Innovative Airport Responses to Threatened and Endangered Species (2014)

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2Glossary of Terms and Definitions Act—the Endangered Species Act. Action—all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by federal agencies in the United States or upon the high seas (50 CFR §402.02). Action area—all areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action (50 CFR §402.02). Advisory Circular—Advisory Circulars are informational documents produced by the FAA to inform and guide insti- tutions, operations, and individuals within the aviation industry, as well as the general public. Advisory Circulars are intended to be informative in nature and not regulatory; however, many times they describe actions or advice that the FAA expects to be implemented or followed. Airport sponsor—(1) a public agency that submits an appli- cation to the Secretary of Transportation for financial assis- tance under 49 U.S.C. Subpart B, Chapter 471, Subchapter I, Airport Development or (2) a private owner of a public-use air- port who submits an application for financial aid for the airport to the Secretary of Transportation under 49 U.S.C. Subpart B, Chapter 471, Subchapter I (49 U.S.C. 47102 [19]). Applicant—see “permit or license applicant.” Biological assessment—information prepared by, or under the direction of, a federal agency to determine whether a pro- posed action is likely to: (1) adversely affect listed species or designated critical habitat; (2) jeopardize the continued exis- tence of species that are proposed for listing; or (3) adversely modify proposed critical habitat. Biological assessments must be prepared for “major construction activities” (50 CFR §402.02, 50 CFR §402.12). Biological opinion—a document that includes (1) the opin- ion of the USFWS or the National Marine Fisheries Service (NMFS) (see below) as to whether or not a federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of desig- nated critical habitat; (2) a summary of the information on which the opinion is based; and (3) a detailed discussion of the effects of the action on listed species or designated critical habitat (50 CFR §402.02, 50 CFR §402.14[h]). Candidate species—plant and animal taxa considered for possible addition to the List of Endangered and Threatened Species (61 FR 7596-7613 [February 28, 1996]). USFWS fur- ther defines candidate species as plants and animals for which the USFWS has sufficient information on their biological status and threats to propose them as endangered or threat- ened under the Endangered Species Act (ESA), but for which development of a proposed listing regulation is precluded by other, higher priority listing activities. Categorical exclusion (CatEx)—categorical exclusions are federal actions that meet the criteria contained in 40 CFR 1508.4. They represent actions that the FAA has found, based on past experience with similar actions, do not normally require an environmental assessment (EA) or environmental impact statement (EIS) because they do not individually or cumulatively have a significant effect on the human environ- ment, with the exception of extraordinary circumstances. Conference—a process of early interagency cooperation involving informal or formal discussions between a federal agency and USFWS and/or NMFS pursuant to section 7(a) (4) of the Act regarding the likely impact of an action on pro- posed species or proposed critical habitat (50 CFR §402.02, 50 CFR §402.10). Conservation—the terms “conserve,” “conserving,” and “con- servation” mean to use and the use of all methods and proce- dures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the] Act are no longer necessary (ESA §3[3]). Conservation measures—actions to benefit or promote the recovery of listed species that are included by the fed- S E C T I O N 2

3 eral agency as an integral part of the proposed action. These actions will be taken by the federal agency or applicant and serve to minimize, or compensate for, project effects on the species under review. Conservation recommendations—non-binding suggestions from the USFWS and/or NMFS resulting from formal or informal consultation that (1) identify discretionary measures a federal agency can take to minimize or avoid the adverse effects of a proposed action on listed or proposed species, or designated or proposed critical habitat; (2) identify studies, monitoring, or research to develop new information on listed or proposed species, or designated or proposed critical habi- tat; and (3) include suggestions on how an action agency can assist species conservation as part of their action and in fur- therance of their authorities under section 7(a)(1) of the Act (50 CFR §402.02). Critical habitat—for listed species consists of (1) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of the Act, on which are found those physical or biological features (constituent elements) (a) essential to the conserva- tion of the species and (b) which may require special manage- ment considerations or protection; and (2) specific areas out- side the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination by the Secretary that such areas are essential for the conservation of the species (ESA §3 [5][A]). Cumulative effects—are those effects of future state or pri- vate activities, not involving federal activities, that are rea- sonably certain to occur within the action area of the federal action subject to consultation (50 CFR §402.02). (This defi- nition applies only to section 7 analyses.) Designated non-federal representative—the person, agency, or organization designated by the federal agency as its repre- sentative to conduct informal consultation or prepare a bio- logical assessment (50 CFR §402.02, 50 CFR §402.08). Distinct population segment—a population of any vertebrate species of fish or wildlife that interbreeds when mature and that meets the criteria for distinctness and significance described in USFWS’s and NMFS’s joint policy (61 FR 4722-4725). Early consultation—a preliminary consultation requested by a federal agency on behalf of a prospective permit or license applicant prior to the filing of an application for a federal permit (50 CFR §402.11). Effects of the action—the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdepen- dent with that action. Considered with the environmental baseline and predicted cumulative effects to determine over- all effects to the species for purposes of preparing a biological opinion on the proposed action (50 CFR §402.02). Endangered species—any species which is in danger of extinction throughout all or a significant portion of its range (ESA §3[6]). Environmental assessment (EA)—an EA is a “concise docu- ment” that takes a “hard look” at expected environmental effects of a proposed action. Environmental impact statement (EIS)—regulations at 40 CFR 1502.1 state that an EIS’s primary purpose is to be an “action-forcing tool” to ensure that federal government pro- grams and actions meet the National Environmental Policy Act’s (NEPA’s) goals and policies. ESA—the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq. Federal agency—any department, agency, or instrumentality of the United States. Fish or wildlife—any member of the animal kingdom, includ- ing without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which pro- tection is also afforded by treaty or other international agree- ment), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof. Formal consultation—a process occurring between USFWS and/or NMFS and a federal agency or applicant that (1) deter- mines whether a proposed federal action is likely to jeopar- dize the continued existence of listed species or destroy or adversely modify designated critical habitat; (2) begins with a federal agency’s written request and submittal of a complete initiation package; and (3) concludes with the issuance of a biological opinion and incidental take statement by either USFWS or NMFS (50 CFR §402.02, §402.14). Habitat conservation plan (HCP)—under section 10(a) (2)(A) of the Act, a planning document that is a mandatory component of an incidental take permit application, also known as a “conservation plan.” Incidental take—take of listed fish or wildlife species that results from, but is not the purpose of, carrying out an other- wise lawful activity conducted by a federal agency or appli- cant (50 CFR §402.02). Also see 50 CFR 17.4. Indirect effects—those effects that are caused by or will result from the proposed action and are later in time, but are still reasonably certain to occur (50 CFR §402.02). Informal consultation—an optional process that includes all discussions and correspondence between the USFWS and

4NMFS and a federal agency or designated non-federal repre- sentative, prior to formal consultation, to determine whether a proposed federal action may affect listed species or critical habitat (50 CFR §402.02, §402.13). Interdependent actions—actions having no independent utility apart from the proposed action (50 CFR §402.02). Interrelated actions—actions that are part of a larger action and depend on the larger action for their justification (50 CFR §402.02). Is likely to adversely affect—the appropriate finding in a biological assessment (or conclusion) 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 and is not discountable, insignificant, or beneficial. Is not likely to adversely affect—the appropriate conclusion when effects on listed species are expected to be discountable, insignificant, or completely beneficial. Beneficial effects are contemporaneous positive effects without any adverse effects to the species. Insignificant effects relate to the size of the impact and should not reach the scale where take occurs. Jeopardize the continued existence of—to engage in an 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 reproduc- tion, numbers, or distribution of the species (50 CFR §402.02). Lead agency—for most airport actions, the FAA will be the lead agency (FAA Order 1050.1E). Listed species—any species of fish, wildlife, or plant which has been determined to be endangered or threatened under section 4 of the Act (50 CFR §402.02). Major construction activity—a construction project (or other undertaking having similar physical effects), which is a major federal action significantly affecting the quality of the human environment as referred to in NEPA (NEPA, 42 U.S.C. 4332[2][C], 50 CFR §402.02). May affect—the appropriate conclusion when a proposed action may impose any effects on listed species or desig- nated critical habitat. When the federal agency proposing the action determines that a “may affect” situation exists, then they must either initiate formal consultation or seek written concurrence from USFWS and/or NMFS that the action “is not likely to adversely affect” listed species. National Environmental Policy Act (NEPA)—signed into law on January 1, 1970. Establishes national environmen- tal policy and goals for the protection, maintenance, and enhancement of the environment and provides a process for implementing these goals within the federal agencies. National Marine Fisheries Service (NMFS)—an office in the National Oceanic and Atmospheric Administration (NOAA) within the U.S. Department of Commerce. USFWS and the NMFS-NOAA fisheries share responsibility for implement- ing the ESA. NMFS is responsible for 94 marine species, from whales to sea turtles and salmon to Johnson’s seagrass. NOAA Fisheries—NOAA NMFS and USFWS share respon- sibility for implementing the ESA. The NMFS is usually referred to as NOAA Fisheries. No effect—the appropriate conclusion when the action agency determines its proposed action will not affect a listed species or designated critical habitat. [Clarification of usage] “Permit or license applicant”—when used with respect to an action of a federal agency for which exemption is sought under section 7, any person whose application to such agency for a permit or license has been denied primarily because of the application of section 7(a) to such agency action. Person—an individual, corporation, partnership, trust, asso- ciation, or any other private entity; or any officer, employee, agent, department, or instrumentality of the federal govern- ment, of any state, municipality, or political subdivision of a state, or of any foreign government; any state, municipality, or political subdivision of a state; or any other entity subject to the jurisdiction of the United States. Plant—any member of the plant kingdom, including seeds, roots, and other parts thereof (SEC. 3. [16 U.S.C. 1532]). Population—a group of fish or wildlife in the same taxon below the subspecific level, in common spatial arrangement that interbreed when mature [50 CFR 17.3]. The term has additional application as part of the ESA’s definition of spe- cies at 16 U.S.C. 1532 (16). Proposed critical habitat—habitat proposed in the Federal Register to be designated as critical habitat, or habitat pro- posed to be added to an existing critical habitat designation, under section 4 of the Endangered Species Act for any listed or proposed species (50 CFR §402.02). Proposed species—any species of fish, wildlife, or plant that is proposed in the Federal Register to be listed under section 4 of the Endangered Species Act (50 CFR §402.02). Reasonable and prudent alternatives—recommended alter- native actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the federal agency’s legal authority and jurisdiction, that are economically and technologically feasi- ble, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or the destruction or adverse modification of designated critical habitat (50 CFR §402.02).

5 Reasonable and prudent measures—actions the Director believes necessary or appropriate to minimize the impacts, i.e., amount or extent, of incidental take (50 CFR §402.02). Recovery—improvement in the status of listed species to the point at which listing is no longer appropriate under the cri- teria set out in section 4(a)(1) of the Act (50 CFR §402.02). Section 4—the section of the Endangered Species Act of 1973, as amended, outlining procedures and criteria for: (1) identifying and listing threatened and endangered spe- cies; (2) identifying, designating, and revising critical habitat; (3) developing and revising recovery plans; and (4) moni- toring species removed from the list of threatened or endan- gered species as well as other provisions (ESA §4). Section 7—the section of the Endangered Species Act of 1973, as amended, outlining the responsibilities and pro- cedures for interagency cooperation to conserve federally listed species and designated critical habitats (SEC. 7. [16 U.S.C. 1536]). Section 7 consultation—the various section 7 processes, including both consultation and conference if proposed species are involved (50 CFR §402). Section 9—the section of the Endangered Species Act of 1973, as amended, that prohibits the taking of endangered species of fish and wildlife. Additional prohibitions include: (1) import or export of endangered species or products made from endangered species; (2) interstate or foreign commerce in listed species or their products; and (3) possession of unlawfully taken endangered species [ESA §9]. By regulation, USFWS generally extends the take prohibitions to threatened wildlife per 50 CFR 17.31. Section 10—the section of the Endangered Species Act that allows non-federal parties planning activities that have no federal nexus, but which could result in the incidental taking of listed species, to apply for an incidental take permit. Service(s)—the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (or both). Species—includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of verte- brate fish or wildlife which interbreeds when mature. Take—to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct. [ESA §3(19)] Harm is further defined by USFWS to include significant habitat modification or degradation that results in death or injury to listed species by significant- ly impairing behavioral patterns such as breeding, feeding, or sheltering. Further, NOAA defines the term harm as “an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” Harass is defined by USFWS as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering (50 CFR §17.3). Threatened species—any species which is likely to become an endangered species within the foreseeable future through- out all or a significant portion of its range. USACE—acronym for the Army Corps of Engineers. USFWS—U.S. Fish and Wildlife Service.