The Obama administration, through the Fish and Wildlife Service (FWS) has been quite busy this year listing and delisting animals, habitats, and plants under the Endangered Species Act (ESA). And in a move that brought chuckles to some and immense concern to others, two prominent Republican lawmakers recently sent a letter to U.S. Environmental Agency (EPA) Administrator Gina McCarthy accusing the Agency of not requesting an ESA consult from FWS when drawing up the Clean Power Rule to control greenhouse gas (GHG) emissions from power plants. But, in the realm of your everyday operations, why should you care about the ESA?
What Is the ESA?
The ESA has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. The Act defines “endangered” as “any species which is in danger of extinction throughout all or a significant portion of its range.” “Threatened” is defined as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.”
Currently, the FWS lists 2,220 plants and animals as endangered or threatened.
Here’s Where You May Come In
Suppose you want to build or expand your company’s operations. Depending on the existence of a threatened or endangered plant or animal in the vicinity of your plans, you may have to obtain an “incidental takings” permit.
The ESA prohibits “taking” of an endangered or threatened animal. This means that you cannot “harm, harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect any threatened or endangered species.” “Taking” can also mean habitat alternation resulting in harm to the species. Whether on private or federal land, whether intentional or unintentional, the “taking” of a listed animal is illegal.
Note: Your state may have additional listings and protections for threatened or endangered species.
What Is an Incidental Takings Permit?
An incidental takings permit is a permit issued to a nonfederal party undertaking an otherwise lawful project that might result in the taking of an endangered or threatened species.
As part of the application for an incidental takings permit, you have to prepare an incidental take statement. According to the FWS, generally incidental take is calculated and expressed as the number of individuals reasonably likely to be taken or the extent of habitat likely to be destroyed or disturbed.
In addition, a habitat conservation plan (HCP) must accompany an application for an incidental take permit. The habitat conservation plan associated with the permit ensures that the effects of the authorized incidental take are adequately minimized and mitigated. As part of the HCP, you must show that you have the funds available to implement measures to monitor, minimize, and mitigate impacts to the endangered or threatened species. You also have to show that you looked at alternative actions to the takings and explain why you didn’t adopt any of the alternatives.
Other Programs Affected
Okay, so you are not planning on “taking” any threatened or endangered species. Here are examples of some environmental programs you may be involved in that have ESA implications.
Stormwater. In relation to stormwater permitting, the NOI for an MSGP requires certification that the industrial activity will not impact endangered or threatened species protected under the ESA. For construction permitting, the 2012 CGP requires certification in the NOI that the project meets one of six ESA eligibility criteria. Regardless of the criterion selected, an owner or operator must provide documentation in the stormwater pollution prevention plan (SWPPP) that is sufficient to support the determination that ESA requirements have been satisfied.
Pesticides. Along with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the EPA is therefore required to ensure that the registration of pesticides and their use are not likely to jeopardize endangered species.
Wetlands. Permitted discharges may not take, or jeopardize the continued existence of, a threatened or endangered species, or adversely modify or destroy the critical habitat of the species. The presence of these species indicates the need for more project reviews. No activity is authorized that is likely to jeopardize the continued existence of a threatened or endangered species or that will destroy species’ habitat.
Air permits. The impacts of a proposed project would have to be evaluated under these laws if any federally listed rare or endangered species are identified within the source’s impact area.
Hazardous waste. Evaluation of endangered species has to be taken into account in any siting of a treatment, storage, and disposal facility (TSDF).
NPDES permits. One of the considerations in determining if a NPDES permit is required is whether the wastewater discharges may jeopardize the continued existence of endangered or threatened species.
For more information or assistance with your Environmental and Health & Safety regulatory compliance needs, contact Ralph Carito at Total Environmental & Safety, LLC (Total) at rcarito@TotalEnviron.com or 908-442-8599.