Presenting a live 90-minute webinar with interactive Q&A Endangered Species Act Compliance in Project Development and Land Use Mitigating Risks to Minimize Delays, Costs for Relocation, Additional Surveys, and Post-Construction Monitoring THURSDAY, OCTOBER 6, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Barbara D. Craig, Partner, Stoel Rives , Portland, Ore. Shawn J. Zovod, Counsel, Ebbin Moser + Skaggs , San Francisco The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-755-4350 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.
Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926 ext. 35.
Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to “Conference Materials” in the middle of the left - • hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program. • Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon. •
Overview of the Federal ESA (16 U.S.C. § 1531-1544) Congressional Intent: Halt and Reverse Trend Towards Species Extinction ESA History Administered by U.S. Fish and Wildlife Service and National Marine Fisheries Service EBBIN MOSER + 5 SKAGGS LLP
Endangered Species Are Everywhere! • 1599 federally listed species nationwide • Examples: San Joaquin kit fox California red-legged frog California tiger salamander vernal pool crustaceans Plant species 6
Listed Species By State 7
Key Components • Section 4 – Listing Process – Recovery Plans – Critical Habitat Designations • Section 6 — Cooperative Agreements w/ States • Section 9 — The “Take” Prohibition • Section 7 — The Consultation Process • Section 10 – Safe Harbor and Candidate Conservation Agreements, Habitat Conservation Plans • Section 11 — Penalties and Enforcement 8
Definitions • A species is “endangered” when it is in danger of becoming extinct throughout all or a significant portion of its range • A species is “threatened” when it is likely to become “endangered” within the foreseeable future throughout all of a significant portion of its range • Critical habitat designations for listed species includes areas, occupied or not, that are deemed essential to species survival and recovery • Candidate Species is a species working through the listing process, and have no legal protections 9
“Take” prohibition (Section 9) • What is “take”? – Harass , harm , pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. • It is illegal to “take” listed wildlife, but listed plants get less protection. • Habitat destruction can constitute take. – By regulation, the USFWS defined “ harm ” as an act that actually kills or injures wildlife; such act may include significant habitat modification or degradation where it directly leads to death or injury of listed wildlife. • Occupied habitat vs. potential habitat • Penalties for illegal take • Enforcement 10
Incidental Take Authorization (Sections 7 and 10) • Permits are available for “take incidental to otherwise lawful activity” • Two options for securing take authorization: – Section 7: “consultation” with USFWS, where a federal nexus exists – Section 10: Habitat Conservation Plans (HCPs), where no federal nexus exists 11
Section 7 vs. 10 • Availability: federal nexus or not? • Timing: Section 7’s are faster • Public participation: none in Section 7 • Long-term benefits of Section 10 – Duration of incidental take authorization – Coverage for unlisted species – No Surprises assurances 12
Consultation (Section 7) • Only applies to federal projects, or non-federal projects with a “federal nexus” (e.g., federal funding, CWA Section 404 permit, FERC licensing, etc.). – Section 7 implements federal agency obligation not to jeopardize the continued existence of any listed species, or cause the “destruction or adverse modification” of designated critical habitat 13
Consultation (Section 7) • Consultation trigger: if project “may affect” listed species (plants or animals) or designated Critical Habitat, then consultation is required • What is “consultation”? Informal vs. Formal • Who does it, and how long does it take? • What’s the end result? Jeopardy, no -Jeopardy and Biological Opinions • Incidental take statement 14
Incidental Take Permits/Habitat Conservation Plans (Section 10) • Permit Criteria • The taking is incidental to an otherwise lawful activity. • The HCP will minimize and mitigate the impacts of the incidental taking “to the maximum extent practicable.” • The incidental taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. (No jeopardy standard) • The applicant will ensure adequate funding for the HCP and procedures to deal with unforeseen circumstances. • The applicant will ensure that other measures that the Services deem necessary or appropriate for the purposes of the plan will be met. • The Services have received such other assurances as they may require in order to implement the plan. • HCP Handbook (www.endangered.fws.gov) • Five Point Policy (USFWS 2000) • NEPA requirements 15
No Surprises Assurances • No Surprises rule was promulgated jointly by USFWS and NMFS (68 FR 8859 (Feb. 23, 1998)) • Once an ITP has been issued pursuant to an HCP, and its terms and conditions are being fully implemented, the federal government will not require additional conservation or mitigation measures, including land water (including quantity and timing of delivery), money, or restrictions on the use of those resources • If the status of a species addressed in an HCP unexpectedly declines, the primary obligation for undertaking additional conservation measures rests with the federal government, other government agencies, or other non- federal landowners • Section 10 regulatory assurances have withstood legal challenge Spirit of the Sage Council v. Kempthorne, 511 F.Supp. 31 (D.D.C. 2007) 16
Permit Revocation Rule • NMFS or USFWS may nullify No Surprises assurances and revoke a Section 10 permit • Only if species covered by an HCP substantially declines and the continuation of an activity covered by the HCP would jeopardize the species • NMFS or USFWS must demonstrate a causal link between the continuation of the covered activities and the likelihood of jeopardy 17
Safe Harbor Agreements (SHA) (Section 10) • SHA is a voluntary agreement between non-Federal property owners and the FWS/NMFS. • In exchange for actions that contribute to the recovery of listed species on non-Federal lands, participating property owners receive formal assurances that if they fulfill the conditions of the SHA, the FWS will not require additional or different management activities. • At the end of the agreement period, participants may return the enrolled property to the “ baseline conditions ” that existed at the beginning of the SHA. 18
Candidate Conservation Agreements (CCA) (Section 10) • CCAs are meant to protect unlisted species that are declining and have the potential to become threatened or endangered if their habitat is not protected • Non-Federal landowners commit to implement mutually agreed upon conservation measures which, when combined with the benefits that would be achieved if those conservation measures were implemented on other necessary properties, would preclude the need to list • In return for the landowner ’ s proactive management, the FWS issues an enhancement of survival permit which upon listing authorizes take of individuals or the modification of habitat conditions to the levels specified in the CCA 19
Recommend
More recommend
