Today, the Committee on Natural Resources held a hearing on “Federal Agencies’ Selective Enforcement of ESA Consultation.” The Environmental Protection Agency (EPA) refused to testify, despite the fact that, as the action agency implementing the Obama Administration’s new and existing coal-fired power plant rules, it is responsible for determining whether its proposed rules “may affect” a listed species or its critical habitat, pursuant to Section 7 (Interagency Consultation) under the Endangered Species Act (ESA). 

As Fish and Wildlife Service (FWS) Director Dan Ashe recently stated in a letter to Chairman Bishop: “EPA, as the expert agency on the Clean Air Act, is best positioned to understand if their rules will affect listed species or designated critical habitat.” 

The Department of the Interior (DOI) and the National Ocean Atmospheric Administration (NOAA) sent witnesses that testified to the EPA’s responsibility in initiating Section 7 consultation. No witness denied that the EPA’s power plant rule hit a “may affect” threshold for endangered manatees that rely on coal-fired power plants warm water discharge to survive cold snaps.

Michael Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks at Department of the Interior: 

“EPA’s responsibility was to evaluate…beneficial or detrimental effects that were reasonably certain to occur. That’s the same responsibility of any federal action agency has when considering this first step of the consultation process.”

"It is ultimately the responsibility of the action agency to determine whether to consult and whether to adopt the Services’ recommendations."

"Consultation begins with the determination, made by the action agency, as to whether a proposed federal action may affect a listed species or its critical habitat."

"In determining whether a proposed action may affect listed species or designated critical habitat, an action agency must consider both direct and indirect effects of the action."

"Action agencies are the appropriate entities for making such determinations at the threshold “may affect” stage."

"If a proposed action is likely to adversely affect a listed species or designated critical habitat, “formal consultation” between the action agency and the Service is required."

"We ultimately depend upon the action agencies to establish the effects of their programs, plans, or rules and determine whether their actions trigger the need for section 7 consultation."

Sam Rauch, Deputy Assistant Administrator for Regulatory Programs at NOAA Fisheries: 

"Formal consultation is required if an action agency determines a proposed action "may adversely affect" listed species or designated critical habitat."

"Federal agencies must also consult with the Services on activities that may affect a listed species and/or its designated critical habitat."

Click here for more information on the hearing.