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 1 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”) 2 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 of 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.” 3 1
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 4 Examples of “Harm Examples of “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 5 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) 6 2
ESA Compliance Decision Tree ESA Compliance Decision Tree Private Party Section 7 Consultation Yes Federal nexus? No Maybe No Takeavoidance Taking of species or its “No take” letter agreement habitat? Yes HCP or Conservation Agreement 7 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 8 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 9 3
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.” 10 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 11 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 12 4
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 13 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 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 15 5
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 16 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” 17 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 18 6
Informal Consultation Summary Informal Consultation Summary Federal Action No Effect = end May Affect Develop BA Not likely to adversely affect Likely to adversely affect Service does not concur Service concurs Go to Formal Consultation Go to Formal Consultation End of Informal Consultation 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 20 “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 21 7
“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 22 Formal Consultation Summary Formal Consultation Summary Likely to Adversely Affect Service Prepares BiOp Jeopardy No Jeopardy Implement Action with Stop Action RPMs, Terms & Conditions Implement RPA 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, or kill, or attempt to hunt, pursue, catch, capture, or kill.” – not harass or disturb 24 8
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 25 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 26 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 27 9
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