ESA Section 7: Pre-spill Planning Updates and Emergency Consultations

In 2001 the United States Coast Guard (USCG) and the Environmental Protection Agency (EPA) (collectively referred to as Action Agencies) along with the Department of the Interior's (DOI) United States Fish and Wildlife Service (USFWS), and the Department of Commerce (DOC) National Marine Fisheries Service (NMFS) (collectively referred to as the Services) signed the 2001 Inter-agency Memorandum of Agreement (MOA)1. The purpose of this 2001 MOA was to “identify and incorporate plans and procedures to protect listed species and designated critical habitat during spill planning and response activities” (USCG, EPA, USFWS, and NMFS, 2001). The procedures outlined in the 2001 MOA are based on the need to meet legal requirements set forth in the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (Title 40 of the U.S. Code of Federal Regulations, Part 300 [40 CFR § 300]), the Clean Water Act of 1972, and the Endangered Species Act (ESA) of 1973 [16 U.S.C. 1531 et seq.]. The 2001 MOA established procedures to improve the conservation of listed species and the oil spill planning and response procedures delineated in the NCP. Streamlining this process is required by section 7(a)(1) of the ESA. (USCG, 2018). The MOA also coordinates the consultation requirements specified in the ESA regulations, 50 C.F.R. § 402, with pollution response responsibilities outlined in the NCP. It addresses three areas of oil spill response: 1) pre-spill planning activities; 2) spill response event activities; and 3) post-spill activities. (USCG, 2018). Though this document outlined procedures for how the Action Agencies and the Services were to comply with ESA Section 7, there still existed ambiguities and lack of national level guidance on how agencies were to comply with ESA Section 7. More specifically, these concerns pertained to pre-spill, emergency, and post-response operations. To alleviate the demand in the field for further ESA Section 7 guidance the National Response Team (NRT)2 established the NEC Subcommittee which quickly began developing guidance for federal agencies in order to assist these agencies maintain environmental compliance for oil and hazardous substance incident response operations. This paper will provide an update from the 2017 IOSC ESA presentation, discuss what products the NEC is currently developing and how previous NEC products have since been implemented.