Exchange, Others, Laud Corps and NOAA for Clarifying Joint Memo, Request Further Discussion

Letter to:  

The Honorable Michael Connor, Assistant Secretary of the Army for Civil Works
Ms. Janet Coit, Assistant Administrator for Fisheries, Department of Commerce-NOAA Fisheries

The undersigned associations represent states, local governments and special districts, and entities in navigation, flood control, stormwater management, water supply and wastewater treatment, and recreation across the country. We thank your staff for the May 13 webinar regarding NOAA Fisheries and the Assistant Secretary of the Army for Civil Works (ASACW) memorandum. Your staff essentially reiterated the January 6 presentation outlining the new path your agencies are charting with respect to Endangered Species Act section 7 consultations for existing structures. Our concerns were summarized in the attached slides.

MEMORANDUM BETWEEN THE DEPARTMENT OF THE ARMY (CIVIL WORKS) AND THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

1. Purpose. This memorandum resolves for the Department of the Army’s Civil Works program and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS) (the agencies) how the agencies evaluate the effects of projects involving existing structures on listed species and designated critical habitat in Endangered Species Act Section 7 consultations.

2. Background. The issue of how to evaluate the impacts of projects that involve existing structures under section 7 of the Endangered Species Act (ESA) implicates work on both existing U.S. Army Corps of Engineers (Corps) Civil Works projects as well as the Corps’ Regulatory Program review of a project proponent’s request for discharges or work associated with existing structures. On May 17, 2021, the Corps submitted a notification to the NMFS West Coast Region (WCR) to initiate an elevation of Policy Issues Regarding National Marine Fisheries Service West Coast Region’s Guidance for Assessing the Effects of Structures in Endangered Species Act Section 7 Consultation under the Clean Water Act 404(q) joint agency memorandum. On July 9, 2021, NMFS WCR responded to this request explaining, among other things, that NMFS did not believe the 404(q) elevation process was the appropriate tool to resolve the issues raised.

On September 1, 2021, both agencies and the Council on Environmental Quality (CEQ) received a request from the House Subcommittee on Commerce, Justice, Science, and Related Agencies and the Committee on Appropriations asking the agencies and CEQ to resolve the dispute.

Recent discussions between NMFS and the Office of the Assistant Secretary of the Army (Civil Works) have resulted in the mutual understanding of the legal and policy issues as documented within this memorandum.