Reasonable and Prudent Alternatives Endangered Species Act Section

Reasonable and Prudent Alternatives Endangered Species Act Section 7 Case Law Ø By statute and regulation, Reasonable and Prudent Alternatives must: Avoid the likelihood of jeopardy or adverse modification l Be consistent with the intended purpose of the action l Be consistent with the scope of the action agency’s legal authority and jurisdiction l Be economically and technologically feasible Melanie Rowland l Office of NOAA General Counsel 1

Reasonable and Prudent Alternative (RPA) “alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, that is economically and technologically feasible, and that the [relevant FWS or NMFS] Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat” 2

Agency’s Scope of Authority Ø RPA elements where the action agency shares some responsibility or control over an action, operation, or facility count as valid RPA elements only if they are reasonably certain to occur l l Ø National Wildlife Federation v. National Marine Fisheries Service, 481 F. 3 d 1224, 1241, fn. 16 (9 th Cir. 2007) Natural Resources Defense Council v. Kempthorne, 621 F. Supp. 2 d 954 (E. D. Cal. 2009) Measures that are completely outside the control of the action agency or that consist merely of an action agency's encouragement to another entity to take certain actions are not valid elements of a RPA. 3

Avoidance of Jeopardy Ø Jeopardize l “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both survival and recovery of a listed species in the wild…” Ø Agency must “insure” that its actions are not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat 4

Avoidance of Adverse Modification “direct or indirect alteration that appreciably reduces the conservation value of critical habitat. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical. ” 5

RPA Evaluation Ø Resolve uncertainty in favor of the species l Ø Be “reasonably certain” that any mitigation identified will, in fact, occur l Ø National Wildlife Federation v. National Marine Fisheries Service, 481 F. 3 d 1224, 1241 (9 th Cir. 2007) Consider impacts on recovery, as well as survival l Ø Conner v. Burford, 848 F. 2 d 1441, 1454 (9 th Cir. 1988); Sierra Club v. Marsh, 816 F. 2 d 1376, 1383 (9 th Cir. 1987) National Wildlife Federation v. National Marine Fisheries Service, 524 F. 3 d 917, 931 (9 th Cir. 2008) Consider impacts on survival and recovery in both the short and long term l Pacific Coast Federation of Fishermen’s Ass’ns v. U. S. Bureau of Reclamation, 426 F. 3 d 1082, 1094 (9 th Cir. 2005) 6

Resolve Uncertainty Ø In favor of the Species Ø Akin to the “precautionary principle: ” l Provide a margin for error in case the hopedfor outcome of a measure does not materialize Ø Best available information may not allow for conclusive findings l Climate change 7

Context Ø Little margin for a federal action to place additional stress on already highly imperiled species Ø Not sufficient for the water projects merely to cause less harm to listed species than they did in the past. 8