Practical Strategies for Implementing PublicProjects Affected by FESA

IMLALas Vegas 2015

PRESENTED BY

Steve Anderson Chuck HansonPartner Principal

Hanson Environmental, Inc.

The Federal Endangered Species Act

©2015 Best Best & Krieger LLP

The Federal Endangered Species ActIntent (FESA § 2(b) - - 16 U.S.C. § 1531(b)

“The purposes of this Chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a programfor the conservation of such endangered species and threatened species [.]”

Endangered Species Act 101

• FESA is administered by:• The Fish and Wildlife Service (FWS) (U.S. Dep’t of the

Interior) for terrestrial and freshwater species• The National Marine Fisheries Service / NOAA Fisheries

(NMFS) (U.S. Dep’t of Commerce) for marine and anadromous (e.g., salmon) species

Key Sections of Federal ESA (16 U.S.C. §§ 1531-1544)

• Section 3:

• Section 4:

Definitions

Listing; Critical Habitat; Recovery Plans

Federal Actions; Biological

Opinions; Endangered Species Committee “Take” of Listed Species

Habitat Conservation Plans

• Section 7:

• Section 9:

• Section 10:

• Section 11: Civil/Criminal Penalties and Citizen Suits

Listing Criteria (Section 4)• Anyone (wildlife agencies, citizen, envt’l group etc.) can petition to list a new species as

“endangered” (currently in danger of extinction) or “threatened” (likely to become endangered soon)• Even non-pest insects can be listed• Listing criteria (review based on the best scientific and commercial data available)

1.Extent of curtailment or destruction of the species’ habitat2.Overuse of the species for commercial, recreational or other uses3. Disease or predation4. Inadequacy of existing regulations5. Any other factor affecting the species’ continued existence

Critical Habitat (Section 4)

• “Critical habitat” includes areas occupied by the species at the time of listing that are essential to its conservation and require special protection, as well as unoccupied areas needed for conservation

• Service is to designate critical habitat for the species based on the best scientific data available after considering economic, social, and political impacts of the proposed critical habitat designation on current or proposed human activities

Recovery (Section 4)

• ESA Section 4(f) requires that the wildlife agencies develop and implement recovery plans for the conservation and survival of listed species

• Recovery plans do not have the force of law

Substantive Requirements (Section 7)

• Section 7(a)(2) requires federal agencies to “insure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence” of any listed species

• Agencies are also prohibited from taking action that will result in the destruction or adverse modification of critical habitat

Section 7

What is a Federal Action subject to Section 7?

• Federal funding, federal project or federal permit

• For example, if your project needs a Clean Water Section 404 permit from the Corps of Engineers, it is a federalized project under FESA

Section 7 Formal Consultation Process

• Biological Assessment prepared by action agency

• Biological Opinion or “BiOp” usually issued

• “Jeopardy” BiOps include reasonable and prudent alternatives (RPAs)

• The Secretary will issue an incidental take statement only if the action (or RPA) and the incidental take will not jeopardize the listed species or adversely modify its critical habitat

Exemptions (Section 7)

• The ESA exemption process (rarely invoked or granted) includes:

▪ Application made by a federal agency, permit or license applicant, or governor of the affected state

▪ Determination and formal adjudication by the Secretary that Section 7 requirements have been met

▪ Report submitted to the Endangered Species Committee (Secretaries of Agriculture, Interior, and the Army, the Chairman of the Council of Economic Advisors, the heads of the Environmental Protection Agency and the National Oceanic and Atmospheric Administration, and a representative from the affected state).

• The Endangered Species Committee (“God Squad”) has the power to grant the exemption, though this exemption has only been granted a few times

Section 9 Take Prohibition• All persons are prohibited from “taking” listed fish

or wildlife species no matter where located and from removing, damaging, or destroying any listed plant species located on federal property

• “Take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”

• “Harm” includes any type of habitat degradation, modification, or other activity that actually kills or injures wildlife

• “Person” includes any individual; corporation; any officer, employee, agency, department of the federal government or of any state or local government; or any state or local government

Section 9 Take Prohibition continued

• Specific intent to harm, injure, or kill a member of a species need not be present for a taking to occur (only need intentional act and impacted species); habitat modification alone may amount to prohibited take (Palila v. Hawaii Dept. of Land & Natural Resources, 639 F.2d 495 (9th Cir. 1981))

Section 10 Exceptions to Take Prohibition

• Section 10(a) allows private, state, and local entities to receive incidental take permits

• Section 10(a) provides that otherwise prohibited takings of endangered and threatened fish and wildlife may be allowed by permit if they are “incidental to, and not the purpose of” an otherwise lawful activity

Application Process for Section 10(a) Incidental Take Permit

• Must submit a habitat conservation plan (HCP) to the Secretary specifying:

▪Likely impacts of the anticipated taking▪Steps applicant will take to mitigate impacts and available

funding▪Alternative actions considered and why these alternatives

were rejected▪Any other measures the Secretary requires to be addressed

in HCP

Section 11• Civil Penalties

▪ Up to $25,000 (per violation) against any person who knowingly violates any provision of the ESA or regulation

▪ “knowingly” means only that the person knows he or she is killing or harming an animal, not that the killing or harming is unlawful

• Criminal Penalties

▪ Up to $50,000 (total) and/or one year’s imprisonment for such acts

• Section 11 also provides for “citizens lawsuits” to compel the Secretary of the Interior to enforce the ESA or against certain alleged violators

PRACTICAL TIPS• Avoid listed species and try not to adversely modify

critical habitat, if possible▪ Gather your project team early▪ Work with biological consultants before acquiring land and before

designing final project▪ Reconfigure your project to avoid species, if you can▪ Understand protocol survey requirements

• Decide whether you want to “federalize” your project▪ FESA §7 Consultation may be a faster regulatory process with a lower

biological bar than a §10 process

• Consider in advance whether multiple city projects may be impacted in the future by the same listed species or group of listed species▪ HCP appropriate?▪ Conservation Bank?

Proposed Land Use

Table 2: Key Land Use Differences – Proposed and No FerryService Alternative

Existing Wastewater Outfalls

Proposed Wastewater Outfalls

Example Best Management Practices (BMPs)Minimize and Avoid Impacts

• Follow manufacturer’s recommendations on use, storage and disposal of chemical products used in construction;

• All refueling and maintenance activities shall occur at a dedicated area that is equipped with containment improvements and readily available spill control equipment and products. Overtopping construction equipment gas fuel tanks shall be avoided;

• During routine maintenance of construction equipment, properly contain and remove grease and oils;

Examples of BMPs

• Properly dispose of discarded containers of fuels and other chemicals;

• Conduct an annual review of the Harbor Safety Plan;

• Update contingency plans and reviews of emergency response services. Review contingency plans, conduct drill exercises, and review emergency response agreements. Review emergency response equipment availability;

• Develop a program for training on fueling methods to minimize spill;

Proposed Ferry Terminal

Pile Driving

Breakwater

Overhead Structures/Shading

Table 3: Construction Quantities and Durations Variants B1-B3

Construction ActivityVolume of Fill (CYP Impacted Area (AC)

DurationB1 B2 B3 B1 B2 B3

Dredging 32,000 32,000 32,000 4.2 4.9 4.9 1-2 Months

Breakwater 7,800 7,900 100,000 0.6 0.7 3.8 3-5 Months

Ferry Docking FacilityPiles (400 Piles) 1,000 1,000 1,000 0.02 0.02 0.02 1-2 Months

Edge Treatment 8,700 8,700 8,700 0.48 0.48 0.48 4-6 Weeks

Slope Treatment 9,500 9,500 9,500 0.64 0.64 0.64 5-7 Weeks

Gangway Abutment &Building (100 Piles) 250 250 250 0.01 0.01 0.01 4 Weeks

Endangered Species Act Compliance

• Federal Nexus with U.S. Army Corps of Engineers permit for dredging and ferry terminal;

• Section 7 of ESA;

• U.S. Fish and Wildlife Serviceo ESA/critical habitat terrestrial species;o Biological Opinion/incidental take statement.

• National Marine Fisheries Serviceo ESA/critical habitat marine aquatic species;o Essential Fish Habitat (EFH); ando Biological Opinion/incidental take statement.

• California ESAo California Department of Fish and Wildlife;o Incidental Take Permit (ITP).

Key Sources of Biological Information

• Project EIR/EIS;

• Site-specific biological surveys;

• Regional monitoring programs;

• Academic/Agency research;

• Agency species lists; and

• California Natural Diversity Database (CNDD)

Invertebrates Fish Haliotes cracherodii Acipenser medirostriso black abalone (E) (NMFS) o green sturgeon (T) (NMFS) Haliotes sorenseni Eucyclogobius newberryio white abalone (E) (NMFS) o tidewater goby (E) Icaricia icarioides missionensis Hypomesus transpacificuso mission blue butterfly (E) o delta smelt (T) (USFWS) Speyeria callippe callippe o callippe silverspot butterfly (E)

U.S. Fish & Wildlife ServiceSacramento Fish & Wildlife Office

Federal Endangered and Threatened Species that Occur in, or may be Affected by Projects in the Counties and/or U.S.G.S. 7 1/2 Minute Quads you requested

Document Number: 140918060639

Current as of: September 18, 2014

Quad Lists

Site-Specific Surveys

In addition, the San Francisco Breading Bird Atlas lists 22 species as confirmed or probable breeding birds on Treasure Island

• Double-crested cormorant • Bushtit

• Pelagic cormorant • American robin

• Brandt’s cormorant • Sitta Canadensis, Red-breasted nuthatch

• Black-crowned night-heron • European starling

• Killdeer • White-crowned sparrow

• Western gull • Song sparrow

• Mourning dove • Red-winged blackbird

• Anna’s hummingbird • Brewer’s blackbird

• Allen’s hummingbird • House finch

• Common raven • American goldfinch

• Chestnut-backed chickadee • House sparrow

Aquatic Habitat Function and Use

• Adult and juvenile foraging;

• Spawning;

• Egg incubation and larval development;

• Juvenile nursery areas; and

•Migratory corridors.

Primary factors affecting species composition, geographic distribution, and use of habitat within the estuary are varied but include:

Factors Affecting Impacts/Take

ESA Protected Species

• Green Sturgeon (Acipenser medirooostris);

• Steelhead, Central California Coast ESU (Oncorhynchus mykiss);

• Steelhead, California Central Valley ESU (Oncorhynchus mykiss);

• Chinook salmon, Central Valley (Sacramento) spring-run (Oncorhynchus tshawytscha); and

• Chinook salmon Sacramento River winter-run (Oncorhunchus tshawytscha).

Critical Habitat

• Green Sturgeon (Acipenser medirooostris);

• Steelhead, Central California Coast ESU (Oncorhynchus mykiss);

• Steelhead, California Central Valley ESU (Oncorhynchus mykiss);

• Chinook salmon, Central Valley (Sacramento) spring-run (Oncorhynchus tshawytscha); and

• Chinook salmon Sacramento River winter-run (Oncorhunchus tshawytscha).

The assessment included consideration of the following potential impact mechansism:

• Increase suspended sediment concentrations and turbidity;

• Contaminants and toxicity;

• Changes to dissolved oxygen levels;

• Spread of invasive species;

• Increased shading;

• Effects of sound pressure (noise);

• Migration and habitat use;

• Benthic disturbance; and

• Effects on habits of particular concern.

Based on results of the assessment it was concluded that the proposed project may affect, but is not like to adversely affect, protected and managed fish species directly through:

• Avoidance behavior of sublethal increases in suspended sediments and turbidity associated with dredging activity;

• Behavioral avoidance of the construction area during installation of concrete piles using the impact hammer;

• Increased shading;

• Migration and habitat use; and

• Benthic disturbance.

Table of Contents ES 1.‐ EXECUTIVE SUMMARY IV1.0 INTRODUCTION2.0 CONSULTATION HISTORY3.0 ACTION AREA4.0 PROJECT DESCRIPTION5.0 EXISTING CONDITIONS6.0 EFFECTS ANALYSIS7.0 CUMULATIVE EFFECTS8.0 CONCLUSIONS AND DETERMINATIONS9.0 LITERATURE CITED

APPENDIX A

Thank you for attending.

Steve AndersonPartnerBest Best & Krieger LLP3390 University AvenueRiverside CA, 92501Phone: (951) 826-8279steve.anderson@bbklaw.com www.bbklaw.com

Chuck Hanson, Ph.D.Senior Biologist, Principal Hanson Environmental 446 Green View Court Walnut Creek, CA 94596 Phone: (510) 604-4298chanson@hansonenv.com www.HansonEnvironmentalInc.com