Presented by: Barbara A. Brenner Stoel Rives LLP. Bakersfield Association of Professional Landmen May 10, 2011

Transcription

1 Federal and State Endangered Species Issues Relevant to the Oil and Gas Industry in California Presented by: Barbara A. Brenner Stoel Rives LLP Bakersfield Association of Professional Landmen May 10, Federal ESA Section 9 prohibits a person from taking an endangered species. By regulation, the applicable Service can apply the Section 9 take prohibition to threatened species (and usually do). ( 4(d) Rule ) 2 What is a take? Take means to harass, harm, hunt, wound capture or kill a species, or attempt to do any of those things. Harm means an act which actually kills or injures wildlife, including significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, spawning, rearing, migrating, feeding and sheltering. 3 1

2 Agency Roles U.S. Fish & Wildlife Service terrestrial and freshwater species, plants National Marine Fisheries Service marine species Charged with listing species, enforcing the take prohibition, and consulting with other federal agencies 4 Examples of Harm and Harass NMFS has provided examples of harm to salmon: removing water or altering stream flow when it is likely to impair spawning, migration or other essential functions FWS position is that seismic exploration could harm or harass burrowing species 5 Incidental Take Authorization Two ways to obtain incidental take authorization: Section 10 habitat conservation plan (HCP) Formal section 7 consultation (usually BiOp) 6 2

3 ESA Compliance Decision Tree Private Party Federal nexus? Yes Section 7 Consultation No Take avoidance agreement Maybe Taking of species or its habitat? No No take letter Yes HCP or Conservation Agreement 7 No Take; Take Avoidance No Take Letter infrequent service concurs that actions will not risk taking species no take coverage may assist with local permitting builds record that action is not harmful 8 No Take; Take Avoidance (con t) Take Avoidance Agreement agree to avoid actions that may take service signs = action requiring Section 7 consultation get take coverage through Section 7 consultation process 9 3

4 Habitat Conservation Plans Sect. 10 For private actions where take authorization is needed or where actor wants assurances Section 10 authorizes issuance of incidental take permit for taking otherwise prohibited if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. 10 HCP Contents and Issuance Criteria Applicant must submit HCP that specifies: likely impact minimization and mitigation measures available funding alternatives considered any other measures deemed necessary by the Service 11 HCP Contents and Issuance Criteria (con t) Service may approve HCP and issue ITP if: taking will be incidental applicant will minimize and mitigate impacts to the maximum extent practicable funding is adequate taking will not appreciably reduce likelihood of survival and recovery 12 4

5 Assurances HCP should set forth foreseeable future changed circumstances and agreed-upon responses to those changes For any changed circumstances not provided for in the HCP, the Service may not require additional conservation or mitigation measures For unforeseen circumstances, the Service may require modifications to implementation of the HCP, but may not require commitment of additional land, water, or financial compensation, or additional restrictions on use of land, water or other natural resources beyond agreed-upon levels in HCP 13 HCP Summary Negotiation with USFWS and/or NMFS, applicant and involved parties HCP prepared by applicant USFWS/NMFS issues Incidental Take Permit Applicant implements action with conservation measures Federal Consultation (Sect. 7) Section 7 requires a federal action agency to ensure that any action it authorizes, funds or carries out and that may affect listed species Is not likely to jeopardize listed species by appreciably reducing the likelihood it will survive & recover in the wild adversely destroy or modify critical habitat 15 5

6 Applicant An applicant is defined as: any person who requires formal approval or authorization from a federal agency Actions that may require section 7 consultation include: federal contracts, permits, licenses, authorizations, leases, or funding Special role in consultation designated non-federal representative provide data and information; review drafts will implement conditions required as a result of consultation get incidental take coverage 16 Initial Consultation Process Agency action, may affect determination Preparation of biological assessment/evaluation by action agency or applicant as designated non-federal representative 17 Initial Consultation Process (con t) Submit BA/BE to Service with either: likely to adversely affect and request for formal consultation GO TO FORMAL CONSULTATION not likely to adversely affect and request for concurrence INFORMAL CONSULTATION CONCLUDED 18 6

7 Informal Consultation Summary Federal Action No Effect = end MayAffect Develop BA Not likely to adversely affect Likely to adversely affect Service does not concur Service concurs Go to Formal Consultation Go to Formal Consultation End of Informal Consultation Formal Consultation: the BiOp Evaluates effects of action includes indirect effects includes interrelated and interdependent effects: part of a larger action and depend on the larger action for their justification; have no independent utility apart from the action under consideration. 50 C.F.R Considers environmental baseline Considers cumulative effects (future state & private actions) Includes conference on proposed species Results in a jeopardy or no jeopardy determination Results in adverse modification or no adverse modification for critical habitat 20 No Jeopardy BiOp Allows the action to move forward Includes Reasonable & Prudent Measures Terms & Conditions implement the RPMs cannot change the scope, duration, timing, location cannot result in more than a minor change Authorizes Incidental Take 21 7

8 Jeopardy BiOp Action agency cannot move forward with action as is Service can propose Reasonable and Prudent Alternative (RPA) RPA must be reasonable, feasible RPA can require more than minor changes If no RPA, action cannot move forward 22 Formal Consultation Summary Likely to AdverselyAffect Service Prepares BiOp Jeopardy No Jeopardy Stop Action Implement Action with RPMs, Terms & Conditions Implement RPA California Endangered Species Act (CESA) Fish & Game Code 2080 prohibits take of any species that is listed as endangered or threatened take is defined as hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. not harass or disturb 24 8

9 Incidental Take Permit (2081 Permit) Early consultation with DFG Take is incidental to otherwise lawful activity Minimization and avoidance measures to minimize project impacts Fully mitigated standard must offset project caused losses of species and habitats Permit will not jeopardize continued existence of species CEQA compliance required 25 Incidental Take Permit (2081 Permit) (con t) Fully mitigated standard measures to minimize and fully mitigate impacts of the take mitigation roughly proportional in extent to the take impact maintain project objectives to extent possible mitigation can successfully be implemented Permit Conditions Measures to minimize the take of species and to mitigate the impacts caused by the take set forth in permit and attachment(s) to the permit. A mitigation plan (Mitigation and Management Plan or NCCP) prepared by the Permittee in coordination with DFG 27 9

10 2081 Permit Conditions (con t) Delineation of construction sites; take avoidance measures; preconstruction notification; employee education programs; reporting procedures when an animal is killed, injured or trapped; compliance inspections and reports; acquisition and transfer of habitat management lands; and associated funding ($ for document processing and for initial protection e.g., fencing, posting, clean-up), and endowments Permit Conditions (con t) Mitigation and monitoring endowment fund as security for ongoing mitigation and monitoring (generally 1 st 5 years) Endowment holder fee (NFWF) Conservation Easement holder (Land Trust, CRT) Consistency Determinations Applicant who has obtained a federal incidental take statement (BiOp or HCP) can request DFG to authorize take of state listed species by issuing a consistency determination Applicant must submit the federal BiOp or HCP to the Director of Fish and Game 30 10

11 Consistency Determinations (con t) 30-day clock for processing the Consistency Determination DFG must determine that the conditions specified in the federal incidental take permit are consistent with CESA Used only for species that are listed under both federal ESA and CESA certain species only State listed State has fully protected species Consistency Determinations (con t) Under a Consistency Determination: DFG cannot add any conditions to the federal BiOp to meet the full mitigated standard often the BiOp does not contain enough details in describing mitigation measures the federal standard for including plants is jeopardy if pertinent section of the Endangered Species Act change, Consistency Determination could become invalid Fully protected species require complete avoidance 32 Fully Protected Species Fully protected was the State's initial effort in the 1960's to identify and provide additional protection to those animals that were rare or faced possible extinction. Most fully protected species have also been listed as threatened or endangered under the state or federal endangered species laws and regulations

12 Fully Protected Species (con t) Fully protected species may not be taken or possessed No licenses or permits may be issued for their take except for necessary scientific research and relocation 34 Fully Protected Species (con t) Fully Protected species include: Fishes -Colorado River squawfish -Mohave chub -Modoc sucker Amphibians -Santa Cruz long-toed salamander -Limestone salamander -Black toad Reptiles -blunt-nosed leopard lizard -San Francisco garter snake Mammals -Morro Bay kangaroo rat -bighorn sheep -salt-marsh harvest mouse Birds -American peregrine falcon - brown pelican -California condor -golden eagle -greater sandhill crane -light-footed clapper rail -bald eagle -trumpeter swan -white-tailed kite 35 San Joaquin Kangaroo Rat Blunt-Nosed Leopard Lizard San Joaquin Kit Fox 12

13 Natural Community Conservation Planning (NCCP) Broad-based ecosystem approach to planning for the protection and perpetuation of biological diversity Identifies and provides for the regional or areawide protection of plants, animals, and their habitats, while allowing compatible and appropriate economic activity Broader in its orientation and objectives than the California and Federal Endangered Species Acts 37 Natural Community Conservation Planning (NCCP)(con t con t) Designed to identify and protect individual species that have already declined significantly Focus is long-term stability of wildlife and plant communities and including key interests in the process DFG and USFWS provide support, direction, and guidance to NCCP and HCP participants 38 13

14 Questions 40 Thank you! Contact information: Barbara A. Brenner