Introduction

A central theme of the US Army Corps of Engineers’ Engineering With Nature initiative is the desire to “broaden and extend the base of benefits provided by projects to include substantiated economic, social, and environmental benefits.” Incorporating natural and nature-based features (NNBFs ) into the Corps’ water resource projects is one way to achieve that goal, but various administrative, economic, policy, legal, and other barriers stand in the way of greater implementation of NNBFs. In the face of these headwinds, it is essential that we look for tools that might propel NNBFs forward as essential elements of project design. The federal Endangered Species Act (ESA) could be just such a tool if the Corps commits to reviving a moribund feature of the statute – Section 7(a)(1) conservation planning.

Historically, the Corps’ implementation of the ESA has often frustrated by conflict and narrow vision. On the one hand, Corps staff operate under obligations to complete planning on tight timelines and to keep project costs in check. Meanwhile, wildlife protection agencies have stringent legal mandates – and the ever-present risk of litigation by outside parties – ensuring that they carefully analyze the impacts of Corps projects and seek alternative approaches that help threatened and endangered species but may conflict with Corps priorities. The very nature of the ESA’s standard consultation process creates this antagonistic environment, and the Corps is just one of many “action agencies” that struggle to efficiently pursue their missions while meeting the demands of the ESA.

It is, however, possible for action agencies to make proactive investments in species conservation that can reduce the likelihood of conflict with wildlife agencies when it comes time to engage in project-based ESA consultations. Indeed, the Corps boasts one of the most remarkable success stories on this front. As a result of Corps efforts in collaboration with the Fish and Wildlife Service, the once-endangered Interior Least Tern has been delisted and consultations along the Missouri and Lower Mississippi Rivers have become more efficient. The case deserves added attention by researchers and practitioners interested in nature-based solutions to water resource challenges because the Corps’ conservation efforts involved testing and scaled implementation of NNBFs that benefitted the birds but also delivered flood risk reduction and river navigation benefits.

This article examines how the story of the Corps’ involvement in recovery of the Interior Least Tern might hold promise for increased implementation of nature-based solutions in other Corps water resources projects.

ESA Section 7(a)(1) is the important legal tool that creates incentives for proactive species conservation efforts by action agencies such as the Corps. Section 7(a) (1) requires all federal agencies to carry out their programs in ways that promote the conservation of at-risk species. That is, all agencies’ programs should help threatened and endangered species populations recover to a point where federally mandated protections are no longer necessary. Section 7(a)(1) is an oftenoverlooked feature of the monumental statute, for legal and practical reasons described below.

Others have written about the theoretical importance and practical value of ESA Section 7(a)(1) conservation programs from a species-protection standpoint. What this article adds is a connection to the growing national interest in nature-based solutions to flood-risk management.

Nature-based solutions used in flood-risk management projects often involve creating or protecting “green,” — as opposed to “grey” — engineering features. Coastal wetlands and preserved riparian zones between a river channel and a levee are but two examples. While the flood-risk management professional sees these features in terms of their ability to absorb the impact of floodwaters, a wildlife biologist might view them as critical habitat for endangered species. ESA Section 7(a)(1) can bridge the gap between these two fields of environmental protection and promote ecosystem resilience that lies at the heart of the Engineering With Nature initiative.

Delisting the Interior Least Tern

Fewer than three percent of the threatened or endangered species formally listed under the ESA have recovered to the point where the statute’s protections are no longer necessary. That sad fact reflects both the precarity of the species that have been listed and the difficulty the federal government faces in altering human behavior to accommodate non-human needs. The Interior Least Tern (Sternula antillarum) is a notable exception. First listed in 1985, when biologists were only able to identify about 1,400 to 1,800 remaining birds, the Interior Least Tern was recommended for a recovery-based delisting in 2013. By that time, the population had grown to more than 17,500 birds in a habitat extending 4,600 kilometers along river channels in the Great Plains and Lower Mississippi Valley. It is a resounding success attributed largely to the actions of the US Army Corps of Engineers.

The Eastern Least Tern is abundant along US coasts, where its nesting habitat — sandy soil with minimal vegetative cover and near to water with small fish for forage — is plentiful. But by the mid-1980s, such habitat did not extend much into the interior of the country, where the “Interior” subpopulation’s range included areas along the Colorado, Red, Rio Grande, Arkansas, Missouri, Ohio, and Mississippi River systems from Montana south to Texas, and from New Mexico east to Indiana. Rivers had been dammed, channelized, and hardened against channel migration to promote navigation and flood control. These efforts resulted in elimination of many of the sandbars and shorelines where the birds could lay eggs and care for their young.

The Corps was singled out for playing a significant role in the Interior Least Tern’s habitat loss, especially along the Missouri and Lower Mississippi River systems. The Corps manages the Missouri’s flow using a system of interrelated reservoirs and dams, balancing irrigation needs, flood-risk reduction goals, and navigational necessities. And along the 900+-mile stretch of the Mississippi from the confluence of the Mississippi and Ohio Rivers downstream to Head of Passes, Louisiana (also known as the “Lower Mississippi”), the Corps is under congressional mandate both to maintain a navigation channel and to reduce the risk of loss and damage from the river’s inevitable floods.

Unlike the Missouri, the Lower Mississippi is not dammed. The engineering activities employed by the Corps to accomplish its navigation and flood-risk management goals along the Mississippi are varied, from dredging and dike building to levee creation and bank stabilization. Billions of dollars in federal funding have gone into the Corps’ work in these river systems for more than a century, and while the investments secured remarkable engineering and commercial success for the country, the result for the Interior Least Tern was near extermination.

After formally listing the Interior Least Tern as an endangered species in 1985, the US Fish and Wildlife Service (FWS) developed a recovery plan, pursuant to ESA Section 4(f). A recovery plan is intended to provide a “roadmap” for FWS and its partners to minimize threats to listed species, to enhance conservation, and to measure progress toward specific criteria that help determine whether delisting is warranted. Key features of the 1990 Interior Least Tern recovery plan were its target for overall species population, specific population targets for key river systems, and habitat-related recovery criteria that focused on ensuring bird colonies could lay eggs, care for their young, and avoid predation along “essential” reaches of several rivers.

The Corps features prominently in many aspects of this recovery plan. Managing river flows and adopting engineering practices more conducive to protecting habitat for the Interior Least Tern was vital to the species’ recovery. For example, allowing periods of high flow prior to nesting season can scour vegetation from sandbars to create suitable nesting habitat. Additionally, continually managing the flows through the nesting season or notching dikes can reduce terrestrial connectivity with nesting habitat, thereby preventing predators such as coyotes or raccoons from attacking vulnerable birds. Dredged material from navigation improvement projects can be used to maintain habitat. And alterations to bank stabilization tools (e.g., redesigning articulated concrete mats, using hardpoints in lieu of revetment, and strategic placement of woody debris) can improve foraging opportunities. In the decades after FWS published its recovery plan for the Interior Least Tern, the Corps implemented all these practices and the bird’s population recovered dramatically in some areas.

Foundations for Endangered Species Protection and NNBF Implementation in the Corps’ Civil Works Program

From a legal perspective, the Interior Least Tern’s recovery can be attributed to ESA Section 7, which establishes the programs whereby “action agencies” such as the Corps consult with wildlife protection agencies to ensure the ESA’s goals are met. This section will briefly summarize the basic tenets of Section 7 consultation. It begins with the familiar Section 7(a)(2) process, which requires project sponsors to consult with wildlife agency officials through a process beset with resource limitations and inherent conflict. It then focuses on the underutilized 7(a)(1) process, which is the option that has great potential to reduce regulatory burdens and improve project outcomes by encouraging action agencies to proactively invest in monitoring efforts and project design improvements that conserve threatened and endangered species.

Section 7(a)(1) creates opportunities for greater implementation of NNBFs in Corps Civil Works projects. Thus, in addition to summarizing consultation policies under Section 7, this section will outline the laws and policies that either require or encourage Corps staff to analyze whether NNBFs are suitable for certain projects. Subsequent sections of the paper will explain in detail how Corps staff can weave together species-conservation and NNBF-implementation mandates.

ESA Section 7(a)(2) – Avoiding Wildlife Extinction

In practice, the most consequential element of ESA Section 7 is the requirement that federal agencies must consult with FWS or NMFS (depending on the species at issue) to ensure that their actions do not jeopardize the continued existence of an endangered or threatened species or adversely affect listed species’ critical habitat. This practice is the well-documented and often controversial Section 7(a) (2) consultation process.

Corps staff begin by informally engaging with federal wildlife agency staff to determine whether endangered or threatened species (or designated critical habitat) might be directly or indirectly affected by the project. Corps staff then develop a “Biological Assessment” in which they describe anticipated impacts on species of concern and critical habitat, along with analysis of any alternative approaches.

Staff from the consulting agency — FWS and/or the National Marine Fisheries Services (NMFS), depending on the species affected — reviews the Biological Assessment and issues a “Biological Opinion” that either (a) concurs on a determination that the project will not jeopardize the species or adversely affect critical habitat as designed; or (b) finds jeopardy or adverse impact is likely and suggests refinements. The service’s “BiOp” will include “Reasonable and Prudent Alternatives” or “Reasonable and Prudent Measures” to protect the species, along with an “Incidental Take Permit” that excuses some degree of harm to the protected species (or “take” in ESA terminology) so long as the action agency adheres to certain required protective measures.

ESA Section 7(a)(1) – Promoting Wildlife Recovery

The second requirement of ESA Section 7 is for federal agencies to consult with FWS to carry out programs for the conservation of listed species; that is, programs that go beyond avoiding extinction and proactively work toward species recovery. This so-called Section 7(a)(1) consultation process is far less common (for reasons described in more detail below) but, as shown by the example of the Interior Least Tern, it holds potential to make an important improvement in terms of social-ecological governance.

The four key elements embedded in the text of Section 7(a)(1) are: (1) it establishes a mandatory duty (2) for all federal agencies (3) to consult with experts from FWS and/or NMFS (4) to promote conservation of listed species.

The first and second elements are clear enough; but what must an agency do to meet its consultation and conservation obligations?

Congress provided no guidance on fundamental procedural issues related to 7(a)(1) consultation. There is no further statutory text on how agencies should determine their priorities for consultation, the triggering events or timelines for beginning and concluding consultation, the scope of consultation, documentation requirements, relationship to other statutes, or other important considerations. Typically, federal agencies would draft implementing regulations to give their staff and other affected parties clearer direction on how to operationalize broad statutory language like ESA Section 7(a)(1). FWS and NMFS have not done so at a national scale.

Congress did, however, provide some substantive guidance on the conservation goal of Section 7(a)(1), defining the term to mean: to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.

Thus the term “conservation” is often equated with the concept of “recovery” for threatened and endangered species. Congress also provided examples of the methods and procedures an action agency might employ in furtherance of the conservation goal – “research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation,” to name a few.

WRDA Analytical Requirements – Encouraging NNBFs

In 2016, 2018, and 2020, as part of the biennial water resources appropriations process that funds Corps feasibility studies and construction, Congress directed the Corps to consider NNBFs in certain new studies and to report the results of analysis specific to NNBFs when requesting appropriations based on those studies. The requirements apply to flood risk management, hurricane and storm damage reduction, and ecosystem restoration projects. Most Corps feasibility studies are completed within three years of initiation, so the first studies subject to these new analytical requirements should be completed soon, with Chief’s Reports submitted to Congress in the coming years that might show whether mandatory analysis of NNBFs results in more extensive implementation.

‘Soft’ Mandates – Other Policies that Encourage NNBFs

Other incentives for Corps analysis of NNBFs can be traced to national water resource management policies. As an example of a national policy, the federal “Principles, Requirements and Guidelines for Water and Land Related Resources Implementation Studies” (PR&G) is ostensibly an effort to ensure that the Corps and all other federal agencies involved in water resources development plan their work in ways that maximize economic development, avoid the unwise use of floodplains, and protect and restore natural ecosystems. After several years of congressional restrictions on implementing this policy, the Corps has recently begun developing agency-specific procedures for the PR&G, which may lead to more robust consideration of NNBFs because of their broader socio-ecological benefits.

The Corps’ Environmental Operating Principles also encourage analysis of NNBFs, especially those related to fostering sustainability as a way of life throughout the organization, proactively considering environmental consequences, creating mutually supportive economic and environmentally sustainable solutions, and considering the environment in employing a risk management and systems approach through the life cycles of projects.

The Corps’ Engineering With Nature initiative is an investment in developing the technical capacities, knowledge base, and partnerships that would enable practitioners to incorporate NNBFs into the agency’s work.

NEPA Analytical Requirements – Connecting the Dots

In practice, most of the Corps’ socio-ecological analysis is documented for compliance purposes under the strictures of the National Environmental Policy Act (NEPA). NEPA requires agencies to analyze the environmental, cultural, and social impacts of their proposed actions and compare them to the impacts of several alternatives as well as a “do nothing” approach. Agencies have substantial leeway under NEPA in choosing alternative approaches for achieving project goals, but other substantive legal requirements may limit their choices. For instance, the WRDA-based requirements that the Corps analyze NNBFs for certain water resources projects ensures that the Environmental Impact Statements developed under NEPA include analysis of environmental consequences of flood-risk management efforts with and without NNBFs. NEPA only requires agencies to utilize the best available science, though, so if there is not enough information about the impact of NNBFs on species recovery, then the benefits may not help move that feature into the agency’s preferred alternative.

Section 7(a)(1) Conservation Planning and The Corps’ Civil Works Program

The Interior Least Tern’s recovery can be attributed to the Corps adopting a more recovery-oriented approach to considering the relationship between their work and the fate of vulnerable species in the project area.

This reoriented mindset that comes with ESA conservation planning holds great potential to improve NNBF implementation in the Corps’ flood-risk management programs and thus enhance project outcomes. If NNBFs are identified through conservation planning as likely to support species recovery, that knowledge can lead a project design team to incorporate NNBFs into a project where they had not been previously considered.

Based on documentary research and interviews with experts from FWS and the Corps, three concepts arising out of the Interior Least Tern success story should inform conservation planning in the context of the Corps’ flood-risk reduction work.

Conservation Planning Can Identify and Ensure Continued Implementation of Novel Approaches

Strategically cutting notches in dikes was a key component of Corps actions that promoted the Interior Least Tern’s recovery. The Corps initiated its dike notching program in the Lower Mississippi in the 1980s because of a desire to conserve valuable aquatic habitat. The dikes were originally constructed because they concentrate river flow into one primary channel, which in theory ensures sufficient flow in the channel during low water levels to avoid sediment buildup that might reduce channel depth and contains flow in that main channel during higher water events so that flow velocity might remove sediment from the river bottom and move it downstream. Depending on the size, shape, orientation, location, number, and alignment of dikes on a river, though, they can have dramatically different impacts. Thus, cutting a notch in a dike might improve aquatic habitat, but impacts on the Corps’ flood-control and navigation missions are not obvious. In fact, an analysis of how notching affected five dike fields on the Lower Mississippi, conducted by Corps staff during the development of the Interior Least Tern conservation plan, did not produce any conclusive trends, but showed that the impact of notching was “extremely dynamic” from year to year within the dike fields. In a sense, it was a happy coincidence only realized through the effort of ESA conservation planning that dike notching to improve aquatic habitat also conserves Interior Least Tern habitat. What’s more, the dike notching may be a more sustainable strategy than the other key tool for habitat creation that the Corps had attempted along the Missouri River – building islands in the river – which tended to get washed away in high flow events.

With this story in mind, it is easy to imagine how conservation plans focused on other threatened and endangered species might encourage greater utilization of NNBFs in the Corps’ flood-risk management programs or affect how NNBFs are designed. For instance, the endangered piping plover appears to prefer nesting in overwash areas in the South Atlantic and Mid-Atlantic areas of its range. Beach renourishment, dune restoration, and barrier island creation are important NNBFs in the coastal flood-risk management context, and conservation planning to support plover recovery might encourage designs that allow for or even encourage overwash in key areas. Overwash features on barrier islands may also have long-term flood-risk reduction benefits because they promote more sustainable sediment budgets by allowing sand to move from near-shore and beachface areas to back bay areas during storm events, where it can subsequently facilitate formation of salt marsh and other habitat that improves wave attenuation in later overtopping events.

Piping plovers also fare better where there is less human disturbance, so conservation planning to support their recovery might promote creation of engineered islands, which typically lack the necessary geological (and legal) stability to sustain human settlement.

The result was a more comprehensive and holistic approach to species preservation and recovery that also accounted for the Corps’ primary obligations to ensure navigability along the Missouri and Lower Mississippi Rivers. (The Corps also has flood-risk management and water supply responsibilities in the Missouri River system that affect Interior Least Tern recovery.) Instead of short-term monitoring to determine the effect of a single project on local bird populations, the broader consultation prompted a range-wide monitoring effort for the Interior Least Tern. The cost of such a large study was more justifiable when connected to a program-wide consultation, and results there were instrumental in FWS’ determination that the bird’s population had recovered to the point where it could be removed from the endangered species list. Expanding the scope of ESA consultation also shifted the agencies’ attention from the upper limits of the Interior Least Tern’s range (along the Missouri River), where conservation efforts were faltering, to other areas where new approaches such as the dike notching described above could be employed more efficiently and to greater effect.

A similarly holistic approach to ESA consultation could benefit the Corps’ larger flood-risk management program and pave the way for increased implementation of NNBFs in specific flood-risk management projects. The Corps has taken important strides in recent years to develop comprehensive plans for flood-risk management. The Corps in 2015 published a North Atlantic Comprehensive Coastal Study and soon will publish a final South Atlantic Coastal Study. The forthcoming Water Resources Development Act of 2022 is likely to fund a similar study for the Texas Gulf coast. These studies assess risk from coastal storms and sea level rise, and provide tools designed to promote comprehensive risk management. Both the North Atlantic and South Atlantic studies also include assessments of howsea-level rise and coastal storms might affect protected species and their critical habitats. Moreover, both studies emphasize the value of NNBFs such as reefs, living shorelines, barrier islands, and beach and dune systems from the standpoint of risk reduction and infrastructure system resilience. Thus some of the basic elements are in place to initiate the kind of comprehensive ESA consultation that so benefitted the Interior Least Tern and Corps programs along the Missouri and Lower Mississippi Rivers.

Reorienting ESA Consultation to a Recovery-Based Approach Can Deliver Efficiency and Cost Savings

Prompting actions that lead to delisting a threatened or endangered species is the holy grail of ESA consultation for all parties involved – a monumental achievement for conservation biologists, and a major time- and money-saver for action agencies. A rudimentary analysis of the Corps’ spending on Interior Least Tern protection and recovery efforts shows a remarkable decline over the period when the Corps and FWS shifted to a more recovery-oriented framework for consultation. Unfortunately, it is difficult to predict whether specific conservation actions are likely to lead to delisting. If that were possible, the future cost savings might be incorporated into project valuations and might lead to significant changes in how the Corps chooses among design alternatives for a particular project or among various projects competing for limited construction funding. These are decisions that are driven substantially by cost-benefit analyses, so the possibility of monetizing the benefits of avoided conservation measures could be highly influential.

Various other cost-saving effects can arise when action agencies undertake proactive species-conservation planning.

One immediate benefit is the possibility of simplifying future ESA consultations. A key part of conservation planning is identifying management strategies designed to achieve conservation goals, as well as specific activities that support those strategies. When the Corps is later required to consult with FWS or NMFS on a new project, Corps staff will be able to refer to the conservation plan for management strategies and activities that are likely to gain approval from FWS or NMFS staff. The conservation plan for the Lower Mississippi Channel Improvement Project provides a useful example. In addition to its provisions related to the Interior Least Tern, the plan also addresses the needs of the endangered Pallid Sturgeon. Today, nearly a decade after the plan was finalized, Corps staff are still using the data developed under the plan and the strategies and activities it describes as the basis for ESA consultations on nearby projects, including the Bonnet Carre Spillway and Old River.

A second benefit that may be hard to monetize but can still have a significant impact on agency practice is the value of conservation plans in reducing litigation risk. Much of the litigation over ESA compliance is in the form of an NGO suing the Corps and/or the relevant wildlife conservation agency on the theory that the species-conservation measures chosen for a given project are “arbitrary, capricious, or otherwise not in accordance with the law.” Judges hearing these cases must determine whether the agency’s actions were supported by evidence in the administrative record. Sometimes an agency struggles to prove to a judge that their justifications are more than post-hoc rationalizations developed in the course of the litigation. But if the challenged action can be connected to a conservation plan developed before the consultation on the challenged action commenced, the agencies face a lower risk of censure by the judge and, as a result, are less likely to be sued in the first place.

Finally, if the Corps uses the authority granted by the ESA to take more robust approach to utilizing NNBFs and considering biodiversity and species conservation as key project objectives and includes vulnerable species that are as-yet unlisted in the conservation plans, some of these species may never be listed. The conservation plan might prompt monitoring that shows the species is more abundant or its habitat more sustainable than originally thought. Or the plan might include cost-efficient conservation practices that ensure a sustainable population.

The common thread connecting these potential benefits is that they depend on the Corps adopting a more proactive, recovery-oriented approach to ESA consultation.

From Theory to Practice – Promoting NNBF Implementation and Species Recovery Through 7(a)(1) Conservation Planning

Given the lessons learned about the benefits of conservation planning from efforts undertaken along the Lower Mississippi and Missouri Rivers, and the clear legal mandate to do more such planning, the challenge before the Corps is how to make it happen. Moving from theory to praxis will require changes within the Corps and wildlife conservation agencies, additional support from Congress, and support from non-governmental partners. Four interrelated strategies can lead to more conservation planning:

Training and Guidance

Recognizing the success of the Interior Least Tern and other related conservation planning efforts, the Corps established a “Threatened and Endangered Species Team” nearly a decade ago. That team’s remit included identifying new opportunities for 7(a)(1) conservation planning and enhancing the capacity of the Corps to undertake conservation planning through research and training. Sustained, increased investment in these efforts is necessary. Such an investment might allow for the hiring and retention of staff who could conduct regular trainings for Corps staff at the district and division levels, and who could provide facilitation services and supplemental technical resources to initiate and follow through on the development of conservation plans. Additionally, the Corps has published a “Technical Note” on 7(a)(1) planning that describes the development and content of a conservation plan. Other forms of documentation – engineering circulars, regulations, or other step-by-step instructions for plan development – might provide additional value to staff unfamiliar with conservation planning. Expanded guidelines could encourage Corps staff to incorporate provisions into 7(a)(1) plans that promote consideration of NNBF in Civil Works feasibility studies, consistent with congressional mandates and the broader push for Engineering With Nature, described above.

FWS staff from the New England region have created 7(a)(1) planning guidelines for action agencies that plan to undertake conservation planning and program development. These guidelines are an important gap-filling mechanism so long as the wildlife agencies do not have formal regulatory requirements for Section 7(a)(1). But formal guidelines are needed. FWS and NMFS should create national guidelines, doing so in partnership with individual action agencies, to ensure guidelines are relevant to the agencies’ mission, culture, and related legal authorities.

Funding

Two major financial barriers stand in the way of conservation planning. One is that neither the Corps nor the consulting agencies (FWS/NMFS) have budgeting processes in place to promote 7(a)(1) conservation planning. FWS and NMFS determine funding levels and personnel arrangements based on what they expect they will need for project-based 7(a)(2) consultations that are predictable from the action agencies’ workplans. Section 7(a)(1) consultations are so rare that the consulting agencies do not budget for working on them. And at the Corps, where budgets and staffing decisions are geared towards efficient completion of discrete projects, it can be difficult to pull together the personnel and funds to conduct the kind of conservation planning that may not have immediate benefits for any particular project. All of these agencies need dedicated funding to support 7(a)(1) conservation planning at the district level.

The second major financial barrier is rooted in the policies that govern who pays for the long-term costs of operation and maintenance of water resources projects. The Corps typically shares the cost of planning, design, and construction of flood-risk reduction projects with local project sponsors, but once the project is complete, the local sponsor is responsible for 100 percent of the long-term operation and maintenance costs. Thus local partners may resist implementing activities identified in a 7(a)(1) conservation plan, to the extent that the activities are incorporated into operations and maintenance obligations and might drive up their costs. Congress should consider changes to cost-share requirements (even eliminating some) in the context of species conservation, reflecting the national interest in promoting species recovery.

In addition, the Corps should re-examine the project valuation policies that currently undervalue the ecological benefits of NNBFs. These hard to monetize benefits should be weighted more heavily in the calculus that the Corps uses to prioritize projects for White House review.

Research

Bureaucratic Creativity

A well-developed conservation plan is no simple undertaking. For one thing, it requires as a prerequisite a completely different approach to dealing with the needs of vulnerable species – focusing on enhancing their ability to thrive, rather than just avoiding or minimizing the threats to their existence. More practically, it requires agency staff to engage in a process that is not governed by existing guidelines or workflows, and for which funding may not be available. For instance, FWS and NMFS field office staff have substantial workloads already, trying to fulfill the requests for consultation under Section 7(a)(2). And Corps staff at the district level have insights about the threatened and endangered species that drive ESA compliance costs and might benefit from the broader focus of a conservation plan, but they have no formal guidelines or regulations for developing a plan that they can be confident will pass muster with all reviewers. These are systemic issues that must be addressed from the top down, by people with the authority and to instigate a change to the status quo.

Coordinating across agencies to reorient interagency cooperation under ESA Section 7 may be challenging but is not unprecedented – the wildlife agencies in 1994 signed a memorandum of understanding with more than a dozen action agencies (including the Corps) that attempted something similar.

Wildlife agency staff should also consider the opportunistic use of 7(a)(2) consultations – especially programmatic consultations – to push action agencies to develop conservation plans. There is some precedent for this. The Federal Emergency Management Administration (FEMA) requested a formal consultation with FWS over its implementation of the National Flood Insurance Program in the Florida Keys. The consultation resulted in a BiOp with recommendations including one which apparently FWS characterized as a “conservation recommendation” “under Section 7(a)(1)” – that FEMA should allow reduced insurance premiums in communities that develop habitat conservation plans.

Conclusion

This list of recommendations should not obscure a simple fact — the Corps has a great opportunity to initiate conservation program planning that will promote species recovery and broader implementation of NNBFs. While internal barriers exist, they are surmountable.

Better using the Section 7(a)(1) conservation planning authority would allow the Corps to increase efficiency, decrease delays and costs in planning and consultation, and realize a more extensive array of project benefits.

Acknowledgement

This work was supported by the US Army Corps of Engineers Engineering With Nature® Initiative through Cooperative Ecosystem Studies Unit Agreement W912HZ-20-2-0031.

Footnotes

1. U.S. Army Corps of Engineers, “About EWN – Engineering With Nature,” at https://ewn.erdc.dren.mil/?page_id=7.
2. Nelson et al., “Challenges to Realizing the potential of nature-based solutions,” 45 Current Opinion in Environmental Sustainability 49 (2020), available at https://doi.org/10.1016/j.cosust.2020.09.001.
3. J.B. Ruhl, “Section 7(a)(1) of the ‘New’ Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies’ Duty to Conserve Species,” 25 Envtl. L. 1107 (1995); Sara Gersen, “Who Can Enforce the Endangered Species Act’s Command for Federal Agencies to Carry Out Conservation Programs?” 36 Ecology L.Q. 407 (2009).
4. See U.S. Fish and Wildlife Service Environmental Conservation System Online – Delisted Species, available at https://ecos.fws.gov/ecp/report/species-delisted, and U.S. Fish and Wildlife Service Environmental Conservation System Online – Listed Species Summary (Boxscore),” available at https://ecos.fws.gov/ecp/report/boxscore (identifying 3,606 listed species and distinct population segments, and 98 delisted species).
5. U.S. Fish and Wildlife Service, “Interior Least Tern (Sternula antillarum) 5-Year Review: Summary and Evaluation,” Oct. 24, 2013.
6. Casey A. Lott et al., “Interior Least Tern (Sternula antillarum) breeding distribution and ecology: implications for population-level studies and the evaluation of alternative management strategies on large, regulated rivers,” 3 Ecology and Evolution 3613, 3623 (2013), available at https://doi.org/10.1002/ece3.726.
7. U.S. Army Corps of Engineers, Missouri River Mainstem Reservoir System Master Water Control Manual (2018), available at https://usace.contentdm.oclc.org/digital/collection/p266001coll1/id/8200
8. U.S. Army Corps of Engineers, Conservation Plan for the Interior Least Tern, Pallid Sturgeon, and Fat Pocketbook Mussel in the Lower Mississippi River, MRG&P Report No. 4 (Nov. 2014), available at https://test.el.erdc.dren.mil/pdfs/conservation/LowerMS-RiverDistrict/LowerMS-RiverConservationPlan.pdf. Hereinafter“2014 USACE LMR conservation plan.”
9. See U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants; interior Population of the Least Tern Determined To Be Endangered,” 50 Fed. Reg. 21784 (May 28, 1985).
10. 15 U.S.C. § 1533(f).
11. 86 Fed. Reg. at 2567.
12. 86 Fed. Reg. at 2568-69.
13. 16 U.S.C. § 1536(a)(2).
14. 50 C.F.R. §§ 402.02, .13.
15. 50 C.F.R. § 402.12(f).
16. 16 U.S.C. § 1536(b)(3); 50 C.F.R. § 402.14.
17. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14.
18. 16 U.S.C. § 1536(a)(1).
19. But see Glenn S. Smith, U.S. Fish and Wildlife Service, Northeast Region, “Better Conservation More Efficiently: A Guide for Federal Agency Compliance with Section 7(a)(1) of the Endangered Species Act” (2018), available at https://www.fws.gov/northeast/ecologicalservices/pdf/endangered/R5-7a10-Guidance-030918.pdf (hereinafter “Smith Section 7(a)(1) guide (2018)”) and Paul Hartfield, Jennifer G. Brown, and Richard A. Fischer, U.S. Army Corps of Engineers, Engineering Research and Development Center, “The Role of Interagency Cooperation in the Conservation of Threatened and Endangered Species,” ERDC TN-DOER-E40 (2017), available at https://apps.dtic.mil/sti/pdfs/AD1026058.pdf (hereinafter “Hartfield et al. 7(a)(1) paper (2017)”). Both documents are informal guidance. Though they are informative and useful, they were not developed according to public notice-and-comment under the Administrative Procedure Act and therefore create no enforceable mandates.
20. 16 U.S.C. § 1532(3).
21. 16 U.S.C. § 1532(3).
22. Pub. L. 114–322, title I, § 1184, Dec. 16, 2016; Pub. L. 115–270, title I, § 1149(c), Oct. 23, 2018; Pub. L. 116–260, div. AA, title I, § 116(b), Dec. 27, 2020. See 33 USC 2289a and 33 USC 2282 note.
23. Council on Environmental Quality, “Economic and Environmental Principles and Requirements for Water and Related Land Resources Implementation Studies; Final,” 78 Fed. Reg. 18562 (March 27, 2013).U.S. Army Corps of Engineers, “Engineering With Nature Strategic Plan 2018-2023: Expanding Implementation” (2018), available at https://ewn.erdc.dren.mil/wp-content/uploads/2021/03/EWN-StrategicPlan2018-2023FINAL.pdf.
24. Nicole T. Carter & Eva Lipiec, Congressional Research Service Report R46328, “Flood Risk Reduction from Natural and Nature-Based Features: Army Corps of Engineers Authorities” (Apr. 27, 2020), available at https://crsreports.congress.gov/product/pdf/R/R46328/2.
25. Memorandum from Todd T. Semonite, Lieutenant General, USA Commanding, “Reissuance of the USACE Environmental Operating Principles (EOP),” (Oct. 14, 2016), available at https://planning.erdc.dren.mil/toolbox/library/Guidance/Reissuance %20of%20the%20Corps%20Environmental%20Operating%20 Principles%20(EOPSs)%202016.pdf.
26. U.S. Army Corps of Engineers, “Engineering With Nature Strategic Plan 2018-2023: Expanding Implementation” (2018), available at https://ewn.erdc.dren.mil/wp-content/uploads/2021/03/EWN-StrategicPlan2018-2023FINAL.pdf.
27. 42 U.S.C. § 4332; 40 C.F.R. Part 1502.
28. 2014 USACE LMR conservation plan, supra n.9.
29. Zeigler et al., “Piping plovers demonstrate regional differences in nesting habitat selection patterns along the U.S. Atlantic coast,” 12 Ecosphere e03418 (March 2021), available at https://esajournals.onlinelibrary.wiley.com/doi/10.1002/ecs2.3418.
30. Gailani et al., “Chapter 11: Islands” in U.S. Army Engineer Research and Development Center, “International Guidelines on Natural and Nature-Based Features for Flood Risk Management,” Bridges et al., eds., (2021), available at https://issuu.com/poweroferdc/docs/nnbf-guidelines-2021/530.
31. Kwon et al., “Contrasting long-term population trends of beach-nesting shorebirds under shared environmental pressures,” 260 Biological Conservation 109178 (2021), available at https://doi.org/10.1016/j.biocon.2021.109178.
32. Amy H. Moorman, “Let’s Roll: Applying Land-Based Notions of Property to the Migrating Barrier Islands,” 31 Wm. & Mary Environmental L. and Policy Rev. 459 (2007).
33. See U.S. Army Corps of Engineers, “North Atlantic Comprehensive Study: Resilient Adaptation to Increasing Risk Main Report” (Jan. 2015), available at https://www.nad.usace.army.mil/Portals/40/docs/NACCS/ NACCS_main_report.pdf, and U.S. Army Corps of Engineers, “South Atlantic Coastal Study (SACS) Main Report” (Final Draft Report) (Oct. 2021), available at https://www.sad.usace.army.mil/Portals/60/siteimages/SACS/ FinalDraft_SACS_MainReport_print.pdf.
34. Smith Section 7(a)(1) guide (2018), supra n.20.
35. Nicole T. Carter and Anna E. Normand, Congressional Research Service, Report R45185 “Army Corp of Engineers: Water Resource Authorization and Project Delivery Processes,” at 13 (Apr. 19, 2019), available at https://crsreports.congress.gov/product/pdf/R/R45185/10.
36. Memorandum of Understanding between cabinet-level agencies on Implementation of the Endangered Species Act, September 1994, available at https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd496415.pdf.
37. See Florida Key Deer v. Paulison, 522 F.3d 1133, 1140 (11th Cir. 2008).