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Innovative Airport Responses to Threatened and Endangered Species (2014)

Chapter: Section 3 - An Introduction to Endangered Species Regulation

« Previous: Section 2 - Glossary of Terms and Definitions
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Suggested Citation:"Section 3 - An Introduction to Endangered Species Regulation." National Academies of Sciences, Engineering, and Medicine. 2014. Innovative Airport Responses to Threatened and Endangered Species. Washington, DC: The National Academies Press. doi: 10.17226/22222.
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Suggested Citation:"Section 3 - An Introduction to Endangered Species Regulation." National Academies of Sciences, Engineering, and Medicine. 2014. Innovative Airport Responses to Threatened and Endangered Species. Washington, DC: The National Academies Press. doi: 10.17226/22222.
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Suggested Citation:"Section 3 - An Introduction to Endangered Species Regulation." National Academies of Sciences, Engineering, and Medicine. 2014. Innovative Airport Responses to Threatened and Endangered Species. Washington, DC: The National Academies Press. doi: 10.17226/22222.
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Suggested Citation:"Section 3 - An Introduction to Endangered Species Regulation." National Academies of Sciences, Engineering, and Medicine. 2014. Innovative Airport Responses to Threatened and Endangered Species. Washington, DC: The National Academies Press. doi: 10.17226/22222.
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Suggested Citation:"Section 3 - An Introduction to Endangered Species Regulation." National Academies of Sciences, Engineering, and Medicine. 2014. Innovative Airport Responses to Threatened and Endangered Species. Washington, DC: The National Academies Press. doi: 10.17226/22222.
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6An Introduction to Endangered Species Regulation This section provides a user-friendly introduction to the Endangered Species Act of 1973 (ESA) and other federal regula- tions and policies relevant to listed species. This includes a brief history of federal wildlife protection in the United States, a dis- cussion of the ESA and other relevant regulations, and a sum- mary of typical processes and the regulatory agency roles and responsibilities. Additional information on each of the topics in this section can be found at the referenced website locations and on CRP-CD-160: Airport Toolbox for ACRP Report 122, which is bound into this report and available on the ACRP Report 122 web page. Federal Protection for Wildlife: A Brief History In the early 1900s, the concept of extinction was brought to public attention through the near extinction of several spe- cies. The Lacey Act of 1900 (16 U.S.C. §§ 3371–3378) was the first federal law that regulated commercial animal markets, prohibiting interstate commerce of animals killed in violation of state game laws. Other legislation followed, and, by 1963, public awareness and support for wildlife conservation drove political action and a shift from “take” regulation to habitat and species preservation. The U.S. Department of the Interior appointed the Committee on Rare and Endangered Wildlife Species, which published “Rare and Endangered Fish and Wildlife of the United States,” (1966) and led to Congress pass- ing the first piece of comprehensive endangered species legis- lation, The Endangered Species Preservation Act of 1966. The first national list of threatened and endangered species was also published. In 1969, the 1966 Act was renamed the Endan- gered Species Conservation Act and amended, extending pro- tection to species “threatened with worldwide extinction.” The Endangered Species Act of 1973 The ESA (87 Stat 884), which was signed by President Nixon on December 28, 1973, recognized that U.S. wildlife and wildlife habitat is of “aesthetic, ecological, educational, recreational, and scientific value to our Nation and its peo- ple.” The ESA provided a program for the protection and recovery of threatened and endangered plants and animals and the habitats in which they occur. The ESA • Defined the terms “endangered” and “threatened” (sec- tion 3); • Made plants and invertebrates eligible for listing (section 3); • Made matching funds available to states with cooperative agreements (section 6); • Required federal agencies to use their authorities to conserve listed species and consult on “may affect” actions (section 7); • Prohibited federal agencies from authorizing, funding, or carrying out any action that would jeopardize the contin- ued existence of any listed species or destroy or modify its “critical habitat” (section 7); • Provided funding authority for land acquisition for foreign species (section 8); • Implemented CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) protec- tion (import, export, interstate, and foreign commerce of listed species) in the United States (section 8); • Applied broad “take” prohibitions to endangered animal species, which could be extended to threatened animal spe- cies by special regulation (section 9); • Provided exceptions to the prohibited acts (section 10); and • Provided for civil and criminal penalties for violations and allowed for citizen suits to enforce certain provisions of the statute. Since its enactment, there have been numerous amend- ments, legal challenges, and clarifications, but the over- all framework of the 1973 Act has remained essentially unchanged. The combined results of the amendments to the ESA have led to a flexible, permitting statute, vastly different from the ESA of 1973. S E C T I O N 3

7 Regulatory Roles and Responsibilities: Endangered Species Act The lead federal agencies for implementing the ESA are the USFWS and the NOAA NMFS (commonly known as NOAA Fisheries), collectively termed the “Services.” The USFWS has primary responsibility for terrestrial and freshwater species, while NOAA Fisheries manages marine wildlife and anadro- mous fish, such as salmon. Where there is overlap, the species may be jointly managed. The USFWS maintains a database of information on listed species under their purview. The data- base can be easily searched online by classification (e.g., verte- brates), species, state, USFWS region, listing status, or a variety of other search options (see http://ecos.fws.gov/tess_public/). The NOAA Fisheries list is also maintained and easily acces- sible online at http://www.fws.gov/endangered/esa-library/ pdf/esa_table.pdf. The ESA requires federal agencies to ensure that actions they authorize, fund, or perform are not likely to jeopardize the continued existence of any listed species (section 7(a) (2)) or result in the destruction or adverse modification of designated critical habitat of such species. This is accom- plished through consultation with the Services. When there is federal funding (e.g., an FAA grant) or control over a pro- posed action (e.g., U.S. Army Corps of Engineers [USACE] permit sought), consultation proceeds under section 7. Where there is no federal nexus, the ESA has provisions for permitting incidental take of listed wildlife species under section 10(a)(1)(B). The National Environmental Policy Act and the Endangered Species Act On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law, which required federal agencies to assess the environmental impacts of their actions in the decision-making process. NEPA establishes a national framework with goals and processes for federal agen- cies to protect the environment (83 Stat 852, 1969). The regu- lations of NEPA are binding on all federal agencies, including the FAA. FAA Order 1050.1E: Environmental Impacts: Policies and Procedures establishes guidance for the FAA for com- plying with NEPA and includes compliance with the ESA. In accordance with this guidance, the FAA is responsible for the environmental review for all proposed actions (at and related to airports) under NEPA. Depending on the anticipated level of environmental impact, the NEPA analysis can be per- formed at one of three levels: Categorical Exclusion (CatEx), Environmental Assessment (EA), or Environmental Impact Statement (EIS). Coordination with agencies outside of the FAA is required when an action involves resources protected by special purpose laws or administrative directives, which includes the ESA. At airports, the NEPA process is typically triggered during planning, design, and development of proposed improve- ments, expansions, or demolitions, and design or implemen- tation of operations and management plans. The applicability of NEPA procedures to FAA actions depends upon the type of proposed action. FAA actions subject to NEPA review (CatEx, EA, EIS) encompass most of the actions typically conducted at air- ports. FAA actions that trigger the NEPA/ESA review pro- cess include FAA approval of an Airport Layout Plan (ALP), a change to an ALP, or approval of financing for airport development. Examples include facility improvement and construction, airport development, and Passenger Facility Charge (PFC) approval. Also included are Airport Improve- ment Program (AIP) grant funding; navigational aid installa- tion; and operational/management actions such as air traffic procedures, airspace redesign, and wildlife hazard manage- ment (a wildlife hazard management plan in itself does not trigger NEPA, but the individual actions within the plan may trigger NEPA once initiated). Advisory actions, emergency actions, and FAA actions not subject to NEPA review are specialized and have dif- ferent levels of exemption from NEPA review. Additionally, actions that lie outside the Office of Airports (ARP) may also be subject to NEPA coordination, so it is important to con- sult the FAA if there are questions about an activity’s NEPA requirements. Additional information on airport NEPA can be found on CRP-CD-160: Airport Toolbox for ACRP Report 122 (bound into this report and available on the ACRP Report 122 web page) and on these websites: • http://www.faa.gov/regulations_policies/orders_notices/ index.cfm/go/document.current/documentNumber/1050.1 • http://www.faa.gov/airports/resources/publications/orders/ environmental_5050_4/ Section 7 Consultations Section 7 of the ESA imposes a series of responsibilities on federal agencies. Section 7(a)(1) directs federal agencies to utilize their authorities to carry out programs for the con- servation of threatened and endangered species. Section 7(a) (2) requires that federal agencies consult with the Services when any action the agency undertakes, funds, or authorizes (through issuance of a permit) may affect a listed endangered or threatened species. This process is called section 7 con- sultation. This is a cooperative process, and there is latitude within section 7 for the Services to work with applicants and other agencies during the process. Prior to filing an appli- cation for a federal permit or license, if an airport sponsor believes its proposed action may affect a federally listed spe- cies or critical habitat, the airport sponsor may request that FAA start early consultation with the Services. The FAA (on

8behalf of the applicant) then coordinates with the Services to determine whether a proposed action “may affect” listed species or designated critical habitat. If the FAA accepts an alternative proposed by the Services or proposes another acceptable alternative, the FAA also concludes that impacts are not significant. In 1986, the USFWS issued regulations detailing the con- sultation process, which includes both “informal” and “for- mal” consultations (50 CFR §402). When used in the context of consultation, the term “informal” refers to an optional process that is designed to help the federal action agency determine whether formal consultation is needed. Informal consultation is strongly encouraged so that projects can be designed with minimal impact to listed species. Informal consultations identify listed or candidate species or critical habitat occurrence in the action area; determine what effect the action may have on these species or critical habitats; explore avoidance and minimization options; and deter- mine whether there is a need to enter into formal consulta- tion for listed species or designated critical habitats. There is no overall timeframe for informal consultation; however, some individual process elements have statutory time limits. Consultations that are resolved by reaching a “is not likely to adversely affect” determination are said to have been resolved informally. An FAA determination of “no effect” or “is not likely to adversely affect” means that the consultation can be resolved without concurrence from the USFWS. If an action agency determines that proposed action(s) “may affect,” or “is likely to adversely affect” a listed species or adversely modify critical habitat, formal consultation is necessary. Formal consultations identify the nature and the extent of effects on listed species and critical habitat; identify reasonable and prudent alternatives if the action jeopardizes a listed species or adversely modifies critical habitat; provide reasonable and prudent measures to minimize incidental take impacts; identify conservation measures; and provide an administrative record of effects to help establish the spe- cies’ environmental baseline in future biological opinions. Regulations require that formal consultation be concluded within 90 calendar days of initiation, and a biological opinion be delivered within 45 days of that conclusion; however, it is important to note that formal consultation is not “initiated” until the file is deemed “complete.” This means that all the rel- evant data required by 50 CFR §402.14(c) has been received by USFWS. The FAA maintains a variety of information specific to airport section 7 consultations in their Environmental Desk Reference for Airport Actions (FAA Office of Airports, Office of Airport Planning and Programming, Airports Planning and Environmental Division October 2007). This guidance, which can be accessed through the FAA’s website, com- piles information on special purpose laws in one location for convenience and quick reference. Its purpose is to help FAA integrate compliance with NEPA and applicable spe- cial purpose laws into the NEPA process to the fullest extent possible. (See http://www.faa.gov/airports/environmental/ environmental_desk_ref/.) Additionally, the Services maintain a handbook titled Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities Under Section 7 of the Endangered Species Act (USFWS, NMFS March 1998). While not specific to airports, this hand- book provides a thorough and comprehensive discussion of agency internal guidance and national policy for con- ducting consultation and conferences pursuant to section 7. The purpose of the handbook is to promote efficiency and nationwide consistency within and between the Services. (See http://www.fws.gov/endangered/esa-library/pdf/esa_ section7_handbook.pdf.) Section 10 Permitting For federal actions, section 7 is triggered when an action “may affect” listed species; for non-federal actions, section 10 provides a mechanism for permitting the “incidental take” of a listed species associated with otherwise lawful activities. In the 1982 amendments to the ESA, Congress established a provision in section 10 that allows for the “incidental take” of endangered and threatened species of wildlife by non-federal entities. Section 10(a)(1)(B) of the ESA allows non-federal parties planning activities that have no federal nexus, but which could result in the incidental taking of listed animals, to apply for an incidental take permit. The application must include a Habitat Conservation Plan (HCP) laying out the proposed actions, determining the effects of those actions on affected fish and wildlife species and their habitats (often including proposed or candidate species), and defining mea- sures to minimize and mitigate adverse effects. HCPs are addressed in more detail in Section 5. Issuance of an inciden- tal take permit, in addition to being a federal action under section 7, is also a federal action subject to NEPA and there- fore requires compliance in the form of a CatEx, EA, or EIS. Because of the expanded scope and longer timeframes, par- ties often strive to find a federal nexus and coordinate under section 7 to avoid the more lengthy section 10 permitting process. An example of section 10 permitting applied to an airport project is included in Case Study #5. Further infor- mation is included CRP-CD-160: Airport Toolbox for ACRP Report 122 (bound into this report and available on the ACRP Report 122 web page) and also at the following websites: http://www.fws.gov/endangered/laws-policies/section-10.html http://www.nmfs.noaa.gov/pr/laws/esa/policies.htm

9 Other Incidental Take Mechanisms under Section 10 Classified by USFWS as Enhancement of Survival Permits (pursuant to section 10(a)(1)(A), Safe Harbor Agreements and Candidate Conservation Agreements are other poten- tial take mechanisms available to landowners, including air- ports. These actions are discussed further in the section called “Tools and Innovative Approaches.” Other Relevant Federal Regulations Under the ESA, a permit may be granted (section 10) or a statement issued (section 7) that allows the incidental take of endangered species. In some cases, however, there are other federal regulations that protect specific fish and wildlife spe- cies, which could potentially affect airport development and operation. A summary of these regulations and the circum- stances where they could apply is included in this section and consists of the following: • Migratory Bird Treaty Act (MBTA), (50 CFR 21.11) • Bald and Golden Eagle Protection Act (BGEPA), (16 U.S.C. 668-668d, 54 Stat. 250) • Marine Mammal Protection Act of 1972 (MMPA), (50 CFR Part 218) • Magnuson-Stevens Fishery Conservation and Management Act (MSA) (50 CFR Part 600) The Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act Since birds represent the wildlife group most often at con- flict with aviation safety, the MBTA and BGEPA may apply to situations where hazardous wildlife is a concern. Some ESA- listed species (and non-listed species) are protected under the MBTA, the BGEPA, or both. This protection is discussed further in the section called “Post-Listing.” Marine Mammal Protection Act of 1972 The MMPA (50 CFR 216) prohibits the taking of marine mammals, which includes harassment (“any act of pursuit, torment or annoyance which has the potential to either: a.) injure a marine mammal in the wild, or b.) disturb a marine mammal by causing disruption of behavioral patterns”). Authority to manage the MMPA is divided between USFWS (sea otters and marine otters, walruses, polar bears, three species of manatees, and dugongs), NOAA Fisheries (pin- nipeds, including seals and sea lions, and cetaceans, such as whales and dolphins), and a third federal agency, the Marine Mammal Commission (MMC), which assists the Services in MMPA implementation. While most airports would not consider impacts to marine mammals as a potential issue, airports with seaplane activities or other actions that might affect in-water habitats may fall under jurisdiction of the MMPA in addition to the ESA. Coordination under both statutes would be required. While incidental take authorizations would apply to direct impacts to marine mammals or habitats, incidental harass- ment authorization covers activities such as acoustic harass- ment due to in-water construction. Case Study #9 is an example of potential acoustic impacts to marine mammals and how they were addressed. (See http://www.nmfs.noaa. gov/pr/permits/incidental.htm.) Magnuson-Stevens Fishery Conservation and Management Act The MSA has jurisdiction over the management and con- servation of marine fish species, including areas designated as Essential Fish Habitat (EFH), which encompass most coastal waters (see http://sero.nmfs.noaa.gov/hcd/efh.htm). The trigger for EFH consultation is a federal action agency’s determination that an action or proposed action, funded, authorized, or undertaken by that agency may adversely affect EFH. There are many situations where designated EFH overlaps with the habitat (including critical habitat) of ESA- listed species, necessitating consultation under both section 7 of the ESA and Section 305(b)(2) of the MSA. Because of this dual obligation, the federal action agency and NOAA Fisheries would likely see efficiencies by integrating the two consultations to varying degrees, based upon proposed effects. State Coordination In addition to federal regulations for threatened and endan- gered species, many states have programs through which listed species are actively managed. These include both state wildlife agencies and more encompassing state “NEPA-like” regulations (e.g., the California Environmental Quality Act). While some airport actions do not affect federally listed spe- cies or their critical habitats, they may affect state-listed, or regulated, endangered or threatened species. Airport spon- sors must ensure the environmental documents prepared for such airport actions address effects on state-protected resources and that coordination with the appropriate state agency(s) occurs. Although the ESA does not address state-protected spe- cies or habitats, it recognizes the importance of engaging the states in USFWS’s efforts to conserve federally listed spe- cies and their ecosystems (16 U.S.C. § 1531, et seq.). Sec- tion 6 of the ESA mandates this cooperative relationship

10 and, under certain circumstances, authorizes USFWS to enter into a cooperative agreement with a state in further- ance of species conservation. For example, USFWS and the Florida Fish and Wildlife Conservation Commission (FWC) renewed a section 6 Agreement (May 14, 2012) that pro- vides the framework for USFWS to recognize FWC permits as federal approval of direct or incidental take of federally endangered species. While this agreement does not delegate federal authority to FWC and by itself does not authorize the FWC to issue any permits for federally listed species, FWC could seek development of a program to issue incidental take permits in the future, thereby eliminating the need for two incidental take permits—one from the state and one from the USFWS.

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