A recent AP article breathlessly reported that “documents show the U.S. Forest Service allowing a [mining] company to write a key environmental report on its proposed open-pit gold mine in Central Idaho.” The project proposed by Midas Gold would include both modern mining activities and the restoration of legacy operations at its site on the Payette National Forest, requiring the Forest Service’s review and approval of the project’s components on national forest lands. The article suggests that there is something wrong with having the company—a federal permit applicant—draft the project’s biological assessment to aid the Forest Service’s Endangered Species Act (ESA) compliance.
But even the most basic check of the ESA’s regulations—on the books for 34 years—shows that what the article describes is an entirely legitimate practice, endorsed by Congress and the ESA-implementing agencies—the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS). An academic “public lands expert” quoted in the article claims that having a company draft its own biological assessment wouldn’t pass “the smell test.” But that’s flat wrong—as is much of the article.
First, a project applicant being designated as a non-federal representative to prepare a biological assessment is a normal occurrence, and for good reason. The ESA consultation process is built on the foundation of good information. As Congress recognized, sometimes the project applicant is a key source of that information and needs to be included.
Second, the ESA consultation regulations (50 C.F.R. § 402.08) specifically provide that the Forest Service “may designate a non-federal representative” to “prepare a biological assessment.” That role includes important safeguards when a company prepares the draft biological assessment—safeguards that keep the company from writing “its own” biological assessment as the article claims. The company must work under the Forest Service’s guidance, supervision, and “independent review.” The Forest Service reviews the company’s draft assessment and has the “ultimate responsibility” for complying with the ESA consultation requirements as the federal land manager.
Third, the biological assessment is not the last word in evaluating the project’s species effects. It is a precursor report initiating the independent consideration and evaluation of species effects by the expert federal wildlife agencies in a biological opinion, the ultimate product of a formal ESA consultation. This system is well designed; it has worked across three and a half decades and six presidential administrations.
FWS and NMFS described the benefits of this approach in their 1986 rulemaking: “the designation of a representative allows the [Forest Service] to coordinate all of its environmental reviews, thereby saving time and resources to obtain a single, comprehensive analysis of the action and its potential impacts.” “The [company] does the groundwork (data compilation and synthesis); [but] the federal agency cannot delegate its” duties.
That is precisely what is happening here—the appropriate coordination by the Forest Service with the project applicant, all in service of the ESA’s goal of conserving threatened and endangered species and their habitats.