How to Respond to Potential Species Questions and Answers

Transcription

How to Respond to Potential Species Questions and Answers
How to Respond to Potential Species
Listings Under the Endangered Species Act
Susan Combs
Texas Comptroller
of Public Accounts
Questions and Answers
Q: How does the listing of a species as threatened or
endangered under the Endangered Species Act (ESA)
affect me or my land?
A: When a species is listed as endangered or threatened,
the ESA can restrict the use of land and/or water which
serves as the species’ habitat by adding regulatory hurdles
and costs to otherwise lawful activities such as creating
roads, building stock tanks or developing mineral interests
beneath your property. A listing may also diminish property
values and negatively affect military preparedness at
affected installations. Please see http://texasahead.org/
texasfirst/species/pdf/Texas_response_EPA.pdf to learn
more about the effects of this federal law.
Q: Once a species is listed, does the ESA pose limitations
and restrictions on private property?
A: Yes, the ESA prohibits “take” of any endangered
species by any “person.” “Take” includes harassing,
harming, pursuing, shooting, wounding, killing, capturing
or collecting listed species, or attempting to engage in
any such conduct. Obviously, the ESA and corresponding
regulations can and do impact private property owners when
a species is listed by placing restrictions on activities that
may result in the “take” of the species. Such restrictions
may also be imposed on private industry impacting the
economy.
Q: Can someone stop a species from being listed?
A: Stopping a species listing is not easy. First, legal options
are limited as the ESA only allows legal challenges of “final”
federal agency ESA listing decisions. So a legal challenge
to a listing decision generally cannot occur until after the
decision has already been made. Judges are generally not
inclined to substitute their judgment for that of a federal
agency in these types of cases. For example, in the 30 cases
or so where final listing decisions have been challenged,
only a handful were returned to the federal listing agency
for review and of these only in 2 cases were the species
removed from the endangered list. For more information on
legal issues surrounding federal ESA decisions see http://
www.texasahead.org/texasfirst/conservation_plan/docs/
LegalChallenges.pdf
Q: If legal challenges are difficult or limited in success,
are there other options available to stop a species listing
and protect the economy and private property?
A: Yes. First, the ESA requires that species listings be
based solely on the “best scientific and commercial data
available.” Unfortunately this term is not defined which
has led to species being listed with limited scientific study.
It is important to add scientific rigor to the ESA and the
listing process to ensure species are listed based on the best
science available. So it is critical to gather and submit
quality research to the listing agencies. Providing accurate
science helps ensure the best science is available when
determining if a species should be listed and raises the
standard for data used in listing decisions.
Second, the development and implementation of voluntary
conservation agreements prior to a species listing, such as a
Candidate Conservation Agreement with Assurances (CCAA),
can preclude the need to list a species.
Q: What is a CCAA?
A: CCAAs are voluntary conservation agreements approved
and permitted by the federal listing agency (e.g. U.S. Fish
and Wildlife Service) that are implemented by non-federal
property owners who agree to manage lands or waters to
remove threats to candidate or proposed species. While
other agreements can be made after a listing decision has
occurred (see below), CCAAs are entered into before the
species is listed as threatened or endangered. There are
multiple benefits to participating. First, CCAAs can preclude
the need to list a species as a result of the voluntary
conservation efforts. However, if a species ultimately gets
listed, binding assurances are provided to the non-federal
property owners. If they continue to comply with the terms
of their CCAA, they will not be subject to additional
regulatory obligations that exceed those agreed to at the
time the agreement is signed. Further, CCAAs may authorize
a certain amount of “take” if the species is later listed.
Q: Have CCAAs been successful in stopping a species
listing?
Like CCAAs, HCPs outline ways of maintaining, enhancing
and protecting a given habitat type needed to protect an
endangered or threatened species. HCPs usually include
measures to minimize impacts and may include provisions
for permanently protecting land, restoring habitat and
relocating plants or animals to another area. Unless you
are already participating in a voluntary CCAA, an HCP is
required before an incidental “take” permit may be issued.
Please see the definition of incidental take at
http://texasahead.org/texasfirst/esa/glossary.php. Once
listed, the taking of a species without a valid permit can
result in steep fines and even the possibility of harsh
criminal penalties.
Q: Where is more information available about the ESA?
A: Yes, the Texas Conservation Plan for the Dunes
Sagebrush Lizard (which includes a pre-listing CCAA and a
post-listing Habitat Conservation Plan) was a key factor in
the U.S. Fish and Wildlife Service’s decision not to list the
species. Please see U.S. Department of Interior press release:
http://www.fws.gov/southwest/es/Documents/R2ES/NR_
for_DSL_Final_Determination_13June2012.pdf.
A: It is important to understand federal environmental laws
such as the ESA and how they may impact private property
and industry. It is for this reason the website
www.KeepingTexasFirst.org has been developed. Keeping
Texas First provides background and other useful
information that can be used to prepare for and respond to
federal regulatory actions.
Q: If a species is listed, what options are available to
continue otherwise lawful activities?
A: When a species is listed as endangered under the ESA,
conservation agreements, such as Habitat Conservation
Plans (HCPs), which are approved and permitted by the
federal listing agency, can be developed and implemented to
continue otherwise lawful activities and “take” a species.
Scan this QR code
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Comptroller’s Keeping
Texas First website.
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Economic Resources for
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Keeping Texas First
Tracking the Economic Impact of Federal Action on Endangered Species, Air and Water
What Texans Need to Know
With the majority of the state’s land privately owned, Texas is defined by its landowners and their holdings. That’s
why Texans need to know the economic impact of federal action on our most prized natural resources: our land, water, energy and even the air we breathe. The government of Texas has a thousand points of interaction with Washington, interactions that affect every part of our economy — and millions of Texans, every day. We need to make
sure decisions are made with input from the people who know the state best. Read more…
Species Impact Spotlight
Where are they?
Find details on species habitat ranges, estimated economic impact, state feedback and more for key species
in Texas on the federal review list.
See firsthand which areas of Texas may be impacted
the most by federal review of new listings of species as
endangered or for revisions of habitat areas.
Tracking the Economic Impact of Federal Action on
Endangered Species, Air and Water
GET INVOLVED: This website KeepingTexasFirst.org provides Texans with information on the ongoing
status of endangered species listing and other federal environmental actions affecting our state.
All of us need to remain aware of the profound effect new federal regulations will have on landowners,
businesses and communities across our state. Check back with us regularly and join the conversation.
On the Map
name of species goes here
Stay informed
Dates and Deadlines
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may be impacting Texas’ natural resources and
economic development.
Bookmark our calendar to make sure you know
about dates and deadlines related to federal action,
comment deadlines and other key timelines.
Publication #98-982 January 2014