Endangered Species Act – Part 3 – Never swat a fly

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Endangered Species Act – Part 3 – Never swat a fly

by Hugh Holub on May. 25, 2011, under Center for Biological Diversity, climate change, endangered species act, environment water and energy, global warming, litigious environmental groups, politics, Western Watershed Project, WildEarth Guardians

Delhi Sands Fly

Endangered Species Act – Part 3 – Never swat a fly

The third part of the use of the Endangered Species Act in the war against the American economy is Section 9 …. Which makes it a felony to “take” an endangered species.

The Endangered Species ActBy Virginia S. Albrecht and James N. Christman of Hunton & Williams LLP

Section 9: “Take” of Endangered or Threatened SpeciesESA § 9 prohibits everyone, private person and federal agency alike, from “taking” endangered wildlife. The regulations extend this to threatened animals (see e.g. , 50 C.F.R. §§ 17.31, 17.21). “Take” includes “harming” a listed species, [12] and “harm” is defined by FWS regulation to include habitat alteration:
Harm in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impacting essential behavioral patterns, including breeding, feeding, or sheltering.

50 C.F.R. § 17.3. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon , 515 U.S. 687 (1995). Section 11(b) of the ESA makes it a crime knowingly to “take” an endangered species without a permit or violate a regulation implementing the ESA. 16 U.S.C. § 1540(b)(1). You are permitted, however, to defend yourself of others from bodily harm. 16 U.S.C. § 1540(b)(3).

This prohibition against “take” covers fish and wildlife but not plants. Cf . 16 U.S.C. § 1532(8) and § 1532(14). It is, however, illegal to remove an endangered plant from federal land and reduce it to possession, and federal law also federalizes state law prohibitions on the taking of plants.

The Secretary may issue a permit for an “incidental take” of listed species that are incidental to and not for the purpose of a proposed activity (ESA § 10). Permits may be issued only after the landowner submits a “habitat conservation plan” (HCP), including proposed mitigation measures and an explanation of why alternatives were rejected. If FWS finds that the “take” will be incidental, will be satisfactorily mitigated, and will not appreciably reduce the species’ chances for survival or recovery, it must issue the permit. There has been a move afoot recently to incorporate a “recovery” standard into HCPs, which would mean that HCPs would have to contribute affirmatively to the recovery of affected species, whereas under present law an HCP can be approved so long as it does not degrade the species further. HCPs can be very expensive to prepare and are especially burdensome for small businessmen and small landowners.

In 1996 the FWS and NMFS issued a joint Handbook for Habitat Conservation Planning and Incidental Take Permitting Process (HCP Handbook), which explains that HCPs may be processed under three models. 61 Fed. Reg. 63,854 (December 2, 1996); see also notice of draft addendum, 64 Fed. Reg. 11,485 (March 9, 1999). It created a “low-effect” HCP category for small landowners and other low-impact projects that have only minor or negligible effects on listed species or other environmental resources. A low-effect HCP is exempt from the National Environmental Policy Act (NEPA) and does not require an environmental assessment or environmental impact statement. “Moderate” HCPs require an environmental assessment, and “high-effect” ones require an environmental impact statement.

FWS’s and NMFS’s “no surprises” rule, 63 Fed. Reg. 8859 (February 23, 1998), allows an applicant for an incidental take permit to negotiate long-term assurances that no additional mitigation of impacts will be required, even if circumstances change. The rule provides some assurance that no additional land use restrictions or financial compensation will be required from the permit holder if unforeseen circumstances arise indicating that additional mitigation is necessary. It has been challenged in court by environmentalists.

In mid-1997 FWS and NMFS published a series of proposals having to do with their Safe Harbor Policy and Candidate Conservation Agreements. [13] The final version was published in June 1999. 64 Fed. Reg. 32,706, 32,717, 32,726 (June 17, 1999). Safe Harbor agreements are an attempt to soften the rule that no good deed goes unpunished. Landowners are often willing to manage their properties so as to improve habitat but may fear that if they are too successful and endangered animals colonize their land, they will then be prohibited from using the land in the future because of the § 9 “take” prohibition. In return for voluntarily undertaking land management activities that will provide a “net conservation benefit,” the landowner receives assurances that he will be allowed to alter or modify the property even if the alteration will result in an incidental “take” that would return the species back to originally agreed-upon “baseline conditions.” 62 Fed. Reg. 32,180 col. 1-2 (June 12, 1997).

Candidate Conservation Agreements, as their name suggests, apply to species that are not yet listed as threatened or endangered but are being considered for listing. They provide assurances that, if the covered species are eventually listed, the property owners or state or local land managing agencies will not be required to do more than the agreement calls for. 62 Fed. Reg. 32,183 col. 3 (June 12, 1997).

More…

Once you have a plant or animal designated as threatened or endangered, and you have gotten the critical habitat or protected habitat designated as widely as possible….the teeth in the Endangered Species Act is the “take” provision.

You cannot harm the plant or animal because if you do…you go to jail.

If you have lots of time and money and still want to go ahead with your protect that might cause a “taking” of an endangered species…you have to make a deal with the US Fish and Wildlife Service. The deals are often called “habitat conservation plans”.

This often means modifying the design of your project or setting aside a portion of your project site as protected or critical habitat for the endangered species.

A prime example of how this works is the Delhi Sands Fly which lives near San Bernadino, California.

When the Delhi Sands Fly was first listed as an endangered species, serious consideration was given to shutting down Interstate 10 for the two week period when the Delhi Sands Fly is breeding.

Here is a very recent example of the impact of the Delhi Sands Fly…a “fly perserve” was created:

To minimize and mitigate incidental take of the Delhi Sands flower-
loving fly within the project area, the Applicant proposes to set aside
approximately 20 ac (8 ha) as a permanent, on-site conservation area.
The Applicant would fund the restoration and management of the
conservation area for the Delhi Sands flower-loving fly through an
agreement with the Riverside Land Conservancy, a nonprofit land trust.

A couple of other items of interest on the Fly going back to the 90s. At one time I10 was almost closed down for the fly.

Also construction on a hospital was delayed for over a year and about $3 million in cost was added all for the fly.

(Friday, May 20, 2011)]
[Notices]
[Pages 29260-29261]

Incidental Take Permit; San Bernardino County, CA; Proposed
Habitat Conservation Plan, Draft Implementing Agreement, and Draft
Environmental Assessment

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have
received an application from Kinder Morgan Energy Partners, L.P.
(Applicant), for an incidental take permit under the Endangered Species
Act of 1973 (Act), as amended. We are considering issuing a 25-year
permit to the Applicant that would authorize incidental take of the
endangered Delhi Sands flower-loving fly incidental to activities
related to operations and maintenance of storage and distribution
facilities for petroleum products within the Colton and Colton North
Terminals, and with habitat restoration and management on a proposed
on-site conservation area located in the cities of Rialto and Colton,
San Bernardino County, California. We request public comment on the
proposed HCP, draft Implementing Agreement, and draft Environmental
Assessment for the Applicant’s proposed activities.

DATES: Send written comments on or before July 19, 2011.

ADDRESSES: Please send written comments to Jim Bartel, Field
Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife
Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011.You also
may send comments by facsimile to (760) 431-5902.

FOR FURTHER INFORMATION CONTACT: Ken Corey, Assistant Field Supervisor,
at the Carlsbad Fish and Wildlife Office address above; telephone (760)
431-9440.

SUPPLEMENTARY INFORMATION: We have received an application from Kinder
Morgan Energy Partners, L.P. (Applicant), for an incidental take permit
under the Endangered Species Act of 1973 (Act), as amended. We are
considering issuing a 25-year permit to the Applicant that would
authorize take of the endangered Delhi Sands flower-loving fly
(Rhaphiomidas terminatus abdominalis) incidental to activities
described in the Applicant’s proposed Habitat Conservation Plan (HCP).
The permit, if issued, would authorize incidental take of the species
associated with proposed site preparation, future construction, and
routine operations and maintenance of storage and distribution
facilities for petroleum products on approximately 20 acres (ac) (8
hectares (ha)) within the Colton and Colton North Terminals, and with
habitat restoration and management on a proposed approximately 20-ac
(8-ha) on-site conservation area, located in the cities of Rialto and
Colton, San Bernardino County, California.

Background

Section 9 of the Act and Federal regulations prohibit the “take”
of fish and wildlife species Federally listed as endangered or
threatened. Take of Federally listed fish or wildlife is defined under
the Act as to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect listed species, or to attempt to engage in any such
conduct (16 U.S.C. 1538). “Harm” includes significant habitat
modification or degradation that actually kills or injures listed
wildlife by significantly impairing essential behavioral patterns such
as breeding, feeding, or sheltering (50 CFR 17.3). To “harass”
includes the carrying out of an intentional or negligent act or
omission that creates the likelihood of injury to wildlife by annoying
it to such an extent as to significantly disrupt normal behavioral
patterns such as breeding, feeding, or sheltering (50 CFR 17.3). Under
limited circumstances, we may issue permits to authorize incidental
take, which the Act defines as take that is incidental to, and not the
purpose of, the carrying out of otherwise lawful activities.
Regulations governing incidental take permits for threatened and
endangered species are found in the Code of Federal Regulations (CFR)
at 50 CFR 17.32 and 17.22, respectively. The incidental take permit, if
issued, would confer assurances to the Applicant regarding the
endangered Delhi Sands flower-

[[Page 29261]]

loving fly under the Service’s “No Surprises” regulation at 50 CFR
17.22(b)(5). Take authorization for the Delhi Sands flower-loving fly
would become effective upon permit issuance.

Project Location

The Applicant is proposing site preparation (vegetation clearing
and grading), future construction, and routine operations and
maintenance of storage and distribution facilities for petroleum
products on approximately 20 ac (8 ha) within the existing Colton and
Colton North Terminals and their respective pipeline easements in San
Bernardino County, California. The Colton Terminal is located in Rialto
and Colton, on the east side of Riverside Avenue, south of Slover
Avenue, and north of Santa Ana Avenue. The Colton North Terminal is
located in Colton, on the east side of Sycamore Avenue, and north and
south of Slover Avenue. The pipeline easements for the terminals
traverse the cities of Ontario, Fontana, Rialto, and Colton, from the
western end of Ontario International Airport to the Santa Ana River.
Land uses surrounding the terminals include petroleum facilities, city
streets, vacant lands, a flood control channel (Rialto Creek), and the
Colton Dunes Conservation Bank (operated by Vulcan Materials Company as
a conservation bank for the Delhi Sands flower-loving fly).

Project Information

The Applicant is proposing a variety of projects located both on
and off the terminals. These projects are as follows:
(1) Clearance of all vegetation for future developments on several
of the vacant parcels located on the Colton and Colton North Terminals.
(2) Construction of the Calnev Expansion Project, a new 16-inch-
(41-centimeter-) diameter multiple-product pipeline in Colton. This
project also includes the construction of a new electrical transmission
line located just east of the Colton North Terminal.
(3) Future development of approximately 6.19 ac (2.5 ha) in the
westernmost area of the Sycamore North Parcel.
(4) Routine operations and maintenance of all facilities, including
excavations, inspections, and repairs to all the Applicant’s pipelines
and facilities located within the species’ habitat. The combined total
length of pipeline to be covered under the permit would be
approximately 26 miles.
(5) Inspection, repair (if necessary), and permanent reburial of
the exposed portion of Line Section 111, which is located on lands
owned by Union Pacific east of the Colton North Terminal.
(6) The placement of Southern California Edison (SCE) substation
facilities (i.e., electrical transmission line tower, access roads,
etc.) off site, within lands owned by the Union Pacific Railroad
Company, just outside the northeastern boundary of the Colton North
Terminal.
Based on the results of focused surveys, we consider undeveloped
portions of the proposed project area, which contain habitat of varying
suitability, as occupied by the Delhi Sands flower-loving fly.
Therefore, we have determined that the Applicant’s proposed activities
would result in incidental take of the Delhi Sands flower-loving fly.
No other Federally listed species are known to occupy the site.
To minimize and mitigate incidental take of the Delhi Sands flower-
loving fly within the project area, the Applicant proposes to set aside
approximately 20 ac (8 ha) as a permanent, on-site conservation area.
The Applicant would fund the restoration and management of the
conservation area for the Delhi Sands flower-loving fly through an
agreement with the Riverside Land Conservancy, a nonprofit land trust.

National Environmental Policy Act

We have prepared the draft Environmental Assessment under the
National Environmental Policy Act, as amended (NEPA; 42 U.S.C. 4321 et
seq.), to analyze the impacts of authorizing incidental take of the
Delhi Sands flower-loving fly, based on the Applicant’s application for
an incidental take permit and the proposed HCP included with the
application. The proposed HCP describes the Applicant’s proposed
development activities and the measures the Applicant will undertake to
minimize and mitigate the effects of incidental take to the maximum
extent practicable. The proposed issuance of an incidental take permit
is a Federal action requiring Service compliance with NEPA and its
implementing regulations at 40 CFR 1506.6. Our draft Environmental
Assessment analyzes the environmental consequences of three
alternatives: (1) The “Proposed Action,” which would result in
Service issuance of an incidental take permit and implementation of the
Applicant’s proposed HCP; (2) an “Other Compensation Lands”
alternative, which would involve permit issuance and implementation of
a HCP based on the purchase of credits at the Colton Dunes Conservation
Bank; and (3) a “No Action” alternative, which would not involve
Service issuance of an incidental take permit or the Applicant’s
implementation of a HCP, would not result in impacts to the Delhi Sands
flower-loving fly, and would not establish any additional conservation.

One could argue that endangered species have more rights in America than do people.
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The Endangered Species Act series of articles:

Endangered Species Act…it ain’t what you think it is — Part 1

Endangered Species Act — Part 2– this land is not your land

Endangered Species Act – Part 3 – Never swat a fly

Background info on Endangered Species Act:

Endangered Species Act — an Introduction

Endangered Species Act — Which Animals and Plants are “Threatened” or “Endangered”?

Endangered Species Act — Section 7 Consultation

Endangered Species Act — USF&W Introduction and Key Sections

Endangered Species Act — Definition of ”Harm” and “Take”

Endangered Species Act–Listing and Critical Habitat

Endangered Species Act–Habitat Conservation Plans

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