The Endangered Species Act (ESA) currently offers varying degrees of protection for more than 1,400 species of plants and animals inside U.S. borders. The federal government receives hundreds of petitions for consideration of additional species for inclusion each year. On average, federal agencies add 20 species of wildlife to their lists of protected species annually, which are chosen by rigid scientific criteria.
Any change to the ESA could impact the planning phase of proposed large scale projects. Therefore, engineering clients and developers must stay abreast of such modifications in order to maintain compliance and limit their legal liabilities.
As the ESA stands today, project proponents are required to ensure that the activities authorized within an environmental permit (e.g., to build, expand, remediate, etc.) comply with the most up-to-date provisions of the ESA, in addition to any state regulations. Before a company can expand or break ground on a new facility, it must consider all direct and indirect impacts of the proposed work activity on all federally-listed threatened or endangered species or its critical habitat.
A coalition of federal agencies is responsible for administering and implementing the provisions of the ESA. The two lead agencies that hold the most responsibilities are the Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) Fisheries Service. The final list of threatened and endangered species is maintained by the FWS.
The coverage for protections includes mammals, birds, fish, reptiles, insects, and crustaceans. It also covers a wide range of plants such as trees, flowers, and wild grasses. Due to the dangers of waste water runoff and exposure to food stores, the Office of Pesticide Programs (OPP) is also involved with enforcing the ESA.
ESA lists species in two categories: a) endangered and b) threatened. The status depends on the amount of extinction threat that each species faces. Endangered wildlife is a more critical designation, as it refers to species in imminent danger of extinction. Threatened species covers plants and animals that are likely to become endangered in the near future over a substantial percentage of its range.
The most controversial aspect of the ESA is Section 9, which vaguely bans any action that could result in the “taking” of any listed wildlife.
“Taking,” as defined by the ESA, is a complex concept that covers a wide range of actions. A “take” may involve actions or negligence which results in attempts to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” any of the species listed.
“Harass” covers any “intentional or negligent act or omission that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly impair normal behavioral patterns including breeding, feeding or sheltering.”
Furthermore, “harm” is defined to cover “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
Project proponents must adequately demonstrate that they have done a complete analysis of the impacts and have a detailed Habitat Conservation Plan in place. If the project proves likely to result in some form of “take,” the company is responsible for securing an incidental take permit. FWS offers technical assistance with this lengthy administrative process.
Throughout the project lifecycle, there also needs to be a consideration of how a protected species and its habitat will be affected by noise, light, smoke, dust, and the removal of vegetation. Direct effects are limited to actions that take place during implementation, while indirect effects result from the new situation after that project has been completed.
For more than four decades, the ESA has required a number of federal agencies to consult the FWS and NOAA Fisheries Service for the protection of a growing number of species. Beyond direct impacts, companies are held responsible for making certain that their projects and operations will not result in actions that jeopardize the survival of protected animals and plant life.
Furthermore, projects and operations must take responsibility for actions that result in significant damage or adverse modification of critical habitats. Weakening of ESA provisions, or shifting its authority to state agencies, is unlikely to occur, so project proponents must build ESA considerations and license evaluation into the earliest steps of their project designs.