# Presentation: 106767

## Endangered Species Act

- A Compliance Overview

## Endangered Species ActFindings

- Some species of fish, wildlife and plants are now extinct “as a consequence of economic growth and development untempered by adequate concern and conservation.”
- Other species in danger of extinction
- Species have aesthetic, ecological, educational, historical, recreational, and scientific value
- U.S. pledges to conserve species facing extinction

## Endangered Species ActPurpose

- ...to provide a means to conserve ecosystems upon which endangered and threatened species depend

## Endangered Species Act

- Section 2:    Findings and Purposes
- Section 3:    Definitions
- Section 4:    Listing, Critical Habitat Designation,                     		 Recovery, Monitoring
- Section 5:    Land Acquisition
- Section 6:    Cooperation with the States
- Section 7:    Interagency Cooperation (Federal)
- Section 8:    International Cooperation
- Section 9:    Prohibited Acts
- Section 10:  Exceptions (Permits, experimental 				populations)
- Section 11:  Penalties and Enforcement
- Sections 12-18: Misc

## Endangered Species ActDefinitions

**Conservation** -  to use all methods necessary to bring [listed] species to the point at which the ESA is no longer necessary
**Endangered ****- **species in danger of extinction throughout all or a significant portion of its range
**Threatened**** - **species likely to become endangered in the foreseeable future

## Endangered Species ActDefinitions

**Take**  - to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct
- Take prohibition (Section 9) for wildlife species applies to any person or Federal agency

## Take Further Defined

- Wildlife - prohibitions protect listed wildlife species from threats of “take” (Section 9)
- Plants - prohibitions protect listed plants species from threats of commercial trade, collection, or malicious destruction on Federal lands, and similar actions that violate State law (Section 9)

## Take Further Defined

**Harm - **“...significant _habitat modification_ _or degradation_ where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
- 	50 CFR 17.3

**Notes:**
To eliminate confusion regarding it’s meaning, the FWS defined the term harm in the definition of take by regulation on _______.    The FWS’ definition of harm has been upheld by the Supreme Court as a reasonable interpretation of the term that supports the broad purpose of the ESA to conserve listed species (see Babbit v. Sweet Home 1 1995) 
NMFS separately defined the term harm in November 1999 to be largely consistent with the FWS’ definition.  The NMFS definition of harm is “...an act that which actually kills or injures wildlife.  Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.”

## Take Further Defined

**Harass** – “...an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly impair normal behavioral patterns including breeding, feeding or sheltering.”  50 CFR 17.3

**Notes:**
The FWS has also defined in regulation the term “harass” in the definition of take.  NMFS has not defined this term in regulation. 

Note that this definition does not limit harassment to “essential” behavior patterns.

## Take Further Defined

**Incidental take** – Take that is incidental to, and not the purpose of, carrying out of an otherwise lawful activity
- 	50 CFR 402.02

**Notes:**
Discuss “otherwise lawful activity” and why the language is there.

## Does the ESA apply to projects on private and other non-federal land?

- YES

## Who is responsible?

How do I get my ESA compliance?

- How do I get my ESA compliance?

## Compliance Responsibilities

- Federal Agency – Section 7
**Federal nexus** - federal agency funds, authorizes or carries out the program or project
- Federal agency determines effects
- Federal agency consults with FWS
- Trigger - “may affect”
- FWS writes concurrence letter or Biological Opinion
- Non-Federal entity follows conservation measures provided by Federal agency

## Compliance Responsibilities

- Non-Federal entity – Section 10
- No Federal nexus
- Trigger - project is likely to result in “take”
- Non-federal entity responsible for determining effects
- FWS can help (technical assistance)
- Habitat Conservation Plan and incidental take permit
- Non-federal entity prepares HCP, follows conservation measures from HCP and permit

## What is the effect of your project on listed species and their habitat?

## Effects Analysis

- What is your project/action?
- Be specific to _**all**_ pieces and timing
- Also look at actions related to the project
- Ex:  building of roads to thin a timber stand
- Listed species in the area?
- What time of the year
- Suitable habitat in the area?  Use?
- Feeding, breeding, sheltering, migration, etc.

## Effect Analysis, cont.

- Critical Habitat in the area?
- Officially proposed or designated by FWS
- Are the biological or physical features affected?
- Proximity of species or habitat to project
- Timing of project and species presence

## Effect Analysis, cont.

- Is the species, its habitat, or Critical Habitat “exposed” to the effects of the project?
- Noise, light, smoke, dust, vegetation manipulation or removal, etc
- Direct effects
- Occur during implementation of project
- Indirect effects
- Caused or result from the project, but occur later in time

## Effect Determinations

- No effect
- May affect, but no adverse effects
- Adverse effects
- Adverse effects that likely result in “take”

## Effect Determinations, cont.

- No Effect
- May affect, no adverse effects
- Effects are discountable, insignificant or completely beneficial
- Adverse effects
- Negative effects that can be measured, detected or evaluated

## Effect Determinations, cont.

- Adverse effects, “take” is likely to occur
- Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct
- Includes habitat modification
- Are normal behavior patterns disrupted or significantly impaired?
- Applies even if only one individual

- What can you do to facilitate ESA compliance?

## Facilitating Compliance

- Avoid adverse impacts to listed species, their habitat and Critical Habitat
- Time of year
- Time of day
- Physical location

## Facilitating Compliance, cont.

- Minimize adverse impacts to listed species, their habitat and critical habitat
- “Take” may still be likely, but reduced
- Time of year
- Time of day
- Physical location

## Facilitating Compliance, cont.

- Compensate for adverse impacts to listed species and their habitat
- “Take” is likely, but impact is off-set
- Habitat restoration, protection, etc
- May be short term adverse impacts, but long term benefits, etc

## Tips

- Detail matters!!
- Determine if have federal nexus early
- Work with FWS & other federal agencies
- To aid in determining affected species, minimization measures, etc.
- Build species measures into project design
- Plan time to determine effects and get compliance
- Don’t wait ‘til the last minute for ESA compliance

## Helpful Websites

- www.fws.gov/endangered
- _[www.fws.gov/cno](http://www.fws.gov/cno)_
- www.fws.gov/.....
- Klamath Falls
- Yreka
- Arcata
- Sacramento
- Ventura
- Carlsbad