Environmental Considerations in Planning Here are some things that we need to do and/or explore to help keep things on schedule. One of the most important things we can do to maintain schedule is t make sure we do an adequate BA or a minimum of 30 days could be lost. If more information is needed, supply it quickly or state why it can not be supplied. There are some things we have done around the Corps to help USFWS/MFS when they have a manpower problem. Many times we have open end contracts where we can award contracts quickly to supply support to the services. We have supplied Corps personnel t work under the auspices of the services to do the initial draft of a BO. There have been situations where priorities from the regional office has caused conflicts and delays. We can intercede on behalf of the local offices with either their regional or HQ offices to explore reprioritization. We must work together closely and help each other to accomplish a mutual goal. Florida panther Ch 4 Mod 2 HO # 11 Endangered Species Act

Objective of Class Session Quick Review of ESA-- Emphasis on Section 7 Interagency Consultation Requirements. Note there is a NMFS/USFWS Consultation Manual. www.fws.gov ECS3116 Interagency Consultation for Endangered Species http://training.fws.gov www.nmfs.noaa.gov California condor

PRIMARY OBJECTIVES OF THE LAW Protecting threatened and endangered species. Restoring listed species to a secure status. What year passed into law?

Pertinent Sections of the ESA Section 4- Listing of Species, Designation of Critical Habitat, and Recovery Planning Section 6- Agreements and Funding for States Section 7- Interagency Coordination and Consultation Section 9 – Prohibits take of listed species Section 10- Scientific and Incidental Take Permitting and Habitat Conservation Plans

Examples of Federally Listed Species

Chinook salmon

Flatwoods salamander

Attwater’s greater prairie-chicken

Polar bear

Pallid Sturgeon Harberg insert- consider replacing other picture- focuses on fish not human

Michigan monkey-flower

Northern sea otter Harberg insert

Eastern indigo snake

Swamp pink

Gray bat

Steller’s eider

Cumberland rosemary

Bull trout

Wood stork

Giant kangaroo rat

Southern clubshell

Karner blue butterfly

How many federally listed species are there?

Number of U.S. Listed Species per Calendar Year Total Number (cumulative) 1980 281 1985 384 1990 596 1995 962 2009 1321 Reasons???

U.S. Listed Species Distribution Type Total Number Listed (as of Oct. 2009) Flowering plants 716 Fish 139 Birds 90 Mammals 85 Clams 70

Success Stories Peregrine falcon Delisted 1999 American alligator Bald eagle Delisted 2007

SOME DEFINITIONS: Endangered---In danger of extinction within the foreseeable future throughout its range e.g. Indiana bat, Ocelot. Indiana bat and ocelot Not plant sub species distinct population segment. (of vertebrates). Define Species is a self reproducing collection of organisms. Species---Any species, subspecies (or variety of plant) or distinct population segment. Harberg comment- these definition slides seemed to fit better up here

SOME DEFINITIONS (cont.): Threatened---Likely to become endangered within the foreseeable future throughout its range e.g. Piping plover, Golden paintbrush. Piping plover and loggerhead sea turtle

SOME DEFINITIONS (cont.) Critical habitat --- Services define what is critical habitat. Legally defined areas within the occupied range of the species essential to species conservation. Take ---To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Violation of law carries criminal penalties. (your district engineer may go to jail!) Real estate supporting the primary life requisites of a species; food, cover and reproduction of some stage in the life cycle of the species. This is an elaborate process – with public comment and economic analyses. Harberg comment- Harm includes adverse effect to habitat that impairs essential behavioral patterns of the species and not just “designated critical habitat”, important because often that is what normally produces incidental take statements for Corps projects.

LEAD FEDERAL AGENCIES U.S. Fish and Wildlife Service (Dept. of Interior) Terrestrial and freshwater species plus migratory birds National Marine Fisheries Service (Dept. of Commerce) Marine, estuarine, and anadromous species

PRIMARY ROLE OF THE FEDERAL LEAD AGENCIES (e.g. FWS) Identification and listing of species and critical habitats. Administration of coordination & consultation provisions. Develop and implement recovery plans.

PRIMARY ROLE OF OTHER FEDERAL AGENCIES (e.g. Corps of Engineers) Section 7 (a)(1)- Use agency authorities to further the overall purposes of the Act (e.g. Authorized Fish and Wildlife Purpose for our Reservoir Projects, Ecosystem Restoration projects). ***Section 7(a)(2) of the ESA directs federal agencies to “insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of habitat of such species”. First is voluntary and second is mandatory. Harberg comment- did not see a major substantive difference between the two original bullets. Think it’s important for students to understand where in the act these requirements are for reference.

CONSULTATIONS Required for major federal actions in accordance with ESA Section 7. Usually requested by the federal agency in charge of or proposing an action. Better sooner than later, in the initial planning phase. May be formal or informal. Wise agencies do this sooner rather than later. Read 2 sentences from Act:

INFORMAL CONSULTATION (purpose) Clarify whether species or critical habitat may be in the action area. Determine what effect the action may have on a species or critical habitat. Explore ways to modify action to reduce or remove adverse effects to species. Determine the need to enter into formal consultation. Explore the design or modification of action to benefit the species.

INFORMAL CONSULTATION PROCESS Request species list or request verification of species list to FWS or NMFS (can be done in conjunction with FWCA process) If no species or critical habitat present- end consultation Informal discussions between an action agency and the FWS or NMFS concerning effects of the action on listed species and critical habitat. FWS or NMFS agree that action will not effect listed species or critical habitat- ESA compliance achieved. Make sure you document the process. If no effect we are done – Corps policy is that we coordinate no effect determinations with the services. Say there are 2 types of consultations – formal and informal Harberg comment- I think it’s important to discuss request for species list or verification since it is the cookbook way to initiate consultation, normally done through FWCA Planning Aid Letter.

INFORMAL CONSULTATION DEFINITIONS Not Likely to Adversely Effect--- Effects are expected to be Discountable, Insignificant, or completely Beneficial. Conservation Recommendations--- Measures not required by law but ways for USACE to conserve species under Section 7(a)(1).

INFORMAL CONSULTATION PROCESS (cont) If FWS or NMFS do not agree there will be no effect, agencies discuss modifying action to not likely adversely effect species or critical habitat. If agencies agree and action is modified, FWS or NMFS provide written concurrence and Conservation Recommendations- ESA compliance achieved. If agencies can not agree on modifications to not likely effect species or critical habitat then formal consultation becomes necessary. Harberg comment- Recommend omitting discussion of biological assessment from Informal Consultation discussion since many times informal consultation is completed successfully without a formal BA document.

FORMAL CONSULTATION (trigger) A “likely to adversely affect” determination triggers formal consultation. FWS or NMFS can also request that the action agency enter into formal consultation. USACE Findings are documented in Biological Assessment. More structured process. desert tortoise

FORMAL CONSULTATION (purpose) Identify nature and extent of the effects of the action on the species. Determines whether an action is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat. Determines if take “incidental” to the purpose of the action will occur. Identify Conservation Recommendations. Harberg comment-I think purpose should come before process

FORMAL CONSULTATION DEFINITIONS Biological Assessment (BA) ---Document prepared to evaluate potential effects of the action on the listed species. (Should be part of a project’s Feasibility Analysis). A “may effect” determination triggers the need for a biological assessment to be prepared by the action agency. Biological Opinion (BO) ---Document prepared by the USFWS/NMFS in response to a BA. Non-Jeopardy Opinion—project will not jeopardize the species. Jeopardy Opinion—project will jeopardize species.

FORMAL CONSULTATION DEFINITIONS (cont.) “may effect” - when a proposed action may pose any effects on listed species or designated critical habitat. “likely to adversely affect” - if any adverse effect to listed species may occur as a direct or indirect result of the proposed action or its interrelated or interdependent actions, and the effect is not: discountable, insignificant, or beneficial. jeopardy – the appropriate conclusion when the action agency or the Services identify situations where the proposed action is likely to jeopardize the proposed species or adversely modify the proposed critical habitat.

See Ch 4 of ESA Consultation Handbook included on disk There are timeframes – but they are (and we should be) flexible. See Ch 4 of ESA Consultation Handbook included on disk

FORMAL CONSULTATION PROCESS (continued) Formal consultation results in the FWS or NMFS issuing a Biological Opinion (review of action agency’s BA) that states whether a proposed action is likely to result in jeopardy or adverse modification of critical habitat. If no jeopardy or adverse modification is expected, process is complete. Formal consultation must be completed within 90 days of initiation unless an extension is agreed upon.

FORMAL CONSULTATION PROCESS (continued) If jeopardy is expected, the action agency can modify, with Reasonable and Prudent Alternatives (RPAs), its proposal to eliminate or reduce impacts below the threshold for jeopardy. An incidental take statement is usually provided and Reasonable and Prudent Measures (RPM) identified to minimize incidental take Take may be applied to habitat units also Discuss carrying capacity and that there is a Species Recovery Plan with a population target

INCIDENTAL TAKE An incidental take statement (ITS) in a Biological Opinion exempts take from an ESA violation and discusses the magnitude of take, reasonable and prudent measures (mandatory) to minimize the take. snail darter Section 9 violation. It is unlawful to take…Incidental take is an unintended taking resulting from proposed work that is typically of minor magnitude. Incidental take statement in the BO legitimizes expected take that may occur. Generally provides a limit to the take. Limits imposed as such as not to endanger the species.

FORMAL CONSULTATION DEFINITIONS (cont.) Reasonable and Prudent Measures (RPMs) – Mandatory actions the FWS believes necessary to minimize the impacts, i.e., amount or extent, of incidental take. Reasonable and Prudent Alternatives (RPAs) - recommended alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the FWS believes would avoid the likelihood of jeopardizing the continued existence of listed species or the destruction or adverse modification of designated critical habitat.

Action Agency Response to a Biological Opinion Agency must ensure that its actions will not jeopardize listed species or adversely modify critical habitat. It is the Agency’s responsibility to comply with the Act. The action agency evaluates Biological Opinion and decides how to proceed.

ACTION AGENCY CHOICES TO JEOPARDY OPINION W/RPAs Adopt RPAs. Not undertake project. Reinitiate consultation based on modification of the action not previously considered.

ACTION AGENCY CHOICES TO JEOPARDY OPINION W/RPAs (cont.) 4. Proceed w/action if it believes, upon review of BO, that such action satisfies Section 7. Note, w/o RPAs instituted, the protective provision of the ITS does not apply and agency may be liable for any take under the ESA. (Not recommended) If action agency cannot comply with the requirements not to jeopardize, etc. then it may apply for an exemption. Whatever path is chosen, action agency must notify the Service of its final decision.

Exemption Process “God Squad” Committee for Endangered Species: Cabinet level Agency Administrators Can provide exemptions to the ESA. Last Resort The Administrator of the NOAA. The Administrator of the EPA. Secretary of the Interior The Chairman of Council of Economic Advisors. State Member in which application takes place. Application can be rejected by the Secretary if it does not comply with the application criteria. Exemptions can carry with them mitigation and or enhancement requirements to minimize the effects of agency action on the endangered species or its critical habitats. Exemption Process: Can be initiated 90 days following termination of consultation. 50 CFR 451.01 establishes procedure and sets criteria for acceptance of application. 50 CFR 452 Prescribes the procedures used by the Secretary in examining applications for exemption. Who can apply: Federal action agency, governor of a state or a permit applicant. Where to apply: Secretary, Attention: Endangered Species Committee, DOI, 18th & C St., Washington DC. 20030.

Question: Are all Section 7 consultations controversial?

Approximately 40,000 Federal actions are reviewed annually. Answer: No Approximately 40,000 Federal actions are reviewed annually. Of the approximate 1,000 to 2,000 formal consultations per year, on average less than 1 percent result in a jeopardy or adverse modification finding (FWS Hdqtrs 2009).

Summary ESA Process Flowchart Species or Critical Habitat Present yes no Prepare Biological Assessment FWS/NMFS Agree? yes Likely to Adversely Affect? no No Further ESA Review Required no yes Likely to Jeopardize? no Harberg comment- changed “may affect” to Species or Critical Habitat present since “may effect” is technically determined through biological assessment/evaluation and consultation. Initiate Formal Consultation yes Action Cannot Proceed w/out “God Squad” Action Implement Action

Take Away Points Ensure BA Addresses needs of USFWS/NMFS Provide any needed information punctually Document procedural compliance (formal letters and transmittals) Follow up FWS/NMFS on schedule Elevate problems quickly to Regional Office, if necessary, may help alleviate staffing problems Here are some things that we need to do and/or explore to help keep things on schedule. One of the most important things we can do to maintain schedule is t make sure we do an adequate BA or a minimum of 30 days could be lost. If more information is needed, supply it quickly or state why it can not be supplied. There are some things we have done around the Corps to help USFWS/MFS when they have a manpower problem. Many times we have open end contracts where we can award contracts quickly to supply support to the services. We have supplied Corps personnel t work under the auspices of the services to do the initial draft of a BO. There have been situations where priorities from the regional office has caused conflicts and delays. We can intercede on behalf of the local offices with either their regional or HQ offices to explore reprioritization. We must work together closely and help each other to accomplish a mutual goal.

Consult early and often Not intended to kill projects Some sage advice… Consult early and often Not intended to kill projects NMFS/FWS’s role is to protect the species Ultimate responsibility lies with action agency Follow the process Out of 120,000 consultations only 18 projects did not go through Discuss the State listed and species of special concern

Class Exercise