Federal Coordination for Endangered Species Act and Essential Fish - PDF document

Federal Coordination for Endangered Species Act and Essential Fish Habitat for NYC Locally Administered Federal Aid Projects Presented by Christa Ippoliti, NYSDOT Endangered Species Coordinator August 17, 2020 1

Federal ESA • The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Services (NMFS) are primarily responsible for overseeing the Endangered Species Act (ESA). • Federal agencies are required to consult with the USFWS and/or NMFS to ensure that any actions authorized, funded, or carried out are not likely to jeopardize species or destroy or adversely modify critical habitat. • USFWS oversees non‐marine species, NMFS oversees marine and anadromous species. • Section 9 of the ESA prohibits the taking of any federal endangered animal species by any entity, public or private, regardless of federal agency involvement. Why do you need to Consult for Endangered Species? The U.S. Fish and Wildlife Service and National Marine Fisheries Services are primarily responsible for overseeing the federal Endangered Species Act. Federal agencies have various requirements under Section 7 of the Endangered species act, namely Federal agencies are required to consult with the USFWS and NMFS to ensure that any actions authorized, funded, or carried out are not likely to jeopardize species or destroy or adversely modify critical habitat. USFWS oversees non-marine species, and NMFS oversees marine and anadromous species. Section 9 of the ESA prohibits the taking of any federal endangered animal species by any entity, public or private, regardless of federal agency involvement. So this means even if there is no federal money or permitting and FHWA and/or US Army Corp are not involved, there can not be a ‘taking’ of a federally protected species without approval from USFWS and/or NMFS. In this instance coordination would occur with the project sponsor and USFWS and/or NMFS directly. 2

New York State ESA • The Environmental Conservation Law Article 11 Title 5, and its implementing regulations in 6 NYCRR Part 182, protects endangered and threatened species. • The Environmental Conservation Law Article 9 Title 15, and its implementing regulations in 6 NYCRR Part 193, protects species of plants that are listed as endangered, threatened, rare, or exploitably vulnerable. • The Environmental Conservation Law Article 11 Title 1, all “shellfish” found in New York State are protected under this law. New York state also has laws protecting listed species. The Environmental Conservation Law, Article 11 Title 5, and its implementing regulations, protects endangered and threatened species of fish, shellfish, crustacea or wildlife by prohibiting the taking, importation, transportation, possession or sale of any such species. The Environmental Conservation Law, Article 9 Title 15, and its implementing regulations, protects species of plants that are listed as endangered, threatened, rare, or vulnerable by prohibiting any person from collecting or destroying any such species without the consent of the landowner. You should be aware that State listed plants are not afforded the same level of protection as state listed animals. In accordance with ECL Article 9 Title 15, protected plants may be destroyed with permission of the landowner, thus agency coordination is not necessary. However, It is NYSDOT’s view that as a best management practice, when protected plants are identified during screening, a concerted effort should be made to avoid and minimize impacts to them. Also, under the Environmental Conservation Law Article 11 Title 1, all “shellfish” found in New York State are protected under this law. In Region 11 currently the only S1/S2 mussel waterbody is the Bronx River. So if you have a project that will impact this waterbody the sponsor will be required to coordinate with DEC for potential impacts to mussels. 3

Other Regulations • The federal Magnuson‐Stevens Fishery Conservation and Management Act Section 305(b)(2) protects Essential Fish Habitat (EFH). Coordination with NMFS required. • The federal Migratory Bird Treaty Act protects birds that migrate across international borders. • The federal Bald & Golden Eagle Protection Act (BGEPA) provides for the protection of bald eagles & golden eagles. Osprey nesting on bridge Did you know bald eagles could swim? Cornell seagrass restoration project Other regulations protecting listed species included: The federal Magnuson Stevens Fishery Conservation and Management Act which protects Essential Fish Habitat. So if you have a project that impacts EFH, coordination with NMFS will required. We will discuss this in more detail later in the presentation. The federal Migratory Bird Treaty Act protects birds that migrate across international borders. Under the Migratory Bird Treaty Act, it is unlawful to intentionally or unintentionally take, capture or kill any migratory bird unless a Migratory Bird Permit is first obtained from the U.S. Fish and Wildlife Service. Each violation of the Migratory Bird Treaty Act can result in a fine of $15,000, imprisonment for six months , or both. Migratory bird species that are protected under the Migratory Bird Treaty Act include all waterfowl, herons, eagles, hawks, falcons, owls & songbirds. Migratory bird species that are not protected under the Migratory Bird Treaty Act are domestic pigeons, English sparrows, European starlings & monk parakeets. Although these species are not protected, they should be treated in a humane manner. If the nests are in the way of an inspection or for construction, contractors should relocate active nests of unprotected species into nearby trees or to transfer the nests to a wildlife rehabilitator. There is also the federal Bald and Golden Eagle Protection Act, which provides for the protection of the bald and golden eagles. 4

State and Federally Listed Species ALL FEDERALLY LISTED SPECIES ARE ALSO LISTED BY NYS. BUT NOT ALL NYS LISTED SPECIES ARE LISTED BY THE FEDS. If there are impacts to a federally listed species coordination with NYSDEC is also required for that species. If there are impacts to a state only listed species coordination with FHWA/USFWS/NMFS is NOT required . There are state listed species and there are federally listed species and this is something that seems to confuse people so I wanted to go over this again: ALL FEDERALLY LISTED SPECIES ARE ALSO LISTED BY NYS. BUT NOT ALL NYS LISTED SPECIES ARE LISTED BY THE FEDS. So if the USFWS or NMFS lists a species as threatened or endangered, DEC automatically lists that species as a NYS Protected species (although the species may not have the same listing status in New York State as it does by the feds). Therefore, if your project proposes impacts to a federally listed species, coordination is required with the federal lead and USFWS and/or NMFS and coordination is also required with DEC for that species because it is also state listed. If there are impacts to a state only listed species, coordination with DEC is required but coordination with FHWA and/or USFWS and NMFS is NOT required. Therefore there should be no mention of a state only listed species in the FHWA coordination letter. Impacts to federal and state only listed species should be discussed in the design report. Effect determinations for federally listed species are stated as “No effect” or “may effect, not likely to adversely affect”. For NYS only listed species the effect determination are stated as “Take not likely” or “take likely”. 5

Federal Animal Species in NY (USFWS) • Indiana bat • Northern long‐eared bat • Karner blue butterfly • Dwarf wedgemussel • Rayed bean • Clubshell • Chittenango ovate amber snail • Bog turtle • Eastern Massasauga • Piping plover Region 11 • Roseate tern IPaC • Red knot In New York State we have several federal and state listed species managed by USFWS: We have 2 bat species, the Karner blue butterfly, 4 mollusk species, the Bog turtle, the Eastern Massasauga, and in Region 11 we have the Piping plover, Roseate tern, and the Red knot that come up on most projects in IPaC. The feds are also looking to list the Monarch butterfly, little brown bat, tri colored bat, and some bee species soon. 6

Federal Plant Species in NY (USFWS) • Northern wild monkshood • American hart’s‐tongue fern • Northeastern bulrush • Sandplain gerardia • Houghton’s goldenrod • Small whorled pogonia • Leedy’s rosewort • Seabeach amaranth Region 11 IPaC The USFWS also manages impacts to the following federal and state listed plant species: Northern wild monkshood American hart’s-tongue fern Northeastern bulrush Sandplain gerardia Houghton’s goldenrod Small whorled pogonia Leedy’s rosewort And Seabeach amaranth For federally listed plants you can not Remove or maliciously damage them on lands with Federal jurisdiction, or in violation of state trespass law. But as with state only listed plant species, federally listed plant species can be removed with the approval of the land owner. But coordination with federal agencies is required first. 7