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Endangered Species Act

Richard Nixon signed the bill into law 12/28/73, at the time it had strong bi-partisan support,

Species include: birds, insects, fish, reptiles, mammals, crustaceans, flowers, grasses, trees, etc.

R9: CA and HI in particular have many threatened and endangered species. California has more than any other state. Hawaii has largest number of protected plants.

Many endangered species are located along densely populated areas where habitat is threatened by urbanization.

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Endangered Species Act: Fun Trivia

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R9 Endangered Species Examples

CA Condor: CA, AZ NV, NM, UT

CA CondorCA, NV, AZ, UT, NM

Gray Wolf CA, NV,

AZ

Nihoa Finch-HI

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Laws, Regulations and Guidance

HUD guidance

https://www.hudexchange.info/environmental-review/endangered-species/

FWS ESA Document Library, Working with Tribes, Landowners http://www.fws.gov/endangered/esa-library/index.html#consultations_policy

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Goal of ESA Protect threatened and endangered species, restore

species to secure status.

Endangered (E): species in danger of extinction within forseeable future throughout range

Threatened (T): species likely to become endangered in the forseeable future through all or significant part of its range.

Proposed: fish, wildlife, or plant proposed in the Federal Register to be listed as T&E (section 402).

Candidate: species being considered to add to list of T&E species (not part of consultation).

Habitat is Crucial to Species SurvivalCritical Habitat (CH): geographic areas determined to be essential to the species conservation. (USFWS decides)

e.g. Riparian corridors for Steelhead, brackish salt marshes along CA coast for Tidewater Goby.

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Famous Legal Case TVA vs. Hillaka the Snail Darter case

1967- TVA building Tellico Dam on Little Tennessee River.

1973- fish biologist discovered the Snail Darter. Studies showed entire species lived in the part of the river which turn into the reservoir.

To protect the Snail Darter and its habitat the DOI listed it as an ES. Court of appeals ruled that any activity at Tellico which may destroy snail darter habitat be stopped.

Unless 1) Congress exempted project from ESA 2) Snail Darter was no longer an ES.

Listed Species (T&E) and Success Stories

• 1980 had 281 listed species per year,

• 2008 had 1358 listed species per year.

• Majority are plants.

• Success stories: Peregrine falcon delisted in 1999, American alligator in 1987 and bald eagle in 2007.

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Section 9

• Applies to public AND private actions

• Prohibits “take” of endangered fish, plants, wildlife.

• Take- don’t harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, etc.

• Unauthorized take can end in civil as well as criminal penalties, sanctions and fines.

• Civil suit- allows any person to commence a civil suit against an alleged violator.

Section 10 of ESA

Allows for issuance of “take” permits

• Scientific study

• Incidental take

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Section 7

§ 7(a)(1) Federal agencies must use their authorities to further conserve listed species (T&E’s).

§ 7(a)(2): Consultation

Federal agency must ensure that any action, funded by the agency is NOT likely to jeopardize the continued existence of any T&E species or to destroy/ adversely modify critical habitat (CH).

• Consult with U.S. Fish and Wildlife Service (USFWS) or National Oceanic & Atmospheric Administration Fisheries (NOAA-F) depending on the species. Also may need to consult with Indian Tribes.

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Service Agencies

USFWS and NOAA-F administer the ESA.

USFWS http://www.fws.gov/endangered/index.html

NOAA-F http://www.nmfs.noaa.gov/pr/index.htm

Primary role of USFWS is to identify, list species, Critical Habitat and develop as well as implement recovery plans.

• USFWS has a responsibility to ensure that listed species are not jeopardized (“…to err on the side of the species.”).

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Are There Listed Species?

1) Request a T&E list from USFWS/NOAA-F .

2) Action agency determines if T&E or CH are present.

3) Examine project site and decide if T&E or CH are present.

• List- include county species list, species accounts, species recovery plans (HCPs- habitat plans)

• for e.g. in California

• http://ecos.fws.gov/tess_public/pub/stateListingAndOccurrenceIndividual.jsp?state=CA&s8fid=112761032792&s8fid=112762573902

Does the Action Have an Effect?Action agency decides whether the project may alter,

destroy or have an effect on T&E.

• Need a full project description with proposed activities.

• Identify action area (affected area may be larger than project footprint)

If no effect DONE action agency documents in ERR.

If may affect yes species or habitat present

Discuss with experts USFWS, NOAA-F, Natural Heritage staff

If not likely to adversely affect submit finding, get USFWS concurrence.

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No Effect: No Consult Needed

• Rehab or reconstruction without expansion.

• Demolition of structures

• All interior repair/rehab

• Exempt under part 58

No listed species or critical habitat in the affected area/ watershed (remember aquatic species!)

Local programmatic agreement

Document in ERR “No effect” and state why.

Include: date of site visit, site photos, maps, species list and surveys.

50 CFR 402 Consultation

May effect and likely to adversely affect determination?

• If no informal consultation

• If yes may adversely affect formal consultation

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Informal Consultation “if may, but not likely to adverse impact”.

1) Submit finding. Request 30 days concurrence.

Appropriate when trying to determine:

a) If T&E species/CH are present in action area.

b) Potential effects from action (direct/indirect)

c) Explore ways to reduce effects (modify project to benefits species)

d) Establish if need for more formal consultation.

Do informal consult early in project development

a) often avoids need for formal consult

b) easier to modify project

Not Likely to Adversely AffectExpected effects are discountable, small or beneficial.

If USFWS does not agree, they may advise measures to modify action to result in not likely to adversely affect T&E/CH.

If agency agrees and action is modified, USFWS/NOAA-F will provide concurrence & conservation recommendations (written)

ESA compliance achieved.

If agency does NOT agree then formal consultation is needed…

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Formal Consultation

• Needed if action =“likely to jeopardize/adversely affect” survival of T&E/CH or to make exceptions for incidental take.

• Start BEFORE making irreversible/irretrievable resource commitment.

• Have Biological Assessment prepared

• Can use HUD sample letter.

• Resource agencies can request it.

• Reg states it concludes 90 days after it began.

• When it concludes service agency will issue Biological Opinion (BO).

Biological Assessment (BA)May affect triggers need for BA.

Submit within 6 months of getting species list.

Describes the proposed action and location.

Determines on-site presence of T&E/CH (including seasonal occurrences .

Cites relevant studies/reports by recognized experts.

Evaluates direct, indirect and cumulative effects

Analyzes whether action will adversely affect T&E/CH.

Examines reasonable and prudent alternative actions, measures to reduce/resolve effects and conservation recommendations.

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Biological Opinion (BO)Jeopardy: An action expected to directly or indirectly reduce

appreciably the likelihood of species’ survival and recovery by reducing reproduction, numbers, or distribution of that species or destroy or adversely modify CH in an irrevocable manner.

USFWS/NOAA-F puts together BO as response to BA. They will either 1) Find jeopardy2) Find no jeopardy to T&E, adverse or no adverse modification of CH. BO will also include: Mandatory or recommended mitigation measuresIncidental take statement

If no jeopardy or adverse-then consult is complete.

Factors USFWS considers when making its determination

• The overall status of the species.

• How the proposed action would affect the potential for recovery

• The ongoing effects of other actions, management, on the species

• Anticipated non-federal actions that may affect the species.

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Post ConsultationFollow through on mitigating measures

Follow instructions in the Incidental Take Statement

Reinitiate consultation if necessary

Of 6,000 formal consultations (1987-1996),only ½ % were unable to proceed

99% of listed species have survived

The FWS keeps a record and will follow-up. The Take Statement will usually include instructions to follow-up with the FWS by submitting a report of how many species were taken, harassed, etc…

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Proper Documentation

Summary of consult, date, Name of Service personnel/POC.

Project description and location, affected species/critical habitat.

Conditions For Approval:

List all mitigation measures, especially any mandatory project modifications.

Describe the means of compliance and/or mandatory project modifications and the take allowance.

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If Jeopardy is expected…• Action agency can modify proposal with RPA’s

(reasonable & prudent alternatives) to reduce impacts below jeopardy threshold.

RPA’s must be within the action agency’s authorities• Re-initiate consult based on modified action not

previously considered.• Don’t undertake the project.• Proceed if believe satisfy ESA…Without RPAs agency may be liable for take (so DON’T

do this)

If can’t comply, can apply for an exemption…

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• Cabinet level agency administrators can provide exemptions to the ESA

• This is the last resort!

Together we can protect species from extinction

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More Information

• There is NOAA-F/FWS consultation manual ECS3116 Interagency consultation on ESA. http://training.fws.gov/nctcweb/catalog/CourseDetail.aspx?CourseCodeLong=FWS-CSP3116