Chapter 11 - § 11.4 • MANAGED SPECIES

• Jurisdiction: Colorado

§ 11.4 • MANAGED SPECIES

§ 11.4.1—Endangered Species Act (Federal)

• 16 U.S.C. §§ 1531 to 1544

The Endangered Species Act (ESA) authorizes the Department of the Interior to determine whether any species is endangered or threatened with becoming extinct and to designate critical habitat to protect such species. The critical habitat determination is based on analysis of the geographical area occupied by the species and the physical and biological features essential to its conservation. The critical protected area may actually extend beyond the space currently inhabited by the species if the Department concludes such expansion is essential to preservation, but the ESA precludes the Department from designating "the entire geographical area" that could potentially be occupied by the species.⁸² The designation of the critical habitat must be based on "the best scientific data available," "after taking into consideration the economic impact" of imposing restrictions on the area.⁸³

The Department is required to publish and periodically update lists of threatened and endangered species, including specifications of critical habitats and their ranges, in the Federal Register.

All federal projects or activities, including private projects requiring federal permits or funding, must determine if endangered species would be harmed by the activity. If endangered species are or may be present, a Section 7 Consultation with the Department must occur. Any proposed construction or development within a critical habitat requires a biological assessment⁸⁴ and a permit or special exemption⁸⁵ for the "taking" of the habitat. The term "take" is broadly means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.⁸⁶ The ESA authorizes citizen suits to enjoin alleged violations of the ESA or its implementing regulations, and such suits can include attorney costs and fees.⁸⁷ Violators of the ESA are subject to civil penalties of up to $25,000 for each violation, and up to $50,000 or one year in prison, or both, for criminal violations.⁸⁸ The designation of several endangered or threatened plants and animals within Colorado has delayed development in some areas and precluded some developments altogether.

§ 11.4.2—Migratory Bird Treaty Act (Federal)

• 16 U.S.C. §§ 703 to 712

The Migratory Bird Treaty Act (MBTA) implements four conservation treaties that the United States entered into with Canada, Mexico, Japan, and...