49 ELR 11020 ENVIRONMENTAL LAW REPORTER 11-2019
standing rule that §7 applies only to “discretionary” fed-
eral ac tions,11 the government in several cases has argued
that it has no discretion in how it operates the federal dam s
at issue; if those operations were non-discretionary, they
would be exempt from §7’s procedura l mandate of “consul-
tation,” and could legally jeopardize a protected species.12
ese arguments have not always been persua sive, but the
government’s persistence in raising them—and disclai m-
ing the discretion that agencies normally enjoy having—
shows the ongoing interest in reducing the impact of the
ESA on federal dam operations.
Another dispute over the ESA a nd federal water projects
is the extent to which the impacts of existing dams and
their ongoing operations should be considered part of the
“environmental baseline,” and not attributed to the agen-
cy’s future dam operations. e eects of an a gency’s pro-
posed action are separate from the basel ine, which includes
other factors aecting the protected species and its habitat.
e distinction is important because the “jeopardy” deter-
mination applies to the eects of the agency’s actions—so
the more that negative impacts can be called part of the
baseline, the less likely it is that the proposed action itself
will be found to cause jeopardy.13 Although c ourts have
seen an existing d am’s presence as par t of the baseline, they
have largely rejected arguments that the baseline should
include ongoing operations.14
In 2018, the Donald Trump Administration sug-
gested revising the ESA implementing rules to attribute all
impacts of ongoing operations to the environmental base-
line.15 e suggested change16 would have applied to all
ongoing agency actions, but with especial ly major impli-
cations for federal dam operations. Shifting the impacts
of ongoing operations to the baseline would have greatly
reduced the chances that f uture operations would be
found to cause jeopardy, and thus modied to reduce their
impacts to listed species and their habitat. It may even have
meant that ongoing dam operations no longer needed to go
through the process of consultation to asse ss their impacts,
resulting in g reatly reduced protection for t hreatened and
endangered species a ected by federal dams.
In its nal ESA implementing rules, however, the
Administration stopped short of moving all ongoing opera-
tions into the environmental baseline. Under the new rules
announce d in Augu st 2019,17 the environmental baseline
12. See infra notes 83-88 and accompanying text.
13. See infra Part II.
14. See infra Section II.C.
15. Endangered and reatened Wildlife and Plants; Revisions of Regulations
for Interagency Cooperation, 83 Fed. Reg. 35178 (proposed July 25,
2018) (to be codied at 50 C.F.R. Part 402) [hereinafter Proposed Section
7 Rule Notice].
16. As discussed below, the Administration did not actually propose this change,
but its proposed rulemaking notice raised several problems associated with
ESA compliance for ongoing agency actions, and requested comment on
specic rule language that it suggested could address those problems. See
infra Section III.B.
17. Endangered and reatened Wildlife and Plants; Revisions of Regulations
for Interagency Cooperation, 84 Fed. Reg. 44976 (Aug. 27, 2019) (to be
codied at 50 C.F.R. Part 402) [hereinafter Final Section 7 Rule Notice].
includes the impacts of ongoing activities and existing
facilities that the consulting agency has no discretion to
modify. e Administration apparently decided against
the suggested rule because of well-founded concerns that
it would not withstand judicial review. But by developing
a specic alternative denition and pointedly requesting
comment on that language, it also tipped its hand, show-
ing its policy goal of greatly reducing the impact of §7 on
ongoing activities. ese and other statements in the §7
rulemaking notices point to issues that will surely arise in
the Administration’s case-by-ca se implementation of the
ESA, especial ly in the context of federal dam operations.
A caveat regarding the scope of this Article: by focusing
on the environmental baseline issue, and on the application
of §7 to federal dam operations, it does not address most of
the issues posed by the Trump Administration’s new ESA
implementing r ules.18 ese rules have been w idely seen as
a rollback of important ESA provisions regarding species
listing decisions, critical habitat designation, and protec-
tion for threatened species.19 A number of environmental
groups and 17 states have already led suit to challenge
these rules on both substantive and procedural grounds.20
e new rules—which represent the most comprehensive
regulatory overhaul of the ESA in dec ades21—raise many
important legal and policy questions, most of which are
beyond the scope of this Article bec ause they do not have
special signica nce in t he context of federal water projects.
e Article begins by introducing federa l dams and the
agencies that operate them, the procedural and substan-
tive requirements of ESA §7, and the signicance of §7 for
dam operations. Part II reviews t he meaning of the envi-
ronmental baseline in ESA consultations, then focuses on
18. Along with the new §7 implementing rules, id., the Administration issued
two other sets of revised ESA rules in August 2019. One set revised the
rules regarding listing and delisting of species, along with critical habitat
decisions. Endangered and reatened Wildlife and Plants; Regulations for
Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45020 (Aug.
27, 2019) (to be codied at 50 C.F.R. Part 424). Another set revised the rule
governing protection of threatened species, eliminating the “blanket 4(d)”
rule that gave a threatened species listed by the U.S. Fish and Wildlife Ser-
vice the same protection as if it were listed as endangered, so that all newly
listed threatened species will require protection through a special §4(d) rule
tailored to that species. Endangered and reatened Wildlife and Plants;
Regulations for Prohibitions to reatened Wildlife and Plants, 84 Fed.
19. See, e.g., Adam Aton, Endangered Species: Trump Admin Rolls Out Rule
Changes to Limit Law’s Reach, G, Aug. 12, 2019 (describing reac-
tion of environmental groups and congressional Democrats), https://www.
eenews.net/greenwire/2019/08/12/stories/1060931003. Although critics
have described the rule changes as gutting the ESA, the Trump Adminis-
tration insists that it has done no such thing. Kellie Lunney, Endangered
Species: Top Interior Ocial: More Reg Rewrites Are on the Way, G,
Aug. 22, 2019 (dismissing critiques from “the press in the D.C. bubble”),
20. e initial lawsuit was led by environmental groups within days of the new
rules being announced. Complaint for Declaratory and Injunctive Relief,
Ctr. for Biological Diversity v. Bernhardt, No. 3:19-cv-05206 (N.D. Cal.
Aug. 21, 2019) [hereinafter ESA Rule Challenge Complaint]. A few weeks
later, a geographically diverse group of states brought a similar challenge in
the same court. Complaint for Declaratory and Injunctive Relief, California
v. Bernhardt, No. 4:19-cv-06013 (N.D. Cal. Sept. 25, 2019).
21. As the Services noted in their proposed rule notice, the last “comprehensive”
revision to the ESA implementing rules was in 1986. Proposed Section 7
Rule Notice, supra note 15, at 35178.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.