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Endangered Species Act

Congress adopted the Endangered Species Act (ESA) in 1973 to provide a comprehensive framework to conserve and protect endangered and threatened species and their habitats. The ESA strives to achieve this goal through different means. Section 4 of the Act requires expert wildlife and fish agencies (the U.S. Fish and Wildlife Service and the National Marine Fisheries Service) to determine which species qualify as endangered or threatened and list them as such. At the time of listing or at some point in future, these agencies can also designate land as critical habitat for the species. Designating critical habitat can be a powerful tool in times of changing climate, when new areas can start supporting the protected species. Whether land that may in the future support protected species can be designated as critical habitat has been a point of debate during the last few Presidential Administrations, and rules governing critical habitat designations have been in flux. This is one area we are tracking for our S3 members.

Another way to ensure species protection under the ESA is through Section 7 consultation. This consultation requirement places an obligation on federal agencies to consult with fish and wildlife expert agencies regarding the impact on protected species from projects they are authorizing, funding, or carrying out. The goal here is to ensure that activities of federal agencies are not likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. The consultation requirement applies to projects that require a federal permit (such as a Clean Water Act Section 404 Permit) or a license (such as FERC license) or use federal funds. Section 7 consultations involve the preparation of significantly detailed environmental documents such as a Biological Assessment or a Biological Opinion. Virtually every S3 member had to work through a Section 7 consultation one way or another, and knows well that it is common to have citizen groups challenge the adequacy of consultation in court, which can lead to project delays and increased project costs. If at the conclusion of the consultation impacts to protected species cannot be avoided, federal agencies can require that projects be modified. Regulations governing how federal agencies conduct Section 7 consultations change from time to time. To speed up infrastructure projects, the Trump Administration revised the regulations in 2019. They were then challenged in court by numerous parties and were then reversed by the Biden Administration, with a promise to put more protective regulations in place. We are tracking these final regulations for our S3 members.

Another critical aspect of the ESA is its prohibition on “taking” a protected species except when under a permission to do so. Because of this prohibition the ESA has been frequently called the bulldog of all environmental laws. The statute defines take broadly to include harassing, harming, wounding, killing, trapping, capturing, or collecting a protected species. For federal projects, Section 7 consultation may include a permission (an Incidental Take Statement) allowing take. But private projects – think wind farm operators or land developers – may need to apply for an incidental take permit for their lawful activities to proceed without risking ESA enforcement. To obtain an incidental take permit, these private entities are required to prepare a comprehensive document — Habitat Conservation Plan — to assess the project’s impacts, and minimize and mitigate such take.

This take prohibition came into the spotlight when the U.S. Fish and Wildlife Service started listing various species of imperiled tree roosting bats as endangered (the Northern Long Eared Bat, the Tricolored Bat, the Little Brown Bat). With these listings, many projects that routinely clear trees for residential, commercial, or mixed developments had to stop their activities and reassess whether they may cause take of bats, whether they can proceed clearing trees without any restrictions, or whether they need to delay clearing activities until bats move into caves for winter hibernation. A few years ago, most developers would unlikely consider engaging into such an assessment. These are just a few examples of what the ESA stands for, how its protections can manifest themselves in practice, and the issues we keep our members apprised of.

Bald and Golden Eagle Protection Act

The Bald and Golden Eagle Protection Act (Eagle Act) prohibits anyone without a permit from “taking” bald or golden eagles, including their parts (including feathers), nests, or eggs. The Eagle Act defines “take” as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.”

The U.S. Fish and Wildlife Service administers an Eagle Act permitting program. Effective April 12, 2024, a new eagle take permitting regime will be in place. The most significant change to the eagle permitting program from the old version is the establishment of a general permitting program for certain qualifying wind energy projects, power line infrastructure, bald eagle nest take, and bald eagle disturbance. The general permit program allows prospective permittees to self-certify compliance with standardized terms and conditions, pay certain specified application fees, and obtain compensatory mitigation credits. The final rule also maintains the availability of specific permits for activities that do not qualify for general permits and for projects that do not meet the standardized conditions. Implementation of the new permitting program is expected to occur in stages.

Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA) is a unique criminal liability statute that, similar to the ESA and BGEPA, prohibits the taking, killing, injuring, capturing, or otherwise harming of over 1,000 protected migratory birds, from a common American Robin to a less known Killdeer. The U.S. Fish and Wildlife Service implements the statute and maintains and updates a list of migratory birds. Although the statute was adopted in 1918 to prevent trade in exotic bird feathers at that time commonly used as fashion accessories, it is becoming a means of punishing companies that harm birds as a result of operating their facilities. There has been a long-standing debate over whether the MBTA prohibits killing a bird incidentally (for example, when operating a wind farm turbine, maintaining a power line, or during permitted construction). The current Administration says such unintentional take is prohibited, although the Trump administration did not think so. The courts are also split on this issue. Unlike the ESA and BGEPA, the MBTA does not prescribe a permitting scheme for incidental take. In 2021, in an attempt to settle the debate, the U.S. Fish and Wildlife Service issued an advance notice announcing its desire to create a permitting scheme under the MBTA. Some states followed suit, but the federal proposal has not yet been finalized. We are closely tracking this issue for S3. In the absence of a uniform permitting scheme, companies with operations and facilities that may harm migratory birds are left to follow best management practices and work closely with state wildlife agencies to avoid or minimize impact to migratory birds. As with eagles, it is not uncommon for a project located near a waterway to one morning discover an Osprey building a nest on a power pole.

Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA) prohibits the “take” of marine mammals, including harassment, hunting, capturing, collecting, or killing, in U.S. waters and by U.S. citizens on the high seas without authorization. The National Oceanic and Atmospheric Administration (NOAA) Fisheries issues Incidental Harassment Authorization and Letter of Authorization for the take of marine mammal species.

The MMPA has recently received a significant amount of attention due to the burgeoning offshore wind industry. The S3 group has been staying current on the several lawsuits surrounding wind projects where species matters are prominent. Additionally, S3 has been following the partnership efforts between the Bureau of Ocean Energy Management (the federal agency administering offshore leasing) and NOAA Fisheries, seeking to streamline permitting efforts.

National Environmental Policy Act (NEPA)

The National Environmental Policy Act (NEPA) requires federal agencies to take a “hard look” at the environmental impacts of certain “major Federal actions significantly affecting the quality of the human environment.” In 2022, the Biden Administration initiated a rulemaking to revise the regulations implementing NEPA. “Phase 1” of this rulemaking was finalized in April 2022 and restored the definitions of “direct, indirect, and cumulative” effects initially promulgated in 1978 and the requirement that agencies consider those effects as part of their NEPA reviews. The Phase 1 rule clarified that “cumulative effects” include those related to climate change and environmental justice.

In 2023, CEQ released its final “Phase 2” rule, which includes revisions consistent with the amendments to NEPA made by the Fiscal Responsibility Act of June 2023, including the principle that for purposes of NEPA, agencies must consider effects that are “reasonably foreseeable.” The rule clarifies that agencies should consider “reasonably foreseeable future climate conditions” on the affected area, rather than simply describing those conditions or trends at the national or global level, and should also include an analysis of how climate change might affect the proposed action and alternatives, including, for example, the potential for increased flooding, wildfire, or drought, and to address risk reduction, resiliency, or adaptation measures that may be appropriate.