a. The federal Endangered Species Act (ESA) requires Federal agencies to consult with U.S. Fish and Wildlife Service (USFWS) and/or the National Marine Fisheries Service (NMFS) – collectively known as "the Services" – to ensure that proposed Federal activities are not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat. FERC is the lead agency in this process, working closely with the Services. The Services encourage Federal action agencies to work with them early in the project development phase to ensure that discussions about the potential impacts of a Federal project or permit on listed species are adequately addressed. This early dialogue is referred to as pre-consultation and can also include the non-federal applicant (in this case Bradwood Landing). In this way, both the Services and the Federal action agency (and the non-federal applicant) are able to identify potential problems and solutions without delaying projects unnecessarily. The Federal action agency is responsible for determining the effects of a proposed action. If they determine that the action is not likely to adversely affect threatened and endangered species and the Service concurs in that determination, the obligation to comply with the ESA is fulfilled.

b. When a proposed project is likely to adversely affect listed species or critical habitat, the Services and an action agency enter into formal consultation. During formal consultation, the action agency and the Services may work together to identify what steps may be incorporated into a proposed project or into the biological opinion (the Services author the biological opinion and rely heavily upon the biological assessment, submitted by the Federal action agency but often prepared by the non-federal applicant, to define the proposed project and its effects on listed species and habitats to minimize effects on listed species or critical habitat. These steps are often minor adaptations to the project that the action agency and the applicant are willing to undertake to reduce the harmful effects, and in some cases provide benefits, to listed species. Action agencies and applicants often refer to these modifications as "mitigation."

c. When preparing a biological opinion, the Services are required by the ESA and its implementing regulations to include an incidental take statement that specifies reasonable and prudent measures and implementing terms and conditions to minimize the impacts of incidental take (incidental take is not just defined as death of an organism, but is also defined as harm, harassment, capture, etc; incidental means it occurs incidental to carrying out an otherwise legal activity).

d. In general, biological assessments are disclosure documents prepared to address information necessary for formal consultation between a federal agency (referred to as the "action agency") and NMFS and USFWS. The Biological Assessment prepared by Bradwood Landing is intended to address the two information request letters received in April and May 2007 from USFWS and NMFS, respectively, and incorporate clarifying information resulting from eight months of pre-consultation meetings between Bradwood Landing, the Services, and FERC. The primary gap in the initial FERC BA was insufficient analysis of effects on listed species and their habitats. The Bradwood Landing Biological Assessment began with FERC’s March 2007 Biological Assessment and was re-written to address the comments from NMFS and USFWS, as well as to present updated project information that resulted from on-going permit processes such as Clatsop County’s local permitting that shaped the changes to conceptual designs of Clifton Road.

Relative to the Final Environmental Impact Statement, the National Policy Act of 1969 as amended (NEPA), is our country’s basic charter for the general protection of the environment. It established policies, goals, and a mechanism for reaching these goals. The Council on Environmental Quality (CEQ) regulations implementing the procedural provisions of NEPA requires all Federal agencies to analyze the impacts of their proposed actions/programs and to include other agencies and the public in the process. Compared to a NEPA analysis found in Environmental Impact Statements which addresses all aspects of environmental impacts from socio-economic to geologic to environmental justice, the ESA requires that the BA provide a more detailed analysis in terms of the description of the proposed project, the potential effects on listed species, and offsetting actions.

The BA must provide:

a. A description of the proposed project (a detailed project description including information on construction timing and sequencing, design drawings, and operational information. Also includes all avoidance and minimization measures and offsetting actions (or compensatory mitigation);

b. An analysis of effects of the project on listed species and habitats including baseline conditions (a description of the habitat and general features of the action area including definition of the action area);

c. A species list including designated critical habitats occurring in the action area; and

d. A detailed effects analysis including effects determinations and request for consultation with federal agencies (NMFS and USFWS).

a. See above description of the consultation and preparation of biological opinion. The BiOp as it is commonly called is the authorization (or not) of the Federal proposed action.

a. USFWS (Portland office lead) and NMFS (Portland office lead) are the regulatory reviewers.

b. FERC is considered the Federal action agency, and their cooperating agencies including the USACE and the U.S. Coast Guard also review and submit the document.

c. Other federal and state agencies will review and comment on the Biological Assessment to FERC and potentially the Services including Oregon Department of Fish and Wildlife, Washington Department of Fish and Wildlife, the Oregon Department of Environmental Quality, the Washington Department of Ecology, the Oregon Department of Land Conservation and Development, and the Oregon Department of State Lands.

a. BA timeline: Discussions with the Services began at project scoping through the notice of intent which began in 2005. Interagency meetings and site visits occurred through 2007. NMFS and USFWS had opportunities to comment on the resource reports prepared for FERC in 2006, as well as on the first draft of the NSNG prepared BA in October (with a supplement in November) of 2006, the FERC BA submitted to the Services in March 2007, and on the DEIS published in August 2007. The Services provided information request letters to FERC in April and May of 2007. NSNG made response filings from June through August 2007, and Pre-consultation meetings with FERC occurred from August 2007 through March 2008. NSNG prepared responses and ultimately prepared a revised applicant-prepared BA.

b. BA cost: Approximately $6 million including all related studies and costs.

c. Effort: The BA represents three years of field and literature studies performed by dozens of biologists and engineers.

The mitigation plan is a key element in the Biological Assessment, and is also used by numerous state agencies to determine compliance with mitigation standards. Since each agency has differing standards depending on the resources impacted (wetland habitat, upland habitat, etc.), they will use the portion of the mitigation plan that applies to determine compliance. The Mitigation Plan has been provided in its entirety to allow for complete review by all agencies.

Once FERC determines that the BA contains "complete information" the agency will adopt it and request a formal consultation with the services. It usually takes 135 days to complete consultation if a BA contains "complete information."