Section 7 and Section 9 are the two main substantive provisions of the Endangered Species Act (ESA) that may come into play with an application for a certificate of public convenience and necessity under Section 7 of the NGA. Section 7 of the ESA requires federal agencies to ensure that their actions are not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat of such species. 16 U.S.C. § 1536(a)(2). Section 9 of the ESA makes it unlawful for any person to “take” any endangered or threatened species. 16 U.S.C. § 1538. “Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. § 1532(19). In turn, “harm” is defined by regulation to include modifications of a species’ habitat that would injure a member of the species by significantly impairing its feeding, breeding or other essential activities. 50 C.F.R. § 17.3. There is an exception to the takings provision; the Secretary of the Interior may grant a permit for any taking otherwise prohibited by Section 9 “if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B).
Procedurally, Section 7 of the ESA requires an agency proposing to take an action to inquire of the Fish and Wildlife Service (FWS) (or the National Marine Fisheries Service if the species is under their jurisdiction) whether any threatened or endangered species “may be present” in the area of the proposed action. 16 U.S.C. § 1536(c)(1). The Commission’s regulations provide that the project sponsor serves as the Commission’s non-federal representative for purposes of informal consultations with the FWS. 18 C.F.R. § 380.13(b)(1) (2006). Unless the FWS indicates that the proposed project is not likely to affect adversely a specific listed species or its designated critical habitat, the project sponsor must prepare a “biological assessment” to determine potential impacts that could result from the construction and operation of the proposed project on the listed species. 18 C.F.R. § 380.13(b)(5)(ii). If the assessment determines that a threatened or endangered species “is likely to be affected,” the agency must formally consult with FWS. 16 U.S.C. § 1536(a)(2). During formal consultation, the Commission, the FWS and the applicant will coordinate and consult to determine potential impacts and mitigation that can be implemented to minimize impacts. 18 C.F.R. § 380.13(d)(2).
The formal consultation results in a biological opinion issued by the FWS. 16 U.S.C. § 1536(b); 18 C.F.R. § 380.13(d)(4). The biological opinion may conclude that: (1) the proposed action does not jeopardize endangered or threatened species or destroy or adversely modify critical habitat; (2) the proposed action does jeopardize endangered or threatened species or adversely modify critical habitat, but that there are reasonable and prudent alternatives that will avoid jeopardizing the species or adversely modifying critical habitat; or (3) the proposed action jeopardizes endangered or threatened species or adversely modifies critical habitat without alternatives. 50 C.F.R. § 402.14(h)(3). If the FWS determines that the project can go forward as proposed or as modified by a reasonable and prudent alternative, the biological opinion will include an “Incidental Take Statement” which sets forth terms and conditions for the agency action. 16 U.S.C. § 1536(b)(4). Any taking that is in compliance with the Incidental Take Statement “shall not be considered to be a prohibited taking of the species concerned.” 16 U.S.C. § 1536(o)(2).