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Endangered Species Act: impacts of compliance in Alaska.

Alaska is beginning to experience the emerging application of the federal Endangered Species Act (ESA), with effects that are likely to increase in the coming years. While much media attention has been paid recently to addressing climate change on a global and national scale, advocacy groups have turned to an existing environmental law, the ESA, to address the impacts of climate change on plant and animal species in the Lower 48 states, as well as in Alaska. The effects of the application of the ESA to climate change issues could be felt acutely in Alaska, far more than other states.

Currently, there are 20 Alaska species listed under the ESA, ranging from polar bear and bowhead whales in the north to beluga whales and sea otters in Southcentral and Southeast, with 10 additional species currently being considered for protection. Several of these species have been proposed recently based on the anticipated effects of climate change on their habitat, such as declining areas of sea ice coverage. While Alaska is no stranger to the ESA, the recent listing actions will bring increased federal involvement and oversight to activities and land use in the state. In response, the State of Alaska has filed lawsuits to challenge the federal government's listing of polar bear and Cook Inlet beluga whale under the ESA.


For landowners and companies seeking to do business in the state, the ESA carries compliance obligations that must be understood prior to conducting activities that may affect a threatened or endangered species. Due to the large amount of federal lands in Alaska and the types of development projects, such as natural resources exploration and extraction that require federal permits the number of projects subject to ESA requirements will increase in the future as more species are listed under the ESA. As application of the ESA becomes more widespread, the associated compliance-related delays and project modifications could well increase the cost of doing business in Alaska.


In order to successfully manage these potential impacts, it is important to understand these federal actions in advance.


The ESA, administered by the United States Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), has been called by its proponents "the pit bull of federal environmental law" for its single-minded requirement to place federally required species conservation as a priority over all types of economic activity. In general, the ESA requires the conservation of listed threatened and endangered species and the protection of the habitat on which the species depend. The ESA defines species broadly, including subspecies and distinct population segments of vertebrates, which allows the USFWS and NMFS to protect discrete populations of listed species in portions of their range. Once a species has been listed, the ESA prohibits private or public actions that harm or harass the protected species.



To be protected under the ESA, a species must be "listed," either as endangered or threatened. An endangered species is a species which is in danger of extinction throughout all or a significant portion of its range. A threatened species is a species likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Additionally, a species can be designated as a candidate for listing. While this does not implicate ESA protections, a candidate species is eligible for conservation agreements that may prevent a future listing.

Under Section 4 of the ESA, the listing process is triggered upon petition by a private citizen or on the initiative of USFWS or NMFS. In determining whether listing is warranted, one of the following five factors must exist: (1) present or threatened destruction, modification, or curtailment of habitat or range; (2) overutilization for commercial, recreational, scientific or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting continued existence.

For example, the polar bear was listed as threatened based on the declining amount of sea ice in the Arctic, its principal habitat. The listing determination must be based upon the best scientific and commercial data and take into account other efforts being made to protect the species.

If a species is listed, the ESA typically requires the designation of critical habitat. Critical habitat includes specific areas containing features essential to the conservation of the species and that may require special management considerations or protection. The designation of critical habitat must be based on the best scientific data available after taking into consideration the economic impact, and any other relevant impacts, of specifying any particular area as critical habitat. Only activities involving a federal permit, license or funding are affected by a critical habitat designation. Currently, NMFS and USFWS are considering final critical habitat designations for Cook Inlet beluga whales and polar bears, respectively.


Of the impacts associated with the listing of a species, the consultation requirement can have the greatest effect on businesses and landowners. Under Section 7 of the ESA, every federal agency has an obligation to ensure that its actions do not jeopardize the continued existence of a listed species or result in the destruction or adverse modification of a listed species' critical habitat. To fulfill this obligation, a federal agency must consult with USFWS or NMFS when its action may affect a listed species or its critical habitat. For example, consultation can be triggered if a private action requires a federal permit, occurs on federal land, or involves federal funding. The consultation process can result in the preparation of a biological opinion, which may impose additional terms and conditions upon the proposed project.

Consultation, in effect, creates a second permitting requirement, since, in addition to the federal permit already required, the applicant would also have to comply with the requirements of the biological opinion. For example, the biological opinion will contain an incidental take statement, which allows for the take of listed species in conjunction with otherwise lawful federal actions. The liability protection provided by the incidental take statement is only applicable so long as there is compliance with the biological opinion's terms and conditions. Any such terms and conditions must be designed to minimize the amount or extent of the anticipated take of the listed species.

The consultation requirement, and the imposed terms and conditions, have the potential to significantly impact a proposed project. The consultation itself is typically a laborious process that involves the collection and review of detailed, scientific data, which, along with the preparation of the biological opinion, can delay the anticipated start of a proposed project. In addition, depending on what additional conditions are required for the protection of the listed species or its critical habitat, the biological opinion can impose significant costs and alterations on a proposed project by, for example, prohibiting certain activities in specified areas or requiring the inclusion of expensive technological modifications.



Once a species has been listed as endangered, Section 9 of the ESA prohibits any person, including government agencies, from "taking" any endangered species. The term "take" is defined broadly to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct." Importantly, a take can occur if a species is impacted directly or if significant habitat modification or degradation occurs, which actually kills or injures wildlife by significantly affecting essential behavioral patterns, including breeding, feeding or sheltering. Examples of these types of activities include: the discharge of pollutants; the removal or alteration of rocks, soil, gravel, vegetation or other physical structures; and constructing, maintaining or using inadequate bridges, roads or trails on stream banks or unstable hill slopes adjacent to or above a listed species habitat. The ESA imposes substantial civil and criminal penalties on any person who "knowingly" violates the prohibitions on take.

For threatened species, Section 4(d) of the ESA provides the USFWS and NMFS with greater flexibility when determining what activities constitute a taking. Instead of the complete prohibition on take that applies to endangered species, the USFWS and NMFS are able to promulgate regulations that are "necessary and advisable" to conserve threatened species. These "4(d) rules" allow the federal agencies to adopt less-restrictive measures to ensure the protection of threatened species. Importantly, the development of a 4(d) rule is a public process, allowing interested parties to participate and provide comments on the proposed measures. The recent 4(d) rule for polar bear, while currently the subject of a legal challenge, provides an example of the type of protection from take liability that can be provided under section 4(d).


While the ESA's prohibition on take can be onerous, the ESA provides several exceptions that can allow take to occur in certain specified circumstances. First, a party can take a listed species if they have received, and complied with the terms and conditions of, a Section 10 incidental take permit. The USFWS or NMFS can issue an incidental take permit if the contemplated taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. To apply for a permit, the party must submit a description of the activity sought to be authorized, the species sought to be covered by the permit, and a habitat conservation plan. The habitat conservation plan must describe the likely impact of the taking, the measures the applicant will employ to minimize or mitigate any such impact, and any procedures for resolving problems posed by unforeseen circumstances. Second, the ESA allows Alaska Natives to take any endangered or threatened species if the taking is primarily for subsistence purposes. Third, a person may take a threatened or endangered species in defense of his own life or the lives of others. The self-defense exception is typically not available for the protection of property or pets. In addition, as discussed above, a lawful taking can occur subject to an incidental take statement contained in a biological opinion.


While the impacts of ESA compliance can be significant, entities in other regions of the country, such as the Pacific Northwest, have successfully addressed similar requirements. In general, landowners and companies that take a proactive approach regarding ESA compliance are better able to effectively and efficiently manage their ESA obligations. For example, when considering an action that may affect a listed species, the landowner or company should actively engage the appropriate federal agency early in the project-development process. The applicant should also work cooperatively with the federal agency to ensure that the best available science is used to assess any impacts to listed species. Finally, landowners and companies should design their projects to minimize any impacts to listed species to the greatest extent possible. These actions, coupled with an understanding of the relevant regulatory requirements, will help landowners and companies avoid some of the costs and delays usually associated with ESA compliance. For entities that do not fully appreciate the role of the ESA or that do not proactively attempt to address their compliance obligations, the ESA can serve as a significant barrier to project permitting and construction.

Tyson Kade is an attorney with Van Ness Feldman P.C. in Seattle. His practice focuses on federal and state environmental and natural resources law. Kade recently gave a presentation on "Arctic Species: Incidental Take Compliance Strategies" at the Endangered Species Act--Impacts on Alaska seminar in Anchorage.
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Comment:Endangered Species Act: impacts of compliance in Alaska.(SPECIAL SECTION: ENVIRONMENTAL)
Author:Kade, Tyson
Publication:Alaska Business Monthly
Date:Aug 1, 2010
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