Living With the Endangered Species Act in Colorado

• Publication year: 2002
• Pages: 61
• Citation: Vol. 31 No. 2 Pg. 61

31 Colo.Law. 61 Colorado Lawyer 2002.

2002, February, Pg. 61. Living with the Endangered Species Act in Colorado

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61

Vol. 31, No. 2, Pg. 61

The Colorado Lawyer
February 2002
Vol. 31, No. 2 [Page 61]

Specialty Law Columns
Natural Resource and Environmental Notes
Living with the Endangered Species Act in Colorado
by Lawrence J. MacDonnell

Following a summary of the major regulatory provisions of the federal Endangered Species Act, this article discusses how these provisions are being applied to activities involving water depletions in the South Platte and Colorado River basins or affecting the Preble¡¦s meadow jumping mouse along the Colorado Front Range

This month¡¦s article was written by Lawrence J. MacDonnell Boulder, Of Counsel with Porzak, Browning & Bushong LLP--(303) 443-6800

Thirty-three federally listed, threatened, or endangered species of animals, fish, and plants are believed to be found in Colorado. One species is proposed for listing, and eleven additional species are candidates for listing.1 The state lists thirty-two threatened or endangered species and identifies an additional forty-three as species of special concern.2 Development almost anywhere in the state is likely to be subject to the legal responsibilities set out in the federal Endangered Species Act ("ESA").3

This article reviews the application of the ESA in Colorado and examines differences that apply to activities with and without federal involvement. The article also discusses the specific application of the ESA to water uses in Colorado and to activities affecting the Preble's meadow jumping mouse.4 It also describes several options available under the ESA that project proponents can use to anticipate and minimize regulatory control of new development that potentially affects protected species.

Requirements for
Activities with a
Federal Nexus

Section 7 of the ESA requires federal agencies to ensure that their actions (including the financing or approval of other actions) are not likely to: (1) jeopardize the continued existence of a listed species, or (2) result in the destruction or adverse modification of designated critical habitat.5Any public or private activities dependent on federal discretion are subject to this requirement. Common examples include activities requiring federal approvals, such as dredge or fill permits from the Army Corps of Engineers or special use permits from the U.S. Forest Service.

The federal action agency is responsible for complying with this provision of the ESA. However, as a practical matter, the agency will expect the project proponent itself to do the compliance work by: (1) identifying the potential or actual presence of protected species; (2) preparing a biological assessment; (3) undergoing formal consultation if necessary; (4) identifying ways to avoid jeopardizing endangered species and avoiding "take";6and (5) proposing measures to mitigate impacts, if applicable. These steps are covered in more detail below.

Identify Potential
Endangered Species

The project proponent should first determine if there is any reason to believe a proposed or listed species might utilize the area in which the activity is planned, or if the area is designated critical habitat. The Colorado office of the U.S. Fish and Wildlife Service ("FWS") is the best place to get this information.

Prepare Biological
Assessment

Assuming one or more listed or proposed species might utilize the general area, the next step for the project proponent is either to prepare a "biological assessment" or otherwise analyze if the planned activity "may" affect a protected species or habitat.7 If FWS concurs with a "no effect" finding, the process ends.8 A "may affect" finding leads to initiation of the formal consultation process with FWS.9

Formal Consultation Process For Biological Opinion

By statute, the formal consultation process is to be completed by FWS within ninety days of receiving a final application.10 Within forty-five days following conclusion of the formal consultation, FWS is to issue its written "biological opinion" as to whether the action (including its direct, indirect, and cumulative effects) is likely to jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat. If jeopardy or adverse modification is found, FWS is to suggest reasonable and prudent alternatives that can be taken by the agency or applicant.11

Incidental Take

The FWS biological opinion also must include an incidental take statement. This statement identifies whether the proposed action will incidentally result in a "take" or loss of individual species, the extent of such take, and whether this loss might jeopardize the continued existence of the species as a whole. It also specifies reasonable and prudent "measures" (as distinguished from alternatives) to minimize the impact of such taking on the species generally, as well as terms and conditions necessary to implement the measures.12

During the biological assessment, it is critical to identify ways that jeopardy can be avoided and take avoided or minimized. It may be possible to design a project in a manner that completely avoids impacts in sensitive areas, once such areas are fully identified and potential impacts are understood. The need for a formal consultation thereby may be avoided.

Mitigating Impacts

If total avoidance is not possible, effort should be made to identify ways to minimize impacts that might constitute jeopardy or take. Measures to mitigate those impacts also should be identified. The biological assessment or other studies should document all analyses of potential measures to minimize and mitigate impacts. If particular measures are found to be cost-effective, the project description should be modified to include them. In this way, FWS will conduct its formal consultation on a proposed project that is most likely to lead to a no-jeopardy opinion.

Requirements for Activities Without a Federal Nexus

The...