The Endangered Species Act (ESA), perhaps the most stringent and unyielding of all environmental statutes, frequently has been used as a tool to stop or impede major federal and private projects. It has the power to shape even local land use decisions across the nation. Beveridge & Diamond has had extensive experience with the prohibitions and procedures of the federal ESA and analogous state laws. We work with clients to develop strategies for projects to get them through the ESA process, allowing development to proceed while the species are protected. We have also represented a number of clients in federal court litigation and enforcement actions.
Administered jointly by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service, the ESA has four main components relevant to our clients: (1) the Section 4 listing process; (2) Section 9’s “take” prohibition; (3) the consultation and attendant incidental take permitting process under Section 7; and (4) the incidental take permitting processes under Section 10.
The listing under Section 4 of a species as threatened or endangered (and its critical habitat designated) triggers Section 9’s “take” prohibition. Consequently, we encourage our clients to become active participants in this process. Greater awareness of the reach of the “take” prohibition also helps clients avoid criminal or civil liability.
Section 7 of the ESA and its implementing regulations require an action agency to consult with the United States Fish and Wildlife Service or National Marine Fisheries Service (or both, under certain circumstances) to ensure that federal actions ( e.g. ,Department of Transportation construction of a road or Army Corps of Engineers issuance of a wetlands fill permit) are not likely to jeopardize protected species or adversely affect their critical habitat. Although consultation is an obligation of federal agencies, the ESA Section 7 consultation process often affects private parties’ development plans. While formal Section 7 consultation nominally involves discussions between and among federal agencies, under certain circumstances there may be opportunities for private entities to inject themselves into these discussions and share their perspective regarding the federal actions under consideration.
The Section 7 and Section 10 incidental take permitting processes provide that a “take” which is incidental to an otherwise lawful activity may be permitted in certain circumstances and under certain conditions. Section 7 may be used if the project has a federal nexus; i.e. , requires a federal permit or receives federal funds. Under Section 7, the permitting or funding agency must consult with FWS in order to obtain an incidental take permit. Section 10 may be used for private projects without a federal nexus. Under Section 10, the project applicant must prepare a Habitat Conservation Plan (HCP) prior to obtaining an incidental take permit.
Navigating project approval when federally listed species may be impacted requires a complete understanding of the ESA. Our clients’ projects involve all the major elements of the Act, participating in the listing and/or critical habitat designation process, avoiding liability for an illegal “take,” navigating the incidental take permitting processes and keeping abreast of the various proposed guidance documents. Our attorneys bring practical experience gained from the U.S. Department of Justice and the U.S. Department of the Interior to all issues relating to the ESA.
Our firm’s experience with wildlife and species regulation extends beyond the ESA. Our attorneys also provide legal advice and guidance regarding legal obligations under and impacts of other significant, but perhaps less well-known, federal laws involving wildlife and species regulation, including the Migratory Bird Treaty Act, Marine Mammal Protection Act, Magnuson-Moss Fisheries Act, and the Lacey Act, among others.
Some examples of our work in this area include: