Current Developments in Natural Resources: Selection of Federal Wildlife Law Presented by Alan M. Glen

A Few Federal Wildlife Laws Potentially Affecting

Transportation Endangered Species Act (ESA) Migratory Bird Treaty Act (MBTA) Bald and Golden Eagle Protection Act

(BGEPA)

ESA Overview

Section 4 - Listing of Species and Designation of Critical Habitat Section 9 - Prohibition of “Take” of Listed

Species Section 7 - Federal Agency Consultations Section 10 - Incidental Take Permits (Habitat

Conservation Plans) Section 11 – Enforcement (citizens may sue)

ESA Overview – Resources Consultation Handbook (FWS & NMFS)

– http://www.nmfs.noaa.gov/pr/pdfs/laws/esa_section7_handbook.pdf

2013 Corps ESA memorandum – http://planning.usace.army.mil/toolbox/library/MemosandLetters/13Jun11-ESA.pdf

Draft HCP Handbook (FWS & NMFS) – https://www.fws.gov/endangered/esa-library/pdf/HCP_Handbook-Draft.pdf

Draft Compensatory Mitigation Policy – http://www.regulations.gov/document?D=FWS-HQ-ES-2015-0165-0001

FHWA Environmental Toolkit – https://www.environment.fhwa.dot.gov/guidebook/results.asp?selSub=28

TxDOT Ecological Resources Toolkit – http://www.txdot.gov/inside-txdot/division/environmental/compliance-toolkits/ecological-

resources.html

Agency Websites – FWS: http://www.fws.gov/endangered/ – NMFS: http://www.nmfs.noaa.gov/pr/laws/esa/

ESA Overview – Section 9: “Taking” Listed Species

Section 9(a)(1)(B): Prohibits take of endangered fish and wildlife species.

– By regulation, USFWS extended take prohibition to most threatened fish and wildlife species.

“Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

– By regulation, USFWS defined “harm” to include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

ESA Overview – Two ways to obtain authorization for “taking” listed species

1. Section 7 consultations (federal). 2. Section 10(a) incidental take permits

(everything else).

ESA Overview - Section 7(a)(2) of the ESA

Federal agencies must consult with USFWS to ensure actions authorized, funded, or carried out by those agencies is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat.

– Pursuant to the Surface Transportation Project Delivery Program, FHWA has assigned most of its NEPA and other federal environmental review responsibilities to TxDOT.

– Except for state-only projects, TxDOT is subject to ESA section 7. State-only projects may trigger section 7 where federal funding or approvals are involved.

Consultations have lower trigger (may affect) than HCPs (take).

Consultations must conclude within 135 days (sort of).

Consultations can authorize take through an incidental take statement, but scope of the authorization can be limited.

ESA Overview – Scope of Review on Linear Projects: The Enbridge Conundrum

The D.C. Circuit Court of Appeals held recently that a USFWS biological opinion and incidental take statement was binding only where the federal action agency (e.g., the Corps) takes jurisdiction. Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015).

Thus, where a state-only linear project (e.g., highway) requires a discreet federal approval (e.g., verification of one or more crossings of WUS), it is possible that any incidental take statement issued by USFWS in connection with that project may apply only in the vicinity of the crossing(s), and not provide section 9 authorization for the entire project.

So, even after consultation, a state-only project may still require some level of incidental take authorization, such as through an ITP.

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ESA Overview – Incidental Take Permits (Section 10(a))

Section 10(a) requires USFWS to issue ITPs where an applicant submits an HCP that meets the requirements established by section 10, including: Showing that the applicant will minimize and mitigate the

impacts of the proposed take to the maximum extent practicable; and

Ensuring an adequate funding plan.

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ESA Overview – Consultations vs. HCPs

Consultations have lower trigger (may affect) than HCPs (take). Consultations require only minimization of take; HCPs

require minimization and mitigation to the maximum extent practicable. HCPs generally have longer defined terms than

biological opinions. HCPs can provide “no surprises” assurances for

covered species. No regulatory timeframes for HCPs; consultation is

135 (sort of).

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MBTA Overview Enacted in 1918. Prohibits take of protected birds. Covers virtually all bird species in the U.S. Strict liability statute.

– Unclear whether MBTA extends to “incidental” take.

– Three Circuits (5th, 8th, and 9th) say no.

– Two Circuits (2nd and 10th) say yes.

Currently ~ 1,027 bird species protected. ~8% also protected by the ESA. No permitting scheme or suggestion of permitting

mechanism in the statute. No provision allowing third parties to enforce the statute.

But D.C. Circuit has held that ENGOs can enforce against federal agencies through the APA. Humane Soc’y of the U.S. v. Glickman, 217 F.3d 883 (D.C. Cir. 2000).

BGEPA Overview Enacted in 1940. Makes it unlawful to knowingly, or with wanton disregard for the

consequences, take bald and golden eagles. Take definition notably includes “disturb,” which is defined by

regulation to mean “[t]o agitate or bother” an eagle to the point it causes or is likely to cause injury, decrease in productivity, or nest abandonment.

USFWS issued “Eagle Rule” in 2009 providing a permitting scheme for incidental take of eagles.

USFWS recently proposed revamp of 2009 Eagle Rule (discussed later).

Evolving Issues Under the ESA: Petitions and Lawsuits

Various ENGOs make a living by petitioning and/or suing USFWS to list species or designate critical habitat. Other groups have petitioned USFWS to limit the agency's authority under the ESA.

Some recent petitions and lawsuits of interest to Texas that currently sit with USFWS include:

– Petition to list the tri-colored bat (Center for Biological Diversity). Loss of habitat cited as one reason for the species' decline. http://www.biologicaldiversity.org/species/mammals/tricolored_bat/pdfs/TricoloredBatPetition_06-14-2016.pdf

– Positive 90-day Finding: Petition to Delist American Burying Beetle. https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05699.pdf

– Positive 90-day Finding: Petition to Delist Southwestern Willow Flycatcher. https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05699.pdf

– Negative 90-day Finding: Petition to List Sprague’s Pipit. https://www.gpo.gov/fdsys/pkg/FR-2016-04-05/pdf/2016-07809.pdf

– Positive 90-day Finding: Petition to List Leoncita False Foxglove. https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05699.pdf

– Positive 90-day Finding: Petition to List Rio Grande Chub. https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05699.pdf

– Delisted: Lesser Prairie Chicken (July 2016). https://www.gpo.gov/fdsys/pkg/FR-2016-07-20/pdf/2016-17149.pdf

– Lawsuit challenging negative 90-day finding on petition to Delist Bone Cave Harvestman.

– Lawsuit challenging USFWS’ failure to make timely 12-month findings on petition to list 69 species, many of which occur in Texas (e.g., Eurycea salamanders, karst invertebrates, aquatics, and plants). Proceedings stayed until March 2017.

Evolving Issues Under the ESA: Petitions and Lawsuits (cont.)

Evolving Issues Under the ESA: Petition to Repeal Take Regulation

In August, the Pacific Legal Foundation and Washington Cattlemen's Association filed a petition with USFWS requesting the agency repeal its regulation extending the take prohibition to most species listed as threatened. It does not appear USFWS has made any findings with respect to the petition. http://www.pacificlegal.org/file/Signed-NFIB-Petition-1-1502.pdf

Evolving Issues Under the ESA: Proposed Changes to Regulations and Guidance

In the past year, USFWS has published numerous proposals to revise ESA-related regulations and guidance. While some of these changes are administrative in nature, others potentially have far-reaching consequences. Some of these changes include:

– Proposed revisions to listing petition requirements – Revisions to rules governing critical habitat designation – Proposed revisions to the HCP Handbook – Proposed revisions to USFWS’ compensatory mitigation

policy

Evolving Issues Under the ESA: Proposed Changes to Regulations and Guidance (cont.)

Proposed Revisions to Listing Petition Requirements https://www.gpo.gov/fdsys/pkg/FR-2016-04-21/pdf/2016-09200.pdf

– Overall, the proposed regulation would streamline the petition process. However, some problems remain. For example, USFWS impermissibly limits the information considered only to "new information," rather than the current "substantial scientific or commercial information" standard, which could prevent full consideration of petitions presenting new analyses or interpretations of previously considered information.

Evolving Issues Under the ESA: Proposed Changes to Regulations and Guidance (cont.)

Revisions to Rules Governing Critical Habitat Designation (February 2016) https://www.fws.gov/endangered/improving_ESA/pdf/Designating_Critical_Habitat-2016-02680-02112015.pdf

– Significantly, the new rule gives USFWS the freedom to designate as critical habitat that which currently is unoccupied habitat as well as degraded areas that may serve a purpose in the future if such areas are restored.

– Revision of definition of “destruction or adverse modification” to eliminate several items not defined elsewhere and to point out that the revised rule does not create an affirmative conservation requirement or mandate for recovery with respect to critical habitat.

– In June, the Fifth Circuit upheld USFWS’ designation of a critical habitat unit for the dusky gopher frog that was unoccupied. The court’s opinion, however, was based on the old regulations.

Evolving Issues Under the ESA: Proposed Changes to HCP Handbook

Draft released on June 28th. (81 Fed. Reg. 41,986). Public comment period closed on August 29th. https://www.fws.gov/endangered/esa-library/pdf/HCP_Handbook-Draft.pdf

– Revisions make worse what was already a complex, time-consuming, and expensive process.

– Numerous industry groups and ENGOs have filed comments against many of the revisions.

Proposed Revisions to the HCP Handbook: Big Picture Problems

Assumes avoidance is a required consideration rather than a voluntary part of project design.

Applies sequencing approach to the minimization and mitigation standard, requiring an applicant to minimize impacts of the taking to the maximum extent practicable before even considering mitigation.

Recommends a "net gain" approach to the conservation program and appears to require the conservation program attain a minimum of "no net loss.”

Requires HCPs address climate change, but unclear on how such planning will be integrated into permit issuance criteria of ESA section 10(a)(2)(B).

Assumes NHPA applies to HCPs. Appears to require intra-USFWS consultation on the use of

pesticides in an HCP.

Proposed Revisions to HCP Handbook: A Roadblock for State-only Transportation Projects?

Take avoidance may not be practicable in a transportation context (considerations of ROW acquisition, public funding, and safety, to name but a few).

Sequencing approach to minimization and mitigation could increase significantly the cost of ESA compliance.

The same goes for the preference for net gain and no net loss. Integrating NHPA and pesticide considerations to the

consultation process on HCPs could subject agencies to a level of informational and analytical demand likely unnecessary for typical projects. This is particularly true with respect to pesticides.

It is likely the soon-to-be-released Consultation Handbook will have the same issues potentially affecting a far greater number of transportation projects than the HCP Handbook.

Evolving Issues Under the ESA: Proposed Revisions to Compensatory

Mitigation Policy Published September 2nd. (81 Fed. Reg. 61,031). Comment

period closes on October 17th. https://www.gpo.gov/fdsys/pkg/FR-2016-09-02/pdf/2016-20757.pdf

We are still reviewing this policy and are preparing comments on behalf of several different groups. In our review to date, we have found the following problems:

– USFWS strongly encourages compensatory mitigation in the context of section 7 consultations.

– USFWS adopts avoidance as a conservation measure for HCPs.

– Indicates the new policy may apply to amendments of HCPs, conservation banking agreements, and other ESA-related documents.

Other ESA-related News: Revisions to Civil Penalties

Interim Rule published by USFWS increased civil penalties for ESA violations pursuant to requirements under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Improvements Act), which requires federal agencies to publish rules adjusting statutory civil monetary penalties for inflation in accordance with a formula specified by that Act. (81 Fed. Reg. 41,862 (June 28, 2016)). https://www.federalregister.gov/documents/2016/06/28/2016-15268/civil-penalties-inflation-adjustments-for-civil-monetary-penalties

Provides for initial "catch up" adjustments followed by subsequent annual adjustments for inflation.

Civil Penalties under ESA now stand at: – $49,467 for knowing violation of section 9 violations – $23,744 for knowing violations of other ESA provision – $1,250 for “other” violations

Evolving Issues Under the MBTA USFWS working on regulations that would prohibit

unauthorized incidental take. We understand the regulations will also include an incidental take permitting program. No vicarious liability or affirmative duty to prevent violation

of MBTA for federal agencies. Protect Our Communities Foundation v. Jewell, No. 14-55842, 14-55666 (9th Cir. June 7, 2016).

– Plaintiffs: Bureau of Land Management (BLM) violated MBTA by granting ROW to private company to develop and operate a wind energy facility and, therefore, was: complicit in future conduct of the wind development; and should have conditioned ROW approval on wind developer’s compliance with MBTA.

– Court: MBTA does not contemplate vicarious liability for agencies acting in a purely regulatory capacity where those actions do not directly or proximately cause take of migratory birds. Agencies do not have affirmative duty to guarantee a grantee’s compliance with MBTA or prevent future unlawful action.

Evolving Issues Under BGEPA: Proposed Revisions to Incidental Take Permits

and Permits Authorizing Take of Nests

In May, USFWS proposed various revisions to its BGEPA permits. Comment period closed in early July. https://www.federalregister.gov/documents/2016/05/06/2016-10542/eagle-permits-revisions-to-regulations-for-eagle-incidental-take-and-take-of-eagle-nests

Most of the changes are positive: – Relaxes issuance standard from "unavoidable" to "cannot

practicably be avoided.” – Allows treatment of ESA-listed species in section 7 consultations

conducted in connection with issuance of BGEPA permits. – Allows minimal level of compensatory mitigation when eagles "come

to the project" to build nests. Some improvements still could be made. Various groups have

weighed in. We do not know when USFWS will publish a final rule.

Other BGEPA-related News: Revisions to Civil Penalties

Interim Rule published by USFWS pursuant to the Improvements Act increased civil penalties for BGEPA violations from $5,000 to $12,500. 81 Fed. Reg. 41,862 (June 28, 2016).

Fixing America's Surface Transportation Act (FAST Act)

Codifies various Obama Administration initiatives to expedite federal decision-making through greater efficiency, transparency, and the development of BMPs. http://www.fhwa.dot.gov/fastact/

Some notable concepts: – Creates new category of "covered projects" potentially

subject to NEPA. – Places limitations on judicial review. – Plaintiffs must have filed comments during NEPA review

process sufficient to put the lead agency on notice of the issues.

– Creates alternative means to comply with 4(f): DOT can use NEPA and section 106 to comply with required 4(f) review.

What do Developments Mean For Transportation?

USFWS furiously revising regulations, policy, and guidance, often under auspices of streamlining. Changes to existing frameworks may have the

opposite effect, however, and may not have the benefit of existing jurisprudence reigning in the reach of USFWS. Some changes could be costly for regulated industry

(Compensatory Mitigation Policy, HCP Handbook). Other changes could, in fact, make compliance easier

(BGEPA Regulations).

Alan M. Glen Nossaman LLP 816 Congress Ave., Ste. 970 Austin, Texas 78701 Phone: (512) 651-0660 Fax: (512) 651-0770 Email: aglen@nossaman.com

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