Endangered Species Act and NRD Practice: An Overview

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Presentation transcript:

Endangered Species Act and NRD Practice: An Overview Tracy Hester Environmental Practicum Feb. 27, 2019

ESA – Key Concept Review Section 4 – Listing Endangered, Threatened, Special 4d Rule Candidate Conservation Agreement Section 7 – consultation Federal action Jeopardy Biological assessment, BiOp, Incidental Take Permit Section 9 – Taking All persons; includes critical habitat destruction Habitat Conservation Plans

Example – Hill Country Wind

Creative options What federal permits are actually necessary? Mitigation steps – create new habitat Can you finesse operating periods? Market mechanisms – ESA banks Insurance and risk spreading Remember – Texas law, and Texas actors

Natural Resource Damage – assessment and recovery Key concepts NOT section 107 CERCLA cost recovery for cleanup costs Trustees (including states and tribes) Not response, but recovery Exceptions still apply – 107b, federally permitted releases Statute of Limitations Lost use of resources vs restoration – how to put a price tag? Settlement frameworks and strategies

Looking ahead on NRD legal developments Climate change? Interplay with ESA and natural resource statutes? Aerial emissions? Public trust doctrine? Criminal liability? Resource for you – Natural Resource Damage Liability Law