Endangered Species Act (ESA)

Administered by:

U.S. Fish and Wildlife Service (FWS)

Protected Resources Listed endangered and threatened flora and

fauna

Designated critical habitat Candidate species

– Receive no statutory protection, but are conserved through other programs and voluntary agency actions

Definitions

Endangered Species– Any species in danger of extinction

throughout all or a significant portion of its range

Threatened Species– Any species likely to become endangered

within the foreseeable future throughout all or a significant portion of its range

DefinitionsCandidate Species

Being considered for listing

Critical HabitatSpecific areas occupied by the species, when it is listedContain the physical or biological features essential to the conservation of the species Require special management considerations or protectionFor listed fish, essential fish habitat

Adverse Modification (of critical habitat)Direct or indirect alteration that diminishes the value of critical habitat for both the survival and recovery of a listed species

Definitions Jeopardy

To engage in an action that would be expected, directly or indirectly, to reduce the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species

Take “To harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect or to attempt to engage in any such conduct”

Determinations “No Effect”

– No effect whatsoever– No further consultation required

“(May Affect), Not Likely to Adversely Affect”– Insignificant, discountable or beneficial effects– Requires concurrence from FWS

“(May Affect), Likely to Adversely Affect”– Risk of a “take”– Requires formal consultation with FWS

Section 7 Consultation Process

Applicant / RD obtains a species list

from Services

INFORMAL CONSULTATION

ENDS

Species or Critical Habitat Present:

Applicant evaluates potential effects in ER/EA

No Species Or Critical Habitat – No Effect

Formal Consultation

May Affect, Not Likely to AdverselyAffect

FWSconcur?

YES

May Affect, Likely to Adversely Affect

NO

Formal ConsultationRD initiates

Formal Consultation

RD initiates Formal

Consultation

Information on species and habitat assembled

FWS drafts

Biological Opinion RD reviews

Biological Opinion

90 DAYS

45 DAYS

FWS Issues Final Biological Opinion

Other Important Considerations in ESA S. 7 Consultations

• The next several slides will address key elements and approaches that the Agency needs to keep in mind.

Consultation is agency to agency• Applicants and consultants can assist, e.g., making initial contact with

Services, overseeing or conducting surveys, writing reports, but ultimately these actions must be approved by RD;

• RD is responsible for making determinations of effect and providing them to Services;

• There are other actions during the consultation process where the Agency should be directly involved; these can include determining the need for surveys or other information (costs involved), negotiating measures or actions to minimize effects and gain Service concurrence, explaining or representing RD programs and procedures and the limits of Agency authority.

Agency requirement to make effects determinations and provide to Services

• Based upon review of the information, any study results, and possible recommendations from biological consultants, RD makes determinations and transmits them to Services;

• A designated non-federal representative may provide determinations, but this is uncommon;

• Part of the agency-to-agency responsibility, but also assures Services that determinations reflect the action agency’s views and approval.

Aspects of ‘negotiating’ with Services

• Resolving disagreements or conflicts over potential effects or avoid/minimize measures;

• Inherent tension between Services’ desire (and mission) to protect listed species, and applicant need; RD is somewhat in the middle;

• Could involve analysis or selection of project alternatives;• If certain measures are justified/reasonable, applicant will

bear cost, but remember this added cost could affect ability to re-pay loan.

•

Appropriate role of the applicant/consultant

• Always bear in mind the agency-to-agency requirement; applicant or consultant should not be allowed to, or be viewed as, having taken over the process;

• They are assisting RD in meeting its statutory requirements, however …

• “The ultimate responsibility for compliance with section 7 remains with the Federal agency” (50 CFR 402.09);

• Relying on the applicant’s consultant for biological or engineering (as it may affect project design to avoid /minimize impacts) expertise; work closely with them, but maintain a ‘leadership’ role.

When are formal species surveys necessary, who decides, and on what basis?

• First, assure that all existing and available information has been consulted; in most situations, surveys are not necessary;

• The validity or applicability of existing survey data may be questioned;

• Services staff are the experts, and can recommend surveys and/or monitoring; action agencies have no legal obligation to conduct or pay for these studies, but additional data may be key to resolution, and S. 7(a)(1) may be cited;

• So, the “who decides” is really a joint decision.

How does the gravity of a potential effect influence the consultation?

• The more imperiled the species, the more concerned/stringent the Services will be (generally);

• Can vary even within a general project area, e.g., endangered mussel doing relatively well in one reach of a watershed, but nearly gone in another reach;

• Services may push for a more in-depth analysis of alternatives, or additional measures to avoid adverse effects;

• Carefully consider any requests that may seem excessive or unreasonable.

New or emerging trends in how Services are approaching consultations

• Heightened attention to S. 7(a)(1), which direct agencies to “…utilize their authorities to further the purposes of the Act by carrying out conservation programs for listed species.”;

• Continued reductions in Services staff and resources indirectly places increased burden on agencies and applicants to collect data;

• Use of existing tools (e.g., Section 10 Habitat Conservation Planning) and openness to innovative agreements to give more ‘regulatory certainty’ to project proponents

“How To” Visit Service ES or area office website, or use ECOS on-

line tool (http://ecos.fws.gov/ecos/indexPublic.do); http://ecos.fws.gov/ipac/

Before initiating project Applicant/RD requests T/E, candidate species and critical habitats listing identifying those species that may be present in project area. If FWS indicate none, consultation complete

If species present, RD must determine whether project has no effect, is not likely to adversely affect, or is likely to adversely affect (Biological Assessment, if necessary)

If “no effect” or “not likely to adversely affect”, and FWS concur, consultation complete

If adversely affected, RD must undergo formal consultation with FWS

Reminder of online tools and other resources to assist consultations

• Growing availability, including those of specific ES offices or USFWS Regions;

• Some provide basic decision support and mapping, others have ‘step-by-step’ instructions (Regions 3 and 4), one a consultation slideshow (Region 7);

• Information, Planning and Conservation System (IPAC); http://ecos.fws.gov/ipac/; portions still ‘under construction’;

• Region 3 7(a)(2) Technical Assistance Website: http://www.fws.gov/midwest/endangered/section7/s7process/index.html;

• Not an exhaustive listing; check to see what might be available;• The more detailed information that can be provided up front, the

better.

Wind and USFWS• Section 7 issues growing• Impacts to bats a great concern• Lack of reliable information on bat

populations, migratory/nesting habits, as well as interactions with

turbines• Treatment of small wind project similar

to utility-scale wind makes compliance for small projects very costly, potentially prohibitive

FWS Actions on ESA and Wind:Curtailment of operations during high-risk

periods

• It is thought that bat fatalities might be lowered substantially by reducing the amount of turbine operating hours during low wind. This can be done by increasing the minimum wind speed, the “cut‐in” speed, at which the turbine’s blades begin rotating to produce electricity.

• In Ohio, FWS is negotiating to set cut-in speeds at 6.5 m/s from sunset to sunrise for migratory periods, such as April to September (depending upon species) with at least 1-2 years of post construction monitoring for projects in the 100 to 600 kW range.

Wind: Recommendations• Standardize information submittals:

– Considerations for siting, baseline information to applicants as early as possible;

– Use FWS Final Guidelines and show how they are explicitly addressed in all submittals to USFWS;

– Recommend professional services for applicants: biologists that know bird and bat issues to determine site habitat and potential ESA species

Example Handout Issues• Contact USFWS to discuss potential

concerns under the ESA/MBTA at your site;• Hire a qualified wildlife biologist to conduct

a pre-application study based upon any USFWS recommendations.

• Sites with the following concerns are unlikely to be approved or might require additional resources and time for resolution:

Example Handout Issues (cont.)• Known bird or bat flyways/migration ways;• Critical habitat of wildlife or plant species

protected under the ESA;• Birds or bats hibernation, breeding, maternity

colonies or high feeding areas;• Fragmentation of large, continuous tracts of

wildlife habitat;• More than minimal roads, fences, or other

infrastructure• In States with Indiana Bat populations, distance

of < 1000’ from mature hardwood areas

Resources• A fact sheet on Wind Turbine interactions with bird and bats is online

at: http://www.nationalwind.org/publications/wildlifewind.aspx

• USFWS Wind Turbine Guidelines:

http://www.fws.gov/windenergy/docs/WEG_final.pdf

• The State of Ohio has a generalized map for siting wind turbines in terms of risks to wildlife at: http://www.dnr.state.oh.us/Home/wild_resourcessubhomepage/ResearchandSurveys/WildlifeWind/tabid/21467/Default.aspx

• Providing local USFWS offices with the GPS coordinates for a project enables them to determine distance to important resources, such as hibernacula for Indiana bats

Questions?

Email or call with any comments or questions on this webinar toJuliet.Bochicchio@wdc.usda.gov or 202-205-8242