2 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 extinctionSpecies have aesthetic, ecological, educational, historical, recreational, and scientific valueU.S. pledges to conserve species facing extinction
3 Endangered Species Act Purpose …to provide a means to conserve ecosystems upon which endangered and threatened species depend
4 Endangered Species Act Section 2: Findings and PurposesSection 3: DefinitionsSection 4: Listing, Critical Habitat Designation, Recovery, MonitoringSection 5: Land AcquisitionSection 6: Cooperation with the StatesSection 7: Interagency Cooperation (Federal)Section 8: International CooperationSection 9: Prohibited ActsSection 10: Exceptions (Permits, experimental populations)Section 11: Penalties and EnforcementSections 12-18: Misc
5 Endangered Species Act Definitions Conservation - to use all methods necessary to bring [listed] species to the point at which the ESA is no longer necessaryEndangered - species in danger of extinction throughout all or a significant portion of its rangeThreatened - species likely to become endangered in the foreseeable future
6 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 conductTake prohibition (Section 9) for wildlife species applies to any person or Federal agency
7 Take Further DefinedWildlife - 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)
8 Take Further DefinedHarm - “…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 17.3To 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 )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.”
9 Take Further DefinedHarass – “…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 17.3The 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.
10 Take Further DefinedIncidental take – Take that is incidental to, and not the purpose of, carrying out of an otherwise lawful activity50 CFRDiscuss “otherwise lawful activity” and why the language is there.
11 Does the ESA apply to projects on private and other non-federal land? YES
12 How do I get my ESA compliance? Who is responsible?How do I get my ESA compliance?
13 Compliance Responsibilities Federal Agency – Section 7Federal nexus - federal agency funds, authorizes or carries out the program or projectFederal agency determines effectsFederal agency consults with FWSTrigger - “may affect”FWS writes concurrence letter or Biological OpinionNon-Federal entity follows conservation measures provided by Federal agency
14 Compliance Responsibilities Non-Federal entity – Section 10No Federal nexusTrigger - project is likely to result in “take”Non-federal entity responsible for determining effectsFWS can help (technical assistance)Habitat Conservation Plan and incidental take permitNon-federal entity prepares HCP, follows conservation measures from HCP and permit
15 What is the effect of your project on listed species and their habitat?
16 Effects Analysis What is your project/action? Be specific to all pieces and timingAlso look at actions related to the projectEx: building of roads to thin a timber standListed species in the area?What time of the yearSuitable habitat in the area? Use?Feeding, breeding, sheltering, migration, etc.
17 Effect Analysis, cont. Critical Habitat in the area? Officially proposed or designated by FWSAre the biological or physical features affected?Proximity of species or habitat to projectTiming of project and species presence
18 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, etcDirect effectsOccur during implementation of projectIndirect effectsCaused or result from the project, but occur later in time
19 Effect Determinations No effectMay affect, but no adverse effectsAdverse effectsAdverse effects that likely result in “take”
20 Effect Determinations, cont. No EffectMay affect, no adverse effectsEffects are discountable, insignificant or completely beneficialAdverse effectsNegative effects that can be measured, detected or evaluated
21 Effect Determinations, cont. Adverse effects, “take” is likely to occurHarass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conductIncludes habitat modificationAre normal behavior patterns disrupted or significantly impaired?Applies even if only one individual
23 Facilitating Compliance Avoid adverse impacts to listed species, their habitat and Critical HabitatTime of yearTime of dayPhysical location
24 Facilitating Compliance, cont. Minimize adverse impacts to listed species, their habitat and critical habitat“Take” may still be likely, but reducedTime of yearTime of dayPhysical location
25 Facilitating Compliance, cont. Compensate for adverse impacts to listed species and their habitat“Take” is likely, but impact is off-setHabitat restoration, protection, etcMay be short term adverse impacts, but long term benefits, etc
26 Tips Detail matters!! Determine if have federal nexus early Work with FWS & other federal agenciesTo aid in determining affected species, minimization measures, etc.Build species measures into project designPlan time to determine effects and get complianceDon’t wait ‘til the last minute for ESA compliance