The Endangered Species Act moves out of the forest and into the urban environment

Developers seeking federal permits should be prepared to participate in ESA consultation

Steven Hill

What do you think of when someone mentions the Endangered Species Act (ESA)? My guess is that most people think of those high-profile species that were facing extinction in the 1960s, such as grizzly bears, bald eagles and gray wolves. If you live in the Pacific Northwest, you probably also think of the northern spotted owl and perhaps the marbled murrelet. These species have been mentioned in news articles and around the water cooler for years. Most of us, however, have seen these species only in books or on television, rarely in the wild. That is because they live in old-growth forests or in remote areas away from human populations.

More recently, we have seen more and more ESA-listed species with home ranges that extend into heavily urbanized areas. In the Pacific Northwest, the prime example has been the listed salmon and steelhead species that spend a portion of their lifespan in Puget Sound and the rivers, streams and creeks that flow through some of our largest cities. The list of threatened and endangered species is continuing to expand. In fact, the latest count includes 1,576 species of plants and animals listed as either threatened or endangered in the United States alone. Currently, there are hundreds of candidate species being considered for listing. Therefore, it is inevitable that some of these newly-listed species will impact human activities within the urban environment.

Background

In the early 1970s, the United States Congress was faced with the dilemma of having to address the problem of human-induced species extinction. Congress had earlier passed laws intended to protect endangered wildlife, but they had proved to be ineffective and insufficient. This led to the ESA’s passage in 1973.

In the famous snail darter case, the U.S. Supreme Court described the ESA’s scope and breadth by stating, “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost” (Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 – 1978). That is a very powerful message, and it is under that framework that the ESA has been implemented over the past 40 years.

The ESA is implemented in three primary ways: by prohibiting “take” of endangered and threatened species or their critical habitat, by prohibiting federal agency action that might jeopardize a listed species or adversely modify or destroy its critical habitat, and by requiring that federal agencies develop programs to conserve and recover listed species. The “take” prohibitions are broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. § 1532(19)). Essentially, any activity that might disrupt the lifecycle of a listed species is prohibited.

The prohibition on federal agency actions that might jeopardize a listed species has a broad reach as well. It not only affects federally sponsored projects, but also applies to any project or activity that involves federal funding or requires a federal permit. Not surprisingly, this affects most development projects within the urban environment and implicates many industrial activities that need federal permits to operate.

Implications for the Pacific Northwest

These strict prohibitions are going to have ever-growing implications for businesses in the Pacific Northwest. The main reason is that newly-listed species indigenous to this region are starting to directly affect populated urban areas. Two species listed in the past five years provide good examples of how these new listings can affect new and ongoing activities in the Pacific Northwest.

In 2010, the eulachon, commonly referred to as “smelt,” was listed as a threatened species by the National Marine Fisheries Service (NMFS). The eulachon is a species of anadromous fish that lives most of its lifecycle in the Pacific Ocean, but returns to Pacific Northwest rivers and streams to spawn. The smelt is a broadcast spawner that releases its eggs into the water column. These eggs eventually adhere to the sediments of the spawning river, and when they hatch, the smelt larvae enter the water column and migrate to the ocean via river currents.

What differentiates the smelt from other listed fish species is the sheer numbers of adult fish and larvae that are present in Pacific Northwest rivers. For example, a recent draft Biological Opinion issued by NMFS estimates that the 2013-2014 Columbia River smelt run included 185 million returning adults and a median estimate of 2.9 trillion out-migrating eggs/larvae. While these numbers might make you wonder why the smelt is a threatened species in the first place, the more pressing question is how NMFS will assess what is considered acceptable “take” for purposes of permitting new and existing activities.

Given the large numbers of individual adults or larvae, it is inevitable that any activity that occurs in or around a spawning river system will cause some level of take. This is especially true given that the smelt eggs and larvae are microscopic and therefore cannot be screened from the activity. Accordingly, if your project or business involves dredging, water withdrawal, and any type of construction in the water, you will be facing NMFS scrutiny when you apply for the necessary permits to conduct the activity.

In 2013, the streaked horned lark became a listed threatened species. Unique to this species is its preferred habitat. The streaked horned lark is a ground nesting bird that prefers relatively open sandy areas near water. Interestingly, this describes the locations of many major airports in the Pacific Northwest, as well as industrial development sites along the Columbia River and in Puget Sound. As you can imagine, having a threatened bird that likes to nest next to an airport can create a very challenging situation. In other words, birds and airplanes don’t mix!

These are just two examples of the ESA’s growing impact on urban areas in the Pacific Northwest. As more species are added to the ESA lists, we expect to see more impacts and increased process costs.

If you are seeking a federal permit to develop or redevelop your property or to continue or expand your operations, be prepared to participate in ESA consultation with the permitting and resource agencies. Be knowledgeable about the ESA’s potential impacts on the permitting process and always anticipate the additional costs of compliance.

Being prepared and addressing the ESA issues up front will ideally avoid lengthy and potentially costly delays in getting your project or permit request approved.

Steven Hill is a partner at Miller Nash Graham & Dunn. Working out of the firm’s Vancouver office, he concentrates his practice in environmental and natural resources, insurance recovery, admiralty and land use law. He can be reached at 360.619.7004.

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