ENDANGERED SPECIES
REFERENCE
ENVIRONMENTAL PROTECTION AGENCY
1997
-------
Faculty Address and Phone List
Rob Fischman
Associate Professor
Indiana University of Law
3rd and Indiana
Bloomington, IN 47405
Phone: 812-855-4565
fax: 812-855-0555
e-mail: rfischma@indiana.edu
Tom Marshall
Attorney
Office of General Counsel, EPA
401 M Street, SW
Mail Code 2378
Washington, D.C. 20460
phone: 202-260-5326
fax: 202-260-8393
Ken Rosenbaum
Environmental Policy Consultant
c/o Environmental Law Institute
1616 P Street, NW
Suite 200
Washington, D.C. 20036
phone: 202-939-3867
fax: 202-328-5002
e-mail: ' kenro@igc.apc.org
Jim Serfis
Office of Federal Activities, EPA
401 M Street, SW
Mail code 2252A
Washington, D.C. 20460
phone: 202-564-7161
fax: 202-564-0072
-------
"Protecting Endangered Species"
August 6 - 7, 19 97
Philadelphia, Pennsylvania
FACULTY BIOGRAPHIES
Robert Fischman is an associate professor at Indiana
University School of Law - Bloomington. He teaches environmental
law, administrative law, public natural resources law, water law,
and an advanced environmental seminar. Before joining the
Indiana faculty, he taught at the University of Wyoming College
of Law, and served as Natural Resources Program Director and
Staff Attorney at the Environmental Law Institute in Washington,
DC. He has written on forest management, biological diversity,
property interests, global climate change, endangered species,
administrative appeals, and environmental impact analysis.
Professor Fischman holds J.D. and M.S. degrees from the
University of Michigan and an A.B. from Princeton.
Tom Marshall is an attorney in the U.S. Environmental
Protection Agency Office of General Counsel. He is responsible
for coordinating Endangered Species Act and ecosystem and
community-based environmental protection counseling.
Ken Rosenbaum is an independent environmental policy
consultant from Washington, DC. Trained as an attorney and a
forester, he has a broad background in both pollution control and
natural resource laws. His recent projects have included
studying the impacts of laws and legal institutions on
deforestation in Mexico, identifying environmental policy
concerns at overseas U.S. Army bases, and ELI1s analysis of EPA's
powers to protect threatened and endangered species. Mr.
Rosenbaum is an adjunct member of the Environmental Science and
Engineering faculty for the Oregon Graduate Institute. Mr.
Rosenbaum spent six years as counsel and legislative director to
Congressman Ron Wyden of Oregon. He worked on the 1986 Superfund
amendments and the 1990 Clean Air Act amendments. Mr. Rosenbaum
has a J.D. from the Northwestern School of Law at Lewis and
Clark, and an M.F.S. and B.S. from Yale.
Jim Serfis is a biologist with the Office of Federal
Activities at the U.S. Environmental Protection Agency. His
areas of responsibilities include endangered species, ecosystem
management, and environmental impact analysis. He is responsible
for overseeing the Agency's Endangered Species Protection
Program.
-------
Why Protect Species and Habitats
Talk for EPA ESA Training Course
Ken Rosenbaum
Why Conserve Species?
It's good for us. Humans may directly benefit.
Species have economic value:
Food comes from other species. Humans get most of their calories
from only a handful of plants (e.g., wheat, rice, corn, etc.) and animals
(Cattle, pigs, chickens, etc.) Other species may be potential food
sources or hold useful genes (e.g., for disease resistance or
productivity) that can be transferred to food sources.
Materials come from species: fibers, oils, woods, rubber, dyes, etc.
Medicines come from species. A large percentage of the medicines we
use come from or were discovered as chemicals in other living things.
A recent example: taxol for fighting ovarian cancer from the Pacific
Yew tree. Most species have not been screened for their medicinal
value.
Species are crucial to the functioning of ecosystems, and ecosystems provide
valuable services to humans.
Ecosystems provide oxygen and absorb carbon dioxide; they absorb
wastes in water and air and recycle nutrients; they create
microclimates; they limit population sizes of pest species, etc.
As Aldo Leopold noted, we don't understand the system well enough -
- either the value of individual species (as foods, medicines, etc.) or the
way things interact - to be confident in discarding parts. The first
rule of the intelligent tinkerer is never to throw away any of the parts.
Species have aesthetic worth: some see life as worth saving for the beauty and
knowledge embodied in it.
-1-
-------
It's good in itself. Even if humans don't benefit directly, conserving species is the
right thing to do.
Some see the issue in moral terms.
Some believe that species have a right to exist, or at least that humans
have no right to cause extinction.
Some believe that we owe a duty to future generations to perpetuate
the natural world.
As Mark Sagoff noted, people could be quite happy in a world
without eagles or grizzly bears or Karner Blue butterflies, but
is that really the world we want our grandchildren to grow up
in?
Respect for the Creator: Guided by personal beliefs, some see the issue in
terms of showing respect for the Creator by conserving creation.
Respect for the Law: Guided by agency or DOJ counsel, many find sulncient
justification in the law as Congress has written it.
How do actions of EPA regions affect species? (You can't protect them if you don't
understand what you are doing to them.)
Physical Impacts
Direct killing of individuals
During construction of authorized projects
During normal operation (aquatic organism in water intakes; birds &
power lines, etc.)
Foreseeable accidents (marine organisms affected by oil spills, small
mammals becoming road kills, etc.)
Direct occupation of habitat (e.g., Mt. Graham red squirrel case)
Neighboring effects
Fragmentation (e.g., the spotted owl)
Incidental physical pollution (noise; heat; soil erosion/sedimentation,
-2-
-------
etc. Sedimentation affects salmon spawning areas and also freshwater
mussel habitat.)
Climate change
Chemical Impacts
Toxic" substances
Direct insults: toxins, carcinogens, teratogens, hormone analogues, etc.
Bioaccumulation (e.g., peregrine falcon)
Indirect insults: ground-level ozone creation; acid deposition;
stratospheric ozone depletion
Nutrient imbalances (introducing too much of a nutrient into a system can
have biotic consequences, e.g., when phosphates cause algal blooms in
freshwater lakes or rivers.)
Biotic hanky-panky
Promotion of predators, parasites, and disease organisms (e.g., dumpsites
attracting and feeding predators like ravens or gulls; forest openings attracting
parasites like cowbirds)
Promotion of competitors (some listed plants near LA. are less able to
tolerate air pollution than some of the plants they compete with for water,
nutrients, and light.)
Destruction of food source (e.g., reduction of prey species)
Promoting or harming other species that affect other species, such as:
symbionts (mycorrhiza (beneficial fungi that grow on plant roots),
pollinators (bees, butterflies, birds, bats), etc.)
disease vectors (disease-carrying mosquitos breeding in water caught
in tire piles; disease-carrying fleas riding on rats attracted to dumps)
keystone species (species whose presence allows other species to live
in the habitat, e.g., alligators construct wallows that help other species
survive drought; starfish create openings in mussel beds that allow
other species to colonize the rocks)
-3-
-------
the tops of trophic cascades (where a predator of a predator affects the
ultimate prey, as where insect-eating birds protect trees by controlling
tree-eating insects)
What EPA needs to help conserve species
Commitment: a sense that protecting biodiversity is one part of the agency mission
that everyone can hel£ fulfill.
Understanding: of the value of biodiversity, of how to safeguard it, and of the
agency's obligations and opportunities to conserve.
Need to have everyone in the agency understand basic obligations and science
well enough to spot the issues.
Need to have some in the agency well-versed in the legal and scientific issues
and available to help when the issues arise.
Cooperation: with experts and other colleagues in the listing agencies; with the
general public.
The challenge: to take federal environmental protection from its narrow focus on direct risks
to humans and transform it to safeguard the broader integrity of life.
-4-
-------
An Endangered Species Act (ESA) Primer
Part I
Robert L. Fischman
Indiana University School of Law
I. Introduction to the Structure of the Act and Its Legislative History
A. Purpose of the ESA - "[P]rovide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved." §2(b)
1. Conservation means the use of all methods and procedures necessary to
bring a listed species to the point of recovery, where the protections of
the ESA are no longer needed. §3(3). As of January 1995, 8 species
have been recovered and delisted.
B. Overview of the ESA
1. Pit-bull or Pussy-cat?
a. Pit-bull Hypothesis - prohibitive policy
(a) Statutory structure
i) substantive standards (No harm; No
jeopardy; Best scientific and commercial
data)
ii) procedural safeguards (Biol, assessments;
Biol, opinions)
(b) Court interpretation
i) very strict compliance (T. V.A. v. Hill:
language of §7 "admits of no exception")
b. Pussy-cat Hypothesis - modification rather than prohibition
(a) From 1987 -1992 (WWF study):
i) 97% of all consultations (over 94,000)
were resolved informally ("no effect"
found)
ii) Of formal consultations (2719), 92%
resulted in "no jeopardy" B.O.s
iii) Of the 352 jeopardy opinions, only 54
projects were ultimately blocked, 11
projects putting aside the BLM timber
sales.
2. The ESA is a collection of programs
a. International treaty (CITES) - §8A
b. FWS authority to designate species offered protection - §4
c. FWS program to conserve (recover) designated species - §4
1
-------
d. Procedures and standards for federal agencies - §7
e. Widely applicable prohibitions - §9 & §10
f. Federalism - §6
3. Key agencies
a. Interior Dept.: U.S. Fish and Wildlife Service (FWS)
b. Commerce Dept.: National Marine Fisheries Service (NMFS) -
Responsible for most marine mammals and anadromous fish
4. ESA mandates for the EPA - The four "c"s [seas] [seasons]
a. conserve
b. confer
c. consult
d. can't take
Legislative History
1. Early roots
a. state laws to conserve game ~ regulation of takes
b. Lacey Act of 1900 — first federal regulation of wildlife.
c. Migratory Bird Treaty Act of 1918 -- first to protect certain,
listed species from private, non-commercial takes.
(a) Upheld in Missouri v. Holland (1920)
d. Bald [and Golden in 1962] Eagle Protection Act of 1940
2. Predecessors of the ESA
a. 1964 DOI Comm. On Rare and Endangered Wildlife Species
published the "Red book" - first comprehensive list of f&w
considered threatened with extinction
b. 1966 Endangered Species Preservation Act - Broad Policy:
Federal agencies should preserve habitats for vertebrates found
by DOI to be in danger of extinction to the extent practicable
and consistent with primary purpose.
c. 1969 Endangered Species Conservation Act - Extended
protection to invertebrates. Directed DOI to expand list
worldwide. Called for international meeting.
3. The ESA and its major amendments
a. 1973 - International meeting approves and U.S. signs CITES.
Enactment of modern ESA: Established listing procedures,
mandates, and taking prohibition.
b. 1978 - Defined and mandated designation of critical habitat;
required preparation of recovery plans; established exemption
process ("God Squad").
-------
1982 - Loosened critical habitat designation requirement;
clarified basis for listing decisions; required prompt (90 day)
response to petitions; established incidental take statements and
permits.
1988 - Required biennial reports on recovery efforts; set detailed
requirements for recovery plans; required formal monitoring of
candidate species.
1995? - Moratorium on final listings? Senator Gorton's bill
(S.768)?
-------
An Endangered Species Act (ESA) Primer
Part II
Robert L. Fischman
Indiana University School of Law
II. Section 4: Listing, Critical Habitat, Recovery Plans
A. Listing
1. What is a species?
a. subspecies of fish, wildlife, or plants (e.g. northern spotted owl)
b. distinct population segment of a vertebrate which interbreeds
when mature (e.g. grizzly bear)
(a) species may be abundant elsewhere in its range:
[why Rep. Helen Chenoweth can buy salmon in
Albertson's]
2. Hierarchy of protection [all numbers reflect June 1995 information] ~
More on this Wednesday afternoon
a. Listed species (1512 listed species worldwide; 956 in the U.S.)
(a) endangered (U.S. only: 325 animals + 434 plants
= 759): Any species in danger of extinction
throughout all or a significant portion of its range
(except certain insect pests).
(b) threatened (U.S. only: 111 animals + 92 plants
= 203): Any species likely to become endangered
within the foreseeable future throughout all or a
significant portion of its range.
b. proposed (105 species)
c. candidate
(a) Cat. 1: listing warranted but precluded (293
species) "The Bermuda Triangle" of listing.
i) substantia] information exists to support
listing proposal but other proposals have
higher priority
ii) listing priorities include (FWS Guidance)
a) magnitude of threat
b) immediacy of threat
c) species taxonomy (distinctive or
isolated gene pools are given high
priority
iii) listing priorities exclude importance of
species to ecosystem
1
-------
(b) Cat. 2: information shows that listing is possibly
appropriate but no conclusive evidence (1700
plants as of 9/93 +1919 animals as of 11/94 =
3619 species)
i) more information is needed
(c) Cat. 3: no longer under active consideration
i) 3A - believed to be extinct
ii) 3B - no longer considered a taxum fitting
ESA species definition
iii) 3C - species found to be more abundant or
not subject to threats anymore
3. Listing process: notice & comment (informal) rulemaking
a. Listing agency must consult with "affected Federal agencies"
when considering any revision of the lists. 50 C.F.R. 424.13.
More on this tomorrow afternoon.
b. listing must be based "solely" [1982 amendments] on "the best
scientific and commercial data available." §4(b)(l)
(a) Northern Spotted Owl v. Hodel (W.D. Wash
1988) - FWS decision not to list owl was arbitrary
and capricious
(b) species may be listed because of inadequate
existing regulatory mechanisms [§4(a)(l)]
(c) species may be listed because it so closely
resembles in appearance a listed species that
enforcement personnel would have substantial
difficultly differentiating between the two. §4(e).
c. listing may be initiated by agency (voluntarily or in compliance
with a consent decree) or through petition [§4(b)(3)]
(a) agency must determine whether petition to list or
delist may be warranted within 90 days
(b) within 12 months, agency must determine whether
petitioned action is:
i) warranted
ii) not warranted
iii) warranted but precluded (cat. 1 candidate)
- annual reexamination
(c) warranted petitions and agency proposals are
published as proposed regulations in Federal
Register [§4(b)(3), (5)]
i) These proposed species trigger §7 duty to
confer
(d) Agency must take make a final decision on listing
or announce extension within a year after making
a proposal [§4(b)(5)]
2
-------
d. Emergency Listings §4(b)(7)
(a) If an emergency "poses a significant risk to the
well-being of any species," the agency may
dispense with most procedural listing
requirements in the ESA and APA. Emergency
listings are effective immediately for as long as
240 days.
e. Review
(a) List is reviewed every 5 years §4(c)(2).
B. Critical Habitat
1. What is it? §3(5)(A)
a. Range occupied by the species at the time of listing where
features occur that are essential to recovery and which may
require special management consideration or protection, AND
b. Areas outside the range occupied by the species at the time of
listing which are essential for the conservation of the species.
2. What protection does it get?
a. Critical Habitat is relevant only in §7 determinations of adverse
modification.
3. Designation process
a. Designation based on the "best scientific data available" AND
consideration of "the economic impact, and any other relevant
impact" of designation. §4(b)(2).
(a) any area may be excluded from designation based
on a cost-benefit balancing unless the exclusion
will result in extinction
b. To the "maximum extent prudent and determinable,"
designation of critical habitat shall occur concurrently with
listing. §4(a)(3).
(a) UNLESS, it is essential to recovery that listing be
promptly published OR, if critical habitat is not
determinable, designation may be delayed one
year. After a year, final regulation must be
published based on data available at the time
"designating, to the maximum extent prudent,"
critical habitat. §4(b)(6)(C).
(b) Northern Spotted Owl v. Lujan (W.D. Wash.
1991) - FWS was not entitled to the one year
extension for designating critical habitat merely
by invoking indeterminacy. Critical habitat must
be designated concurrently with listing unless
FWS explains why critical habitat is not
3
-------
determinable, what effort was made to determine
the habitat, and what additional information is
needed.
i) See also 50 C.F.R. 424.12(a)(2) for
situations where critical habitat will be
found not determinable.
(c) Designation of critical habitat is not prudent
when: 50 C.F.R. 424.12(a)(1)
i) the species is threatened by taking or other
human activity, and identification of
critical habitat can be expected to increase
this threat; or
ii) such designation would not be beneficial to
the species.
c. Critical habitat designation may be initiated or modified by
petition. §4(b)(3)(D).
(a) Same deadlines for response as listing petitions
C. Recovery Plans - §4(f)
1. Must be developed by FWS/NMFS unless a recovery plan would not
promote conservation of the species. §4(f)(l).
a. As of June 1995, there are 418 approved recovery plans. Some
cover more than one species. A few species have separate
plans covering different parts of their ranges.
2. Plans describe site-specific management actions; set out objective,
measurable criteria for monitoring progress; and estimate the time and
cost required to achieve recovery. §4(f)(l).
a. 1990 GAO report estimated total cost for recovery of listed
species to be $4.6 billion.
3. Recovery teams:
a. responsible for developing and implementing recovery plans
may and often do include members from other agencies and
institutions. We will discuss this further tomorrow afternoon.
b. These teams are not subject to the Federal Advisory Committee
Act. §4(f)(2).
4. Public notice, review, and comment are required before final approval
of a plan. §4(f)(4). [1988 Amendments]
5. Monitoring: FWS/NMFS report on status of recovery planning to
Congress every two years. §4(f)(3). [also 1988 Amendments]
6. Recent DOI initiative to "minimize the social and economic impacts" of
recovery planning and implementation.
4
-------
ESA Primer
Part III
Ken Rosenbaum
III. Section 7: Conservation, Consultation, Conference, &
Exemptions.
A. Overview: §7 deals with the impact of federal actions —
including federally authorized actions — on proposed and
listed species and critical habitat.
1. It makes protection of listed species part of the
mission of every federal agency.
2. It prohibits agencies from taking actions that may
jeopardize listed species or harm critical habitat.
3. It imposes procedures: it requires agencies to
confer or consult with FWS or NMFS about modifying
projects to reduce impacts on proposed or listed
species.
4. It provides for exemptions from the restrictions of
the Act: incidental take statements for projects
with minor impacts and Endangered Species Committee
exemptions for projects that may cause extinction.
B. Conservation: §7(a)(l).
1. "All ... Federal agencies shall, ... with the
assistance of the Secretary [of the Interior or
Commerce], utilize their authorities in furtherance
of the purposes of this chapter."
2. This language gives EPA authority, arguably a duty,
to take affirmative discretionary actions to
protect species, e.g., in setting research agendas,
implementation priorities, permit conditions,
enforcement strategies, penalties for violations,
etc.
C. Consultation: §7(a)(2).
1. Consultation is a review of a proposed action by
the acting agency (EPA), the listing agency (FWS or
NMFS), and other persons directly involved (permit
applicants, loan recipients, etc.).
a. The object is to ensure that the action will
not jeopardize the continued existence of a
listed species or adversely modify critical
habitat.
-1-
-------
b. "Actions" include things an agency authorizes
(e.g., things requiring an agency permit) or
funds (e.g., things receiving agency loans or
grants) as well as projects that the agency
carries out itself.
c. Ideally, consultation will identify how to
modify an action so that it does not affect
listed species or critical habitat.
d. For actions not jeopardizing listed species or
adversely modifying critical habitat, FWS or
NMFS may issue an incidental take statement,
granting permission for minor takings of
listed species.
e. For other actions, FWS or NMFS will issue a
jeopardy opinion, certifying the action as
violating the ESA.
2. Most consultations stay informal.
a. Any discussion with FWS or NMFS of a proposed
action that may affect listed species is part
of informal consultation.
b. Informal consultations should be standard
procedure. Early informal discussions can
identify problems when they are easiest to
fix.
c. If informal consultations lead to changes in
the action avoiding all impacts to listed
species and critical habitat, formal
consultation is unnecessary. (Be sure to ask
FWS or NMFS for written confirmation that no
consultation is necessary.)
3. Consultation can be a formal process.
a. The first formal step is to write to FWS or
NMFS requesting a list (or concurrence with
EPA's list) of what species or critical
habitats may be present at a project site.
i. This step is required for "major
construction activities," and optional
for other actions. §7(c)(l).
ii. If FWS or NMFS says no species or
critical habitat are present, no further
consultation is necessary.
-2-
-------
b. Otherwise, next prepare and submit a
biological assessment (BA) of whether the
species is likely to be affected by the
proposed action.
i. This step is also required for "major
construction activities" and optional for
others. §7(c)(1).
ii. EPA may not enter into any contracts for
construction until a BA is completed.
§7(c) (1) • See also the bar on
irreversible or irretrievable commitments
of resources, §7(d), discussed below.
iii. If based on the BA, EPA concludes that no
species or critical habitat are likely to
be adversely affected by the action, it
may end consultation.
iv. Caution: if the FWS or NMFS disagree with
EPA's conclusion, do not dismiss the
objection lightly. Unless it proceeds
with formal consultation, EPA will have
no protection from ESA liability should
the action take or jeopardize a listed
species or harm critical habitat.
c. Less formal alternative if not a major
construction activity: If it appears the
action may adversely affect species or
habitat, submit a written request for
consultation.
d. Next, FWS or NMFS will produce a biological
opinion, perhaps with an incidental take
statement. These may bind EPA:
i. EPA cannot take an action that will
involve jeopardy or adverse modification
of critical habitat.
ii. If FWS or NMFS specifies "reasonable and
prudent alternatives" to avoid jeopardy,
EPA must ordinarily follow these. EPA
claims the authority to follow its own
alternatives if they would also avoid
jeopardy or habitat modification.
iii. For a "no jeopardy" project, FWS or NMFS
will issue an incidental take statement.
This will permit incidental "take" of
-3-
-------
species associated with the action and
will include "reasonable and prudent
measures" as required terms or conditions
of the take.
iv. FWS or NMFS may also set out non-binding
conservation recommendations.
4. Some other routes to and through consultation:
a. A prospective permit applicant can initiate
"early consultation," a formal evaluation of
an action before a permit is sought. §7(a)(3).
The product will be a draft biological
opinion, which the listing agency can later
adopt when the applicant submits a permit
application.
b. FWS or NMFS may seek to initiate consultation
if the agency neglects its duty to consult.
They cannot force consultation, but their
requests should not be denied lightly.
c. In emergencies, agencies must consult in an
expedited fashion before acting and must re-
examine the action afterwards.
d. See also "formal conference," discussed below.
5. An agency may have to consult more than once on a
action if it retains discretionary control over the
action and conditions change, i.e.:
a. The incidental take is unexpectedly high,
b. New adverse effects come to light,
c. The action changes in significant,
unanticipated ways, or
d. New species or habitat affected by the action
are listed.
6. A couple of consultation rules to live by:
a. During consultation, neither the agency nor
the applicant may make any irreversible or
irretrievable commitments of resources that
might foreclose alternatives to the proposed
action. §7(d).
-4-
-------
b. During consultation, agencies must use the
best scientific and commercial data available
to evaluate the status of the species and the
impacts of the proposed action. §7(a)(2) &
§7(c) (1) .
D. Conference: a less involved process than consultation,
for actions affecting proposed species. §7(a)(4).
1. Conference is a mandatory but often informal
process. The ESA requires conference with the
listing agency (FWS or NMFS) when an action is
likely to jeopardize the continued existence of a
species proposed for listing or likely to destroy
or adversely modify proposed critical habitat.
17(a)(4).
2. Conference does not entail a bar on commitment of
resources.
3. The result of conference is usually a set of non-
binding advisory recommendations. FWS or NMFS will
not grant permission in conference to take listed
species.
4. If a project looks like it will unavoidably take
species or harm habitat likely to be listed, the
participants can choose to conduct the conference
formally, like a consultation, producing a
preliminary biological opinion and incidental take
statement. After the species is listed, a formal
consultation can promptly adopt these preliminary
documents, giving them effect.
5. If an agency proceeds with a project jeopardizing a
proposed species over FWS or NMFS objections, the
listing agency might resort to an emergency listing
under §4(b)(7).
E. Exemptions: §7(e)-(p)
1. The ESA provides for two kinds of exemptions from
its prohibition on taking listed species or
destroying or adversely modifying critical habitat.
§7(o).
a. By far the most common is the incidental take
statement, a product of the consultation
process, discussed above. These are for
actions that will not jeopardize the continued
existence of the species or adversely modify
critical habitat.
-5-
-------
b. For actions that may jeopardize the continued
existence of the species or adversely modify
critical habitat, agencies, applicants, or
state governors may seek an exemption from the
Endangered Species Committee. These are rare.
i. The Endangered Species Committee includes
six cabinet or sub-cabinet level members,
including the EPA Administrator, plus a
representative from the affected state.
ii. Only three requests have ever made it to
the Committee (Tellico Dam, Grayrocks
Dam, Northern Spotted Owl).
2. Steps toward applying for an Endangered Species
Committee exemption:
a. Be sure to do a biological assessment. Though
these are only mandatory for major
construction activities, without one the
Committee will not grant a "permanent"
exemption.
b. Complete formal consultation. Committee
exemptions are only appropriate when
consultation results in a jeopardy opinion,
with no reasonable and prudent alternatives to
the proposed action, despite a good faith
effort to find them.
c. File an exemption application with appropriate
Secretary within 90 days of consultation or,
if permit or other similar EPA action is
involved, within 90 days of formal denial of
the permit. See 50 CFR §451.02(e) for
contents of application.
d. Make no irreversible or irretrievable
commitments of resources foreclosing
alternatives to your project — or the
Committee cannot grant an exemption.
e. Check with counsel: you may need an
environmental impact statement if you have not
already prepared one. See ESA §7(k).
3. Highlights of the application review process.
a. The appropriate Secretary will conduct an
initial review of the application to verify
eligibility for an exemption.
-6-
-------
b. The Secretary of State may veto an application
if the proposed action would violate U.S.
treaty or other international obligations.
c. The appropriate Secretary will hold a hearing
on the application before an ALJ and write a
report based on the record.
4. The Committee's decision.
a. The Committee considers the Secretary's report
and may invite further public written or oral
comments.
b. The Committee will grant an exemption if:
i. There are no reasonable and prudent
alternatives to the proposed action;
ii. Benefits outweigh benefits of alternative
actions that would conserve the species,
and the action is in the public interest;
iii. The action is of regional or national
significance; and
iv. No one has jumped the gun with
irreversible or irretrievable commitments
of resources.
c. The Secretary of Defense can compel the
Committee to grant exemptions for national
security reasons.
d. The Committee can establish reasonable
mitigation and enhancement measures as part of
an exemption.
-7-
-------
An Endangered Species Act (ESA) Primer
Part IV
Robert L. Fischman
Indiana University School of Law
Section 9: Prohibited Acts
A. General prohibitions for all endangered species
1. Import or export
2. Deliver, receive, carry transport, or ship in interstate or foreign
commerce in the course of a commercial activity
3. Sell or offer for sale in interstate or foreign commerce
4. Violate any regulation pertaining to the species
B. Additional prohibitions for endangered animals only
1. Take - (More on this prohibition below)
2. Possess, sell, deliver, carry, transport, or ship
3. Illustration for endangered whooping crane from 50 C.F.R. 17.21(d)
a. A person captures a whooping crane in Texas and gives it to a
second person, who puts it in a closed van and drives thirty
miles, to another location in Texas. The second person then
gives the whooping crane to a third person, who is apprehended
with the bird in his possession. All three have violated the
law-the first by illegally taking the whooping crane; the second
by transporting an illegally taken whooping crane; and the third
by possessing an illegally taken whooping crane.
C. Additional prohibitions for endangered plants only
1. In areas under Federal jurisdiction:
a. Remove and reduce to possession, or
b. Maliciously damage or destroy
2. In other areas:
a. Remove, cut, dig up or damage or destroy in knowing violation
of any law or regulation of any State or in the course of any
violation of a State criminal trespass law.
D. Prohibitions for threatened species -
1. Violate any regulation pertaining to the species. §9(a).
a. FWS/NMFS shall issue regulations "necessary and advisable" to
conserve threatened species. §4(d).
(1) Animals: Blanket rule extends coverage of all
prohibitions applicable to endangered animals to
threatened animals unless the regulation for the
threatened species contains a special rule. SO C.F.R.
17.31.
1
-------
(2) Plants: Blanket rule extends coverage of all prohibitions
applicable to endangered plants to threatened plants (with
a minor exception for cultivated seeds) unless the
regulation for the threatened species contains a special
rule. 50 C.F.R. 17.71.
(3) "Special rules" under §4(d) are becoming more important
with DOI's initiative to implement the ESA more flexibly
(a) E.g. California gnatcatcher rule supporting the
California Natural Community Conservation
Planning (NCCP) initiative.
E. Takings
1. Regulated takings (e.g. hunting and trapping) may be permitted "in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved." §3(3).
a. Such circumstances are rare and courts carefully scrutinize
justifications for regulated takings. See, e.g., Sierra Club v.
Clark (8th Cir. 1985) (wolf trapping).
2. "The term "take" means to .harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct." §3(19).
3. FWS Regulation - 50 C.F.R. §7.3 defines "harm" to mean: "an act
which actually kills or injures wildlife. Such act may include
significant habitat modification or degradation where it actually kills or
injures wildlife bv significantly impairing essential behavioral patterns.
including breeding, feeding or sheltering." [emphasis added]
4. Palila v. Hawaii Dep't of Land & Natural Resources (9th Cir. 1988):
Upheld FWS regulation; management of mouflon sheep will ultimately
prevent regeneration of plants upon which endangered palila depends;
therefore a taking.
5. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (S.
Ct. 1995): Upheld (6-3) FWS regulation as authorized by the ESA.
a. Stevens' majority opinion: Significant habitat modification is
an indirect form of harm. Applying the Chevron test, this is a
permissible interpretation of the ESA. Regulatory definition is
supported by:
(1) ordinary understanding of the term "harm"
(2) broad purpose of the ESA
(3) the 1982 Amendments allowing incidental take permits
(why would a permit be necessary for an incidental take
not prohibited by §9?)
(4) legislative history
b. O'Connor's concurring opinion: Regulation survives facial
challenge but Palila may have been wrongly decided.
2
-------
(1) habitat modification that prevents breeding can actually
injure an individual of a species in the same way as
sterilization would.
(2) proximate causation limits liability to foreseeable harm
(3) Destruction of seedlings in Palila did not proximately
cause actual injury to identifiable birds
c. Scalia's dissent: FWS interpretation of harm is not authorized by
ESA
(1) FWS definition of harm does not comport with the
historical meaning of take in the context of wildlife laws
(2) all other terms in take definition require "affirmative
conduct intentionally directed against a particular
animal."
(3) indirect harm neither requires proximate cause nor
establishes a strict liability scheme
(4) impairment of breeding creates liability for harm to
species as a whole rather than individuals.
3
-------
An Endangered Species Act (ESA) Primer
Part V
Robert L. Fischman
Indiana University School of Law
V. Section 10: Exceptions
A. Incidental take permits: §10(a) and 50 C.F.R. 17.22(b)
1. A popular tool in recent years because it promotes planning and permits
development that takes listed species
a. 35 HCPs were in place as of Jan. 1995 and 130 were in
development
b. We will discuss EPA's role in creative partnerships tomorrow
afternoon.
2. Applicant must prepare a Habitat Conservation Plan (HCP) that
specifies: §10(a)(2)(A)
a. the impact of the taking;
b. steps to minimize and mitigate the impact;
c. the funding to implement the steps (usually assessments on
development similar to those made for street lighting, refuse
disposal, etc.);
d. what alternative actions to the taking the applicant considered
and the reasons why they were not taken; and
e. other measures that the FWS/NMFS may require as being
necessary or appropriate for the purposes of the plan
3. Opportunity for public comment on an application is required
4. FWS/NMFS shall issue a permit after it has received whatever
assurances as are necessary that the HCP will be implemented and if it
fmds that: § 10(a)(2)(B)
a. the taking will be incidental;
b. the applicant will minimize and mitigate impacts to the
maximum extent practicable;
c. the applicant will ensure adequate funding for the plan;
d. the taking will not appreciably reduce the likelihood of the
survival and recovery of the species; and
e. the measures that FWS/NMFS deems necessary or appropriate
will be met.
5. Permit must be preceded by a finding published in the Federal Register
that: (§10(d»
a. the exception was applied for in good faith;
b. the permit will not operate to the disadvantage of the species;
and
c. the permit will be consistent with purposes of the ESA.
1
-------
B. Experimental populations: §10(j) and 50 C.F.R. 17.80 - 17.86
1. Another popular tool in recent years because of its flexibility (e.g. red
wolves (Alligator R. NWR), black-footed ferrets, timber wolves
(Yellowstone NP)). We will discuss this in more detail Wednesday
afternoon
2. An experimental population is a population released "outside of the
current range" of the species where it can be at all times "wholly
separate geographically from nonexperimental populations of the same
species." §10(j)(2)
3. FWS/NMFS must publish finding "whether or not an experimental
population is essential to the continued existence of" the listed species.
§10(j)(2)(B). An experimental population whose loss would be likely
to appreciably reduce the likelihood of survival of the species in the
wild is categorized as essential. 50 C.F.R. 17.80(b).
a. If the experimental population is essential, then it is treated as a
threatened species.
b. If the experimental population is not essential, then it is treated
as a threatened species except that:
(1) it will be treated as a proposed species for the purpose of
§7 (confer rather than consult) except where it occurs in
a national wildlife refuge or a national park; and
(2) critical habitat shall not be designated for the
experimental population
4. Before designating, FWS/NMFS must find that an experimental
population rule will further the conservation of the species.
§10(J)(2)(A).
5. FWS/NMFS must consult with "affected Federal agencies" in
developing and implementing experimental population rules. 50 C.F.R.
17.81(d)
6. An experimental population rule must provide: 50 C.F.R. 17.81(c)
a. Appropriate means to identify the experimental population;
b. A finding whether the experimental population is essential based
on the best scientific and commercial data available;
c. Management measures; and
d. A process for periodic review and evaluation of the effect of the
release on the species' recovery
C. Hardship: §10(b) and 50 C.F.R. 17.23
1. A person who enters into a contract with respect to a species before the
date of notice in the Federal Register that the species is under
consideration for listing may receive an exemption permit IF
application of the ESA would cause undue economic hardship,
a. "Undue economic hardship" includes substantial economic loss
resulting from an inability to perform contracts and curtailment
2
-------
of subsistence taking by persons not reasonably able to secure
other sources of subsistence.
2. Permit must be preceded by a finding published in the Federal Register
that: (§ 10(d))
a. the exception was applied for in good faith;
b. the permit will not operate to the disadvantage of the species;
and
c. the permit will be consistent with purposes of the ESA.
D. Subsistence activities by Alaskan Natives; §10(e) and 50 C.F.R. 17.5
1. Non-native permanent residents of Alaskan native villages also qualify
for this exception if they are primarily dependent upon the taking of
fish and wildlife for consumption or for the creation and sale of
authentic native handicrafts and clothing.
2. Non-edible byproducts of subsistence activities may be sold when made
into authentic native handicrafts and clothing.
3. Edible portions of species may be sold in native villages for native
consumption in the native villages.]
4. FWS/NMFS may regulate those takings found to be "materially and
negatively" affecting the species. §10(e)(4)
E. Scientific research: 50 C.F.R. 17.22(a)
F. Activities covered by incidental take statements: §7(b)(4) - See part m of
outline
G. Protection against bodily harm of self or others: §11(a)(3) - See part VI of
outline
3
-------
ESA Primer
Parts VI (Enforcement) & VII (Other Provisions)
Ken Rosenbaum
VI. Enforcement (ESA §11)
A. Overview: Enforcement actions may come from two sources:
federal agencies (FWS, NMFS, and DOJ) or citizens.
1. The listing agencies may press civil administrative
actions and DOJ may press civil or criminal
judicial actions for violations of any part of the
ESA.
2. Citizens may sue any agency or other person to
enjoin violations of the ESA or may sue FWS or NMFS
to challenge actions taken under the ESA. APA
suits are also possible.
B. Civil penalties.
1. The Secretaries can assess administrative penalties
against persons (including agencies or their
personnel) for any violation of the Act, its
regulations, or permits, etc. ESA 111(a)(1).
Sample penalties:
a. Knowing violation of: ESA itself; ESA permit
or certificate; or taking regulations for
endangered species: up to $25,000.
b. Knowing violation of ESA regulations (other
than those prohibiting take): up to $12,000.
c. Other violations: up to $500.
2. Those assessed civil penalties may request an
administrative hearing and can ultimately seek
judicial review.
3. Violators may plead self-defense or defense of
another.
C. Criminal penalties.
1. The United States can bring criminal actions
against any person for knowing violations of the
Act, its regulations, etc. ESA §ll(a)(2). Sample
criminal penalties:
-8-
-------
a. Knowing violation of: the Act; permit or
certificate; or regulations on taking
endangered species: up to $50,000 and one year
in prison.
b. Knowing violation of other regulations: up to
$25,000 and six months in prison.
c. The United States may seek forfeiture of any
equipment involved in a criminal taking.
§11(e)(4)(B).
2. Criminal actions are always brought in federal
district court.
3. Defendants may plead self-defense or defense of
another.
D. Injunctions: The United States can seek injunctions
against violation of the Act or its regulations.
E. Rewards: The government can use fines and penalties to
pay rewards to those who help bring violators to justice,
but federal employees acting within the scope of their
employment are not eligible for rewards.
F. Citizen actions.
1. ESA § 11(g) contains a citizen suit provision
similar to the ones in many of the laws that EPA
administers.
2. Upon giving proper notice, citizens can sue to
enjoin any person in violation of the Act (e.g., an
agency in violation of §7(a)(2) consultation
requirements). Prevailing parties may also claim
attorneys fees.
3. The Supreme Court has required citizen plaintiffs
to show injury-in-fact to claim standing to bring
citizen suits.
4. Challenges of Endangered Species Committee
exemption decisions go directly to the circuit
courts of appeal.
5. Citizens can also bring challenges to agency
actions under the Administrative Procedure Act.
VI. Other Provisions
A. State programs and laws, ESA §6.
-9-
-------
1. Attention! State laws against taking wildlife and
plants may be more restrictive than federal laws.
Federal exemptions and permits are no protection
against more restrictive state laws. ESA §6(f).
2. ESA calls for cooperation with states in
conservation programs, including consultation with
states before acquiring lands.
3. A Secretary may make management agreements for
state administration and management of conservation
areas.
4. A Secretary may make a cooperative agreement for
state establishment and maintenance of an
"adequate" (i.e., as good or better than the
federal) conservation program for listed wildlife
or plants.
a. The state takes over enforcement of ESA-like
protections for threatened species and for
takings of endangered species; the federal
government retains authority to enforce CITES
restrictions, non-ESA protections, and even
ESA restrictions in emergencies or at the
request of the state.
b. Cooperating states are eligible for federal
grants covering up to 75% of their program
costs (or 90% for multi-state projects).
B. International Agreements, §8A
1. In General: ESA §8A contains some implementing
language for two wildlife-related treaties. These
treaties may affect agency programs involving
import or export of wildlife or may serve as a
basis for cooperative environmental programs with
sister agencies in other countries. The Secretary
of the Interior is the lead U.S. official in
implementation of these treaties.
2. The Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES).
a. Overview: The United States and over 100 other
nations are party to CITES, an international
treaty restricting trade in endangered
species.
-10-
-------
b. CITES's Secretariat (official administrative
office) maintains lists of protected species
agreed upon by member nations.
i. Member nations promise not to allow
commercial trade in "Appendix I" species
or items derived from them.
ii. "Appendix II" species are subject to
strict import and export controls.
iii. "Appendix III" species are locally
threatened; imports require a certificate
of origin.
3. The Convention oh Nature Protection and Wildlife
Preservation in the Western Hemisphere.
a. Overview: The Western Hemisphere Convention,
signed in 1940, was ahead of its time. It
calls for nations to protect wildlife and
natural habitat through talcing controls,
establishment of reserves, and trade laws.
Currently 22 nations in the Americas have
signed the treaty.
b. Though the Convention embodies good intentions
and good, ideas, its broad wording and lack of
strong enforcement provisions and other
compliance incentives have limited its impact.
c. ESA directs Interior to cooperate with other
agencies in implementing the treaty; the
treaty is often cited as a basis for
cooperative environmental programs with other
countries and with the Organization of
American States.
C. Land Acquisition, §5: The listing agencies have authority
to acquire land for conservation of listed species.
VIII. Beyond the ESA
A. Overview: other federal laws prohibit "taking" particular
classes of wildlife, and compliance with the ESA does not
excuse a violation of these other laws.
B. The Migratory Bird Treaty Act makes it illegal to
"pursue, hunt, take, capture, kill [or] possess" or
disturb the nest of most native non-game birds.
-11-
-------
C. The Eagle Protection Act requires a permit to take,
possess, or sell an eagle, or eagle part, nest, or egg.
D. The Wild Horse Act makes it illegal to remove a wild
horse or burro from the public lands, convert it to
private use, or maliciously cause death or harassment.
E. The Marine Mammal Protection Act requires a permit for
most takings of marine mammals, including whales,
dolphins, seals, sea lions, polar bears, walruses, and
sea otters.
-12-
-------
Overview of the Consultation Process
4/23/97
Robert L. Fischman
Indiana University School of Law
Summary:
I. Summary of Consultation Regulations
II. Conferencing
III. Early Consultation
I. Summary of Consultation Regulations
A. The duty to consult: The EPA shall consult with the FWS to insure
that any action authorized, funded, or carried out by the EPA is not
likely to jeopardize the continued existence of a listed species or result in
the adverse modification of critical habitat. ~ ESA §7(a)(2).
1. This duty applies to any discretionary act
a. 50 C.F.R. 402.02 includes as examples of "action":
i. promulgation of regulations
ii. granting licences, permits, grants-in-aid
iii. actions directly or indirectly causing modification to the
land, water, or air
2. Unlike NEPA, there are no categorical exclusions or functional
equivalents to compliance with consultation requirements.
3. "Jeopardize the continued existence or means "to reduce
appreciably 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" either directly or indirectly. 50
C.F.R. 402.02
a. Regulation essentially ties jeopardy to reduction of the likelihood
of SURVIVAL since the term recovery encompasses survival.
Impairing recovery alone, without jeopardizing survival does not
trigger jeopardy.
b. Adverse modification is similarly limited to alterations that
appreciably diminish the value of critical habitat for both survival
and recovery. 50 C.F.R. 402.02
B. How does EPA meet this duty? Consultation often begins with the preparation
of a biological assessment (BA).
1. Like the NEPA environmental assessment, the BA is designed to answer
a "yes" or "no" question. For the EA, the question is: "Is an EIS
1
-------
required?" For the BA, the question is: "Is formal consultation
required?"
2. EPA must request from FWS whether any listed or proposed
species may be present in the area of a proposed action. ESA
§7(c)(l)
3. Biological assessment (BA): Conducted by EPA to evaluate the potential
effects on listed/proposed species and designated/proposed critical
habitat. 50 C.F.R. 402.12(k)(l)
a. Required for any actions that are "major construction
activities" 50 C.F.R. 402.12(b)
(1) "major construction activity" is a construction
project (or other undertaking having similar
physical impacts) which is a major Federal action
significantly affecting the quality of the human
environment under NEPA. 50 C.F.R. 402.02.
(a) E.g. permit for construction (RCRA) or grant for
construction (CWA)
(2) can be used for any action to determine the need for
formal consultation
b. BA determines whether any listed/proposed species or
habitat are likely to be adversely affected by the action.
ESA §7(c)(l), 50 C.F.R. 402.12(a)
(1) The "adverse" term does not appear in the ESA but is an
important aspect of the regulations. Consultation
regulations are far easier to understand than the text of
section 7 of the ESA.
c. Information provided by FWS -- 50 C.F.R. 402.12(d)
(1) To obtain lists of listed/proposed species or habitat,
EPA can either:
(a) Request list from FWS. FWS which will
provide list within 30 days.
(b) Provide notice to FWS of the species and
habitats being included in the BA. FWS
must concur with or revise the list within 30
days
(2) FWS will provide list of candidate species for
EPA's discretionary consideration.
(3) FWS will provide references/information regarding
relevant species/critical habitat and may recommend
that EPA conduct certain discretionary studies or
surveys to provide a better basis for the BA.
d. If EPA does not begin preparation of B A within 90 days of
receipt of (or concurrence with) species list, it must verify
2
-------
the accuracy of the species list at the time BA preparation
begins. 50 C.F.R. 402.12(e).
e. Biological assessment usually must be completed by EPA
in 180 days after receipt of the species list. 50 C.F.R.
402.12(i)
f. Content of BA is discretionary with the EPA, but the
following may be considered: 50 C.F.R. 402.12(f)
(1) results of on-site surveys to determine occurrence of
species;
(2) opinions of recognized experts on the species at
issue;
(3) reviews of literature or other information;
(4) analysis of effects of the action on the species and
habitat, including cumulative effects;
(a) note special meaning of cumulative effects in
consultation regulations, discussed under "Formal
Consultation," below.
(5) results of related studies; and
(6) analysis of alternate actions.
g. Completed BA must be submitted to FWS. FWS will
respond within 30 days whether or not it concurs with the
findings of BA. 50 C.F.R. 402.120)
(1) If BA indicates that action is not likely to adversely
affect. AND FWS concurs, then no formal
consultation (or conference) is required. 50 C.F.R.
402.12(k).
(2) FWS may use the BA results to request EPA to
initiate formal consultation. 50 C.F.R. 402.12(k).
But, initiation of consultation is an EPA
responsibility.
C. In fulfilling its duty to consult, EPA must use the best scientific and
commercial data available. ESA §7(a)(2).
D. Informal consultation includes all discussions between EPA and FWS to
assist EPA in determining whether formal consultation is necessary. 50
C.F.R. 402.13.
1. Informal consultation is discretionary. It can help EPA avoid
problems down the line. USE IT.
2. Even though it is informal, document all discussions with FWS and others.
This may become an important part of the administrative record.
3. Informal consultation may conclude with a determination by the
EPA that action is not likely to adversely affect. If the FWS
3
-------
concurs with such a determination, no formal consultation is
necessary.
E. Formal Consultation: required if EPA determines that an action mav
affect a listed species or critical habitat. 50 C.F.R. 402.14. Required for a
"may affect" action even if no BA is required.
1. Not necessary if BA finds "not likely to adversely affect" AND
FWS concurred.
2. Consultation is initiated by the EPA. Upon initiation of formal
consultation, EPA must provide FWS with: 50 C.F.R. 402.14(c)
a.
a description of the proposed action;
b.
a description of the area affected;
c.
a description of listed species or critical habitat that may be
affected;
d.
any relevant reports, including NEPA documents and BAs; and
e.
a description of how the action may affect the species/habitat and
an analysis of cumulative effects:
(1) Cumulative effects in this context are different from
NEPA cumulative effects. For ESA, cumulative
effects "are those effects of future State or private
activities, not involving Federal activities, that are
reasonably certain to occur within the action area."
50 C.F.R. 402.02 (emphasis added). This is quite
different from the cumulative effects analysis
required under NEPA.
3. Formal consultation usually lasts 90 days (extensions are
available). Within 45 days after consultation concludes, FWS
issues a biological opinion. 50 C.F.R. 402.14(e)
4. Biological opinion (BO): issued by FWS at conclusion of formal
consultation. States whether or not the action is likely to
jeopardize the continued existence of listed species or result in
adverse modification of critical habitat. ESA §7(b)(3)
a. If the biological opinion finds that the action is likely to
result in jeopardy or adverse modification, it is called a
"jeopardy opinion" and must suggest reasonable and
prudent alternatives that do not violate ESA §7(a)(2).
b. If the approved action or reasonable and prudent alternative
will result in the incidental taking of a listed species that
will not violate ESA §7(a)(2), the FWS will provide an
incidental take statement that specifies: (50 C.F.R.
402.14(i) and ESA §7(b)(4) & (o)(2))
(1) the impact of the taking on the species (e.g. amount
or extent),
4
-------
(2) reasonable and prudent measures to minimize the
impact, and
(3) terms and conditions (including reporting
requirements) that must be complied with to
implement the measures.
c. The BO may contain advisory conservation
recommendations. These should not be confused with the
reasonable and prudent measures in an incidental take
statement, which are binding on the agency.
E.g. B.O. may recommend actions to protect candidate species.
F. Once consultation is initiated, neither EPA nor the applicant may make
any irreversible or irretrievable commitment of resources that would
limit the ability to create reasonable and prudent alternatives to the
proposed action. — ESA §7(d)
G. The EPA must reinitiate consultation if: (50 C.F.R. 402.16)
1. the amount or extent of taking in an incidental take statement is
exceeded. (See also 50 C.F.R. 402.14(i)(4) (reinitiate consultation
immediately).)
2. new information reveals that the action may affect listed species or
critical habitat in a manner or extent not previously considered
3. the action is subsequently modified in a manner that causes a
relevant effect not considered in the BO.
4. a new species is listed or critical habitat designated that may be
affected by the action.
H. Emergencies: acts of God, disasters, casualties, national security
emergency. 50 C.F.R. 402.05 (e.g. CERCLA removals)
1. expedited, informal consultation
2. formal consultation must be started as soon as practicable after
emergency is under control.
I. Consultation not necessary for exempted actions. §7(e), (f), (g), (h); 50
C.F.R. part 450.
1. Exemptions are extremely rare. Endangered Species Committee
has only met three times and granted an exemption only twice
(Grayrocks Dam in 1979 and 13 BLM timber sales in 1992).
J. Enforcement: Citizens may sue to enforce the consultation duty. ESA
§H(g).
5
-------
II. Conferencing [50 C.F.R. 402.10]
Duty to confer: The EPA shall confer with the FWS on any agency action likely
to jeopardize the continued existence of a species proposed to be listed. ~ ESA
§ 7(a)(4).
1. Unlike the consultation duty which has procedural and substantive
requirements, the conferencing duty is purely procedural
2. Note the higher threshold for mandatory cooperation with FWS for
conferencing ("likely to jeopardize") as compared to consultation ("may
affect").
Conference consists of informal discussion with FWS that results in
advisory recommendations. 50 C.F.R. 402.10.
1. EPA must confer with the FWS, but has no legal obligation to
prevent jeopardy or to withhold commitment of resources.
Nonetheless, conference offers EPA opportunity to avoid problems
once (if) species is listed.
III. Early Consultation [50 C.F.R. 402.11]
A. Early consultation is designed to reduce the likelihood of conflicts between listed
species and proposed actions prior to the filing of an application for a Federal
permit or license. 50 C.F.R. 402.11 (a)
1. Although early consultation is conducted between FWS/NMFS and the
EPA, the prospective applicant should be involved throughout the process.
B. Initiation of early consultation:
1. EPA must initiate early consultation if a prospective permit applicant
certifies that: 50 C.F.R. 402.11(b) & (c)
a. It has a definitive proposal outlining the action and its effects; and
b. It intends to implement its proposal, if authorized.
2. Initiation of early consultation requires the EPA to submit the same
information to the FWS as initiation of formal consultation (see above and
50 C.F.R. 402.14(c))
3. If the action fall under the definition of a "major construction activity" that
would trigger a B.A., then EPA must prepare a BA prior to initiating early
consultation.
C. Early consultation process:
1. The procedures and responsibilities for early consultation are identical to
those for formal consultation. 50 C.F.R. 402.11 (d)
a. The prospective applicant's project is treated as a proposed action.
b. The FWS concludes early consultation with a preliminary
A.
B.
6
-------
biological opinion.
(1) The contents and conclusions of a preliminary biological
opinion are identical to a B.O. issued after formal
consultation EXCEPT that the incidental take statement
does not constitute authority to take listed species. 50
C.F.R. 402.11(e)
D. Confirmation of the preliminary biological opinion: 50 C.F.R. 402.11 (f)
1. After the prospective applicant applies to the EPA for a permit but prior to
the issuance of the permit, the EPA should submit a written request for
confirmation of the preliminary B.O.
2. FWS/NMFS shall respond within 45 days by either:
a. Confirming the preliminary B.O.
(1) The FWS will confirm a preliminary B.O. if it finds that
the proposed action has not been significantly altered from
the information submitted during early consultation.
(2) Confirmation turns the preliminary B.O. into a regular B.O.
and the incidental take statement becomes a shield from
section 9 liability.
b. Or, requesting that the EPA initiate formal consultation.
7
-------
Preparing a Biological Assessment
Lecture outline & notes
Ken Rosenbaum
I. In a nutshell: Some basics.
A. What is a Biological Assessment?
B. What is it good for?
II. When to prepare a BA.
A. What kinds of proposed actions require BAs?
B. Where do BAs fit in the consultation flow chart?
C. Why might you want to prepare a discretionary BA?
III. Who prepares the BA.
IV. What should be in a BA.
V. Combining a BA with other documents.
VI. Deadlines for preparation.
VII. Taking of listed species while preparing the BA.
VIII. What happens after the BA is finished.
-1-
-------
What is a Biological Assessment?
A Biological Assessment (BA) is study designed to determine
whether a proposed agency action may affect proposed or listed
species or designated or proposed critical habitat. ESA §7(c)
sets out the statutory requirement for BAs.
What are BAs good for?
BAs serve as a mechanism for deciding whether the agency must
begin formal consultation with the listing agency over a
proj ect.
Do all proposed actions require BAs?
No. Only "major construction activities" in areas where listed
species or critical habitat may be present require BAs.
A major construction activity is "a construction project (or
other undertaking having similar physical impacts) which is a
major Federal action significantly affecting the human
environment as referred to in the National Environmental
Policy Act " 50 CFR §402.02.
In theory, this definition sets out a two-part test. The
first part is, is this a construction activity? Note that the
agency itself doesn't have to be the one performing the
construction. Approving a construction-related permit or
issuing a loan or grant for a construction activity may
require a BA. Also, activities involving physical impacts,
like dredging, soil removal, or timber harvest, are considered
construction activities.
The second part of the test is, is this a major Federal action
significantly affecting the human environment under NEPA?
This is a somewhat circular test. If an action may adversely
affect listed species, under CEQ rules, it probably qualifies
as a major federal action.
Examples of EPA actions that courts or the agency have deemed
major construction activities include issuing a RCRA permit
for expansion of a hazardous waste facility, issuing a NPDES
permit involving construction of an outfall, and issuing
construction grants under the Clean Water Act.
EPA actions that do not require BAs include approval of
insubstantial changes to a previously assessed major
construction activity (though it would be prudent to get
concurrence from the listing agency that the change is
insubstantial), approval of planning for future construction
activities, and activities that the agency is considering but
-2-
-------
is not ready to commit to.
Note that you may decide to prepare a BA for an activity even
if it isn't a major construction activity. More about that
later ....
When does EPA need to prepare a BA?
To take the satellite view (of what on closer inspection is a
varied set of procedures), EPA needs to prepare a BA after EPA
has verified with the listing agency that a listed species may
be affected by a proposed major construction activity but
before the listing agency begins preparing its biological
opinion on the impacts of the proposed activity.
To take the close-up view, begin with ESA §7(c), which
requires agencies involved in construction activities to ask
the appropriate listing agency whether a listed or proposed
species (or, according to the supporting regulations, critical
habitat) may be present in the area of the proposed action.
The ESA §7 regulations require the request to be in writing.
What if EPA already knows that a species or critical
habitat is present? In that case, tell, don't ask. Give
the listing agency written notification that EPA is
contemplating the proposed action. 50 CFR §402.12(c).
The listing agency then must get back to EPA within 30 days.
Based on the best available scientific and commercial data,
the agency will tell EPA whether listed or proposed species or
habitat may be present. Or, if EPA sent a notification rather
than a request, the agency will concur with or revise EPA's
notification. 50 CFR §402.12(d).
If the listing agency says no listed species or critical
habitat may be present, EPA doesn't need to prepare a BA.
But if proposed species or critical habitat are present,
EPA may have to prepare a BA if the proposals become
final. EPA may want to prepare a BA against that
contingency. Meanwhile, EPA must confer with the listing
agency. 50 CFR §402.12(d)(1).
If the listing agency says listed species or critical habitat
may be present, EPA must prepare a BA. 50 CFR §402.12 (d) (2).
After EPA gets official word back from the listing agency, if
it waits more than 90 days before starting work on the BA, it
must contact the agency, formally or informally, to verify
that no new information or circumstances have come to light.
50 CFR §402.12(e).
-3-
-------
When are BA's discretionary?
BA's are discretionary if the action is not a major
construction activity or if only proposed species or habitat
are present. In these cases, the discretion to prepare the BA
rests with the action agency, EPA.
Why would EPA want to go through the trouble of preparing a
discretionary BA?
There are several possible motives:
Because writing a BA helps to establish an early,
positive working relationship with the listing agency.
Remember that the consultation and conference
requirements are broader than the BA requirement. If EPA
is going to be working closely with the listing agency,
having a BA might facilitate that work.
Because the alternative to a BA involves gathering much
of the same information. If EPA decides not to prepare
a BA, EPA still will be obligated to carry out a
biological evaluation and provide the listing agency with
information on the project and its potential effects.
Avoiding the formal BA may not save EPA much in the end.
Because in the case of proposed species or where there is
some legal doubt over whether an action is a major
construction activity, preparing a BA now might head off
later procedural detours.
Because a BA is helpful in those rare cases that end up
before the cabinet-level Endangered Species Committee for
an exemption. Having a BA will make it possible for the
Committee to award a permanent exemption. A permanent
exemption is one that covers all species for the life of
the exempted action, even newly listed species or species
newly discovered to be in the area.
If someone other than EPA, say a permit applicant,
decides to seek an exemption from the Committee,
that person may prepare the BA. In that case, EPA
has a duty to supervise preparation. ESA §7(c)(2).
Who usually prepares the BA?
Responsibility for preparing the BA rests with the action
agency. That means for an EPA action, EPA must oversee the
preparation of the BA.
EPA can let someone outside the agency prepare the BA. For
example, if an NPDES permit requires a BA, EPA can let the
-4-
-------
applicant or an expert hired by the applicant prepare it.
Whoever prepares the BA must work "in cooperation" with the
listing agency. Informal contact with the listing agency
while scoping, researching, and writing the BA makes later
concurrence or consultation easier.
What must be in a BA?
The BA must "evaluate the potential effects of the action on
listed and proposed species and designated and proposed
critical habitat and determine whether any such species or
habitat are likely to be adversely affected by the action
...." 50 CFR §402.12(a). The BA should contain enough data
and expert analysis to back up its conclusions.
Beyond that, EPA has a fair amount of discretion about the
form and contents of a BA. The ESA regulations offer some
guidelines. They suggest that the BA could include:
(1) The results of an on-site inspection of the area
affected by the action to determine if listed or proposed
species are present or occur seasonally.
(2) The views of recognized experts on the species at
issue.
(3) A review of the literature and other information.
(4) An analysis of the effects of the action on the
species and habitat, including consideration of
cumulative effects [including those from known, unrelated
future non-Federal activities], and the results of any
related studies.
(5) An analysis of alternate actions considered by the
Federal agency for the proposed action.
50 CFR §402.12(f)(1)-(5) [and the FWS Consultation handbook,
page 3-6].
Can a BA be combined with or replaced by other documents?
The ESA expressly allows the BA to be combined with NEPA
documentation. ESA §7(c)(l). So, for example, if listed
species were present in the area of a proposed action, but EPA
had figured out a way to structure the action to avoid
affecting the species, EPA might be able to prepare a document
that served as both an environmental assessment under NEPA
(leading to a finding of no significant impact) and a BA
(leading to a finding of no likely adverse effect).
-5-
-------
Be careful, though. BAs and EAs have different legal
requirements. It is possible to write a document that acts as
both, but one will not automatically serve as the other.
If EPA has already done some environmental studies of a
project, EPA may incorporate them by reference. If EPA has
already done a BA on a similar project (including an earlier
version of the project) it may incorporate the old BA by
reference, but must certify in writing that the proposed
action involves similar impacts to the same species in the
same area; that no new listings or critical habitat, proposed
or final, are involved; and that it has supplemented the old
BA with relevant new information. 50 CFR §402.12(g).
How much time does an agency have to prepare a BA?
The ESA regulations allow 180 days. If the listing agency and
EPA agree to extend this limit, they may. If a permit or
license is involved, EPA must give the applicant written
notice of the extension, before the original limit expires,
and explain how long an extension is necessary and why. 50
CFR §402.12(i).
Note that this 180-day track, followed by the appropriate
timeframes for listing agency review and consultation, may
conflict with other statutory or court-ordered timeframes. If
a possible conflict may be coming, seek counsel.
The 180-day limit is for the benefit of the proponents of the
action. Missing the deadline is probably not a large concern
if the proponents (including the applicant) don't mind.
However, make sure that the tardy BA includes any new
information on species and habitat that may have emerged, and
make sure that no construction activity begins before the BA
requirement is met.
What if preparing the BA requires taking a listed organism?
Say EPA is asked to pass on a permit for dredging an estuary
that FWS says may be home to an endangered muck-burrowing
polychaete worm. The only way to determine if the worm is
there is to sample some muck. If the worm is there, EPA will
be capturing it, not to mention disturbing its habitat. EPA
will be "taking" a listed species. What should EPA do? There
is good news and bad news.
The good news is, EPA's sampling itself is not a major
construction activity requiring a BA. (If it were, EPA would
be at the beginning of an infinite series of BAs, each of
which could not be begun until another unstartable BA was
prepared.)
-6-
-------
The bad news is, EPA (or whoever is doing the taking) will
need an ESA §10 permit for the sampling. 50 CFR §402.12(h).
This involves an formal permit application with opportunity
for public comment. See 50 CFR pt. 17.
When the BA is finished, what happens next?
Submit the BA to the listing agency. The listing agency has
30 days to respond in writing.
If the BA concludes that a listed species or critical habitat
is likely to be adversely affected, there is no need to wait.
Ask the listing agency to start consultation right away.
If the BA concludes that a proposed species is jeopardized or
that proposed critical habitat is likely to be destroyed or
adversely modified, EPA may request that a conference begin
right away.
If the BA finds none of these adverse impacts, wait for the
listing agency to concur. The listing agency may concur. It
may come back to EPA informally suggesting modifications in
the action. In that case, it may concur on the action as
revised.
If the listing agency disagrees with EPA, it will send a
letter of nonconcurrence, requesting consultation or
conference as appropriate.
Note that EPA may not allow construction to begin or enter
into a contract for construction on a major construction
activity before completing a BA. That would violate ESA
87(c)(1).
Once EPA completes a BA, §7(c)(1) is no longer a worry. But,
§7(d) still prohibits any irreversible or irretrievable
commitments of resources until after consultation.
-7-
-------
EPA's Authority to Protect Species and Habitats
Robert L. Fischman
Indiana University School of Law
Contaminants may adversely affect biodiversity in three ways:
1) Even at concentrations with no measurable health effects on humans, pollution can
injure individuals of other species that are more sensitive or exposed at greater concentrations
than humans. Pollution can kill outright or increase the likelihood of death from other stresses,
such as drought or habitat fragmentation.
2) Pollution affecting (weakening) a large number of individuals can destroy whole
populations that fall below minimum viable levels.
3) Effects of a depleted population can ripple through an entire ecosystem.
I. The Clean Water Act
A. Purpose: "restore and maintain the chemical, physical, and biological integrity of
the Nation's waters." 33 U.S.C. § 1251(a).
B. Water Quality Standards
C. Permits
1. National Pollutant Discharge Elimination System (NPDES)
2. Dredge or Fill (Section 404)
D. Enforcement
E. Delegation
F. Financial Assistance (e.g. §319 nonpoint source management)
G. Information Gathering
H. Regional Programs
II. Safe Drinking Water Act
A. Underground Injection Control Program
B. Groundwater Protection Activities
III. Section 7(a)( 1) of the Endangered Species Act
A. The EPA shall "utilize [its] authorities in furtherance of the purposes of [the ES A]
by carrying out programs for the conservation or listed species.
B. Duty is triggered by listing, no "take" or "jeopardy" need be present.
C. T. V.A. v. Hill, 437 U.S. 153, 182 (1978): §7(a)(l) "reveals an explicit
congressional decision to require agencies to aiford first priority to the declared
1
-------
national policy of saving endangered species."
Uses:
1. Authority for conservation decision—Carson-Truckee Water Conservancy
Dist. v. Clark, 741 F.2d 257 (9th Cir. 1984), cert, denied, 470 U.S. 1083
(1985) (ESA requires an agency to "actively pursue a species sonservation
policy").
2. Mandatory duty to conserve—Defenders of Wildlife v. Andrus, 428 F.
Supp. 167,170 (D.D.C. 1977) (ESA creates "an affirmative duty to
increase the population of protected species").
A. But, Piatt River Whooping Crane Critical Habitat Maintenance
Trust v. FERC, 962 F.2d 27 (D.C. Cir.), reh'g denied, 972 F.2d
1362 (D.C. Cir. 1992) (ESA "does not expand the powers
conferred on an agency by its enabling act").
-------
EPA Authority to Protect Species and Habitats
Clean Air, RCRA, and CERCLA
General notes
• Some of the most effective discretionary leverage remains at the national
level. E.g., Air Act authority to set secondary NAAQS with consideration
given to vegetation and wildlife; authority to write rules for state delegations
under RCRA and Clean Air; weighing of ESA concerns in hazard ranking
under CERCLA. But much useful discretion remains with the regions.
• Permit-related ESA questions arise under many laws. Can EPA insert ESA-
related conditions into permits, including conditions unrelated to the pollutant
(e.g., regarding the location of the facility on critical habitat), and can EPA
insist that states do so? As discussed below, the answer is not always clear
and probably varies from law to law.
• Under every law, EPA will have opportunities to exercise enforcement
discretion to help ESA goals: by weighing ESA concerns in setting
enforcement priorities, crafting inspection programs, setting penalties, etc.
• Under every law, EPA will have opportunities to take advantage of the
Services' expertise to identify and resolve ESA concerns.
Clean Air Act
• Some outstanding issues:
• Can EPA put ESA-based conditions into air permits?
• Can EPA object to state permits on ESA grounds?
• Does EPA have an obligation under ESA to object to a state permit
that affects listed species?
• Can EPA require delegated state programs to include ESA
restrictions?
• EPA can make a stronger case for exercising these authorities for the benefit
of species and habitat:
• Emergency orders, §303. The 1990 amendments expanded EPA's
authority under this section to allow it to issue orders to protect
welfare, which the Act defines to include wildlife and vegetation.
-1-
-------
• Emergency orders, §112(r)(9). EPA has authority to issue orders
against toxic air emissions sources threatening welfare.
• Solid Waste Combustion, § 129(e). Permits under this provision can
include measures to protect the environment from emissions.
• Enforcement discretion, e.g., making enforcement against violations
harming listed species or critical habitat high visibility and high
priority.
RCRA
• RCRA appears to give EPA authority to impose conditions in a TSD permit
to protect the environment generally, including listed species.
• EPA clearly has authority to impose conditions required under ESA
§7(a)(2) (consultation).
• It arguably has authority to impose conditions following conference
under §7(a)(3) or just to conserve species under §7(a)(l).
• Arguably, the conditions may concern threats from activities integrally
connected with TSD (e.g., land clearing to build a facility) and not just
the direct threat from the waste itself.
• EPA has emergency order authority (§§ 7003 & 9003(h)) that might be used
on behalf of listed species. Under a complex chain of statutory and
regulatory provisions, EPA may be able to issue §7003 orders against any
solid waste site (not just a hazardous waste TSD site) contributing to the
taking of a listed species or critical habitat if household or small generator
hazardous waste is at the site.
EPA can exercise enforcement discretion in favor of listed species protection.
For delegated state programs, RCRA guidelines call for state solid waste
programs to coordinate with the Office of Endangered Species, DOI. RCRA
rules are silent on ESA issues in hazardous waste program delegations.
CERCLA
• EPA can make listed species protection an integral part of release site
activities.
-2-
-------
• Routinely invite the Services and natural resource trustees to become
involved in site evaluations.
• Gather information at the site relevant to protected species and
habitat
• Review site documents with an eye for spotting ESA issues.
• Design clean-up activities to protect or benefit species and habitat
Enforcement activities:
• Make listed species concerns part of settlements.
• Weigh ESA impacts in setting penalties.
• Weigh ESA impacts in seeking abatement orders, etc.
.Use of the fund:
• Make technical assistance grants (§ 117(e)) to wildlife groups.
• Reimburse local governments (§123) for emergency response actions
protecting habitat
-------
EPA's Authority to Protect Species and Habitats
Federal Insecticide, Fungicide, and Rodenticide Act (Molly Whitworth)
® Brief history of established OPP ESA program
• History
• Interpretation of "minimizing effects to registration"
• Proposed programs
• Innovative and prevention approaches
Toxic Substances Control Act opportunities (Molly Whitworth)
• Existing chemicals
• PMN process an pilot studies
• Cradle to grave analysis under TSCA
• Relationship to other programs
National Environmental Protection Act (Jim Serfis)
• Responsibilities and opportunities to include endangered species
considerations in NEPA documentation
• Vehicle to support Services position and conservation efforts
-------
4/23/97
EPA's Role in ESA Actions to Protect Species and Habitats
Robert L. Fischman
Indiana University School of Law
Be attentive to two kinds of information: 1) Things EPA will need to know that
particpation and coordination will help determine; and 2) Things EPA knows and should
share.
Summary:
I. ESA Section 4: Listing and Designation of Critical Habitat
II. Recovery Planning - §4(f)
m. Habitat Conservation Planning
IV. Conservation Agreements for Candidate Species
V. Section 9 Prohibited Acts
I. ESA Section 4: Listing and Designation of Critical Habitat
A. Species lists
1. What is a species?
a. subspecies of fish, wildlife, or plants (e.g. northern spotted owl)
b. sometimes a distinct population segment of a vertebrate which
interbreeds when mature (e.g. grizzly bear, bald eagle)—Factors:
(a) Distinctness: species may be abundant elsewhere
in its range
(b) Significance: the importance of the segment to the
species
(c) Status
2. Hierarchy of protection
a. Listed species (as of 3/31/97) (1640 listed species worldwide;
1080 in the U.S.)
(a) endangered (U.S. only: 335 animals + 523 plants
= 858): Any species in danger of extinction
throughout all or a significant portion of its range
(except certain insect pests).
(b) threatened (U.S. only: 111 animals + 111 plants
= 222): Any species likely to become endangered
within the foreseeable future throughout all or a
significant portion of its range.
b. proposed (125 species as of 1/31/97)
1
-------
c. candidate [formerly "category 1 candidate"] (183 species as of
1/31/97)
listing warranted but precluded—"The Bermuda Triangle" of
listing.
substantial information exists to support listing proposal
but other proposals have higher priority
i) listing priorities include (FWS Guidance)
a) magnitude of threat
b) immediacy of threat
c) species taxonomy (distinctive or
isolated gene pools are given high
priority)
ii) listing priorities exclude importance of
species to ecosystem
B. Listing process: notice & comment (informal) rulemaking
1. Listing agency must consult with "affected Federal agencies" when
considering any revision of the lists. 50 C.F.R. 424.13. Depending on
the threat to the species, this would almost always include EPA
2. listing must be based "solely" [1982 amendments] on "the best scientific
and commercial data available." §4(b)(l)
a. Northern Spotted Owl v. Hodel (W.D. Wash 1988) - FWS
decision not to list owl was arbitrary and capricious
3. Section 4(a)(1) sets out factors that may lead to a species listing:
a. present or threatened modification of habitat;
b. over utilization for commercial purposes;
c. disease or predation;
d. the inadequacy of existing regulatory mechanisms;
(1) The EPA is likely to have the best scientific and
commercial data on many of the effects of regulatory
mechanisms
e. other natural or manmade factors affecting its continued existence
4. Emergency Listings §4(b)(7)
a. If an emergency "poses a significant risk to the well-being of any
species," the agency may dispense with most procedural listing
requirements in the ESA and APA. Emergency listings are
effective immediately for as long as 240 days.
5. Review
a. List is reviewed every 5 years §4(c)(2).
(1) New information on even listed species is always relevant
to FWS/NMFS
2
-------
C. Critical Habitat
1. What is it? §3(5)(A)
a. Range occupied by the species at the time of listing where
features occur that are essential to recovery and which may
require special management consideration or protection, AND
b. Areas outside the range occupied by the species at the time of
listing which are essential for the conservation of the species.
2. What protection does it get?
a. Critical Habitat is relevant only in §7 determinations of adverse
modification.
3. Designation process
a. Designation based on the "best scientific data available" AND
consideration of "the economic impact, and any other relevant
impact" of designation. §4(b)(2).
(1) any area may be excluded from designation based on a
cost-benefit balancing unless the exclusion will result in
extinction
(2) EPA may have scientific or economic information relating
to aquatic species that could shape critical habitat.
(a) Water quality standard triennial review
(b) Use attainability analysis under 40 C.F.R. 131
(c) Biennial CWA 305(b) national water quality
inventory report
b. To the "maximum extent prudent and determinable," designation
of critical habitat shall occur concurrently with listing. §4(a)(3).
(1) Designation of critical habitat is not prudent when: 50
C.F.R. 424.12(a)(1)
(a) the species is threatened by taking or other human
activity, and identification of critical habitat can be
expected to increase this threat; or
(b) such designation would not be beneficial to the
species.
c. 123 species have designated critical habitat (as of 1/31/97)
3
-------
Recovery Planning - §4(f)
A. Fulfills conservation goal of ESA §2(b):
"[PJrovide a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved." §2(b)
1. Conservation means the use of all methods and procedures necessary to
bring a listed species to the point of recovery, where the protections of
the ESA are no longer needed. §3(3). As of January 1995, 8 species
had been recovered and delisted.
2. Recovery planning is a more comprehensive conservation approach to
widespread but diffuse threats than the "one-threat" model of sections 7
and 9 of the ESA. (e.g. RCW)
B. Must be developed by FWS/NMFS unless a recovery plan would not promote
conservation of the species. §4(f)(l).
1. As of 3/31/97, there were 454 approved recovery plans (covering over
640 species). Some cover more than one species. A few species have
separate plans covering different parts of their ranges.
2. Recovery of listed species is the ultimate goal of the ESA.
C. Content of Recovery Plans:
1. site-specific management actions (often called "tasks");
a. Tasks are assigned one of three priority levels
(1) priority 1: necessary to prevent extinction
(2) priority 2: avoid significant further decline
(3) priority 3: necessary to achieve recovery
2. objective, measurable criteria for monitoring progress; and
3. estimate of the time and cost required to achieve recovery. §4(f)(l).
a. 1990 GAO report estimated total cost for recovery of listed
species to be $4.6 billion.
D. Recovery teams:
1. Teams are usually responsible for developing and implementing recovery
plans may and often do include members from other agencies and
institutions. Sometimes FWS contracts out recovery plan development.
a. Agencies (e.g. EPA) may tailor recovery plan tasks to suit
multiple objectives.
b. Agencies (e.g. EPA) may use a recovery plan as a vehicle for
requesting funds to carry out tasks assigned to it
c. Agencies (e.g. EPA) may use a recovery plan to justify changes
in regulations or programs to provide protection for the species
and to meet other objectives
2. These teams are not subject to the Federal Advisory Committee Act.
§4(f)(2).
a. Recent DOI guidance seeks to involve the representatives of
affected groups and provide stakeholders the opportunity to
-------
participate in recovery plan development.
3. Ultimate responsibility for approval of the plan rests with the FWS
(usually the regional director).
E. New FWS/NMFS policy requires completion of a draft recovery plan within 18
months of listing and a final plan within 12 months of completion of the draft.
F. Public notice, review, and comment are required before final approval of a
plan. §4(f)(4). [1988 Amendments]
G. Monitoring: FWS/NMFS report on status of recovery planning to Congress
every two years. §4(f)(3). [also 1988 Amendments]
H. Recent DOI initiative to "minimize the social and economic impacts" of
recovery planning and implementation
5
-------
m. Habitat Conservation Planning
A. Habitat Conservation Plans (HCPs) are required for developers to receive
incidental take permits: §10(a) and 50 C.F.R. 17.22(b)
B. A popular tool in recent years because it promotes planning and permits
development that takes listed species
1. 197 incidental take permits have been issued for HCPs as of 9/30/96
C. Applicant for incidental take permit must prepare a Habitat Conservation Plan
(HCP) that specifies: § 10(a)(2)(A)
1. the impact of the taking;
2. steps to minimize and mitigate the impact;
3. the funding to implement the steps (usually assessments on development
similar to those made for street lighting, refuse disposal, etc.);
4. what alternative actions to the taking the applicant considered and the
reasons why they were not taken; and
5. other measures that the FWS/NMFS may require as being necessary or
appropriate for the purposes of the plan
D. Opportunity for public comment on an application is required
E. FWS/NMFS shall issue a permit after it has received whatever assurances as are
necessary that the HCP will be implemented and if it finds that: § 10(a)(2)(B)
1. the taking will be incidental;
2. the applicant will minimize and mitigate impacts to the maximum extent
practicable;
3. the applicant will ensure adequate funding for the plan;
4. the taking will not appreciably reduce the likelihood of the survival and
recovery of the species; and
5. the measures that FWS/NMFS deems necessary or appropriate will be
met.
F. Permit must be preceded by a finding published in the Federal Register that:
(§10(d»
1. the exception was applied for in good faith;
2. the permit will not operate to the disadvantage of the species; and
3. the permit will be consistent with purposes of the ESA.
G. New DOI Initiative: A policy of "No Surprises" has been issued by
FWS/NMFS under which landowners who develop an approved HCP for any
listed species will not be subject to later demands for a larger land or financial
commitment if the HCP is adhered to — even if the needs of any species
covered by the plan increase over time. A landowner "buying into" an HCP is
thus assured that activities covered by the HCP can proceed without having any
additional mitigation requirements imposed.
H. EPA Roles: Although HCPs are associated with private projects, they represent
an important opportunity for ecosystem-wide planning and "place-based"
6
-------
initiatives
1. Jump Start
a. Use a consultation involving a federal permit to instigate broader
planning in the area
2. Hop on Board
a. If an area is developing an HCP, the process is better suited to
identifying cumulative effects of development activities on the
environment than consultation.
(1) future federal actions (e.g. permits) may be considered.
(2) therefore, development interests will have greater
certainty in an HCP as to how far they can go.
b. HCPs can bring together major polluters within a watershed if
pollution is a threat to the species.
(1) may be more effective than TMDL approach to allocation
of environmental harm
IV. Conservation Agreements for Candidate Species
A. Voluntary commitments between FWS and individuals or agencies (e.g. EPA)
to help protect and conserve listed, proposed or candidate species.
1. Usually for candidate species
2. Agreements between agencies take the form of memoranda of
understanding
B. Conservation agreements include management plans and document the specific
actions and responsibilities that each party agrees to.
C. Incentive: conservation agreements can remove the threats to a candidate species
to avert a listing that would lead to more stringent limitations on activities.
1. ESA § 4(b)(1)(A) requires the listing agency to account for conservation
efforts in making a listing decision.
D. EPA could either enter into a conservation agreement itself or identify and
encourage a polluter who would benefit from a conservation agreement.
7
-------
V.
Section 9 Prohibited Acts
A. General prohibitions for all endangered species
1. Import or export
2. Deliver, receive, carry transport, or ship in interstate or foreign
commerce in the course of a commercial activity
3. Sell or offer for sale in interstate or foreign commerce
4. Violate any regulation pertaining to the species
B. Additional prohibitions for endangered animals only
1. Take - (More on this prohibition below)
2. Possess, sell, deliver, carry, transport, or ship
3. Illustration for endangered whooping crane from 50 C.F.R. 17.21(d)
a. A person captures a whooping crane in Texas and gives it to a
second person, who puts it in a closed van and drives thirty
miles, to another location in Texas. The second person then
gives the whooping crane to a third person, who is apprehended
with the bird in his possession. All three have violated the
law—the first by illegally taking the whooping crane; the second
by transporting an illegally taken whooping crane; and the third
by possessing an illegally taken whooping crane.
C. Additional prohibitions for endangered plants only
1. In areas under Federal jurisdiction:
a. Remove and reduce to possession, or
b. Maliciously damage or destroy
2. In other areas:
a. Remove, cut, dig up or damage or destroy in knowing violation
of any law or regulation of any State or in the course of any
violation of a State criminal trespass law.
D. Prohibitions for threatened species -
1. Violate any regulation pertaining to the species. §9(a).
a. FWS/NMFS shall issue regulations "necessary and advisable" to
conserve threatened species. §4(d).
(1) Animals: Blanket rule extends coverage of all
prohibitions applicable to endangered animals to
threatened animals unless the regulation for the threatened
species contains a special rule. 50 C.F.R. 17.31.
(2) Plants: Blanket rule extends coverage of all prohibitions
applicable to endangered plants to threatened plants (with
a minor exception for cultivated seeds) unless the
regulation for the threatened species contains a special
rule. 50 C.F.R. 17.71.
(3) "Special rules" under §4(d) are becoming more important
8
-------
with DOI's initiative to implement the ESA more flexibly
(a) E.g. California gnatcatcher rule supporting the
California Natural Community Conservation
Planning (NCCP) initiative.
E. Takings
1. Regulated takings (e.g. hunting and trapping) may be permitted "in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved." §3(3).
a. Such circumstances are rare and courts carefully scrutinize
justifications for regulated takings. See, e.g., Sierra Club v.
Clark (8th Cir. 1985) (wolf trapping).
2. "The term "take" means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct." §3(19).
3. FWS Regulation - 50 C.F.R. §7.3 defines "harm" to mean: "an act
which actually kills or injures wildlife. Such act may include significant
habitat modification or degradation where it actually kills or injures
wildlife bv significantly impairing essential behavioral patterns.
including breeding, feeding or sheltering." [emphasis added]
4. Palila v. Hawaii Dep't of Land & Natural Resources (9th Cir. 1988):
Upheld FWS regulation; management of mouflon sheep will ultimately
prevent regeneration of plants upon which endangered palila depends;
therefore a taking.
5. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115
S. Ct. 2407 (1995): Upheld (6-3) FWS regulation as authorized by the
ESA.
a. Stevens' majority opinion: Significant habitat modification is an
indirect form of harm. Applying the Chevron test, this is a
permissible interpretation of the ESA. Regulatory definition is
supported by:
(1) ordinary understanding of the term "harm"
(2) broad purpose of the ESA
(3) the 1982 Amendments allowing incidental take permits
(why would a permit be necessary for an incidental take
not prohibited by §9?)
(4) legislative history
b. O'Connor's concurring opinion: Regulation survives facial
challenge but Palila may have been wrongly decided.
(1) habitat modification that prevents breeding can actually
injure an individual of a species in the same way as
sterilization would.
(2) proximate causation limits liability to foreseeable harm
9
-------
(3) Destruction of seedlings in Palila did not proximately
cause actual injury to identifiable birds
c. Scalia's dissent: FWS interpretation of harm is not authorized by
ESA
(1) FWS definition of harm does not comport with the
historical meaning of take in the context of wildlife laws
(2) all other terms in take definition require "affirmative
conduct intentionally directed against a particular animal."
(3) indirect harm neither requires proximate cause nor
establishes a strict liability scheme
(4) impairment of breeding creates liability for harm to
species as a whole rather than individuals.
10
-------
USING POLLUTION CONTROL AUTHORITIES TO
PROTECT THREATENED AND ENDANGERED
SPECIES AND REDUCE ECOLOGICAL RISK
Prepared by the
Environmental Law Institute
for the
U.S. Environmental Protection Agency
EPA Assistance Agreement #CR-820539-01
(9220-02)
-------
^Yt
. 1
. 8
31
48
59
66
79
90
97
107
120
131
141
i
TABLE OF CONTENTS
Introduction
Clean Water Act
FIFRA
TSCA
RCRA
Clean Air Act i .
CERCLA
NEPA
Other EPA Authorities
ESA Programs in Other Federal Agencies . .
Endangered Species Protection By California
Pollution Control Agencies
Conclusions and Recommendations
-------
CHAPTER ONE
INTRODUCTION
The implementation of endangered species protection policies has focused, especially
in recent years, on the threats posed by various land use practices. Less studied, but
nevertheless important, are the wide ranging effects of pollution on endangered species and
critical habitat. The harmful effects of pollution have contributed to the listing of numerous
species under the Endangered Species Act (ESA).1
The Environmental Law Institute (ELI) therefore believed that it would serve the
public interest to look at opportunities for protecting species and habitat and reducing
ecological risk through pollution control programs. The focus of this report is an
examination of the federal government's primary pollution control agency to evaluate its
approach to protecting threatened and endangered species. The U.S. Environmental
Protection Agency (EPA) has substantial responsibilities under the ESA. Nevertheless, EPA
has only recently begun a systematic study of how the agency carries out its ESA obligations.
ELI reviewed both EPA's authority and, to the extent possible, its practice in order to
understand how the goals and mandates of the ESA are or are not integrated into EPA
programs. ELI also reviewed the practices of two other federal agencies, the U.S. Forest
Service and the Office of Surface Mining.
This evaluation of EPA is in large measure also applicable to state environmental
agencies, whose pollution control authorities and programs are frequently similar to those
on the federal level. The findings of this report with respect to EPA illustrate ways in which
state pollution control programs can enhance endangered species protection, even where
state programs are not subject to a state equivalent of the federal Endangered Species Act.
As an example on the state level, chapter 11 of the report describes briefly the ways in
which California integrates endangered species protection into pollution control programs.
In this effort ELI received partial funding under cooperative agreement with EPA's
Office of Policy, Planning and Evaluation (OPPE) and Office of Federal Activities (OFA).
The research approach and conclusions are those of ELI alone.
A. Agency's Obligations Under the Endangered Species Act
Federal agencies, including EPA, have four fundamental duties under the ESA-
Three of these are the affirmative commands of §7 to federal agencies: conserve, consult,
and confer. The fourth is the §9 prohibition that applies to all persons and public and
private entities: the prohibition against "taking" a listed species.2
1. The Duty to Conserve Listed Species
The duty to conserve is often overlooked by federal agencies, which tend to focus on
the formal "consultation" provisions of §7. Nevertheless, it is an affirmative duty, binding
on federal agencies and enforceable in the courts by citizen suit. Section 7(a)(1) provides
1
-------
that federal agencies "shall, in consultation with and with the assistance of the Secretary,"
use its authorities to carry out "programs for the conservation of endangered species and
threatened species listed pursuant to" the Act.3 The obligation to conserve is defined as
"the use of all methods and procedures which are necessary" to bring a species to recovery
so that it can be delisted.4 Section 2(c) of the ESA further provides that it is "the policy
of Congress that all Federal agencies shall seek to conserve endangered species and
threatened species and shall utilize their authorities in furtherance of the purposes of this
act. "5 The §7 duty to conserve threatened and endangered species by using other statutes
— such as the Clean Water Act or the Toxic Substances Control Act or the Federal
Insecticide, Fungicide, and Rodenticide Act - is independent of federal agencies' other
obligations under the ESA.
2. The Duty to Consult With the Fish and Wildlife Service and the National
Marine Fisheries Service
The §7 duty to consult has attracted more attention. It has, in fact, been the basis
for substantial litigation against federal agencies, including some recent cases against the
EPA. Section 7(a)(2) provides that "[e]ach Federal agency shall, in consultation with and
with the assistance of the Secretary, insure 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 its critical
habitat." Jeopardize the continued existence of means "to reduce appreciably 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" either directly or indirectly. This §7(a)(2)
requirement includes both the substantive command not to jeopardize, and a procedural
command to consult formally with the relevant agencies — the U.S. Fish & Wildlife Service
(FWS) or the National Marine Fisheries Service (NMFS) — so that species or habitats will
not be damaged by the agency action.
The procedural duty to consult works as follows: a federal agency authorizing,
funding, or carrying out an action must request from FWS or NMFS information on whether
any species listed or proposed for listing as threatened or endangered exists in the area of
a proposed action. For any "major construction activity" where a listed species may be
present, the action agency must prepare a "biological assessment" (BA) to determine
whether the species is likely to be adversely affected by the action.6 The action agency may
also prepare a BA for agency actions other than "major construction activities." The BA
provides the basis for consultation with the listing agencies, FWS and NMFS.
If an agency has prepared a BA that finds that a listed species or its critical habitat
may be adversely affected, the agency must formally consult with FWS or NMFS.7 Formal
consultation is not required if the BA concludes that the action "is not likely to affect" the
listed species or critical habitat, provided that the relevant agency (FWS or NMFS) concurs
with the BA. Even if an agency was not required to prepare a BA, it is still obliged to
consult with FWS or NMFS if its action "may affect" a listed species or critical habitat.
Informal consultation with FWS or NMFS may assist the action agency in structuring its
actions and in determining whether formal consultation will be necessary.
2
-------
In initiating formal consultation, the action agency must provide a description of the
proposed action, a description of the area affected, a description of listed species and critical
habitats that may be affected, relevant reports including the BA and NEPA documents,8
a description of how the action may affect the species or critical habitat, and an analysis of
cumulative effects. Formal consultation generally lasts 90 days, although in certain cases the
FWS or NMFS and the action agency may agree to an extension. FWS or NMFS must issue
a Biological Opinion (BO) within 45 days after consultation concludes, finding that the
action will or will not jeopardize the listed species, or will or will not adversely modify
critical habitat. During consultation, the action agency may not make any irreversible or
irretrievable commitment of resources that may foreclose the formulation or implementation
of any reasonable and prudent alternative measures.9
If the BO makes a finding of "jeopardy," it must suggest reasonable and prudent
alternatives to the action that will not violate §7(a)(2) (viz. that will not jeopardize the
species or adversely modify critical habitat). If there is a "no jeopardy" opinion, but the
proposed agency action will nevertheless result in the incidental taking of listed species,
FWS or NMFS will issue an "incidental take statement" specifying the terms and conditions
and measures under which the incidental take will be allowed. Finally, the BO may include
nonbinding advisory conservation recommendations to the action agency.
3. The Duty to Confer Regarding Proposed Species
When a species is not listed, but merely proposed to be listed, there is no formed
consultation requirement. Instead, the action agency has a duty to confer with the FWS or
NMFS.10 This duty does not limit an agency's commitments of resources during the period
of conference, but provides a critical opportunity for an agency to avoid potential problems
in the future. The requirement to confer is particularly useful where a final listing is
anticipated to occur while the agency action is in progress, partly because the shift to formal
consultation is easier. It is also quite helpful in identifying and preventing possible
unforeseen illegal "takes" of species in the future that could be avoided by changing the
agency action.
4. The Duty to Avoid Taking Species
Finally, the taking of listed fish and wildlife species is flatly prohibited except
pursuant to "incidental take statements" issued in accordance with a biological opinion, or
by special permit from the FWS or NMFS. This prohibition applies to individuals as well
as to government agencies. Liability for taking species is strict. 'Taking" includes
harassment, harm, pursuit, hunting, shooting, wounding, killing, trapping, capturing,
collecting, or attempting to engage in such conduct. Similar prohibitions apply to listed
plant species.
3
-------
B. Importance of the Endangered Species Act to EPA
The Endangered Species Act is binding on the EPA. There is no exception from any
of its duties for agencies engaged in environmental or other conservation missions. Thus,
at the most basic level, EPA must comply with its ESA obligations in order to conform to
the law. However, beyond this, EPA's mission to protect "the environment" clearly suggests
that the EPA should hold itself to the highest possible standard in satisfying the ESA's
requirements. EPA, as the federal "action agency" with the most undiluted environmental
protection mission, should set the standard for ail other federal agencies acting, in effect,
as a model of good ESA implementation. According to FWS, NMFS, and many EPA staff,
this has not been EPA's role to date.
In practice, the EPA has often been criticized for insufficient attention to its four
obligations under the ESA. Consultations with the FWS and NMFS have been infrequent
and in some programs, almost nonexistent. Both Services have found it difficult to impress
upon some EPA offices the fact that consultation is not optional. The conservation duty has
been seldom recognized by EPA, and the duty to confer on proposed species has often been
overlooked. Recent litigation against the EPA concerning a number of the agency's
delegated programs has refocused EPA's attention upon the ESA, In addition, the EPA's
renewed commitment to biological diversity and ecosystem protection makes it important
for the agency to ensure that its many programmatic activities do not adversely affect
threatened and endangered species and their habitats.
The legal duty to "conserve" species and critical habitats requires the EPA to engage
all of its available powers and authorities to protect and recover species. Carrying out this
conservation duty can provide further basis for the agency's use of its statutory authorities
to provide affirmative protection to ecosystems and biological diversity in a variety of
contexts.
In chapters 2 through 9, this study examines the EPA activities and opportunities for
action which most often should trigger staff attention to the goals and requirements of the
ESA. The list of activities analyzed is not exhaustive, but it provides a significant starting
point for incorporating protection of threatened and endangered species and their habitats
as an integral part of the EPA's regulatory programs.
C. Methodology and Scope
In undertaking this study, ELI first analyzed the major pollution prevention and
control laws that define EPA's diverse missions. Understanding the commands of the laws
themselves is key to assessing what agency actions and activities trigger the performance of
ESA duties. It is also essential in order for EPA managers and others to understand how
EPA can, as a practical matter, integrate improved ESA performance into its ongoing
program activities.
4
-------
ELI then conducted detailed interviews to develop an understanding of how the
agency's ESA obligations are carried out in practice. ELI interviewed EPA headquarters
and regional staff, FWS staff with experience dealing with EPA, members of the public and
advocates interested in endangered species protection, and officials of other federal agencies
subject to similar ESA obligations.
Both the analysis of the EPA statutes and the interviews generated substantial
information. The interviews themselves were conducted confidentially in order to obtain
useful information without targeting particular occurrences, individuals, or locations.
Chapters 2-9 of this report analyze each of the major laws administered by the EPA,
and many of the programs under those laws. Each chapter examines the following
categories of EPA actions deemed most likely to have impacts on threatened or endangered
species or their habitats:
~ Permits and related EPA approvals
~ Standard setting
~ Enforcement related activities
~ Delegating programs to states
~ Financial assistance
~ Information gathering
Although these six are not the only types Of EPA actions that may have ESA
implications, they provide a useful and consistent checklist for analysis of the agency's
obligations, as well as a good starting point for making improvements in future ESA
implementation.
Chapter 2 examines the Clean Water Act, Chapter 3 the Federal Insecticide,
Fungicide, and Rodenticide Act, Chapter 4 the Toxic Substances Control Act, Chapter 5 the
Resource Conservation and Recovery Act, Chapter 6 the Clean Air Act, Chapter 7 the
Comprehensive Environmental Response, Compensation, and Liability Act, Chapter 8 the
National Environmental Policy Act, and Chapter 9 the Safe Drinking Water Act, the
Emergency Planning and Community Right to Know Act, and the Pollution Prevention Act.
Actions triggering one or more of the ESA duties occur under all of these programs. In
addition, the EPA's §7 duty to use all of its authorities to conserve threatened and
endangered species applies to the administration of these diverse programs.
Chapter 10 examines the approach taken by other federal agencies to their ESA
obligations. It focuses on the U.S. Forest Service which, although a land management
agency, has substantial interactions with private sector users, and on the federal Office of
Surface Mining (OSM) which, like EPA, is a regulatory agency whose programs are
primarily administered by delegation to the states with federal agency oversight. Both the
Forest Service and OSM have experience in integrating ESA compliance into their
operations. The approaches of these agencies offer useful lessons for EPA, as well as for
state pollution control agencies.
5
-------
Chapter 11 looks at endangered species protection activities of California's pollution
control agencies. This review of various state authorities further illustrates the opportunities
for protecting species and habitat that are available to EPA and other federal and state
agencies.
Finally, Chapter 12 offers some conclusions about how EPA can improve its
performance and benefit the public through more effective species protection and species
recovery activities. Because state pollution control programs are often similar to EPA
programs, many of these findings are also applicable to state pollution control agencies
seeking to incorporate species and habitat protection into their functions.
D. General Observations Based on the Study
This study illustrates that many of the activities of pollution control agencies may
have impacts on threatened or endangered species and their critical habitats. These
agencies need to integrate ESA compliance and conservation of species and habitats into
the day-to-day administration of their programs, as well as into their broad rulemaking
decisions, and their general mission of environmental protection. ELI findings on how EPA
can better protect species and habitats are outlined in detail in Chapter 12. These findings
also suggest ways that state pollution control can use their authorities to protect endangered
species and habitats. A few general observations are offered here to guide the reader.
First, ELI finds that a critically needed step is for EPA to make a commitment to
protection and conservation of threatened and endangered species and their habitats, to
make that commitment at a high level in the agency and in each of the Regions, and to
communicate that commitment throughout the agency's programs.
Second, in order for this commitment to result in improved performance, ELI
believes that it will be necessary for EPA to commit resources — skilled personnel,
management time, and equipment — to understanding the range of biological diversity and
species impact issues identified in this study and encountered by EPA in the course of its
many diverse programs. EPA can also obtain information on species and habitat impacts
from permittees and registrants, in order to maximize the use of agency resources to address
T&E species issues.
Third, ELI finds that EPA needs to educate its staff about ESA requirements and
obligations. This commitment to education is particularly necessary to overcome the fairly
common misconception, reflected in the comments of one agency staffer, that endangered
species protection is something to be "balanced" by EPA with other factors. This kind of
balancing approach, while common in the statutes administered by EPA, does not recognize
that the ESA imposes mandatory obligations on the agency. This misunderstanding, unless
corrected, is almost certain to result in ESA violations by EPA.
6
-------
Fourth, in order to take efficient and early advantage of the expertise of other
government agencies, ELI recommends that EPA headquarters and regional offices establish
ongoing, multiple staff-level working contacts with the FWS and NMFS. Similar contacts
with other agencies that deal regularly with ESA issues will also help EPA in its own
performance of ESA duties. In short, EPA personnel should be able to recognize when
ESA duties are triggered, and know what to do next. They should become comfortable
contacting the species-listing agencies frequently and informally. Establishing good
communications should take place so that informal conferring and formal consultation can
be effectively utilized in appropriate situations, and initiated whenever each is needed. ELI
finds that limiting FWS and NMFS contacts to one or more designated EPA staffers in each
region is counterproductive to good ESA compliance and to EPA's effective performance
of the "conservation" mandate of the law.
Finally, ELI finds that EPA should be careful to require protection of threatened and
endangered species and their habitats in all of its delegated state programs. Both EPA
actions to amend or promulgate regulations setting the conditions for state program
approvals and EPA's approval of specific state program delegations may constitute actions
"authorized, funded, or carried out" by the EPA for which §7 consultation may be required
where listed species or critical habitats may be affected. Moreover, the terms of a state
program delegation may affect the viability or recovery of listed species and habitats. While
formal §7 consultation may not be required where a state, rather than EPA, is the entity
issuing a pollution control or other permit, nevertheless, state programs are approved by
EPA on the basis of their providing equivalent protection to the environment. The duty of
federal agencies under ESA §7 and §2, to use all of their authorities to conserve threatened
and endangered species, means that EPA must ensure that state programs which it approved
are not designed and operated in ways that may result in adverse impacts on listed species
and critical habitats. The link between EPA's duties under the ESA and its state program
delegations and oversight actions deserves substantial attention by the agency.
7
-------
CHAPTER TWO
CLEAN WATER ACT
The Clean Water Act (CWA or Act) was adopted to "restore and maintain the
chemical, physical, and biological integrity of the Nation's waters."11 The Act provides a
system for regulating pollutant discharges by imposing a national permit requirement and
by regulating other activities, such as dredging and filling, that adversely affect water quality.
The link between water quality and threats to endangered species is well established.
Studies indicate that a significant proportion of threats to species arise out of water
pollution, which affects species directly as well as indirectly through adverse modification
of habitat. Numerous threatened and endangered species listed under the ESA are on the
list specifically because of water quality related problems; examples include the concho
water snake,12 boulder darter,13 Cape Fear shiner,14 Cahaba shiner,15 and the Little
Kern golden trout.16
Many of these threats can be minimized by appropriate use of the CWA's permitting
authorities. EPA can impose permit conditions or even deny permits where the proposed
activity would result in unacceptable levels of water quality degradation. The Act also
provides a wide range of authorities allowing EPA to gather data and to contribute financial
assistance where appropriate; under these authorities, the agency can impose conditions,
deny assistance, or withhold assistance previously given if threatened and endangered (T&E)
species or their habitat are insufficiently protected or if the agency finds that there has not
been compliance with the ESA.
I. PERMITS AND OTHER RELATED APPROVALS
A. NPDES Permit Program
At the core of the CWA's scheme for controlling "point source" pollution is the
National Pollutant Discharge Elimination System (NPDES); the Act prohibits the "discharge
of any pollutant" except as authorized by an NPDES permit.17 The Act allows states to
submit NPDES permit programs for approval by EPA; most states have been delegated
NPDES permit program authority by EPA.
Threatened and endangered species potentially could be affected by the issuance of
NPDES permits allowing discharges that adversely affect listed species or their habitat.
Although the issue remains unresolved, NPDES permitting, even if carried out by a state
whose program has been approved by EPA, arguably may constitute an action "authorized,
funded, or carried out" by EPA under §7(a)(2) of the ESA, because state permit conditions
are governed by EPA's regulations and EPA maintains oversight responsibilities for state
programs. Because the CWA directs EPA to prescribe state permit conditions to ensure
compliance with the CWA,18 EPA is responsible for implementing the ESA through its
8
-------
actions to issue and approve NPDES permits and state programs only when sufficient
conditions are imposed to ensure consistency with the ESA.
Although water quality clearly can have impacts on T&E species and their habitat,
threatened and endangered species generally are not considered explicitly by EPA during
the NPDES permit review process, even when EPA itself issues the permits. Thus, while
provisions of the NPDES permit program allow for broad consideration of environmental
concerns, including T&E species, changes in NPDES program operation and policy guidance
may be needed to address adequately ESA concerns.
General water quality permits are an issue of wider concern. With EPA's promulga-
tion of stormwater general permits, many construction activities across the country now have
a federal component and could be subject to ESA requirements. Initial interpretations by
some EPA regions and headquarters on the scope of stormwater general permits considered
only the direct effects from the discharge, as opposed to indirect effects resulting from
activities associated with the discharge such as site clearing.
This interpretation conflicts with both FWS policy and the ESA regulations. The
FWS regulations specify that the "effects" of an action are to be considered when determin-
ing whether the action is likely to jeopardize the continued existence of a listed species.
Indirect effects are included within the definition of "effects" to cover effects of future
activities that are induced by the current action subject to consultation as well as those that
occur after an action has been completed.19
Additionally, "cumulative effects" are defined by the FWS regulations as effects of
"future State or private activities, not involving federal activities, that are reasonably certain
to occur within the action area of the Federal action subject to consultation. When
considering amendments to the ESA regulations in 1986, FWS rejected arguments that few
federal agencies have the capability to recognize or assess cumulative effects of state or
private actions contemporaneously with conducting a §7 consultation. Because each federal
agency must already comply with the mandate of the National Environmental Policy Act
(NEPA) to consider cumulative impacts, FWS concluded that it is the individual agency's
responsibility to develop this information.21
To comply with the ESA, EPA can improve the NPDES permitting process with
respect to species and habitat protection by very carefully reviewing NPDES permits that
it issues for possible direct or indirect impacts on T&E species. More generally, EPA can
develop a uniform approach to applying the ESA during the NPDES permitting process,
whether handled by the states or EPA itself. This process could involve consulting
informally with FWS and NMFS more frequently, identifying resources for conducting
biological assessments where necessary, providing a mechanism for incorporating those
assessments into the permit issuance process, and preparing permit conditions that
implement any measures necessary to mitigate adverse impacts to threatened and
endangered species or their habitats.
9
-------
EPA and the Fish and Wildlife Service have taken a step toward strengthening this
process by agreeing to develop a Memorandum of Understanding between agencies. The
MOU would improve coordination between EPA and FWS by providing a more systematic
approach to involving FWS in the NPDES permitting process. EPA should also provide
specific training on ESA rules and procedures for federal and state NPDES permit program
staff, especially permit writers, to furnish them with an adequate understanding of the ESA
§7 process: what it involves, when it is triggered, and when a formal as opposed to an
informal consultation is warranted. Rather than analyze issues on a permit-by-permit basis,
the EPA and the states need to consider indirect and cumulative impacts on T&E species,
especially in areas that already have impaired waterbodies.
For new dischargers, EPA has authority under CWA §402(a) and (d) and ESA
§7(a)(2) and (d) to deny permits — or object to a state permit — if the activity sought to be
permitted has the potential to degrade critical habitat or contribute to the loss of T&E
species. For existing dischargers, EPA could require that, prior to approval, the states send
draft permit renewals to FWS or NMFS, as appropriate, and state wildlife agencies for their
review and comment on potential impacts on T&E species or their habitats.
Both EPA and state NPDES permit terms and conditions are governed by EPA
regulations.22 The regulations contain a number of standardized conditions that are
included in all NPDES permits, whether the permit is issued by EPA or a state with a
delegated program.23 EPA could amend the existing boilerplate permit condition
regulations to require certain minimum actions designed to protect T&E species. NPDES
permits often contain other provisions, such as compliance schedules and enforcement
stipulations, that EPA could also utilize to promote ESA goals.
B. Dredge and Fill Permit Program
EPA's role in the §404 dredge and fill permit program is somewhat different from
its role in the NPDES program because §404 permits are issued by the Army Corps of
Engineers. The CWA authorizes EPA to review individual dredge and fill permit
applications, however, and the two agencies have developed procedures to clarify each
other's responsibilities. Section 404 has become a crucial tool in habitat protection due to
its application to the nation's wetlands. As with the NPDES program, §404 authorizes
delegation of the program to individual states.
Section 404(a) of the Act authorizes the Corps to issue permits, after notice and
comment, for the discharge of dredged or fill material into navigable waters at specified
disposal sites.24 The Corps is required to designate the disposal site for each permit issued,
subject to guidelines developed by EPA.25 The Corps may issue general permits on a
statewide, regional, or nationwide basis for any category of activities involving dredged or
fill materials if the activities are similar, will cause only minimal adverse environmental
effects when performed separately, and will have only minimal cumulative adverse effects.26
A general permit cannot be issued for a period greater than five years and may be revoked
or modified by the Corps if it is determined that the authorized activities do in fact have an
10
-------
adverse impact on the environment or that the activities would more appropriately be
addressed by individual permits.27 General permits under §404 are not applicable if the
proposed activity potentially involves harm to a listed species or critical habitat; in these
circumstances, the applicant would have to follow procedures for an individual permit.
Section 404(c) of the CWA authorizes EPA to restrict or even prohibit the disposal
of dredged and fill material at a specified location — in other words, to "veto" the Corps'
proposed permit.28 Factors EPA must consider include whether the discharge of the
materials into the area will have an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas, wildlife, or recreational areas. Thus, potential adverse
impacts on T&E species or their habitats would justify an EPA veto.
Section 404(f) delineates exemptions to the requirement for a dredge or fill permit.
These exemptions include discharges of dredged or fill material resulting from farming,
silviculture, and ranching activities; maintenance and emergency construction of structures
such as dikes and levees; maintenance or construction of stock ponds or irrigation ditches;
construction of temporary sedimentation basins; maintenance or construction of farm roads
or forest roads constructed in accordance with best management practices; and activities in
a state that has an approved program pursuant to CWA §208(b)(4), 33 U.S.C.
§ 1288(b)(4).29
Regulations implementing the §404 program contemplate the presence of T&E
species in areas where the program applies and provide direction for agency action. The
regulations expressly state, for example, that discharge of dredged and fill material is not
permitted if the discharge would jeopardize the continued existence of listed species or
would significantly modify their habitat.30 The major potential impacts on T&E species
of the discharge of dredged or fill material include covering or otherwise directly killing
species; impairment or destruction of habitat; and facilitation of incompatible activities.31
Additionally, the regulations direct that sites having unique habitat or providing habitat for
threatened and endangered species should be avoided when considering where to place
dredged and fill material.32
Species-related concerns are probably more institutionalized in the §404 program
than in many other EPA programs, because the program's very basis is habitat protection.
ESA-related activity in the §404 program does vary among EPA regions, however. Often,
ESA compliance activity related to the §404 program is in the area of grant review and
evaluation of planning documents. As a general rule, EPA reviewers of draft §404 permits
attempt to consider impacts of a proposed project on threatened and endangered species,
but the degree to which this is done varies. Existing procedures for evaluating draft permits
issued under the program may not adequately address threatened and endangered species
issues, and it is not clear that EPA staff currently have the appropriate level of
understanding of the issues to evaluate properly draft permits for potential impacts on T&E
species or habitat.
11
-------
In some cases, although FWS or NMFS have expressed concerns that issuance of a
permit could adversely affect T&E species, EPA has not objected to the Corps' proposed
permits. Yet EPA could exercise its §404(c) veto authority or its ability to elevate disputes
pursuant to the §404(q) MOA with the Corps, in order to protect T&E species and their
habitats and respond to FWS or NMFS concerns. EPA needs to conduct its own second
line of review of draft §404 permits to determine whether the permits meet §404(b) guide-
lines, and especially whether T&E species or habitats will be adversely affected. EPA may
wish to review its MOA with the Corps of Engineers to determine whether the agreement
incorporates the appropriate level of and mechanisms for coordination and communication
between the agencies. It should be easier for the agency to use §404(q) as a means of
incorporating ESA concerns and resolving permitting conflicts, rather than resorting to
§404(c).
Nationwide or general permits under §404 may give rise to many of the same ESA
problems as the NPDES program. There are ESA implications because dredge and fill
activities that fall within the parameters of a general permit do not receive the
particularized scrutiny by the Corps or EPA that individual permit applications do; thus,
activities potentially harmful to T&E species could easily slip through the cracks. Although
general permits have a condition negating their applicability if T&E species are present,
there is no built-in mechanism for EPA or the Corps to inform the permittee that T&E
species are present. Some general permits, however (e.g., for wetlands restoration), require
the permittee to give notice to the Corps before engaging in the permitted activity; thus, the
Corps could notify EPA or the Services of potential problem situations.
Habitat protection and enhancement may be the single most effective way for EPA
to contribute to T&E species protection. The §404 program offers many opportunities for
EPA to assert protection for T&E species and to influence habitat-related activities, because
the agency is not only involved in the permitting process but also in wetlands mitigation and
restoration.33
There is room for improvement in EPA's interpretation of §404(f) exemptions. EPA
can minimize conversion of wetlands (and thus minimize adverse habitat modification) by
narrowing the range of exemptions granted under this provision. For example, EPA's
regulations have broadly defined "normal silviculture" and thus produced many §404(f)
exemptions which have become a leading cause of wetlands loss in the southeast. To reduce
future wetlands conversions, EPA could also work with FWS and NMFS to establish a
database of wetland sites inhabited by T&E species. This database could be used during
review of §404 permits or general NEPA review to consider threatened and endangered
species in a more comprehensive, thorough manner.
Other areas in which EPA could make a positive contribution include reviewing
proposed Corps civil works projects and providing active oversight of delegated state dredge
and fill permitting programs to ensure that permits are not granted when T&E species
would be adversely affected. EPA can have a positive impact on wetlands issues by
12
-------
incorporating biological diversity and threatened and endangered species concerns into its
review of the Corps' permitting process. EPA's objections to permits and approval of
wetlands restoration projects could be guided by the degree of their potential benefits to
threatened or endangered species.
The need for ESA training related to the §404 program has been recognized in many
EPA regions. Conflicts between EPA and FWS and between EPA and NMFS regarding
T&E species in wetlands areas might be significantly reduced with improved knowledge
among personnel in EPA, the listing agencies, the Corps of Engineers and the states.
Agency staffs need to learn specific procedures that should be taken to ensure compliance
with the ESA on all aspects of the §404 permitting program.
II. STANDARD SETTING
Although the states have primary responsibility for setting water quality standards
under the CWA (subject to EPA approval), EPA has authority to ensure that the states'
water quality standards protect T&E species by exercising appropriate oversight and
providing sufficient guidance. The CWA provides a "preventive ecosystem" approach
supported by many people, both inside and outside EPA. This approach to species
protection can be pursued through setting appropriate water quality standards. Data
indicate that a significant number of threats to listed species derive from water quality
concerns.34
A. Water Quality Standards
Water quality standards establish the desired condition of a particular waterway. The
CWA requires that NPDES permits contain limitations more stringent than the applicable
technology-based limitations if necessary to ensure that receiving waters achieve their
assigned water quality standard.35 Thus, water quality standards provide a means for
regulating point sources "despite individual compliance with effluent limitations, ... to
prevent water quality from falling below acceptable levels."36
Water quality standards adopted by the states have become an important tool for
regulating point source discharges and can aid in T&E species protection. State water
quality standards have two components, designated uses for state waters and criteria to
achieve and protect those uses. They must be submitted to EPA for approval.37 EPA has
also implemented a third component, an antidegradation policy which mandates that water
quality for existing water uses be maintained.38 Unlike technology-based effluent limita-
tions, water quality standards are not developed based on an evaluation of the capability of
pollution control technologies, but rather on the physical attributes of a stream to support
the designated use.
13
-------
The CWA requires that water quality standards consider protection and propagation
of fish and wildlife.39 Water quality criteria to protect the designated uses may be
pollutant-specific numeric limits, in narrative form, or other types such as biological limits.
EPA's criteria for water quality are not enforceable limits, but rather serve as scientific
guidance for the states, which must either adopt EPA's criteria or come up with other
scientifically valid criteria as part of their water quality standards.40 For waters that have
multiple uses designated, the criteria "shall support the most sensitive use."41 Moreover,
the CWA directs EPA to develop water quality criteria that reflect the latest scientific
knowledge of "the effects of pollutants on biological community diversity."42 Thus, the Act
already incorporates requirements for EPA to consider impacts on T&E species and to
require that states also adopt standards and criteria that will protect listed species.
Currently, EPA requires each state to have an antidegradation provision in its water
quality standards that, at a minimum, complies with the following conditions:
• Existing uses and the level of water quality necessary to protect existing uses
in all segments of a water body must be maintained;
• If the quality of the water is higher than that necessary to support propagation
of fish, shellfish, other wildlife, and recreation, it is to be maintained and
protected unless the state finds that lowering the water quality is justified by
overriding economic or social concerns;
• If the waters have been designated as outstanding natural resource waters, no
permanent degradation of water quality is permitted 43
Degradation of existing water quality can implicate ESA concerns whenever the
habitat of T&E species may be involved. Under EPA's authority and responsibilities to con-
serve species under the ESA, EPA should properly oversee promulgation of state water
quality standards, including the antidegradation provision.44
EPA's existing antidegradation policy does address some of these concerns already
because it requires that plants and animals in a waterbody be protected whether or not they
are large in number or importance. It also directs that water quality must not result in
mortality or significant growth or reproductive impairment of resident species.45 This first
requirement could be amplified by EPA to incorporate concerns for protecting T&E species.
The agency must also take steps to ensure that antidegradation provisions are actually
implemented by the states.46
Currently, some EPA regions do conduct informal consultations or otherwise
communicate with FWS and NMFS when preparing to promulgate federal water quality
standards or when reviewing proposed revisions to state water quality standards. EPA
communication with the Services is also advisable when considering state or federal water
quality criteria or issuing guidance on these issues. Because the states must review their
14
-------
state water quality standards at least once every three years and submit revisions, if approp-
riate, to EPA for approval,47 EPA has significant authority to ensure state compliance with
ESA goals.
Multi-agency efforts regarding water quality standards are underway that should
continue to be encouraged and improved. A number of EPA regions adhere to the
principles and procedures in the now defunct July, 1992 agreement between EPA, FWS, and
NMFS relating to evaluation of water quality impacts on T&E species. The agreement
provides that the first phase in consultation among the three agencies is informal consul-
tation at the national level regarding aquatic life criteria published by EPA under CWA
§304(a). EPA will prepare a biological assessment evaluating whether any of the criteria
are likely to affect adversely a listed threatened and endangered species; NMFS or FWS will
indicate whether it concurs.48 Formal consultation will only proceed if it is found that a
criterion is likely to adversely affect a listed species.49 The agreement also commits EPA
to engage in additional consultation regarding other aspects of a state's water quality
standards when circumstances render such consultation necessary to comply fully with §7.50
Because many states adopt EPA's recommended criteria as part of their water quality stan-
dards, informal consultation at the national level may alleviate concerns and minimize
conflicts involving the criteria underlying individual state water quality standards.
Another opportunity for improvement would be for EPA to issue biological water
quality criteria (e.g., the appropriate quantity of algae). Such criteria could go a long way
towards preventing additional degradation of water quality adversely affecting T&E species.
B. Total Maximum Daily Loads
Section 303(d) of the CWA provides for states to identify waters for which applicable
technology-based effluent limitations are not stringent enough to implement approved water
quality standards.51 It requires that a priority ranking for these "water quality limited
segments" be established, and provides for establishment of "total maximum daily loads"
(TMDLs) for pollutants for which those waters are not in attainment with water quality
standards.52 A TMDL is the maximum amount of a pollutant that a water quality limited
segment can receive daily without violating the state's water quality standard for that
pollutant.
Establishment and subsequent implementation of TMDLs for a particular pollutant
can help to protect T&E species and their habitat. Because TMDLs can be established for
a particular waterbody, localized water quality problems adversely affecting a listed species
or its habitat may be amenable to mitigation through use of TMDLs. The impact of
designating a TMDL can be significant. If a technology-based limitation is inadequate to
prevent a water body from exceeding its water quality standards, then the applicable NPDES
permits must be adjusted according to the "total maximum daily load" that may enter the
water without compromising the water body's use. These modifications must occur even if
permittees are in compliance with their existing permits.
15
-------
In the initial instance, each state is required to identify the water quality limited
segments within its borders.53 EPA must either approve or disapprove a state's list and
priority ranking within 30 days of submission; the agency is further required to establish its
own list and priority ranking if it disapproves a state's list.54 At least one court has found
that the CWA requires EPA to identify water quality limited segments if a state's submis-
sions are inadequate or if a state has not taken action.55 The court also concluded that
EPA has a nondiscretionary duty to promulgate TMDLs for waters designated as water
quality limited segments if a state fails to do so.56
EPA should ensure that the states designate water quality limited segments where
they have not already done so. TMDLs for priority pollutants should be established. By
working with the Services and the states, EPA can help assess which water bodies may
require priority consideration to prevent adverse affects on listed species and their habitats.
C. Toxic and Pretreatment Effluent Standards
Congress established a comprehensive program for toxics control in the 1987 Clean
Water Act amendments, requiring the development of individual toxic control strategies.57
Although the states, not EPA, are required to take action in the first instance to identify
waters where technology-based control and existing water quality-based controls are
inadequate to meet water quality standards due to toxic pollutants, EPA's mandated
oversight role has direct ESA implications.
Because EPA must either approve or disapprove each state's control strategies, or
else prepare a federal individual control strategy, EPA bears responsibility for ensuring
that state control strategies do not jeopardize T&E species. Additionally, EPA is expressly
directed to establish guidance to the states to be used for identifying waters subject to
individual control strategies.59 On preparing or revising that guidance EPA can implement
the ESA by providing criteria that take into consideration water quality impacts on T&E
species and their habitats.
III. ENFORCEMENT RELATED ACTIONS
The extent to which EPA effectively enforces the CWA's requirements is critical to
protecting T&E species and their habitats. A state's improper administration of an EPA-
approved permit program, for example, could have significant impacts on water quality that
might adversely affect T&E species or their habitats. An individual state may have primary
enforcement responsibility under the CWA if EPA finds it has met certain minimum statuto-
ry criteria for any given program. If a state does not have an approved program in a given
area, EPA has primary enforcement responsibility. Failure by EPA to enforce appropriately
CWA provisions that affect T&E species may also leave the agency open to citizen suits
under CWA §505, which authorizes members of the public to commence a civil action
against any person (including the federal government) in violation of an effluent standard
or order, or against EPA for failure to perform nondiscretionary duties.60
16
-------
Upon receiving information from any source about an alleged violation of the Act
or a permit issued under the Act, EPA has several choices. Whenever EPA discovers that
a person has violated the CWA or the terms of a CWA permit, the agency may either issue
a compliance order or bring a civil enforcement action.61 If the violation is of a condition
or limitation in a state NPDES or state dredge and fill permit, EPA may take enforcement
action itself or notify the state and allow the state an opportunity to take action first.62
With the 1987 amendments, the CWA now provides for stiffer criminal penalties and
more closely resembles the Resource Conservation and Recovery Act.63 Congress
specifically endorsed and encouraged the use of civil penalties collected by the government
as part of settlement and other enforcement actions "to fund research, development and
other related projects which further the purposes of the Act."64 This statement could
support the use of civil penalties for habitat enhancement or restoration projects or other
undertakings pursued in furtherance of ESA goals. The 1987 amendments enhance EPA's
ability to use its enforcement authorities as a tool for ESA compliance.
The CWA establishes maximum and minimum penalties for various categories of
violations. The statute delineates factors for EPA or a court to consider when determining
a civil penalty. These factors include the seriousness of the violation, any economic benefit
resulting from, the violation, the violator's compliance history and good faith efforts to
comply, the economic impact of the penalty on the violator, and other factors as justice may
require.65 This list is broad enough to allow EPA to weigh effects on T&E species or
habitat when assessing penalties.
CWA enforcement authorities can also be found in individual program descriptions.
EPA may bring its own enforcement actions even if a state has an approved NPDES or
dredge and fill permit program.66 Elsewhere, §404(s) requires the Corps of Engineers to
issue a compliance order whenever it finds that a person has violated a dredge and fill
permit. EPA data indicating §404 violations should be used to help the Corps in this
area.67
EPA can ensure maximum protection of T&E species by better targeting its own
enforcement resources and negotiating pollution prevention requirements in consent
agreements. EPA can strengthen enforcement by improving monitoring efforts, coordinating
outreach to teach the public and regulated community about the consequences of activities
such as illegal filling of wetlands, and more effectively targeting field activities to detect and
address violations. Particular areas of concern are any discharges to critical habitats. EPA
should increase and improve its coordination and communications with the Corps of
Engineers given the two agencies' dual enforcement responsibilities for the §404 program.
Some of these activities are already occurring. The Office of Water, for example, has
established as a priority increased enforcement with the goal of reducing risks to human
health and the environment, especially critical habitat areas. The Office has stated that it
intends to expand enforcement actions against industrial dischargers and municipal sewage
17
-------
treatment plants that violate requirements of their pretreatment programs, strictly enforce
prohibitions on discharges of certain bioaccumulative pollutants in the pretreatment pro-
gram, and work towards improving civil penalty procedures.68
To address concerns that some states are not complying with CWA requirements
regarding water quality standards, EPA should target enforcement actions against those
states. Where necessary, the agency should move forward and promulgate federal water
quality standards without delay, as it is doing in the San Francisco Bay/Sacramento Delta
area, and work with the Services in designing these standards. In the Bay/Delta case, EPA
moved in quickly when the state failed to cany out its responsibilities to promulgate water
quality standards. Current informal consultations with FWS and NMFS likely will result in
water quality standards that will not have adverse impacts on the continued existence of the
two species' populations of concern.69 The Bay/Delta federal water quality standards
promulgation is an example of an apparently successful interagency coordination project.
IV. DELEGATION OF PROGRAMS TO STATES
Under the CWA, EPA may delegate its authority to the states to implement certain
programs, such as the NPDES permit program or the dredge and fill permit program.70
EPA's delegation authorities affect the agency's responsibilities under the ESA in at least
two ways. First, EPA's criteria for state program delegation need to ensure that ESA
requirements are satisfied. To implement its ESA obligations meaningfully, EPA should
require state NPDES and dredge and fill programs to include a provision requiring
compliance with the ESA or have a provision in the delegation for permits to bounce back
to EPA in circumstances when T&E species are involved. Second, even after delegation
EPA must maintain oversight as necessary to ensure that states comply with federal require-
ments, including the ESA. As a practical matter, it appears that delegation results in very
little federal oversight; EPA currently exercises little control with respect to T&E species
once a program has been delegated. In fact, EPA seems to have little knowledge about
ongoing T&E species protection in delegated state water programs and thus has little
capacity to act or influence a state when a particular crisis arises.
If EPA determines that a state with primary enforcement responsibility has not
carried out its delegated responsibilities under the CWA, EPA may either assume enforce-
ment responsibilities or rescind state program approval.71 Because EPA may rescind
program approval if the state fails to comply with federal law, the agency can use continued
delegation as a means to ensure compliance by the states with the ESA.
A. NPDES Permit Program Delegation
A state desiring to administer its own NPDES permit program may submit to EPA
a description of the program it proposes to establish. EPA must approve a state's NPDES
permit program if the state demonstrates that it has adequate authority to administer the
program in accordance with CWA requirements.72 EPA may also approve a partial state
18
-------
permit program.73 EPA needs to review program proposals very carefully to ensure that
the state does in fact have the capability and adequate authorities to comply with the ESA.
Even where a state has received approval to issue NPDES permits, individual permit
applications and proposed permits must still be submitted to EPA for review.74 EPA is
not required to approve state permits, or even to review each and every permit; it may
decline to review any individual permit. The agency may also decline to review entire
categories of state permits, thereby waiving the requirement that the state forward these
permits to EPA for review.75
It is not clear whether EPA inaction in the form of declining to review a state-issued
NPDES permit constitutes a federal "action" that triggers EPA's responsibilities under the
ESA. A state may argue that T&E species issues in the context of an NPDES permit are
a federal responsibility because the ESA is a federal law. EPA, however, maintains that
consideration of these issues is not its responsibility because the NPDES program has been
delegated to the state. The result may be that no one assumes responsibility for ESA
compliance. Where EPA retains some oversight authority, however, there is an argument
that ESA responsibilities remain with EPA. A case that was settled earlier this year raised
the issue of EPA's responsibility under the ESA to consult with the FWS in reviewing state
water quality standards. The plaintiffs in Mudd v. Reilfy argued that EPA must comply with
the ESA's §7(a)(2) consultation requirements whenever EPA chooses not to object to a
state-issued NPDES permit, even though the CWA does not require EPA approval of state
permits.76 On the other hand, when EPA retains NPDES program authority itself, there
can be no question that it has full responsibility for ESA compliance.
B. Dredge and Fill Permit Program Delegation
A state may submit to EPA for approval a dredge and fill program that it wishes to
administer under state law.77 The state must provide evidence that it has legal authority
to carry out the proposed program. EPA must approve a state's §404 permit program if the
state demonstrates that it can administer the program in accordance with CWA
requirements.
Because dredge and fill permits so clearly implicate wildlife and habitat concerns,
EPA provides a copy of the proposed program to FWS and the Corps for their com-
ments.78 Using these comments, EPA must determine whether the state will be able to
issue permits that assure compliance with the federal §404 guidelines and other CWA
requirements and to enforce violations.79 If EPA determines that the proposed state
program meets these conditions, it must approve the program.80 Failure by EPA to make
a determination within statutory deadlines results in automatic approval of the program.
EPA must withdraw program approval if the state fails to administer its program in accor-
dance with CWA requirements.81
19
-------
New Jersey's application for §404 program delegation is pending and is currently the
subject of informal consultation between EPA Region 2 and FWS. The agencies are
considering adopting an MOA between EPA, FWS and the state of New Jersey covering
how the state will address T&E species issues in its §404 program. Although one state
(Michigan) has a §404 program in place, New Jersey represents the first ESA consultation
over EPA §404 state program approval. As of the Fall of 1993, the agencies do not agree
over what mechanisms are necessary to ensure protection of T&E species and habitat, and
it is uncertain whether an agreement will be reached prior to EPA's December 1993
deadline for making a decision on New Jersey's application.
Individual state permit applications must be submitted to EPA for review even if a
state has an approved dredge and fill permit program.82 EPA provides copies of the pro-
posed state permits to FWS and the Corps, and may object to a permit. If EPA objects, the
state must submit a revised permit satisfying EPA's objections. If the state does not modify
the permit to EPA's satisfaction, EPA may issue a federal dredge and fill permit. As with
a delegated NPDES permit program, EPA is not required to approve state permits, or even
to review every permit; it may decline to review any individual state permit or any category
of state permits.83 EPA has 30 days from receipt of the draft permit to notify the state if
it intends to comment on a proposed permit.84 The agency has an additional 60 days in
which to provide those comments, including any comments that FWS and the Corps may
have. Given past experiences, however, EPA may have difficulty complying with the ESA
consultation requirements within the time period envisioned in the delegation provision.
Nevertheless, this comment process provides another opportunity for EPA to ensure that
the ESA is properly implemented.
V. FINANCIAL ASSISTANCE
A. Nonpoint Source Management
Section 319 of the CWA establishes a national policy and delineates programs for
control of nonpoint sources of pollution.85 Nonpoint source pollution generally results
from land runoff, precipitation, atmospheric deposition, drainage, or seepage. Technically,
the term "nonpoint source" means any water pollution source that is not a "point source"
within the meaning of the CWA. Significantly, agricultural stormwater discharges and return
flows from irrigated agriculture have not been considered point sources and thus have not
been subject to regulation in the past.
Nonpoint source loads on water bodies are a major concern in the context of overall
water quality. Recent data gathered by the U.S. Geological Survey indicate that nonpoint
sources contribute six times the amount of point source loads; many studies and surveys
conducted by EPA and state agencies support this conclusion. The task of controlling
nonpoint source loading is difficult, due both to the disparity in regulation and to the cost
of removing pollutants such as nitrogen from the water system. There is no doubt that the
cost of nonpoint source control will run into the billions of dollars.
20
-------
Under §319, the states are required to assess nonpoint source pollution problems and
causes within their borders, adopt management programs to control the identified nonpoint
source pollution problems, and implement the management programs. EPA's authority
under §319 is primarily in the form of authority to give money. EPA may grant monies to
states or groups of neighboring states for implementation of nonpoint source pollution
programs, including groundwater protection activities, as part of the nonpoint source
pollution control program. EPA must also take affirmative action to approve or disapprove
state reports and programs affecting nonpoint source pollution. The agency can delineate
measures or provisions necessary for approval if the report or program is found
inadequate.86
Through its authority under the CWA to grant funds for nonpoint source pollution
control programs, EPA can encourage the states to use their police power to prevent
adverse alteration of habitat for T&E species. State nonpoint source pollution management
programs must be approved by EPA ; EPA could use its grant authority in a pro-active
manner to protect T&E species from nonpoint source pollution by withholding or condi-
tioning program approval. Because program approval is necessary for a state to receive
grant monies,88 EPA can withhold approval if a program fails "to satisfy, in whole or in
part, the goals and requirements" of the Act.89 Additionally, the agency can direct its
attention to oversight and careful scrutiny of existing state programs as the programs are
updated.
Additional guidance from EPA in the nonpoint source pollution area could have
beneficial impacts on T&E species management. EPA needs to provide guidance for the
states on adequate nonpoint pollution management programs that specify protective best
management practices for activities that unfavorably affect water quality and which could
adversely affect listed species or alter species habitat. EPA could aid the states by
developing criteria applicable to nonpoint source pollution impacts, which the states could
use in establishing water quality standards. One step in this direction is the Office of
Water's goal of giving priority to pollution prevention activities such as nonpoint source
programs that focus on visible results through watershed management.90
B. Treatment Plant Construction Grants and State Revolving Funds Program
The 1987 Amendments to the CWA provided $18 billion in grants and loans for
construction of wastewater treatment plants.91 This money is divided between direct
project grants and capitalization of state loan programs through the use of revolving funds
(state revolving fund or SRF program).92 With the advent of the SRF program, the
construction grant program — which existed for some time prior to 1987 — is being phased
out. Although there will still be some ongoing construction grant funding with carryover
funds, the SRF program is now the primary source of local financial assistance.93 Because
either a direct grant or a loan requires that EPA reach an agreement with the state on use
of the money, both programs can involve ESA issues. EPA grants for construction of
treatment facilities, for example, can promote or support development in environmentally
sensitive areas such as wetlands and floodplains, where many T&E species live.
21
-------
Wastewater Treatment Plan Construction Grants
Before any final action may be taken on construction grant specifications for a
wastewater treatment plant, EPA must enter into a written agreement with a grant
applicant. The agreement must specify which project items are eligible for federal
payments.94 EPA's regulations governing the construction grant program attempt to
prevent development in inappropriate areas such as wetlands or floodplains. The regula-
tions require, for example, that grant conditions be imposed to restrict the extension of
sewage facilities into environmentally sensitive localities.95 Applicants under the construc-
tion grant program are required to state whether or not T&E species are present at the
proposed project site. EPA could also require that applicants disclose whether listed species
are present downstream or elsewhere where they might be affected by treatment plant
operations.
EPA usually considers construction grant applications through the NEPA process;
T&E species issues thus can be incorporated at this stage. If informal consultation indicates
that threatened or endangered species are present, the grant applicant prepares a biological
assessment (under direction from EPA). EPA will review the assessment and then transmit
it to FWS or NMFS, depending on the species involved. If the assessment indicates that the
proposed facility may affect a listed species, formal consultation under §7 must then follow.
A number of EPA regions have had formal §7 consultations with FWS or NMFS in conjunc-
tion with environmental review of proposed construction grants.
More than 90 percent of the project management activities in the construction grant
program are performed by the states and the U.S. Army Corps of Engineers under
delegation agreements.96 In at least one EPA region, these delegation agreements have
included sections outlining in detail the respective state and EPA responsibilities in a
number of areas, including §7 consultation procedures.97 Other EPA regions need to
follow this example. Under the construction grant program, EPA has assumed that formal
ESA responsibilities can not be delegated to the state; thus, EPA maintains that responsibili-
ty. The state may implement informal consultation, while responsibility for any formal
consultation is reserved to EPA.
State Water Pollution Control Revolving Fund Program
In the SRF loan program, EPA and the states enter into capitalization grant
agreements.98 The goal behind the loan program is to have local communities assume a
greater share of the cost of treatment plant projects. An agreement between EPA and the
state covers the schedule for federal payments to the states and the state commitment for
matching funds. The types of projects eligible for loans under the program are: publicly
owned treatment works as defined in 33 U.S.C. §1292; nonpoint source management
programs implemented pursuant to 33 U.S.C §1329; and estuary conservation and
management plans developed under 33 U.S.C. §1330. Direct grants are specifically
prohibited.
22
-------
If EPA determines that the state has failed to comply with the capitalization
agreement, it must notify the state of the need to take corrective action.99 If the state fails
to take corrective action, EPA withholds additional payments under the agreement. If the
state does not take corrective action after 12 months, EPA may re-allocate the withheld
funds.100
EPA considers assessment of environmental concerns under the SRF loan program
to be wholly the individual state's responsibility. The agency maintains no NEPA oversight,
and thus prepares no NEPA documentation in connection with capitalization grant
agreements. EPA is supposed to ensure, however, that the states' environmental review
processes will meet the relevant procedures of related environmental statutes, including the
ESA. Thus, the state must have in place a "NEPA-like" process for evaluating applications
for treatment facilities.101 The state must notify the appropriate regional office when
consultation or coordination with other federal agencies is deemed necessary to resolve
environmental compliance issues.
Thus, there appears to be no provision in the SRF program as it is now organized
for EPA to exercise any direct oversight of use of the program's monies regarding compli-
ance with the ESA. However, EPA can exercise control during negotiation of the
capitalization grant agreement by directing that certain operating plans be followed and by
inserting conditions in the SRF agreement. Because failure by a state to adhere to the
agreement is grounds for withholding of funds, EPA would have a strong leverage point for
ensuring that T&E species concerns are addressed by the states. Benefits to threatened and
endangered species could be one criterion for providing the funds. At least one EPA region
has developed an environmental review manual that provides guidance and instruction to
state personnel conducting environmental reviews under their approved SRF program; this
model, which includes ESA suggestions, could be duplicated in other regions.
General Issues Pertaining to Grants and Loans
EPA has opportunities to influence state construction grants and loans so that they
achieve ESA compliance during the construction grant delegation process, negotiation of the
capitalization agreement, and in other contexts. MOUs between EPA and FWS/NMFS at
the regional level can address T&E species concerns that may arise in the context of these
grants and loans. The MOU between EPA Region 8 and FWS Region 6, for example,
directs EPA to inform FWS of any proposed grant or loan program activity that may
adversely affect T&E species. The MOU specifically states that the focus will be primarily
on EPA's grant activities in the nonpoint source and wastewater treatment programs under
the CWA.102 Other EPA regions need to negotiate similar MOUs with FWS and NMFS
to ensure that CWA grants or loans contain appropriate conditions requiring ESA
compliance.
23
-------
C. Research and Development Grants
Section 105 of the CWA authorizes EPA to conduct its own research or to make
grants to a state, municipality, or interstate agency for research in various areas. One area
of permissible research grants includes reduction of stormwater pollution discharges and ad-
vanced wastewater treatment methodologies.103 EPA may also support research that
examines advanced treatment and environmental enhancement techniques in river basins
to control pollution from all sources including nonpoint sources.104
EPA can use these discretionary funds to support research that would increase knowl-
edge and provide data to advance protection of T&E species and their habitat. The agency
chooses which research to support, both within the agency and without; proposals that would
enhance species knowledge and water quality data in critical habitat areas could be given
priority. Benefits to T&E species could be one criterion for providing the funds.
D. Grants for Pollution Control Programs
Section 106 of the CWA authorizes EPA to award grants to states in order to help
them to administer programs for the "prevention, reduction, and elimination of
pollution."105 A grant may not be awarded if the state is not taking steps to monitor and
to compile data on the quality of its waters, including biological information. This biological
information can include impacts on T&E species and habitats, and EPA should direct state
grant recipients to include such data. The state must also have sufficient legal authority to
carry out its program.
EPA's discretionary authority to issue §106 grants to a state may require compliance
with the ESA if a state's action potentially causing harm to a threatened or endangered
species is traceable to the EPA funding.106 This connection may be shown if the funds
EPA provides to a state pursuant to §106 are earmarked for specific concrete actions that
have environmental effects.107 Federal actions that have no concrete impact upon T&E
species may not be encompassed within the directive of the ESA-108
E. Training Grants and Contracts
Section 109 of the CWA authorizes EPA to make grants to or enter into contracts
with educational institutions to assist them in carrying out programs that prepare students
for work in connection with wastewater treatment facilities and other facilities whose
purpose is water quality control.109 The financial support may include program planning,
faculty training, classroom training, and experiment cooperative programs. The agency can
encourage the program planning and training activities to include components educating the
students about ESA responsibilities and water quality impacts on T&E species and habitat.
24
-------
F. Water Quality Management Plans and Continuing Planning Processes
Water quality management plans and continuing planning processes, required by
CWA §303(e), provide states with a framework to identify water quality problems, establish
priorities, and develop control actions for those problems. The 1987 CWA amendments
authorize additional funds for water quality management activities by states, regional
planning organizations, and tribes; thus, they provide an opportunity for EPA to exercise
influence over water quality issues that could adversely effect T&E species. The funds
available include planning grants under CWA §205(j)(2) and nonpoint source pollution
projects under §319. Additionally, under CWA §204, before approving grants EPA must
determine that the proposed project is included in an applicable areawide waste treatment
management plan developed under CWA §208 and that the project conforms with any
applicable state continuing planning process plan under CWA §303(e).no
VI. INFORMATION GATHERING
A. Monitoring
There is a critical absence of water quality data at the national level. This gap has
been confirmed by recent USGS National Stream Quality Accounting Network (NASQAN)
studies. The NASQAN research indicates that current data cannot answer such simple
questions as: what fraction of waters fail to meet water quality standards, what are the
relative loadings of point and nonpoint sources, and what has been the water quality effects
of federal subsidy programs. Although there have been improvements since 1972 in water
quality monitoring techniques, the national inventory is anecdotal at best.111 While
unfortunate, this situation presents EPA with an opportunity to remedy these problems,
improve information-gathering methods, and widen the scope of research to encompass
water quality issues that adversely affect T&E species.
One suggestion for better utilizing the information-gathering authorities spread
throughout the CWA as well as in other statutes, is for EPA to dedicate a specific office to
biological census and data collection, comparable to the statistics section within the
Department of Commerce. EPA should make additional comprehensive ecosystem
monitoring a priority for its T&E species protection program. The agency tends to gather
discrete data on specific issues. EPA has so many media program offices, each with its own
specific responsibilities, that their data-gathering activities become excessively fragmented.
When each EPA program or office is concerned primarily only with data it is required to
collect, the agency misses the "big picture" on data needed for T&E species protection. One
office dedicated to statistics could gather information for a number of different EPA activi-
ties, pull together the different data for analysis, and fund research to fill data gaps. At the
regional level, EPA could better utilize and work with state monitoring capabilities. The
agency could consider the use of federal funding to encourage additional state monitoring.
25
-------
In cooperation with its regions, the Services, and individual states, EPA should
develop T&E species habitat maps and databases. Cooperation with appropriate nongov-
ernmental organizations (e.g., The Nature Conservancy) should be encouraged to avoid
duplication of existing research. An example of activity in this area by the Office of Water
is the maintenance and updating of a national information exchange network to transfer
information about near coastal water problems. EPA could also incorporate into state
cooperative agreements requirements for states to report on state programs that relate to
T&E species protection, thus providing EPA with needed information in this area.
B. Reporting
The CWA authorizes EPA to engage in various activities designed to increase the
amount of information available on water quality issues. The Act directs EPA to report on
information it gathers that is related to protection of wildlife in a number of ways. It
requires EPA, for example, to develop criteria for water quality "accurately reflecting the
latest scientific knowledge."112 EPA is required to publish information on the factors
necessary to restore the chemical, physical and biological integrity of navigable waters; on
the factors necessary for the protection of wildlife; and on the measurement of water quali-
ty.113 When adopting or revising effluent limitations, EPA must promulgate associated
regulations; the regulations must be consistent with a variety of conditions listed in the
CWA.114 To abide by those conditions (e.g., identify the degree of effluent reduction
attainable through the application of the best practicable control technology) EPA should
engage in research and information gathering. The Art mandates that results of many of
the information gathering activities in which the agency is involved are to be published in
the Federal Register and otherwise made available to the public.1" EPA can use these
authorities to gather data on how water quality is adversely affecting T&E species in certain
areas.
Individuals or entities that discharge pollutants into waters pursuant to an NPDES
permit must report on their discharges to EPA or the state, depending on who issued the
permit.116 These "discharge monitoring reports" can form the basis for enforcement action
against the discharger. EPA should use these reports to determine where water quality
discharges may be adversely affecting T&E species and their habitats.
C. Research
The CWA calls on EPA to establish national programs for the prevention, reduction,
and elimination of pollution, as part of the Act's overall goal to eliminate water pollution
in the country.117 As part of this directive, EPA is required to participate in a number of
quite varied endeavors that can be used to protect T&E species and habitat. Among other
things, EPA must cooperate with other federal agencies as well as state and local entities
to research pollution elimination possibilities; cooperate with and render technical assistance
to pollution control agencies; conduct investigations on the pollution of navigable waters;
and establish advisory committees to assist in evaluation of research progress.118
26
-------
EPA's water quality-related research authority covers many different areas and allows
the agency to engage in many different activities, including the making of grants, entering
into contracts, maintaining field laboratories, and funding pilot projects. There is ample
room in this discretionary authority for EPA to fund projects designed to protect T&E
species or habitat, or to pursue such research within the agency.
VII. OTHER CLEAN WATER ACT PROGRAMS AND AUTHORITIES OFFERING
OPPORTUNITIES FOR SPECIES AND HABITAT ENHANCEMENT
Generally, the EPA water program plays a vital role in protecting T&E species, their
habitats and more broadly, biological diversity and ecosystems. Virtually all Clean Water
Act programs are closely related to protection of species and habitat. As the EPA
Administrator recently stated, "[w]henever EPA has acted to control acid rain, clean up
waste sites, construct sewage treatment plants, or prohibit the use of certain pesticides, we
have — implicitly or explicitly — helped preserve biological diversity and natural habitat."119
However, Administrator Browner also said that the agency has "to do more." EPA
needs to place more emphasis on using its existing authority to protect habitat in many
CWA programs. The CWA provides a "preventive ecosystem" approach that enables EPA
to protect T&E species and habitat. Using the watershed as a framework for focusing EPA
activities can help accomplish this goal. The degree to which EPA is successfully imple-
menting this preventive ecosystem approach, however, appears to vary significantly in
different areas of the country.
Certain miscellaneous Clean Water Act and related water quality programs provide
examples of positive and appropriate approaches to the protection of habitat that EPA
needs to pursue even more aggressively. These programs make positive contributions to
T&E species and habitat protection because they involve high degrees of coordination and
communication among all parties and require partnerships among the relevant federal
agencies, state and local governments, and nongovernmental organizations. Additionally,
these programs concentrate their focus at the ecosystem, rather than individual species,
level, thus having the potential for broader and more widely felt impacts. Finally, the.
authorities creating these programs provide EPA with a considerable amount of latitude in
gathering relevant information, conducting appropriate monitoring activities, funding suitable
research, and engaging in substantial cooperative activities with other agencies and
nongovernmental entities.
A. National Estuary Program
The National Estuary Program (NEP) was established by CWA §320 and focuses on
point and nonpoint source pollution in certain targeted, high priority estuarine waters. The
Act directs EPA to assist state, regional, and local governments to develop estuary-specific
comprehensive conservation management plans. The plans recommend corrective actions
to restore and maintain estuarine water quality and protect fish populations and other
designated uses of the estuarine waters.120
27
-------
EPA coordinates development of the conservation and comprehensive management
plans to restore and protect the water quality and ecological resources of significant
estuaries in the country. Among the activities EPA pursues under the NEP are imple-
mentation of coastal water management strategies, development of demonstration projects,
and integration of water pollution control programs within the coastal water program. Thus,
EPA has an opportunity under the NEP to think innovatively and institute creative
approaches towards enhancement of habitat for listed species.
EPA's ongoing activities that can be used to further its conservation and protection
duties under the ESA include the Office of Water's pollution prevention strategy.121
Several pollution prevention programs have begun to be implemented, including sustainable
agriculture practices that will prevent pollution caused by pesticides, integrated permitting,
and environmentally responsible management of agricultural chemicals.
The NEP has been criticized for failing to serve as an information-gathering
clearinghouse for estuarine data. The NEP clearly could serve as a means for compre-
hensive ecosystem monitoring and information collection. EPA could use this program, and
others like it, as an opportunity to become a leader in comprehensive, holistic approaches
to waterbasin management, thereby improving habitat for listed species.
B. The Great Lakes Program
The Great Lakes Program began in 1978 when the United States and Canada entered
into the Great Lakes Water Quality Agreement, aimed at encouraging cooperation between
the countries in several programs intended to improve water quality in the Great Lakes
system. Additionally, in 1990 Congress enacted the Great Lakes Critical Programs Act. The
1987 Clean Water Act amendments added new directives for nonpoint source pollutants,
created a Great Lakes National Program Office, and provided for specific research
efforts.122
The 1990 Act requires, among other things, that EPA adopt water quality guidance
that conforms with the 1978 bilateral agreement. Within two years after EPA adopts this
guidance, the Great Lakes states are required to adopt consistent water quality standards.
To implement the Act, EPA formed a steering committee composed of EPA staff and state
representatives to draft the guidance. To provide input into this decisionmaking process,
a group of companies and municipalities operating facilities that discharge into the Great
Lakes system formed the Great Lakes Water Quality Coalition. The guidance, referred to
as the Great Lakes Initiative (GLI), has been submitted as a proposed rule.123 The
proposal includes basinwide water quality criteria to protect human health, aquatic life, and
wildlife; a standard antidegradation procedure to protect existing water quality levels; and
procedures to translate the water quality criteria into enforceable limits on pollutant
discharges.
28
-------
The 1987 CWA amendments created a Great Lakes National Program Office within
EPA. This office serves as a liaison with Canadian officials and coordinates EPA actions
that relate to Great Lakes water quality.124 The amendments also established a research
office within the National Oceanic and Atmospheric Administration to identify areas where
research is needed on Great Lakes issues, maintain an inventory of research on Great Lakes
concerns, establish a research exchange, develop a research program and database, and
conduct monitoring activities.125
EPA's Great Lakes program can be a positive approach towards ESA compliance and
the ESA's goals of ecosystem protection because it tries to link the needs of the ecosystem
to enforcement goals, system monitoring, and habitat protection. Towards this end, and as
part of the program, EPA is using data from Heritage Data Centers in the Great Lakes
states to set goals and priorities for biodiversity protection. The data present a synthesis of
critical habitat and indicator species.126 This approach could be used by EPA for
protecting species and habitats in other regions or ecosystems.
C. The Chesapeake Bay Program
Section 117 of the CWA continues the Chesapeake Bay Program and establishes
within EPA a Chesapeake Bay office that is responsible for collecting information on
Chesapeake Bay environmental quality, coordinating federal and state water quality
improvement efforts in the Bay, determining the impact of sediment deposition in the Bay,
and assessing the impact of natural and human-caused environmental changes on the Bay's
living resources.127 As part of the program, EPA is authorized to make grants to the Bay
area states, subject to terms and conditions chosen by the agency.128 The grants must be
for the purpose of implementing the Bay interstate management plan.
The Office of Water has been active in the Chesapeake Bay program. Nonpoint
source control programs have been a major priority and have been the subject of state
grants. Within this program, EPA has authority to make grants for other purposes as long
as they meet the program's overall goals. Because a significant objective of the program is
to protect the Bay's living resources, and because EPA may impose such terms as it chooses
on a grant, the agency can include in grants it makes under this program conditions
pertaining to protection of T&E species. The agency could also specifically look for grant
recipients who could help enhance and improve T&E species or their habitats in the Bay
region.
D. The Great Plains Initiative
The Great Plains Initiative does not technically derive from the CWA, except to the
extent that EPA participates in the program. The Initiative is a voluntary state project
spearheaded by the Western Governors' Association, the Nature Conservancy, and the
International Association of Fish and Wildlife Agencies. In addition to EPA, other federal
agencies involved include FWS, the U.S. Geological Survey, and the Soil Conservation
Service. Local and tribal governments are also involved. The goal of the initiative is to
develop needed information and coordinate cooperative actions to protect and conserve the
biological diversity of the Great Plains region by combining the knowledge and expertise of
the different governmental groups and interests.
29
-------
The initiative intends to hold regional meetings on various biological technical issues
to evaluate the region's needs, determine the best, most cost-efficient means to collect and
analyze data, and identify high-priority conservation projects. The states in the region would
then have the option of coordinating their conservation projects to meet these goals as well
as contribute to projects outside their borders.
EPA participates in the initiative by providing the Nature Conservancy with funding,
through a cooperative agreement, to compile natural heritage data in Geographical
Information System (GIS) format, which will enable state agencies and other interested
parties to use the data more easily. The project will compile available scientific information
on the ecological structure of the Great Plains region (including its use by migratory and
indigenous species), locations of rare species, and magnitudes of potential stress points of
component ecosystems. EPA also co-sponsored a recent symposium that brought together
a number of the "players" in the Great Plains region to discuss and consider scientific
assessment of the region's resources. Recommendations resulting from the symposium were
presented at the June 1993 meeting of the Western Governors' Association.
The Great Plains Initiative is an example of the type of activity that EPA can
develop, and provide leadership for, in the context of protecting T&E species and their
habitats. The Initiative's ^structure and goals follow a number of recommendations of this
report regarding positive ways that EPA can play a meaningful role in T&E species
protection, including:
• It is an alliance of agencies and interest groups working in a coordinated fashion,
rather than duplicating efforts and wasting resources;
• It aims to encourage cooperation among the participating groups, hoping to avoid
conflicts by continual communication and information sharing; and
• It contains a significant education and outreach component, holding to the tenet that
a public that examines the causes and effects of threats to vulnerable species is able
to plan approaches that can avoid ecosystem decline.
In conjunction with the Great Plains Initiative and other programs, EPA can improve
cooperative relationships and help other agencies do their jobs better by providing
information and direction. While FWS and NMFS have expertise in T&E species, EPA can
address water quality and quantity issues and can contribute funding. The agency should
also continue to emphasize watersheds in water quality planning. A management plan
developed in connection with a particular watershed can logically include protection of T&E
species and their habitats, thereby promoting the goals of the ESA.
30
-------
CHAPTER THREE
THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT
Pesticides are poisons that can harm not only target species, but also non-target
species and their habitat. Pesticide use has created one of the most widely publicized
dangers to T&E species and their critical habitat. Three-quarters of all pesticide use occurs
in the area of agriculture, with the remainder consisting of industrial, government, lawn care,
forest and range uses.
Over 90 species listed under the ESA have been identified as being affected by
pesticides, herbicides and fertilizers.129 Pesticides can affect T&E species in a variety of
ways. Direct exposure can result in toxic or bioaccumulative effects, such as reproductive
failure in the brown pelican and northern aplomado falcon due to organochlorine pesticide
exposure. Spray drift can affect non-target plants that are listed or are proposed to be
listed.130 Pesticides can also adversely modify the habitat on which T&E species depend.
This includes contamination of surface and groundwater through runoff, as in the case of
runoff into the waterways in which the Shasta crayfish and the James spinymussel are
located.131 Pesticide use can result in the poisoning of non-target species on which T&E
species depend for food. For example, atrazine is used as an herbicide throughout the
Chesapeake Bay basin and can affect underwater grasses and soil plankton organisms at the
base of the food chain.132 Even less direct effects on T&E species and their habitat may
result from pesticides such as methyl bromide, which are believed to contribute to depletion
of the ozone layer.
EPA's implementation of the pesticide regulatory program under the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA or Act) has important consequences for
endangered species protection. FIFRA also presents substantial opportunities for EPA
initiatives to further the goals of the ESA.
I. PERMITS AND OTHER RELATED APPROVALS
Formal approval of pesticides is the heart of EPA regulation under FIFRA, and is
the agency action with greatest potential for affecting T&E species. In Defenders of Wildlife
v. Administrator,133 the court found a clear relationship between EPA's approval of a
pesticide (strychnine) and the deaths of endangered species resulting from use of the
pesticide. FIFRA's framework for regulating pesticides presents a number of circumstances
in which EPA is required to provide the approval necessary for use of pesticides.
A. Registration
FIFRA states that a pesticide may not be sold or distributed unless it first has
received EPA approval in the form of "registration" of the pesticide.134 This process is
31
-------
undertaken for new pesticides, as well as for already registered pesticides seeking approval
of a new use or new chemical ingredients. FIFRA directs EPA to develop regulations on
the procedures and standards for registration.
FIFRA provides that, among other things, a pesticide may not pose "unreasonable
adverse impacts on the environment."135 This is defined to include impacts on "water, air,
land, and all plants and man and other animals living therein, and the interrelationships
which exist among these."136 EPA is therefore required by FIFRA to determine prior to
registration whether a pesticide may affect T&E species or habitat. At each step in the
registration process, EPA needs to consider potential impacts on T&E species and to confer
or consult with FWS or NMFS, where necessary, prior to granting approval. FIFRA also
provides that EPA may consult with other federal agencies in connection with any
registration action.137
This coordination with FWS or NMFS should not pose a conflict with the time
restrictions for registering pesticides, because FIFRA requires only that registration be
carried out "as expeditiously as possible."138 The Act does place more specific time
deadlines on approval of initial or amended registration of end-use pesticides that
would be identical or substantially similar in composition and
labeling to a currently-registered pesticide ... or that would
differ in composition and labeling . . . only in ways that would
not significantly increase the risk of unreasonable adverse effects
on the environment . . . ,139
The Act requires a final decision by EPA on the application for such pesticides within 90
days. This need not create a conflict with ESA §7 requirements, however. If a
demonstration could not be made within 90 days that a pesticide would present no
unreasonable adverse effects on the environment, including any effects on T&E species or
habitat, EPA could presumably determine that the pesticide did not fall within the category
envisioned by the statute, and was not subject to the 90-day time deadline.
FIFRA provides for "conditional" registration or amendment of registration of
pesticides if the pesticide and proposed use are "identical or substantially similar to any
currently registered pesticide and use thereof."140 EPA may register such pesticides even
where certain data have not yet been generated, provided that the data is submitted no later
than is required for similar, already registered pesticides. Similarly, the Act provides that
EPA may amend the registration of a pesticide to permit additional uses and may register
a pesticide containing an active ingredient that is not an ingredient in any currently
registered pesticide, conditioned on the later submission of data.141 Because such
conditional registration permits use of a pesticide prior to complete documentation of its
effects, EPA's approval of the pesticide could lead to impacts on T&E species or habitat.
However, FIFRA restricts conditional registration to cases where there will be no
unreasonable adverse effects on the environment as a result. EPA is authorized, indeed
32
-------
required, to deny conditional registration if it will adversely impact T&E species. Therefore,
under both FIFRA and ESA, EPA should carefully determine whether the conditional
registration of a particular pesticide could have adverse impacts on listed species or habitat.
In registering a pesticide, EPA may place restrictions on its use and may require that
the restrictions be included in the product labeling, thus making them legally binding.142
Use restrictions can be used to prevent adverse impacts on the environment resulting from
application of a particular pesticide, including impacts on T&E species and their habitat.
For example, geographic limitations might prohibit a pesticide from being applied in certain
locations. Restrictions on use might specify the time of year or permissible frequency of
application. FIFRA also provides EPA with authority to give pesticides a formal "restricted
use" classification if the pesticides are likely to cause unreasonable adverse effects when
used according to the labeling and instructions.143 Pesticides so designated may only be
applied by certified applicators. EPA's determination of when a pesticide is "likely" to cause
such effects may be important, e.g., in cases where use restrictions designed to protect T&E
species and their habitat require the skill of a certified applicator for effective
implementation.
Where EPA determines that use restrictions may be necessary because a pesticide
may result in adverse impacts to T&E species or habitat, the agency should coordinate its
procedures for determining appropriate use restrictions with the ESA consultation
compliance process.
B. Reregistration
In addition to registering pesticides, EPA is charged with reviewing pesticides
registered before 1984 and with carrying out "reregistration" of those pesticides.144 The
reregistration process is intended to ensure that older pesticides are reviewed in light of
current scientific knowledge and data about pesticide effects. FIFRA sets out a five-phase
procedure for reregistration in which EPA ranks the active ingredients of registered
pesticides and notifies registrants of pesticides containing those ingredients of any data they
must submit in order to reregister. EPA then makes the determination whether to reregister
the pesticide based on the same substantive criteria that are established by the Act for initial
registration, including the absence of unreasonable adverse impacts on the environment.
With respect to ESA requirements, EPA's decision to reregister a pesticide is similar
to the decision to register a pesticide. Both involve formal agency approval of a pesticide
whose use might result in adverse impacts on T&E species or habitat. Because a pesticide
generally continues to be used until a reregistration decision is made, EPA's exercise of its
statutory discretion to extend time periods for submission of information during the
reregistration process may produce significant impacts on T&E species. Similarly, the
pressure on EPA (from statutory reregistration deadlines) to approve pesticides where
certain requested information has not been provided to the agency, could lead to impacts
on T&E species. The agency is empowered to suspend a registration if the reregistrant does
33
-------
not comply with agency deadlines for submitting information, and could use this authority
to ensure that adequate data is submitted in a timely manner, especially where there is a
possibility of adverse impacts on T&E species or habitat.145
C. Experimental Use Permits
EPA may issue an experimental use permit if it determines that the applicant needs
such a permit to accumulate information necessary to register a pesticide.146 If EPA
determines that the use of a pesticide may reasonably be expected to result in any residue
on or in food or feed, the agency may establish a temporary tolerance level for the residue
of the pesticide before issuing the experimental use permit. Although the agency is
authorized to restrict the use of the pesticide and to limit the time period of the permit, the
granting of experimental use permits requires evaluation of potential impacts on T&E
species and habitat because EPA's approval of the pesticide use is based on limited
information.
D. Transfer of Registration
Under FIFRA, a registrant may apply to cancel voluntarily registration of a
pesticide.147 With respect to pesticides registered for minor agricultural use, where
cancellation would affect the availability of the pesticide, EPA is directed to publish notice
before approving the cancellation. EPA is authorized to waive the notice period upon a
determination that the pesticide may cause unreasonable adverse impacts on the
environment.148 FIFRA also states that if, following notice of an application for voluntary
termination, the applicant arranges instead to transfer the registration of the pesticide to
another person, EPA must approve the transfer if it is in conformity with agency regulations
regarding transfers and if the agency determines that continued use of the pesticide will not
cause unreasonable adverse impacts on the environment.149 Approval of transfer of
registration might implicate ESA issues if the pesticide in question has the potential to affect
adversely T&E species or habitat.
E. Pesticide Imports and Exports
EPA's regulation of imported pesticides differs from the agency's approval of
pesticides produced and distributed domestically. Under FIFRA, EPA is not required to
give formal approval to pesticides being imported into the U.S. The Secretary of the
Treasury must notify EPA of the arrival of a pesticide or device from abroad. EPA may
then request a sample of the pesticide or device. If the agency determines that an imported
pesticide or device is harmful to the environment, the pesticide may be refused admission;
it is the responsibility of the Secretary of the Treasury to see that it is not admitted.
Therefore, FIFRA does not establish a comprehensive scheme for ensuring that imported
pesticides will not harm the environment, although the authority granted EPA does provide
an opportunity for the agency to identify and prevent adverse impacts on T&E species and
habitat from imported pesticides.
34
-------
The U.S. exports approximately 380 million pounds of pesticides annually — almost
30 percent of the pesticides produced here.150 EPA's actions with respect to pesticide
exports can further the goals of the ESA, given that the ESA seeks to protect T&E species
overseas and applies to the actions of federal agencies abroad as well as in this country.
Pesticide exports do not require formal EPA approval.151 FIFRA sets out minimal
standards for exports, and gives EPA authority to enforce those standards. The Act provides
that pesticides and related devices are not generally in violation of FIFRA if they are
prepared or packed according to the requirements under which the foreign purchaser
operates. The Act requires that where a pesticide has not been registered under §136a or
sold under §136d(a)(l), foreign purchasers must sign a statement indicating their knowledge
of this fact. EPA can communicate this notice effectively, to ensure that importing countries
receive useful information on exported pesticides that have not undergone agency evaluation
for adverse environmental impacts. EPA's recent decision to eliminate the exemption for
certain unregistered pesticides that are similar to registered pesticides may ultimately
enhance species protection by providing more information to importing countries.152 To
the extent that EPA continues to make determinations of whether the notification provision
applies to a registered pesticide whose labeling or composition has been slightly modified,
the agency should be guided in part by whether the modification could result in adverse
impacts on T&E species or habitat.
In addition to implementing these notification requirements, EPA must provide
notification to other countries and appropriate international agencies of the registration,
cancellation or suspension of a pesticide.153 This function is particularly important where
a pesticide has been restricted, canceled or suspended because of its adverse effects on the
environment. Although it may not be feasible to use this notification to provide site-specific
information about impacts on T&E species abroad, information about a pesticide's impacts
on T&E species or habitat in the U.S. may be relevant to use of the pesticide in a country
in which similar species or habitat are present.
Another way for EPA to address the impact of pesticide exports on T&E species
would be through research and technical assistance. EPA can do this by utilizing FIFRA's
mandate to "participate and cooperate in any international efforts to develop improved
pesticide research and regulations."154 For example, such efforts might involve research
on how pesticides are affecting listed species in other countries, or on alternatives to
pesticide use in appropriate circumstances. EPA might also work with particular countries
on developing restrictions to pesticide use where impacts on T&E species or habitat have
been identified.
F. Modification or Withdrawal of Pesticide Approval
Under FIFRA, EPA has authority to restrict pesticides that are already registered if
new information shows that the pesticides may pose unreasonable adverse impacts on the
environment. EPA has established a "special review" process for deciding whether existing
35
-------
pesticide should be restricted. The regulations state that the agency may conduct a special
review if a "validated test or other significant evidence" indicates that the pesticide may pose
a risk to T&E species or habitat.155 The basic tools available to EPA in restricting the
use of a registered pesticide are geographic or use restrictions, change in classification from
general to restricted use, and withdrawal of approval. EPA's authority to attach use
restrictions to a pesticide was described above. In the event that use restrictions are not
adequate to prevent adverse impacts to T&E species, EPA has several authorities for
withdrawing a pesticide:
• EPA may cancel the registration of a pesticide if the agency determines that
the pesticide or its labeling does not comply with the Act or that its regular
use causes unreasonable adverse effects on the environment.156 EPA may
cancel a conditional registration if the conditions established by the agency
are not being met.157 EPA may also cancel a registration if the registrant
does not seek to apply for continuation of the pesticide use five years after
the registration, or every five years thereafter.
• EPA may suspend registration pending cancellation proceedings, if necessary
to prevent an imminent hazard.1S9 This authority may be used to protect
T&E species and habitat, particularly in light of FIFRA's definition of
imminent hazard as: "a situation which exists when the continued use of a
pesticide during the time required for cancellation proceeding would be likely
to result in unreasonable adverse effects on the environment or will involve
unreasonable hazard to the survival of a species declared endangered or
threatened by the Secretary pursuant to the Endangered Species Act."160
• EPA may require recall of a pesticide that has been suspended and
canceled.161 Recall can be voluntary or mandatory. EPA must approve a
registrant's plan for voluntary recall if the plan is adequate to protect health
and the environment. If mandatory recall is used, EPA must issue a
regulation prescribing a plan for the recall of the pesticide. Thus, in its
approval of a voluntary recall plan or issuance of a mandatory recall plan,
EPA can ensure that any impacts on T&E species or habitat are adequately
addressed.
• Once an experimental use permit has been issued, EPA may revoke the
permit if the agency determines that its terms are being violated, or that its
terms are inadequate to prevent unreasonable adverse effects on the
environment.162
In a broad sense, EPA's authorities to restrict or terminate the use of a pesticide
enable the agency to enforce the conditions originally established for safe use of a pesticide,
or to respond to circumstances not anticipated when a pesticide was registered. EPA's
capacity to review and restrict pesticides that are already in use is therefore critical to
36
-------
preventing impacts to T&E species and to promoting the goals of the ESA generally. EPA
should investigate any evidence that the use of a registered pesticide is adversely impacting
T&E species or habitat, and should initiate §7 consultation with FWS or NMFS in all cases
where the evidence indicates that there may be some impact. As noted earlier, use
restrictions and the withdrawal of pesticides provide vehicles for EPA to implement any
reasonable and prudent alternatives recommended by the FWS or NMFS.163
G. Exemption of Pesticides
EPA may exempt a state or federal agency from any FIFRA requirements if EPA
determines that "emergency conditions exist which require such exemption."164 EPA
therefore has discretion to allow an agency to use a pesticide in an emergency without
obtaining registration as required under the Act. The way in which EPA exercises this
discretion — how EPA determines what constitutes an emergency, or how the agency
evaluates the potential risk to T&E species from use of the exempted pesticide — may raise
T&E species issues. It is interesting to note that EPA has promulgated a regulation making
emergency exemptions permissible if necessary to avoid significant risks to T&E species.165
EPA might also, by regulation, provide that exemptions will not be granted for pesticides
that might impact T&E species or habitat.
EPA may also exempt from the requirements of FIFRA any pesticide which it
determines to be regulated adequately by another federal agency, or to be of a character
that is unnecessary to be subject to the Act.166 In making this determination with respect
to a particular pesticide, EPA might consider whether regulation under FIFRA is necessary
to address impacts on T&E species or habitat.
II. STANDARD SETTING
A. Standards for Determining Adverse Impacts on Species
EPA is authorized to issue standards to carry out its authority to register pesticides
that do not have an unreasonable adverse impact on the environment.167 Under this
authority, for example, EPA has promulgated numerical standards for labeling a pesticide
as toxic to wildlife or fish.168 For T&E species, EPA currently bases hazard assessments
on one-tenth (wildlife) and one-twentieth (aquatic) the standard for toxicity to non-T&E
species. The substantive standard by which EPA evaluates whether a pesticide is toxic to
a T&E species is critical to an adequate assessment of the impact of pesticide use on a
particular species. These standards should therefore be designed to ensure that any
potential effects on T&E species are identified for the purposes of undertaking §7
consultation.
37
-------
B. Standards for Pesticide Storage and Handling
In addition to determining whether a pesticide as used will cause unreasonable
adverse effects on the environment, EPA is charged with setting standards relating to the
safe storage and handling of pesticides.169 For example, EPA is required to promulgate
guidelines for the design of pesticide containers that will promote the safe storage and
disposal of pesticides, and for the removal of pesticides from containers. EPA has authority
to issue regulations regarding the storage, transportation and disposal of pesticides (or
containers of pesticides) whose registrations have be canceled or suspended. EPA may also
require that registrants or applicants for registration provide information on the safe storage
and disposal of excess quantities of pesticides. The development and implementation of
these standards present an affirmative opportunity for EPA to prevent adverse impacts to
T&E species and habitat.
C. Certification of Applicators
FIFRA requires EPA to set up a program to certify applicators of restricted use
pesticides, and to promulgate standards for certification.170 States may submit a state plan
for certifying applicators, and EPA is to approve the plan if it meets five statutory criteria.
These criteria relate to the state's capacity to implement the program and to ensure that its
standards are in conformity with the federal standards. The way in which restricted use
pesticides are applied is important because use restrictions are a central means of protecting
T&E species and habitat from the adverse impacts of a pesticide. EPA's design and
implementation of a certification program for applicators and its approval of state
certification plans therefore present opportunities to further the goals of the ESA, and to
ensure that EPA's efforts to protect species from pesticides are communicated to and
implemented by the states.
III. ENFORCEMENT RELATED ACTIONS
Effective enforcement of the requirements of FTFRA is important to protecting T&E
species. For example, if EPA requires use restrictions on a pesticide in order to protect
critical habitat in the area of the pesticide application, EPA must have a means of ensuring
that the restrictions are actually implemented in the field. This generally would require
enforcement of labeling requirements as well as application practices. FIFRA defines the
actions that constitute violations of the statutes; some of the more significant of these
violations, for purposes of preventing adverse impacts on T&E species and habitat, are:
• Distribution or sale of any pesticide not registered under the act, or any
pesticide that has been canceled or suspended (unless authorized by EPA);
• Sale, distribution or use of any restricted use pesticide in a manner other than
that specified in the Act or by EPA;
38
-------
• Use of any pesticide in a manner inconsistent with its labeling;
• Falsification of any information relating to the testing of a pesticide or the
submission of false information in support of a pesticide registration; and
• Failure to submit information and reports as required under various
provisions of the act (including, e.g., the requirement that registrants submit
any information they have on adverse effects impacts of a registered
pesticide).171
States have primary enforcement responsibility under FIFRA if EPA finds that they
meet prescribed statutory criteria.172 In the states that do not have primacy, EPA has sole
responsibility for enforcement. Hence, EPA has an opportunity to protect T&E species and
habitat by.ensuring that states have adequate capacity to enforce pesticide requirements, and
by utilizing its own enforcement authority where states do not act.
EPA and the states may inspect establishments to investigate violations of the Act.
The agency may enter establishments to inspect and sample pesticides and devices, and may
inspect documents pertaining to the delivery, movement and holding of pesticides and
devices.173 EPA's ability to detect violations through inspections is largely dependent on
availability of resources. FIFRA does not explicitly require inspections on private property
to investigate pesticide use violations. The agency currently gets a substantial amount of its
information through accidental observation or through tips from third parties. In order to
maximize its enforcement authorities and leverage its limited resources for carrying out
enforcement activities, EPA should take advantage of its authority under FIFRA to establish
recordkeeping and reporting requirements.
EPA may issue a written or printed "stop sale, use or removal" order for any pesticide
that is in violation of FIFRA, or that has been canceled or suspended, and may proceed
against the pesticide by means of a process in rem of condemnation.174 This could be
used where a pesticide has been determined to affect adversely T&E species. The statute
sets out maximum civil and criminal penalty amounts for violations, and directs EPA to
consider, among other factors, the gravity of the violation in setting the penalty.175 This
provision also allows the agency to issue a warning in lieu of a penalty where EPA finds that
the violation did not cause significant harm to health or the environment (and where due
care was exercised). EPA could therefore ensure that appropriate penalties are assessed
where violations resulted in adverse effects on T&E species. Where misuse of a pesticide
also involves a "taking" of a species in violation of ESA §9, the case should be referred by
EPA to FWS or NMFS for enforcement action.
IV. DELEGATION OF PROGRAMS TO STATES
FIFRA provides for delegation of authority by EPA to the states to implement
various aspects of the Act. In delegating authority to states and in overseeing
implementation of those delegations, EPA can promote the goals and requirements of the
ESA by ensuring that ^tate programs are capable of implementing the environmental
protection standards of the FIFRA, including prevention of adverse impacts on T&E species
and habitat.
39
-------
A. State Registration
FIFRA provides that states may regulate the sale or use of any federally registered
pesticide or device in the state, as long as the state does not permit any sale or use
prohibited by the Act.176 FIFRA explicitly prohibits states from imposing any labeling or
packaging requirements that are in addition to or different from those in the Act.
Many states have established registration programs for pesticide uses that have
already been registered by EPA, as a means of generating revenue. States may also issue
registration for additional uses of a federally registered pesticide, unless registration for that
use has been previously denied or disapproved by the EPA.177 Such registrations have the
same effect as EPA registration of a pesticide, but are only valid within the state and are
intended to address "special local needs." For example, a state may register an existing
pesticide for use during different times of the year, or for use by different application
methods.
Although state registrations generally do not involve major new uses, such
registrations may lead to impacts on T&E species or habitat. For example, the registration
of a pesticide for use during additional times throughout the year may be significant
depending on the migratory patterns of T&E species. EPA has leverage to ensure that
impacts on T&E species are adequately addressed by states, through its authority to review
individual state registrations. Under FIFRA, a state registration is not effective for more
than 90 days if disapproved by the EPA within that period. EPA may immediately
disapprove a state registration if it is inconsistent with the Federal Food, Drug and Cosmetic
Act or if its use would result in unreasonable adverse effects on the environment or an
unreasonable hazard to the survival of a T&E specie.178 States are required to notify EPA
of any decision to issue, amend or revoke a registration within 10 working days; EPA may
require the state to submit the data it used in evaluating adverse impacts on the
179
environment.
In addition to reviewing individual state registrations, EPA may suspend the authority
of a state to register pesticides if it finds that the state is not capable of exercising adequate
controls to assure compliance with the requirements of the act according to EPA
regulations.180 This provision may enable EPA to request that states implement
procedures (e.g., use of advisory teams, referral of cases to EPA) to evaluate impacts on
T&E species or habitat during the state registration process.
FIFRA requires EPA to authorize states to issue experimental use permits, under
conditions determined by EPA through regulation.181 Because the issuance of
experimental use permits could lead to impacts on species or habitat, EPA can further the
goals of the ESA by setting conditions in its regulations which ensure that states will
consider impacts on T&E species or habitat in their permitting processes.
40
-------
B. State Enforcement Authority
States have primary enforcement responsibility for pesticide use violations if EPA
determines that the state program satisfies certain statutory criteria, or if EPA enters into
a cooperative agreement with the state for enforcement.182 EPA has an important
oversight role with respect to this state delegation. Upon receiving information of a
potential significant violation of FIFRA, EPA is to refer the matter to the state for
investigation. If within 30 days the state has not commenced appropriate enforcement
action, EPA may act on the complaint. In general, if EPA determines that a state is not
carrying out its primary enforcement responsibility, EPA is to notify the state of any
corrections it must undertake. If after 90 days, the state program still is inadequate, EPA
may rescind the state's primary enforcement responsibility for pesticide use violations. In
addition, EPA may take enforcement action where EPA determines that an emergency exists
and the state is unwilling or unable to respond adequately.183
EPA can use this oversight role to help ensure that the requirements of FIFRA,
including any use restrictions or permit conditions designed to protect T&E species, are
enforced by the states.
C. State Certification of Pesticide Applicators
A state may be authorized by EPA to certify applicators of pesticides.184 EPA must
approve a state plan for certification if the plan satisfies specified statutory criteria. These
criteria relate to the state's general capacity to implement adequately a certification program
in conformity with standards promulgated by EPA. The agency thus has some discretion to
ensure that, in delegating certification to states, federal standards — including standards
relating to T&E species protection — will be maintained. To the extent that the proper
application of pesticides can have an impact on T&E species and habitat, this provides an
opportunity to further the goals of the ESA. Current regulations require that state programs
include components on the environmental effects of pesticide use, including situations where
wildlife, fish and other non-target organisms are present.185 EPA can use its authority to
require by regulation that T&E species protection be integrated into certification programs.
V. FINANCIAL ASSISTANCE
FIFRA authorizes EPA to provide financial assistance in three primary areas —
research, education, and enforcement.186 EPA can enter into cooperative agreements with
states and Indian tribes (and can enter contracts with federal and state agencies and Indian
tribes) to implement training and certification programs for pesticide applicators.187 These
cooperative agreements currently require that a component of the training program address
endangered species protection. EPA can also work with cooperative state extension services
to educate pesticide users.
41
-------
FIFRA authorizes EPA to provide grants to states and Indian tribes to carry out a
state enforcement program,188 Such grants could include a component on enforcement
of endangered species protection measures. EPA has established instead a separate grants
program to states for carrying out the federal Endangered Species Protection Program, or
an approved state equivalent. The amount of money provided to a state depends generally
on the number of T&E species in the state, with $5,000 established as the minimum grant.
States are currently given a good deal of flexibility under the grants, and activities have
ranged from providing outreach and education to pesticide users, to conducting plant surveys
or other technical research. In administering this grant program, EPA should consider (a)
whether state activities are effective in protecting particular species that the agency has
identified as most threatened by pesticide use in that state, (b) how the agency can enhance
T&E species protection by defining more clearly the state activities that are eligible for
funding under this grants program, and (c) whether effective species protection can be made
a condition for removal of each grant.
VI. INFORMATION GATHERING
A Information in Connection with Pesticide Approval
A key to determining whether or not a pesticide may affect T&E species or habitat
is obtaining adequate information during registration, reregistration, or other review of
existing pesticides. FIFRA requires EPA to publish guidelines indicating the type of
information required to support a registration, and authorizes EPA to require a registrant
to submit a full description of tests and test results supporting the registrant's claims about
a pesticide.189 EPA is also charged with establishing requirements for the submission of
data during reregistration,190 and may require additional data to maintain in effect an
existing registration of a pesticide.191 EPA thus has broad authority to require information
on effects other than human health effects. The agency should always ensure that it obtains
sufficient data for a registration, reregistration or review to address all potential T&E
species impacts.
Because the nature and quality of the toxicological data about a pesticide are
important to determining its effects on T&E species and habitat, EPA's establishment of
testing and data requirements for registrants is directly related to its responsibilities under
the ESA. Although FIFRA directs EPA to consider whether the cost of meeting the data
requirements will discourage potential registrants from undertaking the process, EPA is
nevertheless responsible under ESA and FIFRA for ensuring that it does not register
pesticides that will jeopardize T&E species. In this regard, EPA's authority under FIFRA
to require additional data for a particular pesticide (beyond the general requirements
prescribed by regulation) is important to ensuring that information on a pesticide's adverse
effects are included in the decisionmaking process.
EPA currently requires that registrants submit a range of general data, including
residue chemistry, environmental fate, degradation studies and hazard information on
nontarget species.192 Testing on nontarget organisms ranges from basic laboratory work
42
-------
to field testing, and is designed to determine acute and chronic affects on birds, mammals,
fish, terrestrial and aquatic invertebrates, and plants.193 EPA recently decided to eliminate
field testing as part of the reregistration process except in "unusual circumstances," in order
to speed the reregistration process. This decision may create a problem with respect to
T&E species protection to the extent that field testing is less likely to be done where
necessary in the context of a particular pesticide reregistration, making it more difficult to
evaluate impacts on T&E species.
Another potential problem associated with current testing and data requirements is
the degree to which the surrogate species used for toxicological testing adequately reflect
the potential effects of a pesticide on T&E species. For example, there is little toxicity
testing done on amphibians and reptiles; instead, tests on birds are used to predict effects
on reptiles, and tests on fish are used for amphibians. Closer surrogate species may be
needed in EPA's testing protocols to predict impacts on T&E species.
In addition to evaluating information submitted by registrants regarding the effect of
a substance on species and habitat, EPA must assess information on the exposure of species
to a pesticide. This exposure might occur in a number of ways, including ingestion of
pesticides or of prey that have ingested pesticides, adverse modification of critical habitat,
or destruction of species on which the listed species depend for food. To make this
determination, EPA needs information not only about the type of pesticide use in question,
but also about species, including general biological information, as well as detailed
information on the distribution and behavior patterns of listed species. FIFRA gives EPA
general authority to request this information from registrants, which it should require on a
routine basis.
There are currently a number of other information sources available to EPA in
making determinations of T&E species impacts in the context of a registration action. EPA
is now revising a species database by county, and some states are active in updating state-
specific T&E species and habitat information. EPA receives Federal Register notices
concerning proposed listings, species recovery plans, and technical bulletins from FWS and
NMFS. EPA could also obtain relevant information on particular species from the FWS,
NMFS state wildlife agencies, universities, and non-governmental organizations. EPA
should use all of these sources to gather substantial information about pesticide impacts on
T&E species.
B. Monitoring
EPA is responsible under FTFRA for monitoring pesticides that have been approved
by the agency, to determine their impacts on humans, animals, and the environment.
FIFRA requires EPA to formulate and periodically revise a national monitoring plan and
to undertake such monitoring activities as may be necessary for the implementation of the
Act, including monitoring of air, soil, water, man, plants, and animals. Adverse impacts
on T&E species or their habitats can occur as a result of inadequate information during the
approval process or as the result of changed conditions affecting T&E species. Monitoring
43
-------
of ecological effects of pesticides is important in order for the agency to exercise effectively
its authority to review approved pesticides and take necessary action to restrict their impacts
on T&E species or their habitats.
Monitoring has not been a significant part of EPA's pesticide regulatory program
either on the national or regional level. Yet, FIFRA provides authority for EPA to include
T&E species in formal monitoring initiatives, including the development of a National
Monitoring Plan. Because monitoring is labor-intensive, financial and staff resources are
needed to implement an effective monitoring program. One way to address this problem
may be through improved coordination of existing data collection efforts, e.g., EPA's
Chesapeake Bay Program has identified adverse impacts on the Chesapeake Bay from a
number of "toxics of concern," including certain pesticides. EPA might also facilitate
monitoring efforts through the establishment of reporting requirements, as discussed below.
C. Reporting
Effective reporting requirements are an important element of the agency's overall
monitoring efforts, and FIFRA authorizes EPA to establish certain recordkeeping
requirements for those who use, sell, or distribute pesticides or devices. The extent to which
EPA utilizes this authority will affect its ability to enforce the requirements of FIFRA, and
to ensure that approved pesticides are not affecting T&E species or habitat. EPA has
general authority to promulgate regulations requiring producers, registrants, and applicants
to maintain records on their operations and on the pesticides and devices produced, as the
agency deems necessary to enforce the Act.195 EPA also has authority to inspect and
obtain copies of any required records and of records pertaining to the delivery, movement
or holding of pesticides or devices.196
The Act specifically authorizes EPA to establish requirements in states where EPA
conducts certification of pesticide applicators, for the maintenance of records and the
submission of reports by commercial entities that use, sell, or distribute restricted use
pesticides.197 The Secretary of Agriculture establishes such requirements for private
applicators, and these records are available to EPA upon request.198 FIFRA further
requires EPA to conduct surveys and record the data kept by certified applicators. EPA is
required to publish regulations implementing these provisions, and could establish
requirements with respect to pesticides that have been restricted due to possible T&E
species impacts.
At any time following registration, pesticide registrants who have additional factual
information about unreasonable adverse effects of a pesticide must submit the information
to EPA.199 This provides EPA with a useful tool for identifying pesticides that require
further investigation and possible agency action to limit uses that affect T&E species. EPA
has recently developed a pesticide incident database, which includes cases reported by
registrants as well as cases obtained from state records or from agencies such as the FWS.
44
-------
D. Research
FIFRA directs EPA to undertake research "as may be necessary to carry out the
purposes" of the Act.200 EPA is specifically required to undertake research into integrated
pest management in coordination with the Secretary of Agriculture and to cooperate and
coordinate with the Secretary to develop and improve the safe use and effectiveness of
chemical, biological, and alternate methods to combat and control pests.201 EPA is also
required to conduct a study of options regarding pesticide containers.202 As noted earlier,
FIFRA directs EPA generally to participate in international efforts to develop improved
pesticide research and regulations.203
These requirements present affirmative opportunities for EPA to gain the scientific
and technical knowledge that is critical in regulating pesticides in a manner that is consistent
with the ESA For example, Arizona used federal funds in completing a recent study on the
effects of herbicides on cacti, thereby filling a significant gap in information. Although the
ESA requires only the "best available data" for purposes of complying with §7, EPA's broad
authority under FIFRA to require data from registrants and to conduct research should be
utilized to ensure that the agency is able to evaluate pesticide uses and thereby avoid
adverse impacts on T&E species and habitat.
There are a number of areas where additional research would strengthen EPA's
ability to identify adverse impacts to T&E species. For example, a better understanding of
the relationship between species would assist the agency in determining whether its
extrapolation of toxicity from birds to reptiles is adequate. Information on terrestrial
mollusks and on herbicide selectivity in endangered plants have also been identified as areas
warranting further research and development. EPA might also expand its research into
alternative methods of controlling pests. EPA can utilize its FIFRA research mandate to
undertake needed research to require that registrants supply information where pertinent
to the use of a particular pesticide.
VII. MISCELLANEOUS
A. Endangered Species Protection Program for Pesticides
The EPA has undertaken a program to review registered pesticides that may
adversely affect T&E species or habitat. This initiative, the "Endangered Species Protection
Program" (ESPP) is being carried out pursuant to Public Law 100-478 (1988), which
required that EPA
conduct a program to inform and educate fully persons engaged
in agricultural food and fiber commodities production of any
proposed pesticide labeling program or requirements that may
be imposed by the Administrator in compliance with the
Endangered Species Act.
The law directs EPA, with the Secretaries of Agriculture and Interior, to conduct a study
on how to implement a pesticide labeling program.
45
-------
A brief examination of the program to date illustrates how EPA is using its authority
to review existing pesticides that may be adversely affecting T&E species, outside the regular
channels of individual pesticide registration and reregistration. The review process involves
§7 consultation and a labeling program to implement pesticide use restrictions necessary to
prevent adverse impacts on T&E species and habitat.
Under the current framework of the ESPP, EPA has identified and ranked listed
species that are particularly vulnerable to pesticide use. By consulting with listing
documents, recovery plans, and other sources of information, EPA then ranked the species
according to a detailed methodology developed in consultation with other agencies.
Beginning with the two most vulnerable species — the San Joaquin kit fox and the spot fin
chub — EPA has determined which pesticides pose a threat to these species. This process
has resulted in 31 pesticides for which EPA has initiated consultation with the FWS. The
FWS, however, is evaluating the 31 pesticides for effects on all listed species, rather than
for effects on only the two species identified by EPA. When the FWS issues its biological
opinion and recommended measures for avoiding jeopardy, EPA will implement use
restrictions on product labeling to avoid impacts on species or habitat. Once the ESPP is
published in final form in the Federal Register, the program will become mandatory, and
the use restrictions incorporated into labeling will be enforceable under FIFRA.
States currently have the option of implementing the ESPP or creating their own
plan, which must receive EPA and FWS approval. To date, only a handful of states have
approved ESPP plans, though a number of others are working on plans.
EPA has already begun implementing the labeling aspect of the ESPP for a group
of over 100 pesticides that were subject to a somewhat different review and consultation
process completed in 1989. The labeling process involves the use of county-specific bulletins
(called "interim pamphlets" while the program is still voluntary) which list the pesticides
being restricted, describe the nature of the use restrictions, and include maps showing the
areas where the pesticides may impact T&E species or habitat. These maps are prepared
by EPA in coordination with the FWS; in addition, both the FWS and state lead agencies
have an opportunity to comment on the draft maps before they are finalized. The pesticide
labels refer the user to the interim pamphlets, rather than to the particular restrictions.
Once the program is published in final form, the labeling language will presumably be
changed to reflect the fact that the restrictions are mandatory. Although the program is still
voluntary, EPA is still responsible for ensuring that its actions under FIFRA comply with
the mandates of the ESA. The agency should therefore use its FIFRA enforcement
authorities to take all necessary action against pesticides that have been identified as posing
threats to particular listed species or critical habitat.
State activities in implementing the ESPP range from educating pesticide users about
the county bulletins to developing landowner agreements to protect T&E species, to
commenting on the EPA's interim pamphlets. Some states are actively involved in their own
site-specific or species-specific investigations and in creating detailed habitat maps. These
46
-------
investigations are generally aimed at creating T&E species protection measures, including
alternatives to the FWS use restrictions that take into account more detailed, site-specific
information. Some states have created advisory teams including all stakeholders, to achieve
consensus on appropriate use restrictions. Any such alternative use restrictions should be
reviewed by the FWS for potential impacts on T&E species.
Implementation of the ESPP raises a broader question about EPA's response to FWS
recommendations for avoiding jeopardy to species. EPA has declined to implement the
reasonable and prudent alternatives recommended by FWS in certain cases where EPA has
disagreed that the recommended restrictions are necessary to avoid jeopardy. For example,
EPA may determine that the buffer zone established by the FWS for use of a pesticide near
critical habitat is larger than necessary and may decide to implement narrower restrictions
on use. Although the FWS does not have veto power over EPA actions, the FWS opinion
will likely be given weight in any claim alleging that EPA has violated either FIFRA's
"unreasonable adverse impact" standard or ESA's takings prohibition. This potential conflict
underscores the importance of EPA obtaining detailed information on the location of T&E
species, and the nature of pesticide use in those locations, during the consultation process.
The ability of states to undertake studies and refine habitat maps may also help in lessening
the potential conflict between agencies about mitigation measures.
47
-------
CHAPTER FOUR
THE TOXIC SUBSTANCES CONTROL ACT
The manufacture, distribution, use and disposal of toxic chemicals may present a
significant risk of injury to T&E species and their habitat. A recent report on the New
York/New Jersey Harbor Estuary indicates the presence of numerous toxic substances in
concentrations that exceed acceptable ambient levels in the water, biota and sediments and
thus pose a threat to the organisms inhabiting the estuary.204 The report also identifies
a gap in the biological data available concerning adverse effects of toxic chemicals in the
estuary. Another study of the same estuarysystem linked toxic substances with reproductive
failure, mortality and deformity in birds. EPA recently announced that it intends to
propose a rule banning the sale and manufacture of lead fishing sinkers because they pose
a threat to waterfowl.
The Toxic Substances Control Act (TSCA) provides EPA with a range of regulatory
tools to gather information about and regulate toxic substances in order to control their
harmful effect on the environment. Because TSCA §3 specifically defines "environment" to
include "water, air, land and the interrelationship which exists among and between water,
air, and land and all living things,"207 EPA's authority extends to controlling the effect of
toxic substances on T&E species and habitat.
To date EPA's efforts to protect T&E species have not relied extensively on the tools
available under TSCA. In part, the problem may be due to TSCA's unwieldy requirements
that EPA act by rule (even for information gathering) and the complex rulemaking
procedures that TSCA imposes.
I. PERMITS AND OTHER RELATED APPROVALS
Subject to certain exemptions, under TSCA no person may manufacture or process
a new chemical substance208 or chemical substance for a significant new use unless a
notice of such intention is filed with EPA 90 days in advance.209 Because the pre-
manufacturing notice (PMN) filing requirement triggers additional information gathering
and regulatory authorities under T.S.C.A. §5, EPA's determination as to whether a substance
is subject to the PMN requirement is important. EPA is authorized to determine by rule
which uses of a substance constitute a significant new use.210 In making this
determination, EPA is authorized to consider relevant factors, including the projected
manufacturing and processing volume, the extent of change in human and environmental
exposure, including change in type, form, magnitude and duration of exposure, and the
reasonably anticipated methods of manufacturing, processing, distribution and disposal.211
These factors are broad enough to include potential effects on T&E species or their habitat.
48
-------
Upon receipt of a PMN filing for a substance, EPA has a number of regulatory
options that it may use to support and promote protection of T&E species and their habitat.
One option available to EPA upon receipt of a PMN filing for a substance — if "good cause"
exists — is to extend the period before which manufacturing or processing may begin for
additional periods up to 90 days in the aggregate.212 This additional time may allow EPA
to gather more information or take other regulatory action to protect T&E species prior to
the manufacturing or processing of a potentially harmful substance.
Another option available to EPA to protect T&E species from potentially harmful
new substances or significant new uses of existing substances — if available information is
insufficient to allow adequate evaluation of the environmental effects of the substance — is
to issue a proposed order, or seek an injunction to take effect at the end of the 90-day
period, prohibiting or limiting the manufacture, distribution, use or disposal of the
substance.213 If EPA seeks an injunction, the court may issue a temporary restraining
order or preliminary injunction imposing similar restrictions if the notification period would
expire before the proceeding for the injunction can be completed.214 Again, this may
allow for EPA to gather information or decide upon another course of action prior to the
manufacture of the substance.
As noted above in the discussion of T.S.C.A. §5, EPA may in certain specified
circumstances grant an exemption from the PMN filing requirement. For example, EPA
may exempt persons who manufacture substances for "test marketing purposes" from the
filing requirement upon a showing that the substance will not present unreasonable risk of
injury to the environment.216 EPA could require that the assessment of risk of injury to
the environment include an assessment of potential risk to T&E species or their habitat.
In granting the exemption, EPA may impose any restrictions it deems necessary. These
restrictions could be designed to support and promote protection of T&E species.
EPA may also by rule exempt new substances that will not present an unreasonable
risk of injury to health or the environment.217 In order to make this determination, EPA
could require that applicants affirmatively demonstrate, among other things, that the new
substance will not harm T&E species or their habitat. In its regulation exempting chemical
substances manufactured in quantities of 1,000 kilograms or less per year from the PMN
requirement, EPA excludes from the exemption those substances (or "reasonably"
anticipated environmental transformation products) that may cause significant environmental
effects.218 "Significant environmental effects" includes "any known or reasonably
anticipated loss of members of an endangered or threatened species."219
Other circumstances that allow EPA to exempt a substance from the PMN
requirement include:
• If the chemical substance is equivalent to one for which data has already been
submitted and the submission would be duplicative.
49
-------
• If the chemical substance is to be manufactured or processed in small
quantities220 for scientific experimentation or chemical research.
• If the chemical substance exists temporarily as a result of a chemical reaction
and there will be no human or environmental exposure.
The granting of an exemption in all of these cases must be carefully considered by
EPA in order to prevent unforeseen adverse effects on T&E species. The information that
accompanies the pre-manufacturing notice may provide the basis for EPA to regulate a
substance in a manner that will protect endangered species. Moreover, as described in
detail above, the PMN notice filing requirement itself is a precondition to numerous
regulatory options that may not be available in the case of substances exempt from the filing
requirement.
TSCA also provides EPA with an opportunity to protect T&E species from the risks
created by imported chemical substances. Imports of chemical substances are subject to
approval under TSCA §13.221 The Secretary of the Treasury is authorized to deny entry
into the U.S. of substances that fail to comply with any rule under TSCA. EPA could
provide the Treasury Department with information about new substances that are being
developed abroad and that do not comply with TSCA and present a risk to T&E species.
Exports, on the other hand, are generally exempt from regulation under TSCA §12.222
However, the exemption does not apply if a substance presents an "unreasonable risk of
injury to the environment of the United States."223 EPA could use this authority to
prevent re-entry into the U.S. of products containing exported toxic substances that present
a risk to T&E species.
II. STANDARD SETTING
TSCA provides a number of opportunities for EPA to regulate the manufacture,
distribution, use, and disposal of chemical substances in a manner that would protect T&E
species and their habitat.
If, on the basis of test data or other available information, EPA concludes that a
chemical substance may present "a significant risk of serious or widespread harm to human
beings from cancer, gene mutations, or birth defects," the Administrator is required to take
appropriate action within 180 days of receipt of the information to prevent or reduce the
risk.224 Although the authorized response action must be primarily designed to protect
against risk to humans, protection of T&E species may result, indirectly.
If the manufacture, processing, distribution, use, or disposal of a substance subject
to the PMN requirement presents an unreasonable risk of injury to the environment before
a rule can be promulgated to protect against the risk, EPA must act before the expiration
of the applicable notification period to protect against the risk.225 EPA can adopt any of
the following by rules: limit the amount of the substance which may be manufactured,
50
-------
processed or distributed; limit particular uses; require instructions for use; require
maintenance of records; require certain methods of disposal; and/or require notice of risk
of injury and repurchase or replacement. Alternatively, EPA may issue an order or apply
for an injunction prohibiting the manufacture, processing or distribution of the substance as
of the expiration of the notification period. EPA could take any of these actions to protect
against risks to T&E species or habitat.
EPA's primary authority to regulate existing chemical substances in a manner that
will protect threatened and endangered species is found in §6 of TSCA.226 In
promulgating any of these rules, EPA could take into account the potential impacts of the
substances on T&E species and their habitat. If EPA has a "reasonable basis to conclude"
that the manufacture, processing, distribution, use or disposal of the substance presents "an
unreasonable risk of injury to the environment," EPA is required to act by rule to protect
against the risk "using the least burdensome requirement." The Administrator's rulemaking
options in this event include:
• Prohibiting or limiting the amount of the substance which may be
manufactured, processed, or distributed in general, or for a particular use in
a concentration in excess of a specified level.
• Requiring "clear and adequate warnings and instructions" to be marked on or
to accompany the substance.
• Requiring the making and retention of records concerning the manufacturing
or processing of the substance.
• Requiring monitoring and tests.
• Prohibiting or regulating any manner of commercial use of the substance.
• Prohibiting or regulating the manner of disposal of the substance or of any
article containing the substance.
• Requiring the giving of notice of unreasonable risk of injury and replacement
or repurchase.
EPA's application of any of these options may be limited in geographic scope.
When promulgating these rules, EPA must provide public notice and an opportunity
for an informal hearing. Interested persons are entitled to present their positions in
writing and orally, subject to procedural rules adopted by the Administrator. The design of
these procedural rules may be important to the protection of T&E species. For example,
EPA may determine which groups represent similar interests for purposes of cross-examining
interested parties.
51
-------
EPA may also specify the effective date of any rule, which is to be as soon as
feasible.228 Again, EPA's consideration of the potential risks to T&E species may be
critical in the exercise of this authority. EPA has the discretion to have a proposed rule
become effective immediately upon its publication if there is likely to be a "unreasonable
risk of injury to the environment," which could be used to prevent harm to T&E species.
Another way for EPA to protect T&E species and their habitat is through TSCA's
authority to regulate quality control procedures. Section 6 authorizes the Administrator to
review quality control procedures if the manner of manufacturing or processing of a
substance "unintentionally causes" the substances to present "an unreasonable risk of injury
to the environment." If the review shows that the quality control procedures are inadequate
to prevent such a risk, EPA may order the manufacturer to revise the quality control
procedures or notification of the risk and provision for replacement or repurchase.
TSCA also provides EPA with specific tools for addressing some of the risks that may
be presented to T&E species from polychlorinated biphenyls (PCBs)229. The manufacture,
processing, distribution and use of PCBs in other than a totally enclosed manner is generally
proscribed after January 1, 1978; any manner of manufacture is proscribed after two years
from January 1, 1977, and the processing and distribution of PCPs proscribed after two and
half years from that date. EPA may grant exemptions for up to one year from these
phaseout requirements only if an unreasonable risk of injury to the environment will not
result and a good faith effort has been made to develop a substance that does not present
such an unreasonable risk of injury.
TSCA requires EPA to adopt rules prescribing the methods of disposal of PCBs and
requiring warnings and instructions regarding their processing, distribution, use and
disposal.230 EPA's current regulations on disposal of PCBs do not specifically address
risks to T&E species. EPA can address these risks either through the promulgation of new
regulations or the preparation of specific guidance documents. Moreover, EPA is not
limited to using these authorities to regulate PCBs and may act pursuant to its other
authorities under TSCA or any other federal law to regulate PCBs.
III. ENFORCEMENT RELATED ACTIONS
EPA is given authority to enforce TSCA's requirements through civil and criminal
penalties and actions for specific enforcement and seizure of articles.231 Civil penalties
of up to $25,000 per day per violation are authorized. Criminal penalties include fines of
up to $25,000 for each day of violation or imprisonment for up to one year, or both.
Strategic application of these enforcement authorities may enable EPA to help
support and promote protection of T&E species. For example, EPA has the authority to
impose civil and criminal penalties if a person uses a commercial substance which the
person knows or has reason to know was manufactured, processed or distributed in violation
of TSCA. A substance that falls into this category may present a threat to T&E species that
52
-------
is not actionable under the ESA because it does not constitute a "taking" or other violation
under the ESA. Thus, TSCA may provide EPA with an alternative route to prosecute
threats to T&E species. Also, in calculating penalties for violations that result in harm to
T&E species, EPA could include the costs of restoring T&E habitat.
EPA can also act to protect T&E species and their habitat through its authority
under TSCA §7 to address "imminently hazardous chemical substances, by bringing
on action for seizure or injunctive relief. The authorized relief may include an order
requiring notification to purchasers of the risk, public notice of the risk, and recall and/or
replacement of the substance.
EPA is responsible for coordinating with other federal agencies to achieve maximum
enforcement of TSCA §9.233 EPA could coordinate information on threats to T&E
species from other agencies which could be prosecuted under TSCA. EPA must also
determine whether a risk presented by a substance may be prevented or reduced pursuant
to action under a federal law not administered by EPA.234 In this event, EPA must submit
a report to the appropriate agency describing the activities that present such risk and request
that the agency determine whether the risk may be prevented by action under the law
administered by the agency. If the other agency determines that the activities do not present
such a risk or if the other agency acts under the law it administers to protect against such
risk, EPA is precluded from taking action under Sections 6 and 7 of TSCA. EPA could
communicate information on risks to T&E species and habitat that may be better addressed
by other federal agencies, including FWS and NMFS.
EPA must also determine whether action under another federal law administered by
EPA could prevent the risks presented by a substance.235 If so, EPA is required to act
under such other law unless it is in the public interest to take action under TSCA.
The notice requirements for exports of certain chemical substances also provide an
opportunity for EPA to act to protect species and habitat If substances that are subject to
the rules requiring testing under §4 or pre-manufacturing notice and data submission under
§5 are exported, the exporter must notify EPA of the export of such substances.236 EPA,
in turn, must furnish the recipient country with notice of the availability of data for such
substance that has been submitted to the Administrator.
Similarly, if a person exports or intends to export a chemical substance which is
subject to regulation under TSCA because its safety is in question or data indicating safety
has not been supplied, the Administrator must be notified of such exportation. The
Administrator then must notify the government of the pending rule, order, action or relief
related to the substance. In both cases, EPA could include in its notice to recipient
countries information about specific risks to T&E species.
53
-------
IV. DELEGATION OF PROGRAMS TO STATES
TSCA §8 explicitly authorizes state regulation of chemical substances.238 However,
if EPA adopts testing rules for a substance or regulations to protect against injury to the
environment, such regulations will usually preempt state regulations. Upon application by
a state, EPA may exempt a state requirement from the prescribed limitations if compliance
with the state requirement does not cause a violation of the federal requirement and if the
state requirement provides a significantly higher degree of protection from the risk than the
federal requirement and does not unduly burden interstate commerce. States can still
prohibit the use of a substance or mixture in the state (other than its use in the manufacture
or processing of other substances or mixtures), even if EPA has adopted a regulation for
that substance pursuant to TSCA.239 States can use these limited authorities under TSCA
to enact requirements that provide significantly higher protection for T&E species and their
habitat.240
V. FINANCIAL ASSISTANCE
EPA is authorized under TSCA §28 to make grants to the states for programs to
prevent or eliminate unreasonable risks to the environment from chemical substances within
the state.241 The purpose of these grants is to complement, but not reduce, the authority
and actions taken by EPA pursuant to TSCA. Moreover, the grants are to be for programs
that address risks which EPA is unable or not likely to address. These provisions provide
an opportunity for EPA, through the states, to address risks from chemical substances to
T&E species or habitat located within one State. The grants themselves may be for
programs that directly prevent harm to T&E species or habitat. Alternatively, EPA could
require, as a condition to receiving a grant, that states adopt regulations which prevent
damage from chemicals to T&E species or habitat.
EPA may also enter into contracts or make grants in order to perform the research,
development and monitoring necessary for the collection, dissemination and use of data
required under TSCA §10. This funding authority may support and promote the
development of data systems, screening techniques, monitoring techniques, as well as the
training of technical personnel and the exchange of data. In each of these areas, there is
an opportunity for EPA to fund programs that would enhance protection of endangered
species and habitat by generating much needed information about how chemical substances
affect T&E species and habitat.
Similarly, EPA has the authority to make grants and enter into contracts with public
and private entities for projects for the development and evaluation of inexpensive and
efficient methods for determining and evaluating the environmental effects of chemical
substances.243 Again, this authority provides EPA with an opportunity to support and
promote the development of methods to determine the effects of chemical substances on
T&E species and habitat.
54
-------
EPA may also make grants and enter into contracts for the development of a data
retrieval system.244 This system may be designed to assist agencies which are involved in
the protection of T&E species and are looking for information concerning the effects of
substances on T&E species and habitat. EPA should actively work to build this data base
of information on T&E species and make it available to other federal agencies and states.
VI. INFORMATION GATHERING
A. Testing Chemical Substances
The required testing of certain chemical substances pursuant to §4 of TSCA provides
EPA with a significant tool for compiling information related to the effects of chemical
substances on endangered species and habitat. The exercise of EPA's authority in this
instance is also significant because other TSCA requirements and actions may be triggered
depending on the information obtained through testing.
Section 4 requires EPA to adopt rules requiring testing to be conducted on certain
substances in order to develop data on environmental effects. Rulemaking may be initiated
once EPA finds that the substance presents an "unreasonable risk of injury to the
environment" or that a substance will be produced in substantial quantities and will enter
the environment in substantial quantities or that there will be significant human exposure.
In each instance, EPA must also find that there is insufficient data from which the effects
can be reasonably determined, and that testing is necessary to develop data.
TSCA also authorizes EPA to give priority consideration to the adoption of testing
rules for substances recommended by an inter-agency committee.245 The inter-agency
committee is composed of eight members, including one appointed by the Administrator
from the Environmental Protection Agency.246 The committee is to identify and submit
to the EPA a list of not more than 50 chemicals meriting priority testing, and must review
and revise as necessary the priority list every six months. Although priority is to be given to
substances which cause cancer, gene mutations or birth defects, the committee is also to
take into account risk of injury to the environment in making its recommendations.
Upon publication of the list in the Federal Register, EPA must provide interested
persons an opportunity to file written comments on the list which are to be made available
to the public. Within 12 months of inclusion of a substance on the list, EPA must either
initiate a rulemaking for developing testing requirements or publish the reasons for not
initiating such a proceeding.
Rulemaking pursuant to §4 may also be initiated in response to a petition from a
person intending to manufacture or process a substance which is subject to the pre-
manufacturing notice requirements of §5 but for which a rule for testing has not yet been
adopted pursuant to §4. 7
55
-------
In promulgating a rule pursuant to §4, EPA has several opportunities to ensure that
data relevant to the protection of T&E species and habitat is developed. Section 4
authorizes EPA in promulgating these rules to identify the substance for testing, the
standards for the development of test data (including environmental effects and
characteristics for which standards may be prescribed) and the period for submitting test
results (which may not be of "unreasonable duration").248 The adequacy of these standards
must be reviewed at least every 12 months.
EPA also has the opportunity to ensure that information relevant to T&E species and
habitat is developed when selecting the person who is required to test and submit data for
a given substance. When two or more persons are required to conduct tests and submit data
under Section 4 EPA may allow them to designate one such person or a qualified third
person to conduct such tests and submit data on their behalf.249 There is a similar
opportunity to assure that information relevant to T&E species and habitat is developed
under §4(b)(5), which requires EPA to give interested persons an opportunity to make oral
presentations of their views regarding a proposed rule under Section 4, in addition to written
submissions.250
In deciding whether to grant an exemption from any rule requiring testing, EPA also
has occasion to ensure complete development of data related to the effects of substances
on T&E species and habitat. Section 4(c) allows the Administrator to exempt a person from
conducting testing if the substance for which testing is required is equivalent to a substance
for which data has been already submitted or is being developed and the submission of data
in this instance would be duplicative.
EPA has a further opportunity to influence the development and use of data to
protect T&E species and habitat pursuant to its authority under §4 to publish notice of data
received. The notice must identify the substance, list the uses or intended uses and
information required, and describe the nature of the test data developed.251
B. Listing of Substances
Section 5(b)(2)(B) of TSCA affords EPA another opportunity to publish information
on substances that are hazardous to T&E species or their habitat. EPA may by rule compile
a list of substances that present an unreasonable risk of injury to the environment.252
Uses of any listed substance that constitute a "significant new use" are to be identified. If
a person wishes to manufacture a new substance on this list for which there is no rule
regarding the submission of test data under §4, the person must nonetheless submit data
that will show that the manufacture, processing, distribution and disposal of the chemical
substance or any combination of such activities will not present an unreasonable risk to the
environment. Similarly, for substances to be manufactured for a significant use identified
on the list and for which there is no rule pursuant to §4 regarding the submission of test
data, the person must submit data showing that the intended significant new use will not
present an unreasonable risk of injury to the environment. In both of these situations, EPA
could require development of information on the impacts of the substance on T&E species
and habitat.
56
-------
C. Reporting, Recordkeeping and Warning Requirements
The pre-manufacturing notice and accompanying data required under Section 5 also
afford EPA an opportunity to compile critically needed information on the effects of toxic
substances on T&E species and habitat. EPA has the discretion to set the form and manner
of the pre-manufacturing notice.253 Test data on the effects of the substance on the
environment which are in the possession or control of the person giving the notice and a
description of any other data concerning such effects (as far as known or reasonably
ascertainable) are to be included.254 EPA also has the discretion to require a notice to
identify a substance more specifically than by its generic class if required in the public
interest. EPA may also issue notification and recordkeeping requirements for new chemical
substances about whose environmental effects it has concerns, including specifically for those
substances that present potential injury to threatened or endangered species.255 EPA can
use these authorities to gather information regarding the effect of a substance on specific
T&E species or specific habitats.
In order to take action to protect adequately against "unreasonable risk of injury to
the environment" from existing toxic substances, EPA is given specific information-gathering
tools. For those substances that may present such a risk, EPA may require the
manufacturers and processors to make and retain records concerning the manufacturing
process and to monitor or conduct tests.256 EPA could use this authority to gather
information on risks from existing substances to T&E species or habitat. EPA may also
require that the substance or any article containing the substance be marked with or
accompanied by clear and adequate warnings and instructions for use. EPA is to prescribe
the form and content of the warnings and instructions. In cases where a risk to T&E species
is presented, EPA can fashion specific warnings and instructions to prevent harm to the
T&E species or habitat.
D. Monitoring, Research and Data Systems
Section 10 of TSCA provides EPA with both general and specific information-
gathering tools that can be used to compile information on the environmental effects of
toxic substances. In general, EPA is given the authority to conduct the research,
development and monitoring necessary to carry out its responsibilities under TSCA.257
EPA is specifically responsible for establishing and running an interagency committee
charged with designing an effective system for the collection, dissemination and use of data
compiled by EPA pursuant to TSCA. EPA is also responsible for designing an efficient and
effective system for the retrieval of toxicological and other scientific data. EPA coordinates
research for the development of "rapid, reliable and economical" screening techniques for
ecological effects. EPA develops research on monitoring techniques and instruments and
training programs on newly developed screening and monitoring techniques. EPA also must
establish and coordinate an information exchange system for federal, state and local
authorities and promote standard data format, analysis and testing procedures. EPA could
use all of these tools to help gather and disseminate information on the effects of chemical
substances on T&E species and habitat.
57
-------
EPA also has an opportunity to gather information on the effect of chemical
substances on T&E species in connection with exercise of its inspection authority under
TSCA. Section 11 authorizes the Administrator to inspect any establishment, facility, or
premises where substances are manufactured, processed, stored or held before or after their
distribution in commerce, as well as any conveyance used to transport the substances in
commerce.
Pursuant to TSCA §12, EPA may require testing to determine whether a substance
manufactured, processed or distributed for export presents an unreasonable risk of injury
to the environment of the United States. This authority may be used to compile information
on risks to T&E species and habitat from exported substances.
EPA also has the authority to develop and evaluate inexpensive and efficient methods
for determining and evaluating the environmental effects of chemical substances.258
Again, this authority provides EPA with an opportunity to support and promote the
development of methods to determine the effects of chemical substances on T&E species
and habitat.
VII. MISCELLANEOUS
EPA must establish an office for providing technical and non-financial assistance to
the regulated community under TSCA §26.259 In providing such assistance and guidance,
EPA has another opportunity to take focus that assistance on actions that may support and
promote the protection of T&E species and habitat.
58
-------
CHAPTER FIVE
RESOURCE CONSERVATION & RECOVERY ACT
The Resource Conservation and Recovery Act (RCRA)260 is the central federal law
regulating solid and hazardous waste. RCRA was a 1976 amendment to the Solid Waste
Disposal Act (SWDA) and has itself been amended several times since. The Act's most
significant regulatory focus is on hazardous waste, waste considered particularly dangerous
to human health or the environment.
Solid waste disposal can affect T&E species in two general ways. First, the disposal
site may physically alter the environment. Second, as a byproduct of disposal, some of the
waste or byproduct of the waste may leave the disposal site and enter the environment, thus
altering it.
Physical impacts can be as straightforward as occupying territory and so displacing
species or their habitat. However, they can be much more subtle. Noise from a site could
disturb local wildlife populations. A waste site and the roads that serve it may break up or
fragment habitat, creating boundaries or edges that allow invasion of new species, perhaps
including predators or competitors of desirable species. Site and road construction may
promote soil erosion and sedimentation in nearby waterways, altering those habitats.
Dumps of brush or other wastes can themselves be sheltering habitat for raccoons or other
opportunistic predators and competitors. Improper storage of used tires can create catch
basins for rainwater which become nurseries for mosquitoes, which in turn may serve as
vectors of disease among other animals.
Impacts from entry of wastes into the environment may also range from
straightforward to subtle and indirect. In a straightforward case, the waste leaving the
disposal site might be toxic and could directly affect a listed species. Many (though not all)
toxics affect a broad spectrum of species, including humans. Because toxics can affect human
health, regulators, site designers, and operators are likely to be aware of toxics issues, even
if they are not always aware of effects on T&E species.
In a less direct case, the waste disposal site might release nutrients into the
environment that promote the growth of some species to the disadvantage of others. Simple
nutrients leaching into groundwater may promote growth of algae or decomposing organisms
when the groundwater reaches the surface. Rapid growth and decay of these organisms may
even strip the water of available dissolved oxygen, leading to the deaths of fish and other
aquatic life.
More complex nutrients, such as food wastes, may encourage the growth of scavenger
populations. At least two listed species have suffered from increased scavenger populations
associated with landfills. Herring gulls, which thrive on landfill wastes, also prey on the
59
-------
nests of roseate terns, a listed species.261 Ravens, which also take advantage of landfills,
prey on the eggs and young of another listed species, the desert tortoise.262
Even more indirect effects of waste on T&E species and habitat are possible. For
example, the methane typically produced by decomposition of landfill wastes is a potent
greenhouse gas. The environmental change caused by rapid greenhouse warming would lead
to multiple extinctions and species declines.
As the above discussion suggests, predicting the impact of waste disposal on T&E
species can be complex. The remainder of this chapter considers how specific EPA actions
under RCRA may create ESA obligations or opportunities.
I. PERMITS AND OTHER RELATED APPROVALS
The major permitting section of RCRA is §3005,263 requiring permits for treatment,
storage, or disposal (TSD) of hazardous wastes. The general standards for TSD operations
are designed to prevent or minimize release of hazardous wastes or their byproducts into
the environment. However, because their focus is so narrow, these standards may not
always be adequate to protect T&E species.
EPA's RCRA regulations recognize this and direct the regional administrators to
ensure that no actions are authorized that will likely jeopardize listed species or adversely
affect critical habitat.264 The regulations basically restate and incorporate by reference
the obligations imposed by ESA §7(a)(2) and its regulations. Other than assigning
responsibility for consultation to the Regional Administrators, the regulation gives little
guidance on when or whether EPA should consult. It also is silent on EPA's possible
obligations under ESA §2 and §7(a)(l) to go beyond avoiding harm and take steps to help
conserve T&E species and habitat.
The regulations focus on EPA's obligations at the time of permit issuance, but RCRA
gives EPA authorities that would allow the agency to deal with ESA-related problems that
arise after a permit is issued. RCRA 53005(c)(3)265 gives EPA authority to write
conditions into a permit "necessary to protect human health or the environment." EPA
could thus make compliance with the ESA a condition of a RCRA permit. EPA could also
require the permittee to monitor populations that might be affected, either as a condition
of the permit or under authority in RCRA §3013.266 Even if EPA fails to write species-
protecting conditions into a permit initially, §3005(c)(3) suggests that the Administrator has
the authority to review and modify permits at any time. In 40 C.F.R. §270.41 EPA reserves
the right to modify permits if new information comes to light justifying different permit
conditions. Presumably, for example, discovery of T&E species or their habitats at the site
would justify adding new permit conditions. Under 40 C.F.R. §270.41(b)(l) & .43(a)(3)
EPA may modify or revoke a permit if the permitted activity endangers human health or
the environment, which certainly includes creating risks for T&E species and habitat.
60
-------
Other EPA permit-like actions that might affect T&E species include approval of
interstate compacts under §l005(b),267 which might involve site-specific actions affecting
a species, and granting variances to the land disposal bans under §3004(h),268 which also
might have site-specific impacts.
II. STANDARD SETTING
The best known regulatory provisions in RCRA are in subtitle C, dealing with
hazardous wastes. These include authorities under §3001269 to list or delist hazardous
wastes and establish rules concerning small quantity generators and authorities under
§§3002-300427° concerning generators, transporters, and TSD facilities. National, non-site-
specific rules will seldom jeopardize a particular species or affect specific critical habitat,
but rulemaking may still offer EPA opportunities to help conserve T&E species. For
example, in listing wastes and controlling their handling, EPA could give special scrutiny to
wastes that bioaccumulate or are known to be implicated in species declines. Rules
governing siting of a facility could create special pre- and post-construction monitoring
obligations on facilities located in or near T&E species' habitat.
RCRA offers EPA regulatory leverage over non-hazardous solid waste disposal
practices as well. RCRA §4005(a)271 prohibits open dumping of solid waste. RCRA
§§ 1008(a)(3) & 4004(a)272 direct EPA to promulgate criteria distinguishing lawful sanitary
landfills from open dumps. At a minimum, sanitary landfills must present "no reasonable
probability of adverse effects on health or the environment."273 EPA regulations presently
explain this to include not causing or contributing to the taking of a listed species or
resulting in the destruction or adverse modification of critical habitat.274 These rules also
serve as guidelines for state solid waste programs.275
A. Lesser or Limited Authorities
Several other regulatory authorities in RCRA may have limited or more focused
bearing on ESA issues. These include RCRA 11006(b)(2)(B),276 which calls for guidelines
on emissions of dioxins from municipal solid waste incinerators. Dioxins are highly toxic
compounds that may bioaccumulate and have been found in tissue samples of T&E species.
Two sections of law codified with RCRA but not formally enacted as RCRA
amendments deal with regulation of plastic ring carriers.277 These devices hold beverage
cans together in six-packs. When improperly discarded, they can be ingested by or entangle
wildlife, including some T&E species. EPA has recently promulgated draft regulations
requiring these carriers to be made of materials that will degrade and so pose less of a risk
to wildlife.278
RCRA §3014279 directs EPA to promulgate regulations regarding recycled oil.
Because such oil often has heavy metals and other toxic components, and because a large
61
-------
quantity of such oil is improperly disposed of, these regulations might prove someday to
have influence on the survival of T&E species.
RCRA §3017280 directs EPA to promulgate certain regulations for export of
hazardous wastes and reserves the Administrator's power to promulgate further standards
using authorities in other sections of RCRA. This reserved authority might allow the
Administrator to restrict export of a waste to a country where treatment, storage, or disposal
has been known to affect a listed species.
RCRA §9003281 directs EPA to establish release detection, prevention, and
correction regulations for underground storage tanks. Hypothetically, a release from an
underground tank could affect a listed species. EPA might consider whether certain
circumstances, such as the presence of aquifers feeding streams that are part of critical
habitat, could warrant special rules.
III. ENFORCEMENT RELATED ACTIONS
EPA's enforcement authority under RCRA includes §3008 authority to issue
administrative orders and assess penalties against violators, or to seek analogous relief in
court;282 §7003 authority to take actions to abate imminent hazards;283 and §9003(h)
authority to abate hazards associated with leaking underground storage tanks.284 EPA also
has authority under §7002(d) to intervene in citizen enforcement actions.285
As under other statutes discussed in this report, EPA can factor ESA considerations
into its enforcement policy. Fines and other penalties, based on the seriousness of the
violation, can be increased to reflect damage or threats posed to T&E species or habitat.
Impacts on T&E species or habitat can be a factor in deciding whether to prosecute an
action or intervene in a citizen suit. An imminent threat of a taking of a listed species
should be ample justification for a §7003 or §9003(h) response action.
EPA's enforcement authority may be particularly important in moving against open
dumps. RCRA §4005(a)286 prohibits open dumps. EPA regulations declare any facility
causing or contributing to the taking of a listed species or destroying or modifying critical
habitat to be an open dump.287 If the facility is receiving hazardous household waste or
hazardous wastes from small quantity generators under §3001(d),288 §4005(c)(2)(B)289
allows EPA to take enforcement actions against the facility as if it were in violation of a
subtitle C hazardous waste provision. In any case, if the danger posed by the site to the
environment is imminent and substantial, EPA can take action against it under §7003
authority to abate imminent hazards. Thus, EPA has enforcement tools it can use to protect
T&E species and their habitats against the most dangerous open dumps.
62
-------
IV. DELEGATION OF PROGRAMS TO STATES
The major programs delegated to states under RCRA are the §3006 program for
hazardous waste regulation290 and the §9004 program for underground storage tank
regulation.291 In a related vein, §§4002, 4003, 4006, & 4007 provide for creation and
approval of state solid waste plans.292 As with hazardous wastes and underground tanks,
to gain approval of their solid waste plans, states must establish a basic level of regulatory
authority and meet standards set by EPA. Unlike these first two programs, states with
approved solid waste plans do not displace EPA in permit issuance and other actions.
Rather, they become eligible for federal financial assistance for their solid waste programs.
EPA's guidelines for development and implementation of state solid waste programs
require the plans to "provide for coordination with the Office of Endangered Species,
Department of the Interior, to ensure that solid waste management activities, especially the
siting of disposal facilities, do not jeopardize the continued existence of an endangered or
threatened species nor result in the destruction or adverse modification of a critical
habitat."293 The plans must also prohibit the establishment of open dumps and provide
for closing or upgrading of existing open dumps into lawful disposal sites.294 As discussed
in the previous section of this chapter, disposal sites threatening to harm T&E species are
by definition open dumps.
In contrast, the delegation provisions for the hazardous waste program under RCRA
§3006 are silent on ESA issues. Although EPA's hazardous waste permit program requires
the Regional Administrators to consult with FWS or NMFS on ESA concerns, EPA's
delegation standards do not require this of state hazardous waste programs. The
consultation requirement is conspicuously absent from the list of federal provisions that must
be implemented in state hazardous waste permit programs.295 As noted in the discussion
of permitting in this chapter, the federal program requirement is weak to begin with and
ignores EPA's obligations under ESA §§2 and 7(a)(1). EPA could rely on these two ESA
provisions to require state hazardous waste permitting authorities to consult with FWS or
NMFS and to impose permit conditions to monitor or protect potentially affected T&E
species and their habitats.
Under RCRA §9004, EPA may delegate primary enforcement authority for the
Underground Storage Tank program to the states (there are no federal UST permits). Like
the hazardous waste program, the UST delegation rules do not mention ESA issues,
although they do require states to have the authority to "restrain immediately and effectively
any person by order or by suit in state court from engaging in any unauthorized activity that
is endangering or causing damage to public health or the environment".296 The UST rules
could require the Administrator or the states to identify any potential ESA issues related
to underground tanks before approving state programs. The rules could also give guidance
on when state regulators should seek the opinions or assistance of FWS or NMFS to
determine if a tank-related problem may affect a listed species.
63
-------
Other delegation authorities in RCRA with some potential to raise ESA-related
questions include the §1005 authorities to approve establishment of interstate solid waste
management regions, agencies, and compacts.297 Establishment of these arrangements
could relate to the siting, operation, or regulation of waste handling facilities that, in turn,
could affect T&E species.
V. FINANCIAL ASSISTANCE
RCRA has several provisions authorizing grants or other financial assistance.298
Where these involve site-specific projects, they might occasionally trigger ESA §7(a)(2)
consultation requirements. RCRA expressly requires projects funded under some of its
provisions to comply with the §1008(a)(3) guidelines, which require protection of T&E
species.299 Even if RCRA or the implementing regulations do not expressly require it,
EPA may have discretion to impose conditions in a grant to protect T&E species and their
habitats, though determining the legal extent of EPA's discretion to impose conditions is
beyond the scope of this study. Certainly, where several worthy projects compete for limited
funds, EPA might weigh the projects' benefits or costs to protected species, habitats, or
biodiversity as a factor in making its grants.
VI. INFORMATION GATHERING
RCRA gives EPA several kinds of information-gathering and communication powers.
To begin with, EPA can obtain information from the regulated community. RCRA
53005(b)300 allows EPA to require applicants for permits to treat, store, or dispose of
hazardous wastes to submit specific information with their applications. EPA could use this
authority to require pre-permitting assessment of T&E species or their habitats that may be
affected by a facility. As already discussed in this chapter, EPA could require ongoing
monitoring of populations or habitats as a condition of a §3005 permit. RCRA §30O7301
allows EPA to enter and inspect sites where waste is handled, regardless of whether the site
is subject to a permit. RCRA §3013302 allows the Administrator to order monitoring or
undertake it herself at any site where release of a hazardous waste may present a substantial
hazard to human health or the environment. This section allows the Administrator to order
monitoring even if the site's permit does not require it, or even if the site is closed and has
no permit, and could be used to require monitoring for impacts of waste on T&E species
and habitat.
RCRA also has provisions supporting more general information collection or
research. RCRA 12002(a)(5)303 allows the Administrator to tap the expertise and facilities
of other federal agencies to perform EPA-funded, RCRA-related research. For example,
EPA could commission FWS or NMFS to investigate and report on the common impacts
of waste facilities on T&E species. Alternatively, the Administrator has ample authority
under RCRA §8001(a)304 to embark on such research entirely within EPA.
64
-------
RCRA also has a number of provisions supporting the dissemination of information
about solid waste. These include the §2002(a)(2) authority to disseminate information to
other federal agencies,305 the §2003 obligation to "provide teams of personnel ... to
provide Federal agencies, States, and local governments upon request with technical
assistance",306 and the §8003(e) requirement for an information dissemination program
on solid waste management.307 Though these provisions focus on technical aspects of solid
waste management, they seem broad enough to apply to issues such as the environmental
effects of management, or more specifically, the effects of solid waste practices on T&E
species.
Additional provisions may incidentally contribute to knowledge of impacts on T&E
species. Under RCRA §3016,308 all federal agencies are supposed to undertake an
ongoing inventory of their waste disposal facilities and report the results to EPA; EPA must
then prepare inventories for those agencies that fail to prepare their own. This program
dovetails into the large inventory of all hazardous waste sites carried out by the states with
EPA under §3012.309 These inventories may serve as useful data for future investigations
of the effects of waste disposal activities near populations of T&E species.
RCRA also has provisions designed to promote exchange of information within the
federal government. RCRA §2001(b)310 establishes an interagency committee
coordinating the resource conservation and recovery efforts of federal agencies, which could
seek the advice of FWS or NMFS concerning protection of T&E species and habitats.
RCRA §2002(a)(2)311 authorizes the Administrator to consult or exchange information
with other federal agencies about solid waste research and development efforts, which could
also be used by EPA to coordinate with FWS and NMFS in protecting T&E species from
adverse impacts from solid or hazardous waste.
65
-------
CHAPTER SIX
THE CLEAN AIR ACT
The Clean Air Act312 (CAA or Act) is the nation's central air pollution control law.
It aims to improve air quality through a variety of programs. Title I sets national ambient
air quality standards (NAAQS) for "criteria" pollutants and sets up a regulatory framework
to attain those standards in dirty areas and to prevent significant deterioration of clean
areas. That framework includes technology-based standards for new sources (new source
performance standards or NSPS) and sources of hazardous air pollutants (national emission
standards for hazardous air pollutants or NESHAPs). Title II contains provisions aimed at
controlling emissions from mobile sources. Title III contains general provisions. The
original Title IV, still in effect, deals with noise pollution. A new title, by clerical oversight
also captioned Title IV, deals with acid deposition. Title V establishes a permit system for
regulated sources of air pollution. Title VI deals with threats to stratospheric ozone.
Historically, the main motivation behind federal air pollution control efforts has been
protection of human health. Some parts of the Act are expressly aimed at human health
concerns (for example, the primary NAAQS).313 Protection of the public welfare or the
environment, however, is a coequal or secondary purpose of most of the provisions in the
Act.314 Thus, EPA's discretion under many parts of the Act may be used to the benefit
of species listed under the ESA Also, almost any action that EPA takes under the CAA,
mandatory or discretionary, may trigger specific obligations under the ESA if the action
threatens to jeopardize T&E species or affect their habitats.
Though the link between air quality and human health is well established, the link
between air quality and T&E species has been less studied. In the extreme case, air
pollution could kill wild plants and animals outright. Mercury toxicosis and associated
reproductive effects have been documented in the Florida panther. Before laws required
air pollution controls, the emissions from smelters, power plants, and other large industrial
facilities sometimes had dramatic effects on downwind forests.315 In recent years air
pollutants, including ozone, have been implicated in the decline of urban trees and of
various forests in Europe and North America.316 Some lichens are highly sensitive to
sulfur dioxide and their presence or absence can even serve as indicators of local ambient
air quality levels. Acid deposition may contribute to declines in aquatic life, including
amphibians and fresh water bivalves.317
Three serious, long-term threats to ecosystems - stratospheric ozone depletion, global
climate change, and increased ambient carbon dioxide levels318 - are also linked to air
emissions. The 1990 Clean Air Act Amendments added Title VI to the Act to deal with
ozone depletion, but the Act contains few authorities dealing with carbon dioxide or climate
change.
66
-------
Only four endangered species listings have specifically mentioned air quality factors
as contributing to species decline.319 Increased acidity, from acid rain, appears to have
contributed to the decline of one population of dwarf wedge mussels in Massachusetts.320
Decline of Spruce-fir forests due to acid rain has led to increased desiccation of the moist
exposed habitat of the spreading avens and the Roan Mountain bluet in the southern
Appalachians.321 And one researcher has speculated that poor air quality in the southern
San Joaquin Valley has given an edge to the pollution-tolerant plants that compete for
space, light, nutrients, and water with the California jewelflower.322
These cases illustrate a potential causal shortcoming with the ESA §9 and §7(a)(2)
protections. In each case, it would be difficult to establish any one source of the air
pollutants as a sine-qua-non cause of the decline in species. It would be hard to prove that
a particular automobile in Los Angeles or industrial source in the Midwest by itself was
jeopardizing or "taking" these species with its pollution, even if the overall pollution from
these areas was clearly affecting the species.
These situations involve groups of polluters whose individual contributions to the
problem are difficult to measure and small compared to the pollution impact as a whole.
Persons familiar with the way the courts and the Council on Environmental Quality have
dealt with cumulative impact situations under NEPA might argue that EPA would have to
prepare a biological assessment and perhaps consult with FWS or NMFS whenever it
approved a minor action that added to the cumulative harm.323 However, in a somewhat
analogous air quality situation, implementing the visibility requirements of CAA §169A,
EPA has argued that where science does not allow it to predict the exact benefit that air
quality controls will have on a protected asset, it is impossible for EPA to set a non-arbitrary
level of control for the source and thus it is appropriate for EPA not to take any special
protective actions until cause and effect can be determined more precisely.324
This reasoning may be limited to the special case and language of §169A.
Nonetheless, even if EPA has no ESA §7(a)(2) consultation obligation in these situations,
EPA may wish to heed the ESA §7(a)(l) direction to use its authorities to protect T&E
species. Furthermore, CAA §117(c)325 directs EPA to consult with other agencies before
taking certain regulatory actions. This provision will occasionally reinforce EPA's obligation
to consult with FWS or NMFS under the ESA, though the ESA §§7(a)(l) & (2) provisions
apply independently of, and in addition to, CAA §117(c).
Despite the uncertainties about air pollution impacts on T&E species, the Clean Air
Act offers EPA many opportunities to act in concert with listing agencies to protect these
species and their habitats. Some of these are discussed by category of action, below.
67
-------
I. PERMITS AND OTHER RELATED APPROVALS
The Clean Air Act creates a number of situations in which EPA is authorized to
grant a permit, a waiver, or similar permission to emit air pollution or take other actions
that affect air quality. Title V326 requires most stationary sources regulated by the Act to
have a permit issued by EPA or a delegated state. Title IV327 tradable allowances are
similar to permits, in that a given site must have allowances to pollute lawfully; but they are
distinct, in that the allowances are not tied to a particular site.
Whenever a permit is necessary for a project to proceed, if that project could
jeopardize T&E species or affect their habitat, EPA needs to evaluate and comply with its
obligations under ESA §7(a). Obligations may arise even if the impact of the project on
wildlife is unrelated to the air emissions being regulated. For example, if an oil refinery
needs an air permit to be constructed and the tanker traffic and risk of an oil spill
associated with the refinery could harm listed marine mammals, §7(a)(2) procedures might
apply. If in doubt about obligations in a particular situation, the EPA permitting officer
should consult with agency counsel.
Similarly, ESA obligations may arise even if EPA has no discretion in awarding the
permit. For example, EPA has little or no discretion under Title IV in awarding allowances
to affected units. It is possible, though, that EPA's granting of allowances would permit
a unit to operate whose pollution could jeopardize T&E species, or would permit a unit to
be built whose construction could damage their habitat. In such a case, the would-be
allowance holder might welcome EPA's initiation of the §7(a)(2) consultation process, as
it would clarify the extent to which the holder could use the allowances at a site without
violating ESA §9. For an individual source using allowances, a suitable context in which to
hold consultation might be the award of a permit to the unit under CAA §408.329
In many cases, once the permitting provisions are fully implemented, EPA will have
delegated Title V permitting authority to a state under CAA §502(d).330 Under CAA
§505(b)331 EPA will retain the duty to object to state-issued permits that it determines are
not in compliance with the CAA- EPA should object to a permit that may affect T&E
species, either positively or negatively, and EPA should review whether its action creates any
obligations or opportunities under ESA §7(a). If EPA objects to a permit and the state does
not take corrective action within 90 days of the objection, EPA must issue a revised permit,
which could raise the same sort of ESA issues as if EPA were the primary permitting
authority.
CAA §505(b) gives EPA only 45 days to object to a permit on its own motion, or 60
days to respond to a citizen petition. Both of these time limits are shorter than the 90 days
which ESA §7 allows listing agencies to respond to consultation requests. Unless EPA
works out an agreement with FWS or NMFS, or unless the underlying time limits are
changed, this is one of the circumstances under which ESA consultation may conflict with
the Act's statutory deadlines.
68
-------
Besides complying with any obligations under ESA §7(a)(2), EPA may wish to
exercise its discretion to help protect and restore T&E species, either through consultations
with FWS or NMFS under ESA §7(a)(l) or without consultation under the general ESA
§2(c) policy. For example, EPA could devise some standard language for air permits
making them subject to revision if operation of the permitted facility is found to affect T&E
species. Other permit-related actions, involving standards, delegation, and other topics, are
discussed below in subsequent sections of this chapter.
Several other permit, permit-like, or permit-related actions in the Act might offer
opportunities or demand actions to protect T&E species. The following discussion focuses
on those parts of the Act that expressly include protection of the environment (including
wildlife) as one of their purposes.
CAA §11 l(j)332 allows the Administrator to grant waivers from New Source
Performance Standards (NSPS) for innovative technologies or systems of continuous
emission reduction. Before granting such a waiver, the Administrator could consider
whether the source seeking the waiver might affect a T&E species.
CAA §112333 concerns standards for hazardous air pollutants. Two provisions,
paragraph (f)(2) granting waivers from enhanced standards, and subsection (j) issuing
permits for toxic sources in the absence of source category standards, involve site-specific
permit-like actions that control releases of toxic chemicals into the air and so could affect
T&E species.
CAA § 129(e)334 concerns permits for solid waste combustion units. These facilities
typically emit complex organics, heavy metals, and other chemicals that may bioaccumulate.
FWS has identified mercury emissions from an incinerator in Florida as a potential threat
to the endangered Florida panther.
CAA §165335 concerns issuance or review of preconstruction permits in prevention
of significant deterioration (PSD) areas, which are areas in attainment with national ambient
air quality standards. Permits for these sources must call for the "best available control
technology" (BACT). Under CAA §169(3),336 BACT is to be determined on a case-by-
case basis and should take into account environmental impacts. Clearly, if EPA is the
permitting authority, it should include impacts to T&E species in its calculus of BACT.
Even if EPA is not the permitting authority, it has specific authority under §165 to raise
objections to permits that will have an adverse impact on air-quality related values of "class
I" areas, which include most large national parks and wilderness areas. If a proposed permit
would adversely affect T&E species in such a class I area, EPA would have the authority
to block the permit.
If a source impairs visibility in a class I area, under CAA §169A(b)(2)(A)337 it may
have to adopt best available retrofit technology (BART). Though nominally BART is set
by regulation, it applies to a particular source, so setting BART resembles issuance of a
permit. In setting BART, the permitting authority may consider, among other factors,
69
-------
nonair quality environmental impacts, which presumably includes impacts on T&E
species.
CAA §173339 concerns non-attainment area permit requirements. These too will
be issued under Title V. However, the section requires that permits for sources in non-
attainment areas be consistent with achieving "reasonable further progress" towards
attainment. If T&E species in the area might be harmed by a criteria pollutant, that impact
might bear on what degree of progress would be reasonable.
CAA §188340 concerns classification and attainment dates for particulate matter
non-attainment areas. Area-specific extensions (subsection (d)) and waivers (subsection (0)
of attainment deadlines could hypothetically affect T&E species.
CAA §325341 gives the Administrator discretion to grant certain island territories
(such as Guam or the Virgin Islands) exemptions from many requirements of the Act. Such
actions may have site-specific consequences for T&E species. Because of the nature of
island biogeography, islands are often home to genetically distinct, endemic populations that
are vulnerable to extinction.
CAA 328(a)(2)342 allows the Administrator to exempt individual outer continental
shelf sources from subsection (a) regulations. As with other site-specific permissions to
pollute, this could conceivably raise ESA issues.
CAA §407 (d) and (e)343 provide for alternative emission limitations or emissions
averaging for nitrogen oxides from sources subject to the Title IV acid rain provisions.
Granting these might raise issues if T&E species are found to be sensitive to these
pollutants.
II. STANDARD SETTING
Because they are not site specific, EPA's issuance of air quality standards and
guidances will not often trigger mandatory action under the ESA. However, they may offer
EPA opportunities to protect plants and wildlife, and EPA may wish to consult voluntarily
with FWS and NMFS or otherwise act to protect T&E species, as ESA §2 requires.
An obvious area where EPA might consider the needs of T&E species is in selecting
criteria pollutants under §108344 and setting secondary NAAQS under §109.345
Secondary NAAQS are supposed to be sufficient to protect the public welfare,346 which
CAA §302(h)347 explains as including effects on vegetation and wildlife. This language,
coupled with the mandates in the ESA, would seem to compel EPA to be alert to effects
on endangered species when setting these standards. Ozone, a criteria pollutant, has been
implicated in the decline of some high altitude forest trees in the southern Appalachians,
which in turn has possibly contributed to the decline of two listed species, the spreading
avens and the Roan Mountain bluet.348
70
-------
Another potentially fruitful area will be in the setting of national emission standards
for hazardous air pollutants (NESHAPs) under CAA §112.349 Under paragraph (a)(1),
EPA can extend its regulations to smaller sources of pollutants if necessary to improve
control of toxics that bioaccumulate or that are dangerous for "other relevant factors." Either
of these reasons might apply in the case of a toxic pollutant affecting T&E species. Under
paragraph (b)(2), EPA can add a chemical to the list of regulated substances if the chemical
presents a threat of adverse environmental effects. Paragraph (a)(7) expressly includes
adverse impacts on endangered or threatened species as "adverse environmental effects."
Paragraph (f)(2) directs the Administrator eventually to adopt strict standards to prevent
adverse environmental effects if initial technology-based standards fail to do so and
Congress does not respond to a report on these risks. Paragraph (m)(6) authorizes EPA to
promulgate additional regulations to prevent "serious or widespread environmental effects"
from toxic air pollutants on the Great Lakes, the Chesapeake Bay, Lake Champlain, and
coastal waters. The study of toxic impacts on these "Great Waters" may also turn up
opportunities for EPA to protect T&E species from toxics. All of these provisions thus
allow EPA to factor impacts on T&E species into its hazardous air pollutant control
program.
CAA §111350 establishing new source performance standards. (NSPS) offers some
regulatory choices that ESA considerations could influence. EPA is allowed to consider
welfare effects, which would include ESA considerations, in deciding which sources to
regulate,151 which sources to regulate first,352 and whether to revise regulations in
response to a petition.
A more complex legal issue is whether ESA considerations may influence the level
of the standards themselves. CAA §111(a)(1) requires a "standard of performance" to
reflect the best system of emission reduction adequately demonstrated, taking into account
"the cost of achieving such reduction and any nonair quality health and environmental
impact and energy requirements" following from application of the standards. This
language, which appears in several other provisions of the Act, could be read to direct EPA
to consider countervailing factors that might soften its standards, or it might be read to
allow such factors to affect its standards either way. In the latter case, T&E species declines
might be an environmental impact that could justify setting higher NSPS standards.
The sections of the Act discussed above are the broadest standard-setting authorities
that may be used by EPA to aid T&E species, but there are many more specific authorities
that EPA might also use.
CAA §115354 empowers the Administrator to require revisions to state
implementation plans (SIPs) if pollution from within the United States affects public health
or welfare in other countries. So, for example, the Administrator could use this provision
to address threats from U.S. sources to T&E species in Mexican or Canadian territory,
provided the section's requirements for reciprocity are met.
71
-------
CAA §125355 empowers the President and others to order stationary sources of air
pollution to use locally produced fuels to prevent economic disruption that might be caused
by fuel switching or other pollution control strategies. It is hypothetically possible that an
order to use local fuels under this section could affect T&E species, for example, by
increasing activity at a coal mine in or near their habitat.
CAA §126356 allows governments to petition the Administrator to order reductions
of criteria pollutants (ones for which NAAQS have been set) from sources beyond their
jurisdiction, if the emission is contributing to violation of a NAAQS or prevention of
significant deterioration (PSD) increment. If a listed species were affected by a criteria
pollutant, responding to a petition might help protect the species.
CAA §129357 establishes EPA's authority to regulate emissions from solid waste
incinerators. As mentioned above in the discussion of permits, FWS has identified mercury
from incinerators as a potential threat to the Florida panther, a listed species. Under
paragraph (a)(3) of this section, EPA has authority to issue siting guidelines, which may be
able to reflect ESA concerns. The section also directs EPA to use its NSPS authority to
promulgate general performance standards for these sources. If initial performance
standards for incinerators leave residual risks to the environment, under paragraph (h)(3)
EPA may tighten those standards to protect environmental values, which would include
T&E species and their habitats.
The PSD program may allow EPA a narrow avenue to exercise authority on behalf
of T&E species. Under the PSD program, areas where the air is cleaner than the NAAQS
are not allowed to let their air degrade all the way to the standard. Instead, the Act sets
maximum allowable increases in ambient levels or calls for the Administrator to set
them.358 These increases are called increments. When setting increments, EPA may wish
to consider whether smaller increments would ever help protect T&E species.
CAA §183359 directs EPA to publish control technique guidelines (CTGs) for
sources of volatile organic compounds (VOCs). EPA may weigh ESA concerns, if any, in
deciding which CTGs to issue first. Subsection (e) directs EPA to set standards for
consumer or commercial products. These are supposed to be best available controls, but
the Administrator may weigh various factors, including environmental ones (and so
presumably ESA issues, if any) in setting the controls. Subsection (f) directs EPA to set
standards for the loading and unloading of tank vessels. No ESA link is readily apparent,
but these standards may reflect environmental concerns.
CAA §§188-190360 contain provisions added in the 1990 amendments especially for
particulate matter (PM-10) nonattainment areas. Unlike the provisions the 1990
amendments added for ozone and carbon monoxide non-attainment areas, the provisions
for PM-10 areas apply equally to primary and secondary NAAQS non-attainment areas. If
meeting secondary (welfare-related) NAAQS ever turns out to be important to T&E species,
the regulatory authorities here could take on added significance. Also, EPA may wish to
ask the FWS if the guidelines called for in §190 on control of particulates from prescribed
agricultural and silvicultural burning could ever affect management of T&E species.
72
-------
CAA Title II361 deals with regulation of mobile sources of air pollution. Though
the relationship between air emissions from mobile sources and T&E species is likely to be
indirect, several regulatory provisions in this title allow EPA to consider welfare effects or
environmental effects when setting standards. These include §202 emission standards for
new vehicles and engines,362 §211 regulation of fuels,363 §213 nonroad engines and
vehicles,364 §219 urban bus standards,363 §231 establishment of aircraft standards,366
§241 clean fuel vehicle definitions,367 §243 standards for light duty clean fuel vehicles,368
and §249 California pilot test program.369 The connections to T&E species, at this point,
are largely hypothetical, but EPA has the authority to take actions to help T&E species
under these sections if the need becomes apparent.
CAA §328370 directs EPA to issue regulations governing emissions from activities
on parts of the outer continental shelf (OCS). Hypothetically, the regulations issued here
could be important to listed species living in OCS waters or the coastal zone. Because a
number of T&E species live in or pass through OCS areas, EPA may wish to take a hard
look at possible impacts of air emissions on these species.
Section 406 of the 1990 CAA amendments, codified in a note following CAA
§401,371 provides for possible future regulation of industrial sources of sulfur dioxide. If
increases in emissions from industrial sources ever trigger this section, the Administrator will
be able to consider the general impacts of sulfur dioxide on T&E species in setting
standards for the sources.
CAA §403(b)372 directs the Administrator to promulgate regulations governing the
transfer of allowances under the Title IV sulfur dioxide control program. It is unclear from
the statute whether these regulations are to be simply procedural controls over transfers or
whether EPA may include substantive limits to transfers, such as voiding transfers where the
use of an allowance by the new owner could adversely affect T&E species.
CAA §407(b)373 directs EPA to set NOx emission standards for utility boilers.
Though these are basically technology-based standards, there is some discretion to vary them
based on environmental impacts, which would include general impacts of NOx on T&E
species.
Title VI of the Act374 concerns actions to protect stratospheric ozone. If any tie
can be demonstrated between ozone depletion and the survival of T&E species, the
Administrator has the discretion under §606(a)375 to accelerate phase out of ozone
depleting chemicals or under 615376 to take other regulatory actions to protect the
stratospheric ozone layer. Under §612,377 the Administrator can ban the use of substitutes
for regulated chemicals if the substitutes have harmful environmental effects of their own.
73
-------
III. ENFORCEMENT RELATED ACTIONS
It seems unlikely that an enforcement action taken under the CAA would ever
directly jeopardize T&E species and require consultation. EPA may have some opportunity,
however, to serve ESA goals in the setting of enforcement policy. For example, EPA has
some discretion to set the level of administrative penalties under CAA §113,378 which
deals with federal enforcement. If a listed species has been harmed by the violation, that
should go to the seriousness of the violation and the level of the penalty. As another
example, if an area failed to meet secondary NAAQS and that failure harmed a listed
species, EPA could make a special point of taking action under §179,379 which outlines
sanctions and consequences of failure to attain the NAAQS.
EPA has authority to take emergency actions under §112(r)(9)380 and §303381 to
abate imminent threats to the environment from air pollution. Section 303 authority
formerly only applied to threats to health, but in the 1990 amendments Congress expanded
that authority to apply to environmental threats and added the §112(r)(9) to respond to
threats of accidental releases of toxics. EPA also has authority under old §403 in the noise
pollution title382 to seek to abate objectionable noises from federal activities, albeit not
through court action. These authorities might be used someday against a source impacting
T&E species.
The CAA has specific enforcement authorities in a number of sections that are
analogous in one way or another to the more general authorities discussed above and might
be used in similar ways to protect T&E species. These sections include the §112(1)(7)383
authority to enforce toxics provisions in delegated states, the §167 authority to enforce PSD
requirements,384 and the §205 authority to assess civil penalties for violation of mobile
source standards.385 CAA §120386 calls for regulations governing noncompliance
penalties. Though the section lays out basically economic factors for computing a minimum
penalty, EPA has discretion to outline additional aggravating factors in its regulations. CAA
§304387 governs citizen suits to enforce the Act. The section gives EPA authority to
intervene in these suits; whether a listed species is affected could be a factor in the
Administrator's decision to intervene. CAA §411388 governs excess emissions penalties
under the Title IV acid rain control program. EPA has some discretion in determining the
period of time within which a violator must offset past excess emissions. There is a slight
possibility this could have an impact on a listed species.
IV. DELEGATION OF PROGRAMS TO STATES
Section 110389 approvals of state implementation plans (SIPs) could have significant
indirect impacts on some T&E species. SIPs must provide for meeting primary and
secondary air quality standards (though §110 provides no specific time limit for achieving
secondary NAAQS). The introduction to this chapter mentioned the possibility that ambient
pollution levels were contributing to the decline of a few listed species. If pollutants
74
-------
regulated in a SIP are clearly implicated in such a decline, EPA will want to be careful to
fulfill its ESA duties before approving the SIP or a SIP revision.
Given the difficulty some states have had in meeting air. quality standards, applying
the sometimes rigid strictures of the ESA to NAAQS attainment might seem an alarming
prospect. In the cases noted, though, the effect of high ambient pollution levels on listed
species has been indirect. In one case, it helped rival species compete for resources with
the listed species, and in the other case it harmed neighboring species that tended to shelter
the listed species from drying conditions. Although the ultimate goal of regulators ought
to be removing the environmental stress caused by the pollutants, some temporary
management efforts may well help offset the indirect effects of the pollution and avoid
jeopardizing the species.
Even if a SIP's impact on T&E species is not apparent at the time of delegation,
EPA could require SIPs to have general provisions to protect listed species. For example,
EPA could require states to consult with state and federal wildlife agencies on air program
actions that might affect T&E species or could require states to seek EPA approval for such
actions which, in turn, would require EPA to follow ESA requirements in granting that
approval.
The CAA includes several other delegation authorities that EPA should examine for
opportunities to include T&E species protection. For example, CAA §112(1)390 governs
delegation of hazardous air pollutant regulation. EPA may wish to include a discussion of
ESA issues in the guidance to the states required by paragraph (2).
CAA §121391 requires delegated states to have provisions for consulting with other
governmental bodies about the effects of their SIPs. Of particular potential relevance to
ESA issues, the states must consult with affected federal land managers. EPA regulations
on consultation could outline the need to explore ESA issues with those federal officials.
The Act's PSD provisions raise some delegation issues and opportunities. Section
16l392 requires SIPs to "prevent significant deterioration of air quality" in attainment and
unclassified areas. This language may have no meaning independent of the increments and
ceilings set out elsewhere in the PSD provisions. Read broadly, though, to serve the
purposes set out in §§101 and 160,393 any change in air quality that could harm T&E species
would be a significant deterioration, and EPA could disapprove a SIP that would allow such
a change. In addition, EPA's regulations under § 165(e)394 governing review of
preconstruction permit applications could require SIPs to provide for state consultation with
FWS or NMFS as part of the analysis of an application.
CAA non-attainment provisions also raise their own delegation issues. Section
172(a)(2)(B)395 requires areas to achieve secondary NAAQS "as expeditiously as
practicable." If the survival of a listed species depended on air quality, more expeditious
measures might be deemed practicable. Impacts on T&E species could also affect what rate
75
-------
EPA deems to be "reasonable further progress" towards attainment under §§171(1) &
172(c)(2).396 In other words, EPA has authority to require faster attainment of secondary
NAAQS if T&E species would be helped by that action.
The CAA Title V permit programs have delegation authorities that could be used
by EPA to protect T&E species. Section 502397 calls for a major delegation of permitting
authority to willing states. EPA could informally consult with listing agencies to come up
with additions to the delegation guidelines that would help protect T&E species. If EPA
makes protection of T&E species a requirement of a SIP, §504(a)398 would require state-
issued permits should also contain protections for T&E species.
Finally, CAA 328(a)(3)399 provides for state delegation of regulation of OCS
activities. EPA may be able to require those programs to have ESA-related protections.
V. FINANCIAL ASSISTANCE
Where EPA disburses funds to states and others under the Clean Air Act, it may
occasionally find itself funding a project with a direct impact on T&E species. For example,
funds for a research project might incidentally support construction of laboratory space in
some species' critical habitat. In such a case, EPA will have clear obligations to fulfill under
the ESA before issuing the grant.
More often, EPA will have opportunities to steer research and planning efforts
through judicious granting of its funds. Whenever EPA makes a grant, it should consider
whether it could attach conditions or directives that would contribute to research on
protection of T&E species.
The following sections may offer some opportunities in that direction. CAA §103400
provides for grants as part of EPA's air pollution research effort, discussed in more detail
in the next section of this chapter. CAA §104401 provides for grants relating to fuels and
vehicles. Because the thrust of the research program is on development of technology
rather than assessment of impacts, it will not often present clear opportunities to help T&E
species. CAA §112(1)(4)4® provides for grants to states for developing hazardous air
pollutant control programs. CAA §316403 allows EPA to attach certain air-quality-related
conditions to sewage treatment grants.
VI. INFORMATION GATHERING
Monitoring, research, and reporting offer EPA many creative ways to protect and
promote listed species. Poor understanding of the effects of air pollution on T&E species
may be contributing to their continued plight. The CAA gives EPA several authorities to
help fill those gaps.
76
-------
In rare cases, a research project itself may physically affect a listed species.
Hypothetical!)1, for example, the releases of toxics at the Liquefied Gaseous Fuels Spill Test
Facility called for in § 103(f)404 could be discovered to affect a listed species living nearby.
That would clearly raise issues of obligations under the ESA.
More often, research programs will afford EPA opportunities to aid the ESA
program. Here are some of the sections of the Act that authorize research, monitoring, or
reporting that could benefit T&E species.
CAA §103,405 authorizing a variety of research, investigation, training, and related
activities offers many opportunities to devote efforts to ESA concerns. These include
subsection (a) research on welfare effects, subsection (e) ecosystem and biodiversity impacts
research, and subsection (g) pollution prevention research with priority on pollutants posing
significant risks (e.g., to listed species). The note following the section calls for an ongoing
study of acid deposition in the West. Acid deposition has been implicated in the decline of
one listed eastern species of freshwater mussel, noted in the introduction to this chapter, and
has been suspected to contribute to the decline of western amphibian populations.
CAA §104,406 as noted in the previous section of this chapter, focuses on
technology, not environmental research. The note foltowing this section called for a study
of the environmental effects of burning used oil on ships, which perhaps could be important
to marine T&E species.
CAA §108, regarding air quality criteria and control technologies, includes subsection
(g), added in the 1990 amendments.407 That provision gives the Administrator discretion
to assess the risks to ecosystems, including habitats of T&E species, from criteria pollutants.
In the area of hazardous air pollutants, CAA §112( 1X3)408 directs EPA to evaluate
and maintain a clearinghouse on, among other things, assessment of ecological risk from
hazardous air pollutants. CAA §112(m)4OT calls for a study of toxic deposition in the
Great Lakes, the Chesapeake Bay, Lake Champlain, and coastal waters. EPA will have an
opportunity to learn how the toxics affect listed species. CAA §112(n)(l)(B)410 directs
EPA to assess the environmental effects of mercury emissions from electric utilities,
incinerators, and other sources. FWS has expressed concern about mercury emissions from
incinerators affecting Florida panthers, a listed species.
CAA §117411 allows EPA to create advisory committees to help in implementation
of the Act. EPA could create an advisory committee on T&E species, habitat protection,
or biodiversity issues related to air quality.
The note following CAA §179B412 directs EPA to establish a program for
monitoring air quality along the U.S.-Mexican border. Though the emphasis of the note
seems to be on physical and chemical monitoring, it might be broad enough to encompass
monitoring for environmental impacts, such as impacts on T&E species.
77
-------
The note following CAA §202413 authorizes EPA to arrange for ongoing National
Academy of Sciences (NAS) studies into the health and environmental effects of emissions
from new vehicles and engines. Such studies could include a look at effects on T&E species.
The 1991 study called for in CAA §213414 on impacts from emissions from nonroad
engines and vehicles could have looked at T&E species issues, if any, among the welfare
effects. CAA §312415 calls for comprehensive studies of the Clean Air Act's health,
economic, and environmental impacts. These could clearly look at impacts on T&E species.
CAA §319416 calls for establishment of an air quality monitoring system. Though the
thrust of the section calls for direct monitoring, it might also support environmental
monitoring if certain species were good indicators of air quality. Such monitoring might tell
EPA more about achievement of the goals of the CAA than simple chemical or physical
monitoring. CAA §402,417 (in the old noise pollution title) authorizes studies of noise
impacts on public welfare. The studies could include environmental effects such as impacts
on T&E species.
In the notes following CAA §401,418 (in the new acid rain title), a provision from
§404 of the 1990 amendments419 calls for a study of ecosystems sensitive to acid deposition
and the feasibility of an acid deposition standard to protect such systems. Such a study
ought to discuss impacts on T&E species. CAA §403(c)420 calls for a study on the
environmental and economic effects of permitting sulfur dioxide allowances to be traded for
nitrogen oxide allowances. This study could address whether interpollutant trading might
have implications for T&E species. CAA §404(b)&(c)421 deal with shifting of allowances
among units owned by a single owner during Phase I of the Title IV control program. The
subsections require the owner to apply for permission to reassign allowances, and the
application must include several kinds of information about the proposal, including "such
other information as the Administrator may require." If there is a possibility that the
substitution could affect T&E species, it seems reasonable that the Administrator would
require that information in order to ensure that any action EPA would take on the proposed
reassignment was in accord with the ESA.
78
-------
CHAPTER SEVEN
COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT
Congress enacted the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA)422 in 1980 as a comprehensive response to the improper disposal
of hazardous waste throughout the country, and to address the problem of hazardous
substance releases. EPA has broad authority and discretion to carry out the statute's
program for the cleanup of hazardous waste sites.423 The Act provides several methods
for achieving the cleanup of hazardous substances. One provision authorizes EPA itself to
take response actions as it deems necessary to protect the public health and the
environment. Congress also created the "Superfund" to pay for government-initiated
response actions. Aware that the costs of cleanup would far exceed the monies
appropriated, Congress also provided that, whenever possible, monies expended by the
federal government to respond to releases or threatened releases of hazardous substances
are to be recovered from responsible parties.
Without question, habitat loss is the primary cause of species endangerment in this
country. That habitat loss in turn is caused by a multitude of factors. The same hazardous
substances that can result in significant human health problems can also harm wildlife and
plants. Threatened and endangered species and their habitat are particularly vulnerable.
Listed species probably exist at numerous Superfund sites around the country, including
many federal facilities. Bald eagles, for example, are located at Hanford, Washington, and
at the Rocky Mountain Arsenal in Denver, Colorado. Under the ESA, EPA must develop
management plans for these species and coordinate with appropriate state and local agen-
cies.
VIII. PERMITS AND OTHER RELATED APPROVALS
CERCLA §105 requires EPA to prepare a National Priorities List (NPL) of the sites
where the agency knows that there has been a release or threat of release of hazardous
substances and to revise the list at least annually.424 To determine whether a given site
should be listed on the NPL and in assessing priorities among sites, EPA must consider the
relative risk or danger to the public health, welfare, or the environment. Criteria for
assessing this risk include, among other things, the hazard potential of the hazardous
materials, the potential for drinking water contamination, the potential for destruction of
sensitive ecosystems, and the damage to natural resources. EPA's authority under
CERCLA is generally construed broadly; thus, the agency could probably use this language
to weigh the presence of T&E species and the potential for harm to these species in making
NPL listing determinations. In assembling or revising the list, EPA must consider priorities
established by individual states. The agency has already adopted procedures for considering
T&E species once a site is listed on the NPL.426
79
-------
EPA should also factor the potential impact of proposed Superfund sites on T&E
species and their habitat into the early stages of the NPL site assessment process. As
described above, CERCLA itself requires that EPA consider impacts on sensitive ecosystems
and potential dangers to natural resources when considering site listings. Because these
listings may be likely to jeopardize the continued existence of T&E species or result in the
destruction or adverse modification of their habitat, EPA needs to consider these impacts
during the Superfund listing process. Compliance with the ESA is also necessary for EPA's
offsite cleanup actions and is recommended for cleanup actions conducted entirely onsite
as well.
Some EPA regions already review Superfund site documents for compliance with the
ESA. These procedures need to be more widespread and standardized throughout EPA.
Evaluation of habitat, threats to sensitive environments, and dangers to specific species can
all be reviewed during the Superfund listing process.
Even when EPA does comply with ESA procedures for T&E species found at an
NPL site, however, there is some question about whether the agency adequately integrates
the needs and wishes of the FWS or NMFS, the wildlife and natural resource agencies with
which EPA is most involved for CERCLA issues. The problem appears primarily to be one
of inadequate interagency communication: EPA may think it addresses the concerns of FWS
or NMFS, but the listing agencies feel their concerns have not been met. Methods for
improving communications could include the use of memorandums of understanding
(MOUs) among the agencies to clarify tasks, areas of joint implementation, and areas in
which each agency can provide expertise to the others. Joint training seminars could be
held to address not only ESA procedures but specifically how all three agencies can
integrate those procedures into the CERCLA program.
IX. STANDARD SETTING
CERCLA requires that EPA follow certain standards in conducting or overseeing
cleanup actions. CERCLA §121(a) specifies that response actions must comply with the
National Contingency Plan (NCP) and must be cost-effective. In evaluating cost-effective-
ness of a proposed remedial action, EPA considers the total short-term and long-term costs
of the action, including costs of operation and maintenance.427 CERCLA §121(b) directs
that permanent remedies be chosen, wherever possible, over nonpermanent activities.
Preferred remedies will include treatment that permanently and significantly reduces the
volume, toxicity, or mobility of the hazardous substances that have been released.428
In addition, CERCLA §121(d) requires that all remedial actions must at least attain
federal and more stringent state applicable or relevant and appropriate requirements
(ARARs) upon completion of remedial activities.429 ARARs can include standards
designed to protect T&E species or their habitats. The NCP requires compliance with
ARARs during remedial actions as well as upon completion of remedial activities; it also
compels attainment of ARARs during removal actions whenever possible430
80
-------
To comply with ARAR provisions, EPA must identify the federal and state statutes
and regulations that could apply to the particular site in question. This analysis includes
consideration of applicable ESA provisions, e.g., preparation of a biological assessment. If
a Superfund site potentially involves impacts on threatened or endangered species,
compliance with the ESA should be incorporated into cleanup activities and FWS or NMFS
involved as necessary. If EPA determines that a T&E species will be affected by the
planned action, the agency must take other action or incorporate mitigation measures into
its response action. EPA's activities at a Superfund site that may be subject to ARARs
protecting listed species include the handling of contaminated soil, incineration, releases of
air pollutants, and water discharges.
X. ENFORCEMENT RELATED ACTIONS
The very nature of CERCLA lends itself to a strong enforcement-related focus, and
many of the authorities granted and directions given to EPA concentrate on actions that the
agency can take to persuade someone else to undertake cleanup activities or pay for such
activities. Thus, many of EPA's CERCLA's authorities are enforcement-oriented.
A. Response and Abatement Actions
CERCLA §104 authorizes EPA to respond by conducting removal or remedial
actions whenever a hazardous substance is released or there is a substantial threat of release
into the environment.431 Removal or remedial actions must be consistent with the NCP,
which establishes procedures and guidelines for responding to hazardous substance
releases.432 The term "removal" refers to short-term actions that are necessary to "prevent,
minimize, or mitigate" damage that may be caused by the hazardous substances.433
"Remedial action" indicates an action taken with a more permanent remedy in mind; it can
be instead of or in addition to a removal action.434 EPA may authorize the owner or
operator of a facility at which there has been a release or threat of release of hazardous
substances to conduct the removal or remedial action. In addition to any other action that
may be taken by a state or local government, CERCLA authorizes EPA to initiate judicial
enforcement action in the form of abatement orders or to issue administrative orders as
necessary to protect public health, welfare, and the environment435 Failure to comply
with an abatement order without sufficient cause can subject a person to fines of up to
$25,000 per day.436
EPA has substantial authority under CERCLA to help T&E species in cleanup
actions, since the statute grants the agency strong authority to protect the environment and
public health. It also provides clear enforcement authority for EPA to ensure that cleanups
are conducted promptly and properly. The agency can thus use its authority to weigh
impacts on listed species as a factor in determining whether an immediate abatement action
should be pursued. There may be some need for EPA to be careful about going beyond
simple cleanup, because different standards apply for cost recovery of a straight cleanup
versus an action categorized as restoration or enhancement. The line between pure cleanup
81
-------
and "restoration" is not clear, however. If EPA or responsible parties clean up a stream,
thus improving degraded water quality, such action is clearly protection of the environment.
If the natural resource trustee stocks the cleaned-up river with fish, this action arguably is
"restoration" and is properly within the purview of the trustee rather than an activity in
which EPA should participate.
EPA has had, and will continue to have, opportunities to be creative in designing
basic remedial activities regarding cleanup methods and activities that can help T&E species
and their habitat. Simply by integrating natural resource damages assessments into the
remedial design and remedial action process, for example, EPA could forestall problems and
conflicts that can arise later in the process, since natural resource concerns would be
incorporated into the remedy. It is likely that responsible parties would be receptive to this
as part of settlement negotiations; otherwise, they face additional costs at a later date to
address natural resource damages.
B. Cost Recovery Activities
CERCLA creates a revolving fund that can be used by EPA as well as by state and
local governments to clean up hazardous waste sites that EPA has listed on the NPL.
Responsible parties are made strictly, jointly and severally liable under CERCLA §107 for
the costs of cleanup. Parties liable under §107 include generators and transporters of
hazardous substances, as well as past and present owners and operators of sites at which
hazardous substances have been disposed.
There are very few defenses available to a party that is potentially responsible under
§107. Only three defenses can apply: an act of God, an act of war, or an act or omission
of an unrelated third party.438 Additionally, a cost for which a person is liable under §107
constitutes a lien in favor of the federal government upon the person's real property.439
As a result of CERCLA's liability provisions, individuals and companies involved in any way
with the disposal of hazardous substances at a treatment, storage, or disposal site find it to
their advantage to work closely with EPA early on in the process so as to minimize cleanup
costs and thus their overall liability.
A potentially responsible party is liable to the federal or state government for injuries
to, destruction of, or loss of natural resources.440 CERCLA defines "natural resources"
to include "land, fish, wildlife, biota, air, water, groundwater, [and] drinking water sup-
plies."441 The definition includes resources in the offshore fishery conservation zone estab-
lished by the Magnuson Fishery Conservation and Management Act.442
The federal or state government is responsible for acting on behalf of the public as
trustee of affected natural resources and is directed to seek recovery for damages.443 The
NCP designates specific federal officials as the federal natural resources trustee; the
governor of each state designates appropriate state officials.444 Generally, NOAA is the
federally designated trustee with whom EPA must coordinate. Under CERCLA § 104(b),
82
-------
EPA must promptly notify the federal and state natural resources trustees of potential
damages resulting from hazardous substance releases under investigation. EPA also must
coordinate assessments, investigations, and planning with the trustees.445
EPA's settlement authority in CERCLA §122 contains specific provisions with respect
to natural resource damages.446 EPA must notify the federal natural resources trustee
whenever settlement negotiations involve a release affecting federal natural resources. A
settlement pursuant to §122 may include a covenant not to sue for federal natural resource
damages if the trustee agrees to such a covenant. The trustee may agree to a covenant not
to sue if the potentially responsible party agrees to take actions that will protect and restore
the natural resources involved.
There are a variety of activities that EPA can take with respect to natural resource
damages and the impact of such damages on T&E species. MOUs between EPA and other
agencies, such as FWS and NMFS, can go a long way towards improving the relationships
among the agencies and enhancing communications on ESA issues. An MOU could address
CERCLA specifically, or have a CERCLA component among other statutory issues on
which the agencies need to coordinate. The CERCLA aspect could focus on technical and
other assistance in the area of risk assessments for natural resources and can address the
appropriate degree of involvement for the federal natural resource trustee in assessments.
Generally, EPA should make the federal and state trustees aware of any information EPA
obtains as early as possible in the remedial action process. The agency could invite the
trustees to participate actively in the remedial process, in addition to merely notifying them
that natural resources may be affected at a particular NPL site.
EPA could provide educational opportunities to enable EPA personnel working at
a site (e.g., the remedial project managers or RPMs) to better understand the nature of the
ESA and to give them additional knowledge specifically regarding T&E species. Periodic
meetings at the regional management level with EPA, FWS and NMFS would also be
helpful. These meetings could discuss particular species that are or may be present at a site
and review CERCLA projects which are in progress or are scheduled for the near future.
This would give FWS and NMFS forewarning as to the possibility of listed species or
sensitive habitat being affected.
Federal Superfund sites must comply with the same CERCLA rules as private sites,
except for provisions relating to financial responsibility and contracts with state governments.
In particular, federal facilities are subject to liability for cost recovery, enforcement actions,
public participation requirements, and citizen suits.447 CERCLA leaves ultimate control
over cleanup at a site with EPA and prohibits EPA from delegating final authority to other
agencies. Thus, EPA's responsibilities in connection with ESA issues can easily arise when
T&E species are found at federal Superfund sites. EPA should take into account potential
impacts on T&E species when designing response actions for these sites.
83
-------
C. Overall Enforcement Authorities
CERCLA provides EPA with a strong array of enforcement authorities, giving the
agency flexibility in determining the process and timing of hazardous waste cleanup action.
Enforcement activities are specifically included within CERCLA's definition of "response"
action and thus enforcement costs are recoverable from responsible parties.448 EPA can
compel parties to conduct a cleanup pursuant to its abatement order authority under
CERCLA §106 or conduct the cleanup itself and seek reimbursement from the responsible
parties under §107. Additionally, CERCLA §122 provides EPA with general authority to
enter to settlements with potentially responsible parties.449 Given EPA's ability to compel
parties to conduct cleanups on EPA's terms with an abatement order or to seek
reimbursement for its costs through a civil cost recovery action, voluntary settlements are
the usual mechanism selected by responsible parties in order to have some influence over
the means and procedures for cleanup. EPA should, wherever possible, incorporate
protection for T&E species into these settlements.
CERCLA §109 authorizes administrative and judicial civil penalties.450 EPA may
assess administrative civil penalties for violations of reporting requirements under CERCLA
§103, financial responsibility requirements under CERCLA §108, settlement agreements
entered into pursuant to CERCLA § 104(b), and consent decrees entered into pursuant to
CERCLA §122.451 Factors EPA must consider in assessing a civil penalty include the
gravity of the violation, the violator's ability to pay, prior noncompliance history, economic
benefits from noncompliance, and other factors as justice may determine.452
Enforcement provisions are scattered throughout CERCLA, For example, failure to
comply with an information request under CERCLA § 104(e) can subject a person to civil
enforcement action.453 Failure to notify the National Response Center as soon as a
person in charge of a facility has knowledge about a release of hazardous substances in
reportable quantities can subject that person to criminal penalties.454 Knowingly submit-
ting false or misleading information in the notification can subject the person to criminal
penalties.455 Failure to notify EPA of the existence of a hazardous substance facility also
subjects a person to criminal penalties 456
These authorities provide EPA with considerable muscle with which to ensure
cleanup of hazardous substances. The agency can use its discretion in assessing penalties
and bringing civil actions to seek benefits to T&E species and their habitats that are
adversely affected by Superfund sites. EPA can increase assessment of penalties, for
example, to reflect a Superfund site's potential or actual threats to T&E species. The pres-
ence of listed species at a site could be included when EPA determines whether to seek an
abatement order or pursue cost recovery. Settlements could require landowners or facility
operators to take steps to protect T&E species.
84
-------
XI. DELEGATION OF PROGRAMS TO STATES
CERCLA does not provide for delegation of entire permitting programs, such as the
delegations authorized in the Clean Water Act for the NPDES permit program and the
dredge and fill program. It does authorize EPA to enter into contracts or cooperative
agreements with a state so that the state may take response actions at an NPL site.457
EPA may prescribe the terms and conditions in the contract or cooperative agreement, and
thus could include provisions intended to protect T&E species and their habitats and to
ensure that states comply with the ESA.458 If the state fails to comply with any provision
of the agreement, EPA may seek to enforce the contract, recover any costs advanced to the
state, or recover costs incurred due to the breach.459
XII. FINANCIAL ASSISTANCE
A. Use of Hazardous Substance Superfund and Other Reimbursements
CERCLA §111 provides appropriations for the Hazardous Substances Superfund,
which EPA can use for payment of governmental response costs in connection with releases
of hazardous substances and payment of claims for response costs incurred by other
persons.460 EPA can also use the Fund for technical assistance grants,461 assessment of
injuries to natural resources,462 oversight costs associated with remedial investigations and
remedial activities,463 and research and development costs.464 These categories are
sufficiently broad to allow the agency to use the Fund for costs associated with impacts on
T&E species and their habitats.
CERCLA §123 provides for reimbursement to local governments that are affected
by a release or threatened release at a facility.465 The costs must have been for temporary
emergency measures necessary to prevent or mitigate injury to human health or the
environment. Emergency measures may include fencing to limit access, response to fires or
explosions, or other immediate responses.466 The amount of reimbursement is limited to
$25,000 for a single response. EPA could use this provision to reimburse local governments
whose actions benefited or prevented harm to T&E species or their habitats.
CERCLA §117(e) authorizes EPA to make grants for technical assistance.467
These grants may be made to any group that may be affected by a release or threatened
release at an NPL site. The grant may be used to obtain technical assistance in interpreting
information regarding the nature of the hazard, RI/FS, record of decision, remedial design
or remedy selection, or removal action at the facility. EPA could use this section to make
grants to local groups involved in wildlife protection to facilitate their participation in
selection of remedial action plans that protect T&E species and their habitats at NPL sites.
85
-------
B. Awarding of Contracts
CERCLA has several provisions authorizing EPA to provide funds through the award
of contracts for cleanup activities. Because these provisions for awarding contracts fall
within EPA's discretion, EPA can include contract conditions that would require actions that
benefit T&E species or their habitats. CERCLA §104(d), for example, authorizes EPA to
enter into contracts or cooperative agreements with states so that the state may undertake
response actions at an NPL site.468 EPA may prescribe the terms and conditions in the
contract or cooperative agreement.469 If the state fails to comply with any provision of the
agreement, EPA may seek to enforce the contract, recover costs advanced to the state, or
recover costs incurred due to the breach.470 EPA may also provide technical and legal
assistance in the administration and enforcement to a state that is acting on behalf of EPA
in connection with cleanup activities.471 Using these authorities, EPA can require that
state response actions take into account impacts on listed species.
XIII. INFORMATION GATHERING
A. Remedial Investigation/Feasibility Study (RI/FS) Process
CERCLA authorizes EPA to undertake investigations, monitoring, testing, and other
information-gathering activities in order to identify the extent, source, and nature of a
hazardous substance release.472 These investigations may be conducted by a party
responsible for the release or threat of release if EPA determines that the party is qualified
to conduct the study and if EPA provides appropriate oversight.473
As part of this investigation and the general cleanup process, EPA may direct any
person to disclose relevant information pertaining to the identification of materials that may
have been stored or disposed of at a facility, the nature or extent of a release or threatened
release of hazardous substances, or information relating to a person's ability to pay for a
cleanup.474 EPA may also gain entry to a facility as part of its investigation or cleanup
and inspect a facility or collect samples of materials at the facility475 EPA should share
information gathered through this process with FWS and NMFS whenever potential threats
to T&E species are identified.
EPA already requires that as early as possible in the remedial planning process for
a given site, discussions with FWS or NMFS should be initiated to determine whether there
are listed species, proposed species, or critical habitats present in the area.476 Ideally, the
presence of T&E species should be determined prior to the RI/FS stage, at the scoping
phase of the process if at all possible. Informal consultations could be conducted at an early
stage to determine whether activity at a site is likely, to affect listed species or their habitat.
To encourage early communications and provide guidance, EPA could negotiate MOUs with
FWS and NMFS to specify activities for which each may request technical assistance from
the other, to include CERCLA activities such as RI/FS preparation in connection with T&E
species and habitat surveys where T&E species may be present. Such an MOU could also
address the ongoing role of the FWS or NMFS in connection with the protection of T&E
species during the entire EPA cleanup process.
86
-------
The usefulness of proceeding with informal consultations at this early stage is that
information gleaned from the process indicating that cleanup activity is not likely to
jeopardize a species can be communicated to FWS or NMFS. If cleanup activities are likely
to affect a T&E species, the agency should initiate formal §7 consultation and obtain a
biological opinion on whether activity will likely jeopardize the species. By following these
procedures, specific mitigation measures could be determined in most circumstances through
the consultation process and included in the ROD.
B. Investigation and Monitoring Authorities
In addition to § 104(b), which authorizes EPA to undertake investigations and moni-
toring in order to identify the extent, source, and nature of a hazardous substance release,
other CERCLA provisions authorize EPA to pursue various investigation and monitoring
activities.477 CERCLA § 104(e) authorizes EPA to require any person to disclose infor-
mation pertaining to the identification of materials that may have been stored or disposed
of at a facility, the nature or extent of a release or threatened release of hazardous substanc-
es, or information relating to a person's ability to pay for a cleanup,478 EPA may also gain
entry to a facility as part of its investigation or cleanup and inspect the facility or collect
samples of materials at the facility.479 Failure to comply with EPA's information requests
can subject a person to enforcement action.480
CERCLA's reporting and monitoring authorities can be used by EPA as a means of
collecting needed information regarding the protection of T&E species. EPA's authority to
ask for information pursuant to §104(e), for example, is quite broad, and the agency should
gather data on threatened and endangered species or habitat issues through this mechanism.
This information could be used in designing response actions; it could also enable the
federal or state natural resources trustee to make better, more informed decisions regarding
natural resource damages. The agency has the ability to obtain and share pertinent
information with the FWS and NMFS in areas of soil, air, water, and sediment
contamination regarding potential impacts on T&E species and their habitats.
C. Reporting Authorities and Requirements
CERCLA has a number of reporting requirements to ensure that EPA is apprised
both of the existence of facilities handling hazardous substances and of hazardous substance
releases. Failure to comply with these reporting requirements can subject the violator to
criminal fines.481 The statute requires, for example, that EPA be notified of the existence
of hazardous substance storage, treatment, or disposal facilities.482 Any person "in charge"
of a facility must notify the National Response Center483 if there is a release of hazardous
substances from the facility in quantities equal to or greater than the established mini-
mum.484 EPA can use the information it obtains through these requirements to gather
information on sites that may pose a potential threat to T&E species and their habitats.
87
-------
EPA is required to promulgate lists of substances that may present substantial danger
to the public health or welfare or the environment, and to determine the minimum quantity
of the substances to which the reporting requirements are applicable.445 EPA can include
potential threats to T&E species and their habitats among the criteria it uses for
determining whether a particular substance belongs on the list and in assessing the minimum
reportable quantity.
D. Research and Development Authorities
CERCLA directs EPA, in cooperation with the U.S. Department of Health and
Human Services, to establish a basic research and training program through grants,
cooperative agreements, and contracts.4®6 The research component of the program should
include epidemiologic and ecologic studies into the evaluation of effects of hazardous
substances on human health, risk assessment methodology, and consideration of biological,
chemical and physical methods to reduce the amount and toxicity of hazardous substances.
The training component encompasses courses for state and local health and environmental
agency personnel in handling of hazardous substances and management of hazardous
substances facilities, as well as graduate training in a wide variety of related fields.
The parameters for EPA's entering into grants and agreements are broad, leaving
EPA with considerable discretion in determining which research and training activities to
fund. The agency could encourage consideration of impacts on T&E species as a facet of
research activities, and include study of impacts on T&E species as a part of training
programs in hazardous substance handling.
XIV. MISCELLANEOUS
There are numerous means by which EPA could utilize existing authorities to further
ESA goals and conserve or benefit T&E species and their habitats. Without a doubt, EPA
should make a concerted effort to involve the Services and NOAA as early as possible in
the RI/FS and remedial processes. Although EPA does notify the natural resources trustee
of ongoing consent decree negotiations at Superfund sites, there appear to be inconsistencies
as to when this notice is sent.
MOUs with FWS and NMFS should be encouraged and used more freely to set forth
more clearly respective agency responsibilities concerning T&E species and cleanup
activities at NPL sites (e.g., natural resource damage responsibilities). This approach would
also ensure that discussions occur much earlier among the agencies involved, and thus would
facilitate coordination and communications.
To encourage crossover communications and skills training among the relevant
agencies, EPA could encourage IPAs between FWS or NMFS and EPA, perhaps having
FWS or NMFS personnel work directly with EPA at NPL sites. This could bring into EPA
some FWS and NMFS experience in addressing ESA issues, and it would increase knowl-
88
-------
edge and sensitivity among EPA personnel regarding natural resource damage concerns.
The reverse would also occur, i.e., having EPA personnel work more closely with FWS and
NMFS would improve knowledge within the services of CERCLA and its requirements and
directives.
EPA should encourage communications between EPA and FWS and NMFS on an
ongoing basis, both at the field level and upper management levels. EPA could include the
FWS or NMFS in periodic meetings, not just for personnel involved at a particular Super-
fund site but at the regional management level, equivalent to EPA's internal "docket review"
that is held, for example, with the U.S. Department of Justice on CERCLA matters.
EPA personnel directly involved at a particular Superfund site, e.g., the RPMs, may
have little familiarity with T&E species. Training and education in this area might alleviate
some of these concerns and encourage interagency communications between RPMs and col-
leagues at FWS or NMFS. If networking contacts and relationships can be established, an
RPM — or other EPA personnel involved at a particular site — would have a route to follow
to investigate questions regarding impacts on T&E species and their habitats.
89
-------
CHAPTER EIGHT
THE NATIONAL ENVIRONMENTAL POLICY ACT
I. BACKGROUND
The National Environmental Policy Act (NEPA or Act) calls on the federal
government to "use all practicable means. . . . [to] fulfill the responsibilities of each
generation as trustee of the environment for succeeding generations."487 The Act requires
federal agencies to integrate the consideration of environmental impacts into planning and
decisionmaking. NEPA therefore provides general policy support and guidance for EPA to
promote protection of T&E species throughout its program activities.
The most significant of NEPA's provisions with respect to T&E species protection
are those requiring federal agencies to undertake environmental reviews of their activities.
Under NEPA, all federal agencies, including EPA, must prepare a detailed statement
evaluating the reasonably foreseeable environmental impacts of their proposed major
actions. This integration of environmental concerns into decisionmaking is
accomplished through the preparation of environmental impact statements (EIS) or
environmental assessments (EA).489 An EIS is required for all actions that are expected
to have a significant impact on the environment. Where it is uncertain whether an action
will have a significant impact, the agency prepares an EA, which results in either a decision
to prepare an EIS, or a finding of no significant impact (FONSI). NEPA requires that the
agency preparing the document consult with any other federal agencies with expertise in, or
jurisdiction over, the environmental impacts being evaluated.
NEPA requires an agency to consider all environmental impacts, including broad
biodiversity issues as well as adverse effects on particular T&E species and habitats. This
requirement parallels the mandate of the Endangered Species Act, although the ESA's
provisions are detailed and prescriptive while NEPA requires only that agencies adequately
consider environmental impacts in their decisionmaking. While impacts of federal actions
on T&E species trigger NEPA as well as ESA requirements, NEPA explicitly states that its
provisions are in addition to any other statutory obligations of federal agencies.491
Under §309 of the Clean Air Act, EPA has an additional and unique environmental
review role: It reviews the environmental impacts of the proposed actions of other federal
agencies. Section 309 states that EPA
shall review and comment in writing on the environmental impact of any
matter relating to duties and responsibilities granted pursuant to this chapter
or other provisions of the authority of the Administrator, contained in any (1)
legislation proposed by any Federal department or agency, (2) newly
authorized federal projects for construction and any major Federal agency
action (other than a project for construction) to which section 4332(2)(C) of
90
-------
this title applies, and (3) proposed regulations published by any department
or agency of the Federal Government. Such written comment shall be made
public at the conclusion of any such review.492
EPA therefore has authority and responsibility for ensuring that other agencies adequately
consider environmental impacts, including T&E issues, in their decisionmaking.
EPA's activities under NEPA and §309 are closely related to the ESA requirement
that EPA and other federal agencies review their actions for impacts on T&E species and
their habitats. There is a dual relationship between these two statutory areas: ESA
evaluation and consultation processes can contribute information to other federal agencies
that is vital to the preparation of comprehensive NEPA documents; conversely,
environmental impact analysis and EPA environmental review can help ensure that an
agency has identified any actions that "may affect" T&E species. EPA's activities under
NEPA and §309 provide an opportunity for the agency not only to promote ESA's general
goals of enhancing biodiversity and conserving species, but also to help coordinate
compliance with the provisions of the ESA.
II. EPA'S PREPARATION OF NEPA DOCUMENTATION
Under EPA's NEPA regulations, EPA may be required to prepare an EIS in six
areas: 1) wastewater treatment construction grants; 2) solid waste demonstration projects;
3) EPA facilities; 4) research and development programs; 5) new source NPDES permitting;
and 6) certain EPA activities abroad.4 With respect to the first four categories, an EIS
is required where the proposed action may significantly affect T&E species or their habitats,
or where a structure or facility constructed or operated under the proposed action may be
located in T&E habitat.494
Other than in these areas, EPA has been exempted from preparing formal NEPA
documentation under certain statutes (e.g., the Clean Air Act and parts of the Clean Water
Act), and through the development of the judicial doctrine of "functional equivalence."
According to this doctrine, where EPA's environmental protection activities are considered
the functional equivalent of EISs, the agency is not required to comply with NEPA's formal
documentation requirements.495 Although many EPA actions will not require formal
NEPA documentation, those actions could affect T&E species. The agency should therefore
ensure that all programs include consideration of impacts on T&E species, as is required
under NEPA. This could be done by creating general guidelines that are applicable agency-
wide or more specific guidelines for particular program offices, which set out procedures for
ensuring compliance with the ESA.
EPA's regulations require the preparation of an EIS in connection with NPDES
permitting where any "major part" of a new source will have a significant adverse impact on
the habitat of T&E species.496 However, NEPA requirements only apply to EPA's
NPDES permitting in the small minority of states where program authority has not been
delegated to the states. EPA might also require — e.g., in the context of state program
91
-------
delegation or program review — that states adequately assess the impacts on T&E species
of state NPDES permitting actions.
The wastewater treatment construction grants program, one of the most significant
areas of NEPA documentation in the past, is being phased out. Under the current state
revolving fund (SRF) program,497 EPA maintains that where a state has entered into a
SRF agreement, EPA no longer has NEPA responsibilities for projects connected with the
funds. EPA can promote T&E species protection in this context by requiring that states
who enter into SRF agreements implement NEPA-like review processes which include
adequate consideration of T&E species issues. Such a requirement has already been
implemented, for example, with respect to EPA's SRF agreement with the state of New
Jersey.
III. EPA'S ENVIRONMENTAL REVIEW ACnVITIES
EPA is more active in reviewing the environmental impact analyses of other federal
agencies than in preparing its own NEPA documents. This section discusses factors affecting
the ways in which EPA's §309 review activities can help coordinate NEPA and ESA
compliance requirements. The issues described below, however, may also be applicable to
EPA's preparation of NEPA documentation for its own activities.
A. The Scoping Process
EPA has an opportunity, like other federal agencies and the public generally, to
comment on an agency's scoping of an EIS. Scoping is required prior to the preparation of
a draft EIS, in order to determine "the scope of issues to be addressed and [to identify] the
significant issues related to a proposed action."498 EPA may comment on an agency's
published notice of its scoping determination if, e.g., the range of impacts to be considered
in the EIS is so restrictive as to exclude potential T&E species issues. EPA can also
indicate at this point what documentation or studies it feels may be necessary to analyze
adequately any impacts on T&E species.
During the scoping process, the federal agency preparing the NEPA document (the
"lead agency") must also identify other environmental review and consultation requirements,
so that they can be coordinated with NEPA analyses.499 This provision provides EPA with
a direct opportunity to ensure that other agencies are coordinating their NEPA
documentation with any review and consultation necessary under ESA,
In addition to commenting on the scoping process with respect to individual projects,
EPA can become involved in scoping on a larger scale. In 1991, EPA prepared a timber
sales scoping guidance, which provides the U.S. Forest Service with information about what
EPA Region 10 looks for in EIS documents relating to timber sales. The scoping guidance
includes a section on ESA issues.
92
-------
B. Review of the Adequacy of Environmental Impact Analyses
Although there are no formal "checklists" that are used agency-wide in reviewing
NEPA documents, impacts on T&E species appear to be a routine item in the EPA review
process. Where a document fails entirely to mention these issues, EPA review would
generally require that the agency take adequate steps to incorporate consideration of such
impacts. It may be unlikely that an EA/FONSI or draft EIS would omit any mention of
T&E species issues. The more common and complex question facing EPA reviewers is how
to assess the adequacy of an agency's treatment of impacts on T&E species. In this regard,
the level of experience and training of reviewers is an important factor affecting the extent
to which EPA reviewers can promote the goals of the ESA through NEPA review.
An agency's environmental impact analysis may conclude that there are no listed
species or critical habitat present in the area affected by the federal action. In such cases,
EPA might examine the scope of the impacts covered by the NEPA document to ensure that
T&E species were not overlooked due to an agency's overly restrictive scoping of the
document. EPA reviewers might also ascertain the types of information used by the lead
agency — e.g., data from geographic information systems or information from sources such
as state Natural Heritage Programs, academic institutions and nongovernmental
organizations. In appropriate cases, EPA could require T&E species survey or other
documentation to support the lead agency's conclusion.
In order to determine whether the lead agency has omitted consideration of any
species or habitat of concern, EPA can maintain informal contact with the FWS, the NMFS,
and state fish and game agencies. Where there is any question that a draft EIS or
EA/FONSI has not adequately documented its conclusions about the presence or absence
of T&E species or habitat, EPA telephone contact with the FWS or NMFS about the
particular project may be a valuable source of information. Where EPA has established
regular communications with the FWS/NMFS, the agency might also be likely to receive
unsolicited information from those agencies — e.g., copies of consultation letters prepared
by FWS, or telephone calls — which would give the EPA reviewer background on any
species/habitat issues of concern on a particular project. The public review and comment
process is another way in which potential impacts on T&E species or habitat can be
identified, and thus alert EPA reviewers to potential ESA issues.500
Where a NEPA document does identify species or habitat of concern, EPA reviewers
can assess how thoroughly the document evaluates the impacts of the project, including how
the scope of impacts has been defined in the document. This assessment will determine not
only whether the document satisfies NEPA requirements, but also whether the agency has
adequately addressed ESA requirements. Under the ESA, a federal agency is required to
complete a biological assessment (BA) if listed species may be present in the area of a
proposed action involving a "major construction activity." Ideally, the agency's BA (and any
FWS/NMFS response) would be incorporated into the NEPA document, since the
assessment would reflect the possible impacts from the project on species or habitats.
93
-------
Indeed, §7(c)(l) of the ESA states that the BA "may be undertaken as part of a Federal
agency's compliance with the requirements of section 102 of [NEPA]."
EPA has recently issued a report, "Habitat Evaluation: Guidance for the Review of
Environmental Impact Assessment Documents," which will help reviewers to assess better
the conclusions in a draft EIS or EA/FONSI regarding impacts on species and habitat.
Noting that physical alteration of habitat has surpassed intentional and incidental taking as
the major cause of population reduction among many species, the report focuses on the
direct physical effects on habitat of a wide range of activities that may be the subject of
federal review. The report also points out the importance of considering, in the context of
a complete environmental assessment, the impacts of contamination, the cumulative impact
of multiple effects, and the indirect effects of activities.501 EPA can use this document to
improve its analysis of whether a federal agency action may affect any T&E species or their
habitats that have been identified.
C. Coordination of NEPA Documentation and ESA Consultation
EPA could make the NEPA review process easier and more effective by requiring
that ESA documentation be included in a project's EIS or EA/FONSI. As noted earlier,
the same analysis undertaken for a biological assessment — whether the project may impact
T&E species or habitat — is needed for preparation of a draft EIS or EA/FONSI. Similarly,
the biological opinion or response letter from FWS/NMFS provides the detailed evaluation
of impacts and recommended alternatives that may affect how a project is implemented.
At the same time, by requesting that ESA consultation documents be incorporated into the
NEPA documentation, EPA's review can ensure that impacts on T&E species are being
addressed in the context of the ESA.
EPA Region 10 has already taken a step in this direction. The Region's scoping
guidance for timber sales requires the coordination of ESA and NEPA documentation. The
scoping guidance states:
If threatened or endangered species are potentially affected by
the timber sale, the draft EIS should include the Biological
Assessment and the associated [FWS] Biological Opinion or
normal concurrence.... The final EIS and Record of Decision
should not be completed prior to the completion of ESA
consultation.502
NEPA calls for this type of coordination by requiring that prior to preparing
environmental impact documents, lead agencies "consult with and obtain the comments of
any other federal agency that may have jurisdiction over the subject matter of the proposed
action.503 Copies of these comments are to accompany the agency's proposal through
agency review processes, and be made available to the public.504
94
-------
The regulations promulgated under NEPA by the Council on Environmental Quality
(CEQ) address the coordination of NEPA and ESA requirements in two important ways.
As mentioned above, the regulations require lead agencies to identify during the scoping
process any other (non-NEPA) review or consultation requirements, so that any studies or
analyses can be prepared "concurrently with, and integrated with" preparation of the EIS.
The regulations also require that lead agencies coordinate the preparation of NEPA
documents with the documentation requirements of other federal statutes, including the
ESA. The regulations state that
to the fullest extent possible, agencies shall prepare draft
environmental impact statements concurrently with and
integrated with environmental impact analyses and related
surveys and studies required by . . . the Endangered Species
Act.. .
With respect to EPA's preparation of environmental impact analyses, EPA's NEPA
regulations state that the official in charge of preparing the environmental impact analysis
is to integrate the requirements of the ESA with the requirements of NEPA.
EPA therefore has an opportunity to coordinate the preparation of its own
environmental impact analyses with ESA requirements, and to ensure that other agencies
coordinate the documentation requirements of NEPA and ESA to the fullest extent possible.
For example, where a draft EIS refers only to the fact that (informal or formal) consultation
has taken place, EPA could request in its written comments that the final EIS contain the
biological assessment and the biological opinion or other FWS/NMFS response. In cases
where there is no reference to consultation and no inclusion of any biological assessment
or FWS/NMFS response, EPA might determine that it is appropriate for the lead agency
to include the relevant ESA documentation in the final EIS. Or EPA can request that the
lead agency revise the section of a draft EIS addressing T&E species and habitat issues, as
is required under the CEQ regulations in cases where the relevant section of the draft EIS
is "so inadequate as to preclude meaningful analysis."307 EPA might also conclude that
a supplemental EIS is required, if ESA consultation produces alternatives not evaluated in
the current EIS. Inclusion of such information/alternatives prior to the record of decision
(ROD) stage will help to ensure that alternatives are thoroughly considered and subject to
public comment.
If EPA requires an agency to document potential impacts on T&E species, whether
under NEPA or ESA, it might create timing conflicts if a lead agency faces statutory or
regulatory deadlines for carrying out a proposed action, but those deadlines would have to
yield in order to ensure that the agency complies with ESA. Although NEPA contains no
explicit time framework for preparing environmental impact analyses, the CEQ regulations
do require that an EIS be prepared early enough to serve as a decisionmaking tool, rather
than an after-the-fact summary of a decision already made.508 More prescriptively, the
ESA requires that any biological assessment be completed prior to the initiation of
construction on a project, and that following the initiation of consultation, no irreversible
commitment of resources be made be made by the agency or applicant which might
95
-------
effectively foreclose the implementation of any alternative measures recommended by the
FWS or NMFS.509 Thus, EPA can combine its NEPA and ESA responsibilities to ensure
that an EIS adequately analyzes impacts on T&E species before agency action proceeds.
D. Commenting on NEPA Documentation
EPA uses a rating system for evaluating other agencies' draft EIS documents. EPA
rates both the adequacy of the document and the environmental impacts of the project itself.
For example, where the EIS fails to adequately address potential impacts on T&E species
or their habitats, EPA can give the EIS document a numerical rating signifying that there
is "insufficient information" or, worse, that the document is "inadequate" overall. Though
less likely, EPA could rate the project itself as raising "environmental objections" or in
extreme cases rate the project as "environmentally unsatisfactory." Along with its ranking,
EPA provides written comments on the EIS and can offer guidance on how to improve the
document. For example, EPA may request information such as a survey of T&E species
and habitat, or may request a supplement to the draft EIS.
Although EPA's comments on a proposed project are advisory, §309 does authorize
EPA to refer matters to the CEQ where EPA determines an agency activity is unsatisfactory
in terms of its impact on environmental quality or the public health or welfare.510 Such
authority extends beyond EIS review to any legislation, project or regulation subject to
EPA's review under §309. Nevertheless, referral to the CEQ is described as a last resort
in the CEQ regulations, and has been used only infrequently. It may be unlikely that EPA
would make such a referral concerning T&E species problems, given that the FWS and
NMFS have jurisdiction in these areas and would probably request CEQ referral themselves
or take other action in serious cases.
E. Review of Proposed Actions Absent NEPA Documentation
In addition to the review of draft EISs, EPA is authorized to review other agencies'
proposed legislation, proposed regulations and "any proposal that the lead agency maintains
does hot require an EIS but that EPA believes constitutes a major federal action
significantly affecting the environment so as to require an EIS."511 EPA therefore has
authority to evaluate and comment on federal projects that may not be the subject of much
public scrutiny. EPA can, for example, review agency actions that qualify for "categorical
exclusion" from formal NEPA documentation requirements.512 EPA can also review
EA/FONSIs where there are potential impacts on T&E species or their habitats. The
agency can use its NEPA authorities more proactively by identifying actions that may impact
T&E species and for which there has been no NEPA compliance. The extent to which EPA
can successfully exercise its authority in this way depends on whether it develops adequate
means of obtaining timely information on proposed projects from other federal or state
agencies or from the public.
96
-------
CHAPTER NINE
OTHER EPA AUTHORITIES
THE SAFE DRINKING WATER ACT
The Safe Drinking Water Act (SDWA or Act) is essentially a human health
protection statute which provides a framework for EPA regulation of public drinking water
systems. EPA is required to establish maximum contaminant levels and, where appropriate,
water treatment techniques to control the level of certain contaminants in drinking water
provided by public water systems. These regulations apply to contaminants that are
specified in the Act as well as additional contaminants that are identified by EPA pursuant
to the Act.513 Because the setting and enforcement of these standards relate to human
health risks from drinking water, they do not generally raise T&E species questions.
The SDWA is also concerned with groundwater protection. Certain listed species —
e.g., the fountain darter and the San Marcos salamander — live in water bodies that are
integrally connected to underground water systems. Others, such as the Madison Cave
isopod, are found only in restricted groundwater systems. Therefore, although there has
been little, if any, recognition of T&E species issues associated with the SDWA,
groundwater protection actions authorized or required under the Act may raise concerns
about T&E species and habitat protection. This is perhaps most likely in the underground
injection control program, which is designed to ensure that injection of materials into the
ground does not contaminate underground water sources. Various additional provisions of
the SDWA provide EPA with opportunities to take impacts on T&E species into account
in the protection of underground drinking water sources.
I. UNDERGROUND INJECTION CONTROL PROGRAM
A. Permit Reviews
The SDWA requires permitting (or approval by rule) of all underground injection,
defined in the Act as the "subsurface emplacement of fluids by well injection."514 The Act
requires EPA to promulgate regulations that establish minimum criteria for underground
injection control (UIC) programs, including criteria for ensuring that underground injection
will not endanger underground sources of drinking water.513 Where a state UIC program
meets EPA's minimum requirements, EPA will approve the program, and the state will be
responsible for its administration.516 In such cases, the primary nexus between EPA action
and ESA requirements is the state program approval process. To the extent that any state's
proposed program is determined to be inadequate, EPA will prescribe and implement a UIC
program in that state.517
97
-------
The Act defines endangerment of drinking water sources as the presence of
contaminants in any underground water that supplies or can reasonably be expected to
supply a public water system, if such contamination would result in noncompliance with
national primary drinking water standards.518 EPA is therefore charged with ensuring that
UIC programs protect human health. Nevertheless, it is possible that construction and
operation of an underground injection well may lead to adverse impacts on T&E species
whether or not the injection contaminates an aquifer that is an underground source of
drinking water as defined under the Act. Where EPA has permitting responsibility, the
affirmative act of permitting a particular underground injection well raises the need for ESA
§7 compliance if the injection may affect T&E species.
There are two principal ways in which underground injection might affect T&E
species and their habitats. First, land disturbances associated with drilling the well, or
disturbances resulting from roads and other activities connected to the well, may affect
habitat for T&E species. This may be more of a concern in areas that have not historically
been used for drilling. For example, the drilling of oil and gas wells in the Alaskan tundra
might possibly disturb the habitat of migratory birds. Where the permitting of an injection
well makes it possible to pursue the overall project, such as a new oil and gas production
project, any T&E species impacts associated with the larger project could be seen as
indirectly attributable to the permitting of the injection well.
Second, underground injection may affect T&E species and their habitats if there is
contamination of underground water sources. The water source affected may be home to
an underground ecosystem, or a shallow aquifer that is relied on for surface water may
impact that aquatic ecosystem. The SDWA requires applicants for a permit to demonstrate
that the underground injection will not endanger drinking water sources. Under EPA
regulations, applicants for Class I519 wells must also submit a "no migration petition"
demonstrating that there will be no migration for 10,000 years from the deep saline aquifer
into which they inject the wastes. By designing the permitting process to ensure that an
underground injection project will not contaminate drinking water sources or other potential
habitat of concern EPA can improve its T&E species protection.
EPA's regulations under the SDWA underscore the requirements of ESA §7. The
regulations state that when any federal law, including the ESA, is applicable to the issuance
of a UIC permit, its procedures must be followed. The regulations further state that
when a federal law, such as the ESA, "requires consideration or adoption of particular
permit conditions or requires the denial of a permit, those requirements also must be
followed."321 Therefore, the UIC permitting process established by EPA and the states
should include adequate consideration of T&E species issues. Both federal and state
permitting officials have both the responsibility and the authority under the SDWA to
ensure that any permit issued contains conditions necessary for the protection of. T&E
species and their habitats. Moreover, EPA's definition of the scope of activities to which
the SDWA applies — e.g., by exercising its authority to exempt aquifers that are not
currently sources of drinking water — could lead to adverse impacts on T&E species in a
98
-------
particular case.522 EPA should consider requesting information on potential T&E species
impacts from applicants during the permitting process. Where the proposed activity may
affect T&E species or habitat, the ESA requires EPA to use its authority under the SDWA
to protect the species.
B. Enforcement
To the extent that UIC program requirements serve to prevent environmental
contamination that may adversely affect T&E species, EPA's enforcement of these
provisions can indirectly serve the goals of the ESA. EPA is currently pursuing a national
enforcement strategy aimed at closing Class V shallow wells with potential to contaminate
groundwater, such as those being used to by service stations to dispose of oily wastes. EPA
could establish a priority for enforcing suspected violations of the SDWA that also impact
T&E species or their habitats. EPA could also investigate whether unpermitted wells pose
a threat to T&E species through contamination of underground water sources.
The SDWA authorizes administrative orders (including administrative penalties up
to a maximum of $125,000), as well as civil and criminal actions, to enforce violations of
UIC program requirements.523 Even where states with approved UIC programs have
enforcement primacy, EPA still has certain enforcement responsibilities. If EPA "finds" that
a person is in violation of a provision of the applicable underground injection program, the
agency is to notify the state; if the state does not take appropriate action, EPA is required
to issue an order against the violator or to pursue a civil action.524 Similarly, where a
state does not have enforcement primacy, the SDWA directs EPA to issue an order or
pursue a civil action where the agency finds that a person is in violation of the applicable
UIC program.525 In general, EPA could ensure that penalties assessed and actions
required of violators in enforcement actions by both EPA and the states reflect any harm
to T&E species or their habitats resulting from the violation.
C. Delegation and State Program Approvals
As noted above, states may apply for and obtain EPA's approval to administer UIC
programs. Where a state has responsibility for issuing underground injection permits, EPA
can have an oversight role in promoting consideration of T&E species protection. EPA can
incorporate ESA compliance into the minimum state program requirements. The agency
has attempted to do this by promulgating a regulation requiring that the procedures of any
applicable federal law be followed during the underground injection permitting process.
Although this would seem to mandate compliance with ESA consultation requirements
where necessary, it is questionable whether EPA and state permitting officials are
undertaking thorough determinations of impacts on species and habitat. EPA might issue
guidance to state and local permitting officials on the procedures to follow to ensure that
T&E species impacts are considered. In cases where endangered species concerns are
present, EPA could require that all or part of the responsibility for issuing the permit revert
to EPA. EPA could also consider whether T&E species protection is being adequately
99
-------
addressed when a state program is presented to the agency for review or revision — e.g., if
a state seeks revision of its program to have an aquifer exempted from regulation.
D. Financial Assistance
Under the SDWA, EPA may award grants to states for underground water source
protection programs.526 These programs enable states to implement UIC programs in
conformity with federal regulations. The grant guidance may provide a means for EPA to
ensure that states adequately consider and protect T&E species and their habitats in
underground injection well permitting decisions by state agencies.
E. Monitoring
EPA has general authority to establish monitoring and reporting requirements for
underground injection wells. EPA is specifically required under the SDWA to establish
regulations identifying monitoring methods for Class I wells and to identify the location and
manner in which such monitoring can provide the "earliest possible detection of fluid
migration. . . that may be harmful to human health or the environment."527 This authority
provides EPA with a means of ensuring that permitted wells are functioning as designed and
are not posing threats of contamination to the underground water systems on which T&E
species may rely. EPA also has broad authority under its SDWA regulations to impose
additional requirements for construction, monitoring or corrective action, if monitoring
reveals migration of contaminants into an underground source of drinking water.528 Such
monitoring can also assist the agency in revising its design, construction and siting criteria,
based on data from existing wells, so that T&E species can be protected in the future.
II. GROUNDWATER PROTECTION ACnVITIES
A. Sole Source Aquifer Designation
EPA may determine that an aquifer is the sole or principal source of drinking water
for an area, and that its contamination would create a significant hazard to public
health.529 Such a designation, which can be made on EPA's initiative or upon petition,
must to be published in the Federal Register. Thereafter,
no federal financial assistance . .. may be entered into for any project which
the Administrator determines may contaminate such aquifer through a
recharge zone so as to create a significant hazard to public health.
This prohibition on federal funding, if enforced, could be a tool for protecting aquifers. The
designation is made based on potential threats to public health, and federal projects with
"public health" impacts are affected. Groundwater contamination that affects public health
may also threaten underground and surface water on which T&E species rely. Since the
funding prohibition involves a comprehensive review of the impacts of federal activities on
100
-------
groundwater, EPA has an opportunity to further T&E species protection by utilizing and
enforcing the sole source aquifer designation to prevent groundwater contamination
generally.
B. Critical Aquifer Protection Areas
The SDWA establishes procedures for the development of demonstration projects
in "critical aquifer protection areas," which are located in areas designated as a sole or
principal source aquifer under the Act.530 Applications by state or local governments for
such demonstration projects include a comprehensive management plan designed to
maintain the quality of the groundwater in order to protect human health, the environment
and groundwater resources. The management plans are the heart of the project, and must
identify specific actions to prevent adverse impacts on groundwater quality. EPA may enter
into cooperative agreements with applicants to implement the comprehensive plan, and may
provide funding in the form of grants (with a required 50% match). EPA is given discretion
to approve or disapprove the management plan based in part on whether the demonstration
project is consistent with the stated statutory objective of maintaining "the quality of the
ground water in the critical protection area in a manner reasonably expected to protect
human health, the environment and ground water resources."531 EPA should, therefore,
ensure that management plans provide adequate protection for T&E species, and that
demonstration projects include any measures necessary to protect listed species and their
habitats that may be affected by groundwater quality.
The Act requires EPA to promulgate criteria for identifying critical aquifer protection
areas. Among the statutory factors EPA must consider in establishing these criteria are the
economic, social and environmental costs and benefits that would result from degradation
of the groundwater.532 EPA's regulations currently include "other economic costs and
environmental and social costs resulting from . . . contamination" as one of the criteria in
determining a critical aquifer protection area.533 The agency therefore has an opportunity
to further the goals of the ESA by approving and funding demonstration programs where
the environmental costs of degradation are high — e.g., where groundwater contamination
may adversely impact T&E species or habitat. The agency may also influence the nature
of these programs through guidance on the minimum requirements for management plans,
including provisions for T&E species protection. Ultimately, however, the availability of
funding for the projects is key to the program's effectiveness.
C. Wellhead Protection Areas Program
States are required to submit to EPA a program to protect wellhead534 areas "from
contaminants which may have any adverse effect on the health of persons."535 Among
other things, these programs must identify all wellhead protection areas, and must include
measures to protect the water supply within wellhead protection areas from contaminants.
States with more than 2,500 active annular injection wells (for reinjecting brines associated
with oil and gas production) must also certify that they are implementing and enforcing a
101
-------
program to protect against contaminants associated with such wells that may affect public
health.536 The effects of the wellhead protection program on T&E species and their
habitats are therefore indirect. The SDWA's wellhead provisions are designed to protect
the drinking water supply from contamination. To the extent that particular species rely on
these underground water sources, EPA has an opportunity to enhance T&E species
protection by ensuring effective implementation of the wellhead protection program.
D. Research
Under the SDWA, the EPA is authorized and/or required to undertake research in
a number of areas relating to protection of underground drinking water sources.537 For
example, the Act mandates studies relating to underground injection methods, surface spills
that may degrade underground water sources, and the effect of pesticides and fertilizers on
underground recharge areas. EPA has an affirmative opportunity to promote the goals of
the ESA by conducting research on contamination of underground water that potentially
threatens not only drinking water systems, but also underground and surface aquatic
ecosystems.
III. REGULATION OF PUBLIC WATER SYSTEMS
A. Drinking Water Treatment Techniques
EPA is authorized to mandate water treatment techniques in certain circumstances,
or to approve a variance if an alternative treatment technique is as efficient in lowering the
level of a contaminant.538 EPA is also directed to establish requirements for disinfection
as a treatment technique.539 The setting of standards relating to water treatment could
indirectly raise T&E species issues to the extent that the particular processes required by
EPA create in air, water or other pollution from water treatment facilities that adversely
impacts species or habitat. In developing these standards and mandating treatment
techniques, EPA should take into account any indirect effects of pollution or waste products
on T&E species and their habitats.
B. Construction Grants and Loans
The SDWA authorizes EPA to make grants to any person or public agency for the
development (including construction) of a project that will (1) demonstrate new or improved
methods of providing a dependable, safe drinking water supply or (2) investigate and
demonstrate health implications of reclamation, recycling and reuse of drinking water.540
EPA is also authorized to guarantee private loans to small public water systems. EPA's
grantmaking and loan guarantee activities may raise concern about T&E species if, e.g., the
construction or operation of projects being funded involve destruction of or disturbance to
critical habitat.
102
-------
THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
The Emergency Planning and Community Right-to-Know Act (EPCRA or the Act)
establishes emergency planning, response and reporting requirements for facilities that use,
manufacture or process toxic chemicals. EPA's activities under EPCRA consist primarily
of establishing guidelines for reporting and enforcing the reporting requirements. EPA's
actions under the Act are therefore not likely to result directly in adverse impacts to T&E
species. However, because EPCRA promotes pollution control and pollution prevention,
EPA's actions under the Act can indirectly protect and conserve T&E species and their
habitats.
EPCRA establishes two categories of reporting requirements: Chemical release
reporting and emergency planning reporting.
I. CHEMICAL RELEASE REPORTING (TOXIC RELEASE INVENTORY)
EPCRA's §313 chemical release reporting provisions are indirectly related to ESA
requirements because the availability of data on toxic releases helps citizens and government
agencies to identify particular environmental hazards as well as enforce existing pollution
control laws. The data reporting may also promote pollution prevention efforts among
industries who are now required to make public their chemical releases. Thus, EPA's
implementation of the toxic release inventory requirements indirectly influences the
pollution releases of certain industries and presents an indirect opportunity for EPA to
protect T&E species and their habitats. The following are some examples of EPA's
responsibilities under EPCRA §313 that can lead to better compliance with pollution control
laws, can promote pollution prevention, and thereby protect T&E species.
A. Designation of Facilities Subject to TRI Reporting
The EPA has authority to determine what types of facilities are subject to the
reporting requirements of the Act.541 The Act provides that Standard Industrial
Classification (SIC) codes 20-39 (manufacturing facilities) are covered; EPA may add or
delete SIC codes to this list. Thus, EPA has an opportunity to require that additional
facilities (e.g., federal facilities, mines, power plants) be subject to reporting, thereby
expanding the Act's potential for improving pollution control and prevention. This
improvement can indirectly enhance T&E species and habitat protection. Conversely, the
EPA could be indirectly hampering efforts to protect T&E species by failing to expand the
list of SIC codes that are covered by the reporting requirements.
Similarly, the Act authorizes EPA to designate particular facilities as subject to TRI
reporting requirements.542 EPA may so designate a facility based on factors listed in the
Act, including "such other factors as the Administrator deems appropriate." This provides
EPA the opportunity to designate as subject to TRI reporting requirements any facility
which may potentially harm T&E species or their habitats, or which is located near an area
where listed species exist.
103
-------
B. Designation of Chemicals Subject to TRI Reporting
EPCRA §313 incorporates a list of chemicals subject to the release reporting
requirements, but authorizes EPA (by rule) to add or delete chemicals based on certain
criteria specified in the Act.543 EPA may take such action on its own, or in response to
a petition from any person or from a state governor. Most relevant to ESA is the provision
that EPA may add a chemical if it is "known to cause or can reasonably be anticipated to
cause ... a significant adverse effect on the environment of sufficient seriousness .. .',544
EPA thus has the opportunity to further the goals of the ESA by adding to the EPCRA
reporting requirements any chemical that has been shown to have significant adverse effects
on T&E species. Conversely, the agency could potentially diminish efforts to protect T&E
species and their habitats if it decides to delist a chemical whose use adversely affected
T&E species.
C. Miscellaneous
The following EPA actions might indirectly promote the goals of the ESA because
they relate to effective implementation of the TRI reporting requirements generally.
• Thresholds for Reporting. EPCRA sets out the threshold amounts for
reporting chemical releases, but provides that EPA may revise those
thresholds. EPA's changes in the thresholds can strengthen or weaken the
TRI database.545
• Form R. The way in which the agency designs the reporting form (e.g., with
respect to pollution prevention reporting requirements) can enhance or
diminish the utility of Form R.546
• EPA Management of Data. EPA is charged with making the TRI data
available to the public, both through online access, and through the
publication of TRI reports. The extent to which EPA makes TRI information
accessible is critical to the effectiveness of the Right-to-Know law in
promoting pollution control and pollution prevention.54
• Enforcement The way in which EPA utilizes its enforcement authority is also
vital to ensuring compliance with the Act's requirements.548
If EPA chooses to implement these activities with a view towards maximizing the
control and prevention of pollution, all of these actions could indirectly benefit T&E species
and their habitats.
104
-------
II. EMERGENCY PLANNING REPORTING
In addition to requiring facilities to report releases of specified toxic chemicals,
EPCRA §311 and §312 require that industry report certain information on chemicals in
order to facilitate local emergency planning efforts. Facilities must report non-routine
chemical releases, make Material Safety Data Sheets (MSDSs) available to the public, and
provide an inventory of toxic chemicals stored at the plant. EPCRA §303 also requires that
local jurisdictions develop chemical emergency response plans.
The extent to which these requirement are effectively implemented by EPA and the
localities could affect protection of T&E species because species and/or their habitats might
be harmed by a particular chemical accident. The relevance of the emergency planning
provisions of EPCRA to the ESA is somewhat attenuated, however, in light of the fact that
the states, rather than EPA, have primary responsibility for implementing these provisions.
A. Emergency Planning Thresholds
The principal EPA action authorized by EPCRA's emergency planning provisions is
the establishment of thresholds which trigger the emergency planning requirements. For
example, EPA may establish thresholds for hazardous chemicals below which facilities are
not subject to MSDS or chemical inventory requirements.549 In establishing these
thresholds, EPA should ensure that they adequately reflect the potential impacts of chemical
accidents on T&E species and their habitats, thereby improving accident prevention and
indirectly protecting T&E species.
B. Training and Technical Assistance
EPCRA also provides EPA with an opportunity to strengthen local capacity to
respond to a chemical emergency and authorizes the agency to focus existing emergency
training programs on hazardous chemicals.550 EPA can include protection of T&E
species and their habitats in its emergency response training and assistance to states and
localities.
105
-------
THE POLLUTION PREVENTION ACT OF 1990
Like EPCRA, the Pollution Prevention Act (PPA or Act) is relevant to T&E species
protection more for the opportunity it provides EPA to further the broad goals of the ESA,
than for the actions it authorizes EPA to take that might adversely impact T&E species or
habitat. The Act establishes a national policy setting forth a pollution prevention
"hierarchy:" Where feasible, pollution should be reduced at its source; failing that,
pollution should be recycled or treated rather than disposed or otherwise released.
The Act authorizes EPA to take a variety of actions to promote source reduction.
The following Eire the main EPA activities required or authorized by the PPA:
• Source reduction strategy. EPA is required to develop a source reduction
strategy that incorporates a number of elements specified in the Act, including
consideration of the effect of existing and proposed EPA programs or
regulations on source reduction efforts, and establishment of a training
program on source reduction opportunities.352
• Source reduction clearinghouse. EPA is charged with establishing information
on technical and operational aspects of source reduction. The clearinghouse
serves as a means of accomplishing technology transfer and education on
source reduction.553
• Expanded TRI requirements. The Act requires new information on source
reduction and recycling associated with chemical releases reported under
EPCRA §313 (TRI). EPA is required to revise the TRI reporting form to
best accommodate and reflect these new data requirements.
• New EPA office. EPA is required to set up a pollution prevention office to
implement the Act, with authority to review and advise other media-specific
offices within EPA and to promote a multi-media approach to source
reduction.555
• Technical assistance grants to states. EPA is required to make grants to
states for promoting the use of source reduction techniques by industry.556
The way in which EPA exercises these PPA authorities has an indirect effect on T&E
species and habitat, which will benefit from pollution prevention efforts generally. The
agency could also target its source reduction activities on chemical pollutants that have been
demonstrated to adversely impact T&E species and their habitats.
106
-------
CHAPTER TEN
ESA PROGRAMS IN OTHER FEDERAL AGENCIES
Agencies with similar problems and challenges can often serve as models for one
another. This chapter considers how two other federal agencies — the U.S. Forest Service
(USFS) and the Office of Surface Mining Reclamation and Enforcement (OSM) — have
addressed some of the challenges of implementing the ESA which EPA also faces.
However, neither of these agencies is a perfect role model for EPA or similar state pollution
control agencies. EPA's administrative niche is unique. EPA's mission is environmental,
yet its focus is more often setting general standards and rules for pollution control rather
than site-specific decisions that historically have led to the most contentious issues of ESA
compliance for other agencies. Also, no agency is a perfect role model because no agency
is doing a perfect job of implementing the ESA. Nonetheless, both these agencies offer
lessons that EPA or state pollution control agencies could apply in developing improved
strategies for ESA compliance.
I. THE U.S. FOREST SERVICE
A. Past Problems
The Forest Service's problems with protection of species such as the northern spotted
owl, the marbled murrelet, or the red-cockaded woodpecker have caught the ongoing
attention of the national media, not to mention the Congress and the President. These
problems are partially rooted in a Forest Service statutory directive under the National
Forest Management Act (NFMA) that in some circumstances is even more protective than
the ESA.557 Still, the Forest Service's experience and approach to identifying and
resolving these endangered species problems offers some guidance to other federal agencies
on how to handle ESA issues generally.
How did an agency with a strong conservation mission, like the USFS, end up in the
middle of endangered species controversies? Some say the Forest Service was so
accustomed to balancing conflicting demands under its statutory directive for "multiple
use"558 that it failed to recognize that species protection under the ESA is not readily
subject to balancing. Others say that the agency overemphasized the conflicting uses that
helped increase agency funding, either directly (as with receipts from timber sales) or
indirectly (as with congressional appropriations for commodity production or road building).
Some say the Forest Service simply presumed that following its long tradition of
conservation would always be enough to steer it to the proper environmental decision,
regardless of the specific mandates of the laws. Others say that the Forest Service relied
too much on the "alarm clock" nature of species listing under the ESA. Instead, if the
Forest Service had been more proactive in identifying potential problem species and
managing for their benefit, it could have avoided some of the recent listings and the
controversies created by those listings.
107
-------
For EPA, the strongest lessons may come from the last two possibilities. EPA has
a strong environmental mission, or actually, many strong environmental missions. EPA has
already occasionally discovered that vigorous pursuit of one mission may conflict with
another; for example, the possible listing of used oil as a hazardous waste raised the
prospect of increased illegal dumping of used oil into sewers and surface waters. Similarly,
in implementing its pollution control statutes, EPA needs to give consideration to ESA goals
and not assume that activities furthering the goals of pollution control will necessarily be the
best choice for protecting T&E species and their habitats.
Also, EPA seldom seems to use its discretionary authorities to benefit T&E species.
EPA might consider whether a proactive program for species protection now could head off
future listings and conflicts over T&E species.
B. Current Policies
The Forest Service has worked hard in recent years to improve its compliance with
the ESA and its protection of biodiversity. It has established internal procedures and
allocated responsibility and resources to integrate compliance into all of its programs, from
research to land management.
1. Assigning responsibility for compliance
The Forest Service has delineated who is responsible for ESA compliance in the
Forest Service Manual (FSM). Responsibility rests with the line officials, from the district
rangers up to the agency chief.559 In other words, the people authorized to take action
bear clear responsibility for ESA compliance. Lower level officials are responsible for
identifying actions that may trigger ESA requirements. If an action requires formal
consultation with FWS or NMFS, it must be elevated to the Regional Forester,560 a
position roughly analogous to an EPA Regional Administrator. Though this elevation may
subtly discourage findings that require consultations, it assures high-level attention to actions
with potentially significant environmental impacts. Forest Supervisors, one step below the
Regional Foresters, may initiate informal consultations with the listing agencies.561
EPA does not have a detailed official internal policy document comparable to the
FSM. However, EPA could issue a high-level memorandum or other guidance to assign
responsibility for ESA compliance among EPA headquarters staffs. Such guidance could
even take the form of regulations along the lines of EPA's regulations implementing NEPA
and could thereby ensure that EPA decisionmakers at the highest levels are responsible for
achieving ESA compliance.
108
-------
2. Assuring national uniformity and coordination
To promote uniform implementation, the Forest Service also provides agency-wide
ESA compliance guidance and technical support for ESA-related decisions. General ESA
policies and programs are recommended by the Director of Wildlife and Fisheries in the
Washington D.C. office.562 The Forest Service's national Threatened, Endangered, and
Sensitive Species Program is part of that division.563
The national and regional Threatened, Endangered, and Sensitive Species Programs
in each of the USFS regions also provide some oversight of lower level efforts at
compliance. With many actors involved in compliance, this is a difficult task. The national
office, with only two staff members, is hard-pressed to be an effective overseer. Observers
outside the agency report some inconsistency in the degree of compliance from district to
district. There may even be variation in decisions taken by a single district, forest, or
regional office depending on the degree of conflict between ESA directives and the more
traditional agency missions.
Some ESA issues cross the Forest Service's lines of geographic organization and
require coordination at regional or national levels or require coordination with other
agencies. The national Director of Wildlife and Fisheries coordinates issues spanning Forest
Service regions.564 Regional Foresters and Forest Supervisors are responsible for
coordination within their units.565 All of these officials have a responsibility to help
coordinate actions with outside agencies. As a practical matter, the Forest Service's legal
counsel, in the Department of Agriculture's Office of General Counsel, plays a role in
keeping compliance efforts uniform throughout the USFS by giving agency personnel
feedback on the legality of proposed actions.
3. Assessing the impact of USFS actions on listed species
Being able to evaluate the impact of a proposed action on listed species is at the core
of agency compliance with §7(a)(2) of the ESA, To accomplish this task, the Forest Service
has spelled out a "biological evaluation" process in its internal regulations,566 which agency
personnel are required to follow if there is any question of potential impacts on T&E
species.
Such a careful, cookbook approach to evaluations offers both advantages and
potential pitfalls. An evaluation procedure that creates a clear decisionmaking record with
solid scientific documentation helps the USFS avoid poor decisions, litigation, and delays.
However, it must take care that its procedures, standards, and use of terminology square
with the requirements of the ESA and the listing agencies. The problem is particularly
complex in the Forest Service's case, where the evaluations are intended to promote
compliance with the agency's own statutory mandates as well as with the ESA.
109
-------
4. Securing adequate expertise
Some federal agencies lack adequate expertise or resources to identify actions that
might raise ESA concerns or to prepare the sort of biological assessment required by ESA
§7(c) when listed or proposed species may be adversely affected by a proposed action. The
Forest Service is fortunate that its general duties of wildlife and vegetation management
require it to employ wildlife biologists and botanists qualified to make such assessments.
Realizing the importance of ESA issues, the Forest Service calls for biological evaluations
to be performed or reviewed by "journey or higher level biologists or botanists."567 Each
Forest Supervisor is responsible for ensuring that expert staff are available to assure that
evaluations are adequate.568 Each evaluation must make an affirmative finding of "no
effect," "beneficial effect," or "may effect" and support that finding with scientific
evidence.569
Even with a large scientific staff and a regulatory commitment to use it, an agency
may find its human resources limited by other constraints. The Forest Service built its
scientific staff originally to handle non-ESA matters, and adding to their duties has
sometimes stretched the staffs resources. As a result, the "squeaky wheels" — problem areas
drawing local or national attention — often get the most attention, while other areas,
including proactive projects that could help avoid future ESA problems, are sometimes
understaffed.
The challenge for EPA to secure adequate scientific expertise is significant. Although
EPA employs many talented scientists, most are occupied with tasks unrelated to ESA
compliance. Further, the staff with the expertise to spot or analyze potential ESA issues
may not be the ones working day-to-day with the personnel responsible for planning or
taking actions. For full compliance, all personnel need ready access to the appropriate
scientific expertise needed to analyze ESA concerns.
5. Educating staff about ESA responsibilities
Besides having qualified experts at hand, an agency must ensure that every scientist
or decisionmaker has sufficient familiarity with ESA requirements to recognize a potential
ESA issue. Even with a handbook or manual, agency personnel may feel confusion over
ESA requirements. The Forest Service has approached this problem by creating workshops
and training sessions. Beginning in the mid-1980s, regional offices have run workshops to
explain the requirements of biological evaluations to field scientists. In 1990, the Forest
Service contracted with an outside organization to develop a. national training course on
ESA compliance for biologists and botanists. Training for USFS scientists ensures that
biological evaluations will be properly documented.
Agency officers with decisionmaking authority also need to have a full understanding
of ESA requirements. The Forest Service has sometimes found itself in trouble when
decisionmakers have proceeded with actions despite data or opinions from their staff
biologists raising ESA concerns. Agency counsel have had to warn decisionmakers to obtain
110
-------
scientific support for their actions. In the winter of 1992, the Forest Service held its first
line officers' ESA training session. Other training courses will be developed by USFS as
problems and needs emerge.
The challenge for EPA is to educate all agency personnel to be able to identify
potential ESA concerns and understand the agency's ESA obligations. In conversations with
EPA personnel while preparing this report, the authors occasionally encountered EPA staff
who had never considered how ESA might affect agency actions or who misunderstood the
agency's obligations under ESA
6. Budgeting
The Forest Service has learned that educating staff and assuring adequate expertise
is closely tied to budgeting for ESA-related tasks. The agency tries to ensure that its budget
reflects the costs of ESA compliance, in terms of staffing and training.
Beyond direct congressional appropriations for ESA compliance, the Forest Service
has sought ways to supplement or stretch funding of programs and research projects.
Although the Forest Service includes ESA concerns in forest plans, low funding has
sometimes limited or slowed plan implementation. Lack of funds has also affected proactive
management proposals and the hiring of additional biologists and botanists for ESA-related
studies. The Forest Service has tried to compensate through partnerships with local and
federal public service organizations. Through its challenge cost-share program, the Forest
Service conducts proactive work, such as collaborative research, with conservation groups.
When its own staff biologists and botanists are tied up with other tasks, work with non-
agency groups helps the USFS achieve ESA goals.
Outside organizations such as the National Wildlife and Fisheries Foundation provide
additional resources the Forest Service. The National Wildlife and Fisheries Foundation
gives grants for research and recovery projects. These grants are available to state and
federal government agencies as well as public service organizations. EPA would also be
eligible for grants related to fish and wildlife protection.
7. Management and recovery of listed species
The Forest Service's duties often include management of lands declared to be critical
habitat for listed species. These responsibilities have encouraged the Forest Service to offer
expertise and assistance to the FWS and NMFS in critical habitat designation and recovery
plan design. The Forest Service Manual gives authority to the Director of Wildlife and
Fisheries and the Regional Foresters to choose agency participants in recovery efforts. For
plans affecting more than one region, the Director of Wildlife and Fisheries nominates
individuals to participate in recovery teams.570 Regional Foresters coordinate recovery
teams within their own regions.571 The manual also provides guidelines for the review of
recovery plans.572
Ill
-------
Though EPA will seldom if ever find itself managing critical habitat directly, it may
find its regulatory actions closely tied to species recovery. For example, a listed predator's
recovery could be affected by EPA-regulated pesticides. Participation with the FWS and
NMFS in recovery planning is a proactive option available to EPA in these situations.
8. Managing agency contracts
The ESA covers all federal actions, including those undertaken through contracts with
non-agency organizations. Forest Service contracts include a standard clause allowing the
agency to modify or nullify the contract unilaterally if T&E species may be affected. The
contractor receives compensation for related losses.573
EPA probably does not enter into contracts with the potential to affect T&E species
as frequently as the Forest Service. Nonetheless, the occasional EPA grant, research, or
demonstration contract may raise the possibility of affecting T&E species and should carry
a clause reserving EPA's power to modify the project if it could affect a listed species or its
habitat.
9. Cooperating with state authorities
The consultation and policy directives of the ESA apply to actions by federal
agencies, but often federal agencies defer to their state counterparts in an area affecting
T&E species. The Forest Service and state fish and wildlife agencies often interact in the
same jurisdictions, and the Forest Service defers to states on some aspects of wildlife
management. ELI finds that the Forest Service's procedures for taking action when ESA
issues arise in this context are weak. The Forest Service never formally delegates authority
to the states and has no guidelines for reviewing state actions or reasserting federal
authority. When T&E species may be at risk, agencies ought to have clear channels through
which federal agency can affect state management.
For EPA, federal-state ESA issues will most often arise in the context of delegation
of programs to states, supervision of delegated programs, and federal enforcement in
delegated states. This chapter takes a closer look at those situations in the section
discussing the Office of Surface Mining's programs.
10. Promoting communication on ESA issues
One hallmark of successful compliance with ESA appears to be good communication
inside and outside the agency with persons with expertise and interest in ESA issues. Such
exchanges lead to early identification of ESA-related issues, more creativity in seeking
solutions, greater consistency in approach across agency regions, and more goodwill among
concerned parties. The Forest Service pursues a policy of active communication and
cooperation in its ESA compliance. ESA provisions in the Forest Service Manual encourage
cooperation among agency divisions, federal and state agencies (including informal contact
with the listing agencies), and interested organizations. 4
112
-------
The Forest Service has found that, in practice, good communication depends on the
personality and attitudes of agency personnel. Depending on the level of commitment to
the ESA, a USFS region or district will have better knowledge of contact people within the
FWS or NMFS and of resources available for compliance.
Forest Service staff recognize a particular need for, and are actively working to
improve communication on ESA issues among the regional offices of the Forest Service and
also among its regional counsel. By alleviating information gaps within the agency,
communication helps develop more consistent ESA implementation. Better information-
sharing between Forest Service divisions and all USFS Threatened, Endangered, and
Sensitive Species programs is being pursued by both the regions and headquarters. Good
communication and good attitudes are sometimes difficult to cultivate in an agency. They
are a part of agency culture that cannot easily be mandated. But, as the Forest Service is
demonstrating, high-level encouragement and commitment to these goals can ultimately
make a difference.
11. Defining the agency mission
Another issue of "agency culture" that goes to the heart of ESA compliance is
defining the agency mission. Where agencies do not define their goals in terms of
biodiversity or habitat protection, there is often resistance to ESA implementation. The
Forest Service traditionally defined its mission in terms of "multiple use."575 Although
maintaining ecosystem diversity and recovering listed species have emerged as stated Forest
Service objectives, traditional USFS practices do not automatically support those goals.575
Production of economically valuable resources — like timber or grazing for livestock — has
sometimes taken priority over less remunerative uses of Forest Service lands. Individuals
within the Forest Service have been rewarded for meeting commodity-based goals.
Congressional pressures and funding from timber sales have promoted a focus on commodity
production.
Despite having goals separate from the specific ones of the ESA, an agency may be
able to modify its approach to management or regulation to accommodate the statute. The
Forest Service has made a strong effort to be responsive to the ESA. There has been
movement towards redefining resource development within the agency. The Forest Service
has an ecosystem management program which was designed to facilitate a transition from
timber production and mitigation to whole ecosystem management. Outside researchers are
currently trying to develop "vital signs" for the USFS to monitor ecosystem health.577
Ecosystem health would be reflected in numbers of T&E species, socioeconomic variables,
water and air quality, and other factors. It is unclear how successful this transition by the
Forest Service will be; however, many USFS staff are positive about the efforts and
resources allocated to furthering this policy. Previously, USFS line officers underwent
performance reviews which focused mainly on resource extraction. New agency policies will
now shift the focus away from commodity management, and evaluations will be based more
on ecosystem health.
113
-------
EPA has an agency culture that has focused first on direct protection of human
health. The agency is coming to realize more and more the intimate link between
ecosystem health and human health. Embracing ESA goals should be a natural step for
EPA, just as it should be for the Forest Service. But the Forest Service experience suggests
that any change in agency focus requires commitment of staff, resources and time.
II. THE OFFICE OF SURFACE MINING
The Office of Surface Mining (OSM) offers an illustration of ESA implementation
in a regulatory setting. OSM has authority to regulate coal mining on both federal lands
and private lands. Like the EPA, OSM implements much of its regulatory program through
delegations of authority to states, and its regulations for including ESA concerns in state
programs are particularly noteworthy. All the major coal mining states, with the exception
of Tennessee, have OSM-delegated state mining control programs.
A Delegation
Delegation of authority from federal agencies to states raises some unresolved legal
issues under the ESA. Consultation and conference requirements of the ESA only apply
to actions of federal agencies.578 When a federal agency delegates authority to a state,
is that action subject to ESA §7(a)(2) consultation requirements? Is a state, acting pursuant
to federal delegation, a federal agency? And if a federal agency is overseeing delegated
state actions or inactions that may adversely affect T&E species, must the federal agency
seek ESA consultation?
1. Approving state programs
The first question, regarding the act of delegation itself, is the subject of a pending
lawsuit involving EPA.579 OSM regulations require the Secretary of the Interior to solicit
and disclose the views of "the heads of . . . Federal agencies concerned with or having
special expertise relevant to the program as proposed" before approving a state
delegation.580 The same regulation explicitly requires the Secretary to solicit views from
EPA and the Department of Agriculture. Though it does not explicitly call for views from
the FWS and NMFS, it would seem to reinforce any obligation that the Secretary might
have under ESA §7(a)(2) to consult with the listing agencies.
2. Applying ESA requirements to states
The second question, whether delegated states are bound by §7(a)(2) consultation
requirements as "federal agencies," has apparently not been answered by the courts. If the
courts interpret the definition of federal agency in ESA in a fashion similar to that in the
National Environmental Policy Act (NEPA), then state actions pursuant to delegation
probably are not subject to §7(a)(2).581
114
-------
Even if a state program is beyond the direct reach of ESA §7(a)(2) requirements, the
delegating agency can require the state program to recognize the need to protect T&E
species and to follow consultation procedures parallel to those binding federal agencies.
OSM regulations for state programs require states to submit documentation of proposed
systems for protecting T&E species by consulting with state and federal fish and wildlife
managers.
As the other chapters in this report discuss, most of EPA's regulations do not require
state programs to contain consultation provisions to protect T&E species and their habitats
as a condition of EPA approval. Only the RCRA guidelines for state solid waste programs
expressly call for coordination with federal listing agencies.583 By incorporating
consultation requirements into ail of its delegated state programs, EPA would help advance
the goals of the ESA.
3. Overseeing compliance in delegated states
The third question, whether an agency's oversight of a delegated program may raise
ESA issues, is somewhat more complex. Without pretending to offer a definitive legal
opinion, ELI finds that an agency's failure to police a state program (as opposed to an active
decision not to take action in or against the state) is likely not an "action" subject to
consultation requirements. However, oversight of state programs does offer federal agencies
opportunities to exercise discretion on behalf of T&E species.
Within OSM, state field operation offices are responsible for reviewing compliance
of state permitting programs with the federal standards. Western and Eastern Support
Centers provide qualified science staff to scrutinize the soundness of state permits. Some
observers have noted that OSM's oversight of states on ESA issues has been uneven within
the agency. In part, this may be due to the scarcity of ESA expertise within the agency.
Unlike the Forest Service, OSM does not have an extensive staff trained in biology. The
Western Support Center in Colorado has a wildlife biologist, three ecologists, and two soil
scientists. The Eastern Support Center, on the other hand, has more geologists, hydrologists,
and engineers. The Western Center is better staffed to deal with OSM's ESA-related
issues.384 Also, the nature of western mining invites closer scrutiny. Often the federal
government owns the land or the coal. There are fewer mines to oversee, and on average
they are larger than mines in the east. Larger operations can more easily afford scientific
studies to facilitate T&E species management.
Beyond these regional differences, observers report differences from state to state on
the attention paid by OSM to ESA issues. This variation seems to depend on the
proclivities of the OSM field office. Some maintain better contacts with state and federal
wildlife agencies and use informal consultation more freely to keep on top of ESA issues.
115
-------
Unlike the Forest Service, OSM has had no high-profile ESA cases to spur it to
better oversight of state programs or compliance. Perhaps as a result, although OSM keeps
in technical compliance with the ESA, it does not take a very proactive approach to T&E
species protection. Environmental issues are reviewed by OSM in the state programs on a
scheduled basis, yet OSM does not automatically scrutinize state permits for ESA
compliance unless the agency has been alerted to potential ESA problems.
For federal oversight to be effective, an agency needs to draw from its regulatory
power to "enforce" ESA implementation- Like the EPA, OSM can assert leverage over state
programs through increasing or threatening to increase federal activity in a state. If a state
program is negligent in following federal agency standards, OSM can take back the program
or part of a program. OSM can also directly take action against a mine operator in a state
program after following appropriate agency notification procedures. Due to funding
limitations in OSM, this kind of action occurs rarely. Instead, OSM is likely to require the
state to amend or redefine weak spots in its program.
Funding provides OSM another means of influencing ESA compliance in reluctant
states. State mining programs often rely on OSM for grants to run the day-to-day activities.
OSM threats or actions to withhold funds are limited by political pressures not to decrease
the extraction of coal.
B. Incorporating ESA Requirements in Regulatory Standards
OSM has integrated ESA duties into its regulations that govern mining permit
applications, whether submitted to the federal government or to delegated states. For either
surface mining or underground mining, an applicant for a permit must provide
environmental information. The state or federal agency administering the permit program,
in consultation with state and federal wildlife agencies, determines the type of fish and
wildlife information that a mining application needs to include.585 If T&E species are
likely to exist in a proposed mining area, site-specific information will be required beyond
preliminary resource surveys.586 The OSM regulations also require state and federal
permit applicants to prepare "protection and enhancement" plans that explain how they will
minimize disturbance to wildlife and comply with the ESA.587
OSM has also incorporated ESA compliance into its regulatory performance
standards for coal exploration and for surface and underground mining. These standards
too must be reflected in state programs.588 During coal exploration, critical habitats of
listed species and other habitats of high value cannot be disturbed.589 The regulations
refer directly to the ESA in their mandate against disruptive coai exploration.590 An
underground or surface mine operator must use the "best technology currently available" to
minimize environmental harm and cannot injure T&E species and critical habitats.591 If
an operator becomes aware of T&E species in the mining area, the operator must report
to the state or federal regulatory authority. The state and federal regulatory authority is
required to engage in consultation or conference if a mining plan or activity may adversely
affect T&E species.592
116
-------
The Surface Mining Control and Reclamation Act (SMCRA) requires delegated
slates to adopt procedures for designating lands unsuitable for surface coal mining.593 For
non-delegated states, OSM administers such procedures. OSM "unsuitabiiity" provisions
allow individuals to petition to have an area designated as unsuitable for mining if those
lands are "fragile."594 OSM has defined fragile lands include lands with critical habitats
for T&E species.*95
In general, OSM has incorporated ESA issues into its regulations more consistently
than EPA has done. The other chapters in this report discuss several of EPA's pollution
control programs and point out opportunities for EPA to deal with ESA issues in its
regulations and pollution control standards.
C. Non-Regulatory Issues
OSM faces some of the same non-regulatory issues as the Forest Service. These
include acquiring the expertise to address ESA issues, building working relationships with
other agencies with ESA interests, and reconciling ESA goals with the agency's mission.
As suggested above in the discussion of state oversight, the quality of its ESA
compliance depends on the quality of OSM's staff. Where expert staff are available, OSM's
attention to ESA issues is improved.
Development of a working relationship with the FWS and NMFS and other federal
agencies facilitates better ESA compliance. Interagency communication allows for swift
transfers of information and encourages informal consultation early in an agency action.
OSM worked with FWS on a water depletion problem in the west which led to a
memorandum of understanding (MOU) in 1983. Although that MOU needs to be updated
and revised, the general principles underlying the document remain applicable. The MOU
sets the tone for ESA compliance in OSM because there are no internal manuals that spell
out biological evaluation standards. It stresses the sharing of resources and a cooperative
relationship between OSM and FWS.
OSM, like the Forest Service, has had to reconcile the goals of ESA with the agency's
original mission. Like the Forest Service, OSM is involved in environmentally sound
commodity production. Unlike USFS, the agency does not directly own or manage the
resource, though. It acts as a regulator rather than as an owner, and it gets no direct
monetary reward for the mining of coal. Perhaps that explains why it seems to have
integrated endangered species concerns with less difficulty than the Forest Service. Perhaps,
though, OSM has simply never faced problems as difficult or as high-profile as the ones
facing the Forest Service. In either case, EPA's situation, as an independent regulator
facing few highly polarized ESA issues, seems closer to OSM than to the Forest Service.
Consequently, with a real commitment at the highest levels and within its staff, EPA should
have relatively little trouble integrating ESA concerns with its traditional mission of
pollution control. Because EPA's reach is so much broader than OSMs, EPA's commitment
to ESA could produce even greater protection for T&E species and their habitats.
117
-------
General Observations on These and Other Agencies
An informal survey of some participants in ESA programs in other federal agencies
yielded some common observations, which echo the findings described above. Agencies
have been inconsistent in their commitment to ESA goals. Even within a single agency,
commitment may vary from program to program, within programs from region to region or
office to office, and within offices from project to project. In general, the following factors
seem to be key indicators of ESA implementation success or failure:
• Knowledge of the ESA mandates and procedures. The personnel responsible
for taking actions must be able to recognize when ESA mandates are
triggered and know what to do next.
• Acceptance that protection of T&E species is part of every agency's mission,
and that sometimes it will conflict with and even override an agency's historic
mission.
• Frequent, effective liaison with the FWS and NMFS, including willingness to
make informal contacts well before project plans or decisions are finalized.
• Acceptance that the responsibility to conserve species may dictate taking
discretionary actions today to head off undesirable mandatory actions
tomorrow. Agencies willing to go beyond the minimum mandates of the ESA
may help avoid the acute conflicts that often follow species listings. Adequate
management plans by federal agencies might have reduced or avoided the
current conflicts involving salmon, northern and Mexican spotted owls, and
other recently listed species.
• Employment of staff with appropriate expertise to implement the ESA,
especially expertise to prepare credible and thorough biological assessments
when required by §7(a)(2).
• Commitment of sufficient monetary and personnel resources to implement the
Act. An agency's budget request should reflect ESA implementation needs,
just as it usually reflects the costs of compliance with NEPA or EPA pollution
regulations.
• Incorporation of ESA requirements into contracts, permits, and delegated or
supervised state programs. Good compliance by contractors, permittees, and
states helps to avoid entangling the federal agency in ESA conflicts.
Observers also noted that specific events influenced the above factors and could
sometimes be used as predictors of future agency compliance. For example, if an office or
a program hired a former employee of the FWS or NMFS, that new staffer often increased
118
-------
agency awareness of the listing program and improved ESA compliance. Being on the
losing end of an ESA lawsuit often raised agency awareness of ESA requirements and
mobilized resources, leading to better compliance not only for the program that was the
subject of the suit but for other programs managed by the same office. By contrast, fear of
short-term program disruptions or single-minded devotion to historic missions by agency
officials has frequently been associated with poor ESA compliance.
Each federal agency bears the burden of initiating actions to comply with ESA or
further its goals. In that sense, ESA resembles NEPA. Some of the general strategies used
by federal agencies to ensure NEPA compliance might be helpful also with ESA compliance.
These include clear internal regulations or guidelines on compliance; clear internal line
responsibilities for compliance; a formal mechanism for determining that no further action
is necessary for compliance; central offices or officers within the agency to provide scientific
expertise and support; supportive and knowledgeable agency counsel; senior management
understanding of obligations and willingness to commit necessary resources; and effective
liaison with the overseeing agencies (CEQ and EPA for NEPA, FWS and NMFS for ESA).
119
-------
CHAPTER ELEVEN
ENDANGERED SPECIES PROTECTION BY
CALIFORNIA POLLUTION CONTROL AGENCIES
I. INTRODUCTION
The earlier chapters of this report have focused on T&E species protection activities
by the U.S. EPA. In addition to EPA's ability to protect T&E species through its pollution
control programs, the states have authorities and programs that potentially can be used for
species protection. This chapter examines how one state, California, uses its pollution
control authorities to protect T&E species and their habitats. Rather than provide an
exhaustive evaluation of California's many pollution control agencies and programs, the
following sections describe some of the state pollution control programs that correspond to
the federal authorities discussed in previous chapters.
In recent years, California agencies have undertaken highly publicized efforts to
protect federally listed species such as the gnatcatcher and the delta smelt. The state has
also recently embarked on a broad ecosystem initiative, the Natural Community
Conservation Planning program, which aims to ensure that economic development is
consistent with protection of biodiversity.
Even beyond these large scale activities, endangered species protection has received
considerable attention in California. Many areas of the state are home to one or more
species protected under federal or state law. This chapter focuses on some of the ways that
California state pollution control agencies comply with state requirements for endangered
species protection, and the opportunities available to those agencies for integrating species
and habitat protection into their regular programs and functions.
Most of California's several environmental departments and boards fall within one
of two "umbrella" agencies, the California Environmental Protection Agency (Cal-EPA) and
the Resources Agency. Nearly all of the pollution-related agencies are under Cal-EPA.
Within these individual departments and boards, California's pollution control programs are
further decentralized. The state agencies responsible for overseeing air and water quality
issues, for example, oversee several regional offices that have considerable responsibilities.
The Department of Fish and Game is located within the Resources Agency and is
California's principal agency for endangered species protection. In addition to implementing
the California Endangered Species Act, it has promulgated regulations that apply generally
to the preparation of environmental impact review documents under California law.
120
-------
II.
CALIFORNIA'S REQUIREMENTS FOR PROTECTING T&E SPECIES
A. The California Endangered Species Act
The California Endangered Species Act (CESA)596, which provides for the listing
of threatened and endangered (T&E) species by the California Department of Fish and
Game (DFG), is similar in some ways to the federal ESA. CESA prohibits the taking of
any species that the state has determined to be threatened or endangered.597 It also
establishes the policy that state agencies shall "seek to conserve endangered species and
threatened species and shall utilize their authority in furtherance of the purposes of this
chapter."598 Like the ESA's §2(c), this requirement provides a basis for California
agencies to use their authorities affirmatively to protect and conserve T&E species.
CESA further requires state "lead" agencies to consult with the DFG in order to
ensure that any action authorized, funded or carried out by that
state lead agency is not likely to jeopardize the continued
existence of any endangered or threatened species.599
"State lead agency" is defined under the California Environmental Quality Act (CEQA) as
the "public agency which has the principal responsibility for carrying out or approving a
project which may have a significant effect upon the environment."600 CEQA defines
project to include "activities directly undertaken by any public agency."601 However, the
DFG regulations implementing CEQA provide that "the term 'project' does not mean each
separate government approval."602
Nevertheless, even where an agency is not a lead agency for purposes of CESA
consultation, the agency is responsible for ensuring that its activities do not result in a "take"
of T&E species. In cases where the DFG finds jeopardy to a species, DFG is required to
specify reasonable and prudent alternatives to the project as proposed. The state lead
agency may only forego the alternatives under limited circumstances described in CESA.603
B. The California Environmental Quality Act
The substantive species protection mandates of CESA are closely tied to the
procedural requirements of CEQA, which is similar to the federal National Environmental
Policy Act (NEPA). CEQA states generally that it is the policy of the state to
prevent the elimination of fish or wildlife species due to man's
activities, insure that the fish and wildlife populations do not
drop below self-perpetuating levels and preserve for future
generations representations of all plant and animal
communities....
121
-------
To carry out this and other environmental protection goals, CEQA requires a state agency
to determine whether there are any significant environmental impacts of a proposed project.
Where impacts exist, the agency is to prepare an environment impact report (EIR) which
considers, among other things, the ways in which those impacts can be altered.
Under DFG regulations, a project is presumed to have a potential for adverse
impacts on fish and wildlife if the projects will affect any one of a number of state resources,
including listed T&E species and their habitat.605 Moreover, the definition of "rare or
endangered species" in the regulations even includes species that have not been formally
listed by the state.606
California uses the requirements of CEQA to ensure that California agencies protect
T&E species generally, and that they comply with the specific requirements of CESA.
CEQA encourages the coordination of all environmental review documents. CEQA states
that all environmental review procedures required of local agencies by law or by local
practice "run concurrently, rather than consecutively."607
Like NEPA, CEQA requires that lead agencies obtain the comments of other
relevant agencies. This comment proc^ is a key mechanism for California's consultation
on T&E species issues. CEQA dirr.is lead agencies generally to consult with "all
responsible agencies and with any other public agency which has jurisdiction by law over
natural resources affected by the project which are held in trust for the people of the state
of California."608 To facilitate this consultation process, California's Office of Planning
and Research performs a "clearinghouse" function by helping lead agencies determine
initially which other agencies may have responsibility for a given project.
In addition to CEQA's requirement for consultation during the initial determination
of whether a project will potentially have a significant effect on the environment, CESA
contains an explicit requirement that DFG provide for early informal consultation with state
lead agencies prior to a lead agency's determination whether or not to prepare an EIR.609
After determining that an EIR will be prepared, state lead agencies are required by
CEQA to obtain comments from other relevant agencies prior to completing the EIR.
CEQA specifically provides that, once the decision to prepare an EIR has been made, the
lead agency must consult with, and obtain written findings from, DFG about the potential
effects of the project on the continued existence of T&E species.610 This provision
reinforces the CESA consultation'requirement. The state's Office of Planning and Research
helps to facilitate mandated communications between the agencies at this stage.
CEQA further authorizes a California agency to require that applicants for a lease,
permit or license submit information that may be necessary for determining whether the
proposed project will have a significant environmental impact, or for preparing an EIR.611
This requirement gives agencies authority to request from applicants information on a
project's potential impacts on T&E species. CEQA also provides that state agencies, in
allocating funding to local agency projects that may have a significant effect on the
environment, must require from the local agency a statement including the type of
information required for an EIR.612
122
-------
Although CEQA provides a procedural framework for considering potential impacts
on T&E species, some agencies are exempted from the CEQA's EIR requirements. Like
NEPA's functional equivalence doctrine, CEQA provides for "certification" of state
regulatory programs involving permitting and the adoption of standards or regulations.613
Certification is conditioned on the agency's satisfying a number of criteria, including the
requirement that the agency prepare a description of any proposed activities, alternatives
to the activities, and proposed mitigation measures. In addition, to be certified an agency
must have regulations that require the adoption of feasible alternatives or mitigation
measures that would substantially lessen any significant adverse impacts of a proposed
activity on the environment, including impacts on T&E species and their habitats.
III. CALIFORNIA'S POLLUTION CONTROL AUTHORITIES FOR PROTECTING
T&E SPECIES
A. Water Quality
Water quality protection and water rights regulation in California are carried out by
the state Water Resources Control Board and nine regional boards. The principal state
statute regulating water quality is the Porter-Cologne Water Quality Control Act (Porter-
Cologne Act or Act).614 The Act requires the development of state water policies that
promote the goals of the Act and regional water quality control plans that conform with the
Act and with state policies.615 The Act also requires the establishment of "water quality
objectives" that will reasonably maintain the beneficial uses of the water.616 This could
incorporate consideration of whether water bodies support T&E species. With respect to
protecting the coastal marine environment, the law specifically states that highest priority
is to be given to improving or eliminating discharges that adversely affect "wetlands,
estuaries, and other biological [sic] sensitive sites...."6
The Porter-Cologne Act requires the Water Board to establish discharge
requirements for any discharges that could affect the waters of the state, including
discharges to land, and provides for enforcement and implementation of these
requirements.618 The Act specifically requires dischargers of mining waste to submit a
report on the physical and chemical characteristics of the waste, the potential of the waste
to produce acid mine drainage or the potential to release other hazardous substances.619
In addition to this state scheme for discharge requirements, the Act provides the
framework under which the state has assumed the federal NPDES permit program.620
The Water Board also carries out water quality certification responsibilities under §401 of
the federal Clean Water Act, ensuring that discharges from projects requiring a federal
permit or license will protect "beneficial uses" including the support of T&E species and
habitats.
The Porter-Cologne Act also requires the state and regional boards to develop a
comprehensive program to identify, characterize, and mitigate toxic hot spots located in
enclosed bays and estuaries. The term "toxic hot spots" is defined to include waters in which
hazardous substances pose a substantial threat to aquatic life, wildlife and fisheries, or may
123
-------
adversely affect the beneficial uses of the waters. The law requires the Water Board to
adopt criteria for the assessment and prioritization of toxic hot spots, based on factors
including toxic hazards to fish, shellfish and wildlife. The law also requires the development
of appropriate prevention strategies, including stricter waste discharge requirements. These
provisions provide an opportunity for the Water Board to take affirmative measures to
protect T&E species. They also promote coordination between the Board and DFG, by
requiring the Board to consult with DFG in developing its strategies and in establishing
ongoing monitoring and surveillance plans.
The Water Board therefore has broad statutory authority to protect T&E species
through its regular water quality-related activities such as standard setting, permitting, water
quality certification, and enforcement. An important factor affecting how these authorities
are utilized is the extent to which water quality functions are decentralized. The state board
is responsible for establishing broad state water policies and also for reviewing the activities
of the regional boards. Regulatory activities such as discharge permitting and enforcement
are carried out by nine fairly autonomous regional boards, whose members are appointed
by the Governor. The regional boards are also authorized to establish policies concerning
waters within their jurisdiction, subject to approval by the state board.
Day-to-day decisions such as adopting permit conditions may therefore vary
considerably among regions within California. Because the regional boards have been
certified (as functionally equivalent) under CEQA, discharge permitting activities are not
subject to CEQA's procedural requirements. The regional boards rely primarily on the
process of public review and comment for consideration of T&E species during
permitting.621 As part of this public review, staff send all draft permits to the appropriate
regional DFG office (and often to the U.S. Fish and Wildlife Service) for comment. Review
of draft permits for new facilities is incorporated into general CEQA review of the facility.
The DFG may recommend measures to protect T&E species or habitat, but the regional
board retains discretion whether to adopt those recommendations.
Another factor affecting T&E species consideration is the extent to which species and
habitat protection are perceived as central to the Water Board's mission. As one agency
official noted, the water quality program has historically been oriented toward the chemical
integrity of the water rather than its physical and biological integrity. For example, agency
officials may not see the protection of riparian habitat as a water quality issue. When T&E
species and habitat issues are considered, the board's approach tends to be narrow and
species- or site-specific, rather than taking into account biodiversity and ecosystem
management
One way that California has addressed these two factors is through the adoption of
state water quality policies. These policies set forth water quality principles as well as long
range planning guidelines, and must be followed by the regional boards.622 The state has
incorporated T&E species protection into its Inland Surface Waters Plan as well as its
Enclosed Bays and Estuaries Plan. Among other things, the plans establish requirements
relating to specific water bodies that have been identified by DFG as supporting T&E
species. Within three years, the regional boards are required to determine, in consultation
with DFG, whether the numerical water quality objectives for these waters adequately
124
-------
protect the identified T&E species. If not, the boards must adopt numerical objectives that
are adequately protective.
Implementation of these T&E species protection provisions is now in question,
following a recent decision in a case challenging both the Inland Surface Waters Plan and
the Enclosed Bays and Estuaries Plan. A number of California counties and cities, along
with a paper company, sued the state to nullify the plans and the standards promulgated
under them. The state Superior Court upheld the challenge, finding that in adopting the
plans, the state failed to comply with its Administrative Procedures Act and failed to
prepare the equivalent of an EIR under CEQA. The court also ruled that the state board
did not take into account certain factors mandated by the Porter-Cologne Act in establishing
the water quality standards, including the economic impacts of the regulation and the
beneficial uses and environmental characteristics of particular water bodies.623 The court
ruled that the water quality standards established by the plans are no longer in effect.
Although the state may file an appeal in the case, the decision raises broad questions about
the Water Board's ability to promulgate state-wide standards. This, in turn, influences how
effectively the Board will be able to ensure state-wide action to protect T&E species.
In addition to its establishment of water quality plans, the Water Board is currently
planning education and training activities designed to enhance its T&E species protection
efforts. The Board is using an EPA grant under the §401 water quality certification program
to strengthen and streamline the wetlands regulatory program. As part of this project, the
Board will train its staff members on the importance of resource values and how to protect
them, and will issue guidance documents for staff. Importantly, the Board is also looking
into improving coordination with the DFG. This initiative could help the Board combine
its regulatory authority with the expertise of the DFG and result in more effective protection
of T&E species.
B. Pesticides
California's Department of Pesticide Regulation (DPR) has broad authority to
regulate pesticides for environmental protection. For example, state law requires that DPR
thoroughly evaluate pesticides prior to registration, and establish a program for ongoing
evaluation of registered pesticides.624 The DPR may cancel the registration of, or refuse
to register, any pesticide if the pesticide has "serious uncontrollable adverse effects either
within or outside the agricultural environment," or if there is a "reasonably effective and
practicable alternate material or procedure that is demonstrably less destructive to the
environment.
DPR is also required to create a list of "restricted materials," the use or possession
of which requires a permit from a county agricultural commissioner. The list is to be based
on statutorily enumerated criteria, including "hazard to the environment from drift onto
streams, lakes, and wildlife sanctuaries" and
hazards related to persistent residues in the soil resulting ultimately in
contamination of the air, waterways, estuaries or lakes, with consequent
damage to fish, wild birds, and other wildlife."626
125
-------
In implementing these authorities to protect T&E species, DPR maintains ongoing
contact with DFG in order to identify potential problems relating to particular T&E species
or habitat. Where DFG does raise a concern regarding listed or non-listed species, DPR
uses its authorities to require additional data and to regulate a pesticide use. For example,
after DFG and county agricultural commissioners identified a series of bird losses involving
carbofuran, DPR consulted with those agencies and worked with pesticide registrants to craft
mitigation measures.
Most of DPR's protection of T&E species occurs within the framework of the federal
Endangered Species Protection Program (ESPP) under FIFRA, described in Chapter Three
of this report. Under the ESPP, states may receive federal funding for endangered species
protection activities, and are invited to develop plans for protecting species affected by
pesticides in that state.
The DPR's endangered species protection program is among the most active in the
country. The agency aims to reduce the conflict between T&E species protection and state
pest control needs by using more site-specific information to refine pesticide restrictions
determined at the federal level. Toward this end, California developed a protocol for
evaluating the potential of pesticide exposure to T&E species and their habitats.627 By
incorporating local land use information and creating more detailed habitat maps, DPR
seeks to produce a more detailed assessment of pesticide hazards. This information can be
used by the agency to draft county bulletins under the ESPP and to work with landowners
to develop specific mitigation measures.
A key to the success of California's efforts to develop effective measures for T&E
species protection is the availability of information on locations of species and habitat. Of
particular importance is the accessibility of the Natural Diversity Database, which contains
detailed information on species habitat in California. The DFG provides DPR with a copy
of the database twice per year. Information-sharing and other forms of cooperation with
DFG — as well as with county agencies such as county agricultural commissioners — are also
critical to DPR efforts to develop more site-specific measure for T&E species and habitat
protection.
C. Air Quality
The California Air Resources Board is responsible for setting air quality standards,
conducting monitoring, and preparing the State Implementation Plan under the federal
Clean Air Act.628 Under the California air pollution control laws, regional and local
authorities have primary responsibility to control air pollution from all sources except motor
vehicles.629 The state board oversees 41 air pollution control districts, which are required
to achieve and maintain federal and state ambient air quality standards and to enforce other
applicable federal and state laws.630 Toward this end, the districts are required to prepare
plans for attaining ambient air quality standards.631
126
-------
Consideration of T&E species issues is not prominent in California's air pollution
control regulatory activities. In general, evaluation of T&E species impacts occurs only
when actions are subject to CEQA review requirements. In the context of permitting, for
example, where an air pollution control district is the lead agency on a major permit action,
it will be subject to CEQA (and CESA) requirements for considering impacts on species and
habitat. Where an air pollution control district is not the lead agency or the action does not
involve a major permit, the district will not normally be involved in consultation with DFG
over impacts on T&E species.
The Air Board has considerable authority for conducting research relating to air
pollution impacts on T&E species. California law specifically provides for a limited-term
research program on acid deposition which is to address environmental effects including "the
cumulative potential for damage to aquatic and terrestrial ecosystems."632 Most of the
ecological research undertaken by the Board itself has been part of this program.
The Air Board also has general statutory authority to coordinate research on air
pollution, including "effects of air pollution on human health and comfort, plants and
animals, and reduction in visibility.633 Under this authority, for example, the Board has
ongoing research on the effects of ozone on forested areas, designed to provide a basis for
future air regulatory decisions to protect California's forests.634
D. Mine Reclamation
In addition to the Porter-Cologne Act requirements relating to mining waste, the
California Surface Mining and Water Quality Reclamation Act (SMARA) establishes
requirements for reclamation of surface mining operations in California. The California
Division of Mines and Geology (the Division) is responsible for overseeing the
implementation of SMARA, including the issuance of permits. The Division is located in
the Department of Conservation, within the California Resources Agency.
Local (city or county) jurisdictions serve as lead agencies under SMARA and
implement the law through local ordinances that must be consistent with the standards set
in SMARA. The permit issued under SMARA, which is the main permit for approving a
mine, is issued by the local jurisdiction.
The procedural mechanism for ensuring T&E species protection during mine
permitting is CEQA review. Application for a reclamation permit triggers the CEQA
process. The local jurisdiction, as the lead agency, provides notice of the permit
application to all relevant agencies, including the Division of Mines and Geology and the
DFG.
Although comments issued by the Division of Mines and Geology pursuant to CEQA
are advisory only, the Division's regulations provide that "all reasonable measures shall be
taken to protect the habitat of fish and wildlife."636 The Division thus has authority to
ensure that local jurisdictions adequately protect T&E species in approving mining permits.
127
-------
In addition, CESA's provisions regarding DFG issuance of reasonable and prudent
alternatives apply where there are impacts to T&E species.
According to the Division of Mines and Geology, protection of T&E species is a
standard item on a checklist used by agency staff to evaluate a proposed mine reclamation
plan. The agency has access to the Natural Diversity Database and may use it to check
whether there are any T&E species present at the mining site. Division officials also rely
on observation of sensitive habitat during site visits to identify potential impacts on T&E
species. In addition, the Division has authority to require that the applicant provide
information on T&E species and habitat. The regulations require that applicants provide
information on the "environmental setting" of the mine operations and the "effect that
possible alternate reclaimed site conditions may have upon the existing and future uses of
surrounding lands."637
The Division seeks to coordinate its review of mining permit applications with the
DFG's review and generally defers to DFG recommendations. Where T&E species listed
under CESA are involved, DFG will normally require that specific mitigation measures be
incorporated into the Division's permit. Where there are potential threats to non-listed
species that are nevertheless within the definition of "rare and endangered" under CEQA,
mitigation measures are discretionary. The extent to which recommended measures are
adopted by the lead (local) agencies seems to vary considerably.
E. Hazardous Waste
The California Department of Toxic Substance Control (DTSC), under Cal-EPA, has
authority over the generation, transportation and disposal of waste. In addition to the
permitting and licensing of waste facilities, the DTSC is responsible for cleanup of
hazardous waste sites. The California Hazardous Substances Account Act establishes a
framework for the DTSC to select and rank hazardous waste sites for remediation, to
prepare or approve remedial action plans for listed sites, and to carry out or supervise
remediation. Among the factors to be considered in ranking sites is the extent to which
delay in cleanup will result in hazard to the environment.639 Among the statutory factors
that are to be considered in approving a remedial action plan are (1) the effect of
contamination on present future and probable beneficial uses of threatened resources; (2)
the potential environmental impacts of alternative remedial action measures.640 These
provisions provide authority for DTSC to consider T&E species issues in ranking and
remediating sites.
One aspect of hazardous waste site remediation that has begun to play a more
prominent role within the DTSC in recent years is ecological risk assessment. A special
office within the DTSC, the Office of Scientific Affairs, functions as a technical advisor to
the project for a particular cleanup site. This office performs ecological risk evaluation,
looking at T&E species as a special category of possible ecological receptors. The
assessment covers any current hazards and well as potential future hazards..
128
-------
Although formal consultation with DFG regarding site remediation may not occur
often, DTSC does engage in informal consultation with DFG. For example, where T&E
species are involved at a particular site, DTSC may contact DFG before choosing a type of
cleanup operation. In addition, DTSC has access to considerable T&E species information
through the Natural Diversity Database.
DTSC's effectiveness in assessing the impacts on T&E species associated with
hazardous waste site remediation may depend in part on the extent to which project
managers seek out technical assistance within the DTSC in assessing this particular
ecological risk. Since ecological risk assessment is performed by a special office, project
managers need to know when T&E species issues might be present at a particular site.
Towards this end, the DTSC has recently updated its "Preliminary Endangerment
Assessment" manual, which is used by project managers and which describes the ecological
receptors that may be present at sites, including T&E species. The Office of Scientific
Affairs also provides informal training and ongoing informational support to DTSC staff.
IV. FINDINGS AND RECOMMENDATIONS
This chapter has analyzed a few of the legal authorities and program activities of
California's pollution control agencies. An exhaustive discussion of these agencies' efforts
to protect T&E species is beyond the scope of this report. Nevertheless, several aspects of
California's regulatory scheme noted above are relevant to both federal and state pollution
control agencies.
First, while California's substantive prohibition on "taking" endangered species is
comparable to the federal ESA prohibition, the legal framework for implementing CESA
is largely dependent on the procedural requirements of CEQA. CEQA establishes a process
for consultation in which California lead agencies are required to consider the effects of a
project on T&E species and habitat. Although CEQA's requirements are detailed, these
requirements do not apply to a pollution control agency that is not a "lead agency" or that
is certified as providing the functional equivalent of CEQA review. In these cases, the
consultation process for ensuring compliance with CESA's mandates is less systematic and
less likely to provide for T&E species protection.
For this and other reasons, other types of interagency coordination between DFG and
pollution control agencies is important in California. The public review process for water
discharge permitting illustrates one way of creating a framework for ongoing consultation
between the agencies. In general, though, pollution control agencies in California rely on
informal mechanisms rather than formal agreements or policies to accomplish this
coordination. The DFG has helped to make this approach more effective by providing
broad access for other California agencies to the Natural Diversity Database, which provides
information on T&E species and habitat in California. In this way, state agencies are better
able to determine whether a particular agency action involves potential impacts on T&E
species.
129
-------
Finally, California's administrative structure illustrates the possible effects of
decentralized administrative authority on T&E species protection. Where permitting or
enforcement actions occur at the local level — e.g., in the areas of water quality, air quality
and mine reclamation — it may be more difficult to implement agency-wide policies that
promote T&E species protection. California's promulgation of water control plans
incorporating T&E species protection measures represents an attempt to address T&E
species on a state-wide basis, although the legal status of those plans is currently in doubt.
130
-------
CHAPTER TWELVE
FINDINGS AND CONCLUSIONS
This report demonstrates the opportunities for pollution control agencies to protect
T&E species and their habitats. The previous chapters have identified an extensive array
of pollution control authorities that can be mobilized by both federal and state agencies for
reducing ecological risks and for protecting T&E species and their habitats. Rather than
repeat the many ELI findings from each of those chapters, this chapter provides a summary
of the conclusions reached there. Because implementation of these findings would involve
commitments of substantial resources, it would be advisable for EPA to work with the FWS
and NMFS to decide which of the many EPA actions discussed in this report can produce
the greatest benefits for reducing ecological risks and protecting species and habitats. In
this manner, the Services can assist EPA in prioritizing its next steps towards better
incorporating ESA compliance, as well as species and habitat conservation, into all of its
pollution control programs.
Clean Water Act Findings
EPA's many activities in implementing the Clean Water Act (CWA) offer significant
opportunities for protecting T&E species and their habitats. The mechanisms that EPA can
use under its CWA authorities for reducing ecological risk and implementing the ESA are
discussed in detail in Chapter 2. ELI finds that EPA can advance the goals of the ESA
through the following elements of its clean water program:
1. Incorporating ESA compliance into the NPDES permitting process, both for
permits issued by EPA and state permits which EPA reviews.
2. Ensuring that impacts on T&E species and their habitats are routinely
considered during EPA's review of draft dredge and fill permits and exercising
its authority to veto permits or elevate disputes with the Corps over permits
when necessary to respond to concerns of the FWS or NMFS.
3. Incorporating T&E species and habitat protection into wetlands restoration
and mitigation activities.
4. Establishing federal water quality criteria, standards for total maximum daily
loads, and guidance for state toxic control strategies that incorporate
protection of T&E species and habitats.
5. Targeting federal CWA enforcement actions and oversight of state permitting
programs towards discharges and violations of water quality standards that are
adversely impacting T&E species, especially where critical habitats may be
affected.
131
-------
6. Requiring that, in order to receive EPA approval, state programs for NPDES
and dredge and fill permits must demonstrate capability to protect T&E
species and habitats and rescinding state program approvals in states that fail
to ensure compliance with the ESA.
7. Conditioning grants for state nonpoint source pollution control programs and
wastewater treatment plant construction, as well as loans under the state
revolving fund, to require that projects receiving federal funds be reviewed to
ensure that they will not create adverse impacts on T&E species or their
habitats.
8. Directing other EPA grants and contracts for research, pollution prevention,
training and water quality planning towards projects that are designed to
improve knowledge and management of water quality impacts on T&E species
and their habitats.
9. Utilizing its CWA authorities for monitoring water quality and reporting
discharges of pollutants to collect more data about ecosystem conditions and
the impacts of water quality on species and habitats.
10. Incorporating T&E species protection into EPA's ongoing ecosystem
improvement efforts such as the National Estuary Program, the Great Lakes
Program, the Chesapeake Bay Program, and the Great Plains Initiative.
FIFRA Findings
In implementing FIFRA, EPA has a number of opportunities to take into account
potential impacts of pesticides on T&E species or their habitats and thereby carry out its
duties under the ESA. Chapter 3 has identified many EPA activities under FIFRA that
could have potential impacts, either adverse or positive, on species and habitats; the details
concerning these findings are explained there.
ELI finds that EPA should use its FIFRA authorities to protect species and habitats
in the following ways:
1. Whenever EPA proposes to register or re-register pesticides, grant exemptions
or experimental use permits, or modify a pesticide approval, it should confer
or consult—whether formally or informally, depending upon the requirements
of the ESA — with the FWS arid/or NMFS to determine the possible impacts
of each of these actions on T&E species or their habitats.
2. EPA should impose use restrictions or withdraw approval of a pesticide when
the FWS or NMFS recommends that such action is necessary to protect T&E
species or critical habitats.
132
-------
3. EPA should evaluate and incorporate potential impacts on T&E species
whenever it sets standards for labeling pesticides as toxic to wildlife or fish,
for safe storage and handling of pesticides, and for certifying pesticide
applicators.
4. EPA should also take into account T&E species during its investigation and
enforcement of cases where violations of FIFRA may result in misuse of
pesticides that adversely affect species and habitats.
5. EPA should work with FWS and NMFS to determine how and when to use
its authorities to review state pesticide registrations, to regulate state issuance
of experimentaJ use permits, to approve state plans for certifying pesticide
applicators, to oversee or rescind state enforcement and to suspend state
pesticide registrations, so that EPA will be able to determine whether such
state actions might create adverse impacts on T&E species or their habitats,
6. EPA should require, as an express condition of its FIFRA grants and
cooperative agreements with states and Indian tribes, that the programs thus
funded be designed to protect T&E species and habitats from the adverse
impacts of pesticides.
7. EPA should use its FIFRA authorities for research and data collection during
pesticide registration, and for monitoring and reporting impacts of pesticides
in order to determine the potential and actual effects of pesticides on T&E
species and habitats.
8. EPA should make final its Endangered Species Protection Plan (ESPP) and
continue to develop use restrictions for existing pesticides, and should ensure
that the ESPP and any EPA-funded state ESPP programs adequately protect
T&E species affected by pesticide use.
TSCA Findings
Although EPA has rarely used its TSCA authorities for the purpose of protecting
T&E species and habitats, TSCA provides EPA with several regulatory tools which might
be used to implement the ESA. ELI finds that EPA should therefore consider incorporating
ESA compliance into the following activities under TSCA:
1. Determining whether a new chemical or signiGcant new chemical use must
comply with the requirement for pre-manufacturing notice.
2. Incorporating requirements for analyzing impacts on T&E species into its
rules that govern the manufacture, distribution, labeling, use, record-keeping,
monitoring and disposal of chemical substances that may present a risk of
injury to the environment.
133
-------
3. Assessing higher penalties and bringing enforcement actions for seizure or
injunctive relief in cases involving chemicals harmful to T&E species or their
habitats that are manufactured, processed, used, distributed or disposed in
violation of TSCA.
4. Imposing conditions on its grants to states and contracts with public and
private entities to ensure that TSCA funds are used to prevent chemical
damage to T&E species or their habitats and to generate information about
how chemicals affect species and habitats.
5. Gathering information on the effects of chemicals on T&E species and their
habitats by adopting rules to require that certain chemical substances be
tested by manufacturers for potential unreasonable risks of injury to the
environment, to compile a list of substances that present such risks, and to
prescribe contents of reports, records, notices, instructions and warnings for
manufacturing, testing and use of such chemical substances.
6. Designing its TSCA research, monitoring, data collection and technical
assistance programs so that they are used to gather and disseminate
information on the effects of chemical substances on T&E species and their
habitats.
Chapter 4 explains in detail these findings for using TSCA to promote the goals of
the ESA.
RCRA Findings
In regulating solid and hazardous waste under RCRA, EPA conducts a number of
activities which may affect T&E species or their habitats, as discussed in Chapter 5. ELI
finds that EPA can ensure that its RCRA program incorporates compliance with the ESA
in the following ways:
1. In addition to directing EPA's Regional Administrators to consult under
§7(a)(2) of the ESA before approving TSD permits under RCRA, EPA could
include in all RCRA permit conditions a requirement to monitor and protect
T&E species and habitat and could modify or revoke existing permits that
may be creating hazards for T&E species.
2. EPA should include requirements for T&E species and habitat protection and
for monitoring impacts on species and habitats in its many RCRA rules that
regulate hazardous and solid waste, as well as more specific regulations
concerning plastic-ring carriers, dioxin emissions from municipal solid waste
incinerators, recycled oil, exports of hazardous waste and releases from
underground storage tanks.
134
-------
3. EPA can use its RCRA enforcement authorities to protect T&E species and
habitats through increased fines and penalties, response actions to prevent an
imminent threat to a listed species, and actions to close as an open dump any
facility that creates threats to T&E species or their habitats.
4. EPA's standards for delegation to the states of hazardous waste permits and
the underground storage tank program should require that the state programs
provide for consultation with the FWS and NMFS on state permits and that
those permits include requirements for permittees to monitor and protect
T&E species and their habitats.
5. Information concerning the impacts of waste facilities on T&E species or
habitats could be obtained by EPA under its RCRA authorities for permit
applications, inspecting waste sites, monitoring of hazardous waste releases,
conducting RCRA related research, preparing an inventory of federal waste
disposal facilities, coordinating RCRA compliance and research by other
federal agencies, and disseminating information on solid waste management
facilities.
6. Protection of T&E species and habitats could be made a condition of the
RCRA grants that EPA awards, such as assistance for states to develop their
solid and hazardous waste programs, projects for disposal of discarded tires,
and research or demonstration projects.
Clean Air Act Findings
Under the Clean Air Act, EPA is provided with many regulatory tools that can be
used to protect T&E species and habitats, and a number of EPA's own activities to
implement the Act may require compliance with the ESA. Chapter 6 describes the Clean
Air Act provisions that may implicate T&E species or their habitats. Some of the steps that
EPA could take to protect biodiversity while reducing air pollution include:
1. Initiating ESA consultations for its many permitting actions and similar
approvals under the Clean Air Act, such as reviewing federal operating
permits for major sources or acid rain units, commenting on proposed state
permits, granting NSPS waivers for new technologies, issuing permits for solid
waste combustion units, reviewing preconstruction permits and establishing
BACT or BART for sources in PSD areas, and granting exemptions for island
territories or outer continental shelf (OCS) sources.
2. Taking into account impacts of air pollutants on T&E species and habitats
when promulgating air quality standards such as secondary NAAQS, emission
standards for hazardous air pollutants, new source performance standards,
increments for PSD areas, control technique guidelines for volatile organic
compounds, actions to protect stratospheric ozone or emission standards for
mobile sources, utility boilers or OCS sources.
135
-------
3. Using CAA enforcement authorities for sources of air pollution that threaten
T&E species or their habitats by seeking higher administrative or civil
penalties, taking emergency action to abate imminent threats to the
environment, responding to accidental releases of air toxics and enforcing
PSD requirements.
4. Including requirements for species protection and ESA consultation as criteria
for EPA to be able to approve state implementation plans, state regulation
of air toxics, state operating permit programs, state implementation of PSD
in clean air areas and state regulation of OCS sources.
5. As a condition of EPA funding for state air programs, air pollution research,
or development of new technologies, requiring analysis of their impacts on
T&E species or habitats.
6. Conducting studies, gathering information and monitoring air quality under
its various CAA authorities to enable EPA to develop more information on
the effects of air pollution on T&E species.
CERCLA Findings
EPA's authorities under CERCLA to cleanup hazardous waste sites provide several
opportunities for protecting T&E species and their habitats from adverse impacts. Chapter
7 identifies a number of EPA actions to implement CERCLA that may involve ESA
compliance. As that chapter explains in greater detail, ELI finds that EPA should
incorporate consideration of impacts on species and habitats into the following CERCLA
activities:
1. Assessing, selecting and revising the sites on the National Priorities List.
2. Preparing remedial investigations/feasibility studies (RI/FSs) to determine the
nature or extent of a release.
3. Designing remedial and removal actions at a Superfund site and incorporating
into its response actions any mitigation measures recommended by FWS or
NMFS.
4. Pursuing immediate abatement actions at sites that have adverse impacts on
T&E species.
5. Incorporating protection for T&E species and habitats into settlements with
responsible parties, consent decrees, increased assessments of civil penalties,
and cost recovery actions.
136
-------
6. Making protection of T&E species a condition of contracts or cooperative
agreements with states for response actions at NPL sites, reimbursements to
local governments for emergency response measures, technical assistance
grants, research and training programs, and contracts for cleanup activities.
7. Collecting information about releases of hazardous substances, obtaining
reports from facility operators on such releases, promulgating lists of
reportable substances and determining minimum reportable quantities.
NEPA Findings
EPA implements NEPA both through preparation of its own environmental
assessments and impact statements and through its review of other federal agencies' NEPA
documents, as explained in Chapter 8. In exercising these two types of NEPA
responsibilities, EPA has the following opportunities to advance the goals of the ESA:
1. Requiring as a condition of approving delegated state programs, that states
incorporate into their state level environmental assessment process an
evaluation of impacts on T&E species and their habitats.
2. Ensuring that other federal agencies are adequately addressing T&E species
in their scoping process and NEPA documents.
3. Assisting other agencies in coordinating preparation of their NEPA documents
with their ESA compliance so that both EAs and EISs evaluate the impacts
and range of alternatives produced by consultation with FWS or NMFS on
projects that potentially affect T&E species.
4. Using its commenting process under §309 of the Oean Air Act to raise
objections to proposed federal actions that are likely to have adverse impacts
on T&E species and habitats and for which no NEPA documents have been
prepared.
Findings on Other EPA Programs
In addition to EPA's major pollution control authorities, some other statutes
administered by the agency provide the following additional opportunities for EPA to
protect T&E species and their habitats:
1. Under the Safe Drinking Water Act, EPA can incorporate ESA compliance
into its requirements for approvable state programs for underground injection
control (UIC), monitoring requirements for underground injection wells, UIC
permits issued by EPA itself, and its own investigations, penalty assessments
and enforcement actions for violations of the UIC program.
137
-------
2. The Safe Drinking Water Act also authorizes EPA to take T&E species
protection into account when designating sole source aquifers, funding
demonstration projects for critical aquifer protection areas, approving state
wellhead protection programs, conducting research on potential contamination
of underground drinking water sources, setting standards for water treatment
and funding demonstration projects that provide innovative sources of
drinking water.
3. Protection of T&E species and habitats can be advanced by EPA's
implementation of the Emergency Planning and Community Right-to-Know
Act, both by ensuring that reporting of chemical releases for the Toxic
Release Inventory covers the full range of facilities and types and quantities
of chemicals that may have adverse effects on species and habitats, and by
incorporating impacts on T&E species and habitats as part of emergency
planning and training for stale and local governments.
4. EPA's implementation of the Pollution Prevention Act can provide benefits
for T&E species by targeting its source reduction strategy to address
pollutants that are known to have adverse impacts on T&E species and their
habitats.
General Findings
Across all of these media-specific program recommendations, ELI finds that there
are other, more agency-wide changes that EPA can adopt to incorporate T&E species
protection into all of its activities. ELI finds that EPA should consider implementing some
or all of the following improvements in its ESA compliance efforts:
1. Encouraging the participation of EPA staff and the use of EPA funding in
personnel exchanges with FWS and NMFS. EPA could fund positions for
staff from FWS and NMFS to work within EPA and vice versa. This would
bring into EPA much needed experience in addressing ESA issues in the
permitting and rulemaking arenas, for example; in reverse, presence of EPA
staff in FWS or NMFS offices could promote better understanding of
pollution control issues as they relate to T&E species. EPA regions that
currently participate in multi-governmental ventures (e.g., Great Plains
initiative) enthusiastically recommend EPA participation and funding in
similar inter-agency programs as a means to develop consensus and more
efficiently gather data.
2. Improving communications and sharing information among EPA regions,
between EPA and FWS and NMFS, and between EPA regions and the states.
Even aside from directly assigning personnel from one agency to the offices
of another, staff from these agencies desire more information regarding their
counterparts or appropriate contacts in the other regions and in the other
agency. Improvements in communications among the agencies could include:
138
-------
• Sharing information among agencies and within EPA programs and
regions on the links between pollutants and T&E species or habitats
and better access to data on species-specific impacts;
• Naming a specific individual within each EPA regional office to be the
NMFS or FWS liaison and spelling out that person's duties. There
appears to be some confusion within EPA regarding the responsibilities
of the Regional Endangered Species Coordinator (RESC); some
regions appear to consider the RESC as such a liaison and others do
not;
• Providing lists of the FWS and NMFS field and regional offices,
periodically updated, to EPA regional offices. These lists should
include the Services' ESA coordinators and other relevant contact
personnel. The same suggestion applies with regard to state wildlife
and water quality agencies; and
• Distributing a newsletter to the EPA regions keeping them up-to-date
on current ESA issues.
3. Negotiating MOUs between EPA and the listing agencies to clarify respective
agency responsibilities concerning T&E species and pollution control issues
and to provide a mechanism for interagency information exchange. Examples
of issue areas include encouraging of interagency coordination for developing
pollution control standards and criteria, providing basic environmental data
to FWS and NMFS for use in assessing T&E species needs, and establishing
interagency working groups on particular issues of concern. MOUs could also
be prepared for data exchanges, cooperation mechanisms, and educational
activities, as well as consultation procedures and criteria for biological
assessments.
An example of a forward step that could be duplicated elsewhere is the recent MOU
negotiated between EPA Region 8 and FWS Region 6, in which the two regional offices
agree to exchange information and resources pertaining to general administrative issues,
technical expertise, and law enforcement assistance in a number of programmatic and
statutory areas. Under the MOU, for example, EPA may request technical assistance in
wetlands determination, TMDL evaluation, and review of proposed water quality standards
and criteria. FWS, in return, may ask for assistance in §404 compliance at Superfund sites,
determination of wetlands value as related to water quality, analysis of compliance of
proposed §404 permits with the §404(b)(l) guidelines, enforcement of §404 permit
violations, and water quality modeling. The agencies agree to have the appropriate
representatives from the two regional offices meet at least once a year, to notify each other
of activities that are likely to result in significant beneficial or potential adverse impacts to
natural resources, to collaborate on planning or field sampling activities, and to fund
appropriate activities supporting the MOU.
139
-------
4. Conducting training programs to increase the understanding of T&E species
issues by relevant EPA staff in the different media programs, including
workshops (both for internal EPA training and inter-agency networking) and
cross-program demonstration projects. Specific areas of knowledge that are
needed include:
• Guidance precisely detailing EPA's responsibilities under ESA;
• Procedures for determining required EPA involvement in ESA issues,
along with actual examples of biological assessments, biological
opinions, and potential alternatives to standard EPA program
operations;
• Training courses for EPA personnel explaining the range of problems
impacting T&E species and detailing the §7 consultation process;
• Workshops at the regional level, bringing in staff from other relevant
federal agencies such as FWS and NMFS, as well as state wildlife and
water quality agencies, and concentrating on broader issues of habitat
and watershed or ecosystem protection; and
• Guidance regarding each media program's required coordination with
the RESC, stating the RESCs responsibilities and explaining the
RESC's role during the EPA/FWS/NMFS informal and formal
consultation process, as well as other aspects of EPA's compliance with
the ESA.
By undertaking both program-specific improvements and agency-wide initiatives to
incorporate protection of T&E species and their habitats into pollution control activities,
EPA and state pollution control agencies can move towards a more active role in preserving
biological diversity and reducing ecological risks.
140
-------
END NOTES
1. Data supplied by the Wilderness Society and the Environmental Defense Fund.
2. This delineation of four duties is memorably summarized by Professor Robert
Fischman as "the four c's" - "conserve, consult, confer, and can't take." Fischman, Endangered
Species Conservation: What Should We Expect of Federal Agencies?, 13 Pub. L. L. Rev. 1
(1992).
3. The "Secretary" refers either to the Secretary of the Interior or of Commerce,
depending upon the species at issue.
4. 16 U.S.C. §§ 1536, 1532.
5. 16 U.S.C. § 1531(c).
6. See generally, 50 C.F.R. § 402.12.
7. See generally, 50 C.F.R. § 402.14.
8. These include environmental assessments and environmental impact statements. See
42 U.S.C. § 4321 et seq.
9. 16 U.S.C. § 1536(d).
10. 16 U.S.C § 1536(a)(4).
11. 33 U.S.C § 1251(a).
12. 51 Fed. Reg. 31422 (Sept. 3, 1986) (habitat affected by pollution resulting from dam
impoundments).
13. 53 Fed. Reg. 33998 (Sept. 1, 1988) (pollution from upstream industrial complex).
14. 52 Fed. Reg. 36038 (Sept. 25, 1987) (deterioration of water quality in area may
disturb habitat, dam construction caused significant changes in water flows and quality).
15. 55 Fed. Reg. 42966 (Oct. 25, 1990) (degradation of water quality, pollution caused
by sewage and mining activities, siltation).
16. 43 Fed. Reg. 15429 (Apr. 13, 1978) (stream sedimentation from various nonpoint
pollution sources such as offroad vehicle use, logging, road construction; contamination of
water by livestock; water quality deterioration from mineral extraction).
17. 33 U.S.C. § 1311(a).
141
-------
18. 33 U.S.C. § 1342(a).
19. 51 Fed. Reg. 19926, 19932 (June 3, 1986) (preamble). See National Wildlife
Federation v. Coleman, 529 F.2d 359 (5th Cir. 1976).
20. 50 C.F.R. § 402.02.
21. 51 Fed. Reg. 19926, 19932 (June 3, 1986) (preamble).
22. See 40 C.F.R. part 122, subpart D.
23. 40 C.F.R. § 122.41 (e.g., discharge monitoring reports and allowances for upsets and
bypasses).
24. 33 U.S.C § 1344(a).
25. 33 U.S.C. § 1344(b). The statute requires EPA to develop guidelines, in conjunction
with the Corps, based on criteria comparable to those applicable to the territorial seas,
continuous zone, and ocean under CWA § 403(c). Where the guidelines would prohibit
specification of a disposal site, the Corps must consider the economic impact of the site on
navigation.
26. 33 U.S.C. § 1344(e)(1).
27. 33 U.S.C § 1344(e)(2).
28. 33 U.S.C § 1344(c). EPA must consult with the Corps before making this determi-
nation and make the findings and reasoning public.
29. 33 U.S.C. § 1344(f)(1)(A) - (F).
30. 40 C.F.R. § 230.10.
31. 40 C.F.R. § 230.30. "Impairment or destruction of habitat" includes "adequate good
quality water, spawning and maturation areas, nesting areas, protective cover, adequate and
reliable food supply, and resting areas for migratory species." Id.
32. 40 C.F.R. § 230.75.
33. EPA is also subject to Executive Orders pertaining to development in wetland areas
and floodplains. Executive Order 11988 aims to "reduce the risk of flood loss, [and] to
minimize the impacts of floods on human safety, health and welfare"; Executive Order 11990
aims to "minimize the destruction, loss or degradation of wetlands." Guidelines published
by the Water Resources Council provide instruction on the application of the executive
orders. Floodplain Management Guidelines for Implementing Executive Order 11998,43 Fed.
Reg. 6030 (Feb. 10, 1978). The guidelines require a detailed analysis of alternatives to
142
-------
avoid both long- and short-term impacts associated with destruction of wetlands and the
occupation or modification of wetlands and floodplains.
34. Data supplied by the Wilderness Society and the Environmental Defense Fund.
35. 33 U.S.C. §§ 1311(b)(1)(C), 1313(a) - (c).
36. Arkansas v. Oklahoma, 112 S.Ct. 1046, 1054 (1992).
37. 33 U.S.C § 1313(c)(2)(A).
38. 40 C.F.R. § 131.6.
39. 33 U.S.C. § 1313(c)(2)(A).
40. See 40 C.F.R. § 131.11(b).
41. 40 C.F.R. § 121.11(a)(1).
42. 33 U.S.C. § 1314(a)(1).
43. 40 C.F.R. § 131.12.
44. Memorandum of Law in Support of Government's Motion for Summary Judgement
at 12, Mudd v. Reilfy, CV-91-P-1392 (N.D. Ala. 1993). The plaintiffs specifically argued that
EPA violates ESA § 7 by failing to consult when it reviews state water quality standards.
45. U.S. Environmental Protection Agency, Office of Water Regulations and Standards,
Questions and Answers on Antidegradation, Question and Answer No. 8.
46. For example, EPA can object to a state NPDES permit that violates a state
antidegradation policy.
47. 33 U.S.C. § 1313(c). If EPA determines that a proposed revised or new state water
quality standard is not consistent with the CWA, it shall notify the state and specify the
changes needed. If the state does not make the requested changes, EPA itself is required
to promulgate a water quality standard. 33 U.S.C. § 1313(c)(3).
48. EPA/NMFS/FWS Agreement at 5.
49. EPA/NMFS/FWS Agreement at 6.
50. EPA/NMFS/FWS Agreement at 7-9.
51. 33 U.S.C. § 1313(d)(1). In identifying waters for which effluent limitations are not
stringent enough to implement water quality standards, the state must consider the severity
of the pollution and the uses to be made of the waters.
143
-------
52. Id. EPA determines the pollutants for which TMDLs must be calculated. The load
shall be established at the level necessary to implement applicable water quality standards
with seasonal variations and a margin of safety that accounts for lack of knowledge
concerning the relationship between effluent limitations and water quality.
53. 33 U.S.C. § 1313(d)(1)(A).
54. 33 U.S.C. § 1313(d)(2).
55. Alaska Center for the Environment v. Reilfy, 762 F. Supp. 1422, 1429 (D. Wash. 1991).
56. Id.
57. 33 U.S.C. § 1314(7).
58. 33 U.S.C. § 1314(/).
59. 33 U.S.C. § 1314(a)(8).
60. 33 U.S.C. § 1365.
61. 33 U.S.C. § 1319(a) and (b).
62. 33 U.S.C. § 1319(a)(1). If the state does not commence action within 30 days, this
provision directs EPA to either issue a compliance order or bring a civil action.
63. 33 U.S.C. § 1319(c). The CWA authorizes imposition of criminal penalties on any
person who wilfully or negligently violates CWA requirements or any NPDES or dredge and
fill permit. Fines range from $2,500 to $25,000 per day of violation, or imprisonment for
up to one year, or both. Second and subsequent convictions are punishable by a fine of up
to $50,000, imprisonment for up to two years, or both.
64. H.R. CONF. REP. No. 1004, 99th Cong., 2d Sess. 139 (1986).
65. 33 U.S.C. §§ 1319(d) (judicial civil penalties) and (g)(3) (administrative civil
penalties).
66. 33 U.S.C § 1319(a)(1) and (3).
67. The Corps may use "any information available" in determining whether a violation
has occurred. 33 U.S.C. § 1344(s)(l).
68. U.S. EPA, FY 1991 Water Programs Agency Operating Guidance at 6.
69. Since the species of concern in the Bay/Delta situation are winter run chinook
salmon and the delta smelt, EPA must work with both NMFS and FWS.
144
-------
70. 33 U.S.C. §§ 1342(b) and 1344(g).
71. 33 U.S.C § 1319(a)(2) (assumption of enforcement responsibilities); 33 U.S.C.
§ 1342(c) (rescission of state NPDES programs); 33 U.S.C. § 1344(i) (rescission of state
dredge and fill programs).
72. 33 U.S.C. § 1342(b).
73. 33 U.S.C. § 1342(n).
74. 33 U.S.C. § 1342(d). A state that has an EPA-approved NPDES permit program
must send to EPA a copy of each permit application it receives. The state may not issue
the permit if EPA objects within 90 days. If EPA objects, the state must submit a revised
permit satisfying EPA's objections. If the state does not modify the permit to EPA's
satisfaction, EPA may issue a federal NPDES permit.
75. 33 U.S.C. § 1342(e).
76. Memorandum of Law in Support of Government's Motion for Summary Judgment
at 12, Mudd v. Reilly, CV-91-P-1392-S (N.D. Ala. 1993).
77. 33 U.S.C. § 1344(g)(1).
78. 33 U.S.C § 1344(g)(2) and (3).
79. 33 U.S.C § 1344(h)(1).
80. 33 U.S.C. § 1344(h)(2).
81. 33 U.S.C § 1344(i).
82. 33 U.S.C. § 13440).
83. 33 U.S.C. §§ 1344(k) and (1).
84. 33 U.S.C § 13440').
85. 33 U.S.C § 1329.
86. 33 U.S.C § 1329(d).
87. 33 U.S.C § 1329(b).
88. 33 U.S.C. § 1329(h). Section 1329(h) provides authority for EPA to issue grants to
states with approved nonpoint source pollution management programs subject to terms and
conditions deemed appropriate by EPA.
145
-------
89. 33 U.S.C § 1319(d)(2)(A).
90. U.S. EPA, Office of Water, FY 1991 Water Programs Agency Operating Guidance at
5.
91. 33 U.S.C. §§ 1281-99 (construction grants); 33 U.S.C. §§ 1381-87 (state water
pollution control revolving funds).
92. 33 U.S.C § 1287.
93. U.S. Environmental Protection Agency, Office of Water, FY 1991 Water Programs
Agency Operating Guidance 60.
94. 33 U.S.C. § 1283(a)(2). EPA approval of a grant application is a contractual
obligation of the United States for its proportional share. EPA must enter into a written
agreement with the grant applicant; the agreement must specify which aspects of the pro-
posed project will be eligible for federal monies. EPA may not modify the eligibility
determination unless it is later found to have been made in violation of applicable federal
statutes and regulations.
95. 40 C.F.R. part 35, and appendix A.
96. U.S. Environmental Protection Agency, Office of Water, FY 1991 Water Programs
Agency Operating Guidance 62.
97. See Environmental Protection Agency, Region II, Procedures for Evaluating
Environmental Information Documents Under 205(g) 21-25 (covering EPA/New Jersey
Department of Environmental Protection delegation agreement).
98. 33 U.S.C. § 1382.
99. 33 U.S.C § 1385(a).
100. 33 U.S.C § 1385(c).
101. An example of a state "NEPA-like" process can be found in New Jersey's Division
of Water Resources "Environmental Assessment Requirements for State Assisted Wastewa-
ter Treatment Facilities," NJ.A.C. §§ 7:22-10.2-10.12 (1989).
102. Memorandum of Understanding Between the U.S. Environmental Protection Agency,
Region 8 and the U.S. Fish and Wildlife Service, Region 6, Dec. 29, 1992, at 6.
103. 33 U.S.C. § 1255(a).
104. 33 U.S.C § 1255(b).
146
-------
105. 33 U.S.C. § 1256(a).
106. See Memorandum of Law in Support of Government Motion for Summary Judgment,
Mudd v. Reilfy, CV-91-P-1392-S (N.D. Ala. 1993).
107. Mudd v. Reilfy, Memorandum of Law at 30.
108. Mudd v. Reilfy, Memorandum of Law at 44-46.
109. 33 U.S.C § 1259(a).
110. 33 U.S.C. § 1284.
111. Dick Smith, United States Geological Survey, presentation made at Resources for the
Future, Washington, D.C., April 29, 1993.
112. 33 U.S.C. § 1314(a)(1).
113. 33 U.S.C. § 1314(a)(2). Section 1314(a) generally directs EPA to develop and publish
various categories of information, including identification of conventional pollutants; factors
pertaining to protection of fish and wildlife; guidance to the states on toxic pollutant control
strategies; and methods for establishing and measuring water quality criteria for toxic pollut-
ants on bases other than pollutant-by-pollutant criteria, including biological monitoring and
assessment methods.
114. 33 U.S.C. § 1314(b).
115. Kg, 33 U.S.C §§ 1314(a)(3), (c), (f).
116. 33 U.S.C § 1314(i).
117. 33 U.S.C. § 1254(a).
118. 33 U.S.C § 1254(a)(1) - (6).
119. House Committee on Merchant Marine and Fisheries, Hearing on Biological
Resources, April 1, 1993, testimony of Carol Browner, at 2.
120. 33 U.S.C. § 1330.
121. See U.S. Environmental Protection Agency, Office of Water, Water Programs: Toward
a Prevention Ethic (1990).
122. 33 U.S.C. § 1268.
123. 58 Fed. Reg. 20802 (Apr. 16, 1993).
147
-------
124. 33 U.S.C. § 1268(c).
125. 33 U.S.C § 1268(d).
126. House Committee on Merchant Marine and Fisheries, Hearing on Biological
Resources, April 1, 1993, testimony of John C. Sawhill, President, The Nature Conservancy,
at 3.
127. 33 U.S.C. § 1267(a)(1) - (4).
128. 33 U.S.C. § 1267(b).
129. Data supplied by the Wilderness Society and the Environmental Defense Fund.
130. 50 Fed. Reg. 4943 (Feb. 4, 1985) (brown pelican); 51 Fed. Reg. 6688 (Feb. 25, 1986)
(northern aplomado falcon).
131. 53 Fed. Reg. 38463 (Sept. 30, 1988) (Shasta crayfish); 53 Fed. Reg. 27691 (July 22,
1988) (James spinymussel).
132. Conservation with Rich Patuck, U.S. EPA, Chesapeake Bay Office (Apr. 8, 1993).
133. 882 F.2d 1294 (8th Cir. 1989).
134. 7 U.S.C. §136a(a).
135. 7 U.S.C. §136a(c)(5).
136. 7 U.S.C. §136(bb).
137. 7 U.S.C. §136a(f)(3).
138. 7 U.S.C. §136a(c)(3).
139. 7 U.S.C. §136a(c)(3)(B) (emphasis added).
140. 7 U.S.C §136a(c)(7)(A).
141. 7 U.S.C §§136a(c)(7)(B),(C).
142. 7 U.S.C §136a(d).
143. Id.
144. 7 U.S.C. §136a-l(a).
145. 7 U.S.C. §136a-l(d)(6).
148
-------
146. 7 U.S.C. §136c.
147. 7 U.S.C. §136d(f).
148. 7 U.S.C. §136(f)(l)(c)(ii).
149. 7 U.S.C. §136d(f)(3).
150. 58 Fed. Reg. 9062, 9063 (Feb. 18, 1993).
151. 7 U.S.C. §136o.
152. 58 Fed. Reg. 9062 (Feb. 18, 1993).
153. 7 U.S.C. §136o(b).
154. 7 U.S.C. § 136o(d).
155. 40 CFR §§ 154.7(a)(4),(5).
156. 7 U.S.C. §136d(b).
157. 7 U.S.C. §136d(e).
158. 7 U.S.C. §136d(a).
159. 7 U.S.C. §136d(c).
160. 7 U.S.C. §1361.
161. See generally, 7 U.S.C. §136q.
162. 7 U.S.C. §136c(e).
163. EPA's Endangered Species Protection Program, described below in Section VII, is
an effort to undertake a comprehensive review of existing pesticides in order to determine
adverse impacts on T&E species and to take appropriate action to prevent those impacts.
164. 7 U.S.C §136p.
165. 40 C.F.R. § 166.2(a)(2).
166. 7 U.S.C. §136w(b).
167. 7 U.S.C. §136w(a).
168. 40 C.F.R. § 156.10(h)(2)(ii).
149
-------
169. See generally, 7 U.S.C. §136q.
170. See generally, 7 U.S.C. §136i.
171. 7 U.S.C. §136j.
172. 7 U.S.C. §§136w-l, w-2.
173. 7 U.S.C. §§136f,g.
174. 7 U.S.C. §136k.
175. 7 U.S.C. §1361.
176. 7 U.S.C §136v(a).
177. 7 U.S.C. §136v(c).
178. Id. States may not issue a registration for use of a pesticide in food or feed unless
there exists a tolerance or exemption under the FFDCA.
179. 40 C.F.R. § 162,153(h).
180. Id.
181. 7 U.S.C. §136c(f).
182. 7 U.S.C. §136w-l.
183. 7 U.S.C. §136w-2(c).
184. See generally, 7 U.S.C. §136i.
185. 40 C.F.R. § 171.4(b)(l)(iii)(c).
186. Research activities are discussed below in Section VI.
187. 7 U.S.C. §136u.
188. Id.
189. 7 U.S.C. §136a(c).
190. 7 U.S.C. §136a-l.
191. 7 U.S.C. §136a(c)(2)(B).
150
-------
192. 40 C.F.R. § 158.202. Other data requirements include studies pertaining to
degradation, metabolism, mobility, dissipation, and accumulation.
193. 40 C.F.R. § 158.202(h).
194. 7 U.S.C. §136r.
195. 7 U.S.C. §136f.
196. Id.
197. 7 U.S.C. §136i(a)(l).
198. 7 U.S.C. §§136i-l(a),(b).
199. 7 U.S.C. §136d(a)(2).
200. 7 U.S.C. §136r(a).
201. 7 U.S.C. §§136r, 136w-3(l).
202. 7 U.S.C. §136q(g).
203. 7 U.S.C §136o(d).
204. These substances are mercury, dieldrin, total DDT, PCBs, phenanthrene and pyrene.
Katherine S. Squibb, Joseph M. O'Connor and Theodore J. Kneip, New York/New Jersey
Harbor Estuary Program, Module 3.1: Toxics Characterization (draft report, Jan. 1991).
205. J. Burger, K. Parsons & M. Gochfeld, Toxicant Accumulation and Effects on Birds:
The Reproductive Biology and Effects of Pollutants on Estuarine and Marine Birds of the New
York - New Jersey Harbor Estuary. (EPA No. CE002888-01-0 Final Report, Sept. 1990).
206. Kenworthy, "A Threat to Birds, Some Lead Fishing Sinkers Face U.S. Ban,"
Washington Post, June 24, 1993, at A3.
207. 15 U.S.C § 2602.
208. A new chemical substance is one not included on the list published by the
Administrator pursuant to Section 8(b), 15 U.S.C. § 2607(b).
209. 15 U.S.C § 2604(a).
210. 15 U.S.C. § 2604(a)(2).
211. Id.
151
-------
212. 15 U.S.C. § 2604(c).
213. In addition to a finding of insufficient information, EPA must also find that the
manufacture, processing, distribution, use, or disposal may present an unreasonable risk of
injury to the environment or that the substance will be produced in substantial quantities
and may be reasonably anticipated to enter the environment in substantial quantities prior
to issuing the proposed order.
214. Other regulatory options that may be used to support and promote protection of
threatened and endangered species and their habitat are discussed below, under "Standards."
215. 15 U.S.C. § 2604(h).
216. 15 U.S.C. § 2604(h)(1).
217. 15 U.S.C. § 2604(h)(4).
218. 40 C.F.R. § 723.50.
219. Id.
220. EPA is to determine by rule what constitutes "small quantities" for purposes of this
exemption. This determination itself may have a potential impact on species because it may
qualify a substance for an exemption.
221. 15 U.S.C. § 2612. The term "manufacture" is defined under TSCA § 3 to include
importation. 15 U.S.C. § 2602. In its regulatory policy statement concerning imports of
chemical substances, EPA concludes from this definition that "importers are responsible for
insuring that chemical importation complies with TSCA just as domestic manufacturers are
responsible for insuring that chemical manufacture complies with TSCA." 40 C.F.R. §
707.20.
222. 15 U.S.C § 2611.
223. Id.
224. 15 U:S.C. § 2603.
225. If EPA does not initiate any action, the reasons for not initiating action prior to the
expiration of the applicable notification period must be published in the Federal Register.
226. TSCA § 6, 15 U.S.C. § 2605, also allows prospective regulation of new chemical
substances or significant new uses.
227. 15 U.S.C. § 2605(c).
152
-------
228. 15 U.S.C. § 2605(d).
229. 15 U.S.C. § 2605(e).
230. 40 C.F.R. § 761.
231. 15 U.S.C. §§ 2615 and 2616.
232. 15 U.S.C. § 2606. An "imminently hazardous chemical substance or mixture" is one
which "presents an imminent and unreasonable risk of serious or widespread injury to health
or the environment." The risk is considered imminent if it is likely to result in injury before
a final rule under Section 6 is available to protect against such risk. 15 U.S.C. §§ 2605.
233. 15 U.S.C. § 2608(D).
234. 15 U.S.C. § 2608(a).
235. 15 U.S.C. § 2608(b).
236. 15 U.S.C. § 2611(b).
237. Id.
238. 15 U.S.C. § 2617.
239. States can also enact requirements that are identical to the federal requirement or
requirements that are adopted under the Clean Air Act or other federal law. 15 U.S.C. §
2617.
240. EPA's authority to make grants to the states for programs to regulate chemical
substances is discussed under Section V below.
241. 15 U.S.C § 2627.
242. 15 U.S.C. § 2609(a).
243. 15 U.S.C. § 2626.
244. 15 U.S.C. § 2609(b).
245. 15 U.S.C § 2603(e).
246. Neither the Department of Interior nor the Fish and Wildlife Service is designated
as an official member of the committee. The Department of Commerce does have one
appointment to the committee.
247. 15 U.S.C. § 2603(g).
153
-------
248. 15 U.S.C. § 2603(b).
249. 15 U.S.C. § 2603(b)(3).
250. 15 U.S.C. § 2603(b)(5).
251. 15 U.S.C. § 2603(d).
252. 15 U.S.C. § 2603(b)(4).
253. 15 U.S.C § 2603(d).
254. EPA requires not only formal disciplined studies to be submitted, but also any other
information relating to the effects on the environment. 40 C.F.R. § 720.3.
255. 40 C.F.R. § 721.170.
256. 15 U.S.C. § 2605(a).
257. 15 U.S.C § 2609.
258. 15 U.S.C § 2626.
259. 15 U.S.C § 2625(d).
260. 42 U.S.C. §§ 6901-6992k.
261. See the notice announcing listing of the roseate tern. 52 Fed. Reg. 42066 (Nov. 2,
1987).
262. See the notice announcing a revision in the listing of the desert tortoise, 55 Fed. Reg.
32327 (Aug. 4, 1989).
263. 42 U.S.C § 6925.
264. 40 C.F.R. § 270.3(c).
265. 42 U.S.C § 6925(c)(3).
266. 42 U.S.C. § 6931.
267. 42 U.S.C. § 6904(b).
268. 42 U.S.C. § 6924(h).
269. 42 U.S.C. § 6921.
154
-------
270. 42 U.S.C. §§ 6922-6924.
271. 42 U.S.C § 6945(a).
272. 42 U.S.C. §§ 6907(a)(3) & 6944(a).
273. 42 U.S.C. § 6944(a).
274. 40 C.F.R. § 257.3-2.
275. 42 U.S.C § 6942 directs EPA to promulgate guidelines for state solid waste planning.
276. 42 U.S.C § 6905(b)(2)(B).
277. 42 U.S.C. §§ 6914b and 6914b-l.
278. 58 Fed. Reg. 18062 (Apr. 7, 1993).
279. 42 U.S.C. § 6935.
280. 42 U.S.C. § 6938.
281. 42 U.S.C. § 6991b.
282. 42 U.S.C. § 6928.
283. 42 U.S.C. § 6973.
284. 42 U.S.C § 6991c(h).
285. 42 U.S.C. § 6972(d).
286. 42 U.S.C. § 6945(a).
287. 40 C.F.R. § 257.3-2.
288. 42 U.S.C § 6921(d).
289. 42 U.S.C § 6945(c)(2)(B).
290. 42 U.S.C. § 6926.
291. 42 U.S.C. § 6991c.
292. 42 U.S.C. §§ 6942, 6943, 6946, and 6947.
293. 40 C.F.R. § 256.50(j).
155
-------
294. 42 U.S.C. §§ 6944(b), 6945(a).
295. See 40 C.F.R. § 271.14.
296. 40 C.F.R. § 281.43.
297. 42 U.S.C. § 6904.
298. Among the RCRA provisions that authorize grants or financial assistance and that
might be used to further ESA goals or that might trigger ESA responsibilities are these:
• RCRA § 2002, 42 U.S.C. § 6912, Authorities of Administrator. Paragraph (a)(3)
gives general authorization for grants to states to develop solid waste management
plans or hazardous waste programs.
• RCRA § 2004, 42 U.S.C. § 6914, Grants for discarded tire disposal. Specific
projects could raise ESA concerns.
• RCRA § 3011, 42 U.S.C. § 6931, Assistance to states (for hazardous waste
programs). Funding under this section may be for specific waste facilities, whose
planning and construction might raise ESA issues. It could also be for more general
state programs that might have ESA-related benefits, such as one addressing
environmental threats from inactive sites,
• RCRA §§ 4007(b) and 4008, 42 U.S.C. §§ 6947(b) & 6948, Federal assistance (for
solid waste planning & management). The possible ESA connections here are
analogous to those under § 3011; Funding used for specific facilities may raise site-
specific ESA issues. Funding for well-designed general programs could help states
integrate ESA concerns into their solid waste management activities.
• RCRA § 8001, 42 U.S.C. § 6981, Research, demonstration, training, and other
activities. Subsection (a) grants general authority to fund research activities,
including ones concerning welfare effects.
• RCRA §§ 8004 and 8006, 42 U.S.C. §§ 6984 and 6986, Full-scale demonstration
facilities and resource recovery systems. These projects must conform with the §
1008(a)(3) guidelines, which require protection of listed species and critical habitat.
299. See the discussion of RCRA provisions in the previous note and the discussion of §
1008(a)(3) guidelines in Part II of the text of this chapter, above.
300. 42 U.S.C. § 6925(b).
301. 42 U.S.C. § 6927.
156
-------
302. 42 U.S.C. § 6934.
303. 42 U.S.C. § 6912(a)(5).
304. 42 U.S.C. § 6981.
305. 42 U.S.C. § 6912(a)(2).
306. 42 U.S.C. § 6913.
307. 42 U.S.C § 6983(e).
308. 42 U.S.C. § 6937.
309. 42 U.S.C. § 6933.
310. 42 U.S.C. § 6911(b).
311. 42 U.S.C. § 6912(a)(2).
312. 42 U.S.C. §§ 7401-7671q.
313. 42 U.S.C. § 7409(b)(1).
314. 42 U.S.C. § 7409(b)(2), "Welfare" is defined to include effects on vegetation and
wildlife. 42 U.S.C § 7602(h).
315. See P. Miller, Concept of Forest Decline in Relation to Western U.S. Forests, in Air
Pollution's Toll on Forests and Crops 75, 85 (J. MacKenzie & M. El-Ashry, eds., 1989). Also,
see generally J. MacKenzie & M. El-Ashry, Tree and Crop Injury: A Summary of the
Evidence, in id. at 1.
316. See generally Air Pollution's Toll of Forests & Crops (J. MacKenzie and M. El-Ashry,
eds., 1989); E. Norse, Threats to Biological Diversity in the United States 29 (report prepared
for Sally Valdes-Cogliano, Science Policy Branch, OPPE, EPA, 1990).
317. See Norse, supra note 5, at 29. See also 55 Fed. Reg. 9447, 9449 (Mar. 14, 1990)
(notice of listing of the dwarf wedge mussel).
318. See Norse, supra note 5, at 32-34.
319. Data supplied by the Wilderness Society and the Environmental Defense Fund.
320. 55 Fed. Reg. 9447 (Mar. 14, 1990).
321. 55 Fed. Reg. 12793 (Apr. 5, 1990).
157
-------
322. 55 Fed. Reg. 29361, 29366 (July 19, 1990).
323. See, e.g., the CEQ NEPA regulations on including cumulative actions within the
scope of an environmental impact statement. 40 C.F.R. §§ 1508.7 and .25(a)(2).
Consider too the case of individual timber sales and the spotted owl. Each sale may
harm only a tiny fraction of the owl's critical habitat, yet FWS has declined to allow
individual sales to proceed because their cumulative effect would be significant.
324. See 45 Fed. Reg. 80084 (Dec. 2, 1980) (prologue to the final rule implementing CAA
§ 169A).
325. 42 U.S.C. § 7417(c).
326. 42 U.S.C. §§ 7661-766If.
327. 42 U.S.C. §§ 7651-76510.
328. 42 U.S.C. §§ 7651c-7651e, 765 lh, and 765 lo govern award or EPA sale of allowances
under the acid rain program.
329. 42 U.S.C. § 765 lg.
330. 42 U.S.C. § 7661a(d).
331. 42 U.S.C. § 7661d(b).
332. 42 U.S.C. § 74110').
333. 42 U.S.C. § 7412.
334. 42 U.S.C § 7429(e).
335. 42 U.S.C. § 7475.
336. 42 U.S.C. § 7479(3).
337. 42 U.S.C. § 7491(b)(2)(A).
338. BART is defined at 42 U.S.C. § 7491(g)(2).
339. 42 U.S.C. § 7503.
340. 42 U.S.C. § 7513.
341. 42 U.S.C. § 7625-1.
158
-------
342. 42 U.S.C. § 7627.
343. 42 U.S.C § 765lf(d) or (e).
344. 42 U.S.C. § 7408.
345. 42 U.S.C. § 7409.
346. 42 U.S.C § 7409(b)(2).
347. 42 U.S.C. § 7602(h).
348. See 55 Fed. Reg. 12793 (Apr. 5, 1990) (listing notice).
349. 42 U.S.C. § 7412.
350. 42 U.S.C. § 7411.
351. 42 U.S.C. § 7411(b).
352. 42 U.S.C § 7411(f).
353. 42 U.S.C § 7411(g).
354. 42 U.S.C. § 7415.
355. 42 U.S.C § 7425.
356. 42 U.S.C. § 7426.
357. 42 U.S.C. § 7429.
358. CAA § 165, 42 U.S.C. § 7475, sets increments for particulate matter and sulfur
dioxide. CAA § 166, 424 U.S.C. § 7476, empowers the Administrator to set increments for
other pollutants and orders the Administrator to translate the particulate matter increments
into increments for PM-10. EPA has substituted regulation of PM-10, particulate matter
with an aerodynamic diameter of under ten microns, for regulation of particulates because
only the small particulates pose a real threat to human health.
359. 42 U.S.C. § 7511b.
360. 42 U.S.C. §§ 7513-7513b.
361. 42 U.S.C. §§ 7521-7590.
362. 42 U.S.C. § 7521.
159
-------
363
364,
365
366
367,
368,
369,
370,
371.
372,
373,
374,
375,
376.
377,
378.
379.
380.
381
382
383
384
385
386
42 U.S.C. § 7545.
42 U.S.C, § 7547.
42 U.S.C. § 7554.
42 U.S.C. § 7571.
42 U.S.C. § 7581.
42 U.S.C. § 7583.
42 U.S.C § 7589.
42 U.S.C. § 7627.
Pub. L. 101-549, sec. 406, 104 Stat. 2632 (1990), 42 U.S.C. § 7651 note.
42 U.S.C. § 765 lb(b).
42 U.S.C § 765 If.
42 U.S.C §§ 7671-7671q.
42 U.S.C § 7671e(a).
42 U.S.C § 767In.
42 U.S.C. § 7671k.
42 U.S.C. § 7413.
42 U.S.C. § 7509.
42 U.S.C § 7412(r)(9).
42 U.S.C § 7603.
42 U.S.C § 7642.
42 U.S.C § 7412(1)(7).
42 U.S.C. § 7477.
42 U.S.C. § 7524.
42 U.S.C. § 7420.
-------
387. 42 U.S.C. § 7604.
388. 42 U.S.C. § 765 lj.
389. 42 U.S.C. § 7410.
390. 42 U.S.C. § 7412(1).
391. 42 U.S.C. § 7421.
392. 42 U.S.C. § 7471.
393. 42 U.S.C. §§ 7401 and 7470.
394. 42 U.S.C. § 7475(e).
395. 42 U.S.C. § 7502(a)(2)(B).
396. 42 U.S.C. §§ 7501(1) and 7502(c)(2).
397. 42 U.S.C. § 7661a.
398. 42 U.S.C. § 7661c(a).
399. 42 U.S.C. § 7627.
400. 42 U.S.C. § 7403.
401. 42 U.S.C. § 7404.
402. 42 U.S.C. § 7412(1)(4).
403. 42 U.S.C § 7616.
404. 42 U.S.C. § 7403(0-
405. 42 U.S.C § 7403.
406. 42 U.S.C. § 7404.
407. 42 U.S.C § 7408(g).
408. 42 U.S.C § 7412(1)(3).
409. 42 U.S.C. § 7412(m).
410. 42 U.S.C § 7412(n)(l)(B).
161
-------
411.
42 U.S.C. § 7417.
412. 42 U.S.C. § 7509 note.
413. 42 U.S.C § 7521.
414. 42 U.S.C. § 7547.
415. 42 U.S.C. § 7612.
416. 42 U.S.C § 7619.
417. 42 U.S.C § 7641.
418. 42 U.S.C. § 7651.
419. Pub. L. 101-549, sec. 404, 104 Stat. 2632 (1990).
420. 42 U.S.C. § 765 lb(c).
421. 42 U.S.C. § 7651c(b), (c).
422. 42 U.S.C §§ 9601-75.
423. The President has delegated authority for administering CERCLA to EPA. 42 U.S.C
§ 9615; Exec. Order No. 12316,46 Fed. Reg. 42237 (Aug. 14,1981); Exec. Order No. 12418,
48 Fed. Reg. 20891 (May 5, 1983); Exec. Order No. 12580, 52 Fed. Reg. 2923 (Jan. 29,
1987). This chapter will refer to EPA, rather than the President, as the administering
authority.
424. 42 U.S.C § 9605(a)(8)(B).
425. 42 U.S.C. § 9605(a)(8)(A).
426. See EPA, Office of Solid Waste and Emergency Response, CERCLA Compliance
With Other Laws Manual: Part II, which explains procedures for compliance with the ESA
at listed Superfund sites.
427. 42 U.S.C § 9621(a).
428. 42 U.S.C § 9621(b).
429. 42 U.S.C. § 9621(d). Section 121(d) requires that remedial actions attain a degree
of cleanup that assures protection of human health and the environment. It also mandates
that cleanups, at a minimum, attain the level of standards or requirements in federal or state
laws that are legally applicable to the hazardous substance or that are relevant and
appropriate.
162
-------
430. See 40 C.F.R. §§ 300.414(i), 300.435(b)(2).
431. 42 U.S.C. § 9604(a). EPA may arrange for the removal of hazardous substances itself
or it may allow a responsible party to conduct the cleanup.
432. 42 U.S.C. § 9605(a). This section generally provides for establishment of procedures
and standards for responding to releases of hazardous substances and includes criteria for
listing sites needing cleanup.
433. 42 U.S.C. § 9601(23).
434. 42 U.S.C § 9601(24).
435. 42 U.S.C. § 9606(a). The agency must first determine that there may be an
"imminent and substantial endangerment" to the public health, welfare, or the environment.
436. 42 U.S.C. § 9606(b)(1).
437. 42 U.S.C. § 9607(a).
438. 42 U.S.C § 9607(b).
439. 42 U.S.C § 9607(/).
440. 42 U.S.C § 9607(f)(1).
441. 42 U.S.C § 9601(16).
442. See 16 U.S.C. § 1801 et seq.
443. 42 U.S.C § 9607(f)(1).
444. 42 U.S.C. § 9607(f)(2)(A) and (B).
445. 42 U.S.C. § 9604(b)(2).
446. 42 U.S.C. § 9622(j). Section 122 provides EPA with general authority to enter into
settlement agreements, pursue enforcement, use covenants not to sue, and settle cost
recovery disputes.
447. 42 U.S.C. § 9620(a).
448. 42 U.S.C. § 9601(25).
449. 42 U.S.C. § 9622.
450. 42 U.S.C. § 9609.
163
-------
451. 42 U.S.C. § 109(a)(1) and (b)(1) - (5).
452. 42 U.S.C. § 9609(a)(3).
453. 42 U.S.C. § 9604(e)(5).
454. 42 U.S.C. § 9603(b)(3). These criminal penalties authorize imprisonment for up to
three years (five years for a second or subsequent conviction) for failure to notify the Center
of a reportable release or for knowingly submitting a false or misleading notification.
455. Id.
456. 42 U.S.C. § 9603(c). Section 103(c) requires that EPA be notified of the existence
of hazardous substance storage, treatment, or disposal facilities by the facility's owner or
operator. Knowing failure to notify EPA of the existence of a facility can subject a person
to criminal penalties of up to $10,000, imprisonment for up to one year, or both.
457. 42 U.S.C. § 9604(d)(1)(A).
458. 42 U.S.C. § 9604(d)(1)(B).
459. 42 U.S.C. § 9604(d)(2).
460. 42 U.S.C. § 9611(a).
461. 42 U.S.C. § 9611(a)(5).
462. 42 U.S.C. § 9611(b)(1).
463. 42 U.S.C. § 9611(b)(8):
464. 42 U.S.C § 961 l(b)(10).
465. 42 U.S.C. § 9623.
466. 42 U.S.C. § 9623(b).
467. 42 U.S.C. § 9617(e). The amount of the grant may not exceed $50,000 for any single
grant recipient and the recipient must contribute a minimum of 20 percent of the total.
468. 42 U.S.C. § 9604(d)(1)(A).
469. 42 U.S.C. § 9604(d)(1)(B).
470. 42 U.S.C. § 9604(d)(2).
471. 42 U.S.C. § 9604(d)(3).
164
-------
472. 42 U.S.C. § 9604(b).
473. 42 U.S.C. § 9604(a).
474. 42 U.S.C. § 9604(e)(2).
475. 42 U.S.C. § 9604(e)(3) and (4).
476. See OSWER, CERCLA Compliance With Other Laws Manual 4-12.
477. 42 U.S.C § 9604(b).
478. 42 U.S.C. § 9604(e)(2).
479. 42 U.S.C. § 9604(e)(3) and (4).
480. 42 U.S.C. § 9604(e)(5). The section authorizes EPA to issue a compliance order for
failure to comply with a request for information or access to a facility. Civil actions and
penalties are also authorized.
481. E.g., 42 U.S.C. § 9603(b) and (c).
482. 42 U.S.C. § 9603(c).
483. The National Response Center is established under the Clean Water Act.
484. 42 U.S.C. § 9603(a).
485. 42 U.S.C. § 9602(a).
486. 42 U.S.C § 9660(a).
487. 42 U.S.C. §4331(b).
488. 42 U.S.C. §4332(C). The Council on Environmental Quality's NEPA regulations
provide some guidance on what constitutes a major federal action. See 40 C.F.R. §§
1508.18,1508.27. An action, e.g., includes the failure to act where that failure is reviewable
by a court or administrative tribunal.
489. 40 C.F.R. §§ 1508.9, 1508.11.
490. 42 U.S.C. §4332(C).
491. 42 U.S.C. §4334.
492. 42 U.S.C. §7606.
165
-------
493. 40 C.F.R. §§ 6.500 - 6.1007. "EPA facilities" refers to those buildings or spaces that
are "wholly or predominantly utilized for the special purpose of an agency and not suitable
for other uses..." 40 C.F.R. § 6.901.
494. 40 C.F.R. § 6.108(d).
495. See, e.g., Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), cert,
denied, 417 U.S. 921 (1974).
496. 40 C.F.R. § 6.605(b)(3).
497. 33 U.S.C. § 1381 et seq. A more detailed discussion of this program is provided in
the Clean Water Act chapter of this report.
498. 40 C.F.R. § 1501.7.
499. 40 C.F.R. § 1501.7(a)(6).
500. See generally 40 C.F.R. § 1503.1(a)(4).
501. The Council on Environmental Quality's recent report, Incorporating Biodiversity
Considerations into Environmental Impact Analysis under the National Environmental Policy
Act, provides guidance to those preparing NEPA documents, and may also be of assistance
to reviewers.
502. U.S. Environmental Protection Agency (EPA) Region 10, General Scoping Comments
Regarding U.S. Forest Service Timber Sale Environmental Impact Statements (EISs) at 9
(1991).
503. 42 U.S.C § 4332.
504. Id.
505. 40 C.F.R. § 1502.25(a).
506. 40 C.F.R. §§ 6.300, 6.302(h).
507. 40 C.F.R. § 1502.9(a).
508. 40 C.F.R. § 1502.5.
509. 16 U.S.C §§ 1536(c)(1), (d).
510. 42 U.S.C. § 7609(b).
511. U.S. EPA, Office of Federal Activities, EPA's Section 309 Review: The Clean Air Act
and NEPA (Dec., 1992).
166
-------
512. See 40 C.F.R. §§ 1507.3, 1508.4.
513. 42 U.S.C. § 300g-l.
514. 42 U.S.C §§ 300h(d),(b).
515. 42 U.S.C. §§ 300h(a)(b).
516. See 42 U.S.C. § 300h-l.
517. 42 U.S.C. § 300h-l(c).
518. 42 U.S.C. § 300h(d).
519. Class I wells are used to inject hazardous waste or other industrial and municipal
wastes between 5,000 and 15,000 deep, beneath the lowermost formation containing, within
one quarter mile of the well bore, an underground source of drinking water. 40 C.F.R. §
144.6(a).
520. 40 C.F.R. § 144.4.
521. Id.
522. 40 C.F.R. §§ 144.7(b)(1); 146.4.
523. 42 U.S.C. §§ 300h-2(b)(c).
524. 42 U.S.C. § 300h-2(a)(l).
525. 42 U.S.C. § 300h-2(a)(2).
526. 42 U.S.C § j-2(b).
527. 42 U.S.C. § 300h-5(a).
528. 40 C.F.R. § 144.12(b).
529. 42 U.S.C § 300h-3(e).
530. 42 U.S.C. § 300h-6.
531. 42 U.S.C. §§ 300h(f)(l), 300h(i) (emphasis added).
532. 42 U.S.C. § 300h-6(d) (emphasis added).
533. 40 C.F.R. § 149.3(b)(3)(ii) (emphasis added).
167
-------
534. Wellhead areas are defined in the Act as the "surface and subsurface area
surrounding a water well or wellfield, supplying a public water system, through which
contaminants are reasonably likely to move toward and reach such water well or wellfield."
42 U.S.C. § 300h-7(e).
535. 42 U.S.C. § 300h-7(a).
536. 42 U.S.C. § 300h-7(i).
537. 42 U.S.C § 300j-l.
538. 42 U.S.C. § 300g- 1(b)(7)(a).
539. 42 U.S.C. § 300g-l(b)(8).
540. 42 U.S.C. § 300j-3.
541. 42 U.S.C. § 11023(b)(1)(B).
542. 42 U.S.C. § 11023(b)(2).
543. 42 U.S.C. § 11023(d).
544. 42 U.S.C § 11023(d)(2)(C). No more than 25% of the chemicals on the § 313 list can
included based on this criterion.
545. 42 U.S.C § 11023(f).
546. 42 U.S.C. § 11023(g).
547. 42 U.S.C § 110230').
548. 42 U.S.C § 11045(c).
549. 42 U.S.C §§ 11021, 11022.
550. 42 U.S.C. § 11005.
551. 42 U.S.C. § 13101(b).
552. 42 U.S.C § 13103(b).
553. 42 U.S.C § 13105.
554. 42 U.S.C § 13106.
555. 42 U.S.C. § 13103(a).
168
-------
556. 42 U.S.C. § 13104.
557. 16 U.S.C. § 1604(g)(3)(B) and implementing regulations at 36 C.F.R. §§ 219.19, .26,
& -27(g).
558. 16 U.S.C. §§ 528, 529, 531(a), 472(a), 1602, 1604, & 1607.
559. FSM § 2670.4 (1991).
560. FSM §§ 2670.44(10), .45(6), & .46(4) (1991).
561. FSM § 2670.45(6) (1991).
562. FSM § 2670.43 (1991)
563. "Sensitive species" is a Forest Service category. Forest Service regulations call for
maintenance of "viable populations of existing native and desired non-native vertebrate
species." 36 C.F.R. § 219.19. Forest Service policy calls more generally for maintenance of
all native and desired normative wildlife, fish, and plant species. FSM §2670.22(2) (1991).
"Sensitive species" are plants and animals "identified by a Regional Forester for which
population viability is a concern." FSM § 2670.5(19) (1991). Throughout the Forest Service
Manual, "sensitive species" are given consideration with the listed and proposed threatened
and endangered species.
564. FSM § 2670.43 (1991).
565. FSM §§ 2670.44, .45 (1991).
566. Section 2672.42 of the Forest Service Manual (1990) describes agency standards for
evaluation; § 2672.43 describes procedures.
567. FSM § 2672.42 (1990). These credentials are defined in FSM § 2634.
568. FSM § 2604.21(5) (1990).
569. FSM § 2672.42(5) (1991).
570. FSM § 2672.22 (1991). See also FSM § 2670.43(6) (1991).
571. FSM § 2672.22 (1991).
572. FSM § 2672.23 (1991).
573. EPA should note that neither contract nor constitutional law appear to require the
compensation clause, and it invites litigation over the adequacy of financial awards. If
equity or market pressures require a compensation clause, a compensation ceiling or
schedule could discourage litigation of claims.
169
-------
574. E.g., FSM §§ 2604.12(3), .2(3), .21(2), & .22(4) (1990).
575. See the statutory sources cited in note 2, supra.
576. FSM § 2602 (1990).
577. "Management Indicator Species" are species designated by the Forest Service for use
in Forest Plans. Indicator species have been used in the Forest Service as a rough estimate
of ecosystem health. This approach is currently being challenged by researchers outside of
the Forest Service.
578. ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2).
579. See Brief of Amicus Curiae, National Wildlife Federation, in Support of Plaintiffs
Motion for Summary Judgment, Mudd v. Reilty, No. CV-91-P-1392-S (N.D. Ala. 1993).
580. 30 C.F.R. § 732.13(b)(1).
581. See Chesapeake Bay Foundation, Inc. v. United States, 453 F. Supp. 122 (E.D. Va
1978) (state issuance of NPDES permit under delegated Clean Water program not a federal
action under NEPA).
582. 30 C.F.R. § 731.14 (g)( 10).
583. 40 C.F.R. § 256.50(j).
584. Because ESA issues often arise in the context of a permit application, the applicants
often end up supplementing agency expertise by employing their own scientists to evaluate
or monitor for ESA concerns. These private experts can help meet ESA goals, but the
agency must carefully review their work for bias. They cannot replace agency experts
entirely.
585. 30 C.F.R. §§ 780.16(a)(l)(surface mining) and 784.21(a)(1) (underground mining).
586. 30 C.F.R. §§ 780.16(a)(2) (surface mining) and 784.21(a)(2) (underground mining).
587. 30 C.F.R. §§ 780.l6(b)(surface mining) and 784.21(b) (underground mining).
588. 30 C.F.R. § 810.4(a).
589. 30 C.F.R. §815.15(a). "High value" habitats include those of species of special
interest to a state. These species would be determined by consulting with the state wildlife
and fisheries agency.
590. Id.
170
-------
591. 30 C.F.R. §§ 816.97 (surface mining) and 817.97 (underground mining).
592. Id.
593. SMCRA § 522, 30 U.S.C. § 1272.
594. 30 C.F.R. § 762.11(b)(2).
595. 30 C.F.R. § 762.5.
596. Cal. Fish & Game Code §2050 et seq.
597. Cal. Fish & Game Code §2080.
598. Cal. Fish & Game Code §2055.
599. Cal. Fish & Game Code §2090.
600. Cal. Public Resources Code §21067.
601. Cal. Public Resources Code §21065(a).
602. 14 Cal. Code Reg. §15378(c).
603. Cal. Fish & Game Code §2091. For example, where economic or social conditions
make the alternatives "infeasible," a project may be approved if mitigation and enhancement
measures to minimize T&E species impacts are undertaken and if no irretrievable
commitment of resources was made following the initiation of consultation. Id.
604. Cal. Public Resources Code §21001(c).
605. 14 Cal. Code Reg. §753.5(d). The other resources are:
• riparian land, rivers, streams, watercourses, and wetlands....;
• native and non-native plant life and the soil required to sustain habitat
for fish and wildlife;
• rare and unique plant life and ecological communities dependent on
plant life;
• plants or animals listed as protected or identified for special
management under California law;
• all marine and terrestrial species subject to the jurisdiction of the DFG
and the ecological communities in which they reside; and
• all air and water resources the degradation of which will individually
or cumulatively result in a loss of biological diversity among the plants
and animals residing in that air and water.
171
-------
606. 14 Cal. Code Reg. §15380.
607. Cal. Public Resources Code §21003(a).
608. Cal. Public Resources Code §21080.3(a).
609. Cal. Fish & Game Code §2093.
610. Cal. Public Resources Code §21104.2.
611. Cal. Public Resources Code §21160.
612. Cal. Public Resources Code §21150.
613. Cal. Public Resources Code §21080.5.
614. Cal. Water Code §13000 et seq.
615. Cal. Water Code §§13140-1, 13240.
616. Cal. Water Code §13241.
617. Cal. Water Code §13142.5.
618. Cal. Water Code §§ 13263(a), 13300.
619. Cal. Water Code §13260(1).
620. Cal. Water Code §13370 et seq.
621. Cal. Water Code §13384.
622. Cal. Water Code §§13170, 13240^14.
623. See Water Quality Control Cases, No. JC2610 (Super. Ct. October 15,1993) (Tentative
Decision).
624. Cal. Food & Agr. Code §12824.
625. Cal. Food & Agr. Code §12825.
626. Cal. Food & Agr. Code §14004.5. In determining whether to issue such permits, the
county commissioners must take into account proximity of endangered species. California
Administrative Code, Title 3, §6428.
627. California Department of Food & Agriculture, Hazard of Pesticide Exposures to
Endangered Species and Their Habitats: Assessment Protocol' (1990).
172
-------
628. Cal. Health and Safety Code §§ 39606(b), 39607, 39602.
629. Cal. Health & Safety Code §40000.
630. Cal. Health & Safety Code §40001.
631. Cal. Health & Safety Code §40911.
632. Cal. Health & Safety Code §39903(b).
633. Cal. Health & Safety Code §39701(a)(5) (emphasis added).
634. Cal-EPA, Air Resources Board, Planned Air Pollution Research (1993).
635. Cal. Public Resources Code §21151.7 provides specifically that all cyanide heap
leaching mines require an EIR.
636. 14 Cal. Code Reg. §3503.
637. 14 Cal. Code. Reg. §3502(b)(l).
638. Cal. Health & Safety Code §25300 et seq.
639. Cal. Health & Safety Code §25356(a).
640. Cal. Health & Safety Code §25356.1(c).
173
-------
DRAFT
ENDANGERED SPECIES CONSULTATION HANDBOOK
(730 FW 4A)
PROCEDURES FOR CONDUCTING
SECTION 7
CONSULTATIONS AND CONFERENCES
U.S. FISH AND WILDLIFE SERVICE
NOVEMBER 1994
-------
MESSAGE TO REVIEWERS
The enclosed draft document provides internal guidance to the
Fish and Wildlife Service (FWS) and the National Marine Fisheries
Service (NMFS) on procedures for conducting section 7
consultations and conferences. However, because the document was
prepared initially by the FWS for its own use, not all guidance
is currently applicable to NMFS* section 7 program. For example,
all NMFS biological opinions are issued by the Assistant
Administrator for Fisheries rather than the Regional Directors.
The final document will be revised to clarify the specific
organizational requirements of each Service.
-------
Endangered Species Consultation Handbook - Woveefaer 1994
PREFACE
The following guidance is provided to supplement and clarify the
regulations issued in 50 CFR Part 402 for the purpose of consistent
implementation of those regulations. This guidance supersedes all prior
policy and guidance on section 7, 1s effective on the date of signature,
and 1s to be used until superseded.
Standardized paragraphs are provided for inclusion in biological opinions
and incidental take statements to increase consistency and ensure
compliance with the regulations. The use of the standardized wording
o indicates that the same bases for making decisions are being used
consistently across all Regions;
o helps meet the need for biological opinions and Incidental take
statements to be complete and correct from a regulatory standpoint;
o produces stronger source documents in court actions by documenting
that the Service is correctly considering the important concepts in
•implementing the regulations;
o helps ensure that all the basics are covered, thus avoiding
situations where Federal agencies claim they do not have certain
responsibilities because those responsibilities were not expressed
in the biological opinion or incidental take statement; and
o is particularly important when expressing the logic that supports
the Service's determinations of effect on species and their
habitats.
HANDBOOK REVISIONS
Final guidance and revisions will be issued periodically as regulation
changes may dictate, new consultation or assessment techniques evolve, and
as additional examples or graphics become available.
Revisions will be prepared by the Division of Endangered Species 1n
Washington. Distribution to Service field offices will be the
responsibility of the Regional Offices. Distribution of revisions to
headquarter offices of other Federal agencies will be the responsibility of
the Division of Endangered Species. Regional Offices should provide
revisions to other agencies locally, as appropriate.
-------
Endangered Species Consultation Handbook - Novo&er 1994
TABLE OF CONTENTS
PAGE
PREFACE i
Table of Contents ii
List of Figures viii
List of Exhibits ix
Glossary of Terns used 1n Section 7 Consultations x
CHAPTER 1 - GENERAL INFORMATION
1.1 WELCOME TO SECTION 7 CONSULTATION 1-1
1.2 ROLES AND RESPONSIBILITIES
(A) Lead Regions for Consultation 1-3
(B) Signature Authority 1-3
(C) Intra-Service Section 7 Consultation 1-3
(D) Information Standards and Sources
Best scientific and commercial data 1-4
Writing and bibliographic style 1-5
(E) Early Alerts 1-6
(F) Release of Draft Documents 1-7
(G) Maintaining the Administrative Record 1-8
CHAPTER 2 - COORDINATION
2.1 COORDINATION WITH OTHER ENDANGERED SPECIES ACT FUNCTIONS
(A) Listing 2-1
(B) Recovery Planning and Implementation 2-1
(C) Section 10 Coordination
Endangered and threatened species recovery permits . . 2-3
Habitat conservation planning 2-4
it
-------
Endangered Species Consultation Handbook - Woveeber 1994
CHAPTER 2 - COORDINATION (continued) Page
Experimental populations 2-5
2.2 COORDINATION WITH THE ACTION AGENCY AND APPLICANT
(A) Formal Consultations and Conferences 2-7
(B) Commitment of Resources during Consultation 2-7
(C) Dealing with Nonresponsive Agencies
Agencies that refuse to consult or confer 2-10
Agencies that refuse to reinitiate consultation .... 2-10
(D) Compliance with Section 7(a)(2) 2-10
No jeopardy and/or no adverse modification finding. . . 2-11
Jeopardy/adverse modification finding 2-11
Incidental take statements 2-11
(E) Role of the Permit or License Applicant
Identification of an applicant 2-12
Applicant's role in the consultation process 2-12
(F) Role of the Non-Federal Representative 2-13
2.3 FWS COORDINATION WITH THE NMFS 2-13
2.4 COORDINATION WITH OTHER FEDERAL AGENCIES 2-14
2.5 COORDINATION WITH STATE AGENCIES 2-16
CHAPTER 3 - INFORMAL CONSULTATION
3.1 THE INFORMAL CONSULTATION PROCESS 3-1
3.2 IDENTIFICATION, RESOLUTION, AND CONSERVATION 3-3
3.3 TECHNICAL ASSISTANCE 3-3
3.4 BIOLOGICAL ASSESSMENTS 3-5
3.5 CONCURRENCE/NONCONCURRENCE LETTERS 3-7
<11
-------
Endangered Spectas Consultation Handbook - lioveeber 1994
CHAPTER 4 - FORMAL CONSULTATION PAGE
4.1 THE FORMAL CONSULTATION PROCESS 4-1
4.2 INITIATING FORMAL CONSULTATION 4-3
4.3 EVALUATING INITIATION PACKAGES 4-3
4.4 FORMAL CONSULTATION PROCEDURES
(A) Timeframes for formal consultation 4-4
(B) Incremental steps 4-9
4.5 COMPONENTS OF A FORMAL CONSULTATION 4-11
Introductory paragraph 4-11
Consultation history 4-12
(A) Biological Opinion 4-14
Description of the proposed action 4-14
Status of the species
Background information 4-19
Analysis for status of the species 4-22
Environmental baseline 4-23
Status of the species within the action area . . . 4-23
Effects of the action 4-24
Cumulative effects 4-29
Conclusion 4-31
Analyses for jeopardy and adverse modification . . 4-32
Reasonable and prudent alternatives 4-40
(B) Incidental Take Statement
What is incidental take 4-42
Amount or extent of incidental take 4-46
Effect of the take 4-47
iv
-------
Endangered Species Consultation Kancfeook - Movofaer 1994
CHAPTER 4 - FORMAL CONSULTATION (continued) PAGE
Reasonable and prudent measures and terms and
conditions 4-48
Reasonable and prudent measures 4-48
Terms and conditions 4-49
Coordination with section 10 permits 4-51
Section 10(a)(1)(A) permits .... 4-52
Section 10(a)(1)(B) permits 4-52
Coordination with other wildlife laws
Migratory birds 4-52
Marine mammals 4-53
(C) Conference Report/Notice 4-54
(D) Conservation Recommendations 4-55
(E) Reinitiation Notice 4-56
(F) Literature Cited 4-56
4.6 PROCEDURES FOR MODIFYING BIOLOGICAL OPINIONS AND
INCIDENTAL TAKE STATEMENTS 4-57
4.7 SPECIAL CONSULTATIONS AND REVIEWS 4-60
(A) Conservation Reviews - Section 7(a)(1) 4-60
(B) National Consultations 4-61
Pesticide consultations 4-61
Standard procedures for conducting pesticide
consultations 4-62
Responsibilities 4-63
Procedures for pesticide consultations with
special conditions 4-66
Standardized statements for pesticide
consultations only 4-67
V
-------
Endangered Species Consultatton Handbook - Koveaber 1994
CHAPTER 4 - FORMAL CONSULTATION (continued) PAGE
Water quality consultations [Reserved]
Other programmatic consultations 4-68
(C} Regional or Ecosystem Consultations 4-68
4.8 HANDLING CLASSIFIED DOCUMENTS 4-70
4.9 PROTECTION OF CONFIDENTIAL BUSINESS INFORMATION 4-70
4.10 DISTRIBUTION OF FINAL FORMAL CONSULTATION DOCUMENTS .... 4-71
CHAPTER 5 - CONFERENCE
5.1 THE NEED FOR CONFERENCE 5-1
5.2 INFORMAL CONFERENCE 5-1
(A) Conference Report 5-1
(B) Conference Notice 5-2
5.3 FORMAL CONFERENCE 5-3
(A) Timeframes for formal conference 5-3
(B) Format of a Conference Opinion
Stand-alone conference 5-3
Conference included in a formal consultation .... 5-4
(C) Confirmation as a Formal Consultation 5-4
CHAPTER 6 - EARLY CONSULTATION
6.1 ELIGIBILITY FOR EARLY CONSULTATION 5-1
6.2 PROCEDURES 6-3
6.3 CONFIRMATION AS A FINAL BIOLOGICAL OPINION 6-4
CHAPTER 7 - EMERGENCY CONSULTATION
7.1 THE NEED FOR EMERGENCY CONSULTATION 7-1
7.2 PROCEDURES FOR HANDLING EMERGENCY CONSULTATIONS
(A) Initial Contact by the Action Agency 7-1
Vl
-------
Endangered Species Consultation Handbook - Movaaber 1994
CHAPTER 7 - EMERGENCY CONSULTATION PAGE
(B) Initiating Formal Consultation 7-3
(C) Emergency Biological Opinion 7-3
(D) Incidental Take Statement 7-3
(E) Conservation Recommendations 7-4
CHAPTER 8 - MONITORING AND REPORTING
8.1 MONITORING IMPLEMENTATION/EFFECTS OF REASONABLE AND
PRUDENT ALTERNATIVES AND MEASURES 8-1
8.2 TRACKING COLLECTIVE EFFECTS ON SPECIES AND THEIR
HABITATS 8-3
APPENDICES
(A) REGULATIONS RELATING TO CONSULTATION
(B) FORMATS FOR CONSULTATIONS
(C) EXAMPLES OF CONSULTATIONS
(D) SOLICITOR OPINIONS
(E) INTRA-SERVICE CONSULTATION HANDBOOK
(F) PESTICIDE PROTOCOL
(G) SERVICE/NMFS FIELD OFFICES HANDLING SECTION 7
(H) EXEMPTION PROCESS
Vtl
-------
Endangered Species Consultation Handbook - kovector 1994
LIST OF FIGURES
PAGE
Figure 2-1 Application of section 7(d): 2-9
irreversible or irretrievable
commitment of resources
Figure 3-1 Informal consultation process 3-2
Figure 4-1 Formal consultation process 4-2
Figure 4-2 Outline of a formal consultation 4-13
package
Figure 4-3 Diagram of the action area concept 4-15
for section 7 consultation
Figure 4-4 Example of an action area that 4-15
encompasses the species' range
Figure 4-5 Example of an action area involving 4-16
a water project
Figure 4-6 Determining the action area 4-17
Figure 4-7 Effects of disturbance 4-25
Figure 4-8&9 Example of "recovery units" 4-36/37
Figure 5-1 Conference processes 5-2
Figure 5-2 Comparison of the conference 5-6
and consultation provisions of
the Endangered Species Act
Figure 6-1 Early consultation process 6-2
Figure 7-1 Emergency consultation process 7-2
V111
-------
Endangered Species Consultation Handbook - Mudi^wii 1994
LIST OF EXHIBITS
PAGE
Exhibit 1-1 Example of a request for the best 1-9
scientific data for formal
consultation
Exhibit 2-1 Example of discussion of species' 2-17
tolerance to disturbance
Exhibit 3-1 Example of a species list 3-9
Exhibit 3-2 Example of a need for survey 3-10
Exhibit 3-3 Example of a no effect response 3-12
Exhibit 3-4 Example of a concurrence letter 3-13
Exhibit 3-5 Example of nonconcurrence letter 3-14
Exhibit 4-1 Example of a letter sent to inform 4-6
action agencies that the Service
has received a complete
initiation package
Exhibit 4-2 Example of a letter sent when a 4-7
complete formal consultation request
has not been received
Exhibit 4-3 Example of a request for extension 4-8
of time
Exhibit 4-4 Example of modification of an 4-58
incidental take statement
Exhibit 6-1 Sample letter to inform prospective 6-6
applicants about early consultation
rights
Exhibit 7-1 Emergency consultation notification 7-5
memorandum
IX
-------
Endangered Species Consultation Handbook - Ncrvcater 1994
Glossary of Terms used 1n Section 7 Consultations
Action - all activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies in the United States
or upon the high seas. Examples include, but are not limited to: (a)
actions intended to conserve listed species or their habitat; (b) the
promulgation of regulations; (c) the granting of licenses, contracts,
leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions
directly or indirectly causing modifications to the land, water, or air.
[50 CFR §402.02]
Action area - all areas to be affected directly or indirectly by the
Federal action and not merely the immediate area involved in the action.
[50 CFR §402.02; Handbook section 4.5(A)]
Affect/effect - To affect (a verb) is to bring about a change ("The
proposed action is likely to adversely affect piping plovers nesting on the
shoreline"). The effect (usually a noun) is the result ("The proposed
highway is likely to have the following effects on the Florida scrub jay").
"Affect" appears throughout section 7 regulations and documents In the
phrases "may affect" and "likely to adversely affect." "Effect" appears
throughout section 7 regulations and documents in the phrases "adverse
effects," "beneficial effects," "effects of the action," and "no effect."
Applicant - any person (an individual, corporation, partnership, trust,
association, or any other private entity; or any officer, employee, agent,
department, or instrumentality of the Federal Government, of any State,
municipality, or political subdivision of a State, or of any foreign
government; any State, municipality, or political subdivision of a State;
or any other entity subject to the jurisdiction of the United States) who
requires formal approval or authorization from a Federal agency as a
prerequisite to conducting the action. [50 CFR §402.02; Handbook section
2.2(E)]
Anticipated/allowable/authorized - In Incidental take statements, the
Service determines the amount or extent of incidental take "anticipated"
(expected) due to the proposed action or an action modified by reasonable
and prudent alternatives. When writing incidental take statements, use
only the phrase "anticipated" rather than "allowable" (what the species can
stand) or "authorized", as the Service does not authorize (permit)
incidental take under section 7. [Handbook section 4.5(B)]
Biological assessment - information prepared on major construction
activities by or under the direction of a Federal agency to determine
whether a proposed Federal action is likely to adversely affect listed or
proposed species, or designated or proposed critical habitat. The outcome
of this biological assessment determines whether formal consultation or a
conference is necessary. [50 CFR §402.02, 50 CFR §402.12; Handbook section
3.4]
X
-------
Endangered Species Consultation Hamftnofc - Hovotoer 1994
Biological opinion - document stating the opinion of the F1sh and Wildlife
Service or the National Marine Fisheries Service on whether or not a
Federal action is likely to jeopardize the continued existence of listed
species, or result in the destruction or adverse modification of critical
habitat. [50 CFR §402.02; Handbook section 4.5(A)]
Candidate species - plant and animal taxa considered for possible addition
to the List of Endangered and Threatened Species. [50 CFR §424.02(b)]
Candidate category 1 - taxa for which the Service has on file
sufficient information on biological vulnerability and threat(s) to
support proposals to list them as endangered or threatened species.
Candidate category 2 - taxa for which information now in the possession
of the Service indicates that proposing to list as endangered or
threatened is possibly appropriate, but for which persuasive data on
biological vulnerability and threat are not currently available to
support proposed rules.
Conference - a form of interagency cooperation involving discussions
between a Federal agency and the Service pursuant to section 7(a)(4) of ESA
regarding the effect of an action on proposed species or proposed critical
habitat. Conferences are (1) for Federal actions likely to jeopardize
proposed species, or destroy or adversely modify proposed critical habitat;
(2) designed to help Federal agencies identify and resolve potential
conflicts between an action and species conservation early in a project's
planning; and (3) develop recommendations to minimize or avoid adverse
effects to proposed species or critical habitat. [50 CFR §402.02, §402.10;
Handbook chapter 5]
Conservation - the terms "conserve," "conserving," and "conservation" mean
to use and the use of all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at which
the measures provided pursuant to [the] Act are no longer necessary. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research, census,
law enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transportation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise relieved,
may include regulated taking. [ESA §3(3)]
Conservation recommendations - Service or NMFS suggestions resulting from
formal or informal consultation that (1) identify discretionary measures a
Federal agency can take to minimize or avoid the adverse effects of a
proposed action on listed species or critical habitat; (2) identify
studies, monitoring, or research to develop new information on listed
species or critical habitat; and (3) include suggestions on how an action
agency can assist species conservation, associated with the project, in
furtherance of their authorities under section 7(a)(1) of ESA. [50 CFR
§402.02; Handbook section 4.5(0)]
xi
-------
Endangered Species Consultation Handbook - November 1394
Constituent elements - physical and biological features of critical habitat
including, but not limited to: (1) space for individual and population
growth, and for normal behavior; (2) food, water, air, light, minerals, or
other nutritional or physiological requirements; (3) cover or shelter; (4)
sites for breeding, reproduction, rearing of offspring, germination, or
seed dispersal; and generally, (5) habitats that are protected from
disturbance or are representative of the historic geographic and ecological
distributions of a species. [50 CFR 424.12(b)]
Critical habitat - (1) the specific areas within the geographical area
occupied by the species, at the time 1t 1s listed in accordance with the
provisions of section 4 of ESA, on which are found those physical or
biological features (a} essential to the conservation of the species and
(b) which may require special management considerations or protection; and
(2) specific areas outside the geographical area occupied by the species at
the time 1t is listed in accordance with the provisions of section 4 of
ESA, upon a determination by the Secretary that such areas are essential
for the conservation of the species. Critical habitats are described in 50
CFR Parts 17 or 226.
Cumulative effects - An analysis of those effects of future State, local,
or private activities, not involving Federal activities, that are
reasonably certain to occur within the action area of the Federal action
subject to consultation. [50 CFR §402.02; Handbook section 4.5(A)]
Designated non-Federal representative - The person, agency, or organization
designated by the Federal agency as its representative to conduct informal
consultation or prepare any biological assessment. The non-Federal
representative must be designated by giving written notice to the Director.
If a permit or license applicant is involved and is not the designated non-
Federal representative, then the applicant and the Federal agency must
agree on the choice of the designated non-Federal representative. [50 CFR
402.02, 50 CFR §402.08]
Destruction or adverse modification of critical habitat - a direct or
indirect alteration that appreciably diminishes the value of critical
habitat for both the survival and recovery of a listed species. Such
alterations include, but are not limited to, alterations adversely
modifying any of those physical and biological features [which may have
been determined as constituent elements] that were the basis for
determining the habitat to be critical. [50 CFR §402.02]
Early consultation - a preliminary formal consultation triggered by a
perspective permit or license applicant before any formal application for
such permit or license is actually filed with the Federal regulating
agency. [Handbook chapter 6]
Effects of the action - 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. The effects of
the action are considered along with the environmental baseline and the
xi»
-------
Endangered Species Consultation Handbook - Hoveeber 1994
predicted cumulative effects to determine the overall effects to the
species for purposes of preparing a biological opinion on the proposed
action. [50 CFR §402.02; Handbook section 4.5(A)]
Endangered species - any species which Is 1n danger of extinction
throughout all or a significant portion of its range. [ESA §3(6)]
Environmental baseline - past and present effects of all Federal, State, or
private actions and other human activity 1n an action area, the expected
effects of all proposed Federal projects in an action area that have
already undergone formal or early section 7 consultation, and the effect of
State or private actions that are contemporaneous with the consultation
currently being conducted. [50 CFR §402.02; Handbook section 4.5(A)]
ESA - the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et
seq.
Federal agency - any department, agency, or instrumentality of the United
States. [ESA §3(7)]
Formal consultation - a process that (1) determines whether a proposed
Federal action is likely to jeopardize the continued existence of listed
species or destroy or adversely modify designated critical habitat; (2)
begins with a Federal agency's written request and submittal of a complete
initiation package; and (3) concludes with the issuance of a biological
opinion and incidental take statement. If a proposed Federal action has
any adverse effects on listed species or designated critical habitat,
formal consultation is required; the latter includes proposed Federal
actions intended to benefit listed species, but adversely affecting listed
species or critical habitat in the process or leaving residual adverse
effects. [50 CFR §402.02, 50 CFR §402.14; Handbook chapter 4]
Habitat Conservation Plan - a comprehensive planning document that 1s a
mandatory component of an incidental take permit pursuant to section
10(a)(2) of ESA.
Incidental take - take of listed animal species that results from, but is
not the purpose of, carrying out an otherwise lawful activity conducted by
a Federal agency or applicant. [50 CFR §402.02; Handbook section 4.5(B)]
Indirect effects - environmental effects that are caused by or will result
from the proposed action and are later in time, but are still reasonably
certain to occur. [50 CFR §402.02]
Informal consultation - an optional process that includes all discussions
and correspondence between the Service or NMFS and a Federal agency or
designated non-Federal representative to determine whether a proposed
Federal action is likely to adversely affect listed species or critical
habitat. If a proposed Federal action is likely to result in adverse
effects to listed species or designated critical habitat, formal
consultation is required. This formal consultation requirement includes
xlii
-------
Endangered Species Consultation Handbook - Novesber 1994
activities that will have an overall beneficial effect on a listed species,
but would result in some adverse effects. [50 CFR §402.02, 50 CFR §402.13]
Interdependent actions - actions with no independent utility apart from the
action being considered in a biological opinion. [50 CFR §402.02; Handbook
section 4.4(A)]
Interrelated actions - actions that are part of a larger action and depend
on the larger action for their justification. [50 CFR §402.02; Handbook
section 4.4(A)]
Is likely to adversely affect - the appropriate conclusion if any adverse
effect to listed species or critical habitat may occur as a direct or
indirect result of the proposed action or its interrelated or
interdependent actions. In the event the overall effect of the proposed
action is beneficial to the listed species or critical habitat, but is also
likely to cause some adverse effects, then the proposed action "is likely
to adversely affect" the listed species or critical habitat. An "is likely
to adversely affect" determination requires formal section 7 consultation.
Is likely to jeopardize/adversely modify proposed species/critical habitat
- the appropriate conclusion when the action agency or the Service identify
situations in which the proposed action is likely to jeopardize the species
or adversely modify the critical habitat. If this conclusion is reached,
conference is required.
Is not likely to adversely affect - the appropriate conclusion when effects
on the species or critical habitat are expected to be beneficial,
discountable, or Insignificant. Beneficial effects have contemporaneous
positive effects without any adverse effects to the species or habitat.
[See Handbook page 2-3 for discussion of benefit for section 10(a)(1)(A)
permits.] Insignificant effects relate to the size of the impact and
should never reach the scale where take occurs. Discountable effects are
those extremely unlikely to occur. Based on best judgment, a person would
not: (1) be able to meaningfully measure, detect, or evaluate insignificant
effects; or (2) expect discountable effects to occur.
Jeopardize the continued existence of - to engage in an action that
reasonably would be expected, directly or indirectly, to reduce appreciably
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. [50 CFR §402.02]
Letter - includes memoranda when referring to Department of the Interior
correspondence.
Listed species - any species of fish, wildlife or plant which has been
determined to be endangered or threatened under section 4 of ESA. [50 CFR
§402.02]
xiv
-------
Endangered Species Consultation Handbook - Novoter 1994
Hajor construction activity - a construction project (or other undertaking
having similar physical effects) which is a major Federal action
significantly affecting the quality of the human environment as referred to
in the National Environmental Policy Act (NEPA, 42 U.S.C. 4332(2)(C)). The
term encompasses dams, buildings, pipelines, roads, water resource
developments, and other such undertakings that significantly modify the
physical environment. It does not include these or other physical Impacts,
such, as dredging, blasting, etc., unless these activities are major Federal
actions for purposes of NEPA. [50 CFR §402.02]
NMFS - the National Marine Fisheries Service.
Plant - any member of the plant kingdom, Including seeds, roots, and other
parts thereof. [ESA §3(14)]
Preliminary biological opinion - the opinion issued as a result of early
consultation. [50 CFR §402.02]
Progranmatlc consultation - consultation addressing an agency's multiple
actions on a program, regional or other basis. [Handbook section 4.7]
Proposed critical habitat - habitat proposed in the Federal Register to be
designated or revised as critical habitat under section 4 of ESA for any
listed or proposed species. [50 CFR §402.02]
Proposed species - any species of fish, wildlife or plant that is proposed
in the Federal Register to be listed under section 4 of ESA. [50 CFR
§402.02]
Reasonable and prudent alternatives - alternative actions identified during
formal consultation that can be implemented in a manner consistent with the
intended purpose of the action, that can be implemented consistent with the
agency's legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid the
likelihood of jeopardizing the continued existence of the listed species or
resulting in the destruction or adverse modification of critical habitat.
[50 CFR §402.02; Handbook section 4.5(A)]
Reasonable and prudent measures - actions the Director believes necessary
or appropriate to minimize the effects, i.e., amount or extent, of
incidental take. [50 CFR §402.02; Handbook section 4.5(B)]
Recovery - General: improvement in the status of listed species to the
point at which listing is no longer appropriate under the criteria set out
in section 4(a)(1) of ESA. [50 CFR §402.02] For jeopardy/adverse
modification determinations: improvement in the status of a species and the
ecosystems upon which they depend. Said another way, recovery is the
process by which species' ecosytems are restored so they can support self-
sustaining and self-regulating populations of listed species as persistent
members of native biotic communities. [Handbook section 4.5(A)]
XV
-------
Endangered Species Consultation Handbook - Hoveater 1994
¦Recovery unit" and "population" - "population," or "distinct population
segment," are terms of art used for listing purposes to describe a discrete
vertebrate stock that may be added or deleted from the list of endangered
and threatened species. A "recovery unit" describes management subsets of
the listed species for the purposes of establishing recovery goals or
carrying out management actions. To lessen confusion in the context of
section 7 and other Endangered Species Act activities, the term
"population" will be confined to those species segments officially listed,
or eligible for listing, under section 4(a) of ESA. A subset of an animal
or plant species that needs to be identified for recovery management
purposes will be called a "recovery unit".
Section 4 - the section of the Endangered Species Act of 1973, as amended,
outlining procedures for (1) identifying and listing threatened and
endangered species; (2) identifying, designating, and revising critical
habitat; (3) developing and revising recovery plans; and (4) monitoring
species removed from the list of threatened or endangered species.
Section 7 - the section of the Endangered Species Act of 1973, as amended,
outlining procedures for interagency cooperation to conserve Federally
listed species and designated critical habitat. Section 7(a)(1) requires
Federal agencies to use their authorities to further the conservation of
listed species. Section 7(a)(2) prohibits Federal agencies from
undertaking, funding, permitting, or authorizing actions likely to
jeopardize the continued existence of listed species or destroy or
adversely modify critical habitat. Other paragraphs of this section
establish the requirement to conduct conferences on proposed species; allow
applicants to initiate early consultation; require the Service and NMFS to
prepare biological opinions and issue incidental take statements. Section
7 also establishes procedures for seeking exemptions from the requirements
of section 7(a)(2) from the Endangered Species Committee.
Section 7 consultation - the various section 7 processes, including both
consultation and conference if proposed species are involved.
Section 9 - the section of the Endangered Species Act of 1973, as amended,
that prohibits the taking of endangered species of fish and wildlife as
v/ell as most threatened fish and wildlife species. Additional prohibitions
include (1) import or export of endangered species or products made from
endangered species; (2) interstate or foreign commerce in listed species or
their products; and (3) possession of unlawfully taken endangered species.
Section 10 - the section of the Endangered Species Act of 1973, as amended,
providing exceptions to the section 9 prohibitions. The exceptions most
relevant to section 7 consultations are takings allowed by two kinds of
permits issued by the Service and NMFS: (1) scientific take permits and
(2) incidental take permits. The Service can issue permits to take listed
species for scientific purposes, or to enhance the propagation or survival
of listed species. The Service can also issue permits to take listed
species incidental to otherwise legal activity.
XV>
-------
Endangered Species Consultation Handbook - Nowofcer 1994
Service - the Fish and Wildlife Service.
Species • any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature. [ESA §3(15)]
Survival: - For determination of .jeopardy/adverse modification: the
species' persistence, beyond the conditions leading to its endangerment,
with sufficient resilience to allow recovery. Said another way, survival
is the condition in which a species continues to exist into the future
while retaining the potential for recovery. This condition 1s
characterized by a species with a sufficiently large population,
represented by all age classes, genetic heterogeneity, and number of
sexually mature individuals producing viable offspring, that exists in an
environment providing all requirements for completion of the species'
entire life cycle, including reproduction, sustenance, and shelter.
Take - to harass, harm, pursue, hunt, shoot, wound, trap, capture, or
collect or attempt to engage in any such conduct. Harm* is further defined
to include significant habitat modification or degradation that results in
death or injury to listed species by significantly impairing behavioral
patterns such as breeding, feeding, or sheltering. Harass is defined as
actions that create the likelihood of injury to listed species to such an
extent as to significantly disrupt normal behavior patterns which include,
but are not limited to, breeding, feeding or sheltering.
Threatened species - any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant
portion of its range. [ESA §3(20)]
*0n March 11, 1994, the District Court for the District of Columbia, in
Sweet Home Chapter of Communities for a Great Oregon v. Babbitt. No.92-
5255, held invalid the Service regulation defining 'harm' to embrace
certain significant habitat modifications. The Department of Interior has
petitioned the Supreme Court to review this decision. Until the Supreme
Court announces a ruling, application of the definition of "harm" should be
coordinated with the Solicitors Office.
xvii
-------
Endangered Species Consultation Handbook—November 1994
CHAPTER 1 - GENERAL INFORMATION
1.1 WELCOME TO SECTION 7 CONSULTATION
Section 7 of the Endangered Species Act (ESA) provides some of the most
powerful tools to conserve listed species, assist with species' recovery,
and help protect critical habitat. It affords broad authority to Federal
agencies to solve existing and potential conservation issues.
A review of the legislative history of ESA and its amendments makes it
clear the drafters of the legislation were designing a law with the
strength to protect species, while at the same time creating a mechanism
encouraging a productive dialogue between project proponents and the
agencies charged with implementation of the ESA. It was recognized at an
early stage that there would be conflicts arising from the mandate for
consultation by Federal agencies and their applicants. It was anticipated
that the vast majority of these conflicts would be resolved among project
proponents, Federal agencies, the Services.
By law, section 7 consultation is a cooperative effort, one that seeks
input from affected parties and involves them in problem resolution. This
handbook demonstrates the latitude available within section 7 to work on an
informal as well as a formal basis with applicants and agencies during
project development.
Although formal section 7 consultation must result in a biological opinion
reaching either a jeopardy or no jeopardy (or adverse or no adverse
modification of critical habitat) finding, the process still allows room
for flexibility. Moreover, in areas where numerous actions exist that all
affect a species, baseline effects can be dealt with on a continuing basis,
and biological opinions can be used like building blocks to first establish
a concern, then warn of potential impacts, and finally result in a jeopardy
call. Successive biological opinions can be used to monitor baseline
impacts and thereby satisfy the jeopardy avoidance mandate of section
7(a)(2).
Section 7 is a valuable tool in the conservation of listed species.
Contained within the mandates of section 7 is a charge to all Federal
agencies to utilize their authorities to help recover listed species.
Service biologists have both opportunity and responsibility under section 7
for species conservation. To take optimal advantage of this opportunity,
the following thoughts are offered as an expression of the philosophy
guiding section 7 work.
o The biology comes first. Know the facts; state the case; and provide
supporting documentation.
1-1
-------
Endangered Species Consultation Handbook—Novenber 1994
o Clarity and conciseness are extremely Important. They make the various
consultation documents more understandable to the non-biologist. For
example, a biological opinion should contain enough information to
clearly explain the proposed project, its impacts on the affected
species, and the Services' recoiranendatlons.
o Strong interpersonal skills serve section 7 biologists well.
Establishing a positive working relationship with agencies enhances the
ability to do the job successfully.
o Present a positive image as a representative of the Services.
o Section 7 is a cooperative process. The Services do not have all the
answers. Actively seek the views of the action agency and Its
designated representatives, and involve them in your opinion
preparation, especially in the development of reasonable and prudent
alternatives, reasonable and prudent measures, and conservation
recommendations.
o Use all aspects of section 7, especially opportunities for informal
consultation where solutions can be worked out prior to the more
formalized agendas mandated by formal consultation. Be creative, and
make the process work to the species' advantage.
o Be flexible but not inconsistent. Study the law, the regulations and
this handbook. Know the authorities, be flexible when it is prudent,
and stand firm for consistency when warranted.
o Take advantage of professional support within and outside the Services.
For example, the Division of Engineering can provide valuable technical
review of development proposals. Pursuant to Regional guidance,
attorneys in the Regional and field offices of the Solicitor can offer
advice on section 7 regulations and the latitudes within which to
conduct consultation. Similarly, the Services' law enforcement
personnel may be able to answer questions about deliberate or
incidental take.
o Strive to solve problems locally.
1-2
-------
Endangered Species Consultation Handbook—November 1994
1.2 ROLES AND RESPONSIBILITIES
(A) Lead Regions for Consultation
When a proposed action takes place 1n more than one Region, a lead Region
is assigned responsibility for the consultation. Generally, the lead
Region is the one in which the greatest impact or the largest number of
affected species occur. The Regions involved agree on the appropriate lead
Region to prepare and sign the biological opinion. If agreement cannot be
reached, the matter is referred to Service Directorates.
Coordination between the consultation lead and the recovery lead Regions
becomes necessary when a Region consults on a species for which it does not
have recovery lead. Coordination enables consistency, although the level
of coordination may be mutually agreed to and the lead recovery Region may
release other Regions from responsibility for coordinating on no jeopardy
or no adverse modification opinions. The Regional Director signing the
biological opinion 1s responsible for Its contents, and has final authority
to make any jeopardy or other finding. However, any changes the lead
Region may make in jeopardy or adverse uod1f1cat1on determinations
initially made by other Regions must be coordinated before multi-Region
opinions are finalized.
Requests for consultation from agencies addressing geographically broad-
based or extensive programs are referred to the Washington Office's
Division of Endangered Species. This Division coordinates with the
Assistant Regional Directors for Ecological Services to decide whether to
recommend the formation of a national team, consisting of the involved
Regions, to develop the biological opinion. A national team may report to
a designated Regional Director or the Assistant Director for Ecological
Services. This proposal is submitted to the Director for consideration.
The Director's decision will be communicated to the Involved Regions.
(B) Signature Authority
Responsibility for implementing section 7 consultation and conference
procedures generally rests with the Regional Directors. The Assistant
Director for Ecological Services is the responsible official if the
biological opinion or conference report (or opinion) is to be signed in the
Washington Office. Regional Directors and the Assistant Director for
Ecological Services can delegate responsibility and authority to
subordinate line officers. However, signatory authority for biological
opinions finding jeopardy or adverse modification as well as intra-Service
consultations and conference cannot be delegated below the Regional
Director/Assistant Director level.
(C) Intra-Service Section 7 Consultation
Intra-Service activities will consider effects on listed, proposed and
category 1 candidate species (Fish and Wildlife Service Manual 733 FW
3.2(b)). Category 1 candidates are treated as if they are proposed for
1-3
-------
Endangered Species Consultation Handbook--November 1994
listing. Thus, offices of the Services will consult or confer with the
nearest Fish ans Wildlife Service (FWS) Ecological Services field office or
National Marine Fisheries Service (NHFS) office (Appendix G) on actions
they authorize, fund, or carry out that may affect listed, proposed or
category 1 candidate species or designated or proposed critical habitat.
These actions include refuge operations, public use programs, private lands
and federal aid activities, as well as promulgating regulations and issuing
permits. A Service office requesting formal consultation provides the data
required by the regulations at 50 CFR §402.14(c) and is treated as any
other action agency. See Appendix £ for a copy of the Intra-Servlce
Consultation Handbook. All Endangered Species Act section 10 permits
potentially affect listed species or critical habitats, requiring formal
consultation unless the exception in 50 CFR §402.14(b)(1) applies. Region
9 coordinates with the lead Region on permit applications involving the
export or import of listed species.
(0) Information Standards and Sources
Best available scientific and commercial data
The ESA requires the action agency to provide the best scientific and
commercial data available concerning the impact of the proposed project on
listed species or designated critical habitat. If relevant data are known
to be available to the agency or will be available as the result of ongoing
or imminent studies, the Services should request those data and any other
analyses required by the regulations at 50 CFR §402.14(c), or suggest that
consultation be postponed until those data or analyses are available as
outlined in section 4.4(A) of this handbook (Exhibit 1-1).
If the action agency, or the applicant, insists consultation be completed
without the data or analyses requested, the biological opinion or informal
consultation letter should document that certain analyses or data were not
provided and why that information would have been helpful in improving the
data base for the consultation. In formal consultation, this statement
usually appears in the "effects of the action" section. The Services are
then expected to provide the benefit of the doubt to the species concerned
with respect to such gaps 1n the information base (H.R. Conf. Rep. No. 697,
96th Cong., 2nd Sess. 12 (1979)). This subsequent analysis may have minor
or major consequences (worst case scenario) depending on the significance
of the missing data to the effects determination. The action agency also
should be advised that if and when further data become available, the need
for reinitiation may be triggered.
Section 7 biologists can seek out available information from credible
sources such as listing packages for the species, recovery plans, active
recovery teams, species experts, State wildlife and plant agencies,
Universities, peer-reviewed journals and State Heritage programs. Prior
consultations on the species also can provide information on baseline and
cumulative effects on the species and its habitat, and should provide the
species status and environmental baseline data upon which subsequent
consultations are based.
1-4
-------
Endangered Species Consultation Handbook—November 1994
Writing and bibliographic stvle
o In section 7 consultation documents, keep the first letter of the word
"section" lower cased, except when It begins a sentence.
o Write and edit consultation documents according to the Council of
Biological Editors (CBE) Style Manual (1983), chapter 4, which outlines
prose style for scientific writing.
o Citations included in text should comply with the CBE Style Manual.
Bibliographic references should use the following formats:
1. Single author book.
Tobln, R. 1990. The expendable future: U.S. politics and the
protection of biological diversity. Duke University Press; Durham,
North Carolina.
2. Multiple author book.
Pickett, S.T.A. and P.S. White. 1985. The ecology of natural
disturbance and patch dynamics. Academic Press, Inc.; New York, New
York.
3. Scientific papers (spell out the entire name of the journal).
Ahlgren, I.F. and C.E. Ahlgren. 1960. Ecological effects of forest
fires. Botanical Review 46:304-310.
4. Unpublished reports (biological assessments, status surveys, section
6 reports, etc.). Cite the document as unpublished. Also include the
author's name and the group it was prepared for, as well as their
location.
Helms and Associates. 1992. Results of a diving mussel survey
conducted at the Pattison Brothers, Inc. and Ag Products Co.
facilities near Clayton, Iowa. Unpublished report prepared for
Pattison Brothers, Inc.; Clayton, Iowa.
o Letters and memoranda on non-technical Issues should be edited according
to the conventions established by the Government Printing Office Style
Manual.
1-5
-------
Endangered Species Consultation Handbook—November 1994
(E) Early Alerts
The Regional Directors provide the Washington Office with an early alert to
inform the Director of pending biological opinions, preliminary biological
opinions (early consultation}, and conference opinions of regional or
national significance likely to result 1n findings of jeopardy or adverse
modification. The Region submits such alerts as soon as the final terms of
the opinion or conference are known, although Regional Directors may also
advise the Director of potentially controversial consultations before an
early alert is required.
Non-controversial adverse opinions or conferences do not need an early alert
unless a series of jeopardy/adverse modification opinions 1s expected, e.g.,
numerous pending jeopardy opinions expected for small water depletions in the
Colorado River Basin. In this Instance, a blanket alert covering the overall
issues should be submitted to notify the Washington Office of such
developments.
Submit the early alert to the Assistant Director for Ecological Services
(Attention: Division of Endangered Species). Allow 10 days 1n Washington
prior to finalizing the opinion to be sure the alert has been reviewed.
Use the following format:
EARLY ALERT
Prepared for: Director State:
Date submitted:
ISSUE: Draft [jeopardy/adverse modification] [opinion/conference] for the
[name of the project]
CONSULTING AGENCY/APPLICANT:
PROJECT DESCRIPTION: brief summary
EFFECT ON SPECIES/CRITICAL HABITAT: brief sumnary of effect on
[species/critical habitat]
REASONABLE AND PRUDENT ALTERNATIVES: 11st
CONGRESSIONAL DISTRICTS AFFECTED:
EXPECTED REACTION OF AGENCY/APPLICANT/OTHER INTERESTED PARTIES:
REGIONAL OFFICE CONTACT:
1-6
-------
Endangered Species Consultation Handbook—November 1994
(F) Release of Draft Documents
Providing action agencies or applicants an opportunity to discuss a
developing biological opinion, preliminary opinion, or conference may
result 1n productive discussions that may reduce or eliminate adverse
effects. If an action agency asks to review a draft opinion or a draft
conference report or opinion, the Services provide a draft. The section 7
regulations do not specify how an action agency should ask for this review.
Generally, a telephone request from the equivalent of a field supervisor or
higher official, documented in the administrative record, is sufficient.
Applicants can request draft opinion/conference documents through the
action agency. When an action agency then requests this document for the
applicant, the Services must inform the action agency that, once released
to an applicant or the public, the document may no longer be considered an
interagency memorandum exempt from the disclosure requirements of the
Freedom of Information Act (5 USC §552(b)(5)).
If an action agency or an applicant has comments on a draft opinion or
conference document, the action agency must provide those comments to the
Services in writing for the record. An applicant may copy the Services
with the comments it provides to the action agency. However, the Services
have an obligation to consider an applicant's comments or concerns only
when they have been officially transmitted by the action agency. [50 CFR
§402.14(g)(5)]
1-7
-------
Endangered Species Consultation Handbook—November 1994
(6) Maintaining the Administrative Record
A good administrative record documenting and supporting a consultation and
the resulting biological opinion is important, especially if a biological
opinion is challenged or questions are raised concerning how or why certain
conclusions were reached. At a minimum, administrative records for
significant informal consultations, concurrences, conferences, and formal
consultations should contain the following as appropriate:
o letters, memoranda, public notices, or other documents requesting the
consultation;
o summaries of meetings held, including dates, attendees, purpose, and
results or conclusions;
o summaries of field trips or site Inspections, including dates,
attendees, and photos of the site;
o summaries of personal contacts between the biologist, the Federal
agency, applicant, consultant, private citizens or Interest groups;
o summaries of telephone conversations pertaining to the consultation,
recorded on a standard telephone conversation record form;
o written correspondence pertaining to the consultation, including
correspondence from or to a prospective permit or license applicant;
o published material used in developing the consultation except bulky
material, which can be referenced; and
o other Information used in the consultation process.
1-8
-------
Endangered Species Consultation Handbook—Noveaber 1994
Exhibit 1-1 Example of a request for the best scientific data for foraal
consultation
United States Department of the Interior
FISH AND WILDLIFE SERVICE
U.S.
JSK Building
Bosun,
Quality
Jaruary 14, 1993
02203
Re: Masting Suanary: Lincoln Pulp and Papar/Dicocin/Bald Eaglas
and Piifchaa:
Tha following briafly i
Erwircmantal Protectig^gBnw (EPA) and
Bivircraancal OcntaBinant Specialist and Mangazed
Specialist of this office rmlBti^m to tfaa Linooln IMlp and
NTOES penit application (MB 0008003). A nesting of the atow
indivirtmilw took plaoa at OSVHS Nav B^land Plaid in Concsd, New
Haapahire, on January 5, 1993.
status of tba permit application: As a reault of the 30-day i
pariod/pihl 1c notica, m received ooants frm tbs Indian
Nation, tSFHS, the Stats of Mains (?) and the applicant, Linooln Pulp and
(1WP) • 15* i iiiiihL perind is effectively closed and the
review of oonts and final pnait
LPSP is ona of eeven currently oparating kraft prooaas papar Bills in mine.
Hie sill at Old Tarn is tts only other kraft mill on the River;
other )aaft wills ara locatad on ttaa Prannynot Rivar, St. CXoix Rivar, and
three at ttaa Katuiabau Rivar. Itaa Bill at Old Idun is larger then IMP and
a NPDES parait in August 1992. The parait asy or aay not have
m the review proaaaa, OA has not acouuntad for tha affaeta
of overlapping discharges (i.e.Old loen Bill and ZPSP).
BriarecrBfl ffpnrrlfln
Uia bald eagle, a FartarmUy andangerad apariaa, is a year rand resident af
tha Pciiwirt. Rivar systn, and two mating tarritorias occur vittoin five
ailas of Lincoln. Both these sitas hawa a vary poor pra^jction record. One
of tha sitae is apparently within one aila at the area uaad to smatpile and
spread wood waste and uaauuant plant sludge (outfall 002).
For the past 15 years, the bald eagle papulation in Maine has eadiiJaited slow
tut steady recovery fran the effects of envixarnental contaaination of its
£ood chain. The population haa rebounded frcn a low of scae thirty nesting
pairs in the early 1960'e to 140 pairs in 1992 (C. Todd, Koine Itapt. of
Inland Fisheries and Wildlife, in litt., 1992). Nonetheless, reproductive
«anpMB of Maine bald eaglee (young nagln raised per nesting pair) has
aonsistantly lagged behind that of other reooiMring eagle populations (Owan
1-9
-------
Endangered Specie* Consultation Handbook—Novaiber 1994
gt fti-, Trans, of Northeast Fish and Wildlife Oonf., 1991). Par exaaple, in
the Pacific states sane 600 nesting pairs of eagles ejdiibit ap average
productivity of l.o young per pair; in Chesapeake Bay sobs 250 noting pairs
have an average productivity of 1.1 young/pair; in the Southeastern U.S.
sane 600 pairs prodviop an average of 0.9 young per pair (USFWS p*rtor»i
ftaqjfffar vol. 55, no. 26, 2/17/90). In Maine, productivity has been 10-40
% lower — 0.64 in 1989, 0.78 in 1990, 0.92 in 1991, and 0.80 in 1992; Bean
- 0.78 (C. Ttrfd, Maine Dept. of Inland Fisheries and Wildlife, in litt. 1.
Concern that Maine eagle productivity is being adversely affected by either
a lingering (i.e., residual) pnsticidn contamination problem or sane other
contamination problem has tampted soranl taunti. investigations.
Bald eagles nesting along the Penobscot River are apparently experiencing
even lower reproductive success (0.51, it»12( 4-yr average) than the state
population as a whole [0.78, 4-yr average, n>400)]. This represents a 35%
lower reproductive rate for the Penobscot River pairs, coopered to statewide
figures (L. Welch, USFWS, Old Town). Similarly, the eight pairs nesting at
or below Lincoln exhibit a history a£ lower nest s»terras (0.48, 4-yr
average) than the three nests along the river above Lincoln (0.66, 4-yr
average). Although these differences are not statistically significant
(high variance and snail sasple size), they may be biologically significant
and suggest a contaminant or other problem for eagles in the watershed.
Please note that the data provided above are different from that distributed
at the meeting and the figure should be discarded.
USFWS Region l in Oregon and Washington is currently formally consulting
with EPA pursuant to Section 7 of the Endangered Specia Act (ESA) regarding
the setting of a DHL (Total Masdsun Daily load) for dicodn in the mimifriw
River. Bald eagles in this watershed are experiencing reduced reproductive
Tuccess and analyses at eagle egg data confirm elevated levels of dicodn are
present. Elevated levels of other contaminants are also present. FW5
Region 1 has expressed dissatisfaction with the 0.013 ppq in wtar (harmonic
mean flow). FWS believes it may be inadequate to protect f iafci and aquatic
wildlife, and aonvened a coanittee of scisitists to evaluate dinacin
literature and provide reccanendations, which apparently are not yet
available. EPA Region 10 (Seattle) funded the oost of collecting and
analyzing eagle egg "wmples from the fipliirnhia River, copies of several
correspondence between FWS Region l and S>A Region 10 were provided to EPA
staff present.
Section 7 of the ESA clearly places upon the Federal action agency the
responsibility to review their prujr&ns and evaluate whether a proposal
action will adversely affect an endangered species. We note that FWS Region
l has required that ERA Region 10 play an active role in reviewing the
effects of the proposed UCL on and in addition to funding
analyses of egg tissues far TDEs (total dicodn equivalents), EPA has
consulted everts, conducted literature searches and provided FWS an
extensive list of reprints on the subject. We would like EPA Region 1 to
assume a more active role in evaluating the effects of this action (and
other NFDES permits) on endangered bald eagles and other wildlife.
We currently have a total of 12 (failed) bald eagle eggs collected in 1991
and 1992 in'Maine. While none are from Penobscot River nests, one isfrcat
Boudoinham in the Kennebec River watershed (Figure 1). We are aarrently
assessing the cut mm illations of co-planar aranatic conpeunds in these 12
eggs. The results of the analyses will indicate the concentration and toxic
effects of TDBs in each sasple. The toxic effect of egg TOEs will be
determined through dose-response bioassays of rat liver cells exposed to co-
-------
Endangered Species Consultation Handbook—NoveNber 1994
planar aromatic rmpounds extracted from the eggs. Ms also have 26 blood
sasples free "prestmably healthy" nestling bald eagles collected in Maine
during 1991 and 1992. Two of these are from Penobscot River nests (one
above Lincoln and one below) and we intend to conduct '.mrjwnKr specific
analyses on ell sanples.
Me will sake every effort to collect addled eggs fin Maine in 1993,
especially frcn Penobscot River nests. While we can cover the costs of
locating (aerial surveys) and collecting these eggs (contract climber), we
request E7A financial assistance in having these simples Analyzed (estimated
cost at $2,000./saqple ¦ $14,000).
Other pertinent biological infCroatian: Bald eagles along the PenoLsout
River are believed to be resident year round (as to migratory), are
taown to be eating resident fish (as enoied to anadrtmous fish) and crreannp
whale fish as cnusnri to wisrle fillets. Therefore, we can safely asstanB a
worst case scenario relative to the vulnerability of eagles to a
contaminated prey base.
Available fish flesh data from the Penobscot indicate that 2D& in sene fish
spwrrirs aay presently ewoeed 25 pptr. (>25 pg/g). IPk Regicn l indicated
that an eagle would be adversely affected if it ooratned 140 pg IDE/kg of
body weight. A 5 leg adult eagle would therefore hove to rrrramr only 28
grams of fish containing 25 pg/g in order to be eaqwmd to an adwuue
dietary dose. Ma Joor frcn other studies, that wintering bald eagles
require a of 350g/day of food to meet caloric energy needs. At 25
pg/g of fish, a diet containing >25 pg/g of IDE would expose adult eagles to
more than 12 times the reoonended daily doee.
2S£bt Biological Bpkuebb
Hie bald eagle is only one of many fish eating birds and mnmnnlB present in
the watershed. Loons, osprey, mergansers and other diving ducks, as well as
grMt blue herons may be imposed to fish containing elevated levels of
dioocin. These species are protected by the Migratory Bird Treaty Act.
We obtained and briefly reviewed a iuaber of scientific articles describing
the pathogenic effects of diaadn en birds. In particular, the bird eateeyo
is described as being very vulnerable to dioocin with one researcher calling
the egg "the most sensitive taadcological end point", in brief these
studies confirmed that bicnagni£icsticn (water to fish, fish to piscivorous
birds) does occur; and that edema, reduced chick weights, dqupfiwri growth
curves, depressed fledging success or breeding failure (embryotocicity) has
been doaaented in great blue herons, Fcrster's teens, and herring gulls -
all attributable to elevated dioocin levels.
NPPES Permits
Permits are issued far a five-year period, although EPA has authority to
revoke or amend them if new information frwnire available. It would be
helpful to have a listing of the permits for the other Jaaft mills in Maine
and New England, their locations and expiration/renewal application dates.
1-11
-------
Endangered Species Consultation Handbook—Novanber 1994
We briefly riivareyri the fact that the river is not currently oaeting water
quality standards relative to dicocin. Given that, haw can an agency
oonterplate authorizing production increases? Response - no inarease in
dicaori discharges will be allowed and through the use of HHPs (Best Mgt.
Practices) and fish tissue sanpling (April and August), dicocin discharges
will be aonitared. Since angles mnaimB whole fish, FWS
strongly ieo.iiiiieii.ls whole fish or ooaposite saapJLing.
EsaamsrifiUsiE
We urge that the prupoued revisions to the existing permit be held in
abeyance and that informal consultation be aoRtinuad. Additional tine is
required to allow far contaminant analysis of eagle eggs and blood samples
in cur possession; the collection and analysis of additional eagle eggs fron
the rmi isi ni and other watersheds? and for additional literature review.
We are also awaiting the axtcaoe af the FUS rnmitrm that is reviewing
EPA's piopooed dicocin MIL for the Oil urchin River (due late January 1993).
H* result of the on-going form! consultation between our agencies on the
west ooest could have rational implications and a bsaring an this permit
application. This consultation is to be oraqaleted by late January 1993 (see
enclosed telephone conversation record).
Further coordination regarding this setter should be referred to flBBH
and QfiSBHBHBfe of this off ion, tel. 603/225-1411.
Sincerely yours,
1-12
-------
Endangered Species Consultation Handbook—Novcnber 1994
CHAPTER 2 - COORDINATION
2.1 COORDINATION WITH OTHER ENDANGERED SPECIES ACT FUNCTIONS
(A) Listing
Section 7 compliance may become necessary as soon as a species is proposed
for listing or critical habitat is proposed for designation. Conferences
generally base analyses of effects on the species status, distribution and
threat data Included in proposed listing rules, as well as constituent
elements described 1n proposed critical habitat rules. Other reliable
data, such as published studies, species accounts, peer-reviewed journal
articles also must be considered. Conferences conducted during the
proposal period provide listing biologists with Information to help refine
the analysis of threats, and species or habitat data collected during these
conferences. The final listing or critical habitat designation packages
provide a primary data source for consultations until recovery plans and
recovery-related research become available.
(B) Recovery Planning and Implementation
The 1988 amendments to the ESA require increasingly comprehensive recovery
plans that include "a description of such site-specific management actions
as may be necessary to achieve the plan's goal for the conservation and
survival of the species." This information should consider the potential
effects of activities that may require section 7 consultation, and, at a
minimum, should include the following:
o numbers and distribution of recovery units;
o basic life history of the species and its relationships to its
supporting habitat;
o natural and human-related factors affecting the species of its
habitat, including elements of the species' critical habitat (e.g.,
requirements for cover; nutriment; presence or absence of fire,
flooding, and climatic features; symbionts, including pollinators;
effects of predators, competitors, and other limiting factors such
as the need for isolation from human or human-related activities or
commensals), whose alteration can lead to the species' decreased
capability to survive a minimum of 100 years;
o any distinction in species' behavior or essential habitat needs if
the species has a different core area or need for another life
cycle period (breeding, nonbreeding, migrating or over wintering
period); and
o tolerance of the species or essential elements of its habitat to
human activities (Exhibit 2-1).
2-1
-------
Endangered Species Consultation Handbook--November 1994
Conservation recommendations should agree with management actions outlined
in recovery plans, and recovery plans sometimes identify consultation as a
tool encouraging Federal agencies to take their conservation
responslbilities seriously. These interrelationships emphasize the
importance of coordinating consultation with other recovery efforts. For
example, if recovery plans identify specific habitats as essential for
species' survival and recovery, close attention should be given to actions
that may affect that habitat.
2-2
-------
Endangered Species Consultation Handbook--November 1994
(C) Section 10 Coordination
Endangered and threatened species permits - section lO(aHlHA)
Section 10(a)(1)(A) requires a permit from the Services to conduct
activities otherwise prohibited by section 9, for scientific purposes or to
enhance the propagation or survival of the affected species. In addition,
by regulation threatened species permits may be issued for zoological,
horticultural, or botanical exhibition and educational or special purposes.
Section 10(d) further requires, among other things, the permitted activity
not operate to the disadvantage of the species and be consistent with the
purposes and policy set forth in section 2 of the ESA. Simply stated,
section 10(a)(1)(A) permits are to be Issued only when all taking,
including anticipated incidental take, associated with the permitted
activity will provide a net benefit to the recovery of the species in the
wild.
Formal consultation 1s most likely required on the issuance of Regional
blanket permits. Informal section 7 consultation (see Appendix E for the
intra-Service consultation) must be conducted prior to issuance of a
section 10(a)(1)(A) permit or a subpermit under the Regional blanket
permit. Since activities authorized under section 10(a)(1)(A) permits must
show an overall benefit to the recovery of the species in the wild, the
action is expected to trigger an "is not likely to adversely affect"
determination if no takings are Involved. As part of the proposed permit
action, section 10 biologists are to include appropriate conditions to
minimize incidental take while conducting permitted take activities, and to
spell out the use or disposition of any dead or injured specimens in a
manner which preserves their capability to be used in furtherance of
recovery activities. For example, if a researcher 1s surveying fish and
plans to collect 3 for genetic testing and a fish gets harmed during the
survey, that Injured fish should be collected and counted against the 3
permitted specimens to be collected; or injured and dead specimens may be
kept by universities or other appropriate parties for use in other recovery
research, thus reducing the need for additional take of the species for
these purposes.
A few applications will be for activities that do not clearly show benefit
to the species. The section 7 biologist needs to work directly with the
Regional permit staff and species experts during the informal consultation
phase. Only the Regional permit staff will work with the applicant to see
if the proposed activities can be modified or conditioned in a way that
reduces impacts and ensures benefit to the species. It is important not to
confuse the applicant and to keep a clean administrative record. If
additional information is needed from the applicant or if the applicant
needs to consider changing the proposal to answer a concern raised in the
consultation process, the Regional permit staff should contact the
applicant. This can be done by telephone, but needs to be followed with a
written confirmation. Applicants should be asked to amend their
application request in writing if the proposal is going to change.
2-3
-------
Endangered Species Consultation Handbook—November 1994
If the result of the informal section 7 consultation is that the proposed
activity "is likely to adversely affect," formal consultation is required.
If after working with the applicant the proposed activity will still not
provide a net benefit to the species, the permit applications should be
denied.
Consultations for actions covered by the Regional blanket permit may be
conducted on an individual subpermit, all anticipated activity for a given
species over the permit period, or programmatically on a group of related
species with similar recovery or research needs (e.g., freshwater mussels),
a group of species within a given ecosystem, or on implementation of
recovery plan tasks. All other section 10(a)(1)(A) permits probably will
have to undergo individual consultation.
Section 10(a)(1)(A) permits also are required:
o when a reasonable and prudent alternative calls for scientific
research that will result in take of the species;
o when the agency, applicant or contractor wishes to carry out
additional research not required by an incidental take statement;
and
o for species surveys associated with biological assessments (usually
developed during informal consultation) that result in take,
including harassment.
Habitat conservation planning - section lOfaHlHB)
Non-Federal parties planning activities that have no Federal nexus, but
that will result in the incidental taking of listed animals, may apply for
an incidental take permit under section 10(a)(1)(B). The application must
include a habitat conservation plan (HCP) laying out the proposed actions,
determining the effects of those actions on affected fish and wildlife
species and their habitats (often including proposed or candidate species),
and defining measures to minimize and mitigate adverse effects. While
HCP's are not required to cover listed and proposed plants, these species
must be considered during the section 7 consultation on the permit.
Applicants are encouraged to consider listed, proposed and candidate plants
for this reason.
The geographic area addressed in HCP's can be quite extensive and can
encompass sites addressed in other individual section 7 consultations.
Until the section 7 consultation on the section 10 application is
completed, the actions addressed in the HCP provide a good source of data
for the "cumulative effects" analysis of section 7 consultations.
In some HCP planning areas, parties may strive to find a Federal nexus to
avoid the lengthy HCP process. These parties should be advised of the
differences between incidental take capabilities under sections 7 and 10.
Section 10 expressly authorizes mitigation of adverse impacts (supplying
2-4
-------
Endangered Species Consultation Handbook—November 1994
some benefit to the species such as land acquisition or enhancement to
offset unavoidable effects of the action) that does not, in itself, reduce
take of the affected individuals. For incidental take considerations under
section 7, minimization of impacts on the individuals affected is required.
Thus, a proposal to secure and enhance alternative habitat may be
appropriate under section 10, but not under section 7 unless it (1) meets
the minor change rule and (2) most of the affected individuals can be
transplanted and expected to survive at the alternate location.
Transplantation has not been demonstrated to be effective 1n most cases.
This situation may be appropriate for red-cockaded woodpeckers that will
accept man-made nest cavities. However, transplantation will not work for
most birds with strong site fidelity, like the golden-cheeked warbler,
where take of the nesting tree effectively kills the pair that used that
site, or destruction of adjacent habitat can effectively take the species
by introduction of predators and cowbird parasitism.
Whenever practical, consideration should be given to programmatic or
ecoregion consultation with Federal agencies having major programs in the
HCP areas to facilitate overall consultation and recovery actions for the
species involved (see Handbook section 4.7(B)).
Experimental populations - section lOM)
Generally, within probable historic habitat, section 10(j) of the ESA
authorizes listed species to be released as experimental populations
outside their currently occupied range to further species conservation.
Before making that release, the Services determine by rulemaking whether
that population is "essential" or "nonessential". An "essential
experimental population" is a reintroduced population whose loss would be
likely to appreciably reduce the likelihood of the survival of the species
in the wild. A "nonessential experimental population" is a reintroduced
population whose loss would not be likely to appreciably reduce the
likelihood of survival of the species in the wild. For section 7
consultation purposes:
o any nonessential experimental population located outside a National
Park or National Wildlife Refuge System unit is treated as a
proposed species (conference may be in order);
o any nonessential experimental population located within a National
Park System or National Wildlife Refuge System unit is treated as a
threatened species (standard consultations are conducted);
o any essential population is treated as a threatened species
(standard consultations are conducted, but special rules may allow
take)
o critical habitat may be designated for essential experimental
populations, but not for nonessential populations (check
applicability of adverse modification analysis); and
2-5
-------
Endangered Species Consultation Handbook--November 1994
o experimental and nonexperimental populations of the species are
considered to be a single listed entity when making jeopardy
determinations or other analyses in a section 7 consultation.
A listed species that is reintroduced into its historic range without
experimental population status receives full ESA protection.
2-6
-------
Endangered Species Consultation Handbook—November 1994
2.2 COORDINATION WITH THE ACTION AGENCY AND APPLICANT
(A) Formal Consultations and Conferences
The ESA requires action agencies to consult with the Services when there is
discretionary Federal involvement or control over the action, whether
obvious (issuance of a new Federal permit), or less direct (State operation
of a program that retains Federal oversight, such as the National Pollution
Discharge Elimination System Program).
Formal consultation becomes necessary when: (1) the action agency requests
consultation after determining the proposed action may affect listed
species or critical habitat; or (2) the Services, through Informal
consultation, do not concur with the action agency's finding that the
proposed action is not likely to adversely affect the 1 listed species or
critical habitat.
An action agency shall confer with the Services if the action 1s likely to
jeopardize the continued existence of a proposed species, or destroys or
adversely modifies proposed critical habitat. The conference process helps
determine the likely effect of the proposed action and any alternatives to
avoid jeopardy or destruction or adverse modification of proposed critic?.1,
habitat.
When two or more Federal agencies are involved in an activity affecting
listed species or critical habitat, one agency is designated as the lead
(50 CFR §402.07), often based on which agency has the principal
responsibility for the project (e.g., a dam is maintained to provide a
power pool for generating electricity - a Federal Energy Regulatory
Commission (FERC) responsibility, but the capacity behind the dam also
provides flood storage - a Corps responsibility. In this case FERC has
lead for the consultation as the dam would probably not be there except for
the power generation need). Although one agency has lead, the other still
has to provide data for effects analyses and development of reasonable and
prudent alternatives and measures if its activities may affect listed
species or critical habitat.
(B) Conmitment of Resources during Consultation
'(d) After initiation of consultation required under subsection
(a)(2), the Federal agency and the permit or license applicant shall
not make any irreversible or irretrievable comitment of resources with
respect to the agency action which has the effect of foreclosing the
formulation or implementation of any reasonable and prudent alternative
measures which would not violate subsection (a)(2).'
Section 7(d) of the Endangered Species Act
Section 7(d), was added to the ESA in 1978 as part of the package that
created the exemption process. Congress intended this provision to avoid
future Tellico Dam scenarios by forbidding certain irreversible and
2-7
-------
Endangered Species Consultation Handbook—November 1994
irretrievable resource commitments during consultation, thus keeping open
all opportunities to develop reasonable and prudent alternatives.
Not all irreversible and irretrievable commitments of resources are
prohibited. The formulation or implementation of any reasonable and
prudent alternative must be foreclosed by the resource commitment to
violate section 7(d). Thus, resource commitments may occur as long as the
action agency retains sufficient discretion and flexibility to modify its
action to allow formulation and implementation of an appropriate reasonable
and prudent alternative. Destroying potential alternative habitat within
the project area, for example, could violate section 7(d).
This section 7(d) restriction remains in effect from the determination of
"may affect" until the action agency advises the Services which reasonable
and prudent alternative will be implemented 1f the biological opinion finds
jeopardy or adverse modification (Figure 2-1). Failure to observe this
provision can disqualify the agency or applicant from seeking an exemption
under section 7.
The action agency may choose not to implement the Services7 reasonable and
prudent alternative, developing instead one based on what they perceive as
the best available scientific and commercial data. The adequacy of the
agency's reasonable and prudent alternative 1s determined and documented by
the agency, and, if questioned, is judged under the Administrative
Procedure Act's "arbitrary and capricious" standard of review.
The Services do not provide an opinion on the question of resource
commitments. Under the exemption process, that question 1s ultimately
referred to the Endangered Species Committee for resolution. However, the
Services should notify Federal agencies of the section 7(d) prohibition
when formal consultation is necessary. Similarly, under section 7(c),
biological assessments must be completed for "major construction
activities" before any contracts are entered into or construction is begun.
2-8
-------
Endangered Species Consultation Handbook—Noveober 1994
Figure 2-1 Application of section 7(d): irreversible or irretrievable commitment of resources
I "May affect* situation exists; section 7(d)
formal consultation is required prohibition begins
II If:
A. The Services concur with a "not likely section 7(d)
to adversely affect" finding not applicable
B. The Services issue a no Jeopardy/adverse section 7(d)
modification biological opinion, or the action obligation expires
agency chooses a reasonable and prudent
alternative from the jeopardy/adverse
modification opinion
C. Action agency chooses to disagree
with the Services' Jeopardy/adverse
modification determination, or chooses
to implement an alternative that has not
been prescribed by the Services; and
1. The best available scientific section 7(d)
and commercial data supports not applicable
the agency decision
2. The action agency decision section 7(d)
is not justified by available applies
data
III Reinitiation of consultation is required section 7(d)
under 50 CFR §402.16 (Return to step II) applies
2-9
-------
Endangered Species Consultation Handbook—November 1994
(C) Dealing with Nonresponslve Agencies
Agencies that refuse to consult or confer
When an action agency disagrees or does not respond to the Services'
informal suggestions for consultation or conference, the Services send a
letter requesting the agency to initiate such action. The letter notifies
the agency of its responsibilities under the ESA, and presents a clear case
for the Services' determination of "may affect" for listed species or
"likely to jeopardize" for proposed species. Possible adverse nod1f1cat1on
of designated or proposed critical habitat is treated similarly. If the
agency still refuses to consult, the issue should be elevated to the
Regional Office. The Regional Director can pursue the need to consult with
the action agency.
The Services cannot force an action agency to consult. However, if the
proposed action is likely to result 1n take of a listed fish or wildlife
species, the matter should be referred to the Services' Law Enforcement
Division and the Office of the Solicitor. Additionally, 1f the action
agency requests consultation after-the-fact, that consultation cannot
eliminate any section 9 liability for incidental take that has already
occurred (Appendix D, Solicitor's opinion #S0-5).
Finally, the Services do not provide an opinion or conference report if the
agency has not identified a "may affect" situation already, as such an
opinion or report may be challenged as incomplete where no consultation
(discussion) with the agency took place. This guidance does not apply
where the Services and the action agency have an agreement on when
consultations will be conducted.
Agencies that refuse to reinitiate consultation
When consultation needs to be reinitiated but the action agency neither
agrees nor responds, the Services send a letter clearly outlining the
change of circumstances that supports the need for reinitiation. The
procedures outlined above apply here also.
(D) Compliance with Section 7(a)(2)
The action agency determines whether and how to proceed with its proposed
action in light of the Services' biological opinion, even though the terms
and conditions of incidental take statements are non-discretionary.
Nevertheless, the Services' biological opinion is entitled to great
deference by any reviewing court, and action agencies must give great
weight to the Services' biological opinion before deciding on a proposed
action. Failure to explain in the administrative record how the agency
addressed the Services' biological opinion could expose the action agency
to a judicial challenge under both the ESA and the Administrative Procedure
Act.
2-10
-------
Endangered Species Consultation Handbook—November 1994
Ho jeopardy and/or no adverse modification finding
The action agency may proceed with the action as proposed, provided no
incidental take is anticipated. If incidental take is anticipated, the
agency or the applicant must comply with the reasonable and prudent
measures and implementing terms and conditions in the Services' incidental
take statement to avoid liability from taking under the ESA.
Jeopardy/adverse modification finding
If a jeopardy or adverse modification determination results from the
consultation, the action agency may;
o adopt one of the reasonable and prudent alternatives for
eliminating the jeopardy or adverse aodlflcatlon of critical
habitat in the opinion;
o decide not to grant the permit, fund the project, or undertake the
action;
o request an exemption from the Endangered Species Committee
(Appendix H);
o reinitiate the consultation by proposing modification of the action
or offering reasonable and prudent alternatives not yet considered;
or
o choose to take other action 1f 1t believes, after a review of the
biological opinion and the best available scientific Information,
such action satisfies §7(a)(2).
The action agency must notify the Services of its final decision on any
proposed action that receives a jeopardy or adverse modification biological
opinion (50 CFR §402.15(b)).
Incidental take statements
Violation of the section 9 taking prohibition results in liability unless
the terms and conditions of the incidental take statement are followed.
The agency must undertake the required actions to minimize incidental take,
or require these actions as conditions of the permit or grant. The agency
must retain sufficient control over the implementation of these actions for
the exemption from the section 9 taking provisions to remain in effect;
otherwise, the incidental take statement may lapse, requiring the applicant
to seek an incidental take permit under section 10 for protection from
possible section 9 liability.
2-11
-------
Endangered Species Consultation Handbook--November 1994
(E) Role of the Permit or License Applicant
Identification of an applicant
The Services do not formally determine whether there is or who is an
applicant for a Federal agency action, although the regulations and their
preamble provide guidance. The Federal action, in this instance, is
approval of a permit or license sought by the applicant, together with the
activities resulting from such permission. The action agency determines
applicant status, including requests arising from prospective applicants 1n
early consultations. The action agency also determines how the applicants
are to be involved in the consultation, consistent with provisions of
section 7(a)(3), (b) and (c) of the ESA and the section 7 regulations.
Users of public resources (e.g. timber companies harvesting on National
Forests) are not parties to programmatic section 7 consultations dealing
with an agency's overall management operations or permitting program. They
may become applicants if they are a party to a discrete action (i.e., where
they are already the successful bidder on a timber sale that becomes the
subject of later consultation or reinitiation when a new species is listed
or new critical habitat is designated).
If an agency supports an "applicant" who does not meet the criteria
described above, the Services nonetheless should try to work with that
party, although the procedural opportunities afforded to applicants will
not app.ly to that party.
Applicant's role 1n the consultation process
If the Federal agency identifies an applicant, the Services meet their
obligations to that party as outlined in 50 CFR Part 402, which provide
opportunities for applicant involvement:
o the action agency is to provide an applicant an opportunity to
submit information for consideration during the consultation;
o the applicant must be informed of the estimated length of any
extension of the 180-day timeframe for preparing a biological
assessment, along with a written statement of the reasons for the
extension;
o the timeframes for concluding formal consultation cannot be
extended beyond 60 days without the applicant's concurrence;
o the applicant is entitled to review draft biological opinions
obtained through the action agency, and to provide comments
through the action agency;
o the Services will discuss the basis of their biological
determination with the applicant and seek the applicant's expertise
in identifying reasonable and prudent alternatives to the action if
2-12
-------
Endangered Species Consultation Handbook—November 1994
likely jeopardy or adverse modification of critical habitat is
determined; and
o the Services provide the applicant with a copy of the final
biological opinion.
The Services do not work directly with or take comments directly from the
applicant without the knowledge or consent of the action agency.
(F) Role of the Non-Federal Representative
Non-Federal representatives may be Involved in the Informal consultation
process and may request and receive species lists, prepare the biological
assessment, and provide Information for the formal consultation. However,
the Services require the action agency to formally designate the non-
Federal representative in writing. Moreover, the action agency must be
made aware that the ultimate responsibility for section 7 obligations
remains with the action agency.
2.3 FWS COORDINATION NITH THE NMFS
The NMFS is responsible for consultation on species under its jurisdiction.
Currently listed species that may require coordination with NMFS include
several whales, the Hawaiian monk seal, several runs of salmon 1n the
Northwest and California, the short-nosed sturgeon, and sea turtles while
in the water. Increasingly, consultations on Service-administered species
overlap with those administered by NMFS. In these instances the Service
should strive to coordinate informal and formal consultations with their
NMFS counterparts. When formal consultations also may affect species under
NMFS jurisdiction, the Service needs to remind the action agency, through
early correspondence and/or as a footnote to the formal consultation
package, of the need to consult with NMFS.
Coordination with NMFS is critical to ensure any reasonable and prudent
alternatives prescribed by the Services (e.g., the Central Valley Project
in California) are compatible. The terms and conditions of incidental take
statements must be compatible so the action agency can implement both
opinions without needing further consultation.
2-13
-------
Endangered Species Consultation Handbook—November 1994
2.4 COORDINATION WITH OTHER FEDERAL AGENCIES
Consultations with other Federal agencies follow 50 CFR Part 402, unless
counterpart regulations (explained in SO CFR §402.04) are approved for that
agency. Although no counterpart regulations have been issued to date,
field stations may consider entering into optional procedures that provide
better working relationships with other agencies at a local level
consistent with 50 CFR Part 402. For example, in the Southeast the Forest
Service wants a written record or determination of effects of their actions
on listed species so they have an understanding with local field offices
that concurrences will be provided even for beneficial activities. Other
agencies may wish to consult on all or a subset of their activities on a
local or regional programmatic basis.
Questions also arise about the relationship of section 7 to specific agency
programs:
Bureau of Indian Affairs (BIA): All actions funded, permitted, or
undertaken by BIA for the benefit of Indian tribes or other Native American
entitles will Involve BIA when Federal agency decisions or other actions
are required. The tribe/entity may serve as the designated non-Federal
representative or applicant, but does not have standing as a Federal agency
for consultation purposes.
Office of Hearings and Appeals (0HA1: A January 8, 1993, memorandum
(Appendix D) from the Secretary clarified that OHA has no authority to
review the merits of the Services' biological opinions. That review is
limited to the Federal courts.
Corps of Engineers (Corps). Bureau of Reclamation (Reclamation). Federal
Energy Regulatory Commission (FERC1: Ongoing operations, relicensing and
reauthorizations for water projects that predate the ESA are subject to
consultation if the agency retains any discretion in continuing project
operations.
Environmental Protection Agency fEPA): Programs delegated to States for
operation are subject to consultation at the time of delegation, and to
continuing review when EPA provides program oversight or funding.
Resolution Trust Corporation (RTC) and Federal Deposit Insurance
Corporation (FDIC): The Department of Justice has not determined whether
these are Federal agencies required to observe the Endangered Species Act
and other environmental laws. The Services have been advised not to enter
into formal consultation with RTC or FDIC until this issue has been
settled. Upon request, technical assistance may be provided on the
occurrence of listed, proposed or candidate species in their project areas.
Federal Emergency Management Agency (FEMA): All of FEMA's actions are
subject to the ESA, although the nature of some of their programs may call
for greater use of the emergency consultation process. Improving the
2-14
-------
Endangered Species Consultation Handbook--November 1994
Services' working relationships with FEMA counterparts can help develop
appropriate responses to categories of emergencies before a crisis occurs.
Housing and Urban Development (HUD): Most parties seeking HUD grants have
completed project planning before applying for the grant. Knowing early on
about developments being considered in a species' range can help with
project direction. If HUD monies are likely to be sought, the applicant
can be encouraged to use the early consultation process. If there is no
Federal nexus, a section 10(a)(1)(B) permit may be appropriate.
2-15
-------
Endangered Species Consultation Handbook—November 1994
2.5 COORDINATION WITH STATE AGENCIES
The Services' policy dated July 1, 1994, regarding the role of State
agencies in ESA activities calls for cooperation with States as follows:
The term State agency means any State agency, department, board,
commission, or other governmental entity that is responsible for the
management and conservation of fish, plant, or wildlife resources within a
State.
As part of the consultation program, it is the policy of the Services to:
o inform State agencies of any agency action that may affect listed or
proposed species or designated or proposed critical habitat (e.g.,
formal consultation), and request their information, including the
results of any related studies, 1n analyzing the effects of the action
and cumulative effects on the species and habitat.
o request an information update from State agencies prior to preparing
the final biological opinion to ensure that the findings and
recommendations are based on the best scientific and commercial data
available.
o recommend to Federal agencies that they provide State agencies with
copies of the final biological opinion unless the information related
to the consultation is protected by national security classification or
is confidential business information (see Handbook sections 4.7 and
4.8). Decisions to release such classified or confidential business
information shall follow the action agency's procedures. Biological
opinions, not containing such classified or confidential business
information, will be provided to the State agencies by the Services, if
not provided by the action agency, after 10 working days. The
exception to this waiting period allows simultaneous provision of
copies when there is a joint Federal-State consultation action.
2-16
-------
Endangered Species Consultation Handbook—November 1994
Exhibit 2-1 Discussion of species' tolerance to disturbance (fron the
draft management plan for the Pawnee montane skipper)
Populations in both the South and North Forks are needed to buffer against
a single event or combination of events eliminating the butterfly from one
of the areas. Only activities with negligible effects should be allowed
without limit, and those with moderate effects should be kept at or below
some reasonable upper limit. Activities with major effects should be
avoided altogether. Activities of varying impact have been identified as
fol1ows:
1. Activities with no effect or slight effect:
(a) activities on the water or on the water's edge would have
negligible effect on the skipper's habitat, including, but are not
limited to, fishing, boating, piers, and boat docks; and (b) rights-of-
way for power lines if less than 730 m, not treated with herbicides,
and if maintained for host and nectar plants.
2. Activities with moderate effects:
(a) campgrounds not located 1n the densest subpopulation areas (1-4),
not located in areas of major Liatris (principle food supply) density
(150+ flowering stems/acre), and without large areas covered with
parking lots, lawns, ball fields, or scraped areas. Campsites should
be widely spaced and heavy foot traffic should be confined to
designated paths; (b) narrow (1 lane with pullouts) paved or improved
roads that avoid areas of major Liatris concentrations, road verges and
adjacent berms and cuts should be managed to encourage growth of
skipper nectar plants, and adjacent "brown-out" herbicided strips
should be avoided; and (c) low density housing or commercial
development that results in an aggregate of 5 percent or less of the
suitable habitat of any subpopulations rendered unsuitable by roads,
structures, lawns, plantings, parking lots, or associated activities.
3. Activities with major effects:
(a) any activity or combination of activities that eliminates more than
5 percent of any subpopulation's habitat areas; (b) any habitat-
displacing activity located in an area of Liatris with 150 or more
flowering stems/acre; and (c) any activity or development that creates
large blocks of unsuitable habitat-- large paved parking lots, wide
paved roads with broad graveled shoulders and adjacent herbiciding,
wide power line rights-of-way treated with herbicides, subdivisions
with large lawns, cultivated plots, or heavily grazed habitat.
2-17
-------
Endangered Species Consultation Handbook--November 1994
CHAPTER 3 - INFORMAL CONSULTATION
3.1 THE INFORMAL CONSULTATION PROCESS
Although described as an optional process, most consultations are conducted
informally with the Federal agency, or a designated non-Federal
representative. Informal consultations:
o clarify whether and what listed, proposed, and candidate species or
designated or proposed critical habitats may be in the action area;
o determine what effect the action may have on these species or
critical habitats;
o explore ways to modify the action to reduce or remove adverse
effects to the species or critical habitats;
o determine the need to enter into formal consultation for listed
species or designated critical habitats, or conference for proposed
species or proposed critical habitats; and
o explore the design or modification of an action to benefit the
species.
When used in the context of consultation, the term "informal" suggests an
unstructured approach to meeting section 7 requirements. Such consultation
includes phone contacts, meetings, conversations, letters, project
modifications and concurrences that occur prior to (1) initiation of formal
consultation because adverse effects cannot be avoided or (2) Service
concurrence that formal consultation is not necessary. Participation in
informal consultation may include (1) the action agency, (2) the designated
non-Federal representative, (3) the applicant or permittee, or (4)
consultants working on behalf of any of the first three. Service
biologists may use informal consultations to encourage additional work to
document the species' status in the action area either to preclude or
provide the basis to initiate formal consultation.
While there is no overall timetable for informal discussions, timeframes
are established for individual elements of informal consultation (Figure 3-
1). Dialogue can continue as long as progress is being made.
See Exhibits 3-1 to 3-6 for examples of informal consultation
correspondence. Documentation of the steps in the process is essential to
its continued utility and success. The administrative file should contain
records of phone contacts, including name of the caller, the purpose of the
call as it relates to the proposed action or action area, and any advice or
recommendations provided by the Service biologist. Meetings can be easily
documented by letter to appropriate parties that summarizes the meeting
results, particularly any Service concerns and recommendations.
3-1
-------
Endangered Spectas Consultation Handbook--Noveober 1994
Figure 3-1 Infomal consultation process
Federal Action
Species present —
[TECHNICAL ASSISTANCE]
-+ No
-» End
Consultation
Yes
I
~
Major
Construction
Activity
No
[30 days
for the Service
to prepare
species list]
[180 days for
agency to
complete]
BIOLOGICAL -
ASSESSMENT
May -»
Affect
I
Yes
Options
No -» End
Consultation
Informal
discussions
between parties
[RESOLUTION]
[30 days for the Service
to respond to the agency
with biological
assessment finding]
Formal *-
Yes «-
Consultation
Likely to
Adversely
Affect
No —~ Service —~ End
CONCURRENCE Consultation
3-2
-------
Endangered Species Consultation Handbook—November 1994
3.2 IDENTIFICATION, RESOLUTION. AND CONSERVATION
Hany consultations can and should be handled informally. This gives the
Services an opportunity to be involved early and to resolve problems as
they come to light.
Informal consultation determines the likelihood of adverse effects on a
listed species or critical habitat. Informal consultations (1) identify
adverse effects and suggest ways to avoid them, (2) resolve project
conflicts or differences of opinion between the Services and the action
agency or applicant as to the nature and extent of adverse effects, (3)
provide the action agency with opportunities to carrying out conservation
activities pursuant to section 7(a)(1), and (4) help monitor cumulative
effects on a species or ecosystem.
Service biologists must be well informed about species status,
distribution, threats, and recovery objectives to carry out the informal
consultation process effectively. The logical place to start data
gathering is the field station's species files. Other reliable sources are
State F1sh and Wildlife agencies, Federal land management agencies, State
Natural Heritage Programs, species experts, cooperative research units,
recovery teams, The Nature Conservancy, and private consultants. All may
provide or verify information, and should be used as needed.
Conflict resolutions during informal consultation may involve changes in
construction scheduling, engineering design, pesticide formulation or
application method, location, emission or discharge levels and many others.
All possible options to eliminate adverse effects should be discussed
freely with the action agency, and they should be encouraged to recommend
their own. The Services do not offer "may affect" determinations unless
the project's dimensions are clearly defined at the informal stage.
Finally, informal consultation offers action agencies an opportunity to
address their conservation responsibilities under section 7(a)(1).
Recovery plans often identify tasks benefiting listed species that may be
carried out on or near the project site. Examples include habitat
protection, modification or improvement; predator control; and survey work.
3.3 TECHNICAL ASSISTANCE
A telephoned or written inquiry about the presence or absence of listed
and/or proposed species in a project area usually initiates informal
consultation. Service biologists may respond in many ways. If species are
not likely to be present, the consultation requirement is met, and the
Services may advise the agency, applicant or consultant of this in writing.
If historical records or habitat similarities suggest the species may be in
the area, then some survey work may be recommended to make a more precise
determination. If the species is definitely in the project area, but the
Services determine it will not be adversely affected, the Services may
notify the agency of that finding (e.g., bald eagles fly over but do not
feed, roost, or nest in the area, and are not expected to be adversely
3-3
-------
Endangered Species Consultation Handbook--Novemfaer 1994
affected).
Technical assistance from the Services may take a variety of forms. It
includes Information on candidate species as well as names of contacts
having information on State listed species. The Services may provide
correspondence to State agencies or other Service offices to alert them to
a project (Exhibit 3-2).
The Services may recommend that the action agency conduct additional
studies on species' distribution in the area affected by the action.
Normally, Service biologists only request additional survey work, but
sometimes monitoring impacts of the action on aspects of the species' life
cycle may be agreed upon during informal consultation. Monitoring may be
recommended when incidental take is not anticipated but might possibly
occur, thus triggering the need for project changes or formal consultation.
The action agency has no legal obligation to conduct or pay for these
studies, but Service biologists should point out the advantages of doing
them during Informal consultation, particularly 1f the data gathered may
preclude formal consultation.
While candidate species have no legal protection, Service biologists should
notify agencies of candidates in the action area and may recommend ways to
reduce adverse effects and/or request studies as appropriate. Legally, the
action agency does not have to comply. However, candidate species,
particularly category 1 species, are likely to be listed soon, possibly
making conference imminent. Category 2 candidate species, while less
likely to be addressed promptly, should still be brought to the agency's
attention. Here also, biologists should try to reduce adverse effects or
encourage further studies, generally as conservation recommendations.
Addressing candidates at this stage of consultation provides a focus on the
overall health of the local ecosystem.
At this time, only technical assistance can be provided to the Resolution
Trust Corporation and the Federal Deposit Insurance Commission, as their
status as Federal agencies subject to the ESA is still in question.
Similarly, only technical assistance can be provided to agencies conducting
actions outside the United States (e.g., in northern Mexico), but knowledge
of such actions can be considered in the 'status of the species" analysis
if contiguous populations of the species (e.g., Mexican spotted owl) that
extend across the border are important to the survival and recovery of the
species.
3-4
-------
Endangered Species Consultation Handbook—November 1994
3.4 BIOLOGICAL ASSESSMENTS
"(c)(1) To facilitate compliance with the requirements of subsection
(a)(2) each Federal agency shall . . . request of the Secretary
information whether any species which is listed or proposed to be
listed may be present in the area of such proposed action. If the
Secretary advises, based on the best scientific and commercial data
available, that such species may be present, such agency shall conduct
a biological assessment for the purpose of identifying any endangered
species or threatened species which is likely to be affected by such
action. Such assessment shall be completed within 180 days after the
date on which initiated (or within such other period as is mutually
agreed by the Secretary and such agency, except that if a permit or
license applicant is involved, the 180-day period may not be extended
unless such agency provides the applicant, before the close of such
period, with a written statement setting forth the estimated length of
the proposed extension and the reasons therefor) and before any
contract for construction is entered Into and before construction is
begun with respect to such action. Such assessment May be undertaken
as part of a Federal agency's compliance with the requirements of
section 102 of the National Environmental Policy Act of 1969 (42 U.S.C.
4332).
(2) Any person who may wish to apply for an exemption under
subsection (g) of the section for that action may conduct a biological
assessment to identify any endangered species or threatened species
which is likely to be affected by such action. Any such biological
assessment must, however, be conducted in cooperation with the
Secretary and under the supervision of the appropriate Federal agency."
Section 7(c) of the Endangered Species Act
By regulation, a biological assessment is prepared for "major construction
activities" considered to be Federal actions significantly affecting the
quality of the human environment as referred to in the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). A
biological assessment is required if listed species or critical habitat may
be present in the action area, and is optional if only proposed species or
proposed critical habitat is involved. An assessment also may be
recommended for other activities to ensure the agency's early involvement
and increase the chances for resolution during informal consultation.
If a biological assessment is required, formal consultation cannot be
initiated until the biological assessment is completed. Some agencies
submit an assessment early, benefitting from the informal consultation
process; some need to be advised to do so. When Service biologists advise
an action agency of the need for a biological assessment, the letter should
indicate the importance of completing the assessment before letting
contracts or beginning construction.
Either the applicant or a non-Federal representative (often a consulting
firm) prepares the biological assessment, though the action agency takes
3-5
-------
Endangered Species Consultation Handbook—Novcnber 1994
responsibility for the findings of effect. The contents of the assessment
are discretionary, but generally include results of on-site inspections
determining the presence of listed or proposed species, an analysis of the
likely effects of the action on the species or habitat based on biological
studies, review of the literature, and the views of species experts. The
assessment also describes any known unrelated future non-Federal activities
("cumulative effects") in the action area likely to affect the species.
Sometimes information in other environmental analysis documents can
substitute or be easily modified to produce the assessment.
The biological assessment should address listed and proposed species 1f the
proposed action is likely to affect them both. Such an assessment may help
determine the need for conference as well as formal consultation. A
biological assessment may be prepared (50 CFR §402.12(b)(1)) 1f it appears
the agency or the applicant may wish later to seek a permanent exemption
from the Endangered Species Committee.
The agency is not required to prepare a biological assessment for non-
construction activities but, if a listed species or critical habitat is
likely to be affected, the agency must provide the Services with an account
of the basis for evaluating the likely effects of the action. The Service
uses this documentation along with any other available information to
decide if concurrence with the agency's determination is warranted. For
projects not involving major construction nor requiring an assessment, the
Services may still work informally with the agency to eliminate adverse
effects.
Sometimes, biological assessments are confused with environmental
assessments. The contents of biological assessments prepared pursuant to
the ESA are largely at the discretion of the action agency although the
regulations provide recommended contents (50 CFR §402.12). Biological
assessments are not required to analyze alternatives to proposed actions.
However, environmental assessments prepared pursuant to NEPA determine the
necessity of environmental impact statements. An alternatives analysis is
often pivotal to that determination.
3-6
-------
Endangered Species Consultation Handbook--November 1994
3.5 CONCURRENCE/NONCONCURRENCE LETTERS
Following review of the biological assessment or other pertinent
information, another informal effort may be appropriate to try to eliminate
any residual adverse effects. If that effort results in elimination of
potential impacts, the Services concur in writing that the action, as
revised and newly described is not likely to adversely affect listed
species or designated critical habitat. Since concurrence depends upon
implementation of the modifications, the concurrence letter must clearly
state any modifications agreed to during Informal consultation. If
agreement cannot be reached, the agency 1s advised to initiate formal
consultation.
When the biological assessment or other information indicates no likelihood
of adverse effect, the Services provide a letter of concurrence, which
completes informal consultation. This analysis, based on review of all
potential effects, direct and Indirect, Is documented 1n the concurrence
letter. If the nature of the effects cannot be determined, benefit of the
doubt is given to the species. Do not concur in this Instance. After
evaluating the potential for effect one of the following determinations is
made:
Listed species/designated critical habitat
o No effect - the appropriate conclusion when the action agency
determines its proposed action will not affect a listed species or
critical habitat.
o Is not likely to adversely affect - the appropriate conclusion when
effects on the species or critical habitat are expected to be
beneficial, discountable, or insignificant. Beneficial effects
have contemporaneous positive effects without any adverse effects
to the species or habitat. [See page 2-3 for discussion of benefit
for section 10(a)(1)(A) permits.] Insignificant effects relate to
the size of the impact (and should never reach the scale where take
occurs). Discountable effects are those extremely unlikely to
occur. Based on best judgment, a person would not: (1) be able to
meaningfully measure, detect, or evaluate insignificant effects; or
(2) expect discountable effects to occur.
o Is likely to adversely affect - the appropriate conclusion if any
adverse effect to listed species or critical habitat may occur as a
direct or indirect result of the proposed action or its
interrelated or interdependent actions. In the event the overall
effect of the proposed action is beneficial to the listed species
or critical habitat, but also is likely to cause some adverse
effects, then the proposed action "is likely to adversely affect"
the listed species or critical habitat. An "is likely to adversely
affect" determination requires formal section 7 consultation.
3-7
-------
Endangered Species Consultation Handbook--Hoveraber 1994
Proposed species/proposed critical habitat
A fourth finding 1s possible for proposed species or proposed critical
habitat:
o Is likely to jeopardize/adversely aodify proposed species/critical
habitat - the appropriate conclusion when the action agency or the
Services Identify situations 1n which the proposed action 1s likely
to jeopardize the proposed species or adversely modify the proposed
critical habitat. If this conclusion is reached, conference is
required.
3-8
-------
Endangered Species Consultation Handbook—Novaiber 1994
Exhibit 3-1 Example of a species 11st
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Ecological Sen/ices
c/o CCSU, Campus Box 338
6300 Occtn Drive
Corpus ChriKi. Texas 78412
December 18, 1991
United Gas Pips Line Company
P.O. Box 4085
VieterUi Texae 77903-4085
Consultation No. 2-11-92-1-056
Dear
This reeponda to your letter dated Hovember 19, regarding the effects of the
propoaad replacement of sections of pipe on apeciea Federally liatad or proposed
for Hating as thraatanad or endangered occurring in Goliad County, Texas. la
addition your project waa evaluated with respect to wetlanda and other important
fish and wildlife habitat.
It la our understanding that tha propoaad proj-ict would involve tha replacement
of fiva (5) sections of B" pipa totaling 119 faat. Associated construction
activities would bo within tha existing right-of-way locatad In tha Cabaaa Creek
Field. Thia project ia intended to maintain afficxant operations of Onitad's
pipalina systsm.
Our data indicates that tha following apaciaa may occur in tha area:
Attwater's prairie chicken (Tympanuchus euoido artwatari) - I
bald eagle (Haliaeetua leucocepnalua) -' I
Candi«*-.te category 2 species are those for which available information indicates
that proposing to liet aa endangered or threatened is possibly appropriate, but
substantial data on biological vulnerability or threats are not currently known
to support the imodiate preparation of listing rules. Tha following Candidate
Category 2 species may occur in tha projeet areai
Gulf coast hog-nosed akunk (Conepatus leuconotus texenais) - C2
long-billed curlew (Kuasnlus aaericanus) - C2
Runyon'a water-willow.(Justlcia runyonil) - C2
Texas horned llsard (Phrynosoma comutua) - C2
Welder apina aster (WachaarantT>ara~Reterocarpa) - C2
Our data indicate that Pederally listed species are not likely to bo impacted by
the proposed project action. With respect to wetlands and other important fish
and wildlife habitat, it appears that tha propoaad action will not significantly
impact these resources. If project plana change or portiona of tha propoaad
project were not evaluated, it ia our reeoansndation that the changes be
submitted for our review.
3-9
-------
Endangered Species Consultation Handbook-~Novenber 1394
Exhibit 3-2 Example of 6 need for survey
Stone £ wabstar Envirarraental Services
345 Suwar Stmt
Bmtm, Mimiiii-tiiiiiittH 02210
January 26, 1993
fiii® regpcnda to your letter dated 0w»rt.wi 38, 1993 requasttag lnfi.amt.lcn
on the limwii of Federally listed and mfanjiad or threatmed
in relation to the yu^rmA Jtertland, Maine to Omada Natural Gas
Pipeline £cc the Portland Natisml Gae ttsnwiaelnn .flywft.
Band cn intention aurrantly awwilahle to us, the Pertarany listed
the tans %4iieSi tin iiryi-i*
11 miiiiilamliii lira* soy pan. lhe nail tfcarled rnpmla crrure taotb la
fairly yewg fmugta and in wearing Rande. aithrngh varying in their
aa^jositicn, tte Trlxifrt-daclrtima or Mnd-rtiiriitonim/conil'aitjus forests in
iiiieti tin mil tocrled pogmia grow arm gnrally in wart or
thirt^fiuwth hi i ¦imiliml stages. lhe agn of the olrtwr tme fnnaing the
canopy at mam of the sitao bas bean anH start to be about 75 years odd in
Maw Bnpshlse.
lbs soil in ubi* tba ahallcMly-cootsd anall ttarlad pogoiia gran is
usually owned with leaf llttK. 9m substrata in which it is rooted say
be a variety of diffasart taac&urca, Cm exbaaely stay glsrrlnl till, to
staie-fin sandy Ions, to stnUe diff. Iha inniii soil factor at sost
sitae is the higUyarlrtlr, lutrlsnt-fBor quality of the soil in nfcieh this
grow.
diaracnrlBtlaB. tn*s«|RincJui^'arUy aparsa to auJaate ground omar in tte
aienbabitat of the otrtilrta (aoapt ttan encng farm), a relatively cpan
undaratay canopy, and imani—s to logging roads, atrna, cr otbar fsatama
that areata long persisting tnaks In the forest canopy. (or eweyla. in
Netr Hszprtxine, the nail tfcorled pagania bee baan fond growing in and
adjamiiL to racantly abandoned. abr>« grand telaphane traneeiasim Ujbb.
Inanuch as distributional inferaatirn on eary rare sparias is incomplete or
ispradsa, it is not currently ponlble to pscwida a dafinitiw finding
relative to nail ttarlad [wjcnih occwxanca in the jxojcct araa.
Therefore, in situations such as this, ttiere an anlanjarwd species is tarcun
to occur in habitats neaxby, a qiwliflari botanist should eurwey the
following priyMiml aligrinants prior to construction activities: aligrnsit
sections with corresponding nsabers 11-20 (no Figure identified) and No. a
37 - 39 (Fig. 35). A survey for the nail whorled pogenia should be
conducted by a botanist familiar tilth this apacies and shriiM occur in July
or August to ensure best survey conditions.
3-10
-------
Endangered Species Consultation Handbook--Kovwtier 1994
In addition far the potential of snail wheeled papulaticre occurring
within the ptuject area, the Federal candidate Category 21 species, the
variable sedge toartat polv^TrrtTfl^ is kmn to occur at several location;
near Portland, ttiile Federal candidate epecies are not affccded protection
under the ftriangered Species Act, the U.S. Flab and Wildlife Service
encourages their consideration In envirainental planning. If unnecessary
ispacts to candidate g^ecies can be avoided, the likelihood that they will
require the protection of the Act in the future is reduced. We wummt)
that the aligraent in the vicinity of Portland and Ffclnouth be eurvqnad for
the variable sedge.
One portion of the prcposad alignnent near WHloughby, VerauTt (Figure 11)
passes within five Biles of a nest site of the Federally listed endangered
peregrine falcon • Homvor, based en the puj^iuued
project's distance frcn the nest (appratiflBtely 5 Biles), we do not expect
any to occur to the resident peregrine falcons.
No other Federally H chert or pu'|.uued threatened and endangered f—
under the jurisdiction of the U.S. Fiah and Wildlife Service are known to
occur in the project area, with the ecceptjjci of occasional transient
For furttw information about or assistance with surveys for the seall
wheeled pngmla or the variable sedge, we suggest that you Join
AUtri£it, Maine ltatural Ba.itaja Piuylaa, State House Station 130, Augusta,
Maim 04333, 207-289-6800.
Pleese notify this office with the results of any surveys for ths Mall
whorlad pogenia or the variable sedge, so that we aey detcraine r
there sey be any itiwrte to these species. A list of Federally designated
endangered and tlueaLawd apecies in Maim, New Haspshire and Verxcnt is
included for your infrrmHrn. Thank you for your ~r\-n fit In and please
contact AHUUM of this office at (603) 225-1411 fa: further
coordination regarding this project.
3-11
-------
Endingarad Spec las Coniultatton H*ndboofc--Nov«ab«r 1994
Exhibit 3-3 Example of b no effect response -
United States Department of the Interior
FISH AND WILDLIFE SERVICE
New England Field Offices
400 Ralph Pill Marketplace
22 Bridge Street, Unit #1
Concord, New Hampshire 03301-4901
RE: Natiovide Wetlands Permit
Dretoee island, Mills, Maim
Jteary 20, 1993
Roaring Brook Consultants
15 7—ill 1 Aoai
South Berwick, Maine 03908
DHrmiB:
He have xsviswad your request for inCorgntion en endangM.ad and tiu.eaUa>eJ
apeciss and their habitats for th> above referanoad project, ma Federally
listad threatened piping plow (Cheradrlus aalodUs) is loom to occur en
Laudtela Beech, neer the proposed project. Hsumt, beeed cn the project
deesiption and location, it appears ttet no jj^wrts to Federally listed
species will ooBur. frmnlrt jaujut plans daap, or if acklitianal
intention en the disttributtion at listad car proposed ¦p-'** becnes
available, ttais dstsrninatlcn say bs reconsidered.
ttiile it^^nBtrwrrilpad for your Federal peoanit, w ug^ut tbat you
aontact *i» itttunl Hailtaja Puijmw, State Bouaa S&ticn
130, Augusta, Maine 04333, 207-289-€800 far infcraatim an state listed
species tha*r. asy be peasant.
A list at Federally designated endangered and threatened series in Mine is
inclosed for your infacsBtion.
Sincerely yours.
Xnelaaure
3-12
-------
Endangered Species Consultation Handbook--Novcofeer 1994
Exhibit 3-4 Example of a concurrence letter -
tUMgtr-COMtruetlon Applications
Columbia Oas Transmission Corporation
Post Offics Box 1273
Charleston, wv 2S32S
R01 Blanket clearance for minor
construction projects
D«ar <
This responds to your request of November 18, 1992, for our concurrence
with your approach to handling endangered species review of minor
construction projects falling into the following categories specified in
your letter1
Construction, abandonment, or relocation of points of delivery
(PODs).. He understand to establish a new MO, an existing pipeline
is tapped at a point along a previoualy disturbed and maintained
Right-Of-Way (ROW), and no more than 20 feet of email diameter pipe
ia installed. Limited aboveground facilities such as valves,
separators, meters and small shelters may also be installed. To
relocate or abandon a POO. an existing pipeline is cut and capped
adjacent to the existing pipeline as previously described at a
different location.
2. Construction and/or maintenance projects within existing, previously
disturbed, and generally fenced compressor and measuring £ regulatory
(KSR) stations.
3. Construction and/or maintenance projects along existing, previously
disturbed and maintained ROW. He understand from your letter that
these minor projects are less than 100 feet in length and include
projects for erosion and sedimentation control, cathodlc protection
installations and repairs to or replacement of facilities.
we concur that the types of activities deeeribed above will not adversely
affect endangered or threatened species. Therefore, no Biological
Assessment or further Section 7 consultation pursuant to the Endangered
Species Act of 1973 is required with the Pish and Wildlife Service for
these particular activities. Should additional information on listed or
proposed species become available, this determination may be reconaidered.
The above comments are provided in accordance with the Endangered speclM
Act (87 Stat. 884, at amended; 16 U.S.C. 153^. f£ seo. \. Our comments
regarding compliance with the Fish and Wildlife Coordination Act (48 Stat.
401, ae amended; 16 O.S.C. 661 si ££S*)> *nd the Migratory Bird Treaty Act
(40 Stat. 755, as amended; 16 U.S.C. 703 et seo.) were provided in our
letter of February 11, 1992. Thoee comment* remain valid.
He appreciate your conecientious efforts to comply with Federal
requirements. If you have any questions regarding this letter, pleaee
contact at (410) 269-5448.
3-13
-------
Endangered Species Consultation Handbook—Novcober 1994
Exhibit 3-5 Example of a nonconcurrence letter
United States Department of the Interior
FISH AND WILDLIFE SERVICE
ChnepMka Bey Field Office
1825 Vbgrta Street
ArafsSifmf,40t
District Engineer
Baltimore District. Corps of Engineers
Post Office Box 1715
Baltimore. Maryland 21203
RE: Endangered Species Act concerns
relative to CENAB-OP-RP (CHESAPEAKE
BEACH. TOWN OR90-04126-1
Dear'
We are writing to express our concerns regarding impacts of the referenced project
on the Federally threatened Puritan tiger beetle (Cicindela punrann). Our comments
are provided in accordance with Section 7 of the Endangered Species Act (87 stat.
884 as amended; 16 U.S.C. 1531 fijaflg.).
The project involves construction of a stone revetmc.1t and wooden walkway along
the Chesapeake Bay at the Town of Chesapeake Beach a short distance north of a
bayside cliff that supports a Puritan tiger beetle population. This population
represents the northern limit of this beetle on the western shore of the Chesapeake
Bay. In 1991. The Corps initiated informal consultation with the Service to
determine whether the revetment/walkway project, due to its potential for
increasing public access to tiger beetle habitat, might ad 'ersety affect the Puritan
tiger beetle. As a result of the informal consultation process, it was agreed that
the Tow would construct and maintain a chain link fence at the northernmost limit
of the cliffs supporting this threatened species. The fence was to be tied in to the
cliff face . nd to extend 30 feet channelward of mean high water. The Service
concurred hat such a fence would decrease public access to the tiger beetle cliffs
sufficiently to compensate for the increase in human use of the beach area, thus
resulting in a net "no effect" to the beetles. The permit, issued May 14. 1991,
was conditioned upon the construction arid maintenance of this structure.
On December 15, 1992. we received information from your office indicating that
the applicant had reauested permission to re-locate the fence some 400 feet to the
south of the originally proposed location. On January 7. 1993. the project location
was inspected by endangered species biologist from our office.
(mof your staff, and HBHi of the Maryland Natural Heritage
Program. The fence had been constructed at the revised location, leaving a 400
3-14
-------
Endangered Species Consultation Handbook—Novanber 1994
foot section of cliff that is potential Puritan tiger beetle habitat on the public access
side of the fence. Due to this change in the project, we can no longer concur with
the "no effect" determination. In order to ensure compliance with the Endangered
Species Act. we suggest one of the following courses of action be taken:
(a) The applicant should move the fence to the location specified in the
existing permit. Compliance with this original permit condition would satisfy
the previously established criterion for "no effect" and would conclude the
consultation process for this project.
(b) Alternatively, the Corps should re-examine the project in its present form
to determine whether it may affect any endangered or threatened species. If
the possibility of an effect cannot be eliminated, the Corps is required to
initiate formal consultation with the Service.
If you have any questions regarding this project, please contact ®t
the above address, or by telephone at (410) 269-5448. Thank you foi your
cooperation in the effort to protect endangered and threatened species.
3-15
-------
Endangered Species Consultation Henctoook~*ova*er 1994
CHAPTER 4 - FORMAL CONSULTATION
'Each Federal agency shall, in consultation with and with the assistance
of the Secretary, insure 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 habitat of such species which is
determined...to be critical.... In fulfilling the requirements of this
paragraph each agency shall use the best scientific and commercial data
available.'
Section 7(a)(2) of the Endangered Species Act
4.1 THE FORMAL CONSULTATION PROCESS
Formal consultations determine whether a project is likely to jeopardize the
continued existence of a listed species (jeopardy) or destroy or adversely modify
critical habitat (adverse modification) (Figure 4-1). Formal consultations
perform several other functions: they (1) identify the nature and extent of the
effects of Federal (agency) actions on listed species and critical habitat, (2)
identify reasonable and prudent alternatives, if any, when an action is likely
to result in jeopardy or adverse modification, (3) may eliminate the liability
of action agencies for "take" under section 9 of ESA, (4) require the
implementation of reasonable and prudent measures to minimize the impacts of
incidental take to listed species, (5) identify ways the action agencies can help
conserve listed species or critical habitat when they undertake an action, and
(6) provide an administrative record of effects on species that can help
establish the species' environmental baseline 1n future biological opinions.
If an action agency determines a proposed action "may affect" listed species or
critical habitat, formal consultation is conducted. An exception occurs when all
adverse effects have been avoided. Formal consultation is unnecessary if the
proposed action is not likely to adversely affect listed species or critical
habitat (Chapter 3). When action agencies request formal consultation on actions
not likely to adversely affect listed species or designated critical habitat, the
Services provide that consultation.
4-1
-------
Endangered Species Consultation Handbook—fcinedjar 1994
Figure 4-1. Formal consultation process
May affect
(determined by
action agency)
-OR-
ls likely to adversely
affect (determined
through Informal
consultation)
Request to Initiate consultation
—~ (from action agency) •*—
Information complete
90
days
Yes, consultation
clock running from
date of receipt.
No, request missing §402.14(c)
data within 30 working days.
Clock begins on receipt of
data or notice from agency
that data are not available.
Formulation of biological opinion
and Incidental take statement
(90 days)
45
days
Review of draft by action agency and/or
applicant, 1f requested
Delivery of
biological opinion and
Incidental take statement
4-2
-------
Endangered Species Consultation Kandwofc—Bortsd&er 1994
4.2 INITIATING FORNAL CONSULTATION
Action agencies initiate formal consultation through a written request to the
Services. To comply with the section 7 regulations (50 CFR §402.14(c)), this
request must include all of the following:
o a description of the action being considered;
o a description of the specific area that may be affected by the
action;
o a description of any listed species or critical habitat that may be
affected by the action;
o a description of the manner 1n which the action may affect any
listed species or critical habitat, and an analysis of any
cumulative effects;
o relevant reports, including any environmental impact statements,
environmental assessments, or biological assessment prepared on the
proposal pursuant to section 7(c) of E5A; and
o any other relevant studies or other information available on the
action, the affected listed species, or critical habitat.
Vlhen dealing with a project Involving an EIS, 1t is desirable to conduct
consultation at the draft stage when the preferred alternative 1s more likely to
be known.
The action agency can initiate formal consultation on a number of similar actions
within the same geographic area (Programmatic consultation, section 4.7) or a
portion of a comprehensive plan (Incremental steps, section 4.4(B)), as long as
the effects of the entire action are considered. Any information provided by an
action agency must represent the best scientific and commercial data available.
4.3 EVALUATING INITIATION PACKAGES
An action agency's package initiating consultation needs to be reviewed
inmediately to determine if (1) all of the information required by the
regulations has been provided, and (2) that information represents the best
scientific and commercial data available. The "other relevant information"
requirement gives the Services an opportunity to determine what project-specific
information is needed to develop the biological opinion.
4-3
-------
Endangered Species Consultation Handbook—ftoMaber 1994
4.4 FORMAL CONSULTATION PROCEDURES
(A) Time frames for Formal Consultation
"(1)(A) Consultation under subsection (a)(2) with respect to any agency
action shall be concluded within the 90-day period beginning on the date
on which initiated or, subject to subparagraph (B), within such other
period of time as is mutually agreeable to the Secretary and the Federal
agency;
(B) in the case of an agency action involving a permit or license
applicant, the Secretary and the Federal agency may not mutually agree to
conclude consultation within a period exceeding 90 days unless the
Secretary, before the close of the 90th day referred to in subparagraph
(A) -
(i) If the consultation period proposed to be agreed to will end
before the 150th day after the date on which consultation was
initiated, submits to the applicant a written statement setting
forth -
(I) the reasons why a longer period is required;
(II) the information that is required to complete the
consultation; and
(III) the estimated date on which consultation will be
completed; or
(11) if the consultation period proposed to be agreed to will end
ISO or more days after the date on which consultation was initiated,
obtains the consent of the applicant to the extension."
Section 7(b) of the Endangered Species Act
Section 7 regulations require formal consultation be concluded within 90 days of
Initiation, and the biological opinion delivered to the action agency within the
next 45 days. The Services strive to Issue all biological opinions within the
90 day period; however, the Regional Director may use the additional 45 days when
circumstances warrant.
Formal consultation is "Initiated" on the date the request 1s received, if the
action agency provides all the relevant data required by 50 CFR §402.14(c).
Within 30 working days, the Services provide written acknowledgement of the
consultation request, advises the action agency of any data deficiencies, and
requests either the missing data or a written statement that the data are not
available. (Exhibits 4-1 and 4-2 are examples of letters with and without all
required data.)
During the initial 90-day formal consultation period, the Services may meet or
communicate with the action agency and an applicant, 1f any, to gather any
additional information necessary to conduct the consultation. The 90-day period
should be used to:
4-4
-------
Endangered Species Consultation Handbook—lovoter 1994
o assess the status of the species Involved;
o determine the scope of the proposed action, which includes
Identifying the area likely to be affected directly and indirectly
by the proposed action, and cumulative effects;
o Identify adverse effects likely to result in jeopardy to the species
and/or adverse modification of critical habitat;
o develop reasonable and prudent alternatives to an action likely to
result in jeopardy or adverse nodification;
o identify adverse effects not likely to jeopardize listed species,
but which constitute "take" pursuant to section 9 of ESA;
o develop reasonable and prudent measures and terms and conditions for
the incidental take statement as appropriate; and
o Identify conservation recommendations, as appropriate.
These actions should be undertaken cooperatively with the action agency, thus
allowing the Services to develop a better understanding of direct and indirect
effects of a proposed action and any cumulative effects 1n the action area.
Action agencies also have the project expertise necessary to help identify
reasonable and prudent alternatives and reasonable and prudent measures. These
cooperative efforts should be documented for the administrative record.
The Regional Director ensures the biological opinion and incidental take
statement are prepared and delivered within 135 days of initiation of formal
consultation. The consultation timeframe cannot be "suspended." If the Services
needs more time to analyze the data or prepare the final opinion, or the action
agency needs time to provide data or review a draft opinion, an extension may be
requested by either party. Both the Services and the action agency must agree
to the extension. Extensions should not be indefinite, and should specify a
schedule for completing the consultation. If an applicant is involved in the
project, extension must follow the procedures outlined by section 7(b)(1)(B) of
ESA (Exhibit 4-3).
Ho final opinion will be issued before the 135th day if the action agency is
still reviewing the draft. Once the Services receive comments on the draft, the
biological opinion is finalized and delivered to the action agency and applicant,
if any. If comments on the draft opinion result in major changes or
clarifications, the Services can seek an extension. When the Services have not
received the agency's comments by the 125th day, the Services check with the
action agency (by telephone or in writing) to negotiate an extension. If the
Services receive the comments of the action agency less than 10 days before the
end of the established deadline (135 days or as established by an agreed upon
extension), the Services are automatically entitled to a 10 day extension of that
deadline to deliver the opinion.
4-5
-------
Endangered Species Consultation Handbook—Hovtadxsr 1994
Example of a letter sent to Inform action agencies the Services have received a
complete initiation package and will begin formal consultation on a proposed
action.
Dear
This letter acknowledges the U.S. Fish and Wildlife Service's (Service) [date of
receipt of letter initiating consultation] receipt of your [date of agency's
initiating letter] letter requesting initiation of formal section 7 consultation
under the Endangered Species Act. The consultation concerns the possible effects
of your proposed [name and location of the action] on [name of listed species
and/or critical habitats affected].
All Information required of you to Initiate consultation was either included with
your letter or 1s otherwise accessible for our consideration and reference. We
have assigned log number [log number] to this consultation. Please refer to that
number 1n future correspondence on this consultation.
Section 7 allows the Service up to 90 days to conclude formal consultation with
your agency and an additional 45 days to prepare our biological opinion (unless
we mutually agree to an extension). Therefore, we expect to provide you with our
biological opinion before [date 135 days after receipt of initiation request].
As a reminder, the Endangered Species Act requires that after Initiation of
formal consultation, the Federal action agency make no irreversible or
irretrievable commitment of resources that limits future options. This practice
insures agency actions do not preclude the formulation or implementation of
reasonable and prudent alternatives that avoid jeopardizing the continued
existence of endangered or threatened species or destroying or modifying their
critical habitats.
If you have any questions or concerns about this consultation or the consultation
process in general, please feel free to contact me or [name of staff member] at
[number].
Sincerely,
Field Supervisor
4-6
-------
Endangered Species Consultation Handbook—Woveeber 1994
Exhibit 4-2 Example of a letter sent when a complete formal consultation request has not been
received.
Dear
The Fish and Wildlife Service has not received all of the information necessary to Initiate formal consultation
on [name of the project] as outlined in the regulations governing interagency consultations (SO CFR
§402.14). To complete the initiation package, we will require the following Information:
1. [Outline the additional information needs. Follow the general sequence and use language that parallels
50 CFR §402.14(c) to identify each piece of Information.]
2. etc.
Unto we receive all of the Information, or a statement explaining why that information cannot be made
available, the formal consultation process for the project does not begin. We wBI notify your office when
we receive this additional information; our notification letter wQI also outline the dates within which formal
consultation should be complete and the biological opinion delivered on the proposed action.
If you have any questions or concerns about this consultation or the consultation process in general, please
feel free to call me at [number].
Sincerely,
Field Supervisor
4-7
-------
Endangerad Species Consultation Hcndxx*—ttovortnr 19M
Exhibit 4^ Example of a raqunt for extension of time
United States Department of the Interior
FISH AND WILDLIFE SERVICE
. 3100 Uoncraqr BM. South
Son 110
JacfcjotmUe. Florida »]S
October 30, 1992
District Engineer
U.S. Array Corps of Engineers
P.O. Box 4970
Jacksonville, Florida 32232-0019
FWS Log No: 4-1-92-441C
Application No: 199201162(LP-CRFO)
Dated: August 6,1992
Applicant
County: Citrus
Dear]
On : „ 1992, the Fish and Wildlife Service entered into formal Section 7
consultation on the above referenced public notice. The 90-day period
expires November 4, 1992. Brrainr of the difficulties we have encountered in acquiring
additional information from the applicant, we request a 60-day extension of the
consultation period in accordance with SO CFR Part 402.14(e). The Biological Opinion
will be issued before January 3, 1993.
We have been awaiting necessary information (i.e. plat maps) showing the amount of
shoreline owned or controlled by the applicant and information on the number and sizes
of existing docks. We requested shoreline information from them in writing on August
13, 1992, and on September 1, 1992, we requested maps showing both shoreline and
dock information. We asked for this information again in a telephone, conversation with
their agent on October 14, 1992. Maps have still not been provided, however, the
applicant's wife provided with a verbal description of the map and the existing docks
in a telephone con venation on October 29, 1992. Additional time is needed to review
this information and prepare the biological opinion.
By copy of this letter, we are notifying the applicant of our request of an extension. We
look forward to your response.
Sincerely yours,
4-8
-------
Endangered Specie* Consultation Haixtnok—November 1994
(B) Incremental steps
When a statute authorizes an agency to complete an action in incremental steps,
the Services shall, at the request of the action agency, issue a biological
opinion on the incremental step being considered. That opinion also includes the
Services' views on the entire action (50 CFR §402.14(k)). An action agency may
proceed with the proposed action after consultation, when:
o the biological opinion does not conclude that the incremental step
would violate section 7(a)(2);
o the agency continues consultation with respect to the entire action,
and obtains biological opinions, as required, for incremental steps;
o the action agency fulfills Its continuing obligation to obtain
sufficient data upon which to base the final biological opinion on
the entire action;
o the incremental step does not violate section 7(d) concerning
irreversible or irretrievable commitment of resources; and
o there is a reasonable likelihood that the entire action will not
violate section 7(a)(2) of ESA.
Consultation for the first phase of an incremental step action must be conducted
formally to address these five factors. If no adverse effect is likely for
intermediate steps, consultation may be conducted informally for such steps.
Incremental step consultation is most appropriate for long-term, multistaged
activities for which agency actions occur in discrete steps, such as the
development of oil and gas resources on the Outer Continental Shelf. However,
in Conner v. Burford. 848 F.2d 1441 (9th Cir. 1988), cert, denied. 109 S.Ct. 1121
(1989), the Ninth Circuit Court of Appeals disallowed the incremental step
consultation approach for onshore oil and gas leasing and made clear the burden
it expects action agencies to carry:
In light of the ESA requirement that the agencies use the best scientific
and commercial data available to insure that protected species are not
jeopardized, 16 U.S.C. §1536(a)(2), the FWS cannot ignore available
biological information or fail to develop projections of oil and gas
activities which may indicate potential conflicts between development and
the preservation of protected species. He hold that the FWS violated the
ESA by failing to use the best information available to prepare
comprehensive biological opinions considering all stages of the agency
action, and thus failing to adequately assess whether the agency action
was likely to jeopardize the continued existence of any threatened or
endangered species, as required by section 7(a)(2). To hold otherwise
would eviscerate Congress' intent to "give the benefit of the doubt to the
species."
848 F.2d at 1454 (footnote omitted).
4-9
-------
Endangered Specie* Consultation Handbook—Movatoer 1994
The Services should follow the ruling in Conner on all consultations for proposed
on-shore oil and gas leases and other activities on Federal lands located within
the following Ninth Circuit States: Alaska, Arizona, California, Hawaii, Idaho,
Montana, Nevada, Oregon, and Washington.
The question has been raised about whether this approach is inconsistent with the
consultation regulations. The Conner court stated that Service regulations on
section 7 consultation limit the incremental-step consultation process to
activities that are statutorily segmented. See 848 F.2d at 1457 n.38. Under 50
CFR §402.14(k), an opportunity for incremental review exists when an activity is
"authorized by a statute that allows the agency to take incremental steps toward
the completion of the action." The Department of the Interior believes the
incremental steps need not be statutorily-mandated to meet the requirements of
§402.14(k), and has long held that the Hineral Leasing Act allows the use of a
segmented decisionmaking process. Therefore, Service regulations do not prevent
evaluating on-shore mineral leasing activities through Incremental-step
consultation. This disparity between Interior Department practice and the
wording of the Ninth Circuit opinion 1n Conner does not require a revision to the
section 7 regulations. Continued use of the incremental step activities in areas
outside the jurisdiction of the Ninth Circuit can still be achieved without
regulatory amendment.
4-10
-------
Endangered Specie* Consultatlon Handbook—Hovfaber 1994
4.5 COHPONENTS OF A FORMAL CONSULTATION
A formal consultation package includes at least a biological opinion and an
incidental take statement. The package also may include a conference opinion or
notice of a need to confer if proposed species or proposed critical habitats are
involved, as well as conservation recommendations for agency Implementation of
section 7(a)(1) responsibilities if relevant to the action under consultation
(Figure 4-2).
Although other environmental reviews (Including Fish and Wildlife Coordination
Act reports and NEPA analyses) may be compiled simultaneously with a section 7
consultation package, they should be separate entities. The contents of the
biological opinion and incidental take statement, including effects to listed or
proposed species or critical habitats, and appropriate measures to avoid or
minimize those effects, may be addressed 1n Service comments and recommendations
under the Fish and Wildlife Coordination Act, section 404(m) of the Clean Water
Act, the National Environmental Policy Act, and other authorities. The
consultation package may be prepared as a stand-alone document under separate
signature, or one cover transmittal may be used as long as the consultation
package is identified as a separate entity.
A sample of a formal consultation package can be found 1n Appendix B.
Following the address and salutation, the biological opinion begins with a
standardized introduction and a history of the consultation.
Introductory paragraph
The U.S. Fish and Wildlife Service (Service) has reviewed the [project
plans, permit application, etc.] for the following activity [name or
designation for the action] located In (County or state). Your (date)
request for formal consultation was received on (date). This document
represents the Service's biological opinion on the effects of that action
on (species) in accordance with section 7 of the Endangered Species Act of
1973, as amended, (16 U.S.C. 1531 et seq.).
This biological opinion is based on information provided 1n the (date)
biological assessment (or evaluation), the (date) draft environmental
assessment (or environmental impact statement), the (date) project
proposal, telephone conversations of (dates) with (names), field
Investigations, and other sources of information. A complete
administrative record of this consultation 1s on file in (this
office/elsewhere).
4-11
-------
Endangered Species Consultation Handbook—Noveaber 1994
Consultation history
The history of the consultation request includes any Informal consultation, prior
formal consultations on the action, documentation of the date consultation was
initiated, a chronology of subsequent requests for additional data, extensions,
and other applicable past or current actions. Conclusions reached 1n earlier
Informal and formal consultations on the proposed action also m^y be relevant.
For example, through Informal consultation, the Services may have determined that
some species will not be adversely affected by the action and assumes that the
conclusion remains valid.
4-12
-------
Endmgarad Spectas Consultation Hsmfcoofc Hiu^isi 1994
Figure 4-2 Outline of a foraal consultation package
[Handbook discussion in brackets]
Address
Salutatlon
Introductory paragraph [page 4-11]
Consultation history [page 4-12]
BIOLOGICAL OPINION
Description of proposed action [page 4-14]
Status of the species (range wide and/or recovery unit) [page 4-19]
Environmental baseline (in the action area) [page 4-23]
o Status, of the species [page 4-23]
o Effects of the action [page 4-24]
o Cumulative effects [page 4-29]
Conclusion [page 4-31]
Reasonable and prudent alternatives (as appropriate) [page 4-40]
INCIDENTAL TAKE STATENENT [page 4-42]
Introductory paragraph [page 4-44]
Amount or extent of take [page 4-45]
Effect of the take [page 4-47]
Reasonable and prudent measures (as appropriate) [page 4-48]
Terms and conditions [page 4-49]
CONFERENCE REPORT/CONFERENCE NOTICE (as appropriate) [page 4-54]
CONSERVATION RECONMENDATIONS (as appropriate) [page 4-55]
REINITIATION - CLOSING STATENENT [page 4-56]
LITERATURE CITED [page 4-56]
4-13
-------
Endangered Species Consultation Handbook—Novetrfwr 1994
(A) Biological opinion
"... the Secretary shall provide to the Federal agency and the
applicant, if any, a written statement setting forth the Secretary's
opiniont and a summary of the information on which the opinion is based,
detailing how the agency action affects the species or its critical
habitat. If jeopardy or adverse modification is found, the Secretary
shall suggest those reasonable and prudent alternatives which he
believes would not violate subsection (a)(2) and can be taken by the
Federal agency or applicant in implementing the agency action.
Section 7(b)(3)(A) of the Endangered Species Act
A formal biological opinion consists of a description of the proposed action,
status of the species, the environmental baseline, cumulative effects, the
Services' conclusion of jeopardy/no jeopardy and/or adverse nodlflcation/no
adverse modification and reasonable and prudent alternatives, as appropriate.
Description of the proposed action
Provide descriptions of the proposed action and the action area (area
including all direct and indirect effects) here. The description of the
proposed action does not have to be comprehensive 1f details can be referenced
from NEPA documents or other descriptions provided. However, some small
actions may not have complete or formal descriptions of the proposed action,
or the project's components may be scattered throughout a biological
evaluation (or similar document), draft NEPA documents, draft plans for
different portions of the action, miscellaneous policy and guidance documents,
letters, telephone records, meeting notes, and other documents. In such
cases, a comprehensive project description in the biological opinion is vital
to determine the scope of the proposed action. The draft project description
may be sent to the action agency for review to eliminate any inaccuracies
regarding the scope of the action. This section should summarize enough
information for the reader to understand and evaluate the logic of the
biological opinion.
As appropriate, including a transition sentence clarifies how the action area
was changed or expanded for the effects analysis: "The Services have expanded
the action area to for reasons that will be explained and discussed in
the 'Effects of the proposed action' section of this consultation." Maps ana
other graphics also may be appropriate.
Occasionally, an action agency or an applicant disagrees with the delineation
of the action area. This generally occurs when impacts to the species/habitat
result from indirect or interrelated/interdependent effects. Reaching
agreement on the area of project influence is desirable, but ultimately the
Services are responsible for this biological determination (Figures 4-3, 4-4
and 4-5).
4-14
-------
Endangered Species Consultation Handbook—Movo&er 1994
Figure 4-3 Diagram of the action area concept for section 7 consultation.
Range of Species
- Indirect Effects of
the Action
Direct Effects of
the Action
Figure 4-4 Example of an action area that encompasses the species' range.
Action area
Indirect effect of the action
Range of species
Direct effect of the action
4-15
-------
Endangered Spaciu Consultation Handbook—fcmniiiir 1994
Figure 4-5 Example of an action area Involving a water project.
A dam on the Platte River
1n Colorado (action site)
also may affect the water
regime for whooping crane
critical habitat (action
area) 150 miles downstream
in Nebraska.
Wood Buffalo
National Park
Range of
Species
Missouri R.
Action Area
(crossmarked)
Platte R.
Action site
(dam)
4-16
Aransas NVR
-------
Endangered Species Consultation Handbook—Novaafcar 1994
Additionally, determining the action area relates only to the action proposed
by the action agency. Even if the applicant has an alternative not requiring
Federal permits or funding, this does not enter into the Services' analyses.
Such alternatives can be discussed in the reasonable and prudent alternatives
or conservation recommendations if the alternative is within the agency's
jurisdiction. For example (Figure 4-6), if the proposed action is a wetland
fill to accommodate access to a proposed development (the actual area of
impact to the species), the development is not excluded from the action area
whether or not the applicant can build a road not impacting the wetland or
when the action agency maintains they cannot consider Indirect effects. If
the applicant is seriously considering the alternative with no Federal nexus
the applicant should be advised of the need for acquiring a section
10(a)(1)(B) permit before development for actions that will result in a
taking.
Figure 4-6 Determining the action area.
ALTERNATIVE ACCESS NOT AFFECTING THE WETIANO, BUT
257cS?2$IDERED IN ™E PERMIT APPLICATION, IS NOT
RELEVANT CONSULTATION ON THE PERMIT ACTION
ACTION AREA
(STIPPLED)
BRIDGE
HOUSING
DEVELOPMENT
PROPOSED ACCESS
ROAD
FILL AREA
WETLAND
AREA OF
LISTED SPECIES
OCCURRENCE
4-17
-------
Endangered Species Consultation Handbook—Hov«*i*r 1994
Describing the proposed action also includes any conservation measures
proposed as part of the action. When used in the context of the Endangered
Species Act, "conservation measures" represent actions pledged in the project
description that the action agency or the applicant will implement to
facilitate recovery of the species under review. Such measures may be tasks
recommended in the species' recovery plan, should be closely related to the
action, and should be achievable within the authority of the action agency or
applicant. For example, degraded habitat acquired by the applicant adjacent
to the area to be developed is to be improved prior to project completion so
that individuals depending on the habitat to be destroyed by development can
be relocated or allowed to relocate on the improved site.
In this example, the activity carries out a recognized conservation need for
the species. The beneficial effects of the conservation measure are taken
into consideration for both jeopardy and incidental take analyses. However,
if the conservation measure includes only off-site protection and does not
protect affected individuals in the action area, the analysis for incidental
take is made independently of the conservation measure. Discussion of the
limits for minimization under section 7, and distinction from mitigation
allowances under section 10, can be found on pages 2-4 and 2-5 of this
handbook.
Unlike conservation measures, conservation recommendations, which may be
provided at the end of the consultation package, are discretionary suggestions
for implementation by the agency or applicant.
4-18
-------
Endangered Species Consul tat ton Handbook—Miwh i 1994
Status of the species
Background information
This section describes the current status of the species as listed and
critical habitat as designated at the time of the consultation.
a. Species description
This section should briefly discuss the listing history, critical habitat, and
current known range of all species.
b. Life history
A large number of life history variables are relevant to jeopardy analyses.
These variables help determine a species' population size, age distribution,
sensitivity to a proposed action's effects, ability to recover from adverse
effects, and ability to recolonlze areas from which it has been extirpated.
Relevant life history variables include, but are not limited to, longevity,
age distribution, age to maturity, reproductive strategy (for example, the
number of times mature individuals reproduce in a lifetime, or whether mature
individuals reproduce sexually or asexually), recruitment, seasonal
distribution patterns, biogeography, food habits, niche, life cycle, hosts and
symbionts, predators and competitors, and disease factors.
c. Population dynamics
Population size: This species' characteristic is often emphasized in
consultations. Reduction in population size may jeopardize the continued
existence of threatened or endangered species because the longer a species
remains at low population levels, the greater the probability of extinction
from chance events, inbreeding depression, or additional environmental
disturbance (Gilpin and Soule 1986, Goodman 1987a, 1987b, Pimm 1991, Schaffer
1987, Underwood 1989). However, although population size has a clear
relationship to a species' extinction probability, it can be less important
than population variability and should be used carefully. How long a species
will last before extinction depends on more than population size. Large
populations may not protect a species from extinction in the face of extreme
environmental disturbance (Pimm 1991, Underwood 1989, Schaffer 1987).
Population variability: Fluctuations In species' population over time can
affect significantly the probability of Its extinction (Pimm 1991).
Population variability is affected by several characteristics of a species'
life history: unstable age distributions and reproductive rates, widely
variable mortalities resulting from unstable food resources or predation;
population density; sex ratios; recolonization rates; and genetic viability
(Pimm 1991, Underwood 1989). As a population fluctuates, one or more factors
can lead to a chance extinction, e.g., irreversibly lowering population size
to a point where it can no longer recover. Consequently, an action increasing
a species' population variability may affect the continued existence of the
species more significantly than a reduction in population size.
4-19
-------
Endangered Species Consultation Handnofc—Miihi^hii 1994
Population stability: Population stability - the ability of a species'
populations to resist change or dramatic fluctuations over time - directly
affects a species' sensitivity to the adverse effects of a proposed action.
Even age distribution, high reproductive rates, or long life spans with
multiple reproductive periods can stabilize a population.
d. Status and distribution
Information on the status and distribution of listed species helps establish
the environmental basis for a consultation. The following factors should
provide a reasonable environmental setting within which to consider the action
and cumulative effects for the consultation.
Reasons for listing: The reasons for listing a species are Important
considerations. A species listed because of commercial exploitation may be
less sensitive to habitat loss than a species listed because of habitat loss.
Ranqewide trend: With most listed species declining throughout their range,
the overall trend of a species throughout its range has implications for new
proposals that could result in additional effects on the species. The trends
of the remaining populations of listed species form the basis for evaluating
the effects of a proposed action on that species.
New threats: Often factors not considered when a species was first listed can
threaten its continued existence, and must be considered when establishing the
environmental baseline. For example, the zebra mussel (Dreissena polymorphs),
an exotic species threatening native mussel fauna throughout Its range, wasn't
considered when most native mussels were listed.
e. Species' response to a proposed action
[Note: For critical habitat analyses, many of the following considerations
apply in terms of the effect on the functional suitability of the habitat to
support the species.]
Numbers of individuals/populations in the action area affected: Many jeopardy
analyses emphasize the effects of a proposed action on the size of a species'
populations because small populations are more threatened by extinction due to
demographic accidents than large populations. However, the length of time a
species exists before extinction depends on more than population size. Large
population size may not protect a species 1n the face of extreme disturbance
(Pimm 1991, Schaffer 1987). A species' response to disturbance will depend on
the number of Individuals affected, though the age, sex, breeding status, and
distribution of affected individuals, as well as the venetic variabilty within
the remaining population(s), are equally Important because they determine a
population's ability to recover from the loss of individuals.
4-20
-------
Endangered Species Consultation Handbook—November 1994
Sensitivity to change: This factor relates to the degree to which a
population or species is prone to change when disturbed.
Resilience: This factor relates to the characteristics of populations or
species allowing them to recover from different magnitudes of disturbance.
For example, the greater the reproductive rate, the more resilient the species
may be to population losses. Moreover, habitat specificity and other factors
also contribute to a species' resiliency. Critical habitat also has
resilience: grasslands, for example, can be more resilient to the adverse
effects of fire than a forest. In a biological opinion, the biologist should
determine the type and severity of the disturbance and determine how resilient
the species is to that particular type of disturbance.
Recovery rate: This factor relates to the time required for an individual,
population, species, or community to return to equilibrium after exposure to a
disturbance. A population, species, community, or ecosystem that has a fast
recovery rate is called stable. It is often difficult to know the recovery
rate or resilience of species. In the absence of information, the best
biological estimate should be used.
Literature cited
Gilpin, H.E. and M.E. Soule. 1986. Minimum viable populations: processes of
species extinction, pp. 18-34. In: M.E. Soule (ed.) Conservation
biology: the science of scarcity and diversity. Sinauer Associates,
Inc.; Sunderland, Massachusetts.
Goodman, 0. 1987a. The demography of chance extinction, pp. 11-19. In: M.E.
Soule (ed.) Conservation biology: the science of scarcity and diversity.
Sinauer Associates, Inc.; Sunderland, Massachusetts.
Goodman, D. 1987b. How do any species persist? Lessons for conservation
biology. Conservation Biology 1:59-62.
Harrison, G.W. 1979. Stability under environmental stress: resistance,
resilience, persistence, and variability. American Naturalist 113:659-
669.
Innis, G. 1974. Stability, sensitivity, resilience, persistence. What is of
interest? pp.131-139. In: S. Levin (ed.) Ecosystem analysis and
prediction. SIAM; Philadelphia, Pennsylvania.
Pimm, S.L. 1991. The balance of nature: ecological issues in the
conservation of species and communities. University of Chicago Press;
Chicago, Illinois.
Schaffer, M. 1987. Minimum viable populations: coping with uncertainty, pp.
69-86. In: M.E. Soule (ed.) Conservation biology: the science of
scarcity and diversity. Sinauer Associates, Inc.; Sunderland,
Massachusetts.
4-21
-------
Endangered Species Consultation Hudnok—November 1994
Trudghill, S.T. 1988. Soil and vegetation systems. Second edition. Oxford
University Press; New York, New York.
Underwood, A.J. 1989. The analysis of stress 1n natural populations.
Biological Journal of the Linnean Society 37:51-78.
Analysis for status of the species
This discussion identifies only those species likely to be adversely affected,
unless the Federal agency requests consultation on a beneficial action. Other
listed species present 1n the project area also are noted here along with the
reasons they are not adversely affected, and a statement they will not be
considered further in the consultation. This section also should include the
date of the listing, description of critical habitat, 1f designated, and
description of the current known range of the species.
This section presents the biological or ecological Information relevant to
formulating the biological opinion. Appropriate Information on the species'
life history, its habitat and distribution, and other data on factors
necessary to its survival, is included to provide background for analyses 1n
later sections. This analysis documents the effects of all past human and
natural activities or events that have led to the species' current status.
This information is presented in listing documents, and refined in recovery
plans.
When Service review focuses on the effects of the action on a discrete
recovery unit, this section describes the status of that recovery unit and its
significance to the species as listed. For example, 1f the opinion focuses on
the Chesapeake Bay recovery unit of the bald eagle, the status of that
recovery unit is discussed including the recovery unit's role to both the
survival and recovery of the species as listed.
4-22
-------
Endangered Species Consultation Hmbook—Hovofaer 1994
Environmental baseline
The environmental baseline is an analysis of the effects of past and ongoing
human and natural factors leading to the current status of the species or its
habitat and ecosystem.
Status of the species within the action area
Unless the species' range is wholly contained within the action area, this
analysis is a subset of the preceding rangewlde status discussion. The
purpose is to analyze the effects on the species and/or critical habitat at
the local level. For example, the following issues are considered:
o the percent or amount of the species range In the action area;
o whether the effect is quantitative or qualitative;
o the distribution of the affected and unaffected habitat; and
o if critical habitat, the effect on the constituent elements.
This analysis describes the status of the species and factors affecting the
environment of the species or critical habitat in the proposed action area
during the consultation (Figure 4-3). The baseline includes State, local, and
private actions already affecting the species. Unrelated Federal actions that
have completed formal or informal consultation also are part of the
environmental baseline, as are Federal and other actions within the action
area that may benefit listed species or critical habitat.
An agency action can be removed from the environmental baseline under any of
the following conditions:
o an action agency notifies the Services in writing that a
previously proposed action will not be implemented;
o a biological opinion for the proposed action is no longer valid
because consultation has been reinitiated; or
o alternatives have been implemented that remove all adverse
effects.
4-23
-------
Endangered Species Consultation Hancfcoofc- Mo»wber 1994
Effects of the action
This section includes a raultifaceted analysis describing direct and indirect
effects on the species or critical habitat from the proposed action and its
interrelated and interdependent activities.
a. Action parameters to consider
Proximity of the action: to the species or management units.
Distribution: geographic areas over which the disturbance occurs (e.g., may
be several small or one large effect).
Timing: relationship to sensitive periods of a species' Hfecycle.
Nature of the effect: effects of the action on elements of a species'
lifecycle, population size or variability, or distribution, including direct
and indirect effects.
Duration: three categories pertaining to the length of time of a disturbance
produced by a proposed action: (1) a short-term event whose effects are
relaxed almost immediately (pulse effect), (2) a sustained, long-term, or
chronic event whose effects are not relaxed (press effect), or (3) a permanent
event that sets a new threshold for some feature of a species' environment
(threshold effect). The effects of a proposed action on listed species or
critical habitat depend largely on the duration of Its effects. For many
species, a proposed action that produces a single, short-term effect is less
likely to jeopardize the continued existence of a species than a long-term
chronic event or the permanent alteration of a species' habitat.
Disturbance frequency: the mean number of events per unit time affecting a
species differently depending on its recovery rate. If the disturbance
frequency is greater than a species' recovery rate, the species will be unable
to recover between disturbances (Figure 7d). If the disturbance frequency
equals the species' recovery rate, the species becomes more sensitive to the
effects of other disturbances (Figure 7c). If the disturbance frequency is
less than the species' recovery rate, the species might persist in the face of
the disturbance (Figures 7a-b). Disturbance frequency is an important
consideration when evaluating the accumulating effects of proposed actions on
listed species, particularly when it is combined with information on a
species' recovery rate (figures modi-ied from Trudghill 1988).
4-24
-------
Enctengered Species Consultation handbook—Moveaber 1994
. Frequency
i i i i i
a
I I * —I
V~U--L--' I-
^ I M \
\ I \ \ M
b
Figure"} The effects of disturbance frequency on system response. (a-M the recovery meijpMMf than
the disturbance frequency, (c) the recovery rate is equal to the disturbance frequency, matinsthe system
potentially more snslttrs to other disturbances, (d) the recovery I* lower than the disturbance
frequency and the system slowly deteriorates.
Disturbance intensity; the effect of the disturbance on a population or
species as a function of the population or species' state after the
disturbance. For example, a Disturbance reducing the size of a population by
40 percent is more intense thaii a disturbance reducing population size by 10
percent.
Disturbance severity: the effect of a disturbance on a population or species
as a function of recovery rate. The longer the recovery rate, the more severe
the disturbance. For example, a disturbance from which a species takes 10
years to recover 1s more severe than a disturbance requiring 2 years for
recovery. A severe disturbance makes a population or species more susceptible
to the effects of multiple actions.
4-25
-------
Endangered Species Consultation II Hnmwiiiii 1994
b. Analyses for effects of the action
Sufficient description of the proposed action should be included so that the
subsequent analysis of effects and the scope of the opinion are clear.
Direct effects: encompass the direct or immediate effect of the project on
the species or its habitat, e.g., driving an off road vehicle through the
nesting habitat of the piping plover may destroy Its ground nest; building a
housing unit may destroy the habitat of an endangered mouse. Direct effects
result from the agency action including the effects of interrelated actions
and interdependent actions (see definitions below for clarification). Future
Federal actions not meeting one or more of these criteria (and not included in
the environmental baseline or are treated as indirect effects) are not
considered in this biological opinion.
Determining if an action is interdependent or interrelated depends on the "but
for" test. Ask whether the Federal, State, or private activity could occur
"but for" the proposed action.
Interrelated actions are part of a larger action and depend on the larger
action for their justification.
Examples: A section 404 permit for a dam provides water to private
irrigation channels. The private irrigation channels are interrelated
and must be considered in a biological opinion for the larger water
development project.
DOE proposes to build a powerline to connect two proposed electrical
power grids. The powerline is part of a larger action (the power
grids), which identifies the proposal's action area.
Interdependent actions are actions having no independent utility apart from
the proposed action.
Examples: In the dam example, a power turbine on the dam cannot function
without the dam and is therefore interdependent with the project. Thus
effects of this turbine on fish passage and water quality are considered
in the biological opinion.
With the powerline, an electrical service or utility line is proposed as
a step down off the connecting power line to service a ground water
pump. This service line and the pump have no independent utility
without the powerline.
When one or more Federal actions are determined by the Services to be
interdependent or interrelated to the proposed action, or are indirect effects
of the proposed action, they are combined in the consultation and a lead
agency is determined for the overall consultation.
Indirect effects: are caused by or result from the proposed action, are later
4-26
-------
Endangered Species Consultation Handbook—Hovaater 1994
in time, and are reasonably certain to occur, e.g., the newly hatched piping
plover falls into the track left by the ORV and cannot escape its predators;
the people moving into the housing unit bring cats that prey on the mice left
in the adjacent habitat.
Indirect effects may include other Federal actions that have not undergone
section 7 consultation but will result from the action under consideration.
In order to treat these actions as indirect effects in the biological opinion,
they must be reasonably certain to occur, as evidenced in appropriations, work
plans, budgeting; they follow a pattern of activity undertaken by the agency
in the action area; or they are a logical extension of the proposed action.
Non-Federal activities with indirect effects also can be predicted,
particularly for ongoing projects with a past pattern of use anticipated to
continue.
Example: A very complex example of indirect effects arose in
determining effects of renewing water service contracts from a large
reclamation project (Friant unit of the Central Valley Project) in the
San Joaquin Basin of California. Upon checking with other Federal and
State agencies, the FWS determined that the distribution of water for
agricultural use on the higher east side of the Valley provided a
hydrologic head maintaining the groundwater table on the west side of
the Valley at a level making it economical to pump. As a result,
occupied habitats for several species on the west side of the Valley
were being destroyed because the pumped water could be used to convert
this land to agriculture. The California Department of Water Resources
provided trend data indicating a continuing conversion of habitat of
10,000 to 30,000 acres per year. These data were used to assess future
non-Federal effects of the project.
Several court cases provide examples of indirect effects of a proposed action.
In National Wildlife Federation v. Coleman. 529 F.2d 359 (5th Cir.), cert,
denied. 429 U.S. 979 (1976), the court ruled that indirect effects of private
development resulting from proposed construction of highway interchanges had
to be considered as impacts of a proposed Federal highway project, even though
the private development had not been planned at the time the highway project
was proposed. In another case, Riverside Irrigation District v. Andrews. 758
F - 2d 508 (10th Cir. 1985), the court ruled that the Corps of Engineers must
consider the effects of consumptive water uses made possible by the proposed
dam on critical habitat for whooping cranes 150 miles away, in addition to the
local impacts of placing fill for the dam.
If the analyses for this section determine that some individuals of a listed
animal might be "taken" as a direct or indirect result of the proposed action,
that information is included in the incidental take statement.
Determining the effect of ongoing water projects: Under the Federal Power
Act, as amended by the Electric Consumers Protection Act of 1986, the Federal
4-27
-------
Endangered Species Consultation Handbook—Novortwr 1994
Energy Regulatory Commission (FERC) issues new licenses for existing
hydropower projects as the original licenses expire. FERC has determined
these new licenses represent a new commitment of resources. Therefore, a
section 7 analysis of the project's effects on listed species is done in the
same way as new projects. The following approach Is used when analyzing these
water projects, as well as water contract renewals for Bureau of Reclamation
(Bureau) programs and ongoing discretionary operations of Bureau and Corps of
Engineers water facilities.
o The total effects of all past activities, Including effects of the
oast operation of the project, current non-Federal activities, and
Federal projects with completed section 7 consultations, form the
environmental baseline;
o To this baseline, future direct and indirect Impacts of the
operation over the new license or contract period, Including
effects of any Interrelated and Interdependent activities, and any
reasonably certain future non-Federal activities (cumulative
effects), are added to determine the total effect on listed
species and their habitat.
o The action's direct effects may be determined by analyzing the run
of the river with and without the project.
Annual operating permits issued prior to Issuance of a new hydropower license
are subject to section 7 consultation 1f the Federal agency has discretion to
determine the terms of the annual permits.
4-28
-------
Endangered Species Consultation Handbook—Miui^mi 1994
Cumulative effects
Section 7 regulations require the Federal action agency to provide an analysis
of cumulative effects, along with other information, when requesting
initiation of formal consultation. Additionally, the Services are required to
consider cumulative effects 1n formulating Its biological opinions (50 CFR
§402.14(g)(3) and (4)). The standardized paragraph to introduce the
cumulative effects section is:
Cumulative effects Include the effects of future State, local or private
actions that are reasonably certain to occur in the action area
considered 1n this biological opinion. Future Federal actions that are
unrelated to the proposed action are not considered 1n this section
because they require separate consultation pursuant to section 7 of ESA.
The concept of cumulative effects is frequently misunderstood as it relates to
determining likely jeopardy or adverse modification. Cumulative effects
include effects of future State, local, and private actions, not involving a
Federal action, that are reasonably certain to occur within the action area
under consideration. Future Federal actions requiring separate consultation
(unrelated to the proposed action) are not considered in the cumulative
effects section.
The "reasonably certain to occur" clause is a key factor in assessing and
applying cumulative effects in biological opinions. First, cumulative effects
involve only future non-Federal actions: past and present impacts of non-
Federal actions are part of the environmental baseline. Indicators of effects
"reasonably certain to occur" may include, but are not limited to: approval of
the action by State or local agencies or governments (e.g., permits, grants);
indications by State or local agencies or governments that granting authority
for the action is imminent; project sponsors' assurance the action will
proceed; obligation of venture capital; or initiation of contracts. The more
State or local administrative discretion remaining to be exercised before a
proposed non-Federal action can proceed, the less there is a reasonable
certainty the project will be authorized. Speculative non-Federal actions
that may never be implemented are not factored into the "cumulative effects"
analysis. At the same time, "reasonably certain to occur" does not require a
guarantee the action will occur. The action agency and the Services should
consider the economic, administrative, and legal hurdles remaining before the
action proceeds.
The cumulative effects analysis is the last step or factor considered in
formulating the biological opinion. Sometimes, cumulative effects can be the
deciding factor in determining the likelihood of jeopardy or adverse
modification. However, this is frequently the least documented part of
biological opinions, due to the lack of definitive information on future
State, local, or private actions.
4-29
-------
Endangered Species Consultation Handbook—Hovedxr 1994
Gathering information on cumulative effects often requires more effort than
gathering information on a proposed action. One of the first places to seek
cumulative effects information is in documents provided by the action agency
such as NEPA analyses for the action. The Services can review the broader
NEPA discussion of cumulative effects, and apply ESA's narrower cumulative
effects definition. Information on future non-Federal actions also can be
obtained through observations and inquiries during field reconnaissance 1n the
action area; discussions with State game and fish agencies and other Federal,
State, and local agencies, and conservation organizations; and newspapers and
other sources of local information (e.g., radio, television, libraries).
When addressing a section 7 action within a larger section 10(a)(1)(B)
planning area, non-Federal proposals for development 1n the Habitat
Conservation Plan are considered cumulative effects for that planning area
until the section 7 consultation for the section 10(a)(1)(B) permit 1s
completed, at which time the effects of those developments become part of the
baseline for future consultations.
Example: Formal consultation was conducted with the Federal Highway
Administration (FHWA) on construction of a new highway In Latimer
County, Oklahoma. The endangered American burying beetle 1s known to
use forest and forest/edge habitats within the immediate area of the
highway, and activities disturbing the soil surface of the beetle's
habitat can impact reproduction. Intensive surface mining for coal and
natural gas development were occurring in Latimer County and within the
action area. Both of these activities would "benefit" from the new
highway, but were independent of the highway construction. Coal mining,
regulated by the Office of Surface Mining, was not considered a
cumulative effect because it requires section 7 consultation. Future
natural gas development is a cumulative effect as 1t is regulated by the
State drilling permits. The frequent occurrence of new drilling sites
in the area indicated this activity was "reasonably certain to occur" in
the future. Further, several landowners in the action area had recently
signed contracts to sell their mineral rights to gas companies.
4-30
-------
Endangered Species Consultation Hancfeook—Noveaber 1994
Conclusion
This section presents the Services' opinion regarding whether the aggregate
effects of the factors analyzed under "environmental baseline", "effects of
the action", and cumulative effects in the action area, when viewed against
the status of the species as listed, are likely to jeopardize the continued
existence of the species or result In destruction or adverse modification of
critical habitat.
Note: Conditional no jeopardy biological opinions (a conclusion of no
jeopardy if the action agency undertakes certain mitigative measures) do not
comply with section 7 regulations or the intent of ESA. The Services can
evaluate only the Federal action proposed, not the action as the Services
would like to see it modified.
The standardized statement for introducing the conclusion section is as
follows:
After reviewing the current status of (species), the environmental
baseline for the action area [use 1f different from the range of the
species], the effects of the proposed (action) and the cumulative
effects, 1t 1s the Service's biological opinion that the (action), as
proposed, (is/1s not) likely to jeopardize the continued existence of
the (species), and (is/is not) likely to destroy or adversely modify
designated critical habitat. [If no critical habitat has been
designated for the species or the action will not effect designated
critical habitat, use one of the following statements.] Ho critical
habitat has been designated for this species, therefore, none will be
affected. -OR- Critical habitat for this species has been designated at
(location), however, this action does not affect that area and no
destruction or adverse modification of that critical habitat 1s
anticipated.
This section address only two issues: whether the proposed action is likely to
(1) jeopardize the continued existence of a listed species or (2) result 1n
the destruction or adverse modification of critical habitat. The acceptable
conclusions for this section of a biological opinion are as follows:
Jeopardy:
Likely to jeopardize the continued existence of [one or more species]
Not likely to jeopardize the continued existence of [one or more
species]
Note: if the consultation is a reinitiation for consideration of effects on a
subsequently designated critical habitat, repeat the previous finding of
jeopardy or no jeopardy here for information purposes.
4-31
-------
Endangered Specie* Consultation Handbook—Hnwriwi 1994
Destruction or adverse modification:
No critical habitat has been designated for this species; therefore,
none will be destroyed or adversely modified.
Critical habitat has been designated for this species, but the action is
not likely to affect it: therefore, there is no destruction or adverse
modification or the critical habitat.
The action is likely to result 1n destruction or adverse modification of
critical habitat
The action is not likely to result 1n destruction or adverse
modification of critical habitat.
Analyses for jeopardy and adverse modification
Section 7(a)(2) of ESA requires Federal agencies to satisfy two standards in
carrying out their programs: Federal agencies must ensure that their
activities are not likely to (1) jeopardize the continued existence of any
listed species, or (2) result in the destruction or adverse modification of
critical habitat. Section 7(a)(4) of ESA also requires Federal agencies to
confer with the Services on actions likely to jeopardize the continued
existence of any species proposed for listing or result in the destruction of
adverse modification of any proposed critical habitat.
Regulations implementing these sections of ESA define "jeopardize the
continued existence of" as "to engage in an action that would be expected,
directly or indirectly, to reduce appreciably 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", and "destruction or
adverse modification" as "a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and recovery of
a listed species. Such alterations include, but are not limited to,
alterations adversely modifying any of those physical or biological features
that were the basis for determining the habitat to be critical."
"Critical Habitat" consists of (1) specific areas within the geographical area
currently occupied by a species, at the time it is listed in accordance with
ESA, on which are found those physical or biological features (i) essential to
the conservation of the species, and (1i) that may require special management
considerations or protection, and (2) specific areas outside the geographical
area occupied by a species at the time it is listed upon a determination by
the Secretary that such areas are essential for the conservation of the
species (50 CFR §402.02).
The Services' abilities to designate unoccupied habitat as critical habitat
when such areas are essential to the conservation (recovery) of listed species
adds another dimension to the analysis. It may be possible to conclude
adverse modification for similar actions if unoccupied critical habitat is
4-32
-------
Endangered Species Consultation Hen*oolt—Hoveeber 1994
sufficiently affected to appreciably diminish its value for both survival and
recovery. Therefore, it is practical to distinguish between occupied and
unoccupied critical habitat when a biological opinion is prepared.
Analyses are made for jeopardy when the species is present or potentially
present, and for adverse nod1f1cat1on when designated critical habitat is
affected. When both analyses are made and both standards are exceeded, the
reasonable and prudent alternatives should address eliminating or reducing
both conditions.
The determination of jeopardy or adverse modification is based on the effects
of the action on the continued existence of the entire listed species or
listed population, and/or the effect on critical habitat as designated in the
final rulemaking. When units or groupings of critical habitat are designated
for particular purposes, these units or groupings may serve as the basis of
the analysis if protection of different facets of the species' life cycle or
its distribution is essential to both its survival and recovery. Adverse
effects on individuals of a species or constituent elements or segments of
critical habitat generally do not result 1n jeopardy or adverse modification
determinations unless that loss, when added to the environmental baseline, is
likely to result in significant adverse effects throughout the species' range,
or appreciably lower the capacity of the critical habitat to support the
species.
Definitions
Appreciably diminish the value: to significantly reduce the capability of
critical habitat to satisfy essential both the survival and recovery
requirements for a listed species.
Constituent elements - physical and biological features of critical habitat
including, but not limited to: (1) space for individual and population growth,
and for normal behavior; (2) food, water, air, light, minerals, or other
nutritional or physiological requirements; (3) cover or shelter; (4) sites for
breeding, reproduction, rearing of offspring, germination, or seed dispersal;
and (5) habitats that are protected from disturbance or are representative of
the historic geographic and ecological distributions of a species.
Occupied critical habitat: critical habitat that contained individuals of the
species when that habitat was designated. A species does not have to occupy
critical habitat throughout the year for the habitat to have been considered
occupied. Moreover, subsequent events affecting the species may result in
this habitat becoming unoccupied.
Recovery: improvement in the status of a species and the ecosystems upon
which they depend. Said another way, recovery is the process by which
species' ecosytems are restored so they can support self-sustaining and self-
regulating populations of listed species as persistent members of native
biotic communities.
4-33
-------
Endangered Species Consultation Handbook—llovariier 1994
Survival: the species' persistence, beyond the conditions leading to Its
endangerment, with sufficient resilience to allow recovery. Said another way,
survival is the condition in which a species continues to exist into the
future while retaining the potential for recovery. This condition is
characterized by a species with a sufficiently large population, represented
by all age classes, genetic heterogeneity, and number of sexually mature
Individuals producing viable offspring, that exists 1n an environment
providing all requirements for completion of the species7 entire life cycle,
including reproduction, sustenance, and shelter.
Unoccupied critical habitat: critical habitat not occupied by the listed
species at the time the critical habitat was designated. The habitat may be
suitable, but the species was extirpated from this portion of Its range.
Conversely, the critical habitat may have been unsuitable for the species when
the habitat was designated, but restorable with proper management treatment.
Unoccupied habitat is usually designated because 1t is necessary to either
stabilize or assure eventual recovery of a listed species. As recovery
proceeds, this formerly unoccupied habitat may become occupied.
Additionally, designated, unoccupied habitat may never be occupied by the
species, but is essential for conserving the species because it maintains
factors constituting the species' habitat. For example, critical habitat may
be designated for an upstream area maintaining the hydrology of the species'
habitat downstream from the designated area.
a. Jeopardy analysis
In determining whether an action is likely to jeopardize a species, the action
is viewed against the aggregate effects of everything that has led to the
species' current status and, for non-Federal activities, those things likely
to affect the species in the future. At this point, the biologist sums up the
analyses done to determine (1) the status of the species, (2) the
environmental baseline, (3) all effects of the proposed action, and (4) the
cumulative effects of other anticipated actions.
The final analysis then looks at whether, given the aggregate effects, the
species can be expected to survive and recover, as those terms are defined
above. For the jeopardy analysis, this survival is framed in terms of the
species' reproduction, numbers, and distribution in the wild.
Exceptions to the jeopardy standard: A jeopardy opinion is rendered when the
total of the species' status, environmental baseline, effects of the proposed
action, and cumulative effects lead to the conclusion that the proposed action
is likely to jeopardize the continued existence of the entire species,
subspecies, or vertebrate population as listed. However, for many wide-
ranging species or those with disjunct or fragmented distributions, strict
adherence to this general policy can result in significant accumulated losses
of habitat and population that may, in total, result in a jeopardy situation.
4-34
-------
Endangered Spccfes Consultation HuwSnofc—Nwmter 1994
In the past, exceptions from the jeopardy standard were granted for specific
populations or "recovery units" of a species. That process is discontinued
and all exceptions wiTT follow the following guidance.
Jeopardy analyses nay be based on an assessment of impacts to recovery units
when those units are described as necessary to both the survival and recovery
of the species in the final listing rule or in the current recovery plan(sj
for the species. As most initial recovery plans take 2 1/2 years to complete,
any species needing section 7 consideration for less than the entire listed
entity should have the appropriate species' subunits described in ttie final
rule.
At publication, a species' recovery plan lays out the best available
scientific information relative to the areas and environmental elements needed
for that species to recover. Recovery plans may geographically describe
actual recovery units (e.g., show lines on a map) essential to recovering the
species that may or may not have been designated as critical habitat. Figures
4-8 and 4-9 illustrate such site-specific delineation of recovery units for
the Higgin's eye pearly mussel-
When an action appreciably impairs or precludes the capability of a recovery
unit from providing both the survival and recovery function assigned it, that
action may represent jeopardy to the species. When using this type of
analysis, include in the biological opinion a description of how the action
affects not only the recovery unit's capability, but the relationship of the
recovery unit to both the survival and recovery of the listed species as a
whole.
For example, the recovery plan for the Higgin's eye pearly mussel identifies
several site-specific units of habitat essential to the recovery of the
species. An action that adversely affects the critical features of one of
these recovery units can jeopardize the survival and recovery of the species.
However, when dealing with a recovery unit keep in mind the status of the
species as a whole to ensure that an action affecting only one unit does not
jeopardize the whole species. For example, the Prairie du Chien recovery unit
of the Higgin's eye pearly mussel, considered alone, might be relatively
healthy and appear to be able to sustain some impact before the species in
that recovery unit is jeopardized. But, as identified by the approved
recovery plan, that recovery unit contains the only known reproducing
individuals of the species and may represent a major source of individuals for
ensuring the survival of other recovery units, any loss of reproductive
capability in the Prairie du Chien unit can represent jeopardy because the
conservation of the entire species would be significantly impaired.
4-35
-------
Endangered Species Consultation Handbook—kovasber 1994
Figure 4-8 Example of "recovery unit"
l/»«T
ftlNNISOTA
• • ¦¦¦¦¦
IOWA
WHISKEY ROCK I
E
.OUOHl
1
OU CHIEN
1
tJDl
•UTTSNO
b/D M
kRI ey c«*n
mcmiluan island
L/O #10
LSD •
OUBUQUt
WISCONSIN
fciiNOlS
>l/0 ra
Essential Habitat sites
for the H1gg1ns' lyt Hussel
[SYLVAN SLOUGH!
uv ro
8k*v
WD
fU
MOUNE/
tOCK SU^NO
4-36
-------
0
«•'•" C.
0
-------
Endangered Species Consultation Handbook—Ihwaibci 1994
b. Analysis of destruction or adverse stodlflcation of critical habitat
Critical habitat includes those physical and biological features essential to
the conservation of listed species that may require special management
considerations or protection. These physical and biological features include:
o space for Individual and population growth and for normal
behavior;
o food, water, air, light, minerals, or other nutritional or
physiological requirements;
o cover or shelter;
o sites for breeding, reproduction, rearing of offspring,
germination, or seed dispersal;
o habitats protected from disturbance or representative of the
historic geographical and ecological distributions of a species.
When a critical habitat designation is thorough and accurate, that habitat and
its constituent elements describe an area that is essential to the ultimate
recovery of the listed species. However, many critical habitat designations
predate the requirement for identification of constituent elements or habitat
qualities necessary to allow a species to survive and recover from extinction.
In such cases, the biologist should use the best scientific and commercial
data available to determine those characteristics of the designated critical
habitat that support the species' survival and recovery.
If an action affects critical habitat, but does not appreciably diminish the
value of constituent elements essential to the species' conservation, the
adverse modification threshold is not exceeded. On the other hand, the
adverse modification threshold is exceeded when the proposed action will
adversely affect the critical habitat's constituent elements or their
management in a manner likely to appreciably diminish or preclude the role of
that habitat in both the survival and recovery of the species. For conference
purposes, constituent elements described 1n the proposal are used to determine
likely jeopardy or adverse nodiflcatlon.
The consultation or conference focuses on the entire critical habitat area
designated unless the critical habitat rule identifies another basis for
analysis, such as discrete units and/or groups of units necessary for
different life cycle phases, units representing distinctive habitat
characteristics or gene pools, or units fulfilling essential geographic
distribution requirements.
To determine if a proposed action is likely to destroy or adversely modify
critical habitat, refer to the critical habitat designation in 50 CFR Part 17
Subpart I. The rule provides a narrative description of the area(s) included
in the designation. A map of the critical habitat may be provided, and since
4-38
-------
Endangered Species Consultation Hanftnak—Moveefaer 1994
1985, the rule may Identify constituent elements associated with the habitat.
The level of detail used to describe constituent elements contained in
critical habitat designations varies widely. Some, usually older, critical
habitat designations do not describe constituent elements, while others
provide only a general description of the types of habitat contained within
the designation.
For example, the critical habitat designation for the Perdldo Key beach mouse
(Peromyscus polionotus trissyllepsis) Identifies the following constituent
elements: ..."dunes and Interdunal areas, and associated grasses and shrubs
that provide food and cover." Similarly, the critical habitat designation
for the Sonora chub (6/7a ditaenia) Identifies primary constituent elements as
"...clean permanent water with pools and intermediate riffle areas and/or
intermittent pools maintained by bedrock or by subsurface flows 1n areas
shaded by canyon walls." As data become available on the species' habitat
needs and the qualitative and quantitative attributes of the physical and
biological features representing "clean permanent water," it becomes possible
to determine if an action is likely to destroy or adversely modify critical
habitat.
The following steps help determine 1f a proposed action is likely to destroy
or adversely modify critical habitat:
o Review the status of the critical habitat as designated and the
environmental baseline within the action area. The status and
environmental baseline for any constituent elements may have been
modified by actions considered In earlier biological opinions.
o Those opinions should be consulted to determine the current
baseline.
o Evaluate the effects of the proposed action on the constituent
elements of critical habitat.
o Evaluate the cumulative effects in the action area on the critical
habitat and its constituent elements.
o Assess whether the aggregate effects of these analyses will
appreciably diminish the value of the critical habitat in
sustaining its role in both the survival and recovery of the
species.
4-39
-------
Endangered Species Consultation Handbook—Howafaer 1994
Reasonable and prudent alternatives
This section lays out reasonable and prudent alternative actions, if any, the
Services believe the agency or the applicant may take to avoid the likelihood
of jeopardy to the species or destruction or adverse nodification of critical
habitat (50 CFR §402.14(h)(3)). When a reasonable and prudent alternative
consists of multiple activities, It is imperative that the opinion contain a
thorough explanation of how each component of the alternative is essential to
avoid jeopardy and/or adverse modification.
If adopted by the action agency, the reasonable and prudent alternatives do
not undergo subsequent consultation to meet the requirements of section
7(a)(2). Acceptance of the Services' reasonable and prudent alternative
concludes the consultation process.
Section 7 regulations (50 CFR §402.02) limit reasonable and prudent
alternatives to:
o alternatives the Services believe will avoid the likelihood of
jeopardy,
o alternatives that can be implemented in a manner consistent with
the intended purpose of the action,
o alternatives that can be implemented consistent with the scope of
the action agency's legal authority and jurisdiction, and
o alternatives that are economically and technologically feasible.
If the Services conclude that certain alternatives are available that would
avoid jeopardy and adverse modification, but such alternatives fail to meet
one of the other three elements in the definition of "reasonable and prudent
alternative," the Services should document the alternative in the biological
opinion to show it was considered during the formal consultation process.
This information could prove important during any subsequent proceeding before
the Endangered Species Committee.
In some cases, no alternatives are available to avoid jeopardy or adverse
modification. Examples include cases in which the corrective action relies
on:
o an alternative not under consideration (e.g., locating a project
in uplands instead of requiring a Corps permit to fill a wetland);
o actions of a third party not involved in the proposed action
(e.g., only the County, which is not a party to the consultation,
has the authority to regulate speed limits);
o actions on lands over which the action agency has no jurisdiction
or no residual authority to enforce compliance; and
4-40
-------
Endangered Special Consultation Handbook- Uuitmber 1994
o data not available on which to base an alternative.
In these cases, a statement is included that no reasonable and prudent
alternatives are available, along with an explanation. When data are not
available to support an alternative, the explanation is that according to the
best available scientific and commercial data, there are no reasonable and
prudent alternatives to the action undergoing consultation.
The Services are committed to working closely with action agencies and
applicants in developing reasonable and prudent alternatives. The Services
will, in most cases, defer to the action agency's expertise and judgment as to
the feasibility of an alternative. When the agency maintains the alternative
is not reasonable or not prudent, the reasoning for its position Is to be
provided in writing for the administrative record. The Services retain the
final decision on which reasonable and prudent alternatives are included in
the biological opinion. When necessary, the Services may question the
agency's view of the scope of its authorities to implement reasonable and
prudent alternatives.
The following standardized paragraphs are used in this section:
Introductory paragraph:
Regulations (50 CFR §402.02) Implementing section 7 define reasonable
and prudent alternatives as alternative actions, Identified during
formal consultation, that (1) can be implemented 1n a manner consistent
with the Intended purpose of the action, (2) can be Implemented
consistent with the scope of the action agency's legal authority and
jurisdiction, (3) are economically and technologically feasible, and (4)
would, the Service believes, avoid the likelihood of jeopardizing the
continued existence of listed species or resulting in the destruction or
adverse modification of critical habitat.
Closing paragraph:
Because this biological opinion has found (jeopardy/destruction or
adverse modification of critical habitat), the (agency) Is required to
notify the Service of Its final decision on the Implementation of the
reasonable and prudent alternatives.
4-41
-------
Endangered Species Consultation Handbook—Hovoober 19S4
B. Incidental Take Statement
'(4) If after consultation under subsection (a)(2) of this section, the
Secretary concludes that -
(A) the agency action will not violate such subsection, or offers
reasonable and prudent alternatives which the Secretary believes
would not violate such subsection;
(B) the taking of an endangered species or a threatened species
incidental to the agency action will not violate such subsection;
and
(C) if an endangered species or a threatened species of a marine
mamal Is involved, the taking is authorized pursuant to section
1371(a)(5) of this title;
the Secretary shall provide the Federal agency and the applicant
concerned, If any, with a written statement that -
(i) specifies the impact of such Incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the
Secretary considers necessary or appropriate to minimize such
impact,
(Hi) in the case of marine mammals, specifies those measures that
are necessary to comply with section 1371(a)(5) of this title with
regard to such taking, and
(iv) sets forth the terms and conditions (including, but not
limited to, reporting requirements) that must be complied with by
the Federal agency or applicant (if any), or both, to implement
the measures specified under clauses (ii) and (i1i).m
Section 7(b)(4) of the Endangered Species Act
As a matter of policy, the Services require an Incidental take statement be
included in all formal consultations, thus assuring the action agency that
this element of formal consultation has been considered.
What is incidental take
Properly interpreting an incidental take statement requires familiarity with
section 9 of ESA, which identifies acts that are prohibited when dealing with
any endangered and some threatened1 species of fish and wildlife. When the
consultation involves plants, the agency 1s advised that ESA does not address
incidental take of these species. However, cautions may be provided on pro-
hibitions against certain deliberate takings of plants (see standardized
statement on page 4-45). The term "take" is defined by ESA (section 3(19)) to
mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct."
Section 9 prohibitions apply to threatened species unless there are
special rules that provide exemptions. To determine if section 9
prohibitions apply to threatened species, check 50 CFR Part 17 for
any special rules that may have been promulgated for the species.
4-42
-------
Endangered Species Consultation tUndbook—November 1994
Host of these terms are commonly understood. However, the terms "harm" and
"harass" have been further defined by regulations at 50 CFR §17.3, as follows:
o Harass means an intentional or negligent act or omission which
creates the likelihood of injury to wildlife by annoying it to
such an extent as to significantly disrupt normal behavior
patterns which include, but are not limited to, breeding, feeding,
or sheltering.
o Harm means an act which actually kills or injures wildlife. Such
acts may Include significant habitat modification or degradation
when it actually kills or injures wildlife by significantly
impairing essential behavioral patterns including breeding,
feeding or sheltering.
A 1981 Solicitor's opinion (Appendix D, #S0-1) expands on these concepts,
holding that an act that harasses wildlife must demonstrate the likelihood of
injury to the species and some degree of fault, whether intentional or
negligent. Thus, a private landowner who wishes to develop land that serves
as habitat for listed wildlife is not harassing that wildlife if reasonable
measures are taken to avoid their injury. However, if the modification of
such habitat actually results in death or injury, the species would be
"harmed."
Identifying habitat modifications that harm individuals of a species involves
understanding the species' life history. For example, the Florida scrub jay
is highly territorial and relies for Its existence on food cached within Its
territory. A project that destroys occupied habitat and thus the food supply
for that family group is likely to result 1n their starvation. Similarly, a
number of birds are highly site-tenacious, returning year after year to the
same nesting site. Removal of nesting habitat on that site is likely to
result in loss of the pair's reproductive capability, and may result in loss
of the pair for lack of available feeding or nesting habitat. Opening up or
fragmenting the habitat may similarly affect the species by introducing
increased predation or parasitism.
Incidental take statements exempt action agencies and their permittees from
ESA's section 9 prohibitions if they comply with the reasonable and prudent
measures and the terms and conditions of Incidental take statements.
"(o) EXEMPTION AS PROVIDING EXCEPTION ON TAKING OF ENDANGERED SPECIES -
. . (2) any taking that is in coapliance with the teras and
conditions specified in a written statement provided under subsection
(b)(4)(iv) of this section shall not be considered to be a prohibited
taking of the species concerned.'
Section 7(o)(2) of the Endangered Species Act
4-43
-------
Endangered Species Consultation Handbook—Noveaber 1994
In order to be considered in an incidental take statement, any taking
associated with an agency's action must meet three criteria:
o it must not be likely to jeopardize the continued existence of
listed species or destroy or adversely modify critical habitat,
o it must result from an otherwise lawful activity, and
o it must be incidental to the purpose of the action.
An agency action can meet the first criterion 1f (1) reasonable and prudent
alternatives identified in a jeopardy or adverse modification biological
opinion eliminate the likelihood of jeopardy or adverse nodlflcatlon of
critical habitat or (2) the Services make a finding of no jeopardy or no
adverse modification. When the taking associated with the action violates any
of these criteria, the Services provide a documentation of that fact and a
statement that such taking is prohibited by section 9.
In Issuing an incidental take statement, the Services provide a statement of
anticipated incidental take with reasonable and prudent measures, as
appropriate, to minimize such take. This statement provides an exemption from
the taking prohibitions of section 9 only when the agency and/or applicant
demonstrate clear compliance with the implementing terms and conditions.
These terms and conditions and the reporting requirements in the incidental
take statement are binding on the action agency. When an action agency
declines to take the reasonable and prudent measures and their implementing
terms and conditions or conditions of the license or permit, the incidental
take statement documents this fact(s) and includes a statement that under this
consultation any anticipated taking is prohibited by section 9, and the
applicant must be advised to apply for a permit under section 10(a)(1)(B).
In preparing an incidental take statement, the Services are responsible for
documenting the amount or extent of take anticipated; writing reasonable and
prudent measures with implementing terms and conditions that are clear,
precise, and enforceable; and including reporting requirements that assure
timely compliance with the terms and conditions described.
Standardized statements are provided for each section of the incidental take
statement. For standardized statements for intra-Service consultations on
section 10(a)(1)(B) permits, see page 4-50; involving migratory birds or
marine mammals, pages 4-51,52; and for pesticide consultations, page 4-65.
The following standardized paragraphs are used 1n incidental take statements:
4-44
-------
Endangered Species Consultation Handbook—Huxgdjcr 1994
Introductory paragraph:
Sections 4(d) and 9 of ESA, as amended, prohibit taking (harass, ham,
pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt
to engage 1n any such conduct) of listed species of fish or wildlife
without a special exemption. Harm is further defined to Include
significant habitat modification or degradation that results 1n death or
Injury to listed species by significantly Impairing behavioral patterns
such as breeding, feeding, or sheltering. Harass Is defined as actions
that create the likelihood of Injury to listed species to such an extent
as to significantly disrupt normal behavior patterns which include, but
are not limited to, breeding, feeding or sheltering. Incidental take 1s
any take of listed animal species that results from, but 1s not the
purpose of, carrying out an otherwise lawful activity conducted by the
Federal agency or the applicant. Under the terms of section 7(b)(4) and
section 7(o)(2), taking that 1s incidental to and not Intended as part
of the agency action 1s not considered a prohibited taking provided that
such taking 1s 1n compliance with the terms and conditions of this
Incidental take statement.
The measures described below are non-discretionary, and must be
Implemented by the agency so that they become binding conditions of any
grant or permit issued to the applicant, as appropriate. In order for
the exemption 1n section 7(o)(2) to apply. The (agency) has a
continuing duty to regulate the activity covered by this Incidental take
statement. If the (agency) (1) fails to require the applicant to adhere
to the terms and conditions of the incidental take statement through
enforceable terms that are added to the permit or grant document, and/or
(2) fails to retain oversight to ensure compliance with these terms and
conditions, the protective coverage of section 7(o)(2) may lapse.
When the biological opinion finds jeopardy or adverse modification without a
reasonable and prudent alternative, the introductory statement is as follows:
As the biological opinion finds the proposed action will result 1n
[likely jeopardy to the species/destruction or adverse modification of
critical habitat], and no reasonable and prudent alternative can be
identified, any incidental taking is prohibited by section 9 of ESA.
Special provisions for plants, as appropriate, follow:
Sections 7(b)(4) and 7(o)(2) of ESA do not apply to the Incidental take
of listed plant species. However, protection of listed plants is
provided to the extent that ESA requires a Federal permit for removal or
reduction to possession of endangered plants from areas under Federal
jurisdiction, or for any act that would remove, cut, dig up, or damage
or destroy any such species on any other area in knowing violation of
any regulation of any State or 1n the course of any violation of a State
criminal trespass law. [Include citations to appropriate State laws if
helpful.]
4-45
-------
Endangered Species Consultation Handbook—Noveator 1994
Amount or extent of Incidental take
This section outlines the amount of take anticipated from the action.
Generally, incidental take is expressed as the number of individuals likely to
be taken or the extent of habitat likely to be destroyed or disturbed. When
preparing an incidental take statement, a specific number (for some species,
expressed as an amount or extent, e.g., all turtle nests not found and moved
by the approved relocation technique), or level of disturbance to habitat must
be described. Take can be expressed also as a change in habitat
characteristics affecting the species (e.g., for an aquatic species, changes
In water temperature or chemistry, flows, or sediment loads).
In some situations, the species Itself or the effect on the species may be
difficult to detect. However, some detectable measure of effect should be
provided. For instance, the relative occurrence of the species in the local
community may be sufficiently predictable that Impacts on the community
(usually surrogate species 1n the community) serve as a measure of take, e.g.,
impacts to listed mussels may be measured by an index or other sensusing
technique that is based on surveys of non-listed mussels. In this case, the
reinitiation level describes factors for the non-listed mussels indicating
impact on the listed species, such as an amount or extent of decrease in
numbers or recruitment, or in community dynamics. Similarly, if sufficiant
causal link is demonstrated, the number of burrows affected or a quantitative
loss of cover, food, water quality, or symbionts can establish a measure of
the impact on the species or its habitat and provide the yardstick for
reinitiation.
Also, the time period over which the Incidental take 1s expected to occur 1s
addressed in this section. For example, the statement should distinguish
between an instance in which a permanent loss of two bald eagle nesting
territories will result from construction of a new bridge, and a case in which
the two territories are likely to be abandoned only during the actual
construction period.
Standardized statements:
- Incidental take statement when no take is anticipated:
The Service does not anticipate the proposed action will incidentally
take any (species).
- Incidental take statement for a biological opinion of likely jeopardy when
incidental take is anticipated:
o For opinions with only one reasonable and prudent alternative:
The Service has developed the following Incidental take statement based
on the premise that the reasonable and prudent alternative will be
implemented.
4-46
-------
Endangered Species Consultation Handbook—Hoveater 1994
o For opinions with more than one reasonable and prudent alternative, provide
separate estimates of anticipated take for each reasonable and prudent
alternative, as appropriate:
The Service has developed the following Incidental take statement based
on the premise that reasonable and prudent alternative number XX will be
Implemented.
- Introductory statement for amount and extent of take:
The Service anticipates (number of Individuals or extent of habitat
resulting from take of (species)) could be taken as a result of this
proposed action. The Incidental take Is expected to be 1n the form of
(harm, harass, kill, etc.). [Separately specify each type of take
anticipated.]
[Provide a concise summary of the analysis leading to this
determination.]
OR
The Service anticipates Incidental cake of (species) will be difficult
to detect for the following reason(s): [Incidental take of actual
species numbers may be difficult to detect when the species is wide-
ranging; has small body size; finding a dead or impaired specimen is
unlikely; losses may be masked by seasonal fluctuations in numbers or
other causes (e.g., oxygen depletions for aquatic species); or the
species occurs in habitat (e.g., caves) that makes detection difficult].
However, the following level of take of this species can be anticipated
by loss [quantify] of [surrogate species, food, cover, other essential
habitat element such as water quantity or quality, or symbiont] because:
[provide an explanation].
Effect of the take
The requirement that incidental take not reach the level of jeopardy or
adverse modification is addressed in the biological opinion that finds no
jeopardy/no adverse modification for the action or that provides reasonable
and prudent alternative(s) to avoid jeopardy/adverse modification.
Statement of impact:
o The following statement should be made when the biological opinion finds
likely jeopardy/adverse modification, and no reasonable and prudent
alternative is available.
Because the proposed action 1s likely to jeopardize the continued
existence of [species] or result 1n the destruction or adverse
modification of critical habitat, and because no reasonable and prudent
alternatives have been identified, no authorization of Incidental take
can be provided.
4-47
-------
Endangered Species Consultation Handbook—MovoAer 1994
o The opinion is not likely to result in jeopardy/adverse modification:
In the accompanying biological opinion, the Service determined that this
level of anticipated take 1s not likely to result 1n jeopardy to the
species or destruction or adverse modification of critical habitat.
o The opinion contains reasonable and prudent alternatives:
In the accompanying biological opinion, the Service determined that this
level of anticipated take 1s not likely to result 1n jeopardy to the
species or destruction or adverse modification of critical habitat when
[one of] the reasonable and prudent alternat1ve[s] is Implemented.
Reasonable and prudent measures, and terms and conditions
A reasonable and prudent measure describes actions to minimize incidental
take, e.g., a measure may call for actions like education of employees about
the species, reduction of predation, removal or avoidance of the species, or
monitoring. The terms and conditions set out the specific methods by which
these objectives are to be accomplished, e.g., who 1s to be educated,
when/what/how; the actions necessary to reduce predation; who may remove or
how to avoid the species; or the protocol for monitoring. These detailed
terms and conditions require compliance.
Reasonable and prudent measures
The incidental take statement provides necessary or appropriate measures to
minimize take. These measures should decrease the level of take to the extent
reasonable and prudent. Measures are considered reasonable and prudent when
they are consistent with the proposed action's basic design (e.g., narrowing
of disturbed right-of-way at known species locations), location (e.g.,
temporary storage of equipment or other materials), scope, duration, and
timing. The test for reasonableness is whether the proposed measure would
cause more than a minor change to the project.
For example, the effect of measures costing $10,000 or $100,000 may be
significant for a single family boat dock, but minor for a multi-million
dollar development complex. An example of an unreasonable measure would be a
timing delay to minimize adverse effects if project timing is critical.
Reasonable and prudent measures are to minimize adverse effects on the
specific individuals or habitat affected by the action. Activities resulting
from these measures must occur within the action area, which may be larger
than the footprint of the project itself (see description of action area on
pages 4-14 to 4-18) .
Reasonable and prudent measures are not a substitute for a finding of jeopardy
4-48
-------
Endangered Species Consultation handbook—Movator 1994
or adverse modification. Similarly, discretionary conservation
recommendations under section 7(a)(1) are not a substitute for reasonable and
prudent measures as a means of minimizing the impacts of incidental take.
Standardized introductory paragraph for reasonable and prudent measures for
species other than marine mammals and migratory birds:
The Service believes the following reasonable and prudent measure(s) are
necessary and appropriate to minimize take of (species): [Go on to list
these measures and provide a brief discussion documenting the Services'
analysis of the biological need for, and reasonableness of, these
measures.]
Terns and conditions
Terms and conditions of an incidental take statement include reporting and
monitoring requirements that assure adequate action agency oversight of any
incidental take. The monitoring must be sufficient to determine if the amount
or extent of take is approached or exceeded, and the reporting must assure
that the Services will know when that happens.
The "disposition of individuals taken" portion of the Incidental take
statement distinguishes between injured and killed animals, and tells the
action agency (1) what needs to be done with sick or injured animals to assure
adequate care; (2) how to preserve dead animals to determine the cause of
death, if not known; (3) the procedures for disposing of the animal, including
shipping preserved animals to research facilities; and (4) to notify the
nearest Service Law Enforcement Office when a listed species is taken.
Care should be exercised in developing the incidental take statement and Its
terms and conditions. Consider: (1) any incidental take anticipated must not
be likely to result in jeopardy; (2) the action agency must provide for
monitoring the actual number of individuals taken; (3) review requirements
should determine when the reasonable and prudent measures are not reducing the
effect to the extent anticipated; and (4) the action agency must iranediately
reinitiate formal consultation if the anticipated level of incidental take is
exceeded, and stop the activity causing the take during reinitiation.
Standardized introductory paragraph for terms and conditions:
In order to be exempt from the prohibitions of section 9 of ESA, the
(agency) must comply with the following terms and conditions, which
implement the reasonable and prudent measures described above. These
terms and conditions are non-d1scretionary.
[Go on to list these terms and conditions, including the requirements
for monitoring, reporting, review, and disposition of any specimens.]
Salvage of species and habitat data included as a term and condition: Where
4-49
-------
Endangered Species Consultation Handbook—Noveatoer 1994
practical, an attempt should be made to salvage specimens or habitat data from
areas to be destroyed as a direct or indirect result of the action. For
example, when the Services determine that research would be beneficial to the
species (generally identified by a recovery plan or recovery outline), and a
willing researcher has a permit for that research, the terms and conditions
could call for reasonable allowance to collect biological data on specimens
that would be killed, or information on species' habitat (e.g., the
construction, depth, moisture characteristics of underground burrows).
"Reasonable" is to be defined 1n each case as appropriate to the action, and
should not significantly delay legitimate project activities. For example, if
the action is time sensitive, such as bulldozing a firebreak during a fire,
there may be insufficient time to collect specimens. However, should a long-
term project be proposed, such as development of a housing project, more
extensive opportunities for collection may exist.
Salvaging live specimens may minimize the net adverse effects of an action by
providing Individuals for captive breeding or approved translocation. If dead
specimens can be collected, valuable data may still be obtained, possibly
providing research material in lieu of the need to collect additional
specimens.
Terms and conditions for salvage efforts are explicitly described 1n the
incidental take statement to fully inform the action agency and/or the
applicant of how they are to comply with that statement. Information is to be
provided as to who will do the salvage, where, when, techniques to be
employed, the fate of specimens and data collected, the possible need for
Federal and/or State permits or other documentation to conduct or transfer the
specimens, or guidelines on who to contact for changes in the protocol.
Review requirement included as a term and condition: The anticipated level of
incidental take is to be minimized by the reasonable and prudent measures and
implementing terms and conditions. Thus, a new lowered level of incidental
take is anticipated with these measures in place. To ensure that the measures
are working as anticipated, a review requirement is included as follows:
The reasonable and prudent measures, with their Implementing terns and
conditions, are designed to minimize Incidental take that night
otherwise result from the proposed action. With Implementation of these
measures the Service believes that no more than (number or extent) will
be incidentally taken. If, during the course of the action, this
minimized level of incidental take 1s exceeded, such Incidental take
represents new Information requiring review of the reasonable and
prudent measures provided. The Federal agency must Immediately provide
an explanation of the causes of the taking and review with the Service
the need for possible modification of the reasonable and prudent
measures.
4-50
-------
Endangered Species Consultation Handbook—However 1994
Coordination with section 10 permits
Section 10(a)(1)(A) permits
Determining whether a section 10(a)(1)(A) permit is needed in addition to the
incidental take statement rests on the nature of the proposed action. When
deliberate take is described as part of the proposal in order to minimize
anticipated incidental take, the section 7 serves as the authority for that
take. For example, an agency dealing repeatedly with actions affecting desert
tortoise may make the standard conditions of previous consultations part of
the proposal. This action would not require a separate section 10 permit.
However, when deliberate take for conservation purposes is part of the overall
action being reviewed, a permit application should be processed
simultaneously. For example, a hypothetical forest management plan outlines
all of the potential classes of activities to be carried out on that forest.
The biological opinion and incidental take statement cover the effects of
timber harvest, recreational activities, etc. When that portion of the plan
covering the management of listed and proposed species involves deliberate
(and accompanying incidental) take to facilitate that management, a separate
section 10 permit is required. Coordinating these two activities will enable
the Services to provide all required ESA documents at one time.
Section 10 permits are not required:
o for activities carried out under an approved cooperative section 6
agreement as long as any taking is not reasonably anticipated to result
in (1) the death or permanent disabling of the specimen; (2) the removal
of the specimen from the State where the taking occurred; (3) the
introduction of the specimen so taken, or any progeny derived from such
specimen, into an area beyond the historical range of the species; or
(4) the holding of the specimen in captivity for a period of more than
45 consecutive days. (50 CFR §17.21(c)(5))
o for take activities directed by the terms and conditions of an
incidental take statement in accordance with section 7(o)(2).
When incidental take involves an applicant or licensee, the permitting Federal
agency should be directed to provide a copy of the incidental take statement
to the applicant/licensee, or to include the language of the terms and
conditions in the permit itself. The applicant/licensee then has a document
in their possession at anytime they are involved in an action that may result
in take.
Terms and conditions covering research or other "enhancement" activities
detail the conditions of the research or require a subsequent Service and/or
State review and approval of the research plan. See chapter VI.E. of the
Handbook for Endangered and Threatened Species Permits for conditions included
in section 10 permits.
4-51
-------
Endingtrad Spectea Consultation Handbook—Noveatar 1994
Section 10(a)(1)(B) permits
Permits for incidental take under section 10(a)(1)(B) require an 1ntra-Service
consultation, conducted 1n the same manner as outlined in this chapter except
the incidental take statement 1s governed by section 10(a)(1)(B) to the extent
that mitigation, including off-site compensation not directed at the affected
individuals, may be considered.
The Incidental take statement summarizes and references the terms of the
habitat conservation plan and includes the following standardized language.
Add the verbiage in parentheses when an implementing agreement 1s required to
ensure the terms of the habitat conservation plan are carried out.
Appropriate changes may be made 1n the wording of the following paragraphs
when consulting on any subsequent amendments to the permit.
(a) Reasonable and prudent measures
Any Incidental take of (species) must comply with all the terms and
conditions of the section 10(a)(1)(B) permit (including the provisions
of the Implementing Agreement).
(b) Terms and conditions
A section 10(a)(1)(B) permit, as evaluated 1n this biological opinion,
must be Issued by the F1sh and Wildlife Service.
(The Implementing Agreement for the Habitat Conservation Plan for the
section 10(a)(1)(B) permit must be agreed to by the F1sh and Wildlife
Service.)
Coordination with other wildlife laws
Migratory birds
When dealing with listed migratory birds, the incidental take statement alerts
the action agency that the incidental take statement provided under the
Endangered Species Act does not cover the agency's or applicant's potential
liabilities for take under the more restrictive provisions of the Migratory
Bird Treaty Act. When the terms and conditions are appropriately implemented,
the incidental take statement provided under the Endangered Species Act
represents only an exemption from the taking provision of section 9. The
statement does not absolve the agency or applicant from liability for
penalties under the MBTA. The Office of Migratory Bird Management is
considering a regulatory program addressing incidental take of listed
migratory birds, other than bald eagles. However, until that program is in
place, the following standardized statement is included 1n incidental take
statements involving listed migratory birds.
Standard paragraph for listed migratory birds:
4-52
-------
Endangered Species Consultation Handbook—Nove*er 1994
Notice: While the Incidental take statement provided 1n this
consultation satisfies the requirements of the Endangered Species Act,
as amended, 1t does not constitute an exemption from the prohibitions of
take of listed migratory birds under the more restrictive provisions of
the Migratory Bird Treaty Act.
The Bald and Golden Eagle Protection Act does not contain provision for
incidental take of bald eagles, their eggs or nests. Thus the Services will
not authorize incidental take of bald eagles under ESA. If incidental take of
bald eagles is anticipated, document that take, but add the following
statement 1n the Amount or extent of incidental take section: [Note: This
statement ends discussion of bald eagles in the incidental take statement. In
this particular instance, any appropriate actions to minimize Incidental take
may be addressed in the conservation recommendations section.]
The Incidental take of bald eagles 1s not authorized by the Bald and
Golden Eagle Protection Act. Therefore, such take Is not authorized by
this Incidental take statement.
Marine manuals
The Endangered Species Act alone does not provide authority for the incidental
take of listed marine mammals. Listed, Service-administered marine mammals
currently include the southern sea otter and manatee (the dugong, in U.S.
waters, was proposed in 8/93). Incidental take of such species must conform
with the requirements of both the Endangered Species Act and the Marine Mammal
Protection Act before such take is authorized. Framework regulations at 50
CFR §18.27 and Part 228 establish standards and a process for determining
whether an exception exists for Incidental taking of small numbers of marine
mammals related to a specific activity 1n a specific geographic region. After
a set of area-specific regulations are promulgated for a particular area or
activity, letters of authorization are Issued annually by the NMFS or the FWS,
depending on the species involved, to each person wishing to conduct an
activity that may result in incidental take. Consistent with the Endangered
Species Act and regulations at 50 CFR §402.14(i) (Appendix A), incidental take
statements for marine mammals are not included in formal consultations until
area specific regulations are in effect.
The Marine Mammal Protection Act Amendments of 1994 authorize incidental take
of marine mammals in the form of "harassment" for non-commercial fishing
activities, and permits for death/injury Incidental take for commercial
fishing activities under certain circumstances. Regulations implementing
these amendments are anticipated early in 1995. Further guidance on
standardized statements for these activities will be provided at that time.
Standard paragraph for incidental take of marine mammals: [Before area- or
activity-specific regulations are promulgated:]
The Service 1s not Including an Incidental take authorization for marine
4-53
-------
Endangered Species Consultation Handbook—Moveeber 1994
mammals at this time because the regulations required for Incidental
take of marine mammals 1n this specific area or for this activity have
not been Issued under section 101(a)(5) of the Marine Manual Protection
Act and/or Its 1994 Amendments. Following Issuance of such regulations,
the Service may amend this biological opinion to Include an Incidental
take statement for marine mammals, as appropriate.
After area-specific or activity-specific regulations have taken effect:
Pursuant to section 101(a)(5) of the Marine Mammal Protection Act, as
amended in 1994, and implementing regulations at 50 CFR §18.27, the
following measures are required to be consistent with the total taking
allowable under the area/activity specific regulations at 50 CFR
§18.27(_) [Insert appropriate citation] and to effect the least
practical adverse Impact on the species and Its habitat and on the
availability of the species for subsistence uses: [Cite measures
Identified 1n specific regulations and/or letters of authorization or
permits for commercial fishing]. Pursuant to section 7(b)(4) of the
Endangered Species Act, the following reasonable and prudent measures
are necessary and appropriate to minimize take: [Go on to list the
measures, followed by the standard paragraph for terms and conditions.]
C. Conference Report/Notice
The Services are the Federal agency responsible for determining whether an
action is likely to jeopardize listed species or destroy or adversely modify
designated critical habitat. The Services also may assist action agencies in
making such a preliminary determination for proposed species or proposed
critical habitats, but remains responsible for the final determination of
likely jeopardy or adverse modification to such proposed species or critical
habitats. When the Services preliminarily determine a proposed agency action
presents the likelihood of jeopardy to proposed species or adverse
modification to proposed critical habitat, the action agency should be advised
in writing.
When the proposed action is under consultation, notice of the need to confer
(or, if the action agency requests an informal conference, the conference
report) is included in the consultation package following the incidental take
statement. A finding of "likely to jeopardize" is not required to trigger the
conference procedure if the action agency wishes to initiate a review of
possible effects on a proposed species or critical habitat. The Services will
confer when an agency requests such a conference based on their determination
that the proposed action may affect a proposed species or critical habitat.
When an action agency requests formal conference for an action that also
affects listed species, the analyses of effects may be included in the body of
the biological opinion. However, an incidental take statement for proposed
species is separated from that for listed species, and contains the
standardized language provided in chapter 5.
4-54
-------
Endangered Species Consultation Handbook—Novcaber 1994
D. Conservation Recommendations
"(1) The Secretary shall review other programs administered by him and
utilize such programs in furtherance of the purposes of this Act. All
other Federal agencies shall, in consultation with and with the
assistance of the Secretary, utilize their authorities in furtherance of
the purposes of this Act by carrying out programs for the conservation
of endangered species and threatened species. ..."
Section 7(a)(1) of the Endangered Species Act
When the Services Identify discretionary actions the agency can Implement,
relevant to the proposed action and consistent with their section 7(a)(1)
authority, voluntary conservation recommendations may be Included as a
separate Item In the consultation package. Conservation recommendations serve
several purposes. They can suggest how an action agency can assist species
conservation In furtherance of their responsibilities under section 7(a)(1) of
ESA. They may further minimize or avoid the adverse effects of a proposed
action on listed species or critical habitat; In which case they are applied
after the terms and conditions of the Incidental take statement are
Implemented. They can recommend studies Improving an understanding of a
species' biology or ecology. Wherever possible, these actions should be tied
to tasks Identified In recovery plans.
Conservation recommendations may be provided separately or at the end of the
consultation package, but they are not Incorporated anywhere In the biological
opinion or Incidental take statement where they may be confused with the
opinion or statement Itself. These recommendations are never a precondition
for a subsequent finding of no jeopardy or to reduce anticipated Incidental
take.
Standardized paragraphs for conservation recommendations:
Introductory paragraph:
Section 7(a)(1) of ESA directs Federal agencies to utilize their
authorities to further the purposes of ESA by carrying out conservation
programs for the benefit of endangered and threatened species.
Conservation recommendations are discretionary agency activities to
minimize or avoid adverse effects of a proposed action on listed species
or critical habitat, to help Implement recovery plans, or to develop
information.
Closing paragraph:
In order for the Service to be kept Informed of actions minimizing or
avoiding adverse effects or benefitting listed species or their
habitats, the Service requests notification of the Implementation of any
conservation recommendations.
4-55
-------
Endangered Species Consultation Handbook—Hoveaber 1994
E. Reinitiation Notice
Section 7 regulations outline four general conditions for reinitiating formal
consultation: (a) If new Information reveals effects of the action that may
affect listed species or critical habitat 1n a manner or to an extent not
previously considered, (b) the action 1s modified in a manner causing adverse
effects to listed species or critical habitat not previously considered, (c) a
new species 1s listed or critical habitat designated that may be affected by
the action, or (d) the amount or extent of incidental take is exceeded.
In this section, the Services should Identify situations, if any, that meet
one or all of these four conditions. For example, the Services may Identify
studies in progress whose results may cause a reassessment of the biological
opinion, or proposed listings or critical habitat designations.
The standard closing statement of the formal consultation package is as
fol1ows:
This concludes formal consultation on the act1on(s) outlined 1n the
(request/reinitiation request). As provided In 50 CFR §402.16,
reinitiation of formal consultation 1s required where discretionary
Federal agency involvement or control over the action has been retained
(or 1s authorized by law) and 1f: (1) the amount or extent of Incidental
take 1s exceeded; (2) new information reveals effects of the agency
action that may affect listed species or critical habitat 1n a manner or
to an extent not considered 1n this opinion; (3) the agency action 1s
subsequently modified in a manner that causes an effect to the listed
species or critical habitat not considered 1n this opinion; or (4) a new
species 1s listed or critical habitat designated that nay be affected by
the action. In Instances where the amount or extent of Incidental take
1s exceeded, any operations causing such take must cease pending
reinitiation.
F. Literature Cited
Section 7(a)(2) of ESA requires biological opinions to be based on "the best
scientific and commercial data available." This section identifies the
scientific and commercial data used 1n developing the biological opinion.
4-56
-------
Endangered Species Consultation Handbook—Novafcer 1994
4.6 PROCEDURES FOR MODIFYING BIOLOGICAL OPINIONS AND INCIDENTAL TAKE
STATEMENTS
When the action agency determines (1) the amount or extent of incidental take
has been 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
considered in the original consultation, (3) the action is modified in a
manner causing an effect on listed species or critical habitat not considered
in that consultation, or (4) the action may affect a new listed species or new
designated critical habitat, consultation must be reinitiated. Similarly, if
the Services recognize any of these conditions has occurred, written advice is
provided to the action agency of the need to reinitiate consultation.
Documentation of a reinitiated consultation must be 1n writing, and contains
sufficient information to record the nature of the change in the action's
effects and the rationale for amending analyses of anticipated incidental take
or the reasonable and prudent alternatives or measures (Exhibit 4-4).
Reinitiations involving major changes 1n effects analyses or changes in the
Services' biological opinion are addressed fully in a new consultation.
A reinitiation based on a new species listing or critical habitat designation
is treated as a new consultation, although data in the original opinion may be
referenced when the action has not changed.
4-57
-------
Endangered Species Consultation Handbook—Movstor 1994
Exhibit 4-4 Exanple of salification of an Incidental take stateeent
United States Department of the Interior
FISH AND WILDLIFE SERVICE
FZSH AND WZLDLZFE ENHANCZXZNT
RENO rZSLO STATION
4600 Kietxke LtM, Building C-12S
Reno, llavtdi 89S02-5093
February 7, 1991
File No.t 1-S-90-F-25
Memorandum
To: District K&n*ger, Las Vegas District, U. S. Bureau ef Land
Management, Lao Vegas, Nevada
From: Field Supervisor, Rano Field Station, 0. S. Fish and Wildlife
Service, Reno, Nevada
SubJseti Clark County Regional Flood Control District's Proposed 10-Year
Plan for Flood Control Facilities: Amendment to Opinion
This letter constitutes an amendment to tbe August 29, 1990, Biological
Opinion on tbe Clark County Regional Flood Control District's (District)
10-Year Plan (File Ro.i 1-5-90-F-25). Tbe Fish and midlife Service (Service)
has reeeivod verbal communication from °' the Bureau of Land
Management's Las Vegas District office on January 10, 1991, and copies of
correspondence to your agency from tbe District dated November 26, 1990, and
January 3, 1991, regarding changes in the design of the tipper Las Vegas Wash
Detention Basin (Facility H3-8). Zn addition, that portion of the floodway
(N3-1) extending north of tbe detention basin is proposed to be eliminated.
Ms. Cole requested our determination of whether additional surveys would be
required, and whether formal consultation with the Service should be
reinitiated.
Our review of the alternative proposal indicates that the overall sice of the
new detention basin will be S acres less than that of the original facility.
Furthermore, tbe area to be disturbed by the new proposed dike, located in the
same general area as the floodway, is less than that of the portion of the
floodway that will be eliminated by the alternative design. Therefore it is
likely that tbe level of incidental take that would occur from construction of
N3-B Alt. would not oxceed that which would occur from the original proposal.
Accordingly, the following condition is substituted for Condition I.e. of the
Biological Opinion iosued to your agency on August 29, 1990. The change from
the original condition is underlined.
I.e. Temporary tortoise proof fencing shall be erected around each of
the following facilities prior to beginning construction activities:
N3-B Alt.: N4-8; N5-1, 2, 3, 4, 5, 6; N10-9, 10, 11; N12-9, 10, 11;
C1-4S; C2-46, 47, 48, 49, 52, 53; Sl-59; S2-81; S4-23. 24; S20-17;
S21-28, 29; S22-2S; 4109-28. A qualified biologist shall supervise the
4-58
-------
Endangered Species Consultation Handbook—Mini^ini UM
erection of the fence. All tortoise burrow* and other burrows and dans
that could be occupied by tortoises within the fane* construction xone
¦hall be excavated by hand. All tortoises, including any *998 found,
shall be removed teas the fence construction rone according to the
protocol provided in Appendix C prior to brush reaoval, grading, and
fence Installation.
If you have any questions, please contact at (102) 784-7227 or
ITS 470-5227.
4-59
-------
Endangered Species Consultation Hantfcook—Hovonber 1994
4.7 SPECIAL CONSULTATIONS AND REVIEWS
The following procedures facilitate section 7 compliance for complex programs
or specialized situations.
(A) Conservation Reviews - Section 7(a)(1)
The Secretary shall reviett other programs administered by him and
utilize such programs In furtherance of the purposes of this Act. All
other Federal agencies shall, In consultation with and with the
assistance of the Secretary, utilize their authorities in furtherance of
the purposes of this Act by carrying out programs for the conservation
of endangered species and threatened species listed pursuant to section
4 of this Act.
Section 7(a)(1) of the Endangered Species Act
Comprehensive guidance on implementation of section 7(a)(1) is under
development, and needs to be closely coordinated with the section 7(a)(2)
consultation program. Service offices and other agencies have recognized the
reed for and have requested section 7 reviews of major national programs, such
as the Division of Refuges review of their Refuges 2003 plan for
administration of the National Wildlife Refuge System.
Refuges 2003 outlines the management concepts that will govern how National
Wildlife Refuges are managed. In these situations, a traditional section
7(a)(2) review of effects of the action(s) on listed species would be
difficult, as the magnitude of scope and possible permutations of
activity/species interface cannot be anticipated fully at this time without
establishing appropriate parameters for such impact analyses. What is
possible is an overview of potential effects (e.g., effects of types of
activities on groups of listed species), allowing the Services and agency to
establish protocols for determining when section 7(a)(2) consultations are
appropriate. [Note: Whenever possible, the Services prefer to consult on the
stepped-down management programs where more specific effects on species,
within their range, ecosystem, ecoregion, or other logical comprehensive unit
of measure, can be determined.]
These conservation reviews should ultimately provide the agency with
concurrence on or recommendations for a blueprint for conservation activities
including section 7(a)(2) consultation, section 10 permits, assistance in
developing and implementing recovery plans, and assistance in candidate
monitoring and management programs. Initial efforts will address the
consultation component, and examples will be provided as they become
available. For the time being, such conservation reviews are confined to
national programs (plans, regulations] and will be conducted or coordinated by
the Washington Office.
4-60
-------
Endangered Species Consul tat tori Handbook—Nowatar 1994
(B) National Consultations - Section 7(a)(2)
Increasingly, the Services are requested to consult on an action or series of
actions affecting many species over all or a major portion of the country.
Examples have included: the Animal and Plant Health Inspection Service's
(APHIS) Animal Damage Control program addressing most of that office's
activities nationwide; and the Environmental Protection Agency's (EPA)
pesticide registration program (below). These consultations are addressed by
one or more teams from the Regions, with the lead assigned to one Region or
the Washington Office. National consultations will be signed In the
Washington Office.
These consultations differ from "conservation reviews" (see (A) above) 1n that
(1) specific species affected by the action can be identified; (2) specific
actions affecting these species can be described; (3) the effects of the
action on the species can be determined during consultation; and (4) the
consultation fulfills an agency's obligation under section 7(a)(2).
Successful conduct of these consultations requires the Regions to provide
strong support to their team member, Including funding and staff time to
complete their portion of the work, and the Washington Office to designate a
liaison to facilitate the consultation.
Program-specific protocols developed for recurring national consultations,
like EPA's pesticide registration program, will be included in this section as
they are completed.
Pesticide consultations
This section sets forth the mutually agreed protocol (policies and procedures)
the Services follow to ensure compliance with section 7 of the Endangered
Species Act when coordinating with action agencies regarding the use of
pesticides for pest management activities. The protocol is relevant to
consultation with the Environmental Protection Agency (EPA) on registration of
pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA).
This guidance is intended to facilitate consistency among Regions, field
stations, and the Washington Office, and conformance with the section 7
regulations when conducting consultations and conferences on the registration
and use of pesticides. Appropriate roles and responsibilities are assigned
for the various Service components participating in the consultation process.
A more complete and efficient evaluation of potential impacts on Federally
listed and proposed species is also facilitated.
4-61
-------
Endangered Species Consultation Handbook—boveetwr 1994
Standard procedures for conducting pesticide consultations
As a result of the tremendous Interest 1n this issue exhibited by the
regulated community, pesticide users, and the general public, the Services
must be consistent In Its national, regional, and field office conduct of
pesticide consultations. Because of the potentially far-reaching Impacts of
pesticides on fish, wildlife and plant resources, the Services must provide
the necessary resources to develop biological opinions adequately addressing
these Impacts.
Registration of pesticides 1s an action with geographically broad effects
Involving more than one Region; therefore, most of EPA's pesticide
registration consultations are handled programmatically.
As the action agency responsible for most pesticide registrations, EPA 1s
usually the agency requesting consultation on pesticide activities. These
consultations review the potential Impacts of all registered uses of the
pestlclde(s) on all listed species. EPA may combine the registration of
several pesticides, herbicides, or other compounds Into a single consultation
request based on similarity of chemical action, registered use (such as
mosquito larvlcldes), or other likeness. Occasionally, EPA requests a case-
by-case consultation on a specific pesticide when conditions warrant, such as
when special uses or needs require earlier consultation than would occur on a
programmatic basis.
The FWS Is developing a standing national team consisting of (1) a
coordinator from the Division of Endangered Species' Washington Office (TE),
(2) at least one biologist from each of Regions 1-6, and (3) an Environmental
Contaminants Coordinator from the Division of Environmental Contaminants
(DEC). The DEC coordinator will facilitate appropriate technical review and
Interpretation of toxlcologlcal data. Regional and field office contaminants
specialists will be assigned to provide additional technical assistance to the
team, as determined by the EC Coordinator. National pesticide consultations
coordinated at the Washington level by TE are signed by the Assistant
Director for Trust Resources.
Federal agencies (e.g., the Forest Service) also may request consultation on
activities involving use of specific pesticides. An action involving more
than one Region may require formation of a team representing the affected
Regions. The lead region, generally the Region most affected, prepares the
biological opinion with appropriate Input from other Regions. While
Endangered Species staff have lead for conducting consultations, all
consultations involving registration or use of pesticides are closely
coordinated with appropriate Environmental Contaminants staff. Roles and
responsibilities of Service staff Involved in pesticide consultations are
discussed below.
4-62
-------
Endangered Species Consultation Handbook—However 1994
Responsibilities
Regional Directors are responsible for:
o designating appropriate participants for national pesticide
consultation teams;
o designating appropriate Individuals to provide technical
assistance to national pesticide consultation teams;
o providing the Washington Office with a complete 11st of species
and critical habitats that may be affected by proposed actions
subject to national and multi-regional consultations;
o providing access to available data and/or resources facilitating
consultation; and
o issuing biological opinions when designated the lead region in
multi-regional consultations and when pesticide consultations
occur within a given region under certain special circumstances
(e.g., experimental use permits).
Recognizing the extremely heavy workload associated with conducting pesticide
consultations, Regional Directors are to ensure that participants on the
national pesticide consultation team, and staff assigned to provide technical
assistance, are relieved of other major duties and responsibilities
commensurate with the level of effort needed to complete their consultation
duties.
Responsibilities of national and multi-regional pesticide consultation teams
and the Washington Office are:
Informal consultation phase:
While section 7 regulations only require preparation of biological assessments
for major construction actions, EPA has agreed to provide biological
assessments for pesticide consultations.
A biological assessment, based on the best scientific and commercial data
available, documents the agency's determination of effect and whether formal
consultation or conference is needed. Upon receipt of the agency's biological
assessment, the Endangered Species Coordinator (Washington Office) will
provide a copy to the EC Coordinator, initiating technical review of data and
conclusions provided.
The regulations allow the Services 30 days to provide the action agency a
written response to the findings of a biological assessment. To meet this
deadline, participants in the technical review provide written comments to the
EC Coordinator within 15 days. The length and complexity of many biological
assessments evaluating potential impacts of toxic chemicals may make this
4-63
-------
Endangered Species Consultation Handbook—Movcnber 1994
timeframe Inadequate for the review. The EC Coordinator contacts the TE
Coordinator as soon as possible, but not later than 20 days after receipt of
the assessment, if a request for an extension is needed. The request includes
an approximate completion time.
DEC's role is to (1) provide technical review of the biological assessment and
determine 1f the best scientific and commercial data have been provided by
EPA, (2) provide the team with technical support in determining the chemical
and biological mode of action of the compound(s) under review, (3) review the
draft biological opinion for technical accuracy and comment on the feasibility
of the reasonable and prudent alternatives and measures offered, and (4) aid
the team in evaluating EPA's comments on the draft.
A complete biological assessment includes, but is not limited to, discussion
of the following:
General Information:
o specific definition of terms used to describe use sites, e.g.,
pastureland, wasteland, fallow land, rangeland, non-crop uses;
o a complete, accurate distribution of cropland (at least on the
county level) and/or use sites (with definitions of terms);
o registered uses of pesticides under consideration;
o product labels supporting the registered uses;
o data generated from site visits and field surveys; and
o a comprehensive summary of available technical literature (copies
of scientific studies and literature supporting the risk
assessment, if available).
Risk Assessment Information:
o the complete range of exposure pathways (e.g., dietary,
respiratory, dermal);
o potential degree of exposure of affected species, their symbionts,
host and pollinator species, food sources, etc.;
o persistence of the substance in aquatic and terrestrial
environments;
o toxicity of the pesticide and its metabolites to all life stages
of affected species;
o history of poisonings;
4-64
-------
Endangered Species Consultation Handbook—Noveafcer 1894
o bioaccumulation;
o interference with habitat, symbionts, or other special
relationships; and
o discussion of lethal and sublethal effects, effects of
metabolites, chronic toxicity and exposure, environmental fate and
transport, and effects of multiple applications.
Finally, EPA should make a "no effect" or "may affect" finding for each
species.
Concurrence phase:
Upon receipt of the biological assessment, the national team leader evaluates
the document and determines, in conjunction with the team members and
technical review team, the amount of time required for adequate review. If
more than 30 days is needed for the review, an acceptable timeframe is
negotiated with the action agency. A joint review of the document is
undertaken as expeditiously as possible, and any requests for additional
information and recommended revisions are made through TE for national
consultations or the Regional Director for multi-Regional consultations.
Within 30 days of receiving a complete biological assessment (or other
timeframe agreed upon by the Service and the action agency), the national team
forwards its recommendation of concurrence or nonconcurrence with the action
agency findings to the Assistant Director for Trust Resources. The multi-
Regional team submits Its recommendations to the lead Regional Director.
Upon receipt of the national team recommendation, the Washington Office (TE)
prepares a response to the action agency discussing the outcome of the Service
review and, in the case of non-concurrence, providing rationale supporting the
Services' position. The response notifies the agency of the need to initiate
formal consultation, as appropriate.
Formal consultation phase:
Section 7 regulations allow 90 days to conduct formal consultation and an
additional 45 days to complete the biological opinion, for a total of 135 days
from receipt of the Initiation request to delivery of the consultation. Given
the workload involved in conducting programmatic and multi-Regional pesticide
consultations, these consultations generally cannot be completed within the
regulatory timeframe. TE negotiates an acceptable timeframe for completing
national pesticide consultations and requests extensions, as necessary, based
on recommendations from the consultation coordinator. The lead Regional
Director requests appropriate extensions for multi-Regional consultations.
4-65
-------
Endangered Species Consultation Handbook—Novcater 1994
Draft and final biological opinions are transmitted to the action agency
through the Washington Office (TE) for national consultations, and through the
lead Regional Office for multi-Regional consultations, except when a multi-
Regional opinion is signed by the Assistant Director for Trust Resources.
Formal pesticide consultations follow the format provided in this chapter.
Draft and final biological opinions associated with national pesticide
consultations and multi-Regional biological opinions signed by the Assistant
Director receive joint TE/DEC review before they are sent to the action
agency.
Procedures for pesticide consultations with special conditions
Consultation requests may be directed to specific Regional and field offices
for actions involving emergency exemptions (FIFRA section 18), Special Local
Needs (FIFRA section 24 (c)), Experimental Use Permits (FIFRA section 5), and
field study proposals (FIFRA section 3(c)(2)(B)).
Pesticide registrants, parties acting on behalf of the registrants, or
pesticide State Lead Agencies frequently contact Regional and field offices
directly regarding these pesticide actions. Through EPA, they often request
biological opinions to facilitate the use of particular chemicals, without
providing adequate time to fully evaluate proposed actions. In many
instances, the Services lack access to complete information regarding the
toxicity and environmental fate of pesticides under consideration and other
data necessary to assess potential impacts on listed species. TE and DEC will
continue to work with EPA to develop appropriate procedures to address these
specific situations. In the interim, Regions and field offices use the
following procedures.
o Only EPA may initiate formal consultation, and EPA is involved in
any informal consultations unless a non-Federal representative is
formally designated. The consultation request contains explicit
information identifying the location of the proposed action, and
an ecological risk assessment evaluating pertinent toxicity,
exposure, and environmental chemistry data needed to determine
potential impacts on listed species.
o Requests for expedited consultations are evaluated on a case-by-
case basis and accommodated to the maximum extent practicable and
consistent with existing priorities. The Regional Director is
alerted when Regions and field offices detect a pattern of
requests for emergency or expedited consultations for certain
chemicals and uses. The Regional Director may then elevate the
matter to the ATS, with appropriate documentation. ATS and TE
will work with EPA headquarters to resolve the matter.
4-66
-------
Endangered Species Consultation Handbook—Wovo*cr 1994
o Emergency consultation provisions of the section 7 regulations (50
CFR §402.05) apply to situations involving acts of God, disasters,
casualties, national defense or security emergencies. When an
emergency use of pesticides is necessary (e.g., pesticides are
necessary to prevent an imminent human disease outbreak),
consultation may be conducted informally through alternative
procedures determined to be consistent with the requirements of
section 7. (See emergency consultation procedures in chapter 7)
Standardized statements for pesticide analyses only
Terms and conditions:
Disposition paragraph for pesticide situations:
The U.S. F1sh and Wildlife Service (1n the Region of the species'
occurrence) must be notified by (action agency) Immediately of any dead
or sick individuals found 1n or adjacent to pesticide-treated areas.
Cause of death or Illness, if known, should be conveyed to these
offices: [List appropriate Regional contact].
The Service has provided a protocol for the handling of dead. Injured or
111 listed species for pesticide analysis. When the (agency) suspects a
species has been taken in violation of label restrictions, the
1nc1dent(s) shall be reported to the U.S. F1sh and Wildlife Service,
Division of Law Enforcement or their designee in the Region in which the
species 1s found. Instructions for proper handling and disposition of
such specimens will be issued by the Division of Law Enforcement.
[Include Law Enforcement contacts for appropriate Reg1on(s)].
[The referenced protocol for pesticide situations can be found in Appendix F.]
Monitoring for pesticides (EPA or FDA):
The agency shall monitor incidental take to ensure compliance with
anticipated take levels as required by SO CFR §402.14(1)(3). The
Service believes that a label or bulletin requirement for users to
immediately report any dead or sick listed species found in or adjacent
to pesticide use areas would assist the (Environmental Protection
Agency/Food and Drug Administration) 1n meeting this requirement. Such
a requirement provides an Incentive to the user to report such Incidents
to remain exempt from section 9 taking provisions. However, the Service
also believes the agency should strengthen Its Information gathering
base by obtaining assistance from State or Federal wildlife or plant
agencies, the Extension Service, Department of Agriculture cooperatives
or educational or private organizations in reporting possible listed
species take from pesticides.
4-67
-------
Endangered Species Consultation Handbook—Novcafeer 1994
Hater ouaHtv consultations
This section is reserved pending ongoing negotiations on consultation
procedures for this EPA program.
Other national consultations
In the future, several other programs will probably generate national
consultation requests. For example, State programs to assume administration
of section 404 of the Clean Water Act may require a programmatic conservation
review and/or development of specific national consultation procedures.
(C) Regional or Ecosystem Consultations
Action agencies occasionally request multi-action and "ecosystem-based"
consultations. These consultations may be step-downs of conservation reviews
or national consultations. In these instances, a lead Region or field office
may be designated. Regional and ecosystem biological opinions may be signed
at the Service's Regional Office or State Office level, as appropriate.
Examples of these consultations Include:
Regional
Ecosystem:
APHIS' program to eradicate the boll weevil in southern cotton
growing states, to control grasshoppers and crickets in western
states, or to control Mediterranean fruit flies in the Southwest.
A Region 6-led consultation on the continuing operations of all
Corps dams on the Missouri River and their effects on listed
species within that aquatic ecosystem (bald eagle, piping plovers,
Interior least terns and the pallid sturgeon).
A Region 3 consultation on operation of Corps facilities along the
breadth of the Upper Mississippi River.
A Region 2-led consultation with the Bureau of Reclamation on
regulations to implement water entitlements on the Lower Colorado
River.
o A Region 1-led consultation with the BLM on grazing activities
throughout the range of the desert tortoise, and other program
activities within the proposed critical habitat.
Consideration should be given to conducting ecosystem-based consultations,
particularly in areas undergoing large HCPs, with the Federal agencies whose
future activities may affect one or more species within a regional planning
area. This type of consultation would involve programmatic review of the
4-68
-------
Endangered Species Consultation HuxftMcfc—NovaAer 1994
agencies7 activities and would be most effective 1f conducted simultaneously
with development of the HCP. Such an approach could Involve a single lead
agency, 1f there is a predominant Federal agency influence (e.g., the Bureau
of Reclamation in the Central Valley of California), or could involve a
limited number of agencies representing Federal programs in the planning area.
Such simultaneous consideration of both Federal and nonFederal programs could
(1) assist 1n assessing overall effects on a species/group of
species/ecosystem from multiple actions; (2) result 1n a better determination
of the respective roles of all the parties in conserving the
species/ecosystem, (3) assist 1n determining the priority of all proposed
actions for use of any "resource cushion" that may exist, and (4) demonstrate
that all parties are being provided equal consideration at equal speed
(programmatic consultations do not have applicants and are subject to mutually
agreed timeframes).
The Region 2 consultation on the Lower Colorado may be conducted along with an
HCP proposed to cover nonFederal activities and candidate species.
4-69
-------
Endangered Species Consultation Handbook—Noratar 1994
4.8 HANDLING CLASSIFIED DOCUMENTS
National security classified documents used during consultation require
specialized handling.
o Only personnel trained and qualified to handle such documents may
do so. Security clearances are regularly checked to determine
they are still current.
o If classified information 1s included 1n the biological opinion,
that portion of the document is covered by a derivative
classification (and must be narked and protected accordingly), and
can be reviewed only by appropriate personnel with the required
security clearance who have a need to know.
o All classified documents are to be maintained 1n files secured for
their level of security. See Departmental regulations for
handling of such files.
o Classified information is exempt from disclosure under FOIA.
When classified documents or information will be required for a consultation,
check with the Regional Office and the Department's Security Office 1n
Washington, DC [(202) 208-4108] for current procedures and names of personnel
with appropriate security clearances who are authorized to review the
classified information.
4.9 PROTECTION OF CONFIDENTIAL BUSINESS INFORMATION
During the course of consultations, some of the Information received or
gathered may contain trade secrets and commercial or financial information
that is prohibited from release by Federal statute. Further, under the
Freedom of Information Act (FOIA) information may be exempted if its release
would cause competitive harm to the submitter, would impair the Government's
ability to gather necessary information in the future, or would interfere with
compliance or program effectiveness. If the Information was provided to the
Services by the action agency, requests for access to, or copies of, the
information generally should be referred, under 43 CFR 2.15(c), to the agency
that collected the information for a determination concerning release. If the
Services obtained the information directly from the businesses or
organizations (including sole proprietorships), the Services will generally
need to make a determination concerning release in accordance with the FOIA
(Part 203 of the Fish and Wildlife Manual). Contact your Regional FOIA
Coordinator or the Services' FOIA Officer for assistance in processing such
requests.
4-70
-------
Endangered Species Consultation Handbook.--Mwtoer 1994
4.10 DISTRIBUTION OF FINAL FORMAL CONSULTATION DOCUMENTS
Upon completion, the formal consultation package is provided promptly to the
action agency and the applicant, if any. Any designated non-Federal
representative, other than the applicant, involved in the informal stage of
the consultation, is not a party to the formal consultation. Except by prior
agreement, the action agency provides copies to other interested parties. For
example, EPA is responsible for distributing pesticide consultation documents.
However, if this cannot be encouraged, the Services provide copies upon
request, after sufficient time (10 working days) has passed to ensure the
action agency has received the consultation.
Exceptions to this waiting period include providing copies simultaneously to
appropriate State agencies when there is a joint Federal-State consultation
action, and the requirement to send electronic copies of all formal, early,
and emergency consultation and conference documents (just the final product,
not the administrative files) to the Division of Endangered Species in
Washington (cc Hail box - R9FWEDES).
Consultations containing classified material or confidential business
information follow procedures laid out in 4.8 and 4.9 above.
4-71
-------
Endangered Species Consultation Hwicfcooit 1994
CHAPTER 5 - CONFERENCE
'Each Federal agency shall confer with the Secretary on any agency
action which is likely to jeopardize the continued existence of any
species proposed to be listed ...or result in the destruction or
adverse modification of critical habitat proposed to be designated for
such species. This paragraph does not require a limitation on the
comitment of resources as described in subsection (d).'
Section 7(a)(4) of the Endangered Species Act of 1873
5.1 THE NEED FOR CONFERENCE
Section 7(a)(4) Mas added to the ESA to provide a mechanism for identifying
and resolving potential conflicts between a proposed action and proposed
species at an early planning stage. While consultations are required when the
proposed action may affect listed species, a conference Is conducted when the
proposed action may present the likelihood of jeopardizing the continued
existence of a proposed species or destroying or adversely modifying proposed
critical habitat. However, Federal action agencies may request a conference
on any proposed action that may affect proposed species or proposed critical
habitat. The Services also can request a conference after reviewing available
information suggesting a proposed action 1s likely to jeopardize proposed
species or destroy or adversely modify proposed critical habitat.
5.2 INFORMAL CONFERENCE
Conferences may involve informal discussions among the Services, the action
agency, and the applicant (1f any). During the conference, the Services
advise the action agency on ways to avoid or minimize adverse effects to
proposed species or proposed critical habitat (Figure 5-1).
(A) Conference Report
Following informal conference with the action agency, the Services issue a
conference report containing recommendations for reducing adverse effects.
These recommendations are advisory because the action agency is not prohibited
from jeopardizing the continued existence of a proposed species or destroying
or adversely modifying proposed critical habitat until the species is listed
or critical habitat is designated. However, as soon as a listing becomes
effective, the prohibition against jeopardy or adverse modification applies
regardless of the action's stage of completion. Therefore, action agencies
should treat the conference report's recommendations seriously (Figure 5-2).
5-1
-------
Endangered Species Consultation Handbook Munndiw 1994
(B) Conference Notice
If the Services determine an action 1s likely to jeopardize a proposed species
or destroy or adversely modify proposed critical habitat, 1t notifies the
action agency of a need for conference. This takes the form of a letter or
memorandum 1f the action Is likely to jeopardize only a proposed species or
adversely modify a proposed critical habitat. When the Services are already
1n consultation on listed species or designated critical habitats, a
conference notice 1s appended after the Incidental take statement.
Figure 5-1 Conference processes *
Hay affect or likely to
result In jeopardy or
adverse modification for
proposed species/critical
habitats (determined by
Federal action agency).
Informal Conference
-0R-
-0R-
Mkely to result 1n jeopardy
or adverse modification for
proposed species/critical
habitats (determined by
the Service]
Formal Conference
Conference Report
(Advisory recommendations)
Conference Opinion
(Conducted like a formal
consultation**)
Informal discussions can occur anytime during the process.
Incidental take statement does not become effective unless the Services
adopt the opinion once the listing Is final.
5-2
-------
Endangered Species Consultation Handbook—KoMter 1994
5.3 FORMAL CONFERENCE
Action agencies may request formal conference on a proposed action. Although
the regulations (50 CFR §402.10(d)) permit the Services to decide whether
formal conference is appropriate, 1t should provide the requested conference
unless a major uncertainty prevails, such as lack of sufficient data on which
to base a thorough determination of effects.
Formal conferences follow the same procedures as formal consultation. The
opinion issued at the end of a formal conference 1s called a conference
opinion. It follows the contents and format of a biological opinion,
however, the incidental take statement provided with a conference does not
take effect until the Services adopt the conference opinion as a biological
opinion on the proposed action after the species is listed.
(A) Timeframes of Formal Conferences
Section 7 regulations provide no specific schedule for conferences. However,
by policy, formal conferences will follow the same timeframes as formal
consultations. The timing of a formal conference can be affected by the
finalizing of a listing package. If a listing proposal is made final during
the conference, and the proposed action still may affect the species, then the
formal conference ends and formal consultation begins. The subsequent formal
consultation timeframes begin with the request from the action agency for
formal consultation.
(B) Format of Conference Opinion
Stand-alone conference
A stand-alone conference opinion addresses only proposed species or proposed
critical habitat, and has the same format and contents as a final biological
opinion (chapter 4). A sample of a stand-alone conference opinion can be
found in Appendix B, with modified standardized statements for formal
conference including the following:
In jeopardy or adverse modification opinions:
Based on the foregoing analysis, the Service concurs with the agency
that the (proposed action) 1s likely to (jeopardize the continued
existence of the proposed species and/or destroy or adversely modify the
proposed critical habitat). While the ESA does not preclude an agency
from taking an action with such adverse effects on a proposed
(species/critical habitat), the (agency) Is realnded that 1f the
(species 1s 11sted/cr1t1cal habitat 1s designated) prior to the
completion of the action or while (agency) still maintains any
discretionary authority relative to the action the (agency) will be
required to insure against such adverse effects. The (agency) may be
required to modify or suspend the action at that tine pending resolution
of the requirement to formally consult under section 7. Consequently,
5-3
-------
Endangered Species Consultation Handbook tomtir 1994
the Service advises (the agency) to consider Implementing the following
reasonable and prudent alternatlve(s).
In the Incidental take statement:
The prohibitions against taking the species found 1n section 9 of the
ESA do not apply until the species 1s listed. However* the Service
advises the (agency) to consider Implementing the following reasonable
and prudent measures. If this conference opinion 1s adopted as a
biological opinion following a listing or designation, these measures,
with their implementing terns and conditions, will be nondlscretlonary.
Once the proposed species or critical habitat listing 1s made final, the
action agency writes the Services requesting that the conference opinion be
confirmed as a biological opinion.
Conference included in a formal consultation
When both listed and proposed species or critical habitats are affected by a
proposed action, the Services advise the action agency of the presence of the
proposed species or proposed critical habitat and determines whether the
agency wants them considered during the formal consultation. If the agency
does not, the Services may include a conference notice in the consultation.
However, 1f they are considered, the analyses for these species/critical
habitat are included in the same sections as the listed species, using the
standardized statements in 5.2(B)(1). A sample of a combined
formal/conference consultation can be found in Appendix B.
(C) Confirmation as a Formal Consultation
Requests for Service confirmation of a conference opinion must be in writing.
The Services must respond within 45 days, and, within that timeframe, may
adopt the conference opinion as the biological opinion issued through formal
consultation if no significant changes have occurred in the proposed action or
the information used in the conference. When the conference opinion is adopted
in this manner, it satisfies an action agency's section 7 consultation
requirements. If the Services deny the confirmation request, 1t advises the
action agency to initiate formal consultation unless the "may affect"
situation has been eliminated.
The standard closing statement for formal conferences is as follows:
This concludes the conference for (action). You may ask the Service to
confirm the conference opinion as a biological opinion Issued through
formal consultation If the (species 1s listed or critical habitat is
designated). The request must be 1n writing. If the Service reviews
the proposed action and finds that there have been no significant
changes 1n the action as planned or In the Information used during the
conference, the Service will confirm the conference opinion as the
biological opinion on the project and no further section 7 consultation
5-4
-------
Endangered Species Consultation Hamtnok—Momidwr 1994
will be necessary.
After (listing of the (species) as endangered/threatened and/or
designation of critical habitat for (species)) and any subsequent
adoption of this conference opinion, the Federal agency shall request
reinitiation of consultation 1f: (1) the amount or extent of Incidental
take 1$ exceeded; (2) new 1nforaat1on reveals effects of the agency
act1oa»that nay affect the species or critical habitat In a Banner or to
an extent not considered In this conference opinion; (3) the agency
action 1s subsequently nodi fled In a Banner that causes an effect to the
species or critical habitat that was not considered In this conference
opinion; or (4) a new species Is listed or critical habitat designated
that aay be affected by the action.
The above paragraph 1s needed for conference opinions on proposed species
only.
The Incidental take statement provided 1n this conference opinion does
not become effective until the species 1s listed and the conference
opinion 1s adopted as the biological opinion Issued through formal
consultation. At that time, the project will be reviewed to deternlne
whether any take of the (spedes/habltat) has occurred. Modifications
of the opinion and Incidental take statement may be appropriate to
reflect that take. No take of the (species/habitat) may occur between
the (listing of the (species) and the adoption of the conference opinion
through formal consultation, or the completion of a subsequent formal
consultation.
5-5
-------
Endugarad Spectu Consultation Hudliu* HihimUii 1994
Figure 5-2 Comparison of the conference and consultation provisions of the
Endangered Species Act
Conference
Consultation
Authority
When required.
§7(a)(4)
Federal action to fund,
authorize or carry out
an action Is likely to
jeopardize proposed
species or destroy or
adversely modify proposed
critical habitat.
17(a)(2)
Federal action to fund,
authorize or carry out
an action may affect listed
species or designated
critical habitat.
Types of service
Informal conference -
informal discussions
resulting in advisory
recommendations on ways
to minimize or avoid
adverse effects, avoid
jeopardy, or adverse
modification. If the
species 1s listed or
the critical habitat is
designated before the
action is completed, the
need for formal consul-
tation must be determined.
Informal consultation -
Informal discussions
resulting In advisory
recommendations on ways
to avoid adverse effects.
If adopted, may lead to a
concurrence that the
action is not likely to
adversely affect the
spec1es/hab1tat. ESA
obligation 1s completed, based
on the Services' concurrence.
Formal conference -
at the agency's request,
and Service concurrence,
the formal process for
consultation will be
followed, resulting in
an opinion that can
stand as the biological
opinion for the action
if no significant new
information or change
in the action develops.
The incidental take
statement is not effec-
tive unless the Services
adopt the conference
opinion once the proposed
species is listed
Formal consultation -
a formal process with
regulated timeframes,
that results in development
of a biological opinion
and incidental take
statement.
5-6
-------
Endangered Spactd Consultation Hudaok—Mu»i«*wr 1994
Conference
ConsultatIon
Agency
responsibilities
Irreversible and
irretrievable
commitment of
resources precluding
formulation or
implementation of
reasonable and
prudent alternatives
- §7(d)
Incidental Take
Formal conference -
None, but a prudent agency
would adopt any reasonable
and prudent alternatives
and incidental take terms
and conditions 1f the
conference opinion 1s
expected to be adopted
as the biological opinion
following listing.
Not applicable,
but a prudent agency
would not make such a
resource commitment
if the conference opinion
is to be adopted as the
biological opinion
following listing.
Informal conference -
Not required.
Formal consultation -
Adopt the reasonable and
prudent alternatives and
Incidental take terms and
conditions, or do not under-
take the action, or apply
for an exemption.
Cannot be made between
the "may affect" finding
and conclusion of formal
consultation.
Informal consultation
Not required.
Formal conference - Formal consultation -
Required to be addressed Required (may be zero)
in the conference opinion except for plant species.
but not effective until
adopted by the Services
after the species 1s
listed.
5-7
-------
Endangered Species Consultation Handbook—Noveatar 1994
CHAPTER 6 - EARLY CONSULTATION
"... a Federal agency shall consult with the Secretary on any
prospective agency action at the request of, and in cooperation with,
the prospective permit or license applicant if the applicant has
reason to believe that an endangered species or a threatened species
may be present in the area affected by his project and that
implementation of such action will likely affect such species."
Section 7(a)(3) of the Endangered Species Act
6.1 ELIGIBILITY FOR EARLY CONSULTATION
Section 7(a)(3) of the ESA was added in the 1982 amendments, and is
addressed in section 402.11 of the regulations. Early consultations are
intended to reduce the potential for conflicts between listed species or
critical habitat and proposed actions. Early consultation is an optional
process that occurs before a prospective applicant files an application for
a Federal permit or license, frequently referred to as pre-application
(Figure 6-1). To qualify, a prospective applicant must:
o provide a definite proposal outlining the action and its
effects; and
o certify that he or she intends to implement the proposal if it
is authorized.
If the prospective applicant provides the action agency with this
information in writing, the ESA requires the action agency to initiate
early consultation with the Services. This request must be in writing and
contains the same information required for formal consultation (50 CFR
§402.14(c)). Action agencies conducting an early consultation use the same
procedures and have the same responsibilities as they do for formal
consultations. Although early consultation is conducted among the Services
and the action agency, the prospective applicant should be involved
throughout the process.
A long "early consultation" example (Shorelands project in San Francisco
Bay) is included in Appendix C.
6-1
-------
Endangered Species Consultation Handbook—*ova*er 1994
Figure 6-1. Early Consultation Process
Permit or license applicant believes action
may affect listed species or critical habitat
Written certification to action agency that:
(1) has definite proposal and outlines action and
effects and (2) will implement proposal, if authorized
~
Major construction activity
I I
~ ~
No Yes
Conducts biological
assessment
~ ~
Federal agency initiates early
consultation with the Service
Service issues preliminary biological
opinion and incidental take statement,
same timeframe as formal consultation
~
Permit or license applicant applies
to action agency for permit or license
Action agency requests confirmation of
preliminary biological opinion from the Service
~
Service written non-confirmation
with request that action agency
~ initiate formal consultation
Service written
confirmation
Action agency initiates
formal consultation
(45 days) ~
Service issues biological opinion
and incidental take statement
¦+ Consultation process terminated
6-2
-------
Endangered Species Consultation Handbook—kovafar 1994
6.2 PROCEDURES
"(2) Consultation under subsection (a)(3) shall be concluded within
such period as is agreeable to the Secretary, the Federal agency, and
the applicant concerned.'
Section 7(b)(2) of the Endangered Species Act
By policy the procedures and timeframes for early consultation are the same
as those for formal consultation (chapter 4). The action agency's request
for initiation of early consultation must be accompanied by the information
described in 50 CFR §402.14(c). If the prospective activity Involves a
major construction activity, the action agency must prepare a biological
assessment before initiating early consultation.
Preliminary biological opinions prepared for early consultations are nearly
identical to biological opinions prepared for formal consultations because
they can be confirmed as a final biological opinion once the prospective
applicant submits a permit application to the action agency. The major
difference between a preliminary biological opinion and a final biological
opinion lies in the incidental take statement, which 1s not effective until
the early consultation is confirmed as a formal consultation. A sample of
an early consultation document can be found in Appendix B, with modified
standardized statements Including the following:
Closing of incidental take statement:
Because the proposed action Is likely to have adverse effects on
listed species, the Service has Included an Incidental take statement
pursuant to section 7(b)(4) of the ESA. However, because this 1s an
early consultation on the prospective action, this Incidental take
statement does not eliminate the (agency)'s liability under the
taking prohibitions of section 9 of the ESA.
Instead, this statement provides your agency with foreknowledge of
the terms and conditions that will be required 1f this prospective
application is filed with your agency. These reasonable and prudent
measures and Implementing terms and conditions become effective only
after the Service confirms the preliminary biological opinion as a
final biological opinion on the prospective action.
6-3
-------
Endingerod Species Consultatton Handbook—Mon—iwi 1994
6.3 CONFIRMATION AS A FINAL BIOLOGICAL OPINION
"(B) Consultation under subsection (a)(3) of this section, and an
opinion issued by the Secretary incident to such consultation,
regarding an agency action shall be treated respectively as a
consultation under subsection (a)(2) of this section, and as an
opinion issued after consultation under such subsection, regarding
that action If the Secretary reviews the action before It is
commenced by the Federal agency and finds, and notifies such agency,
that no significant changes have been made with respect to the action
and that no significant change has occurred regarding the information
used during the initial consultation."
Section 7(b)(3)(B) of the Endaagarad Spec las Act
At the conclusion of an early consultation, the Services Issue a
preliminary biological opinion that has the same format and contents as a
final biological opinion. Once the prospective applicant formally applies
for a permit or license from the action agency, and before final action 1s
taken on the application, the action agency writes the Services to request
confirmation of the preliminary biological opinion as a final biological
opinion. Within 45 days, the Services confirm or deny the preliminary
opinion as final if there are no significant changes in the proposed action
or the information used 1n the early consultation. If the Services confirm
the preliminary opinion as final, that action satisfies the action agency's
section 7 consultation requirements. If the Services deny the request, It
asks the action agency to initiate formal consultation. To make the action
agency aware of the opportunity to confirm the early consultation the
following closing paragraph is used:
This concludes early consultation for the (action). You nay ask the
Service to confirm this preliminary biological opinion as a final
biological opinion on the prospective action once you receive the
permit application from the prospective applicant. The request must
be 1n writing. If the Service reviews the proposed action and finds
that there are no significant changes 1n the action as planned or 1n
the information used during the early consultation, 1t will confirm
the preliminary biological opinion as a final biological opinion on
the project and no further section 7 consultation will be necessary
except when one of the following criteria for reinitiation 1s met:
(I) the amount or extent of Incidental take 1s exceeded; (2) new
information reveals effects of the agency action that may affect
listed species or critical habitat 1n a manner or to an extent not
considered 1n this opinion; (3) the agency action is subsequently
modified 1n a manner that causes an effect on the listed species or
critical habitat that was not considered 1n this opinion; or (4) a
new species Is listed or critical habitat designated that may be
affected by the action. When the amount or extent of Incidental take
is exceeded, any operations causing such take must cease pending
reinitiation.
If the Service does not confirm this preliminary biological opinion
as a final biological opinion on the prospective action, the (agency)
6-4
-------
Endangered Species Consultation Handbook—Hoveatoer 1994
1s required to Initiate formal consultation with the Service.
6-5
-------
Endangered Species Consultation Handbook—Mova&er 1994
A sample letter to prospective applicants about early consultation rights.
Dear :
This responds to your letter of , , concerning the upcoming
proposed experimental use of . This agricultural
chemical was previously used in [State] under the U.S. Environmental
Protection Agency's (EPA) Experimental Use Permit (EUP) -EUP- .
We have enclosed a general list of all endangered, threatened, and proposed
species in [State], organized by county, for planning purposes. When
specific test plots have been designated, EPA should consult with this
office pursuant to section 7(a)(2) of the Endangered Species Act of 1973,
as amended, prior to the issuance of the EUP for .
The enclosed list constitutes technical assistance only. It does not
fulfill EPA's requirements pursuant to section 7 of the Endangered Species
Act of 1973, as amended; only EPA or their non-Federal designee can fulfill
those requirements. By copy of this letter, EPA's Office of Pesticide
Programs is being made aware of their responsibility to consult with the
Fish and Wildlife Service to insure that any action it authorizes, funds,
or carries out is not likely to jeopardize the continued existence of
listed species or result in destruction or adverse modification of critical
habitat. We hope the resulting dialogue between EPA and the FWS will
provide registrants and permittees with better guidance on compliance with
the Endangered Species Act. If EPA chooses not to consult, the FWS cannot
be certain that EPA, and your project, has complied with the provisions of
the Endangered Species Act.
Nevertheless, you should be aware that, pursuant to section 7(a)(3) of the
Endangered Species Act, you have certain rights as an applicant for a
Federal permit or license. Section 7(a)(3) and implementing regulations at
50 C.F.R. §402.11 establish a process called "early consultation", which
was specifically designed to reduce the likelihood of conflicts between
listed species or critical habitat and prospective actions such as yours.
Although the consultation would be between EPA and the FWS, your office can
be involved throughout the early consultation process.
Copies of the specific regulations pertaining to early consultations are
enclosed. If you have reason to believe that your proposal, which will
eventually be included in an application for Federal agency approval, may
affect listed species or critical habitat, you can ask the Federal agency
issuing a permit or license (in this case it is EPA) to enter into early
consultation with the FWS.
Your request must be in writing and must certify that: (1) you have a
definitive proposal outlining your action and its effects, and (2) that you
intend to carry out your proposal if it is authorized. When EPA receives
your proposal, they are required by the Endangered Species Act to initiate
early consultation with the FWS.
If you have questions regarding our comments, please contact [Biologist] at
6-6
-------
Endangered Species Consul tat ton Handbook—Norater 1994
CHAPTER 7 - EMERGENCY CONSULTATION
7.1 THE NEED FOR EMERGENCY CONSULTATION
Section 7 regulations recognize that an emergency (natural disaster or
other calamity) sometimes requires expedited consultations (50 CFR
§402.05).
At such times the requesting agency feels a sense of urgency that makes
additional administrative work burdensome. Emergency consultations should
be handled with as much understanding as possible while ensuring that
anticipated actions will not violate sections 7(a)(2) or 7(d). Emergency
consultation procedures allow action agencies to incorporate endangered
species concerns into their actions during the response to an emergency.
An emergency is a situation involving an act of God, disasters, casualties,
national defense or security emergencies, etc., and includes response
activities that must be taken to prevent imminent loss of human life or
property. Predictable events, like those covered in Emergency Use Permits
issued by the Environmental Protection Agency for pesticide applications,
usually do not qualify as emergencies under the section 7 regulations
unless there is a significant unexpected human health risk.
7.2 PROCEDURES FOR HANDLING EMERGENCY CONSULTATIONS
(A) Initial Contact by the Action Agency
The initial stages of emergency consultations usually are done by telephone
or facsimile, followed as soon as possible by written correspondence --
within 48 hours if possible so the Services can ensure an accurate record
of the telephone contact. This record also provides the requesting agency
with a formal document reminding them of the commitments made during the
initial step in emergency consultation (Figure 7-1). During this initial
contact, or soon thereafter, the Services' role is to offer recommendations
to minimize the effects of the emergency response action on listed species
or their critical habitat (the informal consultation phase). Do not stand
in the way of the response efforts.
If this initial review indicates the action may result in jeopardy or
adverse modification, and no means of reducing or avoiding this effect are
apparent, then the agency should be so advised, and the Services'
conclusions documented.
Project leaders should establish procedures (e.g., a calling tree) within
their offices outlining who can be called to handle the emergency
consultation. Once these procedures have been established, they should be
provided to all Federal agencies in that operating area responsible for
handling emergency situations (e.g., Coast Guard, Environmental Protection
Agency, and Federal Emergency Management Agency).
7-1
-------
Endangered Species Consul tation Handbook—Novsabar 1994
The Field Office conducting the consultation should notify the Assistant
Regional Director responsible for endangered species, following timeframes
established by Regional guidance. The notification should be In memo form,
following the format outlined in Exhibit 7-1. Early telephone notification
may be required.
Figure 7-1. Emergency Consultation Process
Emergency occurs for which Federal
response action may affect listed
species or critical habitat
9
Action Agency calls the Service for
advice on measures for minimizing
effects of the response ,
V
Field Station
advises Regional
Office of emergency
and response [optional]
Response action taken
Action agency Initiates
formal consultation
Service provides an emergency
opinion, an incidental take statement,
and conservation recommendations to
document the results of the emergency
consultation, for use by the action agency
as it completes its response action, and
for use should there be a reoccurrence of
the emergency
7-2
-------
Endangered Species Consultation Handbook—Hoveofcer 1994
(B) Initiating Formal Consultation
Once the emergency 1s under control, the action agency Initiates formal
consultation with the Services. Although formal consultation occurs after
the response to the emergency, It 1s treated like any other formal
consultation. However, the action agency has to provide additional
Information to Initiate a formal consultation following an emergency:
o a description of the emergency:
o a justification for the expedited consultation: and
o an evaluation of the response to and the impacts of the
emergency on affected species and their habitats.
(C) Emergency Biological Opinion
After concluding formal consultation on an emergency, the Services Issue an
emergency biological opinion, which In the "effects of the action" section,
documents the recommendations given over the telephone or by the facsimile
machine. The timeframe, format and contents are the same as for formal
consultation (chapter 4). A sample of an emergency consultation document
can be found in Appendix B. The standardized statements for formal
consultation have been modified to reflect that this is, in most cases, an
after-the-fact consultation.
Documenting jeopardy and adverse modification biological opinions is
particularly important to tracking the effect on species and habitat
conditions. Emergency biological opinions with the conclusion of "not
likely to jeopardize" the species or "not likely to result in destruction
or adverse modification of critical habitat" are completed at the Field
Office level. However, if the conclusion is likely jeopardy or adverse
modification, the consultation is elevated to the Regional Office. Such an
adverse finding may not have a reasonable and prudent alternative
available, unless some further action can restore or enhance the species to
a level below the jeopardy threshold.
(D) Incidental Take Statement
If incidental taking is anticipated from the emergency action, the Services
can advise the action agency of ways to minimize take, and thus diminish
the agency's liabilities under the ESA. In some circumstances the actual
or estimated take can be determined, but no after-the-fact take allowance
is provided for take occurring without prior Service advice. Use the
following standardized statements for incidental take in emergencies.
7-3
-------
Endangered Species Consultation Handbook—Hovwber 1994
Successful implementation of Service recommendation:
On (date), the Service provided the (agency) with the following
measures for nlnlnizing the take of (species/habitat): [describe
measures provided - or reference, 1f documented earlier in the
consultation]. As the (agency) Implemented those measures In Its
response to the emergency, the requirements for exemption from the
taking provisions of section 9 have been met.
Partial success:
On (date), the Service provided the (agency) with the following
measures for minimizing the take of (spedes/hab1tat): [describe
measures provided - or reference, 1f documented earlier 1n the
consultation]. To the extent that the [action agency] Implemented
those measures 1n Its response to the emergency, the requirements for
exemption from the taking provisions of section 9 have been met. Any
take resulting from Incomplete compliance with measures provided by
the Service 1s not covered by the exemption.
No prior contact or the agency failed to implement the measures provided:
As the (agency) (did not contact the Service to determine the
measures to be taken or failed to implement the measures necessary to
minimize take of) (species/habitat) during the response to the
emergency, any take resulting from the response action does not
constitute an exempted take under section 9 of the ESA.
(D) Conservation Recommendations
Emergency consultations may contain conservation recommendations to help
protect listed species and their habitats 1n future emergency situations or
initiate beneficial actions to conserve the species.
7-4
-------
Endangered Species Consul tat tori Handnofc—Hovtaber 1994
Exhibit 7-1. Emergency consultation notification memorandum to the
Regional Office (optional)
Memorandum
To: Assistant Regional Director,
From: Field Supervisor, [name of Field Office]
Subject: Emergency Consultation on [name of Federal action].
This office has completed an informal emergency consultation. The
following Information summarizes the location of the emergency, nature of
the emergency, listed species and critical habitat(s) involved, and how
those species and habitats are likely to be affected by the emergency.
Date of Contact: Time:
Contact(s) Name:
Agency:
Contact(s) Title:
Nature of the Emergency:
Species in the Area:
Anticipated Effects:
Recommendations Given the Contact:
7-5
-------
Endangered Species Consultation Handbook—Noveafcer 1994
CHAPTER 8 - MONITORING AND REPORTING
8.1 MONITORING IMPLEMENTATION/EFFECTS OF REASONABLE AND PRUDENT
ALTERNATIVES AND MEASURES
Monitoring, an essential element of interagency consultation, provides the
Services with information essential to assessing the effects of various
actions on listed species and designated critical habitat. Monitoring
allows the Services to refine biological opinions, reasonable and prudent
alternatives, reasonable and prudent measures, and terms and conditions.
Consequently, monitoring programs should be integral elements of all
interagency consultations concluding that an action may adversely affect
listed species or critical habitat.
Monitoring programs resulting from interagency consultations should be
designed to: (1) detect adverse effects resulting from a proposed action,
(2) detect when the level of anticipated incidental take is approached, (3)
detect when the level of anticipated incidental take is exceeded, and (4)
determine the effectiveness of reasonable and prudent measures. The
following objectives/steps should be taken to develop monitoring programs:
o Develop objectives. Any monitoring program associated with
section 7 consultations should answer specific questions or
lead to specific conclusions, captured in the objectives. If
the objectives are well-developed, they will help shape a
complete monitoring program.
o Describe the subject of the monitoring program: effects on
populations of a listed species, effects on the habitat
(critical or not) of a listed species, or effects on both.
o Describe the variables to be measured and how data will be
collected. The success or failure of monitoring programs
ultimately depends on the information collected about the
variables that demonstrate or refute a position outlined in the
objectives. Collection methods should be standardized to
ensure comparability with data from studies in other areas.
o Detail the frequency, timing, and duration of sampling for the
variables. Determining how frequently and how long to collect
data is important to the success or failure of the program.
If the interval between samples is too long or too short, the
monitoring program may not detect an effect. The frequency,
timing, and duration of the sampling regimen should relate to
the type of action being evaluated, the organism affected by
the action, and the response of the organism to the effects
produced by the action.
8-1
-------
EmtangBrad Spec I in Consultation timdbook—ftonrwfcar 1994
o Describe how the data are to be analyzed and who will conduct
the analyses. A monitoring program is more effective when the
analytical methods are integrated into the design. For
example, parametric and non-parametric statistical analyses
require different sample sizes, which will affect the
frequency, timing, and duration of sampling.
o Discuss the relationship between the monitoring program being
Included 1n a consultation and other monitoring programs. At
almost any given time, hundreds of environmental monitoring
programs are being conducted in every region of the country.
Whenever possible, these should be coordinated to eliminate
duplication, standardize sampling methods, or improve
geographic coverage.
8-2
-------
Endangered Species Consul tat1or Handbook—November 1994
8.2 TRACKING COLLECTIVE EFFECTS ON SPECIES AND THEIR HABITATS
Managing collected information efficiently improves the overall
effectiveness of interagency consultations, and makes it easier to (1)
evaluate the effects of various actions as they accumulate over time, (2)
determine which consultations need to be reinitiated when a new species is
listed, (3) determine when the level of incidental take approaches the
likely jeopardy/adverse modification thresholds, (4) exchange similar
information across Regional boundaries, and (5) determine 1f reasonable and
prudent alternatives and measures are carried out.
The following set of fields and values form the core of a Regional or Field
Office information system on interagency consultation. The fields and
values should be part of a computerized Information system, maintained on
commercially available database management systems. Data are to be
maintained for all formal consultations, conferences, early consultations,
emergency consultations, and concurrence letters that conclude informal
consultations (data on the latter should be kept 1n case consultations are
required because a new species is proposed or listed, or critical habitat
is proposed or designated).
The following monitoring system should be maintained in dbf format (x-base)
compatible software to facilitate data exchange within the Services on an
as needed basis:
Field Name
Species Name
Log Number
Record Number
Fiscal Year
Region
Field Values
For vertebrates, butterflies, and mussels, use the
common name 1n the format used in the official list
(50 CFR Part 17). For all other species (primarily
invertebrates and plants) use the scientific name.
Enter only one name for each record.
Enter the log number for the consultation. Use the
format: RN-FO-YY-T-XXXX where RN is the Region
number, FO is the two-number or letter code for the
office, YY is the last two digits of the year, T is
the type of consultation (F-formal, I-informal,
etc.) and XXXX 1s a sequential number 0001-9999.
Reinitiated consultations use the log number of the
original consultation with the letter R added at
the end. If there are several reinitiations for the
same consultation, the suffix reads as R1 to RX for
each new reinitiation.
Numerical sequence of the record.
Fiscal year of initiation.
Lead Region for consultation.
8-3
-------
Endangered Species Consultation handbook—Wove*er 1994
Office
Action Agency
Department
[Applicant
Action Name
Permit Number
Description
State
County
Locality
Consultation Type
Start Date
Date Issued
Species Conclusion
Habitat Conclusion
Service office that Issued the document; use a four
letter code for field offices or ROn (where n is
the Region number) for consultations conducted by a
Region.
Standard abbreviation for action agencies where
applicable (e.g., EPA, BLM, COE).
Standard abbreviation for the department.
Pursuant to the Privacy Act, do not maintain the
applicant's name 1n this file.]
Short name of the proposed action (e.g., Didion
bulk transfer facility; Page Avenue extension).
Permit number used by action agency where one
exists.
Short description of the proposed action. For
example, bulk transfer facility, airport
construction, landfill expansion, etc.
Standard two letter code for State in which
proposed action will occur.
County name or code if multiple counties.
Township, city, or land management area (for
example, Shawnee National Forest, Indiana Dunes
National Lakeshore) 1n which action will occur.
Emergency, Early, Conference, Informal, Formal or
Programmatic.
For consultations and formal consultations, enter
the date consultation was initiated.
Date the document or concurrence letter was issued.
Two letter code for the conclusion of the
consultation for listed species: NE»No effect;
NL«Not likely to adversely affect; LA-Likely to
adversely affect; NJ-Not likely to jeopardize; 0-
Likely to jeopardize.
Conclusion of consultation for critical habitat:
AM- Destruction or adverse modification; NM-No
destruction or adverse modification.
8-4
-------
Endangered Species Consultat1c
RPAs
Take Type
Take Level
RPMs
Terms
Report
Report Frequency
Report Due
Conservation
Recommendations
Follow-up
Contact
Handbook—Noveafaer 1994
Summary of reasonable and prudent alternatives for
jeopardy or adverse modification biological
opinions.
Type of incidental take being allowed from the pop-
up menu: Individuals or Habitat.
Level of take being anticipated (with rpa
implemented) and time period covered.
Summary of reasonable and prudent measures for
Incidental take.
Enter summary of terms and conditions of incidental
take.
Report required (Yes or No).
How frequently must the action agency report?
Date report is due to the Service.
Summary of conservation recommendations.
Summary of any follow-up evaluation.
Name and telephone number of the individual who
authored the consultation.
Notes
Notes on the consultation.
8-5
-------
Endangered Species Consultation Handbook—November 1994
APPENDIX A - REGULATIONS RELATING TO CONSULTATION
Interagency Cooperation - 50 CFR Part 402: June 3, 1986
Incidental Take of Endangered, Threatened and Other Depleted Marine Mammals
- 50 CFR Parts 18, 228 and 402: September 29, 1989
[Note: These regulations are not available in electronic format.]
-------
Tuesday
June 3, 1986
#nto'
-------
19926
Federal Register / Vol. 51. No. 106 / Tuesday. |une 3. 1986 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Fish and Wikfltfe Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 402
Interagency Cooperation-
Endangered Specie* Act of 1973, as
Amended; Final Rule
agencies: Fish and Wildlife Service.
Interior National Marine Fisheries
Service. National Oceanic and
Atmospheric Administration.
Commerce.
action: Final rule.
summary: This final rulemaking
establishes the procedural regulations
governing interagency cooperation
under section 7 of the Endangered
Species Act of 1973, as amended (the
"Act"). The Act requires Federal
agencies, in consultation with and with
the assistance of the Secretaries of the
Interior and Commerce, to insure that
their actions are not likely to jeopardize
the continued existence of endangered
or threatened species or result in the
destruction or adverse modification of
the critical habitat of such species. The
Endangered Species Act Amendments of
1978,1979. and 1982 (the
"Amendments") changed the
consultation requirements of section 7.
This final rulemaking amends the
existing rules governing section 7
consultation by implementing the
changes required by the Amendments
and by incorporating other procedural
changes designed to improve
interagency cooperation.
EFFECTIVE DATE July 3,1986.
W)W FURTHER INFORMATION CONTACT
Marvin E. Moriarty, Acting Chief, Office
of Endangered Species, U.S. Fish and
Wildlife Service, Department of the
Interior, Washington, D.C. 20240 (703-
235-2771); or Charles KarneUa, .
Protected Species Division. Office of
Protected Species and Habitat
Conservation, National Marine Fisheries
Service, National Oceanic and
Atmospheric Administration.
Department of Commerce. Washington,
D.C. 20235 (202-634-7461).
SUPPLEMENTARY INFORMATION:
Background
On January 4.1978, the Department of
the Interior, through the United States
Fish and Wildlife Service (FWS). and
the Department of Commerce, through
the National Marine Fisheries Service
(NMFS), established procedures for the
Act's consultation process by
implementing the interagency
cooperation requirements of section 7
(50 CFR Part 402, "1978 role"). The
consultation process is designed to
assist Federal agencies in complying
with the requirements of section 7 and
provides such agencies with advice and
guidance from the Secretary on whether
an actioA complies with the substantive
requirements of section 7.
The Secretaries of the Interior and
Commerce (the "Secretary") share
responsibilities for conducting
consultations pursuant to section 7 of
the Act Generally, marine species are
under the jurisdiction of the Secretary of
Commerce and all other species are
under the jurisdiction of the Secretary of
the Interior. Authority to conduct
consultations has been delegated by the
Secretary of the Interior to the Director
of the FWS and by the Secretary of
Commerce to the Assistant
Administrator for Fisheries, NMFS,
National Oceanic and Atmospheric
Administration.
Section 7(a)(1) of the Act authorizes
Federal agencies, in consultation with
and with the assistance of the Secretary
of the Interior or Commerce, depending
on the species involved, to utilize their
resources hi furtherance of the purposes
of the Act by carrying out programs for
the conservation of endangered species
and threatened species ("listed spedes")
listed pursuant to section 4 of the Act
Section 7(a)(2) ef the Act requires
Federal agendas, in consultation with
and with the assistance of the Secretary,
to insure that any action authorized,
funded, or carried out by such agency is
not likely to jeopardize the continued
existence of any listed spedes or result
in the destruction or advene
modification of habitat of such spedes
which has been designated as critical
("critical habitat")- Although Federal
agency authority and responsibility
under section 7 have remained virtually
intact from the 1973 Act the
Amendments made significant
procedural changes in the section 7
consultation procedures.
The 1978 Amendments formalized the
process for the issuance of the
Secretary's opinion ("biological
opinions"), and required that the opinion
indude "reasonable and prudent
alternatives" in cases where the
proposed Federal action, in the opinion
of the Secretary, would jeopardize the
continued existence of a listed spedes
or result in the destruction or adverse
modification of its critical habitat The
1978 Amendments also added section
7(c), requiring the preparation of
biological assessments in appropriate
instances, section 7(d) of the Act also
added by the 1978 Amendments,
prohibits a Federal agency or any
involved permit or license applicant,
after initiation of consultation, from
making an irreversible or irretrievable
commitment of resources which would
foreclose the adoption of any reasonable
and prudent alternatives.
Perhaps the most significant part of
the 1978 Amendments was the creation
of the Endangered Species Committee,
which is authorized to grant exemptions
from the requirements of section 7(a)(2)
in appropriate cases. Regulations
governing the submission of exemption
applications and consideration of such
applications by the Endangered Spedes
Committee are presently codified at 50
CFR Parts 450-453. Although this final
rule on consultation procedures does not
deal directly with exemptions, good
faith adherence to the consultation
requirements of section 7 is a statutory
prerequisite for entry into the exemption
process.
The 1979 Amendments slightly altered
the Federal agency's substantive
obligation under section 7(a)(2) from
insuring that its action "does not
jeopardize"'listed spedes or adversely
modify the critical habitat of such
spedes to insuring that its action "is not
likely to jeopardize" such spedes or
critical habitat Congress expressly
provided that the consultation and
resultant biological opinion be based
upon the "best sdentific and
commercial data available." These
changes made the consultation process
more flexible and established a
reasonable information standard to be
followed by the NMFS and FWS (the
"Service") and other Federal agendes.
The 1979 Amendments added a
requirement that all Federal agencies
confer with the Secretary on all actions
that are likely to jeopardize the
continued existence of proposed species
or result in the destruction or adverse
modification of proposed critical
habitat
The 1982 Amendments also
established several new processes
under section 7. First a new subsection
7(b)(4) allows for the issuance of an
"incidental take statement" along with a
biological opinion. This "inddental take
statement" operates to exempt the
Federal agency and any permit or
license applicant involved from the
section 9 "taking" prohibitions under the
Act if the subsequent implementation of
the action is consistent with the terms
and conditions of the inddental take
statement
Second, the 1982 Amendments
provide an opportunity for permit or
license applicant involvement in all
-------
Federal Register / Vol. 51. No. 106 / Tuesday, June 3. 1986 / Rules and Regulations
19927
phases of the consultation procedures. A
prospective permit or license applicant
may request Federal agencies to initiate
consultation in advance of filing for any
needed license or permit if they have
reason to believe that their proposed
actions may affect listed species.pr
critical habitat. This new provision,
under section 7(a)(3), for "early
consultation" allows a prospective
applicant the opportunity to discover,
and attempt to resolve, potential
endangered or threatened species
conflicts early in the planning stage of
the proposed action—a time at which
alterations in project plans could
involve much less expense and delay.
Further involvement of the applicant
in the consultation procedures is
provided by the requirement that the
applicant be involved in time
extensions. Congress amended section
7(c) to require the Federal agency to give
written notice to the applicant
explaining why any extension of the
biological assessment deadline is
needed. If formal consultation under
section 7(a)(2) is extended by the
Service and the Federal agency for up to
60 days, the Service must provide the
applicant with a written explanation of
the reasons for extension. Any
extension past 60 days must be
approved by the applicant Clearly, the
permit or license applicant plays an
active role in the consultation process.
The final rule recognizes this increased
role of the applicant while retaining the
requirement that formal communications
flow between the Federal agency and
the Service during the consultation
process.
- In order to implement these
Amendments to section 7 and to
otherwise improve the interagency
cooperation process, the Service
published a proposed rule on ]une 29.
1983 (48 FR 29990-30004). Although the
Service originally specified a 60-day
comment period for these revised
section 7 regulations, the comment
period was extended until September 30.
1983. The Service received
approximately 70 comments from other
Federal agencies. State governmental
agencies, private organizations, and
other individuate and entities on the
proposed rule.
After careful consideration of these
comments, the Service has modified the
regulations to clarify the consultation
process and to improve the overall
organization of the regulations. These
technical changes are more fully
explained in the section-by-section
analysis below and were made to
accommodate concerns raised in the
public comments.
General Comments
The majority of the comments
received on the proposed rule focused
on particular regulatory provisions or
concepts. These specific comments are
discussed in the section-by-section
analysis. However, several commenters
expressed general concerns with the
proposed rule or addressed matters that
went beyond the scope of the proposal.
These general comments ranged from
praise for the comprehensiveness of the
proposal to criticism for the proposal's
alleged failure to require the level of
analysis and protection mandated by
the Act The Service believes that this
final rule properly and accurately
implements the Amendments to the Act
and affords the protection mandated by
section 7.
The House of Representatives
Committee on Merchant Marine and
Fisheries ("House Committee"), which
oversees die implementation of the Act
submitted comments on the proposed
rule. The Committee commended the
Service in its efforts to translate
complex legislation into agency policy
and noted specific areas that it believed
did not conform to the legislative intent
These matters have been clarified in the
final rule.
One commenter was concerned that
the proposed rule confused the informal
(nonmandatory) consultation
components with the formal (required)
components of the consultation process.
To clarify this matter, the Service has
distinguished optional procedures from
required procedures in the final rule. For
example, the conference procedures
(5402.10) are required for Federal
actions that are likely to jeopardize
proposed species or proposed critical
habitat and the formal consultation
procedures (1402.14) are required for
actions that may affect listed species or
critical habitat Additionally, biological
assessments (9402.12) are required for
"major construction activities." Early
consultation ({ 402.11) and informal
consultation ($402.13) are optional
procedures and are clearly designated
as such in the final rule.
Concerned about increased
paperwork burdens and potential time
commitments resulting from the
proposal, one commenter complained
that the proposed rule is burdensome,
unnecessary, and unacceptable. The
commenter noted that additional
protection for listed species or their
habitat would not result from these
alleged increases in administrative
burdens, and it urged that currently used
processes be maintained. The Service
emphasizes that the proposal was not
intended to increase in any way the
paperwork burden of Federal agencies
or any other participant in the
consultation process. Moreover, the
purpose of the proposal was to
implement the Amendments to the Act
in such a way as to streamline the
consultation process while maintaining
the protections afforded species under
section 7. The concern of the commenter
has been addressed to the extent
possible by the Service's effort to clarify
the consultation process in this final
rule. Because section 7 imposes certain
requirements on Federal agencies, any
burdens recognized in this final rule are
a creature of statutory law as
implemented by these regulations.
Two commenters asserted that the
Act protects habitat only when it is
designated as the critical habitat of a
listed species and, therefore, the Service
must identify areas of critical habitat for
all listed spedes to assure adequate
protection. It is true that the Service has
not designated critical habitat for all
listed species. Thd Service has
consistently taken the position that it is
not prudent to designate critical habitat
for a species if to do so would increase
the risk that the species might be taken
or would otherwise not benefit the
spedes. See 50 CFR 424.12(a). However,
the commenters ignore the fact that
section 7 protections attach to both
designated critical habitat and to each
individual of a listed species within the
jurisdiction of the United States or on
the high seas. An action could
jeopardize the continued existence of a
listed spedes through the destruction or
adverse modification of its habitat
regardless of whether that habitat has
been designated as "critical habitat."
Thus, the failure of the Service to
designate critical habitat for a given
spedes does not automatically mean
that its habitat is without protection.
Two States commented that Federal
agendes charged with implementing the
Act should recognize and cooperate
with the States in resolving .water
resource issues within the context of
section 7. Consistent with the
Department's "good neighbor" policy,
one commenter encouraged the Service
to actively include affected States in any
consultation process. The Service
intends to cooperate with all State and
local agendes to resolve water resource
issues consistent with the requirements
of the Act The Service stands ready to
receive any and all comments, data, or
other input from any affected States that
are interested in a particular section 7
consultation. However, consultation
takes place between the Service, the
Federal agency and, where applicable,, a
Federal permit or license applicant.
-------
19828
Fedncri Register / Vol. 51. No. 106 / Tuesday, Jane 3, 1906 / Rules and Regulations
Several commenter* stated that the
proposal goes beyond the scope of the
Act thereby placing unjustifiable
burdens on applicants and Federal
agencies. They claimed that the rales
would usurp Federal agency authority.
One commenter questioned the ultimate
authority of the Service to issue binding
procedural regulations under section 7.
In no way does the Service intend to use
the consultation procedures of section 7
to establish substantive policy for
Federal agencies. The Service performs
strictly an advisory function under
section 7 by consulting with other
Federal agencies to identify and help
resolve conflicts between listed specie*
and their critical habitat and proposed
actions. As part of its role, the Service
issues biological opinionsto assist the
Federal agencies in conforming their
proposed actions to the requirements of
section 7. However, the Federal agency
makes the ultimate decision as to
whether its proposed action will satisfy
the requirements of section 7(a)(2). The
Service recognizes that the Federal
agency has the primary responsibility
for implementing section Tt substantive
command, and the final rule does not
usurp that function. The Service is
satisfied that the final rule is within the
scope of the authority provided in the
Act.
Moreover, the Service is responsible
for interpreting section 7 and for
establishing a consultation process that
is both uniform and consistent with
statutory requirements. This issue was
addressed in the preamble to the 1978
rule:
The FWS and NMFS in authorised under
the Act to issue such regulations as they
deem appropriate for the conservation of
Usted species. The two Services believe that
these procedural regulations promote the
conservation of listed species by
Implementing a uniform general framework
as the starting point for consultation. Once
the mandatory consultation hss taken place,
however, the ultimate responsibility for
determining agency action in Ugbt of section
7 still rests with the Mr Federal spenry
that was engaged in consultation, la this
fashion, a standardised consultation process
Table 4.—Cross-Refer
is established which preserves ultimate
agency administrative control over its
activities or programs.
43 FR 870, 871 (Jan. 4.1978). These
procedural regulations do not dictate
results but prescribe a process by which
the Service will consult in keeping with
the Act
Several commenters stated that
Congress did not intend that the Service
interpret or implement section 7, and
believed that the Service should recast
the regulations as "nonbinding
guidelines" that would govern only the
Service's role in consultation. The
Service notes that Congress reviewed
with approval the section 7 regulations
issued on January 4.1978, when
deliberating over the 1978 Amendments
to the Act See H.R. Conf. Rep. No. 1804,
95th Cong* 2d Sees. 18 (1978)l Also, the
Service was urged by the House
Committee, through its on the
proposed rule, to prsss forward with the
issuance of this final rule. The Service it
satisfied that it has ample authority and
legislative mandate to issue this rule,
and believes that uniform consultation
standards and procedures are necessary
to meet its obligations under section 7.
However, the Service is aware that
some Federal programs may require a
modified consultation process, and
therefore the Service has provided for
the issuance of counterpart regulations
under {402.04.
Several general comments were
received regarding programmatic
adjustments and coordination. One
commenter suggested that the Service
maintain cumulative summaries of
consultation activities in the
Washington Office. The Service
maintains copies of all biological
opinions and monitors the issuance of
biological opinions in an effort to ensure
consistency and accuracy of findings.
The Service submits that current review
mechanisms are adequate and that
although the maintenance of cumulative
consultation summaries might be useful,
the increased costs are not justified.
Another commenter urged increased
public participation in the consultation
ce of Section 7 Regulatory Provkkms: Pn
process, including: (1) Public notice of
each request for consultation; (2) public
notice of the agenda for each
consultation; (3) public notice of
consultation results; (4) public comment
periods; and, (5) prescribed rights to
appeal by the public. Nothing in section
7 authorizes or requires the Service to
provide for public involvement (other
than that of the applicant) in the
"interagency" consultation process.
Moreover, due to the statutory time
constraints imposed on the consultation
procedures, it would not be practicable
to implement such detailed public
participation measures. Public
participation may be provided within
the Federal agency's decisionmaking
process. However, that is a function of
the agency's regulations or substantive
legislation and not an issue to be raised
in the context of consultation.
Finally, several questions were raised
as to what rules will apply to pending
consultations once the final rule
becomes, effective. The Service does not
anticipate any dramatic in
procedure or additional burdens on
Federal agencies because die statutory
changes to section 7 have been in effect
throughout the development of the final
rule. When this rule becomes effective,
all pending and future consultations
must comply with the requirements of
these regulations. The Service will
cooperate with the Federal agencies and
any applicants to ensure that there are
no undue delays in ongoing
consultations.
Section-by-Section Analysis
The following portion of the preamble
explains the final rule, covering the
substantive issues of each section,
noteworthy modifications from the
proposed rale, significant changes from
the 1978 rule, and responses to public
comments. To assist the reader. Table l
presents a citation to each subsection of
the proposed rule with appropriate
cross-references to the location of that
provision in the final rule and In the
1978 rule.
3SAL—Final—1978 Rule
IB70 FU*
f 409011*
(402.03 MMKm.
(not*)
—"Ae**S» or proywne™
(nop*
(nan*)
(¦on*
<"«¦»
tnont)
tail
-------
Federal Register / Vol. 51. No. 106 / Tuesday. )une 3. 1986 / Rules and Regulations
19929
Table v—Cross-reference of Section 7 Regulatory Provisions: Proposal—Final—1978 Rule—Continued
Fmal
1978 R<4*
—"Cumuiatwa effects"._
— Destruction or adverse modrtcaaon"....
— 'Director" - -
— Garty consultation" -
—"Effects of 0* action"
—"Federal agency" -
— Forma consultation"
—"further dacusaen*'
— 'inodsntal taM" —
—• inlormai consuftabon".. _
— jeopardue the continued e«Hano> of'
— Luted
—' Preliminary bntoQca) op**on'
—"P'oposed critical hataaf"
—"Proposed spaou"
— Reasonable and prudent
(none) ..
— Reocwsry"
— 'Serve*"
1402.03
f 402. CM
1402.05
9402 10(a)...
4 402.11
940212(a)
•(b)...
9402i3(aHe) -
9402 14
1402 15(a)
4 402.10
5 402 19
—"CumuiatNe tffactT
—'Des^nated nonfederal representative". 940206..
<—'Destruction or adverse motfeabon"
<—"Droctor" .
- 'Earty consultation".... ..
-"Effects of the acbon"
(none)
- 'Formal consultation"
(none) ..
-"Incidental take"
-"informal coneunafionH_...
-"Jeopardae (ha cdntmued
—•Proposed cntctf habitat".
— •flaesonatte and prudent
—"Recovery"
9 402.03
9402.04 —
94O2.0S(aHb)-
9402.06(a)..
9402.06(a).
(none)
9402.07
940^00
9402.13(aHb)....
9402.12UHk>~
9402.10(aHd)-
940211
9402 14(a)..
99402.11(0. 402.14(bM2^
99402.13(a). 402.14(b)—
9402.i4(cHd) ......
-------
19930
Federal Register / Vol. 51. No. 106 / Tuesday, June 3. 1966 / Rules and Regulations
Several commentera asserted that the
rules should continue to have
extraterritorial effect. The scope of these
regulations has been enlarged to cover
Federal actions on the high seas but has
not been expanded to include foreign
countries. The Service finds that
because it already has jurisdiction under
section 9(a)(1)(C) of the Act to regulate
the taking of a listed fish or wildlife
species on the high seas by all persons
subject to the jurisdiction of the United
States, concomitant jurisdiction under
section 7 is implicit from Congressional
concern that compliance with a section
7 incidental take statement not result in
a taking violation under section
9(a)(1)(C), as provided in section 7(o)(2).
Although consultations on Federal
actions in foreign countries will not be
conducted under this rule, the Service
maintains its strong commitment to the
preservation of species and habitat
worldwide. The Service will continue to
list species which are found outside of
United States jurisdiction when they are
determined to be endangered or
threatened.
Furthermore, Congress, in the
International Environment Protection
Act of 1983,22 U.S.C. 21Slq. made a
finding that "the extinction of «n
-------
Federal Register / Vol. 51, No. 106 / Tuesday, June 3.1986 / Rules and Regulations 19931
regulations. This would involve
interaction with the Service, but it
would be limited in scope to the
prospective application for the permit at
issue, not a general consultation on the
pending rulemaking. In response to
another comment the Service takes the
position that it will not expand
applicant" to include those seeking
funding from Federal agencies, unless
the request for funding is coupled with a
requirement that the person obtain
Federal approval or authorization as a
prerequisite for carrying out the action
for which funding is sought Finally, one
commenter asked that the scope of the
definition be expanded to include
corporations. Federal agencies, and all
other legal entities. The Service believes
that the use of the word "person" in the
definition satisfies the commenter'i
concern because of the broad definition
of that term in section 3(13) of the Act
To clarify this point the Service added a
reference to the Act's definition of
"person" in the definition of "applicant"
in the final rule.
The definition of "biological
assessment" in the final rule, derived
from §3402.02 and 402.12(b)(4)(ii) of the
proposed rule, clarifies that the
assessment must include an evaluation
of potential impacts. One commenter
criticized the "vagueness" of the
definition of "biological assessment" in
the proposed rule, stating that it was
unclear as to how a Federal agency
would determine which species or
critical habitat may be in the action area
and how the agency would evaluate
potential effects. The Service believes
that this definition is adequate and that
the process-oriented format in 1402.12 of
the regulations adequately explains the
scope and procedure of the biological
assessment requirement
The proposed definition of "biological
opinion" has been adopted in these final
rules. A biologieal opinion is the
document that states the Service's
opinion as to whether or not the Federal
action is likely to jeopardize the
continued existence of listed species or
result in the destruction or-adverse
modification of critical habitat. One
commenter suggested a third possible
conclusion for biological opinions:
"insufficient information to issue an
opinion." The commenter argued that
such a conclusion would eliminate the
risk that the Service takes when issuing
an opinion based on arguably
inadequate data. The Service declines to
add this third option. The legislative
history of the Act is clear in requiring
the Service to make a decision on the
issue of likely jeopardy at the
conclusion of formal consultation. The
Service will not sidestep this obligation,
but instead will conclude either
"jeopardy" or "no jeopardy" based on
the best available data.
The definition of "conference" has
been adopted as proposed. One
commenter suggested that the
conference not include
recommendations to minimize or avoid
adverse effects since they are not
required by section 7(a)(4) of the Act.
The commenter believed that such
recommendations might result in legal
action if not adopted. The Service,
however, believes it has the
responsibility not only to identify
impacts but also to identify measures
that would reduce those impacts.
The definition of "conservation"
contained in the proposed rule was
derived from the Act's definition in
section 3(3). One commenter,
characterizing the Service's
interpretation of "conservation" as
opposing the purposes of the Act and
potentially encouraging the "further
decline" of listed species, urged the
Service to adopt the strict language of
the statutory definition. The Service's
definition in the proposed rule in no way
discouraged recovery. In fact the
proposed definition tracked the statute
except for its interpretation of "the point
at which the measures provided
pursuant to this Act are no longer
necessary" as being equivalent to "the
point at which [the species] may be
removed from die Lists . . . ."The
basic goal of the Act is to recover listed
species through conservation measures.
Bringing a species to the point at which
the Act's protective measures are no
longer necessary is the same as bringing
the species to the point at which
delisting is appropriate. However, to
avoid any misunderstanding, the Service
has deleted the definition from the final
rule and will rely solely on the definition
contained in section 3(3) of the Act The
Service declines specifically to include
habitat modification (improvement or
restoration), "off-site mitigation."
captive propagation, and species
reintroduction in the list of conservation
methods and procedures, as suggested
by certain commenters. Such activities
are already adequately provided for in
the Act's definition.
The term "conservation
recommendations" was introduced in
the proposed rule and explains the
Service's role in helping agencies meet
their section 7(a)(1) responsibilities.
Several commenters feared that the
Service would employ conservation
recommendations to require Federal
agencies to reformulate their actions
that had received "no jeopardy"
biological opinions. This is not the
purpose of conservation
recommendations. They are nonbinding
suggestions that a Federal agency may
elect to implement in its proposed
action. These recommendations should
be consistent with the general scope,
magnitude, and duration of a Federal
action that is not likely to jeopardize a
listed species or destroy or adversely
modify its critical habitat. The Service,
in answering the concerns noted above,
is satisfied that it has clarified its
position and that the regulatory
definition should not be deleted. The
Service has chosen to retain this
definition with limited, technical
changes because it believes that the
opportunity to provide conservation
recommendations, including minor
design modifications, may minimize
possible adverse effects and may avoid
future section 7 conflicts for subsequent
Federal actions in the same action area.
One commenter confused
"conservation recommendations'' with
"reasonable and prudent alternatives"
and believed that recommendations to
reduce adverse impacts would violate
section 7(a)(2), absent the granting of an
exemption. The obligation of Federal
agencies under section 7(a)(2) is to
insure that the actions they authorize,
fund, or cany out are not likely to
jeopardize listed species or destroy or
adversely modify their critical habitat. A
showing of "adverse effect" does not
necessarily violate section 7(a)(2),
because the Jeopardy standard is the
ultimate barrier through which Federal
agencies may not pass in conducting
their actions. "Reasonable and prudent
alternatives" represent avenues of
fulfilling the action without violating the
jeopardy standard. "Conservation
recommendations" involve voluntary
measures that the Federal agency has
the discretion to undertake to avoid or
reduce adverse effects of a proposed
action that otherwise complies with the
provisions of section 7(a)(2).
The definition of "consultation
process" has been deleted from the final
rule because it tended to confuse the
statutory requirements and optional
processes and because it added little to
the public's understanding of the
process. The definition in the proposed
rule could have led persons to believe
that early consultation and informal
consultation are required, sequential
steps of the overall consultation process.
As discussed above, the only required
components of the consultation process
are a "conference" for proposed species,
a "formal consultation" for listed
species, and a biological assessment for
"major construction activities."
-------
19932
Federal Register / Vol. 51. No. 106 / Tuesday. June 3.1986 / Rules and Regulations
The "critical habitat" definition
contained in the proposed rule only
referred to those sections of 50 CFR
Parts 17 and 226 that contain the lists of
those areas so designated. The
mechanics of the designation process
are more properly considered under the
section 4 regulations (50 CFR Part 424).
For purposes of determining whether
any of their actions is likely to destroy
or adversely modify critical habitat.
Federal agencies involved in section 7
consultations need only be aware of
those areas that have been designated
by the Service as critical habitat Two
commenters requested that a definition
of critical habitat be included in the
final rule. The Service notes that the
requested definition is contained in the
Act and need not be repeated here.
"Cumulative effects" and "effects of
the action" are defined in S402.02 of the
final regulations. Under {402.14(g) (3)
and (4) of the final rule, the Service will
consider both the "effects of the action"
subject to consultation and "cumulative -
effects" of other activities in
determining whether the action is likely
to jeopardize the continued existence of
a listed species or result in the
destruction or adverse modification of
critical habitat
In determining the "effects of the
action," the Director first will evaluate
the status of the spedes or critical
habitat at issue, Tliis will involve
consideration of the present
environment in which the species or
critical habitat exists, as well as the
environment that will exist when the
action is completed, in terms of the
totality of factors affecting the species
or critical habitat The evaluation will
serve as the baseline for deterinining the
effects of the action on the species or
critical habitat The specific factors that
form the environmental baseline are
given in the definition of "effects of die
action." as requested by some
commenters.
"Effects of the action" Include the
direct and indirect effects of the action
that is subject to consultation.
"Indirect effects" an those that am
caused by the action and an later in
time but are still reasonably certain to
occur. They include the affects on listed
species or critical habitat of future
activities that are induced by the action
subject to consultation and that occur
after that action is completed. In
National Wildlife Federation v.
Coleman. 529 F2A 359 (5th Cir. 1976). the
Court of Appeals for the Fifth Circuit
found that "indirect effects" which can
be expected to result must be
considered under section 7 of the Act In
that case, the court enjoined completion
of a highway because the Department of
Transportation failed to consider the
effects to the endangered sandhill crane
from future private development that
would result from construction of the
highway. The Service will consider the
effects to listed species from such future
activities that are reasonably certain to
occur under the analysis of "indirect
effects." The Service's approach will be
consistent with National Wildlife
Federation v. Coleman, and the Service
declines to narrow the scope of its
review (as requested by one commenter)
in light of existing case law.
Effects of the action also include
direct and indirect effects of actions that
are interrelated or interdependent with
the proposal under consideration.
Interrelated actions are those that are
part of a larger action and depend on
the larger action for their justification;
interdependent actions are those that
have no significant independent utility
apart from the action that is under
consideration. As noted by one
commenter, the "but for" test should be
used to assess whether an activity is
interrelated with or interdependent to
the proposed action.
(tee commenter urged the Service to
exclude Federal actions that have
completed consultation from the
environmental baseline unless it can be
shown that the actions are reasonably
certain to occur. The Service declines to
adopt this suggestion. In issuing its
biological opinion on an action, the
Service's finding under section 7(a)(2)
entails an assessment of the degree of
impact that action will have on a listed
species. Once evaluated, that degree of
impact is factored into all future section
7 consultations conducted in the area.
These impacts will continue to be
considered as part of the environmental
baseline unless the Service receives
notice from the Federal agency that the
proposed action will not be
implemented or unless the biological
opinion on the proposed action is no °
longer valid because reinitiation of
consultation is required.
In response to one comment the
Service notes that Federal actions that
have proceeded through early
consultation and that have received "no
jeopardy" preliminary biological
opinions should be factored into the
environmental baseline. These actions,
to be eligible for early consultation, had
to be nonspeculative. feasible actions,
and. because the preliminary biological
opinion can later be confirmed as a final
biological opinion, this initial review
and conclusion by the Service must be
considered in other section 7
consultations.
The term "cumulative effects" means
those effects on the species caused by
other projects and activities unrelated to
the action under consultation that the
Service will consider in formulating its
biological opinion on the subject action.
One commenter opposed the proposed
definition of cumulative effects by
arguing that the Act does not require an
analysis of cumulative effects in a
section 7 consultation. Citing section
7(c). the commenter noted that
biological assessments may be limited
to an examination of effects of "such
action" on listed species. The
commenter urged the Service to strike
cumulative effects analysis from this
rule because few Federal agencies have
the capability to recognize or assess
cumulative effects of State or private
actions contemporaneously with
conducting section 7 consultation.
According to the commenter, the
Service, as the expert on current status
of listed spedes, should keep watch on
these State and private activities that
come on line In a particular action area.
The Service responds that a Federal
agency, when evaluating the
environmental impacts of a proposed
action, must comply with NEPA. Since
this compliance includes an analysis of
cumulative effects, the Service believes
that it is the Federal agency's
responsibility to develop this
information. The cumulative effects
analysis conducted In compliance with
the broad definition under NEPA may be
submitted to the Service by the Federal
agency when initiating formal
consultation. The Service can use this
analysis and apply its narrower
definition of cumulative effects when
analyzing whether a proposed action,
along with cumulative effects, violates
section 7(a)(2) of the Act
Other commenters, while not opposing
the applicability of cumulative effects
analysis to section 7 consultations,
believed that the proposed scope of
"cumulative effects" and "effects of the
action" were too narrow. These
commenters generally suggested that
cumulative effects should indude the
effects of all reasonably foreseeable
future Federal. State, and private
actions. They stated that this scope
would be more In line with that
mandated under NEPA and argued that
any lesser review could detrimentally
affect endangered spedes. The
commentem adamantly opposed any
limitation on the foresight employed by
the Service or Federal agendes that they
believed would result from the
proposal's construction of cumulative
effects.
Section 7 consultation will analyze
whether the "effects of the action" on
listed spedes, plus any additional
-------
Federal Register / Vol- 51. No. 106 / Tuesday. June 3. 1986 / Rules and Regulations
19933
cumulative effects of State and private
actions which are reasonably certain to
occur in the action area, are likely to
jeopardize the continued existence of
that species. Based on this analysis, the
Federal agency determines whether it
can proceed without exceeding the
jeopardy standard. If the jeopardy
standard is exceeded, the proposed
Federal action cannot proceed without
an exemption. This is a substantive
prohibition that applies to the Federal
action involved in the consultation. In
contrast, NEPA is procedural in nature,
rather than substantive, which would
warrant a more expanded review of
cumulative effects. Otherwise, in a
particular situation, the jeopardy
prohibition could operate to block
"nonjeopardy" actions because future,
speculative effects occurring after the
Federal action Is over might on a
cumulative basis, jeopardize a listed
species. Congress did not intend that
Federal actions be precluded by such
speculative actions.
Future Federal actions proposed for
the same area would have to be
separately evaluated under section 7
and could not occur unless they were
able, in their own right to avoid
jeopardizing the continued existence of
the affected species or destroying or
adversely modifying critical habitat
Since all future Federal actions will .at
some point be subject to the section 7
consultation process pursuant to these
regulations, their effects on a particular
species will be considered at that time
and will not be included in the
cumulative effects analysis. However,
those future State or private actions (i.e.,
no Federal agency involvement) that are
"reasonably certain to occur" must be
factored into section 7(a)(2) evaluations.
The Service agrees that cumulative
effects that are reasonably certain to
occur will be considered in determining
the likelihood of jeopardy. The final rule
is amended accordingly, to clarify the
duty to consider cumulative effects.
One commenter thought that the
"reasonably certain to occur'' standard
was far too narrow and that it should be
amended to cover actions where
proposals have been made, and
implementation schedules have been
established. This suggestion would open
the door for speculative actions to be
factored into the "cumulative effects"
analysis, adding needless complexity
into the consultation process and
threatening potential Federal actions
which pose minimal adverse impacts of
their own with possible "jeopardy"
opinions due to speculative, State or
private projects that may never be
implemented. For State and private
actions to be considered in the
cumulative effects analysis, there must
exist more than a mere possibility that
the action may proceed. On the other
hand, "reasonably certain to occur"
does not mean that there is a guarantee
that an action will occur. The Federal
agency and the Service will consider the
cumulative effects of those actions that
are likely to occur, bearing in mind the
economic, administrative, or legal
hurdles which remain to be cleared. The
Service declines to alter its "cumulative
effects" definition to include State or
private actions that are not likely to
occur.
One issue was raised concerning the
application of cumulative effects
analysis to water projects. A commenter
contended that State and private
projects that possess senior water rights
under State water law and that can
"reasonably be expected to occur"
concurrently with the Federal action
should be considered as cumulative
effects. The Service notes that any State
or private project (;.e., no Federal
agency involvement) that is reasonably
certain to occur must be considered
during the analysis of cumulative
effects. Further, the Service believes that
Federal actions, whether authorized,
funded, or carried out by Federal
agencies, that possess senior water
rights should be considered while
analyzing the effects of the action. In
order to determine the effects of the
action when a water project is the
subject of consultation in a State which
follows the prior appropriation doctrine,
the project's operation plan should
indicate the priority of the project's
water rights under State law and
account for the future effects of senior
conditional water rights.
On a related matter, the Associate
Solicitor's opinion on.the scope of
cumulative effects cited in the proposed
rule provided, in part that only those
effects of other projects that are
reasonably certain to occur prior to the
completion of the Federal action subject
to consultation under section 7(a)(2)
should be considered during formal
consultation. This statement has been
interpreted by some to exclude front
cumulative effects analysis those future
State and private actions that while
"reasonably certain to occur," would not
be completed before the completion of
the Federal action subject to
consultation. Such an interpretation
places undue emphasis on the use of the
word "prior" while ignoring the central
conceptual the Associate Solicitor's
opinion intended to project that a
proposed State or private activity be
"reasonably certain to occur" in order to
be taken into account during cumulative
impact analyses. If such a State or
private project satisfies the "reasonable
certainty" test then it should be
considered in the cumulative impact
analysis, even if it would go on line
sometime after completion of the
federally authorized, funded, or carried
out project which was the subject of
consultation. To the extent that the
Associate Solicitor's opinion created the
opposite impression, the Service takes
this opportunity to clarify this point.
Moreover, as suggested by some
commenters, and for the reasons
outlined above, the Service has deleted
its reference to the Interior Department
position an "cumulative effects" in 88
LD. 903 (1981) in the definition section.
The Service disagrees with the
commenter who stated that the citation
to the legal opinion in the proposed
definition denied the public meaningful
comment on these regulations. The
policy was widely known, and it was
explained in the preamble to the
proposed rule. The Associate Solicitor's
opinion on "cumulative effects" is
published in Interior Decisions, a
publication available to the general
public. Finally, the opinion does not
represent a policy change subject to
Administrative Procedure Act (APA)
informal rulemaking proceedings. It
represented Interior's legal
interpretation of the scope of
"cumulative effects" under section 7,
adopted and published in 1981 in
keeping with APA requirements. 5
U.S.C 552(a). Therefore, no reproposal
Is needed on this issue. .
The definition of "designated non-
Federal representative" is adopted from
the proposal in part. First in response to
a comment the Service explains that the
non-Federal representative may conduct
informal consultations ({402.13) and/or
prepare biological assessments
(1402.12). However, Federal agencies
cannot delegate their role in initiating
formal consultation, a conference, or
early consultation. The second sentence
of the proposed definition has been
deleted but a new { 402.08 has been
added to further explain the role of the
designated non-Federal representative.
The proposed definitions of
"destruction or adverse modification''
and "jeopardize the continued existence
or* received a lot of attention from
commenters. Both definitions contained,
as did the 1978 rule, the phrase "survival
and recovery." The final rule retains the
language of the proposed definitions,
except for the changes noted below.
Also connected with these terms is the
definition of "recovery." The "recovery"
of a listed species means that the status
-------
19994
Fedazal Register / VoL 51, No. 106 / Tuesday, fune 3, 1386 / Rules and Regulations
of tbe specie* has improved to the point
at which it may be removed from the
Lists of Endangered and Threatened
Wildlife and Plants.
The principal controversy involving
the jeopardy" and "destruction or
adverse modification" definitions was
that under the proposed rule, to find
that an action is Likely to jeopardize a
listed species or result in the destruction
or adverse modification of critical
habitat, the Service must identify
detrimental impacts to "both the
survival and recovery" of the bated
species. The conjunction "and" was
used In the 1978 rule's definitions of
these phraBes, bat the ward "both" was
added by the proposed rule to
emphasize that except In exceptional
circumstances, injury to recovery alone
would not warrant the issuance of a
"jeopardy" biological opinion. The
Service adopts these definitions
substantially without change from the
proposed rale: this does not represent a
change in policy, as one commenter
charged, because the Service has
internally interpreted the "jeopardy"
standard as requiring detrimental
impacts to the continued existence of a
species under a joint survival and
recovery concept Other Federal
agencies are assured that the same
"jeopardy" standard under which their
actions have been evaluated In the past
will be continued under this final rule.
Several commenters urged the Service
to strike the "and" and insert "or" in the
definitions of "jeopardy" and
"destruction or advene modification."
They argued that injury to recovery for
an already depleted species would
require the issuance of a jeopardy
opinion. They also remarked that the
Service's position disregarded the
conservation requirements of the Act
failed to adequately protect critical
habitat operated to weaken or nullify
recovery efforts, and otherwise violated
the purposes and policies of the Act
These co mm enters misconstrued the
Service's role in conducting -
consultations under section 7(a)(2) of the
Act. The purpose of consultation Is to
identify conflicts between proposed
Federal actions and the "jaopardy"
standard of section 7(a)(2). Tha
"continued existence" of tbe species is
tbe key to the jeopardy standard,
placing an emphasis on Injury to a
species" "survival." However, significant
impairment of recovery efforts or other
adverse effects which rise to the level of
"jeopardizing" the "continued
existence" of a listed species can also
be the basis for issuing a "jeopardy"
opinion. The Service acknowledges that
in many cases, the extreme threats
faced by Bome listed species will make
the difference between injury la
"survival" and to "recovery" virtually
zero.
One commenter disagreed that actions
adversely affecting survival of a species
will also airways adversely affect its
recovery. The commenter did not cite
examples where an action that
jeopardized "survival" of a species
would not jeopardize its "recovery." The
Service is not aware of any examples
and believes that it would be very
difficult to recover a species whose
survival had been placed In jeopardy.
The very concept of "jeopardy" Is that a
Federal agency should not authorize,
fund, or carry out an action that would
injure a listed species' chances for
survival to the point that recovery is not
attainable. If survival is jeopardized,
recovery Is also jeopardized. As noted
above, though, these concepts are
generally considered together in
analyzing effects, and it is difficult to
draw clear-cut distinctions.
The concept of "survival" is discussed
above, but la not defined in the Act or in
these regulations. Two commentera felt
that "survival" should be defined in the
regulations, and one urged the Service to
adopt the following specific definition:
"Survival" far ¦ spedas means retention of
a sufficient number of individuals and/or
populations with necessary habitat to insure
that the (pedes will keep its integrity tn the
face of genetic recombination and known
environmental fluctuation*.
The Service agrees with the criteria
set out in the above definition, but
declines to adopt a regulatory definition
for "survival" because this concept
varies widely among listed species. The
Service will apply the statutory
standard ol jeopardy to the continued
existence of a species on a case-by-case
basis, taking into account the particular
needs of and the severity and
immediacy of threats posed to a listed
species, Tlie Service is not attempting to
predetermine the results of any future
consultations by announcing these
interpretations of the "jeopardy"
standard, but instead is emphasizing
what "jeopardy" is and how it should be
applied in the section 7(a)(2) process.
One commenter urged the Service to
go further and forbid any Federal action
to proceed, regardless of a "no
jeopardy" finding, if the proposed action
would adversely affect the recovery of a
listed species. Numerous commenter*
cited sections 2(c)(1). 3(3], and 7(a)(1) of
the Act as authority for the Service to
ban Federal agency actions that "violate
the requirement to conserve endangered
species."
The commenters misinterpret the
statutory changes which the
Amendments have made to section 7,
and they misconstrue court decisions
which have noted the apparent
"heightened" responsibility of the
Secretary. Tbe Service will undertake
programs for the conservation of listed
Bpecies and will consult with other
Federal agencies attempting to do the
same. The Service will not nor does it
have the authority to. mandate how or
when other Federal agencies are to
implement their responsibilities under
section 7(a)(1), nor is the Service
authorized to issue s biological opinion
under section 7(a)(1) of the Act Section
7(a)(1) has a limited purpose under the
Act to authorize Federal agencies to
factor endangered species conservation
Into their planning processes, regardless
of other statutory directives.
In contrast, section 7(a)(2) contains
the mandatory "jeopardy" standard. The
prohibitory features of section 7. and die
exemption process added by the 1978
Amendments, focus on the provisions of
section 7(a)(2). Although there is no
express legislative history directfy
weighing and comparing the relative
strengths of section 7(b)(1) with 7(a)(2),
there can be no doubt that Congress
considered tbe jeopardy standard of
section 7(a)(2) as being the substantive
comers tone of section 7:
The tana Is likely to jeopardize" ii used
becsuse the fimdammtaJ obligation of
lection 7(a) of tha act is that Federal agencies
insure their actions do not jeopardize the
continued axlstsace of an endangered or
threatened species.
S. Rep. No. 151.96th Cong~ 1st Sess. 4
(1979) (emphasis added). Congress
intended that the "jeopardy" standard
be thB ultimate barrier past which
Federal actions may not proceed, absent
the issuance of an exemption. The
commenters' argument would require
Federal actions to halt if they failed to
conserve listed spedes. a result clearly
not Intended by Congress. Congress
intended that actions that do not violate
section 7(a)(2), or actions receiving an
exemption from the requirements of that
subsection, be allowed to proceed.
Commenters argued that it would be a
violation of section 7(a)(1) for the
Service to issue a "no jeopardy"
biological opinion for a proposed
Federal action (hat would have an
adverse effect on the recovery of a lisiect
species. As previously stated, the
Service lacks authority to issue
biological opinions under (hat
subsection, and tha Act does not
mandate particular actions to be taken
by Federal agencies to implement
7(a)(1). Furthermore, adverse effects not
-------
Federal Register / Vol. 51. No. 106 / Tuesday, June 3. 1986 / Rules and Regulations 19935
rising to the level of "jeopardizing the
continued existence" of a listed species
cannot be the basis for issuing a
jeopardy opinion.
The Service disputes two commenters'
assertions that "the Service now
proposes to allow the 'continued
existence' of a listed species to reach a
state of likely jeopardy." The Service
has followed and will continue to follow
the policy of strictly applying the
jeopardy standard of section 7(a)(2) in
the consultation process. The Service
has not and will not relax the statutory
standard.
One commenter stated that limiting
the definition of "destruction or adverse
modification" to critical habitat is
illogical This limitation is mandated by
the strict language of section 7(a)(2) and
cannot be altered by the Service,
although habitat destruction can be the
basis for a jeopardy opinion in
appropriate cases.
Another commenter requested that
examples be given of actions that might
indirectly alter critical habitat The
Service responds with the following
examples of indirect alteration of
critical habitat (which is not intended as
an exclusive list): ground water pumping
that occurs on land adjacent to the
critical habitat area, but nevertheless
diminishes essential ground water levels
within the critical habitat air pollution
created by an action not occurring
directly on the critical habitat area that
causes a deterioration of essential air
quality levels in the critical habitat;
contamination of water supply within
the critical habitat caused by release of
toxic substances outside of the critical
habitat area: etc.
In the definition of "jeopardize the
continued existence of," one commenter
suggested the word "could" be
substituted for "would" in the phrase
"would be expected, directly or
indirectly, to reduce appreciably the
likelihood of... the survival and
recovery of listed species . . . Such a
change would be an unwarranted
deviation from the language of the 1978
rule in light of subsequent Amendments
to the Act. The Service retains the
substance of the proposed language, but
does delete the phrase "or otherwise
adversely affecting the species"
because, as several commenters
suggested, the phrase is confusing and
adds nothing to the definition.
In response to several comments, the
Service has modified the definition of
"recovery" to make it clear that
recovery is not attained until the threats
to the species as analyzed under section
4(a)(1) of the Act have been removed.
The protective measures provided for
listed species under the Act are no
longer needed if endangered or
threatened status is no longer applicable
to a species under section 4(a)(1).
The definition of "Director" has been
modified by the addition of the phrase
"or his authorized representative" after
"the FWS regional director" and
"Assistant Administrator for Fisheries"
to accommodate present and future
delegations of authority to carry out
certain consultation responsibilities.
Although the Minerals Management
Service requested that all Outer
Continental Shelf (OCS) section 7
biological opinions Issued by the FWS
be. signed by the Washington Office, the
authority to sign such opinions will
remain with the regional offices because
they have been staffed specifically to
conduct all interagency consultations
and to sign the resulting biological
opinions.
The term "early consultation" was
included in the proposed rule pursuant
to the provisions of section 7(a)(3). This
section authorizes the Service to consult
with Federal agencies at the request of
prospective applicants, prior to the
submission of the permit or license
application to that Federal agency. The
definition has been modified to
reference the appropriate section of the
Act.
One commenter requested that
instead of using the term "early
consultation," the Service refer to this
process as "consultation on behalf of
prospective applicants." The commenter
was concerned that by calling this pre-
application process "early
consultation," the Service would fail to
alert Federal agencies and applicants of
the need to determine impacts to
endangered or threatened species early
in the planning stages of all of their
actions, regardless of whether the
consultation is early, informal or
formal. The Service retains the label
"early consultation" due to its
convenience, its frequent use in the
committee reports on the 1982
Amendments, and its common
acceptance within and outside the
Service. The Service believes that the
language provided in S402.14(a).
advising Federal agencies to review
their actions at the earliest possible
time, provides adequate safeguards to
address the commenters' concerns.
The definition of "Federal agency"
has been deleted since it is defined in
section 3(7) of the Act The Service
declines to expand the statutory
definition to accommodate one
commenter's concern. The statutory
definition adequately provides notice
that all departments, agencies, and
instrumentalities of the United States
come within the scope of section 7. The
Service will not interpret this term
further in the final rule.
The definition of "formal
consultation" has been modified to
specify that it is the consultation
required under section 7(a)(2) of the Act.
Other minor, technical changes have
also been made. The phrase "after it has
been determined, through informal
consultation with the Service, that its
action may adversely affect listed
species or critical habitat" has been
deleted from the proposed definition
because, as recommended by some
commenters. informal consultation is
strictly an optional process. Although
the Federal agency may elect to enter
into informal consultation to determine
if formal consultation is required, the
Federal agency can initiate formal
consultation any time that it determines
its action may affect listed species or
critical habitat
"Further discussion" was an optional
process included in the proposed rule. It
provided the Federal agency and any
applicant the opportunity to continue
consultation after the issuance of a
biological opinion in order to discuss
with the Service any reasonable and
prudent alternatives and any
conservation recommendations.
Recommendations and alternatives
could be refined or developed during
these discussions, and consultation
would terminate with the Federal
agency's written notice of its final
decision on the action. Because of
concerns expressed by commenters. this
provision contained in proposed {402.16
has been deleted from the final rule.
Although several commenters
supported this provision, many opposed
further discussion contending that it is
unnecessary, that all reviews and
discussions should occur prior to the
issuance of the biological opinion, that it
extends consultation beyond the
statutory time limits, and that it lacks
statutory authority. Although the
process was optional some commenters
believed that there was an implication
that the Federal agency or applicant
would have a duty to engage in further
discussion.
Although further discussion has been
deleted, the Service is available to
discuss the biological opinion, any
reasonable and prudent alternatives,
and any conservation recommendations
with the Federal agency and any
applicant on an informal basis. If
revisions to the opinion are necessary,
consultation can be reinitiated and a
revised opinion issued.
"Incidental take" has been clarified in
the final rule as those takes that result
from, but are not the purpose of.
-------
19938
Fedaial Register / Vol. 51. No. 106 / Tuesday. June 3. 1966 / Rules and Regulation*
carrying out an otherwise lawful activity
conducted by the Federal agency or the
applicant. As requested by one
commenter, the Service that
otherwise lawful activities are those
actions that meet all State and Federal
legal requirements except for the
prohibition against taking in section 9 of
the Act The Service believes that the
definition, as clarified in the final rule, is
adequate.
The definition of "informal
consultation" has been clarified in the
final rule to indicate that it is an
optional process that includes all
discussions, correspondence, etc.,
between the Service, Federal agency,
and designated non-Federal
representative prior to formal
consultation. To address one
commenter's concerns, "If required" has
been included after 'formal
consultation" to clarify that formal
consultation is not always required after
informal consultation. Through informal
consultation, a Federal agency may
determine that formal consultation is not
required.
The definition of "listed species" is
adopted as proposed. Contrary to the
concern of one commenter, aquatic
invertebrates are not excluded from this
definition, because all listed species in
50 CFR 17.11-17.12 are specifically
included.
The definition of "major construction
activity" was included in the definition
of biological assessment in the proposed
rule and is adopted substantially as
proposed. As suggested by many
commenters, it has been made a
separate definition. Whether a Federal
action is a major construction activity,
as defined in these regulations, is the
standard used for determining whether a
Federal agency must prepare a
biological assessment A "major
construction activity" is defined as a
construction project (or other
undertaking having similar physical
impacts) that is a major Federal action
significantly affecting the quality of the
human environment for purposes of
NEPA. The term i in iini|i—ii dams,
buildings, pipelines, roads, water
resource developments,
improvements, and other ncfa
undertakings which significantly modify
the physical environment
A vast array of comments were
received concerning the scope of a
major construction activity that require*
the preparation of a biological
assessment Several commenters noted
that only major Federal actions
requiring the preparation of an
environmental impact statement (EIS)
pursuant to NEPA should require the
preparation of a biological assessment
under section 7(c) of the Act Other
commenters argued that assessments
can only be required for major Federal
actions involving construction activities,
and suggested that the phrase "or other
undertakings having similar physical
impacts" be eliminated from the
definitibn. Four commenters thought that
the standard in the proposed rule was
too narrow, because the limitation to
major Federal actions, and/or the
limitation to construction projects and
other undertakings having similar
physical impacts, were arbitrary and
without legal basis. The Service has
adopted this definition of major
construction activity as proposed for the
reasons set out below.
The legislative history of section 7(c)
of the Act plainly focused the
mandatory duty to prepare biological
assessments on "major Federal actions
. . . designed primarily to result in the
building or erection of dams, buildings,
pipelines and the like." HJL Conf. Rep.
No. 697, supra. The two-pronged
regulatory test adopted in this rule-
major Federal action and construction
project (or other undertaking having
similar physical impacts}—clearly
tracks the quoted language from the
Conference Report to the 1979
Amendments. The Service will not
require biological assessments for
projects that an not major Federal
actions for purposes of NEPA. Further,
the Service will not require biological
assessments for actions that do not
involve construction or activities having
physical impacts similar to construction,
such as dredging, blasting, etc. This
limitation derives support from the 1979
Conference Report reference to actions
designed primarily to result in the
building or erection of various projects.
These other "potentially destructive
activities," HJL Rep. No. 1625, supra.
having physical impacts similar to
construction projects, will require the
preparation of an assessment but only if
they are major Federal actions for
purposes of NEPA.
The Service declines to limit the scope
of the definition of a major construction
activity to major Federal actions
involving construction projects, because
other potentially destructive activities
that are major Federal actions may have
similar physical impacts and should be
included. The Service is confident that
the courts will be able to apply ihis
standard consistent with the Act and the
legislative history.
Contrary to the belief of one
commenter, the Service has not
abrogated its authority under section
7(c). That commenter urged the Service
to change tbi* nile by requiring
biological assessments "for actions that
taking into consideration cumulative
effects, may be 'potentially
destructive.' " Citing a February 1980
legal opinion issued by the Assistant
Solicitor for Fish and Wildlife,
Department of the Interior, the
commenter noted that cumulative effects
may trigger the requirement that an
assessment be prepared, although the
Service must defer to the Federal
agency's decision on whether a major
Federal action exists. Contending that
Congress would have used the word
"shall" instead of "may" in the last
sentence of section 7(c)(1) if it had
intended that assessments be required
only for major Federal actions for
purposes of NEPA. the commenter
argued that the definition of "major
construction activity" should be
expanded:
"Major Com traction activity" means any
planned, temporary, or permanent physical
modification to the environment Examples of
such projects tnctude but are not limited to.
dredging, drilling. tits
preparation, road construction, the erection
of structures such as dams and tndkttngs. or
any other potentially destructive activities.
The commenter's suggested language
goes well beyond the above-dted
legislative history of the Act which
clearly limited this biological assessment
requirement to major Federal actions
within the """¦"'"g of NEPA that are
construction projects or that involve
similar physical impacts. Further, the
legal opinion of the Assistant Solicitor
cited by the commenter doe* not support
the commenter's argument because that
opinion dealt with cumulative effects of
a proposed construction project and a
basic rule of NEPA case law that
cumulative impacts of aq action can
trigger the requirement that an EIS be
prepared. Thus, the basic elements of
this rule's requirements—major Federal
action [e.g., EIS, or the functional
equivalent required) and construction
project (or activity involving similar
physical impacts)—were assumed to be
appropriate standards by the Assistant
Solicitor. The use of the word "mey"
instead of "shall" in section 7(c) means
nothing more than Congressional intent
that the duty to coordinate these review
processes is discretionary with the
Federal agency.
As requested by one commenter, the
final definition clearly states that an
action must be both a major Federal
action for purposes of NEPA and a
construction project (or other activity
involving similar impacts). Therefore, it
plainly follows that although dams,
pipelines, etc. are construction
activities, a biological assessment is not
-------
Federal Reciter / Vol. 51. No. 106 / Tuesday. June 3. 1986 / Rules and Regulations 19937
required unless the action is also a
major Federal action.
Two commenters argued that OCS
leasing, exploration, and development/
production activities should be exempt
from the section 7(c) requirement
because such an analysis is presently
covered by NEPA compliance as
addressed in the Outer Continental
Shelf Lands Act. Other commenters
agreed with the Service that biological
assessments would be required for
development/production activities on
the OCS, and, generally, would not be
required for leasing and exploration
activities that do not involve a
significant modification of the physical
environment. The Service adopts its
position as proposed, because no
exemption exists under section 7(c) if a
biological assessment is required for an
action. In some instances, OCS
exploration activities may require the
preparation of a biological assessment
e.g.. major Federal action involving
exploration through construction of
artificial gravel islands. However, in
most cases major Federal exploration
activities on the OCS will involve the.
drilling of test wells, actions that will
not require the preparation of
assessments.
The definition of "preliminary
biological opinion" is adopted as
proposed.
"Hie definition of "proposed critical
habitat" is adopted as proposed with the
addition of the phrase "or revised" after
"designated." lie commenter that
suggested this correction accurately
noted that proposals may be made to
designate or revise critical habitat under
section 4 of the Act.
The definition of "proposed species"
is adopted as proposed.
"Reasonable and prudent
alternatives" is defined in the final rule.
Section 7(b) of the Act requires die
Service to include reasonable and
prudent alternatives, if any, in a
"jeopardy" biological opinion. An
alternative is considered reasonable and
prudent only if it can be implemented by
the Federal agency and any applicant in
a manner consistent wttk die intended
purpose of the action; and if the Director
believes it would avoid the of
jeopardizing the continued existence of
listed species or resulting in the
destruction or adverse modification of
critical habitat of such species. Further,
the Service should be mindful of the
limits of a Federal agency's jurisdiction
and authority when prescribing a
reasonable and prudent alternative. An
alternative, to be reasonable and
prudent, should be formulated in such a
way that it can be implemented by a
Federal agency consistent with the
scope of its legal authority and
jurisdiction. However, the Service notes
that a Federal agency's responsibility
under section 7(a)(2) permeates the full
range of discretionary authority held by
that agency: i.e.. the Service can specify
a reasonable and prudent alternative
that involves the maximum exercise of
Federal agency authority when to do so
is necessary, in the opinion of the
Service, to avoid jeopardy. The Service
recognizes that economic and
technological feasibility are factors to
be used in developing reasonable and
prudent alternatives, as requested by'
one commenter. The definition of
"reasonable and prudent alternatives"
has been amended to reflect these
considerations. If there are no
alternatives that meet the definition of
"reasonable and prudent alternatives,"
the Service will issue a "jeopardy"
biological opinion without alternatives.
Two commenters stated that
reasonable and prudent alternatives
should include mitigation measures
designed to reduce adverse effects, i\e«
conservation recommendations. One of
those commenters urged the Service to
limit the scope of recommended
alternatives to those "consistent with
the scope, magnitude, and duration of
the project as well as the extent of its
adverse effects." rtrst because there Is
a distinction between "reasonable and
prudent alternatives" (that satisfy
section 7(a)(2)) and "conservation
recommendations" (that are authorized
by section 7(a)(1)), the Service declines
to include conservation measures within
the scope of the definition. Second, the
Service agrees that reasonable ami
prudent alternatives should be
consistent with the intended purpose of
the action and should therefore be
economically and technologically
feasible, but the Service cannot limit its
range of choices to the criteria suggested
by the commenter. Reasonable and
prudent alternatives must cover the full
gamut of design changes that are
economically and technologically
feasible for an action, independent of
who is sponsoring the action.
Two commenters asked that
"reasonable and pnident measures" be
defined, and the Service has inserted a
definition in the final rule. This addition
clarifies the distinction between
"reasonable and prudent alternatives"
included in a "jeopardy" biological
opinion and "reasonable and prudent
measures" provided in an Incidental
take statement The Service agrees with
several commenters that reasonable and
prudent measures are not the same as
reasonable and prudent alternatives.
Substantial design and routing
changes—appropriate only for
alternatives to avoid jeopardy—are
inappropriate in the context of
incidental take statements because the
* action already complies with section
7(a)(2). The commenter that advocated
an "alternatives" approach for
reasonable and prudent measures
misapplied the legislative history of the
1982 Amendments. Reasonable and
prudent measures were intended to
minimize the level of incidental taking,
but Congress also intended that the
action go forward essentially as
planned. Therefore, the Service believes
that they should be minor changes that
do not alter the basic design, location,
duration, or timing of the action. The
section 7 obligations, of Federal agencies
are not expanded by the application of
reasonable and pnident measures,
which strictly govern the scope of the
section 9 exemption for incidental
takings.
The definition of "Service" is adopted
as proposed.
Section 402.03 Applicability.
This section, which explains the
applicability of section 7, implicitly
covers Federal activities within the
territorial jurisdiction of the United
States and upon the high seas as a result
of the definition-of "action" in {402.02.
The explanation for the scope of the
term "action" is provided in the
discussion under $402.01 above.
Section 402.04 Counterpart
Regulation*.
The Service has retained the
counterpart regulations section of the
1978 rule as the new S402A4 that
authorizes the drafting of joint
counterpart regulations by Federal
agencies and the Service. "These
counterpart regulations would allow
individual Federal agencies to 'fine tune'
the general consultation framework to
reflect their particular program
responsibilities and obligations." 43 FR
87a 871 (Ian. 4,1978).
Counterpart regulations must be
published first as proposed rules with a
minimum 80-day public comment period.
Such counterpart regulations must retain
the overall degree of protection afforded
listed spedes required by the Act and
these regulations. Changes in the
general consultation process must be
designed to °nlu'n" its efficiency
without eliminating ultimate Federal
agency responsibility for compliance
with section 7. As long as the general
consultation process is used as a
starting point Federal agencies can
anticipate little difficulty in securing
approval of the Service for counterpart
regulations.
-------
19938
Federal Register / Vol. 51. No. 106 / Tuesday. |une 3. 1966 / Rules and Regulations
One Federal agency commented that
the counterpart regulation process is a
time-consuming alternative. The Service.
admits that informal rulemaking takes
time and effort, but believes that the
"fine tuning" that could occur through
the development of counterpart
regulations might, in the long run.
provide a solid return in time and
resources saved through the use of a
more compatible consultation
procedure.
Section 402.05 Emergencies.
Section 402.05 provides a modified
consultation procedure for the Service to
respond to emergency situations. This
provision applies to situations involving
acts of God. casualties, disasters,
national defense or security emergencies
(added to the rule in response to public
comments), etc
Upon request by the Federal agency,
the Service may cany out consultation
through procedures other than those
provided under these regulations, as
long as such emergency procedures are
consistent with sections 7(a}-(d) of the
Act This allows, for example,
consultation through informal means
(e,g.. a telephone call) and. therefore,
rapid responses to emergency situations.
Several commenters suggested that
specific procedures should be set out to
provide guidance to Federal agencies
facing emergency situations. One
commenter suggested that consultation
could be initiated informally, such as
through a telephone call and the Service
could then communicate its information
and recommendations over the
telephone. Because of the severe time
constraints inherent in an emergency,
this informal approach is the method the
Service anticipates will be used by a
Federal agency to conduct a
consultation for a bona fide emergency.
One commenter felt that minimum
requirements should include
"documentation of the nature of the
emergency and justification for an
expedited consultation." Hie Service
agrees and has required, in a new
paragraph (b) to this section, that the
nature of the emergency and the
justification for using an expedited
process be documented and forwarded
to the Service. However, the Service has
not required that this be done during the
emergency or expedited consultation, as
this may not always be possible. The
new paragraph (b) requires that the
Federal agency conduct an "after the
fact" consultation. The Service will
evaluate the information submitted by
the Federal agency, i.e.. the nature of the
emergency actions, justification for the
expedited consultation, and an
evaluation of the impacts to listed
species and critical habitat and issue a
biological opinion including the
information and recommendations given
during the emergency consultation. This
will serve not only to document fully the
consultation, but may assist the Federal
agency in responding to similar
emergencies.
One commenter argued that when
dealing with a fire, flood, earthquake, or
storm, there is not enough time or
opportunity for a Federal agency to
undertake consultation through an
alternate process determined by the
Director to be consistent with section 7
The Service notes that the utmost
flexibility is needed to handle the most
extreme emergencies and believes that
the informal process outlined in this
section would satisfy the commenter's
concern for the availability of prompt
consultation and decisionmaking in
emergency situations.
The Service further recognizes that it
is sometimes necessary to take
immediate steps to contain, limit or
alleviate an emergency in order to
protect health, safety, and welfare prior
to initiating any form of consultation.
However, the Service would like to
stress the fact that its early involvement
is important in order to take advantage
of its expertise in mlqjmiiing the effects
of emergency response activities on
endangered and threatened species.
Federal agencies must exercise
discretion when responding to an
emergency as to when to consult with
the Service. This will depend on the
nature of the emergency and the actions
that are immediately required. The
Federal agency should contact the
Service as soon as practicable, keeping
in mind the informal nature of
emergency consultation and Service
expertise in minimiring the impacts of
emergency response activities on
endangered and threatened species.
Section 402.06 Coordination with
Other Environmental Review».
This section on coordination with
other environmental reviews contains
paragraphs (a) and (b) of {402.10 and
paragraph (c) of {402.17 of the proposed
rule. The substance of these paragraphs
has been adopted, but the format has
been altered.
These regulations, following the 1978
rule, allow Federal agencies to
coordinate their consultation,
conference, and biological assessment
responsibilities under the Act with the
agency's responsibilities under other
statutes such as NEPA (42 U.S.C. 4321 et
seq.) or the Fish and Wildlife
Coordination Act (FWCA. 16 U.S.C. 661
et seq.). The Service encourages Federal
agencies to coordinate these
responsibilities, but believes it is
preferable to allow Federal agencies to
do so in a manner that best conforms to
their particular actions and which they
believe is mo9t efficient. Therefore, the
sentences in the proposed 8402.10(b)
stating that biological assessments
should be incorporated into the
documents required by other statutes
(such as NEPA) have been dropped from
the final rule.
Several commenters applauded these
paragraphs because the coordination of
environmental reviews would reduce
duplication of paperwork and save time.
One commenter requested guidance on
how a NEPA review of endangered
species issues should be conducted. The
Service is not in a position to provide
criteria that will ensure adequate NEPA
compliance on endangered species
issues. The Service suggests that the
commenter contact the Council on
Environmental Quality, the agency in
charge of NEPA compliance, to obtain
such information.
Another commenter expressed
concern that, in simplifying the
consultation process, safeguards should
be used to avoid potential abuse and
substantive problems. The commenter
feared that without safeguards. NEPA
compliance might be construed as being
less necessary on endangered species
matters. The Service Is also concerned
that it retain sufficient review capability
to identify potential conflicts between
proposed Federal actions and listed
species. Therefore, it has slightly altered
its consultation procedures in this final
rule to ensure that all Federal actions
that "may affect" listed species receive
some degree of review under informal or
formal consultation.
The concluding sentences of
paragraph (a) emphasize that although,
for example, a biological assessment
can be incorporated into an EIS. the
procedures of these regulations also
must be satisfied to ensure adequate
and timely analyses during the section 7
consultation process. These sentences
also express the intent of the Service to
avoid a fragmented analysis of
environmental concerns through the
Service's direct efforts to provide a
coordinated review. The Service
declines to delete these sentences as
requested by several commenters.
Under paragraph (b), the Service
agrees with a comment that the
biological opinion should be stated in
the final environmental impact
statement or environmental assessment.
A statement of the opinion may be a
summary of its findings and conclusion:
contrary to the fear of one commenter
that the entire opinion must be repeated
-------
Federal Register / Vol. 51, No. 106 / Tuesday, )urte 3. 1968 I Rule* and Regulations
1993J
in the text of the NEPA document. The
Service does feel that the entire opinion
should be attached as an exhibit to the
NEPA document if completion time
permits.
Section 402.07 Designation of Lead
Agency.
This section, which governs the
designation of a lead agency, is adopted
from S 402.10(d) of the proposed rule.
One commenter requested thai the
section be amended so that only the
lead agency is required to notify the
Director that it will be conducting
consultation on behalf of itself and all
other cooperating agencies. The Service
has adopted this suggestion.
Section 402.08 Designation of Non-
Federal Representative.
A new $402.08 has been added to the
final rule to clarify the role of the
designated non-Federal representative
and was derived from St 40242 and
402.12 [a) and (b)(5) of the proposed rule.
Because the designated non-Federal
representative may or may not be the
applicant, there is a difference in the
role the representative can play in the
consultation. If the representative Is not
the applicant the information-gathering
functions, through informal consultation
(9402.13) and/or through the preparation
of a biological assessment (1402.12). is
the full extent of its participation.
However, if the representative is an
applicant its role in consultation is two-
fold As the representative, it may
conduct the Information-gathering
functions identified above; as the
applicant it may continue its
participation into formal consultation.
If an applicant is involved and does
not desire to be the designated non-
Federal representative, the Federal
agency and the applicant must agree on
the party to be designated. The Director
shall be notified, in writing. If a nan-
Federal entity has been designated to
represent the Federal agency far the
informal consultation or biological
assessment procedure*.
One commenter stated that prior
notice to the Director of the deaipiatlon
of a non-Federal representative is
unnecessary. The Service disagrees
because there is a legitimate need for it
to be certain of the Federal agency's
concurrence in the representation.
However, the Service notes that there is
a degree of flexibility here; Le*
designation in advance for a continuous
action or for a group of related actions is
acceptable. In response to one comment,
the Service agrees that the designated
non-Federal representative may only
submit a species list under the biological
assessment procedures (9 402.12) if the
Federal agency has. previously to or
simultaneously with this notice,
provided its written designation to the
Director.
Another commenter questioned the
Service's authority to conduct informal
consultations with non-Federal
representatives in place of the Federal
agencies. The Service acknowledges
that the Federal agency must retain the
responsibility to initiate formal
consultation along with its ultimate
responsibility to ensure that its actions
are not likely to jeopardize listed
species, but the designation of a
representative by the Federal agency to
conduct informal consultation does not
lessen these responsibilities or eliminate
the Federal agency's duty to review its
actions. Instead, the designation of a
representative allows the Federal
agency to coordinate all of its
environmental reviews, thereby saving
time and resources to obtain a single,
comprehensive analysis of the action
and its potential Impacts. The agency
must still review the work product and
independently reach iU own conclusions
and decisions. The representative does
the ground work (data compilation and
synthesis): the Federal agency cannot
delegate its duty to review, analyze, and
formally consult
Concerned that a conflict of interest
could exist if applicants were allowed to
be designated aB non-Federal
representatives, one commenter cited 40
CFR 1506.5(c) (NEPA regulation) as
authority for eliminating applicants from
the field of potential representatives.
The Service declines to make the
suggested change for the following
reason. Section 7(c)(2) itself recognizes
that exemption applicants (including
permit or license applicants) may
prepare biological assessments in
cooperation with the Service and under
the supervision of the Federal agency.
This express statutory opportunity for
"interested parties" (as applicants
would always be) to prepare biological
assessments runs counter to the NEPA
rule and shows the clear Congressional
intent in favor of full applicant
involvement in the section 7 process.
Although applicants may fill the role of
non-Federal representatives, the
ultimate responsibility for compliance
with section 7 remains with the Federal
agency. In response to one commenter,
the regulations have be$n changed to
eliminate the requirement that the
Federal agency "participate in the
preparation" of the biological
assessment. The Service believes that
the Federal agency may fulfill its
responsibilities by providing guidance
and supervision, and by independently
reviewing and evaluating the work
product of the applicant Responsibility
far carrying out negotiations with the
Service may aol be delegated to the
applicant/representative, as suggested
by this commenter. In addition. Federal
agencies cannot delegate their role in
initiating formal consultation,
conference, or early consultation.
Section 402.09 Irreversible and
Irretrievable Commitment of Resources.
Section 7(d) of the Act provides that
after initiation of consultation required
under section 7(a)(2), the Federal agency
and any applicant shall make no.
irreversible or irretrievable commitment
of resources with respect to the Federal
action which has the effect of
foreclosing the formulation or
implementation of any reasonable and
prudent alternatives that would avoid
violation of section 7(a)(2). This
prohibition does not apply to actions
affecting proposed species or proposed
critical habitat This mandatory
restriction on commitment of resources
is set out in 940240 of the final rule
(formerly 9402.11 of the proposal). In
response to comments, the language of
the proposed rule was corrected to
conform mora closely to section 7(d).
Another commenter requested that the
sentence dealing with section 7(d) be
amended by adding "measures" after
the phrase "reasonable and prudent
altemative[s]" to bring the regulation in
line with the statute. The Service
declines to make this change because it
would tend to confuse "reasonable and
prudent alternatives" that are included
in jeopardy biological opinions with
"reasonable and prudent measures" that
are included in an incidental take
statement under section 7(b)(4) of the
Act The proposed language describing
the section 7(d) prohibition accurately
implements die Act and Is adopted in
this final rule.
The proposed rule addressed the
duration of the section 7(d) prohibition
as. follows:
This requirement exists until: a "no
jeopardy" biological opinion is Issued by the
Service...; the Federal agency adopts
reasonable and prudent alternatives; or an
exemption is granted under section 7
Proposed rule, 46 FR 29900. 30000 (|une
29.1983). proposed to be codified at 50
CFR 402.11. Several commenters asked
for a clarification or expansion of these
criteria that terminate section 7(d)
restrictions. Noting that the Act is silent
as to when the section 7(d) prohibition
ceases, one commenter contended that
the prohibition should end when
consultation is terminated. Another
commenter. concerned that the proposed
language would deprive Federal
-------
19940
Federal Register /.Vol. 51. No. 106 / Tuesday, June 3. 1966 / Rules and Regulations
agencies of the responsibility and
authority to determine compliance with
section 7(a)(2), urged the addition of a
fourth criterion that would terminate the
section 7(d) prohibition if "the Federal
agency determines that its proposed
action will not jeopardize the continued
existence of endangered and threatened
species or adversely affect critical
habitat." Another commenter went
further and urged the Service to adopt
other criteria where Federal agency
compliance with section 7(a)(2) would
remove the section 7(d) restriction. Two
other commentera felt that the second
criterion—adoption of reasonable and
prudent alternative*—must be restricted
to those recommended by the Service.
They opposed allowing the Federal
agency to formulate its own "reasonable
and pnideat alternatives" without
Service approval in order to avoid the
prohibition of section 7(d).
The commentera raise valid concerns
that illustrate the need to reexamine the
duration of the prohibition against the
irreversible and irretrievable
commitment of resources. First the
Service recognizes that although its
biological opinions issued by authority
of section 7(b) are entitled to great
deference, the ultimate decision of
whether to proceed with an action in
light of section 7 responsibilities rests
with the Federal agency. The proposed
language did preempt Federal agency
discretion by placing an agency that
disagreed with the conclusion of the
Service's biological opinion in the
awkward position of facing section 7(d)
restrictions on its action, even though it
had determined through its own analysis
that the section 7(a)(2) standards were
satisfied. Second, case law indicates
that section 7(d)'s prescriptive force
continues while Federal agency efforts
to conform its action to the requirements
of section 7(a)(2) are "ongoing." See
North Slope Borough v. Andrus. 642 F.2d
589. 611 n.143 (D.C. Cir. 1980);
Conservation Law Foundation of New
England. Inc. v. Andrus, 623 F.2d 712,
714 n.l (1st Cir. 1979). Ilia final rule has
been amended to provide that the
section 7(d) prohibition is in force during
consultation and continues until the
requirements of section 7(a)(2) are
satisfied.
Therefore, if a Federal agency
receives a "no jeopardy" biological
opinion from the Service or chooses any
reasonable and prudent alternative
recommended by the Service, the
requirements of section 7(a)(2) are met
and the section 7(d) prohibition expires.
If the Federal agency disagrees with a
"jeopardy" biological opinion or chooses
an alternative not provided by the
Service based on its own analysis, then
the validity of the Federal agency's "no
jeopardy" finding will decide whether
section 7(a)(2) has been satisfied and
whether section 7(d) no longer applies. If
it is later determined that the finding is
not valid, the Federal agency would be
taking the risk of noncompliance with
the Act.
Finally, one commenter asked that
this section be amended to require
Federal agencies to give written notice
to the Service verifying that neither it
nor any applicant involved has made
any irreversible or irretrievable
commitment of resources during
consultation. The Act does not provide
such authority, except arguably in the
exemption process. A mandatory
section 7(d) notice has not been adopted
in this final rule regarding consultation
procedures because section 7(d) is
strictly prohibitory in nature and not
consultative.
Subpart B—Consultation Procedures
There are five primary components
within the section 7 consultation
procedures—conference. «arly
consultation, biological assessment
informal consultation, and formal
consultation. Of these, only conference,
formal consultation, and biological
assessments may be required. Although
a Federal agency may elect to use
several of these procedures, they do not
represent a mandatory, sequential
process. As requested by one
commenter, the following is a brief
abstract of each component of the
consultation process.
If a Federal agency determines that its
action is likely to jeopardize the
continued existence of any proposed
species or result in the destruction or
adverse modification of proposed
critical habitat the Federal agency is
required to "confer" with the Service
under {402.10. The purpose of a
conference is to identify and resolve
potential conflicts between an action
and proposed species or critical habitat
The Service will make advisory
recommendations on ways to minimize
or avoid adverse effects, if the proposed
species or proposed critical habitat is
subsequently listed or designated,
respectively, then the Federal agency
must consider whether formal
consultation under (402.14 is required.
"Early consultation" is an optional
process that may be requested through
the Federal agency by a prospective
applicant to determine whether its
proposed action is likely to jeopardize
the continued existence of a listed
species or result in the destruction or
adverse modification of critical habitat.
Early consultation occurs prior to a
formal application for a Federal permit
or license. Such early consultation is
conducted between the Service and the
Federal agency in cooperation with the
prospective applicant. At the request of
the prospective applicant, early
consultation is initiated by the Federal
agency responsible for issuing the
permit or license and is generally
conducted and concluded in the manner
prescribed for "formal consultation." If
the action is a "major construction
activity." the biological assessment
requirement of { 402.12 must be satisfied
before early cons'ultation is initiated.
After concluding early consultation, the
Service will deliver its preliminary
biological opinion to the Federal agency
and the prospective applicant.
After formal application is made for
the permit or license but before its
issuance, the Federal agency should
submit to the Service a written request
that the preliminary biological opinion
be confirmed as a final biological
opinion under section 7(a)(2). If the
Service determines that no significant
changes have occurred in either the
proposed action or the information
available since early consultation, no
new impacts are anticipated, and no
new spedes have been listed or critical
habitat designated since early
consultation, it will confirm that the
preliminary biological opinion remains
accurate and shall be treated as a final
biological opinion issued under section
7(b) of the Act Consultation will
terminate in accordance with (402.14(/).
However, if the Service is unable to
confirm the preliminary biological
opinion due to any of the reasons
outlined in 8402.11, formal consultation
on that action must be initiated under
8402.14.
"Biological assessment" requirements
apply to all major construction activities
as defined in these regulations. Even if
not required. Federal agencies may
voluntarily prepare a biological
assessment to assist them in fulfilling
their section 7 responsibilities. Also, any
person who wishes to apply for an
exemption may voluntarily prepare such
an assessment in cooperation with the
Service and under the supervision of the
appropriate Federal agency.
A biological assessment contains
information concerning listed or
proposed species or designated or
proposed critical habitat that may be
present in the action area and an
evaluation of any potential effects of the
action on such species and habitat. A
biological assessment should be used in
determining whether formal
consultation or a conference is required.
-------
Federal Register / Vol. 51. No. 106 / Tuesday. June 3. 1986 / Rules and Regulations
19941
"Informal consultation" includes all
the contacts (discussions,
correspondence, etc.) between the
Federal agency or its designated non-
Federal representative and the Service
that take place prior to the initiation of
any necessary formal consultation.
Informal consultation may be used by
the Federal agency in determining
whether formal consultation under
§402.14 or a conference under $402.10 is
required.
"Formal consultation" is required
under section 7(a)(2) of the Act. A
Federal agency must initiate formal
consultation if it determines that its
action "may affect" any listed species or
its critical habitat unless it determines
through informal consultation or
biological assessment procedures, with
the written concurrence of the Service,
that its action "is not likely to adversely
affect" such species or habitat. If the
action is a "major construction activity,"
the biological assessment requirement
must be satisfied before formal
consultation may begin. Formal
consultation is concluded within 90 days
or extended in accordance with the
provisions of {402.14. Within 45 days
after concluding formal consultation, the
Service will deliver its biological
opinion stating whether or not the action
is likely to jeopardize the continued
existence of listed species or result in
the destruction or adverse modification
of critical habitat If formal consultation
fesults in a "jeopardy" biological
opinion, reasonable and prudent
alternatives, if any, will be included in
the opinion.
These procedures are discussed more
fully below, together with the sections
governing post-consultation
responsibilities of Federal agencies and
the factors that require reinitiation of
formal consultation. Specific public
comments are treated on a section-by-
section basis.
Section 402.10 Conference on Proposed
Species or Proposed Critical Habitat
The 1970 Amendments added the
requirement in section 7(a)(4) that
Federal agencies confer with the Service
on any Federal action that is likely to
jeopardize the continued existence of
any proposed species or result in the
destruction or adverse modification of
proposed critical habitat. The purpose of
this requirement is to identify and
resolve potential conflicts between an
action and proposed species or
proposed critical habitat at an early
point in the decisionmaking process.
Conferences will be conducted on an
informal basis between the Federal
agency and the Service. The Service will
make recommendations, if any, to
minimize or avoid adverse effects of the
action on proposed species or proposed
critical habitat. These recommendations
are advisory in nature, because the
"jeopardy" prohibition of section 7(a)(2)
does not apply until the species is listed
or the critical habitat is designated.
However, the Federal agency and any
applicant should give serious
consideration to implementing the
recommendations since, if the species is
later listed or critical habitat designated,
the Federal agency must review its
action, regardless of its stage of
completion, to determine whether
consultation is required.' In certain
instances the Federal agency and the
Service may conduct the conference in
such a thorough manner that it would
satisfy the consultation requirements of
section 7(a)(2) if the proposed listing or
designation is subsequently completed.
The conference procedures are not
repetitive of work performed in the
preparation of a biological assessment,
as suggested by three commenters. First,
the conference requirement applies to
all Federal actions, while the biological
assessment requirement only applies to
actions that are "major construction
activities." Second, the conference
requirement applies to proposed species
and proposed critical habitat, whereas
biological assessments are required only
when listed species or critical habitat
may be present in the action area
(although proposed species or proposed
critical habitat should be covered in the
assessment if they also may be present
in the action area). Thus, the conference
process fills the need to alert Federal
agencies of possible steps that the
agency might take at an early stage to
adjust their actions to avoid
jeopardizing a proposed species. The
Service strongly encourages the
implementation of the recommendations
so the action would not violate section
7(a)(2) if the spedes is listed or the
critical habitat designated.
After reviewing a biological
assessment or other available
information, the Service may determine
that a conference is required for the
proposed species or proposed critical
habitat A sentence has been added to
the new paragraph (b) of {402.10
[proposed 8402.13(a)) to point out the
Service's responsibility to request a
Federal agency to confer after a review
of available Information. The last
sentence of the proposed paragraph (a)
has been deleted since the new S402.08
clearly defines the role of the designated
non-Federal representative. The Service
declines to take the position that it can
"require" the initiation of a conference,
because the Federal agency bears the
ultimate responsibility to assess the
likelihood of jeopardy to proposed
species by its actions. However, the
Service will vigilantly review biological
assessments and other available
information and fulfill its duty to make
Federal agencies aware of their
responsibilities under the Act.
The Service emphasizes the need for
Federal agencies to confer because such
efforts may not only minimize or avoid
injury to proposed species but might
also prevent the halting of an action if
theepedes is subsequently listed:
Obviously, Federal agencies Irreversibly
committing resource* and foreclosing
alternatives to an action that is likely to
jeopardize a proposed species do so with the
risk that the species will eventually be
formally listed and the prohibitions of section
7 will become applicable. The conferees do
not believe that any Federal agency or
permittee should make any irreversible or
Irretrievable commitments of resources for
the purpose or with the intent of foreclosing
otherwise reasonable alternatives or in order
to secore an exemption pursuant to section
7(h).
HJL Conf. Rep. No. 897,96th Cong.. 1st
Sess. 13 (1979).
There is no requirement that Federal
agencies confer with the Service on
species that are candidates for listing
proposals. However, for the reasons
identified by Congress in the Conference
Report to the 1979 Amendments on
proposed spedes, the Service
encourages Federal agencies to confer
informally on candidate spedes when
deemed appropriate to avoid jeopardy
and to avoid potential economic loss
through project modification if the
species is later listed.
Several specific changes were
recommended for proposed paragraph
(a) [paragraphs (a) And (b) in the final
rule]. One commanter felt that the
reference to "potential endangered
spedes conflicts" was too restrictive.
The Service agrees that the proposed
rule might have been construed so as to
exdude threatened spedes. Therefore,
the sentence has been adjusted to refer
to all potential conflicts.
One commenter urged the Service to
change the standard for initiating a
section 7(a)(4) conference from "likely to
jeopardize" to "would adversely affect."
The regulation tracks the statute. The
Service lacks the authority to make the
requested change.
Several commenters urged the Service
to make provisions for applicant
involvement in the conference process.
The Service agrees, and has added
language in paragraphs (a), (c). and (e)
of {402.10 to ensure that applicants have
an opportunity to participate in the
-------
19M2
Federal Roaster / Vol. 51, No. 106 / Tuesday. June 3. 1986 / Rules and Regulations
conference, and that they receive a copy
of the conclusions documented by the
Service.
Another commenter asked that time
limits be established for the conference
process. The Service declines to
establish time limits for the conference
requirement. The timing of the section
7(a](4) process is. in part, dictated by the
progress of the proposed rulemaking to
list a species or to designate critical
habitat. Regardless of any time limits
that the Service could establish, the
conference requirement expires and
consultation is required if the listing or
critical habitat designation becomes
finaL The Service finds no reason to
impose rigid time frames for
conferences.
Paragraph (c) defines the nature and
content of the conference. Basically,»
"conference" involves informal
discussions on the identification and
possible avoidance or minimization of
potential adverse effects to proposed
species or proposed critical habitat from
a Federal action. The reference to
"informal discussions" should not be
confused with "informal consultation."
which is a distinct but optional,
component of consultation.
The Service declines to modify
paragraph (c) by changing "advisory"
recommendations to "conservation''
recommendations, as suggested. Such a
change may confuse conference with
formal consultation, the required
procedure in which discretionary
"conservation recommendations" may
be given. The Service also declines to
adopt suggested provisions that would
(1) require advisory recommendations to
be made in every conference, (2) force
the Service to notify the Federal agency
of the date on which a final decision will
be made on a listing proposal or (3)
require the Service to initiate emergency
rulemaking proceedings to list a specieo
or designate critical habitat if the
Federal action is likely to jeopardise the
species. Although required, conference
is an informal process that has no
substantive force. To foraa every
conference into a regimented structure
would be counterproductive and
contrary to the intent of the Act When
appropriate, the Service will make
advisory recommendations on ways to
avoid or minimize adverse effects to
proposed species or proposed critical
habitat During the conference, the
Service will apprise the Federal agency
of the progress of the listing or critical
habitat proposal and will attempt to
notify the Federal agency when the
listing or critical habitat proposal
becomes final. Emergency rulemaking is
provided for under section 4(b)(7) of the
Act and will be used if appropriate
under the circumstances.
One commenter suggested that the
conference involve all of the steps of
formal consultation, but on an informal
basiB so that if the listing becomes final,
the conclusions and recommendations
derived from the conference could be
adopted as a final biological opinion. In
some cases, a thorough, well-prepared
conference might elucidate sufficient
conclusions and recommendations to
serve as the biological opinion, upon the
final listing of a species. While section
7(a)(4) does not require Federal agencies
to follow the section 7(a)(2) process for
proposed species or proposed critical
habitat or specifically provide for the
conversion of conference "conclusions
and recommendations" into a final
biological opinion [in contrast to explicit
authority under section 7(b)(3)(B) for the
conversion of preliminary biological
opinions into final biological opinions),
such • procedure is available to the
Federal agency and the Service in
appropriate instances.
If this information necessary to
conduct a formal consultation is
available at the conference stage, and If
a formal procedure is deemed
appropriate by both the Federal agency
and the Service, the conference may be
conducted through a procedure
equivalent to formal consultation; the
results, or opinion, derived from a
"formal" conference may be adopted as
the biological opinion when the
proposed listing or designation is
completed. It should be noted that the
conference conclusions and
recommendations would only be
adopted as the biological opinion in
those instances where no new data are
developed. innlmHwg that developed
during the rulemaking process on the
proposed listing or designation of
critical habitat and no changes to the
Federal action are made which would
altar the content of that opinion. By
providing procedures which allow for a
more extensive conference that may
later be adopted as the biological
opinion, the Service does not intend to
expand upon the requirements of section
7(a)(4). Rather, this procedure is an
option available to the Federal agency
and the Service to help avoid conflicts
and expedite consultation if the
proposed species or critical habitat is
listed or designated. Therefore, a new
paragraph (d) is added to this final rule
to acknowledge the availability of a
"formal" conference procedure.
Paragraph (e) of (402.10 discusses the
documentation of the results of the
conference. If the action involves only
proposed species or proposed critical
habitat, a copy of the recommendations
will be forwarded by the Service to the
Federal agency and any applicant. If an
action also involves formal consultation
on listed species or critical habitat, the
Service will provide the
recommendations on proposed species
or proposed critical habitat with the
biological opinion. As requested by
some commenters, the final rule has
been clarified to Btate that the
conclusions of a conference will be
provided with the biological opinion
rather than made an integral part of
("consolidated in") the opinion. The
Service does not intend that the
informal nature of the conference be
changed or that any of the requirements
of formal consultation under section 7
be Imposed on Federal agencies with
respect to proposed species or proposed
critical habitats unless the Federal
agency specifically requests a more
formal procedure. Early initiation of
these discussions increases the chances
of resolution of potential conflicts.
Section 402.11 Early Consultation.
The 1962 Amendments added a
provision to the consultation process
[section 7(a)(3)] designed to identify and
to minimize. esriy in the planning stage
of an action, potential conflicts between
the action and listed species. These
early consultation provisions authorize
the Service to consult with Federal
agencies at the request of and in
cooperation with prospective applicants
regarding the impact of proposed
actions on listed species or critical
habitat These provisions are
incorporated Into the final regulations in
{402.11 (9402.14 of the proposed rule).
The intent of this provision is to involve
the Service and State and local planning
and conservation entities in the planning
stages of actions. The Service believes
that early consultation will be helpful in
establishing a mechanism for early
resolution of potential conflicts.
Congress did not intend that this
provision be used to authorize
consultation for speculative or remote
actions but rather only on actions which
are likely to occur. The regulations
require prospective applicants to
provide sufficient information describing
the project its location, the scope of
activities associated with it and the
anticipated impacts to listed species to
enable the Federal agency and the
Service to conduct meaningful early
consultations.
The opportunity for an early
consultation should expedite the
permitting and other regulatory
processes associated with actions
requiring Federal authorizations.
-------
Federal Register / Vol. 51. No. 106 / Tuesday. )une 3, 1986 / Rules and Regulations
19943
Contrary to the interpretation of one
commenter, early consultation is not a
required process, but rather is an
optional step that a prospective
applicant can take to factor in section 7
considerations during the initial
planning stage. Although early
consultation contains most of the
features of formal consultation, the
Service declines to adopt the suggestion
to place the early consultation
provisions within the formal
consultation section as a "special case."
Early consultation, unlike formal, is not
required and occurs before any
application for a permit or license is
filed, whereas formal consultation is a
post-application process when
applicants are involved. These
differences are significant and merit the
separation of these distinct processes
into separate sections. However,
because of the extensive similarities in
the procedures for early and formal
consultation, the final rale has been
substantially modified in format to
reference appropriate paragraphs in
S402.14 (formal consultation) to avoid
repetition of these commom features.
Although this has greatly shortened the
early consultation section, the
requirements and procedures have not
been altered substantively.
One commenter was confused over
the parameters of early consultation and
informal consultation (9402.13). Informal
consultation is a post-application
process, as is formal consultation; early
consultation is a pre-application
process. There is no overlap. Designated
non-Federal representatives can carry
out informal consultation, and they can
also carry out the biological assessment
process if an assessment is required
during the early consultation. Although
only Federal agencies conduct early
consultation directly with the Service.
non-Federal representatives may
continue to play a role in the data-
gathering function of consultation.
Several commenters believed that
proposed {402.14 took away the
prospective applicant's right to request
early consultation and to make the
initial determination of possible impacts
to listed species or critical habitat. The
proposed rule preserved the prospective
applicant's right to request early
consultation but provided the Federal
agency with the responsibility for
determining impacts to listed species or
critical habitat. In response to
comments, the-final rule has been
rearranged to clarify the primary role of
the applicant in making the initial
determination and request to the
Federal agency. However, the
applicant's rights under section 7(a)(3) of
the Act are not unqualified, and the
ultimate burden is on the applicant to
meet certain threshold criteria.
Paragraph (a) of 8402.11 outlines the
purpose of early consultation and is
adopted substantially as proposed in
{402.14(b) and the first sentence of
{402.14(c). The legislative history is
clear that the prospective applicant must
be involved to the greatest extent
practicable in every aspect of the early
consultation process. H.R. Conf. Rep.
No. 835.97th Cong., 2d Sess. 28 (1982).
One commenter expressed concern that
it may not be possible to have the
applicant involved in every meeting and
telephone call between the Federal
agency and the Service. Therefore,
acknowledging the practical limitations
on involving the applicant in all
consultation contacts (but still
recognizing the need for continuous
communication with the applicant), the
second sentence of paragraph (a) now
reads that the prospective applicant
should be Involved "throughout"
(instead of "in every aspect of") the
consultation process.
Paragraph (b) of {402.11 sets out the
threshold conditions that must be
satisfied before early consultation can
be initiated and is derived from
proposed {402.14(c). As suggested by
one commenter, the prospective
applicant's request for early
consultation should be made In writing
to the Federal agency.
The "may adversely affect" threshold
for initiating early consultation has been
expanded to "may affect" This action
was taken because the more restrictive
standard unnecessarily limited access to
this early review procedure, especially
since at the early planning stage of an
action the exact nature of a possible
effect could be difficult to define.
Section 402.14(c) of the proposal
established that the Federal agency
ensure that the following conditions be
met prior to initiation of early
consultation:
(1) there must be a definitive proposal
outlining the action and its effect;
(2) it must be shown that the action is
technologically, administratively, and
legally feasible;
(3) it must be shown that the applicant
possesses adequate economic resources
to conduct the action; and
(4) it must be shown that the applicant
possesses some property interest in the
proposed site on which the action will
occur.
Numerous comments were received
on these criteria. Three commenters
urged the Service to strike all four
conditions because of their
unreasonableness and the Service's lack
of authority to impose them on
applicants. Other commenters criticized
conditions (2) and (3) due to their
ambiguity. Contending that enforcement
of these conditions would preclude early
consultation in many cases, the
commenters noted that the information
needed to meet these conditions is not
available at the time that early
consultation is most useful. The
commenters bIbo attacked condition (4),
regarding the need to show an
ownership interest in land, because
early consultation would normally occur
prior to the selection of an exact
location for the project. Two
commenters stated that conditions (1)
and (2) are adequate for screening
serious actions. One commenter
suggested that only two criteria be
addressed in determining eligibility for
early consultation: scope of the project
and possible effects on listed species.
The 8ervice was given explicit
authority in section 7(a)(3) of the Act to
issue guidelines that would prevent
speculative or undefined actions from
triggering early consultation.
The Committee expects that the Secretary
will exclude from such early consultation
those actions which are remote or speculative
in nature and to Include only those action*
which the applicant can demonstrate ore
Ukety to occur . . . .The Committee further
expects that the guideline* will require the
prospective applicant to provide sufficient
Information describing the project, its
location, and the scope of activities
associated with it to enable the Secretary to
carry out a meaningful consultation.
HJL Rep. No. 387,97th Cong., 2d Sess.
25 (1982).
The final rule retains proposed
condition (1) that requires the nature
and effect of a prospective action to be
defined. Without adequate information,
early consultation would be
meaningless. Proposed condition (2) has
been modified in the final rule to require
that the prospective applicant certify
that it intends to implement its proposal,
if authorized. This will prevent highly
speculative actions from entering early
consultation. The Service believes that
these two conditions are reasonable and
will allow Federal agencies and the
Service to focus their attention on
concrete, feasible actions through
meaningful, early consultations.
Proposed conditions (3) and (4)
described above have been deleted. The
Service agrees that these conditions
went beyond the normal pre-applicaiion
information-gathering practices of
Federal agencies and that they might
have discouraged early consultations
unnecessarily.
-------
19944
Federal Register / Vol. 51. No. 106 / Tuesday, June 3. 1988 / Rules and Regulations
Paragraph (c) of $402.11 is adopted
from proposed {402.14(a) and the
introductory paragraph of proposed
{402.14(d). This paragraph governs
initiation of early consultation by the
Federal agency if the prospective
applicant complies with paragraph (b).
Paragraph (d) of $402.11 governs the
procedures for conducting early
consultation. To eliminate unnecessary
regulatory language, this paragraph
cross-references the items in {402.14(c)-
(j). since the general consultation
requirements are the same as for formal
consultation. The proposed rule
repeated these requirements in {402.14
(d) through (i).
One commenter argued that the
Service exceeded its authority in
proposed paragraph (d)(3) by telling
Federal agencies how to meet their
responsibilities by requiring Federal
agencies to involve the applicant in the
data-gathering function. Although this is
not included in the final rule, the Federal
agency has an underlying responsibility
to involve the applicant in every aspect
of the early consultation to the extent
possible. Moreover, the applicant may
be the primary source of data used in
the consultation.
If the action is a major construction
activity, then a biological assessment
must be prepared in accordance with
{402.12 before the request for early
consultation is submitted, as is required
for formal consultation. This is a change
from proposed {402.12(b)(10). which
made the biological assessment optional
during early consultation. The Service
agrees with the comment that for major
construction activities, a meaningful
early consultation must include the
preparation of a biological assessment
because the preliminary biological
opinion issued after early consultation
may be confirmed as the final biological
opinion. Therefore, if early consultation
is requested for a major construction
activity, the Federal agency must
complete a biological assessment under
{402.12 prior to submitting its request
for eprly consultation.
The time limits and extension
provisions for formal consultation are
incorporated by reference as the
requirements for early consultation.
Several commenters felt that the
"mutually agreed upon" language of the
proposal ({402.14(e)] was too loose and
that definitive time limits were needed.
The Service agrees and has adopted the
time limits for formal consultation to
apply to early consultation as well. The
Service notes that, for major
construction activities, the time period
will not begin to run until the biological
assessment under {402.12 is completed.
Because time deadlines have been
adopted, there is no need to require a
written notice that consultation has
been concluded, as requested by one
commenter.
Proposed {402.14(i) concerned
requests by the Service for additional
data, and did not require the addition of
a written notice procedure for obtaining
an extension. This is now required, as
requested by one commenter, by
incorporating the formal consultation
requirements.
Proposed {402.14(f) recognized that
the Service's responsibilities during
early consultation are the same as those
that exist during formal consultation.
The final rule retains this provision by
reference. The Service is opposed to
limiting the scope of its analysis of
impacts during early consultation, and it
is also opposed to limiting the free flow
of communication among it the Federal
agency, and the applicant Therefore,
the comment suggesting that draft
preliminary biological opinions not be
released to the Federal agency or the
prospective applicant is rejected. This is
not an issue that can be dealt with on an
ad hoc basis, depending on the program
experience with particular agencies or
regions. The policy behind early
consultation is clear full involvement of
all parties, including the prospective
applicant to identify and eliminate
conflicts at the earliest possible stage of
a project
Paragraph (e) of {402.11 provides that
the contents and conclusions of a
preliminary biological opinion are the
same as for a biological opinion issued
after formal consultation in (402.14(1).
One commenter stated that biological
opinions need only be issued after
formal consultation under section 7(a)(2)
of the Act and that this should be
clarified In the rule. The Service
disagrees because a "written statement"
containing the Secretary's opinion is
required to be given after the conclusion
of both early and formal consultation.
However, there is an important
difference in these two types of
opinions: the former has no
independent, operative significance,
while the latter states the Service's
"final" judgment on the impacts of an
action. The preliminary biological
opinion, issued after the conclusion of
early consultation, has no operative
force until it is later confirmed by the
Service under section 7(b)(3)(B) of the
Act just before the action is to be taken.
One commenter said that it is
inappropriate to include an incidental
take statement with a preliminary
biological opinion. The Service believes
that input on incidental take is essential
to adequately assist the applicant in
planning its action. It would be unfair to
force the applicant to wait until the time
for confirmation of the preliminary
biological opinion to receive its first
notice on the terms and conditions that
must be complied with and the amount
and extent of permissible incidental
take. No harm results to the species by
providing this statement in the
preliminary biological opinion because,
as stated in the rule, it does not
constitute a permit to take. The "taking"
exemption under section 7(o)(2) does not
occur until the preliminary biological
'opinion is later confirmed as a final
opinion under {402.11(f).
Paragraph (f) of {402.11 is adopted
from proposed {{ 402.15(b) and
402.18(a). This paragraph acknowledges
that if certain findings are made by the
Service, a preliminary biological opinion
may.be confirmed as a final biological
opinion after formal application for a
Federal license or permit is made. The
rule requires the Service to make its
decision on confirmation within 45 days
after receipt of the Federal agency's
request As requested by one
commenter, both the request and the
Service's response must be in writing.
Section 40Z12 Biological Assessment
This section explains the biological
assessment requirements under section
7(c) of the Act and the process that must
be followed in its preparation. The
requirement that biological assessments
be prepared in advance of certain
consultations under section 7(a)(2) was
added by the 1978 Amendments.
Although the Service has, as a matter of
agency practice, been requiring the
preparation of biological assessments in
appropriate cases under the authority of
section 7(c), this final rule consolidates
all regulatory requirements pertaining to
biological assessments.
The proposed rule addressed the
biological assessment provisions in
{{402.01(c) and 402.12(b). In response to
public comments, the Service has
merged these sections in the final rule
into { 402.12. The new format clarifies
the requirements and procedures for
preparing biological assessments.
Although the organization of these
provisions has been changed
substantially, the substance of the
regulation is. except for minor
amendments, the same as that presented
in the proposed rule.
The informal consultation and
biological assessment processes were
both presented in {402.12 of the
proposed rule. This confused several
commenters who believed that
biological assessments could only be
performed in conjunction with informal
consultations. To eliminate this
-------
Federal Register / Vol. 51, No. 106 / Tuesday, June 3. 1986 / Rules and Regulations 19945
confusion, the biological assessment
provisions are placed in a separate
Bection, immediately before informal
consultation. Although a Federal agency
may prepare a biological assessment
while involved in informal consultation
with the Service, there is no requirement
that it do so.
References to conference, early
consultation, and formal consultation in
proposed 840212 (b)(7) (third through
fifth sentences) and (b)(10) have been
deleted because cross-references to the
biological assessment requirement have
been inserted in ({402.10,402.11, and
402.14 to explain the interrelationship of
these processes.
The purpose of a "biological
assessment" as stated in (402.12(a). is
to evaluate the potential effects of the
action on listed or proposed species or
designated or proposed critical habitat
and determine whether any such spedes
and habitat are likely to be adversely
affected by the action. Biological
assessments are designed to assist
Federal agencies in "determining
whether section 7(a)(2) consultation
should be initiated by identifying
endangered or threatened species that
may be present in the area affected by
their proposed project and by
identifying the impacts of those projects
on such species." HJL Rep. No. 697,96th
Cong.. 1st Sess. 14 (1979). Such
assessments are designed to promote
the "early discovery of and elucidation"
of potential endangered and threatened
species conflicts with proposed agency
actions. These reviews should take
place well before the agency exercises
its discretion to authorize, hind, or cany
out an action. RR. Rep. No. 1625,98th
Cong., 2d Sess. 20 (1976).
One commenter asked that a
reference be inserted for preparation of
"preliminary biological assessments."
The Service does not require advance
review of draft biological assessments;
the requested procedure would add to
statutory requirements. Therefore, the
addition has not been made.
Section 402.12(b)(1) ef die final rule
acknowledges that the Act exempts
from the biological assessment
requirement those actions for which
contracts were let or construction was
started on or before the effective date of
the 1978 Amendments. One commenter
argued that the assessment requirement
must not be retroactive, but should
apply only to current actions as of the
issuance of the final rule. The Service
must follow the Act on this point and-
adopt the rule as proposed. This will not
operate to the disadvantage of any
Federal agency Involved in a section 7
consultation, because the Service has
been requiring the preparation of
biological assessments since the
effective date of the 1978 Amendments.
Section 402.12(b)(1) also recognizes
that virtually any Federal agency, State
or local agency, private organization, or
individual (potential exemption
applicants) may voluntarily prepare a
biological assessment consistent with
the procedures set forth in this section
to assist it in fulfilling its section 7
responsibilities. One commenter urged
the Service to delete the sentence
referring to voluntary preparation of
assessments in proposed (402.12(b)(1)
because consultation is terminated if a
biological assessment is not required.
The commenter's statement is only true
for an action If no listed species or
critical habitat are present in the
proposed action area. The placement of
that sentence in the proposed rule was
confusing, and thus the final rule has
been clarified. The Service would like to
make it clear, however, that whether a
biological assessment is required or
voluntary bears no relation to whether a
conference or formal consultation is
required under (( 402.10 or 402.14,
respectively. The assessment is a tool
used to Identify Impacts to species or
habitat so that a decision can be made
as to whether a proposed action is likely
to adversely affect listed species or
critical habitat The biological
assessment can be used to determine
whether a conference or formal
consultation is required.
The Act provides that any person who
may wish to apply for an exemption
from the requirements of section 7(a)(2)
may voluntarily conduct such an
assessment in cooperation with the
Service and under the supervision of the
appropriate Federal agency. These
potential exemption applicants must
follow the procedures described in
(402.12. Under section 7(h)(2), an
exemption is not permanent unless a
biological assessment has been
prepared. A permanent exemption
remains in force for a particular Federal
action regardless of the listing of
additional species in the action area,
whereas an ordinary exemption is
limited to the species involved in the
section 7 consultation. Paragraph (b)(1)
acknowledges these statutory
provisions.
Therefore, the Service retains the
flexibility inherent in paragraph (b)(1)
that allows for the preparation of
biological assessments in those
instances where they are not
specifically required by this rule.
Although requested by another
commenter, the Service declines to set
guidelines for the exercise of discretion
by other Federal agencies or applicants
on the decision to voluntarily prepare
assessments.
Paragraph (b)(2) has been added in
response to public comments. The
limitation in section 7(c)(1) of the Act on
entering contracts or starting
construction on an action while the
preparation of a biological assessment is
pending has been included in these
regulations. This construction restriction
applies to all actions involving the
preparation of a biological assessment.
TTie fact that a biological assessment
Is not required for all actions does not
mean that listed or proposed species or
designated or proposed critical habitat
receive less protection. Federal agencies
still have an obligation to review all of
their actions to determine whether
formal consultation under $402.14 is
required. In addition. Federal agencies
must confer on actions that are likely to
jeopardize the continued existence of
proposed spedes or result in the
destruction or adverse modification of
proposed critical habitat
One commenter asked that Federal
agendes be.required to document any
finding of "no effect" on listed spedes or
critical habitat for actions not involving
the preparation of a biological
assessment The Service has no
authority to impose such a requirement
but does encourage Federal agendes to
use their NEPA documentation to
illustrate their analysis of Endangered
Spedes Act issues.
The Service reserves the right to
request that an agency prepare a
biological assessment One commenter
questioned the right of the Service to
request assessments when such are not
otherwise required by the Act Another
commenter feared that the Service
would routinely request field studies
with many of the characteristics of
biological assessments, regardless of the
action's potential effects, the
acceptability of a general field
reconnaissance, or the obligation of the
Service to provide guidance and data.
The Service's request for a biological
assessment or for field studies is not of
mandatory effect a Federal agency may
reject any audi request The Service
recognizes that consultation involves a
two-way flow of information. It will
always strive to provide data that are
available and to assist in designing or in
conducting studies (within budgetary
constraints and available staffing) or in
gathering data through consultation.
Paragraph (c) of (402.12 covers the
request by a Federal agency for a
species list from the Service. This
paragraph was adopted from
(402.12(b)(1) (first sentence) of the
proposed rule. Paragraph (d) of §402.12
-------
19946
Federal Register / Vol. 51. No. 106 / Tuesday, ]une 3. 1966 / Rules and Regulations
involves the Director's issuance of a
species list. This paragraph was adopted
from S 402.12(b)(2) of the proposed rule.
The biological assessment process
begins when a Federal agency decides
that its action is a major construction
activity, as discussed in these
regulations, or it decides that it will
voluntarily prepare a biological
assessment The Federal agency or the
designated non-Federal representative
requests information on whether listed
or proposed species or designated or
proposed critical habitat may be present
in the action area. Within 30 days of
receipt of that inquiry, the Director will
respond with a list of any such species
and critical habitat that may be present,
as well as the available data (or
references thereto). This may include
recommendations for studies or surveys
that may assist in the preparation of the
biological assessment
Contrary to the contentions of several
commenters, the request for a species
list is mandatory under section 7(c) for
any major construction activity, unless
the Federal agency forwards its own list
for the Director's concurrence as
explained below. This is not a
burdensome requirement, even for
apparent "no effect" actions, since the
entire process, including the Director's
response that no listed species or
critical habitat occurs in the action area,
may be carried out without delay
through the NEPA process.
In response to comments, the final
regulations explicitly allow the Federal
agency or the designated non-Federal
representative to proceed with the
preparation of the biological assessment
prior to receiving a species list from the
Service. In this situation, the Federal
agency or the designated non-Federal
representative is required to notify the
Director in writing as to the species and
critical habitat that are being included
in the assessment As recommended by
three commenters. the Service will
respond to this notification in writing
within 30 days as to whether It concurs
with the species and critical habitat to
be covered in the biological assessment
One commenter suggested that an
applicant should have an opportunity to
informally request a species list to assist
it during the planning stage of a project
Then, if the applicant begins preparation
of a biological assessment within 90
days of receipt of this "informal" list
the commenter thought that the Service
should not amend the list at a later time.
The commenter appears'to be
advocating an opportunity for early
consultation, which is provided for
under $402.11 of this final rule.
Nevertheless, the request that a
species list not be modified once issued -
might backfire on the applicant because
$402.14 requires consultation on all
listed species and critical habitat that
may be affected by a Federal action.
Even if a species is inadvertently
omitted from the species list and
biological assessment the Act
nevertheless requires that it must be
considered in satisfying the
requirements of section 7(a)(2). Thus, the
sooner the Service notifies the applicant
of additional species to be included in a
required biological assessment the
sooner the consultation will be
completed.
In addition to listed or proposed
species or designated or proposed
critical habitat the Service will include
candidate species in the species list
Candidate species are those species
being considered for listing but not yet
the subject of a proposed rule. This will
inform the Federal agency and any
applicant of potential proposals for
listing. Candidate species have no legal
status and are accorded no legal
protection under the Act and thus the
Federal agency need not include them in
a biological assessment However,
should a candidate species become
proposed or listed prior to completion of
the action, a conference or formal
consultation may be required.
Several commenters asked that
species lists be "site-specific" and not
regional in scope. One of these
commentera urged die Service to include
only species actually known or believed
to occur in the action area. The Service
agrees that the species list should be
tailored to the action area and that field
personnel should take care that the list
is not overinelusive. However, the Act
requires the Service to provide a list of
all listed or proposed species that "may
be present" in the action area. Thus,
migratory species that "may be present"
at some point within the action area
must be included in the species list
Another commenter said that the
Service should include only species in
the list that it believes may be affected
by the action. This approach is not
consistent with section 7(c), which
requires a disclosure of all species that
"may be present" in the action area. The
comment would also eliminate the
Federal agency's right to make an initial
evaluation of possible effects to each
species.
One commenter's conclusion that a
determination of no adverse effect after
receipt of the species list but before
preparation of the assessment
eliminates the need to prepare the
assessment and concludes consultation
is erroneous. The biological assessment
is used to determine whether an activity
"is likely to adversely affect" listed
species or critical habitat. Consultation
does not conclude unless the Service
concurs in writing with the finding of the
biological assessment indicating that the
action is not likely to adversely affect
listed species or critical habitat.
The Service has clarified paragraph
(d)(1) to accommodate the concern of
the House Committee that biological
assessments not be required on major
construction activities affecting
proposed species or proposed critical
habitat only. However, if a species list
includes both listed and proposed
species, each must be considered in the
biological assessment as required by
section 7(c) of the Act
Concerned that the Federal agency
should receive all information during the
assessment process, one commenter
asked that the species list be delivered
to both the Federal agency and its
designated non-Federal representative
due to the agency's responsibility to
supervise the preparation of the
assessment The Service declines to
include this requirement in the rule, but
will forward a copy to the Federal
agency, if requested. It is the Federal
agency's responsibility to decide
whether it wants to designate a non-
Federal representative, and if one is
designated the species list will be sent
to the representative as requested by the
Federal agency.
Several commenters suggested that
the Service's ability to recommend
"necessary" studies or surveys would
contravene the "best available scientific
and commercial data" standard of
section 7(a)(2). The Service agrees that
the proposed language may have
implied that additional studies or
surveys were required or necessary to
complete the assessment Therefore, the
sentence is changed to state that the
Service may recommend studies or
surveys that it believes would assist in
the preparation of the assessment A
new sentence is also added to clarify
that such a recommendation is not to be
construed as the Service's opinion that
the Federal agency has failed to satisfy
the Information standard of section
7(a)(2) of the Act This change preserves
the Service's prerogative to request
further studies if deemed appropriate,
while recognizing the ultimate
responsibility of the Federal agency to
secure the best available data. Two
commenters suggested that the request
for studies be limited to studies
necessary to locate and assemble
already existing data. The Service
declines to so limit the scope of studies
it may request
Paragraph (e) of $402.12 is carried
over from $402.12(b)(3) of the proposal.
-------
Federal Register / Vol 51. No. 106 / Tuesday. June 3,1986 / Rules and Regulations
1994:
It requires a party preparing a biological
assessment to verify its species list with
the Service if. after 90 days from the
receipt of or concurrence with the
species list, it has yet to commence the
preparation of the assessment A written
verification, as suggested by one
commenter. is not required since that
would be tantamount to issuing a
second species list contrary to the
informal nature of this verification step.
The Federal agency may, on its own.
document the verification received
under this paragraph In its
administrative record. As requested by
one commenter. the Service has
distinguished the initiation of the
biological assessment time period (time
of receipt of or concurrence with a
species list) from the point at which
actual preparation of the assessment is
begun.
Based on comments received, a new
paragraph (f) entitled "contents" has
been added. Some commentera argued
that Federal agencies should be required
to include certain minimum research
methods or activities in the preparation.
of a biological assessment One
commenter suggested that preparers of
biological assessments should:
(a) conduct a adentiflcaliy aound on-site
inspection of the am affected toy the action,
which must. onieM otherwise directed by the
Service, include a detailed survey of the area
to determine if listed or proposed species ere
present or occur seasonally and whether
suitable habitst exists within the area for
either expanding the existing population or
potential re introduction of populations;
(b| interview recognised experts on the
species at Issue, including those within the
Fish and Wildlife Service, the National
Marine Fisheries Service, State conservation
agencies, universities and often who may
have data not yet found in scientific
literature;
(c) review literature and other scientific
data including recovery plans if svailable to
determine the species' distribution, hsbltat
needs, and other biological requirements;
(d) review and analyse the effects of thr
action on the species. In tarns of individuals
and population*, inrituMnj consideration of
the Indirect and cumulative effects of the
action on the species snd habitat
(e) analyze alternate actions that may
provide conservation measurer, and
(f) conduct any studies neoeseary to fulfill
the requirements oi (a) through (e) above.
The Service agrees that assessments
should be as complete and thorough as
possible, but declines to Impose strict
minimum standards that all biological
assessments must satisfy. The above-
listed activities, which may be
performed in preparing an assessment
are endorsed by the Service as items
that a model assessment would include.
However, ihe nature of the Federal
action may not warrant carrying out all
of these research activities or studies,
and some of the steps may not be
technologically feasible in certain cases.
Therefore, the new paragraph (f) only
contains suggestions of what a Federal
agency may include in a biological
assessment
One commenter asked the Service to
explain the difference between the
degree of information needed in a
biological assessment and the degree of
information needed to initiate formal
consultation when the action does not
require the preparation of an
assessment In both caaes the overall
information standard is the same: "best
scientific and commercial data
available." The difference arises in the
process. If a biological assessment is
prepared, it must include not only the
data but also a synthesis of the data
involving an analysis of the effects of
the action. Basically, the assessment
serves as an analytical instrument and
can be used by the Federal agency "to
build its case" as to whether a particular
action is likely to adversely affect a
listed species or ita critical habitat If the
Service concurs with a determination of
"not likely to adversely affect" then
formal consultation la not required. If an
assessment is not required, tfaa Federal
agency need only submit data to the
Service to initiate formal consultation
pursuant to % 402.14(c).
Paragraph (g) of {402.12. which deals
with the authority to incorporate earlier
biological assessments by reference aa
the assessment for a current proposal is
adopted from the last two sentences of
proposed 1402.12(b)(1). in those
instances where a proposed Federal
action is identical, or very similar, to a
previous action for which a biological
assessment was prepared, the Federal
agency may not need to prepare a new
biological assessment
One commenter requested that
language be added to clarify that a
previous biological assessment being
incorporated by reference could have
been part of a prior EIS or area-wide
assessment The Service declines to
make the change noting that the form of
the previous biological assessment
(whether in an EIS or other document)
has no bearing on whether It meets die
conditions for incorporation by
reference.
In response to comments, the
conditions that must be met for
incorporation by reference are clarified.
The biological assessment requirement
may be fulfilled by incorporating by
reference the earlier biological
assessment and supporting data into a
written certification that: (1] the
proposed action involves similar
impacts to the same species in the same
geographic area; (2) no new species
have been listed or proposed or critical
habitat designated or proposed for the
action area; and (3) the biological
assessment has been supplemented with
any relevant changes in information.
Condition (1) has been expanded to
allow incorporation by reference if the
proposed action involves similar
impacts (rather than no new impacts).
The term "or administrative unit" has
been deleted as it is substantially the
Bame as "geographic area." The Service
adds "for the action area" at the end of
condition (2) to clarify the scope of the
certification. Finally, condition (3) is
changed t« allow Federal agencies to
incorporate a former biological
assessment by reference while
supplementing it with any relevant
changes in information. This change
clarifies the intent behind this
paragraph.
Paragraph (h) of 1402.12, which cross-
references permit requirements under
the Act that may apply to the
preparation of a biological assessment
is adopted as proposed in
i402-t2fb)(4)(i). The Service believes
that the references in the rule are
adequate to alert Federal agencies and/
or designated non-Federal
representatives of the need to consider
applicable permit requirements, rather
than include the appropriate section 10
permit requirements in these
regulations, as suggested by one
commenter. Certain field work might
involve tha take (/.a., harassment harm,
etc.) of listed spades which, absent a
permit would violate sections 9 or 4(d)
of the Act To avoid possible violations,
the Federal agency or non-Federal
representative should apply for and
obtain a section 10 permit for such field
work. Those Individuals carrying out
field studies or other research without a
permit during the section 7 consultation
process are subject to the prohibitions of
the Act and other applicable wildlife
laws. The Service emphasizes that
permits should be obtained if takings of
any listed species are anticipated
Paragraph (i) of {402.12 specifies the
time period for completing a biological
assessment and sets out the
requirements for any needed extension.
This paragraph is taken substantially
from {402.12(b)(0) of the proposed rule.
Two commentera aaked that the rule
require written notices of all extensions,
regardless of whether an applicant is
involved. A written notice from the
Federal agency to the applicant is
required if an extension is agreed upon
between the Service and the Federal
agency, and such written notice must be
provided by Ihe Federal agency prior to
-------
19948
Federa^Regj8te^Mi|oIJ5lJNo^0^^uesday^luji^^98fl^^ule^n^Regulation8
¦
the expiration of the 180-day time
period. However, the Service declines to
require a written notice if an applicant is
not involved in the consultation,
because responsibility for the
preparation and completion of the
biological assessment rests with the
Federal agency. The Service will defer
to the needs and judgment of the
Federal agency which can document the
extension in its administrative record.
Another commenter asked that the
Service explain that the 180-day time
period begins on the date of receipt of
the species list (or the date of receipt of
the Director's concurrence with the
Federal agency species list). This change
has been made since it clarifies when
the time period begins and is consistent
with the intent of this paragraph.
As noted above, if an applicant is
involved, the 180-day period may not be
extended unless the agency provides the
applicant, before the dose of the 180-
day period with a written statement
setting forth the estimated length of the
proposed extension and the reasons
why an extension is necessary. The
applicant has no remedy to expedite the
preparation of the biological assessment
under section 7(c) of the Act Thus, the
180-day time period is subject to an
indefinite extension at the Federal
agency's prerogative. The Service lacks
statutory authority to impose an appeal
process to review extensions, as
requested by two commenters.
Paragraph (j) of {402.12. which
requires the submission of completed
biological assessments to the Director
for review, is adopted from proposed
{402.12(b)(4)(iii). In response to two
comments, the Director will make a
written response within 30 days after
receiving the complete assessment as to
whether or not the Service concurs with
the findings in the assessment This
change provides Federal agencies with a
written record acknowledging the
Service's receipt of the biological
assessment and indicating the results of
the Service's review.
A new sentence is added to this
paragraph to clarify that the Federal
agency may initiate formal consultation
concurrently with the submission of the
assessment to the Director.
In response to one comment the
Service declines to substitute "Service"
for "Director" in this paragraph. It is
important that the Director or his
authorized representative directly
receive the biological assessment for
review so that a timely review can be
facilitated.
Paragraph (k) of {402.12. governing
the use of a completed biological
assessment, is derived from
$ 402.12(b)(7) of the proposed rule. Once
the biological assessment has been
completed, the Federal agency must
consider whether formal consultation
should be initiated or if a conference is
necessary. Three commenters noted that
a written notice of concurrence should
be issued by the Director if the Service
agrees with the Federal agency's finding
that its action is not likely to adversely
affect listed species or critical habitat
{i.e.. the Service concurs in writing that
formal consultation is not needed). This
comment has been accommodated by
appropriate changes to paragraphs (J)
and (k).
The proposed {402.12(b)(5),
"Assistance from other sources," has
not been included In the biological
assessment section of the final rules.
The substance of this paragraph has
been included in the final {40248
dealing with designated non-Federal
representatives. The first two sentences
have been deleted since a Federal
agency may obtain assistance from any
source to aid in the preparation of a
biological assessment (or other aspect of
consultation), and it does not need to be
authorized in these regulations. One
commenter suggested that the Service be
included as a source of information;
however, assistance from the Service is
already included In appropriate sections
of the regulations.
Section 402.13 Informal Consultation.
Informal consultation is an optional
procedure that includes all contacts
between the Service and the Federal
agency or the designated non-Federal
representative prior to formal
consultation, if required. It is designed
primarily to except from the formal
consultation process those proposed
actions which, upon further informal
review, are found not likely to adversely
affect a listed species or critical habitat
If the Service concurs with such a
determination, formal consultation is not
required. The final rule Is adopted
largely by combining proposed
|{ 402.12(a). 402.15(c). and 402.15(i)(l).
into one composite statement of the
purpose and scope of informal
consultation.
Several commenters disagreed on the
scope of informal consultation. One
commenter felt that informal
consultation should include all dialogue
between the Service, the Federal
agency, and any designated non-Federal
representative in deterinining whether
formal consultation is required. Another
commenter recommended that Informal
consultation be available if listed
species are found in the action area. The
Service believes that informal
consultation encompasses all of these
communications between the Service.
the Federal agency, and the designated
non-Federal representative, as well as
others. The Service is available for
informal consultation at any time: the
decision on whether to seek informal
consultation is that of the Federal
agency. The Service agrees that if
requested as a part of informal
consultation, it should participate in
NEPA scoping meetings.
The Service declines to specify
uniform levels of contact that must be
followed in conducting informal
consultations. Existing relationships
between the Service's field or regional
offices and particular Federal agencies
mandate mnviwuim flexibility. The
present system is working well and
efficiently addresses the needs of other
Federal agencies, and it is therefore
retained.
Because informal consultation is an
optional process that is under the
control of the Federal agency as to its
initiation and duration, the Service
declines to require notices of initiation
and/or termination. Such a step would
merely place paperwork burdens on the
Federal agency in an otherwise
voluntary process.
As noted in {402.12. biological
assessments an required for major
construction activities. To clarify a
procedural point the Service notes that
the biological assessment process may
be conducted simultaneously with
informal consultation if desired by the
Federal agency, or the Federal agency
may choose to undertake the biological
assessment without any informal
consultation. Whether or not a
biological assessment is required, the
Federal agency may choose to enter into
informal consultation.
In response to many comments, the
Service has made numerous adjustments
throughout these regulations to
eliminate references to Informal
consultation as a prerequisite to formal
consultation. The Service agrees that
such a process would not be workable,
both as a result of limited consultation
resources and the need to respect
Federal agency program discretion. As
previously noted, the proposed rule
required formal consultation if the
action "may adversely affect" listed
species or critical habitat "Beneficial"
actions were excused from formal
consultation if the Service concurred
during the mandatory informal
consultation. Since informal
consultation has been made strictly an
optional process in this final rule, the
Service retains, from the 1978 rule, the
"may affect" trigger for formal
consultation in {402.14 of the final rule.
-------
Federal Register / Vol. 51. No. 106 / Tuesday, june 3. 1986 / Rules and Regulations
19949
Under this final rule, if a Federal
agency determines that its action "may
affect" listed species or critical habitat,
then formal consultation is required
unless an exception applies. One
exception is that a Federal agency may,
through informal consultation, utilize the
expertise of the Service to evaluate the
agency's assessment of potential effects
or to suggest modifications to the action
to avoid potential adverse effects. If, as
a result of informal consultation, the
Federal agency determines, and the
Service concurs, that the action (or
modified action) is "not likely to
adversely affect" listed species or
critical habitat then formal consultation
is not required. The consultation process
would terminate with the written
concurrence of the Service. Therefore,
through this informal consultation
process, those activities which are found
to have beneficial, discountable, or
insignificant effects upon listed species
or their critical habitats could be
deemed to be in compliance with section
7(a)(2) without formal consultation. If a
"not likely to adversely affect"
determination cannot be made during
informal consultation, then formal
consultation is required for those
Federal actions that "may affect" listed
spedes or their critical habitat
In short the final rule retains the
general requirement for formal
consultation if the Federal agency
determines that its action "may affect"
listed species or critical habitat The
Federal agency may, however, through
voluntary informal consultation with the
Service, forego formal consultation and
promptly implement actions that the
agency and the Service agree are not
likely to adversely affect listed spedes
or critical habitat The Service finds that
this reformulation of the consultation
process is not significantly different
from the current practice, except that as
a result of informal consultation,
biological opinions will no longer be
required for actions that "are not likely
to adversely affect" listed species or
critical habitat
The Service could not accommodate
all concerns expressed on this issue.
Two commenters contended that the
"may adversely affect" standard for
initiating formal consultation yielded
too much discretion to action agencies.
They stated that such a threshold would
shift the benefit of the doubt from one in
favor of the listed species to one in favor
of the Federal agency's action. Noting
the Service's expertise on wildlife
issues, the commenter urged the Service
to reverse this shift As noted above, the
Service did not intend to reverse the
burden of proof with the focus on
"adverse effects." The goal is to reduce
procedural barriers for actions which
the Service believes are not likely to
have an adverse effect, while retaining
full protection for listed species or
critical habitat. The changes noted
above address these commenters'
concern. However, other commenters
who suggested a shift in the burden of
proof cannot be accommodated. The
commenters that urged a "would
adversely affect" standard for triggering
formal consultation, a standard that
might be interpreted as requiring a
showing of effects that destroy or
adversely modify critical habitat or are
likely to Jeopardize the continued
existence of listed spedes. are
requesting a trigger for formal
consultation that the Service believes is
too dose to the "Jeopardy" standard of
section 7(a)(2). The threshold for formal
consultation must be set suffldently low
to allow Federal agendes to satisfy their
duty to "insure" under section 7(a)(2).
Therefore, the burden is on the Federal
agency to show the absence of likely,
adverse effects to listed spedes or
critical habitat as a result of its
proposed action in order to be excepted
from the formal consultation obligation.
The Service believes that informal
consultation is extremely important and
may resolve potential conflicts (advene
effects) and eliminate the need for
formal consultation. Through Informal
consultation, the Service can work with
the Federal agency and any applicant
and suggest modifications to the action
to reduce or eliminate adverse effects. If
a Federal agency modifies its action so
that the action is not likely to adversely
affect listed spedes or critical habitat
then formal consultation is not required.
Section 402.14 Formal Consultation.
These regulations require Federal
agendes to review their actions to
determine whether they "may affect"
listed spedes or critical habitat Formal
consultation procedures must be
initiated if such a situation exists,
unless, with the written concurrence of
the Service, the Federal agency
determines through informal
consultation and/or through the
biological assessment process that its
action is not likely to adversely affect
listed spedes or critical habitat As
noted above in regard to 1402.13, the
final rule adopts the "may affect"
standard of the 1978 rule, with a special
provision allowing actions "not likely to
adversely affert" to by-pass the formal
consultation process as a result of
informal consultation with the Service.
Paragraph (a) of S 402.14 sets out the
requirements for formal consultation.
This paragraph is a composite of
paragraphs (a) and (k) of proposed
§ 402.15. Paragraph (b). which sets out
the exceptions to the initiation
requirement of (a), was taken primarily
from proposed S{ 402.12(b)(7) and 402.15
(b) and (c).
The Service declines to substitute
"may" for "shall" in describing the
Federal agency's responsibilities in
paragraph (a), as requested by one
commenter. Federal agendes have an
obligation under section 7(a)(2) of the
Act to determine whether their actions
may affect listed spedes and whether
formal consultation is required under
these regulations. However, the Service
does not intend to mandate the timing of
this review, which is solely at the
discretion of the Federal agency. Early
review of its actions is to the advantage
of the Federal agency so that
compliance with section 7 can be
attained without undue delays to its
action.
Paragraph (a) also indudes a
provision for the Director to request a
Federal agency to enter into
consultation. Two commenters asked
that the final rule empower the Director
to require a Federal agency to consult
Although the Service will, when
appropriate, request consultation on
particular Federal actions, it lacks the
authority to require the initiation of
consultation. The determination of
possible effects is the Federal agency's
responsibility. The Federal agency has
the ultimate duty to ensure that its
actions are not likely to jeopardize listed
spedes or adversely modify critical
habitat The Federal agency makes the
final decision on whether consultation is
required, and it likewise bears the risk
of an erroneous decision.
The last sentence of proposed
S402.15(a), dealing with Service
assistance to Federal agendes, has been
deleted as It is more appropriately
addressed in the preamble. The Federal
agency may obtain information and
advice from the Service, but this is a
supplement to, and not a substitute for,
formal consultation. The Service
believes that there should be a
continuous dialogue between the
Service and the Federal agency
involving the exchange of information
and assistance as part of the formal
consultation.
Unless a Federal agency chooses to
avail itself of the exceptions in
paragraph (b), It must Initiate formal
consultation if its proposed action "may
affect" listed spedes or critical habitat.
Any possible effect whether beneficial,
benign, adverse, or of an undetermined
character, triggers the formal
consultation requirement as suggested
-------
1993d*
Federal Register / Vol. 51, No. 106 / Tuesday. June 3". 1986 f RUles and Regulations
by one commenter. However, although
informal consultation is not required, a
Federal agency may use that process
and/or the biological assessment
process to remove an action that "is not
likely to adversely affect" listed species
or critical habitat from the formal
consultation requirement
Proposed paragraph (c), a "no adverse
effect" exception, was attacked as
weakening the Act. One commenter
remarked that this procedure
unrealisticaUy allows Federal agencies
to determine the presence of a
"detrimental effect" through informal
consultation, when the precise objective
of formal consultation is to reach that
same goaL The Service does not agree,
because formal consultation is
conducted to determine if an action is
likely to jeopardize the continued
existence of listed species or result in
the destruction or adverse modification
of critical habitat Adverse effects may
exist without constituting jeopardy.
However, the Service has changed the
trigger for formal consultation to "may
affect" with certain exceptions
contained in paragraph (b).
The exceptions in paragraph (b) are
derived from the "will not adversely
affect" exception in proposed {402.15(c)
and from the confirmation of the
preliminary biological opinion in
proposed (402.15(b). The first exception
is modified to "not likely to adversely
affect" to make the biological
assessment provisions compatible with
the formal consultation provisions.
Under section 7(c) of the Act a
biological assessment is completed to
facilitate compliance with the
consultation provisions of section 7(a)(2)
by identifying whether any species or
critical habitat is "likely to be affected."
If the Federal agency determines, with
Service concurrence, that its action is
not likely to adversely affect any listed
species or critical habitat there is no
need for formal consultation.
Imposing the time delays'and
information responsibilities of formal
consultation on such actions would not
provide any additional protection to
listed species or critical habitat and may
discourage interagency cooperation.
Regulatory flexibility is appropriate here
to eliminate undue burden*. By requiring
the Service's "written concurrence" with
a "not likely to adversely affect" finding
as a prerequisite to invoking the
exception to formal consultation, the
Service believes it has retained
adequate review authority through
informal consultation. If the Information
made available during informal
consultation is not sufficient to make
this determination, formal consultation
is required. The case of Romero-Barcelo
v. Brown, 643 F.2d 835 (1st Cir. 1981),
rev'd on other grounds sub nom.
Weinberger v. Romero-Barcelo, 458 U.S.
305 (1982), does not preclude this
change. That decision interpreted the
1978 rule but did not set a minimum
threshold for initiation of formal
consultation under the Act Paragraphs
(a) and (b). as adopted, are totally
within the statutory authority of the
Service.
The other exception to the general
formal consultation requirement is the
confirmation of a preliminary biological
opinion as the final biological opinion. If
early consultation takes place, the
Service will issue a preliminary
biological opinion. When the
prospective applicant applies for a
Federal permit or license, the Federal
agency may request that the Service
confirm the preliminary biological
opinion as the final biological opinion
that would have been issued after
formal consultation. If the Service
reviews the proposed action and finds
no significant changes In the action as
planned and no significant changes in
the information used during early
consultation, such a confirmation will be
issued. Consultation is required if the
preliminary biological opinion la not
confirmed.
Paragraph (c) of S402.14 specifies the
required contents of a request for formal
consultation. This paragraph is adopted
substantially from proposed
18402.12(b)(7) and 402.15(d).
According to one commenter. the
information requirements of paragraph
(c), which apply to all actions Involved
in formal consultation, lack statutory
authority. The Service dtes the
obligation to use the "best scientific and
commercial data available" and the
overall responsibility to consult in good
faith under section 7(a)(2) as ample
authority for the information
requirements. Proposed item (vi),
requiring a list of Federal agencies that
have jurisdiction in the action area and
how they may be affected, is too broad
since much of this information would be
unrelated to the consultation. Other
Federal actions that are interrelated or
interdependent would be discussed
along with the effects of the action.
Therefore, this item is not included in
the final rule. The remaining items are
essential in determining the parameters
of the action, the extent duration, and
severity of its impacts, and the effects of
other actions in the action area. The
Service retains these essential
information requirements, although it
has noted under subparagraph (5) that
only "relevant" reports, Including
environmental impact statements, etc..
need be supplied, because consultations
will in most cases be completed prior to
the production of final NEPA
documentation for the subject action.
The concluding seatences of
paragraph (c) permit Federal agencies,
subject to the Director's approval, to
tailor their requests for consultation to a
particular segment of a comprehensive
plan, so long as the effects of the ection
as a whole are considered. To clarify
this pasaage, as requested by one
commenter, the Service uses the
example of the management pursuant to
a comprehensive plan, of a National
Wildlife Refuge that is inhabited by a
listed species. Section 7 consultation
may be undertaken on a segment of that
management program, such as big-game
hunting, and « biological opinion will be
issued oa that phase of the program
only. However, in formula ting its
biological opiaioa the Service must
consider the effects, including Indirect
effects, of the action as a whole, and
cumulative affects of unrelated
management programs in reaching the
conclusion of "Jeopardy" or "no
jeopardy." The concluding passage of
paragraph (c)illnstrates the flexibility
inherent in the formal consultation
process and the care with which the
protections of section 7 are preserved.
Paragraph (d) of 1402.14 repeats the
required information standard of section
7(a)(2): "beet scientific and commercial
data available." This paragraph is
adopted eeaentially without change from
proposed |4QUB(d)(2), except that
pursuant to public comment the Service
changed "biolo^cal Information" to
"scientific and commercial data" to
bring the language of the regulation in
line with the Act One commenter
suggested that the phraae "or which can
be developed during the consultation
process" be removed from this
paragraph. The Service has modified the
wording to state that the information
referred to in this paragraph is
information that can be obtained during
the consultation. We believe that
information could become available at
any Hn« during the consultation, and
such information should be submitted to
the Service for Us consideration. The
legislative history of the 1979
Amendments supports this provision.
RR. Conf. Rep. No. 697,98th Cong., 1st
Sess. 12 (1979). The Service is satisfied
that this paragraph adequately
mandates the use of the best available
scientific and commercial data, requires
Federal agencies to supply this data at
any time during formal consultation, and
recognizes that this information
requirement is a Federal agency
-------
Federal Register / Vol. 51. No. 106 / Tuesday. June 3. 1986 / Rules and Regulations
19951
responsibility—not an obligation of the
Service.
Paragraph (d) of {402.14 also adopts a
portion of S 402.15(d)(3) of the proposed
rule that requires the Federal agency to
provide any applicant with the
opportunity to participate in formal
consultations, including submitting
information for consideration during the
consultation. The remainder of proposed
{402.15(d)(3) was deleted because it
duplicated other parts of the final rule.
Paragraph (e) of {402.14 establishes
the time period for conducting formal
consultations and explains the process
for extending the consultation period.
The paragraph is adopted substantially
as proposed in {402.15(e), with certain
technical, clarifying amendments.
The Amendments changed the timing
requirement on the conclusion of formal
consultation from the 60 days originally
established by the 1978 rule to a
m«irimnm of go days or to such time
periods as discussed below. If an
applicant is involved, the Service and
the Federal agency may mutually agree
to extend consultation for up to 60
additional days without the consent of
the applicant provided that the Service
submits to the applicant before the
close of the initial 90-day period a
written statement setting forth (1) the
reasons why a longer period la required,
(2) the information that is required to
complete the consultation, and (3) the
estimated date on which the
consultation will be completed. A
consultation involving an applicant
cannot be extended for more than 60
days without the consent of the
applicant The biological opinion must
be delivered to the Federal agency and
any applicant promptly after the
conclusion of formal consultation
(within 45 days).
One commenter suggested that a
provision be added that would require
the Service to issue a notice concluding
formal consultation with a finding that it
has sufficient information to prepare a
biological opinion. The Service declines
to adopt this comment At the end of the
90-day period (unless extended), the
parties to the consultation realize that
the Service has but 48 days to deliver its
biological opinion to the Federal agency
and any applicant A mandatory notice
of "sufficient information" might be. in
some cases, misleading by creating the
impression that additional information
or studies may not be advisable. The
Service must develop its biological
opinion based upon the best scientific
and commercial data available
regardless of the "sufficiency" of that
data. Therefore, the suggested change
does not accurately reflect the legal
framework within which the Service
must operate.
The Service has defined the statutory
directive to issue biological opinions
"promptly after" the conclusion of
formal consultation as requiring the
delivery of a biological opinion to the
Federal agency and any applicant
within 45 days. Several commenters
agreed with this stipulated deadline as
long as the applicant retains some
control over extensions. Other
commenters felt that the 45-day period
was excessive, and they argued that the
opinion drafting period should either be
worked out with mutually-agreeable
extensions or the opinion should be
issued by the end of the consultation
period. The Service retains the 45-day
drafting period as consistent with the
statutory requirement and as a
necessary time period to further refine
biological opinions after the conclusion
of formal consultation.
One sentence has been added to
paragraph (e) to acknowledge the ability
of the Service and the Federal agency,
where no applicant is involved, to
extend consultation for a mutually-
agreeable time period. This clarification
satisfies the request of one commenter.
Paragraph (f) of {402.14, which
governs Service requests for additional
information, is adopted from
{ 402.15(j)(l) of the proposed rule. The
Service declines to rename this
paragraph "extension of consultation"
because that topic is generally covered
in paragraph (e).
In some cases, the Service may
determine that additional information
would enhance the formulation of its
biological opinion. To cover this
situation, the final rule adopts the
procedures discussed by Congress in the
legislative history of the 1979
Amendments. S. Conf. Rep. No. 697,96th
Cong.. 1st Sess. 12 (1979). When
additional data is believed to be
advantageous, the Service will request
an extension of formal consultation.
When the Service requests such an
extension, it will identify the types of
additional data sought for assisting
consultation. The Service will, to the
extent practicable, and within existing
budgetary and personnel restrictions,
provide assistance in planning studies,
furnishing relevant data, and providing
recommendations that may be
necessary to obtain the additional data.
The responsibility for conducting and
funding any studies, however, belongs to
the Federal agencies or the applicant
and not to the Service.
The comments received on this
paragraph covered a wide spectrum of
opinion as to the breadth of the
Service's authority to request additional
data. Some commenters questioned the
statutory authority of the Service under
this provision, and they erroneously
interpreted the Service s ability to
request additional data as the authority
to require an extension of formal
consultation to obtain such data. Their
position was that additional data was
not a valid reason for seeking an
extension of formal consultation and
that additional data should only be
sought when obtaining it would not
delay the consultation and when the
Service is willing to fund the studies.
Another commenter went further,
suggesting that the request for
additional data be treated as an
extraordinary measure that should be
invoked "reluctantly and only on rare
occasions." The commenter said that the
Service should affirmatively state that
existing data Is presumed to be
adequate and that the Service bears the
burden of demonstrating inadequacy
before seeking additional data.
On the other end of the spectrum,
several commenters faulted the Service
for not requiring an extension so that
additional data could be obtained under
this paragraph. Citing the Federal
agency's statutory duty to use the "best
scientific and commercial data
available" and the decision in Roosevelt
CampobeUo International Park
Commission v. EPA, 684 F.2d 1041 (1st
Or. 1982) ["Pittston case"), these
commenters noted that Federal agencies
are required by section 7(a)(2) to do "all
that [ia] practicable" to develop
information for the consultation. Pittston
case, supra. According to the
commenters, the proposed rule gave too
much discretion to Federal agencies in
controlling the information used in the
consultation process.
The Service adopts the proposed rule
because it recognizes the need for an
opportunity to request additional data
while defening to the Congressional
intent that consultation have a definite
end point Additional data may be
requested by the Service, but die Service
is not relieved of its duty to issue a
biological opinion unless appropriate
time extensions are obtained under
paragraph (e).
However, Federal agencies and
applicants are cautioned that they bear
the burden under section 7(a)(2) to show
that they have obtained the best
available scientific and commercial
data. This is not the Service's burden or
obligation, but the Service does have the
responsibility to alert the Federal
agency and any applicant of areas
where additional data would provide a
better information base from which to
-------
19952
Federal Register / Vol. 51. No. 106 / Tuesday, June 3, 1986 / Rules and Regulations.
formulate a biological opinion. This
advice from the Service is intended to
help the Federal agency to better satisfy
its duty to insure that its action is not
likely to jeopardize listed species or
adversely modify critical habitat
A Service request for additional data
will not be used as a vehicle for
burdening applicants with unnecessary
studies and inordinate delays, as feared
by one commenter. As in the Pittston
case, these requests will be limited to
readily obtainable data that would
assist the Service in formulating its
biological opinion. In paragraph (f), as in
Pittston. a distinction must be made
between requests for special research
projects and requests for routine,
customary data collection activities.
Moreover, paragraph (f) does not take
the final decision regarding the
acquisition of additional data away
from the Federal agency. The agency
still has the discretion to reject the
Service's request for additional data
provided it is not arbitrary or capricious
in doing so. The paragraph has been
clarified to state that the Federal
agency, when collecting additional data,
shall do so to the extent practicable and
within the timeframe of die agreed upon
extension.
The Service, in requesting additional
data, will not comment as to the overall
adequacy of the Federal agency's data.
It is the agency's burden to obtain
credible data. The Service's request for
additional data, just as the Federal
agency's inability to complete any
agreed upon collection of data, should
not be interpreted as evidence that the
Federal agency has failed to meet the
information standard of section 7(a)(2);
it would merely represent the Service's
belief that the additional data would
improve the consultation data base so
that it could issue the best biological
opinion possible. The Service, therefore,
has added language to the final rule to
clarify this provision.
As discussed above, if an extension is
not agreed to in accordance with
paragraph (e), the Service shall issue a
biological opinion based on the best
scientific and commercial data made
available during the consultation. The
Conference Report to the 1979
Amendments states that in this
situation, the Federal agency has a
continuing responsibility to make a
reasonable effort to develop additional
data. H.R. Conf. Rep. No. 697, 96th
Cong., 2d Sess. 12 (1979). By initiating
informal consultation with the Service at
an early stage of the development of a
proposed action, the Federal agency
would, in most cases, minimize the need
to request an extension of formal
consultation because of a lack of data.
In formulating its biological opinion,
the Service must provide the "benefit of
the doubt" to the species concerned.
H.R. Conf. Rep. No. 697, supra, at 12. In
addition, a biological opinion must be
developed within the consultation
timeframe based upon the best scientific
and commercial data available. Though
requested by several commenters. the
Service is not authorized to condition its
"no jeopardy" opinions with
"safeguards" or to issue "may
jeopardize" opinions in retaliation for an
agency refusal to extend consultation or
to develop additional data.
The Service was requested to publish
availability notices for biological
opinions to facilitate public participation
in the conservation of listed species. For
the reasons noted previously in
response to a general comment the
Service declines to impose such a
requirement on itself as an amendment
to paragraph (f).
Paragraph (g) of 9402.14. which sets
out the Service's responsibilities during
formal consultation, is adopted from
proposed 1402.13(f) with only minor
changes to clarify die Service's
responsibilities. The public comments
concerning paragraph (g) focused on the
fifth item: the responsibility to discuss
the availability of reasonable and
prudent alternatives. The Service is
committed to working closely with
Federal agencies and any applicants in
the development of reasonable and
prudent alternatives. However, the
Service is unable to agree that a draft
reasonable and prudent alternative
should be excluded from the biological
opinion if the Federal agency disagrees
as to its reasonableness, as suggested
by one commenter. The Service will in
most cases, defer to the Federal
agency's expertise and judgment as to
the feasibility of an alternative.
Nevertheless, in those instances where
the Service disagrees with a Federal
agency's assessment of the
reasonableness of its alternatives, the
Service must reserve the right to include
those alternatives in the biological
opinion if it determines that they are
"reasonable and prudent" according to
the standards set out in the definition in
S 402.02: the Service cannot abdicate its
ultimate duty to formulate these
alternatives by giving Federal agencies
control over the content of a biological
opinion.
Paragraph (g) provides for Federal
agency and applicant review of the
basis for any finding contained in draft
biological opinions, including the
availability of reasonable and prudent
alternatives. Four commenters requested
that the final rule clarify whether an
applicant was entitled to receive a copy
of the draft biological opinion. The
Service believes that the applicant
should participate in the review and
should receive a copy of the draft
opinion from the Federal agency. The
final rule includes this provision.
The release of draft opinions to
Federal agencies and any applicants
(through the Federal agency) facilitates
a more meaningful exchange of
information. Review of draft opinions
may result in the development and
submission of additional data, and the
preparation of more thorough biological
opinions. Two commenters opposed the
release of draft biological opinions.
Although they were supportive of open
communication and mediation between
the Service and the Federal agency
during the consultation time period the
commenters opposed Federal agency
review of draft opinions because
agencies could bring pressure on the
Service to modify a particular
reasonable and prudent alternative or to
convert the opinion's conclusion from
"jeopardy" la "no Jeopardy." If there
were any discussions needed regarding
the reasonable and prudent alternatives,
noted tha commenters, this could be
done in "further discussion" after the
issuance of the biological opinion. The
Service disagrees that Federal agency
review of draft biological opinions will
result in "rewritten" biological opinions,
unless valid biological reasons mandate
a change. Federal agency review of draft
opinions helps ensure the technical
accuracy of the opinion, and may save
time and resources by resolving these
issues early. The Set-vice believes that
the availability of draft biological
opinions is a meaningful process and
has retained it in the final rule. As noted
previously in the "Definitions" section,
"further discussion" has been deleted
from this rule. Thus, through the
discussions between the Service and the
Federal agency and any applicant
during formal consultation and the
provision to review draft biological
opinions, the exchange of information
for the development of reasonable and
prudent alternatives is sufficient
The proposed rale stated that the 45-
day deadline for delivery of the final
biological opinion would be suspended
while the Federal agency retained the
draft opinion. Several commenters
complained that such a suspension
would violate the statutory deadlines for
concluding formal consultation and that
the applicant would be powerless to
force an end to the consultation.
Although the proposed rule provided
-------
Federal Register / Vol. 51. No. 106 / Tuesday. )une 3, 1988 / Rules and Regulations 19953
that. "[i]f the draft biological opinion is
not returned to the Service within a
reasonable period of tim»- the Service
will issue a final biological opinion." the
Service agrees that the meaning of "a
reasonable period of time" requires
clarification. Therefore, to accommodate
these comments, the Service now
requires the Federal agency to secure
the applicant's written consent to an
extension for a specified time period if
the 45-day deadline is to be suspended
while the draft opinion is under review.
If no extension is agreed to, the
biological opinion will be issued within
45 days of the conclusion of formal
consultation.
Another commenter suggested that the
Service be required to deliver Its
biological opinion within the Federal
agency's NEPA timeframe so that the
biological opinion can be included
without delaying the release of the
agency's NEPA document The Service
will attempt to coordinate all
environmental reviews with the
consultation. However, special timing
problems under other Federal statutes,
or failure to enter Into the consultation
process early in the planning stage of an
action. Is not a Justification for altering
the required timeframe established
under the Act. If a particular Federal
agency needs special procedures to
handle its consultation responsibilities,
the Service urges the development of
counterpart regulations under |402iM.
Paragraph (g) has also been modified
to reflect that the Service, in formulating
its biological opinion, any reasonable
and prudent alternatives, and any
reasonable and prudent measures, will
use the best scientific and commercial
data available and will give appropriate
consideration to any beneficial actions
taken by the Federal agency or
applicant including any actions taken
prior to the initiation of consultation.
Paragraph (h) of (402.14, which deals
with the contents of a biological opinion,
is adopted with minor, technical
corrections from proposed 9*02.15 (g)-
Qi). The final rule distinguishes that
information or material which will be
included in a biological opinion from
that which will be provided with a
biological opinion.
The biological opinion will include: (1)
a summary of the information on which
the opinion is based; (2) a detailed
discussion of the effects of the action on
listed species or critical habitat and (3)
the Service's opinion as to whether the
action is likely to jeopardize the
continued existence of a listed species
or result in the destruction or adverse
modification of critical habitat. The
biological opinion will conclude that
either (1) the action is not likely to
jeopardize the continued existence of
listed species or result in the destruction
or adverse modification of critical
habitat (a "no jeopardy" biological
opinion), or (2) the action is likely to
jeopardize the continued existence of
listed species or result in the destruction
or adverse modification of critical
habitat (a "jeopardy" biological
opinion).
If a "jeopardy" biological opinion is
issued, the Service must identify and
include reasonable and prudent
alternatives, if any. that will avoid
jeopardy and that the Federal agency or
applicant can implement If the Service
is unable to develop reasonable and
prudent alternatives, it will indicate
that to the best of its knowledge, there
are no such alternatives that would
satisfy the standard of section 7(a)(2).
Paragragh (i) of S402.14, which
governs incidental taking under section
7(b)(4) of the Act is adopted essentially
as proposed in $402.19. This paragraph
is included in the formal consultation
section of the final rule because of the
direct relationship between fin*l
biological opinions and incidental take
statements.
The 1982 Amendments changed
section 7(b) to include provisions
concerning incidental taking of species.
The new provisions included in sections
7(b)(4) and 7[o)(2) of the Act are
designed to resolve the situation where
a Federal agency or an applicant has
been advised, through a biological
opinion, that the proposed action or the
adoption of the reasonable and prudent
altemative(s), will not violate section
7(a)(2) of the Act but the proposed
action (or adopted alternative) will
result in taking individuals of a listed
species incidental to the action. The
new provision states that if the action
complies with specified terms and
conditions, the resulting incidental take
will not be a violation of any "taking"
prohibitions established by section 4(d)
or 9(a)(1) of the Act
As noted in the public comments, the
availability of an "incidental" taking
exemption through the section 7
consultation process is a welcome
clarification made by the 1982
Amendments. However, many
commenter* requested additional
guidance on this subject and several felt
that the proposed rule was cumbersome
and burdensome. The Service believes
that the following discussion will clarify
the incidental take provision and
explain the incentives for compliance
with sections 7(a)(2) and 7(b)(4) of the
Act.
If an agency action receives a "no
jeopardy" biological opinion, or if the
Federal agency adopts any reasonable
and prudent alternative provided in a
"jeopardy" biological opinion, then the
action may proceed in compliance with
section 7. An incidental take statement
will be provided with the biological
opinion when the activity may
incidentally take individuals of a listed
species but not so many as to jeopardize
their continued existence. If the action
proceeds in compliance with the terms
and conditions of the incidental take
statement then any resulting incidental
takings are exempt from the prohibitions
of section 4(d) or 9 of the Act. No permit
is required of the Federal agency or any
applicant in carrying out the action, as
one commenter contended. The
biological opinion, plus the incidental
take statement operate as an exemption
under section 7(o)(2) of the Act.
However, this exemption is limited to
actions taken by the Federal agency or
applicant that comply with the terms
and conditions specified in the
incidental take statement Compliance
with these terms and conditions is
mandatory to qualify for the exemption
from section 4(d) or 9 of the Act
"Actions that are not in compliance with
the specified measures... remain
subject to the prohibition against takings
that is contained in section 9." S. Rep.
No. 418,97th Cong* 2d Sess. 21 (1982).
Therefore, the Service cannot make
these terms discretionary, as urged by
one commenter.
Paragraph (i)(l) states that where
incidental takings may occur, the
Service will provide with the biological
opinion to the Federal agency and
applicant a written statement that: (i)
specifies the impact i.e.. amount or
extent of such anticipated incidental
take of the species that does not violate
section 7(a)(2), (ii) specifies those
reasonable and prudent measures
necessary or appropriate to minimize
such impact (iii) sets forth the terms
and conditions, including, but not
limited to, reporting requirements, that
must be complied with by the Federal
agency or any applicant in order to
implement the reasonable and prudent
measures specified under (ii) above, and
(iv) specifies the procedures to be used
to handle or dispose of any individuals
of a species actually takea Several
comments were received on these
elements of the incidental take
statement.
Because, in some cases, exact
numerical limits on the amount of
permissible incidental taking will be
difficult to determine, the Service may,
in accordance with (i)(l)(i). specify the
extent of anticipated take that will not
violate section 7(a)(2) of the Act. The
impact of a particular action may only
-------
19954
Federal Register / Vol. 51. No. 106 / Tuesday, June 3. 1988 / Rules and Regulations
be predictable in terms of the extent of
land or marine area that may be
affected. Precise numbers of Individuals
that may be taken are preferable to
descriptions of the extent of disruption
and will be provided when they can be
computed. However, the Service
reserves the flexibility in the rule so that
the most appropriate standard for an
individual consultation can be used. The
Service declines to endorse the use of
numerical amounts in all cases over the
use of descriptions of extent because
for some species Iosb of habitat resulting
in death or injury to Individuals may be
more deleterious than the direct loss of
a certain number of individuals.
Likewise, the Service declines to
incorporate into the final rule the
comment that would focus take levels
on population numbers and recovery
plan guidelines, if available. One
commenter suggested that two figures or
levels be specified: "the expected and
the acceptable amount or extent" of
take. This approach offers the benefit of
giving a "caution" signal to Federal
agencies or applicants as they approach
a possible problem with the incidental
takings resulting firom the action. Stepa
could be taken to correct the course of
the action before the threshold of
reinitiation (level of maximum
anticipated take) is exceeded. The
Service recognizes the merit of this
approach but does not require that it be
followed under the final rule because it
may not be appropriate for all Federal
actions.
Paragraph (i)(l)(ii) states that the
incidental take statement shall specify
those reasonable and prudent measures
necessary to minimi-™ the level of
incidental take. For the reasons
discussed under the definition of
reasonable and prudent measures, the
Service has added a new paragraph
(i)(2) to the final rule to clarify that
reasonable and prudent measures may
only involve minor changes that do not
alter the basic design, location, duration,
or timing of the action. Should the
Service believe that the way to mtwimtaw
the incidental takings Is through
research, an explanation of how such
research will accomplish this will be
included. Any research-related
reasonable and prudent measure shall
be subject to the limitations in
paragraph (i)(2).
Paragraph (i)(l)(iii) provides that
reporting requirements must be included
in the terms and conditions of an
incidental take statement. Ab explained
in paragraph (i)(3), these reporting
requirements will be tailored to the
nature of the particular Federal action
and will, to the extent possible, be
limited to existing reporting
requirements.
Under 50 CFR 13.45 (FWS) and
222.23(d) (NMFS). there are provisions
concerning reporting requirements for
any taking of threatened or endangered
species. These reporting requirements
are not limited to annual reports, and
may vary in accordance with the
particular needs of the species as set
forth in the incidental take statement
Congress did not prohibit the imposition
of new reporting requirements, contrary
to the assertion of one commenter.
Another commenter said that the
disposal procedures in item (i)(l)(iv)
should refer to "specimens" taken, not
to species taken. The Service has
accommodated the commenter1* concern
by inserting "individuals of a species" in
item (iv).
Paragraph (l)(4) requires the Federal
agency or the applicant to immediately
request reinitiation of formal
consultation if the specified amount or
extent of incidental take is exceeded.
One commenter argued that the Service
is allowing the "jeopardy" ceiling to be
exceeded in (i)(4). The Service
disagrees; however, the Service agrees
that the amount or extent of take should
not be set at the threshold of likely
jeopardy. If the establishment of such a
high taking level were necessary to
cover all impacts of a proposed action. It
is questionable whether the issuance of
a "no jeopardy" opinion la appropriate.
It is not expected that the level of
incidental take anticipated for most "no
jeopardy" actions would come close to
the section 7(a)(2) barrier.
Congress recognized this in the House
Report to the 1982 Amendments:
If the specified Impact on the species is
exceeded, the Committee expects that the
Federal agency or permittee or licensee will
immediately reinitiate consultation since the
level of taking exceeds the impact specified
in the initial section 7(b)(4) statement. In the
interim period between die initiation and
completion of the new consultation, the
Committee would not expect the Federal
agency or permittee or licensee to cease all
operations unless it was clear that the impact
of the additional taking would cause an
irreversible and adverse impact on the
species.
Hit Rep. No. 567,97th Cong., 2d Sess.
27 (1982). Exceeding the level of
anticipated taking does not. by itself,
require the stopping of an ongoing
action during reinitiation of
consultation. The Federal agency must
make this ultimate decision, taking into
consideration the prohibitions of
sections 7(a)(2) and 7(d). Further, the
Service will enforce'the taking
prohibitions of section 4(d) or 9 if the
continuation of an action, after the
anticipated level of incidental take has
been reached, results in additional
takings of listed species.
This provision for incidental take in
no way affects a Federal agency's
responsibility under section 7(a)(2) to
ensure that its action is'not likely to
jeopardi2e the continued existence of a
listed species or result in the destruction
or adverse modification of critical
habitat The Service agrees with one
commenter that the basis for the
conclusion that incidental take will not
violate section 7(a)(2) should be
included with the biological opinion.
Paragraph (j) specifies that the Service
may provide any conservation
recommendations with the biological
opinion. Several co mm enters objected to
the inclusion of conservation
recommendations in the biological
opinion, and questioned whether these
recommendations wen to have binding
force. The comment submitted by the
House Committee summarized these
concerns:
While ths pioposad regulations conform to
the statute regarding the —¦—¦¦¦¦¦utinfl of
"reasonable and prudent aharoatlvea" only
where Jeopardy Is found, they also inject a
totally new concept referred to as
"conservation recommendations." Although
we do not argne with the appropriateness of
wildlife agencies recommending measures
that eould be taken to lessen a project's
impact on endangered or threatened species,
it should be made dear in the regulations that
failure to abide by theae recommendations
does not result in a violation of section 7(a)(2)
of the Act. In addition, while the language of
section 7(a)(1) does direct all Federal
agencies to "utilise their authorities in
furtherance of the purposae of [the Act) by
canying out programs for ths conservation of
endangered spedss snd threatened species'*,
we do not believe that it was Intended that
section 7(a)(1) require developmental agency
actions to be treated aa conservation
programa for endangered or threatened
species. We also do not believe that all of the
conservation recommendations of the
Secretary have to be followed for this
requirement to be met Such an Interpretation
would render the much debated provisions of
section 7(a)(2) redundant and essentially
meaningless and bring about endless
litigation.
Accordingly, we suggest thst any
conservation recommendations be
transmitted to action agencies separate from
biological opinions and that the regulations
state plainly that failure to accept or
implement the recommendations does not
constitute a violation of section 7 of the Act.
The Service agrees with the
Committee's comments and has
amended the proposed rule accordingly.
Discretionary conservation
recommendations will be provided with
the biological opinion as a separate
statement rather than as an integral part
-------
Federal Register { Vol. 51. No. 10d / Tuesday, June 3,1986 / Rules and Regulations
19055
of the opinion. In this rule, conservation
recommendations [402.14{j)] are
discussed separately from biological
opinions [402.14(h)]. A sentence has
been added at the conclusion of
paragraph (J) to emphasize the advisory,
non-binding nature of conservation
recommendations.
Paragraph (k) of {402.14, which deals
with incremental steps, is adopted with
minor, technical changes from proposed
S402.15(jH2). Paragraph (k) applies, at
the option of the Federal agency, in
situations where a statute authorizes the
Federal action to be taken in
incremental steps. Such circumstances
existed in North Slope Borough v.
Andrua. 642 F.2d 589 [D.C. Or. 1980).
involving development of oil and gas
resources on the OCS and possible
impacts to the bowhead whale. In view
of this decision, these regulations
provide that a Federal agency may
proceod with incremental steps toward
completion of the entire action if: (1) the
biological opinion does not conclude
that the incremental step would violate
section 7(a)(2); (2) the Federal agency
continues consultation with respect to
the entire action and obtains biological
opinions, as required, for each
incremental step: (3) the Federal agency
fulfills its continuing obligation to obtain
sufficient data upon which to base the
final biological opinion on the entire
action; (4) the incremental step doe* not
violate section 7(d) of the Act
concerning irreversible or irretrievable
commitment of resources; and (S) than
is a reasonable likelihood that this entire
action will not violate section 7(a)(2) of
the Act
In response to one comment the
Service acknowledges that the
incremental step process can only be
invoked at the option of the Federal
agency, regardless at the Service's
preference. If the Federal agency
chooses not to use the inaemental step
process, the Service must render its
biological opinion for the entire action.
Several commented thought that
provision should b« deleted. Some
thought the subject should be handled
through counterpart regulations or
limited itrictly to Onte Continental
Shelf Lands Act cases. Another
commenter stated that the incremental
step approach is ill-advised because it is
difficult to halt a project at its final stage
after substantial resources have been
invested. Finally, two commenters
criticized the epproach as a vehicle
granting the Service veto power at any
stage of the Federal action.
Paragraph (k) is retained in the final
rule for several reasons. First the
Service adopts paragraph (k) because it
provides a viable consultation approach
sanctioned by the court in North Slope
Borough v. Andrua. supra. The Service
has clarified the final rule to show that it
will not deprive a Federal agency of the
opportunity to consult on incremental
steps if requested. Second, the risk of
section 7(a)(2) and 7(d) noncompliance
should not be diminished because the
incremental step approach is used.
Monetary investments or other actions
that do not foreclose the adoption of
reasonable and prudent alternatives do
not violate section 7(d). If a "jeopardy"
opinion is issued at any step of the
overall action, a prompt remedy can be
sought through the exemption
procedure. Irtird. consulting in
incremental steps can be a valuable tool
for developing information as an action
progresses.
Oil and gas development on the OCS
is a multistaged, long term action that
provides a good example of the utility of
an incremental step consultation. The
Federal action occurs in discrete stages:
the lease sale, exploration activities,
and development/production activities.
Any analysis of the impacts at
development/production would be man
speculation without knowing what
tracts will be leased and without tba
information on the extent of die
petroleum reserves discovered during
the exploration phase. As the scope and
location of the ultimate action is further
refined, the Federal agency will have the
opportunity to conduct studies designed
to determine the effects of that
particular action in that particular area.
The Service is sympatnetic to the
commenter*a concern that applicants
might face an arduous series of
consultations under paragraph (k).
whereas a prompt consultation an the
entire action would avoid a series of
reviews by the Service. The Service
reminds applicants that they may, in
appropriate instances, avail themselves
of the early consultation procedure to
obtain a praapplication review of the
remaining steps of the Federal action.
Under paragraph (k), biological
opinions concluding "no Jeopardy," or
Service concurrence letters finding that
a step "is not likely to adversely affect"
must eventually cover each step of the
incremental process. This does not mean
that separate opinions must be issued
for each step—several steps may be
covered In one opinion [eg*, OCS
leasing and exploration activities)—but
instead that each step must eventually
satisfy section 7(a)(2) of the Act A
"jeopardy" opinion issued at any stage
not only applies to that step but to the
entire project as welL Once a
"Jeopardy" opinion is issued (unless the
Federal agency adopts a reasonable and
prudent alternative provided by the
Service), paragraph (k) is inapplicable
and the ordinary consultation process
applies, allowing access to the
exemption process. The commenter that
contended that this approach is
tantamount to a usurpation of Federal
agency statutory authority ignores the
fact that this process is at the option of
the Federal agency and that the net
effect of the Service's action is to cause
the consultation to revert to a treatment
of the action as a whole. The Federal
agency may disagree with jhe Service's
"jeopardy" finding, but it cannot
continue to consult on an incremental
basis on remaining steps in the action.
One commenter insisted that an
action can be halted only if new
information that was not previously
known becomes available during a later
stage of the incremental step
consultation. However, the Service's
responsibility to determine "jeopardy"
or "no Jeopardy" places no weight on
when, where, or how data that is of
compelling force in Its analysis were
developed. The Service cannot ignore
date and permit a Hated species to
become Jeopardized because someone
"missed" a piece of Information during
an earUer step of the consmtatlon. One
of the criteria for reinitiation of formal
consultation is whether new information
reveals effects of the action that may
affect a listed species or critical habitat
in a or to an extent not
previously considered. Therefore,
incremental step consultations are not
the only consultations subjected to this
requirement
Finally, one commenter objected to
the requirement for obtaining sufficient
data, noting an alleged absence of
statutory authority. Again, paragraph (k)
is not a creature of statute, but instead
was developed so that consultations
could be initiated and focused on a step-
by-step review of segmented Federal
actions—especially those where, in the
absence of additional information, the
final determination of "likely Jeopardy"
for the entire action would be highly
speculative if consultation were not
limited to the Initial step or steps. The
development of sufficient information is
crucial to the ultimate success of the
incremental step process, and, therefore,
cannot be eliminated from the rule. The
Federal agency must have sufficient
information to show that its action is not
likely to Jeopardize the continued
existence of listed species or result in
the destruction or adverse modification
of critical habitat
Section 402.14(1) covers the
termination of formal consultation.
Adopted from proposed S402.15(i)(2H4).
paragraph (1) was retained in the section
-------
19956
Federal Register / Vol. 51. No. 106 / Tuesday, June 3. 1986 / Rules and Regulations
on formal consultation because (402.14
is the primary mandatory procedure of
Part 402.
The proposed rule provided that
consultation terminated with the
issuance of a "no jeopardy" opinion
unless further discussion took place,
and, if a "jeopardy" opinion was issued,
consultation terminated with the
Service's receipt of the Federal agency's
decision on the action. This notice
requirement was criticized by several
commenters as unnecessary and as
extending consultation beyond the legal
timeframe. As discussed under the
"Definitions" section above, further
discussion has been deleted as a formal
step in the consultation process. Further,
to accommodate the concerns,
consultation terminates with the
issuance of the biological opinion,
whether "jeopardy" or "no jeopardy."
However, the Service believes that the
Federal agency notice of final action
with respect to "jeopardy" opinions
represents a minimal burden and has
retained it under {402.15—
"Responsibilities of Federal agency
following issuance of a biological
opinion." The Service agrees that a copy
of the NEPA record of decision would
meet the notice provisions of 1402.15(b):
the Service disagrees that this approach
causes problems with NEPA
compliance.
Finally, one commenter suggested that
written notice be required to terminate
consultation if a Federal agency or
applicant decides to cancel plans for the
action that is the subject of the
consultation. The Service agrees that a
written notice of termination is
preferred, and has adopted the
commenter" s suggestion in paragraph
(D(2).
Section 402.15 Responsibilities of
Federal Agency Following Issuance of a
Biological Opinion.
Following the receipt of the Service's
biological opinion, the Federal agency
will make its final decision on the
action. Section 402.15 describes the
steps that the Federal agency should
take after consultation is concluded.
Paragraphs (a) and (c) of this section are
adopted substantially without change
from proposed {402.17. Paragraph (b) is
adopted from proposed {402.15(i)(3)
(last sentence).
Several commenters asked that the
Federal agency be required to provide a
statement of its reasons if it has chosen
to disregard the Service's biological
opinion. The Service declines to
implement this request because it
remains the responsibility of each
Federal agency to insure that it is in
compliance with section 7(a)(2) and that
it has established an administrative
record for a given activity which
demonstrates such compliance.
Federal courts have accorded Service
biological opinions great deference. It.
therefore, is incumbent upon a Federal
agency to articulate in its administrative
record its reasons for disagreeing with
the conclusions of a biological opinion.
But this is a matter which is primarily
controlled under the provisions and
judicial interpretations of the
Administrative Procedure Act not these
regulations. Thus, the requested
modification would add nothing that is
not already required as a matter of
administrative law.
Paragraph (c) points out the
availability of an exemption process if
the Federal agency determines that its
proposed action cannot comply with
section 7(a)(2). Although not covered in
{402.15, the applicant may also pursue
an exemption if it receives a final denial
of its application as a result of a
"jeopardy" biological opinion. The
Service disagrees with one commenter
that the applicant may seek an
exemption if the Federal agency issues
the permit or license with conditions
related to section 7 considerations. The
Act requires a final agency denial and
the issuance of a "jeopardy" biological
opinion on the action, as predicates for
an applicant's entry into the exemption
process. See sections 3(12) and 7(g)(1) of
the Act
Section 402.16 Reinitiation of Formal
Consultation.
Reinitiation of formal consultation ia
required in certain instances as
specified in (402.10. The reinitiation
requirement applies only to actions that
remain subject to some Federal
involvement or control. In the case
where a permit or license had been
granted, reinitiation would not be
appropriate unless the permitting or
licensing agency retained jurisdiction
over the matter under the terms of the
permit or license or as otherwise
authorized by law.
In response to one comment the
Service notes its lack of authority to
require Federal agencies to reinitiate
consultation if they choose not to do so.
Nevertheless, the Service shall request
reinitiation when it believes that any
condition described in this section
applies.
Pursuant to several public comments,
several minor changes have been made
to {402.18 (proposed {402.18). Proposed
paragraph (a), dealing with
nonconfirmation of preliminary
biological opinions, was deleted since it
is more properly covered in the
discussion of early consultation. The
standard for reinitiation on incidental
take statements is clarified in new
paragraph (a). Paragraph (c) is clarified
to show that changes to the action that
do not cause effects different from or
additional to those considered in the
biological opinion will not require
reinitiation of formal consultation.
Summary
The Amendments made significant
changes in the consultation
requirements of section 7, and the
Service believes that a consistent
response by the Federal agencies to
those Amendments, as implemented by
this final rule, will facilitate successful
compliance with section 7 of the Act
The Service believes that these
regulations will serve as an effective
tool for the early resolution of potential
conflicts involving listed spedes.
The primary authors of this final rule
are Michael Young and Nancy Sweeney,
Department of the Interior Patricia
Carter, Patricia Montanio, and Michael
Gosliner. Department of Commerce.
The Department of the Interior, as
lead agency in the development af these
regulations, has prepared an
environmental assessment in
conjunction with this rulemaking. On the
basis of the environmental assessment
it has been determined that this is not a
major Federal action significantly
affecting the quality of the human
environment within the meaning of
section 102(2](C) of the National
Environmental Policy Act of 1909
(implemented at 40 CFR Parts 1500-
1508). Therefore, an environmental
impact statement need not be prepared.
These procedural regulations simply
provide a uniform approach for
consultation required by section 7 of the
Act Compliance with the procedures in
these regulations will not have any
significant direct or indirect adverse
environmental impact It also has been
determined that these regulations do not
constitute major rules as defined in
Executive Order 12201. The Department
of the Interior has certified, under the
terms of the Regulatory Flexibility Act (5
U.S.C. 601), that these regulations will
not have a significant economic impact
on a substantial number of small
entities. The regulations are directed at
Federal actions. The costs to small
entities are those involved with timing
and data gathering, if requested by the
Federal agency. Even if the costs were
passed on. the analysis under the
Regulatory Flexibility Act has
concluded that they are not substantial.
The Department has determined that
these rules do not contain "collection of
information" or recordkeeping
-------
Federal Register / Vol. 51, No. 106 / Tuesday. June 3. 1986 / Rule's and Regulations" 19957
requirement! as defined by the
Paperwork Reduction Act The analyses
under Executive Order 12291. the
Regulatory Flexibility Act and NEPA
are available to the public at the Office
of Endangered Species, U.S. Fish and
Wildlife Service, at the address listed
above.
List of Subjects in 50 CFR Fart 402
Endangered and threatened wildlife,
Fish, Intergovernmental relations. Plants
(agriculture).
Regulation Promulgation
Accordingly, the Service revises 50
CFR ftart 402 to read as follows:
PART 402—INTERAGENCY
COOPERATION—ENDANGERED
SPECIES ACT OF 1973, AS AMENDED
Subpart A—General
Sac.
40101 Scope.
40242 Definition*.
40243 Applicability.
MOM Counterpart regulation*.
402.06 Emergencies.
40246 Coordination with other
environmental reviews.
40247 Designation of lead agency.
40&06 Designation of non-Federal
representative.
40249 Irreversible or irretrievable
commitment of resources.
402.10 Conference on proposed (pedes or
proposed critical habitat
402.11 Early consultation.
402.12 Biological assessment
402.13 Informal consultation.
402.14 Formal consultation.
402.18 Responsibilities of Federal agency
following Issuance of a biological
opinion.
402.16 Reinitiation of consultation.
Authority: 16 U.S.C. 1531 ft teq.
(40241 Scop*.
(a) This Part interprets and
implements sections 7(a)-(d) [10 U.S.C.
1538(aHd)] of the Endangered Species
Act of 1973, as amended ("Act"). Section
7(a) grants authority to and imposes
requirements upon Federal agencies
regarding endangered or threatened
species of fish, wildlife, or plants
("listed species") and habitat of such
species that has been designated as
critical ("critical habitat"). Section
7(a)(1) of the Act directs Federal
agencies, in consultation with and with
the assistance of the Secretary of the
Interior or of Commerce, as appropriate,
to utilize their authorities to further the
purposes of the Act by carrying out
conservation programs for listed
species. Such affirmative conservation
programs must comply with applicable
permit requirements (50 CFR Parts 17,
220, 222. and 227) for listed species and
should be coordinated with the
appropriate Secretary. Section 7(a)(2) of
the Act requires every Federal agency,
in consultation with and with the
assistance of the Secretary, to insure
that any action it authorizes, funds, or
carries out in the United States or upon
the high seas, is not likely to jeopardize
the continued existence of any listed
species or results in the destruction or
adverse modification of critical habitat
Section 7(a)(3) of the Act authorizes a
prospective permit or license applicant
to request the issuing Federal agency to
enter into early consultation with the
Service on a proposed action to
determine whether such action is likely
to jeopardize the continued existence of
listed species or result in the destruction
or advene modification of critical
habitat Section 7(a)(4) of the Act
requires Federal agencies to confer with
the Secretary on any action that is likely
to jeopardize the continued existence of
proposed species or result in the
destruction or adverse modification of
proposed critical habitat Section 7(b) of
the Act requires the Secretary, after the
conclusion of early or formal
consultation, to issue a written
statement setting forth the Secretary's
opinion detailing how the agency action
affects listed species or critical habitat
Biological assessments are required
under section 7(c) of the Act if listed
species or critical habitat may be
present in the area affected by any
major construction activity as defined in
S404.02. Section 7(d) of die Act prohibits
Federal agencies and applicants from
making any irreversible or irretrievable
commitment of resources which has the
effect of foreclosing die formulation or
implementation of reasonable and
prudent alternatives which would avoid
jeopardizing the continued existence of
listed species or resulting in the
destruction or adverse modification of
critical habitat Section 7(eHo)(l) of the
Act provide procedures for granting
exemptions from the requirements of
section 7(a)(2). Regulations governing
the submission of exemption
applications are found at 50 CFR Part
451, and regulations governing the
exemption process are found at 50 CFR
Parts 450,452, and 453.
(b) The U.S. Fish and Wildlife Service
(FWS) and the National Marine
Fisheries Service (NMFS) share
responsibilities for administering the
Act The Lists of Endangered and
Threatened Wildlife and Plants are
found in 50 CFR 17.11 and 17.12 and the
designated critical habitats are found in
50 CFR 17.95 and 17.98 and 50 CFR Part
226. Endangered or threatened species
under the jurisdiction of the NMFS are
located in 50 CFR 222J3(a) and 227.4. If
the subject species is cited in 50 CFR
222.23(a) or 227.4. the Federal agency
shall contact the NMFS. For all other
listed species the Federal Agency shall
contact the FWS.
J 402.02 Definitions.
"Act" means the Endangered Species
Act of 1973, as amended. 16 U.S.C. 1531
et seq.'
"Action" means all activities or
programs of any kind authorized,
funded, or carried out in whole or in
part by Federal agencies in the United
States or upon the high seas. Examples
include, but are not limited to: (a)
actions intended to conserve listed
species or their habitat fb) the
promulgation of regulations; (c) the
granting of licenses, contracts, leases,
easements, rights-of-way, permits, or
grants-in-aid: or (d) actions directly or
indirectly causing modifications to the
land, water, or air.
"Action* area" means all areas to be
affected directly or indirectly by the
Federal action and not merely the
immediate area involved in the action.
"Applicant" refers to any person, as
defined in section 3(13) of the Act who
requires formal approval or
authorization from a Federal agency as
a prerequisite to conducting the action.
"Biological assessment" refers to 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
"Biological opinion" is the document
that states the opinion of the Service as
to whether or not the Federal action is
likely to jeopardize the continued
existence of listed species or result in
the destruction or adverse modification
of critical habitat
"Conference" is a process which
involves informal discussions between a
Federal agency and the Service under
section 7(a)(4) of the Act regarding the
impact of an action on proposed species
or proposed critical habitat and
recommendations to minimize or avoid
the adverse effects.
"Conservation recommendations" are
suggestions of the Service regarding
discretionary measures to minimize or
avoid adverse effects of a proposed
action on listed species or critical
habitat or regarding the development of
information.
-------
19958
Federal Register / Vol. 51. No. 106 / Tuesday, June 3. 1988 / Rules and Regulations
"Critical habitat" refers to an area
designated as critical habitat listed in 50
CFR Parts 17 or 228.
"Cumulative effects" are those effects
of future State or private activities, not
involving Federal activities, that are
reasonably certain to occur within the
action area of the Federal action subject
to consultation.
"Designated non-Federal
representative" refers to a person
designated by the Federal agency as its
representative to conduct informal
consultation and/or to prepare any
biological assessment
"Destruction or adverse modification"
means a direct or indirect alteration that
appreciably diminishes the value of
critical habitat for both the survival and
recovery of a listed species. Such
alterations include, but are not limited
to. alterations adversely modifying any
of those physical or biological features
that were the basis for determining the
habitat to be critical.
"Director" refers to the Assistant
Administrator for Fisheries for the
National Oceanic and Atmospheric
Administration, or his authorized
representative: or the Fish and Wildlife
Service regional director, or his
authorized representative, for the region
where the action would be carried out
"Early consultation" is a process
requested by a Federal agency on behalf
of a prospective applicant under section
7(a)(3) of the Act.
"Effects of the action" refers to 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. 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. Indirect
effects are those that are caused by the
proposed action and are later in time,
but still are reasonably certain to occur.
Interrelated actions are those that are
part of a larger action and depend on
the larger action for their justification.
Interdependent actions are those that
have no independent utility apart from
the action under consideration.
"Formal consultation" is a process
between the Service and the Federal
agency that commences with the Federal
agency's written request for consultation
under section 7(a)(2) of the Act and
concludes with the Service's issuance of
the biological opinion under section
7(b)(3) of the Act.
"Incidental take" refers to takings that
result from, but are not the purpose of.
carrying out an otherwise lawful activity
conducted by the Federal agency or
applicant.
"Informal consultation" is an optional
process that includes all discussions,
correspondence, etc., between the
Service and the Federal agency or the
designated non-Federal representative
prior to formal consultation, if required.
"Jeopardize the continued existence
or* means to engage in an action that
reasonably would be expected, directly
or indirectly, to reduce appreciably 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.
"Listed species" means any species of
fish, wildlife, or plant which has been
determined to be endangered or
threatened under section 4 of the Act
Listed species are found in SO CFR
17.11-17.12.
"Major construction activity" is a
construction project (or other
undertaking having similar physical
impacts) which is a major Federal action
significantly affecting the quality of the
human environment as referred to in the
National Environmental Policy Act
[NEPA. 42 U.S.C. 4332(2)(C)).
"Preliminary biological opinion"
refers to an opinion issued as a result of
early consultation.
"Proposed critical habitat" means
habitat proposed in the Federal Register
to be designated or revised as critical
habitat under section 4 of the Act for
any listed or proposed species.
"Proposed spedes" means any
species of fish, wildlife, or plant that is
proposed in the Federal Register to be
listed under section 4 of the Act
"Reasonable and prudent
alternatives" refer to alternative actions
identified during formal consultation
that can be implemented in a manner
consistent with the intended purpose of
the action, that can be implemented
consistent with the scope of the Federal
agency's legal authority and jurisdiction,
that is economically and technologically
feasible, and that the Director believes
would avoid the likelihood of
jeopardizing the continued existence of
listed species or resulting in the
destruction or adverse modification of
critical habitat
"Reasonable and prudent measures"
refer to those actions the Director
believes necessary or appropriate to
minimize the impacts, i.e.. amount or
extent, of incidental take.
"Recovery" means improvement in
the status of listed species to the point
at which listing is no longer appropriate
under the criteria set out in section
4(a)(1) of the Act.
"Service" means the U.S. Fish and
Wildlife Service or the National Marine
Fisheries Service, as appropriate.
$402.03 AppHcaMlty.
Section 7 and the requirements of this
Part apply to all actions in which there
is discretionary Federal involvement or
control.
S402JM Counterpart regutattona.
The consultation procedures set forth
in this Part may be superseded for a
particular Federal agency by joint
counterpart regulations among that
agency, the Fish and Wildlife Service,
and the National Marine Fisheries
Service. Such counterpart regulations
shall be published in the Federal
Register in proposed form and shall be
subject to public comment for at least 60
days before final rules are published.
{402JS Emergencies
(a) Where emergency circumstances
mandate the need to consult in an
expedited manner, consultation may be
conducted informally through
alternative procedures that the Director
determines to be consistent with the
requirements of sections 7(aHd) of the
Act This provision applies to situations
involving acts of God, disasters,
casualties, national defense or security
emergencies, etc.
(b) Formal consultation shall be
initiated as soon as practicable after the
emergency is under control. The Federal
agency shall submit information on the
nature of the emergency actions), the
justification for the expedited
consultation, and the impacts to
endangered or threatened species and
their habitats. The Service will evaluate
such information and issue a biological
opinion including the information and
recommendations given during the
emergency consultation.
$40Z06 Coocdkwtton wttt) otter
environmental reviews*
(a) Consultation, conference, and
biological assessment procedures under
section 7 may be consolidated with
interagency cooperation procedures
required by other statutes, such as the
National Environmental Policy Act
(NEPA) (42 U.S.C. 4321 et seq..
implemented at 40 CFR Parts 1500-1508)
or the Fish and Wildlife Coordination
Act (FWCA) (16 U.S.C. 661 et seq.).
Satisfying the requirements of these
other statutes, however, does not in
itself relieve a Federal agency of its
-------
Federal Register / Vol. 51. No. 106 / Tuesday, June 3.1988 / Rules and Regulations 19959
obligations to comply with the
procedures set forth In this Part or the
substantive requirements of section 7.
The Service will attempt to provide a
coordinated review and analysis of all
environmental requirements.
(b) Where the consultation or
conference has been consolidated with
the interagency cooperation procedures
required by other statutes such as NEPA
or FWCA. the results should be included
in the documents required by those
statutes.
(402.07 DsilgnHon of lead agency.
When a particular action involves
more than one Federal agency, the
consultation and conference
responsibilities may be fulfilled through
a lead agency. Factori relevant in
determining an appropriate lead agency
include the time sequence in which the *
agencies would become involved, the
magnitude of their respective
involvement and their relative expertise
with respect to the environmental
effects of the action. The Director shall
be notified of the designation in writing
by the lead agency.
94OL0I PsNgwdan d wow Federal
A Federal agency may designate a
non-Federal representative to conduct
informal consultation or prepare a
biological assessment by giving written
notice to the Director of such
designation. If a permit or license
applicant is involved and Is not the
designated non-Federal representative,
then the applicant and Federal agency
must agree on the choice of the
designated non-Federal representative.
If a biological assessment is prepared by
the designated non-Federal
representative, the Federal agency
furnish guidance and supervision and
shall independently review and evaluate
the scope and contents of the biological
assessment The ultimate responsibility
for compliance with section 7 remains
with the Federal agsnoy.
}40ZM IrmsisMs aHw*He»sMe
UMINIVunPH Qt mOUNk
After initiation er reinitiation of
consultation required under section
7(a)(2) of the Act the Federal agency
and any applicant shall make no
irreversible or irretrievable
of resources with respect to the agency
action which has the effect of
foreclosing the formulation or
implementation of any reasonable and
prudent alternatives which would avoid
violating section 7(a)(2). This prohibition
is in force during the consultation
process and continues until the
requirements of section 7(a)(2) are
satisfied. This provision does not apply
to the conference requirement for
proposed species or proposed critical
habitat under section 7(a)(4) of the Act
Subpart B—Coitaultatiofi Procedures
5 402.10 Conference on prop nesd spec*—
or pfoponQ wiw nmn
(a) Each Federal agency shall confer
with the Service on any action which is
likely to jeopardixe the continued
existence of any proposed species or
result in the destruction or adverse
modification of proposed critical
habitat The conference is designed to
assist the Federal agency and any
applicant In identifying and resolving
potential conflicts at an early stage in
the planning process.
(b) The Federal agency shall initiate
the conference with the Director. The
Service may request a conference if,
after a review of available information,
it determines that a conference is
required for a particular action.
(c) A conference between a Federal
agency and the Service shall consist of
informal discussions concerning an
action that is likely to jeopardize the
continued existence of the proposed
spades or result in the destruction or
adverse modification of the proposed
critical habitat at issue. Applicants may
be Involved In these informal
discussions to the greatest extent
p recti cable. During the conference, the
Service will make advisory
recommendations, if any. on ways to
mlnimite or avoid adverse effects. If die
proposed spedes is subsequently listed
or the proposed critical habitat is
designated prior to completion of the
action, the Federal agency must review
the action to determine whether formal
consultation is required.
(d) If requested by the Federal agency
and deemed appropriate by the Service,
the conference may be conducted In
accordance with the procedures for
formal consultation in f 402.14. An
opinion Issued at the conclusion of the
conference may be adopted as the
biological opinion when the spedes Is
listed or critical habitat is designated,
but only if no significant new
information is developed (induding that
developed during the rulemaking
process on the proposed listing or
critical habitat designation) and no
significant changes to the Federal action
are made that would alter die content of
the opinion. An Inddental take
statement provided with a conference
opinion does not become effective
unless the Service adopts the opinion
once the listing is final
(e) The conclusions reached during a
conference and any recommendations
shall be documented by the Service and
provided to the Federal agency and to
any applicant The style and magnitude
of this document will vary with the
complexity of the conference. If formal
consultation also is required for a
particular action, then the Service will
provide the results of the conference
with the biological opinion.
{402.11 Early consultation.
(a) Purpose. Early consultation is
designed to reduce the likelihood of
conflicts between listed species or
critical habitat and proposed actions
and occurs prior to the filing of an
application for a Federal permit or
license. Although early consultation is
conducted between the Service and the
Federal agency, the prospective
applicant should be involved throughout
the consultation process.
(b) Request by prospective applicant
If a prospective applicant has reason to
believe mat the prospective action may
affect listed spedes or critical habitat it
may request die Federal agency to enter
into eany consultation with the Service.
The prospective applicantlnist certify
in writing to the Federal agency that (1)
it has a definitive proposal outlining the
action and its affects and (2) It intends
to implement its proposal, if authorized.
(c) Initiation of tarty consultation. If
the Federal agency receives the
prospective applicant's certification in
paragraph (b) of this section, then the
Federal agency shall initiate early
consultation with the Service. This
request shall be in writing and contain
the information outlined in 1402.14(c)
and, if the action is a major construction
activity, the biological assessment as
outlined in 1402.12.
(d) Procedures and responsibilities.
The procedures and responsibilities for
early consultation are the same as
outlined in 1402.14(cHJ) for formal
consultation, except that all references
to the "applicant" shall be treated as the
"prospective applicant" and all
references to the "biological opinion" or
the "opinion" shall be treated as the
"preliminary biological opinion" for the
purpose of this section.
(e) Preliminary biological opinion.
The contents and condusions of a
preliminary biological opinion are the
same aa for a biological opinion Issued
after formal consultation except that the
inddental take statement provided with
a preliminary biological opinion does
not constitute authority to take listed
spedes.
(f) Confirmation of preliminary
biological opinion as final biological
opinion. A preliminary biological
opinion may be confirmed as a
-------
19960
Federal Register / Vol. 51. No. 106 / Tuesday, {une 3,1986 / Rules and Regulations
biological opinion issued after formal
consultation if the Service reviews the
proposed action and finds that there
have been no significant changes in the
action as planned or in the information
used during the early consultation. A
written request for confirmation of the
preliminary biological opinion should be
submitted after the prospective
applicant applies to the Federal agency
for a permit or license but prior to the
issuance of such permit or license.
Within 45 days of receipt of the Federal
agency's request the Service shall
either (1) confirm that the preliminary
biological opinion stands as a final
biological opinion: or (2) if the findings
noted above cannot be made, request
that the Federal agency initiate formal
consultation.
9402.12 BMogtert —easmnta.
(a) Purpose. A biological assessment
shall evaluate the potential effects of the
action on listed and proposed species
and designated and proposed critical
habitat and determine whether any such
species or habitat are likely to be
adversely affected by the action and is
used in determining whether formal
consultation or a conference is
necessary.
(b) Preparation requirement (1) The
procedures of this section are required
for Federal actions that are "major
construction activities"; provided that a
contract for construction was not
entered into or actual construction was
not begun on or before November 10,
1978. Any person, including those who
may wish to apply for an exemption
from section 7(a)(2) of the Act may
prepare a biological assessment under
the supervision of the Federal agency
and in cooperation with the Service
consistent with the procedures and
requirements of this section. An
exemption from the requirements of
section 7(a)(2) is not permanent unless a
biological assessment has been
prepared.
(2) The biological assessment shall be
completed before any contract for
construction is entered into and before
construction is begun.
(c) Request for information. The
Federal agency or the designated non-
Federal representative shall convey to
the Director either (1) a written request
for a list of any listed or proposed
species or designated or proposed
critical habitat that may be present in
the action area; or (2) a written
notification of the species and critical
habitat that are being included in the
biological assessment
(d) Director's response. Within 30
days of receipt of the notification of. or
the request for, a species list, the
Director shall either concur with or
revise the list or, in those cases where
no list has been provided, advise the
Federal agency or the designated non-
Federal representative in writing
whether, based on the best scientific
and commercial data available, any
listed or proposed species or designated
or proposed critical habitat may be
present in the action area. In addition to
listed and proposed species, the Director
will provide a list of candidate species
that may be present in the action area.
Candidate species refers to any species
being considered by the Service for
listing as endangered or threatened
species but not yet the subject of a
proposed rule. Although candidate
species have no legal status and are
accorded no protection under the Act
their inclusion will alert the Federal
agency of potential proposals or listings.
(1) If the Director advises that no
listed species or critical habitat may be
present the Federal agency need not
prepare a biological assessment and
further consultation is not required. If
only proposed species or proposed
critical habitat may be present in the
action area, then the Federal agency
must confer with the Service if required
under §402.10. but preparation of a
biological assessment is not required
unless the proposed listing and/or
designation becomes final
(2) If a listed species or critical habitat
may be present in the action area, the
Director will provide a species list or
concur with the species list provided.
The Director also will provide available
infsrmation (or references thereto)
regarding these species and critical
habitat and may recommend
discretionary studies or surveys that
may provide a better information base
for the preparation of an assessment
Any recommendation for studies or
surveys is not to be construed as the
Service's opinion that the Federal
agency has failed to satisfy the
information standard of section 7(a)(2)
of the Act
(e) Verification of current accuracy of
species list If the Federal agency or the
designated non-Federal representative
does not begin preparation of the
biological assessment within 90 days of
receipt of (or concurrence with) the
species list the Federal agency or the
designated non-Federal representative
must verify (formally or informally) with
the Service the current accuracy of the
species list at the time the preparation
of the assessment is begun.
(f) Contents. The contents of a
biological assessment are at the
discretion of the Federal agency and
will depend on the nature of the Federal
action. The following may be considered
for inclusion:
(1) The results of an on-site inspection
of the area affected by the action to
determine if listed or proposed species
are present or occur seasonally.
(2) The views of recognized experts on
the species at issue.
(3) A review of the literature and
other information.
(4) An analysis of the effects of the
action on the species and habitat,
including consideration of cumulative
effects, and the results of any related
studies.
(5) An analysis of alternate actions
considered by the Federal agency for the
proposed action.
(g) Incorporation by reference. If a
proposed action requiring the
preparation of a biological assessment is
identical or very similar, to a previous
action for which a biological assessment
was prepared, the Federal agency may
fulfill the biological assessment
requirement for the proposed action by
incorporating by reference the earlier
biological arffeessment pins any
supporting data from other documents
that are pertinent to the consultation,
into a written certification that
(1) The proposed action involves
similar impacts to the same species in
the same geographic area;
(2) No new species have been listed or
proposed or no new critical habitat
designated or proposed for the action
area; and
(3) The biological assessment has
been supplemented with any relevant
changes in information.
(h) Permit requirements. If conducting
a biological assessment will involve the
taking of a listed species, a permit under
section 10 of the Act (16 U.S.C. 1539) and
Part 17 of this Title (with respect to
species under the Jurisdiction of the
FWS) or Parts 220,222, and 227 of this
Title (with respect to species under the
jurisdiction of the NMFS) is required.
(i) Completion time. The Federal
agency or the designated non- Federal
representative shall complete the
biological assessment within 180 days
after its initiation (receipt of or
concurrence with the species list) unless
a different period of time is agreed to by
the Director and the Federal agency. If a
permit or license applicant is involved,
the 180-day period may not be extended
unless the agency provides the
applicant before the close of the 180-
day period, with a written statement
setting forth the estimated length of the
proposed extension and the reasons
why such an extension is necessary.
(j) Submission of biological
assessment. The Federal agency shall
-------
Federal Register / Vol. 51. No. 106 / Tuesday, fune 3. 1986 / Rules and Regulation*
1 I
submit the completed biological
assessment to the Director for review.
The Director will respond in writing
within 30 days as to whether or not he
concurs with the of the
biological assessment At the option of
the Federal agency, formal consultation
may be initiated under {402.14(c)
concurrently with the submission of the
assessment
(k ).Use of the biological assessment
(1) "Hie Federal agency shall use the
biological assessment in determining
whether formal consultation or a
conference is required under J402.14 or
S 402.10, respectively. If the biological
assessment indicates that there are no
listed species or critical habitat present
that are likely to be adversely affected
by the action and the Director concurs
as specified in paragraph (J) of this
section, then formal consultation is not
required. If the biological assessment
indicates that the action is not likely to
jeopardize the continued existence of
proposed species or result in the
destruction or adverse modification of
proposed critical habitat and die
Director concurs, then a conference Is
not required.
(2) Trie Director may use the results of
the biological assessment in (i)
determining whether to request the
Federal agency to initiate formal
consultation or a conference, (ii)
formulating a biological opinion, or (iii)
formulating a preliminary biological
opinion.
} 402.13 Informal consuWaMon.
(a) Informal consultation is an
optional process that includes all
discussions, correspondence, etc.,
between the Service and the Federal
agency or the designated non-Federal
representative, designed to assist the
Federal agency in determining whether
formal consultation or a conference is
required. If during informal consultation
it is determined by the Federal agency,
with the written commence of the .
Service, that the action is not likely to
adversely affect listed species or critical
habitat the consultation process is
terminated, and no further action is
necessary.
(b) During informal consultation, the
Service may suggest modifications to the
action that the Federal agency and any
applicant could implement to avoid the
likelihood of adverse effects to listed
species or critical habitat
{ 402.14 Formal consultation.
(a) Requirement for formal
consultation. Each Federal agency shall
review its actions at the earliest
possible time to determine whether any
action may affect listed species or
critical habitat If such a determination
is made, formal consultation is required,
except as noted in paragraph (b) of this
section. The Director may request a
Federal agency to enter into
consultation if he identifies any action
of that agency that may affect listed
species or critical habitat and for which
there has been no consultation. When
such a request is made, the Director
shall forward to the Federal agency a
written explanation of the basis for the
request
(b) Exceptions. (1) A Federal agency,
need not initiate formal consultation if.
as a result of the preparation of a
biological assessment under {402.12 or
as a result of informal consultation with
the Service under {402.13, the Federal
agency determines, with the written
concurrence of the Director, that the
proposed action is not likely to
adversely affect any listed species or
critical habitat
(2) A Federal agency need not initiate
formal consultation if a preliminary
biological opinion, issued after eariy
consultation under f402.11. is confirmed
as the final biological opinion.
(c) Initiation of formal consultation. A
written request to initiate formal
consultation shall be submitted to the
Director and shall include:
(1) A description of the action to be
considered:
(2) A description of the specific area
that may be affected by the action:
(3) A description of any listed species
or critical habitat that may be affected
by the action:
(4) A description of the manner in
which the action may affect any listed
species or critical habitat and an
analysis of any cumulative effects;
(5) Relevant reports, including any
environmental impact statement
environmental assessment, or biological
assessment prepared: and
(0) Any other relevant available
information on the action, the affected
listed species, or critical habitat
Formal consultation shall not be
initiated by the Federal agency until any
required biological assessment has been
completed and submitted to the Director
in accordance with (402.12. Any request
for formal consultation may encompass,
subject to the approval of die Director, a
number of similar Individual actions
within a given geographical area or a
segment of a comprehensive plan. This
does not relieve the Federal agency of
the requirements for considering the
effects of the action as a whole.
(d) Responsibility to provide best
scientific and commercial data
available. The Federal agency
requesting formal consultation shall
provide the Service with the best
scientific and commercial data available
or which can be obtained during the
consultation for an adequate review of
the effects that an action may have upon
listed species or critical habitat This
information may include the results of
studies or surveys conducted by the
Federal agency or the designated non-
Federal representative. The Federal
agency shall provide any applicant with
the opportunity to submit Information
for consideration during the
consultation.
(e) Duration and extension of formal
consultation. Formal consultation
concludes within 90 days after its
initiation unless extended as provided
below. If an applicant is not involved,
the Service and the Federal agency may
mutually agree to extend the
consultation for a specific time period. If
an applicant is involved, the Sendee and
the Federal agency may mutually agree
to extend the consultation provided that
the Service submits to the applicant
before the does of the AO days, a writt*:
statement setting forth:
(1) The reasons why a longer period is
required.
(2) The information that Is required tp
completa the consultation, and
(3) The estimated date on wbkb the
consultation will be completed.
A consultation involving an applicant
cannot be extended for more than 60
days without the consent of the
applicant Within 46 days after
concluding formal consultation, the
Service shall deliver a biological opinion
to the Federal agency and any applicant
(f) Additional data. When the Service
determines that additional data would
provide a better information base from
which to formulate a biological opinion,
the Director may request an extension of
formal consultation and request that the
Federal agency obtain additional data to
determine how or to what extent the
action may affect listed species or
critical habitaL If formal consultation is
extended by mutual agreement
according to 8402.14(e), the Federal
agency shall obtain, to the extent
practicable, that data which can be
developed within the scope of the
extension. The responsibility for
conducting and funding any studies
belongs to the Federal agency and the
applicant not the Service. The Service's
request for additional data is not to be
construed as the Service's opinion that
the Federal agency has foiled to satisfy
the information standard of section
7(a)(2) of the Act If no extension of
formal consultation is agreed to, the
Director will issue a biological opinion
-------
19962 Federal Register / Vol. 51. No. 106 / Tuesday. )une 3. 1966 / Rule3 and Regulations
using the best scientific and commercial
data available.
(g) Service responsibilities. Service
responsibilities during formal
consultation are as follows:
(1) Review all relevant information
provided by the Federal agency or
otherwise available. Such review may
include an on-site inspection of the
action area with representatives of the
Federal agency and the applicant.
(2) Evaluate the current status of the
listed species or critical habitat
(3) Evaluate the effects of the action
and cumulative effects on the listed
species or critical habitat
(4) Formulate its biological opinion as
to whether the action, taken together
with cumulative effects, is likely to
jeopardize the continued existence of
listed species or result in the destruction
or adverse modification of critical
habitat
(5) Discuss with the Federal agency
and any applicant the Service's review
and evaluation conducted under
paragraphs (g)(lH3) of this, section, the
basis for any finding in the biological
opinion, and the availability of
reasonable and prudent alternatives (if
a jeopardy opinion is to be issued) that
the agency and the applicant can take to
avoid violation of section 7(a)(2). The
Service will utilize the expertise of the
Federal agency and any applicant in
identifying these alternatives. If
requested, the Service shall make
available to the Federal agency the draft
biological opinion for the purpose of
analyzing the reasonable and prudent
alternatives. The 45-day period in which
the biological opinion must be delivered
will not be suspended unless the Federal
agency secures the written consent of
the applicant to an extension to a
specific date. The applicant may request
a copy of the draft opinion from the
Federal agency. All comments on the
draft biological opinion must be
submitted to the Service through the
Federal agency, although the applicant
may send a copy of its comments
directly to the Service. The Service will
not issue its biological opinion prior to
the 45-day or extended while
the draft is under review by the Federal
agency. However, if the Federal agency
submits comments to the Service
regarding the draft biological opinion
within 10 days of the deadline for
issuing the opinion, the Service is
entitled to an automatic 10-day
extension on the deadline.
(6) Formulate discretionary
conservation recommendations, if any.
which will assist the Federal agency in
reducing or eliminating the impacts that
its proposed action may have on listed
species or critical habitat.
(7) Formulate a statement concerning
incidental take, if such take may occur.
(8) In formulating its biological
opinion, any reasonable and prudent
alternatives, and any reasonable and
prudent measures, the Service will use
the best scientific and commercial data
available and will give appropriate
consideration to any beneficial actions
taken by the Federal agency or
applicant, including any actions taken
prior to the initiation of consultation.
(h) Biological opinions. The biological
opinion shall include:
(1) A summary of the information on
which the opinion is based;
(2) A detailed discussion of the effects
of the action on listed species or critical
habitat and
(3) The Service's opinion on whether
the action is likely to jeopardize the
continued existence of a listed species
or result in the destruction or adverse
modification of critical habitat (a
"jeopardy biological opinion"); or, the
action is not likely to jeopardize the
continued existence of a listed species
or result in the destruction or adverse
modification of critical habitat (a "no
jeopardy" biological opinion). A
"jeopardy" biological opinion shall
include reasonable and prudent
alternatives, if any. If the Service is
unable to develop such alternatives, it
will indicate that to the best of its
knowledge there are no reasonable and
prudent alternatives.
(i) Incidental take. (1) In those cases
where the Service concludes that an
action (or the implementation of any
reasonable and prudent alternatives)
and the resultant incidental take of
listed species will not violate section
7(a)(2), the Service will provide with the
biological opinion a statement
concerning incidental take that
(1) Specifies the impact i.e.. the
amount or extent of such incidental
taking of the species;
(ii) Specifies those reasonable and
prudent measures that the Director
considers necessary or appropriate to
minimize such impact
(iii) Sets forth the terms and
conditions (including, but not limited to,
reporting requirements) that must be
complied with by the Federal agency or
any applicant to implement the
measures specified under (ii) above; and
(iv) Specifies the procedures to be
used to handle or dispose of any
individuals of a species actually taken.
(2) Reasonable and prudent measures,
along with the terms and conditions that
implement them, cannot alter the basic
design, location, scope, duration, or
timing of the action and may involve
only minor changes.
(3) In order to monitor the impacts of
incidental take, the Federal agency or
any applicant must report the progress
of the action and its impact on the
species to the Service as specified in the
incidental take statement. The reporting
requirements will be established in
accordance with 50 CFR 13.45(FWS) and
222.23(d)(NMFS).
(4) If during the course of the action
the amount or extent of incidental
taking, as specified under paragraph
(i)(l)(i) of this Section, is exceeded, the
Federal agency must reinitiate
consultation immediately.
(j) Conservation recommendations.
The Service may provide with the
biological opinion a statement
containing discretionary conservation
recommendations. Conservation
recommendations are advisory and are
not Intended to cany any binding legal
force.
(k) Incremental step*. When the
action is authorized by a statute that
allows the agency to take incremental
steps toward the completion of the
action, the Service shall if requested by
the Federal agency, issue a biological
opinion on the incremental step being
considered, including its views on the
entire action. Upon the issuance of such
a biological opinion, the Federal agency
may proceed with or authorize the
incremental steps of the action if:
(1) The biological opinion does not
conclude that the incremental step
would violate section 7(a)(2);
(2) The Federal agency continues
consultation with respect to the entire
action and obtains biological opinions,
as required, for each incremental step;
(3) The Federal agency fulfills its
continuing obligation to obtain sufficient
data upon which to base the final
biological opinion on the entire action;
(4) The incremental step does not
violate section 7(d) of the Act
concerning irreversible or irretrievable
commitment of resources; and
(5) There is a reasonable likelihood
that the entire action will not violate
section 7(a)(2) of the Act
(1) Termination of consultation, (l)
Formal consultation is terminated with
the issuance of the biological opinion.
(2) If during any stage of consultation
a Federal agency determines that its
proposed action is not likely to occur,
the consultation may be terminated by
written notice to the Service.
(3) If during any stage of consultation
a Federal agency determines, with the
concurrence of the Director, that its
proposed action is not likely to
adversely affect any listed species or
critical habitat the consultation is
terminated.
-------
Federal Register / Vol. 51. No. 106 / Tuesday. June 3,1988 / Rules and Regulations 19963
S402.15 RmpoimMMm ef Fadaral
agency Mowing Issuance of a Motojlcal
opMon.
(a) Following the issuance of a
biological opinion, the Federal agency
shall determine whether and in what
manner to proceed with the action in
light of its section 7 obligations and the
Service's biological opinion.
(b) If a jeopardy biological opinion is
issued, the Federal agency shall notify
the Service of its final decision on the
action.
(c) If the Federal agency determines
that it cannot comply with the
requirements of section 7(a)(2) after
consultation with the Service, it may
apply for an exemption. Procedures for
exemption applications by Federal
agencies and others are found in SO CFR
Part 451.
(402.16 BstnMaMon of formal
coraunraoii
Reinitiation of formal consultation is
required and shall be requested by the
Federal agency or by the Service, where
discretionary Federal involvement or
control over the action has been
retained or is authorized by law and:
(a) If the amount or extent of taking
specified in the incidental take
statement is exceeded:
(b) If 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;
(c) If 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 biological opinion: or
(d) If a new species is listed or critical
habitat designated that may be affected
by the identified action.
Dated: December 12.1905.
William P. Horn.
Assistant Secretary for Fish and Wildlife and
Parks.
Dated: January 3a 1980.
Wllliaa G. Gefdoo,
Assistant Administrator for Fisheries,
National Oceanic and Atmospheric
Administration.
[FR Doc. 88-10500 Filed 0-66; 8:45 am]
¦WMO 0001 M1HHI
-------
Friday
September 29, 1989
Part X
Department of the Interior
Fish and Wildlife Service
Department of Commerce
National Oceanic and Atmospheric
Administration
50 CFR Parts 18, 228, and 402
Incidental Take of Endangered,
Threatened and Other Depleted Marine
Mammals; Rule
-------
40338 Federal Register / Vol. 54, No. 188 / Friday. September 29. 1989 / Rules and Regulations
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 18,228, and 402
RIN 101S-ABOS
Incidental Take of Endangered,
Threatened and Other Depleted Marine
Mammals
AGENCIES: Fish and Wildlife Service
(FWS), Interior; National Marine
Fisheries Service (NMFS). NOAA,
Commerce.
ACTiOfC Final rule.
summary: Regulations are issued to
implement amendments enacted in 1986
to the Marine Mammal Protection Act of
1972 (MMPA) and Endangered Species
Act of 1973 (ESA). These amendments
provide a mechanism for allowing
certain takings of endangered,
threatened and other depleted marine
mammals incidental to activities other
than commercial fishing operations.
Previously, the incidental taking of
depleted marine mammals was not
allowable under the terms of the MMPA.
This rule amends existing procedures
governing incidental take
authorizations.
effective date: October 30,1989.
FOR FURTHER INFORMATION CONTACT:
Patricia Montanio, Protected Species
Management Division. Office of
Protected Resources and Habitat
Programs. National Marine Fisheries
Service, 1335 East-West Highway, Silver
Spring. MD 20910, 301-427-2322, or
Robert Peoples. Division of Fish and
Wildlife Management Assistance. U.S.
Fish and Wildlife Service. Department
of the Interior, Mail Stop—820 Arlington
Square, 18th and C Streets, NW..
Washington. DC 20240,703-358-1718.
supplementary INFORMATION: Proposed
regulations on the Incidental Take of
Endangered. Threatened and Other
Depleted Marine Mammals were
published on March 15,1988 (53 FR
8473-8477). The original May 18 close of
the comment period was extended until
July 5.1988 (53 FR 17984-17985). More
than 20 entities, including conservation
groups. Federal, state and local
government agencies, private industry
and other interested parties commented
on the proposed rule. These comments
are summarized along with responses in
the discussions below.
General Requirements and Processes
FWS and NMFS share responsibilities
under the MMPA (16 U.S.C., 1381 et seg.)
and ESA (18 U.S.C. 1531 et seq.). NMFS
is responsible for species of the order
Cetacea (whales and dolphins) and the
suborder Pinnipedia (seals and sea
lions) except walrus. FWS is responsible
for the dugong, manatees, polar bear,
sea and marine otters and walrus.
Depending on the animals involved, the
term "Service" used in this document
may refer to FWS and/or NMFS.
Section 101(a)(5) of the MMPA allows
for the taking of marine mammals
incidental to non-commercial fishing
activities under certain circumstances;
Section 7(b)(4) of the ESA allows, under
certain circumstances; for the taking of
endangered and threatened species
incidental to activities that have Federal
involvement or control. If a marine
mammal species is listed as endangered
or threatened under the ESA. the
requirements of both the MMPA and
ESA must be met before the incidental
take can be allowed.
Summary of Amendments
Prior to amendment section 101(a)(5)
of the MMPA applied only to non-
depleted species. Under section 3(1)(C)
of the MMPA. all endangered and
threatened marine mammals are by
definition depleted. Since the more
restrictive provisions of the MMPA
prevail, the ESA provisions alone could
not be used to authorize the incidental
taking of endangered or threatened
marine mammals.
Public Law 99-859, title IV, section 411
(approved November 14.1988) amended
section 101(a)(5) of the MMPA and made
conforming changes to sections 7(b)(4)
and 7(o) of the ESA. The primary change
was to allow the taking of depleted aB
well as non-depleted species of marine
mammals incidental to specified
activities (other than commercial fishing
operations) under certain conditions,
liie amendments also changed some of
the conditions under which incidental
taking can be allowed.
General Comment: One commenter
believed that there should not be any
taking, hunting or killing of endangered,
threatened or depleted species.
Under the 1988 Amendments.
Congress provides an exception for the
incidental but not intentional taking of
small numbers of depleted marine
mammals under limited circumstances.
Although we anticipate most taking to
be by harassment only, the amendment
is not limited to non-lethal takings.
MMPA—Section 101(a)(5) Process
Under sections 101(a)(5) of the
MMPA. the Service can allow the taking
of small numbers of marine mammals
incidental to a specified activity (other
than commercial fishing) within a
specified geographical area. For the
Service to consider allowing an
incidental taking, a written request for
specific regulations must be submitted
to the Sen/ice containing detailed
information on the activity as a whole
and impacts of the total potential take.
The Service will evaluate the impacts
resulting from all persons conducting the
specified activity, not just the impacts
from one entity's activities. If the
Service makes certain findings, specific
regulations will be issued that, among
other things, establish permissible
methods of taking and other means of
effecting the least practicable adverse
impact on the species. After regulations
are issued, individual Letters of
Authorization must be obtained from the
Service by those conducting the activity.
Procedural regulations implementing
this provision of the MMPA are found at
50 CFR 1&27 for FWS and at 50 CFR
part 228 for NMFS.
Processing time: In the preamble to
the proposed rule, the Service advised
requestors that the regulatory process
for specific regulations can take a year
or more. Many commenters believed this
to be excessive resulting in unnecessary
time and financial costs to applicants
and delayed the identification and
development of hydrocarbon resources.
Further, two commenters believed that
the lengthy review process does not
account for the urgency of some
situations, such as platform removals for
safety or reuse purposes, or operational
constraints due to weather and ice
conditions in Alaska. They argued that
Congress intended that the Service act
expeditiously on requests.
The Service will complete the process
as quickly as possible and will provide
the applicant with a proposed schedule,
if requested. Although regulations have
been issued in as little as six months,
the process generally takes longer
because of the time necessary to
complete the environmental and
regulatory reviews and provide an
opportunity for public comment on the
proposed nile. Therefore, the Service
believes one year is a realistic estimate.
Knowing the potential time
requirements, applicants can plan their
activities accordingly. Since the MMPA
process can be conducted
simultaneously with other requirements,
early initiation of the MMPA process
will avoid delaying approval and
implementation of specific activities.
Once regulations are established
governing a specific activity, Letters of
-------
Federal Register / Vol. 54, No. 188 / Friday, September 29, 1989 / Rules and Regulations 40339
Authorization can be issued quickly and
can accommodate specific urgencies.
Comment Periods: Under 50 CFR
225.4(b), NMFS publishes a notice of
receipt of request for regulations and
solicits information. Public comments
are also accepted on the proposed
findings and regulations. The FWS, on
the other hand, does not require
publication of a notice of receipt of
request and generally solicits comments
only on its proposed findings and
regidations (50 CFR l&27(d)(2)). This is
the only difference between NMFS and
FWS processes, which is relatively
minor reflecting standard agency
procedures. Some commentera opposed
the initial comment period established
by NMFS since it is not mandated under
the MMPA or Administrative Procedure
Act and could delay issuance of final
regulations.
The NMFS approach is consistent
with its general approach to
regulations—providing the public with
an advance notice of a rulemaking
where possible. The NMFS believes that
the first comment period facilitates
gathering all available information prior
to developing the required regulatory
and environmental analyses and
publishing a proposed rule. No minimum
time for the initial comment period is
established in the NMFS regulations.
Therefore, in unusual or critical
situations, this comment period could be
less than the usual 30 days. In addition,
drafting the required environmental and
regulatory documents could begin during
the comment period, resulting in no
significant delay to the process.
Application assistance: Commenters
suggested that applicants be encouraged
to consult with the Service in preparing
a request to identify sources of
information and to ensure an adequate
request
The Service agrees, but does not
believe that this needs to be stated in
the regulations. The Service will assist
potential applicants by explaining
requirements and identifying sources of
information. Potential applicants are
encouraged to contact the Service and
the Service's Regional Offices for
assistance.
Completeness of request One
commenter believed that the Service
should be required to determine the
completeness of a request within 15
days. If found incomplete, the Service
would notify the applicant with an
explanation of what is required to make
the request complete.
The Service will review requests and
notify applicants as soon as practicable
of any additional information required.
However, information needs (such as
the feasibility of implementing certain
mitigating measures) may become
apparent anytime during the regulatory
process. Therefore, the Service reserves
the option to request additional
information when required, rather than
just within the first 15 days.
Denial of requests: Some commentera
believed that the regulations should
require that denials of requests for
specific regulations along with the
findings in support of that decision be
published and made available to the
applicant
The Service agrees and has added
new Sgl&27(d)(4) and 228.4(d) requiring
publication in the Federal Register of
any decision to deny a request along
with the basis for denying the request
Required information: One
commenter believed that the
information required in (18£7(d) (vi).
(vii) and (viii) and { 228.4(a) (9), (10) and
(11) dealing with suggested means of
mitigating and monitoring impacts
should be optional since these
discussions would be more productive
after the applicant has an opportunity to
consult with the Service and subsistence
users.
The Service believes the applicant
should be required to identify mitigating
measures and ways to monitor impacts
to assist the Service in developing the
most workable regulations. Hie
applicant's detailed knowledge of the
proposed activity provides a good basis
for such initial proposals. Including
these suggestions for comment and
further discussion as the process
continues will serve to enhance and
facilitate the process of developing
regulations. Therefore, the Service has
retained these questions.
Total impacts: One commenter
believed that the current reference to
"cumulative" impacts in the information
required under {{18£7(d) and 228.4
should be deleted.
As used in these sections, cumulative
impacts was intended to mean the total
impacts resulting from the activity as a
whole, not just the impacts resulting
from one individual's or company's
participation. It was not intended to
mean the impacts resulting from the
activity in conjunction with unrelated
ongoing or prpjected activities (as the
term is used under NEPA). Therefore,
the word cumulative has been deleted
and the sentence clarified to request
information on the "activity as a whole,
which Includes, but is not limited to, an
assessment of total impacts by all
persons conducting the activity." (See
also "Cumulative Impacts" discussion
below.)
Burden of proof: In the preamble to
the proposed rule, the Service stated
that the applicant has the burden to
demonstrate, through the best scientific
information available, that only a
negligible impact is reasonably likely to
occur. Commentera suggested that only
the best presently available, readily
obtainable information should be
required in requests, and that applicants
should not be required to conduct
research if information gaps exist.
Commentera also objected to the
applicant having the burden to
demonstrate negligible impact, and
believed it is the responsibility of the
Service.
In response to the commentera'
concerns, the Service notes that its "best
available scientific evidence" standard
used to determine the completeness of a
request in the MMPA regulations is
similar to the "best available scientific
and commercial data" standard that is
used in the Section 7 (ESA) consultation
regulations. Therefore, the Service
intends to use the principles described
in the following excerpt from the
preamble to the consultation regulations
when additional data is needed to
complete a request for specific
regulations under this final rule:
A Service request for additonal data will
no* be used as a vehicle for burdening
applicants with unnscataaiy studies and
inordinate deleys * * *. As in the Pittston
case [Roosevelt Campobello International
Park Commission v. EPA 6M F2d 1041 (1st
Cir. 1982)], these requirements will be limited
to readily obtainable data that would assist
the Service in formulating its biological
opinion (under Section 7(b) of the ESA) * * *
[A]i in Pittston, a distinction must be made
between request! for special research
projects and requests for routine, customary
data collection activities.
51FR19928,19952 (June 3,1988).
Only the best available information
needs to be submitted with a request,
and conducting research is not a
requirement The Service believes it is
the responsibility of the applicant to
provide the required information and to
demonstrate negligible impact since the
applicant is requesting authority to take
the marine mammals and is the
beneficiary of such authority. The
Service will also consider information
submitted by other interested parties or
otherwise available. If the information
submitted by the applicant together with
any other information available to the
Service is not sufficient to support a
negligible impact finding, regidations
cannot be issued. In this case, additional
studies may be needed to support a
negligible impact finding.
It should also be noted that Congress
placed a continuing burden on those
operating under the authority of Section
101(a)(5) to "engage in appropriate
-------
40340 Federal Register / Vol. 54. No. 183 / Friday, September 29, 1989 / Rules and Regulations
research designed to reduce the
incidental taking of marine mamir.sis
pursuant to the specified activity
concerned." H.R. Rep. No. 228.97th
Cong.. 1st Sess. 20 (1981).
Placing the burden on the applicant to
demonstrate negligible impact is
consistent with other take
authorizations under the MMPA. Under
Section 104(d)(3). permit applicants
"must demonstrate to the Secretary that
the taking * * * will be consistent with
the purposes of this Act and the
applicable regulations established under
section 103 of this title." In the 1971
House Report Congress explained this
basic concept
Before any mannp msnmal may be |n^prt
the appropriate Secretary must first establish
general limitations on the taking, and must
issue a permit which would allow that taking.
In every case, the burden is placed upon
those seeking permits to show that the taking
should be allowed and will not work to the
disadvantage of the species or stock of
animals involved. If that burden is not
carried—and it is by no means a light
burden—the permit may not be issued. The
effect of this set of requirements is to insist
that the management of the *"™i
populations be carried out with the interests
of the animals as the prime consideration.
H.R. Rep. No. 707,92d Cong., 1st Sess. 18
(1971).
US. Citizen: As stated in the
preamble to the proposed rcle, under
section 101(a)(5) of the MMPA only U.S.
citizens are eligible to apply for Letters
of Authorization. Commenters believed
that the definition of U.S. citizens in the
regulations is unduly restrictive since it
requires that companies or corporations
be controlled by U.S. citizens.
Commenters pointed out that this is
inconsistent with regulatory practice
under the Outer Continental Shelf Lands
Act (OCSLA) which requires only that
the company be organized under the
laws of the United States to be
considered a U.S. citizen. Commenters
believed that Congress intended that all
holders of offshore leases be eligible for -
a small take authorization under the
MMPA. and. therefore, die MMPA
regulatory definition should be made
consistent with the OCSLA definition.
The Service a^ees that a change in
the definition may be appropriate.
However, since this change was not
discussed in the proposed rule and is a
potentially significant modification, the
Service is addressing this issue in a
separate proposed rulemaking to avoid
delay in publication of this final rule.
That proposed rale was published in the
Federal Register an August 17,1089 (54
FR 33949).
Impact on Species or Stock
Before the Service may allow a taking
of marine mammals under the authority
of section 101(a)(5) of the MMPA, it
must find that the total taking expected
from the specified activity will have a
negligible impact on the species or
stock. After a thorough review of the
public comments on this issue, the
Service adopts its proposed definition of
"negligible impact"
Under the Service's regulatory
definition, a finding of negligible impact
would require that the impact resulting
from the specified activity cannot
reasonably be expected to. and is not
reasonably likely to. adversely affect the
species or stock through effects on
annual rates of recruitment or survival
The Service believes that this definition
of negligible impact follows
congressional intent when enacting
Public Law 99-659.
Effects on annual rates of recruitment
or survival- Several commenters
contended that the proposed definition
of negligible impact was too lenient
because it suggested that only effects on
annual rates of recruitment or survival
will be considered. The commenters
urged the Service to add back to the
definition the standards used to
determine negligible impact under the
1981 MMPA Amendments—that the
impact from the taking had to be "so
small, unimportant or of so little
consequence as to warrant little or no
attention." 50 CFR 228J (1987) (NMFS
regulations); accord, id. i I637{c) (FWS
regulations).
The Service, while sympathetic with
the concerns expressed by the
commentere. believes that the clear
congressional intent behind the 1388
Amendments was to »ltw the standard
for determining negligible impact In
addition, the basic amendment to
section 101(a)(5) of the MMPA expanded
the coverage of this incidental take
provision to depleted as well as non-
depleted 8pedes, requiring a
corresponding change in the approach to
assessing negligible impact To capture
the Intent of the amendment the Service
has adopted, substantially without
change, the definition of negligible
impact set out in the Senate's "Section-
by-Section Analysis," 132 Cong. Rec.
S16305 (Oct 15,1966).
Species specific factors/indirect
effects: Several commenters noted that
the factors analyzed to understand the
expected impacts will vary widely from
spades to species. They also stated that
a complete assessment of effects must
cover the full range of factors that
support recruitment and survival,
including an assessment of indirect
effects on habitat behavioral patterns,
breeding and feeding, and special
management considerations [e.g.,
impacts on recovery plan objectives or
other management initiatives).
The Service agrees with these
comments. Although the 1986
Amendments deieted the reference to
"habitat" from the determination of
negligible impact the stated reason for
this change confirms that the factors
indicated by the commenters, such as
effects on habitat remain important in
the assessment of negligible impact:
A minor impact upon a small segment of
habitat might be found to be more than
negligible under the prior standard, even if it
has no impact upon the overall population
utilizing the habitat But it Is also the case
that populations could be affected
a [diversely by actions that damage rookeries,
mating grounds, feeding areas and areas of
similar significance. The Secretary shall take
those impacts into accounts (sic) when
making a "negligible impact" determination
under section 106(A)(5)(i) (s/c). Because these
factors are to be taken into account in
making such a determination, subparagraph
(a)(2)(A) of this section deletes the phrase
"and its habitat" bom subparagraph 5(A)(i)
(i/'c) of the MMPA.
132 Cong. Rec. S16305 (Oct 15.1986).
The Service does not believe that it is
necessary to amend the regulatory
language to reflect the above factors; it
is sufficient to note that the Service will
consider these factors when determining
negligible impact
Impact on optimum sustainable
population (OSP): An OSP
determination is not required to make a
negligible impact finding. In the
preamble of the proposed rule, the
Service provided some illustrative
examples of how the negligible impact
test would be applied depending on
whether the particular marine mammal
stock was within or below its OSP
range. 53 FR 8473,8474 (Mar. 15.1988).
Citing the management goal of the
MMPA—the maintenance or attainment
of an OSP level for each population
stock of marine mammals (see sections
2(2) and 2(6) of the MMPA)—the Service
set out the following general analytical
framework for applying the definition of
negligible impact
If a request for specific regulations under
section 101(a)(5) involves potential impacts to
a "depleted" population, then a
determination of negligible impact can be
made only if the permitted activities are not
likely to significantly reduce the increase of
that population or prevent it from ulumately
achieving its OSP; on the other hand, if a
"r.andepleted" population is involved, then a
determination of negligible impact can be
made only if the permitted activities are not
likely to reduce that population below i is
OSP.
-------
Federal Register / Vol. 54. No. 188 / Friday. September 29. 1989 / Rules and Regulations 40341
53 FR at 6474. The Service provided this
proposed analytical framework to elicit
public comment so that the final rule
could more fully explore the application
of the negligible impact test Since these
examples attracted a wide spectrum of
views on the basic meaning of the 1986
Amendments and negligible impact the
Service will now clarify the analytical
approach it will follow in making this
essential rinding.
Several commenters, citing the
complex and controversial nature of the
OSP concept asserted that OSP should
not be used as the framework for
determining negligible impact especially
since no mention is made in section
101(a)(5) of OSP. Many of the
commenters emphasized that Congress
intended a simplified process that
focused on impacts on annual rates of
recruitment or survival rather than on
impacts to OSP. One commenter argued
that Congress rejected an analytical
approach based on OSP by failing to
pass H.R. 1027,99th Cong* 1st Sess.
(1985). which would have authorized
incidental takes under the MMPA "if the
proposed incidental take would not
impede the species' ability to eventually
attain its optimum sustainable
population." HR. Rept No. 124.99th
Cong.. 1st Sess. 13 (1985).
The Service notes that RR. 1027
would have provided an exception to
the taking prohibitions of both the ESA
and the MMPA through the section 7
consultation process. The rulemaking
process of section 101(a)(5) of the
MMPA would not have been required.
The Service believes that the
congressional choice of imposing an
additional regulatory process before
authorizing the incidental t«Hng 0f
listed marine mammals reflected a
concern for the need for more
safeguards rather than a concern for
simplification.
The Service did not intend, however,
to imply that a formal determination of
OSP was necessary in order to make the
negligible impact finding. Section
10l(a)(5)(C)(ii) of the MMPA clearly
exempts the issuance of specific
regulations from compliance with the
formal'rulemaking requirements of
section 103 of the MMPA. The Service's
factual examples illustrating a pro posed
analytical framework for the
determination of negligible impact did
not involve the formal determination of
OSP. The first example involved
depleted populations and how impacts
to recruitment rates and survival would
be treated: an OSP determination was
not needed because one need only
establish that the total take would not
"significantly reduce the increase of that
population" and would not prevent
ultimate achievement of OSP. This
conceptual framework for depleted
species focuses on the absence of
"significant" reductions to the rate of
long-term population increases and the
absence of barriers to the attainment of
OSP.
In response to several comments, the
Service notes that the same analytical
framework for depleted species applies
to stocks of unknown status, since it is
not OSP that is at issue, but rather that
the incidental taking would not prevent
the population from attaining or
maintaining its OSP.
Therefore, an OSP determination is
not necessary in making a negligible
impact finding. Qualitative judgments
will be made on a case-by-case basis on
how the anticipated incidental taking
will affect the status and population
trends of the species or stocks
concerned. Many factors are used in this
determination, including, but not limited
to, the status of the species or stock
relative to OSP (if known), whether the
recruitment rate for the species or stock
is increasing, decreasing, stable or
unknown, the size and distribution of
the population, and existing impacts and
environmental conditions. -
Several commenters concurred with
the Service's analytical framework for
depleted species, with one commenter
stressing the need to ensure that a
depleted population will increase
toward its OSP at an acceptable rate.
However, one commenter stated that the
Service's approach was not consistent
with section 2(2) of the MMPA. which
mandates that "[fjurther measures
should be immediately taken to
replenish any species or population
Btock which has already diminished
below [its OSP]." Two commenters
argued that the only way to satisfy these
conservation goals of the MMPA is to
establish that the level of incidental take
has only a negligible impact on the rate
of recovery for the species or stock.
Contending that a distinction must be
made among stocks that are increasing,
decreasing, or stable in the level of
recruitment they stated that a negligible
impact should involve effects that do not
impede a stock from achieving OSP at
the same rate and in the same manner
that would occur in the absence of the
proposed incidental take.
The Service agrees that distinctions
need to be made among stocks that are
increasing, decreasing, or stable when
determining negligible impact In order
to make a negligible impact finding, the
proposed incidental take must not
prevent a depleted population from
increasing toward its OSP at a
biologically acceptable rate. Consistent
with this view, the Service believes that
insignificant reductions in the rate of the
population increase (/.e., net
recruitment) do not become significant
impacts on a depleted stock because the
stock would not increase toward its t)SP
as rapidly as it would in the absence of
the incidental take. To adopt the
commenters' formulation, one would
have to find that the impacts of
incidental take have "no effect" on the
rate of population growth for a depleted
stock: i.e., there would be "no effect" on
the stock's "rate of recovery." The
statutory standard does not require that
the same recovery rate be maintained,
rather that no significant effect on
annual rates of recruitment or survival
occurs. For stable or declining
populations, a finding of negligible
impact may be more difficult than for
increasing populations. Section 101(a)(5)
clearly indicates that some level of
adverse effects involving the take of
depleted marine can be
authorized as long as the impact is
"negligible."
The plain language of section2(2}
does not suggest a mora stringent
standard. That section indicates a
concern for the immediate initiation of
steps to replenish a depleted species or
stock—« concern which is addressed in
the Service's analytical framework since
significant reductions in recruitment
rates an not considered negligible.
Further, section 2(2) does not mandate
the immediate ~¦lfing of all steps to
attain an OSP level for all depleted
stocks; such a reading of the purposes
and policies of the MMPA would
displace the clear congressional intent
behind section 101(a)(5), .which was
designed to alleviate conflicts, where
the impacts are negligible, between
activities (other than commercial
fishing) that involve the incidental
talking of marine mammals and the strict
moratorium against taking.
One commenter suggested that a more
appropriate standard for determining
negligible impact for a depleted stock
would be whether the level of incidental
taking is likely to substantially reduce
the rate of population growth. By
substituting "substantial" for the
Service's term "significant" the
commenter argues that statistically
measurable effects would not
necessarily cause an applicant to be
ineligible for a take under section
101(a)(5). The commenter further
recommended that a level of acceptable
take—within the range of 10 to 50
percent of annual recruitment—be
prescribed in the regulations.
-------
40342 Federal Register / VoL 54, No. 188 / Friday. September 29, 1989 / Rules and Regulations
The Service does not share the
commenter's concerns. The absence of
substantial reductions in population
growth does not automatically
correspond with a negligible impact:
significant adverse effects, although not
substantial in nature, can prevent the
Service from finding negligible impact.
Further, the Service declines to
prescribe acceptable taking levels. Such
numerical limits would ignore the .
significant differences in the status and
population dynamics among the various
marine mammal stocks and the type of .
taking (i.e., harassment versus mortality)
or other impacts. The determination of
negligible impact must take into account
the status and the particular biological
requirements of the species or stock, as
well as the effects of the incidental
taking on the rate of recruitment
The second example presented in the
preamble of the proposed rule involved
the determination of negligible impact
with respect to a non-depleted stock of
marine mammals. If a particular stock
were known to be within its OSP range,
then the Service believes a fining 0f
negligible impact can only be made if
the permitted activities are not likely to
reduce that stock below its OSP.
However, not all takings that do not
reduce the population below its OSP
would be considered negligible.
The Service's analytical framework
for non-depleted stocks recognizes that
healthy marine mammal populations
that have reached an equilibrium level
usually experience fluctuations in
population numbers within some normal
range due to a variety of environmental
and biological factors. Such fluctuations
may involve short-term population
declines that do not pose a risk to the
stocks remaining within the limits of
OSP. The Service believes that minimal
impacts on a healthy stock caused by
incidental taking can still be considered
negligible if such taking does not cause
the population to fluctuate beyond
normal limits. In other words, for a
population stock that is at its OSP level
slight impacts on the stock resulting
from incidental take do not rise to the
level of "adverse effects" on annual
rates of recruitment or survival if the
population stock is maintained at
essentially the same leveL
One commenter opposed the Service's
approach to non-depleted stocks by
arguing that it is too permissive.
Contending that the Service's analytical
framework could allow a stock to be
reduced from 95 to 60 percent of
carrying capacity in determining
negligible impact the commenter noted
that such a significant population
decrease would have to be evaluated
through the waiver process in section
101(a)(3) of the MMPA.
"Hie Service agrees that the
commenter's extreme example would
not be eligible for treatment under the
"small take" provisions of section
101(a)(5) of the MMPA; such large takes
should be instead considered under the
waiver procedures in sections 101(a)(3)
and 103 of the MMPA. As explained
above, the key factor is the significance
of the level of impact on rates of
recruitment and survival. Only
insignificant impacts on long-term
population levels and trends can be
treated as negligible.
Several commenters stated that the
Service's "dual standard" for assessing
negligible impact was inappropriate
because Congress intended a uniform
system.
The Service's examples in the
proposed rule were intended to show
how a negligible impact finding might be
approached in different situations. This
is not a dual standard, but instead, the
illustration of how to apply the rule in
contrasting fact situations. Again, the
formal determination of OSP is not a
prerequisite to Issuing specific
regulations.
Cumulative impacts: In determining
impact the Service must evaluate the
"total taking" expected from the
specified activity in a specific
geographic area. The estimate of total
taking involves the accumulation of
impacts from all anticipated activities
that are expected to be covered by the
specific regulations. In other words, the
applicant's anticipated taking from its
own activities is only one part of the
story; the total takings expected from all
persons conducting the activities to be
covered by the regulations must be
determined.
Several commenters asked that the
Service clarify the concept of "total
taking" by amending the definition of
negligible impact
The Service declines to do so because
it believes that the definition of
negligible impact is effective as written
since it clearly states the impacts
"resulting from the specified activity" as
discussed above.
Two commenters asked how to assess
the degree of impacts in the situation
where, although separate activities by
themselves pose negligible impacts, a
combination of impacts poses a
significant impact on the species or
stock.
The Service agrees with the
commenters that the impacts of
incidental take from successive or
contemporaneous activities must be
added to the baseline of existing
impacts to determine negligible iirpact.
While the impacts of a particular
activity may be fairly minor, they may in
fact be more than negligible when
measured against a baseline that
includes a significant existing take of
marine mammals from the other
activities.
Hie commenter believed that the
regulations should identify an order of
priority for various types of taking le g-
subsistence taking and incidental
taking) and describe how allowable
takes will be allocated to each type of
activity. Another commenter argued that
the 1B86 Amendments do not estabish a
priority system for takings, incidental or
intentional.
The Service notes that ongoing
authorized activities are factored into
the baseline of existing impacts to
determine neglif^ble impact of a
requested activity. To the extent that
subsistence is part of the baseline,
subsistence takes are accommodated
and allocation between subsistence and
incidental taking is not necessary.
Some commenters asked the Service
to limit the determination of negligible
impact to direct impacts of the specified
activity and to exclude cumulative
effects resulting from future, unrelated
activities.
As discussed previously, the Service
must look at both direct and indirect
effects, but not the cumulative effects, in
making finitingn under section 101(a)(5)
of the MMPA concerning negligible
impact. The Service will consider
cumulative effects that are reasonably
foreseeable when preparing its analysis
under the National Environmental Policy
Act Additionally, cumulative effects
that are reasonably certain to occur and
"effects of the action" will be
considered in any necessary
consultation under section 7(a)(2) of the
ESA. 50 CFR 402.02.402.14(g) (3). (4)
(1987): 51FR19926.19932-33 (June 3.
1988) (preamble discussion in the
section 7 regulations). In view of the
above, the Service does not believe it is
necessary to add a discussion on
cumulative effects to the definition of
negligible impact
Impact on individuals; As stated in
the preamble of the proposed rule, the
negligible impact finding is made with
respect to impacts to the marine
mammal species or stock and not with
respect to impacts to individual animals.
Some commenters believed that this
should be clearly stated in the
regulations, rather than just in the
preamble.
The Service declines to add a
statement to the regulatory definition o?
negligible impact because the preamble
-------
Federal Register / VoL 54. No. 188 / Friday. September 29. 1969 / Rules and Regulations 40343
discussion and the definition clearly
state that only impacts that "adversely
affect the species or stock" are
considered.
One commenter noted that in many
cases, available scientific Information
on the size and population dynamics of
a particular stock may be inadequate to
assess the degree of impacts posed by
incidental take. In those cases, the
commenter suggested that the Service
should assess impacts based upon a
consideration of impacts to individual
animals.
The Service disagrees. If information
is lacking to define a particular
population or stock of marine mmnmut,
then impacts resulting from incidental
take should be assessed with respect to
the species as a whole. See 132 Cong.
Ret S103O4-O5 (Oct 15.1988).
Addressing the degree of information
needed to assess the impacts of
incidental take, one commenter noted
that the Service may deny a request for
specific regulations only if the record
reflects a valid scientific basis for the
conclusion that a more than negligible
impact would be posed to the overall
population.
Although the commenter is correct
that the focus should be on impacts to
the overall popaiathm. the burden will
be on both the applicant and the Service
to show that information exists in the
administrative record to support a
negligible impact finding. See earlier
discussion on "Burden of Proof
One commenter believed that the use
of OSP as described is the preamble to
the proposed rule would shift the focus
away from consideration of population
impacts.
The Service disagrees. As
earlier, an OSP determination ia not
required to make a negligible impact
Ending. The Service will use all
available information a
population, including its status relative
to OSP (if known).
Speculative impacts: A variety of
comments were received on the issue of
how speculative impacts should be
treated in determining neghg&le
Several commenter* argued that the
regulations should clearly state that
speculative or conjectural effects will
not be considered in evaluating
One commenter added that negligible
impact should be found when the
probability of occurrence of an ia
low whereas the potential impact may
be significant However, other
commenters, citing the lack of definitive
data on the population dynamics of
some marine mammal populations,
suggested that the Service should err on
the side of caution when certain
impacts aa "speculative" oi
"conjectural." One commenter stated
that the allowance of incidental taking
of a depleted species when the impacts
of such taking cannot presently be
assessed would be in violation of both
the MMPA and the ESA.
The Service believes that the
discussion regarding speculative
impacts in the preamble of the proposed
rule accurately interpreted the
legislative intent behind the 1986
Amendments:
If potential effects of a specified activity
are conjectural or speculative, a finding of
negligible Impact may be appropriate. A
Ending of negligible impact may ako be
appropriate U the probability of occuneacs ia
low but the potential effects may be
significant la this case; the probability of
occurrence of impact* must be balanced with
the potential severity of harm to the species
or stock when determining negligible Impact
In applying this balancing test the Serrtee
wiB tfcoreaghly evaluate the risks involved
and the potential impacts en marine
papulations. Ssch detenninationa will be
made based on the best available ««*—'MB*
information.
S3 FR at 8474; accord, 132 Coog. Rec.
S16305 (Oct 15.1968). The Service
recognizes the tension that exists
between development interests and
wildlife resource interests when
restrictions on development are
predicated upon the existence of
adverse impects that are speculative in
nature. To resolve these difficult
situations, the legislative history of the
1988 Amendments endorsed the use of a
balancing approach to weigh the
likelihood of occurrence against the
severity of the potential impact
The degree of certainty of occurrence
required in thrift should be
inversely proportional to the resultant ham
to the overall population.
132 Cong. Rec. S1830S (Oct 15.1988). In
applying thia balancing test the Service
must of necessity, evaluate each
request for specific regulations on a
case by-case basis.
Imped on Habitat
The amendments deleted the required
finding that the specfied activity have
only a negligible impact upon the marine
mammal habitat Under the pre vis ua
standard, • minor impact on a small
segment of habitat might be found to be
more than negligible the incidental
take prohibited even if the overall
impact on the species or stock utilizing
the habitat waa negligible. Nevertheless,
impacts on rookeriea. mating grounds,
feeding areas wxi arees of similar
significance could have adverse effects
on the species or stock. Aa discussed in
the "Impacts on Species or Stock"
section above; an habitat are
part of the consideration in making the
finding of negligible impect on the
species or stock. Further, even if the
impact is determined to be negligible;
specific regulations must include
measures to ensure the least practicable
adverse impact on the habitat
Definition: Commenters believed that
the definition of negligible impact
should specify that impacts on habitat
will not be considered unless they have
a greater than negligible impact on the
marine mammal papulation as a whole.
The Service believes the definition of
negligible imped reflects this and no
changes are neceasaiy.
Required information: Since impacts
on habitat are considered only in the
context of impects on the species, one
commenter believed that the Service
should delete the requirement in a
request for information concerning
impacts on habitat (f f 18£7(d) (iv). (v)
and 2284(a) (7), (8)]L Commenters also
believed that the information required
should be restricted to impects that can
be expected to adversely affect the
overall population through effects on
rates of recruitment or survival or
should be restricted to die impacts on
exlaiting rookeries, mating grounds,
feeding areas, and areas of similar
significance.
The Service believes the existing
information required should be retained.
A description of the impacts on the
habitat and the effects of any loss or
modification of habitat on the marine
mammal populations is needed in the
Service's evaluation of negligible
impact If the impacts on habitat are not
likely to result is more than a negligible
impact on the population, then they will
not be a basis for denying a request
However, the Service still has an
obligation to require measures to ensure
the least practicable adverse impact on
the habitat whether or not it causes
more than a negligible impact on the
populations, paying particular attention
to rookeries, mating grounds, and areas
of rimUnr
Relation to critical habitat
Commenters suggested that the
preamble clarify that impacts on habitat
are considered in the broad biological
sense. Tiny stated that effects on
critical habitat woold be considered in
the ESA Section 7 consultation process.
Impacts on the population of the loss
or modification of any part of the
population's habitat ate considered in
determining negligible impact "Critical
habitat" la a regulatory determination
under the ESA. Section T requires that
Federal agencies ensure that their
activities are not likely to jeopardize the
continued existence of endangered or
-------
40344 Federal Register / Vol. 54. No. 188 / Friday. September 29, 1989 / Rules and Regulations
threatened species or result in the
destruction or adverse modification of
their critical habitats. Only impacts on
those areas designated as critical
habitat are considered in the
determination of destruction or adverse
modification. However, impacts on the
species of the loss or modification of
any part of habitat is evaluated in the
determination of jeopardy.
Impact on Subsistence Uses
The amendments changed the
standard used to evaluate the impact on
subsistence uses from "negligible
impact" to "not having an unmitigable
adverse impact" To determine that an
unmitigable adverse impact on
subsistence uses exists, two elements
must be present First the impact
resulting from the specified activity must
be likely to reduce the availability of the
species to a level insufficient for a
harvest to meet subsistence needs by (1)
fanning thft marine mammala to
abandon or avoid hunting areas. (2)
directly displacing subsistence users, or
(3) placing physical barriers between the
marine mammala and subsistence
hunters. Second, it must be an impact
that cannot be sufficiently mitigated by
other measures to increase the
availability of marine mammals to allow
subsistence needs to be met
Those conducting the specified
activity, the involved Federal agencies,
and the affected subsistence users, are
encouraged to meet and develop
mutually agreeable conditions which
satisfy the operational, scientific or
other needs of the activity and the
requirements of subsistence users.
Unmitigable adverse impact: One
commenter suggested that consistent
with the legislative history of the
amendments, the definition of
"unmitigable adverse impact" should be
clarified to specify that an impact must
result from the specified activity rather
than from environmental or other
factors.
The Service agrees that only impacts
on subsistence uses resulting from the
specific activity should be considered in
determining if an unmitigable adverse
impact exists. Environmental and other
factors not related to the specific
activity are evaluated only in
determining existing baseline conditions
and availability. Since the regulatory
definition clearly states that
"immitigable adverse impact" means an
impact "resulting from the specified
activity." no changes are warranted
One commenter suggested that
mitigation should not require the
elimination of an impact. Rather,
reducing the impact such that
subsistence need9 can be met would be
sufficient in the commenter's opinion.
The new standard of "unmitigable
adverse impact" does not require the
elimination of adverse impacts, only
mitigation sufficient to meet subsistence
requirements. However, the
amendments also require that the
specific regulations governing an
activity include measures to ensure the
least practicable adverse impact on the
availability of marine mammals for
subsistence uses, even if the activity
will not otherwise have an unmitigable
adverse impact Hence, any adverse
impacts would have to be mitigated to
the extent practicable.
Another commenter stated that to
reflect congressional intent the
definition of "unmitigable adverse
impact" should specify that animals
would have to vacate a hunting area
rather than just avoid it In addition, the
number of marine mammals that would
have to abandon or avoid a hunting area
to constitute an adverse impact should
be a criterion in the regulations
according to the commenter.
The legislative history of the
amendments emphasizes the availability
of "sufficient numbers" of marine
mammals to meet the subsistence needs
of the community, in this context
"vacate" was intended to connote both
the temporary and permanent absence
of marine mammals from subsistence
hunting areas. Hence, the terms
"abandon" and "avoid" are more
precise than "vacate"—abandonment of
habitat involves forsaking an area
completely, while avoidance includes
temporary absence from or bypassing an
area.
Specifying the number, proportion, or
some other quantification of animals
avoiding or abandoning an area that
would constitute an adverse impact is
difficult The value assigned such a
criterion would vary depending on the
specific circumstances, including actual
subsistence needs, the extent of the area
avoided by the marine mammala, and
whether or not animals remain available
in other areas. If appropriate and
feasible, such a criterion will be
established during the development of
specific regulations for an activity. Since
it may not be possible to establish such
a criterion in all instances, it is not
required in these regulations.
Cultural subsistence: A commenter
suggested that cultural aspects of
dependence on marine mammals should
be reflected in the definition of
subsistence needs in addition to the
nutritional and other physical attributes
usually associated with this term. This
commenter added that since the cultural
significance of subsistence harvests is to
a great extent specific to individual
communities, the impacts of a specified
activity on subsistence uses must be
assessed locally.
The finding of an unmitigable.adverse
impact considers the availability of the
species for subsistence needs and is not
based on cultural considerations. To the
extent that opportunities to meet the
subsistence needs of the community
remain available, however, many of the
cultural dimensions of subsistence use
would be accommodated. "Availability"
provides opportunities for traditional
hunts and for the Native community to
transmit its hunting-based culture to
each new generation. In keeping with
the emphasis in the legislative history,
the definition of unmitigable adverse
impact has been modified to emphasize
"availability." Such emphasis will
accommodate many of the cultural
dimensions of subsistence uses of
marina mammala. Although the
amendments changed the standard for
evaluating impacts on subsistence uses
from "negligible impact" to "unmitigable
adverse impact" the availability of
marine mammals for subsistence
harvest remains a central consideration.
Coordination with subsistence users:
A commenter suggested the language
from the preamble encouraging the
agency, applicant and affected
subsistence users to agree upon terms
and conditions for activities which
satisfy their subsistence, operational,
scientific and other needs be
incorporated into the regulations.
Such coordination could be effective
in identifying and achieving consensus
regarding subsistence mitigation
measures to be incorporated in specific
regulations. For instance, though not
required under the regulations, affected
native interests and applicants could
agree that the availability of marine
mammals could be achieved by means
other than the traditional distribution of
the animals. The Service encourages,
and as appropriate will participate in.
such cooperative ventures. Language
has been added to SS l&27(d)(l)(vi) and
228.4(9) to encourage, but not require,
such coordination.
Mitigating Measures
The preamble of the proposed rule
discussed mitigating measures in three
contexts. With regard to negligible
impact determinations, if the impact of a
specified activity would be rendered
negligible by mitigating measures when
that requirement would not otherwise be
satisfied, the Service may make a
negligible impact finding subject to
successful implementation of those
mitigating measures. In evaluating
-------
Fedora! Register / Vol. 54. No. 108 / Friday, September 29, 1989 / Rules and Regulations 40345
impacts on subsistence uses of marine
mammals, the Service must find that the
specified activity will not have an
immitigable adverse impact Finally, the
amendments require that specific
regulations governing a specified
activity include measures to ensure the
least practicable advene impact an the
species and its habitat and on die
availability of the specie* for
subsistence uses. Mitigating measures
are intended to ensure the availability of
enough animals to owet subsistence
needs aad to minimize impact* on the
speda* or stock and subsistence xam.
Support ax&gating measures.-Que
commenter endorsed the requirement fee
rniHftflHng mpnnnrp* tn roHm-n »h»
impact of specific activities on marine
mammal populations, habitats and
subsistence uses to levels.
The commenter suggested that ifUia
determined that mWyHni immimi
have been or could be effective, these ¦
measures should be required in specific
regulations and as a condition for
issuing any Letter of Authorisation.
The Service agrees. The regulations
require the inclusion of mitigating
measures, as appropriate, in specific
regulations and as a condition for
issuing Letters of Authorization.
Swvice'r nspeiuibiUty to identify
mitigating measures: A commenter
suggested thai the Service'has the
responsibility to Identify mitigating
measure* While the requester and the
Service, in many instances sham
responsibility for identifying mitigating
measures, the commenter argued that
the Service is vested wfth the ultimate
responsibility to search {or appropriate
mitigating measures before denying a
request for specific regotaiteaa.
The Service disagrees. Sace the
applicant is most familiar with the
nature aad extent oi the activity
contemplated aad haa the detailed
knowledge el possible-alternatives to
that activity and the impacts oa marae
mammals, the eppfiraat iaia the beet
position to identify and assess
mitigating measures. In addition, es the
primacy benefidaiyafanji tnridental
take authorization, tbe applicant should
be ultimately responsible far identifying
such measures. Nevertheless, tha
Service will conaider all available
information in asaesaingthe adequacy
and effedivenefla of measures tn
mitigat* the adverse Impact* o£ the
proposed taking and in developing
specific regulations.
Requited coordination wM appEcaoL'
To facilitate coordteatfon. a commenter
proposed that requesten.be advised of
any mitigating measures contained in a
proposed rule at least 1Q days prior tn
publication In the Federal Register.
Under this procedure, if the requester,
within 10 days of such notification, finda
the mitigating measures to be
inappropriate or economically
prohibitive, publication may be delayed
to communicate these concerns to the
Service.
The Service finds it unnecessary to
delay the rulemaking process given the
requirement for public comment on the
proposed rule, including any mitigating
measures. In addition. the applicant
could always petition for further review.
Letters ol Anthoriiatiow
This rale makes technical
modifications to two paragraphs is die
existing regulations (50 CFR lft. 27(f) and
228.6) related to Letters of
Authorization. The changes am intended
to make the language in those
paragraphs consistent with the new
definitions ol "negligible impact" and-
"unmitigable advene impact" and tha
use and interpretation of those terms,
elsewhere in theregulattocsL Although
not discussed in the preamble to- the
proposed rule, there were several
comments related to Letters of
Authorization.
Modification of Letters of
Authorization; One commenter
suggested that tha regulations should
provide for of Latter* oi
Authorization a& an alternative to
withdrawal or suspension. In particular,
it was proposed that these authorization,
documents should not be suspended
unless tha Service finds there are no
additional or alternative mitigating
measures which would alleviate tha
need for such action.
Current procedures allow tha
modification of Letter* of Authorization
to reflect changed conditions through
withdrawal and reissuance as long as
the incidental take levels or other
requirements of the specific regulation*
ere not violated. If Letter* of
Authorisation an withdraws or
suspended o» a dasebaeia, •
rulemaking to establish new specific
regulation* caa be initiated, to some
cases this approach would be preferable
since a comprehensive nevataatiea
would be required on whether the
specified activity is st&hanrmga
negligible: impact.
Pubiis eoaaientaB anmgeary
withdrawal or suspension of L&tBessaf
Authorizations A rowenlar suggested
that the emergency withdrawal or
suspension authority in SO. CFR
l&2?fftt&} and 228.0(f) be curtailed by
requiring that tha Sexvica, based on tha
hc«t irtawtifir aMotlmhU,
find that there is an hnmadiat* and
substantial risk to the well-being of tha
marine mammal populations involved
without such emergency action.
Such a finding is. in effect required
under present law and regulations.
Moreover, due to the potentially serious,
consequences of withdrawal or
suspension of Letters of Authorization,
the Service would make every effort to
provide notice and an opportunity
where possible for public comment
under the provisions of SO CFR
l
-------
40346 Federal Register / Vol. 54. No. 188 / Friday, September 29, 1989 / Rules and Regulations
implementation of reasonable and
prudent altemative(s)) is not likely to
result in jeopardy or adverse
modification but may result in the
incidental take of endangered or
threatened species, the Service includes
an incidental take statement in the
biological opinion as required by section
7(b)(4). Compliance with the terms and
conditions specified in the incidental
take statement exempts the Federal
agency and any permit or license
applicant involved from the taking
prohibitions of the ESA up to the level
specified in the incidental take
statement
Coordination Between the ESA and
MMPA
One of the purposes of the
amendments to the MMPA and the ESA
was to clarify the relationship between
these statutes so that decision processes
under each would be coordinated and
integrated to the maximum extent
practicable. The ESA alone dees not
provide authority for the incidental take
of endangered or threatened marine
mammals—the requirements of both the
MMPA and ESA must be met The
incidental take statement issued under
the authority of the ESA will include
terms and conditions with which a
Federal agency or applicant must
comply. The amendment added a
provision to section 7(b)(4) which directs
that the provisions of section 101(a)(5) of
the MMPA must be completed before
the incidental take of endangered or
threatened marine mammals is allowed.
In addition to the reasonable and
prudent measures to minimize the
impact of the incidental take, an
incidental take statement will include
measures which are required to comply
with section 101(a)(5) of the MMPA and
applicable regulations. The difficulty of
coordinating the ESA consultation and
MMPA exemption processes is that
section 7(b) of the ESA generally
requires that consultation be completed
within 90 days while the MMPA
regulatory process is much longer.
Delay of section 7 process: Otoe
commenter stated that the preamble
implied that'initiation of section 7
consultation would be delayed until the
MMPA process was well underway.
They stated that the processes should be
conducted simultaneously and that the
ESA process should begin immediately
upon submission of the MMPA request.
Because of the timing discrepancy
between the two processes reflecting
procedural differences maintained by
Congress, the MMPA section 101(a)(5)
process cannot be completed as
expeditiously as the ESA process.
However, the legislative history offers
options on how to handle the timing
discrepancies between the two Acts,
two of which were summarized in the
preamble to the proposed rule. The first
is to consider initiating the MMPA
section 101(a)(5) process in advance of
the ESA section 7 process. In this way,
the MMPA requirements can be
incorporated into the ESA incidental
take statement when the biological
opinion is issued and subsequent
revisions would not be necessary.
Another option is to have the Federal
agency and the Service agree to extend
the consultation under section 7(b)(1)(A)
to accommodate completion of the
section 101(a)(5) regulations. The
consent of any permit or license
applicant is required for an extension of
more than 60 days. An additional option
involves early consultation under
section 7(a)(3) of the ESA. Under this
approach, a preliminary biological
opinion could be issued on the
prospective agency action. When the
section 101(a)(5) process is completed,
the biological opinion would be
reviewed and the ESA section 7(b)(4)
incidental take statement amended or
added, as appropriate. These, or similar
options, will be available to the agency
and the applicant as appropriate.
Issuance of incidental take
statements: One commenter pointed out
the different approaches taken by NMFS
and FWS in how they handle the
incidental take statements included in
the biological opinion, and urged that
these regulations established a
consistent policy. Another commenter
argued that the ESA biological opinion
should be completed within the required
time limits and the incidental take
statement added to the opinion upon
completion of the MMPA process.
The Service agrees with these
comments and. therefore, in the future,
neither agency will issue an incidental
take statement in the biological opinion
if consultation is completed before the
section 101(a)(5) regulations are issued.
The biological opinion will later be
amended to include the incidental take
statement
One commenter said that section 7 of
the ESA requires the timely issuance of
biological opinions and incidental take
statements.
The Service agrees and will continue
to issue biological opinions within the
section 7 timeframe. However, the
portion of the incidental take statement
dealing with marine mammals will be
added to the biological opinion after the
MMPA requirements have been
satisfied.
Section 7(o) of the ESA
Section 7(o) of the ESA, as amended,
specifies that any taking in compliance
with the terms and conditions of an
incidental take statement is not a
prohibited taking under the ESA. No
other ESA permit or authorization is
required of the Federal agency or
applicant in carrying out the action if the
incidental take statement applies and if
the action complies with the terms and
conditions of that statement The
biological opinion plus.the incidental
take statement operate as an exemption
under section 7(o)(2) of the ESA. The
new § 402.14(i)(5) clarifies this provision.
Private actions: In the preamble to the
proposed rule, the Service cited the
following example concerning private
actions. Section 10(a) of the ESA allows
the Service to issue permits for the
taking of endangered species incidental
to an otherwise lawful non-Federal
action within the United States and its
territorial sea, subject to certain
conditions. In 1982. Congress added this
provision to allow incidental taking
associated with private actions that are
not subject to the section 7 consultation
process.
If an endangered or threatened marine
mammal may be taken incidentally to a
private actioa regulations under section
101(a)(5) of the MMPA would be
required Consultation under section 7 of
the ESA would be conducted since
issuance of the MMPA regulations is a
Federal action. The incidental take
statement issued with the biological
opinion would address taking concerns
under the ESA. and a section 10 permit
would not be required.
Two commenters disagreed with this
interpretation, contending that it would
allow wholly non-Federal activities to
be relieved of section 10 requirements
(except for the necessity of obtaining
MMPA incidental taking authority),
most notably the conservation plan
obligations.
This implies that private activities are
subject to stricter protection standards
than activities with Federal
involvement This contention
misconstrues the purpose and effect of
section 10 provisions relating to private
actions. These provisions were added
by Congress to allow persons engaged in '
activities with no discretionary Federal
involvement the same access to ESA
exemptions and provisions as those
engaged in activities requiring Federal
approval or scrutiny. There is no
indication in the ESA or its legislative
history that Congress intended to set up
substantially different or stricter
protection standards for private
-------
Federal Register / Vol. 54, No. 188 / Friday, September 29. 1089 / Rules and Regulations 40347
activities by requiring a conservation
plan. In commenting on the standards to
be used in granting section 10 permits
for private activities, the House Report
states the following:
The (S]ecretary would base his
determination on whether or not to grant the
permit under the some standard as found in
section 7(a)(2) of the Act. that is, whether or
not the taking would jeopardiie the
continued existence of the species. To issue
the permit, the Secretary would also have to
find that the taking would be incidental to
another activity and that the applicant would
mfnimlm the tulriwg tO the wimrimnm extent
practicable.
HJL Rep. No. 567,97th Cong., 2nd Sess.
31 (1982).
Section 7 and section 10 are designed
to achieve the same objectives through
different procedural means. The
conservation plan requirement is the
means for ensuring effective and timely
Federal involvement In an otherwise
private activity. For those activities
already subject to such involvement
through regulations or permits, there is
no need for a separate conservation
plan. Under both sections 7 and 10, the
endangered and threatened species are
afforded the same level of protection.
To require a separate section 10
permit in addition to section 101(a)(5)
regulations and a section 7 consultation
would serve only to increase the
administrative burden on the applicant
and the government with no
corresponding benefit to endangered or
threatened marine species.
Exceeding Take Limits
One commenter suggested that the
regulations should specify what will
happen when an incidental take level is
exceeded, and that this be the same for
all incidental take authorizations under
both the MMPA and ESA.
The Service agrees that provisions for
addressing excessive incidental take
should be consistent for authorizations
under MMPA regulations and ESA
incidental take statements. The MMPA
and ESA incidental take processes are
similar in that when an incidental take
authorization is exceeded, the activity
must be reevaluated. However, if the
activity continued during such a
reevaluation. then any resultant taking
would be subject to penalties under the
ESA and/or the MMPA.
Under section 7 of the ESA.
consultation must be reinitiated
immediately by the Federal agency if the
incidental take level is exceeded {see 50
CFR s 402.14(i)(4)). Exceeding the level
of anticipated taking does not by itself,
require the stopping of an ongoing
action during reinitiation of
consultation. However, any further
taking resulting from the activity would
be illegal under the ESA. If formal
consultation is reinitiated, section 7(d)
of the ESA again takes effect That
provision prohibits the Federal agency
or applicant from making any
irreversible or irretrievable commitment
of resources which has the effect of
foreclosing the formulation or
implementation of any reasonable or
prudent alternatives which would avoid
violating section 7(s)(2).
The parallel language in section
101(a)(5) of the MMPA requires
withdrawal or suspension of Letters of
Authorization either on an individual or
class basis if. after notice and public
comment it is found that the impact of
the authorized incidental take is more
than negligible (see 50 CFR 18.27(f)(5)
and 228.0(e)). The Southern Sea Otter
Translocation Project an issue raised by
the commenter, involves a
fundamentally different situation in that
it is an experimental effort authorized
by a special statute and by a scientific
research permit
Sea Otter Management Zone
In 1988, Public Law 99-825 was passed
by Congress to govern the translocation
of southern sea otters for research and
recovery purposes. The FWS has
established an experimental papulation
of sea otters around San Nicolas Island.
Ventura County, California.
One commenter stated that these
regulations should not apply to activities
within the management zone for the
experimental population of the sea otter.
There are two zones established by
the translocation project The first area
is the translocation zone around San
Nicolas Island that has a baseline at the
15-fathom isobath with the boundaries
extending 10 to 15 nautical miles from
the baseline. The second zone surrounds
the translocation zone and is an otter-
free or management zone, encompassing
all marine waters subject to U.S.
jurisdiction from Point Conception
south.
Within the translocation zone, except
for defense-related actions and actions
initiated prior to the passage of Public
Law 99-825. the consultation provisions
of section 7(a)(2) of the ESA and the
provisions of the MMPA apply. Within
the management zone, unless the
proposed action may affect the "parent
papulation" (see 50 CFR 17J4(d)(l)(iv),
the provisions of section 7(a)(2) of the
ESA and the restrictions on incidental
taking under the MMPA do not apply.
However, the section 7(a)(4)
requirement to confer applies to Federal
activities within the management zone
and to defense-related activities in
either zone.
Regulatory Changes
These regulations amend 50 CFR parts
18.228 and 402 to implement the 1986
Amendments to section 101(a)(5) of the
MMPA and sections 7(b)(4) and 7(o) of
the ESA. Basic processes for authorizing
incidental take under both ESA and
MMPA remain the same; the primary
changes are (1) allowing the incidental
take of depleted marine mammals, and
(2) changing the findings that must be
made to allow a take.
Authority citation: Commenters noted
that the authority citation for 50 CFR
part 228 should be 18 U.S.C. 1371(a)(5),
rather than the entire MMPA. since the
criteria to be considered are entirely
within section 101(a)(5).
The Service disagrees. Although the
criteria are all contained within section
101(a)(5), the enforcement and penalty
provisions of the MMPA also apply to
activities conducted under section
101(a)(5).
The Department of the Interior, as
lead agency, has prepared an :
environmental assessment on Ais rule.
On the basis of this assessment it has
been determined that this is not a major
Federal action significantly affecting the
quality of the human environment
within the meaning of section 102(2)(C)
of the National Environmental Policy
Act of 1989 (NEPA). Therefore, an
environmental impact statement need
not be prepared. The regulations are
procedural and, by themselves, do not
authorize the taking of depleted marine
mammals. Issuance of specific
regulations under section 101(a)(5) of the
MMPA allowing a taking would require
compliance with NEPA, including the
preparation of a separate environmental
assessment or impact statement if
required
NEPA compliance: One commenter
believed that the issuance of specific
regulations allowing an incidental take
should not require the preparation of a
separate environmental assessment or
impact statement It was stated that
given the thresholds of negligible impact
on a species or stock and no unmitigable
adverse impact on subsistence users,
requests under section 101(a)(5) would
appear to qualify for categorical
exclusion treatment under the Council
for Environmental Quality's regulations,
and the Service should amend its NEPA
regulations accordingly.
Since the Service must analyze the
proposal for specific regulations to make
the determination that the proposal has
only a negligible impact on a species or
stock and does not have an unmitigable
-------
40348 Federal Register / Vol. 54, No. 180 / Friday, September 29, 19S9 / Rules and Regulations
adverse impart on subsistence users, the
NEPA process will be used to facilitate
those determinations. The issuance of
specific regulations allowing incidental
take would normally only require the
preparation of an environmental
assessment. Thus, the Service does not
believe a categorical exclusion is
warranted or that its NEPA regulations
need to be amended.
It haB been determined that these
regulations do not constitute a major
rule as defined in Executive Order
12291. The Department of the Interior
has certified under the terms of the
Regulatory Flexibility Act [5 U.S.C. 601
et seq.) that the regulations will not have
a significant economic impact on a
substantia] number of small entities. The
amendments of rules governing the take
of small numbers of marine mammals
incidental to specified activities will
have little, if any, economic effect
Direct costs will be those associated
with subsequent preparation of
applications for "Specific Regulations"
and "Letters of Authorization."
However, those costs are not likely lo
approach the $100 million annual
threshold for these rules to be
considered a major rule in accordance
with E.0.12291. As most of the
applicants under the revised rule, as at
present are likely to be oil and gas
corporations and their contractors, they
would not be considered small entities
under the Regulatory Flexibility Act
The regulations in 50 CFR parts IB and
228 contain a collection of information
requirement subject to Office of
Management and Budget (OMB)
clearance under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.).
The information collection requirement
in SO CFR 18.27 is approved under OMB
control number 101S-0070 and the
Information requirement in 50 CFR part
228 is approved under OMB control
number 0646-0151. Public reporting
burden for this collection of information
is estimated to average SO hours per
response, including the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information. Send comments
regarding this burden estimate or any
other aspect of this collection of
information, including suggestions for
reducing this burden, to the Office of
Protected Resources and Habitat
Programs, National Marine Fisheries
Service, 1335 East-West Highway. Silver
Spring. MD 20910; the Information
Collection Clearance Officer. US. Fish
and Wildlife Service, Department of the
Interior, Mail Stop—220 ARLSQ, 18th
and C Streets. NW., Washington. DC
20240; and to the Paperwork Reduction
Project Office of Information apd
Regulatory Affairs. Office of
Management and Budget Washington.
DC 20503.
The amendment of part 402 does not
contain information collection
requirements requiring OMB approval
under the Paperwork Reduction Act
The analyses under NEPA. E.0.12291
and the Regulatory Flexibility Act are
available for review (see for further
INFORMATION CONTACT).
The primary authors of this final rule
are Robert Peoples, Nancy Sweeney,
and Michael Young, Department of the
Interior, and Patricia Montanio and
Gene Martin, Department of Commerce.
List of Subjects
50 CFR Part 18
Administrative practice and
procedure. Alaska, Exports, Imports,
Intergovernmental relations. Marine
mammals. Transportation.
50 CFR Pari 228
Administrative practice and
procedure. Marine mammals. Outer
continental shelf oil and gas exploration.
50 CFR Part 402
Endangered and threatened wildlife,
Fish. Intergovernmental relations. Plants
(agriculture).
Regulation Promulgation
Accordingly, the Service amends 50
CFR parts 18.228 and 402 as shown
below.
PART 18—MARINE MAMMALS
1. The authority citation for 50 CFR
part 18 is revised to read as follows:
Authority. 16 U.S.C 1461 et seq.
2. In 118-27, paragraph (a) is amended
by removing the words "Pub. L. 97-58"
and "non-depleted"; paragraph (b),
including the note following that
paragraph, is revised; in paragraph (c),
the definition of "negligible impact" is
revised, the definition of "specified
activity" is amended by removing the
word "non-depleted" wherever it occurs,
and a new definition for "unmitigable
adverse impact" is added in
alphabetical order paragraph (d) is
amended by removing the word "non-
depleted" wherever it appears; the
second sentence of the introductory text
to paragraph (d)(1) is revised; a sentence
is added to the end of paragraph
(d)(l)(vi); e new paragraph (d)(4) is
added; and paragraphs (d)(3), (e)(1).
(f)(2). and (f)(5)[ii) are revised, to read as
follows:
9 13 J7 Regulations governing small takes
of marine mammals incidental to specified
activities.
* • • • *
(b) Scope of Regulations. The taking
of small numbers of marine mammals
under section 101(a)(5) of the Marine
Mammal Protection Act may be allowed
only if the Director of the Fish and
Wildlife Service (1) finds, based on the
best scientific evidence available, that
the total taking during the specified lime
period will have a negligible impact on
the Bpecies or stock and will not have an
unmitigable adverse impact on the
availability of the species or stock for
subsistence uses; [2] prescribes
regulations setting forth permissible
methods of taking and other means of
effecting the least practicable adverse
impact on the species and its habitat
and on the availability of the species for
subsistence uses, paying particular
attention to rookeries, mating grounds,
and areas of similar significance; and (3]
prescribes regulations pertaining to the
monitoring and reporting of such taking.
Note: The information collection
requirement contained in this {1&Z7 has
been approved by the Office of Management
and Budget under 44 U.S.C. 3501 et jeq. and
assigned clearance No. 1018-0070. The
information la being collected to describe the
activity proposed and estimate the
cumulative impacts oi potential takings by alt
peisons conducting (he activity. The
information will be used to evaluate the
application and determine whether to issue
Specific Regulations and, subsequently.
Letters oi Authorization. Response is
required to obtain a benefit
The public reporting burden from this
requirement is estimsted to vary from 2 to 200
hours per response with an average of 10
hours per response Including time for
reviewing instructions, gathering and
maintaining data, and completing and
reviewing applications for specific
regulations and Letters of Authorization.
Direct comments regarding the burden
estimate or any other aspect of this
requirement to the Information Collection
Clearance Officer. U.S. Fish and Wildlife
Service, Department of the Interior. Mail
Stop—220 ARLSQ, 18th and C Streets NW„
Washington. DC 20240, and the Office of
Management and Budget Paperwork
Redaction Project (Clearance No. 1C1B-O0TO).
Washington. DC 20503.
(e) * * *
"Negligible impact" is an impact
resulting from the specified activity that
cannol be reasonably expected to, and
is not reasonably likely to. adversely
affect the species or atock through
effects on annual rates of recruitment or
survival.
"Unmitigable adverse impact" means
an impact resulting from the specified
activity {1} that ia likely to reduce the
-------
Federal Register / Vol. 54, No. 188 / Friday. September 29. 1989 / Rules and Regulations 4034?
availability of the species to a level
insufficient for a harvest to meet
subsistence needs by (i) causing the
marine mammals to abandon or avoid
hunting areas, (ii) directly displacing
subsistence users, or (iii) placing
physical barriers between the marine
mammals and the subsistence hunters:
and (2) that cannot be sufficiently
mitigated by other measures to increase
the availability of marine mammals to
allow subsistence needs to be met
(d) * * '
(1) * * * Requests shall include the
following information on the activity as
a whole, which includes, but is not
limited to. an assessment of total
impacts by all persons conducting the
activity:
• • • • •
(vi) * * * (The applicant and those
conducting the specified activity and the
affected subsistence users are
encouraged to develop mutually
agreeable mitigating measures that will
meet the needs of subsistence users.);
• • • • •
(3) The Director shall evaluate each
request to determine, based on the best
available scientific evidence, whether
the total taking will have a negligible
impact on the species or stock and,
where appropriate, will not have an
unmitigable adverse impact on the
availability of such species or stock for
subsistence uses. If the Director finds
that mitigating measures would render
the impact of the specified activity
negligible when it would not otherwise
satisfy that requirement, the Director
may make a finding of negligible impact
.subject to such mitigating measures
being successfully implemented. Any
preliminary findings of "negligible
impact" and "no unmitigable adverse
impact" shall be proposed for public
comment along with the proposed
specific regulations.
(4) If the Director cannot make a
finding that the total taking will have a
negligible impact in the species or stock
or will not have an unmitigable adverse
impact on the availability of such
8pedes or stock far subsistence uses,
the Director shall publish in the Federal
Register the negative finding along with
the basis for denying the request
(e) * ' *
(1) Specific regulations will be
established for each allowed activity
which set forth (i) permissible methods
of taking, (ii) means of effecting the least
practicable adverse impact on the
species and its habitat and on the
availability of the species for
subsistence uses, and (iii) requirements
for monitoring and reporting.
(0* * *
(2) Issuance of a Letter of
Authorization will be based on a
determination that the level of taking
will be consistent with the findings
made for the total taking allowable
under the specific regulations.
• » « • •
(5) * * •
(ii) The taking allowed is having, or
may have, more than a negligible impact
on the species or stock, or where
relevant an unmitigable adverse impact
on the availability of the species or
stock for subsistence uses.
PART 228—REGULATIONS
GOVERNING SMALL TAKES OF
MARINE MAMMALS INCIDENTAL TO
SPECIFIED ACTIVITIES
3. The authority citation for 50 CFR
part 228 is revised to read as follows:
Authority: 16 U.S.C. 1381 etteg.
{228.1 [Amended]
4. Section 228.1 is amended by
removing the words "Pub. L 87-58" and
"non-depleted."
5. Section 22BJZ is revised to read as
follows:
I228J Scope.
The taking of small numbers of marine
mammals under section 101(a)(9) of the
Marine Mammal Protection Act may be
allowed only if the National Marine
Fisheries Service (a) finds, based on the
best scientific evidence available, that
the total taking during the specified time
period will have a negligible Impact on
the species or stock and will not have an
unmitigable adverse impact on the
availability of the species or stock for
subsistence uses; (b) prescribes
regulations setting forth permissible
methods of taking and other means of
effecting the least practicable adverse
impact on the species and its habitat
and on the availability of the species for
subsistence uses, paying particular
attention to rookeries, mating grounds,
and areas of similar significance; and (c)
prescribes regulations pertaining to the
monitoring and reporting of such taking.
The specific regulations governing
specified activities are contained in
subsequent subparts to this part 228.
& In § 228.3, the definition of
"negligible impact" is revised; the
definition of "specified activity" is
amended by removing the word "non-
depleted" wherever it occurs; and a new
definition for "unmitigable adverse
impact" is added in alphabetical order,
to read as follows:
5 228.3 Definitions.
"Negligible impact" is an impact
resulting from the specified activity that
cannot be reasonably expected to. and
is not reasonably likely to. adversely
affect the species or stock through
effects on annual rates of recruitment or
survival.
« • • • •
"Unmitigable adverse impact" means
an impact resulting from the specified
activity (1) that is likely to reduce the
availability of the species to a level
insufficient for a harvest to meet
subsistence needs by (i) causing the
marine mammal* to abandon or avoid
hunting areas, (ii) directly displacing
subsistence users, or (iii) placing
physical barriers between the marine
mammals and the subsistence hunters;
and (2) that cannot be sufficiently
mitigated by other measures to increase
the availability of marine mammals to
allow subsistence needs to be met
7. In 1228.4, paragraph (a)(1) is
amended by removing the word "non-
depleted"; the second sentence of
paragraph (a) introductory text is
revised; a sentence is added to the end
of paragraph (a)(0); paragraph (c) is
revised; and a new paragraph (dj is
added, to read as follows:
122*4 Submission of requests.
(a) * * * Requests shall include the
following information on the activity as
a whole, which includes, but is not
limited to, an assessment of total
impacts by all persons conducting the
activity:
• * • • •
(0) * * * (The applicant and those
conducting the specified activity and the
affected subsistence users are
encouraged to develop mutually
agreeable mitigating measures that will
meet the needs of subsistence users.);
• • * • •
(c) The Assistant Administrator shall
evaluate eech request to determine,
based on the best available scientific
evidence, whether the total taking will
have e negligible impact on the species
or stock and, where appropriate, will not
have an unmitigable adverse impact on
the availability of such species or stock
for subsistence uses. If the Assistant
Administrator finds that mitigating
measures would render the impact of
the specified activity negligible when it
would not otherwise satisfy that
requirement the Assistant
Administrator may make a finding of
negligible impact subject to such
mitigating measures being successfully
implemented. Any preliminary findings
-------
40350 Federal Register / Vol. 54, No. 188 / Friday, September 29. 1989 / Rules and Regulations
of "negligible impact" and "no
unmitigable adverse impact" shall be
proposed for public comment along with
the proposed specific regulations.
(d) If the Assistant Administrator
cannot make a finding that the total
taking will have a negligible impact on
the species or stock or will not have an
unmitigable adverse impact on the
availability of such species or stock for
subsistence uses, the Assistant
Administrator shall publish in the
Federal Register the negative finding
along with the basis for denying the
request
8. In § 22KS, paragraph (a) is revised
to read as follows:
{ 228.5 Specific regulations.
(a) Specific regulations will be
established for each allowed activity
which set forth (1) permissible methods
of taking, (2) means of effecting the least
practicable adverse impact on the
species and its habitat and on the
availability of the species for'
subsistence uses, and (3) requirements
for monitoring and reporting.
• • • • •
9. In ( 228.6, paragraphs (b) and (e)(2)
are revised to read as follows:
{ 228.(1 Letters of Authorization.
• * « * •
(b) Issuance of a Letter of
Authorization will be based on a
determination that the level of taking
will be consistent with the findings
made for the total taking allowable
under the specific regulation*.
• • • * •
(e) * * *
(2) the taking allowed is having, or
may have, more than a negligible impact
on the species or stock, or. where
relevant, an unmitigable adverse impact
on the availability of the species or
stock for subsistence uses.
PART 402—INTERAGENCY
COOPERATION—ENDANGERED
SPECIES ACT OF 1973, AS AMENDED
10. The authority citation for part 402
continues to read as follows:
Authority: IB U.S.C. 1531 el seq.
11. In S 402.14. paragraph (i)(l) is
revised, the second sentence of
paragraph (i)(3) is revised, and a new
paragraph (i)(5) is added, to read as
follows:
S 402.14 Formal consultation.
(i)'"
(1) In those cases where the Service
concludes that an action (or the ¦
implementation of any reasonable and
prudent alternatives) and the resultant
incidental take of listed species will not
violate section 7(a)(2), and, in the case
of marine mammals, where the taking is
authorized pursuant to section 101(a)(5)
of the Marine Mammal Protection Act of
1972, the Service will provide with the
biological opinion a statement
concerning incidental take that:
(i) Specifies the impact La* the
amount or extent, of such incidental
taking on the species;
(ii) Specifies those reasonable and
prudent measures that the Director
considers necessary or appropriate to
minimi** 8UCh impart;
(iii) In the case of marine mammals,
specifies those measures that are
necessary to comply with section
101(a)(5) of the Manne Mammal
Protection Act of 1972 and applicable
regulations with regard to such taking:
(iv) Sets forth the terms and
conditions (including, but not limited to.
reporting requirements) that must be
complied with by the Federal agency or
any applicant to implement the
measures specified under paragraph
(i)(l)(ii) and (i)(l)(iii) of this section: and
(v) Specifies the procedures to be used
to handle or dispose of any individuals
of a species actually taken.
• • • • •
(3) * * * The reporting requirements
will be established in accordance with
50 CFR 13.45 and 18.27 for FWS and 50
CFR 220.45 and 228.5 for NMFS.
• • * * •
(5) Any taking which is subject to a
statement as specified in paragraph
(i)(l) of this section and which is in
compliance with the terms and
conditions of that statement is not a
prohibited taking under the Act and no
other authorization or permit under the
Act is required.
«««*«.
Dated: July 10.1989.
Susan Recce Lamaon,
Assistant Secretary for Fish and Wildlife and
Parks. Department of the Interior.
Dated: August 8,1989.
JamM W. Brazilian,
Assistant Administrator for Fisheries.
National Oceanic and A tmospheric
Administration.
[FR Doc. 89-23067 Filed 9-28-89; 8:45 am)
BUJM COM U10-U-M
BHJJNQ COM 4S10-M-M
-------
Endangered Species Consultation Handbook—Novcater 1994
APPENDIX B - FORMATS FOR CONSULTATIONS
[The following documents have been provided on disk. Instructions for use are
provided in bold; section titles and standardized language are not in bold.]
Page
CHAPTER 1 - GENERAL INFORMATION
Form for Early Alert of pending jeopardy/adverse modification
opinions B-2
CHAPTER IV - FORMAL CONSULTATION
Outline of a formal consultation package, including standardized
statements B-3
Example of an optional letter sent to Inform action agencies
that the Service has received a complete initiation package and
will begin formal consultation on a proposed action B-10
Example of a letter sent when a complete formal consultation
request has not been received B-11
CHAPTER VI - CONFERENCE
Outline of a formal, stand-alone conference package, including
standardized statements B-12
Outline of a formal conference incorporated into a formal
consultation package, including standardized statements B-18
CHAPTER VI - EARLY CONSULTATION
Outline of an early consultation package, including standardized
statements B-27
A sample letter to prospective applicants about their early
consultation rights B-34
CHAPTER VII - EMERGENCY CONSULTATION
Outline of an emergency consultation package, including
standardized statements B-36
Emergency consultation notification memorandum to the Regional
Office (optional) B-39
INTRA-SERVICE CONSULTATION
Intra-Service section 7 biological evaluation form, with
instructions B-40
B-l
-------
Endangered Species Consultation Handbook—Novortier 1994
EARLY ALERT
Prepared for: Director State:
Date submitted:
ISSUE: Draft (jeopardy/adverse modification) (opinion/conference) for the (name
of the project)
CONSULTING AGENCY/APPLICANT:
PROJECT DESCRIPTION: brief sunmary
EFFECT ON SPECIES/CRITICAL HABITAT: brief sunmary of effect on (species/critical
habitat)
REASONABLE AND PRUDENT ALTERNATIVES: list
CONGRESSIONAL DISTRICTS AFFECTED:
EXPECTED REACTION OF AGENCY/APPLICANT/OTHER INTERESTED PARTIES:
REGIONAL OFFICE CONTACT:
B-2
-------
Endangered Species Consultation Hancftiook—Hovonber 1994
Outline of a formal consultation package. Including standardized statements
Address
Dear. . .
Introductory paragraph: The U.S. F1sh and Wildlife Service (Service) has
reviewed the (project plans, permit application, etc.) for the following activity
(name or designation for the action) located in (County or State). Your (date)
request for formal consultation was received on (date). This document represents
the Service's biological opinion on the effects of that action on (species) 1n
accordance with section 7 of the Endangered Species Act of 1973, as amended, (16
U.S.C. 1531 et seq.).
This biological opinion is based on information provided in the (date) biological
assessment (or evaluation), the (date) draft environmental assessment (or
environmental Impact statement), the (date) project proposal, telephone
conversations of (dates) with (names), field Investigations, and other sources
of information. A complete administrative record of this consultation 1s on file
in (this office/elsewhere).
CONSULTATION HISTORY
BIOLOGICAL OPINION
DESCRIPTION OF PROPOSED ACTION
STATUS OF THE SPECIES (rangewlde)
ENVIRONMENTAL BASELINE (1n the action area)
Status of the Species
Effects of the Action
Cumulative Effects
Introduction: Cumulative effects include the effects of future State, local or
private actions that are reasonably certain to occur in the action area
considered in this biological opinion. Future Federal actions that are unrelated
to the proposed action are not considered in this section because they require
separate consultation pursuant to section 7 of ESA.
CONCLUSION
After reviewing the current status of (species), the environmental baseline for
the action area [use 1f different from the range of the species], the effects of
the proposed (action) and the cumulative effects, it is the Service's biological
opinion that the (action), as proposed, (1s/is not) likely to jeopardize the
B-3
-------
Endangered Species Consultation Handbook—Novcater 1994
continued existence of the (species), and (is/is not) likely to destroy or
adversely modify designated critical habitat. [If no critical habitat has been
designated for the species or the action will not affect designated critical
habitat, use one of the following statements.] No critical habitat has been
designated for this species, therefore, none will be affected. -OR- Critical
habitat for this species has been designated at (location), however, this action
does not affect that area and no destruction or adverse modification of that
critical habitat is anticipated.
REASONABLE AND PRUDENT ALTERNATIVES (as appropriate)
Introductory paragraph: Regulations (50 CFR §402.02) implementing section 7
define reasonable and prudent alternatives as alternative actions, identified
during formal consultation, that (1) can be implemented in a manner consistent
with the intended purpose of the action, (2) can be implemented consistent with
the scope of the action* agency's legal authority and jurisdiction, (3) are
economically and technologically feasible, and (4) would, the Service believes,
avoid the likelihood of jeopardizing the continued existence of listed species
or resulting in the destruction or adverse modification of critical habitat.
Closing paragraph: Because this biological opinion has found
(jeopardy/destruction or adverse modification of critical habitat), the (agency)
is required to notify the Service of its final decision on the implementation of
the reasonable and prudent alternatives.
INCIDENTAL TAKE STATEMENT
Introductory paragraph: Sections 4(d) and 9 of ESA, as amended, prohibit
taking (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect, or attempt to engage 1n any such conduct) of listed species of fish
or wildlife without a special exemption. Harm is further defined to include
significant habitat modification or degradation that results in death or
injury to listed species by significantly impairing behavioral patterns such
as breeding, feeding, or sheltering. Harass is defined as actions that create
the likelihood of injury to listed species to such an extent as to
significantly disrupt normal behavior patterns which include, but are not
limited to, breeding, feeding or sheltering. Incidental take is any take of
listed animal species that results from, but is not the purpose of, carrying
out an otherwise lawful activity conducted by the Federal agency or the
applicant. Under the terms of section 7(b)(4) and section 7(o)(2), taking
that is incidental to and not intended as part of the agency action is not
considered a prohibited taking provided that such taking is in compliance with
the terms and conditions of this incidental take statement.
The measures described below are non-discretionary, and must be implemented by
the agency so that they become binding conditions of any grant or permit
issued to the applicant, as appropriate, in order for the exemption in section
7(o)(2) to apply. The (agency) has a continuing duty to regulate the activity
covered by this incidental take statement. If the (agency) (1) fails to
require the applicant to adhere to the terms and conditions of the incidental
take statement through enforceable terms that are added to the permit or grant
B-4
-------
I
Endangered Spoctes Consultation Handtook—Novaaber 1994
document, and/or (2) fails to retain oversight to ensure compliance with these
terms and conditions, the protective coverage of section 7(o)(2) may lapse.
If the biological opinion finds jeopardy or adverse modification without a
reasonable and prudent alternative, the Introductory statement 1s as follows:
As the biological opinion finds that the proposed action will result in
(likely jeopardy to the species/destruction or adverse modification of
critical habitat), and no reasonable and prudent alternative can be
identified, any incidental taking is prohibited by section 9 of ESA.
Special provisions for plants, as appropriate: Sections 7(b)(4) and 7(o)(2)
of ESA do not apply to the incidental take of listed plant species. However,
protection of listed plants is provided to the extent that ESA requires a
Federal permit for removal or reduction to possession of endangered plants
from areas under Federal jurisdiction, or for any act that would remove, cut,
dig up, or damage or destroy any such species on any other area 1n knowing
violation of any regulation of any State or 1n the course of any violation of
a State criminal trespass law. [Include citations to appropriate State laws
1f helpful.]
AMOUNT OR EXTENT OF TAKE
Incidental take statement when no take 1s anticipated: The Service does not
anticipate the proposed action will incidentally take any (species).
Incidental take statement where the biological opinion 1s jeopardy and
Incidental take still is anticipated. For opinions with only one reasonable
and prudent alternative: The Service has developed the following incidental
take statement based on the premise that the reasonable and prudent
alternative will be implemented.
For opinions with more than one reasonable and prudent alternative, provide
separate estimates of anticipated take, reasonable and prudent measures and
terms and conditions, as appropriate: The Service has developed the following
incidental take statement based on the premise that the reasonable and prudent
alternative number XX will be implemented.
Introductory statement for amount and extent of take: The Service anticipates
(number of individuals of (species)) could be taken as a result of this
proposed action. Or the Service anticipates that individuals of (species)
could be taken as a result of this proposed action due to (describe extent of
relevant habitat degradation or disruption). The incidental take is expected
to be in the form of (harm, harass, kill, etc.). [Separately specify take
will be harm or harass or kill or some other form of take.]
[Provide a concise summary of the analysis leading to this determination.]
OR
The Service anticipates incidental take of (species) will be difficult to
detect for the following reason(s): [Incidental take of actual species
numbers may be difficult to detect when the species 1s wide-ranging: has small
B-5
-------
Endangered Species Consul tatlor Handbook—Novoter 1994
body size; finding a dead or Impaired specimen 1s unlikely; losses nay be
masked by seasonal fluctuations 1n numbers or other causes, (e.g., oxygen
depletions for aquatic species); or the species occurs 1n habitat (e.g.,
caves) that makes detection difficult]. However, the following level of take
of this species can be anticipated by loss [quantify] of (surrogate species,
food, cover, other essential habitat element such as water quantity or
quality, or symbiont) because: [provide an explanation].
Bald eagles: If incidental take of bald eagles 1s anticipated, document that
take, but add the following statement. [Note: This statement ends discussion
of bald eagles 1n the Incidental take statement.] The incidental take of bald
eagles is not authorized by the Bald and Golden Eagle Protection Act.
Therefore such take will not be authorized under this incidental take
statement.
EFFECT OF THE TAKE
The opinion 1s no jeopardy/no adverse modification: In the accompanying
biological opinion, the Service determined that this level of anticipated take
is not likely to result in jeopardy to the species or destruction or adverse
modification of critical habitat.
When the opinion contains reasonable and prudent alternatives: In the
accompanying biological opinion, the Service determined that this level of
anticipated take is not likely to result in jeopardy to the species or
destruction or adverse modification of critical habitat when (one of) the
reasonable and prudent alternatlve(s) is implemented.
REASONABLE AND PRUDENT MEASURES (as appropriate)
Introductory paragraph for reasonable and prudent measures for species other
than marine mammals: The Service believes the following reasonable and
prudent measure(s) are necessary and appropriate to minimize take: [Go on to
list these measures.]
For section 10(a)(1)(B) permits - HCPs - add the verbiage In parentheses for
cases where an implementing agreement 1s required to ensure that the terms of
the habitat conservation plan are carried out. Appropriate changes may be
made in the wording of the following paragraphs when consulting on any
subsequent amendments to the permit: Any incidental take of (species) must
comply with all the terms and conditions of the section 10(a)(1)(B) permit
(including the provisions of the Implementing Agreement).
Note: The Marine Hannal Protection Act Amendments of 1994 authorize incidental
take of marine mammals 1n the form of "harassment" for non-commercial fishing
activities, and permits for death/Injury Incidental take for commercial
fishing activities (without the Issuance of activity-specific regulations),
under certain circumstances. Regulations Implementing these amendments are
anticipated early 1n 1995. Further guidance on standardized statements for
these activities will be provided at that time.) (Standard paragraph for
Incidental take of marine mammals after area-specific or activity-specific
B-6
-------
Endangered Species Consultation Huvftnok—bovemter 1994
regulations have taken effect: Pursuant to section 101(a)(5) of the Marine
Mammal Protection Act, as amended in 1994, and implementing regulations at 50
CFR §18.27, the following measures are required to be consistent with the
total taking allowable under the area/activity specific regulations at 50 CFR
§18.27(_) [Insert appropriate citation] and to effect the least practical
adverse impact on the species and its habitat and on the availability of the
species for subsistence uses: [Cite measures Identified 1n specific
regulations and/or letters of authorization or permits for commercial
fishing.] Pursuant to section 7(b)(4) of the Endangered Species Act, the
following reasonable and prudent measures are necessary and appropriate to
minimize take:
[Go on to 11st the measures, followed by the standard paragraph for terms and
conditions.]
TERMS AND CONDITIONS
Introductory paragraph for terms and conditions: In order to be exempt from
the prohibitions of section 9 of ESA, the (agency) must comply with the
following terms and conditions, which implement the reasonable and prudent
measures described above. These terms and conditions are nondiscretionary.
[Go on to list these terms and conditions, Including the requirements for
monitoring, reporting, review, and disposition of any specimens.]
For section 10(a)(1)(B) permits - HCPs - add the verbiage 1n parentheses for
cases where an implementing agreement Is required to ensure that the terms of
the habitat conservation plan are carried out. Appropriate changes may be
made in the wording of the following paragraphs when consulting on any
subsequent amendments to the permit: A section 10(a)(1)(B) permit, as
evaluated in this biological opinion, must be issued by the Fish and Wildlife
Service. (The Implementing Agreement for the Habitat Conservation Plan for
the section 10(a)(1)(B) permit must be agreed to by the Fish and Wildlife
Service.)
Disposition paragraph for pesticide situations The U.S. Fish and Wildlife
Service (in the Region of the species' occurrence) must be notified by (action
agency) immediately of any dead or sick individuals found in or adjacent to
pesticide-treated areas. Cause of death or illness, if known, also should be
conveyed to these offices. [List appropriate Regional contact.]
The Service has provided a protocol for the handling of dead, injured or ill
listed species for pesticide analysis. When the (agency) suspects a species
has been taken in violation of label restrictions, the incident(s) shall be
reported to the U.S. Fish and Wildlife Service, Division of Law Enforcement or
their designee in the Region in which the species is found. Instructions for
proper handling and disposition of such specimens will be issued by the
Division of Law Enforcement. [Include Law Enforcement contacts for
appropriate Region(s).]
[The referenced protocol for pesticide situations can be found in Appendix F.]
B-7
-------
Endangered Species ConsulUttan Handxnfc—NovaAer 1994
Monitoring for pesticides (EPA or FDA): The agency shall monitor incidental
take to ensure compliance with anticipated take levels as required by 50 CFR
§402.14(i)(3). The Service believes that a label or bulletin requirement for
users to immediately report any dead or sick listed species found in or
adjacent to pesticide use areas would assist the (Environmental Protection
Agency/Food and Drug Administration) in meeting this requirement. Such a
requirement provides an incentive to the user to report such incidents to
remain exempt from section 9 taking provisions. However, the Service also
believes the agency should strengthen its information gathering base by
obtaining assistance from State or Federal wildlife or plant agencies, the
Extension Service, Department of Agriculture cooperatives or educational or
private organizations 1n reporting possible listed species take from
pesticides.
Review requirement: The reasonable and prudent measures, with their
implementing terms and conditions, are designed to minimize incidental take
that might otherwise result from the proposed action. With Implementation of
these measures the Service believes that no more than (number or extent) will
be incidentally taken. If, during the course of the action, this minimized
level of incidental take is exceeded, such incidental take would represent new
information requiring review of the reasonable and prudent measures provided.
The Federal agency must immediately provide an explanation of the causes of
the taking and review with the Service the need for possible modification of
the reasonable and prudent measures.
Closing statement for listed migratory birds: Notice: While the incidental
take statement provided in this consultation satisfies the requirements of the
Endangered Species Act, as amended, it does not constitute an exemption from
the prohibitions of take of listed migratory birds under the more restrictive
provisions of the Migratory Bird Treaty Act.
Closing statement for listed migratory birds: Notice: While the incidental
take statement provided in this consultation satisfies the requirements of the
Endangered Species Act, as amended, 1t does not constitute an exemption from
the prohibitions of take of listed migratory birds under the more restrictive
provisions of the Migratory Bird Treaty Act.
Closing paragraph for marine mamnals - Note: The Marine Manmal Protection Act
Amendments of 1994 authorize incidental take of marine manmals 1n the form of
"harassment" for non-conmercial fishing activities (without the issuance of
activity-specific regulations), and permits for death/injury incidental take
for commercial fishing activities under certain circumstances. Regulations
implementing these amendments are anticipated early in 1995. Further guidance
on standardized statements for these activities will be provided at that
time.) (Before area- or activity-specific regulations are promulgated: The
Service is not including an incidental take authorization for marine mammals
at this time because the regulations required for incidental take of marine
mammals in this specific area or for this activity have not been issued under
section 101(a)(5) of the Marine Mammal Protection Act and/or its 1994
Amendments. Following issuance of such regulations, the Service may amend
this biological opinion to include an incidental take statement for marine
mammals, as appropriate.
B-8
-------
Endangered Species Consultation Handbook—Novafcer 1994
CONFERENCE REPORT/CONFERENCE NOTICE (as appropriate)
CONSERVATION RECOMMENDATIONS
Introductory paragraph: Section 7(a)(1) of ESA directs Federal agencies to
utilize their authorities to further the purposes of ESA by carrying out
conservation programs for the benefit of endangered and threatened species.
Conservation recommendations are discretionary agency activities to minimize
or avoid adverse effects of a proposed action on listed species or critical
habitat, to help implement recovery plans, or to develop information.
Closing paragraph; In order for the Service to be kept Informed of actions
minimizing or avoiding adverse effects or benefitting listed species or their
habitats, the Service requests notification of the Implementation of any
conservation recommendations.
REINITIATION - CLOSING STATEMENT
This concludes formal consultation on the action(s) outlined in the
(request/reinitiation request). As provided 1n 50 CFR §402.16, reinitiation
of formal consultation Is required where discretionary Federal agency
involvement or control over the action has been maintained (or is authorized
by law) and if: (1) the amount or extent of incidental take is exceeded; (2)
new information reveals effects of the agency action that may affect listed
species or critical habitat in a manner or to an extent not considered in this
opinion; (3) the agency action is subsequently modified in a manner that
causes an effect to the listed species or critical habitat that was not
considered in this opinion; or (4) a new species 1s listed or critical habitat
designated that may be affected by the action. In instances where the amount
or extent of Incidental take 1s exceeded, any operations causing such take
must cease pending reinitiation.
LITERATURE CITED
B-9
-------
Endangered Species Consultation Handbook—Mounter 1994
Example of a letter sent to Inform action agencies the Service has received a
complete initiation package and will begin formal consultation on a proposed
action.
Dear :
This letter acknowledges the U.S. Fish and Wildlife Service's (Service) (date
of receipt of letter Initiating consultation) receipt of your (date of
agency's Initiating letter) letter requesting Initiation of formal section 7
consultation under the Endangered Species Act; The consultation concerns the
possible effects of your proposed [name and location of the action] on (name
of listed species and/or critical habitats affected).
All Information required of you to initiate consultation was either included
with your letter or is otherwise accessible for our consideration and
reference. We have assigned log number (log number) to this consultation.
Please refer to that number in future correspondence on this consultation.
Section 7 allows the Service up to 90 days to conclude formal consultation
with your agency and an additional 45 days to prepare our biological opinion
(unless we mutually agree to an extension). Therefore, we expect to provide
you with our biological opinion before (date 135 days after receipt of
initiation request).
As a reminder, the Endangered Species Act requires that after initiation of
formal consultation, the Federal action agency make no irreversible or
irretrievable commitment of resources that limits future options. This
practice insures agency actions do not preclude the formulation or
implementation of reasonable and prudent alternatives that avoid jeopardizing
the continued existence of endangered or threatened species or destroying or
modifying their critical habitats.
If you have any questions or concerns about this consultation or the
consultation process in general, please feel free to contact me or (name of
staff member] at [number).
Sincerely,
Field Supervisor
B-10
-------
Endangered Species Consultation Handbook—Novaober 1994
Example of a letter sent when a complete formal consultation request has not
been received.
Dear
The Fish and Wildlife Service has not received all of the Information
necessary to Initiate formal consultation on (name of the project) as outlined
1n the regulations governing Interagency consultations (50 CFR §402.14). To
complete the Initiation package, we will require the following Information:
1. [Outline the additional Information needs. Follow the general sequence and
use language that parallels 50 CFR §402.14(c) to Identify each piece of
Information.]
2. [etc.]
Until we receive all of the Information, or a statement explaining why that
Information cannot be made available, the formal consultation process for the
project does not begin. We will notify your office when we receive this
additional information; our notification letter will also outline the dates
within which formal consultation should be complete and the biological opinion
delivered on the proposed action.
If you have any questions or concerns about this consultation or the
consultation process in general, please feel free to call me at (number).
Sincerely,
Field Supervisor
B-ll
-------
Endangered Species Consultation Handbook—Noveaber 1994
Outline of a formal, stand-alone conference package. Including standardized
statements
Address
Dear. . .
Introductory paragraph: The U.S. F1sh and Wildlife Service (Service) has
reviewed the (project plans, permit application, etc.) for the following
activity (name or designation for the action} located in (County or State).
Your (date) request for formal conference was received on (date). This
document represents the Service's conference opinion on the effects of that
action on (species) in accordance with section 7 of the Endangered Species Act
of 1973, as amended, (16 U.S.C. 1531 et seq.).
This conference opinion is based on information provided 1n the (date)
biological assessment (or evaluation), the (date) draft environmental
assessment (or environmental impact statement), the (date) project proposal,
telephone conversations of (dates) with (names), field investigations, and
other sources of information. A complete administrative record of this
consultation is on file in (this office/elsewhere).
CONFERENCE HISTORY
CONFERENCE OPINION
DESCRIPTION OF PROPOSED ACTION
STATUS OF THE SPECIES (range wide)
ENVIRONMENTAL BASELINE (1n the action area)
Status of the Species
Effects of the Action
Cumulative Effects
Introduction: Cumulative effects include the effects of future State, local or
private actions that are reasonably certain to occur in the action area
considered in this conference opinion. Future Federal actions that are
unrelated to the proposed action are not considered in this section because
they require separate consultation pursuant to section 7 of ESA.
CONCLUSION
If no jeopardy/adverse modification: After reviewing the current status of
(species), the environmental baseline for the action area [use if different
from the range of the species], the effects of the proposed (action) and the
cumulative effects, it is the Service's conference opinion that the (action).
B-12
-------
Endangered Spec tea Consul tat ion Handbook—hwakr 1994
as proposed, (1s not likely to jeopardize the continued existence of the
proposed (species), and/or is not likely to destroy or adversely modify
proposed critical habitat).
In Jeopardy or adverse nod1f1cat1on opinions: Based on the foregoing
analysis, the Service concurs with the agency that the (proposed action) is
likely to (jeopardize the continued existence of the proposed species and/or
destroy or adversely modify the proposed critical habitat). While ESA does
not preclude an agency from taking an action with such adverse effects on a
proposed (species/critical habitat), the (agency) 1s reminded that if the
(species is listed/critical habitat 1s designated) prior to the completion of
the action or while (agency) still maintains any discretionary authority
relative to the action the (agency) will be required to insure against such
adverse effects. The (agency) may be required to modify or suspend the action
at that time pending resolution of the requirement to formally consult under
section 7. Consequently, the Service advises the (agency) to consider
implementing the following reasonable and prudent altematlve(s).
REASONABLE AND PRUDENT ALTERNATIVES (as appropriate)
Introductory paragraph: Regulations (50 CFR §402.02) implementing section 7
define reasonable and prudent alternatives as alternative actions, identified
during formal consultation, that (1) can be implemented in a manner consistent
with the intended purpose of the action, (2) can be implemented consistent
with the scope of the action agency's legal authority and jurisdiction, (3)
are economically and technologically feasible, and (4) would, the Service
believes, avoid the likelihood of (jeopardizing the continued existence of
proposed species and/or resulting in the destruction or adverse modification
of proposed critical habitat).
INCIDENTAL TAKE STATEMENT
Introductory paragraph: Sections 4(d) and 9 of ESA, as amended, prohibit
taking (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect, or attempt to engage in any such conduct) of listed species of fish
or wildlife without a special exemption. Harm is further defined to include
significant habitat modification or degradation that results in death or
injury to listed species by significantly impairing behavioral patterns such
as breeding, feeding, or sheltering. Harass is defined as actions that create
the likelihood of injury to listed species to such an extent as to
significantly disrupt normal behavior patterns which include, but are not
limited to, breeding, feeding or sheltering. Incidental take is any take of
listed animal species that results from, but is not the purpose of, carrying
out an otherwise lawful activity conducted by the Federal agency or the
applicant. Under the terms of section 7(b)(4) and section 7(o)(2), taking
that is incidental to and not intended as part of the agency action is not
considered a prohibited taking provided that such taking 1s 1n compliance with
the terms and conditions of this incidental take statement.
The measures described below are non-discretionary, and must be implemented by
B-13
-------
Endangered Species Consultation Handbook—*ova*er 1994
the agency, if this conference opinion is adopted as the biological opinion
issued through formal consultation, so that they become binding conditions of
any grant or permit issued to the applicant, as appropriate, in order for the
exemption in section 7(o)(2) to apply. The (agency) has a continuing duty to
regulate the activity covered by this incidental take statement. If the
(agency) (1) fails to require the applicant to adhere to the terms and
conditions of the incidental take statement through enforceable terms that are
added to the permit or grant document, and/or (2) fails to retain oversight to
ensure compliance with these terms and conditions, the protective coverage of
section 7(o)(2) may lapse.
If the conference opinion finds jeopardy or adverse nodlflcatlon without a
reasonable and prudent alternative, the Introductory statement is as follows:
As the conference opinion finds that the proposed action will result in
(likely jeopardy to the species/destruction or adverste modification of
critical habitat), and no reasonable and prudent alternative can be
identified, any Incidental taking 1s prohibited by section 9 of ESA.
Special provisions for plants, as appropriate: Sections 7(b)(4) and 7(o)(2)
of ESA do not apply to the incidental take of listed plant species. However,
protection of listed plants is provided to the extent that ESA requires a
Federal permit for removal or reduction to possession of endangered plants
from areas under Federal jurisdiction, or for any act that would remove, cut,
dig up, or damage or destroy any such species on any other area in knowing
violation of any regulation of any State or 1n the course of any violation of
a State criminal trespass law. [Include citations to appropriate State laws
if helpful.]
AMOUNT OR EXTENT OF TAKE
Incidental take statement when no take is anticipated: The Service does not
anticipate the proposed action will incidentally take any (species).
Incidental take statement where the conference opinion 1s jeopardy and
incidental take still is anticipated. For opinions with only one reasonable
and prudent alternative: The Service has developed the following incidental
take statement based on the premise that the reasonable and prudent
alternative will be implemented.
For opinions with more than one reasonable and prudent alternative, provide
separate estimates of anticipated take, reasonable and prudent measures and
terms and conditions, as appropriate: The Service has developed the following
incidental take statement based on the premise that the reasonable and prudent
alternative number XX will be implemented.
Introductory statement for amount and extent of take: The Service anticipates
(number of individuals of (species)) could be taken as a result of this
proposed action. Or the Service anticipates that individuals of (species)
could be taken as a result of this proposed action due to (describe extent of
relevant habitat degradation or disruption). The incidental take is expected
to be in the form of (harm, harass, kill, etc.). [Separately specify take
will be harm or harass or kill or some other form of take.]
B-34
-------
Endangered Species Consultation Handbook—Hovoter 1994
[Provide a concise summary of the analysis leading to this determination.]
OR
The Service anticipates incidental take of (species) will be difficult to
detect for the following reason(s): [Incidental take of actual species
numbers may be difficult to detect when the species Is wide-ranging; has small
body size; finding a dead or Impaired specimen 1s unlikely; losses may be
masked by seasonal fluctuations 1n numbers or other causes, (e.g., oxygen
depletions for aquatic species); or the species occurs 1n habitat (e.g.,
caves) that makes detection difficult]. However, the following level of take
of this species can be anticipated by loss [quantify] of (surrogate species,
food, cover, other essential habitat element such as water quantity or
quality, or symblont) because: [provide an explanation].
Bald eagles: If Incidental take of bald eagles 1s anticipated, document that
take, but add the following statement. [Note: This statement ends discussion
of bald eagles 1n the Incidental take statement.] The Incidental take of bald
eagles 1s not authorized by the Bald and Golden Eagle Protection Act.
Therefore such take will not be authorized by this incidental take statement.
EFFECT OF THE TAKE
The opinion 1s no jeopardy/no adverse modification: In the accompanying
conference opinion, the Service determined that this level of anticipated take
is not likely to result in jeopardy to the species or destruction or adverse
modification of critical habitat.
When the opinion contains reasonable and prudent alternatives: In the
accompanying conference opinion, the Service determined that this level of
anticipated take 1s not likely to result in jeopardy to the species or
destruction or adverse modification of critical habitat when (one of) the
reasonable and prudent alternative(s) is implemented.
REASONABLE AND PRUDENT MEASURES (as appropriate)
Introductory paragraph for reasonable and prudent measures for species other
than marine mammals: The Service believes the following reasonable and
prudent measure(s) are necessary and appropriate to minimize take: [Go on to
list these measures.]
TERMS AND CONDITIONS
Introductory paragraph for terms and conditions: In order to be exempt from
the prohibitions of section 9 of ESA, the (agency) must comply with the
following terms and conditions, which implement the reasonable and prudent
measures described above. These terms and conditions are nondlscretionary.
[Go on to 11st these terms and conditions, Including the requirements for
B-I5
-------
Endangered Species Consultation Handbook—November 1994
monitoring, reporting, review, and disposition of any specimens.]
Disposition paragraph for pesticide situations The U.S. Fish and Wildlife
Service (in the Region of the species' occurrence) must be notified by (action
agency) immediately of any dead or sick individuals found in or adjacent to
pesticide-treated areas. Cause of death or illness, if known, also should be
conveyed to these offices. [List appropriate Regional contact.]
The Service has provided a protocol for the handling of dead, injured or ill
listed species for pesticide analysis. When the (agency) suspects a species
has been taken in violation of label restrictions, the incident(s) shall be
reported to the U.S. Fish and Wildlife Service, Division of Law Enforcement or
their designee in the Region in which the species is found. Instructions for
proper handling and disposition of such specimens will be issued by the
Division of Law Enforcement. [Include Law Enforcement contacts for
appropriate Region(s).]
[The referenced protocol for pesticide situations can be found In Appendix F.]
Monitoring for pesticides (EPA or FDA): The agency shall monitor incidental
take to ensure compliance with anticipated take levels as required by 50 CFR
§402.14(i)(3). The Service believes that a label or bulletin requirement for
users to immediately report any dead or sick listed species found in or
adjacent to pesticide use areas would assist the (Environmental Protection
Agency/Food and Drug Administration) in meeting this requirement. Such a
requirement provides an incentive to the user to report such incidents to
remain exempt from section 9 taking provisions. However, the Service also
believes the agency should strengthen its information gathering base by
obtaining assistance from State or Federal wildlife or plant agencies, the
Extension Service, Department of Agriculture cooperatives or educational or
private organizations in reporting possible listed species take from
pesticides.
Review requirement: The reasonable and prudent measures, with their
implementing terms and conditions, are designed to minimize incidental take
that might otherwise result from the proposed action. With implementation of
these measures the Service believes that no more than (number or extent) will
be incidentally taken. If, during the course of the action, this minimized
level of incidental take is exceeded, such incidental take would represent new
information requiring review of the reasonable and prudent measures provided.
The Federal agency must immediately provide an explanation of the causes of
the taking and review with the Service the need for possible modification of
the reasonable and prudent measures.
Closing statement for listed migratory birds: Notice: While the incidental
take statement provided in this consultation satisfies the requirements of the
Endangered Species Act, as amended, it does not constitute an exemption from
the prohibitions of take of listed migratory birds under the more restrictive
provisions of the Migratory Bird Treaty Act.
B-16
-------
Endangered Species Consultation Handbook—Hovenfcer 1994
CONSERVATION RECOMMENDATIONS
Introductory paragraph: Section 7(a)(1) of ESA directs Federal agencies to
utilize their authorities to further the purposes of ESA by carrying out
conservation programs for the benefit of endangered and threatened species.
Conservation recommendations are discretionary agency activities to minimize
or avoid adverse effects of a proposed action on listed species or critical
habitat, to help implement recovery plans, or to develop information.
Closing paragraph; In order for the Service to be kept informed of actions
minimizing or avoiding adverse effects or benefitting listed species or their
habitats, the Service requests notification of the implementation of any
conservation recommendations.
REINITIATION - CLOSING STATEMENT
Closing statement for formal conferences: This concludes the conference for
(action). You may ask the Service to confirm the conference opinion as a
biological opinion issued through formal consultation if the (species is
listed or critical habitat is designated). The request must be in writing.
If the Service reviews the proposed action and finds that there have been no
significant changes in the action as planned or in the information used during
the conference, the Service will confirm the conference opinion as the
biological opinion on the project and no further section 7 consultation will
be necessary.
After (listing of the (species) as endangered/threatened and/or designation of
critical habitat for (species)j and any subsequent adoption of this conference
opinion, the Federal agency shall request reinitiation of consultation if: (1)
the amount or extent of incidental take is exceeded; (2) new information
reveals effects of the agency action that may affect the species or critical
habitat in a manner or to an extent not considered in this conference opinion;
(3) the agency action is subsequently modified in a manner that causes an
effect to the species or critical habitat that was not considered in this
conference opinion; or (4) a new species is listed or critical habitat
designated that may be affected by the action.
The incidental take statement provided in this conference opinion does not
become effective until the species 1s listed and the conference opinion is
adopted as the biological opinion issued through formal consultation. At that
time, the project will be reviewed to determine whether any take of the
(species) has occurred. Modifications of the opinion and incidental take
statement may be appropriate to reflect that take. No take of the (species)
may occur between the (listing of the (species)) and the adoption of the
conference opinion through formal consultation, or the completion of a
subsequent formal consultation.
LITERATURE CITED
B-17
-------
Endangered Species Consultation Handbook—Woveeber 1994
Outline of a formal conference Incorporated Into a fornal consultation
package. Including standardized statements
Address
Dear. . .
Introductory paragraph: The U.S. F1sh and Wildlife Service (Service) has
reviewed the (project plans, permit application, etc.) for the following
activity (name or designation for the action) located in (County or State).
Your (date) request was received on (date). This document represents the
Service's biological and conference opinions on the effects of that action on
the following listed and proposed species (species names) in accordance with
section 7 of the Endangered Species Act of 1973, as amended, (16 U.S.C. 1531
et seq.).
These biological and conference opinions are based on Information provided in
the (date) (biological assessment or evaluation), the (date) draft
(environmental assessment or environmental impact statement), the (date)
project proposal, telephone conversations of (dates) with (names), field
investigations, and other sources of information. A complete administrative
record of this consultation is on file in (this office/elsewhere).
CONSULTATION HISTORY
BIOLOGICAL AND CONFERENCE OPINIONS
DESCRIPTION OF PROPOSED ACTION
STATUS OF THE SPECIES (range wide and/or recovery unit)
Listed species/critical habitat:
Proposed species/critical habitat:
ENVIRONMENTAL BASELINE (1n the action area)
Status of the Species
Listed species/critical habitat:
Proposed species/critical habitat:
EFFECTS OF THE ACTION
Listed species/critical habitat:
Proposed species/critical habitat:
B-IS
-------
Endangered Species Consultation Handnofc—November 1994
CUMULATIVE EFFECTS
Cumulative effects include the effects of future State, local or private
actions that are reasonably certain to occur in the action area considered in
this biological opinion. Future Federal actions that are unrelated to the
proposed action are not considered in this section because they require
separate consultation pursuant to section 7 of ESA.
CONCLUSION
Listed species/critical habitat:
After reviewing the current status of (species), the environmental baseline
for the action area [use 1f different from the range of the species], the
effects of the proposed (action) and the cumulative effects, 1t 1s the
Service's biological opinion that the (action), as proposed, (1s/1s not)
likely to jeopardize the continued existence of the (species), and (is/Is not)
likely to destroy or adversely modify designated critical habitat. [If no
critical habitat has been designated for the species or the action will not
affect designated critical habitat, use one of the following statenents.] No
critical habitat has been designated for this species, therefore, none will be
affected. -OR- Critical habitat for this species has been designated at
(location), however, this action does not affect that area and no destruction
or adverse modification of that critical habitat 1s anticipated.
Proposed species/proposed critical habitat:
If no jeopardy/no adverse modification: After reviewing the current status of
(species), the environmental baseline for the action area [use if different
from the range of the species], the effects of the proposed (action) and the
cumulative effects, 1t is the Service's conference opinion that the (action),
as proposed, (is not likely to jeopardize the continued existence of the
proposed (species), and/or 1s not likely to destroy or adversely modify
proposed critical habitat).
In jeopardy or adverse modification opinions: Based on the foregoing analysis
the Service concurs with the agency that the (proposed action) is likely to
(jeopardize the continued existence of the proposed species and/or destroy or
adversely modify the proposed critical habitat). While ESA does not preclude
an agency from taking an action with such adverse effects on a proposed
(species/critical habitat), the (agency) is reminded that if the (species is
1isted/critical habitat is designated) prior to the completion of the action
or while (agency) still maintains any discretionary authority relative to the
action (agency) will be required to insure against such adverse effects. The
(agency) may be required to modify or suspend the action at that time pending
resolution of the requirement to formally consult under section 7.
Consequently, the Service advises the (agency) to consider implementing the
following reasonable and prudent alternative(s).
B-19
-------
Endangered Species Consultation Htnctnofc—November 1994
REASONABLE AND PRUDENT ALTERNATIVES (as appropriate)
Introductory paragraph: Regulations (50 CFR §402.02) Implementing section 7
define reasonable and prudent alternatives as alternative actions, identified
during formal consultation, that (1) can be implemented in a manner consistent
with the intended purpose of the action, (2) can be implemented consistent
with the scope of the action agency's legal authority and jurisdiction, (3)
are economically and technologically feasible, and (4) would, the Service
believes, avoid the likelihood of jeopardizing the continued existence of
listed and proposed species or resulting 1n the destruction or adverse
modification of designated or proposed critical habitat.
[Break out discussions for listed and proposed species/critical habitats
separately.]
Closing paragraph: Because this (biological and/or conference) opinion has
found (jeopardy/destruction or adverse modification of critical habitat), the
(agency) is required to notify the Service of its final decision on the
implementation of the reasonable and prudent alternatives.
INCIDENTAL TAKE STATEMENT
Introductory paragraph: Sections 4(d) and 9 of ESA, as amended, prohibit
taking (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect, or attempt to engage in any such conduct) of listed species of fish
or wildlife without a special exemption. Harm is further defined to include
significant habitat modification or degradation that results in death or
injury to listed species by significantly Impairing behavioral patterns such
as breeding, feeding, or sheltering. Harass is defined as actions that create
the likelihood of injury to listed species to such an extent as to
significantly disrupt normal behavior patterns which include, but are not
limited to, breeding, feeding or sheltering. Incidental take is any take of
listed animal species that results from, but is not the purpose of, carrying
out an otherwise lawful activity conducted by the Federal agency or the
applicant. Under the terms of section 7(b)(4) and section 7(o)(2), taking
that is incidental to and not intended as part of the agency action is not
considered a prohibited taking provided that such taking is in compliance with
the terms and conditions of this incidental take statement.
The measures described below are nondlscretionary, and must be implemented by
the agency so that they become binding conditions of any grant or permit
issued to the applicant, as appropriate, in order for the exemption in section
7(o)(2) to apply. The (agency) has a continuing duty to regulate the activity
covered by this incidental take statement. If the (agency) (1) fails to
require the applicant to adhere to the terms and conditions of the incidental
take statement through enforceable terms that are added to the permit or grant
document, and/or (2) fails to retain oversight to ensure compliance with these
terms and conditions, the protective coverage of section 7(o)(2) may lapse.
If the biological and/or conference opinion finds jeopardy or adverse
modification without a reasonable and prudent alternative, the introductory
B-20
-------
Endangered Species Consultation Handbook—Moveaber 1994
statement 1s as follows: As the (biological and/or conference) opinion finds
that the proposed action will result 1n (likely jeopardy to the
species/destruction or adverse modification of critical habitat), and no
reasonable and prudent alternative can be Identified, any Incidental taking is
prohibited by section 9 of ESA.
Special provisions for plants, as appropriate: Sections 7(b)(4) and 7(o)(2)
of ESA do not apply to the Incidental take of listed plant species. However,
protection of listed plants is provided to the extent that ESA requires a
Federal permit for removal or reduction to possession of endangered plants
from areas under Federal jurisdiction, or for any act that would remove, cut,
dig up, or damage or destroy any such species on any other area in knowing
violation of any regulation of any State or 1n the course of any violation of
a State criminal trespass law. [Include citations to appropriate State laws
1f helpful.]
AMOUNT OR EXTENT OF TAKE
[Break out discussions for listed and proposed species separately.]
Incidental take statement when no take 1s anticipated: The Service does not
anticipate that the proposed action will incidentally take any (species).
Incidental take statement where the biological and/or conference opinion 1s
jeopardy and Incidental take still 1s anticipated: (For opinions with only
one reasonable and prudent alternative): The Service has developed the
following incidental take statement based on the premise that the reasonable
and prudent alternative will be implemented.
(For opinions with more than one reasonable and prudent alternative, provide
separate estimates of anticipated take, reasonable and prudent measures and
terms and conditions, as appropriate): The Service has developed the
following incidental take statement based on the premise that the reasonable
and prudent alternative number XX will be implemented.
Introductory statement for amount and extent of take: The Service anticipates
(number of individuals of (species)) could be taken as a result of this
proposed action. Or the Service anticipates that individuals of (species)
could be taken as a result of this proposed action due to (describe extent of
relevant habitat degradation or disruption). The incidental take is expected
to be in the form of (harm, harass, kill, etc.). [Separately specify take
will be harm or harass or kill or some other form of take.]
[Provide a concise summary of the analysis leading to this determination.]
OR
The Service anticipates incidental take of (species) will be difficult to
detect for the following reason(s): [Incidental take of actual species numbers
may be difficult to detect when the species 1s wide-ranging; has small body
size; finding a dead or Impaired specimen 1s unlikely; losses may be masked by
B-21
-------
Endangered Species Consultation Handbook—Hoveaber 1994
seasonal fluctuations 1n numbers or other causes, (e.g., oxygen depletions for
aquatic species); or the species occurs in habitat (e.g., caves) that makes
detection difficult]. However, the following level of take of this species can
be anticipated by loss [quantify] of (surrogate species, food, cover, other
essential habitat element such as water quantity or quality, or symbiont)
because: [provide an explanation].
Bald eagles: If Incidental take of bald eagles is anticipated, document that
take, but add the following statement. [Note: This statement ends discussion
of bald eagles 1n the Incidental take statement.] The incidental take of bald
eagles 1s not authorized by the Bald and Golden Eagle Protection Act.
Therefore such take will not be authorized by this incidental take statement.
EFFECT OF THE TAKE
[Break out discussions for listed and proposed species separately.]
When the opinion is no jeopardy/no adverse modification: In the accompanying
(biological and/or conference) opinion, the Service determined that this level
of anticipated take is not likely to result in jeopardy to the species or
destruction or adverse modification of critical habitat.
When the opinion contains reasonable and prudent alternatives: In the
accompanying (biological and/or conference) opinion, the Service determined
that this level of anticipated take is not likely to result in jeopardy to the
species or destruction or adverse modification of critical habitat when (one
of) the reasonable and prudent alternative(s) is implemented.
REASONABLE AND PRUDENT MEASURES (as appropriate)
[Break out discussions for listed and proposed species separately.]
Introductory paragraph for reasonable and prudent measures for species other
than marine mammals: The Service believes the following reasonable and
prudent measure(s) are necessary and appropriate to minimize take: [Go on to
list these measures.]
Proposed species, add: The prohibitions against taking the species found in
section 9 of ESA do not apply until the species is listed. However, the
Service advises the (agency) to consider implementing the following reasonable
and prudent measures. If this conference opinion is adopted as a biological
opinion following a listing or designation, these measures, with their
implementing terms and conditions, will be nondiscretionary.
Section 10(a)(1)(B) permits - HCPs - Add the verbiage 1n parentheses for cases
where an implementing agreement 1s required to ensure that the terms of the
habitat conservation plan are carried out. Appropriate changes may be made 1n
the wording of the following paragraphs when consulting on any subsequent
amendments to the permit. Any incidental take of (species) must comply with
all the terms and conditions of the section 10(a)(1)(B) permit (including the
provisions of the Implementing Agreement).
B-22
-------
Endangerad Spec in Consultation Handbook—Novcatwr 1994
Standard paragraph for Incidental take of narlne mammals: [Note: The Marine
Manual Protection Act Amendments of 1994 authorize Incidental take of narlne
manuals In the form of "harassment" for non-coranerdal fishing activities,
(without the Issuance of activity-specific regulations), and permits for
death/Injury incidental take for commercial fishing activities under certain
circumstances. Regulations Implementing these amendments are anticipated
early 1n 1995. Further guidance on standardized statements for these
activities will be provided at that time.] After area-specific or activity-
specific regulations have taken effect: Pursuant to section 101(a)(5) of the
Marine Mammal Protection Act, as amended 1n 1994, and implementing regulations
at 50 CFR §18.27, the following measures are required to be consistent with
the total taking allowable under the area/activity specific regulations at 50
CFR §18.27(_) [Insert appropriate citation] and to effect the least practical
adverse impact on the species and Its habitat and on the availability of the
species for subsistence uses: [Cite measures Identified in specific
regulations and/or letters of authorization or permits for commercial
fishing]. Pursuant to section 7(b)(4) of the Endangered Species Act, the
following reasonable and prudent measures are necessary and appropriate to
minimize take:
[Go on to 11st the measures, followed by the standard paragraph for terms and
conditions.]
TERMS AND CONDITIONS
[Break out discussions for listed and proposed species separately.]
Introductory paragraph for terms and conditions: In order to be exempt from
the prohibitions of section 9 of ESA, the (agency) must comply with the
following terms and conditions, which implement the reasonable and prudent
measures described above. These terms and conditions are nondiscretionary.
[Go on to 11st these terms and conditions. Including requirements for
monitoring, reporting, review, and disposition of any specimens.]
Section 10(a)(1)(B) permits - HCPs - Add the verbiage In parentheses for cases
where an implementing agreement 1s required to ensure that the terms of the
habitat conservation plan are carried out. Appropriate changes may be made 1n
the wording of the following paragraphs when consulting on any subsequent
amendments to the permit. A section 10(a)(1)(B) permit, as evaluated in this
conference opinion, must be agreed to by the Fish and Wildlife Service. (The
Implementing Agreement for the Habitat Conservation Plan for the section
10(a)(1)(B) permit must be agreed to by the Fish and Wildlife Service.)
Disposition paragraph for pesticide situations: The U.S. Fish and Wildlife
Service (1n the Region of the species' occurrence) must be notified by (action
agency) immediately of any dead or sick individuals found in or adjacent to
pesticide-treated areas. Cause of death or illness, if known, also should be
conveyed to these offices. [List appropriate Regional contact].
B-23
-------
Endangered Species Consultatton Handbook—November 1994
The Service has provided a protocol for the handling of dead, injured or ill
listed species for pesticide analysis. When the (agency) suspects a species
has been taken in violation of label restrictions, the incident(s) shall be
reported to the U.S. Fish and Wildlife Service, Division of Law Enforcement or
their designee in the Region in which the species is found. Instructions for
proper handling and disposition of such specimens will be issued by the
Division of Law Enforcement. [Include Law Enforcement contacts for
appropriate Reg1on(s).]
[The referenced protocol for pesticide situations can be found 1n Appendix F.]
Monitoring for pesticides (EPA or FDA): The agency shall monitor incidental
take to ensure compliance with anticipated take levels as required by 50 CFR
§402.14(1)(3). The Service believes that a label or bulletin requirement for
users to immediately report any dead or sick listed species found in or
adjacent to pesticide use areas would assist the (Environmental Protection
Agency/Food and Drug Administration) in meeting this requirement. Such a
requirement provides an incentive to the user to report such incidents to
remain exempt from section 9 taking provisions. However, the Service also
believes the agency should strengthen its information gathering base by
obtaining assistance from State or Federal wildlife or plant agencies, the
Extension Service, Department of Agriculture cooperatives or educational or
private organizations in reporting possible listed species take from
pesticides.
Review requirement: The reasonable and prudent measures, with their
implementing terms and conditions, are designed to minimize incidental take
that might otherwise result from the proposed action. With implementation of
these measures the Service believes that no more than (number or extent) will
be incidentally taken. If, during the course of the action, this minimized
level of incidental take is exceeded, such incidental take would represent new
information requiring review of the reasonable and prudent measures provided.
The Federal agency must immediately provide an explanation of the causes of
the taking and review with the Service the need for possible modification of
the reasonable and prudent measures.
Closing statement (for migratory birds and marine mammals)
Closing statement for listed migratory birds: Notice: While the incidental
take statement provided in this consultation satisfies the requirements of the
Endangered Species Act, as amended, it does not constitute an exemption from
the prohibitions of take of listed migratory birds under the more restrictive
provisions of the Migratory Bird Treaty Act.
Standard paragraph for incidental take of marine mammals: [Note: The Marine
Mammal Protection Act Amendments of 1994 authorize Incidental take of marine
mammals 1n the form of "harassment" for non-commercial fishing activities,
(without the issuance of activity-specific regulations), and permits for
death/injury incidental take for commercial fishing activities under certain
B-24
-------
Endangered Specie* Consultatton Handbook—lovater 1994
circumstances. Regulations Implementing these amendments are anticipated
early 1n 1995. Further guidance on standardized statements for these
activities will be provided at that tine.] Before area- or activity-specific
regulations are promulgated: The Service 1s not Including an Incidental take
authorization for marine mammals at this time because the regulations required
for incidental take of marine mammals 1n this specific area or for this
activity have not been issued under section 101(a)(5) of the Marine Mammal
Protection Act and/or Its 1994 Amendments. Following Issuance of such
regulations, the Service may amend this biological opinion to Include an
incidental take statement for marine mammals, as appropriate.
CONSERVATION RECOMMENDATIONS
Introductory paragraph: Section 7(a)(1) of ESA directs Federal agencies to
utilize their authorities to further the purposes of ESA by carrying out
conservation programs for the benefit of endangered and threatened species.
Conservation recommendations are discretionary agency activities to minimize
or avoid adverse effects of a proposed action on listed species or critical
habitat, to help implement recovery plans, or to develop information.
Closing paragraph: In order for the Service to be kept Informed of actions
minimizing or avoiding adverse effects or benefitting listed species or their
habitats, the Service requests notification of the implementation of any
conservation recommendations.
REINITIATION - CLOSING STATEMENT
This concludes formal consultation and conference on the action(s) outlined in
the (request/reinitiation request). As provided in 50 CFR §402.16,
reinitiation of formal consultation is required where discretionary Federal
agency involvement or control over the action has been maintained (or is
authorized by law) and if: (1) the amount or extent of incidental take is
exceeded; (2) new information reveals effects of the agency action that may
affect listed species or critical habitat in a manner or to an extent not
considered in this opinion; (3) the agency aciion is subsequently modified 1n
a manner that causes an effect to the listed species or critical habitat that
was not considered in this opinion; or (4) a new species is listed or critical
habitat designated that may be affected by the action. In instances where the
amount or extent of incidental take 1s exceeded, any operations causing such
take must cease pending reinitiation.
You may ask the Service to adopt the conference opinion incorporated in this
consultation as a biological opinion issued through formal consultation if the
(species is listed/critical habitat 1s designated). The request must be in
writing. If the Service reviews the proposed action and finds that there have
been no significant changes in the action as planned or in the information
used during the conference, the Service will adopt the conference opinion as
the biological opinion on the project and no further section 7 consultation
B-25
-------
Endangered Species Consultation Handbook—Hoveater 1994
will be necessary.
After (listing of the (species) as endangered/threatened and/or designation of
critical habitat for (species)) and any subsequent adoption of this conference
opinion, the (agency) shall request reinitiation of consultation if: (1) the
amount or extent of incidental take is exceeded; (2) new information reveals
effects of the agency action that nay affect the species or critical habitat
in a manner or to an extent not considered in this conference opinion; (3) the
agency action is subsequently modified In a manner that causes an effect to
the species or critical habitat that was not considered 1n this conference
opinion; or (4) a new species is listed or critical habitat designated that
may be affected by the action.
The Incidental take statement provided with this conference opinion does not
become effective until the species Is listed and the conference opinion is
adopted as the biological opinion issued through formal consultation. At that
time, the project will be reviewed to determine whether any take of the
(species) has occurred. Modifications of the opinion and Incidental take
statement may be appropriate to reflect that take. No take of the (species)
may occur between the (listing of the (species) and the adoption of the
conference opinion through formal consultation, or the completion of a
subsequent formal consultation.
LITERATURE CITED
B-26
-------
I
Endangered Species Consul tat ton Handbook—Mnm^mi 1994
Outline of an early consultation package. Including standardized statements
Address
Dear. . .
Introductory paragraph: The U.S. F1sh and Wildlife Service (Service) has
reviewed the (project plans, permit application, etc.) for th* following
activity (name or designation for the action) located 1n (County or State).
Your (date) request was received on (date). This document represents the
Service's preliminary biological opinion on the effects of that action on
(species) in accordance with section 7 of the Endangered Species Act of 1973,
as amended (16 U.S.C. 1531 et seq.).
This preliminary biological opinion Is based on Information provided 1n the
(date) biological assessment (or evaluation), the (date) draft environmental
assessment (or environmental impact statement), the (date) project proposal,
telephone conversations of (dates) with (names), field Investigations, and
other sources of Information. A complete administrative record of this
consultation is on file in (this office/elsewhere).
CONSULTATION HISTORY
PRELIMINARY BIOLOGICAL OPINION
DESCRIPTION OF PROPOSED ACTION
STATUS OF THE SPECIES (range wide and/or recovery unit)
ENVIRONMENTAL BASELINE (in the action area)
Status of the Species
Effects of the Action
Cumulative Effects
Introductory paragraph: Cumulative effects include the effects of future
State, local or private actions that are reasonably certain to occur in the
action area considered in this preliminary biological opinion. Future Federal
actions that are unrelated to the proposed action are not considered in this
section because they require separate consultation pursuant to section 7 of
ESA.
PRELIMINARY CONCLUSION
After reviewing the current status of (species), the environmental baseline
for the action area [use 1f different from the range of the species], the
effects of the proposed (action) and the cumulative effects, it is the
B-27
-------
Endangered Species Consultation Handbook—Hovober 1994
Service's preliminary biological opinion that the (action), as proposed,
(is/is not) likely to jeopardize the continued existence of the (species), and
(is/is not) likely to destroy or adversely modify designated critical habitat.
[If no critical habitat has been designated for the species or the action will
not affect designated critical habitat, use one of the following statements.]
No critical habitat has been designated for this species, therefore, none will
be affected. -OR- Critical habitat for this species has been designated at
(location), however, this action does not affect that area and no destruction
or adverse modification of that critical habitat is anticipated.
REASONABLE AND PRUDENT ALTERNATIVES (as appropriate)
Introductory paragraph: Regulations (50 CFR §402.02) implementing section 7
define reasonable and prudent alternatives as alternative actions, identified
during consultation, that (I) can be implemented in a manner consistent with
the intended purpose of the action, (2) can be implemented consistent with the
scope of the action agency's legal authority and jurisdiction, (3) are
economically and technologically feasible, and (4) would, the Service
believes, avoid the likelihood of jeopardizing the continued existence of
listed species or resulting in the destruction or adverse modification of
critical habitat.
Closing paragraph: Because this preliminary biological opinion has found
(jeopardy/destruction or adverse modification of critical habitat), the
(agency) is required to notify the Service of its final decision on the
implementation of the reasonable and prudent alternatives if this preliminary
biological opinion is later confirmed as a final biological opinion.
INCIDENTAL TAKE STATEMENT
Introductory paragraph: Sections 4(d) and 9 of ESA, as amended, prohibit
taking (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect, or attempt to engage in any such conduct) of listed species of fish
or wildlife without a special exemption. Harm is further defined to include
significant habitat modification or degradation that results in death or
injury to listed species by significantly impairing behavioral patterns such
as breeding, feeding, or sheltering. Harass is defined as actions that create
the likelihood of injury to listed species to such an extent as to
significantly disrupt normal behavior patterns which include, but are not
limited to, breeding, feeding or sheltering. Incidental take is any take of
listed animal species that results from, but is not the purpose of, carrying
out an otherwise lawful activity conducted by the Federal agency or the
applicant. Under the terms of section 7(b)(4) and section 7(o)(2), taking
that is incidental to and not intended as part of the agency action is not
considered a prohibited taking provided that such taking is in compliance with
the terms and conditions of this incidental take statement.
The measures described below are non-discretionary, and must be implemented by
the agency, if this preliminary biological opinion is confirmed through formal
B-28
-------
Endangered Specie* Consultation Handbook—Uovoriwr 1994
consultation, so that they become binding conditions of any grant or permit
issued to the applicant, as appropriate, in order for the exemption 1n section
7(o)(2) to apply. The (agency) has a continuing duty to regulate the activity
covered by this Incidental take statement. If the (agency) (1) fails to
require the applicant to adhere to the terms and conditions of the incidental
take statement through enforceable terms that are added to the permit or grant
document, and/or (2) fails to retain oversight to ensure compliance with these
terms and conditions, the protective coverage of section 7(o)(2) may lapse.
If the preliminary biological opinion finds jeopardy or adverse modification
without a reasonable and prudent alternative, the Introductory statement Is as
follows: As the preliminary biological opinion finds that the proposed action
will result in (likely jeopardy to the species/destruction or adverse
modification of critical habitat), and no reasonable and prudent alternative
can be Identified, any incidental taking is prohibited by section 9 of ESA.
Special provisions for plants, as appropriate: Sections 7(b)(4) and 7(o)(2)
of ESA do not apply to the incidental take of listed plant species. However,
protection of listed plants is provided to the extent that ESA requires a
Federal permit for removal or reduction to possession of endangered plants
from areas under Federal jurisdiction, or for any act that would remove, cut,
dig up, or damage or destroy any such species on any other area 1n knowing
violation of any regulation of any State or in the course of any violation of
a State criminal trespass law. [Include citations to appropriate State laws
1f helpful.]
AMOUNT OR EXTENT OF TAKE
Incidental take statement when no take 1s anticipated: The Service does not
anticipate that the proposed action will incidentally take any (species).
Incidental take statement where the biological opinion Is jeopardy and
incidental take still 1s anticipated: (For opinions with only one reasonable
and prudent alternative): The Service has developed the following incidental
take statement based on the premise that the reasonable and prudent
alternative will be implemented.
(For opinions with more than one reasonable and prudent alternative, provide
separate estimates of anticipated take, reasonable and prudent measures and
terms and conditions, as appropriate): The Service has developed the
following incidental take statement based on the premise that the reasonable
and prudent alternative number XX will be implemented.
Introductory statement for amount and extent of take: The Service anticipates
(number of individuals of (species)) could be taken as a result of this
proposed action. Or the Service anticipates that Individuals of (species)
could be taken as a result of this proposed action due to (describe extent of
relevant habitat degradation or disruption). The Incidental take is expected
to be 1n the form of (harm, harass, kill, etc.). [Separately specify take
B-29
-------
Endangered Species Consultation Handbook—Koveeber 1994
will be harm or harass or kill or some other form of take.]
[Provide a concise sunnary of the analysis leading to this determination.]
OR
The Service anticipates incidental take of (species) will be difficult to
detect for the following reason(s): [Incidental take of actual species'
numbers may be difficult to detect when the species Is wide-ranging; has small
body size; finding a dead or impaired specimen 1s unlikely; losses may be
masked by seasonal fluctuations In numbers or other causes, (e.g., oxygen
depletions for aquatic species); or the species occurs 1n habitat (e.g.,
caves) that makes detection difficult]. However, the following level of take
of this species can be anticipated by loss [quantify] of (surrogate species,
food, cover, other essential habitat element such as water quantity or
quality, or symbiont) because: [provide an explanation].
Bald eagles: If Incidental take of bald eagles 1s anticipated, document that
take, but add the following statement. [Note: This statement ends discussion
of bald eagles 1n the Incidental take statement.] The incidental take of bald
eagles is not authorized by the Bald and Golden Eagle Protection Act.
Therefore such take will not be authorized by this incidental take statement.
EFFECT OF THE TAKE
The opinion is no jeopardy/no adverse modification: In the accompanying
preliminary biological opinion, the Service determined that this level of
anticipated take is not likely to result in jeopardy to the species or
destruction or adverse modification of critical habitat.
The opinion contains reasonable and prudent alternatives: In the accompanying
preliminary biological opinion, the Service determined that this level of
anticipated take is not likely to result 1n jeopardy to the species or
destruction or adverse modification of critical habitat when (one of) the
reasonable and prudent alternative(s) is implemented.
REASONABLE AND PRUDENT MEASURES (as appropriate)
Standardized introductory paragraph for reasonable and prudent measures for
species other than marine mammals: The Service believes the following
reasonable and prudent measure(s) are necessary and appropriate to minimize
take: [Go on to list these measures.]
Standard paragraph for incidental take of marine mammals: [Note: The Marine
Mammal Protection Act Amendments of 1994, authorize Incidental take of marine
mammals in the form of "harassment" for non-commercial fishing activities,
(without the issuance of activity-specific regulations), and permits for
death/injury incidental take for commercial fishing activities under certain
circumstances. Regulations implementing these amendments are anticipated
8-30
-------
Endangered Species Consultation Handbook—Hiwwtoi 1994
early 1n 1995. Further guidance on standardized statements for these
activities will be provided at that tine.] After area-specific or activity-
specific regulations have taken effect: Pursuant to section 101(a)(5) of the
Marine Mammal Protection Act, as amended 1n 1994, and implementing regulations
at 50 CFR §18.27, the following measures are required to be consistent with
the total taking allowable under the area/activity specific regulations at 50
CFR §18.27(_) [insert appropriate citation] and to effect the least practical
adverse implct on the species and Its habitat and on the availability of the
species for subsistence uses: [Cite neasures Identified 1n specific
regulations and/or letters of authorization or permits for coanerclal
fishing]. Pursuant to section 7(b)(4) of the Endangered Species Act, the
following reasonable and prudent measures are necessary and appropriate to
minimize take:
[6o on to 11st the measures, followed by the standard paragraph for terms and
conditions.]
TERMS AND CONDITIONS
Introductory paragraph for terms and conditions: In order to be exempt from
the prohibitions of section 9 of ESA, the (agency) must comply with the
following terms and conditions, which Implement the reasonable and prudent
measures described above. These terms and conditions are nondiscretionary.
[Go on to 11st these terms and conditions. Including requirements for
monitoring, reporting, review, and disposition of any specimens.]
Disposition paragraph for pesticide situations: The U.S. Fish and Wildlife
Service (1n the Region of the species' occurrence) must be notified by (action
agency) immediately of any dead or sick Individuals found in or adjacent to
pesticide-treated areas. Cause of death or illness, 1f known, also should be
conveyed to these offices. [List appropriate Regional contact].
The Service has provided a protocol for the handling of dead, injured or ill
listed species for pesticide analysis. When the (agency) suspects a species
has been taken in violation of label restrictions, the incident(s) shall be
reported to the U.S. Fish and Wildlife Service, Division of Law Enforcement or
their designee in the Region in which the species is found. Instructions for
proper handling and disposition of such specimens will be issued by the
Division of Law Enforcement. [Include Law Enforcement contacts for
appropriate Reg1on(s).]
[The referenced protocol for pesticide situations can be found In Appendix F.]
Monitoring for pesticides (EPA or FDA): The agency shall monitor incidental
take to ensure compliance with anticipated take levels as required by 50 CFR
§402.14(i)(3). The Service believes that a label or bulletin requirement for
users to immediately report any dead or sick listed species found in or
adjacent to pesticide use areas would assist the (Environmental Protection
Agency/Food and Drug Administration) in meeting this requirement. Such a
B-31
-------
Endangered Species Consultation Hmdiook—Miimdxii 1994
requirement provides an incentive to the user to report such incidents to
remain exempt from section 9 taking provisions. However, the Service also
believes the agency should strengthen its information gathering base by
obtaining assistance from State or Federal wildlife or plant agencies, the
Extension Service, Department of Agriculture cooperatives or educational or
private organizations in reporting possible listed species take from
pesticides.
Review requirement: The reasonable and prudent measures, with their
implementing terms and conditions, are designed to minimize incidental take
that might otherwise result from the proposed action. With implementation of
these measures the Service believes that no more than (number or extent) will
be incidentally taken. If, during the course of the action, this minimized
level of incidental take is exceeded, such incidental take would represent new
information requiring review of the reasonable and prudent measures provided.
The Federal agency must immediately provide an explanation of the causes of
the taking and review with the Service the need for possible modification of
the reasonable and prudent measures.
Closing statement
If take is anticipated: Because the proposed action is likely to have adverse
effects on listed species, the Service has included an incidental take
statement pursuant to section 7(b)(4) of ESA. However, because this is an
early consultation on the prospective action, this incidental take statement
does not eliminate the (agency)'s liability under the taking prohibitions of
section 9 of ESA. Instead, this statement provides your agency with
foreknowledge of the terms and conditions that would be required if this
prospective application is filed with your agency. These reasonable and
prudent measures and implementing terms and conditions become effective only
after the Service confirms the preliminary biological opinion as a final
biological opinion on the prospective action.
Closing statement for listed migratory birds: Notice: While the incidental
take statement provided in this consultation satisfies the requirements of the
Endangered Species Act, as amended, it does not constitute an exemption from
the prohibitions of take of listed migratory birds under the more restrictive
provisions of the Migratory Bird Treaty Act.
Standard paragraph for incidental take of marine mammals: [Note: The Marine
Mammal Protection Act Amendments of 1994 authorize incidental take of marine
mammals in the form of "harassment" for non-commercial fishing activities,
(without the issuance of activity-specific regulations), and permits for
death/injury incidental take for commercial fishing activities under certain
circumstances. Regulations implementing these amendments are anticipated
early in 1995. Further guidance on standardized statements for these
activities will be provided at that time. Before area- or activity-specific
regulations are promulgated: The Service is not including an incidental take
authorization for marine mammals at this time because the regulations required
for incidental take of marine mammals in this specific area or for this
B-32
-------
Endangered Species Consultation Handbook—Hovt^wr 1994
activity have not been issued under section 101(a)(5) of the Marine Mammal
Protection Act and/or its 1994 Amendments. Following issuance of such
regulations, the Service may amend this biological opinion to include an
incidental take statement for marine mammals, as appropriate.
CONFERENCE REPORT/CONFERENCE NOTICE (as appropriate)
CONSERVATION RECOMMENDATIONS
Introductory paragraph: Section 7(a)(1) of ESA directs Federal agencies to
utilize their authorities to further the purposes of ESA by carrying out
conservation programs for the benefit of endangered and threatened species.
Conservation recommendations are discretionary agency activities to minimize
or avoid adverse effects of a proposed action on listed species or critical
habitat, to help implement recovery plans, or to develop information.
Closing paragraph: In order for the Service to be kept informed of actions
minimizing or avoiding adverse effects or benefitting listed species or their
habitats, the Service requests notification of the implementation of any
conservation recommendations.
REINITIATION - CLOSING STATEMENT
This concludes early consultation for (action). You may ask the Service to
confirm this preliminary biological opinion as a final biological opinion on
the prospective action once you receive the permit application from the
prospective applicant. The request must be in writing. If the Service
reviews the proposed action and finds that there are no significant changes in
the action as planned or in the information used during the early
consultation, it will confirm the preliminary biological opinion as a final
biological opinion on the project and no further section 7 consultation will
be necessary except when one of the following criteria for reinitiation are
met: (1) the amount or extent of incidental take is exceeded; (2) new
information reveals effects of the agency action that may affect listed
species or critical habitat in a manner or to an extent not considered in this
opinion; (3) the agency action is subsequently modified in a manner that
causes an effect to the listed species or critical habitat that was not
considered in this opinion; or (4) a new species is listed or critical habitat
designated that may be affected by the action. In instances where the amount
or extent of incidental take is exceeded, any operations causing such take
must cease pending reinitiation.
If the Service does not confirm this preliminary biological opinion as a final
biological opinion on the prospective action, the (agency) is required to
initiate formal consultation with the Service.
LITERATURE CITED
B-33
-------
Endangered Species Consultation Handbook—Novater 1994
A sample letter to prospective applicants about early consultation rights.
Dear :
This responds to your letter of , , concerning the upcoming
proposed experimental use of . This agricultural chemical
was previously used 1n (State) under the U.S. Environmental Protection
Agency's (EPA) Experimental Use Permit (EUP) -EUP- .
We have enclosed a general list of all endangered, threatened, and proposed
species in (State), organized by county, for planning purposes. When specific
test plots have been designated, EPA should consult with this office pursuant
to section 7(a)(2) of the Endangered Species Act of 1973, as amended, prior to
the issuance of the EUP for .
The enclosed list constitutes technical assistance only. It does not fulfill
EPA's requirements pursuant to section 7 of the Endangered Species Act of
1973, as amended; only EPA or their non-Federal designee can fulfill those
requirements. By copy of this letter, EPA's Office of Pesticide Programs is
being made aware of their responsibility to consult with the Fish and Wildlife
Service to insure that any action it authorizes, funds, or carries out is not
likely to jeopardize the continued existence of listed species or result in
destruction or adverse modification of critical habitat. We hope the
resulting dialogue between EPA and the Service will provide registrants and
permittees with better guidance on compliance with the Endangered Species Act.
If EPA chooses not to consult, the Service cannot be certain that EPA, and
your project, has complied with the provisions of the Endangered Species Act.
Nevertheless, you should be aware that, pursuant to Section 7(a)(3) of the
Endangered Species Act, you have certain rights as an applicant for a Federal
permit or license. Section 7(a)(3) and implementing regulations at 50 C.F.R.
§402.11 establish a process called "early consultation", which was
specifically designed to reduce the likelihood of conflicts between listed
species or critical habitat and prospective actions such as yours. Although
the consultation would be between EPA and the Service, your office can be
involved throughout the early consultation process.
Copies of the specific regulations pertaining to early consultations are
enclosed. If you have reason to believe that your proposal, which will
eventually be included in an application for Federal agency approval, may
affect listed species or critical habitat, you can ask the Federal agency
issuing a permit or license (in this case it is EPA) to enter into early
consultation with the Service.
Your request must be in writing and must certify that: (1) you have a
definitive proposal outlining your action and its effects, and (2) that you
intend to carry out your proposal if it is authorized. When EPA receives your
proposal, they are required by the Endangered Species Act to initiate early
consultation with the Service.
B-34
-------
Endangered Species Consultation Hendeok—«ova*er 1994
If you have questions regarding our comments, please contact (Biologist) at
B-35
-------
Endangered Species Consultation Handbook—1994
Outline of an emergency consultation package, Including standardized
statements
Address
Dear. . .
Introductory statement: The U.S. Fish and Wildlife Service (Service) has
reviewed the (name or designation for the action) located In (County or
State). Your (date) request was received on (date). This document represents
the Service's emergency consultation on the effects of that action on
(species) In accordance with section 7 of the Endangered Species Act of 1973,
as amended, (16 U.S.C. 1531 et seq.).
This biological opinion 1s based on Information provided In the (date)
biological assessment (or evaluation), the (date) draft environmental
assessment (or environmental Impact statement), the (date) project proposal,
telephone conversations of (dates) with (names), field Investigations, and
other sources of Information. A complete administrative record of this
consultation is on file In (this office/elsewhere).
CONSULTATION HISTORY
BIOLOGICAL OPINION
DESCRIPTION OF PROPOSED ACTION
STATUS OF THE SPECIES (range wide and/or recovery unit)
ENVIRONMENTAL BASELINE (1n the action area)
Status of the Species
Effects of the Action
[Document previous Service recommendations]
Cumulative Effects
Cumulative effects include the effects of future State, local or private
actions that are reasonably certain to occur in the action area considered in
this biological opinion. Future Federal actions that are unrelated to the
proposed action are not considered in this section because they require
separate consultation pursuant to section 7 of ESA.
CONCLUSION
After reviewing the current status of (species), the environmental baseline
for the action area [use if different from the range of the species], the
B-36
-------
Endangered Species Consultation Handbook—November 1994
effects of the (action) and the cumulative effects, it is the Service's
biological opinion that the (action), as implemented, (is/is not) likely to
jeopardize the continued existence of the (species), and (is/is not) likely to
destroy or adversely modify designated critical habitat. [If no critical
habitat has been designated for the species or the action will not affect
designated critical habitat, use one of the following statements.] No
critical habitat has been designated for this species, therefore, none will be
affected. -OR- Critical habitat for this species has been designated at
(location), however, this action does not affect that area and no destruction
or adverse modification of that critical habitat Is anticipated.
REASONABLE AND PRUDENT ALTERNATIVES (as appropriate)
[Include only 1f further action can restore/enhance species/critical habitat
to a level below the jeopardy/adverse modification threshold.]
Introductory paragraph: Regulations (50 CFR §402.02) implementing section 7
define reasonable and prudent alternatives as alternative actions, identified
during formal consultation, that (1) can be implemented in a manner consistent
with the intended purpose of the action, (2) can be implemented consistent
with the scope of the action agency's legal authority and jurisdiction, (3)
are economically and technologically feasible, and (4) would, the Service
believes, avoid the likelihood of jeopardizing the continued existence of
listed species or resulting in the destruction or adverse modification of
critical habitat.
INCIDENTAL TAKE STATEMENT
Introductory paragraph: Sections 4(d) and 9 of ESA, as amended, prohibit
taking (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect, or attempt to engage in any such conduct) of listed species of fish
or wildlife without a special exemption. Harm is further defined to include
significant habitat modification or degradation that results in death or
injury to listed species by significantly impairing behavioral patterns such
as breeding, feeding, or sheltering. Harass is defined as actions that create
the likelihood of injury to listed species to such an extent as to
significantly disrupt normal behavior patterns which include, but are not
limited to, breeding, feeding or sheltering. Incidental take is any take of
listed animal species that results from, but is not the purpose of, carrying
out an otherwise lawful activity conducted by the Federal agency or the
applicant. Under the terms of section 7(b)(4) and section 7(o){2), taking
that is incidental to and not intended as part of the agency action is not
considered a prohibited taking provided that such taking is in compliance with
the terms and conditions of this incidental take statement.
Standardized statements for Incidental take in emergencies: Successful
implementation of Service recommendation: On (date), the Service provided the
(agency) with the following measures for minimizing the take of
(species/habitat): [describe measures provided - or reference, 1f documented
earlier 1n the consultation]. As the (agency) implemented those measures in
B-37
-------
Endangered Species Consul tat tan Handbook—Navster 1994
Its response to the emergency, the requirements for exemption from the taking
provisions of section 9 have been met.
Partial success: On (date), the Service provided the (agency) with the
following measures for minimizing the take of (species/habitat): [describe
measures provided - or reference, 1f documented earlier In the consultation].
To the extent that the (action agency) Implemented those measures 1n Its
response to the emergency, the requirements for exemption from the taking
provisions of section 9 have been met. Any take resulting from Incomplete
compliance with measures provided by the Service 1s not covered by the
exemption.
No prior contact or the agency failed to Implement the neasures provided: As
the (agency) (did not contact the Service to determine the measures to be
taken or failed to Implement the measures necessary to minimize take of)
(species/habitat) during the response to the emergency, any take resulting
from the response action does not constitute an exempted take under section 9
of ESA.
CONFERENCE REPORT/CONFERENCE NOTICE (as appropriate)
CONSERVATION RECOMMENDATIONS
Include recommendations that may help protect listed species and their
habitats 1n future emergency situations or initiate beneficial actions that
can be taken to conserve the species.
Introductory paragraph: Section 7(a)(1) of ESA directs Federal agencies to
utilize their authorities to further the purposes of ESA by carrying out
conservation programs for the benefit of endangered and threatened species.
Conservation recommendations are discretionary agency activities to minimize
or avoid adverse effects of a proposed action on listed species or critical
habitat, to help implement recovery plans, or to develop information.
Closing paragraph: In order for the Service to be kept informed of actions
minimizing or avoiding adverse effects or benefitting listed species or their
habitats, the Service requests notification of the implementation of any
conservation recommendations.
REINITIATION - CLOSING STATEMENT ¦ none, 1f discretionary Federal agency
Involvement has terminated
LITERATURE CITED
B-38
-------
Endangered Species Consultation Handbook—Kovecfcer 1994
Emergency consultation notification memorandum to the Regional Office
(optional)
Memorandum
To: Assistant Regional Director, Ecological Services
From: Field Supervisor, (name of Field Office)
Subject: Emergency consultation on (nane of Federal action).
This office has completed an Informal emergency consultation. The following
Information summarizes the location of the emergency, nature of the emergency,
listed species and critical habitat(s) Involved, and how those species and
habitats are likely to be affected by the emergency.
Date of the Contact: Time:
Contact(s) Name:
Agency:
Contact(s) Title:
Nature of the Emergency:
Species 1n the Area:
Anticipated Effects:
Recommendations Given to the Contact:
B-39
-------
Endangered Species Consultation Handbook • June 1994
INTRA-SERVICE SECTION 7 BIOLOGICAL EVALUATION FORM
[Note: This form provides the outline of information needed for consultation.
If additional space 1s needed, attach additional sheets, or set up this form
to accommodate your responses.]
Originating Person:
Telephone Number:
Date:
I. Region:
II. Service Activity (Program)
III. Pertinent Species and Habitat:
A. Listed species and/or their critical habitat within the action
area:
B. Proposed species and/or proposed critical habitat within the
action area
C. Category 1 candidate species within the action area:
D. Include species/habitat occurrence on a map.
IV. Geographic area or station name and action:
B-40
-------
I
Endangered Species Consul tat(on Handbook - June 1994
V. Location (attach map):
A. County and State:
B. Section, township, and range (or latitude and longitude):
C. Distance (nlles) and direction to nearest town:
VI. Description of proposed action (attach additional pages as needed):
VII. Determination of effects:
A. Explanation of effects of the action on species and critical
habitats 1n Items III.A, B, and C (attach additional pages as
needed):
B. Explanation of actions to be Implemented to reduce adverse
effects:
B-41
-------
Endangered Species Consultation Handbook - June 1994
VIII. Effect determination and response requested: [* optional]
A. Listed species/critical habitat:
Determination
no effect
(species:
1s not likely to adversely affect
(species:
Response requested
J "Concurrence
Concurrence
_) *Fomal Consultation
1s likely to adversely affect
(species:
_) Formal consultation
B. Proposed species/proposed critical habitat:
Determination
no effect
(species:
is not likely to adversely affect
(species:
is likely to adversely affect
(species:
1s likely to jeopardize/adverse modification of
critical habitat
(species:
Response requested
) ^Concurrence
_) Concurrence
_) Informal conference
_) Conference
B-42
-------
Endangered Species Consultation Handbook - June 1994
C. Category 1 candidate species:
Determination
no effect
(species:
is not likely to adversely affect
(species:
is likely to adversely affect
(species:
Response requested
_) ^Concurrence
_) Concurrence
_) Informal conference
Is likely to jeopardize
(species:
_) Conference
IX. Reviewing ESO Evaluation:
A. Concurrence Noncurrence
B. Formal consultation required
C. Conference required
D. Remarks (attach additional pages as needed):
signature date
[Title/office of reviewing official]
B-43
-------
Endangered Species Consultation Handbook - June 1994
INSTRUCTIONS
Originating Person: The person(s) who prepared the Intra-Service Section 7
Biological Evaluation Form.
Date: Date the information on the form was finalized.
I Region: Self-explanatory.
II Service activity: The Service program Initiating the proposed action.
III Pertinent species and habitat.
(A) Listed species and/or their critical habitat within the action
area: The action area includes the Immediate area where the proposed
action will occur as well as any other areas where direct or indirect
impacts of the action may be expected. For example, effects of an
action in the headwaters of a stream may affect endangered fish that
occur 20 miles downstream. Lists of listed species/critical habitats
that possibly could occur in the action area may be generated by the
Project Leader or may be requested from the appropriate ESO.
Note: For purposes of section 7 consultation, experimental populations
of listed species are treated as listed species on national wildlife
refuges or national parks, but as proposed species if classed as
experimental non-essential populations off National Wildlife Refuge or
National Park System lands.
List all threatened and endangered species and critical habitat that
will or may be affected by the proposed action. An effect exists even
if only one individual or habitat segment mav be affected. Consider
both beneficial and adverse effects, regardless of their magnitude.
List all threatened and endangered species and critical habitats in the
action area that will not be affected at any level of significance.
This informs the reviewer that such species have been considered.
(B) Proposed species and/or proposed critical habitat within the action
area: Lists of proposed species and critical habitat that could occur
in the action area may be generated by the project leader or may be
requested from the appropriate ESO.
List all species and habitats in the action area for which a proposed
rule (but not a final rule) to list as threatened or endangered or
designate as critical habitat has been published in the Federal Register
and which (1) may be affected, and (2) will not be affected, by the
proposed action. Use the same consideration as in Item III.A above.
B-44
-------
Endangered Species Consultation Handbook - June 1994
(C) Category 1 candidate species within the action area: Lists of such
candidate species that could occur in the action area may be generated
by the project leader or may be requested from the appropriate ESO.
List all category 1 species that will or may be affected by the proposed
action. Candidate species are listed In category 1 of the Notices of
Review published in the Federal Register. Because additions to and
changes 1n category are made to the candidate list between the typically
biannual printings of the Notice of Review, It is necessary to check
candidate lists with the appropriate ESO.
List all category 1 species 1n the action area that will not be affected
by the proposed action.
IV Geographic area or station naae and action:
Briefly describe the proposed action and where 1t will occur. (For
example: The proposed action is to directly stock, or transfer to the
State of X for stocking, channel catfish and smallmouth bass. These
stockings would occur in both Blue Water and Minnow River drainages). A
more detailed description of the proposed action will be presented under
Section VI.
V Location (attach map):
In addition to the following four specific descriptions, it is vital to
attach a map(s). The reviewer may not be familiar with the project area
and will need the maps to precisely relate the proposed project to the
affected species. Naps should depict, preferably In large scale, the
exact locations of project elements. The maps should Include section,
township, and range, or latitude and longitude. Topographic maps are
preferred, with the action area depicted on them.
(A) County and State: Self-explanatory.
(B) Section, township, and range (or latitude and longitude):
Locate the project area as precisely as possible. If the action is
stocking a small stock tank, the descriptor should include at least
quarter section and preferably quarter/quarter section. For scattered
project sites, such as in fish stocking, a location should be given for
each site.
(C) Distance (miles) and direction to nearest town: Self-explanatory.
(D) Species/habitat occurrence: Depict on the location map the species
and habitat occurrences.
B-45
-------
Endangered Species Consultation Handbook - June 1994
VI Description of proposed action:
What is the purpose of this proposed action and how do you plan to do
it? Describe the project area and the project. This should be detailed
enough so that the reviewer can fully understand what the components of
the action include and how the project will affect the species of
concern. Do not assume that the reviewing office will understand
procedures that are taken for granted within your program. Details can
be provided here or by attaching copies of project plans, management
plans, stocking schedules, or other project documents. National
Environmental Protection Act documents are usually helpful attachments.
Sketches or blueprints of the proposed action should be attached.
Proposed project dates should be provided. Attach a biological
assessment if the project is considered a "major construction activity."
Include any measures agreed to through Informal consultation to reduce
any adverse impacts.
VII Determination of effects
A. Explanation of effects of the action:
Discuss either the effects of the action on each listed, proposed, or
candidate species and critical habitat in the action area or why those
species or critical habitats will not be affected. For species or
critical habitats affected by the proposed action provide the following
information: [Note: Candidate species will have no proposed critical
habitat.]
(1) Status of species in action area - is 1t native (natural and
stocked) or non-native in the action area? Population and/or
distribution trends (provide survey Information).
(2) Species habitat in the action area and their significance to
spawning, feeding, migratory habits (or behavior), cover, roost,
etc. Is the area currently occupied or historic range for the
species?
(3) Impacts of the proposed action on species and/or critical habitat
- how the proposed action will or may affect the species and or
critical habitat considering direct, indirect, interdependent,
interrelated, and cumulative impacts.
(4) Quantification of effects - acres of habitat, miles of habitat,
number of individuals, etc.
(5) Summary of effects - include the basis for your conclusion - best
judgment, literature, citations, studies, etc.
B-46
-------
Endangered Species Consultation Handbook - June 1994
B. Describe, if known, project modifications that would promote the
conservation of the affected species. Project modification ideas
may be found in recovery plans. Although section 7 of ESA
prohibits only those actions by Federal agencies which are likely
to jeopardize listed species or adversely modify critical habitat,
the Service has a commitment to recovering listed species and
trying to ensure that other species do not need to be added to the
list of endangered and threatened species.
VIII. Effect determination and response requested:
Enter the species in the appropriate determination. For each
determination, place an X on the response requested.
A. Listed species/critical habitat:
Ho effect. This conclusion is reached if the proposed action and its
interrelated and interdependent actions will not directly or Indirectly
affect listed species or critical habitat. Formal section 7
consultation is not required when the "no effect" conclusion is reached.
A request for the optional written concurrence is encouraged.
Is not likely to adversely affect. This conclusion is appropriate when
effects to the species or critical habitat are expected to be
beneficial, discountable, or insignificant. Beneficial effects have
contemporaneous positive effects without any adverse effects to the
species or habitat. Insignificant effects relate to the size of the
impact (and should never reach the scale where take occurs), while
discountable effects are those that are extremely unlikely to occur.
Based on best judgment, a person would not: (1) be able to meaningfully
measure, detect, or evaluate insignificant effects; or (2) expect
discountable effects to occur. If the ESO concurs in writing with the
Project Leader's determination of "is not likely to adversely affect"
listed species or critical habitat, the section 7 consultation process
is completed.
If formal section 7 consultation is required for other species affected
by this proposed action, then 1t may be easier and less confusing to
fold the "is not likely to adversely effect" concurrence into the formal
section 7 consultation rather than doing a separate concurrence.
Is Hkelv to adversely affect. This conclusion is reached if any
adverse effect to listed species or critical habitat may occur as a
direct or indirect result of the proposed action or its interrelated or
interdependent actions. In the event the overall effect of the proposed
action is beneficial to the listed species or critical habitat, but may
also cause some adverse effects to individuals of the listed species or
segments of the critical habitat, then the proposed action "is likely to
adversely affect" the listed species or critical habitat. An "is likely
to adversely affect" determination requires formal section 7
consultation.
B-47
-------
Endangered Species Consultation Handbook - June 1994
Example: A refuge proposes prescribed burning of a portion of a
prairie remnant to improve the habitat for the endangered Karner
blue butterfly. The burn will substantially improve the habitat
for the species and promote its recovery 1n subsequent years.
However, individual Karner blue butterfly eggs and larvae will be
killed during the burn. Even though the net effect of the burn
will be highly beneficial to the listed species, the burn must be
considered to have an adverse effect. A finding of "is likely to
adversely affect" is necessary.
B. Proposed species/proposed critical habitat:
Wo effect. This conclusion is appropriate for a proposed species or
proposed critical habitat when no effects are expected. A request for
optional written concurrence is encouraged.
Is not likely to adversely affect. This conclusion is appropriate when
all effects to a proposed species or proposed critical habitat are
expected to be beneficial, discountable, or insignificant. Beneficial
effects have contemporaneous positive effects without any adverse
effects to the species or habitat. Insignificant effects relate to the
size of the impact (and should never reach the scale where take occurs),
while discountable effects are those that are extremely unlikely to
occur. Based on best judgment, a person would not: (1) be able to
meaningfully measure, detect, or evaluate insignificant effects; or (2)
expect discountable effects to occur. Written concurrence is
recommended.
Is likely to adversely affect. This conclusion is reached if any
adverse effects to the proposed species or critical habitat may occur as
a result of the direct or indirect effects of the proposed action or its
interrelated or interdependent actions. In the event the overall effect
of the proposed action is beneficial to proposed species or proposed
critical habitat, but may also cause some adverse effect to individuals
of the proposed species or segments of the proposed critical habitat,
then the proposed action "is likely to adversely affect" the proposed
species or proposed critical habitat. This finding does not require a
conference, but discussion is encouraged with the appropriate ESO to
provide an informal opportunity to suggest ways in which the adverse
effects can be minimized.
Is likely to jeopardize proposed species/adversely modify proposed
critical habitat. For proposed species and proposed critical habitats,
the Service is required to evaluate whether the proposed action is
likely to jeopardize the proposed species or destroy or adversely modify
the proposed critical habitat. If this conclusion is reached, a section
7 conference is required. For additional guidance on what constitutes
jeopardy to a proposed species and destruction or adverse modification
of proposed critical habitat, see the definition section or contact the
appropriate ESO.
B-48
-------
Endangered Species Consultation Handbook - June 1994
C. Category 1 candidate species:
Wo effect: This conclusion 1s reached 1f the proposed action and Its
interrelated and interdependent actions will not directly or Indirectly
affect category 1 candidate species. A request for the optional written
concurrence is encouraged.
Is not likely to adversely affect. This conclusion 1s appropriate when
all effects to a category 1 candidate are expected to be beneficial,
discountable, or Insignificant. Beneficial effects have contemporaneous
positive effects without any adverse effects to the species or habitat.
Insignificant effects relate to the size of the impact (and should never
reach the scale where take occurs), while discountable effects are those
that are extremely unlikely to occur. Based on best judgment, a person
would not: (1) be able to meaningfully measure, detect, or evaluate
insignificant effects; or (2) expect discountable effects to occur.
Written concurrence is recommended.
Is likely to adversely affect. This conclusion is reached If any
adverse effects to the category 1 candidate may occur as a result of the
direct or indirect effects of the proposed action or its interrelated or
interdependent actions. In the event the overall effect of the proposed
action is beneficial to the category 1 candidate species, but may also
cause some adverse effect to individuals of the species, the correct
finding would be that the proposed action "is likely to adversely
affect" the candidate species. This finding does not require a
conference, but discussion is encouraged with the appropriate ESO to
provide an informal opportunity to suggest ways in which the adverse
effects can be minimized.
Is Hkelv to jeopardize proposed category 1 candidate species: For
category 1 candidate species, the Service 1s required to evaluate
whether the proposed action is likely to jeopardize the category 1
candidate species. If this conclusion is reached, a section 7
conference is required. For guidance on what constitutes jeopardy to a
category 1 candidate species, see the definitions section or contact the
appropriate ESO.
B-49
-------
Endangered Species Consultation Handbook—Hovodier 1994
APPENDIX C - EXAMPLES OF CONSULTATION
NOTE: Opinions following this new fomat will be provided as examples in
the final version of the handbook
i-i
-------
Endangered Species Consultation Handbook—Womi^iiii 1994
APPENDIX D - SOLICITOR OPINIONS
Secretarial Memoranda
S-l Office of Hearings and Appeals Authority on Biological Opinions
Issued by the U.S. Fish and Wildlife Service Under Section 7 of the
Endangered Species Act. Manuel Lujan January 7, 1993.
S-2 Reaffirmation of above from Bruce Babbitt. April 20, 1993.
Solicitor Opinions
NOTE:Included in this appendix are two lists of legal opinions on sections
6, 7, and 9 of the Endangered Species Act, reviewed for a recent FOIA
request. The first list (SO-A) contains those documents released to the
requestors as public documents. These documents may be released to the
public. List SO-B contains opinions that were, and are not to be, released
to the public. If copies of any of these opinions are needed, requests
should be sent through the Regional Office.
SO-1 Fish and Wildlife Service Regulations Defining "Harm" under
Section 9 of the Endangered Species Act. April 17, 1981.
SO-2 HUD Delegation of Endangered Species Act Consultation
Requirements. June 9, 1981.
SO-3 Cumulative Effects to be considered Under Section 7 of the
Endangered Species Act. August 27, 1981.
SO-4 Request for Legal Opinion Concerning Section 7 Consultation for
Mining Claim Land Patented by the BLM (Bureau of Land Management)
March 1, 1990.
SO-5 The Legal Sufficiency of the Biological Opinion for Inner-
Perimeter Road, Lowndes County, Georgia. July 9, 1992.
[Note: These opinions are not available in electronic format.]
-------
THE SECRETARY OF THE INTERIOR
Washington
January 8,1993
Memorandum
To:
Assistant Secretary for Policy, Management and Budget
From:
Subject
Office of Hpwfmgs and Appeals Authority on Biologiral Opinions
Issued by the US. Fish and Wildlife Service Under Section 7 of the
Endangered Speaes Act
The Department's Office of Hearings and Appeals (OHA) has recently received
numerous appeals of Bureau of Land Management (BLM) grazing decisions based on
Section 7 biological opinions issued by the Fish and Wildlife Service (FWS).
Appellants-permittees are asserting that the FWS opinions are arbitrary and
capricious and may not be relied upon by the BLM in its decision-making process.
In one written opinion, an Administrative Law Judge handling one of these appeals
for OHA found that BLM's reliance on biological advice provided by the FWS under
Section 7 of the Endangered Species Act (ESA) was arbitrary and capricious. In
effect, this ruling represents a review not only of the merits of the BLM derision,
which is appropriate, but a review of the merits of the FWS biological advioe as welL
These types of challenges to the FWS's Section 7 process (i-e., biological opinions and
findings) have the effect of amending existing delegatidns of authority within the
Department Under the existing delegations set out in 209 DM 6 and 242 DM 1.1A,
the Director of the US. Fish and Wildlife Service is authorized to exercise the
authority of the Secretary concerning ratters r iating to the endangered and
threatened species. Joint regulations promulgated by the Department of Commerce
and the Department of the Interior vest responsibility in the Regional Directors of the
FWS to carry out consultations and to issue biological opinions under Section 7 of the
ESA (subject to review by the Director, at his election). 50 CFJL §§ 402.02 (definition
of "Director") and 402.14. Neither the Departmental Manual nor the regulations at 50
C-F.R- Part 402 provide an administrative appeal remedy to interested parties.
In summary, OHA has no authority under existing delegations to review the merits
of FWS biological opinions. Any review of biological opinions would necessarily be
limited to the federal district courts pursuant to Section 11(g) of the ESA. The long-
standing administrative practice of not providing OHA review of the biological
* determinations of the FWS under the ESA, the specific remedies provided by the ESA
itself, and the need for expedited treatment, all militate against a change to the
existing delegations.
-------
This memorandum does not affect the discretion of Departmental bureaus on how tn
best implement a biological opinion fram the FWS. Consistent wUh case law and
Section 7 regulations, the action agency determines how to implement the opinion,
giving due deference to the biological findings of the FWS. The issue is whether
OKA, instead of limiting its review to the merits of the BLM decision, should be
allowed to look behind that dedsion and review the merite of die FWS
opinion. When BLM derides to tmplfmpnt a reasonable and prudent alternative set
out in a biological opinion, or if it decides to implement the mandatory terms and
conditions of an incidental take statement attached to that opinion, OHA is not
authorized to "second-guess" the biological opinion or findings of FWS when
reviewing ELM'S dedsion to adopt the measures prescribed in that opinion or advice.
As stated above, OHA has not been delegated the authority to carry out such a
review.
Please inform the Director of the Office of Hearings and Appeals of my position on
this subject and, accordingly, the present limits an the jurisdiction of OHA in this
regard.
-------
TNC SC-CftCYAftY or THE IMTCfttOft
WASHINGTON
m 20 633
Mamorandua
To: Office of Hearings and Appeals
Froa: Secretary^§^
Subject: Office of Hearings and Appeals Authority- to Review
Biological Opinions Issued by the O.S. Pish and Hildlife
Service Pursuant to Section 7 of the Endangered Species
Act
It has been the policy of the Department of the Interior,
reaffirmed by Secretary Lujan as recently as January 8, 1993, that
the Office of Hearings and Appeals
-------
SO-ft I
ESA LEGAL MEMORANDA
RELEASED DOCUMENTS
INTERIM RESPONSE TO CROWELL t MORING FOIA REQUEST
DIVISION OF CONSERVATION AND WILDLIFE
Aug. 30, 1974
Feb. 13, 1976
Apr. 12, 1977
May 18, 1977
Letter fron Associate Solicitor to Chairman,
Committee on Merchant Marine and Fisheries,
concerning Section 9 burdens on legitinate
zoos and circuses under the current ESA.
Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re designation of critical
habitat for foreign species.
Memorandum from Associate Solicitor to
Director, FWS, re extraterritorial/foreign
application of ESA; applicability of the
jeopardy clause of Section 7 to federal
activities affecting listed species in
foreign countries.
Memorandum from Assistant Solicitor, Fish and
Wildlife, to Chief, FWS/Law Enforcement, re
whether hybrids are covered by the ESA of
1973.
July 14, 1977
Memorandum from Acting Associate Solicitor to
Associate Director, Federal Assistance, FWS,
re applicability of the concept of mitigation
to critical habitat under Section 7.
Aug. 2, 1977
jiJ
I"'
,iV~
Aug. 22, 1977
Sept. 16, 1977
Memorandum from Assistant Solicitor, Fish and
Wildlife, to Deputy Associate Director,
Federal Assistance, FWS, on whether hybrids
ere covered by the ESA.
Letter from Associate Solicitor to Assistant
County Solicitor, Anne Arundel County,
Maryland, re conflicts with the ESA in
Maryland's proposed animal control ordinance.
Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re permit issuance in case6
where it is not clear whether the animal is a
purebred or a hybrid (with attachment).
Dec. 13, 1977
Letter from Associate Solicitor to Director,
Government Affairs for Land and Natural
-------
Resources, National Cattlenen's Ass'n, re
scope of Sections 4(d) and 7.
Jan. 19, 1979
Mar. 21, 1979
June 25, 1979
July 23, 1979
July 25, 1979
Apr. 30, 1980
July 1, I960
July 24, 1980
Sept. 12, 1980
Nov. 10, 1980
Memorandum from Associate Solicitor to the
Endangered Species Committee, re statutory
standard and criteria for granting an
exemption fro* the requirements of Section
7(a) of the ESA.
Letter fron Assistant solicitor, Fish and
Wildlife, to Counsel, Seminole Tribe of
Florida, re Indian tribe's proposal to raise
alligators in captivity for commercial
purposes.
"Comments of the Department of the Interior
on Prehearing Issues,« in re The Pittstnn go.
Pi-nrv.sed Refinery ar.fl Marine Terraim 1 .
rwstiport. Maine (Endangered Species
Committee Review Board).
Memorandum fron Associate Solicitor to
Solicitor, re extraterritorial application of
S 7 of the ESA.
Letter from Assistant Solicitor, Pish and
Wildlife, to Mass. state Rep. Manning, re
Massachusetts law and Section 6 of the ESA.
Letter from Assistant Solicitor, lish and
Wildlife, to Ms. Sharon Gordon, re Section 7.
Letter from Assistant Solicitor, Fish and
Wildlife, to the Attorney General, State of
Rhode Island, re Rhode Island's eligibility
for a full authorities cooperative agreement
for fish and wildlife under the ESA of 1973.
Letter from Asscciate Solicitor to Mr.
Lindell Marsh, r«* conservation planning and
Section 7.
Letter from Assistant Solicitor, Fish and
Wildlife, to Executive Secretary, Joint
Legislative Air and Water Pollution Control
and Conservation Committee, House of
Representatives, State of Pennsylvania, re
requirements for cooperative agreement for
plants.
Letter from Assistant Solicitor, Fish and
Wildlife, to Mr. John S. Applegarth,
2
-------
Nov. 12, 1980
2^Apr. 17, 1981
May 6, 1981
j^Aug. 27, 1981
Aug. 31, 1981
Dec. 30. 1981
Sept. 21, 1983
bJr
V Dec. 19, 1983
Jan. 26, 1984
Department of Biology, University of New
Mexico, re application of ESA Section 9
prohibitions to prehistoric faun&l remains of
listad species.
Letter fron Assistant Solicitor, Fish and
Wildlife, to J. Applegarth, Departaent of
Biology, University of New Mexico, re
application of ESA Section 9 prohibitions to
prehistoric faunal reoains of listed
species.
Hoiaoranduii froa Associate Solicitor to
Director, FWS, re FWS regulation defining
"hare" under Section 9.
Honorandua froa Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re the availability of
protections for hybrids of listed species
under the ESA.
Heaorandun froa Associate Solicitor to
Director, FWS, re revised Solicitor's Office
opinion on cuaulative impact analysis.
Meaorandua froa Associate Solicitor to
Assistant Secretary, Fish and wildlife and
Parks, re extraterritorial/foreign
application of Section 7 of the ESA.
Memorandum froa Associate Solicitor to
Associate Director, Federal Assistance, FWS,
re the interrelationship of Sections 7 and 9
of the ESA.
Meaorandua from Assistant Solicitor, Fish and
Wildlife, to Regional Solicitor (Boston), re
status of the hybrid offspring of two
endangered species.
Memorandum froa Associate Solicitor to
Director, FWS, re Section 10(j) of the ESA
and its relationship with § 7 and $ 9 of the
ESA and the Marine Mnanal Protection Act;
translocation of sea otters.
Letter froa D. Gayer, Fish and Wildlife
Branch, to J. Clifford, Assistant Attorney
General, Civil Division, Office of the
Attorney General, State of Arizona, re § 6
cooperative agreeaent.
3
-------
Aug. 21, 1984
Aug- 24, 1984
May 13, 1987
July 1987
Sept. 18, 1989
Mar. 6, 1990
Meaorandua from Associate Solicitor, through
Regional Solicitor (Atlanta), to Regional
Director, Region 4, FWS, re applicability of
i 7(a)(2) to the issuance of flood insurance
under the National Flood Insurance Act of
1968 (FEKA prograa).
Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re augaentation of the
Southern Selkirk Mountain caribou herd.
Meaorandua froa Associate Solicitor to
Director, FWS, re petition to list the Sanish
Tribe.
"Federal Legal Measures for Protection of
Fish and Wildlife in the Bering Sea Region,"
D. Gayer & K. Young, Office of the Solicitor.
Letter froa Associate Solicitor to Acting
Chief, Wildlife and Marine Resources Section,
DOJ, re legal position of the FWS concerning
the effect of the Arizona-Idaho Conservation
Act on the duty and power to reinitiate Sec.
7 consultation.
Letter froa Associate Solicitor to Acting
Chief, Wildlife and Marine Resources Section,
DOJ, re legal position on the effect of the
Arizona-Idaho Conservation Act on § 7 of the
ESA.
4
-------
ESA LEGAL MEMORANDA - CHRONOLOGICAL LIST
OF DOCUMENTS COVERED BY CROWELL & MORING FOZA REQUEST
IMMEDIATE OFFICE OF THE SOLICITOR
Feb. 7, 1975
Mar. 27, 1975
July 31', 1975
Nov. 5, 1975
Feb. 3, 1976
Mar. 4, 1976
Nov. 10, 1976
Dec. 28, 1976
Jan. 3, 1977
Apr. 14, 1977
July 14, 1977
Letter fro® Solicitor to Terri Lowry., re
federal lavs for natural resource protection.
Letter fros Solicitor to General Counsel,
GSA, re seizure and forfeiture remedies under
the ESA for violations thereof.
Menorandun from Deputy Solicitor to Acting
Secretary, re effect of the ESA on preference
right lease applications (with attached
research memorandum).
Memorandum from Deputy Solicitor to Associate
Solicitors Garner, Metrinko, and Chambers, re
applicability of Section 7 to Indian
Reservations (with attachments).
Letter from Solicitor to Rep. Udall, re the
Section 7 consultation process for Tellico
Dam and the Department's efforts to protect
the snail darter.
Memorandum from Deputy Solicitor to Regional
Solicitor (Sacramento), re applicability of
Section 7 to Indian reservations.
Memorandum from Deputy Solicitor to Assistant
Secretary, Program Development and Budget, re
NEPA, Section 7 of the ESA, and the balance
between Mining and Minerals Policy Act and
the ESA.
Memorandum from Solicitor to Assistant
Secretary, Program Development and Budget, re
review of the ESA.
Memcrandum from Solicitor, through Assistant
Secretary - Program Development and Budget,
to the Secretary, re review of ESA.
Letter from Solicitor to Office of the
Solicitor General, DOJ, re comments on the
proposed petition for certiorari in the Snail
Darter case.
Letter from Solicitor to Assistant Attorney
General, Office of Legal Advisor, re ESA
issues involved in Hill v. TVA (petition for
writ of certiorari pending).
-------
May 25, 1978
June 5, 1978
June 13, 1978
July 3, 1978
July 19, 1978
July 24, 1978
Oct. 24, 1978
Oct. 30, 1978
Dec. 27, 1978
Feb. 8, 1980
June 13, 1980
Memorandum from Deputy Solicitor to Director,
FWS, re Section 7 and cumulative impacts.
Memorandum from Solicitor to Director, FWS,
re cumulative impacts and § 7 of the ESA.
Memorandum from Deputy Solicitor to Director,
FWS, re cumulative impacts and § 7 .of the
ESA.
Letter from Solicitor to Assistant Attorney
General, Land and Natural Resources Division,
re litigation report for Safari Club
International v. Andrus.
Memorandum from Solicitor to Director, FWS,
re Section 7 and Cumulative Impacts.
Memorandum from Solicitor to Director, FWS,
re Section 7 and Cumulative Impacts.
Letter from Solicitor to Assistant Attorney
General, Land and Natural Resources Division,
re Interior Department position in the
litigation on the Grayrocks project.
Letter from Solicitor to Assistant Attorney
General, Land and Natural Resources Division,
re litigation report in Hopson v. Ktcps
(class action filed by Eskimos attacking
Commerce Department regulatory restrictions
on the taking of bowhead whales).
Memorandum from Deputy Solicitor to Director,
Geological Survey, re proposed interagency
agreements designating lead agencies for § 7
consultations.
letter from Deputy Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re district court decision in Worth
Slope Borough v. Andrus. HaU^naJ. W
Federation v. Andrus. and ViUflgfi Of KaKtQYlK
v. Andrus (D.D.C.) [injunction issued against
offshore oil and gas leases in the Beaufort
Sea].
Memorandum from Solicitor, through the
Executive Secretariat, to the Secretary, re
Secretarial Issue Document on inadequate
information situations and the draft Section
7 regulations.
2
-------
NOV. 4, 1980
Nov. 7, 1980
Jan. 8, 1981
Aug. 26, 1981
Jan. 8, 1982
Jan. 19, 1982
Meaorandua froa Solicitor to Assistant
Secretary for Fish and Wildlife and Parks and
Assistant Sacratary for Indian Affairs, re
application of the ZSA to Native Americans
with treaty bunting and fishing rights.
Maaorandua froa Solicitor to Executive
Sacretariat, re sufficiency of data in
pxaparxng biological opinions under § 7.
Letter froa Deputy Solicitor, Legal Services,
to Assistant Attorney General, Land and
Hatural Resources Division, re consents on
district court decision in Glover River
Organization v. Department of Interior. NO.
78-202-C (E.D. OJcla. , Dec. 12, 1980).
Heaorandua froa Solicitor to Director, FWS,
re withdrawal of earlier Solicitor's Opinion
on cumulative iapact analysis under § 7.
Heaoranduai froa Solicitor, Assistant
Secretary for Energy and Minerals, and
Assistant Secretary for Land and Hater
Resources to Secretary, re recommended
legislative anendments to the ESA.
Letter froa Solicitor to Sen. Inouye, re
applicability of ESA to the Northern Marianr-
Islands, Trust Territory of the Pacific
Islands.
Mar. 30, 1982
June 14, 1982
Oct. 12, 1982
May 9, 1984
Feb. 11, 1985
Letter froa Deputy Solicitor to
D. Santarelli, Esq., re importation
of sport-hunted leopard trophies.
Letter froa So]lcitor to Assistant Attorney
General, Land and Natural Resources Division,
re Interior Department position on the need
for litigation ro protect two endangered
species.
Letter froa Solicitor to Assistant Attorney
General, Land and Natural Resources Division,
re litigation position in Pyramid Lake Paiuta
¦Tribe of Indians v. Citv of Reno.
Memorandum froa Deputy Solicitor to all
Assistant secretaries and all Bureau and
Agency Directors, re consultation require-
ments under § 7(a)(2) of the ESA.
Letter from Solicitor to Assistant Attorney
General, Land and Natural Resources Division,
re Interior Department position on the Eighth
3
-------
Circuit decision in nnlfd v. Dion.
Apr. 12, 1985
June- 10, 1985
July 5, 1985
Nov. 18, 1985
Jan. 10, 1986
H.ir. 26, 1986
Dec. 31, 1986
July 7., 1987
Ffcb. 18, 1988
Nov. 16, 1988
Mar. 14, 1989
Letter fro* Solicitor to Assistant Attorney
General, Land and Natural Resources Division,
re Pish and Wildlife Service position in citv
of Reno v. Pyramid Lake Paiute Tribe of
Indians. Civ. No. CV-R-85-025 BRT (D. Nev.).
Letter fro* Acting Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re Interior Department position on
the Eighth Circuit decision in Ur.itfifl States
v- Dion.
Letter from Principal Deputy Solicitor to
President, Wildlife Legislative Fund of
America, re federal vildlife conservation
lavs and treaty-protected hunting and fish-
ing rights of Native Americans.
Memorandum from Principal Deputy Solicitor to
Secretary, re analysis of legal issues con-
cerning the "Grasslands" in the Central
Valley of California.
Letter from Solicitor to Rep. Tauzin, re
United States v. Dion.
Letter from Solicitor to Rep. Foley, re
United States v. Dion.
Letter from Solicitor to Assistant Attorney
General, Land and Natural Resources Division,
re Interior Department position in Pyramid
Lake Paiute Tribe of Indians v. Hodel.
Letter from Solicitor to Assist'^nt Attorney
General, Division of Land and Natural
Resources, re Fish and Wildlife Service posi-
tion on the district court order in united
States v. Citv of Rancho Palos Verdes.
Letter from Solicitor to Acting Assistant
Attorney General, Land and Natural Resources
Division, re Interior Department position on
Ninth Circuit decision in Conner v. Burford.
Letter from Solicitor to Assistant Attorney
General, Division of Land and Natural
Resources, re Interior Department position on
the Eighth Circuit decision in Defenders of
Wildlife V. Hptiel.
Letter from Solicitor to Acting Assistant
Attorney General, Division of Land and
4
-------
July 10, 1989
July 9, 1990
Sept. 4, 1990
Natural Resources, re Interior Department
position on the district court order in
Defenders of Wildlife v, Hnrtol .
Meaorandua froa Solicitor to Secretary, re
authority to provide water to Stillwater
tfildlife Management Area.
Meaorandua froa Acting solicitor co
Secretary, re separation of functions in
natters bandied by the Endangered Species
Coaaittee.
Letter froa Solicitor to Assistant Attorney
General, Division of Bnvironaent and Natural
Resources, re recoaaendations concerning
Eighth Circuit decision in Defenders of
wndlife v. mien (5 7 extraterritoriality
case).
5
-------
DIVISION OF ENERGY AND RESOURCES
Oct. 28, 1975
Jan. 6, 1976
Aug. 10, 1976
Meaorandua fro* Assistant Solicitor, Lands,
to Assistant Solicitor, Fish and Wildlife, re
proposed guidelines for federal agency con-
pliance with S 7 of the ESA.
Meaorandua froa Associate Solicitor to
Solicitor, re proposed guidelines for
federal agency coapliance with Section
7 of the ESA.
Meaorandua fron Associate Solicitor to
Assistant Secretary, Land and Mater
Resources, re application of the ESA to
mineral leases.
Jan. 4, 1978
June 27, 1980
Oct. 29, 1980
Feb. 6, 1981
Sept. 15, 1986
Apr. 1, 1988
Oct. 25, 1989
Menorandum from Associate Solicitor, through
Assistant Secretary, Land and Water
Resources, to Director, BLM, re relationship
of ESA to actions under ANCSA.
Memorandum from Associate Solicitor to
Director, BLM, re biological studies of
endangered species occurring within areas of
proposed agency action.
Memorandum from Assistant Solicitor, Realty
Branch, to Assistant Solicitor, Fish and
Wildlife, re Section 7 consultation process
for the Northern Border Gas Pipeline grant of
right-of-way (with enclosures).
Memorandum from Acting Associate Solicitor to
Director, BLM, re legality of habitat
compensation as an alternative under section
7.
Memorandum from Assistant Solicitor, Water
and Power, to Assistant Secretary for Water
and Science and Commissioner of BoR, re
Defenders of Wildlife v. Hodel.
Memorandum from Associate Solicitor to
Director, BLM, re legal responsibilities of
BLM for oil and gas leasing and operations on
split estate lands.
Letter from Associate Solicitor to Assistant
Attorney General, Land and Natural Resources
6
-------
Division, r« HaturaT Resources Bgfensa
pound! v. Houston (with enclosures).
7
-------
REGIONAL SOLICITOR'S OFFICE
ROCKY MOUNTAIN REGION
Aug. 22, 1979
Mar. 5, 1980
Mar. 14, 19B0
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re
applicability of § 7 to BIA activities.
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re
application of $ 7 to Rural Electrification
Administration processes (with attachment).
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re use of
surplus water in Glendo Reservoir for the
conservation of whooping crane critical
habitat.
May 2, 1980
June 3, 1980
June 23, 1980
June 27, 1980
Aug. 22, 1980
Oct. 14, 1980
June 9, 1981
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re Section 7
responsibilities for oil and gas leasing.
Memorandum from Regional Solicitor to
Endangered Species Team Leader, FWS, Salt
Lake City Area Office, re biological opinion
for the Dolores Project.
Letter from Acting Regional Solicitor to
Assistant U. S. Attorney, District of
Colorado, re litigation report for Riverside
Irrigation District v. Stlppo.
Memorandum from Regional Solicitor to
Dave Westley, FWS/Office of Endangered
Species, Washirgton, DC, re ESA § 7
regulations.
Letter from Acting Regional Solicitor to
Assistant U. S. Attorney, District of
Colorado, re additional information for the
Government's defense in Riverside irrigation
District v. Stippo.
Memorandum from Regional Solicitor to
Regional Director, Fish and Wildlife, Denver
(FA-SE), re responsibility to request
initiation of consultation.
Memorandum from Regional Solicitor to
Area Manager, FWS, Salt Lake City, re use of
8
-------
1
Jane 9, 1961
July 8, 1981
Sept. 25, 1981
Sept. 28, 1981
Nov. 5, 1981
Dec. 30, 1981
May 4, 1982
Nov. 8, 1982
Dec. 14, 1982
June 21, 1983
Jan. 28, 1985
endangered plant spocles in highway right-of-
way plantings.
Meaorandua from Regional Solicitor to
Assistant Ragional Director, FWS, Region 6,
Denver (AFA), re delegation of ESA consulta-
tion requirements by the Department of
Bousing and Urban Development.
Memorandum from Regional Solicitor to
Associate Solicitor, Energy 6 Resources, and
Associate Solicitor, Conservation & wildlife,
re "no surface occupancy™ stipulations in oil
and gas leases and $ 7 of the ESA.
Letter froa Ho Zallen (for the Regional
Solicitor) to T. Hicklin, Lt. Colonel, Corps
of Engineers, re consideration of cumulative
effects in the biological opinion for
Cheyenne Stage II Water Diversion Project.
Memorandum from Regional Solicitor to
Associate Solicitor, Conservation and
Wildlife, re Montana $ 6 cooperative
agreement (with attachments).
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re oil and
gas leasing and ESA § 7 responsibilities.
Memorandum from Regional Solicitor to
Associate Solicitor, Conservation & Wildlife,
re proposed changes to the ESA.
Memorandum from Regional Solicitor to
Associate Solicitor, Conservation & Wildlife,
re ESA § 7 and cumulative effects.
Memorandum from Regional Solicitor to Field
Supervisor, Endangered Species, FWS
(Billings, MT), re $ 7 consultation on Forest
Highway 61 in Flathead County, Montana.
Memorandum from Regional Solicitor to
Assistant Solicitor, Fish and Wildlife, re
Exxon biological opinion.
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re
attracting or baiting grizzly bears.
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver),-re Center
Mountain timber sale; 60-day notice of intent
to sue.'
9
-------
May 6, 1985
Sept. 5, 1985
Feb. 24, 1986
Apr. 7, 1986
Apr. 7, 1986
May 6, 1986
June 11, 1986
Aug. 21, 1987
Sept. 11, 1987
Dec. 7, 1987
Jan. 25, 1988
May 26, 1988
Memorandum from Regional Solicitor to
Special Assistant to the Regional Director,
FWS (Denver), re endangered species modeling
effort on the Colorado River.
Memorandum froa Regional Solicitor to
Regional Director, FWS (Denver), re draft
grizzly bear recovery plan revision.
Memorandum froa Regional Solicitor to
Regional Director, FWS (Denver), re agency
review draft of the revised Northern Rocky
Mountain Wolf recovery plan.
Memorandum froa Regional Solicitor to
Regional Director, FWS (Denver), re proposed
rule to revise special regulations for the
threatened grizzly bear.
Memorandum from Regional Solicitor to
Executive Director, Colorado River Coor-
dinating Committee, FWS, Region 6 (Denver),
re comments on draft program for endangered
fishes in the Upper Colorado River Basin.
Memorandum from Regional Solicitor to
W. Michael Young, Fish and Wildlife Branch,
re removal of projects from the environmental
baseline under § 7 (without enclosure).
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re proposed
changes in the draft Northern Rocky Mountain
Wolf recovery plan.
Memorandum from Regional Solicitor to
Deputy Regional Director, FWS (Denver), re
importation of wolves froa Canada (without
enclosure).
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re wolf
control plan and environmental action
memorandum.
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re wolf
control plan; environmental assessment.
Memorandum from Regional Solicitor to
Solicitor, re Conner v. Burford.
Memorandum from Regional Solicitor to
Acting Associate Solicitor, Conservation and
10
-------
Dec. 29, 1988
Mar. 9/ 1989
Apr. 25, 1989
May 12, 1989
Wildlife, re instreaa flow water rights for
Colorado River endangered fishes under Colo-
rado lav; proposed water sale from Ruedi
Reservoir.
Memorandum froa Regional Solicitor to
Associate Solicitor, Conservation and
Wildlife, re 60-day notice of intent to sue
filed by James Griz2ard for the Uintah Moun-
tain Club (without attachment).
Memorandum from Regional Solicitor to
Associate Solicitor, Conservation and
Wildlife, re implementation of conserva-
tion measures in biological opinion for
the sale of water from Ruedi Reservoir
(with enclosures).
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re proposed
revision to grizzly bear special rule.
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re § 7
consultations and the Recovery Implementation
Program for Endangered Fishes in the Upper
Colorado River Basin.
May 18, 1989
Sept. 19, 1989
S«pt. 20, 19(39'
Oct. 13, 1989
Oct; 20, 1989
Feb. 22, 1990
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re proposed
revision to grizzly bear special rule.
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re listing
package to propose the } isting of the Bameby
Ridgecress.
Memorandum from Regional Solicitor to
Regional Solicitor, Intermountain Region, re
ESA § 7 and the Animas-La Plata Project
(without enclosure).
Memorandum from Regional Solicitor to
Solicitor, re consultation procedures for
relicensing of FERC Projects (Kingsley Dam)
(with attachment).
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re
commercial log hauling through Yellowstone
National Park; 60-day notice of intent to
sue.
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re BLM
11
-------
^ Mar. 1, 1990
Nay 15, 1990
Aug* 28, 1990
Sept. 13, 1990
patent to the City of St. George, Utah.
Memorandum fro® Regional Solicitor to
Regional Director, FWS (Denver), re $ 7
consultation for mining claim lands patented
by the BLK.
Memorandum from Regional Solicitor to
Regional Director, FWS (Denver), re comments
on Service's draft response to questions from
the State of Montana on the wclf control
program.
Memorandum from Regional Solicitor to
Deputy Commissioner, Bureau of Reclamation
(Denver); Regional Director, FWS (Denver);
Regional Director, Nat'l Park Service, Rocky
Mountain Region; Chief, Bureau of Mines
(Denver); Director's Representative, USGS
(Denver) [re ESA S 7 - responsibility to con-
sult on projects in foreign countries (with
attachment)].
Memorandum from Regional Solicitor to
Solicitor, re Animas-La Plata Project and
ESA.
12
-------
REGIONAL SOLICITOR'S OFFICE
PACXFXC NORTHWEST REGION
Sept. 23, 1975
Dec. 14, 1981
June 22, 1981
Jan. 11, 1982
Har. 27, 1985
Sept. 6, 1985
Dec. 27, 1985
Jan. 29,•1986
Keaorandua from Office of the Regional
Solicitor to Regional Director, FWS
(Portland), re regulation of hunting on Grays
Lake national Wildlife Refuge as affected by
the presence of whooping cranes.
Memorandum from Regional Solicitor to
Regional Director, FWS (Portland), re
legality of BIA's permittee control over
lands near Grays Lake National Wildlife
Refuge, and effect of proposed deepening of
portions of Grayc Lake.
Memorandum from Regional Solicitor to
Regional Director, FWS (Portland), re
proposed wildlife legislation of the Northern
Marianas Commonwealth.
Memorandum from Regional Solicitor to
Associate Solicitor, Conservation and
Wildlife, re ESA issues (with enclosure).
Memorandum from Office of the Regional
Solicitor to Assistant Regional Director,
Federal Assistance, FWS (Portland), re
EIS on application for an incidental take
permit under § 10(a) of the ESA.
Memorandum from R. Swan, Attorney, Pacific
Northweu-t Region, Office of the Solicitor, to
Regional Director, FWS (Portland), re DEIS
for proposed permit to authorize incidental
taking of Coachella Valley Fringe-toed
Lizards.
Memorandum from Office of the Regional
Solicitor to Regional Director, FWS
(Portland), re draft agreement for manage*
ment of Coachella Valley Fringe-toed Lizard
preserves.
Memorandum from Office of the Regional
Solicitor to Deputy Assistant Regional
Director, Federal Assistance, FWS (Portland),
re draft FEIS and management agreement for
proposed permit to authorize incidental
taking of Coachella Valley Fringe-toed
13
-------
Lizards.
Jan. 6, 1987 Menorandun fron Office of the Regional
Solicitor to Deputy Assistant Regional
Director, Fish and wildlife Enhancement,
FWS (Portland), re draft neaorandua of
understanding with California on USA S 7
consultations.
Jan. 7, 1987 Neaorandua fron Office of the Regional
Solicitor to Deputy Assistant Regional
Director, Fish and Wildlife'Enhancenent,
FWS (Portland), re draft nenorandua on ESA
f 7 guidance (without enclosure).
14
-------
REGIONAL SOLICITOR'S OFFICE
SOUTHEAST REGION
Mar. 23, 1978
June 9, 1978
Sept. 11, 1979
Oct. 10, 1979
Oct. 26, 1979
Nov. 15, 1979
Nov. 15, 1979
NOV. 15, 1979
Jan. 7, 1980
Jan. 10, 1980
Meaorandua froa Regional Solicitor to
Regional Director, FWS (Atlanta), re MKPA and
ESA relative to Florida (with attachment).
Meaorandua froa Regional Solicitor to
Special Agent in Charge, Law Enforcenent
Diotrict 9, FWS (Atlanta), re definition of
¦industry or trade" (without enclosure).
Letter froa Regional Solicitor to W. T.
Ponder, re taking under $ 9 of the ESA.
Meaorandua froa Regional Solicitor to
ARD Federal Assistance, FWS (Atlanta), re
§ 6 cooperative agreeaent for Mississippi.
Meaorandua froa Regional Solicitor to
Assistant Regional Director, Federal
Assistance, FWS (Atlanta), re authority of
FWS to control the release of funds intended
for an agency action which was the subject of
consultation.
Memorandum from Regional Solicitor to
Assistant Regional Director, Federal
Assistance, FWS (Atlanta), re § 6 cooperative
agreement for plants for South Carolina.
Memorandum from Regional Solicitor to
Assistant Regional Director, Federal
Assistance, FWS (Atlanta), re § 6 cooperativn
agreement for plants for Tennessee.
Memorandum from Regional Solicitor to
Assistant Regional Director, Federal
Assistance, FWS (Atlanta), re § 6 cooperative
agreement for plants for Georgia.
Memorandum from Regional Solicitor to
Assistant Regional Director, Federal
Assistance, FWS (Atlanta), re federal cost-
sharing under § 6.
Meaorandua froa Regional Solicitor to
Assistant Regional Director, Federal
Assistance, re proposed cooperative agreeaent
with U: S. Virgin Islands.
15
-------
Apr. 28, 1980
June 19, 1980
Mar. 9, 1981
Mar. 12, 1981
Feb. 16, 1983
Mar. 14, 1986
Apr. 25, 1986
Oct 26, 1989
Memorandum from Regional Solicitor to
Regional Director, FWS (Atlanta), re mosquito
control ditches on Merritt Island National
Wildlife Refuge.
Memorandum from Assistant Regional Solicitor,
Lands & Litigation, Southeast Region, to
Assistant Solicitor, Fish and wildlife, re
permit issuance under the ESA and the Bald
and Golden'Eagle Protection Act (with
enclosures).
Memorandum from Regional Solicitor to
Assistant Solicitor, Fish and Wildlife, re
interpretation of S 7 (with attachments).
Memorandum from J. McCullohs, Attorney-
Advisor, Southeast Region, Office of the
Solicitor, to Acting Regional Director, FWS
(Atlanta), re biological opinion, Pigeon
Roost Cave, Beaver Lake, Arkansas.
Memorandum from Regional Solicitor to
Regional Director, FWS (Atlanta), re Corps of
Engineers' sale of lands for cottage sites,
Clark's Hill Reservoir.
Memorandum from Regional Solicitor to
Regional Director, FWS (Atlanta), re respon-
sibility of the State of Florida to prevent
the unauthorized taking of the endangered
Florida Panther.
Memorandum from Regional Solicitor to
Regional Director, FWS (Atlanta), re Puerto
Rican Parrot project; state permit issue.
Memorandum from Regional Solicitor to
Regional Director, FWS (Atlanta), re
endangered/threatened species permit authori-
zations .
16
-------
$£>-& |
ESA LEGAL MEMORANDA - CHRONOLOGICAL INDEX
OP DOCUMENTS EXEMPTED FROM RELEASE
RESPONSE TO CROWELL & HORING FOZA REQUEST
DIVISION OF CONSERVATION AND WILDLIFE
Apr. 19, 1974 Memorandum from Associate Solicitor to
Assistant Secretary, Fish and Wildlife and
Parks, re cooperative agreements, the transi-
tion period, and federal jurisdiction under
the ESA.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Aug. 16, 1974 Memorandum from Associate Solicitor to Legis-
lative Counsel, re H.R. 15893 and H.R. 16079
(bills to amend the ESA).
Exemption (b)(5) applies because the above-
described memorandum contains legal advice
provided to an Interior Department official,
which is protected by the attorney-client
privilege.
Nov. 21, 1974 Memorandum from Associate Solicitor to Legis-
lative Counsel, re S. 4128 (a bill "To amend
the Endangered Species Act of 1973 to maXe it
more consistent with the Marine Mammal
Protection Act of 1972").
Exemption (b)(5) applies because the above-
described memorandum contains legal advice
and recommendations provided to an Interior
Department official, which is protected by
the attorney-client and deliberative process
privileges.
Dec. 2, 1974 Memorandum from Associate Solicitor to Acting
Associate Solicitor, Energy and Resources, re
condemnation and the effect of the ESA on
mining and mineral leasing laws.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
-------
Dec. 2, 1974 Memorandum fro® Associate Solicitor to Deputy
Solicitor, re CEQ guidelines and
consultation.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Jan. 24, 1975 Meaorandua fro* Associate Solicitor to
Solicitor, re application of the ESA to
proposed preference right phosphate leases at
Osceola National Forest.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Apr. 11, 1975 Memorandum from Associate Solicitor to Assis-
tant Sec'y for Fish and wildlife and Parks,
re Sec. 4(d) of the ESA and regulated taking
of threatened species (with enclosures).
Exemption (b)(5) applies; this document is
protected by the attorney-client and attorney
work product privileges.
Apr. 23, 1975 Memorandum from Assistant Solicitor, Fish am
Wildlife, to Chief, Division of Federal Aid,
FWS, re review of environmental impact
statement for the endangered species program.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
June 20, 1975 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Deputy Assistant Secretary for
Fish and wildlife and Parks, re
interpretation of Section 4(d) and regulated
taking of threatened species.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege,
July 16, 1975 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Chief, Endangered Species, FWS,
re Corps of Engineers Harvey Canal-Bayou
Barataria Project.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
-deliberative process privileges.
2
-------
July 31, 1975 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Assistant Solicitor, Lands,
Division of Energy and Resources, re Section
7, critical habitat, and the Fort Mohava,
Nevada land transfer.
Exception (b)(5) applies; this docunent is
protected by the attorney-client privilege.
Sept. 17, 1975 Meaorandua from Assistant Solicitor, Fish and
Wildlife, to Federal Aid, FWS, re the Freedon
of Information Act and the ESA.
Exenption (b)(5) applies; this docunent is
protected by the attorney-client privilege.
Dec. 16, 1975 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Assistant Solicitor, Lands, re
Orae Daa and the relationship between Section
7 and NEPA.
Exenption (b)(5) applies; this docunent is
protected by the attorney-client and
deliberative process privileges.
Dec. 16, 1975 Meaorandua fron Assistant Solicitor, Fish and
Wildlife, to Assistant Solicitor, Lands, re
draft guidelines for federal agency iapleaen-
tatioti of Section 7 of the ESA.
Exenption (b)(5) applies because the above-
described memorandum contains legal
conclusions and advice exchanged between
Interior Department attorneys concerning
proposed agency guidelines; the document is
protected by the attorney-client and
deliberative process privileges.
Jan. 1976 Heaorandua from Associate Solicitor to
Solicitor, re proposed Section 7 guidelines.
Exemption (b)(5) applies; this docuaent is
protected by the attorney-client and
deliberative process privileges.
Apr. 15, 1976 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re the National
Environmental Policy Act and the endangered
species program.
3
-------
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
May 28, 1976 Memorandum fron Associate Solicitor to
Solicitor, re application of the ESA to
Indians.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Sept. 1, 1976 Menorandua fron Acting Associate Solicitor to
Deputy Assistant Secretary, re Forest Service
opinion on conpliance with Section 7.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Sept. 7, 1976 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Chief, Migratory Bird
Management, FWS, re applicability of ESA to
progeny of birds lawfully held upon date of
enactment.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Nov. 3, 1976 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Special Assistant to the
Solicitor, re Section 7 court decisions.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Mar. 7, 1977 Memorandum from Associate Solicitor to
Acting Deputy Solicitor, re applicability
of the ESA to Indians.
Exemption (b)(5) applies because the above-
described memorandum contains legal
discussion and advice conveyed from the
Division of Conservation and Wildlife to the
Acting Deputy Solicitor; the document i6
protected by the attorney-client and
deliberative process privileges.
Apr. 14, 1977 Memorandum from Associate Solicitor to
Legislative Counsel, re comments on H.R.
4167, a bill to amend the Endangered Species
Act of 1973 to clarify the provisions
regarding federal agency cooperation.
4
-------
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Apr. 28, 1977 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Section 6(c) criteria for
reviewing state cooperative agreement
applications under the ESA of 1973.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
July 8, 1977 Memorandum froa Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re effect of the
Marine Mammal Protection Act on the ESA
(permits).
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Aug. 4, 1977 Memorandum from Acting Associate solicitor to
Assistant Secretary for Fish and Wildlife and
Parks, re the International Convention for-
the Regulation of Whaling and the taking of
bowhead whales by Alaskan Natives.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Sept. 12, 1977 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re relationship
betweon Executive Order 11987 ("Exotic
Organisms") and the ESA of 1973.
Exemption (b)(5) applies; this-document is
protected by the attorney-client privilege.
Sept. 15, 1977 Memorandum from Associate Solicitor to
Solicitor, re applicability of ESA to Indian
reservations.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and recommendations conveyed from the
Division of Conservation and wildlife to the
Solicitor; the document is protected by the
attorney-client and deliberative process
privileges.
5
-------
Oct. 6, 1977 Meaorandua froa Assistant Solicitor, Fish antf
Wildlife, to Deputy Solicitor, re applicabil-
ity of International Convention for the Regu-
lation of Whaling to the aboriginal taxing of
whales.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and advice conveyed froa the Branch.of Fish
and Wildlife to the Deputy Solicitor; the
docuaent is protected by the attorney-client
and deliberative process privileges.
Feb. 14, 1978 Letter froa Associate Solicitor to Assistant
Attorney General, Land and Natural Resources,
re litigation report for Pacific Legal Foun-
dwfcion v. Xndrus.
Exemption (b)(5) applies; this document is
protected by the attorney-client and attorney
work product privileges.
Mar. 15i 1978 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Section 7 intra-Service
consultation.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Mar. 27, 1978 Memorandum from Associate Solicitor to
Regional Solicitor (Atlanta), re protection
of marine mammals on inland waterways.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Apr. 28, 1978 Letter from Associate Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re litigation report for Glover
River Organization v. Dep't of the Interior..
Exemption (b)(5) applies; this docuxuont is
protected by the attorney-client and attorney
work product privileges.
June 6, 1978 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re state participation in-
consultation under Section 7 of the ESA.
6
-------
Exemption (b)(5) applies; this document is
protected Joy the attorney-client privilege.
June 27, 1978 Memorandum froa Associate Solicitor to
Associate Director, AFA/FWS, re federal
agencies' affirmative conservation
obligations under Section 7 and their
relationship to the mitigation concept.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Aug. 14, 1978 Keaorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, re consideration of cumulative
impacts in the Reno Sparies early start
program endangered species consultation.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and advice provided to the FWS and protected
by the attorney-client privilege.
Oct. 27, 1978 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re Freedom of
Information Act and disclosure of data
relating to endangered or threatened species.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Nov. 1, 1978 Memorandum from Associate Solicitor to
Solicitor, re Endangered Species Committee
consideration of the Grayrocks and Tellico
Projects.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
conveyed by the Division of Conservation and
Wildlife to the Solicivor; this document is
protected by the attorney-client and
deliberative process privileges.
Jan. 31, 1979 Letter from Associate Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re litigation report for Colorado
River Water Conservation District v. Andrus.
Exemption (b)(5) applies; this document is
protected by the attorney-client and attorney
work product privileges.
7
-------
8, 1979 Note for the Solicitor from the Associate
Solicitor, re endangered species exemption
process.
Exemption (b)(5) applies because this
document contains legal analysis provided by
the Division of Conservation and Wildlife to
the Solicitor; this document is protected by
the attorney-client and deliberative process
privileges.
10, 1979 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re review of papers on plant
conservation under the ESA.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
13, 1979 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Acting Deputy Associate
Director, FWS, re ESA cooperative agreements.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
May 29, 1979 Memorandum from Associate Solicitor to Acting
Project Manager, Alaska Natural Gas
Transportation System, re Section 7
consultation and granting a right-of-way
(Alaskan Natural Gas Transportation System).
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Aug. 17, 1979 Letter from Associate Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re supplement to litigation report
in Montana Wilderness Association et al. v.
U.S. Forest Service . . . U.S. Fish and
Wildlife Service, fit ftl» (duty of the Fish
and Wildlife Service to consider secondary
effects before rendering a biological opinion
pursuant to Section 7(b)).
Exemption (b)(5) applies; this document is
protected by the attorney-client and attorney
work product privileges.
8
Feb.
Apr.
Apr.
-------
Aug. 31, 1979 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Chief, Office of Endangered
Species, FWS,. re Freedom of Znfornation Act
and disclosure of file data on critical
habitat determinations under the ESA.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Sept. 13, 1979 Memorandum froa Assistant Solicitor, Fish and
Wildlife, to Chief, Branch of Operations,
Office of Endangered Species, re cooperative
agreement between Fish and Wildlife Service
and the Illinois Department of Conservation.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Oct. 11, 1979 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re consideration of economic
and other impacts in designation of critical
habitat.
Exemption (b)(5) applies; thi6 document is
protected by the attorney-client privilege.
Nov. 6, 1979 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re permit
requirements for prehistoric bones of
endangered species.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Nov. 21, 1979 Memorandum from Assistant Solicitor, Fish ard
Wildlife, to Director, ./WS, re delegation cf
Secretarial authority to- Fish and wildlife
Service officials under vhe ESA.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Jan. 18, 1980 Letter from Acting Associate Solicitor to
Deputy General Counsel, EPA, re proposal to
amend the EPA consolidated permit regulations
to incorporate the requirements of the EISA.
, Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
9
-------
Jan. 18, 1980 Memorandum from Acting Associate Solicitor to
Regional Solicitor (Sacramento), re
application of Section 7 of the ESA to BLM
actions on oil drilling permit applications..
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Feb. 11, 1980 Memorandum from Assistant Solicitor / Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re cumulative impacts and
biological assessments under section 7(c).
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Mar. 5, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re the sufficient new
information standard for reproposing
withdrawn endangered species listings.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Mar. 14, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Regional Solicitor (Boston), re
meaning of "insure" in section 7 of the ESA;
other Pittston legal questions.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Apr. 4, 1980 Memorandum from Acting Associate Solicitor to
Regional Solicitor (Denver), re BLM
responsibilities for consultation pursuant to
section 7.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Apr. 9, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Rhode Island's
eligibility for cooperative agreements for
fish, wildlife and plants.
Exemption (b)(5) applies; this document i6
protected by the attorney-client and
deliberative process privileges.
10
-------
Apr. 16, 1980 Meaorandua £roa Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re relationship between
Freedom of Information Act and Endangered
Species Act.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Apr. 28, 1980 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Acting Chief, Office of
Scientific Authority, re disclosure of
protected species site inforaation and
informants' identities under FOXA.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
May 5, 1980 Memorandum froa Assistant Solicitor, Fish and
Wildlife, through Associate Director, Federal
Assistance, FWS, to Chief, Federal wildlife
Permit Office, FWS, re special use permit for
American alligator hides.
Exemptions (b)(5) and (b)(6) apply. This
document is protected by the attorney-client
and deliberative process privileges. The
document also contains references to a
private individual for which disclosure would
involve a clearly unwarranted invasion of
personal privacy.
May 9, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Army Corps of Engineers
permit provisions concerning Endangered
Species.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
May 12, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re legal review of proposed
listing of U.S. range of five animal species.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
May 22, 1980 Letter from Acting Associate Solicitor to
Director, Duty Assessment Division, U. S.
11
-------
Customs Service, re possibility of a duty
exemption for endangered species importation
by the Dept. of the Interior.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
June 4, 1980 Memorandum from Assistant Solicitor, Fish and
Mildlife, to Acting Associate Solicitor, re
the cooperative agreement program under the
ESA.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
June 6, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Ohio's eligibility for an
endangered species cooperative agreement for
fish and wildlife.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
July 16, 1980 Memorandum from Associate Solicitor to
Director, BLM, re comments on proposed 43 CFR
3809 concerning mining claims.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
July 29, 1980 Memorandum from Associate Solicitor to
Solicitor, re application of the ESA to
Native Americans with treaty hunting and
fishing riguts.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Aug. 14, 1980 Note from C. Kaiser, Branch of Fish and
Wildlife, to S. Kemnitzer, Office of the
Secretary, re decision in Industrial Union
Dep't. AFL-CIO v. American Petroleum
institute (the "Benzene Decision").
Exemption (b)(5) applies to this note because
it contains legal analysis and advice
-protected by the attorney-client privilege.
12
-------
Aug. 21, 1980 Note froa c. Kaiser, Branch of Fish and
Wildlife, to S. Kemnitzer, Office of
Secretary, re "Benzene Decision."
Exemption (b)(5) applies to this note because
it contains legal analysis and advice
protected by the attorney-client privilege.
Aug. 27, 1980 Meaorandua froa Assistant Solicitor, Fish and
wildlife, to Associate Director, Federal
Assistance, FWS, re relationships between
perait provisions of the ESA and the Bald and
Golden Eagle Protection Act.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Aug. 29, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re sea turtle conservation
plan.
Exemptions (b)(5) and (b)(6) apply. This
document is protected by the attorney-client
and attorney work product privileges. The
document also contains references to a
private individual for which disclosure would
involve a clearly unwarranted invasion of
personal privacy.
Sept. 11, 1980 Memorandum from Associate Solicitor to
Regional Solicitor (Atlanta), re criminal
prosecution for alleged harassment or harm of
listed eagles.
Exemption (b)(5) applies to this memorandum
because it contains legal analysis ar.d
recommendations provided by the Division of
Conservation and Wildlife to the Regional
Solicitor, Southeast Region; this document is
protected by the attorney-client and
deliberative process privileges.
Sept. 17, 1980 Memoranda from Assistant Solicitor, Fish and
wildlife, to Associate Director, Federal
Assistance, FWS, re Army Corps of Engineers'
permit provisions for listed species.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
13
-------
Sept. 17, 1980 Memorandum from Associate Solicitor to
Associate Solicitor, Energy and Resources, re
Section 7 consultation process and the
Northern Border Gas Pipeline right-of-way
grant.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Sept. 29, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re legality of talcing gray
wolves in order to protect caribou reintro-
duced into the State of Minnesota.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Oct. 22, 1980 Memorandum from Associate Solicitor to
Solicitor, re § 7 standards (i.c., duty to
"insure"; best available scientific and
commercial data).
Exemption (b)(5) applies to this memorandum
because it contains legal analysis and
recommendations provided by the Division of
Conservation and Wildlife to the Solicitor;
this document is protected by the attorney-
client and deliberative process privileges.
Oct. 23, 1980 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re revocation of grazing
permit for talcing grizzly bears.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Nov. 10, 1980 Memorandum from Assistant Solicitor, Fi6h and
Wildlife, to Associate Director, Federal
Assistance, FWS, re eligibility of Wyoming
for limited authorities cooperative agreement
for fish and wildlife.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
14
-------
Nov. 12, 1980 Mamorandusa from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re eligibility of Wyoming
for limited authorities cooperative agreement
for fish and wildlife.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Nov. 17, 1980- Letter from Associate Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re litigation report for DeK&ib
County ConmiBBioTi v. Anrii-u«.
Exemption (b)(5) applies; this letter is
protected by the attorney-client and attorney
work product privileges.
Dec. 3, 1980 Memorandum from Associate Solicitor to Albert
A. Kashinski, General Law, re comments on
Allen-Warner Valley Energy System Secretarial
Issue Document (SID).
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Dec. 11, 1980 Letter from Associate Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re litigation report for Cabinet
Mountains Wilderness/Scotchman's Peak Grizglv
Bears v. Peterson.
Exemption (b)(5) applies; this letter is
protected by the attorney-client and attorney
work product privileges.
Dec. 24, 1980 Memorandum from Associate Solicitor to
Associate Solicitor, Energy and Resources, re
habitat donation under Section 7.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Jan. 6, 1981 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Vermont proposed ESA
legislation and state cooperative agreements.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
15
-------
deliberative process privileges.
Jan. 8, 1981
Memorandum from Associate Solicitor to Albert
A. Kashinski, General Lav, re consents on
Allen-Warner Valley Energy System Secretarial
Issue Document,
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Jan. 9, 1981
Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Freedom of Information
Act and whether draft biological opinions may
be exempted from release.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Feb. 2, 1981
Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re ESA permit and
registration applications under 50 CFR §
17.21(g) and § 17.22; do notice and comment
requirements under § 10(c) apply to
registrations under § 17.21(g)?
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Feb. 24, 1981
Letter from D. Cannon, Fish and Wildlife
Branch, to K. Fuller, DOJ, re kangaroo
legislative history.
Exemption (b)(5) applies; this letter is
protected by the attorney-client and attorney
work product privileges.
Mar. 9, 1981
Memorandum from Acting Associate Solicitor to
Solicitor and Director, FWS, re standard of.
judicial review for biological opinions.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege
Apr. 1, 1981
Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re inclusion of "candidate
species" in lists of species requested by
federal agencies.
16
-------
Exemption (b)(5) applies; this document is
protected by tha attomay-clisnt privilege.
Nay 6, 1981 Memorandum froa Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, ra consultation
responsibilities^on artificial habitats.
Exemption (b)(5) applies; this document is
protected by the attornay-client privilege.
June 24, 1981 tteaorandua from AssistantSolicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS„ ro the incidental taking of
sea turtles.
Exemption (b)(5) applies; this document io
protected by the attorney-client privilege.
July 15, 1981 Memorandum froa D. Cannon, Fish and Wildlife
Branch, to Associate Director, Federal
Assistance, FWS, re response to ICAC's con-
cerns on permit for United Peregrine Society.
Exemption (b)(5) applies; this document is
protected by the attorney-client and attorney
work product privileges.
Sept. 9, 1981 Memorandum from Associate Solicitor to
Assistant Secretary, Fish and Wildlife and
Parks, re falcon exports to Arabian Gulf.
Exemptions (b)(5) and (b)(6) apply. This
document is protected by the attorney-client
and deliberative process privileges. The
document also contains references to a
private individual for which disclosure would
involve a clearly unwarranted invasion of
personal privacy.
Oct. 2, 1981 Note froa Associate Solicitor to Solicitor,
re status of Montana cooperative agreement.
Exemption (b)(5) applies to this note because
it contain» legal analysis provided by the
Division of Conservation and Wildlife to the
Solicitor; this document is protected by the
attorney-client and deliberative process
privileges.
Oct. 23, 1981 Memorandum froa Associate Solicitor to
Associate Director, Federal Assistance, FWS,
17
-------
re applicability of Section 7 to EPA/NPDES
program.
Exeaption (b)(5) applies; this docunant is
protected by the attorney-client privilege.
Oct. 27, 1981 Meaorandua froa Associate Solicitor to
Ragional Solicitor (Danver), re Section 7 and
tha use of surface occupancy stipulations in
oil and gas leasing.
Exception (b)(5) applies; this docuaent is
protected by the attorney-client privilege.
Dec. 2, 1981 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Asaociate Director, Federal
Assistance, FWS, re S 7 consultation on the
Miralani Business Park.
Exeaption (b)(5) applies; this docuaent is
protected by the attorney-client and
deliberative process privileges.
Dec. 16, 1981 Meaorandua froa Associate Solicitor to
Assistant Regional Solicitor, Surface Mining
(Denver), re applicability of ESA § 7
consultation reguireaent to the Office of
Surface Mining (with enclosure).
Exemption (b)(5) applies; this docuaent is
protected by the attorney-client privilege.
Dec. 16, 1981 Meaorandua froa Assistant Solicitor, Fish and
wildlife, to Director, FWS, re Crystal River
research aanageaent plan.
Exeaption (b)(5) applies; this docuannt is
protected by the attorney-client ana
deliberative process privileges.
January 1982 Meaorandua from Associate Solicitor to
Solicitor, Assistant Secretary for Fish and
Wildlife and Parks, and Director, FWS, re
district court decision in Colorado River
Water Conservation District v. Andrus.
Exemption (b)(5) applies; this aeaorandua is
protected by the attorney-client and attorney
work product privileges.
Jan. 12, 1982 Meaorandua froa Assistant Solicitor, Fish ant*
Wildlife, to Associate Director, Federal
18
-------
Assistance, FWS, r® eligibility of Oregon for
a cooperative agreement for fish and
wildlife.
Exemption (b)(9) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Mar. 8, 1982 Memorandum froa Associate Solicitor, through
Associate Solicitor, General Lav, to
Director, FWS# re criteria for Determinations
of Effects under E.O. 12291 and the
Regulatory Flexibility Act for rulemakings
under Section 4 of the ESA.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Mar. 11, 1982 Memorandum from Associate Solicitor to
Associate Director, Federal Assistance, FWS,
re Determinations of Effect for ESA listings.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Mar. 19, 1982 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re the
relationship of the Raptor Amendment of the
ESA to CITES.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
May 19, 1982 Memorandum from Associate Solicitor to
Regional Solicitor (Denver), re continuation
of Montana's eligibility for cooperative
agreement under the ESa.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
July 6, 1982 Memorandum from Associate Solicitor to
Regional Solicitor (Denver), re the Section 7
consultation process and cumulative effects.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Nov. 12, 1982 Memorandum from Associate Solicitor to
Director, FWS, re qualification of
19
-------
Smithsonian Institution to salvage dead
specimens under the Endangered Species Act.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Mar. 10, 1983 Note from Associate Solicitor to Special
Assistant to the Solicitor, re proposed
Corps of Engineers' "statewide" general
"dredge and fill" permit for Maine and ESA
requirements (with attachments).
Exemption (b)(5) applies because this
document contains legal analysis provided by
the Division of Conservation and Wildlife to
the Immediate Office of the Solicitor; it is
protected by the attorney-client and
deliberative process privileges.
Mar. 11, 1983 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re applicability of 5 10(j)
of the ESA to experimental populations of
plants/invertebrates; current versus historic
range; alternative authority for
translocation.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
May 3, 1983 Memorandum from Associate Solicitor to
Director, FWS, re timing of consultations
required by the ESA, FWCA, CWA and MOA
between Departments of Interior and the Army.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
June 29, 1983 Memorandum from Associate Solicitor to Direc-
tor, FWS, re advice on Sec. 7 consultation
procedures to be followed while proposed rule
changes are pending.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
July 13, 1983 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Deputy Associate Director,
Federal Assistance, FWS, re clarification of
§ 9(a)(2)(B) of the ESA, as amended in 1982.
20
-------
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Aug. 18, 1983 Memorandum from Assistant Solicitor, Fish and
Hildlife, to Associate Director, Federal
Assistance, FWS, re eligibility of Vermont
for a full authorities cooperative agreement.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Sept. 7, 1983 Memorandum from Associate Solicitor to
Director, FWS, re ESA conservation
obligations of Federal Agencies; analysis of
§ 7(a)(1).
Exemption (b)(5) applies; this document is
protected by the attorney-client, attorney
work product, and deliberative process
privileges.
Sept. 27, 1983 Memorandum from Assistant Solicitor, Fish and
Hildlife, to Associate Director, Federal
Assistance, FWS, re eligibility of Vermont
for cooperative agreement.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Nov. 22, 1983 Letter from Associate Solicitor to Acting
Assistant Attorney General, Land and Natural
Resources Division, re litigation report for
Friends of Endangered Species v. Jantzen.
Exemption (b)(5) applies; this letter is
protected by the attorney-client and attorney
work product privileges.
Dec. 29, 1983 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Chief, Office of Endangered
Species, re applicability of § 7(a)(2) to
proposed and candidate species.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Jan. 31, 1984 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re eligibility of Oklahoma
for fish and wildlife cooperative agreement.
21
-------
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Feb. 6, 1984 Memorandum from Assistant Solicitor, Pish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Indiana cooperative
agreement submission.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Feb. 29, 1984 Meaorandua from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re threatened species
special rules, law enforcement, and
eligibility of Montana for a full authorities
cooperative agreeaent covering the grizzly
bear.
Exemption (b)(5) applies; this document is
protected by the attorney-client, and
deliberative process privileges.
May 23, 1984 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Section 10(j) of the ESA
and memoranda of understanding with Feaeral
land managing agencies.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
June 21, 1984 Memorandum from Associate Solicitor to Office
of Policy >nalysis, DOI, re draft final pro-
cedural rv.ies for the Endangered Species
Committee.-
Exemption (b)(5) applies; this memorandum
contains legal analysis and recommendations
that are protected by the attorney-client and
deliberative process privileges.
July 20, 1984 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Oklahoma's eligibility
for a full authorities cooperative agreement
for fish and wildlife.
22
-------
Exemption (b)(5) applies; this document is
protected by the sttorn®y°>cli©nt and
deliberative process privileges.
Aug. 21* 1984 Memorandum from Associate Solicitor to Legis-
lative Counsel, re H.R. 5900 (Private Wetland
and Critical Habitat Enhancement and Protec-
tion; Public Lands Acquisition Alternatives).
Exemption (b)(5) applies because the above-
described memorandum contains legal advice
and recommendations provided to an Interior
Department official, which is protected by
the attorney-client and deliberative process
privileges.
Aug. 24, 1984 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Mississippi's eligibility
for a full authorities cooperative agreement
for fish and wildlife.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Aug. 28, 1984 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Puerto Rico's eligibility
for a full authorities cooperative agreement
for fish, wildlife and plants.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
.Oct. 11, 1984 Memorandum from Associate Solicitor to Chief,
Office of Endangered Species, FWS, re Laguna
Madre transmission line § 7 consultation;,
review of OES guidance on incidental taxings
(with attachments).
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Jan. 28, 1985 Letter from Acting Associate Solicitor to.
Assistant Attorney General, Land and Natural
Resources Division, re notice of intent to
sue filed by Friends of the Everglades with
respect to the North Key Largo habitat con-
servation plan.
23
-------
Exemption (b)(5) applies? this latter is
protected by the attorney-client and attorney
work product privileges.
Feb. 27, 1985 Memorandum fro* Associate Solicitor to Asso-
ciate Director, Federal Assistance, FWS, re
regulated take of threatened species for con-
servation purposes.
Exemption (b)(5) applies; this docunent is
protected by the attorney-client and
deliberative process privileges.
Feb. 27, 1985 Memorandum fron Associate Solicitor to Sea
Otter Recovery Coordinator, FWS, re prelimi-
nary draft environmental impact statement on
the proposed translocation of Southern Sea
otters.
Exemption (b)(5) applies because the above-
described memorandum contains legal advice
and recommendations provided to an FWS
official, which is protected by the attorney-
client and deliberative process privileges.
Apr. 15, 1985 Letter from Associate Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re litigation report for National
Wildlife Federation v. Hodel (Steel-Shot
case).
Exemption (b)(5) applies; this letter is
protected by the attorney-client and attorney
work product privileges.
May 15, 1985 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Arizona's eligibility for
a cooperative agreement for fi6h and
wildlife.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
May 30, 1985 Memorandum from Associate Solicitor to Soli-
citor, Assistant Secretary for Fish and Wild-
life and Parks, and Director, FWS, re San
Bruno incidental take permit litigation.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
24
-------
and advice provided -to Interior Department
officials, which is protected by the
attorney-client and attorney work product
privileges.
Sept. 11, 1985 Meaorandua froxi Assistant Solicitor, Pish and
Wildlife, to Regional Director, Region 2,
FWS, re Arizona's eligibility for a
cooperative agreement for. fish and wildlife.
Exemption (b)(5) applies; this docuaont is
protected by the attorney-client and
deliberative process privileges.
Sept. 11, 1985 Memorandum froa Assistant Solicitor, Pish and
Wildlife, to Regional Director (AFA), Region
5, FWS, re proposed amendment to current Ver-
mont endangered species law.
Exenption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Oct. 15, 1985 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re eligibility of Oklahoaa
for a full authorities § 6 cooperative
agreement for fish and wildlife.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Oct. 23, 1985 Memorandum froa Assistant Solicitor, Fish and
Wildlife, to Chief, Office of Legislative
Services, FWS, re effect of lapse of author-
ization for appropriations under ESA.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Nov. 6, 1985 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FWS, re Iowa's eligibility for a
full authorities cooperative agreement for
plants.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
25
-------
Dec. 5, 1985 Memorandum froa Assistant Solicitor, Fish an?
Wildlife, to Associate Director, Federal
Assistance, FWS, r« Ohio's aligibility for a
full authorities cooperative agreeaent for
fish and wildlife.
Exemption (b)(5) applies; this"document is
protected by the attorney-client and
deliberative process privileges.
Dec. 17, 1985 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Associate Director, Federal
Assistance, FffS, re Indiana's eligibility for
a cooperative agreeaent for fish and
wildlife.
Exemption (b)(5) applies; this docuaent is
protected by the attorney-client and
deliberative process privileges.
Feb. 3, 1986 Memorandum from Associate Solicitors for
Conservation and Wildlife, Energy and
Resources, and Indian Affairs, to Solicitor,
re Pyramid Lake litigation issues.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and recommendations provided by three
Associate Solicitors to the Solicitor on
then-pending litigation; the document is
protected by the attorney-client, attorney
work product, and deliberative process
exemptions.
Apr. 2, 1986 Memorandum from D. Gayer, Branch of Fish and
Wildlife, to S. Allender, Acting Assistant
Solicitor, and G. Norton, Associate
Solicitor, re litigation on San Bruno Habitat
Conservation Plan.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and recommendations provided by ? staff
attorney to his supervisors within the
Division of Conservation and Wildlife; the
document is protected by the attorney-client,
attorney work product, and deliberative
process privileges.
Apr. 28,. 1986 Memorandum from Associate Solicitor to
Special Assistant to the Solicitor, re
extraterritorial applicability of ESA and
26
-------
protections afforded exotic endangered or
threatened species (with attachment#).
Sxeaption (b)(5) applies because the above-
described aeaorandua contains legal analysis
provided by the Division of Conservation and
Wildlife to the XB&ediate Office of the
Solicitor; the document is protected by the
attorney-client and deliberative process
privileges.
Apr. 30, 1986 MeaoranduB froa Associate Solicitor to
Acting Associate Solicitor, Energy and
Resources, re protection of special status
plant species on BLtf lands.
Exeaption (b)(5) applies because the above-
described memorandum contains legal analysis
and recoaaend&tions on a then-pending agency
proposal; it is protected by the attorney-
client and deliberative process privileges.
May 27, 1936 Meaorandua froa Acting Assistant Sblicitor,
Fish and Wildlife, to Associate Director,
Federal Assistance, FWS, re Kentucky's
eligibility for a fish and wildlife
cooperative agreeaent.
Exeaption (b)(5) applies; this docuaent is
protected by the attorney-client and
deliberative process privileges.
July 2, 1986 Heaorandua froa Assistant Solicitor, Fish and
Wildlife, to Reviewers, re review of DEIS for
sea otter translocation proposal.
Exeaption (b)(5) applies because the above-
described memorc-ndum contains legal analysis
and recommendations provided to Interior
Department decision makers on a then-pending
agency proposal; the docuaent is protected by
the attorney-client and deliberative process
privileges.
July 11, 1986 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re eligibility of
Montana for ESA § 6 funding for grizzly bear
activities.
Exeaption (b)(5) applies; this docuaent is
protected by the attorney-client and
deliberative process privileges.
27
-------
Sept. 9, 19B6 Meaorandun froa Assistant Solicitor, Pish and
Wildlife, to Director, FWS, re a.
ferry on Nona Island.
Exeaption (b)(5) applies because the above-
described aeaorandua contains legal analysis
and recommendations provided to the FWS
regarding potential litigation; the docunent
is protected by the attorney-client and
attorney work product privileges.
Sept. 19, 1986 Briefing aeaorandua froa Associate Solicitor
to Solicitor, re Defenders of wildHf* v.
ttodel (S 7 extraterritoriality case) (with
attachaent).
Exeaption (b)(5) applies because the above-
described aeaorandua contains legal analysis
and reconaendations provided by the Division
of Conservation and Wildlife to the Solicitor
regarding pending litigation; the docuaent is
protected by the attorney-client, attorney
work product, and deliberative process
privileges.
Oct. 1, 1986 Meaorandun froa Assistant Solicitor, Fish anc
Wildlife, to Assistant Director, Fish and
Wildlife Enhanceaent, FWS, re draft final
rule to list the Little Colorado Spinedace as
a threatened species and to designate its
critical habitat.
Exemption (b)(5) applies because the above-
described aeaorandua contains legal analysis
and recoaaendations provided to the FWS
concerning a then-pending agency proposal;
the document is protected by the attorney-
client and deliberative process privileges.
Oct. 9, 1986 Neaorandua froa Associate Solicitors for
Conservation and Wildlife and Energy and
Resources to Directors of FWS and MMS, re
request for review of biological opinion
concerning hypothetical areawide offshore
oil and ga6 development and production in
the Northern Santa Maria Basin, San Luis
Obispo County, California.
Exeaption (b)(5) applies because the above-
described aeaorandua contains legal analysis
and recoaaendations provided to Interior
28
-------
1
Department officials concerning a than-
pending agency proposal; the document is
protected by the attorney-client and
deliberative process privileges.
Nov. 14, 1986 Moaorandua froa Assistant Solicitor, Fish and
Wildlife, to Assistant Director, Fish and
Wildlife Enhancenent, FWS, re availability of
permits for the iaportatior. of dead endan-
gered species specimens to be used for public
display purposes.
Exception (b)(5) applies; this docunent is
protected by the attorney-client privilege.
Nov. 19, 1986 Letter froa Associate Solicitor to Assistant
Attorney General, Division of Land and
Natural Resources, re litigation report for
Sierra Club v. Marsh. Case No. '861942 S(IEG)
(S.D. Cal., filed Sept. 17, 1986).
Exception (b)(5) applies; this letter is
protected by the attorney-client and attorney
work product privileges.
Dec. 9, 1986 Letter fron Associate Solicitor to Assistant
Attorney General, Land and Natural Resources
Division, re litigation report for Defenders
of wildlife V. Hodel (§ 7 extraterritoriality
case).
Exemption (b)(5) applies; this letter is
protected by the attorney-client and attorney
work product privileges.
Jan. 14, 1987 Letter froa Associate Solicitor to Assistant
Attorney General, Division of Land and
Natural Resources, re legal concerns wiui
respect to the district, court decision i/i
Palila v. Hawaii Departaent of Land and
Natural Resources. Civ. No. 78-0030 (D.
Hawaii, Nov. 21, 1986).
Exception (b)(5) applies; this letter is
protected by the attorney-client and attorney
work product privileges.
Feb. 27, 1987 Keaorandua froa Associate Solicitor to
Legislative Counsel, re H.R. 779 (kangaroo
iaports).
29
-------
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
provided to an Interior Department official;
this document is protected by the attorney-
client privilege.
Mar. 10, 19B7 Memorandum fro* Assistant Solicitor, Fish and
Mildlife, to Director, FWS, re availability
of permits to take depredating endangered
gray wolves.
Exemption (b)(5) applies; this document is
protected by the attorney-client privilege.
Mar. 24, 1987 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re review of Sea
Otter Translocation FEZS, final rule, and
revised Determination of Effects.
Exemption (b)(5) applies because the above-
described memorandum contains legal advice
and recommendations provided to the FWS on a
then-pending agency proposal; the document is
protected by the attorney-client and
deliberative process privileges.
May 5, 1987 Memorandum from Associate Solicitor to
Director, BLM, re BLM responsibilities under
the ESA.
Exemption (b)(5) applies because the above-
described memorandum contains legal advice
provided to an Interior Department official;
the document is protected by the attorney-
client privilege.
June 15, 1987 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re Solicitor's
Office recommendations on draft final rule
to li6t the Bay Checkerspot Butterfly.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis,
advice, and recommendations provided to the
FWS regarding a then-pending agency proposal;
the document is protected by the attorney-
client and deliberative process privileges.
July 23, 1987 Memorandum from Acting Assistant Solicitor,
Fish and wildlife, to Director, FWS, re
Solicitor's Office recommendations on draft
proposed rule to list the Stephens' kangaroo
30
-------
rat undmr s 4 of the ESA.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis,
advice, and recommendations provided to the
FWS regarding a then-pending agency proposal;
the document is protected by the attorney-
client and deliberative process privileges.
Mar. 11, 1988 Memorandum from Assistant Solicitor, Fish and
wildlife, to Assistant Director, Fish and
Wildlife Enhancement, FWS, re Solicitor's
Office recanaendations on draft proposed rule
to list the Roanoke logperch under S 4 of the
ESA.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis,
advice, and recommendations provided to the
FWS regarding a then-pending agency proposal;
the document is protected by the attorney-
client and deliberative process privileges.
Aug. 4, 1988 Memorandum from Acting Assistant solicitor,
Fish and wildlife, to Director, FWS, re
draft proposed rule on technical amendments
to the Southern Sea otter translocation
regulations.
Exemption (b)(5) applies because the above-
described memorandum contains legal advice
and recommendations provided to the FWS
regarding a then-pending agency proposal; the
document is protected by the attorney-client
and deliberative process privileges.
Aug. 23, 198* Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, FWS,.re request for
review and approval of Oregon's revised
authorities for managing endangered plants.
Exemption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Oct. 19, 1988 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Regional Solicitor (Portland),
re review of the FWS draft proposed rule to
determine experimental population status for
an introduced population of Lahontan
Cutthroat Trout.
31
-------
Exemption (b)(5) applies because the above-
described aeaorandua contains legal advice
and recommendations provided to the FWS
regarding a pending agency proposal; the
document is protected by the attorney-client
and deliberative process privileges.
Oct. 26, 1988 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Assistant Director, Fish and
Wildlife Enhanceaent, fWS, re Solicitor's
Office recoaaendations on draft document
addressing experiaental population status for
a new population of Colorado squawfish.
Exeaption (b)(5) applies because the above-
described aeaorandua contains legal advice
and recoaaendations provided to the FWS
regarding a pending agency proposal; the
docuaent is protected by the attorney-client
and deliberative process privileges.
Nov. 8, 1988 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, to Assistant Director, Fish and
Wildlife Enhanceaent, FWS, re Solicitor's
Office recoaaendations concerning draft
proposed rule to authorize the release of an
experimental population of Guaa rails.
Exeaption (b)(5) applies because the above-
described aeaorandua contains legal advice
and recommendations provided to the FWS
regarding a then-pending agency proposal; the
document is protected by the attorney-client
and deliberative process privileges.
Jan. 24, 1989 Letter froa Associate Solicitor to Acting
Assistant Attorney General, Division of
Land anu Natural Resources, re litigation
report Inr natural Resources Defense
Council v. Houston.
Exeaption (b)(5) applies; this letter i6
protected by the attorney-client and attorney
work product privileges.
Apr. 21, 1989 Memorandum from Associate Solicitor to Acting
Legislative Counsel, re H.R. 1268 (National
Biological Diversity Conservation and
Environmental Research Act).
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
32
-------
and recommendations provided to an Interior
Department official; the document is
protected by the attorney-client privilege.
Apr. 21, 1989 Haaorandua froa Associate Solicitor to Acting
Legislative Counsel, re State Departnent's
draft cosraentB on the aaendments to the
Foreign Assistance Act.
Exemption (b)(5) applies because the above-
described aesorandum contains legal analysis
and recoaaondations provided to an Interior
Departaent official; the docuaent is
protected by the attorney-client privilege.
Oct. 20; 1989 Moaorandua froa Associate Solicitor to
Associate Solicitor, Energy and Resources, re
answers to legal questions in the Friant Unit
litigation.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and advice regarding issues involved in
pending litigation; the document is protected
by the attorney-client and attorney work
product privileges.
Oct. 23, 1989 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, FWS, re Allied-siemal
v. Luian (ESA §§ 7 & 9 and CERCLA issues).
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis,
advice, and recommendations provided to the
FWS; the document is protected by the
attorney-client and attorney work product
privileges.
Oct. 26, 1989 Memorandum from Assistant Solicitor, Fish and
Wildlife, to Director, F^S, re Apex land
transfer and ESA requirements.
Sxeaption (b)(5) applies; this document is
protected by the attorney-client and
deliberative process privileges.
Dec. 22, J.989 Memorandum froa Associate Solicitor to Deputy
Solicitor, re endangered species consultation
procedures for relicensing of FERC Projects
Nos. 1417 and 1835, Platte River, Nebraska.
33
-------
Exemption (b)(5) applies because the above-
described aeaorandua contains legal analysis
and recommendati on» provided by the Division
of Conservation and Wildlife to the Deputy
Solicitor; the docuaent is protected by the
attorney-client and dalibarativa process
privileges.
Jan. 16, 1990 Memorandum froa Assistant Solicitor, Fish and
Wildlife, to Assistant Director, Fish and
Wildlife Enhancement, FWS, re Solicitor's
Office recoaaendations on draft proposed
rule to list the prairie sole cricket under
§ 4 of the ESA.
Exception (b)(5) applies because the above-
described aenorandua contains legal analysis
and recoaaendations provided to the FWS on a
pending agency proposal; the docuaent is
protected by the attorney-client and
deliberative process privileges.
Jan. 16, 1990 Hemorandua froa Associate Solicitor to Legis-
lative Counsel, re coaaents on H.R. 3753 (a
bill to aaend §§ 4 and 7 of -the ESA).
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and advice provided to an Interior Department
official; the docuaent is protected by the
attorney-client privilege.
Jan. 16, 1990 Memorandum from Associate Solicitor to Legis-
lative Counsel, re S. 1554 (Truckee-Carson-
Pyramid Lake Water Rights Settlement Act).
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and advice provided to an Interior Department
official; the document is protected by the
attorney-elient privilege.
Fet. 15, 1?90 Hemorandua froa Associate Solicitor to Direc-
tor, FWS, re Bureau of Reclaaation request
for formal consultation on the San Joaquin
River Basin Resource Management Initiative
(without attachments).
Exemption (b)(5) applies because the above-
described memorandum contains legal advice
provided to the FWS regarding administrative
aatters in pending litigation; the docuaent
34
-------
is protected by tfea attoraey-clisrrt sad
attorney work product privileges.
Mar. 23, 1990 Meisiorandms £ra associate Solicitor to Legis-
lative Corneal, ro H.R. 3941 (Trucke^-Carson-
Pyramid Lffik® I3at®r Rights Sattleaent Act).
Exeaption (b)(5) applies because the above-
described BQsaorandira centalns legal analysis
and advice provided to am Interior Departaent
official; the document is protect
-------
attachments).
Exemption (b)(5) applies because th« above-
described note contains legal analysis and
reconaendations provided by the Division of
Conservation and Wildlife to the Solicitor;
the docunent is protected by the attorney-
client and deliberative process privileges.
July 5, 1990 Menorandun from Assistant Solicitor, Pish and
. Wildlife, to Deputy Director, FWS, re
petition to intervene in the Kingsley Dan
Projects (with attachment).
Exemption (b)(5) applies because the above-
described memorandum and attachment contain
legal analysis and advice provided to the
FWS; the document is protected by the
attorney-client privilege.
July 20, 1990 Memorandum from Acting Associate Solicitor to
Legislative Counsel, re S. 1554 (Truckee-
Carson-Pyramid Lake Water Rights Settlement
Act); review of Administration draft
proposal.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and advice provided to an Interior Department
official; the document is protected by the
attorney-client privilege.
July 30, 1990 Memorandum from Acting Associate Solicitor,
Conservation and Wildlife, and Associate
Solicitors for Energy and Resources and
Indian Affairs, to Solicitor, re S. 1554
(Truckee-Carson-Pyramid Lake Water Rights
Settlement Act); review of Administration
draft proposal.
Exemption (b)(5) applies because the above-
described memorandum contains legal analysis
and recommendations provided by three
Divisions of the Solicitor's Office to the
Solicitor; the document is protected by the
attorney-client and deliberative process
privileges.
Sept. 7, 1990 Memorandum from Acting Assistant Solicitor,
Fish and wildlife, to Legislative Counsel,
re comments on H.R. 3960 (Central Utah
Project Completion Act, etc.).
36
-------
Exemption (b)(5) applies because the above"
described aeaorandua contains legal analysis
and advice provided to an Interior Departnent
official; the doeunent is protected by the
attorney-client privilege*
Sept. 14, 1990 Meaorandua froa Assistant Solicitor, Fish and
Wildlife, through Acting Associate Solicitor,
to solicitor, re Aniaas-La Plata Project and
ESA issues.
Exemption (b)(5) applies because the above-
described aeaorandua contains legal analysis
and recommendations provided by the Division
of Conservation and Wildlife to the
Solicitor; the docuaent is protected by the
attorney-client and deliberative process
privileges.
37
-------
UNITED STAGES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON. D.C. 2C243
APR 171951
Memorandum
To: Director, Fish and Wildlife Service
From: Associate Solicitor, Conservation and Wildlife
Subject: Fisn and Wildlife Service Regulations Defining "Harm"
under Section 9 of tne Endangered Species Act
Tnis memorandum examines the statutory authority underlying the
Definition of "harm" contained in FwS regulations implementing
Section 9 of the Endangered Species Act, 16 U.S.C. 1538. Me
conclude that the present definition exceeds the scope of
authority conferreo Dy Section 9. We recommend that the
Service's definition of "narm" De clarified so that only those
nasitat modifications that actually injure or kill wildlife are
suoject to Section 9 criminal penalties.
Discussion
Section 9 of the Endangered Species Act (ESA), 16 U.S.C. 1538,
makes it illegal to "take" an endangered species of fish or
wiloli'T'e. That term is defined as follows:
The term "take" means to harass, harm,
pursue, hunt, shoot, wound, Kill,
trap, capture or collect, or to
attempt to engage in any such conduct.
16 U.S.C. 1532(19). Fish and wildlife Service Regulations
oefine "harm" as follows:
"Harm" in the definicion offtake" in
tne Act means an act nr omissidn .'hich
actually injures or kills wildlife,
Including acts which annoy it to such
an extent as to significantly disrupt
essential Behavioral patterns, 'which
include, Out are not limited to,
oreeoing, feeding or sheltering;
significant environmental modification
or oeoraoation wnicn nas sucn effects
is incluoeo within tne meaninc of
"narm."
-------
;; c.r.n. 1?.3 (ersnasis aaaeo).
Tnis definition contains a significant ambiguity. If tne words
"sucn ef'ects" are read to refer to the phrase "significantly
disrupt essential aenavorial patterns," then any significant
environmental modification or degradation that disrupts
essential oenavioral patterns will fall under the definition of
harm, regardless of whether an actual killing or injuring of
wildlife is demonstrated. Under such an Interpretation a
snowing of habitat modification alone would be sufficient to
invoke the criminal penalties of Section 9. As discussed
below, such a result is Inconsistent with the intent of
Congress. 1/
A. The Endangered Species Act
ESA concerns itself with two major causes of species decline:
(1) tne commercial and sport taking of individual animals, and
(2) tne Destruction or degradation of species' habitats. The
Act creates a bifurcated system for dealing with these distinct
proolsms. Section 7, 16 U.S.C. 1536, requires federal agencies
to insure tnat actions tanen are not likely "to jeopardize the
continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of
nasitat of such species ..." Further, Section 5 authorizes
lane acquisitions as an additional means for preserving the
naaitat of listed species. 16 -U.S.C. § 153*. Together, these
two sections were Designed to address the threatened
destruction of habitat for listed species. Section 9, on the
otner'hano, prohibits all actions that constitute an actual
taking of an endangered species of fish or wildlife. 16 U.S.C.
1536.
±/ Each of tne four published articles that has
considered the suDject concludes that the Service's definition
is overoroac. Bean, Tne Evolution of Netona^ wildlife Law
395-97 (1977); Note, Enoanqered Species Act: Constitutional
Tension ano Regulatory Discord, a Colum. J. Ervt'l L. 97, 100
n. i? u?77J; Note, Endangered- Species Act cf 1973:
Preservation or Panoemonium? 5 Envt'l L. 29, 38—67 (1974);
Note, Qpligations jf Federal Agencies Under Section 7 of the
Enoanqereo Species Act of 1973, 28 Stan. L. Rev. 12**7, 1251 n.
36 (i976).
2
-------
Tne Act's Definition of "ta«e" contains a list of actions tnat
illustrate the intended scope of tne term: harass, narm,
pursue, nunt, shoot, wound, kill, trap, capture, or collect or
attempts to engage in any sucn conduct. With the possible
exception of "narm," these terms all represent forms of conduct
that are directed against and likely to injure or kill
lnoividual wildlife. Under the principle of statutory
construction, ejusdem qcnerls. where general words accompany
words of specific meaning, such general words are construed as
applying only to actions of the same class as those
specifically mentioned. Goldsmith v. U.S., 42 F.2d 133 (2d
Cir. 1948). Applying this principle to tne present
construction proDlem, the term "harm" should be interpreted to
Include only those actions that are directed against, and
likely to injure or Kill, individual wildlife.
Also applicable here is the rule that provisions of a statute
snould not be construed in a manner that renders other
provisions of the statute superfluous. If the Service's
Definition of "harm" is interpreted to prevent habitat
moaificstions, without a further finding of actual injury to a
listes species, Section 9 could be violated in most instances
in wnicn Section 7 consultation is called for. That is, it
woulo oe counterproouctive for 'a federal agency to initiate
Section 7 consultation over a proposed private action that
woulo s.ignificantly modify a listed species habitat, if such
private activity were already proscribed under Section 9. Such
a construction would render Section 7 largely unnecessary. See
Sean supra a. 1 at 397.
B. Legislative History
Tne legislative history reinforces the distinction between the
taking pronioition of Section 9 and the habitat protection
provisions of Section 7. Representative Sullivan, whose
committee reported the House bill, stated:
For the most part, the principal
threat to animals stems from the
destruction of tneir nabltat. The
destruction may be intentional, as
would be tne case in clearing of
fields and forests for development of
resource extraction, or it may be
unintentional, as in the case of tne
spread of pesticides beyond tneir
target area, wnether it is
intentional or not, however, the
3
-------
!
result is unfortunate for tne species
of .animals that depend on tnat
haoitat, most [ofj whom are already
living on tne edge of survival. h.R.
37 will meet this problem by providing
funds for acquisition of critical
habitat. It will also enable the
Department of Agriculture to cooperate
with prilling landowners who desire to
assist in the protection of endangered
species, but who are understandably
unwilling to do so at excessive cost
to themselves.
Another hazard to endangered species-
arises from those who would capture or
kill them, for pleasure or profit.
There is no way that the Congress can
make it less pleasurable for a person
to take an animal, but we can
certainly make it less profitable for
them to do so. (emphasis added)
119 Ceng. Rec. HB-1B (daily ed. Sept. 18, 1973).
Tne fact that Congress considered the problems of takings and
haoitat modifications separately does not, o* course, preclude
tne possibility of overlap between the two regulatory schemes.
Indeea, Congress seemed to anticipate such overlap when it made
the following statement, taken from the House Report:
"Take" is defined broadly. It includes
harassment, whether intentional or
not. Tnis would allow, for example,
the Secretary to regulate or prohibit
tne activities of bird-watchers wnere
the effect of trvore activities might
disturb the birds and make it
difficult for them to hatch or -raise
their young, (emphasis added) ;
On its face this statement implies that an action such as
haoitat modifications which do not result in the actual
injuring or killing of wildlife may nonetheless constitute a
taking ("where the effects of these activities might disturb
birds ..."}. we think it. noteworthy, however, that the
statement is limited to acts of harassment. "Harass" is
defined-at 50 C.F.R. 17.3 as follows:
4
-------
"Harrass" in tne Definition of "take"
in the Act means an intentional or
neqliqent act or omission which
creates tne likelihood of injury to
wildlife by annoyinQ it to such an
extent as to significantly disrupt
normal behavioral patterns which
include, but are not limited to,
breeding, feeding or sheltering.
(emphasis added)
Under this definition two elements must be sho^n before a
finding of harassment can be made: (1} likelihood of injury to
wildlife, and (2) some degree of fault, either intentional or
negligent. Because the definition contains an element of
fault, it will not result in criminal liability for habitat
modifications unless it is shown that the defendant knew or
reasonably snoulo have known that his actions would be likely
to injure wildlife. Thus a private landowner who wishes to
develop land tnat serves as habitat for an endangered species
may oo so if reasonable measures are taken to avoio injury to
wildlife. The same is not true, however, of the definition of
"harm." That definition adopts a strict liability standard
which would impose criminal penalties on habitat modifications
generally regardless of fault. ''Thus under the oefinition of
"harm" a private landowner may be criminally liable for
significant habitat modifications regardless of the
reasonableness of his efforts to mitigate harm to individual
wildlife.
An early version of the bill that became ESA specifically
included "destruction, modification, or curtailment of habitat
or range" within the definition of ''take" but this was deleted
from tne final act. S. 19B3. 93d Cong., 1st Sess. §
3(6)(A)(1973). Sucn deletions generally militate against a
conclusion that Congress intended a result that it expressly
aeclinea to enact. See Gulf Oil Corp. v Copp Paving Co., 419
U.S. 166 (197M. Accordingly, the Service's definition of
"harm" should be clarified so that only, those habitat
modifications that result in the actual killing or injuring of
wildlife will te suDject to Section 9 criminal penalties.
0. Case Law
The limited case law interpreting the definition of "harm"
indicates judicial confusion over the proper scope of the
term. The Supreme Court mentioned the definition of "harm" in
TV A v. Hill, 437 U.S. 153 (1978), but did not clarify its
meaning. It said in regard to the Tellico Oam situation, "tw]e
5
-------
ac not understand now TVA intends to operate Tellico Dam
•ithout 'harming' the snail darter." 437 U.S. at 184 n. 30.
*e interpret the court's statement only to apply to the
situation where an action would both degrade habitat and kill
individual fish. 2/ Such an interpretation is consistent with
the approach adopTedin this memorandum.
Only two cases have thus far interpreted the concept of
"harm". In Sierra Club v. froehlke. 534 F.2d 1289 (8th Cir.
1576), tne Sierra Club sought to enjoin construction of a
proposed dam alleging, inter alia, a violation of Section 9 of
tne Endangered Species Act. In a brief discussion, of United,
if any, assistance on the habitat modification question, the
court rejected plaintiffs' taking allegation, noting that a
violation of Section 9 "rests upon the asserted ground that the
erection of the dam is a 'clear attempt to harass or harm' the
Indiana bat." 534 F.2d at 1304. The court's statement would
seem to imply tnat a showing of specific intent to harass or
nsrir. is necessary to prove a taking, a position inconsistent
*itn the strict liaoility prohibitions established by Sections
9 and 11 and tne present- regulatory definition. Significantly,
I7 Tne Supreme Court in TVA v. Hill recited the findings
of tne district court that construction of Tellico Dam "would
na
-------
nowever, ProenlKe was decided prior to promulgetlon of the
"narm" definition, 64 Fed- Reg. 44^.15 (September 26, 1975), and
tne court therefore lacked the benefit of an agency
interpretation. 3/
Tne second case interpreting the definition of "narm* is Pallia
v. Hawaii Department of Land 8nd Natural Resources, 471 P.
*,.nn- tD. Haw. 1979). aff'd. NO- 79-4636 (9tn Cir. Feb. 9,
1981). This case did, dn its face, direct its attention to
haoitat modification. In Pallia. Section 9 was invoked by the
Sierra Club to prevent the State of Hawaii's wildlife agency
from allowing feral goats and sheep to roan in the critical
habitat of the palila, an endangered bird species. The
plaintiffs alleged that because the state hs
-------
471 F.Supp. at 995. £/
In & brief opinion, the Ninth Circuit Court of Appeals affirmed
the district court's Decision in Pallia. The court's
ciscussion of the taking issue demonstrates fundamental
confusion over tne distinction between habitat modifications
end takings. On the basis of the F*S definition of harm, the
Ninth Circuit concluded that a taking had occurred. Slip op.
at 287. The court's discussion of its finding strongly
suggests that it confused the taking prohibition of Section 9
with the habitat modification provisions of Section 7. The
court rested its conclusion on the fact that "it was shown that
the Palila was endangered by the activity."- Id. Citing TVA v.
Hill, supra, the court noted its belief that Tts conclusion was
consistent with the Act's legislative history which showed
"tnat Congress was informed that the greatest threat to
enoangered species is the destruction of their natural
habitat." Id.
Z7 On its face tnis interpretation is in accord with the
approich taken in this memorandum. The difficulty with Palila
is that the standard was misapplied to the fizts of the case.
The district court, in a footnote, acknowledged that available
estimates snowed the Palila population to have actually
increased since the onset of the state's grazing program, yet
speculated tnat those estimates may nave been "deceptively
nigh" and went on to conclude that a taking had occurred". 471
F. Supp. at 988 n. 2. Accordingly, the district court's
recital of the proper rule notwithstanding,' Palila can be read
as nolding that nasitat modification alone may constitute
"narm." Furthermore, the issue of whether the Service's
definition of "narm" exceeds statutory authority was neither
oriefed by the parties nor addressed by the court in Pallia.
unoer. tne rule of Webster v. Fall. 266 -U.5. 507, 511 (1925),
questions not brought to a court's attention "are not to be
consiaereo as having been so decldeo as to constitute
precedents"..
B
-------
As tne result of tne FwS overly brcao definition of "harTi", the
Ninzn Circuit Decision in Pallia erroneously supports the view
tnat nabitat modifications alone ma/ constitute "harm." The
implications of sucn a decision are far-reaching. The
discussion set forth above indicates that the present
definition of "harm," as interpreted by the Court of Appeals in
Pelila, exceeds the statutory authority conferred by Section 9
of the Act. Accordingly, we recommend that the Service clarify
its definition to prevent the result reached in Pallia.
Conclusion
In view of tne foregoing discussion, we recommend that the
Service's definition of "harm" at 5D C.F.R. 17.3 be modified to
read as follows:
bcc: Solicitor Docket
Div Chror. File (2)
SOL r»
SOL Tn Tiles
DCA:r.:o:::ib/i-2078i x2i72
"Harm*1 in the definition of "take"
in the Act means an act or omission
which actually injures or kills
wildlife.
J. Roy Spradley, Jr
9
-------
s Department of the Interior
'ICE OF TIIE SOLICITOR
MAILING ADDRESS*
P. a BOX 25007
ffiwra eannw nwn
DENVER. CO 80ZZ5
June 9, 19B1
Memorandum
Tot Assistant Regional Director, FWS, Region 6,
Denver (AFA)
From: Regional Solicitor, Rocky Mountain Region
Subject: HUD Delegation of Endangered Species Act Consultation
Requirements
This is to explain the oral advice given to your Salt Lake
City office regarding the effect of the Community Development
Act of 1974, 42 U.S.C. 5302 et Beg, on endangered species
consultations. In thi6 Act, Congress permitted the Secretary,
Department of Housing and Urban Development (HUD), to
release funds to applicants for community development
facilities who assume all the responsibilities for environ-
mental review under NEPA and under other environmental laws.
The Secretary was to specify in regulations which environ-
mental review responsibilities the applicants were to comply
with in the same manner as if HUD were building the project.
These environmental review and decisionmaking responsibilities
which were to be delegated by regulation were to include
responsibilities under NEPA and other provisions of law
which further the purposes of NEPA. The implementation of
the Endangered Species Act furthers the purposes of NEPA by
aiding in the fulfillment of trustee responsibilities for
the environment, by preserving important natural aspects of
our heritage and by maintaining an environment which supports
diversity, 16 U.S.C. 4331(b)(1), (4).
The Secretray was to consult with CEO before issuing the
regulations. The Secretary, before releasing funds, must
approve tbe applicant's certification tbat it has carried
out its responsibilities under the law listed in the regula-
tions. Congress provided that such certification is deemed
to satisfy HUD'b responsibilities under these statutes.
Therefore, Congress has established authority for HUD, by
regulation, to delegate Section 7 responsibilities to an
applicant.
United State
OFF
-------
In 24 C.F.R. 58.22(c), HUD has done just. that. Its regula-
tions state that the applicant shall consult with -the
Department of the 'Interior if the action nay affect, an
endangered species.i/ However# HUD maintains a monitoring
role in this process, remains accountable for its decisions,
and when given notice of irregularities, has a responsibility
to see that procedural requirements are met. Colony Federal
Sav. and Loan Ass'n v. Harris, 282 P. Supp. 296 (W.D. Pa.
1980}. In addition, as stated above, HUD must approve the
applicant's certification that the Section 7 consultation
procedures have been complied with before releasing funds; it
remains ultimately responsible.
I advised the Salt Lake office Endangered Species personnel
that consultation can take place with the applicants for
community development funds instead of with HUD. The FWS
regulations provide for non-Federal representatives to be
authorized to participate in the consultation process
pursuant to approved counterpart regulations but the ultimate
responsibility for compliance with Section 7 procedures
remains with the federal agency, 50 C.F.R. 402.04(d). This
advice is consistent with the regulations. Z advised that
HUD should receive copies of all correspondence so it can
effectively monitor the process. In the event the applicant
does not do an adequate biological assessment or FWS does
not agree with its conclusions, FWS should notify the
applicant, with a copy to HUD. "If the disagreement cannot
be worked out, FWS should notify HUD of its views, with a
copy sent to the applicant. Since HUD has -to approve the
applicant's certification, HUD legally remains the ultimate
decisionmaker.
Margot Zallt.i
For the Regional Solicitor
Rocky Mountain Region
1/ It should state threatened or endangered species.
2
-------
-&0-.
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON. DJG, 20240
OE1
AUG 2 7 081
Memorandum
To:
Subject
From
Director, Fish and Wildlife Service
Associate Solicitor. Conservation and Wildlife
Cumulative Effects to be Considered Under Section
7 of the Endangered Species Act
This memorandum sets forth the legal requirements for
consideration by federal agencies of the "cumulative effects"
of other projects and Impacts in determining whether a
particular proposed action complies with section 7(a) of the
Endangered Species Act (ESA or Act), 16 U.S.C. 1536(a). The
Solicitor has now withdrawn all prior legal opinions 1/ on
cumulative impacts and section 7. This memorandum shall
control the scope of consultation and cumulative Impact
analysis under the Endangered Species Act.
Section 7 requires all federal agencies, in consultation with
the Fish and wildlife Service (FtfS or Service), to Insure that
their actions are not likely to jeopardize the continued
existence of endangered or threatened species, or adversely
modify their critical habitats. The Service consults with
federal agencies and renders a biological opinion on the
effects of agency action upon listed species, pursuant to
section 7(b), 16 USC 1536(b).
Consideration of the legal requirements for cumulative effects
analysis arose in 1978, as the result of section 7
consultations for two water development projects on the Ncrtt.
and South Platte Rivers: the Grayrocks Dam and the Narrows
Project. As proposed, both projects would affect downstream
17 65 Interior Dec. 275 (July 19, 1978) (supplemented
July 24, 1978). An earlier Deputy Solicitor opinion Issued on
Hay 25, 1978, was withdrawn on June 5, 1978. (Copies attached).
-------
flows in the Big Bend area of the Platte Rive; in Nebraska, an
area designated as critical habitat for the .whooping crane.
During these consultations,, the Service requested a Solicitor's
Opinion on whether section 7 requires consideration of the*
effects of other water projects in the area which were then in
the planning or construction phases, would affect the crane's
habitat, and would have iapacts which eight be cumulative to
those of the proposal at hand.
An opinion Issued on July 19* 1978, concluded that federal
agencies must consider the cuauletive effects of other
projects, whether federal, state or private, during
consultations under section 7. Although the July 19 opinion
did not expressly define the tern "cumulative effects", a July
24, 1978 opinion stated that for any ecosystem upon which an
endangered or threatened species depends, all pending project
Impacts must be considered if those Impacts can reasonably be
anticipated to occur either before or after the completion of
the project which is the subject of consultation.
For the reasons that follow, the definition of cumulative
effects used in these prior opinions is inappropriate when
applied to section 7.
Consideration of Cumulative Effects Under Section 7
The previous Solicitor's Opinions used concepts developed in
nepa law 2/ which should not be applied, without modification,
to section 7 consultations. The first reason is that the
2/ The Council on Environmental Quality regulations
implementing the National Environmental Policy Act (NEPA), 42
U.S.C. § 4332(2)(C)j define the term "cumulative impact" as —
the impact on the environment which
results from the incremental Impact
of the action when added to other
past, present, and reasonably
foreseeable future actions regardless
of what agency (Federal or
non-Federal) or person undertakes
such other actions. Cumulative
impacts can result from individually
minor but collectively significant
actions taking place over a period of
time.
40 CFR 1508.7 (1980).
-------
I
substantive consequences of requiring such cumulative effects
to be considered under section 7 differ fro# the procedural
consequences of environmental planning statutes such as NEPA.
Section 7 is a substantive statute which provides:
Each federal agency shall, in
consultation with and with the
assistance of tite Secretary [of lite
Interior or Commerce], insure 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 habitat of such
species which is determined by the
Secretary, after consultation as
appropriate with the affected States,
to be critical. . . .
16 U.S.C. 1536(a)(2). The Supreme Court, in interpreting a
slightly different, earlier version of section 7, has noted the
difference from NEPA:
NEPA essentially imposes a
procedural requirement on agencies,
requiring them to engage in an
extensive inquiry as to the effect
of federal actions on the
environment; by way of contrast,
[section 7 of] the 1973 Act is
substantive in effect, designed to
-.revent the loss of any endangered
Vpecies, regardless of the cost.
Tennessee Valley Authority v. Hill, 437 U.S. 153, 188 n.34
(1978) (Emphasis in original).
A wholesale adoption of the cumulative effects approach under
NEPA is thus inappropriate because prerequisite authority for a
proposed action subject to consultation could be denied because
3
-------
I
of the effects of other speculative and unrelated future
actions which might be likely to jeopardize s listed species.
This substantive result is quite different from that under
planning statutes such an. NEPA, where an analysis of the
cumulative effects of other unrelated future actions means only
that such effects be considered before proceeding crlth the
proposed action undergoing environmental review. See. Natural
Resources Defense Council v. Calloway. 524 F.2d 79~~?2d Cir.
1979).
The second reason for not adopting NEPA's approach to
cumulative effects analysis under section 7 is that all other
future federal actions will themselves be subject to the
restraints of section 7 at some later date. It is, therefore,
more appropriate to consider the effects of future federal
actions in a given area at the time consultation under section
7 is Initiated for those actions. That is, the Impact of
future federal projects should be addressed sequentially,
rather than collectively, since each must be capable at some
point of individually satisfying the standards of section 7.
Thus for federal projects, section 7 provides a "first-in-time,
first-in-right" process whereby the authorization of federal
projects may proceed until it is determined that further
actions are likely to jeopardize the continued existence of a
listed species or adversely modify its critical habitat.
Environmental planning statutes such as NEPA do not impose such
substantive limitations on future federal conduct, and so it
is more appropriate for them to require the collective
consideration of reasonably foreseeable, future federal
activities. The substantive nature of section 7, however,
suggests that a project-by-project sequential review of federal
actions Is a more appropriate approach for endangered species
consultation.
A recent case which considered NEPA and the ESA side by side in
a given factual situation implicitly recognized different
approaches for cumulative impact analysis under NEPA and the
ESA, requiring broad agency consideration of cumulative Impacts
under NEPA while focusing on a more limited analysis of Impacts
under section 7.
In North Slope Borough v. Andrus. 486 P. Supp. 332 (D.D.C.
I960), revd.on other grounds, 642 F.2d 589 (D.C. Cir. I960),
the court considered NEPA and ESA compliance for offshore oil
and gas leasing. Both the district and appeals courts held
that the cumulative effects of "other significant Federal and
state energy development projects ... in progress and planned
for the North Slope Region,** had to be considered in the E1S.
486'F. Supp. at 347; 642 F.2d at 600. The cumulative effects
4
-------
of these other actions, however, were not mentioned by eithei
court in their discussion of the proper scope of agency review
under section 7. Instead, for section 7 purposes, the courts
only focused on the impacts of the lease sale itself. 466 F.
Supp. at 350-51; 642 F«2d at 608-609* Thus, though both courts
required consideration of the cumulative effects of unrelated
future state and federal actions for purposes of NEPA, each
implicitly endorsed a more Halted review of the leasing
proposal under section 7.
Section 7 Consultation Process
Having concluded that limited analysis of cumulative effects is
required under section 7, we will now discuss how that analysis
should occur.
Obviously the first task in consultation is to define the scope
of the project under review. In the case of construction
activities, a "project" is both the proposed activity Itself
8nd any Connected" activity as well. Connected activities are
those which are related to (interrelated) or dependent upon
(interdependent) a proposed project. Interdependent actions
are those which have no independent utility apart from the
proposed project. Interrelated actions are those which are
part of a larger project and cannot proceed unless other
actions are taken previously or simultaneously. 3/ Thus, in
the case of a resevolr project with a proposed lFttice work of
Irrigation csnals, in all likelihood the canals would be
considered part of the "project" for purposes of section 7
consultation because it is unlikely that they would have any
independent utility but for the impoundment.
3/See Sierra Club v. Calloway. 499 F. "»d 982 (5th Cir.
1974)~ Friends of the Earth v. Coleman. 518 F.2d 323 (9th Cir.
1975); Trout Unlimited v. Morton. 509 F.2d 1J76 (9th Cir.
1974); Sierra Club v. Stamm. 507 F.2d 7BB (8th Cir. 1974);
Sierra Club v. Froehlke. 392 F. Supp. 130 (0. Mo. 1975), aff *d
534 F.2d 1289 (5th Cir. 1975); Environmental Defense Fund v.
Armstrong. 356 F. Supp. 131 (N.O. Cal. 1973). aff'd 487 FTTd
814 (?th Cir. 1974); 40 C.F.R. § 1508.25(a).
See bIsq Atchison. Topeka and Sante Fe R.R. v. Callaway.
382 F. Supp. 610 (0.0.C. 1974); City of Rochester v. U.S. Post
Office. 541 F.2d 967 (2d Cir. 1976T
5
-------
Once the "project0 has been defined, the consultation team
should then focus on analyzing the environmental baseline in
the affected area. This is necessary for determining what the
environmental "status quo" is going to be at the time of
consultation on the proposed project. The issp&cts of the
project under review should then be measured against this
environmental baseline.
In determining the environmental baseline, the consultation
team should consider the past end present impacts of all
projects and human activities in the area, regardless of
whether they are federals state or private in nature. This is
logical since the actual impacts of these projects and
activities are not dependent upon the origin of their
sponsorship; rather, they all are contributing influences trhlch
mold the present environmental status quo of any given area.
Furthermore, the consultation team should consider as part of
the environmental baseline the anticipated impacts of all
proposed federal projects in the affected area which have
previously been the subject of section 7 consultation and
received a favorable biological opinion. This is consistent
with the "first-in-time, first-in-right" approach discussed
earlier, since a project passing muster under suction 7 is in
effect allocated the right to consume (and is presumed to
utilize) a certain portion of the remaining natural resources
of the area. It is this "cushion" of remaining natural
resources wuich is available for allocation to projects until
the utilization is such tnat any future use may be likely to
jeopardize a listed species or adversely modify or destroy its
critical habitat. £/ At this point, any additional federal
activity in the area requiring a further consumption of
resources would be precluded under section 7.
However, the consultation team should not consider as part of
the environmental baseline the anticipated Impacts of future
federal projects which have not been previously reviewed under
section 7. Those projects are not part of the environmental
4/ Me recognize that a determination of the size of this
so caTled "cushion" may be difficult to make in some instances
and may escape enacting delineation and consist of merely a
range of anticipated impacts and effects. Nevertheless, we
conclude that the 1979 Amendments to the Act requires some sort
of final biological analysis and recommendation to result from
the consultation process. 125 Cong. Rec. 9650 (Oct. 24, 1979);
H.R. Rep. No. £97 96th Cong., 1st Sess. 12 (1979).
6
-------
baseline and have not had their priority set under the
first-in-time system. They would undergo separate review by
the consultation team and could only be authorized if it was
subsequently concluded that a sufficient "resource cushion"
still remained, or if an exemption was granted by the
Endangered Species Committee under subsection 7(h) of the ESA.
Tne impact of state or private actions which are
contemporaneous with the consultation in process should also be
factored into the environmental baseline for the project area.
Having thus established an environmental baseline, the
consultation team must then determine what the direct and
Indirect effects of the project under review will be. Such
effects must be analyzed as part of the consultation process.
See Tennessee Valley Authority v. Hill. 439 U.S. 153 (1978);
National Wildlife Federation v. Coleman. 529 F. 2d 1064 (5th
Clr. 1976); See also North Slope Borough, v. Andrus. 486 F.
Supp. 332 (D.D.C.). atf'O In part and rev'd In part. 642 F.2d
569 (D.C. Cir. 1980).
Finally, the consultation team should consider the "cumulative
impacts" of future state or private sections where such actions
are reasonably certain to occur prior to the completion of the
federal project. A non-federal action is "reasonably certain"
to occur if tne action requires the approval of a state or
local resource or land use control agency and such agencies
nave approved the action, and the project is ready to proceed.
Other indicators which .nay also support such a determination
Include whether the project sponsors provide assurance that the
action *111 proceed, whether contracting has been initiated,
wnether there is obligated venture capital, or whether State or
local planning agencies Indicate that grant of authority for
the action is imminent. These indicators must show more than
the possibility that the .ion-federal project will occur; they
must demonstrate with reasonable certainty that it will occur.
Tne more that state or ."-ocal administrative discretion remains
to be exercised before a proposed state or private action can
proceed, the less there is reasonable certainty that the
project will be authorized. In summary, the consultation team
should conslOer only those state or private projects wnich
satisfy all major land use requirements and wnich appear to be
economically viable.
0. Koy Spradley,
7
-------
7%0
Department of the Interior
ce of the solicitor
MOUNTAIN REGION
SIMMS STREET - SUITE 430
LDEN, COLORADO 80401
March 1, 1990
MAILING ADDRESS
P.O BOX 23007
DENVER FEDERAL CENT!
DENVER, COLORADO 80
FWS.RH.059X>V"'r>
N. ~c-0-
Memorandum^-,.. u
To:
Subjact:
Regional Director, Region 6r Pish and Wildlife Service
Regional Solicitor, Rocky Mountain Region
Request for Legal Opinion Concerning Section 7 Consulta-
tion for Killing Claim T-nwrfa Patented by the BLM (Bureau
of Land Management)
In your memorandum of January 17, 1990, you asked a series of
questions on BUI's authority and responsibility to consult under
section 7 of the ESA (Endangered Species Act) when issuing mineral
patents. Your Helena field office is concerned because proposed
activities on lands patented by BItf are within important grizzly
bear habitat in the Cabinet Mountain-Yaak ecosystem. These
actions may also require approval from the Forest Service.
Although the background information relates only to mineral
patents issued under the mining law, 30 D.S.C. 21 et seq., the
questions are broadly worded and could apply to any patenting
action by the BLM. However, BIK issues patents under numerous
authorities and the answers to the questions would be different
for different authorities. Therefore, I will respond to your
questions only in reference to Bin's authority to issue patents
£or mining claims.
1. - Your first questions are, 'Does the Act and Section 7
consultation apply to the Bureau (nonditfcretionary actions) which
patent public lands to private ownership? Are they indeed
nondiscretionary?"
Consultation under section 7 of the Endangered Species Act only is
required for actions which are authorized, funded, or carried out
by Federal agencies, 16 U.S.C. 1536(a)(2), and for which there is
discretionary Federal involvement or control, 50 C.F.R. § 402.03.
Thus, Federal actions which do not authorize, fund, or carry out
actions are not covered by the section 7. There are two factors
that need to be examined to answer your questions. One factor is
what authorization, if any, is given by Bin when it issues a
mineral patent and, second, what discretion does Bin have when
requested to issue a mineral patent.
RECEIVED
r'-.H ¦>
FSi&mfiuFEBMAHcasir |
-------
In State of South Dakota v. Andrus, 462 F. Supp. 905
(D.S.D. 1978)t aff'd, 614 F.2d 1190 (8th Cir. X9B0J, cart, danle
449 U.S. 822 (1980), the courts vers ask&d .whether or not an
environmental iapact statement was required before BUI issued a
aineral patent. Praeisoiy the sasa factors ware discussed in both
the district and appellate court decisions. She district court at
909 noted:
Unlike the cases saher© a fsderal license, permit, or
lease is required before the private party can begin a
particular project in question, the locator of a aining
claia say begin his saining operation without a mineral
patent. 1/ As the United States Supreme Court, stated in
Union Oil Co. of California v. Baith, 249 U.S. 337
(remaining cites oaitted).
'[A] discovery of aineral by a qualified locator on
unappropriated public land initiates rights much sore
substantial as against the United States and all the
world. If he locates, aark&, and records his claia in
accordance with section 2324 and the pertinent local
lavs and regulations, he has, by the terns of
section 2322, an exclusive right of possession to the
extent of his claia as located, with the right to
extract the minerals, even to exhaustion, without paying
any royalty to the United States as owner, and without
ever applying for patent or seeking to obtain title to
the fee * ~ (Emphasis added.)
The appellate court at 1194 reaffirmed this position by stating:
But in the instant case, the granting of a mineral
patent does not enable the private party, Pittsburg, to
do anything. Unlike the case where a lease, permit or
license is required before the particular project can
begin, the issuance of a mineral patent is not a
precondition which enables a party to begin mining
operations. 30 U.S.C. § 26.
However, the vested right to the issuance of a patent does not
arise until there has been full compliance with the extensive
statutory procedures. Freese v. United States, 639 F.2d 754 (Ct«
CI. 1981). Until the claim is patented, the United States retains
1/ However, the mining laws provide Bin with regulatory authority
over prepatent mining activities to prevent unnecessary
degradation and to protect nonmmeral resources of the Federal
lands. 30 U.S.C. 22; 43 C.F.R. § 3809. The regulations at
section 3809.1-6(5) state that approval of operation plans ana
subject to the ESA. Thus, although a mineral patent is not needed
before exploration or mine operation may begin, approval may be
required under BLM regulations and such approvals could trigger
section 7. (Copy of BLM regulations attached.)
2
-------
superior rights in the property. Preese v. United States. 6 CI.
Ct. 1 (1984). A patent merely confirms in document foiTa right
that was already granted by operation of lav when the mining
claimant fulfilled all the required location and application
procedures. Therefore, a mineral patent is not a Fedoral
authorisation. Since issuance of a mineral patent is not an
authorization, it is not the type of Federal action covered by
section 7(b)(2) of the Endangered Species Act. 16 U.S.C.
1536(b)(2).
Additionally, the only discretion BUf has whan issuing a aineral
patent is to determine if the statutory procedural prerequisites
for patent issuance are met. This vas made clear by the district
court in the South Dakota case vhen it quoted from The Aaerlcan
Lav of Mining at section9.04:
It has been contended, unsuccessfully, that the granting
of a mineral patent is a matter which is "by lav
committed to agency discretion." This view fails to
recognize the fundamental distinction between the mining
laws and the mineral leasing laws. Under the mineral
leasing lavs the Secretary may, in his discretion,
refuse to issue any lease or prospecting permit at all
on a given tract. The locator of a mining claim, how-
ever, holds his claim by virtue of an Act of Congress.
Upon compliance with the requirements of the mining
laws, he is entitled to a patent, and the Secretary has
no discretion to deny an application for mineral patent
where all the requirements of the lav have been met.
Thus, in the mining lavs, Congress chose a method of
disposing of public lands whereby the recipient of the
grant had only to prove that he met the requirements of
lav in order to have the rights he obtained by location
confirmed by patent. The power confided by the Secre-
tary with respect to the issuance of mineral patents is
not that of granting or denying a privilege but of
determining whether an existing privilege conferred by
Congress has been lawfully exercised. The distinction
between the power of the Secretary to issue a mineral
patent and his power to issue a mineral lease or permit
is the distinction between a positive mandate to the
Secretary and permission to take certain action in his
discretion. Nevertheless the Secretary's not authorized
to issue a patent until he is satisfied that the
requirements of the law have been complied with * *
(Emphasis added.)
Thus, once the all statutory requirements are met, BLM, if
requested, must issue a mineral patent and issuance of a patent
can be compelled by court order. Southwest Resource Council v.
United States. 94 I.D. 56 (1987). Therefore, the issuance of a
mineral patent is a nondiscretionary duty and is exempted from the
section 7 consultation process. 50 C.F.R. § 402.03.
3
-------
However, as discussed above, prepatent activities are subject to
section 7 consultation and FWS should strive to deal with proble.
before patenting is initiated.
2. Your second question is* "Can the Service r®ccHEemd/r®quire
restrictive mmtmsmtE daring the patenting process on these lands
to protect threatened or ©ndangerffifi species?0
I do not know what is aaant by "restrictive oaseBants.® BX£S has
no authority to inpose teres and conditions in a mineral patent to
aitigat© adverse onviroiraect&l effects. See Deffeback v. Hawk®,
IIS U.S. 392 (1889) ? Utah Wildaerasgg &ssec. v. United States!
91 l.D. 165 (1984).
3. Your third question is, "X£ the mcr to one is yes, should
not the Service request that the Bureau consult on patenting
actions that nay affect threatened or endangered species?0
Ho answer is required since the answers to your first questions
are no.
4. Your fourth question is, "Likewise, can the Service request
that the Bureau consult and possible reclaim title (through land
exchanges) to lands they patented in the past?"
Since there is no agency action pending on the patents and since
mineral patents are not covered by section 7, there is no action
on which to consult. Therefore, although the Service nay request,
consultation, BLM would have no authority to conply with your
request. However, if future authorizations were to be needed fron
the BLM or fron the Forest Service in order to carry out the
mining activity on the patented lands, there would be an agency
actions on which to consult. And, the Service could, through the
biological opinion, recommend a land exchange in order to offset a
potential jeopardy situation or incorporate a land exchange in a
conservation recommendation. Land exchanges nay also be utilised
to minimize incidental take situations.
5. Your fifth question is, "In relation to the above questions,
is there a difference in patenting procedures between nineral
claims and nill site claims that nay allow them to protect nill
site claims proposed to be patented?'
The answer to this has not been deternined. The statute on
patents for nill sites, 30 U.S.C. 42, states that nill site patent
requests "may" be included in applications for nineral patents and
mill sites gnay° be patented as part of the patent for the mineral
lands. The tern "'nay' leaves open the possibility of discretion*
ary determinations by BLM on whether or not to patent the nill
site or to include conditions for "nitigation." He are not aware
of any cases on this issue. A court could interpret that BIJ4 has
no discretion as is the case with valid nineral patent applica-
tions or has great discrqtion.
4
-------
6. Your sixth questions are, "Does the Bureau have discretionary
authority over any part of the patenting process or subsequent
granting of access to the patented claim (i.e., rights-of-way)?
If so, can the Service request consultation on the whole action
via the rights-of-way (mitigation for the vhole action)?*
As discussed above, there is no discretion over the patenting
process under the mining lav once the requirements for obtaining a
patent have been Bet. Generally, rights-of-way for patented lands
located within public lands are granted because the patent
landowner has an implied -Basement of access to the patented land.
Additionally, if the patented land is surrounded by public lands,
Congress has stated that a right-of-way shall be granted.
16 U.S.C. S 3210(b). Under either scenario, BUf has the authority
to impose conditions in the right-of-way permit to protect
environmental resources.
Furthermore, the rights-of-way can be issued under the Federal
Land Policy and Management Act which provides:
Each right-of-way shall contain -
(a) Terms and conditions which will * * * (ii) minimize
damage to scenic and esthetic values and fish and
wildlife habitat and otherwise protect the environment
* * *. 16 U.S.C. 1765
Additionally, under section 7(a)(1) of the ESA, BUI is to utilise
its programs to conserve threatened and endangered wildlife.
Therefore, the BLM has the responsibility as well as the authority
to include measures to protect threatened or endangered species as
terms and conditions in right-of-way permits issued under these
authorities.
The second part of your sixth question involves the scope of the
action subject to consultation. Any impact of activities that are
or will occur on the patented lands must be considered in the
section 7 consultation on the right-of-way. Such impact would
either bt part of the 'effects of the action* or part of the
'cumulative effects,' 50 C.F.R. 402.02, and should be analyzed in
the opinion.
The Service could develop reasonable and prudent alternatives,
reasonable and prudent measures, or conservation recommendations
that would apply to the patented lands as well as the right-of-way
lands if such measures are needed in order to offset jeopardy, to
minimize incidental take, or to offset adverse impacts to the
grizzly bears. These should be included in any biological opinion
on the rights-of-way.
5
-------
However, elnceBLM nay not agree with the terms and conditions
advocated by FWS, it is important that FWS involve. BIK and
rights-of-way applicants in identifying alternatives and other
aeasures when preparing its biological opinions as provided for in
the section 7 regulations. See 50 C.7.R. 402.13(g)(5).
If you have any questions, please call Margot Zallen at 236-8444.
Attachaent
cc: Assistant Solicitor, Branch of Fish and Wildlife, Division of
Conservation and Wildlife
Margot Sallon
For the Regional Solicitor
Rocky Mountain Region
6
-------
United States Department of the Interior
FISH AND WILDLIFE SERVICE
IN BPU urUTO.
juaac lUinrnw
rt,
mxrrLocxnon
U4l
FWE/Section 7 Policy
KAIL STOP 60123
tonK 6 1890
Memorandum
To: Director, FWS, Washington, D.C. (AFWE/EHC/BFA)
FronKve^ftegional Olrector, Region 6
Subject: Section 7 Consultation for Wining Claim Lands Patented by the
Bureau of Land Management
Attached is a March 1, 1990, Regional Solicitor's opinion concerning Section 7
consultation for mining claim lands patented by the Bureau of Land Management
(BLM). A reauest (attached) for this opinion was made through the Fish and
Wildlife Enhancement Helena Field Office but would apply throughout the United
States.
According to the opinion, the issuance of a mineral patent would be exempt from
the Section 7 process. However, prepatent activities are subject to Section 7
consultation as would rights-of-way for patented lands located within public
lands or if the patented land is surrounded by public lands. In addition, if
future authorizations were needed from BLM or from the Forest Service to carry
out the mining activity on the patented lands, there would be agency actions on
which to consult. Also, the Fish and Wildlife Service could, through the
biological opinion, reconmend a land exchange to offset a potential jeopardy
situation or incorporate a land exchange 1n a conservation recommendation.. Land
exchanges al:>o may be utilized to minimize inciden al take situations.
If you have any questions, please contact Wayne Watt.an at (303) 236-8166 or
FTS 776-8166.
Attachments
JOHN L SPiriKi, JR.
cc: Regional Directors (FWE)
Regions 1, 2, 3, 4, 5. 7
w/attachments
-------
bmn e? taad MoMgsessal« toJartoc
f 23214 frM1* gmlhMBl^ ef tafsna^
(a) Xanapt af provided hereto, a& i»-
fnnm*t~i ad dan. g&as of
operation. cubmlttftd by tt» operator
«w«n be available tor ssaralBattat by
ts« pobUe at the office of ibe aother*
ted rt***" fin aooordaao® wttb tbe
pwrtotam of the Freedom of lalonafr-
ttco Act (F.O.LAJ.
(b) Information and data sabeattiad
tad spedflcaOy Identified by tha oper-
ator m mnutntng trade oeerets or eoo-
or privileged eommerdal or
tnformatirm and ao deter-
mined by ttae authorised offlwir will
act be available (or public fnrarn hia-
tal.
(e) The determination oonocralng
"tfin" Information which may be
withheld from public mrwwtnaMon wfll
be made to accordance with ttae rulae
kUCTRFutl
Sobpcrt J809 twfao ManegMwnf
Acmourr Seat. »1B (SO DAC Tlx MIS
CO CAC 1301 ) ot tbe RetM BtltaUi
*ad tbe Pcderai Ltod Policy tad Maoss*-
t Act e1197* (41 U.S.C. 1T01 atceqjL
jamo-a
chase pszxaat to tfea mining toot to a
tmnrmxtr tQI Qgt rrrxfrnVy ftriwAng
saeh c&trttim but wffl ascro shat
tbcea aetfetttas an capdmetfld la a
mamar fe££ win jwnat VBatanmxf
or xaa&OB (tesndattoa a&d provide p«o-
MHm »f nflim feuaal ¦ ^ qJ ^
knoc U n 7009. Hot. M, LfCO.
ttbcnrue noted.
Kcnc Tbe Inloraatlao coUecUoo reaulre-
®«u contained Id subpart bare bean &p-
voved by lb« OOWx of Uiuitaoit and
&Bdt«t under 44 OAC. 1SCT7 tod omtpwl
r^»nnrr Dumber 1004-0104. Tbia tolotmi
&so fe needed to permit the autbortoad offt-
to determine U i plan ol operatloo to
®«ded to protect tbe public Uods aad their
r*°wree» aad to determine II the PUn of op-
•*Uooa. U one to required, to adequau. Tbe
®*>lls*Uoc to rcspood to required to obtain a
*wefU.
«intUU.lUr.llNl]
Odhml
' JMlA-I PlITfMC
t tbe purpoae of this subpart U to w-
*bUsh procedures to prevent unneces-
*** or undue degradation of Federal
*oda which may result from oper-
"Jcns authorized by the lawa.
ObleetiTw.
^be obieetiret of this regulation are
'•JProrWe for mineral entry, explo-
vJoo. locauon. operations, and pur-
(b) Trsrift} for pedaaattan (tta-
torbodaRffisacd
(& OMffffla&fes. to ttt* sreatcMt
iwwftbt, «tW| 7)irr?rrtfite Btato
a^ades, groce&ires Icr yuatmttaB at
asaseonty or ""^p*
wttJi nspoet to eatawnl oparstte*.
latUU AolhMtty.
(a) Baction 91* of the nevtaod Btat-
otcs (M HAC. 23 «£ mo.) ymrrMm that
explcre&oo. tecafioa aad rnr-twrf of
ntaable alnenl dcpcatta. mtder the
mining latn, da Ttafcsr&l hade ^e
"under ncuiaUooi preKzfbed by tew,"
sad cactlon M78 of the Revlmd Stat-
utes. u wended (iS VJfLG. 1301). pro-
vides that thaw regulation shall be
issued by the Secretary.
(b) Section* MS, WS, «0U aad 603 of
the Federal aad Policy and Manage-
ment Act of 1978 (43 U5C. 1701 ti
«e«.> mrulre the Secretary to take any
action, by regulation or otherwise, to
prevent unaeeesswy or undue degra-
dation of the Federal lands, provide
lor enforcement of thoae regulatkma.
and direct the Secretary to manage
the California Desert ConaovaUon
Area under reasonable regulations
whlcb «riH protect the srmtc. edentlf-
te. and enrlmnmcTibU values against
undue lmpelnaent, and to assure
¦gainst pollution of atreama aad
waters.
(c) The Act of July 33. 1»U (30
UJS.C. 613), provides that rights under
mining rlatma located after July 33.
IMS. shall prior to issuaaoe of patent
therefor, be subject to the Tight of tbe
United States to manage and dispose
of the vegetative surface resources and
to manage other «rface rasounea.
Tbe Act also provides that "Any
wtlnlwy tyBPC&fleT IXDdCT
the mining laws of tbe United States
ahaQ not be used, prior to Issuance to
patent therefor, for any purposes
other than prT""****^. Tw*T'tT>r or
77 9
-------
4SS&G&.B OO-UasI
afafer tacVWmt thereto."
(fl) Section t of the WM and Break:
Rim Act (16 XJJBjC. 1380) provides
that ngtftttaa* tamed shall ¦mans
things. provide nfagrards
, poDaUao of the rtven Involved
enuy Impairment of the
' within the sum designated far
to» CC SO ft******
""¦r*""1 of the mtVrmil wOd end
soenic riven system.
•atuM mnimses
A* need In this subpart, the tens:
(a) "Authorised officer" means any
employee of **"> TIiihhii of Lud lliih
to whoen authority has been
delegated to perform the duties de-
scribed tn this subpart.
(b) "Casual Hoe" means actftrttta or*
iWMtiiy resulting in only negligible
of the Federal lands and
resources. For example. activities an
generally ogoriderti "casual me" It
they do not Involve the oae of mecha-
nlsed earth moving equipment or ex-
plosives or do not Involve the use of
mot/rtaed vehicles tn areas designated
as closed to off-road vehicles as de-
fined In Subpart 8340 of this title.
(c) "Federal lands" means lands sub-
ject to the rritntnr tan but
not limited to, the certain "public
lands" *»rtn»A tn lection 103 of the
VmUviI land FbUC7 Ifid
Act of 1,176. Federal lands does not in-
clude lands In the National Park
System. National Forest System, and
the National Wildlife Refuge System,
nor does It Include acquired lands.
Stoekrals'ug Homestead lands or lands
where onl7 the mineral interest Is re-
served to the United Btatec or lands
under Wilderness Review and adminis-
tered by the Bureau of Land Manage-
ment 'these lands are subject to the 43
CVR Fart 3802 regulations).
(d) "Mining claim" »«—«¦ any
wiHl«W» or
fitnn*) dte under **<» wtninj
laws and those patented mining claims
and winirit— located In the California
Desert Conservation Area which have
been patented subsequent to the en-
actment of the Federal Land Policy
and Management Act of October 31.
1976.
(•) "aamnt law _
I aw of July 20. 1886. i
Stat. 281X the ~
1670, as anwnrted (16 StaL»??
the Wtntny Lav of tSay u ,2.
¦mended CM BtaL 81); WB
supplementing tnd
laws, w*"jWTnr
Unflrtlng Stcne Act of um a —
as amended (37 Stat. 848); mU Wg
Saline FUoer Act of Januair il «S
(81 Stat. 746). 21
(f) "Operations" means sO i_
work, facflltles. and actMttas fa
nuctim with prospect&K.
traction. tad processing of atom! 21
poaflta tacatattte under tha Bdm».
and all other uses reasonably f
thereto, whether co a ^ z
oot, tndudtoc but not ttmlUd to the
nirtirr of
lines, pipelines, and other v
aosess for support laeQitles acnm y^,
eral lands subject to these regulatieu.
Ig) "Operator* means a r
ducting or proposing to i
ationa.
(h> "Person" means any dtiscn tt
the United Sutes or pencil who has
declared the intention to >t such
and toclniVs any Individual, partus*,
ship, corporation, association. or «t>jf
legal entity.
(1) "Project area" means a
tract of land upon which an Tmtit
is. or wffl be. oonrturtlng openttaa. B
mar Include one .jtntng claim or a
ipntip of l"lTlt"y "'«*"« nwfai Wf QVfr
erahlp on which operations are c? wQ
be conducted, as well as Fedml lands
on which an operator Is or
prospecting prior to lorsttng a
Ct&lSL
(J) "Reclamation"
such reasonable measures as wQ pr*-
vent unnecessary or undoa
Usn of the Federal lands. Whwt)«y iw-
gv»«py land disturbed by operettas
to an appropriate contour and. when
necessary, revegetating disturbed
areas so as to provide a diverse vegeta-
tive cover. Reclamation may not be re-
quired wbere the retention of a stable
hlgbwall or other mine workings b
needed to preserve evidence of miner-
alization.
(t> "Unnecessary or undue degrada-
tion" means surface disturbance greal-
780
-------
12S3.
ism
na f
Saws® ®f Lssrf ftteaagaas^J, cstorfar
or than what vculd sesmaSy pssoSt
ufcm ao activity to teief aessaf^ittBA
by & jaudost opsr&tsa- to acoal. eo®-
teBsry, aafl peofirisci cgnnvittgm of
«n«naT character and ta&tog ta© con-
nm &S Cf&KtS fitf C^m&DTO OO
e6her rssoorcsa aad Sacd ones, tected-
tos shass raaeswssB oo£ w aa^Ss
Xbs ara& of oses&iScra. Pallas© to taftg-
ats sad eamplete raaiaoaiMe solae»-
tea gaeawwree. tedudlag rwaajaattaa
of disSuifesd areas cff erra&sa of ft Btd-
may eo&s&bGte oaaooeeasiy as-
n«ihM> dessadattoiL SUte te
vtth applicable envtronmaatal proteo-
tka etatotes and Fecula&oas (hereun-
der vlD eensttetie ancsosmzy or
undue degradation. When spedQs
statutory authority PsquUas the at-
of a stated lews! of proton
Ban or reetaaadon. seeh sb in the
: .California Desert CoErervatlaa Aroa.
"WEd ud Sceaie Rfcraro, turoi deals-
staled as put of tbe Ma&sul 'WBdtsr-
System administered tor tbe
j Bureau of Land Maaascmeat and
such areas. that level of protoe-
« tlon (ball be met.
,!« TR TWO*. Not. 36. IMS; 4® SB S3SM.
' fitt IT. ISM. u anvmrtfwi at M PR ttli
L^tar. 2.1M>]
itSMVO-C Policy.
Consistent with section 3 of tbe
t*Uintng aod Mineral Poller Act of 1970
:i~Jtod section 102(a) AH spaiton sa srojact anas
vtas wm&aa. aeoee
osroea F®steaJ lands to tbe project
area, e&sse a cuznulitive surface dia-
turteasa of ft aersa or lees during any
cfrlfTatex visa shall notify tbe author-
lssd off2eer In the District offloe of the
Bureau of T¦*",t MapijamMit bavtnt
jortwMctton ovar the land to which the
dahnta) or project area Is located.
Prior to fflirotuctlng oper>
ationa under a aubeequent nottoe cov-
ering substantially the same crou&d.
the operator shall have completed rec-
lamation of operations vhlch were
onndurtod tmder any previous notice.
Notification of such activities, by tbe
operator, shaD be made at least 15 cal-
endar days before commenetnc oper-
ations under this subpart by a written
notice ex letter.
(b) Approval of a notice, by the aa-
thortoed oCfloar. is net required. Con-
sultation with the authorised officer
may be required under paragraph
(eX3) of this aretlan when tbe con-
struction of accost routes are Involved.
Notices properly filed tinder this sec-
tion COnStltUtC UhtiST
Part 8349 of this title (Off-Rood Vehi-
cles).
-------
{3909.1-4
reported pranptty to the anthortod
O) Whan apptfrabk. the bubs of
Hm ftntiif ClatzntB), «m< Hrtal
nmnbett) *hI|ht il to tin Btaioi
galmU) iwatart purmtirt to Babput
3833 of this title on which disturfeanea
win likely take place as a result of tho
d> a taatttns the tettit
ttas proposed tad their location to suf-
Octant detail to locate the activities an
the ground. and sMng 1he cpproxl-
nate date when opcrattmw win start.
The statement shall tnelude a descrip-
tion and location of access notes to to
constructed and the type of equipment
to be used tn their construction.
Access routes shall be plumed for
only the minimum width needed for
operations and shall follow natural
contours, where practicable, to mini-
mize cut and HQ. When the construc-
tion of access routes Involves slopes
which require cuts on the Inside edge
In of 3 feet, the operator may
be required to consult with the au-
thorized officer concerning the most
appropriate location of the ecoes
route prior to commencing operations;
(4) A statement that reclamation of
all areas disturbed wlD be mrnplrtwi
to the standard described In 13809.1-
3(d) of this title and that reasonable
measures wlD be taken to prevent un-
necessary or undue degradation of the
Federal lands during operations.
(d) The following standards govern
activities conducted under a notice:
(1) As* ass routes shall be plaraed
for onl> the minimum width needed
for operations and shall foQow natural
contours, where practicable to mlzrf-
mixe cut a> d fUL
(3) All »«niwy dtimpf.. deleterious
materials or substances, and other
waste produced by the operations
shall be disposed of so as to prevent
unnecessary or undue degradation and
In accordance with applicable Federal
and 8tate Laws.
(3) At the earliest feasible time, the
operator shall reclaim the
turtoed. except to the extent
to preserve evidence of mlnrraltrntlon.
by >,H"r reasonable measures to pre-
vent or control on-site and off-site
damage of the Federal lands
4S ess Ch. 1 (10.148
(4) Redcaatton w—
shall not be limited toe
tl) Bavins cf tooaon iw -
tton after reshaping of dtatarb^S?
have been """lplntitf:
OD Mtmamea to oontsol
landslides, and water najoffc
US) Measures to Isolate,
control materials;
(ID Reshaping the ana
application of the topaaO. andnnZ
tatton of disturbed areas. wfcsnTE
acaahly practicable; and ^
(t) Rehabilitation of ftaherl« n.
vQdllfe habitat.
<#> When reclamation of the dh
tinted area has been eomalet*
except to the extent necessary to an
core evidence of mtneraUzaUao.
authorised officer shall be notified m
that an Inspection of the area an t>
made. *
(e) Operations conducted punau.
to this subpart are subject to BHoltar
tag by the authorised officer to tmon
that operators are """'"¦'Im opts
atlons tn a manner which wlD not
cause unnecessary or undue degrada
Uon.
Cf) Piflure ol the operator to pre
~cnt or uoB(oeBU7 dcsv&te
tlon or to complete reclamation to Um
standards described In this subpar
may cause the operator to be sobled
to a notice of noncompliance as d»
scribed tn 13809.1-2 of this title.
(4& ra "raso». j\ imk « ra om
Dk. 11. 1S00. as QHiffldsd at «t nt SSU
Mar. 2.1N3]
63SMJ-4 Plaa ml WWa m-
talral
An approved plan of operations is re-
quired prior to
(a) Operations which eiuetd the dkt
turbanoe level (5 aon) daacrfbed la
13809.1-3 of this title.
(b) Any operation, except casual use.
In the following designated areas:
(1) Lands tn the Calif arnia Desert
Conservation Area as 'eon-
trolled' or limited' use areas by the
California Desert Conservation Ana
plan;
(2) Areas designated for potential
addition to. or an actual component of
the national wild and ¦*»«««• riven
system.
782
-------
rosfcHJ.
on, V
es and
ae dls-
ipleted.
to pre-
cm. ths
ifled ao
. can be
ursuont
ionium
i ensurs
g oper-
41] not
legnda-
•r KW-
PR ui«-
Whto w
onstorv-
l the
•rtbtd tn
Imwaflmd MoaagMMot, brtwfer
(3) Designated Areas of Critical ]&>-
VtrOUBCBtAl
(4) Anas put ef tbs
Hitkmal WUtsaea ftwgvattap
System and administered toy tbs
BUI Will OfLlfid
(0) Anas rtrntgnffltort as "eteMd** to
f sS-md vehicle ne as dufiuKwt in gufe-
* part 8340 of this tttte.
(e) Plans pioiwrij filed and ap-
uoved under this section iwmMtma
tl
aathcrtaatton tmdsr Put 8M0 of this
title (Off-Road Vehlelaal.
[a ra mcs. Ho*, aa. ino; «s tr sssm.
dk. ti. ino. « BBMstted it«n nil.
Msr.llN»
IMU4 TQIbi sad
(a) A plan of operations must bt»
t&ed tn the District Office of the
Bareau of Land Management having
jarlsdlctlon over the Federal lands tn
which the el&lxnU) « prefect area Is
located.
(b) No special form is required for
apian.
The plan shall Include
(1) The d&dc rwtifrwy i^rw of
the operator (and if sot the
operator). Any chance of operator or
chuie tn the wi«ntwy address ¦*'«n be
*omptly reported to the authorised
officer
(2) A map. preferably a topographic
fe*p. or sketch showing ^irtfny and/
proposed routes of icrm. aircraft
hnrttng areas, or other means of
and tire of each area where
•irlkce disturbance will occur
<» When applicable, the name of
cl&lSU) and fwlntny Halm
QbtUI number* seJsocd to the qiIqIqi
2*. (*) recorded punu&nt to Subpart
pa of thu title.
h (4) Information sufficient to de-
or identify the type of oper-
proposed. how they will be con-
the period durtnx which
Proposed activity will take place:
Measures to be taken to prevent
or undue degradation and
to reclaim disturbed areas
X from the proposed oper-
Including the standards listed
S.l-Kd) of this title. Where an
advises the authorized officer
he/ahe does not have the neces-
technlcal resources to develop
S 88SM-4
tench ms&saras tha asthestad «mway
aatsL the operator tn developing
such If an operator submits
reeiama&en saeasana, tat
.iffVwi imun that tiw» gpgntcrt
ntaa S® to «wm on
-------
{3SC9.W
—t14-* «tth eoctioo 106 of tto Ka-
ttaoal Historic Preeenratton Act or wo-
ttao T of the Endangered Species Act
(to) The authorised officer shall con-
sult with the appropriate official of
the bureau cr agency baring surface
meh respcnilMItty to not eaertiaed by
tbt Bureau of linrt Management.
Prior to pUa approval the authorised
ahtetw tH* aaitmn—uM nf
meh appropriate official to the terras
and ccodlttnna that mar be necdod to
r undue degia-
(e) The authorised ofSocr shall un-
dertake an appropriate level of cultur-
al resource Inventory of the am to be
distorted. The Inventory aball be com-
pleted within the time allowed by
these regulations for approval of the
plan (SO days). The operator ti not re-
quired to do the Inventory bat may
hire an archaeologist approved by the
Bureau of Land Management In order
to complete the Inventory more expe-
ditiously. The responsibility tor and
cost of salvage of cultural resources
discovered during the Inventory shall
be the Federal Government's. The re-
sponsibility of avoiding advene Im-
pact* on those cultural resources dis-
covered during the Inventory shall be
the operator's.
(
8tate Dtreetor determines that the of
erations are ranstng unnecessary o
undue degradation to the land. Tfe
State Director shall advise the open
tor of ~*"»» reasonable »>¦¦¦¦¦¦»
needed to avoid such degradation an*
the operator shall Immediately tak>
all necessary steps to Implement thow
measures within a reasonable perioc
established by the State Director.
784
-------
atton)
he oper-
1 or In®
or may
¦latmodl-
mtlal is
jr undue
ur b w'
bwt » —
-d modify
min * l4t"
State I>
W*" '*
modin*^
nibia" '
rteed oWV
n'" «»
p,,nU?2
unless"*
nat^e°£
*
land- Tj*
the op®**
.dftUOD
^ IS
me°l ^3
able P**1*
recto*-
08M9J-S Bstativejmtttaa.
(a) Penan eoedastte? opemtteas on
the afleett*# date of Una mgetotioee,
who voald fe» required to rrrthwiH a
ooUse under 8 3880J-8 or a pisn af eo-
cntloas aster ft 889&1-4 a* ttab tttte
may tti^'ii'i* sptnttas bat abaSU
m*hlw
(1> SO day* srtwaft a &e&oa vtth to-
miYwt M«nnHk
17.1M0)
ISOJ.W Beadjivc milnwto.
I (a) No bond shall be required for op-
Ions that constitute casual use
1*406.1-3) or that are conducted
' a notice (| 3809.1-9 cf this title),
to Any operator who conducts oper-
i under an approved pian of oper-
i as described in I JSO0.1-5 of this
may. at the discretion of the au-
l officer, be required to fumtah
In an amount specified by the
officer. The authorised of-
may determine not to require a
in circumstances where oper-
would cause only di»-
to the land. In determining
the aaotmt of the bond, the author-
twfri oZfiesr shall **"> udBu^
oost of imouUi stahQta&on sod
wrtamnttan erf aw dhturlnrt. In Men
of the -»¦-*—«—> cf a separate bond,
tfce enthet&ed oSBms nay accept «vt-
dsocs of so ex2st£a# bend pasmant to
State lav or rssulsttooB for the same
ajp«. ewrarad by the plan of openttaa,
open a determination that the covar
ago voold be eqtrtvatant to that pro*
vidad Jn Shis section.
te> In Um of a bond, the operator
may deposit sad maintain to a Federal
depository aeeoout at tbe Dotted
Btatd Treasury, at directed by the an-
thosisad offloor, cash In an amnrmt
equal to the required doBar amount of
the beod er peyonable Becarttiei of
tfca Cnttod Btatee havtng a markot
vatea at tha time of depeott of not tea
than tte required dollar amoont of
the bond.
In place of the indMdoal beod
en aaeh separate opcratioo. a blanket
bond oorertag statewide or nationwide
opeiatlona may be famished at the
option of the operator, if the terms
and conditions, as determined by the
aothorteed officer, are to
cranpTy with these regulations.
-------
{MOfJ-1
(g) When a ntntas dalm Ib patented.
iinHuwt—* nWW «hnTl mWix Umi
operator from that portion of tho per-
taaian band which applies to oper-
ations within the boundaries of tho
patented *p» authorised ">w""
•hall release the operator Iran the re-
mainder of the bend, to-
etodtoff the portion eovcrtar approved
of acoes outside the boand-
pf u«i wtwhiy claim, whtn Uw
operator has oomplated acceptable rao-
lABftfttlon* B0WW1 artinwy mm 10
pfttntftd wi^|*ny c!iIbi» tf km Pc6»
seal lands shaH ocattnus to be retulat»
ed under the approved plan. Tbe pro-
visions of this subsection da not apply
to r*'*"** taUCd OO wtntwy rt»Wiw
within the bomxtmrtea of the CaHfcar-
Bla Deeert Cuuwi fatten An* (see
138094 of this tttleX
[48 Fit TOM. Xov. S3. IMC; 48 FR 83M4.
Dk. 17,1M0]
1 ISM J hratln tf
ui
(a) When as operator IQca a plan of
operations or a significant modifica-
tion which fnootnpaiBca land not pre-
viously uweied by a x approved plan,
tbe authorized officer shaH make an
environmental assessment or a supple-
ment thereto to Identify the impacts
of the proposed operations on the
lands and to determine whether an en-
vironmental ~'wp»'** statement Is re-
quired.
(b) In conjunction with tbe operator,
the authorised officer shall use the en-
vironment*] assessment to determine
tbe adequacy of ml tics, tine measures
and reclamation procedures Included
in the plan to insure the prevention of
unnecessary or undue degradation of
the land. If an operator advises the au-
thorized officer that he/she is unable
to prepare mitigating measures, the
authorized officer, in conjunction with
the operator, shall use the environ-
mental assessment as a bads for assist-
ing tbe operator In developing such
« OS Cfc. C (1644,
** * n ,
period of time, not to -
ttaal 60 days provldedforftL
a plan tn ISCOOJ-s of t*L^
yUred to consider pobUc am.
the environmental r
kUm.
(c) If, as a result of the environmen-
tal assessment, the authorised officer
determines that there is "substantial
public interest" in the plan, the au-
thorised officer shall notify the opera-
148 IS TOM*. Km. a, UK. am ,
Dm. XT. 10M. as smnnilZiTili'
Mar. 3, IMS] w
I3MU-S OUnr
MMsblpn
AH operattona. Includta* ca
and operations tinder atthv
(1*809.1-3) or a plan of«
(83809.1-4 of this title), ahaH
ducted to prevent "Tree
undue degradation of the
lands and shall comply with i
sent Federal and State laws, t
bat not limited to tbe foQovte,
(a) Air gtwHfy. AH operate
comply with applicable Fede
State air quality standards li
the Clean Air Act (42 VJBJC.
sec.).
"->««»*¦»
may be affected by operation*.
(e) Cultural and paleontotofi
MOttrsa. (l) Operators shall net
ingly disturb, alter, injure, or c
any ^owMriwoiy important pal
logical remains or any historical
chaeologleal site, structure, bulk
object on Federal lands.
786
-------
he addt-
novalof
te. tol»-
cents cb
*r am.
7R am
for cbr«d or destroyed on Federal tandi by
hta/her operations. and shall Inn
^ goeh dtaoovezy Intact tmttl told to pro-
by the aethortnd offtoer. The an-
f'ffi'"* «h»n aralo&ts the
brought to hb/hsr attnntto.
^fake action to protect or remove the
w. and allow operation to pro-
I wtthto 1© worttow days after aott*
tO tt(* aWWwir g|
'aoch discovery.
(3) The Federal Government dull
have the raspooslbQtty end bear the
east of investigations lad salvage of
cultural and paleontology values dt»>
wwrtd after a plan of operettas haa
been approved, or vhere a (dan la not
Involved.
;lf) Protection of nervey mamvamtia.
the extent practicable, all opera-
ahall protect all muve/ mono-
famta. wltseoB cocaen. leitniw
[monuments, bearing trees asd Use
i against unnecessary or undue fe-
lon. obliteration or damage. If.
I the course of operations, any monu-
coraers. or accessories are de-
red. obliterated or damaged by
i operations, the operator ahall tm-
ixport the matter to the au-
offlcer. The authorised offl-
(hall prescribe, in writing. the re-
aenta for the restoration or reea-
-^UbUihment of monuments. comers,
tearingin|* ||n» trees.
tu TR 7190S. Not. 36. lBSC. «S rR C2934.
. »t it. i9to. u amende* at U 7R 8SU.
*.J.1M3)
!®WJ General pisrWaM.
Applicability ef 8lii* taw.
£t*> No Chin* in this subpart ahall be
j«J to effect a preemption of
lavs and regulations relating to
1 eondur. of operations or reclama-
on Federal lands under the
: laws.
s) After the publication date of
! regulations the Director. Bureau
•^nrl Mawapww^ aSall OOQftUCt &
of state laws and regulations hi
• or due to come into effect, relat-
unnecessary or undue degnd*>
" of Unds disturbed by exploration
93199^-a
for. or mining of. minerals ioa&ahte
uadsx the mining lavs.
uf
this title, a notice of noncompliance
a -all be served by delivery In person to
tt'j operator or his/ho- authorised
agent, or by certified mall addressed to
his/her address of record.
(2) Operators operations
under an approved plan of operation
vho falls to follow the approved plan
of operations may be subject to a
notice of noncompliance. A notice of
noncompliance shall be served in the
787
-------
§3309.3-3
hubs tntnrwir a* Ga&aQooC to S J80B>¦
KbXl) of thte section.
le> AH optaten wb» cmrtrat oper>
¦atinrw txnder * notice imirsusnt to
k ISOSJ4 and a plan purwuat to
I*809 J-4 of this title ea Federal lands
witboat taking tbe actions specified to
« notioe of nmnanrajHiMwe within tbe
time specified therein may be enjoined
by •& appropriate court order from
ctmUPiilng soeb operations and be
liable for damages tor soeb unlawful
nnfmgdtnnt,!
The opentor «ha& oota^jy
applicable Federal and State:
and regulations. and chaa tafc
asaabte tnawm to ma i
press fine tax tbe ana of ep®a
M> A notice ot nsnooapBun tiufl
specify fan what respects tbe operator
ia fatting or baa bOtd to mmjity with
tbe requirements of applicable regula-
«lrf «h«W pjumtfy th* itftiww
whieh are b violation of tbe mab>
ttom ind tte wtildi ih&Q bo
tektfi to tmcci t>%*
and tbe tfane. not to exceed so dan.
within which toneOive actum aball be
started.
(e) Failure of an operator to take
necessary actions on a notice of non-
compliance. may constitute JusUflea-
tion for requiring tbe sutanissloo of a
plan ot operations under 13809.1-S of
this title, and mandatory bonding for
subsequent operations which would
otherwise be conducted pursuant to a
notice under I 3409.1-3 of this title.
(49 rst tatw. ttor. 98. WW, U TO B3»4.
Dec. 17.1M0)
IRtm BaMHnat^
During sQ OTwrattana. tba «
AiS milntiitn bis straetum
nest. and otber ladttUos ta & i
(Btkily maimer. Hansdotaa i
conditions resumng from &&
rv.«Ti be by stem, 1st
otherwise identified to start th
In accordance with appllrrth :
and State lawi and tegnlattasa.
inttM
(a) An operator b entitled to access
to his operations oonslitea: with prort-
dons of tbe mining lava.
(b) Where a notice or a pl'-i of oper-
atlons is required. It shall specify the
location of access routes for operation*
and otber conditions necessa -j to pre-
vent unnecessary or undue degrada-
tion. The authorized officer may re-
quire tbe operator to use
roads to mtnlmtxr the number of
access routes, and. if practicable, to
construct access roads within a desig-
nated transportation or utility corri-
dor. When commercial >»»nitwy ts in-
volved and tbe use of an agisting road
is required, the authorized officer may
require the operator to make appropri-
ate arrangements for use and mainte-
nance.
I3MM-C
Tbe authorised officer may i
caOy bspeet openttasa to del
if tbe operator is complying wiu
regulations. The opentor shall
the authorized officer access f
purpose.
• J *i ii ipimiiii
AS operators shall u
structures and otber
operations in a safe and elean
tlon during any non-operating p
AH operators may be required,
an extended pertod of noo-ope
for other than srasnnil operatic
remove ill structures, eqnlpmei
other facilities and reclaim tbe i
operations, unless he/she receivt
mission, in writing, from tbe ai
toed officer to do otherwise.
StmA AfvcaAa
(a) Any operator adversely all
by a decision cf tbe authorised c
made pursuant to tbe provisio
this subpart shall have a rig3
appeal to tbe State Director,
thereafter to tbe Boud of Laxm
peals, Office of Bearings and Apt
pursuant to Part 4 of this title, i
State Director's rtwtirtfw ia adver
the appellant.
(b) No appeal shall be esosk
unless it is filed, tn writing, in
offlee of the authorised officer
made the deesion tram whiefc
appeal is being taken, within 30
after the date of receipt of tbe <
sion. A decision of the authorized
788
-------
lUHim)
' with all
fire tan
uiSi»
. and «up-
«Hiwt '
Mk satttj.
• operator
¦e*. equip*
tnleiad
I sites or
operation
fenced, or
the public
ile Feder*!
•na.
ay period
detemla*
with tbess
n«n permit
ss for thb
r*lioe-
itn the site.
les Of tb«
unn con£
inf periods,
uired. aft*
)D-oper»Uoo
•eratioos. ®
ipment aro
i me siu «•
receive* D**"
the sulhsr
*ly »"£*!
jrtsed ofO*J
,revision* *
a rirMJ
AT
of LH"»^
and
is ad*"^,
Ttin*.
oMU^ir5 ,
ithtn 5f S
ahort**4 .
tiwiM of Land MnwftBMil, brtwiw
eer tram which an appeal Is taken to
i the State Director ahaH be effective
Uk prndnrwiy of an appeal. A
lor a stay may the
The appeal to the State Director
rontalir
i The name *********? of
le appellant.
(2) When arpllcaffle. the cams of
wtnlny CtoticCS) Uj ipcrtiil
fmnnberta) "tir"'1 to the mining
elalms recorded pursuant to 8ubpart
3833 of this title which are subject to
the appeal.
(3) A statement of the reason* for
the appeal and any arguments the ap-
pellant wishes to present which trould
justify reversal or modification of the
derision
(d) The State Director shall prcmpt-
render a dwiaion an the appeaL
decision shall be In writing and
set forth the reasons for the de-
The decision shall be sent to
appellant by certified mall, return
¦lpt requested.
i The decision of the State Dixee-
when adverse to the appellant,
be appealed to the Board of Land
? peals. Office of Hearings aod Ap-
pursuant to Part 4 of this title.
Any party, other than the opera-
agrrieved by a decision of the au-
ortzef officer shall utilize the ap-
procedures In Part 4 of this title,
filing of such an appeal shall not
the authorized of!leer's decision
kP®«n being effective.
.(*) Neither the decision of the au-
offioer nor the State Director
be construed as final ageney
for the purpose of judicial
of that decision.
.1** 'W0>. Nov. M. 1M0. u latadcd at
[rR sate. Mar. 2. 1M3)
'¦5 Public availability of informa-
sttoo.
Information and data submitted
^specifically identified by the oper-
"* u containing trade secrets or oon-
yr privileged commercial or
information shall not be
Me for public examination.
e. toJormation and data submitted
**®e operator shall be available for
Ion by the public at the
of the authorised officer in ac-
5*0*2310
xrtth the profMan* of the
PnnjoB of Informatics Act*
(b) The dotcnainatte
sjsedflc infenaattea which may ba
withheld frc*n pnbtte examination
shall be ™*> in with **"*
mlasia <23 CPS Part 2.
038996 flfrwHul cnnUibwiii iwlmkif Is
ctafaee rafrmtari wtthta lbs
eff tfcs CaBfsrata Desert
In aooordaaoe with section 601(0 of
the Federal Land Policy and Manage-
ment Act of October XI. 1STC. all pat-
«nhi luMMt oq whitwy ri«tm«
within the boundaries of the Califor-
nia Desert Conservation Ana after
the enactment of the Federal I^nd
Foliar and Manrngpment Act shall be
subject to the regulations In this part.
HwHwHwf tKo wrywHni—of a p1»w
operations and of bonding with re-
spect to the land covered by the
patent.
FAftT 3810—iAHOS AMD MINERALS
SUSJECT TO LOCATION
»n-
381L1 Lands: OeneraL
381L3 T«nrtr Specific.
3S11-3-1 8Uta where
locations may b*
3811.3-3 Ijinrts is i parka and na-
UOOAl BODUONOtAt
Mil 1-1 UsdilLladlaDRNrnUoBi
UUJ-4 lands in national foresta.
3811.3-3 O and C and Coos Bay Wasoa
Road lands.
3811.3-8 lanrti In powenite withdrawals
3811.3-7 Fissionable source material on
coal lands.
3811.3-8 Lands under Alaska Public Sato
Act.
3811.3-0 lands under Oolor of Title Act.
3812.1 Minerals subject to location.
fiApart Mil IHipml «f t»nn »< Mimmtmb
Un4mr ttw Act mt July 17. 1*14
3813.0-3 Authorttr.
789
-------
FWE
HAIL STOP 60120
JAN 17 1990
Memorandum
To: Regional Solicitor, USDI, Denver. Colorado
From: Regional Director, Region 6
Subject: Request for Legal Opinion Concerning Section 7 Consultations for
Mining Claim Lands Patented by the Bureau of Land Management
The Fish and Wildlife Enhancement Office, Helena. Montana. Is currently Involved
in Section 7 informal consultation with the Forest Service concerning
development of two of the world's largest silver producing mines ($3 billion In
reserves) located 1n the Cabinet Mountains of northwest Montana. The Forest
Service is estimating that they will request formal consultation with us 1n
early spring of 1990.
The grizzly bear population.1n the Cab1net-Yaak Ecosystem 1s in a tenuous
position and has been the subject of numerous mining and timber related
Section 7 consultations and the focal point of augmentation discussions. The
Forest Service has preliminarily concluded that the mines will modify and
disturb grizzly bear habitat and Increase the risk of bear mortality through
increased human-bear interactions. As a means of offsetting these adverse
irrpacts. the Forest Service is considering permit requirements which would
protect (through fee title transfer or easement) recently patented lands from
future development.
The lands subject to possible protective measures lie adjacent to the Cabinet
Mountains Wilderness Area within important grizzly bear habitat (Management
Situation 1).
Approximately 123 surface acres which overlie the ore body claims were patented
by ASARCO in April 1989. No mining development of these lands is anticipated
because the ore body and mine entrances are located several thousand vertical
feet down the mountain. The patented acres are now private lands subject to
developments or other private actions (recreational uses are most likely) which
may adversely affect grizzly bears.
-------
2
Relatedly. both mining companies, ASARCO and Noranda, hold other unproven
mineral claims (there are over 7,000 claims 1n the Cabinet Mountains) 1n the
same area which potentially could be patented. Both companies also hold
numerous mill site claims within valuable grizzly bear habitat which nay be
patented after the conpanles occupy the lands. Potentially patented mill site
claims coulii be developed as conrnerrfal recreational facilities following
closure of the mines (15 year life). This may represent the greatest threat to
the grizzly bear because Section 7 consultation is not required for private
actions.
As we understand the process, the Forest Service "proves" mineral and mill site
claims and gives a report to the Bureau of Land Management (Bureau) which may
patent the mineral and surface rights to the mining company. The Helena office
contacted the Montana State Office of the Bureau concerning these matters (Janet
Bejot. Chief of Solid Minerals Adjudication Section. Oivision of Mineral
Resources). After consulting with her Washington Office, Mrs. Bejot stated that
the Endangered Species Act does not apply to their patenting process and that
the F1sh and Wildlife Service (Service) could not reserve easements on patented
lands for protection of grizzly bears. This conclusion was apparently based on
the Bureau's assumption that mineral and surface patenting are exenpt from the
Endangered Species Act (Act) as nondlscretionary actions.
Several questions arise, aside from the propriety of the Service accepting or
proposing as "reasonable and prudent alternatives," protection of patented land
owned by a mining company as mitigation for an action related to the patenting
of those lands:
1. Does the Act and Section 7 consultation apply to the Bureau
(nondiscretionary actions) which patent public lands to private
ownership? Are they Indeed nondiscretionary? (Reference: Whoopino
Crane Trust v. Federal Energy Regulatory Conrrnssion)
2. Can the Service recommend/require restrictive easements during the
pi'.enting process on these lanrs to protect threatened or endangered
species?
3. If ~.he answer to one is yes, should not the Service request that the
Bureau consult on patenting actions that may affect threatened or
endangered species?
4. Likewise, can the Service request that the Bureau consult and possibly
reclaim title (through land exchanges) to lands they patented in the
past?
5. In relation to the above questions, is there a difference in patenting
procedures between mineral claims and mill site claims that may allow
them to protect mill site claims proposed to be patented?
-------
3
6. Docs the Bureau have discretionary authority over any part of the
patenting process or subsequent granting of access to the patented
claim (i.e.. rights-of-way)7 If so, can the Service request
consultation on the whole action via the rights-of-way (mitigation for
the whole action)?
Mineral claims nay be patented by the Bureau at any time. The legal opinion to
the questions asked herein will, to a large degree, determine the Service's *no
jeopardy/jeopardy" call and the formulation of reasonable and pruder.t
alternatives, if any. when formal consultation 1s requested. We request your
immediate attention to this issue.
p.-1 r~.-» h::—
' * T "
-------
so--
United States Departs
j i — _
I* REPLY ««* TO
scs
PWS.SE.0680
92-6-2230
LG-13
OFFICE OF THE
SOUTHEAST ttQIC w
Richard B. Ruaacll Federal Building
75 Spring St net. S.W.
Atlanta. Ckorg* 30303
'
%S3
July 9, 1992
MEMORANDUM
TO: John R. Eaddie, Acting Regional Director,
FWS (Atlanta)
FROM: Roger Sumner Babb, Regional Solicitor
Southeast Region (Atlanta)
SUBJECT: The Legal Sufficiency of the Biological Opinion for
Inner-Perimeter Road, Lowndes County, Georgia
In a memorandum dated June 17, 1992, you requested legal review of
the Biological Opinion ("Opinion") prepared by the Brunswick Field
Office for an after-the-fact wetlands dredge and fill permit
application. Lowndes County, Georgia began dredge and fill
operations without the requisite § 404 permit. The Corps of
Engineers ordered the county to cease and desist. The county
requested after-the-fact authorization to leave the fill that was
already placed in the wetlands and to finish the road. The Corps
of Engineers requested consultation with the Fish and wildlife
Service regarding this after-the-fact permit application.
The memorandum contains two requests. The first request is for
this office to provide comments on the legality of statementr aade
in the Opinion, particularly those statements concerning incidental
take. The second request is for this office to advise the Service
as to the best means, legally, of accepting the applicant's offer
to acquire 122 acres of habitat, despite the position in the
Opinion that 190 acres of habitat are required to conply with the
Opinion. The Service has indicated that it does not wish to
reinitiate consultation in order to resolve the issue. The two
requests will be addressed separately below.
V
-------
2
The Legal Adequacy of the Biologies! Opinion
The Opinion Incorrectly Interprets the Incidental Take
Statement Previsions of Section* 7(b)(4) and 7(o)
Prior to the 1982 Amendnents to the Endangered Species Act, a
Federal agency or permit applicant could insure that a project
complied with the "no jeopardy" provisions of section 7(a)(2) and
yet remain liable £or any violation of section 9 resulting from
takings incidentel to the approved action. The 1982 Amendments
corrected this situation by creating the "incidental take
statement." Pub. L. No. 97-304, 96 Stat. 1411.
The incidental take provision found at section 7(o)(2) provides
that "any taking that is in compliance vrith the terms and
conditions specified in a written statement provided under
subsection (b)(4)(iv) of this section shall not be considered to
be a prohibited taking of the species concerned." 16 U.S.C.
§ 1536(o)(2) (1968). Section 7(b)(4) provides:
(4) If after consultation under subsection (a)(2) of this
section, the Secretary concludes that-
(A) the agency action will not violate such
subsection, or offers reasonable end prudent alternatives
which the Secretary believes would not violate such
subsection;
(B) the taking of an endangered species or a
threatened species incidental to the agency action will
not violate such subsection; and
(C) if an endangered species or threatened species
of a marine mammal is involved, the taking is authorized
pursuant to section 1371(a)(5) of this title;
the Secretary shall provide the Federal agency and the
applicant concerned, if any, with a written statement
that-
(i) specifies the impact of such incidental taking
on the species,
(11) specifies those reasonable and prudent measures
that the Secretary considers necessary or appropriate to
minimize such impact,
(ill) in the case of marine mammals, specifies those
measures that are necessary to comply with section
1371(a)(5) of this title with regard to such taking, and
-------
3
(iv) sets forth the terms and conditions (including,
but not liaitad to, reporting requirements)- that must be
conplied with by the Federal agency or applicant (if
any), or both, to implement the me as ores specified under
clauses (ii) and (ill).
16 U.S.C. § 1536(b)(4) (1988) (eaphasia added).
The Act thus provides that "no jeopardy" opinions must provide an
incidental take statement to the extent that incidental takings
will not create a "jeopardy" situation. The Opinion declined to
provide an incidental take stateaent tor uncompleted portions of
the road project, stating "(bleeavse excessive take has already
occurred in violation of Section 7(d) and possibly Section 9 of the
Endangered Species Act, the Service will not authorize further
incidental take for this project." Opinion p.10. To properly
decline to authorize "further incidental take" the Opinion would
need to make a finding that anv incidental take would be likely to
jeopardize the continued survival of the species under
consideration. The Opinion does not make such a finding and the
refusal to insulate the remaining portion of this project from
potential section 9 liability is therefore not in conformance with
section 7(b) or 50 C.F.R. § 402.14(1).
The decision to deny incidental take authorization is especially
troublesome in this instance because the reason set forth is that
"excessive take has already occurred in violation of section 7(d)
and possibly section 9." Opinion p. 10. The Opinion does not
provide sufficient discussion of the biological evidence to support
a finding that excessive take has occurred. in fact, this
statement is preceded in the Opinior by a statement that "we
believe direct and/or indirect mortality of wood storks, red-
cockaded woodpeckers and Eastern indigo snakes mav have occurred
as a result of this project. The precise level of take is not
known at the present time." Opinion p.9 (emphasis added). The
Opinion indicates that the habitat impacted by the project is
suitable for a number of protected species. The Opinion then
concludes that the habitat is actually utilized: by Eastern indigo
snakes based on a report of a road-kill in the "mid-seventies'', the
presenc*. of an active gopher tortoise burrow in the vicinity of the
project and a reference to sightings of the snake on both sides
of the project; by red-cockaded woodpeckers based on a sighting
within three miles of the project in 19BB; and by wood storks based
on sightings of storks feeding in the area and because the project
is within the foraging range of a known wood stork rookery. Even
if the impacted habitat were conclusivtly occupied or utilized by
If the action agency and the Service do not expect the
project to cause any incidental take, then the Service is not
required to issue an incidental take statement. Rational Wildlife
Federation v. National Park Service, 669 F. Supp. 384, 389 (D. Wyo.
1987).
-------
4
the protected spades, the issue remains whether the adverse
oodlficatlon of this habitat actually caused a taking. To
establish a taking based on habitat modification, there need be a
showing that the habitat modification actually killed or injured
a protected species by significantly impairing essential behavioral
patterns, including breeding, feeding or sheltering. 50 C.F.R.
§ 17.3 (1991); See also Pallia v. Hawaii Pwp't of Land and Natural
Resources, 649 F. Supp. 1070 (D. Haw. 1986) 852 F.2d 1106
(9th cir. 1988); Sierra Club v. I,vno 694 F. Supp. 1260 (E.D. Tex.
1988) aff'd In part, vacated In part aub nom. Sierra Club v.
Yeutter 926 F.2d 429 (5th Cir. 1991). The Opinion does not address
this standard and the conclusion that "excessive take has already
occurred" is therefore without support. Opinion p.10.
Despite the fact that the Opinion declines to authorize incidental
takings for the remaining portions of the project, the Opinion
proceeds to issue "reasonable and prudent measures" and "terms and
conditions" in order to "immediately compensate for the
unauthorized take that has occurred." Opinion p. 10. Tha
functional purpose of "reasonable and prudent measure" and "terms
and conditions" is to provide the parameters within which a Federal
agency or applicant must stay to receive the protection of an
incidental take statement. See 16 O.S.C. § 1536(c)(2) (1988); 50
C.F.R. § 402.14(i)(5) (1991). They are not intended as a vehicle
for compensating past unauthorized takings. In addition, to the
extent that the Opinion, through the reasonable and prudent
measures and terms and conditions, serves in effect to Insulate
past unauthorized takings from section 9 liability, it is
disapproved by case law. In Defenders of Wildlife v.
Administrator. E.P.A.. 882 F.2d 1294 (8th Cir. 1989), •¦he Eighth
Circuit stated, "[u]nder the ESA, however, an agency must obtain
an incidental take statement before it takes the protected species.
The 1988 FWS statement does not retroactively excuse the takings
that occurred before the Secretary issued the statement." I£. at
1301 (emphasis added).
Furthermore, even if after-the-fact incidental take statements were
allowed, this project would not qualify because an" takings that
occurred would not fall v'.thin the definition of "incidental take"
provided at 50 C.F.R. § 402.02, which states "[iincidental take
refers to takings that result from, but are not tae purpose of,
carrying out an otherwise .awful activity...." 50 C.F.R. § 402.02
(1991). The Service indicated in its 1986 discussion of the
regulations that "otherwise lawful activities are those actions
that meet all State and Federal legal requirements except, for the
prohibition against taking in section 9 of the Act." 51 Fed. Reg.
19,926 (June 3, 1986). This project was not in compliance with the
Federal legal requirements established by the Clean water Act and
thus, if any takings occurred, they were not "incidental."
The Opinion's reasonable and prudent measures require acquisition
of habitat that meets the requirements of, among other species, the
-------
5
gopher tortoise( a candidate spaclaa. The Opinion's terns and
conditions provide that "[t]he replacement habitat for gopher
tortoise, end Bachman's sparrow augt be actively managed...."
opinion p. 11. Including these two candidate species in components
of the incidental take statement is without legal support. The
eastern population of the gopher tortoise and the Bachman's sparrow
are not protected by the Endangered Species Act and the applicant
therefore has no need for an incidental take statement which would
provide insulation from section 9 liability for takings of theBe
species. The Act and the Service regulations include a provision
for consideration of proposed species in the consultation process,
but are silent with respect to candidate species. See 16 U.S.C.
§ 1536(a)(4) (1988); 50 C.F.R. § 402.10 (1991). If the proposed
project is likely to jeopardize the continued survival of a
proposed species, a conference between the action agency and the
Service is initiated. Id- Proposed species are dealt with through
the conference and are not considered during the formal
consultation. £4. The Service can only issue non-binding
recommendations regarding proposed species. See 51 Fed. Reg. 19,926
(June 3, 1986) . If desired, the Service could also provide an
action agency with non-binding recommendations concerning candidate
species. 2fl. These recommendations should be issued separately,
however, to make clear that they are not part of the parameters of
an incidental take statement. The Service could choose to include
these recommendations as part of the conservation recommendations
for the project.
The reasonable and prudent measures and the terms and conditions
contained in this Opinion require extensive long-term management
of acquired habitat. Us such, they may exceed the bounds
established by Service regulations, which provide that "reasonable
and prudent measures, along with the terms and conditions that
implement them, cannot alter the basic design, location, scope,
duration, or timing of the action and may involve only minor
changes." 50 C.F.R. § 402.14(1X2) (1991 ).
Thg Onlnlon Incorrectly Finds A Violation of Section 7fd>
Sectidr. 7(d) provides that "lajfter initiation of consultation
required under subsection (a)(2)... the Federal agency and the
permit or license applicant shall not take any irreversible or
irretrievable commitment of resources wi :h respect to the agency
action " 16 U.S.C. § 1536(d) (1988); Sfifi also 50 C.F.R. § 402.09
(1991). The County did not seek a section 404 permit from the
Corps before constructing the road. At the time of the
construction, no section 7 consultation had been initiated for the
project. It is therefore not possible that the County's
construction activities violated section 7(d), which applies only
after consultation has been initiated. The Opinion correctly cites
the Service regulations, but goes on to find a violation of section
7(d} despite the fact that all construction activity occurred prior
to the initiation of consultation, stating "lb]ecause the project
-------
6
has Involved clearing of twelve alios of habitat without Federal
permits, the Service considers this project to be in violation of
section 7(d) of the Endangered Species Act." Opinion p. 9. This
proposition is not supported by the. language of the Act, the
regulations, or by case law. ££g 16 O.S.C. § 1536(d) (1988); SO
C.F.R. § 402.09 (1991).
The Opinion also notes that "excessive take has already occurred
in Violation of soctloa 7(6)...DftiaiAh p. g. Incidental takings
do not constitute a violation of section 7(d). The focus of
section 7(d) is on the irreversible or irretrievable commitment of
resouroes after initiation of consultation. Section 7(d) is
violated if an irreversible or irretrievable commitment of
resources is made during the consultation process irrespective of
whether any takings occur as a result or not.
The Opinion Does Hot Fully Address Effgefca of the Action or
Cumulative Impacts
Section 7, as implemented by the regulations, requires the Service
to consider the "effects of the action" and the "cumulative
effects" of other actions in determining the likelihood of
jeopardy. The "effects of the action" incorporates an
environmental baseline within which the impact of the subject
action can be determined. Service regulations define "effects of
the action" as:
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. The environmental baseline
includes the past and present ircpacts of all Federal,
State, or private actions and other human activities in
thi 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 *vis
impact of State or private actions which are
contemporaneous with the consultation in procesr.
Indirect effects are those that are caused by tha
proposed action and are later in time, but still are
reasonably certain to occur. Interrelated actions are
those that are part of a larger action and depend on the
larger action for their justification. Interdependent
actions are those that have no independent utility apart
from the action under consideration.
50 C.F.R. § 402.02 (1991).
Cumulative effects is defined as "those effects of future State or
private activities, not involving Federal activities, that are
-------
7
reasonably certain to occur within the action area of the Federal
action subject to consultation." 50 C.F.ft. § 402.02 (1991).
The Opinion does not provide any statement regarding either
cumulative effects or indirect and interdependent effects in the
action area. The Opinion1! focus is on whether the already
completed portions of the project resulted in jeopardy to any of
the species under consideration. In fact, the Opinion does not
even preside a determination of whether the direct effect of the
portion of the project yet to be completed will likely adversely
affect or jeopardise any of the protected species.
This Opinion highlights the difficulty with entering into
consultation concerning after-the-fact permit authorization.
Section 7 is inherently a forward-looking consultation process.
The Service would have been better served by issuing a Biological
Opinion for the uncompleted portion of the project only, treating
the completed portion as State action which was "past or present
or "contemporaneous with the consultation in process."
Recommendations to the Corps of Engineers concerning mitigation for
a violation of section 404 could then have been made outside the
context of section 7 consultation, it is likely that a forward-
looking consultation concerning this project would have avoided the
pitfalls associated with incidental take statements and the failure
to consider fully the "effects of the action" and the "cumulative
effects" of other actions.
The T.eoallv Acceptable Method for Approving the Applicant's Offer
to Acquire 122 Acres of Habitat
The Service has indicated that it believes the habitat that the
applicant has offered to acquire may be superior to the habitat
recommended in the Opinion. The Opinion notes that if the
recommended habitat is not acquired, the applicant must propose
acquisition of other habitat that is of equal or better quality.
The applicant has made a proposal that the Service believes
fulfills the requirement of the Opinion, despite the fact that the
total acreage is less than that recommended by the Opinion.
Normally, the Service could set forth in a written document
separate from the Opinion the reasons why the applicant's proposal
fulfills the requirement contained in the Opinion's reasonable and
prudent measures. The Servicecould also modify the Opinion itself
to provide the same information.
In this particular eas*>, however, reinitiation of consultation and
issuance of a revised Opinion may be necessary. Reinitiation is
required principally as a result of a meeting between the Service
and environmental groups on June 30, 1992, subsequent to the
request to the Solicitor's Office ffl* assistance. In the June 30
meeting, the Regional Counsel for the National Wildlife Federation
protested that the Opinion did not consider secondary impacts of
the project. The Service agreed that secondary impacts had not
-------
8
been considered. The Service will therefore need to reinitiate
consultation'to avoid a procedural violation of section 7(a)(2).
Reinitiation of consultation can be requested by the Service
pursuant to 50 C.F.R. § 402.IS, which provides in pertinent part:
Reinitiation of fosaal consultation is required and shall
be requested by the Federal agency or by the Service,
where discretionary Federal involvement or control over
the action has been retained or is authorized by law and:
(b) It new information reveals effects of the action
that may affect listed species or critical habitat in a
manner or to an extant not previously considered;
50 C.F.R. § 402.16 (1991).
The reported recent changes in zoning on lands adjacent to the
project are new information which would qualify under 50 C.F.R.
§ 402.16 because these zoning changes would not likely have
occurred but for the Federal project. See 51 Fed. Reg. 19,926,
19,932 (June 3, 1986), Sierra Club v. Marsh. 816 F.2d 1376, 1387
(9th Cir. 1987) for a discussion of the "but for" test for
determining whether an activity qualifies as an indirect effect.
The Service should consider all "effects of the action" and
"cumulative effects" of non-Federal actions, as these terns are
defined at 50 C.F.R. §402.02. It will be important to distinguish
projects which will qualify for Nationwide wetland permits from
those projects which are reasonably certain to require an
individual section 404 permit. Projects which will require
individual section 404 permits constitute future Federal action.
If any of the future Federal actions do not meet the "but for" test
for indirect effects, then they should not be considered in this
Opinion. This is because the Service will have an opportunity for
consultation during the future project's Federal permit
application. See 51 Fed. Reg. 19,926 (June 3, 1986) for a
discussion of the rationale for excluding future Federal projects
from inclusion in the analysis of cumulative effects. Although
the same rationale applies to future Federal actions that
constitute indirect effects, the "regulations make no distinction
between indirect effects which are Federal and those which are
State or private. The Service must therefore consider the impact
of future Federal actionc.hhafc qualify as indirect effects in this
°Pinion- -Y^oJr t**.
The Service should issue an incidental take statement that covers
the level of expected takings for the remainder of the project.
The reasonable and prudent measures and the terms and conditions
should not require more than is necessary to minimize the expected
level of take. It is likely that the applicant will not need to
acquire 122 acres of habitat to comply with the revised Opinion.
The Service Should therefore eoftiider requesting the habitat
acquisition as part of the conservation recommendations for this
-------
project, or as part of the recommendations Bade pursuant to the
Flah and Wildlife Coordination Act.
If you have any questions concerning this aatter, please contact
Sean C. Skaggc, an attorney in this office, at (404) 331-4950.
Roger Suahff ggfefc
-------
DRAFT
ENDANGERED SPECIES ACT
INTRA-SERVICE CONSULTATION HANDBOOK
(730 FW 4B)
U.S. FISH AND WILDLIFE SERVICE
WASHINGTON D.C.
NOVEMBER 1994
1
-------
Endangered Species Act lntra-Servlce Consultation Handbook - Hovcober 1994
TABLE OF CONTENTS
Page
GOALS 2
LISTED, PROPOSED, AMD CANDIDATE SPECIES INFORMATION 3
FISH AND WILDLIFE SERVICE ACTIONS 4
DEFINITIONS 5
BASIC PROCEDURES AND RESPONSIBILITIES 11
APPENDICES:
(A) Examples of step-by-step procedures for section 7 concurrence,
formal consultation, and conference 17
(B) Intra-Service Section 7 Biological Evaluation Form 20
1
-------
Endangered Species Act Intra-Servtce Consultation Handbook - November 1994
GOALS
Fish and Wildlife Service (Service) actions involving listed, proposed, and
category 1 candidate species will promote the conservation of those spacies to
the greatest extent practical under Federal law. This will be accomplished by
ensuring that Service-sponsored, authorized, or funded programs:
o use the best scientific and commercial information available, including
approved recovery plans, to assist Service decision makers;
o include the use of the best scientific and commercial data available for
all section 7 evaluations, and provide the benefit of the doubt to the
species if important scientific data are lacking;
o ensure an adequate buffer (degree of safety to the species) so that
subsequent chance or recurring events (e.g., drought, fire, flooding,
hurricanes, chemical spills, etc.) are not allowed to jeopardize the
continued existence of these species; and
o promote and expand the species' opportunities for survival and recovery.
2
-------
Endangered Species Act Intra-Servlce Consultation Handbook - November 1994
LISTED, PROPOSED, AND CANDIDATE
SPECIES INFORMATION
Knowledge of what species occur 1n an action area, Including Information on their
life histories, is integral to an 1ntra-Service section 7 consultation.
Ecological Services Offices (ESOs)* are responsible for providing lists of
species and critical habitats to Service programs within their jurisdictions.
Other Service units with responsibility for managing endangered and threatened
species (e.g., Refuges, Hatcheries) are responsible for keeping ESO information
bases updated for their lead species and critical habitats.
The Washington Office Division of Endangered Species will ensure that Regional
Office divisions are furnished lists of endangered, threatened, proposed, and
candidate species. Additional species information should be obtained from the
ESOs with lead responsibilities for that species. The above responsibilities of
the ESOs and other Service units do not remove from Project Leaders the
responsibility to assess which listed, proposed, and category 1 candidate species
occur within action areas.
*In this handbook, ESO includes the Regional or Washington Office Division of
Endangered Species for consultations conducted at those levels.
3
-------
Endangered Species Act Intra-Servlce Consultation Handbook - November 1994
FISH AND WILDLIFE SERVICE ACTIONS
The following is a partial list of Service actions that may be subject to section
7 consultation:
Ecological Services
Endangered species recovery plan implementation
Endangered Species Act section 10 permits*
Farm Bill activities
Partners for Wildlife
Private Lands initiatives
Contaminant cleanup, spills, response activities, remedial actions
Fisheries and Federal Aid
Endangered species recovery plan implementation
Wildlife Restoration Act and Sport Fish Restoration Act projects
Fisheries and Wildlife Assistance projects
Hatchery operations, endangered species projects, fish stocking, land
acquisition, construction
Endangered Species Act section 6 projects
Fish management plans
Refuges and Wildlife
Endangered species recovery plan implementation
Refuge operation and maintenance
Refuge habitat management and improvement projects, public use
programs, commercial activities, construction projects, land disposal
North American Waterfowl Management Plan activities
Pest control activities on refuge croplands
All
Endangered species recovery plan implementation
Information transfer (e.g., a Service publication on use of rotenone
should caution against use where vulnerable listed or candidate
species occur)
Superfund activities
Challenge grants
Partners in Flight
~Service activities such as marking, moving, and harassing that directly take
endangered and threatened species may require a section 10(a)(1)(A) permit. This
permit is subject to section 7 review and may require the issuance of a
biological opinion, especially if takings are involved.
4
-------
Endangered Species Act Intra-Servtce Consultation Handbook - November 1994
DEFINITIONS FOR INTRA-SERVICE CONSULTATIONS
Action - an activity or program of any kind authorized, funded, or carried
out, in whole or in part, by the Service in the United States. Examples
include, but are not limited to: (a) actions intended to conserve listed
species or their habitat; (b) the promulgation of regulations; (c) the
granting of licenses, contracts, leases, easements, rights-of-way, permits, or
grants-in-aid; (d) actions directly or indirectly causing modifications to the
land, water, or air; and (e) the funding of projects carried out by other
Federal agencies, States, private individuals, and other parties. [50 CFR
§402.02]
Action area - all areas to be affected directly or indirectly by the Service
action, not merely the immediate area involved in the action.
[50 CFR §402.02; Handbook section 4.5(A)]
Applicant - any person (an individual, corporation, partnership, trust,
association, or any other private entity; or any officer, employee, agent,
department, or instrumentality of the Federal Government, of any State,
municipality, or political subdivision of a State, or of any foreign
government; any State, municipality, or political subdivision of a State; or
any other entity subject to the jurisdiction of the United States) who
requires formal approval or authorization from the Service as a prerequisite
to conducting the action. [50 CFR §402.02; Handbook section 2.2(E)]
Biological assessment - information prepared by, or under the direction of,
the Service to determine whether a proposed action is likely to (1) adversely
affect listed species or designated critical habitat, 2) jeopardize the
survival of species that are proposed for listing or are category 1 candidates
for listing, or (3) adversely modify proposed critical habitat. The outcome
of this biological assessment determines whether formal consultation or a
conference is necessary. [50 CFR §402.02, 50 CFR §402.12; Handbook section
3-4]
Biological opinion - document stating the opinion of the Fish and Wildlife
Service or the National Marine Fisheries Service on whether or not a Fish and
Wildlife Service action is likely to jeopardize the continued existence of
listed species, or result in the destruction or adverse modification of
critical habitat. [50 CFR §402.02; Handbook section 4.5(A)]
Candidate species - plant and animal taxa considered for possible addition to
the List of Endangered and Threatened Species. [50 CFR §424.02(b)]
Candidate category 1 - taxa for which the Service has sufficient
information on biological vulnerability and threat(s) to support
proposals to list them as endangered or threatened species.
Candidate category 2 - taxa for which the Service has information
indicating that proposing to list as endangered or threatened is
possibly appropriate, but for which persuasive data on biological
5
-------
Endangered Spectes Act Intra-Servtee Consultation Handbook - November 1994
vulnerability and threat are not currently available to support proposed
rules.
Conference - a form of intra-agency cooperation involving discussions within
the Service pursuant to section 7(a)(4) of the ESA. Conferences are required
for Service actions likely to jeopardize species proposed for listing or
category 1 candidates, or likely to adversely modify proposed critical
habitat. Such conferences are designed to help the Service identify and
resolve potential conflicts between an action and species conservation early
in a.project's planning. They should identity recommendations to minimize or
avoid adverse effects. [50 CFR §402.02, §402.10; Handbook chapter 5]
Conservation - the terms "conserve," "conserving," and "conservation" mean to
use, or the use of, all methods and procedures necessary to restore a listed
species to the point at which ESA protection no longer is necessary. These
methods and procedures include, but are not limited to, all activities
associated with scientific resources management. Examples of such activities
are research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transportation, and -- in the extraordinary
case where population pressures within a given ecosystem cannot otherwise be
relieved -- regulated taking. [ESA §3(3)]
Conservation recommendations - suggestions resulting from formal or informal
consultation that (1) identify discretionary measures the Service can take to
minimize or avoid the adverse effects of a proposed action on listed species
or critical habitat; (2) identify studies, monitoring, or research to develop
new information on listed species or critical habitat; and (3) include
suggestions on how the Service can assist species conservation, in association
with the project, under the authority of section 7(a)(1) of ESA. [50 CFR
§402.02; Handbook section 4.5(D)]
Constituent elements - physical and biological features of critical habitat
including, but not limited to: (1) space for individual and population growth,
and for normal behavior; (2) food, water, air, light, minerals, or other
nutritional or physiological requirements; (3) cover or shelter; (4) sites for
breeding, reproduction, rearing of offspring, germination, or seed dispersal;
and generally, (5) habitats that are protected from disturbance or are
representative of the historic geographic and ecological distributions of a
species. [50 CFR 424.12(b)]
Critical habitat - (1) the specific areas within the geographical region
occupied by the species at the time it is listed, on which are found those
physical or biological features (a) essential to the conservation of the
species and (b) which may require special management considerations or
protection; and (2) specific areas outside the geographical area occupied by
the species at the time it is listed, upon a determination by the Secretary
that such areas are essential for the conservation of the species. Critical
habitats are described in 50 CFR Parts 17 or 226.
Cumulative effects - An analysis of those effects of future State, local, or
6
-------
Endangered Species Act Intra-Service Consultation Handbook - November 1994
private activities, not involving Federal activities, that are reasonably
certain to occur within the action area of the Service action subject to
consultation. [50 CFR §402.02; Handbook section 4.5(A)]
Destruction or adverse modification of critical habitat - a direct or indirect
alteration that appreciably diminishes the value of critical habitat for both
the survival and recovery of a listed species. Such alterations inrlude, but
are not limited to, alterations adversely modifying any of those physical and
biological features (which may have been determined as constituent elements)
that were the basis for determining the habitat to be critical. [50 CFR
§402.02]
Effects of the action - 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. The effects of the
action are considered along with the environmental baseline and the predicted
cumulative effects to determine the overall effects to the species for
purposes of preparing a biological opinion on the proposed action. [50 CFR
§402.02; Handbook section 4.5(A)]
Endangered species - any species that is in danger of extinction throughout
all or a significant portion of its range. [ESA §3(6)]
Environmental baseline - (1) past and current effects of all Federal, State,
or private actions and other human activity in an action area, (2) the
expected effects of all proposed Service projects in an action area that have
already undergone formal or early section 7 consultation, and (3) the effect
of State or private actions that are contemporaneous with the consultation
currently being conducted. [50 CFR §402.02; Handbook section 4.5(A)]
ESA - the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.
Federal agency - any department, agency, or instrumentality of the United
States. [ESA §3(7)]
Formal consultation - a process that determines whether a proposed Service
action is likely to jeopardize the continued existence of listed species or
destroy or adversely modify designated critical habitat. If a proposed
Service action is likely to adversely affect listed species or designated
critical habitat, formal consultation is required. The process (1) begins
with the Service's written request and submittal of a complete initiation
package; and (2) concludes with the issuance of a biological opinion and
incidental take statement. Activities subject to consultation include
proposed Service actions that are intended to benefit listed species but
adversely affect other listed species or critical habitat in the process, or
actions leaving residual adverse effects. [50 CFR §402.02, 50 CFR §402.14;
Handbook chapter 4]
Incidental take - take of listed animal species that results from, but is not
the purpose of, carrying out an otherwise lawful activity. [50 CFR §402.02;
7
-------
Endangered Species Act Intra-Servtce Consultation Handbook - November 1994
Handbook section 4.5(B)]
Indirect effects - environmental effects that are caused by, or will result
from, the proposed action and are later in time, but are still reasonably
certain to occur. [50 CFR §402.02]
Informal consultation - an optional process that includes all intra-Service
discussions and correspondence to determine whether a proposed Service action
is likely to adversely affect listed species or critical habitat. If a
proposed Service action is likely to result in adverse effects to listed
species or designated critical habitat, formal consultation is required. This
formal consultation requirement includes activities that will have an overall
beneficial effect on a listed species, but would result in some adverse
effects. [50 CFR §402.02, 50 CFR §402.13]
Interdependent actions - actions with no independent utility apart from the
action being considered in a biological opinion. [50 CFR §402.02; Handbook
section 4.4(A)]
Interrelated actions - actions that are part of a larger action and depend on
the larger action for their justification. [50 CFR §402.02; Handbook section
4.4(A)]
Is likely to adversely affect - the appropriate conclusion if any adverse
effect to listed species or critical habitat may occur as a direct or indirect
result of the proposed action or its interrelated or interdependent actions.
In the event the overall effect of the proposed action is beneficial to listed
species or critical habitat, but is also likely to cause some adverse effects,
the proposed action must be determined "is likely to adversely affect." Such
a determination requires formal intra-Service section 7 consultation.
Is likely to jeopardize proposed species, category 1 candidates, or adversely
modify proposed critical habitat - the appropriate conclusion when the Service
identifies situations in which the proposed action is likely to jeopardize the
continued existence of a species proposed for listing, category 1 candidates,
or adversely modify an area proposed for designation as critical habitat. If
this conclusion is reached, intra-Service conference is required.
Is not likely to adversely affect - the appropriate conclusion when effects on
the species or critical habitat are expected to be beneficial, discountable,
or insignificant. Beneficial effects have contemporaneous positive effects
without any adverse effects to the species or habitat. [See Handbook page 2-3
for discussion of benefit for section 10(a)(1)(A) permits.] Insignificant
effects relate to the size of the impact and should never reach the scale
where take occurs. Discountable effects are those extremely unlikely to
occur. Based on best judgment, a person would not (1) be able to meaningfully
measure, detect, or evaluate insignificant effects or (2) expect discountable
effects to occur.
Jeopardize the continued existence of - to engage in an action that reasonably
8
-------
Endangered Species Act Intra-Servlce Consultation Handbook - November 1994
would be expected -- directly or indirectly -- to reduce appreciably 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. [50
CFR §402.02]
Listed species - any species of fish, wildlife, or plant that has been
determined to be endangered or threatened under section 4 of ESA. [50 CFR
§402.02]
Major construction activity - a construction project (or other undertaking
having similar physical effects) that is a major Service action significantly
affecting the quality of the human environment as referred to in the National
Environmental Policy Act (NEPA, 42 U.S.C. 4332(2)(C)). The term encompasses
dams, buildings, pipelines, roads, water resource developments, and other such
undertakings that significantly modify the physical environment. [50 CFR
§402.02]
Plant - any member of the plant kingdom, including seeds, roots, and other
parts thereof. [ESA §3(14)]
Progranmatlc consultation - consultation addressing the Service's multiple
actions on a program, regional, or other basis. [Handbook section 4.7]
Proposed critical habitat - habitat proposed in the Federal Register to be
designated, or added through a proposed revision, as critical habitat under
section 4 of ESA for any listed or proposed species. [50 CFR §402.02]
Proposed species - any species of fish, wildlife, or plant that is proposed in
the Federal Register for listing under section 4 of ESA. [50 CFR §402.02]
Reasonable and prudent alternatives - alternative actions identified during
formal consultation that can be implemented in a manner consistent with the
intended purpose of the action, that can be implemented consistent with the
agency's legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid the
likelihood of jeopardizing the continued existence of the listed species or
the destruction or adverse modification of critical habitat. [50 CFR §402.02;
Handbook section 4.5(A)]
Reasonable and prudent measures - actions the Director believes necessary or
appropriate to minimize the effects (i.e., amount or extent) of incidental
take. [50 CFR §402.02; Handbook section 4.5(B)]
Recovery - improvement in the status of listed species to the point at which
listing is no longer appropriate under the criteria set out in section 4(a)(1)
of ESA. [50 CFR §402.02]
Service - the Fish and Wildlife Service.
Species - any species or subspecies of fish, wildlife, or plants, and any
9
-------
Endangered Species Act Intra-Service Consultation Handbook -
November ]994
distinct population segment of any species of vertebrate fish or wildlife that
interbreeds when mature.
Take - to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect
or attempt to engage in any such conduct. Harm is further defined to include
significant habitat modification or degradation that results in death or
injury to listed species by significantly impairing behavioral patterns such
as breeding, feeding, or sheltering. Harass is defined as actions that create
the likelihood of injury to listed species to such an extent as to
significantly disrupt normal behavior patterns which include, but are not
limited to, breeding, feeding or sheltering.
Threatened species - any species likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its range.
[ESA §3(20)]
10
-------
Endangered Species Act Intra-Servfce Consultation Handbook - November 1S94
BASIC PROCEDURES AND RESPONSIBILITIES
The timeframes and data requirements in the following procedures are the same
for all Federal agencies, and follow the section 7 consultation regulations at
50 CFR Part 402, except that Service actions shall include consideration of
category 1 candidate species as though proposed for listing.
Ask yourself the following:
(1) IS THERE A FEDERAL ACTION?
[Non-Federal action example: Within a Service unit, a private party is
undertaking an action affecting a listed or proposed species pursuant to a
private interest in land over which Service has no control.]
Federal actions include all activities or programs authorized, funded, carried
out, or permitted -- in whole or in part -- by Federal agencies in the United
States or on the high seas. Any Project Leader whose activities may affect
listed species or designated critical habitat, proposed species or proposed
critical habitat, or category 1 listing candidates must request consultation
or conference. Consultation requirements apply to new projects and ongoing
activities that "may" affect listed species or designated critical habitat.
Conferences are required for actions that "are likely" to jeopardize proposed
or category 1 candidate species, or adversely modify proposed critical
habitat.
Consultations may consider either individual actions or a Service program as a
whole. However, a programmatic consultation will not substitute for an
individual project consultation, unless the programmatic analysis lays out the
species-specific standards within which all individual activities will be
conducted.
(2) ARE LISTED, PROPOSED, OR CATEGORY 1 CANDIDATE SPECIES OR THEIR HABITAT
PRESENT?
The Project Leaders must first determine whether category 1 candidate,
proposed, or listed species (or their habitats) occur -- or have the potential
to occur -- in the action area. This may be done by reviewing agency records,
contacting knowledgeable sources (State agencies, Natural Heritage Program
offices, etc.), conducting surveys, and/or requesting a species list from the
appropriate ESO. The ESOs are the primary contacts for intra-Service section
7 consultation. Project Leaders can contact the appropriate ESO to begin
informal section 7 consultation or conference on the proposed action. ESO
responsibilities include conducting informal section 7 consultation, assisting
Project Leaders in evaluating effects of their proposed and existing actions,
responding to species information requests, responding to concurrence
requests, conducting informal conferences and issuing conference reports, and
preparing draft biological and conference opinions.
11
-------
Endangered Species Act lntra-Servlce Consultation Handbook - November 1994
INTRA-SERVICE SECTION 7 CONSULTATION OR CONFERENCE
PROJECT LEADER
Proposed/ongoing Federal action
~
Obtain a list of listed, proposed
and category 1 species and
critical habitat from the
Ecological Services Office*
-r
T
END
J NO i-*- | Species/critical habitat may be
P I I present in the action area
Complete Intra-Service Section 7
Biological Evaluation Form
END
NO («no effect)
Request written
concurrence**
MAY AFFECT
YES
~
_L
~
I
i
~
IS LIKELY TO
ADVERSELY AFFECT
r
~
IS NOT LIKELY TO
ADVERSELY AFFECT
REQUEST FORMAL
CONSULTATION
OR CONFERENCE
REQUEST WRITTEN CONCURRENCE
* Mandatory for ElS-type projects and optional for non ElS-type projects
** Optional
12
-------
Endangered Species Act Intra-Servlce Consultation Handbook -
November 1994
(3) IS THE PROPOSED FEDERAL ACTION A HAJOR CONSTRUCTION ACTIVITY?
Major construction activities encompass dams, buildings, pipelines, roads,
water resource developments, channel improvements, and other such projects
that significantly modify the physical environment. As a rule of thumb, if an
Environmental Impact Statement is required for the proposed action and
construction-type impacts are involved, it is considered a major construction
activity.
3.a. Major construction activity
For major construction activities, the Project Leader is required to request a
species list from the ESO or submit a species list to the ESO for
confirmation. When a species list is requested, the ESO has 30 days to
respond. The species list is effective for 90 days. If listed, proposed, or
category 1 candidate species are present, or suspected to be present, the
Project Leader is required to begin a biological assessment. This assessment
must be initiated within 90 days of receiving the list. It must be completed,
along with a determination of the likely effects (if any) of the action,
within 180 days; otherwise, the species list must be reverified.
If the Project Leader determines that a listed species or its habitat does not
occur in the action area, or does not have the potential to occur, and if the
ESO concurs in the determination, a biological assessment is not required and
the section 7 process ends.
A biological assessment is not required if only proposed or category 1
candidate species are present: however, a biological assessment is recommended
for these species, because an assessment will be required if the species is
listed before or during implementation of the proposed action.
3.b. No major construction activity
Even if the action is not a major construction activity, consultation may be
necessary. The Project Leader may initiate or continue informal consultation
to determine if formal consultation is required. The Project Leader may
submit a species list for confirmation or request a species list from the ESO.
When the Project Leader oetermines that a listed species or its habitat does
not occur or potentially occur in the action area, the section 7 process ends,.
If a listed, proposed, or category 1 candidate species or its habitat is
present, the Project Leader should determine whether the action "may affect"
those species or habitat. Completing the INTRA-SERVICE SECTION 7 BIOLOGICAL
EVALUATION FORM "Service Evaluation Form" (see Appendix B) will assist the
Project Leader in determining the potential effect of the proposed action.
13
-------
Endangered Species Act Intra-Servtce Consultation Handbook - November 1994
4. IS THERE A "MAY AFFECT" SITUATION?
The Service Evaluation Form or a biological assessment, as appropriate, is
used for informal analysis of all actions affecting species subject to section
7. Review the instructions for this form for determinations of "no effect,"
"may affect," "is not likely to adversely affect," and "is likely to
adversely affect."
In determining the potential effect of the action, the Project Leader needs to
review enough information on the species and its habitat to assess whether the
action may affect the species' population, reproductive capability, food
supply, cover needs, pollinators, symbionts, predators/competitors, or other
such biological factors. For designated or proposed critical habitat, the
assessment should address the potential effect on important components of the
critical habitat (some of which are identified as constituent elements) and
the conservation role of the critical habitat unit.
When the Project Leader determines that the proposed action will have "no
effect" on the listed, proposed, or category 1 candidate species or its
habitat, the consultation process ends. Concurrence from the ESO is not
required, but if the ESO is aware of and disagrees with the no effect
determination, a memorandum outlining the disagreement and requesting
continued consultation will be provided to the Project Leader. If a high
level of sensitivity or controversy is associated with the action or the
species, written concurrence from the ESO is recommended.
Project Leaders should use the informal consultation process whenever
possible. The Service Evaluation Form should be completed for this purpose.
As required of all other Federal agencies, the Service program (i.e., Refuges,
Federal Aid, Ecological Services, Fisheries, Management Assistance, Endangered
Species, etc.) that initiates a new action or continues an existing activity
is responsible for obtaining the best scientific and commercial information
available to complete the consultation. Much of the information may already
be available through the ESO. The consultation may require surveys in the
project area to determine species' presence and status, seasonal use pattern,
condition of the species' habitat, juxtaposition to the action/activity, etc.
5. WHAT ARE THE OPTIONS FOR -MAY AFFECT" SITUATIONS?
When the Project Leader determines the action "may affect" a listed species, a
designated or proposed critical habitat, or proposed or category 1 candidate
species, the options are (1) to continue informal consultation with the ESO or
(2) to initiate formal consultation or conference. The "may affect"
evaluation looks not only at effects on the entire species or local management
unit, but also considers the effect on individual members of the species. If
even one individual may be affected, the biologist must conclude that there is
a "may affect" situation. Project modifications agreed upon during informal
consultation may result in a "no effect" determination, thus eliminating the
need for formal consultation or conference.
14
-------
Endangered Species Act Intra-Servtce Consultation Handbook - November 1994
When the Project Leader finds that the proposed action may affect, but 1s "not
likely to adversely affect," listed, proposed, or category 1 candidate
species, or designated or proposed critical habitats, a request for
concurrence with that finding is sent to the appropriate ESO. The Project
Leader can make such a finding only if all of the effects of the proposed
action will be beneficial, insignificant, or discountable (see page 8). A
copy of the Service Evaluation Form supporting the Project Leader's
determination should be forwarded to the appropriate ESO within 30 days of
that determination. The ESO will respond to the Project Leader's written
request for concurrence within 30 days of receiving the request. Concurrence
with the "not likely to adversely affect "finding completes the requirements
for section 7 consultation. If any adverse effect or any incidental take of
listed species or critical habitat 1s likely to occur, formal consultation
must be initiated.
Section 7 consultation must be conducted prior to issuing permits for the
¦incidental take of listed species, even for activities conducted during
recovery efforts for these species. These permits must include appropriate
conditions to avoid or minimize incidental take, and to ensure the disposition
of any dead or injured specimens in a way that preserves their potential use
in other recovery activities.
6. WHAT ARE THE PROCEDURES FOR FORMAL CONSULTATION OR FORMAL CONFERENCE?
Once an ESO receives a Project Leader's written request for a formal
consultation or formal conference, this stage of the process will be concluded
within 90 days. After the consultation or conference is concluded, a
biological opinion or conference report will be delivered by the ESO within an
additional 45 days. Extensions are available only by mutual agreement.
These timetables begin when the ESO receives a written request and enough
information with which to proceed. The information can be provided by means
of (1) a Service Evaluation Form, (2) a biological assessment, or (3) a report
containing the following data: (a) a description of the proposed action; (b)
a description of the specific area that may be affected; (c) a description of
any listed, proposed, or category 1 candidate species, or any designated or
proposed critical habitat, that may be affected; (d) a description of how the
action may affect these species or habitats; (e) relevant reports, including
any environmental impact statement, environmental assessment, or biological
assessment prepared; (f) the cumulative effects in the action area; and (g)
any other relevant information available. The ESO can assist in determining
what type of data will be needed for the formal consultation or conference.
A biological opinion looks beyond the effects of the proposed action. It also
considers the overall status of the species, and the environmental baseline
and cumulative effects in the action area. Additionally, if incidental take
is anticipated as a result of the proposed action, the incidental take
statement that accompanies the biological opinion will lay out
nondiscretionary reasonable and prudent measures to minimize that take,
consistent with the requirements of sections 7(a)(2) and 7(b(4).
15
-------
Endangered Species Act Intra-Servlce Consultation Handbook - November 1994
Draft biological opinions and conference reports will be forwarded by the ESO
to the Regional Office Division of Endangered Species at least 2 weeks prior
to the end of the 90-day consultation period. The Service Evaluation Form,
along with other pertinent information, is transmitted with the draft
biological opinion or conference report. The Project Leader is offered an
opportunity to review the draft document when the draft determination is
jeopardy and/or adverse modification, or when incidental take is anticipated.
In these instances, it is beneficial to coordinate the development of
reasonable and prudent alternatives and/or reasonable and prudent measures.
If disagreements arise during this process, they can be elevated through the
appropriate Assistant Regional Directors for resolution.
Consistent with current delegations of authority, Regional Directors sign
intra-Service section 7 biological opinions and conference reports.
7. WHAT ARE THE OPTIONS IF A JEOPARDY/ADVERSE MODIFICATION OPINION IS
RECEIVED?
If a final jeopardy or adverse modification biological opinion or conference
opinion is issued, the Project Leader must notify the ESO of the final
decision on the proposed action. The Project Leader has three options: (a)
to implement the reasonable and prudent alternative(s) provided with the
biological opinion; (b) to refrain from funding, approving, or undertaking the
project; or (c) to apply for an exemption from section 7 of the ESA. The
Service does not anticipate that an action proposed under its programs will
ever justify an exemption application.
OTHER SERVICE CONSULTATION CONSIDERATIONS
The ESO preparing the draft biological opinion, draft conference report, or
concurrence document will be separate from the office proposing the action,
except for biological opinions required for section 10(a)(1)(B) permits, which
are handled by separate organizational entities in the Regional Office's
Division of Endangered Species.
Regional Office Divisions of Endangered Species have lead coordination
responsibilities for national and interregional consultations. In addition,
Regional Offices provide oversight of the consultation program for quality
control. For expedience in processing consultations, a Service Project Leader
may assume the lead responsibility for formal consultation in multi-agency
actions if the Service's role is significant.
All Project Leaders have a continuing responsibility to determine if
discretionary ongoing activities of the Service (no matter when the activities
were initiated) comply with these guidelines and procedures.
16
-------
Endangered Species Act Intra-Servfce Consultation Handbook - November 1994
Appendix A
EXAMPLES OF STEP-BY^STEP PROCEDURES FOR IHTRA-SERVICE
SECTION 7 CONCURRENCE, FORMAL CONSULTATION, AND CONFERENCE
A. Concurrence
Situation: The Division of Federal Aid (FA) receives a project proposal from
a State. The project is eligible for funding under the Wildlife
Restoration Grant Program.
Step:
1. FA requests a list of listed, proposed, and category 1 candidate
species from the ESO. This request includes information on the
specifics of the State request.
2. Within 30 days of receiving the request, ESO furnishes FA with a
list of species that may be present in the action area.
3. Upon receipt of the species information, FA conducts a "may
affect" analysis on listed, proposed, and category 1 candidate
species.
4. A "may affect" determination is made; FA completes the Service
Evaluation Form and determines the action "is not likely to
adversely affect" the listed, proposed, or category 1 candidate
species, and requests in writing that the ESO concur with this
evaluation.
5. ESO responds within 30 days of receiving FA's request that there
is concurrence, and therefore no need for formal intra-Service
section 7 consultation.
6. If FA determines "no effect," a request for concurrence is
unnecessary.
B. Formal Consultation
Situation: The Division of Fisheries (DF) receives a request from a State for
an action.
Step:
1. DF requests a list of listed, proposed, and category 1 candidate
species from the ESO. This request includes information on the
specifics of the State request.
17
-------
Endangered Species Act Intra-Servtce Consultation Handbook - November 1994
2. Within 30 days of receiving the request, the ESO furnishes DF with
a list of species that may be present in the action area.
3. Upon receiving the species information, DF conducts a "may affect"
analysis on listed, proposed, and category 1 candidate species
that ESO said may be present.
4. DF concludes that the proposed action is likely to adversely
affect listed species.
5. DF requests, in writing, initiation of formal section 7
consultation. A completed Service Evaluation Form is submitted
with the request.
6. ESO acknowledges the request for formal section 7 consultation.
7. ESO prepares the draft biological opinion and submits to the
ARD/ES for review.
8. The RD signs the biological opinion and forwards it to DF with a
copy to the ARD/DF.
C. Conference
Situation: Refuges proposes an action in an area containing a proposed or
category 1 candidate species.
Step:
1. Refuges requests a list of listed, proposed, and category 1
candidate species from the ESO. This request includes information
on the specifics of the request.
2. Within 30 days of receiving the request, the ESO furnishes Refuges
with a list of species that may be present in the action area.
3. Upon receiving the species information, Refuges conducts a "may
affect" analysis on listed, proposed, and category 1 candidate
species that ESO said may be present.
4. Refuges works with the ESO to assess whether or not their proposed
action may jeopardize the continued existence of the proposed or
category 1 candidate species. Refuges evaluates their proposal
for its potential effect on the proposed or category 1 candidate
species.
5. As a result of the evaluation, Refuges concludes their proposal is
likely to jeopardize the proposed or category 1 candidate species.
18
-------
Endangered Species Act Intrt-Servlca Consultation Handbook - Novonber 1994
Refuges requests conference with ESO on the Service Evaluation
Form and asks for additional Information.
6. The conference is held and ESO submits a draft conference report
(the format follows that of a biological opinion issued through
formal consultation) to the ARD/ES for review. The report
contains advisory recommendations for minimizing or avoiding
adverse effects,
7. The Regional Director signs the conference report and forwards it
to Refuges with a copy to the ARD/Refuges. Refuges reviews the
conference opinion and implements the actions that will avoid
adverse effects to the proposed or category 1 candidate species.
19
-------
Endangered Species Act Intra-Servlce Consultation Handbook - November 1994
Appendix B
INTRA-SERVICE SECTION 7 BIOLOGICAL EVALUATION FORM
[Note: This form provides the outline of information needed for consultation.
If additional space is needed, attach additional sheets, or set up this form
to accommodate your responses.]
Originating Person:
Telephone Number:
Date:
I. Region:
II. Service Activity (Program)
III. Pertinent Species and Habitat:
A. Listed species and/or their critical habitat within the action
area:
B. Proposed species and/or proposed critical habitat within the
action area
C. Category 1 candidate species within the action area:
D. Include species/habitat occurrence on a map.
IV. Geographic area or station name and action:
V. Location (attach map):
A. County and State:
B. Section, township, and range (or latitude and longitude):
C. Distance (miles) and direction to nearest town:
20
-------
Endangered Species Act Intra-Servlce Consultation Handbook - November 1994
VI. Description of proposed action (attach additional pages as needed):
VII. Determination of effects:
A. Explanation of effects of the action on species and critical
habitats in items III. A, B, and C (attach additional pages as
needed):
B. Explanation of actions to be implemented to reduce adverse
effects:
VIII. Effect determination and response requested: [* optional]
21
-------
Endangered Speclas Act Intra-Servlce Consultation Handbook - Novamber 1994
A. Listed spedes/crltical habitat:
Determination
no effect
(species:
is not likely to adversely affect
(species:
Response requested
~Concurrence
Concurrence
~Formal Consultation
1s likely to adversely affect
(species:
B. Proposed species/proposed critical habitat:
Determination
no effect
(species:
is not likely to adversely affect
(species:
is likely to adversely affect
(species:
no effect
(species:
is not likely to adversely affect
(species:
is likely to adversely affect
(species:
is likely to jeopardize
(species:
_) Formal Consultation
is likely to jeopardize/adverse modification
of critical habitat
(species: )
C. Category 1 candidate species:
Determination
Response requested
) ~Concurrence
) Concurrence
) Informal conference
Conference
Response requested
~Concurrence
_) Concurrence
Informal conference
Conference
22
-------
Endangered Species Act Intra-Servlce Consultation Handbook - Hovenber 1994
IX. Reviewing ESO Evaluation:
A. Concurrence Honcurrence
B. Formal consultation required
C. Conference required
0. Remarks (attach additional pages as needed):
signature date
[Title/office of reviewing official]
23
-------
Endangered Species Act Intra-Service Consultation Handbook - November 1994
INSTRUCTIONS
Originating Person: The person(s) who prepared the Intra-Service Section 7
Biological Evaluation Form.
Date: Date the information on the form was finalized.
I Region: Self-explanatory.
II Service activity: The Service program initiating the proposed action.
III Pertinent species and habitat.
(A) Listed species and/or their critical habitat within the action
area: The action area includes the immediate area where the proposed
action will occur, as well as any other areas where direct or indirect
impacts of the action may be expected. For example, effects of an
action in the headwaters of a stream may affect endangered fish that
occur 20 miles downstream. A compilation of listed species or critical
habitats that possibly occur in the action area may be generated by the
Project Leader> or it may be requested from the appropriate ESO.
Note: All experimental populations of listed species are treated as
threatened species. However, for the purposes of section 7
consultation, they are treated as species proposed for listing if they
occur off National Wildlife Refuge or National Park System lands and
they are classed as "non-essential" experimental populations.
List all threatened and endangered species and critical habitat that
will or may be affected by the proposed action. An effect exists even
if only one individual or habitat segment may be affected. Consider
both beneficial and adverse effects, regardless of their magnitude.
It is necessary to list all threatened and endangered species and
critical habitats in the action area that will not be affected at any
level of significance. This informs the reviewer that such species have
been considered.
(B) Proposed species and/or proposed critical habitat within the action
area: Lists of proposed species and critical habitat that could occur
in the action area may be generated by the project leader or may be
requested from the appropriate ESO.
List all species and habitats in the action area for which a proposed
listing rule (but not a final rule) or proposed critical habitat
designation has been published in the Federal Register. The list should
include not only proposed species that may be affected, but also those
that will not be affected. Use the same consideration as in Item III
(A) above.
24
-------
Endangered Species Act Intra-Servtce Consultation Handbook - November 1994
(C) Category 1 candidate species within the action area: Lists of
candidate species that could occur in the action area may be generated
by the project leader or may be requested from the appropriate ESO.
List all category 1 species that may be affected by the proposed action.
Because listing candidates may be added to, or dropped from, category 1
between the typically biannual printings of the Notice of Review, it is
necessary to check candidate lists with the appropriate ESO.
Include in the list of category 1 species in the action area those that
will not be affected by the proposed action.
IV Geographic area or station name and action:
Briefly describe the proposed action and where it will occur. (For
example: The proposed action is to directly stock, or transfer to the
State of X for stocking, channel catfish and smallmouth bass. These
stockings would occur in both Blue Water and Minnow River drainages). A
more detailed description of the proposed action will be presented under
Section VI.
V Location (attach map}:
In addition to the following four specific descriptions, it is vital to
attach a map(s). The reviewer may not be familiar with the project area
and will need the maps to precisely relate the proposed project to the
affected species. Haps should depict, preferably in large scale, the
exact locations of project elements. The maps should include section,
township, and range, or latitude and longitude. Topographic maps are
preferred, with the action area depicted on them.
(A) County and State: Self-explanatory.
(B) Section, township, and range (or latitude and longitude):
Locate the project area as precisely as possible. If the action is
stocking a small stock tank, the descriptor should include at least
quarter section and preferably quarter/quarter section. For scattered
project sites, such as in fish stocking, a location should be given for
each site.
(C) Distance (miles) and direction to nearest town: Self- explanatory.
(D) Species/habitat occurrence: Depict on the location map the species
and habitat occurrences.
VI Description of proposed action:
What is the purpose of this proposed action and how do you plan to
25
-------
Endangered Species Act lntra-Servlce Consultation Handbook - November 1994
accomplish it? Describe the project area as well as the project. These
descriptions should be detailed enough so that the reviewer can fully
understand what the components of the action include and how the project
will affect the species of concern. Do not assume that the reviewing
office will understand procedures that are taken for granted within your
program. Details can be provided here, or by attaching copies of
project plans, management plans, stocking schedules, or other project
documents. National Environmental Protection Act documents are usually
helpful attachments. Sketches or blueprints of the proposed action
should be attached. Proposed project dates should be provided. Attach
a biological assessment if the project is considered a "major
construction activity." Include any measures agreed to through informal
consultation to reduce any adverse Impacts.
VII Determination of effects
(A) Explanation of effects of the action:
Discuss either the effects of the action on each listed, proposed, or
candidate species and critical habitat in the action area, or why those
species or critical habitats will not be affected. For species or
critical habitats affected by the proposed action, provide the following
information: [Note: Candidate species will have no proposed critical
habitat.]
(1) Status of species in action area; is it native (natural and/or
stocked) or non-native in the action area? Include population
and/or distribution trends (provide survey information).
(2) Species habitat in the action area and its significance to
spawning, feeding, migratory habits (or behavior), cover, roost,
etc. Is the area currently occupied or unoccupied historic range
for the species?
(3) Impacts of the proposed action on species and/or critical habitat,
including direct, indirect, interdependent, interrelated, and
cumulative impacts.
(4) Quantification of effects - acres of habitat, miles of habitat,
number of individuals, etc.
(5) Summary of effects - include the basis for your conclusion - best
judgment, literature, citations, studies, etc.
(B) Describe, if known, project modifications that would promote the
conservation of the affected species. Project modification ideas
may be found in recovery plans. Although section 7 of ESA
prohibits only those actions by Federal agencies which are likely
to jeopardize listed species or adversely modify critical habitat,
26
-------
Endangered Species Act Intra-Servlce Consultation Handbook - November 1994
the Service has a commitment to recovering listed species and
trying to prevent the need to list more species.
VIII. Effect determination and response requested:
Enter the species in the appropriate determination. For each
determination, place an X on the response requested.
(A) Listed species/critical habitat:
No effect. This conclusion is reached if the proposed action and its
interrelated and interdependent actions will not directly or indirectly
affect listed species or critical habitat. Formal section 7
consultation is not required when the no effect conclusion is reached.
A request for the optional written concurrence is encouraged.
Is not likely to adversely affect. This conclusion is appropriate when
effects to the species or critical habitat are expected to be
beneficial, discountable, or insignificant. Beneficial effects have
contemporaneous positive effects without any adverse effects to the
species or habitat. Insignificant effects relate to the size of the
impact (and should never reach the scale where take occurs), while
discountable effects are those that are extremely unlikely to occur.
Based on best judgment, a person would not: (1) be able to meaningfully
measure, detect, or evaluate insignificant effects; or (2) expect
discountable effects to occur. If the ESO concurs in writing with the
Project Leader's determination of "is not likely to adversely affect"
listed species or critical habitat, the section 7 consultation process
is completed.
If formal section 7 consultation is required for other species affected
by this proposed action, then it may be easier and less confusing to
fold the "is not likely to adversely effect" concurrence into the formal
section 7 consultation rather than doing a separate concurrence.
Is likely to adversely affect. This conclusion is reached if any
adverse effect to listed species or critical habitat may occur as a
direct or indirect result of the proposed action or its interrelated or
interdependent actions. In the event the overall effect of the proposed
action is beneficial to the listed species or critical habitat, but may
also cause some adverse effect on individuals of the listed species or
segments of the critical habitat, then the determination should be "is
likely to adversely affect." Such a determination requires formal
section 7 consultation.
Example: A refuge proposes prescribed burning for a prairie
remnant to improve the habitat for the endangered Karner blue
butterfly. The burn will substantially improve the habitat for
the species and promote its recovery in subsequent years.
However, individual Karner blue butterfly eggs and larvae will be
27
-------
Endangered Species Act Intra-Servtce Consultation Handbook - November 3994
killed during the burn. Even though the net effect of the burn
will be highly beneficial to the listed species, the burn must be
considered to have an adverse effect. A finding of "is likely to
adversely affect" is necessary.
(B) Proposed species/proposed critical habitat:
Ho effect. This conclusion is appropriate for a proposed species or
proposed critical habitat when no effects are expected. A request for
optional written concurrence is encouraged.
Is not likely to adversely affect. This conclusion is appropriate when
all effects on a proposed species or proposed critical habitat are
expected to be beneficial, discountable, or insignificant. Beneficial
effects have contemporaneous positive effects without any adverse
effects to the species or habitat. Insignificant effects relate to the
size of the impact (and should never reach the scale where take occurs),
while discountable effects are those that are extremely unlikely to
occur. Based on best judgment, a person would not: (1) be able to
meaningfully measure, detect, or evaluate insignificant effects; or (2)
expect discountable effects to occur. Written concurrence is
recommended.
Is likely to adversely affect. This conclusion is reached if any
adverse effects on proposed species or critical habitat may occur as a
result of the direct or indirect effects of the proposed action or its
interrelated or interdependent actions. In the event the overall effect
of the proposed action is beneficial to proposed species or proposed
critical habitat, but may also cause some adverse effect on individuals
of the proposed species or segments of the proposed critical habitat, '
then the determination should be "is likely to adversely affect." Such
a finding does not require a conference, but discussion with the
appropriate ESO is encouraged. This provides an informal opportunity to
suggest ways in which the adverse effects can be minimized.
Is likely to jeopardize proposed species/adversely modify proposed
critical habitat. For proposed species and proposed critical habitats,
the Service is required to evaluate whether the action being considered
is likely to jeopardize the proposed species or adversely modify the
proposed critical habitat. If this conclusion is reached, a section 7
conference is required. For additional guidance on what constitutes
jeopardy to a proposed species and adverse modification of proposed
critical habitat, see the definition section or contact the appropriate
ESO.
(C) Category 1 candidate species:
No effect. This conclusion is reached if the proposed action and its
28
-------
Endangered Species Act lntra-Servlce Consultation Handbook - November 1994
Interrelated and interdependent actions will not directly or indirectly
affect category 1 candidate species. A request for the optional written
concurrence is encouraged.
Is not likely to adversely affect. This conclusion is appropriate when
all effects on a category 1 candidate are expected to be beneficial,
discountable, or insignificant. Beneficial "effects have contemporaneous
positive effects without any adverse effects to the species or habitat.
Insignificant effects relate to the size of the impact (and should never
reach the scale where take occurs), while discountable effects are those
that are extremely unlikely to occur. Based on best judgment, a person
would not: (1) be able to meaningfully measure, detect, or evaluate
insignificant effects; or (2) expect discountable effects to occur.
Written concurrence is recommended.
Is likely to adversely affect. This conclusion is reached if any
adverse effects on the category 1 candidate may occur as a result of the
direct or indirect effects of the proposed action or its interrelated or
interdependent actions. In the event the overall effect of the proposed
action is beneficial to the category 1 candidate species, but may also
cause some adverse effect on individuals of the species, then the
finding should be "is likely to adversely affect." This finding does
not require a conference, but discussion with the appropriate ESO is
encouraged. This will provide an informal opportunity to suggest ways
in which the adverse effects can be minimized.
Is likely to .jeopardize proposed category 1 candidate species. For
category 1 candidate species, the Service is required to evaluate
whether the proposed action is likely to jeopardize the category 1
candidate species. If this conclusion is reached, a section 7
conference is required. For guidance on what constitutes jeopardy to a
category 1 candidate species, see the definitions section or contact the
appropriate ESO.
29
-------
Endangered Species Act Intra-Service Consultation Handbook - Novoober 1994
APPENDIX F
GENERAL INSTRUCTIONS TO BE FOLLOWED BY EPA PERSONNEL*
UPON DISCOVERY OF A SICK OR INJURED OR DEAD LISTED SPECIES
The primary objective in handling a sick or injured specimen is effective
treatment and care. The primary objective when encountering a dead
specimen is to preserve biological materials in the best possible state for
later analysis of cause of death; preserving biological materials is also
preserving evidence. In conjunction with treatment of sick or injured
animals, the finder has a responsibility to ensure that evidence extrinsic
to the specimen is not unnecessarily disturbed. Therefore, upon locating
a dead injured or sick endangered or threatened species specimen:
1. Contact a wildlife law enforcement agent immediately. DO NOT disturb
the scene or the carcass (if the specimen is dead). It is preferable
to contact a Service agent, but if one is not immediately available, a
State agent should be contacted. The law enforcement agent will need
to make a determination as to whether or not legal action should be
taken. Specifically request instructions on handling the sick/injured
or dead specimen in order to effectively treat or preserve it.
Strictly follow all instructions provided by the agent.
2. In cooperation with the wildlife enforcement agent, contact either: (a)
the National Wildlife Health Research Center (NWHR) in Madison,
Wisconsin at (608) 271-4640 for vertebrates other than fish; (b) the
National Fisheries Research Center - Leetown in Kearneysville, West
Virginia at (304) 725-8461 for fish; or (c) for invertebrates and
plants contact the appropriate Fish and Wildlife Service Field or
Regional Office specified in the biological opinion. You will be
provided with specific guidance regarding care preservation and
shipment for postmortem evaluations. General Instructions are provided
in Attachment 1. Additional detail is available in Fish and Wildlife
Service Resource Publication 161, "Field Guide to Wildlife Diseases."
However, SPECIFIC INSTRUCTIONS HAY VARY DEPENDING ON THE CIRCUMSTANCES
INVOLVED.
In general, it is important to contain a dead specimen in a plastic bag
and chill it as soon after discovery as possible by the use of
refrigeration, blue ice packs or wet ice. If delays of more than 24
hours are anticipated in shipping the carcass, it should be frozen
immediately.
3. Field observations and data are important for guiding cause of death
or sickness investigations. As complete a case history as possible
should accompany each report. Information should include location,
proximity to manmade structures (roads, powerlines, fences, etc.),
information on pesticides used in the vicinity (name, formulation,
date when last applied, conditions during and after last application,
etc.), presence of any specimens of nonlisted species, and other
-------
Endangered Species Act Intra-Servtce Consultation Handbook - Novenber 1994
pertinent information such as that Identified in Attachment 2.
Necropsy findings and evaluation of the case history will determine
whether chemical analysis should be performed.
4. Inform the appropriate Fish and Wildlife Service Field or Regional
Office of the incident as specified in the biological opinion.
* The handling of a listed species requires a Federal endangered
species permit except for employees or agents of a State conservation
agency or a Federal land management agency who are acting in an
official capacity.
-------
Endangered Species Act Jntra-Servlce Consultation Handbook - November 1994
Attachment 1
SPECIMEN SHIPMENT
National Wildlife Health Research Center
1. Call the Center at (608) 271-4640 to determine type and number of
specimens needed, preservation of specimens during shipment, and when
they should be shipped. Your call will be responded to by a member of
the Resource Health Team.
2. Label each specimen, double-bag it, and place it in a styrofoam cooler
lined with a plastic bag. Frozen specimens generally do not require
ice; they will remain frozen for up to 24 hours if the volume is large
enough (i.e., six frozen mallards in one cooler will not require ice,
but one frozen mallard will). Always use refrigerant with fresh
specimens or intersperse with frozen specimens.
3. Blue ice packs are usually the best refrigerant to use. Block ice or
cubes must be properly bagged to prevent leakage. When ice packs are
used, intersperse them among specimens and fill in empty space in
cooler with newspaper.
4. Close the plastic bag lining the cooler and seal the lid with strapping
tape.
5. Tape specimen data sheet and history, contained in an envelope within
a plastic bag, to the top of the cooler.
6. Place the styrofoam cooler in a cardboard box and seal the lid with
strapping tape.
7. Address cardboard box to:
National Wildlife Health Research Center
6006 Schroder Road
Madison, Wisconsin 53711
[Include return address on outside of box.]
8. Write "Diagnostic Specimens (Wildlife)" on outside of cardboard box.
9. Ship on a carrier that can get the package to the Center within 24
hours. Air freight or U.S. Postal Express mail are usually preferred;
check prices. Overnight delivery services (DHL, Federal Express,
Purolator, or Emery) can also be used but may be significantly more
expensive.
10. Call the Center with an airbill number, carrier used, and estimated
time of arrival in Madison.
-------
Endangered Species Act Intra-Servlce Consultation Handbook - November 1994
Attachment 2
Supplemental Information to be Provided with Carcass Submissions*
Species
Number Submitted
Date
Contact name
Address and Phone Number
Affiliation
Location
County
State
Others with knowledge of this event
that could be contacted for further
information.
How many sick or dead animals have been found?
Are other species involved? If so identify them
When did sick or dead animals first appear?
What are the physical conditions of the diseased animals? (fresh
decomposed emaciated etc.)
What clinical signs (symptoms) have been observed?
What are the age and sex of the animals involved?
Are the carcasses concentrated or dispersed?
Are the animals dying quickly or slowly?
Is there evidence of struggling?
How large an area is involved?
What is the general vegetative composition of the area?
What are the habitat conditions?
What are the major water supplies?
What are the major food supplies?
What were the climatic conditions prior to the problem?
Have there been any unusual changes on the area recently? If so what?
Are there livestock/poultry or domestic animals on or adjacent to the area?
What is the proximity of carcasses to human activities (agriculture mining.
etc.) and manmade structures (fences roads power lines train tracks etc.)
What pesticides (and formulations) have been used in the vicinity and when
and how (aerial ground) wore they last applied?
* Provide information to as many of these questions as possible.
-------
Endangered Species Coniul tat ton Handbook—Nov^nr 1994
APPENDIX 6 - SERVICE/NHFS FIELD OFFICES HANDLING SECTION 7
June 21, 1994
Fish & Wildlife Service Regional. Field, and State Offices
handling endangered species consultations
Region 1: CA, HI, ID, NV, OR, WA, Pacific
Regional Director
U.S. F1sh and Wildlife Service
911 NE 11th Avenue
Portland, Oregon 97232-4181
Telephone: 503-231-6118
Fax: 503-231-2122
Field Supervisor
U.S. Fish and Wildlife Service
2800 Cottage Way, Room E-1803
Sacramento, California 95825
Telephone: 916-978-4513/4866
Fax : 916-978-4619
Field Supervisor
U.S. Fish and Wildlife Service
2730 Loker Avenue West
Carlsbad, California 92008
Telephone: 619-431-9440
Fax: 619-431-9624
Field Supervisor
U.S. Fish and Wildlife Service
2140 Eastman Avenue, Suite 100
Ventura, California 93003
Telephone: 805-644-1766
Fax: 818-904-6288
Field Supervisor
U.S. Fish and Wildlife Service
300 Ala Moana Blvd., Room 6307
P.O. Box 50167
Honolulu, Hawaii 96850
Telephone: 808-541-2749
Fax: 808-541-2756
Field Supervisor
U.S. Fish and Wildlife Service
4696 Overland Road, Room 576
Boise, Idaho 83705
Telephone: 208-334-1931
Fax: 208-334-9493
Field Supervisor
U.S. Fish and Wildlife Service
1201 Ironwood Drive
Coeur d' Alene, Idaho 83814
Telephone: 208-765-7261
Fax: 208-765-7307
Field Supervisor
U.S. Fish and Wildlife Service
4600 Kietzke Lane, Suite C-125
Reno, Nevada 89502-5093
Telephone: 702-784-5227
Fax: 702-784-5870
Field Supervisor
U.S. Fish and Wildlife Service
2600 S.E. 98th Avenue, Suite 100
Portland, Oregon 97266
Telephone: 503-231-6179
Fax: 503-231-6195
-------
Endangered Species Consultation Handbook—Novoater 1994
Field Supervisor
U.S. Fish and Wildlife Service
3704 Griffin Lane SE, Suite 102
Olympia, Washington 98501-2192
Telephone: 206-753-9440
Fax: 206-753-9008
-------
Endangered Species Consultation Hindmok--Moveaber 1994
Region 2: AZ, NM, OK, TX
Regional Director
U.S. Fish and Wildlife Service
500 Gold Avenue S.W.
P.O. Box 1306
Albuquerque, New Mexico 87103
Telephone: 505-766-2321
Fax: 505-766-2105
Field Supervisor
U.S. Fish and Wildlife Service
3616 West Thomas Road, Suite 6
Phoenix, Arizona 85019
Telephone: 602-379-4720
Fax: 602-379-6629
Field Supervisor
U.S. Fish and Wildlife Service
222 South Houston, Suite A
Tulsa, Oklahoma 74127-8909
Telephone: 918-581-7458
Fax: 918-581-7467
Field Supervisor
U.S. Fish and Wildlife Service
611 E. 6th Street, Suite 407
Austin, Texas 78701
Telephone: 512-482-5436
Fax: 512-482-5442
Field Supervisor
U.S. Fish and Wildlife Service
17629 El Camino Real, Suite 211
Houston, Texas 77058
Field Supervisor
U.S. Fish and Wildlife Service
3530 Pan Am Highway, NE, Suite D
Albuquerque, New Mexico 87107
Telephone: 505-883-7877
Fax: 505-883-7876
Field Supervisor
U.S. Fish and Wildlife Service
Stadium Centre Building
711 Stadium Drive East, Suite 252
Arlington, Texas 76011
Telephone: 817-885-7830
Fax: 817-885-7835
Field Supervisor
U.S. Fish and Wildlife Service
Corpus Christi State University
Room 118, Old Science Hall
6300 Ocean Drive, Campus Box 338
Corpus Christi, Texas 78412
Telephone: 512-994-9005
Fax: 512-994-8262
Telephone: 713-286-8282
Fax: 713-488-5882
-------
Endangered Species Contultjtion Handbook—Moveater 1994
Region 3: IA, IL, IN, HI, MN, MO, OH, UI
Regional Director
U.S. Fish and Wildlife Service
Federal Building
1 Federal Drive
Fort Snelling, Minnesota 55111-4056
Telephone: 612-725-3563
Fax: 612-725-3502
Field Supervisor
U.S. Fish and Wildlife Service
1000 Hart Road, Suite 180
Barrington, Illinois 60010
Telephone: 708-381-2253
Fax: 708-381-2285
Field Supervisor
U.S. Fish and Wildlife Service
718 North Walnut Street
302
Bloomington, Indiana 47404
5202
Telephone: 812-334-4261
Fax: 812-334-4273
Field Supervisor
U.S. Fish and Wildlife Service
4101 E. 80th Street
Bloomington, Minnesota 54425-1665
Telephone: 612-725-3548
Fax: 612-725-3609
Field Supervisor
U.S. Fish and Wildlife Service
6950-H Americana Parkway
Reynoldsburg, Ohio 43068
Telephone: 614-469-6923
Fax: 614-469-6919
Field Supervisor
U.S. Fish and Wildlife Service
4469 48th Avenue Court
Rock Island, Illinois 61201
Telephone: 309-793-5800
Fax: 309-793-5804
Field Supervisor
U.S. Fish and Wildlife Service
1405 South Harrison Road, Room
East Lansing, Michigan 48823-
Telephone: 517-337-6650
Fax: 517-337-5899
Field Supervisor
U.S. Fish and Wildlife Service
608 E. Cherry Street, Room 200
Columbia, Missouri 65201
Telephone: 314-876-1911
Fax: 314-876-1914
Field Supervisor
U.S. Fish and Wildlife Service
1015 Challenger Court
Green Bay, Wisconsin 54311-8331
Telephone: 414-433-3803
Fax: 414-433-3882
-------
Endangered Species Consultation Handbook.—Hiuwdwir 1994
Region 4: AL, FL, GA, kY, LA, MS, NC, PR, SC, GA
Regional Director
U.S. Fish and Wildlife Service
Richard B. Russell Federal Bldg.
75 Spring Street, SW, Suite 1276
Atlanta, Georgia 30303
Telephone: 404-679-7103
Fax: 404-730-2917
Field Supervisor
U.S. Fish and Wildlife Service
P.O. Drawer 1190
Highway 98, Daphne East Plaza
Daphne, Alabama 36526
Telephone: 205-441-5181
Fax: 205-441-6222
Field Supervisor
U.S. Fish and Wildlife Service
1360 U.S. Highway 1, Suite 5
Vero Beach, Florida 32960
Telephone: 407-562-3909
Fax: 407-562-4288
Field Supervisor
U.S. Fish and Wildlife Service
6620 Southpoint Dr., South
Suite 310
Jacksonville, Florida 32216
Telephone: 904-232-2580
Fax: 904-232-2404
Field Supervisor
U.S. Fish and Wildlife Service
801 Gloucester Street
Federal Building, Rm 334
Brunswick, Georgia 31520
Telephone: 912-265-9336
Fax: 912-265-1061
Field Supervisor
U.S. Fish and Wildlife Service
825 Kaliste Saloom
Brandywine II, Suite 102
Lafayette, Louisiana 70508
Telephone: 318-264-6630
Fax: 318-264-6663
Field Supervisor
U.S. Fish and Wildlife Service
551 -F Pylon Dr.
Raleigh, North Carolina 27606
Telephone: 919-856-4520
Fax: 919-856-4556
Field Supervisor
U.S. Fish and Wildlife Service
6578 Dogwood View Parkway, Suite A
Jackson, Mississippi 39213
Telephone: 601-965-4900
Fax: 601-965-4340
Field Supervisor
U.S. Fish and Wildlife Service
P.O. Box 491
Boqueron, Puerto Rico 00622
Telephone: 809-851-7297
Fax: 809-851-7440
-------
Endangered Species Consultation Handbook—November 1994
Field Supervisor
U.S. Fish and Wildlife Service
P.O. Box 12559, 217 Ft. Johnson
Charleston, South Carolina 29412
Telephone: 803-724-4707
(disconnected)
Field Supervisor
U.S. Fish and Wildlife Service
446 Neal Street
Cookeville, Tennessee 38501
Telephone: 615-528-6481
Fax: 615-528-7075
-------
Endangered Species Consul tat ton Handbook--Mov^er 1994
Region 5: CN, DE, MA, MD, HE, NH, NJ, NY, PA, RI, VA, VT, WV
Regional Director
U.S. Fish and Wildlife Service
300 Westgate Center Drive
Hadley, HA 01035-9589
Telephone: 413-253-8300
Fax: 413-253-8456
Assistant Field Supervisor
U.S. Fish and Wildlife Service
1033 South Main Street
Old Town, Maine 04468
Telephone: 207-827-5938
Fax: 207-827-6099
Field Supervisor
U.S. Fish and Wildlife Service
Ralph Pill Marketplace, 4th Floor
22 Bridge Street
Concord, New Hampshire 03301-4901
Telephone: 603-225-1411
Fax: 603-225-1467
Field Supervisor
U.S. Fish and Wildlife Service
3817 Luker Road
Cortland, New York 13045
Telephone: 607-753-9334
Fax: 607-753-9699
Field Supervisor
U.S. Fish and Wildlife Service
P.O. Box 480
Mid County Center
U.S. Route 17, Box 480
White Marsh, Virginia 23183
Field Supervisor
U.S. Fish and Wildlife Service
177 Admiral Cochrane Drive
Annapolis, Maryland 21401
Telephone: 410-269-5448
Fax: 410-269-0832
Field Supervisor
U.S. Fish and Wildlife Service
927 North Main St. Bldg. D-l
Pleasantville, New Jersey 08232
Telephone: 609-646-9310
Fax: 609-646-0352
Field Supervisor
U.S. Fish and Wildlife Service
315 South Allen St., Suite 322
State College, Pennsylvania 16801
Telephone: 814-234-4090
Fax: 814-234-0748
Field Supervisor
U.S. Fish and Wildlife Service
Rte. 250 South, El kins Shopping Plaza
P.O. Box 1278
Elklns, West Virginia 26241
Telephone: 804-693-6694
Fax: 804-693-9032
Telephone: 304-636-6586
Fax: 304-636-7824
-------
Endangered Species Consultation Handnofc—Ihuiadnii 1994
Region 6: CO, KS, MT, NE, NO, SD, UT, WY
(Street address)
(134 Union Blvd., 4th Floor)
(Lakewood, Colorado 80228)
Regional Director
U.S. Fish and Wildlife Service
P.O. Box 25486
Denver Federal Center
Denver, Colorado 80225
Telephone: 303-236-7920
Fax: 303-236-6958
State Supervisor
U.S. Fish and Wildlife Service
730 Simms Street, Suite 290
Golden, Colorado 80401-4720
Telephone: 303-231-5280
Fax: 303-231-5285
Field Supervisor
U.S. Fish and Wildlife Service
100 North Park, Suite 320
Helena, Montana 59601
Telephone: 406-449-5322
Fax: 406-449-5339
Field Supervisor
U.S. Fish and Wildlife Service
1500 Capital Avenue
Bismarck, North Dakota 58501-2096
Telephone: 701-250-4402
Fax: 701-250-4400
Field Supervisor
U.S. Fish and Wildlife Service
Lincoln Plaza, Suite 404
145 East 1300 South
Salt Lake City, Utah 84115
State Supervisor
U.S. Fish and Wildlife Service
315 Houston Street, Suite E
Manhattan, Kansas 66502-6172
Telephone: 913-539-3474
Fax: 913-539-8567
Field Supervisor
U.S. Fish and Wildlife Service
203 West Second Street
Grand Island, Nebraska 68801-5907
Telephone: 308-382-6468
Fax: 308-384-8835
State Supervisor
U.S. Fish and Wildlife Service
420 South Garfield Avenue, Suite 400
Pierre, South Dakota 57501-5408
Telephone: 605-224-8693
Fax: 605-224-9974
State Supervisor
U.S. Fish and Wildlife Service
4000 Morrie Avenue
Cheyenne, Wyoming 82001
Telephone: 801-524-5001
Fax: 801-524-5021
Telephone: 307-772-2374
Fax: 307-772-2358
-------
Endangered Specie* Consultation Hamftioafc—Hovafaer 1994
Region 7: AK
Regional Director
U.S. Fish and Wildlife Service
1011 East Tudor Road
Anchorage, Alaska 99503
Telephone: 907-786-3542
Fax: 907-786-3350
Field Supervisor
U.S. Fish and Wildlife Service
605 West 4th Avenue, Room G-62
Anchorage, Alaska 99501
Telephone: 907-271-2888
Fax: 907-271-2786
Field Supervisor
U.S. Fish and Wildlife Service
P.O. Box 21287
Juneau, Alaska 99802-1287
Field Supervisor
U.S. Fish and Wildlife Service
101 12th Avenue, Box 19, Rm 232
Fairbanks, Alaska 99701
Telephone: 907-456-0203
Fax: 907-456-0208
Telephone: 907-586-7240
Fax: 907-586-7154
-------
Endangered Species Consul tat tor Handbook—Move^er 1994
NATIONAL MARINE FISHERIES SERVICE
REGIONAL OFFICES
Northeast Region
National Marine Fisheries Service
One Blackburn Drive
Gloucester, Massachusetts 09130-2298
COMM: 508/281-9250
FAX: 508/281-9371
Connect (cut, Delaaara, District of CoLmbia,
Illinois, Indiana, Mains, Maryland, Httaadwuttt,
Michigan, Uimesota, tteu ao^ihirt, ttsw Jersey,
¦ew Tort, Ohio, Pennsylvania, (hods Island,
Virginia, Wisconsin.
Southeast Region
National Marine Fisheries Service
9450 Koger Boulevard, Room 206
St. Petersburg, Florida 33702
COMM: 813/893-3141
FAX: 813/893-3111
Southwest Region
National Marine Fisheries Service
SOI W. Ocean Boulevard, Suite 4200
Long Beach, California 90802-4213
COMM: 310^80-4001
FAX: 310^80-4018
Northwest Region
National Marine Fisheries Service
7600 Sand Point Way, N.E.
BINC15700 Building 1
Seattle, Washington 98115-0070
COMM: 206/526-6150
FAX: 206/526-6426
Alaska Region
National Marine Fisheries Service
Federal Building Annex. Suite 6
9109 Mendenhall Mall Road
Junea. Alaska 99802-1668
COMM: 907/586-7221
FAX: 907/586-7249
Alstons, Arkansas, Florida, Georgia, Ioms, Kansas,
Kentucky, Louisiana, Mississippi, Missouri,
Nebraska, Sou Maxico, north Carotins, Oklahoma,
Puerto ties. South Carolina, Tannassae, Tasas,
Virgin Isle
tesrican Sana, Arizona, California, Cum, Hausil,
Nevada, Trust Territories of the Pacific Isle
Colorado, Idaho, Montana, North Dakota, Oregon,
South Dakota, Utah, Washington, Wyoaing
Alaska
-------
APPENDIX H - EXEMPTION PROCESS
1. Who can initiate the exemption process
Following completion of formal consultation, the Federal agency, the
Governor of the State in which the action is proposed, or the permit or
license applicant may initiate the exemption process. A "permit or
license applicant" is defined by ESA as the person whose application to
a Federal agency for a permit or license has been denied primarily
because of the application of section 7(a) to that agency action.
Within the Department of the Interior, the exemption process is
administered by the Assistant Secretary for Policy, Management and
Budget, rather than the Service.
2. Prerequisites for consideration
In order to be accepted for consideration, an application must satisfy
the following conditions. The Federal agency and the applicant must
have:
- carried out the consultation responsibilities in good faith and
made a reasonable and responsible effort to develop and fairly
consider modifications or reasonable and prudent alternatives to
the proposed action;
- conducted any required biological assessment; and
- refrained from making any irreversible or irretrievable
commitment of resources during consultation.
3. Exemption process
An application for exemption is filed within 90 days of completion of
consultation (for Federal agencies) or within 90 days of completion of
the agency's final action on the permit or license (for non-Federal
applicants).
The Secretary of the Interior (or Commerce) conducts a threshold review
of the application to determine whether the prerequisites for
consideration have been met (20 days).
The appropriate Secretary then holds a formal hearing on the
application. The Secretary submits a report to the Committee within
140 days of the threshold determination, discussing:
-------
Endangered Species Consultation Handbook—Wovorter 1994
- the availability of reasonable and prudent alternatives, the
nature and extent of benefits of the agency action, and
alternative courses of action consistent with conservation of the
species or critical habitat;
- a summary of evidence concerning whether the agency action is in
the public interest and is of national or regional significance;
- appropriate reasonable mitigation and enhancement issues to be
considered by the Committee; and
- whether the agency and applicant refrained from making any
irreversible or irretrievable commitment of resources during
consultation.
The Committee makes its final determination within 30 days of receipt
of the report.
4. Potential outcomes
There is little administrative history reflecting the likely outcome of
the Committee's review. To date only three cases have completed the
entire review process:
- Tellico Dam posed jeopardy to the snail darter. The Committee
voted 7 to 0 not to grant an exemption. [An Appropriations Act
rider subsequently allowed the dam to be completed.]
- Grayrocks Dam on the Platte River posed jeopardy to the whooping
crane. An exemption was granted, but the Committee required that
the agency adopt the reasonable and prudent alternative that had
been determined in the biological opinion.
- BLM timber sales in Oregon posed jeopardy to the northern spotted
owl. An exemption was granted for 13 of 44 sales covered by the
application. The 13 exempted sales were subject to a mitigation
measure requiring BLM to implement the recovery plan for the owl
as expeditiously as possible. The remaining sales remain subject
to the reasonable and prudent alternatives provided in the
biological opinion. This Committee action was subject to
litigation on the basis of infringement of the Administrative
Procedure Act during the deliberations of the Committee. The
application was subsequently withdrawn.
Three other applications were withdrawn by the applicant prior to
Committee review.
-------
Endangered Species Consultation Handbook—Novofaer 1994
- Pittston (oil refinery in Maine) was enjoined from further action
on the proposal by related Court action and dropped their
application;
- an application filed relative to dredging in the Suwannee River
was withdrawn when it was determined that the contractor filing
the request did not represent the applicant involved: and
- a barge fleeting permit on the Ohio River was withdrawn by the
applicant prior to the public hearing.
The Committee must grant an exemption if the Secretary of Defense finds
it is necessary for reasons of national security, and the President
may grant an exemption to restore public facilities in declared natural
disaster areas under certain circumstances.
An exemption cannot be granted if the Secretary of State finds that
such an action would be a violation of an international treaty or other
obligation of the United States.
-------
ENDANGERED SPECIES
A Summary of the ESA and Implementation Activities
The following topics are covered in this document:
History and Evolution of the ESA
Administration of the ESA
Listing
Recovery
Page 1
Page 4
Page 4
Recovery Planning
Consultation
Recovery and CITES Permits
Incidental Take Permits
State Grant Programs
Page 8
Page 10
Page 13
Page 14
Page .17
Current Program Information
Page 18
I. HISTORY AND EVOLUTION OF THE ENDANGERED SPECIES ACT OF
1973r Including Its Relationship to CITES>
Congress passed the Endangered Species Preservation Act in 1966.
This law allowed listing of only native animal species as endangered
and provided limited means for the protection of species so listed.
The Departments of Interior, Agriculture, and Defense were to seek to
protect listed species, and insofar as consistent with their primary
purposes, preserve the habitats of such species. Land acquisition for
protection of endangered species was also authorized. The
Endangered Species Conservation Act of 1969 was passed to provide
additional protection to species in danger of "worldwide extinction".
Import of such species was prohibited, as was their subsequent sale
within the U.S. This Act called for an international ministerial meeting
to adopt a convention on the conservation of endangered species.
A1973 conference in Washington led to the signing of the Convention
on International Trade in Endangered Species of Wild Fauna and
Flora (CITES), which restricted international commerce in plant and
animal species believed to be actually or potentially harmed by trade.
Later that year, the Endangered Species Act of 1973 was passed,
which combined and considerably strengthened the provisions of its
predecessors, and broke some new ground.
Its principal provisions follow:
-------
U.S. and foreign species lists were combined, with
uniform provisions applied to both [section 4];
Categories of "endangered" and "threatened" were
defined [section 3];
Plants and all classes of invertebrates were eligible for
protection, as they are under CITES [section 3];
All Federal agencies were required to undertake
programs for the conservation of endangered and
threatened species, and were prohibited from authorizing,
funding, or carrying out any action that would jeopardize
a listed species or destroy or modify its "critical habitat"
[section 7];
Broad taking prohibitions were applied to all endangered
animal species, which could apply to threatened animals
by special regulation [section 9];
Matching Federal funds became available for States with
cooperative agreements [section 6];
Authority was provided to acquire land for listed animals
and for plants listed under CITES [section 5]; and
U.S. implementation of CITES was provided [section 8].
Significant amendments have been enacted in 1978,1982, and 1988,
while the overall framework of the 1973 Act has remained essentially
unchanged. The funding levels in the present Act were authorized
through Fiscal Year 19S2. Principal amendments are listed below:
1978:
Provisions were added to Section 7, allowing Federal
agencies to undertake an action that would jeopardize
listed species if the action were exempted by a
cabinet-level committee convened for this purpose;
Critical habitat was required to be designated
concurrently with the listing of a species, when prudent,
and economic and other impacts of designation were
required to be considered in deciding on boundaries
[section 4];
2
-------
The Secretaries of Interior and Agriculture (for the Forest
Service) were directed to develop a program for
conserving fish, wildlife and plants, including listed
species, and land acquisition authority was extended to
such species [section 5];
The definition of "species" with respect to "populations"
was restricted to vertebrates; otherwise, any species,
subspecies or variety of plant, or species or subspecies
of animal remained listable under the Act [section 3].
1982:
Determinations of the status of species were required to
be made solely on the basis of biological and trade
information, without any consideration of possible
economic or other effects [section 4];
A final rule to determine the status of a species was
required to follow within one year of its proposal unless
withdrawn for cause [section 4];
Provision was made for designation of experimental
populations of listed species that could be subject to
different treatment under section 4 , for critical habitat,
and section 7 [section 10]; and
A prohibition was inserted against removing listed plants
from land under Federal jurisdiction and reducing them to
possession [section 9].
1988:
Monitoring of candidate and recovered species was
required, with adoption of emergency listing when there
is evidence of significant risk [section 4].
Several amendments dealt with recovery matters: 1)
recovery plans will undergo public notice and review, and
affected Federal agencies must give consideration to
those comments; 2) section 4(g) requires five years of
monitoring of species that have recovered; and 3)
biennial reports are required on the development and
3
-------
implementation of recovery plans and on the status of all
species with plans.
A new section 18 requires a report of all reasonably
identifiable expenditures on a species-by-species basis be
made on the recovery of endangered or threatened
species by the States and the Federal government [see
last page].
Protection for endangered plants was extended to include
destruction on Federal land and other taking when it
violates State law [section 9],
II. ADMINISTRATION OF THE ESA
The Fish and Wildlife Service, in the Department of the Interior, and
the National Marine Fisheries Service, in the Department of
Commerce, share responsibility for administration of the Endangered
Species Act Generally, the National Marine Fisheries deals with those
species occurring in marine environments and anadromous fish, while
the Fish and Wildlife Service is responsible for terrestrial and
freshwater species and migratory birds. Additionally, the Animal and
Plant Health Inspection Service, in the Department of Agriculture,
oversees importation and exportation of listed terrestrial plants.
III. LISTING
Definitions
A species (see below) may be classified for protection as
"endangered" when it is in danger of extinction within the
foreseeable future throughout all or a significant portion of its
range. A "threatened" classification is provided to those animals
and plants likely to become endangered within the foreseeable
future throughout ail or a significant portion of their ranges,
[section 3]
A "species" includes any species or subspecies of fish, wildlife,
or plant; any variety of plant; and any distinct population
segment of any vertebrate species that interbreeds when
mature. Excluded is any species of the Class Insecta
4
-------
determined by the Secretary to constitute a pest whose
protection under the provisions of the Act would present an
overwhelming and overriding risk to man. [section 3]
How do species get listed?
As with most other Federal regulations, a species is proposed
for addition to the lists (50 CFR Part 17) in the Federal Register.
The public is offered an opportunity to comment, and the rule
is finalized (or withdrawn). Species are selected by the Service
for proposed rules from a list of candidates, which presently
numbers about 3600 U.S. species. To become a candidate, the
Service relies largely upon petitions, Service and other agencies'
surveys, and other substantiated reports on field studies. The
Act provides very specific procedures on how species are to be
placed on the list (e.g., listing criteria, public comment periods,
hearings, notifications, time limit for final action). These latter
requirements are found in the regulations at 50 CFR Part 424.
Selection from the list of candidates for a proposed rule is
based upon a priority system (September 23, 1983, Federal
Register).
Species may be active "candidates" from a number of sources.
The Service has its own biologists who are monitoring the status
of some species. Other agencies have similar staffs that can
report when a species seems to be at some risk to its continued
existence. Informal letters and various reports are also
submitted to the Service from the States and private groups and
individuals. There is also a formal petition process available
under the Act.
Petition process
Anyone may petition the Service to have a species listed or
reclassified as endangered or threatened, or removed from the
list. Findings are required before any proposal is published in
the Federal Register.
90-dav finding
Within 90 days of receiving a petition, the Service must
make a finding as to whether the petition presents
substantial information that the listing may be warranted.
5
-------
1-vear Finding
Within 1 year of receipt, a finding is required that the
listing is either warranted or not warranted.
A finding of warranted must lead directly to an immediate
(<30 days) proposed listing, or the Service can find that
such an immediate proposal is precluded by other listing
activities such that the proposal may not be made for
several additional weeks, months or even years. In order
to make this secondary finding of warranted but
precluded the Service must also be making expeditious
progress in its overall listing program (e.g., candidates of
higher priority are taken first).
Any warranted but precluded finding must be re-examined
on each successive anniversary of the petition's receipt
until the listing is either proposed or the petition is turned
down as not warranted.
Judicial review
Negative 90-day findings, not warranted findings, and
warranted but precluded 1-year findings are subject to
judicial review.
Selecting candidates for listing
In general, species to be listed in a given year are selected from
among those recognized as category 1 candidates (see below)
in accordance with the Service's listing priority system.
Under the priority system, species facing the greatest threat are
assigned highest priority, further criteria account for the
immediacy of the threat and the genetic distinctness of the
species as reflected by the taxonomic level at which it is
recognized.
Define categories 1, 2, and 3
The Service maintains a list of "candidates" from all the accepted
petitions and other sources. Species are assigned to one of
three categories:
6
-------
A candidate species is one that the Service is actively reviewing
for possible inclusion in the endangered or threatened lists --
Category 1 candidates are those for which the Service
has substantial information to support the proposal to list.
Category 2 candidates are those for which the Service
has information indicating the possible appropriateness of
listing, but for which further information is still needed in
order to decide whether to proceed to listing or not
Species no longer considered as active candidates are placed
in the last category in order to indicate their disposition -
Category 3 species are those that had been considered
(e.g., subject of previous notice in Federal Register for
listing but that are no longer considered candidates -
3A species are believed to be extinct on the basis of
persuasive evidence.
3B species are no longer considered to be taxa or
vertebrate populations fitting the Act's definition of
"species."
3C species have been found to be more abundant or
widespread than had been believed, or not to be subject
to threats that place the continued existence of the
species at risk.
Species on these lists can move from one to another as more
information becomes available. For example, species thought
to be extinct (C-3A) can, on occasion, be rediscovered after
many decades and immediately
move to the top (C-1), and vice versa. Typically, most species
enter the list as C-2 and move either up or down as more
information becomes available. This latter process may take
days, months, or years.
Criteria for listing
A species is only determined to be an endangered species or a
threatened species because of any one or more of the following
factors (economics or others not listed here are not permissible under
the Act):
7
-------
the present or threatened destruction, modification, or
curtailment of its habitat or range;
overutilization for commercial, recreational, scientific, or
educational purposes;
disease or predation;
the inadequacy of existing regulatory mechanisms; or
other natural or man-made factors affecting its continued
existence.
IV. RECOVERY
The ultimate purpose of the Act is to save species from extinction.
The Service's goal is to recover listed species and remove them from
the list This is accomplished through a variety of tools, including
recovery planning, consultation, and scientific and incidental take
permits.
RECOVERY PLANNING
Why is recovery difficult?
Even experts initially may have an incomplete understanding of
the cause of a species' decline, which makes it difficult to design
an effective plan for recovering the spscies. Research can
usually identify the problem, but this takes ume.
Once the causes of decline have been correctly identified, and
a recovery plan prepared, recovery may not begin fore years
because of social or economic obstacles that need to be
overcome, including lack of sufficient funding.
Once consensus is reached on necessary recovery tasks, the
unpredictable nature of ecological systems may produce
unanticipated recovery task results, and new or modified
approaches may be developed to achieve the intended result.
8
-------
Typically, species recovery is a gradual process, taking several
generations of successful reproduction to achieve before a
sufficient number of individuals are present to comprise one or
more viable (self-perpetuating) populations. This may take
years, or even decades in many cases, as it is often difficult to
reverse all the threats affecting the species for the past decades,
if not centuries.
Who prepares recovery plans?
Depending on the species, plans are either prepared by a panel
of recognized experts under the direction of a Service employee,
or they are contracted to an appropriate consultant on the
species. In either case, Regional Directors are responsible for
approving recovery plans for listed species occurring in their
Region.
When are they needed after listing?
Within 60 days of listing, the responsible Region prepare a
one-page outline of the major recovery actions needed for the
species. The recovery plan is usually begun soon after listing,
depending on the state of knowledge of the recovery needs of
the species, and available funds.
Do all species need a recovery plan?
Foreign species do not require recovery plans because the
United States Government has no means for implementation of
management options. Some domestic species do not have
recovery plans because their nesting habitat is unknown (e.g.,
Eskimo curlew), they are in such low numbers that they cannot
be found with regularity (ivory-billed woodpecker, Bachman's
warbler), or the management options are so limited or the
species has such a low priority that a plan is not justified at this
time.
What are recovery tasks within a recovery plan?
Recovery tasks are actions needed to reduce or resolve the
threats or limiting factors that contributed to the status of the
species. These tasks are designed to assist accomplishment of
recovery objectiveis.
9
-------
What is the priority system used for tasks?
Recovery tasks are assigned a priority number associated with
one of the three priority levels. They are tasks necessary to
prevent extinction (priority 1), avoid significant further decline
(priority 2), or other activities necessary to achieve recovery
(priority 3).
What provision is made for public review of recovery plans?
Guidance has been provided to the Regions on involving the
public in plan development, including direction to notify other
agencies of the need to consider public comments. Regions
publish notices in the Federal Register requesting public
comment on recovery plan drafts.
How will recovered species be monitored?
Monitoring recovered species has been incorporated under
State programs funded by section 6. The Service's Regions
compile annual reports of monitoring activities.
CONSULTATION
When and what form of consultation is appropriate?
All Federal agencies must consult with the appropriate Service
when any activity permitted, funded or conducted by that
agency may affect a listed species or designated critical habitat,
or is likely to jeopardize proposed species or adversely modify
proposed critical habitat
The Service conducts several types of consultations on Federal
agency activities, including informal, formal, early and
emergency consultations for listed species or designated critical
habitats, and informal and formal conferences for proposed
species or proposed critical habitats.
Informal consultations precede formal consultation and
may be conducted with the Federal agency, an applicant,
or a designated non-Federal representative. Discussions
during this phase may include whether and which species
may occur in the proposed action area, and what effect
the action may have on listed species or critical habitats.
10
-------
Informal consultation often conclude with the Service's
written concurrence with the Federal agency's
determination that its action is not likely to adversely
affect listed species or their critical habitat, i.e., an
exception to formal consultation.
Formal consultation is conducted when the Federal
agency determines its action may affect a listed species
or its critical habitat and submits a written request to
initiate formal consultation. These consultations follow
statuary and regulatory timeframes and procedures, and
result in a written biological opinion of whether the
proposed action is likely to result in jeopardy to a listed
species or adverse modification to designated critical
habitat An incidental take statement is also provided.
Early consultations are held before an application is
actually filed with a Federal agency in order to determine
at an early planning stage what effect a proposed action
may have on a species or critical habitat and what
modifications may be needed to remove or minimize
those effects.
Emergency consultations are held when an agency
must respond quickly to a natural disaster or other
calamity. These are followed up with a formal
consultation.
Conferences are conducted when it is determined that
a Federal action is likely to jeopardize the continued
existence of the proposed species or result in the
destruction or adverse modification of the proposed
critical habitat
During conference, the Service makes advisory
recommendations to the Federal agency on ways to
minimize or avoid adverse impacts.
If the proposed species or proposed critical habitat
becomes listed or designated, respectively, during the life
of a project that retains Federal involvement, the Federal
agency must then determine whether consultation is
required.
11
-------
How is jeopardy or adverse modification of critical habitat
determined?
In determining jeopardy, the Service must first look at the
environmental baseline, i.e., the present status of the species.
Added to the baseline is the direct, indirect, interrelated, and
interdependent effects of the Federal action undergoing
consultation. The final factor is cumulative effects, which are
those State and private actions reasonably certain to occur.
This analysis is then measured against the definition of jeopardy,
which is an action that reasonably would be expected, directly
or indirectly, to reduce appreciably 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.
What are reasonable and prudent alternatives?
These are alternative actions identified during formal
consultation that 1) can be implemented in a manner consistent
with the intended purpose of the action, 2) are consistent with
the scope of the Federal agency's legal authority and
jurisdiction, 3) are economically and technologically feasible, and
4) the Service believes would avoid jeopardy or adverse
modification to the listed species or critical habitat.
What is incidental take and how do is it determined?
Incidental take is a taking that results from the Federal action,
but is not the purpose of the otherwise lawful activity.
Through the analysis of the effects of the action on listed
species and critical habitat, the Service may recognize that
some individuals or a certain amount of habitat may be taken.
An incidental take Statement is provided with the biological
opinion, and 1) includes the amount (number) or extent (habitat)
of anticipated take, if any; 2) reasonable and prudent measures
to minimize the take; and 3) nondiscretionary terms and
conditions to implement the reasonable and prudent measures,
including the procedures used to handle or dispose of any
individuals of the species actually taken.
12
-------
What are the responsibility of action agency when they receive
a biological opinion?
Under section 7(a)(2) of the ESA, the Federal agency must
insure that any action it authorizes, funds, or carries out is not
likely to jeopardize the continued existence of a listed species or
result in the destruction or adverse modification of critical
habitat.
Following the issuance of a biological opinion, the Federal
agency determines whether and in what manner to proceed with
the action in light of its section 7 obligations and the Service's
biological opinion.
If a jeopardy biological opinion is issued, the Federal agency
shall notify the Service of its final decision on the action.
If, after consultation, the Federal agency cannot comply with the
requirements of section 7(a)(2), it may apply for an exemption
(50 CFR Part 451). Likewise, exemptions may be requested by
the Governor of the State affected or the applicant for a Federal
permit Exemptions are administered by the Assistant Secretary
for Policy, Budget, and Analysis.
RECOVERY AND CITES PERMITS
The Service has the responsibility of reviewing trading programs and
practices of States and other countries, and ensuring they are not
harming endangered, threatened and CITES-listed species. The
Service also regulates taking, commerce and import/export of these
species through a permitting program.
What is a CITES permit and where do I get one?
A CITES permit is required for import/export and commerce in
species listed on the Appendices to the Convention on
International Trade in Endangered Species. The application
requirements are complex and applicants (e.g., commercial
businesses, zoos, circuses, plant nurseries, sportsmen with
trophies, individual pet owners) frequently need specialized,
individualized assistance on understanding and interpreting
these requirements.
13
-------
If you have questions about whether you need a permit call toll
free 1-800-358-2104 or write the Office of Management
Authority, U.S. Fish and Wildlife Service, ARLSQ 420, 4401 N.
Fairfax Drive, Arlington, VA, 22203.
What is a recovery permit?
Recovery permits are issued under section 10(a)(1)(A) of the
ESA for scientific research and other activities benefitting the
recovery of U.S. listed species. Frequently these permits
authorize needed activities identified in a species' recovery plan.
For example, a permit is needed to examine the effect of grazing
on a prairie grassland plant, to study diseases of the desert
tortoise, or to capture and mark a species for a study of the
species's movements throughout a season or year. These
permits are available from the Service's Regional Offices.
Recovery and CITES Permit statistics for 1992. [Figures for 1993
were similar.]
CITES:
The Office of Management Authority (OMA) processed
about 3,600 permits, while the Service's Law Enforcement
Offices issued an additional 2,000 CITES permits at
designated ports of entry or Regional Offices.
OMA responded to about 4,000 general and special
interest inquires, and receives about 900 telephone calls
a week.
Recovery Permits:
Approximately 500 permits were issued for take or
interstate commerce of domestic species.
INCIDENTAL TAKE PERMITS
What is an incidental take permit?
Section 9 of the ESA prohibits take of federally listed animals
without appropriate authorization. Take is defined under the
ESA, in part, as "killing, harming, or harassment" of a federally
14
-------
listed species, while incidental take is' take that is "incidental to,
and not the purpose of, otherwise lawful activities."
In 1988, Congress passed amendments to section 10 to provide
a means for non-Federal projects resulting in take of listed
animals to be permitted subject to carefully prescribed
conditions. These "incidental take" permits also provide a
means to balance, or integrate, orderly economic development
with endangered species conservation, and for the public and
private sector to develop creative partnerships to accomplish
these goals.
What is required for an incidental take permit?
Application for an incidental take permit is subject to a number
of requirements, including preparation by the permit applicant
of a conservation plan-generally known as a "Habitat
Conservation Plan," or an "HCP." An HCP must specify:
Impacts likely to result from proposed taking of federally
listed species;
Measures the applicant will undertake to monitor,
- minimize, and mitigate such impacts; the funding that
will be made available to undertake such measures; and
the procedures to deal with unforeseen circumstances;
Alternative actions the applicant considered that would
not result in take, and the reasons why such alternatives
are not being utilized; and
Additional measures the Service may require as
necessary or appropriate for the purposes of the
conservation plan, such as an Implementing Agreement
that spells out the roles and responsibilities of all parties.
How are HCPs developed?
Development of an HCP and application for an incidental take
permit are voluntary; however, in the absence of appropriate
authorization, no take can lawfully occur.
In scope, HCPs can cover an area as small as a few acres or
as large as hundreds of thousands of acres; for purposes of
processing permit applications, the Service recognizes three
15
-------
types: "large-scale" or "regional" HCPs, "medium-scale" HCPs,
and "small-scale" HCPs.
Steering Committees are often established to facilitate regional
HCP planning efforts. Typically, Steering Committees are made
up of representatives from Federal, State, and local government
agencies, affected private interests, and environmental groups;
the function of Steering Committees is to define the issues,
negotiate the HCP, and generally oversee the HCP process.
HCPs are funded in a variety of ways. For small-scale HCPs
funding is typically provided solely by the applicant For
regional planning efforts funding may be provided through a
variety of mechanisms, including fees assessed against
development activities occurring in the HCP area.
The Service encourages permit applicants to address unlisted
species in HCPs. The advantages of this are two-fold: a) the
HCP results in an ecosystem-based approach to conservation
planning, may protect candidate species prior to listing, and
may preclude the need to list them; and b) it can simplify the
permit amendment process should an unlisted species that
occurs in the HCP area be listed subsequent to issuance of the
permit.
How are section 10 permits processed?
In processing an incidental take permit application, the Service
must comply with appropriate environmental laws, including the
National Environmental Policy Act (NEPA) and the ESA.
Typically, the NEPA document is either an Environmental
Assessment or an Environmental Impact Statement. Review of
the application under section 7 of the ESA is required to ensure
that permit issuance is not likely to jeopardize listed species.
The ESA also requires a Federal Register publication of the
application's receipt with a 30-day public comment period.
Section 10 issuance criteria require the Service to issue an
incidental take permit if, after opportunity for public comment, it
finds that:
the taking will be incidental;
the applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of the taking;
16
-------
the applicant will ensure that adequate funding and
means to deal with unforeseen circumstances will be
provided;
the taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild; and
{he applicant will ensure that other measures that the
FWS may require as being necessary or appropriate will
be provided;
STATE GRANT PROGRAMS
How does a State get grants under the ESA?
Funding may be provided to State agencies through the
Cooperative Endangered Species Conservation Fund [section
6]. "States" include the District of Columbia, and the
Commonwealths and Territories of the U.S. Following passage
of State legislation to enable one or more State agencies to
conduct conservation activities for listed and candidate plants
and animals, the Service enters into agreements with those
State agencies. Thirty eight States and Puerto Rico have both
plant and animal agreements, while 12 States and 2 Territories
have only agreements for animals.
What do the States do with these grants?
Section 6 grants provide States with the resources to participate
in a wide array of recovery activities ranging from population
assessment and habitat restoration, to propagation and
reintroduction of listed species. States may use section 6 grants
to initiate conservation actions before a species is listed.
Stabilization of candidate species and their habitat can often be
accomplished in a more cost effective manner than through the
process of listing, recovery planning and implementation. These
grants also can be used to monitor the status of recovered
species.
17
-------
Gnthe Web
To assist
possible,
Internet
an audience as
tems on the
include:
List
Iistkof Animal
and to
tlKf
placed
published;
urisdiction
by State
s)Cct
Congress;
listed,
or territory.
Species Maps that indicate the numb
candidate, and Category 1 species by
le Fish ano\^ildlife Service World Wide Web
le Internet E-mail
/
ttp://www.fws.gov/
gov
Page address is:
When using Internet E-mail, type {Send ES lostra&ms} on the
Subject line to receive a likt of the retrieval cotmnaxxds for the
available information. \ ^ C_/
Division of Endangered Species
February 1995
-------
ENDANGERED SPECIES ACT OF 1973
As Amended through the
100th Congress
U.S. Fish and Wildlife Service
U.S. Department of the Interior
Washington, D.C. 20240
19SS
TABLE OF CONTENTS
Page
Sec. 2. Findings, purposes, and policy 1
Sec. 3. Definitions 2
Sec. 4 Determination of endangered species and threatened species 4
Sec. 5. Land acquisition 11
Sec. 6. Cooperation with the States 12
Sec. 7. Interagency cooperation 16
Sec. 8. International cooperation 25
Sec. 8A. Convention implementation 26
Sec. 9. Prohibited acts 27
Sec. 10. Exceptions 31
Sec. 11. Penalties and enforcement 38
Sec. 12. Endangered plants 43
Sec. 13. Conforming amendments 43
Sec. 14. Repealer 44
Sec. 15. Authorization of appropriations 45
Sec. 16. Effective date 45
Sec. 17. Marine Mammal Protection Act of 1972 45
Sec. 18. Annual cost analysis by the Fish and Wildlife Service 45
-------
ENDANGERED SPECIES ACT OF 1973*
FINDINGS, PURPOSES, AND POLICY
Sec. 2. (a) Findings.—The Congress finds and declares that—
(1) various species of fish, wildlife, and plants in the United
States have been rendered extinct as a consequence of econom-
ic growth and development untempered by adequate concern
and conservation;
(2) other species of fish, wildlife, and plants have been so de-
pleted in numbers that they are in danger of or threatened
with extinction;
(3) these species of fish, wildlife, and plants are of esthetic,
ecological, educational, historical, recreational, and scientific
value to the Nation and its people;
(4) the United States has pledged itself as a sovereign state
in the international community to conserve to the extent prac-
ticable the various species of fish or wildlife and plants facing
extinction, pursuant to—
(A) migratory bird treaties with Canada and Mexico;
(B) the Migratory and Endangered Bird Treaty with
Japan;
(C) the Convention on Nature Protection and Wildlife
Preservation in the Western Hemisphere;
(D) the International Convention for the Northwest At-
lantic Fisheries;
(E) the International Convention for the High Seas Fish-
eries of the North Pacific Ocean;
(F) the Convention on International Trade in Endan-
gered Species of Wild Fauna and Flora; and
(G) other international agreements; and
(5) encouraging the States and other interested parties,
through Federal financial assistance and a system of incen-
tives, to develop and maintain conservation programs which
meet national and international standards is a key to meeting
the Nation's international commitments and to better safe-
guarding, for the benefit of all citizens, the Nation's heritage
in fish, wildlife, and plants.
(b) Purposes.—The purposes of this Act are to provide a means
whereby the ecosystems upon which endangered species and
threatened species depend, may be conserved, to provide a program
for the conservation of such endangered species and threatened
species, and to take such steps as may be appropriate to achieve
*As amended bv P L 94-325, June 110, 197fi. P L 94-:l59, July 12. 197P»; P L. 95-212, December
19, 1977; PL 95-632. November 10. 1978; PL 96-159. December 28, 1979; PL. 97-.104, Uciober
13, 1982; P L 98-327, June 25, 1984; and P L 100-478. October 7, 1988
(1)
-------
9
the purposes of the treaties and conventions set forth in subsection
(a) of this section.
(c) Policy.—(1) It is further declared to be the policy of Congress
that all Federal departments and agencies shall seek to conserve
endangered species and threatened species and shall utilize their
authorities in furtherance of the purposes of this Act.
(2) It is further declared to be the policy of Congress that Federal
agencies shall cooperate with State and local agencies to resolve
water resource issues in concert with conservation of endangered
species.
DEFINITIONS
Sec. 3. For the purposes of this Act—
(1) The term "alternative courses of action" means all alterna-
tives and thus is not limited to original project objectives and
agency jurisdiction.
(2) The term "commercial activity" means all activities of indus-
try and trade, including, but not limited to, the buying or selling of
commodities and activities conducted for the purpose of facilitating
such buying and selling: Provided, however, That it does not in-
clude exhibitions of commodities by museums or similar cultural or
historical organizations.
(3) The terms "conserve," "conserving," and "conservation"
mean to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to
the point at which the measures provided pursuant to this Act are
no longer necessary. Such methods and procedures include, but are
not limited to, all activities associated with scientific resources
management such as research, census, law enforcement, habitat ac-
quisition and maintenance, propagation, live trapping, and trans-
plantation, and, in the extraordinary case where population pres-
sures within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
(4) The term "Convention" means the Convention on Internation-
al Trade in Endangered Species of Wild Fauna and Flora, signed
on March 3, 1973, and the appendices thereto.
(5)(A) The term "critical habitat" for a threatened or endangered
species means—
(i) the specific areas within the geographical area occupied
by the species, at the time it is listed in accordance with the
provisions of section 4 of this Act, on which are found those
physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical area occupied by
the species at the time it is listed in accordance with the provi-
sions of section 4 of this Act, upon a determination by the Sec-
retary that such areas are essential for the conservation of the
species.
(B) Critical habitat may be established for those species _ now
listed as threatened or endangered species for which _ no critical
habitat has heretofore been established as set forth in subpara-
graph (A) of this paragraph.
3
(C) Except in those circumstances determined by the Secretary,
critical habitat shall not include the entire geographical area
which can be occupied by the threatened or endangered species.
(6) The term "endangered species" means any species which is in
danger of extinction throughout all or a significant portion of its
range other than a species of the Class Insecta determined by the
Secretary to constitute a pest whose protection under the provi-
sions of this Act would present an overwhelming and overriding
risk to man.
(7) The term "Federal agency" means any department, agency,
or instrumentality of the United States.
(8) The term "fish or wildlife" means any member of the animal
kingdom, including without limitation any mammal, fish, bird (in-
cluding any migratory, nonmigratory, or endangered bird for which
protection is also afforded by treaty or other international agree-
ment), amphibian, reptile, mollusk, crustacean, arthropod or other
invertebrate, and includes any part, product, egg, or offspring
thereof, or the dead body or parts thereof.
(9) The term "foreign commerce" includes, among other things,
any transaction—
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a person
in a foreign country; or
(D) between persons within the United States, where the fish
and wildlife in question are moving in any country or coun-
tries outside the United States.
(10) The term "import" means to land on, bring into, or intro-
duce into, or attempt to land on, bring into, or introduce into, any
place subject to the jurisdiction of the United States, whether or
not such landing, bringing, or introduction constitutes an importa-
tion within the meaning of the customs laws of the United States.
(11) The term "permit or license applicant" means, when used
with respect to an action of a Federal agency for which exemption
is sought under section 7, any person whose application to such
agency for a permit or license has been denied primarily because of
the application of section 7(a) to such agency action.
(12) "The term person means an individual, corporation, partner-
ship, trust, association, or any other private entity; or any officer,
employee, agent, department, or instrumentality of the Federal
Government, of any State, municipality, or political subdivision of
a State, or of any foreign government; any State, muncipality, or
political subdivision of a State; or any other entity subject to the
jurisdiction of the United States."
(13) The term "plant" means any member of the plant kingdom,
including seeds, roots and other parts thereof.
(14) The term "Secretary" means, except as otherwise herein pro-
vided, the Secretary of the Interior or the Secretary of Commerce
as program responsibilities are vested pursuant to the provisions of
Reorganization Plan Numbered 4 of 1970; except that with respect
to the enforcement of the provisions of this Act and the Convention
which pertain to the importation or exportation of terrestrial
plants, the term also means the Secretary of Agriculture.
-------
4
(15) The term "species" includes any subspecies of Fish or wildlife
or plants, and any distinct population segment of any species or
vertebrate fish or wildlife which interbreeds when mature.
(16) The term "State" means any of the several States, the Dis-
trict of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and the Trust Territory of the
Pacific Islands.
(17) The term "State agency" means any State agency, depart-
ment, board, commission, or other governmental entity which is re-
sponsible for the management and conservation of fish, plant, or
wildlife resources within a State.
(18) The term "take" means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct.
(19) The term "threatened species" means any species which is
likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range.
(20) The term "United States," when used in a geographical con-
text, includes all States.
determination of endangered species and threatened species
Sec. 4. (a) General.—(1) The Secretary shall by regulation pro-
mulgated in accordance with subsection (b) determine whether any
species is an endangered species or a threatened species because of
any of the following factors:
(A) the present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or
educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
(E) other natural or manmade factors affecting its continued
existence.
(2) With respect to any species over which program responsibil-
ities have been vested in the Secretary of Commerce pursuant to
Reorganization Plan Numbered 4 of 1970—
(A) in any case in which the Secretary of Commerce deter-
mines that such species should—
(i) be listed as an endangered species or a threatened
species, or
(ii) be changed in status from a threatened species to an
endangered species, he shall so inform the Secretary of the
Interior, who shall list such species in accordance with this
section;
(B) in any case in which the Secretary of Commerce deter-
mines that such species should—
(i) be removed from any list published pursuant to sub-
section (c) of this section, or
(ii) be changed in status from an endangered species to a
threatened species, he shall recommend such action to the
Secretary of the Interior, and the Secretary of the Interior,
if he concurs in the recommendation, shall implement
si*'1 action; and
5
(C) the Secretary of the Interior may not list or remove from
any list any such species, and may not change the status of
any such species which are listed, without a prior favorable de-
termination made pursuant to this section by the Secretary of
Commerce.
(3) The Secretary, by regulation promulgated in accordance with
subsection (b) and to the maximum extent prudent and determina-
ble—
(A) shall, concurrently with making a determination under
paragraph (1) that a species is an endangered species or a
threatened species, designate any habitat of such species which
is then considered to be critical habitat; and
(B) may, from time-to-time thereafter as appropriate, revise
such designation.
(b) Basis for Determinations.—(1)(A) The Secretary shall make
determinations required by subsection (a)(1) solely on the basis of
the best scientific and commercial data available to him after con-
ducting a review of the status of the species and after taking into
account those efforts, if any, being made by any State or foreign
nation, or any political subdivision of a State or foreign nation, to
protect such species, whether by predator control, protection of
habitat and food supply, or other conservation practices, within
any area under its jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give consider-
ation to species which have been—
(i) designated as requiring protection from unrestricted com-
merce by any foreign nation, or pursuant to any international
agreement; or
(ii) identified as in danger of extinction, or likely to become
so within the foreseeable future, by any State agency or by any
agency of a foreign nation that is responsible for the conserva-
tion of fish or wildlife or plants.
(2) The Secretary shall designate critical habitat, and make revi-
sions thereto, under subsection (a)(3) on the basis of the best scien-
tific data available and after taking into consideration the econom-
ic impact, and any other relevant impact, of specifying any particu-
lar area as critical habitat. The Secretary may exclude any area
from critical habitat if he determines that the benefits of such ex-
clusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
and commercial data available, that the failure to designate such
area as critical habitat will result in the extinction of the species
concerned.
(3)(A) To the maximum extent practicable, within 90 days after
receiving the petition of an interested person under section 553(e)
of title 5, United States Code, to add a species to, or to remove a
species from, either of the lists published under subsection (c), the
Secretary shall make a finding as to whether the petition presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. If such a petition is found to
present such information, the Secretary shall promptly commence
a review of the status of the species concerned. The Secretary shall
promptly publish each finding made under this subparagraph in
the Federal Register.
-------
6
(B) Within 12 months after receiving a petition that is found
under subparagraph (A) to present substantial information indicat-
ing that the petitioned action may be warranted, the Secretary
shall make one of the following findings:
(i) The petitioned action is not warranted, in which case the
Secretary shall promptly publish such finding in the Federal
Register.
(ii) The petitioned action is warranted in which case the Sec-
retary shall promptly publish in the Federal Register a general
notice and the complete text of a proposed regulation to imple-
ment such action in accordance with paragraph (5).
(iii) The petitioned action is warranted but that—
(I) the immediate proposal and timely promulgation of a
final regulation implementing the petitioned action in ac-
cordance with paragraphs (5) and (6) is precluded by pend-
ing proposals to determine whether any species is an en-
dangered species or a threatened species, and
(II) expeditious progress is being made to add qualified
species to either of the lists published under subsection (c)
and to remove from such lists species for which the protec-
tions of the Act are no longer necessary.
in which case the Secretary shall promptly publish such find-
ing in the Federal Register, together with a description and
evaluaton of the reasons and data on which the finding is
based.
(C)(i) A petition with respect to which a finding is made under
subparagraph (BXiii) shall be treated as a petition that is resubmit-
ted to the Secretary under subparagraph (A) on the date of such
finding and that presents substantial scientific or commerical infor-
mation that the petitioned action may be warranted.
(ii) Any negative finding described in subparagraph (A) and any
finding described in subparagraph (B) (i) or (iii) shall be subject to
judicial review.
(iii) The Secretary shall implement a system to monitor effective-
ly the status of all species with respect to which a finding is made
under subparagraph (BXiii) and shall make prompt use of the au-
thority under paragraph 7 to prevent a significant risk to the well
being of any such species.
(D)(i) To the maximum extent practicable, within 90 days after
receiving the petition of an interested person under section 553(e)
of title 5, United States Code, to revise a critical habitat designa-
tion, the Secretary shall make a finding as to whether the petition
presents substantial scientific information indicating that the revi-
sion may be warranted. The Secretary shall promptly publish such
finding in the Federal Register.
(ii) Within 12 months after receiving a petition that is found
under clause (i) to present substantial information indicating that
the requested revision may be warranted, the Secretary shall deter-
mine how he intends to proceed with the requested revision, and
shall promptly publish notice of such intention in the Federal Reg-
ister.
(4) Except as provided in paragraphs (5) and (6) of this subsection,
the provisions of section 553 of title 5, United States Code (relating
7
to rulemaking procedures), shall apply to any regulation promul-
gated to carry out the purposes of this Act.
(5) With respect to any regulation proposed by the Secretary to
implement a determination, designation, or revision referred to in
subsection (a) (1) or (3), the Secretary shall—
(A) not less than 90 days before the effective date of the reg-
ulation—
(i) publish a general notice and the complete text of the
proposed regulation in the Federal Register, and
(ii) give actual notice of the proposed regulation (includ-
ing the complete text of the regulation) to the State
agency in each State in which the species is believed to
occur, and to each county or equivalent jurisdiction in
which the species is believed to occur, and invite the com-
ment of such agency, and each such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the Secre-
tary of State, give notice of the proposed regulation to each for-
eign nation in which the species is believed to occur or whose
citizens harvest the species on the high seas, and invite the
comment of such nation thereon;
(C) give notice of the proposed regulation to such profession-
al scientific organizations as he deems appropriate;
(D) publish a summary of the proposed regulation in a news-
paper of general circulation in each area of the United States
in which the species is believed to occur; and
(E) promptly hold one public hearing on the proposed regula-
tion it any person files a request for such a hearing within 45
days after the date of publication of general notice.
(6)(A) Within the one-year period beginning on the date on which
general notice is published in accordance with paragraph (5)(A)(i)
regarding a proposed regulation, the Secretary shall publish in the
Federal Register—
(i) if a determination as to whether a species is an endan-
gered species or a threatened species, or a revision of critical
habitat, is involved, either—
(I) a final regulation to implement such determination,
(II) a final regulation to implement such revision or a
finding that such revision should not be made,
(III) notice that such one-year period is being extended
under subparagraph (B)(i), or
(IV) notice that the proposed regulation is being with-
drawn under subparagraph (BXii), together with the find-
ing on which such withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of critical
habitat is involved, either—
(I) a final regulation to implement such designation, or
(II) notice that .such one-year period is being extended
under such subparagraph.
(B)(i) If the Secretary finds with respect to a proposed regulation
referred to in subparagraph (A)(i) that there is substantial disagree-
ment regarding the sufficiency or accuracy of the available data
relevant to the determination or revision concerned the Secretary
may extend the one-year period specified in subparagraph (A) for
not more than six months for purposes of soliciting additional data.
-------
8
(ii) If a proposed regulation referred to in subparagraph (aXi) is
not promulgated as a final regulation within such one-year period
(or longer period if extension under clause (i) applies) because the
Secretary finds that there is not sufficient evidence to justify the
action proposed by the regulation the Secretary shall immediately
withdraw the regulation. The finding on which a withdrawal is
based shall be subject to judicial review. The Secretary may not
propose a regulation that has previously been withdrawn under
this clause unless he determines that sufficient new information is
available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is ex-
tended under clause (i) with respect to a proposed regulation, then
before the close of such extended period the Secretary shall publish
in the Federal Register either a final regulation to implement the
determination or revision concerned, a finding that the revision
should not be made, or a notice of withdrawal of the regulation
under clause (ii), together with the finding on which the withdraw-
al is based.
(C) A final regulation designating critical habitat of an endan-
gered species or a threatened species shall be published concurrent-
ly with the final regulation implementing the determination that
such species is endangered or threatened, unless the Secretary
deems that—
(i) it is essential to the conservation of such species that the
regulation implementing such determination be promptly pub-
lished; or
(ii) critical habitat of such species is not then determinable,
in which case the Secretary, with respect to the proposed regu-
lation to designate such habitat, may extend the one-year
period specified in subparagraph (A) by not more than one ad-
ditional year, but not later than the close of such additional
year the Secretary must publish a final regulation, based on
such data as may be available at that time, designating, to the
maximum extent prudent, such habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor section
553 of title 5, United States Code, shall apply to any regulation
issued by the Secretary in regard to any emergency posing a signif-
icant risk to the well-being of any species of fish and wildlife or
plants, but only if—
(A) at the time of publication of the regulation in the Feder-
al Register the Secretary publishes therein detailed reasons
why such regulation is necessary; and
(B) in the case such regulation applies to resident species of
fish or wildlife, or plants, the Secretary gives actual notice of
such regulation to the State agency in each State in which
such species is believed to occur.
Such regulation shall, at the discretion of the Secretary, take effect
immediately upon the publication of the regulation in the Federal
Register. Any regulation promulgated under the authority of this
paragraph shall cease to have force and effect at the close of the
240-day period following the date of publication unless, during such
240-day period, the rulemaking procedures which would apply to
such regulation without regard to this paragraph are complied
with. If at any time after issuing an emergency regulation the Sec-
9
retary determines, on the basis of the best appropriate data avail-
able to him, that substantial evidence does not exist to warrant
such regulation, he shall withdraw it.
(8) The publication in the Federal Register of any proposed or
final regulation which is necessary or appropriate to carry out the
purposes of this Act shall include a summary by the Secretary of
the data on which such regulation is based and shall show the rela-
tionship of such data to such regulation; and if such regulation des-
ignates or revises critical habitat, such summary shall, to the maxi-
mum extent practicable, also include a brief description and eval-
uation of those activities (whether public or private) which, in the
opinion of the Secretary, if undertaken may adversely modify such
habitat, or may be affected by such designation.
(c) Lists.—(1) The Secretary of the Interior shall publish in the
Federal Register a list of all species determined by him or the Sec-
retary of Commerce to be endangered species and a list of all spe-
cies determined by him or the Secretary of Commerce to be threat-
ened species. Each list shall refer to the species contained therein
by scientific and common name or names, if any, specify with re-
spect to such species over what portion of its range it is endangered
or threatened, and specify any critical habitat within such range.
The Secretary shall from time to time revise each list published
under the authority of this subsection to reflect recent determina-
tions, designations, and revisions made in accordance with subsec-
tions (a) and (b).
(2) The Secretary shall—
(A) conduct, at least once every five years, a review-of all
species included in a list which is published pursuant to para-
graph (1) and which is in effect at the time of such review; and
(B) determine on the basis of such review whether any such
species should—
(i) be removed from such list;
(ii) be changed in status from an endangered species to a
threatened species; or
(iii) be changed in status from a threatened species to an
endangered species.
Each determination under subparagraph (B) shall be made in ac-
cordance with the provisions of subsection (a) and (b).
(d) Protective Regulations.—Whenever any species is listed as
a threatened species pursuant to subsection (c) of this section, the
Secretary shall issue such regulations as he deems necessary and
advisable to provide for the conservation of such species. The Secre-
tary may by regulation prohibit with respect to any threatened
species any act prohibited under section 9(a)(1), in the case of fish
or wildlife, or section 9(a)(2), in the case of plants, with respect to
endangered species; except that with respect to the taking of resi-
dent species of fish or wildlife, such regulations shall apply in any
State which has entered into a cooperative agreement pursuant to
section 6(c) of this Act only to the extent that such regulations
have also been adopted by such State.
(e) Similarity of Appearance Cases.—The Secretary may, by
regulation of commerce or taking, and to the extent he deems ad-
visable, treat any species as an endangered species o* ' -eatened
-------
10
species even though it is not listed pursuant to section 4 of this Act
if he finds that—
(A) such species so closely resembles in appearance, at the
point in question, a species which has been listed pursuant to
such section that enforcement personnel would have substan-
tial difficulty in attempting to differentiate between the listed
and unlisted species;
(B) the effect of this substantial difficulty is an additional
threat to an endangered or threatened species; and
(C) such treatment of an unlisted species will substantially
facilitate the enforcement and further the policy of this Act.
(0(1) Recovery Plans.—The Secretary shall develop and imple-
ment plans (hereinafter in this subsection referred to as 'recovery
plans') for the conservation and survival of endangered species and
threatened species listed pursuant to this section, unless he finds
that such a plan will not promote the conservation of the species.
The Secretary, in development and implementing recovery plans,
shall, to the maximum extent practicable—
(A) give priority to those endangered species or threatened
species, without regard to taxonomic classification, that are
most likely to benefit from such plans, particularly those spe-
cies that are, or may be, in conflict with construction or other
development projects or other forms of economic activity;
(B) incorporate in each plan—
(i) a description of such site-specific management actions
as may be necessary to achieve the plan's goal for the con-
servation and survival of the species;
(ii) objective, measurable criteria which, when met,
would result in a determination, in accordance with the
provisions of this section, that the species be removed from
the list; and
(iii) estimates of the time required and the cost to carry
out those measures needed to achieve the plan's goal and
to achieve intermediate steps toward that goal.
(2) The Secretary, in developing and implementing recovery
plans, may procure the services of appropriate public and private
agencies and institutions, and other qualified persons. Recovery
teams appointed pursuant to this subsection shall not be subject to
the Federal Advisory Committee Act.
(3) The Secretary shall report every two years to the Committee
on Environment and Public Works of the Senate and the Commit-
tee on Merchant Marine and Fisheries of the House of Representa-
tives on the status of efforts to develop and implement recovery
plans for all species listed pursuant to this section and on the
status of all species for which such plans have been developed.
(4) The Secretary shall, prior to final approval of a new or re-
vised recovery plan, provide public notice and an opportunity for
public review and comment on such plan. The Secretary shall con-
sider all information presented during the public comment period
prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a new
or revised recovery plan, consider all information presented during
the public comment period under paragraph (4).
11
(g) Monitoring.—(1) The Secretary shall implement a system in
cooperation with the States to monitor effectively for not less than
five years the status of all species which have recovered to the
point at which the measures provided pursuant to this Act are no
longer necessary and which, in accordance with the provisions of
this section, have been removed from either of the lists published
under subsection (c).
(2) The Secretary shall make prompt use of the authority under
paragraph 7 of subsection (b) of this section to prevent a significant
risk to the well being of any such recovered species.
(h) Agency Guidelines.—The Secretary shall establish, and pub-
lish in the Federal Register, agency guidelines to insure that the
purposes of this section are achieved efficiently and effectively.
Such guidelines shall include, but are not limited to—
(1) procedures for recording the receipt and the disposition of
petitions submitted under subsection (b)(3) of this section;
(2) criteria for making the findings required under such sub-
section with respect to petitions;
(3) a ranking system to assist in the identification of species
that should receive priority review under subsection (a)(1) of
the section; and
(4) a system for developing and implementing, on a priority
basis, recovery plans under subsection (f) of this section. The
Secretary shall provide to the public notice of, and opportunity
to submit written comments on, any guideline (including any
amendment thereto) proposed to be established under this sub-
section.
(i) If, in the case of any regulation proposed by the Secretary
under the authority of this section, a State agency to which notice
thereof was given in accordance with subsection (b)(5)(A)(ii) files
comments disagreeing with all or part of the proposed regulation,
and the Secretary issues a final regulation which is in conflict with
such comments, or if the Secretary fails to adopt a regulation pur-
suant to an action petitioned by a State agency under subsection
(bX3), the Secretary shall submit to the State agency a written jus-
tification for his failure to adopt regulations consistent with the
agency's comments or petition.
LAND ACQUISITION
Sec. 5. (a) Program.—The Secretary, and the Secretary of Agricul-
ture with respect to the National Forest System, shall establish
and implement a program to conserve fish, wildlife, and plants, in-
cluding those which are listed as endangered species or threatened
species pursuant to section 4 of this Act. To carry out such a pro-
gram, the appropriate Secretary—
(1) shall utilize the land acquisition and other authority
under the Fish and Wildlife Act of 1956, as amended, the Fish
and Wildlife Coordination Act, as amended, and the Migratory
Bird Conservation Act, as appropriate; and
(2) is authorized to acquire by purchase, donation, or other-
wise, lands, waters, or interest therein, and such authority
shall be in addition to any other land acquisition vested in
him.
-------
12
(b) Acquisitions.—Funds made available pursuant to the Land
and Water Conservation Fund Act of 1965, as amended, may be
used for the purpose of acquiring lands, waters, or interests therein
under subsection (a) of this section.
COOPERATION WITH THE STATES
Sec. 6. (a) General.—In carrying out the program authorized by
this Act, the Secretary shall cooperate to the maximum extent
practicable with the States. Such cooperation shall include consul-
tation with the States concerned before acquiring any land or
water, or interest therein, for the purpose of conserving any endan-
gered species or threatened species.
(b) Management Agreements.—The Secretary may enter into
agreements with any State for the administration and manage-
ment of any area established for the conservation of endangered
species or threatened species. Any revenues derived from the ad-
ministration of such areas under these agreements shall be subject
to the provisions of section 401 of the Act of June 15, 1935 (49 Stat.
383; 16 U.S.C. 715s).
(c)(1) Cooperative Agreements.—In furtherance of the purposes
of this Act, the Secretary is authorized to enter into a cooperative
agreement in accordance with this section with any State which es-
tablishes and maintains an adequate and active program for the
conservation of endangered species and threatened species. Within
one hundred and twenty days after the Secretary receives a certi-
fied copy of such a proposed State program, he shall make a deter-
mination whether such program is in accordance with this Act.
Unless he determines, pursuant to this paragraph, that the State
program is not in accordance with this Act, he shall enter into a
cooperative agreement with the State for the purpose of assisting
in implementation of the State program. In order for a State pro-
gram to be deemed an adequate and active program for the conser-
vation of endangered species and threatened species, the Secretary
must find, and annually thereafter reconfirm such finding, that
under the State program—
(A) authority resides in the State agency of conserve resident
species of fish or wildlife determined by the State agency or
the Secretary to be endangered or threatened;
(B) the State agency has established acceptable conservation
programs, consistent with the purposes and policies of this Act,
for all resident species of fish or wildlife in the State which are
deemed by the Secretary to be endangered or threatened, and
has furnished a copy of such plan and program together with
all pertinent details, information, and data requested to the
Secretary;
(C) the State agency is authorized to conduct investigations
to determine the status and requirements for survival of resi-
dent species of fish and wildlife;
(D) the State agency is authorized to establish programs, in-
cluding the acquisition of land or aquatic habitat or interests
therein, for the conservation of resident endangered or threat-
ened ^°cies of fish or wildlife; and
13
(E) provision is made for public participation in designating
resident species of fish or wildlife as endangered or threatened,
or that under the State program—
(i) the requirements set forth in paragraphs (3), (4), and
(5) of this subsection are complied with, and
(ii) plans are included under which immediate attention
will be given to those resident species of fish and wildlife
which are determined by the Secretary or the State agency
to be endangered or threatened and which the Secretary
and the State agency agree are most urgently in need of
conservation programs; except that a cooperative agree-
ment entered into with a State whose program is deemed
adequate and active pursuant to clause (i) and this clause
and this subparagraph shall not affect the applicability of
prohibitions set forth in or authorized pursuant to section
4(d) or section 9(a)(1) with respect to the taking of any resi-
dent endangered or threatened species.
(2) In furtherance of the purposes of this Act, the Secretary is au-
thorized to enter into a cooperative agreement in accordance with
this section with any State which establishes and maintains an
adequate and active program for the conservation of endangered
species and threatened species of plants. Within one hundred and
twenty days after the Secretary receives a certified copy of such a
proposed State program, he shall make a determination whether
such program is in accordance with this Act. Unless he determines,
pursuant to this paragraph, that the State program is not in ac-
cordance with this Act, he shall enter into a cooperative agreement
with the State for the purpose of assisting in implementation of the
State program. In order for a State program to be deemed an ade-
quate and active program for the conservation of endangered spe-
cies of plants and threatened species of plants, the Secretary must
find, and annually thereafter reconfirm such finding, that under
the State program—
(A) authority resides in the State agency to conserve resident
species of plants determined by the State agency or the Secre-
tary to be endangered or threatened;
(B) the State agency has established acceptable conservation
programs, consistent with the purposes and policies of this Act,
for all resident species of plants in the State which are deemed
by the Secretary to be endangered or threatened, and has fur-
nished a copy of such plan and program together with all per-
tinent details, information, and data requested to the Secre-
tary;
(C) the State agency is authorized to conduct investigations
to determine the status and requirements for survival of resi-
dent species of plants; and
(D) provision is made for public participation in designating
resident species of plants as endangered or threatened; or that
under the State program—
(i) the requirements set forth in subparagraphs (C) and
(D) of this paragraph are complied with, and
(ii) plans are included under which immediate attention
will be given to those resident species of plants which are
determined by the Secretary or the State agr *.o be en-
-------
14
dangered or threatened and which the Secretary and the
State agency agree are most urgently in need of conserva-
tion programs; except that a cooperative agreement en-
tered into with a State whose program is deemed adequate
and active pursuant to clause (i) and this clause shall not
affect the applicability of prohibitions set forth in or au-
thorized pursuant to section 4(d) or section 9(aXl) with re-
spect to the taking of any resident endangered or threat-
ened species.
(d) Allocation of Funds.—(1) The Secretary is authorized to
provide financial assistance to any State, through its respective
State agency, which has entered into a cooperative agreement pur-
suant to subsection (c) of this section to assist in development of
programs for the conservation of endangered and threatened spe-
cies or to assist in monitoring the status of candidate species pursu-
ant to subparagraph (C) of section 4(b)(3) and recovered species pur-
suant to section 4(g). The Secretary shall allocate each annual ap-
propriation made in accordance with the provisions of subsection (i)
of this section to such States based on consideration of—
(A) the international commitments of the United States to
protect endangered species or threatened species;
(B) the readiness of a State to proceed with a conservation
program consistent with the objectives and purposes of this
Act;
(C) the number of endangered species and threatened species
within a State;
(D) the potential for restoring endangered species and threat-
ened species within a State;
(E) the relative urgency to initiate a program to restore and
protect an endangered species or threatened species in terms of
survival of the species;
(F) the importance of monitoring the status of candidate spe-
cies within a State to prevent a significant risk to the well
being of any such species; and
(G) the importance of monitoring the status of recovered spe-
cies within a State to assure that such species do not return to
the point at which the measures provided pursuant to this Act
are again necessary.
So much of the annual appropriation made in accordance with
provisions of subsection (i) of this section allocated for obligation to
any State for any fiscal year as remains unobligated at the close
thereof is authorized to be made available to that State until the
close of the succeeding fiscal year. Any amount allocated to any
State which is unobligated at the end of the period during which it
is available for expenditure is authorized to be made available for
expenditure by the Secretary in conducting programs under this
section.
(2) Such cooperative agreements shall provide for (A) the actions
to be taken by the Secretary and the States; (B) the benefits that
are expected to be derived in connection with the conservation of
endangered or threatened species; (C) the estimated cost of these
actions; and (D) the share of such costs to be borne by the Federal
Government and by the States; except that—
15
(i) the Federal share of such program costs shall not exceed
75 percent of the estimated program cost stated in the agree-
ment; and
(ii) the Federal share may be increased to 90 percent when-
ever two or more States having a common interest in one or
more endangered or threatened species, the conservation of
which may be enhanced by cooperation of such States, enter
jointly into agreement with the Secretary.
The Secretary may, in his discretion, and under such rules and
regulations as he may prescribe, advance funds to the State for fi-
nancing the United States pro rata share agreed upon in the coop-
erative agreement. For the purposes of this section, the non-Feder-
al share may, in the discretion of the Secretary, be in the form of
money or real property, the value of which will be determined by
the Secretary whose decision shall be final.
(e) Review of State Programs.—Any action taken by the Secre-
tary under this section shall be subject to his periodic review at no
greater than annual intervals.
(f) Conflicts Between Federal and State Laws.—Any State
law or regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in, endangered
species or threatened species is void to the extent that it may effec-
tively (1) permit what is prohibited by this Act of by any regulation
which implements this Act, or (2) prohibit what is authorized pur-
suant to an exemption or permit provided for in this Act or in any
regulation which implements this Act. This Act shall not otherwise
be construed to void any State law or regulation which is intended
to conserve migratory, resident, or introduced fish or wildlife, or to
permit or prohibit sale of such fish or wildlife. Any State law or
regulation respecting the taking of an endangered species or
threatened species may be more restrictive than the exemptions or
permits provided for in this Act or in any regulation which imple-
ments this Act but not less restrictive than the prohibitions so de-
fined.
(g) Transition.—(1) For purposes of this subsection, the term "es-
tablishment period" means, with respect to any State, the period
beginning on the date of enactment of this Act and ending on
whichever of the following dates first occurs: (A) the date of the
close of the 120-day period following the adjournment of the first
regular session of the legislature of such State which commences
after such date of enactment, or (B) the date of the close of the 15-
month period following such date of enactment.
(2) The prohibitions set forth in or authorized pursuant to sec-
tions 4(d) and 9(aXl)(B) of this Act shall not apply with respect to
the taking of any resident endangered species or threatened species
(other than species listed in Appendix I to the Convention or other-
wise specifically covered by any other treaty or Federal law) within
any State—
(A) which is then a party to a cooperative agreement with
the Secretary pursuant to section 6(c) of this Act (except to the
extent that the taking of any such species is contrary to the
law of such State); or
(B) except for any time within the establishment period
when—
-------
16
(i) the Secretary applies such prohibition to such species
at the request of the State, or
(ii) the Secretary applies such prohibition after he finds,
and publishes his finding, that an emergency exists posing
a significant risk to the well-being of such species and that
the prohibition must be applied to protect such species.
The Secretary's finding and publication may be made
without regard to the public hearing or comment provi-
sions of section 553 of title 5, United States Code, or any
other provision of this Act; but such prohibition shall
expire 90 days after the date of its imposition unless the
Secretary further extends such prohibition by publishing
notice and a statement of justification of such extension.
(h) Regulations.—The Secretary is authorized to promulgate
such regulations as may be appropriate to carry out the provisions
of this section relating to financial assistance to States.
(i) Appropriations.—(1) To carry out the provisions of this sec-
tion for fiscal years after September 30, 1988, there shall be depos-
ited into a special fund known as the cooperative endangered spe-
cies conservation fund, to be administered by the Secretary, an
amount equal to five percent of the combined amounts covered
each fiscal year into the Federal aid to wildlife restoration fund
under section 3 of the Act of September 2, 1937, and paid, trans-
ferred, or otherwise credited each fiscal year to the Sport Fishing
Restoration Account established under 1016 of the Act of July 18,
1984.
(2) Amounts deposited into the special fund are authorized to be
appropriated annually and allocated in accordance with subsection
(d) of this section.
INTERAGENCY COOPERATION
Sec. 7. (a) Federal Agency Actions and Consultations.—(1)
The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of this
Act. All other Federal agencies shall, in consultation with and with
the assistance of the Secretary, utilize their authorities in further-
ance of the purposes of this Act by carrying out programs for the
conservation of endangered species and threatened species listed
pursuant to section 4 of this Act.
(2) Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency (hereinafter in this section
referred to as an "agency action ') is not likely to jeopardize the
continued existence of any endangered species or threatened spe-
cies or result in the destruction or adverse modification of habitat
of such species which is determined by the Secretary, after consul-
tation as appropriate with affected States, to be critical, unless
such agency has been granted an exemption for such action by the
Committee pursuant to subsection (h) of this section. In fulfilling
the requirements of this paragraph each agency shall use the best
scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a
Federal agency shall consult with the Secretary on any prospective
17
agency action at the request of, and in cooperation with, the pro-
spective permit or license applicant if the applicant has reason to
believe that an endangered species or a threatened species may be
present in the area affected by his project and that implementation
of such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any
agency action which is likely to jeopardize the continued existence
of any species proposed to be listed under section 4 or result in the
destruction or adverse modification of critical habitat proposed to
be designated for such species. This paragraph does not require a
limitation on the commitment of resources as described in subsec-
tion (d).
(b) Opinion of Secretary.—(1)(A) Consultation under subsection
(aX2) with respect to any agency action shall be concluded within
the 90-day period beginning on the date on which initiated or, sub-
ject to subparagraph (B), within such other period of time as is mu-
tually agreeable to the Secretary and the Federal agency;
(B) in the case of an agency action involving a permit or license
applicant, the Secretary and the Federal agency may not mutually
agree to conclude consultation within a period exceeding 90 days
unless the Secretary, before the close of the 90th day referred to in
subparagraph (A)—
(i) if the consultation period proposed to be agreed to will
end before the 150th day after the date on which consultation
was initiated, submits to the applicant a written statement set-
ting forth—
(I) the reasons why a longer period is required;
(II) the information that is required to complete the con-
sultation; and
(III) the estimated date on which consultation will be
completed; or
(ii) if the consultation period proposed to be agreed to will
end 150 or more days after the date on which consultation was
initiated, obtains the consent of the applicant to such period.
The Secretary and the Federal agency may mutually agree to
extend a consultation period established under the preceding sen-
tence if the Secretary, before the close of such period, obtains the
consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded within
such period as is agreeable to the Secretary, the Federal agency,
and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under paragraph
(2) or (3) of subsection (a), the Secretary shall provide to the Feder-
al agency and the applicant, if any, a written statement setting
forth the Secretary's opinion, and a summary of the information on
which the opinion is based, detailing how the agency action affects
the species or its critical habitat. If jeopardy or adverse modifica-
tion is found, the Secretary shall suggest those reasonable and pru-
dent alternatives which he believes would not violate subsection
(a)(2) and can be taken by the Federal agency or applicant in im-
plementing the agency action.
(B) Consultation under subsection (a)(3), and an opinion based by
the Secretary incident to such consultation, regarding an agency
action shall be treated respectively as a consultation ur subsec-
-------
18
tion (a)(2), and as an opinion issued after consultation under such
subsection, regarding that action if the Secretary reviews the
action before it is commenced by the Federal agency and finds, and
notifies such agency, that no significant changes have been made
with respect to the action and that no significant change has oc-
curred regarding the information used during the initial consulta-
tion.
(4) If after consultation under subsection (aX2) of this section, the
Secretary concludes that—
(A) the agency action will not violate such subsection, or
offers reasonable and prudent alternatives which the Secretary
believes would not violate such subsection;
(B) the taking of an endangered species or a threatened spe-
cies incidental to the agency action will not violate such sub-
section; and
(C) if an endangered species or threatened species of a
marine mammal is involved, the taking is authorized pursuant
to section 1371(a)(5) of this title;
the Secretary shall provide the Federal agency and the applicant
concerned, if any, with a written statement that—
(i) specifies the impact of such incidental taking on the spe-
cies,
(ii) specifies those reasonable and prudent measures that the
Secretary considers necessary or appropriate to minimize such
impact,
(iii) in the case of marine mammals, specifies those measures
that are necessary to comply with section 1371(aX5) of this title
with regard to such taking, and
(iv) sets forth the terms and conditions (including, but not
limited to, reporting requirements) that must be complied with
by the Federal agency or applicant (if any), or both, to imple-
ment the measures specified under clauses (ii) and (iii).
(c) Biological Assessment.—(1) To facilitate compliance with the
requirements of subsection (a)(2) each Federal agency shall, with
respect to any agency action of such agency for which no contract
for construction has been entered into and for which no construc-
tion has begun on the date of enactment of the Endangered Species
Act Amendments of 1978, request of the Secretary information
whether any species which is listed or proposed to be listed may be
present in the area of such proposed action. If the Secretary ad-
vises, based on the best scientific and commercial data available,
that such species may be present, such agency shall conduct a bio-
logical assessment for the purpose of identifying any endangered
species or threatened species which is likely to be affected by such
action. Such assessment shall be completed within 180 days after
the date on which initiated (or within such other period as is mutu-
ally agreed to by the Secretary and such agency, except that if a
permit or license applicant is involved, the 180-day period may not
be extended unless such agency provides the applicant, before the
close of such period, with a written statement setting forth the esti-
mated length of the proposed extension and the reasons therefor)
and, before any contract for construction is entered into and before
construction is begun with respect to such action. Such assessment
may be undertaken as part of a Federal agency's compliance with
19
the requirements of section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a biologi-
cal assessment to identify any endangered species or threatened
species which is likely to be affected by such action. Any such bio-
logical assessment must, however, be conducted in cooperation with
the Secretary and under the supervision of the appropriate Federal
agency.
(d) Limitation on Commitment of Resources.—After initiation
of consultation required under subsection (a)(2), the Federal agency
and the permit or license applicant shall not make any irreversible
or irretrievable commitment of resources with respect to the
agency action which has the effect of foreclosing the formulation or
implementation of any reasonable and prudent alternative meas-
ures which would not violate subsection (a)(2).
(e)(1) Establishment of Committee.—There is established a com-
mittee to be known as the Endangered Species Committee (herein-
after in this section referred to as the "Committee").
(2) The Committee shall review any application submitted to it
pursuant to this section and determine in accordance with subsec-
tion (h) of this section whether or not to grant an exemption from
the requirements of subsection (a)(2) of this action for the action set
forth in such application.
(3) The Committee shall be composed of seven members as fol-
lows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency.
Agency.
(E) The Secretap' of the Interior.
(F) The Administrator of the National Oceanic and Atmos-
pheric Administration.
(G) The President, after consideration of any recommenda-
tions received pursuant to subsection (g)(2)(B) shall appoint one
individual from each affected State, as determined by the Sec-
retary, to be a member of the Committee for the consideration
of the application for exemption for an agency action with re-
spect to which such recommendations are made, not later than
30 days after an application is submitted pursuant to this sec-
tion.
(4XA) Members of the Committee shall receive no additional pay
on account of their service on the Committee.
(B) While away from their homes or regular places of business in
the performance of services for the Committee, members of the
Committee shall be allowed travel expenses, including per diem in
lieu of subsistence, in the same manner as persons employed inter-
mittently in the Government service are allowed expenses under
section 5703 of title 5 of the United States Code
(5)(A) Five members of the Committee or their representatives
shall constitute a quorum for the transaction of any function of the
Committee, except that, in no case shall any representative be con-
sidered in determining the existence of a quorum for the transac-
-------
20
tion of any function of the Committee if that function involves a
vote by the Committee on any matter before the Committee.
(B) The Secretary of the Interior shall be the Chairman of the
Committee.
(C) The Committee shall meet at the call of the Chairman or five
of its members.
(D) All meetings and records of the Committee shall be open to
the public.
(6) Upon request of the Committee, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any of
the personnel of such agency to the Committee to assist it in carry-
ing out its duties under this section.
(7)(A) The Committee may for the purpose of carrying out its
duties under this section hold such hearings, sit and act at such
times and places, take such testimony, and receive such evidence,
as the Committee deems advisable.
(B) When so authorized by the Committee, any member or agent
of the Committee may take any action which the Committee is au-
thorized to take by this paragraph.
(C) Subject to the Privacy Act, the Committee may secure direct-
ly from any Federal agency information necessary to enable it to
carry out its duties under this section. Upon request of the Chair-
man of the Committee, the head of such Federal agency shall fur-
nish such information to the Committee.
(D) The Committee may use the United States mails in the same
manner and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the
Committee on a reimbursable basis such administrative support
services as the Committee may request.
(8) In carrying out its duties under this section, the Committee
may promulgate and amend such rules, regulations, and proce-
dures, and issue and amend such orders as it deems necessary.
(9) For the purpose of obtaining information necessary for the
consideration of an application for an exemption under this section
the Committee may issue subpoenas for the attendance and testi-
mony of witnesses and the production of relevant papers, books,
and documents.
(10) In no case shall any representative, including a representa-
tive of a member designated pursuant to paragraph (3)(G) of this
subsection, be eligible to cast a vote on behalf of any member.
(f) Regulations.—Not later than 90 days after the date of enact-
ment of the Endangered Species Act Amendments of 1978, the Sec-
retary shall promulgate regulations which set forth the form and
manner in which applications for exemption shall be submitted to
the Secretary and the information to be contained in such applica-
tions. Such regulations shall require that information submitted in
an application by the head of any Federal agency with respect to
any agency action include but not be limited to—
(1) a description of the consultation process carried out pur-
suant to subsection (a)(2) of this section between the head of
the Federal agency and the Secretary; and
(2) a statement describing why such action cannot be altered
or modified to conform with the requirements of subsection
(a)(°* ">f this section.
21
(g) Application for Exemption and Uvr^-jtr. to the Commit-
tee.—(1) A Federal agency, the Governor o| Viite in which an
agency action will occur, if any, or a perin;-, ;rlicense applicant
may apply to the Secretary for an exempt^/--. ;'-r agency action
of such agency if, after consultation undirr rtisejtion (a)(2), the
Secretary's opinion under subsection (b) the agency
action would violate subsection (a)(2). An a\i^for an exemp-
tion shall be considered initially by the in the manner
provided for in this subsection, and shall be by the Com-
mittee for a final determination under sub^xn.cr: ~~z> after a report
is made pursuant to paragraph (5). The appl,-^--. f;r an exemption
shall be referred to as the "exemption ji this section.
(2XA) An exemption applicant shall subm,-. ; ^r;—en application
to the Secretary, in a form prescribed under ?•.-section (0 not later
than 90 days after the completion of thv -^r^ultation process;
except that, in the case of any agency actio;, jjg a permit or
license applicant, such application shall U j.uhniitted not later
than 90 days after the date on which the axency concerned
takes final agency action with respect to the- .&¦,:?0f permit
or license. For purposes of the preceding s,vsc: :o administrative
review, whether or not such disposition is su-/*-; :o Judicial review;
or (ii) if administrative review is sought wit.-'to such dispo-
sition, the decision resulting after such nrv*.v' Vuch application
shall set forth the reasons why the exempt.-,' aoDlicant considers
that the agency action meets the requiren^-r.? '-'0T an exemption
under this subsection.
(B) Upon receipt of an application for exi~r;tion for an agency
action under paragraph (1), the Secretary s-%; promptlv (i) notify
the Governor of each affected State, if any s determined by the
Secretary, and request the Governors so nov^ to recommend in-
dividuals to be appointed to the Endangered v-^jes Committee for
consideration of such application; and (ii) p >^sn notice of receipt
of the application in the Federal Register, iir..iriing a summary of
the information contained in the applicatioi incj a description of
the agency action with respect to which the Plication for exemp-
tion has been filed.
(3) The Secretary shall within 20 days afU- :ie receipt of an ap-
plication for exemption, or within such oth<7- j^nod of time as is
mutually agreeable to the exemption applicur inej the Secretary
(A) determine that the Federal agency .rncernecj ancj the ex-
emption applicant have—
(i) carried out the consultation renvnsjhjijties described
in subsection (a) in good faith and n^t<> a reasonable and
responsible effort to develop and fa>-> consider modifica-
tions or reasonable and prudent ai^-,ntives to the pro-
posed agency action which would r.-.- violate subsection
(a)(2);
(ii) conducted any biological assessor, required by sub-
section (c); and
(iii) to the extent determinable wiv;, ;he tj,^ orovided
herein, refrained from making an^ rovers-'
-------
22
trievable commitment of resources prohibited by subsec-
tion (d); or
(B) deny the application for exemption because the Federal
agency concerned or the exemption applicant have not met the
requirements set forth in subparagraph (A) (i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be con-
sidered final agency action for purposes of chapter 7 of title 5,
United States Code.
(4) If the Secretary determines that the Federal agency con-
cerned and the exemption applicant have met the requirements set
forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in consultation
with the Members of the Committee, hold a hearing on the applica-
tion for exemption in accordance with sections 554, 555, and 556
(other than subsection (b) (1) and (2) thereof) of title 5, United
States Code, and prepare the report to be submitted pursuant to
paragraph (5).
(5) Within 140 days after making the determinations under para-
graph (3) or within such other period of time as is mutually agree-
able to the exemption applicant and the Secretary, the Secretary
shall submit to the Committee a report discussing—
(A) the availability of reasonable and prudent alternatives to
the agency action, and the nature and extent of the benefits of
the agency action and of alternative courses of action consist-
ent with conserving the species of the critical habitat;
(B) a summary of the evidence concerning whether or not
the agency action is in the public interest and is of national or
regional significance;
(C) appropriate reasonable mitigation and enhancement
measures which should be considered by the Committee; and
(D) whether the Federal agency concerned and the exemp-
tion applicant refrained from making any irreversible or irre-
trievable commitment of resources prohibited by subsection (d).
(6) To the extent practicable within the time required for action
under subsection (g) of this section, and except to the extent incon-
sistent with the requirements of this section, the consideration of
any application for an exemption under this section and the con-
duct of any hearing under this subsection shall be in accordance
with sections 554, 555, and 556 (other than subsection (b)(3) of sec-
tion 556) of title 5, United States Code.
(7) Upon request of the Secretary, the head of any Federal
agency is authorized to detail, on a nonreimbursable basis, any of
the personnel of such agency to the Secretary to assist him in car-
rying out his duties under this section.
(8) All meetings and records resulting from activities pursuant to
this subsection shall be open to the public.
(h) Exemption.—(1) The Committee shall make a final determi-
nation whether or not to grant an exemption within 30 days after
receiving the report of the Secretary pursuant to subsection (gX5).
The Committee shall grant an exemption from the requirements of
subsection (a)(2) for an agency action if, by a vote of not less than
five of its members voting in person—
(A) it determines on the record, based on the report of the
Secretary, the record of the hearing held under subsection
23
(gX4), and on such other testimony or evidence as it may re-
ceive, that—
(i) there are no reasonable and prudent alternatives to
the agency action;
(ii) the benefits of such action clearly outweigh the bene-
fits of alternative courses of action consistent with con-
serving the species or its critical habitat, and such action
is in the public interest;
(iii) the action is of regional or national significance; and
(iv) neither the Federal agency concerned nor the ex-
emption applicant made any irreversible or irretrievable
commitment of resources prohibited by subsection (d); and
(B) it establishes such reasonable mitigation and enhance-
ment measures, including, but not limited to, live propagation,
transplantation, and habitat acquisition and improvement, as
are necessary and appropriate to minimize the adverse effects
of the agency action upon the endangered species, threatened
species, or critical habitat concerned.
Any final determination by Committee under this subsection
shall be considered final agency action for purposes of chapter 7 of
title 5 of the United States Code.
(2XA) Except as provided in subparagraph (B), an exemption for
sm agency action granted under paragraph (1) shall constitute a
permanent exemption with respect to all endangered or threatened
species for the purposes of completing such agency action—
(i) regardless whether the species was identified in the bio-
logical assessment; and
(ii) only if a biological assessment has been conducted under
subsection (c) with respect to such agency action.
(B) An exemption shall be permanent under subparagraph (A)
unless—
(i) the Secretary finds, based on the best scientific and com-
mercial data available, that such exemption would result in
the extinction of a species that was not the subject of consulta-
tion under subsection (aX2) or was not identified in any biologi-
cal assessment conducted under subsection (c), and
(ii) the Committee determines within 60 days after the date
of the Secretary's finding that the exemption should not be
permanent.
If the Secretary makes a finding described in clause (i), the Com-
mittee shall meet with respect to the matter within 30 days after
the date of the finding.
(i) Review by Secretary of State.—Notwithstanding any other
provision of this Act, the Committee shall be prohibited from con-
sidering for exemption any application made to it, if the Secretary
of State, after a review of the proposed agency action and its poten-
tial implications, and after hearing, certifies, in writing, to the
Committee within 60 days of any application made under this sec-
tion that the granting of any such exemption and the carrying out
of such action would be in violation of an international treaty obli-
gation or other international obligation of the United States. The
Secretary of State shall, at the time of such certification, publish a
copy thereof in the Federal Register.
-------
24
(j) Notwithstanding any other provision of this Act, the Commit-
tee shall grant an exemption for any agency action if the Secretary
of Defense finds that such exemption is necessary for reasons of na-
tional security.
(k) Special Provisions.—An exemption decision by the Commit-
tee under this section shall not be a major Federal action for pur-
poses of the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.): Provided, That an environmental impact statement
which discusses the impacts upon endangered species or threatened
species or their critical habitats shall have been previously pre-
pared with respect to any agency action exempted by such order.
(1) Committee Orders.—(1) If the Committee determines under
subsection (h) that an exemption should be granted with respect to
any agency action, the Committee shall issue an order granting the
exemption and specifying the mitigation and enhancement meas-
ures established pursuant to subsection (h) which shall be carried
out and paid for by the exemption applicant in implementing the
agency action. All necessary mitigation and enhancement meas-
ures shall be authorized prior to the implementing of the agency
action and funded concurrently with all other project features.
(2) The applicant receiving such exemption shall include the
costs of such mitigation and enhancement measures within the
overall costs of continuing the proposed action. Notwithstanding
the preceding sentence the costs of such measures shall not be
treated as project costs for the purpose of computing benefit-cost or
other ratios for the proposed action. Any applicant may request the
Secretary to carry out such mitigation and enhancement measures.
The costs incurred by the Secretary in carrying out any such meas-
ures shall be paid by the applicant receiving the exemption. No
later than one year after the granting of an exemption, the exemp-
tion applicant shall submit to the Council on Environmental Qual-
ity a report describing its compliance with the mitigation and en-
hancement measures prescribed by this section. Such report shall
be submitted annually until all such mitigation and enhancement
measures have been completed. Notice of the public availability of
such reports shall be published in the Federal Register by the
Council on Environmental Quality.
(m) Notice.—The 60-day notice requirement of section 11(g) of
this Act shall not apply with respect to review of any final determi-
nation of the Committee under subsection (h) of this section grant-
ing an exemption from the requirements of subsection (a)(2) of this
section.
(n) Judicial Review.—Any person, as defined by section 3(13) of
this Act, may obtain judicial review, under chapter 7 of title 5 of
the United States Code, of any decision of the Endangered Species
Committee under subsection (h) in the United States Court of Ap-
Eeals for (1) any circuit wherein the agency action concerned will
e, or is being, carried out, or (2) in any case in which the agency
action will be, or is being, carried out outside of any circuit, the
District of Columbia, by filing in such court within 90 days after
the date of issuance of the decision, a written petition for review. A
copy of such petition shall be transmitted by the clerk of the court
to the Committee and the Committee shall file in the court the
rec n the proceeding, as provided in section 2112, of title 28,
25
United States Code. Attorneys designated by the Endangered Spe-
cies Committee may appear for. and represent the Committee in
any action for review under this subsection.
(o) Exemption as Providing Exception on Taking of Endan-
gered Species.—Notwithstanding sections 1533(d) and 1538(a)(1)(B)
and (C) of this title, sections 13 > 1 and 1372 of this title, or any reg-
ulation promulgated to implement any such section—
(1) any action for which am exemption is granted under sub-
section (h) of this section shall not be considered to be a taking
of any endangered species or threatened species with respect to
any activity which is necessary to carry out such action; and
(2) any taking that is in compliance with the terms and con-
ditions specified in a written statement provided under subsec-
tion (b)(4)(iv) of this section shall not be considered to be a pro-
hibited taking of the species concerned.
(p) Exemptions in Presidentially Declared Disaster Areas.—
In any area which has been declared by the President to be a
major disaster area under the Disaster Relief Act of 1974, the
President is authorized to make the determinations required by
subsections (g) and (h) of this section for any project for the repair
or replacement of a public facility substantially as it existed prior
to the disaster under section 401 or 402 of the Disaster Relief Act
of 1974, and which the President determines (1) is necessary to pre-
vent the recurrence of such a natural disaster and to reduce the
potential loss of human life, and (2) to involve an emergency situa-
tion which does not allow the ordinary procedures of this section to
be followed. Notwithstanding any other provision of this section,
the Committee shall accept the determinations of the President
under this subsection.
international cooperation
Sec. 8. (a) Financial Assistance.—As a demonstration of the
commitment of the United States to the worldwide protection of
endangered species and threatened species, the President may, sub-
ject to the provisions of section 1415 of the Supplemental Appro-
priation Act, 1953 (31 U.S.C. 724), use foreign currencies accruing
to the United States Government under the Agricultural Trade De-
velopment and Assistance Act of 1954 or any other law to provide
to any foreign country (with its consent) assistance in the develop-
ment and management of programs in that country which the Sec-
retary determines to be necessary or useful for the conservation of
any endangered species or threatened species listed by the Secre-
tary pursuant to section 4 of this Act. The President shall provide
assistance (which includes, but is not limited to, the acquisition, by
lease or otherwise^ of lands, waters, or interests therein) to foreign
countries under this section under such terms and conditions as he
deems appropriate. Whenever foreign currencies are available for
the provision of assistance under this section, such currencies shall
be used in preference to funds appropriated under the authority of
section 15 of this Act.
(b) Encouragement of Fokkign Programs.—In order to carry
out further the provisions of this Act, the Secretf-v, through the
Secretary of State shall encourage—
-------
26
(1) foreign countries to provide for the conservation of fish or
wildlife and plants including endangered species and threat-
ened species listed pursuant to section 4 of this Act;
(2) the entering into of bilateral or multilateral agreements
with foreign countries to provide for such conservation; and
(3) foreign persons who directly or indirectly take fish or
wildlife or plants in foreign countries or on the high seas for
importation into the United States for commercial or other
purposes to develop and carry out with such assistance as he
may provide, conservation practices designed to enhance such
fish or wildlife or plants and their habitat.
(c) Personnel.—After consultation with the Secretary of State,
the Secretary may—
(1) assign or otherwise make available any officer or employ-
ee of his department for the purpose of cooperating with for-
eign countries and international organizations in developing
personnel resources and programs which promote the conser-
vation of fish or wildlife or plants, and
(2) conduct or provide financial assistance for the education-
al training of foreign personnel, in this country or abroad, in
fish, wildlife, or plant management, research and law enforce-
ment and to render professional assistance abroad in such mat-
ters.
(d) Investigations.—After consultation with the Secretary of
State and the Secretary of the Treasury, as appropriate, the Secre-
tary may conduct or cause to be conducted such law enforcement
investigations and research abroad as he deems necessary to carry
out the purposes of this Act.
CONVENTION IMPLEMENTATION
Sec. 8A. (a) Management Authority and Scientific Author-
ity.—The Secretary of the Interior (hereinafter in this section re-
ferred to as the "Secretary") is designated as the Management Au-
thority and the Scientific Authority for purposes of the Convention
and the respective functions of each such Authority shall be car-
ried out through the United States Fish and Wildlife Service.
fb) Management Authority Functions.—The Secretary shall do
all things necessary and appropriate to carry out the functions of
the Management Authority under the Convention.
(c) Scientific Authority Functions.—(1) The Secretary shall do
all things necessary and appropriate to carry out the functions of
the Scientific Authority under the Convention.
(2) The Secretary shall base the determinations and advice given
by him under Article IV of the Convention with respect to wildlife
upon the best available biological information derived from profes-
sionally accepted wildlife management practices; but is not re-
quired to make, or require any State to make, estimates of popula-
tion size in making such determinations or giving such advice.
(d) Reservations by the United States Under Convention.—If
the United States votes against including any species in Appendix I
or II of the Convention and does not enter a reservation pursuant
to paragraph (3) of Article XV of the Convention with respect to
that species, the Secretary of State, before the 90th day after the
27
last day on which such a reservation could be entered, shall submit
to the Committee on Merchant Marine and Fisheries of the House
of Representatives, and to the Committee on the Environment and
Public Works of the Senate, a written report setting forth the rea-
sons why such a reservation was not entered.
(e) Wildlife Preservation in Western Hemisphere.—(1) The
Secretary of the Interior (hereinafter in this subsection referred to
as the "Secretary"), in cooperation with the Secretary of State,
shall act on behalf of, and represent, the United States in all re-
gards as required by the Convention on Nature Protection and
Wildlife Preservation in the Western Hemisphere (56 Stat. 1354,
T.S. 982, hereinafter in this subsection referred to as the "Western
Convention"). In the discharge of these responsibilities, the Secre-
tary and the Secretary of State shall consult with the Secretary of
Agriculture, the Secretary of Commerce, and the heads of other
agencies with respect to matters relating to or affecting their areas
of responsibility.
(2) The Secretary and the Secretary of State shall, in cooperation
with the contracting parties to the Western Convention and, to the
extent feasible and appropriate, with the participation of State
agencies, take such steps as are necessary to implement the West-
ern Convention. Such steps shall include, but not be limited to—
(A) cooperation with contracting parties and international
organizations for the purpose of developing personnel resources
and programs that will facilitate implementation of the West-
ern Convention;
(B) identification of those species of birds that migrate be-
tween the United States and other contracting parties, and the
habitats upon which those species depend, and the implemen-
tation of cooperative measures to ensure that such species will
not become endangered or threatened; and
(C) identification of measures that are necessary and appro-
priate to implement those provisions of the Western Conven-
tion which address the protection of wild plants.
(3) No later than September 30, 1985, the Secretary and the Sec-
retary of State shall submit a report to Congress describing those
steps taken in accordance with the requirements of this subsection
and identifying the principal remaining actions yet necessary for
comprehensive and effective implementation of the Western Con-
vention.
(4) The provisions of this subsection shall not be construed as af-
fecting the authority, jurisdiction, or responsibility of the several
States to manage, control, or regulate resident fish or wildlife
under State law or regulations.
prohibited acts
Sec. 9. (a) General.—(1) Except as provided in sections 6(g)(2)
and 10 of this Act, with respect to any endangered species of fish or
wildlife listed pursuant to section 4 of this Act it is unlawful for
any person subject to the jurisdiction of the United States to—
(A) import any such species into, or export any such species
from the United States;
-------
28
(B) take any such species within the United States or the ter-
ritorial sea of the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any means
whatsoever, any such species taken in violation of subparagraphs
(B> and (C);
(E) deliver, receive, carry, transport, or ship in interstate or
foreign commerce, by any means whatsoever and in the course
of a commercial activity, any such species;
(F) sell or offer for sale in interstate or foreign commerce
any such species; or
(G) violate any regulation pertaining to such species or to
any threatened species of fish or wildlife listed pursuant to sec-
tion 4 of this Act and promulgated by the Secretary pursuant
to authority provided by this Act.
(2) Except as provided in sections 6(g)(2) and 10 of this Act, with
respect to any endangered species of plants listed pursuant to sec-
tion 4 of this Act, it is unlawful for any person subject to the juris-
diction of the United States to—
(A) import any such species into, or export any such species
from, the United States;
(B) remove and reduce to possession any such species from
areas under Federal jurisdiction; maliciously damage or de-
stroy any such species on any such area; or remove, cut, dig
up, or damage or destroy any such species on any other area in
knowing violation of any law or regulation of any state or in
the course of any violation of a state criminal trespass law;".
(C) deliver, receive, carry, transport, or ship in interstate or
foreign commerce, by any means whatsoever and in the course
of a commercial activity, any such species;
(D) sell or offer for sale in interstate or foreign commerce
any such species; or
(E) violate any regulation pertaining to such species or to
any threatened species of plants listed pursuant to section 4 of
this Act and promulgated by the Secretary pursuant to author-
ity provided by this Act.
(b)(1) Species Held in Captivity or Controlled Environment.—
The provisions of subsections (a)(1)(A) and (a)(1)(G) of this section
shall not apply to any fish or wildlife which was held in captivity
or in a controlled environment on (A) December 28, 1973, or (B) the
date of the publication in the Federal Register of a final regulation
adding such fish or wildlife species to any list published pursuant
to subsection (c) of section 4 of this Act: Provided, That such hold-
ing and any subsequent holding or use of the fish or wildlife was
not in the course of a commercial activity. With respect to any act
prohibited by subsections (a)(1)(A) and (a)(1)(G) of this section which
occurs after a period of 180 days from (i) December 28, 1973, or (ii)
the date of publication in the Federal Register of a final regulation
adding such fish or wildlife species to any list published pursuant
to subsection (c) of section 4 of this Act, there shall be a rebuttable
presumption that the fish or wildlife involved in such act is not en-
titled to the exemption contained in this subsection.
(2)(A) The provisions of subsections (a)(1) shall not apply to—
29
(i) any raptor legally held in captivity or in a controlled envi-
ronment on the effective date of the Endangered Species Act
Amendments of 1978; or
(ii) any progeny of any raptor described in clause (i); until
such time as any such raptor or progeny is intentionally re-
turned to a wild state.
(B) Any person holding any raptor or progeny described in sub-
paragraph (A) must be able to demonstrate that the raptor or prog-
eny does, in fact, qualify under the provisions of this paragraph,
and shall maintain and submit to the Secretary, on request, such
inventories, documentation, and records as the Secretary may by
regulation require as being reasonably appropriate to carry out the
purposes of this paragraph. Such requirements shall not unneces-
sarily duplicate the requirements of other rules and regulations
promulgated by the Secretary.
(c) Violation of Convention.—(1) It is unlawful for any person
subject to the jurisdiction of the United States to engage in any
trade in any specimens contrary to the provisions of the Conven-
tion, or to possess any specimens traded contrary to the provisions
of the Convention, including the definitions of terms in article I
thereof.
(2) Any importation into the United States of fish or wildlife
shall, if—
(A) such fish or wildlife is not an endangered species listed
pursuant to section 4 of this Act but is listed in Appendix II of
the Convention;
(B) the taking and exportation of such fish or wildlife is not
contrary to the provisions of the Convention and all other ap-
plicable requirements of the Convention have been satisfied;
(C) the applicable requirements of subsections (d), (e), and (f)
of this section have been satisfied; and
(D) such importation is not made in the course of a commer-
cial activity;
be presumed to be an importation not in violation of any provision
of this Act or any regulation issued pursuant to this Act.
(d) Imports and Exports.—
(1) In general.—It is unlawful for any person, without first
having obtained permission from the Secretary, to engage in
business—
(A) as an importer or exporter of fish or wildlife (other
than shellfish and fishery products which (i) are not listed
pursuant to section 4 of this Act as endangered species or
threatened species, and (ii) are imported for purposes of
human or animal consumption or taken in waters under
the jurisdiction of the United States or on the high seas
for recreational purposes) or plants; or
(B) as an importer or exporter of any amount of raw or
worked African elephant ivory.
(2) Requirements.—Any person required to obtain permis-
sion under paragraph (1) of this subsection shall—
(A) keep such records as will fully and correctly disclose
each importation or exportation of fish, wildlife, plants, or
African elephant ivory made by him and t) bsequent
-------
30
disposition made by him with respect to such fish, wildlife,
plants, or ivory;
(B) at all reasonable times upon notice by a duly author-
ized representative of the Secretary, afford such represent-
ative access to his place of business, an opportunity to ex-
amine his inventory of imported fish, wildlife, plants, or
African elephant ivory and the records required to be kept
under subparagraph (A) of this paragraph, and to copy
such records; and
(C) file such reports as the Secretary may require.
(3) Regulations.—The Secretary shall prescribe such regula-
tions as are necessary and appropriate to carry out the pur-
poses of this subsection.
(4) Restriction on consideration of value or amount of
AFRICAN ELEPHANT IVORY IMPORTED OR EXPORTED.—In granting
permission under this subsection for importation or exporta-
tion of African elephant ivory, the Secretary shall not vary the
requirements for obtaining such permission on the basis of the
value or amount of ivory imported or exported under such per-
mission.
(e) Reports.—It is unlawful for any person importing or export-
ing fish or wildlife (other than shellfish and fishery products which
(1) are not listed pursuant to section 4 of this Act as endangered or
threatened species, and (2) are imported for purposes of human or
animal consumption or taken in waters under the jurisdiction of
the United States or on the high seas for recreational purposes) or
plants to fail to file any declaration or report as the Secretary
deems necessary to facilitate enforcement of this Act or to meet
the obligations of the Convention.
(f) Designation of Ports.—(1) It is unlawful for any person sub-
ject to the jurisdiction of the United States to import into or export
from the United States any fish or wildlife (other than shellfish
and fishery products which (A) are not listed pursuant to section 4
of this Act as endangered species or threatened species, and (B) are
imported for purposes of human or animal consumption or taken
in waters under the jurisdiction of the United States or on the high
seas for recreational purposes) or plants, except at a port or ports
designated by the Secretary of the Interior. For the purposes of fa-
cilitating enforcement of this Act and reducing the costs thereof,
the Secretary of the Interior, with approval of the Secretary of the
Treasury and after notice and opportunity for public hearing, may,
by regulation, designate ports and change such designations. The
Secretary of the Interior, under such terms and conditions as he
may prescribe, may permit the importation or exportation at non-
designated ports in the interest of the health or safety of the fish
or wildlife or plants, or for other reasons if, in his discretion, he
deems it appropriate and consistent with the purpose of this sub-
section.
(2) Any port designated by the Secretary of the Interior under
the authority of section 4(d) of the Act of December 5, 1969 (16
U.S.C. 666cc-4(d), shall, if such designation is in effect on the day
before the date of the enactment of this Act, be deemed to be a
port designated by the Secretary under paragraph (1) of this sub-
section until such time as the Secretary otherwise provides.
31
(g) Violations.—It is unlawful for any person subject to the ju-
risdiction of the United States to attempt to commit, solicit another
to commit, or cause to be committed, any offense defined in this
section.
exceptions
Sec. 10. (a) Permits.—(1) The Secretary may permit, under such
terms and conditions as he shall prescribe—
(A) any act otherwise prohibited by section 9 for scientific
purposes or to enhance the propagation or survival of the af-
fected species, including, but not limited to, acts necessary for
the establishment and maintenance of experimental popula-
tions pursuant subsection (j); or
(B) any taking otherwise prohibited by section 9(a)(1)(B) if
such taking is incidental to, and not the purpose of, the carry-
ing out of an otherwise lawful activity.
(2XA) No permit may be issued by the Secretary authorizing any
taking referred to in paragraph (1)(B) unless the applicant therefor
submits to the Secretary a conservation plan that specifies—
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and miti-
gate such impacts, and the funding that will be available to
implement such steps;
(iii) what alternative actions to such taking the applicant
considered and the reasons why such alternatives are not
being utilized; and
(iv) such other measures that the Secretary may require as
being necessary or appropriate for purposes of the plan.
(B) If the Secretary finds, after opportunity for public comment,
with respect to a permit application and the related conservation
plan that—
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the
plan will be provided;
(iv) the taking will not appreciably reduce the likelihood of
the survival and recovery of the species in the wild; and
(v) the measures, if any, required under subparagraph (A)(iv)
will be met;
and he has received such other assurances as he may require that
the plan will be implemented, the Secretary shall issue the permit.
The permit shall contain such terms and conditions as the Secre-
tary deems necessary or appropriate to carry out the purposes of
this paragraph, including, but not limited to, such reporting re-
quirements as the Secretary deems necessary for determining
whether such terms and conditions are being complied with.
(C) The Secretary shall revoke a permit issued under this para-
graph if he finds that the permittee is not complying with the
terms and conditions of the permit.
(b) Hardship Exemptions.—(1) If any person enters into a con-
tract with respect to a species of fish or wildlife or plant before the
date of the publication in the Federal Register of notice of consider-
-------
32
ation of that species as an endangered species and the subsequent
listing of that species as an endangered species pursuant to section
4 of this Act will cause undue hardship to such person under the
contract, the Secretary, in order to minimize such hardship, may
exempt such person from the application of section 9(a) of this Act
to the extent the Secretary deems appropriate if such person ap-
plies to him for such exemption and includes with such application
such information as the Secretary may require to prove such hard-
ship; except that (A) no such exemption shall be for a duration of
more than one year from the date of publication in the Federal
Register of notice of consideration of the species concerned, or shall
apply to a quantity of fish or wildlife or plants in excess of that
specified by the Secretary; (B) the one-year period for those species
of fish or wildlife listed by the Secretary as endangered prior to the
effective date of this Act shall expire in accordance with the terms
of section 3 of the Act of December 5, 1969 (83 Stat. 275); and (C) no
such exemption may be granted for the importation or exportation
of a specimen listed in Appendix I of the Convention which is to be
used in a commercial activity.
(2) As used in this subsection, the term "undue economic hard-
ship" shall include, but not be limited to:
(A) substantial economic loss resulting from inability caused
by this Act to perform contracts with respect to species of fish
and wildlife entered into prior to the date of publication in the
Federal Register of a notice of consideration of such species as
an endangered species;
(B) substantial economic loss to persons who, for the year
prior to the notice of consideration of such species as an endan-
gered species, derived a substantial portion of their income
from the lawful taking of any listed species, which taking
would be made unlawful under this Act; or
(C) curtailment of subsistence taking made unlawful under
this Act by persons (i) not reasonably able to secure other
sources of subsistence; and (ii) dependent to a substantial
extent upon hunting and fishing for subsistence; and (iii) who
must engage in such curtailed taking for subsistence purposes.
(3) The Secretary may make further requirements for a showing
of undue economic hardship as he deems fit. Exceptions granted
under this section may be limited by the Secretary in his discretion
as to time, area, or other factor of applicability.
(c) Notice and Review.—The Secretary shall publish notice in
the Federal Register of each application for an exemption or
permit which is made under this section. Each notice shall invite
the submission from interested parties, within thirty days after the
date of the notice, of written data, views, or arguments with re-
spect to the application; except that such thirty-day period may be
waived by the Secretary in an emergency situation where the
health or life of an endangered animal is threatened and no rea-
sonable alternative is available to the applicant, but notice of any
such waiver shall be published by the Secretary in the Federal
Register within ten days following the issuance of the exemption or
permit. Information received by the Secretary as part of any appli-
cation shall be available to the public as a matter of public record
at eve*" ~tage of the proceeding.
33
(d) Permit and Exemption Policy.—The Secretary may grant ex-
ceptions under subsections (a)(1)(A) and (b) of this section only if he
finds and publishes his finding in the Federal Register that (1) such
exceptions were applied for in good faith, (2) if granted and exer-
cised will not operate to the disadvantage of such endangered spe-
cies, and (3) will be consistent with the purposes and policy set
forth in section 2 of this Act.
(e) Alaska Natives.—(1) Except as provided in paragraph (4) of
this subsection the provisions of this Act shall not apply with re-
spect to the taking of any endangered species or threatened species,
or the importation of any such species taken pursuant to this sec-
tion, by—
(A) any Indian, Aleut, or Eskimo who is an Alaskan Native
who resides in Alaska; or
(B) any non-native permanent resident of an Alaskan native
village;
if such taking is primarily for subsistence purposes. Non-edible by-
products of species taken pursuant to this section may be sold in
interstate commerce when made into authentic native articles of
handicrafts and clothing; except that the provisions of this subsec-
tion shall not apply to any non-native resident of an Alaskan
native village found by the Secretary to be not primarily dependent
upon the taking of fish and wildlife for consumption or for the cre-
ation and sale of authentic native articles of handicrafts and cloth-
ing.
(2) Any taking under this subsection may not be accomplished in
a wasteful manner.
(3) As used in this subsection—
(i) The term "subsistence" includes selling any edible portion
of fish or wildlife in native villages and towns in Alaska for
native consumption within native villages or towns; and
(ii) The term "authentic native articles of handicrafts and cloth-
ing" means items composed wholly or in some significant respect to
natural materials, and which are produced, decorated or fashioned
in the exercise of traditional native handicrafts without the use of
pantographs, multiple carvers, or other mass copying devices. Tra-
ditional native handicrafts include, but are not limited to, weaving,
carving, stitching, sewing, lacing, beading, drawing, and painting.
(4) Notwithstanding the provisions of paragraph (1) of this subsec-
tion, whenever the Secretary determines that any species of fish or
wildlife which is subject to taking under the provisions of this sub-
section is an endangered species or threatened species, and that
such taking materially and negatively affects the threatened or en-
dangered species, he may prescribe regulations upon the taking of
such species by any such Indian, Aleut, Eskimo, or non-native Alas-
kan re&ident of an Alaskan native village. Such regulations may be
established with reference to species, geographical description of
the area included, the season for taking, or any other factors relat-
ed to the reason for establishing such regulations and consistent
with the policy of this Act. Such regulations shall be prescribed
after a notice and hearings in the affected judicial districts of
Alaska and as otherwise required by section 103 of the Marine
Mammal Protection Act of 1972, and shall be remov s soon as
-------
34
the Secretary determines that the need for their impositions has
disappeared.
<0(11 As used in this subsection—
(A) The term "pre-Act endangered species part" means—
(i> any sperm whale oil, including derivatives thereof,
which was lawfully held within the United States on De-
cember 28, 1973, in the course of a commercial activity; or
(ii) any finished scrimshaw product, if such product or
the raw material for such product was lawfully held
within the United States on December 28, 1973, in the
course of a commercial activity.
(B) The term "scrimshaw product" means any art form
which involves the substantial etching or engraving of designs
upon, or the substantial carving of figures, patterns, or designs
from, any bone or tooth of any marine mammal of the order
Cetacea. For purposes of this subsection, polishing or the
adding of minor superficial markings does not constitute sul>
stantial etching, engraving, or carving.
(2) The Secretary, pursuant to the provisions of this subsection,
may exempt, if such exemption is not in violation of the Conven-
tion, any pre-Act endangered species part from one or more of the
following prohibitions:
(A) The prohibition on exportation from the United States
set forth in section 9(a)(lXA) of this Act.
(B) Any prohibition set forth in section 9(a)(1) (E) or (F) of
this Act.
(3) Any person seeking an exemption described in paragraph (2)
of this subsection shall make application therefor to the Secretary
in such form and manner as he shall prescribe, but no such appli-
cation may be considered by the Secretary unless the application—
(A) is received by the Secretary before the close of the one-
year period beginning on the date on which regulations pro-
mulgated by the Secretary to carry out this subsection first
take effect;
(B) contains a complete and detailed inventory of all pre-Act
endangered species parts for which the applicant seeks exemp-
tion;
(C) is accompanied by such documentation as the Secretary
may require to prove that any endangered species part or prod-
uct claimed by the applicant to be a pre-Act endangered spe-
cies part is in fact such a part; and
(D) contains such other information as the Secretary deems
necessary and appropriate to carry out the purposes of this
subsection.
(4) If the Secretary approves any application for exemption made
under this subsection, he shall issue to the applicant a certificate of
exemption which shall specify—
(A) any prohibition in section 9(a) of this Act which is ex-
empted;
(B) the pre-Act endangered species parts to which the exemp-
tion applies;
(C) the period of time during which the exemption is in
effect, but no exemption made under this subsection shall have
force and effect after the close of the three-year period begin-
ning on the date of issuance of the certificate unless such ex-
emption is renewed under paragraph (8); and
(D) any term or condition prescribed pursuant to paragraph
(5) (A) or (B), or both, which the Secretary deems necessary or
appropriate.
(5) The Secretary shall prescribe such regulations as he deems
necessary and appropriate to carry out the purposes of this subsec-
tion. Such regulations may set forth—
(A) terms and conditions which may be imposed on appli-
cants for exemptions under this subsection (including, but not
limited to, requirements that applicants register inventories,
keep complete sales records, permit duly authorized agents of
the Secretary to inspect such inventories and records, and peri-
odically file appropriate reports with the Secretary); and
(B) terms and conditions which may be imposed on any sub-
sequent purchaser of any pre-Act endangered species part cov-
ered by an exemption granted under this subsection:
to insure that any such part so exempted is adequately accounted
for and not disposed of contrary to the provisions of this Act. No
regulation prescribed by the Secretary to carry out the purposes of
this subsection shall be subject to section 4(f)(2)(AXi) of this Act.
(6XA) Any contract for the sale of pre-Act endangered species
parts which is entered into by the Administrator of General Serv-
ices prior to the effective date of this subsection and pursuant to
the notice published in the Federal Register on January 9, 1973,
shall not be rendered invalid by virtue of the fact that fulfillment
of such contract may be prohibited under section 9(a)(1)(F).
(B) In the event that this paragraph is held invalid, the validity
of the remainder of the Act, including the remainder of this subsec-
tion, shall not be affected.
(7) Nothing in this subsection shall be construed to—
(A) exonerate any person from any act committed in viola-
tion of paragraphs (1XA), (1XE), or (1XF) of section 9(a) prior to
the date of enactment of this subsection; or
(B) immunize any person from prosecution for any such act.
(8XAX0 Any valid certificate of exemption which was renewed
after October 13, 1982, and was in effect on March 31, 1988, shall
be deemed to be renewed for a 6-month period beginning on the
date of enactment of the Endangered Species Act Amendments of
1988. Any person holding such a certificate may apply to the Secre-
tary for one additional renewal of such certificate for a period not
to exceed 5 years beginning on the date of such enactment.
(B) If the Secretary approves any application for renewal of an
exemption under this paragraph, he shall issue to the applicant a
certificate of renewal of such exemption which shall provide that
all terms, conditions, prohibitions, and other regulations made ap-
plicable by the previous certificate shall remain in effect during
the period of the renewal.
(C) No exemption or renewal of such exemption made under this
subsection, shall have force and effect after the expiration date of
the certificate of renewal of such exemption issued under this para-
graph.
(D) No person may, after January 31, 1984, sell or offer for sale
in interstate or foreign commerce, any pre-Act finished scrimshaw
-------
36
product unless such person holds a valid certificate of exemption
issued by the Secretary under this subsection, and unless such
product or the raw material for such product was held by such
person on October 13, 1982.
(g) In connection with any action alleging a violation of section 9,
any person claiming the benefit of any exemption or permit under
this Act shall have the burden of proving that the exemption or
permit is applicable, has been granted, and was valid and in force
at the time of the alleged violation.
(h) Certain Antique Articles.—(1) Sections 4(d), 9(a), and 9(c) do
not apply to any article which—
(A) is not less than 100 years of age;
(B) is composed in whole or in part of any endangered spe-
cies or threatened species listed under section 4;
(C) has not been repaired or modified with any part of any
such species on or after the date of the enactment of this Act;
and
(D) is entered at a port designated under paragraph (3).
(2) Any person who wishes to import an article under the excep-
tion provided by this subsection shall submit to the customs officer
concerned at the time of entry of the article such documentation as
the Secretary of the Treasury, after consultation with the Secre-
tary of the Interior, shall by regulation require as being necessary
to establish that the article meets the requirements set forth in
paragraph (1) (A), (B), and (C).
(3) The Secretary of the Treasury, after consultation with the
Secretary of the Interior, shall designate one port within each cus-
toms region at which articles described in paragraph (1) (A), (B),
and (C) must be entered into the customs territory of the United
States.
(4) Any person who imported, after December 27, 1973, and on or
before the date of the enactment of the Endangered Species Act
Amendments of 1978, any article described in paragraph (1)
which—
(A) was not repaired or modified after the date of importa-
tion with any part of any endangered species or threatened
species listed under section 4;
(B) was forfeited to the United States before such date of the
enactment, or is subject to forfeiture to the United States on
such date of enactment, pursuant to the assessment of a civil
penalty under section 11; and
(C) is in the custody of the United States on such date of en-
actment;
may, before the close of the one-year period beginning on such date
of enactment make application to the Secretary for return of the
article. Application shall be made in such form and manner, and
contain such documentation, as the Secretary prescribes. If on the
basis of any such application which is timely filed, the Secretary is
satisfied that the requirements of this paragraph are met with re-
spect to the article concerned, the Secretary shall return the arti-
cle to the applicant and the importation of such article shall, on
and after the date of return, be deemed to be a lawful importation
under t' ct.
37
(1) Noncommercial Transshipments.—Any importation into the
United States of fish or wildlife shall, if—
(1) such fish or wildlife was lawfully taken and exported
from the country of origin and country of reexport, if any;
(2) such fish or wildlife is in transit or transshipment
through any place subject to the jurisdiction of the United
States en route to a country where such fish or wildlife may be
lawfully imported and received;
(3) the exporter or owner of such fish or wildlife gave explicit
instructions not to ship such fish or wildlife through any place
subject to the jurisdiction of the United States, or did all that
could have reasonably been done to prevent transshipment,
and the circumstances leading to the transshipment were
beyond the exporter's or owner's control;
(4) the applicable requirements of the Convention have been
satisfied; and
(5) such importation is not made in the course of a commer-
cial activity,
be an importation not in violation of any provision of this Act or
any regulation issued pursuant to this Act while such fish or wild-
life remains in the control of the United States Customs Service.
(j) Experimental Populations.—(1) For purposes of this subsec-
tion, the term "experimental population" means any population
(including any offspring arising solely therefrom) authorized by the
Secretary for release under paragraph (2), but only when, and at
such times as, the population is wholly separate geographically
from nonexperimental populations of the same species.
(2)(A) The Secretary may authorize the release (and the related
transportation) of any population (including eggs, propagules. or in-
dividuals) of an endangered species or a threatened species outside
the current range of such species if the Secretary determines that
such release will further the conservation of such species.
(B) Before authorizing the release of any population under sub-
paragraph (A), the Secretary shall by regulation identify the popu-
lation and determine, on the basis of the best available informa-
tion, whether or not such population is essential to the continued
existence of an endangered species or a threatened species.
(C) For the purposes of this Act, each member of an experimental
population shall be treated as a threatened species; except that—
(i) solely for purposes of section 7 (other than subsection
(a)(1) thereof), an experimental population determined under
subparagraph (B) to be not essential to the continued existence
of a species shall be treated, except when it occurs in an area
within the National Wildlife Refuge System or the National
Park System, as a species proposed to be listed under section 4;
and
(ii) critical habitat shall not be designated under this Act for
any experimental population determined under subparagraph
(B) to be not essential to the continued existence of a species.
(3) The Secretary, with respect to populations of endangered spe-
cies or threatened species that the Secretary authorized, before the
date of the enactment of this subsection, for release in geographical
areas separate from the other populations of such species, shall de-
termine by regulation which of such populations are a- crimen-
-------
38
tal population for the purposes of this subsection and whether or
not each is essential to the continued existence of an endangered
species or a threatened species.
PENALTIES AND ENFORCEMENT
Sec. 11. (a) Civil Penalties.—(1) Any person who knowingly vio-
lates, and any person engaged in business as an importer or export-
er of fish, wildlife, or plants who violates, any provision of this Act,
or any provision of any permit or certificate issued hereunder, or of
any regulation issued in order to implement subsection (aXD(A),
(B), (C), (D), (E), or (F), (a)(2XA), (B), (C), or (D), (c), (d) (other than
regulation relating to recordkeeping or filing of reports), (f), or (g)
of section 9 of this Act, may be assessed a civil penalty by the Sec-
retary of not more than $25,000 for each violation. Any person who
knowingly violates, and any person engaged in business as an im-
porter or exporter of fish, wildlife, or plants who violates, any pro-
vision of any other regulation issued under this Act may be as-
sessed a civil penalty by the Secretary of not more than $12,000 for
each such violation. Any person who otherwise violates any provi-
sion of this Act, or any regulation, permit, or certificate issued
hereunder, may be assessed a civil penalty by the Secretary of not
more than $500 for each such violation. No penalty may be as-
sessed under this subsection unless such person is given notice and
opportunity for a hearing with respect to such violation. Each vio-
lation shall be a separate offense. Any such civil penalty may be
remitted or mitigated by the Secretary. Upon any failure to pay a
penalty assessed under this subsection, the Secretary may request
the Attorney General to institute a civil action in a district court of
the United States for any district in which such person is found,
resides, or transacts business to collect the penalty and such court
shall have jurisdiction to hear and decide any such action. The
court shall hear such action on the record made before the Secre-
tary and shall sustain his action if it is supported by substantial
evidence on the record considered as a whole.
(2) Hearings held during proceedings for the assessment of civil
penalties by paragraph (1) of this subsection shall be conducted in
accordance with section 554 of title 5, United States Code. The Sec-
retary may issue subpoenas for the attendance and testimony of
witnesses and the production of relevant papers, books, and docu-
ments, and administer oaths. Witnesses summoned shall be paid
the same fees and mileage that are paid to witnesses in the courts
of the United States. In case of contumacy or refusal to obey a sub-
poena served upon any person pursuant to this paragraph, the dis-
trict court of the United States for any district in which such
person is found or resides or transacts business, upon application
by the United States and after notice to such person, shall have ju-
risdiction to issue an order requiring such person to appear and
give testimony before the Secretary or to appear and produce docu-
ments before the Secretary, or both, and any failure to obey such
order of the court may be punished by such court as a contempt
thereof.
(3) Notwithstanding any other provision of this Act, no civil pen-
alty shall be imposed if it can be shown by a preponderance of the
39
evidence that the defendant committed an act based on a good
faith belief that he was acting to protect himself or herself, a
member of his or her family, or any other individual from bodily
harm, from any endangered or threatened species.
(b) Criminal Violations.—(1) Any person who knowingly vio-
lates any provision of this Act, of any permit or certificate issued
hereunder, or of any regulation issued in order to implement sub-
section (a)(lXA), (B), (C), (D), (E), or (F); (a)(2)(A), (B), (C), or (D), (c),
(d) (other than a regulation relating to recordkeeping, or filing of
reports), (f), or (g) of section 9 of this Act shall, upon conviction, be
fined not more than $50,000 or imprisoned for not more than one
year, or both. Any person who knowingly violates any provision of
any other regulation issued under this Act shall, upon conviction,
be fined not more than $25,000 or imprisoned for not more than six
months, or both.
(2) The head of any Federal agency which has issued a lease, li-
cense, permit, or other agreement authorizing a person to import
or export fish, wildlife, or plants, or to operate a quarantine station
for imported wildlife, or authorizing the use of Federal lands, in-
cluding grazing of domestic livestock, to any person who is convict-
ed of a criminal violation of this Act or any regulation, permit, or
certificate issued hereunder may immediately modify, suspend, or
revoke each lease, license, permit, or other agreement. The Secre-
tary shall also suspend for a period of up to one year, or cancel,
any Federal hunting or fishing permits or stamps issued to any
person who is convicted of a criminal violation of any provision of
this Act or any regulation, permit, or certificate issued hereunder.
The United States shall not be liable for the payments of any com-
pensation, reimbursement, or damages in connection with the
modification, suspension, or revocation of any leases, licenses per-
mits stamps, or other agreements pursuant to this section.
(3) Notwithstanding any other provision of this Act, it shall be a
defense to prosecution under this subsection if the defendant com-
mitted the offense based on a good faith belief that he was acting
to protect himself or herself, a member of his or her family, or any
other individual, from bodily harm from any endangered or threat-
ened species.
(c) District Court Jurisdiction.—The several district courts of
the United States; including the courts enumerated in section 460
of title 28, United States Code, shall have jurisdiction over any ac-
tions arising under this Act. For the purpose of this Act, American
Samoa shall be included within the judicial district of the District
Court of the United States for the District of Hawaii.
(d) Rewards and Certain Incidental Expenses.—The Secretary
or the Secretary of the Treasury shall pay, from sums received as
penalties, fines, or forfeitures of property for any violation of this
chapter or any regulation issued hereunder (1) a reward to any
person who furnishes information which leads to an arrest, a crimi-
nal conviction, civil penalty assessment, or forfeiture of property
for any violation of this chapter or any regulation issued hereun-
der, and (2) the reasonable and necessary costs incurred by any
person in providing temporary care for any fish, wildlife, or plant
pending the disposition of any civil or criminal proceeding alleging
a violation of this chapter with respect to that fish, wildlife, or
-------
40
plant. The amount of the reward, if any, is to be designated by the
Secretary or the Secretary of the Treasury, as appropriate. Any of-
ficer or employee of the United States or any State or local govern-
ment who furnishes information or renders service in the perform-
ance of his official duties is ineligible for payment under this sub-
section. Whenever the balance of sums received under this section
and section 6(d) of the Act of November 16, 1981 (16 U.S.C. 3375(d))
as penalties or fines, or from forfeitures of property, exceed
$500,000, the Secretary of the Treasury shall deposit an amount
equal to such excess balance in the cooperative endangered species
conservation fund established under section 6(i) of this Act.
(e) Enforcement.—(1) The provisions of this Act and any regula-
tions or permits issued pursuant thereto shall be enforced by the
Secretary, the Secretary of the Treasury, or the Secretary of the
Department in which the Coast Guard is operating, or all such Sec-
retaries. Each such Secretary may utilize by agreement, with or
without reimbursement, the personnel, services, and facilities of
any other Federal agency or any State agency for purposes of en-
forcing this Act.
(2) The judges of the district courts of the United States and the
United States magistrates may within their respective jurisdic-
tions, upon proper oath or affirmation showing probable cause,
issue such warrants or other process as may be required for en-
forcement of this Act and any regulation issued thereunder.
(3) Any person authorized by the Secretary, the Secretary of the
Treasury, or the Secretary of the Department in which the Coast
Guard is operating, to enforce this Act may detain for inspection
and inspect any package, crate, or other container, including its
contents, and all accompanying documents, upon importation or ex-
portation. Such persons may make arrests without a warrant for
any violation of this Act if he has reasonable grounds to believe
that the person to be arrested is committing the violation in his
presence or view and may execute and serve any arrest warrant,
search warrant, or other warrant or civil or criminal process issued
by any officer or court of competent jurisdiction for enforcement of
this Act. Such person so authorized may search and seize, with or
without a warrant, as authorized by law. Any fish, wildlife, proper-
ty, or item so seized shall be held by any person authorized by the
Secretary, the Secretary of the Treasury, or the Secretary of the
Department in which the Coast Guard is operating pending disposi-
tion of civil or criminal proceedings, or the institution of an action
in rem for forfeiture of such fish, wildlife, property, or item pursu-
ant to paragraph (4) of the subsection; except that the Secretary
may, in lieu of holding such fish, wildlife, property, or item, permit
the owner or consignee to post a bond or other surety satisfactory
to the Secretary, but upon forfeiture of any such property to the
United States, or the abandonment or waiver of any claim to any
such property, it shall be disposed of (other than by sale to the gen-
eral public) by the Secretary in such a manner, consistent with the
purposes of this Act, as the Secretary shall by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold, pur-
chased, offered for sale or purchase, transported, delivered, re-
ceived, carried, shipped, exported, or imported contrary to the pro-
visions o1" tliis Act, any regulation made pursuant thereto, or any
41
permit or certificate issued hereunder shall be subject to forfeiture
to the United States.
(B) All guns, traps, nets, and other equipment, vessels, vehicles,
aircraft, and other means of transportation used to aid the taking,
possessing, selling, purchasing, offering for sale or purchase, trans-
porting, delivering, receiving, carrying, shipping, exporting, or im-
porting of any fish or wildlife or plants in violation of this Act, any
regulation made pursuant thereto, or any permit or certificate
issued thereunder shall be subject to forfeiture to the United States
upon conviction of a criminal violation pursuant to section ll(bXl)
of this Act.
(5) All provisions of law relating to the seizure, forfeiture, and
condemnation of a vessel for violation of the customs laws, the dis-
position of such vessel or the proceeds from the sale thereof, and
the remission or mitigation of such forfeiture, shall apply to the
seizures and forfeitures incurred, or alleged to have been incurred,
under the provisions of this Act, insofar as such provisions of law
are applicable and not inconsistent with the provisions of this Act;
except that all powers, rights, and duties conferred or imposed by
the customs laws upon any officer or employee of the Treasury De-
partment shall, for the purposes of this Act, be exercised or per-
formed by the Secretary or by such persons as he may designate.
(6) The Attorney General of the United States may seek to enjoin
any person who is alleged to be in violation of any provision of this
Act or regulation issued under authority thereof.
(f) Regulations.—The Secretary, the Secretary of the Treasury,
and the Secretary of the Department in which the Coast Guard is
operating, are authorized to promulgate such regulations as may be
appropriate to enforce this Act, and charge reasonable fees for ex-
penses to the Government connected with permits or certificates
authorized by this Act including processing applications and rea-
sonable inspections, and with the transfer, board, handling, or stor-
age of fish or wildlife or plants and evidentiary items seized and
forfeited under this Act. All such fees collected pursuant to this
subsection shall be deposited in the Treasury to the credit of the
appropriation which is current and chargeable for the cost of fur-
nishing the services. Appropriated funds may be expended pending
reimbursement from parties in interest.
(g) Citizen Suits.—(1) Except as provided in paragraph (2) of this
subsection any person may commence a civil suit on his own
behalf—
(A) to enjoin any person, including the United States and
any other governmental instrumentality or agency (to the
extent permitted by the eleventh amendment to the Constitu-
tion), who is alleged to be in violation of any provision of this
Act or regulation issued under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to section
6(g)(2)(B)(ii) of this Act, the prohibitions set forth in or author-
ized pursuant to section 4(d) or section 9(a)(1)(B) of this Act
with respect to the taking of any resident endangered species
or threatened species within any State; or
(C) against the Secretary where there is alleged a failure of
the Secretary to perform any act or duty under section 4 which
is not discretionary with the Secretary.
-------
42
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce
any such provision or regulation or to order the Secretary to per-
form such act or duty, as the case may be. In any civil suit com-
menced under subparagraph (B) the district court shall compel the
Secretary to apply the prohibition sought if the court finds that the
allegation that an emergency exists is supported by substantial evi-
dence.
(2)(A) No action may be commenced under subparagraph (1)(A) of
this section—
(i) prior to sixty days after written notice of the violation has
been given to the Secretary, and to any alleged violator of any
such provision or regulation;
(ii) if the Secretary has commenced action to impose a penal-
ty pursuant to subsection (a) of this section; or
(iii) if the United States has commenced and is diligently
prosecuting a criminal action in a court of the United States or
a State to redress a violation of any such provision or regula-
tion.
(B) No action may be commenced under subparagraph (1KB) of
this section—
(i) prior to sixty days after written notice has been given to
the Secretary setting forth the reasons why an emergency is
thought to exist with respect to an endangered species or a
threatened species in the State concerned; or
(ii) if the Secretary has commenced and is diligently pros-
ecuting action under section 6(gX2XB)(ii) of this Act to deter-
mine whether any such emergency exists.
(C) No action may be commenced under subparagraph (IXC) of
this section prior to sixty days after written notice has been given
to the Secretary; except that such action may be brought immedi-
ately after such notification in the case of an action under this sec-
tion respecting an emergency posing a significant risk to the well-
being of any species of fish or wildlife or plants.
(3)(A) Any suit under this subsection may be brought in the judi-
cial district in which the violation occurs.
(B) In any such suit under this subsection in which the United
States is not a party, the Attorney General, at the request of the
Secretary, may intervene on behalf of the United States as a
matter of right.
(4) The court, in issuing any final order in any suit brought pur-
suant to paragraph (1) of this subsection, may award costs of litiga-
tion (including reasonable attorney and expert witness fees) to any
party, whenever the court determines such award is appropriate.
(5) The injunctive relief provided by this subsection shall not re-
strict any right which any person (or class of persons) may have
under any statute or common law to seek enforcement of any
standard or limitation or to seek any other relief (including relief
against the Secretary or a State agency).
(h) Coordination With Other Laws.—The Secretary of Agricul-
ture and the Secretary shall provide for appropriate coordination
of the administration of this Act with the administration of the
animal quarantine laws (21 U.S.C. 101-105, lll-135b, and 612-614)
and section 306 of the Tariff Act of 1930 (19 U.S.C. 1306). Nothing
43
in this Act or any amendment made by this Act shall be construed
as superseding or limiting in any manner the functions of the Sec-
retary of Agriculture under any other law relating to prohibited or
restricted importations or possession of animals and other articles
and no proceeding or determination under this Act shall preclude
any proceeding or be considered determinative of any issue of fact
or law in any proceeding under any Act administered by the Secre-
tary of Agriculture. Nothing in this Act shall be construed as su-
perseding or limiting in any manner the functions and responsibil-
ities of the Secretary of the Treasury under the Tariff Act of 1930,
including, without limitation, section 527 of that Act (19 U.S.C.
1527), relating to the importation of wildlife taken, killed, pos-
sessed, or exported to the United States in violation of the laws or
regulations of a foreign country.
ENDANGERED PLANTS
Sec. 12. The Secretary of the Smithsonian Institution, in conjunc-
tion with other affected agencies, is authorized and directed to
review (1) species of plants which are now or may become endan-
gered, or threatened and (2) methods of adequately conserving such
species, and to report to Congress, within one year after the date of
the enactment of this Act, the results of such review including rec-
ommendations for new legislation or the amendment of existing
legislation.
CONFORMING AMENDMENTS
Sec. 13. (a) Subsection 4(c) of the Act of October 15, 1966 (80 Stat.
928, 16 U.S.C. 668dd(c)), is further amended by revising the second
sentence thereof to read as follows: "With the exception of endan-
gered species and threatened species listed by the Secretary pursu-
ant to section 4 of the Endangered Species Act of 1973 in States
wherein a cooperative agreement does not exist pursuant to section
6(c) of that Act, nothing in this Act shail be construed to authorize
the Secretary to control or regulate hunting or fishing of resident
fish and wildlife on lands not within the system."
(b) Subsection 10(a) of the Migratory Bird Conservation Act (45
Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the Act of
June 15, 1935 (49 Stat. 383, 16 U.S.C. 715s(a)) are each amended by
striking out "threatened with extinction," and inserting in lieu
thereof the following: "listed pursuant to section 4 of the Endan-
gered Species Act of 1973 as endangered species or threatened spe-
ties."
(c) Section 7(aXl) of the Land and Water Conservation Fund Act
of 1965 (16 U.S.C. 4601-9(aXU) is amended by striking out:
"Threatened Species.—For any national area which may be
authorized for the preservation of species of fish or wildlife
that are threatened with extinction." and inserting in lieu
thereof the following:
"Endangered Species and Threatened Species.—For lands,
waters, or interests therein, the acquisition of which is author-
ized under section 5(a) of the Endangered Species Act of 1973,
needed for the purpose of conserving endangered or threatened
species of fish or wildlife or plants."
-------
44
(d) The first sentence of section 2 of the Act of September 28,
1962, as amended (76 Stat. 653, 16 U.S.C. 460k-l), is amended to
read as follows:
"The Secretary is authorized to acquire areas of land, or in-
terests therein, which are suitable for—
"(1) incidental fish and wildlife-oriented recreational develop-
ment;
"(2) the protection of natural resources;
"(3) the conservation of endangered species or threatened
species listed by the Secretary pursuant to section 4 of the En-
dangered Species Act of 1973; or
"(4) carrying out two or more of the purposes set forth in
paragraphs (1) through (3) of this section, and are adjacent to,
or within, the said conservation areas, except that the acquisi-
tion of any land or interest therein pursuant to this section
shall be accomplished only with such funds as may be appro-
priated therefor by the Congress or donated for such purposes,
but such property shall not be acquired with funds obtained
from the sale of Federal migratory bird hunting stamps."
(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-
1407) is amended—
(1) by striking out "Endangered Species Conservation Act of
1969" in section 3(1)(B) thereof and inserting in lieu thereof the
following: "Endangered Species Act of 1973";
(2) by striking out "pursuant to the Endangered Species Con-
servation Act of 1969" in section 101(a)(3)(B) thereof and insert-
ing in lieu thereof the following: "or threatened species pursu-
ant to the Endangered Species Act of 1973";
(3) by striking out "endangered under the Endangered Spe-
cies Conservation Act of 1969" in section 102(b)(3) thereof and
inserting in lieu thereof the following: "an endangered species
or threatened species pursuant to the Endangered Species Act
of 1973"; and
(4) by striking out "of the Interior and revisions of the En-
dangered Species List, authorized by the Endangered Species
Conservation Act of 1969," in section 202(a)(6) thereof and in-
serting in lieu thereof the following: "such revisions of the en-
dangered species list and threatened species list published pur-
suant to section 4(c)(1) of the Endangered Species Act of 1973".
(f) Section 2(1) of the Federal Environmental Pesticide Control
Act of 1972 (Public Law 92-516) is amended by striking out the
words "by the Secretary of the Interior under Public Law 91-135"
and inserting in lieu thereof the words "or threatened by the Sec-
retary pursuant to the Endangered Species Act of 1973".
REPEALER
Sec. 14. The Endangered Species Conservation Act of 1969 (sec-
tions 1 through 3 of the Act of October 15, 1966, and sections 1
through 6 of the Act of December 5, 1969; 16 U.S.C. 668aa—668cc-
6), is repealed.
45
AUTHORIZATION OF APPROPRIATIONS
Sec. 15. (a) In General.—Except as provided in subsections (b),
(c), and (d), there are authorized to be appropriated—
(1) not to exceed $35,000,000 for fiscal year 1988. 336,500,000
for fiscal year 1989, $38,000,000 for fiscal year 1990, $39,500,000
for fiscal year 1991, and $41,500,000 for fiscal year 1992 to
enable the Department of the Interior to carry out such func-
tions and responsibilities as it may have been given under this
Act*
(2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000 for
each of fiscal years 1989 and 1990, and $6,750,000 for each of
fiscal years 1991 and 1992 to enable the Department of Com-
merce to carry out such functions and responsibilities as it
may have been given under this Act; and
(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000 for
each of fiscal years 1989 and 1990, and $2,600,000 for each of
fiscal years 1991 and 1992, to enable the Department of Agri-
culture to carry out its functions and responsibilities with re-
spect to the enforcement of this Act and the Convention which
pertain to the importation or exportation of plants.
(b) Exemptions From Act.—There are authorized to be appropri-
ated to the Secretary to assist him and the Endangered Species
Committee in carrying out their functions under section 7 (e), (g)
and (h) not to exceed $600,000 for each for fiscal years 1988, 1989,
1990, 1991, and 1992.
(c) Convention Implementation.—There are authorized to be
appropriated to the Department of the Interior for purposes of car-
rying out section 8A(e) not to exceed $400,000 for each of fiscal
years 1988, 1989, and 1990, and $500,000 for each of fiscal years
1991 and 1992, and such sums shall remain available until expend-
ed.
effective date
Sec. 16. This Act shall take effect on the date of its enactment.
MARINE MAMMAL PROTECTION ACT OF 1972
Sec. 17. Except as otherwise provided in this Act, no provision of
this Act shall take precedence over any more restrictive conflicting
provision of the Marine Mammal Protection Act of 1972.
ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE
Sec. 18. On or before January 15, 1990, and each January 15
thereafter, the Secretary of the Interior, acting through the Fish
and Wildlife Service, shall submit to the Congress an annual report
covering the preceding fiscal year which shall contain—
(1) an accounting on a species by species basis of all reason-
ably unidentifiable Federal expenditures made primarily for
the conservation of endangered or threatened species pursuant
to this Act; and
(2) an accounting on a spec;es by species basis for all reason-
ably identifiable expenditures made primarily for the conserva-
tion of endangered or threatened species pursuant to this Act
by states receiving grants under section 6.
tr U. S. Government Printing Office: 1990 • 258-990 (20159)
-------
EPA Endangered Species Coordinators
Regional Offices
1) Doug Thompson
Region 1
Office of Ecosystems Protection
JFK Federal Building
One Congress Street
Boston, MA 02203
617-565-3480
fax 617-565-4940
2) Bob Witte
Strategic Planning and Multimedia Programs Branch
Division of Environmental Planning and Protection
EPA Region 2
290 Broadway, 25th Floor
New York NY 10007
212-637-3750
fax 212-637-3548
3) Susan McDowell
Assessment and Protection Division
3EP10
EPA Region 3
841 Chestnut Street
Philadelphia PA 19107
215-566-2739.
fax 215-566-2782
4) John Hamilton
EPA Region 4
Office of Environmental Assessment
100 Alabama Street
Atlanta, GA 3 03 03
404-562-9617
404-562-9637 (voice mail)
fax 404-562-9598
5) John Schneider
Office of Strategic Environmental Analysis
EPA Region 5
77 West Jackson Boulevard
Chicago, IL 60604-3590
312-886-0880
fax 312-353-5374
-------
6) Yvonne Vallette
Ecosystems Protection Branch
EPA Region 6
144 5 Ross Avenue
12th Floor, Suite 1200 (WQ-E)
Dallas, TX 75270
214-665-6420
Fax 214-665-6689
7) Greg McCabe
EPA Region 7
Water, Wetlands, and Pesticides Division
WWPD-4PCB
726 Minnesota Avenue
Kansas City KS 66101
913-551-7709
Fax 913-551-7765
8) Edward L. Stearns
Ecosystems Protection Program, Planning Unit
EPA Region 8
999 18th Street
Suite 500
Denver, CO 80202-2466
303-312-6946
Fax 303-312-7084
9) Allen Demorest
EPA Region 9
Pesticides
75 Hawthorne Street (A-4-1)
San Francisco CA 94105
415-744-1096
fax 415-744-1073 (fax)
10) Vacant
EPA Region 10
1200-6th Avenue, ECO-088
Seattle WA 98101
206-553-
fax 206-553-
-------
EPA Endangered Species Contacts
Headquarters Program Offices
1) Larry Turner
Office of Pesticide Programs
703-305-5007
703-305-6309 (fax)
(mailcode 7507C)
2) Denise Keehner
Office of Pollution Prevention and Toxics
260-3749
260-8168 (fax)
(7405)
3) Jeff Peterson
Office of Hater
260-3722
260-5711 (fax)
(4101)
4) Wil Wilson
Office of Air
260-5574
(6101)
and Radiation
5) Jackie Tenusak
Office of Solid Waste
260-9433
260-8929 (fax)
(5103)
and Emergency Response
6) Mike Troyer
Office of Research and Development
513-569-7399
513-569-7589 (fax)
(8105)
7) Jim Serfis
Office of Enforcement and Compliance Assurance
260-7072
260-0129 (fax)
(2252)
-------
8) Molly Whitworth
Office of Policy, Planning, and Evaluation
260-7561
260-2300 (fax)
(2124)
9) Tom Marshall
Office of General Counsel
260-5326
(2378)
10) Steve Young (Rep)
Office of Administration
and Resources Management
703-235-5593
703-557-3186 (fax)
(3405R)
11) Christopher Hoff
Office of Congressional
260-5414
260-0516 (fax)
(1303)
and Legislative affairs
-------
EPA ORC/OGC Endangered Species Contacts
Office of
Reaional Counsel
Region/
Name
Phone
Number
Fax Number
1
Ken Moraff
(617)
565-3317
(617)
565-1141
2
Phyllis Feinmark
(212)
637-3232
(212)
637-3202
3
Heather Torres
(215)
597-0376
(215)
597-3235
4
Craig Higgason
(404)
347-2641
Ext. 2269
(404)
347-4568
5
Liz Murphy/
Steve Mason
(312)
886-0748
(312)
886-7160
886-0747
6
Pat Rankin
(214)
665-2159
(214)
665-2182
7
Tim Amsden
(913)
551-7405
(913)
551-7925
8
Peggy Livingston
(303)
294-7551
(303)
294-7500
9
Tom Hagler/
Suzette Leith
(415)
744-1375
744-1373
(415)
744-1041
10
Adrienne Allen
(206)
553-8694
(206)
553-0163
Office of
General Counsel
Air
Mike Thrift
(202)
260-7709
Water
Steve Neugeboren
(202)
260-6596
(202)
260-7702
RCRA/Superfund
Charles Openchowski(202)
260-7706
Grants
Susanne Lee
(202)
260-1484
(202)
260-8393
Contracts
Ken Pakula
(202)
260-6601
Pesticides and Toxics —
Laurel Celeste
(703)
235-5307
(703)
235-5350
International —
Peter Lallas
(202)
260-8881
(202)
260-3828
Intergovernmental —
Tom Marshall
(202)
260-5326
(202)
260-8393
-------
Region 5
as Of 5/22/95
ECOLOGICAL SERVICES
LIST or ADDRESSES AMD TELEPHONE NUMBERS FOR FIELD UD) SUBFXELD OrTICES
STATION
STATION NO. fflONENQi
SECRETARY
BUDCET PERSON
NEW ENGLAND m il OFFICE (NEFO)
U.S. FISH AND WILDLIFE SERVICE
22 BRIDGE STREET, UNIT II
CONCORD, NH 03301-4916
MIKE BAJntBTT
53410 PHONE: 609-225-1411 Jeuauoe Dub* But Hytiop
FAX: 603-225-1467
CCMAIL: R5ES.NEFO
CCMAIL OB INFORMATION (Tina Stefekia): R5ESJ4EFO.GB
wFwiragvwBf nftfFifT. (NJPO)
U.S. FBH AND WILDLIFB SERVICE
927 NORTH MAIN ST.. BLDG. D
PLBASANTVILLB.NI 08232-1454
CUFF DAY
wwvn»g Fm nnwrnt (NYFO)
Ui. FBH AND WILDLIFB SERVICE
3817 LUKER ROAD
CORTLAND, NY 13045
SHBUtf MOMGAS
52421
52410
PHONE: 609-646-0620
OR 9310, (511,9311
FAX: 609-646-0352
CCMAIL; R5ES NJFO
PHONE: 607-753-9334
FAX: 607-753-9699
CCMAIL: R5ES NYFO
Laura R. Perfect
MaganPdcb
Marilyn Mania
T/wr. xq iwn ww n twnev. MfA m(EPAO)
U.S. FBH AND WILDLIFE SERVICE
11 HAP ARNOLD BOULEVARD
BOX H
TOBYHANNA. FA 1S466-OOK
JABSD MSANDWSIM
52423 PHONE: 717-894-1275
FAX: 717-194-1281
CCMAIL: R5ES EPPO
Erie* BirfiBiwi Erica
MOPE ISLAND FTTiJ) OffWT
U.S. FBH AND WILDLIFB SERVICE
NINGRET NATIONAL WILDLIFB REFUGE
SHORELINE PLAZA, ROUTE 1A
P.O. BOX 307
CHARLETTOWN, RI0E2S13
GSSC MAffffSSTO
53410 PHONE: 401-364-9124
FAX: 401-364-0170
CCMAIL: R5ES R1FO
Aidaa H.
Deborah A. Tn
DELAWARE BAY EflVAKY nWJECC (D»)
U J. FBH AND WILDLIFB SERVICE
2610 WHITEHALL NECK ROAD
SMYRNA, DB 19977
BDCHJUSTOFFBMS (As**)
SUM PHONE: 302-653-9152
FAX: 302-653-9421
CCMAIL: R5BS DBEF
-------
STATION
STATION NO. PHONE NO.
SECRETARY BUDGET PET
VIRGINIA FIELD OFFICE (VAPO)
U.S. FISH AND WILDLIFE SERVICE
MID-COUNTY CENTER. U-S- ROUTE 17
P.O. BOX 480
WHITE MARSH, VA 231 £3-0*80
KAMBN HAYNB
WEST VIRGINIA FIELD OFFICE (WVFO)
U.S. FISH AND WILDUFE SERVICE
ROUTE 250, SOUTH
ELHNS SHOPPING PLAZA
BLKINS, WV 26241-1278
CHRIS CLOWBM
S14U PHONE: 104-693-6694
FAX: 804-693-9032
CCMA1L: R5ES_VAFO
51412 PHONE: 304436-65S6
FAX: 304436-7824
CCMAIL: R5ES.WVFO
Ntacy P. Bub Xim P. Miyn^l
Tiaci L. Kaigfet Traci L. Knight
SOUTHWESTERN VTBGINI> vm n nwtrg r«wwn
(VAPO) NaacyP. Bmu
P. O. BOX 2345
ABINGDON. VA 24210
ROBERTA HYLTON
51411
PHONE: 703-623-1233 or 1185
Nancy P. BtKt
FAX: 703-623-11U
CCMAIL: R5ES SVFO
(SWVO SHIPPING ADDRESS: 252 W. Main St., AbtagdoD. VA 24210)
CULT OP MAINE ESTUARY PROJECT (OCW7) 51140
U.S. FISH AND WILDUFE SERVICE
GULF OF MAINE COASTAL
AND ESTUARY PROJECT
4 R FUNDY ROAD
FALMOUTH. ME 041QS
S7BWAXT FBFFBM
PHONE: 207-711-1364 Cbatyl Boiavwt dtuji Bouvwt
FAX: 207-7114369
CCMAIL: R5ES GGMF
CCMAIL G1S INFORMATTON: R5ES GOMP.OIS
S. NEW ENGLAND ESTUARY
U.S. FISH AND WILDUFE SERVICE
NINHRET NATIONAL WILDUFE REFUGE
SHORELINE PLAZA, ROUTE 1A
P.O. BOX 307
CHARLESTOWN. RI02S13
JOSEPH DOWHAN
(SNEF) 51130
PHONE: 401-364-9124
FAX: 401-364-0170
CCMAIL: R5ES SNENYBCBP
Airin H.
Dabonh A. Tr
CHESAPEAKE BAY FIELD OFFICE (CBFO)
U.S. FISH AND WILDUFE SERVICE
177 ADMIRAL COCHRANE DRIVE
ANNAFOLB. MD 21401
JOBS WOLFLIN
51410 PHONE: 410-573-4500
FAX: 410-224-2781 or
410-269-0832
CCMAIL: R5ES CBFO
PM Woe
410-573-4575
410-573-4567
MAINE FIELD OFFICE (MEPO)
U.S. FISH AND WILDUFE SERVICE
1033 SOUTH MAIN STREET
OLD TOWN. MB 0446S
GORDON RUSSBLL
53411 PHONE: 207-427-5938
FAX: 207-827-6099
CCMAIL: R5ES MFO
Hotty
HoUy
v^ynMTtFiJtnwtrg (VTPO)
U.S. FISH AND WILDUFE SERVICE
WINSTON PROUTY FEDERAL BUILDING
11 LINCOLN STREET
ESSEX JUNCTION. VT 05452
(Nat a tnta (laid offic* • MtaUfca of NEFO. Oo4y BS wptoy— at VTPO ia Lam Ewna)
PHONE: 802-951-6313
FAX: 802-951-6315
CCMAIL: R5ES.VTFO
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUN I 0 1994
OFFICE OF
THE ADMINISTRATOR
MEMORANDUM
SUBJECT: EPA's Endangered Species Protection Strategy
FROM: Robert Sussman, Deputy Administrate
FROM: Robert Sussman, Deputy Administrate:
TO:
Assistant Administrators
Regional Administrators
General Counsel
Regional Counsels
Office Directors
The attached Strategy has been prepared as a part of our
effort to strengthen EPA's commitment to protecting endangered
species. I want to emphasize the importance of this Strategy in
meeting our obligations under the Endangered Species Act (ESA)
and in finding innovative and effective ways to enhance the
conservation of threatened and endangered species. By taking the
actions described in the Strategy, we will develop an Agency-wide
endangered species program that can offer significant
environmental benefits.
A great deal of effort has been put into devising a flexible
approach that reflects the needs of the programs and regions.
The steps described in the Strategy include review, planning and
actions to be taken that address how we will construct a
comprehensive EPA endangered species program. Timelines and
assignments are given in the Strategy.
With your support we will be able to take fuller advantage
of opportunities to use EPA's authorities to conserve biological
diversity, protect ecosystems, and meet our legal
responsibilities under the ESA. A copy of the Strategy is also
being forwarded to each program and regional office
representative on the Endangered Species Coordinating Committee.
Any questions should be directed to Jim Serfis in the Office of
Federal Activities at 202-260-7072.
Attachment
Printed on Recycled Paper
-------
EPA's Endangered Species Protection Strategy
Introduction
The following Agency-wide strategy has been developed to
increase EPA's contribution to the conservation of federally
listed endangered and threatened species (endangered species).
This will occur by using EPA programs to protect endangered
species and the ecosystems on which they depend and by
implementing EPA's responsibilities under the Endangered Species
Act (ESA).
The Strategy is based on the recognition that EPA's
authorities and responsibilities afford many opportunities to
play an active role in endangered species conservation. EPA will
protect endangered species by using its regulatory authority, its
non-regulatory programs, its responsibility to monitor
environmental indicators, and its research programs. The Agency-
wide strategy will, where appropriate, strengthen our commitment
to endangered species conservation within the broader context: of
EPA's emerging focus on ecosystem protection.
Development of an Agency Endangered Species Program
The broad goals of this Strategy are to insure that actions
authorized, funded, or carried out by EPA are not likely to
jeopardize listed species or adversely affect designated critical
habitat; to utilize EPA programs to promote the recovery of
listed species and avoid future listings by protecting candidate
species; to increase the efficiency with which EPA meets its ESA
obligations; to conserve endangered species in ways that are
sensitive to resource constraints; to maintain native biological
diversity; and to protect the ecosystems upon which endangered
species depend.
The Strategy includes review, planning, and actions to be
taken by program and regional offices; tasks to be undertaken by
the Office of Federal Activities (OFA), the Office of Policy,
Planning, and Evaluation (OPPE), and the Office of General
Counsel (OGC) in support of these efforts; and cooperative
endeavors with the Fish and Wildlife Service and National Marine
Fisheries Service (Services). Additional support will be given
by the Endangered Species Coordinating Committee (ESCC). The
ESCC is composed of representatives from each program and
regional office. The role of the ESCC is to act as a source of
expertise and a sounding board during the development and
implementation of the strategy, as a network for program and
regional input to decisions being made, and as a vehicle to share
information. Logistical and planning support for the ESCC will
be given by a core group made up of OFA, OPPE, and OGC.
-------
The following actions will support the development and
implementation of an Agency-wide strategy. Responsibility for
each action is given, where appropriate, to program and regional
offices or the Endangered Species Coordinating Committee (ESCC).
Actions to be Taken
1) Development of regional- and program-specific plans.
Each regional and program office will develop a draft plan
to layout the actions, processes, and procedures to fully
implement EPA's responsibilities under the ESA and to further the
conservation of endangered species. These plans are to be
constructed to fit the needs of the individual program and
regional offices, while being consistent with protecting
endangered species. The plans will be reviewed and updated, if
necessary, on a annual basis.
Since regional plans will be based on program plans, the
program offices will submit their plans first, which will be used
by the regions to develop their own plans. Regional plans, in
addition to including the information below, should stress taking
a more ecosystem oriented approach to protecting endangered
species.
The draft plans will be reviewed by the ESCC to ensure that
the best ideas from each are shared and that there is appropriate
consistency in the approaches. Program office draft plans are to
be submitted to the ESCC bv October 1. 1994. The draft regional
plans will be due six months after the completion of the draft
program plans and a short review bv the ESCC. Final program
plans will be submitted by August 1, 1995 and final regional
plans three months after their completion and review. Please
send submissions to Jim Serfis, Office of Federal Activities
(mailcode, 2252). The ESCC will take responsibility for
delivering the program submissions to one contact in each region.
Draft plans should be process-oriented and as specific as
possible. The following information should be contained in each
draft plan:
A. a listing of the types of actions that are currently
consulted on, types of actions that will be consulted on in
the future, and types of actions that need further review to
determine whether they require consultation
B. a description of current or proposed written policy,
guidance, MOUs or other mechanism used to address ESA
requirements (copies should be attached)
C. current or proposed liaison functions with the Services
regarding ESA requirements and ecosystem protection efforts
D. suggestions on how your office or region will use an
-------
ecosystem approach for protecting endangered species, where
appropriate
E. internal procedures that would be followed to meet ESA
Section 7(a)(2) and Section 9 requirements. For example,
establishing a process for reviewing actions to determine
whether they affect endangered species and identifying how
the Services will be contacted for purposes of informal and
formal consultation.
F. a process to integrate endangered species considerations
into planning and budgeting
G. a listing of opportunities within your programs for
promoting the recovery of listed species, for protecting
candidate species, and for protecting the ecosystems upon
which listed species depend
H. a description of the information and data needs for
considering endangered species in EPA decisions
I. an approach on how your program or region will consider
endangered species in both current and new state assumed
programs
J. a schedule as to when specific actions described in the
plans will be undertaken
2) Support for taking an ecosystem approach to protecting
endangered species.
The ESCC will coordinate with the Agency's Ecosystem
Protection Taskforce. The Taskforce is to implement an Agency-
wide ecosystem protection plan. One possible way of coordinating
this effort is to emphasize an endangered species component in
the demonstration projects that evaluate the principles of
ecosystem management.
To assist in the development of plans, the ESCC will come up
with examples of ecosystem approaches that could apply to using
EPA programs to protect endangered species and to increasing the
efficiency of the consultation process. For instance, cross-
media actions could be taken in targeted ecosystems to protect a
number of endangered species at one time. Another example
includes the possibility of consulating on multiple actions that
occur in a geographic area rather than on individual actions.
3) Improving cooperation and resolving issues between the
Services and EPA.
Several resource and management issues of interest to EPA
will be resolved through discussions with the Services. The goal
of meetings between EPA and the Services will be to identify
-------
specific measures to streamline the consultation process and ways
to use EPA programs to protect threatened and endangered species.
This effort will begin with high level meetings to develop a
process for expeditious resolution of these and other issues.
The forums and mechanisms identified in the high level meetings
will then be implemented by the appropriate parties. One example
of a possible mechanism would be the development of counterpart
regulations to fine tune the general consultation regulations in
appropriate EPA program responsibilities while retaining their
overall degree of protection.
At the same time, a series of workshops will be held to
bring Service and EPA staff together to discuss ESA issues. Each
day-long workshop will focus on the activities of each program
office. The workshops will involve a description of each EPA
program, the Service's identification of potential endangered
species conflicts, suggestions for avoiding and dealing with the
conflicts, and fine tuning the plans developed in action number
one. The core group of the ESCC will sponsor the workshops and
each AAship will provide adequate technical staff and managers to
support each session.
4) Legal Responsibilities and Obligations
OGC will work closely with program and regional offices to
resolve legal issues for EPA programs and describe the
obligations of the Endangered Species Act relevant to EPA
activities together with available mechanisms to improve
management of these obligations. This guidance would include,
but not be limited to, the following:
- key procedural and substantive obligations under the ESA
relevant to EPA, including Section 7 conference
requirements, consultation, no jeopardy provisions,
affirmative conservation provisions, and Section 9
prohibitions on "take"
- review of common legal issues under the ESA relevant to
EPA, including how the ESA may apply to certain types of EPA
activities (i.e., permitting, rule making, EPA approval and
oversight of state programs, etc.,).
5) Using EPA Programs to Protect Endangered Species
The ESCC, with assistance from program and regional offices,
will begin to identify additional opportunities to use EPA
programs to promote the conservation of endangered species under
7(a)l of the ESA. These considerations should be included in the
regional and program plans and discussed in meetings and
workshops. In addition, several other forums will be used to
generate opportunities, including brainstorming sessions with
program staff, solicitation of suggestions from the Services and
outside experts, and workshops.
-------
6) Educational Programs
Educational programs will be undertaken to train EPA and the
Services regarding EPA responsibilities and opportunities under
the Act. Discussions with the Services will be initiated to
consider support for training and to tap into existing training.
Initially, this effort would start with short courses followed by
the establishment of more long-term training programs.
7) Development of Information and Tools
The Office of Research and Development will, in cooperation
with the Services, work with program offices to identify and
develop information and tools needed to make credible scieritific
decisions regarding the protection of ESA species.
8) Accessing Needed Information
The Office of Administration and Resources Management (OARM)
will provide core, common-use information such as data bases of
listed and candidate species, occurrence locations, and critical
habitat locations. OARM will also provide supporting information
technologies, such as geographic information system analytical
tools and base data coverage, and access via the Internet
computer network to other entities' information holdings.
9) Centralized Agency-wide Functions
Options will be developed for centralized Agency-wide
functions that would be administered by the Office of Federal
Activities. Such options could include core staffing with
regional counterparts to serve as a source of expertise and
clearinghouse for information; database management, in
coordination with OARM, to benefit all programs and regions;
liaison function with the Services; and coordination of
counterpart regulations or guidance between agencies. The ESCC
will develop options for structuring these functions within the
next three months.
10) Management Planning and Actions
Management plans and actions will be adjusted to include
endangered species activities into program planning. This
includes amending work load models, SPINs, and budget planning.
These adjustments are to be considered in the regional and
program plans. Further suggestions would be made as the plans
are implemented.
-------
t A \
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR "2 199^
THEADMJN5TRAT0R
MEMORANDUM
SUBJECT: EPA's Role in the Protection of Endangered Species
The protection of endangered and threatened species is
integral to the mission of the Environmental Protection Agency.
With predictions of 20 percent of animal and plant species
becoming extinct within the next 30 years, the maintenance of
biodiversity has never been more urgent. Resources protected by
the EPA are of critical value to the survival of endangered
species, and I believe we must combine efforts to conserve
biodiversity with our traditional focus on enhancing the quality
of the natural environment.
As you know, I initiated an effort to strengthen our
commitment to protecting endangered species on October 29, 1993.
This effort is being carried out by the Endangered Species
Coordinating Committee (ESCC) under the direction of the Deputy
Administrator. One of our first steps was a workshop held on
January 12th and 13th, 1994, to clarify the mandates of the
Endangered Species Act (ESA), to exchange experiences dealing
with endangered species issues to date, and to outline steps to
be taken to better meet our responsibilities under the Act.
Bob Sussman has reported to me that the workshop was a great
success; the discussion was very candid and many important issues
were raised. I would like to restate some principles and
suggested actions from the workshop and then describe the next
steps.
Endangered Species Principles
EPA has a strong commitment to the protection and
conservation of biodiversity and endangered species and their
habitats. The scope of our authorities and responsibilities
affords us an opportunity to play a major role in this regard.
EPA can protect biodiversity through its regulatory authority,
its emerging focus on ecosystem protection, its responsibility to
TO:
Assistant Administrators
Regional Administrators
Office Directors
Recycled/Recyclable
f), Mnw) "1th SoyCanol* Ink on paper th»l
. X~~IC7 contain* at laan S?*ii rscycfed fiber
-------
2'
monitor environmental indicators, and its research programs.
Several suggestions were made at the workshop that could support
our commitment. It was suggested that more training and research
be done so that we better understand the steps needed to protect
endangered species. Several other excellent recommendations
resulting from the workshop were using endangered species as an
environmental indicator, considering these species as we set
environmental standards, and targeting our enforcement actions
based on biodiversity concerns.
As the world's leading environmental regulator, EPA should
take its legal responsibilities under the Act seriously. For
this reason, EPA Regions and programs must become better informed
about the legal requirements of the Act. While fulfilling our
legal responsibilities under the Act, we must also devise
innovative approaches that make our compliance more substantive
and efficient. In this regard, workshop attendees suggested that
we identify the priority areas needing improvement in the
consultation process. It was also suggested that a process be
developed to elevate and resolve issues between our Agency and
the Fish and Wildlife Service and National Marine Fisheries
Service (Services) . Another component mentioned was the
possibility of counterpart regulations which would allow the
Agency to tailor the consultation process to reflect the
requirements of EPA programs. All of these suggestions have
merit and should be considered.
No single Agency is capable of protecting biodiversity nor
is there one single law to achieve those ends. Rather, we must
work with other federal agencies to develop a comprehensive
approach. For this reason, fostering a productive relationship
with the Services is a high priority. To accomplish this
objective, it was suggested that we establish working contacts
with the Services at many different levels. One particularly
good recommendation was to hold a joint retreat to explain how
each of our programs operate, share the problems associated with
consultation, and discuss how to improve how we work together.
I know that we are facing difficult choices as the Agency
simultaneously copes with streamlining, budget constraints, and
other uncertainties. We will need to find innovative techniques
for maximizing protection of endangered species wisely using our
limited resources.
Next Steps
I have instructed the ESCC, under the direction of the
Deputy Administrator, to continue to develop an Agency-wide
strategy to implement our responsibilities under the ESA using
ideas from the workshop. The broad goals of the strategy are to
better meet our obligations under the Act, to improve the
efficiency of meeting those obligations, to afford better
-------
3
protection to endangered species, and ultimately, to protect the
ecosystems upon which endangered species depend.
An important component of the strategy is the development of
regional- and program-specific plans. Bob Sussman will be
sending a memorandum to you and your endangered species
coordinator in the next several weeks that will give more details
regarding the content, construction, and timing of these plans.
Emphasizing innovative approaches, the plans are to be
constructed to fit the needs of the individual program and
regional offices, while retaining consistency with general Agency
policy on endangered species. The Office of General Counsel has
stepped forward to assist program and regional offices in
developing plans to meet our responsibilities under the Act and
to use the legal mechanisms available to improve management of
these obligations.
The strategy will also contain many other necessary
elements, including an action plan for improving relations with
the Services, the development of model approaches to consultation
that focus on ecosystems, and educational programs. As we
develop the strategy, we should also be thinking about how our
Agency can go from relying on the fiSA as a safety net to using
our authorities to protect biodiversity, and eventually whole
ecosystems. I look forward to work' ' Tfort.
Carol M. Browner
-------
5SEy
'v-
'*£ »SO,t
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
OCI 2 3 13b.
THE ADMINISTRATOR
MEMORANDUM
Subject: EPA Roles and Responsibilities under the Endangered
Species Act
To: Assistant Administrators
Regional Administrators
The Environmental Protection Agency has a vital role to play
in protecting ecosystems and biological diversity. I have made
ecosystem protection one of my highest priorities for EPA- The
Endangered Species Act (ESA) is an important tool in achieving
this goal because it is designed to protect not only endangered
species but the ecosystems upon which these species depend.
Based on the endangered species background paper submitted to my
office, EPA has a significant role to play in the preservation of
endangered and threatened species, but we must take concrete
steps to ensure that our ESA obligations are consistently
implemented.
In order to strengthen EPA's commitment to protecting
endangered species, I have asked the Endangered Species
Coordinating Committee (ESCC) under the direction of Deputy
Administrator, Bob Sussman, to assist EPA in developing a.process
to more efficiently and effectively undertake our ESA
responsibilities. We are expanding the Committee to include
representatives from Region 9, the lead region for this effort,
and the program offices. The Committee's task will be to improve
the consistency and effectiveness of EPA's efforts to implement
its ESA obligations. A focus of this improvement will be to
increase endangered species protection without overburdening the
resources of the Agency.
As a first step, we are asking the Assistant Administrators
and Region 9 to appoint a person to the Committee who is
knowledgeable about your ESA implementation activities and is
able to represent your office in this effort. In addition, we
-------
2
request that management for all offices participate in a workshop
organized by the Deputy Administrator's Office that will take
place in early January. Office Directors from each Headquarters
Program and at least one Division Director in each Region should
plan to attend. The intent of the workshop will be to clarify
the ESA Section 7 consultation, affirmative conservation and
Section 9 provisions, to exchange information and experiences to
date, and to outline steps to be taken to improve our management
of ESA obligations.
These steps could involve the development of guidance on the
consultation process, negotiation of additional program-specific
MOU's with the Fish-and Wildlife Service, and the National Marine
Fisheries Service, and agreements with the Services to streamline
the consultation process. They could also include steps that EPA
could take to implement the ESA's affirmative conservation
provision.
Please forward the names and phone numbers of your ESCC
representative and workshop attendees by November 10, 1993 to Jim
Serfis, Office of Federal Activities (mail code 2253, (202) 260-
7072).
-------
STATEMENT OF CAROL M. BROWNER
ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
before the
COMMITTEE ON MERCHANT MARINE AND FISHERIES
U.S. HOUSE OF REPRESENTATIVES
APRIL 1, 1993
Mr. Chairman and Members of the Subcommittee: I am grateful
for the opportunity to appear here today with colleagues
Secretary Babbitt and Secretary Espy. The fact that leaders of
several Federal agencies are testifying together underscores both
the complexity of the problem we face, and the importance of
Federal interagency cooperation in solving it. No single agency
is capable of protecting biological diversity and natural
habitat. No single law gives us the tools necessary to achieve
those ends. Rather, all the relevant Federal agencies, together
with state and local governments, tribes, businesses,
environmentalists and the public, will have to join hands and
apply the full range of tools at our disposal, if we are to
protect and nurture these invaluable resources.
The Environmental Protection Agency, in partnership with our
fellow Federal agencies, has a vital role in protecting
biological diversity and ecosystems. When EPA was established in
1970, it was premised on the perception that the environment is
"a single, interrelated system." Many of the laws that we
administer, like the Clean Water Act and the Federal Insecticide,
Fungicide, and Rodenticide Act, clearly contribute to the
protection of species and ecosystems. Whenever EPA has acted to
control acid rain, clean up waste sites, construct sewage
-------
treatment plants, or prohibit the use of certain pesticides, we
have — implicitly or explicitly — helped preserve biological
diversity and natural habitat.
Yet, clearly, we have to do more. Despite our demonstrable
successes —like reducing the sulfur emissions that lead to acid
rain, reducing flows of nitrogen and phosphates into surface
waters, and banning the use of DDT — natural habitat in this
country is still seriously stressed. From the mudflats of the
Pacific Northwest, to the tall grass prairies of the Midwest, to
the Everglades of my own home state of Florida, natural
ecosystems are under siege. And thousands of species that depend
on them are stressed at best, and threatened with extinction at
worst.
What we are seeing in this country is happening around the
world at alarming rates. Prominent scientists now are predicting
that as much as 20 percent of total global biodiversity may be
extinct within the next 30 years, if current rates of habitat
destruction continue.
Because of the ongoing degradation of natural systems in
this country, EPA is placing more emphasis on the protection of
habitat — both for its own sake, and because of its role in
protecting the quality of human life. This is exactly the advice
given to EPA by the Science Advisory Board (SAB) in its 1990
report, Reducing Risk. The SAB's recommendations are based on a
belief that ecosystems, and the biological diversity they
support, have an intrinsic value beyond their direct utility to
2
-------
humans. At the same time, the health of humans and the health of
ecosystems are inextricably linked. As the SAB wrote in their
report: "...there is no doubt that over time the quality of
human life declines as the quality of natural ecosystems
declines."
There are many opportunities in our programs to foster the
health of ecosystems. We have established Environmental
Monitoring and Assessment Program (EMAP) to measure trends in the
health of ecosystems and anticipate emerging threats. We have
undertaken several initiatives targeted at specific geographic
areas, focusing protection on the entire ecosystem, like the Gulf
of Mexico, the Chesapeake Bay and the Great Lakes. The watershed
approach is becoming a top priority in our water program. Under
the Clean Water Act EPA oversees the States in establishment of
and compliance with water quality standards, including standards
designed to protect aquatic life. The Act contains other
provisions that relate to aquatic life, including designation of
Outstanding Natural Resource Waters of exceptional ecological
significance, to which special protections apply. As a part of
the National Estuary Program, EPA coordinates development of
conservation and comprehensive management plans to restore and
protect the water quality and ecological resources of significant
estuaries.
These initiatives and others like them involve partnerships
among Federal agencies, state and local governments, and non-
governmental organizations at the ecosystem level. They can
3
-------
benefit immensely from the coordinated support of strengthened
leadership of the Federal agencies here today. The Clinton
Administration is committed to that coordinated approach.
In addition, we are developing a process for assessing
ecological risks much like the process we use for assessing human
health risks. Ecological risk assessment will help us identify
problems, set priorities, and provide a scientific basis for
decisions. While not an exact science, ecological risk
assessment will help formalize ecosystem concerns throughout EPA.
We will review EPA programs for further opportunities to
develop strategic options for protecting species and habitat in
the course of carrying out our statutory responsibilities. We
will find ways for EPA offices, both here in Washington and out
in the regions, to incorporate ecological components into their
ongoing programs. Perhaps most important, we will identify
opportunities for cooperation with other Federal agencies, state
governments, and private organizations.
Interagency cooperation, Federal/state cooperation, and
public/private cooperation are all essential to our national
effort to preserve habitat and nurture biodiversity. All of us
have responsibilities that pertain to ecosystem protection; all
of us have tools that can be used for that end. To be
successful, we have to coordinate our actions, leverage our
resources, and combine our expertise in ways that are most
effective for specific ecosystems. While I am Administrator of
4
-------
the Environmental Protection Agency, that is exactly what I
intend to do.
All Federal agencies need to join forces and form alliances
to protect our most important turf, the natural ecosystems that
sustain all forms of life on earth, including humanity.
This new approach should be the linchpin of national policy
regarding biological resources. The Federal Government needs to
protect the biological systems within which species exist. We
need to rethink the economic activities that threaten habitat.
We need to find new ways of achieving our economic goals while at
the same time preserving and protecting the natural ecosystems
that make all life — including human — possible.
I believe we can be successful, especially if Federal
agencies like the ones we represent do a better job working
together for a common end. I am confident that in the Clinton
Administration we will.
Thank you.
5
-------
Regional Endangered Species Coordinator Role
The Environmental Protection Agency (EPA) has made a strong
commitment to the protection and conservation of endangered
species. To fulfill this commitment, the Agency will need to
increase coordination on endangered species matters within the
Agency and between other agencies, provide support to EPA staff
to assist in both consultation and conservation efforts, and
acquire information needed to make decisions related to
endangered species.
A significant priority expressed by regional and program
offices is support needed to meet EPA's responsibilities under
the Endangered Species Act (ESA). These concerns are centered
primarily on the requirement to consult with the Fish and
Wildlife Service and the National Marine Fisheries Service
(Services). To reduce avoidable resource obligations and to
increase protection of endangered species, a comprehensive
approach has been instituted that designates one staff person to
be the Regional Endangered Species Coordinator for each region.
By concentrating knowledge and support functions in that one
coordinator, we have been more effective in our conservation
efforts.
The Endangered Species Coordinator has the following
responsibilities:
Point of contact
o Represents Region on Agency ESA workgroup.
o Represents the Region as the contact to EPA HQ, USFWS, and
public regarding general ESA issues.
o Responds to inquiries and requests related to ESA.
o Facilitates interaction within the Agency on endangered
species.
o Stays abreast of current EPA endangered species issues.
o Provides the National Endangered Species Coordinator
with reporting information on consultations, ESA issues,
etc.
Procedural Guidance
o Provides the regional office with procedural expertise.
o Assists media offices with ESA requirements and
procedures.
-------
o Interprets and stays abreast of administrative and
legislative changes to ESA procedures.
o Facilitates consultations, as appropriate.
o Participates in formal consultations.
Technical Assistance
o Supports media offices with technical assistance during
the consultation process.
o Assists media offices with biological information (i.e.,
collection, interpretation, and guidance).
o Facilitates consultations, as appropriate.
Information Coordination
o Identifies and collects useful, region-specific
information on endangered species such as recovery plans;
biological data; updated species listings; and scientific,
regulatory, and legal documents.
o Serves as a conduit of ESA information to regional
offices.
o Assists with efforts to place endangered species in GIS
form.
o Tracks consultation activities in the region.
o Attends public meetings and hearings, as appropriate.
o Prepares and reviews facts sheets on ESA information.
Interagency Coordination
o Acts as liaison with the Fish and Wildlife Service and
National Marine fisheries Service on general endangered
species issues.
o Serves as liaison with other agencies and organizations
(State and tribal governments, NGOs, interest groups, and
the public) on general endangered species issues.
o Facilitates and participates in collaborative conservation
efforts with other organizations.
o Assists the Services and other agencies in understanding
EPA programs.
o Assists in setting up meetings between EPA program staff
and the Services, as appropriate.
-------
o Assists in resolving endangered species related
disagreements with the Services.
Recovery Coordination
o Facilitates/chairs initiatives and projects that conserve
and recovery endangered species using EPA's authorities.
o Identifies appropriate opportunities for interagency
cooperation.
o Assists in the development and implementation of Habitat
Conservation Plans, including participating on formal
recovery teams.
Training Function
o Conducts public education and outreach.
o Trains regional EPA staff on procedural and technical
aspects of ESA
o Represents the Agency during public speaking engagements
on the ESA.
-------
Endangered and Threatened
Wildlife and Plants
50 CFR 17.11 & 17.12
October 31, 1996
-------
1
Title 50—Wildlife and Fisheries
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
*****
Subpart 8—Lists
§ 17.11 Endangered and threatened
wildlife.
(a) The list in this section contains the
names of all species of wildlife which have
been determined by the Services to be
Endangered or Threatened. It also contains
the names of species of wildlife treated as
Endangered or Threatened because they are
sufficiently similar in appearance to
Endangered or Threatened species (see
117.50 et seq.).
(b) The columns entitled "Common
Name," "Scientific Name," and "Vertebrate
Population Where Endangered or
Threatened" define the species of wildlife
within the meaning of the Act Thus,
differently classified geographic populations
of the same vertebrate subspecies or species
shall be identified by their differing
geographic boundaries, even though the other
two columns are identical. The term "Entire"
means that all populations throughout the
present range of a vertebrate species are
listed. Although common names are included,
they cannot be relied upon for identification
of any specimen, since they may vary greatly
in local usage. The Services shall use the
most recently accepted scientific name. In
cases in which confusion might arise, a
synonym(s) will be provided in parentheses.
The Services shall rely to the extent
practicable on the International Code of
Zoological Nomenclature.
(c) In the "Status" column the following
symbols are used: "E" for Endangered, "T"
for Threatened, and "E [or T] (S/A)" for
similarity of appearance species.
(d) The other data in the list are
nonregulatory in nature and are provided for
the information of the reader. In the annual
revision and compilation of this title, the
following information may be amended
without public notice: the spelling of species'
names, historical range, footnotes, references
to certain other applicable portions of this
title, synonyms, and more current names. In
any of these revised entries, neither the
species, as defined in paragraph (b) of this
section, nor its status may be changed without
following the procedures of Part 424 of this
title.
(e) The "historic range" indicates the
known general distribution of the species or
subspecies as reported in the current scientific
literature. The present distribution may be
greatly reduced from this historic range. This
column does not imply any limitation on the
application of the prohibitions in the Act or
implementing rules. Such prohibitions apply
to all individuals of the species, wherever
found.
(f)(1) A footnote to the Federal Register
publication(s) listing or reclassifying a
species is indicated under the column "When
listed." Footnote numbers to §§ 17.11 and
17.12 are in the same numerical sequence,
since plants and animals may be listed in the
same Federal Register document. That
document, at least since 1973, includes a
statement indicating the basis for the listing,
as well as the effective date(s) of said listing.
(2) The "Special rules" and "Critical
habitat" columns provide a cross reference to
other sections in Parts 17, 222, 226, or 227.
The "Special rules" column will also be used
to cite the special rules that describe
experimental populations and determine if
they are essential or nonessential. Separate
listing will be made for experimental
populations, and the status column will
include the following symbols: "XE" for an
essential experimental population and "XN"
for a nonessential experimental population.
The term "NA" (not applicable) appearing in
either of these two columns indicates that
there are no special rules and/or critical
habitat for that particular species. However,
all other appropriate rules in Parts 17, 217
through 227, and 402 still apply to that
species. In addition, there may be other rules
in this title that relate to such wildlife, e.g.,
port-of-entry requirements. It is not intended
that the references in the "Special rules"
column list all the regulations of the two
Services which might apply to the species or
to the regulations of other Federal agencies
or State or local governments.
(g) The listing of a particular taxon
includes all lower taxonomic units. For
example, the genus Hylobates (gibbons) is
listed as Endangered throughout its entire
range (China, India, and SE Asia);
consequently, all species, subspecies, and
populations of that genus are considered
listed as Endangered for the purposes of the
Act.
(h) The "List of Endangered and
Threatened Wildlife" is provided below:
Editorial Note: This is a compilation and special
reprint of SO CFR 17.11 and 17.12 and is current
as of October 31,1996. This list has been prepared
by the staff of the Division of Endangered Species,
U.S. Fish and Wildlife Service, Washington, D.C.
20240. Readers are requested to advise (he
Information Branch of the Division of Endangered
Species of any errors in this special reprint
Internet Access: The List of Endangered a id
Threatened Wildlife and Plants is available
electronically using Internet E-Mail software. The
Internet address for this information is:
R9IRMLIB@mail.fws.gov
Retrieval commands (which must be entered on
the "SUBJECT" line) are: "Send T&E List" (for
an ASCII delimited file) and "Send T&E List
WP" (for the WordPerfect version).
A version of these lists that has been reformatted
for the World Wide Web (WWW) is available to
Web browsers in the "Species" area at the address:
http://www.fws.gov/-r9endspp/endspp.html
Special Reprint Symbols: To aid readers in
comparing this list with previous republications and
the last codification of Title 50, the Service has
inserted symbols in front of certain entries. These
symbols and their use are as follows:
+ —entry has been added by a published rule
since the October 31, 199S republication of the
List; see the "When Listed" number for citation.
•—entry has been amended by a published rule;
see the last "When Listed" number for citaticn.
These symbols are not included in the annual
codification.
NOTE: This Special Reprint is current
as of October 31, 1996.
4 US GOVERNMENT PRINTING OFFICE 1997-508-154
-------
Species
Common name
Mammals
Anoa, lowland
Anoa, mountain
Antelope, giant sable ....
Argali
Do
Armadillo, giant
Armadillo, pink fairy
Ass, African wild
Ass, Asian wild (=kulan, onager)
Avahi
Aye-aye
Babirusa
Baboon, gelada
Bandicoot, barred
Bandicoot, desert
Bandicoot, lesser rabbit
Bandicoot, pig-footed
Bandicoot, rabbit
Banteng
Bat, Bulmer's fruit (flying fox)
Bat, bumblebee
Bat, gray
Bat, Hawaiian hoary
Bat, Indiana
Bat, lesser (=Sanborn's) long-nosed ...
Bat, little Mariana fruit
Bat, Mariana fruit
Bat, Mexican long-nosed
Bat, Ozark big-eared
Bat, Rodrigues fruit (flying fox)
Bat, Singapore roundleaf horseshoe ...
Bat, Virginia big-eared
Bear, American black
Bear, Baluchistan
Bear, brown
Do
Bear, grizzly (=brown)
Bear, Louisiana black
Bear, Mexican grizzly
Scientific name
Bubalus depressicornis (=B. anoa
depressicornis).
Bubalus quarlesi (=B. anoa quarlasi)
Hlppotragus nlgar variant
Ovls ammon
do
Priodontes maximus (=glganteus) ..
Chlamyphonts truncatus
Equus asinus (=africanus)
Equus hembnus
Avahi (=Uchanotus) lanlger (=entire
genus).
Daubentonla madagascariensls
Babyrousa babyrussa
Theropithecus gelada
Perameles bougalnvillo
Perameles eremiana
Macrotis leucura
Chaeropus ecaudatus
Macrotis lagotls
Bos javanicus (=banteng)
Aproleles bulmerae
Craseonycteris thonglongyal
Myotis grisescens
Laslurus cinereus semotus
Myotis sodalis
Leptonycteris curasoae (=sanborni)
yerbabuenae.
Pteropus tokudae
Pteropus marlannus marlannus
Leptonycteris nivalis
Plecotus townsendii Ingens
Pteropus rodricensls
Hipposlderos ridleyi
Plecotus townsendii virglnlanus
Ursus americanus
Ursus thibetanus gedrosianus .
Ursus arctos arctos
Ursus arctos pruinosus
Ursus arctos
Ursus americanus luteolus ..
Ursus arctos (=U. a. nelsoni)
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
Special
rules
E
3
NA
NA
E
15
NA
NA
E
15
NA
NA
E
15, 475
NA
NA
T
15, 475
NA
17.40®
E
15
NA
NA
E
3
NA
NA
E
3, 22
NA
NA
E
3
NA
NA
E
3
NA
NA
E
3
NA
NA
E
15
NA
NA
T
16
NA
17.40(c)
E
4
NA
NA
E
6
NA
NA
E
4
NA
NA
E
4
NA
NA
E
4
NA
NA
E
3
NA
NA
E
139
NA
NA
E
139
NA
NA
E
13
NA
NA
E
2
NA
NA
E
1
17.95(a)
NA
E
336
NA
NA
E
156
NA
NA
E
156
NA
NA
E
336
NA
NA
E
85
NA
NA
E
139
NA
NA
E
139
NA
NA
E
85
17.95(a)
NA
T(S/A)
456
NA
17.40(i)
E
233
NA
NA
E
15. 15A
NA
NA
E
15
NA
NA
T
1, 2D, 9
NA
17.40(b)
T
456
NA
17.40(i)
E
3
NA
NA
Indonesia.
do
Angola
Afganistan, China, India, Kazakhstan,
Kyrgyzstan, Mongolia, Nepal, Paki-
stan, Russia, Tajikistan,
Uzbekistan.
do
Venezuela and Guyana to Argentina
Argentina
Somalia, Sudan, Ethiopia
Southwestern and Central Asia
Malagasy Republic (= Madagascar)
do
Indonesia
Ethiopia
Australia
do
do
do
do
Southeast Asia
Papua New Guinea
Thailand
Central and southeastern U.S.A. ...
U.S.A. (HI)
Eastern and Midwestern U.S.A
U.S.A. (AZ, NM), Mexico, Central
America.
Western Pacific Ocean—U.S.A.
(Guam).
Western Pacific Ocean—U.S.A.
(Guam, Rota, Tinian, Saipan,
Aglguan).
U.S.A. (NM, TX), Mexico, Central
America.
U.S.A. (MO, OK, AR)
Indian Ocean—Rodrigues Island ...
Malaysia
U.S.A. (KY, NC, WV, VA)
North America
Iran, Pakistan
Palearctic
China (Tibet)
Holarctic
U.S.A. (LA, MS, TX)
Holarctic
Entire
do
do
Entire except
Kyrgyzstan, Mon-
golia, and
Tajikistan.
Kyrgyzstan, Mongo-
lia, and Tajikistan.
Entire
do
Somalia, Sudan,
Ethiopia.
Entire
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
Guam
Entire
do
do
do
do
U.S.A. (LA, MS, TX)
Entire
Italy
Entire
U.S.A.,
conterminous
(lower 48) States.
Entire
Mexico
-------
Beaver
Bison, wood
Bobcat
Bontebok (antelope)
Camel, Bactrian
Caribou, woodland .
Cat, Andean
Cat, black-footed
Cat, flat-headed
Cat, Iriomote
Cat, leopard
Cat, marbled
Cat, Pakistan sand
Cat, Temminck's (=golden cat)
Cat, tiger
Chamois, Apennine
Cheetah
Chimpanzee, pygmy
Chimpanzee
Do
Chinchilla
Civet, Malabar large-spotted
Cochito (=Gulf of California harbor
porpoise).
Cougar, eastern
Deer, Bactrian
Deer, Barbary
Deer, Bawean
Deer, Cedros Island mule
Deer, Columbian white-tailed
Deer, Corsican red
Deer, Eld's brow-antlered
Deer, Formosan sika
Deer, hog
Deer, key
Deer, marsh
Deer, McNeill's
Deer, musk
Deer, North China sika
Castor fiber birulal
Bison bison athabascae
Felis rufus escuinapae
Damaliscus dorcas dorcas ...
Came/us bactrian us (={erus)
Rangifer tarandus caribou ...
Felis jacobita
Felis nigripes
Felis planiceps
Felis (Mayailurus) iriomotensis
Felis bengalensis bengalansis
Felis marmorata
Felis margarita scheffeli
Felis temmincki
Felis tigrinus
Rupicapra rupicapra ornata
Acinonyx Jubatus
Pan paniscus
Pan troglodytes
do
Chinchilla brevicaudata boliviana
Viverra megaspila civettina
Phocoana sinus
Felis concolor couguar
Cervus eiaphus bactrianus
Cervus eiaphus barbarus
Axis (=Cervus) porcinus kuhli
Odocoileus hemionus cedrosensis ...
Odocoileus virginianus ieucurus
Cervus eiaphus corsicanus
Cervus eldi
Cervus nippon taiouanus
Axis (=Cervus) porcinus annamiticus
Odocoileus virginianus clavium
Blastocerus dichotomus
Cervus eiaphus macneilil
Moschus spp. (all species)
Mongolia
Canada, northwestern U.S.A
Central Mexico
South Africa
Mongolia, China
U.S.A. (AK. ID, ME. Ml, MN, MT, NH.
VT, WA, Wl), Canada.
Cervus nippon mandarlnus .
Chile, Peru, Bolivia, Argentina
Southern Africa
Malaysia, Indonesia
Japan (Iriomote Island, Ryukyu Is-
lands).
India, Southeast Asia
Nepal, Southeast Asia, Indonesia ..
Pakistan
Nepal, China, Southeast Asia, Indo-
nesia (Sumatra).
Costa Rica to northern Argentina ...
Italy
Africa to India
Zaire
Africa-see 17.40(c)(3)
do
Bolivia
India
Mexico (Gulf of California)
Eastern North America
Tajikistan, Uzbekistan, Afghanistan
Morocco, Tunisia, Algeria
Indonesia
Mexico (Cedros Island)
U.S.A. (WA, OR)
Corsica, Sardinia
India to Southeast Asia
Taiwan
Thailand, Indochina
U.S.A. (FL)
Argentina, Uruguay, Paraguay, Bo-
livia, Brazil.
China (Sinkiang, Tibet)
Central and eastern Asia
China (Shantung and Chihli Prov-
inces^.
Entire
Canada
Entire
do
do
U.S.A. (ID, WA),
Canada (that part
of S.E. British Co-
lumbia bounded
by the U.S.-Can.
border, Columbia
R., Kootenay R.,
Kootenay L.,
andKootenai R ).
Entire
do
do
do
do
do
do
do
do
do
do
do
Wherever found in
the wild.
Wherever found In
captivity.
Entire
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
Afghanistan, Bhu-
tan, Burma, China
(Tibet, Yunnan),
India, Nepal,
Pakistan, Sikkim.
Entire
E
15
NA
NA
E
3
NA
NA
E
15
NA
NA
E
15
NA
NA
E
15
NA
NA
E
128E,
NA
NA
136E,
143
E
15
NA
NA
E
15
NA
NA
E
15
NA
NA
E
50
NA
NA
E
15
NA
NA
E
15
NA
NA
E
139
NA
NA
E
15
NA
NA
E
5
NA
NA
E
15
NA
NA
E
3, 5
NA
NA
E
16, 376
NA
NA
E
16, 376
NA
NA
T
16, 376
NA
17.40(c)
E
15
NA
NA
E
50
NA
NA
E
169
NA
NA
E
6
NA
NA
E
50
NA
NA
E
50
NA
NA
E
3
NA
NA
E
10
NA
NA
E
1
NA
NA
E
50
NA
NA
E
3
NA
NA
E
50
NA
NA
E
15
NA
NA
E
1
NA
NA
E
3
NA
NA
E
3
NA
NA
E
15
NA
NA
E
50
NA
NA
-------
Species
Common name
Deer, pampas
Deer, Persian fallow
Deer, Philippine
Deer, Ryukyu sika
Deer, Shansi sika
Deer, South China sika
Deer, swamp (=barasingha)
Deer, Visayan
Deer, Yarkand
Dhole (=Asiatic wild dog)
Dibbler
Dog, African wild
Dolphin, Chinese river (=whitefin)
Dolphin, Indus River
Drill
Dugong
Duiker, Jentink's
Eland, western giant
Elephant, African
Elephant, Asian
Ferret, black-footed
Do
Fox, northern swift
Fox, San Joaquin kit
Fox, Simien
Gazelle, Arabian
Gazelle, Clark's (=Dibatag)
Gazelle, Cuvier's
Gazelle, Mhorr
Gazelle, Moroccan (= Dorcas) ....
Gazelle, Pelzeln's
Gazelle, Rio de Oro Dama
Gazelle, sand
Gazelle, Saudi Arabian
Gazelle, slender-horned (=Rhim)
Gibbons
Goat, wild (=Chiltan markhor) ....
Goral
Gorilla
Hare, hispid
Hartebeest, Swayne's
Scientific name
Ozotoceros bezoartlcus
Dama dama mesopotamlca
Axis (^Cervus) porclnus
calamianensls.
Corvus nlppon keramae
Census nlppon grasslanus
Cervus nlppon kopschl
Corvus duvauceli
Cervus alfredl
Cervus elaphus yarkandensls
Cuon alplnus
Antechlnus aplcalis
Lycaon plctus
Llpotes vexillifer
Platanista minor
Paplo leucophaeus
Dugong dugon
Cephalophus Jentlnkl
Taurotragus derbianus derbianus
Loxodonta africana
Elephas maximus
Muslela nlgrlpes
.do
Vulpes velox hebes
Vulpes macrotis mutlca
Canis (Simenia) slmensis
Gazella gazella
Ammodorcas clarkel
Gazella cuvleri
Gazella dama mhorr
Gazella dorcas massaesyla
Gazella dorcas pelzelnl
Gazella dama lozanol
Gazella subgutturosa marica
Gazella dorcas saudiya
Gazella leptoceros
Hylobales spp. (including Nomascus)
Capra aegagrus (=falconeri)
chiltanensis.
Nemorhaedus goral
Gorilla gorilla
Caprolagus hlspldus
Alcelaphus buselaphus swaynel
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
Special
rules
E
15
NA
NA
do
E
3
NA
NA
do
E
15
NA
NA
do
E
50
NA
NA
do
E
50
NA
NA
do
E
50
NA
NA
do
E
3
NA
NA
do
E
320
NA
NA
do
E
50
NA
NA
do
E
3
NA
NA
do
E
4
NA
NA
E
139
NA
NA
do
E
350
NA
NA
do
E
417
NA
NA
do
E
16
NA
NA
Entire, except U.S.A
E
4
NA
NA
Entire
E
50
NA
NA
do
E
50
NA
NA
do
T
40
NA
17.40(e)
do
E
15
NA
NA
Entire, except where
E
1. 3,
NA
NA
listed as an ex-
433,
perimental popu-
545,
lation below.
546, 582
U.S.A. (specific por-
XN
433,
NA
17.84(g)
tions of MT, SD,
545,
WY, and AZ, see
546, 582
17.84(g)).
Canada
E
3
NA
NA
Entire
E
1
NA
NA
do
E
50
NA
NA
E
50
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
do
E
50
NA
NA
do
E
3
NA
NA
do
E
50
NA
NA
E
50
NA
NA
do
E
3
NA
NA
do
E
3, 15
NA
NA
Chiltan Range of
E
15
NA
NA
west-central Paki-
stan.
Entire
E
15
NA
NA
do
E
3
NA
NA
E
15
NA
NA
do
E
3,50
NA
NA
Brazil, Argentina, Uruguay, Bolivia,
Paraguay.
Iraq, Iran
Philippines (Calamlan Islands)
Japan (Ryukyu Islands)
China (Shansi Province)
Southern China
India, Nepal
Philippines
China (Sinkiang)
C.I.S., Korea, China, India, Southeast
Asia
Australia
Sub-Saharan Africa
China
Pakistan (Indus R. and tributaries) ....
Equatorial West Africa
East Africa to southern Japan, Includ-
ing U.S.A. (Trust Territories).
Sierra Leone, Liberia, Ivory Coast
Senegal to Ivory Coast
Africa
South-central and southeastern Asia
Western U.S.A., western Canada
do
U.S.A. (northern plains), Canada
U.S.A. (CA)
Ethiopia
Arabian Peninsula, Palestine, Sinai ...
Somalia, Ethiopia
Morocco, Algeria, Tunisia
Morocco
Morocco, Algeria, Tunisia
Somalia
Western Sahara
Jordan, Arabian Peninsula
Israel, Iraq, Jordan, Syria, Arabian
Peninsula.
Sudan, Egypt, Algeria, Libya
China, India, Southeast Asia
Southwestern Asia
East Asia
Central and western Africa
India, Nepal, Bhutan
Ethiopia, Somalia
-------
Hartebeest, Tora
Hog, pygmy
Horse, Przewalskl's
Huemul, north Andean .
Huemul, South Andean
Hutia, Cabrera's
Hutia. dwarl
Hutia, large-eared
Hutia, Irttle earth
Hyena, Barbery
Hyena, brawn
Ibex, Pyrenean
Ibex, Walia
Impala, black-laced .
Indri ... —
Jeguar
Jaguarundl
Do ......
Do ......
Do
Alceiaphus buselaphus tora ,
Sus saJvanius
Equus przewalskii
Hippocampus antisensis
Hlppocamefos bisulcus
Capromys angelcabraral
Capromys nana
Capromys auritus
Capromys santelipensis
Hyaena hyaena barbara
Hyaena bnutnea
Capra pyrenaica pyronalca ....
Capra watie
Aepycoros rnetampus peteisj
indtl frtdrjjserrira genus)
Panlhera unca .
Fefe ysgo jaroundi caccmHH
Felfs ysgauafoundi ftjssafa
Fefts yagouafournii panamensls
Fefis ysgouaroundi totteca
Kangaroo iat, Fresno i Dipadomy# nftr&tojdos sjcrfe
Kangaroo iat, giant
Kangaroo iat, Morro Bay ...
Kangaroo iat, Stephens' ....
Kangaroo iat, Tip tan
Kangaroo, Tasmanian forester
Kouprey
Langur, capped
Langur, Douc
Langur, entellus
Langur, Francois"
Langur, golden
Langur, long-tailed ...
Langur, Pagl Island ..
Langur, purple-faced
Lechwe, red
Lemurs
Leopard, clouded
Leopard, snow
Leopard
Dipc damys ingerns
DipcdojnyS haermann! morioertsis
Dipa domys & lepherrst (in d Q.
cascus).
Qipotfomys nftratokfes nltratoioes..
Macropus gigartleus tasmaniensis
Bos sauveli....
Prasbytis piteata
Pygathrix rtemaeus
Presbyfis entaDus
PresbyHs francolsl
Presbyt/s gee!
Prssbytis potenziani
Nasalis (Simias) concohr
Presbytia senex
Kobus lectio
Lemuridae (ind. genera Lemur,
Phanar, Hapalernur. Lepilemur,
Microcebus, Aliocsbus,
Chelrogateus, Varecla.
Neotelis nebubsa ...
Pandora oncia ...
Panlhora pardus
Ethiopia, Sudan, Egypt
India, Nepal, Bhutan, Sikkim
Mongolia, China
Ecuador, Peru, Chile, Bolivia, Argen-
tina.
Chile, Argentina
Cuba
do
do
do
Morocco, Algeria, Tunisia
Southern Africa
Spain
Ethiopia -
Namibia* Angola
Malagasy Republic (-Madagascar) .
U S A 5,
NA
106
E
3, 15,
NA
15A
E
3, 15
NA
E
5
NA
E
3, 5, 114
NA
-------
Species
Common name
Scientific name
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
Special
rules
T
3, 5,114
NA
17.40(f)
E
15
NA
NA
E
3
NA
NA
T(S/A)
432
NA
17.40(h)
T
16
NA
17.40(c)
E
3
NA
NA
T
16
NA
17.40(c)
T
16
NA
17.40(c)
E
3
NA
NA
T
16
NA
17.40(c)
T
16
NA
17.40(c)
E
3
NA
NA
T
52
NA
NA
E
1.3
17.95(a)
17.108
(a)
E
16
NA
NA
E
3
NA
NA
E
16
NA
NA
E
5
NA
NA
E
15
NA
NA
E
15
NA
NA
E
139
NA
NA
E
233
NA
NA
E
16
NA
NA
E
3
NA
NA
E
139
NA
NA
E
4
NA
NA
E
4
NA
NA
E
4
NA
NA
E
3
NA
NA
E
16
NA
NA
T
16
NA
17.40(c)
E
16
NA
NA
E
400
NA
NA
E
15
NA
NA
E
16
NA
NA
E
139
NA
NA
E
15
NA
NA
E
3
NA
NA
e\
Do
..do
..do
Unsang, spotted
Lion, Asiatic
Lion, mountain
Loris, lesser slow
Lynx, Spanish
Macaque, Formosan rock
Macaque, Japanese
Macaque, lion-tailed
Macaque, stump-tailed
Macaque, Toque
Manatee, Amazonian
Manatee, West African
Manatee, West Indian (=Florida) ..
Mandrill
Mangabey, Tana River
Mangabey, white-collared
Margay
Markhor, Kabal
Markhor, straight-horned
Marmoset, buff-headed
Marmoset, buffy tufted-ear
Marmoset, cotton-top
Marmoset, Goeldi's
Marmot, Vancouver Island
Marsupial, eastern jerboa
Marsupial-mouse, large desert
Marsupial-mouse, long-tailed
Marten, Formosan yellow-throated
Monkey, black colobus
Monkey, black howler
Monkey, Diana
Monkey (=langur), Guizhou snub-
nosed.
Monkey, howler
Monkey, L'hoest's
Monkey, Preuss' red colobus
Monkey, proboscis
Monkey, red-backed squirrel
Prionodon pardicolor
Panthera too perslca
Felis concolor (all subsp. except
coryl).
Nycticebus pygmaeus
Fells (=Lynx) pardlna
Macaca cyclopia
Macaca fuscata
Macaca silenus
Macaca arctoldes
Macaca slnlca
Trichechus inunguls
Trichechus senegalensis
Trichechus manatus
Paplo sphinx
Cercocebus galerltus
Cercocebus torquatus
Felis wiedii
Capra falconer! megaceros
Capra falconer! jerdonl
Calllthrix flaviceps
Callithrix jacchus aurita ....
Saguinus oedipus
Callimico goeldii
Marmota vancouvarensls
Antechtnomys laniger
Smlnthopsis psammophila
Smlnthopsls longicaudata
Maries flavigula chrysospila
Colobus satanas
Alouatta pigra
Cercopithecus diana
Rhinopithecus (=Pygathrix) brelichl
Alouatta palliata (=villosa)
Cercopithecus Ihoestl
Colobus badius preussl -
Nasalis larvatus
Salmirl oersted!!
Nepal, Assam, Vietnam, Cambodia,
Laos, Burma.
Turkey to India
Canada to South America
Indochina
Spain, Portugal
Taiwan
Japan (Shikoku, Kyushu and Honshu
Islands).
India
India (Assam) to southern China
Sri Lanka
South America (Amazon R. basin) ....
West Coast of Africa from Senegal
R. to Cuanza R..
U.S.A. (southeastern), Caribbean
Sea, South America.
Equatorial West Africa
Kenya
Senegal to Ghana; Nigeria to Gabon
U.S.A. (TX), Central and South
America.
Afghanistan, Pakistan
do
Brazil
do
Costa Rica to Colombia
Brazil, Colombia, Ecuador, Peru, Bo-
livia.
Canada (Vancouver Island)
Australia
do
do
Taiwan
Equatorial Guinea, People's Republic
of Congo, Cameroon, Gabon.
Mexico, Guatemala, Belize
Coastal West Africa
China
Mexico to South America
Upper eastern Congo R. Basin, Cam-
eroon.
Cameroon
Borneo
Costa Rica, Panama
In Africa, In the wild,
south of, and in-
cluding, the fol-
lowing countries:
Gabon, Congo,
Zaire, Uganda,
Kenya.
Entire
do
U.S.A. (FL)
Entire .
do
do
do
..do
..do
..do
..do
..do
..do
do
do
do
Mexico southward
Entire .
do
do
do
do
do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
-------
Monkey, red-bellied
Monkey, red-eared nose-spotted .
Monkey (=langur), Sichuan snub-
nosed.
Monkey, spider
Do
Monkey, Tana River red colobus
Monkey (=langur), Tonkin snub-nosed
Monkey, woolly spider
Monkey, yellow-tailed woolly
Monkey (=langur), Yunnan snub-
nosed.
Monkey, Zanzibar red colobus
Mountain beaver, Point Arena
Mouse, Alabama beach
Mouse, Anastasla Island beach
Mouse, Australian native
Do
Mouse, Choctawahatchee beach
Mouse, Field's
Mouse, Gould's
Mouse, Key Largo cotton
Mouse, New Holland ..
Mouse, Pacific pocket .
Mouse, Perdido Key beach .
Mouse, salt marsh harvest ..
Mouse, Shark Bay
Mouse, Shortridge's
Mouse, Smoky
Mouse, southeastern beach
Mouse, western
Muntjac, Fea's
Native-cat, eastern
Numbat
Ocelot
Orangutan
Oryx, Arabian
Otter, Cameroon clawless
Otter, giant
Otter, long-tailed
Otter, marine
Otter, southern river
Otter, southern sea
Do
CercopHhecus erythrogaster
CercopHhecus erythrolis
RhinopHhecus (=Pygathrlx) roxeliana
Ateles geoffroyi irontatus
Ateles geoffroyi panamensis
Colobus rufomitratus (=badius)
rufomitratus.
Rhinoptthecus (=Pygathrix) avunculus
Brachyteles arachnoides
Lagothrix fiavtcauda
Rhinoptthecus (=Pygathrlx) bletl
Colobus kirkl
Apbdontla rufa nigra
Peromyscus polionotus ammobates .
Peromyscus polionotus phasma
Notomys aquilo
Zyzomys (=Notomys) pedunculatus .
Perowyscus polionotus allophrys
Pseudomys field!
Pseudomys gouldii
Peromyscus gossypinus atlapaticola
Pseudomys novaehollandiae
Perognathus longimembris pacificus
Peromyscus polionotus trissyllepsis .
Reithrodontomys raviventris
Pseudomys praeconis
Pseudomys shortridgei
Pseudomys fumeus
Peromyscus polionotus niveiventris ..
Pseudomys occidentalis
Muntiacus feae
Dasyurus vrverrinus
Myrmecobius fasciatus
Felis pardalis
Panda, giant
Pangolin (=scaly anteater)
Pongo pygmaeus
Oryx ieucoryx
Aonyx (Paraonyx) congica mlcradon
Pteronura brasiliensis
Lutra longicaudis (incl. platensis]
Lutra felina
Lutra provocax
Enhydra lutris nereis
.do
Ailuropoda melanoleuca
Manis temmincki
Western Nigeria
Nigeria, Cameroon, Fernando Po
.do
Costa Rica, Nicaragua
Costa Rica, Panama ...
Kenya
Vietnam
Brazil
Andes of northern Peru
China
Tanzania ....
U.S.A. (CA)
U.S.A. (AL) .
U.S.A. (FL) .
Australia
do
U.S.A. (FL) .
Australia
do
U.S.A. (FL) ,
Australia
U.S.A. (CA)
U.S.A. (AL. FL)
U.S.A. (CA)
Australia
do
do
U.S.A. (FL)
Australia
Northern Thailand, Burma
Australia
do
U.S.A. (AZ, TX) to Central and South
America.
Borneo, Sumatra
Arabian Peninsula
Cameroon, Nigeria
South America
do
Peru south to Straits of Magellan
Chile, Argentina
West Coast, U.S.A. (CA, OR, WA)
south to Mexico (Baja California).
do
China
Africa
..do
E
16
NA
NA
..do
E
16
NA
NA
..do
E
400
NA
NA
..do
E
3
NA
NA
..do
E
3
NA
NA
..do
E
3
NA
NA
..do
E
16, 400
NA
NA
..do
E
3
NA
NA
..do
E
16
NA
NA
..do
E
400
NA
NA
..do
E
3
NA
NA
..do
E
454
NA
NA
..do
E
183
17.95(a)
NA
..do
E
349
NA
NA
..do
E
15
NA
NA
..do
E
15
NA
NA
..do
E
183
17.95(a)
NA
..do
E
4
NA
NA
...do
E
6
NA
NA
...do
E
131 E,
NA
NA
160
..do
E
4
NA
NA
..do
E
526E,
NA
NA
554
...do
E
183
17.95(a)
NA
...do
E
2
NA
NA
...do
E
4
NA
NA
...do
E
4
NA
NA
...do
E
4
NA
NA
...do
T
349
NA
NA
...do
E
4
NA
NA
...do
E
50
NA
NA
...do
E
6
NA
NA
...do
E
4,6
NA
NA
E
5, 119
NA
NA
...do
E
3
NA
NA
...do
E
3
NA
NA
...do
E
3
NA
NA
E
3
NA
NA
E
3, 15
NA
NA
E
15
NA
NA
E
15
NA
NA
ntire, except where
T
21, 284
NA
NA
listed below.
II areas subject to
XN
21. 284
NA
17.84(d)
U.S. Jurisdiction
south of Pt. Con-
ception, CA
(34*26.9' N. Lat.)
[Note—status
governed by Pub.
L. 99-625, 100
Stat. 3500.].
ntire
E
139
NA
NA
E
15
NA
NA
-------
Species
Common name
Scientific name
Panther, Florida
Planigale, little ,
Planlgale, southern
Porcupine, thin-spined
Possum, Leadbeater's
Possum, mountain pygmy ...
Possum, scaly-tailed
Prairie dog, Mexican
Prairie dog, Utah
Pronghorn, peninsular
Pronghorn, Sonoran
Pudu
Puma, Costa Rican
Quokka
Rabbit, Lower Keys
Rabbit, Ryukyu
Rabbit, volcano
Rat, false water
Rat, stick-nest
Rat-kangaroo, brush-tailed .
Rat-kangaroo, Gaimard's ....
Rat-kangaroo, Lesuer's
Rat-kangaroo, plain
Rat-kangaroo, Queensland .
Rhinoceros, black
Rhinoceros, great Indian ....
Rhinoceros, Javan
Rhinoceros, northern white .
Rhinoceros, Sumatran
Rice rat (=silver rice rat)
Saiga, Mongolian (antelope)
Saki, southern bearded
Saki, white-nosed
Sea-lion, Steller (=northern)
Seal, Caribbean monk
Seal, guadalupe fur
Seal, Hawaiian monk
Seal, Mediterranean monk .
Seal, Saimaa
Seledang (sGaur)
Serow
Serval, Barbary
Shapo
Shou
Falls concolor coryl
Planlgale Ingraml subtlllssima
Planlgale tenulrostrts
Chaetomys subsplnosus
Gymnobelidous lead beateri
Burramys parvus
Wyulda squamlcaudata
Cynomys mexicanus
Cynomys parvldens
Antilocapra americana penlnsularls
Antilocapra americana sonorlensls
Pudu pudu
Fells concolor costarlcensls
Setonix brachyurus
SyMlagus palushis hefnerl
Pentalagus furnessl
Romerolagus diazl
Xeromys myoldes
Leporillus conditor
Bettongla penlcillata
Bettongla galmardl
Bettongla lesueur
Caloprymnus campestrls
Bettongla tropica
Dlceros blcornls
Rhinoceros unicornis
Rhinoceros sondalcus
Ceratotherlum slmum cotton!
Dlcerorhlnus (=Dldermoceros)
sumatrensls.
Oryzomys palustrls natator (=0.
argentatus).
Saiga tatarlca mongollca
Chlropotes satanas satanas
Chiropotas alblnasus
Eumetoplas jubatus
Monachus troplcalis
Arctocephalus townsendi
Monachus schaulnslandl
Monachus monachus
Phoca hlspida salmensls
Bos gaums
Caprlcornls sumatraensls
Fells serval constantlna
Ovls vlgnel vlgnel
Cervus elaphus wallichl
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
U.S.A. (LA and AR east to SC and
FL).
Australia
do
Brazil
do
Australia
do
Mexico
U.S.A. (UT)
Mexico (Baja California)
U.S.A. (AZ), Mexico
Southern South America
Nicaragua, Panama, Costa Rica
Australia
U.S.A. (FL)
Japan (Ryukyu Islands)
Mexico
Australia
do
do
do
do
do
do
Sub-Saharan Africa
India, Nepal
Indonesia, Indochina, Burma, Thai-
land, Sikkim, Bangladesh, Malaysia,
Zaire, Sudan, Uganda, Central Afri-
can Republic.
Bangladesh to Vietnam to Indonesia
(Borneo).
U.S.A. (FL)
Mongolia
Brazil
do
U.S.A. (AK. CA, OR. WA), Canada,
Russia; North Pacific Ocean.
Caribbean Sea, Gulf of Mexico
U.S.A. (Farallon Islands of CA) south
to Mexico (Islas Revillaglgedo).
U.S.A. (HI)
Mediterranean, Northwest African
Coast and Black Sea.
Finland (Lake Saimaa)
Bangladesh, Southeast Asia, India ...
East Asia, Sumatra
Algeria
Kashmir
Tibet, Bhutan
do .
.do ,
.do ,
.do
.do ,
.do
do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
Lower FL Keys
(west of Seven
Mile Bridge).
Entire
do
do
do
do
do
do
do
do
do
do
do
do
do
1
4
4
3
233
4
4
3
6, 149
10
1.3
15
15
6
390
50
3
4
6
4
6
4
4
4
97
4
3
3
421
15
233
3
384E,
408
1, 2D,
45
1, 2D,
212
18
3
508
3
15
3
15
3
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.95(a)
NA
NA
NA
226.12
NA
NA
226.11
NA
NA
NA
NA
NA
NA
NA
-------
Shrew, Dismal Swamp southeastern ..
Slamang
Sifakas
Sloth, Brazilian Ihree-toed
Solenodon, Cuban
Solenodon, Haitian
Squirrel, Carolina northern frying
Squirrel, Delmsrva Peninsula fox
Do
Squirrel, Mount Graham red
Squirrel, Virginia northern flying
Stag, Barbary
Stag, Kashmir
Suni, Zanzibar
Tahr, Arabian
Tamaraw
Tamarln (=marmoset), golden-rumped
(=gol den-headed).
Tamarln, pied
Tamarin, white-footed
Tapir, Asian
Tapir, Brazilian
Tapir, Central American
Tapir, mountain
Tarster, Philippine
Tiger, Tasmanian (=Thyladne)
Tiger
Uakari (all species)
Uflal
Vicuna
Vole, Amargosa
Vole, Florida salt marsh
Vole, Hualapai Mexican
Wallaby, banded hare
Wallaby, brindled nail-tailed
\Nal\aby, crescent naiMailed
Wallaby, Parma
Wallaby, western hare
Wallaby, yellow-footed rock
Whale, blue
Whale, bowhead
Whale, finback
Whale, gray
Sorox longlrostrls fishefi
Symphalangus syndactylus
Propithecus spp
Bradypus torquatus
Solenodon (Alopoga'e) cubanus
Solenodon paradoxus
Glaucomys sabrinus colcratus
Sciurus niger clnereus
do
Tamlasciurus hudsonicus
grahamensls.
Glaucomys sabrinus fuscus
Cervus elaphus barbarus
Cervus elaphus hanglu
Neotragus (Nesolragus) moschatus
moschatus.
Hemitragus jayakari
Bubalus mindorensis
Leontopithecus (=Leontideus) spp
Saguinus bicolor
Saguinus teucopus
Tapirus indicus
Taplrus terrestris
Tapirus balrdil
Tapirus pinchaquo
Tarsius syrichta
Thylaclnus cynocephalus
Panthera tigris
Cacajao spp
Ovis musirrton (=orientalis) ophlon ....
Vicugna vicugna
Microtus californlcus sclrpensls
Microtus pennsylvanicus
dukecampbelii.
Microtus mexicanus hualpalensls
Lagostrophus fasclatus
Onychogalea fraenafa
Onychogalea lunafa
Macropus parma
Lagorchesles hlrsulus
Pelrogala xanthopus
Balaenoptera musculus
Bataena mystlcetus
Balaenoptera physalus
Eschrlchtius robustus
Whale, humpback
Megaptera novaeangliae
U.S.A. (VA, NC)
Malaysia, Indonesia
Malagasy Republic (=Madagascar) ...
Brazil
Cuba
Dominican Republic, Haill
U.S.A. (NC, TN)
U.S.A. (Deimarva Peninsula to south-
eastern PA).
do
U.S.A. (AZ)
U.S.A. (VA, WV)
Tunisia, Algeria
Kashmir
Zanzibar (and nearby islands)
Oman
Philippines
Brazil
do
Colombia
Burma, Laos, Cambodia, Vietnam,
Malaysia, Indonesia, Thailand.
Colombia and Venezuela south to
Paraguay and Argentina.
Southern Mexico to Colombia and
Ecuador.
Colombia, Ecuador and possibly
Peru and Venezuela.
Philippines
Australia
Temperate and tropical Asia
Peru, Brazil, Ecuador, Colombia,
Venezuela.
Cyprus
South America (Andes)
U.S.A. (CA)
U.S.A. (FL)
U.S.A. (AZ)
Australia
do
do
do
do
do
Oceanic
Oceanic (north latitudes only)
Oceanic
North Pacific Ocean—coastal and
Bering Sea, formerly North Atlantic
Ocean.
Oceanic
T
24S
E
15
do
E
4
do
E
3
E
3
E
3
do
E
189
Entire, except Sus-
E
1. 161,
sex Co., DE.
168
U.S.A. (DE—Sussex
XN
161
Co.).
Entire
E
268
E
189
E
3
do
E
3
do
E
50
do
E
50
do
E
4
do
E
3
E
16
do
T
16
do
E
15
.. do
E
3
E
3
do
E
3
T
16
do
E
3
do
E
3, 5
do
E
3
do
E
15
E
3
E
166
do
E
415
E
292
do
E
4
do
E
4
E
4
E
4
E
4
do
E
6
do
E
3
do
E
3
do
E
3
Entire, except east-
E
3, 540
ern North Pacific
Ocean—coastal
and Bering, Beau-
fort, and Chukchi
Seas-
Entire
E
3
NA
NA
N-A
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.84(a)
17.95(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.40(c)
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.40(c)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.95(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
-------
Species
Common name
Scientific name
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
do
E
3
do
E
3
do
E
3
U.S.A.,
E
1.6, 13,
conterminous
15, 35,
(lower 48) States,
561, 562
except MN and
where listed as an
experimental pop-
ulation; Mexico.
U.S.A. (MN)
T
'35
U.S.A. (WY and
XN
561, 562
portions of ID and
MT—see 17.84(1)).
Entire
E
4
Entire, except where
E
1, 248,
listed as experi-
449, 579
mental popu-
lations below.
U.S.A. (portions of
XN
248,
NC and TN—see
449, 579
17.84(c)(9)).
Entire
E
4,6
do
E
131E.
160
E
3
do
T
54
do
T
54,111
do
E
15, 111
do
E
2
do
E
2
do
E
1
do
E
1
do
E
571
Entire, except U.S.A
E
3
Entire
E
571
do
E
17
do
E
1.3
do
E
15
do
E
15
do
E
3
do
E
156
do
E
3
do
E
3
T
571
do
E
E
E
3
3
3
do
Critical
habitat
Whale, right...
Whale, Sei ...
Whale, sperm
Wolf, gray
Balaena glaclalis (incl. australis)
Balaenoptera borealis
Physeter macrocephalus (=catodon)
Canis lupus
Do
Do
Wolf, maned
Wolf, red ....
Do
Wombat, hairy-nosed (= Barnard's and
Queensland hairy-nosed.
Woodrat, Key Largo
Yak, wild
Zebra, Grevy's
Zebra, Hartmann's mountain
Zebra, mountain
Birds
'Akepa, Hawaii (honeycreeper)
'Akepa, Maui (honeycreeper)
'Akialoa, Kauai (honeycreeper)
'Aklapola'au (honeycreeper)
Albatross, Amsterdam
Albatross, short-tailed
Ale the, Thyolo
Blackbird, yellow-shouldered
Bobwhite, masked (quail)
Booby, Abbott's
Bristlebird, western rufous
Bristieblrd, western
Broadbill, Guam
Bulbul, Mauritius olivaceous
Bullfinch, Sao Miguel (finch)
Bush-shrike, Ulugura
Bushwren, New Zealand
Bustard, great Indian
Cahow (= Bermuda petrel)
do ...
do ...
do ...
Hoiarctic
do
do
Chrysocyon brachyurus
Cants rufus
do
..do
..do
Argentina, Bolivia, Brazil, Paraguay,
Uruguay.
U.S.A. (SE U.S.A., west to central
TX).
..do
Laslorhlnus krefftli (formerly L
barnardi and L. gillesplei).
Neotoma florldana smallI
Bos grunnlons mutus
Equus grevyi
Equus zebra hartmannae
Equus zebra zebra
Loxops cocclneus coccineus
Loxops cocclneus ochraceus
Hemignathus procerus
Hemignathus munrol (=wilsoni)
Diomedia amsterdamensis
Diomedea albatrus
Alethe chotoensis
Agelalus xanthomus
Colinus virgin!anus rldgwayi
Sula abbottl
Dasyornls broadbentl litioralis
Dasyornis brachypterus longirostrls
Mylagra freycineti
Hypsipeles borbonlcus ollvaceus ..
Pyrrhula pyrrhula murina
Malaconotus alius
Xenlcus longipes
Choriotls nlgrlceps
Pterodroma cahow
Australia ....
U.S.A. (FL)
China (Tibet), India
Kenya, Ethiopia, Somalia .
Namibia, Angola
South Africa
U.S.A. (HI)
do
do
do
Indian Ocean—Amsterdam Island ....
North Pacific Ocean—Japan, Russia,
U.S.A. (AK, CA. HI, OR, WA).
Malawi, Mozambique
U.S.A. (PR)
U.S.A. (AZ), Mexico (Sonora)
Indian Ocean—Christmas Island
Australia
do
Western Pacific Ocean—U.S.A.
(Guam).
Indian Ocean—Mauritius
Eastern Atlantic Ocean—Azores
Tanzania
New Zealand
India, Pakistan
North Atlantic Ocean—Bermuda
226.13
NA
NA
17.95(a)
17.95(a)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.95(b)
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
-------
Caracara, Audubon's crested
Condor, Andean ...
Condor, California
Do
Coot, Hawaiian (='alae-ke'oke'o)
Cotinga, banded
Cotinga, white-winged
Crane, black-necked
Crane, Cuba sandhill
Crane, hooded
Crane, Japanese
Crane, Mississippi sandhill
Crane, Siberian white
Crane, white-naped
Crane, whooping
Do
Creeper, Hawaii
Creeper, Molokal (=kakawahle)
Creeper, Oahii (=alauwahlo) ....
Crow, Hawaiian (='ala)a)
Crow, Mariana
Crow, white-necked
Cuckoo-shrike, Mauritius
Cuckoo-shrike, Reunion
Curassow, razor-billed
Curassow, red-billed
Curassow, Trinidad whits-headed
Curlew, Eskimo
Dove, cloven-feathered
Dove, Grenada gray-tronled
Duck, Hawaiian (=koloa)
Duck, Laysan
Duck, pink-headed
Duck, white-winged wood ....
Eagle, bald
Eagle, Greenland white-tailed
Eagle, harpy
Eagle, Madagascar sea
Polyborvs ptancus audubonii
Vultur gryphus
Gymnogyps californianus
do
Fulica americana atal
Cotinga maculata
Xlpholena atropurpurea
Grus nlgricollis
Grus canadensis nesiotes
Grus monacha
Grus japonensis
Grus canadensis pulla
Grus leucogeranus
Grus vipio
Grus americana
do
Oreomystis (=Loxops) mana
Paroreomyza (=Oreomystis,
=Loxops) Hammea.
Paroreomyza (=Oreomystis,
=Loxops) maculate.
Corvus hawaiiensis (-tropicus)
Corvus kubaryi
Corvus leucognaphalus
Coquus (=Coracina) typhus
Coquus (=Coracina) newtonl
Mitu (=Crax) mitu mitu
Crax blumenbachil
Pipile pipile pipite
Numenius borealis
Drepanoptita holosericea
Leplotila rufaxitta wells)
Anas wyvilliana
Anas laysanensis
Rhodonessa caryophyllacea
Cairina scutulata
Haliaeetus laucocophalus
Haliaeetus albicilla groanlandicus .
Harpia harpyja
Haliaeetus vociferoides
U.S.A. (AZ, FL, LA, NM, TX) south to
Panama; Cuba.
Colombia to Chile and Argentina
U.S.A. (AZ. CA. OR), Mexico (Baja
California).
.do
U.S.A. (HI)
Brazil
do
China (Tibet)
West Indies—Cuba
Japan, Russia
China, Japan, Korea, Russia
U.S.A. (MS)
C.I.S. (Siberia) to India, including Iran
and China.
Mongolia
Canada, U.S.A. (Rocky Mountains
east to Carolines), Mexico.
do
U.S.A. (HI)
do
do
do
Western Pacific Ocean—U.S.A.
(Guam, Rota).
U.S.A. (PR), Dominican Republic,
Haiti.
Indian Ocean—Mauritius
Indian Ocean—Reunion
Brazil (Eastern)
Brazil
West Indies—Trinidad
Alaska and northern Canada to Ar-
gentina.
Southwest Pacific Ocean—New Cal-
edonia.
West Indies—Grenada
U.S.A. (Hi)
do
India
India, Malaysia, Indonesia, Thailand .
North America south to northern
Mexico.
Greenland and adjacent Atlanlic Is-
lands.
Mexico south to Argentina
Madagascar
U.S.A. (FL)
T
280
NA
NA
Entire
E
4
NA
NA
U.S.A. only, except
E
1, 597
17.95(b)
NA
where listed as an
experimental pop-
ulation below..
U.S.A. (specific por-
XN
597
NA
17.840)
tions of Arizona,
Nevada, and
Utah)..
Entire
E
2
NA
NA
E
15
NA
NA
do
E
15
NA
NA
do
E
15
NA
NA
do
E
15
NA
NA
E
4
NA
NA
do
E
3
NA
NA
do
E
6
17.95(b)
NA
E
4
NA
NA
do
E
15
NA
NA
Entire, except where
E
1, 3, 487
17.95(b)
NA
listed as an ex-
perimental popu-
lation.
U.S.A. (FL)
XN
487
NA
17.84.(h)
Entire
E
10
NA
NA
do
E
2
NA
NA
E
2
NA
NA
E
1
NA
NA
E
156
NA
NA
E
419
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
E
15
NA
NA
E
4
NA
NA
do
E
3
NA
NA
do
E
1. 3
NA
NA
E
3
NA
NA
do
E
3
NA
NA
do
E
1
NA
NA
do
E
1
NA
NA
E
15
NA
NA
E
3
NA
NA
U.S.A.
T
1, 34,
NA
17.41(a)
(conterminous
580
(lower 48) States..
Entire
E
15
NA
NA
do
E
15
NA
NA
do
E
571
HA
1 NA
-------
Species
Common name
Eagle, Madagascar serpent
Eagle, Philippine (=monkey-eating)
Eagle, Spanish Imperial
Egret Chinese
Eider, spectacled
Falcon, American peregrine
Falcon, Eurasian peregrine
Falcon, northern aplomado
Falcon, peregrine
Finch, Laysan (honeycreeper)
Finch, Nihoa (honeycreeper)
Flycatcher, Euler's
Flycatcher, Seychelles paradise
Flycatcher, southwestern willow
Flycatcher, Tahiti
Fody, Mauritius
Fody, Rodrigues
Fody, Seychelles (weaver-finch)
Francolin, Djibouti
Frigatebird, Andrew's
Gnatcatcher, coastal California
Goose, Aleutian Canada
Goose, Hawaiian (=nene)
Goshawk, Christmas Island
Grackle, slender-billed
Grasswren, Eyrean (flycatcher)
Grebe, Alaotra
Grebe, Atrtlan
Greenshank, Nordmann's
Guan, horned
Guan, white-winged
Guineafowl, white-breasted
Gull, Audouin's
Gull, relict
Hawk, Anjouan Island sparrow
Hawk, Galapagos
Hawk, Hawaiian (=io)
Hawk, Puerto Rican broad-winged
Hawk, Puerto Rican sharp-shinned ...
Hermit, hook-billed (hummingbird) ....
Honeycreeper, crested (='akohekohe)
Honeyeater, helmeted
Hornbill, helmeted
Scientific name
Eutriorchis astur
Pithecophaga jefferyl
Aquila hellaca adaSberti
Egretta eulophotes
Somateria
(=Arctonetta,=Lampronetta) Hscheri.
Falco peregrinus anatum
Falco peregrinus peregrinus ...
Falco femoralis septentrionalls
Falco peregrinus
Telespyza (=Psittirostra) cantans .
Telespyza (=Psrttirostra) ultima ....
Empidonax euleri johnstonel
Terpsiphone corvlna
Empidonax traillli extimus
Pomarea nigra
Foudia rubra
Foudia fiavlcans
Foudia sechellarum
Francolinus ochropectus :
Fregata andrewsi
Polioptila californica californica ....
Branta canadensis leucopareia ...
Nesochen (= Branta) sandvlcensls
Acclpiter fasciatus natalis
Ouisicalus (=Cassidix) palustris ...
Amytornls goyderi
Tachybaptus rufoHavatus
Poditymbus gigas
Tringa guttifer
Oreophasis derblanus
Penelope albipennls
Agelastes meleagrides
Larus audouinii
Larus relictus
AccipHer francesil pusillus
Buteo galapagoensis
Buteo solitarius
Buteo platypterus brunnescens ...
Acclpiter striatus venator
Glaucis (=Ramphodon) dohrnii ....
Palmeria doleI
Meliphaga cassidix
Rhinoplax vigil
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
Special
rules
E
571
NA
NA
E
3
NA
NA
E
3
NA
NA
E
3
NA
NA
T
503
NA
NA
E
2, 3, 145
17.95(b)
NA
E
15
NA
NA
E
216
NA
NA
E(S/A)
145
NA
NA
E
1
NA
NA
E
1
NA
NA
E
3
NA
NA
E
3
NA
NA
E
577
NA
NA
E
3
NA
NA
E
571
NA
NA
E
571
NA
NA
E
3
NA
NA
E
571
NA
NA
E
15
NA
NA
T
496
NA
NA
T
1, 3, 410
NA
NA
E
1
NA
NA
E
3
NA
NA
E
3
NA
NA
E
3
NA
NA
E
571
NA
NA
E
3
NA
NA
E
15
NA
NA
E
3
NA
NA
E
401
NA
NA
T
571
NA
NA
E
3
NA
NA
E
15
NA
NA
E
3
NA
NA
E
3
NA
NA
E
1
NA
NA
E
550
NA
NA
E
550
NA
NA
E
15
NA
NA
E
1
NA
NA
E
4
NA
NA
E
15
NA
NA
do
Philippines
Spain, Morocco, Algeria
China, Korea
U.S.A. (AK), Russia
Nests from central Alaska across
north-central Canada to central
Mexico, winters to South America
Europe, Eurasia south to Africa and
Mideast.
U.S.A. (AZ, NM, IX), Mexico, Guate-
mala.
Worldwide, except Antarctica and
most Pacific islands.
U.S.A. (HI)
do
West Indies—Grenada
Indian Ocean—Seychelles
U.S.A. (A2,CA,CO,NM1TX,UT), Mex-
ico..
South Pacific Ocean—Tahiti
Indian Ocean—Mauritius
Indian Ocean—Rodrigues Island
(Mauritius).
Indian Ocean—Seychelles
Djibouti
East Indian Ocean
U.S.A. (CA), Mexico
U.S.A. (AK, CA, OR, WA), Japan
U.S.A. (HI)
Indian Ocean—Christmas Island
Mexico
Australia
Madagascar
Guatemala
Russia, Japan, south to Malaya, Bor
neo.
Guatemala, Mexico
Peru
West Africa
Mediterranean Sea
India, China
Indian Ocean—Comoro Islands
Ecuador (Galapagos Islands)
U.S.A. (HI)
U.S.A. (PR)
do
Brazil
U.S.A. (HI)
Australia
Thailand, Malaysia
do
do
do
do
do
do
.do
.do
Wherever found in
wild in the
conterminous
(lower 48) States.
Entire
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
-------
Ibis, Japanese crested
Ibis, northern bald
Jay, Florida scrub
Kagu
Kakapo (=owl-parrot)
Kestrel, Mauritius
Kestrel, Seychelles
Kingfisher, Guam Micronesia
Kite, Cuba hook-billed
Kite, Everglade snail
Kite, Grenada hook-billed
Kokako (wattlebird)
Lark, Raso
Macaw, glaucous
Macaw, Indigo
Macaw, little blue
Magpie-robin, Seychelles (thrush)
Malimbe, Ibadan
Malkoha, red-faced (cuckoo)
Mallard, Mariana
Megapode, Maleo
Megapode, Micronesian (=La
Perouse's).
Millerbird, Nihoa (old world warbler) ...
Monarch, Tinian (old world flycatcher)
Moorhen (=gallinule), Hawaiian com-
mon.
Moorhen (=gallinule), Mariana com-
mon.
Murrelet, marbled
Nightjar, Puerto Rican ^whip-poor-
will).
Nukupu'u (honeycreeper)
Nuthatch, Algerian
'O'o, Kauai (='o'o 'a'a) (honeyeater)
Ostrich, Arabian
Ostrich, West African
'O'u (honeycreeper)
Owl, Anlouan scops
Owl, giant scops
Owl, Madagascar red
Owl, Mexican spotted
Owl, northern spotted
Owl, Seychelles
Owlet, Morden's (=sokoke)
Oystercatcher, Canarian black
Palila (honeycreeper)
Parakeet, Forbes'
Parakeet, golden-shouldered
(^hooded).
Parakeet, golden
Nipponia nlppon
Geronticus eremita .
Aphelocoma coerutescens ,
Rhynochetos jubatus
Strlgops habroptilus
Falco punctatus
Falco araea
Halcyon cinnamomina cinnamomlna
Chondrohierax uncinatus wilsonil
Rostrhamus sociabilis plumbeus
Chondrohierax uncinatus mirus
Callaeas cineraa
Alauda razae
Anodorhynchus glaucus
Anodorhynchus leari
Cyanopsitta spixii
Copsychus sechellarum
Malimbus ibadanensls
Phaenicophaeus pyrrhocephalus .
Anas oustaleti
Macrocephaion maleo ..
Megapodius iaperouse .
Acrocephalus famiiiaris kingI
Monarcha takatsukasae
Gallinula chloropus sandvicensls .
Gallinula chloropus guaml
Brachyramphus marmoratus
marmoratus.
Caprimulgus nociUherus
Hemignathus lucidus
Sitla ledantl
Moho braccatus
Struthio camelus syrlacus ,
Struthlo camelus spatzl
Psittirostra psittacea
Otus nitilus cepnodes
Otus gurneyi
Tyto soumagnei
Strix occidentalis lucida
Strix occidentalis caurina
Otus insularis
Otus Ireneae
Haematopus meadewaldol
Loxioides (=Pslttirostra) bailleui ..
Cyanoramphus auriceps forbesi
Psephotus chrysopterygius
China, Japan, Russia, Korea
Southern Europe, southwestern Asia,
northern Africa.
U.S.A. (FL)
South Pacific Ocean—New Caledo-
nia.
New Zealand
Indian Ocean—Mauritius
Indian Ocean—Seychelles Islands ....
West Pacific Ocean—U.S.A. (Guam)
West Indies—Cuba
U.S.A. (FL), Cuba
West Indies—Grenada
New Zealand
Atlantic Ocean—Raso Island (Cape
Verde).
Paraguay, Uruguay, Brazil
Brazil
do
Indian Ocean—Seychelles Islands ....
Nigeria
Sri Lanka (=Ceylon)
West Pacific Ocean—U.S.A. (Guam,
Mariana Islands).
Indonesia (Celebes)
West Pacific Ocean—Palau Islands,
U.S.A. (Mariana Islands).
U.S.A. (HI)
West Pacific Ocean—U.S.A. (Mari-
ana Islands).
U.S.A. (HI)
Aratinga guarouba Brazil
West Pacific Ocean—U.S.A. (Guam,
Tinian, Saipan, Pagan).
U.S.A. (AK, CA, OR, WA), Canada
(B.C.).
U.S.A. (PR)
U.S.A. (HI)
Algeria
U.S.A. (HI)
Jordan, Saudi Arabia
Spanish Sahara
U.S.A. (HI)
Indian Ocean—Comoro Island
Philippines—Marlnduque and
Mindanao Island.
Madagascar
U.S.A. (AZ. CO, NM, TX, OJ), Mex-
ico.
U.S.A. (CA, OR, WA), Canada (B.C.)
Indian Ocean—Seychelles Islands ....
Kenya
Atlantic Ocean—Canary Islands
U.S.A. (HI)
New Zealand
Australia
..do
..do
..do
..do
do
do
do
do
do
U.S.A. (FL)
Entire
do
do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
U.S.A. (CA, OR,
WA).
Entire
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
E
3
NA
NA
E
401
NA
NA
T
267
NA
NA
E
3
NA
NA
E
3
NA
NA
E
3
NA
NA
E
3
NA
NA
E
156
NA
NA
E
3
NA
NA
E
1
17.95(b)
NA
E
3
NA
NA
E
3
NA
NA
E
571
NA
NA
E
15
NA
NA
E
15
NA
NA
E
15
NA
NA
E
3
NA
NA
E
571
NA
NA
E
3
NA
NA
E
23
NA
NA
E
3
NA
NA
E
3
NA
NA
E
1
NA
NA
T
3, 261
NA
NA
E
1
NA
NA
E
156
NA
NA
T
479
17.95(b)
NA
E
6
NA
NA
E
1,2
NA
NA
E
571
NA
NA
E
1
NA
NA
E
3
NA
NA
E
3
NA
NA
E
1
NA
NA
E
3
NA
NA
E
15
NA
NA
E
401
NA
NA
T
494
17.95(b)
NA
T
393
17.95(b)
NA
E
3
NA
NA
E
3
NA
NA
E
571
NA
NA
E
1
17.95(b)
NA
E
3
NA
NA
E
3
NA
NA
E
15
NA
NA
-------
Species
Common name
Scientific name
Parakeet, Mauritius
Parakeet, Norfolk Island
Parakeet, ochre-marked
Parakeet, orange-bellied
Parakeet, paradise (=beautiful)
Parakeet, scarlet-chested (=splendid)
Parakeet, turquoise
Parrot, Australian
Parrot, Bahaman or Cuban
Parrot, ground
Parrot, imperial
Parrot, Puerto Rican
Parrot, red-browed
Parrot, red-capped
Parrot, red-necked
Parrot, red-spectacled
Parrot, red-tailed
Parrot, Seychelles lesser vasa
Parrot, St. Lucia
Parrot, St. Vincent
Parrot, thick-billed
Parrot, vinaceous-breasted
Parrotbill, Maui (honeycreeper)
Pelican, brown
Penguin, Galapagos
Petrel, Hawaiian dark-rumped
Petrel, Madeira (=freira)
Petrel, Mascarene black
Pheasant, bar-tailed
Pheasant, Blyth's tragopan
Pheasant, brown eared
Pheasant, Cabot's tragopan
Pheasant, cheer
Pheasant, Chinese monal
Pheasant, Edward's
Pheasant, Elliot's
Pheasant, imperial
Pheasant, Mikado
Pheasant, Palawan peacock
Pheasant, Sdater's monal
Pheasant, Swinhoe's
Pheasant, western tragopan
Pheasant, white eared
Pigeon, Azores wood
Pigeon, Chatham Island
Pigeon, Mindoro zone-tailed
Psittacula echo
Cyanoramphus novaezelandlae
cookli.
Pyrrhura cruentata
Neophema chrysogaster
Psephotus pulcherrimus
Neophema splendida
Neophema pulchella
Geopsittacus occidentalis
Amazona leucocephala
Pezoporus wallicus
Amazona imperlalis
Amazona vittata
Amazona rhodocorytha
Pionopsitta pileata
Amazona arausiaca
Amazona prelrel pretrel
Amazona brasiliensls
Coracopsls nigra barklyi
Amazona versicolor
Amazona guildingii
Rhynchopsitta pachyrhyncha ...
Amazona vinacea
Pseudonestor xanthophrys
Pelecanus occidentalis
Spheniscus mendiculus
Pterodroma phaeopygia
sandwichensis.
Pterodroma madeira
Pterodroma aterrima
Syrmatlcus humaie
Tragopan blythil
Crossoptilon mantchuricum
Tragopan caboti
Catreus wallichii
Lophophorus Ihuysil
Lophura edwardsl
Syrmatlcus elliotl
Lophura Imperialis
Syrmaticus mikado
Polyplectron emphanum
Lophophorus sclateri
Lophura swinhoil
Tragopan melanocephalus
Crossoptilon crossoptilon
Columba palumbus azorica
Hemiphaga novaeseelandiae
chathamensls.
Ducula mindorensls
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
E
3
NA
E
401
NA
E
3
NA
E
4
NA
E
4
NA
E
4
NA
E
3
NA
E
3
NA
E
3, 15
NA
E
6
NA
E
3
NA
E
1
NA
E
3
NA
E
15
NA
E
50
NA
E
15
NA
E
401
NA
E
571
NA
E
3
NA
E
3
NA
E
3
NA
E
15
NA
E
1
NA
E
2,3, 171
NA
E
3
NA
E
1
NA
E
571
NA
E
571
NA
E
3
NA
E
3
NA
E
3
NA
E
3
NA
E
401
NA
E
3
NA
E
3
NA
E
15
NA
E
3
NA
E
3
NA
E
3
NA
E
3
NA
E
3
NA
E
3
NA
E
4
NA
E
3
NA
E
3
NA
E
15
NA
Indian Ocean—Mauritius
Australia (Norfolk Island)
Brazil
Australia
do
do
do
do
West Indies—Cuba, Bahamas, Cay-
mans.
Australia
West Indies—Dominica
U.S.A. (PR)
Brazil
do
West Indies—Dominica
Brazil, Argentina
Brazil
Indian Ocean—Seychelles (Praslin
Island).
West Indies—St. Lucia
West Indies—St. Vincent
Mexico, U.S.A. (AZ, NM)
Brazil
U.S.A. (HI)
U.S.A (Carolines to TX, CA, OR,
WA), West Indies, coastal Central
and South America.
Ecuador (Galapagos Islands)
U.S.A. (HI)
Atlantic Ocean—Madeira Island
Indian Ocean—Mauritius (Reunion Is-
land).
Burma, China
Burma, China, India
China
do
India, Nepal, Pakistan
China
Vietnam
China
Vietnam
Taiwan
Philippines
Burma, China, India
Taiwan
India, Pakistan
China (Tibet), India
East Atlantic Ocean—Azores
New Zealand
Philippines
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
Mexico
Entire
do
Entire, except U.S.
Atlantic coast, FL,
AL
Entire
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do ...;
do
do
do
do
-------
Pigeon, pink
Pigeon, Puerto Rican plain
Pigeon, white-toiled laurel .
Piping-^uan, black-fronted .
Pitta, Koch's
Plover, New Zealand shore
Plover, piping
Do
Plover, western snowy
Pochard, Madagascar
Po'ouli (honeycreeper)
Prairie-chicken, Attwater's greater
Quail, Merrlam's Montezuma
Quetzel, resplendent
Rail, Aukland Island
Rail, California clapper
Rail, Guam
Do
Rail, light-footed clapper
Rail, Lord Howe wood
Rail, Yuma clapper
Rhea, Darwin's
Robin, Chatham Island
Robin, dappled mountain
Robin, scarlet-breasted (flycatcher) ....
Rockfowl, grey-necked
Rockfowl, white-necked
Roller, long-tailed ground
Scrub-bird, noisy
Shama, Cebu black (thrush)
Shearwater, Newell's Townsend's (for
merly Manx) (='a'o).
Shrike, San Clemente loggerhead
Siskin, red
Sparrow, Cape Sable seaside
Sparrow, Florida grasshopper
Sparrow, San Clemente sage
Starling, Ponape mountain
Starling, Rothschild's (myna)
Still, Hawaiian (=ae'o)
Stork, oriental white
Stork, wood
Sunbird, Marungu
Columba (=Nesoenas) mayeri
Cotumba inornata wetmorei ....
Columba junoniae
Pipile jacutinga
Pitta kochi
Thinomis novaeseetandiae
Charadrlus melodus
do
Charadrlus atexandrinus nlvosus
Aythya Innotata
Melamprosops phaeosoma
Tympanuchus cupido attwaterl
Cyrtonyx montezumae merriami
Pharomachrus moclnno
Rallus pactoralis muellerl
Rallus longkostris obsoletus
Rallus owstoni
do
Rallus langirostris levipss
Tricholimnas sylvestris
Rallus longirostris yumanonsis
Ptarocnemia pennala
Petrolca traversl
Arcanator (-Modulatrix) orostruthus ..
Petrolca multicolor multicolor
Picalhartos oreas
Picalhartos gymnocephalus
Uratelornis chimaera
Atrichornis clamosus
Copsychus niger cebuensis
Puffinus aurlcularis (=puffinus)
neweHi.
Lanius ludoviclartus mearnsi
Carduefis f=Spinus} cuculfata
Ammodramus (=Ammospiza)
maritimus mirabilis.
Ammodramus savannarum floridanus
Amphispiza belli clementeae
Aplortis pelzelni
Leucopsar rothschildi ...
Himantcpus mexicanus
(=himantopvs) knudseni
Ciconla ciconia boyciana
Mycterla americana
Nectarinia prigoginei
Indian Ocean—Mauritius
U.S.A. (PR)
Atlantic Ocean—Canary Islands
Argentina
Philippines
New Zealand
U.S.A. (Great Lakes, northern Great
Plains, Atlantic and Gulf coasts,
PR, VI), Canada, Mexico, Baha-
mas, West Indies.
..do
U.S.A. (AZ, CA, CO, KS, NM, NV,
OK, OR, TX, UT, WA), Mexico.
Madagascar
U.S.A. (HI)
U.S.A. (TX)
Mexico (Vera Cruz)
Mexico to Panama
New Zealand
U.S.A. (CA)
Western Pacific Ocean—U.S.A.
(Guam).
do
U.S.A. (CA), Mexico (Baja California)
Australia (Lord Howe Island)
Mexico, U.S.A. (AZ, CA)
Argentina, Bolivia, Peru, Uruguay ....
New Zealand
Mozambique, Tanzania
Australia (Norfolk Island)
Cameroon, Gabon
Africa—Togo to Sierra Leone
Malagasy Republic (^Madagascar) ..
Australia
Philippines
U.S.A. (HI)
U.S.A. (CA)
South America
U.S.A. (FL)
do
U.S.A. (CA)
West Pacific Ocean—Federated
Slates of Micronesia.
Indonesia (Bali)
U.S.A. (HI)
China, Japan, Korea, Russia
U.S.A., (CA, AZ, TX, to Carolinas),
Mexico, C. and S. America.
Zaire
do
E
571
NA
NA
E
2
IMA
NA
do
T
571
NA
NA
do
E
15
NA
NA
do
E
15
NA
NA
do
E
3
NA
NA
Great Lakes water-
E
211
NA
NA
shed In States of
IL, IN, Ml, MN,
NY. OH, PA, and
Wl and
Canada (Ont.).
Entire, except those
T
211
NA
NA
aieas where listed
as endangered
above.
U.S.A. (CA, OR,
T
493
NA
NA
WA), Mexico
(Within 50 miles
of Pacific coast).
Entire
E
571
NA
NA
do
E
10
NA
NA
do
E
1
NA
NA
do
E
15
NA
NA
do
E
15
NA
NA
E
3
NA
NA
E
2
NA
NA
Entire, except Rota .
E
146E,
NA
NA
156
Rota
KM
37 ^
NA
U.S.A. only
E
2
NA
NA
Entire
E
15
NA
NA
U.S.A. only
E
1
NA
NA
Entire
E
3
NA
NA
do
E
3
NA
NA
do
T
571
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
E
3
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
do
T
10
NA
NA
do
E
26
NA
NA
E
15
NA
NA
E
1
17.95(b)
NA
do
E
239
NA
NA
do
T
26
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
do
E
2
NA
NA
do
E
3
NA
NA
U.S.A. (AL. FL, GA,
E
142
NA
NA
NC, SC).
Entire
E
571
NA
NA
-------
Species
Common name
Scientific name
Swiftiet, Mariana gray (=vanikoro)
Teai, Campbell Island flightless ...
Tern, California least
Tern, least
Tern, roseate
Do
Aerodramus vanikorensls bartschl....
Anas aucklandica neslotis
Sterna antillarum (=aibifrons) brown!
Sterna antillarum
Sterna dougallil dougallil.
..do
Thrasher, white-breasted
Thrush, large Kauai
Thrush, Molokai (=oloma'o)
Thrush, New Zealand (wattiebird)
Thrush, small Kauai (=puaiohi)
Thrush, Taita
Tinamou, solitary
Towhee, Inyo California (=brown)
Trembler, Martinique (thrasher)
Turaco, Bannerman's
Turtle-dove, Seychelles
Vanga, Pollen's
Vanga, Van Dam's
Vireo, black-capped
Vireo, least Bell's
Wanderer, plain (collared-hemipode)
Warbler (Old World), Aldabra
Warbler (Old World), nightingale reed
Warbler (Old World), Rodrigues
Warbler (Old World), Seychelles
Warbler (wood), Bachman's
Warbler (wood), Barbados yellow
Warbler (wood), golden-cheeked
Ramphocinclus brachyurus
Myadestes (=Phaeornis) myadestinus
Myadestes (=Phaeornls) lanalensis
(=obscurus) rutha.
Tumagra capensls
Myadestes (=Phaeornis) palmeri
Tardus olivaceous hellerl
Tinamus sotrtarius
Pipilo crissalis (=fuscus) eremophilus
Cinclocerthia ruficauda gutturalis
Tauraco bannermani
Streptopelia picturata rostrata
Xenopirostris pollen!
Xenoplrostris damil
Vireo atricapillus
Vireo bellli pusillus
Pedionomous torquatus
Nosillas aldabranus
Acrocephalus lusclnla
Bebrornis rodericanus
Bebrornis sechellensls
Vermlvora bachmanll
Dendrolca pdtechla petechia
Dendrolca chrysoparia
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
Western Pacific Ocean—U.S.A.
(Guam, Rota, Tinian, Saipan,
Aglguan).
New Zealand (Campbell Island)
Mexico, U.S.A. (CA)
U.S.A. (Atlantic and Gulf coasts,
Miss. R. Basin, CA), Greater and
Lesser Antilles, Bahamas, Mexico;
winters Central America, northern
South America.
Tropical and temperate coasts of At-
lantic Basin and East Africa.
..do
West Indies—St. Lucia, Martinique ..
U.S.A. (HI)
do
New Zealand
U.S.A. (HI)
Kenya
Brazil, Paraguay, Argentina
U.S.A. (CA)
West Indies—Martinique
Cameroon
Indian Ocean—Seychelles
Madagascar
do
U.S.A. (KS, LA. NE, OK. TX). Mex-
ico..
U.S.A. (CA), Mexico
Australia
Indian Ocean— Seychelles (Aldabra
Island).
West Padfic Ocean—U.S.A. (Guam,
Alamagan, Saipan).
Mauritius (Rodrigues Islands)
Indian Ocean—Seychelles Island ....
U.S.A. (Southeastern), Cuba
West Indies—Barbados
U.S.A. (TX), Mexico, Guatemala,
Honduras, Nicaragua, Belize.
do
do
do
U.S.A. (AR, CO, IA,
IL, IN, KS, KY,
LA—Miss. R. and
tribs.N of Baton
Rouge, MS—
Miss. R., MO. MT,
ND, NE, NM, OK.
SD, TN, TX—ex-
cept within SO
miles of coast).
U.S.A. (Atlantic
Coast south to
NC), Canada
(Newf., N.S,
Que.), Bermuda.
Western Hemi-
sphere and adja-
cent oceans, incl.
U.S.A. (FL, PR,
VI), where not list-
ed as endangered.
Entire
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
U.S.A. (Mariana Is-
lands).
Entire
do
do
do
do
156
15
2,3
182
296
296
3
2
2
3
1
571
15
282
3
571
571
571
571
294
228
6
571
3, 4
3
3
1.3
3
387E,
411
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
17.95(b)
NA
NA
NA
NA
NA
NA
17.95(b)
NA
NA
NA
NA
NA
NA
NA
NA
-------
Warbler (wood), Kirtland'a .
Warbler (wood), Samper's .
Wattle-eye, banded
Weaver, Clarke's
Whipblrd, western
White-eye, bridled
White-eye, Norfolk Island ..
White-eye, Ponape greater
White-eye, Seychelles
Woodpecker, imperial
Woodpecker, Ivory-billed ...
Woodpecker, red-cockaded
Woodpecker, Tristam's
Wren, Guadeloupe house ..
Wren, St. Lucia house
Reptiles
Alligator, American
Alligator, Chinese
Anole, Culebra Island giant
Boa, Jamaican
Boa, Mona
Boa, Puerto Rican
Boa, Round Island [no common name]
Do
Boa, Virgin Islands tree
Caiman, Apaporis River
Caiman, black
Caiman, broad-snouted
Caiman, Yacare
Chuckwalla, San Esteban Island
Crocodile, African dwarf
Crocodile, African slender-snouted
Crocodile, American
Crocodile, Ceylon mugger
Crocodile, Congo dwarf ....
Crocodile, Cuban
Crocodile, Morelet's
Crocodile, mugger
Crocodile, Nile
Crocodile, Orinoco ...
Crocodile, Philippine
Crocodile, saltwater (=estuarlne)
Dendrolca kirtlandii
Leucopeza semperl
Platysteira latlclncta
Ploceus golandl
Psophodes nlgrogularis
Zosterops conspicillatus
conspicillatus.
Zosterops albogularls
RuKIa longlrostra (=sanfordi)
Zosterops modesta
Campephitus imperialis
Campephilus principalis
Picoldes (=Dendrocopos) borealls .
Dryocopus javensls richardsl
Troglodytes aedon guadeloupensls
Troglodytes aedon mesoleucus
Alligator mlsslssipptensis
Alligator sinensis
Anolis roosovetti
Epicrates subfiavus
Epicrates monensis monensis ...
Epicrates inornatus
Bolyeria multocarinata
Casarea dussumieri
Epicrates monensis granti
Caiman crocodilus apaporiensls
Melanosuchus niger
Caiman latirostris
Caiman crocodilus yacare
Sauromalus varius
Osteolaemus tetraspis tetraspis
Crocodylus cataphractus
Crocodylus acutus
Crocodylus palusirls kirrbula ....
Osteolaemus tetraspis osbornl .
Crocodylus rhombifer
Crocodylus moreletii
Crocodylus palustrls palusirls ...
Crocodylus nilotlcus
Crocodylus intermedius
Crocodylus novaegulneae
mlndorensis.
Crocodylus porosus
U.S.A. (principally Ml), Canada, West
Indies—Bahama Islands.
West Indies—St. Lucia
Cameroon
Kenya
Australia
Western Pacific Ocean—U.S.A.
(Guam).
Indian Ocean—Norfolk Islands
West Pacific Ocean—Federated
States of Micronesia.
Indian Ocean—Seychelles
Mexico
U.S.A. (southcentra) and southeast-
ern), Cuba
U.S.A. (southcentral and southeast-
ern).
Korea
Wesl Indies—Guadeloupe
West Indies—St. Lucia
Southeastern U.S.A
China
U.S.A. (PR—Culebra Island)
Jamaica
U.S.A. (PR)
do
Indian Ocean—Mauritius
do
U.S. and British Virgin Islands
Colombia
Amazon basin
Brazil, Argentina, Paraguay, Uruguay
Bolivia, Argentina, Peru, Brazil
Mexico
West Africa
Western and central Africa
U.S.A. (FL), Mexico, Caribbean,
Central and South America.
Sri Lanka
Congo R. drainage
Cuba
Mexico, Belize, Guatemala
India, Pakistan, Iran, Bangladesh
Africa, Middle East
South America—Orinoco R. basin ....
Philippine Islands
Southeast Asia, Australia, Papua
New Guinea, Pacific Islands
(Palau).
do
.do
do
do
do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
do .
do .
.do
.do
.do
do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
.do
Entire, except
Papua New Guin-
ea and Australia.
E
1, 3
NA
E
3
NA
E
571
NA
E
571
NA
E
3
NA
E
156
NA
E
15
NA
E
3
NA
E
3
NA
E
3
NA
E
1,3
NA
E
2
NA
E
3
NA
E
3
NA
E
3
NA
T(S/A)
1. 11.
NA
20, 47,
51, 60.
113,
134,
186,269
E
15
NA
E
25
17.95(c)
E
3
NA
T
33
17.95(c)
E
2
NA
E
68
NA
E
68
NA
E
2, 66
NA
E
15
NA
E
15
NA
E
15
NA
E
3
NA
E
88
NA
E
15
NA
E
5
NA
E
10, 87
17.95(c)
E
15
NA
E
15
NA
E
3
NA
E
3
NA
E
15
NA
T
3, 279,
NA
334,
514, 585
E
3
NA
E
15
NA
E
87,583
NA
NA
NA
NA
-------
Species
Scientific name
do
Crocodytus siamensis
Gavialis gangeticus
Phelsuma edwardnewtonl
Sphaerodactylus micropithecus
Phelsuma guenthari
Cyrtodactytus sorpenslnsula ...
Cyclura rileyi nuchalla
Cyclura cychlura Inornata
Cyclura cychlura cychlura
Cyclura plnguis
Conolophus pallldus
Cyclura nubila caymanensls ...
Cyclura nubila nubila
Common name
+ Do
Crocodile, Siamese
Gavial (=gharial)
Gecko, day
Gecko, Monito
Gecko, Round Island day
Gecko, Serpent Island
Iguana, Acklins ground
Iguana, Allen's Cay
Iguana, Andros Island ground
Iguana, Anegada ground
Iguana, Barrlngton land
Iguana, Cayman Brae ground
Iguana, Cuban ground
Iguana, Exuma Island
Iguana, Fiji banded
Iguana, Fiji crested
Iguana, Grand Cayman ground
Iguana, Jamaican
Iguana, Mayaguana
Iguana, Mona ground
Iguana, Turks and Caicos
Iguana, Watting Island ground .
Iguana, White Cay ground
Lizard, blunt-nosed leopard
Lizard, Coachella Valley fringe-toed ....
Lizard, Hierro giant
Lizard, Ibiza wall
Lizard, Island night
Lizard, Maria Island ground
Lizard, St Croix ground
Monitor, Bengal
Monitor, desert
Monitor, Komodo Island
Monitor, yellow
Python, Indian
Rattlesnake, Aruba Island
Rattlesnake, New Mexican ridge-
nosed.
Skink, bluetail (=blue-tailed) mole
Sklnk, Round Island
Cyclura cychlura flgglnsl
Brachylophus fasdatus
Brachylophus vitlonsls
Cyclura nubila lewlsl
Cyclura collel
Cyclura carinata bartschl
Cyclura stejnegeri
Cyclura carinata carinata
Cyclura rileyi rileyi
Cyclura rileyi cristata
Gambella (=Crotaphytus) situs ....
Uma Inornata
Gallotia slmonyl simony!
Podarcls pltyusensis
Xantusla (=Klauberina) rtversiana
Cnemidophorus vanzoi
Ameiva polops
Varanus bengalensis
Varanus griseus
Varanus komodoensis ....
Varanus fiavescens
Python moiurus molurus .
Crotalus unicolor
Crotalus willardi obscurus
Eumeces egreglus livldus
Leioloplsma teHairi
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
s
When
listed
Critical
habitat
Special
rules
T
87,585
NA
NA
E
15
NA
NA
E
3
NA
NA
E
3
NA
NA
E
125
17.95(c)
NA
E
3
NA
NA
T
129
NA
NA
T
129
NA
NA
T
129
NA
NA
T
129
NA
NA
E
3
NA
NA
E
3
NA
NA
T
129
NA
NA
T
129
NA
NA
T
129
NA
NA
E
88
NA
NA
E
88
NA
NA
E
129
NA
NA
E
129
NA
NA
T
129
NA
NA
T
33
17.95(c)
NA
T
129
NA
NA
E
129
NA
NA
T
129
NA
NA
E
1
NA
NA
T
105
17.95(c)
NA
E
144
NA
NA
T
144
NA
NA
T
26
NA
NA
E
443
NA
NA
E
24
17.95(c)
NA
E
15
NA
NA
E
15
NA
NA
E
15
NA
NA
E
15
NA
NA
E
15
NA
NA
T
129
NA
NA
T
43
17.95(c)
NA
T
299
NA
17.42(d)
T
129
NA
NA
do
Southeast Asia, Malay Peninsula
Pakistan, Burma, Bangladesh, India,
Nepal.
Indian Ocean—Mauritius
U.S.A. (PR)
Indian Ocean—Mauritius
do
West Indies—Bahamas
do
do
West Indies—British Virgin Islands
(Anegada Island).
Ecuador (Galapagos Islands)
West Indies—Cayman Islands
Cuba
West Indies—Bahamas
Pacific—Fiji, Tonga
Pacific—Fiji
West Indies—Cayman Islands
West Indies—Jamaica
West Indies—Bahamas
U.S.A. (PR—Mona Island)
West Indies—Turks and Caicos Is-
lands.
West Indies—Bahamas
do
U.S.A. (CA)
do
Spain (Canary Islands)
Spain (Balearic Islands)
U.S.A. (CA)
West Indies—St. Lucia (Maria Is-
lands).
U.S.A. (VI)
Iran, Iraq, India, Sri Lanka, Malaysia,
Afghanistan, Burma, Vietnam,
Thailand.
North Africa to Aral Sea, through
Central Asia to Pakistan, North-
west India.
Indonesia (Komodo, Rintja, Padar,
and western Flores Island).
West Pakistan through India to Ban-
gladesh.
Sri Lanka and India
Aruba Island (Netherland Antilles) ...
U.S.A. (NM), Mexico
U.S.A. (FL)
Indian Ocean—Mauritius
Australia
Entire
do
do
do
do
do
do
do
do
do
do
do ,
Entire (excluding
population intro-
duced in Puerto
Rico).
Entire
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
-------
Sklnk, sand
Snake, Atlantic salt marsh ...
Snake, Concho water
Snake, eastern indigo
Snake, giant garter
Snake, Maria Island
Snake, San Francisco garter
Tartaruga
Terrapin, river (=tuntong)
Tomistoma
Tortoise, angulated
Tortoise, Bolson
Tortoise, desert
Do
Tortoise, Galapagos
Tortoise, gopher
Tortoise, radiated
Traca|a
Tuatara
Turtle, Alabama redbelly (=red-bellied)
Turtle, aquatic box
Turtle, black softshell
Turtle, Brazilian (=Hoge's) sldeneck ....
Turtle, Burmese peacock
Turtle, Cat Island
Turtle, Central American river
Turtle, Cuatro Cienegas softshell
Turtle, flattened musk
Turtle, geometric
Turtle, green sea
Neoseps reynoldsl
Nerodia clarkil (=fasciata) taenlata ....
Nerodia pauclmaculata (charter! p.) ..
Drymarchon corals couperi
Thamnophis gigas
Liophus ornatus
Thamnophis sirtalls tatrataenia
Podocnomts expansa
Batagur baska
Tomistoma schlegelil
Geochelone yniphora
Gopherus flavomarginatus
Gopharus (=Xerobates,
=Scaptochetys) agassizll.
.do
Geochelone elephantopus
Gopherus polyphomus
Geochelone (=Testudo) radiata
Podocnemls unHilis
Sphenodon punctatus
Pseudemys alabamensis
Terrapene coahuila
Trlonyx nigricans
Phrynops hogel
Morenia ocellata
Trachemys terrapen
Dermatemys mawil
Trlonyx ater
Sternotherus depressus
Psammobates (=Geochelone)
geometrlcus.
Chelonla mydas
Do
Chelonla mydas (incl. agassizl)
U.S.A. (FL)
do
U.S.A. (TX)
U.S.A. (AL, FL, GA, MS, SC)
U.S.A. (CA)
West Indies—St. Lucia (Maria Is-
lands).
U.S.A. (CA)
South America—Orinoco R. and
Amazon R. basins.
Malaysia, Bangladesh, Burma, India,
Indonesia.
Malaysia, Indonesia
Malagasy Republic (=Madagascar) ...
Mexico
U.S.A. (AZ, CA, NV, U7), Mexico
.do
Ecuador (Galapagos Islands)
U.S.A. (AL, FL, GA, LA, MS, SC)
Malagasy Republic (^Madagascar) ...
South America—Orinoco R. and
Amazon R. basins.
New Zealand
U.S.A. (AL)
Mexico
Bangladesh
Brazil
Burma
West Indies—Jamaica, Bahamas
Mexico, Belize, Guatemala
Mexico
U.S.A. (AL)
South Africa
Circumglobal in tropical and temper-
ate seas and oceans.
.do
do
T
299
NA
17.42(d)
do
T
30
NA
NA
do
T
241
17.95(c)
NA
do
T
32
NA
NA
do
T
522
NA
NA
do
E
443
NA
NA
do
E
1
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
E
15
NA
NA
do
E
15
NA
NA
do
E
46
NA
NA
Entire, except AZ
T
103,
17.95(c)
NA
south and east of
357E,
Colorado R., and
378
Mexico.
AZ south and east
T(S/A)
357E,
NA
17.42(e)
of Colorado R.,
378
and Mexico, when
found outside of
Mexico or said
range in AZ.
Entire
E
3
NA
NA
Wherever found
T
281
NA
NA
west of Mobile
and Tombigbee
Rivers in AL, MS,
and LA.
Entire
E
3
NA
NA
do
E
3
NA
NA
do
E
3
NA
NA
do
E
278
NA
NA
E
6
NA
NA
do
E
15
NA
NA
do
E
443
NA
NA
do
E
15
NA
NA
Cat Island in the
E
443
NA
NA
Bahamas.
Entire
E
129
NA
NA
do
E
15
NA
NA
Black Warrior R.
T
272
NA
NA
system upstream
from Bankhead
Dam.
Entire
E
15
NA
NA
Breeding colony
E
42
NA
222.41
populations in FL
and on Pacific
coast of Mexico.
Wherever found ex-
T
42
NA
17.42(b),
cept where listed
227.71,
as endangered
227.72
below.
-------
Species
Common name
Turtle, hawksblll sea (=carey)
Turtle, Inagua Island
Turtle, Indian sawback
Turtle, Indian softshell
Turtle, Kemp's (=Atlantic) ridley sea ...
Turtle, leatherback sea
Turtle, loggerhead sea
Turtle, olive (=Pactfic) ridley sea
Do
Turtle, peacock softshell
Turtle, Plymouth redbelly (-red-bellled)
Turtle, ringed map (=sawback)
Turtle, short-necked or western
swamp.
Turtle, South American red-lined
Turtle, spotted pond
Turtle, three-keeled Asian
Turtle, yellow-blotched map
(=sawback).
Viper, Lar Valley
Amphibians
Coqui, golden
+ Frog , California red-legged
Scientific name
Eretmochefys imbricate
Trachemys stejnegeri matonei
Kachuga tecta tecta
Trlonyx gangeticus
Lepldochelys kempli
Dermochetys coriacea
Carotta caretta
Lepldochelys ollvacea
.do
Trlonyx hurum
Psoudemys (-Chrysemya)
rubrlventrls bangsi.
Graptemys oculifera
Pseudemydura umbrlrm
Trachemys scrlpta calllrostrls
Geoclemys (=Damonla) hamlltonll
Melanochelys (=Geoemyda, =Nicorla)
trlcarinata.
Graptemys fiavlmaculata
Vipera latifii
Eleutherodactylus jasper!
Rana aurora draytonll
Frog, Goliath
Conraua gollath
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
Special
rules
E
3
17.95(c)
222.41
E
443
NA
NA
E
15
NA
NA
E
15
NA
NA
E
4
NA
222.41
E
3
17.95(c)
222.41
226.71
T
42
NA
17.42(b),
227.71,
227.72
E
42
NA
222.41
T
42
NA
17.42(b),
227.71,
227.72
E
15
NA
NA
E
90
17.95(c)
NA
T
250
NA
NA
E
3
NA
NA
E
443
NA
NA
E
15
NA
NA
E
15
NA
NA
T
416
NA
NA
E
129
NA
NA
T
29
17.95(d)
NA
T
583
NA
NA
T
566
NA
NA
Tropical seas
West Indies—Bahamas (Great
Inagua Island).
India
Pakistan, India
Tropical and temperate seas In Atlan-
tic Basin, ind. Guff of Mexico.
Tropical, temperate, and subpolar
seas.
Circumglobal In tropical and temper-
ate seas and oceans.
Circumglobal in tropical and temper-
ate seas.
do
India, Bangladesh
U.S.A. (MA)
U.S.A. (LA, MS)
Australia
Colombia, Venezuela
North India, Pakistan
Central India to Bangladesh and
Burma.
U.S.A. (MS)
Iran
U.S.A. (PR)
U.S.A. (CA), Mexico
Entire .
do
do
do
do
do
do
Cameroon, Equatorial Guinea,
Gabon.
Breeding colony
populations on
Pacific coast of
Mexico.
Wherever found ex-
cept where listed
as endangered
below.
Entire
do
do
do
do
do
do
do
do
do
Entire (excluding
Del Norte, Hum-
boldt, Trinity, &
Mendocino Cos.,
CA; Glenn, Lake,
& Sonoma Cos.,
CA, west of the
Central Valley Hy-
drologic Basin;
Sonoma & Marin
Cos., CA, west &
north of San
Francisco Bay
drainages and
Walker Creek
drainage; and NV.
Entire
-------
Frog, Israel painted
Frog, Panamanian golden
Frog, Stephen Island
Salamander, Cheat Mountain
Salamander, Chinese giant
Salamander, desert slender
Salamander, Japanese giant
Salamander, Red Hills
Salamander, San Marcos
Salamander, Santa Cruz long-toed
Salamander, Shenandoah
Salamander, Texas blind
Toad, Arroyo southwestern
Toad, Cameroon
Toad, Houston
Toad, Monte Verde
Toad, Puerto Rlcan crested
Toad, Wyoming
Toads, African viviparous
Fishes
Ala Balik (trout)
Ayumodoki (loach)
Blindcat, Mexican (cattish)
Bonytongue, Asian
Catfish [no common name]
Catfish, giant
Catfish, Yaqui
Cavefish, Alabama
Cave fish, Ozark
Chub, bonytaii
Chub, Borax Lake
Chub,
Chub,
Chub,
Chub,
Chub,
Chub,
Chub.
Chub,
Chub,
Chub,
Chub,
Chub,
Cicek
Cui-ui
Dace,
Chihuahua
humpback
Hutton tui
Mohave tui
Oregon
Owens tui
Pahranagat roundtail (=bonytail)
slender
Sonora
spotfln (=turquolse shiner)
Virgin River
Yaqui
(minnow)
Ash Meadows speckled
Dace, blackside
Dace, Clover Valley speckled
Dace, desert
Dace, Foskett speckled
Dace, Independence Valley speckled
Dace, Kendall Warm Springs
Dace, Moapa
Discoglossus nigriventer
Atetopus varius zetekl
Lelopelma hamiltonl
Plethodon nettingi
Andrias davldianus davidlanus
Batrachoseps aridus
Andrias davldianus japonicus
Phaeognathus hubrichti
Eurycea nana
Ambystoma macrodactylum croceum
Plethodon shenandoah
Typhlomotge rathbuni
Bufo mlcroscaphus caiHomhus
Bufo supercillaris
Bufo houstonensls
Bufo perlglenas
Peltophryne lemur
Bufo hemiophrys baxterl
Nectophrynoides spp
Salmo platycephalus
Hymenophysa (=Botia) curia
Prletella phreatophila
Scleropages formosus
Pangasius sanitwongsei
Pangaslanodon gigas
Ictalurus pricei
Speoplatyrhinus poulsonl
Amblyopsis rosae
Gila elegans
Gila boraxobius
Gila nigrescens
Gila cypha
Gila bicolor ssp
Gila bicolor mohavensis
Oregonichthys (=Hybopsls) crameri
Gila bicolor snyderi
Gila robusta jordani
Erimystax (=Hybopsis) cahnl
Gila ditaenia
Cyprinella (=Hybopsis) monacha
Gila robusta semidnuda
Gila purpurea
Acanthorutilus handiirschl
Chasmistes cujus
Rhinichthys osculus nevadensis
Phoxinus cumberlandensis
Rhinichlhys osculus oligoporus
Eremichthys acros
Rhinichthys osculus ssp
Rhinichlhys osculus lethoporus
Rhinichthys osculus thermalis ..
Moapa coriacea
Israel
Panama
New Zealand
U.S.A. (WV)
Western China
U.S.A. (CA)
Japan
U.S.A. (AL)
U.S.A. (TX)
U.S.A. (CA)
U.S.A. (VA)
U.S.A. (TX)
U.S.A. (CA), Mexico
Equatorial Africa
U.S.A. (TX)
Costa Rica
U.S.A. (PR), British Virgin Islands
U.S.A. (WY)
Tanzania, Guinea, Ivory Coast, Cam-
eroon, Liberia, Ethiopia.
Turkey
Japan
Mexico
Thailand, Indonesia, Malaysia
Thailand
do
U.S.A. (AZ). Mexico
U.S.A. (AL)
U.S.A. (AR, MO, OK)
U.S.A. (AZ, CA, CO, NV, UT, WY) ...
U.S.A. (OR)
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.,
U.S.A.
U.S.A.
U.S.A.
Turkey
U.S.A.
do
(NM), Mexico (Chihuahua)
(AZ. CO. UT. WY)
(OR)
(CA)
(OR)
(CA)
(NV)
(TN.VA)
(AZ), Mexico
(AL, GA, NC, TN, VA)
(AZ, NV, UT)
(AZ), Mexico
(NV)
U.S.A. (KY, TN)
U.S.A. (NV)
do
U.S.A. (OR) .
U.S.A. (NV) ,
U.S.A. (WY)
U.S.A. fNV)
.do
E
3
NA
NA
.do
E
15
NA
NA
.do
E
3
NA
NA
.do
T
358
NA
NA
.do
E
15
NA
NA
.do
E
6
NA
NA
.do
E
15
NA
NA
.do
T
19
NA
NA
..do
T
98
17.95(d)
17.43(a)
..do
E
1
NA
NA
..do
E
358
NA
NA
..do
E
1
NA
NA
..do
E
568
NA
NA
..do
E
15
NA
NA
..do
E
2
17.95(d)
NA
..do
E
15
NA
NA
..do
T
283
NA
NA
..do
E
138
NA
NA
..do
E
15
NA
NA
..do
E
3
NA
NA
..do
E
3
NA
NA
..do
E
3
NA
NA
..do
E
15
NA
NA
..do
E
3
NA
NA
..do
E
3
NA
NA
..do
T
157
17.95(e)
17.44(g)
..do
E
28, 328
17.95(e)
NA
..do
T
164
NA
NA
..do
E
92
17.95(e)
NA
..do
E
94E,
17.95(e)
NA
124
..do
T
132
NA
17.44(g)
...do
E
1
17.95(e)
NA
...do
T
174
NA
17.44Q)
...do
E
2
NA
NA
...do
E
520
NA
NA
...do
E
195
17.95(e)
NA
...do
E
2
NA
NA
...do
T
28
17.95(e)
17.44(c)
...do
T
227
17.95(e)
17.44(o)
...do
T
28
17.95(e)
17.44(c)
...do
E
361
NA
NA
...do
E
157
17.95(e)
NA
...do
E
3
NA
NA
...do
E
1
NA
NA
...do
E
117E,
17.95(e)
NA
127E,
130
...do
T
273
NA
NA
...do
E
370
NA
NA
T
1, 2D,
17.95(e)
17.44(m)
210
T
174
NA
17.44(j)
...do
E
370, 372
NA
NA
E
2
NA
NA
E
1
NA
-------
Species
Common name
Scientific name
Darter, amber
Darter, bayou
Darter, biuemask (=jewel) ..
Darter, boulder (=Elk River)
Darter, Cherokee
Darter, duskytail
Darter, Etowah
Darter, fountain
Darter, goldline
Darter, leopard
Darter, Maryland
Darter, Niangua
Darter, Okaloosa
Darter, relict
Darter, slackwater
Darter, snail
Darter, watercress
Gambusia, Big Bend
Gambusia, Clear Creek
Gambusia, Pecos
Gambusia, San Marcos
Goby, tidewater
Logperch, Conasauga
Logperch, Roanoke
Madtom, Neosho
Madtom, pygmy
Madtom, Scioto
Madtom, Smoky
Madtom, yellowfin
Do
Minnow, loach
Minnow, Rio Grande silvery
Nekogigi (catfish)
Poolfish (=kiliifish), Pahrump
Pupfish, Ash Meadows Amargosa
Pupfish, Comanche Springs
Pupfish, desert
Pupfish, Devils Hole
Pupfish, Leon Springs
Perclna antesella
Etheostoma rubrum
Etheostoma (Doration) sp. ..
Etheostoma wapiti
Etheostoma (Ulocentra) sp.
Etheostoma (Catonotus) sp.
Etheostoma etowahae
Etheostoma fontlcola
Perclna aurolineata
Perclna pantherlna
Etheostoma seUare
Etheostoma nianguae
Etheostoma okaloosae
Etheostoma (Catonotus) chiei
Etheostoma boschungl
Perclna tanasI
Etheostoma nuchale
Gambusia galgel
Gambusia heterochir
Gambusia nobilis
Gambusia georgai
Eucyclogoblus newberryi .,
Perclna jenktnsl
Perclna rex
Noturus placldus
Noturus stanauli
Noturus trautmanl
Noturus baileyl
Noturus tavipinnls
Rhlnlchthys (=Tlaroga) cobitis
Hybognathus amarus
Coreobagrus Ichikawal
Empetrichthys latos
Cyprlnodon nevadensis mionectes .
Cyprlnodon elegans
Cyprlnodon macularlus
Cyprlnodon dlabolls
Cyprinodon bovlnus
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
Special
rules
E
196
17.95(e)
NA
T
10
NA
17.44(b)
E
525
NA
NA
do
E
322
NA
NA
do
T
569
NA
NA
do
E
502
NA
NA
do
E
569
NA
NA
E
2
17.95(e)
NA
do
T
462
NA
NA
do
T
31
17.95(e)
17.44(d)
do
E
1
17.95(e)
NA
do
T
185
17.95(e)
17.44(k)
do
E
6
NA
NA
do
E
525
NA
NA
T
28
17.95(e)
17.44(c)
T
12. 150
NA
NA
E
2
NA
NA
do
E
1
NA
NA
do
E
1
NA
NA
E
2
NA
NA
do
E
98
17.95(e)
NA
do
E
527
NA
NA
do
E
196
17.95(e)
NA
do
E
359
NA
NA
do
T
388
NA
NA
do
E
502
NA
NA
do
E
10
NA
NA
do
E
163
17.95(e)
NA
Entire, except where
T
28, 317
17.95(e)
17.44(c)
listed as an ex-
perimental popu-
lation below.
N. Fork Holston R.,
XN
317
NA
17.84(e)
VA, TN; S. Fork
Holston R., up-
stream to R. Pat-
rick Henry Dam.
TN; Holston R.,
downstream to
John Sevier De-
tention Lake Dam,
TN; and all tribu-
taries thereto.
Entire
T
247
17.95(e)
17.44(q)
do
E
543
NA
NA
do
E
3
NA
NA
do
E
1
NA
NA
do
E
117E,
17.95(e)
NA
127E,
130
do
E
1
NA
NA
do
E
222
17.95(e)
NA
do
E
1
NA
NA
do
E
102
17.95(e)
NA
U.S.A. (AL, GA, TN)
U.S.A. (MS)
U.S.A. (TN)
U.S.A. (AL, TN)
U.S.A. (GA)
U.S.A. (TN, VA)
U.S.A. (GA)
U.S.A. (TX)
U.S.A. (AL, GA. TN)
U.S.A. (AR, OK)
U.S.A. (MD)
U.S.A. (MO)
U.S.A. (FL)
U.S.A. (KY)
U.S.A. (AL, TN)
U.S.A. (AL, GA, TN)
U.S.A. (AL)
U.S.A. (TX)
do
U.S.A. (NM, TX)
U.S.A. (TX)
U.S.A. (CA)
U.S.A. (GA, TN)
U.S.A. (VA)
U.S.A. (KS, MO. OK) ....
U.S.A. (TN)
U S A. (OH)
U.S.A. (TN)
U.SA (TN. VA)
...do
U.S.A. (AZ, NM), Mexico
U.S.A. (NM, TX). Mexico
U.SA (NV)
do
U.S.A. (TX)
U.S.A. (AZ. CA)
U.S.A. (NV)
U.S.A. (TX)
-------
Pupflsh, Owens
Pupfish, Warm Springs
Salmon, chlnook
Cyprlnodon radiosus
Cyprlnodon nevadensis pectoralls
Oncorhynchus tshawytscha
Do
Do
Salmon, sockaye (=red, =blueback) ....
Sculpln, pygmy
Shiner, beautiful
Shiner, blue
Shiner, Cahaba
SUmet, Cape Feat
Shiner, Palezone
Shiner, Pecos bluntnose
Silverslde, Waccamaw
Smett, delta
Spikedace
Splnedace, Big Spring
Splnedace, Little Colorado
Splnedace, White River
Springfish, Hiko White River
Springfish, Railroad Valley
Springfish, White River
Squawfish, Colorado
Do
Stickleback, unarmored threespine
Sturgeon, Gulf
Oncorhynchus nerka
Cottus pygmaeus
Cyprlnella (=Notropis) formose
Cyprinella (=Noiropis) caerulea
Noiropis cahabae
Notropis mefcistocholas
Noiropis sp
Notropis simus pecosensis
Menldia extensa
Hypomesus Iranspacrficus
Meda fulgida
Lepldomeda mollispinls pratensis ...
Lepidomeda vittata
Lepldomeda albivallis
Crenichthys bailayi grandis
Crenichthys nsvadae
Crenichthys baileyi baileyi
Ptychocheilus lucius
do
Gasterosteus aculeatus williamsonl
Acipenser oxyrhynchus desotoi
U.S.A. (CA)
U.S.A. (NV)
North PacHIc Basin from U.S.A.
to Japan.
(CA)
..do
..do
North Pacific Basin from U.S.A.
to Russia.
(CA)
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
do
do
U.S.A.
WY)
-------
Species
Common name
Scientific name
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
s
When
listed
Critical
habitat
Special I
rules 1
E
399
NA
NA |
E
1
NA
NA
E
549
NA
NA
E
223
17.95(e)
NA
E
313
NA
NA
E
184
17.95(e)
NA
E
447
17.95(e)
NA
E
313
NA
NA
T
205
17.95(e)
17.440)
E
3
NA
NA
E
15
NA
NA
E
1
NA
NA
E
48
NA
NA
T
1. 8
NA
17.44(a)
E
1
NA
NA
T
1. 38
NA
17.44(f)
T
2, 8
NA
17.44(a)
T
37
17.95(e)
17.44(e)
T
1.8
NA
17.44(a)
E
588
NA
17.44(a),
222.23
(a)
E
2. 193
NA
NA
-------
Moccasinshell, Alabama
Moccasinshell, Coosa
Mucket, orange-nacre
Mussel, dwarf wedge
Mussel, ring pink (=gotf stick pearly) ...
Mussel, winged mapleleaf
Pearlshell, Louisiana
Pearlymussel, Appalachian
monkeyface.
Pearlymussel, birdwing
Pearlymussel, cracking
Pearlymussel, Cumberland bean
Pearlymussel, Cumberland
monkeyface.
Pearlymussel, Curtis'
Pearlymussel, dromedary
Pearlymussel, green-blossom
Pearlymusset, Higglns' eye
Pearlymussel, little-wing
Pearlymussel, Nlcklin's
Pearlymussel, orange-foot pimple back
Pearlymussel, pale lilliput
Pearlymussel, pink mucket
Pearlymussel, purple cat's paw
Pearlymussel, Tamplco
Pearlymussel, tubercled-blossom
Pearlymussel, turgid-blossom
Pearlymussel, white cat's paw
Peartymussel, white wartyback
Pearlymussel, yellow-blossom
Pigtoe, Cumberland (=Cumbeiland
pigtoe mussel).
Pigtoe, dark
Pigtoe, fine-rayed
Pigtoe, flat (=Marshall's mussel)
Pigtoe, heavy (=Judge Tait's mussel) .
Pigtoe, rough
Pigtoe, shiny
Pigtoe, southern
Pocketbook, fat
Pocketbook, fine-lined
Pocketbook, speckled
Mediortidus acutissimus
Mediortidus parvulus ....
Lampsilis perovalis
Alasmidonta heterodon
Obovaria retusa
Ouadrula fragosa
Margaritsfera hombell
Ouadrula sparsa
Conradilla caelata
Hemistena (=Lastena) lata
Villosa (=Micromya) trabalis
Ouadrula Intermedia
Eploblasma (=Dysnomla) ftorentina
curtlsi.
Dromus dromas
Epioblasma (=Oysnomla) torulosa
gubernaculum.
Lampsilis higgirtsl
Pegias fabula
Megalortaias nicklineana
Plethobasus cooperianus
Toxolasma (=CaruncuHna)
cylindrellus.
Lampsilis abrupta (=orblculata)
Eploblasma (=Dysnomia) obliquata
obliquata (=sulcata sulcata).
Cyrtonaias tampicoensls
tecomatensls.
Eploblasma (=Dysnomla) torulosa
torulosa.
Eploblasma (=Dysnomla) turgldula ....
Eploblasma (=Dysnomla) obliquata
perobliqua.
Plethobasus dcatricosus
Epioblasma (=Dysnomia) fbrentina
ftorentina.
Pleurobema gibberum
Pleurobema furvum
Fusconaia cuneolus
Pleurobema marshalll
Pleurobema taitianum
Pleurobema plenum
Fusconaia cor (=edgariana)
Pleurobema georgianum
Potamilus (=Proptera) capax
Lampsilis altilis
Lampsilis streckerl
U.S.A. (AL, GA, MS)
U.S.A. (AL, GA, TN)
U.S.A. (AL, MS)
U.S.A. (CT, DC. DE, MA, MD, NC,
NH, NJ, NY, PA, VA, VII, Canada
(N.B.).
U.S.A. (AL. IL. IN. KY. OH, PA. TN.
WV).
U.S.A. (IA, IL, IN, KY, MN, MO, NE,
OH, OK, TN, Wl).
U.S.A. (LA)
U.S.A. (TN, VA)
do
U.S.A. (AL, IL. IN, KY, OH. TN. VA) .
U.S.A. (KY, TN, VA)
U.S.A. (AL, TN, VA)
U.S.A. (AR, MO)
U.S.A. (AL, KY, TN, VA)
U.S.A. (TN, VA)
U.S.A. (IA. IL, MN, MO, NE, Wl)
U.S.A. (AL, KY, NC, TN, VA)
Mexico
U.S.A. (AL, IA, IL, IN, KY, OH, PA,
TN).
U.S.A. (AL, TN)
U.S.A. (AL, AR, IL, IN, KY. LA, MO,
OH, PA, TN, VA, WV).
U.S.A. (AL, IL, IN, KY, OH, TN)
Mexico
U.S.A. (AL, IL, IN. KY, TN, WV)
U.S.A. (AL, TN)
U.S.A. (IN. Ml, OH)
U.S.A. (AL. IL. IN. KY, TN)
U.S.A. (AL, TN)
U.S.A. (TN)
U.S.A. (AL)
U.S.A. (AL, TN, VA)
U.S.A. (AL, MS)
do
U.S.A. (AL, IN, KY, TN, VA)
U.S.A. (AL, TN, VA)
U.S.A. (AL, GA, TN)
U.S.A. (AR, IA, IL. IN, KY, MO, MS,
OH).
U.S.A. (AL, GA)
U.S.A. (AR)
NA
T
495
NA
NA
NA
E
495
NA
NA
NA
T
495
NA
NA
NA
E
377
NA
NA
NA
E
369
NA
NA
NA
E
426
NA
NA
NA
T
304, 518
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
366
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
342
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
394
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
423
NA
NA
NA
E
495
NA
NA
NA
E
15
NA
NA
NA
E
262
NA
NA
NA
E
262
NA
NA
NA
E
15
NA
NA
NA
E
15
NA
NA
NA
E
495
NA
NA
NA
E
15
NA
NA
NA
T
495
NA
NA
NA
E
345
NA
NA
-------
Species
Common name
Riffleshell, northern
Riffleshell, tan
Rock-pocketbook, Ouachita
(=Wheeler's pearly mussel).
Spinymussel, James River (=Virginia) .
Spinymussel, Tar River
Stirrupshell
Snails
Ambersnali, Kanab
Limpet, Banbury Springs
Marstonia (snail), royal (=obese)
Riversnail, Anthony's
Shagreen, Magazine Mountain
Snail, Bliss Rapids
Snail, Chlttenango ovate amber
Snail, flat-spired three-toothed
Snail, Iowa Pleistocene
Snail, Manus Island tree
Snail, Morro shoulderband (=Banded
dune).
Snail, noonday
Snail, painted snake coiled forest
Snail, Snake River physa
Snail, Stock Island tree
Snail, tulotoma (=Alabama live-bear-
ing).
Snail, Utah valvata
Snail, Virginia fringed mountain
Snails, Oahu tree
Springsnail, Alamosa
Sprlngsnail, Brunaau Hot
Springsnail, Idaho
Sprlngsnail, Socorro
Insects
Beetle, American burying (=glant car-
rion).
Beetle, Coffin Cave mold
Beetle, delta green ground
Beetle, Hungerford's crawling water ....
Beetle, Kretschmarr Cave mold
Beetle, northeastern beach tiger
Beetle, Puritan tiger
Beetle, Tooth Cave ground
Bestle, valley elderberry longhorn
Butterfly, bay checkerspot
Butterfly, Corsican swallowtail
Scientific name
Epioblasma torulosa rangiana
Epioblasma walker!
Arkansia (=Arcidens) wheeled
Pleurobema (=Fusconala, =ElUptio,
=Canthyra) colllna.
Elliptio (Canthyria) stelnstansana
Quadrula stapes
Oxyloma haydenl kanabensls
Lanx sp
Pyrgulopsls (-Marstonia) ogmorapha
Athearnla anthonyl
Mesodon magazinensls
Taylorconcha serpentlcola
Succlnea chittenangoensis
Trlodopsis platysayoides
Discus macclintockl
Papustyla pulchorrlma
Helmlnthogtypta walkeriana
Mesodon clarkl nantahaia
Anguisplra picta
Physa natrlclna
Orthallcus reses (not incl. nesodryas)
Tulotoma magnHica
Valvata utahensls
Potygyriscus vlrglnlanus
Achatinella spp
Tryonta alamosae
Pyrgulopsis bruneauensls
Fontellcella idahoensls
Pyrgulopsls neomexlcana
Nlcrophorus americanus
Batrisodes texanus
Elaphrus vlrldls
Brychlus hungerfordl
Texamaurops reddelll
Ciclndela dorsalis dorsalis
Cicindela puritana
Rhadine persephone
Desmocerus californlcus dimorphus ..
Euphydryas editha bayensls
Papilio hosphon
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
s
When
listed
Critical
habitat
Special
rules
E
488
NA
NA
E
27
NA
NA
E
446
NA
NA
E
316
NA
NA
E
186
NA
NA
E
262
NA
NA
E
43 IE,
NA
NA
459, 477
E
485
NA
NA
E
538
NA
NA
E
538
NA
NA
T
348
NA
NA
T
485
NA
NA
T
41
NA
NA
T
41
NA
NA
E
41
NA
NA
E
3
NA
NA
E
567
NA
NA
T
41
NA
NA
T
41
NA
NA
E
485
NA
NA
T
41
NA
NA
E
412
NA
NA
E
485
NA
NA
E
41
NA
NA
E
108, 112
NA
NA
E
442
NA
NA
E
489
NA
NA
E
485
NA
NA
E
442
NA
NA
E
351
NA
NA
E
327, 513
NA
NA
T
100
17.95(i)
NA
E
533
NA
NA
E
327, 513
NA
NA
T
396
NA
NA
T
396
NA
NA
E
327
NA
NA
T
99
17.95(1)
NA
T
288
NA
NA
E
486
NA
NA
U.S.A. (IL, IN, KY, Ml, OH, PA, WV),
Canada (Ont.).
U.S.A. (KY, TN, VA)
U.S.A. (AR, OK)
U.SA (VA, WV)
U.S.A. (NC)
U.S.A. (AL, MS)
U.S.A. (AZ, UT)
U.S.A. (ID)
U.S.A. (TN)
U.S.A. (AL, GA, TN)
U.S.A. (AR)
U.S.A. (ID)
U.S.A. (NY)
U.S.A. (WV)
U.S.A. (IA. IL)
Pacific Ocean—Admiralty Is. (Manus
Is.).
U.SA (CA)
U.S.A. (NC)
U.S.A. (TN)
U.SA (ID)
U.SA (FL)
U.SA (AL)
U.S.A. (ID)
U.S.A. (VA)
U.SA (HI)
U.S.A. (NM)
U.SA (ID)
do
U.S.A. (NM)
U.SA (eastern States south to FL,
west to SD and IX), eastern Can-
ada.
U.S.A. (TX)
U.S.A. (CA)
U.SA (Ml. Canada)
U.S.A. (TX)
U.SA (CT, MA. MD, NJ, NY, PA. Rl,
VA).
U.S.A. (CT. MA, MD, NH, VT)
U.S.A. (TX)
U.S.A. (CA)
do
Corsica, Sardinia
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
-------
Butterfly, El Segundo blue
Butterfly, Homerus swallowtail
Butterfly, Karner blue
Butterfly, Lange's metalmark
Butterfly, lotis blue
Butterfly, Luzon peacock swallowtail
Butterfly, mission blue
Butterfly, Mitchell's satyr
Butterfly, Myrtle's silverspot .
Butterfly, Oregon silverspot .
Butterfly, Palos Verdes blue
Butterfly, Queen Alexandra's birdwlng
Butterfly, Saint Francis' satyr
Butterfly, San Bruno elfin
Butterfly, Schaus swallowtail
Butterfly, Smith's blue
Butterfly, Uncompahgre fritillary ....
Dragonfly, Hine's (=Ohlo) emerald
Fly, Delhi Sands flower-loving
Moth, Kern primrose sphinx
Naucorid, Ash Meadows
Skipper, Pawnee montane ..
Arachnids
Harvestman, Bee Creek Cave
Harvestman, Bone Cave
Pseudoscorpion, Tooth Cave .
Spider, spruce-fir moss
Spider, Tooth Cave
Crustaceans
Amphipod, Hay's Spring
Crayfish, cave [no common name]
Do
Crayfish, Nashville
Crayfish, Shasta (=placid)
Fairy shrimp, Conservancy
Fairy shrimp, longhorn
Fairy shrimp, riverside
Fairy shrimp, vernal pool
Isopod, Lee County cave
Isopod, Madison Cave
Isopod, Socorro
Shrimp, Alabama cave
Shrimp, California freshwater ....
Shrimp, Kentucky cave
Shrimp, Squirrel Chimney Cave
(^Florida cave).
Euphilotes (=Shijim!aeoldes)
battoides allyni.
Papilio homerus
Lycaeides metissa samuelis
Apodemla mormo langel
Lycaeides argyrognomon toils ..
Papilio chikae
Icarhia Icarbides mlsslonensls .
Neonympha mitchellil mitchellil.
Speyeria zerene myrtleae
Speyerla zerene hlppolyta
Glaucopsyche lygdamus
palosverdesertsls.
Troldas (=OrnHhoptera) alexandrae ...
Neonympha mitchellil francisci
Callophrys mossii bayensls
HeracHdes (=Papilio) arlstodemus
ponceanus.
Euphiloles (=Shijimiaeoides) enoptes
smithl.
Boloria acrocnema
Somatochlora hineana
Rhaphiomidas terminatus
ebdomlnalis.
Euproserplnus euterpe
Ambrysus amargosus
Hesperla leonardus (=pawnee) mon-
tana.
Texella reddelll
Texella reyesi
Tartarocreagris (=Microcreagris)
texana.
Mlcrohexura monlivaga
Neoleptoneta (=Leptoneta) myoplca ..
Stygobromus hayi
Cambarus aculabrum
Cambarus zophonastes
Orconectes shoupi
Pacifastacus fortis
Branchinecta conservatio
Branchlnecta longiantenna
Streptocephalus wooltoni
Branchinecta lynchl
Lirceus usdagalun
Antrolana lira
Thermosphaeroma (=Exosphaeroma)
thermophilus.
Palaemonias alabamae
Syncaris pacifica
Palaemonias ganteri
Palaemonetes cummingi
U.S.A. (CA)
Jamaica
U.S.A. (IL, IN, MA, Ml, MN, NH, NY,
OH. PA, Wl), Canada (Ont.).
U.S.A. (CA)
..do
Philippines
U.S.A. (CA)
U.S.A. (IN, Ml, NJ, OH)
U.S.A. (CA)
U.S.A. (CA, OR, WA)
U.S.A. (CA)
Papua New Guinea
U.S.A. (NC)
U.S.A. (CA)
U.S.A. (FL) .
U.S.A. (CA)
U.S.A. (CO)
U.S.A. (IL,IN,OH,WI)
U.S.A. (CA)
do
U.S.A. (NV)
U.S.A. (CO)
U.S.A. (TX)
do
do
U.S.A. (NC.TN)
U.S.A. (TX)
U.S.A. (DC) .
U.S.A. (AR) .
do
U.S.A. (TN) ,
U.S.A. (CA) ,
do
do
do
do
U.S.A. (VA)
do
U.S.A. (NM)
U.S.A. (AL) .
U.S.A. (CA)
U.S.A. (KY)
U.S.A. (FL) .
NA
E
14
NA
NA
NA
E
486
NA
NA
NA
E
484
NA
NA
NA
E
14
MA
NA
NA
E
14
NA
NA
NA
E
486
NA
NA
NA
E
14
NA
NA
NA
E
428E,
NA
NA
469
NA
E
472
NA
NA
NA
T
95
17.95(1)
NA
NA
E
96
17.95(i)
NA
NA
E
364
NA
NA
NA
E
539E,
NA
NA
574
NA
E
14
NA
NA
NA
E
13, 159
NA
NA
NA
E
14
NA
NA
NA
E
427
NA
NA
NA
E
573
NA
NA
NA
E
517
NA
NA
NA
T
91
NA
NA
NA
T
181
17.95(i)
NA
NA
T
289
NA
NA
NA
E
327, 513
NA
NA
NA
E
327, 513
NA
NA
NA
E
327
NA
NA
NA
E
576
NA
NA
NA
E
327
NA
NA
NA
E
115
NA
NA
NA
E
499
NA
NA
NA
E
263
NA
NA
NA
E
242
NA
NA
NA
E
337
NA
NA
NA
E
552
NA
NA
NA
E
552
NA
NA
NA
E
512
NA
NA
NA
T
552
NA
NA
NA
E
483
NA
NA
NA
T
123
NA
17.46(a)
NA
E
36
NA
NA
NA
E
323
NA
NA
NA
E
340
NA
NA
NA
E
135
17.95(h)
NA
NA
T
390
NA
NA
-------
Species
Common name
Scientific name
Historic range
Vertebrate popu-
lation where endan-
gered or threatened
Status
When
listed
Critical
habitat
Special
rules
Tadpole shrimp, vernal pool Lepldurus packard! U.S.A. (CA)
NA
552
NA
NA
Symbols used in the four left columns:
Do..." or " do..."—(Ditto) Indicates the entry is the same as the column entry directly above.
Symbols used In the "when listed'' column:
D—Indicates FR where species was Delisted; relisting of the species Is Indicated by subsequent number(s).
E—Indicates Emergency rule publication (see FR document for effective dates); subsequent number(s) indicate FR final rule, if applicable, under 'When listed".
-------
1—32 FR 4001; March 11,1967.
2—35 FR 16047; October 13,1970.
3—35 FR 8495; June 2,1970.
4—35 FR 18320; December 2,1970.
5—37 FR 6176; March 30,1972.
6—38 FR 14678; June 4,1973.
7—39 FR 44991; December 30,1974.
8—40 FR 29864; July 16,1975.
9—40 FR 31736; July 28, 1975.
10—40 FR 44151; September 25,1975.
11—40 FR 44418; September 26,1975.
12—40 FR 47506; October 9,1975.
13—41 FR 17740; April 28,1976.
14—41 FR 22044; June 1,1976.
15A—41 FR 24064; June 14,1976.
15—41 FR 26019; June 24,1976.
16—41 FR 45993; October 19,1976.
17—41 FR 51021; November 19,1976.
18—41 FR 51612; November 23,1976.
19—41 FR 53034; December 3, 1976.
20—42 FR 2076; January 10,1977.
21—42 FR 2968; January 14,1977.
22—42 FR 15971; March 24,1977.
23—42 FR 28137; June 2,1977.
24—42 FR 28545; June 3,1977.
25—42 FR 37373; July 21,1977.
26—42 FR 40685; August 11,1977.
27—42 FR 42353; August 23,1977.
28—42 FR 45528; September 9, 1977.
29—42 FR 58755; November 11,1977.
30—42 FR 60745; November 29,1977.
31—43 FR 3715; January 27,1978.
32—43 FR 4028; January 31, 1978.
33—43 FR 4621; February 3, 1978.
34—43 FR 6233; February 14,1978.
35—43 FR 9612; March 9,1978.
36—43 FR 12691; March 27,1978.
37—43 FR 15429; April 13,1978.
3&-^3 FR 16345; April 18,1978.
40—43 FR 20504; May 12,1978.
41—43 FR 28932; July 3, 1978.
42—43 FR 32808; July 28,1978.
43—43 FR 34479; August 4,1978.
45—44 FR 21289; April 10,1979.
46—44 FR 23064; April 17,1979.
48—44 FR 29480; May 21,1979.
50—44 FR 37126; June 25,1979.
51—44 FR 37132; June 25,1979.
52—44 FR 42911; July 20,1979.
54—44 FR 49220; August 21,1979.
60—44 FR 59084; October 12, 1979.
85—44 FR 69208; November 30, 1979.
86—44 FR 70677; December 7,1979.
87—44 FR 75076; December 18,1979.
88—45 FR 18010; March 20,1980.
90—45 FR 21833; April 2,1980.
91—45 FR 24090; April 8,1980.
92—45 FR 27713; April 23,1980.
93—^45 FR 28722; April 30,1980.
94—45 FR 35821; May 28,1980.
95—45 FR 44935; July 2, 1980.
96—45 FR 44939; July 2,1980.
97—45 FR 47352; July 14,1980.
98—45 FR 47355; July 14,1980.
99—45 FR 52803; August 8,1980.
100—45 FR 52807; August 8,1980.
102—45 FR 54678; August 15,1980.
103—45 FR 55654; August 20, 1980.
105—45 FR 63812; September 25,1980.
106—45 7R 65132; October 1, 1980.
108—46 7R 3178; January 13, 1981.
111—46 FR 11665; February 10,1981.
112—46 FR 4C025; August 6, 1981.
113—46 FR 40664; August 10,1981.
114—47 FR 4204; January 28,1982.
115—47 FR 5425; February 5,1982.
117—47 FR 19995; May 10,1982.
119—47 FR 31670; July 21,1982.
123—47 FR 43701; October 4,1982.
124—47 FR 43962; October 5, 1982.
125—47 FR 46093; October 15,1982.
127—48 FR 612; January 5,1983.
128—48 FR 1726; January 14, 1983.
129—48 FR 28464; June 22,1983.
130—^8 FR 40184; September 2,1983.
131—48 FR 43043; September 21,1983.
132—48 FR 46057; October 11,1983.
134—48 FR 46336; October 12,1983.
135—48 FR 46341; October 12, 1983.
136—48 FR 49249; October 25,1983.
138—49 FR 1994; January 17,1984.
139—49 FR 2783; January 23, 1984.
142—49 FR 7335; February 28, 1984.
143—49 FR 7394; February 29, 1984.
144—49 FR 7398; February 29,1984.
145—49 FR 10526; March 20, 1984.
146—49 FR 14356; April 11,1984.
149—49 FR 22334; May 29,1984.
150—49 FR 27514; July 5, 1984.
156—49 FR 33885; August 27, 1984.
157—49 FR 34494; August 31, 1984.
159—49 FR 34504; August 31,1984.
160—^t9 FR 34510; August 31,1984.
161—49 FR 35954; September 13, 1984.
163—49 FR 43069; October 26, 1984.
164—49 FR 43969; November 1,1984.
166—49 FR 45163; November 15,1984.
168—49 FR 49639; December 21,1984.
169—50 FR 1056; January 9,1985.
170—50 FR 4226; January 30,1985.
171—50 FR 4945; February 4,1985.
173—50 FR 12302; March 28, 1985.
174—50 FR 12305; March 28,1985.
181—50 FR 20786; May 20,1985.
182—50 FR 21792; May 28,1985.
183—50 FR 23884; June 6, 1985.
184—50 FR 24530; June 11,1985.
185—50 FR 24653; June 12, 1985.
186—50 FR 25678; June 20, 1985.
188—50 FR 26575; June 27,1985.
189—50 FR 27002; July 1, 1985.
193—50 FR 30194; July 24,1985.
195—50 FR 31596; August 5,1985.
196—50 FR 31603; August 5,1985.
203—50 FR 37198; September 12,1985.
205—50 FR 39117; September 27,1985.
206—50 FR 39123; September 27,1985.
210—50 FR 50308; December 10,1985.
211—50 FR 50733; December 11,1985.
212—50 FR 51252; December 16,1985.
216—51 FR 6690; February 25,1986.
222—51 FR 10850; March 31, 1986.
223—51 FR 10857; March 31,1986.
224—51 FR 10864; March 31,1986.
227—51 FR 16047; April 30,1986.
228—51 FR 16482; May 2, 1986.
233—51 FR 17980; May 16, 1986.
236—51 FR 23781; July 1,1986.
239—51 FR 27495; July 31, 1986.
241—51 FR 31422; September 3, 1986.
242—51 FR 34412; September 26, 1986.
246—51 FR 34425; September 26, 1986.
247—51 FR 39478; October 28,1986.
248—51 FR 41796; November 19,1986.
250—51 FR 45910; December 23,1986.
251—52 FR 288; January 5, 1987.
258—52 FR 5302; February 20,1987.
261—52 FR 10892; April 6,1987.
262—52 FR 11169; April 7,1987.
263—52 FR 11172; April 7,1987.
265—52 FR 11286; April 8,1987.
267—52 FR 20719; June 3, 1987.
268—52 FR 20999; June 3,1987.
269—52 FR 21063; June 4,1987.
272—52 FR 22430; June 11,1987.
273—52 FR 22585; June 12,1987.
278—52 FR 22943; June 16,1987.
279—52 FR 23151; June 17,1987.
280—52 FR 25232; July 6, 1987.
281—52 FR 25380; July 7, 1987.
282—52 FR 28785; August 3,1987.
283—52 FR 28831; August 4,1987.
284—52 FR 29780; August 11,1987.
287—52 FR 35040; September 16,1987.
288—52 FR 35378; September 18,1987.
289—52 FR 36180; September 25,1987.
290—52 FR 36038; September 25, 1987.
292—52 FR 36779; October 1,1987.
294—52 FR 37423; October 6,1987.
296—52 FR 42068; November 2, 1987.
299—52 FR 42662; November 6, 1987.
304—53 FR 3570; February 5,1988.
312—53 FR 25611; July 8,1988.
313—53 FR 27134; July 18, 1988.
316—53 FR 27693; July 22 1988.
317—53 FR 29337; August 4, 1988.
320—53 FR 33992; September 1, 1988.
322—53 FR 33998; September 1,1988.
323—53 FR 34698; September 7,1988.
327—53 FR 36033; September 16,1988.
328—53 FR 37970; September 28,1988.
334—53 FR 38453; September 30,1988.
336—53 FR 38460; September 30, 1988.
337—53 FR 38465; September 30,1988.
338—53 FR 38469; September 30,1988.
340—53 FR 43889; October 30,1988.
342—53 PR 45865; November 14, 1988.
345—54 FR 8341; February 28, 1989.
348—54 FR 15208; April 17, 1989.
349—54 FR 20602; May 12,1989.
350—54 FR 22906; May 30,1989.
351—54 FR 29655; July 13,1989.
357—54 FR 32331; August 4,1989.
358—54 FR 34468; August 18, 1989.
359—54 FR 34472; August 18,1989.
361—54 FR 35311; August 24,1989.
364—54 FR 38951; September 21,1989.
365—54 FR 39849; September 28,1989.
366—54 FR 39853; September 28, 1989.
369—54 FR 40112; September 29,1989.
370—54 FR 41453; October 10,1989.
371—54 FR 43969; October 30,1989.
372—54 FR 47861; November 17,1989.
376—55 FR 9135; March 12, 1990.
377—55 FR 9451; March 14,1990.
378—55 FR 12191; April 2, 1990.
382—55 FR 12801; April 5, 1990.
-------
30
383—55 FR 12832; April 6,1990.
384—55 FR 13488; April 10,1990.
387—55 FR 18845; May 4,1990.
288—55 FR 21153; May 22,1990.
¦p—55 FR 25591; June 21,1990.
K—55 FR 25595; June 21,1990.
393—55 FR 26194; June 26,1990.
394—55 FR 28213; July 10,1990.
396—55 FR 32094; August 7,1990.
399—55 FR 36647; September 6,1990.
400—55 FR 39416; September 27,1990.
401—55 FR 39860; September 28,1990.
404—55 FR 39872; September 28,1990.
405—55 FR 42966; October 25,1990.
407—55 FR 49623; November 30,1990.
408—55 FR 50006; December 4,1990.
410—55 FR 51112; December 12, 1990.
411—55 FR 53160; December 27,1990.
412—56 FR 800; January 9,1991.
415—56 FR 1459; January 14,1991.
416—56 FR 1463; January 14,1991.
417—56 FR 1463; January 14,1991.
419—56 FR 13600; April 3,1991.
421—56 FR 19814; April 30,1991.
423—56 FR 21087; May 7, 1991.
426—56 FR 28349; June 20,1991.
427—56 FR 28717; June 24,1991.
428—56 FR 28828; June 25,1991.
431—56 FR 37671; August 8,1991.
432—56 FR 40267; August 14,1991.
433—56 FR 41488; August 21,1991.
442—56 FR 43649; September 30,1991.
443—56 FR 43653; September 30,1991.
-56 FR 49658; September 30,1991.
-56 FR 54957; October 23,1991.
I—56 FR 54967; October 23,1991.
49—56 FR 56333; November 4,1991.
154—56 FR 64723; December 12,1991.
455—57 FR 213; January 3,1992.
456—57 FR 594; January 7, 1992.
459—57 FR 13661; April 17,1992.
462—57 FR 14790; April 22,1992.
469—57 FR 21569; May 20,1992.
472—57 FR 27858; June 22,1992.
475—57 FR 28024; June 23,1992.
479—57 FR 45337; October 1,1992.
483—57 FR 54726; November 20,1992.
484—57 FR 59244; December 14, 1992.
485—57 FR 59257; December 14,1992.
486—58 FR 4359; January 14,1993.
487—58 FR 5657; January 22,1993.
488—58 FR 5642; January 22,1993.
489—58 FR 5946; January 25,1993.
492—58 FR 12863; March 5,1993.
493—58 FR 12874; March 5,1993.
494—58 FR 14271; March 16,1993.
495—58 FR 14339; March 17,1993.
496—58 FR 16757; March 30,1993.
499—58 FR 25746; April 27,1993.
502—58 FR 25763; April 27,1993.
503—58 FR 27480; May 10,1993.
505—58 FR 43931; June 30,1993.
508—58 FR 40538; July 28,1993.
512—58 FR 41391; August 3,1993.
t58 FR 43819; August 18, 1993.
58 FR 49874; September 23, 1993.
58 FR 49880; September 23, 1993.
517—58 FR 49887; September 23,1993.
518—58 FR 49937; September 24, 1993.
520—58 FR 53804; October 18,1993.
522—58 FR 54065; October 20,1993.
525—58 FR 68486; October 27,1993.
526—59 FR 5310; February 3,1994.
527—59 FR 5498; February 4,1994.
533—59 FR 10584; March 7,1994.
534—59 FR 13836; March 23,1994.
538—59 FR 17998; April 15,1994.
539—59 FR 18327; April 18,1994.
540—59 FR 31095; June 16,1994
543—59 FR 36995; July 20,1994.
545—59 FR 42691; August 18,1994.
546—59 FR 42711; August 18,1994.
549—59 FR 46002; September 6,1994.
550—59 FR 46715; September 9, 1994.
552—59 FR 48153; September 19,1994.
554—59 FR 49764; September 29, 1994.
557—59 FR 54840; November 2,1994.
561—59 FR 60264; November 22,1994.
562—59 FR 60279; November 22,1994.
563—59 FR 60334; November 23,1994.
566—59 FR 63264; December 8,1994.
567—59 FR 64623; December 15,1994.
568—59 FR 64866; December 16,1994.
569—59 FR 65512; December 20,1994.
571—60 FR 2903; January 12,1995.
573—60 FR 5273; January 26,1995.
574—60 FR 5267; January 26,1995.
576—60 FR 6974; February 6,1995.
577—60 FR 10715; February 27,1995.
579—60 FR 18947; April 13,1995.
580—60 FR 36010; July 12,1995.
582—61 FR 11332; March 20,1996.
583—61 FR 25832; May 23, 1996.
585—61 FR 32356; June 24, 1996.
588—61 FR 48413; September 13,1996.
597—61 FR 54057; October 16,1996.
S17.12 Endangered and threatened plants.
(a) The list in this section contains the
names of all species of plants which have
been determined by the Services to be
Endangered or Threatened. It also contains
the names of species of plants treated as
Endangered or Threatened because they are
sufficiently similar in appearance to
Endangered or Threatened species (see
§ 17.50 et seq.)
(b) The columns entitled "Scientific
name" and "Common name" define the
species of plant within the meaning of the
Act. Although common names are included,
they cannot be relied upon for identification
of any specimen, since they may vary greatly
in local usage. The Services shall use the
most recently accepted scientific name. In
cases in which confusion might arise, a
synonym(s) will be provided in parentheses.
The Services shall rely to the extent
practicable on the International Code of
Botanical Nomenclature.
(c) In the "Status" column the following
symbols are used: "E" for Endangered, "T"
for Threatened, and "E [or T] (S/A)" for
similarity of appearance species.
(d) The other data in the list are
nonregulatory in nature and are provided for
the information of the reader. In the annual
revision and compilation of this title, the
following information may be amended
without public notice: the spelling of species'
names, historical range, footnotes, references
to certain other applicable portions of this
title, synonyms, and more current names. In
any of these revised entries, neither the
species, as defined in paragraph (b) of this
section, nor its status may be changed without
following the procedures of Part 424 of this
title.
(e) The "Historic range" indicates the
known general distribution of the species or
subspecies as reported in the current scientific
literature. The present distribution may be
greatly reduced from this historic range. This
column does not imply any limitation on the
application of the prohibitions in the Act or
implementing rules. Such prohibitions apply
to all individuals of the plant species,
wherever found.
(f)(1) A footnote to the Federal Register
publication(s) listing or reclassifying a
species is indicated under the column "When
listed." Footnote numbers to §§ 17.11 and
17.12 are in the same numerical sequence,
since plants and animals may be listed in the
same Federal Register document That
document, at least since 1973, includes a
statement indicating the basis for the listing,
as well as the efFective date(s) of said listing.
(2) The "Special rules" and "Critical
habitat" columns provide a cross reference to
other sections in Parts 17, 222, 226, or 227.
The "Special rules" column will also be used
to cite the special rules which describe
experimental populations and determine if
they are essential or nonessential. Separate
listings will be made for experimental
populations, and the status column will
include the following symbols: "XE" for an
essential experimental population and "XN"
for a nonessential experimental population.
The term "NA" (not applicable) appearing in
either of these two columns indicates that
there are no special rules and/or critical
habitat for that particular species. However,
all other appropriate rules in Parts 17,217
through 227, and 402 still apply to that
species. In addition, there may be other rules
in this title that relate to such plants, e.g.,
port-of-entry requirements. It is not intended
that the references in the "Special rules"
column list all the regulations of the two
Services which might apply to the species or
to the regulations of other Federal agencies
or State or local governments.
(g) The listing of a particular taxon
includes all lower taxonomic units (see
§ 17.11(g) for examples).
(h) The "List of Endangered and
Threatened Plants" is provided below:
-------
Species
Scientific name
Common name
Historic range
Family
Status
IS
When
Critical
Special
listed
habitat
rules
E
331
MA
NA
E
435
MA
NA
E
243
NA
NA
E
44S
NA
NA
E
467
NA
NA
E
204
NA
NA
E
592
NA
NA
E
220
NA
NA
T
39
NA
NA
T
470
NA
NA
E
325
NA
MA
E
147
NA
NA
E
467
NA
NA
E
590
NA
NA
E
448
NA
NA
E
448
NA
NA
E
590
NA
NA
E
587
NA
NA
T
438
NA
NA
E
547
NA
NA
E
102
NA
NA
T
302
NA
NA
E
179
17.96(a)
NA
E
343
NA
NA
E
80
NA
NA
T
373
NA
NA
E
44
NA
NA
E
570
NA
NA
E
352
NA
NA
E
78
NA
NA
E
539
NA
NA
E
65
NA
NA
T
567
NA
NA
E
311
NA
NA
E
511
NA
NA
E
360
NA
NA
E
497
NA
NA
T
467
NA
NA
E
219
NA
NA
E
501
NA
NA
E
398
NA
NA
T
321
NA
NA
T
295
17.SS<&)
NA
E
244
NA
NA
E
548
NA
NA
E
510
NA
NA
Flowering Plants
Abronia macrocarpa
Abutilon eremitopetalum
Abutilon mttnziasij
Abutilon santSwIcsrtsa
Aceena oxlgim
Acanthornlntha obovata ssp. duttonii .
Achyranthas mutica
Achyranthas splendens var. rotundata
Accnitum rtoveboracanse
Aeschynomene vlrginica
Agathls acuta
Agave arlzonlca
Atectryon macrococcus...
Alsinidondron lychnoides
Atstnkfondron obovatum
Alsinidondron Irinorve
Alsinidondron vlscosum
Amaranthus biownii
Amarsnthus pumilus
Ambrosia dwiranttufatla
Amorpha crenulata
¦Amphiantftus pusif/us
Amslnckia grandidoia
Amsonia kearrtoyana
Ancisirocactus (=Echinocactus
=Mammillaria) tobuschii.
Apios p/iceana
Arabis mcdonaidiana
Arabis persteliatg
Arabis serotina
Arclomecon humilis
Arctostaphyios glandulosa ssp.
crassihlia.
Arctostaphyios hookort (=pungens)
var. ravanii.
Arctostaphyios morroensis
Arenaria cumber lendens/s
Aronaria paludfcola
Argemoneplelacantha ssp.
pinnatisecta.
Argyroxiphium kauenss
Argyroxiphium sandwicense ssp.
macrocephalum.
Argyroxiphium sandwicenso ssp.
sandwicense.
Aristida chaseae
Ar/stida portoff'censis
Asclepias meatXi ....
Asclepias weishii
^s'mina tatrnnr-sro
Astragalus albons
Aslragatus applegalal .....
Large -fruited sand-verbena .
None
Ko'oloa'ula
Nona
Liliwal
San Mateo thornmint
None
Round-leaved chetf-ilower ..
Northern wild monkshood ...
Sensitive joint-vetch
Ssndplain ge rerdia
Arizona agave
Mahoe
Kuawawaenohu
None
do
do
do
Seabeach amaranth
South Texas ambrosia ......
Crenutate lead-plant
Little omphlanthus
Large-flowered tiddleneck
Kearneys btue-star
Tobusch (ishhook cactus ,
Price's potato-bean
McDonald's rock-crass ...
Rock-cress
Shale barren rock-cress .
Dwarf bear-poppy
Del Mar manzanita
Presidio (=Raven"s) manzanita
Manzanita, Morro
Cumberland sandwort
Marsh sandwort
Sacramento prickly-poppy
Ka'u silvorsword
'Ahinahina (=Haleakala silversword) ..
'Ahinahina (=Mauna Kea si(versword)
U.S.A. (TX)
USA.
do
do
do
S.A. (CA)
,S.A. (HI)
...do
S.A. (IA, NY, OH, Wl)
S.A. (DE, MD, NC, NJ, PA, VA)
S.A, (CT. MA. MD, NY, Rl)
S.A. (AZ)
S.A. (HI)
do
do
do
do
do
U.S.A. (DE, MA, MD, NC, NJ, NY,
Rl. SC. VA).
S.A. (TX)
S.A, (FL)
.S.A. (AL, GA. SC)
.S.A. (CA)
.S.A. (AZ)
,S.A. OX)
U.S.A. (AL, IL, KY, MS, TN>
U.S.A. (CA)
U.S.A. (AL.KY.TN)
U.S.A. (VA, WV)
U.S.A. (UT)
U.S.A. (CA), Mexico
U.S.A. (CA)
do
U.S.A. (KY, TN)
U.S.A. (CA.OR.WA)
U.S.A. (NM)
U.S.A. (HI)
do
..do
None U.S.A. (PR)
Pelas del dlablo I .do
Mead's miUweed ' U.S.A. (IA, IL, IN, KS, MO, Wl)
Welsh's mllkwBed I U.S.A. UT)
pawpaw "J.S.A. (FL)
Gushenbury mllk-vatdi t U.S.A. (CA)
Apptegate's mllk-vetah I U.S.A. (OR)
Nyctaglnaceae .....
Malvaceae
do
do
Rosaceae
Lamlaceae
Amaranthaceae ...
do
Ranunculaceaa ...
Fabaceae
Scrophularlaceaa
Agavaceae
Saplndaoeae
Caryophyllaceae .,
do
do ,...
do
Amaranthaceae ...
do
Asfe/aceae
Fabaceae
Scrophular lacaae
Boraginaceae
Apocynaceae
Cactaceae
Fabaceae
Brasslcaceaa ..
do
do
Pap aver aceae
Ericaceae
..do
do
Caryophyllaceae
do
Papaveraceae ...
Asteraceae
do
..do
Poaceae
do
Asclapladacase
do
Anronacaee .. ..
Fabaceae
do
-------
Species
Scientific name
Common name
Historic range
Family
Status
When
listed
Critical
habitat
Special
rules
E
437
NA
NA
do
E
409
NA
NA
E
187
NA
NA
do
T
298
17.96(a)
NA
do
E
353
NA
NA
T
181
17.96(a)
NA
do
E
271
NA
NA
Cactaceae
E
521
NA
NA
Rhamnaceae
E
531
NA
NA
Stercullaceae
E
547
NA
NA
Asteraceae
T
589
NA
NA
Flacourtiaceae
E
255
NA
NA
Fabaceae
E
39
NA
NA
Berberidaceae
E
76
NA
NA
Betulaceae
T
39,560
NA
NA
Asteraceae
E
467
NA
NA
do
E
480
NA
NA
do
E
453
NA
NA
do
T
341
NA
NA
Convolvulaceae
T
297
NA
NA
do
E
559
NA
NA
Campanulaceae
E
530
NA
NA
do
E
480
NA
NA
Buxaceae
E
197
NA
NA
Fabaceae
E
23B
NA
NA
Verbenaceae
E
461
NA
NA
Malvaceae
E
109, 112
NA
NA
Uliaceae
T
575
NA
NA
Myrtaceae
E
529
NA
NA
Arecaceae
T
375
NA
NA
Convolvulaceae
E
596
NA
NA
Onagraceae
T
172
NA
NA
Campanulaceae
E
356
NA
NA
Fabaceae
E
480
NA
NA
Brassicaceae
E
363
NA
NA
Cyperaceae
T
178
17.96(a)
NA
Scrophulariaceae ...
E
575
NA
NA
do
E
26
NA
NA
Brassicaceae
E
395
NA
NA
Rhamnaceae
E
575
NA
NA
do
E
596
NA
NA
Poaceae
E
592
NA
NA
Gentlanaceae
T
181
17.96(a)
NA
do
E
448
NA
NA
Cactaceae
E
208
NA
NA
Fabaceae
E
379
NA
NA
Euphorbiaceae
E
448
NA
NA
Astragalus blbullatus
Astragalus cremnophylax var.
cremnophylax.
Astragalus humillimus
Astragalus montil (-A. limnocharls var.
m.).
Astragalus osterhoutil
Astragalus phoenix
Astragalus robbinsil var. Jesupl
Astrophytum (=Echlnocactus) asterlas
Auerodendron pauciflorum
Ayenia llmitarls
Baccharls vanessae
Banara vanderbiltll
Baptisia arachnifera
Berberls sonnet (=Mahonia s.)
Betula uber
Bldens micrantha ssp. kalealaha
Bldens wlebkel
Blennosperma baker!
Boltonia decurrens
Bonamia grandiftora
Bonamia menziesil
Brighamla Inslgnis
Brighamla rockll
Buxus vahlil
Caesalpinla (=Mezoneuron) kavalense
Calllcarpa ampla
Callirhoe scabrluscula
Calochortus tiburonensis
Calyptranthes thomasiana
Calyptronoma rlvalls
Calystegia stebblnsil
Camissorda benltensis
Campanula robinslae
Canavalia molokaiensis
Cardamlne mlcranthera
Carex specuicola
Castilleja afflnls ssp. neglecta
Castilleja grlsea
Caulanthus callfornicus
Ceanothus ferrisae
Ceanothus roderlckii
Cenchrus agrlmonloldes
Centaurium namophilum
Centaurlum sebaeoldes
Cereus eriophorus var. fragrans
Chamaecrista glandulosa var. mlrabilis
(=Cassla m ).
Chamaesyce celastroldes var.
kaenana.
Pyne's (=Guthrie's) ground-plum
Sentry milk-vetch
Mancos milk-vetch
Heliotrope milk-vetch
Osterhout milk-vetch
Ash Meadows milk-vetch
Jesup's milk-vetch
Star cactus
None
Texas ayenia
Encinttis baccharis (=Coyote bush) ..
Palo de Ramon
Hairy rattleweed
Truckee barberry
Virginia round-leaf birch
Ko'oko'olau
do
Sonoma sunshine (=Baker's
stickyseed).
Decurrent false aster
Florida bonamia
None
'Olulu
Pua 'ala
Vahl's boxwood
Uhluhl
Capa rosa (=pendula cimarrona)
Texas poppy-mallow ....:
Tiburon mariposa lily
None
Palma de manaca or manac palm ...
Stebbins' morning-glory
San Benito evening-primrose
Brooksville (-Robins') bellflower
•Awikiwiki
Small-anthered bittercress
Navajo sedge
Tiburon paintbrush
San Clemente Island Indian paint-
brush.
California jeweifiower
Coyote ceanothus (=Coyote Valley
California-lilac).
Pine Hill ceanothus
Kamanomano (=Sandbur, agrimony)
Spring-loving centaury
'Awiwl
Fragrant prlckly-apple
None
"Akoko
U.S.A. (TN)
U.S.A. (A2) .
U.S.A. (CO, NM)
U.S.A. (UT)
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
U.S. A.
U.S.A.
U.S.A.
U.S.A.
do
do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
(CO)
-------
Chamaesyce (^Euphorbia) deHoldea
ssp. dettoidea.
Chamaesyce (-Euphorbia) deppeana .
Chamaesyce (=Euphorbia) garberi
Chamaesyce halemanul
Chamaesyce herbstil
Chamaesyce kuwaleana
Chamaesyce rockil
Chamaesyce (-Euphorbia) skottsbergll
var. kalaeloana.
Chlonanthus pygmaeus
Chorizanthe howellii
Chorizanthe orcuttiana
Chorizanthe pungens var. hartweglana
Chorizanthe pungens vai. pungens ....
Chorizanthe robusta (incl. vars.
robusta & hartwegii).
Chorizanthe valida
Chrysopsis (=Heterotheca) florldana ...
Cirslum fontinale var. fontinale
Cirslum fontinale var. oblspoense
Cirsium pitcher!
Cirsium vinaceum
Clarkia franciscana
Clarkla speciosa ssp. immaculata
Clematis morefieldil
Clematis socialis
Clermontla drepanomorpha
Clermontia lindseyana
Clermontia oblongifolia ssp. brevipes ..
Clermontla oblongifolia ssp. mauiensis
Clermontia peleana
Clermontia pyrutaria
Clitoria fragrans
Colubrina opposltifolia
Conradina brevHolia
Conradina etonia
Conradina glabra
Conradina verticillata
Cordylanthus maritimus ssp. maritimus
Cordylanthus palmatus
Cordylanthus tenuis ssp. capiilaris
Cornutia obovata
Coryphantha (=Escobaria
=Mammillaria) minima (=C. nelliaae).
Coryphantha ramillosa
Coryphantha (=Cochiseia =Escobaria)
robbinsorum.
Coryphantha scheeri var. robustispina
Coryphantha sneedii (=Escobaria
=Mammillaria) var. leei.
Coryphantha sneedii (=Escobaria
=Mammillaria) var. sneedii.
Cranichis ricartii
Crescentla portoricensls
Crotalaria avonensis
Cryptantha crassipes
CucurbHa okeechobeensis ssp.
okeechobeensis.
Deltoid spurge
Akoko
Garber's spurge ....
None
'Akoko
do
do
Ewa Plains 'akoko
Pygmy fringe-tree
Howell's spineflower
Orcutt's spineflower
Ben Lomond spineflower
Monterey spineflower
Robust (incl. Scotts Valley)
spineflower.
Sonoma spineflower
Florida golden aster
Fountain thistle
Thistle, Chorro Creek bog
Pitcher's thistle
Sacramento Mountains thistle ....
Presidio darkia
Pismo clarkia
Morefield's leather-flower
Alabama leather-flower
'Oha wai
do
do
do
do
do
Pigeon wings
Kauila
Short-leaved rosemary
Etonia rosemary
Apalachicola rosemary
Cumberland rosemary
Salt marsh bird's-beak
Palmate-bracted bird's-beak
Penneil's bird's-beak
Palo de nigua (=capa (uguerilla)
Nellie cory cactus
Bunched cory cactus
Cochise pincushion cactus
Pima pineapple cactus .
Lee pincushion cactus ,
Sneed pincushion cactus
None
Higuero de Sierra
Avon Park harebells
Terlingua Creek cats-eye
Okeechobee gourd
U.S.A. (FL) .
U.S.A. (HI) ..
U.S.A. (FL) .
U.S.A. (HI) ..
do
do
do
do
U.S.A. (FL) .
U.S.A. (CA)
do
do
do
do
do
U.S.A.
U.S.A.
do
U.S.A.
U.S.A.
U.S.A.
do
U.S.A.
do
U.S.A.
do
do
do
do
do
U.S.A.
U.S.A.
U.S.A.
do
do
U.S.A.
U.S.A.
U.S.A.
do
U.S.A.
U.S.A.
(FL) .
(CA)
(IL, IN, Ml. Wl). Canada (Ont.)
(NM)
(CA)
(AL)
(HI)"
(FL)
(HI) .
(FL)
(KY.TN)
(CA), Mexico (Baja California)
(CA)
(PR)
(TX) .
U.S.A. (TX), Mexico (Coahuila)
U.S.A. (AZ), Mexico (Sonora) ...
U.S.A. (AZ), Mexico (Sonora)
U.S.A. (NM)
U.S.A. (NM, TX)
U.S.A. (PR) ..
do
U.S.A. (FL) ...
U.S.A. (TX) ...
U.S.A. (FL) ...
..do
..do
..do
..do
..do
..do
..do
..do
Oleaceae
Polygonaceae
do
do
do
do
do
Asteraceae
do
do
do
do
Onagraceae
do
Ranunculaceae ...
do
Campanulaceae ..
do
do
do
do
do
Fabaceae
Rhamnaceae
Lamlaceae
do
do
do
Scrophulariaceae
do
do
Verbenaceae
Cactaceae
...v..do
do
..do
..do
..do
Orchidaceae ...
Bignoniaceae ..
Fabaceae
Boraginaceae .
Cucurbitaceae
E
192
NA
NA
E
536
NA
NA
T
192
NA
NA
E
464
NA
NA
E
591
NA
NA
E
448
NA
NA
E
591
NA
NA
E
120
NA
NA
E
256
NA
NA
E
472
NA
NA
E
589
NA
NA
E
528
NA
NA
T
528
NA
NA
E
528
NA
NA
E
472
NA
NA
E
232
NA
NA
E
575
NA
NA
E
567
NA
NA
T
315
NA
NA
T
276
NA
NA
E
575
NA
NA
E
567
NA
NA
E
468
NA
NA
E
245
NA
NA
E
595
NA
NA
E
532
NA
NA
E
480
NA
NA
E
467
NA
NA
E
532
NA
NA
E
532
NA
NA
T
500
NA
NA
E
532
NA
NA
E
507
NA
NA
E
507
NA
NA
E
507
NA
NA
T
452
NA
NA
E
44
NA
NA
E
235
NA
NA
E
575
NA
NA
E
307
NA
NA
E
81
NA
NA
T
77
NA
NA
T
214
NA
NA
E
515
NA
NA
T
61
NA
NA
E
82
NA
NA
E
451
NA
NA
E
301
NA
NA
E
500
NA
NA
E
439
NA
NA
E
507
NA
NA
-------
Species
Scientific name
Cyanea acuminata
Cyanea asarlfolia
Cyanea copelandii ssp. copelandii
Cyanea dunbarii
Cyanea grimesiana ssp. grlmeslana ...
Cyanea grimesiana ssp. obalae
Cyanea hamatiflora ssp. carlsonii
Cyanea (=Rollandia) humboldtiana ....
Cyanea koolauensis
Cyanea lobata
Cyanea longiflora
Cyanea macrostegia ssp. gibsonil
Cyanea mannii
Cyanea mceldowneyi
Cyanea pinnatifida
Cyanea platyphylla
Cyanea procera
Cyanea recta
Cyanea remyi
Cyanea (=Rollandia) st-johnil
Cyanea shipmannii
Cyanea stictophylla
Cyanea superba
Cyanea truncata
Cyanea undulata
Cycladenia humilis var. jonesii
Cyperus trachysanthos
Cyrtandra crenata
Cyrtandra cyaneoides
Cyrtandra dentata
Cyrtandra giffardii
Cyrtandra limahullensis
Cyrtandra munroi
Cyrtandra polyantha
Cyrtandra subumbellata
Cyrtandra tintinnabula
Cyrtandra viridiflora
Dalea foliosa (=Petalostemum f.)
Daphnopsis hellerana
Deeringothamnus pulchellus
Deeringothamnus rugelii
Delissea rhytidosperma
Delissea rivularis
Deiissea subcordata
Delissea undulata
Delphinium variegatum ssp. kinkiense
(=D. k.).
Dlcerandra christmanii
Dlcerandra cornutissima
Dlcerandra frutescens
Dicarandra immaculate
Dodecahema (=Centrostegla)
leptoceras.
Dubautia herbstobatae
Common name
Haha
do :
do
do
do
do
do
do
do
do
do
None
Haha
do
do
do
do
do
do
do
do
do
None
Haha
None
Jones cycladenia
Pu'uka'a
Ha'iwale
Mapele
Halwale
do
do
do
do
do
do
do
Leafy prairie-clover
None
Beautiful pawpaw
Rugel's pawpaw
None
•Oha
do
None
San Clemente Island larkspur
Garrett's mint
Longspurred mint
Scrub mint
Lake la's mint
Slender-horned spinefiower
Na'ena'e
Historic range
Family
Status
s
When
listed
CriticST
habitat
Special
rules
E
591
NA
NA
E
530
NA
NA
E
532
NA
NA
E
594
NA
NA
E
592
NA
NA
E
541
NA
NA
E
532
NA
NA
E
591
NA
NA
E
591
NA
NA
E
467
NA
NA
E
591
NA
NA
E
435
NA
NA
E
480
NA
NA
E
467
NA
NA
E
448
NA
NA
E
595
NA
NA
E
480
NA
NA
T
590
NA
NA
E
590
NA
NA
E
591
NA
NA
E
532
NA
NA
E
532
NA
NA
E
467
NA
NA
E
536
NA
NA
E
436
NA
NA
T
229
NA
NA
E
592
NA
NA
E
536
NA
NA
E
590
NA
NA
E
591
NA
NA
E
532
NA
NA
T
530
NA
NA
E
467
NA
NA
E
536
NA
NA
E
591
NA
NA
E
532
NA
NA
E
591
NA
NA
E
422
NA
NA
E
309
NA
NA
E
244
NA
NA
E
244
NA
NA
E
530
NA
NA
E
590
NA
NA
E
591
NA
NA
E
593
NA
NA
E
26
NA
NA
E
207, 362
NA
NA
E
207
NA
NA
E
207, 362
NA
NA
E
180
NA
NA
E
291
NA
NA
E
448
NA
NA
U.S.A. (HI)
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
...do
U.S.A. (AZ, UT)
U.S.A. (Hi)
do
do
do
do
do
do
do
do
do
do
U.S.A. (AU IL. TN)
U.S.A. (PR)
U.S.A. (FL)
do
U.S.A. (HI)
do
do
do
U.S.A. (CA)
U.S.A. (FL) .
do
do
do
U.S.A. (CA)
U.S.A. (HI) ..
Campanulaceae
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
Apocynaceae
Cyperaceae
Gesnerlaceae ....
do
do
do
do
do
do
do
do
do
Fabaceae
Thymelaeaceae .
Annonaceae
do
Campanulaceae
do
do
do
Ranunculaceae .
Lamlaceae
do
do
do
Pofygonaceae
Asteraceae ....
-------
Dubautia latifotia
Dubautia pauciflorula
Dudleys setchellb'
Dudleya traskiae
Echinacea laevigata
Echinacea tennesseensis
Echinocactus horizonthalonius var.
nicholii.
Echinocereus chlsoensis
(-reichenbachii) var. chlsoonsis.
Echinocereus fendlerl (=hempelii of
authors, not FobeJ var. kuenzleri.
Echinocereus lloydii (=E. roetterl var.
I).
Echinocereus reichenbachii var.
albertii (=E. mglanocentrus),
Echinocereus trigiochidiatus var.
arizonlcus (=E arizonicus).
Echinocereus viridiflorus var. davisii
(=E. davisii).
Echlnomastus (^Echinocactus,
=Sclerocactus, =Neolloydia)
mariposensis.
Enceliopsis nudicaulis var. corrugata ..
Eragrostis fosbergii
Eremalche kernensis (=E. parryi ssp.
k.).
Eriastrum densifolium ssp. sanctorum .
Eriastrum hooveri
Erigeron maguirei var. maguirei
Erigeron parishii
Erigeron rhizomatus
Eriodictyon aitissimum
Eriogonum gypsophilum
Eriogonum longifolium var.
gnaphalifolium.
Eriogonum ovaiifolium var. vineum
Eriogonum ovaiifolium var, williamsiae
Eriogonum pelinophilum
Eriophyllum latilobum
Eryngium aristulatum var. parlshii
Eryngium constancei
Eryngium cuneifolium
Erysimum capitatum var. angustatum
Erysimum menziesii
Erysimum teretifolium
Erythronium propullans
Eugenia haematocarpa
Eugenia koolauensis
Eugenia woodburyana
Euphorbia haeleeleana
Euphorbia telephioides
Euirema penlandii
Exocarpos luleolus
Flueggea neowawraea
Frankenia johnslonii
Fremontodendron calHornicum ssp.
decumbens.
None
..do
Santa Clara Valley dudleya
Santa Barbara Island livelnrever
Smooth conetlower
Tennessee purple contiiuwer
Nichol's Turk's head cactus
Chisos Mountain hedgehog cactus ...
Kuenzler hedgehog cactus
Lloyd's hedgehog cactus
Black lace cactus
Arizona hedgehog cactus
Davis' green pitaya
Lloyd's Mariposa cactus
Ash Meadows sunray
Fosberg's love grass
Kern mallow
Santa Ana River wcolly-star
Hoover's woolly-star
Maguire daisy
Parish's daisy
Zuni (=Rhizome) fleabane
Indian Knob mountain balm
Gypsum wild-buckwheat
Scrub buckwheat
Cushenbury buckwheat
Steamboat buckwheat
Clay-loving wild-buckwheat
San Mateo woolly sunflower
San Diego button-celery
Loch Lomond coyote-thistle
Snakeroot
Contra Costa wallflower
Menzies' wallflower
Ben Lomond wallflower
Minnesota trout lily
Uvillo
Niol
None
'Akoko
Telephus spurge
Penland alpine fen mustard
Heau
Mehamehame
Johnston's frankenia
Pine Hill flannelbush
do
do
U.S.A.
do
U.S.A.
U.S.A.
USA.
USA
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
. (CA)
(GA, MD, NC, PA, SC, VA)
(TN)
(AZ)
CTX)
(NM)
(NM, TX)
P*)
(AZ)
OX)
(TX), Mexico (Coahuila)
U.S.A. (NV)
U.S.A. (HI) ..
U.S.A. (CA)
do
do
U.S.A. (U"T) .
U.S.A. (CA)
U.S.A. (NM)
U.S.A. (CA)
U S.A. (NM)
U.S.A. (FL) .
U.S.A. (CA)
U.S.A. (NV)
U.S.A. (CO)
U.S.A. (CA)
do
do
U.S.A.
U.S.A.
do
do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
U.S.A.
U.S.A.
(FL) .
(CA)
(MN)
(PR)
(HI) ..
(PR)
(HI) ..
(FL) .
(CO)
(HI)
do
do
Crassulaceae
do
Asteraceae ...
do
Cactaceae ....
do
do
do
do
do
do
do
Asteraceae
Poaceae ....
Malvaceae .
Polemoniaceae ...
do
Asteraceae
do
do
Hydrophyllaceae
Polygonaceae ....
do
do
do
do
Asteraceae
Apiaceae ...
do
(TX),
(CA)
Mexico (Nuevo Leon)
do
Brassicaceae ...
do
Brassicacae
Liliaceae
Myrtaceae
do
do
Euphorbiaceae
do
Brassicaceae ...
Santalaceae ....
Euphorbiaceae
Frankeniaceae
Sterculiaceae ...
E
464
NA
NA
E
436
NA
NA
E
575
NA
NA
E
39
NA
NA
E
481
NA
NA
E
49
NA
NA
E
71
NA
NA
T
335
NA
NA
E
70
NA
NA
E
67
NA
NA
E
68
NA
NA
E
G2
NA
NA
E
61
NA
NA
T
77
NA
NA
T
161
17.96(a)
NA
E
591
NA
NA
E
395
NA
NA
E
291
NA
NA
T
395
NA
NA
T
202,584
NA
NA
T
548
NA
NA
T
177
NA
NA
E
567
NA
NA
T
110, 112
17.96(a)
NA
T
500
NA
NA
E
548
NA
NA
E
237
NA
NA
E
151
17.96(a)
NA
E
575
NA
NA
E
512
NA
NA
E
194E,
NA
NA
249
E
256
NA
NA
E
39
17.96(a)
NA
E
472
NA
NA
E
528
NA
NA
E
221
NA
NA
E
564
NA
NA
E
536
NA
NA
E
551
NA
NA
E
592
NA
NA
T
463
NA
NA
T
509
NA
NA
E
530
NA
NA
E
559
NA
NA
E
155
NA
NA
E
596
NA
NA
-------
Species
Scientific name
Gahnia lartalonsis
Galactia smallil
Galium califomlcum ssp. slerrae
Gardenia brighamii
Gardenia mannll
Geocarpon minimum
Geranium arboreum
Geranium muttMorum
Gesneria pauciflora
Geum radiatum
Gilia tenuHiora ssp. arenarla
Goetzea elegans
Gouanla hillebrandil
Gouania meyenii
Gouanla vitifolia
Grlndelia traxlno-pratensis
Haplostachys haplostachya
Harperocallis flava
Harrlsla (=Cereus) portorlcensis
Hedeoma todsenli
Hedyotis cookiana
Hedyotis corlacea
Hedyotis degenerl
Hedyotis mannii
Hedyotis parvula
Hedyotis purpurea var. montana
Hedyotis st.-johnll
Helianthus schweinitzil
Helonlas bullata
Hesperolinon congestum
Hesperomannla arborescens
Hesperomannla arbuscuia
Hesperomannla lydgatel
Hexastylis naniflora
Hibiscadelphus distans
Hibiscadelphus grffardianus
Hibiscadelphus hualalalensls
Hibiscadelphus woodil
Hibiscus arnottianus ssp. Immaculatus
Hibiscus brackenridgei
Hibiscus clayl
Hibiscus waimeae ssp. hannerae
Hoffmannseggia tenella
Howeilia aquatilis
Hudsonia montana
Hymenoxys herbacea (=acaulis var.
glabra).
Hymenoxys texana
Hypericum cumulicola
Ilex c'ookil
Ilex sintenisil
Illamna corel
Common name
None
Small's milkpea
El Dorado bedstraw
Na'u or Hawaiian gardenia
Nanu
None
Hawaiian red-flowered geranium ....
Nohoanu
None
Spreading avens
Monterey gilia
Beautiful goetzea or matabuey
None
do
do
Ash Meadows gumplant
None
Harper's beauty
Higo chumbo
Todsen's pennyroyal
'Awiwi
Klo'ele
None
Pilo
None
Roan Mountain bluet
Na Pali beach hedyotis
Schwelnitz's sunflower
Swamp pink
Marin dwarf-flax
None
do
do
Dwarf-flowered heartleaf
Kauai hau kuahiwi
Hau kuahiwi
do
do
Koki'o ke'oke'o
Ma'o hau hele
Clay's hibiscus
Koki'o ke'oke'o
Slender rush-pea
Water howeilia
Mountain golden heather
Lakeside daisy
Texas prairie dawn-flower (=Texas
bitterweed).
Highlands scrub hypericum
Cook's holly
None
Peter's Mountain mallow
Historic range
Family
Status
When
CriticaT
Special
listed
habitat
rules
E
435
NA
NA
E
192
NA
NA
E
596
NA
NA
E
198
NA
NA
E
591
NA
NA
T
275
NA
NA
E
465
NA
NA
E
467
NA
NA
T
578
NA
NA
E
381
NA
NA
E
472
NA
NA
E
176
NA
NA
E
165
17.96(a)
NA
E
448
NA
NA
E
541
NA
NA
T
181
17.96(a)
NA
E
73
NA
NA
E
57
NA
NA
T
397
NA
NA
E
110, 112
17.96(a)
NA
E
530
NA
NA
E
467
NA
NA
E
448
NA
NA
E
480
NA
NA
E
448
NA
NA
E
381
NA
NA
E
441
NA
NA
E
424
NA
NA
T
326
NA
NA
T
575
NA
NA
E
536
NA
NA
E
448
NA
NA
E
436
NA
NA
T
347
NA
NA
E
225
NA
NA
E
595
NA
NA
E
595
NA
NA
E
590
NA
NA
E
480
NA
NA
E
559
NA
NA
E
530
NA
NA
E
590
NA
NA
E
209
NA
NA
T
542
NA
NA
T
107
17.96(a)
NA
T
310
NA
NA
E
218
NA
NA
E
256
NA
NA
E
277
NA
NA
E
461
NA
NA
E
230
NA
NA
U.S.A.
U.S.A.
U.S.A.
U.S.A.
..do
U.S.A.
U.S.A.
..do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
..do
..do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
..do
..do
..do
..do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
SC,
U.S.A.
U.S.A.
do
do
U.S.A.
U.S.A.
do
do
do
do
do
do
do
U.S.A.
U.S.A.
U.S.A.
USA.
(HI) ..
(FL) .
(CA)
(HI) ••
(AR, LA, MO)
(HI)
(PR)
(NC, TN)
(CA)
(PR)
(HI)
(CA, NV)
(HI)
(FL)
(PR)
(NM)
(HI)
(NC, TN)
(HI)
(NC, SC)
(DE. GA. MD, NC, NJ. NY,
VA).
(CA)
(HI)
(NC. SC)
(HI)
(TX)
(CA, ID, MT, OR, WA) .,
(NC)
(IL. OH), Canada (Ont.)
U.S.A. (TX) .
U.S.A. (FL) .
U.S.A. (PR)
do
U.S.A. (VA)
Cyperaceae
Fabaceae
Rubiaceae
do
do
Caryophyllaceae
Geranlaceae
do
Gesneriaceae ....
Rosaceae
Polemoniaceae ..
Solanaceae
Rhamnaceae
do
do
Asteraceae
Lamiaceae
Liliaceae
Cactaceae
Lamiaceae
Rubiaceae
do
do
do
do
do
do
Asteraceae
Liliaceae
Llnaceae
Asteraceae
do
do
Aristolochiaceae
Malvaceae
do
do
do
do
do
do
do
Fabaceae
Campanulaceae
Cistaceae
Asteraceae
..do
Hypericaceae
Aquifoliaceae .
do
Malvaceae
-------
Ipomopsls sanctl-spiritus
Iris lacustris
tschaemum byrone
Isodendrion hosakae
Isodendrion laurifolium ...
Isodendrion longrfollum ..
Isodendrion pyrrfoiium ....
Isotria medeoloides
Ivosia kingll var. eremica
Jacquemontla reclinata
Jatropha costaricensis
Justicla cooleyl
Kokia cookei
Kokia drynarloldes
Kokia kauaiensls
Labordia cyriandraa
Labordia lydgatei
Labordia tinifolia var. wahlawaensls ....
Lasthenia burkel
Layla carnosa
Lembertia congdonii
Lepanthes eltoroensis
Lepidium arbuscuta
Lepidium bamebyanum
Leptocereus graniianus
Lespedeza leptostachya
Lesquerella congesta
Lesquerella HIHormis
Lesquerella kingii ssp. bernardina
Lesquerella lyrata
Lesquerella pallida
Lesquerella tumulosa
Llalris hellerl
Liatris ohlingerae
Lilium occidental
Limnanthes Hoccosa ssp. californica ...
Limnanthes vinculans
Lindera melissHoiia
Lipochaeta faurlel
Lipochaeta kamolensls
Lipochaeta lobata var. leptophylla
Lipochaeta micrantha
Lipochaeta tenulfolia
Lipochaeta venosa
Lipochaeta waimeaensis
Lobelia gaudichaudii ssp. koolauensis
Lobelia monostachya
Lobelia niihauensis
Lobelia oahuensis
Lomatium bradshawii
Lotus dendroideus (=scoparius) ssp.
traskiae.
Holy Ghost Ipomopsls
Dwarf lake iris
Hilo Ischaemum
Aupaka
do
do
Wahine noho kula
Small whorled pogonia
Ash Meadows Ivesia
Beach jacquemontla
Costa Rican Jatropha
Cooley's water-willow
Cooke's kokl'o
Kokl'o (=hau-h«le'ula or Hawaii tree
cotton).
Kokl'o
Kamakahala
do
do
Burke's goldfields
Beach layia
San Joaquin wooly-threads
None
'Anaunau
Barneby ridge-cress (=peppercress) .
None
Prairie bush-clover
Dudley Bluffs bladderpod
Missouri bladderpod
San Bernardino Mountains
bladderpod.
Lyrate bladderpod
White bladderpod
Kodachrome bladderpod
Heller's blazingstar
Scrub blazingstar
Western lily
Butte County meadowfoam
Sebastopol meadowfoam
Pondberry
Nehe
do
do
do
do
None
Nehe
None
do
do
do
Bradshaw's desert-parsley
(=lomatium).
San Clemente Island broom
U.S.A. (NM)
U.S.A. (Ml. Wl), Canada (Ont.)
U.S.A. (HI)
do
do
do
do
U.S.A. {CT, DC, DE, QA, IL. MA,
MD, ME, Ml, MO, NC, NH, NJ, NY,
PA, Rl. SC, TN, VA. VT). Canada
(Ont.).
U.S.A.
-------
Species
Scientific name
Common name
Lupinus aridorum
Lupinus tidestromii
Lyonla truncata var. proctorii
Lyslmachla asperulaefolia
Lysimachla filifolia
Lyslmachla lydgatel
Lyslmachla max/ma (=ternifolla)
Macbridea alba
Malacothamnus dementinua
Manihot walkerae
Marlscus fauriei
Marlscus pennatlformls
Marshallia mohrll
Melicope adscendens
Melicope balloul
Melicope haupuensis
Melicope knudsenii
Melicope (=Pelea) lydgatel
Melicope (=Pelea) mucronulata
Melicope ovalis
Melicope pallida
Melicope quadrangularis
Melicope reflexa
Melicope saint-johnii
Melicope zahlbrucknerl
Mentzelia leucophylla
Mimulus glabratus var. michiganensis
Mirabilis macfarlanel
Milracarpus maxwelliae
Mitracarpus polycladus
Munroldendron racemosum
Myrcla paganil
Myrsine juddil
Myrslne linearifolia
Neraudia angulata
Neraudla ovala
Neraudia serlcea
Nitrophlla mohavensls
Nolina brlttonlana
Nothocestrum brevHIorum
Nothocestrum peltatum
Nototrichium humile
Ochrosla kilaueaensls
Oenothera avlta ssp. eurekensls
Oenothera dettoldes ssp. howellii
Opuntia treleasel
Orcuttia calrfornlca
Ottoschulzla rhodoxylon
Oxypolis canbyl
Oxytheca parlshil var. goodmaniana .
Oxytropis campestris var. chartacea ..
Panicum fauriei var. carter!
Panicum niihauense
Scrub lupine
Clover lupine
None
Rough-leaved loosestrife
None
do
do
White blrds-fn-a-nest
San Clemente Island bush-mallow
Walker's manioc
None
do
Mohr's Barbara's buttons
Alanl
do
do
do
do
do
do
do
do
do
do
do
Ash Meadows blazing-star
Michigan monkey-flower
MacFarlane's four-o'clock
None
do
do
do
Kolea
None
do
do
do
Amargosa niterwort
Britton's beargrass
'Aiea
do
Kulu'i
Hotel
Eureka Valley evening-primrose ....
Antioch Dunes evening-primrose ...
Bakersfieid cactus
California Orcutt grass
Palo de rosa
Canby's dropwort
Cushenbury oxytheca
Fassett's tocoweed
Carter's panicgrass
Lau 'ehu
Historic range
Family
Status
When
listed
Critical
habitat
Special
rules
E
264
NA
NA
do
E
472
NA
NA
Ericaceae
E
501
NA
NA
Primulaceae
E
274
NA
NA
do
E
530
NA
NA
do
E
467
NA
NA
do
E
594
NA
NA
Lamiaceae
T
463
NA
NA
Malvaceae
E
26
NA
NA
Euphorbiaceae
E
445
NA
NA
Cyperaceae
E
532
NA
NA
do
E
559
NA
NA
Asteraceae
T
324
NA
NA
Rutaceae
E
565
NA
NA
do
E
565
NA
NA
do
E
530
NA
NA
do
E
530
NA
NA
do
E
536
NA
NA
do
E
467
NA
NA
do
E
565
NA
NA
do
E
530
NA
NA
do
E
530
NA
NA
do
E
480
NA
NA
do
E
591
NA
NA
do
E
595
NA
NA
Loasaceae
T
181
17.96(a)
NA
Scrophulariaceae ...
E
392
NA
NA
Nyctaginaceae
T
66, 581
NA
NA
Rubiaceae
E
551
NA
NA
do
E
551
NA
NA
Araliaceae
E
530
NA
NA
Myrtaceae
E
529
NA
NA
Myrsinaceae
E
591
NA
NA
do
T
590
NA
NA
Urticaceae
E
448
NA
NA
do
E
595
NA
NA
do
E
559
NA
NA
Chenopodiaceae ....
E
181
17.96(a)
NA
Agavaceae
E
500
NA
NA
Solanaceae
E
532
NA
NA
do
E
530
NA
NA
Amaranthaceae
E
448
NA
NA
Apocynaceae
E
532
NA
NA
Onagraceae
E
39
NA
NA
do
E
39
17.96(a)
NA
Cactaceae
E
395
NA
NA
Poaceae
E
512
NA
NA
Icadnaceae
E
385
NA
NA
Aplaceae
E
217
NA
NA
Polygonaceae
E
548
NA
NA
Fabaceae
T
329
NA
NA
Poaceae
E
133
17.96(a)
NA
do
E
592
NA
NA
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
...do
...do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
...do
U.S.A.
U.S.A.
do
do
do
do
do
do
do
do
do
do
do
U.S.A.
U.S. A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
do
do
do
U.S.A.
U.S.A.
U.S.A.
do
do
do
U.S.A.
do
do
do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
(FL)
(CA)
(PR)
(NC, SC)
(HI)
(CA)
(TX), Mexico
(HI)
(HI)
(Ml)
(ID, OR)
(PR)
(PR), Saba
(HI)
(PR)
(HI)
(CA, NV)
(FL)
(HI)
(PR), Dominican Republic
(DE, GA, MD, NC, SC) ...
(CA)
(Wl)
(HI)
-------
Paronychia chartacBa (=Nyachia
puh/inata).
Pedicuiaris furbishiag
Pediocactus (=Echinocactus, =Utahia)
siteri.
Pediocactus (= Toumeyaj bradyi
Pediocactus despalnli
Pediocactus (=Toumeya) knowitonii
(=P. bradyi vat. k.).
Pediocactus (=Echinocactus,
=Navajoa , =Toumeya, =Utahia)
peeblesiarius var. peeblesiarius.
Penstemon haydenli
Penstemon penlandil
Pentachaeta bellidiflora
Peparomla wheeled
Peucedanum sandwicense
Phacelia argillacea
Phacelia formosula
Phlox nivalis ssp. texensis
Phyllostegia glabra var. lanaiensis
Phyllostegia hirsuta
Phyllostegia kaalaansis
Phyllostegia knudsenii
Phyllostegia wanrvi
Phyllostegia mollis
Phyllostegia parv'rftora
Phyllostegia racemosa
Phyllostegia volutin a
Phyllostegia waimeae
Phyllostegia warshaueri
Phyllostegia wawrana
Physaria obcordata
Pilosocereus (=Cereus) robinii
Pinguicula lonantha
Pityopsis (=Heterotheca, =Chrysapsis)
ruthii.
Plantago hawaiensis
Plantago princeps
Platanthara holochila
Platanthera leucophaea
Piatanthera praectara
Pieodendron macranthum
Pleomele hawaiiensis
Poa mannil
Poa sandvicensis
Poa siphonoglossa
Pogogyne abramsii
Pogogyne nudiuscula
Polygata lewtonii
Polygala smallii
Polygonella basiramia (^ciliala var. b.)
Polygonella myrlophylla
Portulaca scierocarpa
Potamogeton clystocarpus
Polentilla robbinsiana
Papery whitlow-wort
Furbish lousewort
Siler pincushion cactus ..
Brady pincushion cactus
San Rafael cactus
Knowlton cactus
Peebles Navajo cactus
Blowout penstemon
Penland beardtongue
White-rayed pentachaeta .
Wheeler's peperomla
Makou
Clay phacelia
North Park phacelia
Texas trailing phlox
None
do
do
da
do
do
do
Klponapcna
None
do
do
do
Dudley Bluffs twinpod
Key tree-cactus
Godfrey's butterwort
Ruth's golden aster
Laukahi kuahlwi
do
None
Eastern prairie fringed orchid
Western prairie fringed orchid
Chupacallos (=Chupagallo)
Hal a pepe
Mann's bluegrass
Hawaiian bluegrass
None
San Diego mesa mint
Otay mesa mint
Lewton's polygala
Tiny polygala
Wireweed
Sandlaca
Po'e
Little Aguja pondweed
Robblns' clnquefoil
U.S.A. (FL)
U.S.A. (ME). Canada (N.B.)
U.S.A. (AZ. UT)
do
U.S.A. (UT)
U.S A (CO, NM)
U.S.A. (AZ)
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
do
do
do
do
do
do
do
do
do
do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
(NE)
(CO)
(CA)
(PR)
(HI) ..
(u"0
(CO)
(TX) .
(HI) ..
(CO)
(FL), Cuba
(FL)
ON)
U.S.A. (HI)
do
do
U.S.A. (AR, IA, IL, IN. ME, Ml, MO.
NE. NJ, NY. OH, OK. PA, VA, WI),
Canada (Ont., N.B.).
U.S.A. (IA, KS. MN, MO, NO. NE,
OK, SD), Canada (Man.).
U.S.A. (PR)
U.S.A. (HI)
do
do
do
U.S.A. (CA)
U.S.A. (CA), Mexico (Baja California)
U.S.A. (FL)
do
do
do
U.S.A. (HI)
U.S.A. (TX)
U.S.A. Mi VT)
Caryophyllaceae
T
256
NA
NA
Scrophularlaceae ...
E
39
NA
NA
Cactaceae
T
64. 524
NA
NA
do
E
63
NA
NA
do
E
286
NA
NA
do
E
72
NA
NA
E
69
NA
NA
Scrophularlaceae ...
E
285
NA
NA
do
E
353
NA
NA
Asteraceae
E
575
NA
NA
Piperaceae
E
255
NA
NA
Aplaceae
T
530
NA
NA
Hydrophyllaceae
E
44
NA
NA
do
E
121
NA
NA
Polemoniaceae
E
440
NA
NA
Lamiaceae
E
435
NA
NA
do
E
591
NA
NA
do
E
591
NA
NA
do
E
590
NA
NA
do
E
480
NA
NA
do
E
448
NA
NA
do
E
592
NA
NA
E
595
NA
NA
E
595
NA
NA
do
E
530
NA
NA
do
E
595
NA
NA
E
590
NA
NA
Brassicaceae
T
374
NA
NA
Cactaceae
E
153
NA
NA
Lentibulariaceae
T
507
NA
NA
Asteraceae
E
191
NA
NA
Plantaginaceae
E
532
NA
NA
do
E
559
NA
NA
Orchidaceae
E
592
NA
NA
do
T
368
NA
NA
do
T
368
NA
NA
Canellaceae
E
564
NA
NA
Ltllaceae
E
595
NA
NA
Poaceae
E
558
NA
NA
E
464
NA
NA
E
464
NA
NA
Lamiaceae
E
44
NA
NA
do
E
512
NA
NA
Polygalaceae
E
500
NA
NA
do
E
192
NA
NA
Polygonaceae
E
256
NA
NA
do
E
500
NA
NA
Portulacaceae
E
532
NA
NA
Potamogetonaceae
E
450
NA
NA
Rosaceae
E
104
17.9MBI
NA
-------
Species
Scientific name
Primula magulrel
Pritchardla affinls
Pritchardia aylmer-robinsonil
Pritchardia kaalae
Pritchardia munrol
Pritchardia napaliensis
Pritchardia remota
Pritchardia schattaueri
Pritchardia vlscosa
Prunus geniculate
Pteralyxia kauaiansls
Ptillmnium nodosum (=Huviatlle)
Purshla (=Cowanla) subintegra
Quercus hinckleyl
Ranunculus acriformis var. aestivalis
(=acris var. a.).
Remya kaualensis
Remya maulensis
Remya montgomeryi
Rhododendron chapmanii
Rhus michauxii
Rhynchospora knieskemii
Ribes echlnellum
Rollandia crispa
Rorlppa gambellii
Sagittaria fascJculata
Sagittaria secundifblia
Sanicula mariversa
Sanlcula purpurea
Santalum freycinetianum war.
lanaiense.
Sarracenla oreophila
Sarracenla rubra ssp. alabamensis
(=alabamensls ssp. a ).
Sarracenla rubra ssp. Jonesii (=S.
jonesii).
Scaevola coriacea
Schiedea adamantis
Schiedea apokremnos
Schiedea haleakalensis
Schiedea heller!
Schiedea hookeri
Schiedea kaalae
Schiedea kaualensis
Schiedea kealiae
Schiedea lydgatel
Schiedea membranacea
Schiedea nuttallil
Schiedea sarmentosa
Schiedea spergulina var. leiopoda
Schiedea spergulina var. spergulina ...
Schiedea stettarioides
Schiedea verticillata
Common name
Magulre primrose
Loulu
Wahane (=Hawane or loulu)
Loulu
do
do
do
do
do
Scrub plum
Kaulu
Harperella
Arizona cliffrose
Hinckley's oak
Autumn buttercup
None
Maui remya
None
Chapman rhododendron
Mlchaux's sumac
Knieskern's beaked-rush
Miccosukee gooseberry
None
Gambol's watercress
Bunched arrowhead
Krai's water-plantain
None
do
Lanal sandalwood or 'iliahl
Green pitcher-plant
Alabama canebrake pitcher-plant
Mountain sweet pitcher-plant
Dwarf naupaka
Diamond Head schiedea
Ma'oli'oli
None
do
do
do
do
Ma'oli'oli
None
do
do
do
do
do
Laulihilihi (=Ma'oli'oli)
None
Historic range
Family
Status
When
listed
Critical
habitat
U.S.A.
U.S.A.
do
do
do
do
do
do
do
U.S.A.
U.S.A.
U.S.A.
WV)
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
do
do
(U-o
(HI) •
(FL)
(HI)
(AL, AR, GA, MD, NC, SC,
(A2)
(TX)
(UT)
(HI) ..
(FL)
(GA, NC, SC, VA)
(DE, NJ)
(FL, SC)
(HI)
(CA)
(NC. SC)
(AL, GA)
(HI)
U.S.A. (AL, GA, NC, TN)
U.S.A. (AL)
U.S.A. (NC, SC)
U.S.A. (HI)
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
Primulaceae .
Arecaceae ....
do
do
do
do
do
do
do
Rosaceae
Apocynaceae
Aplaceae
Rosaceae
Fagaceae
Ranunculaceae .
Asteraceae
do
do
Ericaceae
Anacardiaceae ..
Cyperaceae
Saxifragaceae ...
Campanulaceae
Brassicaceae
Alismataceae
do
Aplaceae
do
Santalaceae
Sarracenlaceae
do
..do
Goodeniaceae ....
Caryophyllaceae
do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
..do
199
532
586
591
480
590
587
595
590
256
530
332
148
318
355
413
413
413
47
367
429
190
536
511
53
386
448
592
215
56, 89
346
339
231
141
441
467
590
592
448
592
591
480
590
592
594
530
530
590
587
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
-------
Schoenocrambo (=Glaucocarpum)
suffrutescens.
Schoenocrambo argillacea
Schoenocrambo barnebyi
Schoepfia arenarla
Schwalbaa americana
Sdrpus anclstrochaetus
Sderocactus (=Echlnocactus,
=Pediocactus) glaucus (=whlpplel
var. g., =subglaucus, = frankllnil).
Sderocactus (=Coloradoa,
=Echinocactus, =Pediocactus)
mesae-verdae.
Sderocactus (=Padiocactus) wrlghtiae
Scutellaria florldana
Scutellaria montana
Sedum Integrifolium ssp. leedyl
Seneclo franciscanus
Senecio tayneae
Serianthes nelsortii
Sesbania tomentosa
Slcyos alba
Sidalcea nelsonlana
Sidalcea pedata
Silene alexandrl
Silene hawaiiensls
Silene lanceolata
Silene petimanil
Silene polypetala
Slsyrinchium dichotomum
Solanum drymophilum
Solanum incomplelum
Solanum sandwicense
Solidago aibopilosa
Solidago houghtonli
Solidago shortil
Solidago spithamaea
Spermolapis hawaiiensls
Spigelia gentianoides
Spiraea virglniana
Spiranthes diluvialis
Spiranthes parksii
Stahlia monosperma
Stenogyne angusl'ifolia
Stenogyne bifida
Stenogyne campanulata
Stenogyne kanehoana
Stephanomeria malheurensis
Streptanthus albidus ssp. albidus
Streptanthus nlger
Styrax portoricensls
Styrax texana
Suaeda caHfornica
Swallenla alexandrae
Shrubby reed-mustard (=toad-flax
cress).
Clay reed-mustard
Barneby reed-mustard
None
American chaffseed
Northeastern (= Barbed bristle) bul-
rush.
Uinta Basin hookless cactus
Mesa Verde cactus
Wright fishhook cactus
Florida skullcap
Large-flowered skullcap
Leedy's roseroot
San Francisco Peaks groundsel ....
Layne's butterweed
Hayun lagu (Guam), Tronkon guafi
(Rota).
'Ohai
'Anunu
Nelson's checker-mallow
Pedate checker-mallow
None
do
do
do
Fringed campion
White Irisette
Erubia
Popolo ku mal
'Aiakeakua, popolo
White-haired goldenrod
Houghton's goldenrod
Short's goldenrod
Blue Ridge goldenrod
None
Gentian plnkroot
Virginia spiraea
Ute ladies'-tresses
Navasota ladies'-tresses
Cobana negra
None
do
do
do
Malheur wire-lettuce
Metcatf Canyon jewelflower
Tiburon jewelflower
Palo de Jazmi'n
Texas snowbells
Seablite, California
Eureka Dune grass
U.S.A. (UT)
do
do
U.S.A. (PR)
U.S.A. (AL, CT, DE, FL, GA, LA, MA,
MD, Ml, MS, NC, NJ, NY, SC, TN,
VA).
U.S.A. (MA, MD. NY, PA, VA, VT,
WV).
U.S.A. (CO, UT)
U.S.A. (CO, NM)
U.S.A. (UT)
U.S.A. (FL)
U.S.A. (GA, TN)
U.S.A. (MN, NY)
U.S.A. (AZ)
U.S.A. (CA)
Western Pacific Ocean: U.S.A.
(Guam, Rota).
U.S.A. (HI)
do :...
U.S.A. (OR, WA)
U.S.A. (CA)
U.S.A. (HI)
do
do
do
U.S.A. (FL, GA)
U.S.A. (NC)
U.S.A. (PR)
U.S.A. (HI)
do
U.S.A. (KY)
U.S.A. (Ml), Canada (Ont.)
U.S.A. (KY)
U.S.A. (NC, TN)
U.S.A. (HI)
U.S.A. (AL, FL)
U.S.A. (GA, KY, NC. PA, TN, VA,
WV).
U.S.A. (ID, CO, MT, NV, U"T)
U.S.A. (TX)
U.S.A. (PR), Dominican Republic .
U.S.A. (HI)
do
do
do
U.S.A. (OR)
U.S.A. (CA)
do
U.S.A. (PR)
U.S.A. (TX)
U.S.A. (CA)
do
Brassicaceae
do
do
Olacaceae
Scrophulariaceae
Cyperaceae
Cactaceae ..
do
do
Lamiaceae
do
Crassulaceae
Asteraceae ...
do
Fabaceae
do
Cucurbitaceae ...
Malvaceae
do
Caryophyllaceae
do
do
do
do
Iridaceae
Solanaceae
do
do
Asteraceae
do
do
do
Apiaceae
Loganiaceae
Rosaceae
Orchidaceae
do
Fabaceae
Lamiaceae
do
do
do
Asteraceae
Brassicaceae
do
Styracaceae
do
Chenopodiaceae
Poaceae
E
293
NA
NA
T
457
NA
NA
E
457
NA
NA
T
420
NA
NA
E
478
NA
NA
E
425
NA
NA
T
59
NA
NA
T
75
NA
NA
E
58
NA
NA
T
463
NA
NA
E
234
NA
NA
T
460
NA
NA
T
137
17.96(a)
NA
T
596
NA
NA
E
257, 259
NA
NA
E
559
NA
NA
E
595
NA
NA
T
490
NA
NA
E
158
NA
NA
E
480
NA
NA
T
532
NA
NA
E
480
NA
NA
E
448
NA
NA
E
418
NA
NA
E
438
NA
NA
E
319
NA
NA
E
559
NA
NA
E
530
NA
NA
T
308
NA
NA
T
314
NA
NA
E
201
NA
NA
T
175
NA
NA
E
559
NA
NA
E
406
NA
NA
T
389
NA
NA
T
458
NA
NA
E
116
NA
NA
T
380
NA
NA
E
73
NA
NA
E
480
NA
NA
E
464
NA
NA
E
466
NA
NA
E
126
17.96(a)
NA
E
575
NA
NA
E
575
NA
NA
E
461
NA
NA
E
162
NA
NA
E
567
NA
NA
E
39
NA
-------
Species
Scientific name
Common name
Ternstroemta luquillensls
Ternstroemia subsessills
Tetramoloplum arenarium
Tetramoloplum capillars
Tetramotopium fU'rforme
Tetramoloplum lepldotum ssp.
lepidotum.
Tetramoloplum remyl
Tetramoloplum rockil
Tetraplasandra gymnocarpa
Thalictrum cooleyi
Thelypodlum stenopetalum
Thymophylla (=Dyssodia) tephroleuca
Townsendla aprica
Trematolobella slngularls
Trhhllla trlacantha
Trifollum stolonrferum
Trillium perslstens
Trillium rellquum
Tuctorla (-Orcuttia) mucronata
Urera kaalae
Verbesina dissita
Vernonla proctorii
Vicia monzlesli
Vigna o-wahuensls
Viola chamlssonlana ssp.
chamlssonlana.
Viola helenae
Viola kaualensls var. wahiawaensls ..
Viola lanaiensls
Viola oahuensls
Warea amplexlfolla
Warea carter!
Wilkesla hobdyi
Xytosma crenatum
Xyris tennesseensis
Zanthoxylum dlpetalum var.
tomentosum.
Zanthoxylum hawaiiense
Zanthoxylum thomasianum
Zizanla texana
Zlziphus celata
Conifers And Cycads
Abies guatemalensls
Cupressus abramslana
Fitzroya cupressoldes
Torreya taxrfolla
Ferns And Allies
Adenophorus periens
Adiantum vivesil
Palo Colorado
Nona
do
Pamakani
None
do
do
do
'Ohe'ohe
Cooley's meadowrue
Slender-petaled mustard
Ashy dogweed
Last Chance townsendla
None
Bariaco (=guayabacon)
Running buffalo clover
Persistent trillium
Relict trillium
Solano grass
Opuhe
Big-leaved crownbeard
None
Hawaiian vetch
None
Pamakani
None
Nani wai'ale'ale
None
do
Wide-leaf warea
Carter's mustard
Dwarf iliau
None
Tennessee yellow-eyed grass
A'e
do
St. Thomas prickly-ash
Texas wild-rice
Florida zlziphus
Pinabete or Guatemalan fir ...
Santa Cruz cypress
Alerce or Chilean false larch
Florida torreya
Pendant kihi fern
None
Historic range
Family
Status
s
When
listed
Critical
habitat
Special
rules
E
461
NA
NA
E
461
NA
NA
E
532
NA
NA
E
555
NA
NA
E
448
NA
NA
E
448
NA
NA
E
435
NA
NA
T
480
NA
NA
E
536
NA
NA
E
344
NA
NA
E
158
NA
NA
E
152
NA
NA
T
200
NA
NA
E
591
NA
NA
E
303
NA
NA
E
270
NA
NA
E
39
NA
NA
E
306
NA
NA
E
44
NA
NA
E
448
NA
NA
T
589
NA
NA
E
501
NA
NA
E
39
NA
NA
E
559
NA
NA
E
448
NA
NA
E
436
NA
NA
E
590
NA
NA
E
435
NA
NA
E
591
NA
NA
E
266
NA
NA
E
256
NA
NA
E
473
NA
NA
E
464
NA
NA
E
430
NA
NA
E
595
NA
NA
E
532
NA
NA
E
213
NA
NA
E
39
17.96(a)
NA
E
356
NA
NA
T
84
NA
NA
E
252
NA
NA
T
79
NA
NA
E
140
NA
NA
E
559
NA
NA
E
504
NA
NA
U.S.A. (PR)
...do
U.S.A. (HI) ..
...do
...do
...do
...do
...do
...do
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
WV)
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
U.S.A.
...do
...do
(FL. NC)
(CA)
OX)
(UT)
(HI)
(PR)
(AR, IL, IN, KS, KY, MO. OH,
(GA, SC)
(AL, GA, SC)
(CA)
(HI)
(CA), Mexico.
(PR)
(HI)
do
do
do
do
U.S.A. (FL)
do
U.S.A. (HI)
do
U.S.A. (AL, GA, TN)
U.S.A. (HI)
do
U.S.A. (PR, VI)
U.S.A. (TX)
U.S.A. (FL)
Mexico, Guatemala, Honduras, El
Salvador.
U.S.A. (CA)
Chile, Argentina
U.S.A. (FL, GA)
Theaceae ..
do
Asteraceae
do
do
do
do
do
Araliaceae
Ranunculaceae .
Brasslcaceae
Asteraceae
do
Campanulaceae
Meliaceae
Fabaceae
Liliaceae ....
do
Poaceae ....
Urticaceae .
Asteraceae
do
Fabaceae ..
do
Violaceae ...
do
do
do
do
Brasslcaceae ..
do
Asteraceae
Flacourtiaceae
Xyridaceae
Rutaceae
do
do
Poaceae
Rhamnaceae
Pinaceae
Cupressaceae
do
Taxaceae
U.S.A. (HI) ..
U.S.A. (PR)
Grammitidaceae
Adiantaceae
-------
Asplenium (=Phyllitis) scolopendrlum
(=japonica) var. americanum.
Asplenium fragile var. insulare
Ctenitis squamigera
Cyathea dryopteroides
Diellla erecta
Diellia falcata
Diellia pallida
Diellia unisora
Diplazium molokalense
Elaphoglossum serpens
Huperzia (=Lycopodium) mannii
Isoeles louislanensis
Isoetes melanospora
Isoetes tegetlformans
Lycopodium nutans
Marsilea villosa
Polystichum aleuticum
Polystichum calderonense
Pteris lidgatel
Tectaria estremerana
Thelypteris inabonensis :
Thelypteris (=Leptogramma) pilosa
var. alabamensis.
Thelypteris verecunda
Thelypteris yaucoensis
Lichens
Cladonia perforata
Gymnoderma llneare
American hart's-tongue (ern
None
Pauoa
Elfin tree fern
Asplenium-leaved diellia
None
do
do
do
do
Wawa'iole
Louisiana quillwort
Black-spored quillwort
Mat-lormlng quillwort
Wawae'iole
'Ihi'ihi
Aleutian shield-fern (=Aleutian holly-
fern).
None
do
do
None
Alabama streak-sorus fern
.do
..do
Florida perforate cladonia
Rock gnome lichen
U.S.A. (AL, Ml, NY. TN), Canada
(Ont.).
U.S.A. (HI)
do
U.S.A. (PR)
U.S.A. (HI)
do
do
do
do
U.S.A. (PR)
U.S.A. (HI)
U.S.A. (LA)
U.S.A. (GA, SC)
U.S.A. (GA)
U.S.A. (HI)
do
U.S.A. (AK)
U.S.A. (PR)
U.S.A. (HI) ..
U.S.A. (PR)
U.S.A. (PR)
U.S.A. (AL) .
..do
..do
U.S.A. (FL)
U.S.A. (NC.TN)
Asplenlaceae
T
354
NA
NA
do
E
553
NA
NA
do
E
553
NA
NA
Cyatheaceae
E
277
NA
NA
Aspleniaceae
E
559
NA
NA
do
E
448
NA
NA
do
E
530
NA
NA
do
E
541
NA
NA
do
E
553
NA
NA
Lomariopsldaceae ..
E
504
NA
NA
l.ycopodlaceae
E
467
NA
NA
Isoetaceae
E
482
NA
NA
do
E
302
NA
NA
do
E
302
NA
NA
Lycopodiaceae
E
536
NA
NA
Marsileaceae
E
474
NA
NA
Dryopteridaceae ....
E
305
NA
NA
do
E
504
NA
NA
Adiantaceae
E
553
NA
NA
Dryopteridaceae
E
504
NA
NA
Thelypteridaceae ....
E
506
NA
NA
do
T
476
NA
NA
do
E
506
NA
NA
E
506
NA
NA
Cladoniaceae
E
500
NA
NA
E
572
NA
NA
Symbols used in the four left columns:
Do..." or " do..."—(Ditto) Indicates the entry is the same as the column entry directly above.
Symbols used in the "when listed" column:
E—Indicates Emergency rule publication (see FR document for effective dates); subsequent number(s) indicate FR final rule, if applicable, under "When listed".
-------
44
26—42 FR 4C685; August 11,1977.
26—42 FR 4C685; August 11,1977.
39—43 FR 17916; April 26,1978.
M—43 FR 44812; September 28,1978.
¦7—44 FR 24250; April 24, 1979.
Jfe—44 FR 32605; June 6,1979.
53—44 FR 43701; July 25,1979.
56—44 FR 54923; September 21,1979.
57—44 FR 58863; October 2,1979.
58—44 FR 58868; October 11,1979.
59_44 FR 58870; October 11,1979.
61—44 FR 61556; October 25,1979.
62—44 FR 61558; October 25,1979.
63—44 FR 61786; October 26,1979.
64—44 FR 61788; October 26,1979.
65—44 FR 61911; October 26, 1979.
66—44 FR 61913; October 26,1979.
67—44 FR 61916; October 26,1979.
68—44 FR 61920; October 26, 1979.
69—44 FR 61924; October 26, 1979.
70—44 FR 61927; October 26,1979.
71—44 FR 61929; October 26,1979.
72—44 FR 62246; October 29,1979.
73—44 FR 62469; October 30,1979.
74—44 FR 62471; October 30,1979.
75—44 FR 62474; October 30,1979.
76—44 FR 64247; November 6,1979.
77—44 FR 64250; November 6,1979.
78—44 FR 64252; November 6,1979.
79—44 FR 64733; November 7,1979.
80—44 FR 64738; November 7,1979.
81—44 FR 64740; November 7,1979.
82—44 FR 64743; November 7,1979.
£3—44 FR 64746; November 7,1979.
m 44 FR 65005; November 8,1979.
B—45 FR 18929; March 24,1980.
104—45 FR 61944; September 17,1980.
107—45 FR 69360; October 20,1980.
109—46 FR 3184; January 13,1981.
110—46 FR 5730; January 19,1981.
112—46 FR 40025; August 6,1981.
116-47 FR 19539; May 6,1982.
118—47 FR 30440; July 13,1982.
120—47 FR 36846; August 24,1982.
121—47 FR 38540; September 1,1981
122—47 FR 38927; September 10,1982.
126—47 FR 50885; November 10,1982.
133—48 FR 46331; October 12, 1983.
137—48 FR 52747; November 22,1983.
140-49 FR 2786; January 23,1984.
141-49 FR 6102; February 17,1984.
147—49 FR 21058; May 18,1984.
148—49 FR 22329; May 29,1984.
151—49 FR 28565; July 13,1984.
152—49 FR 29234; July 19,1984.
153—49 FR 29237; July 19,1984.
154—49 FR 30201; July 27,1984.
155—49 FR 31421; August 7,1984.
158—49 FR 34500; August 31,1984.
162—49 FR 40038; October 12,1984.
165—49 FR 44756; November 9, 1984.
167—49 FR 47400; December 4,1984.
168—49 FR 49639; December 21,1984.
172—50 FR 5758; February 12,1985.
|P5—50 FR 12309; March 28,1985.
¦6—50 FR 15567; April 19,1985.
"77—50 FR 16682; April 26,1985.
178—50 FR 19373; May 8,1985.
179—50 FR 19377; May 8,1985.
180—50 FR 20214; May 15,1985.
181—50 FR 20786; May 20, 1985.
187—50 FR 26572; June 27, 1985.
190—50 FR 29341; July 18, 1985.
191—50 FR 29344; July 18,1985.
192—50 FR 29349; July 18, 1985.
194_50 FR 31190; August 1, 1985.
197—50 FR 32575; August 13,1985.
198—50 FR 33731; August 21,1985.
199—50 FR 33734; August 21, 1985.
200—50 FR 33737; August 21,1985.
201—50 FR 36089; September 5,1985.
202—50 FR 36091; September 5,1985.
204—50 FR 37863; September 18,1985.
207—50 FR 45618; November 1,1985.
208—50 FR 45621; November 1, 1985.
209—50 FR 45624; November 1,1985.
213—50 FR 51870, December 21,1985.
214—51 FR 956; January 9,1986.
215—51 FR 3185; January 24,1986.
217—51 FR 6693; February 25,1986.
218—51 FR 8683; March 13,1986.
219—51 FR 9820, March 21,1986.
220—51 FR 10521; March 26,1986.
221—51 FR 10523; March 26,1986.
225—51 FR 15906; April 29,1986.
226—51 FR 15911; April 29,1986.
230—51 FR 17346; May 12,1986.
231—51 FR 17974; May 16, 1986.
232—51 FR 17977; May 16,1986.
234—51 FR 22524; June 20, 1986.
235—51 FR 23769; July 1,1986.
237—51 FR 24672; July 8,1986.
238—51 FR 24675; July 8,1986.
240—51 FR 27500; July 31,1986.
243—51 FR 34415; September 26,1986.
244—51 FR 34419; September 26,1986.
245—51 FR 34422; September 26,1986.
249—51 FR 45907; December 23,1986.
252—52 FR 679; January 8,1987.
253—52 FR 682; January 8,1987.
254—52 FR 784; January 9,1987.
255—52 FR 1462; January 14,1987.
256—52 FR 2234; January 21,1987.
257—52 FR 4910; February 18, 1987.
259—52 FR 6651; March 4,1987.
260—52 FR 7426; March 11,1987.
264—52 FR 11175; April 7,1987.
266—52 FR 15505; April 29,1987.
270—52 FR 21480; June 5,1987.
271—52 FR 21484; June 5, 1987.
274—52 FR 22589; June 12,1987.
275—52 FR 22933; June 16,1987.
276—52 FR 22936; June 16,1987.
277—52 FR 22939; June 16,1987.
285—52 FR 32929; September 1, 1987.
286—52 FR 34917; September 16,1987.
291—52 FR 36270, September 28,1987.
293—52 FR 37420; October 6, 1987.
295—52 FR 41440; October 28, 1987.
297—52 FR 42071; November 2,1987.
298—52 FR 42657; November 6,1987.
300—52 FR 44401; November 19,1987.
301—52 FR 46087; December 4,1987.
302—53 FR 3565; February 5, 1988.
303—53 FR 3567; February 5, 1988.
305—53 FR 4629; February 17,1988.
306—53 FR 10884; April 4,1988.
307—53 FR 11612; April 7,1988.
308—53 FR 11615; April 7,1988.
309—53 FR 23742; June 23,1988.
310—53 FR 23745; June 23,1988.
311—53 FR 23748; June 23,1988.
314—53 FR 27137; July 18, 1988.
315—53 FR 27141; July 18, 1988.
318—53 FR 32827; August 26, 1988.
319—53 FR 32830; August 26,1988.
321—53 FR 33996; September 1,1988.
324—53 FR 34701; September 7,1988.
325—53 FR 34705; September 7,1988.
326—53 FR 35080, September 9,1988.
329—53 FR 37972; September 28,1988.
330—53 FR 37975; September 28, 1988.
331—53 FR 37978; September 28, 1988.
332—53 FR 37982; September 28,1988.
333—53 FR 38451; September 30,1988.
335—53 FR 38456; September 30,1988.
339—53 FR 38474; September 30,1988.
341—53 FR 45861; November 14,1988.
343—54 FR 2134; January 19,1989.
344—54 FR 5938; February 7,1989.
346—54 FR 10154; March 10,1989.
347—54 FR 14967; April 14, 1989.
352—54 FR 29658; July 13,1989.
353—54 FR 29663; July 13,1989.
354—54 FR 29730, July 14,1989.
355—54 FR 30554; July 21,1989.
356—54 FR 31196; July 27,1989.
360—54 FR 35305; August 24, 1989.
362—54 FR 38947; September 21, 1989.
363—54 FR 38950, September 21,1989.
367—54 FR 39857; September 28,1989.
368—54 FR 39863; September 28,1989.
373—55 FR 433; January 5,1990.
374—55 FR 4157; February 6,1990.
375—55 FR 4159; February 6,1990.
379—55 FR 12790, April 5, 1990.
380—55 FR 12793; April 5,1990.
381—55 FR 12797; April 5,1990.
385—55 FR 13491; April 10,1990.
386—55 FR 13911; April 13,1990.
389—55 FR 24246; June 15,1990.
392—55 FR 25599; June 21, 1990.
395—55 FR 29370, July 19,1990.
397—55 FR 32255; August 8,1990.
398—55 FR 32257; August 8,1990.
402—55 FR 39864; September 28,1990.
403—55 FR 39867; September 28,1990.
406—55 FR 49050, November 26, 1990.
409—55 FR 50187; December 5,1990.
413—56 FR 1453; January, 14,1991.
414—56 FR 1457; January, 14,1991.
418—56 FR 1936; January, 18,1991.
420—56 FR 16024; April 19,1991.
422—56 FR 19959; May 1,1991.
424—56 FR 21091; May 7, 1991.
425—56 FR 21096; May 7,1991.
429—56 FR 32983; July 18,1991.
430—56 FR 34154; July 26, 1991.
434—56 FR 46239; September 11,1991.
435—56 FR 47694; September 20, 1991.
436—56 FR 47699; September 20, 1991.
437—56 FR 48751; September 20, 1991.
438—56 FR 48755; September 20, 1991.
439—56 FR 49636; September 30, 1991.
440—56 FR 49639; September 30, 1991.
441—56 FR 49643; September 30, 1991.
445—56 FR 49853; October 2,1991.
-------
45
448—56 FR 55785; October 29,1991.
450—56 FR 57849; November 14,1991.
451—56 FR 60937; November 29,1991.
452—56 FR 60940; November 29,1991.
453—56 FR 61182; December 2, 1991.
457—57 FR 1403; January 14,1992.
458—57 FR 2053; January 17,1992.
460—57 FR 14653; April 22,1992.
461—57 FR 14785; April 22,1992.
463—57 FR 19819; May 8,1992.
464—57 FR 20588; May 13,1992.
465—57 FR 20592; May 13,1992.
466—57 FR 20595; May 13,199Z
467—57 FR 20787; May 15,1992.
468—57 FR 21564; May 20,1992.
470—57 FR 21574; May 20,1992.
,471—57 FR 24199; June 8,1992.
472—57 FR 27858; June 22,1992.
473—57 FR 27863; June 22,1991
474—57 FR 27867; June 22,1992.
476—57 FR 30168; July 8,1992.
477—57 FR 44340; September 25, 1992.
478—57 FR 44708; September 29,1992.
480—57 FR 46339; October 8, 1992.
481—57 FR 46344; October 8,1992.
482—57 FR 46747; October 28,1992.
490—58 FR 8242; February 12,1993.
491—58 FR 11552; February 26,1993.
497—58 FR 18035; April 7, 1993.
498—58 FR 18041; April 7, 1993.
500—58 FR 25754; April 27, 1993.
501—58 FR 25758; April 27,1993.
504—58 FR 32311; June 9,1993.
506—58 FR 35891; July 2,1993.
507—58 FR 37443; July 12, 1993.
509—58 FR 40547; July 28, 1993.
510—58 FR 40551; July 28, 1993.
511—58 FR 41383; August 3,1993.
512—58 FR 41391; August 3,1993.
515—58 FR 49879; September 23,1993.
519—58 FR 52030; October 6 1993.
521—58 FR 53807; October 10/18/93.
523—58 FR 62050; November 24, 1993.
524—58 FR 68480; December 27,1993
528—59 FR 5510; February 4 1994.
529—59 FR 8141; February 18 1994.
530—59 FR 9327; February 25, 1994.
531—59 FR 10324; March 2,1994.
532—59 FR 10324; March 4,1994.
535—59 FR 13840; March 23,1994.
536—59 FR 14493; March 28,1994.
537—59 FR 15345; April 1,1994.
541—59 FR 32937; June 27,1994.
542—59 FR 35864; July 14,1994.
544—59 FR 42176; August 17,1994.
547—59 FR 43652; August 24, 1994.
548—59 FR 43652; August 24,1994.
551—59 FR 46718; September 9,1994.
553—59 FR 49031; September 26, 1994.
555—59 FR 49863; September 30,1994.
556—59 FR 50857; October 6,1994.
558—59 FR 56333; November 10,1994.
559—59 FR 56350; November 10,1994.
560—59 FR 59177; November 16,1994.
564—59 FR 60568; November 25,1994.
565—59 FR 62352; December 5,1994.
567—59 FR 64623; December 15,1994.
570—60 FR 61; January 3,1995.
572—60 FR 3562; January 18, 1995.
575—60 FR 6684; February 3,1995.
578—60 FR 12846; March 7,1995.
581—60 FR 10697; March 15, 1996.
584—61 FR 31058; June 19,1996.
586—61 FR 41023; August 7,1996.
587—61 FR 43184; August 21,1996.
589—61 FR 52384; October 7,1996.
590—61 FR 53088; October 10,1996.
591—61 FR 53107; October 10,1996.
592—61 FR 53123; October 10, 1996.
593—61 FR 53130; October 10,1996.
594—61 FR 53137; October 10,1996.
595—61 FR 53152; October 10,1996.
596—61 FR 54358; October 18,1996.
SPECIES REMOVED FROM THE
ENDANGERED AND THREATENED
LISTS
The Service's listing regulations at 50 CFR
424.11(c) and (d) are as follows:
(c) A species shall be listed or reclassified
if the Secretary determines, on the basis of
the best scientific and commercial data
available after conducting a review of the
species' status, that the species is endangered
or threatened because of any one or a
combination of the following factors:
(1) The present or threatened destruction,
modification, or curtailment of its habitat or
range;
(2) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(3) Disease or predation;
(4) The inadequacy of existing regulatory
mechanisms; or
(5) Other natural or manmade factors
affecting its continued existence.
(d) The factors considered in delisting a
species are those in paragraph (c) of this
section as they relate to the definitions of
endangered or threatened species. Such
removal must be supported by the best
scientific and commercial data available to
the Secretary after conducting a review of the
status of the species. A species may be
delisted only if such data substantiate that it
is neither endangered nor threatened for one
or more of the following reasons:
(1) Extinction. Unless all individuals of the
listed species had been previously identified
and located, and were later found to be
extirpated from their previous range, a
sufficient period of time must be allowed
before delisting to indicate clearly that the
species is extinct.
(2) Recovery. The principal goal of the
U.S. Fish and Wildlife Service and the
National Marine Fisheries Service is to return
listed species to a point at which protection
under the Act is no longer required. A species
may be delisted on the basis of recovery only
if the best scientific and commercial data
available indicate that it is no longer
endangered or threatened.
(3) Original data for classification in error.
Subsequent investigations may show that the
best scientific or commercial data available
when the species was listed, or the
interpretation of such data, were in error.
The following list of wildlife and plants
removed from the lists at §17.11 and § 17.12
is provided for informational purposes only
and is not codified in the Code of Federal
Regulations.
Editorial notes on primary reasons for
delisting used In previous versions of the
table or in the table below:
Extinct—The first five species to be delisted
for this reason were determined to have been
extinct before the Act was passed in 1973.
Recovered—Citing recovery as the primary
reason for delisting is often a simplification;
factors such as the discovery of additional
populations and/or habitat or the
development of effective management
procedures for sustainable levels of harvest
may be involved in recovery in complex ways.
Original data in error—Subsequent
investigations may show that the best
scientific or commercial data available when
the species was listed, or the interpretation
of such data, were erroneous, incomplete or
affected by subsequent amendment of the Act.
In the following table this reason for delisting
is subdivided into the following:
(1) Better data (foreign scientific and
commercial information).
(2) Scientific (Taxonomic) revision of the
listing basis (subsequent to listing).
(3) Amendment of the Act (the scope of
listing under Section 4).
(4) Additional discoveries of previously
unknown populations and/or habitat.
NOTE: This Special Reprint Is Current
as of October 31, 1996
Common name
Scientific name
Historic range
Former vertebrate popu-
lation where endangered
or threatened
U.& onty
Entire -
Entire
Entire
Former
status
Delisted
Citation
Primary Reason
Duck, Mencan ...
Pupflsh, Tecopa .
Cisco, longjaw ....
Pfte, blue
Anas "<£a2im -
Cyprhodon nevadansis calkJaa.
Coragonus alpanaa
Stizostedion vttreum gtaucum ...
U.S A. (AZ, NM, TX) to
central Mexico.
U.S A. (CA)
U.S.A. and Canada (Lakes
Michigan, Huron, Erie).
U.S A. and Canada (Lakes
Erie, Ontano).
43 FR 32256-61; July 25,
1978.
47 FR 2317-19; January 15,
1982.
48 FR 39941-43; Septem-
ber Z 1983.
48 FR 39941-43, Septem-
ber 2. 1983.
Scientific revisioa
Extinct
Extinct
Extinct
-------
46
Species
Common name
Stisntfflc name
Historic range
Former vertebrate popu-
lation where endangered
or threatened
Entire
Porida
NA
Entire
NA
U.S. Atlantic coast, FL,
AL
Entire
Entire .... -
Entire
Entire
Entire .
NA
NA
NA
NA
NA ...»
NA
Eastern North Pacific
Ocean—coastal and
Bering, Beaufort, and
Chukchi Seas.
Entire ..
Entire
Australia
Australia
NA
Former
status
Delisted
Citation
Primary Reason
Sparrow, Santa Barbara song .
¦reefrog, Pine Barrens
Nearly mussel, Sampson's
Turtle, fndian flap-sheSed
Butterfly, Bahama swaOowtafl ..
PeScan, brown (Atlantic coast
and eastern Quit population).
Dove, Patau .
Fantad, Patau (Old Wortd
flycatcher).
Owl, Patau „
Alligator, American ..
Gambusia, Amistad
(=Goodenough).
MBk-vetcK Rydberg
Cactus, purple-spined hedge-
hog.
Sparrow, dusky seaside -
Gtobeberry, Tumamoc
Cactus, spineless hedgehog ....
PwnyroyaJ, Mddttricfc ...
Whale, gray (eastern North Pa-
cific population).
Falcon, Arctic peregrine.
Kangaroo, eastern gray .
kangaroo, red ,
Hangaroo, western gray .
Bldens, cuneate
Mektsfdza meJodZa gramme* ..
Hyta anderaoni ...... .
Eptotiksma (aDysrtomia)
oorpsonL
Ussamys punctata punctata
IfmiitffiJ.ij (aPapSo)
SfXtraemon bcnhctei
P&acsnus ccodertaib .
GaiBcoiumba csrttrcna
fWpktura lapkia -
Pymgiaux (oQtusj podargkta ....
ASfgator tvississippbnsia
Gambusia amistadansis
Astragalus periama.
Echtnocareus engetncnnS var.
purpuraus.
Ammotframus (=Ammosp!za}
msfitimus nigrescans..
Tumamcca macdougaJB
Echinocarota trfgbchkHatua var,
biennis,
Hedeoma apfcutatum....
EscMchtius robustus ,
Fatco peregmua tundrlus..
Maavpus gigantovs (all subsp.
except tasmanienste).
Macrqpus rutus
Macropus Artgjnosus .
Bktens cuneeta
U.S.A. (CA) ..
U.SA (FL, AL NC, SC, NJ)
USA (IL. IN)
fnrfa, Pakistan, Bangladesh
USA (FL), Bahamas
USA (CaroSnas to TX,
CA), West Indes, C. and
S. America—ooastaL
W. Pacific—Patau Islands
W. Pacrfo—PaJau Islands ...
W. Pacific—Paiau Islands ...
Southeastern USA
U.SA (TX) ..
U.SA (UT)
USA (UT) ..
USA (FL)
U.SA (AZ), Mexico
U.SA (CO, UT)
U.SA (NM, TX) -
North Pacific Ocean—coast-
al and Bering Sea, for-
mefty North Atlantic
Ocean.
Nests from northern Alaska
to Greenland; wirters to
Central and South Amer-
ica.
Australia -
Entire
Entire
U.SA (HI)
E.T
E
48 FR 48338—37; October
12, 1983.
46 FR 52740-43; November
22. 1983.
4S FR 1057-58; January 9,
1984.
48 FR 7394-08; February
29. 1984.
49 FR 34501-04; August
31, 1984.
50 FR 4945; February 4,
1985
50 FR 37192-64; Septem-
ber 12 1985
SO FR 37192-94; Septem-
ber 12 1985.
50 FR 37192-64; Septem-
ber 12, 1985.
52 FR 21083; June 4, 1987
52 FR 86083-85; December
4, 1987.
S4 FR 37941-43; Septem-
ber 14, 1989.
54 FR 46749-61; November
27, 1969.
55 FR 51112-14; December
12, 199a
58 FR 33562-65; June 18,
1993.
58 FR 49242—44; Septem-
ber 22. 1993.
58 FR 49244-47; Septem-
ber 22,1993.
59 FR 31095; June 16,
1994.
59 FR 50796-805; October
5, 1994.
SO FR 12387-906; March 9,
1995.
60 FR 12887-906; March 9,
1995.
60 FR 12887-906; March 9,
1995.
61 FR 4372-3; February 8,
1996.
Extinct
Additional discoveries.
Extinct
Better data
Amendment ot the Act
Recovered.
Recovered.
Recovered.
Recovered.
Recovered.
Extinct
Recovered.
Scientific revs ion.
Extinct
Additional discoveries.
Scientific revision.
Additional discoveries.
Recovered
Recovered.
Recovered.
Recovered.
Recovered.
Scientific revision.
-------
ENDANGERED
SPECIES
'his Species is Protected Under the
Endangered Species Act of 1973
General
information
What is an Endangered Species?
According to the federal Endangered
Species Act, an endangered species is "any
species which is in danger of extinction
throughout all or a significant portion of its
range." There are nearly 700 native plants
and animals currently designated as endan-
gered on the list ot Endangered and Threatened
Wildlife and Plants. There are about 500
foreign species listed as endangered.
What is a Threatened Species?
A threatened species is detined as "any
species which is likely to become endan-
gered within the foreseeable tuture through-
out all or a significant portion ot its range." .
There are about 200 native plants and
animals currently listed as threatened,
as well as about 40 foreign species.
The Endangered Species Act of 1973
^Animals and plants have come and gone
Hce life on earth began. However, habitat
destruction and other causes ot species'
decline have accelerated the extinction
rate. What used to take millions of years is
now compressed into decades.
In the past, solutions seemed easy. When
an animal or plant needed protection, laws
were passed to prohibit killing or destroying
it, or a refuge was established for it, or provi-
sions were made to teed it through the win-
ter months. In such manner the American
Destruction and degradation of habitat are currently
the leading causes of extinction for both plants and
animals. Clear-cutting forests near nvers can cause
excessive erosion, and the increased silt in the
waterways can suffocate fish. This caused the
Michigan grayling, a trout-like sport fish, to become
extinct in the 1920s.
buffalo, elk, antelope, and trumpeter swan
were brought back from very low numbers
to at least viable populations.
Now, far more complex factors threaten
plant and animal life. In parts of the West,
eagles are electrocuted when they perch
on power transmission poles. In Florida,
hatching sea turtles are lured into the cities
because they mistake the reflected city
lights for the starlit sky over the ocean.
Salmon migrating upstream die from nitro-
gen saturation caused by the compression of
bubbles under power dam spillways.
Congress passed the Endangered Species
Act in 1973 to help save species facing the
risk of extinction. The U.S. Fish and
Wildlife Service and the National Marine
Fisheries Service became the designated
federal agencies with responsibility for
administering the law.
How does the Endangered Species Act
Protect Species?
The Act prohibits "take" of listed species,
which includes killing, harming, or harassing
the species. It also provides species protec-
tion by requiring federal agencies to ensure
activities they conduct, authorize, or fund
do not jeopardize the continued existence
of listed species. Federal agencies consult
with the Fish and Wildlife Service or the
National Marine Fisheries Service to allow
their projects to go forward at the same time
species are protected.
To provide the same flexibility to pnvate
developers, two provisions of the Act—
Habitat Conservation Plans and Special
4(d) Rules—can be used to avoid or resolve
conflicts between private development pro-
jects (or other activities) and the protection
of endangered species. Both of these
measures may allow development (or other
activities) to proceed as long as steps are
taken to ensure the long-term
protection of a species.
zxsary
9 9 3
What Causes Species to Become
Endangered?
Habitat Destruction, Degradation, and
Fragmentation. Once abundant throughout
the Southeast, the red-cockaded wood-
pecker rapidly declined as its pine forest
habitat was altered for a variety of uses, pn-
marily timber harvest and agriculture. It
nests and roosts exclusively in cavities of
older, living pine trees.
The species was listed as endangered in
1970 (under a previous endangered species
law). The current red-cockaded wood-
pecker population, estimated to be 10,000
to 14,000 birds, is fragmented into isolated
islands of populations ranging from Texas
east to Virginia.
Habitat protection on federal and pri-
vate lands in the Southeast may enhance
recovery efforts for the red-cockaded wood-
pecker. The U.S. Forest Service is working
closely with the Fish and Wildlife Service to
preserve red-cockaded woodpecker colonies
on National Forests. And in 1993, the
Georgia-Pacific Company established a
landmark conservation agreement with the
Fish and Wildlife Service to help save the
woodpecker on approximately 4 million
acres of company land.
Gray Wolf. The
gray wolf is one of
about 65 native
mammals on the
list of Endangered
and Threatened
Wildlife and
Plants.
-------
Environmental Pollution. Endangered
species otten serve as indicators of environ-
mental problems that may also affect
people. A good example is freshwater
mussels. Several mussels are endangered in
large part'due to pollution ot the waterways
where thev live. Contamination commonly
results from agricultural pesticide runoff,
municipal sewage disposal, and industrial
waste discharge.
Of course, people relv on the nation's
waterways, too. For example, healthy rivers
are sources ot food and water as well as pop-
ular places for recreational activities. There-
fore, our own health and well-being are in
jeopardy when these areas become polluted.
Introduction of Exotic (Non-Native)
Species. Introduced species can, if uncon-
trolled, increase and become a threat to
other species ot wildlife. Foxes released by
Russian and American tur traders in the
Aleutian Islands of Alaska nearly destroyed
the Aleutian Canada goose.
Rats introduced by sailing ships to the
Hawaiian Islands played havoc with nesting
birds. Mongooses (African weasels) were
imported to control the rats; but they, them-
selves, turned on nesting birds and were a
serious factor in bringing near extinction to
the nene goose.
In addition, diseases and parasites, intro-
duced hv international trade, have caused
such disasters in America as Dutch elm dis-
ease and chestnut blight which have driven
two native trees nearly to extinction.
Commercial Exploitation. Many early
laws passed to protect animals and plants
were poorly written and/or inadequately
enforced. This made it relatively easy tor
rare, native plants such as some cactus, car-
nivorous orchid, and others to pass into
commercial trade.
The demand tor exotic pets, such as par-
rots and other wild birds, has caused many
ot these species to become endangered.
Also, some animal parts, such as those
of bear species, rhinoceros, and tiger, are
considered by some Asian cultures to have
medicinal powers. The illegal wildlife trade
is a very lucrative business, and the demand
for these animal parts is a growing threat
to their very
survival.
Atlantic Loggerhead Sea
Turtle. The loggerhead sea turtle, which weighs
from 300 to 900 pounds when full grown, is one of
the 46 native reptiles and amphibians on the list.
Everglade Kite. Among some 90 North American
birds on the list is the Everglade kite, a hawk that
feeds solely on the apple snail.
Elephants and many species of sea turtle
are also endangered due in large part to the
demand tor ivory and turtle shell for jewelry
and other wildlife products.
Natural Factors
No one knows exactly why some animals
and plants flourish for thousands of years
while others vanish within a relatively short
time. But if those species that do survive
exhibit a common trait, that trait is adapt-
ability. The animal or plant that is able to
change its requirements to fit changes in its
environment holds the vital key to survival.
The likelihood of recovery for an endan-
gered species is very much affected by its
ability to adapt.
Conversely, animals and plants that
rigidly resist change, or specialize rather
than adapt, are more vulnerable to extinc-
tion. The Everglade kite, for instance, feeds
only on the apple snail; and the black-
footed ferret ot the Great Plains teeds
almost entirely on the prairie dog. The
Tobusch fishhook cactus, in Texas, will live
only along the bottoms of intermittent
streams, or washes, that remain dry for long
periods of time. All these species are precar-
iously dependent on extremely narrow
resources or habitats. They are comparable
to people who have only one skill in a job
market that is constantly changing.
The Human Factor
Some plants and animals will become
extinct for reasons not yet fully under-
stood by science. Some may die out
regardless of what we can do for
them. Extinction remains a fact of
life on this earth. But a disregard
for the many manmade factors
contributing to destruction of our
natural world could soon cause us to find
our own survival in question.
The fact is we do not know all of the
functions of each species in our ecosystems
and their effects on and potential benefits to
man. That is why the Endangered Species
Act is designed to protect all species in dan-
ger ot extinction, not only those that we
know a lot about and understand—other-
wise we might discover their value only after
it is too late.
Inevitably, attempts to judge which
species are worth protecting and which art
not would be lacking, as we may never know
enough information about the intricate web
ot lite. Once a species is extinct there is no
way to correct past actions to
bring it back, but
endangered means 4^55?
there's still time.
Knowlton Cactus.
More than 450
native plants are
listed as endan-
gered or threatened.
Birdwing Pearly
Mussel. Among the
75 listed native snails
and clams is the bird-
wing pearly mussel.
Socorro Isopod. Thirteen
native crustacean and 27
native insect species are
included on the list.
Humpback Chub. The
humpback chub is one of
several species of fish in
the Colorado River System
whose populations are
suffering because of habi-
tat destruction. There are
currently more than 100
native fishes on the list.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
Habitat
ti
All species of animals and plants
need a proper combination ot
food, water, cover, and space in
order to live and reproduce. Together,
these elements make up their "habitat,"
an area meeting these needs. Habitat is
the key to the survival ot any species.
Why Habitat Needs Vary
The specific habitat requirements of
many animals and plants differ, although a
variety of species may live in the same
area. White-tailed deer, ruffed grouse,
and tree squirrels, for example, prefer
woodlands, while cotton-tail rabbits and
song sparrow favor fields. Waterfowl,
fishes, mussels, and pitcher plants are at
liome in wetlands or rivers, while other
species, such as the desert tortoise and
most cacti, depend on dry habitat. The
common pigeon, starlings, and roof rats
can easily adapt to the urban habitats ot
large cities, towns, and suburbs.
Some animals may require different
habitats at various stages ot their lives.
For example, when young wild turkeys
(called poults) hatch, they must teed on
insects for protein. To meet this dietary
need of her young, the female turkey, or
hen, selects meadows or open fields where
insects are abundant. As the poults
grow, the hen begins to lead them
into forested habitats where they
can obtain berries, seeds, and
nut crops such as acorns or
hazelnuts.
When wild turkeys reach
their adult stage, they pre-
fer large forested areas
with mature trees and
very little underbrush.
This type of habitat
When wild turkeys reach their
kdult stage, they prefer large
^rested areas with mature trees
and very little underbrush. This
type df habitat enables them
to use their extremely keen
eyesight to detect predators.
enables them to use their extremely keen
eyesight to detect predators. At the same
time, thev can find truit produced by
oaks, beech, dogwood, and persimmon, as
well as insects, salamanders, crustaceans,
slugs, and centipedes to eat. Because
turkeys usually drink water at least twice
a day, ideal turkey habitat also has an
ample water supply.
Another example is the brook trout.
These colorful freshwater fish must have
cold, clean water in which to live and
reproduce. Silt and water pollution can
interfere with reproduction of brook trout
and that of their primary food source,
aquatic insects, as well as decrease the
available habitat tor other aquatic
wildlife. Muddy water may also favor the
growth ot undesirable plants and bacteria.
When trout lay their eggs, they find
gravel bars in the streambed where the
eggs can settle, hidden from predators
such as crayfish. Atter the young trout
hatch, they must have aquatic plants,
quiet pools, and bottom rubble to provide
cover to escape from larger fish as well
as great blue herons, mink, and other
predators. Availability of food such as
aquatic insect larvae is especially impor-
tant to brook trout. If the
... trout do not have
enough to
eat, they will
not grow to
full size.
The point is that each animal and
plant species must have suitable and often
quite different kinds ot habitat in order to
survive. And that habitat must include
the tour essential ingredients—food,
water, cover, and space.
When trout lay their eggs, they find gravel bars in the'
streambed where the eggs can settle, hidden from
predators such as crayfish. After the young trout hatch,
they must have aquatic plants, quiet poo s. and bottom
rubble to provide cover to escape great tlue herons,
mink, and other predators.
Managing Habitat to Benefit Wildlife
Wildlife managers try to maintain,
change, or enhance habitats in order to
produce certain kinds and numbers of
animals and plants. A manager wishing to
increase the number ot wild turkeys in a
particular area would first determine the
deficiencies ot the habitat and find ways
to improve it. There might be too much
ground cover or too few mature trees for
production of nuts. The area may lack
fruit-producing shrubs and vines, or have
a shortage of the small, open areas used
by poults to teed on grasshoppers and
other insects. By cutting immature trees
to make small forest openings and leaving
mature, nut-producing trees and fruiting
shrubs, the habitat can be altered so it
meets the needs ot wild turkeys.
Habitat can be maintained or managed
for virtually all wildlife species. Ducks and
other waterfowl, as another example, ben-
efit from the management ot wetlands
habitat along the four major "flyways," or
migration pathways, in North America.
Waterfowl need wetlands habitat for nest-
-------
ing and feeding on their long, annual
migrations. Wildlife managers use dikes,
levees, pumps, and other water control
devices to provide adequate wetlands
habitat for these migrating waterfowl.
Habitat and Endangered Species
Conserving habitat is especially critical
for the continued survival ot endangered
plants and animals. Habitat loss or degra-
dation is often the key factor which has
led to a species becoming endangered.
Another factor contributing to the
imperiled status of many endangered
species is a lack of adaptability to different
environmental conditions, such as habi-
tat. If a species can only live in a certain
The Kirtland's warbler—a songbird on the verge
of extinction—has declined, in part, because of
loss of habitat.
type of habitat, such as grassland, and
much of that habitat is destroyed, the
species may become endangered. Other
species are more adaptable, and can live
in many different habitat types.
The Kirtland's warbler —a songbird on
the verge of extinction —has declined, in
part, because of the loss of its habitat.
These warblers need large expanses of
woodlands in which to nest. Thickets of
small jack pine mixed with many small
openings is the ideal habitat. Forest fires
play an important role in creating this
kind of habitat, keeping vegetation as low
ground cover which conceals the war-
blers' nests from snakes or competitors
such as the cowbird.
Forest fires can be dangerous if
they burn out of control, so until
recently land managers practiced
strict fire prevention and
fought any wildfires that
occurred. Today, however,
biologists and forest man-
agers are realizing fire has
Wetlands are the most biologically
diverse habitats, meaning they
support hundreds of different kinds
of plants and animals. Waterfowl
species, such as the trumpeter swan,
are particularly dependent on wetland
areas for their survival.
an important role in creating and main-
taining nesting habitat for warblers and
other wildlife. Fife also maintains the
sunny, open habitat needed by many
endangered plants that cannot grow in
shady areas or compete with more
aggressive vegetation.
One example is the prairie
fringed orchid, a rare wildflower,
which is threatened by the
invasion of trees and shrubs
into its grassland habitat.
Wildfires may have helped in
the past to keep its habitat
open, and it is possible that careful
use of burning or mowing by habitat
managers can help bring about the
orchid's recovery. When using fire as a
management tool, many special precau-
tions are taken to ensure that these fires
do not burn out ot control.
The Importance of Wetlands Habitat
Perhaps the most important type of
wildlife habitat is wetlands. These areas
are often called marshes, bogs, swamps,
ponds, potholes, and bayous. Historically,
wetlands were often regarded as waste-
lands, breeding areas for mosquitoes, and
suitable only for draining. In fact, more
than half of this country's original wet-
lands have been drained and filled in
since Colonial times. More recently, how-
ever, wetlands have become recognized as
vital to the survival of hundreds of ani-
mals and plants, including nearly half the
nation's endangered species.
Wetlands are also important to people
because they filter pollutants and sedi-
ments from water, provide dependable
water supplies, and serve as a natural
means of flood and erosion control.
Some of the numerous animals that
depend on wetlands are ducks, geese,
beaver, frogs, turtles, and muskrats.
Conserving habitat is
especially critical for the
continued survival of endan-
gered plants and animals, such as
the Florida panther, perhaps, the most I
endangered mammal in the U.S.
Typical wetland
plants include
cattails, cord-
grass, and
trees such
as willows
and cypress.
The U.S. Fish and
Wildlife Service man-
ages millions of acres of wetlands as part
of the National Wildlife Refuge System.
To date, more than 50C national wildlife
refuges have been established nationwide,
many along the four flyways to protect
wetlands habitat for migratory waterfowl.
Many other important habitats are also
included in the refuge system.
Protecting Habitat Helps People. Too
Wildlife and plants, especially those
species which are endangered, are often
viewed as the "canary in the coal mine,"
serving as a warning signal that the envi-
ronment is about to become unhealthy for
people, too. For example, many mussel
species are endangered because of pollu-
tants in the water supply—the same water
supply people often depend on for their
drinking water.
Creating, restoring, enhancing, and
protecting areas of habitat can prevent
the loss of wildlife and stem the resulting
decline in the quality of the environment
tor people, too.
Conserving remaining areas ot
wildlite habitat is a large but very impor-
tant task. Every concerned citizen can
become involved. To learn more about
wildlite and its habitat in your area, con-
tact the state or local natural resources
agency, local chapters of conservation
organizations, or the U.S. Fish and
Wildlife Service.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
BALD
Eagle
Haliaeetus leucocephalus
$To?^
The bald eagle is truly an all-American
bird — it is the only eagle unique to
North America. It ranges over most
of the continent, from the northern reaches
ot Alaska and Canada down to northern
Mexico.
While our national symbol was in danger
ot extinction throughout most ot its range
25 years ago, the bald eagle has made a
tremendous comeback, its populations
greatly improving in numbers, productivity,
and security in recent years.
Male bald eagles generally measure 3 teet
from head to tail, weigh 7 to 10 pounds, and
have a wingspan of about 61/: feet. Females
are larger, some reaching 14 pounds and
having a wingspan ot up to 8 teet. This
striking raptor has large, pale eyes; a power-
ful yellow beak; and great, black talons. The
(distinctive white head and tail feathers
appear only after the bird is 4 to 5 years old.
Bald eagles are believed to live 30 years or
longer in the wild, and even longer in captiv-
ity. They mate for life and build huge nests in
the tops of large trees near rivers, lakes,
marshes, or other wetland
areas. Nests are often re-used
year after
year. With
addi-
i
i
m&M-
The Fish and Wildlife Service recently announced
¦hat bald eagles in the lower 48 states have recov-
'ered to the point that those populations that were
previously considered endangered are now consid-
ered threatened. Subsequently, the Service formally
upgraded those populations under the Endangered
Species Act to mark this progress.
tions to the nests made annually, some may
reach 10 teet across and weigh as much as
2,000 pounds. Although bald eagles may-
range over great distances, they usually
return to nest within 100 miles ot where thev
were raised.
Bald eagles normally lay two to three
eggs once a year and the eggs hatch after
about 35 days. The young eagles are flying -
within 3 months and are on their own about
a month later. However, disease, lack of
food, bad weather, or human interference
can kill many eaglets; sometimes only about
half will survive their first year.
The staple of most bald eagle diets is fish,
but they will feed on almost anything they
can catch, including ducks, rodents, snakes,
and carrion. In winter, northern birds
migrate south and gather in large numbers
near open water areas where fish or other
prey are plentiful.
Wildlife experts believe there may have
been 25,000 to as many as 75,000 nesting
bald eagles in the lower 48 states when the
bird was adopted as our national symbol in
1782. Since that time, the bald eagle has
suffered from habitat destruction and degra-
dation, illegal shooting, and contamination
of its food source, most notably due to the
pesticide DDT. By the early 1960s there
were fewer than 450 bald eagle nesting pairs
in the lower 48 states.
Bald eagles have few natural enemies.
But in general they need an environment of
quiet isolation; tall, mature trees; and clean
waters. Those conditions have changed over
much of the bald eagle's former habitat.
Meanwhile, these birds of prey became
prey themselves. Although primarily fish
and carrion eaters, bald eagles and other
raptors were seen as marauders that killed
chickens, lambs, and other domestic live-
stock. As a consequence, large numbers
were shot by farmers, ranchers, and others.
In 1940, noting that the national bird was
"threatened with extinction," Congress
passed the Bald Eagle Protection Act which
made it illegal to kill, harass, possess (with-
out a permit), or sell bald eagles. In 1967,
bald eagles were officially declared an endan-
gered species (under a law that preceded the
Endangered Species Act ot 1973) in all areas
ot the United States south of the 40th paral-
lel. Federal and state government agencies,
along with private organizations, successfully
sought to alert the public about the bald
eagle's plight and to protect its habitat from
further destruction.
The greatest threat to the bald eagle's
existence arose from the widespread use of
DDT and other pesticides after World War
II. DDT was sprayed on croplands through-
out the country and its residues washed
into lakes and streams. There, they were
absorbed by aquatic plants and small animals
that were eaten by fish. The contaminated
fish, in turn, were consumed by bald eagles.
The chemical interfered with the bald
eagle's ability to develop strong shells for its
eggs. As a result, bald eagles and many
other bird species began laying eggs with
shells so thin they often broke during incu-
bation or otherwise failed to hatch. Their
reproduction disrupted, bald eagle popula-
tions plummeted. As the dangers of DDT
became known, in large part due to Rachel
Carson's famous book Silent Spring, this
chemical was banned for most uses in the
U.S. in 1972.
In addition to the adverse effects of
DDT, bald eagles also died from lead
poisoning as a result of feeding on hunter-
killed or crippled waterfowl containing lead
shot and from lead shot that was inadver-
tently ingested by the waterfowl. (In 1991, a
5-year program to phase out the use of lead
shot for waterfowl hunting was completed
by the U.S. Fish and Wildlife Service.)
Gradually, the Fish and Wildlife Service
assembled the largest colony of breeding
bald eagles in captivity at its Patuxent
Wildlife Research Center near Laurel,
Maryland, in a major effort to return
healthy eagles to the wild (the center is now-
run by the National Biological Service).
Patuxent's scientists enhanced the
species' breeding potential by removing the
bald eagle's first clutch of eggs and incubating
them artificially. The bald eagles would usu-
ally then lay a second clutch, which the birds
-------
Bald Eagle Pairs
Lower 48 States—1963-1993
5000 n
4000 -
3000 -
2000 -
Pairs
0-
417
As a recovery method during the 1970s and 80s,
biclcgists placed eaglets into the nest of adult pairs
whose own eggs tailed to hatch. The pair would
then serve as "foster parents."
were allowed to incubate themselves. In all,
124 bald eagles were hatched at Patuxent.
These captive-hatched bald eagles were
an important source for restocking wild pop-
ulations in certain areas ot the country and
helped to reestablish a broader distribution.
Patuxent's program came to an end in 1988,
as bald eagles began to reproduce more
successfully in the wild, and the center
turned its efforts toward other more
critically endangered species.
some states continue reintroduction
efforts, and two methods are generally used.
Eaglets used
for
reintroduction may be
captive-hatched or,
since usually only two
young per nest survive,
thev may be transferred
from a bald eagle nest
with a clutch of more
than two.
These "extra" eaglets
are placed in the nest ot
an adult pair whose own
eggs are infertile or fail
to hatch. The "foster
parents" readily adopt
the chicks and raise
them as their own.
Another method,
called hacking, is a
procedure adapted from
the sport of falconry. At
8 weeks of age, nestling eaglets are placed on
manmade towers located in remote areas
where bald eagle populations are low or non-
existent. The eaglets are kept in an enclosure
and fed by humans who stay out of sight.
When the birds are capable of flight, at about
12 weeks old, the enclosure around the artifi-
cial nest is opened and the birds are free to
leave. Food is still provided at the release site
until the birds learn to fend for themselves in
the wild.
With these and other recovery methods,
as well as habitat improvement and the ban-
ning of DDT, bald eagle populations have
steadily increased. From fewer than 450
nesting pairs in the early 1960s, there are
now nearly 4,500 adult bald eagle nesting
pairs and an unknown number of young and
subadults in the conterminous U.S. In the
last few years, several states have had breed-
ing bald eagles for the first time in years.
Until recently, the bald eagle was listed
as endangered under the Endangered
Species Act in 43 of the lower 48 states
4452
4016
3747
3391
3020
2680
2475
'757
1875
1188
II
90 92 94
Numbers represent pairs of adult bald eagles that are occupying a territory
(nesting area). As juvenile bald eagles (less than 4 years of age) are not
counted, the total number of bald eagles far exceeds these numbers.
and listed as threatened in
Michigan, Minnesota,
Oregon, Washington, and Wisconsin.
(There are about 40,000 bald eagles in
Alaska and none in Hawaii.) "Endangered"
means a species is considered in danger of
extinction throughout all or a significant
portion ot its range, while "threatened" is
a less dire category, meaning a species is
considered likely to become endangered
but not in danger of extinction.
Then, in July 1995, the Fish and Wildlife
Service announced that bald eagles in the
lower 48 states have recovered to the point
that those populations that were previously
considered endangered are now considered
threatened. Subsequently, the Service for-
mally upgraded those populations under
the Endangered Species Act to mark this
progress—another endangered species
success storv.
While habitat loss still remains a threat
to the bald eagle's full recovery, most
experts agree that its recovery to date is
encouraging. Soon our national symbol
soaring the skies may become a common
sight for Americans to once again behold.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
Bald eagles nonially lay two to three eggs once a year, which hatch after about 35 days.
The eaglets lean to fly within 3 months and are on their own about a month later.
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
American alligator
Alligator mississippiensis
sTo^
The American alligator is a
member of the crocodile family,
whose members are living fossils
from the Age of Reptiles, having
survived on earth for 200 million years.
However, the alligator can be distin-
guished from the crocodile by its head
shape and color. The crocodile has a
narrower snout, and unlike the alligator,
has teeth in the lower jaw which are
visible even when its mouth is shut.
In addition, adult alligators are black,
while crocodiles are brownish in color.
Today, alligators are found through-
out the Southeast, from the Carolinas
to Texas and north to Arkansas. As dur-
ing the Reptile Age, today alligators live
in wetlands, and it is this vital habitat
khat holds the key to their continued
¦ong-term survival. Alligators depend
on the wetlands —and in some ways the
wetlands depend on them. As predators
at the top of the food chain, they help
control numbers of rodents
and other animals that
might overtax the
marshland
vegetation.
American alligator
populations reached
all-time lows in the
1950s, primarily due
to market hunting
and loss of habitat.
However, the
alligator was
pronounced fully
recovered in 1987,
making it one of the
first endangered
species success
^tories.
The alligator has a large, slightly
rounded body, with thick limbs, a broad
head, and a very powerful tail which
it uses to propel itself through water.
The tail accounts for half the alligator's
length. While alligators move very
quickly in water, they are generally
slow-moving on land, although they
can be quick for short distances.
Alligators will eat just about
anything, but primarily consume fish,
turtles, and snails. Small animals that
come to the water's edge to drink make
easy prey for the voracious alligator.
Young alligators mostly feed on insects,
crustaceans, snails, and fish.
The alligator's greatest value to the
marsh and the other animals within it
are the "gator holes" that many adults
create and expand on over a period of
years. An alligator uses its mouth and
claws to uproot vegetation to clear out
a space;
then, shoving
with its body
and slashing with its powerful tail, it
wallows out a depression that stays full
ot water in the wet season and holds
water after the rains stop. During the
dry season, and particularly during
extended droughts, gator holes provide
vital water for fish, insects, crustaceans,
snakes, turtles, birds, and other animals
in addition to the alligator itself.
Sometimes, the alligator may expand
its gator hole by digging beneath an
overhanging bank to create a hidden
den. After tunneling as far as 20 feet, it
enlarges the end, making a chamber
with a ceiling high enough above water
level to permit breathing. This is not
the alligator's nest but merely a way
for the reptile to
survive the dry
season and
winters
m
I
>Tf*M
vs. yiyui?""* ni(
-------
The breeding season begins in the
spring. Although alligators have no
vocal cords, males bellow loudly to
attract mates and warn off other males
during this time by sucking air into their
lungs and blowing it out in intermittent,
deep-toned roars.
The female builds a nest of vegeta-
tion, sticks, leaves, and mud in a shel-
tered spot in or near the water. After
she lays her 20 to 50 white, goose-egg-
sized eggs, she covers them under more
vegetation, which, like mulch, heats as
it decays, helping to keep the eggs
warm. She remains near the nest
throughout the 65-day incubation
period, protecting the nest from intrud-
ers. When the young begin to hatch
they emit a high-pitched croaking
noise, and the female quickly digs
them out.
The young, which are tiny replicas of
adult alligators with a series of yellow
bands around their bodies, then find
their way to water. For several days they
continue to live on yolk masses within
their bellies.
Alligators reach breeding maturity at
about 8 to 13 years of age, at which time
they are about 6 to 7 feet long. From
then on, growth continues at a slower
rate. Old males may grow to be 14 feet
long and weigh up to 1,000 pounds
during a lifespan of 30 or more years.
Historically, alligators were depleted
from many parts of their range as a
result of market hunting and loss of
habitat, and 30 years ago many
people believed this unique
reptile would never recover.
In 1967, the alligator was
listed as an endangered
species (under a law that pre-
ceded the Endangered Species
Act of 1973), meaning it was
considered in danger of extinc-
tion throughout all or a significant
portion of its range.
But a combined effort by the
U.S. Fish and Wildlife Service
and state wildlife agencies in
the South saved these unique
animals. The Endangered Species Act
prohibited alligator hunting, allowing
the species to rebound in numbers in
many areas where it had been depleted.
As the alligator began to make a come-
back, states established alligator popu-
lation monitoring programs and used
this information to ensure alligator
numbers continued to increase. In 1987,
the Fish and Wildlife Service pro-
nounced the American alligator fully
recovered and consequently removed
the animal from the list of endangered
species.
Although the American alligator
is secure, some related animals—such
as several species of crocodiles and
caimans —are still in trouble. For this
reason, the Fish and Wildlife Service
still regulates the legal trade in alligator
skins, or products made from them,
in order to protect these endangered
After female alligators build a nest of vegetation,
sticks, leaves, and mud, they lay 20 to 50 eggs and
cover them under more debris to keep the eggs
warm. Females remain near their nests throughout
the incubation period, and when they hear the young
make noises as they begin to hatch, they quickly
dig them out.
animals with skin that is similar in
appearance, but illegal in the commer-
cial market.
The story of the American alligator
is one of both drastic decline and com-
plete recovery, it is a story of state and
federal cooperation, and it is truly one
of the prominent success stories of the
nation's endangered species program.
Special thanks to the Florida Game and
Fresh Water Fish Commission for assistance
with this biologue.
The alligator's greatest value to the marsh and the
other animals within it are the "gator holes" that
many adults create and expand over a period of
several years. Gator holes are extremely important
sources of water dunng dry seasons, not only for
the alligator, but for many other animals as well.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
California
Condor
(Gymnogyps califomianus)
Archaeological evidence indicates
that condors have been revered
by western Native Americans
for thousands of vears and played a
major role in their legends and rituals.
Condors were considered sacred and
capable of providing communication
with the supernatural world as well as
supernatural powers.
In more recent times, the California
condor has become the subject ot an
intense and sometimes controversial
effort to save the species from extinc-
tion. Faced with rapidlv declining num-
bers, scientists began collecting
wild-laid eggs and capturing free-flying
birds to breed them in captivity with
the goal of eventually restoring the
condor to its rightful place in the
California skies.
| California condors are the largest
birds in North America. They may
weigh up to 25 pounds and have
wingspans of 91/: feet. California con-
dors have bare heads and necks, dull
gray-black feathers, and blunt claws.
They have a triangle-shaped patch of
white, visible only when airborne, that
adorns the underside of their wings.
California condors can soar on warm
thermal updrafts for hours, reaching
speeds of more than 55 miles per hour
and altitudes ot 15,000 teet.
Normally, Calitornia condors do
not become sexuallv mature until
the age of 6 and may not start breed-
ing until age 7 or 8. They nest in
caves or clefts on cliffs that usually
have nearby trees for roosting and a
clear approach for easy take-offs and
landings. Typically, an adult pair
The largest North American bird, California
condors weigh up to 25 pounds and have
wingspans of 9'/2 feet. California condors
pave bare heads and necks, dull gray-black
feathers, blunt claws, and a triangle-shaped
patch of white on the underside of their wings
which is visible only when they are flying.
lays one egg every other year, with the
fledgling being dependent upon its par-
ents through the next breeding season.
Like all vultures, condors are car-
rion-eaters. They prefer large dead ani-
mals like deer, cattle, and sheep, but
will also eat rodents and more rarely,
fish. If a meal has been particularly big,
they may have to spend hours on the
•ground or a low branch before they can
take off again. Condors are fastidious
birds —after eating, they clean their
heads and necks by rubbing them on
grass, rocks, or tree branches. Condors
also bathe frequently and spend hours
preening and drying their feathers.
Condors were probably never very
numerous in North America. The
species once ranged along the entire
Pacific Coast from British Columbia to
Baja California. Fossils have been found
as far east as Texas, Florida, and New
York. More recently, however, they were
confined to a horseshoe-shaped area
north of Los Angeles.
For years, no one knew precisely
how many California condors existed,
although they have been considered
to be a declining species since the
1890s. One estimate put their number
at 100 in the
early
Sv%-, 1940s.
/'
Another indicated there were 50 to 60
in the early 1960s. By the late 1970s, the
estimate had dropped to 25 to 30 birds.
Nor, despite years of study, can scien-
tists pinpoint the reason for the bird's
decline. Some factors include illegal
collection of condors and their eggs,
poisoning from substances put out by
ranchers to eradicate livestock preda-
tors, poisoning from ingesting lead frag-
ments from bullets embedded in animal
carcasses the condors feed on, and colli-
sions with structures such as power
lines. In addition, the roads, cities,
housing tracts, and weekend mountain
retreats of modern civilization have
replaced much of the open country con-
dors need to find food. Their slow rate
of reproduction and years spent reach-
ing breeding maturity undoubtedly
make the condor population as a whole
more vulnerable to these threats.
Recognizing the California condor's
perilous state, the U.S. Fish and Wildlife
Service listed the bird as an endangered
species in 1967 (under a law that pre-
ceded the Endangered Species Act ot
1973), meaning it was considered in
danger of extinction throughout all or a
significant portion of its range. The Fish
and Wildlife Service, the California
Department of Fish and Game, and the
National Audubon Society, among
other government and private groups,
began a joint effort in 1979 to study and
preserve the bird.
As part of this effort, biologists cap-
tured birds, weighed and measured
them, and fitted some with tags and
radio transmitters so they could
be monitored and identified
after being released.
Biologists learned about
the condors' feeding, mat-
ing, and chick-rearing
habits, as well as their
habitat needs. They
also confirmed that
California condor pairs that lost
-------
Zookeepers use hand puppets that look like adult
condors to feed captively bred condor chicks.
an egg would lay a second or even a
third one.
To increase the condors' egg produc-
tion, the biologists began removing eggs
laid in the wild in 1983. The eggs were
taken to either the San Diego Wild
Animal Park or the Los Angeles Zoo for
hatching. The first California condor
hatched in captivity in 1983. Nicknamed
"Sisquoc," this condor and subsequent
chicks hatched from wild-laid eggs were
raised in boxes that simulated the caves
their parents used. Zookeepers kept
human contact to a minimum by teeding
the chicks with hand puppets made to
look like adult condors.
Meanwhile, researchers began cap-
turing young condors in order to start
breeding them as quickly as possible
before the wild population declined fur-
ther. Bringing immature, non-breeding
birds into captivity would speed up the
time it would take to create a viable,
breeding population. The Andean con-
dor, a closely related species that inhab-
its areas in South America, had bred
successfully in captivity and some cap-
tive-born birds have been released in
the wild, giving biologists good reason
to be optimistic about similar success
for the California condor.
Until 1985, biologists planned to
leave at least some condors in the wild.
It was believed the free-flying condors
would provide role models to captive -
hatched birds that could hopefully be
restored to the wild in the 1990s.
Then, disaster struck. Members
within four of the five remaining breed-
ing pairs disappeared over the winter of
1984-85, and the wild population was
reduced from 15 to 9 birds. With the
number of wild condors continuing to
plummet in 1986, the biologists decided
to capture all remaining wild California
condors and bring them into the cap-
tive breeding program. The last remain-
ing wild California condor was trapped
in 1987. Two of these birds successfully
mated and produced the first captive-
bred condor chick the following year.
In the fall of 1988, the U.S. Fish
and Wildlife Service began a 3-year
reintroduction experiment using
Andean condors as stand-ins for their
endangered cousins.
Between December 1988 and January
1989,13 female Andean condors were
released, equipped with radio transmit-
ters for monitoring by biologists. Only
females were released to prevent repro-
duction in the wild —accidentally intro-
ducing a new species into a new habitat.
These birds helped scientists perfect
release techniques and to identify envi-
ronmental threats before California con-
dors were reintroduced. One of the
Andean condors died, from a collision
with a power line, and the rest were later
recaptured and returned to their native
habitat in South America.
In 1991, two California condors were
reintroduced into the Los Padres
National Forest's Sespe Condor
Sanctuary in California, along with two
Andean condors. Biological studies
indicated that California condors
develop better in social groups. And
because there were only two California
condors ready for release, biologists
made up the difference with the
Andean relatives. Subsequently, when
six more California condors became
ready for release later that year, the two
Andean condors were recaptured and
eventually returned to South America.
To date, 13 California condors have
been reintroduced to the wild, but mor-
tality has been high. Four have died due
to collisions with power lines and one
died from poisoning by ethylene glycol,
a substance commonly found in
antitreeze. Another five were taken
back to breeding facilities because biol-
ogists considered some of their behav-
ior, such as perching on power lines, to
be a risk. Biologists tried to transfer
some of the condors to more remote
areas, but the birds flew back to their
original release area.
By nature, condors are exceptionally
curious and show no fear of humans.
And while birds born and raised in the
wild could learn about the hazards of
their environment from their parents,
captive-released birds have no such role
models.
Today, there are 87 condors — 3 birds
in the wild and 84 in breeding facilities.
The U.S. Fish and Wildlife Service plans
to continue releasing California con-
dors. The search for appropriate habitat
in remote areas for such releases contin-
ues, and additional breeding facilities
have been established as well. In addi-
tion to the San Diego Wild Animal Park
and the Los Angeles Zoo, California
condors are also kept at the World
Center for Birds of Prey in Boise, Idaho.
While the outlook for the California
condor is more promising than 5 years
ago, there is more work ahead. Captive
breeding is essential to the survival of
critically endangered species like the
California condor; in fact, it may be the
last hope of saving the condor.
BiOLOGUE Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
^5^
1995
-------
ENDANGERED
SPECIES
| This Species is Protected Under the
Endangered Species Act of 1973
WHOOPING
Crane
(Grus americana)
Once very close to extinction,
the whooping crane is making a
comeback, thanks to conserva-
tion efforts over the last few decades. In
1937, only two small breeding popula-
tions of the whooping crane remained;
a nonmigratory population in south-
western Louisiana, and a migratory pop-
ulation which nested in Canada and
wintered on the Texas Coast. Today,
there are nearly 300 whooping cranes in
the wild and in captivity.
Before settlers moved west, whoop-
ing cranes nested from Illinois to south-
ern Canada, sharing their nesting
grounds with the grizzly bear, bison, and
gray wolf. Whooping cranes migrated to
areas extending from the Carolinas to
Mexico to spend the winter.
. But with the settlement of the West,
¦nuch of the crane's prairie nesting
'grounds were converted to pasture and
agricultural lands. Whooping cranes
therefore disappeared from the Great
Plains, finding safe refuge far north in
Canada at the Wood Buffalo National
Park. This was not known until
1954, when a pilot spotted a
pair of whooping cranes at
the park. And in
1941, records show only 16 birds had
migrated to wintering grounds on the
Aransas National Wildlife Refuge on
the Gulf Coast of Texas.
The tallest bird in North America,
the whooping crane stands 5 feet tall
with a long, sinuous neck and long legs.
Its snowy white body feathers are
accented by jet-black wingtips and a red
and black head with a long, pointed
beak. The wings measure about 7 feet
across. Whooping cranes fly with slow
wingbeats and the necks and legs fully
extended.
The whooping crane's call, from
which it derives its name, has been
described as a shrill, bugle-like
trumpeting.
Whooping cranes nest in marshy
areas among bulrushes, cattails, and
sedges that provide protection from
predators as well as food. They eat
insects, minnows, crabs, clams, crayfish,
frogs, rodents, small birds, and berries.
Whooping cranes do not reach breed-
ing maturity until they are 4 years old,
and they establish life-long mates. Their
courtship dance, which begins in late
winter, consists of loud vocalizations,
wing flapping, head bowing, strutting,
and tremendous leaps into the air
by one or both birds. This
behavior may also
occur when birds
are defending
their
territory.
fllPlMlS
'
' •• • •
J/'-.'
Whooping cranes usually nest once
each year, unless their first clutch is
destroyed they sometimes will lay
another. Also, occasionally a pair will
skip a nesting season if conditions are
unsuitable or for no apparent reason.
Normally two eggs are laid in late April
to mid-May, with hatching 1 month
later. The parents share incubation and
rearing duties, but females take the pri-
mary role in feeding and caring for the
young. Usually only one of the two
chicks is raised.
Whooping crane chicks have red-
dish-cinnamon colored feathers. Slowly
over their first winter, juvenile plumage
is replaced, and by the following spring
it is mostly white, with full adult
plumage being reached by late in the
second summer.
Fall migration begins in September,
and whooping cranes normally migrate
in small flocks of less than 10. They
arrive at Aransas National Wildlife
Refuge in Texas between late-October
and mid-November, where they will
spend about 6 months. In April, the
birds make the 2,600-mile trip back to
Wood Buffalo National Park in Canada.
It has been estimated that between
500 and 1,400 whooping cranes inhab-
ited North America in 1870. While
never very numerous, several factors
contributed to their rapid decline.
Many cranes have died from collisions
from power lines. Substantial numbers
were lost to illegal shooting for meat
and sport. Some have died of avian
Whooping cranes' courtship dance consists of loud
vocalizations, wing flapping, head bowing, strutting,
and tremendous leaps into the air by one or both birds.
-------
tuberculosis, avian cholera, and lead
poisoning Due to their long migration
route, whooping cranes also are vulner-
able to natural disasters such as hail
storms or drought. The whooping
crane's delayed breeding maturity and
small clutch size make the population as
a whole less capable ot rebounding from
these threats.
Various efforts have helped the
whooping crane over the years. Passage
ot the Migratory Bird Treaty Act of 1918
gave protection to whooping cranes and
other birds, thus thwarting illegal shoot-
ing. Canada's Wood Buffalo National
Park, while established in 1922 to pro-
tect the buffalo, was a sate haven for
the last nesting population of the
whooping crane at that time. In 1937,
the Aransas National Wildlife Refuge
was established to protect the wintering
area of the remaining whooping cranes.
In 1967, the whooping crane was desig-
nated as an endangered species (under
a law that preceded the Endangered
Species Act of 1973), meaning it was
considered in danger of extinction
throughout all or a significant portion of
its range.
In 1967, the U.S. Fish and Wildlife
Service began a whooping crane recov-
ery program, relying on an extensive
captive breeding effort which has been
met with many challenges due to the
whooping crane's sensitivity to human
contact. To date, three facilities are now
captivelv rearing whooping cranes for
reintroduction into the wild, and flocks
have been reintroduced into the wild at
two sites. These efforts began because
of the risk of losing the entire wild flock
of whooping cranes due to a natural dis-
aster such as disease or hurricane, and
to help increase whooping crane
numbers.
Since whooping cranes normally
lay two eggs but only raise one chick,
in one experiment, Canadian and
American biologists removed the
"extra" eggs from nests in the wild and
brought them to the Patuxent Wildlife
Research Center in Laurel, Maryland,
where they were artificially incubated
and later used to establish a captive
flock. From 1967 through the present,
many "extra" eggs have been transferred
from the wild to the Patuxent center
and other whooping crane captive
breeding facilities.
Efforts to captively breed and reintroduce whooping cranes have been met with notable success. Today,
there are almost 300 whooping cranes in the wild and in captivity, up from only about 20 birds in 1941.
Artificial insemination also proved
successful in increasing the number of
eggs laid by captive cranes. Once a
crane laid a clutch of eggs, the eggs
were removed to be incubated either
artificially or by a sandhill crane, a
closely related species. The whooping
crane would then lay a second clutch
of eggs.
An effort to create a wild flock with
an alternate migratory route was initi-
ated in 1975, using sandhill cranes as
"foster parents." Whooping crane eggs
were placed in the nests of sandhill
cranes on their nesting grounds at the
Grays Lake National Wildlife Refuge in
Idaho. The sandhills reared the chicks
as their own, teaching them feeding
habitats and ultimately a new 850-mile
migratory path to the Bosque Del
Apache National Wildlife Refuge in
New Mexico. Unfortunately, these
whooping cranes became so accus-
tomed to their sandhill parents that
they would not mate with other whoop-
ing cranes. Today, there are 8 whooping
cranes left in this flock.
In 1989, a second captive flock was
established at the International Crane
Foundation in Baraboo, Wisconsin, a
conservation organization dedicated to
the preservation of cranes worldwide. In
addition to birds from the Patuxent cen-
ter, some of these whooping cranes have
been used for reintroduction efforts.
In February 1993, a nonmigratory
flock of 14 captive-reared whooping
cranes was reintroduced on the
Kissimmee Prairie in Florida. Since
then, 19 more birds have been released
at this site. Twenty-five more birds will
be released in the winter ot 1994-95,
and annual releases of around 20 birds
are scheduled for the next 8 years.
Bobcat predation, which is common
among sandhill crane populations in the
same area, has been the greatest cause
of mortality for this flock.
From 1992 to the present, 18 whoop-
ing cranes have been transferred to a
facility in Calgary, Canada, to establish
a third captive flock. Presently, biolo-
gists are evaluating sites in Canada for
the reintroduction of a migratory flock
of whooping cranes later this decade.
Thanks to these efforts, the whoop-
ing crane population has survived and
continues to increase. The U.S. Fish
and Wildlife Service's whooping crane
recovery program has been so successful
that other countries have adopted simi-
lar methods to protect other species of
crane that are also threatened.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
f—~—\
K18H A WmUFE
SERVICE
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act oi 1973
GRAY WOLF
Canis lupus
Most Native Americans and
Eskimos revered the gray wolf,
trying to emulate its cunning
and hunting abilities. However, it was
the belief by western settlers that the
wolf caused widespread livestock losses
that led to its near extinction in the
lower 48 states in the early part of the
20th Century. Under large scale preda-
tor control programs, wolves were
hunted and killed with more passion
and zeal than any other animal in
United States history.
Second only to humans in its adapta-
tion to climate extremes, the gray wolf
was equally at home in the deserts of
Israel, the deciduous forests of Virginia,
and the frozen Arctic of Siberia. Within
the continental U.S., gray wolves for-
unerly ranged from coast to coast and
Brom Canada to Mexico.
Wolf groups, or packs, usually consist
of a set of parents (alpha pair), their off-
spring, and other non-breeding adults.
Wolves begin mating when they are 2 to
3 years old, sometimes establishing life-
long mates. They dig a den or use an
existing shelter or structure, sometimes
with chambers and connecting tunnels,
in which to rear their pups for the first
6 weeks of their lives.
An average of six pups are born in
early spring. They depend completely
on their mother's milk tor the first
month, then they are gradually weaned.
By 7 to 8 months of age, when they
are almost fully grown, the young
wolves begin hunting with the adults.
Often after 1 or 2 years of age, a young
wolf will leave and try to form its
own pack.
It was the belief by western settlers that the gray
wolf caused widespread livestock losses that led to
its near extinction in the lower 48 states in the early
^art of the 20th Century. Under large scale predator
Pontrol programs, wolves were hunted and killed
with more passion and zeal than any other animal in
U.S. history.
Wolf packs usually hunt within a spe-
cific territory. Territories may be as large
as 50 square miles or even extend to
1,000 square miles depending on food
availability. The wolf's great ability to
hunt lies in its determination and
capacity to seek out vulnerable prey.
Wolves often cover large areas to do so,
travelling as far as 30 miles in a day.
Although they usually trot along at 5
mph, wolves can attain speeds as high
as 45 mph.
Indirectly, wolves support a wide
variety of other animals. Ravens, foxes,
wolverines, vultures, and even bears
feed on the remains of animals killed by
wolves. Wolf-kills have been found to
be an important source of food for
eagles.
Wolves are noted for their distinctive
howl. To wolves, howling is simply a
form of communication. Biologists do
not know all of the reasons why wolves
howl, but they may do so before and
after a hunt, to sound an alarm, and to
locate other members of the pack when
T.i'VY1
Vr! " <
Ws. v-
tfMMfk
-------
After years of comprehensive study and planning,
an effort is now underway to reintroduce gray
wolves from Canada into Yellowstone National Park
and U.S. Forest Service lands in central Idaho as
part of recovery actions for the animal.
separated. Wolves howl more frequently
in the evening and early morning,
especially during winter breeding and
pup-rearing.
Early settlers moving westward
severely depleted most populations of
bison, deer, elk, and moose — animals
that were important prey for wolves.
With little alternative, the wolf then
turned to the sheep and cattle that had
replaced its natural prey. To protect
their livestock, ranchers and govern-
ment agencies began a campaign to
eliminate the wolf. Bounty programs,
initiated in the 19th Century, continued
as late as 1965, offering 520 to $50 per
wolf. Wolves were trapped, shot from
planes and snowmobiles, and hunted
with dogs. Animal carcasses salted with
strychnine were left out for wolves to
eat. Unfortunately, this practice indis-
criminately killed eagles, ravens, foxes,
bears, and other animals which also
fed on the poisoned carrion.
Today, about 2,000 wolves exist in
Minnesota, fewer than 20 on Lake
Superior's Isle Royale, about 60 in
Michigan's Upper Peninsula, 40 to 50 in
Wisconsin, and about 65 in Montana.
Numbers are low but unknown in Idaho
and Washington, and an occasional
individual is seen in Wyoming, North
Dakota, and South Dakota. Populations
fluctuate due to food availability and
strife within packs.
The gray wolf is listed under the
Endangered Species Act as a threat-
ened species in Minnesota, and as an
endangered species elsewhere in the
lower 48 states. "Endangered" means a
species is considered in danger ot
extinction throughout all or a signifi-
cant portion of its range, and "threat-
ened" means a species is considered in
danger of becoming endangered. In
Alaska, wolf populations number 5,900
to 7,200 and are not considered endan-
gered or threatened.
In Minnesota, where the largest wolf
population in the lower 48 states
resides, a special state program provides
compensation for livestock confirmed
to be killed by wolves, and a federal pro-
gram provides for trapping of individual
wolves guilty ot depredation.
Wolf recovery and management are
very polarized, controversial, and emo-
tional issues often involving people's
attitudes more than wolves themselves.
Attitudes are often based on inaccurate
information, making wolf management
perhaps more difficult than any other
wildlife management program.
For example, some people continue
to carry the unfounded fear that wolves
attack people or threaten outdoor activ-
ities. In fact, wolves generally avoid
humans. There are no verified reports
of healthy wolves ever seriously injuring
a human in North America.
Yellowstone National Park has been
at the center of debates over the wolf.
Wolves were deliberately extirpated
from this park in 1930. Today, the wolf
is the only species missing from the
Yellowstone ecosystem—one of the
largest relatively intact wilderness areas
in the lower 48 states. Some people feel
that reintroduction of the wolf would
complete the ecological picture. Others
are concerned about potential effects
on livestock and big game animals. It is
believed the large herds of elk and deer
within Yellowstone would provide more
than enough food for the wolves that
typically prefer wild game over live-
stock. However, eventually some wolves
would try to live outside the park and
prey on livestock.
After years of comprehensive study
and planning, in 1994 the U.S. Fish and
Wildlife Service began an effort to rein-
troduce gray wolves into Yellowstone
and U.S. Forest Service lands in central
Idaho. The Service had previously iden-
tified these areas as necessary for wolf
recovery, as well northwest Montana,
where wolf packs have already become
established as wolves from Canada have
expanded their range.
Part of the reintroduction effort
involves capturing groups of wolves
from Alberta and British Columbia,
Canada, and bringing them to the U.S.
for the reintroduction. When these
wolves are reintroduced, they will be
designated as "non-essential experimen-
tal" under the Endangered Species Act,
including provisions to allow control of
wolves under certain circumstances; for
example, if they are determined to be
preying on livestock or if wild popula-
tions of deer, elk, and other large game
are severely affected by wolf predation.
A private organization has established a
fund to compensate landowners who
suffer losses to wolves.
Under the Fish and Wildlife Service's
plan for wolf recovery, reintroduction
would begin in 1994 and last for 3 to 5
years. Wolf populations would be
expected to recover by 2002, at which
time the Fish and Wildlife Service
would propose to remove the wolf from
the list of endangered and threatened
species.
Wolf recovery efforts represent an
opportunity to redress past mistakes and
enhance our understanding not only of
the wolf itself, but also the complex
interactions among species in their
natural environment.
biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
I'
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
RED WOLF
Canis rufus
Originally, the red wolf roamed as
far north as Pennsylvania and
as far west as central Texas.
Like its relative the gray wolf, the red
wolf was extirpated trom its former
range by large scale predator control
programs. By the late 1930s, only two
populations are believed to have
remained; one in the Ozark/Quachita
Mountain region of Arkansas,
Oklahoma, and Missouri, and the other
in southern Louisiana and southeastern
Texas. Nearly extinct only a few
decades ago, the red wolt has begun to
recover with the help of captive breed-
ing and reintroduction programs.
The red wolf derived its name from
the reddish color of the head, ears, and
legs. However, its coloring can range
^rom very light tan to black. Weighing 45
n 80 pounds, the red wolf is smaller than
'he gray wolf and larger than the coyote.
Also, the head is broader than the coy-
ote's but more narrow than the gray
wolf's. The red wolf's most distinguishing
features are the long ears and legs.
The exact identity of the red
wolf has been debated
for decades, with some
authorities consider-
ing it a species, some
considering it a sub-
species of the gray wolf,
and some considering it
a hybrid, or cross-breed,
of the coyote and the
gray wolf.
In the wild, red wolves
normally establish life-long
mates. They reach breeding
Extensive predator control programs in
the early part of the 20th Century were a
leading factor in the near extinction of the
Ted wolf. At the same time,
Kforestation caused an
Eastward surge of the
coyote, resulting in
red wolf and coyote
interbreeding.
maturity in their second or third year,
and breed in February or March of each
year. The female wolf, sometimes
assisted by the male, finds or digs a suit-
able den in areas such as hollow logs,
ditch banks, or under rock outcrops.
Two to six pups are born in March or
April. The pups are born with their eyes
closed and are completely dependent
on their mother for about 2 months.
They usually remain with the parents
until reaching breeding maturity, form-
ing small family groups, or packs. Red
wolf packs generally use 10 to 100
square miles of habitat.
Red wolf packs are smaller than
those of the gray wolf, and consist of an
adult pair and young of the current and
previous years. Similar to gray wolves,
red wolves are very social and territor-
ial, with aggression among pack mem-
bers sometimes resulting in death.
White-tailed deer and raccoon are
the most important part of the red
wolf's diet, but smaller animals, such as
rabbit and nutria, are eaten when avail-
able. Red wolves will prey on small live-
stock in certain situations, but proper
livestock husbandly can greatly
reduce or eliminate these losses.
With large livestock such as cattle, it is
normally only the very young calves
that are vulnerable.
Yet it was the belief that the red wolf
caused widespread cattle losses that led
to extensive predator control programs
in the early part of the 20th Century.
Fear and a misunderstanding of the ani-
mal led to indiscriminate killing for
bounties. The red wolf was also affected
by land clearing and drainage projects,
logging, mineral exploration, and road
development that encroached on its
forest habitat.
As predator control programs were
carried out with a vengeance, the red
wolf was totally removed from extensive
areas of its former range, while in other
areas its social structure was destroyed
by removal of pack members. At the
same time, deforestation in eastern
Texas and Oklahoma caused an east-
ward surge of the coyote. These factors
resulted in red wolf and coyote inter-
breeding when red wolves were unable
to find mates of their own species.
In 1967, the red wolf was listed as an
endangered species (under a law that
preceded
the
!
i
-------
Endangered Species Act of 1973),
meaning it is considered in danger ot
extinction throughout all or a signifi-
cant portion ot its range.
The U.S. Fish and Wildlife Service
established a captive breeding program
for the red wolf in 1973. Biologists
began to remove remaining red wolves
trom the wild in an effort to save the
species trom extinction. These animals
were taken to the Point Defiance Zoo
and Aquarium in Tacoma, Washington.
Over a period of 6 years, more than 400
wolf-like canids were captured in
Louisiana and Texas, but ot this num-
ber, only 43 were considered red wolves
and were placed in captivitv. Further,
breeding experiments revealed that only
17 ot the 43 were true red wolves, and
only 14 of these successfully bred in cap-
tivity. By 1980, the red wolf was consid-
ered extinct in the wild.
In 1977, captive red wolf pairs pro-
duced their first litters. Biologists took
great care to maintain the wild instincts
of these animals and to avoid creating a
dependence on man.
In 1987, four pairs of red wolves were
reintroduced to the wild on the
120,000-acre Alligator River National
Wildlife Retuge in northeastern North
Carolina. Each wolt was equipped with
a radio transmitter so that biologists
could monitor their movements.
Additional releases were made, and the
first wild reproduction occurred in 1988.
The reintroduction area has been
expanded to include
additional federal and
private lands, and now
encompasses approximating 500,000
acres. Today, there are more than 50 red
wolves at this location.
Early releases of red wolves at
Alligator River resulted in high mortal-
ity, and some animals exhibited a toler-
ance of people considered to put them
at risk because of potential conflict with
human activities. Therefore, several
island projects were established to serve
as pre-reintroduction sites where the
wolves could have their first experience
in the wild with limited human contact.
Wolves placed on these islands have
reproduced, and the packs roam freely
on the islands. The adults and/or young
are subsequently captured and used in
reintroduction projects such as the one
at the Alligator River refuge. Bulls
Island in the Cape Romain National
Wildlife Refuge in South Carolina,
Horn Island in the Gulf Islands
National Seashore in Mississippi, and
St. Vincent National Wildlife Refuge in
Florida are the three island sites now
used as pre-reintroduction sites.
Disease and parasites have also
caused mortality among the reintro-
duced red wolf populations. Hookworm,
heartworm, distemper, parvo virus, and
others have taken their toll. Now,
released and captive animals are vacci-
nated against such maladies.
A second, experimental reintroduc-
tion site was selected in the Great
Smoky Mountains National Park to
explore the feasibility of the red wolf's
re-establishment into the
Southern Appalachian
Mountains. The objectives of
the experiment were to evalu-
ate the red wolf interaction with
coyotes, livestock, and people.
A 1-year
experimental
release of a
The red wolf is smaller than the gray wolt and larger
than the coyote. Also, the head is broader than the
coyote's but more narrow than the gray wolf's.
The red wolf's most distinguishing
features are the long ears and legs.
I
family group in 1991 was successful and
concluded by recapturing the animals.
A full-scale reintroduction then began
with the release of two family groups in
1992. Movement of members of one
group outside the park and cattle depre-
dation by the second group required
temporary removal of these animals in
1994- The cattle depredations were
largely a result of inadequate cattle hus-
bandry practices and damage to fencing
from flooding. The cattle operation is
being evaluated tor needed changes and
another family group of wolves has beer*
released in an adjacent area.
Biologists continue to monitor the
two reintroduced populations of red
wolves. The Fish and Wildlife Service
also is working with the U.S. Forest
Service to evaluate National Forest
lands in the Southern Appalachians
and elsewhere that may be suitable as
future reintroduction sites.
There are now 270 to 300 red
wolves, including 220 in captivity and
the rest in the wild—quite a comeback
from the 14 animals making up the orig-
inal captive breeding population. There
are currently 33 facilities nationwide
where red wolves are captively bred.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
Red wolf pups are totally dependent on their mothers for about 2 months. They usually remain with the
parents until reaching breeding maturity, forming small family groups, orpacks.
-------
ENDANGERED
SPECIES
|This Species is Protected Under the
Endangered Species Act of1973
RED-COCKADED
WOODPECKER
Picoides borealis
In the mid-1800s, naturalist John
Audubon reported that the red-
cockaded woodpecker was tound
abundantly in the pine forests of the
southeastern United States. Historically,
this woodpecker's range extended from.
Florida to New Jersey, as far west as
Texas and Oklahoma, and inland to
Missouri, Kentucky, and Tennessee.
Today it is estimated that there
are about 4,500 family units of red-
cockaded woodpeckers, or 10,000 to
14,000 birds, living in clusters (groups
of cavity trees) from Florida to Virginia
and west to southeast Oklahoma and
eastern Texas, representing about 1 per-
cent of the woodpecker's original range.
About the size of the common cardi-
nal, the red-cockaded woodpecker is
fcipproximately 7 inches long (18 to 20
wn), with a wingspan of about 15 inches
(35 to 38 cm). Its back is barred with
black and white horizontal stripes. The
red-cockaded woodpecker's most distin-
guishing feature is a black cap and nape
(the back of the neck) that encircle
large white cheek patches. Rarely visi-
The red-cockaded woodpecker
makes its home in the mature pine
forests of the southeastern United
States. While other woodpeckers
bore out cavities in dead trees where
the wood is rotten and soft, the
red-cockaded woodpecker is the
only one which excavates cavities
exclusively in living pine trees.
ble, except perhaps during the breeding
season and periods of territorial defense,
the male has a small red streak on each
side of its black cap called a cockade,
hence its name.
The red-cockaded woodpecker
makes its home in mature pine forests;
more specifically, those with long-leat
pines averaging 80 to 120 years old and
loblolly pines averaging 70 to 100 years
old. While other woodpeckers bore out
cavities in dead trees where the wood is
rotten and soft, the red-cockaded wood-
pecker is the only one which excavates
cavities exclusively in living pine trees.
The older pines favored by the red-
cockaded woodpecker often suffer from
a fungus called red heart disease which
attacks the center of the trunk, causing
the inner wood to become soft. Cavities
generally take 1 to 3 years to excavate.
The red-cockaded woodpecker feeds
mainly on beetles, ants, roaches, cater-
pillars, wood-boring insects, and spi-
ders, and occasionally fruits and berries.
Red-cockaded woodpeckers are a
territorial, nonmigratory, cooperative
1 ' 'l II M..I 1
m
1
[,L
breeding
species, fre-
quently having
the same mate
for several years.
The nesting season
lasts from April
through June. The
breeding female lays three
to four eggs in the breeding
male's roost cavity. Group
members incubate the small
white eggs for 10 to 12 days.
Once hatched, the nestlings remain in
the nest cavity for about 26 days.
Upon fledging, the young often
remain with the parents, forming groups
of up to nine members, but more typi-
cally four to five members. There is only
one pair of breeding birds within each
group, and they normally raise only a
single brood each year. The other group
members, usually males from the previ-
ous breeding season, help incubate the
eggs and raise the young. Juvenile
females generally leave the group before
the next breeding season, in search of
single male groups.
Each group needs an average of 200
acres of old pine fprest to support its for-
aging and nesting habitat needs. Some
groups have been successful on fewer
acres while others require as many as
300 acres to support themselves.
Rat snakes are a primary predator of
red-cockaded woodpeckers. Agile tree
climbers, rat snakes eat woodpecker
eggs and nestlings. But the red-
cockaded woodpecker has an effective
means of defense. It chips small holes
(called resin wells) in the bark of the
cavity tree, above and below the cavity.
From these wells, sap (resin) oozes
down the trunk of the tree. When the
snake comes in contact with the sap,
the sap adheres to the scales on its
underside. Even tiny amounts of resin
inhibit the movement of the scales, pre-
venting the snake from climbing higher.
-------
V\\\. ?
*
Red-cockaded woodpeckers are a territorial, nonmigratory, cooperative breeding species.
They live in groups of up to nine members, but more typically four to five. There is only one
of breeding birds within each group; the others help incubate the eggs and raise the young.
Red-cockaded woodpeckers spend a
significant amount of time and energy
each day maintaining the flow of the
resin wells. If the tree should die, or the
damage from maintaining the wells
becomes so great that the sap stops
flowing, the woodpeckers will eventu-
ally abandon the cavity tree.
The red-cockaded woodpecker plays
a vital role in the intricate web of life of
the southern pine forests. A number of
other birds and small mammals use the
nest cavities excavated by red-cockaded
woodpeckers, such as chickadees, blue-
birds, titmice, and several other wood-
pecker species, including the downy,
hairy, and red-bellied woodpecker.
Larger woodpeckers may take over a
red-cockaded woodpecker cavity, some-
times enlarging the hole enough to
allow screech owls, wood ducks, and
even raccoons to later move in. Flying
squirrels, several species of reptiles and
amphibians, and insects, primarily bees
and wasps, also will use red-cockaded
cavities.
From the late 1800s to the mid 1900s,
the red-cockaded woodpecker rapidly
declined as its mature pine forest habi-
tat was altered for a variety of uses, pri-
marily timber harvest and agriculture.
The species was listed as endangered in
1970 (under a law that preceded the
Endangered Species Act of 1973),
which means the species is considered
in danger of extinction throughout all
or a significant portion of its range.
The U.S. Fish and Wildlife Service
has developed a recovery strategy for
the red-cockaded woodpecker that
includes the participation of other fed-
eral and state agencies and private
landowners.
Most of the forested pine areas old
and large enough to provide adequate
habitat for the red-cockaded wood-
pecker are on federal lands. The U.S.
Forest Service and the Department of
Defense have developed special man-
agement guidelines for woodpecker
habitat areas on National Forests and
military installations.
While red-cockaded woodpecker
recovery is dependent upon federal land
protection, the Fish and Wildlife
Service also is developing cooperative
conservation agreements with states
and private landowners, too.
In 1993, the Georgia-Pacific
Company established a landmark con-
servation agreement with the Fish and
Wildlife Service to help protect the red-
cockaded woodpecker on thousands of
acres of company land. Since that time,
two more companies, Hancock Timber
Resource Group and Champion
International Corporation, have estab-
lished similar conservation agreements
with the Fish and Wildlife Service to
protect the red-cockaded woodpecker
on their lands. Three other companies
are currently working with the Fish and
Wildlife Service to develop conserva-
tion agreements.
The red-cockaded woodpecker once
shared its pine forest habitat with the
ivory-billed woodpecker, the largest
North American woodpecker, now gen-
erally considered to be extinct. But
there is still hope for the red-cockaded
woodpecker, with continuing coopera-
tive efforts. In fact, some populations
are now stable or increasing.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
I
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
BLACK-FOOTED FERRET
(Mustela nigripes)
The black-footed ferret was once
considered the most endangered
mammal in the United States,
but recently much progress has been
made toward its recovery'.
Black-footed ferrets are members of
the weasel tamily (Mustelidae), a dis-
tinction they share with weasels,
martens, fishers, otters, minks, wolver-
ines, and skunks. Larger than a weasel,
black-footed ferrets are long, slender-
bodied animals similar in size to a mink.
The species is characterized by a brown-
ish-black mask across the face, a brown-
ish head, black feet and legs, and a
black tip on the tail. The fur is short
and could be described as pale yellow
buff, becoming lighter on the underside
of the body. The middle of the back has
irown-tipped guard hairs that create
Jie appearance of a dark saddle.
The black-footed ferret may look a
little like the ferrets found in pet stores,
but it is actually a different species.
Both belong to the weasel family, but
the ferrets sold as pets evolved in
Europe, while the endangered black-
footed ferret evolved in North America.
Possibly the black-footed ferret was
never abundant, but its underground,
nocturnal habits make it difficult for
biologists to know this for certain. First
described by naturalists John Audubon
and John Bachman in 1851, it was not
sighted again for 25 years.
Ferrets were once found throughout
the Great Plains, from Texas to south-
ern Saskatchewan, Canada. Their range
extended from the Rocky Mountains
eastward through the Dakotas and
south through Nebraska, Kansas,
Oklahoma, and Texas. Where prairie
dogs were found, so were black-footed
¦be black-footed ferret was probably never abun-
*it, but its underground, nocturnal habits make it
difficult for biologists to know for certain. The
ferret's primary food source is the prairie dog, and
ferrets live in the prairie dog's burrow.
ferrets. Ferrets eat prairie dogs and live
in the prairie dog's burrow.
Typical behavior of wild ferrets
revolves around the prairie dog towns.
Wild ferrets hunt prairie dogs at night,
but occasionally they are active above
ground during the day. This is especially
true of the female ferrets hunting to
feed their young. In search of prey, they
move along in loping bounds from one
burrow to the next. When it makes a
kill, a ferret may drag a prairie dog some
distance to a home burrow where it may
devour it below ground, or drag fresh
prey to burrows in which they have
their young.
Black-footed ferrets produce four or
five young once each year. Born in May
or June, the young do not come above
ground until they are 6 weeks old. The
mother and young remain together
until about mid-August. At that time,
the female begins to separate siblings
into different burrows. From August
through early September the young
become increasingly solitary. By early
October they are able
to take care of
themselves.
As the prairies were settled, prairie
dogs competed with livestock for the
available forage. This resulted in inten-.
sive efforts to eliminate these "pest
rodents." Without the prairie dog, the
black-footed ferret had no source of
food, and its populations seriously-
declined as a result.
The black-footed ferret was listed as
an endangered species in 1967 (under a
law that preceded the Endangered
Species Act of 1973), meaning it was
considered in danger of becoming
extinct in all or a significant portion of
its range. By 1972, the black-footed fer-
ret was in fact believed to be extinct.
From 1972 through 1981, many ferret
sightings were reported, but no black-
tooted ferrets were found. Then in 1981,
a dog killed an unusual animal on a
ranch in Wyoming. The rancher took it
to a taxidermist who recognized it as a
black-footed ferret. This led to the dis-
covery of a small ferret population near
Meeteetse, Wyoming, in 1981. The pop-
ulation increased from 1981 through
1984. At its peak in
1984, nearly 130 fer-
rets were counted.
1
$ wwm
-------
Black-footed ferrets hunt prairie dogs at night, but occasionally they are active above ground during the day. In search of prey, they move along in loping bounds
from one burrow to the next.
In October 1985, the Wyoming
Game and Fish Department, in cooper-
ation with the U.S. Fisrt and Wildlife
Service, captured six black-footed
ferrets to start a captive breeding
population at the Department's Sybille
Wildlife Research and Conservation
Education Center near Wheatland,
Wyoming. Shortly after their capture,
all of these ferrets died of canine dis-
temper. Six additional ferrets were then
captured, and these remained healthy.
During the fall of 1986 and the spring of
1987, the last of 18 known wild black-
footed ferrets were taken from the wild
and placed in the captive breeding
facility. This captive population has
increased to more than 500 captive
black-footed ferrets.
The goal of the captive breeding
program is to establish 2^0 breeding
adults in captivity, while continuing the
return of ferrets to the wild. In an effort
to protect the ferrets from any one cata-
strophic event, the captive population
was divided. In addition to the Sybille
colony, breeding populations have
been established at the National Zoo's
Conservation and Research Center
in Front Royal, Virginia; the Henry
Doorly Zoo in Omaha, Nebraska; the
Cheyenne Mountain Zoological Park
in Colorado Springs, Colorado; the
Phoenix Zoo in Phoenix, Arizona; and
the Louisville Zoological Garden in
Louisville, Kentucky.
The future looks brighter for the
black-footed ferret. Reintroduction
began in 1991 with the release of a
group of ferrets into the Shirley Basin of
Wyoming. Since then, 189 ferrets have
been released there. While there is a
high mortality rate among these cap-
tive-born animals, two litters born in
the wild indicate that the reintroduced
population has taken hold.
Two new reintroduction sites in
Montana and South Dakota have been
identified, where at least 40 to 50 fer-
rets per year will be released at each site
for 5 years. After the fifth year, the sites
should be self-sustaining.
Areas in Utah, Colorado, and
Arizona also have been identified as
suitable release sites. To be considered
suitable for ferret reintroduction, an
area must be very large —at least 10,000
acres for each ferret family. The area
must be relatively free of diseases, par-
ticularly of canine distemper and
plague, that could wipe out an entire
colony. And, the public must support
the presence of the black-footed ferrets.
To this end, biologists work closely
with landowners to work out compro-
mises that benefit the ferret and
landowners.
National goals to recover the species
are to establish 10 free-ranging popula-
tions of black-footed ferrets, spread over
the widest possible area within their for-
mer range. Each of these populations
will have 30 or more breeding aduhs. It
is hoped that 1,500 free-ranging black-
footed ferrets will be established in the
wild by the year 2010.
If these and future efforts are
successful, black-footed ferrets may
soon by playing an important role ir the
dynamics of wild prairie dog towns
once again.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
PIS! * WILDLIFE
SERVICE
-------
THREATENED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
Grizzly bear
Ursus arctos hornbilis
A symbol ot America's wildlands,
the grizzly or brown bear is one
of the largest North American
land mammals. The grizzly bear's
historic range covered much of North
America from the mid-plains westward
to California and from central Mexico
north throughout Alaska and Canada.
Today, the grizzly bear is found in only
about 2 percent of its original range in
the lower 48 states.
Grizzly bears need a very large home
range (50 to 300 square miles for
females; 200 to 500 square miles for
males), encompassing diverse forests
interspersed with moist meadows and
grasslands in or near mountains. In the
spring, bears usually range at lower
elevations and go to higher altitudes for
^vinter hibernation.
Larger than the black bear, male
'grizzly bears stand about 7 feet tall and
weigh from 300 to 600 pounds (and
occasionally more than 800). Females
are smaller, usually weighing between
200 and 400 pounds. Although a stand-
ing grizzly is commonly perceived to be
a threatening pose, bears stand when
they are simply curious or surveying
their surroundings. Otherwise they
generally remain on all fours.
Unlike the black bear, the grizzly
bear has a rather concave face, high-
humped shoulders, and long, curved
claws. The grizzly's thick fur, which
varies from light brown to nearly black,
sometimes looks frosty-looking, hence
the name "grizzly," or the less common
"silvertip." The grizzly has shorter,
rounder ears than the black bear.
Except for mating and caring for the
young, grizzly bears primarily lead
solitary lives, spending most of their
time foraging, or looking for food.
k.The grizzly is North America's
^rgest omnwore, meaning ~
m eats both plants and
other animals. About
80 to 90 percent of the
grizzly's food is green
vegetation, wild fruits and berries, nuts,
and bulbs or roots ot certain plants.
Grizzlies also eat a great deal of insects,
sometimes tearing rotten logs apart and
turning over heavy stones in search of
the insects themselves or their larvae.
Most of the meat in the grizzly's diet
comes from animal carcasses, or camon,
of big game animals, although it will
sometimes prey on elk or moose calves
or smaller mammals. For grizzlies along
the west coast of Canada and in Alaska,
salmon is an important food source.
The grizzly bear must eat enough to
store huge amounts of fat needed to
sustain it through its long winter sleep.
The grizzly's ability to eat large quanti-
ties of rich food and store fat without
suffering from heart disease or choles-
terol problems is of great interest to
medical scientists. If scientists can
determine how grizzlies accomplish this,
that information may be useful in
preventing human heart disease.
At the top of the food chain, adult
grizzly bears have little to fear from
other wild animals. Grizzly cubs may fall
prey to mountain lions, wolves,
and other bears if they stray too
far from their mother.
Early in the fall, grizzly
bears begin looking for a
proper place to dig their
dens, and may travel many
miles before finding a suitable area.
Generally, they seek a high, remote
mountain slope where deep snow
will lie until spring to serve as insu-
lation. Grizzlies often dig beneath
the roots of a large tree
Obstructing roots are chewed up, and
loose rocks and earth are thrust through
the narrow entrance by the powerful
strokes of the grizzly's forepaws.
The grizzly bear will generally enter
its den in October or November. During
the next 5 to 6 months, the grizzly will
get no water or nourishment of any
kind but will use up its accumulated fat.
Male grizzly bears usually emerge
from the den in March or April, while
females emerge in late April and May.
When a grizzly comes out ot its den, the
first food is sometimes carrion from
animals that did not survive the winter.
A grizzly will usually travel to lower
elevations to reach vegetated areas.
Mating season is from June through
July. Grizzly bear embryos do not begin
to develop until the mother begins her
winter hibernation, although mating
may have taken place up to 6 months
before. As with other bears, if the
mother has not accumulated enough fat
to sustain herself as well as developing
cubs, the embryos may not implant
(develop).
In January, usually one to three
cubs, each weighing only a pound
or less, are born. The cubs gain
weight quickly and often have
reached 20 pounds by the
time they come out of
the den. As many as
half of all cubs may
not reach breeding
age —a leading rea-
son for the grizzly's
low numbers.
The grizzly has the
second slowest
reproductive rate of
all North American
mammals (the
muskox has the slowest),
making it harder for it to rebound from
threats to its survival. Females do not reach breeding
maturity until they are 4 to 9 years old and generally give birth to
two cubs every 3 years. About half of all cubs do not live to reach breeding age.
-------
Cabs remain dependent upon their
mother's milk tor almost a year, stay
with their mother tor to 2 to 3 years,
and reach breeding maturity at about
4l/2 to 5Vi years. In some cases they may
not breed until 81/: years of agi_. When
they do reach breeding age, females
only breed even,' 3 or more years. Males
compete with each other tor breeding
opportunities and seek females each
year. Grizzlies usually live to be 15 to 20
years of age, and a few survive for up to
30 years.
Between 1800 and 1975, grizzlvbear
populations in the lower 48 states
decreased from estimates ot more than
50,000 to less than 1,000. The grizzly was
eliminated from much of the West by the
late 1800s. As mountainous areas were
settled, development contributed to an
increase in human-caused mortality.
Livestock depredation control, habitat
deterioration, commercial trapping,
unregulated hunting, and the perception
that grizzlies threatened human lite were
leading causes of the animal's decline.
In 1975, the U.S. Fish and Wildlife
Service listed the grizzly bear as a threat-
ened species under the Endangered
Species Act, meaning it is considered
likely to become endangered ("endan-
gered" means a species is considered in
danger ot extinction within all or a
significant portion ot its range).
The grizzly's den is often dug beneath the roots of a
slope where snow will lie through the winter months
Many of the current threats to the
survival of grizzly bears are associated
with degradation of habitat due to rural
or recreational development, road
building, and energy and mineral explo-
ration. Habitat destruction in valleys
bottoms and riparian areas is particu-
larly harmful to grizzlies because they
use these "corridors" to travel from one
area to another when they are searching
tor food. Some private landowners and
companies are trying to help grizzlies by
voluntarily protecting grizzly corridors.
Some grizzly bears are accidentally
killed by hunters who mistake them for
black bears, which are legal game. But
the biggest threat to the grizzly is
human-caused mortality. Grizzlies
become habituated to humans because
ot what biologists call "attractants,"
which include garbage, pet foods, live-
stock carcasses, and improper camping
practices. This can eventually lead to
conflicts between people and bears —
not only in populated areas of the
grizzly's range but also in back country
recreation sites.
Today, in the lower 48 states, grizzlies
can be found in Wyoming, Montana,
Idaho, and Washington. There are at
least 350 grizzlies living in the northwest-
ern Montana Rockies, about 250 in or
around Yellowstone National Park, about
25 in the Selkirk Mountains in northern
Idaho and northeast Washington,
another 20 or so in the Cabinet-Yaak
ecosystem in northern Idaho and western
Montana, and 5 to 20 in the North
Cascades. In Alaska, where they are
called brown bears, they are estimated to
number more than 30,000. There are
about 22,000 grizzly bears in Canada.
One goal of the Fish and Wildlife
Service's plan to restore the grizzly
bear in the Lower 48 states is to
recover grizzly populations in all
of the ecosystems that are
known to have suitable habitat.
The six ecosystems in the con-
terminous U.S. that have been
identified by biologists as
• suitable for grizzly bears
are: Yellowstone (north-
western Wyoming,
southwestern Montana,
and eastern Idaho),
Northern Continental
large tree on a mountain Divide and Cabinet-
to serve as insulation. Yaak (northwestern
Unlike the black bear, the grizzly has a somewhat
concave face and high-humped shoulders. The
bear's thick fur, which varies from light brown to
nearly black, is sometimes frosty-looking, hence the
name "grizzly." or the less common "silvertip." In
coastal Alaska and other countries around the
world, grizzlies are called brown bears.
Montana), Bitterroot (central Idaho
and western Montana), Selkirks (Idaho
and eastern Washington), and the
North Cascades (Washington).
The grizzly bear recovery effort has
been met with some successes thus tar.
Grizzlies in the Yellowstone ecosystem
have now reached the recovers' target.
Grizzlies in the North Continental
Divide ecosystem have nearly reached
recovery goals, and are expected reach
them within a year or two.
These successes have been largely
due to a cooperative effort among several
organizations called the Interagency
Grizzly Bear Committee. Established in
1983, the committee includes the U.S.
Forest Service; National Park Service;
Bureau of Land Management; state agen-
cies in Montana, Wyoming, Idaho, and
Washington; Canadian wildlife manage-
ment agencies; and Native American
Tribes. The committee coordinates habi-
tat management, research, and educa-
tion and outreach for the grizzly bear.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
WEST INDIAN
MANATEE
Trichechus manatus
Christopher Columbus was the
first European to report seeing a
manatee tn the New World. To
Columbus, and other sailors who had
been at sea tor a long time, manatees
were reminiscent ot mermaids —the
mythical halt-fish, halt-woman creatures
of the ocean. Manatees are not fish,
however, but marine mammals.
The West Indian or Florida manatee
(and sometimes called sea cow) is found
primarily along the coast of Florida.
Most adult manatees are about 10 feet
long and weigh 800 to 1,200 pounds,
although some larger than 12 feet and
weighing as much as 3,500 pounds have
been recorded. These "gentle giants"
have a tough, wrinkled brown-to-gray
skin that is continuously being sloughed
off. Hair is distributed sparsely over the
body. With stiff whiskers around its
mouth, the manatee's face looks like a
walrus without tusks.
The manatee maneuvers through the
water moving its paddle-like tail up and
down and steering
with its flippers. It is
very agile for such a large animal,
sometimes somer-saulting and doing
barrel rolls in the water.
The manatee often rests suspended
just below the water's surface with only
the snout above water. It feeds under-
water, but must surface periodically to
breath. Although the manatee can
remain underwater for as long as
12 minutes, the average time is
4'/: minutes.
Manatees are herbivores, meaning
they eat only plants. But they eat a
great variety of aquatic plant species,
including water hyacinth and hydrilla.
Manatees must eat 4 to 9 percent of
their body weight each day. That's at
least 32 pounds of plants per day for an
800-pound manatee! To do this, they
spend 5 to 8 hours a day eating.
Manatees spend their lives moving
between freshwater, brackish, and salt-
water environments. They prefer large,
*•
mm
slow-moving rivers, river
mouths, and shallow coastal areas such
as coves and bays. Great distances may
be covered as the animals migrate
between winter and summer grounds.
During the winter, manatees congregate
around warm springs and power plants
that discharge warm water. During
summer months, they have occasionally
been seen as far north as Virginia and
Maryland.
Manatees reach breeding maturity
between 3 and 10 years of age. The
gestation period is approximately 13
months. Calves may be born at any time
during the year. Usually only one calt is
born, but twins do occur. Newborn
calves weigh 60 to 70 pounds and are
4 to 4V2 feet long. They nurse under-
water for about 3 minutes at a time
from a nipple located behind their
mother's forelimb. Born with teeth,
calves begin eating plants within a
tew weeks but remain with their
mother for up to 2 years.
Most adult manatees are about 10 feet long and weigh 800 to 1,200 pounds, although some larger than 12 feet long and weighing as much as 3,500 pounds have
been recorded. Many of the remaining manatees bear scars from encounters with boat propellers—a leading cause of manatee deaths.
-------
Although twins do occur, an adult female manatee
will usually have one calf every 2 to 5 years. The
manatee's low reproductive rate makes it less capa-
ble of rebounding from threats to its survival. In
general, the birth rate is not able to keep up with
those manatees killed by boats.
Manatees communicate with each
other by emitting sounds underwater
rhat are audible to humans. The vocal-
izations, which sound like squeaks and
squeals, are especially important tor
maintaining contact between mother
and calf. One field report described a
mother and her calt, separated by a
flood gate, calling to each other for
3 hours without interruption until
they were reunited.
Historically, manatees were hunted
for the tlesh, bones, and hide by Native
Americans and later by the early-
colonists. Manatee fat was used for
lamp oil, bones were us£d for medicinal
purposes, and the hide for leather. This
hunting is thought to be largely respon-
sible for the manatee's initial decline.
Natural events also imperil the lives
ot manatees. In 1977, 1981, 1984, and
1989, unusually cold winters lowered
water temperatures throughout Florida,
killing many manatees, which cannot
survive long in cold water. As the water
temperature drops below 60°F, mana-
tees become sluggish and stop eating.
Young manatees are especially suscepti-
ble to the effects of cold temperatures.
Periodic red tide blooms have also
been associated with a number of mana-
tee deaths. Red tide toxins accumulate
in sea squirts which adhere to sea
grasses. This poison is ingested inciden-
tally by manatees feeding on sea grasses.
But the largest problems facing the
manatee are caused by man. Speeding
boats run over many manatees that are
submerged just below the surface,
killing them either by impact with the
boat itself or by slicing into their backs
with the propellers. Manatees that sur-
vive such encounters carry distinctive
scars (in fact, biologists studying the
manatee use the scars as ways of identi-
fying individual manatees). Many areas
now post speed-limit signs for boaters,
or prohibit them completely in areas
heavily populated by manatees.
Flood gates and canal locks have
accidentally killed manatees either by
crushing or drowning them, although
modifications of operating procedures
have reduced the number ot fatalities
trom this source. Fishing line and other
trash discarded into the water are also
responsible for a small number of mana-
tee deaths each year. Death may result
if the manatee's digestive tract becomes
blocked by fishing line accidentally
eaten. Fishing line may also become
tightly wound around a flipper, creating
serious infection, amputation, or at
worst, death.
Harassment from skin divers, fisher-
men, and boaters can interrupt feeding
and mating activities. During the win-
ter, manatees may be driven into cooler
water where they are more susceptible
to disease and cold stress.
The manatee has difficulty rebound-
ing from these threats because of its late
breeding maturity and its low reproduc-
tive rate. In general, the birth rate is not
able to keep up with those manatees
killed by boats.
Manatee population counts are usu-
ally conducted from airplanes. It is diffi-
cult to obtain an exact population
figure because poor weather or murky
water conditions make it difficult to
clearly see the manatees. In 1992, 1,856
manatees were counted by aerial sur-
veys conducted throughout the mana-
tee's range.
Biologists use radio tracking to study
individual manatees, locate and assess
habitat use areas, and learn about
migratory patterns.
As long ago as 1893, Florida passed a
law to protect manatees. Since 1907,
there has been a $500 fine for any person
who kills or harms a manatee. In 1978,
Florida designated the entire state as a
"refuge and sanctuary for the manatees"
through the Florida Manatee Sanctuary
Act. This law allows the State of Florida
to designate manatee sanctuaries and
establish speed :ones tor boats.
At the Crystal River National
Wildlife Refuge on Florida's West Coast,
boats are required to reduce their speed
and, during the winter when manatees
congregate, boats, swimmers, and divers
are prohibited in certain areas.
The manatee was listed as an endan-
gered species in 1967 (under a law that
preceded the Endangered Species Act
of 1973), meaning it is considered in
danger of extinction throughout all or a
significant portion of its range. The
manatee also is protected at the federal
level under the Marine Mammal
Protection Act of 1972.
A vital component of the U.S. Fish
and Wildlife Service's recovery efforts for
the manatee is increasing public aware-
ness and cooperation among boaters,
skin divers, fishermen, and anyone else
using the rivers and coastal waters where
manatees live. With growing awareness
and positive action, the manatee can be
saved for generations to come.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
Elephant
African and Asian elephants
descended from a long line of
giant animals that included the
wooly mammoth and mastodon.
The word "elephant" comes from the
Greek word elephas, meaning ivory, in
reference to the animal's prominent
tusks, which are actually elongated
incisor teeth. Excepting tusks, ele-
phants have only four molar teeth.
These teeth are replaced as they are
worn away, up to six times throughout
an elephant's lite.
The elephant's trunk is another
unique and important feature. It is used
not only for drinking and bathing but
for smelling, breathing, feeling, and
grasping food. At the end of the trunk is
a sensitive "finger" for grasping things
^as small as a berry or as large as a
fcranch. African elephants have two fin-
'gers while the Asian has only one. They
also use their trunk as a snorkel when
crossing deep rivers. Baby elephants are
not born knowing how to use their
trunk —they must learn.
Elephants live in the hot climates of
Africa and Asia. To help protect them-
selves from the heat, elephants have
large ears, with prominent veins, that
African Elephant
they can flap to cool their blood. They
must stay near water, not only for drink-
ing, but also for bathing and cooling. In
addition to mud baths, elephants also
take dust baths to try to keep cool and
deter insect attacks..
Elephants are herbivores, or plant-
eaters. They feed on grasses, fruits,
leaves, branches, bark, and twigs.
Because of their large size and because
as much as 60 percent of what they eat
passes through without being digested,
elephants spend about 16 hours a day
foraging for nearly 350 pounds of food.
In addition, they drink about 18 gallons
of water each day.
Elephants are very social animals.
They live in small herds composed of a
group of females, or cows, and their
young (calves) which are led by an older,
experienced cow called the matriach.
The herd works together to take care of
the calves and to signal the others of
danger. When a member of the herd
dies, the other elephants may cover it
with twigs and leaves and mourn their
loss by staying at the gravesite for hours.
Some males, or bulls, form bachelor
herds, joining the females only to mate,
while other bulls are loners.
neury,-—
The elephant's lifespan is up to 60
years. Elephants do not mate until they
are about 15 years old, and usually give
birth every 4 years. After 22 months of
pregnancy, a single calf is born weighing
about 250 pounds and standing almost
3 feet tall. While the calf will begin eat-
ing vegetation within a few months, it
continues to nurse on its mother's milk
until it is at least 2 years old.
While calves may fall prey to lions or
hyenas, adult elephants have no natural
predators except man. Not only have
elephants been slaughtered for their
ivory tusks, but their populations have
declined significantly because of habitat
destruction and fragmentation.
While Asian and African elephants
have a lot in common, each species
The African elephant is larger than the Asian. Other
differences between the two species are the ears
(the African's are larger), the tusks (the African's
are much larger), and the back (the African's back
dips, while the Asian's back is slightly arched).
Asian Elephant
u
m
-------
African elephant
(Loxodonta afncana)
African elephants are the largest of
all land animals. Males stand an aver-
age of 10 feet tall at the shoulder and
weigh as much as 12,000 pounds (6
tons). Females are a little shorter and
weigh about 8.000 pounds (4 tonsk
The African elephant has large,
floppy ears that cover its shoulders and
a small, smooth forehead. Both males
and females have large tusks. It also
has a dip in its back.
Found throughout much of Africa,
those living in bush habitat are found
south of the Sahara, while those inhab-
iting forest areas live in Cameroon,
Congo, Ivory Coast, and other central
and western African nations. Although
African elephants numbered approxi-
mately 1.5 million in 1978, today there
are about 600,000 African elephants
remaining in the wild.
While habitat destruction and frag-
mentation threaten the African ele-
phant's future, the greatest immediate
threat to their survival is poaching, or
illegal killing, to supply the ivory mar-
ket, an extremely lucrative trade. Many
products are made from elephant ivory,
from jewelry to piano keys.
Several African countries have
implemented elephant conservation
programs, many of which include set-
ting aside preserve areas and hiring
wildlife rangers to protect elephants
from poachers. Flowever, limited
resources and the eminent danger of
poaching operations, as well as the
political instability of many African
countries, makes it very challenging to
implement effective, long-term ele-
phant conservation programs in
Africa.
ASIAN ELEPHANT
(Elephas maximus)
Asian elephants differ in appear-
ance from their African relatives by
having smaller ears, smaller tusks (the
female's are almost non-existent), two
humps on the forehead, and an arched
back.
As for size, the Asian elephant is
smaller. Males stand 9 to 10H feet tall
and weigh about 8,000 pounds (4 tons)
while females are a bit shorter and
weigh a little more than 6,000 pounds
(3 tons).
The Asian elephant's home is in the
forests and jungles of India, Sri Lanka,
China, Indonesia, and southeast Asia.
Today, there are about 29,000 to
40,000 Asian elephants remaining in
the wild.
While poaching threatens African
elephants, Asian elephants are mainly
threatened by destruction and frag-
mentation of their habitat.
Conversion of certain areas to crop
land to feed ever-growing human pop-
ulations in places like India has led to
an increased amount of elephant
attacks on humans, as elephants eat
crops planted on lands that were once
their feeding grounds.
Elephant migratory routes have
been interrupted by highways and
other urban development. Such frag-
mentation isolates herds, preventing
unrelated elephants from mating with
one another —a vital necessity it ele-
phants are to maintain their genetic
diversity and survive in perpetuity.
looks a bit different and each faces
different threats to its survival.
Under the Endangered Species Act,
the African elephant is listed as a
threatened species and the Asian ele-
phant is listed as an endangered species.
"Endangered" means a species is consid-
ered in danger of extinction throughout
all or a significant portion of its range,
and "threatened" means a species is
considered in danger of becoming
endangered. This protection prohibits
elephant parts and products from being
imported into the United
States except under
Wv. \ -i-,' certain conditions.
In addition, elephants are protected
under the Convention on International
Trade in Endangered Species of Wild
Fauna and Flora (CITES), an agree-
ment among more than 120 nations to
eliminate illegal trade in animals and
plants, such as elephants, and their
parts and associated products. The
U.S. Fish and Wildlife Service is the
federal agency responsible for the U.S.
government's compliance with the
CITES treaty.
The African Elephant Conservation
Act of 1988 prohibits the import of raw
or worked ivory into the US., with
certain exceptions.
It also set up a
Female elephants
live in small herds
and are usually
joined by males only
to mate. Elephants
do not reach breed-
ing maturity until
they are about
15 years old, and
give birth about
every 4 years.
grant program to fund elephant
conservation efforts.
In June 1989, the U.S. government
imposed a ban on commercial importa-
tion of African elephant ivory into the
country. This led to a commercial ivory
trade ban being adopted by all CITES
member nations later in 1989.
The U.S. Fish and Wildlife Service
also supports elephant conservation
efforts in other countries through
funding and technical assistance that
includes resource management,
research, and education.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
TIGER
Panthera tigris
There are several different types of
tigers, or subspecies, and their
names reflect where they live
geographically. Pressures from illegal
killing, or poaching, and habitat loss
have already driven three tiger sub-
species to extinction (the Bali, Javan,
and Caspian subspecies) while the
remainder are threatened with the same
fate. Today, tiger subspecies include the
Indian or Bengal, Indo-Chinese, South
Chinese, Sumatran, and Siberian tigers.
Tigers occupy habitats as diverse as
the coniferous, mixed deciduous forests
of the Russian Far East to the
tropical rainforests,
grasslands, and
marshes of India
and Indonesia.
.In the
Bast,
they were also
found around the
Caspian Sea in
Turkey and Iran
and on the islands
of Bali and Java in
Indonesia.
Tigers belong to the cat family, and
are the biggest of the big cats, a group
which includes lions, jaguars, and
leopards.
The Siberian tiger is the largest of all
of the tiger subspecies. Its size and extra
thick, long coat help it survive tempera-
tures as low as -49 degrees F. Also,
the Siberian tiger's coat is more
yellow than its tropical relatives, which
are brighter in color with shorter and
thinner hair. The Bali tiger was the
smallest of all the tigers; today, the
Sumatran tiger is the smallest of the liv-
ing subspecies.
Although there is some variation in
size among the subspecies, males gener-
ally measure about 11 feet (3 meters)
from their nose to the tip of their tail
and weigh about 400 pounds (170 kg).
Females are slightly smaller measuring
a little more than 8 feet (2.5 meters)
and weighing about 300 pounds
(135 kg). Males also have ruffs of
hair around their cheeks.
Although its orange coat with black
stripes and white patches is very
conspicuous in a zoo, the
tiger blends in well with
The black lines serve to
break up its body shape in
stripes also serve
rJIfe
WAHNAU
*&.52--"
mmmj
Three ot the
. eight tiger
*"* subspecies
have already been driven to
extinction—and the remainder
are threatened with the same
fate. Although it is estimated
that a century ago some
50,000 to 80.000 tigers roamed
India alone, today, there are about
5,000 tigers or less worldwide.
-------
as identifying markers because, just like
human fingerprints, no two tigers have
the same pattern of stripes.
Tigers are carnivores, or meat-eaters.
They prefer deer, aiv >pes, and wild
pigs, but they will ea. natever they can
catch. This might be animals as small as
frogs, turtles, fish, orbirds, or animals as
large as water buffalo, elk, rhinoceros,
or elephant calves. Tigers generally
avoid contact with humans.
Tigers are well-equipped for hunting.
Their keen eyesight picks up even the
slightest movement. The tiger's large,
cup-shaped ears focus sounds making
its hearing very sensitive. A tiger's long,
stiff whiskers are used as feelers to
help it maneuver through twigs and
branches in the dark. The tiger's sense
of smell is also excellent.
Like housecats, tigers have
retractable claws. They can pull their
claws into a protective sheath to pre-
vent them from becoming worn down
while walking on rocks or hard ground,
keeping them very sharp.
Tigers are primarily nocturnal, mean-
ing they hunt at night. But they may
continue to hunt during the day if they
are not successful. They may travel 10
to 20 miles in a single night searching
for a meal.
Tigers rely on surprise and great
strength to overcome their prey. They
may stalk their prey, or lie in ambush at
a watering hole or a well-used path.
Tigers can run very fast, but only for
brief distances (about 80 feet). If an
animal eludes them, they seldom
continue to chase it.
If they catch their prey, tigers are
very effective at killing it, but they fail
to catch their targets many more times
than they succeed; a tiger might only
succeed in catching a meal once in 15
or 20 attempts.
Tigers can eat as much as 50 to
70 pounds at one meal. Many times,
though, they eat much less and may go
a week without any food at all.
A male tiger's territory might encom-
pass up to 25 square miles, while a
female's range is about 8 to 10 square
miles. A male tiger is willing to share its
territory with females, but he will not
tolerate another male. Tigers mark their
territory by scratching trees, scraping
the ground, and spraying trees, rocks,
and bushes with urine.
Tigers may live up to 15 years in the
wild. Most of this time is spent alone,
coming together only to mate. The mat-
ing period lasts only a few days, then
male and female go their separate ways
once again.
About 3 to 3 Vi months after mating,
a litter averaging 2 to 3 cubs is born.
About the size of a housecat, the cubs
are blind and helpless. It will be 2 weeks
before their eyes open, and they will be
3 months old before they start eating
meat.
At first, the mother brings food back
to the den. After about 2Vi months, the
cubs will accompany her to learn how
to hunt. Young cubs fo'low their mother
through tall grass, keeping sight of the
back of her ears, which are easily identi-
fied by the black coloring with a large
white spot.
After l'/2 years of learning to survive,
the young can effectively hunt on their
own, but often, due to their lack of
experience, the young may be hurt or
even killed by the antlers or hooves of
prey. At this time, they leave their
mother's territory to establish their
own, and are ready to begin breeding
and raising their own families.
Some estimates indicate that a cen-
tury ago, some 50,000 to 80,000 tigers
roamed India alone. Today, there are
about 5,000 tigers or less worldwide.
And these numbers continue to decline.
Until it was banned, trophy hunting
and a market for tiger rugs and coats
threatened the tiger's survival. Today,
habitat destruction, population growth,
and an insatiable demand for tiger parts
may be too much for the remaining
tigers to survive.
In many Asian cultures, tiger parts
are thought to cure diseases such as
rheumatism, convulsions, typhoid fever,
and dysentery. Tiger bone used in these
traditional medicines sells for as much
as $75 to $115 per pound—as much as
some villagers make in a year. In addi-
tion, tiger genitalia is considered to be
an aphrodisiac, a substance thought to
contribute to sexual stamina. All of
these factors cause widespread poaching
of tigers.
In Russia, logging threatens the
Siberian tiger's already shrinking habi-
tat. Poaching has greatly increased since
the borders between Russia, China, and
North Korea opened, providing easy
access to the black markets there and
in Taiwan.
In 1972, India led the world in efforts
to save the tiger by setting aside a num-
ber of areas as tiger reserves complete
with patrolling guards. But poaching
continues due to widespread corruption
and a lack of alternative incomes for vil-
lage populations that continue to grow.
The tiger is protected under the
Convention on International Trade in
Endangered Species of Wild Fauna and
Flora (CITES), an agreement among
more than 120 nations to eliminate ille-
gal trade in animals and plants, such as
wild tigers, and their parts and associ-
ated products. The U.S. Fish and
Wildlife Service is the federal agency
responsible for the U.S. government's
compliance with the CITES treaty.
The U.S. government imposed
wildlife trade sanctions on Taiwan in
1994 for that country's illegal trade in
tiger as well as rhinoceros parts and
products—the first time the U.S. gov-
ernment has taken such action on
another country to penalize illegal trade
in critically endangered wildlife.
In addition, all tiger species are listed
as endangered species under the
Endangered Species Act, prohibiting
tiger parts and products from being
imported into the U.S. except under
certain conditions.
The U.S. Fish and Wildlife Service
also supports conservation efforts in
other countries, such as India, through
funding and technical assistance that
includes resource management,
research, and education.
Even in areas where the tiger is now
extinct, it lives on in myths, legends,
and rituals. Tigers may never be as
numerous as they were a century ago,
but perhaps we can learn to revere and
protect them before it is too late.
Biolqgue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
Rhinoceros
Prehistoric rhinoceroses, some
larger than elephants, some the
size of wolves, were found on
every continent except South America
and Australia. Today, there are five
species of rhino; two African species
and three Asian. The African species
are the white, or square-lipped, and the
black rhinos. Both species have two
horns. Of the Asian species, the Indian
and the Javan each have a single horn,
while the Sumatran rhino has two.
The word rhinoceros means "horn-
nosed," and rhinos use their horns for
several purposes. They use them to
shovel the ground for mineral salt; to
fight over territory, a female, or during
courtship; and to defend themselves
and their young against lions, tigers,
and hyenas.
i Like butfalos and elephants, rhinos
Pre very near-sighted. They can only see
clearly up to about 30 feet away. The
lateral placement of their eyes causes
them to turn their heads from side to
side to see stratght ahead.
Rhinos' extremely acute senses of
hearing and smell compensate for their
poor eyesight. Rhinos are able to pin-
point the origin of a sound and charge
at it. And they use their highly devel-
Rhinos are herbivores, meaning they eat only
plants. The white rhino eats primarily grasses, for
which its square-shaped lip is ideally suited.
oped sense of smell to identify other rhi-
nos, keep track of their young, and
identify predators.
In addition, "tick birds," such as
egrets, oxpeckers, and mynas, which
feed on ticks and otjher insects and par-
asites plaguing the rhino's skin, serve as
an early warning system, alerting the
rhino to danger when they are startled.
Rhinos are herbivores, meaning they
eat only plants. But each rhino species
prefers something different. The white
rhino eats primarily grasses, for which
its square-shaped lip is ideally suited.
Other rhinos prefer to browse on bushes
or trees. They have a pointed prehensile
Rhinos use their horns for
several purposes: to shovel
the ground for mineral salt,
fight over territory or females,
and defend themselves or
their young from predators.
upper lip —that is, their lip can actually
grasp branches to help pull and break
them. The Javan and Sumatran rhinos
prefer leaves in the upper-most parts of
trees. They will knock down trees to
reach the upper branches, leaving the
lower limbs uneaten.
Male and female rhinos both estab-
lish territories. Males, or bulls, mark and
defend their territories viciously. Recent
observations indicate females may fight
over their territories as well. Bulls com-
peting for a female try to intimidate
each other by charging one another.
Males and females often fight during
courtship, too. Some of the fighting may
turn violent and bloody from wounds
inflicted with the horns. Once mating is
over, males and females go their sepa-
rate ways again.
Fourteen to eighteen months later, a
calf is born. Calves are on their feet
within hours of birth. And, although
they nurse for a year, they begin eating
vegetation in about a week.
Calves remain close to their mother
until they are about 3 years old. At this
time, another calf may have been born
and the mother chases off her older
offspring.
In captivity, rhinos may live for up to
40 years, but biologists estimate they live
about 30 to 35 years in the wild. For the
most part, rhinos are solitary animals.
But white rhinos are known to form
groups of as many as 18 animals and
Indian rhinos sometimes form small
groups, too.
Some people might be surprised
when they see a rhinocefos because it
might be any color from gray to red.
The coloring comes from the mud the
rhino wallows in each day. Mud baths
are essential for the good health of all
rhinos because they provide relief from
biting insects, keep their skin in good
condition, and help keep them cool.
The only land animal larger than the
rhino is the elephant. The future of
-------
these giants is guarded as their habitat
continues to he lost to agriculture and
development, and a market for medi-
cines made ot rhino horn encourages
poaching, or illegal killing.
In India, rhino grazing grounds
have been converted to rice paddies
to teed an ever-growing population.
There the rhino is considered a pest as
it raids rice paddies and eats crops.
In Java, the rhino has suftered from
lumber demands that have led to
deforestation ot its habitat.
Poaching poses an even greater
threat to rhino survival. For centuries,
Asians have believed that powdered
rhino horn could cure everything trom
fevers and nose bleeds to measles, diph-
theria, and food poisoning. Many also
believe powdered rhino horn helps
retain the vigor ot youth and con-
tributes to sexual stamina. And, in the
Middle East, daggers made with rhino
horn handles are a status symbol.
\rt-n -
Wallowing in mud is an important activity for rhinos, since it gives them relief from biting insects, keeps their
skin in good condition, and keeps them cool during times of intense heat.
Some wildlife agencies in Africa
have tried programs to saw off the
horns of rhinos in an attempt to elimi-
nate the poachers' incentive to kill
them. Unfortunately, since 1983, at
least 94 de-horned rhinos have been
killed by poachers.
The rhino is protected under the
Convention on International Trade in
Endangered Species of Wild Fauna
White or Square-lipped rhinoceros
Ceratothenum simum
There are two subspecies of the
white rhino —the northern white
rhino, which is nearly extinct, and the
southern white rhino, which is the
most common of all rhinos. The white
rhino is actually gray. Its name proba-
bly stems trom the mistranslation of
the Dutch word tor "wide" describing
its upper lip. It lives on the open
plains ot Africa. The largest ot the rhi-
nos, it stands more than 6 feet tall and
weighs 6,000 to S,000 pounds. It also
has the longest horn, averaging
18 inches to 4 teet.
Black rhinoceros Diceros bicomis
The black rhino also lives in Africa,
but in a variety ot habitats from the
dense rainforests to the dry scrub-
lands. Once numerous in eastern and
southern Africa, it is now only found
in national parks and game reserves.
The black rhino stands more than
5V: feet tall and weighs up to 4,000
pounds. Its front horn averages
18 inches to 4 feet.
Indian rhinoceros Rhinoceros unicornis
The Indian rhino weighs the same
as the black rhino—about 4,000
pounds —but stands about 6 teet tall.
This rhino was once found throughout
most of India, particularly in lush river
valleys. Today, it survives only on
eight reserves in India and Nepal.
Living in swampy areas, it eats marsh
grasses and aquatic plants.
Sumatran rhinoceros
Dicerorhinus sumatrensis
The Sumatran rhino is the only
Asian rhino species with two horns
and the only rhino with hair on its
body. The front horn averages 15 to 20
inches and the second may be hardly
noticeable. It stands about 4Vi feet tall
and weighs 750 to 2,000 pounds.
There are a tew Sumatran rhinos left
in Burma, Malaysia, Thailand, and
Sumatra. They live in dense forests
and feed on plants at the forest edges
and in mountain clearings.
Javan rhinoceros Rhinoceros sondaicus
Like the Sumatran, the Javan rhino
also lives in dense forests, feeding at
forest edges and mountain clearings
on bamboo, fruit, and other plants.
There are fewer than 100 Javan rhinos
on a game reserve in western Java,
and many believe they are extinct in
the wild. Javan rhinos weigh up to
3,000 pounds and measure 4Vi to
5'/: feet tall.
and Flora (CITES), an agreement
among more than 120 nations to elimi-
nate illegal trade in animals and plants
and their parts and associated products.
The U.S. Fish and Wildlife Service is
the federal agency responsible for the
U.S. government's compliance with
the CITES treaty.
Currently, some countries are
threatening to impose trade sanctions
against Yemen, South Korea, China,
and Taiwan for allegedly violating the
CITES agreement. The United States
imposed wildlife trade sanctions on
Taiwan in 1994 for that country's illegal
trade in rhino as well as tiger parts
and products —the first time the U.S.
government has taken such action on
another country to penalize illegal trade
in critically endangered wildlife.
In addition, all five rhinoceros
species are listed as endangered species
under the Endangered Species Act,
prohibiting rhino parts and products
from being imported into the U.S.
except under certain conditions.
The U.S. Fish and Wildlife Service
also supports international rhino
conservation efforts through funding
and technical assistance that includes
resource management, research, and
educational programs.
biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
:
>
ENDANGERED
SPECIES
|This Species is Protected Under the
Endangered Species Act of 1973
Giant panda
Ailuropoda melanoleuca
What animal is black and white
and loved all over the world?
If you guessed the giant
panda, you're right! The giant panda is
also known as the panda bear, bamboo
bear, or in Chinese as Daxiongmao, the
"large bear cat." In tact, its scientific
name means "black and white cat-
footed animal."
Giant pandas are found only in the
mountains of central China —in small
isolated areas of the north and central
portions ot the Sichuan Province, in the
mountains bordering the southernmost
part of Gansu Province, and in the
Qinling Mountains of the Shaanxi
Province.
Giant pandas live in dense bamboo
and coniferous forests at altitudes of
>5,000 to 10,000 feet. The mountains are
iBirouded in heavy clouds with torren-
PRal rains or dense mist throughout the
year.
Ancestors of the giant panda existed
in the mid-Miocene Era (about 3 mil-
lion years ago), when their geographic
range extended throughout southern
China. Fossil remains also have been
found in present-day Burma and
Vietnam.
Giant pandas are bear-like in shape
with striking black and white markings.
The ears, eye patches, legs, and shoul-
der band are black; the rest of the body
is whitish. They have a thick, woolly
coat to insulate them from the cold.
Adults are 4 to 6 feet long and may
weigh up to 350 pounds —about the
same size as the American black bear.
However, unlike the black bear, giant
pandas do not hibernate and cannot
walk on their hind legs.
The giant panda has unique front
paws—one of the wrist bones is
^enlarged and elongated and is used like
^ant pandas are bear-like in shape with black ears,
eye patches, legs, and shoulder bands and whitish
coloring on the rest of the body.
a thumb, enabling the giant panda to
grasp stalks of bamboo. They also have
very powerful jaws and teeth to crush
bamboo. While bamboo stalks and roots
make up about 95 percent of its diet,
the giant panda also feeds on gentians,
irises, crocuses, fish, and occasionally
small rodents. It must eat 20 to 40
pounds of food each day to survive, and
spends 10 to 16 hours a day feeding.
The giant panda reaches breeding
maturity between 4 and 10 years of age.
Mating usually takes place in the spring,
and 3 to 5 months later, one or two cubs
weighing 3 to 5 ounces each is born in a
sheltered den. Usually only one cub
survives. The eyes open at V/i to 2
months and the cub becomes mobile
at approximately 3 months of age. At
12 months the cub becomes totally
independent. While their average lifes-
pan in the wild is about 15 years, giant
pandas in captivity have been known
to live into their 20s.
w
Scientists have debated for more
than a century whether giant pandas
belong to the bear family, the raccoon
family, or a separate family of their own.
This is because the giant panda and its
cousin, the lesser or red panda, share
many characteristics with both bears
and raccoons. Recent DNA analysis
indicates that giant pandas are more
closely related to bears and red pandas
are more closely related to raccoons.
In 1869, a French missionary and
naturalist named Pere Armand David
was the first European to describe the
giant panda. In 1936, clothing designer
Ruth Harkness brought the first live
giant panda, named Su-Lin, out of
China and to the West. Su-Lin lived at
Chicago's Brookfield Zoo and was a
celebrity until he died in 1938. Today,
more than 100 giant pandas are found
in Chinese zoos, and several others are
housed in North Korean zoos. Only
about 15 giant pandas live in zoos out-
side of China and North Korea. In
1980, the first giant panda birth
outside China occurred at the
Mexico City Zoo.
Until recently, Washington,
DC's National Zoo housed
Ling-Ling and Hsing-Hsing,
perhaps the most well-known
giant pandas in North
America. A gift from the
People's Republic of China
to the people of the United
j.. States, they were presented
as a gesture of amity and
goodwill to President
Richard Nixon when he
visited China in 1972.
Ling-Ling, at age 23, died
in December 1992.
-------
Gianr pandas are among the rarest
mammals in the world —there are prob-
ably fewer than 1,000 left in the wild.
Although adult giant pandas have few
natural enemies, the young are some-
times preyed upon by leopards.
Habitat encroachment and destruc-
tion are the greatest threats to the con-
tinued existence of the giant panda.
This is mainly because of the demand
for land and natural resources by-
China's I billion inhabitants. To offset
The giant panda has unique front paws. One of
the wrist bones is enlarged and elongated and is
used like a thumb, enabling the panda to grasp
stalks of bamboo.
this situation, the Chinese government
has set aside 11 nature preserves where
bamboo flourishes and giant pandas are
known to live.
Giant pandas are also susceptible to
poaching, or illegal killing, as their dense
fur carries a high price in illegal markets
of the Far East. The Chinese govern-
ment has imposed life-in-prison
sentences for those convicted of
poaching giant pandas.
The low reproductive capacity
of the giant panda makes it more
vulnerable to these threats, and
less capable of rebounding from
its low numbers.
In 1984, the U.S. Fish and
Wildlife Service listed the giant
panda as an endangered species
under the Endangered Species
Act, meaning the animal is con-
sidered in danger of extinction
throughout all or a significant
portion of its range. This protection
also prohibits giant pandas from
being imported into the U.S. except
under certain conditions.
The giant panda is also protected
under the Convention on International
Trade in Endangered Species of Wild
Fauna and Flora (CITES), a treaty
among more than 120 nations aimed at
controlling illegal trade in endangered
animal and plant species. The U.S. Fish
and Wildlife Service is the federal
The giant panda eats 20 to 40 pounds of food
each day, mostly bamboo, and spends 10 to
16 hours a day feedirg.
agency responsible for the U.S. govern-
ment's compliance with CITES.
The Fish and Wildlife Service is
currently developing a policy for the
importation of giant pandas for scien-
tific research, education via zoological
display, and a long-term international
breeding program. This policy is
expected to go into effect in 1995.
Many U.S. zoos support giant panda
conservation efforts in China.
Scientists continue to study ways
to improve breeding success tn captivity
and increase wild giant panda popula-
tions in order to ensure their continued
survival.
BlOLOGUE SERIES
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
One of the rarest mammals in the world, there are probably fewer than 1,000 giant pandas remaining in the
wild. Habitat encroachment and destruction as well as illegal killing are the main causes for the giant
panda s decline.
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act ol 1973
BROWN
PELICAN
(Pelecanus occidentals)
A wonderful bird is the pelican,
his bill can hold more than his
belly can...." So begins a well
known limerick by Dixon Lanier
Merritt that is not far from the truth.
The pouch suspended from the lower
half of the pelican's long, straight bill
really can hold up to three times more
than the stomach.
In addition to being used as a dipnet,
the pouch holds the pelican's catch of
fish until the accompanying water (as
much as 3 gallons) is squeezed out.
During this time, laughing gulls often
hover above pelicans, or even sit on
their bills, ready to steal a fish or two.
Once the water is out, the pelican then
^wallows the fish and carries them in its
^sophagus. The pouch also serves as a
cooling mechanism in hot weather, and
as a feeding trough for young pelicans.
The brown pelican, also called
American brown pelican or common
pelican, inhabits the Atlantic, Pacific,
and Gulf Coasts of North and South
America. On the Atlantic Coast, they
can be found from Virginia south to the
mouth of the Amazon River in Brazil;
on the Pacific, they range from central
California to south-central Chile and
the Galapagos Islands; and on the Gulf
of Mexico, they are found in Alabama,
Louisiana, and Texas. They are rarely
seen either inland or far out at sea.
At 42 to 54 inches long, weighing
8 to 10 pounds, and with a 6'/2- to
7'/2-foot wingspan, brown pelicans
are the smallest members of the peli-
can family (there are seven species of
pelican worldwide). They can be iden-
tified by their chestnut-and-white
necks; white heads with pale yellow
:rowns; brown-streaked back, rump,
md tail; blackish-brown belly; grayish
fill and pouch; and black legs and feet.
Brown pelicans are strong swimmers;
young ones barely able to fly have been
timed swimming at 3 m.p.h.
They are rather clumsy on land,
and fly with their necks folded,
heads resting on their backs, using
slow, powerful wingbeats.
Pelicans are social and gregarious.
Males and females, juveniles and adults,
congregate in large flocks for much of
the year.
Pelicans are primarily fish eaters, and
require up to 4 pounds of fish a day.
Their diet consists mainly of "rough"
fish—species considered unimportant
commercially. This includes menhaden,
herring, sheepshead, pigfish, mullet,
grass minnows, top minnows, and sil-
versides. Brown pelicans have also
been known to eat some crustaceans,
usually prawns.
Brown pelicans have
extremely keen eye-
sight. As they fly
over the ocean,
sometimes
HI
at heights of
r. 60 to 70 feet,
they can spot
a school.of
small fish, or
even a single fish. Diving steeply into
the water, they may submerge com-
pletely or only partly depending on the
height of the dive, and come up with a
mouthful of fish. Air sacs beneath the
pelican's skin cushion the impact and
help it surface.
Brown pelicans nest in large colonies
on the ground, in bushes, or in the tops
of trees. On the ground, a nest may be a
shallow depression lined with a few
feathers and a rim of soil
£
/or
Brown pelican populations plummeted due to the existence of DDT in the environment, which caused the
birds to lay eggs with shells so thin they broke during incubation. However, due to the ban on the use of
DDT in the U.S., as well as other conservation efforts, the brown pelican has made a strong comeback.
The Atlantic Coast population is no longer endangered.
-------
4
Young pelicans are blind, featherless. and altricial,
meaning they are completely dependent upon
their parents.
built up 4 to 10 inches above ground,
or it may be a large mound of soil and
debris with a cavity in the top. A tree-
top nest is built of reeds, grass, and
straw heaped on a mound of sticks
interwoven with the supporting tree
branches. In most of the pelican's U.S.
nesting range (South Carolina to
Florida in the East; Southern
California in the West; and
Alabama, Louisiana,
and Texas on
—
-------
ENDANGERED
SPECIES
This Species is Protected Under the
Endangered Species Act of 1973
®7"0P^
PEREGRINE
FALCON
Falco peregrinus anatum,
Falco peregrinus tundrius,
Falco peregrinus pealei
The peregrine talcon is one of
nature's swiftest and most beau-
tiful birds of prey. The name
comes from the latin word peregrinus,
meaning "foreigner" or "traveller." It is
noted for its speed, grace, and aerial
skills. There are three subspecies of the
peregrine falcon in North America: the
American, Arctic, and Peak's.
Peregrine falcons are medium-sized
hawks with long pointed wings. Adults
have slate blue-gray wings and backs
barred with black; pale undersides;
white faces with a black stripe on each
cheek; and large, dark eyes. Younger
birds are darker below and browner.
Peregrine falcons are roughly crow-
sized— about 15 to 21 inches long—with
a wingspan of about 40 inches. As with
(many raptors, or birds of prey, females
are larger than males.
Peregrine talcons live mostly along
mountain ranges, river valleys, and
coastlines. Historically, they were most
common in parts of the Appalachian
Mountains and nearby valleys from New
England south to Georgia, the upper
Mississippi River Valley, and the Rocky
Mountains. Peregrines also inhabited
mountain ranges and islands along the
Pacific Coast from Mexico north to
Alaska and in the Arctic tundra.
Peregrine falcons are found in other
parts of the world. Most peregrines from
northern Alaska, Canada, and
Greenland migrate in the fall to Central
and South America. On the way, they
often hunt along, the barrier islands on
the Atlantic and Gulf of Mexico Coasts.
Peregrines that nest south of Canada
migrate lesser distances, and some may
not migrate at all.
Peregrine falcons generally reach
breeding maturity at 2 years of age.
Usually, the male arrives at a nesting
site and begins a series of aerial acro-
batic displays to attract a mate. An
average clutch of four eggs is laid in the
spring, hatching about a month later.
Peregrines vigorously defend their nests,
although they may abandon them if
severely or continuously harassed.
The nest is a scrape or depression
dug in gravel on a cliff ledge. Rarely,
k
2
peregrines will nest in a tree cavity or
an old stick nest. Unlike many other
animals that cannot coexist with urban-
ization, some peregrines have readily
accepted man-made structures as
breeding habitat. For example, sky-
scraper ledges, tall towers, and bridges
serve as the ecological equivalent of a
cliff ledge. In 1988, 21 nesting pairs of
peregrines present in various urban
areas throughout North America suc-
cessfully fledged more than 40 young.
Peregrine falcons feed primarily on
other birds, such as songbirds, shore-
birds, ducks, and in urban areas, star-
lings and pigeons. Flying high above
their intended prey, peregrines will
"stoop" or dive and strike in mid-air,
killing the prey with a sharp blow.
Scientists estimate the speed of a diving
peregrine to be more than 200 mph.
Peregrine falcons have never been
very abundant. Studies in the 1930s and
1940s estimated about 500 breeding pairs
of peregrine falcons in the eastern United
States and about 1,000 pairs in the West
and Mexico. Then, beginning in the
late 1940s, peregrine falcons suffered a
devastating and rapid decline. By the
mid-1960s, the species had been elimi-
nated from nearly all of the eastern U.S.
Although less severe, the decline spread
west, where peregrine populations were
reduced by 80 to 90 percent by the mid-
1970s. At that time, only those popula-
tions with Peale's falcons nesting along
the north Pacific Coast in Alaska and
British Columbia appeared to be stable.
Scientists at the Patuxent Wildlife
Research Center near Laurel, Maryland,
investigating the peregrine's decline,
Peregrine falcon populations rapidly declined due
to the accumulation of DDT in their tissues which
interfered with eggshell formation. As a result,
falcons laid eggs with shells so thin they often
broke during incubation or otherwise failed to hatch.
-------
33m**
Scientists estimate the speed of a diving peregrine
to be more than 200 mph.
found unusually high concentrations of
the pesticide DDT and its breakdown
product DDE in peregrine falcons and
other birds of prey. The peregrines accu-
mulated DDT in their tissues by feeding
on birds that had eaten DDT-contami-
nated insects or seeds. The toxic chemi-
cal interfered with eggshell formation.
As a result, falcons laid eggs with shells
so thin they often broke during incuba-
tion or otherwise failed to hatch. As too
tew young were raised to replace adults
that died, peregrine populations seri-
ously declined.
In 1970, the American and Arctic
peregrine falcon subspecies were listed
as endangered (under a law that pre-
ceded the Endangered Species Act of
1973), meaning they were considered in
danger of extinction throughout all or a
significant portion of their ranges.
Because DDT and other pesticides were
not used in the northerly areas where
Peale's peregrines lived, these falcons
declined to a lesser degree and were not
listed. In addition, Peale's peregrines
were not susceptible to picking
up DDT in other areas because
they do not migrate and feed
largely on non-migratory prey.
In 1972, DDT was
banned tor most uses in the
U.S. However, DDE residues
are still found in some areas
of the country, and DDT
continues to be used in many
Latin American countries
where some peregrines and
their prey spend the winter.
Arctic peregrine falcon populations
have increased under the protection
of the Endangered Species Act
to the point they no longer need
protection—another endangered
species success story.
The U.S. Fish and Wildlife Service
established peregrine falcon recovery
teams comprised of federal, state, and
independent biologists to recommend
actions necessary to restore peregrines
in the U.S. As part of recovery efforts,
scientists at Cornell University success-
fully bred and raised peregrine falcons
in captivity. The Peregrine Fund, a pri-
vate organization, developed a major
propagation facility in Idaho.
As part of a cooperative effort among
the Fish and Wildlife Service, state
wildlife agencies, and The Peregrine
Fund, in 1974 scientists began releasing
captively produced young falcons into
the wild. Reintroduction of peregrines
in the East ended in 1991, and based on
signs of the peregrine's recovery, only a
few.small reintroduetions are still taking
place in certain areas of the West. In all,
more than 4,000 peregrines were
released to their former habitat as part
of reintroduction efforts.
To release captively bred peregrines,
young birds were placed in a specially
equipped box on top of a man-made
tower or cliff ledge. At first, the birds
were fed through a chute so they could
not see their human benefactors. When
they were old enough, the box was
opened and the young peregrines could
begin testing their wings. Gradually,
their food was reduced as the young
falcons learned to hunt on their own.
This process is known as hacking.
Arctic peregrine falcons may have
declined by as much as 80 percent; how-
ever, enough survived the pesticide era
that releases of captively bred young
were not necessary. Following restric-
tions on the use of DDT and recovery-
efforts under the Endangered Species
Act, Arctic peregrine numbers increased
to the point that the subspecies was
reclassified to "threatened" in 1984.
"Threatened" status is a less dire cate-
gory than "endangered," meaning a
species is considered likely to become
endangered, but is not in danger of
extinction. Then, in October 1994, the
Fish and Wildlife Service announced the
Arctic peregrine falcon had increased in
numbers to the point that the subspecies
no longer needed the protection of the
Endangered Species.Act — another
endangered species success story. There
are now thousands of Arctic peregrines
in North America and the vast majority
of peregrines on the continent belong to
this subspecies.
Populations of American peregrine
falcons are now estimated to be about
1,200 breeding pairs in the Lower 48
states and Alaska, with additional birds
in Canada and Mexico, and the sub-
species has reached or is approaching
recovery goals throughout North
America. Today, the Fish and Wildlife
Service is considering removing the
American peregrine falcon from the
Endangered Species List.
The restrictions placed on the use
of DDT and the protection afforded
by the Endangered Species Act almost
certainly saved the peregrine falcon
from extinction. A cleaner environment
and the success of reintroduction efforts
provide great promise for the peregrine
falcon's full recovery in North America.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
FISH A WILDUFE
-------
WILDLIFE
BIOLOGUE
Pacific Salmon
(Oncorhynchus spp.)
The upriver salmon migration is
one of nature's most exciting
dramas. But to the five species of
Pacific salmon (chinook, chum, coho,
pink, and sockeye), it is a long, strenu-
ous, desperate race against time, with
every obstacle taking its toll.
Pacific salmon belong to a group
called anadromous fish that includes
Atlantic salmon, sturgeon, lampreys,
shad, herring, sea-run cutthroat trout,
and steelhead trout. These species
hatch and live the first part of their lives
in fresh water, then migrate to the
ocean to spend their adult lives, which
may be as short as 6 months or as long
as 7 years. When they reach sexual
maturity, they return to the freshwater
stream of their origin to lay their eggs.
Pacific salmon make the round trip only
|>nce, but some Atlantic salmon may
repeat the cycle several times.
Migration between fresh and salt
water occurs during every season of the
year, depending on latitude and genetic
characteristics of the fish. Groups of fish
that migrate together are called runs or
stocks. Salmon spawn in virtually all
types of freshwater habitat, from inter-
tidal areas to high mountain streams.
Pacific salmon may swim hundreds,
even thousands, of miles to get back to
the stream where they hatched.
However, only a small percentage of
salmon live to reach their natal stream
or spawning grounds. Those males that
survive the trip are often gaunt,
with grotesquely humped backs,
hooked jaws, and battle-torn fins.
The females are swollen with a
pound or more of eggs. Both have
large white patches of bruised skin on
their backs and sides.
Since salmon do not feed once they
leave the ocean, some will die on the
~ray because they lack enough stored
ody fat to make the trip. Many will be
caught in fishermen's nets. Those that
evade the nets may have to swim
through polluted waters near
cities. Many must make their way
over power dams, leaping up
from one tiny pool to the next
along cement stairstep cascades
called /zsh ladders. In the tribu-
tary streams, waterfalls and rapids
are steep and swift enough to elimi-
nate all but the strongest. Otters,
eagles, and bears stalk the salmon in
shallow riffles. Once on the spawning
grounds, the fish battle each other:
females against females for places to
nest, males against males for available
females.
The female builds her nest, called a
redd, by agitating the bottom gravel
with her fins and tail, and bending her
body into a U shape first one way, then
the other. As soon as she has excavated
a depression, she settles onto it and
deposits her first batch of eggs, or roe.
The male then moves alongside and
deposits his sperm, called milt, over the
roe. The female rakes her tail back and
forth to cover the redd with loose
gravel. She then excavates her next
redd a short distance upstream.
The process continues until all the
roe and milt have been deposited. One
pair of salmon may have as many as
seven redds, with four or five being the
average. The salmon die within a few
days of spawning.
V ; v\ Vv:
\\ v V.-X
Pacific salmon may swim hundreds of miles to get
back to the stream wtiere they hatched to spawn.
The many obstacles the salmon face on this journey
are often evident by bruised skin, humped backs,
hooked jaws, and torn fins.
The translucent salmon eggs range in
color from pale yellowish-orange to
dark reddish-orange. The color varies
both by species and within species and
is determined by water temperature,
sediment composition, age, and other
factors. The eggs vary in size from the
tiny sockeye roe (average 1/4 inch or
5.6 mm) to the large chum roe (average
almost 1/2 inch or 8.3 mm).
Incubation time ranges from 5 to 10
weeks. The newly hatched fish are
called fry, or sometimes sac fry because
they continue to feed on the yolk sac
attached to their bellies. Depending on
water temperature, species, and other
factors, they may stay in the gravel for
several weeks before swimming up into
the open water of the stream, where
they feed on plankton and other tiny
aquatic organisms. By the time they
reach fingerling size (approximately 3
inches), most pink and chum salmon
have begun the long journey down-
stream and out to sea. Sockeye, coho,
and most chinook spend from 1 to 2
years in fresh water before heading out
to sea.
As the stream current carries the
young salmon tail-first to the ocean,
where they will spend the majority of
their lives, their bodies undergo physi-
cal and chemical changes to enable
them to survive in salt water.
Most adult Pacific salmon species
feed on aquatic insects and small fish.
However, sockeye are filter feeders.
They take in water full of plankton, and
-------
The largest of the Pacific salmon,
chinook (Oncorhynchus tshawytscha)
average about 24 pounds when they
return to their natal river to spawn,
most after 2 or 3 years at sea. The
chinook is the least .iDundant of the
Pacific salmon.
Chinook Salmon
Coho salmon (Oncorhynchus
kisutch), fourth in Pacific fishery
abundance, is the number one sport
fish. It spends only one winter at
sea, returning the next fall to spawn.
It averages about 10 pounds when'
full grown.
Sockeye salmon (Oncorhynchus
nerka) make up about 25 percent of
the West Coast catch, and chum
salmon (Oncorhynchus keta) make
up about 13 percent. Both follow
similar migration paths in the Pacific
and reach a common weight of
about 12 pounds before returning
to their natal river ,
to spawn.
Sockeye Salmon
Chum Salmon
Pink salmon (Oncorhynchus
gorbuscha), the smallest of the Pacific
salmon, average only about 3 to 5
pounds. However,, they make up
more than half the total West Coast
commercial catch. Pink salmon
seldom travel more than 150 miles
from the mouth of their natal river.
Pink Salmon
When salmon return to their home spawning grounds, the female selects a place to nest and digs a depres-
sion (called a redd) in the streambed gravel. She then deposits her first batch of eggs (roe) and the male
moves in to fertilize them, spreading a cloud of sperm (milt) over the roe.
as the water flows back out of their
mouths, specialized organs called gill
rakers act like strainers, holding the
plankton in to be swallowed.
Some species of Pacific salmon stay
within a few hundred miles of their
home river, while others disperse north,
south, west, or in the case of salmon
originating in Russian and Japanese
rivers and streams, east, into feeding
grounds in the Aleutian Islands and
other areas of the north Pacific. Chinook
salmon may travel as far as 2,500 miles
from their home stream and stay out at
sea 4 to 7 years. Pink salmon, on the
other hand, seldom range more than
150 miles from the mouth of their home
river or stream where they hatch in the
fall, and turn homeward in the spring,
sometimes traveling 45 miles per day to
reach their spawning grounds.
Pacific salmon encounter increasing
human-caused hazards in their migra-
tions to and from spawning grounds. All
salmonids require pure, well-oxygenated
cold water and are one of the first species
to suffer when water quality is degraded.
Many salmon stocks are seriously threat-
ened by what are called the "four H's":
Habitat destruction, Hydroelectric dams
on migratory rivers, over-Harvest of rare
stocks, and competition with Hatchery
fish. Some stocks are so severely reduced
that they have been listed as endangered
or threatened species under the
Endangered Species Act. Endangered
means they are likely to become extinct.
Threatened means they are likely to
become endangered in the near future.
The winter-run chinook salmon orig-
inating in California's Sacramento River
was listed as threatened in 1990, but
was reclassified to endangered in 1994-
In 1992, the Snake River stock of sock-
eye salmon was listed as endangered
wherever found. The spring-summer
and fall runs of chinook originating in
Idaho's Snake River were listed as
threatened in 1992. Others are being
considered for listing, including the
Columbia River (Washington) chinook
and Oregon Coast coho salmon.
A 1991 report by the American
Fisheries Society indicated that 214 of
about 400 stocks of salmon, steelhead,
and sea-run cutthroat trout in the
Northwest and California are at risk of
extinction. The report also indicated
that 106 are already extinct.
Primary listing and recovery respon-
sibilities for Pacific salmon belong to the
Department of Commerce's National
Marine Fisheries Service. The U.S. Fish
and Wildlife Service and other federal
and state agencies also have recovery
responsibilities.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1994
f—~—\
PUHAWUDUn
11VO
~U.S. GOVERNMENT PRINTING OFFICE. 1994-0-521-641
-------
This Species is Protected Under the
MARINE
MAMMAL
PROTECTION ACT OF 1972
POLAR BEAR
Ursus maritimus
The polar bear, or "Nanuuq," as
the Eskimos call it, lives only in
the Northern Hemisphere, on
the arctic ice cap, and spends most of its
time in coastal areas. Polar bears are
widely dispersed in Canada, extending
from the northern arctic islands south
to the Hudson Bay area. They are also
found in Greenland, on islands off the
coast of Norway, on the northern coast
of the former Soviet Union, and on the
northern and northwestern coasts of
Alaska in the United States.
Some polar bears may make exten-
sive north-south migrations as the pack
ice recedes northward in the spring and
advances southward in the fall. They
also may travel long distances during
the breeding season to find mates,
|gr in search of food.
female polar bears prepare large dens on
the mainlands or on sea ice where they will
give birth and spend winter. Usually two
cubs are born in December or January.
While the cubs are born blind,
hairless, and no bigger than
squirrels, they grow very
rapidly. Polar bear cubs
remain with their mother
for 2xh years.
The polar bear is the largest member
of the bear family, with the exception of
Alaska's Kodiak brown bears, which
equal polar bears in size. Males stand
from 8 to 11 feet tall and generally
weigh from 500 to 1,000 pounds, but
may weigh as much as 1,400 pounds.
Females usually stand 8 feet tall and
weigh 400 to 600 pounds, but may
reach 700 pounds. Part of the reason
the polar bear weighs so much is that
is'stores about a 4-inch layer of fat to
keep it warm.
w
sS.
/
, / /< ^
The polar bear has a longer, narrower
head and nose, and smaller ears, than
other bears.
Although the polar bear's coat
appears white, each individual hair is
actually a clear, hollow tube which
tunnels the heat of the sun's rays to
the bear's skin and helps it stay warm.
Some of the sun's rays bounce off the
fur, making the polar bear's coat appear
white. During the summer months,
adult bears mole, or gradually shed their
coats and grow new ones, which look
pure white. By the following spring,
the sunshine has caused their coats
to turn a yellowish shade. Polar bears
also sometimes may have a yellowish
shade to their coats caused by staining
from seal oils.
The polar bear's coat helps it blend
in with its snow-covered environment,
which is a useful hunting adaptation.
The polar bear's front legs appear
slightly bowl-legged and pigeon-toed,
and fur covers the bottoms of its paws.
These adaptations help the polar bear
keep them from slipping on ice.
Because the polar bear rarely eats
vegetation, it is considered a carnivore,
or meat-eater. The ringed seal is the
polar bear's primary prey. A polar bear
may stalk a seal by waiting quietly for
it to emerge from its blow hole or
"atluk," an opening seals make in
the ice allowing them to breathe
or climb out of the water to rest.
The polar bear will often have to
wait for hours for a seal to
emerge. Because the polar
bear's coat is camouflaged
against the whiteness of
the ice and snow, the seal
may not see the stalking
bear. Polar bears eat only
-------
Because its coat is camouflaged against the whiteness of the ice and snow, a polar bear may stalk a ringed
seal by waiting quietly for it to emerge from its blow hole, an opening seals make in the ice allowing them to
breathe or climb out of the water to rest. Polar bears eat only the seal's skin and fat, and the remaining meat
is an important food source for other animals of the Arctic, such as the Arctic fox.
the seal's skin and blubber, or fat, and
the remaining meat is an important
tood source for other animals of the
Arctic. For example, Arctic foxes feed
almost entirely on the remains of polar
bear kills during the winter.
Polar bears also prey on walrus,
but, because ot the walrus's ferocity and
size, bears are usually only successful
preying on the young. The carcasses
of whale, seal, and walrus are also
important food sources tor polar bears.
In fact, because ot their acute sense of
smell, polar bears can sense carcasses
from many miles away.
Polar bears can run quite swiftly,
but are most agile in the sea. They are
excellent swimmers, and can reach
speeds of up to 6 mph in the water.
They are good divers, too. When
being pursued by hunters in open
water, polar bears have been known
to escape by plunging 10 to 15 feet
below the surface and resurfacing a
good distance away. They also have
been seen swimming up to 100 miles
away from ice or land.
Polar bears reach breeding maturity
at 3 to 5 years of age. Males may travel
great distances in search ot female
mates. While breeding usually takes
place in April, like other bears, the
embryos may not implant (develop)
until the following year, depending on
whether the mother has had a stable
enough supply of food to sustain herself
as well as the developing cubs through
the winter.
In October and November, male
polar bears begin to head out on the
pack ice where they spend the winter.
Pregnant females, however, seek sites
on the mainland or on sea ice to dig
large dens in snow where they will give
birth and spend the winter. The temper-
ature inside the polar bear's den can be
up to 40 degrees warmer than outside.
Usually two cubs are born in December
or January. When the cubs first arrive,
they are blind, hairless, and no bigger
than squirrels. However, the cubs grow
rapidly from the rich milk provided by
their mother.
As soon as spring comes, the mother
bear leads her cubs to the coast along
the open sea, where seals and walrus are
abundant. The mother will fiercely
protect her cubs from any perceived
danger. The cubs remain with their
mother for 2Vi years. Because of this,
most adult female polar bears breed
only every third year.
Polar bears have traditionally played
an important role in the culture and
livelihood of Eskimos and other Native
people of the North. They depend on
the animals for food and clothing.
In the United States, polar bears are
a federally protected species under the
Marine Mammal Protection Act of
1972. This protection prohibits hunting
of polar bears by non-Natives and
established special conditions for the
importation of polar bears or their parts
and products into the United States.
EskimcR and other Alaska Natives are
allowed to harvest some polar bears for
subsistence and handicraft purposes.
The U.S. Fish and Wildlife Service is
the federal agency responsible for man-
aging polar bears under the Marine
Mammal Protection Act.
An international conservation agree-
ment for polar bears signed in 1976 by
the United States, the former Soviet
Union, Norway, Canada, and Denmark
(Greenland) also provides for coopera-
tive management of polar bears.
The Fish and Wildlife Service and
the National Biological Service work
together to monitor polar bears in
Alaska, where they number about
5,000, and study their behavior.
Cooperative efforts with Canada
involve monitoring polar bears in the
Beaufort Sea, and the agencies work
with the Russian government to moni-
tor the animals in the Chukchi Sea.
The Fish and Wildlife Service also
undertakes education and outreach
efforts to inform the public about how
polar bears can be protected from
over-harvest.
In Alaska, demands for oil, natural
gas, and other resources have led to
some conflicts between polar bears
and humans. A number ot protective
measures have been taken to reduce
human activities along the coast in
polar bear'denning areas. This is when
the animals are most sensitive to
outside disturbances. For example, oil
and gas pipelines and roads have been
routed to avoid these areas. The Fish
and Wildlife Service also provides
expertise to industries on how to
minimize conflicts with bears while
conducting their operations.
Today it is estimated that there are
28,000 polar bears worldwide. With
continued cooperative management,
these great marine mammals, and the
unique arctic environment on which
they depend, can be protected for
generations to come.
BlOLOGUE SERIES
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
-------
WILDLIFE
BIOLOGUE
American
BLACK BEAR
(Ursus americanus)
Perhaps no other animal has so
excited the human imagination as
the bear. References to bears are
found in literature, folk songs, legends,
mythology, fairy tales, and cartoons.
The American black bear inhabits
wooded and mountainous areas
throughout most of North America,
from Alaska to Florida, Canada to
Mexico.
The black bear is approximately .
5 feet long and varies in weight from
125 to 400 pounds. It has small eyes,
rounded ears, a long snout, a large body,
and a short tail. The shaggy hair varies
in color from white through chocolate
brown, cinnamon brown, and blonde to
black, but most black bears are indeed
black or a darker shade of brown.
While black bears are capable of
Planding and walking on their hind legs,
he usual posture is on all fours. The
black bear's characteristic shuffle results
from walking flat-footed, with the
hind legs slightly longer than the front
legs. Each paw has five strong, non-
retractable claws used for tearing,
digging, and climbing. One blow from
a powerful front paw is enough to kill
an adult deer. But in spite of their size
and strength, black bears are surpris-
ingly agile and careful in their
movements.
Although much of its historical habi-
tat has been destroyed by axe, plow, and
bulldozer, the highly intelligent black
bear has adapted and survived. Black
bears are opportunistic feeders, making
use of just about any available food
source. While they prefer berries, nuts,
grass, and other plants, they also eat
carrion, small animals, and fish.
When fall approaches, black bears
must eat large amounts of food in order
to gain enough weight to sustain them '
through their winter hibernation, when
they survive on their reserves of body
fat. During periods of relatively warm
weather, they may awaken and take
short excursions outside.
Black bears reach breeding maturity
at about 4 or 5 years of age, and breed
every 2 to 3 years. Black bears breed in
the spring, usually in May and June, but
the embryos do not begin to develop
until the mother dens in the fall to
hibernate through the winter months.
However, if food was scarce and the
mother has not gained enough fat to
sustain herself during hibernation as
well as produce cabs, the embryos do
not implant (develop).
Black bear cubs are generally born
in January or February. The blind cubs
weigh about 1/2 to 3/4 of a pound at
birth, and twins are most common. By
spring thaw, when the bears start leav-
ing their dens, the cubs are fur-balls of
energy, inquisitive and playful. They are
weaned between July and September
of their first year, and stay with the
mother through the first full winter.
They are usually independent by the
second winter.
Cub survival is totally dependent on
the skill of the mother in teaching her
cubs what to eat, where and how to
forage (find food). where to den, and
when and where to seek shelter from
heat or danger.
Except for breeding and raising
young, black bears are generally solitary
animals. They try to avoid humans and
are considered non-aggressive except
when injured, protecting their young,
or protecting themselves. Daily move-
ments are influenced greatly by temper-
ature and food availability. Bears usually
feed in the cool of the evening or early
morning. During the heat of the day,
they will seek shade in dense under-
brush. Home ranges are determined by
food types, abundance, and availability,
and can be as small as 1 square mile or
as great as 100 square miles.
The mother bear usually has two cubs. They stay
with the mother for about 1V2 years, learning what
to eat, where and how to forage, where to den, and
when and where to seek shelter from danger.
-------
Rugged terrain and dense shrubs
provide escape cover and den sites for
black bears. Black bears also seek den
sites under fallen trees, in hollow trees
or caves, or in previously occupied dens.
They are excellent tree climbers, and
will use trees to escape from danger.
When possible, black bears will choose
streams with dense bankside shrubbery
as travel corridors to and from food
sources.
The black bear's primary predator is
man. During the American colonial
period and after, black bears were
hunted almost to extinction on the East
Coast. Many states paid bounties for
bears, and as late as 1977, there was still
a bounty law on the books in Highland
County, Virginia (even though it had
been more than 30 years since the last
bounty was paid).
In addition to the historical uncon-
trolled harvest encouraged by bounties,
black bear numbers were reduced
by timber harvesting and burning,
clearing land for crops and grazing,
and other encroachments associated
with an expanding civilization. By
the early 1900s, the once-numerous
black bear could be found only in
remote mountainous areas of Georgia,
Kentucky, Maryland, North Carolina,
Pennsylvania, Tennessee, Virginia,
and West Virginia.
As small farms failed and people
moved back to the cities, bear habitat
As winter approaches, black bears seek den
sites under fallen trees, in hollow trees or
caves, or in previously occupied dens
where they hibernate through most of
the winter.
slowly recovered and popula-
tions started to increase. The
early establishment of national
parks and national forests in the East
helped save the black bear in that
region.
Although attitudes concerning bears
and other game animals were changing
and wildlife laws protecting black bears
and other animals were being enacted,
the understanding of black bear biology,
behavior, and habitat requirements
remained incomplete. It wasn't until the
1960s that methods and techniques
for safely trapping, immobilizing, and
handling such powerful animals were
developed. More has been learned
about the habits and needs of the black
bear in the last 30 years than in all of
recorded history.
Thanks to this new knowledge and
understanding, and better management,
black bear populations have recovered
significantly. However, they are not
out of danger.
Today, a major threat to the
American black bear is widespread
poaching, or illegal killing, to supply
Asian markets with bear gall bladders
and paws, considered to have medicinal
mf y.p'f. 1
m-s . - w /
: v/ \. y »¦ ><, ¦ ¦
y. ,v-
-.m
The black bear inhabits wooded and mountainous areas throughout most of North America,
from Alaska to Florida, Canada to Mexico.
value in China, Japan, and Korea. The
demand for these parts also affects griz-
zly and polar bears. The Convention on
International Trade in Endangered
Species of Wild Fauna and Flora (also
known as CITES), a treaty among more
than 120 nations, provides measures to
curb illegal trade in wildlife and wildlife
products across international bound-
aries, helping to protect the black bear
from poaching. The U.S. Fish and
Wildlife Service is the agency responsi-
ble for the U.S. government's compli-
ance with the CITES treaty.
Two subspecies found in the south-
eastern U.S., the Louisiana black bear
and the Florida black bear, still face
decline mainly due to habitat loss and
degradation.
In 1992, the U.S. Fish and Wildlife
Service listed the Louisiana black bear,
as a threatened species under the
Endangered Species Act, meaning it
could become in danger of extinction
throughout all or a significant portion
of its range in the foreseeable future.
The American black bear also is pro-
tected by the Act in the affected states
(Louisiana, Mississippi, and Texas) due
to its close resemblance to this sub-
species. The Florida black bear is a can-
didate for protection of the Endangered
Species Act. The U.S. Fish and Wildlife
Service monitors the animal's status
and takes appropriate measures to
ensure its conservation.
Illustrations by Robert Savannah
BiOLOGUE Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1994
-------
WILDLIFE
BIOLOGUE
American
buffalo
Bison bison
It is believed chat buffalo, or bison,
crossed over,a land bridge that once
connected the Asian and North
American continents. Through the
centuries buffalo slowly moved south-
ward, eventually reaching as far south
as Mexico and as far east as the Atlantic
Coast, extending south to Florida. But
the largest herds were found on the
plains and prairies from the Rocky
Mountains east to the Mississippi
River, and from Great Slave Lake in
Canada to Texas.
Because the great herds were nearly
gone before any organized attempts
were made to survey populations, we
may never know just how many buffalo
once roamed North America, although
estimates range from 30 to 75 million.
"The moving multitude...darkened the
»'hole plains," wrote Lewis and Clark,
'who encountered a herd at South
Dakota's White River in 1806.
Although the buffalo's size and
color, which ranges from light to dark
brown, vary in different areas of the
country, experts generally agree that all
American buffalo belong to the same
species. The differences in appearance
probably result from the variety of
environments in which they live.
Like their close relatives, domestic
cattle and sheep, buffalo are cloven-
hooved. Both males and females have a
single set of hollow, curved horns. The
male buffalo, called bulls, are immense,
often weighing a ton or more and stand-
ing 5 to 6 feet high at the shoulders.
The huge head and great hump covered
with dark brown wooly hair contrast
sharply with the relatively small hips.
The females, or cows, are not as mas-
sive. Despite their great size and bulki-
ness, buffalo have amazing mobility,
speed, and agility, and are able to sprint
at speeds of up to 30 mph.
In the spring, buffalo begin to shed
their heavy winter coats, and soon
their hair hangs in tatters. To hasten
shedding and possibly to relieve their
itching skin, buffalo rub against large
stones and trees. By late spring, the
only remaining long hairs are on the
head, forelegs, and hump. To escape
the torment of attacking insects,
buffalo wallow in dust or sand.
1
With the arrival of the breeding
season in mid-to late summer, the herds
become restless. The bulls, aloof most of
the year, now drift among the cows and
calves. Noticeably quiet at other times,
the bulls bellow hoarsely and become
quarrelsome. Many fights occur over
females, and the combatants, with
lowered heads, paw the earth defiantly.
Cows give birth usually every year
to one tawny to buff-colored calf.
Most of the calves are born between
the middle of April and end of May,
but some arrive as late as October. At
birth, the calves have only a faint sug-
gestion of the hump they will develop
later. Buffalo begin grazing (primarily
on grasses) while still very young,
although some may continue to nurse
until they are nearly a year old. Buffalo
may live to be about 20 years of age.
By 1800, the small buffalo herds
east of the Mississippi River were
gone. Buffalo may have been killed to
protect livestock and farmlands in
that region. With westward expansion
of the American frontier, systematic
reduction of the plains herds began
around 1830, when buffalo hunting
became the chief industry of the plains.
Organized groups of hunters killed
buffalo for hides and meat, often
killing up to 250 buffalo a day.
Unfortunately, many people at the
time also wanted to eradicate buffalo as
a way to take away the livelihood and
well-being of Native Americans. Native
American tribes depended on the
buffalo's meat and hides, and many still
today believe the animal has special
Although estimates indicate there were between
30 to 75 million buffalo in North America at one
time, the great herds were reduced to less than
300 animals by 1900. Today, buffalo populations
are strong once again, with an estimated 200,000
roaming the plains, many at National Parks and
National Wildlife Refuges.
-------
Usually solitary, male buffalo join female herds during the mating season, often quarreling with other males over mates. While these males are only sparring, in a
serious battle the bulls' behavior would be more aggressive.
spiritual and healing powers, making it
an important part of their culture.
The construction ot the railroads
across the plains further hastened
the depletion ot buffalo populations.
Hunting from train windows was adver-
tised widely and passengers shot them
as the buffalo raced beside the trains.
By 1883 both the northern and the
southern herds had been destroyed.
Less than 300 wild animals remained
in the U.S. and Canada by the turn of
the century out of the millions that
once lived there.
Conservation of the buffalo came
slowly. In May 1894, Congress enacted
a law making buffalo hunting in
Yellowstone National Park illegal.
Eight years later, money was appropri-
ated to purchase 21 buffalo from private
herds to build up the Yellowstone herd.
With adequate protection, this herd
has steadily increased until it numbers
almost 4,000 animals today.
Thousands of buffalo also inhabit
the National Bison Range in the
Flathead Valley of Montana, the
Wichita Mountains National Wildlife i
Refuge in southwest Oklahoma, the
Fort Niobrara National Wildlife Refuge
in northern Nebraska, and the Sullys
Hill National Wildlife Refuge in north-
western North Dakota.
. Many other private herds have
boosted the buffalo's overall population
over the years as well. While the pre-
sent herds, numbering about 200,000
buffalo in all, are not as large as the
great herds that once ranged the North
American continent, they are large
enough to ensure the continued
well-being of the American buffalo
for generations to come.
Biologue Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
Male buffalo often weigh a ton or more and stand 5 to 6 feet high at the shoulders. The huge head and great
hump covered with dark brown wooly hair contrast sharply with the relatively small hips. Despite their great
size and bulkiness, buffalo have amazing mobility, speed, and agility.
-------
YOU ASKED ABOUT HUNTING
Hunting wild animals has been a
way ot lite tor mankind
throughout history. The hunt-
in" ot deer, bear, ducks, and other ani-
mals has provided people with food,
clothing, and shelter tor centuries.
Without the meat and skins provided
by wild animals, the American colonists
would not have been able to survive the
difficult, early years in this country. The
valuable hides ot turbearers that were
hunted and trapped, such as beaver,
fox, otter, lynx, and pine marten, were
critical to the survival and livelihood ot
many settlers in the New World.
Today, some people believe that
hunting is wrong because killing and
eating wild animals is no longer neces-
sary for survival. They point out that
.plenty ot tood is available in supermar-
kets. But millions ot Americans con-
tinue to hunt. Some people hunt to teed
their families, and many do so because
they enjoy the tradition, the outdoor
experience, and the sense ot being a
part ot nature.
Hunting today is strictly regulated by
state and federal governments. Wildlife
managers use hunting as a tool to help
conserve and manage wildlife habitat
and populations. In addition, hunting
also provides billions of dollars annually
to the economy.
Personal Enjoyment
There are many personal
rewards that give hunting a
special character, place, and
value as part ot America's
heritage. Hunting is a
unique way for an indi-
vidual to interact with
nature, and helps a
person learn about the £
outdoors. Hunting is
Lan outdoor activity that
can be enjoyed together by
husbands and wives, parents
and children.
New friendships and a sense of good
sportsmanship can arise from a day
spent hunting. It also provides an
opportunity to engage in good physical
exercise and refresh one's mind and
spirits. Many people consider game,
such as a wild goose, rabbit, pheasant,
or deer, to be a delicacy.
Wildlife Management
Hunting is also used as a tool to help
manage wildlife. For example, deer can
become so numerous that there is not
enough food for all of them, especially
during the winter. Without hunting to
reduce their numbers, many would
starve or become sick. A herd of hungry
deer can quickly strip the vegetation
that provides them and other animals
with tood and cover.
Too many deer can also lead to
auto accidents when they cross high-
ways in search of food. Deer may also
damage property by eating com or fruit
trees because there is not enough
natural vegetation for them to eat
in the forest.
Hunting deer, bear, ducks, and other animals
has provided people with food, clothing, and
shelter for centuries.
Outbreaks of disease catv
occur when wild animals become
too plentiful. For instance-, small carni-
vores such as raccoons and toxes are
susceptible to rabies and distemper,
which can be transmitted to cats, dogs,
farm animals, and even people.
Benefits to Society
Hunters have been the backbone of
wildlife conservation programs in the
United States. Because hunters spend
time in the outdoors and learn about
animals and their habitats, they are
strong supporters ot programs to help
conserve wildlife and the environment.
Many people do not realize that
hunters also provide a major source of
funding tor wildlife conservation.
Hunting license fees support the man-
agement, law enforcement, research,
and educational programs ot state
wildlife agencies.
: *•**
-------
Federal excise taxes on guns, ammu-
nition, and archery equipment provide
more than S100 million each year.
These funds are annually distributed to
the states by the U.S. Fish and Wildlife
Service to support state wildlife conser-
vation and hunter education programs.
Federal Migratory Bird Hunting and
Conservation Stamps (commonly called
Duck Stamps), purchased mostly by
waterfowl hunters, provide about $20
million annually to buy wetlands habi-
tat for the National Wildlife Refuge
System. Since 1934, more than 4-2 mil-
lion acres of refuge lands have been
acquired with Duck Stamp revenues.
Hunting also supports many busi-
nesses and provides an extra source of -
income for farmers who lease their
Because hunters spend time in the outdoors and
learn atn -it animals and their habitats, they
are strong supporters of programs to help
conserve wildlife and
the environment. C
land to hunters. According to a survey
by the U.S. Fish and Wildlife Service, in
1991 hunters spent nearly $9 billion on
transportation, food, lodging, and spe-
cial equipment.
Hunting: A Personal Choice
Many people oppose hunting
because they think it causes animals to
become endangered. Large-scale,
uncontrolled commercial or "market"
hunting that occurred in this country in
the 19th and early 20th centuries did
imperil animals like the buffalo.
Today, hunting regulations
are set each year by
federal and state
wildlife agencies
--Mm-'fi
1
Federal Duck Stamps, purchased mostly by
waterfowl hunters, provide about S20 million
annually to buy wetlands habitat for the National
Wildlife Refuge System. To date, more than
S450 million in Duck Stamp revenues has been
used to purchase more than 4.2 million acres
of wetlands for the refuge system.
and are enforced by conservation offi-
cers, often called game wardens. In addi-
tion, biologists study hunted species,
such as waterfowl, and if their numbers
become too low tor any reason, hunting
is further restricted or even prohibited.
In general, hunting regulations are
designed to ensure hunters' harvests are
compatible with each game species'
ability to sustain viable numbers.
Wildlife biologists today agree that
legal hunting is not a threat to our
wildlife. The real threat to wildlife is
destruction of habitat —forests, wet-
lands, and other wild places animals
need for food and cover. No species can
survive if it has no place to feed, rest,
and rear its young.
Some people would never dream of
killing a wild animal. Others believe
that hunting is a natural part of the
human tradition. Whether or not to
hunt is a personal decision. But if
hunters and nonhunters will respect
each other's choices and work together
on behalf of wildlife, we can preserve
America's rich natural heritage for
future generations to enjoy.
Illustrations by Robert Savannah
BioLQGUE Series
Prepared by:
U.S. Department of the Interior
U.S. Fish and Wildlife Service
1995
r ^
FISH * wii.di.ikv:
SEHVK'K
GPO: 1995 -
163-651 QL 3
------- |