1 Agency Roles Agency Roles U.S. Fish & Wildlife Service - - PDF document

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Federal and State Endangered Federal and State Endangered Species Issues Relevant to the Species Issues Relevant to the Oil and Gas Industry in California Oil and Gas Industry in California

Presented by:

Barbara A. Brenner Stoel Rives LLP

Bakersfield Association of Professional Landmen May 10, 2011

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Federal ESA Federal ESA

• Section 9 prohibits a person from taking an

endangered species.

• By regulation, the applicable Service can

apply the Section 9 take prohibition to threatened species (and usually do). (“4(d) Rule”)

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What is a “take”? What is a “take”?

• “Take” means to harass, harm, hunt, wound

capture or kill a species, or attempt to do any

• f those things.
• “Harm” means an act which “actually kills or

injures wildlife,” including “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, spawning, rearing, migrating, feeding and sheltering.”

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Agency Roles Agency Roles

• U.S. Fish & Wildlife Service

– terrestrial and freshwater species, plants

• National Marine Fisheries Service

– marine species

• Charged with listing species, enforcing the

“take” prohibition, and consulting with other federal agencies

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Examples Examples of “Harm

• f “Harm” and “Harass”

” and “Harass”

• NMFS has provided examples of harm to

salmon:

– removing water or altering stream flow when it is likely to impair spawning, migration or other essential functions

• FWS’ position is that seismic exploration

could harm or harass burrowing species

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Incidental Take Authorization Incidental Take Authorization

Two ways to obtain incidental take authorization:

• Section 10 habitat conservation plan (HCP)
• Formal section 7 consultation (usually BiOp)

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ESA Compliance Decision Tree ESA Compliance Decision Tree

Private Party Federal nexus? Taking of species or its habitat? HCP or Conservation Agreement Section 7 Consultation Takeavoidance agreement “No take” letter Maybe No Yes No Yes

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No Take; Take Avoidance No Take; Take Avoidance

• No Take Letter

– infrequent – service concurs that actions will not risk taking species – no take coverage – may assist with local permitting – builds record that action is not harmful

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No Take; Take No Take; Take Avoidance Avoidance (con’t

con’t)

• Take Avoidance Agreement

– agree to avoid actions that may take – service signs = “action” requiring Section 7 consultation – get take coverage through Section 7 consultation process

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Habitat Conservation Plans Sect. 10 Habitat Conservation Plans Sect. 10

• For private actions where take authorization

is needed or where actor wants “assurances”

• Section 10 authorizes issuance of incidental

take permit for “taking otherwise prohibited if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”

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HCP Contents and Issuance Criteria HCP Contents and Issuance Criteria

• Applicant must submit HCP that specifies:

– likely impact – minimization and mitigation measures – available funding – alternatives considered – any other measures deemed necessary by the Service

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HCP Contents and Issuance HCP Contents and Issuance Criteria Criteria

(con’t con’t)

• Service may approve HCP and issue ITP if:

– taking will be incidental – applicant will minimize and mitigate impacts to the maximum extent practicable – funding is adequate – taking will not appreciably reduce likelihood of survival and recovery

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Assurances Assurances

• HCP should set forth foreseeable future “changed

circumstances” and agreed-upon responses to those changes

• For any “changed circumstances” not provided for in

the HCP, the Service may not require additional conservation or mitigation measures

• For “unforeseen circumstances,” the Service may

require modifications to implementation of the HCP, but may not require commitment of additional land, water, or financial compensation, or additional restrictions on use of land, water or other natural resources beyond agreed-upon levels in HCP

HCP Summary HCP Summary

Negotiation with USFWS and/or NMFS, applicant and involved parties HCP prepared by applicant USFWS/NMFS issues Incidental Take Permit Applicant implements action with conservation measures

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Federal Consultation (Sect. 7) Federal Consultation (Sect. 7)

• Section 7 requires a federal action agency to

ensure that any action it

– “authorizes,” “funds” or “carries out” and – that “may affect” listed species

• Is not likely to

– jeopardize listed species by appreciably reducing the likelihood it will survive & recover in the wild – adversely destroy or modify critical habitat

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Applicant Applicant

• An “applicant” is defined as:

– any person who requires formal approval or authorization from a federal agency

• Actions that may require section 7 consultation include:

– federal contracts, permits, licenses, authorizations, leases, or funding

• Special role in consultation

– “designated non-federal representative” – provide data and information; review drafts – will implement conditions required as a result of consultation – get incidental take coverage

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Initial Consultation Process Initial Consultation Process

• Agency action, “may affect” determination
• Preparation of biological

assessment/evaluation by

– action agency or – applicant as “designated non-federal representative”

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Initial Consultation Initial Consultation Process Process (con’t

con’t)

• Submit BA/BE to Service with either:

– “likely to adversely affect” and request for formal consultation

• GO TO FORMAL CONSULTATION

– “not likely to adversely affect” and request for concurrence

• INFORMAL CONSULTATION CONCLUDED

7 Informal Consultation Summary Informal Consultation Summary

Federal Action No Effect = end May Affect Develop BA Not likely to adversely affect Service does not concur Go to Formal Consultation Service concurs End of Informal Consultation Likely to adversely affect Go to Formal Consultation

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Formal Consultation: the BiOp Formal Consultation: the BiOp

• Evaluates effects of action

– includes indirect effects – includes interrelated and interdependent effects: part of a larger action and depend on the larger action for their justification; have no independent utility apart from the action under consideration. 50 C.F.R. § 402.02

• Considers environmental baseline
• Considers cumulative effects (future state & private

actions)

• Includes “conference” on proposed species
• Results in a “jeopardy” or “no jeopardy” determination
• Results in “adverse modification” or “no adverse

modification” for critical habitat

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“No Jeopardy” BiOp “No Jeopardy” BiOp

• Allows the action to move forward
• Includes “Reasonable & Prudent

Measures”

• “Terms & Conditions” implement the RPMs

– cannot change the scope, duration, timing, location – cannot result in more than a “minor” change

• Authorizes Incidental Take

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“Jeopardy” BiOp “Jeopardy” BiOp

• Action agency cannot move forward with

action as is

• Service can propose “Reasonable and

Prudent Alternative” (RPA)

• RPA must be reasonable, feasible
• RPA can require more than minor changes
• If no RPA, action cannot move forward

Formal Consultation Summary Formal Consultation Summary

Likely to Adversely Affect Service Prepares BiOp Jeopardy Stop Action Implement RPA No Jeopardy Implement Action with RPMs, Terms & Conditions

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California Endangered Species California Endangered Species Act (CESA) Act (CESA)

• Fish & Game Code § 2080 prohibits “take” of

any species that is listed as endangered or threatened

– “take” is defined as “hunt, pursue, catch, capture,

• r kill, or attempt to hunt, pursue, catch, capture,
• r kill.”

– not harass or disturb

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Incidental Take Permit (2081 Permit) Incidental Take Permit (2081 Permit)

• Early consultation with DFG
• Take is incidental to otherwise lawful activity
• Minimization and avoidance measures to minimize

project impacts

• Fully mitigated standard—must offset project caused

losses of species and habitats

• Permit will not jeopardize continued existence of

species

• CEQA compliance required

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Incidental Take Permit (2081 Permit) Incidental Take Permit (2081 Permit) (con’t

con’t)

• Fully mitigated standard

– measures to minimize and fully mitigate impacts of the take – mitigation roughly proportional in extent to the take impact – maintain project objectives to extent possible – mitigation can successfully be implemented

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2081 Permit Conditions 2081 Permit Conditions

• Measures to minimize the take of species and

to mitigate the impacts caused by the take set forth in permit and attachment(s) to the permit.

• A mitigation plan (Mitigation and

Management Plan or NCCP) prepared by the Permittee in coordination with DFG

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2081 Permit Conditions 2081 Permit Conditions (con’t

con’t)

• Delineation of construction sites; take avoidance

measures; preconstruction notification; employee education programs; reporting procedures when an animal is killed, injured or trapped; compliance inspections and reports; acquisition and transfer of habitat management lands; and associated funding ($ for document processing and for initial protection e.g., fencing, posting, clean-up), and endowments.

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2081 Permit Conditions 2081 Permit Conditions (con’t

con’t)

• Mitigation and monitoring endowment fund as

security for ongoing mitigation and monitoring (generally 1st 5 years)

• Endowment holder fee (NFWF)
• Conservation Easement holder (Land Trust,

CRT)

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2080.1 Consistency Determinations 2080.1 Consistency Determinations

• Applicant who has obtained a federal incidental take

statement (BiOp or HCP) can request DFG to authorize take of state listed species by issuing a consistency determination

• Applicant must submit the federal BiOp or HCP to the

Director of Fish and Game

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2080.1 Consistency Determinations 2080.1 Consistency Determinations

(con’t con’t)

• 30-day clock for processing the Consistency

Determination

• DFG must determine that the conditions specified in the

federal incidental take permit are consistent with CESA

• Used only for species that are listed under both federal

ESA and CESA

– certain species only State listed – State has fully protected species

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2080.1 Consistency Determinations 2080.1 Consistency Determinations

(con’t con’t)

• Under a Consistency Determination:

– DFG cannot add any conditions to the federal BiOp to meet the full mitigated standard – often the BiOp does not contain enough details in describing mitigation measures – the federal standard for including plants is jeopardy – if pertinent section of the Endangered Species Act change, Consistency Determination could become invalid – Fully protected species require complete avoidance

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Fully Protected Species Fully Protected Species

• Fully protected was the State's initial effort in

the 1960's to identify and provide additional protection to those animals that were rare or faced possible extinction.

• Most fully protected species have also been

listed as threatened or endangered under the state or federal endangered species laws and regulations.

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Fully Protected Species Fully Protected Species (

(con’t con’t) )

• Fully protected species may not be taken or

possessed

• No licenses or permits may be issued for their

take except for necessary scientific research and relocation

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Fully Protected Species Fully Protected Species (

(con’t con’t) )

Fully Protected species include:

Fishes

• Colorado River squawfish
• Mohave chub
• Modoc sucker

Amphibians

• Santa Cruz long-toed

salamander

• Limestone salamander
• Black toad

Reptiles

• blunt-nosed leopard lizard
• San Francisco garter snake

Mammals

• Morro Bay kangaroo rat
• bighorn sheep
• salt-marsh harvest mouse

Birds

• American peregrine falcon
• brown pelican
• California condor
• golden eagle
• greater sandhill crane
• light-footed clapper rail
• bald eagle
• trumpeter swan
• white-tailed kite

Blunt-Nosed Leopard Lizard

San Joaquin Kangaroo Rat San Joaquin Kit Fox

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Natural Community Conservation Natural Community Conservation Planning (NCCP) Planning (NCCP)

• Broad-based ecosystem approach to planning for the

protection and perpetuation of biological diversity

• Identifies and provides for the regional or areawide

protection of plants, animals, and their habitats, while allowing compatible and appropriate economic activity

• Broader in its orientation and objectives than the

California and Federal Endangered Species Acts

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Natural Community Conservation Natural Community Conservation Planning (NCCP) Planning (NCCP)(con’t

con’t)

• Designed to identify and protect individual species

that have already declined significantly

• Focus is long-term stability of wildlife and plant

communities and including key interests in the process

• DFG and USFWS provide support, direction, and

guidance to NCCP and HCP participants

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Questions Questions

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Thank you! Thank you!

Contact information:

Barbara A. Brenner babrenner@stoel.com 916-319-4676