CHAPTER 13 WILDLIFE MITIGATION POLICY AND PRACTICE

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 13
WILDLIFE MITIGATION POLICY AND PRACTICE
Sandra Snodgrass ¹
Holland & Hart LLP
Denver, CO

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SANDRA A. SNODGRASS is a partner in the Denver office of Holland & Hart LLP. She helps natural resource developers, pipeline companies, traditional and renewable energy companies, and other clients successfully navigate the complex federal environmental review and permitting processes for a variety of proposed projects. Her extensive experience includes National Environmental Policy Act compliance and litigation; Endangered Species Act Section 7 consultation, Section 10 habitat conservation plans and incidental take permits, candidate conservation agreements, species listing issues, and litigation; development of avian and bat protection plans and bird and bat conservation strategies under the Migratory Bird Treaty Act; Bald and Golden Eagle Act permitting issues; Clean Water Act Section 404 permits; National Historic Preservation Act Section 106 consultation; right-of-way grants under the Federal Land Policy and Management Act and Mineral Leasing Act; voluntary conservation agreements; and certificates of public convenience and necessity under the Natural Gas Act. Ms. Snodgrass joined Holland & Hart in 1999 after graduating from Northwestern University School of Law.

I. Introduction

Mitigation of impacts is a key component of modern wildlife conservation. However, the term "mitigation" is not always used consistently in the context of environmental review. For instance, the National Environmental Policy Act uses a very broad definition of mitigation that includes avoidance, minimization, restoration, and compensation. But it is also common to see references to "avoidance, minimization, and mitigation measures," where mitigation is referring to the narrower concept of compensating for impacts by replacing or providing substitute resources. This paper focuses primarily on the more controversial compensation component of mitigation, describing the statutory sources of compensatory mitigation obligations and recent shifts in federal mitigation policy.

II. Statutory Mitigation Requirements

A. Endangered Species Act

1. Section 10 Incidental Take Permit

One of the most well-known statutorily mandated wildlife mitigation requirements is found in Section 10 of the Endangered Species Act (ESA). Once a species is listed as threatened or endangered under the ESA, it illegal for any person to "take" that species without authorization.² Section 10 provides one avenue for project proponents to obtain that requisite take authorization from the U.S. Fish and Wildlife Service (USFWS or Service).³

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Under Section 10, which applies only when the proposed action does not have any federal involvement (such as funding or authorization), the project proponent can apply to the Service for an incidental take permit.⁴ In order to obtain such a permit, an applicant must submit a habitat conservation plan (HCP).⁵ The HCP must specify, among other things, the steps to be taken to minimize and mitigate the impact of the taking.⁶ After public comment, the Service is authorized to issue the permit when it determines, among other things that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking."⁷

Neither the Act nor the regulations provide any guidance as to how this "maximum extent practicable" standard should be applied. However, the Service's Habitat Conservation Planning and Incidental Take Permitting Handbook (HCP Handbook) provides useful direction on this issue:

The statutory standard of minimizing and mitigating the impacts of the take "to the maximum extent practicable" under ESA Section 10(a)(2)(B)(ii) will always be met if the HCP applicant demonstrates that the impacts of the taking will be fully offset by the measures incorporated into the plan. However, the statutory standard will also be met where the applicant demonstrates that while the HCP will not completely offset the impacts of the taking, the minimization and mitigation measures provided in the plan represent the most the applicant can practicably accomplish. ⁸

The HCP Handbook further explains that "fully offset means the biological value that will be lost from covered activities will be fully replaced through implementation of conservation measures with equivalent biological value. Fully offset also means the mitigation is commensurate (equal) with the impacts of taking."⁹ Courts have upheld this approach.¹⁰

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The Service also views this standard as a single duty rather than one that requires the applicant to first minimize to the maximum extent practicable and then mitigate to that extent.¹¹ The D.C. Circuit held that this interpretation of the statute is reasonable.¹² Thus, if the minimization and mitigation measures of the HCP together fully offset the take, the applicant has satisfied the "maximum extent practicable" standard of Section 10. It is only when the measures included in the HCP do not fully offset the take impacts that the Service must determine that it would be impracticable for the applicant to do more before issuing the incidental take permit.

2. Section 7 Consultation

In contrast to Section 10, mitigation is not required as part of the Section 7 consultation process, which is the other avenue through with a party can receive authorization for incidental take of listed species. Under Section 7, each federal agency (usually referred to as the action agency) must consult with the Service to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of any critical habitat of such species.¹³ Thus, Section 7, rather than Section 10, applies when a project receives federal funding or requires a federal authorization, such as a right-of-way permit across federal lands.

Section 7 consultation may be formal or informal, depending on the anticipated impacts on listed species.¹⁴ If, during informal consultation, the Service determines or concurs with the action agency that the proposed action either is "not likely to adversely affect" listed species or critical habitat, the consultation process is terminated, and no further action, including formal consultation, is necessary.¹⁵ If the agency determines that its action may adversely affect listed species or critical habitat, it must undertake formal consultation with the Service.¹⁶ The product of the formal consultation process is usually a biological opinion issued by the Service indicating whether or not the proposed action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.¹⁷

Biological opinions that reach a "no jeopardy or adverse modification" determination usually include an incidental take statement, which exempts the identified

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take from Section 9 take prohibition.¹⁸ The incidental take statement must specify: (1) the impact of such incidental taking on the species; (2) the reasonable and prudent measures that the Service considers necessary or appropriate to minimize such impact; and (3) the terms and conditions that must be complied with by the action agency, the applicant, or both to implement such reasonable and prudent measures.¹⁹

Note that the reasonable and prudent measures in the incidental take statement must be designed to minimize, not mitigate, the impact of the incidental take. The Service has expressly stated in its Section 7 Consultation Handbook that it cannot require the action agency or the applicant to provide compensatory mitigation as part of the Section 7 consultation process: "Section 7 requires minimization of the level of take. It is not appropriate to require mitigation for the impacts of incidental take."²⁰

However, applicants will often voluntarily commit to implement mitigation measures for listed species during Section 7 consultation. In order for the Service to consider the beneficial effects of this voluntary mitigation when making its jeopardy determination, such mitigation must be included as part of the proposed action and thus enforceable under the ESA.²¹

B. Bald and Golden Eagle Protection Act

Under the Bald and Golden Eagle Protection Act (BGEPA), it is unlawful for a person to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle . . . or any golden eagle, alive or dead, or any part, nest, or egg thereof . . . ."²² BGEPA defines "take" as "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb."²³ "Disturb" is further defined to mean "to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior."²⁴ The provisions of BGEPA apply regardless of whether a project has a federal nexus.

BGEPA includes a permit program under which the Service may issues permits for the incidental take (injury, mortality, or disturbance) of bald and golden eagles and for intentional eagle nest removal.²⁵ Depending on the level of take authorized and the status

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of the species in the area of the project, the Service may require mitigation as a condition of the permit.

1. Eagle Incidental Take Permit Under 50 C.F.R. § 22.25

Permit Applicability. The incidental take permit covers both mortality/injury take and disturbance take.²⁶ The permit is available where the take (1) is compatible with the...