Overview of Federal and State Wildlife Regulations

Overview of Federal and State Wildlife Regulations

History of Federal Endangered Species Protection State Ownership Doctrine Lacey Act of 1900 Migratory Bird Treaty Act of 1918 Fish and Wildlife Coordination Act Endangered Species Preservation Act of 1966 Endangered Species Conservation Act of 1969 National Environmental Policy Act of 1969 Endangered Species Act of 1973

ESA Regulatory Authority NOAA Fisheries jurisdiction: marine species and most anadromous fish USFWS jurisdiction: terrestrial and freshwater aquatic species

Overview of Federal Endangered Species Act Key Issues Section 4: Listing process (threatened and endangered species, critical habitat) Section 7: Federal agency consultation requirement (preparation of biological assessments and biological opinions) Section 9: Prohibited acts ( take ) Section 10: Take permits 16 USC 1531 et seq. ES-4

Section 4: Listing Definitions Species: includes species or subspecies of fish, wildlife, or plants and any distinct population segments of any vertebrate fish or wildlife which interbreeds when mature Distinct Population Segment: ESUs identify distinct population segments of species of anadromous fish that warrant protection in certain geographic area Endangered Species: species in danger of extinction through all or significant portion of its range Threatened Species: species likely to become endangered within the foreseeable future Proposed Species: any species proposed for listing in Federal Register Candidate Species: under consideration for proposing to list; file with sufficient information on vulnerability and threats to support issuance of proposal to list but other priorities preclude listing

Threatened vs. Endangered 4(d) Rule: under Section 4(d) of the ESA listing process, protections for threatened species under Section 9 are under the discretion of the Secretary Note: if no special rule regarding take is defined for threatened species: USFWS listed threatened species automatically receive Section 9 protections (because of separate regulation) until 4(d) rule modifies protections NOAA Fisheries listed threatened species receive no protections (no separate regulation) until 4(d) rule is promulgated

Section 9: Prohibited Acts Take: action of or attempt to hunt, harm, harass, pursue, shoot, wound, capture, kill, trap, or collect a species Harm: any act that kills or injures species, including significant habitat modification or degradation Harass: any act or omission, intentional or negligent, that creates the likelihood of injury to a species by annoying it to such an extent to significantly disrupt normal behavior patterns ES-7b

Exceptions to Section 9 Federal Agency Involvement (Section 7), No- Jeopardy Biological Opinion: as part of the federal agency s formal consultation requirement under Section 7, statement authorizing the incidental take of a listed species No Federal Agency Involvement (Section 10), Section 10 Permits: scientific take permits and incidental take permits 4(d) Rule Limits: see 50 CFR 17.31; 223.203 ES-8

Section 7: Consultation Key Players USFWS/NOAA Fisheries: engage in consultations with federal action agencies to determine affect of federal action Federal Action Agency: federal agency authorizing, funding, or carrying out an action Nonfederal Project Proponent (where applicable): party seeking federal authorization or funding to carry out an activity Non-Federal Representative: Federal agency may designate a non-federal representative to conduct informal consultation or prepare biological assessment Federal agency must give written notice to the Services If applicant is not the designee, applicant must agree on choice

Section 7: Consultation Key Terms Jeopardy: 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 Destruction or adverse modification of critical habitat: alteration of essential features of the critical habitat that appreciably diminishes value of the habitat for either survival and recovery of a listed species (see Gifford Pinchot Task Force V. U.S. Fish & Wildlife Service)

Section 7 Biological Assessment conclusions: No Effect May affect but not likely to adversely affect (NLAA) When effects on listed species are expected to be discountable, insignificant, or completely beneficial. Requires written concurrence from Services No formal consultation required May adversely affect If any adverse effect to listed species may occur as a direct or indirect result of the proposed action or its interrelated or interdependent actions Includes overall beneficial but some adverse effects and incidental take is anticipated to occur Requires initiation of formal consultation

Section 7 Biological opinion If jeopardy/destruction or adverse modification of critical habitat opinion, biological opinion must include Reasonable and prudent alternatives (RPAs) for the proposed federal agency action that will not result in jeopardy or destruction/adverse modification or Statement why there are no alternatives If no-jeopardy opinion, biological opinion may include reasonable and prudent conservation measures considered to be minor modifications to proposed federal action; incidental take statement with reasonable and prudent measures (RPMs) to minimize impacts of incidental take ES-15c

Section 10 Permits Section 10(a)(1)(A) Authorized Take Permits issued by USFWS/NOAA Fisheries Scientific research and recovery permits, associated with activities such as captive breeding, trapping/banding; Interstate commerce permits, associated with transport and captive breeding activities Enhancement of survival permits (ESPs), associated with Safe Harbor Agreements and Candidate Conservation Agreements with Assurances (CCAA) Section 10(a)(1)(B) Incidental Take Permits (ITPs) issued by USFWS/NOAA Fisheries For take that is incidental to an otherwise lawful activity and covered by an approved habitat conservation plan for the affected species ES-19

Locations of Approved HCPs May 2004 6 9 1 1 2 104 5 4 11 11 188 1 4 2 3 3 1 1 1 1 4 23 3 26 1 1 (PR) 1

California Endangered Species Program History earlier version no protection; current version enacted in 1984 to generally parallel the federal ESA Legislative Findings where feasible, state should conserve species threatened or endangered with extinction ES-36a

Listing Process: Key Terms Endangered: native bird, mammal, fish, amphibian, reptile, or plant in serious danger of becoming extinct overall or a significant portion of its range Threatened: native bird, mammal, fish, amphibian, reptile, or plant not presently endangered but likely to become endangered if not given special protection Endangered and Threatened Species: implicitly excludes invertebrates; excludes non-native species Candidate Species: under review for listing ES-37a

Listing Process DFG initiative or by petition California Fish and Game Commission makes final determination Standard: sufficient scientific information that action may be warranted F&GC may emergency list a species if significant threat to survival DFG: annual status reports; 5-year endangered species ES-38a

Prohibited Acts Endangered and Threatened Species (Section 2080): prohibition against commerce and taking Take (Section 86): action to or attempt to hunt, pursue, catch, capture, or kill Although harm and harassment are not officially in take definition, habitat modification may constitute take if they are the proximate cause of death ES-39

Section 2081(b) Permit DFG Must Make Findings Take is incidental to otherwise lawful activity Impacts of take are minimized and fully mitigated (mitigation requirement must be roughly proportional to the impact) Take permit must be consistent with DFG recovery programs Funding for mitigation and monitoring program is adequately assured Action will not jeopardize continued existence of the species ES-42

Natural Community Conservation Planning Act 1991 NCCPA established program 2002 NCCPA repealed and replaced 1991 Act need for broad-based planning to provide for effective protection and conservation of the state's wildlife heritage while continuing to allow appropriate development and growth. Voluntary program Designed for large-scale proactive conservation planning HCP Plus

Sec. 2835 Take Authorized under NCCP Conserve (contribute to recovery) species Mitigation roughly proportional in time and extent to impact Conserve ecological integrity, ecosystem function, biodiversity Adaptive management Monitoring Public involvement Scientific review Ensure funding Planning Agreement Implementing Agreement Not jeopardize species Assurances

Other California Fish and Game Code Protection Species protected under California Fish and Game Codes for which DFG may not authorize take, except for scientific research Section 3511 Fully protected birds Section 4700 Fully protected mammals Section 5050 Fully protected reptiles and amphibians Section 5515 Fully protected fish no provision of this code or any other law shall be construed to authorize the issuance of permits or licenses to take any fully protected [bird], [mammal], [reptile or amphibian], [fish]... ES-49

Other Species Protected under CFGC Section 3505 Specified Birds Osprey, great egret, snowy egret DFG authorizes take Section 3503 Eggs and Nests of Birds DFG may issue regulations authorizing take Section 3503.5 Birds of Prey DFG may issue regulations authorizing take ES-54

Interrelationship of ESA and CESA with Other Environmental Laws and Regulations NEPA CEQA Marine Mammal Protection Act Migratory Bird Treaty Act ES-69

The National Environmental Policy Act Integration Requirement: NEPA requires that federal agencies, to the fullest extent possible, integrate the environmental impact analyses and related surveys and studies as required by the Fish and Wildlife Coordination Act [and] the Endangered Species Act CFR 1502.25(a) ES-32

What Is CEQA? CEQA is the California Environmental Quality Act CEQA was the first state law modeled after NEPA and is one of only 16 states with a Little NEPA CEQA introduced the concept of environmental impact assessment to state and local planning in California CEQA is the backbone of environmental policy in California

Objectives of CEQA? Disclose to decision makers and the public significant environmental effects of projects Identify ways to avoid or reduce environmental damage Prevent environmental damage by requiring implementation of feasible alternatives or mitigation Disclose to the public reasons for approving projects with significant impacts Foster interagency coordination Enhance public participation

Types of CEQA Compliance Statutory or Categorical Exemption Initial Study Negative Declaration and Mitigated Negative Declaration Environmental Impact Report Project Program Master Joint Tiered Supplemental, Subsequent, or Addendum C43

CEQA Section 15086: Lead Agency must consult with Trustee Agencies on resources affected by the project Section 15386: Trustee Agency means a state agency having jurisdiction by law over natural resources affected by a project which are held in trust for the people of the State of California; Trustee Agencies include California Department of Fish and Game with regard to Fish and wildlife of the state Designated rare or endangered native plants Game refuges, ecological reserves, and other areas administered by the department ES-57a

CEQA (Cont.) Section 15065: Mandatory Findings of Significance A Lead Agency shall find that a project may have a significant effect on the environment, unless otherwise mitigated, and thereby require an EIR to be prepared for the project where the project has potential to Substantially degrade quality of the environment; Substantially reduce habitat of fish and wildlife species; Cause fish or wildlife population to drop below selfsustaining levels; Threaten to eliminate a plant or animal community; Substantially reduce the number or restrict the range of an endangered, rare, or threatened species; or Cause impacts that are individually limited but cumulatively considerable. ES-57b

Summary of Protections under CEQA Summary of protection for rare, threatened, and endangered species Lead Agency determines what species will be considered rare, threatened, endangered, or otherwise sensitive (CESA and ESA species are automatic) Lead Agency can decide to consider habitat for rare, threatened, and endangered species ES-57g

Summary of Protections under CEQA (Cont.) Lead Agency determines criteria for significant impact determination (Appendix G substantial effect) and requirements for mitigation and monitoring DFG reviews and comments on CEQA document and possibly issues 2081 take authorization for CESA species ES-57h

Marine Mammal Protection Act of 1972 NOAA Fisheries jurisdiction: Whales, dolphins (porpoises), sea lions, seals USFWS jurisdiction: Polar bears, walruses, sea otters, manatees Take: Actual or attempted harassing, hunting, capturing, and killing Section 103: Waiver of prohibition (take authorization) permit Secretary must insure that any taking will not be to the disadvantage of the species or population stock and will be consistent with the Act s purposes and policy ES-72

Migratory Bird Treaty Act, 1918 Purpose: protect and manage migratory birds Prohibits any person from taking, possessing, importing, exporting, transporting, selling, bartering, or purchasing any migratory bird or migratory bird product (e.g., nest, eggs) Take: Action of, or attempt to, pursue, hunt, shoot, capture, collect, or kill. Responsible Agency: USFWS Compliance: Must obtain Migratory Bird Permit / Hunting Permit ES-73

Other Federal Laws The Lacey Act The Bald Eagle and Golden Eagle Act The Airborne Hunting Act The Wild Free-Roaming Horses and Burros Act The Animal Welfare Act The Whaling Convention Act Fur Seal Act Plant Pest Act Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Section 404 of the Clean Water Act