Impacts of the Endangered Species Act Roundtable

U.S. Chamber of Commerce

Energy, Clean Air & Natural Resources CommitteeW. Parker Moore

Beveridge & Diamond, P.C.(202) 789-6028 / pmoore@bdlaw.com

May 15, 2014

Species Listing/CH DesignationSpecies Listing/CH Designation

Listing: ESA’s protections apply to “listed” species• Endangered – “in danger of extinction throughout all or a

significant portion of its range” 16 U.S.C. § 1532(6)

• Threatened – “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” – 16 U.S.C. § 1532(20)

Critical Habitat: “specific areas within the geographical area occupied by the species . . . essential to the conservation of the species and . . . which may require special management considerations or protection.” – 16 U.S.C. § 1532(5)

““Take” ProhibitionTake” Prohibition

• No “take” of threatened/endangered wildlife species– Take - to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,

or collect, or attempt to engage in any such activity

• Harm - act “which actually kills or injures wildlife,” including “significant habitat modification or degradation” that actually kills/injures wildlife by “significantly impairing essential behavioral patterns including breeding, feeding or sheltering” – 50 C.F.R. § 17.3

• Harass - “intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly impair normal behavioral patterns including breeding, feeding or sheltering.” – 50 C.F.R. § 17.3

““Take” ProhibitionTake” Prohibition

• Civil and criminal penalties for unlawful take– Criminal - endangered species / threatened species

• $100,000 / $25,000 per individual

• $200,000 / $25,000 per organization

• Up to 1 year / 6 months imprisonment

– Civil - endangered species / threatened species

• Knowingly - $25,000 / $12,000

• Strict liability - $500

• Permit/license, property forfeitures

• Injunctions

So What??So What??

• CBD/WildEarth Guardians Settlement– Many lawsuits vs. FWS demanding species listing

– Resolved in comprehensive settlement of suits

– Listing decisions for 757!!! species by 2018

Will This Affect Me?Will This Affect Me?

If your project is located here, YES

What Are The Implications?What Are The Implications?

• Nationwide impacts– At least 3 species / state

– 50+ in some states (e.g., FL – 115, TN – 103, VA – 75, KY – 55, NV – 54, CA – 52)

– 81 new species listed in FY2013 – just the beginning!

• Take prohibition – applies to everyone• ESA § 7 consultation for any activity with federal

nexus that “may affect” listed species or CH– Any federal permit/authorization/approval

– Federal funds

– Federal lands

What Can You Do?What Can You Do?

• Track proposed listings in Fed. Reg.

• Comment on proposed listing decisions– Support “not warranted” determinations

• Prepare (develop protocols to avoid take if species listed)

• Candidate conservation agreements

• Incidental take permit/habitat conservation plan

• Establish/maintain excellent agency relationships!