Endangered Species Act Application in New York State – What’s New? October 4, 2015 U.S. Fish and Wildlife Service Robyn A. Niver

Goals of Today’s Session Provide an introduction to the Endangered Species Act (ESA) Provide information on recent actions involving NY species Answer your questions

We are a Federal Agency

Our mission is to work with others to conserve, protect and enhance fish and wildlife and their habitats for the continuing benefit of the American people. Service Mission

What do we do? Fisheries National Wildlife Refuges Migratory Birds Environmental Contaminants Partners for Fish and Wildlife Endangered Species

Purpose of the ESA.…to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered and threatened species…

Who needs to comply with the ESA?

Most Frequently Encountered Sections of the ESA at a Field Office Section 2 purpose Section 3 definitions Section 4 listing recovery planning recovery implementation Section 6 cooperative agreements w/States Section 7 interagency cooperation Section 9 prohibited acts Section 10 recovery permits enhancement of survival permits incidental take permits Section 11 penalties & enforcement citizen suits

Section 9 - Prohibitions With respect to federally listed species, it is unlawful for any person subject to the jurisdiction of the U.S. to: Import into or export from U.S. possess, sell, deliver, carry transport, or ship in interstate or foreign commerce take (fish and wildlife only)

Take - ESA Section 3 defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in such conduct”

Terminology Harm - 50 CFR significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering Harass - 50 CFR 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 Incidental take Take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity

Take Authorization Section 6 - cooperative agreements and associated take authority for States Section 7 - interagency cooperation- through USFWS biological opinion Section 10(a)(1)(A) - enhancement of survival permits (recovery, safe harbor) Section 10(a)(1)(B) - incidental take permits

Plant Restrictions (in addition to S7) On areas under Federal jurisdiction: remove and reduce to possession maliciously damage or destroy Elsewhere: remove, damage, or destroy in knowing violation of State law

New York Species

Recent Actions Recent batched positive 90-day findings for multiple species including: – Wood turtle – Spotted turtle – Blanding’s turtle

New England Cottontail 12-month Petition Finding – September 15, 2015, 80 FR Listing not warranted Multiple voluntary conservation efforts underway to address primary threats

Eastern Massasauga Rattlesnake Proposed Rule – September 30, 2015, 80 FR Proposed as Threatened Critical habitat – not prudent Threats: – Primary threat is loss of habitat Public comments due by November 30, 2015

Northern Long-eared Bat Proposed Rule – October 2, 2013 Proposed as Endangered Critical habitat – not determinable Threats: – White-nose syndrome (WNS) is primary threat – Compounding threats may include: Impacts to hibernacula Disturbance of hibernating bats Mortality from wind projects Forest conversion/loss

Northern Long-eared Bat Rule published - April 2, 2015 – Final rule listing NLEB as threatened species – Interim 4(d) rule – Critical habitat – not determinable Both effective May 4, 2015 Public comment period was open on 4(d) rule until July 1, 2015 Interim 4(d) rule in effect until final 4(d) is published

What is a 4(d) Rule? Tailors “take” prohibitions under ESA Option for threatened species only Service can issue regulations deemed “necessary and advisable to provide for the conservation of threatened species.” Does not remove the need for federal agencies to consult on activities that “may affect” NLEB 21

What is in Interim NLEB 4(d) Rule? Different treatment in WNS vs. non-WNS areas 22

What is in Interim NLEB 4(d) Rule? Non-WNS areas – no purposeful take allowed (without normal permitting/S7 processes) except: removal from human structures (in compliance with any State regulations) take associated with research/monitoring if you already have USFWS or state permit for another listed bat (1 year) – No “incidental take” prohibitions at all 23

What is in Interim NLEB 4(d) Rule? WNS areas (most of the range) – no purposeful take (without normal permitting/S7 processes) except: removal from human structures (in compliance with any State regulations) take associated with research/monitoring if you already have USFWS or state permit for another listed bat (1 year) – All “incidental take” prohibitions apply except those specifically addressed in the rule 24

What is in Interim NLEB 4(d) Rule? WNS areas (most of the range) – Incidental take associated with these activities as long as conservation measures are followed: Forest management Prairie management Minimal tree removal (≤1 acre) ROW maintenance and expansion within 100 feet of existing ROW – Incidental take associated with: Hazardous tree removal (no conservation measures required) 25

What is in Interim NLEB 4(d) Rule? WNS areas (most of the range) – Conservation Measures: (i) Occur more than 0.25 mile (0.4 km) from a known, occupied hibernaculum (any time of year); (ii) Avoid cutting or destroying known, occupied maternity roost trees during the pup season (June 1– July 31); and (iii) Avoid clearcuts (or similar treatments) within 0.25 (0.4 km) mile of known, occupied maternity roost trees during the pup season (June 1 – July 31) 26

Some Additional Thoughts Does not “exempt” activities – exempts/excepts “take” associated with certain activities Does not say that “take” is always likely with the listed activities 4(d) conservation measures ≠ no “take” or not likely to adversely affect 4(d) conservation measures minimize “take” 27

Some Additional Thoughts “Take” not addressed in 4(d) would need to be authorized through S7/S10 processes Does not remove the need for federal agencies to consult on activities that “may affect” NLEB Can proactively do more than what is in 4(d) – Consider conservation measures that result in no adverse effects or “no take” 28

How do you know if you might have NLEB at a site? Follow New York Field Office Project Review Process 29

What happens next? Work with the Service to determine if there could be effects on NLEB (and any other listed species) Develop measures to avoid impacts Develop measures to minimize impacts Determine if any incidental take authorization is appropriate (Section 7 or Section 10) 30

What’s Next for the NLEB and the Service? Two notices-of-intent to sue received to date Final 4(d) rule anticipated end of 2015/beginning of 2016 Additional training opportunities after that time Coordinate with our office

Summary The Service is separate from the NYSDEC The ESA applies to everyone There are many federally-listed species in NY and several additional species under consideration The NLEB is a threatened species and will have a final 4(d) rule soon There are nuances to ESA, regulations, etc. and don’t be afraid to ask questions

Thank you! You can reach me at: 33