Chapter 15 - § 15.3 • THE REGULATION OF LISTED SPECIES ON PRIVATE LAND

• Jurisdiction: Colorado

§ 15.3 • THE REGULATION OF LISTED SPECIES ON PRIVATE LAND

Once a species is listed as endangered or threatened,¹⁸⁴ its take is regulated on private land, and the actions of federal agencies that have the potential of jeopardizing the species are subject to review by the FWS. The takings provisions of § 9 apply to all lands under United States jurisdiction.¹⁸⁵ Section 10(a) provides for permitting of incidental take of endangered or threatened species located on private property. The § 7 restrictions apply to "any public or private activities dependent on federal discretion."¹⁸⁶ The first section below describes the compliance process for private actions subject to federal agency discretion under § 7. The second section below describes § 10(a) regulation of activities on private land not subject to federal discretion.

§ 15.3.1—Section 7 Of The ESA

The ESA requires that each federal agency must ensure that any action by the 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 habitat of such species."¹⁸⁷ Actions that affect designated critical habitat are also regulated. The scope of federal action affecting private lands is broad, including issuance of federal permits¹⁸⁸ and federal funding of roads or other infrastructures. Federal actions affecting private use of federal land, such as the granting of an oil and gas lease by the BLM,¹⁸⁹ are also subject to § 7 consultation requirements.

If an agency cannot meet its obligations under the ESA, it may request an exemption from the Endangered Species Committee, also called the "God Squad." This Committee is chaired by the Secretary of the Interior and includes the Secretary of Agriculture, the Secretary of the U.S. Army, the Chairman of the Council of Economic Advisors, the Administrator of the EPA, the Administrator of NOAA, and a presidential appointment from each state affected by the application.¹⁹⁰ Only six applications for an exemption have ever been filed, and three of the six were eventually withdrawn.¹⁹¹

The Consultation Process

Consultation¹⁹² is the process by which a federal agency evaluates actions that may jeopardize listed species. Consultation is required when a private party requires a federal permit, receives federal funding, or implicates federal authorization. "Action" is broadly defined. For example, renewal of an existing contract has been interpreted as an agency action when the agency had power to alter some terms of the contract.¹⁹³ When the federal action is the issuance of a permit, the applicant may be required to prepare the draft documents eventually submitted from the acting agency to the FWS. A permittee may request prospective or "early consultation" if the applicant has reason to believe that a listed species may be present at the project site.¹⁹⁴

Informal Consultation

Informal consultation¹⁹⁵ is an optional but widely practiced preliminary interaction between the acting agency, the applicant for federal action, and the FWS to determine whether the proposed action is likely to jeopardize a listed species or its critical habitat. Under informal consultation, the acting agency requests the FWS¹⁹⁶ to provide a list of listed, proposed,¹⁹⁷ or candidate species¹⁹⁸ present in the action area, and determine whether the area has been listed as designated critical habitat. Like "action," "action area" is broadly defined by the FWS and includes "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action."¹⁹⁹ No further consultation is required if no listed species may be present and no critical habitat is located in the action area. If a protected species of critical habitat "may be present," the acting agency must conduct a biological assessment (BA).²⁰⁰ The BA identifies species "likely to be adversely affected" by the proposed action.²⁰¹ A BA is "the information prepared by or under the direction of the Federal agency concerning listed and proposed species and designated and proposed critical habitat that may be present in the action area and the evaluation potential effects of the action on such species and habitat."²⁰² The agency determines whether the action is "not likely to adversely affect" listed species or critical habitat, or whether the action "may affect" listed species.²⁰³ If the FWS concurs that the action is "not likely to adversely affect" the listed species or critical habitat, consultation ends.

If the FWS finds that the listed species or critical habitat "are likely to be adversely affected" by the action, the requirements of formal consultation are triggered.²⁰⁴ The FWS may suggest modifications to the action that would avoid the likelihood of adverse effects, or formal consultation may follow immediately.²⁰⁵ A BA is required whenever an acting agency proposes a "major construction activity" as defined by NEPA.²⁰⁶

The party seeking action may be required to prepare the draft BA.²⁰⁷ One commentator suggests the following be included in a BA:

• A list of all evidence of endangered, threatened, and other species of special concern that have been observed on the site, based on casual observations, sampling, and survey results.
• Discussion of which sampling methodologies were employed, as well as any variations from the standard methodologies.
• A map identifying the location of all pedestrian transects, trap grids, net arrays, or other sampling plots used to determine the on-site status of listed species.
• The results of all sampling efforts in terms of the number of individuals recorded, and a map showing the locations of all observed individuals or colonies.
• Discussion of what habitat factors influence or contribute to the occurrence of the species on the site for each listed species observed.
• Discussion of what measures will be employed to minimize the proposed project's impact on both the individual species and its habitat for each listed species observed.
• A mitigation plan suggesting ways the species and its habitat will be preserved.²⁰⁸

Formal Consultation

Formal consultation is the process of creating a biological opinion (BO), a compilation of the best scientific data available on how a listed species or critical habitat will be affected by the proposed action. Formal consultation is required when a BA determines that the action "may affect" a listed species or critical habitat. Formal consultation begins with the action agency's written request and concludes with issuance of a BO.²⁰⁹ If the BO concludes that the action will "jeopardize the continued existence" of a listed species (a "Jeopardy BO") or result in destruction or modification to critical habitat, the action is enjoined. The Jeopardy BO must include "reasonable and prudent alternative" courses of action that the agency could take to prevent jeopardy to the species.²¹⁰ More commonly,²¹¹ a BO includes an incidental take statement.²¹² This statement subjects the applicant and the acting agency to terms and conditions designed to reduce the impact of the anticipated take of the species. The taking of species, including habitat modification, pursuant to an incidental take statement is not prohibited under § 9 of the ESA.²¹³

The seemingly straightforward regulations for formal consultation may lead to extended negotiations. While regulations provide for a relatively short period of consultation (90 days), this period is not triggered until the agency and the FWS determine that more information is required to complete the consultation.²¹⁴ Applicants may also consent to time extensions in order to further develop the BO. The reasonable and prudent alternatives suggested by the terms and conditions may sometimes be at odds with the requirement that these alternatives involve only minor changes from the proposed action. Even after the BO is issued, consultation may be reopened in four circumstances:²¹⁵ (1) the amount or extent of taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the BO; or (4) a new species is listed or critical habitat designated that may be affected by the identified action.

Exclusions from Consultation

In recent years, some agency actions have been excluded from ESA consultation requirements. First, certain acting agencies (or "Action Agencies") may take actions without consultation pursuant to the National Fire Plan (NFP) under the Healthy Forest Initiative that the acting agency determines are not likely to adversely affect a listed species or designated critical habitat.²¹⁶ Second, consultation has become optional for some EPA actions under the Federal Insecticide, Fungicide, and Rodenticide Act that are not likely to adversely affect listed species.²¹⁷

Incidental Take Statement

The incidental take statement is the section of the BO of most concern to the applicant. The incidental take statement is issued if the FWS concludes after formal consultation that the proposed action or any²¹⁸ proposed alternative will not lead to jeopardy or adverse modification of critical habitat and that the taking of listed species incidental to the action will not lead to jeopardy or adverse modification of critical habitat.²¹⁹ The statement must specify the impact of the incidental taking,²²⁰ set forth the reasonable and prudent measures that will be implemented, and set forth the terms and conditions necessary...