Endangered Species Act Amendments:
Habitat Preservation

Section Table of Contents

HR. 2351

Definitions

Designation of critical habitat; interim habitat

Basis for incidental take permits

Conservation plan requirements

Report requirements

Modification of permits

Revocation

Low-effect, small scale permits

Monitoring

Bond requirements

Habitat Conservation Plan Fund

Multispecies plans

Notice; public participation

Community Assistance Program

Natural resources damages

Tax incentives

The House bill contains fewer provisions on habitat conservation agreements than does the Senate bill. For example, it does not contain safe harbor provisions or habitat reserve agreements.

Definitions. Section 101 of the bill (p.5) would redefine the term "critical habitat" in § 3(5) of the ESA. The current definition begins by stating that the term critical habitat "means..." ,while the new definition would begin that the term critical habitat "includes...," thereby making the definition more open-ended. However, it would eliminate the final portion of the subsection. The eliminated subparagraphs currently state, respectively, that critical habitat may be established for species for which it was not established previously, and that critical habitat would not usually include the entire geographical area which can be occupied by the listed species. The first action may simply eliminate a basically unnecessary provision. The elimination of the second provision, combined with the change from "means" to "includes" arguably would allow more generous critical habitat designations that could encompass the entire geographical area a species could occupy. This could result in more frequent § 7 consultations and possibly in a broader reach of the term "harm," in that it may be easier to show that destruction of habitat actually kills or injures species if the habitat has been designated as critical.

Other defmitions also would affect habitat. "Cumulative impacts" would be defined (p.6-7) as those direct and indirect impacts on a species or its habitat that result from the incremental impact of the proposed action when added to other past, present, and reasonably foreseeable future actions, regardless of what person undertakes such other actions. "Impacts" is defined, for purposes of the preceding definition, as 'including' the loss of individual members of the species or "diminishment of the species' habitat, both qualitatively and quantitatively." There are no limiting words with respect to the diminishment of habitat. Another element of impacts would be "disruption of normal behavioral patterns, including but not limited to breeding, feeding, or sheltering...." This language is similar to part of the defmition of "harm" in current regulations,²³ but is more far-reaching in that there is no indication of any threshold level of disruption that must be found.

Direct and indirect impacts also are defined. Direct impacts would be those that are caused by the proposed action and that occur at the same time and place. Indirect impacts would be those that are caused by the proposed action and that occur later in time than, or farther removed in distance from the proposed action, but that are still reasonably foreseeable. Read together, these new defined terms could encompass a broad spectrum of actions. The import of this depends on the context in which the terms are used. In some provisions, the terms are used in connection with required studies and this may or may not constitute a significant burden. In other instances, as will be discussed, the defmitions are also relevant to required actions. For example, new § 10(a)(2), would require an applicant to analyze, minimize and mitigate individual and cumulative impacts, and these requirements could be extensive.

Another term that would affect habitat is the new defmition of "recovery" as meaning that the threats to a species as analyzed under section (4)(a) of the ESA "have been elimlnated," the species has achieved long-term viability, and the protective measures under this Act are no longer needed. The threats referred to in § 4(a) of the ESA include the "present or threatened destruction, modification, or cuatailment of its habitat or range." What is meant by the requirement that this threat be "eliminated" is unclear. A literal reading of this language suggests that all destruction, modification, or curtailment of a species' habitat be eliminated in order to find the species recovered. This standard could be extremely difficult to meet.

Designation of critical habitat; interim habitat. Section 102 addresses designation of critical habitat and "survival habitat" (pp.9-11). Section 4 of the ESA would be amended to require the Secretary, concurrently with listing, to designate "interim habitat" for a species. A new definition of"interim habitat" would also be added as new § 3(28) (p. 9). This term is defined as including "the habitat necessary to support either current populations of a species or populations which are necessary to ensure survival, whichever is larger." Because this definition again uses an "includes" format, it may encompass other habitat as well. Interim habitat could be characterized as survival habitat, and critical habitat could be characterized as recovery habitat. Designation of interim habitat would be based only on biological factors, with special consideration for currently occupied habitat. Interim habitat would be replaced by critical habitat when a final recovery plan was adopted. There appear to be no regulatory consequences to an area (federal or not) being designated as interim habitat, because that habitat is not related to other provisions of the Act; there are no requirements for consultation, conference, avoidance ofjeopardy, etc. Instead, it appears that this designation merely informs the public that the designated areas are important to the species.

Section 102 (p. 9) would eliminate the options in current law § 4(a)(3) to omit critical habitat designation where it is not "prudent" (e.g., when theft of organisms is a significant conservation problem) or to delay it for 1 year when critical habitat is not determinable. It would do so by eliminating both options. The FWS or NMFS could address the problem of theft or wanton destruction once the listed species' most important habitats have been published in the Federal Register. For certain marine species, critical habitat need be designated only "to the maximum extent biologically determinable...." As current law provides, areas may be excluded from critical habitat on econoinic grounds, but §102 (p10) amends ESA's §4(b)(2) so that the exclusion could occur only if it did not "impair the species' recovery", a more stringent standard than under current law. Like S. 1180, it would require (in § 102, p.9) critical habitat to be designated at the time the recovery plan was issued

Basis for incidental take permits. Section 108 of the bill (p.23) addresses permits and conservation plans and would make certain changes to the current § 10 provisions. Current § 10(a)(1)(A) on permits to do otherwise prohibited acts for scientific and other purposes, and (B) on incidental take permits would be retained. These current provisions make it clear that § 10 allows acts and takings that would otherwise be prohibited by § 9. New language would be added to subsection (a)(1), and hence apparently apply to both scientific and incidental take situations, to direct the Secretary to limit the duration of a permit "as necessary to ensure that changes in circurnstances that could occur in the period and that would jeopardize the continued existence of the species are reasonably foreseeable." This provision may mean that a permit should be of short enough duration to make the effects of changed circumstances foreseeable, presumably so that the Secretary can then respond to these circumstances in the provisions of new permits issued thereafter. This provision highlights the difficulty in crafting conservation plans and permits in a way that provides a term that is long enough to assure habitat over time, yet is short enough to respond to changed circumstances.

Under new § l0(a)(2)(A), no permit for incidental take under § l0(a)(l)(B) (concerning incidental takes) could be issued unless the required application and conservation plan was based on "the best scientific and commercial information available." (p 24.) This standard could be difficult and expensive for individuals or small-scale applicants.

Conservation plan requirements. New § 10(a)(2)(B) would set out new requirements for conservation plans "under this paragraph." Which plans are included here is not clear. Paragraph (a)(2) cross references paragraph (1)(B) on permits that allow incidental take. Low-effects permits would be included within § l0(a)(1)(B), yet imposing all the requirements of (a)(2)(B) to those permits and supporting plans arguably would be burdensome. Also, the separate provisions set out in new § l0(a)(2)(C) (p. 26) could be seen as additional requirements for permits (as opposed to plans) issued for incidental take. Perhaps this point and the intended relationship between the new requirements of § 10 (a)(2)(B) and (a)(2)(C) could be clarified.

In any event, plans would have to include a description of the specific activities to be authorized; a description and analysis of a reasonable range of alternative actions that would avoid takes; the individual and cumulative impacts (see definitions of cumulative impacts), including the impacts of modification or destruction of habitat of species; objective, measurable biological goals to be achieved for each species covered by the plan; conservation measures the applicant will implement to mnize and mitigate the impacts, including conservation measures for achieving the biological goals and any additional requirements, restrictions, or other adaptive management provisions that are necessary to respond to all reasonably foreseeable changes in circumstances that could jeopardize covered species, including new scientific information and changed conditions; the foreseeable costs; monitoring the applicant will perform to assess the effectiveness of the conservation measures in achieving the plan's goals and impacts on recovery of each species; funding; and other matters the Secretary may require.

Because of the breadth of the definitions of terms (such as cumulative impacts as discussed above, pp.6-7) used here, the requirement to specify the individual and cumulative impacts of proposed activities could be quite extensive. Arguably an applicant would have to analyze any diminjshment of habitat and any direct or indirect impacts on the species involved and its habitat, whether from the proposed action or from any other reasonably foreseeable actions, regardless of who undertakes the actions. It is not clear what might be encompassed by "actions," which might refer only to human actions rather than natural events. If natural events are included, this requirement could be difficult to meet.

Also, under new § l0(a)(2)(C) (p. 26), the Secretary could not issue a permit under paragraph (l)(B) - on incidental taking - unless the Secretary fmds that the plan meets all of the requirements "of this paragraph" (apparently meaning paragraph (2) that cross references incidental take permits) and also "finds" several additional things: the taking will be incidental; the applicant will minimize and mitigate the individual impacts and cumulative impacts of takings; the activities to be authorized are consistent with the recovery of the species and will result in no net loss of value to the species of the habitat occupied by the species; the applicant has filed performance bond or surety to ensure adequate funding for each element of the plan; and the permit will ensure implementation of the conservation plan. The first two requirements are similar to current law; the last three would be new. The requirement in new § l0(a)(2)(C)(iii) that the agreements are to be consistent with recovery and will result in no net loss of habitat value would set a standard for such agreements. How the standard would apply in practice could be problematic in that, arguably, it would be likely to work best in an area where most landowners were participating in order that the burdens not fall disparately on those owners who enter agreements. Here too, the intended applicability to low effect permits could be more clear. (The bonding requirements are discussed below.)

Note that here, as in the requirements for plans, because of the definition of "minimize and mitigate" (p. 8), the emphasis would be on avoiding takes through better design of projects and activities. Also, the activities to be authorized would have to be consistent with the recovery of the species and there would have to be no net loss of the value to the species of the habitat occupied by the species. (Presumably this last language refers to "in the plan area.") There is no elaboration on how the no net loss of habitat value will be determined.

Report requirements. New § 10(a)(2)(D) (p. 27) would require a permittee to provide to the Secretary "at least every year" a "complete report," which will be made public, on the biological status of the species in the affected area, the impacts of the plan and permitted actions on the species, and whether the biological goals of the plan are being met. There is no threshold requirement for these reports, it is not clear how extensive these "complete" reports must be, and there is no exemption for holders of low effects permits. Arguably, this requirement could be burdensome in the context of low-effect permits. New § l0(a)(3) (p.28) would direct the Secretary annually to report on the status of permits generally and to review and complete reports on individual permits and conservation plans every 3 years.

Modification of pemits. New § 10(a)(2)(E) (p.27) addresses the important question of whether and how actions allowed under a § 10 incidental take permit may be modified. The bill expressly would allow the Secretary to require a permittee to implement conservation measures, in addition to those specified in the plan if they are necessary to ensure that jeopardy is avoided and if the Secretary pays the costs that are in excess of the reasonably foreseeable costs specified in the plan. Funds to carry out these additional measures would be available under the Habitat Conservation Plan Fund in new § 10(a)(9) (p.35). Plans and permits would be keyed to being consistent with a recovery plan for the species involved, and this language would allow adjustments to avoid jeopardy should circumstances change so much that jeopardy became a possibility. It is not clear what could be included within "costs" - e.g. if a change required trees to be left standing, is the opportunity cost of the lost timber value a "cost" to be covered by the Secretary?

Revocation. New § 10(a)(4) (p.28-29) would direct the Secretary to revoke a permit issued under § 10 and suspend activities authorized by a permit if a permittee was not in compliance with the terms and conditions of the permit, the ESA, or regulations issued under the ESA, including not "substantially" complying with a conservation plan required for a permit, or exceeding the level of take authorized in a permit. Under new § lO(a)(5), (p.29), if a permittee "defaults" on any obligation under a conservation plan or an incidental take permit, the Secretary would be directed to "undertake actions to conserve each species covered by the plan and permit," and may use the proceeds of a performance bond or other financial security for this purpose. Note that the bill language varies as to whether substantial noncompliance is required or whether any failure to comply suffices. Also, it is not clear what the Secretary is to do by way of undertaking actions in this regard, considering that private lands are involved -- would the Secretary seek a court order directing that certain actions be performed or not performed, or would the Secretary enter lands to carry out actions? Can the penalty provisions of the ESA be immediately invoked for takes not in accordance with a permit or must a revocation action occur first? The revocation provision applies to all permits issued under § 10, not just to the incidental take permits.

Low-effect, small scale permits. Like S. 1180, H.R. 2351 contains provisions for an easier permitting process for low-effects projects. A new paragraph (6) (pp. 30-32) would be added to § 10(a) to authorize streamlined application and approval procedures for loWeffect, small scale plans and permits. Applicants for these permits would not be required to post bond or provide the financial surety other applicants would. These permits could be issued if the action is expected to be of less than S years duration; the plan is applicable to fewer than 5 acres (there is elaboration on this point); the project in question is not part of a larger project with additional impacts; the Secretary determines the plan will have a negligible cumulative and individual impact on the recovery of listed species; and the action is not related to other action with addition impacts (with elaboration on this point). The Secretary is to monitor the implementation and results of these permits to ensure they do not jeopardize the continued existence of any listed species. If additional measures are needed to avoid jeopardy, the Secretary may require them and pay the costs of their implementation. As noted previously, it is not totally clear whether the requirements of new § 10(a)(2) other than bonding apply to low-effects permits.

The requirement for use of the best scientific and commercial information available seems to apply to low-effect permits, because it applies to all perrnits allowing take. This requirement could remove much of the advantage of the low-effect permit option.

Monitoring. New § 10(a)(7) (p. 32) would direct the Secretary to monitor all conservation plans to ensure they do not jeopardize the continued existence of a listed species. There is no comparable provision in S. 1180.

Bond requirements. New § 10(a)(8) (p. 32) would require that, before an incidental take permit is issued, the applicant must post a performance bond payable to the United States and conditioned on faithtiil performance of the permit, or deposit other forms of frnancial security of the same or greater value as the bond. The amount would be determined by the Secretary, based on mitigation requirements and should be sufficient to complete all conservation measures to be implemented by the permittee. Bond for large-scale plans or for very expensive plans could be in the form of phased bonds or deposits for different parrs of the plan. Similarly, bond or security could be released in parts as well, alter public notice and a review by the Secretary of whether the plan in question was adequately implemented. Bond would not be required for low-effect, small scale permits. (S. 1180 does not contain bond or surety requirements.)

Habitat Conservation Plan Fund. New § l0(a)(9) (p.35-37) would create a Habitat Conservation Plan Fund in the Treasury that would consist of donated funds, appropriations, fees charged for permits, amounts received as natural resource darnages under new § 12 of the ESA and proceeds of performance bonds and other security. Monies from the Fund (capped at $20 million annually) would be permanently appropriated and could be used by the Secretary to cover the costs of additional conservation measures necessitated by changed circumstances, additional requirements under paragraph (6) for recovery of a species under a low-effect permit, ²⁴ additional actions taken by the Secretary to conserve species under paragraph (5) upon default of a permittee, certain permitting costs, and restoration or replacement of natural resources with respect to which natural resource damages were paid into the fund.

Multispecies plans. A new paragraph (10) would be added to § 10(a) (pp. 37-39) to authorize multiple landowner, multispecies planning. The Secretary would be directed to encourage the development of these plans and to cooperate to the maximum extent practicable with states and local governments to streamline permitting processes across jurisdictions. This cooperation could include issuing incidental take permits to states, local governments, or groups of local governments who would then issue incidental take "certificates" to landowners. These certificates appear to be similar to federal incidental take permits. States, local governments, or groups of local governments would have to meet the bond or security requirements, including possibly pooled bonds, with respect to all certificates, or ensure that the landowner to whom the certificate is issued meets those requirements. Another requirement would be that the recipient state, etc. ensure that all certificates would be consistent with the permit and approved habitat conservation plan; that the recipient would provide adequate public notice and opportunity to comment; and that the recipient would have adequate authority to enforce the terms and conditions of certificates. The Secretary would be required to ensure broad participation in the development of the plan, to provide technical assistance to the maximum extent~practicable, and to give these plans priority consideration for funding under § 6.

Notice; public participation. New § l0(a)(11) (pp. 39-40) would require the Secretary to publish a notice in the Federal Register and provide a 60-day comment period on all applications for § 10 permits. A notice of permit approval with agency responses to public comments must also be published. These requirements would apply to all § 10 permits, including the low effect/small scale permits.

The Secretary also would be required to publish notice of agency involvement in the development of large-scale conservation plans and invite members of the public to participate in the development of large-scale conservation plans and multiple landowner, multispecies plans. The Secretary would promulgate new regulations to establish a process for development of these plans which ensures an "equitable balance" of participation among citizens with a prirnary interest in carrying out economic development activities that may affect species conservation and citizens whose primary interest is in species conservation. Meetings of participants would not be subject to the Federal Advisory Committee Act, but would be open to the public. The Secretary would be directed to invite independent scientists (as defined in the bill with respect to recovery plans) with expertise on the relevant species to provide input. A large-scale conservation plan would be defined as one that would cover a significant portion of the range of a threatened species, endangered species, candidate species, or species proposed for listing.

Community Assistance Program. New § l0(a)(12) (p. 42) would direct the Secretary to establish a Community Assistance Program to provide information to local governments or property owners. Employees of the Fish and Wildlife Service would be assigned to field offices to provide information on local impacts of listings, recovery planning efforts, and other actions, as well as to provide assistance on obtaining permits and achieving other compliance with the ESA, training federal personnel, and serving as a focal point between federal agencies and property owners and local governments.

Natural resources damages. Section 110 of the bill (p. 44-45) provides that persons, who in violation of the ESA, negligently damage any member or habitat of a listed species would be liable to the United States (or to a state under management or cooperative agreements) for the costs incurred in restoring or replacing the member or habitat. Monies received by the United States would be deposited in the Habitat Conservation Plan Fund and could only be obligated for the acquisition or rehabilitation of damaged habitat or populations. It is not clear whether this section dovetails adequately with the wording of the prohibitions in § 9 and the penalties of § 11. The new provision refers to negligent damage of habitat, yet both the civil and criminal penalties of § 11 are keyed to persons who "knowingly violate" the Act. Therefore the wording of the new provision, which refers both to negligent actions and to "violation of" the ESA is unclear. If a new type of enforcement action is intended, perhaps a clarified statement of what the prohibited action is and what penalties would apply could be included. The remainder of the new provisions authorize a civil action by the Secretary under the subsection and require notice of the action to the person against whom the action is commenced.

Tax incentives. Title II of the House bill would provide for various tax incentives to encourage conservation agreements. These agreements apparently would be separate from those otherwise authorized in the bill. Whether agreements could be structured to serve both purposes is not clear, but is not specifically prohibited.

23 See 50 C.F.R. § 17.3, supra, which requires that disruption of normal behavioral patterns actually kill or injure wildlife to constitute harm.

24 New paragraph (6) (p.32) would authorize the Secretary to impose and pay for additional measures under a low effect permit if the measures are necessary to avoid jeopardy to the continued existence of a species. Therefore, the reference here to "recovery" may be incorrect.