Navigating the Endangered Species Act: Key Takeaways for Land Managers

As private sector organizations increasingly set ambitious goals to safeguard natural capital , land developers and site managers need to have a systemized approach to evaluate land projects. Balancing the potentially conflicting objectives of stimulating economic development while simultaneously prioritizing an environmentally conscious “do no harm” approach presents a substantial challenge. This challenge is further magnified by the risks associated with regulations and litigation around development. In this article, we'll focus on Section 7 of the Act and its relevance for land developers.

While the ESA includes important provisions like citizen-suit and critical habitat protections, Section 7 is pivotal in guiding how development projects are assessed and managed in relation to endangered species. Section 7 of the Act requires that federal agencies work together to ensure their actions don't harm protected species or their habitats. In the construction industry, an ESA Section 7 review is often included as a requirement of federal permitting efforts relating to USEPA’s Clean Water Act.

To start, developers need to consider whether their actions will have any impact on endangered species or critical habitats. The Information for Planning and Conservation (IPaC) database, provided by the U.S. Fish and Wildlife Service (USFWS), serves as a valuable tool for obtaining general information on species and critical habitat locations. Keep in mind that further consultation with the local USFWS Ecological Services Field Office may be encouraged or required following online review using the IPaC database. Alternatively, state-specific fish and game agencies as well as State or Tribal Heritage Centers can determine if ESA-listed species are located on or near your site.

If an area falls within species-specific critical habitat or if a developer’s actions may impact an endangered or threatened species, developers should engage in consultation with the USFWS and/ National Oceanic and Atmospheric Administration (NOAA) Fisheries (formerly National Marine Fisheries Service.) Indeed, Section 7 of the ESA mandates that federal agencies consult with the USFWS and/or NOAA Fisheries when they initiate, finance, permit, or approve an activity that could impact threatened or endangered species or their identified crucial habitats. This responsibility is passed to the developer to illustrate to the federal permitting authority that their project will not jeopardize endangered species. Provided that a listed species might be affected, consultation with USFWS or NOAA Fisheries occurs prior to permitting the activity.

Section 7 consultation typically occurs when private activities utilize federal funding, necessitate a federal permit, or are intended to take place on federal lands. Once the initial consultation is completed, additional coordination with agencies is unnecessary if the USFWS or NMFS concludes that the proposed activity will not impact a listed species or their vital habitat. If a project isn't linked to the federal government – meaning it's not approved, paid for, authorized, or carried out by a federal agency – then it doesn't need to go through a Section 7 review. But, if your project isn't connected to the federal government, you can still choose to check early on if it might affect any protected species.

Land developers need to be aware of the following key points regarding the consultation process under Section 7 of the ESA:

• Informal consultation: The federal action agency works with the USFWS or NOAA Fisheries to determine if a proposed action might affect listed species or critical habitats. If adverse effects are unlikely, informal consultation ends. Informal consultation is often informed by project-specific information provided by the developer.
• Formal consultation: If an activity is anticipated to have negative impacts, the responsible agency begins an official consultation with the USFWS or NOAA Fisheries. The formal consultation process involves submitting a complete initiation package, including project descriptions, timeline, maps, and impact information.
• Biological opinion: The USFWS or NOAA Fisheries provides a biological assessment using the most up-to-date scientific data, evaluating the impact of a suggested action, and deciding whether the initiative will lead to the "take" of a species listed as endangered or threatened or cause harm or negative alterations to vital habitats.
• Avoidance and minimization measures: Property owners and developers should collaborate with state and federal agencies to adopt time of year restrictions and/or best management practices that minimize impacts on listed species and critical habitats.

To effectively navigate the ESA, land developers should adopt a proactive approach in managing conservation efforts and engaging with relevant stakeholders. Due diligence should be conducted prior to formal consultation to allow for informed consultation. The following steps from the ESA provide a systematic roadmap for achieving these goals:

• Establish the environmental baseline: A thorough understanding of the environmental baseline is essential to make informed decisions about proposed development. This baseline should include past and present impacts of various federal, state, and private actions, as well as anticipated consequences of proposed development actions that have already undergone Section 7 consultation.
• Apply for incidental take permits and develop habitat conservation plans: When consultation with USFWS and/or NOAA Fisheries determines that an action is likely to impact a listed species, developers should consider applying for incidental take permits under Section 10 of the ESA. These permits, supported by habitat conservation plans, can provide property owners with increased certainty and flexibility, and can protect against future liability.
• Participate in candidate conservation agreements with assurances and safe harbor agreements: Landowners can benefit from participating in Candidate Conservation Agreements with Assurances as well as Safe Harbor Agreements, which are voluntary agreements that encourage conservation actions while providing assurances against additional restrictions. This approach can offer net benefits to the species and greater certainty in project development.