Endangered Species: Coming Soon To A Project Near

You ACC Environmental & Sustainability Committee

W. Parker Moore Beveridge & Diamond, P.C.

(202) 789-6028 / pmoore@bdlaw.com

March 13, 2014

Endangered Species Act - Background

•  16 U.S.C. §§ 1531-1544 •  Goal – conserve T&E species + critical habitat •  Designed to protect imperiled species

–  List species as threatened or endangered –  Designate critical habitat –  Prohibit taking listed species –  Protect critical habitat

Species Listing/CH Designation

Listing: ESA’s protections apply to “listed” species •  Endangered – “in danger of extinction throughout all or a

significant portion of its range” 16 U.S.C. § 1532(6) •  Threatened – “likely to become an endangered species within the

foreseeable future throughout all or a significant portion of its range” – 16 U.S.C. § 1532(20)

Critical Habitat: “specific areas within the geographical area occupied by the species . . . essential to the conservation of the species and . . . which may require special management considerations or protection.” – 16 U.S.C. § 1532(5)

“Take” Prohibition

•  No “take” of threatened/endangered wildlife species –  Take - to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,

or collect, or attempt to engage in any such activity

•  Harm - act “which actually kills or injures wildlife,” including “significant habitat modification or degradation” that actually kills/injures wildlife by “significantly impairing essential behavioral patterns including breeding, feeding or sheltering” – 50 C.F.R. § 17.3

•  Harass - “intentional or negligent act or omission which creates the

likelihood of injury to wildlife by annoying it to such an extent as to significantly impair normal behavioral patterns including breeding, feeding or sheltering.” – 50 C.F.R. § 17.3

“Take” Prohibition

•  Civil and criminal penalties for unlawful take –  Criminal - endangered species / threatened species

•  $100,000 / $25,000 per individual

•  $200,000 / $25,000 per organization

•  Up to 1 year / 6 months imprisonment

–  Civil - endangered species / threatened species •  Knowingly - $25,000 / $12,000

•  Strict liability - $500

•  Permit/license, property forfeitures

•  Injunctions

So What??

•  CBD/WildEarth Guardians Settlement –  Many lawsuits vs. FWS demanding species listing –  Resolved in comprehensive settlement of suits

–  Listing decisions for 757!!! species by 2018

Will This Affect Me?

If your project is located here, YES

Will This Affect Me? 2011 Proposals

California golden trout, Lake Sammamish kokanee salmon, black-footed albatross, cactus ferruginous pygmy owl, western gull-billed tern, dusky tree vole, Alabama pearlshell, Choctaw bean, coquí llanero, fuzzy pigtoe, Mohave ground squirrel, Mojave fringe-toed lizard, narrow pigtoe, Oklahoma grass pink, Ozark chinquapin, round ebonyshell, San Bernardino springsnail, southern kidneyshell, southern sandshell, tapered pigtoe, Tehachapi slender salamander, Three Forks springsnail, Smokies snowfly, smooth mudalia, smooth-barked St. John’s wort, snuffbox, South Branch Valley cave beetle, South Florida rainbow snake, Southeast Nevada pyrg, southern Duckwater pyrg, southern elktoe, southern kidneyshell, southern lance, southern meadowrue, southern racemose goldenrod, southern sandshell, southern snaketail, southern steptoe pyrg, spathulate seedbox, speckled burrowing crayfish, spectaclecase, spider cave crayfish, spider elimia, spiny riversnail, spiny scale crayfish

2012 Proposals Mexican gray wolf, Gunnison sage grouse, spring pygmy sunfish, streaked horned lark, Jemez Mountain salamander, Jollyville Plateau salamander, Miami blue butterfly, Austin blind salamander, coral pink sand dunes tiger beetle, Florida semaphore cactus, Georgetown salamander, Hat Creek pebblesnail, aboriginal prickly apple, Acuna cactus, basalt juga, Big Warm Spring pyrg, brush prairie pocket gopher, canary duskysnail, Cape Sable thoroughwort, cinnamon juga, Columbia duskysnail, diamond darter, Diamond Y spring snail, diminutive amphipod, diminutive pebblesnail, Duckwater pyrg, Duckwater Warm Springs pyrg, Fickeisen Plains cactus, Florida bonneted bat, fluted kidneyshell, Gierisch mallow, Gonzales springsnail, Goose Valley pebblesnail, grotto sculpin, knobby ram’s horn, Lemmon’s fleabane, lesser prairie chicken, Locke’s pyrg, Mardon skipper butterfly, masked duskysnail, Mt. Charleston blue butterfly, Neosho mucket, nerite pebblesnail, nugget pebblesnail, Olympia pocket gopher, Olympic pocket gopher, Phantom Lake cave snail, Phantom springsnail, Potem pebblesnail, rabbitsfoot, rayed bean, Roy Prairie pocket gopher, Salado salamander, Shasta Springs pebblesnail, sheepnose mussel, Shelton pocket gopher, slabside pearlymussel, southern Duckwater pyrg, snuffbox, spectaclecase pearly mussel, Tacoma pocket gopher, tall pebblesnail, Taylor’s checkerspot butterfly, Tenino pocket gopher, Umtanum desert buckwheat, Wekiu bug, White Bluffs bladderpod, Yelm pocket gopher, swamp buckthorn, Sykora’s hydroptila caddisfly, tall pebblesnail, Tallapoosa orb, tapered pigtoe, Tehamana chaparral, Tennessee cave crayfish, Tennessee clubshell, Tennessee clubtail, Tennessee forestfly, Tennessee heelsplitter, Tennessee pigtoe, Tennessee pondweed, Texas emerald, Texas screwstem, Texas trillium, thin-wall quillwort, Thomas’ cave beetle, Thorne’s beakrush, three-tooth triaenodes caddisfly, tidewater amphipod, Tombigbee Riverlet crayfish, trispot darter, Tuscumbia darter, umbilicate pebblesnail, variable-leaved Indian plantain, Virginia stone, Waccamaw fatmucket, walnut elimia, Warrior darter, Warrior pigtoe, water stitchwort, Wekiwa hydrobe snail, Wekiwa siltsnail, West Florida cow lily, western chicken turtle, western fanshell, Westfall’s clubtail, West’s flax, Wherry’s sweet pitcherplant, White River Valley pyrg, winter quillwort, Wintu sideband, wire-leaved dropseed, Woodville Karst cave crayfish, Yadkin River goldenrod, Yalobusha Riverlet crayfish, Yazoo crayfish, yellow anisetree, yellow lance, yellow-sided clubtail.

Will This Affect Me? 2013 Proposals

American wolverine, Mono Basin sage grouse, Oregon spotted frog, red knot, Sierra Nevada yellow-legged frog, western yellow-billed cuckoo, Yosemite toad, ashy storm petrel, Dakota skipper, eastern small-footed bat, Kittlitz’s murrelet, Mexican garter snake, northern long-eared bat, Rosemont talussnail.

2014 Proposals Pacific fisher, Rio Grande cutthroat trout, yellow-billed loon, Montana grayling, black pine snake, least chub, Tucson shovel-nosed snake, Altamaha arcmussel, Altamaha shiner, Amargosa tryonia, ample elimia, angular dwarf crayfish

2015 Proposals New England cottontail rabbit, Columbia Basin greater sage grouse, greater sage grouse, eastern massasauga rattlesnake, headwater chub, Kentucky arrow darter, Lower Colorado River roundtail chub, Sonoran desert tortoise, Southern Idaho ground squirrel, Fairbanks springsnail, flag pyrg, flat-top pebblesnail, flat-topped steptoe pyrg, Florida brown checkered summer sedge, Florida cave amphipod, Florida cave crayfish, Florida fairy shrimp, Florida Keys mole Skink, Florida pondweed, Florida red-bellied turtle - Florida Panhandle, Florida willow, frecklebelly madtom, Freemouth hydrobe snail, fuzzy pigtoe, Georgia blind salamander, Georgia leadplant, globular pebblesnail, Godfrey’s privet, Godfrey’s stitchwort, gorge leafy liverwort, Grandfather Mountain crayfish, grated tryonia, green floater, Greenbrier cave crayfish, Greensboro burrowing crayfish, Gulf Hammock dwarf siren, Gulf sweet pitcherplant, hairy-peduncled beakrush, Halloween darter, Hall’s bulrush, Hall’s pocket moss, Hamlin Valley pyrg, Hardin crayfish, hardy pyrg.

2016 Proposals Scarlet Hawaiian honeycreeper (’i’iwi), relict leopard frog, Tahoe yellow cress.

2017 Proposals Pacific walrus.

What Are The Implications?

•  Nationwide impacts –  At least 3 species / state –  50+ in some states (e.g., FL – 115, TN – 103, VA – 75, KY – 55, NV –

54, CA – 52) –  81 new species listed in FY2013 – just the beginning!

•  Take prohibition – applies to everyone •  ESA § 7 consultation for any activity with federal

nexus that “may affect” listed species or CH –  Any federal permit/authorization/approval –  Federal funds –  Federal lands

What Can You Do?

•  Track proposed listings in Fed. Reg. •  Comment on proposed listing decisions

–  Support “not warranted” determinations

•  Prepare (develop protocols to avoid take if species listed) •  Candidate conservation agreements •  Incidental take permit/habitat conservation plan •  Establish/maintain excellent agency relationships!

Questions?