U.S. Army Corps of Engineers and NOAA Enter into Joint Memorandum Regarding ESA Consultations for Existing Structures

March 2022

California Land Use Law & Policy Reporter, Volume 31, Number 6

On January 5, 2022, the U.S. Army Corps of Engineers’ (“Corps”) Civil Works Program and the National Oceanic and Atmospheric Administration (“NOAA”) signed an inter-departmental memorandum of understanding (“MOU”) aimed at streamlining the Endangered Species Act, 16 U.S.C. § 1531 et seq. (“ESA”) Section 7 Consultation for projects involving existing structures, such as bulkheads and piers.  In particular, the MOU seeks to resolve certain legal and policy issues regarding “how the agencies evaluate the effects of projects involving existing structures on listed species and designated critical habitat,” while accounting for recent revisions to the ESA’s implementing regulations.  (Mem. Between the Dept. of the Army (Civ. Works) and the Nat. Oceanic and Atmospheric Admin., Jan. 5, 2022 (“Corps/NOAA MOU.”).)


ESA Section 7 requires that federal agencies ensure any action authorized, funded, or carried out by such agencies is not likely to jeopardize the continued existence of endangered or threatened species (collectively, “special status species”) or result in the destruction or adverse modification of designated critical habitat of such species.  (16 U.S.C. § 1536(a).)  As part of this consultation process, federal agencies must identify the “environmental baseline” against which the action is evaluated.  (50 C.F.R. § 402.02.)  Federal agencies must then evaluate the “effects of the action” against that baseline to determine whether the proposed action may jeopardize the continued existence of a special status species or its designated habitat.  (50 C.F.R. § 402.14(c)(1)(i), (c)(1)(iv), (c)(4).)  Traditionally, confusion existed over what constituted an effect of the action and what could be included in the environmental baseline—in particular, for permits issued for proposed actions involving existing structures, which may include bulkheads, piers, bridge or other in-water infrastructure.

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