Challenges in and Solutions for Integrating Biological Assessments Into Environmental Impact Statements

In light of the National Environmental Policy Act’s (NEPA) and the Endangered Species Act’s (ESA) allowance for Federal agencies to concurrently fulfill their obligations under each statute, this paper considers potential challenges faced by Federal agencies when integrating biological assessments prepared pursuant to the ESA into environmental impact statements (EISs) prepared pursuant to NEPA. Such challenges can result from differences in how the two statutes and their implementing regulations direct Federal agencies to define a proposed action’s environmental scope; evaluate impacts (including how and whether the agency addresses alternatives and cumulative impacts); consider mitigation measures; and frame impact conclusions. In describing these challenges, this paper considers the statutes themselves, each statute’s implementing regulations, Council on Environmental Quality (CEQ) guidance, U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) guidance and resources, relevant examples from Federal agencies, and pertinent court opinions. Solutions that enable Federal agencies to concurrently fulfill requirements of both NEPA and the ESA in a single, integrated document are proposed in the paper’s conclusion.