1. The Endangered Species Act Everything you wanted to know and more

2. Purpose of ESA To conserve threatened and endangered species and the ecosystems upon which they rely.

3. 1. Determines the process for listing species. 2. Identifies interagency coordination and consultation. 3. Identifies prohibited acts and penalties.

4. Act establishes two legal duties 1.Federal agency must ensure that an action will not jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of critical habitat. 2.Federal agency must consult with the Services (USFWS or NMFS) to use their assistance regarding this duty not to jeopardize a listed species.

5. Legal duty goes to the federal agency - FHWA  Duty to consult does not run to ODOT. ODOT is an applicant – a person seeking formal approval or authorization from the federal agency as a precondition to conducting the action. ODOT is an applicant – a person seeking formal approval or authorization from the federal agency as a precondition to conducting the action.  But FHWA can delegate aspects of this process to ODOT including: –Preparation of the documentation –Informal consultation

6. Duty to Consult under Section 7(a)(2) FHWA shall  in consultation with and with the assistance of the Services,  insure that any action authorized, funded, or carried out by such agency  is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat  unless such agency has been granted an exemption. In fulfilling the requirements …  each agency shall use the best scientific and commercial data available.

7. Applies to all federal actions A federal action is an action where there is discretionary federal involvement or control. A federal action is an action where there is discretionary federal involvement or control. –Federal approvals –Federal permits –Federal funds

8. NEPA and ESA Consultation interact but do not define process  NEPA classifies projects (CE, EA and EIS). But classification not tie to the type of ESA consultation. thus a CE determination does not exempt a project from ESA consultation or from the informational requirements under the Act unless the action is covered by a programmatic agreement.

9. NEPA classification  the mere presence of listed species or critical habitat does not automatically require elevation of a classification from a CE to an EA or EIS.  The level of documentation depends upon the importance of the resource and the scope of the impact.

10. Biological Evaluation (BE)  Minimum evaluation (except for a programmatic)  Request to Services for information regarding the presence of listed species or critical habitat in the project area. The Services has 30 days to respond to a request for information. (That determination has a 90 days validity period - If preparation of documentation exceeds 90 days then need to reconfirm species list).

11. “No known species”  If Services respond with report that there are “no known species” then –ODOT prepares a “no effect” evaluation –FHWA concurs  No further consultation is needed.

12. “Known or likely to occur”  If Services respond with a report that protected species or critical habitat are known or likely to occur in project area then:  ODOT can enter into –informal consultation or or –formal consultation

13. Informal Consultation  Optional process.  Allows for mitigation and development of conservation measures to get to a “is not likely to adversely affect” determination.  FHWA delegates this process to ODOT so ODOT can work directly with the Services.  Documental/ information requirements flexible.  Formal consultation is not required if have a “is not likely to adversely affect” determination.

14. Informal consultation determination  “not likely to adversely affect” or or  “likely to adversely affect” Note: This process is delegated from FHWA to ODOT. ODOT makes the actual recommendation for the determination. This appears to be an ODOT determination. But actually FHWA is ultimately responsible for the determination. This continued delegation to ODOT is allowed because ODOT is meeting certain obligations and protocols established by FHWA.

15. “Not likely to adversely affect” determination  Once concurred with FHWA, no formal consultation required.

16. “Not likely to adversely affect” determination  If mitigation measures are included in the determination then these measures must be included in the project.

17. “Likely to adversely affect” determination  Elevated to formal consultation  Prepare a Biological Assessment (BA).

18. Content of a BA 1. A description of the action to be considered. 2. A description of the specific area that may be affected by the action. 3. A description of any listed species or critical habitat that may be affected by the action. 4. A description of the manner in which the action may affect any listed species or critical habitat and any analysis of any direct, indirect and cumulative effects. 5. Relevant reports, including any environmental impact statement, environmental assessment or biological assessment prepared. 6. Any other relevant available information on the action, the affected listed species or critical habitat.

19. Be aware that  Without this base information to support the BA, FHWA is vulnerable to legal challenges that it has not fulfilled its legal duties.  Remember that the Act charges FHWA with the responsibility of ensuring that the requirements of the Act (including the information required to make a determination) are met.  The BA must be completed within 180 days after its initiation (receipt of the species list).

20. Formal consultation  Can not be delegated from FHWA to ODOT.  Requires independent evaluation by FHWA before submitted.  Initiated when FHWA submits BA to Services.  Services must issue a Biological Opinion within 135 days (90 days for consultation plus 45 days).

21. Biological Opinion  No Jeopardy  Jeopardy  Jeopardy with Incidental Take

22. Jeopardy opinion  Must include reasonable and prudent alternatives to avoid jeopardy, if any.  If FHWA (or applicant ODOT) can not comply with these alternatives – it can apply for an exemption from the Act.

23. Jeopardy with incidental take NMFS can exempt parties under certain limited circumstances.  Non federal applicants (ODOT) may receive an incidental take permit –upon preparation of a permit application and conservation plan. –That plan must show measures taken to  minimize the effect and  mitigate to the maximum extent practicable.  Can require any other measures the Services deem appropriate  Without an incidental take permit – those implementing the project are not protected if a species is taken or critical habitat is destroyed.

24. Timing during consultation  Can not make any irreversible and irretrievable actions that would foreclose reasonable and prudent alternative measures to aid in not jeopardizing a listed species or destroying critical habitat. 16 USC Section 1536(d) Section 7(d).

25. Formal consultation must be reinitiated if  The amount or extent of taking in the incidental take statement is exceeded.  New information reveals effects of the action that were not previously considered.  The action is substantially modified in a manner that causes an effect to the listed species or critical habitat that was not considered.  A new species is listed or critical habitat is identified that may be affected by the identified action.

26. Violations  It is unlawful for any person to take any such species within the United States.  With respect to listed plants - It is unlawful for any person to “remove, and reduce to procession … maliciously damage or destroy such species, or remove cut, dig up, or damage or destroy any such species in any violation of a state criminal trespass law.

27. Who?  “any person” includes – contractors – state agencies and – those state employees that may direct contractors.

28. “Take” Is defined as: “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attend to engage in such conduct.”

29. “Harm”  Is defined as “any act that may include significant habitat modification or degradation where it actually kills or injures protected species by significantly impairing essential behavior patterns, including breeding, spawning, rearing, mitigating, feeding or sheltering.”  NOTE: Can apply to habitat modification or degradation of non-critical habitat.

30. Harm definition  Adopted after Babbitt v Sweet Home Chapter of Communities for a Great Oregon, (1995).  Intended to be interpreted broadly.

31. Harm activities identified in the rule include: 1. Constructing or maintaining barriers that eliminate or impede a listed species access to habitat or ability to migrate.

32. 2. Discharging pollutants such as oil, toxic chemicals …sewage into a listed species habitat.

33. 3. Removing, poisoning or contaminating plants, fish wildlife or other biota required by the listed species for feeding, sheltering or other essential behavioral patterns.

34. 4. Removing or altering rocks, soil gravel vegetation or other physical structures that ate essential to the integrity and function of a listed species habitat.

35. 5.Removing water or altering stream flow when it impairs spawning, migration, feeding or other essential behavior patterns.

36. 6. Releasing non-indigenous or artificially propagated species into a listed species habitat or where they can access the listed species habitat.

37. 7. Constructing or operating dams of water diversion projects with inadequate fish screens or fish passage facilities within the listed species habitat.

38. 8. Constructing, maintaining or using inadequate bridges roads or trails on the stream banks or unstable hill slopes adjacent to or above a listed species habitat.

39. 9. Conducting land use activities in riparian areas or areas susceptible to wasting and surface erosion which may disturb soil and increase sediment delivered to streams such as road construction.

40. Exception from law  No civil penalty if the defendant can show by the preponderance of the evidence that he/she committed the act based upon a good faith belief that he/she was acting to protect himself /herself or a member of his /her family or any other individual from bodily harm from any endangered or threatened species.

41. Civil Penalties Any person who violates any provision of the act, any regulation or permit may be assessed a civil penalty of not more than $500 for each such violation. –No requirement of “intent” –Each violation (not applied to each event but applied to each critter affected).

42. Limitations to DOJ defense of employee in civil violations  Factual determination if falls under Tort Claim Act –Was employee operating under the scope of their employment? –Was employee acting consistently with all agency policies and procedures? –Was employee acting under the direction of employer?

43. Criminal Penalties  Any person who knowingly violates any provision of the Act of any permit, certificate or regulation shall upon conviction be fined not more than $50,000 or imprisoned of not more than a year or both.

44. DOJ can not defend employees in criminal matters  Criminal behavior is not part of the scope of employment.  But there may be reimbursement of some legal expenses if –Employee informs employer –Tracks his/her costs and is –Is completely exonerated or the charges are dropped.

45. Consultation requirements in the event of an emergency Where there is an emergency (Acts of God, disasters casualties, national defense or security situations) there is a relaxed and expedited procedure to consult – try to consult on phone/email to extent possible. But formal consultation shall be initiated as soon as practicable after the emergency is under control.