Jeff Leppo, Stoel Rives

AOGA Educational Seminar
_____________________________
Endangered Species Act
Permitting Legal Challenges
Trends
Jeff Leppo
Stoel Rives LLP
December 11, 2012
Anchorage, AK
jwleppo@stoel.com
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ESA Overview
"My lawyer finally got me on the endangered-species list!"
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The ESA Basics
The ESA authorizes the Secretaries of Interior and
Commerce to conserve fish, wildlife and plants
facing extinction by:
(1) listing species as threatened or endangered
(2) designating critical habitat
(3) enforcing the prohibition on take of listed species
(4) Consulting to ensure that actions funded or
authorized by federal agencies do not jeopardize
listed species or adversely modify critical habitat
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The ESA Basics
• Procedural and substantive requirements
• Implemented by U.S. Fish and Wildlife
Services (FWS) and the National Marine
Fisheries Service (NMFS) (the “Services”)
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ESA Listing
Identifying species for possible designation
as endangered or threatened
• A citizen may petition the FWS or NMFS
• The Services may identify species through internal
studies and discussions
• Subpopulations may be listed as a Distinct
Population Segment (DPS) if both discreet and
significant
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Key Definition –
Endangered Species
• Any species in danger of extinction
throughout all or a significant
portion of its range
Bowhead whale
(Balaena mysticetus)
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Key Definition –
Threatened Species
• Any species likely to become
endangered in the foreseeable future
Spectacled Eider
(Somateria fischeri)
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ESA Listing Criteria
1. Present or threatened destruction, modification,
or curtailment of species range or habitat
2. Over-use for commercial, recreational,
scientific, or educational purposes
3. Disease or predation
4. Inadequacy of existing regulatory mechanisms
5. Other natural or man-made factors affecting
continued existence of species
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ESA Listing Steps
• Petition
• 90-day finding on Petition
• Species status review 12-month finding
• Proposed listing
• Final listing
• Designation of critical habitat
• Recovery plan
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ESA Listings - Alaska
•
8 marine mammals
– Polar bear
– Northern sea otter (DPS)
– Steller sea lion (2 DPSs)
– Bowhead whale
– Fin whale
– Humpback whale
– Cook Inlet beluga whale (DPS)
•
Others (uncommon)
– Leatherback sea turtle
– Blue whale
– North Pacific right whale
– Sei whale
– Loggerhead sea turtle
– Green sea turtle
– Sperm whale
•
4 birds
– Short-tailed albatross
– Spectacled eider
– Steller’s eider (DPS)
– Eskimo curlew (extirpated)
•
3 candidate species
– Pacific walrus
– Kittlitz’s murrelet
– Yellow-billed loon
2 proposed species
– Ringed seal
– Bearded seal
1 species being reconsidered
– Ringed seal
•
•
1 terrestrial mammal
– Canadian Lynx
1 plant
– Aleutian shield fern
•
•
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Key Definition - Take
• Includes harassing, harming, injuring or
killing listed species
• Harm includes significant habitat
alteration which actually kills or injures
fish or wildlife by significantly impairing
essential behavioral patterns
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Take of Listed Species
Is Prohibited
• ESA take prohibitions immediately apply when
species are listed as endangered
• ESA take prohibitions do not automatically apply
to “threatened” species
• FWS has adopted a general 4(d) rule applying take
prohibitions subject to species specific limitations
• NMFS adopts species specific 4(d) regulations
that apply or limit application of the take prohibition
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Prerequisite to ESA
Take Authority
• Take authority under the ESA for listed
marine mammals cannot be obtained
without an MMPA take (negligible impact)
authorization
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Takings Exceptions
• Alaska Natives
– for subsistence purposes
• Self Defense
– actions to protect yourself or any human
from bodily harm
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Critical Habitat
• Use best scientific data to identify areas essential to
conservation of species, and that may require
special management
• Economic impact analysis required; areas may be
excluded from protection based upon that analysis
and consideration of other relevant factors if benefits
of exclusion outweigh benefits of designation
• Notice and public comment
• Designation does not create a park or preserve, but
does complicate activities within the habitat area 16
Key Definition – Critical Habitat
• Specific geographic areas with physical
and biological features essential to the
conservation of a listed species and
that may require special management
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Polar Bear Critical Habitat
• Dec. 7, 2010 (75 FR 76086)
• 187,000 square miles
– Sea ice habitat
– Terrestrial denning habitat
– Barrier Island habitat
• Service admits no
conservation benefit
– ESA and MMPA adequately
protective
– FWS will not use to regulate
GHG emissions
• Service recognized O&G
activities are not a threat
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Cook Inlet Beluga Whale
Critical Habitat (proposed)
• Nearshore foraging and
calving (Area 1)
• Near and offshore feeding
and transit (Area 2)
• Economic analysis
estimates under $600K
in impacts
• Underestimates costs,
delays, regional impact
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19
Potential Bearded & Ringed Seal Habitat
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Future Walrus Critical Habitat?
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Section 7 Consultation
• Purpose is to ensure that actions
authorized, funded or carried out by
federal agencies are not likely to
jeopardize the continued existence of
listed species, or to destroy or
adversely modify critical habitat.
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Key Definition – Jeopardy
• Jeopardizing the continued existence of a
species means – to engage in an action
that reasonably would be expected,
directly or indirectly, to reduce appreciably
the likelihood of the survival and recovery
of a listed species in the wild by reducing
the reproduction, numbers, or distribution
of that species
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Section 7 Consultation
• If agency action may affect a listed species
or critical habitat, the agency must initiate
consultation with the Services
• Private entities are affected by Section 7
when their activities require federal
permits or authorizations, or federal funding
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Informal Consultation Summary
Federal Action
No Effect = no consultation
“May Affect” Listed Species
Develop biological assessment
Not likely to adversely affect
Likely to adversely affect
End of Informal Consultation
Go to Formal Consultation
Biological Opinion and
Incidental Take Statement
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Formal Consultation
• Biological opinion evaluating the action
• Two possible outcomes:
1. No jeopardy opinion – federal action not
likely to jeopardize species or adversely
modify critical habitat
– Issuance of incidental take statement
– Imposition of reasonable and prudent measures
to minimize take
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Formal Consultation
2. Jeopardy Opinion – federal action likely
to jeopardize species or adversely modify
critical habitat
– Identifies reasonable and prudent alternatives
that avoid jeopardy or adverse modifications
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Endangered Species Act Trends
• Climate change-based listings, and related critical
habitat designations, for currently abundant arctic
species, pose new resource use challenges
• The ESA regulatory process, particularly as
interrelated with NEPA and MMPA regulatory
process, poses important schedule discipline and
substantive legal challenges
• Change and uncertainty, conflicting and competing
priorities, and new listings and critical habitat
designations will continue to be confounding factors
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Resource Development
Permitting Challenges – 2013
• eNGO initiatives will continue to proliferate and to
complicate Alaska resource development, but their
strategies will evolve
• Nearly every significant federal permitting decision,
including project-specific decisions, are likely to be
challenged
• NEPA, ESA, CAA, CWA, MMPA will continue to be
primary legal battlegrounds
• Responsible federal officials will not be nimble in
anticipating and responding to these circumstances
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Important Trends
• eNGO challenges and federal decisions are being
heavily influenced by the so-called “precautionary
principle.”
• Reliable published data and analysis is essential.
Actual data will demonstrate that conservatively
biased assumptions are not reasonable.
• The State of Alaska can serve a critically important
role in advancing science-based decision-making.
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