ESA Section 7 Lessons from a Stalled Development in South Carolina

[Eric]

I came across this interesting article about a 9,000-acre development on the Cainhoy peninsula in South Carolina that was halted recently due to Endangered Species Act (ESA) issues. It looks like the developer had previously completed their Section 7 consultation with the U.S. Fish and Wildlife Service (USFWS) and U.S Army Corps of Engineers (USACE) when USFWS suddenly requested that the consultation be reopened to more fully analyze effects on endangered red-cockaded woodpeckers that reside there. The article also discusses a second, 4,000-acre development on the Cainhoy peninsula, for which ESA Section 7 consultation was likewise recently reopened when USFWS added the northern long-eared bat to its endangered species list while the development was in the clearcutting phase.

The timeline for these developments getting permitted is now highly uncertain...ESA Section 7 consultations like these can really drag out. Although the article mentions USFWS' 135-day clock for completing a formal consultation, consultation must still be completed regardless of whether this clock is met (i.e., the timelines are a "should" not a "shall"). I thought it was also interesting that the article addressed the question of whether the new consultation had actually started yet, since this is probably one of the most critical milestones of USFWS consultations and I don't think it usually gets much attention. For the article, USFWS is quoted as saying that USACE had submitted their biological assessment for the consultation, but formal consultation had “not occurred at this present moment.” I thought this was interesting use of passive voice by USFWS, since it's really USFWS who acts to start the clock on formal consultation after it deems that sufficient biological information has been received per 50 CFR §402.14(c)(1). Even if the developer responds instantaneously to every USFWS information request, they don't really control when the clock starts...USFWS can request information as frequently as it needs to, over as long a time period as it considers necessary, before determining that consultation has actually "initiated." Often this takes more time than the consultation period itself.

It's also unfortunate that the reason consultation for the 9,000-acre property had to be reopened was due to apparent error by the federal agencies characterizing the amount of longleaf pine habitat present on the property. Goes to show the importance of working with the federal agency to get things right. If they fail, the developer fails.

Overall, I think an important bottom line for this story, and other consultations like it, is that the reason that Section 7 causes such long delays often has more to do with the quality of human communication and project management skills than it does biological information needs per se. Hopefully USFWS can work effectively with the other stakeholders to communicate its information needs, including what it wants in terms of avoidance/minimization, without protracted back-and-forths causing undue and meaningless delays.

 

[Debashis]

The situation regarding the halted 9,000-acre development in South Carolina due to Endangered Species Act issues showcases the complexities of ESA Section 7 consultations. The uncertainties in timelines and the control exerted by the USFWS in initiating consultations underscore the challenges faced by developers in navigating federal regulatory processes. The importance of accurate information and collaboration with federal agencies is evident, emphasizing the shared responsibility between developers and regulatory bodies in ensuring compliance.

 

[Korner6]

I tried searching for an update to see if any progress has made on either side and have come up empty. What I did find, and was mentioned in the article above, was that there is a group called the "God Squad" made up of high level Presidential appointees who have the power to allow a species to go extinct. That's pretty shocking to me.

Maybe all this red tape is for the best if it's protecting wildlife?

 

[Eric]

I tried searching for an update to see if any progress has made on either side and have come up empty. What I did find, and was mentioned in the article above, was that there is a group called the "God Squad" made up of high level Presidential appointees who have the power to allow a species to go extinct. That's pretty shocking to me.

The Endangered Species Act Committee (aka "God Squad") was established through a 1978 amendment to the Endangered Species Act. The ESA was originally passed in 1972 but as it was originally written didn't include any provision allowing economic considerations to outweigh the ESA’s prohibition against jeopardizing the existence of a species. The snail darter controversy changed all of this. Discovery of the endangered snail darter (a small minnow-like fish) in the Little Tennessee River in 1973 prevented construction of the $100 million Teleco Dam project from moving forward. In response to this, Congress passed the ESA amendment establishing the God Squad, but the God Squad ended up siding with the darter and the Teleco Dam project still couldn't proceed. Ultimately, congress amended the ESA again to specifically exempt the Teleco Dam project from the ESA.

Maybe all this red tape is for the best if it's protecting wildlife?

It depends how much you value wildlife conservation versus the economic costs, which is both a philosophical and political question. Ensuing legal compliance with the ESA is very expensive in terms of agency review time, associated project delays, and costs to land developers (e.g., to replace any sensitive habitat their project will impact). Arguments about what's the right balance between environment and economy are as old as time, and they continue to play out with the ESA.