Chapter 15 - § 15.1 • OVERVIEW OF THE ENDANGERED SPECIES ACT

• Jurisdiction: Colorado

§ 15.1 • OVERVIEW OF THE ENDANGERED SPECIES ACT

The Endangered Species Act (ESA), 16 U.S.C. §§ 1531 to 1544, has been called "the most powerful environmental law ever passed to protect wildlife,"¹ "the most powerful environmental law in the nation,"² "the most stringent environmental statute in the world,"³ and even "the pit bull of environmental laws."⁴ The ESA is also "a highly complex and extremely difficult Act both to understand and implement."⁵ This chapter provides an outline of the machinations of the Act and its effects on private lands in Colorado, including the development permitting process. While the ESA significantly affects land acquisition, transfer, and development,⁶ many of these effects can be anticipated and mitigated through cooperative efforts to protect endangered and threatened species.

The major purposes of the ESA are to conserve the ecosystems on which endangered and threatened species depend and to conserve these species.⁷ The ESA is administered by the Department of Commerce (through the National Oceanic and Atmospheric Administration (NOAA) Fisheries) and the Department of the Interior (through the Fish and Wildlife Service (FWS)).⁸ Because species may travel to new habitats, have changing population levels, and are affected in different ways by different levels of development, the ESA's effect on private property and on private actions on federal property may change over time, sometimes dramatically. Recent changes to the ESA have mitigated some of these effects.

As of 2020, the FWS had listed approximately 2,531 U.S. species as threatened or endangered.⁹ Between the last publication of this book in March of 2016 and February of 2020, 14 U.S. species had been delisted: 13 due to recovery efforts and one due to erroneous data.¹⁰ Since the ESA's inception, only 29 domestic species have been delisted due to successful recovery.¹¹ As of May 2020, 90 species (including both domestic and foreign species) have been delisted: 11 due to extinction; 20 due to erroneous listings; and 59 due to recovery.¹²

Despite its laudable purpose, the Act is plagued by problems in implementation — among others, a lack of coordination with state and local governments; a failure to designate recovery goals within set timeframes; the failure to economically incentivize private conservation; and a tendency to allow sue-and-settle litigation.¹³ The ESA has not been substantively updated since 1988. Various bills have been introduced in Congress in recent years, including nine bills introduced by the Congressional Western Caucus in 2018¹⁴ aimed at modernizing the ESA, but these bills have been stymied by Congressional gridlock.

§ 15.1.1—Federal Regulation

Historically, and to this day, wildlife management lies within the authority of the states. The ESA was passed in 1973 as an encapsulation of and expansion of federal authority.¹⁵ The Act attempts to conserve "ecosystems upon which endangered and threatened species depend" and "to provide a program for the conservation of such endangered species and threatened species."¹⁶ More recently, some states like Colorado have unsuccessfully asserted that the ESA is an obstacle to productive conservation and wildlife management.¹⁷

Species, subspecies, or populations¹⁸ of plants¹⁹ or animals may be listed as threatened or endangered (together, "listed species"),²⁰ and therefore protected, under the ESA. A threatened species is one that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."²¹ An endangered species is one that is "in danger of extinction throughout all or a significant portion of its range."²² At the time of listing, critical habitat essential to the conservation of the species is also designated.²³ The FWS may exclude habitat from critical habitat if the benefits of the exclusion outweigh the benefits of inclusion, and possibly if there is a special management plan already in place.²⁴

Since 2016, the Trump administration has promulgated a variety of rules and policies that affect the ESA. The Department of the Interior published "Regulatory Reform" on June 22, 2017.²⁵ This document sought public comment regarding "how DOI can improve implementation of regulatory reform initiatives and policies and identify regulations for repeal, replacement, or modification."²⁶ The FWS, along with NOAA and the NOAA Fisheries (aka the National Marine Fisheries Service), published three key rules discussed below. President Biden has ordered a review of these rules so the reader is urged to check if they are still in effect.

• Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat²⁷ :

• ○ This rule revised agency regulations that implement § 4 of the ESA, specifically with regard to how species are either listed or delisted. One revision of note regards designation of critical habitat (50 C.F.R. § 424.12(b)(2)). As discussed in the final rule, unoccupied areas will only be considered essential for critical habitat designation when (1) occupied areas are insufficient for species conservation, and (2) there is a reasonable certainty that the unoccupied area will contribute to species conservation. Further, in requiring that the unoccupied area must have "one or more of the physical or biological features essential"²⁸ to species conservation, the agencies sought to address the ruling in Weyerhauser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018).²⁹

• Endangered and Threatened Wildlife and Plants; Regulations for Prohibitions to Threatened Wildlife and Plants³⁰ :
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• ○ This rule revised the "blanket 4(d) rule" such that FWS prohibitions relating to endangered species (e.g., take prohibitions) will not automatically be extended to threatened species that are listed after the effective date of the final rule.³¹ FWS may still prepare species-specific rules with necessary prohibitions as the agency deems necessary.

• Endangered and Threatened Wildlife and Plants; Regulations for Interagency Cooperation³² :

• ○ This rule revised agency regulations pertaining to § 7 of the ESA, specifically with regard to interagency consultation and cooperation.

The ESA has a significant impact on development of private lands in Colorado. First, § 7 of the ESA regulates agency actions that jeopardize the continued existence of an endangered or threatened species.³³ In addition, section 9 of the ESA prohibits the take of endangered or threatened species.³⁴ Finally, section 10(a) authorizes the permitted take of endangered or threatened species on private lands.³⁵

Section 7 requires federal agencies to consult with the FWS before "making an irreversible commitment of funding." This limits federal discretion in issuing permits, such as those required under the Clean Water Act,³⁶ allocating funding, or taking other acts involving private land or private actions on public land that implicate a listed species.³⁷ The federal agency (acting agency) must consult with the FWS to ensure its actions do not violate the ESA.³⁸ Consultation may result in an "incidental take statement" that details the expected level of take from the action.³⁹ Consultation is discussed further in § 15.3.1, "Section 7 Of The ESA."

Section 9 of the ESA regulates actions that "take" listed species on private land.⁴⁰ The definition of "take" is broad, including acts that "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect [the species], or to attempt to engage in any such conduct."⁴¹ "Harm" has been interpreted by the Supreme Court to include damage to habitat that will disrupt the essential breeding, feeding, or sheltering behavior of the species⁴² and the modification of habitat, although this latter interpretation is subject to continued debate.⁴³ Controversies over species that reside primarily on private land, such as the lesser prairie chicken, are likely to bring renewed attention to § 9. Depending on the current prevailing policy, the FWS can be aggressive in asserting activities it construes as violative of § 9. For example, for Gunnison sage-grouse, FWS has defined "take" as including but not limited to: construction projects, agricultural use and livestock grazing, habitat improvement or restoration, fire suppression, power lines, fences, communication towers, and buildings; motorized and non-motorized recreational use; and activities such as well drilling, operation, and maintenance.⁴⁴

There are limited exceptions to the § 9 take limitations. For example, the FWS has entered into individual agreements with developers that allow the FWS to ascertain the impact of development on an endangered species as development progresses.⁴⁵ There is also a limited exception to § 9 for economic hardship.⁴⁶

In furtherance of the affirmative duty to conserve listed species, the ESA requires the FWS to develop and implement a recovery plan unless a recovery plan will not promote the conservation of the species.⁴⁷ On November 21, 2016, the FWS issued a final rule revising its Mitigation Policy in order to require a "net gain" in conservation, or at a minimum, no net loss from proposed actions.⁴⁸ This "net gain" standard was reversed in its entirety as a result of President Trump's Executive Order 13783, "Promoting Energy Independence and Economic Growth" (March 28, 2017), and all policies that the 2016 Mitigation Policy superseded were thereby reinstated.⁴⁹

Section 10(a) of the ESA provides that the FWS may permit federal and nonfederal actions⁵⁰ that take a listed species.⁵¹ Permits available authorizing the limited take of a listed species pertinent to private landowners⁵² include an Incidental Take Permit (ITP) and an Enhancement of Survival Permit.⁵³ An ITP is issued pursuant to a determination by the FWS that an action with a federal nexus will not serve to jeopardize the continued existence of a listed species.⁵⁴ Limited take authorized by the ITP is exempt...