulations, and the Service's policies. These agencies and the Service MUST provide advise on all necessary environmental compliance, its just good business practice. The easiest and most efficient way to accomplish this is to maintain frequent, informal, and honest communication among all parties at all levels.


Return to Workshop Home Page or continue on to the next paper "Herbicide Options: Control of Saltcedar with Garlon (Triclopry)".

For information on the outcome of this workshop or integrated weed management in the Pacific Region (Region 1), U.S. Fish and Wildlife Service, Portland, OR, contact: Scott_Stenquist@fws.gov

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