Endangered Species Act - PowerPoint Presentation

Slide1

Endangered Species Act

(ESA)

Administered by:

U.S. Fish and Wildlife Service (

FWS

)Slide2

Protected Resources

Listed endangered and threatened

flora and fauna

Designated critical habitat

Candidate

species

Receive no statutory protection, but are conserved through other programs and voluntary agency actions Slide3

Definitions

Endangered Species

Any species in

danger of extinction

throughout all or a significant portion of its range

Threatened Species

Any species

likely

to become

endangered within the foreseeable future

throughout all or a significant portion of its rangeSlide4

Definitions

Candidate Species

Being considered for

listing

Critical Habitat

Specific areas occupied by the species, when it is listed

Contain the physical or biological features essential to the conservation of the species

Require special management considerations or protection

For listed fish, essential fish habitat

Adverse Modification (of critical habitat)

Direct

or

indirect alteration

that diminishes the value of critical habitat for both the survival and recovery of a listed speciesSlide5

Definitions

Jeopardy

To engage in an action that would be expected,

directly or indirectly, to reduce the likelihood of both the survival and recovery

of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species

Take

“

To

harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect

or to attempt to engage in any such conduct”Slide6

Determinations

“No Effect”

No effect whatsoever

No further consultation

required

“(May Affect), Not Likely to Adversely Affect”

Insignificant, discountable or beneficial effects

Requires concurrence

from FWS

“(May Affect), Likely to Adversely Affect”

Risk of a “take”

Requires formal consultation

with FWSSlide7

Section 7 Consultation Process

Applicant / RD obtains

a species list

from Services

INFORMAL

CONSULTATION

ENDS

Species or Critical

Habitat Present:

Applicant evaluates

potential effects in ER/EA

No Species

Or Critical

Habitat – No Effect

Formal Consultation

May Affect, Not Likely to Adversely

Affect

FWS

concur?

YES

May Affect, Likely to Adversely Affect

NOSlide8

Formal Consultation

RD initiates

Formal

Consultation

Information on species

and habitat

assembled

FWS

drafts

Biological

Opinion

RD reviews

Biological

Opinion

90

DAYS

45 DAYS

FWS

Issues Final

Biological

OpinionSlide9

Other Important Considerations in ESA S. 7 Consultations

The next several slides will address key elements and approaches that the Agency needs to keep in mind.Slide10

Consultation is agency to agency

Applicants and consultants can assist, e.g., making initial contact with Services, overseeing or conducting surveys, writing reports, but ultimately these actions must be approved by RD;

RD is responsible for making determinations of effect and providing them to Services;

There are other actions during the consultation process where the Agency should be directly involved; these can include determining the need for surveys or other information (costs involved), negotiating measures or actions to minimize effects and gain Service concurrence, explaining or representing RD programs and procedures and the limits of Agency authority. Slide11

Agency requirement to make effects determinations and provide to Services

Based upon review of the information, any study results, and possible recommendations from biological consultants, RD makes determinations and transmits them to Services;

A designated non-federal representative may provide determinations, but this is uncommon;

Part of the agency-to-agency responsibility, but also assures Services that determinations reflect the action agency’s views and approval. Slide12

Aspects of ‘negotiating’ with Services

Resolving disagreements or conflicts over potential effects or avoid/minimize measures;

Inherent tension between Services’ desire (and mission) to protect listed species, and applicant need; RD is somewhat in the middle;

Could involve analysis or selection of project alternatives;

If certain measures are justified/reasonable, applicant will bear cost, but remember this added cost could affect ability to re-pay loan.

Slide13

Appropriate role of the applicant/consultant

Always bear in mind the agency-to-agency requirement; applicant or consultant should not be allowed to, or be viewed as, having taken over the process;

They are assisting RD in meeting its statutory requirements, however …

“The ultimate responsibility for compliance with section 7 remains with the Federal agency” (50 CFR 402.09);

Relying on the applicant’s consultant for biological or engineering (as it may affect project design to avoid /minimize impacts) expertise; work closely with them, but maintain a ‘leadership’ role. Slide14

When are formal species surveys necessary, who decides, and on what basis?

First, assure that all existing and available information has been consulted; in most situations, surveys are not necessary;

The validity or applicability of existing survey data may be questioned;

Services staff are the experts, and can recommend surveys and/or monitoring; action agencies have no legal obligation to conduct or pay for these studies, but additional data may be key to resolution, and S. 7(a)(1) may be cited;

So, the “who decides” is really a joint decision. Slide15

How does the gravity of a potential effect influence the consultation?

The more imperiled the species, the more concerned/stringent the Services will be (generally);

Can vary even within a general project area, e.g., endangered mussel doing relatively well in one reach of a watershed, but nearly gone in another reach;

Services may push for a more in-depth analysis of alternatives, or additional measures to avoid adverse effects;

Carefully consider any requests that may seem excessive or unreasonable. Slide16

New or emerging trends in how Services are approaching consultations

Heightened attention to S. 7(a)(1), which direct agencies to “…utilize their authorities to further the purposes of the Act by carrying out conservation programs for listed species.”;

Continued reductions in Services staff and resources indirectly places increased burden on agencies and applicants to collect data;

Use of existing tools (e.g., Section 10 Habitat Conservation Planning) and openness to innovative agreements to give more ‘regulatory certainty’ to project proponents Slide17

“

How To”

Visit Service ES or area office website, or use ECOS on-line tool (

http://ecos.fws.gov/ecos/indexPublic.do

);

http://ecos.fws.gov/ipac/

Before initiating

project Applicant/RD

requests

T/E, candidate species and critical habitats listing identifying those species that may be present in project area. If FWS indicate none, consultation complete

If species present,

RD must determine

whether project has no effect, is not likely to adversely affect, or is likely to adversely affect (Biological Assessment, if necessary)

If “no effect” or “not likely to adversely affect”, and FWS

concur, consultation complete

If adversely affected, RD must undergo formal consultation with FWSSlide18

Reminder of online tools and other resources to assist consultations

Growing availability, including those of specific ES offices or USFWS Regions;

Some provide basic decision support and mapping, others have ‘step-by-step’ instructions (Regions 3 and 4), one a consultation slideshow (Region 7);

Information, Planning and Conservation System (IPAC);

http://ecos.fws.gov/ipac/

; portions still ‘under construction’;

Region 3 7(a)(2) Technical Assistance Website:

http://www.fws.gov/midwest/endangered/section7/s7process/index.html

;

Not an exhaustive listing; check to see what might be available;

The more detailed information that can be provided up front, the better. Slide19

Wind and USFWS

Section 7 issues growing

Impacts to bats a great concern

Lack of reliable information on bat populations, migratory/nesting

habits, as well as interactions with turbines

Treatment of small wind project similar to utility-scale wind makes compliance for small projects very costly, potentially prohibitiveSlide20

FWS Actions on ESA and Wind:

Curtailment of operations during high-risk periods

It is thought that

bat fatalities

might be lowered

substantially by reducing the amount of

turbine operating

hours during low

wind.

This can be done by increasing the minimum

wind speed, the

“cut‐in” speed, at which the

turbine’s blades

begin rotating to produce electricity.In Ohio, FWS is negotiating to set cut-in speeds at 6.5 m/s from sunset to sunrise for migratory periods, such as April to September (depending upon species) with at least 1-2 years of post construction monitoring for projects in the 100 to 600 kW range.Slide21

Wind: Recommendations

Standardize information submittals

:

Considerations for siting

, baseline information to applicants as early as possible;

Use FWS Final Guidelines

and show how they are explicitly addressed in all submittals to USFWS;

Recommend professional services for

applicants: biologists that know bird and bat issues to determine site habitat and potential ESA speciesSlide22

Example Handout Issues

Contact USFWS to discuss potential concerns under the ESA/MBTA at your site;

Hire a qualified wildlife biologist to conduct a pre-application study based upon any USFWS recommendations.

Sites with the following concerns are unlikely to be approved or might require additional resources and time for resolution:Slide23

Example Handout Issues (cont.)

Known bird or bat flyways/migration ways;

Critical habitat of wildlife or plant species protected under the ESA;

Birds or bats hibernation, breeding, maternity colonies or high feeding areas;

Fragmentation of large, continuous tracts of wildlife habitat;

More than minimal roads, fences, or other infrastructure

In States with Indiana Bat populations, distance of < 1000’ from mature hardwood areasSlide24

Resources

A fact sheet on Wind Turbine interactions with bird and bats is online at:

http://www.nationalwind.org/publications/wildlifewind.aspx

USFWS Wind Turbine Guidelines:

http://www.fws.gov/windenergy/docs/WEG_final.pdf

The State of Ohio has a generalized map for siting wind turbines in terms of risks to wildlife at:

http://

www.dnr.state.oh.us/Home/wild_resourcessubhomepage/ResearchandSurveys/WildlifeWind/tabid/21467/Default.aspx

Providing local USFWS offices with the GPS coordinates for a project enables them to determine distance to important resources, such as hibernacula for Indiana bats

Slide25

Questions?

Email or call with any comments or questions on this webinar to

Juliet.Bochicchio@wdc.usda.gov or 202-205-8242