Army and NOAA to advance Endangered Species Act consultations

Memorandum will advance maintenance of the nation’s infrastructure, reduce permit backlog while ensuring ESA protections

The U.S. Department of Army’s Office of the Assistant Secretary of the Army for Civil Works (Army Civil Works) and NOAA Administrator have signed a joint resolution memorandum that articulates a national-level clarification on how the effects of projects involving existing structures, such as bulkheads and piers, on listed species and designated critical habitat in Endangered Species Act (ESA) Section 7 consultations are evaluated. The joint resolution memorandum was developed with the assistance of the White House Council on Environmental Quality.

The ESA requires the Army Corps of Engineers (Corps) to consult with NOAA

Fisheries before undertaking work or issuing permits to maintain structures that may affect species or habitat protected by the ESA. Consistent with the agencies’ respective statutory authorities and regulations, the memorandum explains how the agencies consult on infrastructure and maintenance projects that are important to the nation, while protecting species and habitat as required by the ESA. The memorandum explains differing approaches for Corps Civil Works and regulatory permit programs, and outlines when work on existing structures may result in effects to listed species and designated critical habitat.

The memorandum will be the basis for efficient permit decisions requiring ESA consultation. This improved efficiency will benefit the Corps, NOAA Fisheries, other federal agency applicants, and private project applicants such as ports, commercial facilities, and residential landowners. 

“In a whole-of-government effort, the Army and NOAA Fisheries have worked together to clarify our authorities and regulations regarding consultation under the Endangered Species Act to facilitate collaboration between our agencies. This effort furthers our commitment to both environmental protection and resilient infrastructure, allowing important construction work to proceed while ensuring the protection of listed species and their critical habitat,” said Assistant Secretary of the Army for Civil Works Michael L. Connor. “Most importantly, it also ensures the agencies have addressed tribal treaty right concerns, in particular the protection of salmon habitat. This effort demonstrates what federal agencies can do when we work together in a coordinated effort.”

“We appreciate the commitment of Army Civil Works to protect salmon and other species and their habitat while also maintaining infrastructure vital to our coastal communities,” said NOAA Administrator Rick Spinrad, Ph.D. “This solution is true to the law, the science, and the treaty rights of tribes who depend on these species.”

“I applaud the Army and NOAA for arriving at this path forward that will provide greater clarity and certainty for project applicants while also safeguarding cultural resources and wildlife,” said White House Council on Environmental Quality Chair Brenda Mallory. “In the Pacific Northwest, in particular, this is a good outcome for salmon, honors tribal treaty rights, and will improve the efficiency of permitting decisions in the region.”

This memorandum will also pave the way for the agencies to swiftly develop and put in place a programmatic biological opinion covering the Puget Sound in Washington State that will apply to the vast majority of outstanding projects, as well as new projects proposed in the coming years. The agencies are targeting the programmatic biological opinion to be issued no later than June 2022. 

The memorandum will provide effective, transparent, and reliable permit decisions that will address both existing and future requests. By clarifying when work on existing structures may affect species and habitat, the resolution contributes to the agencies’ overarching effort to protect salmon and the integral tribal treaty rights to harvest those fish.