Quantifying, monitoring, and tracking "take" under the Endangered Species Act: the promise of a more informed approach to consultation.

• Author: Totoiu, Jason

1. INTRODUCTION II. THE ENDANGERED SPECIES ACT III. MEASURING TAKE IV. MONITORING TAKE V. TRACKING CUMULATIVE TAKE VI. THE SERVICES SHOULD TAKE A COMPREHENSIVE AND INTEGRATED APPROACH TO MONITORING AND TRACKING TAKE A. The Services Should Make Tracking of Monitoring Reports and Cumulative Take a Priority in All Species Recovery Plans B. Action Agencies Should Make the Tracking of Monitoring Reports and Cumulative Take Resulting from Their Actions Part of Their Section 7 Conservation Programs C. The Services Should Incorporate Cumulative Take Information from Section 10 Incidental Take Permits into Their National Cumulative Take Tracking Program D. The Services Should Utilize Section 6 to Enlist the Assistance of States to Track Cumulative Take VII. CONCLUSION I. INTRODUCTION

   The Endangered Species Act (ESA or Act) (1) prohibits the "take" of endangered and threatened species. Take is defined broadly to include the killing, harming, and harassment of listed species. (2) Section 7 of the Act requires federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) (collectively Services) to determine the effects of their actions on endangered species and to ensure that those actions do not jeopardize listed species or adversely modify their critical habitat. (3) As part of this consultation process, the Services prepare a biological opinion to evaluate the effects of such actions. (4) If an action does not jeopardize a listed species, the biological opinion may provide an incidental take statement (ITS) allowing for the take of listed species so long as it is incidental to and not the purpose of the activity. (5)

   Finding that an ITS is more than just a permission slip to take listed species, recently, courts are requiring the Services to specify the level of incidental take anticipated by the action sufficiently enough so that it can provide an adequate "trigger" for the re-initiation of consultation if the original take level specified in the biological opinion is exceeded. (6) Without such a trigger, the action tons the risk of potentially jeopardizing the species if no subsequent consultation is ever required to evaluate the additional take of listed species. To this end, courts have required the Services to provide a numeric measure of take unless doing so is impractical, in which case the Services may specify the extent of take through an ecological surrogate that is linked to the take of the species. (7) An ecological surrogate is an expression of take in terms of anticipated losses or changes in species habitat. (8)

   Measuring the amount of incidental take through numeric values is the preferred approach for several reasons. It provides the clearest assessment of the number of members of a species that may be taken by a particular project without jeopardizing the species and it provides a clearly defined trigger to reinitiate consultation if and when the anticipated level of take is exceeded. (9) Further, by requiring the Services to utilize numeric take measures, courts provide action agencies with the impetus and incentive to abide by these clearly defined measures of take and to monitor the effects of their actions to ensure that the impacts of such actions are not resulting in greater harm to the species than that which is permitted by the biological opinion. Numeric measures also assist the Services in developing an ongoing tally of the number of species lost due to past federal actions. This assessment of "cumulative take" enables the Services to adjust the environmental baseline accordingly and evaluate the effects of future actions in subsequent biological opinions and determine the acceptable level of take based on this information. It also assists the Services in evaluating the overall recovery efforts of a particular species. Thus, with the quantification of incidental take comes increased agency awareness and accountability in the decision-making process.

   Despite the requirement that the Services provide a numeric measure of take in their biological opinions unless otherwise impractical, the Government Accountability Office (GAO) issued a report in 2009 finding that FWS lacks a systematic method for tracking the monitoring reports it requires in biological opinions and the agency still has no means of tracking the cumulative take of most species. (10) As a result, the report warned that the lack of a systematic means to track take results in a knowledge gap concerning the status of listed species and exposes FWS to unobserved declines in species, not to mention, additional litigation. (11)

   This Article. explores the recent court rulings concerning how the Services specify the amount of take in their ITSs and the importance of these court rulings in the context of monitoring take and evaluating cumulative take. This Article argues that consistent with the findings of the 2009 GAO Report, both a comprehensive system for monitoring take and a system for tracking cumulative take must be implemented by the Services.

   This Article further argues that the tracking of monitoring reports and the tracking of cumulative take should not be discrete tasks reserved for the Services. By utilizing several different provisions of the Act, the Services can harness federal, state, and private entities to assist the Services in achieving a comprehensive approach to monitoring and tracking take. An integrated, interagency approach to monitoring and tracking cumulative take may facilitate the development of tracking programs and yield a more informed, proactive approach to evaluating the cumulative effects of agency actions and planning for future take. As this Article will explain, a systematic, integrated tracking program will likely reveal which particular agency actions are having the greatest impact on listed species and provide the necessary data for agencies to effectively plan for and minimize future species impacts in a particular geographic area and beyond. Lastly, adopting an interagency approach that utilizes all relevant provisions of the Act to achieve these goals will not only allow the Services to utilize the data gathered from monitoring and tracking programs to make better section 7 consultation decisions but also better inform the Services' administration of the Act as a whole.

2. THE ENDANGERED SPECIES ACT

   The purpose of the Endangered Species Act is in part "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for conservation of such endangered and threatened species." (12) The Act contains several provisions that set forth a process toward accomplishing the Act's mission of species conservation. (13)

   Section 4 of the Act provides for the listing of species as "endangered" or "threatened" (14) and requires the Services to develop and implement recovery plans for each listed species. (15) Each recovery plan must contain a description of site-specific management actions for the conservation of the species, objective measurable criteria that, when met, would lead to the delisting of the species, and estimates of the time and costs required to carry out those measures necessary to achieve species recovery. (16)

   Under section 9 of the Act, the take of an endangered species is prohibited. (17) The Act defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." (18) "Harm" includes "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." (19)

   Section 7 of the Act requires federal agencies to prevent violations of section 9. (20) When any federal agency authorizes, funds, or carries out any action that may affect a listed species, the "action agency" must consult with either FWS or NMFS (21) to ensure that the action will not likely "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of that species's critical habitat. (22) This consultation process usually begins informally as the action agency and either FWS or NMFS evaluate the potential effects of the action on listed species and determine whether any listed species is "likely to be adversely affected by the action." (23) If the action is not likely to adversely affect a listed species and the Services concur, then the consultation process is over. (24)

   If, however, it is determined that the action is likely to adversely affect a listed species, then the action agency must initiate formal consultation with FWS or NMFS. (25) This formal consultation process culminates with the Services issuing a biological opinion. The biological opinion starts with an assessment of the environmental baseline. (26) The environmental baseline includes

   the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. (27) The action area is defined as "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action." (28) Once the baseline is established, the Services evaluate the effects and cumulative effects the action will have on the species. (29) The effects of the action include "the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline." (30) "Cumulative effects are those...